
    Hermann et al. v. The State ex rel.
    
      Assessment by municipality — Abutting property assessed for costs of sewer — Those who successfully resist assessments cannot use sewer unless paying towardits construction.
    
    Where by municipal authority, a system oí sewers is constructed with a view to assessing a portion of the costs thereof equally upon the abutting property, and a portion of the assessments are paid and a portion successfully resisted, a rule requiring as a condition to the use of the sewer that those who so resisted shall pay a. sum equal to that paid by others toward its construction is not unreasonable.
    [Decided April 28, 1896.]
    Error to the Court of Common Pleas of Hamilton county.
    The plaintiffs in error constitute the board of administration of the city of Cincinnati.
    In the court of common pleas a peremptory writ of mandamus was awarded on the petition of Cooper against the board, commanding them to permit him to tap the sewer in Ashland street, upon which his residence fronts, on payment by him of the usual license fee of five dollars, but without payment of any portion of the cost of constructing the sewer. The material facts are that the city constructed a system of sewers on Walnut Hills, including the Ashland street sewer, at a cost of about $142,000. It made assessments on abutting property to the extent of two dollars per front foot, which amounted to about half the cost of construction. Some of the assessments were paid, but a portion of the property owners, including him who was then the owner of Cooper’s property, resisted the assessment upon the ground of fraud by the contractor, and their defense finally prevailed. In consequence thereof the city was adjudged to pay the balance of the contract price. When Cooper applied to the board for a permit to tap the sewer, it refused to grant it except upon compliance by him with the following rule, which it had previously adopted :
    “Wherever public sewers have been constructed, and the cost thereof has been wholly or partly paid out of the funds of the city, and the owner of any abutting property makes application for permit to tap such sewer, no permit shall be issued to any such abutting owner unless he shall have paid the assessment or assessments levied againsthis said property for the cost of said sewer ; or if for any reason said assessments have not been paid, or have been released or no assessment has been levied, no permit shall be granted unless such person shall first pay into the city treasury, for the purpose of repaying the city the amount paid out or to be paid out by said city on account of said sewers a sum equal to an amount per front foot to be determined by taking the total cost of constructing the main and lateral sewers and drains into which he desires to tap, and divide the gross amount by the number of front feet abutting upon said sewers: Provided, however, that the amount so to be paid shall in no case exceed the sum of two dollars per front foot of the property abutting.
    
      
      Frederick Uertenstein, Corporation Counsel, and Wm. II. Whittaker for plaintiffs in error.
    
      O. J. McDiarmid for defendant in error.
   By the Court:

The rule adopted by the board of administration is not inconsistent with the judgment that the assessments for the construction of the sewer in question were void. The assessments were asserted against the owners of all abuttingproperty, whether vacant or improved. They were asserted without regard to the use of the sewer. The rule in question prescribes conditions upon which connections may be made for the actual use of the sewer.

The board is authorized by section 2402, Revised Statutes, to prescribe rules and regulations for the tapping of sewers. Certainly, it may not prescribe an unreasonable rule. In determining whether this rule is reasonable it is important that the system of sewers of which this is a part was constructed by the city with a view to assessing the cost thereof, within the limit of two dollars per foot, upon the abutting property, which, it is admitted, the statute authorized. The rule in question was adopted and properly conditioned to require that those who had not paid assessments should, when desiring to use the sewer, accept an equal burden with those who had. We cannot say that the rule is unreasonable. Its application to this case is obvious.

Judgment reversed.  