Lammers, 062918 OHAGO, AGO 2018-14
| Case Date | June 29, 2018 |
| Court | Ohio |
1. Whether a fund must be created for each individual ditch or improvement constructed pursuant to R.C. Chapters 6131 or 6133, or whether maintenance assessment moneys for multiple ditches or improvements may be administered from the same fund.
2. Whether, after August 23, 1957, a maintenance fund has been established pursuant to R.C. 6137.02 when a resolution authorizing the construction of a ditch is approved by a board of county commissioners or joint board of county commissioners, even if the resolution does not include language expressly creating a maintenance fund.[2]Use of a Single Ditch Maintenance Fund for the Deposit of Assessment Revenues Associated with Multiple Ditches In your first question, you ask whether multiple ditches constructed pursuant to R.C. Chapters 6131 or 6133 may be combined under a single maintenance fund for the purpose of levying maintenance assessments on the benefited owners of a particular ditch, or whether each ditch must have its own separate fund into which maintenance assessment moneys are deposited and from which those moneys are expended. R.C. 6137.02 provides, in relevant part:
The board of county commissioners of each county shall establish and maintain a fund within each county for the repair, upkeep, and permanent maintenance of each improvement constructed under [R.C. Chapter 6131]. After August 23, 1957, a maintenance fund also shall be established and maintained by each joint board of county commissioners for the repair, upkeep, and permanent maintenance of each improvement constructed under [R.C. Chapter 6133]. (Emphasis added.)It is unclear from the plain language of R.C. 6137.02 whether a separate maintenance fund that corresponds to each ditch in the county is required, or whether R.C. 6137.02 may be satisfied with a single maintenance fund that corresponds to all, or multiple, ditches within the county. R.C. 6137.04 offers insight into whether a ditch or improvement must have its own separate maintenance fund under R.C. 6137.02, or whether multiple ditches may be administered from the same maintenance fund. With respect to single county ditches constructed pursuant to R.C. Chapter 6131, R.C. 6137.04 states, in pertinent part:
The board of county commissioners, upon recommendation of the county engineer, is hereby authorized to combine improvements within the same watershed into a drainage maintenance district, in which the maintenance assessment shall be the same percentage of original cost for each improvement to be maintained. In grouping improvements into drainage maintenance districts, the county engineer and the board of commissioners shall consider uniformity of topography and soil types so that improvements within the same district represent substantially the same maintenance problem and can be kept in proper repair at cost sufficiently uniform as to constitute no substantial inequity for any owners to be included in a district maintenance program. The county auditor shall maintain one drainage maintenance fund for each such district. A maintenance district may include all or any part of a county.
The board of county commissioners, upon recommendation of the county engineer, may combine improvements in accordance with the type of improvement into one drainage maintenance fund so that ditches or drains that are enclosed in tile, or other improvements having similar maintenance costs, may be administered for maintenance under the same maintenance fund. (Emphasis added.)Thus, under appropriate circumstances, a board of county commissioners may group single county ditches within the same watershed into a maintenance district that shall be administered from one maintenance fund for the entire district. In addition, a board of county commissioners may combine improvements constructed under R.C. Chapter 6131 that share similar maintenance costs into a single maintenance fund. Under R.C. 6137.04, for the purpose of maintaining ditches that have similar maintenance costs, the county engineer may recommend to the board of county commissioners that those improvements be administered from a single ditch maintenance fund. The board of county commissioners may then place the recommended ditches into a single fund for the purpose of repair, upkeep, and permanent maintenance of those ditches. R.C. 6137.04 should be read in pari materia with R.C. 6137.02 with respect to single county ditches. State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 585, 651 N.E.2d 995 (1995) (“[a]ll statutes relating to the same general subject matter must be read in pari materia, and in construing these statutes in pari materia, this court must give them a reasonable construction so as to give proper force and effect to each and all of the statutes”); see also D.A.B.E., Inc. v. Toledo-Lucas Cnty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, at ¶ 20 (statutes relating to the same subject matter must be read together in an attempt to “arrive at a reasonable construction giving the proper force and effect, if possible, to each statute”). It is evident that R.C. 6137.02 does not require that each ditch constructed pursuant to R.C. Chapter 6131 have its own separate maintenance fund in light of the clear authorization under R.C. 6137.04 for a board of county commissioners to place single county ditches into a maintenance district to be administered from a single maintenance fund or otherwise combine multiple ditches into a single maintenance fund. If R.C. 6137.02 required each ditch to have its own separate maintenance fund, then the authority given to a board of county commissioners under R.C. 6137.04 to place multiple ditches into a maintenance district administered under a single fund or to combine improvements into a single maintenance fund would be without effect. To give effect to the language of both R.C. 6137.02 and R.C. 6137.04, the statutes should be read in pari materia. Therefore, comparing the language of the two statutes, the logical and reasonable reading is that R.C. 6137.02 requires each single county ditch to be associated with a maintenance fund but does not require each single county ditch to have its own separate fund. With respect to a joint county ditch constructed pursuant to R.C. Chapter 6133, on the other hand, R.C. 6137.04 requires each joint county ditch to have its own separate maintenance fund, stating in pertinent part: “[i]n the case of each joint county ditch improvement, the county auditor of the county having the majority of the improvement shall maintain a separate maintenance fund for the improvement.” (Emphasis added.) Thus, unlike single county ditches constructed pursuant to R.C. Chapter 6131, joint county ditches constructed pursuant to R.C. Chapter 6133 shall be associated with their own separate maintenance funds. In other words, maintenance for joint county ditches may not be administered from a fund composed of multiple single or...
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