
    Riesenberg et al. v. City of Cincinnati et al.
    (Decided January 6, 1936.)
    
      Messrs. Riesenberg, Cohen S Steltenpohl, for plaintiffs.
    
      Mr. John D. Ellis, city solicitor, for defendants.
   •Hamilton, J.

This case is here on appeal from a judgment of the Court of Common Pleas, enjoining the collection of an assessment against plaintiffs ’ property for street improvements.

Plaintiffs, Alphonse G. Riesenberg and others, were the owners of certain property located at the southwest corner of Plum and Genesee streets in the city of Cincinnati.

It appears that on the 12th day of April, 1928, the council of the city of Cincinnati passed a resolution of necessity for the improvement of Plum street from certain termini, on which street the plaintiff’s property abutted. The resolution provided for the paving and widening of Plum street. Plum street was 40 feet wide, and it was proposed in the resolution to widen it to 46 feet by taking 3 feet from each sidewalk, 67 per cent of the cost of the improvement to be assessed against the abutting property. The resolution further provided that the improvements were to be made in accordance with the plans, specifications, estimates and profiles on file in the public works section of the city manager, and notice to that effect was served on the plaintiffs. During the year 1929 the city proceeded with the work, and repaved the roadway of Plum street between Genesee and Court streets, but the roadway was not widened and the repaving was done between the former curb lines without moving the curbs. It was further alleged that part of the roadway was not paved south of Court street, for which the resolution had provided.

The city of Cincinnati thereupon levied the assessment to pay the cost of the improvement as made.

The case was submitted to the court on an agreed statement of facts, which disclosed that the street was not widened, but only the pavement between the curbs was resurfaced and an assessment levied to pay the costs thereof, and that the same was placed upon the tax duplicate for collection, and it is to prevent the collection of this assessment that the injunction is now sought.

A supplemental answer was filed by the city, stating that since the entering of the judgment on April 5, 1935, the improvement has been completed by widening the street to 46 feet, as provided in the resolution in question.

The question for determination here is: Are the plaintiffs entitled to enjoin the collection of the assessment on the ground that it was illegal and unauthorized by reason of the departure in the construction of •the improvement from the resolution of necessity passed April 12, 1928?

The case of City of Cincinnati v. Cincinnati & Spring Grove Avenue Co., 26 Ohio St., 345, is ample authority for the granting of the injunction as prayed for. In the opinion the Supreme Court states: “* * * no such improvement can be made, the cost of which is to be specially assessed, without the concurrence of two-thirds of all the members of the city council, unless two-thirds of the owners to be charged petition in writing therefor. In directing the execution of the work, a majority of the members of the council is all that is required.”

This indicates why it was necessary to make the improvement substantially in conformity with the resolution of necessity. The improvement may be affected as well by subtracting from it as adding to it. The subtracting from the improvement, to-wit, the widening of the street by taking 3 feet from the sidewalk on each side, is a substantially different improvement, and may have been of great importance to the assessed property holder.

Under these facts, the plaintiffs are entitled to the injunction as prayed for, and it is so decreed.

We are not, however, passing on the question of the validity of a reassessment, upon the completion of the improvement in accordance with the original ordinance of necessity. It is suggested in the brief of counsel for plaintiffs that the delay of five years in completing the improvement is such a delay as would invalidate any new assessment. This would involve several questions of law, which we can not determine in this law suit.

Injunction granted.

Boss, P. J., and Matthews, J., concur.  