
    (Fifth Cir’t—Muskingum Co., Circuit Court
    Jan. Term, 1900.)
    Before Douglass, Voorhees and Wilson, JJ.
    (Judge Wilson of the second circuit taking the place of Judge Adams,.)
    WILLIS BAILEY v. THE CITY OF ZANESVILLE.
    
      Assessment for street improvement on land in bulle—
    (1). In determining whether a particular parcel of land, for purposes of assessment, is land in bulk or city lots, within the meaning of section 2269, Bevised Statute, regard must be had not merely to the recorded plat of the town, but to the size of lots generally in the municipal corporation; and where the property is not the size of lots generally in the city or in the neighborhood, it must be regarded as land in buik.
    
      Same — Duty of council—
    (2). Before a municipal corporation can levy an assessment upon land in bulk, either according to appraised value, or according to the front foot, it must give to such land the average lot depth in the neighborhood, and after having fixed the taxing district, the land must be given a value for taxation, in order that the limitations of section 2270, Revised Statutes, may be applied. The council is not per mitted to depart from this rule or to levy an assessment by the front foot deeper than lots in the neighborhood, or above the average value of lots in the neighborhood.
    
      Constitutional law — Duty of legislature to restrict power of council to levy assessments—
    
    (3). The constitution directs the legislature to restrict, not to enlarge the powers of assessment of municipal corporations, and all the provisions of the statutes in that behalf are restrictive in their nature, not enlarging,and must be so construed.
    
      Re-assessing ordinance — Power of council—
    (4). Council has the power at any time to. pass a legal assessing ordinance, if the first ordinance should be found to be illegal.
    Appeal from the Common Pleas Court of Muskingum county.
   Wilson, J.

The case of Willis Bailey against the city of Zanesville comes into this court on appeal. It was submitted upon an agreed statement of facts. The statement of facts, as it comes to us, is in the form of a finding of facts made by the judge who tried the case in the court below.

The plaintiff,in his petition, avers that he is the owner of lot No. 37 in the city of Zanesville, fronting on Maple Avenue 240 feet, being in depth 500 feet on one side and about 600 feet on the other, containing an area of about five acres of land; that this lot No, 37 is appraised for taxation, at the sum of $9200; that on March 14, 1892, the city council passed a resolution to improve Maple Avenue, and on August 12 following, it passed the improving ordinance, specifying the manner in which the avenue should be improved, On September 12 succeeding, it passed an assessing ordinance, assessing the cost of this improvement, except two per cent, thereof, and except the cost of paving between the railway tracks, and the cost of paving at the street intersections, upon the abutting property on the avenue, by the foot front, at the rate of $4.26 per foot; that under this ordinance, it assessed plaintiff’s property for $1001.37; thet this property was not subdivided into city lots, and that the average depth of city lots in the neighborhood was about 148 feet, and that the average assessed value thereof was about $9.36 per front foot. He avers that he has paid $600.18 on this improvement, and that the city is still claiming $400. from him upon the improvement, under the assessment, and that unless restrained by the order of the court, the city clerk will certify, as he may under the ordinance, to the auditor of the county, the amount assessed and still unpaid, and it may be collected as other taxes against him, He avers that he has paid all that he can be legally assessed for on this improvement, and asks that the authorities may be restrained from collecting any further sum from him, as they threaten to do.

The city answers, denying that it has assessed the property beyond the limit allowed by law, and says that the property assessed is appraised at $9200, and the assessment does not exceed twenty-five per cent, of that value; they deny that this lot is not subdivided, and say that it is a lot numbered and platted according to the plats of the city, and that it has been appraised as such. They also plead, as a further defense, that on June 1, 1897, they passed a re-assessing ordinance, finding that the first assessment was not legal, and that they then appraised the property of the plaintiff at $17.04 per front foot, and assessed him the one fourth of that sum, for the payment of this improvement.

A motion was made and sustained in the court below, to strike out this last defense from the answer. That motion was not argued here, and this court has not found it necessary to pass upon the sufficiency of the defense as a pleading. We have, however, considered it as one of the facts admitted in the case, and have applied the law to such state of facts.

The question raised here involves the construction of sections 2269 and 2270 of the Revised Statutes Section 2269 reads,

“In making special assessments, according to valuation, the council shall be governed by the assessed value of the lots, if the land is subdivided and the lots are numbered and recorded; but if the lots are not assessed for taxation, or if there is land not subdivided into lots, the council shall fix the value of the lots or the value of the front of such land to the usual depth of lots, by the average of two blocks, none of which shall be next adjoining on either side; and if there are no blocks so adjoining, the council shall fix the value of the lots or lands to be assessed so that it will be a fair average of the assessed value of other lots in the neighborhood, and if in making a special assessment by the foot front — 'by the abutting foot, there is land abounding or abutting upon the improvement not subdivided into lots, the council shall fix the depth-of such lands so that it will be a fair average depth of the lots in the neighborhood, which shall be subject to such assessment.”

Applying this statute to the facts in this case, the court below found that this lot was land in bulk. The parties here have agreed .to this as a fact in this case, notwith standing the contention of the answer that it is not land of that character, and if that fact'had not been conceded by the city, the law would so determine it under the authority of the case of Springer v. Avondale, 35 Ohio State, 625,

The doctrine of that case is, in determining whether a particular parcel of real estate was land in bulk, within the meaning of section 542 of the municipal code of 1869, which is section 2269 of the Revised Statutes, regard must be had not merely to the recorded plat of the town, but to the size of the lots generally in the municipal corporation; so that, as matter of law, it must be decided that this was land in bulk, and not land divided into lots, because the size of this lot is not the size of lots .generally in the city, or in the neighborhood.

The city, therefore, had in this case, land in bulk, upon which it was authorized and empowered to levy an assessment, and before it could do so, either according to the appraised value, according to the benefits, or according to the foot front, it must give to the land assessed, a lot depth, and that lot depth must be what the average lot depth is in the neighborhood. And after they have thus fixed the taxing district, and designated the land which may be assessed for the improvement, it never having bad an assessed value for taxation, it must give it a value for taxation. It is required to do that in order that the limitation of section 2270 may apply, for that section provides:

‘‘In municipal corporations other than cities of the first class, or in incorporated villages in counties containing a city of the first or second grade of the first class, the tax or assessment specially levied and assessed on any lot or land, for any improvement, shall, in no case, amount to more than twenty-five per centum, of the value of the property, as assessed for taxation.”

The land must be assessed for taxation before it can determined whether or not the assessment exceeds the limit which is prescribed by this section. Therefore, it was the duty of the council, after it determined the depth of the lots in this neighborhood and the depth of the land which could be assessed' out of this.land in bulk, to then determine what its assessed value for taxation should be. The power to determine the assessed value is not arbitrary. It must in every instance, whatever the method of assessment may be, be uniform and equal; in other words, where the land is in bulk, it must be governed by the assessed value of the lots in the blocks on the sides, or if there are no blocks on the sides, then in accordance with the assessed value of the lots in the neighborhood. The council is not permitted to depart from this rule in determining the value of property for taxation. It would not be equitable, just, or legal to determine that when you levy an assessment by the foot front, you may levy it upon land deeper than the lots in the’neighborhood as assessed by the front foot, or that you may value it at a price above the average price of the lots in the neighborhood as assessed for taxation, because it is an underlying and fundamental principle in the exercise of the power of assessment, that whatever rule it prescribed, it must be uniform, equal and according to the benefits, so that all will be treated alike under the law.

Before the statute was in its present form, the Supreme Court, in the case of Cincinnati v. Oliver, 31 Ohio State, 371, held,

‘‘The limitation upon the power of making assessments contained in section 542 of the municipal code, 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 proportion to its taxable valuation.”

So the court there determined that, if you make the assessment according to the valuation or according to the foot front, the power of the council is limited by the provision of this section. And in the body of the opinion, Judge WhJte says: “The'mode of apportionment”, i. e., whether they levy by the foot front or according to the assessed value, or according to the benefits, “is not the means intended for ascertaining the extent of the area of the abutting property subject to assessment. And it seems to us to be wholly inadmissible to suppose that the legislature intended that the assessment upon the same tract or parcel of land, if levied according to its taxable valuation, should be limited to the usual depth of lots by the average of the two adjoining blocks; but if levied by the frontage, the assessment should extend through the entire tract without reference to its depth.”

That construction of the statute, he says, is wholly inadmissible, because it would be a violation of every principle which should govern the assessment of property,

Now with this view of the law, let us apply it to the facts in this case. The defendant, the city, is here admitting that the average depth of the lots in that neighborhood is 148 feet; that their average assessed value for taxation is $9.36. Notwithstanding these admissions, it says it passed a re-assessing ordinance, assessing this property $17.04 a front foot and 200 feet in depth.

Had it the power to do this? It appears that it was necessary to assess the property that much, in order to make this assessment legal. Is not this the exercise of an arbitrary power? The constitution directs the legislature to restrict, not to enlarge the powers of assessment by municipal corporations, and all the provisions of the statute in that behalf, are restrictive in their nature, not enlarging, and must be so construed.

When the city passed an ordinance assessing the land in bulk for a depth greater than the average depth of the lots in the neighborhood and for- an amount greater than the average valuation of the lots in the neighborhood, it exceeded its legal authority. It had no authority in law to assess this property at a valuation greater than the average valuation of the lots in the neighborhood, and if it did so, it exceeded its authority, and its ordinance must be held void. It had no authority in law to assess this land in bulk for a depth greater than the depth of the average lote in the neighborhood, and when it did so, it exceeded its authority, and for this reason also, its ordinance is void. We have reached this conclusion after a careful consideration of Parmelee v. Youngstown, 43 Ohio State, 161, and Findlay v. Frey, 51 Ohio State, 390

The city is here admitting facts which show that if it had proceeded with its assessing ordinance in accordance with the law, it could not have valued this property, by the foot front, for a sum greater than $9.36 per foot. It is admitting that the plaintiff has already paid on the improvement, more than twenty-five par cent, of this amount, and notwithstanding these admissions, it is claiming the right by the assessing ordinance which we find to be illegal, to collect from him the further sum of $400.

We concede to it the power at any time, to pass a legal assessing ordinance when the first is found to be illegal, but in so doing, it must be governed by the rules laid down in the statute; it must appraise this lot of land as other lots are appraised, so far as the value is concerned, and it must assess to a depth as other lands are assessed in that neighborhood, and when it has passed an ordinance in accordance with the law, it is authorized to’ assess twenty five per cent, of the appraised value for taxation. But it is admitting a state of facts which discloses that it has already collected all it could assess under the law, and that being true, we think that the plaintiff has clearly made out a case in equity, which will justify this court in enjoining the city from collecting any further sum.

For these reasons, tLe decree will be for the plaintiff accordingly.  