#### The State ex rel. The City of Columbus *v.*Levi T. Strader, Auditor of Franklin County.

1. The *proviso*contained in section 539 of the municipal code, as amended April 12, 1873, does not affect the authority conferred on municipal corporations to raise by general levy the necessary amount of money to pay the cost and expenses of widening and opening streets. The object of referring in section 539 to section 583, is to enable the council, when it determines to make the improvements named in the *proviso,*by special assessment, to avail itself of the means provided by section 583 for executing the assessment.

*2.*Taxes raised by general levy for the improvement of streets, are included in the aggregate amount of taxes, to the levying of which corporations are restricted by section 648 of the municipal code.

Mandamus.

This case comes before the court on the answer of the defendant to an alternative writ of mandamus.

On the 14th of December, 1874, the city council of the city ■of Columbus passed an ordinance, in which they ordered Long street to be opened and widened seventy-five feet wide, from Seventh street to Pike street. By the same ordinance, it was declared to be necessary to appropriate for the purpose certain property in the ordinance specified, and the necessary steps were ordered to be taken to effect such appropriation.

For the payment of the expenses of opening and widening the street, the ordinance contained the following provision :

“ Sec. 3. That, for the purpose of defraying the cost and expense of so opening and widening said Long street, as hereinbefore provided for in this ordinance, such cost and ■expense shall be levied and assessed upon all the real and personal property of said city, as shown by the general tax •duplicate of the county, in its due proportion, and collected as other taxes, unless otherwise ordered hereafter by this council?’

*528On the 14th of June, 1875, an ordinance was passed,, by which it was ordained by the city council, “ That the sum of two mills be and the same is hereby levied and assessed upon each dollar of taxable property in the city of Columbus, for the cost and expense of widening East Long street.”

The defendant, in his answer, avers and submits to the court, that the levy of the tax which the said city council undertook to make by passing said ordinance of June 14, 1875, was and is unauthorized and void, because, when said ordinance was passed, there was no statute in force empowering said city council to levy a tax upon the taxable property in said city on the grand duplicate, for the purpose for which said city council undertook to levy said tax. Neither the whole nor any portion of said improvement of widening East Long street passes by or through any public wharves, market-spaces, parks, cemeteries, public grounds, structures for the fire department, for water-works, school buildings, infirmaries, market buildings, workhouses, hospitals, houses-of refuge and correction, gas-works, public prisons, or any other public structure within the limits of and belonging to said city of Columbus.

He also sets up, in his answer, that the taxes levied by said city council, by an ordinance passed June 7, 1875, and which had been certified to the defendant prior to the passage of said ordinance of June 14,1875, in terms levied taxes which, in the aggregate, exceed nine and one-half (9J) mills on each dollar of valuation of taxable property within the-corporate limits of said city, including the levy for general purposes, over and above the tax for county and state purposes, and excluding the tax for schools and school-house purposes ; and when said city council passed said ordinance-of June 14, 1875, they had no power or authority to levy any additional tax whatever, to be charged on the said grand duplicate for the year 1875.

It is admitted that the city of Columbus is a city of the second class, having a population of over thirty thousand and less than eighty thousand inhabitants.

*529
      *Lorenzo English*and *J. Wm. Baldwin,*for the relator:

I. The council’s authority to assess said costs and expenses upon the general duplicate is found in section 589, chapter 48, of the municipal code.

In section 539, as it now stands, the provision is that the council may assess such costs and expense upon the lots benefited, *or*upon the general duplicate, and then follow the words “ *as provided in section*583.” This latter clause must be construed as applying only to that clause of the proviso preceding, which authorizes the council to assess such costs and expense upon the lots “ benefited thereby,”' and does not have any reference to assessing the same upon the general duplicate. 'There is little meaning in applying the words “ as provided in section 583 ” to the power to assess upon the general duplicate, while there is evidently much in applying them to the power to assess upon the-lots benefited.

If it be insisted that the words “ as provided in section 583 ” apply to the exercise of the power of assessing the costs; upon the general duplicate, we ought to find, in some of the sections named in section 583, how it should be done. Section 582 is the only one that has a word about entering’ anything upon the general duplicate. It has no particular-reference to the mode of making assessments for widening streets, but directs the mode to be pursued when a certain proportion of the cost of any improvement passing through or by the corporation’s property shall be assessed upon the-general duplicate. That mode is that “ the council shall authorize ” it “ to be certified to the county auditor and entered for taxation upon the general duplicate of all the real and personal property subject to taxation within the limits-of the corporation.” Read, then, with all that there is in section 582 referring thereto, the clause in section 589 would ordain that the council should have power to assess the costs of such appropriation and improvement “upon, the general duplicate of all the real and personal property-subject to taxation within the limits of the corporation,” and “ the council shall authorize ” “ such costs to be certified: *530“to the county auditor, and entered for taxation upon the general duplicate of all the real and personal property «subject to taxation within the limits of the corporation.” Under such construction, there may be repetition and tautology, but there is harmony of the section in all its parts, which the construction put thereon by defendant fails to produce. And we conclude that “when said ordinance {of June 14, 1875) was passed, there was a statute in force •empowering said city council to levy a tax upon the taxable property in said city on the grand duplicate for the purpose for which said city council undertook to levy said tax.”

Section 648 is part of chapter 51 of municipal code relating exclusively to “finance and taxation.”

Section 539, by which power is granted for making this special assessment by the council, is part of chapter 48. And section 583, mentioned therein, is part of chapter 49 •of the code. All the special assessments referred to in "these sections are outside of the provisions of 'chapter 51? which pertains alone to the taxation for the general purposes of the corporation, its general revenue, and funds to ■be *annually*raised for municipal improvements or special objects, for which there is no provision to levy any *special*«assessment. A special assessment is not necessarily an assessment upon certain individual lots or parcels of property. A tax can be specially assessed upon the general duplioate. The municipal code recognizes the well-understood •distinction between *'taxes*and *assessments.*The taxes which it authorizes to be levied, it also distinguishes as general and special, or for special purposes. Manifestly, we think, the limitation imposed by section 648 upon the power of the council in the matter of taxation applies to the *general*taxes of the corporation, making its *general*revenue, which the council can only levy annually, and does not embrace assessments, or special taxes, or taxes authorized for special purposes, which the council, under the provisions of the code, may levy as the occasion arises.

Neither section 648, nor anything in chapter 51, applies *531to any assessments upon the general duplicate as provided in section 539.

The proviso to section 648 shows that the taxes to which ■its limitation applies, shall he by the council, at the time its rate is fixed and certified to the auditor, distributed to the different departments of the city-in proportion to their needs.

This can not embrace assessments, or special taxes, or taxes levied for a special purpose.

If section 648 is dominant over the whole subject of assessment and taxation, what is to be done with section 672 ? It stands as originally passed in 1869, while section 648 was passed in 1871. If the latter is to govern all the other provisions of the code that relate to taxes and assessments, then this sinking-fund levy can not be made additional to other taxes. If our construction is correct, chapter 51 and section 648 are by themselves, while chapters 48, 49, and 53 are also by themselves, and not abrogated or diminished by the former.

The word “ taxes,” as used in section 648, must be understood to have been used in the same sense as in the constitution and general legislation of the state, as judicially recognized by the Supreme Court, and to mean “ impositions for general revenue” of the corporation. Assessments and special taxes for improvements, authorized by the municipal code, are not of the general revenue of a municipal corporation, and are not within the purview of the word taxes, as used in section 648. *Reeves*v. *The Treasurer of Wood County et al.,*8 Ohio St. 338; *Hill*v. *Higdon,*5 Ohio St. 243; *Scovill*v. *City of Cleveland et al.,*1 Ohio St. 137; *Bond v. The City of Kenosha et al.,*17 Wis. 284; Cooley’s Constitutional Limitations (2 ed.), 496.

*L. j. Critehfield, Harrison <$• Olds,*and *C. N. Olds,*for defendant:

I. Has the general assembly conferred upon city councils the power to levy a tax upon the general duplicate to ' pay for a right of way for widening streets ?

*532The answer to this question depends upon the proper-construction of sections 539 and 583 of the municipal code. Thus, section 539 confers power to assess the cost of lands-appropriated in widening streets upon the lots or lands-benefited by the extension of the street, or upon all the-taxable property in the city, *as provided in section*583.

Section 583 has reference to three things: 1. The ordinance authorizing the street improvement; 2. How the-property shall be appropriated; and, 3. That the assessments made for the purpose of paying the cost and expense of opening, extending, widening, or straightening such street, alley, or highway, shall be made and approved in accordance with sections 577, 578, 582, 584, 585, 586,, 587, 588, and 589, and subject to the limitations contained in section 543, as amended May 2, 1871.

The only provision in these sections which authorizes a tax upon all the property in a city or village, to defray the cost of widening, etc., streets, is contained in section 582. And it authorizes such tax only when the *whole*or a part of the widened street passes by or through any public grounds within and owned by the city or village.

The precise question is, whether the clause, “ as provided in section 583,” qualifies, and, in effect, forms a part of both members of the clause which’immediately precede it, or only the first member — that is, does it qualify the words. “ upon the general duplicate of all the real and personal property subject to taxation within the limits of the corporation,” as well as the provision that the cost of any appropriation of real estate for laying off, etc., any street,, etc., may be assessed upon the lots or lands benefited thereby. According to the grammatical construction of the sentence, the qualifying words, “as provided in -section 583,” apply to both. And if the intention was that they should qualify only what relates to assessing the cost of such appropriation upon the lots or lands benefited thereby, they would have been inserted immediately after it, so-that the sentence would, in substance, have read, that the-cost of such appropriation may be assessed upon the lota *533and lands benefited thereby, in the mode provided in section 583, or upon the general duplicate.

II. Section 648 of the municipal code, as amended May *2,*1871, is plain, explicit, and unequivocal. Its terms are :SO clear and definite that the meaning is apparent. The intention of the legislature is evident from the fair and natural import of the terms used and the subject-matter. 'There is, therefore, no room left for construction. In such ■cases the legislative will must be obeyed by the courts.

It seems too plain for argument, that the phrase “ aggregate of all taxes,” as used in section 648, embraces taxes for all the purposes specified in section 644. Now, the purpose first specified therein is a tax “ for the real estate and right ■of way for *any*improvement authorized by *this act.”*This ■embraces the tax in question. This view of the case of the relatrix puts an end to it.

If the language of the statute was not plain, explicit, and ■unequivocal, and did *not*show with irresistible clearness the manifest intention of the legislature, such intention could be gathered from the history of the statute, and the character of the amendments that have, from time to time, been made thereto, as well as the title of the amendatory act itself, which is, *“an act limiting the rates of taxation in municipal ■corporations.”*

The municipal code is but a single act, and the sections must be read together, and this applies to sections that have ■been amended as well as to those not amended.

If the limit fixed by section 648 was not intended to embrace the levy authorized by section 672 for a sinking fund, it was very easy for the legislature, in excluding levies for ■certain purposes, as they did as to some, to have included in the exception the levy for sinking fund. Not having included that levy in the exception, they did not intend to except, and have not excepted it from the limitation. Has a more palpable case than this ever occurred for the clear and firm application of the maxim, that the express mention of one thing implies the exclusion of another.

*534"White, J.

There are only two questions we deem it necessary to determine in this case :

1. Whether the city council were authorized to raise by levy on all the property in the city on the general duplicate,, the necessary amount of money to pay the cost and expenses-of widening and opening Long street ?

2. If such levy is authorized, whether it must be included in the *maximum*fixed by section 648 of the municipal code-for cities of the class to which Columbus belongs ?

The first question depends on the proper construction of section 539 in connection with section 583 of the municipal-code, as these sections were amended April 12, 1873. 70-Ohio L. 127.

In giving construction to these amended sections it is important to observe the system introduced by the code for the-government of municipalities, and the classification which it makes of their various powers and duties.

Chapter 15, which consists of section 199, is devoted to-defining the general powers of municipal corporations. Among the powers granted is the power “ to lay off, establish, open, widen, straighten, extend, improve, keep in order and repair . . streets.”

Chapter 47 has reference to the appropriation by the-municipalities of private property for public uses. Among the uses to which such property is authorized to be appropriated is the “ opening, widening, straightening, and extending streets.”

In the exercise of these general powers, in the absence of special provisions on the subject, the costs and expenses-would have to be raised by general taxation of the property within the corporation.

Section 539, now in question, is part of chapter 48. That chapter prescribes general rules relative to improvements- and special assessments.

Section 583 is found in subdivision 3 of chapter 49. The subdivision is .devoted to special assessments ; and section 583 and all the sections named in it refer solely to that sub-ject. These sections provide two ways in which special as*535sessments may be paid or satisfied: 1. By enforcing the assessment; 2. By levy upon all the property on the general duplicate.

The mode last named is authorized to be resorted to •when the,, improvement passes by or through public property, or the property of public institutions or establishments, as specified in section 582. In such case, it is declared that “ it shall be lawful for the council to authorize the proper proportion of the estimate cost of such improvement to be certified to the auditor, and entered for taxation upon the general duplicate of all the real and personal property subject to taxation within the limits of the corporation.” So, also, where the assessment exceeds the amount allowed to he charged upon private property, the excess is to be paid by the corporation out of its general revenue. See. 543.

By section 539, it is declared, in the first place, that for the payment of the cost of certain improvements, including land appropriated for rights of way, “ the council *shall levy and assess a tax upon the general duplicate*of all the real and personal property subject to taxation within the limits of the corporation.” The *proviso*declares that where land is appropriated for the purposes of a street, the council “ *shall have power to assess*the cost and expense of such appropriation and improvement upon the lots or lands benefited thereby, . . . or upon the general duplicate of all the real and xaersonal property subject to taxation within the limits of the corporation, as provided in section 583. . . .”

This last clause is not intended as a repetition of what had been expressed in the preceding part of the section; nor is it intended to restrict the exercise of the power of general taxation for the purposes named, to cases where the street or improvement passes by or through public grounds, as claimed by the defendant.

The object of referring, in section 539, to section 583 is to enable the council, when it determines to make the improvement named in the proviso, *by special assessment,*to avail itself of the means provided by section 583 for carry*536ing out and obtaining satisfaction of tbe assessment; and does not affect tbe authority of tbe city to raise by general levy tbe necessary amount of money to pay tbe cost and expenses of widening and opening streets.

Tbe answer to tbe second question is determined by tbe construction given to section 648 of the municipal code, in tbe case of the *State ex rel. Cincinnati*v. *Humphreys.*The *maximum*of taxation allowed Cincinnati and Columbus is different, but otherwise tbe principle decided in that case determines this. We see’ no just ground on which taxes raised by general levy, for tbe improvement of streets, can be excluded from tbe aggregate amount of taxes to tbe levying of which corporations are restricted by section 648.

*Peremptory writ refused.*

McIlvaine, C. J., Welch, Rex, and G-ilmore, JJ., concurred.