
    Bashore v. Brown, Treasurer.
    
      Assessments—County ' commissioners—Section 1214, General Code—Intercounty highway—Failure by landowner to file objections—Injunction does not lie, when—Section 12015, General Code.
    
    
      1. Where county commissioners have fully complied with the provisions of Section 1214, General Code, in fixing assessments upon landowners for the improvement of an inter-county highway, and given notice thereof as required by that section, and have not otherwise exceeded their statutory authority, a landowner may not enjoin the collection of the assessment under authority of Section 12075, General Code, when he has failed to file objections thereto with the county commissioners as required by the former section.
    2. The provisions of Section 1214, General Code, giving the owner the right to file such objections, and authorizing the board of county commissioners to change assessments so as to make the same just and equitable,’ furnish the owner an adequate remedy at law, which, if the proceedings are otherwise legal, he must pursue before resorting to a court of equity for relief.
    (No. 17723
    Decided May 22, 1923.)
    Ebbob to the Court of Appeals of Darke county.
    Plaintiff brought an action in the common pleas court against the defendant, seeking to enjoin the collection of a special tax assessment levied against his lands for the construction of an intercounty highway under the provisions of Section 1214, General Code.
    The petition alleges that the county commissioners fixed the amount of the cosi to be paid by the abutting landowners at 25 per cent, of the cost thereof and ordered the county engineer to make a tentative apportionment of 25 per cent.- on the abutting lands within 1% miles of the improvement according to benefits; that the county commissioners substantially approved the engineer’s report, fixed the • plaintiff’s assessment at $350, and placed the same upon the tax duplicate for collection. It further alleges that plaintiff’s land is located on an improved road almost a mile south of the intercounty highway improvement; that it is impossible to use the latter in delivering his products to market; that no special benefits will accrue to him from such improvement other than will accrue generally to other lands in the county; and that the assessment is grossly excessive and based on no benefits whatever, thus resulting in the taking of his property without compensation.
    A general demurrer to the petition was overruled by the court, whereupon the defendant filed an answer containing three defenses. In the first defense the defendant denied the substantial allegations of the petition, which defense need not be considered here. The second defense alleged that the proceedings assessing plaintiff’s property were taken in accordance with Section 1214, G-eneral Code; that the county surveyor made a tentative apportionment and assessment on plaintiff’s property as provided by statutes, which was filed with the county commissioners; that publication of notice of the assessment and apportionment was made for two consecutive weeks in a newspaper of general circulation published in the county in which the improvement was located; that the same was filed with the county commissioners together with the date when objections, if any, would be heard to the assessment; and the commissioners on the date so fixed for the hearing of objections to the assessments heard and determined the objections theretofore filed in writing with the board, equalized and adjusted the assessments, and made the same just and equitable, confirming the assessments as reported by the surveyor, or as modified by the county commissioners. This defense also alleged that the plaintiff in error never filed any objection in writing to the assessment on his land, waiving all objections he might have had, and was estopped from enjoining the assessment for the reason that he had a plain and adequate remedy at law. The third defense is equivalent to a demurrer for the reason that it alleges a defect of parties defendant, asserting that all of the assessed owners were necessary parties to the action, whereas the treasurer only had been made a party thereto.
    
      The trial court overruled the plaintiff’s general demurrer to the second and third defenses, and the plaintiff not desiring to plead further, the court rendered judgment dismissing the petition. This judgment was affirmed by the Court of Appeals, whereupon error was prosecuted to this court.
    
      Messrs. Myers & Myers, for plaintiff in error.
    
      Mr. John M. Eoel, prosecuting attorney, for defendant in error.
   Jones, J.

In view of the state of the pleadings, the trial court could not do otherwise than overrule the demurrer of the plaintiff to the second defense of the answer. The material allegations which sustain plaintiff’s petition are that no special benefits accrued to the plaintiff from the improvement, and that the assessment was grossly excessive and based on no benefits whatever. These allegations were denied in the first defense. Furthermore, the allegations contained in the second defense, and which are admitted to be conceded by the demurrer of the plaintiff, alleged complete regularity of proceedings in conformity to the provisions of Section 1214, General Code. Not only that, but the second defense alleged that on the date fixed for the hearing of the objections to the assessment the board equalized and adjusted the assessments and made the same just and equitable. No reply was filed denying these facts.

Plaintiff below availed himself of the provisions of Section 12075, General Code, which invested the common pleas court with jurisdiction to enjoin the illegal levy or collection of taxes. The conceded allegations are that the statutory steps had been followed giving the commissioners jurisdiction to make the assessment; nor does it appear that the assessment exceeded any legal limitation. Plaintiff’s contention is that he can disregard the provision of Section 1214, General Code, which permits landowners to file objections to the assessment, and later invoke the jurisdiction of a court of equity by injunctive process, for the reason that Section 1214, General Code, does not give him adequate remedy at law. He bases this argument upon the fact that the statute does not give him compulsory process for the subpoena of witnesses, nor provide for the admission of evidence touching the assessment, nor any relief by way of error or appeal from the decision of the board. Assuming for the moment that the assessments were not made “just and equitable,” the contrary of which the second defense alleges and the demurrer concedes, can it be said the landowner may ignore a statute which gives him full and complete remedy for his complaint? Section 1214, General Code, provides that after the tentative apportionment has been made by the surveyor and filed with the commissioners for the inspection of persons interested, publication shall be made setting forth that the same is on file and fixing the date when objections to the assessments will be heard. The section then provides that the owner may file his objections in writing with the county commissioners before the time set for hearing and—

“If any objections are filed the county commissioners * * * shall hear the same and act as an equalizing board and they may change said assessments if in their opinion any change is necessary to make the same just and equitable, and such commissioners or trustees shall approve and confirm said assessments as reported by the surveyor or modified by them.”

The second defense alleges that the assessments were made just and equitable. "Were it not so, a statutory duty was imposed upon the landowner to file his objections, which duty he entirely ignored. Had the apportionment been unjust or inequitable, any complaint he may have had in respect thereto might have been corrected and adjusted by the board. It became his duty to avail himself of the statutory remedy, which may have afforded him full and adequate relief, instead of resorting in the first instance to a court of equity, seeking to enjoin the collection of the tax.

We are constrained to hold that the plaintiff had an adequate remedy at law, as that principle is generally applied. We find that the lower courts of this state have, in several instances, held that a statutory proceeding for corrective relief required to be taken in a case of this character must be resorted to before an applicant can have injunctive relief. In San Joaquin, etc., Irrigation Co. v. County of Stanislaus, 155 Cal., 21, 99 Pac., 365, it is held that while the “rule that a party must exhaust all his legal remedies before he is entitled to redress in a court of equity * * * has application generally to legal remedies enforceable in an action at law,” it is equally applicable “so as to require parties who are afforded by statute an opportunity to obtain adequate relief by application to a legislative or administrative municipal body, like a board of supervisors, with reference to the very matter of which they complain in an action in equity, to seek that relief from such body before being permitted to maintain an equitable action for the purpose.” See, also, Kenney v. Consumers’ Gas Co., 142 Mass., 417, 8 N. E., 138.

Due process of law is afforded the owner of property assessed for local improvement, where there is an opportunity to be heard before the body which is to make the assessment, although the decision of that body after hearing is conclusive. (Hibben v. Smith, 191 U. S., 310, 24 Sup. Ct., 88, 48 L. Ed., 195.) The same principle is announced and followed in Goodrich v. City of Detroit, 184 U. S., 432, 22 Sup. Ct., 397, 46 L. Ed., 627, and in Taylor, Aud., v. Crawford, 72 Ohio St., 560, 74 N. E., 1065, 69 L. R. A., 805, where, in the opinion, Price, J., expressed the view that in cases where there is no direct statutory provision for appeal or error a party may avail himself of the remedy provided in Section 12075, General Code (formerly Section 5848, R. S.), to enjoin “the illegal levy of taxes and assessments, or the collection of either. * * * ”

The pleadings contain no allegations disclosing that the commissioners have exceeded their constitutional or statutory authority in making such assessment, or that there was any irregularity in the proceeding which justified a court of equity in retaining jurisdiction and reapportioning the assessments. Had this been the situation in the case involved here, all the owners interested in the improvement would be necessary parties in the determination of apportionment.

The demurrer of the plaintiff to the second defense was properly overruled and the judgment of the Court of Appeals is therefore affirmed.

Judgment affirmed.

' Marshall, C. J., Wanamaker, Matthias, Day and Allen, JJ., concur.  