author: PER CURIAM.

text:
    MUNICIPAL CORPORATIONS — STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    July 12, 1907.]
    Wilson, Donahue and Wildman, JJ.
    (Sitting in place of the judges of the eighth circuit.)
    Edward S. Isom v. Low Fare Ry.
    1- Constitutionality of Act Requiring Consents for Construction of Street Railways.
    The necessity of obtaining the consent of a majority of abutting property owners as a prerequisite to the construction and operation of a street railway in a public street, as is provided for by Rev. Stat. 2505 (Lan. 3770; B. 1536-188) and Lan. Rev. Stat. 3765 (B. 1536-189), is not a special privilege or property right, conferred on such property owners, inconsistent with the rule that abutting owners have no rights in a street superior to those of the general public; and such section is not uncon-v stitutional as class legislation.
    2. Necessity of Consent of Abutting Owner to Street Railway.
    A franchise granting the right to operate a street railway upon a certain street having expired, a new company seeking to construct and operate upon the same street must first obtain the consent of a majority of the abutting property owners thereon. The former use of the street for street railway purposes does not relieve the second company from the necessity of securing the consents.
    [For other cases in point, see 7 Cyc. Dig, “Street Railways,” §§ 194-224.— Ed.]
    3. Who may Construct Line under a Franchise Grant.
    A company, having the grant of right and consent of abutters to construct and operate a street railway in a public street, may transfer and assign its franchise and interests in such street; but a stranger to the franchise cannot, by reason of a grant from the council to operate over this same street, construct its line under the consents granted to the first company 'On the ground that the same does not place additional burdens on the abutting property.
    4. When a Company may Construct Line under Another Franchise.
    Whether a street railway company having the right, by reason of its franchise and consents of abutting property owners, to construct its line in a certain street can consent to another company’s laying tracks in such street, under a new franchise, to the exclusion of its own tracks without the consent of two-thirds of its stockholders, quaere?

    5. Motive for Bringing an Action not a Defense.
    The motive that actuates one to bring an action to which he has a legal right is of no importance, and cannot be set up as a defense thereto.
    6. Effect on Public as Affecting the Determination of a Private Right.
    The fact that the enjoining the construction of a street railway, at the suit of an individual owner of property abutting on the street affected, .will work a hardship upon the public, will not suffice to defeat such owner of a legal right.
    [Syllabus approved by the court.]

      Appeal.
    Squire, Sanders & Dempsey, J. G. White and T. H. Hogsett, for plaintiff.
    Garfield, Howe & Westenhaver,-N. D. Baker and W. H. Boyd, for defendant.
   PER CURIAM.

This cause comes into this court upon appeal and is submitted to the court on a motion of the plaintiff, and a countermotion of the defendant, for judgment on the pleadings and admitted facts.

It is unnecessary to state in detail the averments of the pleadings. This suit is brought by an abutting property owner to enjoin the construction and operation by the defendant of a double track electric street railway on Central avenue, and the sole and only reason now urged by this plaintiff why such injunction should be allowed is, that there was not produced by the council before the passage of the ordinance granting to defendant a right to construct, maintain and operate such railroad on Central avenue, the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on that portion of said street, along which it is proposed to construct such railway, as required by Rev. Stat. 2505 (Lan. 3770; B. 1536-188) and Lan. Rev. Stat. 3765 (B. 1536-189), and Rev. Stat. 3439 (Lan. 5521).

The defendant, for answer to this claim of plaintiff, says:

First, that these statutes in so far as they require the consent of owners of abutting property to the construction of a street railroad are unconstitutional and void.

It is urged in support of this contention that the occupation of the street by a street railway is a proper and legitimate use thereof and one of the uses and purposes comprehended in the original grant or dedication of the same, and not different from the use by other vehicles for transportation of passengers or by pedestrians.

We think there is some ■ difference, and that difference is very plainly stated in the case of Cincinnati & S. G. Ave. St. Ry. v. Cumminsville, 14 Ohio St. 523, at page 545, in this language:

“So far as the carrying of passengers by this mode is concerned, it differs in nothing from the exercise of the common right of carrying them by coaches or omnibuses; and everything needing a grant, or the further authority of law, is the right to place and maintain in the highway, the necessary conveniences for this new description of carriages. ’ ’

It is further held in the same ease that if the easement of the abutting property owner of ingress and egress should be materially injured by the building and operation of the street railroad, then he must be fully compensated for such injury.

Again, it is held by the Supreme Court in the case of Hamilton, G. & C. Trac. Co. v. Parish, 67 Ohio St. 181, 191 [65 N. E. Rep. 1011; 60 L. R. A. 531], that:

‘ ‘ So long as his easement of ingress and egress is not materially injured, he is without remedy, * * * ■ that the city authorities had the power, under the constitution, to construct and operate a street railroad on and along the street without his consent and against his will, unless restrained by a statute, provided they caused no material interference with .his easement of ingress and egress. ’ ’

This would seem to be the only difference between this use of the street and any other, and because the Supreme Court has thus limited the property rights of abutting lot and landowners in streets, and having further declared in the case of Hamilton, G. & C. Trac. Co. v. Parish, supra, that the consents provided for in the sections under consideration, are not property rights, adhering to the lot, but a mere personal right in the owner of the lot, subject to bargain and sale, the defendant insists that the statute, conferring such a right, creates a favored class upon whom a privilege is bestowed, to the exclusion of others having equal rights and that the same is a violation of the trust reposed in the legislature of the state, in respect to public ways.

It must be conceded at the threshold of this investigation that every classification of individuals must be based upon some substantial, fundamental reason therefor. It is not required that every act of the legislature should operate at one and the same time on every member of society, but it is required that it must affect all who are within the reason for its enactment. The contention of the defendant herein is, that the Supreme Court -having decided that the abutting-lot owner has no special rights or interest in the street on which his property abuts in excess of the rights of the general public, other than the right of ingress and egress, for whiéh he must be compensated, if the same is materially interfered with, the creation of such class and conferring upon it such a privilege as is conferred by these statutes, were and are a mere arbitrary classification and grant special privileges upon such favored class without any fundamental reason therefor.

This w'ould seem to be a strong position were it not that upon investigation of the reported cases in Ohio, it appears that the constitutionality of this ¡legislation is no longer an open question in this state.

In the case of Roberts v. Easton, 19 Ohio St. 78, it was held, that such consent is a prerequisite to the power of the council to grant such permission.

In the case of Mt. Auburn Cable Ry. v. Neare, 54 Ohio St. 153 [42 N. E. Rep. 768], it was held that under the provisions of Rev. Stat. 3437 to 3443 (Lan. 5520 to 5528), inclusive, the consents of the owners of more than one-half of the feet front of the lots and lands abutting on each street to be occupied by such extension, are requisite.

In the case of Hamilton, G. & C. Trac. Co. v. Parish, supra, the nature of consents and the purposes of this legislation are fully discussed. In that case the Supreme Couiff says:

“Such personal rights were bestoxved by the general assembly on owners of abutting lots, as a check upon the power of municipal authorities to authorize street railroads to be constructed and operated against the wishes of the owners of lots on such street.”

In the opinion of Hamilton, G. & C. Trac. Co. v. Parish, supra, page 194, we find the following quotation from Probasco v. Raine, 50 Ohio St. 378 [34 N. E. Rep. 536] :

“If a statute is constitutional, it is valid, and cannot be set aside by a court, as being against public policy or natural right. There can be no public policy or right in conflict with a constitutional statute.”

In that case it was sought to have the consents that had bfeen procured by purchase held invalid, as against public policy, and the circuit court so held, but the Supreme Court reversed that holding, and in effect held that this legislation was neither unconstitutional nor against public policy. To the same effect is the doctrine announced by Judge Day in the case of Roberts v. Easton, supra.

There are other cases in which the Supreme Court considered this legislation, but the cases above cited are sufficient to show that the Supreme Court is committed to the doctrine of the constitutionality thereof, and it will not do to say that the Supreme Court has so fully considered the provisions of these sections and required the performance of the same, and expended so much time in ascertaining the purposes of this legislation and defining the rights therein granted, without regard to the constitutionality of the law. In view of the many declarations of that court, sustaining these statutes and requiring full compliance therewith, the rule of judicial subordination would require a court of inferior jurisdiction to hold the same constitutional and thus pass the question on to the Supreme Court as the only tribunal that has a right to review and reverse its declarations of the law, and therefore on this contention the defendant must fail.

The next contention of the defendant is, that in this particular ease no consents are required for the extension of its lines, even though the statute be •constitutional, because ever since the year 1868, this portion of the street has been devoted to street railway purposes; that the Cleveland Electric Railway Company owned and operated a line of street railway over and along this street, the franchise therefor having expired in 1905, but -notwithstanding the expiration of such franchise said railway company did continue to maintain and operate its line of railway over and upon this street until April 23, 1907, at which time, in obedience to the judgment of the Supreme Court of the United States, declaring that the term of its franchise had expired at the time first mentioned, it discontinued the operation of such railway, and within a few days thereafter removed its tracks and fixtures, but not until after the passage of the ordinance herein authorizing defendant to construct and operate its line; that in 1904, in anticipation of the expiration of the term of the grant to the Cleveland Electric Railway Company, the said council attempted, by ordinance, to grant a renewal of that franchise to the Forest City Company, which ordinance was declared invalid by the Supreme Court of Ohio; that in September, 1906, the city council of the city of Cleveland authorized the Forest City Railway Company, by ordinance, to extend its line, by constructing, maintaining and operating a double track.electric railway over and along the portion of this street, now sought to be occupied by this defendant, and that at that time there were, procured and produced to the city council the requisite con^nts of more than one-half of the lot and landowners abutting on said portion of said street; that by reason of these facts, all of which are admitted, this street had become and was a street devoted to street railway purposes, and in the nature of things, no further consents would be required.

Laning Rev. Stat. 3765 (B. 1536-189) provides, among other things, that:

“No change or extension of any existing route shall be granted over any street or streets now unoccupied by street railway tracks, unless the consent, of a majority of the owners of property abutting on such street or streets shall have been first obtained as now by law required.”

The ordinance under which this defendant claims the right to construct. maintain and operate this street railway, provides that:

“If at the time the grantee herein shall attempt to execute the rights conferred by this ordinance in said Central and Quincy avenues S. E., there shall have been constructed any Street railway tracks, the grant for which has not expired, the right hereby is limited to a right to use jointly with the owner thereof, such tracks, ’ ’ etc.

The agreed statement of facts shows that said Central .avenue was not then occupied by any such trades, but that as a matter of fact the grant to the Cleveland Electric Company had then expired and the tracks were then wrongfully and unlawfully in said streets, and were removed within a few days thereafter. Even if these tracks of the Cleveland Electric Railway Company can be considered as tracks occupying said street, which by the terms of Lan. Rev. Stat. 3765 (B. 1536-189), would make unnecessary the procuring of consents, yet by another paragraph of the same section it is provided that:

“Nothing herein contained shall authorize the extension of existing street railway routes or any portion thereof over and along existing tracks or portions thereof for a longer period than the terms for which the original franchises for such roads or routes existing at the time of the passage of this act, were granted. ’ ’

So that the term of the franchise of the Cleveland Electric Railway Company having expired, the rights of this defendant company to operate jointly with it over its tracks must necessarily expire with that company’s grant. If that were not true, then the city council could in this manner renew a franchise over a street occupied by a street railway company to a company other than the one in the original grant, or its assigns. The Supreme Court of this state has recently held in reference to this particular street, that this cannot be done. It is sufficient to say that if it cannot be done directly, it cannot be done indirectly. It is therefore clear from the agreed statement of facts that this street was not then occupied with tracks of any railway company then having the right to operate it for any term whatever, and this grant does not come within the exceptions contained in said section.

It is insisted, however, that the character «of this street as a street devoted to street railway purposes has been established, and having once been established and the consents having been procured and produced authorizing the same, that there is no longer any purpose in again requiring such consents to be procured and produced.

The Supreme Court in the case of Mt. Auburn Cable Ry. v. Neare, supra, page 153, declares it to be the law that:

“In the extension of a street railway over streets unoccupied by any road under the provisions of Secs. 3437 to 3443 [Lan. 5520 to 5528], Rev. Stat., inclusive, the consents of the owners of more than one-half of the feet front of the lots or lands abutting on each street to be occupied by such extension are requisite.”

The admitted facts in the case at bar do not distinguish it from the above case, and therefore, the consents were necessary to a valid grant.

- It is also insisted that there was filed in September, 1906, with the clerk, and produced to the council of said city, the requisite number of consents, and that said council thereupon granted a valid franchise to the Forest City Street Railway Company to construct, maintain and operate a double track electric street railway over and upon this portion of Central avenue; that said Forest City Street Railway Company has the right under said ordinance to construct and maintain the* same, and that this company is only proceeding to do that which another company has the absolute right to do, and for that reason construction by this defendant cannot injure or affect the plaintiff in any particular, and that a court of equity ought not to interfere for any whimsical reason the plaintiff may have, that would induce him to prefer that these tracks should be constructed by the Forest City Railway Company, instead of this defendant.

It is further claimed that by the limitations of Sec. 4 of the ordinance under which this defendant claims the right to construct these tracks, that no more than two tracks shall be constructed, and that the Forest City Street Railway Company knew of the limitation in Sec. 4 of this ordinance, and assented and consented to the same, and that by no possibility can this street be burdened by four tracks, instead of two, even though this defendant should construct the tracks instead of waiting until the Forest City Street Railway Company should do so.

It is denied by the plaintiff that the Forest City Street Railway Company assented or consented to the limitation in See. 4 of this ordinance under consideration, but for the purposes of plaintiff’s motion, if that averment of the answer would amount to a defense, the motion should be overruled.

Notwithstanding it is conceded thafr the Forest City Railway Company has the right to construct these tracks, it does not necessarily follow that it will do so. It may forfeit such right, or abandon the same. If that company never asserts its right against the plaintiff and other nonconsenting abutters, that failure must operate for their benefit, and not for the benefit of a stranger to its franchise. True, that company may assign its franchise and the assignee thereof may assert the right to construct such road, but it is not permissible for a third party to claim the rights of the Forest City Street Railway Company against noneonsenting abutters. No matter how remote the chance may be that the Forest City Street Railway Company, or its assigns, will not assert its right in this street, yet this plaintiff is entitled to tliat chance.

If it be conceded for the purpose of this motion that the Forest City Street Railway Company in some way has assented or consented to the limitations in Sec. 4 of this ordinance, and by reason thereof it would be forever estopped from constructing any line of railway over and along this street other than that proposed to be constructed by this defendant, it would still -be immaterial, as that company or its as-signee would be the only one that can make any claim under its franchise. If this road were constructed, we think the limitation of Sec. 4 of this ordinance is such as would prevent the ordinance from being declared invalid for want of consents, because no consents are required to authorize the city council to grant the right to a street railway company to extend its lines over and upon the tracks of another, for and during the term for which such company has a right to maintain and operate its road, but, in so far as it authorizes the extension in streets unoccupied by a-street railroad, consents would be required without which that portion at least of the ordinance authorizing the construction of new tracks would be invalid. Therefore, upon this contention the- defendant must fail.

i, It is insisted, however, by the defendant herein, that the necessary (consents were in fact produced to the council before the passage of this ordinance under which it claims the right to construct, maintain and operate- its road over and upon this portion of this street.

It does appear from the admitted 'facts in this case that enough consents were produced to the council, if all were available. These consents were of various kinds. Some of them were general in their nature, some of them specified particularly the Forest City Street Railway Company, some specified the Forest City Railway Company and the Cleveland Electric Company, and some specified the Cleveland Electric Company only. It is admitted that the rejection of any one class of these limited consents would reduce the entire amount below the requisite majority.

It is also admitted that all of the consents procured and produced to the council by the Forest City Railway Company at the time of the passage of the ordinance granting it a franchise to construct, maintain and operate a double track electric railway over and upon its street, were part of the consents produced to this council at the time the ordinance under which the defendant claims was passed, and it is admitted that if these consents could not be considered by the council, there were not sufficient others to confer jurisdiction.

It is claimed, first, that consents cannot be limited to any company, but that they operate in favor of the company to which the grant is made.

The Supreme Court of Ohio, in the case of State v. Bell, 34 Ohio St. 194, held, that these consents by whomsoever obtained, inure to the benefit of the lowest bidder.

In the opinion, at page 197, the reasoning of the court is as follows:

“Equally certain it is that the consents mentioned in Sec. 412 need not, in terms, be given to the person who is the lowest bidder; for the contract can be awarded to him alone, and the consents, it matters not by whom obtained or to whom given, are in substance assent to the construction and operation of the railway in the designated streets, and hence must inure to the benefit of the lowest bidder. ’ ’

In the ease of the construction of a new road the franchise must be granted to the lowest bidder. The city council has no discretion in that respect and the consenters when they sign the consents must be held to know that under the law, neither they nor the city council can designate to whom the franchise shall be granted. The statutes of our state require that it be granted to that person or corporation that offers to carry passengers for the lowest rate of fare. So that any attempt to limit such consents or to designate the beneficiary of the same, must 'prove abortive. That reasoning does not apply with equal force to the extension of an established route. The proposition in the latter case is as to whether or not a known company having either an established line or a right to construct such line shall have the further right to extend its road. No one is called upon to<bid. No one can bid for this franchise, because one of the terms of its grant is that no additional fares whatever shall be charged for carrying passengers over this proposed extension. The only possible profit would be from the accumulation of business. It is an entirely different question whether an abutter can in this case limit his consent to a specific company or individual, from the question presented, when the construction of a new road is contemplated. Aside from this, it is admitted that the same consents that were produced to the council at the time it passed the ordinance granting to the Forest City Railway Company its franchise, in September, 1906, were produced when this ordinance was passed, and that if these consents which clothed the city council of Cleveland with jurisdiction to pass the ordinance granting the franchise to the Forest City Railway Company cannot be counted, then this ordinance was passed without a sufficient number of consents being presented.

We are clearly of the opinion that these consents had expended all their vitality in clothing the city council with jurisdiction to pass the ordinance granting the franchise to the Forest City Railway Company. They had served their purpose, fulfilled their mission, and could be of no further use or effect. True, if the ordinance passed by reason of these consents were an invalid ordinance, they still could be used for the purpose of granting a valid ordinance; but it is concedecl here, for the purpose of this case, that the franchise of the Forest City Railway Company is a valid franchise, and, therefore, the purpose of these consents had been accomplished, except, however, that the consenters must be held to abide the effect of that grant for the term thereof, provided sueh term did not exceed the statutory limitation. This would include the right of renewal with the same company or its assigns, and the right to grant the joint use of this company’s tracks to other companies for the purpose of the extension of their lines. Aside from this, they could serve no other purpose, and the council had no right to consider or count the same in ascertaining whether or «not a majority of consents -had been produced.

The holding of the Supreme Court, in the case of Roberts v. Easton, supra, is clearly to this effect. On page 88, the court say:

“The original assent” [consent] “therefore, merged in the completed action of the city authorities.”

Having arrived at this conclusion, it is idle further to discuss the limited consents. If these consents of the Forest- City Railway Company are to be excluded, this franchise was granted without the requisite number of consents and did not confer on the defendant any right or authority to construct tracks along and over this street.

Upon another proposition not made in the pleadings or argued by counsel, we are of the opinion that it might be urged with much force that the municipality was without authority of law to grant the franchise of the defendant company in its present form, either with or without the statutory consents. It undertakes to grant to the Low Fare Company, not alone the right to‘use the tracks of the Forest City Company, but to pre-empt the right of way, and construct its own tracks to the exclusion of the tracks of the Forest City Company.

When the Forest City Company obtained its grant, it secured the right to construct its own tracks in the street, and, having done so, the right to make traffic contracts with other street railway and interurban companies for the use of its tracks.

In the case of Ingersoll v. Railway, 157 N. Y. 453 [52 N. E. Rep. 545; 43 L. R. A. 236], Chief Justice Parker quotes approvingly from Roddy v. Railway, 32 App. Div. 311 [52 N. Y. Supp. 1025], and following :

“ ‘The right or privilege to contract for its use with other railroads, and thereby derive a profit, was as much a part of its franchise as was the right to lay its tracks or operate its cars. This was a source of use which made its property and franchise valuable, and the corporation could no more be deprived of this right than the right of operating in any other respect as authorized by law.’ ”

Judge Parker also says, in the opinion in that ease:

“Salability is an essential element of property, and the destruction or the diminution thereof is a taking of property that cannot be done except through the exercise of the right of eminent domain or of the police power.”

It is a right, therefore, secured to the Forest City Company, both by statute and by contract, which neither the city nor the abutting lot owners can take away or impair. Yet counsel for the defendant concede that this is the effect of the grant to the Low Fare Company when they argue that new consents are not necessary, because no additional burden is placed upon the street. The tracks of the Forest City Company are legislated out of the street.

A grant to construct tracks in a street cannot be duplicated over the same right of way without impairing vested rights.

An ordinance which assumes to make such a grant would seem to that extent to be void, as violating the obligation of contracts.

It is said that the Forest City Company is consenting to this usurpation. Unless the answer means that the stockholders are consenting m the statutory way, it is no defense. The company cannot consent against their interests. It cannot, under the statutes, sell or lease its franchise without the consent of two-thirds of its stockholders, and even then it must make terms with the dissenting stockholders. Much less can it stand by and see another company appropriate one of its most valuable rights without compensation, claiming, at the same time, the privilege of using the consents which support its franchise, to legalize the appropriation.

A street railway franchise, carved out of the sovereignty of the state, is not a thing to be played with, in the courts or out of them. Under the statute law, the municipality cannot release the company by consent from any of its obligations or liabilities imposed, by the term of its grant,' during the life of its franchise. A fortiori, it cannot be •released from any of the obligations and liabilities imposed upon the city by the contract.

It is said that the city reserved the right to revoke the franchise of the Forest City Company. Upon what terms and for what reason revocation may be had, is not stated; but in any event, it must be exercised with respect to the inviolability of private property.

The next contention of the defendant is, that this plaintiff does not bring this action in good faith, but sues for the benefit of another.

It will be noted that this action is brought by the plaintiff in his own behalf only, and not in behalf of all others similarly situated. It is, in fact, identical with the case of Hamilton, G. & C. Trac. Co. v. Parish, supra. The answer in that case contained practically the same defense, word for word, with this one, and the Supreme Court held that it did not amount to a defense. The opening paragraph of the opinion, delivered by Judge Burket, is as follows, page 189:

‘ ‘ The contention in the pleadings and finding of facts as to whether Mr. Parish brought and prosecuted the action in good faith, is of no importance, because if he had a legal right which he sought to protect by an action in a court of justice, the motive which induced him to bring 'the action cannot be inquired into. ’ ’

It is true that this announcement of the law does not find its way into the syllabus of that case; yet it is not obiter, as that was one of the questions made in the case and necessary to be disposed of to reach a decision thereof. That case being identical with the one at bar, it is unnecessary for this court further to discuss this defense.

It is urged that it will result in great hardship to the public to permit one individual to obstruct the construction and operation of this street railway; but that cannot be true, for if a majority consent, the minority must submit. That principle obtains everywhere in our form of ‘government. If a hardship result to the public, the fault is with the legislation controlling this subject. A court is not permitted to legislate, but only to declare and enforce the law as it finds it, and any departure from this rule would be fraught with far more serious danger to the welfare of the people than mere temporary annoyance. If this be the law. the ear of the court cannot be open to arguments of expediency. These must be directed to the law-making power of the state.

Upon the pleadings and the admitted facts the motion of the plain-'tif'f for judgment will be sustained, and the defendant will be enjoined from constructing tracks in and upon that part of Centra] avenue described in the petition. The defendant will not be enjoined from jointly operating any tracks that may be constructed therein by the Forest City Railway Company, or its assigns, and the decree may be drawn accordingly.

Motion for new trial will be overruled, exceptions noted.


source: Caselaw Access Project

author: DUSTIN, J.

license: Public Domain

text:
    TAXATION.
    [Clark (2nd) Circuit Court,
    May 17, 1907.]
    Wilson, Sullivan and Dustin, JJ.

      Mary E. Whitely v. Clarence W. Arbogast, Treas.
    Necessity of Listing Bonds on Tax List.
    Since the amendment to the constitution, Art. 12, Sec. 2 (97 O. L. 652), exempting municipal bonds from taxation, a person is not required, under Rev.'Stat. 2737 (Lan. 407S), Par. 16, to list “the monthly average amount or value, for the time he held or controlled the same within the preceding year, of all 'moneys, credits or other effects, within that time invested in, or conveited into, bonds ‘of any municipality’ or of this state, not taxed, to the extent he may hold or control such bonds or securities on said day preceding the second Monday of April,” etc.
    [For other cases in point, see 7 Cyc. Dig., “Taxation,” §§ 399-403. — Ed.]
    [Syllabus by the court.)
    Appeal from Clark common pleas court.
    O. T. Martin and G. S. Dial, for plaintiff.
    J. B. McGrew, for defendant.

        Below, Whitely v. Arbogast, 17 Dec. 569.

   DUSTIN, J.

This case is here on appeal. The plaintiff brought an action to restrain the collection of certain taxes placed against her.

She alleges that in April, 1905, she returned all of her property,— some $13,000, — for taxation; that between listing day in 1905 and listing day in 1906, she purchased • certain municipal bonds, giving the dates and amounts (some were purchased in December, 1905, others in January, 1906, and others in March, 1906) ; that they are now exempted from taxation, but notwithstanding that, there has been placed against her for collection, the average, or supposed average value of the money or securities which had been, between the listing days, placed by her in these nontaxable securities, amounting to some $7,000, and that the officer in doing so relied upon Rev. Stat. 2737 (Lan. 4078), Par. 16, which reads:

“The monthly average amount or value, for the time he held or controlled the same, within the preceding year, of all moneys, credits, or other effects, within that time invested in, or converted into, bonds or other securities of the United States or of this state, not taxed, to the. extent he may hold or control such bonds or securities on said day preceding the second Monday of April;” etc.

The official obtained an opinion from the attorney-general of Ohio, of the proper interpretation of this law. The attorney-general held that money invested in municipal bonds would not (under the above section) be exempted from taxation — municipalities being divisions of the state — and that, at any rate, any other interpretation would be unconstitutional because it would give to municipal bonds a more favorable position than United States or. state bonds, since the money invested in United States or state bonds, between listing days, would have to be reported, — the average amount, — but not so as to municipal bonds; and in accordance with that opinion, the official acted.

Now the language is not obscure or ambiguous in any way; it reads, “bonds of the United States, or of this state.” In our view, that does not cover bonds of municipalities. But it is claimed that we should so hold because that is, or should be, the intention of the legislature, and if the legislature has not amended this section (which was last amended in 1868 I believe) it has been an oversight, and the courts, in behalf of the taxing power, and to make a uniform application thereof, should hold that these municipal bonds are included.

We think we have no right to read anything into the statute, except in cases where we find the legislative intent to have been to include other words or phrases.

It is very manifest that the legislative intent Avas not to include municipal bonds, because municipal bonds were at that time taxed. We have no right, therefore, to read that into the statute.

It is claimed that this interpretation would destroy the uniformity of the tax laws. That may be, and it probably is true that this act, since the amendment to the constitution relieving municipal bonds from taxation, is unconstitutional; but it is not for us to declare, because the language of the section does not include municipal bonds, and it is therefore of no concern to us in the determination of this case.

Some holder of United States or state bonds, who has invested in the same between listing days, and who is taxed the average amount or value of the money invested therein, may bring an action, and upon such action possibly that section may be declared to be unconstitutional, but that is of no concern to us, because municipal bonds are not mentioned.

We are unable to take any other view than that taken by the common pleas court in this case. As it came up on demurrer to the petition, the demurrer will be overruled, as it was by the court below.

Wilson and Sullivan, JJ., concur.


author: MARVIN, J.

text:
    ALIMONY — ATTACHMENT AND GARNISHMENT.
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Marvin, Winch and Henry, JJ.
    Charles Kelso v. Emma F. Lovejoy et al.
    Garnishment or Alimony before It is Pato oveb.
    A sum of money decreed to be paid to a divorced wife, by the husband who proeirred the divorce for the wife’s aggressions, is a fund belonging to the wife, applicable to the payment of her debts, and may be reached in the hands of the husband, before being paid over by him, by attach- ■ ment and garnishment proceedings.
    . [Proof of this decision and syllabus was submitted to Judge Marvin and corrected. — Ed.]
    Ekeor to Cuyahoga common pleas court.
    Klein & Harris, for plaintiff in error.
    Herrick & Hopkins, for defendants.in error.
   MARVIN, J.

The only thing here to be determined is whether certain money which, under an order of the court of common pleas, one Clarence D. Lovejoy was required to pay to said Emma F. Lovejoy and which has not been paid, can be reached by attachment and garnishee, by a creditor of said Emma.

Proper grounds for the issuing of the attachment are shown in the affidavit. Is there a fund liable to be attached? The order requiring the payment to be made by Clarence to Emma was entered in an action in which Clarence sued Emma for divorce, end was successful. The decree of divorce, as far as it need here l. noticed, reads:

“The court further finds that the defendant” (Emma F. Lovejoy) '“has been guilty of wilful absence from said plaintiff” (Clarence D. Lovejoy) “for three years prior to the filing of his petition herein and by reason thereof the plaintiff's ent.' n to a divorce as prayed for. It is therefore adjudged and decreed that dm marriage contract heretofore existing between the parties be .-.nd the same is hereby dissolved and both parties are released therefrom. The defendant is hereby allowed as reasonable alimony the sum of $560, payable in monthly installments of $20 on the tenth of each month hereafter, and said plaintiff is ordered and adjudged to pay to said defendant the said sum of $560 in monthly installments of $20 on the tenth of each month, said payment to be made to the clerk of this court for said defendant. ’ ’

It will be noticed that, though the money here ordered to be paid is spoken of in the order as “alimony,” it is not macle under the stsf-ute authorizing the court to allow alimony to the wife. That statute is Rev. Stat. 5699 (Lan. 9233), and provides for alimony to the wife only in cases where the wife is granted a divorce by reason of the aggression of the husband.

In cases where the husband is granted a divorce by reason of the aggression of the wife, the court is authorized to grant alimony to the husband in a proper case, but not to grant alimony to the wife. Revised Statute 5700 (Lan. 9234). The provisions in such a case as to the property rights of the wife are, that she shall be barred of all right of dower; that she shall be restored to all of her lands, tenements and heredita-ments not allowed to her husband as alimony, subject to his right of dower therein, “and the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just and reasonable.”

The reading of these two sections makes it very clear that the allowance made to the wife, in case she secures a divorce from her husband, stands upon a very different footing from that upon which the allowance to-her stands when he is granted a divorce on account of her aggression. In the former case, every consideration of good morals and common justice requires that he should contribute to the support of the wife and not be relieved of that duty because he has so conducted himself that he is no longer worthy to be her husband, and reasons for holding that such allowance should not be diverted from that purpose may be very strong, which do not exist at all where, by reason of her wrongdoing, she is unfit to be his wife and the court has awarded her a reasonable, share of his property. The fact that what was allowed to Mrs. Love joy here is called “alimony” in the order cannot affect the question of what the court had authority to do. That authority was to “adjudge to her such share of her husband’s property as it deemed reasonable.” That having been so adjudged to her became her property and subject to be applied to the payment of her debts, as any other property belonging to her would be.

The authorities cited as to the nature of a claim for alimony which has been decreed, but not paid, are not applicable to a case like the one under consideration.

In the case of Hassaurek v. Markbreit, 68 Ohio St. 554 [67 N. E. Rep. 1066], Judge Shauek says, in the opinion, on page 579:

“Nor need we consider the nature of the obligations upon which decrees for .alimony are founded since the finding of the court upon the evidence that the wife had been wilfully absent for more than three years, and its judgment that the marriage relation should be terminated for that reason, excluded her right to alimony. The court having con-eluded that a divorce should be decreed for her aggression, its further jurisdiction was defined by Sec. 5700 [Lan. 9234] Rev. Stat.”

The court below erred in its holding that this attachment should be disehatged, and for that reason the judgment is reversed.

Winch and Henry, JJ., concur.


author: PARKER, J.

text:
    ASSESSMENTS — SEWERS.
    [Lucas (6th) Circuit Court,
    March 9, 1907.]
    Haynes, Parker and Wildman, JJ.
    Kohler Brick Co. et al. v. Toledo ( City) et al.
    1. Necessity oir Notice of Sewer Improvement and Assessment.
    The notice required to be given, to owners of property benefited, of resolutions and proceedings for the construction of a sewer system is not applicable to a case where the council is proceeding to construct a sewer that is a part of a general system that has already been planned, and provided for by proper proceedings.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 196-222; 6 Cyc. Dig., “Municipal Corporation,” §§ 1237-1268. — Ed.]
    2. Method of Assessing Property for Public Improvement.
    Where unplatted property abuts on a sewer or other improvement within a municipal corporation, a part of which is not benefited by such im- ' provement, it is within the power of the council to limit the assessment on such property to the extent of the* benefits received, by assessing same proportionately to the depth of an ordinary platted lot.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 300-371. — Ed.]
    3. Nature of Ordinance Providing for Assessments.
    An ordinance providing for the assessment of property benefited by sewer improvements is of a special nature, and not within the meaning of Rev. Stat. 1695 (Lan. 1308) which requires the publication of ordinances of á general nature.
    [For other cases in point, see 1 Cyc. Dig., ‘-¡Assessments,” §§ 169-195; 6 Cyc. Dig., “Municipal Corporations,” §§ 1280-1303. — Ed.]
    4. Effect of a Bond Issue' for Cost of Improvement.
    Where a bond issue is provided for the payment of the whole cost of sewer construction no certificate from the auditor, that funds are on hand to pay for the sewer, is required.
    5. Slight Change in Sewer Plans not Objectionable.
    Slight changes in an adopted sewer plan will not invalidate the legislation or assessments where the sewer is not rendered less serviceable, or valuable, or more expensive, nor affected in any material manner.
    [Syllabus approved by the court.]
    LstjunCtion.
    Holbrook & Monsarrat, for plaintiffs:
    Cited and commented upon the following authorities: Tyler v. Columbus, 3 Circ. Dee. 427 (6 E. 224) ; Krumberg v. Cincinnati, 29 Ohio St. 69; Caldwell v. Carthage, 49 Ohio St. 347 [31 'N. E. Rep. 602]; Joyce v. Barron, 67 Ohio St. 264 [65 N. E. Rep. 1001] ; Chicago & TS. By. v. Keith, 67 Ohio St. 279 [65 N. E. Rep. 1020; 60 L. R. A. 525]; Toledo v. Railway, 2 Circ. Dec. 450 (4 R. 113) ; Ayers v. Toledo, 26 O. C. C. 767; Comstock v. Nelsonville, 61 Ohio St. 288 [56 N. E. Rep. 15] ; Minor v. Hamilton (Bd. of Cont.), 11 Circ. Dec. 16 (27 R. 4).
    C. S. Northup, for defendants.
   PARKER, J.

This is an action brought to enjoin the collection of assessments made upon the lands of the plaintiff, which appear to be unplatted lands in sewer district No. 36 of the city, for the cost of construction of a sewer therein, designated as “main sewer district 898.” The case is submitted upon the pleadings and an agreed statement of facts. It is set forth in the petition, quoting therefrom, that—

“On October 5, 1903, the common council of the city of Toledo adopted a resolution declaring the necessity for constructing á main sewer for main sewer district number thirty-six, city of Toledo, Ohio.”

Then the petition further sets forth that the sewer was constructed in pursuance of that resolution. It is claimed that these assessments are invalid and their collection should be enjoined, for various reasons, and the reasons now urged by counsel for the plaintiffs, in brief and in oral argument, I will endeavor to take up and discuss in the order in which they are stated in the brief. I may say that a great many grounds of invalidity set forth in the petition are abandoned or based upon statements of fact that are not supported by any finding, agreement or -evidence of such facts. ;

The first point made against this assessment, and perhaps the one that is most important, and the one which, if well founded, has the most merit in it, is that with respect to an alleged want of statutory notice to parties interested, of certain steps taken in the course of] the proceeding. It appears that sewer district No. 36 was established and a plan of sewer and sewage disposal plant therefor.was adopted by an ordinance passed and approved in August, 1900, and that when the council came to ’proceed with respect to this particular sewer, their first step was the adoption of a resolution declaring the necessity for constructing a main sewer and sewage- disposal plant for main sewer district No. 36, Toledo, Ohio in accordance with such plan. That resolution discloses the necessity of the- sewer- and describes it — its dimensions, ‘its length, its course, its outlet, .etc. — and says that it is to be constructed for the purpose of disposing of the sewage of said main sewer district No. 36 in accordance with plans, etc., on file in the- city engineer’s office. It provides:

"That the cost and expense' of the sewer and sewage disposal plant shall be levied and assessed upon .the lots and lands bounding and abutting thereon and benefited thereby according to benefits accruing therefrom in a sum not to exceed the amount that would, in the opinion of the council, be required to construct an ordinary street sewer or drain of sufficient capacity to drain such lots and lands, and the remainder of the costs and expenses of constructing said sewer and sewage disposal plant, except the amount charged to the municipality and except the amount assessed for local drainage, shall be assessed upon all the real property in sewer district No. 36, in which said main sewer 898 is located, according to benefits- — said assessments to be made in five annual installments in accordance with the sections of the Revised Statutes of Ohio applicable thereto.” ' -

And it is therein further provided that—

"All persons claiming damages for the foregoing improvements must file their claims thereto with the clerk of council within four weeks after the first publication of this resolution.”

Provision was made for the publication. of this resolution once a week for four weeks; and such publication appears to have been made.

The next step in the way of legislation was the passage of an ordinance, on January 13, 1904, which is entitled: "An ordinance, No. 46, determining to proceed with the construction of sewer No. 898, and sewage disposal plant for main sewer district No. 36.” That ordinance provides for the construction of the sewer, the assessment of the cost, etc., in harmony with the provisions of the resolution; and it also provides for the issuing of the bonds of the city in anticipation of the collection of such part of said assessment as shall remain unpaid after the time prescribed in the assessing ordinance for cash payment, and in an amount equal thereto. It also makes provision for the assessments being paid in cash if the parties liable therefor shall choose so to pay. It provides how the contract shall be paid, how the contract for the work shall be executed, etc. It appears that in the course of the proceedings an assessing committee was appointed that proceeded to make an assessment upon the property abutting upon the streets through which the sewer extended, according to special benefits; and that this committee, in pursuance of legislation by the council, took into consideration so much of the property of the plaintiffs specially benefited by -this improvement as fronted upon the streets through which the sewer district extended to a fair average depth of the platted lots 'contiguous to such unplatted lands and that the assessment upon said lands was laid upon such part of the lands only. And then, by an-ordinance passed on March 2-7, 1905, these assessments were confirmed, and proper provision was made for their being duly recorded and collected.

In the agreed statement of facts certain other particulars are set forth, io some of which I may make reference in the course of this opinion.

It is contended by the plaintiffs that notice of this preliminary resolution should have been given them, as required by See. 52 of the act of the legislature (96 O. L. 40; Lan. 3603; B. 1536-212), called the new municipal code, passed on October 22, 1902, and which took effect on May 4, 1903.

Section 51, 96 O. L. 39 (Lan. 3602; B. 1536-211), provides:

“Whenever it is deemed necessary by any city or village to make any public improvement to be paid for in whole or in part by special assessments, council shall declare by resolution (three-fourths of the whole number elected thereto concurring, except as otherwise provided herein) the necessity of such improvement, and thereupon prepare or cause to be prepared plans, specifications, estimates and profiles of the proposed improvement, showing the gradé of the same with reference to the property abutting thereon, which plans, specifications, estimates and profiles shall be filed in the office of the department of public service in cities and in the office of the clerk in villages, and shall be open to the inspection of all persons interested. Not earlier than two weeks after the passage of said resolution, and before any such improvement is begun, council shall by ordinance (three-fourths of the whole number elected thereto concurring) determine the general nature of the improvement, what shall be the grade of the street, alley or other public place to be improved, as well as the grade or elevation of the curbs, and approve the plans, specifications, estimates and profiles for the proposed improvement. Council shall also determine in said ordinance the method of the assessment, the mode of payment therefor and shall declare whether or not bonds shall be issued in anticipation of the collection of the same.”

There are some other provisions which I will not read, the last sentence in that section being:

“Said resolution and ordinance shall be published as required in Sec. 124 of this act.” ,

Then Sec. 52, 96 O. L. 40 (Lan. 3603; B. 1536-212) provides:

“A notice of the passage of the ordinance required in the last preceding section shall be served by the clerk of council or an assistant upon the owner of each piece of property to be assessed or upon the persons in whose names the same may be assessed for taxation on the tax duplicate, in the manner provided by law for the service of summons in civil actions; * '* With some further provision; respecting service of corporations and nonresidents.

It will be observed that in this case no such ordinance as is provided for in Sec. 51, 96 O. L. 39, was passed by the council — the ordinance which the counsel for the city here before us are in the habit of describing as the “intermediate ordinance” — and that Sec. 52, 96 O. L. 40, does not provide for this personal service of notice of any other legislation than such ordinance; so that, if such ordinance were required, the proceeding is defective, and fatally defective, not only because there was no notice of the ordinance, but because there was no ordinance of which notice could be given.

It is contended on behalf of the city that this provision as to the intermediate ordinance and as to the service of notice thereof, does not apply in a case like this where the council is proceeding to construct a sewer which is a part of a system wrhich has already been planned and provided for by proper legislation in pursuance of Secs. 77, 78, 79, 80, 81, 96 O. L. 47, 48 (Lan. 3632 et seq.; B. 1536-240 et seq.), and perhaps some of the following sections of this same statute upon that subject; and so, disregarding the provisions of Secs. 51 and 52, 96 O. L. 39, 40, the council proceeded under See. 84, 96 O. L. 48 (Lan. 3639; B. 1536-247), and adopted the resolution.

Section 84 reads:

“When it is deemed necessary by a city or village to construct all or a part of the sewers provided for in said plan, the council shall declare by resolution the necessity of such improvement. Said resolution shall contain a declaration of the necessity of said improvement, a statement of the district or districts or parts thereof proposed to be constructed, the character of the materials to be used, a reference to the plans and specifications, where the same are on file, and the mode of payment therefor, and the council shall cause the resolution to be published once a week for not less than two nor more than four consecutive weeks in one newspaper of general circulation in the corporation.”

We are of the op'inion that these special provisions with respect to the construction of sewers in pursuance of a plan and appropriate legislation. already adopted control the council and are independent of the provisions of Secs. 51 and 52, 96 O. L. 39, 40.

We had before us, recently, in Wood county, a question very much like this, with respect to sidewalks, coming under the same subdivision of this part of the statute defining the powers of municipalities. The case was that of Westenhaver v. Hoytsville (Vil.), 28 O. C. 357. It will be observed, on looking into the statutes, that a mode of procedure with reference to the construction of sidewalks, as well as other improvements, is provided for by Secs. 50, 51, 52, 96 O. L. 39, 40, and some following sections; but a more summary method of procedure is provided for by Sees. 70, 71, 96 O. L. 45, and some of the following sections; and we held that in proceeding under Sec. 70 et seq., the council were not required to observe the formalities provided where the system or method described in Sec. 50 et seq., was pursued; we held that—

“A special ordinance for the construction of a specific sidewalk is not required, where a general ordinance for the construction of sidewalks has been theretofore enacted.”

This case is analogous. If the council were proceeding here to construct a sewer not before provided for by legislation, and not before planned, it would doubtless be necessary to pursue the course marked out in Secs. 51 and 52, 96 O. L. 39, 40; but where they are proceeding in pursuance of a plan already adopted, we think that is not necessary. That had been the law of the state up to the time of the adoption of this act of October 22, 1902, and it was expressly provided, in original Rev. Stat. 2304 (see Lan. 3603; B. 1536-212), that in the case of sewers, the twenty days written notice to the owners of the abutting property or to the persons in whose names the abutting property is assessed, was not required; and it is not apparent to us that in respect to these matters, the legislature designed to make any radical change in the law; the general scheme appears to be the same. There are some transpositions of the provisions, and different arrangements of sections, and the omission of some language that, doubtless, appeared to the legislature to be verbiage, and this particular provision respecting notice found in Rev. Stat. 2304 (see Lán. 3603; B. 1536-212) was omitted from the new municipal code: but we think such omission effected no change in the law.

By an act passed on April 19, 1904 (97 O. L. 121), entitled “An act to amend See. 51” and a number of other sections of this new municipal code, including Sec. 60 (Lan. 3611; B. 1536-220), we observé that this provision was added to Sec. 60, which appears on page 123:

“In the case of construction of sewers hereafter, excepting main or district sewers, notice of the passage of the resolution therefor, as provided in Sec. 84 of the act of which this is amendatory shall be made in the manner provided in Sec. 52 of said act as amended herein.”

In other words, thereafter personal service of notice of the resolution should be given. Counsel for plaintiff, in his brief, asks:

“Is it not a fair argument that the legislature thereby declared that original Sec. 52 as passed was intended to mean just what it said, and is, therefore, broad enough to include sewers and all special assessments where materials are used, and, for reasons of their own, no notice should thereafter be given in case of a main sewer?”

But I have already pointed out that what Sec. 52, 96 O. L. 40, provided for was service of notice, not of the resolution, but of a certain ordinance of a certain character which was not passed in this case, and which we hold was not required. So that this amendment of See 60 cannot be regarded as declaratory of the meaning of Sec. 52, 96 O. L. 40, as it originally stood; i. e., that it should apply to the resolution provided for by See. 84, 96 0. "L. 48; but this amendment provides for a new thing — it makes a new requirement — and that is, that personal service of the notice of the resolution provided for in Sec. 84 shall be made. And even now the provision is made to extend only to local sewers. Main sewers are expressly excepted from the operation of the provision; and this sewer, according to the averments of the petition, as well as by the agreed statement of facts, was a main sewer, notwithstanding the fact that it did not provide for the conveying away of any storm water or water from the streets; it was distinctively, and exclusively a sanitary sewer, and yet to all intents and purposes a main sewer.

Our attention is called to the case of Chicago & E. Ry. v. Keith, 67 Ohio St. 279 [65 N. E. Rep. 1020; 60 L. R. A. 525], wherein it is held that the law providing for assessments will be invalid unless it provides for notice to the property owner whose property is to be assessed, somewhere along the line of the proceedings, so that he may have an opportunity to come in and make objections. But it does not require that the notice shall be personal. This legislation of the council, and the law under which it was passed, provide for notice at several stages of the proceeding. The legislation was published; there was opportunity for hearing upon the original legislation with respect to the forma-, tion of the district and .the plan of the sewers and sewage disposal therefor, and notice was given of the assessment which had been made and which was on file.

Secondly, objection is made because the council provided for the assessing of only a part of these unplatted lands; to wit, the part abutting upon the street where the sewer was laid, to a depth equal to the average depth of the platted lots in that vicinity. It is said that there was no authority for thus limiting the assessment to a part of these unplatted lands.

The statute formerly provided, in original Rev. Stat. 2379 (see Lan. 3640; B. 1536-248), that:

“The council shall provide for assessing the cost and expenses of constructing main sewers, upon the lots and lands bounding or abutting upon the streets, lanes, alleys, highways, market spaces, public landings, and commons, in or along which the same shall pass, by the feet front, or according to the valuation of the same on the tax list, or according to benefits, as it shall determine.”

And it is said that in the new municipal code no provision can be found corresponding with that, authorizing the laying of assessments upon the abutting property according to benefits, this original Rev. Stat. 2379 (see Lan. 3640; B. 1536-248) being repealed by the act which I call the new municipal code.

The authority for levying the assessments is found in Sec. 50, 96 O. L. 39 (Lan. 3600; B. 1536-210), which then read:

“The council of any municipal corporation may assess upon the abutting, adjacent and contiguous or other specially benefited lots or lands in the corporation, any part of the entire cost of, and expense connected with, the improvement of any street, alley or public road or place by paving,. repaving, repairing, constructing sidewalks, sewers, drains or water courses and any part of the cost of lighting, sprinkling, sweeping, cleaning, or planting shade trees upon the same, by either of the following methods:
“First. By a percentage of the tax value of the property assessed.
“Second. In proportion to the benefits which may result from the improvement, or
‘£ Third. By the foot frontage- of the property bounding and abutting upon the improvement.”

And then the limitations as to the assessments, substantially as they existed theretofore, are to be found in Sec. 53, 96 O. L. 40. There is in Sec. 50 authority for assessing according to benefits upon abutting property. But let me go further in stating the plaintiff’s position. His contention is, that the whole of this unplatted land should be considered as abutting property, and that there is no authority for limiting the lien of the assessment to this strip of land abutting upon the street where the sewer was laid. It was formerly provided, in original Rev. Stat. 2269 (see Lan. 3604; B. 1536-213), as follows:

“In making special assessments according to valuation, the council shall be governed by the assessed value of the lots, if the land is subdivided and the lots are numbered and recorded; but if the lots are not assessed for taxation, or if there is land not. subdivided into lots, the council shall fix the value of the lots or the value of the front of such land to the usual depth of lots, by the average of" two blocks, one of which shall be next adjoining on either side; * *

But the last provision of that section is: “And this section shall be applicable to special assessments provided for in this chapter, excepting assessments according to benefits.”

So that it is not apparent that there was ever a provision for thus limiting the scope of the lien of special assessments, where they were laid according to benefits, and there seems to be no particular reason why there should be such limitation in those cases. We are of the opinion that where it would be proper — where it would be just to the owner of the unplatted land to thus limit the scope of the lien, it is Avithin the power of the council to do it, Avithbut any special' provision upon the subject; and it seems to us that in a case like this, the lands extending a great distance from the street where the seAver Avas laid, when the council came to proAdde for the levying of an assessment upon the abutting property according to benefits, it would have been Arery wrong and very unjust to the OAvner of the property to have considered its full depth and allowed the assessment to be spread over the Avhole extent of the territory. One might oaati farm lands extending back from the sewet so that the rear part, or all except the very front part of the lands, would be without the local benefits contemplated, or on account of which a special assessment might be levied. It is apparent that in a sanitary sewer of this description the only property that would be specially benefited would be the property lying immediately adjacent to the street where the sewer was laid; and it would seem to be not only proper but just, but a thing that should be required of the council, that in considering the levy for this improvement it should take into consideration the depth of ordinary building lots upon which houses might be built which could have access to this sanitary sewer for the purposes of such sewer. If the .assessment had been levied without this restrictive limitation we think the plaintiff’s lands might have been bound by it; but, in the absence of a showing that they are prejudiced in any way by the course pursued by the council, we are of the opinion that they have no footing in a court of equity; and no express statutory provision upon the subject seems to have been violated or disi’egarded.'

Complaint is made that the cost of intersections was levied upon the abutting property and was not paid by the city. It is conceded, as we -understand it, by the city, that this was a mistake; that the amount of such costs, to wit $1,314.60, and that a ratable proportion thereof should be deducted from the assessments charged against the plaintiffs.

It is said that the assessment ordinance was not published as required by Rev. Stat. 1695 (Lan. 3108; B. 1536-621) ; that is to say, that it was not all of it published. The assessment ordinance refers to the report of the assessors in these words:

“And the council further find and hereby further declare that the lots and lands assessed to pay the cost of said improvement are benefited thereby in proportion to the amounts assessed against the same respectively, by said committee, and that said assessment so reported by said committee upon each lot or parcel of land does not exceed its proportion of such special benefits and there is hereby assessed and levied upon the several lots and lands described in said report the amount therein set forth, for each of the several years therein named, as shown by the schedule of assessments hereto attached signed by said committee, and dated December 27, 1904.”

It is urged that thereby the report was made a part of the ordinance and should have been published with it. It appears that that was not done. But we are of the opinion that it was not necessary to publish this ordinance at all; so that we need not pass upon the question whether the schedule was made a part of the ordinance so that in’ case the. publication of any part of it was required, the schedule should be published with it.

Revised Statute 1695 (Lan. 3108; B. 1536-621) requires that—

“Ordinances of a general nature or providing for improvements shall be published in some newspaper of general circulation in the corporation; * *

This ordinance was not an ordinance providing for an improvement; the improvement had been provided for; and it was not an ordinance of a general nature, but was of a special nature.

It is said that there was no certificate from the auditor of funds on hand to pay for this sewer, as required by Sec. 45, 96 O. L. 37 (Lan. 3999; B. 1536-205), as now found in the statutes. The ordinance provided for the issuing of bonds for the payment of the whole cost, and, under the authority of Emmert v. Elyria, 74 Ohio St. 185, we hold that no certificate from the auditor was required.

IVe are not required to meet or decide the question which is suggested, to wit, as to whether this point touching the validity of the contract could be raised in this way after the work is all done and paid for.

It is said that there was some change in the plans — that is, in the length and dimensions of the sewer — a change from the plans originally adopted. It is not pointed out to us that this Change was in any way material: that it rendered the sewer less serviceable or valuable, or more expensive, or that the change worked to the prejudice of the plaintiffs in any respect whatever; and we are of the opinion that the slight changes indicated could not invalidate the legislation nor assessments. It follows that our decree will be the same as the decree entered in the court of common pleas in this case. The parties are relieved from the expense of $10, the cost of improperly advertising the assessment ordinance. The costs of the appeal will be adjudged against the plaintiffs.

Haynes and Wildman, JJ., concur.


author: HULL, J.

text:
    COUNTIES — HIGHWAYS—NEGLIGENCE.
    [Williams (6th) Circuit Court,
    January 21, 1905.]
    Ella Smith v. Williams Co. (Comrs.).
    County Cowmissioneks not Liable eoe Injuries from Deeective Highway.
    Revised Statute 845 (Lan. 2104) does not impose upon county commissioners the duty of keeping unimproved county highways in repair. Therefore, such commissioners are not officially liable for injuries sustained by a person, by reason of the conveyance in which she was riding sliding into a deep rut or hole. And on such a showing a directed verdict for defendants is not error.
    [For other cases in point, see 3 Cyc. Dig., “Counties,” §§ 565-680. — Ed.]
    ERROR to Williams common pleas court.
    L. E. Griffin and C. L. Newcomer, for plaintiff in error.
    Edward Gaudern and C. E. Bowersox, for defendants in error.
   HULL, J.

This action was brought against the board of commissioners of Williams county under Rev. Stat. 845 (Lan. 2104) to recover damages for personal injuries the plaintiff claims she sustained on account of one. of the county roads of the county being out of repair and dangerous at the time of her injuries. She alleges in her petition that she had been in the town of Bryan on the day of her injury; started home in the evening with a livery rig and driver, find at a certain point in this road, or a certain portion of the road I would say, where she was driving, it was out of repair and had been for many months, in. that there were dangerous, holes in it, washouts, pits, and deep gullies, and that, the commissioners had carelessly and negligently permitted that condition of affairs to exist, and as she was driving along in the buggy, her driver undertook to pass another conveyance going the same direction, and the accident occurred, the wagon in some way sliding' into one of these holes, and she was injured, for which she asks damages.

The plaintiff offered testimony, quite a large amount, which tends to show that the allegations in her petition are true as to the facts in the case, but at the conclusion of the testimony in favor of plaintiff, a motion was made to direct a verdict in favor of defendants, upon the ground that the county was not liable in this case and that it was not one that fell within Rev. Stat. 845 (Lan. 2104), making the commissioners liable in their official capacity for negligence. This motion was argued and sustained by the court of common pleas; the verdict directed in favor of the commissioners, which is in favor of ‘the county; suit was brought against them in their official capacity, and the question here is, and practically the only question whether under the facts in this case and under the law there was any liability on the part of the county.

The case was argued very fully and very full and comprehensive briefs hied by counsel in the case. A very large number of statutes were cited and reviewed by counsel in oral argument and in briefs filed. Prior to The amendment of Rev. Stat. 845 (Lan. 2104), as has been held by the Supreme Court, and as is well known, there was no liability on the board of commissioners for injuries such as this. The county was a mere territorial division for governmental purposes, erected largely for the convenience of the state, and unlike the case with municipal corporations there was no liability imposed upon the community or upon the county for injuries resulting from defective roads. There were officers such as county commissioners, trustees and supervisors who, under certain conditions, were ' given the power to improve roads, or levy taxes, but a person using the roads, so far as defects were concerned, did it at his own chances, or at his own risks, without any right to bring an action for damages on account of defects in the road; but this Rev. Stat. 845 (Lan. 2104) introduced a new element, by providing that county commissioners may sue and be sued and shall be capable of pleading and being impleaded in any court of judicature and of bringing, maintaining and defending all suits, either in law or in equity, involving any injury to any public state or county road, bridge or ditch, drain or water course established by such board in their county, and, for the prevention of injury to the same,' any such board of county commissioners shall be liable in their official capacity for any damages received by reason of the negligence or carelessness of said commissioners, in keeping any such road or bridge in proper repair. It is this last thing that I have read that imposes the liability upon the county in this case.

No case exactly like this has been before the Supreme Court under this- statute. Cases involving actions on account of defective bridges, defective on account of not being kept in repair, or in their construction, have been before the Supreme Court. There are two leading, cases of this kind, Alexander v. Brady, 61 Ohio St. 174, 175 [55 N. E. Rep. 173] ; Hardin Co. (Comrs.) v. Coffman, 60 Ohio St. 527 [54 N. E. Rep. 1054; 48 L. R. A. 455], It has been held in those cases that there was a liability on the part of the county as represented by the county commissioners for negligence in not caring for the county bridges; but whether the county is liable in such a case as this has not been decided by the Supreme Court. That this was a county road seems to be admitted, but it is urged that no duty is imposed upon the county commissioners by any statute, of making such repairs as seem to have been necessary here under the circumstances of this case, while, in the case of bridges by express statutory provision, the duty is imposed upon the county commissioners to keep them and their approaches in repair.

This statute malíes the county liable for the negligence of the commissioners. There can be no negligence unless some duty has been imposed upon them in reference to a case of this kind. The commissioners have power to levy taxes for road and bridge purposes, and it is their duty in some cases to repair roads; as, for instance, where, by freshet or inundation, the road has been-partially or wholly swept away so as to render it impassable, there it is th<- duty of the commissioners to repair the road. That is not claimed to be the case here, but it is claimed that this condition existed in the road for several months as alleged in the petition.

■ Now, we have examined, so far as we know, all of the statutes bearing upon this question, and we have been 'unable 'to find any statute expressly imposing this duty upon the county commissioners in a case of this kind. I will not undertake to review all of the statutes bearing on roads and bridges as they are numerous and it would be impossible to review them in this opinion, but it will be observed that this statute only makes the county liable for the negligence of the commissioners. It does not, as in some of the bridge statutes, make the uounty liable for damages in case of fáilure to repair and keep in repair bridges as expressed in some of the bridge statutes. Negligence is the failure to use ordinary care. It is the failure to perform a duty imposed upon one' either by statute or by eommou law, and the language used here, in using the word “negligence,” is different from that used in the bridge statutes, and in order to make the county commissioners liable for defects in county roads under this statute, it must be shown that they were negligent in some respects.

■ It is provided in some of the statutes relating to improved roads and in other eases that the ,commissioners shall keep them in repair, but there is no such provision as to an ordinary county road. On the contrary, express provisions are made in some statutes, as to township trustees’ keeping roads in repair, and conditions as to supervisors’ keeping roads in repair in their district, and provisions as to the fund from which they may draw to keep the roads in their district in repair.

In this county there are some one hundred and forty supervisors.

Judge Williams, in delivering the opinion of Hardin Co. (Comrs.) v. Coffman, supra, discusses the question wTith reference to roads, and he says in the course of that discussion that the county is liable for defects in the highway, and puts them on the same level with bridges, and in discussing that question he discusses it as though there was a general liability on the county in failing to keep the county and state roads in repair.

As I have said, the statute as to bridges has expressly provided that the commissioners keep them in repair, and therefore what is said by Judge Williams cannot be regarded as decisive of this question, oí-as the decision of the court. So far .as we are able to find, there is no such express duty imposed upon the county commissioners in reference to such a road as this, and under these circumstances it is provided by some of the statutes, where repairs are to be made, a petition is to be filed invoking the action of the county commissioners to give them jurisdiction in the matter. Nothing of that kind has come in this, case, or any evidence offered to show it. It not appearing herein that there has been a violation of any statute on the part of the county commissioners, in our opinion it has not been shown that they have been guilty of any negligence. This statute should receive a reasonably strict construction, for to impose upon the county the liability for a defect in any road would impose a tremendous liability regardless of the fact as to whether or not the board of county commissioners are actually negligent or not. If that is the law, it would require the county commissioners to devote a good deal of their time to patrolling the roads of the county to see that they were in proper repair.

Whether the doctrine of constructive notices would prevail or not, we are uncertain; that is, to hold the county liable on the ground that it had been out of repair for some time. There is no claim in this case that there was any actual notice to the commissioners of the condition of this road. The question is an important one, and one that should be settled by the Supreme Court. In the light that we now have and that we were able to gain, we are of the opinion that the action of the court of common pleas was correct and, therefore, the judgment of that court will be affirmed. There is no other claim of error in the record that need be especially discussed- The judgment will be affirmed.

Haynes and Parker, JJ., concur.