
    No. 471
    EVANS (Treas.) v. HELLWARTH
    No. 19776.
    Supreme Court
    On motion to certify.
    Dock. Apr. 16, 1926.
    1053. ROADS AND HIGHWAYS — Does the lling of an application by the adjacent land owners for the improvement of a Main Market Road, its acceptance by County Commissioners, and application to the State Highway Department for state aid the building of the portion of the road petitioned for under the direction of the Highway Department, the County Commissioners cooperating therewith, make the petition of the land owners a pending proceeding as to the entire road petitioned for?
    Attorneys — Loree & Kloeb for Treasurer; J. F. Raudabaugh for defendant; all of Celina.
   This action was brought originally in the Mercer County Common Pleas by David Hellwarth against S. L. Evans Treasurer of Mercer County for a permanent injunction against Evans restraining him from the collection of a certain assessment.

It appears that in February 1916 certain land owners filed a petition with the Commissioners of Mercer County requesting them to apply for State aid in the construction of about 5Vz miles of Main Market Road, which was done in the same month. Such proceedings took place so that 1% miles of road were built under the law that existing and found in 105-106 Ohio Laws, pages 62S to 637 and especially Sec. 207 which reads in part as follows:

“Ten per cent of the cost and expense of improvement, excepting therefrom the cost and expenses of bridges and culverts shall be a charge upon the property abutting on the improvement.”

In 1917 the law was changed so as to enlarge the area which could be assessed for such a road, being 1214 GC., which reads in part as follows:

“And provided further that the County Commissioners by a resolution passed by a unanimous vote may make the assessment of ten per cent or more as the case may be, of the cost and expense of improvement against the real estate within one-half mile of either side of the improvement or against the real estate within one mile of either side of the improvement.”

In 1920 the Commissioners proceeded to build another portion of this road and attempted to assess the property owners as provided in 1214 GC.

The Court of Appeals granted the injunction on the theory that this application was pending and that, because a law cannot be retroactive the law as existing in 1916 applies.

The Treasurer in the Supreme Court contends that a petition is not a pending proceeding and that Sec. 224 of 106 Ohio Laws 644 which provides in part that, “There shall be no necessity of petitions being filed as in other improvements”, conclusively proves contention because it is clear by this law that the legislature intended to give the Highway Department a free hand in road building and that it was not its design to limit the State Highway Commissioner, in any respect by former proceedings.  