I agree with the foregoing opinion as to all assignments of error except the first and concur in the judgment.
The interpretation of the majority of the court of Sections 3682 and 3683, General Code, is desirable and practical from a procedural standpoint, but I can not find authority for such interpretation in the language of the applicable sections of the Code.
Section 9885-1, General Code, defining the requisite procedure to be followed by the plaintiff in its purpose *Page 15 to appropriate the land in question remands it to Sections 3681 to 3697, inclusive, General Code. The first use and the source of the meaning of "application," as found in the latter sections of the Code, is in Section 3681, General Code:
"Upon the passage of such ordinance [a resolution expressing an intent to appropriate land], the solicitor shall makeapplication to the Court of Common Pleas or to a judge in vacation, to the Probate Court, or to the insolvency court, in the county in which the land sought to be taken is located, which application shall describe as correctly as possible the land to be appropriated, the interest or estate to be taken, the object proposed, and the name of the owner of each lot or parcel thereof." (Emphasis ours.)
Section 3682, immediately following Section 3681, continues:
"Notice of the time and place of such application shall be given in the ordinary manner of serving legal process, to all owners or agents of owners resident of the state, whose place of residence is known, and to all others by publishing the substance of the application, with a statement of the time and place at which it is to be made, once a week for three weeks next preceding the time of the application in some newspaper of general circulation in the county."
Certainly the words, "such application," as used in Section 3682, General Code, refer to the "application" defined in Section 3681, General Code, and are one and the same instrument. To hold that "application," as used in Section 3682, General Code, refers to a hearing following the filing of the application with the clerk does violence to the express language of Section 3682, General Code, that notice shall be given of "such application."
There is nothing to indicate that the word, "application," in Section 3683, General Code, is used in any *Page 16 other sense than in the two sections immediately preceding it. This section provides for a determination by the court in which the application is filed that if due notice has been served five days before the time of application, or has been published, or that the notice has been waived, the court shall set a time for the assessment of compensation, etc.
The procedure outlined by these sections of the Code is somewhat awkward, but it may not be said that it cannot be followed. Notice before filing a legal action is not unknown to the law. For instance, in forcible entry and detainer actions, the notice to leave the premises must be served three days before the action is instituted.
In Section 3680, General Code, covering proceedings on passage of a resolution by council declaring intent to appropriate land provides for service on resident land owners affected by written notice "by a person designated for that purpose, and return made in the manner provided by law for the service of summons in civil actions." This notice would be given before any action to appropriate is instituted in court.
It will be noted that it is optional with the plaintiff that it make the application provided in Section 3681, General Code, to any one of three courts. So that it is not unusual that Section 3682, General Code, requires that the notice to be served on the land owners should state the place where the application is to be made and the time of filing the application which would necessarily be at least five days subsequent to the notice required by Section 3682, General Code. *Page 17