
    Parsons v. City of Columbus.
    
      Assessments for local improvements—Constitutional law—Powers of municipality.
    
    1. The courts of the state have no power to declare a statute conferring the power of assessment on municipal corporations of a certain grade and class, for the improvement of their streets, invalid, on the ground that the statute does not adequately restrict the power so as to prevent abuse. The duty imposed by section 6, article 13, of the constitution, is, in this regard, addressed to the conscience and judgment of the legislature, and is not the subject of judicial correction.
    2. The act passed May 11, 1886, known as the “ Taylor Law,” authorizing cities of the first grade, of the second class, to improve their streets in a certain manner, and with certain material (83 Ohio Laws, 140), and the act amendatory thereto, passed March 21, 1887 (84 Ohio Laws, 176), are valid statutes.
    3. A property holder on a street cannot, by voluntarily making an . improvement in the street, suitable to his own convenience, pre- ' elude the city, through its council, from improving it in a manner authorized by statute, and required by the wants of the public and others upon the same street.
    (Decided June 20, 1893.)
    ERRor to the Circuit Court, of Franklin county.
    The facts are stated in the opinion.
    
      Harrison & Olds, for plaintiff in error.
    I. The act of the general assembly under color of which the council ordained said part of Town street to be “surfaced with asphalt,” did not authorize the passage of the ordinance. The ordinance derives no support from the act. The nature and extent of the power are clearly defined. The power given is to provide for the paving of unpaved streets. The act gives to the council no power to pave a paved street.
    II. Merely spreading over the surface of a street already actually paved with “permanent material,” and which is in good condition for use as a public street, is not paving such street, within the meaning of said act. It follows as a corollary that the ordinance directed a thing to be done which was not contemplated nor provided for in the act. It is evidently not within the terms of the power granted. Wistar v. Philadelphia, 80 Pa. St., 505.
    Nothing is better settled than the words of a statute assuming to grant the authority to levy local assessments will not be extended by construction; for, as against the corporation asserting the authority, the construction is strict, and nothing in its favor will be intended, except such matters as are clearly implied upon the express words of the statute. Zanesville v. Richards, 5 Ohio St., 589; Walker v. District of Columbia, 12 Cent. Rep., 408; City v. Murphy, 3 S. E. Rep., 326; Read v. City of Toledo, 18 Ohio, 161; Heine v. Levee Co., 19 Wallace, 655; Vances. Little Rock, 30. Ark., 439; Caldwell v. Rupurt, 10 Bush., 182; R. R. Co. v. Alexandria, 17 Gratt., 176; State v. Hoboken, 33 N. J. L., 280; Chamberlain v. Cleveland, 34 Ohio St., 551, 561, 562; Griswold v. Pelton, 34 Ohio St., 482; Matter of Second Ave. Church, 66 N. Y., 395; Niklaus v. Conklin, 118 Ind., 289.
    III. The ordinance directing that the cost and expense of surfacing with asphalt the roadway of that part of Town street described in the ordinance, be assessed upon the property abutting thereon, is unauthorized and void, as imposing a local assessment for work which is for the general public benefit; that is, to give a smoother surface to the street, and thereby make a pleasure drive for the general public, the street being already in good condition for use as a public highway. Hammett v. Philadelphia, 65 Pa. St., 146; In the Matter of Canal Street, 11 Wend., 155; Creighton v. Munson, 27 Cal., 613; Chamberlain v. Cleveland, 34 Ohio St., 551; Hare, Am. Const. Raw, 305, 308, 310.
    When the street has once been opened and put in a condition for public use, the power is exhausted; or, to speak more accurately, there is no such local or peculiar advantage from subsequent alterations or repairs as will justify the imposition of the cost on the adjacent lands, and it must consequently be defrayed by the community as a whole.
    For like reasons, while the owner of an abutting lot may be required to grade his sidewalk in conformity to the grade ■of the street as originally established, he is under no obligation to raise it subsequently for the purpose of bringing it to a level with the roadway.
    IV. If spreading a coat of asphalt over the surface of said part of Town street, is “paving” the same, within the meaning of said act of May 11, 1886, then the general assembly, by passing that act, violated section 6, article XIII, of the constitution of this state, for the reason that the act confers upon the council of the city of Columbus authority which constitutes “abuse of the power” of assessment, in that it authorizes the council to levy special assessments to defray the cost of placing an additional pavement upon the surface or top of an existing pavement in any street, although the latter pavement is in good condition for use as a public street, and such additional pavement is wholly unnecessary. Whenever the power of assessment is given to cities, said provision of the constitution requires the grant to be so restricted as that no authority can be exercised under it which will constitute an abuse of the power of assessment, and thus deprive the citizen of the protection which is guaranteed to him bj^ said section of the constitution. To hold that an act of the general assembly which empowers cities to exercise the power of assessment under such circumstances, and in such a way as to constitute an abuse of the power, when the constitution expressly restrains the general assembly from doing so, must be flatly absurd. Malloy v. City of Marietta, 11 Ohio St., 638; Northern Indiana R. R. Co. v. Connelly, 10 Ohio St., 165; Section 6, of article XIII, of the constitution; Foster v. The City of Kenosha, 12 Wis., 616; People v. Mahaney, 13 Mich., 498; Cooley, Constitutional Limitations, (5th ed.) 93, 99; Varney v. Justice, 6 S. W. Rep., 457.
    
      Paid Jones, city solicitor, and John J. Stoddard, for defendant in error.
    I. Two facts in this case are manifest: First—that the city never undertook to improve this portion of Town street prior to 1888—the former improvement was made by plaintiff. Second—That the city never attempted to levy an assessment on plaintiffs property abutting on this portion of the street for street improvement purposes, prior to the making of the improvement under the Taylor law. It would be against public policy to hold that an abutting property holder by his own act in making such an improvement on the street as he might elect, deprived the city of its power of assessment.
    The language of this law is very broad. It would have been impossible for the legislature to have used language more comprehensive. It in no wise places a restriction upon the power of the city to determine what streets and' avenues shall be paved. Any street or avenue may be paved under this law, whether new or old, whether paved before or not.
    There is a distinction between this case and an ordinary case of repaving. The cases that have arisen where the authority of the corporation to repave was'questioned, arose where the city removed one pavement and replaced it with another. The weight of authority is decidedly in favor of the power of municipal corporations to repave and to assess the costs of the last pavement on the abutting property owners. Williams v. Detroit, 2 Mich., 560; Sheley v. Detroit, 45 Mich., 431; Wilkins v. Detroit, 46 Mich., 120; McCormick v. Patchin, 53 Mo., 33; Gurner v. Chicago, 40 Ill., 165; Kokomo v. Mahon, 100 Ind., 242; Jelliff v. Newark, 48 N. J. L. (19 Vroom), 101; Municipality v. Dunn, 10 La. An., 57; Farrar v. St. Louis, 80 Mo., 379; Estes v. Owen, 90 Mo., 113; Gall v. Cincinnati, 18 Ohio St., 563.
    II. It is alleged in the amendment to the petition that the Taylor law is a “ special act conferring corporate powers,” and is therefore in conflict with article XIII, section 1, of the constitution. This question has been so frequently before this court, and is so thoroughly understood by the bench and bar, that it is unnecessary to spend time discussing it here.
    III. The plaintiff claims that the Taylor law is in conflict with article II, section 16 of the constitution in that it amends several sections of the Revised Statutes but does not contain the section so amended nor does it repeal the sections amended. The same question was raised in the case of the State of Ohio ex rel. the Attorney General v. 
      Wall et al., decided at the April term of this court, 1890.
    IV. It is alleged that the Taylor law is in conflict with article XIII, section 6 of the constitution, because it does not restrict the power of assessment. It is not necessary to restrict the power of assessment in all laws providing for municipal assessment, in order to make them harmonize with this provision of the constitution. Only in those laws in which there may be an abuse of the power of assessment is it necessary to place a restriction. It would be vain to place a restriction in law, providing for an assessment, in which there would be no abuse of the power of assessment. The power of assessment under the Taylor law cannot be abused. It is not necessary to limit the power of assessment in a case where there can be no; abuse of it. The assessment that is exacted by this law is taken from the real estate, over which the owner has absolute dominion, and is transferred to the street in front of the property, in which the owner has a special property interest.
    But there are limitations upon the power of assessment under this law. The cost of the improvement of but one street can be assessed upon the real estate abutting on that street.
    Another restriction placed upon the power of assessment under this law is found in the provision that the city is limited to the collection of one-eighth of the assessment during any one year. The assessment must be distributed over at least eight years. It may be more.
    A corporation is also required to adopt a resolution by a two-thirds vote, declaring the necessity of making such an improvement; it is also required to pass an ordinance by a like vote, providing for the improvement. The corporation must give the property owners written notice of its intention to make the improvement. It must publish the resolution and ordinance in a newspaper of general circulation in the corporation. These are all restrictions upon the power of assessment. Maloy v. The City of Marietta, 11 Ohio St., 636; Hill v. Higdon, 5 Ohio St., 243.
    This provision of the constitution is directory only. It is not necessary in the organization of municipal governments to satisfy this provision of the constitution, that all. laws providing for assessments should contain a limitation upon the power of assessment. If some of the laws contain a limitation—those under which there is liable to be an abuse of power—this provision of the constitution is satis- . fied.
   Minshall, J.

On May 11, 1886, the legislature passed an act known as the “Taylor Raw,” conferring authority upon the councils of cities of the first grade, of the second class, “to cause any .of the streets or avenues or parts thereof of said city to be paved with granite or other stone block, asphalt or other permanent material, * * * and to provide that said improvement shall be paid for and assessed upon the property abutting on the same in accordance with the various provisions of this supplement and in accordance with the various provisions of law enacted, or hereafter enacted, applicable thereto, and not inconsistent with this act,” and, for the payment of the cost and expense, further authorized the issuing of the bonds of the city, to be paid from assessments on the property authorized to be assessed, “to extend over a period of at least eight years, to be provided in the ordinance directing the improvement.”

The act was amended March 21, 1887, by a provision that section 2270, Revised Statutes, should not apply to improvements under this act. 83 Ohio Raws, 140; 84 Ohio Raws, 176. On March 26,1888, the city council of Columbus—a city of the first grade, of the second class—(State v. Wall, 47 Ohio St., 499), having taken the necessary preliminary steps, passed an ordinance for the improvement of Town street from Parsons avenue to Parsons’ east line, by surfacing the roadway with asphalt, and resetting the curb, the payment of the cost of the improvement by the issuing of bonds, and for the assessment of an amount to meet the bonds equally upon the property “fronting or abutting” on the improvement “by the foot front.”

On May 5, 1888, the action below was commenced by the plaintiff, George M. Parsons, in the court of common pleas, to enjoin the making of the improvement proposed by the ordinance, on the ground that the improvement was not authorized by the law—that part of the street having, as averred, been already improved by himself in a substantial manner, with “round cobblestones,” laid in sand, and pounded solid, on a foundation that had been suitably prepared. A demurrer having been sustained to the petition, it was amended by making various constitutional objections to the validity of the act of the legislature, to which a demurrer was also sustained. A supplement was then filed, setting up the completion of the work, the making of the assessments on his property, and asking that their collection be enjoined. A demurrer to this was also sustained, and an appeal taken to the circuit court, where the same rulings were made on the different pleadings, and the petition dismissed. These rulings are assigned for error here.

It seems very clear to us that the improvement that had been made in Town street by the plaintiff prior to the act authorizing cities of the grade and class of Columbus to improve any of their streets and avenues, or parts thereof, with granite or other stone-blocks, or with asphalt or other permanent material, did not preclude the city from so improving the part of Town street that had been improved with cobblestone by the plaintiff. So far as appears from the petition, the improvement made by the plaintiff was a voluntary act on his part, and could not, therefore, estop the city, through its council, from making an improvement of the character provided for by the act of May 11, 1886, and assessing the cost thereof on the property abutting on the improvement. However substantial this improvement may have been, it was for the council to determine, in the exercise of the authority given by the act, whether it ansswered the requirements of the public at this time, and whether the street should be improved with the material, and in the manner, authorized by the act. It' cannot be allowed that one property holder on a street can, by voluntarily making an improvement in the street, suitable to his own convenience, preclude the city from improving it in a manner required by the wants of the public and others upon the same street. The control of the streets is placed in the city, to be exercised for the public convenience; and no citizen can, by any act of his own, impair the authority so conferred.

The ground on which the validity of the act of May 11, 1886, is principally challenged, is that it contains no restriction on the power of assessment conferred by it, as required by the constitution. That instrument provides (article 13, § 6) that: “The general assembly shall provide for the organization of cities and incorporated villages, by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent the abuse of such powers.” Many of the other states have provisions in the fundamental law of each, substantially, if not identically, the same as our own; and the language of our own seems to have been copied from that of the state of New York. The injunction, it will be observed, applies as well to the power of taxation, of borrowing money, of contracting debts, and loaning their credit, as to the power of assessment, and is no more imperative in the one case than in the others. It has engaged the attention of some of our ablest courts and judges, and all, with a remarkable concensus of opinion, have held that, while it is a most salutary provision, it is addressed to the conscience and judgment of the legislature, and is not a subject for “judicial correction.”

Judge Dillon, after quoting the language in the constitution of the state of New York, and observing that it is substantially contained in the constitution of several of the states, says: “This obviously enjoins upon the legislature the duty of providing suitable and proper restrictions upon the enumerated powers; but in what these restrictions shall consist, and how they shall be imposed, are subjects left to the discretion or sense of duty of the legislative department, with the exercise of which the courts cannot interfere.” 1 Dill. Mun. Corp., § 50. Judge Cooley adopts the same construction, his language being that: “These requirements, however, impose an obligation upon the legislature, which only its sense of duty can compel it to perform. It is evident that if the legislature fail to enact the restrictive legislation the courts have no power to compel such action.” Cooley, Const. Rim. 636. See, also, Cooley, Tax’n, 845. The following are some of the cases in the other states in which this provision in the constitution of each has been construed, and held not to confer any power of judicial correction. Bank of Rome v. Village of Rome, 18 N. Y., 38, affirmed in re Village of Rhinebeck, 82 N. Y., 621; People v. Mahaney, 13 Mich., 482, opinion by Cooley, J. ; Hines v. City of Leavenworth, 3 Kan., 186; City of Newton v. Atchison, 31 Kan., 151, 1 Pac. Rep., 288; State v. City of Madison, 7 Wis., 688; Weeks v. City of Milwaukee, 10 Wis., 242.

In Foster v. City of Kenosha, 12 Wis., 617, the Supreme Court of Wisconsin has been regarded as holding a somewhat opposite view. But all that the court there decided is that the legislature cannot confer an unlimited power upon a city to raise monejr by taxation; it must be limited to municipal purposes, and because, in the judgment of the court, the statute it was then considering conferred such unlimited powers, it was held invalid. The case stands alone, and has been virtually overruled by the Supreme Court of the United States in City v. Lamson, 9 Wall., 477, on the ground that it is inconsistent with the previous decisions of the same court, cited supra. 1 Dill. Mun. Corp., § 50.

But, so far as the case before us is concerned, we need not go beyond the former decisions of this court. Hill v. Higdon, 5 Ohio St., 243; Railroad Co. v. Connelly, 10 Ohio St., 159; Maloy v. City of Marietta, 11 Ohio St., 636; Walker v. City of Cincinnati, 21 Ohio St., 14, 46.

It cannot be said that the act in question contains no restrictions upon the power granted to cities of the first grade, of the second class. The power granted is to improve their streets and alleys in a certain manner, and to assess the cost of the improvement upon property abutting upon the same in accordance with its provisions, and “the various provisions of law now enacted * * * and not inconsistent with this act.” Now, there are manjr provisions in the law regulating “ assessments in general,” not inconsistent with the act, and therefore applicable to improvements made under it. The necessity of the improvement, when deemed necessary, must be declared by resolution, and twenty days’ written notice of its passage must be given to owners of property abutting upon it, and the resolution must then be published for not less than two weeks in some newspaper of general circulation in the corporation. Section 2304, Revised Statutes. As the cost of the improvement is, by the act, to be assessed upon “abutting property,” no improvement can be made under it “ without the concurrence of two-thirds of the whole number of the members elected to the council,” unless two-thirds of the owners to be charged petition in writing therefor. Section 2267. And for a like reason, by section 2264, the council must, by ordinance, set forth specifically the lots and lands to be assessed, which, by section 1695, must be published in some newspaper of general circulation in the corporation before going into effect. By the act itself, assessments are confined to “ abutting property;” the bonds issued to pay for the improvement must be made, by the ordinance directing the improvement, to extend "over a period of at least eight years;” and the assessments shall be made payable in equal installments to meet the bonds. It then appears that the power of assessment conferred by this act is subject to many restrictions contained in the act itself, and in the general law on the subject of assessments, that are applicable to it. They may not be as adequate to the prevention of abuses as they should be, but such inadequacy “lays no foundation for judicial correction.” Hill v. Higdon, supra. In Maloy v. City of Marietta, the validity of an assessment for a street improvement under the towns’ and cities’ act of May 3, 1852, and its amendments, was questioned on the ground that the legislature, in granting the power, had not so restricted it as to prevent abuse; the principal objection being that it contained no limitation upon the amount that might be assessed. Judge Peck, in delivering the opinion, doubting whether, if the act conferred an unrestricted power, courts could for that reason hold the statute invalid, and citing the language of Judge Ranney in Hill v. Higdon, said: “Be this as it ma3?, the section, while it imposes the duty, leaves to the legislature the power to determine the mode and manner of the restriction to be imposed.” And the requirement of the act, that no improvement, the costs of which are to be assessed upon the owners of abutting propertjq shall be made without the concurrence of two-thirds of the members elected to council, or unless two-thirds of the owners to be charged petition therefor in writing, was held to be a restriction; and, whether adequate or not, the court said, “Further remedy must be left where, we conceive, the constitution has placed it—in the prudence and sagacity of the law-making power.” To this we may add what is said by Judge Scott in Walker v. City of Cincinnati: “It is very clear that this constitutional mandate cannot be enforced according to judicial discretion and judgment. In the very nature of the case, the power which is to impose restrictions so as to prevent abuse must determine what is an abuse, and what restrictions are necessary and proper.”

Importance is attached to language used by Judge White in Cincinnati v. Oliver, 31 Ohio St., at page 374, “That the granting of the assessment, and the duty of restricting its exercise so as to prevent abuse, are made inseparable by the express provision of the constitution.” This is not questioned. But as to where the duty rests, and whether subject to judicial correction, were not presented nor considered in the case.

It is also claimed that Maloy v. City of Marietta, should be overruled, as wrongly decided, and inconsistent with Chamberlain v. Cleveland, 34 Ohio St., 551. We do not think that it was wrongly decided', and the claim that it is inconsistent with Chamberlain’s case is a misapprehension of that case. The question there considered and passed on by the court was not the validity of the statute, but the validity of the proceedings had under it. The proceedings were held invalid for want of conformity to the law, in apportioning the assessment, and the cause remanded for the making of a new one.

Other objections have been made to the validity of the statute; but, after carefully considering them, we find none that would warrant the court in holding the law to be unconstitutional.

Judgment affirmed.

Dickman and BuriíET JJ., dissent from the first and second propositions of the syllabus.  