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REPORTS OF

CASES ARGUED AND DETERMINED

IN THE

SUPERIOR AND COMMON PLEAS COURTS

ASSESSMENTS-HIGHWAYS-INJUNCTION.

[Wayne Common Pleas, April Term, 1917.]

HENRY BITNER v. CHARLES FAHR, AUD. ET AL.

Assessments According to Frontage for Improved Roads, when Inequitable not According to Benefits.

Under Sec. 1208 G. C., as amended, May 8, 1913, 103 0. L. 449.

456, which requires the township trustees to apportion the amount to be paid by the owners of abutting property, for the improvement of highways therein referred to,' according to the benefits accruing to the owner of land so located, it is not sufficient to assess each tract of land according to its frontage

when such an assessment would be unjust and inequitable. 2. Imperative Duty of Township Trustees to Apportion Cost of im. provements when Roads Irregular in courses. Township trustees are required to exercise their judgment as to

the amount of benefits each tractor lot of land receives, and must apportion the amount to be assessed accordingly. Where the improved highway was established by the early settlers without regard to direction or section lines and because of its diagonal or irregular course abutting tracts of land are irregu.

lar in form and size this rule is imperative, 3. Injunction Allowed Against Assessments by Foot Frontage.

When the trustees refuse, or fail, to exercise their judgment,

and levy assessments according to the foot-front of the property, the court will enjoin their collection when grossly ex

cessive, unjust, and disproportionate to the benefits received. (Syllabus by the court.]

INJUNCTION.

Joseph 0. Fritz, for plaintiff,
Benton G. Hay, Pros. Atty., for defendants,
1 Dec. Vol. 28.

Wayne Common Pleas.

CRITCHFIELD, J.

The plaintiff filed his petition in this court against the county auditor, the county treasurer and the trustees of Plain township, in which he avers that he is the owner of about thirty1wo acres of land in said township abutting upon the Lincoln highway. That said Lincoln highway has been improved by paving the same with brick. That under Sec. 1208, as amended hy act 103 0. L. 456, the trustees levied an assessment against said tract of land for $352.20. He avers that this assessment was levied along with assessments against other lots and lands abutting upon said improvement, by the trustees, in proportion to the foot-front of the several tracts of lands. He further avers that the assessments were grossly unjust, excessive and inequitable and aks for an injunction to restrain the collection of said excessive assessments. The trustees of Plain township answer and say that said assessments were made in proportion to benefits and are just and equitable and not excessive.

It appears from the testimony on the trial that the trustees cave notice and held meetings as required by the law then in force, and at a meeting held on February 9, 1916 adopted a resolution in which it was provided that the several lots and lands abutting upon said improvement should be assessed in proportion to benefits and that the foot-front of the several tracts of land should be made the basis for computation, further resolving that benefits were in proportion in their judgment to the foot-front. But it appears from the evidence that in calculating the assessment it was made from the engineer's plat which gave the lineal frontage of the entire improvement and the lineal frontage of cach of the several tracts of land. It appears further that the Lincoln highway was established by the early settlers and the Westward migration in the early part of the nineteenth century. It was laid out on the route that appeared the most practicable, perhaps following an Indian trail. Its course was laid with total disregard to direction or section lines and bends and diagonals across the county, as do many other highways in Wayne county

The tract of land owned by this plaintiff contains about thirty-two acres. It is severed from the south part of the south

Bitner v. Fahr.

east quarter of Sec. three in said township by said highway. It has about twenty-two hundred feet frontage on said highway. It is a long and narrow tract with the longer side abutting upon the highway. It is used for general farming purposes and a place of residence. The plat of the entire improvement was in evidence. A plat showing the size and form of all the abutting properties was in evidence. Testimony of witnesses showed the improvements on the several tracts, and their several market values. Evidence was offered to show how these lands were bene. fited from which it appears that the principal benefits conferred were more advantageous market facilities and increased valuation. A part of the lands assessed were farm lands and it appears that the benefits were fairly equal to all these lands. A part of the property assessed were village lots in the unincorporated village of Jefferson. From the testimony it appears that this assessment is really an assessment by the foot-front. That with respect to the property of this plaintiff it is excessive and unjust in comparison with assessments levied against other lots and lands abutting upon this improvement. It is not sufficient for the trustees to adopt a basis of computation for an assessment of this character such as the foot frontage of the properties or any other arbitrary rule and adhere strictly to it. The statute requires that they exercise a judgment with reference to the benefits conferred upon each of the several tracts of land to be assessed, and apportion the assessment in proportion to those benefits. This is especially true where the highway improved is one which is laid out like the Lincoln highway and most of the highways in Wayne county. It diagonals and curves with the lay of the land in a general east and westward direction. There are many tracts of considerable size with comparative small frontage. There are other small tracts like the plaintiff's with a long frontage, and to impose a large assessment upon the small tract, and a small assessment upon the larger tract because of the length of the front is unjust and inequitable and not in accordance with the rule of the statute. The temporary injunction will therefore be made perpetual against the collection of the excessive portion, which the court finds to be $150.20.

Franklin Common Pleas.

CORPORATIONS-PLEADING.

(Franklin Common Pleas. February 15. 1917.)

INTER STATE VACCINE Co. v. ELMER E. REDMAN.

1. Provision Rendering Contracts by Foreign Corporation Failing to Register-Invalid Held not Applicable to Unilateral Contracts. Section 5508 G. C., invalidating every contract affecting the lia.

bility of a foreign corporation rendering it wholly void preventing suit thereon when such corporation fails to comply with the registration statutes, does not have reference to and make void unilateral contracts, those upon which there remains only the obligation of payment. On the contrary, it has refer.

ence to contracts on which citizens of this state may bring suit. 2. Invalidation of Contracts Affecting Foreign Corporations for Failure to comply with Registration Statutes. A contract affecting the liability of a foreign corporation may be

invalidated under the statute when its full terms give a riglit
to the foreign corporation to bring action thereon, in which
case the citizen of the state may claim that the contract
affects the liability of the corporation; hence, not having com-
plied with the registration laws it may not maintain its action,

its contract being rendered wholly void.
[Syllabus approved by the court.]
DEMURRER to answer.
0. II. Josier, for plaintiff.

C. P. JIcClelland, for defendant.
KINKEAD, J.

Plaintiff is a foreign corporation. It alleges compliance with Secs. 178 and 179 G. C., and that it has been qualified and authorized to do business in Ohio. It alleges that in July, 1915, it sold to the defendant f. o. b. Kansas City, Mo., a car load of hogs consisting of 187 in number and weighing 28,090 pounds, for which defendant agreed to pay eight cents per pound. It avers compliance of the contract by it, and seeks to recover the sum of $2,247.20 claimed to be due thereon.

Defendant sets up as his first defense the claim that the contract of sale was entered into and executed in the state of Ohio, and that both parties intended the same to be carried out and completed in this state; that at the time of entering into the contract plaintiff was not engaged in interstate commerce, and was not entirely nonresident, soliciting business hy correspondence and by traveling salesmen; but that it was a

a

Inter State Vaccine Co. v. Redman.

foreign corporation organized for profit, doing business and owning and using part of its capital within the state, etc. It is averred that it was doing business without having complied with the laws of this state, and that it had not procured from the secretary of state a certificate authorizing it to do business.

Plaintiff submits a demurrer to this defense.

Defendant claims that the transaction is within the penalty prescribed by Sec. 5508 G. C. while plaintiff seeks to avoid its effect by averring that by an oral contract it sold to defendant at Kansas City, Mo., a car load of hogs for which defendant agreed to pay the sum of eight cents per pound; that it loaded and shipped the hogs from Kansas City to the defendant at Columbus, Ohio.

Plaintiff avers that as a foreign corporation it complied with Secs. 178 and 179, which concedes that it is subject to such provisions, and admits that it had not complied therewith at the time the contract of sale was made.

It seeks to avoid the provisions of Sec. 5508 by stating facts which will make it appear that the contract was fully executed outside of Ohio, and that nothing remained but an obligation of payment or payment and delivery. Plaintiff relies upon Catlin & P. Co. v. Schuppert, 130 Wis. 642 (110 N. W. 818), where it was held that the words of a similar statute of that state containing the words, "affecting the personal liberty," were construed to exclude all unilateral contracts, like bills, potes, and contracts that were fully executed outside Wisconsin upon which there remains as obligations only payment, or payment and delivery to be made in that state. Such transactions were considered as constituting acts of commercial intercourse and hence, as between the parties an act of interstate commerce.

The contention of counsel for plaintiff is that a foreign corporation, subject to our registration laws, may carry on interstate transactions and interstate commerce without being subject to any penalty, and that the principle of the Wisconsin rule applies.

The dictum of Wisconsin decisions under a similar statute is that contracts affecting the personal liability of foreign corporations do not include all contracts for the breach of which the

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