Fosdick v. City of Cincinnati , 97 Ohio App. 120 ( 1953 )

I find myself unable to concur in the conclusion of my associates.

It is said that plaintiff relies upon Section 5723.12, Revised Code (Section 5762, General Code). At no place in his amended petition does he make the vaguest reference to that section. He does not allege that the title had been forfeited for nonpayment of taxes. He describes his grantor as auditor of Hamilton County, but does not allege, either expressly or by implication, that he was acting as county auditor in making the sale. He does allege that the first tax bill after he became the owner included a sidewalk assessment and asserts that its collection should be enjoined "because it was a lien before property was sold and it exceeds statutory limitation allowed for assessments." That is the substance of this amended petition.

The fact that the assessment is a lien on real estate certainly furnishes no basis for an injunction against its collection. The only other basis is the general statement that the assessment exceeds the statutory limitation allowed for assessments. No fact is pleaded from which such a conclusion could be drawn. The amount of the assessment is not pleaded. The valuation of the property against which the assessment was levied is not pleaded. No failure to comply with statutory requirements in the manner of making the assessment is pleaded. Can it be said that such a pleading requires an answer from the defendants? Is it sufficient to withstand the assault of a general demurrer?

In the majority opinion it is stated that on a general demurrer the pleader is entitled to a liberal construction of his pleading. Of course that is the rule, but no construction, no matter how liberal, can supply that which is totally absent.

It is said that "sidewalk assessments" as alleged must be construed to mean installments that were due at the time the plaintiff acquired his title. He does not allege that. The reasons he gives are that the assessment is a lien and exceeds statutory limitations. All installments — both due and not due — are liens upon property. Furthermore, we are obliged to guess that the pleader has in mind Section 5723.12, Revised Code, before this distinction between due and not due assessments presents itself.

In the majority opinion it is said that the defendants are relying upon an exception and that a litigant who so relies must plead and prove it, and that there is no duty on the part of the pleader who relies upon the general rule to negative the exception. No authority is cited for that statement and my investigation convinces me that there is no such rule of pleading, particularly when statutory rights are asserted.

On this subject of pleading statutory exceptions, it is said in 41 American Jurisprudence, 355, Section 94:

"The courts frequently apply the rule that when an exception appears in (or, as it is sometimes expressed, is `incorporated in' or `contained in' or `forms a necessary part of') the enacting clause of a statute, the party relying upon the statute must allege facts showing that the case at hand does not fall within the exception."

An examination of Section 5723.12, Revised Code (Section 5762, General Code), makes it clear that the exception of installments not due is a part of the enacting clause. This whole enactment is in one paragraph. In this connection, I understand "clause" and "paragraph" to be synonymous. It is not a case of an exception engrafted by another statute, or even an exception in another section of the same statute.

For these reasons, I do not believe the rules of pleading relied upon in the majority opinion support the conclusion that this amended petition states a cause of action.

In King v. Cappeller, 42 Ohio St. 218, the court passed upon the sufficiency of a petition to enjoin the assessment and collection of a tax and the imposition of a lien under the Scott Law. What the court said at pages 221 and 222 concerning that petition is equally applicable to the amended petition in this case:

"Conceding that an auditor may, upon a proper petition, be restrained from placing an illegal assessment upon the special tax list, we cannot say from the vague, indefinite allegations of this petition, that we have any such case before us.

"It is the province of this court to decide causes, not abstract questions; and as the whole question here, in this view of the case, is whether the petition shows a case requiring the court to grant equitable relief by way of injunction, we are clear that it is our duty to declare that it presents no such case; for it is not one of defective, but wholly insufficient statement."

Bolton v. City of Cleveland, 35 Ohio St. 319, involved an action to enjoin an assessment. While there are many points of dissimilarity between that case and the case at bar, I think the following statement found on page 321 is pertinent: "There should have been some allegation bringing the case within the operation of the statute, if the plaintiff claimed the benefit of its provisions."

For these reasons, in my opinion, the judgment should be reversed and the cause remanded for further proceedings according to law.