
    City of Toledo v. Board of Education.
    
      Assessments for street improvements — School property not liable to.
    
    School property is not liable to assessment for a street improvement; nor can a judgment be rendered against the Board of Education for the payment of the assessment out of its contingent fund.
    (Decided Feb. 3, 1891.)
    Error to the Circuit Court of Lucas county.
    
      The action below, was for the recovery of the amount of an assessment made upon the property of the defendant tor a street improvement. The petition is as follows:
    “ The plaintiff says — That at the time of the happening of the occurrences hereinafter mentioned, it was, and now is, a municipal corporation, duly incorporated under the laws of Ohio as a city of the third grade of the first class.
    “ That on the 21st day of June, A. D. 1886, the common council of the city of Toledo passed a resolution declaring it necessary to improve Twelfth street, a public highway in said city, from the north-easterly gutter line of Washington street, to the south-westerly gutter line of Oak street, by grading and paving the central twenty-six (26) feet thereof with cedar blocks, and providing the necessary curbing, drainage, etc., in accordance with the plans, specifications and profiles on file in the office of the city civil engineer. Said resolution was duly approved by the mayor of said city, and was published for two consecutive weeks in a newspaper published and of general circulation therein. And said common council also gave twenty days written notice of the passage of said resolution to the owners of the property abutting upon the improvement, and especially to the defendant herein, or to the persons in whose name the property was assessed for taxation upon the tax duplicate, who were residents of the county of Lucas.
    “ That on the 2nd day of August, A. D. 1886, the said common council duly passed an ordinance prdviding for the making of said improvement in accordance with the provisions of the aforesaid resolution. Said ordinance further provided that the costs and expenses of said improvement should be levied and assessed upon the lots and lands bounding and abutting upon said improvement in proportion to the foot front, and that said assessment should be payable in three (3) installments. One-third in ten days after confirmation of said assessment, one-third in one year, and one-third in two years thereafter to the contractor doing the work, or-his assigns. Said ordinance was duly approved by the mayor of said city, and was published twice in a daily newspaper of general circulation therein.
    “ That thereupon said city, by its clerk, duly advertised for the period of four weeks, in two newspapers published in said city, for bids for making said improvement in accordance with said resolution and ordinance, and certain bids therefor were filed and opened in accordance with the provisions of the statute in such case made and provided ; and John Streicher and William Casey having filed the lowest responsible bid, the same was accepted by the plaintiff, and a contract for making said improvement, in accordance with the aforesaid resolution and ordinance, was duly entered into by and between plaintiff and said John Streicher and William Casey on the 27th day of September, A. d. 1886.
    “ That thereupon the said John Streicher and William Casey proceeded to make said improvement, and completed the same in all respects in accordance with the terms of said contract, and the same was duly accepted by said engineer and the city of Toledo.
    “ That after the completion and acceptance of said improvement as aforesaid, to wit: on the 15th day of August, A. D. 1887, the common council of said city, by an ordinance duly passed, made an assessment in accordance with the provisions of the statute in such case made and provided, to pay for said improvement, and thereby levied and assessed upon each front foot of the several lots or parcels of land bounding and abutting on said improvement the sum of two dollars and fifty-seven and 558-1000 cents, and assigned said assessment to said John Streicher and William Casey, and ordered payment thereof to be made to them or their assigns, one third within ten days, one third in one year, and one third in two years after confirmation, or be subject to the interest and penalty thereon allowed by law. Said ordinance was published twice in a newspaper of general circulation in said city.
    “ That at the time of making the assessment as aforesaid, the defendant, The Board of Education of the city of Toledo, Ohio, was the owner of the following described premises, and by the assessment aforesaid there was levied and assessed thereon the following sum, to wit:
    “ On lot number seventeen, and the southwesterly two thirds of lot sixteen (17 & S. W. 16) of Dunlap’s Addition to the city of Toledo, Lucas county, and state of Ohio, the sum of 1489.36, which said lot was, at the times aforesaid, and is now, used for school purposes by The Board of Education of the city of Toledo, Ohio, and which sum is still a valid lien thereon, and wholly unpaid and unsatisfied.
    “ That all right, title and interest in said assessment have been, for a valuable consideration, sold and transferred to said John T. Coghlin, who is now the owner and holder thereof.
    “ That payment of said assessment has been demanded previous to the commencement of this suit, but the same, or any part thereof, has not been paid, and plaintiff is, therefore, entitled to recover the statutory penalty of five per centum thereon.
    “ That there is now due to plaintiff for the use of said John T. Coghlin, on account of said assessment, the aforesaid sum with interest on one third thereof from August 25, 1887, on one third thereof from August 25, 1888, and on one third thereof from August 25, 1889, and also the statutory penalty of five per centum thereon, for which amount plaintiff asks judgment against said defendant.
    Wherefore plaintiff prays that an account may be taken of the amount due by reason of said assessment, including penalty and interest thereon, that judgment may be entered therefor against said defendant, that said amount may be declared a first lien on the premises which were assessed, and be ordered to be paid within a short day to be fixed by the court; that in default of such payment said premises be sold, as upon execution at law, to pay the same, and that plaintiff may have such other and further relief as may be equitable and just. T. J. McDonnell,
    “ Attorney for plaintiff."
    
    The defendant demurred to the petition, the demurrer was overruled, and a personal judgment rendered against the defendant, which was declared a lien upon the school property of the defendant. On error, the judgment was reversed by the circuit court, and the petition below dismissed. The sufficiency of the petition is the only question presented.
    
      T. J. McDonnell and W. H. A. Read, for plaintiff in error.
    
      E. W. Tolerton, for defendant in error.
   By the Court :

The plaintiff, the city of Toledo for the use of the contractor, is not entitled to the relief prayed for, nor, under the prayer for general relief, can a judgment be rendered against the Board of Education for the payment of the amount of the assessment out of the contingent fund of. the board, authorized to be raised by section 3958 Revised Statutes. The amount must be paid out of the general fund of the city.

Judgment affirmed.  