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Commissioners of Mahoning County v. Railway Company.

of these sections, nor can the court, sua sponte say that any one of these roads or turnpikes enumerated in the foregoing sections is the equivalent of a street in a city. So that, unless the fact that the bridge was built under authority of the act of April 8, 1880, makes it a county bridge, and brings it within the category of bridges upon county roads, it is manifest that the sections quoted can give no authority to the commissioners to keep this bridge in repair, or recover for damages to it. That act simply authorizes the commissioners to construct this bridge. There is no provision giving authority to repair, nor is there any authority to maintain an action for injury to it. Had those subjects been in the legislative mind at the time of the enactment of the statute, and had it been the purpose of the assembly to confer that authority, it seems reasonable to assume that clear language to that effect would have been used.

But if we were able to say that Market street may be treated as an improved road, or a turnpike, or a county road, still the exceptions contained in both sections 860 and 4938, confining their application to bridges in "cities and villages not having the right to demand and receive any portion of the bridge. fund levied upon property within such corporations," would be fatal to a recovery in this case. We have, by statute, but two classes of cities both of which under section 2824 have the right to demand a portion of the bridge fund, and it follows that when this bridge is described as within the city of Youngstown, it is the equivalent of saying that it is within a city which may demand and receive a portion of the bridge fund, thus bringing it within the exceptions of the sections of the Revised Statutes referred to.

The purpose of the exception seems to be obvious. By section 2640, Revised Statutes, it is made the duty of the council to cause all bridges within the corporation to be kept open and in repair, and this requirement has no modification save as to those municipalities which cannot receive any portion of the bridge fund. In such, upon county roads, etc., the commissioners must keep the bridges in repair. The muncipality pays the whole of its tax raised for bridges into the county

Commissioners of Mahoning County v. Railway Company.

bridge fund, and it is but fair that the county should keep up the county bridges. The other class, having control of a part of the taxes raised for the purpose, may fairly be required to keep the bridges within their limits in repair.

Arguendo, it may be added that section 863 contemplates that the money recovered from those committing injuries to bridges will be expended by the commissioners in repairs to the injured bridge, but as control of bridges in this municipal corporation is confided to the corporate authorities, the commissioners, if they should recover in this case, would seem to lack authority to apply the moneys recovered to repairs upon this bridge. Railroad Co v. Commissioners, 35 Ohio St. 9.

Perry County v. Railroad Co., 43 Ohio St. 451, is cited as an authority sustaining the position of plaintiff in error. In that case a bridge upon a county road, within the limits of a village, was destroyed, and this court held that the board of commissioners of the county was the proper party to bring an action to reimburse the county for expense incured by the board in re-building the bridge. The case is so wholly different from the case at bar that no comment is deemed necessary.

Whether or not in this case the authorities of the city of Youngstown could maintain an action we are not called upon to discuss. It is not clear that they could, and the subject may well receive the attention of the general assembly.

The question made by the record is not as to a right to recover for trespass upon, or injury to, real estate, but simply, as stated at the outset, whether the commissioners can maintain an action for injuries to the bridge. We think they cannot.

Judgment affirmed.

Wewell v. City of Cincinnati-Anderson v. Same.

WEWELL v. CITY OF CINCINNATI.

ANDERSON v. CITY OF CINCINNATI.

Mmnicipal corporations-Sewer improvements—Assessments-Regularity of proceedings-Rev. Stats., secs. 2289, 2327, 2380.

1. The curative provisions of section 2289 and section 2327 of the Revised Statutes, extend to irregularities or defects in the estimate of cost and expenses, which the council may direct to be made, after a plan of sewerage for the corporation, or any part thereof, has been approved. 2. In a city of the first grade of the first class, a plan of sewerage for a sewer district was prepared by the assistant engineer in charge of sewers, who, in submitting the plan to the chief engineer, embodied with it an estimate in gross, of the cost and expenses of the improvement, and officially reported that the proposed sewers could be constructed without cost to the city. The plan, with the included estimate, was approved by the chief engineer, was submitted by him to the board of public works, and that body adopted and placed the same on file. The board of city commissioners transmitted to the council and recommended for adoption, a resolution to improve by sewerage certain designated streets, according to the plan on file, the expenses to be assessed per front foot on the abutting property, and certified to the contractor in payment for the work. In transmitting the resolution, the board of city commissioners reported to the council that, in making the improvement, there would be no expense to the city. Held: That the estimate which accompanied the plan, was not of such a character, as to render void an assessment to pay the cost and expenses of the improvement. 3. An assessment to pay for a sewer improvement, will not be made void by omitting, prior to the assessment, to construct a sewer in a street embraced in the plan, when it is found that such sewer cannot be constructed without grading the street to the established grade, for which no provision is made by ordinance, and when the omitted sewer would be a lateral, into which no other sewer would drain, or which would in no way affect the drainage of any other street.

4. The exemption, under section 2380 of the Revised Statutes, from assessment for the cost of a sewer improvement, is not limited to lots supplied with local drainage under a regular system of city sewerage; but lots that are completely drained by an extensive sewer which discharges into a river, which was constructed partly by the city and partly by private persons, which has been frequently repaired by the city, and into which the city has caused certain streets and the adjacent territory to be drained, are provided with local drainage within the meaning of the statute, and are thereby exempt from assessment.

(Decided November 22, 1887.)

Wewell v. City of Cincinnati--Anderson v. Same. ERROR to the Superior Court of Cincinnati.

The original actions were brought in the superior court of Cincinnati, by the city of Cincinnati, for the use of Frank Kirchner and Alfred B. Ashman, to enforce an assessment for the improvement, by sewering, of Eggelston Avenue and other streets in Sewerage Division No. 8, of the city of Cincinnati. At special term, the superior court held the assessment void, on the ground that no proposal or bid had been advertised or received for board sheeting. This decision was affirmed by the district court of Hamilton county, but was reversed by this court-see 43 Ohio St. 243-and the causes were all remanded for further proceedings. Upon the new trial, the superior court gave judgment for the city of Cincinnati, for the amount of the assessment, with interest and penalty, against all the lots, except a few which were held exempt on the ground that they were provided with local drainage. The decrees of the superior court in special term were affirmed by that court in general term.

To reverse such judgment of affirmance, William P. Anderson, of whose lands two lots were charged with the assessment and two exempted therefrom, filed his petition in error in this court; and in the same proceeding-consolidated therewith under No. 534-and to reverse the same judgment, a cross-petition was filed by the city of Cincinnati as against the Anchor White Lead Company, William P. Anderson, Catherine L. Anderson, and Thomas B. Paxton as assignee of Thomas B. Richards and others, whose lands were decreed to be exempt from the assessment; and also by Augustus Darr and Francis Darr, executor, et al., against whose lands the assessment was held to be valid and binding.

And to reverse the judgment so rendered at general term, Joseph Wewell and others also filed their petition in error in this court, with which were consolidated, under No. 535, the petitions in error of Sarah E. Gay and others, and of The Little Miami Railroad Company, whose lands were held liable to the assessment; and in this proceeding, and consolidated therewith, was filed the cross-petition of the city of Cincinnati as

Wewell v. City of Cincinnati-Anderson v. Same.

against J. C. Fiedeldey, Joseph J. Gest, John F. Hazen, Augustus S. Winslow, Walter Smith, Charles H. Kilgour, Frank A. Sudbeck and others, whose lands, it was adjudged, were not liable to the assessment.

The superior court in special term, in cases City of Cincinnati v. Anderson et al., and City of Cincinnati v. Wewell et al., being requested to state separately its conclusions of fact and of law, among other facts, found as follows:

"Prior to May 29, 1879, the proper authorities of the city of Cincinnati had duly declared it necessary to provide a system of sewerage and drainage for said city; said city had been duly divided into sewer districts; and all the property described in said petitions is within Sewerage Division No. 8, as thus districted. The city of Cincinnati caused said sewers to be constructed, and the work contracted for was completed and accepted, and the assessment sued on was levied under proceedings as hereinafter found and set forth.

"A plan of sewerage for Sewer Division No. 8 was approved by the city authorities April 11, 1878, and finally adopted April 28, 1878. Prior to said date, the assistant engineer in charge of sewers had made an estimate of the cost and expenses of improving said division in accordance with said plan; and in submitting the plan the said engineer stated the gross amount of the estimate as thus made by him at about $80,000; and also stated that on such estimate the improvement could be made without expense to the city. No other estimate of the cost of such improvement was ever submitted to the board of public works or board of city commissioners.

"On May 29th, 1879, the board of city commissioners of said city, transmitted to council the following report:

"OFFICE OF BOARD OF CITY COMMISSIONERS,

CINCINNATI, May 29, 1879.

"We report that it is necessary to improve Fifth, Sixth, Seventh, Eighth, Ninth, Court, Race, Vine, Walnut, Main, and Sycamore streets, Broadway, Eggleston avenue, and other streets and alleys of Sewerage Division No. 8, by sewering in

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