153 N.E. 167 | Ohio Ct. App. | 1926
By an amended petition the plaintiff seeks to enjoin the treasurer of Athens county from collecting an assessment made on his two tracts of land in that county for the improvement of an intercounty highway. It is alleged that the improvement cost about $54,000 per mile; that the county commissioners tentatively assessed 10 per cent. of that expense upon the real estate lying within one mile of either side of the improved road; that thereafter the plaintiff filed his objection to said tentative assessment, setting forth three objections: (1) That the assessment is greater than the benefits accruing to the plaintiff's lands; (2) that the assessment should have been extended to all lands with 1 1/2 miles of either side of the highway; (3) that the assessment is confiscatory. He pleads that in support of his objection he appeared before the commissioners and produced evidence in support of his contention, but that the commissioners notwithstanding that fact confirmed the tentative assessment. He says that the treasurer is now threatening to collect the assessment, and that the confirmation of such assessment is "unlawful, unauthorized, and in contravention of the Constitution of the state of Ohio, for the reason that no special benefit or benefits whatever have accrued to plaintiff or his said premises by reason of said improvement of said highway in the manner aforesaid." He further pleads that because the property is located in a strictly agricultural and grazing community, five miles from Athens, and separated therefrom by a high hill which renders his property unavailable for residence or allotment purposes, and because *295 of the great volume of rapidly moving traffic on the improved highway, and the danger to life and property resulting therefrom, plaintiff's real estate is thereby rendered less valuable than before the improvement was made.
Issue was joined upon this amended petition, and trial had. The issue made is that the assessment levied violates some undesignated provision of the Constitution because, it is claimed, the assessment against plaintiff's land exceeds the benefit conferred by the improvement.
There is strong testimony in the record, consisting of the opinions of worthy citizens, indicating that the assessment of $973.16 levied against plaintiff's 106 acres is greater than the benefits that have accrued to him.
To ascertain the extent to which a court of equity may afford relief against an assessment claimed to violate some constitutional right seems to necessitate a review of the authorities bearing upon that question. That they in the main relate to municipal assessments does not affect the principles involved.
Under the first Constitution of this state, assessments were not referred to, but this method of making public improvements was then the common practice of the municipal corporations of this state. In the Constitution of 1851 assessments were recognized and referred to, but were neither defined, limited, nor regulated. Section 6, Article XIII, provided merely that the General Assembly should provide for restricting the municipal power of making assessments, indicating that as there were no constitutional restrictions, such as prevailed in *296 some states, there ought to be legislative restrictions imposed in this state by statute.
In Hill v. Higdon,
"But in the exercise of the power of assessment, legislative discretion in apportioning the burden according to benefits, is left as broad and unfettered as under the Constitution of 1802. The last of these sections contemplates a delegation of the power to municipal corporations, and imposes upon the Legislature the duty (as yet very imperfectly performed) of so restricting its exercise as to prevent abuse. A failure to perform this duty, may be of very serious import, but lays no foundation for judicial correction."
Whether required or not by the case he was considering, Judge Ranney thus expressed the opinion that there were no constitutional limitations upon the power to levy assessments. This was followed and approved in Reeves v. Treasurer of WoodCounty,
In Northern Indiana Rd. Co. v. Connelly,
"But it is said that assessments, as distinguished from general taxation, rest solely upon the idea of *297 equivalents, a compensation proportioned to the special benefits derived from the improvement, and that in the case at bar, the railroad company is not, and in the nature of things cannot be, in any degree, benefited by the improvement. It is quite true that the right to impose such special taxes is based upon a presumed equivalent; but it by no means follows that there must be in fact such full equivalent in every instance, or that its absence will render the assessment invalid. * * * The mode adopted by the council becomes the statutory equivalent for the benefits conferred, although in fact the burthen imposed may greatly preponderate. In such case, if no fraud intervene, and the assessment does not substantially exhaust the owner's interest in the land, his remedy would seem to be, to procure, bya timely appeal to the city authorities, a reduction of the special assessment and its imposition, in whole or in part, upon the public at large."
In Maloy v. City of Marietta,
Until 1879 it may be said to have been the *298
recognized rule that there was no constitutional limitation in this state on the power of municipal corporations to levy assessments, nor any limitations except such as the Legislature imposed by virtue of Section 6, Article XIII. No other provision of the Constitution was deemed available to one who felt that his property was being taken from him because the assessments thereon were in excess of the benefits conferred by such assessment. The attitude of our courts in this respect was identical with that of courts of New York and other states with similar constitutional provisions. In that year, however, was decided the case ofChamberlain v. City of Cleveland,
"After all the care that has been thus taken to restrict the powers of general taxation, and to cause the burdens created by it to rest uniformly and equally upon all, it would be astonishing to find that dangers incident to the assessment mode of taxation, which are very great, had been entirely overlooked in framing and adopting the constitution, and that the powers of this mode of taxation are subject to no limitations or restrictions except the discretion of the general assembly. If such a discretionary power is vested in the general assembly, it is very clear that it may be used to subvert Section 19 of the bill of rights, and private property will not be inviolate, but at the mercy of a discretion under which it may be taken from the owner without compensation, and be gratuitously given to the public." *299
And further the court quoted from Hammett v. Philadelphia,
The court thereby reached the conclusion that Section 19, Article I, of the Constitution, contemplated that the property owner should realize in benefits the equivalent of the amount paid by him in the way of assessments. But the court seemed to be further of the opinion that only in unusual cases could a judicial question arise as to the amount of benefits conferred upon the owner by the improvement. The court said:
"A majority of the court think that where the city council determines that the amount of the assessment does not exceed the value of the benefits specially conferred, its judgment in the premises, in the absence of fraud, is final and conclusive, unless modified by the council before the final confirmation."
Then came Parsons v. City of Columbus,
A new view began to take form after the Supreme Court of the United States in 1898 decided the case of Norwood v. Baker,
Following the Norwood case came Schroder v. Overman,
Then followed Cincinnati, Lebanon Northern Ry. Co. v. City ofCincinnati,
This doctrine was reaffirmed in City of Dayton v. Bauman,
"It will thus be seen that this court in the past has not consistently adhered to the same theory in its construction of Section 19, Article I, and Section 6, Article XIII, and their relation to each other; that up to the year 1900 it consistently held that the two sections were independent of each other and that the one was not a limitation upon the other; that in the year 1900, in the case of Railway Co. v. Cincinnati, supra, it for the first time adopted the construction that Section 19, Article I, was a limitation upon Section 6, Article XIII. The doctrine of that case was specifically approved and followed in 1902 in the case of Dayton v. Bauman, supra."
The court concludes by expressly overruling the principle announced in Railway Co. v. City of Cincinnati and Dayton v.Bauman, supra. Judge Robinson says in the opinion in substance that Section 19, Article I, is not a limitation upon either *303
Section 6, Article XIII, of the Constitution, upon the power of the General Assembly to enact assessing laws, and points out the injustices resulting from an attempt to so invoke Section 19 of Article I. He cites with approval Reeves v. Treasurer of WoodCounty,
"This unlimited power to tax, necessarily involves the right to designate the property upon which it is to be levied — in other words, to apportion the tax. And except in cases where the proceeding is merely colorable, and it is really and substantially an exercise of the right of eminent domain, the judicial tribunals cannot interfere with the legislative discretion, however onerous it may be."
We think that after the Otter opinion in 1922,
Such is now the rule in the Supreme Court of the United States. In Branson, Sheriff, v. Bush, Receiver,
In the instant case the assessment complained of was made under the provisions of Section 1214, General Code. Under that section as it then *305 read, the assessment district included all the land lying within one mile of the improvement. The amount specially assessed was 10 per cent. of the cost of the improvement, the remaining 90 per cent, being borne by the general public. The assessing district on each side of the road was divided into four zones, each a quarter of a mile in width, and the several zones were assessed in a diminishing proportion as they were severally distant from the improvement. The assessments within each zone were then apportioned among the several properties in such zone according to the tax valuation of the several properties. All the assessments were required by the section mentioned to be within 33 per cent. of the tax valuation of the lands. The instant assessment was in complete conformity to the section referred to. The statute itself furnishes a fair and reasonable method of assessment, and while, in the case at bar, where the plaintiff's lands seem to be poor and to lie in two ribbons along the improvement, bringing all of his property within the first zone, the assessment is high and burdensome, it is still within the limitations fixed by the statute.
The challenge made by the petition that the assessment is unconstitutional does not authorize this court to substitute its judgment as to the amount of benefits accruing to the land for the judgment of the commissioners acting under the statute referred to. While the evidence might be said to show clearly that the improvement does not benefit the land in question more than, nor as much as, a less expensive and different kind of improvement would have benefited it, we would *306
be bound to hold, if it were a judicial question, that the property has been benefited by the improvement, when comparison is made with the old turnpike as it was at the time of the new improvement, which is the only test we could apply. Now the extent of the benefits accruing to the plaintiff's land is uncertain. The benefits are not determinable by the use to which the plaintiff puts the land, nor even by any use to which a particular owner could devote it. In Louisville Nashville Rd.Co. v. Barber Asphalt Paving Co.,
"There is a look of logic when it is said that special assessments are founded on special benefits and that a law which makes it possible to assess beyond the amount of the special benefit attempts to rise above its source. But that mode of argument assumes an exactness in the premises which does not exist. The foundation of this familiar form of taxation is a question of theory. The amount of benefit which an improvement will confer upon particular land, indeed whether it is a benefit at all, is a matter of forecast and estimate. In its general aspects at least it is peculiarly a thing to be decided by those who make the law."
Further, at page 434 (
Of all the authorities examined by us, we find nowhere a better assembly of authority or a better analysis of the controlling principles than in Atlantic Coast Line Rd. Co. v. City ofGainesville,
Page and Jones on Taxation by Assessments points out, Section 549, that special assessments rest upon the theory of special benefits, and says (Section 553) that while there are some limits to legislative discretion in imposing them, these limits are not clearly established, and the question of benefits is not a judicial one "unless the court can plainly see that no benefit can exist and this absence of benefit is so clear as to admit of no dispute or controversy by evidence." *308
We are therefore bound to, and do, dismiss the petition of the plaintiff.
Petition dismissed.
SAYRE and MIDDLETON, JJ., concur.