
    DeARMOND, TEE v. CITY OF HAMILTON.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 375.
    Decided July 28, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1159. TAXES AND ASSESSMENTS.
    Where petition to council for street improvement, waives limitation of assessment provided in Section 3819 GC., on condition that said assessments be payable in 29 annual installments, council cannot, by ordinance, collect such assessment in ten installments.
    INJUNCTION GRANTED.
    Paul Scudder, Hamilton, for DeArmond.
    L. J. Ziliox, City Solicitor and Harry J. Koehler, Jr., Hamilton, for City of Hamilton.
    STATEMENT OF FACTS.
    Plaintiff, who owns a number of lots in Highland Park Subdivision in the City of Hamilton, prosecutes this action to enjoin the City from collecting an assessment for a sanitary sewor.
    Two petitions were filed with the Council of said City, reauesting the improvement. The first was filed June 18th, 1919.
    The pertinent part of this petition is the waiver contained in the last paragraph, waiving the limitation of assessment as provided in Section 3819 of the General Code. The second petition was filed May 3, 1922. '
    This petition contains a waiver of the limitation of assessments under the statute, and adds “said assessment to be payable in 20 annual installments.”
    
      In 1923, Council of said City passed an assessing ordinance, making the assessments payable in ten annual installments.
   CUSHING, J.

“The question is — whether these assessments can he collected in ten annual installments under the petitions; or, whether the condition, made a part of the waiver, must be followed: If not, the only assessment that can he collected is that provided by statute.

The case of Winchell v. Dennison, 5 Ohio App. Rep. 103, states: ‘The petition presented to council was in the nature of the offer or proposition in a contract.’

On the other hand, if the petition is considered a conditional waiver, the case of Roebling v. Cincinnati, 102 Oh. St. 460, would apply. The court in that case, in part, said that the assessment may he levied, depending upon a construction of the subject matter of the petition, and, in determining this, the language used must he strictly construed against the municipality, and in favor of the petitioner.

Section 3911 GC. also provides that ‘proceedings shall be strictly construed in favor of the owner of the property assessed, etc.’

The petitioners agreed to waive in case the assessments were payable in twenty annual installments. They did not waive in case the payments were to be made in ten annual installments.

There was no limitation as to the property described in the petition of 1919, and, as to that property, the petition will he dismissed.

The limitation in the petition of 1922, not having been complied with by Counci,1 the injunction will be granted as to that property.”

A decree may he prepared accordingly.

(Hamilton, P. J., concurs.)  