Citations
- 149 Ohio St. 427
Full opinion text
Matthias, J.
A single question is presented to the court by this case: Does the conveyance to the city of the easement with the acceptance thereof by the city, in consideration of the right and privilege of the Board of Trustees of The Ohio State University and The Ohio State University “to use the city sewers on the campus * * * without cost or expense” exempt the university from the payment of sewer rental charges provided for by the ordinance of the city and authorized by Section 3891-1, General Code?
The so-called “sewer rental charge” is a service charge required by ordinance to be paid by the users of the sewerage system, computed on the amount of water furnished the users by the city, to provide funds for the operation, maintenance, repair, enlargement and replacement of the sewerage system, storm standby tanks, pumping stations and sewage-treatment works of the city of Columbus. No issue is made as to the fairness of the standard by which the rental charge is determined. Such method was under consideration in the case of Gericke v. City of Philadelphia, 353 Pa., 60, 44 A. (2d), 233, and there approved and adopted.
It is the contention of the relator, first, that the grant of easement does not exempt the grantor from the payment of future rental charges for the operation of the city’s sewerage system, including sewage treatment, and that the parties thereto did not so intend or contemplate for the reason that conditions did not then exist requiring such charges and no provision therefor had then been enacted; and, second, that if the grant be so construed as to exempt the university from sewer rental charges, then, and in that event, the act of the director of public service in signing the instrument, and even the acceptance of the grant by the city council, is ultra vires, contrary to public policy and, therefore, not binding on the city of Columbus.
The respondents contend that the city of Columbus, at the time the grant of easement was executed, had the power to levy sewer rental charges, even though not then contemplated, and, further, that the language of the grant of easement is clear and unambiguous and exempts the • university from the payment of rental charges.
This case does not present a situation where the city is endeavoring to tax property belonging to the state of Ohio, since it is well established that charges for sewer services, or so-called rental charges, are neither taxes nor assessments. Opinion of Justices, 93 N. H., 478, 39 A. (2d), 765; Veail v. L. & J. County Met. Sewer District, 303 Ky., 248, 197 S. W. (2d), 413; Town of Port Orchard v. Kitsap County, 19 Wash. (2d), 59, 141 P. (2d), 150.
The language of the grant of easement involved herein, if construed as contended by counsel for the respondents, would be so broad and comprehensive as to vest in the university the right to use the city sewer and the benefit of the city’s sewerage system without restriction or limitation, and without liability for any future charge or expense of maintenance, renewal or additional facilities required by any change of conditions.
It is to be observed that no boundaries of the campus and no limitation of the demands for sewer service are indicated. The vast increase in the extent of the campus and in the number of buildings erected thereon between 1919 and 1947 is conceded, and a continued increase thereof must be anticipated.
It is well known that for many years most cities of Ohio discharged raw, untreated sewage into rivers, which resulted in many suits for damages caused by such pollution. Such condition gave rise to the requirement for sewage treatment- as an essential health measure.
If the university is completely exempted from any charge therefor and is privileged, without any limitation or restriction, to empty into the