John Ryan & Co. v. City of Cincinnati

Ohio Superior Court, Cincinnati

John Ryan & Co. v. City of Cincinnati

1 Cin. Sup. Ct. Rep. 245

DecidedApril 15, 1871

StatusPublished

This text of 1 Cin. Sup. Ct. Rep. 245 (John Ryan & Co. v. City of Cincinnati) is published on Counsel Stack Legal Research, covering Ohio Superior Court, Cincinnati primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

John Ryan & Co. v. City of Cincinnati, 1 Cin. Sup. Ct. Rep. 245 (Ohio Super. Ct. 1871).

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Opinion

Taft, J.

The plaintiffs rely upon the provision in the act of April 13, 1865, authorizing municipal corporations to levy assessments for the improvement of streets, etc., “ that in no cases shall the tax levied and assessed upon any lots or lands, for any improvement authorized by this section, amount to more than fifty per centum of the value of said lot or land, to be estimated after the said improvement has been made, and all the cost of said improvement .exceeding said per centum, that would otherwise be chargeable on said lot or land, shall he paid by the municipal corporation out of its general revenue.”

The contract in the present case was made, as we have seen, in 1868, since the enactment of the statute relied on. The plaintiffs claim that the ordinance under which the contract was made was passed in 1850, long before the statute referred to, and it must, therefore, be interpreted without reference to the fifty per cent, limitation under the statute of 1865, or as impliedly excepting the excess above fifty per cent, of the said property to be paid by the city. Although the ordinance was adopted in 1850, the contract speaks as of 1868, when it was made, and we have to read it as of that date to ascertain what it means. Thus [248]*248reading it, we can put no construction upon it consistent with the city remaining liable for the excess above fifty per cent, of the value of any of the lots fronting on the street improved. The language is sweeping, and we know no canon of construction by which we can insert the exception claimed by the plaintiff’s.

The contract is express that-the plaintiffs shall rely upon the assessment made according to the ordinance, and in no event hold the city liable for any part of the work or material. It would be entirely inconsistent with, and a contradiction of this contract, to hold that the city is nevertheless liable for the cost above fifty per cent, of the value of any lot fronting on the street.

The next question is, whether the contract thus construed is .binding upon the plaintiff's. So far as it relieves the city of the cost of the improvement above fifty per cent, of the value of the assessed property, it is an evasion of the statute of 1865, and tends to increase the assessment on other property. But the plaintiffs are parties to the contract, and have had and - are seeking the benefit of it, and they can not, in the face of it, claim to recover this sum from the city. This is the result of the recent decision of the Supreme Court, in Welker v. Toledo, 18 Ohio St. 452, which case we regard as identical in principle with the present, where it was held “that in such cases the contractor himself can not, in violation of his own contract, recover the excess from the city.”

The only difference between that case and the present is, that in that case the contract was that the contractor should not have recourse upon the city for the excess of the assessment above fifty per cent, of the value of the lot assessed, while in the present case the contract is that the city shall in no event be liable to the contractor for any part of the work or material. But, in our opinion, the contracts must receive the same construction so far as the alleged liability to the contractor is concerned.

Judgment at Special Term is affirmed.

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Taft, J.

The plaintiffs rely upon the provision in the act of April 13, 1865, authorizing municipal corporations to levy assessments for the improvement of streets, etc., “ that in no cases shall the tax levied and assessed upon any lots or lands, for any improvement authorized by this section, amount to more than fifty per centum of the value of said lot or land, to be estimated after the said improvement has been made, and all the cost of said improvement .exceeding said per centum, that would otherwise be chargeable on said lot or land, shall he paid by the municipal corporation out of its general revenue.”

The contract in the present case was made, as we have seen, in 1868, since the enactment of the statute relied on. The plaintiffs claim that the ordinance under which the contract was made was passed in 1850, long before the statute referred to, and it must, therefore, be interpreted without reference to the fifty per cent, limitation under the statute of 1865, or as impliedly excepting the excess above fifty per cent, of the said property to be paid by the city. Although the ordinance was adopted in 1850, the contract speaks as of 1868, when it was made, and we have to read it as of that date to ascertain what it means. Thus [248]*248reading it, we can put no construction upon it consistent with the city remaining liable for the excess above fifty per cent, of the value of any of the lots fronting on the street improved. The language is sweeping, and we know no canon of construction by which we can insert the exception claimed by the plaintiff’s.

The contract is express that-the plaintiffs shall rely upon the assessment made according to the ordinance, and in no event hold the city liable for any part of the work or material. It would be entirely inconsistent with, and a contradiction of this contract, to hold that the city is nevertheless liable for the cost above fifty per cent, of the value of any lot fronting on the street.

The next question is, whether the contract thus construed is .binding upon the plaintiff's. So far as it relieves the city of the cost of the improvement above fifty per cent, of the value of the assessed property, it is an evasion of the statute of 1865, and tends to increase the assessment on other property. But the plaintiffs are parties to the contract, and have had and - are seeking the benefit of it, and they can not, in the face of it, claim to recover this sum from the city. This is the result of the recent decision of the Supreme Court, in Welker v. Toledo, 18 Ohio St. 452, which case we regard as identical in principle with the present, where it was held “that in such cases the contractor himself can not, in violation of his own contract, recover the excess from the city.”

The only difference between that case and the present is, that in that case the contract was that the contractor should not have recourse upon the city for the excess of the assessment above fifty per cent, of the value of the lot assessed, while in the present case the contract is that the city shall in no event be liable to the contractor for any part of the work or material. But, in our opinion, the contracts must receive the same construction so far as the alleged liability to the contractor is concerned.

Judgment at Special Term is affirmed.

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1 Cin. Sup. Ct. Rep. 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-ryan-co-v-city-of-cincinnati-ohsuperctcinci-1871.

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