
    VALIDITY OF A SEWER. ASSESSMENT.
    Common Pleas Court of Montgomery County..
    John W. King v. The City of Dayton et al. 
    
    Decided, January Term, 1907.
    
      Sewers and Sewer Districts — Notice to Property Owner of Intention To Construct Sewer — Improvement Ordinance — Law Governing — • Surface Drainage — Does not Exempt from Sewer Assessment, When —Expenses Properly Included in Assessment — Benefits—Injunction-Discretion of Council — Municipal Corporations — Section 1536-250.
    
    1. The intention of council in passing an ordinance is to be first looked to in the interpretation of its terms.
    2. The necessity of a sewer improvement is a question for council to determine in the exercise not only of the taxing power, but also of the police power delegated to it by the code. This authority combines discretion.
    3. Notice to a property owner within the district is sufficient to apprise. him that his property is to be assessed, where the description embodied in the notice embraces the entire district in which his property is located.
    4. In an improvement ordinance passed subsequent to March 25, 1904, provision- was properly made for an assessment under Section 1536-250, notwithstanding the adoption of the resolution of necessity was prior to that date.
    5. The mere fact that property is supplied with adequate surface drainage is not sufficient to exempt it from a proper sewer assessment.
    
      
       Affirmed by, the Circuit Court, King v. City of Dayton, 10 C. C.— N. S., -
    
   Snediker, J.

This action is brought to enjoin the collection of an alleged illegal sewer assessment. Without reciting the pleadings or detailing the evidence, we proceed at once to a discussion of the issues made and of the points relied on by plaintiff to sustain his contention that the assessment should be enjoined. These are taken up in the order which we think best.

First. Plaintiff complains because Ms land is not a part of the district improved and in which the said sewer was located.

There is no question made in the case as to the plaintiff’s property being located in the sewer districts established by council and within which this improvement was made. The point raised by the plaintiff is that by the character of its proceedings council changed the boundaries of Sewer Districts Nos. 6 and 7, and that plaintiff is not within the territory outlined by such change. Did council change the district?

Section 77 of the code provides * * * council of a city or village may provide a system of sewerage for such municipal corporation or any part thereof. It shall be the duty of the engineer of such city or village, or some person employed by the municipality, to devise and form, or cause to be devised and formed, a plan of sewerage of the whole city or village, or such part thereof as may be designated by council, and such plant shall be devised with regard to the present and prospective needs and interests of the whole city or village, which plans shall be by him reported to council for confirmation.

Section 78 of the code provides the plans so devised shall be formed with a view of the division of the corporation into as many sewer districts as may be deemed necessary for securing this sewerage. Each of the districts shall be designated by a name and number and shall consist of one or more main sewers, with the necessary branch or connecting sewers, the main sewers having their outlet in a river or other proper place. The districts shall be so arranged as to be independent of each other, so far as practicable.

It appears from the testimony of Mr. Russell that council had heretofore, in pursuance of these sections, devised and formed a system ' of sewerage for this city, and designated as sewer districts Nos. 6 and 7, comprising, as we understand it, all of the lots and lands lying west of the Miami river and south of "Wolf creek. When it came to consider the question of improvement provided for in this case council passed the following resolution .-

‘ ‘ Resolved, by the council of the city of Dayton, state of Ohio: That the city civil engineer of said city is hereby directed to devise and form plans for the sewerage of that part of the city of Dayton lying west of the Great Miami river and south of Wolf creek and known as sewer districts Nos. 6 and 7, and that he report said plan to council at as early a day as possible for its consideration. The sewers shall be for sanitary sewers, except at the outlet along Broadway shall be sufficient in size to carry bo°th sanitary sewerage and storm water.”

Subsequently, on August 24,1903, a report of the civil engineer was made in these terms:

“City Council:
“Gentlemen — In compliance with resolution passed by city council July 10, 1903, 1 herewith respectfully submit plans, profiles and estimates for the construction of sanitary main and lateral sewers in part of sewer districts Nos. 6 and 7, being all the territory that is bounded on the north by Wolf creek, on the east by the Great Miami river, on the south by'Concord and on the west by Western avenue,” etc.

The clerk of council had given notice by publication on October 17th, 1903, which is as follows:

‘ ‘ Notice. — Notice is hereby given by the council of the city of Dayton, state of Ohio, that plans, profiles and estimates for the construction of sanitary main and lateral sewers in parts of sewer districts Nos. 6 and 7 of said city,” etc.

A resolution was, on October 19, 1903, passed by council entitled “Resolution approving plans for sewerage for sewer districts Nos. 6 and 7, directing clerk to file same with the city auditor, and setting out that—

“Whereas, by direction of council, a plan of sewerage for sewer districts Nos. 6 and 7, etc. * * *
“That said plans of sewerage for said sewer districts Nos. 6 and 7 and storm water sewer are hereby approved and adopted. And the clerk of the council is authorized to file at once, with his certificate, said plans in the office of the city auditor.”

On November 2d, 1903, the engineer made a report as follows:

‘ ‘ To the City Council :
“Gentlemen■ — In compliance with resolution passed by city council October 19, 1903, I herewith respectfully submit an estimate for the construction of sanitary main and lateral sewers in parts of sewer districts Nos. 6 and 7, being all the territory that is bounded’on the north by Wolf creek, on the east by the Great Miami river,” etc.

Council then passed this resolution of necessity:

“Be it resolved by the council of the city of Dayton, state of Ohio, three-fourths of the whole number of members thereto concurring:
“That it is necessary to construct all of the sewers provided for in the general plan for a system of sewerage for sewer districts Nos. 6 and 7 of said the city of Dayton, which general plan was adopted by council on the 19th day of October, 1903, and is on file in the office of the auditor of said city and that the improvement provided for in said general plan, which it is hereby determined to construct, is included within that portion of the said city bounded and described as follows: being all of that territory in said city which is bounded on the north by Wolf creek, on the east by the Great Miami river, on the south by Concord and Albany streets and on -the west by Western avenue, which said territory is known as sewer districts Nos. 6 and 7, ’ ’ etc.

On May 2, 1904, an ordinance determining to proceed was passed:

“An ordinance, No. 6133, determining to proceed with the construction of sewers in sewer districts Nos. 6 and 7 in the city,of Dayton, state of Ohio.
“Be-it ordained by the council of the city of Dayton, state of Ohio, three-fourths of all the members elected thereto concurring :
“Section 1. That it is hereby determined to proceed with the construction of a system of sewers in sewer districts Nos. 6 and 7 of said city, which districts are described as follows: being all of that territory, in said city, which is bounded on the north by Wolf creek, on the east by the Great Miami river, on the south by Concord and Albany streets and on the west by Western avenue, pursuant to a resolution of council passed on November 16th, 1903, and in ’ accordance with the plans and specifications heretofore prepared by the* engineer of said city for a system of sewerage in’ said sewer districts Nos. 6 and 7, adopted by said council on October 19th, 1903, and now on file in the office of" the auditor of said city; and it is hereby determined that said sewers shall be on vitrified clay pipe for the main and lateral sewers and of concrete for the combined sanitary and stone water sewer provided for on Broadway street of said city,” etc.

On June 13th, 1904, council appointed an estimating board, consisting of Herman H. Bierbaum, Peter Lehman and F. A. Z. Kumler. The report of the estimating board was made and a resolution adopting the same was passed by council on November 14, 1904, directing notice, as follows:

“Resolved, that the clerk of council is hereby authorized and directed to give, according to law, the .notice required by law of the filing of the estimated assessment of the cost and expense of the construction of sanitary sewers in sewer districts Nos. 6 and 7 reported by the estimating board heretofore appointed for that purpose.”

The notice given reads:

“Notice is hereby given that the'estimated assessment of the cost of construction of sanitary sewers in sewer districts Nos. 6 and 7 of the city of Dayton, state of Ohio, is on file in the office of the clerk of council for inspection by all persons interested.
“C. Preston Floyd, Cleric of Cotmcil.”

Subsequently, on January 3, 1906, an ordinance to levy special assessments to pay for the sewer was passed, as follows:

“An ordinance, No. 6436, to levy special assessments to pay for the construction of sanitary sewers in sewer districts Nos. 6 and 7J
“ Whereas, it is deemed expedient by the council of the city of Dayton, state of Ohio, to assess the real estate in sewer districts Nos. 6 and 7 in said city to pay the portion of the cost and expense of constructing sanitary sewers in said districts,” etc.
“Be it ordained by the council of the city of Dayton, state of Ohio, two-thirds of all the members elected thereto concurring:
“Section 1. That the estimated assessment of the cost and expenses of constructing sanitary sewers in sewer districts Nos. 6 and 7 in said city, less the l-50th part thereof, and the costs of intersections, which is to be paid by said city, upon the lots and lands in said districts to be charged therewith, in proportion as nearly as may be to the benefits which will result from said improvement to the said several lots and parcels of land so assessed for the construction of said sewers made pursuant to ordinance No. 6133, entitled, 'An ordinance determining to proceed with the construction of sewers in sewer districts Nos. 6 and 7 in the city of Dayton, state of Ohio,’ passed May 2, 1904, as made and reported to said council on the 14th day of November, 1904, by the committee of freeholders theretofore appointed by the council for that purpose and filed in the office of the clerk of said city, be and the same is hereby adopted and confirmed, and in accordance with said estimated assessment and report there is hereby levied and assessed upon the lots and parcels of land in said districts and hereinafter set forth, to pay the portion of the cost of said improvement specially assessed as aforesaid, the several amounts following, to-wit:

The intention of the legislative body in passing a law or ordinance is first to be looked to in the interpretation of its terms. What was the intention of the council in these proceedings? Was it to exclude a part of the sewer districts named from the scope of the ordinances, and consequently - to exclude plaintiff’s property, or did it intend to include the entire district? Undoubtedly the latter. A mere reading of the different resolutions, notices, reports and ordinances we-think-precludes argument on that question. Did it carry outfits intention in the very words of the different enactments, etc.! We are of the opinion that it did. Plaintiff’s property is therefore a part of the district improved.

Plaintiff further complains because he had no notice of the proceeding. It appears from the agreed statement of facts that notice was given to this plaintiff by serving a true copy of the resolution to proceed upon him. It further appears that such notices as are required to be given by publication were published. Plaintiff’s point here is that such notices and publications did not apprise him of the fact, and did not show that his property was to be included within the district. The description of the sewer, district is of the entire districts Nos. 6 and 7; on this we have passed in considering the preceding point. And we find, therefore, that he had notice.

Another objection made by plaintiff to the assessment is that council, in assessing his property, acted under a law not in existence at the beginning of its proceedings in this matter. At the time of the adoption of the resolution of necessity (November 16, 1903), the law as to ordinances for assessment of costs, etc., was. that upon the certificate of the engineer showing the completion of the work the council shall by ordinance assess the real estate as provided in the ordinance to improve. The ordinance to improve was passed May 2, 1904. Before that time, on March 25, 1904, Section 87 of the code was amended by the Legislature, and, as 1536-250, provides that council may, if it deems it expedient, by ordinance assess real estate, as provided in the ordinance to improve, and cause such assessment to be collected, or at its option may issue bonds in anticipation of the collection of such assessments before the work is done or contracted for, or council may, at its option, delay such assessments nntil the work is completed and then upon the certificate of the engineer showing the completion of the work, by ordinance, assess the real estate, as provided in the ordinance to improve, etc.

Following this statute in its ordinance to levy special assessments to pay, etc., council provided by Section 3 of said ordinance, that “to provide for the payment of the proportion of the cost and expenses for which said special assessments were levied herein for the construction of sanitary sewers in said sewer districts hereinbefore described, and in anticipation of the collection of the said special assessment, the city’s portion of the cost and expense of said improvement having been already provided for, the bonds of the said city in an amount equal to the portion of said special assessment not paid in cash shall be issued and sold in accordance with law and with the ordinance hereinafter to be passed providing for said bonds.”

This it could not have done under the provisions of Section 87 of the code, and it is of this that plaintiff complains, insisting that the law as it was at the beginning of the proceeding, and as found in said original Section 87, should have governed council in making this assessment. The Supreme Court has settled this question for us in the Seasongood case, 46 O. S., page 296, the syllabus of which reads as follows:

“A municipal corporation having through its proper boards and officers passed a resolution and ordinance to improve a street, in its assessment of costs and expense of the improvement upon the abutting property it should be governed by the law in force at the time of the passage of the improvement ordinance, with respect to the manner of assessment and the rights and liabilities of the owners of abutting property. ’ ’

On principle the same rule will apply in case of an improvement in constructing a sewer. The Seasongood case was reaffirmed by the Supreme Court in Miller v. Mixon, 64 O. S., page 52.

If governed by the date of the passage of the improvement ordinance it was not only council’s privilege, but it was its duty, to make the provisions of the assessment ordinance under Section No. 1536-250. This it did; and we therefore imd that in making the assessment council followed the law.

Plaintiff also complains because his land already has surface drainage and can not therefore be assessed.

Section 53 of the code provides that— •

“The assessment levied for construction of main sewers shall not exceed the sum which would, in the opinion of council, be required to construct an ordinary street sewer or drain of sufficient capacity to drain or sewer the lots or lands to be assessed for such improvements, nor shall any lots or lands be assessed that do not need local drainage or which are provided therewith.”

The plaintiff relies upon the natural drainage in his locality into Dry Hollow.

In the case of Ford v. Toledo, 64 O. S., page 92, the second syllabus, which is the law of the case, is as follows:

“The local drainage contemplated by that provision is that which provides the lot or land with adequate drainage for the necessary and usual purposes of sewerage, and it is not enough to entitle the lot or land to exemption to assessment that it is provided with sufficient surface drainage, or does not need drainage of that kind.”

Such a case' as that found in 46 O. S., page 407, is the kind contemplated by the statute. In that case a large sewer emptying into the river, ample for all local sewerage of lands entitled to connect with it, had been constructed by municipal action, and that was held sufficient to exempt the lands so entitled to connect from assessments from another sewer constructed by the city.

No claim-is made in this case that Dry Hollow can with safety to health be used for anything more than surface drainage. Council in this matter was necessarily dealing with the needs and interests of the entire districts for the benefit of which this sewer was being constructed, whether that use be present or future; and the cost of main sewers used in a district and if necessary for the whole district not only may but should be assessed on all the property owners of such district according to benefits, whether they come into the immediate use of it or not. A sanitary sewer is not only beneficial to the one making actual use thereof, but also to all others within the district where it is. located and used.

The determination as to the necessity of such an improvement is for the council in the exercise not only of the taxing powers but also of the police powers delegated to it by the code under Section 77 et seq., by which it is given full authority with respect to sewers.

This authority combines discretion. The question of the unreasonableness or oppressiveness of its acts in strict pursuance of such express authority is something with which the courts have nothing to do. See 34 Mo. Appeal, 521.

Our opinion is that the fact that Dry Hollow constituted simply surface drainage for the plaintiff’s property ought not to relieve him from proper assessment.

A further complaint is made by the plaintiff because the assessment exceeds the cost of an ordinary sewer. This sewer is a sewer for the district. The mains proper, on which plaintiff is assessed, are not only things necessary to a sewer, but also the equipment provided, and any expense so incurred would not only be legitimate but necessary in an ordinary sewer for such purposes and so located.

The complaint here is made because of the added cost arising from a pumping station, etc. All of these we find necessary under the testimony for the .proper construction of the sewer in question. This being true, it is evident the cost of this sewer does not exceed the cost of an ordinary sewer of this kind.

Further, Section 1536-255, provides that—

“The councils of cities and villages, in accordance with the, provisions of this title, may provide for the construction and maintenance of such sewer pumping stations and equipping the. same with the necessary machinery and apparatus, and provide for the necessary buildings therefor, as council shall deem necessary. ’ ’

Plaintiff complains because the assessment was by the front foot and not according to benefit. This is largely a question of fact and not of law. We find from the evidence that the assessing board, acting in good faith and apparently to the best of their ability, made this assessment according to benefits.

Plaintiff further complains because he is required to pay for a benefit he does not receive. His assessment is for main and not for lateral sewers. The main sewers are for the use of the entire district in which the property is located. They are a permanent improvement. The question, then, is, first, can the entire district be assessed by benefits for a main sewer which constitutes a part of the general sewerage of the district? Second, if by benefits, by whom is such benefit to be determined?

Section 50 of the code provides:

“The council of any municipal corporation may assess upon the abutting, adjacent and contiguous or other specially henefitted lots or lands in the corporation any part of the entire cost of and expense connected with the improvement * * * constructing sewers, drains or water-courses,” etc.
“First. By a percentage of the tax value of the property assessed.
“Second. In proportion to the benefits which may result from the improvement.
“Third. By the foot frontage of the property bounding or abutting upon the improvement.” -•

Section 53 provides:

“In all cases of assessments the council shall limit the same to special benefits conferred upon the property assessed,” etc.

For the ascertainment of such benefits, Section 58 provides, in cases where it is determined to assess the whole or any part of the cost of any improvement in proportion to the benefits which may result from such improvement as provided for herein, the council may appoint three disinterested freeholders of the corporation to report to it the estimated assessment of such costs on the lots and lands to be charged therewith, in proportion as nearly as may be to benefits which may result from the improvement to the several lots or parcels of land so assessed, a copy of which assessment shall be filed in the office of the clerk of the corporation for public inspection.

The law since 66 O. L., page 252, has been that, “Where a corporation is divided into sewer districts the assessments provided for shall be by districts. ’ ’

This provision is now found in Section 85 of the code. Section 69 provides that:

“On a day appointed by council for that purpose, the board mentioned in Section 2279 of the Revised Statutes of Ohio after qualifying before the proper officers to honesty and impartially discharge their duties, shall hear and determine all objections to the assessment and shall equalize the same as they think proper, which equalized assessment they shall report to council, which shall have the power to confirm -the same or set it aside and cause a new assessment to be made and appoint a new equalizing board possessing the same qualifications, which shall proceed in the manner above provided. When the assessment is confirmed by the council, it shall be complete and final and shall be recorded in the office of the clerk of council. ’ ’

Notice of the assessment made by the assessing board having been published, Section 1536-260 (Section 2279) provides, that if any person objects to the assessment he shall file his objections in writing with the clerk within two weeks after the expiration of the notice, and thereupon the council shall appoint three disinterested freeholders of the corporation to act as an equalizing board.

It appears that no objection was filed by this plaintiff. Not having filed objection, his assessments stand as made by the board appointed to report estimates of assessments; and so went before the council for approval and were confirmed and levied by the ordinance of January 3, 1905.

Under Section 69 of the code, when the assessment is confirmed by council it 'shall be final. This, as we understand it, means that the assessment confirmed shall be the assessment levied and to be collected. As to whether or not it is in fact according to special benefits is not a question of use, as shown by an authority already cited (64 O. S., 92).

We do not find that plaintiff’s testimony in the case meets the real question.. No fraud is shown here upon the part of these appraisers, nor do we find from the testimony that there has been great oppression or abuse of discretion. Either one or both of these must be present to warrant the interference of this court.

“The finding made by the assessing committee of council as to the amount of benefits accruing to property respectively in such sewer district under tbe statute is conclusive upon the court, unless fraud or oppression is shown.” 20 C. C., page 290.

William G. Frizell and R. G. Corwin, for plaintiff.

Thomas B. Herrman, City Solicitor, and Philo G. Burnham, Assistant Solicitor, contra.

We therefore find that these- assessments are according to benefits.

We have now discussed all of the objections to the assessment raised by plaintiff, and all of same having been found as not well taken, the prayer of plaintiff is denied and his petition is dismissed at his costs.  