It is contended by the city in this case that the provisions of Section 2380, which exempts from assessment for sewer purposes lots or lands which are provided with local drainage, is applicable only to main sewers and not to lateral or branch sewers. It has certainly been the generally accepted construction of this part of Section 2380 that it applied to all classes of sewers; but it is contended by the city that' in the recent case of Ford et al v. Toledo et al, 64 O. S., 92, it is held the provision 'applies only to main sewers.
George H. Kattenhorn and Theodore Horstman, for plaintiff. Charles W. Scott, for the city.It must be admitted that the decision may be read as so holding, and it was my first impression in reading the case that it did so hold, but a more careful study of the case leads me to a contrary conclusion.
I think when properly understood the court simply holds that this provision of Section 2380 applies to main sewers, but does not mean to hold that it applies to main sewers only. The question whether it applies to lateral or branch sewers was not raised in the cáse, and the court', therefore, is not to be presumed as expressing an opinion upon that question.
Nor can any sound reason be suggested for the adoption of a policy which would exempt land from assessments for sewer purposes when it was already provided with local drainage if it abutted upon a street in which a main sewer was constructed, but made it assessable if it -abutted upon a street in which a branch or lateral sewer was constructed.
By Section 2381 the same three methods of assessment which must be followed in constructing main sewers must also be followed in constructing branch sewers, viz.: (1) By the front foot; (2) According to valuation on the tax list; (3) In proportion to benefits.
In Section 2395 it is declared that council shall “assess and collect' the cost of such construction upon the lots and lands in such sub-main, or lateral, or branch sewer district, in all respects as directed in this subdivision for the assessment and collection of the cost of constructing main sewers;” and by Section 2382, if the assessment is upon the front foot basis, the cost to be assessed per front foot when the work includes both main and lateral sewers, is the same in each case.
Doubtless other sections of the statutes might be cited showing similarity in method of levying assessments for both main and lateral sewers, but the two sections just cited would seem to be sufficient.
As the method of assessment is the same, I see no reason to doubt that so important a provision as that a lot having local drainage shall be exempt from assessment applies to both eases.