
    Birdseye et al. v. The Village of Clyde et al.
    
      Assessments for local improvements — Limitations upon — Revised Statutes, 2270 — Act of February 1,1893 construed — Petitioner not estopped to enjoin assessment, when.
    
    1. It is the general policy of our legislation to restrain the power of local assessment by fixing a limit on the amount that may be levied beyond which municipal corporations may not go; and unless the contrary clearly appears, an intention to adhere to that policy in the enactment of particular statutes relating to local assessments, will be presumed, and a construction given to them, if possible, allowing the application of the general limitations.
    2. The provision of Section 2270, Revised Statutes, which forbids the levy by incorporated villages of any assessment on any lot or land for any improvement in excess of 25 per centum of the value of the property as assessed for taxation, is applicable to assessments for improvements made under the act of February 1, 1893 (90 O. L. L., 434); and the excess of any such assessment may be enjoined at the suit of the owner of the property upon which it is laid.
    '3. The owner is not estopped to maintain such an action by having acquiesced in the construction of the improvement, nor by petitioning therefor and thereby consenting to the raising of a certain proportion of its cost by assessment on all abutting property. By such acts he binds his property for the payment of its proper share of a legal assessment for the cost of the improvement, but no further.
    (Decided October 24, 1899.)
    Error to the Circuit Court of Sandusky county.
    A sufficient statement of the case appears in the opinion.
    
      Richards, Heffner & Parkhurst and M. W. Hunt, for plaintiffs in error.
    It cannot be assumed that the legislature intended in this act (90, O. L. L. 434.) to reverse the policy of the State and to give despotic power to any village which had a population of “not less than 2320 nor more than 2350.”
    A more reasonable intendment is that those matters not specially provided for by the act, were to be regulated by the general laws of the State, to-wit, by chapter 4, of division 7 of the Revised Statutes. City of Cincinnati v. Connor, 55 Ohio St., 82.
    The above case is especially pertinent on another’ point also, namely, that in construing a statute imposing taxes, the statute must be strictly interpreted,, and doubts resolved in favor of the citizen.
    Indeed, R. S. 2327 provides that proceedings shall be strictly construed in favor of the owner of the property assessed, as to the limitations on assessment of private property.
    We think it plain that the council could not assess more than the amount limited by statute. Kreling v Muller, 86 Cal., 465; Cincinnati v. Shaw, 3 Law Bul., 556; Strauss v. Cincinnati, 23 Law Bul., 359; 10 Dec. (R. E.) 783; Hunt v. Hunter, 11 O. C. C., 69; 5 Circ. Dec. 89.
    The fact that some of the plaintiffs petitioned for-the improvement, requesting that two-thirds of the cost be assessed upon the abutting property does not estop them from insisting upon the assessment being limited to 25 per cent, of the assessed value of their respective lots.
    They had the right to expect that the amount of the assessment would be limited by the statute. Tone v. Columbus, 39 Ohio St., 281; our case is precisely like the 22 Mich., 104; New Brunswick Rubber Co. v. Commissioners, 9 Vroom, 190; Storer v. City of Cincinnati, 4 O. C. C., 279; 2 Circ. Dec. 546. Affirmed without report by this court. 24 Law Bul., 371; 6 Circ. Dec. 738; Baker v. Schott, Treas., 10 O. C. C., 81.
    The petition in that case is printed in 31 Law Bui. 335, and contained an express assent to an assessment for the cost of the improvement, and yet the circuit court held, and properly, we say, that there was no estoppel against having the benefit of the 25 per cent, limitation. In the Matter of Petition of Sharp, 56 N. Y., 257.
    
      J. C. Craig, Solicitor; J. D. Finch and Homer Metsgar, for defendants in error.
    That the improvement made was provided for by a statute other than the general ones, and the special act having provided how work done under it shall be paid for, it must be followed.
    So it is clear that this work was not done under the general statutes, but was done under the special act, which act fully provides how work done pursuant to it shall be paid for.
    No one questions the constitutionality of the act or desires it to be questioned for reasons not necessary to be herein stated; and besides, the parties plaintiff having invoked the action of the village council under it, or having in silence taken its benefits, knowing the assessment therefor was to be made as it was made, these parties are estopped to question the validity of the act.
    Having invoked the action of the village council under the special act, its provisions must be enforced. Birdseye v. Clyde, Ohio Legal News, March 14, 1898; 8 C. C. Decisions, 66.
    It is urged that while the special act provides for assessing, it also provides that it shall be done according to the laws of Ohio.
    This provision refers only to the manner of assessing and not to the amount. The amount is fixed by the special act, which is itself one of the laws of Ohio, especially applicable so far as it goes.
    There are other matters to be considered in making assessments aside from the amount, and in considering such as were not provided for in the special act the village is referred to the general statutes by this special act. 2 Story Eq. Jur., section 1546.
    Even had the work been done under the general statutes the limitation provided for in Rev. Stat. 2270, is for the land owner’s benefit and he certainly had a right to waive it. 6 Waite’s Actions and Defenses p. 714; Corry v. Gaynor, 22 Ohio St., 594; Steckert v. East Saginaw, 22 Mich., 104.
    But when a different apportionment is requested or consented .to by word or action a different rule prevails. Here the proposition to improve had been before the public in the newspapers until everybody understood it, and then with this full understanding these property holders actually ask in their petition to council-to have two-thirds of the cost assessed against their property, and to such assessment they expressly agreed.
    Merely petitioning for it with knowledge that the cost was to be so assessed would work the estoppel, do say nothing of actually asking that it be so assessed. Storer v. Cincinnati, 4 C. C., 279, 2 Circ. Dec. 546; Tone v. Columbus, 39 Ohio St., 281.
    It is the voluntary waiver of the 25 per cent, limit and not the petitioning for an improvement which works the estoppel.
    Those of the plaintiffs who did not sign this petition are equally estopped under authority of Tone v. Columbus, 39 Ohio St., 281, as well as Columbus ner prescribed by the general statutes for making assessments by that method beyond what the words “by the foot front” fairly import, which is, that the assessment is to be apportioned according to the v. Alger, 44 Ohio St., 485.
    If the circuit court was right in holding that the special act must control, Birdseyes are bound by its terms, for they knew that whatever assessment was to be made was by virtue of it, and that it contained no limitation as to the assessment. Storer v. Cincinnati, 4 C. C., 279; State ex rel. v. Mitchell, 31 Ohio St., 592; Columbus v. Sohl, 44 Ohio St., 480.
    The requisites of estoppel by silence under the authority of Tone v. Columbus, are all here.
    1. Knowledge that the improvement was being-made.
    2. That it was intended to assess the cost (and in this case two-thirds of the cost) upon his property.
    3. That the defect in the proceedings which he is to be estopped to assert was sure to exist.
    4. That special benefit accrued to his property by the improvement.
    1. These parties saw the improvement made.
    2. They knew by the newspapers, as well as by the petition which they were asked to sign, that the proposition was to assess them for two-thirds of the cost.
    3. They were bound to know that the law provided a limit of twenty-five per cent., Tone v. Columbus, and that a proceeding seeking to assess more was defective, but for the provisions of the special act.
    4. And they were benefited specially by reason of their property abutting this improvement.
    See also Kellogg v. Ely, 15 Ohio St., 64.
    In that case inaction was the sole ground of estoppel.
    The party could have enjoined the work.
    See also directly in point: 54 Ohio St., 257; 24 N. J. Eq., 201; 25 N. J. Eq., 295; 21 N. J. Eq., 283; 29 Ohio St., 500; 19 N. J., 376.
    The village authorities are the agents of the land owners, and the land owners are bound by their acts and by their omissions in the performance of the work: 7 Ohio St., 327; Bul. June 1, 1896, p. 318.
    The burden of proof is not upon the defendant village to show a valid assessment. Spangler v. Cleveland, 43 Ohio St., 526.
    Plaintiff having participated in securing improvement and expenditure of money, and having obtained the benefits resulting therefrom are estopped to deny the assessment. Mott v. Hubbard, Treas., 59 Ohio St., 199; McFarland v. Auditor, 5 N. P., 123; 5 Dec., 452; Cincinnati v. Manss, 54 Ohio St., 257; Doppes et al. v. Cincinnati, 16 O. C. C., 183, 8 Circ. Dec., 786.
   Williams, J.

The council of the village of Clyde, on the 8th day of March, 1893, adopted a resolution declaring that it was necessary to improve, by sewering, grading, curbing, and paving with brick, a designated portion of Main street in that village, and, that one-third of the cost should be paid by general tax, and the remainder assessed according to the foot frontage against the lots and lands abutting on that part of the street to be so improved. Prior to the adoption of the resolution a majority of the owners of the property which abutted on the proposed improvement signed and presented to the council the following petition:

“To the Village Council:
“The undersigned, a majority of the owners of the property abutting on Main street, between Elm street and the Western Reserve and Maumee turnpike do hereby petition your body for the improvement of said street between said points, and request the passage of the necessary ordinance, assessing the cost thereof as follows: one-third to be assessed upon the general tax list, and two-thirds upon the abutting property in proportion to the feet' front; to which assessment we do hereby agree. The improvement desired, consists of sewering and con-' structing the necessary culverts or drains, grading, paving and setting curb and gutter stones.”

After making due publication of the resolution, the council proceeded to- pass the necessary ordinance, and to let the contract, for the construction of the improvement; and, after its completion, assessed two-thirds of its cost upon the abutting property, according to the foot frontage, and ordered the assessment to be certified to the county auditor for levy. The assessment so made, on each of a number of the abutting lots, exceeds twenty-five per' centum of their valuation on the duplicate for taxation, and, in several instances, is in excess of the entire taxable valuation of the lot. The owners of some of these lots brought the action below to enjoin the excess of the assessment over twenty-five per centum of the taxable valuation of their lots, and obtained a decree in the common pleas court to that effect; but in the circuit court, where the cause was tried on appeal, the judgment was against the plaintiffs who are seeking its reversal here.

Authority for making the assessment in excess of twenty-five per centum of the taxable valuation of the abutting lots is claimed under the act of February 1, 1893 (90 O. L. L., 434), by which any village having at the last federal census a population between 2,320 and 2,350, is authorized to improve its streets and construct sewers. The proceedings here involved were had under that act, which is applicable to the village of Clyde,, and probably to that village only; and the contention is, that as the act makes particular provision for such proceedings by the particular class of corporations to which it applies, its effect is to exclude any limitation imposed by general statute with respect to the amount of the assessment that may be laid on abutting property, and itself attaches no limitation, except that the total assessment shall not exceed two-thirds of the cost of the improvement. Whether such is the operation of the act, which appears to have been the view taken of it by the circuit court, becomes an important inqfiiry in the case. It purports to confer on villages of the designated class, power to borrow money for the purpose of improving and paving their streets, and constructing sewers therein, and provides that, “two-thirds of the cost for improving and paving any street and constructing a sewer under such paved part, for which said street improvement fund shall be used, shall be assessed on the real estate bounding and abutting thereon, and according to the foot frontage of the real estate so bounding and abutting as provided by the laws of the State of Ohio.” It is not doubted that by the last clause above quoted, some of the provisions of the general statutes of the state relating to assessments by villages for local improvements are, by that reference,, incorporated into and become part of the special act,, and were intended to operate upon and govern assessments under the act. It is urged, however, that the reference is only to those provisions which prescribe the manner of making assessments by the front foot. But, there seems to be no particular manner prescribed by the general statutes for making-assessments by that method beyond what the-words “by the foot front” fairly imports, which is that the assessment is to be apportioned according; to the number of the feet front subject to the assessment, and, that manner is as certainly described in. the same language in the special act; so that, any reference to the general statutes for that purpose1 was not only unnecessary, but without any significance. The reference, we think, is rather to those-general provisions of the laws of the state-relating to local assessments in regard to' which the special act is silent, including, no-doubt, those providing for .the adoption of the-necessary resolution, and the improvement and. assessing ordinances, though these steps belong to-the mode of procedure for the accomplishment of the-improvement, and are required to- be taken, whatever method of assessment may be resorted to for the payment of the improvement. But while the-general provisions- alluded to are included in the reference in the special act, it by no means follows that others are not also. The language is broad enough to comprehend all general statutory regulations governing the making of assessments by incorporated villages on abutting property. Among ¡such general regulations in force when the special act was passed, and when the proceedings in question were had under it, is that contained in section 2270, of the Revised Statutes, which forbids the levy ¡by municipal corporations of the class to which the village of Clyde belongs, of any tax or assessment upon any lot or land for any improvement, in excess <of twenty-five per centum of the value of the property as assessed for taxation. From this and other similar statutory provisions, it appears to be a general policy of our legislation to restrain the power .of local assessment, by fixing a limit on the amount. that may be levied, beyond which municipal corporations may not go. The policy is a salutary one, established for the purpose of affording protection against unreasonable public burdens, and it is not to be presumed that, in the enactment of subsequent legislation on the subject of assessments, there was any intention to abandon it; naturally, the presumption would be, that the intention was to adhere to the policy, unless the contrary be clearly shown. In giving construction to- this special act, it should, therefore, if possible, be brought into harmony with section 2270 of the general statutes, and effect be given to the provisions of both. This, we think, may be done. If it had been intended by the former, to authorize assessments to be laid on abutting lots without limit upon the amount, the latter easily could, and no doubt would have been excepted from the provisions of the general laws of the state expressly made applicable to assessments under the special act. This was not done; and there appears to be no controlling necessity requiring the interpolation of the exception, by construction, nor such irreconcilable conflict between the two statutes, that both; may not operate together. While the special act' fixes the proportion of the improvement fund that may be raised by assessment, it is silent as to the amount, that may be laid on the specific lots and lands which, abut on the improvement; and in that respect the assessment is governed by section 2270, and subject to the limitation it imposes. The rules of interpretation in such cases, and some of the reasons therefor, are set forth in the opinion in Cincinnati v. Connor, 55 Ohio St., 82, and need not be repeated here. Much of what is there said is applicable here.

The further claim is made, in support of the judgment below, that the plaintiffs are estopped from contesting the assessments against their property because, with knowledge that the improvement was; under construction, they suffered it to proceed to1 completion without objection; or, if all of the plaintiffs not so estopped, those of them are estopped who-signed the petition that was presented to the council requesting the improvement to be made. The record shows that all of the plaintiffs knew of the progress of the improvement, and made no objection to its construction, or to. any of the proceedings under which it was constructed. This acquiescence on their part would be sufficient to estop them from attacking the validity of those proceedings. But they had! no knowledge of the amount of the assessment charged against their lots, and could have none, until the assessing ordinance was passed; and they promptly interposed with their injunction as soon as; they learned the assessment exceeded twenty-fiveper centum of the taxable valuation of their lots. Silence., or assent to the making of the improvement, could not operate as an estoppel to challenge the correctness of the assessment, for until the plaintiffs had [knowledge of the assessment it was their right to assume that it would be made in conformity with the law, and not in violation of the positive prohibitive provisions of the statute. To hold otherwise, would require them, not only to take notice at their peril of the illegal action of the public authorities, but to anticipate that in their official action they would disregard their legal duties. Their silence or acquiescence bound them no further than to submission to a proper assessment against their property, legally imposed. And, it can hardly be supposed that the plaintiffs who> signed the petition for the improvement intended thereby to donate their entire property to the public, or, what is practically the same thing, consent to an assessment that would amount to its confiscation. They evidently contemplated that some special benefit would accrue to them from the construction of the improvement, which could not possibly be the case if the substantial value of their property were taken to pay the assessment laid upon it. The petition must be construed in the light of this situation, and so as to effectuate the manifest intention of the parties. Some other questions are argued in the case, but they do not seem to be material. We express no opinion upon the constitutionality of the special act, for that is unnecessary to the decision of the case. The plaintiffs consent that the assessments. made .against their respective lots shall stand to an amount equal to one-quarter of their taxable valuation, and they are entitled to an injunction restraining the collection of the excess. Such judgment may be entered here in connection with the reversal of the judgment below.

Judgment accordingly.  