
    Lewellyn et al. v. Village of South Zanesville et al.
    (Decided March 30, 1932.)
    
      
      Mr. Clarence J. Crossland, for plaintiffs.
    
      Mr. L. M. Soliday and Messrs. Pugh é Van Dervoort, for defendants.
   Sherick, P. J.

This is a suit in equity appealed to this court by the defendants, the village of South Zanesville and others. The plaintiffs, Oliver T. Lewellyn and other heirs of Lucy A. Lewellyn, by their petition seek injunctive relief under Section 12075, General Code, against the imposition and collection of special street improvement assessments as levied against their property, which they own in common. Their complaint is based on the assertion that their property is assessed in excess of 33% per cent, of its actual value after the improvement was made, in contravention of Section 3819, General Code. Only the excess assessment, over and above 33% per cent., is objected to.

In considering the questions presented, Oliver T. Lewellyn will be hereinafter referred to as the petitioner. He is the owner of the undivided one-half of the fee of the assessed property. The remaining plaintiffs are the children of Oliver T. Lewellyn and Lucy A. Lewellyn, his wife, who is now deceased, and from whom they inherit the other one-half of the fee to the assessed property. These plaintiffs will for convenience be termed the heirs.

The cause is submitted on an agreed statement of facts, the substance of which is: The petitioner’s wife died prior to May 21, 1928. Her half interest in the assessed property was inherited by her heirs. The agreed value of the property after the improvement was made is $600, and the total assessment as certified for collection is $779.20. It is agreed that the street was improved prior to the making of the assessment.' In February, 1928, the petitioner, together with others, petitioned the village in writing to improve the street. Neither the petitioner’s wife nor her heirs signed this petition. On May 21, 1928, the council resolved to improve the street in the manner requested by the petition, and adopted the foot-front plan of assessment. Notice of the passage of the resolution was at once served on the petitioner. The heirs, however, were not so served.

Thereafter all further legislation was duly passed and the street improvement was fully completed and accepted by the village, and an assessment roll was then prepared and placed on file with the clerk of council, and notice thereof was duly published as provided by law, but none of the plaintiffs filed any objections within two weeks after the expiration of the notice mentioned.

Included in the agreed statement of facts is the petition for the improvement. It reads as follows:

“February-, 1928.

“The So. Zanes Council,

“So. Zanes, O.,

“We the undersigned are Property Owners, on Penbrook Ave., and we do hereby ask the council of So. Zanes to Grade — Curb Drain & Pave with concrete the Ave. known by North Penbrook Ave. from Main St. to LaSalle St., and also grade stakes for Side Walks but no Side Walk laid.

“We remain Yours, Property Owners.”

Thereafter follow the names of some nine property owners, among which is found “O. T. Lewellyn, 132 ft. frontage.” The agreed facts are silent as to whether or not this petition was ‘ ‘ subscribed by three-fourths in interest of the owners, or the owners of sixty percent of the foot frontage of property abutting * * But, this fact not being questioned, the presumption must be indulged that the petition was sufficient and “regularly presented to the council for that purpose.” The two quotations immediately heretofore employed are of course taken from Section 3836, G-eneral Code, as it now stands re-enacted in 1927,112 Ohio Laws, 206.

The questions presented to this court for solution must be considered from two aspects, the first of which we consider to be the right to relief possessed by the plaintiff heirs. Treating the petition for the improvement in the manner indicated in the next preceding paragraph, we reach the conclusion that the plaintiff heirs have been illegally assessed in excess of 33% per cent, of the actual value of their undivided one-half interest in the property; that is, that their half interest cannot be legally assessed for an amount in excess of $100, and the collection of all above that sum is permanently enjoined, as prayed for. Our reason for so holding we would now expound.

It is provided, in part, in Section 3836, General Code, that, “When the lot or land of one who did not subscribe the petition is assessed, such assessment shall not exceed thirty-three and one-third per cent, of the actual value of his lot or land after improvement is made.” It therefore seems clear that the intent of the Legislature was that a nonsubscribing property owner to a street improvement petition should not be estopped by his silence and inactivity in protesting the making of such an improvement in conformity to such a petition, even though that property owner knew, or must have known, that his portion of the assessment, irrespective of the manner of assessment adopted by council, would exceed the one-third value of his property after the improvement was made.

In other words, the Legislature did not contemplate by the re-enactment of Section 3836, General Code, to repeal the salient provision contained in Section 3819, General Code, as to limiting assessments to 33% per cent, of the property’s value.

W® entertain the opinion that a nonsubscriber to such a petition has a right to presume that the municipal authorities will do that for him which the law requires and prescribes, in that it will not confiscate his property by imposing an assessment thereon greater than its value, for which he did not petition and which he did not in any way instigate or encourage; rather it would seem to be the duty of municipal officials to check the owners of property prior to improvement legislation to determine by estimate whether the property of a nonsubscriber thereafter to be assessed could legally bear the assessment finally imposed. Such action would protect the property owner and the public treasury.

We have been placed in possession of a portion of the Supreme Court file in the case of Conkle v. City of Bellevue, 117 Ohio St., 585, 159 N. E., 581, from which it appears that that case dealt with an assessment made by the foot-front plan, after the improvement was completed. It does not, however, appear therefrom whether or not plaintiff therein petitioned for or encouraged the improvement. The trial court and Court of Appeals of the Sixth District held “that Sections 3848 and 3895 apply to an assessment by the foot front method, and, as the plaintiff did not file objections under the provision of Section 3848, he cannot now avail himself of the remedy by injunction provided by Section 12075.” This judgment was reversed by the Supreme Court without further comment than “In the opinion of a majority of this court, Section 12075 of the General Code provides a concurrent remedy under the facts and circumstances of this controversy.”

The facts and circumstances of the Conkle case being the same as the facts of this case, except in one particular hereinafter to be noticed, which applies only to the situation of the heirs herein, compel this court to follow the final decision therein, which we think is supported by our reasoning hereinbefore stated.

In this case appears the fact or circumstance that the heirs are tenants in common, and in this alone does this case differ from the Conlde case. A tenant in common is without doubt the absolute owner of that portion of undivided real estate of which he is possessed, and of which he may dispossess himself by proper conveyance. And it is likewise self-evident that one cotenant cannot convey away the interest of another cotenant, and if he cannot convey away he cannot create a lien upon the interest of his cotenant unless duly authorized and empowered so to do. And it must be apparent that when one subscribes a property owner’s petition for a street improvement, he thereby, under Section 3836, General Code, consents to the creation of ah assessment lien as against his property, which is the basis of the municipality’s future right to assess his property. He cannot by his unauthorized act charge his cotenant’s interest with an assessment lien, any more than he could mortgage it.

The presumption that the petitioner was authorized to charge the heirs’ interest in this instance is overcome by the agreed facts, and it is not agreed that the petitioner had authority to sign for and bind the heirs. The holding of the court in Tone’s Executors v. City of Columbus, 1 C. C., 305, 307, 1 C. D., 168, affirmed without report 16 W. L. B., 309, fully states our view. “The regularity of the proceedings of the city council is presumed, and the plaintiffs are charged with the burden of proving the irregularity which they allege. And .this is true, although it calls upon them to prove a negative. But this presumption is not so far reaching as counsel for defendants claim. One who, upon the issues joined, is charged with the burden of proving a negative, is not bound to furnish plenary proof, that is, proof excluding every hypothesis upon which the fact might be otherwise than as he asserts it to be. Consideration is due to other piesumptions of law and to the rules which take account of the conveniences of parties in offering their evidence. Where the plaintiffs have shown that the owner’s signature was not affixed by herself, it is the duty of the defendants who assert the validity of the signature, to show that it was affixed by some one who had authority.”

Considering the validity of the assessment over and above the 33% per cent, of its value as against the petitioner’s interest in the assessed premises, we are of opinion that the petitioner is entitled to the relief prayed for. We feel that we are in part supported from our understanding of the Gonhle case, supra. On the other hand, we perceive another logical deduction which prompts us to that end.

It is held in Winchell v. Village of Dennison, 5 Ohio App., 103, 107, that a “petition presented to council was in the nature of the’ offer or proposition in a contract.” This is adopted as a sound principle in the more recent case of DeArmond v. City of Hamilton, 27 Ohio App., 258, 261, 161 N. E., 29. If it be true that the petitioner’s written request of council is an offer sounding in contract, and accepted by the village in its legislation for improvement, surely it must follow that the terms of such a contract cannot by court construction be enlarged so as to include a waiver of tax limitations provided by statute, unless there be some higher law so permitting.

We have previously herein concluded that the reenactment of Section 3836, General Code, did not repeal or abridge Section 3819, nor do we think that Section 3836 limits the application of the last section of the chapter on assessments, Section 3911, General Code, wherein it is provided that “the proceedings shall be strictly construed in favor of the owner of the property assessed or injured, as to the limitations on assessment of private property.”

The petition for improvement in this instance does not purport to waive any tax limitation. It is not shown or agreed that the petitioner knew or should have known that the cost of the improvement was far in excess of what he could legally be made to pay. He without doubt contemplated some benefit from the improvement, and it is safe to say that he did not anticipate that his property would be confiscated. He is not estopped by his act in signing the petition or by his conduct thereafter.

We do not consider the question to be an open one in this state. The amendment of Section 3836, General Code, is not such as materially changes the law as it previously stood in this respect. The Supreme Court, considering this section in 1921, in the case of Roebling v. City of Cincinnati, 102 Ohio St., 460, 132 N. E., 60, held, in the second paragraph of the syllabus : “A petition presented to the council of a municipality by the required number of property owners, under Section 3836, General Code, may effect a waiver of the limitations of amounts that may be assessed against their properties provided by other sections of the General Code, depending on a construction of the subject-matter of the petition itself; and in determining this the language used must be strictly construed against the municipality and in favor of the petitioners.”

The mere fact that one signs a street improvement petition does not waive his right to the benefit of tax limitations. What the petition says in this respect is all-important. Section 3836, General Code, as it now stands, does not nullify Section 3819 or 3911; and the remedy of injunctive relief under Section 12075 is cumulative and is not lost in this instance by failure to object to the assessment as authorized by Section 3848, General Code.

A decree may therefore he entered for plaintiffs, as prayed for.

Decree for plaintiffs.

Lemert and Montgomery, JJ., concur.  