author: Speak, J.

text:
    Schroder v. Overman, Clerk etc., et al.

      Assessment for street improvement — By foot front upon abutting property — Suit to enjoin .collection — Question as to benefit to land in amount assessed — Levying ordinance by council — Council may not subdivide parcel of land into lots, for purposes of assessment, when.

    1. Where, in a suit brought to enjoin the collection of a street assessment as invalid, and the taking of property without due • process of law, it appears that the ordinance levying the assessment provided that the cost and expense of the improvement should be assessed upon the abutting property by the foot front, . and not otherwise, but it also appears that an issue was made by the pleadings on the question whether or not the land so assessed was in fact benefited by the improvement to an amount in excess of the cost so assessed, which issue is found by the trial court against the plaintiff, and it is neither shown nor claimed that the cost and expense was not apportioned fairly between the property of plaintiff affected by the assessment, and that of others so affected, the collection of such assessment should not be enjoined simply because the proceedings of the council in enacting the ordinance and levying the assessment do not show affirmatively that the question of benefit to the land was taken into consideration in levying such assessment.
    2. In providing for the cost and expense of such an improvement, abutting land not laid out into lots, when the depth from the street is ascertained, is to be treated as a parcel of land for the purposes of assessment, and it is not the duty of the council to subdivide it even though it may appear that the value of a portion of it, if assessed separately,' would be less than four times the amount of the assessment levied upon the same after the improvement is made.
    (Decided October 24, 1899.)
    Error, to the Circuit Court of Hamilton County.
    The action below was against the defendant in error, Overman, as clerk of the village of St. Bernard, and the auditor and treasurer of Hamilton county, to perpetually enjoin the collection of an assessment which -had been assessed by order of the village council upon plaintiff’s lands abutting upon Church street, in that village, for the improvement of that street by grading, draining and macadamizing the roadbed thereof.
    Among other things the petition averred that the resolution and ordinance to improve, and ordinance to assess for the improvement, provided arbitrarily that plaintiff and all other property holders owning property abutting on the street, should be assessed by the foot front and not otherwise, that said rule of assessment is contrary to law and the constitution of Ohio and of the United States in this, that it is an arbitrary assessment without in any way being levied in accordance with any benefit conferred by said improvement. Also that the improvement was not for any special benefit, nor of any benefit whatever, to the real estate owned by plaintiff, and abutting said improvement, but, on the contrary, was a detriment and damage to her abutting property, and that the assessment is the taking of her property without due process of law and to her great and irreparable injury. Also that the resolution and ordinance to improve provided that the assessment should extend only to the depth of one hundred and 'fifty feet back from the line of the street upon the lands which were not subdivided into lots, and that a portion of plaintiff’s land was; not subdivided into lots, but was land in bulk, and that the assessment was in excess of twenty-five percent. of the fair market value of said lands to the depth of one hundred and fifty feet after the improvement was made.
    The allegation that the action of the council in-reference to making the improvement provided that the same should be assessed by the foot front and the allegation that a portion of plaintiff’s abutting; lands was land in bulk, were admitted by the answer-All other allegations were denied.
    At the trial in the circuit court, to which the cause had been appealed, the issues were found for defendants, the assessment found to be a valid and subsisting lien against the premises, and the petition of the-plaintiff was ordered dismissed and judgment for-costs awarded. At request of plaintiff the court stated separately its findings of fact, and among other things, found that “the plaintiff was the owner-of property abutting on the north side of said Church street, having in all a frontage of 857.33 feet; that said frontage consists of lot No. 55, fronting 90 feet, on said street, and of land in bulk fronting 767.33 on: the north side of said Church street, and that said; land in bulk was assessed to the depth of 150 feet». «aid distance being the average depth of lots in the neighborhood. And the court further finds that the value of said lot No. 55 after said improvement was .made, was more than four times the amount of the ■assessment levied and assessed against said lot; and that the residue of said 857.33 feet front, after deducting therefrom 90 feet, the frontage of said lot 55, leaving a frontage on said improvement of 767.33 feet to a depth of 150 feet, was in one tract, of which •about 250 feet was considerably below the grade of .said street, and had a ravine through it and was used for pasturage purposes, and the court finds that if the said part of the premises of the plaintiff ¡should be assessed separately from the remainder of the tract on which the dwelling house is situated, that the value thereof would be less than four times the assessment levied upon the same, after said improvement was made. But the court further finds that the value of the whole of said tract, with a frontage of 767.33 for a depth of 150 feet, after the improvement was made, was much more than four times the amount of the assessment levied ¡against the spne, and that said tract of 767.33 feet in front, to a depth of 150 feet, is for the purposes ■of said assessment to be considered as a single and undivided tract. * * * The court finds that the improvement of said Church street is a benefit to plaintiff’s said property, and that the amount of the benefits to said property is more than the amount of said assessment against the same.”
    To reverse the judgment so rendered this proceeding in error was brought.

      Theodore Horstman, for plaintiff in error.

      Samuel B. Hammel and Rendigs, Foraker & Dinsmore, for defendants in error.
   Speak, J.

The preliminary statement presents, the question whether the proceedings relating to the-assessment were invalid (1) because the assessment against plaintiff’s lands was by the foot front;., or (2) because the improvement was not of any benefit to the lands, but rather a damage, and that,, therefore, the assessment was the taking of plaintiff’s property without due process of law; or (3)) because the assessment was in excess of twenty-five-per cent, of the fair market value of the plaintiff’s, lands to the depth of 150. feet after the improvement, was made.

1. As to the assessment by the foot front. It is. conceded that, should the court be governed by its-, previous decisions, notably Ernst v. Kunkle, 5 Ohio St., 520, Upington v. Oviatt, 24 Ohio St., 232, and Findlay v. Frey, 51 Ohio St., 390, the assessment could not be held invalid simply because it was undertaken to be made by the foot front. But the contention of plaintiff is that the case at bar is controlled by the recent decision of the supreme court of the United States in the case of Norwood v. Baker, 172 U. S., 269. And it may be conceded that, if the principle of the above case applies to the case made by the record in this case, the assessment would of necessity, be held invalid, and the judgment below reversed. We look, therefore, to the record of theNorwood case to see whether or not we have a like-case here.

The defendant in error in that case, Mrs. Baker,, owned land in the village of Norwood through which the village authorities opened a street by a proceeding in condemnation, and paid to her the. ascertained value of her land, assessed irrespective of benefit to her, viz.: $2,000. By proceedings by and before the-village council the cost and expense of the condemnation, including the compensation thus paid, cost of the condemnation proceedings, cost of advertising and all other costs, amounting in all to $2,-218.58, were assessed against the abutting property of Mrs. Baker, and the same was entered upon the tax duplicate and sent to the county treasurer for collection as a lien and charge against the abutting property so assessed. The ordinance provided that .such cost and expense of the condemnation of the property “should be assessed per foot front upon the property bounding and abutting.” This upon the supposed authority of section 2264, Revised Statutes, which provides * * * * “The council may decline to assess the cost and expenses in the last section mentioned, or any part thereof, or the costs and expenses of any part thereof of such improvement, except as hereinafter mentioned, on the general tax list, in which event such costs and expenses, or any part thereof, which may not be so assessed on the general tax list, shall be assessed by .the council on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in. proportion to the benefits which may result from the improvement, or according to the value of the property assessed, or by the foot front of the property bounding and abutting upon the improvement, as the council by ordinance setting forth specifically the lots and lands to be assessed may determine before the improvement is made, and in the manner and subject to the restrictions herein contained * * * * »

Mrs. Baker commenced a suit in equity in the circuit court of the United States for the southern district of Ohio to enjoin the collection of the assessment. A decree having been rendered in her favor in that court, the case was appealed to the supreme court. Her suit in both courts proceeded upon the ground that the assessment in question was in violation of the fourteenth amendment, providing that no State shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, as well as of the bill of rights of the constitution of Ohio. This contention was sustained, the court holding in the syllabus that “The principle underlying ■special assessments upon private property to meet the cost of public improvements is-that the property upon which they are imposed is peculiarly benefited, and, therefore the owners do not in fact pay anything in excess of what they receive by reason ■of such improvement. The exaction from the owner ■of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation. * * * * The constitution of Ohio authorizes the taking of private property for the purpose of making public roads, but requires a compensation to be made, therefor to the owner, to be assessed by a jury, without deduction for benefits. The statutes of the State * * * * make provision for the manner in which this power is to be exercised. In the case ■of the opening of a new road, they authorize a special •assessment on bounding and abutting property by the front foot for this entire cost and expense of the improvement, without taking the special benefits into account. The alleged improvement in this case was the construction through property of the appellee of a street 300 feet in length and 50 feet in width, to connect two streets of that width running from each end in opposite directions. In the proceedings in this case the corporation of Norwood manifestly went upon the theory that the abutting property could be made to bear the whole cost of the new road, whether it was benefited or not to the extent of such cost, and the assessment was made accordingly. This suit was brought to obtain a decree restraining the corporation from enforcing the assessment against the plaintiff’s abutting property, which decree was granted. Held, that the assessment was,, in itself, an illegal one, because it rested upon a basis that excluded any consideration of benefits. * *

It is important to note that the record no where shows that the question of benefits to the property assessed was considered by the council, and that there is an absence of any showing that the property was benefited, and it seems to be apparent from the foregoing, that the gist of the holding is that the proceeding of council, having been conducted upon a rule which excluded the consideration of the question of benefits, and placed the burden upon the land on a theory inconsistent with such consideration, the assessment is, therefore, an illegal one. This conclusion is further shown by the language of the majority opinion delivered by Mr. Justice Harlan. At page 278 these words: “But does the exclusion of benefits from the estimate of compensation to be made for the property actually taken for public use authorize the public to charge upon the abutting property the sum paid for it, together with the entire costs incurred in the condemnation proceedings, irrespective of the question whether the property was benefited by the opening of the street?” Again, at page 279 this language: “But the guaranties for the protection of private property would be seriously impaired, if it were established as a rule of constitutional law, that the imposition by the legislature upon particular private property of the entire cost of a public improvement, irrespective of any peculiar benefits accruing to the owner from such improvement, could not be questioned by him in the courts of the country. It is one thing for the legislature to prescribe it as a general rule that property abutting on a street opened by the public shall be deemed to have been specially benefited by such improvement, and therefore should specially contribute to the cost incurred by the public. It is quite a different thing to lay it down as an absolute rule that such property, whether it is in fact benefited or not by the opening of the street, may be assessed by the front foot for a fixed sum representing the whole cost of the improvement, and without any right in the property owner to show, when an assessment of that kind is to be made, that the sum so fixed is in excess of the benefits received. In our judgment the exaction from the owner of private property of the cost of a public improvement in substantial excess of the benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation.” And, at page 290, after referring to the provisions of section 2264, Revised Statutes, this: “It thus appears that the statute authorizes a special assessment upon the bounding and abutting property by the foot front for the entire cost and expense of the improvement, without taking special benefits into account. And that was the method pursued by the village of Norwood.' The corporation manifestly proceeded upon the theory that the abutting property could be made to bear the whole cost of the improvement, whether such property was benefited or not to the extent of such cost.” Also at page 294 this: “While abutting property may be specially assessed on account of the expense attending the opening of a public street in front of it, such assessment must be measured or limited by the special benefits accruing to it, that is, by benefits that are not shared by the general public; and that taxation of the abutting property for any substantial excess of such expense over benefits will, to the extent of such excess, be a taking of private property for public use without compensation.” Again, at page 293, referring to the decree of the circuit court, this language is found: “It should be observed that the decree did not relieve the abutting property from liability for such amount as could be properly assessed against it. Its legal effect, as we now adjudge, was only to prevent the enforcement of the particular assessment in question. It left the village, in its discretion, to take such steps as were within its power to take, either under existing statutes or under any authority that might thereafter be conferred upon it, to make a new assessment upon the plaintiff’s abutting property for so much of the expense of opening the street as was found on due and proper inquiry to be equal to the special benefits accruing to the property.” Mr. Justice Gray, Mr. Justice Shiras and Mr. Justice Brewer dissented from the judgment of the majority. The dissent seems to be based upon the proposition that the fixing of the limits of the taxing district is a legislative function, properly determinable by the council and that the determination is conclusive. In the dissenting opinion of Mr. Justice Brewer, at page 302, occurs this language: “The testimony is equally silent as to the matter of damages and benefits. There is not only no averment, but not even a suggestion, that any other property than that abutting on the proposed improvement and belonging to plaintiff, is in the slightest degree benefited thereby. Nor is there an averment or suggestion, that her property, thus improved by the opening of a street, has not been raised in value far above the cost of improvement. So that the legislative act charging the cost of improvement in laying out a street (and the same rule obtains if it was the grading, macadamizing or paving of the street), upon the property abutting thereon, is adjudged not only not conclusive that such property is benefited to the full cost thereof, but further that it is not even prima facie evidence thereof, and that before such an assessment can be sustained it must be shown, not simply that the legislative body has fixed the area of the taxing district, but also that, by suitable judicial inquiry, it has been established that such taxing district is benefited to the full amount of the cost of the improvement, and also that no other property is likewise benefited. The suggestion that such an assessment be declared void because the rule of assessment is erroneous, implies that it is prima facie erroneous to cast upon property abutting upon an improvement the cost thereof; that a legislative act casting upon such abutting property the full cost of an improvement, is prima facie void; that, being prima facie void, the owner of any property so abutting on the improvement may obtain a decree of a court of equity cancelling in toto the assessment without denying that his property is benefited by the improvement, or paying, or offering to pay, or •expressing a willingness to pay, any sum which may be a legitimate charge upon the property for the value of the benefit to it by such improvement.”

Enough has been given, we think, to make it clear that the ground of the relief granted to the land owner by the circuit court, sustained by the supreme court, was that there had been an assessment against her lands without regard being had to the-question whether or not the lands would be benefited by the improvement, the difference of opinion among the members of the Court seeming to be that,, while by the majority the action of the council, as. exhibited in the record, was considered as conclusively showing that no attempt had been made to. assess according to benefits, the minority held to the opinion that the action taken by the council impliedly shows that benefits were considered, and that at least the record establishes prima faciethat the assessment was legal. In either view it seems to us apparent that had the record shown affirmatively that the lands were benefited to an amount equal to the cost of the improvement so assessed, no injunction restraining the collection of' the assessment could properly have been allowed.

How is it with the case at bar? The record discloses that the question of benefits to the land assessed was made an issue, being tendered by the-plaintiff herself, and that, upon that issue, the finding of the trial court is distinct that “The improvement of Church street is a benefit to plaintiff’s said property, and that the amount of benefit to said property is more than the amount of said assessment against the same.” Perhaps this finding may be assumed to involve also the conclusion, inferentially,. that the cost and expense of the improvement, had been properly apportioned among the lots and lands benefited thereby. However, this latter suggestion may be unimportant in view of the fact that there is in the present case, no claim that the cost and expense of the improvement had not been apportioned fairly between the property of plaintiff affected by the assessment, and that of others so affected.

Undoubtedly, as has been held by this court again and again, the principle which permits the assessment of the cost of local improvements upon abutting and contiguous lands, is that such property re•ceives benefit beyond that common to the public at large, and the conclusion would naturally follow, and does follow, that such assessment can in no ■case, save by express consent of the owner, lawfully ■exceed such benefit. It follows, further, that any ■system which results in imposing such assessments without respect to benefits must be vicious and unsound. But we are dealing with a case where the ■court has determined, upon a trial, that the benefit in fact exceeds the amount of the assessment, and yet where the plaintiff asks the interposition of a court of equity to prevent the commission of an alleged wrong upon her property. We are of ■opinion that the Norwood case does not control the case at bar, and that the relief prayed for should not be granted simply because the proceedings of the council do not show affirmatively that the assessment was assessed according to benefits, nor that the subject of benefits was not, by that body, taken into consideration.

The questions involved are of high importance to many of the municipalities of the state, as the validity of a large number of assessments is likely to be affected by the disposition of the issues as they shall finally be determined. We, of course, bow cheerfully to the judgment of the supreme court ■of the United States, in all cases coming within its cognizance, but, at the same time, feel that it is our duty to follow the decisions of this court, except where they have been distinctly overruled by that court, or are clearly inconsistent with its holdings. A public duty will be performed by the submission of the issues in this case to that tribunal for its judgment thereon.

2. The foregoing sufficiently disposes of plaintiff’s second proposition and no further comment on that is needed.

3. Does the record show that the assessment was in excess of twenty-five per cent, of the fair market value of the lands to the depth of 150 feet after the improvement was made? The plaintiff owned a parcel of land fronting over 700 feet on the street. It was in one tract; land in bulk, in other words. A considerable part (some 250 feet of frontage) was below the grade of the street and had a ravine through it and was used for pasturage purposes. If that part should be assessed separately from the remainder of the tract on which the dwelling house is situated, the value would be less than four times the assessment for the improvement. But the value of the whole tract to a depth of 150 feet, after the improvement was made, was much more than four times the amount of the assessment.

The contention is that the council, and upon its neglect to do so, the court, should have divided the parcel thus standing in bulk, and that the court should grant relief by enjoining the assessment as to that portion which is in value less than four times, the amount of the assessment. There is plausibility-in the claim that the rule adopted reaches an unfair and inequitable result, and perhaps it is sufficiently-important to call for legislative action on the subject. But we are of opinion that the authorities giving construction to the statutes are against the claim as a legal proposition. Section 2269, Revised Statutes; Cincinnati v. Oliver, 31 Ohio St., 371; Griswold v. Pelton, 34 Ohio St., 482.

Other questions are argued. We have considered them but do not regard any as requiring a reversal of the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Minshall, J.

license: Public Domain

text:
    Walsh v. Barron, Treasurer.

      Assessment on property — For cost of local public improvements — Cannot exceed benefits accruing to property assessed — Inviolability of private property — Limitations of power of assessment — Taylor law and Section 2270 Revised Statutes.

    1. The fundamental principle underlying an assessment made on property for the cost and expense of a local public improvement is, that the property is specially benefited by the improvement beyond the benefits common to the public, and that a ratable assessment of the property to the extent of these benefits violates no constitutional right of the owner, and is just and proper. But it can in no case exceed the benefits without impairing the inviolability of private property.
    2. The amendment to the Taylor law by which the provision of section 2270, Revised Statutes, limiting assessments to 25 per cent of the value of the property as returned for taxation, is made not to apply to improvements under that law, can not be construed to confer an unlimited power of assessment on the municipality in proceedings under the law. The power is still subject to the general principle which underlies all assessments for local improvements; and when an assessment is made in substantial excess of the benefits, it must he set aside and held for naught, subject, however, to the right of the city to have a new assessment made on accurate principles.
    (Decided October 24, 1899.)
    Error to the Circuit Court of Franklin county.
    The action below was commenced by the treasurer of Franklin county for the collection of certain taxes and assessments that had been levied and made upon certain property of the defendant, John Walsh, which, had not been paid. Walsh filed an answer and cross petition to which a demurrer was sustained, and the case was then appealed by him to the circuit court after judgment on the demurrer. In this court the demurrer to, the answer and cross-petition was also sustained, and judgment rendered for the treasurer. The question in this case arises upon the sufficiency of this pleading, which reads as follows:
    “The defendant, John Walsh, for answer and cross-petition herein says:
    That the city of Columbus, a municipal corporation under the laws of Ohio, being a city of the first grade, second class, and Samuel B. Stone are necessary parties to the complete determination of the question involved in this action. Said defendant, John Walsh, is the owner in fee simple of lots No’s. 1 to 10 inclusive, of John Walsh’s subdivision of lot No. 25 in Solomon and George W. Beers’ subdivision of about 40 acres in quarter township 3, town 1, range 18, U. S. military lands as shown on the plat of record in plat book 5, at page 96 in the recorder’s office of Franklin county, Ohio, being the first ten parcels described in the petition herein, and he has a valid defense to plaintiff’s action as to those lots as hereinafter set forth.
    The said lots numbered from one to nine inclusive, are located on the south side of Dodridge street in said city of Columbus, and each lot abounds and abuts on said street 33 feet.
    On September 15, 1890, the council of said city of Columbus adopted a resolution that it was necessary t"o improve Dodridge street from High street to the west corporation line, by grading and constructing thereon an asphalt, stone block, Hayden block, fire clay or hard-burned brick pavement, and setting a five-inch curb of Berea and Fulton stone, and that said improvement be made under and according to an act of the General Assembly of the State of Ohio, passed May 11, 1886, entitled: “An act to provide for the improvement of streets, avenues and alleys in cities of the first grade of the second class,” commonly called the “Taylor law.” Said resolution was published in the mode provided by law.
    On November 17, 1890, said city "council passed an ordinance to provide for making said improvement of said street in the manner stated in said resolution, and for the issue of bonds to cover the cost and expense, and said cost and expense to be assessed, as provided in said act of the General Assembly, equally by the front foot on the property fronting or abutting on said improvement.
    Thereafter said city by its officers, contractors and employes did improve said street by grading and constructing thereon a Hayden block pavement and setting a five-inch curb, and after the completion of said work, on February 27, 1893, the council of said city passed an ordinance assessing the sum of five dollars and thirty-four cents and 3 and 1-10 mills upon each foot front of the several lots of land bounding or abutting upon said street and requiring that the same should be paid at the office of the treasurer of said Franklin county, Ohio, in fourteen equal annual installments with interest thereon, at 6 per cent, per annum, payable •semi-annually, and that the clerk certify said assessment to the treasurer for collection. By said ordinance the assessment on each of this defendant’s said lots numbered 1 to 9 inclusive is the sum of -1176.32.

      In addition to said assessment said city, at the same time, assessed upon each of said lots numbered 5 to 10 inclusive, the sum of $30 for a sewer constructed in subdistrict “I” in main sewer district No. 2.
    The several sums demanded in the petition as taxes and assessments on said lots are made up as follows:
    1. The sum of $7.44 on each lot as ordinary taxes for 1896 and tte penalty for non-payment thereof.
    2. The sum of $3.24 on each lot for ordinary taxes in 1897.
    3. The sum of $50.36 on each lot for four installments of said street assessment.
    4. The sum of $39.30 on each lot for interest to December 20, 1897, on said street assessment.
    5. The sum of $30.00 on each of said lots numbered from 5 to 10 inclusive for said sewer assessment.
    Said assessments are illegal and invalid for the reason that they exceed the value of said lots; and said respective lots could not have been sold at any time since or before said street improvement was ordered for the amount assessed upon them respectively on account thereof, and can not now be sold for the amount thereof; and they have been offered at tax sales by the treasurer and not sold because no one would pay the amount of taxes and of said assessments now due thereon for the same, and at the last sale of delinquent lands said lots were forfeited to the State of Ohio, and if said lots are now sold by order of the court in this case they will not bring the amount of taxes and assessments thereon, and this defendant will be deprived of his property for public uses without receiving any consideration therefor. This defendant did not petition for, promote or participate in the mating of said improvements or either of them.
    This defendant has offered to pay the ordinary taxes on said lots, and has paid on said street assessment an amount far in excess of what would be due had the same been limited to 25 per cent, of the value of said property, and said treasurer has always and does still refuse to receive ordinary taxes; on said lots unless this defendant will at the same time pay the said assessments.
    The said act of the General Assembly under which said street was improved and the act passed March 21, 1887, (81 Ohio Laws 176) providing that section-2270 revised statutes shall not apply to improvements made under said act of May 11,1886, are each unconstitutional in their operation and effect as applied to this defendant’s land and the improvement in question, because they operate to effect the confiscation of defendant’s property to pay for a public improvement as aforesaid, and violate article 1, section 19 of the constitution of Ohio.
    The defendant is without adequate remedy at law and will be irreparably injured and will lose his. property unless the court in the exercise of its equity-jurisdiction grants him relief.
    Wherefore said defendant prays that said assessments may be adjudged to be invalid and void and defendant’s said premises adjudged to be free from the lien thereof, and plaintiff’s petition be dismissed and for all other proper relief.
    Stone was made a party and answered. His pleading is substantially the same as to the lots in which he is interested, as that of Walsh, and need not be further noticed.

      C. T. Clark, for plaintiff in error.
    An assessment that charges upon one of the lots assessed a sum substantially in excess of the value of the special benefits to that lot is as to such lot and to the extent of such excess a taking of private property for public use without compensation and is a violation of article 1, section 19 of the constitution. Such an assessment is wholly void, no matter how regular the proceedings may have been in all respects except as to the amount assessed; and no presumption whatever can arise in its favor against the owner who has not participated in any way in causing the improvement to be made, but its collection will be enjoined on his petition therefor, because no power exists in the legslature to authorize or in the municipal authorities to make such an assessment. Chamberlain v. Cleveland, 34 Ohio St., 551; Norwood v. Baker, 172 U. S., 269.
    When notice is given of an intention to improve a street under the “Taylor Law,” or any other statute authorizing an assessement on abutting lots, for part or all of the costs, it is the privilege of the owner to remain silent, make no inquiry or protest, trusting that the municipal authorities will not exceed their constitutional powers, and if they do he is in time with his objection when they try to enforce an unconstitutional demand. Wright, Treas., v. Thomas, 26 Ohio St., 346; Columbus v. Agler, 44 Ohio St., 485.
    In the present case the allegation of the cross-petitions show that the council followed the directions of the statute literally. The Taylor Law requires the assessment to be made for the entire cost and expense upon the lots bounding and abutting on the improvement and equally by the front foot. No other mode of assessment is authorized by that statute. That statute and also the one subsequently enacted setting aside the 25 per cent, limitation have been held constitutional, 50 Ohio St., 460.
    But where exact compliance with the statute-works out an unconstitutional result it has an unconstitutional operation and effect which will never be-permitted. Bowles v. State, 37 Ohio St., 35.
    There can be no justification for any proceeding' which charges the land with an assessment greater than the, benefits. It is a clear case of appropriating private property to public use without compensation. Cooley on Taxation, 2nd Ed., p. 661; McCormack v. Patchin, 53 Mo., 36; Hammett v. Philadelphia, 65 Pa. St., 146.
    It seems, therefore, that the right of the municipality extends to the assessment of an amount equal to the special benefit, the power is limited to the exercise of that right, all exactions in excess are void for want of power. Cincinnati v. Batche, 52 Ohio St., 324; Cooley on Taxation, 606 (2nd. Ed.).

      Dyer & Williams and Crum, Irvine & Pretzman, for defendants in error.
    Plaintiffs in error claim that the assessment levied upon their property was in excess of the benefits derived from the improvement, and for that reason the assessment is void.
    The authorities all agree that the foundation for' special assessments for local improvements is based upon a presumed equivalent in the form of benefits. If there is any disagreement of the authorities upon the questions in this case, it is as to what tribunal shall determine the amount of benefits any particular tract of land receives from a particular improvement.

      In this State special assessments are authorized to be made in three ways: First, according to benefits; second, according to valuation; and, tldrd, by the front foot.
    The plan of assessment by the front foot is held by the supreme court of Ohio to be constitutional and lawful. Railway Co. v. Connelly, 10 Ohio St., 160; Upington v. Oviatt, Treas., et al., 24 Ohio St., 232; Findlay v. Frey, 51 Ohio St., 402; Cincinnati v. Batche et al., 52 Ohio St., 325.
    The assessment, by whatever plan it is levied, must “be uniform. Jaeger v. Burr, 36 Ohio St., 164.
    It is not possible in making special assessments to preserve “uniformity” and at the same time arrive at the actual benefits conferred.
    The- rule of Cooley on Taxation (2d. ed.) 640, has always been the law in Ohio. When the legislature, or the municipal council to whom the legislature has delegated its authority, orders or determines that the cost of a local improvement shall be assessed by the front foot upon the property fronting and abutting thereon, that determination constitutes the judgment of the legislature or council that the property upon which the assessment is directed to be levied is specially benefited to the extent of the assessment to be levied. Such action or determination by the legislature, or council is final and will not be reviewed. Crawford v. Cincinnati et al., 11 Dec. Re., 378; Cincinnati v. Batche et al., 52 Ohio St., 325; Chamberlain v. Cleveland, 34 Ohio St., 552.
    The state and federal courts have always adhered to this rule, and still adhere to it, unless under such peculiar state of facts as existed in the case of the village of Norwood v. Baker, 172 U. S., 269; a different rule was adopted. That was an extreme case.
    We say that the rules laid down in the Norwood case do not apply to improvements like the one in the case at bar under a particular act of the legislature providing for the same.
    Such assessments have been held to be lawful by the supreme court of the United States in cases which the court in the Norwood case expressly decline to overrule. Spencer v. Merchant, 125 U. S., 345; Williams v. Eggleston, 170 U. S., 340; Parsons v. The District of Columbia, 170 U. S., 45.
    The question involved in the case of Norwood v. Baker was essentially one of eminent domain. The question involved in the case at bar is one of taxation. The difference between these two is pointed out in Scovil v. Cleveland, 1 Ohio St., 126, upon the authority of which the circuit court relied, in part, in sustaining the judgment of the court of common pleas.
    The case of Norwood v. Baker was considered by this court in Hutchinson v. The City of Columbus, recently decided (60 Ohio St., 584, unreported). The court must have concluded that it did not apply to a case like the one at bar, otherwise the judgment must have been for the plaintiff in error instead of the defendant in error.
   Minshall, J.

The question in this case relates to the validity of an assessment made upon property for the cost of an improvement. From the averments of his answer and cross-petition it appears that the assessment made upon each lot of Walsh is in excess of its entire value. That each lot would not before, or since, the improvement, have sold for enough to pay the assessment upon it. That they have, in fact, been offered and returned not sold and forfeited to the State. He in no way promoted the proceeding and is not, therefore, precluded from making the question as to the validity of the assessment.

Upon the admitted averments of the pleading the naked question here presented is, whether an assessment may be made upon the property of an owner for the cost of a public improvement, that is not only in excess of the benefits conferred on it, but of its-value with the benefits added by the improvement. We do not think this can be done where the party complaining in no way promoted the improvement. By no refinement of reasoning can it be construed to be anything else than the taking of private property for public use without compensation. According to the best considered of the modern cases and the most reliable authorities, an assessment, being sustainable only on the theory of special benefits conferred on the land by the improvement over those received by the general public, is necessarily limited to the value of the benefits so conferred. The value of the entire benefits so conferred may be assessed upon the land for the cost of the improvement; more,, however, cannot be exacted, without impairing the inviolabiilty of private property, guaranteed by the constitution, or in other, if not more appropriate words, confiscating it.

In a recent case decided by the supreme court of the United States, Norwood v. Baker, 172 U. S., 269, 279, it said in the opinion: “The exaction from the owner of private property of the cost of a public improvement in substantial excess of the benefits accruing to him is, to the extent of such excess, a taking under the guise of taxation, of private property for public use without compensation. We say “substantial excess,” because exact equality of taxation is not always attainable, and for that reason the excess of cost over specific benefits, unless it be of a material character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforcement of a special assessment.”' Judge Dillon, after referring to the earlier cases which generally concede to the legislature the-power to determine what property is benefited and the extent to which it might be assessed, and hold that the courts have no control over the discretion of the legislature in this regard, says: “But since the-period when express provisions have been made in many of the St,ate constitutions, requiring uniformity and equality of taxation, several courts of great respectability, either by force of this requirement or in the spirit of it, and perceiving that special ienefits actually received by each parcel of contributing property, was the only principle on which such assessments can justly rest, and that any other rule is unequal, oppressive, and arbitrary, have denied the unlimited scope of legislative discretion and power, and asserted what must on principle be regarded as the just and reasonable doctrine, that the cost of a local improvement can be assessed upon particular property only to the extent that it is specially benefited; and since the excess beyond that is a benefit to the municipality at large, it must be borne by the general treasury.” The cases are cited in the note of the learned author. See, also, Cooley on Taxation, (2d ed.) 661. Chamberlain v. Cleveland, 34 Ohio St., 557.

No one of the states has, by its constitution, more carefully guarded the powers of taxation and assessment than Ohio. Indeed there is in our constitution a special mandate to the legislature to restrict these powers as conferred on municipalities so as to prevent their abuse. Article 13, section 6.

The improvement.in this case was made under what is known as the Taylor law, applicable only to cities of the grade of the class to which Columbus belongs. There existed at the time a general provision, section 2270, Revised Statutes, which limited assessments made by cities of the grade of Columbus to 25 per cent, of the value of the property as returned for taxation. By an amendment made shortly after the adoption of the Taylor law, it was enacted that this section, limiting assessments, should not apply to improvements made under that law. The law with the amendment was held valid in Parsons v. Columbus, 50 Ohio St., 460. Had the application of section 2270 to the Taylor law not been removed, the question presented in this case could hardly have arisen, or would have been of such a shadowy character as to be beyond judicial cognizance. Whether it was wise in the legislature to have removed the application of this section to the Taylor law, is ho part of our duty to consider. We will not, however, presume that the legislature intended to adopt an invalid law, and will give it such a construction as will support it, if that can reasonably be done consistently with its provisions. It is fair to presume that in removing the limitation of this section, it was not the intention of the legislature to permit the city to disregard the fundamental principle which limits an assessment for benefits to the extent of the benefits conferred by the improvement on the land. There is no provision of the law which would indicate this. It must, therefore, be held that all assessments under this law must be limited to the benefits conferred, or, it must follow that the legislature designed a palpable invasion of the rights of private property, which is not admissable. In other words, in authorizing an assessment to pay for improvements under the law, the legislature had special reference to such assessments as would be no more than the proper proportion of the costs based on the benefits received.

The judgment must be reversed and cause remanded for further proceeding. And here it is proper to say, that if the facts stated in the pleading of Walsh are found to be true, the city is entitled to have a sum assessed upon each lot substantially equivalent to the special benefits conferred on it by the improvement, unless such sum has already been paid. In ascertaining this sum, the special benefits conferred on each lot as distinguished from those common to the public, are alone to be considered.

Judgment reversed.


author: Williams, J.

text:
    Birdseye et al. v. The Village of Clyde et al.

      Assessments for local improvements — Limitations upon — Revised Statutes, 2270 — Act of February 1,1893 construed — Petitioner not estopped to enjoin assessment, when.

    1. It is the general policy of our legislation to restrain the power of local assessment by fixing a limit on the amount that may be levied beyond which municipal corporations may not go; and unless the contrary clearly appears, an intention to adhere to that policy in the enactment of particular statutes relating to local assessments, will be presumed, and a construction given to them, if possible, allowing the application of the general limitations.
    2. The provision of Section 2270, Revised Statutes, which forbids the levy by incorporated villages of any assessment on any lot or land for any improvement in excess of 25 per centum of the value of the property as assessed for taxation, is applicable to assessments for improvements made under the act of February 1, 1893 (90 O. L. L., 434); and the excess of any such assessment may be enjoined at the suit of the owner of the property upon which it is laid.
    '3. The owner is not estopped to maintain such an action by having acquiesced in the construction of the improvement, nor by petitioning therefor and thereby consenting to the raising of a certain proportion of its cost by assessment on all abutting property. By such acts he binds his property for the payment of its proper share of a legal assessment for the cost of the improvement, but no further.
    (Decided October 24, 1899.)
    Error to the Circuit Court of Sandusky county.
    A sufficient statement of the case appears in the opinion.

      Richards, Heffner & Parkhurst and M. W. Hunt, for plaintiffs in error.
    It cannot be assumed that the legislature intended in this act (90, O. L. L. 434.) to reverse the policy of the State and to give despotic power to any village which had a population of “not less than 2320 nor more than 2350.”
    A more reasonable intendment is that those matters not specially provided for by the act, were to be regulated by the general laws of the State, to-wit, by chapter 4, of division 7 of the Revised Statutes. City of Cincinnati v. Connor, 55 Ohio St., 82.
    The above case is especially pertinent on another’ point also, namely, that in construing a statute imposing taxes, the statute must be strictly interpreted,, and doubts resolved in favor of the citizen.
    Indeed, R. S. 2327 provides that proceedings shall be strictly construed in favor of the owner of the property assessed, as to the limitations on assessment of private property.
    We think it plain that the council could not assess more than the amount limited by statute. Kreling v Muller, 86 Cal., 465; Cincinnati v. Shaw, 3 Law Bul., 556; Strauss v. Cincinnati, 23 Law Bul., 359; 10 Dec. (R. E.) 783; Hunt v. Hunter, 11 O. C. C., 69; 5 Circ. Dec. 89.
    The fact that some of the plaintiffs petitioned for-the improvement, requesting that two-thirds of the cost be assessed upon the abutting property does not estop them from insisting upon the assessment being limited to 25 per cent, of the assessed value of their respective lots.
    They had the right to expect that the amount of the assessment would be limited by the statute. Tone v. Columbus, 39 Ohio St., 281; our case is precisely like the 22 Mich., 104; New Brunswick Rubber Co. v. Commissioners, 9 Vroom, 190; Storer v. City of Cincinnati, 4 O. C. C., 279; 2 Circ. Dec. 546. Affirmed without report by this court. 24 Law Bul., 371; 6 Circ. Dec. 738; Baker v. Schott, Treas., 10 O. C. C., 81.
    The petition in that case is printed in 31 Law Bui. 335, and contained an express assent to an assessment for the cost of the improvement, and yet the circuit court held, and properly, we say, that there was no estoppel against having the benefit of the 25 per cent, limitation. In the Matter of Petition of Sharp, 56 N. Y., 257.

      J. C. Craig, Solicitor; J. D. Finch and Homer Metsgar, for defendants in error.
    That the improvement made was provided for by a statute other than the general ones, and the special act having provided how work done under it shall be paid for, it must be followed.
    So it is clear that this work was not done under the general statutes, but was done under the special act, which act fully provides how work done pursuant to it shall be paid for.
    No one questions the constitutionality of the act or desires it to be questioned for reasons not necessary to be herein stated; and besides, the parties plaintiff having invoked the action of the village council under it, or having in silence taken its benefits, knowing the assessment therefor was to be made as it was made, these parties are estopped to question the validity of the act.
    Having invoked the action of the village council under the special act, its provisions must be enforced. Birdseye v. Clyde, Ohio Legal News, March 14, 1898; 8 C. C. Decisions, 66.
    It is urged that while the special act provides for assessing, it also provides that it shall be done according to the laws of Ohio.
    This provision refers only to the manner of assessing and not to the amount. The amount is fixed by the special act, which is itself one of the laws of Ohio, especially applicable so far as it goes.
    There are other matters to be considered in making assessments aside from the amount, and in considering such as were not provided for in the special act the village is referred to the general statutes by this special act. 2 Story Eq. Jur., section 1546.
    Even had the work been done under the general statutes the limitation provided for in Rev. Stat. 2270, is for the land owner’s benefit and he certainly had a right to waive it. 6 Waite’s Actions and Defenses p. 714; Corry v. Gaynor, 22 Ohio St., 594; Steckert v. East Saginaw, 22 Mich., 104.
    But when a different apportionment is requested or consented .to by word or action a different rule prevails. Here the proposition to improve had been before the public in the newspapers until everybody understood it, and then with this full understanding these property holders actually ask in their petition to council-to have two-thirds of the cost assessed against their property, and to such assessment they expressly agreed.
    Merely petitioning for it with knowledge that the cost was to be so assessed would work the estoppel, do say nothing of actually asking that it be so assessed. Storer v. Cincinnati, 4 C. C., 279, 2 Circ. Dec. 546; Tone v. Columbus, 39 Ohio St., 281.
    It is the voluntary waiver of the 25 per cent, limit and not the petitioning for an improvement which works the estoppel.
    Those of the plaintiffs who did not sign this petition are equally estopped under authority of Tone v. Columbus, 39 Ohio St., 281, as well as Columbus ner prescribed by the general statutes for making assessments by that method beyond what the words “by the foot front” fairly import, which is, that the assessment is to be apportioned according to the v. Alger, 44 Ohio St., 485.
    If the circuit court was right in holding that the special act must control, Birdseyes are bound by its terms, for they knew that whatever assessment was to be made was by virtue of it, and that it contained no limitation as to the assessment. Storer v. Cincinnati, 4 C. C., 279; State ex rel. v. Mitchell, 31 Ohio St., 592; Columbus v. Sohl, 44 Ohio St., 480.
    The requisites of estoppel by silence under the authority of Tone v. Columbus, are all here.
    1. Knowledge that the improvement was being-made.
    2. That it was intended to assess the cost (and in this case two-thirds of the cost) upon his property.
    3. That the defect in the proceedings which he is to be estopped to assert was sure to exist.
    4. That special benefit accrued to his property by the improvement.
    1. These parties saw the improvement made.
    2. They knew by the newspapers, as well as by the petition which they were asked to sign, that the proposition was to assess them for two-thirds of the cost.
    3. They were bound to know that the law provided a limit of twenty-five per cent., Tone v. Columbus, and that a proceeding seeking to assess more was defective, but for the provisions of the special act.
    4. And they were benefited specially by reason of their property abutting this improvement.
    See also Kellogg v. Ely, 15 Ohio St., 64.
    In that case inaction was the sole ground of estoppel.
    The party could have enjoined the work.
    See also directly in point: 54 Ohio St., 257; 24 N. J. Eq., 201; 25 N. J. Eq., 295; 21 N. J. Eq., 283; 29 Ohio St., 500; 19 N. J., 376.
    The village authorities are the agents of the land owners, and the land owners are bound by their acts and by their omissions in the performance of the work: 7 Ohio St., 327; Bul. June 1, 1896, p. 318.
    The burden of proof is not upon the defendant village to show a valid assessment. Spangler v. Cleveland, 43 Ohio St., 526.
    Plaintiff having participated in securing improvement and expenditure of money, and having obtained the benefits resulting therefrom are estopped to deny the assessment. Mott v. Hubbard, Treas., 59 Ohio St., 199; McFarland v. Auditor, 5 N. P., 123; 5 Dec., 452; Cincinnati v. Manss, 54 Ohio St., 257; Doppes et al. v. Cincinnati, 16 O. C. C., 183, 8 Circ. Dec., 786.
   Williams, J.

The council of the village of Clyde, on the 8th day of March, 1893, adopted a resolution declaring that it was necessary to improve, by sewering, grading, curbing, and paving with brick, a designated portion of Main street in that village, and, that one-third of the cost should be paid by general tax, and the remainder assessed according to the foot frontage against the lots and lands abutting on that part of the street to be so improved. Prior to the adoption of the resolution a majority of the owners of the property which abutted on the proposed improvement signed and presented to the council the following petition:

“To the Village Council:
“The undersigned, a majority of the owners of the property abutting on Main street, between Elm street and the Western Reserve and Maumee turnpike do hereby petition your body for the improvement of said street between said points, and request the passage of the necessary ordinance, assessing the cost thereof as follows: one-third to be assessed upon the general tax list, and two-thirds upon the abutting property in proportion to the feet' front; to which assessment we do hereby agree. The improvement desired, consists of sewering and con-' structing the necessary culverts or drains, grading, paving and setting curb and gutter stones.”

After making due publication of the resolution, the council proceeded to- pass the necessary ordinance, and to let the contract, for the construction of the improvement; and, after its completion, assessed two-thirds of its cost upon the abutting property, according to the foot frontage, and ordered the assessment to be certified to the county auditor for levy. The assessment so made, on each of a number of the abutting lots, exceeds twenty-five per' centum of their valuation on the duplicate for taxation, and, in several instances, is in excess of the entire taxable valuation of the lot. The owners of some of these lots brought the action below to enjoin the excess of the assessment over twenty-five per centum of the taxable valuation of their lots, and obtained a decree in the common pleas court to that effect; but in the circuit court, where the cause was tried on appeal, the judgment was against the plaintiffs who are seeking its reversal here.

Authority for making the assessment in excess of twenty-five per centum of the taxable valuation of the abutting lots is claimed under the act of February 1, 1893 (90 O. L. L., 434), by which any village having at the last federal census a population between 2,320 and 2,350, is authorized to improve its streets and construct sewers. The proceedings here involved were had under that act, which is applicable to the village of Clyde,, and probably to that village only; and the contention is, that as the act makes particular provision for such proceedings by the particular class of corporations to which it applies, its effect is to exclude any limitation imposed by general statute with respect to the amount of the assessment that may be laid on abutting property, and itself attaches no limitation, except that the total assessment shall not exceed two-thirds of the cost of the improvement. Whether such is the operation of the act, which appears to have been the view taken of it by the circuit court, becomes an important inqfiiry in the case. It purports to confer on villages of the designated class, power to borrow money for the purpose of improving and paving their streets, and constructing sewers therein, and provides that, “two-thirds of the cost for improving and paving any street and constructing a sewer under such paved part, for which said street improvement fund shall be used, shall be assessed on the real estate bounding and abutting thereon, and according to the foot frontage of the real estate so bounding and abutting as provided by the laws of the State of Ohio.” It is not doubted that by the last clause above quoted, some of the provisions of the general statutes of the state relating to assessments by villages for local improvements are, by that reference,, incorporated into and become part of the special act,, and were intended to operate upon and govern assessments under the act. It is urged, however, that the reference is only to those provisions which prescribe the manner of making assessments by the front foot. But, there seems to be no particular manner prescribed by the general statutes for making-assessments by that method beyond what the-words “by the foot front” fairly imports, which is that the assessment is to be apportioned according; to the number of the feet front subject to the assessment, and, that manner is as certainly described in. the same language in the special act; so that, any reference to the general statutes for that purpose1 was not only unnecessary, but without any significance. The reference, we think, is rather to those-general provisions of the laws of the state-relating to local assessments in regard to' which the special act is silent, including, no-doubt, those providing for .the adoption of the-necessary resolution, and the improvement and. assessing ordinances, though these steps belong to-the mode of procedure for the accomplishment of the-improvement, and are required to- be taken, whatever method of assessment may be resorted to for the payment of the improvement. But while the-general provisions- alluded to are included in the reference in the special act, it by no means follows that others are not also. The language is broad enough to comprehend all general statutory regulations governing the making of assessments by incorporated villages on abutting property. Among ¡such general regulations in force when the special act was passed, and when the proceedings in question were had under it, is that contained in section 2270, of the Revised Statutes, which forbids the levy ¡by municipal corporations of the class to which the village of Clyde belongs, of any tax or assessment upon any lot or land for any improvement, in excess <of twenty-five per centum of the value of the property as assessed for taxation. From this and other similar statutory provisions, it appears to be a general policy of our legislation to restrain the power .of local assessment, by fixing a limit on the amount. that may be levied, beyond which municipal corporations may not go. The policy is a salutary one, established for the purpose of affording protection against unreasonable public burdens, and it is not to be presumed that, in the enactment of subsequent legislation on the subject of assessments, there was any intention to abandon it; naturally, the presumption would be, that the intention was to adhere to the policy, unless the contrary be clearly shown. In giving construction to- this special act, it should, therefore, if possible, be brought into harmony with section 2270 of the general statutes, and effect be given to the provisions of both. This, we think, may be done. If it had been intended by the former, to authorize assessments to be laid on abutting lots without limit upon the amount, the latter easily could, and no doubt would have been excepted from the provisions of the general laws of the state expressly made applicable to assessments under the special act. This was not done; and there appears to be no controlling necessity requiring the interpolation of the exception, by construction, nor such irreconcilable conflict between the two statutes, that both; may not operate together. While the special act' fixes the proportion of the improvement fund that may be raised by assessment, it is silent as to the amount, that may be laid on the specific lots and lands which, abut on the improvement; and in that respect the assessment is governed by section 2270, and subject to the limitation it imposes. The rules of interpretation in such cases, and some of the reasons therefor, are set forth in the opinion in Cincinnati v. Connor, 55 Ohio St., 82, and need not be repeated here. Much of what is there said is applicable here.

The further claim is made, in support of the judgment below, that the plaintiffs are estopped from contesting the assessments against their property because, with knowledge that the improvement was; under construction, they suffered it to proceed to1 completion without objection; or, if all of the plaintiffs not so estopped, those of them are estopped who-signed the petition that was presented to the council requesting the improvement to be made. The record shows that all of the plaintiffs knew of the progress of the improvement, and made no objection to its construction, or to. any of the proceedings under which it was constructed. This acquiescence on their part would be sufficient to estop them from attacking the validity of those proceedings. But they had! no knowledge of the amount of the assessment charged against their lots, and could have none, until the assessing ordinance was passed; and they promptly interposed with their injunction as soon as; they learned the assessment exceeded twenty-fiveper centum of the taxable valuation of their lots. Silence., or assent to the making of the improvement, could not operate as an estoppel to challenge the correctness of the assessment, for until the plaintiffs had [knowledge of the assessment it was their right to assume that it would be made in conformity with the law, and not in violation of the positive prohibitive provisions of the statute. To hold otherwise, would require them, not only to take notice at their peril of the illegal action of the public authorities, but to anticipate that in their official action they would disregard their legal duties. Their silence or acquiescence bound them no further than to submission to a proper assessment against their property, legally imposed. And, it can hardly be supposed that the plaintiffs who> signed the petition for the improvement intended thereby to donate their entire property to the public, or, what is practically the same thing, consent to an assessment that would amount to its confiscation. They evidently contemplated that some special benefit would accrue to them from the construction of the improvement, which could not possibly be the case if the substantial value of their property were taken to pay the assessment laid upon it. The petition must be construed in the light of this situation, and so as to effectuate the manifest intention of the parties. Some other questions are argued in the case, but they do not seem to be material. We express no opinion upon the constitutionality of the special act, for that is unnecessary to the decision of the case. The plaintiffs consent that the assessments. made .against their respective lots shall stand to an amount equal to one-quarter of their taxable valuation, and they are entitled to an injunction restraining the collection of the excess. Such judgment may be entered here in connection with the reversal of the judgment below.

Judgment accordingly.


author: Shauk, J.

text:
    The State of Ohio v. Liffring.

      Osteopathy — Not an agency within meaning of act of February 27, 1896 — Regulation of practice of medicine.

    The “system of rubbing and kneading the body commonly known as osteopathy” is not an “agency” within the meaning of the act of February 27, 1896, “to regulate the practice of medicine” (92 O. L., 44), which forbids the prescribing of any “drug or. medicine or'other agency” for the treatment of disease by a person who has not obtained from the board of medical registration and examination a certificate of qualification.
    (Decided October 24, 1899.)
    Exception to the ruling of the Common Pleas Court of Lucas county.
    In the court of common pleas the following indictment was returned against Liffring:
    The State of Ohio, Lucas County, ss.:
    Court of common pleas of the September term in the year of our Lord, one thousand, eight hundred and ninety-eight, the jurors of the grand jury of the State of Ohio, within and for the body of the county aforesaid, on their oaths, in the name and by the authority of the State of Ohio, do find and present that William J. Liffring, late of the county aforesaid, on the 20th day of September, in the year of our Lord, one thousand, eight hundred and ninety-eight, at the county aforesaid, did knowingly, wilfully, and unlawfully practice medicine in the State of Ohio without having first complied with the provisions of the act of the General Assembly of the State of Ohio, entitled: “An Act to Regulate the Practice of Medicine in the State of Ohio,” passed February 27, 1896, in this, that at the time and place aforesaid, he, the said William J. Liffring, did for a fee, to-wit: the sum of two and 50-100 dollars, prescribe, direct and recommend for the use of one Carey B. McClelland, a certain agency, to-wit: a system of rubbing and kneading the body commonly known as osteopathy, for the treatment, cure and relief of a certain bodily infirmity or disease, the name and nature whereof is unknown toi the grand jury. He, the said William J. Liffring, at the time aforesaid, not having left for record with the probate judge of that county, Lucas, a certificate from the State Board of Medical Registration and Examination of the State of Ohio, entitling him to practice medicine or surgery within the State of Ohio, as required by the act aforesaid, and he, the said William J. Liffring, at the time aforesaid, not being entitled under the act aforesaid, or the law of Ohio, to practice medicine and surgery, or either medicine or surgery, within the State of Ohio; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.
    A demurrer was filed to this indictment, which, upon hearing, was sustained. To the ruling of the common pleas court in that respect an exception was taken. The case is brought here upon exception tO' obtain a decision of this court for the government of future cases.

      F. S. Monnett, Attorney General, Charles G. Sumner and R. E. Westfall, Associate Counsel for the State, for plaintiff.
    The object of all interpretations and construe-, tions of statutes is to ascertain the meaning and intention of the legislature to the end that the same may be enforced. U. S. v. Wiltberger, 5 Wheat, 76; U. S. v. Hartwell, 6 Wall, 385; U. S. v. Winn, 3 Sumner, 209; Ogden v. Strong, 2 Paine, 584; Smith v. People, 47 N. Y., 330; Koch v. Bridges, 45 Miss., 247; State v. Scarborough 110 N. Car., 232; State v. Stephenson, 2 Bail. (S. Car.), 334; Am. & Eng. Ency. of Law (1st Ed.) Vol. 23, p. 319; People v. Lacomb, 99 N. Y., 43; Commonwealth v. Kimball, 24 Pick. (Mass.), 370.
    The first and most elementary rule of construction is that it is to be assumed that words and phrases are used in their popular and common acceptation, unless the subject matter indicates that they are used in a technical sense. Woodworth v. State, 26 Ohio St., 196.
    Where to construe the words of a statute technically would render it inoperative, but to construe-them according to their popular signification, would give it a reasonable operation, the latter construction must prevail. Robinson v. Varnell, 16 Texas, 382; Reg. v. Pembridge, 3 Q. B., 901; Penna. Co. v. Pittsburgh, 104 Pa. St., 522.
    Every statute is to be construed with reference to its intended scope and the purpose of the legislature in enacting it; and where the language used is ambiguous or admits of more than one meaning,, it is to be taken in such a sense as will conform to the scope of the act and carry out the purpose of the statute. Baker v. Terrel, 8 Monn. 195; Henry v. Thomas, 119 Mass., 583.
    Where the intent of the legislature and the object and purpose of the law are plainly apparent,, and such manifest intent and purpose are not inconsistent with, or outside the terms of the law, it is not allowable to permit the intent and purpose to-be defeated merely because not defined and declared in the most complete and accurate language. State v. Wheatly, 55 N. W., 511; Croker v. Crane, 21 Wendling, 211; Maxwell on Interpretation (2nd. Ed.), 305; Burt v. Rattle, 31 Ohio St., 116.
    The words of a statute are to be construed with reference to its subject matter. If they are susceptible of several meanings that one is to be adopted which best accords with the subject to which the statute relates. Rupp v. Livineford, 40 Wis., 28; Smith v. Helmer, 7 Barb., 416; Comm. v. Council, 52 Pa. St., 391; Wyman v. Tabens, 111 Mass., 77.

    From the argument of counsel for defendant in error in the court below, we take it for granted that the points to be made for the defense, will be, first, that the words “or other agency” occurring in the part of section 4403/ above quoted, cannot be construed or interpreted as to have a more comprehensive significance than that of the words “drugs” and “medicine” preceding them, and that medicine is synonymous with drug, meaning an animal or mineral substance, hence the meaning of the word “agency” must be restricted so as to signify something of the same kind or class as that to which drugs belong. Second, that the facts as stated in the indictment, to-wit: “The system of rubbing and kneading the body, commonly known as osteopathy,” do not constitute the practice of medicine.
    We claim that the word medicine has a wider significance than has the word drug. A Treatise on the Principles and Practice of Medicine, by Austin Flint (Edition 1881), p. 17; A System of Medicine, by H. R. Arndt, Vol. 1, p. 17 (1885).
    From a copy of “The Ohio Osteopath,” Yol. 1, No. 1, published by the faculty of the Ohio Institute of Osteopathy, and devoted to the science of Osteopathy, on page 7, we have the information that a list of fifty diseases, beginning with “appendicitis” and proceeding alphabetically to “varicose veins/7 is successfully treated by osteopathy.
    We submit, without referring to other sections of this act for the purpose of ascertaining therefrom the legislative intent as to the scope and purpose of the act, it can be safely contended that it would be a strained and unwarranted application of the rule of ejusdem generis, which would restrict the .meaning of “agency" as it appears in section 4403† to a class or kind represented by drugs or chemicals administered or applied to the body.
    The evident purpose of the law was to guard and protect the public from being imposed upon by empirics and quacks without knowledge or skill fitting them to undertake the important responsibilities which are necessarily involved upon physicians of whose fitness for their discharge, the general public are unable to judge. State v. Goldman, 44 Texas, 104.
    It is a well established principle that even the rule requiring the strict construction of a penal statute, as against the prisoner, is not vitiated by giving every word of the statute its full meaning, unless restrained by the context. Woodworth v. State, 26 Ohio St., 195.
    The intention of the law makers must govern in the construction of penal, as well as other'statutes, though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. U. S, v. Wiltberger, 5 Wheat, 95.
    The admitted rule that penal statutes are to be strictly construed is not violated by allowing their full meaning, or even the more extended of two meanings, where such construction best harmonizes with the context and most fully promotes the policy and objects of the legislature. U. S. v. Hartwell, 6 Wallace, 385; U. S. v. Winn, 3 Sumner, 211.
    It is a familiar rule that that which is within the-spirit of a statute, though not within the letter, may sometimes be declared to be within the statute even-in criminal cases. U. S. v. Morrissey, 32 Fed. Reporter, 147.
    This rule, ejusdem generis, can only be used as-an aid in determining legislative intent, and not for-the purpose of controlling the intention of confirming the operation of a statute within narrower limits,, than were intended by the law makers. Sutherland Stat. Cons., p. 279, 449; Willis v. Mahon, 43 Minn., 140.
    Were the words “drug” and “medicine” as they appear in section 4403/' regarded as synonyms, they would completely and fully describe the class or-kind, and leave nothing to be signified or expressed-by the word “agency.”
    It is not to be presumed that the legislature would-add to the terms of its enactment, words which-could have no value or significance. Ellis v. Murray, 28 Miss., 129.
    It is not necessary for any strained or unusual-definition to be given to the word “agency” to support the contention of the plaintiff in error. It is only necessary that the word be given its commonly-accepted meaning.
    The professional services of a medical clairvoyant-are medical services within the meaning of the act providing that “No person except a physician or surgeon, who commenced prior to February 16, 1831, or has received a medical degree of a public medical institute in the United States, or a license from the-Maine Med. Assoc., shall recover any compensation for medical or surgical services, unless previous to-.such services, he had obtained a certificate of good moral character from the principal officers of the town where he then resides. Bibber v. Simpson, 59 Maine, 181; Eastman v. People, 71 Ill., App., 236; State v. Buswell, 58 N. W., 728; Davidson v. Bohlman, 37 Mo., App., 576; Hewitt v. Charter, 16 Pick. (Mass.), 359; Benham v. State, 116 Indiana, 112.
    I. N. Huntsberger; Foraker, Outcalt, Granger & Prior and Wilby & Wald, for defendants.
    Penal statutes must be construed strictly as against the accused but liberally in his favor, and they cannot be extended by implications to cases not falling within their terms. Hall v. State, 20 Ohio 7; Denbow v. State, 18 Ohio, 11; Schultz v. Cambridge, 38 Ohio St., 659; Eastman v. State, 4 O. N. P., 163; 6 O. D., 296. Sutherland Stat. Con., Sec. 208, 349, 350. 23 Am. & Eng. Enc. L., 375.
    The case must be a very strong one indeed which would justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To detemine that a case is within the intention of a statute its language must authorize us to say so. U. S. v. Wiltberger, 5 Wheat, 76; U. S. v. Sheldon, 2 Wheat, 119.
    Where the penal cause is less comprehensive than the body of the act, the courts will not extend the. penalties provided therein to classes of persons or things not embraced within the penal clause, even where there is a manifest omission or oversight on the part of the legislature. 23 Am. & Eng. Enc. L., 382; Brooks v. State, 88 Ala., 122; 6 So. Rep., 902; U. S. v. Ten Cases Shawls, 2 Paine (C. C.), 162; Southwestern Ry. v. Cohen, 49 Ga., 627; Endlich Int. St., Sec. 336. Statutes in derogation of common right, such as those restricting or regulating the pursuit of useful occupations and callings, are to be construed strictly. 23 Am. & Eng. Enc. L., 383; Carberry v. People, 39 Ill., App., 506; Gunter v. Leckey, 30 Ala., 591; Sutherland Stat. Con. Sec. 367.
    The rule of strict construction, in the case of penal statutes, requires, that where an act contains such an ambiguity as to leave reasonable doubt of its meaning, it is the duty of the court not to inflict the penalty; that where it admits of two constructions, that which operates in favor of life or liberty is to be-preferred. Endlich Int. of Stat. Sec. 330; Commonwealth v. Standard Oil Co., 101 Pa. St., 119; Hines v. R. R. Co., 95 N. C., 434; State v. Mylod, 40 At. Rep., 753.
    Where general or generic terms follow specific or-particular ones in a statute, the former are limited in meaning to things of the same kind or nature;, hence the words “other agency” can be held to embrace only such remedial agents as are like or similar to drugs or medicines. Woodworth v. State, 26 Ohio St., 196; Lane v. State, 39 Ohio St., 312; Myers v. Seabergen, 45 Ohio St., 232; Summers v. Boyd, 48 Ohio St., 660; Maxwell Int. St., 297; Endlich Int. St. Sec. 400 to 407; Sutherland Con. St. Sec. 268 to 275; 23 Am. & Eng. Enc. L., 439, 440, 441.
    This is a rule of common sense, for if the legislature had intended the word “agency” to have its broad and full significance, as claimed by counsel for the State, it would have covered the whole ground and there would have been no need of using the particular words, “drug” and “medicine.”
    The rule of ejusdem generis is most strongly and' appropriately applied in construing penal laws, and the courts are averse toward holding guilty those-whose acts are not within the specific terms of the statute but might appear to fall within the concluding general words. Lane v. State, 39 Ohio St., 312; Mitchell v. State, 42 Ohio St., 386; Shirk v. People,. 121 Ill., 61; State v. Black, 75 Wis., 462; Commonwealth v. Kammeron, 13 S. W. R. (Ky.), 108; People v. Richards, 108 N. Y., 137.
    The following cases further illustrate this rule: Queen v. Cleworth, 4 B. & S., 926; Queen v. St. George, 9 C. & P., 483; Regina v. Reed, 28 Eng. Law & Eqty, 133; State v. Summer, 10 Vt., 587, McDade v. People, 29 Mich., 50; Brooks v. Cook, 44 Mich., 617; 71 N. Y., 481.
    An additional consideration in determining the scope of these penal sections is the fact that the general provision of section 4403c. prohibits the practice of medicine and surgery in any of its branches, without a compliance with the act In this section the words medicine and surgery are not defined and no reference is made to section 4403/.. as is done in 4403g., where the penalty is imposed. Consequently their meaning in section4403c. may well be held to be broader than in the penal sections, and to include other branches, acts, or treatments, which are thereby prohibited but not made criminal under sections 4403/. and 4403(7-, and as to such services it would be sufficient protection to the public to invoke the rules of law laid down by the supreme court, denying to unauthorized practitioners the right to recover compensation and making them liable for malpractice. Nichols v. Poulson, 6 Ohio, 305; Musser v. Chase, 29 Ohio St., 577.
    In the construction of statutes there is a great difference between remedial and penal provisions;, the former being expanded and often having words interpolated by the courts from the context or other sections in order to carry out the apparent purpose of the act and include cases within its spirit; while the latter are not thus expanded, even though there is a manifest omission or oversight on the part of the legislature. Thomas v. Stephenson, 2 El. & Bl., 108; 75 E. C. L., 107; Coe v. Lawrence, 1 id., 516; 72 E. C. L., 516; Broadhead v. Holdsworth, L. R. 2 Exch. Div., 321; Ex Parte Nat’l Mercantile Bk. L. R. 15ch. Div. 42; Underhill v. Longridge, 29 L. J. M. C., 65; 6 Jur. (N. S.), 221; appeal of Chaffee, 56 Mich., 244.
    In view of the foregoing decisions, which are all in line with Hall v. State, 20 Ohio, 7, and show how the principle laid down in that case is practically •applied by the courts, we claim that the definition -of practicing medicine given in section 4403/, does not cover or include the case described in the indictment, “the kneading and rubbing of the body for the treatment, cure and relief of an infirmity or disease.”
    The subsequent words, “wound, fracture or bodily injury,” also tend to show that the word agency if used to signify something different from medicines was appropriated and intended by the legislature to refer wholly to the practice of surgery. Evans v. State, 6 Ohio N. P., 129.
    If this be the proper construction of the terms of ■section 4403/., the question then arises, whether the kneading and rubbing of the body is a drug, or a medicine, or is included in the term surgery.
    We maintain, that taking the definitions of drug and medicine as set forth in the State’s brief, so far •as they are applicable to those terms as used in section 4403/., the kneading and rubbing of the body ■cannot be considered as covered thereby. Smith v. Lane, 24 Hun., 632.
    The American School of Osteopathy at Kirksville, Missouri, is the parent college of the system of osteopathy in this country, and the statutes of Missouri recognize osteopathy as a “system or science of treating human diseases,” and declare such system or science not to be the practice of medicine and surgery, within the meaning of the act regulating the practice of medicine and surgery in that state. Missouri Acts of 1897, p. 206.
   Shauk, J.

Counsel for the State urge upon us the yiew that when Liffring did “prescribe, direct and recommend for the use of one Carey B. McClelland, a certain agency, to-wit: a system of rubbing and kneading the body commonly known as osteopathy, for the treatment, cure and relief of a certain bodily infirmity or disease,” as charged in the indictment, he practiced medicine as defined in section 4403f. of the act “to regulate the practice of medicine in Ohio,” passed February 27,1896 (92 O. L., 44), and not haying procured from the State Board of Medical Registration and Examination, and left with the probate judge of the county, a certificate of qualification to practice medicine or surgery as required by sections 4403c and 4403d of the act, he is guilty of the misdemeanor defined in section 4403y and subject to fine or imprisonment or both. The prac: tice which the act regulates is defined in section 4403†: “Any person shall be regarded as practicing' medicine or surgery within the meaning of this act who shall append the letters ‘M. D4 or 4M. B.; to his name or for a fee prescribe, direct or recommend for the use of any person, any drug or medicine or other agency for the treatment, cure or relief of any wound, fracture or bodily injury, infirmity or disease.”

It does not seem to be supposed that the indictment charges the practice of surgery. But the proposition urged by the attorney general is that the “system of rubbing and kneading the body known as osteopathy,” which ithe indictment does charge, is an agency within the meaning of the statute, and that prescribing and directing the use of such agency is the offense defined by the statute; and it is urged that unless we give so- comprehensive a meaning to the word “agency” the associated words ’’medicine” and drug” will be denied all meaning and the purpose of the act defeated. Our knowledge of osteopathy is not definite-. The word has not found recognition in the dictionaries. It is, however, certain that its use exceeds the suggestions of its etymology. The rubbing and kneading charged in the indictment are consistent with our general knowledge that, in practice, the adherents to osteopathy wholly reject drugs and medicines. The application of the theory that disease may be cured by the manipulation of different parts of the body would not, with close regard to the meanings of words, be called an agency. But assuming a meaning of the word which might justify its being so used, if that would be consistent with the associated words, we meet the suggestion that in obedience to the maxim, noscitur a \§ociis, the meaning of the word agency must be limited by that of the associated words “drug” and “medicine.” The cases in which the meanings of words have been thus limited are so numerous that the labor of collecting them appropriately belongs to the compilers of digests. Certainly, this maxim should not be so applied as to defeat the object of legislation. It should always serve the rule that the object of construction is to ascertain intention. In substance the view presented in support of the exception is that the legislature intended to prohibit the administration of any agency and the recommendation of any mode of treating diseases or’ patients, except by the holders of certificates from, the board. That purpose would have been unmistakably expressed in fewer words than are employed, in this act. With the assumed meaning of the word! “agency,” it would have been precisely expressed' by this act if the words “drug” and medicine” had been omitted. The maxim invoked is applicable to the case because it serves the universal rule that,: in seeking the meaning of an act, all of its words-must be .considered. It requires the conclusion that the agency intended by the legislature is to be of the general character of a drug or medicine, and to be applied or administered, as are drugs or medicines, with a view to producing effects by virtue of its own potency.

The same conclusion will follow a more general,, and less technical, view of the subject. The objection which its opponents urge against osteopathy is. that it recognizes a fragment of truth and assumes, that it is the universe of truth; and that, by rejecting remedial agencies generally believed to be effective if rightly prescribed, it withholds from those* who resort to it available means of relief and cure. It is not charged that it is otherwise hurtful, nor-that its administrations are attended with danger. The obvious purpose of the act under consideration is to secure to those who believe in the efficacy of medicines the ministrations of educated men, thus-preventing fraud and imposition; and to protect society from the evils which result from the administration of potent drugs by the ignorant and unskillful. The purpose of the act is accurately indicated by its title to be “to regulate the practice of medicine.”

No provision of the act indicates an intention on the part of the legislature that those who do not propose to practice medicine shall graduate from a college of medicine, or otherwise become learned in its use. Without such knowledge no, one is entitled to a certificate from the Board of Examination. The result of the view urged in support of the exception is that, by this act, the general assembly has attempted to determine a question of science and to control the personal conduct of the citizen without regard to his opinions, and this in a matter in which the public is in nowise concerned. Such legislation would be an astonishing denial of the commonly .accepted views touching the right to personal opinion and conduct which does not invade the rights of •others. From the operation of constitutional provisions designed to establish and perpetuate freedom of thought and action in matters pertaining to religion, it results that in things which are of the first concern we are imperatively denied the guidance of legislative wisdom, and our immortal part is exposed to the enduring pain which is believed to follow the acceptance of religious error.

In the absence of a statute clearly indicating it, the General Assembly will not be presumed to have intended the consequences involved in this contention.

Exception overruled.


author: By the Court:

text:
    Slaughter v. City of Columbus.

      Police court conviction may be reviewed, by proceeding in error:-

      A conviction in a police court may be reviewed by a proceeding: in error on the ground that it is against the weight of the evidence.
    (Decided October 24, 1899.)
    Error to the Circuit Court of Franklin county..

      A. J. Greene, for plaintiff in error.

      Franklin Rubrecht, for defendant in error.
   By the Court:

The question in this case is whether a conviction) in a police court may be reviewed by a superior court on the ground that it is against the weight of the evidence. Bettie Slaughter, the plaintiff in error,, was convicted in the police court of the city of Columbus on the charge of disorderly conduct, a violation of one of its ordinances, and was sentenced to pay a fine of #20.00. She made a motion for a new trial, on the ground that the conviction was against, the weight of the evidence. This was overruled. She excepted, and took a bill of exceptions containing-all the evidence, which was approved and made a part of the record.

On error to the common pleas the judgment was; affirmed; and she then prosecuted error to the circuit court. That court refused to consider the weight of the evidence on the ground that there was no-authority for the review of a conviction of a police-court on the evidence; and finding no error of law in the record, affirmed the judgment. In refusing to consider the evidence in the bill of exceptions and determine whether it was sufficient to support the «conviction, we think the circuit court erred. Section 1752, Revised Statutes, expressly provides among other things, that “A conviction under an ordinance of any municipal corporation may be reviewed by petition in error, in the same manner and ‡0 the same extent as was heretofore permitted on writs of error and certiorari, and the judgment of ■affirmance or reversal may be reviewed in the same manner; and for this purpose a bill of exceptions may be taken or statement of the facts embodied in the record on the application of any party.” Now, recurring to the law as it existed before the codification, we find that by an amendment of section 179 of the municipal code, made April 11, 1876, it' was provided that “Any final conviction or sentence of the police court may be examined into by the ■court of common pleas on writ of error, which may he allowed by such court or judge thereof for sufficient cause, and one of the causes shall be the overTuling of a motion for a new trial on the ground that the verdict of such court is against the weight of the evidence.” It is thus apparent that the effect of ■section 1752 Revised Statutes, was simply to change the remedy, so that a conviction of a police court might be reviewed, by a petition in error, on the weight of the evidence, as had been done on a writ ■of error.

The judgment of the circuit court is, therefore, vacated and cause remanded to that court to consider the evidence contained in the bill of exceptions, and determine whether it supports the conviction of the police court, and such further proceeding as may be required by law.

Judgment accordingly.