Murdock v. City of Cincinnati

• Decision Date: 07 January 1891
• Citation: 44 F. 726
• Parties: MURDOCK v. CITY OF CINCINNATI et al.
• Court: U.S. District Court — Southern District of Ohio

44 F. 726

MURDOCK v. CITY OF CINCINNATI et al.

United States Circuit Court, S.D. Ohio, Western Division.

January 7, 1891

Rankin D. Jones, for complainant.

Theo. Horstman, for defendants.

JACKSON J.

The complainant seeks to enjoin the city of Cincinnati, its agents and officers, from collecting or enforcing against him or his property certain foot-front assessments, levied and imposed to meet and defray the expenses incurred in improving Grand, Hawthorn, and Phillips avenues, in said city, on which complainant's lot or parcel of ground bounded and abutted. It is not denied that the laws governing the city of Cincinnati confer upon its authorities full power to make assessments to defray the costs and expenses of improving streets and avenues therein by the foot front of the property bounding and abutting upon such improvements. By sections 2263, 2264, Rev. St. Ohio, the city council are authorized to assess the costs and expenses of acquiring and of improving streets either upon the general tax-list, in which case the assessment is imposed upon all the taxable real and personal property in the corporation, or the same 'may be assessed on the abutting, and such adjacent and contiguous, or other benefited, lots and lands in the corporation, either in proportion to the benefits which may result from the improvement, or according to the value of the property assessed, or by the foot front of the property bounding and abutting upon the improvement, as the council, by ordinance setting forth specifically the lots and lands to be assessed may determine before the improvement is made. ' Such assessments may be made payable in one or more installments and at such times as the council may prescribe. It clearly appears that the city authorities directed the improvements and made the assessments in question to defray the expenses thereof, in accordance with the provisions of the statutes relating to the subject. But it is claimed on behalf of complainant that, although the laws authorizing the assessments complained of were complied with, they, and the proceedings taken thereunder by the city authorities, are wanting in 'due process of law,' because said assessments are allowed and permitted to be made without notice to, or a hearing, or an opportunity of hearing, by, the owner or owners of the property to be assessed, and because, in fact, no notice was given to complainant, nor any opportunity of hearing afforded him in relation thereto.

This is the sole federal question presented by the record or involved in the case. The complainant relies upon the opinion of this court in the case of Scott v. City of Toledo, 36 F 385, in support of his contention. But this case is clearly distinguishable, in several important particulars, from that of Scott v. City of Toledo, and is not properly controlled by that decision. It is shown here that complainant actually petitioned the board of public affairs of Cincinnati for the improvement of Hawthorn and Phillips avenues, and for the assessment for the whole cost of such improvement, to be made and collected in 10 annual installments, etc.; 'and in consideration of the city's making said improvement,' he, and each of the signers of said petitions, agreed with each other and with said city, and jointly and severally bound himself, to make good to the city any deficiency in the collectibility of the assessment, caused by insufficiency of values of property of those not signing the petitions. In respect to Grand avenue, his predecessor in title had signed and presented to said board a similar petition. In compliance with said petitions, after due and proper steps to ascertain the costs of the improvements, and the propriety of making the...