Citations
- 46 Ohio App. 73
Full opinion text
Ross, J.
This is a proceeding in error from the court of common pleas of Hamilton county, wherein the' court rendered judgment for the plaintiff, Sarah A. Shaffer, who sought to enjoin an assessment on the ground that there was no proper service upon her of the notice of the resolution determining the necessity to improve the street upon which her property abutted.
The evidence showed that the plaintiff was seventy-nine years of age, had lived in Cincinnati all her life, and maintained her residence at 2860 Harrison avenue for forty-six years; that she had never received any notice of the resolution or assessment, and knew nothing about it until her tax bills disclosed the fact that an assessment had been levied. The property involved on Pierson street, was unimproved. At the time the resolution was made she was temporarily living in Florida, as was her yearly winter custom. The keys of her house were in charge of her niece, who visited the home and residence of plaintiff frequently. The residence of the niece was located only a short distance from that of plaintiff. The name of plaintiff did not' appear in the city directory, or in the telephone directory.
The return of the notice server was as follows:
“The State of Ohio, Hamilton County, ss.
“I, Charles Wohlwender, being duly sworn, make oath and say that I served each of the following named persons, at the time and in the manner set forth after each name, with a notice of which the foregoing is a true copy; and the affiant further says that those names marked not found are non-residents of this county.
“Name Manner of Service Date
‘ ‘ Mary F. Srevens, Left at usual place of residence Feb. 24
“Sarah A. Shaffer, Not found. '
“Charles Wohlwender,
“Notice Server.
“Sworn to before me and subscribed in my presence this 19th day of April, A. D., 1927.
“Theodore B. Armstrong,
“Notary Public Hamilton County.”
On the stand he testified that he had looked in the directory and telephone book, and inquired of people living near the property, but had not learned anything as to the residence of plaintiff.
The plaintiff sought to show that the property sought to be assessed ran through to another street in the rear, upon which the plaintiff was then paying an assessment, and that the tax duplicates from which the notice server obtains the names of property owners on a proposed improvement would have shown that the property involved was listed on said tax du-. plicate in the name of the plaintiff, and that by reference to the records in his own office he would have found her address. The trial court excluded this line of evidence, stating:
“Q. You have in your office records of other city improvements and addresses? A. Well—
“The Court: Is it your idea, Mr. Price, that if this lady was not given the notice that the law requires, that that would not be the test, of whether she was given notice or not; would not be the legal test of the validity of this assessment?
“Now I have in mind it is purely a legal question whether service that was sent — and she says she did not get — is purely a legal question, as to whether that is sufficient. It does not make any difference what effort the notice server may have put forth to find the plaintiff; that is not involved in the issue before the Court. This other assessment that occurred years before, what has that to do with it?
“Mr. Price: That is my question, whether he used diligence in attempting to locate her.
“The Court: Does the statute say they mil be excused if they did use diligence or not? Now why get off of the question, I have in mind what they did; he says they could not find her, and she says she was in Florida.” •
Section 3818, General Code, provides as follows: “A notice of the passage of such resolution shall be served by the clerk of council, or an assistant, upon the owner of each piece of property to be assessed, in the manner provided by law for the service of summons in civil actions. If any such owners or persons are not residents of the county, or if it appears by the return in any case of the notice, that such owner can not be found, the notice shall be' published at least twice in a newspaper of general circulation within the corporation. Whether by service or publication, such notice shall be completed at least twenty days before the improvement is made or the assessment levied, and the return of the officer or person serving the notice, or a certified copy of the return shall be prima facie evidence of the service of the notice as herein required. ’ ’
It was evidently the conclusion of the court, from the language quoted in both briefs, that the effect of the language used in the statute was merely to put upon the city the additional burden of including resident owners not found, in the publication applying to nonresidents, and that service must be made upon residents either personally or at their residence.
We cannot agree with this conclusion. The language is plainly in the alternative: “Or if it appears * * * that such owner can not be found. ’ ’
We agree with the trial court that, if such language is to justify a perfunctory search merely, then such a service would be the taking of property without due process of law, and the section' would be unconstitutional. However, if the evidence shows an exhaustive and unfruitful search for the residence of a resident owner, thfe application of the alternative clause in the statute may properly and lawfully apply;
The plaintiff was not given an opportunity to show the facts which, if proved, would clearly have justified, and even required, the court to find that a proper search had not been made. If the return of the notice server is to be taken as- conclusive, when it may have been based upon a casual effort to find the residence of the resident owner, then again we would be compelled to say that the statute was unconstitutional for the reasons given before.
We are required to give such construction to the language used in the statute as will render it constitutional, if possible.
We conclude, therefore, that the language implies that the return must have been based upon an actual bona fide and completely exhaustive search; such as was not made in the instant case.
In the absence of the evidence offered, we cannot affirm the judgment of the court of common pleas, and must reverse the same, remanding the case for a new trial, in which the evidence tendered can- be presented.
Judgment reversed and cause remanded.
Hamilton, P. J., and Cushing, J., concur.