Lewis v. Symmes
| Decision Date | 09 January 1900 |
| Citation | 56 N.E. 194,61 Ohio St. 471 |
| Court | Ohio Supreme Court |
| Parties | LEWIS, County Auditor, v. SYMMES et al. SAME v. TAYLOR et al. BADER et al., Commissioners, v. CINCINNATI, P. & V. R. CO. |
Error to circuit court, Cuyahoga county.
Suits by Symmes and others against Lewis, county auditor, and by Taylor and others against the same, and by the Cincinnati Portsmouth & Virginia Railroad Company against Bader and others. Judgments for plaintiffs, and defendant bring error. Affirmed.
The defendants in error brought several suits in the court of common pleas for injunctions to prevent the collection of assessments upon their lands for the improvement of Columbian avenue, in Hamilton county, relying upon the constitutional invalidity of the legislative act under which the improvement and the assessments were made. The substance of the act is as follows:
Sections 3, 4, and 5 provide for the appointment of viewers by the county commissioners, for the giving of notice by the viewers, and for the presentation to them of claims for damages for the making of the improvement, and the estimating of the costs thereof by the viewers. Sections 6 and 7 provide for the issuing of bonds of the county to raise the money necessary to meet the expense of making the improvement, and for the making of the assessments, and the levying of a general tax to meet one-half of said expense. Section 8 required the commissioners ‘to begin forthwith the making of said improvement.’ Section 9 provided that the act should take effect upon its passage. It was passed April 12, 1893 (90 Ohio Loc. Laws, p. 217).
The answers admit that the defendants, relying upon the validity of said act, proceeded to carry out its provisions by making the improvement according to its mandatory requirements; averring that the road was of general benefit to the people of the county, and of special benefit to the plaintiffs; that the plaintiffs had knowledge of the intention of the commissioners to make such improvement pursuant to the provisions of the act, and to assess one-half the costs thereof upon the lots and lands described in the second section of the act, but took no steps to prevent the improvement, except that some of them presented to the commissioners protests against the same, and that relying upon their acquiescence, and the validity of the act, bonds of the county to the amount of $45,000 were issued, and that the county is without means for the payment of a portion thereof, except said assessment; and that said act had before the making of said improvements been adjudged valid by the circuit court of Hamilton county. The answers further allege against the plaintiffs Anna Symmes and Anna Hayward that they had presented to the viewers appointed by the commissioners under said act claims for damages for land taken from them for the making of said improvement, and that such claims had been allowed and paid. In the court of common pleas it was adjudged that the facts alleged in these answers did not constitute a defense, and perpetual injunctions were allowed as prayed for. On petition in error the circuit court affirmed the judgment of the court of common pleas.
1. The rule that retrospective operation should not be given to a change in judicial opinions respecting the constitutional validity of legislative enactments can be invoked only to avoid the impairment of the obligation of contracts which have been entered into pursuant to statutory provisions, and in reliance upon former adjudications respecting their validity.
2. The owner of lands within an assessment district defined in an unconstitutional act for the improvement of a public highway not having promoted the making of the improvement, may enjoin the collection of an assessment to pay for such improvement in a suit for that purpose begun...
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