
    Kelly et al. v. The City of Cleveland et al.
    1. An ordinance providing that the cost of improving a street “shall be assessed upon all the lots and parcels of land benefited thereby in proportion to the number of feet front in each,” is not in conformity to or authorized by section 576 of the municipal code of 1869.
    2. Non-abutting lots and lands are not subject to assessment for the cost of a street improvement, unless the same be designated and the amount to-be assessed thereon fixed by the board of improvements or city council, in pursuance of section 579 of said code.
    3. For the purpose of apportioning the cost of a street improvement in-proportion to benefits, the council can not require the board of improvements or a committee of freeholders to report an estimated assessment under section 584, until the property to be charged therewith and the amount to be assessed thereon has been determined and fixed in pursuance of section 576, and, if non-abutting property be embraced, of section 579.
    4. Where the provisions of section 576, as to abutting property, and of 579, as to non-abutting property, are disregarded in proceedings to assess-specially the cost of an improvement, the assessment is invalid, and. the case does not come within the curative provisions of section 550.
    Error to the District Court of Cuyahoga county.
    This proceeding is prosecuted to reverse the judgment of the district court for error, in overruling a demurrer to the answer of the defendants in the original action.
    The ease was- in the district' court on appeal from the ■court of common pleas.
    The action was originally brought by the plaintiffs in •error against the defendants in error to enjoin the collection of a special assessment for the improvement of a part of "Wilson avenue, in the city of Cleveland. The questions ■of law involved arise on the following state of facts:
    On the 9th of September, 1878, the city council of the ■city of Cleveland passed the following:
    
      “An ordinance to grade, drain, and improve Wilson avenue, from Julia street to Sawtell avenue.
    
    
      “ Section. 1. Be it ordained by the city council of the ■city of Cleveland (two-thirds of all the members concuring), that Wilson avenue, between Julia street and Sawtell avenue, be graded, drained, and improved, in accordance with the established grade now on file in the office of the •city civil engineer, under the direction of the board"of improvements.
    
      “ Sec. 2. That the cost and expense of said grading, •draining, and improving shall be levied and assessed upon all the lots or parcels of land benefited thereby, in proportion to the number of feet front in each.
    “ Sec. 8. That, the damages claimed by reason of said .grading, draining, and improving shall be adjudged after the completion of the same.”
    ■ A portion of the work having been let and completed, to wit, from Julia to Maurice street, the council directed the board of improvements to make an estimated assessment of the cost and expense thereof upon the property properly ■chargeable therewith. An estimated assessment was made by the board, upon the lots abutting, and also upon lots not abutting, upon the improvement. Objections to this assessment having been filed, an equalizing board was appointed by the council, whose report was confirmed by the council' on the 18th of June, 1875. Among the lots thus assesse i, which did not abut on the improvement, were certain lots: of the plaintiffs.
    On the 17th of September, 1875, the council passed the following ordinance:
    “ An ordinance to levy and assesss a special tax to pay the cost and expense of grading, draining, and improving Wilson avenue, between Julia and Maurice streets:
    
    “ Section 1. Be it ordained by the city council of the city of Cleveland (two-thirds of all the members concurring), that for the purpose of paying the cost and expense of grading, draining, and improving Wilson avenue, between Julia and Maurice streets, there be, and is hereby,, levied and assessed a tax, in accordance with the assessments as made for that purpose, and confirmed by the city council, June 18,1875; that the amount of said tax, payable annually, shall be in accordance with the amount on the tax list, as certified to the city council by the city auditor, and that the same be placed on the county tax duplicate for collection, said tax to be payable, in three installments,, to the county treasurer — the first installment to be payable on or before the 20th day of December, 1875, and an installment annually thereafter until all are paid.”
    Previous to the order of the city council, requiring the board of improvements to make an estimated assessment, neither council nor board of improvements had designated the non-abutting property which, in its opinion,, would be specially benefited and accommodated by the improvement, nor had fixed the amount to be assessed upon the non-abutting property.
    Upon this state of facts, the plaintiffs claim that further proceedings, for the enforcement of the assessment, should have been enjoined by the court below.
    
      
      S. 0. Griswold and S. M. Stone, for plaintiffs in error:
    We claim that this tax, upon the lots of plaintiffs, is wholly illegal and void, on the ground that the necessary jurisdictional action, to authorize the city to levy an assessment for the payment of an improvement on property not bounding and abutting on the street improved, was not taken, or attempted to be taken, by the city.
    It will be seen, from the language of section 579 (66 Ohio L. 247), that in addition to what is required in order to authorize the city to assess lands bounding and abutting on the street improved, certain other action is necessary to authorize an assessment upon other lots and lands within the corporation not bounding or abutting upon the improvement.
    There must be, first, an opinion of the council, or board of improvements, that “ such other lots and lands ” will “be specially accommodated and benefited by the improvement ;” second, that it would be equitable to assess a proportion of the cost of the improvement upon “such other lots and lands;” and, thirdly, the amount for which they are to be assessed shall be fixed.
    The opinion herein required is the judgmeut or determination of the council or board of improvements, and must be expressed officially; that is'to say, the council or hoard of improvements must, in their official capacity, in some manner, w’hieh shall appear of record, declare that the lots and lands, other than the bounding and abutting, will be specially accommodated and benefited by the improvement, and, that it would be equitable to assess a portion of the cost of the improvement upon them, and the amount to be so assessed fixed and determined.
    In order to give effect to this section, it is cleai’ly requisite for the hoard or council to designate what lots and lands, other than the bounding and abutting lands, will be specially benefited and accommodated by the improvement, and which in equity ought to bear a portion of the cost.
    It is equally clear that this should be done before the passage of the ordinance directing the improvement to bo made.
    The ordinance, under which the tax was levied, fails to designate any lots or lands other than the bounding and abutting lots. It does not declare that any other lots or lands will’be specially benefited and accommodated by the proposed improvement, or that it would be equitable to charge them with a proportion of the cost; and it fails to fix the amount with which they should be assessed.
    No other steps were taken by the city to make non-abutting lands chargeable with the cost.
    The ordinance simply declares that all lands benefited by the improvement shall be charged according to their frontage.
    This is sufficient for charging the abutting lands, but has no further effect.
    The only pretense of the city that their duties were performed is, that the board of improvements made the first reported estimate of the assessment.
    By section 584, the city may require this reported estimate therein provided for to be done by the boai’d of improvements or three disinterested freeholders.
    The board of improvements, under this section, simply act as an assessing board, and are required to put the tax on the lands to be charged, nearly as may be, according to benefits.
    But this assessing duty is an entirely different thing from the judicial determination required by section 579, and is not necessarily to be recorded among its proceedings.
    Their action is reported to the council, in the shape of a report, to be confirmed or not by the council.
    The language of section 584 would indicate that before this assessment is made that the assessing board, whether it is composed of the three freeholders or board of improvements, is concluded by the previous action of the council as to the territory to be charged.
    Not only must the council or board of improvements determine that some other than the abutting property is specially benefited or accommodated, but there must be a further determination that it would be equitable to charge such, property with a portion of the cost, and the amount is to be fixed.
    Now, the duty imposed by section 584 is to assess the cost on the property benefited, according to the benefits on each lot.
    This is not power to divide the cost, as between the abutting and non-abutting land.
    That is required to be done under section 579.
    When this is done, then upon each class of territory the assessing board may assess upon the lots embraced in •each the amount fixed, and distribute the amount chargeable on each, either by frontage, value, or benefits.
    
      J. K. Hord, J. P. Hawley, aud S. M. Stone, also for the plaintiffs in error:
    In the pleadings it appears as a fact admitted that the lands of these plaintiffs do" not adjoin or abut on the street ■upon which the improvement was made.
    That the improvement to grade, drain, and improve Wilson avenue did not involve the appropriation or purchase •of land.
    And that the lands, other than those bounding or abutting upon the avenue, which have been assessed for the improvement, were not designated by the council or by the board of improvements previous to the making of the improvement and assessment of the tax.
    This not being an improvement specially provided for, it is regulated by chapter 49 of the municipal code, passed May 7th, and took effect July 1, 1869. 66 Ohio L. 245.
    Section 579 (66 Ohio L. 247) of said chapter provides that if, in the opinion of the council or board of improvements, it would be equitable, a proportion of the cost •of making the improvement may be assessed upon such lands not bounding or abutting upon the street to be improved as will, in the opinion of the council or board, be specially accommodated and benefited thereby. And the board or council shall fix the amount to be so assessed.
    And in section 584 (66 Ohio L. 248) it'is provided that “ in all cases in which it is determined to assess the whole or any part of the costs of any improvement upon the lots or lands bounding or abutting upon the same, or upon other lots or lands benefited thereby,” the council may require the board of improvements, or appoint a board of assessors, to report to the council an estimated assessment of the cost of the improvement on the lots or lands to be charged therewith.
    Under these sections we claim that it is optional with the council and board whether the abutting property is, charged with the tax, or property benefited by the improvement, or both. But, in regard to non-abutting property, they must exercise this option before it has been assessed or the equalizing board ordered to equalize the assessment. If' they do not, the language of said sections clearly imports that only the abutting property shall bear the burden.
    And, in addition to designating what property shall bear the tax, the council and board must also designate the amount which said property shall bear.
    And that the office of the equalizing board is simply to-distribute the amount equitably over the property so designated.
    The record shows that the provisions of these sections were entirely disregarded by the council.
    This assessment being without authority of law, and, therefore, void, it is not such an irregularity or defect as is-cured by section 550 of the municipal code. Welker v. Potter, 18 Ohio St. 85 ; Stephan v. Treasurer, 27 Ohio St. 528.
    The statutory power of taxation and assessment must be clearly given and strictly pursued. 2 Dillon, 706, §§ 605-610, and cases cited ; Moore et al. v. Mich. Cline, 47 Ind. 565.
    
      Grannis $ Griswold, also for plaintiffs in error.
    
      
      Heisley, Well $ Wallace, for defendants in error:
    
      ~We see no reason why an assessment made in accordance with benefit for a street grading case should not be governed by the same principles as an assessment made according to benefits in a street appropriation case. If so,, then the case of Meissner v. Toledo, 31 Ohio St. 387, is decisive of this case.
    There is but one scheme of making assessments according to benefits. It is developed by sections 584-589 of the code, and is applicable to all cases of street improvements. This court has decided that in the development of this-scheme it requires no preliminary designation of the property to be assessed for the improvement. Meissner v. Toledo, ante; Krumberg v. Cincinnati, 29 Ohio St. 69.
    If, however, the court be of opinion that section 579 of the municipal code of 1869 should receive a construction in connection with the provisions for making and levying an assessment to pay the cost and expense of an ordinary street improvement, then we beg to say:
    
      First. Iu our judgment section 579 has no reference to-an assessment made in accordance Avith benefits, by the interposition of assessing and equalizing boards. It refers alone to an assessment made by the foot front, or according-to valuation upon the assessable value of the land, Avhich the council may make directly (section 576). Section 579' is simply a continuation of 576, and a part thereof, although disconnected therefrom by intervening sections^ Making an assessment “ as herein provided,” means as provided in that part of the code which virtually forms a part, of section 579, to wit, section 576. It has no relation to-the provisions designated-by the code for making an'assessment hy the scheme of benefits (sections 584-589), either as an essential or necessary part thereof, or as standing in juxtaposition thereto.
    
      Second. If it bo thought by the court that section 579’ has some connection with the provisions of the code for-making an assessment according to benefits for an ordinary-street improvement, then we beg to reply that section 5791 has reference to something to be done after the work is finished, when the council or its boards come to make the .assessment to pay for the improvement. An analysis of chapter 49 of the code shows this.. Sections 563, 564, and 565, under the first and second subdivisions of the chapter, provide for the initiation of the improvement, the passage .and publication of the declaratory resolution to improve, the filing of claims for damages, and the determination by the council whether or not to proceed with the improvement. And lastly, under subdivision three, the chapter provides for making and levying the assessment to pay the ■cost and expense of the improvement. If by the foot front or valuation' upon the abutting property alone, section 576 is invoked; but, if upon the non-abutting as well .as upon the abutting property, then section 579, in connection with section 576, is applicable. If, however, it is determined to make the assessment by the system of benefits, then sections 584-589 are used. When the council ■confirms the assessment, if made by benefits, it designates the lots to be assessed, both abutting and non-abutting, and fixes the amount to be placed on each lot. Subsequently it passes an ordinance levying the assessment as thus confirmed. This is a literal compliance with section 579 of the code.
    
      Third. Section 579 must be construed with reference to .sections 584-589, inclusive, when an assessment is made according to benefits; and then it should receive the same construction that section 539 (the proviso therein) did by this court in the case of Meissner v. Toledo, 31 Ohio St. 387. Section 584 says the assessment must be placed “on the lots or lands to be charged therewith.” It was elaborately .argued in the street appropriation cases that to place the .assessment “ on the lots and lands to be charged therewith,” it was necessary for the council or board of improvements to designate the abutting, contiguous, and adjacent property to be assessed, before the apportionment was made. Section 539. The court, however, held otherwise. If, now, in a street appropriation case, the lots or lands to be charged for the improvement need not he designated in advance of the apportionment, neither need they he, by parity of reasoning, in a street improvement case.
    
      Fourth. It is not required by the code, at the inception of an improvement, to set forth or indicate how the same shall be paid for. Municipal Code, §§ 563-565.
    If the ordinance providing for the street improvement were silent as to how the cost and expense thereof should be paid, the council could then elect to provide for it by special assessment or general taxation. Sections 576, 584, 580, 581, 590.
    We think, therefore, we can safely say the provisions of the code require no preliminary enunciation as to the manner of providing for the cost of a street improvement, and, in the absence of such enunciation, the council may elect to provide for it by special assessment or general taxation; and if there is any presumption to be gathered from the entire code, when applied to the city of Cleveland, it is that it should be paid in the former rather than in the latter manner. Upington v. Oviatt, 24 Ohio St. 232; Municipal Code, § 561.
    In Hubbard v. Norton, 28 Ohio St. 116, it was held that “the city council of a city of the first class, having a board of improvements, may order the improvement of a street,, ■without a report of such board ‘ that an assessment will be required, and the proper amount to be assessed.’ Such report is not a condition precedent to the making of such order.”
    Section 579 was then substantially in force. Abutting and non-abutting property could then be assessed for an ordinary street improvement, if, in the opinion of the board of improvements, it would be specially accommodated or benefited thereby. S. & S. 836.
    In Allen v. Charlestown, 111 Mass. 123, the question arose as to the validity of an assessment levied to pay the cost of a drain or sewer. It appears that no notice was given as to what property would be charged to pay for the sewer, before the making thereof, but, subsequently to its completion, benefited lands were charged therefor. The assessment was held, to be valid. We also cite: Meissner v. Toledo, 31 Ohio St. 387; The State v. Newark, 2 Vroom (N. J.), 360; Hungerford v. Hartford, 39 Conn. 279; Clapp v. Hartford, 35 Conn. 66; Woodhonse v. Burlington, 47 Vt. 300; Whitney v. Boston, 106 Mass. 89; Commonwealth v. Woods, 44 Penn. St. 113 ; Stuart v. Palmer, 17 N. Y. Sup. Ct. 23 ; Soady v. Wilson, 3 Adol. & Ellis, 248; Cooley on Taxation, 447-450, inclusive.
   McIlvaine, J.

Power to make a special assessment to pay the whole or any part of the costs of the improvements specified in the ordinance of September 9, 1873, was •conferred upon the city by sections 576 and 579 of the municipal code of 1869. Section 576 reads as follows: “For the payment of the costs of making said improvements the council may, by ordinance, levy and assess a tax on all the lots and lands bounding or abutting on the proposed improvement, such tax to be either in proportion to the foot front of the lot and lands so-bounding or abutting, or according to the value of such lot or lands, as assessed for taxation under the general law of the state, as may be equitable, and as the council may in each case determine.” The ordinance in question can not be supported under this section, for the reason that it does not limit the assessment to abutting lots and lands; nor does it necessarily embrace such lots or lands. This would depend on the fact whether or not the abutting lots and lands were benefited by the improvement. Sectiou 579 provides: “If, iu the opinion ■of the council or board of improvements, the same would be equitable, a proportion of tbe cost of making the improvement may be assessed, as herein provided, upon such other lots or lands within the corporation, not bounding or abutting upon the improvement, as will, in the opinion of the council or board, be specially accommodated and benefited thereby; and said board or council shall fix the amount to be so assessed.” The ordinance of September 9 was not in execution of the power conferred by this section, for the reason that it does not designate the non-abutting lots or lands which, in the opinion of the council, would be specially accommodated and benefited by the improvement, nor does it fix the proportion or amount of •costs which should be assessed upon the non-abutting property.

But the council, without exercising the power conferred by either of these sections, assumed to act under the provisions of section 584, and required the board of improvements to make and report an estimated assessment of the •costs of the improvement upon the lots and lands chargeable therewith. This section reads as-follows : “ In all cases in which it is determined to assess the whole or any part of the cost of any improvement upon lots or lands bounding or abutting upon the same, or upon other lots or lands benefited thereby, the council may require the board of improvements, or may appoint three disinterested freeholders of the corporation or vicinity, to report to the council an estimated' assessment of such cost on- the lots .and lauds to be charged therewith, in proportion, as nearly .as may be, to the benefits which may result from the improvement to the several lots or parcels of land so assessed,” •etc. This action of the council, as well as all the subsequent proceedings, was premature and unauthorized, as, in our opinion, resort may not be had to the powers conferred by section 584, until those conferred in section 576, or in 576 and 579, have been exercised. In all cases of street improvements, when it is determined, in pursuance of the powers conferred by sections 576 and 579, to assess, etc., then, and not till then, may the council, under section 584, for the purpose of relieving against injustice resulting from the arbitrary apportionment, according to the front foot or the valuation, require an estimated assessment, in proportion to the benefits, on the lots and lands which, in pursuance of such previous determination, are to be charged therewith.

It is contended by defendants that, under the rule laid down in Meissner v. Toledo, 31 Ohio St. 387, it was not essential that the lots and lands to be assessed should have been designated before an estimated assessment could be required under section 584. It is true that it was held in that case that the confirmation by the council of the estimated assessment was a sufficient determination by the council of the lots and lands to be charged with the assessment. But it must be kept in mind that the assessment, in that case, was to pay for lands condemned for street purposes, as authorized by section 539, and that sections 576 and 579 were not embraced in the scheme provided for-levying special assessments in such case, while the rule in this case depends on the construction of sections 576 and 579,, which are fundamental in the scheme for levying special assessments to pay for the improvement of streets already in existence. The difference in the schemes accounts for the difference in the rules. It is not a question as to what the statute should be in either case, but what is it in each.

It is also contended, in this case, that, inasmuch as the estimated assessment was made by the board of improvements, section 579 has been substantially, if not literally, complied with. In our judgment, the board of improvements, when required, under section 584, to make an estimated assessment, can exercise no function different in any respect from the- power conferred upon a committee of disinterested freeholders in making such assessment; and clearly the committee could not exercise the powers conferred in section 579.

And further, it may be said, as it seems to us, that Empower conferred on the board of improvements by section 579 must be exercised by the board, if it desires to exercise it at all, at the same time that the improvement is recommended.

In cities having a board of improvements, of which Cleveland is oue, it is provided by section 501 that no improvement or repairs shall be ordered or directed by the council for any street, etc., except on the recommendation of the board of improvements; and section 503 provides that all petitions for improvements from owners of property shall be presented to the board, who shall report from time to time to the council, when any improvement is necessary or proper; and when any assessment is required, they shall report the same and an estimate of the amount to be assessed, and the council .shall take such action thereon as. may be deemed proper.

Erom this view, it follows that the defendants should have been restrained from certifying the assessment so-made to the auditor to be placed upon the duplicate for collection as other taxes ; and it only remains to determine-whether the plaintiffs were entitled to an injunction restraining the collection by action.

Section 550 provides that in an action for the recovery of an assessment, no irregularity or defect, whether in the proceedings of the board of improvements or of the council, whereby the assessment has not been properly made,, shall prevent a recovery, when it is shown that expense has-been incurred, which is a proper charge against the defendant, or against the lot or parcel of land in question ; and it seems plain that an unrestricted order enjoining the collection of an assessment should not be granted in a case-w'here, if an action had been brought for the collection of an assessment against the persons assessed, they could not resist a recovery on the ground of irregularities or defects in the proceedings.

We are of opinion, however, that the informalities and irregularities above mentioned are so fundamental and radical that the case does not fall within the curative provisions of section 550. In street improvement proceedings, where there-is no ordinance in substantial conformity to the provisions of section 576, and where non-abutting property has not been designated by the board or council, or the amouut to be assessed thereon has not been fixed, as required by section 579, it can not be said that any expense has been incurred that is a proper charge against the person or property sought to be assessed.

Whether the facts bring the case within the provisions-of section 551, which authorize a re-assessment, is a question we have not considered, and do not determine.

Judgment reversed, demurrer to answer sustained, and •cause remanded to the district court for such further proceedings as may be authorized be law.  