
    VALIDITY OF ASSESSMENT FOR AN INTER-COUNTY HIGHWAY.
    Common Pleas Court of Delaware County.
    Peres E. Dix v. C. L. Shoemaker et al.
    
    Decided, July Term, 1922.
    
      Roads — Limitation as to Time for Applying for State Aid — Compliance With Constitutional Requirement as to Interest and Sinking Fund Levies — Policy of Heavy Assessments for Road Improvements.
    
    1. The statutory provision that applications for the granting of state aid in improving inter-county highways shall be filed prior to March 1 is directory only, ánd such an application may be received and favorably acted on although filed at a later date.
    2. The requirement of Section 11 of Article XII of the Constitution that provision must be made in case of all bond issues of the state and its subdivisions for the levying and collecting annually by taxation “an amount sufficient to pay the interest on Baid bonds and to provide a sinking fund for their final redemption at maturity,” is satisfied in the casé of road improvement bonds when an apportioned assessment is made in amount sufficient to meet these charges, notwithstanding no levy therefor was made in the bond resolution.
    3. It is not for the courts to interfere with or undertake to change the policy instituted by the General Assembly of levying heavy assessments for road improvements; and in view of the assessments levied for other roads in the same county, the court cannot say that an assessment of $9 to $14 per acre for improvement of an inter-county highway is excessive.
    
      
       Affirmed by the Court of Appeals.
    
   Jewell, J.

On the 14th day of March, 1921, the commissioners of Delaware county, made application to the state highway commissioner for state aid in, the improvement «of Inter County Highway No. 4. The highway is situated in Troy and Marlborough townships, and covers a distance of about eight miles. This ap■plication was made under Section 1191 of the General Code of Ohio, and was approved by the state highway commissioner on March 16, in accordance with the provisions of Sections 1195 and 1196 of the General Code. The commissioner set aside the sum of $140,000 of federal funds to aid in this improvement, on condition that the county pay the remainder of the cost of the improvement. Plans and specifications were made by the highway commissioner, and an estimate thereof. The total estimated cost was $374,000.

On April 11, 1921, the commissioners of Delaware county, by resolution in accordance with Section 1214, apportioned the one half of the improvement as follows: Fourteen per cent, to Delaware county, fifteen per cent, to Troy and Marlborough townships, and twenty-one per cent, to the real estate lying within one mile of either side of the improvement. Bonds in the sum of $187,000 have been sold, and the road is being improved.

Three questions are presented for the consideration of this court. First, had the commissioners of Delaware county, in conjunction with the state highway commissioner, authority to improve this highway? To be more specific, must the commissioners apply for state aid before March the 1st, as provided in Section 1191, before it can acquire jurisdiction to improve the road?

The state highway department was created for the purpose of constructing and maintaining a state system of highways in cooperation with the federal government, and subdivisions of the state. The commissioner is appointed by the Governor, and has general supervision over the construction and maintenance of inter county highways, and. main market roads.

Section 1191 of the General Code provides that the county commissioners may make application to the state highway commission for aid for the construction of inter county highways, and that such application “shall be filed prior to March the 1st of the calendar year in. which such application may be made- or become available. * * * Tf the county commissioners * # # do not make application for the apportionment to such county on or before the 1st day of May, then the state highway commissioners shall enter upon and construct * * * the inter county highway * *

It is obvious that the purpose of this statute is to enable the highway commissioner to make an apportionment of the funds available for tbe improvement of roads at tbe beginning of each season. This statute providing that the application shall be filed prior to March the 1st, is merely directory on the part of the commissioners. It clearly implies the right to make such application after March 1. We must give effect to that part of the statute which provides that if the application is not made before May 1, the highway commissioner may improve the road.

The application to the county commissioners for aid before any funds appropriated by the state are available by the highway commissioner can be made at any time in the year, under provisions of Section 1191 General Code, provided the highway commissioner has not incurred any obligation involving the expenditure of the funds for which the application is made. Whether there were funds available at the time the application was filed in this case can not be questioned by the plaintiffs. The journal of the highway commissioner of the date of March 16, 1921, shows that $140,000 federal funds were allowed.

The second question presented for the consideration of the court goes to the validity of the assessments upon the land lying within one mile of the improvement. It is contended that there was no levy made in the bond resolution upon this land, and that the failure of the county commissioners to incorporate in such resolution a levy casts the burden of this improvement entirely upon the townships of Troy and Marlborough, and the county of Delaware. In fact this question goes to the validity of the entire bond issue. The claim is made that Article 12, Section 1, of the Constitution of Ohio was violated in that no provision was made for funds to pay the bonds when due, and interest thereon. Section No. 11, Article 12 of the Constitution reads:

“No bonded indebtedness of the state, or any political subdivision thereof shall be incurred, or renewed, unless, in the legislation under which such indebtedness is incurred, or renewed, provision is made for levying and collecting annually by taxation, an amount sufficient to pay the interest on said bonds, and to provide a sinking fund for their final redemption at maturity.” i , i ,iJ

In the case of Link v. Karb, Mayor, 89 O. S., 26, this constitutional provision is held to be directed to the legislation under which bonded indebtedness is incurred, and not to the mere issuance of the bonds. In the opinion written by Donahue, Judge, it is said:

“We have reached the conclusion that in obedience to this amendment to the constitution, the taxing officials of any political subdivision of the state must provide in the resolution or ordinance authorizing "such issue, or in a resolution or ordinance in relation to the same subject-matter passed prior to the issuing of such bonds, for levying and collecting annually by taxation an amount sufficient to pay the interest thereon, and provide a sinking fund for their final redemption at maturity. This, of course, does not require the immediate levying of a tax certain, either in amount or rate, for the provision of this amendment is that the tax shall be levied annually and collected annually, but it does mean that at the time the issue of bonds is authorized, the taxing .authorities proposing to issue such bonds shall provide that a levy shall be made each year thereafter during the term of the bonds in an amount sufficient to pay the interest thereon and retire the bonds, and such provision, so made at the time the bonds are authorized, shall be-binding and obligatory upon the taxing officers of that political subdivision.”

On the 11th day of April, 1921, the apportionment resolution was adopted by the commissioners of Delaware county, and reads:

“Be It Resolved, That the remaining portion of the cost and expense of said improvement be and is hereby apportioned as follows, to-wit: Fifty per cent, of the costs and expenses of bridges and culverts shall be paid by Delaware county; and of -the total costs and expenses thereof, except the costs and expenses of bridges and culverts, fourteen per cent, shall be paid by -Delaware county, fifteen per cent, shall be paid by Troy and Marlborough townships, in proportion to the number of lineal feet of said road situated therein, and twenty-one per cent, shall be assessed upon the real estate lying within one mile of either side of the improvement, according to the benefits accruing to such real estate, as may be determined by this board of county commissioners. The county surveyor is hereby ordered to make, upon actual view, a tentative apportionment of the amount to be paid by the owners of the property specially assessed, and upon the completion of the same, file with the officials of this board a schedule of such tentative apportionment for the inspection of the persons interested; and this matter is adjourned until such time as the order to the county surveyor shall have been .executed.”

The bond resolution was adopted by the commissioners of Delaware county, Ohio, on April 18, and recites all the proceedings pertaining to this improvement. The assessing portion of this resolution reads:

“Be it further resolved, that for the purpose of paying the interest upon, and retiring at maturity the bonds herein authorized to be issued, and to create and maintain a sinking fund' for that purpose, there shall -be levied in addition to all other levies authorized by law for county and township purposes respectively, subject, however, to the maximum limitations imposed by law upon the total combined amount of all levies now in force, the following annual taxes, to-wit: Upon all the taxable property within the county of Delaware an annual tax sufficient to yield the county’s proportion of the amount required to pay the interest on said bonds when due, and retire said bonds at maturity; upon all the taxable property within the township of Troy and Marlborough, an annual tax sufficient to yield.said township’s proportion of the amount required to pay the interest on said bonds when due and to retire the said bonds at maturity.”

By this resolution the commissioners have provided a fund to meet the bonded indebtedness chargeable to Delaware county, and the townships of Troy and Marlborough. The special assessments authorized in the lesolution of April 11th, make up the balance chargeable to Delaware county. Counsel fail to keep in mind the difference between a general tax and a special assessment. ■

The sole purpose of this provision in our Constitution is to prevent the state and other subdivisions from contracting a debt without providing a revenue to meet such indebtedness when it becomes due. The word “legislation” referred to in the Constitution must not be limited to the bond resolution. The bond resolution and the apportioned assessment meet the requirements of the statute.

The principal question involved in this litigation goes to the amount of the assessments. It is contended that.the special assessments are excessive. We must assume in determining this question that any assessment in excess of the benefits violates Article 1, Section 1 of the Constitution of Ohio, which forbids the taking of private property for public use without eompen- . sation.

The only limitation in the General Code of Ohio upon county commissioners in making road assessments is' found in Section 1214, which limits the assessments to thirty-three per cent, of the value of the land as listed for taxation. The county commissioners can not take more than thirty-three per cent, of the value of land as returned or listed for taxation. We have a similar provision which applies to special assessments in municipalities. This limitation prohibits the city council from taking more than thirty-three and a third per cent, of the actual value of the property foi( all improvements covering a period of five years. This provisions of the law has frequently been before.the courts of Ohio, and it has uniformly been held that' the taxing authorities in a city can assess for paving purposes against such property thirty-three and a third per cent, of the actual value of the property after the improvement.. We are not asked in this case to equalize the assessments against the land owners within the zone assessed, but to limit all assessments to approximately two to five dollars per' acre. Evidence was given by one or two witnesses, which, if followed, would compel us to find that an improved road is .a public nuisance. If true, this should have been called to the attention of the highway department by protest, rather than a petition for its construction. By what standard, must we determine whether the assessments exceed the benefits? We (know in a general way that improved roads are a great benefit to a community. This is a matter of common knowledge, and the court takes judicial notice of all such matters. Any assessment taken from the land owners within the zone of the pike, must be placed upon the county, and hence upon the taxpayers of the entire county. In determining this question, we should look to other assessments for road improvements in Delaware county. The road under construction is called the CoMmbus-Sandusky road. The type of this road is brick, and the approximate cost per mile is $44,000. The assessment on 106.8 acres of J. F. Brundige is $960. We do not include interest in any of the figures given in this opinion. The assessment of Charles R. Strawser on 118.81 acres is $1,420. The assessment of Charles D. Weiser on 117.29 acres is $1,-480.

Section L. of the same road was recently constructed. In the construction of Section L, the commissioners levied twenty-one per cent, of the fifty per cent, assumed by Delaware county upon the land owners within one mile of the pike. The type of this road was concrete, and the approximate cost was $31,530 per mile. The assessment of Matthew Wilson on 98 acres, was $575. The assessment of Lew M. Smith on 66.75-acres, was $583. The assessment of Harry Gooding on 109.22 acres was $787.50.

Inter county highway No. 238, which is called the DelawareMarysville road, has been recently improved. The type was bituminous macadam, and cost $20,673.33 per mile. The assessment of A. C. and C. P. Bevan, on 141.94 acres, was $954.

In making assessments for the construction of inter county hig’hways in this county, the commissioners have uniformly assessed twenty-one per cent of the fifty per cent, assumed by the county, upon the lands within one mile of the improvement. In the light of the assessments placed against property owners for the improvement of other roads in Delaware county, would it be equitable to reduce the assessment on this road to approximately from three to five dollars per acre? The land owners within one mile of the Marysville Road aRe paying twenty-one per cent, of the fifty per cent assessed by Delaware county commissioners. The land owners along the Columbus pike are assessed for that improvement twenty-one per cent, of the fifty per cent, assumed by Delaware county. The ordinary macadam is often worn out before it is paid for. The maintenance of such road must be sustained by the land owners. The original construction is a small item compared to the maintenance covering a period of fifty years or more. The maintenance of ir.ter county highways is assumed by state. The- assessments on this road do not exceed the limitation provided in Section 1214 of the General Code. Neither can we say, when considered with other assessments, that they are excessive to the extent that would warrant the interference of this court. Let us understand the true function of a court in passing upon a case of this character. The province of the legislative branch of our state is to legislate. Our legislative body has seen fit to authorize the county commissioners to assume fifty per cent, of the costs of improving an inter county highway, and to place twenty-one per cent, of this fifty per cent upon the land owners within one mile of the improvement.

The wisdom of this law is not within the province of the court to question. It is the duty of the court to give effect to the intent of the law as enacted. The object of judicial investigation is not to nullify law, but to enforce the law as enacted. We must construe the law as we find it written in the General Code. Much of the opposition to this improvement arises because the highway department did not construct the road out of material demanded by the land owners. The people of Ohio have seen fit by legislation to give the state highway commissioner the power to determine what material shall be used in the construction of a highway. The action of the highway commissioner is not subject to judicial sanction. The law makes him the judge, and in fact charges him with the construction of inter county'highways.

We are reminded by counsel that the jurisdiction and power of a judge in this class of cases is broad. But he, as a chancellor, is bound to follow "the law as written. There can be no such thing as judicial legislation. Equity can not correct errors of law. It corrects facts. We must keep in mind the ancient maxim — -“That equity follows the law.” This is clearly expressed by the Supreme Court of the United States in the case of Hedges v. Dixon County, 150 U. S., 182, wherein it is said: “Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law. They are bound by positive provisions of the statute equally with courts of law.”

It follows that the petition of the plaintiff must he dismissed. Motion for a new trial overruled.  