Butler v. City of Toledo

Brinkerhoff, J. This is a bill in chancery, originally filed in the common pleas of Lucas county, for an injunction .to restrain the city of Toledp from the collection of an assessment, ordered by the corporate authorities of the city, on certain lots of — 229 — complainant, bounding on Summit and Water streets, for the purpose of paying the unpaid balance of the cost of grading said streets, and other expenses incidental to said improvement; and is reserved for decision here from the district court of that county. It seems that in and prior to the autumn of 1848, ordinances had been passed by the city.authorities, under their charter, ordering the grading of Water street to Lagrange street, and of Summit street to the easterly side of Elm street; but no provision was made for the grading of Summit street east of Elm street, or of the cross streets north of Summit. Preliminary surveys and estimates of the cost of the projected improvement, were made by the city engineer; contracts for the work were entered into; a local assessment on the lots bounding on and near to the improvement was made, to meet the estimated cost; and the work was done. The contracts having been made on the basis of a certain price per yard for excavation and embankment, it was found, on the completion of the work and its measurement by the city engineer, that the cost exceeded the preliminary estimate. In addition to this, the payment of the assessment was for a long time resisted by different owners of lots assessed, thus leading to the accumulation of a considerable amount of costs in court, attorney’s fees, printer’s bills, and interest — which the city authorities had resolved to allow — on the unpaid orders issued to contractors on the city treasury, and the like; so that a large deficit was found to exist in the amount necessary to meet the costs of the work and the expenses incidental to, and growing immediately out of, the improvement. It being doubtful whether the city charter, as it then stood, would authorize a local re-assessment to meet this deficit, or whether the same would have to be met out of the general fund of the city, application was made to the general assembly of the State, which, on the 29th of January, 1851, passed, among others, the following amendment to the charter : Sec. 1. That it shall and may be lawful for the common council of the city of Toledo, in all cases of special assessment heretofore made, or hereafter to be made, for the grading, planking, paving — 230 — or other improvement of the streets, lanes or alleys, squares and public places in said city, where the same shall have proved or may hereafter prove inadequate, defective or insufficient, by reason of any error or defect in the proceedings of said council, or any of its committees or officers, or assessors, or insufficient in amount, to cause a new and further assessment to be made upon the property originally chargeable with the cost of said improvement, sufficient in amount to meet said deficiency and the costs and expenses of such re-assessment, and all other expenses incidental to said improvement, and to levy and collect the tax therefor, at any time in the year other than the time prescribed by the charter of said city, for collecting the annual taxes of said city, as well as at the times of collection of said annual taxes; and in case any person shall be dissatisfied with the re-assessment aforesaid, the same right of appeal shall be had, and in case of any appeal, the same proceedings shall be had as is hereinafter provided in the case of other assessments for improvements of streets,” etc. Ohio Laws, vol. 49, page 71. And, on the 21st of July, 1851, the city council proceeded to re-assess, on the same lots before assessed, the aggregate sum of $9,086.36, that being the estimated amount of the deficiency before mentioned. This aggregate deficiency is made up of the following items : Orders outstanding. Interest accrued and estimated to accrue, before tax can be collected. Eor re-imbursement of general fund, for payments made out of it on expenses of this improvement, and interest. Costs and law expenses. Printing. Compensation to city officers for services in the making of said improvements, in the litigation growing out of them, and in the levying and collection of the assessment and re-assessment. And it is to restrain the collection of the aggregate re-assessment thus constituted, that this bill is filed. It appears that the complainant became the owner, and acquired title under deeds of quit-claim, of a portion of the lots assessed, between the time of — 231 — the first assessment and of the subsequent re-assessment. It further appears, that of the total amount of orders issued to contractors for the work, amounting, without interest, to something over $33,000, the sum of $1,017.58 is for work done on Summit street east of Elm street, and on cross streets north of Summit, and therefore not expressly embraced in the terms of the city ordinances authorizing the assessment and re-assessment. On this state of facts, it is claimed in behalf of the complainant, 1. That any local re-assessment on his lots, for the purpose of making up any deficiency in the amount of the original assessment, is unauthorized by law ; and this on the ground that the proceedings, and the laws under which they were had, are retroactive and operate to impair his vested rights. To this claim we cannot assent. The amendment to the city charter, of January, 1851, clearly authorizes a re-assessment of some kind and to some amount, and is a valid law, binding on all persons and property within its purview, unless its provisions are found to be in contravention of the constitution of the United States, or of the State constitution of 1802, under which the amendment was enacted and these proceedings were had. This amendment is not an ex post facto law ; for such laws relate to crimes only, and constitutional provisions on the subject of them have no application to civil proceedings. 1 Blackstone’s Com. 46 ; Dash v. Van Kleck, 7 J. R. 488-9. Nor does it impair the obligations of any contract. The constitutipn of 1802 contained no provision against retro-active or retrospective laws ; and such laws, passed under that constitution, have always been upheld, where they “violated no principle of natural justice,” and were in furtherance of it. Lewis v. McElvain, 16 Ohio Rep. 347; Trustees of C. F. R. E. A. v. McCaughy, 2 Ohio St. Rep. 155. Here the property of the complainant had reaped the benefit of a local improvement, for the making of which the property was originally and justly liable to contribute. By a mistake in the preliminary estimate of cost — a thing of no rare occurrence, and affording no presumption of fraud — the fund first assessed proved to be insufficient. It is but just that he should — 232 — contribute ratably to supply the deficiency, and if he refuses, it is but just to compel him. Nor do we see how any vested right is impaired by the fact of his purchase intermediate the ássessment and re-assessment. He voluntarily purchased lots in a young and thriving city, to the prosperity and growth of which, assessments for purposes of local improvement were absolutely essential, and which, as a reasonable being, he must have anticipated. He purchased his lots subject to any burden which the State might lawfully impose, and we cannot perceive how the vested rights of complainant are any more impaired than are those of every recent purchaser of real estate in Ohio, whose estate is now yearly taxed for the payment of interest and principal on a State debt contracted long before his purchase. The complainant claims, 2. That, admitting an asssesment to make up the proper deficiency, if any, in the original fund to have been authorized by law, still this assessment is illegal, because the amount includes items not properly embraced within it. And First. It is alleged that the original measurement by the city engineer of the work done, was erroneous, and too favorable to the contractor. On the question of fact thus presented, and without going into a detail of the evidence on which our conclusion is based, we content ourselves with saying that the evidence fails to satisfy us of any substantial error in the original measurement. Second. It is contended that interest on outstanding orders ought not to be included in the amount of the re-assessment. The contracts for the work provide that the contractors “ shall be paid in warrants of the mayor of said city, and shall be payable only out of the fund to be collected as aforesaid.” Rut surely the contractors-had a right to expect that the fund would be collected within some reasonable time ; and when its collection was unexpectedly, and, to the contractors, ruinously delayed, we think the contractors had a legal right to demand interest on the dishonored warrants of the city; that the city authorities had a legal right to allow interest; and that it is rightfully included in the re-assessment, as one of the “ expenses incidental to said improvement.” — 233 — The same may be said in respect to other items — such as costs, attorney’s fees, printer’s bill, and compensation of city officials for superintending the work, making measurements, defending suits instituted to restrain the collection of the assessment, and the levying and collection of the assessment. None of these items would have accrued had it not been for the improvement, and they are, we think, legitimately classed among the “ expenses incidental ” to it. , 3. And finally, it is claimed that of the $33,096.07 of orders drawn for the cost of this improvement, the sum of $1,017.58 was on account of work done on Summit street east of Elm, and on the cross streets north of Summit, neither of which were embraced in the terms of either the ordinance directing the improvement or the contracts for the work. We fully admit that it is essential to the validity of this re-assessment, that all the money to be collected under it, shall have been expended substantially in the improvement directed by the ordinance; and we have not been free from embarrassment in our deliberations on this point. But, it satisfactorily appears in the evidence that the improvement in Summit street consisted almost entirely of excavation, varying in depth from three to six feet; in consequence of which, and of the perpendicular cuttings thus made at the points of intersection with the cross streets north of it and with Elm street, all ingress and egress to and from that part of Summit street covered by the improvement, would have been effectually barred, had not the excavations been extended somewhat into the cross streets north of Summit, and into Summit east of Elm. Had the projected improvement been thus left, it would have been no improvement, but a detriment; and, on the whole, we are satisfied, from the nature of the improvement itself, and from the small proportion of the whole amount expended on them, that these extensions of the excavations beyond the strict line of the main work, were substantially and properly part and parcel of the main work, rather than improper and unauthorized departures from it. Injunction dissolved, and MU dismissed with costs.