
    Pretzinger v. Sunderland, Treasurer, etc., et al.
    
      Assessment for street improvements — Territory assessed maximum amount under section §270, Revised Statutes — Is exempt under section g?S8, Revised Statutes, for five years— From assessment for improvement of another street — Assessmcnt for sidewalk is assessment for improvement of street.
    
    
      Territory wliicR has been assessed for the improvement of a street, to the maximum amount allowed by section 2270, of the Revised Statutes, is exempt, under section 2283, for the period of five years thereafter, from assessment for the improvement of another street. And, an assessment levied by municipal authority for the construction of a sidewalk is an assessment for the improvement of the street, within the meaning of the last named section.
    (Decided June 19, 1900.)
    Error to the Circuit Court of Montgomery county.
    Suit was brought by the plaintiff in error, in the court of common pleas of Montgomery county, against W. P. Sunderland, the treasurer of that county, and the city of Dayton, to enjoin the collection of an assessment levied on a lot of the plaintiff, to pay for a sidewalk which the authorities of the city had caused to be constructed along one line of the lot. The following is the petition in the case:
    “The plaintiff, Rudolph Pretzinger, says that he is the owner of that part of ontlot twenty-three on the plat of the city of Dayton, Ohio, which lies on the corner of Main street and Wyoming street, fronting 305 feet on Main Street and about 235 feet on Wyoming street. The defendant, Sunderland, is treasurer of Montgomery county, and of the city of Dayton. The defendant, the city of Dayton, is a city of the second grade of the second class. The city of Dayton, in the year 1895, paved Main street in front of the property of the plaintiff aforesaid, and assessed against it upon the tax duplicate for such paving the sum of about $950. The taxable valuation of said property at the time, as it stood upon the tax duplicate (which is the same now), was only thirty-seven hundred and thirty dollars ($3780), and the authorities of the city of Dayton, upon application, remitted the excess over twenty-five per cent, and placed against the said property the sum of $932.50, being the one-fourth of such taxable valuation, divided into ten annual installments, with interest, the unpaid portion being yet upon the premises under such assessment. In the year 1894, the city of Dayton passed a resolution to make new sidewalks on Wyoming street along the south line of the property of the plaintiff herein described, and in the year 1896 proceeded to make the same out to Main street. For the cost of making said sidewalk the said city assessed against the property aforesaid the sum of $159.90, and upon the refusal of the plaintiff to pay, it assessed a penalty of $23.16, and placed upon the duplicate for collection by said Sunderland the sum of $183.06, which said Sunderland is demanding, and will proceed to collect, if not restrained, by the sale of the property, or other process of law. The plaintiff says that, as alleged, his property has already been assessed for its full assessable value for any street improvement, and further assessment is illegal for the period of five years from the year 1895.
    Wherefore he prays for an injunction against the said Sunderland, as treasurer, to prevent him from attempting to collect the same during the pendency of this suit, and upon the final hearing for a perpetual injunction, and for costs and other relief.”
    A demurrer to the petition was overruled, and the defendants not desiring to further plead, judgment was rendered for the plaintiff as prayed for in the petition. That judgment was reversed by the circuit court, for error in overruling the demurrer; and the case was then brought on error to this court.
    
      McMahon & McMahon, for plaintiff in error.
    The purpose of this action was to invoke the protection of the statute providing for the limitation of assessments. Section 2283, Revised Statutes.
    The limitation of 25 per cent, is found in section 2270, qualified by section 2272.
    The plaintiff is the owner of a corner lot. The statutory limit of taxation (25 per cent.) had already been exhausted in the paving of Main street. The assessment in controversy was for the making of a sidewalk on Wyoming street. Both improvements were made within five years.
    The question presented is: Are the words of the section, “for making two different streets or avenues,” sufficiently comprehensive to cover the making of a sidewalk only?
    The word, “street,” is comprehensive. It includes sidewalk. While there may be special legislation as to sidewalks, as only a part of the street, and while streets in a limited sense may be “improved,” yet when property is condemned for the “making” of a new street the sidewalk is always contained in the property condemned or acquired. There is no provision for “sidewalks,” by that name, in section 2232. The width of the street always includes the sidewalk; and the width of the sidewalk, as a part of the street, is a matter within the discretion of the authorities having the power under the particular charter. They have the power to assign the areas to be occupied by the foot passenger and the ordinary street vehicle, and they may vary this area — having general control of the “street.”
    As to the meaning of the word “street,” and its inclusion of the sidewalk, we cite: Dooley v. Sullivan, 112 Indiana, 453; Wiles v. Hoss, 114 Indiana, 371; Burgmeister case, 76 New York, 174; Phillips case, 60 New York, 16.
    The term “street,” in ordinary legal signification, includes all parts of the roadway, the gutters, and the sidewalks. Elliott on Roads, page 17.
    Upon the principle that the greater contains the less, it would seem clear that if you could not make a new street, the cost of which would exceed the statutory limitation, you could not make a sidewalk having the same defect.
    Now bearing in mind the broad meaning, which Elliott says is the ordinary legal signification of the word “street,” it would seem clear that the circuit court erred, in view of the rule laid down in the following decisions in this court, construing section 2327, Revised Statutes. Cincinnati v. Connor, 55 Ohio St., 82; Birdseye v. Clyde, 61 Ohio St., 27.
    
      Edioin P. Matthews, City Solicitor, for defendants in error.
    Subdivision 1 of Chapter 4 is entitled “Assessments in General,” and comprises sections 2262 to 2314-b.
    
      Some of the provisions of this subdivision are applicable to sewer and sidewalk improvements, but not all of them.
    Section 2270 limits the assessment for any improvement to twenty-five per cent, of the tax valuation of the property. This provision has been held to mean any one improvement, but not to apply to two separate improvements, neither one of which equals the twenty-five per cent., but which together exceed it. Hunt v. Hunter, 11 C. C. R., 69; 5 Circ. Dec., 90.
    The twenty-five per cent, limitation has been held to apply to street paving, sidewalk and sewer improvements. Cincinnati v. Connor, 55 Ohio St., 82.
    It is under section 2283 that Mr. Pretzinger seeks to escape the sidewalk improvement.
    It is contended by the plaintiff in error that the word “street” in section 2283 may be read “sidewalk.”
    This position we do not believe is sound.
    The word “street” in its broadest sense includes everything between property line and property line, but the context of chapter -1 shows that the word “street” as used therein means the roadway.
    Under the said subdivision 1, streets or roadways may be constructed, but not sidewalks or sewers.
    Sundry of the supplemental sections of this subdivision, beginning with section 2293-a, authorize cities to improve streets, avenues or highways, by paving with granite block, asphalt, etc.
    The Dayton paving act, found in Ohio Laws, Vol. 87, page 288, authorizes street's, avenues and highways to be paved with granite block, asphalt, etc. These provisions mean roadways of streets, and do not include sidewalks.
    A law is found in volume 82, Ohio Laws, pages 122, 123.and 124, in relation to improvements around state property. Part of the act is in regard to street improvements, and section 2 makes certain provisions, with regard to sidewalk improvements. If “street” includes “sidewalks” in the sense in which it is used in the statutes, why insert provisions with regard to sidewalks?
    Subdivision 2 of chapter 4 relates to damages. Subdivision 3 is entitled “Sidewalks and Water Courses,” and the whole subdivision, except the last section, 2335, relates to sidewalks.
    Under the first and second subdivisions roadways, of streets may be paved by the city, no opportunity-being given to the property holders to do the work,, and in such cases there must be a resolution declaring the necessity of the improvement, and an ordinance afterward providing for it. It will hardly be claimed that in a proceeding to improve or pave a. street under these subdivisions or under the Dayton paving act, that the sidewalk can also be paved and the cost be specially assessed.
    Under subdivision 3, the city proceeds by merely passing a resolution providing fob a sidewalk, whereupon notice is given to the property holder, who has-thirty days in which to do the work himself, and only upon his default can the city do it, and assess the cost against his property. Section 2330, Revised Statutes.
    So far as we find any expression of the courts of Ohio in regard to the meaning of the word “street” as used in these assessment statutes, they have construed it to mean “roadway.” Hunt v. Hunter, 11 C. C. R., 74; 5 Circ. Dec., 90; Cincinnati v. Fugman, 5 N. P., 14; 5 Dec., 530; Hemmelmann v. Satterlee et al., 50 Cal., 68.
    
      A resolution of intention to curb and macadamize a street does not include the sidewalk. Dyer v. Chase et al., 52 Cal., 440.
    Section 2307 of the Revised Statutes provides for sprinkling streets. It will hardly be contended that under the provisions thereof sidewalks are to be sprinkled.
    Subdivision 5 of Chapter 4 provides for the construction of sewers, and the assessment of the cost thereof.
    It seems to ns that it can be urged with equal force that the prohibition of section 2283 against double assessments applies to sewers as well as to sidewalks. Manifestly it does not apply to sewers, although sewers are often constructed in a street, below the surface.
   Williams, 3.

The assessment for the paving Main street having been levied on the plaintiff’s lot in 1895, to the full amount of twenty-five per cent, of its taxable valuation, the question here presented is, whether, on that account, the lot is exempt from the assessment laid upon it in 1896, for the cost of the sidewalk constructed on Wyoming street. The exemption of the lot from that burden is claimed by the plaintiff under section 2283 of the Revised Statutes, which provides that: “Special assessments, whether by the foot front or otherwise, shall be so restricted that the same territory shall not be assessed for making two different streets or avenues, within a period of five years, in such amounts that the maximum assessment herein provided will be thereby exceeded; and so far as practicable under the provisions of this title, regard must be had in making special assessments to the probable benefits to the party assessed.” The statutory provision which fixes the amount of the “maximum assessment” referred to in this section, in municipal corporations of the class to which the city of Dayton belongs, is that contained in section 2270, as follows: “The tax or assessment specially levied and assessed on any lot or land, for any improvement, shall, in no case, * * * amount to more than twenty-five per centum of the value of the property, as assessed for taxation, and the cost exceeding that per centum shall be paid by the corporation out of its general revenue.” Certain exceptions are made to this limitation on the amount of the assessment, but the case before us does not come within any of them. So that, the assessment in controversy here, having been levied on the plaintiff’s lot Avithin five years after that laid for the paving of Main street, cannot be sustained, if both are assessments of the kind mentioned in section 2283, that is, “for making two different streets or avenuesand Avhether they are assessments of that nature, or not, is the real question in the case. It must be admitted that Avkat is meant by the language of the section “for making two different streets or avenues,” is not free from doubt. In giving construction to the section the rule must be observed, that, where there is ambiguity in a statute with respect to whether a tax, or public burden of that nature, is imposed, or authorized to he imposed, it should receive that construction Avhich is most favorable to the citizen or subject sought to be charged with the burden. Cincinnati v. Connor, 55 Ohio St., 82-91. It can scarcely be claimed, and we do not understand it is claimed, that the phrase “making two different streets or avenues,” is used exclusively in the sense of constructing entirely new streets or avenues where there had been none before; nor that the restriction imposed by the section against double assessments on the same territory, within the designated period, is confined to cases of that kind. It evidently was the legislative intention that the restriction should include and apply to assessments for improvements made of existing streets; for, it was the evil of unreasonable and excessive, public burdens arising from local assessments that the statute was designed to prevent. There is nothing in the section that limits its application to assessments for any particular-kind of improvement, further than it must be the improvement of a street or avenue. Such improvement may be made by the construction of sidewalks, as well as by paving, or otherwise improving, the roadway. Sidewalks a,re a part of the street; their construction is an improvement of the street which contributes to the convenience of the public in its use; and assessments for their construction are of the same general nature, and levied on the same principle, as those for the improvement of that part of the street between the sidewalks. Moreover, the mischief which, it was, the purpose of the statute to remedy, as certainly arises when the aggregate amount of assessments, levied on the same lot for the construction of a sidewalk on one street and the improvement of the road■way of another street exceeds the statutory limit, as when that limit is exceeded by assessments for two street improvements of the latter character; and no-reason is discovered why the statute should not be-applied in the former case, as well as in the latter. Both classes of cases appear to be equally with the spirit and intent of the statute. It would seem but just and reasonable that when one quarter of at owner’s estate in land is taken for a municipal hr provement made for the public convenience, without other compensation than conjectured benefits to him, in the estimation of which he has no voice, he should have a brief respite from further burdens of that nature, on the same land.

We are of the opinion that the assessment which plaintiff seeks to have enjoined was unauthorized, and that the judgment of the circuit court should be reversed, and that of the common pleas affirmed.

Judgment accordingly.  