8 Ohio St. 333 (Ohio 1858), Reeves v. Treasurer of Wood County
| Citation | 8 Ohio St. 333 |
| Opinion Judge | BRINKERHOFF |
| Party Name | MARK E. REEVES v. THE TREASURER OF WOOD COUNTY ET AL |
| Attorney | James Murray, for plaintiff in error. George Strain, for defendants in error. |
| Judge Panel | BRINKERHOFF, J. SWAN, SCOTT and SUTLIFF, JJ., concurred. |
| Court | Ohio Supreme Court |
Page 333
Page 334
THIS is an application for leave to file a petition in error in this court to reverse a judgment of the court of common pleas of Wood county, rendered on the 15th of February, 1859.
The question presented to the court below arose on demurrer to the petition of the plaintiff, who is now plaintiff in error.
The petition, after stating that the plaintiff was, and for more than three years (then) last past had been, the owner in fee simple, and in possession of, certain real estate, particularly described, situated in Jackson township, Wood county, Ohio, contains the following allegations and prayer:
"That there is assessed on the tax duplicate of Wood county, Ohio, for the year of our Lord eighteen hundred and fifty-eight, for collection against said real estate, the sum of one hundred and three dollars and sixty-four cents, of which amount the sum of one hundred dollars was assessed by the auditor of said Wood county, Ohio, against said land for the payment of a certificate issued by the trustees of Jackson township aforesaid, to one Moses Dubbs, which said certificate, together with all other proceedings in said matter, was issued under and based on the provisions of an act of the legislature of the State of Ohio, passed May 1, 1854, entitled 'an act authorizing the trustees of townships to establish water-courses and locate ditches in certain cases,' and an act of the legislature of the State of Ohio, to amend the same, passed April 14, 1857, entitled 'an act to amend the act authorizing trustees of townships to establish water-courses and locate ditches in certain cases, passed May 1, 1854.' And plaintiff says, as a matter of law, upon information and belief, that said several acts of the legislature are unconstitutional and void. Plaintiff says that on the 20th day of December, A. D. 1858, he tendered the treasurer of Wood county, Ohio, three and sixty-five one hundreths dollars in full of all taxes legally due and chargeable against said real estate, which he refused to receive, and threatens to return the same delinquent, and charge penalty thereon. And he now brings said sum so tendered as aforesaid, into court. Plaintiff asks judgment that said treasurer and auditor of Wood county, Ohio, may be restrained from returning said real estate as delinquent, or charging any penalty thereon, or otherwise attempting to collect said assessment. And the plaintiff prays said assessment for the payment of said ditch or drain certificate be declared illegal and void, and without authority of law; and that said Moses Dubbs be ordered to pay the costs of this suit; and for other proper and suitable relief."
To this petition the defendants demurred, on the ground that the same does not state facts sufficient to constitute a cause of action.
On the hearing of the demurrer, the court below rendered the following judgment:
"This cause came on to be heard, on the demurrer of the defendants to plaintiff's petition, and the same being argued by counsel, the court, being fully advised in the premises, do find that said petition does not state facts sufficient to constitute a cause of action, in this, that 'an act authorizing the trustees of townships to establish water-courses and locate ditches in certain cases,' passed May 1, 1854, and the 'act to amend the act authorizing the trustees of townships to establish water-courses and locate ditches in certain cases, passed May 1, 1854,' passed April 14, 1857, are constitutional and valid enactments. It is therefore considered that said demurrer be and the same is hereby sustained, and that defendants go hence without day, and recover of plaintiff their costs, taxed at $ ---, and that execution issue therefor, as well as for defendants' costs, taxed at $ ---. Plaintiff excepted to said order and judgment."
To reverse this judgment, application is made to this court for leave to file a petition in error.
The plaintiff in error claims that the court below erred --
In sustaining the demurrer to the petition;
In holding the acts of the legislature, set out in the judgment, to be constitutional and valid; and
In rendering judgment for the defendants and against the plaintiff.
The judgment of the court of common pleas is reversed, and the cause remanded for further proceedings.
SYLLABUS
1. The power to authorize assessments, as distinguished from taxes proper, is comprehended in the general grant of legislative power to the general assembly.
2. Such assessments are not embraced within the meaning of the word "taxing" in the second section of the twelfth article of the constitution.
3. The power to authorize assessments for the construction of free turnpike roads, and the opening of drains, as well as for the improvement of streets and sidewalks, exists to the same extent under the present constitution as under that of 1802.
4. The act of May 1, 1854, "authorizing the trustees of townships to establish water-courses," etc., and the amendatory act of April 14, 1857, are in contravention of the nineteenth section of the bill of rights, inasmuch as they authorize an appropriation of private property without reference to the public welfare.
We claim the acts under consideration to be unconstitutional and void --
1st. Because they authorize an appropriation, without the consent of the owner, of private property for private purposes. McCoy v. Granby, 3 Ohio St. Rep. 463; McArthur v. Kelley, 5 Ohio Rep. 143; Geisy v. C. W. & Z. R. R. Co., 4 Ohio St. Rep. 327.
2d. We claim the act to be unconstitutional, in that it authorizes the trustees of townships to compel a party benefited by the construction of the ditch, to perform a certain share of the labor, in default of which the value thereof is assessed against and collected from him; in other words, a party's proportion of the labor is assessed against him as a tax or charge, and he has the privilege of performing the labor in place of paying the money. Hill v. Higdon, 5 Ohio St. Rep. 243.
3d. The act under consideration is also objectionable, in that it seeks to confer authority on the trustees of a township to compel a man to improve his land, and to direct the time, mode and manner in which it shall be done.
4th. Again, we regard these acts as unconstitutional, because they provide no adequate or certain compensation to the party whose land is taken. Lamb & McKee v. Lane, 4 Ohio St. Rep. 167.
5th. Again, if the trustees refuse to grant compensation, no right of appeal is allowed.
OPINION
Page 335
Accompanying the application for leave to file a petition in error in this case, is an agreement of counsel for the respective parties, that the case shall be finally decided, and the judgment affirmed or reversed, upon the present application.
Ordinarily, the court would not act upon such an agreement
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of counsel, and thus give a recent case preference over other cases pending on our docket. But we have thought best to do so in the present case, for the reason that it is supposed to be a matter of considerable public interest that the constitutional questions involved in the case should have an early adjudication.
The first section of the amendatory act of April 14, 1857, under which the proceedings complained of in this case were had, and the provisions of which, so far as they have any bearing upon the questions under consideration, are in no way qualified by the remainder of the act, is as follows:
"That the township trustees shall have power, on the application of any party, to enter upon any land in their township to view any water-course or proposed ditch for the purpose of draining any land held by more than one person, and to cause said ditch or water-course to be located and set apart to each person interested in such ditch or water-course, such portion of the same to be by him opened, as shall be deemed by them right and just, according to the benefit to be derived by such person from the opening of said ditch or water-course; and also to assess against him such portion of the expenses and damage hereafter provided for, as according to right and justice he ought to pay."
This act, it is argued, is in contravention of the second section of the twelfth article of the constitution, which provides "that laws shall be passed, taxing, by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money," etc.
And the question is now presented: Is the assessment authorized by this act embraced within the meaning of the term "taxing," in the above clause of the constitution? If it is, the act and the assessment are unconstitutional and void, and there is an end of the inquiry; if not, the case is open to further investigation.
Some very important and leading points in this inquiry have been already considered and settled by this court, in the case of Hill v. Higdon, 5 Ohio St. Rep. 243, and reaffirmed in several succeeding cases. The question involved in that case was as to the constitutional validity
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of an act of the general assembly, under the present constitution, authorizing an assessment, by the corporate authorities of Cincinnati, upon the lot of the plaintiff in error, according to the front foot, of the expense of grading and improving the adjacent street. That case was decided, after full and repeated argument (in that and other cases), after many doubts and long and careful consideration. And we all agree, that notwithstanding the doubts at first entertained, the conclusions arrived at rest upon a foundation of reason unanswerable and...
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