
    Scherler et al. v. Village of Maple Heights.
    
      (Decided April 27, 1931.)
    
      Messrs. Turney <& Sipe, for plaintiffs.
    
      Mr. B. E'. Boehm, for defendant.
   Sheri ck, P. J.

This action comes into this court on appeal from the common pleas court of Cuyahoga county, and the appellants are William E. and Ella Scherler, husband and wife, who were the plaintiffs below.

We believe it unprofitable in this case to enumerate the facts at length for the reason that the questions presented by the admitted facts are but questions of law.

The action' is brought under favor of Section 12075, Gfeneral Code, and seeks to enjoin the levy and collection of special assessments for a trunk line sewer improvement in the village, now city, of Maple Heights.

It appears that the main portion of the sewer has been constructed, and that but a small portion yet remains to be done. The questions raised by the petition as to the invalidity of the assessments are three in number, the first being that the improvement is unnecessary; the second, that the plaintiffs ’ property will be damaged thereby; and, the third, that the assessments exceed the benefits and the statutory limitation.

We might say as a preliminary matter in a consideration of this cause that we are of the view that the record discloses that the plaintiffs ’ property has been assessed in an amount greater than 33-J per cent, of its value, as it now stands — inasmuch as we cannot say after the improvement is made, for the reason that the sewer has not as yet been constructed across the plaintiffs’ premises, the same being delayed by virtue of a condemnation proceeding for a right of way, as yet undisposed of.

We are of the disposition, however, to hold in this case that the plaintiffs are not entitled to the relief sought, in this court of equity, for the reasons hereinafter to be enumerated.

Considering the necessity of the improvement, we must answer that there is an absence of a showing of fraud or abuse of discretion on the part of the legislative authorities of the village, and this being true it is not for this court to determine the necessity for the improvement. That is a matter entirely reposed in the council as a legislative body, and it not having been proven to have abused its discretion, this court will not interfere.

The second reason urged in support of the relief sought charges that the plaintiffs’ property will be damaged by this improvement, and turning to the record we are advised that the plaintiffs admit that they were personally served with a proper notice of the passage of the resolution of necessity on or about June 22, 1926, and that they immediately consulted attorneys relative thereto.

It is further claimed that they talked to the mayor of the village -within two days of the receipt of the notice, and the mayor is reported to have said certain things; bnt it seems that the attorneys after this conversation wrote the mayor for information concerning what was proposed to be done in the matter of this improvement, and that they were advised of the municipality’s procedure and of its intention to proceed. No written claim for damages was ever filed by plaintiffs as provided by Section 3823, General Code.

We note from the statute that it is therein provided that “An owner who fails to do so, shall be deemed to have waived such damages and shall be barred from filing a claim or receiving damages.” This seems to us to be conclusive as against the plaintiffs. The Supreme Court in the ease of Bashore v. Brown, 108 Ohio St., 18, 140 N. E., 489, directly so holds in a case in which a property owner sought to enjoin the collection of an assessment for an intercounty highway improvement, in which case the claimant failed to file objection with the board of county commissioners, and the court in commenting therein, said, that the commissioners not having otherwise exceeded their statutory authority, a landowner may not enjoin the collection of an assessment under authority of Section 12075, General Code, when he has failed to file objections thereto with the county commissioners as required by the statute in such cases; and the court referring to the statute there in question, which is very similar to Section 3823, General Code, further remarks that the statute furnishes the owner an adequate remedy at law, which, if the proceedings are otherwise legal, he must pursue before resorting to a court of equity for relief. It must be kept in mind that the proceedings pertaining to the assessment in this case are in no way otherwise questioned, and the pronouncement in that case is decisive of the question here presented.

Coming now to the third reason advanced for injunctive relief, that is, that the assessment exceeds the statutory limitation and benefits, we call attention to Section 3848, General Code, in which it is provided that objections to assessments must be filed within two weeks after the expiration of the public notices required to be given by Section 3895, General Code.

It appears from the record that this 14-day period expired on August 4, 1926, and that the plaintiffs filed no objection to the assessments, as contemplated to be made, and that on August 18 of the same year council passed the assessing ordinance and authorized the issue of bonds, which were thereafter issued and sold. It does appear, however, that on August 19, a letter was addressed by plaintiffs’ counsel to the village, registering an objection to the assessment. It is suggested by defendant that the filing of this objection came too late, and we find that to be true. The case of City of Cuyahoga Falls v. Beck, 110 Ohio St., 82, 143 N. E., 661, is decisive of this point.

In the present case, it is not contended by plaintiffs that they did not receive notice; and it is held in the case just noted that the failure to file such written objection likewise constitutes a waiver of the right to question the assessment in a court of equity under Section 12075, General Code, and that this is so even though the assessment exceeds 33-J per cent, of the actual value of the lot of land in question after the improvement is made.

The defendant contends that, inasmuch as the assessments were made in 1926, and this action was not filed until nearly three years later, the plaintiffs, by reason of their full knowledge in all matters concerning this improvement and assessment, are es-topped by their laches. In view of what has been previously said, and what will immediately follow, we do not deem it necessary to pass upon this question.

Eeferring to the prayer of the petition in this case, we note that it is sought to enjoin the defendant “from causing any change, levy or assessment to be made against the land of the plaintiffs.” It may be quickly perceived that at no place is the collection of this assessment asked to be enjoined, but in open court the plaintiffs now so request, and it appears that the levy, meaning, as we understand it, the certification of the assessment roll by the municipal authorities to the county auditor, was fully completed in the year 1926. We understand that, when an assessment has been so certified, the municipal authorities thereafter have nothing further to do with reference thereto, but that it becomes the duty of the auditor to place upon the duplicate the special assessment taxes to be collected, which the treasurer shall collect, and we would here remark that the county auditor and county treasurer are not made parties to this suit, and no order could be made herein in their absence. The levy has already been made, and to enjoin collection it is provided by Section 12077, General Code, that the tax collecting officials are necessary and proper parties to an action of this character.

The law as applied by the court in the instant case is reluctantly applied, in view of the fact that we are of the opinion that the assessments will exceed 33;, per cent of the value of the premises after the improvement is completely made, yet, the question not having been properly saved, this court of equity is unable to aid plaintiffs. A decree for defendant may be entered accordingly, and the petition is dismissed, at plaintiffs’ costs.

Petition dismissed.

Lemert and Montgomery, JJ., concur.

Judges of the Fifth Appellate District sitting by designation in the Eighth Appellate District.  