
    Common Pleas Court of Crawford County.
    The City of Bucyrus v. R. V. Sears.
    
      C. F. Schaber, for plaintiff.
    
      C. J. Scroggs and R. V. Sears, for defendant.
   Wright (J. Walter).

This is an action to declare a lien on the real estate of the defendant for water furnished the tenant of the defendant and to sell the real estate to satisfy such lien.

A demurrer was filed to the petition which raises the question as to whether the averments in the petition are sufficient to' entitle the plaintiff to the relief prayed for.

The petition states, in substance, that the plaintiff is a municipal corporation owing the water works to supply the inhabitants with water in accordance with rules and regulations adopted by the director of public service. That the rules in force provide among other things as follows:

Rule No. 1. The following rules and regulations are-to be considered a part of contract between the water works department of the city of Bucyrus, Ohio, and all users of city water.

Rule No. 2. Any person desiring supply of water must make application at the office of the city water department either in person or by licensed plumber, who shall be considered their legal agent.

Rule No. 5. Owners of property shall be held responsible for water used in their premises; but payments will be accepted from tenants. In case the tenants do not pay in accordance with the rules and regulations of the department, water will not be supplied to property. All unpaid accounts for water shall be a lien against the property furnished and shall be certified to the County Auditor in accordance with the laws of the state of Ohio.

Rule No. 1. Water is furnished subject to rules and regulations of the water department and they are a part of every application, contract, agreement or license entered into between the property owner or consumer and the water department.

Further allegations of the petition are:

That the defendant was the owner of a dwelling house occupied by a tenant and that water was furnished by the city in pursuance to rules on the application of the said tenant to the amount of $5.30, which was not paid by the tenant; that said water was furnished with knowledge on the part of the defendant.

The question involved in the case is whether a lien can be asserted against the real estate of a landlord for water furnished to a tenant who has contracted for such water and failed to pay for same, the landlord not being a party to such contract.

: The plaintiff claims that the authority for asserting the lien is under Sections 3956, 3957 and 3958 of the General Code and the rules and regulations made in pursuance of the statute.

• Section 3956 provides as follows

“The director of public service shall manage, conduct and control the water works, furnish supplies of water, collect water rents, and appoint necessary officers and agents.”

Section 3957 provides as follows:

“Such director may make such by-laws and regulations as he deems necessary for the safe, economical and efficient management and protection of the water works. Such by-laws and regulations shall have the same validity as ordinances when not repugnant thereto or to the constitution or laws,of the state.”

Section 3958 provides as follows:

“For the purpose of paying the expenses of conducting and managing the water works, such director may assess and collect from time to time a water rent of sufficient amount in such manner as he deems most equitable upon all tenements and premises supplied with water. When more than one tenant or water taker is supplied with one hydrant or off the same pipe, and when the assessments therefor are not paid when due, the director shall look directly to the owner of the property for so much of the water rent thereof as remains unpaid, which shall be collected in the same manner as. other city taxes.”

It is claimed on the part of the defendant that the statutes, particularly Section 3958, does not authorize a lien against the landlord, only in case where there is more than one tenant supplied from the same line or hydrant; it is also claimed that such a regulation as now asserted by the plaintiff is unreasonable.

A great many decisions of other states have been, cited holding both for and against various angles of the question here presented, and through them all there runs a uniformity upon one point, namely, that rules and- regulations of the parties supplying the water must be “reasonable.”

The city claims that its authority for claiming the lien against the landlord is clearly granted by the first half of Section 3958. The defendant contends that the latter half of this section limits the lien against the landlord to one class of users, namely, where more than one tenant or water taker is supplied from the same line; and the statute limiting the lien to the one class, it excludes all others under the familiar rule of “expressio unis est exclusio alterius.”

The statute places the duty upon the director of public service to manage and control the municipal water works, furnish water, collect rents, and appoint officers and agents. He is given authority to make rules and regulations as he deems necessary for the safe, economical and efficient management and protection of the water works. Such by-laws and regulations shall have the same validity as ordinances when not repugnant thereto, or to the constitution or laws of the state.

Let me digress here to remark that the Legislature was careful to see that such rules must not be repugnant to the constitution, but failed to exercise the same caution to keep their own act within the constitution.

For the purpose of paying the expense of conducting and managing the water works such director may assess and collect from time to time' a water rent of sufficient amount, in such manner as he deems most equitable upon all tenements and premises supplied with water. This part of the statute authorizes the director to assess and collect upon all tenements and premises supplied with water. Does this imply that the city can collect from the tenement or premises without the owners first having applied for or contracted for such water? Or would the use of such language naturally imply the existence of an application, or contract, by the owner before looking to the property to make such collection?

I would conclude that if a lien was intended by the use of this language, that the consent or application of the owner would be a prerequisite to such assessment.

But the latter half of the statute clarifies the first half; it there for the first time speaks of the owner of the property, and provides where more than one tenant uses from the same line, the director shall look directly to the owner of the property for unpaid rental and collect it in the same manner as other city taxes. If the Legislature had intended the owner to be liable in all cases, could it not have so provided.

Specifically designating a class, or one way, in which a lien can be claimed, would exclude all others not so designated. The reason for the provision in the latter half of the statute, making the landlord liable when more than one tenant uses from the same line, is apparent because the landlord having created a condition in his premises which would deny, or prevent, the director of water from ascertaining the amount that might be used by one tenant, ought to certainly make the landlord liable by reason of having created that condition. But if the Legislature had intended that the lien should apply in any event, it could have so provided in plain language, and the fact that it designated the one class upon which it might claim liens, would exclude all other classes under the rule of interpretation above referred to.

The water which is supplied to a tenant in a building forms no part of the real estate of that building. It is true the landlord provides the p'pes and the means and method of conveying the water, but the water itself which is used by the tenant is an item of personalty which is no part of the real estate. Why a landlord should be held responsible for the water so used in his premises by a tenant any more than he might be held responsible for the groceries, or coal, or other provisions, which might be conveyed to his tenant, I am unable to see. The Legislature might with as much propriety have said that the grocery man, or other person who sold to the tenant, could claim a lien upon the real estate for the value of such articles in the absence of payment by the tenant. There is no privity of contract between the landlord and one who sells the water, and until there .is such privity of contract the landlord cannot be held responsible.

The case was argued solely upon the authority granted by the Legislature to the director of public service to make rules and regulations providing for liens, and the authority of municipalities to create liens upon real estate.

The question as to the constitutionality of the rules and regulations and‘the statutes under which such rules creating liens were made, was not discussed or referred to by counsel. It has occurred to me that such rules' and regulations and the statutes under which they were made, would be in direct conflict with the constitution, since it would authorize the director of public service of the city to take one man’s property to pay another man’s debt. The sacredness of property rights and the obligations of contracts are secured under our constitution. See Article I, Section I, of the Bill of R'ghts, and Article II, Section XXVIII, with reference to contracts.

The principle involved in this case has been passed upon by the Supreme Court of this state when the constitutionality of the former mechanics lien law was before them. In the case of Palmer v. Tingle, 55 O. S., p. 423. the court held the sub-contractors lien law unconstitutional, because it took the owner’s property to pay a subcontractor with whom he had no contractual relations. The same principle is involved in this case. The defendant’s property is sought to be taken to pay another’s debt, where there is no privity of contract between the one who seeks to take the property and the one whose property is taken.

If this can be done, then the right which is guaranteed under our Bill of Rights, to acquire, possess and protect property, is taken away. The city through its director of service can make rules which will give it ample protection in collection of water rentals, without casting upon the property owner the burden of bearing the debts of irresponsible persons. The method used is unauthorized by the statute and I believe in conflict with the constitution.

The demurrer will be sustained with exceptions::..  