author: Davis, J.

text:
    Moore v. Harter.

      Tenant holds over after expiration of lease — Landlord notifies tenant of alteration in lease terms — Original lease thus modified — Landlord and tenant — Law of contracts — Leases.
    When a tenant at the expiration of a written lease, holds over as a tenant from year to year, upon the terms of the original lease, and the landlord notifies the tenant, before the beginning of another year, that if the latter holds over into another year the rent will be increased, and the tenant does so hold over, the terms and conditions of the original lease will be modified in respect to the rent so as to conform to such notice, but in all other respects they will continue to be applicable to the new tenancy. Armstrong v. Katten, horn et ah, 11 Ohio, 265, distinguished.
    (Decided December 2, 1902.)
    Error to the Circuit Court of Stark county.
    The defendant in error commenced an action in the court of common pleas of Stark county against the plaintiff in error, alleging that on April 1, 1890, the defendant, here plaintiff in error, entered into possession of certain premises under a written lease at the rate of $450.00 per year; that said defendant continued to occupy the premises from April 1, 1890, to April 1, 1892, and without any further lease continued to occupy the same until April 1, 1895, paying therefor at the rate of $450.00 per year. It was further alleged in the petition that for a considerable time prior to April 1, 1895, the plaintiff notified the defendant that beginning April' 1, 1895, the rent for the said premises would be at the rate of $500.00 per year instead of $450.00 per year; that the defendant gave the plaintiff no notice or intimation that he was dissatisfied with said increase of rent for said premises, but on the contrary, before the beginning of said term, April 1, 1895, he verbally agreed to increase the rental, and the plaintiff says he continued to occupy the premises as he had before done, and entered on the year beginning with April 1,1895, and afterwards, in the month of April, 1895, abandoned and left the premises without notice to the plaintiff of his intention so to do, and that the plaintiff never received- any rent from that time until December 1, 1895, when the premises were leased to William McKinley at an annual rental of $500.00. It is also agreed that the defendant never paid any rental for the year beginning April 1, 1895, and prayer was for judgment in the , sum of $333.28, with interest from December 1, 1895.
    The defendant answered admitting that the plaintiff was the owner- of the premises described, and that he held the same under a written lease up to April 1, 1892, and that he occupied the premises under the lease and extension thereof from April 1, 1S90, to April 1, 1895, and denying all other allegations of the petition. The verdict was for the plain tiff, and after a motion for a new trial judgment was rendered for the plaintiff in the sum of $401.60. with interest from May 1, 1899. The circuit court af- . firmed that judgment. In the charge to the jury the court of common pleas instructed the jury as follows: “I say to you as a matter of law, if you find by a preponderance of the evidence, that prior to April 1, 1895, the plaintiff herself or by her agent or attorney notified the defendant that the rent of said premises in the petition described, for the year beginning April 1, 1895, would be fifty dollars (f50.00) more per year, and if you find by a preponderance of the evidence that the defendant never dissented to said increase, but held over after April 1, 1895, occupying-said premises for any time after April 1,1895, that he might be treated as á tenant of the plaintiff subject to the original lease as amended by such notice, and it will be your duty to find for the plaintiff for the amount prayed for in her petition, provided you should find that nothing has been paid by defendant or any person to plaintiff as rental for said premises, after April 1, 1895, and until December 1,1895.
    “I instruct you also that the landlord, in case the tenant holds over, has a right to elect whether he will treat the tenant as a trespasser or a tenant for one year upon the terms of the original lease, or in case that he has been given notice of an increase of rent to which the tenant has given no dissent, then a tenant on the terms of the original lease as modified by the notice.”
    And this is assigned for error in this Court, as it had been in the circuit court.

      Mr. W. B. Sanders and Messrs. Miller & Pomerene, for plaintiff in error.

      Messrs. Harter & Krichbaum, for defendant in error.
   Davis, J.

In this case the court charged the jury that if it should find that the plaintiff, before the expiration of the year ending March 31, 1895, notified the defendant that the rent of the premises occupied by him should be fifty dollars more than 'it had been for the year beginning April 1, 1895, and that the defendant never dissented from such increase in the rent but held over after April 1, 1895, then thé defendant would be the tenant of the plaintiff subject to the terms of the original lease as amended by such notice, and that the jury should find accordingly. The jury found for the plaintiff, and the defendant complains that this instruction is erroneous. To us it appears to be strictly correct. It has long been settled in this state that when a tenant for years holds over after the expiration of his lease, he becomes, at the election of the landlord, a tenant from year to year; and in the absence of any new agreement with the landlord he holds under the terms of the original lease. Moore v. Beasley, 3 Ohio, 294; Railroad Co. v. West, 57 Ohio St., 161; Gladwell v. Holcomb, 60 Ohio St., 427. It follows that the lessor and lessee may by agreement change the terms of the original tenancy; and if, before the beginning of another year, the landlord notifies the tenant that the rent will be increased and the latter nevertheless holds over into another year, to that extent the terms of the original lease will not apply, but it will be applicable in all other respects. The reason of this is that the tenant must be presumed to have assented to the change. The authorities are numerous and conclusive on this point. Wood on Landlord and Tenant, section 13; Roberts v. Hayward, 3 Car. & P., 432; Digby v. Atkinson, 4 Camp., 275; Hunt v. Bailey, 39 Mo., 257; Brinkley v. Walcott, 10 Heisk. (Tenn.), 22; Despard v. Walbridge, 15 N. Y., 374; Gardner v. Board of Commissioners, 21 Minn., 33; Amsden v. Floyd, 60 Vt., 386; Reithman v. Brandenburg, 7 Colo., 480; Higgins v. Halligan, 46 Ill., 173; Griffin v. Knisely, 75 Ill., 411; Hoff v. Baum, 21 Cal., 120.

In Hunt v. Bailey it was said, although it would be hardly fair to say that it was decided, that: “If the tenant manifests his dissent from the terms proposed for increased rent, then no privity of contract will be created for the increased rent; and if he holds over it will be considered to be on the terms of the lease by which he originally gained possession.” The better opinion and the current of authority seem to be the other way. Roberts v. Hayward; Brinkley v. Walcott; Reithman v. Brandenburg; Griffin v. Knisely, supra. The tenant’s dissent from the terms proposed by the landlord amounts to nothing unless the latter accepts it, because the presumption is that one holding over, after notice from the landlord that a change of terms would be required, is presumed to do so on the terms proposed by the landlord. Otherwise he would put himself in the wrong and would be liable to be treated as a trespasser.

Armstrong v. Kattenhorn, 11 Ohio, 265, and the authorities which support the point decided in that case are not pertinent here. The doctrine of Armstrong v. Kattenhorn is that if the possession of the tenant “can be referred to any other source than the parol contract which it is claimed to support, even to the wrongful act of the party in possession or to a different contract, the statute applies.” The possession in that case was held to be ambiguous and as easily referable to the old lease as to the new one, and hence that the latter was within the statute of frauds and void. Although the statute of frauds declares that leases not in conformity with the statute shall be void, yet that will not prevent a periodical tenancy, subject to the terms of the original lease, from arising by taking possession under the invalid lease and paying rent in accordance therewith. Tress v. Savage, 4 El. & Bl., 36; Clayton v. Blakey, 8 T. R., 3; Railroad Co. v. West, 57 Ohio St., 161; Gladwell v. Holcomb, 60 Ohio St., 427, 433. And that is precisely that which was done in this case, and in all the cases cited above as included in the same class. The continuing in possession, after notice from the landlord to the tenant that he could not do so except under prescribed conditions, is presumed to be a possession under the named conditions. It could not be referable to the former lease without showing that the landlord had consented to withdraw the conditions.

The judgment of the circuit court is therefore

Affirmed.

Burket, C. J., Spear, Shauck, Price and Crew, JJ., concur,


source: Caselaw Access Project

license: Public Domain

text:
    Hinkle et al., Exrs., v. Sage.

      Plaintiff in action for services — Member of family for whom services rendered — No obligation implied — There must be express contract — May be written or oral — Question of proof —Law of contracts.

    1. In an action to recover compensation for services, when it appears that the plaintiff was a member of the family of the person for whom the services were rendered, no obligation to pay for the services will be implied; and the "plaintiff cannot recover in such case unless it be established that there was an express contract upon the one side to perform the services for compensation, and upon the other side to accept the services and pay for them.
    2. Such contract may be in writing or it may rest entirely in parol, and it may be proved by direct or indirect evidence; but to entitle the plaintiff to recover, the contract must be established by clear and unequivocal proof.
    (Decided December 2, 1902.)
    Error to the Circuit Court of Warren county.
    The plaintiff in her petition avers that from November 19, 1892, to November 19, 1898, inclusive, she performed services for the decedent, George R. Sage, at his request, as housekeeper, and also services in nursing, care and attention to the decedent-, at his request, during said period of time; that decedent promised to pay the plaintiff for the aforesaid work, labor, care and diligence of the plaintiff in performing the service for him as housekeeper and as nurse during said period of time, as much as the same was worth. And she avers that the usual and customary price of such service, care, nursing and attention is $15.00 a week, or a total sum of $4,680.00, and that that is the reasonable worth of said services, etc.
    The executors of Judge Sage, the decedent, answered to the effect that the plaintiff and Corwin ¡Sage, a son of the decedent, George E. Sage, are hus-, band and wife, and that after their marriage, that is, ■on or about the month of September, 1890, the plaintiff and her husband became members of the decedent’s family, and have ever since that time and up to the time of the decedent’s death, continued to reside Avith the decedent as members of his family, and that any services rendered by the plaintiff during that time were voluntarily rendered by her, and Avere for the common benefit of herself and her husband and the family generally of the decedent, and were not rendered by or in pursuance of any contract or agreement that the plaintiff should receive pay therefor. That during all said time the decedent provided a hous'e for the said family, paid all rents and •other household and family expenses, and at his own • expense furnished and provided everything necessary or required for the comfort and support of said family, including the plaintiff and her husband; that during all the time mentioned in the petition the plaintiff and her husband received their board, lodging, clothing, medical attendance, and all other necessaries from the decedent, or at his expense as members of his family, and the plaintiff received from the decedent, from time to time during said period, large ■sums of money with which to purchase clothing and other necessaries for herself, and to defray her traveling and other expenses, all of which board, lodging, clothing, medical attendance and other necessaries, and money received as aforesaid, were accepted by the plaintiff in full, satisfaction of any and all services rendered by her.
    In reply to the answer of the defendants the plaintiff admitted that she and Corwin Sage, son of George E. Sage, are husband and wife; that about September, 3.890, the plaintiff and Corwin Sage and the decedent began living together in the same house, and they so continued to live until the death of George R. Sage. Plaintiff also admits that the decedent furnished and provided some of the household and family expenses, and that the decedent furnished her certain board, and lodging, but she denies each and every other allegation in the second defense contained, except such as heretofore have been expressly admitted to be true.
    Upon the issues thus made the jury returned the following verdict: “We, the jury, being duly impaneled and sworn and affirmed, find the issues in this case in favor of the defendants.” Plaintiff made a motion for new trial which was overruled, and judgment was entered upon the verdict; a bill of exceptions was allowed and a petition in error was filed in the circuit court, which court reversed the judgment of the court of common pleas, for the following reasons:
    “First — In giving the special charge to the jury, that The plaintiff cannot recover in this cause unless, you find from the evidence that there was an express, contract between her and the decedent providing that she should be paid for her services.’
    “Second — In the general charge, to the effect that even though the plaintiff proved she had rendered services for the decedent, yet if she had not produced any evidence upon the value of any particular item of service, they should not allow her anything for that" item.
    “The court finds no other error in said record, but also finds that because of said two errors only the-said court erred in overruling said motion for a new trial.”
    The executors seek in this Court a reversal of the-judgment of the circuit court and an.affirmance of the judgment of the court of common pleas.

      Messrs. Runyan & Stanley and Mr. Thornton M. Hinkle, for plaintiffs in error, cited and commented upon the following authorities:

      Lovet v. Price, Wright, 89; Willis v. Dunn, Wright, 133; Finch v. Finch, 7 Re., 673; 4 W. L. B., 908; Pollock v. Pollock, 1 Circ. Dec., 410; 2 C. C. R., 143; Wood's Master & Servant, section 72; 2 Woerner Am. Law of Admr., section 396; Disbrow v. Durant, 54 N. J. L., 343; Raynor v. Robinson, 36 Barb., 128; Bowen v. Bowen, 2 Brad., 336; Weir v. Weir, 3 B. Mon., 645; Moore v. Moore, 81 How. Pr., 211; Koch v. Hebel, 32 Mo. App., 103; Zimmerman v. Zimmerman, 129 Pa. St., 229; Reynolds v. Reynolds, 92 Ky., 229; Mueller’s Estate, 159 Pa. St., 590; Lynn v. Lynn,, 29 Pa. St., 369; Davis v. Goodenow, 27 Vt., 715; Hall v. Finch, 29 Wis., 278; Hawthorne v. McClure, 2 Circ. Dec., 390; 4 C. C. R., 11; Brock v. Slaten, 82 Ill., 282; Candor’s Appeal, 5 W. & S. (Pa.), 513;, Succession of Rogge, 50 La. An., 1220; Trinick’s Estate, 8 Dist. Rep. (Pa.), 326; Howe v. North, 69 Mich., 272; Pricket v. Pricket, 20 N. J. Eq., 478; Fisher v. Koontz, 49 C. L. J.,. 450; Markey v. Markey, 79 N. W. Rep., 259; Watson v. Richardson, 80 N. W. Rep., 407; Ginther v. Schultz, 40 Ohio St., 104; Mehurin v. Stone, 37 Ohio St., 49; Young v. Herman, 97 N. C.; Hossler v. Trump, 62 Ohio St., 139; McIntyre’s Exr., v. Garlick, 4 Circ. Dec., 429; 8 C. C. R., 416; Thayer v. Luce, 22 Ohio St., 77; McHugh v. State, 42 Ohio St., 154; Way v. Langley, 15 Ohio St., 392; Allen v. Parish, 3 Ohio, 107; Banning v. Banning, 12 Ohio St., 437; Fuller v. Coats, 18 Ohio St., 343; Railroad Co. v. Porter, 32 Ohio St., 328; Jordan v. James, 5 Ohio, 88.

      Mr. Frank Brandon and Mr. George A. Burr, for defendant in error, cited and commented upon the following authorities:

      McIntyre’s Exr. v. Garlick, 4 Circ. Dec., 429; 8 C. C. R., 416; Williams v. Burnet, Wright, 53; Worden v. Smith, Wright, 334; Warring v. Martin, Wright, 380; Sperry v. Johnson, 11 Ohio, 452; Ellis v. Insurance & Trust Co., 4 Ohio St., 628; Byrd v. Blessing, 11 Ohio St., 362; Stockstill v. Railroad Co., 24 Ohio St., 83; Dye v. Scott, 35 Ohio St., 194; Kelley v. Howell, 41 Ohio St., 438; 6 Ency. Pl. & Pr., 675, 676; 1 Am. & Eng. Ency. Law (1 ed.), 882; 2 Bl. Com. 162; Hossler, Exr., v. Trump, 62 Ohio St., 139; Willis v. Dun, Wright, 134; Finch v. Finch, 7 Re., 673; 4 W. L. B., 908; Pollock v. Pollock, 1 Circ. Dec., 410; 2 C. C. R., 143; Hawthorne v. McClure, 2 Circ. Dec., 390; 4 C. C. R., 11; In re Estate of Mary Ward, 12 Circ. Dec., 44; 21 C. C. R., 753; Jurling v. Garner, 11 Dec., 439; 8 N. P., 277; 14 Am. & Eng. Ency. Law (2 ed.), 1084; Scully v. Scully, 28 Ia., 548; Lowe v. Lehman, 15 Ohio St., 179; Railroad Co. v. Stallmann, 22 Ohio St., 1; Meek v. Railway Co., 38 Ohio St., 632; Jones v. Bangs, 40 Ohio St., 139; Gamble v. Railroad Co., 63 Ohio St., 352.
   Davis, J.

The decision of this case turns upon the charge to the jury in the court of common pleas. The circuit court reversed the judgment of the court ol common pleas for two reasons, viz.: 1. Because the court, upon the request of the defendant, gave the following special charge to the jury: “The plaintiff cannot recover in this cause unless you find from the evidence that there was an express 'contract between her and the decedent providing that she should be paid for her services,” and, 2. Because the court charged the jury that even though the plaintiff proved that she had rendered services for the decedent, yet if she had not produced any evidence upon the value of any particular item of service, they should not allow her anything for that item. The circuit court expressly found that there were no other errors in the record. ■

It is claimed for the defendant in error, and that view seems to have been entertained by the circuit court, that when the court of common pleas charged the jury that an express contract must be proven, it should have gone further and instructed the jury that “an implied contract Avarranting a recovery in such case may be shown by evidence of all the circumstances under Avhich the services were performed, although such evidence fails to prove an express contract.” This conception of the law applicable ta such cases is erroneous.

It is averred in the ansAver of the defendants that during the time mentioned in the petition the plaintiff and her husband, who was a son of the decedent,, lived Avith, and at the expense of, the decedent and Avere members of his family, the decedent paying the house rent and other household expenses, and giving to the plaintiff and to his said son from time to time large sums of money and paying for his and her clothing and personal support. The plaintiff in reply admits that her husband is a son of the decedent, and that from September, 1890, to the death of the decedent, they lived together with decedent in the same house, and that decedent furnished some of thediousehold and family expenses, and furnished to her board and lodging. On the trial it was agreed, among other things, that decedent and his wife were absent from home for three months at least of each summer of the years 1892 to 1897, both included, and that from 1890 the family consisted of decedent and his wife, the plaintiff and her husband. So that, without regard. to the finding of the jury, the family relationship of the plaintiff and the decedent, and the dependency of her and her husband is incontrovertible. Under such circumstances where compensation for services is claimed from the head of the family, or his estate, the law. does not imply a promise and no recovery can be had unless an express contract is shown. Wood on Master and Servant, sections 72, 75; Candors Appeal, 5 W. & S. (Pa.), 513; Bash v. Bash, 9 Pa. St., 260; Duffey v. Duffey, 44 Pa. St., 399; Zimmerman v. Zimmerman, 129 Pa. St., 229; Hall v. Finch, Admr., 29 Wis., 278; In re Schmidt’s Estate, 93 Wis., 120; Collar v. Patterson, Admr., 137 Ill., 403; Disbrow v. Durand, Admr., 54 N. J. L., 343. Many more authorities might.be cited, but these are sufficient for our purpose. Cases ' of this kind are odious and are not favored by the courts because they afford opportunity for fraud against the estates of deceased persons and great temptation to perjury, by disappointed or avaricious relatives. Hence the -courts exact clear and unequivocal proof of an actual agreement upon the one side to perform services for compensation, and upon the other side to receive the services and pay for them. See Duffey v. Duffey, supra. An eminent judge declared that such a contract can be proved only by direct and positive evidence of it, and held that an instruction to the jury that such a contract would be proved by “clear and satisfactory” evidence, was erroneous. Gibson, C. J., in Bash v. Bash, 9 Pa. St., 260. This was upon the principle that juries are liable to be swayed by “considerations of hardship or paternal injustice,” and that evidence which may be clear and “satisfactory” to a jury might in fact be neither. See also Candor's Appeal, supra. Although an actual contract, one capable of enforcement as such, must be clearly and unequivocally proved, it may be proved by either direct or indirect evidence. Express contracts which are proved by the ■declarations and conduct of the parties and other circumstances, all of which are explainable*only upon the theory of a mutual agreement, are often called, •although not with entire accuracy, implied contracts, 15 Am. & Eng. Ency. Law (2 ed.), 1078; and this distinction will (sqdain the ambiguity of some authorities and the apparent contrariety of others. All of the authorities, however, seem to agree that in suits for compensation for services, where a family relation is conceded or shown to exist, an actual contract must be clearly proved. Such contract may be in writing or it may rest entirely in parol, but it must nevertheless be a contract, and in our opinion it is a misnomer to denominate it an implied contract. It does not arise from nor is it aided by implication; but it must be strictly proved. The charge' to the jury in this case, including the special request given and excepted to, was correct; and the finding and judgment of the circuit court in that respect was wrong.

The court of common pleas .committed an error in instructing the jury that they should not allow the •plaintiff anything upon any item concerning which there was no evidence as to the value of the service, Hossler v. Trump, 62 Ohio St., 139; but under the instructions the jury must have found from the evideuce that there was no contract between the parties, since as to some of the items, at least, there was evidence of value. If there was no contract, it could not. benefit the plaintiff to have a correct instruction upon this question of value, for the very foundation of recovery is wanting. Consequently the error was not. prejudicial.

As the circuit court expressly found that there were no other errors in the record.

The judgment - of the circuit court is reversed and that of the court of common pleas is affirmed.

Burket, C. J., Spear, Shauck, Price and Crew, JJ., concur.


author: Speak, J.

text:
    Joyce v. Barron, Treasurer.

      Improvement of streets■ — ■Section 230 f, Revised Statutes — Duty of council as to resolution for improvement — Glaim for damages by property owner — Sections 2315 and 2316, Revised Statutes — Requirement by filing of notice — Construction of provisions — Section 2327, Revised Statutes — Service of notice required before ordinance ordering improvement — Effect of irregularities in proceedings — Sections 2289 and 2289a, Revised Statutes — Entire failure to give and receive notice-cause of perpetual injunction — Municipal law.

    Section 2304, Revised Statutes, relating to the improvement of streets, provides that when it is deemed necessary by the municipality to make such improvement, the council shall declare by resolution the necessity of such improvement,, and shall give twenty days written notice of its passage to. the owners of the property abutting upon the improvement who may be residents of the county. Section 2315 provides that such owner, within two weeks after the service of the notice, shall file his claim for damages, if any, and failing to do so shall be deemed to have waived the same and shall be barred from filing a claim or receiving damages. Section 2316 provides that at the expiration of the time limited for filing claims for damages, as provided in the last section, council shall detecmine whether it will proceed with the proposed improvement, and if it desires to proceed an ordinance foi the purpose shall be passed. Section 2327 provides that “the proceedings shall be strictly construed in favor of the owner ol the property assessed or injured, as to the limitations on assessment of private property, and compensation for damages sustained.’’ Held'.

    1. That the service of the notice to the resident landowner substantially as required by section 2304, is a condition precedent to the exercise of the authority to pass a valid ordi-' nance ordering the improvement, so far as such owner is concerned, or to make an assessment on his property to pay for the same.
    2. The failure t-o comply with such precedent condition is not merely an irregularity or defect in the proceedings provided for in the curative sections 2289, 2289a. The irregularities, and defects therein referred to are such as occur in the exercise of lawful authority by the council.
    3. Where there is an entire failure to give the notice required, and the resident owner has no notice or knowledge of the making of the improvement until after it is wholly completed, an assessment upon his abutting property to pay for-such improvement will be perpetually enjoined.
    (Decided December 2, 1902.)
    Error to the Circuit Court of Franklin county.
    The action below was brought in the common pleas of Franklin by Eliza L. Joyce against O. E. D. Barron, as treasurer of Franklin county, to enjoin a number of assessments made upon her lands for the grading and paving of East Town street at the extreme eastern limits of the corporation of Columbus. The court found for the defendant and the plaintiff appealed. The circuit court also found for the defendant and dismissed the plaintiff’s petition. She brings this error proceeding to reverse that judgment.
    It is shown by the record that the resolution to improve declared that: “It is necessary to improve Town street from Miller avenue to Fairwood avenue by grading and constructing thereon asphalt, stone block, Hayden block, Hailwood block, East Clayton or Parto block, fire clay or hard burned brick pavement, and fitting a five inch curb of Berea or Fulton stone,” * * * “and that said improvement be made under and according to an act of the general assembly of the state of Ohio passed March 14, 1893, and entitled ‘An act to provide for the improvement of certain avenues and alleys in cities of the first .grade of the second class.’ ” It is further shown that the plaintiff was, at the commencement of the improvement proceeding, October 30, 1893, the owner of two lots on East Town street, numbers 9 and 19. She was the owner of lot 9 long prior to the date above mentioned, and acquired title to lot 19 after the presentation to council of the petition of certain of the landowners for the improvement, but before the passage by council of the resolution to improve. Her lots were assessed for the improvement as follows: $3,071.61 against lot 9, and $1,807.68 against lot 19, being a total of $4,879.28, and being $8.07 per foot front. The lots stood at the time on the tax duplicate for taxation at $3,490.00. From the finding of facts by the circuit court it appears, among other things, that the petition for the improvement was signed by the owner of lot 19, one Margaret J. McCarty, from whom plaintiff obtained title at judicial sale. It is further found that “the plaintiff was not served with notice of the passage of the resolution by council declaring the necessity for the improvement of said street, and that she had no knowledge of the passage of said resolution or the constructing of said improvement until after said improvement was completed.” Also that “the assessment placed upon the lots of plaintiff for said improvement exceeded twenty-five per cent, of the value of -said lots as returned for taxation,” but “that the improvement was a benefit to the property of the plaintiff, and the assessment upon the lots of the plaintiff was not in excess of the special benefits excluding the benefit common to the public accruing to said premises by reason of the construction of said improvement.” From the uncontradicted evidence it appears that at the time of the passage of the resolution to improve, the plaintiff was, and prior thereto had been, a resident of the city of Columbus. It appears, also, that the property, at the time of the passage of the resolution, was a vacant field, used mostly for pasturage. The street had been platted long before and lots laid out, but there had been no improvement, and the end of the street ran into commons. A considerable portion of plaintiff’s frontage, extending to the rear of her property, is left by the improvement from nine to ten feet above the level of the street, and along there the ground has washed down and entirely covered the curb.
    The ordinance, which was passed December 18, 1S93, ordains that the cost of the improvement shall be assessed equally by the foot front of property abutting on it, and no question is made but that the act of March 14, 1893, hereinbefore referred to, contemplates that mode of assessment and payment, and none other.

      Mr. T. E. Powell, for plaintiff in error, cited and commented upon the following authorities:

      Green v. Cincinnati, 4 Circ. Dec., 573; 7 C. C. R., 233; Village of Norwood v. Baker, 172 U. S., 269; Walsh v. Barron, Treas., 61 Ohio St., 15; Steese v.
      Oviatt, 24 Ohio St., 248; Badger v. McCloud, 2 Circ. Dec., 561; 4 C. C. R., 305; Stahl v. Macalester, 9 Ohio, 19.

      Mr. Luke C. Byrne; Mr. Franklin Rubrecht and Mr. Roy L. Wildermuth, for defendant in error, cited and commented upon the following authorities:
    High on Injunctions (3 ed.), sections 1240, 1252, 1270; Ex parte Black, 1 Ohio St., 30; State v. Campbell, 48 Ohio St., 435; Green v. Cincinnati, 4 Circ. Dec., 573; 7 C. C. R., 233; Toledo v. McMahon, 4 Circ. Dec., 3; 9 C. C. R., 194; Strauss v. Cincinnati, 11 Re., 92; 24 W. L. B., 422; Cincinnati v. Sherike, 47 Ohio St., 217; Railroad Co. v. Defiance, 52 Ohio St., 262; Zanesville v. Fannan, 53 Ohio St., 615; Zanesville v. Spoerl, 54 Ohio St., 634; Upington v. Oviatt, 24 Ohio St., 232; Steese v. Oviatt, 24 Ohio St., 248; Finnell v. Kates, 19 Ohio St., 405; Cincinnati v. Bickett, 26 Ohio St., 49; Bolton v. Cleveland, 35 Ohio St., 319; Ludlow v. Johnston, 3 Ohio, 553; Dodge v. Gridley, 10 Ohio, 174; Raudebaugh v. Shelly, 6 Ohio St., 307; Buckingham v. Railroad Co., 10 Ohio St., 25; Gallup v. Lorain County, 20 Ohio St., 324; State v. Kelley, 25 Ohio St., 29; State v. Perrysburgh, 14 Ohio St., 472; Shunk v. Bank, 22 Ohio St., 515; 23 Am. & Eng. Ency. Law, 422; 15 Am. & Eng. Ency. Law, 974; Sutherland Stat. Const., sections 157, 158; State v. Commissioners, 36 Ohio St., 326; Conger v. Barker, 11 Ohio St., 13; Sedgwick on Stat. and Const. Law, 299, 365; Ebersole v. Schiller, 50 Ohio St., 702; Williams v. State, 35 Ohio St., 175; Collins v. Millen, 57 Ohio St., 295; Cincinnati v. Connor, 55 Ohio St., 82; Birdseye v. Clyde, 42 W. L. B., 306; Ward v. Barrows, 2 Ohio St., 241; Coombs v. Lane, 4 Ohio St., 112; Reynolds v. Schweinefus, 27 Ohio St., 311; Becher v.
      McCloud, 2 Circ. Dec., 561; 4 C. C. R., 305; Toledo v. Railway Co., 2 Circ. Dec., 450; 4 C. C. R., 113; Ampt v. Cincinnati, 8 Dec., 624; 6 N. P., 208; Fergus v. Colombus, 8 Dec., 290; 6 N. P., 82; Coppin v. Hermann, 9 Dec., 146; 6 N. P., 452; State v. Columbus (Bd. of Ed.), 9 Dec., 336; 6 N. P., 347; French v. Barber Asphalt Pav. Co., 45 W. L. B., 401; Detroit v. Parker, 45 W. L. B., 431.
   Speak, J.

Many phases of the controversy not heretofore referred” to appear in the record, and are argued by the learned counsel, but as we view the case it can be disposed of by a consideration of one question only. That is with respect to the effect of the failure on the part of the city to give the plaintiff notice of the proposed improvement. It will be recalled that the distinct finding of the circuit court is that she was not served with notice of the passage of the reso'ution to improve, and had no knowledge of its passage, or of the construction of the improvement, until after it was completed, although, as shown by the record, she was a resident of the county.

The section of the statute (2304) under which the improvement was made,- requires that twenty days -written notice shall be given the owners of property who are residents of the county. The object of that requirement seems to be twofold. One, as provided by section 2315, that the owner of abutting land may present a claim for damages which, the section provides, must be done within two weeks or he shall be barred from filing the claim or receiving damages. Another, that such landowner might have some opportunity to approach the council with respect to the character of the pavement which is to be laid, for ■while the statute makes no provision for a hearing before council as to that, yet it seems not only reasonable but hig'hly proper that the citizen should not be-prevented from giving his views and wishes to his: own representatives with respect to the kind and. character of the work for which he, with others in like situation, is to pay. A cognate section (2327), while it provides that proceedings with respect to-improvements shaM be liberally construed to secure’ a speedy completion of the work at reasonable cost,, and the speedy collection of the assessment after the time has elapsed for its payment, and merely formal objections shall be disregarded, provides further “but the proceedings shall be strictly cons-true’d in favor of the owner of the property assessed or injured, as to the limitations on assessment of private-property, and compensation for damages sustained.”

Without going at large into the question of plaintiff’s probable damages, it is. apparent that the proposition before council and the scheme as carried out, resulted in depriving a portion of plaintiffs land of its lateral support. The right of lateral support is held to be, not a mere easement, but as part of the owner’s property in the land. It is regarded as a right of property which necessarily and naturally attaches to the soil, and passes with it. As stated by Dickman, J., in Burgner v. Humphrey, 41 Ohio St., 340: “According to the doctrine held by the courts, as summarized by an approved text writer [Woods’ Law of* Nuisance] the right which the» surface has to support, is a part of the freehold and not an easement.” That the right exists as against municipal corporations as well as individuals is distinctly recognized in Keating v. Cincinnati, 38 Ohio St., 141, where White, J., remarks: “In this state private property ,is entitled to the same protection against all classes of corporations as against natural persons, subject to the right of appropriating such property to public use upon the terms of making full compensation,” and, applying the principle, the court sustained a judgment awarding compensation to the plaintiff because the city, in making a street along a hill-side, so excavated the ground in the street as to cause the land above to slide and injure his lot. The judge also cites with approval and quotes' from the two Massachusetts cases cited below. That is, the right to lateral support is property. So that, if in the making of an improvement by a municipality excavations are made and the soil of the land of an individual gives way in consequence of being deprived of its lateral support, there is a taking and the owner is entitled to compensation. In Pumpelly v. Green Bay Co., 13 Wall., 166, the la w is held thus: “By the general law of European nations and the common law of England it was a qualification of the right of eminent domain that compensation should be made for private property taken or sacrificed for public use. And the constitutional provisions of the United States and ©f the several states which declare that private property shall not be taken for public use without just compensation were intended to establish this principle beyond legislative control. It is not necessary that property should be absolutely taken, in the narrowest sense of that word, to bring the case within the protection of this constitutional provision. There may be such serious interruption to the common and necessary use of property as will be equivalent to a taking within the meaning of the constitution.” The case is from Wisconsin, and the constitution of that state is the same in effect as ours though differing in phraseology. See also Lewis on Eminent Domain, section 151; Humphries v. Brogden, 12 Ad. & L. N. S., 739; Foley v. Wyeth, 2 Allen, 131; Gilmore v. Driscoll, 122 Mass., 199; Stevenson v. Wallace, 68 Va., 77; Dyer v. City of St. Paul, 27 Minn., 457; Armstrong v. City of St. Paul, 30 Minn., 299; Stearns v. City of Richmond, 88 Va., 992. No duty devolves upon this court, any more than was devolved upon the circuit court, to adjudicate the matter of the plaintiff’s possible damages. Neither court has jurisdiction to pass upon that question. Indeed we do not need to find, and we do not attempt to find, that she suffered damages. It suffices if it appear that, under the circumstances, she had a legal right to make a claim for damages and to have such claim passed upon by a jury.

We cannot too often recur to our organic law. Private property shall ever be held inviolate but subservient to the public welfare. If taken for roads open to the public without pay, a compensation shall be made to the owners in money, and that compensation shall be assessed by a jury. It is not required, with respect to roads, as generally, that compensation shall first be made, and so the general assembly has provided, sections 2316, 2321, that the assessment of damages may be had before the improvement is made, or after, and this is not unconstitutional. Toledo v. Preston, 50 Ohio St., 361. But the constitution, and the statute as well, imposes the imperative duty on the municipality to go forward in a proper proceeding and have the compensation assessed, and pay it. As remarked by Bradbury, J., in the case last cited: “The statute under consideration, however, only contemplates a delay until the injury shall be fully accomplished ; for, until the improvement has been completed, it is, perhaps, not always practicable to ascertain with certainty the extent of the injury, the fill ■or excavation, as the case may be, will cause; in fact the injury has not been completed until then; and a delay of the proceedings until that time, we do not think, necessarily conflicts with that provision of the constitution, before quoted, which provides that the administration of justice shall neither be denied nor delayed. No doubt a municipality should be required to proceed in good faith and with reasonable diligence with the work of improvement.”

Construing-these sections of the statute in the light of the constitution, it seems apparent that the city has proceeded, respecting the rights of the plaintiff, wholly without authority of law. It has undertaken to impose an onerous burden on her without complying with the very first step respecting her made incumbent upon it by statute, and has, by its action, prevented her from having any voice in the choice of methods, resulting, as would naturally be supposed under the circumstances, in fastening upon the street the most expensive kind of pavement, running to over $8.00 per foot front; it has cut down the street in front of a considerable portion of her property so that it stands about ten feet above the street level, and all that upon a street not built upon, and lying at the extreme limit of the corporate boundaries; it has, besides, deprived her of the opportunity of presenting a claim for damages and of having that claim, in accordance with the statute and the constitution, passed upon and determined by a jury. And now it proposes, according to the admitted allegations of the pleadings, if these thousands of dollars be not paid, to proceed by the process of a treasurer’s sale as for delinquent taxes, and sell her land to the highest bidder. A more gross abuse of corporate power can hardly be conceived. No such case has been found in the books, so far as we have discovered, because probably no such, case has ever before arisen.

But it is said that she might have proceeded herself, by an independent suit, to recover her damages. This proposition is without merit. She did not have to.. No such duty devolved upon her. The city had taken her property, and it was incumbent upon it to so conduct its improvement proceeding as to result in an ascertainment of her damages, or an adjudication that none had been sustained, in the proper forum, and this, to be commenced, in the language of the statute itself, if not sooner, at least “within ten days after the completion of such improvement.”

Again it is urged that even though plaintiff had no notice and was thus prevented from making application for damages, yet that the curative sections of the statute affords her ample relief, so that if an action were brought for the collection of the assessment, or-to enjoin its collection, the court upon trial could do full justice, having the power to take all matters into consideration, and render such judgment as in equity and good faith ought to be rendered. The trouble-with this proposition is the one suggested as to the claim in the paragraph above; the landowner is entitled to a jury to pass upon the claim of damages, and no provision is made for a jury in either of the cases supposed. Nor is the situation covered by the curative section (2289) as claimed. The failure to give the notice is not a technical irregularity, nor a technical defect. It goes to the very substance of the proceeding inasmuch as it deprives the landowner of valuable rights secured as well by the constitution as by the statute. In fairness the owner ought to have the damages, if any, awarded and paid by the city, so that the same could he used in paying the assessment, and such owner should not be driven to an independent action for damages, nor to seeking a remedy through three appraisers; and such is the spirit of the statute. And we should not forget, as already found, that section 2327 enjoins a strict construction “in favor of the OAvner of the property assessed or injured, as to the limitations on assessment of private property, and compensation for damages sustained.” Among the rights thus to be strictly construed in favor of the owner is the right to have the question of compensation for damages determined by a jury, and that, too, at a time so near the levying of the assessment, upon the property as Avill enable one hand, pro tanto, to pay the other.

Another proposition is urged. Plaintiff’s predecessor in title signed a petition for the improvement, and it is claimed that as to that lot she was not entitled to notice, and hence the plaintiff was not so entitled. This is not tenable for the reason that the. signing of a petition does not waive either notice or the right to damages, unless expressly so stated, and no such Avaiver is found in the petition in this case. The owner may sign a petition and the resolution may never be passed by council, or may be passed many months after the petition is presented. There is, therefore, no certainty when the resolution Avill be passed, and when the time for making a claim for damages Avill expire. The statute makes no exception as to notice by reason of the owner liaA’ing signed the petition, and the courts should not engraft upon it such exception.

It is further claimed that the case is ruled for the defendant by the case of Upington v. Oviatt, Treas., 24 Ohio St., 232. A hasty reading of portions of that case might give color to the claim, but a careful study of the whole case makes it clear, we think, that it has but little, if any, bearing upon the case at bar. There were a number of defects in the proceedings of council which were attacked as fatal to the right to make the assessment. One was that the preliminary resolution was not properly published in that it gave notice of an ordinance passed May 9, 1870, establishing the grade of the street, which ordinance had been in effect repealed and succeeded by one passed May 16, 1870, to change and establish the grade, the publication thus giving notice that the street would be graded ■according to the ordinance of May 9, whereas the work was done under the later ordinance. The court field that under the provisions of the curative act |'( the same substantially as the present section 2289), the faulty publication should be regarded as an irregularity or defect which did not render the proceeding entirely void. The court did, however, for that and other defects and irregularities, enjoin the collection of the assessment, but without prejudice to the making of another assessment according to law. But there are other features of the case which fully warrant the judgment rendered and which, at the same time, differentiate it from the case at bar as to a vital ■question. It appears from the record, asserted by ■counsel for the defendant and not questioned elsewhere in the report, that the plaintiff had stood by for more than a year, seeing the work progress from month to month, without objection, and that he had, in fact made a claim for damages and received the money. No wonder the court found that he ought to .bear the proper proportion of the reasonable value of the work actually done which had benefited his propel»

The case of Welker v. Potter, 18 Ohio St., 85, has more bearing upon the question at bar. It is there held (1) that “the adoption of the resolution declaring the improvements necessary, and the publication of the same, as required in the act, are conditions precedent to the exercise of the authority to pass a valid ordinance for the improvements, or make an assessment on the adjoining property to pay for them.' (2) The failure to comply with such precedent, conditions: is hot merely an irregularity or defect in the proceedings, provided for in the curative portion of the act. The irregularity or defect thus provided for is such as occurs in the exercise of lawful authority by the council.” Following this case, and to like effect, is Stephan v. Daniels, 27 Ohio St., 527. See, also, Anderson v. Commissioners, 12 Ohio St., 635, and especially the opinion of Gholson, J., pages 644, and’, following. It is true, as pointed out in the opinion in Upington v. Oviatt, supra, that the statute in force when the improvement in the Welker case was made,, in terms provides that the council had authority to-proceed to pass the ordinance to improve only after-the preliminary steps, including notice, had been-: taken. From this it is insisted that in this respect' the present statute is different, and hence the rule; of the Welker case does not apply. True, the: phraseology is different, but, taking the statute as a whole, we see no difference in legal effect. Section. 2316 provides that at the expiration of the time: limited for filing claims for damages, that is, two* weeks after the service of the notice, the council shall determine whether it shall proceed with the improvement, “and if it decides to proceed therewith an ordinance for the purpose shall be passed,” etc. That.is,., putting it negatively, the council shall not proceed to,pass tbe ordinance until two weeks after tbe service of notice. If, therefore, there is no service of notice, the time required has not elapsed and there is no authority to pass the ordinance, and if no such authority, then no jurisdiction. It seems reasonably cer-. tain that the doctrine of Welker v. Potter is applicable to the present case, and if so it settles it absolutely. This conclusion is in accord with the doctrine of Cincinnati v. Sherike, 47 Ohio St., 217, where it is held that section 2327 “requires that a strict construction be placed upon the proceedings by which it is sought to deprive the owner of his right to damages for property taken for, or injury by, the improvement.” It is also in accord with the general rule in this state, that while the proceedings of inferior tribunals, those of special and limited jurisdiction, (except on questions involving their right of jurisdiction,) will be liberally construed, this rule, as held in Harding v. Trustees, 3 Ohio, 227, being necessary from a conviction that a different course would not only destroy their usefulness, but render them in a great degree deceptive and mischievous, yet upon the question of jurisdiction itself a strict construction is required, and especially where the object is to take private property by a summary proceeding under the statute, in which case the rule is just as well established that the steps necessary to acquire jurisdiction must be strictly pursued, and when notice to the party, before action taken upon Ms rights, is required, isuch notice is an essential condition to the exercise of jurisdiction.

These considerations lead to the inevitable conclusion that the giving of the statutory notice to the resident landowner prescribed by section 2304, substantially as therein required, is a condition to the obtaining' of jurisdiction by council over tbe person .and property of such resident, and that where council proceeds without compliance with this requirement, and such owner has not notice otherwise, such failure is not cured by the curative sections of the statute, and its action, as affecting such owner, in making the assessment sought to be levied, is wholly without legal •effect.

The judgment of the circuit court will be reversed, and final judgment rendered here perpetually enjoining the collection of any part of the assessments.

Reversed.

Burket, C. J., Davis, Price and Grew, JJ., concur.


author: Blrket, C. J.

text:
    The Chicago & Erie Railroad Co. v. Keith et al.

      Requirement that railroad companies — Construct ditches along side of roadbed — Validity of Sec. 334%, Rev. Stat. — Invalidity of Sees. 3343, 3344, 3345 and 3343, Rev. Stat. — Because in conflict with sections 13 and 19, of article one of constitution — Statutory law prevails over common law — Rights of property owners as to taxation — Inviolability of property rights — Constitutional law.

    1. Section 3342, Revised Statutes, requiring railroad companies to construct and keep open ditches of sufficient depth, width, and grade, to conduct to some proper outlet, the water which accumulates along the sides of such roadbed from the construction or operation of such road, is a valid statute in so far as the accumulation of water is injurious to the contiguous lands, or detrimental to the public, but invalid where such water is not injurious to such lands or the public.
    2. In so far as sections 16 and 19 of article one of the constitution conflict with the common law, these sections must prevail over that law. And this is so whether the conflict is as to the right or remedy.

      3. It is necessary to tbe validity of an assessment on real estate, other than general taxes, that somewhere along the line of the proceedings, notice be given to the owner, and an opportunity afforded him to be heard in opposition or defense.
    4. Sections ,3343, 3344, 3345 and 3346, Revised Statutes, are in conflict with sections 16 and 19 of article 1 of the constitution and are void, for the reason that they attempt' to authorize the taking of private property for private purposes, and without due course of law.
    (Decided December 2, 1902.)
    Error to the Circuit Court of Allen county.
    The Chicago & Erie Railroad Co., plaintiff in error, and also plaintiff below, filed the following petition in the court of common pleas against Priscilla Keith and Theo. D. Robb, as probate judge of Allen county:
    “Now comes'the plaintiff, The Chicago & Erie Railroad Co., and says that it is a corporation duly organized under the laws of the state of Indiana, and for cause of action against the defendants, Priscilla Keith and Theo. D. Robb as judge of the probate court of Allen county, Ohio, avers as follows, viz.:
    “That on May 9, A. D. 1899, there was served by the-sheriff of Allen county, Ohio, upon one F. C. McCoy, the agent of plaintiff at the city of Lima, Ohio, a notice, signed by Theo. D. Robb as probate judge for Allen county, Ohio, and bearing the seal of the probate court of said county, and purporting, to be the-copy of an order, judgment or decree entered in case No. 7442 of said court, entitled: Priscilla Keith, plaintiff, v. The Chicago & Erie Railway Co., a corporation, defendant, the said defendant in said cause-No. 7442 of said probate court of Allen county, Ohio, being the plaintiff in this proceeding; and by the terms of said judgment, order or decree this plaintiff, as said defendant,’was directed to construct a drain,, or drains and ditches, of sufficient capacity to conduct to some proper outlet the water accumulated along the side of plaintiff’s roadbed, by reason of the construction and operation of said roadbed, situate within the limits of section thirty-five (35) of said roadbed, and adjoining lands owned or occupied by Prised la Keith, said lands being in section twelve (12), township four (4) south, range four (4) east, in Allen county, Ohio; and said notice further declared that unless said defendant (the plaintiff herein), should comply with the requirements thereof within thirty days from said May 9, 1899, then that said Theo. D. Robb as said probate judge of Allen county, Ohio, would forthwith proceed and advertise for the letting, and proceed and let the contract for draining said accumulated water from the side of said .roadbed'along the points and places above described, to the lowest bidder, in accordance with law.
    “That prior to said May 9, A. D. 1899, this plaintiff, as defendant in said proceedings in case No. 7442 of the probate court of Allen county, Ohio, had no notice or summons of any kind directed to it requiring it to appear before said probate court, and have judicially determined whether or not the land described in said proceedings could be properly drained and the costs thereof assessed against plaintiff herein, as said defendant, or whether or not the roadbed of the defendant was constructed and maintained at said points and places through swamp lands, so as to exempt plaintiff, under the statute, from the cost and expense of draining said lands; and plaintiff, without fault on its part, was prevented from tendering any issue that might have been tried or determined in said cause.
    “That the time named within the notice served by the sheriff upon the agent of plaintiff on May 9, A. 1). 1899, has expired, and the defendant, Theo. D. Robb as probate judge of Allen county, Ohio, is threaténing to proceed and advertise for the letting of a contract for draining the lands above described at the points and places above described; and unless restrained by an order of this court, said Theo. D. Robb as said probate judge will advertise and let said contract, and thereafter will charge the cost and expense of the same against the property of plaintiff, and will thereby deprive plaintiff of its property without due process of law; and for all of which wrongs and injuries plaintiff has not an adequate remedy at law.
    “That said plaintiff in said cause No. 7442 of the probate court of Allen county, Ohio, is proceeding under the alleged authority of an act of the legislature of Ohio, passed May 7, 1869, entitled: ‘An act to require railroad companies to drain water from the sides of their roadbeds in certain cases,’ and which alleged law is now designated as Sections 3342, 3343, 3344, 3345 and 3346, Revised Statutes of Ohio, and is (as plaintiff herein believes), contrary to the provisions of section nineteen (19), article one (1) of the constitution of Ohio.
    “That said probate court of Allen county, Ohio (as plaintiff believes), has no authority in law to enter the order and notice served upon plaintiff as herein alleged, or, upon failure of plaintiff to comply with said order, to advertise for the opening of said ditches and drains and let the contract therefor, or to certify the cost and expense thereof and place the same upon the tax duplicate against plaintiff, for that thereby plaintiff is deprived of its property without clue process of law and without any judicial determination that the same is'for the public welfare.
    “Wherefore plaintiff prays that a temporary injunction may issue directing said Theo. D. Robb, as said judge of the probate court of Allen county, Ohio, and his successors in office, to refrain from advertising the letting, and to refrain from the letting, of a contract to dig said ditches and drains described in these proceedings, and to refrain from certifying the cost and expense of said proceedings so that the same may be placed against the property of plaintiff on the tax duplicate of Allen county, Ohio, for collection, until the legality of said acts of said probate court may be inquired into and until the constitutionality of said act of the legislature of Ohio may be judicially determined; that plaintiff may have any other and further orders necessary to fully protect its rights and give adequate relief in equity; and that upon the final hearing of this cause, said injunction may be made perpetual.”
    To this petition the defendants filed a general demurrer, which was sustained by the court of common pleas, and the plaintiff not desiring to further plead, the court dismissed the petition and rendered final judgment against the plaintiff, to which the plaintiff excepted.
    The circuit court affirmed the judgment and thereupon the railroad company filed its petition in error in this Court, seeking to reverse the judgments of the courts below.

      Mr. W. O. Johnson and Messrs. Ridenour & Halfhill, for plaintiff in error, cited and commented upon the following authorities:
    1 High on Injunctions, section 502; Simpkins v. Ward. 45 Mich. 559; Jones v. Davis, 35 Ohio St., 474; Wyscaver v. Atkinson, 37 Ohio St., 80; Counterman v. Dublin Tp., 38 Ohio St., 517; Stephan v. Daniels, 27 Ohio St., 527; South Ottowa v. Perkins, 94 U. S., 260; State v. Railway Co., 31 Ark., 701; State v. Railway Co., 74 Mo., 163; Post v. Supervisors, 105 U. S., 667; Moody v. George, 37 W. L. B., 189; Board of Education v. McLandsborough, 36 Ohio St., 232; Lima v. McBride, 34 Ohio St., 338; Cooley on Taxation, 41; Cooley on Const. Lim., 593-596; Montesquieu Spirit of the Law, Book 13, Ch. 1; McCulloch v. Maryland, 4 Wheat., 316; Kirtland v. Hotchkiss, 100 U. S., 491; Louis v. Webb, 3 Me., 326; Layne v. Dorman, 3 Scam., 242; Campbell v. Union Bank, 6 How. (Miss.), 661; Ervine’s Appeal, 16 Pa. St., 266; Selby, appellant, 6 Mich., 193; McDaniel v. Correll, 19 Ill., 226; Denny v. Mattoon, 2 Allen, 361; Budd v. State, 3 Humph., 483: Wally’s Heirs v. Kennedy, 2 Yerg., 554; Picquet, appellant, 5 Pick., 64; Reeves v. Treasurer, 8 Ohio St., 333; Chamberlain v. Cleveand, 34 Ohio St., 551; Harvard v. Drainage Co., 51 Ill., 130; Lee v. Ruggles, 62 Ill., 427; Tidewater Co. v. Coster, 18 N. J. Eq., 518; Hoboken Co. v. Hoboken, 36 N. J. Eq., 291; State v. Newark, 37 N. J. L., 422; Scott v. Toledo, 1 L. R. A., 696; Weismer v. Douglas, 64 N. Y., 91; People v. Mayor, 4 N. Y., 419; Baltimore v. Harris, 26 Md., 194; Stewart v. Palmer, 74 N. Y., 188; Kirby v. Shaw, 19 Penn. St., 258; Schenley v. Commonwealth, 36 Penn St., 29; McGonigle v. Allegheny City, 44 Penn., 118; In re Washington Ave., 69 Penn. St., 360; Patterson v. Society, etc., 24 N. J., 385; In re Drainage of Lands, 35 N. J., 497; St. John v. E. St. Louis, 50 Ill., 92; In re Albany St., 11 Wend., 149; Litchfield v. Vernon, 41 N. Y., 123; But

      ler v. Supervisors, 26 Mich., 22; Patten v. Green, 13 Cal., 325; Philadelphia v. Miller, 49 Pa. St., 440; Ireland v. Rochester, 51 Barb., 414; In re Ford, 6 Lans., 92; Den v. Improvement Co., 18 How., 272; Barhyte v. Shepherd, 35 N. Y., 238; Weaver v. Devendorf, 3 Denio, 116; Brown v. Smith, 24 Barb., 419; Chegaray v. Jenkins, 5 N. Y., 376; Clark v. Norton, 49 N. Y., 243; Overing v. Foote, 65 N. Y., 263; Railroad Co. v. Wagner, 43 Ohio St., 75; Sessions v. Crunkilton, 20 Ohio St., 349; French v. Edwards, 13 Wall., 506; Davidson v. New Orleans, 6 Otto, 97; Lawton v. Steele, 119 N. Y., 226; Edson v. Crangle, 62 Ohio St., 49; Deming v. Cleveland, 12 Circ. Dec., 198; 22 C. C. R., 5; License Cases, 5 How., 589; Rockwell v. Nearing, 35 N. Y., 308; People v. Budd, 117 N. Y., 1; Wynehamer v. People, 13 N. Y., 378; People v. Otis, 90 N. Y., 48; Coe v. Schultz, 47 Barb., 64; Brown v. State of Maryland, 12 Wheat., 419; Pumpelly v. Green Bay Co., 13 Wall., 166; Butchers’ Union Co. v. Crescent City Co., 111 U. S., 746; Slaughter-House Cases, 16 Wall., 36; Hepburn v. Griswold, 8 Wall., 603; Austin et al. v. Murray, 16 Pick., 121; Watertown v. Mayo, 109 Mass., 315; In re Townsend, 39 N. Y., 171; In re Cemetery Assn., 66 N. Y., 569; In re Warehouse Co., 96 N. Y., 42; Hutton v. Camden, 10 Vroom, 122; Yates v. Milwaukee, 10 Wall., 505; Salem v. Railroad Co., 98 Mass., 431; State v. Jersey City, 29 N. J. L., 170; Chicago v. Laflin, 49 Ill., 172; Babcock v. Buffalo, 56 N. Y., 268; Mugler v. Kansas, 123 U. S., 623; Wreford v. People, 14 Mich., 41; Railway Co. v. Cincinnati, 62 Ohio St., 475; Railroad Co. v. Commissioners, 63 Ohio St., 23.

      Messrs. Hoagland & Lippincott, for defendants in error, cited and commented upon the following authorities:
    Cooley’s Const. Lim., 573; Thorpe v. Railway Co., 27 Vt., 149; Kauffman v. Wootters, 138 U. S. S. C., 285; Cooley on Taxation, 48, 49; Anderson v. Brewster, 44 Ohio St., 582.
   Blrket, C. J.

The object of the action is to test the constitutionality of the sections of the statute mentioned in the petition. The original statute was passed in the year 1869, and its provisions have been carried into the Revised Statutes. The sections are as follows:

“Section 3342. There shall be constructed and kept open, along the roadbed of every railroad, except where the road extends through or by swamp land, by the company or person operating the road, ditches or drains of sufficient depth, width, and grade to conduct to some proper outlet the water which accumulates along the sides of such roadbed from the construction or operation of such road.
“Section 3343. If, after ten days’ notice or request to any ticket or other agent of the company or person operating a railroad, to provide such drain or ditch, preferred by the person authorized to institute the proceedings hereinafter provided for, the provisions of the foregoing section be not complied with, any owner or tenant of land contiguous to such railroad feeling aggrieved by such neglect may give notice of the fact, in writing, to the probate judge of the county in which such neglect occurs, designating in such notice the place or places on such road where such drains or ditches have not been made; and upon the receipt of such notice the probate judge shall appoint a commission of three disinterested freeholders of such county, who together with the county surveyor^ shall proceed to the place designated in the notice, and, if upon inspection, it is found that the .provisions of the preceding section are not complied with, the commission or a majority thereof, shall report the same to such probate judge, who shall keep a record of such proceedings; and the probate judge shall designates time within which such ditches or drains shall be made or opened and shall forthwith notify the company or person operating such road, in writing, whose duty it shall be to make or open such ditches or drains within the time specified.
“Section 3344. If such company or person neglect to comply with the notification of the probate judge, he shall forthwith, by advertisement for three consecutive weeks, in one or more of the weekly newspapers published in such county, give notice that the work of making or opening the ditches or drains will be let to the lowest bidder at such time and place as shall be designated in the advertisement.
“Section 3345. The probate judge shall, at the time and place specified in the advertisement, sell the job or jobs of making or opening such ditches or drains to the lowest bidder, and take from such bidder a sufficient bond, with surety, for the performance thereof, and upon the completion thereof to the satisfaction of the probate judge, he shall give the bidder a certificate therefor, stating the amount due for the work; and upon presentation of the certificate to the auditor of the county, he shall place the amount so certified forthwith upon the tax duplicate of the county, against the company, together with all the costs and expenses for inspection by the commission and surveyor, notices, advertisements, sale of work, making contract therefor, approval, of the work, and other costs, .and interest on the amount certified to be due for the work from the time the work is approved until the amount can be collected by the treasurer of •the county; and such tax shall be collected as other taxes, and be paid to the persons entitled thereto on the warrant of the county auditor on the county treasurer.
“Section 3346. The probate judge, commissioners, and surveyor shall be entitled to receive for their services such costs, fees and expenses as are provided by law for costs, fees, and expenses of county commissioners and others under proceedings relating to ditches.”

That a duty may rest upon a railroad company to remove such water as accumulates along the sides of its roadbed from the construction or operation of its road, to the injury of contiguous lands, or to the detriment of the public health, convenience and welfare, seems clear, and that such railroad company may be compelled by statute and upon proper proceedings to discharge such duty and remove such water is equally clear; but where such water so accumulates on the right of way and along the sides of such roadbed, and does' no injury to contiguous lands, and is not detrimental to the public health, convenience and welfare, the railroad company cannot be compelled by statute to remove the same, because it has the right to use its right of way, its property, as it pleases, so long as such use does no injury to the public or to private persons. The right to store water on the right of way, may in certain cases, be a valuable right, and when no injury results from such storage, the right cannot be curtailed.

Where an accumulation of water along the sides of such roadbed is not detrimental to the public health, convenience or welfare, but is injurious to contiguous lands, the injury arising from such accumulation is not an injury to the public, to be by it redressed or prevented, but is a private injury to the contiguous lands, to be redressed by the owners by an action for ■damages, or other proper action, in the court of common pleas, the probate court not having jurisdiction •of such actions.

The ditch act of May 1, 1854, was held unconstitutional for the reason that it authorized the entry upon lands of others, and the construction of drains, when ■demanded by private interest merely, without reference to public interests, convenience, or welfare. Reeves v. Treasurer of Wood County, 8 Ohio St., 333, 346. And in McQuillen v. Hatton, 42 Ohio St., 202, this Court again held that ditches could be constructed only in the interest of the public, and that the fact that larger crops could be raised on lands to be benefited by a ditch, was a private, and not a public, interest, and would not warrant the establishment of the proposed ditch.

The sections in question do not in the least provide for the protection of the public health, convenience or welfare, but are solely for the redress of grievances of ■private persons, the owners of lands contiguous to the railroad. And said sections are so broad that under them railroads might be compelled by the owner or tenant of contiguous lands, to drain off all such accumulations of water, even -though not injurious to such lands or the public, and accumulated and stored on the right of way for the use of such railroad.' The general assembly has not the power to impose or enforce such a duty.

By these sections authority is attempted to be given for the lowest bidder to enter upon the right of Avay of the railroad, and construct a ditch for the sole benefit of a private individual, without reference to the interests of the public. The costs of such ditch, and all costs of the proceedings, are to be assessed against the railroad, placed upon the tax duplicate, collected by the county treasurer as other taxes, and paid over to such bidder upon the warrant of the county auditor. And all this is done not in the interest of the public, but in the interest of private persons. It is not so much a case in which private property is taken for public use for which compensation must be first made in money, as it is a taking of private property for private use, and therefore in violation of that part of section 19 of the Bill of Rights which says: “Private property shall ever be held inviolate, but subservient to the public welfare.” The money required to pay the assessment is the private property of the railroad company and cannot be taken from it for the private welfare of another.

The sections in question provide solely for the relief of the lands of private individuals in their private interests, and seek to impose a burden by way of assessment, to be collected as taxes from the railroad company for "the private benefit of such individuals, and for that reason are unconstitutional. Assessments and taxes can be levied and collected only for public purposes.

There is another reason Avhy these sections are unconstitutional: An assessment is attempted to be authorized upon the railroad company without an opportunity to be heard. The OAvner or tenant of land contiguous to the railroad may give ten days’ notice to any ticket or other agent of such company to provide such ditch, and upon failure to do so, he may give notice in writing to the probate judge of the county, and the judge thereupon appoints a commission to inspect the part of the road in question and report (o him. Thereupon the judge notifies the railroad company in writing to open such ditch within a time specified. If hot opened the probate judge, upon three weeks-' notice by advertisement, lets the work of opening such ditch to the lowest bidder. After the work is completed the cost thereof, and all costs of the proceeding, are to be certified to the auditor, placed on the duplicate, collected as other taxes, and paid over to the person who did the work. The railroad company is notified by the owner or tenant to open the ditch, and is also notified by the probate judge to open it, but no notice is given to it of any hearing, and no provision whatever is made for a hearing at any stage of the proceedings

It may be that the railroad extends through or by swamp land, in which case the statute by its terms is not applicable. It may be that the ditches already provided are of sufficient depth, width, and grade to conduct the water to a proper outlet. It may be that the accumulation of water does not arise from the construction or operation of the road, but from the natural lay of the land. It may be that no public interest is to be conserved, for which alone an assessment can be made. It may be that the accumulation of water is not injurious to contiguous lands or the public. As to all these, and other material matters, the railroad company has a right to be heard before it is condemned to suffer and pay an assessment. Reasonable notice, and an opportunity to be heard in defense or opposition, are prerequisites to jurisdiction; and an assessment made without such notice and opportunity to be so heard is void, not only for want of jurisdiction but also because there was not due process of law.

While taxes are laid without notice, the statutes being regarded as sufficient notice, and section 4858 as sufficient remedy, special burdens by way of special assessments, cannot be laid on property without notice and an opportunity, somewhere along the line, to be heard in opposition or defense.

Special assessments cannot exceed the special benefits. Walsh v. Barron, 61 Ohio St., 15. And if there is nothing else available to the landowner, this question may arise in every case, and therefore the landowner is entitled to notice before any burden by way of special assessment is laid on his property. The rule in such cases is well stated in Stuart v. Palmer, 74 N. Y., 183, as follows: “A law imposing an assessment for a local improvement, without notice to, and a hearing or an opportunity to be heard, on the part of the owner of the property to be assessed, has the effect to deprive him of his property without due process of law, and is unconstitutional. The law may prescribe the kind of notice and the mode in which it may be given, but cannot dispense with all notice. It is not enough that the owner may, by chance, have notice, or that he may, as a matter of favor, have a hearing. The law must require notice .and give the right to a hearing.”

It is urged by counsel for defendant in error that the sections in question are enacted under the police .power, and do no more than to require the railroad (company to so use its property as not to injure that of another, and cite Cooley Const. Lim., star page 573. While the general assembly under the police power may restrict and regulate the conduct of persons, and the use of property, within reasonable bounds, it must do so under the limitations of the constitution, and cannot, under the guise of that power, take the private property of one person and bestow it upon another for his private u.se and benefit. Neither cam it lay an extra burden on property without notice to the owner and an opportunity to be heard. The regulation and restriction under the police power in behalf of the public, may be enforced by taxation or assessment, but in behalf of a private individual it can only be enforced by action in a court of competent jurisdiction.

Tt is also urged by counsel for defendants in error, that the accumulation of water along the roadbed is a nuisance, and that the proceedings authorized by said sections are not more than the abatement of such nuisance at the expense of the party creating it, and this seems to have been the view taken by the courts below. Chicago & E. Ry. Co. v. Keith, 12 Circ. Dec.,. 208; 21 C. C. R., 669; Lawton v. Steele, 119 N. Y., 226; 16 Am. St. Rep., 813, is cited and relied upon to support this contention.

The law of nuisance has no application to the subject-matter of these-sections. Nothing is said in them as to nuisances, and there is no declaration in the statute making such accumulation of water a nuisance, and no authority given to abate any such pretended nuisance. The whole object of the statute is to conduct the accumulated water to a proper outlet so as to protect lands contiguous to the railroad, and for the private benefit of the owners of such lands. There is nothing in the statute looking to the protection of the public health, convenience or welfare. So that if the law of nuisance were to be applied to this case, it C'uild not avail, because the nuisance would be to private individuals, and not to the public. Even Lato ton. v. Steele, supra, concedes that a private nuisance cannot be abated by the party inconvenienced without process of law.

In the Lawton v. Steele case the statute declared and made the fish nets a public nuisance and authorized their destruction by any person, and required the game and fish protectors to destroy them. Under that statute the destruction of the nets was upheld as not being a taking of private property for public use without compensation, and also as not being a taking without due process of law. That case was affirmed by the Supreme Court of the United States in 152 U. S., 133, the Court holding that the statute came within the police power, and as to the value of the nets, in effect, applied the maxim of De minimis non curat lew. The exact question has never been passed upon by this Court, but from the general trend of our decisions, and the construction of our constitution, it may well be doubted whether the summary destruction of such nets under such a statute would be upheld by this Court. In Edson v. Crangle, 62 Ohio St., 49, the statute forbade the use of the nets, and provided that nets set or placed contrary to the act should be confiscated, sold, and proceeds placed in the public treasury; and this Court held the seizure of such nets without process of law to be in violation of the constitutional rights of the owners, and compelled the game warden to make compensation. In that statute there was no provision declaring the nets a nuisance, as in the sections under consideration here there is no provision making the accumulated water a nuisance. That which the general assembly has not declared a public nuisance and authorized its summary abatement in the interest of the public, cannot be construed by a court to be such nuisance and liable to be summarily abated without process of law, even in the interest of the public, and certainly not in the interest of private individuals. This is conceded in Lawton v. Steele, supra.

It is also urged that at common law nuisances might be abated, and that our constitution has made no change in this regard. If at common law private property might, be taken for private use, or taken for public use without compensation, or taken or destroyed without due course of law, then our constitution has rendered inoperative the common law in that regard, because under our constitution private property shall ever be held inviolate, and where taken for public use compensation therefor must be first made in money; and every person for an injury done him in his land, goods or person shall have remedy by due course of law. The common law in so far as it conflicts with these provisions of the constitution is inoperative. There is nothing so sacred in the common law, that it should override a constitution or statute. Much of our constitution Avas adopted, and many of our statutes enacted, to get rid of the imperfections and injustice of the common hew.

While therefore said section 3342 is valid as to the duty imposed on such railroad company to construct and keep open ditches as therein provided Avhere the accumulation of such water is to the injury of contiguous lands, or detrimental to the public, it is invalid when such Avater is not injurious to such lands, or the public, because if no injury is done by such accumulated water, the railroad company can use its right of way for the storage of such water or other purpose as to it may seem proper.

The remedy provided in said sections 3343, 3344, 3345 and 3346 for the enforcement of said duty so imposed by section 3342 is in conflict with section 19 of article 1 of the constitution, and section 16 of the same article, because the private property of the railroad company, the money to jiay the assessment, is. taken, not for a public, but private purpose, and thereby the constitutional right of the company to hold its. private property inviolate is invaded; and this is done without due course of law, because done without notice and an opportunity to be heard in defense, and because further that the right of the owner of contiguous lands for redress against the company for failure to construct and keep open such ditches, is a private right to be enforced by proper action in a court of competent jurisdiction, and not by the paternal remedy of assessment and taxation for the protection and benefit of private persons. The power of assessment and taxation can be enforced by the state in the interest of the public only, and not for the redress of private wrongs.

The judgments of the courts lielow will be reversed,, the demurrer to the petition overruled, and the cause remanded to the court of common pleas for further proceeding^ according to law.

Judgments reversed and cause remanded..

Spear, Davis, Shauck and Crew, JJ., concur.

Price, J., not sitting.


author: Burket, O. J.

text:
    The Central Ohio Railroad Co. and The Baltimore and Ohio Railroad Co. v. The City of Bellaire.

      Collection of street assessments — Bight of action for — After assessment certified to county auditor — Section 2295, Bev. Stat. - — Law of taxation.

    After an assessment for a street improvement Ras been certified to the county auditor and placed on the* tax list as «provided in Section 2295, Revised Statutes, the right of action for the collection of such assessment rests alone in the county treasurer,
    (Decided December 2, 1902.)
    Error to the Circuit Court of Belmont county.
    The original action was by the City of Bellaire against The Central Ohio Railroad Co., as reorganized, The Baltimore and Ohio Railroad Co., and the Cleveland, Lorain and Wheeling Railroad Co. This same case was here before, and was heard and decided upon the question as to whether the case was appealable, and is reported in 60 Ohio St., 301, where the facts are more fully stated.
    The Cleveland, Lorain and Wheeling Railroad Co. failed to answer and no judgment was rendered against the company, and it seems to have dropped out of the case.
    The petition in the court of common pleas was for the collection of an assessment for the improvement of Central avenue, and it avers that after the ordinance making the assessment was in full forcé, the city caused the assessment to be duly certified to the auditor of the county, that the same was placed upon the tax list and tax duplicate as provided by law; and upon trial on appeal in the circuit court, that court found, among other things, that the said, assessment was duly certified to the auditor of the county and placed on the tax list against the property owned by The Central Ohio Railroad Co. and occupied by The Baltimore and Ohio Railroad Co. as lessee. After finding the amount due on said assessment the circuit court rendered judgment, ordering the sale of the real estate of said corporations to pay the amount found due; to all of which said railroad companies excepted.
    Said railroad companies filed a demurrer to the petition, the first ground of which is: “That said petition does not state facts sufficient to constitute a cause of action against the defendant and is insufficient in law.”
    The courts below failed to sustain this demurrer and overruled the same, to which exception was duly taken. In addition to the special finding of facts made by the circuit court there is a bill of exceptions, setting out all the evidence, motion for new trial, which was overruled, and judgment entered as above stated. Thereupon said railroad companies filed their petition in error in this Court, seeking to reverse the judgment of the circuit court.

      Mr. J. H. Collins and Mr. N. K. Kennon, for plaintiff in error, cited and commented upon the following authorities:

      Norwood v. Baker, 172 U. S., 269; Shroder v. Overman, 61 Ohio St., 1; Stewart v. Palmer, 74 N. Y. Ct. App., 183; Spencer v. Merchant, 125 U. S., 345; Glaize v. Railroad Co., 1 Strob., 70; Railroad Co. v. Bank, 82 Ill., 493; Richardson v. Railroad Co., 8 Ia., 260; Davis v. Railroad Co., 17 Ga., 323; Belden v. Railroad Co., 15 How. Pr., 17; People v. Fredericks, 48 Barb., 173; Baldwin v. Railroad Co., 5 Ia., 518.

      Mr. Cook Danford, city solicitor, and Mr. Hunter S. Armstrong, for defendant in error, cited and commented upon the following authorities:

      Ernst v. Kunkle, 5 Ohio St., 521; Railroad Co. v. Connelly, 10 Ohio St., 160; Norwood v. Baker, 172 U. S., 269; French v. Paving Co., 45 W. L. B., 401; Corry v. Gaynor, 21 Ohio St., 277; Welker v. Potter, 18 Ohio St., 85; Upington v. Oviatt, 24 Ohio St., 232; Green v. Cincinnati, 4 Circ. Dec., 573; 7 C. C. R., 233.
   Burket, O. J.

Section 2295, Revised Statutes, is as follows: “The council may order the clerk or other proper officer of the corporation to certify any unpaid assessment or tax to the auditor of the county in which the corporation is situated, and the amount •of such assessment or tax so certified, shall be placed upon the tax list by the county auditor, and shall, with ten per cent, penalty to cover interest and cost ■of collection, be collected with and in the same manner as state and county taxes, and credited to the corporation ; provided, that the said ten per cent, penalty shall in no case be added unless at least thirty days shall intervene between the date of the publication of the ordinance making the levy and the time of certifying the same to the county auditor for collection.”

So much of Section 2296, Revised Statutes, as is applicable to this case, is as follows: “Assessments placed upon the tax list, under the provisions of this chapter,- shall, when collected, be paid to the treasurer of the corporation, and be applied by the council only to the purposes of the improvement for which they were made.”

Section 2297, Revised Statutes, is as follows: “The lien of an assessment shall continue two years from the time the same is payable, and no longer, unless the corporation shall, before the expiration of the time, have caused the same to be certified to the auditor of the proper county, for entry upon the tax-list, for collection, or shall have caused the proper action to be commenced in some court having jurisdiction thereof, to enforce such lien against such lots or lands, in which case the lien shall continue in force so long as such assessment remains on the tax list uncolItacted, or so long as such action is pending, and any judgment obtained, under and by virtue thereof, remains in force and unsatisfied.”

As the petition avers, and the circuit court finds,, that after the assessment ordinance was in full force, the city of Bellaire caused the assessment to be duly, certified to the auditor of the county, and that the same was pláced upon the tax list against the property in the petition described, it follows from the provisions of said section 2295, that the said assessment, with ten per cent, penalty, could thereafter be collected only with and in the same manner as state and county taxes; because said section provides that upon such assessment being certified to the county auditor, the amount thereof shall be placed upon the tax-list, with ten per cent, penalty, and “shall be collected with and in the same manner as state and county taxes”

Section 2296 provides that assessments placed upon the tax-list, shall, when collected, be paid to the treasurer of the corporation. This means that when collected by the county treasurer, who alone collects the tax list and state and county taxes, such treasurer shall p^y the amount of the assessment collected to the treasurer of the corporation.

Section 2297 provides that the lien of an assessment shall continue for two years from the time the same is payable and no longer, unless the corporation shall, before the expiration of the two years, have caused the assessment to be certified to the auditor for entry ■on the tax list for collection, in which case the lien shall continue in force so long as such assessment ■shall remain on the tax-list uncollected.

There is also a provision to the effect that if the corporation- shall commence a proper action within two years for the collection of the assessment, the lien shall continue so long as such action is pending, and the judgment obtained therein remains unsatisfied.

' These sections clearly give the corporation power to sue within two years for the collection of such assessments as have not been certified to the county auditor, but after such assessment has been so certified the power of the corporation to sue for and collect the same no longer exists, and thereafter the right •of action for the collection of such assessments is vested alone in the county treasurer, and he shall •collect the assessments with and in the same manner as state and county taxes.

The petition avers that said assessment became a lien on the premises on August 7, 1889, and was payable twenty days thereafter, and that the same was certified to the county auditor in the same year. The action in the common pleas was begun by the city on December 24,1894, long after the assessment had been •certified to the auditor, and long after the city’s right of action had ceased and the lien in favor of the city expired. So that when this action was begun by the city it had no lien to enforce, and had no right of action for the collection of the assessment by judgment and execution, that right, if it existed at all, being-vested in the county treasurer from and after the time •said assessment was so certified to the county auditor.

It is therefore clear that the city of Bellaire had no' cause of action against said defendants below and that the first ground of demurrer should have been sustained.

It is urged that the demurrer should have been upon the ground that the city did not have capacity to sue, rather than that the petition did not state facts sufficient to constitute a cause of action against the defendant. This distinction is not tenable. The city has full capacity to sue, and there is no defect in that regard. But in exercising its capacity to sue it discloses, by the averments of its petition, that there is no cause of action in its favor, and that the cause of action, if any existed against the defendants, is in favor of another party. To enable a plaintiff to recover, his petition must disclose a cause of action in favor of the plaintiff and against the defendant; and if the petition discloses a good cause of action against ihe defendant, but at the same time shows that the cause of action is not in favor of the plaintiff, the petition is demurrable on the ground that it does not state facts sufficient to constitute a cause of action. Buckingham v. Buckingham, 36 Ohio St., 68; Zinn v. Baxter, 65 Ohio St., 341, 369.

Besides the error in not sustaining the demurrer to the petition, the circuit court also erred in rendering judgment agaiust the defendants below in favor of the city of Bellaire, because the finding of facts clearly shows that the assessment had been certified to the auditor and placed on the tax-list fully four years before the action was commenced, and the city, therefore, had no cause of action against the defendants at the time of the commencement of its suit.

Some other questions have been argued in this case, but as the plaintiff below showed no cause of action. in its favor those questions' became immaterial and are not decided, for the reason that to attempt to do so would be obiter.

The judgment of the circuit court will be reversed, and judgment rendered in favor of the plaintiffs in error

Judgment reversed and judgment for plaintiffs in error.

Spear, Davis, Shauck and Crew, JJ., concur.


author: By the Court :

text:
    The State of Ohio ex rel. the Attorney General v. Hall.

      Cleric of court of common pleas — Invalidity of aot to change term of office — After election to office under old law — Act of April SO, 1902 — Section 12lfi, Rev. Stat. — Repealing section void — Constitutional law.

    1. The act of April 30, 1902 (95 O. L., 332), to amend Section 1240, Revised Statutes, is unconstitutional and wholly void, because by it the general assembly has attempted (1) to exercise power not possessed by it to defer the commencement of the official terms of persons elected to the office of clerk of the court of common pleas to a date later than that fixed by the law in force when elected, and (2) to provide for vacancies in office which do not occur fortuitously.
    2. The repealing section of said act is also void, and clerks of the court of common pleas will be elected hereafter as provided by said section 1240 before said attempted amendment; and those heretofore, as well as those hereafter elected, will take office on the first Monday in August next after their election.
    (Decided December 2, 1902.)
    In Quo Warranto.
    The petition shows that at the November election, 1898, the defendant Hall was duly elected to the office of clerk of the courts of Guernsey county; that lie afterward duly qualified, and on tlie first Monday of August, 1899, entered upon the discharge of his duties ; that his election was for three years, his official term expiring on the first Monday of August, 1902; that at the November election, 1901, one Andrew J. Linn was duly elected to the office of clerk of the courts of said county of Guernsey for the term of three years, to commence on the first Monday of August, 1902; that said Linn having been duly qualified as such clerk, did, upon said first Monday of August, and at a later date, demand of the defendant the possession of the books and records appertaining to said office, which the defendant refused to deliver to him; and that the defendant usurps said office and excludes said Linn therefrom. The prayer of the petition is for the ouster of Hall and the induction of Linn.
    The defendant answered, impliedly admitting all the allegations of the petition, but alleging that on August 14, 1902, a vacancy occurred in the office of clerk of the court of Guernsey county, and that on that day he was, by the board of county commissioners of said county, duly appointed clerk pro tempore of said courts to fill such vacancy, and that pursuant to said appointment, he duly qualified and now holds the office by virtue of said appointment. The cause is submitted on a demurrer to the answer.

      Mr. John M. Sheets, attorney general, Mr. Smith W. Bennett and Mr. J. E. Todd, for relator.

      Mr. J. A. Troette and Mr. James Joyce, attorneys for defendant.
   By the Court :

The vacancy in the office of clerk of the court of common pleas is said to have resulted from the amendment of April 30, 1902, of Section 1240, Revised Statutes (95 O. L., 332). At the time of the election of the defendant that section provided: “There shall be elected triennialiy in each county, a clerk of the court of common pleas, who shall hold his office three years, beginning on the first Monday of August next after the expiration of the term of office of his predecessor.” The amendment of April 30, 1902, made after the election of Linn as the defendant’s successor in office, consisted in the Substitution of January for August in the section, and making the following addition: “Provided, however, that successors to clerks of courts of common pleas whose present terms of office expire in 1903, shall be elected at the next general election following the enactment hereof, and thereafter clerks of the courts of common pleas shall be elected at the general election next preceding the beginning of their official terms as fixed by this act.”

The amendment is ineffectual to postpone the beginning of the official term of one previously elected to the office pursuant to statutes then in force. It is ordained in section 16 of article 4 of the constitution: “There shall be elected in each county, by the electors thereof, one clerk of the court of common pleas, who shall hold his office for the term of three years, and until his successor shall be elected and qualified.” The express provision that the clerk shall hold for the term of three years is not clearer than the implication that he shall not hold longer if his successor has been elected and qualified. Within the requirements of the constitution, county officers are to be elected by the electors of the state, and the general assembly is without power to create an interval between the official terms of persons elected to such office. These propositions are sufficiently established by The State ex rel. the Attorney General v. Heffner, 59 Ohio St., 368; State ex rel. the Attorney General v. Beal, 60 Ohio St., 208. The amending act of April 30, 1902, including its repealing section, is wholly void, and Section 1240, Revised Statutes, stands as though such amendment had not been attempted.

Judgment of ouster and induction.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.