Summary
In Wagner, as in this case, property owners sought to challenge an assessment, but they failed to pursue available statutory remedies to do so.
Summary of this case from Smith v. Board, County Coms., HighlandOpinion
No. 27900
Decided April 24, 1940.
Assessments — Construction of sanitary sewer by county commissioners — Notice given to all property owners in district — — Action to enjoin collection of assessments — Section 12075, General Code — Waived by failure to pursue statutory remedies — Sections 6602-1 to 6602-8b, General Code.
CERTIFIED by the Court of Appeals of Logan county.
On February 19, 1929, acting pursuant to the provisions of Sections 6602-1 to 6602-8 b, General Code, the Board of County Commissioners of Logan county passed a resolution determining the boundaries of Indian Lake sanitary sewer district, directing that notice be mailed to all property owners in the district and fixing March 19, 1929, as the time to hear objections to the proposed improvement, tentative assessments or proposed boundaries.
On February 22, 1929, notice was mailed to all the property owners within the proposed district.
It was expressly stipulated of record in the Court of Common Pleas that the original parties in interest had actual notice of the proposed improvement and assessments.
On July 29, 1929, a resolution was adopted by the board of county commissioners to proceed with the improvement in the district which had been modified in particulars not in controversy.
On August 20, 1929, a resolution was adopted to issue bonds to pay for the improvement.
On February 4, 1933, the final assessments, in amounts less than the tentative assessments, were approved by the board of county commissioners and certified to the county auditor for collection.
On November 5, 1937, an action was commenced in the Court of Common Pleas of Logan county to enjoin the collection of future assessments against the lands of plaintiffs on Shawnee and Seminole Islands and to order the county treasurer to refund payments made, under protest, one year prior to the filing of their petition.
The Court of Common Pleas denied equitable relief and dismissed the petition of plaintiffs.
Upon appeal on law and fact, the Court of Appeals found for the defendants, one judge dissenting, and certified the record to this court for review and final determination on the grounds of conflict with Falor v. Mong, Aud., 47 Ohio App. 442, 191 N.E. 445.
Messrs. Emerson, Robinson McGee, for appellants.
Mr. J. Ewing Smith, prosecuting attorney, and Mr. Laverne C. Atha, for appellees.
The principal question of law involved is stated by counsel for plaintiffs, appellants herein, as follows:
"Where a property owner did not avail himself of his statutory remedies, is he barred from seeking to enjoin, under Section 12075 of the General Code, the collection of assessments for the construction of a sanitary sewer, the proceedings for which were properly had and notice given before the improvement was made, when the circumstances are such that the improvement was not and cannot be of any benefit to his land?" (Italics ours.)
The Court of Appeals relied upon the case of City of Cuyahoga Falls. v. Beck, 110 Ohio St. 82, 143 N.E. 861, and found that "the appellants and their predecessors in title had due and legal notice of the improvement and tentative assessments in controversy prior to the construction of the improvement and an opportunity to be heard in opposition or defense thereto, comprehending a full, complete and adequate remedy at law for all the matters complained of in the amended petition herein, under the provisions of the sections of the General Code of Ohio authorizing said improvement and assessments, of which they failed to avail themselves, and that the said appellants thereby waived the right to question the assessments in a court of equity under the provisions of Section 12075 of the General Code of Ohio." No finding was made by the Court of Appeals on the question whether the lands of plaintiffs received a benefit from the present sewer construction.
The same fundamental principle, applicable to failure to pursue statutory remedies after notice, was enunciated also in Bashore v. Brown, Treas., 108 Ohio St. 18, 140 N.E. 489, and Hammond, Treas., v. Winder, Recr., 112 Ohio St. 158, 147 N.E. 94.
The facts in the Falor case, supra, with reference to notice to the property owner, are readily distinguishable from those of the case at bar inasmuch as notice is here conceded.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, MATTHIAS and HART, JJ., concur.
WILLIAMS and MYERS, JJ., dissent.