
    State ex rel. v. Silas Hoffman, Auditor.
    1. Where a municipal corporation, in exercising the power of assessment to pay for a public improvement, levies the assessment upon property" which was not subject to be charged therewith, and, in a suit brought to enforce the assessment, the property thus charged was ordered to be sold to pay the same, it is competent for the legislature to relieve the property thus ordered to be sold, and to require the amount improperly charged thereon to be paid out of the funds of the corporation.
    2. Where the statute granting such relief does not confer corporate power, it may be a special act.
    
      3. In a proceeding in mandamus to compel the auditor of the city of Cincinnati to issue a warrant upon the city treasurer, as required by the act of May 8, 1879 (76 Ohio L. 256), it is not material to inquire whether there is money in the city treasury with which to pay the warrant or not. How the warrant is to be paid is no concern of the auditor, in discharging the duties imposed upon him by the statute.
    Mandamus. Reserved in the District Court of Hamilton county.
    On tbe application of William M. Corry, the relator, an alternative writ of mandamus was issued by the District Court of Hamilton county against Silas Hoffman, auditor of the city of Cincinnati, to compel him to perform the duties enjoined upon him by the act of May, 8, 1879, entitled “ an act providing for the relief of W. M. Corry” (76 Ohio L. 256).
    The act is as follows :
    “An act providing for the relief of W. M. Corry.
    “Whereas, By an ordinance passed by the trustees of the Mt. Auburn, Walnut Hills, and Clintonviile special road district, adjoining to and since annexed to the city of Cincinnati, 15th of November, 1869, an assessment of $11 per front foot was levied for the improvement of Jefferson street, Corryville, from Calhoun to St. Clair street, which was previously ordered to be made by said trustees. And the said assessment ordinance, besides many lots 25 feet front by 100 deep>, belonging to various owners, covered blocks 25 and 32, owned by W. M. Corry, being each 400 feet square, and fronting on four unimproved streets, to wit, block 25 by Jefferson, Boone, Madison, and Hammond, and block 32 by Jefferson, Hammond, Madison, and Wayne streets, so that the assessment upon the 800 feet front of the two blocks would be $8,800, which the law made a lien only on the Jefferson street front to the depth of 100 feet; and,
    “ Whereas, The contractor claimed a lien for the Jefferson street improvements over the entire blocks, which claim being assailed by suit in the Hamilton Common Pleas, was, by a mistake of tbe law and of the facts, allowed by the court, affirmed on appeal by the district court, and afterward on error to the Supreme Court, from which last court, on suggestion of an erroneous decision of a federal question, the case was heard after three years’ delay, and relief derived by the Supreme Court of the United States ; and,
    “Whereas, In May, 1875, an order of sale of the district court aforesaid had been issued, following the decree by which said blocks 25 and 32 were appraised entire at. $12,000 each, but the sale was suspended by Justice Swayne, of the United States Supreme Court, and proceedings were superseded in the state courts until 1878. The federal court docket not permitting an earlier hearing, but which order for sale is now being enforced so as to sacrifice the entire blocks for the making of one street out of the four on which they front respectively; and,
    “Whereas, Since the decree in this case the courts of Ohio have decided that the limit of the street contractor’s lien upon undvided blocks extends only to the depth of 100 feet, if that be, as it is here, the usual depth of lots, and consequently the counsel on both sides, the parties, and the court were mistaken in allowing it to extend over the entire blocks 25 and 32, or four times as much property as should have been charged, leaving nothing for the other three streets, which mistake they would correct if the unavoidable delay of over three years in the federal court had not cut off the writ of error; therefore,
    “ Section 1. Be it enacted by the General Assembly of the State of Ohio, That the auditor of the city of Cincinnati be and he is hereby authorized and required to ascertain the actual value of the Jefferson street front of blocks 25 and 32, Corryville, 100 feet deep, in proportion to the total appraised value aforesaid, and that shall be the extent of the contractor’s lien. The said W. M. Corry shall pay his part of the assessment according to the law at the time said lien took effect; and the city the remainder thereof, within ninety clays from the time when said reassessment is made. If the said Corry, at the expiration of said time, is in default of payment, then the part of the premises above designated shall be sold. The city auditor shall issue his warrant upon the city treasurer for the amount to be paid by the city, to be paid out of the general fund of said city, and the same shall be a sufficient voucher without other proceedings.
    “ Sec. 2. This act shall take effect and be in force from and after its passage.
    James E. Neal,
    
      Speaker of the House of Representatives.
    
    Jabez W. Fitch,
    Passed May 8, 1879. President of the Senate.”
    
    The facts upon which the relator founds his claim to relief, are substantially set out in the preamble of the act.
    The defendant sets up in answer to the alternative writ, that the act sought to be enforced is unconstitutional, and, therefore, void.
    In regard to the contract under which the improvement of Jefferson street was made, as mentioned in the act, he makes the following averments: “ That the special road district of Walnut Hills, Mt. Auburn, and Clintonville, being then a separate and distinct municipal corporation under the laws of Ohio, after proceedings had in accordance with law in that behalf, in November, 1868, contracted with Hugh Campbell for the improvement of Jeff'erson street, between Calhoun and St. Clair streets, in said special road district, by the terms of which said contract it was expressly agreed, among other things, that ‘they/ meaning the said trustees, ‘ shall, on acceptance of the work, make an assessment on the front foot, by ordinance, on all lands bounding and abutting on that part improved by said Hugh Campbell, and at the rates before stated; and' the said Hugh Campbell freely agrees to receive the said assessment in full payment and discharge of all obligations to him on the part of said special road village; and the said Hugh Campbell will assume the collection of said assessment from the owners or proprietors of said lots, without charge or cost of any sort to the special road village (and in no event will the special road village or the trustees be held liable for the expenses of said improvement); ’ that, afterward, to wit, on the 20th day of February, 1869, the said improvement having progressed in the meantime, the said Campbell having taken in a partner, one John Gaynor, to assist him in the work, an additional contract was entered into, between said trustees and' Campbell and Gaynor, for said improvement, vykich provided, among other things, that they,’.meaning the said trustees, shall, on acceptance of the work, order_and cause to be made out an assessment levied on the front foot, by ordinance, on the lands fronting and abutting on that part improved by said Campbell and Gaynor, at the rates before stated; and the said Campbell and Gaynor agree hereby to receive the said assessment in full payment and discharge of all obligations to them on the part of said special road village, on conditions that said special road village, by the trustees thereof, shall have performed all of their duties herein in accordance with law and this agreement.’ ”
    The answer also avers that the work was fully performed by the contractors, in accordance with the agreement.
    It was also averred, in the answer, that the special road district of Walnut Hills, Mt. Auburn, and Clintonville was annexed to the city of Cincinnati, March 10, 1870, and, at the time of the annexation, all of the property of the special road district was transferred to and became the property of the city, and the city assmmed and agreed to pay, within a reasonable time, all the liabilities of the said special road district; that there was not, at that time nor since, any debt against the same by reason of said improvement of Jefferson street: that, by reason of said transfer, the city obtained a vested interest in said street, free of any debt or charge.”
    It is also set up, that there is no money in the treasury of the city to the credit of the general fund, not otherwise appropriated by law, with which to meet the warrant herein sought to be obtained.”
    
      A demurrer was filed to the answer ; and on the question thus raised, the case was reserved to this court for decision.
    
      Bonham § ForaJcer and J. J. Glidden, for the relator,
    cited: 1 Dillon on Municipal Corp. 143 ; Cooley’s Cons. Lira. 235, et seq.; Town of Guilford v. Board of Supervisors, 13 N. Y. 143; United States v. Railroad Co., 17 Wallace, 322 ; 57 N. Y. 189 ; 41 Cal. 530; 31 N. Y. 164 ; 20 Ohio St. 362; 5 Otto, 332; 17 Ohio St. 608; 64 N. Y. 100; 42 Cal. 446; 76 Ohio L. 256; 21 Ohio St. 42; 22 Ohio St. 475.
    
      Kumler, Crosby ¡f Ampt, for the respondents :
    The legislature had no authority to pass the act. Art. 1, § 10 U. S. Con.; art. 11, § 28 Ohio Con.; 27 Ohio St. 426 ; 37 Barb. 440 ; Cooley’s Con. Dim. *232; 13 Nev. 439 ; 33 Vt. 283 ; 34 Penn. St. 496 ; 9 Minn. 273; 42 Barb. 549 ; 60 Me. 124; 53 N. Y. 128; 64 N. Y. 91.
   White, J.

The contract between the trustees and the contractors, as set up in the answer, bound the former, on the acceptance of the work, to assess the value thereof, as ascertained by the rates at which it was to be performed, on all the lands abutting on the improvement. And the agreement on the part of the contractors, that they would receive the assessment in full payment of the work, was subject to the condition that the assessment should be made by the trustees in accordance with law and the agreement.

The assessment contemplated by the agreement was evidently a valid assessment, for the full amount due to the contractors under the contract.

By the adoption of the municipal code of May 7, 1869, the Mt. Auburn, Walnut Hills, and Clintonville special road district was created an incorporated village for special purposes. 66 Ohio L. 149, § 6.

By section 51 of that act the trustees of such villages were invested with the exclusive jurisdiction of all public roads, streets, and alleys constructed or to be constructed within the limits of the corporation ; and they were authorized “ to lay out, establish, open, widen, improve, straighten, keep in order and repair roads, streets, and alleys.”

By section 54 it was provided that the “ trustees shall have power to make and publish, in the same manner as other corpox*ations, such by-laws, resolutions, and ordinances as to them shall seem necessary to carry into effect the foregoing powers; and shall have, in all respects, the like rights and remedies in the enforcement of such by-laws, resolutions, and ordinances as are herein given to other municipal corporations.”

The power of the trustees to assess the abutting property to pay for the improvement was subject to the limitation prescribed by section 542 of tbe municipal code. 66 Ohio L. 241. The section is as follows: “ In making a special assessment according to valuation, the council shall be governed by the assessed value of lots where the land is subdivided and the lots are numbered and recorded. Where there are lots which are not assessed for taxation, or there is land which is in bulk and not subdivided into such lots, the council shall fix the value of such lots or the front of such land to the usual depth of lots, by the average of twc blocks, one of which shall be next adjoining, on each side If there are xio blocks so adjoining, the council shall fix the value thereof, so that it will be a fair average of the assessed value of other lots in the neighborhood.”

The limitation contained in this section upoxx the power of makixxg assessments is applicable to assessments levied upon the property abutting on the improvement in proportion to its frontage, as well as to assessments levied upon such property in propox-tion to its taxable valuation. The City of Cincinnati v. Oliver et al., 31 Ohio St. 371.

The blocks 25 and 32, owned by the relator, were not subdivided into lots which were numbered and recorded. The usual depth of lots in the two adjoining blocks was one hundred feet; and it was the duty of the trustees, in assessing the px’operty of the relator, to have limited the assessment to a corresponding depth. Instead of doing so, however, they extended the assessment to the entire depth of the' blocks, four hundred feet.

The assessment, therefore, was not made in accordance with law; and the contractors were not required, under their agreement with the trustees, to receive it in full payment for the work.

"Where the amount that could properly be raised by assessment was insufficient to pay for the work, section 543 prescribed the mode in which the deficiency was to be supplied. The section is as follows: “'In no case shall the tax specially levied and assessed upon any lot or lands for any improvement, amount to more than fifty per centum of the value of such lot or lands, after the improvement has been made, and all cost thereof exceeding said per centum that would otherwise be chargeable on such lot or lands, shall be paid by the corporation out of its general revenue

Had the trustees observed the statute, in making the assessment, the cost of the improvement over and above fifty per centum of the value of the portions of the blocks 25 and 32, subject to assessment, would have been payable out of the general revenue of the village; and by the annexation, the same liability, if not discharged, would have devolved upon the city.

The liability is claimed to have been discharged by the recovery of a judgment in favor of the contractors against the relator, subjecting the whole of the blocks to sale for the payment of the cost of the work.

It does not appear that the village was a party to the proceeding in which the judgment was rendered. But however this may haveb.een, it is manifest that a great wrong was done to the relator, by subjecting to sale property which was not by law subject to assessment. This error originated with the trustees in levying the assessment upon .the whole of the blocks, instead of restricting it to the depth of one hundred feet. The same ■ error was carried out in the proceedings to enforce the assessment.

The effect of the error was to exempt the village from the portion of the cost of the improvement, which it ought to have borne, and to impose it upon the property of the relator. The object of the statute in question is to correct this wrong, and to relieve the relator of a burden, which, in justice, ought to be borne by the public. Of the power of the legislature to pass the statute we entertain no doubt. The principle upon which such legislation is founded was declared by this court, in the case of The State ex rel. v. The City of Circleville, 20 Ohio St. 362. It has also been recognized by the Supreme Court of the United States, in the ease of New Orleans v. Clark, 5 Otto, 644. And the same doctrine is found in many other authorities, to which it is not necessary hereto refer. Where the public, through its agents, wrongs an individual, it ought, upon the plainest principles of justice, to be required to make reparation.

The objection suggested in argument, that the relief, if granted at all, should have been granted by a general law, is not well taken.

The subject-matter of the act is of a local and temporary nature, and where the statute granting the relief does not confer corporate power, it may be a special act. State ex rel. v. The Judges, 21 Ohio St. 1; State ex rel. v. Davis et al., 23 Ohio St. 434; State ex rel. v. Covington, 29 Ohio St. 102.

There is no validity in the claim set up by the defendant, that there is no money in the treasury of the city with which to pay the warrant, should one be issued.

The duty enjoined on the defendant as auditor of the city to issue the warrant is not made dependent on whether there is money in the treasury to pay the warrant. On ascertaining the amount that ought to be paid by the city, in the mode prescribed, he is directed to issue his warrant upon the city treasurer for the amount so ascertained, to be paid out of the general fund of the city, and the same is-declared to be a sufficient voucher. The duty of paying the warrant is devolved on the treasurer, and whether he has funds or not with which to take up the warrant is no concern of tbe auditor in discharging the duties imposed upon him by the statute.

Peremptory writ awarded.

Okey, J.,

having been of counsel in the original suit, took no part in the decision of this case.  