
    James E. Wright, Treasurer of Franklin County, and others v. Alfred Thomas.
    1. An assessment made upon land for the construction of a levee, under the act of April 30, 1869 (66 Ohio ,L. 73), is unconstitutional, and its collection may be enjoined at the suit of the owner of the land.
    A 'Where the levee so constructed passed near to but did not touch the land, and the owner had knowledge of the construction of the ditch, and that the land was to be assessed therefor. Held, that his right to enjoin the collection of the assessment was not barred by delaying his action-until the work was completed.
    
      Motion for leave to file a petition in error to reverse the-judgment of the District Court of Franklin county.
    This was an action brought by Thomas to enjoin the treasurer of Franklin county from collecting an assessment made upon Thomas’ land, and charged upon the duplicate, under the act “ authorizing the building and repairing of levees to protect lands from overflow,” passed April 30, 1869 (66 Ohio L. 73). From the record it appears that no-part of the levee for which the assessment was made was upon or adjoining the land of Thomas ; that he had notice of the commencement and progress of the work; that he did not assent or object thereto, .and that he took no measures to enjoin it till after its completion. The Court of Common Pleas gave judgment for Thomas, perpetually enjoining the collection of the assessment, and this judgment was affirmed by the District Court. Leave is now asked to file a petition in error to reverse these judgments.
    
      L. English $ J. Wm. Baldwin, for the motion.
    
      II. G. Noble,' contra.
   By the Court.

We see no error in the judgments. This case is unlike that of Kellogg v. Ely, 15 Ohio St. 64, which counsel rely upon as authority. In that case, the ditch was constructed upon or through the defendant’s land. In the present case, the evidence shows that the-levee did not touch the land of the defendants, and was at the nearest point distant eighty rods. In such case, in the-absence of any proof that the plaintiff actually or impliedly requested the work to be done, or promised to pay for it, we think the court was right in enjoining the collection of the illegal tax. The tax was void, and could not have been enforced. A sale of the land for its payment would convey no title.

Motion overruled.  