Lewis v. Laylin
Lewis v. Laylin
Opinion of the Court
That the commissioners had jurisdiction of the proceedings prosecuted before them to establish the improvement;, is shown by the finding of the court, provided they had authority to improve that part of the highway which extended into the corporate limits of the city of Norwalk.
The finding of the circuit court in respect to both law and fact is full and complete, and presents the questions in contention between the parties here with unusual clearness. To some of these findings the plaintiffs below excepted, and counsel in argument refer to them; but, as no cross-petition in error has been filed in the case, they are not before us for consideration. Of the findings of the circuit court, to which defendants below excepted, it will only be necessary to consider those which relate to the third conclusion of law, and to the last clause of the finding of fact, as, in the view taken by this court, they are decisive of the case.
The third conclusion of law is, “that the order made by said commissioners of Sept. 20, 1884, was invalid for the reasons:
“ 1st. Because, in said order for said improvement, the commissioners did not state or determine the lots and lands to be assessed for the costs of said improvement.
if3d. Because the said commissioners had no power or authority to order the improvement of a portion of one of the streets of the city of Norwalk.”
In determining the sufficiency of the records of inferior tribunals and public boards, to express their purposes or to preserve a memorial of their transactions respecting matters within their jurisdiction, technical precision should not be required; on the contrary, they should be liberally construed. They are not usually drawn by persons possessed of professional knowledge or skill in such matters; the law does not contemplate that such tribunals or boards shall be constantly attended by persons having such knowledge or skill, but, rather, that their duties will be performed, at least, generally, without such assistance. To subject them to the test of technical precision, would, in most instances, at least, defeat the object sought to be attained by the legislature in creating inferior tribunals and public boards; and, therefore, however informal their records may be, if enough appears to show with reasonable certainty that the requirements of the law have been substantially complied with, their pi’oeeedings should, upon grounds of public policy, if for no other reason, be sustained. Harding v. Trustees, 3 Ohio, 227; Humiston et al. v. Anderson’s Adm’r, 15 Ohio, 557 ; Barto v. Abbe, 16 Ohio, 408; McClelland v. Miller, 28 Ohio St. 488, 498; Lima v. McBride, 34 Ohio St. 338. Nor should their proceedings be attacked in detail, and an entry or an order separated from the balance of the record, and if found incomplete when considered alone, the proceedings declared erroneous; instead, the whole is to be construed together, and, if from the entire record it appears that all the statutory steps have been substantially taken, the proceedings should be upheld. These principles we adopt and-apply in construing the record of the county commissioners in the case now under consideration.
“ Whereupon, the consideration of the report of the viewers, in the matter of the Hawes two-mile assessment pike, was resumed; and the board being satisfied that more than a majority of the resident land owners of the county, whose lands are reported benefited, and ought to be assessed, had signed the petition, on motion of Mr. Simmons, it was ordered that said improvement be made in accordance with the report of the viewers and surveyor.”
It is true this order does not, in terms, name the lots or lands to be assessed to pay the cost of the improvement; but, when the nature of the proceeding before the commissioners is considered; that the scheme, of the improvement contemplated that its cost should be assessed,exclusively upon the lots and lands to be benefited thereby; that one of the main objects to be accomplished by appointing the viewers and surveyor, and the duty enioined upon them by the statute under which they acted, was to ascertain and report, for the information of the commissioners, and as a basis for their order directing the improvement to be made, the lots and lands to be benefited thereby, and which ought to be assessed to pay the cost thereof; that this duty had been performed, and their report in respect thereof was then being considered by the commissioners, and in fact, contained a statement of the lots and lands that in their opinion should be assessed, an order made by that board, directing the “ improvement to be made in ac-. cordance with the report of the viewers and surveyor,” must be regarded as adopting the language and recommendations of the report, as fully and completely as if it had been formally copied into the order. We hold, therefore, that this order, of September 20, 1885, did state and determine the lots and lands to be assessed for the cost of the improvement.
The second reason given in the special finding, for holding as matter of law, that the order of September 20, 1884, was invalid, is, “ Because the report of the apportioning committee does not find or determine the proper proportion of the costs
In this connection it becomes necessary to refer to the eighth finding of fact. This finding shows that the order of the commissioners, appointing the apportioning committee, was as follows:
“ Ordered that Captain C. Woodruff, Homer Clary and Charles Whitney be appointed the apportioning committee, under section 4842, Revised Statutes, to apportion the expense of said, improvement on the property benefited, and that said committee meet on Monday, September 29,1884, andproceed with the duties of their appointment.” This referred directly to the statute under which the apportioning was to be done, and made certain the duties which the commissioners contemplated and intended the committee to perform. Notice, pursuant to this order, was duly given to the apportioning committee, directing them, among other things, as follows: “ You will, therefore, proceed, forthwith, upon actual view of the premises, to make out said apportionment, according to the benefit to be derived therefrom, and report the same to the county auditor.” And there was attached to this notice a copy of the list of lots and lands, which the viewers and surveyor had reported as benefited by the improvement and ought to be assessed to pay the costs thereof. While neither the order of the commissioners now under consideration, nor the notice to the apportioning committee, directly refers to this list of the lots and lands to be assessed, yet, from the nature of the proceedings, the entries, orders and reports before referred to and set forth in this opinion, and the reference made to the statute, (sec. 4842, Rev. Stats.) by the order itself, it is entirely clear that the commissioners had in view the lots and lands named in the list when they made the order now under review; and it is equally clear, from the language of the order to the apportioning committee, and the duties devolved upon them under it, that this list of lots and lands, together with the order, constituted but one document.
When it is shown that the list of lots and lands that the viewers and surveyor reported as benefited by the improvement, and ought to be assessed to pay the costs thereof, was properly a part of the notice given to the apportioning committee, their duties thereunder clearly appear. They were to apportion the cost of the improvement to the lots and lands, named in the list, according to the benefits to be derived therefrom, and report the same to the county auditor.' They proceeded under the notice, made an apportionment of the costs to the lots and lands named in the list, and reported as follows, to-wit:
“We, the undersigned committee, appointed by your honorable board to apportion the estimated expense of the improvement of a two-mile assessment pike road in Norwalk Township, as petitioned for by O. M. Hawes and others, upon actual view of the premises, would respectfully report the following list of lots and lands, with the respective sums assessed on each, as follows: ”
The third reason assigned, in support of the third conclusion of law, presents the question of the power of the county commissioners to improve a state or county road when it is also a street of a municipal corporation ; and to the discussion of this interesting and important question counsel have devoted a considerable part of their very able briefs; and, counsel for defendants in error, have, with great force, pressed upon the attention of the court the mischief that might arise from a conflict of jurisdiction, if it should be held that the county commissioners have the power contended for. This argument is not without force, and in a doubtful case might determine the construction to be placed upon the provisions of a statute.
That a state or county road is not extinguished by becoming a street of a municipal corporation is clear. It retains its character of a state or county road, even as to such portions of it as may chance to fall within the limits of a municipal corpora
If so apparent a proposition requires support from authority, ■enough will be found in the case of Bisher v. Richards, 9 Ohio St. 485, where it was held, that the laying out of a state road ■ overa county road did not extinguish the latter," but that both might co-exist. If that is so, upon the same principle, a state ■or county road would continue to exist after its adoption by a .municipal corporation as a street.
It has also been held in this state, that under a statute giving the commissioners general power to lay out and establish county roads, they were authorized to lay out and establish a county road within or through an incorporated town or city. Wells v. McLaughlin, 17 Ohio, 99. Also, one “whose termini are wholly within the limits of an incorporated town or city.” Butman v. Fowler et al., 17 Ohio, 101. These cases establish the doctrine, that territory, within a municipal corporation, is not exempt from the operation of general laws giving authority to county commissioners respecting public highways.
The statute under which the commissioners were acting, in the case under consideration, is a general one, and reads as follows:
“Section 4829. The county commissioners of any county shall have power, as hereinafter provided, to lay out and construct any new county road, or improve any state, county, or township road, or any part thereof, or any free turnpike road, or any part thereof not completed, by straightening or altering the same, and by grading, paving, graveling, planking, or macadamizing the same, and by draining the same in any direction required to make the most convenient and sufficient ■ outlet; and for such purpose they may, upon further petition, when by them deemed expedient, vacate any state, county, or -township road, or any part thereof, or any free turnpike road,
The power conferred by this section is as full, ample and general, as that conferred by the statutes under which the commissioners were acting in the cases of Wells v. McLaughlin and Butman v. Fowler, supra, where it was held that the- power of the county commissioners did extend to and authorize them to lay out and establish public roads within incorporated towns and cities. Therefore, unless this power is limited by some other statutory provisions, the commissioners had authority, under the statute above recited, to make the improvement in question. This construction is strengthened by the proviso added in 1884, (81 Ohio Laws, 56) to sec. 4831 of the same act, which reads as follows:
“ Provided, that in locating such improvement within the territorial limits of any incorporated village or town, the engineer and viewers shall be confined to the platted streets of such village or town.”
And by section 4850, as amended in 1882 (77 Ohio Laws 50):
“ When any road to be improved under and by virtue o, this chapter begins or terminates in a city or village, the Corporate authorities thereof may, upon the recommendation of the county commissioners, if they deem the same expedient, agree to pay in the bonds of such city or village, in the manner and proportions described in section 4846, in addition to any amount that may be assessed upon the real property within such corporation by virtue of the provisions of this chapter, an amount not exceeding one-fifth of the entire cost of the road; but the entire tax to be imposed for road purposes, by virtue of this section, shall not in any year exceed five mills on the dollar of the taxable property in the corporation.”
This section and proviso clearly show the construction intended by the legislature. In addition to this they adopted the
In the sections of the municipal code, which bear directly on the subject of street improvement, no words excluding this power of the county commissioners are found, nor are there any direct words of exclusion in sec. 2640, Rev. Stats. That section reads as follows:
“ The council shall have the care, supervision and control of all public highways, streets, avenues, alleys sidewalks, public grounds and bridges within the corporation, and shall cause the same to be kept open and in repair*, and free from nuisance.”
But it is contended that the general power conferred on municipal corporations by this section, and the special power to improve streets given by other sections of the municipal code, are incompatible with the existence of authority in the county commissioners to improve that portion of a state or county road which may lie within the corporate limits If this contention is true it becomes a matter for the most careful consideration to determine which authority must yield to the other; and in that view it might be important to cast up the advantages on the one hand and the evils on the other, incident to such construction, and ascertain upon which side the balance stood; upon the theory that the legislature must be taken to have intended to promote the public welfare, and therefore intended that to be the law which, would best accomplish it. But is there any such incompatibility? That there” is some danger of a conflict of authority between the county commissioners and the municipal council, where both have power to improve the same highway, can not be denied. That is a danger that always exists where two independent officers or bodies have a concurrent authority over the same
It is true that sec. 2640, in very general terms gives to municipal councils the “care, supervision and control of all public highways, * * * within the corporation.” The power conferred by this section is full and ample ; but it contains no words directly excluding that conferred by the statute upon county commissioners. If it has that effect, it amounts to a repeal of the latter statute by implication. Repeals of this kind are not favored.
The duty of the court is to consider all the statutes upon the subject together, and, if possible, uphold all of them, and give due force and operation to every part of each. We discover no difficulty in doing this in the case before us. The legislature, by the provisions of sec. 2640, Rev. Stats., bestowed a very general control over the highways within municipal corporations, but, at the same time, they have preserved to the county commissioners a power to improve those public highways which are a part of the general road system of the county, though they may happen to lie partly within the limits of the municipality.
As we hold the proceedings before the commissioners to be in substantial compliance with the statutes under which they were had, and that they had power to improve that portion of the state road which fell within the city limits, it follows that the assessments were all valid, and any discussion of the doctrine of estoppel becomes unnecessary; and we do not care to add anything to the thorough statement of the principles of the doctrine to be found in Tone v. Columbus, 39 Ohio St. 281.
The questions considered in this opinion are presented by the record, and were of sufficient importance to require a decision directly upon them, though the case might have been decided upon the ground that, as the parties had a remedy at law, they could not invoke the aid of equity.
The principle decided in Haff v. Fuller, supra, applies equally as well to proceedings before county commissioners under the two-mile assessment pike laws,as to proceedings before township trustees under the ditch laws. In that case the action was -directly to enjoin the construction of the improvement (a ditch), while in the case before us it was to enjoin the collection of an assessment to pay its costs, which latter action is authorized by chapter 13 of the Code of Civil Procedure; but, in either case, it was the jurisdiction of the board and the regularity of the proceeding had before it, that were challenged; and the right of the party to do this in equity, cannot depend upon his lying by until the improvement is substantially completed, and then seeking to accomplish by its aid what he could have done by a proceeding in error. The rule is laid down in 43 Ohio St. 497, as follows : “ As a result of the rule that courts of equity do not entertain jurisdiction for the enforcement of rights or the prevention of wrongs, when the legal tribunals are capable of affording redress, it is always a sufficient objection to the granting of an injunction, that the party aggrieved has a full and adequate remedy at law. In' the application of the rule it is accordingly held, that courts of equity will not sit as courts of error, to revise and correct proceedings at law or grant injunctions against judgments, because of errors in the proceedings, when proper relief can be had in the ordinary
Judgment reversed and the petition of the plaintiff dismissed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.