
    Schick v. City of Cincinnati et al. Imbus v. City of Cincinnati et al. Hull v. City of Cincinnati et al.
    
      Municipal corporations — Assessments—Failure to adjudicate property owner’s damage claim — Section 3829, General Code — Assessment not invalidated, but collection suspended until adjudication made — Statutes relating to manner or time of exercising powers, directory, when — Supreme Court — Declaratory judgments not rendered — Failure of party to preserve law question upon record.
    
    1. Statutes which relate to the manner or time in which power or jurisdiction vested in a public officer is to be exercised, and not to the limits of the power or jurisdiction itself, may be construed to be directory, unless accompanied by negative words importing that the act required shall not be done in any other manner or time than that designated.
    2. Where a municipality has improved a street by widening, paving, curbing, etc., failure of the mayor or solicitor to have a property owner’s claim for damages adjudicated within ten days after the completion of the improvement, as provided in Section 3829, General Code, does not invalidate an assessment levied for malting said improvement, but merely operates to suspend the right of the city to collect said assessment until such adjudication is made.
    3. This court does not render declaratory judgments, and unless a party to an action by taking proper steps has availed himself of his rights to present a law question upon the face of the record, this court will not pass upon a question that might have arisen had he so done.
    (Nos. 20022, 20023 and 20024
    Decided March 1, 1927.)
    Error to the Court of Appeals of Hamilton county.
    The following cases, involving the same question, will be decided together: Antoinette V. Schick v. City of Cincinnati, a Municipal Corporation, et al., Cause No. 20022; Bose F. Imbtis v. City of Cincinnati, a Municipal Corporation, et al., Cause No. 20023; and Lilly Hull v. City of Cincinnati, a Municipal Corporation, et al., Cause No. 20024.
    The original actions were begun in the superior court of Cincinnati, where the plaintiffs in error sought to enjoin the city of Cincinnati from collecting assessments for the improvement of Elberon avenue in said city in front of the property of the plaintiffs in error. The chief grounds of the injunction sought were:
    That the proceedings incident to the improvement and assessment were invalid because Sections 4227-2, 4227-3, and 3812 et seep, G-eneral Code, relative to street improvements, are unconstitutional and void, for the reason that they are in conflict with Section If of Article II of the Constitution of the state of Ohio, under which section referendum powers are reserved to the people of each municipality on all questions authorized by law in which such municipality seeks to affect the property rights of individuals by legislative action; and, further, that no adjudication of the claims for damages of the respective property owners was had pursuant to law.
    A temporary restraining order was issued and the city filed -an answer in the nature of a general denial, after having admitted the ownership of the property in the plaintiffs in error and that it was making the improvements and assessments as averred in the petition. Upon trial in the superior court a request was made by the plaintiffs in error for separate findings of fact and conclusions of law.
    The separate findings- of fact, omitting certain details as to the ownership of the property and the amounts of the assessments against each, among other things, read as follows:
    “That on August 2, 1921, the council of the city of Cincinnati passed an Ordinance No. 180 — 1921, determining to proceed with the improvement of Elberon avenue from the south line of Bassett road to the north line of Eighth street, as in the manner set forth in the resolution of necessity, and providing for an assessment, which said ordinance provided that ‘all claims for damages resulting from this improvement shall be judicially inquired into after the completion of the proposed improvement. ’
    “That thereafter a contract was entered into for said proposed improvement, and that said improvement was completed in accordance with the plans, specifications, estimates, and profiles on file in the office of the director of public service.
    “That on December 26, 1922, the council of the city of Cincinnati passed Ordinance No. 264 — 1922, levying a special assessment on the lots and lands abutting said improvement, in the sum of $8.273565 per front foot, payable in cash, or in ten (10) annual installments with interest. The terms are specifically stated in the copy of said ordinance, attached as Exhibit A. That no action has been instituted to judicially inquire into the claims for damages resulting from said improvement after the completion thereof, and that no referendum petitions were filed with the auditor of the city of Cincinnati demanding a referendum on the resolution of necessity, the ordinance determining to proceed or the assessing ordinance. * * *
    “That the properties of these plaintiffs were benefited in excess of $8.273565 per front foot by reason of said improvement, and that the sum so assessed against each front foot of the plaintiff’s property does not exceed one-third of the value thereof after said improvement.”
    As its conclusions of law upon the above facts, the court found as follows:
    “That said assessment as levied by the city of Cincinnati is a just and valid assessment and is hereby sustained in full, and that the plaintiffs are not entitled to any reduction in the amount thereof on the grounds that said assessment exceeds the special benefits conferred upon their property by the making of said improvement. That it is unnecessary to determine whether Section 4227-3 of the General Code of Ohio is in conflict with any provision of the Constitution of the state of Ohio, for the reason that no referendum was asked or demanded upon any of the legislation passed by the city council, and that at the time of the trial of this case the time had expired within which any referendum petitions could be filed.
    “That the failure of the city of Cincinnati, or any of its officials, to proceed to judicially inquire into the claims for damages filed by the plaintiffs does not invalidate the assessment levied by the city of Cincinnati, but suspends the right of the City of Cincinnati through its proper officers to enforce and collect said assessment until such time as an action is instituted by the city of Cincinnati through its proper officers to judicially inquire into the'claims for damages filed by the plaintiffs.
    “The court, now coming to enter its judgment, does find that the assessment as levied against the properties of the plaintiffs is a just and valid assessment and is sustained in full, and does order, adjudge, and decree that the defendants be, and they are hereby, enjoined from collecting or endeavoring to collect said assessment until such time as the city of Cincinnati through its proper officers proceed to judicially inquire into the claims for damages filed with the city council by the plaintiffs, and, upon compliance with the provisions of law for such judicial inquiry into the damages claimed by the plaintiffs, said restraining order should, upon showing of such facts, be vacated, and the costs of this proceeding are assessed against the defendants.
    “To the foregoing both plaintiffs and defendants all except.
    “The plaintiffs having requested different findings of fact and law which the court refuses to find, the plaintiffs further except to such refusal. ’ ’
    Error was duly prosecuted to the Court’ of Appeals of Hamilton county, in which court the judgment of the superior court of Cincinnati was affirmed, and error is now prosecuted in this court to reverse such judgment.
    
      Mr. William J. Schick, for plaintiffs in error.
    
      Mr. John D. Ellis, city solicitor, and Mr. Bert H. Long, for defendants in error.
   Day, J.

There are two questions presented by this record: First, does the failure of the city to begin proceedings to adjudicate the claims for damages of the plaintiffs in error within ten days after the completion of the improvement invalidate the right of the city to collect the assessments in question? Second, are Sections 4227-2 and 4227-3, General Code, in conflict with Section If, Article II, of the Constitution of Ohio?

It is the claim of the plaintiffs in error that there has been such a violation of Section 3829, General Code, that the city has lost its right to collect the assessments in question. So much of said section as is necessary for consideration is as follows:

“When the council determines to assess the damages after the completion of an improvement * * * for which a claim for damages has been filed as herein' provided, the mayor or solicitor shall, within ten days after the completion of such improvement, make written application to the court of common pleas, * * * to summon a jury in the manner provided in this division for the appropriation of property, to assess the amount of damage in each particular case.”

It is quite true that the record discloses that the city has not complied literally with this section, and that there has been a considerable delay on the part of the city; but in the event that it still complies with the direction of Section 3829, General Code, should it be deprived of the right to collect the assessments in question and the owners of the property be permitted to continue to receive the benefits of the improvement? Stated more concretely, is that portion of the section in question, which, provides for the ten-day period after completion of the work within which to apply to the common pleas court for a jury to assess damages to those who have filed claims therefor, directory merely, or is it mandatory?

This court, in the case of State ex rel. Smith v. Barnell, 109 Ohio St., 246, 142 N. E., 611, passed upon a question not dissimilar in construing a five-day limitation, provided by a city charter, within which an official act was to be performed. Upon the theory that the instructions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, it was held that the provisions thereof may generally be regarded as directory, unless the nature of the act to be performed is such that the designation of time must be considered a limitation upon the power.

This principle finds support in the following cases, arising under miscellaneous facts: School District No. 61, Payne County v. Consolidated District No. 2, Coyle, Logan County, 110 Okl., 263, 237 P., 1110; Terrell v. City of Paducah, 122 Ky., 331, 92 S. W., 310, 5 L. R. A., (N. S.), 289; St. Louis County Court v. Sparks, 10 Mo., 117, 45 Am. Dec., 355; People ex rel. Board of Supervisors of Solano County v. Board of Supervisors of Lake County, 33 Cal., 487; Duncan v. Cox, 41 Ind. App., 61, 81 N. E., 735, 82 N. E., 125; Blimm v. Commonwealth, 70 Ky., (7 Bush), 320; Pond v. Negus, 3 Mass., 230, 3 Am. Dec., 131; Rambeck v. La Bree, Sheriff, 156 Minn., 310, 194 N. W., 643; East Bay Municipal Utility District v. Garrison, 191 Cal., 680, 218 P., 43. See, also, 25 Ruling Case Law, 769, and 36 Cyc., 1160.

Of course the provision for the inquiry for assessment of damages at some stage of the proceedings before collecting an assessment against a property owner is mandatory in character, but the failure to have such inquiry in ten days after the completion of the work does not limit the power or jurisdiction itself. This court has heretofore recognized this doctrine, in the ease of State ex rel. Alcorn v. Mittendorf, 102 Ohio St., 229, 131 N. E., 158, wherein it was held:

“By virtue of Section 5696, General Code, the duty to publicly read the list of persons delinquent in the payment of taxes on personal property is mandatory.

“The requirement of that section that the reading of the list occur at each September session of the board of county commissioners is directory merely, and the board of commissioners having failed to read the list during the September session it is their duty to read the list at a later date. ’ ’

We have therefore reached the conclusion that if the city is not allowed to collect the assessments in question until after having given the property owners an opportunity to have their claims for damages adjudicated, the purpose of the statute in question will be effectuated and no property right of the plaintiffs in error denied. A construction which places the provisions of the statute as merely directory deprives the plaintiffs in error of no right, whereas a construction which would make the same mandatory would deprive the city of its right to collect the assessments in question and permit the property owners to enjoy the benefits of the improvement without cost to themselves and at the expense of the taxpayers of the municipality. Again, if the language is to be deemed mandatory, the mayor or solicitor might deprive the city of the right to collect an assessment by simply failing to perform a ministerial duty. The construction that the portion of the statute indicated is directory only conforms more nearly to the ends of justice.

The second proposition involved herein is whether or not Sections 4227-2 and 4227-3, General Code, are unconstitutional and void as in conflict with and repugnant to Section If, Article II, of the Constitution of the state of Ohio.

Sections 4227-2 and 4227-3 provide that any ordinance passed by council of any municipal corporation shall be subject to referendum except as in said sections provided, and that when such municipal corporation is required by law to pass more than one ordinance or other measure to complete the legislation necessary, the provisions relative to the referendum shall apply only to the first ordinance or other measure required to be passed, and not to any subsequent ordinance or other measure relating thereto.

It is claimed by plaintiff in error that this limiting of the right of referendum to the first measure of a series and denying the same as to the subsequent legislation is in conflict with the referendum provisions of Section If, Article II, Ohio Constitution.

This record affirmatively finds that none of the plaintiffs in error availed themselves of the privilege of invoking a referendum on the resolution of necessity, the ordinance determining to proceed, or the assessing ordinance. When a party has not availed himself of his own rights, nor attempted to bring facts into a record raising a question for review in the courts, there is nothing upon which this court is called upon to pass. It would be equivalent to saying that in the event certain steps had been taken what would be the relative rights of the parties thereon. The question is purely a moot one, and this court does not concern itself therewith nor render declaratory judgments.

Upon an examination of the entire record we find no error in the judgments of the courts below, and said judgments are therefore affirmed.

Judgments affirmed.

Marshall, C. J., Allen, Kinkade, Robinson, Jones and Matthias, JJ., concur.  