
    Struble et al., Appellants, v. City of Cincinnati et al., Appellees. (Six cases.)
    (Nos. 6911, 6912, 6913, 6914, 6915 and 6916
    Decided March 1, 1948.)
    
      Mr. David L. Shannon and Mr. Roy L. Struble, for appellants.
    
      Mr. Henry M. Bruestle and Miss Isabel Guy, for appellees.
   By the Court.

In these actions the plaintiffs sought injunctions restraining the collection of an assessment to pay the cost of a street improvement.

The trial court denied the injunctions and made separate finding of facts and conclusions of law.

The actions are before this court on appeals on questions of law. There are no bills of exceptions, and the only question is whether the findings of facts are sufficient to support the decrees.

It is .stated in the second paragraph of the syllabus of the case of Jack v. Hudnall, 25 Ohio St., 255, 18 Am. Rep., 298:

“Where the finding of facts by the court fairly admits of a construction which will support the judgment, that construction will be adopted rather than a ■different one which would render the judgment erroneous.”

However, we do not find it necessary to have recourse to that rule of construction to support the decrees in these cases.

A reading of the findings of facts discloses that the court found that all the procedural requirements of the law for the levying of the assessment were met, that there was no abuse of discretion, that there was no suggestion of fraud, and that there were benefits conferred upon the plaintiffs’ property by the improvement.

The court found also that “the assessment was in excess of the benefits conferred.” It is urged that such finding requires the granting of injunctions restraining the collection of the excess.

Plaintiffs’ counsel rely on statements contained in the opinions in Damar Realty Co. v. City of Cleveland, 143 Ohio St., 469, 55 N. E. (2d), 805; Domito v. Maumee, 140 Ohio St., 229, 42 N. E. (2d), 984, and Walsh v. Barron, Treas., 61 Ohio St., 15, 55 N. E., 164, 76 Am. St. Rep., 354, that special assessments have no legal justification except in special benefits, and that an assessment beyond special benefits has no legal justification. That rule may be conceded. However, that is not the question presented by these records.

The question here presented is as to the power of the court to set aside the finding of the city council that the plaintiffs’ property was benefited to the amount of the assessment. Does a mere finding by the court that the assessment exceeded the special benefits justify the court in granting an injunction against the collection of the assessment in whole or in part? We think not.

In 28 Ohio Jurisprudence, 795, Section 502, the Ohio cases are summarized as follows:

“The statute provides that when an assessment as reported by an equalizing board to the council is confirmed by the council, ‘it shall be complete and final.’ It is also well established, independently of statutory provision, that where the council of a municipality determines that the amount of an assessment does not exceed the value of the special benefits conferred, its judgment in the premises, in the absence of fraud or an abuse of discretion, is final and conclusive. And where an assessing board has made a finding as to the amount of benefits and has made an assessment on the basis thereof, there is a prima facie presumption in favor of the correctness of such finding, and it will not lightly be disturbed or inquired into, in the absence of allegations of some of the grounds usually invoking equitable intervention.”

That a judicial conclusion that the amount found by the assessing authority was in excess of the special benefits, does not invalidate the assessment, is generally held. In Louisville & Nashville Rd. Co. v. Barber Asphalt Paving Co., 197 U. S., 430, 49 L. Ed., 819, 25 S. Ct., 466, the court said:

“There is a look of logic when it is said that special assessments are founded on special benefits and that a law which makes it possible to assess beyond the amount of the special benefit attempts to rise above its source. But that mode of argument assumes an exactness in the premises which does not exist. The foundation of this familiar form of taxation is a question of theory. The amount of benefit which an improvement will confer upon particular land, indeed whether it is a benefit at all, is a matter of forecast and estimate. In its general aspects at least it is peculiarly a thing to be decided by those who make the law.” See Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. City of Minot, 51 N. D., 313, 199 N. W., 875, 37 A. L. R., 211; annotation, 37 A. L. R., 226; and City of Cincinnati v. Board of Education, 63 Ohio App., 549, 27 N. E. (2d), 413.

For these reasons, the decrees are affirmed.

Decrees affirmed.

Matthews, P. J., and Hildebrant, J., concur.

Ross, J.,

dissenting. I dissent from the opinion and judgment because, when the trial court found the assessment exceeded the benefits, the assessment could not be sustained under the rules laid down in Damar Realty Co. v. City of Cleveland, 143 Ohio St., 469, 55 N. E. (2d), 805. It must be presumed there was evidence to sustain the court’s finding, in the absence of bills of exceptions showing the contrary. The decrees should be reversed and judgment should be here entered for the plaintiffs.  