Caldwell v. Village of Carthage

• Decision Date: 26 April 1892
• Citation: 31 N.E. 602,49 Ohio St. 334
• Parties: CALDWELL v. VILLAGE OF CARTHAGE.
• Court: Ohio Supreme Court

31 N.E. 602

49 Ohio St. 334

CALDWELL v. VILLAGE OF CARTHAGE.

Supreme Court of Ohio.

April 26, 1892

Error to circuit court, Hamilton county. Affirmed.

The facts fully appear in the following statement by DICKMAN, J.:

The plaintiffs in error, J. Nelson Caldwell, Frank Caldwell Fannie E. T. Caldwell, Marion L. Caldwell, and Cornelia A Caldwell, commenced the original action in the court of common pleas against the defendant in error, the village of Carthage, E. E. Ross, clerk of said village, and Fred Raine and John Zumstein, respectively county auditor and county treasurer of Hamilton county, Ohio. The village of Carthage in said county, in order to widen Taylor street in said village, appropriated a strip of ground belonging to the plaintiffs, 33 feet wide, along the west side of Taylor street, for its entire length. To pay the cost and expenses of the appropriation a special assessment was levied, by the foot front, upon the lots and lands of the plaintiffs bounding and abutting upon the improvement, and the original action was brought to enjoin the collection of the assessment. The court of common pleas held the assessment against the plaintiffs and their property to be void, and perpetually enjoined the defendants from collecting, or attempting to collect, and from demanding, certifying, or receiving, any of said assessment from any of the plaintiffs to all of which the defendants, by their counsel, excepted. The cause was appealed by the defendants to the circuit court, and that court found the facts upon the matters in issue, and rendered judgment as follows: ‘ (1) The village of Carthage is duly incorporated, and is situated in a county containing a city of the first grade of the first class; that on October 1, 1889, there was, and for many years prior thereto had been, in said village a certain street known as ‘ Taylor Street,’ running northwardly from a point near Fifth street to the Hamilton, Springfield, and Carthage turnpike; that said Taylor street was thirty-three (33) feet in width; and that said street was dedicated from the lots and lands lying on the east side thereof. (2) That said Taylor street is a continuation of Jackson street, and that the west line of said Taylor street, when thirty-three feet wide, was the center line of Jackson street produced, said Jackson street being sixty-six feet in width; that on October 1, 1889, the said village of Carthage deeming it necessary to widen said Taylor street, and to make it conform to said Jackson street, of which it is a continuation, the council of said village, by a unanimous vote of its members, duly passed an ordinance, No. 808, to appropriate a strip of ground thirty-three (33) feet wide along the west side of said Taylor street for its entire length. Section 1 of said ordinance declared the intent to appropriate the property, describing it, for the purposes above set forth. Section 2 directed the solicitor of the village to apply to the court to have the compensation assessed to be paid for the property. Section 3 provided that the cost and expenses of said appropriation shall be assessed per front foot upon the lots and lands abutting upon the westerly side of said Taylor street, widened as aforesaid, said assessment to be collected in five annual installments, and bonds to be issued in anticipation of the collection of said assessments. Said ordinance was read the first time. The rule of law requiring ‘ bylaws, resolutions, and ordinances, of a general and permanent nature, shall be fully and distinctly read on three different days, unless three-fourths of the members elected dispense with the rule,’ was then dispensed with by a unanimous vote of the members elected to council, the yeas and nays being called and entered on the journal. The ordinance was then read the second and third times by its title. On motion final action was then taken, and the ordinance duly passed, upon a call of the yeas and nays, by a unanimous vote of the members elected and the vote duly entered on the journal. Said ordinance was duly published as required by law. No resolution declaring such widening of Taylor street to be necessary was adopted by council, and consequently no publication made or service of notice of such resolution. (3) Plaintiffs in this cause were all parties defendant in a suit brought in pursuance of said ordinance to ascertain the compensation to be paid for the property condemned by the verdict and judgment, but neither the petition, the summons, nor any other part of the record of said cause disclosed the intention or purpose to assess the plaintiffs' land to pay the cost and expenses of said widening. (4) The benefits of the property assessed, by reason of the appropriation of property and widening of Taylor street, are much greater than the amount of the assessment, and the assessment is less than one fourth of tax values or actual values of the property assessed after the making of the improvement of widening said Taylor street. The assessment includes only the cost and expenses of the appropriation of property for widening Taylor street, as provided in said ordinance No. 808. The court finds on all the issues joined herein for the defendants. It is therefore ordered, adjudged, and decreed by the court that the petition herein be dismissed, and that the defendants recover from the plaintiffs their costs herein expended, taxed at $_____; to all of which findings and judgment plaintiffs, by their counsel, except.' To reverse the judgment of the circuit court this proceeding in error is prosecuted.

Syllabus by the Court

1. The preliminary resolution declaring the necessity of an improvement, which the council is required to pass, give notice of, and publish, as provided in section 2304 of the Revised Statutes, does not apply to the condemnation of private property for opening, extending, atraightening, or widening a street.

2. Where land is appropriated for a street improvement, an assessment by the foot front of the property bounding and abutting upon the improvement, to pay the cost thereof, without the passage, notice, and publication of such preliminary resolution, as thus provided, will not thereby be a taking of property without due process of law, in violation of section 1 of the fourteenth amendment of the constitution of the United States.

W. M. Ampt and John E. Bruce , for plaintiffs in error.

S. B. Hammel , for defendants in error.

DICKMAN, J., (after stating the facts as above .)

It is conceded in the case now under consideration that before proceeding to condemn the property of the plaintiffs for the purpose of widening Taylor street the council did not declare by resolution the necessity of such a street improvement, as set forth in section 2304 of the Revised Statutes, and hence gave no notice of its passage to the owners of the abutting property. It is therefore contended that the assessment to pay the cost and expenses of the improvement is void, and that the defendants should be enjoined from collecting, or attempting to collect, any part of the same. Section 2304 provides: ‘ When it is deemed necessary by a city or village to make a public 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, or to the persons in whose names it may be assessed for taxation upon the tax duplicate, who may be residents of the county, and publish the resolution not less than two nor more than four consecutive weeks in some newspaper published and of general circulation in the corporation.’ There can be no doubt that the resolution declaring the necessity of the improvement is required in a street improvement by construction, as by grading, paving, macadamizing, changing grade, repairing, etc.; but the question arises, is such a resolution required in a street improvement by appropriation of property? The language, ‘ when it is deemed necessary to make a public improvement,’ is general in its nature, but the word ‘ improvement,’ as used, in subdivision 1 of chapter 4 of assessments in general, is not of uniform signification. In some sections of the statute the street improvement contemplated is of one kind, while in other sections provision is made for an improvement of a different character. Whether the term ‘ improvement’ refers to condemnation proceedings, or to the construction or repair of a street, must be determined by the connection in which it is used. In our view, the preliminary resolution provided in section 2304 is not necessary in the appropriation of property for opening, widening, and extending streets. For the purpose of the improvement contemplated, the resolution of necessity is a part, and an essential part, of the proceeding. But by reading section 2304 in connection with sections 2315 and 2316 of the Revised Statutes-being sections 563, 564, and 565, as revised, of the Municipal Code of 1869 (66 Ohio Laws, 245)-it will be apparent that the preliminary resolution and notice thereof refer, not to an appropriation deemed necessary to be made, but to an improvement of a constructive character, as by grading, raising, or lowering the grade, to which damages are usually incident. Section 2315 provides that an owner of a lot or of land bounding or abutting upon the proposed improvement, and claiming that he will sustain damages thereby, shall, within two weeks after the service or the completion of the publication of the notice ‘ mentioned in section 2304,’ file his claim for damages, with a general description of the property to which it is claimed injury will accrue. The resolution declaring the necessity of the improvement having been brought to the knowledge of the...