
    The City of Cleveland v. Henry Wick.
    An assessment upon lands fronting on a street, to reimburse tbe amount of compensation paid the owner for his other land taken for the use of the street, is authorized by the statute (S. & S. Stat. 834, sec. 1), and is not in. violation of the constitutional provision which guarantees to owners of land so taken, a full compensation “without deduction for benefits.”
    Error to the district court of Cuyahoga county.
    The city council of Cleveland, having established a new street, over the lands of Wick, and having regularly condemned and paid him a full compensation for his land so taken, assessed' a tax upon all lands fronting oh the street, including other lands of Wick, to-reimburse the expenditure so made. The tax remaining unpaid, it was placed upon the county duplicate for collection, but not till one-year after the time prescribed .-by statute. Wick then brought his-action to enjoin the collection of the tax, both on the ground that, it was not placed upon the duplicate at the proper time, and also-because, as he claims, it was assessed in violation of section 19, of article 1, of the state constitution, which declares that the compensation, to be paid to a party for his land so taken, “ shall be assessed by a jury, without deduction for benefits to any property of the owner.”
    304] *The case was tried in the common pleas, and came by appeal to the district court, whore upon final hearing a perpetual injunction against the collection of the tax was decreed.
    To reverse this decree the city now prosecutes its petition in error here.
    
      Brinsmade, and Prentiss & Baldwin, for plaintiffs in error:
    A person whose property has been taken under the law, and a-, full compensation been awarded to him without deduction for benefits, can not claim exemption as. a tax-payer in common with other tax-payers from paying for the damage. If he. could, it would bean exception to all other cases, and an attack upon the whole system prevailing here, as well as elsewhere, since the foundation of the government.
    Wick has received his full damages — every dollar; there is no-dispute about this. He happens to own other land abutting on this. •street; he is taxed as all others are abutting on the street. Is there anything wrong, singular, or exceptional in this?
    Nothing can be claimed in favor of defendant in error under section 19, of article 1, as that section is a direction only how the jury ■shall act in making the assessment of the compensation ; they shall .assess it “without deduction for benefits to any property of the owner.” They have done so, and "Wick has received it, as already ■stated. There this provision ends. The subject of taxation or assessment now begins its operation, a distinct and unconnected topic in respect to which the 19th section does not pretend to deal, and ■to which it does not in the remotest manner allude. We must look to other parts of the constitution for this and the rules by which it is regulated. The Supreme Court have placed this matter so that it is no longer an open question in this state; not only is taxation in the ordinary sense which is referred to in section 2, of article 12, hut taxation by the way of assessment for benefit so called, is placed •upon ground not open to'attack. The 6th section of article 13 expressly recognizes this latter as a municipal power. If, then, the whole system of assessment is unassailable, how, under the facts in this case, can it successfully be assailed in any detail ?
    *See Creighton v. Scott, 14 Ohio St. 438; Northern Indiana R. R. Co. v. Connelly, 10 Ohio St. 159; [305 Ernst v. Kunkle, 5 Ohio St. 20; Hill v. Higdon, Ib. 243, 246; Reeves v. Treasurer of Wood County, 8 Ohio St. 333; Cass v. Dillon, 2 Ohio St. 624; Cincinnati v. Gwynne, 10 Ohio St. 192; Cincinnati v. Bank United States, 14 Ohio, 605 ; Corwin v. Cowan, 12 Ohio St. 629; The State v. Comm’rs of Warren County, 17 Ohio St. 558; Scoville v. City of Cleveland, 1 Ohio St. 133; Bonsal v. Lebanon, 19 Ohio, 418; Symonds v. Cincinnati, 14 Ohio, 147; The People v. Mayor, etc., of Brooklyn, 4 Comst. 419; McMicken v. Cincinnati, 4 Ohio St. 394; Crawford v. Delaware, 7 Ohio St. 459; 47 Ohio L. L. 204, sec. 2; 44 Ohio L. L. 213, 214; 43 Ohio L. L. 173; 37 Ohio L. L. 298; 36 Ohio L. L. 255; 35 Ohio L. L. 40, sec. 28; Sedgwick on Stat. and Const. Law, 501-504, 554; Nichols v. City of Bridgeport, 23 Conn. 189; McMasters v. Commonwealth, 3 Watts, 292; Williams v. Mayor of Detroit, 2 Mich. 560; Mayor of New York v. Livingston, 8 Wend. 85-101; Iowa Constitution of 1857, art. 1, sec. 18; Iowa Code and Revision, Towns and Cities Act.
    As to the objection by defendant in error that this assessment was not put on the right duplicate, it does not savor so much of a desire for justice as of an apprehension of it; and if he escaped? taxation for one year, it is no reason why justice, though tardy, should not be allowed to be sure. If the city clerk did not act as-seasonably as he should, or if some delay arose for the purpose of deliberate action, it furnishes no reason why the assessment should not be collected. See S. & C. 108, sec. 52; 1522, sec. 87, last clause.
    
      R. P. Ranney, for defendant in error, in oral argument cited Hill v. Higdon, 5 Ohio St. 243; Creighton v. Scott, 14 Ohio St. 440; 2. Const. Debates, 178; Sedgwick on Stat., etc. 492; Nichols v. Bridgeport, 23 Conn. 190; Const., art. 1, sec. 19; art. 13, sec. 5.
    
      F. T. Backus, also for defendant in error:
    The owner of private property taken for public use can not be' cheated out of the benefit of that provision of the constitution which. 306] says: “When private property shall be taken *for public use,, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.'"
    
    Hero the compensation was first properly assessed, and paid over to the owner. About two years afterward the municipal body which, exercising the right of eminent domain, under this nineteenth section of the bill of rights, had taken this property for public use, turn round and assess a special tax on the property of the owner not taken, but adjoining it, to reimburse the public for the-money the public, that is, this municipal corporation, had thus paid over to the owner for the property so taken for the public use. If this is not “ fulfilling the promise of the constitution to the ear, but breaking it to the hope,” then no case can be imagined where such is the fact. If this interpretation of the constitution does not render the provision in question a sheer farce, a wretched mockery, then-form is substance and shadow solidity. The present constitution, it is true, recognizes the practice, pursued by municipal bodies, of laying special assessments upon property in the vicinity of local improvements to defray the expense of such improvements. And with a great deal of hesitation at first, our Supreme Court held that this recognition rendered inapplicable to these special assessments, the provision in the second section of the twelfth article of the constitution, “ that all property, real and personal, shall be taxed by a uniform rule,” — at least that this provision was not inconsistent with the validity of the practice so recognized in another part of that instrument. But this court has never yet held that this recognition of the practice referred to has the effect to either nullify or modify the provisions of the constitution above cited, requiring compensation to be made for private property taken for public use, “ without deduction for benefits to any property of the owner.”
    
    Now, it is perfectly evident that the sole foundation upon which this right to make special local assessments upon a paid only of the property embraced in the municipal organization which constitutes the public for whose use local improvements are made, is the peculiar benefit conferred upon such *local property by the local [307 improvement made. This is shown by the case in 4 Comstock, cited by counsel for plaintiff in error, and by the case of The Mayor of New York v. Livingston, cited by the court in 4 Comstock.
    The defendant in error seeks no exemption from the common burdetis of taxation, nor from extraordinary burdens of that kind that aro in accordance with the constitution. Had this special tax been levied on the whole public, the city of Cleveland, for whose use his property was taken, he could, of course, have made no objection to the payment of his share of the tax; but when it is sought to levy it upon him as the owner of property adjacent to that taken, on the sole ground that such property is benefited by the improvement, he invokes the shield which the constitution has thrown around him.
   Welch, J.

If this tax was authorized by law, as soon as assessed it became a debt; and the mere delay to place it upon the duplicate, or to use other means for its collection, did not extinguish the debt. Counsel do not, perhaps, mean seriously to dispute this proposition. But they contend, with great earnestness and much ability, that the tax is not authorized by law. Is this latter position maintainable ?

It- is not denied that the tax was assessed in conformity to the statute. Swan & Sayler, 834, sec. 1. But it is said that this statute is contrary to the constitution, in so far, at least, as it imposes upon a party any assessment to reimburse the compensation paid for his own land. It thus does indirectly, it is said, what can not be done directly. It pays a price for the land, and then takes it back. It accords the owner of land taken full compensation, “without deduction for benefits,” but it immediately assesses him an equal amount for the same benefits. Thus, it is argued, the •constitutional provision which guarantees to the owner of land taken a full compensation, “ without deduction for benefits,” is ■evaded, or nullified, because the same result is reached, whether the value of the benefits is deducted in the first instance, or is afterward reclaimed in the shape of an assessment; the only difference to the land-owner being the difference between two toords —“assessment” and “deduction.”

308] *But there are two provisions of the constitution to be considered in connection with the question raised. One gives this power of condemnation,.with the restriction that it shall be exercised- only upon payment of a full compensation. The other gives the power of taxation by “ assessment.” No matter if the latter power is given by more implication (art. 13, sec. 6), or is only to be found in a general grant of legislative power, it is none the less certainly given, and is none the less sacredly to be maintained. Nothing is better settled under the provisions of the new constitution than the existence of this power of local assessment. Hill v. Higdon, 5 Ohio St. 243; Reeves v. Treasurer, 8 Ib. 333 ; Zanesville v. Richards, 5 Ib. 589. It is a distinct and separate power, wholly independent of the provision as to condemnation of land for public uses, or the price which shall be paid to the owner. If practicable, we must so construe the constitution as to leave both these provisions — that which guarantees a full compensation without deduction for benefits, and that which gives the power of local taxation— standing in full force, each unintrenched upon by the-other.

It is not denied that at the time of the adoption of the present constitution, this power of local assessment existed to the extent claimed here. See 18 Ohio, 518; 1 Ohio St. 127. If it does not •exist to the same extent now, it is because it is limited by the provision in regard to compensation. The argument seems to be, that it is so far limited by that provision as to deny the right to assess a party for that part of the cost of an.improvement which consists of the price of his own land. But if the argument is good to that extent, it is good for much more, and would, if carried to| its legitimate result, practically defeat the whole power of local| .assessments. Itwould be impracticable to discriminate in making! such assessments, between the expenditure incurred in paying for the party’s own land and the cost of other lands, or between the expenditure for his land and any other expenses of the improvement. And if it were practicable, it would be manifestly unjust to "the owners of other lands subject to assessment.

Suppose a new street to be laid through the lands of A and B, taking an acre from each. Neither, it is said, can be taxed to *pay for his own acre, but each can be taxed to pay for the [309 .acre of the other. What is the difference, whether each is taxed for half the cost ofthe two acres, or for the whole of the cost of one acre. If there were ten proprietors instead of two, the difference would be between one-tenth of ten, and one-tenth of nine. If one of the ten happened, unfortunately, to abut on the street, so that none of his land was taken, he would have to pay for all the land taken from the nine, although they got full prices for their land, “irrespective of benefits ” which they enjoy in common with him. One party might own nearly all the land benefited by fhe improvement, and yet, because a square rod of his land is taken, and fully paid for, he goes scot free, enjoying most of the benefits, and the whole burden falls upon the others. It is easy to see that no construction leading to such results can be admitted, and that if you deny the power to assess a party to pay for his own land, you logically and necessarily deny the power to make any assessment for land taken.

But the argument goes still further, and is, in effect, that you can mot assess a party whose land is taken, for any part of the cost of the improvement, whether for the price of land or for other expenses. The assessment, it is contended, is a kind of offset or equivalent, for the benefit rendered by the improvement — a mode •of deduction for benefits — and therefore you are forbidden to levy .any assessment for the improvement against a party whose land has been taken. ' The constitution guarantees him two things, (1) a full price for his land, and (2) that he shall be charged nothing for benefits. What benefits? The benefits from the whole improvement. The benefits are to him a unit, and you can no more .assess him for one part of the expense than for another. If you .assess him for the improvement — for any part of the expense, you assess him for the benefits. Counsel say that to “ assess ” him for the benefits, is the same as to “ deduct ” them. As to him “ deduction ” and “ assessment ” are convertible term's. Their reading of the provision in question is, that a party whose land is taken for public use, shall be paid a full compensation therefor, without “ assessment for benefits.”

If the argument is good for anything, it proves that no assess-310] ment *can be made, for any public improvement, against parties whose lands have been condemned for its use, and practically, the whole power of local assessment is defeated by this provision.

What was the object of the provision in question ? What was the evil intended to be remedied by it? Surely it was no part of its object to remedy any supposed inequality, or abuse of the power of local taxation. No such evil was complained of. The mischief which existed under the old constitution was, that the benefits which were common to his neighbors, without charge, were deducted from the price paid to the owner of land taken. The evil might well be denominated inequality of benefits and burdens among adjoining land-owners. You paid for the owner’s land in privileges, and left him still liable, equally with his neighbors whose lands were untaken, to any and all local assessments that might afterward be imposed. This was unequal, and therefore deemed unjust.' Experience proved, moreover, that it led to much abuse of the power of condemnation. A full remedy is found for these evils in the provision in question, without at all making it to interfere with the power of assessment'. Construed thus, it is in perfect accordance with the leading principle of taxation in the new constitution — uniformity and equality of burdens. It simply guarantees to the owner of iand condemned a full price. When that is paid, 'be stands on a perfect equality with all other owners of adjoining lands, equally liable, as he ought to be, to be taxed upon his other lands with them. He has the full price of his land in his pocket, and is an equal participant with them in benefits to adjoining lands. To throw the whole burden upon the others, in such a case, would be. to do them the precise injustice which was done to him under the old constitution. To do so, would be to avoid one evil only to run into another. It would be to avoid the evil of withholding from him a full and fair price for his lands, only to run into the equal evil of paying him two prices for it, the second price being at the expense of his neighbors.

311] *We think the assessment was legally made, and that the district court erred in holding otherwise.

Judgment reversed.

Day, C. J., and Brinkerhoff, Scott, and White, JJ., concurred.  