
    City of Troy et al. v. Schnell et al.
    (Decided December 20, 1933.)
    
      
      Mr. Paul G. Gingrich, city solicitor, for plaintiffs in error.
    
      Messrs. Faust <& Faust, for defendants in error.
   Kunkle, J.

The petition in this case was filed by twenty-eight property owners who seek to enjoin the collection of certain street assessments.

In brief, the petition, after alleging the official capacity of the various defendants, recites that a portion of East West street in the city of Troy is an improved public thoroughfare extending in an easterly direction from South Market street to the main line of the Baltimore & Ohio Railroad right of way; that plaintiffs are all owners of lots and lands abutting on said East West street between the above mentioned points; that on April 7, 1930, the City Council of the city of Troy passed a resolution declaring it necessary to pave said East West street from South Market street to the main line of the Baltimore & Ohio Railroad right of way; that thereafter on August 18,1930, the said council determined by ordinance to proceed with said paving improvement; and that on May 18, 1931, the said council, by ordinance, assessed the lots and lands of plaintiffs at the rate of $5.0728, plus, per front foot.

The plaintiffs claim that said assessments are irregular, illegal and void for the following reasons:

First: The resolution passed April 7, 1930, does not establish the grade of the street, the grade of the elevation of the curbs, and does not approve the plans, specifications, estimates and profiles for the proposed improvement as required by law.

Second: That at the time of passage of said resolution, or at any other time prior to or subsequent to said passage, there was not on file in the office of the Director of Public Service of the city of Troy, plans, specifications, estimates and profiles of said proposed improvement as required by law.

Third: Notice of the passage of said resolution was not served upon the owners of said abutting property in the manner provided by law.

Fourth: That said improvement was made without proper investigation and consideration of the necessity and costs thereof, or of the benefits to be derived therefrom, and that said assessment is greatly in excess of the benefits conferred upon said property and therefore constitutes the taking of private property for public use without compensation.

The plaintiffs therefore ask that the defendants be enjoined from further proceeding to collect such assessments.

The defendant, the city of Troy, for amended answer admits that it is a municipal corporation; admits the official capacity of the other defendants, and admits that the portion of East West street referred to in the petition is a public thoroughfare within the city of Troy and that the plaintiffs are owners of lands abutting on said street.

The city of Troy further admits the passage of the resolution and ordinances in reference to said improvement as alleged in the petition.

This further admission is contained in the answer of the defendant, the city of Troy, namely:

That at the time of the passage of the resolution of necessity, No. 1076, or at any time prior to said passage, there was not on file in the office of the Director of Public Service of said city, plans, specifications, estimates and profiles of said proposed improvement.”

The city of Troy for a first defense denies each and every allegation of the petition not specifically admitted.

For a second defense the city says that although such plans, specifications, etc., were not on file at the time of the passage of the resolution, namely, April 7, 1930, they were on file and open for public inspection in the office of the Director of Public Service of said city on August 18, 1930, when the ordinance determining to proceed with the improvement was passed, and that said plans, specifications, etc., were filed before the contract for the improvement was let; that if any defect did occur in the proceedings for the assessment the city of Troy is entitled to the benefit of the provisions of Section 3901, General Code.

For a third defense the city of Troy alleges that prior to the resolution of necessity, April 7, 1930, a petition was filed by various property owners abutting on said street asking the city authorities to pass the necessary legislation for the paving of said street.

For a fourth defense the city of Troy alleges that due notice was given under the provisions of Section 3895, General Code, by publishing same in the Troy Daily News on April 10, 17 and 24, 1931, reciting that the assessment was about to be made and the amount thereof, and setting forth the facts that the clerk of said city sent out to each land owner by mail individual notices of the proposed assessments, that no objection was filed with the clerk as provided by Section 3848, General Code, and that, consequently, on May 18,1931, the final assessment ordinance was passed.

For a fifth defense the city of Troy alleges that said owners by petition sought the said improvement, and had knowledge that the work was being done; knew, or should have known by an examination of the public records, that said defect complained of existed, and that the owners knew that the cost of said improvement was to be assessed upon the abutting property owners and knew that said improvement would specifically benefit their property.

It is further alleged that the work was commenced on or about the fourteenth day of September, 1930, and was completed on or about the fifteenth day of November, 1930; that the plaintiffs failed to object to said assessment until October 14, 1931, and that the plaintiffs are therefore estopped to deny the validity of said assessment.

Plaintiffs demurred to the second, third, fourth, fifth and sixth defenses set forth in defendants’ amended answer, for the reason that the matters and reasons contained therein are insufficient in law to constitute a defense.

The demurrer of the plaintiffs was sustained and the city of Troy not desiring to plead further a permanent injunction was granted plaintiffs.

Prom such judgment of the trial court, error is prosecuted to this court.

Although the answer of the city of Troy contains various defenses, the case revolves around a consideration of the admission in the amended answer that at the time of the passage of the resolution of necessity, No. 1076, or at any time prior to its passage, there was not on file in the office of the Director of Public Service of said city, plans, specifications, estimates and profiles of said proposed improvement. It is conceded by counsel for the city of Troy that if the assessments in question are absolutely void by reason of the failure to have plans, specifications, etc., on file in the office of the Director of Public Service of said city at the time of the passage of the resolution of necessity, then the city can not avail itself of the various defenses set forth in the amended answer.

Counsel have been extremely diligent and have furnished the court with exhaustive briefs in which a' large number of pertinent decisions of the courts of this state and of other jurisdictions are cited and discussed.

"We have considered many of the cases so cited, and, in addition thereto, have made some independent investigation of the subject outside of the cases cited.

There is some conflict in the decisions so examined, but when the controlling facts in the various cases are considered the conflict to a large extent disappears.

We shall not attempt to discuss the authorities in detail, as it would be impractical so to, do in this opinion. We will content'ourselves in the main with announcing the conclusion at which we have arrived after a careful consideration of the controlling authorities.

There has also been filed with us the written opinion of the trial court. It is apparent from a consideration of such opinion that the trial court felt bound by the decision of our Supreme Court in the case of Kasch v. City of Akron, 100 Ohio St., 229, 126 N. E., 61.

We concede that there was apparently good reason for the trial court to feel that it was required, by the second paragraph of the syllabus of this case, to sustain the demurrer to- the amended answer of the city of Troy. Upon our first consideration of this case we were also of opinion that this paragraph of the syllabus in the Kasch case required us to affirm the judgment of the lower court, but upon a further study of the Kasch case, and also from a consideration of the pronouncements of our Supreme Court in various other cases, we have arrived at the conclusion that the syllabus in the Kasch case is not controlling in the case at bar. Whether our first impressions, and also the conclusion reached by the trial court, are correct, or whether our later conclusions contain a correct solution of the problems presented by the amended answer of the city of Troy, must be determined by the Supreme Court if the case reaches that tribunal.

The second paragraph of the syllabus in the Kasch case is as follows:

“It is essential to the validity of proceedings ordering an improvement authorized by Section 3812, General Code, that plans, specifications, estimates and profiles of the proposed improvement shall be- on file in the office of the director of public service in cities, or the clerk in villages, at the time of the passage of the resolution declaring such improvement necessary.”

The answer admits that at the time of the passage of the resolution of necessity, No. 1076, or at any time prior to its passage, there was not on file in the office of the Director of Public Service of said city plans, specifications, estimates and profiles of said proposed improvement.

In considering the decisions of our Supreme Court it is generally understood by lawyers that the syllabus contains the law of the case, as the syllabus must be approved by at least a majority of the members of the court. The opinion of the case, written as a rule by one member of the Supreme Court, contains the argument of such judge in support of the propositions of law stated in the syllabus.

It must be kept in mind, however, that while the syllabus states the law of the case, it is the law based upon the particular facts found in the case, and is not controlling in another case which may involve the same legal question, but in which the controlling facts are totally different from those in the case wherein the syllabus was announced. This thought has been stated by the Supreme Court at various times and is best expressed in their own language in the case of Witte v. Lockwood, 39 Ohio St., 141, at page 145. Judge Okey, in rendering the opinion of the court, uses the following language:

“An examination of the Ohio cases (of Covington, etc. [& Cincinnati Bridge] Co. v. Sargent, su,pra [27 Ohio St., 233]; Roby v. Ramsberger, 27 Ohio St. 647; Swensen [& Sears] v. Cresop, supra [28 Ohio St., 668]; Porter v. Wagner, 36 Ohio St. 471), shows an apparent conflict in the syllabi or head-notes. Although in this state such head-notes are prepared by the judges, and in all cases receive the assent of a majority —-a practice with which we are well satisfied — they are always to be read in connection with the facts appearing in the report, and so read, the cases are not in conflict, nor are they in conflict with the principles asserted in this case.”

In the case of Pittsburgh, Cincinnati, Chicago & St. Louis Rd. Co. v. Jackson, Admr., 83 Ohio St., 13, at page 16, 93 N. E., 260, Judge Davis, in announcing the opinion of the court, states among other things:

“The judgment of the circuit court is defended on the ground that the question involved is definitively settled by the rulings of this court in Genin v. Grier, 10 Ohio, 210, and City of Fostoria v. Fox, 60 Ohio St., 340. With this contention we cannot agree.
“The cases cited, like all others, should be interpreted with reference to the facts of each case and the questions presented to and considered by the court. In those cases the question now before this court did not arise.”

In the case of Baltimore & Ohio Rd. Co. v. Baillie, 112 Ohio St., 567, 148 N. E., 233, the second paragraph of the syllabus is as follows:

‘ ‘ The syllabus of a decision of the Supreme Court of Ohio definitely states the law of Ohio with reference, to the facts upon which it is predicated, and must be read in view of the facts found in such case.”

Judge Matthias, in rendering the opinion of the court, on page 570, employs the following language: “It is now claimed that the language there employed [referring to Loftus v. Pennsylvania Rd. Co., 107 Ohio St., 352], not only in the opinion, but in the syllabus, is so broad and comprehensive that the decision of this court in that case is also determinative of the question presented by the motion to quash in this case. Because the state of facts here presented is so different from that before the court in the Loftus case, the syllabus of that case cannot be regarded as determinative of the issue presented in the instant case. The syllabus of a case definitely states the law with reference to the facts upon which it is predicated, and must be read in view of the facts found in such case.”

With the above mentioned rule in mind it becomes necessary to compare the facts in the Kasch case with the facts in the case at bar.

In the Kasch case there was a failure on the part of the municipal authorities to pass a resolution of necessity finding that the sewer in question was conducive to the public health, convenience and welfare; the municipal authorities also omitted to provide plans, specifications, profiles and estimates for such improvement. It further appears from a statement on page 238 of the opinion that the plans, specifications, etc., in the Kasch case were not in existence when any of the legislation was adopted, but were in the course of preparation during the trial of the case.

In the case at bar it is admitted that the plans, specifications, etc., were not on file as they should have been when the resolution of necessity was adopted, but it is averred in the answer, and the demurrer admits the various allegations of the answer, that the plans, specifications, etc., were on file in the proper office prior to the passage of the ordinance actually ordering the improvement in question, and prior to the city of Troy entering into any contractual obligation for the paving of this street.

The important and what appears to us to be the controlling difference between the Kasch case and the case at bar relates to the conduct of the property owners in these two cases. In the Kasch case, Judge Donahue, in rendering the opinion of the court, states:

“Where the owner of property to be assessed for improvement delays the bringing of an action to enjoin the collection of the assessment until after the improvement is completed and the property benefited thereby, naturally a court will disregard irregularities and defects in the proceedings of council in making the assessment, and will, as a rule, sustain an assessment to the extent of the benefit properly chargeable against plaintiff’s property had the assessment been legally made. (The City of Cincinnati v. Bickett et al., 26 Ohio St., 49.) But it is not the purpose or intent of Section 3911, General Code, to make valid an assessment which is void because it is levied without authority of law. Stephan, Treas., v. Daniels et al., 27 Ohio St., 527.

“In this case, however, the plaintiff acted promptly, cmd brought this action to enjoin the assessment before the improvement was made, and before her property derived aniy benefit therefrom. Therefore there are no equities in favor of the city that would call for the application of a liberal construction of the proceedings of council, even though Section 3911, General Code, did not expressly provide that such proceedings must be strictly construed in favor of the owner of the property assessed or injured, as to the limitation on assessment of private property and compensation for damages sustained.” (Italics ours.)

It thus appears that the facts in the Kasch case are materially different from the controlling facts in the case at bar, and the. principle announced in the Kasch case would not necessarily apply to the case at bar.

The court in the Kasch case found that the plaintiff acted promptly and brought the action to enjoin the assessment before the improvement was made and before his property was benefited thereby.

In the case at bar it appears from the answer that the resolution of necessity was passed on April 7, 1930, and, as above stated, for the purpose of the demurrer these averments of the answer must be admitted: that the ordinance determining to proceed with the improvement was passed on August 18, 1930; that plans, specifications, estimates, etc., were on file prior to the adoption of the ordinance determining to proceed with this work, and prior to entering into a contract for the same; that thereafter a contract was entered into for said improvement, and work was commenced upon said improvement on or about September 14, 1930; that the work was completed on or about the fifteenth day of November, 1930; that on May 18,1931, the assessing ordinance was passed; and that the plaintiffs failed to object to said assessment until October 14, 1931. The city of Troy therefore claims that the plaintiffs are estopped by reason of their conduct to deny the validity of the assessment.

In the Kasch case we find the property owner objecting and seeking an injunction before any work was done, before his property was improved in any manner. In the instant case we find the property owners standing by without complaint for almost a year after the improvement was completed, evidently seeing their property benefited and improved. The plans, specifications, profiles, etc., were on file in the proper place prior to the passage of the ordinance by which the city of Troy determined to proceed with the improvement. Had the property owners objected, the ordinance to proceed with the work might not have been passed by the city authorities. The resolution of necessity is a preliminary resolution and does not bind the city to proceed with the improvement. Until the city authorities passed the ordinance determining to proceed with the improvement, and entered into a binding contract for the performance of the work, it was at liberty to abandon the project at will.

Section 3901, General Code, provides:

“If in any such action it appears that by reason of any technical irregularity or defect, whether in the proceedings of the council, or of any other officer of the corporation, or in the plans or estimates, the assessment has not been properly made against any defendant or upon any lot or parcel of land sought to be charged, the court may nevertheless on satisfactory proof that expense has been incurred which is a proper charge against such defendant, or lot or parcel of land in question, render judgment for the amount properly chargeable against such defendant or on such lot or land, but in such cases the court shall make such order for the payment of the costs as may be deemed equitable and proper.”

Section 3911, General Code, provides as follows:

“Proceedings with respect to improvements shall be liberally construed by the councils and courts, to secure a speedy completion of the work, at reasonable cost, and the speedy collection of the assessment after the time has elapsed for its payment, and merely formal objections shall be disregarded, but the proceedings shall be strictly construed in favor of the owner of the property assessed or injured, as to the limitations on assessment of private property, and compensation for damages sustained * *

The following are a few of the many cases which we have examined upon this question:

Osborne v. Huffman, Treas., a decision of the Circuit Court of this district, reported in 14 C. C. (N. S.), 239, 12 C. D., 753, and afterwards affirmed by the Supreme Court without opinion, 58 Ohio St., 697, 51 N. E., 1100. The syllabus of this case, as reported in 14 C. C. (N. S.), reads:

“Under the curative provisions of the statute sewer assessments, which are illegal for irregularity in the proceedings, are enforcible to the extent to which expense has been incurred which is properly chargeable against the property assessed and is not in excess of benefits.”

In the case of the City of Cincinnati, for use of Ashman & Scully, v. Bickett and Purcell, 26 Ohio St., 49, at page 56, Judge Welch, in rendering the opinion of the court, after referring to the objection that the notice to bidders had not been published as required by the statute, states:

“It by no means follows, however, that by reason of this defect in the proceeding the action to recover the assessment should fail. The case comes plainly within the provisions of section 550 of the municipal code (66 Ohio L. 242), which authorizes the court, in cases where such defects or irregularities occur, and ‘where expense has been incurred which is a proper charge’ against the defendants, to render judgment for the amount so chargeable against the defendants. Here the whole expense had been incurred, the work had been completed, and apparently without any objection from the defendants. The object of the advertisement for bids was to procure the work to be done at fair prices. This object was fully attained without the strictly legal advertisement, so that the absence of it did not work any injury to the defendants. They were, therefore, ‘properly chargeable’ with a proportion of the entire cost of the work.”

In the case of Upington v. Oviatt, Treas., 24 Ohio St., 232, the fifth paragraph of the syllabus is as follows :

“In such case, however, the assessment, while not conclusive, is not necessarily void. Under section 550, in a case where the improvement has been made, it may be enforced to the extent that expense has been incurred which is a proper charge upon the property assessed.”

Without attempting to further review the many authorities that might be cited reflecting upon this general proposition we are of opinion that the answer sets forth some facts, which, if proven, would constitute a defense to plaintiffs’ cause of action.

The amount of the assessment is not involved in this case. The plaintiffs seek to avoid the entire assessment. In so far as the defect above referred to and discussed is concerned, we think the properties of the plaintiffs are subject to a proper charge for the improvement in question. If the amount of the assessments is unjust or unfair that question can be considered upon the final hearing of the case.

The transcript of the docket and journal entries shows that the demurrer of the plaintiffs was sustained to the second, third, fourth, fifth and sixth defenses in defendants’ amended answer.

The petition in error claims that the court erred in sustaining the demurrer to the second, third, fourth and fifth defenses of the amended answer.

There is no sixth defense in the amended answer. It is apparent from an examination of the original amended answer that the city of Troy regarded all that portion of the amended answer, after the words “Fifth Defense” to the prayer in the answer, as constituting part of the fifth defense.

The third defense of the amended answer relates to a petition which was filed by certain property owners upon the street in question asking council to pass the necessary legislation for the paving of said street. We do not think this, as plead, constitutes a defense, and as to the third defense the judgment of the lower court will be sustained.

The fourth defense relates to certain notices given by the city of Troy to said property owners as to the making of the assessments in question, and avers that as no objection was filed by such property owners, as provided by Section 3848, General Code, such assessments became final by reason of Section 3850, General Code.

Among other things it is suggested by counsel for defendants in error that, as no equalizing board was appointed as provided by Section 3847, General Code, the facts stated in the fourth defense cannot avail the city of Troy. Section 3847, General Code, contemplates cases where the assessment is made according to benefits. The assessments in question, according to the petition, were made at $5.0728, plus, per front-foot.

Section 3848, General Code, does not contemplate the appointment of an equalizing board unless objections are filed.

We do not desire to be understood as holding that the facts set forth in the fourth defense would, under all circumstances, constitute a complete "defense to the plaintiffs’ cause of action, but are of opinion that the fourth defense contains some statements of fact which should he considered in the final determination of the ease.

The judgment of the lower court in sustaining the demurrer to the third defense in the amended answer will be sustained. The judgment of the lower court in sustaining the demurrer to the second, fourth and fifth defenses of the amended answer will be reversed, and the cause remanded for such further proceedings as may be provided by law.

Judgment reversed and cause remanded.

Hornbeck, P. J., and Barnes, J., concur.  