
    Falor v. Mong, Aud., et al.
    (Decided April 12, 1934.)
    
      Mr. Dwight G. Hay, for plaintiff.
    
      Mr. Ray B. Watters, prosecuting attorney, and Mr. Clyde B. Macdonald, for defendants.
   Stevens, J.

This cause is before this court upon appeal from the Court of Common Pleas of Summit county.

On June 13, 1928, the Board of County Commissioners of Summit county passed a resolution, under Section 6602-2, General Code, declaring the necessity of constructing a sewer in the easterly part of Summit county, to be known as Summit county sanitary improvement No. 31, main sewer district No. 5.

On June 16 and June 23, 1928, publication of the passage of said resolution was had, in which publication was stated the place where the plans and specifications could be seen and, the tentative assessment roll examined; and on June 20, 1928, a notice by mail was sent to the plaintiff advising him of the time and place for the hearing of objections and that his property would be assessed for said improvement.

On July 13, 1928, a hearing upon the objections filed was had, but plaintiff filed no objection to the improvement nor to the assessment of his property, and the uncontradicted evidence shows that plaintiff did not receive the notice, nor see the advertisement, and did not know that his property was to be assessed until receipt of his tax bills after the making of the improvement.

On August 10, 1928, a resolution to revise the assessment district by removing therefrom certain property was passed by the county commissioners. On September 17, 1928, an amended resolution of necessity was passed by the board of commissioners, wherein the size of the assessment district was reduced.

On September 19 and September. 26, 1928, publication of the passage of the amended resolution of necessity was made; and October 15, 1928, was set as the date, and the office of the county commissioners named as the place, for the hearing of objections.

On October 15, 1928, the hearing upon objections filed was had, but no notices by mail were theretofore sent to the property owners to be assessed, advising them of the time and place of the hearing, and that their respective properties would be assessed for said improvement. Plaintiff again filed no objections to the improvement, nor to the assessment of his property.

The improvement was thereafter constructed in accordance with the plans and specifications, and plaintiff’s premises assessed for $1,453.12.

The petition herein filed prays for an injunction against defendants, enjoining them from collecting said assessments, on two grounds: First, that plaintiff had no notice of the intention of the commissioners to construct said sewer and to assess his premises therefor, and, second, that plaintiff’s premises receive no benefit from the construction of said improvement.

The evidence herein discloses that plaintiff is the owner of a farm of 140 acres, which is used solely for farming purposes, 28 acres of which have been assessed at approximately $52 an acre for the construction of said improvement; that all of the property assessed is topographically below the elevation of the terminus of said sewer, and that no part of said premises can be served by said sewer by gravity; further, that the nearest point of said premises to the terminus of the sewer is 1,950 feet therefrom, and that before said premises could utilize the sewer in question it would either be necessary to install a pumping station to pump the sewage up to the level of the sewer, or to build 7,000 feet of additional sewer through the adjoining county on the east, to wit, Portage county.

From a consideration of the competent evidence, we are unanimously of the opinion that the premises of plaintiff sought to be assessed receive no present or potential benefit from the sewer constructed.

Defendants, in their answer, say that plaintiff never filed any objection in writing to the assessments made on his land, and has therefore waived all objections 'he might have made to said improvement or said assessments.

Reliance is placed by defendants upon the case of City of Cuyahoga Falls v. Beck, 110 Ohio St., 82, 143 N. E., 661, as substantiating their contention that plaintiff, having failed to avail himself of his statutory right to object to the assessment, cannot now invoke the equitable remedy of injunction; the assessment herein having been made before the construction of the improvement and upon the basis of benefits.

A consideration of the facts in the instant case impels us to the conclusion that the case here presented is identical with the Beck case, supra, except in the matter of benefit and actual notice of the improvement. In that case it was stated by Allen, J., at page 92:

“When the record shows, as this does, that the largest property owner attacking this assessment is, among other parcels, holding land abutting upon this improvement for allotment purposes, it would be flying in the face of experience to claim that his property has not been specially benefited by this extensive street improvement. Upon the facts, therefore, this claim that no benefits have been conferred upon the property assessed cannot be maintained. ’ ’

This language shows that in that case there was some benefit to the property, assessed, while herein we specifically find that there was no benefit whatsoever to the property assessed, and that fact makes the Beck case distinguishable from the case at bar.

Moreover, in the Beck case there was actual service of notice upon the owner of the land assessed, and in the case at bar, while the statutory notice was given, it was not received by plaintiff, and he had no actual notice that the improvement was to be made, or that there was any claim that his property was to be benefited, or that it.was to be assessed to pay for any part of the improvement.

The question presented, as we see it, is this: May a property owner, who had no actual notice of the improvement, maintain a suit for injunction, under Section 12075, General Code, against an assessment levied upon his property for a sewer, where no benefit whatsoever is conferred upon his property by the improvement, and where, in the nature of things, there can be no benefit, special or otherwise, to his property from the proposed improvement, without first exhausting his remedy of objecting to the improvement and assessment under Section 6602-2, General Code, and then appealing to the Probate Court as provided in Section 6602-3&?

In the case of Blue v. Wentz, 54 Ohio St., 247, at page 253, 43 N. E., 493, Minshall, Judge, stated the following:

“An assessment on lands presupposes some special benefit to the lands to be assessed, derived from the improvement for which the assessment is made. When, in the nature of things, there can be no special benefit to the lands from the proposed improvement, an assessment made on them for any part of the cost of the improvement, would be a simple taking of the property of one person for the benefit of another; and the assessment would be void.”

In the case of Chamberlain v. City of Cleveland, 34 Ohio St., 551, it was stated, on page 562 of the opinion, that:

. “If a sum is exacted in any instance, in excess of the value of the special benefits conferred, it is, as to such excess, in that instance, private property unjustly taken for public use without compensation to the owner.”

In the case of Walsh v. Barron, Treas., 61 Ohio St., 15, 55 N. E., 164, 76 Am. St. Rep., 354, syllabus 1 states:

“1. ,The fundamental principle underlying an assessment made on property for the cost and expense of a local public improvement is, that the property is specially benefited by the improvement beyond the benefits common to the public, and that a ratable assessment of the property to the extent of these benefits violates no constitutional right of the owner, and is just and proper. But it can in no case exceed the benefits without impairing the inviolability of private property.”

It was held in the case of Alma Coal Co. v. Cozad, Treas., 79 Ohio St., 348, 87 N. E., 172, 20 L. R. A. (N. S.), 1092:

“1. The provisions of the constitution forbid not only the taking of the private property of one, but as well the laying of an imposition upon it, for the sole benefit of another.”

See, also, Crim v. Town of Philippi, 38 W. Va., 122, 18 S. E., 466.

It would seem to be properly deduoible from tbe foregoing quotations that, where an assessment is levied upon property for a public improvement, and no benefit, present or potential, accrues to the property assessed by reason of the improvement, the assessment is void ab initio.

Under the Constitution, the public is denied the power to make a special assessment where no benefit is conferred, and therefore benefit is a necessary predicate to the exercise of such power, and without it there is no foundation for the assessment and no jurisdiction to make it.

May the property owner, then, who has no actual notice of the improvement, by his failure to- observe certain mechanics by way of objection and appeal, vivify and make valid the act of a legislative body, which, from its inception, never had any legal validity so far as the property in question was concerned?

We think not.

If the assessment was void ab imtio, it is our conclusion that it was a legal nullity, entitled to no consideration from the property owner and requiring no action from him until its collection. was attempted. Then, under the provision of Article I, Section 16, of the Ohio Constitution, and, further, by virtue of Section 12075, General Code, we believe the property owner so sought to be assessed might properly avail himself of this equitable remedy of injunction, without having first exhausted his statutory remedies. See, also, Horton v. Driskell, 13 Wyo., 66, 77 P., 354, 3 Ann. Cas., 561; Armstrong v. Ogden City, 12 Utah, 476, 43 P., 119; Rapid Ry. Co. v. Schroeder, 190 Mich., 684, 157 N. W., 422.

It is suggested that the case of Bashore v. Brown, Treas., 108 Ohio St., 18, 140 N. E., 489, requires the property owner to exhaust his statutory remedies as a condition precedent to his right to maintain an action for injunction under Section 12075, General Code.

It will be observed, however, that there Is a saving clause in each of the syllabi of that case; the first being “Where county commissioners * * * have not otherwise exceeded their statutory authority * * * ’ ’ and the second being “if the proceedings are otherwise legal.”

In the instant case, there being no benefit, the attempt to assess plaintiff’s property violated his constitutional right, and hence did exceed the statutory authority of the commissioners, and made the proceedings, as to plaintiff’s property, a violation of the supreme law of this state, and hence illegal.

We hold that, where a board of county commissioners causes an assessment to be levied upon real property to pay part of the cost of construction of a sewer, and no present or potential benefit to the- property assessed ensues from the improvement, Section 32075, General Code, provides a concurrent remedy to the property owner, which may be invoked by him to enjoin the collection of the assessment, and this without first exhausting his statutory remedies of objection to the improvement and assessment, and appeal to the Probate Court.

Our conclusion in this matter is fortified by a consideration of the provisions of Section 6602-3g, General Code, for it seems apparent that the Legislature, by the enactment of that section some three years after the decision in the Beck case, and about a year after the decision in the case of Baxter v. Van Houter, Aud., 115 Ohio St., 288, 153 N. E., 266, intended that the law as stated in the Beck case should be construed, at least to the extent herein indicated, as not applying to improvement proceedings by county commissioners under Section 6602-1 et seq., General Code.

Inasmuch as our conclusion upon the second contention of plaintiff disposes of this action, we do not specifically pass upon' the question of lack of notice, except to observe that Section 6602-2, General Code, requires only tbe mailing of notice, and not proof of its receipt; and in this case the fact of mailing notice to plaintiff is conceded by stipulation.

A decree may be prepared granting to plaintiff the injunction prayed for and enjoining the defendants from collecting the assessment levied upon the premises of the plaintiff for the construction of said sewer

Injunction allowed.

Washburn, P. J., and Funk, J., concur.  