Superior Court of Cincinnati. 212 212 MUNICIPAL CORPORATIONS. [Superior Court of Cincinnati, General Term, 1891.] INNATI AMELIA SHEHAN ET AL V. CINCINNATI (CITY) ET AL. The law in force at the time of the passage of the improvement ordinance, governs with respect to the manner of assessment and the rights and liabilities of the owners of abutting property, 46 Ohio St., 296; this rule is not affected by the fact that the owners of the abutting property petitioned for the improvement. SAYLER, J. This case is reserved to this court on a bill of evidence, and from which bill it appears, that on November 19, 1886, a petition was filed with the board of public affairs, signed by more than three-fourths of the property froutage to be assessed, and including the plaintiffs-asking for the improvement of Seton avenue, from Warsaw pike to Rapid Run road, by grading, macadamizing the roadway, setting flat rock curb, gutters and crossings, and constructing necessary drains and retaining walls. On November 26, 1886, the engineer reported to the board of public affairs that more than three-fourths had petitioned, and the board directed him to prepare the necessary papers for the improvements. Whereupon on February 7, 1887, the board of public affairs recommended such improvement, and thereupon: On February 28, 1887, the common council passed a resolution declaring it necessary to improveSeton avenue from Warsaw pike to Rapid Run, by setting curbs and crossings, flagging gutters, macadamizing the roadway and constructing the necessary culverts, drains and retaining walls (such improvements being recommended by the board of public affairs) in accordance with plans and profiles on file in the office of the engineer of the board of public affairs. The expense of said improvement to be assessed per iront foot upon the property bounding and abutting thereon according to the law and ordinances on the subject of assessments; the assessments therefor to be payable in ten annual installments, if deferred, and the same to be collected as provided by law and in the assessing ordinance hereafter to be passed. The resolution further provided that bonds should be issued in anticipation of the collection of the assess ment. Thereupon, on May 13th, the common council duly passed an ordinance to improve Seton avenue from Warsaw pike and Rapid Run road, and whereby it was ordained that Seton avenue from Warsaw pike to Rapid Run road be improved by setting curbs and crossings, flagging gutters, macadamizing the roadway and constructing the necessary culverts, drains and retaining walls in accordance with the resolution of council adopted February 28, 1887; and further that the expenses of the said improvement, including interest on bonds, if they be issued, shall be assessed per front foot upon the property abutting thereon, according to the laws and ordinances on the subject of assessments; the assessments therefor to be payable in ten annual installments, if deferred, and the same collected as provided by law and in the assessing ordinance hereafter to be passed. The ordinance further provided that bonds should be issued in anticipation of the collection of the assessments. 212 Shehan et al. v. City of Cincinnati. Subsequently the improvement was made, and an ordinance was duly passed, whereby the expenses thereof were assessed per front foot upon the property abutting thereon. The plaintiffs respectively own lots abutting lengthwise upon Seton avenue on the corner of Warsaw pike and Seton avenue; one lot having a front of 69.16 feet on Warsaw pike, and abutting lengthwise on the east side of Seton avenue for a distance of 196.06 feet, having a width of 60 feet at right angles; the other lot ironting 51.77 feet on Warsaw pike, and abutting lengthwise on the west side of Seton avenue for a distance of 122.28 feet, having a width of fifty feet at right angles. Section 2269 of the Rev. Stat., as amended March 27, 1884, provides among other things as follows: "And if, in making a special assessment by the front foot, there is land bounding or abutting upon the improvement not sub-divided into lots, or if there be lots numbered and recorded, bounding or abutting on said improvement and lying lengthwise of said improvement, the council shall fix in like manner the front of such land to the usual depth of lots, so that it will be a fair average of the depth of lots in the neighborhood, which will be subject to such assessment." This section was amended on March 11, 1887, and by the amendment the words " or if there be lots numbered and recorded, bounding or abutting on said improvements and lying lengthwise on said improvement," were omitted from the law. Under the act of 1884 the assessable front of a lot lying lengthwise of an improvement was fixed to the usual depth of lots by the average of two blocks, whereas in the act of 1887 such lot is assessed for each foot abutting on the improvement. The question to be determined in this case is whether the law of 1884, in force when the petition of the property owners was presented to the board of public affairs, and when the said board recommended the improvement, and when the common council passed the resolution declaring it necessary to make the improvement, shall govern in making the assessment on the lengthwise lying lots, or the law passed March 11, 1887, and in force at the time of the passage of the ordinance to improve, and all subsequent steps were taken in making the assessment. A very strong argument has been made on the part of the property holders to the effect that the law in force at the time the petition to improve was presented to the board of improvements shall govern. But the Supreme Court in the case of Cincinnati v. Seasongood, 46 Ohio St., 296, lay down the doctrine as follows: "A municipal corporation having through its proper boards and officers passed a resolution and ordinance to improve a street, in its assessment of the cost and expense of the improvement upon the abutting property, it 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." The court say, p. 301, "The law contemplates that before the ordinance to make the improvement is passed, there shall be certain preliminary proceedings. Such ordinance is the resultant of those proceedings and evidences the final determination of property owners, through their public agents, to assume whatever burdens may be entailed upon them by the law in force when the improvement ordinance is passed. To enable the city to determine whether it is best to undertake the improvement to Superior Court of Cincinnati. 212 afford persons interested an opportunity to be heard, and if desired to protest or submit objections to the work, the necessity of the improvement is to be declared by resolution, and notice of the resolution brought home to the abutting owners. Plans and profiles are to be prepared and placed on file for public inspection; a careful estimate is to be made of the cost of the work; and the owners of lots and land abutting upon the proposed improvement are afforded an opportunity of filing their claims for damages. At the expiration of the time limited for filing claims for damages, the council is to determine whether it will proceed with the improvement or not, and whether the claims for damages shall be judicially inquired into. Having determined to make the improvement, it is provided by amended sec. 2264 of the Rev. Stat. that the cost and expenses of the improvement, or any part thereof which may not be 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 feet front of the property abutting upon the improvement, as 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.' It is evident from the language of this section that the property to be assessed, and the mode of assessment, whether by benefits, by valuation, or by the foot front, are to be determined by ordinance before the improvement is made; and the assessment is to be in the manner and subject to the restrictions prescribed by the statute in force at the date of the improvement ordinance." And the court further say, page 303: "It is reasonable to presume that the passage of the ordinance to improve the street was not without reference to existing rights and liabilities; the ordinance was doubtless passed in full view of the law as it then stood in regard to special assessments." It is claimed, however, that the case at bar is distinguished from the Seasongood case in that in the case at bar the property holders petitioned for the improvement, and that by such petition they waive the 25 per centum limit of the assessment and waive notice, and further that the city requires the owners petitioning to agree with each other and with the city to make good to the city any deficiency in the collectibility of the assessment caused by insufficiency of values of property of those not signing the petition, so that there is a waiver of the property owner of the 25 per centum limit and a waiver of notice, and an undertaking on his part to make good the deficiency of those not signing; that the city acted upon the petition and holds the property owner to his contract, and that therefore the property owner acquires a vested right as against the city from the date of filing the petition asking for the improvement. It is provided by sec. 2271, that in cities of the first grade of the first class the tax or assessment especially levied or assessed upon any lot or land for any improvement shall not, except as provided in sec. 2272, exceed 25 per centum of the value of the lot or land after the improvement is made. Under sec. 2272 when a petition is presented asking for the improvement, signed by three-fourths in interest of the owners abutting on the proposed improvement, the assessment may be made without regard to the 25 per centum limit. 212 Shehan et al. v. City of Cincinnati. It is clear that the provisions of sec. 2272 are for the benefit of property owners who could not otherwise obtain an improvement of streets on which their property abuts. But this section works no new mode of making improvements or levying consequent assessments, further than that the 25 per centum limit is thereby omitted from the proceedings. The property owners propose to the city that if the city will make the improvement they will pay the expenses. This proposition binds no one; but on the strength of it the council declares by resolution the necessity of such improvement, and that confessedly binds no one, as under sec. 2304, notice of such resolution must be given, so that claims for damages may be filed, and it is only after the time has elapsed during which claims may be filed that the council may, under sec. 2316, determine whether it will proceed with the proposed improvement, and if it decides to proceed therewith, an ordinance for the purpose shall be passed. Clearly, the city cannot be bound to anything until under sec. 2316 it decides to proceed with the improvement, and this decision is expressed by the ordinance to improve, and therefore by this ordinance the city accepts the proposition of the property owner. Prior to that time the property owner is not bound. He may withdraw his name from the petition. He is only bound when the city accepts his proposition. The question of the rights of the property owner under a petition to improve was considered by Judge Maxwell in a very able opinion in the case of Black v. The City, decided in October, 1887, and he held that the petition was in the nature of a request, and an agreement that if the city would do certain things they in their turn would undertake to pay for the improvement in whole or in part, and that this proposition of the property owner was accepted on the part of the city by the passage of the ordinance to improve, and that at that point in the proceedings the property owner acquired vested rights. In the case of Hays v. Jones, 27 Ohio St., 218, which was a proceeding under the act authorizing the county commissioners to construct roads on the petition of a majority of resident land-owners, the court held that a land owner who had signed a petition could withdraw his name at any time before the improvement is finally ordered. The case of Grinnell v. Adams, 34 Ohio St., 44, only held that when jurisdiction was given to the county commissioners to act in the matter of laying out or altering a road by the filing of a proper petition, such jurisdiction could not be defeated by the petitioners remonstrating against the prayer of the petition being granted, and the court expressly say that they do not overrule the case of Hays v. Jones, supra. We think we are concluded by the holding of the Supreme Court in the Seasongood case in the determination of the controversy in the case at bar, and we therefore hold that the rights of the parties are governed by the act of March 11, 1887, and a decree will be entered accordingly. HUNT and MOORE, JJ., concurring. F. C. Ampt and J. C. Harper, for plaintiff. Hortsman, Galvin, Whittaker & Van Horn, City Solicitors, for defendant. Hamilton Common Pleas. 214 214 ALIMONY. [Hamilton Common Pleas, February, 1891.] ETTA C. HAND V. CHARLES E. HAND. Payment of final alimony in installments, awarded for the support of children after divorce, can be enforced and willful non-payment punished by proceedings in the nature of contempts. Plaintiff, Mrs, Hand, in 1888, filed a suit for divorce and alimony against her husband, but on final hearing both a divorce and alimony was refused, but the custody of the two minor children was given her and an allowance of six dollars per week for their maintenance awarded to her. In 1889, the husband filed a divorce suit against her, and divorce was granted to him without resistance on her part, the decree leaving the custody of the children and the allowance as fixed in the former suit. The installments of six dollars a week were paid for over a year, but are now some weeks in arrears, and the process of the court is asked against Mr. Hand in the nature of contempt to compel him to show why he does not pay the allowance or be attached. BATES, J. As to pendente lite alimony, willful non-payment of it is punishable as a contempt. Two carefully considered cases in our state so decide, Stewart v. Stewart, 10 Dec. Re., 662, and Kaderabek v. Kaderabek, 2 Circ. Dec., 236, and these are in line with the decisions elsewhere. But final alimony is a wholly different matter. One object of the pendente lite allowance is to enable the court to investigate the merits by giving the wife means to exhibit her side; it is made while the marriage relation still subsists and the husband is liable for necessaries, and the court has not finished and parted with its share of the case; it is an order, and not a judgment, Rev. Stat. secs. 5310, 5640. Hence it is evident that no light is thrown upon the right to contempt process for final alimony by its authorization for the preliminary allowance. By Rev. Stat. sec. 5310, a judgment is the final determination of rights. An order is a direction of the court not included in a judgment. By sec. 5640, disobedience of an order is a contempt. Now secs. 5696 and 5703 denominate the court's disposition of children after a divorce, an order; hence a literal construction of the divorce statutes would seem to authorize contempt proceedings in a case like this. But we may well hesitate in view first, of the constitutional prohibition against imprisonment for debt; second, of the fact that the contempt process is 2 discretionary power, difficult of review, involving personal liberty, making the court an aggrieved party and thus multiplying its difficulties to preserve a passionless and indifferent attitude, and hence should not be lightly resorted to, or extended into doubtful territory; third, of the fact that in ordinary cases for money, the court's functions are finished by the rendition of judgment, and the executive officers of the law, the sheriff, etc., take charge of its enforcement; that is to say, the court does not collect its own judgments. Now, to consider these objections in their order: I. I am satisfied that this claim is not a debt within the constitutional guaranty against imprisonment for debt. Debts are owing to indi |