City of Cincinnati v. Seasongood

• Decision Date: 26 February 1889
• Citation: 46 Ohio St. 296,21 N.E. 630
• Parties: CITY OF CINCINNATI et al. v. SEASONGOOD et al.
• Court: Ohio Supreme Court

21 N.E. 630

46 Ohio St. 296

CITY OF CINCINNATI et al. v. SEASONGOOD et al.

Supreme Court of Ohio.

Feb. 26, 1889.^[1]

Error to circuit court, Hamilton county.

Adolph J. Seasongood and Louis Seasongood, executors of Jacob Seasongood, and Louis Heidelbach, executor of Philip Heidelbach, the defendants in error, brought their action in the court of common pleas against the city of Cincinnati, and E. O. Eshelby, comptroller of Cincinnati, to enjoin the collection of an assessment for a street improvement claimed to be excessive. The original petition reads as follows:

‘ The plaintiffs say that the city of Cincinnati, defendant, is a city of the first grade and first class, under the municipal laws of Ohio, and that E. O. Eshelby is the comptroller of said city. They are the executors of Jacob Seasongood, deceased, and of Philip Heidelbach, deceased, as stated in the caption, whose estates are jointly the owners of the following property; being a lot on the S.E. cor. of Third and Main streets, Cincinnati, between Pike street and a point on Third street 252 feet east of Smith street, and lying lengthwise on Third street 104.50 feet, and 36 feet 8 inches in width. Plaintiffs further say that on June 15 1885, the said city, by its board of public works, resolved that it was necessary to improve said Third street between Butler street and a point on Third street 252 feet east of Smith street, with granite blocks, one-half the expense to be paid by said city, and one-half to be paid by the owners of property bounding and abutting thereon, by an assessment to be levied by the foot front, and, if not paid in cash, to be paid in ten equal annual installments, with interest thereon under an act entitled ‘ An act supplementary to section 2293, Rev. St. Ohio,’ passed April 25, 1885, according to plans and profiles referred to in said resolution as being on file in the office of the engineer of said city; said portion of Third street having been previously improved under the direction of said city at the expense of abutting owners with bowlders, and being at the time thus improved, and in use by the public. On the 26th day of October, 1885, the board of public works of said city, on behalf of said city passed an ordinance after the publication of said resolution to improve said part of Third street, omitting the square between Pike and Butler, with granite blocks, according to the terms of, and in pursuance of, said resolution of June 15, 1885, and in said ordinance it was provided that the expenses of said improvement, including interest on bonds, if they be issued, shall be assessed per front foot upon the property abutting thereon, according to the laws and ordinances on the subject of assessments, and on ___ day of September, 1886, after due advertising for bids, the said city entered into contract for the improving of said street between the points named, to-wit, from Pike street to a point on Third street 252 feet east of Smith street, according to the terms of said resolution (with the square between Pike and Butler omitted) and the ordinance, and said improvement was so made and completed, and was accepted by said city on August 3, 1887. The total cost of said improvement was $115,081.56, one-half of which was paid by the city, and one-half, $57,540.78, was assessable upon the property of the abutting owners, which cost includes advertising and enginnering, in addition to the contract price. The actual number of feet frontage is 8,988.61 feet.

‘ On August 12, 1887, the board of public affairs passed an assessing ordinance on the abutting property for the collection of one-half of the costs, and assessed each front foot of actual frontage $6.401521 per foot, if paid in cash, or, if paid in installments, then for one-tenth of said assessment with interest on the deferred installments at 5 per cent. per annum per foot front. Plaintiffs further say that in making said assessment and in apportioning the amount of the abutting property of plaintiffs, the assessment was made upon the entire length wise actual frontage of said lots without first fixing the front of said lots to the usual depth of lots by the average of two blocks, so as to be a fair average of the depth of lots in the neighborhood, and the assessment, as now made, is on the full lengthwise frontage of said lots. Plaintiffs further say that the assessable frontage of their lot, when fixed according to the average of lots, would be 60.2 feet instead of 104.50 feet; and that the assessable frontage of the part of Third street improved would be in all 8,891.14 feet, instead of 8,988.61 feet, the basis adopted by said city; and that the rate of the cash assessment per foot front would be $6.4717, instead of $6,401521, as fixed by the assessing ordinance; and that the cash assessment of plaintiffs would be, as revised, $393.60, instead of $668.96, and the assessment on the ten-year plan would be less in the same proportion if revised accordingly. Plaintiffs further say that the defendants insist upon the collection of said assessment as now made and apportioned to their lot, and they refuse to change or amend it, or to receive any assessment or installment unless the full amount is paid; and defendants say that, unless the full amount is paid as assessed and apportioned, they will add a penalty thereto, and, for the purpose of collecting the same by summary process and by sale of their property, they will certify the assessment to the auditor of the county, who will place it upon the tax duplicate of the county with penalty, and will so force their collection by the sale of their property unless restrained therefrom by the injunction of this court, which is the plaintiffs' only remedy. Wherefore plaintiffs pray for a perpetual injunction against defendants, restraining them from collecting or attempting to collect any part of said assessment in excess of $393.60, and for all other proper relief.’

To this petition there was a general demurrer, which the court overruled. The defendants not desiring to plead further, and the cause being submitted to the court upon the pleadings, the court found the allegations of the petition to be true, ‘ and that the assessable frontage of plaintiffs' lot at the south-east corner of Third and Main streets, Cincinnati, for the improvement of Third street, with granite, is 60 1-5 feet instead of 104.50 feet, as now assessed; and that the cash assessment of plaintiffs' lot should have been $393.60, instead of $668.96.’ It was therefore ordered, adjudged, and decreed that the assessment of plaintiffs' lot in excess of $393.60, and interest on the several installments, if said sum be paid in installments, ‘ be and the same is declared void; ’ and that the defendants be perpetually enjoined from collecting or attempting to collect any part of said assessment in excess of the sum named if paid in cash, or including the interest thereon if paid in installments, and that said assessment be revised accordingly. On petition in error by the defendants the circuit court affirmed the judgment of the court of common pleas, and to reverse such judgment of affirmance this proceeding is instituted.

Where a city, through its proper boards and officers, has passed a resolution and ordinance to improve a street, in the assessment of the cost and expense on the abutting property it should be governed by the law in force at the time of the passage of its improvement ordinance, with respect to the manner of assessment and the rights and liabilities of the owners of abutting property.

Syllabus by the Court

A municipal corporation, having through its proper boards and officers passed a resolution and ordinance to improve a street, in its assessment of the cost and expense of the improvement upon the abutting property it should be governed by the law in force at the time of the passage of its improvement ordinance, with respect to the manner of assessment and the rights and liabilities of the owners of abutting property.

Horstman, Hadden, Foraker & Galvin , for plaintiffs in error.

W. M. Ampt and F. C. Ampt , for defendants in error.

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

The improvement of Third street in the city of Cincinnati, which gave rise to the special assessment under consideration, was made under the act of April 25, 1885, (82 Ohio Laws, 156,) which authorizes the board of public works in cities of the first grade of the first class, to cause any of the streets avenues, or highways of such city to be improved with granite block, asphalt pavement, or other material. The anabling statute provides that one-half of the cost of any such improvement shall be paid by the city at large, and that one-half of the entire cost of such improvement shall be assessed upon the parcels of land bounding or abutting upon the improvement, in the manner provided by law; and in making such improvement the board of public works is to have and exercise all the powers and perform all the duties of council, in the prosecution of the work or furnishing materials therefor, the making and levying assessments therefor, and the enforcement and collection thereof. On June 15, 1885, the board of public works of Cincinnati, in compliance with the provision of the statute, declared by resolution the necessity of improving a part of Third street with granite blocks; and on October 26, 1885, in behalf of the city, passed an ordinance to make...