Village of Leipsic v. Wagner
Village of Leipsic v. Wagner
Opinion of the Court
Jacob C. Wagner, a citizén and taxpayer of the village of Leipsic, brought suit against the village, seeking to enjoin the village from constructing an ornamental street-lighting system, and the levy of assessments against the plaintiff’s abutting property for its payment. Eighty per cent, of the cost of installation was to be paid by the abutting property owners, according to their foot frontage, and the balance collected by levy upon the property in the village.
On May 31, 1921, the council, three-fourths of the members concurring, proceeding under Section 3812,
The common pleas court refused the relief asked for, but upon appeal to the court of appeals that court found in favor of the plaintiff and enjoined the collection of any assessments against his property for the proposed construction and maintenance of the ornamental lighting system. Error was thereupon prosecuted to this court.
Counsel for the village admit that procedure to install the ornamental system of lighting was taken under favor of Section 3812, General Code. The first question that arises in the case is whether the municipality had authority to install this ornamental lighting system under that section. In an opinion, one of the members of the court of appeals expressed the view that the municipality had no such authority, for the reason that the section confined the-powers of the council to an ordinary and not to a lux-. urious lighting system. Section 3812, General Code, is broad and comprehensive. It authorizes municipal corporations to levy and collect special assessments and to “assess upon the abutting, adjacent and contiguous or other specially benefited lots” any part of the cost of lighting. This cost may be paid by three methods, by percentage of tax value; in
In reversing the common pleas court the court of appeals held that the later sections adopted by the legislature, to-wit, Section 3842-1 et seq., General Code, repealed Section 3812 by implication, in so far as the latter may have authorized the installment of ornamental or boulevard lighting. Section 3842-1, General Code, provides that “When a petition signed by three-fourths in interest of the owners of property abutting upon any street * * * is presented to the council * * * for the improvement thereof by an improved system of lighting commonly known as boulevard or white way lighting, to be paid for in whole or in part by special assess
The rule covering repeals by implication has been well settled in Arzonico v. Board of Education of West New York, 75 N. J. L., 21: “Where a new remedy is authorized by statute, without an express repeal of a former one relating to the same subject-
In Dodge v. Gridley, 10 Ohio, 174, the syllabus states: “Two statutes in pari materia shall stand together, and both have effect if possible, for the law does not favor repeals by implication.” Judges Brinkerhoff and McIlvaine, respectively, in Buckingham v. Steubenville & Indiana Rd. Co., 10 Ohio St., 25, and State, ex rel. Olds, v. Commissioners, 20 Ohio St., 421, adhered to the rule announced. In the latter case McIlvaine, J., speaking of the rules of construction, said at page 424: “That the doctrine of statutory repeals by implication is not favored, and that such repeals will not be declared unless they are necessarily implied. And that statutes in pari materia should be so construed as to give effect to all their provisions, and if they can be construed so as to stand well together, there is no repeal by implication.”
The judgment of the court of appeals is reversed and that of the common pleas court affirmed.
Judgment reversed.
Reference
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