
    ASSESSMENTS.
    [Franklin (2nd) Circuit Court,
    January 24, 1911.]
    Rockel, Dustin and Allread, JJ.
    
      Mary S. Page v. Columbus (City) et al.
    1. Limitation of Reassessment to One-half Cost of Repaving Applies to Original Improvements Made Before and After Enactment of Statutes.
    The limitation of Gen. Code 3822, providing that reassessments for repaving improved streets shall not exceed one-half of the cost, does not violate the constitutional inhibition as to retroactive or retrospective legislation; and it appliesjto improvements whether made before or after the enactment of the law restricting the amount of assessments in such cases.
    2. Assessment of Cost of Improvement against Abutting Property Determining Factor as to Application of Reassessment Limitation.
    No distinction is made by Gen. Code 3822, limiting amount of reassessments for repaving or repairing improved streets, as to the material used or cost of the original improvement; but the restriction applies generally to all road improvements from which an unimproved street is transformed into an improved one and for which the cost and expense is assessed specially against abutting property.
    [Syllabus approved by the court.]
    Error to common pleas court.
    W. 8. Page, for plaintiff.
    
      E. L. Weinland, city solicitor, J. L. Davies and C. A. Leach, assistant city solicitors, for defendants.
    
      
       Affirmed, no op., Columbus v. Page, 86 O. S. 333.
    
   ROCKEL, J.

Plaintiff in her petition below alleged that she was the owner of certain properties located in the city of Columbus; that one of her said properties is located on Sandusky street in said city, and that on or about December 6, 1890, in front of .the premises said street was graded, a boulder paving put in the gutters, five inch Berea curb was put in said street. The roadway was graveled and an assessment made and paid against said property, at the rate of $1.07 per foot; and that she avers that said work done upon said street was an improvement upon said street, said street being a public street in the city of Columbus and that said improvement was necessary and beneficial and substantial at the time it was made; that after-wards on November 10, 1900, the said Sandusky street in front of the premises hereinbefore described was surfaced with crushed gravel, the roadway was repaired and an assessment was made and paid upon the property, and the same was a substantial improvement on said street.

And avers further that during the year of' 1908 the city of Columbus duly authorized the improvement of Sandusky street in front of the premises hereinbefore described and levied an assessment upon the property, the same was a lien thereon; that the grade of said Sandusky street was not changed from its former grade by reason of the last improvement; and avers further that said street had been formerly improved by said city and she should not be assessed for more than one-half of the cost and expense of repaving said street.

Further allegations are made that thé county treasurer was demanding the same and that there would be a penalty added thereon and other matters which go to the facts that determine the right of injunction, etc.

There are other tracts or lots in reference to which substantially the same averments are made.

In the court below the city filed a demurrer which .was sustained by the court, and plaintiff, not desiring to plead further, prosecutes error to this court from the decision of the court below in sustaining the demurrer.

The question to be considered in this case is purely one of a" statutory construction. The third paragraph of Sec. 53 of the Municipal Code, which was R. S. 1536-213, and which now appears as Gen. Code 3822, as it was worded in said Sec. 53, reads as follows:

“Provided that whenever special assessments have been levied and paid for the improvement of any street or other public place, the property so assessed shall not again be assessed for more than one-half the cost and expense of repaving or repairing such street or other public place, unless the grade of the same is changed.”

In the General Code the wording has been varied somewhat, but not materially.

The contention of the plaintiff is that by the plain wording of this statutory provision, she is not liable for more than one-half of the assessment, and it will be.conceded that the plain words in this statute would seem to support her contention.

The defendant, however, and the court below agreed with it, contends that plaintiff in her cause of action does not bring herself within this statutory provision.

The defendant bases its ground of contention on two reasons:

The first is that said statutory provision does not apply to improvements made before the passage of said act.

The plaintiff contends that the Supreme Court in the s*ase of Gray v. Toledo, 80 Ohio St. 445 [89 N. E. Rep. 12], has held to the contrary and supports her claim. The syllabus of this case is as follows:

"Section 53 of the municipal code of 1902 (Section 1553-213, Revised Statutes, prior to the amendment of April 21, 1904, 97 O. L. 126) which provided that assessments upon a lot for any and all purposes, within a period of five years, were limited to thirty-three per centum of the tax value thereof, is so construed that assessments levied prior to that enactment, and within the five year period, are to be considered in applying the limitation to assessments subsequently levied.”

This decision and the syllabus in reference thereto was given in construction not to the clause of said Sec. 53, under consideration in this case, but to the first clause thereof. The clause under consideration by the Supreme Court read as follows:

‘ ‘ In all cases of assessment, the council shall limit the same to the special benefits conferred upon the property assessed, and in no case shall there be levied upon any lot or parcel of land within the corporation, any assessment or assessments for any and all purposes, within a period of five years, exceeding thirty-three per cent of the tax value thereof.”

It will be observed that the language of the clause that the Supreme Court had under consideration did not indicate that it should be applied to past assessments, but rather that it applied to the present and future, and from the language used the court would have been justified in so holding. In the clause applicable to the case at bar, the language used clearly indicates that it is to be applied to a past .transaction. And for that reason, it appears to us that the present ease is a stronger one for the plaintiff than the one which was decided by the Supreme Court.

The statute applicable to the case at bar specifically says “that when any special assessments have been levied and paid. ’ ’ This certainly refers to assessments that have been levied and paid in the past, and there is no reason to be gathered from the language of the statute why it should be. limited in its application to assessments that have been levied and paid after the passage of the law, neither is there any reason why' the legislature should not have made it apply to. original assessments that have been made in the past, as well as in the future.

Certainly, as a matter of justice and right, there is no reason why a distinction should be drawn.

Suppose that ten days prior to the passage of this act, one person’s property had been levied upon and an assessment made and paid, and in ten days after the passage of the act another person would have an assessment levied and paid on his property, is there any moral or equitable reason why, if these several persons should have improvements made on their property thereafter, the first should be compelled to pay the entire assessment and the latter only one-half?

Defendants seek to draw a distinction between this case and Gray v. Toledo, supra, that the Court in that case gave the construction it did largely because the new statute was merely a continuance of the old one and made the same provisions that had been in force in the old statute for years, and that, therefore, it applied in its limitations, even though the assessment in question was made after the present act went into effect. That was perhaps one reason. But we think that when the court uses the language hereinafter quoted, that it indicates that there were other considerations in the minds of the court, and which are applicable to the case at bar. The language I refer to is as follows:

“The exaction from a lot owner of an assessment equal to one-third of the value of the property, for an improvement which he may not wish and cannot afford, even though an equivalent special benefit results, is a heavy burden, and the general assembly wisely has provided that it shall not be exceeded and that he shall have five years in which to lighten the load before additional burdens may be imposed. No reason is suggested why an exception should be made of these unfortunates who already were bearing the full burden when See. 53 was enacted, and if the statute is to be so interpreted then a similar misfortune must follow every repeal and amendment of the section. ’ ’

In the case at bar, there is nothing that we can see that in making it apply to the plaintiff’s case would make the law retroactive or retrospective and this is well answered in Gray v. Toledo, supra.

- “The power to make an assessment for the improvement of this street is given by the same act that limited the amount of the assessment, and the extent of the power is measured by the limitation; and so long as assessments made prior to the passage of that statute are not affected, but only considered .in applying the limitation to assessments subsequently made, no vested right is taken away or impaired, nor a new obligation created, nor a new duty imposed, nor a new disability attached in respect to transactions or considerations already passed.”

The language of the statute applicable to the case at bar is positive in reference to what property should be included within its provisions and these provisions are, first, that there must have been a special assessment levied thereon; second, that the assessment has been paid; third, that it was for the improvement of a street, then, unless the grade is changed, if there be thereafter another assessment, only one-half of the same can be assessed against the .property.

The constitution, Art. 13, Sec. 6, especially gives to the general assembly power to pass laws restricting the power of assessment. The passage of the act under consideration was an exercise of this power and the legislature was the sole judge as to its application, so. long as it did not contravene any other constitutional provision.

The theory of assessments rests purely upon the fact that a benefit is conferred upon the property. Now it would seem that it is certainly within the power of the legislature to determine that if property has once been assessed, and there be future assessments made, that the property shall not bear more than a certain proportion of such future assessments, and that the remainder must be borne in some other manner.

So we are unable to see how either from the words of the statute itself, or theory of public policy, or constitutional provisions,- it should not be applicable to the plaintiff’s case and bring her property within its limitation.

The second question that is raised is that the graveling of a roadway or surfacing it with crushed gravel is not within the statute. In other words, that what is meant to be included in the statute is that when a stréet has been once paved with brick or something of that character, and is thereafter repaved or repaired, that then it comes within the meaning of the statute. It is possible that this was chiefly what the legislature had in mind, but the statute must be construed according to the meaning of the words used in the statute.

It may be true that a person might receive the benefits of this limitation, who had not been taxed very heavy for some prior improvement, but as the statute draws no lines of distinction between whether the original improvement shall be a gravel, cobble, plank, brick, or stone roadway, or one of some other description, we must hold that it applies to all improvements of the character to which it might apply.

The fact that the statute limits the limitation to a case where the grade is not changed would, to our mind, seem to indicate that it was to have a general application to all roadway improvements. It is a well-known fact that streets are frequently improved by cutting and grading and re-surfacing with gravel or some other substance out of which a reasonably good roadway could be made, and no street or roadway in a city is recognized as an improved street until such is done. The transforming of an unimproved street to what is known as an improved street is an improvement which the statutes have recognized to be a suitable one, for which the cost might be levied and assessed against the adjoining lot owners.

In a well considered ease by Judge Kunkle of the Clark common pleas, Baldwin v. Springfield, 20 Dec. 265 (10 N. S. 65), it is held:

“ ‘Macadamizing’ a street, formerly improved by graveling pursuant to municipal direction, constitutes a ‘repaving’ within the meaning of Sec. 53, Mun. Code of 1902 (Gen. Code 3822) for which not more than one-half the cost may be assessed against the abutter.”

In discussing the question as to whether the words repaving and repairing could be applied to a case where the street in its improvement had only been graveled, or macadamized, and not paved with brick, etc., he cites and examines a number of authorities, and as it is quite pertinent to the decision of the case at bar, we will quote at some length from the’ opinion:

“Does the macadamizing of the highway in question, constitute a repaving thereof, where the first improvement consisted merely of graveling the street? We have had considerable difficulty in arriving at a determination of this question.
“There are a number of decisions to the effect that macadamizing is considered paving. Leake v. Philadelphia, 171 Pa. St. 125 [32 Atl. Rep. 1110]; Williamsport v. Beck, 128 Pa. St. 147 [18 Atl. Rep. 329]; Brady, In re, 85 N. Y. 268; 36 Am. Dig. 1267; Philadelphia v. Ehret, 153 Pa. St. 1 [25 Atl. Rep. 888]; Harrisburg v. Segelbaum, 151 Pa. St. 172, 185 [24 Atl. Rep. 1070; 20 L. R. A. 834]; Adams v. Fisher, 75 Tex. 657, 661 [6 S. W. Rep. 772].
“Does an original improvement of a street by graveling constitute the paving of a street, so as to render a subsequent improvement a repaving?
“To pave includes the usual means of covering the street with stone or brick, so as to make a convenient surface for travel. Warren v. Henly, 31 Iowa 31.
“Many statutes provide for levying assessments for paving a street. The question presented under such statutes is as to the meaning of the term ‘paving,’ and the forms of improvement which may be included thereunder.
“Paving consists in producing, by any means, a hard, firm, smootli surface for travel. Paving consists in producing a compáct, even, hard surface, or covering the street with stone or brick, so as to make a convenient surface for travel. Page & Jones, Taxation 437.
“No particular material is necessary to constitute a pavement. It may be made of anything which will produce a hard, firm, smooth surface for travel. Philadelphia v. Eddleman, 169 Pa. St. 452 [32 Atl. Rep. 639].
“To pave is to cover with stone or brick, or other suitable material, so as to make a level or convenient surface for horses, carriages, or foot-passengers. Phillips, In re, 60 N. Y. 16, 22.
“A pavement is not limited to uniformly arranged masses of blocks of wood, brick or stone, but it may be as well formed of pebbles or gravel or other hard substance which will make a compact, even, hard way or floor. Burnham v. Chicago, 24 Ill. 496, 499, 500; Dillon, Mun. Corp. See. 796, and authorities cited.
“Any material by which a hard, firm or smooth surface for travel is secured, constitutes a paving, and from the above definitions of paving and repaving, we think the macadamizing in question constituted a repaving, and that the limitation of Sec. 3820 Gen. Code (B. 1536-213), as to repaving, applies to the improvement in question.
“While brick or stone are the materials employed in most cases of paving and were the materials used in certain of the cases above cited, yet it is apparent from the reasoning of the court, even in those eases, that the controlling element was the fact that a hard, firm, smooth surface for travel was thereby secured, and a hard, firm and smooth surface for travel may be secured from the use of gravel, as well as froih other kinds of material.
“The purpose of the legislature seems to be to permit the city to assess against abutting property owners the principal cost of originally improving a street, of originally transforming it from.an ordinary roadway into a street, but after such original construction, the policy of the legislature in our state, and the same rule seems to prevail in most states, is to limit the amount which may be assessed after a street has been originally improved at the expense of the abutting property.
“We have nothing to do with the wisdom of such legislation. We are merely required to determine what the legislature has enacted upon this subject. If we have correctly interpreted the intention of the legislature and the limitation so prescribed is unwise, the remedy is with the legislature. ’ ’

At the May term of this court the decision of Judge Kunkle was affirmed by this court. This case, we think, is decisive of the question of the ease at bar, as to whether the statute in its limitation applied to a street that had been improved by paving with brick or some similar substance only, or whether it could also be applied to a street improvement where gravel was used to make the surface, and we think that the court in the Clark county ease has clearly shown that the statute is not limited to a street that has been paved with brick, etc., but that those that have been improved by making a graveled surface as set forth in plaintiff’s petition come within its provisions.

We are, therefore, of the opinion that the court below erred in sustaining the demurrer to plaintiff’s petition, and said cause is, therefore, reversed and remanded to the court of common pleas for further proceedings.

Dustin and Allread, JJ., concur.  