The common pleas court found that the General Assembly vested jurisdiction over challenges to sewer assessments with the probate court. The common pleas court further found that, pursuant to Wagner v. Messner (1940), 136 Ohio St. 514, a landowner like Smith could not file an action to enjoin a sewer assessment if the landowner had notice of the assessment proceedings and did not avail herself of the statutory remedies. Thus, the common pleas court concluded that it lacked jurisdiction over Smith's complaint.

Cuyahoga Falls v. Beck (1924), 110 Ohio St. 82, 102, 143 N.E. 661, 666. See, also, Wagner v. Messner (1940), 136 Ohio St. 514, 515, 17 O.O. 155, 155, 26 N.E.2d 1018, 1019. This court has held that "a court may not entertain an action for declaratory judgment when the plaintiff has not exhausted" other remedies available to it.

The facts would support the conclusion that Wolfe had not properly filed his objections to the proposed assessments pursuant to R.C. 727.15, so therefore had waived this avenue of challenge to such assessments. See Wagner v. Messner (1940), 136 Ohio St. 514 [17 O.O. 155]. However, this untimeliness does not preclude a property owner from questioning the assessment on constitutional grounds.

In asking a reversal of the judgment below, appellant makes the principal contention that the appellee was barred from seeking injunctive relief under Section 12075, General Code, against the paving assessment, due notice of the improvement having been given before its commencement, together with the amount of the assessment to be levied, and no protest or complaint having been registered thereto. In support of this thesis reliance is placed on the cases of Bashore v. Brown, Treas., 108 Ohio St. 18, 140 N.E. 489; City of Cuyahoga Falls v. Beck, 110 Ohio St. 82, 143 N.E. 661; Hammond, Treas., v. Winder, Recr., 112 Ohio St. 158, 147 N.E. 94; Wagner v. Messner, Aud., 136 Ohio St. 514, 26 N.E.2d 1018. Secondly, the appellant urges that if the appellee was not so barred, the provisions of Section 11224, General Code, are applicable to deny appellee the right to enjoin the collection of any part of the assessment which became due and owing more than four years prior to July 6, 1940, the date upon which the petition herein was filed.

The Ohio Supreme Court has held that property owners challenging the apportionment of an assessment cannot seek to enjoin the assessment if they have failed to follow the statutory remedies available. Wagner v. Messner, 136 Ohio St. 514, 516 (1940). {¶14} However, in Domito v. Maumee, 140 Ohio St. 229 (1942), the Court determined that, although property owners forfeit their rights to enjoin the apportionment of the assessment on statutory grounds if they do not comply with statutory procedures, this does not preclude them from seeking to enjoin the assessment on constitutional grounds.

While failure to make written objection or protest, as provided by law, to the imposition of an assessment against private property, after due notice of the improvement and the amount to be levied therefor, precludes the owner from escaping payment by asserting non-compliance with statutory requirements on the part of the assessing body, it does not estop him from resisting collection on constitutional grounds. See also Wolfe v. City of Avon, supra; Wagner v. Messner (1940), 136 Ohio St. 514. The appellants assert that a different rule applies once a property owner commences but then abandons administrative review.

It has been held that where the Legislature has provided statutory remedies neither courts of equity nor law have jurisdiction of an action for injunction unless and until the parties have exhausted the remedies thus provided.Bashore v. Brown, Treas., 108 Ohio St. 18, 140 N.E. 489; City of Cuyahoga Falls v. Beck, 110 Ohio St. 82, 143 N.E. 661; Hammond, Treas., v. Winder, Recr., 112 Ohio St. 158, 147 N.E. 94; Wagner v. Messner, Aud., 136 Ohio St. 514, 26 N.E.2d 1018; Gorham Mfg. Co. v. Tax Commission of New York, 266 U.S. 265, 269, 69 L. Ed., 279, 282, 45 S. Ct., 80, 81. The plaintiff relies on a general statement of law in Ohio Jurisprudence and calls particular attention to the cases of Conn et al., Trustees, v. Jones, Treas., 115 Ohio St. 186, 152 N.E. 897, and Baxter v. Van Houter, Aud., 115 Ohio St. 288, 153 N.E. 266.

In arriving at this conclusion, in the majority opinion by Judge Zimmerman, the following cases were reviewed and considered: Bashore v. Brown, Treas., 108 Ohio St. 18; City of Cuyahoga Falls v. Beck, 110 Ohio St. 82; Hammond, Treas., v. Winder, Recr., 112 Ohio St. 158; Wagner v. Messner, Aud., 136 Ohio St. 514; Walsh v. Barron, Treas., 61 Ohio St. 15; State, ex rel., Shafer, v. Otter, Surveyor, 106 Ohio St. 415 and Baxter v. Van Houter, Aud., 115 Ohio St. 288. Section 19, Article I of the Ohio Constitution is also cited in the opinion. In the first paragraph of the syllabus of Domito v. Maumee, supra, the language indicates that such relief may be granted by a court of equity.