Wetterer v. Hamilton County Board

167 Ohio St. (N.S.) 127
CourtOhio Supreme Court
DecidedDecember 18, 1957
DocketNo. 35084
StatusPublished

This text of 167 Ohio St. (N.S.) 127 (Wetterer v. Hamilton County Board) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wetterer v. Hamilton County Board, 167 Ohio St. (N.S.) 127 (Ohio 1957).

Opinion

Herbert, J.

The sole error assigned in this court by the plaintiffs is that the Court of Appeals erred in holding “that the Hamilton County District Board of Health has the right, power and duty to enact reasonable rules and regulations to provide for licensing and registration of plumbers.” (Paragraph two of the finding of the Court of Common Pleas.) The constitutionality of the applicable statutes is, therefore, not in issue, but only the power of a general district board of health as fixed thereunder. The briefs would appear to complicate this issue much more than the pertinent facts and applicable law would indicate. There is no dispute as to the principles of law enunciated in paragraphs six and seven of the syllabus in the case of Matz, Admr., v. J. L. Curtis Cartage Co., 132 Ohio St., 271, 7 N. E. (2d), 220, and nothing would be gained by re-quoting them here. Their applicability to the instant case, however, remains to be determined.

In Weber v. Board of Health, 148 Ohio St., 389, 74 N. E. (2d), 331, this court reversed the judgment of the Court of Appeals for Butler County in a case involving a resolution of the Board of Health of the Butler County Health District seeking to regulate the transportation and delivery of garbage for the purpose of feeding it to swine or other animals within the territory under the jurisdiction of the board.

Paragraphs one and two of the syllabus in the Weber case are as follows:

“1. Section 1261-42, General Code, which provides that ‘the board of health of a general health district may make such orders and regulations as it deems necessary for its own government, for the public health, the prevention or restriction of disease, and the prevention, abatement or suppression of nuisances * * V but does not provide specific standards for guidance, is a valid and constitutional enactment.

“2. Where a law relates to a police regulation for the protection of public health, and it is impossible or impractical to [131]*131provide specific standards, and to do so would defeat the legislative object sought to be accomplished, such law is valid and constitutional without providing such standards. (Paragraph seven of the syllabus in Matz, Admr., v. J. L. Curtis Cartage Co., 132 Ohio St., 271, approved and followed.)”

Although three members of the court dissented from the judgment, it would appear from the dissenting opinion (although not so noted) that they concurred in the above-quoted paragraphs of the syllabus in that case. Their dissent seems to be directed, therefore, at paragraphs three and four of the syllabus which are as follows:

”3. Under the provisions of Section 1261-42, General Code, the board of health of a general health district has a Avide latitude in making and enforcing rules and regulations for the public health, the prevention or restriction of disease, and the prevention, abatement, or suppression of nuisance, but when such board passes a resolution which prohibits a business not unlawful in itself and which is susceptible to regulations which will prevent it from becoming either a health menace or a nuisance, such board transcends its administrative rule-making power and exercises legislative functions in violation of Section 1 of Article II of the Constitution of Ohio.

“4. A resolution of the Board of Health of the Butler County Health District, which makes it unlawful to transport, deliver or deposit collected garbage for the purpose of feeding the same in whole or in part to swine or other animals into or within the territory under the jurisdiction of such board, but authorizes the health commissioner, without any standards for his guidance, to approve a system of collection and disposal of garbage and provides that after such approval the continuance of such system of collection and disposal shall not constitute a violation of the provisions of the prohibitory regulations, is an attempted delegation of legislative power and is violative of the equal-protection guaranties of the state and federal Constitutions. ’ ’

We do not find where the question as to the poAver to license plumbers raised in the instant case has been considered or passed upon by any court of record in the state except as cited herein or in cited opinions of the Attorney General. That office [132]*132lias during recent years issued several opinions on the question of the power of boards of health with respect to plumbing regulations, which seem to be somewhat in conflict. The plaintiffs here cite the informal opinion of the Attorney General No. 437, dated October 19, 1948, which concludes that “the power to license and register plumbers rests in municipal corporations. There is no provision in law for a general district board of health to establish a licensing board for the examination of plumbers nor to provide for the registration of said plumbers.”

The prosecuting attorney representing the defendant relies upon Opinions of Attorney General (1952), 586, No. 1729, and ibid. (1953), 264, No. 2760. The 1952 opinion, it may be noted, was rendered in response to a request from defendant’s counsel here and involved the provisions of the 1951 regulations of the defendant here pertaining to plumbing. In the 1952 opinion, the Attorney General referred to and reviewed the above-mentioned informal opinion of 1948. With reference thereto, the writer of the 1952 opinion said:

“It is quite plain that the writer of this opinion gave no consideration to the possibility that such boards may possess implied powers incident to the powers expressly conferred on them, but rather appeared to prefer the strictest sort of interpretation of the powers of such boards.”

He then quoted from Sections 3709.36, 3709.21, 3709.20 and 3707.01 of the Revised Code (Sections 1261-30,1261-42, 4413 and 4420, General Code), and then stated:

“From an examination of these sections it would appear to be the intent of the General Assembly that the board of health of a general health district, in addition to the powers conferred by the provisions of Section 1261-42, General Code, supra, should have all of the powers granted to city boards of health under the provisions of Section 4413, General Code. The problem at this point is, therefore, to ascertain whether these statutes, by implication, grant to the boards of such general health district the power to adopt and enforce a regulation such as that described in your inquiry.”

After reviewing certain cases, two of which are unreported and none of which are squarely in point on the issue here (indicating the paucity of authoritative decisions in this specific area), the writer stated:

[133]*133“From all of the foregoing, it will be apparent that while the law is not fully settled in Ohio on the point, there is some considerable authority for the proposition that boards of health may, as an incident to the regulation of an occupation which directly affects the public health, prescribe a licensing system therefor.”

One of the three cases reviewed in that opinion, however, is the case of Heilman’s Restaurant, Jnc., v. Lefever (1950), an unreported decision, No. 1209, by the Court of Appeals for Lorain County. There the court held invalid a regulation of the Board of Health of the City of Lorain prescribing a licensing system for restaurants, on the ground that a system of licensing restaurants was already established under the provisions of what is now Section 3731.03, Revised Code.

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Related

Brunner v. Rhodes
119 N.E.2d 105 (Ohio Court of Appeals, 1953)
Weber v. Board of Health
74 N.E.2d 331 (Ohio Supreme Court, 1947)
State Ex Rel. Foster v. Evatt
56 N.E.2d 265 (Ohio Supreme Court, 1944)
Matz v. J. L. Curtis Cartage Co.
7 N.E.2d 220 (Ohio Supreme Court, 1937)

Cite This Page — Counsel Stack

Bluebook (online)
167 Ohio St. (N.S.) 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wetterer-v-hamilton-county-board-ohio-1957.