Scully v. City of Cincinnati

If it be true that these ordinances and the contract with plaintiff’ to do this work are void, the case would be one of assumpsit, on which, if plaintiff’ could recover at all, he would stand upon a quantum meruit. Whether the city would be liable in such a case, we do not consider it necessary to decide. Can, then, the city pass such ordinances as appear in this case, contract to do the work as has been done, and make a valid assessment?

When these causes were before us at a former term of this court, the question presented on the pleadings was, whether the improvement of McMillan street, as well without as within the city limits, could be done by the city, and the cost thereof assessed upon the property abutting on that side of the street only within the city; and we held that this could not be done.

This cause now presents other and different questions.

This work was done under the act of February 21, 1866 (S. & S. 803), which recites: “That where it shall be deemed necessary by any municipal corporation to improve any street, alley, or public highway, or any part thereof, within the limits of such corporation, by' grading, *186paving, draining or other improvements, and, for the purpose of defraying the expense thereof, to assess and col-' lect a charge or tax on the owner or owners of any lots or lands, or on the lots or lands, by or through which such street, alley, or public highway, or the part thereof to be improved, shall pass, * * * * * * the said council may, as soon as practicable, by ordinance, levy and assess a tax to defray all expenses consequent on such improvement, on the owner or owners of lots or lands, or on the lot or land by or through which such street, alley, or public highway shall pass, according to the true intent and meaning of this section, either by the foot front of the lots or lands bounding and abutting thereon,” etc.

Now, the south half of McMillan street is “part of a street.” The law says, “ any part of a street;” and we see no sufficient reason to hold that this language is intended to embrace only a section of a whole street and is not broad enough to include the very work done in the case at bar. And the corporate authorities have the right to impose assessments upon the property within the limits of the city, subject only to such restrictions as are imposed by the legislature, to prevent an abuse of the exercise of such right. There is no evidence that there has been here any abuse of power in laying this assessment. It is strictly within the charter, as it is levied, in fact, but for the work done on part of the street and upon the property “ by which it passes.” And the assessment is uniform on the property within the corporate limits; and we do not feel authorized to inquire any farther as to what may have been done by any other corporation, with respect to another and totally different matter. There was no property outside the city limits abutting on this street, over which the city had jurisdiction, or upon which an assessment could be made under any circumstances.

But it is said a street is a unity; that it has sidewalks and gutters; and that these ordinances speak -of a street, as such. To this it may be replied that the only McMil*187Ian street known to the city was a street thirty feet wide; and the fact shown by the pleadings that another corporation had another McMillan street thirty feet wide, immediately adjoining, the two together making a sixty foot street with gutters and sidewalks, it may be presumed, on both sides of it, makes the unity spoken of, and affords a strong ground for upholding these proceedings. Besides, the acts of the parties show clearly what was meant. (Ridenour v. Saffin, 1 Handy, 476.) So that we are not bound to suppose that the ordinances expressly treat of a matter outside of the jurisdiction, and is, therefore, illegal and void.

Again, it is said that the ordinance to assess is a departure from, or is inconsistent with, the previous ordinances, because, they treat of a street, and the ordinance of assessment. treats of one side of it only, and therefore the assessment ordinance is irregular and void.

To this, it appears sufficient to answer that the assessment covers no more property than was ordered to be improved. In fact, they are - identical. No other objection is made to it, 'and it will be presumed, as the allegations stand, that the city council has acted in the spirit of equality and justice until the proof should show otherwise.

The demurrer to the answer will be overruled.

"We have been led to say thus much because it seemed necessary and desirable to- determine the liability of the city in this action, as all the facts in the case appear in the pleadings. But the demurrer reaches to the petition, and in looking into it we find it fatally faulty.

The cause will, therefore, be remanded to Special Term for further proceedings, with leave to the plaintiff* to file an amended petition against all other defendants.