Lowden v. City of Cincinnati

2 Disney (Ohio) 203

• Court: Ohio Superior Court, Cincinnati
• Decided: May 15, 1858
• Docket: No. 7,931
• Status: Published

Opinion

Gholson, J.

The petition alleges, as reasons why no proceedings were taken against the owners of real estate, as required by the condition in the contract — 1st. That the city council have refused to make an assessment, without which the plaintiff could not proceed against the owners of real estate. 2d. The original ordinance was illegal and void, and the city had no power to make any assessment, having illegally commenced the proceeding. Upon these points, by an answer of the city, issue is taken. The omission to demand payment, as required, is set up as a bar to the plaintiffs recovery.

The first question which it is proper to consider in this case, is as to the validity of the ordinance passed on 21st June, 1843, in pursuance of which the contract was made. It is claimed that this ordinance is to be construed as imposing a tax on the owners of real estate personally, and to be collected not as a charge on their real property, but as a charge on them individually. The same rules of construction are to be applied in ascertaining the meaning of an ordinance of the city, as would govern in reference to any other code of laws. When it is said that a special tax is to be assessed and collected from owners of real estate, according to the ordinances in such case made and provided, we must refer to those ordinances to ascertain the meaning of any expression about which a doubt may arise. All laws in pari materia, should properly be examined, whether referred to or not, and much more when there is an express reference. By reference to the city ordinances, one will be found in force on the day the ordinance in question was passed, entitled “ An ordinance to provide for levying and collecting special taxes for improving the pavements, streets, etc., passed May 29th, A. D. 1839. This, undoubtedly, must be one of the ordinances referred to; and in its 4th section will be found the proceedings to enforce the payment of a special tax from the owners of real estate. These proceedings are, first, a demand on the owners for the amount assessed; and, second, on their refusal to pay, a warrant to the proper officer of the city for the seizure and sale of the real estate, giving a right of redemption within a specified time. It is not true, therefore, upon a fair and reasonable construction of the ordinance of the 21st Jnne, 1843, that it exceeds the power of the city council in the respect claimed, and the objection made must fail.

It would, undoubtedly, be a valid and sufficient excuse for not making the demand on the owners of real estate, provided by the contract, that the city council refused to give an assessment, and thereby put it out of the power of the contractor to comply with the condition. In point of fact, then, as shown by the evidence, has the city council so refused? No direct refusal has been shown from the records of the city. A proposition to make the assessment has been introduced in the ordinary mode, and from all that appears, is still pending and undetermined. lias there been such unreasonable delay and neglect as to amount to a refusal ? Even if this could be claimed in an ordinary case, certainly, it would appear the circumstances of this case forbid any such conclusion.

The plaintiff, in July, 1843, undertook a job of work to be completed within two years. At his request, the time was extended for nearly three years longer. It was then left unfinished, and no effort to complete it made for nearly five years. It is then assigned for completion to another person, who, apparently, from the evidence, undertakes it as incident to another contract which he had made. It progresses for several years longer, and, finally, a certificate of its completion is submitted to the council, more than fourteen years after the contract had been entered into. Even admitting that there may have been circumstances accounting for, and explaining, to some extent, this unprecedented delay, surely, the city council was entitled to ask something more than the ordinary time for the transaction of such business, to inquire into those circumstances. It may be that it was their duty, notwithstanding the delay and neglect of the contractor, to issue the assessment. It may be that it was not; but they were entitled to a reasonable time to make the necessary inquiries, and become informed of all the circumstances. The plaintiff, certainly, is not in a position to complain of delay, unless clearly unreasonable.

There are, also, in the ease circumstances explaining the delay on the part of the city council, in acting upon the proposition to make an assessment. When the ordinance was first introduced there was a petition in the nature of an intervening claim on the part of the sub-contractor. Again, there was no regular and formal certificate that the work had been done according to contract. This certificate, in fact, was not procured and supplied until after this suit was commenced. It may be that the delay, in this respect, was occasioned by the fact that the contract had been mislaid. This might well happen in the long lapse of time that the completion of the contract had been delayed, and, as before observed, it is not for the plaintiff to urge others to extraordinary diligence. A delay of several months, might well have been allowed to find the written contract, and ascertain whether its terms had been complied with, when a period of nine years, in addition to those allowed, had been taken for its completion.

I do not intend to decide what might be the rights of the plaintiff, in the event the city council had distinctly refused an assessment. The decision of that question will involve considerations to which I have not adverted, and, particularly, one transaction as to which the information before us is quite meager; I allude to the recent building of a wall by the city, which, it is said, was to enable the plaintiff to complete the work under the contract. Still less is it for me to decide, as to the duty of the city council to make an assessment under all the circumstances of this case. That is a matter for the judgment and discretion of the city council. I do, however, decide that, in the attitude in which the case is now presented, the plaintiff has not satisfied me that there has been either a refusal or any neglect which would' amount to a refusal on the part of the city council, to make an assessment. The plaintiff, therefore, from all that appears in this case, has not been prevented by the defendant from complying with the condition in his contract, and, therefore, can not recover.

Judgment for defendant.