
    Findlay v. Frey.
    
      Street improvements — Assessments—“Foot front” — Street sections.
    
    1. Under section 2270, Revised Statutes, the value of the lot or laud, with the improvements, as assesssed for taxation, is to be taken in determining the limit to which it may be assessed for the improvement of a street on which it abuts, whether made by the-foot front or otherwise.
    2. Section 2269, Revised Statutes, applies to an assessment by the front foot only, where land, bounding or abutting on the improvement, is not subdivided into lots; and its object is, not to fix the depth of lots for the purpose of varying the amount of the assessment, but a depth beyond which its lien, cannot, in such cases, attach.
    3. Where a street is of different widths, it may, in á proceeding to < improve it, be divided into as many sections as there are different widths; and the property on each section assessed for the cost of the same.
    (Decided May 22, 1894.)
    Error to the circuit court of Hancock county.
    The suit below was brought in the common pleas of the county by Priscilla B. Frey against the city of Findlay and its treasurer, to enjoin the collection of two assessments made upon her property, one being' for the payment of the costs and expenses of an improvement of Main street, and the other for the cost and expenses of an improvement of Sandusky street; the property of the plaintiff being situated upon both streets at the northeast corner of their intersection. She alleged certain irregularities in the proceedings, and want of authority to make the assessments. An answer having been filed, the ease’was heard and the petition dismissed. On an appeal to the circuit court, the case was heard upon the pleadings and evidence, a finding of the facts was made by the court; a motion for a new trial was made and overruled, and a decree entered upon the finding, perpetually enjoining the collection of the assessment, without prejudice to the right of the city to make another and proper assessment; and adjudged the costs against the city, to which finding and judgment it excepted; and prosecutes error to reverse the same.
    The finding of facts is as follows:
    “That on April 14, 1890, the council of the city of Findlay passed an ordinance to improve Main street, in. said city, by paving' the same from Blanchard river south to Hardin street a distance of about 1,800, feet including a part of street on which plaintiff’s part of lot, to wit: Thirty feet in width and 140 feet in depth abutted, and providing further by said ordinance, that the cost and expense of said improvement should' be assessed by the foot front upon all the lots and lands abutting upon said improvement.
    “Afterwards, by another and separate ordinance, the council provided for the paving of Main street from Hardin street to Lima street, a distance of about 1,000 feet.
    “On January 19, 1891, the council passed an ordinance to assess the cost of said improvement by the foot front upon all the lots abutting upon said street between the river and Lima street, a distance of about 2,800 feet, without specifying particular lots, and regardless of their depth, which distance included the part of the lot owned by said plaintiff! The total cost so assessed was $53,030.18, making the assessment $11.13i per foot front. On July 6, 1891, the said council passed an ordinance of that date to improve Sandusky street from Main street east to the T., C. & C. railroad, including the part of said street on which plaintiff’s part of lot lies lengthwise, to wit, 140 feet in in depth, and providing further by said ordinance that the cost and expense of said improvement should be assessed by the foot front upon all the lots and lands abutting upon said improvement.
    ‘' On August 3, 1891, the council, by ordinance of that date, assessed the cost of improving said street upon the lots abutting thereon by the foot front without specifying or describing any particular lot and regardless of their depth.
    “The amounts so assessed have been before the commencement of this action certified by the clerk under the order of the council, to the county auditor, and by him placed upon the duplicate for collection.
    “At the time of the commencement of this action the improvement of Main street by paving with fire-clay brick had been completed, but the improvement on Sandusky street had not yet.been commenced, but was afterward completed.
    “All lots abutting on Main street as platted, numbered and .recorded, have a frontage on said street of 50 feet, with a depth of 200 feet, and all lots abutting on Sandusky street as platted, numbered and recorded, had also a frontage of 50 feet, with a depth of 200 feet. Plaintiff owns part of lot No. 96, situated on the northeast corner of Main and Sandusky streets, to wit: The southwest part of said lot having a frontage on Main street of 30 feet with a depth of 140 feet, and lying lengthwise on Sandusky street 140 feet and a depth, of 30 feet, the remainder of said lot being owned by other parties. The fraction of said lot so owned by plaintiff is valued upon the duplicate for taxation at 88,230.00, as follows: Buildings at $4,980.00, and lot at $3,250.00. The amount assessed against plaintiff for the Main street improvement is S11.13-J- per foot front, amounting to $334.05. For the improvement on Sandusky street the assessment against plaintiff was made bjr the foot front for the entire length of the 140 feet owned by plaintiff, lying lengthwise upon said improvement.
    “The total assessment upon plaintiff’s premises for the two improvements amounted to $1,407.66, and more than 25 per cent, of the value of the lot as assessed for taxation.
    “By the assessing ordinance, as duly passed, providing for the cost of improving Sandusky street, the street is divided into four sections. The first section of 200 feet, including plaintiff’s premises of 140 feet, is assessed at $7.28 per foot front, while the other sections, comprising lots as platted, numbered and recorded, abutting upon said improvement, to wit: Lots fifty feet frontage and 200 feet in depth, and assessed at rates varying from one to two dollars per foot front less.
    “That Sandusky street along said improvement varies in width, each section as provided by said ordinance being of different widths.
    “The assessment against plaintiff’s premises on Main street was made the same per foot front as assessed on other lots of 200 feet depth notwithstanding the depth of her part of lot was only 140 feet. And the assessment of the Sandusky street improvement, other than plaintiff’s, was made by the foot front upon all the lots as platted, numbered and recorded, to wit: 50 feet frontage and 200 feet depth.
    “Plaintiff had knowledge of the assessments which she derived from the resolution and ordinances of the council relating’ thereto, and knew that the streets were being improved and paved with fire-clay brick, and knew that her part of lot would be assessed for said improvement. Since the commencement of this action the council, by ordinance or resolution, have remitted 25 per cent, of the assessment, being that much more than the actual cost, but still leaving- the total assessment of both improvements upon the premises of plaintiff more than 25 per cent, of the valu§ of the lot exclusive of the buildings as assessed for taxation.
    “It is therefore ordered, adjudged and decreed, that the said defendants be and they hereby are perpetually enjoined from collecting from plaintiff the assessment so made for said improvements, without prejudice, however, to the making ^of another and proper assessment by the city council of .the city of Findlay, for the cost of said improvement.
    “It is further ordered that the city of Findlay pay the costs herein taxed at $--, and that this cause be remanded to the common pleas court of this county for execution, to all of which findings, order and decree, said defendant at the time excepted and does here and now except.
    “Thereupón came this cause further to be heard upon the motion of said defendant for a new trial of this cause, upon the grounds set forth in the written motion herein duly filed.
    “Upon consideration whereof the court overruled said motion and refused to grant a new trial, to which ruling’ and refusal to grant a new trial the defendant excepted and does.here and now ex- ' cept. ”
    
      Wm. F. Duncan, for plaintiff in error.
    The statute marks out three methods of assessing lots and lands for street improvements: By benefits, by valuation and by the foot front. Section 2264, Revised Statutes.
    The ‘' foot front ’ ’ is the unit of calculation. In proportion to the number of “feet front” is each lot and parcel of land assessed to pay the cost and expense of the improvement.
    The number of feet front of any certain lot or parcel of land is a question of fact. Haviland et al. v. Columbus, 50 O. S., 471. In its determination the question of depth cuts no figure. Depth is not considered in assessments by the “foot front” except where the property assessed “is land bounding or abutting upon the improvement not subdivided into lots,” and then only for one purpose, viz.: To fix a limit beyond which the land shall not be subject to such assessment. I can conceive no case where the provision can affect anything where the “land not subdivided into lots” is of less depth than “the fair average depth of lots in the neighborhood. ” Section 2269, Revised Statutes, as amended February 7, 1889; 86 Ohio Laws, 15. But in the case at bar we have no “land not subdivided into lots ” as qualified by said section, nor does the section apply to lots lying lengthwise as formerly. Cincinnati v. Seasongood, 46 Ohio St., 300, 301; 81 Ohio Laws, 86; 84 Ohio Laws 72; 86 Ohio Laws, 15.
    A lot or parcel of land has as many feet front whether' it is fifty feet deep, or 200 feet deep. Whether it is assessed for taxation or not, is a lot numbered and recorded, or is land not subdivided into lots. Its frontage neither shrinks nor stretches by reason of its depth. There is no assessment by the area. Crawford v. Cincinnati, 26 W. L. B., 215. Gibson v. Cincinnati, 27 W. L. B., 80.
    The same principle is recognized in City v. Oliver, 31 Ohio St., 371; Griswold v. Pelton, 34 Ohio St., 482; Springer v. Avondale, 35 Ohio St., 620; Parmalee v. Youngstown, 43 Ohio St., 162.
    A tract of land not of greater depth than the average depth of lots in the neighborhood may be a lot, and assessed as such under section 2269, Revised Statutes.
    
      H. D. Critchfield and J. D Critchfield, for plaintiff in error.
    Section 2, article XII, of the constitution, expressly provides that laws shall be passed taxing by a uniform rule all property both real and personal. Section 6, article XIII, of the constitution, provides that the general assembly shall provide for the org-anization of cities, etc., by general laws, and restrict them from taxation, assessment, borrowing money, etc. An assessment is not a tax, and the rules by which each is governed are distinct, and are based upon wholly different grounds. An assessment is in the nature of a special tax, and assessed against the property of those specially benefited by the improvement for which the assessment is made. Lima v. Sanitary Association, 42 Ohio St., 130; Reeves v. Treasurer of Wood County, 8 Ohio St., 333; Hill v. Higden, 5 Ohio St., 243.
    
      But all taxes, whether for corporation, township, county or state purposes, must be levied by a uniform rule on all property, real and personal. City of Zanesville v. Auditor of Muskingum County, 5 Ohio St., 590; Hill v. Higden, 5 Ohio St., 243. So that all assessments for taxation are made, whether upon real or personal property, for the purposes solely of general taxation for there can be no other purpose of taxation. The theory, therefore, that land is valued separately from the improvements for some other purpose of taxation than that of general taxation is, we submit, without the slightest fountion in fact.
    
      J. A. & E. V. Bope, for defendant in error.
    1. Section 2327, Revised Statutes, provides that while proceedings with respect to improvements shall be liberally construed, by councils and courts, to secure speedy completion of the work and payment of the assessment, yet those proceedings shall be strictly construed in favor of the owner of property assessed as to the limitations on assessments of private property. Here is not only a rule of construction and interpretation, but a limitation as well, upon both council and courts.
    2. Assessments are a species of taxation and the exercise of the taxing power, with this difference: Taxation is the exaction from individuals for their respective shares of contribution to the public burden in the maintenance of the government. Assessment is the taking of private property for public use by the right of eminent domain, and its exercise is more strictly guarded than that of taxation. Scoville v. The City of Cleveland, 1 Ohio St., 136.
    
      3. A taxing district is necessary for the validity of an assessment. Raymond v. Cleveland, 42 Ohio St., 522, 527.
    4. In no event can property be assessed for more than its ratable share of the actual cost. Pike v. Cummins, 36 Ohio St., 213, 214.
    5. The rate when assessed by the foot front must be uniform upon all property assessed. Jaeger v. Burr, 36 Ohio St., 164.
    This is a principle constitutional in its nature, universal, and to which there are no exceptions. Equality and uniformity are two essential conditions necessary to the exercise of the taxing and assessing power, made so by the letter and spirit of the constitution itself.
    6. The foundation of special assessments for public improvements is the special benefit derived by the owner of the property over and above the rest of the community, are justifiable only upon the ground of benefits, without which no assessment can be made, and the burden must be equally distributed. Wewell v. Cincinnati, 45 Ohio St., 424; Chamberlain v. Cleveland, 34 Ohio St., 561.
    Guided by these authorities and the light of the rules and principles so well settled, we claim'that, under the facts so found by the circuit court, the assessments made upon the defendant in error are void,- and in plain violation of the provisions of the statutes governing assessments, and in gross violation of the rights of the lot owners.
    Again, section 2264, Revised Statutes, provides that the ordinance assessing the cost of the improvement shall “set forth specifically the lots and lands to be assessed.”' This we understand to be the rule as approved by this court in Raymond v. Cleveland, 42 Ohio St., 528, where the court says “that now specific property to be assessed must be designated,” etc. By section 2285, the assessment is a personal obligation upon the owner of the lot, as well as a lien upon the lot itself.
    Section 2264 provides that the assessment, if made by the foot front, shall be upon the “lots” and lands abutting upon the improvement.
    Section 2269 provides, if it means anything, that in making assessments according to valuation, the council shall be governed by the assessed value of the lots as numbered and recorded; the last clause of the section, provides that the section shall apply to other assessments excepting those made -according to benefits.
    In case of Cincinnati v. Oliver, 31 Ohio St., 371, 376, this court holds that the same rule and the same limitations applies to assessments, whether by valuation or by the foot front.
    By section 2269, if in making an assessment by the foot front there is land either bounding or abutting upon the improvement, the council is required to fix the depth of such land, so that it will be a fair average depth of neighboring lots subject to the assessment. The same rule applies if the assessment is made according to the valuation for taxation. The value must be determined upon the average depth of the land. Hence, there are two essential conditions constituting the foundation of assessments necessary to their validity, and without which they are illegal, to wit, benefit and depth. That we are correct in this claim, we refer to the opinions of the court in the following cases, and the principles there laid down as governing the power of assessments: Cincinnati v. Oliver, 31 Ohio St., 377; Springer v. Avondale, 35 Ohio St., 620; Wewell v. Cincinnati, 45 Ohio St., 424, 425; Haviland v. Columbus, 50 Ohio St., 471; Chamberlain v. Cleveland, 34 Ohio St., 561; Hill v. Higdon, 5 Ohio St., 247.
   Minshall, J.

The principal objection urged to the validity of the assessments made upon the property of the plaintiff below is, that in the aggregate, they exceed the amount that can lawfully be assessed upon her property in any period of'five years. Section 2270, Revised Statutes, provides that the assessment shall in no case amount to more than twenty-five per centum of the value of the property as assessed for taxation; and section 2283 further provides that special assessments, whether by the front foot or otherwise, shall be so restricted, that the same territory shall not be assessed for making two different streets, within a period of five years in such amounts that the permitted maximum assessment will be exceeded thereby. Now, it is contended, from a construction, placed on the language of section 2264, Revised Statutes, taken in connection with the provisions of section 2790, fixing the duties of district appraisers of real estate, that the language, “the value of the property assessed for taxation, ” contained in section 2270, means the value of the land simply, without its improvements; because, by section 2264, the council, preparatory to ordering an improvement to be paid for by an assessment on the foot front or otherwise, is, by ordinance, required to set forth “specifically the lots and lands to be assessed, ” and that it appears from section 2790, that lots and lands are, for the purpose of taxation, appraised separately from the improvements upon them. We are unable to collect any such - intention from the statutes referred to. The statutes upon the subject have been in force, substantially as they how are, for a great many years, and this is the first time the. question has been raised or mooted. The practice has been uniformly the other way ; and, as we think, in conformity to the real intention of the legislature. Ordinarily, in legal contemplation, where a lot or tract of land is mentioned or described, it includes, without more, all the improvements upon it, constituting part of the realty; so that the description of the lots and lands to be assessed, required by section 2264, includes the improvements thereon for the same purpose; and it is one-fourth the value of the lot or land as assessed for taxation, that is to furnish the limit to the assessment that can be made thereon under the provisions of section 2270. The provisions of section 2790 have, as we think, no reference to, or connection whatever, with the subject of assessments; nor were the statutes regulating assessments made with any reference to this section. It requires the assessor to obtain a pertinent description of each tract and lot of real property in his district, and note on his plat book separately the value of dwelling houses, mills, etc., exceeding the value of a hundred dollars which shall be carried out as a part of the value of such tract; and this is its value as assessed for taxation, and on which taxes are in fact levied. The purpose of requiring the value of the improvements to be separately stated, was, in case of their destruction by fire or other agent, to furnish a basis for the taxation of the land, until the next decennial appraisement. It will not be claimed that a street improvement is of no value to the improvements on the abutting property; indeed, its chief value is to such improvements, increasing as it does, the owner’s convenience in the enjoyment ' of his improvements. The aggregate of the two assessments made on the property of the plaintiff below, does not exceed twenty-five per centum of its value as assessed for taxation; and they are, therefore, not invalid on this ground.

It is also claimed that under section 2269, the depth of the plaintiff’s property on the respective streets, shou]d, in making the assessments, have been taken into consideration. But this section has, as we think, no application to the ease. Where the assessment is by the front foot, it applies only where land “bounding or abutting on the improvement, has not been subdivided into lots;” and then merely for the purpose of fixing a limit beyond which the lien of the assessment shall not attach; and the limit to be fixed is, the ordinary depth of lots in the ■ neighborhood. The plaintiff is the owner of a subdivision of a lot,'and does not therefore come within the provisions of this section. The depth of her lot on Main street or upon Sandusky street, is not material, if it in fact fronts upon both. The making of assessments by the front foot has been approved as an equitable mode of apportioning the costs of an improvement upon the property benefited. Railway Co. v. Connelly, 10 Ohio St., 159. And, irrespective of its depth, where regard is had to its proper front, is as likely to avoid inequality, as any mode that may be adopted. Where property lies lengthwise on an improvement on which it also fronts, the benefit of the improvement to the propertj^ is, manifestly, more in proportion to its front than to its depth, particularly where used for business purposes. Absolute equality in making assessments, may find a place in theory, but is not at-tamable in practice. Apportionment, whether according to benefits or according to valuation, by the estimate of men, is subject to the inaccuracies of fallibility, or, per chance, to the influences of favoritism or personal interest; so that all that can reasonably be demanded of whatever method that may be adopted, is that it shall tend, in its general application, to a fair and just apportionment of the burthen among those benefited by the improvement; and that apportionment by the front foot irrespective of the depth of lots, generally accomplishes this result, is evidenced by the freqency of its adoption, where, under the statute, the-parties have a choice of different methods.

It is also objected that the assessment on San-dusky street is not uniform. The street was improved in sections, because not of uniform width. Each section is, however, of uniform width, and the assessment thereon the same. The method adopted was a just one. Each section pays for the improvement on it. The same result could have been attained by separate proceedings. This, however, would have added to the expense, without any compensation to the property holders. No good reason is shown why it could not all be done in one, as well as in manjq different proceedings. This is not inconsistent with Jaeger v. Burr's Admr., 36 Ohio St., 164. In that case, allowances were made to- some of the property holders on the improvement for improvements made by themselves on the street improved; so that the amount assessed them by the foot front, was less than it was on others for the same improvement. This, the court held, invalidated the assessment. Here, on the same section, or improvement, each is assessed at the same rate. •

It is also claimed that the property of the plaintiff lies lengthwise, but does not front on Sandusky street. That its front is on Main street, and should, therefore, under the Haviland case, 50 Ohio St., 471, be assessed for the number of feet front it has 'on Main, if turned so as to front on Sandusky street, which would be thirty feet. The finding of fact hardly warrants this conclusion. The court finds that it fronts thirty feet on Main street and lies lengthwise 140 feet on Sandusky street, without finding that it does not front thereon. In view of this uncertainty in the finding, the case - will be remanded to the circuit court to make an assessment in accordance with the rule laid down in the Haviland case, and followed in the case of Sandrock v. Columbus, Ante, 317, if the court finds that, as a matter of fact, though the property abuts, it does not front, on Sandusky street; otherwise, that the prayer of the petition be not allowed.

Other objections are made, but do not, as we think, affect the validity of the assessments, particularly, in view of the fact, that the plaintiff desired the improvement to be made, and knew that her property was to be assessed for the costs and expenses of the same.

Judgment reversed, and petition dismissed as to the assessment for the improvement of Main street; and cause remanded for fw'ther proceedings as to that for the improvement of Sandusky street.  