
    Shoemaker et al. v. The City of Cincinnati et al.
    
      Owner of land assessed for street improvement — Not entitled to injunction against collection, when — Assessment not unlawful — Because assessed hy abutting foot — If amount does not exceed benefit.
    
    1. An owner of land which has been assessed for the improvement of a street is not entitled to an injunction restraining the collection of such assessment where a statute in all material respects the same as the one under which the improvement was made and the assessment levied, and the bonds of the municipality to pay the cost issued, had theretofore • been adjudged valid by the highest court of the state, simply because similar legislation was held by the same court long afterwards to be in violation of the constitution.
    2. An assessment for street improvements, otherwise lawful, is not rendered invalid because assessed in terms by the abutting foot, where it appears that the amount of the assessment did not exceed the special benefit to the land. Schroder v. Overman, 61 Ohio St., 1; Walsh v. Barron, same vol., 15; Walsh v. Sims, 65 Ohio St., 211.
    (Decided June 23, 1903.)
    Error to the Circuit Court of Hamilton county.
    The action below was begun July 15, 1901, in tbe court of insolvency of Hamilton county by tbe plaintiffs in error against tbe City and tbe auditor, to enjoin tbe collection of an assessment for tbe improvement of Mercer street which bad been levied on a lot owned by them on tbe corner of Yine and Mercer streets. It was shown by tbe petition that tbe ordinance providing for tbe improvement was passed by tbe board of legislation of tbe City, February 8, 1897, and tbe ordinance prbviding for tbe payment of tbe costs, tbe issuing of tbe bonds, and tbe levying of tbe assessments, being “levied and assessed on each abutting foot of tbe several lots of land bounding and abutting on Mercer street from Vine street to Walnut street,” was passed by tbe board of administration October 12, 1897. Tbe plaintiff had paid tbe installments for tbe years 1898, 1899 and 1900, and it was to restrain tbe collection of tbe balance that suit was brought.
    Tbe answer of tbe City contained tbe following averment, viz.:
    “Further answering, tbe defendant says that tbe said assessment levied as described in tbe petition is in proportion to tbe special benefits conferred by tbe improvement of Mercer street on said property of tbe plaintiffs and each abutting foot thereof upon which said assessments were levied; that said assessments levied upon said property and each abutting foot thereof, are not in excess of tbe special benefits conferred upon said property and each abutting foot thereof; that said special benefits do, in fact, as to said property, and each abutting foot thereof, fully equal tbe assessments levied thereon, and as to each parcel of land and each abutting foot thereof upon which tbe assessments for said Mercer street were levied, tbe assessments are in proportion to the special benefits conferred thereon by said improvement of said street.”
    In tbe insolvency court a demurrer to this answer was sustained and judgment awarded plaintiffs. On error tbe circuit court reversed this judgment and remanded tbe cause. Tbe plaintiffs ask tbe reversal of the last judgment and affirmance of that of tbe court of insolvency.
    
      Mr. Charles B. Wilby and Mr. Charles E. Tenney, for plaintiffs in error.
    
      The assessment set forth in the foregoing pleadings was levied under section 22646, Revised Statutes. The contention of the plaintiffs in error is, that (1) section 22646, Revised Statutes, is unconstitutional and void; (2) An assessment levied thereunder is a nullity; (3) It will not be sustained either in whole or in part on the ground that the result in a particular case is equitable, or is identical with the result which could have been reached by a valid assessment.
    Section 22646, Revised Statutes, provides a standard for street assessments in three classes of cities, each class containing but one city, which standard differs from that provided by the statutes for the remainder of the state. Therefore, section 22646, Revised Statutes, has not a uniform operation throughout the state, and, being a law of general nature, it violates article 2, section 26 of the constitution of Ohio, and is void.
    The new municipal code has repealed the old statutes on the subject of street assessments and enacted new ones. But at the time the assessment in this case was levied the general law on the subject was section 2264, Revised Statutes.
    This, court held that, under this section the assessment must be according to the actual frontage of the lot, and not according to the number of feet which the lot abutted on the improved street; and that the assessment “must conform to the' principle upon which it was adopted — assessment by the foot front, not by the abutting foot, merely.” Haviland v. Columbus, 50 Ohio St., 471; Toledo v. Sheill, 53 Ohio St., 447.
    To avoid these decisions in the cities of Cincinnati, Toledo and Springfield, the legislature enacted the statute, under which the assessment in this case was levied, and which, the plaintiffs in error contend is unconstitutional. Section 2264b, Revised, Statutes.
    
      (a) Section 2264b, Revised Statutes, applies to three classes of cities, each of which contains only one city. The doctrine of classification of cities has never been sustained in this state except as applied only to the organization and form of government of cities. It has never been sustained when applied to matters existing in such cities, and in cities generally, and of a general nature. When any statute treated not of “all cities of a certain class,” but of “matters of a general nature in all cities of a certain class,” it has invariably been held unconstitutional. Hixson v. Burson, 54 Ohio St., 470; Ampt v. Cincinnati, 56 Ohio St., 47; Cincinnati v. Longworth, 61 Ohio St., 659; Cincinnati v. Steinkamp, 54 Ohio St., 284; State v. Brewster, 39 Ohio St., 653; Falk, Ex parte, 42 Ohio St., 638.
    This doctrine of classification of cities, even as applied to matters of organization, and a fortiori in all its other applications, was strongly condemned by this court in State v. Cowles, 64 Ohio St., 162, and very recently repudiated entirely by this court, and the classification of cities was held unconstitutional and void in Jones v. State, 66 Ohio St., 75; State v. Beacom, 66 Ohio St., 491.
    Section 2264b, Revised Statutes, therefore does not operate uniformly throughout the state, and it remains to consider whether it is a law of a general nature.
    (b) The law is of a general nature if it deals with a subject of a general nature. Kelley v. State, 6 Ohio St., 269; State v. Ellet, 47 Ohio St., 90; State v. Bargus, 53 Ohio St., 94; Campbell v. State, 56 Ohio St., 794; State v. Spellmire, 67 Ohio St., 77.
    
      The subject of taxes and assessments is a subject of a general nature. Commissioners v. Rosche, 50 Ohio St., 103; Gaylord v. Hubbard, 56 Ohio St., 25; Grove v. Leidy, 6 Circ. Dec., 116; 9 C. C. R., 272; Andrews v. Settles, 9 Circ. Dec., 191; 16 C. C. R., 638.
    The subject of streets, roads and highways is a subject of a general nature. State v. Davis, 55 Ohio St., 15; Mott v. Hubbard, 59 Ohio St., 199; State v. Bader, 5 Circ. Dec., 703; 12 C. C. R., 659.
    Section 22615, Revised Statutes, is therefore a law of a general nature, and it does not have' a uniform operation throughout the state. Hence it is~ in conflict with Ohio constitution, article 2, section 26, and is void. And as the assessment in this case was levied solely under the authority of this statute, it was levied under no authority at 'all, and is void.
    The fact that the assessment of the property of the plaintiff, and on each abutting foot thereof is in proportion to special benefits, and does not exceed special benefits, will not validate a void assessment either as a whole or in part.
    The right to enjoin an illegal tax or assessment is conferred by statute (section 5818, Revised Statutes) ; it is not a creature of equity, and is not dependent upon the rules of equity. Hannewinkle v. Georgetown, 15 Wall., 547; Bank v. Hines, 3 Ohio St., 1, 36; Bank v. Debolt, 1 Ohio St., 591; McCoy v. Chillicothe, 3 Ohio, 370.
    The legislature of Ohio,, however, conferred on the courts the jurisdiction thus denied to them. Section 5818, Rev. Stat.; Tone v. Columbus, 39 Ohio St., 281, citing Stephan v. Daniels, 27 Ohio St., 536, and Steese v. Oviatt, 21 Ohio St., 253.
    These citations show conclusively that the sole question in the case is this: Is the assessment illegal? If it is illegal, it must be enjoined; and all questions of equity or of moral obligation are irrelevant.
    
      Mr. Charles J. Hunt and Mr. Albert H. Morrill, city solicitors, for defendants in error.
    A court of equity will not grant relief by injunction against the collection of an assessment, the amount of which has been ascertained according to a rule prescribed by a statute, which, it is claimed, is illegal, unless the petitioner shows that the assessment so made affects him to his prejudice, and in a manner different from that in which an assessment made under a rule prescribed in an admittedly legal statute would have done. Voght v. Buffalo, 133 N. Y., 463.
    The theory of all special assessments is that the property assessed has received special benefits by reason of the improvement, equal to or in excess of the amount of the assessment.
    If this result, viz.: That the assessment does not exceed the special benefits conferred, has been obtained, it. is immaterial what method the assessing board used to determine the amount of the assessment. The assessment is nevertheless valid.
    This court has in its former decisions refused to grant relief to a petitioner when it appeared from an examination of the record that such petitioner was suffering no injury, even though the act which the petitioner complained of was, technically speaking, illegal. The court will recall that after the decision by. the Supreme Court of the United States in Norwood v. Baker, 12 O. F. D., 228; 172 U. S., 269, it was supposed that assessments by the front foot rule had been declared illegal by the United States Supreme Court. After this decision, and previous to the decisión by the same court in French v. The Barbour Asphalt Paving Co., the case of Schroder v. Overman, 61 Ohio St., 1, was submitted to this court. In that case the record showed that the “benefits conferred by the improvement for which the assessment was levied equalled or exceeded the amount of the assessment.” In that case the court sustained the assessment, basing its decision on the ground that the improvement of the street was a benefit to the plaintiff’s property, and that the amount of the benefits to said property was more than the amount of said assessment against the same, and inferentially on the ground that the cost and expense of the improvement had been properly apportioned among the lots and lands benefited thereby.
    The assessment “per abutting foot” even if unauthorized expressly by statute is, when it is also in fact, according to benefits, a “technical error.”
    Proceedings in the improvement of a street are proceedings within the scope of section 79, Revised Statutes. Raymond v. Cleveland, 42 Ohio St., 522; Cincinnati v. Seasongood, 46 Ohio St., 296.
    The jurisdictional steps having been had in the improvement proceedings and expense having been incurred which is a proper .charge against the property, the right to a judgment therefor in favor of the City is given by section 2289. Walsh v. Sims, 65 Ohio St., 211.
   Speak, J.

Plaintiff’s action was based upon section 5848, Revised Statutes, which confers jurisdiction to enjoin the illegal levy or collection of taxes and assessments, and the grounds on which this assessment is claimed to be illegal are two. One that the statute under which the assessment was made, being section 2264b, Revised Statutes, is unconstitutional in that it deals with a subject of a general nature and has not a uniform operation throughout the state; in other words that it applies only to Cincinnati. The other, that the method of assessment, being by the abutting foot instead of according to benefits, renders the assessment void; but no claim is made that there is any want of notice of intention to improve, nor any irregularity in the passage of the resolutions or ordinances providing for the improvement.

We think neither proposition can be maintained. It is true that the section referred to is obnoxious to the late rulings of this court condemnatory of special legislation, but that conclusion by no means concludes the inquiry. The section, or the act of which it is a part, repeals former laws upon the subject, and if the act in the particular complained of be unconstitutional the repealing clause, by a well understood rule, would also fall with it. It cannot be important to pursue this inquiry in detail and thus settle upon the next preceding act which would meet the present view as to uniform operation. It is enough to say that the original municipal code, in its provision for special assessments, 66 O. L., 245-247, provides generally for street improvements “by any city or incorporated village;” and while the specific steps there provided are not precisely the same as those enjoined by the later acts including the act in question, yet the substance is the same. The later ones equally protect the rights of the landowner; and in this inquiry we are to be controlled by substantial considerations and not by mere technicalities. Sections 2289 and 2327, Revised Statutes.

But another consideration sufficiently answers the proposition. This improvement was made in the year 1897. Prior to that date legislation in its essential features identical with that which is here assailed had been distinctly sustained by the courts upon a full consideration of the precise objection which is here urged. The case of Scheer v. Cincinnati, brought to enjoin a street assessment, decided by the superior court of Cincinnati in 1885, involved an inquiry into the validity of the act of April 25, 1885 (82 O. L., 156), which was supplementary to section 2293, Revised Statutes. The act authorized the improvement by paving with granite blocks, etc., streets in cities of the first grade, first class, and the holding was (opinion by Harmon, J.), that it was not invalid by reason of section 1, article 13, or of section. 26, article 2, of the constitution; and the assessment was sustained. That case was prosecuted by plaintiff to this court, and the judgment of the superior court affirmed January 19, 1886, 15 L. B., 66. This holding was cited approvingly and the principle involved affirmed in State v. Hudson, 44 Ohio St., 137, and repeatedly reaffirmed by decisons of this court, and remained the law of the state until the decisions involving the government of the cities of Toledo and Cleveland, announced June 26, 1902, State v. Jones, 66 Ohio St., 453; State ex rel. v. Beacom, 66 Ohio St., 491. So that the inquiry comes finally to this: Is the owner of property which has been assessed for the improvement of a street entitled to an injunction restraining the collection of such assessment where a statute in all material respects the same as the statute under which the improvement was made and the assessment levied, and the bonds of the municipality to pay the cost issued, had been theretofore adjudged valid by the highest court of the state, simply because similar legislation was held by the same court long afterwards to be in violation of the constitution? We answer the question unhesitatingly in the negative.

It is a principle of universal application that a cause of action once finally determined between parties by a competent tribunal cannot afterward be litigated between the parties or their privies by a new proceeding. It is the principle of res judicata. It rests not only on the private rights of the parties, but is a principle of public policy, having been characterized as a “fundamental concept in the organization of civil society.” Jeter v. Hewitt, 22 How., 352. It is equally well settled as a general proposition, admitting, however, of exceptions, that courts will adhere to and follow decisions of the highest court of the jurisdiction where the same points come again in litigation; and the rule is of universal application where the law has become settled as a rule of property, by reason of such earlier decisions, and rights have become vested on the faith of them. This is the doctrine of stare decisis. The broad principle lying at the base of both of these rules is embraced in the translation of the term res judicata, viz.: “That the matter has been decided.” So that if a matter or point in issue has been decided in such a way as to bind the parties to the new action, whether they were parties to the former suit or not, and whether, where the validity of a statute is involved, the precise statute was in question or not,-the former decision will control. Such is the case we have. The City’s bonds have been issued to pay for the improvement, and such as have not been paid are held by innocent investors, and thus property rights and liabilities have grown up and become fixed beyond change on the faith of the decisions of this court upon the precise question which is involved in this inquiry; and the decisions do, for the reasons stated, bind all persons affected by the street improvement thus made. It would be glaring injustice to the City and its general taxpayers to now hold that the acts of public agencies which carried on governmental functions by the authority and upon the faith of those decisions were invalid, even though, were the question presented in a way to affect only new conditions, a contrary holding would be imperative.

The underlying principle presented is not dissimilar from that involved in the City of Cincinnati v. Taft, 63 Ohio St., 141. There was present in that case a question as to the constitutionality of an act supplementary to that which authorized the issue of bonds for the construction of the Cincinnati Southern Railway. This act, if it were new legislation, would be now condemned as unconstitutional; but it having been sustained by the decision in Walker v. Cincinnati, 21 Ohio St., 14, the court held in the Taft case, without regard to the constitutional question, that: “An act of the general assembly to authorize a municipality to issue bonds for the construction of a public improvement having been adjudged by this court to be constitutionally valid, and the bonds having been thereafter sold and the improvement made, the court will follow the former decision as to the validity of supplementary acts relating to the renewal or extension of such bonds.” It would appear that this branch of the present case might be disposed of on the authority of that case.

Nor is the assessment invalid because made in terms by the abutting foot instead of in terms according to benefits, the record showing that the assessment did not exceed tbe special benefit to the land. Schroder v. Overman, 61 Ohio St., 1; Walsh v. Barron, same volume, 15; Walsh v. Sims, 65 Ohio St., 211.

Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.  