Page images
PDF
EPUB

Thatcher v. Toledo.

by plaintiff that the sewage flows through this stream over private property, and that the city has acquired no right from the abutting property owners to thus use the stream. It appears that when the sewer was first constructed it emptied into the Ottawa river at a point on the land owned by Alice M. Whitney and others, and that the circuit court, at the suit of the owners of the property, enjoined the use of the sewer for any purposes, except storm-water drainage, until the right to so empty the sewer should be acquired from the owners of the property at the outlet. Whitney v. Toledo, 29 O. C. C. 74 (8 N. S. 577). That right was subsequently acquired by appropriation proceedings, but no proceedings were taken against the riparian owners farther down the stream, and it does not appear that any contentions are being made by such owners in the courts that the sewer can not have its outlet in this stream.

66

As bearing very closely upon the matter now under consideration, we quote from Johnson v. Avondale, supra, page 125, where the court, speaking of a sewer outlet, say: 'Whether it is a proper one, is, in my judgment, a matter as to which the law confers a discretion on the village authorities, and unless it has been grossly abused, the courts can not properly interfere. And I see no good reason as yet to think that such discretion has been abused. The evidence on this point is, to say the least, very conflicting. Nor do I think the fact that the right of the village to have the outlet at this point, is denied by the owner of the ground, is a good reason why the court should interfere as prayed for at the instance of the plaintiffs. They are not called upon to defend the rights of the owner. If the village infringes on them, he has his remedy; but if the fact that some person might have a claim against the village for flowing sewage upon, or near his lands, is to stop this work, it is probable that the sewer can never be built anywhere. The same claim might be made by the plaintiffs if it was continued and actually emptied into Mill Creek, or some other stream, for it might then be an invasion of the rights of some one as much as it is now."

A case nearly identical in some of its aspects with the case at bar is that of Cleneay v. Norwood, 137 Fed. 962, a case which arose under the statutes of Ohio providing for the con

39 O. C. C. Vol. 36.

Lucas County Appeals.

struction of sewers. It is urged by plaintiff that the position taken by the state board of health is such that the city is without authority to enforce the collection of an assessment because of the claimed unlawful pollution of this stream. In the seventh paragraph of the syllabus of the case just cited the court say: "That a village, its officers and agents, had violated certain statutes prohibiting the pollution of streams by sewage, and were liable for the penalties prescribed therefor, constituted no ground for setting aside an assessment for the construction of the sewers."

It is insisted, however, that the assessment is invalid because no notice was served upon the plaintiff of the passage of the preliminary resolution and of the ordinance to improve, and in this connection it is contended that such notice is required by the statutes, and if not so required, that the statutes authorizing the assessment are unconstitutional. The resolution and ordinance were duly published and no controversy exists on that point, but only that personal notice was not served on the plaintiff. A solution of the controversy necessitates an examination of the sections of the General Code providing for the making of improvements of this character and assessing the cost therefor. The sewer is a main or trunk sewer and it is provided in Sec. 3878 G. C., in substance, that the resolution providing for the construction of such sewer shall be published once a week for not less than two nor more than four consecutive weeks in a newspaper of general circulation. Section 3834 G. C. especially excepts main or district sewers from the class as to which notice of the passage of the resolution shall be personally given, as provided in Sec. 3818 G. C. We hold, therefore, that under the statutes as they read no personal notice was required to be served upon the plaintiff, notwithstanding he was a resident of the city of Toledo. See Kohler Brick Co. v. Toledo, 29 O. C. C. 599 (10 N. S. 137).

The inquiry then arises as to the validity of statutes authorizing an assessment upon the property of a resident without the service of notice on him personally. Plaintiff in his brief cites and relies on Anderson v. Messenger. 158 Fed. 250 [85 C. C. A. 468], and Chicago & Erie Ry. v. Keith, 67 Ohio St. 279 [65 N. E. 1020; 60 L. R. A. 525]. A careful examination

Thatcher v. Toledo.

[ocr errors]

of these authorities does not lead us to the belief that they are controlling upon the question now under consideration. The case last cited arose under a statute requiring railroad companies to construct ditches of sufficient capacity to conduct to a proper outlet water which accumulated along the sides of the roadbed. The statute failed to provide for notice, either actual or constructive, to the railroad company so sought to be charged, and for that reason, among others, was held unconstitutional. The court, speaking through Burket, C. J., say on page 291: "The railroad company is notified by the owner or tenant to open the ditch, and is also notified by the probate judge to open it, but no notice is given to it of any hearing, and no provision whatever is made for a hearing at any stage of the proceeding."

It is perfectly manifest that the constitution is invaded by a statute of that character. The statutes under which main sewers are constructed have provisions in them for the giving of notice by publication, as hereinbefore indicated, and they further have provisions whereby the owner of property assessed is notified by publication of the amount of the assessment upon his property, and has an opportunity to be heard as to the validity and justice thereof. See Secs. 3847, 3895 and 3848 G. C.

A proceeding for the establishment of a main sewer is in effect a proceeding in rem, and it is not necessary to its validity that a person whose property is sought to be charged with a portion of the cost of the improvement and on whom no personal liability is fixed, should receive actual notice personally of the proceedings. So far as the question under consideration is concerned, the case is similar to Cupp v. Seneca Co. (Comrs.) 19 Ohio St. 173, which involved the construction of a county ditch. In that case it is said, on page 182, that the statute made no provision for the service of personal notice upon the landowners. The court then proceeds:

"Nothing is better established as law, than that such rights may be affected, and lost to the owner, by a proceeding in rem, and upon merely constructive notice. The law of all such proceedings rests in the necessity of the case, and in no instance, perhaps, is that necessity more plainly apparent than in the construction of public roads, and other improvements of like

Lucas County Appeals.

nature. Without the aid of some such proceeding, the construction of roads and ditches would be next to impracticable."

The case has become a leading one in this state and has been many times cited with approval. One of the latest citations of that case is Portage Co. (Comrs.) v. Gates, 83 Ohio St. 19 [93 N. E. 255], in which it is held that personal notice to the landowner of the proceeding is not indispensable to its legality.

The law on this subject is well stated in 1 Page and Jones on Taxation by Assessment, section 121, as follows: "The legislature has a wide discretion in determining the nature and kind of notice to be given, though it has no power to dispense with all notice. If such notice is given as will fairly and reasonably apprise the property owner of the pendency of the assessment proceedings so as to give him an opportunity for a hearing upon the merits he is not entitled as a matter of constitutional right to personal service. Notice by publication may therefore be provided for by the legislature without violating the constitutional provision forbidding the taking of property without due process of law."

It is said further by the authors, in section 127, that “Outside of the question of personal liability, personal notice is unnecessary and a reasonable notice given by publication is sufficient."

Finding that the statutes violate no constitutional provision, and that they have been followed in the proceedings leading up to the construction of the sewer in question and the assessment of plaintiff's land therefor, the petition will be dismissed and the injunction dissolved.

Petition dismissed and injunction dissolved.
Chittenden and Donnelly, JJ., concur.

Benton v. Benton.

DIVORCE AND ALIMONY.

[Cuyahoga (8th) Circuit Court, May 24, 1909.]
Marvin and Henry, JJ.

Judge Winch not sitting.

GILBERT II. BENTON V. SARAH BENTON.

1. Aggressions Prior to Insanity Cause for Divorce of Insane Husband. A decree of divorce may be entered against an insane defendant for aggressions prior to the insanity.

2. Concealing Congenital Insanity Invalidates Marriage.

A divorce granted for fraud in the marriage contract in concealing
defendant's congenital insanity from the plaintiff, is not void be-
cause the act was committed while insane, for if the defendant
was insane when he committed the fraud, the marriage is void.
[Syllabus by the court.]

ERROR.

Fred F. Truhlar, for plaintiff in error.

Kerruish & Kerruish and

in error.

MARVIN, J.

Freiberger, for defendant

The parties here are as they were in the court below. The plaintiff brought suit for a divorce from the defendant in the court of common pleas, alleging as ground therefor that at the time that the marriage between the plaintiff and the defendant was contracted, the said defendant was the wife of another man. The defendant answered, denying that she was the wife of another man, from whom she obtained a divorce in the common pleas court of this county at the April term, 1897. To that the plaintiff replied, admitting that a decree was entered (in said last named court at the time stated in the answer) by the terms of which, if valid, the defendant was divorced from her former husband, John C. Butt, but alleges that the court, at the time of entering such decree, was wholly without jurisdiction to make the same, wherefore the decree was absolutely void and left the defendant still the wife of said Butt. On the trial, the record in the divorce proceedings against Butt was introduced

« PreviousContinue »