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[Ed. Note.-For other cases, see Courts, Cent. Dig. § 343; Dec. Dig. 100(3).]

Error to Court of Appeals, Shelby County. Action by one Cummins against the City of Sidney and others. Judgment for plaintiff on appeal to the Court of Appeals, from a judgment for defendants in the court of common pleas, and defendants bring error. Affirmed.

out fault on his own part, fails of specific | struction of a statute cannot be invoked by a equitable relief to which originally he was municipal corporation when the legality of an assessment of property for a street improvement entitled, to retain jurisdiction of the cause is challenged, where no contracts have been enin equity for the purpose of assessing dam-tered into in reliance upon a former judicial ages. Milkman v. Ordway, 106 Mass. 232; construction in respect to the statute. Newburyport Inst. for Savings v. Puffer, 201 Mass. 41, 47, 87 N. E. 562, and cases cited. This practice is not confined to cases where the relief sought is prevented by act of the defendant, as in Stewart v. Joyce, 201 Mass. 301, 87 N. E. 613. In many instances the change of circumstances arising from the lapse of time, renders the specific relief unsuitable or inequitable. Brande v. Grace, 154 Mass. 210, 31 N. E. 633; Case v. Minot, 158 Mass. 577, 33 N. E. 700, 22 L. R. A. 536; Defendant in error, on February 18, 1914, Lexington Print Works v. Canton, ubi su- brought an action in the court of common pra; De Minico v. Craig, 207 Mass. 593, 94 pleas of Shelby county to enjoin the levy and N. E. 317, 42 L. R. A. (N. S.) 1048; Went-collection of what was alleged to be an ilworth v. Manhattan Market Co., 216 Mass. legal assessment against his property. temporary restraining order was granted upon the filing of the petition, but upon the hearing of the case on its merits the petition was dismissed and judgment rendered in favor of plaintiffs in error. The case was appealed to the Court of Appeals, and there heard upon the pleadings and an agreed statement of facts in substance as follows:

374, 103 N. E. 1105.

[3] The fact that the plaintiffs waived their prayer for rescission, did not prevent the court from awarding damages in the exercise of a sound discretion. See Hanson v. Innis, 211 Mass. 301, 97 N. E. 756; Nickerson v. Bridges, 216 Mass. 416, 421, 103 N. E. 939. Plainly there was no abuse of discretion on the part of the judge in retaining the bill for that purpose. The last note admittedly was not paid until after the hearing on the merits. The defendant had opposed rescission when the bill was brought, and when that remedy presumably would have been adequate. Months later, when the efforts of the plaintiffs had resulted in increasing the value of the stock, the judge well might be lieve that in the interest of justice they and not the defendant should reap the profit of their enterprise, and that they should recover the damages resulting from the defendant's fraudulent misrepresentation without the delay and expense of another action.

Decree affirmed with costs.

(93 Ohio St. 328)

A

On September 10, 1912, the council of the

city of Sidney by ordinance declared it necin that city by paving, the costs thereof to essary to improve a portion of South street be levied by the foot front of the property bounding and abutting upon the improvement. Bonds were issued to pay the cost of the improvement, and on March 11, 1913, the city entered into a contract for the improvement, and the paving was completed that of South street, where the improvement was year. The lots on the north and south sides made, run east and west, the lots as originally laid out being 822 feet north and south, and 165 feet long east and west. Several of these lots have been built upon and improved with reference to their frontage upon certain cross streets, and have no buildings constructed thereon fronting on South street. On December 2, 1913, the council passed an ordinance assessing the cost of 517-STREET the one-fiftieth part thereof and intersections, the improvement of South street, excepting upon the owners of abutting property. The assessment on corner lots was made under the rule laid down in the case of Haviland

CITY OF SIDNEY et al. v. CUMMINS. (No. 15018.)

(Supreme Court of Ohio. Jan. 1, 1916.) (Syllabus by the Court.)

1. MUNICIPAL CORPORATIONS

IMPROVEMENTS-ASSESSMENTS-RIGHTS OF

OWNER.

In the assessment of property for a street improvement by the foot front of the property bounding and abutting upon the improvement under section 3812, General Code, no contractual V. City of Columbus, 50 Ohio St. 471, 34 N. relation arises between the municipal corporation and the property owner, and by force of the provisions of section 3902, General Code, no complete or consummate rights are acquired by an owner whose property is assessed.

E. 679. The frontage and depth of the premises of defendant were each 822 feet. There was levied against his property an assessment amounting to $434.60, being at the rate of $5.27 per foot front for 822 feet. If the corner lots on South street had 100(3)-DECISIONS-CHANGE- been assessed in accordance with the rule JUDICIAL CONSTRUCTION OF STATUTES-RE- announced in City of Youngstown v. Fishel, TROACTIVE OPERATION-STREET IMPROVE- 89 Ohio St. 247, 104 N. E. 141, 109 N. E. 575, 50 L. R. A. (N. S.) 921, Ann. Cas. 1915D, 1073; the assessment against the property

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. 517.]

2. COURTS

MENTS.

The rule that retroactive operation is not to be given to a change in the judicial con

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Case and denied relief to the corner lot owner. In the instant case the council of the city of Sidney, in its assessing ordinance, passed in December, 1913, followed the rule announced in the Haviland Case. Defendant in error sought to enjoin the assessment against his property on the ground that it had been illegally made, in that the corner lots had not been assessed their lengthwise frontage. If that method had been adopted, the front feet assessable would have been increased by the difference between the lengthwise frontage of the corner lots and their breadthwise frontage, and the assessment per foot on the property bounding and abutting upon the improvement would have been $3.88 instead of $5.27.

of defendant in error would have been assessments de novo, overruled the Haviland $320.10, being at the rate of $3.88 per foot front instead of $5.27. Acting under a provision in the assessing ordinance that the total assessment might be paid within 30 days after its passage, ten owners of property assessed voluntarily paid their assessments in full prior to December 31, 1913. Defendant in error filed his petition in the court of common pleas before the assessments had been certified, but after the dissolution of the temporary restraining order the same were certified and are now upon the tax duplicate of the county treasurer for collection. After the assessments had been levied, but prior to the bringing of the action, the owner of a corner lot died and his property was sold, the buyer agreeing to pay as part of the consideration a portion of the assessment as made by council. The bonds to cover the cost of the improvement were sold before the assessments were made. If the assessment of defendant in error is reduced cision should not have a retroactive effect. and council has power to reapportion the amount thus taken off the total assessment, no change in the aggregate original assessment will be necessary.

[2] Counsel for the city do not question the correctness of the decision in the Fishel Case and do not ask that the rule there announced be changed, but they insist that the de

Their claim is that the proceedings of the city council had, before the decision in the Fishel Case was announced, created a vested right in the property owners affected, among It was found by the Court of Appeals that them being those who had paid their assessthe levy of the assessment, amounting to ments in full prior to December 31, 1913, and $434.60, upon the property of the defendant also an obligation in the nature of a contract in error is, as to the excess of said sum over between the city and each property owner. and above the sum of $320.10, illegal, and In the Fishel Case the judicial construction that defendant in error is entitled to the of section 3812, General Code, as to the asrelief prayed for in the petition. Plaintiffs sessment of corner lots under the third methin error were enjoined from levying and col-od of assessment provided for in the section, lecting any assessments against the property was changed. Counsel invoke as applicable of defendant in error except in the aggregate to this case a rule relating to a change of amount of $320.10 or yearly installments of judicial construction of statutes which has $32.01, with interest at 5 per cent. per annum been recognized and approved by this court on said installments. Error is prosecuted to in a number of cases, and is stated by Mr. this court to reverse the judgment of the Chief Justice Waite in Douglass v. County of Court of Appeals. Pike, 101 U. S. 677, 687 (25 L. Ed. 968) as follows:

Frank J. Doorley, City Sol., and P. R. Taylor, both of Sidney, for plaintiffs in error. Andrew J. Hess, of Sidney, for defendant in

error.

construction, in respect to a statute, the same "The true rule is to give a change of judicial effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective, but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is, to all intents and purposes, the same in its effect on contracts as an amendment of the law by means of a legislative enactment."

NEWMAN, J. [1] In the case of City of Youngstown v. Fishel, 89 Ohio St. 247, 104 N. E. 141, 109 N. E. 575, 50 L. R. A. (N. S.) 921, Ann. Cas. 1915D, 1073, decided January 13, 1914, the city in assessing the cost and expense of a street improvement by the foot front of the property bounding and abutting In that case, where this rule was applied, upon the improvement, disregarded the rule it was held that where municipal bonds had as to the assessment of corner lots announc- been put upon the market as commercial ed in Haviland v. City of Columbus, 50 paper, the rights of the parties thereto were Ohio St. 471, 34 N. E. 679, and assessed the to be determined according to the statutes of entire lengthwise frontage of the corner lots the state as they were then construed by the abutting upon the improvement. A corner highest court, and in a case involving those lot owner instituted a proceeding to enjoin rights the court would not be governed by the collection of the assessment against her any subsequent decision in conflict with that property upon the ground that it was ex-under which they accrued. It was stated in cessive and illegal. She was successful in the opinion: her contention in the lower courts, but this court, considering the question of corner lot

"As a rule, we treat the construction which the highest court of a state has given a statute

of the state as part of the statute, and govern | made. As no contractual obligation in the ourselves accordingly; but where different con- making of an assessment is involved, the apstructions have been given to the same statute

at different times, we have never felt ourselves plication of the rule which is insisted upon bound to follow the latest decisions, if thereby is therefore denied. contract rights which have accrued under earlier rulings will be injuriously affected."

ed.

The holding in that case was based upon the ground that contract rights were involvIn Lewis, Auditor, v. Symmes et al., 61 Ohio St. 471, 56 N. E. 194, 76 Am. St. Rep. 428, Judge Shauck, in referring to the rule we have quoted, uses this language: "Its purpose is to secure the full operation of the constitutional prohibition of laws impairing the obligation of contracts. It is apparent, alike from the terms in which the rule is stated and from its reason and purpose, that it can be invoked only for the enforcement of rights which rest in contract. It does not appear that it has ever been applied to any other purpose."

And in Thomas et al. v. State ex rel., 76 Ohio St. 341, 81 N. E. 437, 10 L. R. A. (N. S.) 1112, 118 Am. St. Rep. 884:

"This doctrine may be invoked as a matter of right by all suitors who are in a position to assert the binding obligation of contracts."

But there is brought to our attention by the answer and agreed statement of facts, whether properly so or not it is not necessary to decide, the fact that a number of property owners had paid their assessments in full before this action was brought, and the further fact that one corner lot had been sold and the purchaser, as part consideration, had assumed a certain portion of the assessment as made by the city. It is insisted, therefore, that certain rights had vested, and that the parties had acted in reference to the assessment made by council. But we think counsel have failed to give effect to the provisions of section 3902, which reads:

"When it appears to the council that a special assessment is invalid, by reason of informality or irregularity in the proceedings, or when an assessment is adjudged to be illegal, by a court of competent jurisdiction, the council may order a reassessment, whether the improvement has been made or not."

In view of these provisions we do not see upon what theory a property owner can be said to acquire a vested right growing out of an assessment. When he pays his assessment in full he does so charged with knowledge of the provisions of this section. When property is conveyed the grantor and the grantee also are charged with knowledge that there may be a reassessment of the property in case the original assessment is held to be illegal.

Section 22, General Code, is called to our attention. This section validates the acts of the municipality acting in pursuance of a statute, the acts being valid according to judicial construction and adjudication at the time the action was had by the municipality, notwithstanding a subsequent change of such rule of judicial construction and adjudica

It is to be observed that the validity of no bond issued by the city in the improvement proceeding in the present case is drawn in question. Nor is there involved any contract between the city and a contractor in which the obligation of the city can be impaired, as was the case in Goodale v. Fennell et al., 27 Ohio St. 426, 22 Am. Rep. 321. Nowhere in the pleadings or in the agreed statement of facts does it appear that there is any obligation on the part of the city which would be affected by an order of the court enjoining it from collecting from defendant in error that part of the assessment against his property which is illegal. Such an order would, at the most, require another apportionment or a readjustment of the property within the assessing district. Raymond v. Cleveland, 42 Ohio St. 522. The assessment authorized by stat-tion with respect to other similar legislation. ute does not require the assent of the property owner. It is not in the nature of a contract. The city, acting under the authority conferred upon it by the General Assembly, imposes upon the property benefited the cost of making the improvement, less that portion assumed by the city. Such assessments are enforced proportional contributions of a somewhat special kind, made in invitum by virtue of legislative authority conferred upon the municipality for that purpose, upon such terms and conditions as the General Assembly, within constitutional limits, sees fit to impose. Sargent v. Tuttle, 67 Conn. 162, 34 Atl. 1028, 32 L. R. A. 822. If the assessment proves insufficient to pay for the improvement, the city may, under the provisions of section 3909, General Code, make an additional pro rata assessment to supply the deficiency, and under section 3902, to which we shall refer later, a reassessment may be

This section, as we view it, is practically a statutory enactment of the common-law rule which we have been considering, and an examination of it will disclose the fact that it proceeds upon the theory that rights have vested, and that loans or other things of value have been effected or acquired, or expenditures have been made by third persons, in reliance upon the construction or adjudication of the statutes. It is to be observed that the subject of assessments is not dealt with in this statute. Moreover, it is inapplicable in view of the express provisions of section 3902, supra, which specially deals with this subject. An assessment is not irrevocable, but is subject to change. The statutes confer a continuing power upon council which is not exhausted until an assessment is made which can be enforced. Brevoort v. Detroit, 24 Mich. 322.

Cincinnati v. Seasongood, 46 Ohio St. 296,

(93 Ohio St. 362) SECOND NAT. BANK OF CINCINNATI v. AMERICAN BONDING COMPANY OF BALTIMORE et al. (No. 14907.) (Supreme Court of Ohio. Jan. 25, 1916.)

(Syllabus by Editorial Staff.) LIMITATION OF ACTIONS 121(2)-COMPUTATION OF PERIOD SUBSTITUTION OF PARTIES.

Where a substitution of parties by amendment under Gen. Code, §§ 11241, 11261, makes no change in the cause of action, the amendment relates back to the commencement of the suit and stops the running of limitations as of that date; but, if the substituted plaintiff introstatute is available. duces a new cause of action, the defense of the

21 N. E. 630, is cited by counsel, and is claimed to be decisive of the question involved here. It was held in that case that a municipal corporation having, through its proper agents and officers, passed a resolution and ordinance to improve a street, in its assessment of the cost and expenses of the improvement upon the abutting property, it 1. should be governed by the law in force at the time of the passage of its improvement ordinance with respect to the manner of assessment and the rights and liabilities of the owners of abutting property. It is true that Judge Dickman, in the course of his opinion, states that the property owners acquired a vested right under the act in force at the time of the passage of the improvement ordinance. It is also said that the conclusion reached by the court was without regard to the question whether a contract obligation After removal of a trustee, his successor arose between the property owners and the brought action against a bank in March, 1901, city. In the instant case this question is for the value of securities transferred to it by controlling. Counsel for the city base their the former trustee. In August, 1901, the former trustee's surety paid to the successor the full contention upon the ground that the relations amount due the trust estate, and this was paid existing between the city and the lot owners to the beneficiary and the trust estate finally setaffected were contractual, and that the as-leged that the trust estate had been paid all loss tled in April, 1902. In the action the bank alsessment levied was in the nature of a vest- by the surety, which the reply denied. In Octoed right. This position is not tenable in view ber, 1908, the surety moved to be substituted as of the fact that an assessment is not in the plaintiff. Heid, that the surety's right of acnature of a contract, and no vested rights standing Gen. Code, § 11261, providing for contion was barred by six-year limitation, notwithwere acquired in view of the provisions of tinuation of an action in case of disability of a section 3902. party or transfer of interest.

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. § 540; Dec. Dig. 121(2).] 2. LIMITATION OF ACTIONS 121(2)-COMPUTATION OF PERIOD-SUBSTITUTION OF PARTIES.

[Ed. Note.-For other cases, see Limitation of

In Shoemaker et al. v. City of Cincinnati, Actions, Cent. Dig. § 540; Dec. Dig. 121(2).]

68 Ohio St. 603, 68 N. E. 1, a property owner sought to invalidate an assessment made against his property under a statute which had been adjudged valid by this court, and afterwards similar legislation had been held by it to be in violation of the Constitution. The court denied relief. It appears from the record in that case that city bonds had been issued to pay for the improvement, and such as had not been paid were held by innocent investors, and property rights and liabilities had grown up and become fixed beyond change on the faith of the decision of the court. These conditions do not present themselves here, and the holding in that case is

therefore not in point.

Being of the opinion that the relation existing between the city and the lot owner is not contractual in its nature, and that section 28, art. 2, of the Constitution, prohibiting the enactment of laws impairing the obligation of contracts, is therefore inapplicable, and, further, that by force of section 3902 no rights were acquired by the property owners which were complete and consummate, the defendant in error was entitled to the relief given him by the Court of Appeals. Judgment affirmed.

NICHOLS, C. J., and JOHNSON, WANAMAKER, JONES, and MATTHIAS, JJ., con

cur.

Error to Court of Appeals, Hamilton County.

Action by John C. Healy, trustee for Bank of Cincinnati, in which the American James Robinson, against the Second National Bonding Company of Baltimore was substituted as plaintiff. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with instructions to enter judgment for defendant.

This proceeding was brought in the superior court. of Cincinnati March 29, 1901, by John C. Healy, trustee for James Robinson, against the Second National Bank of Cincinnati. An amended petition was filed March 24, 1902, in which it was alleged that a trust fund was created by the will of John Robinson for his grandchild James; that, the original trustees having resigned, one Charles A. Santmeyer was appointed by the probate court of the county as their successor, and received from them, on the order of the court, the sum of $15,000, belonging to said trust, on or about the 13th of April, 1890; that on or about July 1, 1890, said Santmeyer, under the direction of the court, invested $14,550 of said fund in $12,000, face value, 4 per cent. bonds of the United States, which were duly registered on the books and in the office of the treasurer of the United States in the name of Charles A. Santmeyer, trustee; that about the 2d of October, 1899,

No further pleading was filed in the case until February, 1908, when a reply was filed, in which the defendant denied each and every allegation of new matter contained in the answer.

without warrant or authority of law, without | trustee or otherwise, in the above cause of any order or authority of said probate court, action, and no right to bring the action. It in violation of his duty as such trustee, and further alleges that the plaintiff, or the ceswithout the knowledge of the court, Sant- tui que trust, had suffered no loss by reason meyer sold and delivered $2,000, face value, of the alleged acts of Santmeyer, and that the of said registered bonds to the defendant, American Bonding & Trust Company, as the Second National Bank of Cincinnati; bondsmen of said Santmeyer, has fully repaid that the bank had due notice that Santmeyer and recompensed said trust estate for any held said bonds as trustee; that when he and all loss suffered by reason of the alleged sold said bonds to the defendant he intended acts of said Santmeyer. to commit a breach of trust; that with such knowledge the bank at the time placed the proceeds to the individual credit of Santmeyer on its books, and thereafter allowed him to draw out the same for his individual purposes; that on February 5, 1901, Santmeyer was removed by order of the court and plaintiff appointed in his stead; that the court ordered said Santmeyer, trustee, to transfer to the plaintiff all the property and assets in his hands belonging to said trust, including the $2,000, face value, of the registered bonds aforesaid; and that said Santmeyer has failed to perform the order of the court, or deliver to the plaintiff the bonds or any part thereof. Plaintiff further alleges that in October, 1899, the defendant sold the $2,000 of bonds for an amount which he has been unable to ascertain, but on information and belief alleges that it was not less than $2,340, which was the market value thereof, and prays judgment for the value thereof.

By its answer, filed on May 3, 1904, the defendant admits the creation of the trust by the will of John Robinson and the appointment of Santmeyer as successor to the original trustees, alleges that it has no knowledge of the investment of the trust funds in the United States bonds referred to, denies that Santmeyer filed any accounts in the probate court showing that he had invested the sum of $14,550 in registered bonds of the United States, denies that he held such bonds, as trustee until October, 1899, and denies that he sold and delivered $2,000 of said bonds to the defendant. It further denied that it had any notice that Santmeyer held the bonds as trustee, denied any knowledge of any attempt on the part of Santmeyer to commit a breach of trust, and denied that with such knowledge it placed the proceeds of the sale of any bonds held by Santmeyer as trustee to his credit on its books, or permitted him to draw out moneys held as trustee for his individual purposes. It denies that Santmeyer, as trustee, sold to the defendant said $2,000 of United States bonds, or that he failed to deliver to the plaintiff the $2,000 registered bonds, or any part thereof. It further denies that it has sold or transferred any bonds bought by it from Santmeyer, as trustee, to any person, and denies that it ever purchased any bonds of any kind from said Santmeyer, as such trustee, or that it had any knowledge of any sale of bonds by said Santmeyer as trustee. For a second defense the defendant alleged that the plaintiff had no interest whatever, as

On October 19, 1908, the American Bonding & Trust Company filed its application to be substituted as the plaintiff, on the ground that on August 6, 1901, it had paid to the plaintiff trustee the sum of $15,860.83, being the full amount then due to the said plaintiff as such trustee, said Santmeyer, for whom it became security, having absconded and having failed to pay the plaintiff the fund or investments thereof in his hands, or any part thereof, and that on the payment by this company to the plaintiff, the plaintiff, in accordance with the terms of the agreement between him and this company, delivered to it a receipt for the sum named, which provided that the American Bonding & Trust Company "is hereby subrogated, by reason of said payment and settlement, to all the rights and claims which the undersigned, as said trustee, may have against any person whomsoever, growing out of the misappropriation by the said Charles A. Santmeyer of the proceeds of certain bonds, explained in full in entry of the probate court in said proceeding on February 5, 1901." On February 13, 1909, the motion of the bonding and trust company was sustained, and it was ordered to be substituted as plaintiff in the place of Healy, trustee.

On February 23, 1909, the defendant bank filed an amended answer, in the second defense of which it is alleged that the original plaintiff, Healy, trustee, had no interest whatever, as trustee or otherwise, in the cause of action from the 6th day of August, 1901, and had no right or authority to maintain the action since that date, and that neither the plaintiff nor his beneficiary suffered any loss by reason of the acts of Santmeyer; that the bonding company had fully repaid and recompensed said trust estate for all loss suffered by the acts of Santmeyer, said payment having been made on the 6th of August, 1901; that the substituted plaintiff had full knowledge of the commencement of the action and the pendency thereof at the time it made said payment to the original plaintiff; that said plaintiff was at the time acting as the attorney of said bonding company, with full knowledge of all the facts herein alleged, and that said bonding company took no steps of any kind and made no application in this cause to be substituted as

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