
    Lichtenwalter v. City of Akron et al.
    
      Municipal corporations — Special assessments — Sections 3812 and 3882, General Code — “Draining," “sewers" and “drains” not synonymous — Storm sewer assessment cannot be levied under street improvement proceeding, when.
    
    1. The word “draining,” as used in Section 3812, General Code, is not synonymous with the words “sewers” and “drains,” as used in the same section, or in Section 3882, General Code.
    2. The word “draining,” used in a resolution of necessity and in subsequent legislation enacted by a city council for the improvement of a street, is not broad enough to clothe the city with power to assess, upon abutting property, any part of the construction of a storm water sewer or drain in said street.
    (Decided March 21, 1927.)
    Appeal: Court of Appeals for Summit county.
    
      Messrs. Sheck, Stevens é Hargreaves, for plaintiff.
    
      Mr. H. M. Hagelbarger, director of law, Mr. W. A. Kelly, and Mr. W. H. Knowlton, for defendants.
   Pardee, J.

The plaintiff, an abutting property owner on Spicer street in the city of Akron, for himself and other abutting owners on said street, brought a suit in equity in the court of common pleas of Summit county to enjoin the collection of certain special assessments levied upon their property for the purpose of paying for certain improvements made by the city in said street. The lower court, upon the hearing, found that some of the assessment was improper, and enjoined the collection of the same.

The city officials, not being satisfied with the judgment of that court, have appealed, and the case was heard in this court upon a transcript of the evidence taken in that court and some additional evidence.

The pertinent part of the resolution of necessity, duly passed by the council of the city and approved by the mayor, is in the following words, to wit:

“Section 1. That it is necessary to improve Spicer street from Bast Buchtel avenue to East Exchange street, by grading, draining, curbing, resetting curb, redressing curb, paving, repaving, resurfacing, constructing brick gutters, and constructing sewer laterals and water service connections, which is hereby declared to be conducive to the public health, convenience and welfare, and that the plans, specifications, estimates and profiles of said proposed improvement, on file in the office of the director of public service, are hereby approved.”

And the notice served upon the property owners, and the ordinance to proceed, used the same language in describing the improvement to be made.

Later a resolution was passed appointing an assessing board to estimate the assessment on each lot and parcel of land to be charged therewith, in proportion to benefits, and later still an ordinance was passed confirming the assessments so made, and a levy was made upon the lots and lands in accordance therewith.

At the time this legislation was passed, there was a sewer in the center of such street, between the termini of said improvement, and the street had been improved by pavement, gutters, and curbs.

The plaintiff claims that, inasmuch as the resolution of necessity, the notice served upon the property owners, and the subsequent proceedings of the council, did not provide for or relate to the construction of a sewer or drain in said street, the assessment levied upon said lots and lands for so much of the cost of said improvement as related to the storm water sewer built in said street was illegal and void; the city not having made an assessment for any part of the sewer as a sanitary one.

The testimony of the witnesses for the plaintiff, resident upon the street, shows that the sewer in the street was adequate in size for all sanitary purposes, and that it was also adequate for the storm water incident to Spicer street, had not the area drained been increased so as to include about three times the natural area, which, of course, necessitated a larger sewer.

The evidence of the city employes who testified in regard to the adequacy of the old sewer in Spicer street shows that their knowledge in regard to the physical condition of the property adjacent to Spicer street, and the needs of Spicer street, was indefinite and uncertain, and does not counterbalance the positive testimony given for the plaintiff in regard thereto.

The evidence further shows that the cost of storm sewers then in process of construction in the vicinity of Spicer street was not assessed upon private property, except for the one in Spicer street, and why this discrimination was made against Spicer street property owners is not disclosed. The record also shows that the resolution of necessity was introduced and passed in council upon the same day; this is evidence that a matter of great importance to the property owners upon the street, as well as to the city at large, was not properly considered and understood and must have been passed solely upon the recommendation of employes of the city, who would not be expected to have delegated to them such important matters. Of course, a court cannot impeach the action of city councils in so doing, but it is a matter of common knowledge that city legislation is often so enacted, and for that reason courts should carefully consider questions of this kind when presented to them for determination, and see, not only that the rights of the city are protected, but that the rights of the individual citizen are protected as well.

As was said in Kellogg v. Larkin, 3 Pin. (Wis.), 123, 56 Am. Dec., 164:

“He is the safest magistrate who is more watchful over the rights of the individual than over the convenience of the public, as that is the best government which guards more vigilantly the freedom of the subject than the rights of the state.”

In the resolution of necessity, upon which the rights of the city to make assessment are based, drainage is expressly provided for, but nowhere in the legislation is there any provision or reference of any kind made for the construction of either a sewer or drains. The state, in the exercise of its power, by Section 3812, General Code, has granted to cities the right to make certain street improvements, and in certain cases and in certain ways the cost thereof may be assessed upon the abutting property. This is a grant of power which cannot be enlarged or extended by the city, and, in order to make valid assessments, the city is required to keep within the jurisdiction thus conferred. When the right thus given to the city as to levying assessments is considered, the proceedings should be construed strictly in favor of the property owner assessed.

By this section, the city may levy, within certain limits, upon specially benefited property, any part of the entire cost and expense connected with the improvement of a street by grading, draining, curbing, paving, repaving, constructing sewers, drams, and by many other ways mentioned therein.

The resolution of necessity passed by the council limited the improvement, so far as drainage is concerned, to draining Spicer street, and did not attempt to provide drainage for a district, as was done by the city officials. The resolution did not mention or refer in any way to the construction of either a sewer or drain, or a combination of both, as it might have done.

It is a matter of common knowledge that a street, or any sort of property, may be drained without constructing a sewer or a drain, and the Legislature must have recognized this fact in its grant of power, as shown by the wording of Section 3812. This section specifically sets forth in great detail the ways by which a street may be improved, either by draining or by the construction of sewers, drains, etc. If the lawmaking body thought that the power granted to a city for the improvement of a street by draining was broad enough to include the improvement of the street by the construction of sewers or drains, why did it include these later words? And why did the Legislature also enact Section 3871 et seq., inf raí

Both in the case of Roebling v. Cincinnati, 102 Ohio St., 460, 132 N. E., 60, and the case of Albrecht v. City of Cincinnati, 104 Ohio St., 266, 135 N. E., 541, the resolution of necessity contained the word “drains,” but did not contain the word “sewers,” or “draining,” and in each of these cases the court held that the city could not build a sanitary sewer and charge any part of the cost against the property owners, as the words “sewers” and “drains” were not synonymous terms. So, in the instant case, the words “draining” and “drains” and “sewers” are not synonymous terms.

In the instant case the council, by leaving out of the resolution and ordinances any reference to sewers or drains, and expressly providing therein for the construction of sewer laterals, must have recognized that the street was provided with a sewer of adequate size for all necessary purposes.

As was said by Judge Hough in the Roebling case, supra, page 473, (132 N. E., 64):

“An important and expensive improvement, such as a sanitary sewer, certainly cannot be provided for without invoking power so to do in the manner provided by law, and it will not do to claim that right, or attempt to invoke that power, through the guise or deceit of an improper name.”

So, in the instant case, an important and expensive improvement such as a storm sewer can not be built without invoking the power granted to do so, and it certainly cannot be done under an alias or fictitious name.

But there is another objection to the assessment as levied by the city for the construction of the storm water sewer. As hereinbefore indicated, we have found that Spicer street was supplied with a sewer of adequate size, both for sanitary and storm water purposes. This being so, the city was incompetent to levy any assessment upon the property for such purpose, as it did not need any drainage; all of the property being provided therewith. Section 3819, General Code.

But there is another serious objection to the making of an assessment for the construction of the storm water sewer.

By Section 3871, General Code, a city, in addition to the power given to it by Section 3812, may provide a system of sewerage for such municipal corporation or a part thereof. By Section 3872 the system so devised shall be such that the city may be divided into districts and each district have a main sewer. Section 3873 makes provision for additional details of the plan, and Sections 3874 and 3875 provide for notice of the plan and for making objections to the same. Section 3878 provides for the passage of a resolution declaring the necessity for constructing all or a part of the sewers provided for in the plan, and specifies that notice thereof shall be given, and. the next section makes provision for an ordinance to proceed.

By Section 3882 the General Assembly has made express provision for the construction of main drains and branch drains, and by Section 3871 et seq. the words “sewers” and “drains” seem to be used synonymously. Section 3882 is as follows:

“If in its opinion expedient, the council may provide for the construction of main drains and branch drains connecting therewith without previously adopting any plan of sewerage or division of the territory of the municipal corporation or any part thereof, into districts, and may assess the cost and expense thereof upon such lots or lands as shall be designated in the ordinance to improve, or they may be paid from the sewer fund, or by the municipal corporation at large, as council determines, and such proceedings shall be had in respect to such improvements and assessments as are provided for herein, for the construction of main or branch sewers according to a previously adopted plan.”

It therefore appears from the evidence offered in this case that the sewer work done upon Spicer street was the kind contemplated in this section, and that the legislation enacted by the city council was.not passed in conformity therewith, as it did not declare the necessity of constructing a sewer or drain of any hind.

For the reasons stated, the assessments levied upon the owners of property upon Spicer street, for the sewer and the cement base for the pavement, are found to be illegal and void, and are perpetually enjoined, and a decree may be drawn as in the court below.

Injunction allowed.

Washburn, P. J., and Funk, J., concur.  