DeMOISE v Dowell, 10 Ohio St.3d 92, 461 N.E.2d 1286
(April 18, 1984)
*92 A local board of health possesses the authority to require that
whenever a sanitary sewerage system becomes accessible to a property,
the household sewage disposal system shall be abandoned and the house
sewer directly connected to the sewerage system. This authority applies
regardless of the manner by which the sanitary sewerage system was
constructed. Such a requirement bears a real and substantial
relationship to the public health, is not unreasonable or arbitrary, and
does not constitute a deprivation of due process of law.
Plaintiffs-appellees in the present case are all homeowners who live
in Stark County, Ohio. Each of the homes involved in the present action
has been and is presently served by an individual household sewage
disposal (septic) system.
In 1978, a private developer began construction of a private sewer
line in the street adjacent to the property owned by appellees. This
sewer line was authorized **1288 by the Stark County Commissioners by
resolution executed pursuant *93 to R.C. 307.73. The purpose of this
construction was to permit the development of a new allotment, providing
sewer linkage to future owners. Upon completion, the sewer line was
donated to Stark County for use as a part of its sewerage system.
Appellees had no actual knowledge of the private sewer line until
construction began.
When the new sewer line became operational the Stark County Board of
Health ordered appellees to abandon their septic systems and to connect
their residences to the new sewer line. Appellees were later notified by
the county prosecutor that they would be prosecuted if they failed to
comply with the order. No inspection of the septic systems was made,
prior to the board of health order, to determine if they violated any
pollution or sanitation regulations. Apparently, the only inspection was
made one week before trial. It revealed that all septic systems, save
one or two, were in good operating condition.
Appellees filed this action seeking declaratory relief and seeking to
enjoin any further action being taken to force them to connect to the
sanitary sewerage system. The trial court held that the board of health
acted within the lawful scope of its authority to "protect the
public health by reducing the likelihood of health nuisances as a result
of malfunctioning septic systems." On appeal the court of appeals
reversed.
This cause is now before the court pursuant to the allowance of a
motion to certify the record.
Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., and David
L. Simiele, Canton, for appellees.
James R. Unger, Pros. Atty., Michael P. Zirpolo, David M. Bridenstine,
Canton, Squire, Sanders & Dempsey, James H. Woodring, Daniel
O'Loughlin, Cleveland, and John Gall, Worthington, for appellants.
Anthony J. Celebrezze, Jr., Atty. Gen., and Janet B. Stewart,
Columbus, urging reversal for amicus curiae, Ohio Department of Health.
WILLIAM B. BROWN, Justice.
The issue presented in this case is whether it is within the
authority of the Stark County Board of Health ("board") to
require that whenever a sanitary sewerage system becomes accessible to a
property, the household sewage disposal system must be abandoned and the
property connected to the sewerage system and, if so, whether such a
requirement constitutes a deprivation of due process of law. This court
concludes that the General Assembly has properly delegated its police
power with regard to public health and that therefore the board
possesses the authority to issue orders requiring connection to the
sanitary sewerage system. Since the enforcement of the regulations
requiring connection is a reasonable application of the police power to
protect the public health this court further concludes that there has
been no violation of due process.
[1][2] It is fundamental that the protection and preservation of the
public health is a prime governmental concern and thus a function of the
state. State, ex rel. Mowrer v. Underwood (1940), 137 Ohio St. 1,
27 N.E.2d 773 [17 O.O. 298]. It is *94 equally well established that the
state can directly exercise its police power concerning public health or
it may delegate that power to other governmental agencies. Ex parte
Company (1922), 106 Ohio St. 50, 139 N.E. 204.
The instant controversy arises from the fact that there are two
methods whereby county government in Ohio can provide for the
construction and utilization of sanitary sewer lines. R.C. Chapter 6117
permits county commissioners to construct public sewer lines. This
chapter provides for: the development of a plan, notice and public
hearing, and appellate procedures for owners of property to be assessed
for such improvements. In contrast, R.C. 307.73 permits construction by
a private entrepreneur with the permission of the county commissioners,
establishes the procedure **1289 for tap-in by non-participants, and
contains few of the procedural protections set forth in Chapter 6117.
The sewer line at the heart of this controversy was constructed under
the latter provision.
Appellees contend that the board has no authority to order hookups
where a private sewer line is constructed. First, appellees maintain
that R.C. Chapter 6117 represents the sole method by which mandatory
hookups may be made. In their view, the extensive array of procedural
safeguards for the construction of a public sewer, present in Chapter
6117, together with the authority R.C. 6117.51 provides for governmental
bodies to order sewer connections, represents a sort of preemption of
the subject by virtue of its very completeness. To give the board the
authority to promulgate rules and regulations requiring connection would
be, appellees argue, to allow the board to supersede the statutory
authority of Chapter 6117. Appellees also assert that R.C. 307.73
addresses voluntary rather than mandatory participation because it
contains no cross-reference to the protection of Chapter 6117 and
because it was intended solely for private purposes and not as a general
statute for public health.
Appellees' arguments, while possessing a veneer of fairness, do not
accurately reflect the thrust of the relevant statutes. In the first
place, whether or not R.C. 307.73 provides for mandatory connection is
not the issue before this court. The order requiring connection was
issued under the authority of the board's rules and regulations, not
under R.C. 307.73. Additionally, while appellees claim that use of R.C.
307.73 to construct the sewer line in question deprives them of their
constitutional rights, it should be noted that that statute specifically
calls for constructive notice via the filing of a copy of the resolution
granting permission to construct the sewer with the county auditor.
There is no indication that this procedure was not followed in the
present case.
While it is true that the legislature has delegated some authority
regarding sewers under R.C. Chapter 6117, the General Assembly has also
enacted an alternative and more comprehensive scheme of delegation of
authority concerning public health. In enacting R.C. 3701.02 the General
Assembly created a Department of Health. R.C. 3701.13 provides that
"[t]he department of health shall have supervision of all matters
relating to the preservation *95 of the life and health of the people *
* *." In R.C. 3701.34 the public health council, a part of the
Department of Health, is given the authority to establish sanitary
regulations of general application throughout the state. Pursuant to
this authority, the public health council established a policy requiring
the elimination of individual septic systems and connection to a
sanitary sewerage system when such a system becomes accessible. Ohio
Adm.Code 3701-29-02 provides:
"(L) No household sewage disposal system shall be installed,
maintained, or operated on property accessible to a sanitary sewerage
system.
"(M) Whenever a sanitary sewerage system becomes accessible to
the property, a household sewage disposal system shall be abandoned and
the house sewer directly connected to the sewerage system."
The public health council has further provided that this requirement
represents a minimum standard. Ohio Adm.Code 3701-29-20(D). Thus, a
local board of health may adopt more stringent standards when local
conditions necessitate such action but the basic requirements cannot be
made more lenient. Id.
Moreover, R.C. 3701.56 commands local boards of health to " * *
* enforce the * * * sanitary rules and regulations adopted by the
department of health." The board was therefore acting according to
statutory directive when it ordered appellees to connect to the sanitary
sewerage system in the present case.
Additionally, the General Assembly has directly delegated to the
Stark County Board of Health the authority to:
" * * * make such orders and regulations as are necessary for
its own government, for the public health, the prevention **1290 or
restriction of disease, and the prevention, abatement, or suppression of
nuisances." R.C. 3709.21.
Pursuant to this authority and in accordance with the directive of
R.C. 3701.56, the board adopted Sections 2.12 and 2.13 of the Stark
County Sanitary Code, the two regulations relevant to the present
controversy. These provisions are virtually identical to the Ohio
Administrative Code provisions and state:
"No household sewage disposal system shall be installed,
maintained, or operated on property accessible to a sanitary sewer.
"Whenever a sanitary sewerage system becomes accessible to the
property, a household sewage disposal system shall be abandoned and the
house sewer directly connected to the sewerage system."
Appellees contend that R.C. 3709.21 does not authorize a board of
health to force citizens to connect to a sanitary sewer. They argue that
Sections 2.12 and 2.13 go beyond the mere protection of public health,
prevention of disease, etc.; that no determination of a nuisance has
been made in this case; and that septic systems are a lawful method of
sewage disposal.
The legislative delegation of authority, under the present scheme,
does not bear out this contention. Instead, it reflects a broad-based
policy determination that individual household sewage disposal systems
are inherently *96 more dangerous to the public health than sanitary
sewerage systems and must be replaced when possible. It is not necessary
that the board make a case-by-case evaluation of the efficiency of each
septic system. The determination has already been made that septic
systems pose a potential hazard to the public health, and that they are
a potential nuisance to be prevented when possible. This determination
is borne out by the facts ofthe present case. The trial court found one
or two of the eighteen septic tanks/leach lines to be already
malfunctioning at the time of trial. The court also found that there is
less likelihood that a sanitary sewer will ripen into a health nuisance,
through raw sewage escaping to the surface, than will a septic system.
Moreover, the particular soil conditions of the area are conducive to
the rapid failure of septic systems.
The fact that septic systems are themselves lawful is immaterial.
That fact merely reflects the realization that a septic system is an
appropriate means of sewage disposal so long as no sanitary sewerage
system is available.
[3] Therefore, this court concludes that a local board of health
possesses the authority to require that whenever a sanitary sewerage
system becomes accessible to a property, the household sewage disposal
system shall be abandoned and the house sewer directly connected to the
sewerage system. This authority applies regardless of the manner by
which the sanitary sewerage system was constructed. The manner of
construction is irrelevant to and independent from the issue of health
and the policy concerns of those agencies charged with the protection of
the public health.
[4][5][6] The sole remaining question is whether the application of
such a requirement constitutes a deprivation of due process. This court
recognizes that appellees have a property interest in their septic
systems, which were installed in conformity with the law. Section 16,
Article I of the Ohio Constitution and the Fourteenth Amendment to the
United States Constitution protect against state taking of property
without due process of law. However, the protection provided by these
constitutional safeguards is not absolute. Almost every exercise of the
police power interferes with the enjoyment of liberty or the
acquisition, production or possession of property. Yet the
constitutional provisions against the taking of property must give way
to an exercise of the police power " * * * if it bears a real and
substantial relation to the public health, safety, morals or general
welfare of the public and if it is not unreasonable or arbitrary." Benjamin
v. Columbus (1957), 167 Ohio St. 103, 146 N.E.2d 854 [4 O.O.2d 113],
paragraph five of the syllabus; **1291Porter v. Oberlin (1965), 1
Ohio St.2d 143, 205 N.E.2d 363 [30 O.O.2d 491]; Downing v. Cook
(1982), 69 Ohio St.2d 149, 431 N.E.2d 995 [23 O.O.3d 186].
[7] Furthermore, this court has repeatedly recognized that whether an
exercise of police power is really and substantially related to the
public health, safety and morals and whether it is unreasonable or
arbitrary are questions initially committed to the judgment and
discretion of the legislative body. The courts will not invalidate an
exercise of the police power unless the *97 legislative body's
determination on the foregoing questions appears to be clearly
erroneous. Benjamin v. Columbus, supra, paragraph six of the
syllabus; Ohio Edison Co. v. Power Siting Comm. (1978), 56 Ohio
St.2d 212, 218, 383 N.E.2d 588 [10 O.O.3d 371].
Appellees have presented no arguments or evidence that the sewer
connection requirement is not related to the public health or that it
isunreasonable or arbitrary. As discussed above, the factual findings of
the trial court reinforce the conclusion that the public health is
better protected by use of sanitary sewerage systems than by employment
of septic tanks.
This court has previously held that R.C. 3709.21, formerly G.C.
1261-42, is a valid and constitutional enactment. Weber v. Bd. of
Health (1947), 148 Ohio St. 389, 74 N.E.2d 331 [35 O.O. 351].
However, in Weber the board of health's regulation was held to be
an unconstitutional delegation of the legislative power, violative of
equal protection, because it granted the health commissioner the
unfettered power to grant permission to engage in an activity otherwise
prohibited. No such arbitrariness is presented by the instant case. The
sewer connection requirement is uniformly applicable and does not
provide for discretionary exemptions. Additionally, the majority in Weber
ignored the holding in Ex parte Company, supra, that the
legislature may lawfully confer on boards of health the power to enact
sanitary ordinances having the force of law.
[8] Therefore, this court concludes that the requirement that house
sewers be directly connected to a sanitary sewerage system when such a
system becomes accessible bears a real and substantial relationship to
the public health, is not unreasonable or arbitrary and does not
constitute a deprivation of due process of law.
For the foregoing reasons, the judgment of the court of appeals is
reversed.
Judgment reversed.
FRANK D. CELEBREZZE, C.J., and SWEENEY, LOCHER and CLIFFORD F. BROWN,
JJ., concur.
HOLMES and JAMES P. CELEBREZZE, JJ., dissent.
HOLMES, Justice, dissenting.
I take no issue with the statements of the majority that the
protection and preservation of the public health is a prime governmental
concern and a function of the state, and that the state may exercise
such function itself or delegate such authority. This exercise of the
police power will be held to be valid if it bears a real and substantial
relation to the health, safety, morals, or general welfare of the
public, and if such exercise is not unreasonable or arbitrary.
Promulgation of regulations by the public health council regarding
sanitary sewers, whether private or public, and private septic tank
systems would certainly fall within the categorization of bearing a real
and substantial *98 relation to the public health and safety. However,
such regulations still must pass the test of reasonableness and
non-arbitrariness.
Pursuant to the regulations of the Stark County Board of Health,
which are identical to those promulgated by the public health council,
the landowners are required to abandon their privately maintained sewage
disposal systems when a sanitary sewerage system becomes accessible to
their property, regardless of whether their system has been found to be
defective in its operation. In my view, the regulations in this respect
transcend the bounds of reasonableness.
**1292 Had the installation of the sanitary sewer here been a public
one at the outset, procedures set forth in R.C. 6117.51 would have had
to be followed with all of the attendant hearings for the establishment
of such facility. Such procedure would also have provided the discretion
on the part of the individual property owner to connect into the system,
unless there was a determination that a health problem existed with a
given private septic system. In such event, the landowner could be
ordered to connect into the sanitary sewer system. No health problem was
found to exist with the septic systems of the appellees.
There is a protected property interest in the systems as installed by
these appellees upon their property, and to mandate that they abandon
such systems, which are in perfect working condition, and hook up to the
new sanitary system would, in my view, be taking a property right
without due process of law.
Accordingly, I would affirm the judgment of the court of appeals.
JAMES P. CELEBREZZE, J., concurs in the foregoing dissenting opinion.
461 N.E.2d 1286, 10 Ohio St.3d 92, 10 O.B.R. 42
