
    Baxter et al. v. Van Houter, Auditor, et al.
    
      County sanitary sewers — Section 6602-1 et seq., General Code —Special assessment made after improvement completed, exceeds value of property — Property owner m,ay enjoin assessment without exhausting statutory remedies — Section 12075, General Code.
    
    Under Sections 6602-1 to 6602-23, General Code, where a special assessment for a sanitary sewer is made after the improvement is completed, a taxpayer whose real property is assessed in excess of the value of the property as improved may apply for injunction under Section 12075, General Code, without first exhausting his statutory remedies.
    (No. 19769
    Decided June 15, 1926.)
    Error to the Court of Appeals of Trumbull county.
    This was an action filed in the court of common pleas of Trumbull county, Ohio, praying that the auditor of the county be restrained from placing on the tax duplicate any further assessment against certain premises situated in Trumbull county, and that the treasurer be restrained from collecting, or attempting to collect, any future installments of such assessment, and praying that the assessment and levy in question be declared null and void, and that the treasurer be directed to repay to the plaintiffs all sums already paid by them under such assessment.
    In the court of common pleas trial was had to the court, and decree and judgment were given for the defendants. Upon appeal in the Court of Appeals the plaintiffs’ petition was dismissed. A finding of facts was made in the Court of Appeals which is as follows:
    On December 12, 1921, the board of commissioners of Trumbull county, Ohio, pursuant to Section 6602-1 of the General Code of Ohio, adopted a resolution to establish Brookfield sanitary sewer district No. 2. The territory included in this district composed about 500 acres of land in the township of Brookfield, county of Trumbull. There are about 300 dwelling houses within this territory. About 100 acres of land included in this district is owned by the Standard Home Company, had been platted, and sewerage and water systems constructed by it. Several lots had been sold out of this tract prior to the establishment of the sanitary sewer district. This sewerage system had an outlet in a disposal plant located on the lands of the company.
    After the resolution of December 12, 1921, the county commissioners proceeded with the necessary legislation for the construction of a sewer and water supply system in said sanitary sewer district. They provided that the entire cost and expense of said sewer and water supply system should be assessed against the benefited property within said sewer district, and gave in detail the boundaries of that part of the sewer district so to be assessed, which included the lands of the plaintiffs in error, and also the 100 acres then or formerly owned by the Standard Home Company.
    A resolution was passed providing the manner in which the assessments should be paid, viz., in 38 semiannual payments, with interest on deferred payments at the rate of 5 per cent, per annum. On September 16 and 23, 1924, notice of the assessment was published in the Warren Daily Tribune-Chronicle, and was as follows:
    “Legal Notice.
    “Notice of Assessment for Brookfield Sanitary Sewer District No. 2, Sanitary Sewer and Appurtenances.
    “Notice is hereby given that an estimated assessment of the cost and expense of construction improvement of No. 1 Brookfield sanitary sewer district No. 2, for sanitary sewers and appurtenances, has been made by the county sanitary engineer of Trumbull county, Ohio, and is now on file in the office of the board of county commissioners of Trumbull county, Ohio, in the courthouse, Warren, Ohio, for the inspection and examination of all persons interested therein.
    “Such assessments have been apportioned in accordance with the special benefits conferred upon the lots, lands and real property described, to wit: Being all of original lot No. 64 and parts of original lots Nos. 80 and 81 in the original survey of Brookfield township, Trumbull county, Ohio, as shown by the records of Trumbull county, Ohio, and are further described as follows, to wit:
    “Said original lot No. 64, lots 1 to 14 inclusive and lots 16 to 40 inclusive. Baxter Plats, vol. 178, page 495, lots 1 to 11 inclusive, and Richards No. 1 Plat, vol. 6, page 22, lots 1 to 5, inclusive.
    “Said original lot No. 80, lots 3 to 10 inclusive and lots 12 to 19 inclusive and Service Park Plat, vol. 6, page 13, lots 307 to 499 inclusive.
    
      “Said original lot No. 81, lots 1 to 4 inclusive, lot No. 6 and lots 8 to 12 inclusive. Standard Home Plat, lots 234 to 241 inclusive. Baker Plat, vol. 4, page 106%, lots 1 to 11 inclusive and 13 to 23 inclusive, Baker Plat No. 2, vol. 10, page 16, lots 1 to 3 inclusive, Bartholomew Plat, vol. 4, page 85, lots 1 to 23 inclusive, Bartholomew & Tribby Plat, vol. 6, page 66, lots 24 to 43 inclusive and lots 45 to 74 inclusive and Masury Center Plat, vol. 9, page 7, lots 75 to 174 inclusive and lots 177 to 206 inclusive and Flower-Masury Plat, vol. 12, page 40, lots 1 to 104 inclusive.
    “The 6th day of October, 1924, at 10:00 a. m., Central time, is hereby designated as the date and time when objections to the apportionment made in such assessment will be heard by the board of county commissioners of Trumbull county, Ohio, in their office at the courthouse, Warren, Ohio.
    “All objections thereto must be in writing and must be filed with the board of county commissioners within ten (10) days from and after September 23, 1924, the date of the last publication of this ‘Notice of Assessment,’ otherwise said objections shall be deemed waived.
    “Board of County Commissioners:
    “J. W. Van Wye.
    “A. O. Burnett,
    “I. B. Jacobs.
    “Frank F. Musser, Clerk.
    “Board of County Commissioners.”
    This Tribune-Chronicle was a daily paper published in the city of Warren, county of Trumbull, and had a circulation of about 8,000 in the city of Warren and Trumbull county. This paper had only one subscriber in the township of Brookfield, and no copies were received by any of the residents within said sewer district. Plaintiffs in error lived in the sewer district and from observations knew the sewer and water supply system was being constructed, but never saw a copy of the paper containing notice of the assessment, and had no actual knowledge of the assessment, or the time, place where, or manner in which to make objections. The construction of the sewer was completed in August, 1924, and the assessment filed and notice thereof published in September, 1924.
    The Standard Home Company abandoned its disposal plant and connected its local sewer with the main trunk sewer constructed in said sanitary sewer district. An agreement was entered into between the county commissioners and the Standard Home Company, whereby the Standard Home Company paid the county commissioners $3,000 in four equal payments covering a period of two years, without interest, for the privilege of connecting their private sewer to the main or trunk sanitary sewer. No other or further attempt was made to assess the property of the Standard Home Company or the lots they had sold within the district, except some 17 lots that had not been provided with local sewerage by the private sewer of the Standard Home Company.
    Plaintiffs in error own seven lots in said sewer district, to wit, Nos. 188, 189, 190, 191, 192, 198, and 199. The total assessments against said lots for sewer and water are as follows:
    Without Int. ' With Int,
    On lot No. 188_______________________l_ $317.80 $494.38
    On lot No. 189 ___________ 255.70 387.86
    On lot No. 190 __________________________ 308.20 479.18
    On lot No. 191 __________________________ 19.50 30.78
    On lot No. 192_______ 19.50 30.78
    On lot No. 198 ________________ 291.70 486.40
    On lot No. 199 __________________________ 276.70 387.86
    The fair market value of these lots after the improvements were constructed was not to exceed $50 per lot.
    The Court of Appeals dismissed the petition of the plaintiffs upon the ground that the plaintiffs had been furnished an adequate remedy at law, namely, the right to file objections to the assessment with the county commissioners on or before October 6, 1924, and not having done so that they were not entitled to relief in equity through the benefits of Section 12075 of the General Code.
    The case comes into this court upon allowance of motion to certify the record.
    
      Messrs. Gillmer & Gillmer, for plaintiffs in error.
    
      Mr. W. W. Pierson, prosecuting attorney, Mr. Geo. T. HecMinger, Mr. C. C. Crabbe, attorney general, Mr. Herbert D. Mills, Mr. B. F. Denison and Mr. W. L. Fleming, for defendants in error.
   Allen, J.

It is conceded that the assessment against at least five of the lots owned by the plaintiffs in error was greatly in excess of the value of the lots after the improvement was made. It is also conceded that the plaintiffs had no actual notice of the assessment and that the improvement was completed before the assessment was made. The Court of Appeals dismissed the plaintiffs’ petition, evidently under the authority of the cases of Bashore v. Brown, Treas., 108 Ohio St., 18, 140 N. E., 489, and City of Cuyahoga Falls v. Beck, 110 Ohio St., 82, 143 N. E., 661.

In the Beck case, supra, however, the court specifically declined to apply the doctrine of that holding to cases where the assessment was made after the improvement was completed, saying:

“It is plain that the property owner who is assessed for a certain amount only after the improvement is completed is in a difficult position. He cannot. question the amount of the assessment before the completion of the improvement, because he was not notified of the amount of the assessment before the improvement was finished. In such case it might be questioned whether a property owner’s failure to avail himself of his statutory right to object would bar him from relief in a court of equity, and we express no opinion herein upon that specific point. In this case, however, no such problem arises, for the property owners had notice of the definite amount to be assessed against them long before the pavement was finished, and yet stood by and allowed the expensive improvement to proceed to completion.”

Moreover, an assessment against property in excess of the value of the property after the improvement is made constitutes, in fact, not a special assessment, but the taking of property for public use without compensation. Chamberlain v. City of Cleveland, 34 Ohio St., 551; Cincinnati, Lebanon & Northern Ry. Co. v. City of Cincinnati, 62 Ohio St., 465, 57 N. E., 229, 49 L. R. A., 566; State ex rel. Shafer v. Otter, County Surveyor, 106 Ohio St., 415, 140 N. E., 399. While the Cincinnati, Lebanon & Northern Ry. case, supra, has been overruled upon another proposition in the Otter case, supra, its statement of the above principle still stands as law.

Cases could be multiplied in support of this holding. Hutcheson v. Storrie, 92 Tex., 685, 51 S. W., 848, 45 L. R. A., 289, 71 Am. St. Rep., 884; Board of Directors of Crawford County Levee Dist. v. Dunbar, 107 Ark., 285, 155 S. W., 96 (1913); State ex rel. Oliver Iron Mining Co. v. City of Ely, 129 Minn., 40, 151 N. W., 545, L. R. A., 1915E, 815; Power v. City of Helena, 43 Mont., 336, 116 P. 415, 36 L. R. A., (N. S.), 39; Alden v. Todd County, 140 Minn., 175, 167 N. W., 548 (1918); Futscher v. City of Rulo, 107 Neb., 521, 186 N. W., 536 (1922); City of Denison v. Smith, (Tex. Civ. App.), 260 S. W., 207 (1924).

A recent case to the same effect is City of Louisville v. Bitzer, 115 Ky., 359, 73 S. W., 1115, 61 L. R. A., 434, which holds in the syllabus that an abutting owner cannot be assessed for a street improvement for an amount equal to or in excess of his property’s value. In the opinion it is said:

“The rule, also, is that, while these assessments rest upon the basis of benefits or presumed benefits to the property assessed, it is not essential to their validity that actual enhancement in value or other benefits to each owner should be shown; the judgment of the city council being conclusive as to the propriety of the improvement. [Citing Kentucky holdings.] On the other hand, it is held that when, owing to extraordinary facts, the presumption on which the rule rests does not apply, and to force the owner to make the improvement is to confiscate his property without compensation, this is spoliation, and will not be enforced. * * * In other words, the judgment of the legislative municipal authorities is held conclusive in all cases of doubt as to these matters; but, where the total value of the property taxed after the improvement is made is less or no more than the cost of the improvement, there is no room for difference of opinion — that to enforce the lien is to take from the owner his property without compensation. # * * It may be objected that logically the rule should be to reject all assessments in excess of the benefits received by the property owners, and not to confine its operation to cases where the assessment equals the value of the property when improved. But in every system of taxation exact equality of benefits among those taxed is never attainable. * * * But no department of the government can take the property of the citizen for public purposes without just compensation, and when the entire property is taken to pay for a public improvement there is no room for a presumption as to the benefits received, but a case of spoliation is shown.

“The proof here showing conclusively that the cost of the improvement far exceeded the entire value of the property assessed after the improvement was made, the circuit court properly refused to enforce the lien upon the property.”

Under these circumstances it is not necessary to allege, nor prove, that the plaintiffs have pursued the statutory remedy provided, and they may avail themselves of Section 12075, General Code, and apply for injunction in a court of equity.

Considerable discussion is expended in the briefs of both plaintiffs in error and defendants in error upon the constitutionality of the statutes involved herein. This question, however, was not raised in any of the pleadings. The plaintiffs attacked the constitutionality of the particular assessment in question, but nowhere attacked the constitutionality of the statutes. Nor was that question involved in the judgment of either court. We therefore make no holding upon that particular point.

The finding of facts of the Court of Appeals shows that as to lots Nos. 188,189,190, 198, and 199, the assessment both with and without interest greatly exceeds the fair market value of the lots after the improvements were constructed. There being no contest upon the facts as to these lots, and such an assessment constituting a taking of private property for public purposes without compensation, final judgment must be entered as to these lots in favor of the plaintiffs in error herein.

The finding of facts of the Court of Appeals further shows that as to lots Nos. 191 and 192 the assessment is less, both with and without interest, than the fair market value of the lots after the improvements were constructed. As to these lots the plaintiffs in error were entitled to be heard in the Court of Appeals.

The cause therefore as to these two lots is remanded to the Court of Appeals of Trumbull county for further proceedings in accordance with this opinion.

Judgment reversed and final judgment for plaintiffs in error as to lots Nos. 188, 189, 190, 198, and 199, and judgment reversed as to lots Nos. 191 and 192, and cause remanded for further proceedings in accordance with this opinion.

Judgment reversed.

Marshall, C. J., Kinkade and Robinson, JJ., concur.  