# Appendix — Hetrick v. Village of Lindsey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1924
- **Citation:** 265 U.S. 384

## Text

15
APPENDIX.
CONSTITUTION OF THE UNITED STATES.

ARTICLE XIV.
Section L

All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal pro-
tection of the laws.

REVISED STATUTES OF OHIO.

§ 3812. Special assessments, how made.—LEacli
municipal corporation shall have special power to levy
and collect special assessments, to be exercised in the
manner provided by law. The council of any municipal
corporation may assess upon the abutting, adjacent and
contiguous or other specially benefited lots or lands in the
corporation, any part of the entire cost and expense con-
nected with the improvement of any street, alley, dock,
wharf, pier, publie road, or place by grading, draining,
curbing, paving, repaving, repairing, constructing side-
walks, piers, wharves, docks, retaining walls, sewers,
drains, watercourses, water mains or laying of water
pipe and any part of the cost of lighting, sprinkling,
sweeping, cleaning or planting shade trees thereupon, and
any part of the cost and expense connected with or made
for changing the channel of, or narrowing, widening,
dredging, deepening or improving any stream, or water-

BESSA ERIE NARRATE GU SRE Sa al

Sree az ise a 053

16

course, and for constructing or improving any levee or
levees, or boulevards thereon, or along or about the
same, together with any retaining wall, or riprap pro-
tection, bulkhead, culverts, approaches, flood gates, or
water ways, or drains incidental thereto, or making any
other improvement of any river front or lake front
(whether such river front or lake front be privately or
publicly owned), which the council may declare conducive
to the public health, convenience or welfare, by any of
the following methods:

First: By a percentage of the tax value of the
property assessed.

Second: In proportion to the benefits which may
result from the improvement, or

Third: By the foot front of the property bounding
and abutting upon the improvement. (107 v. 629; 101 v.
134; 96 v. 26, §9; 97 v. 98, §50.)

§ 3814. Resolution of necessity— When it is deemed
necessary by municipality to make a publie improve-
ment to be paid for in whole or in part by ‘special assess-
ments, council shall declare the necessity thereof by reso-
lution, three-fourths of the members elected thereto con-
curring, except as otherwise herein provided. Such reso-
lution shall be published as other resolutions, but shall
take effect upon its first publication. (97 v. 121, $51.)

§ 3815. Determination of nature of improvement;
method of assessment and payment.—Such resolution
shall determine the general nature of the improvement,
what shall be the grade of the street, alley, or other pub-
lic place to be improved, the grade or elevation of the
curbs, and shall approve the plans, specifications, esti-
mates and profiles for the proposed improvement. In
such resolution council shall also determine the method
of the assessment, the mode of payment, and whether or

kev

17

not bonds shall be issued in anticipation of the collection
thereof. Assessments for any improvement may be pay-
able in one to twenty installments at such time as council
prescribes. (107 v. 151; 97 v. 121, $51.)

§ 3816. Plans, specifications, estimates and profiles
to be prepared and filed—At the time of the passage of
such resolution, council shall have on file in the office of
the director of public service in cities, and the clerk in
villages, plans, specifications, estimates and profiles of
the proposed improvement, showing the proposed grade
of the street and improvement after completion, with ref-
erence to the property abutting thereon, which plans,
specifications, estimates and profiles shall be open to the
inspection of all persons interested. (97 v. 121, $51.)

§ 3817. Bonds and interest thereon.—When bonds
are issued in anticipation of the collection of the assess-
ment, the interest thereon shall be treated as part of the
cost of the improvement for which assessment may be
made. If such assessment or any installment thereof is
not paid when due, it shall bear interest until the pay-
ment thereof at the same rate as the bonds issued in
anticipation of the collection thereof, and the county
auditor shall annually place upon the tax duplicate the
penalty and interest as therein provided. (97 v. 121,
§51.)

§ 3818. Notice, how served.—A notice of the passage
of such resolution shall be served by the clerk of coun-
cil, or anassistant, upon the owner of each piece of prop-
erty to be assessed, in the manner provided by law for
the service of summons in civil actions. If any such own-
ers or persons are not residents of the county, or if it
appears by the return in any case of the notice, that
such owner cannot be found, the notice shall be published
at least twice in a newspaper of general circulation with-

18

in the corporation. Whether by service or publication,
such notice shall be completed at least twenty days bhe-
fore the improvement is made or the assessment levied,
and the return of the officer or person serving the notice,
or a certified copy of the return shall be prima facie evi-

dence of the service of the notice as herein required.
(97 v. 122, $52.)

§ 3819. Limitation of assessments.—The council
shall limit all assessments to the special benefits con-
ferred upon the property assessed, and in no case shall
there be levied upon any lot or parcel or land in the cor-
poration any assessment or assessments for any or all
purposes, within a period of five years, to exceed thirty-
three and one-third per cent. of the actual value thereof
after improvement is made. Assessments levied for the
construction of main sewers shall not exceed the sum
that in the opinion of council would be required to con-
struct an ordinary street sewer or drain of sufficient
capacity to drain or sewer the lots or lands to be assessed
for such improvement, nor shall any lots or lands be as-
sessed that do not need local drainage or which are pro-
vided therewith. (97 v. 126, §53.)

§ 3820. Municipality to pay portion of cost of im-
provement.—The corporation shall pay such part of the
cost and expense of improvements for which special as-
sessments are levied as council deems just, which part
shall be not less than one fiftieth of all such cost and ex-
pense, and in addition thereto, the corporation shall pay
the cost of intersections. (97 v. 126, §53.)

§ 3825. Ordinance for improvement, what to con-
tain.—If the council decides to proceed with the improve-
ment, an ordinance for the purpose shall be passed. Such
ordinance shall set forth specifically the lots and lands

19

| to be assessed for the improvement, shall contain a state-
ment of the general nature of the improvement, the char-
acter of the materials which may be bid upon therefor,
' the mode of payment therefor, a reference to the resolu-
tion therefore passed for such improvement with date
of its passage, and a statement of the intention of council
to proceed therewith in accordance with such resolution
and in accordance with the plans, specifications, esti-
mates and profiles provided for such improvement. (97
v. 122, $55.)

§3834. When certain special assessments deemed
valid and binding—When special assessments are made
upon property for the construction of an improvement,
and several kinds of material have been named in the
ordinance, or ordinances, providing therefor, and on
which bids have been received for the construction of
such improvements with any and all of such materials,
such assessments shall be valid and binding assessments
upon the property so assessed. In the construction of
sewers, excepting main or district sewers, notice of the |
passage of the resolution therefor shall be made in the |
manner hereinbefore provided. (87 v. 123, §60.)

§3835. Council not to proceed with improvement
without concurrence of three-fourths; exception.—No
public improvement, the cost or part of cost of which is
to be specially assessed on the owners of property, shall
be made without the concurrence of three-fourths of the
members elected to council, unless the owners of a ma-
jority of the foot frontage to be assessed, petition in
writing therefor, in which event the council, a majority
of the members elected thereto concurring, may proceed
with the improvement in the manner herein provided.

(96 v. 42, $61.)

Bahar eyo 48 “ .
. 1 TE SEIS SHES ING EOE aa
ee NENA a

IN THE

Supreme Court of the United States
No. 29,425.

Term No. 231.
October Term, 1923.

Wes.ey HETRICcK,
Plaintiff in Error.

vs.

THE VILLAGE OF LINDSEY OHIO, ET. AL.
’ ’ ’
Defendants in Error.

Error to the Supreme Court of the State of Ohio.

BRIEF ON BEHALF OF DEFENDANT IN ERROR,
THE VILLAGE OF LINDSEY, OHIO.

W. J. Mean, Fremont, Ohio,
. Attorney for Defendant in Error.

INDEX.

Page
Statement of Case..........--- eee eee eee ereeees 1
RPMOMOE cei cea tee cle scneescaessccaesaderes 6
SES eee a rat ee eee eee PEPE ee ee ie. 7
Owner’s Right to a Hearing.......--..---.+++++-+: 9
Limitations Provided.............-+ee scene eeeees 12
Not a Taking of Property.........-.----++++eeeees 13
CASES CITED
Adler vs. Whitbeck, 44 O. S. 539, 571........------- 12
Ballard vs. Hunter, 204 U. S. 242, 255; 51 L. Ed. 462,
Ae ee eee ee A Py peer ny Lek € 12
Cincinnati vs. Sherike, 47 O. S. 217..........-..-+5: 8
City of Canton vs. Wagner, 8S = ears. 8
City of Dayton vs. Baumann, 66 O. S. 379, 383. ...... 13
Conservancy District vs. Ryan, 104 i Spee 13
County Commissioners vs. Gates, ae. eB,» 13
Davidson vs. Board of Administrators, 96 U. S. 97,
Book 24, page G16............- cece cece teen eee 11
Ernst vs. Kunkle, 5 O. S. 520, 524.............-.---: 13
French vs. Barber Asphalt Paving Co., 181 U.S. 324;
TE 2. Ge rea ona Err ear were ray 9
Green vs. Cincinnati, 4 O. C. D. 573, 574. ........--- 9-10
Griswold vs. Pelton, Treas., 34 O. S. 482.........--. 11
Hill vs. Higdon, 5 O. S. 248..........2 220222 e ee 13
Hodge vs. Muscatine County, et. al., 196 U.S. 275, 281,
989: 49 L. Ed. 477, 481, SR ae edie oe 12
Joyce vs. Barron, Treas., 67 O. S. 264..........-. 8-9-10
King vs. Portland, 184 U. 8. 61, 69, 70; 46 L. Ed. 431,
MR at nd teas wa Rad Kore Ka Meee eA 12
MeMillin vs. Anderson, 96 “ 5. 37, Book 335........ 11
Meyer vs. Beck, et. al., 87 0.8 Ps Se kG Fens eo 6
Moore vs. Given, 39 0. S. 661 = ITNT cage, oa Som Ete 8
Musser vs. Adair, 55 O. S. 466, 474..............4-. 12

Paulson vs. City of Portland, 149 U. S. 37, Book 37
WN MEE ia 5 dna sa va an os 2 as hac eee Renato ee 9-11

Inpex—Conr’p.

Page

Railroad Company vs. Connelly, 10 0. S. 160........ 13

Reeves vs. Treasurer, 8 O. S. 333................... 13
Security Trust Co. vs. City of Lexington, 203 U. S. 324

A ON, hcg a kee 13

Schroeder vs. Overman, Clerk, 61 0.S.1............ 1
"wi vs. Merchant, 125 U. S. 345, book 31, page

fakmuwan one RUS, Se ie eal

State, ex. rel. vs. Sockman, 84 U. S. 447 ............ 6
State, ex. rel., vs. Union Central Life Insurance Co.,

vp ode Moe eon ET Oe ea 6
Walsh vs. Barron, Treas., 61 0.8. 15...............
Walston vs. Nevin, et. al., 128 U. S. 578, book 32,

a ao inh wis Sida Ee KU eos Ooo haba ees ok ose i, 11

Walsh, et. al. vs. Sims, Treas., 65 0. S. 211......... 11

_

-™

IN THE

Supreme Court of the United States
No. 29,425.

Term No. 231.
October Term, 1923.

Westey Herrick,
Plaintiff in Error.

vs.

Tue Vitiace or Lrnpsgy, OHIO, ET. AL.,
Defendants in Error.

BRIEF AND ARGUMENT FOR DEFENDANTS IN
ERROR.

STATEMENT OF THE CASE.

Plaintiff in error was the plaintiff in the action
brought in the Court of Common Pleas of Sandusky
County, Ohio, on June 8th, 1921, to enjoin the collection
of the special assessments assessed by the Council of
the Village of Lindsey, Ohio, against the property of

—— ———— a

plaintiff, to-wit, $199.65 against Lot No. 175, and $840.95
against Lot. No. 176 in said village, for the improvement
of Railroad Street in said village, plaintiff claiming dif-
ferent irregularities and also defects in the law under
which said improvement and assessments were made.
(Record pages 6-7 for petition).

To this petition said village answered denying all
irregularities and defects, and setting forth plaintiff's
knowledge of and participation in the work of said im-
provement. (Record pages 8-9).

In the hearing of said case in said court the only
grounds claimed by plaintiff against the validity of said
assessment were,

1. That said assessment exceeded the benefits to
said lots or either of them,

2. That said assessment was in excess of the limit
allowed by law to be levied upon property for local im-
provement, and

3. That the provisions of the General Code of
Ohio are unconstitutional and void for the reason that
they do not provide for notice to be given to the owner
of property to be assessed and an opportunity to be
heard before the tax is levied, and are therefore repug.
nant to and in conflict with Article 1, Section 16, and
Article 1, Section 19 of the Constitution of the State of
Ohio, and for the same reason in conflict with and re-
pugnant to Section 1 of the Fourteenth Amendment te
the Consttiution of the United States, in that they per
mit the taking of property without due process of law

In the hearing of said case a large amount of evi-
dence was heard by said Common Pleas Court especially
on the questions of benefits and values, and on Jan. 26th.
1922, said court sustained said assessment in its entirety
and dismissed plaintiffs petition. (Record page 10).

of

P

Plaintiff then appealed the case to the Court of Ap-
peals of said county, and the case was fully heard by
that court, a large amount of evidence being presented
at this hearing, which court on May 9th, 1922, found
the value of said lots after the completion of the im-
provement to be $2,600.00 and that they were especially
benefited to the extent of one-third of this value, and re-
duced said assessment from $1,040.60 on both lots to
$866.67, and decreed that the amount of $866.67 was
legally assessed against said property, and held against
the claim of plaintiff that the provisions of the Genera]
Code of Ohio relating to special assessments for street
improvements are unconstitutional. (Record pages 2-3).

Plaintiff's motion for a new trial was overruled,
(Record page 3), and on plaintiff’s request a finding of
facts was made by said court (Record pages 3-4-5), and
filed July 10th, 1922.

Said improvement is a brick pavement upon a con-
crete foundation and is 1,082 feet in length.

At and before the commencement of the proceedings
to improve said street said lots were platted lots. (Fact
11).

Said lots adjoin, each abuts said improvement, and
a saw mill property is located upon both said lots and a
saw mill business transacted thereon. (Fact 12).

The assessment was made by the foot front of the
property bounding and abutting upon the improvement,
and assessments were made of $199.65 against Lot 175
and $840.95 against Lot 176.

Notice of the passage of the resolution of necessity
for the improvement was served by the clerk in writing
on the plaintiff personally on May 10th, 1920, which, with
reference to the other proceedings, was at a proper time.
(Faet 4).

4

Plaintiff was, in fact, served with a complete copy
of the resolution.

Plaintiff in error had full knowledge of the work
as it progressed and made no objections thereto. (Fact
18).

Plaintiff with his counsel appeared before and con-
sulted with the Council as to the manner of the construe-
tien of the improvement and thereby caused it to be con-
structed in front of his property in the manner desired
by him. (Fact 20).

The Council acted in good faith. (Fact 24).

The Council found the several lots to be especially
benefited to the extent of the levy made against them.
(Fact 15).

Plaintiff filed no claim for damages. (Fact 16).

Plaintiff never requested a hearing before the Coun.
cil in said matter. (Fact 17).

All meetings of the Council were open and held at
the usual meeting place. (Fact 23).

Said improvement was completed about December
‘Ist, 1920. (Fact 19).

“All resolutions and ordinances required by the
statute were passed by the Council and publications and
service of the same was made and all notices were given
and all things required by the statutes to be done were
properly done by the Council and officers of said village
and all proceedings relative to said improvements were
regular and in accordance with the statutes, if the mail-
ing of the notice of the assessment to plaintiff was in ac-
cordance with the statutes, and this court finds that such
mailing was in accordance with the statute.’’ (Fact 13).

Other findings of fact, 24 in all, were made by the
court.

To said judgment of said Court of Appeals said
plaintiff prosecuted error and filed his petition in error

5

in the Supreme Court of Ohio, as of right, on the 17th
day of July, 1922. (Record page 18).

Petition in error in the Supreme Court of Ohio ap-
pears (Record page 1).

On October 23rd, 1922, defendants in error filed in
the Supreme Court of Ohio, their motion to dismiss said
petition in error, on the ground that same was filed in
said court without leave first granted, plaintiff in error
claiming that the case involves a question under the
Constitution of the United States, in that the statutes
of the State of Ohio relating to special assessments for
street improvements are unconstitutional in that they
are contrary to the Fourteenth Amendment to the Con-
stitution of the United States, when in fact these statutes
have so long been held constitutional by the courts of
the state and have so long been accepted and followed
by the practice of the state as constitutional, that their
constitutionality can no longer be questioned, and said
petition in error should not be filed as a matter of right
and is on file without authority or right. (Record pages
10-11).

A hearing was had on said motion and on December
5, 1922, said court sustained said motion and dismissed
said petition in error. (Record page 11).

On February 7th, 1923, plaintiff in error filed his
petition for a writ of error (Record pages 12-13), and on
said date same was allowed by Hon. C. T. Marshall,
chief justice of the Supreme Court of the State of Ohio.
(Record pages 13-15).

The questions that said assessment exceeded the
benefits to said property and that it exceeded one-third
of the value of the property after the improvement was
completed were both raised in the Common Pleas Court
and the Court of Appeals and determined as hereinbe-

fore stated, but neither of them were raised in the Su-
preme Court and probably could not be.
State, ex. rel., vs. Sockman, 84 0. S. 477;
State, ex. rel., vs. The Union Central Life
Insurance Co., 84 O. S. 459;
Meyer vs. Beck, et. al., 87 O. S. 182, 186.

There was but one point of contention before the
Supreme Court of Ohio, to-wit, that the statutes of Ohio
relating to special assessments for street improvements
are contrary to the Fourteenth Amendment to the Con-
stitution of the United States, in that they fail to pro-
vide for notice to and hearing of the owner of the prop-
erty assessed, and thereby permit such owner to be de-
prived of his property without due process of law, and
this was the only question plaintiff in error attempted to
bring before said court, and he was there heard both on
brief and in oral argument, and this is the only question
before or that can now be before this court in this case.

ARGUMENT.

In the ten assignments of error (Record pages 14-
15), there is but one claim, the unconstitutionality of the
special assessment statutes of Ohio, and this claim is
made solely for the reason that said statutes do not pro-
vide for a proper notice, and do not provide for a hearing
or opportunity to be heard with reference to a special
assessment before it becomes a finality as required by
the due process of law clause of the Fourteenth Amend.
ment to the Constitution of the United States. (Sixth
assignment, Record page 15). The other assignments
are but repetitions of this.

Notice.

Notice to the owner of property to be assessed is
| provided for in the statutes.

‘©When it is deemed necessary by a municipality
to make a public improvement to be paid for in
whole or in part by special assessments, Council
shall declare the necessity thereof by resolution

* * * Such resolution shall be published as
other resolutions, but shall take effect upon its
first publication.’’ Section 3814, General Code
of Ohio.

Section 3815 G. C. O. provides what shall be deter-
mined in said resolution.

‘““4 notice of the passage of such resolution
shall be served by the clerk of Council, or an as-
sistant, wpon the owner of each piece of property
to be assessed, in the manner provided by law for
the service of summons in civil actions. If any
such owners or persons are not residents of the
county or if it appears by the return in any case
of the notice that such owner cannot be found,
the notice shall be published at least twice in a
newspaper of general circulation within the cor-
poration. Whether by service or publication such
notice shall be completed at least twenty days be-
fore the improvement is made or the assessment
levied, and the return of the officer of person serv-
ing the notice, or a certified copy of the return
shall be prima facie evidence of the service of the
notice as herein required.’’ Section 3818 G. C. O.

‘At the expiration of the time limited for so
filing claims for damages, the Council shall deter-
mine whether it will proceed with the proposed
improvement” * * * Section 3824 G. C. O.

‘Tf the Council decides to proceed with the im-
provement, an ordinance for the purpose shall be

sed. Such ordinance shall set forth specif-
ically the lots and lands to be assessed for the im-
provement, shall contain a statement of the gen-
eral nature of the improvement, the character of
the materials which may be bid upon therefor, the

8

mode of payment therefor, a reference to the reso-
lution therefore passed for such improvement with
date of its passage, and a statement of the inten-
tion of Council to proceed therewith in accordance
with such resolution, and in accordance with the
plans, specifications, estimates and profiles pro-
vided for such improvement.’’ Section 3825 G,

C. O
“ * * * Ordinances of a general nature,

or providing for improvements shall be published
as hereinafter provided before going into opera-
tion * * * % Section 4227 G. C. O.

Section 3881 G. C. O. provides for assessment and
issue of bonds, and the latter part of said section is as
follows:

*“‘Any person so assessed shall have the option
of paying his proportion of the assessment in cash

within the period of thirty days from the date of
levy thereof upon due notice being given.”’

Thus in addition to the requirement of publication
of the resolution and ordinances, service of notice by
Section 3818, and notice by Section 3881 is required, and
this latter section does not provide the kind or manner
of notice, so

‘Where a statute requires notice of a proceed-
ing, but is silent concerning its form or manner
of service, actual notice will alone satisfy such re-
quirement.’’ Moore vs. Given, 39 O. S. 661, Syl. 2.

The notice required by Section 3818 was served
strictly in conformity with the statute, and when so done
this notice has been held by the Supreme Court of Ohio
to be sufficient to give the Council jurisdiction and au-
thority to assess.

City of Canton vs. Wagner, 54 O. S. 329;
Joyce vs. Barron, Treas., 67 O. S. 264;
Cincinnati vs. Sherike, 47 O. S. 217.

9

Also the property owner is charged with notice of
the proceedings after notice of the passage of the reso-
lution of necessity, and with notice of the publications.

The Ohio Supreme Court has held the notice of Sec-
tion 3818 sufficient to give the property owner the right
to approach the Council and be heard with respect to the
character of the pavement to be laid, as well as to file
nis claim for damages.

Joyce vs. Barron, Treas., 67 O. S. 264, 269;
Also, Green vs. Cincinnati, 4 0. C. D. 573,
574.

It has been held that where a statute does not pro-
vide for notice to owners of property to be assessed,
such failure does not render the statute unconstitutional
or void, also

That notice by publication is sufficient for assess-
ment of tax for construction of a sewer.

Paulsen vs. Portland, 149 U. 8S. 29, Book
37, page 640;

Security Trust Co., ete., vs. City of Lexing-
ton, 203 U. S. 324, 51 L. Ed. 204.

“The Legislature of a state may provide for
the apportionment of the cost of a street pavement
upon the abutting lots, according to frontage,
without any preliminary hearing as to benefits,
and this will not constitute a taking without due
process of law.”’

French vs. Barber Asphalt Paving Co., 181

U. S. 324, 45 L. Ed. 879.

Owner’s Right to Hearing.

Council meetings are open to the public. Section
4239 G. C. O.

10

The notice provided for in Section 3818 gives the
right to approach the Council.

Joyce vs. Barron, Treas., 67 O. S. 264, 269;

Green vs. Cincinnati, 4 O. C. D., 573, 574.

Plaintiff with his counsel was heard by the Council
as to the manner of improvement. (Fact 20).

Sections 3827, 3828, 3830, 3831 and 3832 provide for
the consideration and determination of the owner’s dam-
ages, if any.

‘‘Before adopting an assessment made as pro-
vided in this chapter, the Council shall publish no-
tice for three weeks consecutively, in a newspaper
of general circulation in the corporation, that such
assessment has been made, and that it is on file in
the office of the clerk for the inspection and ex-
amination of persons interested therein.’’ Sec-
tion 3895 G. C. O.

“If any person objects to an assessment, he
shall file his objections, in writing, with the clerk,
within two weeks after the expiration of such no.
tice, and thereupon the Council shall appoint three
disinterested freeholders of the corporation to act
as an equalizing board.’’ Section 3848 G. C. 0.

Section 3850 provides for a hearing by the Board of
Equalization of all objections made to assessments and
authorizes that board to make such finding and order as
shall be required by the facts.

“‘Common pleas and superior courts may enjoin
the illegal levy or collection of taxes and assess-
ments, and entertain actions to recover them back
when collected, without regard to the amount
thereof, but no recovery shall be had unless the
action be brought within one year after the taxes
or assessments are collected.’’ Section 12075 G.
C. O.

Plaintiff under this section has had two full hear-
ings upon the merits of the assessments, one in the Com-
mon Pleas Court and one in the Court of Appeals, and

ll

this in addition to the consideration and determination
by the village Council with his right to there appear,
had he so desired, and the assessments did not become a
finality until the determination by the Court of Appeals
which court is authorized under the laws of Ohio to, in
such cases, determine the amount properly assessable.

* * * “The court * * * may render
judgment for the amount properly chargeable
against said defendant or on such lot or land, but
in such cases the court shall make such order for
the payment of costs as it may deem equitable or
proper.’’? Section 3901 G. C. O.

In a suit brought by a treasurer to collect a
street assessment, and a judicial determination is
made that the assessment substantially exceeds the
benefits, the trial court has jurisdiction, upon
proper pleadings, to go forward and determine
what amount should be assessed.

Walsh, et. al., vs. Sims, Treas., et al., 65
O. S. 211;
}riswold vs. Pelton, Treas., 34 O. S. 482.

Whenever by the laws of a state or any state au-
thority a tax is imposed upon property for the public
use, and provides for a mode of contesting the charge
thus imposed in the ordinary courts of justice, the owner
of such property has due process of law.

Walston vs. Nevin, et al., 128 U. S. 578,
Book 32, page 544;

MeMillin vs. Anderson, 95 U. S. 37, Book
24, page 335;
Davidson vs. Board of Administrators, etc.,
96 U. S. 97, Book 24, page 616;
Paulson vs. City of Portland, 149 U. S. 37,
Book 37, page 637;

Spencer vs. Merchant, 125 U. S. 345, Book
31, page 768;

King vs. Mullins, 171 U. S. 405, Book 43,
page 214;

12

King vs. Portland, 184 U. 8. 61, 69-70, 46
L. Ed. 431, 436;

Adler vs. Whitbeck, 44 O. S. 539, 571;

Musser vs. Adair, 55 O. S. 466, 474;

Hodge vs. Muscatine County, et. al., 196 U.
S. 275, 281-282, 49 L. Ed. 477, 481-482:

Security Trust, Ete., Co., vs. City of Lex-
ington, 203 U. S. 323, 51 L. Ed. 204, 208;

Ballard vs. Hunter, 204 U. S. 242, 255, 51 L.
Ed. 462, 472.

Limitations Provided.

Section 6 of Article 13 of the Constitution of Ohio
provides that the General Aseembly shall restrict
municipal corporations in assessments, etc., so as to pre-
vent the abuse of such power.

Section 3820 G. C. O. requires the corporation to
pay such part of the expense of improvements for which
special assessments are levied as to the Council seems
just, but this part shall not be less than 1/50 of all such
cost and expense and in addition the cost of intersec-
tions.

“The Council shal] limit all assessments to the
special benefits conferred upon the property as-
sessed, and in no case shall there be levied upon
any lot or parcel of land in the corporation any
assessment or assessments for any or all purposes,
within a period of five years, to exceed thirty-
three and one-third per cent. of the actual value
thereof after the improvement is made. * * * ”
Section 3819 G. C. O.

“ * * * but the proceedings shall be
strictly construed in favor of the owner of the
property assessed or injured, as to the limitations
on assessment of private property, and compen-
sation for damages sustained.’’ Section 3911 G.
C. O.

13
This section refers to improvements of any kind.
Not a Taking of Property.

Plaintiff has and probably will here contend that
this was a taking of his property. This cannot be until
the assessment exceeds the benefits. There were no dam-
ages to his property. The determination of the Court
of Appeals of the benefits is final.

There is no complaint that this assessment is not
uniform or ratable.

A ratable assessment of the property to the extent
of the special benefits, violates no constitutional right of
the owner, and is just and proper.

Walsh vs. Barron, Treas., 61 O. S., 15.

The special assessment statutes of Ohio, as often as
the question has been raised, have been held not to violate
the Constitution of Ohio.
Hill vs. Higdon, 5 O. S. 243;
Ernst vs. Kunkle, 5 O. S. 520;
Reeves vs. Treasurer, 8 O. S. 333;
Walsh vs. Barron, Treas., 61 O. S. 15;
City of Dayton vs. Bauman, 66 0. S. 379,
393 ;

County Commissioners vs. Gates, 83 O. Ss.
31-32;

Railroad Company vs. Connelly, 10 0. 8.
160;

Conservancy District vs. Ryan, 104 O. S. 85,
and also that they do not violate the Constitution of the
United States.

Ernst vs. Kunkle, 5 O. S. 524;

Schroeder vs. Overman, Clerk, ete., 61 O.

S. 1.

14

‘*All courts shall be open and every person, for
an injury done him in his land, goods, person, or
reputation, shall have remedy by due course of
law, and shall have justice administered without
denial or delay. Suits may be brought against the

state, in such courts and in such manner, as may
be provided by law.’

Article 1, Section 16, Ohio Constitution,

The General Code of Ohio, Section 3812, specifies
the purposes, the property upon which and the method
by which special assessments may be levied by municipal
corporations. It operates alike upon all persons and
property similarly situated, and provides for notice to
the owners of the property to be assessed and oppor-
tunity for hearing before the municipal authorities, and
also for a proceeding in and full hearing by the courts
of the state, which courts are empowered to correct or
set aside any wrongful or excessive assessment, or part
thereof. Plaintiff has had the advantage of all these
safeguards, and availed himself of the privilege, If
this be not due process of law, how ean due process of
law be prescribed?

That this assessment was made strictly in accord-
ance with the laws and Constitution of Ohio is not dis-
puted. The Ohio courts have so found. That such as-
sessments do not violate the Constitution of the United
States has been for many years held as settled law by
‘he Supreme Court of the United States. To cite the
eases determined by the supreme courts of the differ.
ent states and of the Supreme Court of the United States
in which such assessments have been maintained would
require many pages.

It seems that a brief examination of these authorities

would convince plaintiff in error that his claim here is
untenable, and while any constitutional question with

15

proper grounds for presentation would not be frivolous,
yet it is frivolous to present an untenable claim against
long settled principles.

It also seems that this question would not need fur-
ther argument and ought to be affirmed, and also that
this court might well dismiss the petition in error as an
unwarranted appeal to the court.

Respectfully submitted,

W. J. Mean,
Altorncy for the Village of Lindsey, Ohio.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0050%3A2. Public record. Not legal advice.