
    MUNICIPAL CORPORATIONS — SIDEWALKS.
    [Wood (6th) Circuit Court,
    November 25, 1905.]
    Parker, Haynes and Wildman, JJ.
    Arsula Westenhaver v. Hoytsville (Vil.).
    1. Sidewalks in Municipality — How Construction Controlled.
    Sidewalks in a municipality may be constructed under either the statute providing for the improvement of streets, etc. (Rev. Stat. 1536-210; Lan. 3600), or under the special section for the purpose (Rev. Stat. 1536-232; Lan. 3621). Municipalities are thus provided with an alternative procedure in the construction of sidewalks.
    2. Ordinance already Passed may Govern Under Rev. Stat. 1536-232 (Lan. 3621), for the Construction of Sidewalks.
    A general ordinance for the construction of sidewalks having been passed by the council of a municipality before the enactment of the new munici. pal code, including Rev. Stat. 1536-232 (Lan. 3621), no other or special ordinance is required.
    3. Sidewalk Construction not Controlled by Benefits nor Proportion of Cost to Value of Property.
    Under Rev. Stat. 1536-232 (Lan. 3621), the cost of the construction of a sidewalk may be assessed against the abutting property, regardless of benefits. ♦
    4. Evidence — Party Seeking to Enjoin Municipal' Assessment Has Burden of Proof.
    Where a property owner in a municipality seeks to enjoin the enforcement of an assessment against his property for improvements on the ground of irregularity in the procedure for the construction of the improvement and the imposition of the costs, the burden is on the plaintiff to show such irregularity and not on the municipality to show the regularity of such procedure.
    [Syllabus approved by the court.]
    Appeal from Wood common pleas court.
    Taylor & Jones, for plaintiff.
    Baldwin & Harrington, for defendant.
   WILDMAN, J.

(Orally.)

The claims of the plaintiff in this ease, which is an appeal from the court of common pleas of Wood county, are stated in the amended petition. Many of the facts in the case are not disputed. The village of Hoytsville is a municipal corporation in this county and it appears by the pleadings, evidence and concessions, that a sidewalk has been constructed along the east side of the property owned, at the institution of this suit, by the plaintiff, and that she has been assessed for its cost. Believing the assessment to be invalid she declined to pay it, whereupon a penalty was imposed and upon its being certified to the auditor she instituted this suit to enjoin the collection of the assessment and penalty amounting to $204.12. The case involves a question of so much importance, as affecting improvements of this character in other municipalities over the state, that -it would be interesting and perhaps profitable to consider in some detail the authorities' which have been cited in argument. The case may, however, be very briefly disposed of by an an announcement of the construction which we have placed upon the státute under which the improvement was made. In the year 1902, in an extraordinary session of the legislature, a new municipal code was adopted and among other matters therein treated provision was made for improvements of this kind. In 96 O. L. 39, we have See. 50 (Rev. Stat. 1536-210; Lan. 3600) and other sections, providing for the improvement of streets, alleys and public roads in various ways, including, among such improvements, the construction of sidewalks. The petition herein is based upon the theory that this sidewalk could properly be constructed and the cost thereof provided for, so far as the assessing of property owners was concerned, in no other manner than by application of the provisions of See. 50 and those immediately succeeding. The same statute, however, on page 45, contains Sec. 70 (Rev. Stat. 1536-232; Lan. 3621), a part of which I will read:

“The council of cities and villages may provide by ordinance for the construction and repai^ of all necessary sidewalks, or parts thereof, within the limits of the corporation.”

And then follow provisions as to the manner in which the construction of a sidewalk may be provided for; an opportunity given the owner of abutting lots or property to construct for themselves, and in default thereof, providing for the construction by the municipality, and the imposing of the costs upon the abutting property owners.

After as critical examination as .we have been able to give to these various sections, we' are of the view that an alternative procedure was given to municipalities for the construction of sidewalks; that they were not h,eld to the somewhat costly and slow process provided for general improvements under Sec. 50 et seq., but that they might proceed in the summary manner provided by Sec. 70 and sections immediately following it. We are of the opinion also that the proceedings so required have been, in this ease, substantially carried out. It appears that before the adoption of this new code a general ordinance for the construction of sidewalks had been enacted. No special ordinance was passed for the construction of this particular sidewalk, and our judgment is, that one was not required. , - ■

It is asserted in this petition that no opportunity was given, to the owner to build the sidewalk because, it was not pointed out to her what .should.be the grade upon which the sidewalk should be established; that no specifications were furnished her and no opportunity given her to determine just how the sidewalk should be constructed. Our judgment is, that if she complied with the notice given to her and in accordance with all the light given her by the resolution ordering the improvement, the city could not complain if it were in default in any way in not providing her with the specifications for the improvement.

This sidewalk was constructed of brick five feet wide, not along her entire frontage, but along part of it, but even if the entire cost of construction of the walk along her entire frontage had been placed upon .her property we see nothing in this statute which would inhibit such action of the municipality. The statute in this alternative procedure makes no condition that the lands or lots abutting upon the improvement shall be benefited thereby. It seems to be the contemplation of the legislature, that the mere fact that the lots or lands abut upon the .sidewalk, shall be sufficient evidence of benefit to justify the imposition of the cost upon the property. At any rate, there is no requirement in this part of the statute that the council shall ascertain in any way that-the land is benefited, but the statute is express that the council may assess the costs of the improvement upon the abutting lot or lots or lands. ,

It may be that a court of equity, if there was an oppressive use of the power given to the municipality, might by injunction stop the exercise of such power. It may be that a court might have jurisdiction to prohibit a gross abuse of that discretion which is lodged in the legislative power of the municipality. But nothing of that kind ap: pears here. It is urged that this sidewalk was constructed in front of property known as farm land, and that the sidewalk was constructed in such a way that it was of no special benefit to the land along which it lay, by reason of its being so constructed that the water would not flow away from it, but it appears that the council assessed not much more than one-half of the cost of the sidewalk upon this abutting land. The land abutted on'a street running north and south, and a large part of ■the walk, nearly but probably not quite half, in front of the plaintiff’s property was constructed on the opposite side of the street; these two walks were- connected'by a crossing, so that a person could have a continuous sidewalk by using both sides of the street. There is not expressed dn this part of the statute any limitation as to the percentage of the' assessed valuation of plaintiff ’s property which may be charged with the cost of this kind of an improvement.1 But even if the limitation in earlier sections applies, and even if sbe could be charged only with 33 1-3 per cent of tbe entire valuation of ber property for taxation, still there can be no complaint in this case. Tbe amended petition alleges tbe value of the property as assessed for taxation at $1,290; tbe amount of tbe costs here assessed was only $182.32 or, with penalty added, $204.12, considerably less than 33 1-3 per cent of the value of tbe land as appraised for general tax purposes.

Tbe statute subsequently passed in 1904, amendatory of many of these sections, does not greatly aid tbe present inquiry. The sidewalk under consideration was constructed in 1903 and while tbe statute of 1902 was in force as originally passed. There are some provisions in the statute of 1904 which may, however, throw some light upon the construction placed on that of 1902 by the legislature passing the later act; but we think that so far as this question is concerned it does not disturb the view which we have taken. On the contrary, it rather reinforces and strengthens our conviction as to the proper construction to be given to the municipal code of 1902 (96 O. L. 20).

Under the new act in Sec. 73 as amended by 97 O. L. 124 (Rev. Stat. 1536-235; Lan. 3624), it is provided that “No other or further proceedings for the construction or repair of sidewalks, curbing or gutters and levying assessments therefor shall be necessary by the department of public service, or council, than the proceedings required under this and the two preceding sections;” — which would be Secs. 71 and 72 (Rev. Stat. 1536-233, 1536-234; Lan. 3622, 3623). Our judgment is, that this was inserted in the amending section rather for the purpose of relieving any doubts as to the construction of the original See. 73, than for the purpose of changing or modifying the law, ■ in respect to which attention has been called.

In the code of 1902, Sec. 71 provides for a notice to the owners of the abutting property; Sec. 72 provides for the notice to nonresidents or persons not found, and then See. 73 provides that on failure of the owner to construct a walk, the same may be done at his expense, without any qualification as to the benefit it may be, and without any qualification as to the' amount that may be assessed. The provision is, that the cost of the walk may be assessed. Whether the limitation as to amount of assessment found in other sections applies, we do not find it necessary to decide. .

In the latter part of Sec. 73, it is provided that the “expense shall be assessed on all the property bounding, or abutting thereon, and shall be collected in the same manner, with a penalty of 5 per centum and interest after failure to pay at tbe time fixed by the assessing ordinance as in other cases of improvements.”

Now, as to general improvements provided for by Sees. 50, 51, 52, 53, etc., there was a provision for the manner in which the costs of the same should be paid. Section 51 treated of the method in which the assessment could be paid and of the issue of bonds in anticipation of such payment and provided that, “The county auditor shall annually place upon the tax duplicate the penalty and interest.”

Now the very fact that, in this provision as to the cost of a sidewalk constructed under a resolution where the whole cost is placed upon the property, no provision is made that that cost shall be- assessed in the same manner as other costs, leads to the inference that the understanding of the legislature was, that this enactment was a proceeding independent of the other; otherwise it would not have been necessary to make this provision as to the certifying and collecting of the assessment for the cost of improving a sidewalk under Secs. 71, 72 and 73.

Our view of the whole matter is, that the plaintiff, upon whom the burden rested, to show irregularities and defects in the proceedings for the construction of this sidewalk and the imposition of the costs, has not sustained that burden by the evidence; that the theory which has been the basis of this action is not tenable; that the council did not proceed under See. 50 and those immediately succeeding, but under the other sections to which reference has been made. We do not adopt the contention that it is incumbent here for the defense to show all their procedure for the construction of this sidewalk and the assessing of these costs; the burden, in our judgment, does not rest upon the municipality, but whatever defects are claimed by the plaintiff should be pointed out and proven to the court, under the denials made in the answer of the defendant. Our conclusion is, that the injunction asked for should be refused; that the petition of the plaintiff should be dismissed, and judgment rendered against the plaintiff for the costs.

Parker and Haynes, concur.  