Krumberg v. City of Cincinnati

White, J. Under the municipal code, as originally passed, the cost of real estate appropriated for streets, was required, when raised by taxation, to be levied upon all the real and personal property subject to taxation within the limits of the corporation. Municipal Code, sections 55,539, 583; 66 Ohio L. 240, 246. The special assessments, authorized by section 576, to pay the cost of improvements, has no relation to the acquisition of real estate for the making of such improvements, but to improvements to be made where the necessary real estate has been acquired. It was to assessments thus made that the provisions of the original act for carrying them into effect related. Chapter 15 of the municipal code, is devoted to defining the general powers of municipal corporations. Among the powers granted is the power “to lay off, establish, open, widen, straighten, extend, improve, keep in order, and repair . . . streets.” Chapter 47 has reference to appropriations of private property for public uses. Among the uses to which such property is authorized to be appropriated is the “ opening, widening, straightening, and extending streets.” Prior to the amendments of sections 539 and 583, the cost and expenses of appropriating private property for opening, widening, straightening, or extending streets, could only be raised by general taxation; but the cost and [75] expense of improving them might be raised by special assessments, as authorized in section 576. Sections 539 and 583 were amended March 29, 1872 (69 Ohio L. 59), and April 11, 1873 (70 Ohio L. 126). The amended section 539 provides, “that where the-council of any municipal corporation shall appropriate any lots or lands for the purpose of laying off, opening, extending, straightening, or widening any street, alley, or public-highway, it shall have power to assess the costs and expense-of such appropriation and improvement upon the lots or lands benefited thereby, including lots and lands that are contiguous and adjacent, as well those that abut upon said street or highway.” . . . The amended section 583 prescribes the mode in which the power of assessment is to be carried into effect, in cases in which the council determine to exercise the power for the purposes authorized in section 539. The State ex rel. v. Strader, 25 Ohio St. 527. Section 583, among other things, provides that such assessments shall be made and ajiproved in accordance with the provisions of certain other sections named. Among the sections named are the following: Section 584, which provides for charging the assessment on the lots in proportion to the benefits which may'result from the improvement. Sections 585 and'586 provide for the publication 'of notice of the proposed assessment, and for filing objections, and, if objections are filed, for the appointment of an equalizing board. Section 587 prescribes the duties of the equalizing board, and authorizes the council to confirm their repoi’t, or set it aside and order a new assessment. Section. 588 provides that “ when such assessment is confirmed bythe council, the same shall be complete and final.” The word improvement is used in the act in various senses. Its meaning in any given instance will depend upon the subject to which it- is applied,-and the connection in which it is used. There seems to be no necessary connection between the improvement of a street by appropriating property to76 widen or extend it, and improving it by grading, paving, and macadamizing. The one may be accomplished without the other; and the city council, under the statute, may pay for one improvement by general taxation, and the other by special assessment, as may be deemed just and reasonable in the particular case. In the one case the money collected by the assessment goes to the city to reimburse it for the money paid for the property appropriated ; in the other it may be paid to the contractor for doing the work. If, in the present case, the street had been widened before any provision had been made for otherwise improving it, the absence of such provision would certainly have constituted no objection to an assessment to pay the cost of •such improvement. We are of opinion, therefore, that the objection now made, that the power'of the city council to assess the property of the plaintiff in error for the expense of widening the street was exhausted by the first assessment,is not well taken. It is further objected that the ordinance of March 15, 1872, providing for the improvement of the street by grading, etc., was passed while the law required appropriations of private property for the purposes of a street to be paid for by general taxation; and that the subsequent amendment of section 539, authorizing the cost of such appropriations to be levied by special assessment,man not apply to the street in question. The views already expressed answer this objection. The proceedings to appropriate were not instituted until after the power to assess the cost of the property appropriated was given; and the plaintiff in error had no vested right to have the property paid for under the anterior law. Another objection urged is that the council did not declare by resolution the necessity of widening the street, and publish such resolution, as required by section 563 of the municipal code. That section, by its terms, only applies to “ improvements not otherwise specially provided for.” [77] The appropriation of private property to public use is-specially provided for in chapter 47. Sections 511 and 512 prescribe what the council is required to do when it is deemed necessary to make such appropriation ; and when the property is required for the purposes of streets, alleys,, or public highways, the requirements of these sections seem to be modified by section 583 as amended, and to which reference has already been made. In support of the objection, counsel cite the cases of Welker v. Potter, 18 Ohio St. 85, and Smith v. Toledo, 24 Ohio St. 131. Both of these cases arose under the act of April 5, 1866. S. & S. 834. Under the peculiar phraseology of that act, it was held, in Welker v. Potter, that the adoption and due publication of the resolution declaring the necessity of the-improvement was a necessary prerequisite to the exercise-of the power of assessment under that act. But, as was said by the court in Upington v. Oviatt, 24 Ohio St. 242, the case of Welker v. Potter is not applicable-to section 563 of the municipal code. See also Finnell v. Kates, 19 Ohio St. 405. Section 505 is also relied on, as invalidating the assessment in question. That section provides that “ no improvement or repairs shall be ordered or directed by the council, . . . for any street, lane, alley, avenue, market houses or spaces, etc., except on the recommendation of the board of improvements.” Looking to the powers and duties of the board of improvements, it may be questionable whether their recommendation is necessary, before the council can acquire real estate, by appropriation or otherwise, for any public use;. but, however this may be, we are not called on, in this case, to determine the question. We think the recommendation made by the board, on the 11th of December, 1871, embraced the widening of the street between Church and Kline streets. The improvement recommended was to be made in accordance with the-specifications on file, which required the street to be of the78 full width of sixty feet, from Kline street to the Madison road. In regard to the claim that the assessment is excessive, it is sufficient to say that there is nothing in the bill of exceptions showing the actual value of the property, either before or after the improvement was made. The bill of exceptions contains a certificate of the auditor, showing the value of the property as assessed for taxation ; but that value is not the test by which the assessment is limited. The point made — that the property assessed is to pay, in part, for other property of the defendant, appropriated for the purposes of the street — is determined by the case of the City of Cleveland v. Wick, 18 Ohio St. 303, and by subsequent cases following that decision. Leave refused. Rex and Gilmore, JJ., dissented.