Shoemaker v. City of Cincinnati
| Decision Date | 23 June 1903 |
| Citation | 68 Ohio St. 603,68 N.E. 1 |
| Parties | SHOEMAKER et al. v. CITY OF CINCINNATI et al. |
| Court | Ohio Supreme Court |
Error to Circuit Court, Hamilton County.
Action by one Shoemaker and others against the city of Cincinnati and another. From a judgment for defendants in the circuit court, plaintiffs bring error. Affirmed.
The action below was begun July 15, 1901, in the court of insolvency of Hamilton county, by the plaintiffs in error against the city and the auditor, to enjoin the collection of an assessment for the improvement of Mercer street which had been levied on a lot owned by them on the corner of Vine and Mercer streets. It was shown by the petition that the ordinance providing for the improvement was passed by the board of legislation of the city February 8, 1897, and the ordinance providing for the payment of the costs, the issuing of the bonds, and the levying of the assessments, being ‘ levied and assessed on each abutting foot of the several lots of land bounding and abutting on Mercer street from Vine street to Walnut street,’ was passed by the board of administration October 12, 1897. The plaintiff had paid the installments for the years 1898, 1899, and 1900, and it was to restrain the collection of the balance that suit was brought.
The answer of the city contained the following averment, viz ‘ Further answering, the defendant says that the said assessment levied as described in the petition is in proportion to the special benefits conferred by the improvement of Mercer street on said property of the plaintiffs and each abutting foot thereof upon which said assessments were levied; that said assessments levied upon said property and each abutting foot thereof are not in excess of the special benefits conferred upon said property and each abutting foot thereof; that said special benefits do in fact, as to said property, and each abutting foot thereof fully equal the assessments levied thereon, and as to each parcel of land and each abutting foot thereof upon which the assessments for said Mercer street were levied, the assessments are in proportion to the special benefits conferred thereon by said improvement of said street.’
In the insolvency court a demurrer to this answer was sustained, and judgment awarded plaintiffs. On error the circuit court reversed this judgment and remanded the cause. The plaintiffs ask the reversal of the last judgment, and affirmance of that of the court of insolvency.
Syllabus by the Court
1. An owner of land which has been assessed for the improvement of a street is not entitled to an injunction restraining the collection of such assessment, where a statute in all material respects the same as the one under which the improvement was made and the assessment levied, and the bonds of the municipality to pay the cost issued, had theretofore been adjudged valid by the highest court of the state, simply because similar legislation was held by the same court long afterwards to be in violation of the Constitution.
2. An assessment for street improvements, otherwise lawful, is not rendered invalid because assessed in terms by the abutting foot, where it appears that the amount of the assessment did not exceed the special benefit to the land. Schroder v Overman, 55 N.E. 158, 61 Ohio St. 1,47 L.R.A. 156; Walsh v Barron, 55 N.E. 164, 61 Ohio St. 15,76 Am.St.Rep. 354; Same v. Sims, 62 N.E. 120, 65 Ohio St. 211.
Charles B. Wilby and Charles E. Tenney, for plaintiffs in error.
Charles J. Hunt and Albert H. Morrill, for defendants in error.
SPEAR, J. (after stating the facts).
Plaintiffs' action was based upon section 5848, Rev. St. 1892, which confers jurisdiction to enjoin the illegal levy or collection of taxes and assessments, and the grounds on which this assessment is claimed to be illegal are two: One, that the statute under which the assessment was made, being section 2264b, Bates' Ann. St., is unconstitutional, in that it deals with a subject of a general nature and has not a uniform operation throughout the state; in other words, that it applies only to Cincinnati. The other, that the method of assessment, being by the abutting foot, instead of according to benefits, renders the assessment void; but no claim is made that there is any want of notice of intention to improve, nor any irregularity in the passage of the resolutions or ordinances providing for the improvement.
We think neither proposition can be maintained. It is true that the section referred to is obnoxious to the late rulings of this court condemnatory of special legislation, but that conclusion by no means concludes the inquiry. The section, or the act of which it is a part, repeals former laws upon the subject; and, if the act in the particular complained of be unconstitutional, the repealing clause, by a well-understood rule, would also fall with it. It cannot be important to pursue this inquiry in detail, and thus settle upon the next preceding act which would meet the present view as to uniform operation. It is enough to say that the original Municipal Code, in its provision for special assessments (66 Ohio Laws, pp. 245-247), provides generally for street improvements ‘ by any city or incorporated village’ ; and, while the specific steps there provided are not precisely the same as those enjoined by the later acts including the act in question, yet the substance is the same. The later ones equally protect the rights of the landowner; and in this inquiry we are to be controlled by substantial considerations, and not by mere technicalities. Sections 2289, 2327, Rev. St. 1892.
But another consideration sufficiently answers the proposition. This improvement was made in the year 1897. Prior to that date legislation in its essential features identical with that which is here assailed had been...
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