
    Rice et al. v. Incorporated Village of Danville.
    (Decided March 6, 1930.)
    
      Mr. F. O. Levering, for plaintiffs in error.
    
      Messrs. Koons & Ferenbaugh, for defendant in error.
   Lemert, P. J.

This is an action brought by Samuel Rice and others to enjoin the defendant village from certifying to the county auditor assessments for certain street improvements, to be placed on the tax duplicate for collection.

As the evidence discloses, this is the third assessing ordinance that has been passed for the making of the street improvement involved in this action. The first assessing ordinance divided the improvement into two sections, the railroad being the dividing line, and assessed all abutting property at a uniform foot front rate. The assessing ordinance involved in this action, with an exception as to six abutting pieces of property, still makes the assessment at a uniform foot front rate, in two sections, as was provided in the original ordinance.

The chief and only issues presented under the pleadings and evidence in the instant case resolve themselves into an inquiry whether the assessing ordinance of the village of Danville violates the constitutional right of any of the plaintiffs by levying an amount in excess of benefits conferred, a right, by the way, which is embodied in the statutes, and whether the same assessing ordinance violates the provisions of the limiting statute, which recites that an assessment must not be greater than one-third of the actual value of the property after the completion of the improvement. While other issues were made in the petition, they were not presented in the evidence, or stressed either in brief or in oral argument of the case.

The record discloses that the amount assessed against the property owners was less than the amount that could have been lawfully assessed against them, assuming that they were benefited to that degree.

Section 3896, General Code of Ohio, provides for the items of cost which may be included, and contains the phrase, “any other necessary expenditure.”

Plaintiffs’ chief contention seems to be, and stress is laid upon the subject, that the assessments levied upon the property exceed the benefits conferred. We do not believe that the term “benefits” means simply an advance or increase in market values, but that it embraces the actual increase in money value and also the potential or actual added use and enjoyment of the property as well.

In connection with this phase of the matter we note that some twenty-six witnesses were called — ■ all no doubt being upright and respectable citizens, and their opinions no doubt all being honest — and we note how the opinions of these witnesses differ and vary as to the manner or extent to which the adjoining or abutting property may be or has been benefited.

Plaintiffs claim that, because it was not possible to show at the completion of the improvement an improved change in the market value of the properties, they were not benefited to the amount of the assessments. We do not believe that this argument is logical, for the reason that the value may be present in'the properties and there still be no immediate market for them. The market value of all properties at this time, both rural and in cities and villages, has not increased or enhanced, and we believe that it would not be right and proper in this case to hold to the rule contended for by counsel for plaintiffs, because the actual value to the lots in question, and the benefits, may in reality be there, yet the market value may not have increased and the lots might not sell for any more than they would have sold before the assessments and improvements were made. The fact that there is not now and has not been a market value for these lots is not controlling in the instant case. It may be that the owners do not desire to sell them, or that they may desire to hold them in connection with their homes or other adjacent or abutting properties.

While the history of this case, and particularly of the assessing ordinance, is somewhat varied, yet we are only concerned with it in its present condition. So the question is, Does it violate any right? And we note that the ordinance as presented to the court below in this case was adopted by the present council after a prolonged suit and extensive consideration of the rights and obligations of the plaintiffs, and, as a result of the fair and honest judgment of council, it is shown to be a fact that in dealing with several of these properties council specifically found that they were not benefited to the amount which would have been charged against them had the rate been uniform, and have given relief to some five or six owners of the less valuable properties. So we are inclined to believe that the actions and conduct of council bear silent but strong testimony to the fact that no rights of the plaintiffs have been violated.

While as a matter of law it is true that assessments must not exceed the benefits, we believe that the ordinance regards this limitation as well as the limitation of one-third of the value; hence there is no necessity whatever for attempting to uniformly make the assessments according to benefits. In other words, the statute provides that, while these limitations must be observed, tbe village may still have tbe right to assess by the foot front, and tbis contention is upheld by tbe Supreme Court in Shoemaker v. City of Cincinnati, 68 Ohio St., 603, 68 N. E., 1. See, also, Page & Adams General Code, Section 3812, Note VIII, C, subdivision 1.

Tbe courts of .our state in tbe following cases bave treated tbe subject of assessment and benefits, and bave well defined what benefits may be: Prentice v. City of Toledo, 11 C. C. (N. S.), 299, 20 C. D., 568; McMaken v. Hayes, 10 C. C. (N. S.), 38, 19 C. D., 535, affirmed Hayes v. McMaken, 78 Ohio St., 412, 85 N. E., 1125.

In tbe absence of proof to tbe contrary, tbe assessing ordinance in tbis case is presumed to be valid, and it was incumbent upon tbe plaintiffs to show, and show convincingly, that some or one of the limitations were violated, which in tbe instant case has not been done.

Therefore it follows from tbe foregoing conclusions of fact and law that tbe plaintiffs in error bave failed to make a case, and tbe finding and judgment of tbis court is that tbe petition in error' be, and hereby is, dismissed at tbe cost of plaintiffs in error.

Petition in error dismissed.

Sherick, J., and Punk, J. (of tbe Ninth Appellate District), concur.  