
    David Smith v. The City of Toledo et al.
    1. The power to extend streets, conferred upon municipal corporations by the 26th section of the act of May 3, 1852, for the organization of cities and incorporated villages, as amended by the act of May 1, 1858 is not included in or dependent upon the power to improve streets conferred by the same section.
    2. The extension of a street is not necessarily an improvement of the street extended, and is not so treated by the statute.
    .3. The 26th section of the act above referred to, unaided by the subsequent amendatory and supplementary acts, does not authorize an assessment of the compensation paid for lands appropriated for the extension of a street upon the lots abutting upon the original street.
    
      4. "Whether the act of April 5,1866 (S. & S. 834), authorized the extension of a street as an improvement of the street extended, is not decided; but — Held, that under the peculiar phraseology of that act, the adoption of a preliminary resolution declaring the necessity of the alleged improvement, was a condition precedent to the exercise of the power of assessment conferred by the act.
    Reserved in the District Court of Lucas county.
    The plaintiff brought suit in the Common Pleas of Lucp.s county to enjoin the collection of a street assessment. The case stated in the petition was as follows: In January, 1868, the city council of Toledo passed an ordinance for the ex tension of Water street from Lagrange street, its then •eastern terminus, to Elm street, and providing for the appro priation of the land necessary to be taken for that purpose The ordinance also provided for assessing the compensation and damages which should be awarded for the land taken? upon the lots and lands abutting on Water street for its en' tire length. The necessary land was accordingly appropriated at a cost of near $30,000, all of which was assessed upon the lots abutting on the street, at the rate of about four dollars per foot front; and the assessment thus made was placed on the county duplicate for collection. The plaintiff was the lessee of certain lots and the owner of others abutting on the original street, and, as to the former, was bound, by the terms of the leases under which he held, to pay all taxes levied, and all assessments made upon the demised premises. The property so held and owned by him was all included in the assessment.
    In his .origiDal petition the plaintiff alleges that the extension of Water street was of benefit only to the property abutting on and lying east of the extension, and was of no benefit, but an injury, to property abutting upon the original street. He describes the original street and its connection with other streets of the city; and further avers, that the extension was made for the sole purpose of enabling those owning property east of Elm street to improve their prop erty, and, by connecting it with Water street, to add to its value. By an amendment to the petition, the plaintiff" avers that said proceedings were had without the adoption by the city council of any resolution expressive of an intention to' improve said street, or declaring the necessity or describing the character of the proposed improvement.
    A demurrer to the petition was overruled in the Common Pleas, and judgment rendered for the plaintiff. On appeal to the District Court, the case was reserved for decision here.
    
      M. JR. Waite, for plaintiff':
    I. City of Cleveland v. Wick, 18 Ohio St. 307, does not depend upon the act of April 5, 1866 (S. & S. 834). It does depend upon the 26th section of the towns and cities act as amended May 1, 1858 (2 S. & C. 1501), and in that case the assessment was made only on lots and lands bounding upon the street laid off' and established. It was a new street established, not the extension of an old one. .
    II. Under the act of 1858, it has been uniformly held that the assessment must be confined to the property bounding and abutting upon the part of the street extended. Scovill v. City of Cleveland, 1 Ohio St. 133; Nor. Ind. R. R. Co. v. Connelly, 10 Ohio St. 163; Creighton v. Scott, 14 Ohio St. 441.
    III. The act of April 5, 1866, is not applicable to street extensions. It does not provide for assessments to pay for land taken, nor does the act of 1852. Under .that act an assessment could only be made to defray the expenses of improving a street.
    If the statute of 1866 applies, the resolution of the city council, declaring the necessity for such improvement, as required by law, was not passed, nor was the proper notice published. Welker v. Potter, 18 Ohio St. 85.
    
      Scribner ‡ Kurd, for defendants, in support of demurrer;
    ' I. The improvement was made under the provisions of an act passed April 5,1866. S. & S. 834.
    The power to make the assessment seems to be expressly conferred for such an improvement as this. Any doubt as to the construction is removed by City of Cleveland v. Wick, 18 Ohio St. 307.
    II. The mode of assessment adopted by the defendant was authorized by statute.
    The statutes previous to that of 1866 provided for an assessment upon the property through which the improvement passed, or near' thereto; and also gave power to levy a special tax to defray the expenses of improving any street, etc., and to pay the value of any lands taken for the purpose of extending any street, etc., and to assess and collect, etc., on the lands through or by which such street shall pass according to benefits.
    The statute of April 5, 1866 (S. & S. 834), provides that, the assessment may be made upon all the lots or lands bounding or abutting upon such street so improved. This-removes the objection, and the statute applies, for the extension of a street is the improvement of one.
    Does the code require a declaratory resolution to be-passed and published by the council before a street can be-opened or extended ?
    The object of such a resolution is to inform people of the purpose of the council to make the improvement, that they may file any claim they may have for damages. When, therefore, there are nor can be no claim for damages, such resolution and notice is not required. 19 Ohio St. 406. But there are no damages as such consequent upon the opening or extension of a street. The owner of property taken is entitled to compensation for what is so taken. The constitution guaranties it, and such resolution, under such circumstances, is an idle form.
   Stone, J.

The street laid out and opened, pursuant to-the order of the city council, extended from Lagrange street to Elm street. It was laid out and opened under an ordinance which provided for the extension of Water street, and the question is presented, whether the assessment-made upon the lands fronting upon the original street, to pay the cost of the land appropriated for the new street was authorized by law. It was suggested in the argument originally filed on behalf of the defendant, that the assessment was authorized by the 26th section of the act of May ■3, 1852, to provide for the organization of cities and incorporated villages, as amended by the act of May 1, 1858, without reference to the amendatory act of April 5, 1866; but on the re-argument subsequently had, this position was, we think, properly abandoned. The section referred to, as amended by the act of May 11, 1853, authorized all municipal corporations to lay off’ and establish, to extend and to improve streets, and where a street was improved, to charge the expense of the improvement upon the abutting lots. As amended by the act of May 1, 1858, municipal corporations were authorized to include in the assessment the value of the land appropriated for either of the purposes named; but with respect to the lands to be assessed, no change in the language of the original section was made by either amendment. In N. I. R. R. Co. v. Connelly, 10 Ohio St. 159, and Creighton v. Scott, 14 Ohio St. 438, it was decided by this court, in accordance with the decision in Scovill v. The City of Cleveland, 1 Ohio St. 133, where an analogous’ statute was under consideration, that where a part of a street only was graded or paved, the lands authorized by this section to be assessed were those abutting upon that part of the street thus improved.

The power of assessment with respect to the cost of tke land taken for the extension of a street, is certainly not more extensive. Where a part of a street is improved, as by grading or paving, it may, with much reason, be claimed that the street, as a whole, is within the meaning of the statute improved; but the extension of a street is not necessarily an improvement of the original street, and is not so treated by the statute. Power is given by the section cited to extend streets; but this, like the power to open and establish streets, is an independent power. It is not embraced in the power to improve streets; and while the extension of a street may, in a particular ease, have the ■effect to improve the street extended, the power of the corporation to cause the extension to be made does not depend upon whether or not that effect will be produced.

In the present case the city was authorized to open a ■street extending from Lagrange to Elm street upon the line actually adopted. Whether the new street was called by a new name, or was treated as an extension of Water street, the same practical result would he accomplished, and the effect upon the original street, and the property abutting thereon, would be the same.

The correctness of this construction of the act of 1858 was impliedly recognized by subsequent legislation. Amendatory and supplementary acts were passed enlarging, in the particulars referred to, the power of municipal corporations with respect to assessments. Of this character was the act of April 5, 1866 (S. & S. 834), in force at the time the proceedings now in controversy were had. This .act authorized the city council, in their discretion, to charge the cost of the improvements therein referred to, by a ratable assessment, upon the lots abutting upon the entire street, or upon those only abutting upon that part of the street where the improvement was made. It is insisted on behalf of the city that this act authorized the assessment now in question. But if it be conceded that the extension •of a street is one of the modes of improving the, street extended, contemplated by this act, an insuperable objection to sustaining the assessment upon this ground is found in the fact that the city failed to comply with the conditions upon which the exercise of the power, conferred by this act, was made to depend. Before ordering any street improvement, the cost of which was to be charged upon the abutting lots, it was made the duty of the city council to declare, by resolution, that such improvement was necesary, and to cause such resolution to be published- for the period of four weeks. It was decided by this court in Walker v. Potter, 18 Ohio St. 85, that under the peculiar phraseology off this act, the adoption and due publication of this resolution was a necessary prerequisite to the exercise of the power of assessment thereby conferred.

It is said, on behalf of the city, that the object of the-legislature in requiring the adoption and publication of this-resolution was to fix a time within which those claiming damages by reason of a proposed improvement, after being-thus notified of its character, might be required to present, their claims. And assuming that no damages, of the character contemplated by the act, could arise by reason of the-extension of the street in question, counsel for defendant insist that these provisions of the statute have, in the present case, no application'.

But upon this point it is sufficient to say that the statute-makes no such exception. Its language is general, and applies in all cases where the expense of the improvement is to be provided for by a special assessment of particular-property. And while it is evident that the legislature, in providing for the adoption and publication of the preliminary resolution, had prominently in view the object suggested by counsel, the language of the act does not justify the assumption that this was the only object of these requirements. They were well calculated to prevent a hasty and. inconsiderate exercise of a power, not altogether exempt., from liability to abuse — that of special taxation. These-provisions being obsei-ved, no special tax could be levied to pay the expense of an alleged street improvement, unless,, before the work was ordered, or any expense incurred, a majority, at least, of the city council were willing, upon their official responsibility, to declare and to publish the-declaration, that the proposed work was a necessary improvement of the particular street.

Demurrer to petition overruled, and perpetual injunction ordered.

Day, C. J., McIlvaine, Welch, and White, JJ., concurring.  