Belmont chronicle. [volume] (St. Clairsville, Ohio) 1855-1973, 1867-01-17
William Lash

vs.
The Board Of Commissionerso Of Belmont Co.
Petition fled praying that the defendants
be epjoined from constructing Q macada-
mizsd road from St. Clsirsville to War
nocks Station, on the Central Ohio Rail
Road ,-sIdistanoe Of about Ave miles.
The petition complains Of many things,
snd,e among others, that no petition cen
tanning majority Of land owners resident
in said County, whose lands will be assessed
for the expense Of said improvement, was
ever presented to the Commissioners;
That the tract for said road is located
through the plaintiffs quarter section, not
on the line Of the present public highway.
but sixty rods thereiorm;
That the sct Of April 5, 1866, provides no
method Of appropriation BY which the
plaintiff is to be compensated. and for that
reason the set is 10 violation Of the 10Th
section cfths Bill Of Rights, and osnnst be
carried into execution;
That the plaintiff 10 assessed on mis- land
$240; that said assessment is tAT, levied
upon real estate only, and not upon oil prop
erty. according to its true value in money;
That the mmissionsrs are about to issue
bonds to construct the improvement, and
thereby loan the credit Of the County, 10
violation Of the Constitution.
Upon these averments the plaintiff In
the prayer Of the petition asks TO enioin the
defendants upon three distinct grosnds:
Fnn- That the defendants Be enjoined
from placing the assessment Of $240 upon
tho County duplicate, to be collected from
the plaintiff as . tax upon his land.
IL the levy tax, within the meaning OF
the Constitution? which provides that taxes
shallbc levied upon oil property, real and
personal. according to les true value In
money.
This levy is upon the land only, within
two miles of the proposed improvement;
and, il tax in the ordinary sense Of the
term, it can not be sustained (; II would be o
clear violation Of the constitutional mode Of
lsvying taxes. A
1t is, perhaps, difficult TO draw any par.
ticular line between the taxing power and
the power Of assessment. There is. no
doubt, strip ofthought between the exer-
else Of the two powers yet to bs defined by
the Legislature and the Courts ofths State;
question in hand has been settled by au-
therity.
The law upon the subject of drains,
bitches, and water courses gees much fur.
ther than is necessary to 20 in this case.
Il Vol. Rsp. State, p. 625.) In this act the
power Of appropriation 10 given, and the
cost Of the work, together with the value Of
the land appropriated. are assessed upon the
lands benefited BY the Improvement. This
law 10 sustained by the Supreme Court in
the case Of Thompson vs. The Treasurer Of
Wsod County, IL 0. s. r., 67S.
In the law organising cities and villages
(Rev. Statues. page 1901 power is given TO
assess on the owners Of lots or lands,
through Or by which any street, alley or
public high,oay shsll pass; the power OF ap.
preparation Is given, and the whole assessed
upon the adjoinisg proprietors. In this
law power is given to open public high
ways; certainly vary extensive power, un.
der the besd ofassessment. This power is
tustsined BY the Supreme Court 10 Hill vs.
HydeR, 8, o. 3. Rep, 243, and in Ems.
va Kunkie, s, o. s. Rep, page $50.
III the Supreme Court, under the power
OF assessment, sustains these laws, extsn.
sive ss they are in their application, it
would be difficult to soc why an assessment
to grade or pave public highway would
not also be within the legislative power,
and therefore no infringement Of the Con.
stitution.
BY the 4iA section Of the aot Of April s.
1906, when the assessment Is made, Il il re-.
turned TO the Auditor, and. aftsr all objso
tions are heard and disposed Of, the Audi.
tor is required TO place the same upou the
County duplicate. To DO 80 is no part Of
the duty OF these. defendants. but lbecomes
tho duty ofa different officer The Com.
missioners are therefore, upon this point.
improper defendants.
Second. That the defendants be snioiued
from taking the land Of the plaintiff OF open.
ing the road upon the tract surveyed
through his quarter section, under color Of
the lsv OF April 8, 1865.
The defendants, BY the authority con
ferred upon them by the act. have power Il
strpiEhtep, grade, pave, gravel, plank, OF
macsdamiEs any State or County road with
in the limits Of their respective County.
BY the second section Of the sct. ii Il
provided that the Commissisnsrs shall ap
point three disintsrsstsd frssholdsrs and I
competent engineer, who shall carefully on
smins the road - asked to BE- impropsd. :
This view il sustained from The fact thar x