
    Albrecht v. The City of Cincinnati et al.
    
      Municipal corporations — Special assessments — Section 381%, General Oode — Street improvement proceedings — Sanitary sewer authorised, when — Resolution and ordinance — Limited to one subject — Section 1¡%%6, General Oode.
    
    1. A municipal legislative body is clothed with authority under Section 3812, General Code, to provide for the construction of a sanitary sewer as a part of a street improvement, and to levy assessments against abutting property to pay the proportion of the cost thereof. Unless, however, the proceedings to improve provide for the construction of a sanitary sewer, as a part of the improvement, no jurisdictional authority attaches to warrant the construction of the sewer, and the collection of assessments therefor may be enjoined. (Roebling v. City of Cincinnati, 102 Ohio St., 460, approved and followed.)
    2. When a city council in the resolution and ordinances providing for the improvement of a street includes as a part of the improvement the construction of a sanitary sewer, all under Section 3812, General Code, there is but one “subject,” viz: that of a “street improvement,” and the provision of Section 4226, General Code, is complied with if that subject is clearly expressed in the title.
    (No. 16911
    Decided February 21, 1922.)
    Error to the Court of Appeals of Hamilton county.
    This case was one for injunction, enjoining the collection of street assessments occasioned by the improvement of Beekman street in tbe city of Cincinnati, filed in tbe court of insolvency, and resulting in a judgment in favor of tbe plaintiff, John A. Albrecbt.
    The case of Lillie v. Cincinnati was another case of a similar nature, praying for tbe same relief, filed in tbe court of common pleas of Hamilton county, having to do with tbe same street improvement, and resulting in a judgment for the city. Both of these oases were appealed to the court of appeals of Hamilton county, where, by proper proceedings, they were consolidated, and proceeded under the above caption.
    The court of appeals on the pleadings, agreed statement of facts and evidence determined the issues against the plaintiff and in favor of the city, vacated the injunctions', and dismissed the proceedings.
    The petition in error by one of the parties and cross-petition in error by the other are filed in this court for review.
    The agreed statement of facts is as follows:
    “It is agreed by and between counsel for plaintiff and defendants that cause No. 1534, Gottlieb Lillie v. The City of Cincinnati et al., be consolidated with this cause, and tried as one. It is further agreed that the parties named in the respective petitions are the owners of the premises in said petition described; that the City of Cincinnati made the improvement described in the petitions and levied the assessment set forth therein; that the resolution of necessity attached hereto, marked Exhibit ‘A’, was duly enacted by the Council of the City of Cincinnati ; that an ordinance determining to proceed with the improvement in question, a copy of which is attached hereto marked Exhibit ‘B’, was also duly enacted by the Council of the City of Cincinnati; that by ordinance passed by the Council of the City of Cincinnati, the property was assessed in the amounts set forth in the petitions; that Exhibit ‘O’, attached hereto, and made part hereof, is a correct statement of the total costs of said improvement and of the materials and prices paid for the same, used on said improvement; that sixty per cent, of the cost of said improvement, less the cost of intersection, was assessed by said ordinance against the properties bounding and abutting on said improvement; that the supplementary agreement of date November 20, 1913, referred to in the total cost of the improvement, was validly entered into; that the drain pipes referred to in the total costs are used for the purpose of draining and carrying off surface water on Beekman Street, and for receiving and carrying off storm water and sanitary sewage from the houses and lands abutting'thereon, and that said drains are connected up with the general sewage and drainage system of the City of Cincinnati, and house connections are made to said drains; that the Y branches referred to in said total costs are for the purpose of connecting the abutting premises with said drains for said storm water and sanitary sewage. That the total number of feet of property assessed is 7,920.91.”
    In addition to the agreed statement of facts the bill of exceptions contains the testimony of one witness called by the defendant and one witness, called by the plaintiff, each witness qualifying as an experienced civil engineer.
    The city’s witness testified in substance that the conduit constructed for the purpose of carrying both the surface water and the sanitary sewage, as shown by the agreed statement of facts, was placed at different depths, running from a depth of 8 feet to a depth of 26 feet, and that the fact that it carried sanitary sewage in addition to the surface drainage would make no appreciable difference in the size of the pipe or opening necessary, the substance of the testimony being that there would be no substantial difference in cost because the system was burdened with the additional carrying of the sanitary sewage.
    The substance of the testimony of the witness on the opposing side was that if only surface water drainage had been provided for, the necessary depth of the conduit would have been materially less, and that the size as well would have been materially less, resulting in a materially smaller cost of construction.
    
      Messrs. Pogue, Hoffheimer & Pogue and Mr. Albert T. Brown, for plaintiff in error and for Gottlieb Lillie, defendant in error.
    
      Mr. Saul Zielonka, city solicitor; Mr. Frank K. Bowman and Mr. Clifford F. Cor des, assistant city solicitors, for defendants in error.
   Hough, J.

By the record in this case, we have before us the legislation passed by the city council of Cincinnati for the improvement of Beekman street, as well as the fact that in the construction of the improvement a subterranean conduit was built, intended to be utilized, and later so utilized, for the purpose of carrying the surface and storm-water drainage and the sanitary sewage.

Counsel for plaintiff in error urge want of authority on the part of the city to construct the sanitary sewer, for the reasons: 1. That the legislative action of the council did not provide that authority. 2. That the authority could not be provided except by action of council in a separate set of legislative enactments.

The resolution of necessity and the ordinance to proceed thereunder provide in part as follows:

‘ ‘ To improve Beekman Street * * * by grading, setting granite curbs and granite gutters, paving the roadway with tar-binder macadam, and constructing the necessary drains, basins and retaining walls, in accordauce with, ’ ’ etc.

This action was taken no doubt under the usual statutory authority for street improvements, and the assessments against the abutting property made under the same authority.

Section 3812, General Code, provides in part as follows:

“Council of any municipal corporation may assess upon abutting, adjacent and contiguous or other specially benefited lots or lands in the corporation any part of the entire cost and expense connected with the improvement of any street * * * by grading, draining, curbing, paving,. repaving, repairing, constructing sidewalks * * * retaining walls, sewers, drains, water-courses, water-mains or laying of water pipe.”

From the reading of the above section it is clear that city council may provide for the assessment of property benefited by the construction of sewers, and from an examination of the proceedings had in this case it is just as clear that it did not provide in its proceedings for the construction of any sewer in connection with the improvement. Although the legislature had given it that authority, the council in this improvement did not take advantage of the authority given and did not provide for the construction of a sewer, but only for the construction of the necessary drains.

Before private property may be assessed for an improvement the city must have acquired full jurisdiction by proper proceedings of its legislative body. This question has recently been before this court in the case of Roebling v. City of Cincinnati, 102 Ohio St., 160, where it is said in proposition 1 of the syllabus :

‘ ‘ The term ‘ drains-, ’ as used in Section 3812, General Code, is not synonymous or interchangeable with the term ‘sewers,’ as used in the same section. Each has a common ordinarily accepted meaning of its own, and legislation by the council of a municipal corporation for the improvement of a street by paving, and providing for the construction of the necessary drains as an incident thereto, is not broad or comprehensive enough to clothe the city with jurisdiction to construct a sanitary sewer thereunder.”

While no objection can be made to the construction of one subterranean conduit that will carry both the surface drainage and the sanitary sewage, and in fact it may be said that that appears to be a splendid arrangement and should be mechanically correct from an engineering standpoint, as well as economical, yet at the same time the controlling question is whether or not the city had the authority so to do. And from the record before us we must hold that while the statute has granted the authority to the municipality to construct the subterranean improvement that was constructed, it was done under proceedings of council that failed to take advantage of given authority, by broadening the scope of its legislative action to include “sewers.” The legislature in setting out the elements for which assessments may be levied, in street improvements, under Section 3812, General Code, mentions both drain and sewer. This inclines ns to the belief that the terms were not intended to mean one and the same thing, as was discussed and held in the Roebling case, supra.

The other question urged is that the city would not be authorized to build a sanitary sewer unless separate proceedings for that purpose were passed to accomplish it. It is claimed that that must be so in order to conform to the provisions of Section 4226, General Code, which reads:

“No ordinance, resolution or by-law shall contain more than one subject, which shall be clearly expressed in its title.”

As we have stated above, council under Section 3812, General Code, is granted the power to build “sewers.” This section is the first section in Chapter 5, upon the subject of assessments. Under the subhead of “sewers,” in the same chapter, Section 3871 provides in part as follows:

“In addition to the power herein conferred to construct sewers and levy assessments therefor, council * * * may provide a system of sewerage * *

And, again, in Section 3882, we find:

“Council may provide for the construction of main drains and branch drains connecting therewith without previously adopting any plan of sewerage * *

Thus it appears that in the same chapter of the General Code three different methods of procedure for the construction of sewers are in force.

Inasmuch as the sewer was built under the proceedings for the improvement of this street, we have no hesitancy in holding that of the three methods provided the one attempted was under Section 3812, and that the “subject” of the legislation under the proceedings before us is the “improvement” of the street. Should the. city council' attempt to pave a street under Section 3812, and then attempt to construct a sanitary sewer under either Section 3871 or Section 3882, we could see some merit in the contention of counsel that there would be more than one subject, which would necessitate separate proceedings.

How the court of appeals resolved the conflicting testimony of the two engineers we are not able to ascertain. The journal entry fails to throw any light upon it, and it is uncertain whether the question of fact was resolved against the plaintiff and in favor of the city or whether the holding turned upon a question of law. The combined sewer and drain might very properly be less expensive than a separate sewer and drain, but that a drain may be constructed in such manner as to accommodate the additional burden resultant to a sewer system, without materially affecting the cost of construction, seems unlikely, and such assumption is untenable. We therefore assume that the decision of the court of appeals turned on the question of law.

It is therefore the judgment of this court that the judgment of the court of appeals be reversed and the case remanded; that the temporary injunction heretofore allowed and later vacated be reinstated as against the collection of the assessments against plaintiff’s property; that a mandate go to the court of appeals to find and determine the amount of the additional cost, if any, of this subterranean conduit, occasioned by reason of its being constructed to accommodate the sanitary sewage in connection with the improvement; that after such determination the collection of the pro rata amount against this property, or any amount assessed in excess of the reasonable cost of drains to adequately carry away the surface water in the street improvement area, be permanently enjoined; and that the injunction as to all other assessments be vacated.

Judgment reversed.

Marshall, C. J., Johnson, Robinson, Jones and Matthias, JJ., concur.  