Citation Numbers: 15 Ohio App. 405
Judges: Aelread, Eerneding, Ktjnkle
Filed Date: 11/16/1921
Status: Precedential
Modified Date: 7/20/2022
This action was brought by the traction company against the village of West Milton to recover a portion of the county aid given the village of West Milton in consideration of the improvement of Miami street.
The franchise under which the traction company operates its tracks upon Miami street contains the following clause:
“If at any time said village shall conclude to improve said street, by paving the same in any manner whatever, then said company shall pave all space within its tracks and turnouts, and eighteen (18)
“This provision shall apply to said company for any such improvements that may from time to time hereafter be made as aforesaid in paving of said streets.”
The village of West Milton determined to pave Miami street, and the traction company was assessed its share of the cost thereof according to the franchise-contract. Miami county desiring the improvement of the highway of which Miami street is a part contributed $21,000 to the village of West Milton as aid toward its improvement, which aid was furnished under authority of Section 6949, General Code, which reads as follows:
“The board of county commissioners may construct a proposed road improvement into, within or through a municipality, when the consent of the council of said municipality has been first obtained, and such consent shall be evidenced by the proper legislation of the council of said municipality entered upon its records, and said council may assume and pay such proportion of the cost and expense of that part of the proposed improvement within said municipality as may be agreed upon between said board of county commissioners and said council.”
The assessment-ordinance of the village is not made part of the petition, but is consistent with the claim of the village and may therefore be considered. Among other things it provides:
“All lands and lots, bounding and abutting upon the proposed improvements, which said lots and lands are hereby determined to be specially benefitted by the said improvement; and the cost of said improvement shall include the expense of the preliminary and other surveys, and the printing and publishing the notices, resolutions and ordinances required, and 'the serving of the said notices, the cost of construction, together with interest on bonds issued in anticipation of the collection of the deferred assessments, and all other necessary expenditures.”
The work of paving the street was completed, and assessments were made against the abutting property owners in accordance with Section 4 of the ordinance above quoted. The traction company brought this suit in injunction to restrain the collection of so much of the assessment against it as would be represented by a proportionate part of the county-aid fund.
This is a new question, no precedents are found, and it must, therefore, be resolved upon principle.
We cannot escape the conclusion that the liability of the traction company was one based on contract. When the village concluded to and did improve Miami street by paving, the contract of the traction
Judgment affirmed.