I concur in finding appellants' second, third and fourth assignments of error well taken and in the dismissal of appellees' assignment of error.
I dissent with regard to the finding of the majority that appellants' first assignment of error is not well taken and for the following reasons would find the assignment of error well taken.
It is generally agreed that there is very little case law in the state of Ohio which directly (or even indirectly) decides or even discusses the various issues presented by the case now before us. For this reason the matter, for the most part, comes down to statutory interpretation and it is, therefore, possible and even probable that well-intentioned citizens, public officials, attorneys and judges, depending as much on their background, philosophy, experience and vested interest can and will come to different conclusions, all of which might be reasonable. This concurring judge is no different in that general respect, the only difference being that in keeping with our living in a society of laws passed by legislators and interpreted by judges, this decision and opinion is accorded more weight than is given to some others who might hold a position contra.
All elected officials and specifically (as they are involved in the case at bar) county commissioners are required by the Ohio Constitution (Section 7, Article XV) and the Revised Code (R.C.3.22 and 3.23) to take an oath of office. In taking that oath the commissioners become generally responsible for the operation and functioning of the county. In addition to their general duties, they are required to carry out mandates imposed upon them by higher legislative authorities. Often these emanate from administrative agencies whose promulgation of rules and regulations has been given the force and effect of law by action of the legislature. Such is the situation in the case before us wherein the Ohio Environmental Protection Agency and the Ohio Board of Health made a finding by way of final administrative action that it was necessary to construct a trunk or main sewer in the county for sanitary purposes.
In facilitating county commissioners in carrying out these general and specific responsibilities, the legislature has enacted R.C. Chapter 6117. While it is true that R.C. 6117.30 and6117.31 do provide a method for financing the expense of constructing sewers and treatment plants and that such method (assessment) has been the one traditionally used, it is also true that said sections do not provide the only procedure which may be employed for financing purposes. As argued by the parties and discussed in the opinion herein, R.C. 6117.02 includes language which may or may not be construed to provide capital construction cost recovery by implementing connection charges and/or rates for the use of sewers and treatment facilities.
I find R.C. 6117.02 to be clear in its language, its intent and its purpose. While admitting the quoting out of context of part of the provisions of R.C. 6117.02, nevertheless I do so not unfairly and thus I find that "the board of county commissioners shall fix reasonable rates * * * for the use of the sewers or sewerage treatment or disposal works * * *" and "* * * [t]he board shall also establish reasonable charges to be collected for the privilege of connecting to the sewers * * *" is clear authority for the commissioners to establish user fees and connection charges. Further I find that "* * * [a]ll moneys collected as rents for use of such sewers * * * or as connection charges * * * shall be paid to the county treasurer * * *" and "* * * such funds shall be used first for the payment of the cost of the management * * * and second for the payment of interest or principal of any outstanding debt incurred for the construction of such sewers * * *" to be authorization to expend such sums collected for, among other purposes, the *Page 387 recovery or payment of construction costs. Therefore, I find that there is clear definitive language in R.C. 6117.02 to permit monies collected as connection charges (as well as user fees) to be used for the payment of interest or principal charges incurred for the construction of sewers and treatment facilities.
Having established the commissioners' authority, the only remaining question is whether or not the commissioners followed the procedures delineated in R.C. 6117.02 in levying a connection charge. The trial court found that the commissioners did not follow the proper procedures and this finding is the subject of appellants-commissioners' first assignment of error. I would find appellants' first assignment of error to be well taken.
In part, R.C. 6117.02 provides:
"* * * The board shall also establish reasonable charges to be collected for the privilege of connecting to the sewers or sewerage treatment or disposal works of the district with therequirement that, prior to such connection, such charges shall be paid in full * * * and no person shall be permitted to connect to the sewers or sewerage treatment or disposal works of the district until such charges have been paid in full * * *." (Emphasis added.)
On January 19, 1978, Commissioner Szollosi offered Resolution No. 98 and the same was passed with the concurrence of Commissioners Holzemer and Reddish. Those sections of that resolution that I find pertinent in deciding the question presented by appellants' first assignment of error are:
"Section 1. Definitions.
"(ff) `Tap-In Charge' shall mean a charge established pursuant to this and previous Resolutions for purposes of collecting revenues for debt service payments."
"Section 10. Tap-In Charges.
"(a) Except in the case of property owned by Lucas County, no person * * * whatsover shall connect * * * either directly or indirectly with a sanitary sewer in the * * * District of Lucas County * * * without first receiving a permit for such purpose in a form prescribed by the Sanitary Engineer and without firstpaying a tap-in charge determined in accordance with Section10(b) hereof." (Emphasis added.)
"(b) The Sanitary Engineer shall not issue a permit * * *until the applicant for such permit shall have paid a tap-incharge to be determined in accordance with the following: * * * but not less than $250.00." (Emphasis added.)
"* * *
"(e) In the case of premises served by a package wastewater treatment plant which is thereafter connected to a sewer served by the Maumee River WWTP, the tap-in charge established by thisSection shall be payable at the time the wastewater is divertedfrom the package wastewater treatment plant to a sewer served by the Maumee WWTP, and shall be paid by the owner of each building theretofore connected directly or indirectly to the package wastewater treatment plant." (Emphasis added.)
It is difficult to comprehend how the commissioners' intent could have been more clearly stated. The resolution speaks for itself and it complies with the mandates of R.C. 6117.02 which provides for the board to establish charges (see Section 10[b]) and to set forth a requirement that prior to any connection the charges shall be paid in full (see Sections 10[a], [b] and [e]). It should also be noted that this resolution was passed by the commissioners well before the June 1, 1978, date when the effluent from property owned by appellees was diverted into the county system.
Therefore, I find that the commissioners did comply with both the intent and the letter of the law as set forth in R.C.6117.02.
In addition, I find two other matters persuasive. The provision in the statute *Page 388 for the collection of a connection charge is for the benefit of the county in helping to amortize construction costs. Nowhere in the statute do I find a provision that if the county does not collect the connection charge before permitting tap-in, the county then has forever waived the right to collect the charge. If nothing else, logic dictates that the logistics of the construction of the new sewer and treatment plant, the disconnecting of properties being served by the package plant from the package plant, and the connecting of those same properties (whether it be through one connection or several) to the new sewer, requires an approach which is both systematic and has continuity, and to rule that the entire project be held hostage if one or more of the persons affected had not paid the charges in full before connection would seem to defy reason. Secondly, I find R.C. 6121.13 to be compelling authority in favor of the county proceeding as it has with the entire wastewater treatment system. The section provides for any governmental agency (the county) to cooperate with the Ohio Water Development Authority in any water development project and to "enter into such agreements with the authority as are necessary" and provide funds to carry out such agreements "by the levying of taxes, assessments, or rentals and other charges for the use of the utility system of which the water development project is a part * * *." It would seem that the county was well within its authority under several sections of the Revised Code to proceed as it has.
In today's world, public officials are given tremendous and often awesome responsibilities. Commensurate with those responsibilities there must be authority to meet the obligations imposed. If it is deemed that the authority is being abused, then the remedy is through the ballot box.
In the case before us, I find that the appellants met their responsibilities and did so within the confines of existing law. I, therefore, concur in the judgment which finds appellants' second, third, and fourth assignments of error well taken and which dismisses appellees' assignment of error. In addition, I would find appellants' first assignment of error to be also well taken.