# DeMoise v. Dowell

> Ohio Supreme Court · April 18, 1984 · 10 Ohio St. 3d 92

URL: https://www.frixlaw.com/law-library/cases/6758341

## Case

- **Full name:** DeMoise v. Dowell
- **Court:** Ohio Supreme Court
- **Decided:** April 18, 1984
- **Citations:** 10 Ohio St. 3d 92; 10 Ohio B. 421; 461 N.E.2d 1286; 1984 Ohio LEXIS 1071
- **Precedential status:** Published
- **Opinion:** Dissent by Holmes
- **Judges:** Brown, Celebrezze, Holmes, Hot, Locher, Mes, Sweeney
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6758341

## How later opinions describe it (automated extraction)

- noting it is “well established that the state can directly exercise its police power concerning public health or it may delegate that power to other governmental agencies”

## Opinion text

Holmes, J.,
dissenting. I take no issue with the statements of the majority that the protection and preservation of the public health is a prime governmental concern and a function of the state, and that the state may exercise such function itself or delegate such authority. This exercise of the police power will be held to be valid if it bears a real and substantial relation to the health, safety, morals, or general welfare of the public, and if such exercise is not unreasonable or arbitrary.
Promulgation of regulations by the public health council regarding sanitary sewers, whether private or public, and private septic tank systems would certainly fall within the categorization of bearing a real and substan *98 tial relation to the public health and safety. However, such regulations still must pass the test of reasonableness and non-arbitrariness.
Pursuant to the regulations of the Stark County Board of Health, which are identical to those promulgated by the public health council, the landowners are required to abandon their privately maintained sewage disposal systems when a sanitary sewerage system becomes accessible to their property, regardless of whether their system has been found to be defective in its operation. In my view, the regulations in this respect transcend the bounds of reasonableness.
Had the installation of the sanitary sewer here been a public one at the outset, procedures set forth in R.C. 6117.51 would have had to be followed with all of the attendant hearings for the establishment of such facility. Such procedure would also have provided the discretion on the part of the individual property owner to connect into the system, unless there was a determination that a health problem existed with a given private septic system. In such event, the landowner could be ordered to connect into the sanitary sewer system. No health problem was found to exist with the septic systems of the appellees.
There is a protected property interest in the systems as installed by these appellees upon their property, and to mandate that they abandon such systems, which are in perfect working condition, and hook up to the new sanitary system would, in my view, be taking a property right without due process of law.
Accordingly, I would affirm the judgment of the court of appeals.
J. P. Celebrezze, J., concurs in the foregoing dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6758341. Public record. Not legal advice.