
    Caldwell v. Village of Carthage.
    
      Condemnation of private property for street purposes — Resolution of council declaring the necessity — Due process of law.
    
    1. The preliminary resolution declaring the necessity of an improvement, which the council is required to pass, give notice of, and publish as provided in section 2304 of the Revised Statutes, does not apply to the condemnation of private property for opening, extending, straightening, or widening a street.
    2. Where land is appropriated for a street improvement, an assessment by the foot front of the property bounding and abutting upon the improvement, to pay the cost thereof, without the passage, notice, and publication of such preliminary resolution, as thus provided, will not thereby be a taking of property without due process of law, in violation of section 1 of the 14th amendment of the constitution of the United States.
    [Decided April 26, 1892.]
    
      Error to the Circuit Court of Hamilton county.
    The plaintiffs in error, J. Nelson Caldwell, Frank Caldwell, Fannie E. T. Caldwell, Marion E. Caldwell, and Cornelia A. Caldwell commenced the original action in the court of common pleas, against the defendant in error, The Village of Carthage, E. E. Ross, clerk of said village, and Fred Raine and John Zumstejn, respectively county auditor and county treasurer of Hamilton county, Ohio.
    The Village of Carthage in said county, in order to widen Taylor street in said village, appropriated a strip of ground belonging to the plaintiffs, thirty-three feet wide along the west side of Taylor street for its entire length. To pay the cost and expenses of the appropriation, a special assessment was levied, by the foot front, upon the lots and lands of the plaintiffs bounding and abutting upon the improvement; and the original action was brought to enjoin the collection of the assessment.
    The court of common pleas held the assessment against the plaintiffs and their property to be void, and perpetually enjoined the defendants from collecting or attempting to collect, and from demanding, certifying, or receiving any of said assessment from any of the plaintiffs, to all of which the defendants, by their counsel, excepted.
    The cause was appealed by the defendants to the circuit court, and that court found the facts upon the matters in issue, and rendered judgment, as follows:
    1st. “The Village of Carthage is duly incorporated and is situated in a county containing a city of the first grade of the first class. That on October 1, 1889, there was and for many years prior thereto had been in said village a certain street known as Taylor street, running northwardly from a point near Fifth street to the Hamilton, Springfield, and Carthage turnpike; that said Taylor street was thirty-three (38) feet in width, and that said street was dedicated from the lots and lands lying on the east side thereof.
    2nd. “That said Taylor street is a continuation of Jackson street, and that the west line of said Taylor street when thirty-three feet wide was the center line of Jackson street produced, said Jackson street being sixty-six feet in width. That on October 1,1889, the said Village of Carthage, deeming it necessary to widen said Taylor street, and to make it conform to said Jackson street, of which it is a continuation, the council of said village, by a unanimous vote of its members, duly passed an ordinance No. 808 to appropriate a strip of ground thirty-three (33) feet wide along the west side of said Taylor street for its entire length.
    “Section 1 of said ordinance declared the intent to appropriate the property, describing it, for the purposes above set forth.
    “Section 2 directed the solicitor of the village to apply to the court to have the compensation assessed to be paid for the property.
    “ Section 8 provided that the cost and expenses of said appropriation shall be assessed per front foot upon the lots and lands abutting upon the westerly side of said Taylor street, widened as aforesaid, said assessment to be collected in five annual installments, and bonds to be issued in anticipation of the collection of said assessments.
    “Said ordinance was read the first time. The rule of law requiring “By-laws, resolutions, and ordinances, of a general and permanent nature, shall be fully and distinctly read on three different days, unless three-fourths of the members elected dispense with the rule,” was then dispensed with by a unanimous vote of, the members elected to council, the yeas and nays being called, and entered on the journal. The ordinance was then read the second and third times by its title. On motion final action was then taken, and the ordinance duly passed upon a call of the yeas and nays, by a unanimous vote of the members elected and the vote duly entered on the journal; said ordinance was duly published as required by law.
    “No resolution declaring such widening of Taylor street to be necessary was adopted by council, and, consequently, no publication made or service of notice of such resolution.
    3d. “Plaintiffs in this cause were all parties defendant in a suit brought in pursuance of said ordinance to ascertain the compensation to be paid for the property condemned by the verdict and judgment, but neither the petition, the summons, nor any other part of the record of said cause disclosed the intention or purpose to assess the plaintiffs’ land to pay the cost and expenses of said widening.
    ' 4th. “The benefits of the property assessed, by reason of the appropriation of property and widening of Taylor street, is much greater than the amount of the assessment, and the assessment is less than one-fourth of tax values or actual of the property assessed aftgr the making of improvement of widening said Taylor street.
    “The assessment Includes only the costs and expenses'of the appropriation of property for widening Taylor street, as-provided in said ordinance, No. 808.
    “The court finds on all the issues joined herein for defendants.
    “It is therefore ordered, adjudged, and decreed by the court that the petition herein be dismissed; and that the defendants recover from the plaintiffs their costs herein expended, taxed at $>-. To all. of which findings and judgment plaintiffs by their counsel except.”
    To reverse the judgment of the circuit court this proceeding in error is prosecuted.
    
      W. M. Ampt and John E. Bruce, for plaintiff in error.
    I. It is contended that section-2304, Revised Statutes, does not apply to improvements in the nature of a widening or extension of a street, and further that its purpose is merely to furnish opportunity to cause damage claims to be filed under section 2315.
    The section is found in that part of the municpal code relating to street improvements which are enumerated in section 2263.
    In section 2305, referring only to cities of the second class and villages, language is used showing that the word “improvement” is intended to include condemnation and appropriations of real estate. Comparing these two sections and the latter appears to be a limitation of 2304, as to such second-class cities and villages, making it necessary in all other municipalities to comply with section 2304 in all improvements. In a word, section 2305 allows municipalities therein named to improve streets in the mode petitioned for, upon passing the resolution called for in section 2304, excepting as to condemnations as to which the mode can not be fixed in the petition.
    Again, section 2284, in fixing the items of cost which may be included in the assessment, says the “cost of an improvement” shall include the price of real estate, whether fixed by a jury in appropriating suits or otherwise, and so must mean that the word “improvement” as used in section 2304, includes street widening, extension, or laying out, as referred to in sections 2263 and 2264.
    Again, section 2264, which is the sole authority for levying any special assessment, refers back generally in the opening clause to section 2263, not only to the cases named in section 2263, but to improvements of any kind, and defines the mode of procedure.
    We therefore claim that section 2304, in the use of the words “public improvement,” includes condemnations of real estate for street purposes.
    An analysis of section 2304, will show that it provides for a declaration of necessity. It provides for such a declaration antecedent and preliminary to the ordering of the improvement under Revised Statutes 2316. It provides for publication of the resolution. It provides for service of a written notice of its passage upon abutting owners. It omits the written notice in sewer inprovements. It does not require that, at this time and in this resolution, the assessment must be determined upon.
    We claim that under the policy of the Ohio municipal improvement law, the necessity of an improvement must first be found and declared as a separate, antecedent, preliminary, and jurisdictional fact, and that this requirement is one of the instances wherein Article XIII, section 6, of our Constitution is being enforced for the purpose of restricting the power of assessment. As necessity is the foundation, and the only foundation, of all taxation or special assessment, and recognizing the peculiar liability of the assessing power to abuse, tbis section 2304 requires’ this preliminary finding of necessity as the very basis of all the proceedings to follow; and the passage of this resolution places the members of council upon record as having first assumed the responsibility of declaring this .necessity before, under section 2316, they order the improvement to be made.
    Reading these three sections 2304, 2315, 2316 together, we find our Ohio system of municipal improvements as in perfect accord with the requirements of the fourteenth amendment of the U. S. Constitution.
    If these three sections do not provide for the notice and opportunity, then the Ohio laws are defective, as not providing for “due process of law,” as required by the fourteenth amendment. Scott v. Toledo, 36 Fed. Rep., 385
    Assuming that the statutes require the passage of a resolution of necessity, under Revised Statutes 2304, as to all improvements where an assessment of private property is contemplated, we contend that such resolution is mandatory and jurisdictional in all its requirements; that it contemplates, an afiirmative and positive finding of the fact of necessity; that this fact of necessity must be found antecedent and preliminary to the city’s determination to make the improve-' ment; and in the matter of notice we contend that section 2304'provides fully for it as the basis of a hearing under section 2316, and thus makes our Ohio law in harmony with the fourteenth amendment, and that this section 2304, applies to all public improvements accompanied with a special assessment; and that this section is mandatory as being for the protection of assessment payers, and its passage is. required to put councilmen upon record, and thus insure an additional protection to the assessment payer. Walker v. State, 18 Ohio St., 85; Stephens v. Daniels, 27 Ohio St., 527; Fennelv. Kates, 19 Ohio St., 405; Boltons. Cleveland\ 35 Ohio St., 319; Upington v. Oviatt, 24 Ohio St. 232; Smith v. Toledo, 24 Ohio St., 126; Fdoyt v. Saginaw, 19 Mich.,. 39; McLausen v. Grand Forks, 43 N. W. Rep. 710; Baltimore v. Porter 18 Md., 284; Robinson, Tr., v. Logan, 31 Ohio St., 466; Rice v. Wellman, 3 C. C. 334; Cilrran v. Co., Comm’rs, 50 N. W. Rep. 237; Doughty v. Miller, 36 Cal. 83,' Dillon, M. C., 601; Quill v. Indianapolis, 23 N. B. R., 788.
    II. Whenever the character of the proceeding by which one is deprived of his property, whether judicial or administrative, and whether it takes the property directly or creates a charge or liability which may be the basis of taking it, the law directing the proceeding must provide for some kind of notice and offer the owner an opportunity to be heard, or the proceeding will want the essential ingredient of due process of law. San Matteo Co. v. R. R. 13 Fed. Rep. 722; Brown v. Denver, 3 Pacific, 459; Gatch v. Des Moines, 63 Iowa, 718; Stuart v. Palmer, 71 N. Y. 183; Ulman v. Baltimore, 20 Atl. R. 141; Sessions v. Crinkelton, 20 Ohio St., 349; R. R. v. Wagoner, 43 Ohio St., 75; 24 N. J. R. 662; 29 N. J. R. 475; 33 N. J. R. 39; 34 N. J. R. 451, 38 N. J. R. 95; 30 Mich. 201; Thomas v. Gain, 35 Mich., 155, 164; State v. Road Commissioners, 41 N. J. R. 83, 89; Campbell v. Dwiggins, 83 Ind. 473; Boerman v. St. Barbara, 4 Pacific R.; Griswold v. Davenport, 22 N. W. 904; Auer v. Dubuque, 22 N. W. R. 914; Welty on assessments, secs. 252, 287; Desty on taxation, 515; Welty on assessments, secs. 220, 221, 319; 13 Wallace. 506; 2 Kansas, 115.
    Want of jurisdiction can not be cured. Welty on assessments, sec. 231.; Cooley on taxation, 227; Peoples. Goldtree, 44 Cal. 325; Cooley on taxation, 2'27; Revised Statutes 5848; Cooley on taxation, 536; Stephens v. Daniels, 27 Ohio St., 527; Taylor v. Secor, 92 U. S., 575; Corry v. Campbell, 3 Cin. Raw Bull., 174; McMillan v. Anderson, 95 U. S. 37; Davidson~v. New Orleans, 96 U. S., 97; Arrowsmiih v. Har-moning, 118 U. S., 194; Hager v. Reclamation District, 114 U. S., 701; Wentz v. Hoagland, 114 U. S., 606; Spencer v. Merchant, 125 U. S., 345.
    Y. B. Hammel, solicitor of the village of Carthage, for defendant in error.
    I. Was it necessary to adopt a preliminary resolution, such as is contemplated in section 2304, of the Revised Statutes, and serve notice, before enacting the ordinance to appropriate?
    
      We contend that section 2304 does not apply to improvements in the nature of a widening or extension of a street.
    That there is not provision in the statutes requiring a resolution in such a case, and that therefore the adoption of a preliminary resolution is not a jurisdictional pre-requisite.
    The appropriation of private property is specially provided for in chapter 3, division 7, title XII of the Revised Statutes. Section 2235, provides for declaration of intention to appropriate. Section 2236, for application to court. Section 2247, orders as to payment. Section 2260, fixes the time at six months, within which the corporation shall determine whether or not it will take the property. Section 2642, in chapter 13, division 8, title XII, modifies section 2235, in that it provides that the declaration shall be by ordinance.
    There is no provision in chapter 3 for a resolution or notice. It is quite difficult to understand how section 2304 can be held to apply to, or in any manner affect, the provisions for appropriating private property, which are specially provided for in another chapter. Krumberg v. Cincinnati, 29 Ohio St., 69.
    The word “improvement” is used, we think, throughout the code in such a way that its real meaning in any one section, must depend upon its connection with the subject matter. In order to determine the meaning and application of the word “improvement,” as used in section 2304, let us read in connection with it, the preceding section 2303.
    The words, “subject to the restrictions herein contained,” as used in 2264, which is in the same chapter, will certainly cover the above requirements as well as the requirements of section 2304.
    Thus it would seem that the improvements contemplated •by section 2304, and to which its provisions apply, are improvements by construction, with cuts, fills, macadam, etc., and are not intended to embrace condemnations.
    It is perhaps true that the resolution prescribed in section '2304 is a necessary pre-requisite, and must be adopted, in all cases to which its provisions apply, and in such cases we ■concede that it may perhaps be jurisdictional. But when read in connection with, sections 2315 and 2316, there can be no mistaking the fact that the principal object is to give such notice as will result in the adjustment of damage claims.
    But it is argued that the owner of property abutting upon the land appropriated may be assessed, although none of the property appropriated was taken from him; he, therefore, not being a party to the condemnation proceedings. That is true, and it is equally true that the mere appropriation of property can in no wise damage such abutting property owner, while the subsequent improvement of the street by construction may; and of which improvement he would be entitled to notice under section 2304.
    Having determined these preliminary questions to-wit: That it will proceed with the improvement, and the time of making the judicial inquiry as to the damage cláims, the council is now ready to enact the improvement ordinance.
    We come now to the consideration of the fourth provision of the section, which has reference to the proceedings in chapter 3, or condemnations, to which counsel for plaintiffs in error so tenaciously cling, as the true solution of their theory of this case.
    This provision is so very plain that, either read alone or in connection with kindred sections, it is impossible that its. meaning can be misunderstood. It simply means that when an improvement by construction has been declared necessary, and notice served pursuant to 2304, and claims for damages-have been presented under 2315, and such claims have been considered by council, and it has been determined to proceed with the improvement, and that the damage claims shah be judicially inquired into, then the provisions in chapter 3, (condemnations), as to service of notice, time of empaneling the jury, etc., shall be used so far as applicable, provisions in detail not having been provided in the assessment chapter.
    We do not dispute the proposition that a municipal corporation must act within the authority which the legislature has granted it, either by express terms, or by fair implication. The provisions of the statutes governing the appropriation of private property are most explicit. Sections 2235 and 2642.
    
      The record of this case clearly reveals the fact that the provisions of these sections have been strictly complied with and observed, both in spirit and in-letter.
    The following cases hold that the preliminary resolution is not necessary, and not being required by statute the absence of a resolution did not invalidate the assessment. Fennell v. Kates, 19 Ohio St., 405; Krumberg v. Cincinnati, 29, Ohio St., 69; Bolton v. Cleveland 35, Ohio St., 819; Upingtonv. Oviatt, 24 Ohio St., 232; Scoville v. Cleveland, 1 Ohio St., 127.
    On the other hand the following cases hold that where the statute requires a resolution, its adoption is mandatory and jurisdictional. Welker v. Potter, 18 Ohio St., 85; Stephens v. Daniels, 27 Ohio St., 527; Hoyt v. Saginaiv, 19 Mich. 39.,
    II, Assessments to pay for local improvements have been ■uniformly upheld by this court, as being in harmony with the provisions of the Constitution of both the State of Ohio and of the United States under the power of taxation, Bonsall v. Lebanan, 19 Ohio 418; Scoville si. Cleveland\ Ohio St., 127; Hillsr. Higdon, 5 Ohio St., 243.
    The restrictions and limitations which the legislature has prescribed, and which are fully discussed in the first section of this brief, and their observance, secure to the property owner and tax-payer,- “Due process of Raw.” Reeves v. Treasurer of Wood Co., 8 Ohio St., 833; Northern Indiana R. R. Co., v- Connelly, 10 Ohio St., 159; Maloy v. Marietta, 11 Ohio St.. 636 Creighton v. Scott, 14 Ohio St., 438; Cleveland v. Wick, 18 Ohio St., 303; Corry v. Campbell, 25 ■Ohio St., 134; Lima v. Cemetery Association, 42 Ohio St. 128; R. R. Co. v. Wagner, 43 Ohio St., 75.
    The assessment sought to be enjoined in the case at bar is not a personal tax.
    There are two methods prescribed for the collection of assessments for local improvements, by the statutes of Ohio. Sections 2294, 2295 and 5848.
    ' If the corporation making an assessment for a local improvement, provide that the assessment shall be payable within a certain time, and that if the same be not paid, that suit be instituted pursuant to the provisions of section 2294, then the notice of such proceeding issued to the parties assessed, has been repeatedly held to fulfil the requirement of “Due process of Raw.” Davidson v. New Orleans, 96 U. S., 97; McMillan v. Anderson, 95 U. S. 37; Cony v. Campbell, 3 W. R. B. 174; Murdock v. Cincinnati, 25 W. R. B. 26.
   DicKMAN, J.

It is conceded in the case now under consideration, that before proceeding to condemn the property of the plaintiffs for the purpose of widening Taylor street, the council did not declare by resolution the necessity of such a street improvement, as set forth in section 2304 of the Revised Statutes, and hence gave no notice of its passage to the owners of the abutting property. It is therefore contended that the assessment to pay the cost and expenses of the improvement is void, and that the defendants should be enjoined from collecting or attempting to-collect any part of the same.

Section 2304 provides “When it is deemed necessary by a city or village to make a public improvement, the council shall declare, by resolution, the necessity of such improvement, and shall give twenty days written notice of its passage to the owners of the property abutting upon the improvement, or to the persons in whose names it may be assessed for taxation upon the tax duplicate, who may be residents-of the county, and publish the resolution not less than two-nor more than four consecutive weeks, in some newspaper published, and of general circulation in the corporation.”

There can be no doubt that the resolution declaring the necessity of the improvement is required in a street improvement by construction, as by grading, paving, macadamizing, changing grade, repairing, etc.; but, the question arises, is-such a resolution required in a street improvement by appropriation of property. The language, “when it is deemed necessary to make a public improvement,” is general in its nature; but the word “improvement,” as used in Subdivision I, of chapter 4, of Assessments in General, is not of uniform signification. In some sections of the statute the street improvement contemplated is of one kind, while in other sections provision is made for an improvement of a different character. Whether the term “improvement” refers to condemnation proceedings, or to the construction or repair of a street, must be determined by the connection in which it is used.

In our view, the preliminary resolution provided in section 2304 is not necessary in the appropriation of property for opening, widening, and extending streets. For the purpose of the improvement contemplated, 'the resolution of necessity is a part, and an essential part of the proceeding. But by reading section 2304 in connection with sections 2315 and 2316 of the Revised Statutes — being sections 563, 564 and 565, as revised, of the Municipal Code of 1869 (66 Ohio E. 245) — it will be apparent, that the preliminary resolution and notice thereof refer not to an appropriation deemed necessary to be made, but to an improvement of a constructive character, as by grading, raising or lowering the grade, to which damages are usually incident. Section 2315 provides, that an owner of a lot, or of land, bounding or abutting upon the proposed improvement, and claiming that he will sustain damages thereby, shall within two weeks after the service or the completion of the publication of the notice “mentioned in section 2304” file his claim for damages, with a general description of the property to which it is claimed injury will accrue. The resolution declaring the necessity of the improvement having been brought to the knowledge of the abutting owners, and the time limited for filing claims for damages having expired, by section 2316, the council is to determine whether it will proceed with the proposed improvement, or not; and whether the claims for damages shall be judicially inquired into before commencing, or after the completion of the improvement. The damages inquired into, it is obvious, have no relation to the assessment of compensation to the owner of lands appropriated, provided for in chapter 3, Division 7, Title XII of the Revised Statutes; and the reference in section 2315 to section 2304, would indicate the propriety of reading those two sections together, and construing them in the light of each other. If the damages referred to were such would be incident to an appropriation, they would be included in the compensation for the property appropriated and paid for before the property could be lawfully taken, and would not be inquired into after the taking, or “ after the completion of the improvement.” Railroad Co. v. Ball, 5 Ohio St., 568.

Again, if the preliminary resolution as to the necessity of the improvement is to be held applicable to condemnation proceedings, why, it may be inquired, should provision be made for giving notice of its passage to the owners of property abutting, and not to the owners of adjacent and contiguous or other benefited lots and lands in the corporation, which, under the statute, may also be assessed for the cost and expenses of the appropriation. And, it is evident upon examination, that the resolution has no reference to any assessment that may be subsequently made in connection with an improvement by condemnation of land, or to defray the cost and expenses thereof. The notice to be given is of the passage of the resolution declaring the improvement necessary, and not of any assessment which may be made to pay the cost of such improvement.

The authority to assess in proportion to benefits, or according to value, or by the foot front, for appropriating property for streets, is found in section 2264, of the Revised Statutes, and the assessments therein authorized are to be made as expressed therein “in the manner and subject to the restrictions herein contained. ” That section being in the same sub-division and chapter with section 2304, it is Contended that the preliminary resolution required by the latter section is a restriction that must be complied with, before there can be a legal assessment of the cost of property appropriated for a street improvement. The preliminary resolution does not operate as such a ■ restriction, and as we have before suggested, does not refer to an assessment to pay the cost and expenses of an improvement, but is mainly designed to give notice to the property owner claiming damages by reason of the improvement, to file his claim within a specified time, or be barred' from thereafter filing the same or receiving damages. ,

Restrictions upon assessments, such as those alluded to, may be found in sections 2270, 2271 and 2272, but not in section 2304.

But the question as to .the passage of a resolution declaring the necessity of the improvement should, we think, be taken as settled by the case of Krumberg v. Cincinnati 29 Ohio St. 69, which was an action brought to collect an assessment made on the property of the plaintiff in error therein, to pay for land taken by the city to widen a street. An objection was urged in the court below, in behalf of Krumberg, that the council did not declare by resolution the necessity of widening the street, and publish such resolution, as required by the statute. It was held by this court that, the resolution declaring the necessity of an improvement, which the council is required to pass and publish as provided in section 563 (now revised in section 2304), does not apply to the appropriation of private property to public use, such proceedings being otherwise specially provided for. Section 563 of the Municipal Code of 1869, reads: “When it shall be deemed necessary, by any city or incorporated village, to make any public improvement not otherwise specially provided for, it shall be the duty of the council to declare, by resolution, the necessity of such improvement, and to publish such resolution,” etc. The words, “not otherwise specially provided for,” are omitted in section 2304. But, the fact remains as before the revision of section 563, that a public improvement by the condemnation of private property is still specially provided for, and the retention of those words in-the Revised Statutes might well have been deemed unnecessary, in view of the patent fact of ample provision elsewhere in the statutes for a public improvement of that character.

And if it be contended, that by reason of, the broad signification of the words “public improvement,” in section 2304, the resolution of necessity is to be considered applicable to condemnation proceedings, the special pi ovisions on the subject-matter in chapter 3, on the appropriation of property, will control. In Ohio v. McGregor, 44 Ohio St. 628, it is said: “The courts presume an intention in the legislature to be consistent in the making of laws; and also to have had a purpose in each enactment and all its provisions. Special circumstances often create a necessity for appropriate special provisions, differing from the general rule upon the same subject; and so, where such provision's are found in a statute, different from the general provisions that would apply to the case, the courts must assume that the special provisions were made for adequate reasons, and give them effect by construing them as exceptions to the general rule contained in the general provisions of the statute.”

Furthermore, it is urged in behalf of the plaintiffs in error, that in condemnation, proceedings where assessments are on the foot front plan, as in the case at bar, our laws provide for no notice of an assessment apart from section 2304; that sections 2277 and 2278, of the Revised Statutes, provide only for notice of assessments in proportion to benefits; and that, therefore, if there is no resolution declaratory of the necessity of the improvement, with notice thereof to the owners of the abutting property, in accordance with section 2304, and their property is nevertheless assessed for the cost of the improvement, there will be a taking of property “without due process of law,” and a violation of section 1 of the Fourteenth Amendment of the Constitution of the United States, which provides, that no state shall “deprive any person of life, liberty or property without due process of law.”

Due process of law implies a due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights. If the validity of an assessment is called in question, an opportunity must have been given to resist it, either by allowing a hearing before the imposition thereof, or by providing for an appeal to a court of law afterwards. But as said in McMillen v. Anderson, 95 U. S. 37; it is not, and never has been considered necessary to the validity of a tax, that the party charged should have been present, or had an opportunity to be present, in some tribunal when he was assessed. In that case it was held, that a statute which gives a person against whom taxes are assessed a right to enjoin their collection, and have their validity judicially determined,-is due process of law, notwithstanding be is required, as in other injunction cases, to give security in advance. In Davidson v. New Orleans, 96 U. S. 97, it was said by Mr. Justice Miller: “Whenever, by the laws of a state, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole state or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections. * * * * It is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has, by the laws of the state, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case.” These principles have been reaffirmed in the opinion of Mr. Chief Justice Fuller, in Walston v. Nevin, 128 U. S. 578.

The inquiry is suggested, what is the remedy by which, in Ohio, the property owner may test the illegality of an assessment? By Section 5848 of the Revised Statutes, “Courts of common pleas and superior courts shall have jurisdiction to enjoin the illegal levy of taxes and assessments.” An opportunity is here-afforded to establish the invalidity of the tax or assessment; and with such privilege, if judgment is rendered against the property owner in the suit, it cannot be properly said that his rights of property have been determined without due process of law or judicial investigation. Tone v. Columbus, 39 Ohio St. 301, 302; Stephan v. Daniels, 27 Ohio St. 536: Steese v. Oviatt, 24 Ohio St. 253. Between the passage of the condemnation and assessment ordinances and an advertisement of a tax sale, ample time elapses, and ample notice of the proceedings to appropriate and assess is provided for to enable the owner to go into court, and contest the assessment by application for injunction.

If special assessments are not paid by tbe time stipulated in the ordinance providing for the same, they may be recovered by suit, or the lien therefor may be enforced in the name of the corporation against the property owners. Revised Statutes, § § 2285,2286,2294. And in a suit to recover the assessment or to enforce the lien therefor, the owner of the property assessed may set up in defense the illegality of the assessment. In Murdock v. Cincinnati, 25 Weekly Raw Bulletin 26, U. S. Circuit Court, S. D. O., it was said by JacesoN, J., “It appears that the city of Cincinnati is now proceeding by civil suit in the state courts, against complainant, to collect the assessment in question. To that suit complainant may interpose any and all defenses going either to the validity or regularity of such assessments. Such suit gives him a full opportunity to be heard, and affords him the privilege of presenting every objection that can possibly be made, either under the Constitution of the United States, or under the Constitution and laws of Ohio, to the validity of the assessment. It cannot be questioned that the judgment which may be rendered against complainant in said suit, will constitute “due process of law.” If the owner of assessed property may have the benefit of the law of the land or due process of law, in a suit against him by the corporation making the assessment, he may also have the benefit in a suit by himself against the corporation, wherein the same questions can be determined.

In the case, Central Ohio Railroad Co. v. The City of Columbus, decided by this court, without report, Decémber 17,1889, (23 Weekly Raw Bulletin 3), and referred to by counsel, the original action was brought by the city to recover an assessment upon the land of the company, for a street improvement by grading, paving and graveling. It was contended by the company, that the notice provided in section 2304 had no reference to any assessment that might be subsequently made in connection with the improvement, or to the defrayal of the cost and expenses thereof, and that the assessment had therefore been made upon the property of the defendants without notice, and was a taking of their property without due process of law. But this court affirmed the judgment of the circuit court, and found no invasion of the constitutional rights of the railroad company.

In connection with the case at bar, we have examined the two cases, The City of Cincinnati v.J. G. Rademacher, begun in the Court of Common Pleas - of Hamilton County, to enjoin an assessment to pay for opening Burns street, and the case, The City of Cincinnati et al. v. Lars Auderson, Executor, commenced in the Superior Court of Cincinnati,to enjoin an assessment to pay for widening Ravine street. In the first case, we find no error in the judgment of the court of common pleas, and are of opinion that the circuit court erred in reversing the judgment of that court as to the third cause of action set forth in the petition below. In the second case, in which there was a condemnation of land to widen Ravine street, we have considered the question of a preliminary estimate of the probable cost of the improvement, and of a recommendation by the Board of Public Affairs, and of the passage of a resolution declaring the necessity of widening Ravine street, and we find that the superior court in general term erred in reversing the judgment of the superior court in special term. In the two cases judgment should be rendered in accordance with such findings.

In the case at bar, our conclusion is, that the judgment of the circuit court should be affirmed.

ftdgment accordingly.  