Village of Norwood v. Baker, 34

CourtUnited States Supreme Court
Writing for the CourtHARLAN
Citation43 L.Ed. 443,19 S.Ct. 187,172 U.S. 269
Docket NumberNo. 34,34
Decision Date12 December 1898

William E. Bundy, for appellant.

Charles W. Baker, for appellee.

Mr. Justice HARLAN delivered the opinion of the court.

This case arises out of the condemnation of certain lands for the purpose of opening a street in the village of Norwood, a municipal corporation in Hamilton county, Ohio.

The particular question presented for consideration involves the validity of an ordinance of that village assessing upon the appellee's land, abutting on each side of the new street, an amount covering, not simply a sum equal to that paid for the land taken for the street, but, in addition, the costs and expenses connected with the condemnation proceedings.

By the final decree of the circuit court of the United States it was adjudged that the assessment complained of was in violation of the fourteenth amendment of the constitution of the United States, forbidding any state from depriving a person of property without due process of law, and the village was perpetually enjoined from enforcing the assessment. 74 Fed. 997.

The present appeal was prosecuted directly to this court, because the case involved the construction and application of the constitution of the United States.

It will conduce to a clear understanding of the case to ascertain the powers of the village under the constitution and statutes of Ohio, and to refer somewhat in detail to the proceedings instituted for the opening of the street through appellee's property.

By the constitution of Ohio it is declared: 'Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency imperatively requiring its immediate seizure, or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.' Const. Ohio 1851, art. 1, § 19, Bill of Rights; 3 Bates' Ann. St. Ohio, p. 3525.

Cities and villages in Ohio are by statute given power to lay off, establish, open, widen, narrow, straighten, extend, keep in order and repair, and light streets, alleys, public grounds, and buildings, wharves, landing places, bridges, and market spaces within the corporation, and to appropriate private property for the use of the corporation. And 'each city and village may appropriate, enter upon, and hold, real estate within its corporate limits for the following purposes, but no more shall be taken or appropriated than is reasonably necessary for the purpose to which it is to be applied: (1) For opening, widening, straightening and extending streets, alleys and avenues; also for obtaining gravel or other material for the improvement of the same, and for this purpose the right to appropriate shall not be limited to lands lying within the limits of the corporation. * * *' 1 Rev. St. Ohio 1890, § 1692, subds. 18, 33; Id. § 2232, pp. 429, 430, tits. 'Cities and Villages,' 'Enumeration of Powers'; Id. p. 572, tit. 'Appropriation by Cities and Villages of Private Property to Public Use.'

Other provisions of the statute prescribe the steps to be taken in the appropriation by a municipal corporation of private property for public purposes. Sections 2233 to 2261, inclusive.

It is further provided by the statutes of Ohio (Rev. St. 1890, c. 4, tit. 12, 'Assessments,' etc.) as follows:

'Sec. 2263. When the corporation appropriates, or otherwise acquires, lots or lands for the purpose of laying off, opening, extending, straightening, or widening a street, alley, or other public highway, or is possessed of property which it desires to improve for street purposes, the council may assess the cost and expenses of such appropriation or acquisition, and of the improvement, or of either, or of any part of either, upon the general tax list, in which case the same shall be assessed upon all the taxable real and personal property in the corporation.

'Sec. 2264. In the cases provided for in the last section, and in all cases where an improvement of any kind is made of an existing street, alley or other public highway, the council may decline to assess the costs and expenses in the last section mentioned or any part thereof, or the costs and expenses or any part thereof of such improvement, except as hereinafter mentioned, on the general tax list, in which event such costs and expenses, or any part thereof which may not be so assessed on the general tax list, shall be assessed by the council on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in proportion to the benefits which may result from the improve- ment, or according to the value of the property assessed, or by the front foot of the property bounding and abutting upon the improvement, as the council, by ordinance setting forth specifically the lots and lands to be assessed, may determine before the improvement is made, and in the manner and subject to the restrictions herein contained; and the assessments shall be payable in one or more instalments, and at such times as the council may prescribe. * * *' 1 Rev. St. Ohio, p. 581.

Section 2271 provides: 'In cities of the first grade of the first class, and in corporations in counties containing a city of the first grade of the first class, the tax or assessment especially levied or assessed upon any lot or land for any improvement, shall not, except as provided in section 2272, exceed twenty-five per centum of the value of such lot or land after the improvement is made, and the cost exceeding that per centum shall be paid by the corporation out of its general revenue; * * * and whenever any street or avenue is opened, extended, straightened, or widened, the special assessment for the cost and expense, or any part thereof, shall be assessed only on the lots and lands bounding and abutting on such part or parts of said street or avenue so improved, and shall include of such lots and lands only to a fair average depth of lots in the neighborhood, but shall also include other lots and parts thereof and lands to such depth; and whenever at least one-half in width of any street or avenue has been dedicated for such purpose from the lots and lands lying on one side of the line of such street or avenue, and such street or avenue is widened by taking from lots and lands on the other side thereof, no part of the cost and expense thus increased [incurred] shall be assessed upon the lots and lands lying on said first-mentioned side, but only upon the other side, and as aforesaid, but said special assessment shall not be in any case in excess of benefits.' 1 Rev. St. Ohio, p. 586.

Section 2272 relates to assessments for improvements made in conformity with the petition of the owners of property.

By section 2277 it is provided that 'in cases wherein it is determined to assess the whole or any part of the cost of an improvement upon the lot or lands bounding or abutting upon the same, or upon any other lots or lands benefited thereby, as provided in section 2264, the council may require the board of improvements, or board of public works, as the case may be, or may appoint three disinterested freeholders of the corporation or vicinity, to report to the council an estimated assessment of such cost on the lot or lands to be charged therewith, in proportion, as nearly as may be, to the benefits which may result from the improvement to the several lots or parcels of land so assessed, a copy of which assessment shall be filed in the office of the clerk of the corporation for public inspection.'

Section 2284 is in these words: 'The cost of any improvement contemplated in this chapter shall include the purchase money of real estate, or any interest therein, when the same has been acquired by purchase, or the value thereof as found by the jury, where the same has been appropriated, the costs and expenses of the proceedings, the damages assessed in favor of any owner of adjoining lands and interest thereon, the costs and expenses of the assessment, the expense of the preliminary and other surveys, and of printing, publishing the notices and ordinances required, including notice of assessment, and serving notices on property owners, the cost of construction, interest on bonds, where bonds have been issued in anticipation of the collection of assessments, and any other necessary expenditure.'

By an ordinance approved October 19, 1891, the village declared its intention to condemn and appropriate, and by that ordinance condemned and appropriated, the lands or grounds in question for the purpose of opening and extending Ivanhoe avenue; and, in order to make such appropriation effectual, the ordinance directed the institution of the necessary proceedings in court for an inquiry and assessment of the compensation to be paid for the property to be condemned.

The ordinance provided that the cost and expense of the condemnation of the property, including the compensation paid to the owners, the cost of the condemnation proceedings, the cost of advertising, and all other costs, and the interest on bonds issued, if any, should be assessed 'per front foot upon the property bounding and abutting on that part of Ivanhoe avenue, as condemned and appropriated herein.'—the assessments payable in 10 annual installments, if deferred, and the same collected as prescribed by law, and in the assessing ordinance thereafter to be passed.

Under that ordinance, application was made by the village to the probate court of Hamilton county for the impaneling of a jury to assess the compensation to be paid for the property to be taken. A jury was accordingly impaneled, and it assessed the plaintiff's...

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