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Opinion of the Court.

twelve landowners resident of the township ask such trustees in writing to make the application. In this event the township trustees become the sufficient petitioner, as the municipal corporation becomes a petitioner under Section 4483.

But we should not conclude that these are the only steps by which county commissioners obtain jurisdiction to locate and construct a ditch which may affect the lands within or without the corporate limits.

These sections provide who, in addition to the persons mentioned in Section 4450, may apply for a ditch and how the same may be signed and presented. If the municipal authorities do not desire to petition; if the township trustees are not requested in writing by at least twelve landowners of the township to petition the commissioners, of course these two classes of authorities can not become petitioners, but the persons mentioned in Section 4450 may still apply for a ditch which may affect the corporation or township.

The law giving jurisdiction to township trustees to locate and construct a township ditch contains no provision whereby a municipal corporation may present a petition, but under Section 4514, authorizing it to be signed by “one or more persons owning lands adjacent to the line of the proposed ditch," lot-owners in the village, if the lots are adjacent to the line, may join with landowners without the village in making the application to the trustees. It is a weak argument to say that, as in special instances and in special ways, a municipality or trustees of townships may petition the commissioners, if no one else does, trustees have

Syllabus.

no general jurisdiction because the same provisions are not found in the township ditch law whereby a village may petition the trustees. The lack of such provisions does not defeat jurisdiction, if the rules prescribed by the statute are observed and followed. This township ditch law seems complete of itself, and we are not to discount its authority on the ground that the county commissioners may hear other parties not named in it.

We are of opinion that the demurrer should have been overruled, and the circuit court erred in not so deciding

Judgment reversed. SUMMERS, C. J., SPEAR, DAVIS and SHAUCK, JJ., concur.

THE VILLAGE OF OAKWOOD V. STOECKLEIN.

Assessment of corner lots-Municipal code of October 22, 1902

Repeals Section 2264, Revised Statutes-And annuls former

rule of frontage-Entire lengthwise, frontage now assessed. Since the municipal code passed October 22, 1902, (96 Ohio

Laws, 20), repealed Section 2264, Revised Statutes and defined the following mode of assessing the costs and expenses of street improvements, “by the foot frontage of the property bounding and abutting upon the improvement," the rule of assessmert laid down in Haviland et al. v. City of Columbus et al., 50 Ohio St., 471, is abrogated, and municipalities are authorized to assess upon an entire lengthwise frontage of a lot abutting upon the improvement.

(No.1 2005-Decided January 18, 1910.)

ERROR to the Circuit Court of Montgomery county.

Opinion of the Court.

Mrs. Stoecklein brought suit in the court of common pleas against the village of Oakwood alleging that she is the owner of a lot located at the southwest corner of South avenue and Oakwood avenue in said village, its dimensions being 66.36 feet on South avenue and 133.20 feet on Oakwood avenue; that on July 20, 1908, the council of said village passed a resolution declaring it necessary to improve Oakwood avenue by paving with bricks along the lot of the plaintiff, the expense thereof to be assessed by the foot frontage of lots and lands bounding and abutting on the portion of the street so to be improved; that said improvement having been made said council passed another resolution making such assessment and assessing her lot for its entire lengthwise frontage upon said improvement, plaintiff claiming that in so far as said assessment exceeded the breadthwise frontage of the lot on South avenue it was excessive, and as to such excess she prayed that the collecting of the assessment be enjoined. A demurrer to this petition was overruled and an injunction granted in accordance with its prayer. On petition in error the circuit court affirmed the judgment.

Messrs. Rowe, Shuey, Matthews & James and Mr. W. M. Matthews, for plaintiff in error.

Messrs. Murphy, Elliff & Emanuel, for defendant in error.

SHAUCK, J. It is said that the conclusion reached by the courts below was thought to be justified by the decision of this court in Haviland

Opinion of the Court.

et al. v. City of Columbus et al., 50 Ohio St., 471. "That case was decided June 20, 1893. It involved an interpretation of Section 2264, Revised Statutes, as it was then in force. The third mode of assessing the costs and expenses of a street improvement which it defined was: “By the foot front of the property bounding and abutting upon the improvement.” That mode of assessing had been adopted by the city council in the case then under consideration. The view taken of the phrase quoted was, as expressed in the second proposition of the syllabus: “If a lot abuts lengthwise on the improvement, but fronts breadthwise on another street and not on the improvement, the lot should be deemed as fronting breadthwise on the improvement, and be assessed for the number of feet on the improvement that it would have in such case and no more."

Whatever may have been thought of the decision in that case as an interpretation of the statute, and however general may have been the belief that it imposed upon interior lots burdens which in justice should be borne by corner lots, the case was reconsidered and adhered to in the City of Toledo V. Sheill, 53 Ohio St., 447. In one of the opinions in that case it was suggested that the rule should be regarded as established so far as judicial decisions were concerned, and that if it was thought to operate unjustly it should be changed by the general assembly by an act operating prospectively. Accordingly by the uniform municipal code enacted October 22, 1902 (96 Ohio Laws, 20), Section 2264, Revised Statutes, was repealed and by Section 50 of that act, the third mode of assess

Opinion of the Court.

ing the costs and expenses of street improvements was defined as follows: "By the foot frontage of the property bounding and abutting upon the improvement. Since the general assembly under the circumstances changed the phraseology of the clause and employed language in making the change which indicates very clearly the purpose of the legislature to act upon the suggestion referred to and to change the rule established in the case which appears to have controlled the judgments under review, the judgment must be regarded as erroneous. The entire frontage abutting on the improvement is now, by the clear terms of the statute, the subject of assessment.

Judgments of the circuit and common pleas courts reversed and the original petition dismissed.

Judgments reversed.

SUMMERS, C. J., CREW, SPEAR and Davis, JJ.,

concur.

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