25

25

Opinion of the Court.

to assess the benefits which would accrue from such extension, that is, from the extension of a street where one had not theretofore existed, and not from an unimproved strip of land merely. See Washington R. & E. Co. v. Newman, 41 App. D. C., 439, 445; and cases cited. That is, the consideration for the assessment of the benefits was the extension of Lamont Street over the condemned strip.

2. Under the undisputed facts we think the District was under an obligation imposed by law to return, as for a failure of consideration, the assessment of benefits that had been paid by the plaintiff.

In Valentine v. City of St. Paul, 34 Minn. 446, 448, benefits had been assessed against the plaintiff's land by reason of the proposed opening and extension of a street, and he had been compelled to pay the amount of this assessment to redeem his land from sale. No part of the street having been opened, and the project for opening and extending it having been abandoned by the city, he was held entitled to recover the amount paid as upon a failure of the consideration for the assessment. The court said that "the effect of the abandonment by the city of the project of 'extending and opening' the proposed street for and on account of which, and which only, the assessment was made, is that the consideration of the assessment has wholly failed. So that the city stands in the position of holding in its treasury money collected from the plaintiff which it has no right in equity, good conscience, or common honesty to retain, because the purpose for which it was collected has been completely abandoned. In such circumstances no statute is required to impose upon the city a legal obligation to make restitution. An action lies as at common law for money had and received ... That the city is a municipal corporation does not distinguish it from a private person in this respect." To the same effect are McConville v. City of St.

Opinion of the Court.

281 U.S.

Paul, 75 Minn. 383, City of San Antonio v. Peters (Tex. Civ. App.,) 40 S. W. 827, City of San Antonio v. Walker (Tex. Civ. App.,) 56 S. W. 952, and Bradford v. City of Chicago, 25 Ill. 411, involving assessments for the opening, extension and widening of streets. And see Ward v. Love County, 253 U. S. 17, 24, and cases cited.

In two of these cases the abandonment of the proposed street improvement for which the benefits had been assessed, although not shown by any affirmative act on the part of the municipality, was established by circumstances; in one where there had been the lapse of a reasonable time during which the city had done nothing to carry on the improvement, and there was no claim in its answer or proof that it desired or ever intended so to do, McConville v. City of St. Paul, supra, 386; and in the other where there had been the lapse of a reasonable time during which the city had done nothing to carry out the improvement, and there was no proof that it had been prevented by any obstacle in the way thereof, Bradford v. City of Chicago, supra, 417.

Here, although the Commissioners had been instructed by Congress to condemn the strip of land for the extension of Lamont Street, more than fourteen years had elapsed during which the District had neither made this extension nor taken any step towards that end; it showed no obstacle which had prevented such extension; it had built a sidewalk and curb across the strip which constituted an obstruction to vehicular traffic; and it made no claim in its pleadings or proof that it desired or intended to make such extension at any future time. We think that these circumstances established, as a matter of reasonable and necessary inference, the fact that the District had abandoned the purpose of extending the street over the condemned strip; and that, this being so, for

the reasons well stated in the Valentine case, the District was properly required to return to the plaintiff, as for failure of consideration, the amount of the assessment that she had paid, which it had retained contrary to equity and good conscience and held, by implication of law, as money had and received to her use.

3. As the basis of the plaintiff's cause of action was the obligation imposed by law upon the District by reason of the failure of consideration for the assessment of benefits, it was one, we think, of which the Municipal Court had jurisdiction as a claim for debt arising out of an "implied " contract, not exceeding $300.5

4. Nor was the plaintiff's right of action barred by the statute of limitations of three years. The District contends that the plaintiff's claim accrued either when the verdict of the jury assessing benefits was confirmed in February, 1913, or when she paid the assessment in March, 1923. This contention entirely misconceives the nature of the plaintiff's cause of action, which is not based upon any illegality in the original assessment that would have given rise to any right of action when the benefits were either assessed or paid, but entirely upon the abandonment by the District of the proposed extension. See City of San Antonio v. Walker, supra, 953. The Court of Appeals held upon the evidence that such right of action did not accrue until January, 1926; and this is not controverted.

The judgment is

Affirmed.

5 District Code, § 9; Act of Feb. 17, 1909, 35 Stat. 623, c. 134. [Modified by Act of March 3, 1921, 41 Stat., pt. 1, p. 1310, enlarging jurisdictional amount to $1,000.]

UNITED STATES FIDELITY & GUARANTY COMPANY v. GUENTHER.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.

No. 179. Argued January 23, 1930.-Decided February 24, 1930.

1. A statute of Ohio prohibiting the employment of a child under 16 years of age to operate an automobile does not affect the validity of a municipal ordinance making it unlawful for any owner or bailee of a motor vehicle to permit a minor under the age of 18 years to operate the same upon the streets of the city. P. 36.

2. The term fixed by law" as used in a provision of an automobile insurance policy exempting the insurer from liability where the automobile is operated by a person under the age limit fixed by law, held to include valid municipal ordinances as well as statutes. P. 37.

3. A municipal ordinance making it unlawful for any owner or bailee of a motor vehicle to permit a minor under the age of 18 years to operate the same upon the streets of the city, held within the meaning of a provision of an automobile insurance policy exempting the insurer from liability where the automobile is being operated by any person "under the age limit fixed by law." P. 38. 31 F. (2d) 919, reversed.

CERTIORARI, 280 U. S. 540, to review a judgment against the insurer on an automobile insurance policy. The case was removed to the District Court from a state court upon the ground of diverse citizenship. The court below affirmed a recovery in the District Court.

Mr. Clinton M. Horn, with whom Mr. Fred J. Perkins was on the brief, for petitioner.

Mr. William M. Byrnes, with whom Messrs. James G. Bachman and Eugene Quigley were on the brief, for respondent.

MR. JUSTICE SANFORD delivered the opinion of the Court.

In February, 1925, the Fidelity & Guaranty Co. issued to Guenther, a resident of Cleveland, Ohio, an automobile insurance policy, insuring him against loss and expense arising from claims upon him for damages in consequence of any accident occurring within the United States or Canada by reason of the use of his automobile and resulting in bodily injuries to another person. The policy provided that it was subject to the express condition that it "shall not cover any liability of the assured while [the automobile is] being operated by any person under the age limit fixed by law or under the age of sixteen years in any event."

In May, while the policy was in force, the automobile was being operated, with Guenther's consent and permission, by a minor seventeen years of age upon the highways and streets of the city of Lakewood, Ohio, and collided with and inflicted personal injuries upon a third person. At that time there was in force in the city of Lakewood an ordinance which made it "unlawful for any owner, bailee, lessee or custodian of any motor vehicle to permit a minor under the age of 18 years to operate or run said motor vehicle upon public highways, streets or alleys in said City of Lakewood."

No statute of the State of Ohio made unlawful the operation of an automobile by minors over sixteen years

of age.

The injured person sued Guenther and recovered judgment. Guenther, having paid this judgment, brought an action against the Company on the insurance policy to recover the loss and expense incurred by him in the personal injury suit. This was removed to the Federal District Court for northern Ohio, where Guenther recovered judgment, which was affirmed by the Circuit Court of Appeals. 31 F. (2d) 919.