
    Erasmus Gest v. The City of Cincinnati et al.
    1. Suit may bo brought in the name of the municipal corporation for the collection of special assessments imposed for the improvement of streets. Sections 546 and 547 of the municipal code, authorizing suits to be so brought, are not repealed by the seventh clause of section 562 as amended.
    2. Where the work of improving a street has been duly performed and accepted by the municipality, the arrangements that may have been entered into between the contractor and third parties for the performance of the contract, are immaterial as respects the liability of the lot-owners-
    3. Where the assessment proceedings are found defective, in ascertaining the amount properly chargeable against the lot-owner, under section 550 of the municipal code, interest may be allowed from the time fixed for the payment of the assessment.
    -4. The provision of the statute making iot-owners liable personally for such assessments is not unconstitutional. Hill v. Higdon, 5 Ohio St. 243, approved and followed.
    
      ■ Motion for leave to file a petition in error to reverse the-judgment of the District Court of Hamilton county.
    The original petition in this case was filed in the name of the city of Cincinnati, for the use of George M. Gardner and W. H. Malone, partners under the firm name of George M. Gardner & Co., against Erasmus Gest, plaintiff in error,, and others, to recover an assessment for the improvement of "West Eighth street.
    The controversy in this case is in regard to the assessment made upon the property of the plaintiff in error abutting on the street. The object of the petition was to enforce the assessment lien, and to obtain a personal judgment for the amount due.
    The contract for doing the work was entered into between the city and George M. Gardner & Co.; and the-work having been performed in accordance with the contract, it was duly accepted by the city.
    On the trial, it was found that the proceedings ordering' the improvement were defective; and the court, under section 550 of the municipal code, found the amount properly chai’geable against the plaintiff in error, and rendered a judgment against him therefor. The amount was also found to be a lien on the property, and, on default of payment, a sale was ordered.
    A corporation known as the Exposition Park Association -was, during the progress of the suit, made a defendant, and, it is said, filed a cross-petition in which it claimed to be the assignee of the contract, under an assignment from Gardner & Co.; that it performed all the work, and furnished the materials required by the contract, and was entitled to receive the compensation to be paid therefor. No such pleading is found among the papers, nor is there any reference to it found in the final decree or judgment of the court.
    The contract between the city and Gardner & Co. was, entered into on the 11th day of May, 1872. The plaintiff in error sets up by way of defense, in substance, that Gardner & Co., on the 9th day of July, 1872, assigned the contract to the Exposition Park Association, and that the association actually furnished all the materials and did all-the work under the contract; that neither the plaintiff nor the said Exposition Park Association ought to recover for the work and material, because, as he alleges, the said association was “ incorporated for the purpose of constructing a park for holding fairs, festivals, and public meetings, and for no other purpose whatsoever; that said association had no right or authority whatsoever to become the assignee of said Gardner & Co. for the purpose of performing the work of grading Eighth street, nor was it authorized in .law to perform or carry out said contract.”
    The matter thus set up was adjudged to be no defense.
    The grounds of error relied on are stated in the opinion,
    
      Hoadly, Johnson $ Colston, for plaintiff in error:
    I. The city could not have instituted the suit in its own ■name and for its own benefit.
    Section -547 of the municipal code, and section 562, as •amended, 67 Ohio L. 80, 81, are apparently inconsistent. As the law originally was, the city had to pay in cash for. .all improvements, and, of course, having to pay, it had the right, as provided by section 547, to recover the amount so paid, by action in its own name; but when the law was . amended, and the city had the right to pay the contractor by the assignment of the assessment itself; the city thereby being relieved from the obligation of paying in cash, all interest of the city ceased in the collection of the assessments, and the action should be by the real party in interest, as is provided by the code as to all other kinds of actions.
    II. The plaintiff was not entitled to recover interest. ' The original demand on the defendant was to pay an assessment, and failing to do so, suit was brought. At the trial, it was admitted that the assessment was void, and the court so charged the jury. In such case, in an ordinary action at law, the defendant would have been entitled to judgment; but, under the provisions of the municipal code, in such class of cases, the court proceeded to ascertain the value of the work) and rendered judgment for the same.
    "We claim that when the plaintiff demanded payment of the assessment, the same being void, the defendant was legally right in refusing payment, and was only liable for the value of the work when such value had been ascertained in the-manner provided by the municipal code, and until that was done, the plaintiff did not know the amount he was entitled to claim. And defendant could not be chargeable with interest until plaintiff knew how much was demandable from the defendant.
    III. As to the unconstitutionality of the final decree—
    We claim the broad doctrine that a personal judgment can not be given to enforce a personal assessment; that all the relief that can be afforded is an order for the sale of the land which is subject to the lien of the assessment.
    Any other rule would be harsh, unjust, and inequitable, and might lead to the confiscation of one’s entire estate. That such a thing is possible, is enough in itself to condemn such a construction of the law. True, under the present statute, this could not be done; but the statute may at any time be repealed.
    Upon this point, the courtis referred to Taylor v. Palmer, 81 Cal. 240; Gity of St. Louis v. Allen,- 58 Mo. 44.
    
      Wulsin ‡ Perkins, for defendant in error :
    I. The plaintiff in error was not entitled to a judgment non obstante veredicto, as his counsel claim. Municipal code,, sections 546, 547, and section 27, code of civil procedure.
    The sections of the'codes above cited were not repealed or amended, and they continue to apply to all cases as to how suits should be brought—viz., in the name of the corporation—and section 562 of the municipal code as amended, does not affect this case.
    II. Interest was properly allowed.
    The assessment made was not void; it was only irregular. But this irregularity did not take away the right of the city to assess for the improvement, nor the right to enforce the assessment for the amount properly chargeable. Upington v. Oviatt, 24 Ohio St. 232.
    On trial it was found that defendant was indebted for the full amount demanded. And we claim that he became indebted by the passage of the assessment, and such indebtedness, by the ordinance o'f assessment, was payable within twenty days, and interest was properly allowed after that time.
    ITL As to the uneonstitutionality.
    We submit that a municipal corporation, when improving a street, has the right to call upon the owner of abutting property to pay his share of the expense; that this he is individually bound to do, and that the lien on the land is only cumulative, and does not take away the individual liability. The legislature, in limiting the right to assess, was not bound to limit it to twenty-five per cent, of the abutting property, but might have left the right to assess without limit, in which case the owner of the abutting property would have been bound to the full extent of his proportionate share of the expense incurred.
   White, J.

The first question raised as a ground of error”» is, whether the action can be maintained in the name of the city for the use of the contractor.

This question depends upon whether sections 546 and 547-of the municipal code, which expressly authorize the suit to be brought in the name of the city, have been repealed by the seventh clause of section 562 as amended. 67 Ohio L. 80, 81; 70 Ohio L. 83.

The original clause, as found in the code, was as follows:

“ The contract shall be between the corporation and the bidder, and the corporation shall pay the contract price for the work, when it is completed, in cash.” The same language is contained in the amendment; but a proviso is added, declaring “ that the contract pi’ice may be paid in assessments, as the council in its discretion may have previously determined.”

There is no necessary repugnancy between the authority given in the sections referred to, authorizing suit to be brought in the name of the corporation, and the authority conferred on the council by the amendment to pay for the work in assessments. Both provisions can stand and have effect, and when such is the case, they should both be held to bo still in force.

Nor is the right of the city to maintain the action for the use of the contractors, Gardner & Co., affected by the matter set up in regard to the Exposition Park Association. Assuming it to be true, as alleged, that the park association had no corporate capacity to take an assignment of the contract, or to undertake the performance of the work, that is a question between Gardner & Go. and the association, and does not concern the city or the plaintiff's in error. Gardener & Go. bound themselves to the city for the performance of the work, and the work was duly performed and accepted. It was therefore wholly immaterial, both to the city and the lot-owners, through what agencies Gardner & Co. effected the performance of the contract.

The second ground of complaint is that interest was allowed on the amount found to be properly chargeable ^against the plaintiff in error from the time fixed by the ordinance for the payment of the assessment.

No penalty was allowed, and it is claimed that, on the same principle that the penalty was refused, interest also ought to have been.

Where compensation is to be made for property or services, and delay has occurred in obtaining payment, interest is a recognized element in assessing the value. The amount found to be chargeable against the plaintiff in error, was equal to the amount of the assessment, and we see no valid objection to the allowance of interest. If the city had contracted to pay for the work in money, she would have been liable to the contractor for interest after the payments became due; and if, under section 550, the amount was properly chargeable on the property, she would, notwithstanding the defect in the proceedings, have been entitled to interest. The claim of the contractor in the present cas® is equally good.

The remaining ground of error alleged is that the provision of the municipal code authorizing a personal judgment against the lot owner for an assessment is unconstitutional.

This question -was decided by this court against the objection in Hill v. Higdon, 5 Ohio St. 243. The action in that case was in personam, and the judgment was affirmed on the ground that the statute creating the liability was constitutional.

The statutes conferring the power of assessment on municipal corporations, have uniformly, in this state, so far as we have observed, authorized the assessment against the person as well as the property, and a remedy against both for its enforcement.

The decision in Hill v. Higdon, has been followed in numerous subsequent cases, and is in accordance with the current of authority in other states.

"We have examined the two cases cited in argument to the contrary, Taylor v. Palmer, 31 Cal. 241, and the City of St. Louis v. Allen, 58 Mo. 44, and we discover nothing in them to justify the overruling of the former decisions of this court. In Taylor v. Palmer, there were two dissents. The learned and able opinion of Sawyer, J., is found separated from the report of the case, On page 666 of the volume.

It does not follow from the fact that if a personal liability for the assessment may be imposed on the owner; which maybe enforced against his other property, that such liability will be unlimited, and may exceed the value of the property assessed. Nor does it follow from the fact that the assessment is authorized that it may be enforced to the full value of the property to which it relates. Neither the constitutional provision nor the legislation on the subject contemplates such a result.

The constitution requires the power to be restricted so aa to prevent its abuse; and present legislation restricts its exercise to twenty-five per centum of the value of the property assessed.

In the case of the N. I. R. R. Co. v. Connelly, 10 Ohio St. 166, in speaking of cases where the assessment is claimed to be excessive, it is said, if no fraud intervene, and the assessment does not substantially exhaust the owner’s interest in the land, his remedy would seem to be to procure, by a timely appeal to the city authorities, a reduction of the special assessment.” . . .

The constitutionality of the assessment would not seem to depend on its enforcement being limited to the particular property in reference to which it is made, but rather upon the .nature and extent of the demand.

The right of the owner to all his property is equally entitled to constitutional protection. If a liability may be created and charged upon a specific parcel of property while owned by a particular individual, there would seem to be no constitutional objection to legislation which authorizes the enforcement of the demand against other property of the owner through the means of a personal action.

JLeave refused.

"Welch, C. J., Rex, Gilmore, and McIlvaine, JJ., concurred.  