Davis v. City of Willoughby

• Decision Date: 02 May 1962
• Docket Number: No. 37259,37259
• Citation: 173 Ohio St. 338,182 N.E.2d 552
• Parties: , 19 O.O.2d 270 DAVIS et al., Appellants, v. CITY OF WILLOUGHBY et al., Appellees.
• Court: Ohio Supreme Court

Page 338

173 Ohio St. 338

182 N.E.2d 552, 19 O.O.2d 270

DAVIS et al., Appellants, v. CITY OF WILLOUGHBY et al., Appellees.

No. 37259.

Supreme Court of Ohio.

May 2, 1962.

Syllabus by the Court.

1. Strict construction of taxing statutes is required, and any doubt must be resolved in favor of the citizen upon whom or the property upon which the burden is sought to be imposed.

2. The enactment of a resolution of necessity by a municipal corporation to make a public improvement to be paid for in whole or in part by special assessments, under the provisions of Section 727.09, Revised Code, requires the affirmative votes of three-fourths of the members elected to the legislative authority of such municipal corporation.

3. Where, in a statute relating to a particular subject, a general policy is plainly declared, and a subsequent statute authorizes the same action as the former but is silent as to the general policy declared in the first statute, the subsequent statute does not supercede the former state. (City of Cincinnati v. Connor, 55 Ohio St. 82, 44 N.E. 582, approved and followed.)

4. The term, 'concur,' as used in Section 727.09, Revised Code (Recodification Act of 1953), means an affirmative vote for the proposition involved.

In this action, plaintiff Dorothea E. Davis, for herself and upon behalf of other landowners and taxpayers of the city of Willoughby, Ohio, seeks an injunction to prevent the levy and collection of a special assessment upon the land of these plaintiffs, appellants herein, to pay for a sanitarysewer public improvement constructed by the city, upon the ground that resolution of necessity (No. 1957-30) for such public improvement, enacted by the council of the city on March 25, 1957, was invalid in that it was not adopted by sufficient votes of the members of council.

The undisputed facts, as shown by an agreed statement of facts, are:

That on March 25, 1957, the city of Willoughby operated under a charter form of government; that on such date, under the charter, the council of the city of Willoughby was comprised of seven duly elected and acting councilmen; that on that date Domenic F. Iannadrea was the duly elected president of council, and the mayor of the city of Willoughby was absent from the city; that at the regular council meeting on that date the following members of council were present: Iannadrea, Allen, Guroy, Rebbin, Rittenhouse, and Schultz; that Councilman Schrader was absent; that, in the absence of the mayor, Councilman Iannadrea, president of council, acting under the authority of the city charter, attended the meeting as 'acting mayor'; that Vice-president Schultz presided at the meeting; and that Section 6, Article III of the Charter of the City of Willoughby, reads in part:

'At any meeting at which a quorum is present, any ordinance or resolution may be passed or adopted, or any other action taken, by the affirmative votes of four members of the council unless a larger number be required by the provisions of this charter or by the laws of Ohio.'

The proceedings of the council as to resolution No. 1957-30 the validity of which is the subject of this lawsuit, were as follows:

After the clerk read the resolution declaring the necessity of constructing a sanitary sewer in the territory designated as sanitary sewer district 'A' and declaring an emergency, Allen moved that the rule requiring ordinances and resolutions to be read on three separate days be suspended, and that the resolution be placed on final reading. Guroy seconded this motion. On roll call, Allen, Guroy, Rebbin, Rittenhouse and Schultz voted 'yea.' Iannadrea did not vote. Allen then moved that resolution No. 1957-30 be adopted. Guroy seconded this motion, and on roll call all the same five councilmen voted 'yea' and Iannadrea did not vote.

Resolution No. 1957-30 appears in the city's records to have been signed by Schultz as 'acting president of council' and approved by Iannadrea as 'acting mayor.' The sewer was constructed in 1957 and paid for by the city. On July 13, 1959, the council of the city of Willoughby enacted ordinance No. 1959-57 to levy special assessments upon the lands of plaintiffs to reimburse the city for the cost that it had expended for the construction of the sewer.

The parties are referred to herein as plaintiffs and defendants, as they appeared in the trial court. The case was tried in the Court of Common Pleas upon the amended petition of the plaintiffs, the amended answer of the defendants, and an agreed statement of facts. The Court of Common Pleas denied the injunction and rendered judgment for the defendants, which judgment was affirmed by the Court of Appeals.

The cause is before this court upon the allowance of plaintiffs' motion to certify the record.

Roudebush, Adrion, Brown, Corlett & Ulrich, Cleveland, for appellants.

John M. Parks, Law Director, and Fred V. Skok, Pros. Atty., for appellees.

COLLIER, Judge.

The question presented is whether Section 727.09, Revised Code, is applicable to the proceedings of council in the enactment of the resolution of necessity for the construction of the sewer. If not, that ends the controversy. But if so, the next qestion is, does the record show compliance with that statute in the enactment of the resolution?

Section 727.09, Revised Code (Recodification Act of 1953), provided:

'When it is deemed necessary by a municipal corporation to make a public improvement to be paid for in whold or in part by special assessments, the legislative authority thereof shall declare the necessity for such improvement by resolution, three fourths of the members elected thereto concurring. No such improvement shall be made without the concurrence of three fourths of the members elected to the legislative authority * * *.' (Emphasis added.)

Chapter 727, Revised Code, is entitled 'Assessments--Generally,' and Section 727.01, Revised Code, provides for special assessments as follows:

'The legislative authority of a municipal corporation may assess upon * * * specially benefited lots or lands in the municipal corporation, any part of the cost connected with the improvement of any * * * sewers * * *.'

The defendants contend that Section 727.09 was not applicable to the adoption of the resolution of necessity for the sewer construction; that the council acted under the authority of Section 729.31, Revised Code (125 Ohio Laws, pp. 224, 225), which provided that, 'in addition to the power conferred by section 727.01 of the Revised Code to construct sewers and levy assessments therefor, the legislative authority of a municipal corporation may provide a system of sewerage for the municipal corporation.' Section 729.38, Revised Code (Recodification Act of 1953), provided: When it is deemed necessary by a city to construct any sewers provided for in a plan devised under section 729.31, Revised Code, the legislative authority thereof shall declare such necessity by resolution. This section further provided what thee resolution shall contain, but included no provision as to the number of members of council concurring to adopt such resolution.

The defendants claim that Sections 729.31 and 729.38 are special statutes and supercede Section 727.09, which is a general statute; and that, under those special statutes, the enactment of resolution of necessity No. 1957-30 required only the affirmative vote of the majority of the members of council.

In the case of City of Cincinnati v. Connor, 55 Ohio St. 82, 44 N.E. 582, a similar situation was presented, to wit, the interpretation of a general and a special provision in separate statutes providing for the levy and collection of assessments for the payment of the construction of sewers. In that case...