
    Savage et al. v. Board of County Commissioners of Hardin County et al.
    (Decided April 28, 1928.)
    
      Messrs. Stillings & Johnson and Mr. L. B. Brown, for plaintiffs.
    
      Messrs. Sticlde é Cessna, Messrs. Mahon <£ Mahon, and Mr. John H. Smieh, for defendants.
   Justice, J.

The action was originally brought' in the court of common pleas of Hardin county to restrain the defendants from certifying, placing on the duplicate, land collecting certain assessments levied against plaintiffs ’ lands for the improvement of section A, intercounty highway No. 228. That court granted a perpetual injunction as prayed for, and the defendants appealed the cause to this court.'

It appears that in the year 1913 the state took over the Kenton and Marysville turnpike and made it a part of intercounty highway No. 228. In 1914 the state improved section A by original construction, with water-bound macadam, and thereafter maintained it by applying thereto treatments of crushed limestone and tar. In the years 1923 and 1924, section A was rebuilt by the highway director ; two new culverts were constructed; the pavement was widened; and a wearing course of bituminous macadam was placed on top of the material used in the 1914 improvement. •

It is the contention of the plaintiffs that the 1923-1924 improvement was a repair job; that in making such repair the director of highways did not change the type of the road, and use as the principal material in making such repair a material different than that used in its original construction; and that, therefore, their lands cannot be legally assessed for such improvement. It is the contention of the defendants that the work done was either a new construction, or such a repair as is authorized by Section 1224, General Code, and that plaintiff’s lands are therefore legally assessed.

We have carefully considered all the evidence in this case. It is not in dispute. And without further comment thereon, we find and hold that the improvement was not a new construction. The improvement was nothing more nor less than a repair of the road. But was it a repair of such character as to justify the assessments complained of?

Counsel for defendants contend that Section 1224, General Code, is controlling, and authorizes the assessments in question. This section, so far as pertinent here, provides:

“When in the repair of an intercounty highway * * * the director changes the type of such road and uses, as the principal material in making such repair, a material different from that [of] which the road was originally constructed, not more than ten per cent, of the cost and expense of such repair may be assessed against the property * # •* within one mile on either side thereof * *

' This statute is plain. It provides when assessments may be levied. Obviously, to authorize an assessment under this statute, the director of highways, in repairing a road, must not only change the type of the road, but he must also use, as the principal material in making such repairs, a material different than that used in its original construction.

Concededly, the road was originally constructed by the state as a water-bound macadam. If not in the year 1917, then in the year 1921, the state converted the road from a water-bound macadam to a bituminous macadam. From the year 1921 to the year 1923 the pavement was bituminous macadam. In the years 1923 and 1924 the road was again surface treated with tar. Our conclusion, therefore, is that the type of the road was not changed by the 1923-1924 improvement.

Since the type of the road was not changed by the 1923-1924 improvements, it is of no moment here whether the director of highways, in repairing the road, did or did not use as the principal material in making such repairs a material different than - that used in the original construction of the road. We therefore do not decide that question.

Holding these views, it follows that the assessments are not authorized under Section 1224, General Code, and that plaintiffs are entitled to the- relief prayed for. The same decree should be entered here as was entered in the court of common pleas.

Decree for plaintiffs.

Crow and Hughes, JJ., concur.  