Whipple v. Toledo (City)

19 Ohio C.C. Dec. 42, 7 Ohio C.C. (n.s.) 520

• Court: Lucas Circuit Court
• Decided: October 14, 1905
• Status: Published

Opinion

PARKER, J.

This case is here on appeal. It is an action to enjoin certain assessments levied by the city. The assessments are for the costs of the acquiring certain real estate to straighten Twelfth street at a point where it runs into Union street, so as to make it continuous to Union street, without a jog, which requires the taking of lots 92, 93 and part of lot 94, lying upon the west side of Union street and the north side of Jackson street. It appears that the city acquired this property by condemnation proceedings for the purpose of straightening the street, as is stated, and that the costs, the entire costs, included the costs which were' assessed upon certain property upon Union street and upon Twelfth street, which amounted to about $2,650.

The persons whose property was assessed to pay these costs join in this case to enjoin the assessment. Their properties lie along Twelfth street between Adams and Jackson, and on Jackson avenue and Union street between Jackson avenue and Woodruff avenue. They contend that this assessment is invalid on various grounds that I will take up and discuss in their order. But first it may be said that it is conceded on all hands that, in a strictly adversary proceeding, an assessment may not be made upon private property for the costs of an improvement of this character. It has been so held in the case of the Cin. L. & N. Ry. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229; 49 L. R. A. 566], and more distinctly in the case of Dayton v. Bauman, 66 Ohio St. 379 [64 N. E. Rep. 433]. It was held in those cases that the law providing for the assessment of the costs of improvements of this character upon benefited property is unconstitutional.

But this is not the only ground upon which plaintiffs undertake to have the assessments enjoined; for it is insisted upon the part of the city that the circumstances of this case are such as that these property owners are required to pay the costs of this improvement under the doctrine of agreement and estoppel laid down and enforced by this court, as we believe in accordance with the decisions of the Supreme Court, in the case of Hendrickson v. Toledo, 13-23 O. C. C. 256. The plaintiffs insist, however, that this case does not apply to the case at bar; that there is nothing in the circumstances of this case that would justify the levying and collecting of this assessment upon the theory that there had been an agreement to pay; or that there was any estoppel. \

The history of this case, briefly, is as follows:

In 1900, in the latter part of the year and the early part of 1901, a petition was circulated among the property owners along this pan of Twelfth street and Union street, which was signed by some of them, including the plaintiffs here, or part of the plaintiffs here, asking the council to straighten Twelfth street by acquiring this property so as to take out the jog where Twelfth street and Union street come together. It appears from the oral testimony that we have heard that this place was very unsightly and the people in the neighborhood were anxious to have this improvement made for that reason; that the lots were low and had been filled in with all sorts of debris and just at this point, jutting out into the street where it was plainly visible from all these properties (which was residence property), there was an old shanty that was an eyesore of the neighborhood. So it appears that this petition was prepared, circulated and signed. The persons who were active in forwarding this enterprise and had this improvement made were Mr. Macomber, Mr. Drago and Mr. Thomas, each of whom owned property in the neighborhood. That petition reads as follows:

“To the Honorable Council of the City of Toledo, Ohio:

“Gentlemen: — We, the undersigned, owners of property fronting upon or abutting upon Twelfth street, between Adams street and Jackson avenue, and on Union street between Jackson avenue and Woodruff avenue, respectfully petition your honorable body to take the necessary steps to condemn and appropriate for public use and highway, lots 92, 93 and so much of lot 94 as is necessary in Central Addition to said city for the purpose of extending Twelfth street a uniform width to Union street and widening said Union street. We believe and acknowledge our respective properties would be benefited by the opening and widening of said street, as stated above. We consent that a special assessment be made to pay the costs and expenses thereof upon the property abutting upon said street as stated above. We consent that our respective properties be so assessed for the purpose named herein as provided by law.”

This petition as first prepared, instead of being addressed as I have read to the “Honorable Council,” was addressed to the “Honorable Common Council.” It seems that during the pendency of these proceedings in the council, the new code was adopted, and that the designation of the council became simply the “Council,” instead of as it had been formerly “the Common Council.” And someone has made it conform to the new name by striking out the word “common;” otherwise the petition itself is unchanged.

Mr. Lowenshal was the agent of the parties circulating this petition, and it appears that he was actively engaged in forwarding this work until some time in June, 1901. He had filed the petition with the proper officers of the city somewhat earlier, but he still manifested interest in the matter, and on June 22, he attached a certain affidavit to the petition, and he says that upon that day he urged the city solicitor to push the matter forward. I am particular about mentioning these dates because it is urged upon the part of these property owners, as one of the grounds of relief, that the council of Toledo was so long in acting upon this petition that they lost jurisdiction of the matter. That, as we understand it, is the substance of that' claim on the subject of delay, and that in the meantime before action was taken by the council there had been a change in the law on the subject.

Now it appears from the testimony of Mr. Northup, who was assistant city solicitor at that time, that he indorsed upon the wrapper then upon the petition, in accordance with the customs of that officer, that the petition was not approved, and I believe he stated in his testimony that he did that upon the ground there was not a sufficient number of signatures to it. It seems that the matter was taken up afterwards and other names were signed to the petition and a new back was put upon it; that the people upon the streets were not content to give up, but still desired to have the straightening of the street accomplished; so it seems to have been circulated again; some six or seven other signatures were obtained and the petition was then refiled on May 15, 1903. In pursuance of this petition, a resolution to condemn was adopted on June 29, 1903, and an ordinance to appropriate was passed on July 28, 1903, and in pursuance of this the property was acquired: and on April 11, 1904, a resolution to assess was adopted, the report of the assessors was received on May 4, 1904, and the assessing ordinance was passed on July 18, 1904; and soon thereafter in pursuance of law the assessments wére certified to the county auditor and entered upon the tax duplicate against these properties.

Now we are of the opinion that this delay alone was not sufficient to invalidate the petition, notwithstanding the fact that some changes in the law were made in the meantime. The parties never withdrew their petition nor took any steps at all towards dropping or abandoning it: and the change that was made in the law appeared to be a very immaterial matter; for, if these assessments are to be sustained at all, they are not to be sustained upon the theory that the law authorizes them, but upon the theory that the parties had agreed to be assessed, had agreed, in other words to pay the costs of acquiring this property for the straightening of this street, and that, therefore, they were bound to pay; because the city had gone forward and acquired the property and incurred the expense in pursuance of their request and their promise. •

Tbe effect of such action, according to the views of this court is very fully discussed in Hendrickson v. Toledo, supra, and it is not worth while to go over that branch of the subject again. I simply add the remark, however, which I think appears in that report as well, that the law is only effective to this extent (the law being invalid or unconstitutional and not enforcible as law), that it is looked to, and regarded as a scheme or plan for the making of the assessments, which is adopted by the parties as a part of their agreement, when they request that an assessment shall be made and agree that they will pay it.

At .the time this petition was filed there was a law upon the statute books which provided for assessing the costs of this sort of an improvement, and it gave in detail the plans for making the assessments. After these decisions by the Supreme Court holding that that law as to this class of cases was unconstitutional, when the legislature came to the adoption of the new code, they did not undertake to provide for the assessment of costs of this character upon the property of a private owner; and that is the change in the law referred to. But the law, after it was repealed, it seems to us, was about as effective in the way of stating a plan of operations as it was before, it being only necessary for that purpose to find that the parties referred to that law for that plan and adopted it as their plan and made it a pari; of their agreement; and we think that this was so in this instance; and we think that if there were nothing else in the way of the enforcement of these assessments, they might be and should be enforced upon the theory and principle laid down in Hendrickson v. Toledo, supra.

It was said in Hendrickson v. Toledo, supra, that the only objection urged on the part of the property owners to the assessments there was, that the law was unconstitutional; but here, as I have indicated, there are other objections made to them, and one of them, which the plaintiffs seem to regard as very material, is, that of the owners of property between the points where the assessments are levied, between Adams street and "Wood-ruff avenue, that there was not a majority of the owners signed the petition, not a majority of the owners of the feet front, and they call attention to original Sec. 2267 (see Lan. R. L. 3612; B. 1536-221), which, they contend, requires such majority; and it is said in argument that we seemed to have regarded that as important in Hendrickson v. Toledo, supra. We referred to it there, and a majority had signed the petition in that case, but, upon an examination of the statute, we find that the law has been changed in that respect since the transactions involved in Hendrickson v. Toledo, supra; that at that time such a majority of signers was required, and therefore we hold that it must have been contemplated by.the petitioners, when they signed this petition, even regarding it as a proposal or basis of an agreement; it must have been contemplated that a majority would sign, and that the agreement or proposal would not be binding until a majority had signed. And so counsel urge here that the council of the city was not authorized to act upon this as a proposal and make of it an agreement until it had been signed by a majority; but as I say the statute in that respect has been materially changed. Original Sec. 2267, as it then read will be found in 92 O. L. 340, 341. As it read at the time of the transactions at bar it will be found in 94 O. L. 161; and with respect to making assessments upon petitioners in cities of this grade and class contains in parenthesis this exception:

“Except sidewalks, sewers and the appropriation or otherwise acquiring lots or lands for the purpose of laying off, opening, extending, straightening or widening streets, alleys or other public highways, for the power to make which improvement no petition shall be necessary.”

That is, for improvements of that character, no petition was required. The statute that I have been referring to is original See. 2267 (see Lan. R. L. 3612; B. 1536-221). Turning now original See. 2271 (see Lan. R. L. 3604; B. 1536-213), which is also invoked, we do not find that it requires a petition at all in a case of this character. Our construction of that section is, that a petition is only required, or was only required as the law stood at the time of'these transactions, in order to authorize an assessment upon property for an improvement of this character, where it was sought to assess back upon property from which the street or part of the street was .taken, or where it was sought to assess upon property upon intersecting streets, generally a petition was not required at all, and a petition would not be required of persons standing in the relation to the" improvement that the. plaintiffs here stand to this improvement.

It was also urged that original Sec. 2264a (see Lan. R. L. 3600, 3602, 3604; B. 1536-210; 1536-211; 1536-213) provided certain prerequisites to the making of an assessment, which must be observed; otherwise the assessment would not be valid. That section as it then read was as follows:

“In cases provided for in See. 2263 and in eases where an improvement of any kind is made, within cities of the second grade of the first class, and in corporations in counties containing a city of the second grade of the first class, of an existing street, alley, avenue, navigable watercourse or other public highway, and whenever any street, alley, avenue, navigable watercourse or other public highway is opened, extended, straightened, widened or improved, the council of such cities or corporations may decline to assess the cost and expenses mentioned in Sec. 2263, or any part thereof, or the cost or expenses of any part thereof of such improvement, except as hereinafter mentioned, on the general tax list, -in which event such costs and expenses, or any part thereof, which may not be so assessed on the general tax list, shall be assessed by the council of such cities on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in proportion to the benefit which may result from the improvement, or according to the value of the property assessed, or by the foot front of the property bounding or abutting upon the improvement, as the council by ordinance, designating the territority to be assessed may determine before the improvement is made, and in the manner and subject to the restrictions herein contained.”

Then there is a further provision as to how the assessment shall be paid. It does not appear that the determination, of the property to be assessed, or how the property should be assessed, was made by the council before they acquired this property.

We are cited to some decisions to the effect that this is a necessary prerequisite to the validity of the assessment. But as I have remarked before, this was not a strictly adversary proceeding; it was not adversary at all. If it is to be sustained at all, it is to be sustained upon the theory of agreement; and we do not understand that in a ease of this character where an assessment is to be sustained upon the theory of agreement or estoppel, or both, that the council is required to observe all these provisions as to the mode of proceeding." They must be substantially what is requested, what is agreed upon. They must acquire the property, levy and assess the cost thereof upon petitioner’s property according to the plans provided for by the statute. The petitioners for the improvement, are so to speak, “in court.” They have gone before the council. They are subject to its jurisdiction; it is not necessary to serve them with notice of what is going on at every step. They have come in and asked^this to be done; they must take notice of what is being done, so long as there is no attempt at concealment or fraud or undue advantage. They have petitioned for this improvement and they ask that it be assessed upon eertair property; therefore, it is not important to them if the council before it proceeds, should determine upon what property the assessment is to to be laid, for if the agreement to assess has been agreed upon, it' is not important to them if the council should determine before it acquires the property, upon what plan the assessment shall be made; for they have agreed as we construe this proposal that it shall be assessed according to any lawful plan provided in the statute in such eases; and' there seemed to have been several plans provided in the statute in such cases; and the plan adopted here was to assess according to the benefits’ according to the report of the assessor and certainly that would not be an inequitable or unfair plan. That was one of the plans in the statutory scheme of assessments.

Now upon this subject or as being related to it, I call attention to the decision in the case of Murdock v. Cincinnati, 6 O. F. D. 694 [44 Fed. Rep. 726], by Judge Jackson of the circuit court of the United States for the southern district of Ohio. The decision was made January 7, 1891. I read from the syllabus:

“A property owner who petitions for a street improvement, expressly requests that an assessment be made to pay it, and agrees to answer for a deficiency in the collectibility of the assessments against other property owners, thereby waives to insist upon notice or an opportunity to be heard before the assessments are levied.”

“The proceedings of city authorities in levying an assessmenl for a street improvement, in the exercise of the power conferred on-them by statute, and in compliance with a petition therefor, cannot afterwards be impeached by an abutting owner, as being without due process of law, for the lack of notice or opportunity to be heard.”

There is more to the same effect in the opinion, but what I have read from the syllabus indicates what will be found in the opinion. The whole opinion upon the subject is worthy of perusal by parties interested; and we think the principle there laid down and discussed is applicable to what I have,been discussing, with reference to these preliminary prerequisites in the council. And it is applicable also to the next proposition urged by counsel, that no notice was given to them' of the proceedings or of the purpose to assess, etc., and I shall not discuss that further. The ordinary statutory notice was given, or the one provided by law; that is to say, the published notice in the newspaper that an assessment had been made and was on file, giving, the parties an opporunity to come in and object. And it appears that nobody came in, no objection was made; thereupon the assessment wa-> confirmed. The statute further provides that, upon objection, proceedings shall be taken to correct the assessment or make it just and right. .

It is also urged on behalf of these plaintiffs that the counsel ha% not given them what they asked for; that instead of giving them a street, instead of straightening Twelfth street, widening Union street, they have acquired the property and turned it over to somebody else as a dooryard or private park, or something of that sort. It does appear that immediately contiguous to this piece that was acquired by the appropriation proceedings, Mr. Macomber has .built a flat building and that he has filled up this low ground in front and sodded it and put in some trees. This appears to have been done upon the permission of the board of public improvements, and seems to have been a sort of improvement for the neighborhood, because it made the place more sightly. But that it belongs to the city there can be no question, and it is a part of this street, and it will be observed that the petitioners here have not asked for .anything more than that it shall be acquired as part of the street. They have not asked that it be improved by paving or otherwise, and it is not to be supposed that upon the proper application the city would not take possession of it by paving it. In removing the old structure that stood there and making the place sightly, it seems that the real object desired by the petitioners has been substantially accomplished. But-we hold that it is a part of the street; what the petitioners have asked for has been done.

Certain of these plaintiffs have acquired the lots assessed since these proceedings were instituted; I mean after the petition was filed in the council. Now an assessment becomes a lien upon property under Sec. 2255 Rev. Stat. (repealed 96 O. L. 96) from the time it is mad£, which we understand tó be from the time an ordinance was passed levying it; and those who have purchased lots upon the street without notice, prior to the passage of the ordinance, are not bound by the assessments upon their lots. It is said by the city solicitor that all ought to be bound who purchased since the passage of the ordinance providing for the appropriation. But we think not; there is no reference in that to any assessment, nothing said about making' any assessment in that, because the first time the council takes action looking to an assessment to bind the property is when it passes the assessing ordinance. Of course, preliminary to that, it had sent out the assessors.

Now this whole cost, as I have said, has been assessed upon the property of the petitioners. They are less than a majority of the owners of property within the limits described in the petition. They own less than a majority of the foot front of property. Other property situated just as their property is situated, benefited in the same way, to the same degree, has escaped the assessment altogether. Of that perhaps they would have no right to complain, were it not for the fact that the assessments which would naturally have gone upon that property, if all the property had been assessed, has gone upon their property; it has increased their burden. It is urged by the city solicitor that those who signed the petition agreed that they would bear the whole burden. It would follow that the council might have taken action upon one person signing the petition and assessed the whole cost against him upon his property; or that they might have proceeded with a petition signed by two or three. Undoubtedly, the parties might agree to such a thing and be bound by their agreement. But we think that it should appear very clearly they had agreed to that before the court would undertake to enforce a thing which would seem to be so unreasononable and inequitable.

We do not put that construction upon this petition. When the petitioners have asked that the cost and expense be assessed upon the property abutting upon said streets, as set forth above, we think that they meant, and that it is very clear that they meant the property bounding or abutting on Twelfth street, between Adams and Jackson, and on Union street between Jackson and Woodruff and that they agreed to pay only their fair proportion of the costs, taking into account all this property between Adams street and Woodruff avenue. For the reason that this assessment has not been made according to that plan. We feel compelled to set it aside and we do set it aside. But we believe a valid assessment may be made in pursuance of that petition. If the council will taka into account all of the property between those streets in such manner as only to assess upon these properties, the properties of these plaintiffs, their fair and equitable proportion; and' therefore we set this assessment aside, without prejudice to the rights of the council to proceed in pursuance of law and make a reassessment.

The costs in this case will be adjudged against the city.

Haynes and Wildman, JJ., concur.