
    Longworth et al. v. The City of Cincinnati et al.
    2. In making a street improvement, by a city, under the provisions of sections 199, 544, and 576 of the municipal code, the expense of building a wall that is necessary for the protection of the street, which is built partly on the street, and partly on adjoining property, with the consent of the owners, may be assessed upon the property abutting on the improvement.
    
      '2. Where the surveying and engineering of such improvement were performed by the chief engineer of the city and his assistants, who were officers appointed for a definite period, at a fixed salary, which the law required to be paid out of the general fund of the city, the reasonable cost to the city, of such surveying and engineering, can not be ascertained and assessed upon the abutting property, as a necessary expenditure for the improvement.
    :3. If a superintendent, of such an improvement is necessary, and one is employed by the city for that particular improvement, the amount paid by the city, for his services, may properly be included in the assessment.
    4. The cost of lateral and cross drain-pipes, which are necesary to make the improvement in a good and workmanlike manner, may properly be assessed upon the abutting property, as an item of necessary expenditure in making the improvement.
    Motion, by plaintiffs in error, for leave to file petition in error, to reverse the judgment, in part, of the Superior Court of Cincinnati; and motion, by defendant in error, for leave to file cross-petition in error, to reverse the judgment, in part, of the same court in the same case.
    The matters in controversy between the parties grow out of the improvement of Colerain avenue in the city of Cincinnati, between Central avenue and Center street, a distance’ of more than two miles. The improvement was let to contract, and completed in the year 1877, at a cost of more than $70,000 ; and by ordinance a special tax of about $5.87 per front foot, upon all the real estate bounding and abutting on the avenue, was assessed to pay the expense of the improvement. ’
    All the proceedings on the part of the city in making the' improvement of the avenue, and in making the assessment, were regular and proper. The original action was brought, in the superior court by the plaintiffs, Joseph Longworth and many others, who are owners of real estate abutting on the avenue, against the city, the auditor of the city, and the county auditor, defendants, to enjoin the certifying and. collection of the assessment, on the property of the plaintiffs. In their petition, the plaintiffs allege that a number of designated items of the expense of the improvement were improperly included in the assessment. On the trial some of these items were admitted by the city to be, in whole or in part, improperly included in the assessment, and on the part of the plaintiffs it was admitted that certain items of expense of which they had complained in their petition,, were properly included in the assessment. Only the items of expense that are in controversy between the plaintiffs and the city need be noticed.
    The plaintiffs contend, and the city denies, that the following items of expense were improperly included in the-assessment.
    
      
      First. The expense of building a stone wall along a portion of the east side of the avenue, where it was very close to the Miami and Erie canal, at a cost of $10,864.41.
    
      Second. The expense of engineering and surveying, amounting to $1,046.10.
    
      Third. The expense of superintending the performance of the work, being $695.31.
    
      Fourth. The cost of certain lateral and cross drain-pipe used in making the improvement, amounting to $4,256.24.
    On the trial, at the request of counsel, the court made a finding of facts and of law separately; the facts as found, applicable to the items above specified, being as follows:
    
      First. “ That in such assessment there was included the sum of $10,864.41. for building a stone wall along a portion of the east side of Colerain- avenue, where said avenue runs very close to the Miami and Erie canal.
    “ That Colerain avenue was originally a turnpike, and after the corporate limits of the city of Cincinnati were extended, said turnpike was purchased by the city and became a public street, and on the 31st day of May, 1872, the grade of said avenue was established by the common council of Cincinnati.
    “ That for a distance of more than 1,600 feet said avenue runs along very close to the west side-of the Miami and Erie canal, said canal having been constructed at this point along the side of a hill, and being about fifteen feet above the grade of said avenue. That at the time said turnpike became the property of the city, there was a stone wall along that part of the east side of said turnpike, where the same runs near to the canal, which, at the time the resolution and ordinance to improve said avenue were passed, was in a ruinous condition.
    “ That the board of improvements of Cincinnati was notified by property owners, on the west side of said avenue, and opposite said wall, that the old wall was in a ruinous condition, and that, in the event of a break, they would hold the city liable in damages.
    “ That the making of the improvement to the established grade of said avenue, and to the full width, rendered it necessary to cut down the old road-bed somewhat, and to cut further into the canal bank, and also to remove the old wall.
    “ That it was impossible to improve said avenue between •Central avenue and Center street, unless this wall, so assessed for, was first built, and that the improvement of said avenue made it necessary to build this wall to keep the canal from breaking through onto the street, and overflowing the neighborhood.
    “ That this wall was built for the most part off the. street, and stands on property belonging to the State of Ohio, or to private persons, the consent of the owners to so placing the wall having been first obtained; the face of the wall for most of its length being on the east line of said avenue, only a portion of it being within the street lines. , That the approximate estimate of the cost of the improvement of said Colerain avenue, which was attached to the resolution declaring the necessity for such improvement, contained, among other items, the following, viz: ‘ masonry, rubble and curbstone, 1,800 perch @ $5, $9,000,’ and the resolution declaring the necessity for the improvement declared that it was necessary to improve said avenue, ‘ by grading, curbing, flagging gutters, bowldering the roadway, and constructing the necessary culverts, drains, or retaining walls (such improvements beiug recommended by the board of public works), in accordance with the plans and profiles on file in the office of the chief engineer of the board of public works, and specifications on file in the office of the board of public works.’
    “ That there were no plans or profiles on file, open to inspection, at the time of the passage of. such resolution, or of the ordinance ordering the same, showing the size or location of any such wall; that the nature of the soil and the size of the wall required, could not be known until the excavation was commenced.”
    
      Second. “ That in such assessment there was included the sum of $1,046.10 for surveying and engineering.
    
      
      “ That all the surveying and engineering done on said avenue was done by the chief engineer of the board of public works and his assistants.
    “ That said engineers were all in the regular employ of said defendant, the city of Cincinnati; at a fixed salary, paid out of the general fund of said city.
    “ That such sum of $1,046.10 was arrived at in the following way: The cost per hour to the city of Cincinnati of ■each engineer, at the rate paid him for a salary, was ascertained, and then, for each hour any such engineer was necessarily employed on such improvement, the cost-to,the ■city of employing him, ascertained as above, to-wit, a proportional part of such salary, was charged against the improvement of said avenue, and included in said asessment.”
    
      Third. “ That in such assessment there was included the sum of $695.31 for superintending.
    “ That this sum was paid out by the city of Cincinnati in ■employing superintendents to superintend this particular improvement, and that such superintendents are not in the regular employ of the city, and were hired by the city as needed to oversee work, and to prevent any misconduct on the part of the contractor, and see that the work.was prop.•erly done according to contract.”
    
      Fourth. “ That in such assessment there was included $4,256.24 the cost of certain lateral and cross drain-pipe, which, in the opinion of the board of public works of the •city and of the chief engineer, were necessary to make the improvement in a good and workmanlike manner.”
    Upon the findings of fact, the court, as conclusions of law, found that the first, third and fourth items of expense as above stated, were properly included in the assessment against the property of the plaintiffs ; and that the second item was improperly included in the assessment, and a decree was entered accordingly.
    On petition in error filed by the plaintiffs below, and cross-petition in error filed by the city of Cincinnati, in the Superior Court of Cincinnati in general term, the findings and decree of that court, in special term were affirmed.
    
      By these proceedings the plaintiffs below seek the reversal of the judgment of the court below as to the first, third, and fourth items of expense, and the city, one of the defendants below, by cross-petition in error, seeks the reversal of the judgment as to the second item of expense.
    
      Coffin § Mitchell, and Cole § Cox, for Longworth:
    I. Before the city authorities can improve a street they must pass a resolution to improve, and all plans and profiles relating thereto must be recorded and kept on file in the office of the city civil engineer, or clerk, open to the inspection of all parties interested. See Municipal Code, § 563, as amended; 67 Ohio L. 81; S. & S. 803, § 28; p. 834,. §§ 130, 131; Peck’s Municipal Code, 197, 198, and notes.
    This resolution is a condition precedent. 27 Ohio St. 325.
    1. The resolution in this case does not include the stone wall along the canal bank. The resolution refers to and limits the improvement to the plans and profiles on file. The plans and profiles do not set out this wall, nor relate to it.
    2. This wall is not strictly a retaining wall. Retaining walls are built to prevent the earth from sliding upon a street. This wall was built to keep the water in the canal. It is a retaining wall to the canal, and not to the street; and hence, property owners upon the street should not be-specially assessed for the cost of the wall.
    3. It is not an improvement of the street. It is not a part of the street. It is necessary, if necessary at all, whether a street is there or not. It is an independent improvement, and, as such, if made by the city, should be-ordered by resolution, and the expense paid out of the-general fund. See § 539 (as amended'- April 18, 1870), 67 Ohio L. 80; 69 Ohio L. 59; 70 Ohio L. 126; § 563 of the Municipal Code; 18 Ohio St. 85; 24 Ohio St. 126; 18 Ohio, 161.
    II. The salary of the engineer forms no part of the expense of this improvement. The engineer was employed at a fixed salary, and, unless there is express authority to-divide up and apportion and charge his salary among the various works in which he must be employed, it can not be-done. Jonas v. City, 18 Ohio, 323; § 544 of the Municipal Code; 18 Ohlo, 161; 22 Ohio St. 584. The same is true-of the salary of the superintendent.
    
      Bates, Perkins 8; Goetz, for the city:
    I. Section 576 of the municipal code designates how-payment for the cost of making street improvements may be made. Section 544, what items of expense may be included in the assessment. It is undoubtedly the meaning-of section 544 that the expense of everything is to be included in the assessment.
    The services of an engineer were necessary in making an improvement of the kind in question, and the cost and expense of that officer may be properly included in the assessment. But it is said this is not so in this case, for the engineer was in the employ of the city at a fixed salary.
    The finding of facts show that the item for engineering was arrived at by charging against the improvement the time each engineer was employed on it at the rate paid him for a salary by the city.
    The engineers’ salaries are paid out of the general fund of the city, and when the cost of engineering, arrived at as above, on any improvement, is collected by assessment, it is paid back into the general fund.
    The court below said we could not charge for this item because the work is done by salaried officers.
    We say, under the course of proceedings adopted by the city, these engineers are not paid out of the general fund for all their time. Eor so much of their time as is spent on local improvements they are paid by assessment just as fully as though they had been hired for that particular improvement. True, their pay is advanced from the general fund, but it is paid back from the assessment. It can make no difference to the property-owner whether he pays for the engineering iu this way, or for an engineer hired for the particular purpose.
    
      If the city finds that, by buying drain-pipe by the 100,-000 feet, it can get better pipe at a less price than if the pipe be bought by the 1,000 feet, and hence buys large quantities and keeps it always on hand, using some for general purposes, and when it is wanted for local improvements, furnishes it to the contractor at the reduced price, and then assesses for it, surely, the property-owner ought not to complain.
    The only question for the property-owners in the case of either the charge for engineering or drain-pipe is, were the charges fair and reasonable 'i
    
    II. As to the cost of superintendency, under section 544 of the municipal code, this item is properly included in the assessment. The amount included in the assessment is the amount paid out by the city in hiring a man to superintend this particular improvement. He was not and is not in the employ of the city, and it was a necessary expense.
    III. As to the charge for building the wall between the canal and the street.
    This wall was a part of the improvement. The cost of it was a necessary expenditure for the making of the improvement of Colerain avenue ; and the general rule that a grant of power to do a specific thing carries with it power to do all things necessary to carry into execution the power granted, applies: The city having the power to improve the street, had the power to do all things necessary for that purpose.
    The objection that there were no plans or profiles on file for the wall is answered by the fact that the only plans and profiles necessary for building a wall, are working plans and profiles, and, as the findings show, it could not be determined before the work was commenced how large and just where the wall must be.
   G-ilmore, J.

The questions raised by the petition in error, and that raised by the crvss-petition in error, will be considered in the order in which they arise on the record.

First. Did the court in special and general term err in holding, as matter of law, that the cost of the stone wall,, along the canal, was properly included in the assessment?

It is claimed by counsel for plaintiffs in error, First, that the 19th clause of section 199 of the municipal code empowered the city to build the wall in question as an improvement to the canal, the expense of which, under section 601, could have been assessed and collected in the manner pointed out in chapter 49 of the code; and that the wall ought to have been built under the provisions of the sections named; but, that, regarding it as the building of a-wall for the improvement of the canal, the provisions of chapter 49, relating to special assessments to pay the expense of such an improvement, has not been complied with, and,, hence, the expense can not be assessed and collected.

If this claim is held to be untenable, then, in the second place, it is claimed that under sections 5 and 10 of the act of May 8, 1861 (S. & S. 63, 65), it was the duty of the lessess of the public works of the state to rebuild the wall.

But if wrong in both these respects, it is claimed, in the-, third place, that it may fairly be held to be a “ levee” or “ embankment,” mentioned in section 539 of the code, the cost of which shall be paid by the city out of the general fund. In any event, it is, in the fourth place, claimed that the building of the wall was a separate and distinct improvement from the grading, bouldering macadamizing, etc., a street, and is not one of the “ necessary retaining walls,”’ nor any other “ necessary expenditure” for the improvement of the street.

The record furnishes no predicate for these claims or either of them. The force they possess in this case, if any, rests solely upon the assumption, that either the city or lessees of the public works of the state had power to build the wall under the sections of the statutes cited, and that from this, it will conclusively follow that the city was not authorized to build the wall as a part of the improvement of Colerian avenue.

Eor the purposes of the argument let it be conceded that the assumption is true, and it will not necessarily follow that the conclusion is sound. The city may have had the power to build the wall in either of the modes suggested by ■counsel, and also in the mode that it was built. If so, it would simply be empowered to do the same thing by different methods, and it would be clothed with a discretion as to which it would adopt. In such a case, if one of the methods was adopted, all the powers conferred upon the •city by that method could be exercised and carried into •effect, notwithstanding the existence of the other methods by which the same thing might have been done in a different way ; and the fact that it may have been the duty •of the state or its lessees to have built the wall, would constitute no limitation upon the power conferred upon the •city, in reference to the same thing.

Then the controlling question on this point is: Was the •city authorized to build the wall in question as a part of the improvement of the Colerian avenue?

The 18th clause of section 199 of the municipal code -confers power upon the city, in general terms, to make the improvement. Section 544 provides that the cost of the improvement shall include the expense of construction, •enumerating many items specially,li and any other necessary ■ expenditure.” Under this latter clause, the determination ■ of what constitutes the “ necessary expenditure ” of a given improvement, is devolved upon the city council.

In deteiunining whether items of non-enumerated expenditure are or are not necessary, the council is clothed with discretionary power, and where action has been had • it will not be presumed that this discretion has been abused. But in addition to this, on the trial, the court found, among • other things, the fact to be “ that it was impossible to improve said avenue between Central avenue and Center street unless this wall, so assessed for, was first built; and that the improvement of said avenue made it necessary to ■ build said wall,” etc. There being no question as to the power of the city to make the improvement, this finding • of fact, in connection with the other findings of fact on this ■.point, clearly shows that this wall was an item of necessary expenditure ill making the improvement, and, hence, that the cost of it was properly included in the assessment.

It is further objected, that the resolution declaring the improvement to be necessary, does not include this wall, nor do the plans and profiles set it out. This objection is technical, rather than substantial. The ordinance did declare that it was necessary to improve the avenue “ by grading, curbing, flagging gutters, bowldering the roadway, .and constructing the necessary culverts, drains, or retaining walls,” etc. Section 563 only requires the “ plans and profiles relating thereto,” to be recorded. We do not under.■stand that this would require the specifications of every item of expense to be set out. It was, however, stated that retaining walls were necessary, and estimates for masonry were made and filed. If the strictness insisted upon was applied to this case, it would have been impossible to have proceeded with the improvement, for the size •of the walls could not have been known or estimated in .advance. The finding of the court, on this point, is as follows : “ The nature of the soil, and the size of the walls required, could not be known until the excavation was •commenced.”

We think this objection is not sufficient to entitle the plaintiffs to the injunction asked for.

Second. Did the courts below err in holding that the charge for engineering was improperly included in the assessment, as assigned for error iu the cross-petition ? Notwithstanding section 544 does provide, that the costs of the improvement of a street, includes “the expense of the preliminary and other surveys,” yet we think that this has reference only to cases in which the engineer doing the work was employed for that special purpose, and does not apply to work done by engineers appointed for a definite period of time, at fixed salaries, under the provisions of .section 4 of the act of March 17, 1876 (73 Ohio Laws, 44). The finding of fact shows that the work wras done by the ■chief engineer of the board of public works and his assist.ants, all of- whom were in the employ of the city, at fixed salaries, and paid out of the general fund of the city; and also shows the manner of arriving at the amount that was charged and assessed for this improvement.

It is sufficient to say, that when the salaries of these engineers were paid from the general funds of the city, as required by law, that was the end of it, unless there was some law expressly authorizing the charge and assessment that was made iu this case, for the purpose of reimbursing the city for the amount so paid; and, inasmuch as there is no such law, the courts did not err in holding that the charge was improperly included in the assessment.

Third. Did the court err in holding that the charge for “ superintending” was properly included in the assessment?

The difference between the superintendent and the engineer in this case is, that the former was not a salaried officer, while the latter was. This appears from the finding of fact on this point. The 4th ■ section of the act of March 17, 1876, does not require superintendents to be appointed for a fixed period, and where they are not so appointed, there is no provision for the payment of their services when employed under special contract, as in this case. We suppose that, under section 544 of the code, the proper city officers could, in their discretion, if they deemed it necessary, employ a superintendent for this particular work, and thereby incur the expense agreed to be paid for his services; and we see no reason why this expense would not constitute a proper and necessary expenditure in the construction of the improvement. If so, then a charge for such services would constitute a necessary item of expenditure in the construction of the work, and was properly included in the assessment.

Fourth. Did the court err in finding that the cost of laying drain-pipe along the avenue was properly included in the assessment ?

This point is not insisted upon in argument by counsel for plaintiff in error; and we need only say that it clearly appears, from the finding of fact, that these lateral and cross drain-pipes, as laid, “ were necessary to make the improvement in a good and workmanlike manner,” and the cost thereof was, therefore, properly included in the assessment.

There are no errors apparent on the record.

Okey, J.,

dissenting. The court properly hold that there-can he no assessment for services of the civil engineer, because he is an officer paid by salary from the city treasury but the court further hold, erroneously, as I think, that an assessment may be made'for services of the superintendent.,, who is merely an assistant civil engineer, employed temporarily and locally, and paid a compensation of three dollar’s a day out of the city treasury. There is no distinction in principle between these items of expense, for the engineer and superintendent were alike officers with respect to this improvement. Nor do I think the cost of the wall was-properly included in the assessment. True, the language, “ any other necessary expenditure,” is broad; but it is a-grave mistake to suppose the legislature intended to invest municipal corporations with unlimited power to improve-avenues, and assess the cost on the abutting property. There is a limit somewhere; and, in my opinion, that limit is much exceeded when the cost of a work, like the wall in question, which is only partly within the avenue improved,, is assessed on the abutting property; for it was plainly the-duty of the state and the city to keep’ the wall in repair.

The principle has, in substance, been recently incorporated into our legislation, that in making local assessments, the statutes providing therefor must be strictly construed, except as to matters of form. 75 Ohio L. 326, § 60. That provision does not apply here, because the assessment was made before the statute was passed. But it is a principle existing independently of that act, that statutes relating to such assessments must be strictly construed. Oooley on Taxation, 209; Burroughs on Taxations, 471; Dillon on Mun. Corp. § 55, lb. ch. 19. And that principle, I think,, has been disregarded in this case.

. Motion overruled.  