This cause came into this court on appeal from the judgment of the common pleas court, and is submitted to the court upon the pleadings and agreed statement of facts-. The plaintiffs seek an injunction restraining the commissioners and tax-collecting officers of the county from collecting or attempting to collect assessments levied by the commissioners upon the respective lots of lands owned by said plaintiffs in said county, and beyond the termini of the improvement, to pay for which said levies were made.
It appears from the agreed statement of facts that on the, 8th day of May, 1907, the board of county commissioners ordered the improvement of that portion of a certain public highway in said county of Licking, known as the Johnstown and Sunbury road, extending from the county line of Delaware and Licking counties, southeasterly to the west corporation line of the village of Johnstown, in said county of Licking, by grading and covering the surface thereof with stone, and by authority of and in accordance with the provision of Section 4670-14 of the Revised Statutes of Ohio, and the question presented in this case involves the construction of that statute.
It appears further from the agreed statement of facts that the commissioners have levied an assessment against the lots and parcels of real estate lying within one mile of the southeasterly terminus of the improvement, and lying without the village of Johnstown, making no levy whatever upon the village of Johnstown or upon the lots or parcels of land therein situate, although all of said village is within one mile of said terminus.
It is also shown by the agreed statement of facts that if the commissioners have a right to levy a tax upon the real estate in the municipality of Johnstown, then the original petition praying for this improvement did not have the requisite number of signers therefor, and consequently the commissioners were without jurisdiction to proceed with said improvement or to levy said tax.
We are of the opinion that if this statute in question under which these proceedings were had authorized the commissioners to levy an assessment against lands lying within one mile of the terminus of said improvement, that it necessarily follows that the village of Johnstown and the property therein situated would be subject to such a levy. This, we think, clearly appears, not only from the general legislation on the subject of roads and highways and improvements thereof, but the adjudicated eases are, to our mind, all to that effect.
While the exact question was not before the court in the ease of Lewis v. Layland et al, 46 Ohio State, 663, yet the reasoning of the court in that case applies with equal force to this one.
■ On page 675, Judge Bradbury, announcing the opinion of the court, says:
“It is true that Section 2640 in very general terms gives to municipal councils the ‘care, supervision and control of all public highways, * * * within the corporation.’ The power conferred by this section is full and ample; but it contains no words directly excluding that conferred by the statute upon the county commissioners. If it has that effect, it amounts to a repeal of the latter statute by implication. Repeals of this kind are not-favored. ’ ’
Again, on the same page, he says:
“The Legislature, by the provisions of Section 2640, R. S., bestowed a very general control over the highways within municipal corporations, but at the same time they have preserved to the county commissioners a power to improve those public highways which are a part of the general road system of the county, though they may happen to lie partly within the limits of the municipality. ’ ’
As we understand the pleadings and the agreed statement of facts, the lands and parcels of land owned by the plaintiffs and those in interest with him, lie beyon this terminus of the improvement, and therefore from the conclusion we have reached would be entitled to an injunction, not only because the assessment is not uniform to the prejudice of plaintiff and those for whom he sues, but because the commissioners were without jurisdiction to order the improvement or to levy the assessment, if they are at all entitled to levy an assessment within one mile from the end of the improvement, as well as on the sides. So it could make no difference whatever in the disposition of this case before us whether the commissioners have such a right or have not such a right.
But there is another important question involved in this case which ought to be determined, and one that we are not so clear upon, and that is as to whether or not the commissioners have any right to levy an assessment upon the lots and parcels of land within one mile from the end of the improvenemt or whether the assessment should be confined to the sides. The legislation on this subject is very indefinite and uncertain, and is one that ought to go to the Supreme Court at an early date for an authoritative determination, because it’is of vital importance to the entire state. A majority of this- court, however, have reached the conclusion that the commissioners have ho such authority. If this section were standing alone we would have no hesitation in saying that they would have such authority, but in view of the other legislation on kindred subjects and the construction given thereto by the Supreme Court of this state, we are forced to a different conclusion.
Section 4786, which applies to one mile assessment pikes, provides, in so many words, that the assessment shall be levied “on real and personal property within one mile on each side of the free turnpike road.”
Section 4835, which applies to the. two mile assessment pikes provides:
“No lands shall be so assessed which do not lie within two miles of the proposed improvement, and the distance from either side, end, or terminus-of the road; and the lands that have been-assessed for the expense of any improvement made under the provisions of this chapter, shall not be re-assessed under subsequent proceedings for an extension of the same, unless- the prior assessment be not deemed proportioned to the whole benefit resulting to such lands.”
The language of both these sections in clear and unequivocal, and the Supreme Court of Ohio, in considering Section 4786, in the case of Lear v. Halstead, 41 Ohio State, page 566, says, on page 567:
“The provision in this- section which requires that extra taxes shall be levied on real and personal property within one mile on each side of the turnpike road, does not, we think, embrace lands within one mile as measured from the end of the road, but only as measured from either side of the road and between the termini of the same. The lands- therefore, situated beyond the terminus of the turnpike, and lying outside of the line drawn from the terminus at right angles with the last course of the road were not subject to taxation. The legislative intent seems plain. If it had been designed to extend the tax limits, so as to include territory and personal property beyond the end of the turnpike, the Legislature, it is presumed, would have made it manifest by appropriate language. It did not fail to do so in the act commonly known as the two mile improvement law, which provided that no lands should be assessed which did not lie within two miles of the proposed improvement, and that such distance of two miles might ‘be computed in any direction from either side, end or terminus of said road.’ ”
The section under consideration, to-wit, 4670-14, of the Revised Statutes, provides, “that when a majority of the resident owners of any real estate lying and being within one mile of any public road, shall present a petition, ’ ’ etc.
In view of the announcement made by the Supreme Court in the case of Lear v. Halstead, supra, “That if the Legislature had designed to extend the tax limits, so as to include territory and personal property beyond the end of the turnpike, the Legislature, it is presumed, would have made it manifest by appropriate language,” it appears to a majority of the court that the correct construction of this statute would require that the levy should be limited within one mile on each side of the improvement, and this construction seems to us to be the the only possible one, in view of the fact that there is one section which expressly provides that the taxing district shall include the property within two miles of the endj as well as the sides, and in view of the fact that the Legislature is presumed to have known the construction given by the Supreme Court in the 41st Ohio State, and to have known that that court said that if it is intended to extend the taxing district beyond the terminus it ought to use plain and appropriate words to do so.
Another argument in favor of this construction is that under the provisions of this section that the lands within a mile of the terminus of the road would be subject to a second assessment for the continuation of the improvement and in the only statute providing for the extension of this taxing district, to-wit, the two mile assessment statute, it is expressly provided that this shall not be done, unless it appear that the property has not paid its full share of the cost of the improvement, with reference to the benefits conferred. But we find no such provisions in this section before us, and the construction contended for by the defendant would necessarily leave this land subject to a second assessmentwithout regard to the amount paid on the first assessment, an altogether unfair distribution of burdens for ■ public improvements.
We are therefore of the opinion that the taxing district for this improvement must be confined to one mile on each side of the improvement, and within a line drawn at right angles with the termini thereof, and that being true the county commissioners had jurisdiction to order the improvement and to levy the assessment upon those lands, but had no authority to levy an assessment on the lands beyond the improvement, and as to these levies the defendants will be enjoined from collecting or attempting to collect the same.
Motion for new trial will be overruled and exceptions noted, and if counsel desire a finding of fact from the agreed statement of facts, they can prepare the same and file it, or they can use the agreed statement of facts used in this court for the purpose of prosecuting error to the Supreme Court.