
    City of Cincinnati v. James et al.
    
      Assessment for street improvement — Excess above amount allowed by law — Collection may be enjoined.
    
    1. When an assessment for a- street improvement, whether payable in installments or not, is larger than allowed by law, and sufficient has been paid, though voluntarily, to equal or exceed the amount which could be lawfully assessed, the collection of the remainder of such assessment may be enjoined.
    2. In such case the action is not to recover payments already made, but to prevent the collection of unpaid illegal installments.
    (Decided October 20, 1896.)
    Error to the general term of the Superior Court of Cincinnati.
    The plaintiffs below, defendants in error here, own two lots in the city of Cincinnati, one of which fronts thirty-five feet on Eighth street, and abuts lengthwise 105 90-100 feet on Baymiller street; the other lot fronts thirty-five feet on seventh street, and abuts lengthwise 105 90-100 feet on Baymiller street.
    
      By order of the city, Baymiller street was improved, and the cost assessed upon the property by the foot front; and in making such assessment the city assessed each foot of said lots abutting on Baymiller street, instead of assessing only thirty-five feet of each lot, which is the frontage of the lots respectively on Seventh and Eighth streets, according to the rule laid down in the Haviland case, 50 Ohio St. 471.
    The city ordered the assessment to be paid in ten annual installments. The plaintiffs below paid six installments amounting to $475.54, and then began this action to enjoin the collection of the other four installments, claiming that they had already paid more than the full amount of any assessment which the city could legally make on said lots for the improvement.
    The court found that the ten installments, when made on only the thirty-five feet of each lot, amounted to only $255.00] and as more than that sum had already been paid, the court granted the prayer of the petition, and enjoined any further collections.
    The city claimed that the six payments already made, were voluntary payments, and that the adjustment, under the rule in the. Haviland case, should be only as to the unpaid four installments, and to test that question brought this case here on error, seeking to reverse the judgment of the general term.
    
      Frederick Hertenstein and W. H. Whittaker, Corporation Counsel, for plaintiff in error.
    
      John Gal/oin and M. L. Galvin, for defendants in error.
   By the Court:

The action below was for the purpose of enjoining the collection of the four unpaid installments oí the assessment and not to recover back any part of the six assesments which had already been paid. The- fact that these six assessments had been paid voluntarily, therefore is of no importance in the cáse. The plaintiffs below paid $220.54 in excess of the full amount of a legal assessment for the improvement, b.ut they are not seeking to recover back this excess, but only to enjoin the collection of the other four installments. They paid the city all they owed and more, and should not now be required to pay still more. As soon as the city received payment to the full extent to which it had power to make a legal assessment for the improvement, its power of further collection was gone, and it would make no difference how the illegality in -the assessment arose, whether by overestimate, as in the case of Pike v. Cummings, 36 Ohio St., 213, or by mistake in calculations, as in Groesbeck v. Cincinnati, 51 Ohio St., 365, or'by a wrong construction of a statute as in this case, or by any other cause. Neither can it make any difference that the payments are made by installments. No more installments can be collected than equal the amount of an assessment made according to law. The case of Pelton v. Bemis, 44 Ohio St., 51, was an action to recover back an illegal assessment, while this is an action to enjoin the collection of such assessment. The distinction between the two is manifest. There is no error in the record.

Judgment affirmed.  