WIDENING STREETS.

[Hamilton Circuit Court,

January Term, 1893.]

Smith and Swing, JJ.,(Judge Cox not sitting).

#### † JOS. KLEIN ET AL. v. CINCINNATI (CITY).

Property Beyond Ends or the Improvement not to be Assessed.

The city of Cincinnati condemned land for the purpose of widening and extending one of the streets of the city, and assessed the cost and expense thereof on all of the lots on said street by the foot front — not only on the lots and lands abutting on the part of the street so widened and extended, but on the lots and lands abutting on other parts of such street — having declared that they also will be specially benefited by such appropriation. Held: That the assessment made on such lots and lands not abutting on such improvement, is invalid.

Appeal from the Court of Common Pleas of Hamilton county.

†

 This judgment was affirmed by the Supreme Court without report, 52 O. S., 650. For common pleas decisión, 11 Dec. Rep., 630; see also Frey v. Findlay (city), 51 O. S. 390.

SMITH, J.

The simple question in this case, as we understand, is this: Whether, when the city has taken, by condemnation proceeding, a strip of ground on one or both sides of an existing street for the purpose of widening the same, and such is accordingly widened for a certain distance, only, and also, is extended for a certain distance, the council has the right, by ordinance only, to assess the costs and expenses thereof on all of the lots and lands on said street by the front foot — that is, not only on those abounding and abutting on the part improved, but on those remote therefrom — where the council by the assessing ordinance has declared that all of the lots and lands abutting on .the whole street will be specially benefited by such appropriation.

If it be conceded that the legislature has the right to confer such a power upon council, we think, that 'by the laws in force, it has not done so. Section 2264, Rev. Stat., under which the right to do so is claimed, does not warrant it. Section 2263 provides substantially that when a corporation appropriates or otherwise acquires lots or lands for the purpose of laying off, opening, extending or widening a street, the council may assess the costs and expenses of such appropriation or acquisition, or any paid of either, upon the general tax list; and section 2264 provides, that in the cases provided for in section 2283, and in all cases where, an improvement of any kind is made in an existing street, “the council may decline to assess the costs and expenses thereof, or of any part thereof, on the general tax list, in which event suc.h costs and expenses, of any part thereof which shall not be so assessed on the general tax list, shall be assessed by the council on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in proportion to the benefits which may result from the improvement, or according to the value of the property assessed, or by the foot front of the pro-nprtv hnnnfli'no- and abutting upon the improvement *590as the council, by ordinance setting forth, specifically, the lots and lands to be assessed, may determine before the improvement is made, and in the manner and subject to the restrictions herein contained.”

Co-ppo-ck & Gallagher, for'plaintiff.

Horstman, Galvin, Whittaker and O’Connell, City Solicitors, *Contra.*

We think it is apparent, that by this last section, power is given to the council to determine as to which of three different ways the costs and expenses of such improvements shall be assessed. It may be done:

1. On the abutting and such adjacent and contiguous or other'benefited lots and lands in the corporation, in proportion to the benefit to such lots or lands-so designated by the council, which may result from the improvement; or,

2. According to the value of the property so designated; or,

3. -By the foot front of the property bounding and abutting upon the improvement.

If the council determines, by the ordinance, that the assessment is to be made by the front fo-ot on the abutting property, we think it must be limited- to -those lots and lands abutting -on the improvement, and cannot be placed on those on a part of the street, in front of which no part of the improvement is made. But, if the council determines by the ordinance that the cost of such improvement is to be assessed, not only on such lots and lands .-as abut on the improvement, but on such adjacent or contiguous or other property designated therein as benefited in proportion to the benefits which may result thereto from such improvement, then we are of the opinion that the amount of the assessment, therein, cannot be fixed by the council by the foot front, but must b-e fixed and determined in the first instance by the board of freeholders appointed under the provisions of section 2277, which must be read in connection with section 2264.

This was not done int this case, and we think that it is contrary to the provisions of the statute, and the policy of the state, to give such an unlimited power to the council, and that, in a -case like this, iit|woul-d operate most unjustly, and that the decision of Judge Sayler, in the case of Kline v. Cincinnati, 11 Ohio Dec. R., 630, was right, and that the assessment on the property of the plaintiff, not abutting on the improvement, was invalid, and that its collection, should be restrained.