
    Walsh v. Barron, Treasurer.
    
      Assessment on property — For cost of local public improvements — Cannot exceed benefits accruing to property assessed — Inviolability of private property — Limitations of power of assessment — Taylor law and Section 2270 Revised Statutes.
    
    1. The fundamental principle underlying an assessment made on property for the cost and expense of a local public improvement is, that the property is specially benefited by the improvement beyond the benefits common to the public, and that a ratable assessment of the property to the extent of these benefits violates no constitutional right of the owner, and is just and proper. But it can in no case exceed the benefits without impairing the inviolability of private property.
    2. The amendment to the Taylor law by which the provision of section 2270, Revised Statutes, limiting assessments to 25 per cent of the value of the property as returned for taxation, is made not to apply to improvements under that law, can not be construed to confer an unlimited power of assessment on the municipality in proceedings under the law. The power is still subject to the general principle which underlies all assessments for local improvements; and when an assessment is made in substantial excess of the benefits, it must he set aside and held for naught, subject, however, to the right of the city to have a new assessment made on accurate principles.
    (Decided October 24, 1899.)
    Error to the Circuit Court of Franklin county.
    The action below was commenced by the treasurer of Franklin county for the collection of certain taxes and assessments that had been levied and made upon certain property of the defendant, John Walsh, which, had not been paid. Walsh filed an answer and cross petition to which a demurrer was sustained, and the case was then appealed by him to the circuit court after judgment on the demurrer. In this court the demurrer to, the answer and cross-petition was also sustained, and judgment rendered for the treasurer. The question in this case arises upon the sufficiency of this pleading, which reads as follows:
    “The defendant, John Walsh, for answer and cross-petition herein says:
    That the city of Columbus, a municipal corporation under the laws of Ohio, being a city of the first grade, second class, and Samuel B. Stone are necessary parties to the complete determination of the question involved in this action. Said defendant, John Walsh, is the owner in fee simple of lots No’s. 1 to 10 inclusive, of John Walsh’s subdivision of lot No. 25 in Solomon and George W. Beers’ subdivision of about 40 acres in quarter township 3, town 1, range 18, U. S. military lands as shown on the plat of record in plat book 5, at page 96 in the recorder’s office of Franklin county, Ohio, being the first ten parcels described in the petition herein, and he has a valid defense to plaintiff’s action as to those lots as hereinafter set forth.
    The said lots numbered from one to nine inclusive, are located on the south side of Dodridge street in said city of Columbus, and each lot abounds and abuts on said street 33 feet.
    On September 15, 1890, the council of said city of Columbus adopted a resolution that it was necessary t"o improve Dodridge street from High street to the west corporation line, by grading and constructing thereon an asphalt, stone block, Hayden block, fire clay or hard-burned brick pavement, and setting a five-inch curb of Berea and Fulton stone, and that said improvement be made under and according to an act of the General Assembly of the State of Ohio, passed May 11, 1886, entitled: “An act to provide for the improvement of streets, avenues and alleys in cities of the first grade of the second class,” commonly called the “Taylor law.” Said resolution was published in the mode provided by law.
    On November 17, 1890, said city "council passed an ordinance to provide for making said improvement of said street in the manner stated in said resolution, and for the issue of bonds to cover the cost and expense, and said cost and expense to be assessed, as provided in said act of the General Assembly, equally by the front foot on the property fronting or abutting on said improvement.
    Thereafter said city by its officers, contractors and employes did improve said street by grading and constructing thereon a Hayden block pavement and setting a five-inch curb, and after the completion of said work, on February 27, 1893, the council of said city passed an ordinance assessing the sum of five dollars and thirty-four cents and 3 and 1-10 mills upon each foot front of the several lots of land bounding or abutting upon said street and requiring that the same should be paid at the office of the treasurer of said Franklin county, Ohio, in fourteen equal annual installments with interest thereon, at 6 per cent, per annum, payable •semi-annually, and that the clerk certify said assessment to the treasurer for collection. By said ordinance the assessment on each of this defendant’s said lots numbered 1 to 9 inclusive is the sum of -1176.32.
    
      In addition to said assessment said city, at the same time, assessed upon each of said lots numbered 5 to 10 inclusive, the sum of $30 for a sewer constructed in subdistrict “I” in main sewer district No. 2.
    The several sums demanded in the petition as taxes and assessments on said lots are made up as follows:
    1. The sum of $7.44 on each lot as ordinary taxes for 1896 and tte penalty for non-payment thereof.
    2. The sum of $3.24 on each lot for ordinary taxes in 1897.
    3. The sum of $50.36 on each lot for four installments of said street assessment.
    4. The sum of $39.30 on each lot for interest to December 20, 1897, on said street assessment.
    5. The sum of $30.00 on each of said lots numbered from 5 to 10 inclusive for said sewer assessment.
    Said assessments are illegal and invalid for the reason that they exceed the value of said lots; and said respective lots could not have been sold at any time since or before said street improvement was ordered for the amount assessed upon them respectively on account thereof, and can not now be sold for the amount thereof; and they have been offered at tax sales by the treasurer and not sold because no one would pay the amount of taxes and of said assessments now due thereon for the same, and at the last sale of delinquent lands said lots were forfeited to the State of Ohio, and if said lots are now sold by order of the court in this case they will not bring the amount of taxes and assessments thereon, and this defendant will be deprived of his property for public uses without receiving any consideration therefor. This defendant did not petition for, promote or participate in the mating of said improvements or either of them.
    This defendant has offered to pay the ordinary taxes on said lots, and has paid on said street assessment an amount far in excess of what would be due had the same been limited to 25 per cent, of the value of said property, and said treasurer has always and does still refuse to receive ordinary taxes; on said lots unless this defendant will at the same time pay the said assessments.
    The said act of the General Assembly under which said street was improved and the act passed March 21, 1887, (81 Ohio Laws 176) providing that section-2270 revised statutes shall not apply to improvements made under said act of May 11,1886, are each unconstitutional in their operation and effect as applied to this defendant’s land and the improvement in question, because they operate to effect the confiscation of defendant’s property to pay for a public improvement as aforesaid, and violate article 1, section 19 of the constitution of Ohio.
    The defendant is without adequate remedy at law and will be irreparably injured and will lose his. property unless the court in the exercise of its equity-jurisdiction grants him relief.
    Wherefore said defendant prays that said assessments may be adjudged to be invalid and void and defendant’s said premises adjudged to be free from the lien thereof, and plaintiff’s petition be dismissed and for all other proper relief.
    Stone was made a party and answered. His pleading is substantially the same as to the lots in which he is interested, as that of Walsh, and need not be further noticed.
    
      
      C. T. Clark, for plaintiff in error.
    An assessment that charges upon one of the lots assessed a sum substantially in excess of the value of the special benefits to that lot is as to such lot and to the extent of such excess a taking of private property for public use without compensation and is a violation of article 1, section 19 of the constitution. Such an assessment is wholly void, no matter how regular the proceedings may have been in all respects except as to the amount assessed; and no presumption whatever can arise in its favor against the owner who has not participated in any way in causing the improvement to be made, but its collection will be enjoined on his petition therefor, because no power exists in the legslature to authorize or in the municipal authorities to make such an assessment. Chamberlain v. Cleveland, 34 Ohio St., 551; Norwood v. Baker, 172 U. S., 269.
    When notice is given of an intention to improve a street under the “Taylor Law,” or any other statute authorizing an assessement on abutting lots, for part or all of the costs, it is the privilege of the owner to remain silent, make no inquiry or protest, trusting that the municipal authorities will not exceed their constitutional powers, and if they do he is in time with his objection when they try to enforce an unconstitutional demand. Wright, Treas., v. Thomas, 26 Ohio St., 346; Columbus v. Agler, 44 Ohio St., 485.
    In the present case the allegation of the cross-petitions show that the council followed the directions of the statute literally. The Taylor Law requires the assessment to be made for the entire cost and expense upon the lots bounding and abutting on the improvement and equally by the front foot. No other mode of assessment is authorized by that statute. That statute and also the one subsequently enacted setting aside the 25 per cent, limitation have been held constitutional, 50 Ohio St., 460.
    But where exact compliance with the statute-works out an unconstitutional result it has an unconstitutional operation and effect which will never be-permitted. Bowles v. State, 37 Ohio St., 35.
    There can be no justification for any proceeding' which charges the land with an assessment greater than the, benefits. It is a clear case of appropriating private property to public use without compensation. Cooley on Taxation, 2nd Ed., p. 661; McCormack v. Patchin, 53 Mo., 36; Hammett v. Philadelphia, 65 Pa. St., 146.
    It seems, therefore, that the right of the municipality extends to the assessment of an amount equal to the special benefit, the power is limited to the exercise of that right, all exactions in excess are void for want of power. Cincinnati v. Batche, 52 Ohio St., 324; Cooley on Taxation, 606 (2nd. Ed.).
    
      Dyer & Williams and Crum, Irvine & Pretzman, for defendants in error.
    Plaintiffs in error claim that the assessment levied upon their property was in excess of the benefits derived from the improvement, and for that reason the assessment is void.
    The authorities all agree that the foundation for' special assessments for local improvements is based upon a presumed equivalent in the form of benefits. If there is any disagreement of the authorities upon the questions in this case, it is as to what tribunal shall determine the amount of benefits any particular tract of land receives from a particular improvement.
    
      In this State special assessments are authorized to be made in three ways: First, according to benefits; second, according to valuation; and, tldrd, by the front foot.
    The plan of assessment by the front foot is held by the supreme court of Ohio to be constitutional and lawful. Railway Co. v. Connelly, 10 Ohio St., 160; Upington v. Oviatt, Treas., et al., 24 Ohio St., 232; Findlay v. Frey, 51 Ohio St., 402; Cincinnati v. Batche et al., 52 Ohio St., 325.
    The assessment, by whatever plan it is levied, must “be uniform. Jaeger v. Burr, 36 Ohio St., 164.
    It is not possible in making special assessments to preserve “uniformity” and at the same time arrive at the actual benefits conferred.
    The- rule of Cooley on Taxation (2d. ed.) 640, has always been the law in Ohio. When the legislature, or the municipal council to whom the legislature has delegated its authority, orders or determines that the cost of a local improvement shall be assessed by the front foot upon the property fronting and abutting thereon, that determination constitutes the judgment of the legislature or council that the property upon which the assessment is directed to be levied is specially benefited to the extent of the assessment to be levied. Such action or determination by the legislature, or council is final and will not be reviewed. Crawford v. Cincinnati et al., 11 Dec. Re., 378; Cincinnati v. Batche et al., 52 Ohio St., 325; Chamberlain v. Cleveland, 34 Ohio St., 552.
    The state and federal courts have always adhered to this rule, and still adhere to it, unless under such peculiar state of facts as existed in the case of the village of Norwood v. Baker, 172 U. S., 269; a different rule was adopted. That was an extreme case.
    We say that the rules laid down in the Norwood case do not apply to improvements like the one in the case at bar under a particular act of the legislature providing for the same.
    Such assessments have been held to be lawful by the supreme court of the United States in cases which the court in the Norwood case expressly decline to overrule. Spencer v. Merchant, 125 U. S., 345; Williams v. Eggleston, 170 U. S., 340; Parsons v. The District of Columbia, 170 U. S., 45.
    The question involved in the case of Norwood v. Baker was essentially one of eminent domain. The question involved in the case at bar is one of taxation. The difference between these two is pointed out in Scovil v. Cleveland, 1 Ohio St., 126, upon the authority of which the circuit court relied, in part, in sustaining the judgment of the court of common pleas.
    The case of Norwood v. Baker was considered by this court in Hutchinson v. The City of Columbus, recently decided (60 Ohio St., 584, unreported). The court must have concluded that it did not apply to a case like the one at bar, otherwise the judgment must have been for the plaintiff in error instead of the defendant in error.
   Minshall, J.

The question in this case relates to the validity of an assessment made upon property for the cost of an improvement. From the averments of his answer and cross-petition it appears that the assessment made upon each lot of Walsh is in excess of its entire value. That each lot would not before, or since, the improvement, have sold for enough to pay the assessment upon it. That they have, in fact, been offered and returned not sold and forfeited to the State. He in no way promoted the proceeding and is not, therefore, precluded from making the question as to the validity of the assessment.

Upon the admitted averments of the pleading the naked question here presented is, whether an assessment may be made upon the property of an owner for the cost of a public improvement, that is not only in excess of the benefits conferred on it, but of its-value with the benefits added by the improvement. We do not think this can be done where the party complaining in no way promoted the improvement. By no refinement of reasoning can it be construed to be anything else than the taking of private property for public use without compensation. According to the best considered of the modern cases and the most reliable authorities, an assessment, being sustainable only on the theory of special benefits conferred on the land by the improvement over those received by the general public, is necessarily limited to the value of the benefits so conferred. The value of the entire benefits so conferred may be assessed upon the land for the cost of the improvement; more,, however, cannot be exacted, without impairing the inviolabiilty of private property, guaranteed by the constitution, or in other, if not more appropriate words, confiscating it.

In a recent case decided by the supreme court of the United States, Norwood v. Baker, 172 U. S., 269, 279, it said in the opinion: “The exaction from the owner of private property of the cost of a public improvement in substantial excess of the benefits accruing to him is, to the extent of such excess, a taking under the guise of taxation, of private property for public use without compensation. We say “substantial excess,” because exact equality of taxation is not always attainable, and for that reason the excess of cost over specific benefits, unless it be of a material character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforcement of a special assessment.”' Judge Dillon, after referring to the earlier cases which generally concede to the legislature the-power to determine what property is benefited and the extent to which it might be assessed, and hold that the courts have no control over the discretion of the legislature in this regard, says: “But since the-period when express provisions have been made in many of the St,ate constitutions, requiring uniformity and equality of taxation, several courts of great respectability, either by force of this requirement or in the spirit of it, and perceiving that special ienefits actually received by each parcel of contributing property, was the only principle on which such assessments can justly rest, and that any other rule is unequal, oppressive, and arbitrary, have denied the unlimited scope of legislative discretion and power, and asserted what must on principle be regarded as the just and reasonable doctrine, that the cost of a local improvement can be assessed upon particular property only to the extent that it is specially benefited; and since the excess beyond that is a benefit to the municipality at large, it must be borne by the general treasury.” The cases are cited in the note of the learned author. See, also, Cooley on Taxation, (2d ed.) 661. Chamberlain v. Cleveland, 34 Ohio St., 557.

No one of the states has, by its constitution, more carefully guarded the powers of taxation and assessment than Ohio. Indeed there is in our constitution a special mandate to the legislature to restrict these powers as conferred on municipalities so as to prevent their abuse. Article 13, section 6.

The improvement.in this case was made under what is known as the Taylor law, applicable only to cities of the grade of the class to which Columbus belongs. There existed at the time a general provision, section 2270, Revised Statutes, which limited assessments made by cities of the grade of Columbus to 25 per cent, of the value of the property as returned for taxation. By an amendment made shortly after the adoption of the Taylor law, it was enacted that this section, limiting assessments, should not apply to improvements made under that law. The law with the amendment was held valid in Parsons v. Columbus, 50 Ohio St., 460. Had the application of section 2270 to the Taylor law not been removed, the question presented in this case could hardly have arisen, or would have been of such a shadowy character as to be beyond judicial cognizance. Whether it was wise in the legislature to have removed the application of this section to the Taylor law, is ho part of our duty to consider. We will not, however, presume that the legislature intended to adopt an invalid law, and will give it such a construction as will support it, if that can reasonably be done consistently with its provisions. It is fair to presume that in removing the limitation of this section, it was not the intention of the legislature to permit the city to disregard the fundamental principle which limits an assessment for benefits to the extent of the benefits conferred by the improvement on the land. There is no provision of the law which would indicate this. It must, therefore, be held that all assessments under this law must be limited to the benefits conferred, or, it must follow that the legislature designed a palpable invasion of the rights of private property, which is not admissable. In other words, in authorizing an assessment to pay for improvements under the law, the legislature had special reference to such assessments as would be no more than the proper proportion of the costs based on the benefits received.

The judgment must be reversed and cause remanded for further proceeding. And here it is proper to say, that if the facts stated in the pleading of Walsh are found to be true, the city is entitled to have a sum assessed upon each lot substantially equivalent to the special benefits conferred on it by the improvement, unless such sum has already been paid. In ascertaining this sum, the special benefits conferred on each lot as distinguished from those common to the public, are alone to be considered.

Judgment reversed.  