
    S. O. Griswold v. F. W. Pelton, Treasurer et al.
    1. In an assessment by frontage upon abutting land in bulk, section 542 confines the assessment to the front of such land to the usual depth of lots, which is to be ascertained in the manner prescribed in said section; and the per centum limitations of section 543 apply to the value of the frontage to that depth alter the improvement is made.
    
      2. Where an assessment has been made and placed upon the duplicate of the county upon land in bulk, the depth of which exceeds the usual depth of lots, to pay for the improvement of a street upon which it abuts, the collection of such assessment will be enjoined at the suit of the owner of the land, without prejudice to the right of the corporation to collect the amount properly chargeable against the frontage of the land.
    ■ti. In an action to enjoin the collection of such an assessment, which is a proper charge against the abutting front of the land, the parties may so frame their pleadings as to enable a court of equity, on finding the assessment to be merely irregular and defective, to proceed under section 550 to ascertain the amount properly chargeable against the front of the land.
    Error to the District Court of Cuyahoga county.
    By virtue of an ordinance passed on the 3d of March, 1874, the city of Cleveland, in that year, improved Chestnut Ridge street, from Lorain street to the southerly limits of the city.
    The ordinance provided that the costs and expenses of the improvement, except the cost of street intersections, should be levied and assessed upon the frontage of the several lots or parcels of land bounding and abutting on said street between the points aforesaid.
    The plaintiff is the owner of twenty acres of unallotted land, which has a frontage of over 1,200 feet on the west •side of the street improved, and extending back to an average depth of 800 feet.
    After the improvement was completed, the city, on the 8th of September, 1874, by ordinance, assessed a special tax, payable in five annual installments, at the rate of $3.52 on each foot front, on the abutting lots and lands, for the purpose of paying the costs and expenses of the improvement. The aggregate amount assessed on the plaintiff’s land was $4,359.80.
    This assessment was certified to the county auditor, who has placed the same on the duplicate of the county as a charge upon the plaintiff’s tract‘of twenty acres of land.
    Before the first installment of the assessment became payable, the plaintiff commenced an action in the Superior Court of Cleveland against the defendants, to enjoin the collection of the assessment.
    The grounds upon which the injunction was sought are substantially these :
    1. That the preliminary steps essential to the jurisdiction of the council to order the improvement to be made were not taken.
    2. That if the tax is not wholly illegal, it is to such an extent excessive that its collection should be enjoined.
    If the assessment is held not to be void, but only excessive, then the injunction is asked as to such excess, and the plaintiff says, that if the amount he ought to pay can be ascertained in any way, he is ready and willing “ to pay the same now into court, as well as his proportion of the installments due as those to become due.”
    By their answer, the defendants deny each and every irregularity, informality, and defect set forth in the petition, relative to said special assessment; and they ask that the petition may be dismissed, and for other proper relief.
    On appeal, the cause was heard in the district court, and ■a decree rendered dismissing the petition. A motion for a new trial was made and overruled. The plaintiff took a bill of exceptions, setting out all the testimony taken on the hearing, including the recommendations, declarations, resolutions, ordinances, etc., of the board of improvements- and city council, relating to the improvement, assessment, etc., which is made part of the record.
    By this proceeding the plaintiff in error seeks a reversal1 of the judgment of the district court.
    
      Grannis $ Griswold, for the plaintiff in error:
    The tax assessed is greatly in excess of the amount with which the council could legally charge the land of plaintiff.
    When the ordinance ordaining the improvement was-passed, viz., March 3,1874, sections 543 and 648, as amended in 1871, were both in.force. By the limitation of section 648, the amount of any annual assessment was limited to-ten per cent, of the duplicate value of the land to be charged, and by section 543, the aggregate amount of the levy could not exceed twenty-five per cent, of the value of the land after the improvement. It is true that section 543 was subsequently amended, so that as to cities of the first class, the-annual levy could be ten per cent, of the value of the land after improvement. The ordinance levying the tax was not passed until after this amendment; but it is confidently submitted, that the statutes in force at the time of the-passage of the ordinance, by which the improvement was ordered to be done at the expense of the property holders, governed and fixed the rights of the parties. We claim, this, both on the ground of the statute and of common honesty. This matter of special assessments, w'e submit, is-a proceeding within the meaning of the act of February 19, 1866 (8. & S. 1). Neither the ordinance for the improvement, nor for the levy of the assessment, are independent transactions.
    If it be true that this matter is a proceeding, within the-meaning of the statute, then clearly the repeal of section-543, or rather implied repeal of section 648, so far as it applies to cities of the first class, could, in no wise, affect the-rights of the owners of this land. But whether or not this is a proceeding within the meaning of the statute, c-common honesty requires that the owners of the land to be charged for a special improvement should not be charged in excess of what the law provided, when, by the ordinance ■of the city, their lands were made subject to the charge, because the legislature subsequently enlarges the power of the city to tax.
    It appears from the record that this .land of plaintiff is a tract of about tw’enty acres, and has never been allotted or .subdivided. It stands upon the tax duplicate listed as an entire tract and the assessment is charged upon the whole twenty acres. The record shows that the southern boundary of the tract is a county road, and that all the land upon the street improved, except a tract directly opposite, is allotted, and that the average depth of such lots does not exceed one hundred and fifty feet. The average valuation of the alloted lands, as appears from the record also upon the ■duplicate, is less than a dollar and a half per foot. In Cincinnati v. Oliver, 31 Ohio St. 371, it was held, that when lauds lie in bulk upon a street improved, they can only be •charged with an assessment to the depth of the adjoining •or neighboring lots, and that section 542 applies as well when the assessment is by the rule of frontage as by the •duplicate value. In that case, the assessment was not made a tax, but simply a. charge to be enforced by suit, the question of the value of so much of the frontage as was liable could be inquired into, and was ascertained, and the owner of the land released from the excess over the value of that portion subject to charge. But in this case, the city made the assessment a tax in the first instance, certified it to the auditor, and he placed the same with the general taxes on the whole tract. If of any validity, it is made a lien and charged on the whole twenty acres, and if not paid, the treasurer can return the whole land as delinquent, and proceed to sell the whole, or if less than the w7hole will produce the tax, then a parcel not subject to the assessment .might be sold. Here then is a tax levied on land not subject thereto, and w'-hich may be sold, although never liable for the tax charged. If such a tax can be upheld, then surely the restriction of the constitution upon the power of assessment becomes a nullity, and the power of municipalities becomes omnipiotent.
    • Heisley, Weh § Wallace, for defendants in error: ■
    The limitation of ten per centum of the duplicate valuation of the lots and lands assessed for any one year should control in this case.
    As to the twenty-five per cent, limitation, see section 543 of the code, as amended May 2, 1871 (68 Ohio L. 125); Wilder v. Cincinnati, 26 Ohio St. 287; Goodale v. Fennell, 27 Ohio St. 426; Krumberg v. Cincinnati, 29 Ohio St. 69 ; Cincinnati v. Oliver, 31 Ohio St. 871.
    It is said, however, that defendants can collect only ten per centum of the duplicate valuation of the lot or land assessed in any one year, because the ordinance providing for the improvement was passed before the amendment of section 543 in 1874.
    The ordinance providing for the improvement was passed March 3,1874, section 548, as it pertained to ten per centum of the value of the lot or land in cities of the first class, was-amended March 30, 1874. The proposals to do the work were advertised for; bids received; the work let, prosecuted, and finished; and the assessment made and levied, subsequently to said amendment.
    The clause in section 648 did not limit section 543, as it pertained to cities of the first class.
    By the amendment of section 548, May 2,1871 (68 Ohio L. 125), cities of the first class could levy and assess for any improvement upon any lot or land twenty-five per centum of the value of such lot or land after such improvement was made. The excess thereof should be chargeable to the general revenue.
    By the amendment of section 648, May 2, 1871 (68 Ohio L. 133), it was provided that no more than ten per centum, of the duplicate valuation of the lot or land should be assessed thereon for any oue year.
    It will be observed that this proviso is inserted in a chapter (51) referring alone to general taxation, and tacked on a section (648) that pertains solely to general taxation. See Meissner v. Toledo, 31 Ohio St. 394.
    We say, assessments and limitations for ordinary street improvements are provided for in chapters 48 and 49, and not in chapter 51, containing section 648 of the code, and therefore this section does not apply in this case.
    For an illustration of our argument, take a case on the same street, pertaining to the same assessment as the one at bar, as found by the same judges that tried the case at issue, at the same term of the district court.
    Duplicate valuation of lot- forty feet front, $40 for the entire lot; assessment, $3.50 per front foot, making $140; made payable by ordinance in five equal annual installments ; hence should collect each year $28; value of land, after improvement was made, as found by the court, $14 and upward per front foot.
    By section 543, may collect $140 in the aggregate, because that is not more than twenty-five per centum of the value of the lot after the improvement was made. May also collect interest on the deferred installments. Code, §§ 544, 666; Butler v. Toledo, 5 Ohio St. 225; Steese v. Oviatt, 24 Ohio St. 248; Gest v. Cincinnati, 26 Ohio St. 275.
    By section 648, can only collect ten per centum of the duplicate valuation of the lot per year, or on the whole lot, $4.
    The interest on $140, at seven per centum per annum, would accumulate twice as rapidly as that. . Hence the assessment could never be collected, and the lot would run more and more in debt to the city.
    A statute that is impossible to be performed has no validity. Hence the proviso in section 648 does not modify or limit section 543, as it pertains to cities of the first class.
    There is no right without a remedy. Municipal Code, § 561. A city must have a remedy to collect its tax. See Municipal Code, § 561; Upington v. Oviatt, 24 Ohio St. 232; Meissner v. Toledo, 31 Ohio St. 394; Blanchard v. Bissell, 11 Ohio St. 96; Warner v. B. & O. R. R. Co., 31 Ohio St. 265; Butler v. Toledo, 5 Ohio St. 225; Brevort v. Detroit, 24 Mich. 322; Mills v. Charleton, 29 Wis. 400 ; Schenley v. Com., 36 Pa. St. 29; Hines v. Leavenworth, 3 Kan. 186 ; Hunsaker v. Borden, 5 Cal. 288.
    The assessment covers the plaintiffs’ entire tract of land.
    In the trial of this cause the plaintiff offered no testimony .to show the value of his land to the depth of an ordinary lot on the street, or any depth whatever, after the improvement was made. The court, therefore, was bound to presume the land to the depth of an ordinary lot was at least'worth four times the assessment placed thereon after the improvement was made. McAuley v. Chicago, 22 Ill. 563; O'Kane v. Treat, 25 Ill. 557 ; Smith v. Leavenworth, 9 Kan. 296, 302; McNamara v. Estes, 22 Iowa, 246; In the matter of Brasford, 50 N. Y. 509; Ridenour v. Saffin, 1 Handy, 464.
    The court further found, undoubtedly, that the assessment levied by the-city upon the frontage of the land covered the same to the usual depth of lots, which was sufficient for the purposes of the collection of the assessment, however much farther the assessment may have run.
    The city has the privilege of collecting its assessments in three ways: first, by suit (section 456); second, by the city treasurer or other officer (section 651) ; third, by,the county treasurer, from the county duplicate (sections 554, 652, 653). The city had the right to collect this assessment by means of the county duplicate, and resorting to that mode of collection it had to take the duplicate as it found it.
    If the city could tamper with the county duplicate, and divide land placed upon it into lots, the owner having the constitutional right to divide his land into lots, inextricable confusion would ensue.
    When an assessment is made by the foot front or valuation, the value of the land, if unallotted, shall be ascertained to the usual depth of lots in the vicinity. Municipal Code, § 542 ; Cincinnati v. Oliver, 31 Ohio St. 371. But no powei is given to allot a man’s property and place the same on record.
   Gilmore, C. J.

It is unnecessary to examiue at length the objections that the plaintiff urges against the validity of the proceedings and ordinances under which the street improvement was made, and the special tax assessed in this case. In our opinion the record shows that the requirements of the law, in passing these ordinances, were sub•stantially complied with both by the board of improvements and the city council, and that the proceedings and •ordinances are not invalid. This being so, we are at once brought to the inquiry whether the assessment which has been charged upon the entire tract of twenty acres of abutting but unallotted land owned by the plaintiff is a valid .assessment under the assessing ordinance.

Subject to limitations, some of which will be noticed below, section 576 of the municipal code confers power to assess the entire costs and expenses of improving a street upon the lots and lands bounding and abutting upon it.

To prevent the abuse of this great power, the general assembly, as was its duty under section 6, article 13 of the constitution, has imposed certain restrictions upon the exercise of the power, which are not merely directory, but .are intended for the protection of the property-owners, and are, therefore, mandatory.

The most important of these restrictions are found in .section 542, which, as construed in Cincinnati v. Oliver, 31 Ohio St. 371, confines the assessment by frontage, where “the abutting lands are unallotted, to the front of such lands to the usual depth of lots, and in section 543, as amended March 30, 1874 (71 Ohio L. 45), which limits'the amount that may be assessed upon such frontage to twenty-five per ■cent, of the value of the property assessed after the improvement is made, and further limits the amount that may be assessed and collected each year to ten per cent, of the value of such lot or land after the improvement was made. These sections were in force at the time the assessing •ordinance was passed, and govern the rights of the parties in this controversy, in respect to the limitations named, to •the protection of which the plaintiff is clearly entitled.

It is apparent that in an assessment by frontage to pay for a street improvement, the assessment district, where the' abutting lots are all subdivided and numbered, consists of the lots so abutting on the improvement. If unallotted lands, as well as subdivided and numbered lots, abut upon the street improved, then such lots and the front of such unallotted lands, to the usual depth of lots, constitute the assessment district, and no assessment or charge can be made on lots or lands outside of or beyond the limits of the district as thus defined ; and it is by the value of the-respective lots and lands within the limits of this district, after the improvement is made, that the twenty-five percent. and ten per cent, limitations respectively are to be ascertained and made effective.

The record shows that the plaintiff’s lands are situate at the south end of the street improved, and have never been allotted, but that the premises next northerly, on both sides-of the street, had been and were allotted to Lorain street at the time the improvement was ordered and the assessment made, and the testimony tends to show that the average-depth of the lots next northerly, and in that neighborhood, did not exceed one hundred and fifty feet. Of course the-assessment upon these lots is limited to their depth; but-the plaintiff’s lands, which adjoin them and are unallotted, are assessed to the depth of eight hundred feet. Eor the-reason that the assessment, as certified to the auditor and placed on the duplicate, is made a charge on the entire tract of land belonging to the plaintiff, when only the front thereof, to the usual depth of lots, is legally liable to be-assessed to pay for the improvement in question, the assessment as made is clearly irregular and defective; and may be for a sum in excess of the amount that can be legally assessed upon the front of the plaintiff’s lands to the depth above indicated.

It follows that the judgment dismissing the petition must be reversed, and the collection of the assessment upon the tract of land, as placed on the tax duplicate, ought to> be perpetually enjoined.

But, inasmuch as the record shows that expenses have-been incurred in improving the street, which are a proper charge, subject to the restrictions above mentioned, on the front of the plaintiff’s lands to the usual depth of lots, the injunction must be without prejudice to the right, of the city to collect the amount properly chargeable against the plaintiff’s lands. The record does not furnish the- data from which this court can either fix the depth to which the plaintiff’s lands are assessable, or determine the-value of the land to such depth after the improvement is-made, and hence this court is unable to apply the limitations contained in sections 542 and 543, and enter a final decree in the case.

And having found that the assessment is not void, but. merely irregular and defective, the case, we think, is within the curative provisions of section 550, and the plaintiff" having framed his petition with a view to enjoining the entire assessment in case the proceedings and assessment were held to be void, or, in the alternative, of enjoining the collection of the excess only in case the assessment was found to be merely irregular and defective, and offers to pay the-amount justly due, and to become due, if it can be ascertained, and the defendants having asked for proper relief in the case, we can see no reason why the protection of the statutory limitations or restrictions can not be extended to-the plaintiff, and the rights of the parties be ascertained,, determined, and enforced in this ease under the provisions-of section 550, the same as if the parties were reversed and the city had brought an action against the plaintiff', under section 549, to recover the assessment. Cincinnati v. Oliver, 31 Ohio St. 371.

The cause is remanded to the district court for further proceedings, in accordance with the principles settled in the ease.  