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Superior Court of Cincinnati.

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certained; the condition being as follows:“Whereas said James E. Mooney is a person interested in the appropriation of private property, for the opening and extending of Grand street in said city from Nassau street to Gilbert avenue, which is now being considered by the boards of said city's government, now, therefore, if said city shall appropriate private property for such purpose, the expenses of the same to be assessed on property abutting thereon, and benefited thereby and the assessement to be certified to the obligors herein and cause an application to court to be made to assess the damages therefor, the said obligors bind themselves as aforesaid to pay all costs and expenses incurred by the city in such application and further to pay into court or otherwise as the law officer of the city or as the court shall direct all damages which may be assessed by the jury in such proceedings. Şaid payments to be made for costs and expenses immediately after the conclusion of the case, and for damages within the six months allowed by law.” This bond was approved by the board of public works, November 1, 1878, and was read in the board of council the same day. Nothing further was done with ii. It never was approved or accepted by the board of council and was never even read in the board of aldermen. In the board of council the condemnation ordinance was read a third time and passed November 15, 1878. On the twentysecond of November, 1878, in the board of alder men the rules were suspended, the ordinance was read three times and passed. On November 25th, it was approved by the mayor and board of public works.

Condemnation proceedings were had, and on August 22, 1879, Mooney deposited $8,750.00, the amount of the condemnation money with the city treasurer, who gave him the following receipt:

"Řeceived of Jas. E. Mooney for condeinnation of ground for the purpose of extending Grand street from Nassau street to Gilbert avenue, eight thousand seven hundred and fifty dollars. Cr. General fund. $8,750.00

Henry Stegner, Asst. City Treasurer." This money was paid to the property owners. Grand street was opened by the city as a public street and continues to be used as such. Applications have been made to council to make the assessment upon abutting lots to pay for the improvement and certify the same to the obligors of the bond, and although ordinances have been introduced, they never have been passed. Taft, J.

The claim made by the plaintiff is based on the words of the condition of the bond as the contract under which the money was paid, and which by the acceptance of the money, it is said, became an express obligation of the city to make an assessment and certify the same to the obligors. Defendant contends that even if any such obligation was entered into, it was beyond the power of the city to make and void.

The agreement to pass an ordinance is an agreement to exercise legislative power conferred upon the city council. Unless express power is given to a municipal corporation to make such a contract, I think it cannot be inferred. For a long time it was believed, and the Supreme Court of Ohio actually held that it was beyond the power of one state legislature, even in the absence of constitutional inhibition to make a contract with a citizen by which other and succeeding legislatures should not tax such citizen, that it was inherently impossible for the legislature, though it was the depositary of all legislative authority, to contract itself out of the exercise of the sovereign power to tax.

A majority of the Supreme Court of the United States took a different view, and held the state to the obligation. We may infer, however, what would be the decision upon the right of a municipal legislature acting under limited angi specified powers to effectually bind itself in advance to any particular course of iegslation when no such right was expressly given to it. See Dillon on Municipal Corporations, sec. 97. Goszler v. Georgetown, 6 Wheaton, 593.

The only place in the statutes where a municipal corporation is given authority to agree to make and certify assessments to any one is in subdivision 7 of sec. 2303. This section describes the mode by which bids for public improvements shall be received and the contracts made. In subdivision 7 it is provided that "the contract shall be between the corporation and the bidder and the corporation shall pay the contract price in cash; provided, however, that the contract price may be paid in assessments, as the council in its discretion may have previously determined; and suits to recover or enforce such assessments may be brought in the name of the corporation." This section, of course, has no application to the expense of condemning prooerty for improvements. Krumberg v.

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Mt. Adams and Eden Park Incli::ed Ry. Co. v. City of Cincinnati.

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City, 29 Ohio St., 69. It only permits council to contract to levy assessments and pay them for improvements by construction.

But it is said that this transaction was really only a mode of making a loan in anticipation of the assessment, and that power for it may be found in sec. 2704 of the Rev. Stat., which is as follows:

“The council of any municipal corporation, shall also have power to borrow money at a rate of interest not exceeding seven per cent, per annum, in anticipation of the collection of any special assessment and to issue the bonds of the corporation therefor, in the manner and form herein provided.” It is very evident that the kind of loan herein authorized is one to be evidenced by the issuing of bonds. I do not think, however, that a departure from this particular form of the obligation to be issued would be a fatal defect in the exercise of the power, were it not for other provisions in the same chapter as to the mode of issuing and selling those bonds which are made obligatory. Secs. 2703 and 2709 apply to the bonds issued under 2704. They are as follows:

"Section 2703. All bonds issued under authority of this chapter shall express upon their face the purpose for which they were issued and under what ordinance.

"Section 2709. In no case shall the bonds of the corporation be sold for less than their par value. All sales of bonds by any municipal corporation shall be to the highest and best bidder after thirty days notice in at least two newspapers of general circulation in the county where such municipal corporation is situated, setting forth the nature, amount, rate of interest and length of time the bonds have to run, with time and place of sale.".

Now if this transaction at bar is to be regarded as a loan in anticipation of assessment, the city was given no opportunity as required by statute to secure that loan on the best terms by invitation for competitive bidding: Such a course is as much beyond the city's power as to let a contract for an improvement for amount exceeding $500.00, without advertisement for bids. Whether, then, the contract upon which plaintiff relies be regarded as a contract to levy an assessment for the benefit of the plaintiff, or to repay a loan, in either case it was beyond the power of the city to make, and void.

Counsel for the plaintiffs contends that inasmuch as the plaintiffs' assignor paid the money on the faith of a promise by the city to reimburse him by giving him assessments, and the city has used the money, it is estopped to plead ultra vires in an action to recover the money paid. The cases of Louisiana v. Wood, 102 U. S., 294, and Chapman v. Douglas County, 107 U. S., 278, are cited to this point. I do not find it necessary to consider this argument, or the cases cited, to sustain it, because neither it nor they can have any application to the case at bar, it in fact the city never did promise to give Mooney an assessment. It seem to me that the evidence, taken with the legal presumptions, will not warrant the finding that the city ever made such a promise.

The writing said to contain the contract is a bond purporting to be given to the city. If this bond, like a voluntary deed, simply conferred a benefit, without giving rise to any obligation, binding the obligee, perhaps, delivery to an officer of the city, authorized to receive such an instrument, might raise a presumption of acceptance. But where an acceptance imposed on the city an obligation to make an assessment, and certify it to the obligors of the bond, I am quite convinced that the acceptance must have been clear and unequivocal to show that the city entered into such a contract as an acceptance of the bond would imply. In other words, an acceptance must be given with the same formalities, and by the same action of the co-ordinate branches of the city government, that are required to expressly make a contract of the character to be implied therefrom. Now the only city board which approved the bond, was the board of public works. It was once read in the board of council, but it was never approved or accepted, and so far as appears, it was never sert to the board of aldermen at all. It is apparent then that when the condemnation ordinance was passed, the city made no contract with Mooney to pay back in assessments, any money he might advance to make the condemnation ordinance effective.

Can the city be held to have made such contract by receiving his money one year later, and using it to buy the land? It seems to me not. If Mooney liad had no personal interest in the condemnation, his advance of the money could not be explained, except that it was made under the unaccepted bond. But he had a deep interest, and when he advanced the money, in spite of the fact that the bond had not been accepted, I think that the city was entirely justified in receiving the money from Mooney, and using it as a voluntary advance, made because of the benefit accruing to him from the improvement. The statute, sec. 2251, makes provision for such voluntary advances by persons interested, and it is a much Superior Court of Cincinnati.

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stronger legal presumption that the city authorities, in receiving the money, and Mooney in paying it, were acting within the spirit of that section, than that they were thereby entering into a contract, the obligation of which, the city had no power to incur. For this reason, we must regard Mooney's deposit as a voluntary payment, which gives neither him, nor his assignee any right of recovery.

Judgment for defendant.
Ramsey, Maxwell & Ramsey, attorneys for plaintiff.
Hedden, Galvin & Van Horn, city solicitors.

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[Clinton Common Pleas. STATE OF OŅIO v. CHARLES SMITH AND CALVIN ROLSON. Where several articles of property are stolen at the same time, the transaction

being the same, the whole, although they having two different owners, may be embraced in one count of the indictment, and the taking thereof charged as one

offense. Doan, J.

The defendants were indicted for stealing horse blankets, robes and harness, belonging to seven different owners, alleging the value of the property at $46.00. Plea: not guilty.

The proof at the trial showed the following facts: A, B, C, D, E, F, and G, all went on the evening of December 28, 1889, in their buggies, to attend a Lyceum, which was held in a township house, situated on a lot of two acres of ground, enclosed on three sides by a fence, but open in front. They hitched their horses at the hitching racks, part of them at a rack on the east side of the lot, and the remainder on the west side, the racks being 300 feet apart. They left their several articles which were afterwards stolen in their buggies. Some time between eight and ten o'clock these things were stolen, and afterwards, about one o'clock, found in the possession of the defendants. The defendants moved the court to compel the prosecution to elect upon which larceny the state would ask for a conviction. This motion the court overruled. The defendants offered testimony as to the value of goods, and rested.

The following special instructions were asked to be given to the jury hy the defendants' counsel.

First instructionThe property alleged to have been taken in this case by the defendants is laid in the indictment as the property of some different owners. Before you can find the defendants guilty as charged in the indictment, you must find from the evidence, and that too, beyond a reasonable doubt, that the said property was taken at the same time from the same place; that the whole taking, was the same transaction, and was one and the same muscular action and volition.

Second instruction-If the property claimed to have been taken in this case from different owners, were taken from separate buggies, carriages, or other conveyance of different owners, situate at different places on any public ground, so placed by said different owners, each acting separately and independent of the others, then the several takings were not from the same place so as to make the different takings one larceny.

West & Walker, attorneys for defendant, cited in support of said instructions, State v. Hennessey, 23 Ohio St., 339; 1 Whar. Crim. Law,

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secs. 27-9, 31-7; Crim. Law Mag., 714; Thatcher Crim. Cases, 81; 28 Am. Rep., 396; 20 same, 612; 35 same, 732; 24 same, 708; 180, 223, 36 Am. Rep., 106; 23 same, 602.

The court refused to give these instructions, but instructed as follows on that brauch of the case:

“The indictment charges that the property was owned by several different persons, and describes the part of the property owned by each one. It is admitted that the property, when taken, was taken from different conveyances, where the owner had left it. Now, one of these questions to be ascertained in this case is, was there more than one larceny. It is true that the defendants may be indicted in one indictment with the crime of stealing property owned by different persons, of different and separate part of the property, and convicted when it is but one larceny. If more than one larceny, then there should be as many indictments as there are separate owners of the property stolen, that constituted a separate and distinct larceny. I charge you, gentlemen, that to find the defendants guilty, there must be but one larceny; therefore, to find that there is but one larceny, it is necessary that the evidence should satisfy you beyond a reasonable doubt, that there being separate owners of separate parts of the property taken, that the stealing of all the property was one transaction done at the same time and place, and that the taking of the several parts of property was, with the same intent to steal, and one continuous act, with no other intention nor delay in getting it from the place where found, than was indispensible to take the same. Gentlemen, I have charged that you must be satisfied that the goods were taken at the same time and place. I say further that if the goods were, at the time of taking, in conveyances on the same lot, without any separation or division of one part of the lot from the other, so that the goods were near together, and in different conveyances, if so taken by one act, with the same intent to steal the goods, as I have stated, that would be one larceny; but if the goods were part on another lot, or place, or if the taking was not one transaction, or one act, or if the taking was not the same intent steal therefrom, your verdict would be not guilty, for the reason that that would make more than one larceny, and if more than one, there can be no conviction."

Verdict, guilty of grand larceny.
Sentence, one year each in penitentiary.
W. W. Savage, for State, Levi Mills, also for State.
West & Walker, for Defendants.

STREET ASSESSMENTS.

100 (Superior Court of Cincinnati, Special Term, 1890.)

LONGWORTH V. CINCINNATI (CITY). 1. Where the common council of Cincinnati passed an ordinance condemning prop

erty to widen a street, and providing that the court costs and the condemnation money should be paid by an assessment upon the abutting lot owners, to be collected in one installment. Held, that it was beyond the power of the board of public affairs to provide in the assessing ordinance, that the assessment should be paid in ten installments, and to include in the amount assessed, interest upon bonds issued by the citv in anticipation of such ten year installments, and expense of advertising.

ta contra holding by the superior court in general term is found in Ander. son v: Cincinnati; opinion post 23 B. 430.

Superior Court of Cincinnati.

100

2. Section 2304, providing that before any improvement is ordered council shall

pass a resolution declaring its necessity, has no application to the appropriation of private pro erty for public improvements, and refers only to improvements by construction. The ratio decidendi of the case of Krumberg v. City, 29 Ohio St., 75, is applicable to sec. 2304, notwithstanding the difference in the language of sec. 563, of the municipal code of 1869, under consideration in that case. and

section 2304, Rev. Stat. B. It is not essential to the validity of an appropriating ordinance and the assess

ment founded thereon, that the board of public affairs should have recommended the same or transmitted a preliininary estimate of the expense of such

appropriation. 4. In view of the fact that the assessment laws of the state have been repeatedly

upheld as valid by our Supreme Court, an inferior state court should decline to consider the question whether they violate the 14th amendment of the U. S. Constitution in not giving sufficient notice, to the property owner assessed, until the question shall have been considered and passed upon by either oui

own Supreme Court or the Supreme Court of the U. S. TAFT, J.

This is an action to enjoin the collection of an assessment made upon real estate of the plaintiffs, abutting on Ravine street in this city, to pay the expense of the condemnation of private property to widen the street.

Plaintiffs claim that the assessment is excessive, because it includes items not by law to be included therein. Again they say the assessment is void, first, because the board of public affairs did not recommend the improvement, second, because they did not have the engineer make, and forward to council a preliminary estimate of the cost of their improvement, and third, because council passed no preliminary resolution declaring the necessity of such improvement. Finally, it is urged on behalf of plaintiff that if such statutory steps are not required, then the law with reference to assessments for condemnation expenses is unconstitutional in that the abutting lot owner is not given his day in court to be heard upon the amount of the assessment, and so the assessment is taking his property without due process of law within the prohibition of the 14th amendment of the U. S. Constitution.

The condemning ordinance directed the city solicitor to institute proceedings to assess the value of the property to be taken, and provided that the amount so found, together with the costs of the action, should be assessed in one installment. The award by the jury was $1,600.01, and the costs of the suit were $56.63. The assessment was made by ordinance passed by the board of public affairs, under sec. 2314a. The entire amount assessed was $2,303.84. The excess was made up as fol. lows: Advertising.........

$150 00 Interest on bonds issued..........

496 84

$646.84 No provision for the payment of advertisement was made in the original ordinance to condemn and assess. By sec. 2264 it is provided that such part of the expense of the improvement may be assessed upon such lands, and according to such one of three methods as council may in advance determine, and in the same section it is provided that council shall determine in advance, in how many installments the assessments shall be paid, and also whether bonds shall be issued in anticipation of pay. ment. The power of the board of public affairs to assess after the work is done, is limited by sec. 2314a, 78 O. L., 259, to the mode and manner laid

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