Butler v. Findlay (City) , 3 Ohio Law. Abs. 519 ( 1925 )

H. W. Butler et al filed their petition in the Hancock Common Pleas to enjoin special assessment of their abutting premises for the improvement of a section of a county road in the suburbs; within the corporate limits of the city of Findlay, said improvements being exclusively within municipal territory. The Common Pleas, after hearing the case on the petition, reduced the assessment to 33 1-2% of the value of the several properties assessed, hut refused to enjoin the entire special assessment. This judgment was affirmed by the Court of Appeals.

On motion to certify in the Supreme Court it is presented as to whether under 6949 to 6953 GC., (providing for improvements of state and county roads within municipal territory) the city contributing to the cost of such improvement, under its contract with the county commissioners, may assess the larger part of' the cost of its contribution upon the immediate abutting property, under 6950 GC., or whether cost of such contribution shall go on tax duplicate of the city and be borne by the municipality as a whole.

It is contention of Butler that special assessments of suburban properties to improve state and county roads as a means of ingress to and egress from the municipality, was not intended, or authorized by the state and county road improvement laws adopted in 1917 (107 OL. 107-8-9) and that under 6951-1 GC., the city under its contract is clearly required to hear the contribution.

Under 6950 and 6951 GC. contribution is to be met by special assessment. Under 6951-1 GC., “by municipality as a whole.” The question arises, can effect be given both of those inconsistent provisions of the same act? “The different sections and parts of sections of the same legislative act should, if possible, be so interpreted as to harmonize and give effect to each and all, but if there is an irreconcilable conflict, the later in position should prevail. Special provision of any legislative enactment must prevail over general provisions.” State ex v. Ind. Comm., 105 OS. 103.

It is contended, to attempt to discriminate against suburban abutting property owners upon a state or county road, in respect to the burden of its improvement, solely because some part of the same improvement extended beyond the corporation line, would be viola-tive of the constitution’s guarantees as there is no substantial basis for their classification.