Maxfield v. Brooks
| Decision Date | 05 February 1924 |
| Docket Number | 17829 |
| Citation | 144 N.E. 725,110 Ohio St. 566 |
| Parties | Maxfield, Treasurer, v. Brooks Et Al. |
| Court | Ohio Supreme Court |
Highways - Assessments - Injunction does not lie, when - Apportionment of costs and expenses - Section 1211 et seq., and 1214 General Code - Statutes in pari materia - Commissioners to determine assessable property, when - Power to change assessment area - Sufficiency of assessment notice to property owners.
1.Before the right of injunction Is avaIlable to a property Owner assessed for a road Improvement, It must appear that he has no adequate remedy at law.
2.Section 1211 et seq. and Section 1214, General Code, relating to road improvements, deal with the same subject-matter, are in pari materia, and therefore must be construed together, each given such reasonable construction as to give the proper force and effect to each and all of said statutes.
3.Where the Legislature's language Is clear there is nothing for the judiciary to construe. It is solely the duty of the courts to reasonably apply the statute so as to effect its obvious Purpose. Whether the land to be assessed shall be limited to abutting property owners within one-half mile of the Improvement, or to property owners within a mile of the Improvement, Is a matter vested in the discretion of the commissioners by the statute.
4.Under the above sections the area or lands to be assessed may be changed, upon due notice thereof, at any time before the assessment Ia made.
5.A notice given to the property owners "along" a road that Ia being improved is not sufficient in fact or law to charge notice to all property owners within the one-mile district on either side of such road.
A petition was filed in the court of common pleas of Clermont county, praying for an injunction against George A. Maxfield, treasurer of that county, to restrain him from collecting certain assessments on lands of the plaintiffs levied as part of the costs of a certain road improvement, commonly known as "the Grant Highway," extending from the Hamilton county line eastward through Clermont and Brown counties to West Union, in Adams county.
In the petition in behalf of the property owners so sought to be assessed it was urged that the assessment was illegally made and that the lands of the plaintiffs were in no wise benefited. Upon issues joined, the court found in favor of certain property owners, who were not within one mile of either side of such improvement. As to the assessments against the lands of all the remaining plaintiffs, the court found lawful the proceedings theretofore had, and denied the relief sought by the petitioners.
Thereupon the cause was taken to the Court of Appeals on appeal, which court found that the assessments against all the lands of the plaintiffs were illegal and made the injunction permanent. Upon a rehearing in the Court of Appeals, that court adhered to its former judgment, and the case having been admitted to this court on motion is now here for review upon its merits.
The facts so far as pertinent appear in the opinion.
Mr. S L. Nichols; Mr. Eli S. Speidel and Mr. Harry Britton prosecuting attorney, for plaintiff in error. Mr. Frank Dais; Mr. W. C. Bishop and Mr. Charles A Brannock, for defendants in error.
On the 1st day of October, 1917, the board of commissioners of Clermont county passed a preliminary resolution in favor of the construction of the improvement herein involved. It was followed by other resolutions touching the improvement and seeking state aid.
On January 29, 1920, the county commissioners passed a resolution providing, among other things, that of the cost of the improvement the state was to pay 60 per cent., the remaining 40 per cent. to be paid by the county, the townships through which the highway passed, and the abutting property holders on either side thereof; it being set forth therein that the abutting property holders were to pay 8 per cent. Thereafter bonds of the county were issued and sold to pay the proportion of the cost to be paid by the county, the township, and the property holders.
On March 1, 1920, the state highway cOmmIssioner changed the plans and specifications from a water bound to a macadam road, thereby increasing the cost and requiring the sale of additional county bonds. So far the proceedings are not seriously attacked.
On October 3, 1921, the board of commissioners of Clermont county undertook to increase the assessment area, theretofore limited to "abutting property owners," to "property owners within one mile on either side" of the improvement, which action was by the unanimous vote of the board. Subsequent to the passage of this resolution the county surveyor, agreeable to the statute and pursuant to the resolution of the county commissioners, made a tentative assessment upon the various tracts and parcels of land in the district lying within one mile of either side of the improvement.
It is not seriously claimed that any attempt was made to make an actual assessment other than this district assessment first made by the county surveyor, as aforesaid. The major question is, there fore, whether or not this action of the board of county commissioners on October 3, 1921, in organizing a district, and providing for the assessment of lands throughout such district for partial payment of the improvement, was substantially a legal assessment.
It is obvious that within recent years the state of Ohio has entered upon a new program for the construction, improvement and maintenance of highways. In earlier days this work was committed solely to the local authorities, and in many cases, either from unwillingness to improve, or inability to improve, the highways of certain pOrtions of the state were practically impassable, especially for heavy traffic. In order to make the needed improvements a general policy of state aid was provided for through joint action of local and state authorities. Much legislation has been passed to provide for and to promote this policy, and large powers have been invested in the state highway department in that behalf; and there has also been a great enlargement of the powers of local authorities in order to...
To continue reading
Request your trial
-
American Ry. Express Co. v. Mohawk Dairy Co.
... ... Brooks v. Shaw, 197 Mass. 376, 84 N. E. 110. The agent of limited powers cannot stretch them to include subjects not within their apparent scope. Persons ... ...