
    STREET ASSESSMENTS IN ACCORDANCE WITH BENEFITS.
    [Hamilton County Circuit Court.]
    Eliza R. Nulsen et al v. The City of Cincinnati et al.
    Decided, February 11, 1905.
    
      Street — Assessment for Improvement of — In Accordance with Benefits —Method of Apportioning.
    
    1. In levying an assessment for a street improvement according to benefits, regard should* be had for the depth of the lots and the relative value of each after improvement.
    2. Where the board of public service, under the pretense of levying an assessment according to benefits, in fact made no such apportionment, but simply divided the cost of the improvement by the •number of feet abutting thereon, regardless of the relative value of each lot after the improvement was made, it was a plain fraud which oan not be protected by any order that board may have made in its journal.
    Giffen, J.; Swing, J., and Jelke, J., concur.
    The plaintiffs in this action seek to enjoin the collection of certain assessments levied upon the lots bounding and abutting Imperial street, this city. The resolution of the board of public service provided that said assessment is in proportion with the benefits which result to such lots and lands from said improvement and is limited to the special benefit conferred thereby on each lot or parcel of land assessed.
   The petition contained the following averment:

“That in making said assessment said board of public service did not regard or attempt to regard the benefits thereof to the respective lots, but solely to apportion the costs and expense of the improvement upon the lots abutting thereon in proportion to their respective frontages upon said improvements. That said assessment while purporting to be according to benefits, is actually an assessment by the front foot, each front foot being assessed at the same rate although not similarly benefited. ’ ’

These allegations are fully sustained by the evidence. It appears upon the face of the proceedings that each foot of ground abutting on the improvement is assessed for the same amount regardless of the depth of the lot, and the evidence considered in connection with a view of the premises shows that the benefits, if any, conferred were by no means uniform, and that in one case, at least, to-wit, lot No. 44, no benefit whatever was conferred.

~W. H. Whittalcer and Chas. M. Leslie, for plaintiffs.

Chas. J. Hunt, City Solicitor, contra.

It is claimed, however that this court can not inquire into the proceedings of the board for the reason that it kept a journal record of its proceedings which imports absolute verity. But if the board under a pretense of levying an assessment in proportion to the benefits conferred upon the several lots abutting upon the improved street did in fact make no such apportionment, but merely divided the cost of improvement by the number of feet abutting thereon, regardless of the depth of the lots and regardless of the relative value of each after the improvement was made, it would be and was a plain fraud, which could not be protected by any entry which the board may have made in its journal to the contrary. Chamberlain v. Cleveland, 34 O. S., 551.

The testimony shows that lot No. 43 was of the value of $300 after the improvement, and lot No. 218 was of the value of $625. The limit of the assessment being twenty-five (25) per cent, of such value, the collection of all over seventy-five ($75) dollars upon lot No. 43, and all over one hundred and fifty-six and twenty-five one hundredths ($156.25) dollars on lot No. 218 will be enjoined, as well as the entire assessment on lot No. 44.

The other alleged objections against the assessment are not well taken, and a decree may be entered in accordance with the above finding.  