
    The City of Dayton et al. v. Bauman.
    
      Power of assessment "by cities — Section 6 of Article IS of constitution — Limitation of same by Section 19 of Article 1— Inviolability of private property — Compensation for land appropriated for public use.
    
    1. The limitation of Section 19 of Article 1 of the constitution on Section 6 of Article 13 as to assessments, goes to the full extent of prohibiting the raising of money directly or indirectly by assessment to pay compensation, damages or costs for lands appropriated by the public for public use. Railway Co v. Cincinnati, 62 Ohio St., 465, approved and followed.
    2. Said limitation does not affect or prohibit the raising of money by assessment to pay for surface improvement of streets, sewers, etc., so long as the assessment does not exceed the special benefits conferred. "Walsh v. Barron, 61 Ohio St., 15, approved and followed.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Montgomery county.
    The city of Dayton appropriated by proper legal proceedings certain lands for the extension of two streets, Monroe and Long, and haying paid the compensation, damages and costs, made an assessment upon the abutting, adjacent and contiguous lots for the purpose of raising money to reimburse its treasury for the money so paid out, or else to raise money to pay the bonds issued by the city by means of which it pledged the public faith and credit of the city and thereby raised money with which it paid said compensation, damages and costs. Which method was pursued does not clearly appear, but that the assessment was for the purpose of paying in some form said compensation, damages and costs is conceded.
    None of the lots or lands of Mr. Bauman were appropriated, but an assessment was made on his lots for the payment of compensation, damages and costs awarded to others whose lots had been appropriated for the extension of said streets.
    He enjoined the city and proper officers from enforcing the assessments, and the circuit court having decided the case in his favor, the city came here on error, seeking to reverse the judgment below.
    
      Mr. Edwin P. Matthews, city solicitor, Mr. Charles J. Hunt and Mr. Albert II. Morrill, corporation counsel, for plaintiff in error.
    The presumptions are in favor of the assessments and it is to, be presumed that all jurisdictional and other steps were taken, unless alleged in the petition to be otherwise. Bolton v. Cleveland, 35 Ohio St., 319; Spangler v. Cleveland, 43 Ohio St., 526.
    It is provided that the city may specially assess the cost of opening streets. Sections 2263 and 2264, Rev. Stat.
    Section 2264, Rev. Stat., as it existed at the time this assessment was made, authorized the council to determine in how many installments and at what time the assessments should be payable. 83 Ohio Laws, 171.
    In the cases provided for in Sec. 2263, Rev. Stat., of which this is one, it is the duty of the clerk to certify assessments to the auditor to be placed upon the tax duplicate and collected as other taxes. Section 2265, Rev. Stat.
    In all such .cases, the city must do as it did in this case, viz., pay at least the one fiftieth of the cost. Section 2263, Rev. Stat.
    . Special assessments shall be payable by the owners of the property assessed, personally, by the time stip^ ulated in the ordinance, and shall be a lien from the date of the assessment upon the respective lots and lands assessed. Sections 2285 and 2297, Eev. Stat.
    The city elected to place these assessments upon the tax duplicate for collection. After this is done, an action cannot then he brought for the collection of the assessment, but collection must be made by the treasurer. Fremont v. Hayes, 7 Dec., 263; 4 N. P., 379.
    The amended petition does' not allege that the plaintiff below was prejudiced by the action of the city clerk and does not allege facts to show that he was, and it is to be presumed that he was not. Slavin v. Greene, 4 Dec., 99; 2 N. P., 39.
    The irregularity upon the part of the clerk, being merely in a formal matter, should be disregarded. Section 2327, Rev. Stat.
    The assessing ordinances were passed on one reading. This was sufficient for they were neither of a permanent nor of a general nature. Section 1694, Rev. Stat. Upington v. Oviatt, 24 Ohio St., 232; Cincinnati v. Bickett, 26 Ohio St., 49; Guernsey Co. (Commrs.) v. Cambridge, 3 Circ. Dec., 669; 7 C. C. R., 72.
    The general assembly is required to restrict the power of municipalities as to taxation and assessments. Constitution, Art. 13, Sec. 6.
    Both these powers are thus recognized.
    In a general sense a tax is an assessment, and an assessment is a tax, but there is a well recognized distinction between them, an assessment being confined to local impositions upon property for the payment of the cost of public improvements in their immediate vicinity, and levied with reference to special benefits to the property assessed. Lima v. Cemetery Assn., 42 Ohio St., 128.
    
      The power to make assessments had been in constant use before the adoption of the constitution of 1851, and is now sanctioned by that instrument. Raymond v. Cleveland, 42 Ohio St., 522.
    As the legislature is required to restrict the power of assessment, it follows that the power exists and that the legislature may provide for its exercise. Hill v. Higdon, 5 Ohio St., 243.
    Municipalities may appropriate lands for streets. Section 2232, Rev. Stat.
    When the corporation appropriates land for the purpose of opening and extending a street, the cost may be assessed upon the general tax list. Sections 2263, 2264, 2270, 2273, 2277, 2278, 2279 and 2280, Rev. Stat.
    It is not alleged that the lots and lands benefited and to be assessed were not specifically designated before the improvements were made, nor that any requirement of the statute was omitted, and the presumption is that all of the provisions of the law were complied with. Ward v. Barrows, 2 Ohio St., 241; Coombs v. Lane, 4 Ohio St., 112; Reynolds v. Schweinefus, 27 Ohio St., 311.
    It has been repeatedly held in the Supreme Court of this state that special assessments may be made to pay the cost of land taken for street purposes. Raymond v. Cleveland, 42 Ohio St., 522; Chamberlain v. Cleveland, 34 Ohio St., 551; Krumberg v. Cincinnati, 29 Ohio St., 69; Meissner v. Toledo, 31 Ohio St., 387.
    No part of the Bauman property having been taken, the question in the Norwood-Baker case and in the Cincinnati case in 62 Ohio State, does not arise here. In the Norwood-Baker case, the court says: “Undoubtedly, abutting owners may be subjected to special assessments to meet the expenses of opening public highways in front of their property. Such assessments, according to well established principles, resting upon the ground that special burdens may be imposed for special or peculiar benefits accruing from public improvements.” Norwood v. Baker, 12 O. F. D., 228; 172 U. S., 269.
    In Railway Company v. Cincinnati, 62 Ohio St., 465, all that was considered was the application of Sec. 19, Art. 1 of the Ohio Constitution, to the state of facts therein presented.
    Why these statements were necessary to the decision in that case is not apparent, and they do not contain what has always been regarded as the law in this state, and for that matter in the whole country. Cooley on Taxation, pp. 611, 612, 633.
    Under Sections 2704 and 2705, of the Revised Statutes, municipalities may borrow money and issue bonds, in anticipation of the collection of special assessments, to pay for improvements, and this is what is universally done, not only in the matter of opening streets, but where street paving, sewer, and other public improvements are made, which are specially assessed.
    The long line of decisions in this state upon which special assessments of the kind in question have been based, and which are in harmony with the decisions of other states and of the United States, should be upheld on the principal of stare decisis and ought n„ot to be lightly overruled. Schroder v. Overman, 61 Ohio St., 1.
    In the case at bar, the assessments were made according to benefits and no claim is made that Bau man’s property was not benefited to the extent of the assessments, by the opening of the streets, but the plain inference from the amended petition is that it was. No property or money was taken, or attempted to he taken, without due process of law. The provisions of the statutes were complied with, and it has been held by this court and by the Supreme Court of the United States that assessments made under such statutes as ours, when coupled with the right of the property owner to question in court such assessments as he claims are illegal, are made by due process cf law. Caldwell v. Carthage, 49 Ohio St., 334; Turnpike Co. v. Parks, 50 Ohio St., 568; French v. Paving Co., 181 U. S., 324; 45 Bull., 401; Wight v. Davidson, 181 U. S., 371; 45 Bull., 428; Detroit v. Parker, 181 U. S., 399; 45 Bull., 431.
    A special taxing district, viz., of the property benefited, was made by the city under the provisions of the statute, and the assessment was laid according to benefits. This, the Supreme Court of the United States hold is constitutional and can be done. Webster v. Fargo, 181 U. S., 394; 46 Bull., 77.
    Under the doctrine of the case in 62 Ohio State, the land for the pumping station, having been taken by the city, would have to be paid for by the city, and the cost could not be included in the amount assessed for the sewers. We do not believe this is the law — and the case might easily occur. In Dayton we have a pumping station in connection with the sanitary sewers, and if the city had not happened to own the land upon which it is located, we would have had to acquire same either by purchase or by condemnation, and the cost would most certainly have been included in the cost of the sewers, and would have been assessed.
    The decision of the circuit court in this case is not in accord. with the decisions of the Supreme and circuit courts in the following cases: Krumberg v. Cincinnati, 29 Ohio St., 69; Norwood v. Ogden, 8 Circ. Dec., 383; 18 C. C. R., 869.
    This case involves the constitutionality of Sec. 2264, Rev. Stat., and of other sections authorizing special assessments, and involves the construction of Sec. 19, Art. 1, and of Sec. 6, Art. 13 of »the constitution of Ohio.
    The present case does not come within the rule recently laid down by this court, that Sec. 19, Art. 1, of the constitution of Ohio, prohibits the benefits, resulting to a piece of property by reason of the opening of a street contiguous thereto, being considered in making an assessment to pay for such opening. For that rule was applied to a case in which part of a piece of property had been condemned and compensation awarded to the owner thereof, and the cost of such condemnation, including the amount awarded to the owner, assessed against the remaining property. In the present case no part of the property assessed has been taken, and hence the city of Dayton is not, by making such assessment, asking Bauman to pay back to it the amount which he has already received.
    This principle, that the finding of the city council as to benefits conferred by a certain improvement is conclusive on all parties concerned, was laid down by this court in the case of Chamberlain v. Cleveland, 34 Ohio St., 551.
    The same principle is laid down by Cooley in his work on Taxation, 2nd ed., at page 661; Elliott on Roads and Streets (2 ed.), at Sec. 556.
    In the present case the land of the defendant in error was not distant, but contiguous to and abutting on the improvement for which it was- assessed.
    
      The same principle is laid down in the following cases: Cruger, In matter of, 84 N. Y., 619; State v. District Court, Ramsey Co., 29 Minn., 62; King v. Portland, 2 Ore., 146.
    Even the text writers and courts which hold that' the state has no power to assess arbitrarily the cost of the improvement upon the abutting property, concur in declaring that they have the power to assess an amount equal to the benefits derived from the improvement, and that the exercise of such power in this manner is just and equitable. Dillon Municipal Corporations, at Secs. 752 and 761; Cooley on Taxation, 639; Elliott on Roads and Streets (2 ed.), Sec. 543; Mr. Hare on American Constitutional Law7, pages 305 to 315.
    By a review7 of the decisions we find that the courts in every jurisdiction have upheld this theory of assessments, and sustained those levied in accordance w7ith it. So uniform and so decisive are the authorities on this subject, that it is scarcely necessary to do more than comment on a few7 of the leading decisions.
    Their purpose of adhering to this doctrine w7as clearly expressed in the case of Spencer v. Merchant, 125 U. S., 345; and also in Parsons v. District of Columbia, 170 U. S., 45.
    The intention of the Supreme Court to stand by its early decisions on assessments levied according to benefits has lately been expressed in the case of Norwood v. Baker, 12 O. F. D., 228; 172 U. S., 269.
    This intention is still further showm by the recent case of French v. Paving Co., 181 U. S., 324.
    The highest tribunal of every state in the Union has, in the absence of constitutional prohibitions^ followed this theory adhered to by the Supreme Court of the United States.
    Further, it has been repeatedly held by this court that the cost of street improvements, whether such improvements consisted in acquiring land for street purposes, or of grading, curbing and paving them after their acquisition, could be assessed against such adjacent, contiguous or abutting property as was peculiarly benefited by the improvement in a degree different from the benefits received by the public at large. Meissner v. Toledo, 31 Ohio St., 387; Walsh v. Barron, 61 Ohio St., 15.
    The only case' in which any court has apparently made a distinction is in the decision rendered by this court in the case of the Railway Co. v. Cincinnati, 62 Ohio St., 465.
    
      Messrs. Dwyer & Roehm and Messrs. Young & Young, for defendants in error.
    It appears from the petition that the assessments sought to be enjoined are both to pay compensation and expenses connected with the opening of two public streets in the city of Dayton. The provisions of the statute seem to justify the city in assessing these amounts according to the benefits upon the abutting adjacent and contiguous property.
    But the question now is is such procedure and are such statutes constitutional under the constitution of Ohio?
    The constitution contains the following provision, namely, Sec. 19 of Art. 1, concerning the inviolability of private property; Sec. 6 of Art. 13 -concerning the the organization of cities and Sec. 2 of Art. 12 concerning taxation by uniform rule.
    
      The provision as to the inviolability of private property clearly prohibits the taking of private property for private use without the consent of the owner. Reeves v. Wood Co., 8 Ohio St., 333.
    Nor could private property be taken for private use even were there no constitutional provisions on the subject. Shaver v. Starrett, 4 Ohio St., 494.
    The power of eminent domain is a general incident to sovereignty and is conferred on the general assembly by the general grant of legislative power. Section 7 of Art. 2; Giesy v. Railroad Co., 4 Ohio St., 308.
    Section 19 of Art. 1, is an express limitation in the power.
    It appears from the petition that the assessment enjoined was sought to be made to pay the compensation and expenses in connection with the taking of private property to open public streets. A public street in a city is a road open to the public without charge. Such a road may be opened by proceedings in condemnation where the public welfare requires it. The taking of private property for such public purpose is therefore unquestionably in itself within the power of a municipal corporation. It can only be taken by the public and for the public and it must be aid for by the taker and the taker is the public.
    After the property has been taken upon the theory that it is taken by the general public for the general public, how is it competent for this general public (in this instance'the municipal corporation), after this theory of public use has served its temporary purpose, to then turn around and take the position that the use, benefit and advantage of the improvement is limited in reality, to a few individuals, owners of private property, in the vicinity, who are asked to pay the entire expense, and to seek to compel them to do so by assessment against their will.
    If it be true, as contended, that the land taken for a public street must be paid for by the public, then it must be paid for out of the general revenue, and general revenue, under Art. 12a, Sec. 2, can only be raised by taxation; that is, by a tax levied by a uniform rule, not by an assessment. Hill v. Higdon, 5 Ohio St., 243; Schroder v. Overman, 61 Ohio St., 1.
    The principles laid down in the above cases are certainly directly in point and are decisive of the present case. It follows from them that the assessments sought to be enjoined are unconstitutional, invalid, and were properly enjoined, and the judgment of the circuit court should be affirmed. Along the same line we refer the court to the following: Hammett v. Philadelphia, 65 Pa. St., 146; Washington Avenue, 69 Pa. St., 352; State v. Elizabeth, 37 N. J. L., 330; State v. Mayor, 37 N. J., 415; Tide Water Co. v. Carter, 18 N. J. Eq., 518; Macon v. Patty, 57 Mass., 378; Hall v. Kenosha, 29 Wis., 205; Jones v. Water Commissioners, 34 Mich., 273; Chicago v. Baer, 41 Ill., 306; Lee v. Ruggles, 62 Ill., 427; Burr v. Carbondale, 76 Ill., 455; Crawford v. People, 82 Ill., 557.
    Whether private property taken for street purposes is paid for out of the treasury by general revenue direct or out of the proceeds of bonds sold in anticipation of general revenue, in either event the city has no right to reimburse itself by assessment against the property of a few adjacent landowners.
    These principles are clearly laid down in the opinion in the case of Railway Co. v. Cincinnati, 62 Ohio St., 465, in which, among other things, Burket, J., delivering the opinion of the court, says: “In Zanes
      
      ville v. Richards, 5 Ohio St., 589, this court held that Sec. 2 of Art. 12 of the constitution is a limitation upon the power of taxation which the general assembly can grant to a municipality under this section, and that general revenue is required to be raised by uniform levy on all taxable property, alike without exemption.”
   Burket, J.

Some technical errors are alleged in the petition, but the question as to the power of the city to make the assessment, is the only one regarded as of sufficient importance to warrant a report of the case.

It was determined in the case of Railway Company v. Cincinnati, 62 Ohio St., 465, that Sec. 19 of Art. 1 of the constitution is a limitation on Sec. 6, Art. 13, as to the power of assessment, and with that holding we are still fully satisfied. In that case there was one dollar awarded to the railway company as compensation for lands appropriated, and over five hundred dollars assessed upon the remaining lands for compensation, damages and costs paid for lands taken in the same appropriation proceedings. It therefore seemed clear in that case that the assessment of over five hundred dollars was «not an assessment back onto the remaining lands, to raise money to pay the one dollar and costs, but was in part at least an assessment to pay for compensation awarded to others; and as the whole assessment was held unconstitutional, the holding was in. effect that no assessment could be made to raise money to pay compensation for lands taken by appropriation. We so understood that case, and what was said in the opinion was with reference to that understanding, and was not obiter, but argument to show that money could not be constitutionally raised by assessment to pay compensation, damages and costs for lands appropriated by the public for public use.

The limitation of said section 19 of the constitution on said section 6 as to assessments, goes, not only to the extent of preventing the assessment of the compensation, damages and costs back onto thé lands of the owner remaining after the taking, but to the full extent of prohibiting the assessment of compensation, damages and costs for land so appropriated, upon any real estate whatever. In short, money cannot be raised by assessment to pay such compensation, damages and costs, but such money must be raised by taxation. Were it otherwise, said section 19 of the constitution could be evaded and that done by indirection which cannot be done directly.

The public appropriates the land for public use, and the public must pay for the land it so takes. Nothing less than the public can appropriate lands by legal process for public use. If an assessment district should be formed and a petition filed by such district to appropriate private property for the use of such district, or the public, a demurrer to such petition would be sustained on the ground that the constitution gives no power of appropriation of private property to such assessment district, such district not being the public, and the power of appropriation being given by said section 19 to the public only.

The power of appropriation being given to the public only, and only for public use, it follows that the public, the taker, must pay for what it takes, because he who takes from another should himself make restitution, and not compel others to pay for what they have not taken. To permit the public to take private property for public use, and then compel private persons to pay for such property against their will, upon the theory that their lots and lands are benefited, would lead to extravagance and often to oppression, while to compel the public, which takes the property for public use, to pay therefor, leads to economy and prudence in taking private property for public use, and therefore said section 19 was made a limitation on said section 6, and the power of raising money by assessment to pay for private property taken for public use, is thereby prohibited.

It is urged that in this case no property of the defendant in error was taken, and no assessment made back on the property remaining after such taking, and that therefore the principle in Railway v. Cincinnati, supra, does not apply. ’ The answer is that the principle of that case is that said section 19 is a limitation on said section 6 to the extent of a total prohibition of raising money by assessment to pay for private property taken by the public for public use. The principle is not that those only whose property has been taken are free from assessment, but that no assessment can be made to raise money to pay for property taken by the public for public use.

To exempt those from whom some property has been taken, and assess others, would often lead to inevitable injustice. As the constitution was adopted to promote our common welfare, and for the equal protection and benefit of all, and as that instrument is consistent throughout, a construction which necessarily leads to injustice cannot be a true one, and should not be adopted, and therefore the construction of section 19 is and must be that private property taken by the public for public use, must be paid for by the taker by taxation on the general list, and not by assessment on a comparatively small district.

It is also urged that if said section 19 is a limitation upon said section 6 so- as to prevent the raising of money by assessment to pay for private property taken for public use, that the same limitation prevents the raising of money by assessment to pay for sewers, surface improvement of streets, etc. This does not follow, for the reason that in sewers, surface improvement of streets, etc., there is • no taking of private property by the public for public use; but on the contrary the public confers a special benefit upon the property and then enforces an assessment not exceeding the benefit so conferred. If the assessment should exceed the special benefit, it would be unconstitutional as to such excess, by reason of the limitation of said section 19 on the power of assessment. It was so held in Chamberlain v. Cleveland, 34 Ohio St., 551, and Walsh v. Barron, 61 Ohio St., 15.

While a séwer or surface improvement of a street may, to some extent, be used by the public, and therefore be in part for public use, the power of assessment exists only to the extent that the improvement is for the special benefit of the lots and lands to be assessed over and above the general benefit to the public. Said section 19 is a limitation upon the power of assessment for the use of the public, because to assess private property beyond the special benefits conferred thereon by an improvement, to pay for such improvement for the use of the public, would be taking private property for public use without first making compensation therefor; while to take back by way of assessment a part or all of the special benefit conferred by the improvement, is not a taking of private property for public .use, and such assessments are not prohibited by said section 19 of the constitution.

It is urged that to affirm the judgment in the case at bar involves the overruling of Meissner v. Toledo, 31 Ohio St., 387; Chamberlain v. Cleveland, 34 Ohio St., 551; Raymond v. Cleveland, 42 Ohio St., 522, and Krumberg v. Cincinnati, 29 Ohio St., 69. This last case was reviewed in Railway v. Cincinnati, 62 Ohio St., 465, 482, and needs nothing further here. Meissner v. Toledo, 31 Ohio St., 387, construed the statutes then in force, and did not pass upon their constitutionality, but assumed them to be constitutional. The question of their constitutionality was not raised or decided. The case of Chamberlain v. Cleveland, 34 Ohio St., 551, was decided in the light of Cleveland v. Wick, 18 Ohio St., 303, and the question as to whether money could be raised by assessment to pay for private property taken for public use was not raised, and was not argued or decided, but was conceded by counsel and assumed by the court. In the subsequent case of Raymond v. Cleveland, 42 Ohio St., 522, the judge delivering the opinion, in speaking of that case on page 525, says: “It is sufficient to say that the validity of the statutes upon the subject was not questioned, nor was the power to make an assessment for the improvement doubted.” The same is true of Raymond v. Cleveland, 42 Ohio St., 522. The validity of the statute and the power to make the assessment were both admitted in that case, and the only question argued, considered or decided was as to the proper construction of the statute, assuming the same to be constitutional. The question now before this court in the case at bar, was not raised in any of those cases, but was regarded as decided by Cleveland v. Wick, supra, and this last case having been overruled, the superstructure so far as founded thereon must fall. As to the questions passed upon in those cases in the construction of said statutes, and not their constitutionality, we regard the cases sound, and not in conflict with the conclusion reached by the court in this case.

Judgment affirmed.

Spear, Davis and Shauck, JJ., concur.  