Hunt v. Hunter

In this case, which is No. 1117 and Nos. 1118 and 1119, submitted with it, we have come to an opinion as to the law governing the case. We have not had time to go over all the papers in the ease to get at what the facts are, but shall leave them to counsel until later, in preparing the journal entry. I can, however, indicate in this one case — in which I have examined the papers — the theory upon which we have proceeded. In the case of The City of Toledo v. Cole, we have examined the papers. In that case there was an assessment made upon Mr. Cole’s lot on the —day of July, 1891, for the paving and improving of Lenk street, upon which it is situated, in a sum the amount of which I have not before me-; and, on May 15, 1893, there was a second assessment of $89.12 levied and assessed upon that lot for building a sidewalk, and in 1895 a third assessment, for paving and improving Wisconsin street, amounting to $32.30. The court of common pleas found the value of said lot to be $275 before the improvement of Wisconsin street and $300 after it was improved. It is claimed by the defendant that these assessments may be added together, and if they exceed twenty-five per cent, of the value of the lot they are illegal. The court of common pleas held that the Wisconsin'street assessment was illegal, and adjudged that the owner should not pay that; and, with that, we are in full accord; but the question is, whether the sidewalk assessment was illegal? The sidewalk assessment was made upon Uenk street, upon which there had been previously assessed a certain amount for paving tax. We think that, clearly, under the authorities, these were two separate improvements, and that there is no statute limiting the amount of an assessment, or percentage of an assessment, for two different improvements, such as in this case — the paving of a street and the building of a sidewalk adjoining the lot — that is, no limitation which will render either invaild because the sum of the two shall exceed 25 per cent. The limitation provided by the statute, sections 2271 and 2283, is that no assessment <br any improvement shall exceed twenty-five per cent., and that — as provided in section 2283 — if the improvements are completed on intersecting streets, within the period of five years, so that the two joined together shall exceed twenty-five per cent., they shall be illegal beyond that limit. »But here it will be noticed that the first two assessments were upon the same street, and, being upon the same street, they cannot be added together; and that, so far as the owner of the property is concerned, leaves only the question whether the sidewalk assessment exceeded twenty-five per cent, and whether the limitation found in section 2271 applies at all to the sidewalk. As a matter of fact, the $89.12 exceeds 25 per cent, of the value of the lot as found by the court of common pleas — $275—and certainly that value must be taken since it was the value of the lot at the time the. sidewalk was built. One-fourth of that would be $68.75, and that amount can only be levied under the limitation of section 2271. It is said by counsel that we should not hold this because it has been determined by this court, in a case of the same title, in an opinion rendered by Judge Scribner in a different way, reported in 5 C. D.90. Upon careful reading, however, of that case, it will be found that this question was not decided. It was hot necessary to be decided in that case. There are some remarks in that opinion which would seem to imply that the court was proceeding upon the line that this 25 per cent, did not apply to sidewalk assessments. The court held that. *497under tbe facts before it at that time, it might fairly he treated as a separate improvement made at another time than that of the street paving and could not be added to the street paving to ascertain whether it exceeded the 25 per cent., but the sidewalk tax alone did not exceed 25 per cent, of the value of the lot in that particular property, so that it was held to be legal upon that property. That being the only question decided there we are not at all embarrassed by that decision. That was not a corner lot case. Under section 2327 it is provided that all of these sections in this chapter relating to assessments, shall be strictly construed in favor of the owner of the property to be affected by the assessment, and a careful reading of all the sections in this chapter will show that there is a connection between all of them. The subject of sidewalks is mentioned in a section of the statutes much earlier than the subdivision which treats of sidewalk assessments. That subject is treated in this same chapter, commencing with section 2328 and following, but at the same time sidewalks are mentioned in earlier sections, and it is clear that the limitation in sections 2271 and 2283 are intended to apply to all of these assessments. If there be two improvements upon the same street, which are clearly separable, then the limitation contained in section 2283 does not apply. But-the question only is left, whether either of these assessments, alone, exceeded twenty-five per cent.? But the lot is a corner lot, and the intersecting street has been improved, so that there are two street improvements which (not as in the Cole ease, but I think one of the others) preceded in order of time the building of the sidewalk, and then the street assessment and the sidewalk assessment may be added together to determine whether the whole exceeds 25 per cent., and in that case — under section 2283 — if'the sidewalk assessment, together with the assessment upon the intersecting street, exceeds 25 per cent., it would be illegal, but not so when the sidewalk and the street assessments are upon the same streets. In the Cole case, they were upon the same street, except that after the sidewalk was improved then the improvement was made upon Wisconsin street. But the sidewalk assessment, at the time it was made, was legal to extent of 25 per cent, of the valuation, and it was not rendered illegal by the making of the other assessment.

I think from these remarks counsel can prepare the entries in these eases. In the Cole case I have indicated exactly what the entry should be; in the others I have not, because I have not had time to go over the papers and ascertain the order in which these assessments were made and whether in every case they were intersecting street improvements. We hold that, standing alone, the sidewalk assessments must be limited to 25 per cent., and we are clearly satisfied that that is correct.