Opinion
No. 4706
Decided February 20, 1952.
County ditch improvement — Petition for improvement — Notice of filing to owners of land affected — Sections 6447 and 6456, General Code — Notice to owners sufficient, when — Landowner's relief from assessment — Adequate remedy by appeal — Section 6467 et seq., General Code — Injunctive relief not available.
1. Those provisions of Section 6447, General Code, which, with reference to notice of the filing of a petition for county ditch improvement, require the county auditor to prepare and deliver to the petitioner written notice directed to "the owners of land affected by the proposed improvement" and setting forth the pendency, substance and prayer of such petition, and that "one copy of said notice shall be served upon each owner of land," do not preclude the levy of a valid assessment against the lands of an "affected" owner whose name was omitted from such petition and who, as a consequence of such omission, did not receive such notice, where such owner is served with a notice pursuant to Section 6456, General Code, which, inter alia, provides for notice to "all the owners whose names appear in the surveyor's schedules of assessments," and that if such schedule contains "names of landowners other than those mentioned in the petition, notices shall also be mailed to such landowners."
2. A landowner whose property is affected by a county ditch improvement made pursuant to Section 6442 et seq., General Code, and who desires relief from an assessment therefor has an adequate remedy by appeal pursuant to Section 6467 et seq., General Code, and may not maintain a separate suit for injunctive relief to restrain the collection of such assessment.
APPEAL: Court of Appeals for Franklin county.
Mr. William Harvey Jones, for appellant.
Mr. Ralph J. Bartlett, prosecuting attorney, Mr. Robert P. Barnhart and Mr. Howard F. Wehr, for appellees.
This is an appeal on questions of law from a judgment of the Common Pleas Court dismissing plaintiff's petition for an injunction restraining defendants from proceeding to make collection of an assessment against the lands of plaintiff by reason of a ditch improvement.
Upon issues joined by the pleadings and the findings of fact by the trial judge, there is presented a question of law only. As a conclusion of law the court held that the statutory requirement of Section 6447, General Code, for notice to owners of land affected by the construction of the proposed improvement was not jurisdictional and the failure to serve plaintiff with such notice did not prevent the board of county commissioners from levying an assessment against the lands of plaintiff, and that the notice to the plaintiff of final hearing on the improvement before the commissioners, on the report of the county surveyor, including the amount of the assessment, "was sufficient to give the board jurisdiction over the plaintiff and his property."
Three errors are assigned:
1. In holding that the notice provided by Section 6447, General Code, "is directory and not mandatory" and not a jurisdictional requirement.
2. In holding that plaintiff is estopped or has waived his right to question the jurisdiction of the board of commissioners by his appearance before the board and the filing of a remonstrance against and a claim for damages by reason of the improvement.
3. In approving the assuming of jurisdiction by the commissioners over the property of plaintiff to make changes in the course and the termini of the ditch and constructing laterals on the lands of plaintiff not included in the petition filed with the auditor.
Without restating in detail the rather extended facts out of which the controversy arises and quoting from the lengthy sections of the drainage title of the Code which have some relation to the issue, we come immediately to the applicable provisions of the few sections of the Code which we believe are controlling and determinative of all the errors assigned. Inasmuch as the rights of the parties are defined by the plain provisions of statute, it will be necessary to discuss only one of the many authorities cited by counsel in their extensive briefs.
Plaintiff rests his case for an injunction to restrain the collection of the assessment against his lands by reason of the ditch improvement eventually ordered by the defendant commissioners upon the proposition that, although his lands were affected by the ditch originally proposed, he had no notice of the filing of the petition for the improvement as provided by the mandatory language of Section 6447, General Code.
Section 6447, General Code, in part, provides:
"As soon as the dates for the view and first hearing have been fixed by the commissioners, the auditor shall prepare and deliver to the petitioner a written notice, directed to the owners of land affected by the proposed improvement, which notice shall set forth the pendency, substance, and prayer of the petition. * * * At least fifteen days before the date set for the view, one copy of said notice shall be served upon each owner of land * * *." (Emphasis ours.)
The landowners mentioned in the italicized part of Section 6447 are those whose names are set forth in the petition for the improvement as landowners who will be benefited or damaged by the construction of the proposed improvement. Obviously, no others could be contemplated because at that juncture of the proceedings neither the commissioners nor the auditor will have had any source of information other than the petition.
The case of Zimmerman v. Canfield, 42 Ohio St. 463, although not necessary, is helpful to a determination of the instant cause. The section of the Code relating to county ditches (Section 4452, Revised Statutes), under consideration in the cited case, made no provision for notice of the first view of the proposed ditch to land owners along the line of the improvement. The court there held that Section 4452, Revised Statutes, invested the commissioners with political and not judicial powers and that notice to the landowners was not essential to the validity of the proceedings thereunder. Section 6447, General Code, like Section 4452, Revised Statutes, in the cited case, makes no provision for notice to plaintiff, because his name was not listed in the petition as a landowner affected by the proposed improvement, but notice and due process of law are provided by subsequent sections.
We cannot agree that the notice defined in Section 6447, General Code, is the source or basis of the jurisdiction of the board of county commissioners to levy the assessment against the lands herein involved.
A part of finding of fact two, dispositive of our question, is that plaintiff's name was not listed on the petition as a landowner affected by the proposed ditch improvement. Had he been so named we would have another and different question.
Section 6444, General Code, prescribing the requisites of the petition for a ditch improvement, does not require that every landowner whose lands will be benefited or damaged by the improvement, as proposed, shall be set forth in the petition but only "a list of the names and addresses, where known, of all the owners of the land which the petitioner claims will be benefited or damaged by the construction of the proposed improvement." (Emphasis ours.) The petitioner may not know every owner whose lands will be affected by the improvement as he proposes it. It is conceivable that some would be omitted whom he believes will be affected by the improvement and, of course, he cannot anticipate what the route of the ditch eventually to be ordered by the commissioners will be and, therefore, cannot list names of all owners benefited or damaged by reason of the improvement.
It is inferable that the first time it appeared of record that plaintiff's lands would be benefited by the improvement was after the surveyor had made his survey of the ditch and filed his reports, schedules and proposed assessments by reason of the improvement. Sections 6454 and 6455, General Code. Succeeding the receipt of this information by the commissioners, plaintiff was given his first and only notice. This procedure is specifically authorized by Section 6456, General Code, which provides that upon the filing with the auditor of the reports and schedules by the surveyor, the commissioners shall fix a date for the hearing on the reports, and that "if the schedule of assessments filed by the surveyor contains the names of landowners other than those mentioned in the petition, notices shall also be mailed to such landowners."
This notice, by reason of Section 6456, General Code, gave the board of county commissioners jurisdiction of the lands of plaintiff and jurisdiction to determine whether to proceed with the improvement and, if allowed, to take all steps requisite to its construction, as then proposed, including the confirming of the assessment to be levied upon the lands of plaintiff. Section 6463, General Code.
Succeeding the notice given pursuant to Section 6456, General Code, plaintiff was assured full opportunity to be heard upon the necessity for and the benefits of the improvement and damages, if any, to his lands by reason thereof (Sections 6457, 6462 and 6463), and, in part, at least, availed himself of that opportunity.
As we read the Drainage Act, plaintiff was accorded every substantial right respecting the ditch improvement, as proposed in the surveyor's report, as was given to those owners of land whose names were listed in the petition. This report was before the commissioners and available to plaintiff by reason of his notice prior to the final hearing of the commissioners on the report. Note the comprehensive and material facts which the commissioners are to consider and evaluate at the final hearing. They are directed in mandatory terms to "review and reconsider the former order made by them finding in favor of said improvement." No order respecting the improvement is conclusive until the commissioners have acted pursuant to Section 6462, General Code, including the right to dismiss the petition. The commissioners have the benefit of expert advice as to the best means of accomplishing the drainage to be afforded lands mentioned in the petition and other lands in the vicinity in the interest of the public health, welfare or convenience. It would indeed be a restrictive act which would deny the commissioners the right to determine after the first hearing that there were landowners affected by the improvement other than those named in the petition.
In our judgment, the failure to give notice to plaintiff of the filing of the petition and the date of the first hearing on the proposed ditch improvement in no wise affected the jurisdiction of the board of county commissioners over his lands in said proceedings. The jurisdiction to act was vested in the board of county commissioners by reason of the notice served upon plaintiff as provided by Section 6456, General Code.
Plaintiff's relief, if any is required, is by an appeal (Section 6467 et seq., General Code), and not by a separate suit for injunctive relief.
No error assigned is well made.
The judgment will be affirmed.
Judgment affirmed.
WISEMAN and MILLER, JJ., concur.