Corry v. Folz, O'Brien & Co.

Gilmore, J. The regularity of the proceedings in the improvement of Hammond street, and the assessment of the special tax on the property of the defendant for the payment of the expense thereof, by the city council, nor the extent to which the assessment, as such, operated as a lien upon blocks 28 and 29 respectively, are not before us for review. The record in the action brought against the defendant below by the contractors, to whom the assessment was de [328] livered in payment of the work, to recover the amount of it, is alone before us. The facts appearing in the record in reference to the assessment, and the situation and nature of the property assessed, consist of the statements of the petition alone, and they are not such as to require us to decide whether the court below erred (1) in assessing the whole of a block for the improvement of one street, or (2) in not ascertaining what lots or parts of each block ought to be assessed for the improvement of Hammond street. The only question presented on the record requiring a decision is that raised by the first assignment of error, which is: “ That the court erred in assessing the whole amount of the special tax against two separate blocks in gross.” If the court erred in this respect, and the order made affected the substantial rights of the defendant below, the judgment or oi’der may be reversed on error. Code of Civil Procedure, sec. 512. The assessment was for a sum certain upon each front foot of the property abutting upon the street in question. The blocks were on opposite sides of the street, but this does not necessarily affect the question, as the same principle would apply if they were on the same side of the street, and subject to the assessment. Eor assessments thus made, each abutting lot or parcel of land is separately liable for the amount assessed upon it, provided the amount does nofc exceed twenty-five per centum of the value of such lots or lands after the improvement is made. Sec. 543 Municipal Code, as amended; 72 Ohio Laws, 68. This limitation upon the power of assessment, constitutes a part of the general policy of the law in reference to special assessments for municipal improvements, and is intended for the protection of the citizen, and to prevent a sacrifice of his property, and it is, therefore, not directory, but mandatory. The assessment, whether upon each front foot or upon the value assessed for taxation, must be'uniform, operating alike upon all the lots or lands so abutting and assessed, and [329] where such assessment exceeds twenty-five per centum upon its taxable value, or its value after the improvement is made, as the ease may be, the excess must be paid from the general revenue. Northern Ind. R. R. v. Connelly, 10 Ohio St. 159; Upington v. Oviatt, 24 Ohio St. 232. The record shows that the finding of the court was that the aggregate amount of the assessment on both blocks in gross was due to the plaintiffs below, and this gross sum was declared to be a lien on both blocks entire, and they were both ordered to be sold to pay this gross amount. Even admitting that the' assessment was the same upon each block, and that they were of equal value; still each block should have been assessed separately with one-hall of the entire assessment, for the reason that it might have been in the power of the owner to pay the assessment upon one of the blocks, and not upon both. But the assessment having been made in one gross amount, and declared by the court to be a lien on both blocks, he could not have done this, for both blocks could have been sold to discharge the lien. But assuming what is probably the truth, that the blocks are not of the same value, then a stronger reason why they should have been separately charged with the amount assessed against each respectively, is, that the assessment in gross, as made by the court, virtually deprives the owner of the protection intended to be given by the limitation above referred to, by rendering its application impracticable. Eor illustration, one of the blocks, after the improvement is made, may be valued at a sum only equal to the amount of the assessment against it, in which event it would be liable for only one-fourth of the assessment against it, and the residue would be paid from the general revenue, and the owner would be relieved to this extent. But suppose the other block to be valued, after the improvement is made, at a sum equal to seven times the amount of the assessment against it, still it would only be legally liable for the amount that should have been separately assessed against it; but the assessment being in gross, and this gross sum being made a lien on both blocks, the valúa [330] ble block would thereby be made to pay seven-eighths of the gross assessment, and the less valuable block only one-eighth ; and inasmuch as the aggregate assessment would only be twenty-five per centum of the aggregate value of the blocks after the improvement was made, they would be jointly liable to pay the gross amount of the assessment. The owner would thus be deprived of the protection of the twenty-five per centum limitation. The judgments of the courts below must be reversed. Motion granted, and the judgment .of the superior court in general term and its finding and order at the special term reversed, and cause remanded for such further proceeding as may be authorized by law.