author: PARKER, J.

text:
    ASSESSMENTS — CONSTITUTIONAL LAW-OFFICERS.
    [Lucas (6th) Circuit Court,
    March 4, 1905.]
    Hull, Haynes and Parker, JJ.
    Richard Adkins et al. v. Toledo (City) et al.
    1. Preliminary Cost of Work Pertaining to Municipal Improvement, Paid from General Fund, may be Included in Assessment, etc.
    The cost of the necessary preliminary work or action pertaining to a street improvement, such as the cost of advertising, serving notices, etc., paid by the municipality from its general fund, may be included in the assessment and collected from the owners of property specially benefited by the improvement, in order to reimburse the general fund, notwithstanding all such costs were proper charges which could enter into the aggregate charge to be assessed upon the properties benefited as part of the costs of the improvement, and no fund to pay such costs existed at the time the expenses were incurred.
    2. Assessment to Pay for Improvement Made under Statute Partly Unconstitutional not Enjoined, when.
    That part of original Sec. 2267 (repealed 96 O. L. 96; see Lan. R. L. 3612; B. 1536-221), which provided that no public improvement, except sidewalks and sewers, should be made by cities of the third grade of the first class until the majority of the owners of the property to be assessed therefor had ' petitioned the council for the improvement, etc., was legislation upon a subject of a general nature, and was unconstitutional, because it did not have uniform application throughout the state. Hence, where a street improvement was made in conformity with the requirements of the remaining constitutional provisions of the statute, by a municipality of the class and grade specially provided for in the unconstitutional part above referred to, an assessment to pay the costs thereof will not be enjoined merely because the procedure was not in accordance with the requirements of the unconstitutional part.
    3. Legislative Bodies may Reconsider Vote Taken as General Rule, etc.
    As a general rule, in the absence of any special rule upon the subject of the particular legislative body acting, a vote upon a reconsideration need not be taken either at the same or the next succeeding meeting, but may be taken at any time before rights have intervened in pursuance of the vote taken, or before the status quo has been changed.
    4. Council may Reconsider Action in Voting Down Resolution of Another Municipal Board, when.
    The action of the board of councilmen of a municipality in voting down a resolution adopted by the board of aldermen, does not prevent it from reconsidering its action and passing the resolution at its next regular meeting held several days after the one at which the resolution was defeated, where it does not appear that, in the meantime, the board of aldermen had reconsidered and annulled their action in adopting the resolution, or that rights have vested in pursuance of the first action taken by the hoard of councilmen. And this rule applies, notwithstanding the legislative authority of the municipality is vested in the two boards, and the concurrence of both is necessary to the adoption of a resolution or the passage of a law.
    Appeal from Lucas common pleas court.

      W. H. A. Read, for plaintiffs.
    U. G. -Denman and Frank G. Crane, for defendant in error:
    The petition was not necessary. Sections 2264 and 2267 Rev. Stat. as in force in 1899; Shoemaker v. Cincinnati, 68 Ohio St. 603 [68 N. E. Rep. 1]; Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194; 76 Am. St. Rep. 428]; Douglass v. Pike Co. 101 ü. S. 677 [25 L. Ed. 968]; See. 26, Art. 2 Ohio Const.
    As to the policy of the statute in the duty imposed upon municipalities to keep streets open and in repair. Original Sees. 2263, 2264, 2640-(repealed, 96 O. L. 96; see Lan. R. L. 3980, 3600, 3602, 3923; B. 1536-192, 1536-210, 1536-211, 1536-131); Lan. R. L. 3974 (R. S. 2680a; B. 1536-938).
    The petition was sufficient. Original Sec. 2267 (repealed 96 O. L.. 96; see Lan. R. L. 3612; B. 1536-221) ; Grinnell v. Adams, 34 Ohio St. 44; Columbus (City) v. Slyh, 44 Ohio St. 484 [8 N. E. Rep. 302]; Cincinnati (City) v. Davis, 58 Ohio St., 225 [50 N. E. Rep. 918].
    The board of council could reconsider its action and pass the resolution at its next regular meeting after the resolution had been once defeated. 1 Dillon, Munic. Corp. (4 ed.) Sec. 290, p. 366; Jersey City v. State, 30 N. J. Law (1 Vroom) 521; Bigelow v. Hillman, 37 Me. 52-Smith, Munic. Corp. Secs. 306, 307 and 311; Hough v.' Bridgeport (City), 57 Conn. 290 [18 Atl. Rep. 102]; Red v. Augusta (City Council), 25 Ga. 386; People v. Rochester (City), 5 Lans. (N. Y.) 11.
    As to what cost and expense may be assessed. Laning R. L. 3654 (R. S. 2284) ; McGlynn v. Todelo, 12 Circ. Dec. 15 (22 R. 34).
   PARKER, J.

This case comes into this court by appeal. It is an action brought by Richard Adkins and a large number of other persons, to enjoin assessments levied upon their property on account' of the paving of East Broadway in this city. It is charged that the proceedings on the part of the city were so irregular and so lacking in the necessary support of fact and-law as that the assessments are invalid. The principal-grounds of attack are:

First. That in the course of this legislation a certain resolution— which is a necessary foundation proceeding — after having been passed by the board of aldermen, was defeated by a vote of the board of councilmen. That thereafter the board of councilmen undertook to, and did, reconsider their action and passed the resolution, but that the resolution was not thereafter acted upon by the board of aldermen; and it is. urged that by reason of the defeat of the resolution by the board of eouncilmen, if the subsequent vote to reconsider and the vote passing the resolution, had any effect, it was only in the way of an initiatory proceeding which would amount to the introduction and passing of a new resolution by the board of eouncilmen, which would therefore require a repassing by the board of aldermen in order to effect its full adoption.

Second. It is also urged that, in order to give support to this proceeding, it was necessary that a petition asking for the improvement should be signed by a majority of those interested — those owning the property along the line of the proposed improvement — and that while there might have been a majority signing the petition which was filed in this case at the time It was filed and at the time it was acted upon by the board of aldermen, there had been such changes of ownership of the property between that time and the time that the board of eouncilmen took action upon the matter that a majority was not represented upon the petition; but, on the other hand, that a remonstrance had been filed which a majority had signed. And it is urged that a petition signed by a majority of those interested, must be on file at the time final action is taken by the legislative body, or at least at the time that final action is taken upon the preliminary resolution.

As to that claim, the averment is denied by the city, and it is insisted ■that a large number of these transfers that occurred between the time of the filing of the petition and the action thereon by the board of aider-men and the subsequent action by the board of eouncilmen were made for the sole purpose of having a majority of those apparently interested, sign the remonstrance and oppose the improvement; that these transfers were not bona fide, and that effect should not be given to them; that the signing of those receiving such conveyances, for this purpose, should hot be recognized.

We supposed that that question of fact had been threshed out upon the trial here, but it turns out since the trial that there has been some misapprehension about it and counsel may desire to be heard further upon it and perhaps introduce some evidence. The conclusion to which we have arrived makes that seem to us to be an entirely immaterial matter here; but if the parties interested shall deem it material, they may have a further inquiry into the matter, in order that a proper finding of fact may be made up upon that question as well as upon other questions involved; but, deeming it immaterial we do not consider it necessary to await such action, and we proceed to a determination of the case.

Third. It is also urged — and this is a matter which does not affeet the whole assessment, but only a part of it — that a part of the costs of the preliminary action upon this improvement, viz.: the costs of advertising, the cost of serving the notices, the cost of abstracting and numbering, the cost of inspecting and the cost of the assessment, amounting in all to $384.81, all pertaining to this improvement, all required by law, all necessary action, were paid out of the general funds of the city, a fund for this improvement not having been raised by the sale of bonds or otherwise, at the time this preliminary action was taken and this expense incurred; and while counsel do not dispute that under Lan. R. L. 3654 (R. S. 2284; B. 1536-262), these are all proper charges to enter into the sum that is to be assessed upon the property specially benefited, yet they say that, it having been paid from the general fund, it cannot now be collected from the parties specially benefited; that it may not be levied as an assessment even for the purpose of reimbursing the general fund. I will dispose of that matter first. We find that it is true that these are all proper charges under Sec. 2284 which are to enter into the sum of the charges to be assessed upon the properties benefited as a part of the costs of the improvement.

It would seem that it might be very inconvenient, if not impossible, to raise these funds in the manner that funds are to be raised for special improvements in time so as to pay these bills as they accrue. Before the work is entered upon under the contract the funds to pay the cost of the improvement must be in the treasury. These funds are ordinarily raised by the sale of bonds for the particular improvement, and the funds are set apart for that; but before this action is taken, and before the authorities or the legislature of the city has come to the point where they may properly take this action, expenses like these are incurred.

To. be sure the parties to whom payments are due for such services may be required to wait until the funds are raised and put into the treasury where they can be drawn upon, and we understand that it is conceded by counsel for the plaintiffs that if they should be required to do so they should then be paid from such fund; that such action would be regular and proper. But, because these matters were anticipated, because this money was practically borrowed from the general fund, they say that now the city is in a situation where it cannot reimburse the general fund. We are not cited to any authority which seems to us to be in point, or at least, to control. It seems to us that this claim lacks reason and equity for its support.

The burden is no greater for the persons who are required to pay. these expenses for this improvement, if the payment is made in this way than it would be if it were paid in what we conceive to be the regular way; and we know of no law that prevents a council from taking this action; or, if there is a law designed to prevent it we know of no principle which would justify the plaintiffs in insisting that they should be benefited by this irregularity — if it is an irregularity. We are cited by counsel for plaintiffs to the ease of Cin. L. & N. Ry. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229; 49 L. R. A. 566], and especially to what is said by Judge Burket in the course of his opinion at pages 474-5, and I will read that. Preliminary to reading that, I will read what was decided by the court, and all that was decided by the court, viz.: what is contained in the syllabus.

“1. Section 19, Art. 1 of the constitution is a limitation upon Sec. 6, Art. 13 as to the power of assessments.

“2. Compensation paid to a landowner for lands taken by appropriation proceedings to open a street, cannot be assessed back upon the lands of the owner remaining after such taking. Neither can the costs and expenses incurred in such proceedings be so assessed. Cleveland v. Wick, 18 Ohio St. 303, overruled.”

And in discussing provisions of the constitution which were drawn in question there, Judge Burket says as follows:

“Being such limitation all that is found in said Sec. 19 bearing upon the power of assessment must also be construed as a limitation upon that power; that is, the power of assessment in said Sec. 6 must be so used and administered as not to conflict with said Sec. 19, but must be subservient and subordinate thereto.
“The limitation is not only as to the amount of the assessment, which cannot exceed benefits, but it is also as to the purpose for which an assessment can be made. No assessment can be made to raise general revenue, because that must be raised by taxation under other provisions of the constitution, as has often been held by this court. And as assessments cannot be made to raise general revenue, no assessment can be made to replenish the general revenue in the treasury, or reimburse the treasury for general revenue which has been paid out. When payments have been made out of the general revenue fund, the treasury can only be replenished or reimbursed by taxation, or fees, and not by assessments. ’ ’

Now a reading of the case discloses that what the court had under consideration and what the learned judge had in mind in using this language was, a case where general revenue had been used for a purpose for which general revenue only might be used, and not a case where general revenue had been used for a purpose on account of which special assessments might be levied and funds raised. He had not under consideration a case where money had simply been borrowed from the general revenue to supply temporarily the place or purpose of a fund that might lawfully be raised by special assessment. He had under consideration a case where general revenue had been used to pay for a thing which should be paid for with and by the use of general revenue, and therefore, he says you cannot make a special assessment in the first instance to raise such revenue, neither may you accomplish the same thing through raising by special assessment revenue to reimburse the general fund, because it is a matter the expense of which must be paid from funds raised by general taxation.

And the case to which we are also cited in Dayton v. Bauman, 66 Ohio St. 379 [64 N. E. Rep. 433], is in harmony with this and goes no further.

We hold, notwithstanding the fact that these expenses were paid out of the general revenue fund and even though there may have been an irregular mode of procedure, that the parties to be benefited by these improvements are not thereby relieved from paying this part of the expenses and that they are not in a position to interfere with an effort of the city to reimburse the fund from which the money was temporarily borrowed.

We deem this question about the number of signatures to the petition and the remonstrance and these questions about the transfers of the ' property pending the proceedings as immaterial because, according to our view of the matter, no-petition was required. The statute relied upon is original Sec. 2267 (repealed 96 O. L. 96; see Lan. R. L. 3612; B. 1536-221), which was in force at the time these proceedings were going forward, and the part of the section requiring the petition however large the affirmative vote of the council may be, is special to the city of Toledo. The first part of the section, the part which is in substance the form of the law before this part special to the city of Toledo was added, reads as follows:

Section 2267. “No public improvement the cost or part of cost of which is to be especially assessed on the owner of adjacent property, and no order appointing assessors of damages, or confirming their report, shall be made without the concurrence of the council, and it shall be essential that two-thirds of the whole number of members elected to the council concur, unless two-thirds of the owners to be charged, petition in writing therefor, and in villages not situated in a county containing a city of the first class, no special assessments shall be made except for sidewalks and gutters, and main or trunk-line sewers, and such other sewers, as are provided with a good and sufficient outlet unless it first receive tbe assent in writing, of a majority of the owners to be charged therewith.”

So that it will be seen that where two-thirds of the whole number of persons elected to the council concur under that general provision of the statute (and the statute, before the amendment was applicable to all the cities of the state) no petition was required; and it is shown and conceded here that two-thirds of each body of the common council did concur in this legislation. The provision applicable to the city of, Toledo reads as follows:

“Provided that in cities of the third grade of the first class no public improvements (except sidewalks and sewers * * * ) the cost or part of the cost of which is to be assessed on the owners of adjacent property shall be made until the majority of the owners of the property to be assessed shall have petitioned to the common council asking for said improvement, and a statement of title showing the existing owners of said property shall have been filed with the city clerk, and until said petition shall have been approved by the city solicitor and his certificate endorsed thereon, the cost of procuring said statement to be taxed as part of the cost-of improvement against the property assessed therefor.”

Now that special provision made applicable to the city of Toledo' alone, is legislation upon a subject of a general nature, and it does not have uniform application throughout the state, and, under recent decisions of the Supreme Court of Ohio, it is clearly unconstitutional. The common council need not have invoked it, and it does not appear that the common council did invoke it or act under it. We think the council might lawfully ignore it, and, so far as appears in this record, the council did ignore it. If the proceedings are sustainable under the law without the use of this provision, we believe we are bound to sustain them, and that we may not defeat the action of the council by invoking an unconstitutional provision.

This provision of the statute is not attacked on the ground that it confers corporate power. It is well said under that head, that instead of conferring corporate power it seems to limit or attempt to limit somewhat the corporate power already conferred'by the general-law, —by the law applicable to all municipalities. It qualifies and restricts such power so that perhaps 'it could not be successfully attacked upon the ground that it is a special law conferring corporate power. But it is a special law upon a subject of a general nature and it does not have general operation throughout the state, and we find that with that part of the statute eliminated, ample authority in the council to proceed as it did proceed, by a two-thirds vote, to declare in favor of this resolution and proceed with all legislative action necessary in the premises. And it is evident that this provision special to Toledo is not of a character that it may be said that the legislature would not have passed the law with this provision absent. It is an excrescence that may be lopped off without harm to the remainder. We simply disregard the amendment and go back to the statute as it stood before the amendment added this provision.

The remaining question is, were the proceedings invalidated by the action of the councilmanie body in defeating this resolution in the first instance and afterwards reconsidering and passing it and proceeding with the work without requiring further action on the part of the alder-manic body ?

The preliminary resolution was passed by the board of aldermen on. May 22, 1899. It went over to the council and was voted down by the council on May 29, 1899. On June 12, 1899, the council voted to reconsider it, and upon the same day and at the same meeting it passed the resolution by the requisite vote. It appears that between May 29, when the resolution was defeated, and June 12, when it was reconsidered and passed, there was no meeting of the council; that this meeting on June 12 was the first meeting of the council succeeding the meeting of May 29.

Now with respect to the reconsideration of a vote taken by the council, the legislative bodies of the city have adopted a rule, which is rule No. 18, found in a book entitled, “Manual of the Common Council and the Municipal Government of the City of Toledo,” under the title, “Rules and Regulations for the Government of the Boards of Aldermen and Councilmen of the City of Toledo, T8981899,” which rule reads as follows:

“Rule XVIII. When a question has been taken it shall be in order for any member voting on the side which prevails to move a reconsideration thereof at the same or the succeeding meeting; or, if no regular meeting be held, then at the next meeting thereafter unless in the meantime the matter under consideration shall have become a law. ’ ’

That rule, as we understand it, does not go beyond the ordinary rules and settled practice and law upon this subject, but rather restricts and qualifies them. It is generally true that a motion for reconsideration must be made by a person voting on the side prevailing, but, under the authorities, there seem to be some exceptions even to that rule. As a general rule, in the absence of any special rule upon the subject of the particular legislative body acting, a vote upon a reconsideration, as we understand it, need not be at the same meeting, nor at the next succeeding meeting, but it may be taken at any time before rights have vested in pursuance of the vote taken, or before the status quo is changed, and it will be regular. And this rule provides that it does not apply if in the meantime the matter under consideration shall have become a law; which would be in consonance with the general rule that if some other body had acted whereby the matter had become a law, that it would not be competent for the body first acting to move a reconsideration to defeat such later action of another body. This rule seems to make it impossible for the same body which has made the matter a law to reconsider it. If, for instance, a law had originated with the aldermen and passed through that body and had gone ovér to the council and the council had voted to make it a law, under this rule the council could not reconsider that vote. But, however that may be, 'it is not a matter of very much interest here.

This resolution had not in the meantime become a law. The vote was taken at the next regular meeting which was held after the resolution was defeated. If, in the meantime the aldermanic body had taken up the resolution and defeated it, if they had reconsidered their action, if they had retreated after they had found out what had been done by the council, or perhaps even before the council had acted at all, it would present a different question; but the matter stood before the board of aldermen on June 12, precisely as it stood on May 29 — it had been passed by that vote, and so far as they were concerned they had not taken any further action; they had done all they could do towards the adoption of the resolution and they stood upon their action — and matters being, therefore, in statu qtio upon June 12, so far as action by that body was necessary and so far as the action of either body was concerned, and no rights of anybody having vested in the meantime in consequence of the action taken by the council on May 29, we cannot understand why the council might not at that time reconsider its action and pass the resolution. We believe it could and we hold that it could.

Eules upon this subject will be found laid down in Chap! 14 of Cushing’s Manual of Parliamentary Practice. The rule as' to the reconsideration of motions seems to have been one which originated in the United States and is peculiar to this country, or, at least it did not formerly obtain in England; and whether it does now, I am not prepared to say; but it has become very firmly established here. It is said, in See. 255:

“It has now come to be a common practice in all our deliberative assemblies, and may consequently be considered as a principle of the common parliamentary law of this country, to reconsider a vote already passed, whether affirmatively or negatively.
“For this purpose, a motion is made and seconded in the usual manner that such a vote be reconsidered; and, if this motion prevails, the matter stands before the assembly in precisely the same state and condition, and the same questions are to be put in relation to it as if the vote reconsidered had never been passed. Thus, if an amendment by inserting words, is moved and rejected, the same amendment cannot be moved again; but, the assembly may reconsider the vote by which it was rejected, and then the question will recur on the amendment, precisely as if the former vote had never been passed.
“It is usual in legislative bodies, to regulate by a special rule the time, manner, and by whom, a motion to reconsider may be made; thus, for example, that it shall be made .only on the same or a succeeding day, — by a member who voted with the majority, — or at a time when there are as many members present as there were when the vote was passed; but, where there is no special rule on the subject, a motion to reconsider must be considered in the same light as any other motion, and as subject to no other rules.”

And I read from Smith, Munic. Corp. Sec. 307:

“It is the undoubted right of corporate bodies, unless clearly restrained by legislative enactment, to reconsider a vote as often as they see fit, or to rescind the same, provided vested rights are not disturbed, up to the time when by a conclusive vote, accepted as such by itself, a determination has been reached. They may adopt rules as to the time when reconsideration may be moved; and it is not necessary to the validity of a resolution to reconsider that it should be moved by one who voted originally with the majority; and a board of aldermen which has indefinitely postponed action on a resolution of the common council can afterwards rescind that action and pass the resolution.”

There is more, in the succeeding section upon the same subject.

It is urged on behalf of plaintiffs that there is some difference where the legislative authority is vested in two tribunals, as here — a board of aldermen and a board of councilmen — and their concurrence is required for the adoption of a resolution or the passage of a law; but we cannot see that this is so; we cannot understand upon what principle it would be so, unless in the meantime — between the time that the action is taken and the reconsideration — the other body has taken some action in the premises or has done something with which such subsequent action is inconsistent.

The case of Hough v. Bridgeport (City), 57 Conn. 290 [18 Atl. Rep. 102], seems to be in point. I read from the syllabus:

“A resolution laying out the street having passed the lower house of the common council came to the board of aldermen. By law it was necessary to the validity of the lay-out that the aldermen should concur in passing it. They indefinitely postponed the resolution and at a later meeting rescinded that action and passed the resolution. Held to be a legal concurrence.”

And we think that other authorities cited in the brief are in point. We find no authority laying down a different rule based upon the circumstance that there are two bodies to act that must concur upon the resolution or action in question. Hence we believe and hold that the action of the council in the premises was valid; that it was not necessary to ask for the reconcurrence of the aldermanic body in order to legally proceed upon the resolution; and so holding, and there being no other fault found with this proceeding, and no fatal fault therein that we can discover, we hold that the action of the city authorities in the premises was legal and valid and that the assessments must stand. The petition of the plaintiffs will be dismissed, at their costs.

Hull and Haynes, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    SEWERS — ESTOPPEL—WATERS AND WATER COURSES— ASSESSMENTS.
    [Lucas (6th) Circuit Court,
    February 27, 1905.]
    Hull, Haynes anti Parker, JJ.
    Samuel Hildebrand v. Toledo (City) et al.
    1. Objection that Sewer is not Available to Certain Property not Sustained, when.
    An objection by an abutting property owner to a sewer assessment, based upon the ground that the sewer is not available to his lots, is not sustained where the proof shows that the lots for a distance of from fifteen to fifty feet back towards their rear, are on a level with the grade of the street in which the sewer is built, from which points they descend from forty to sixty feet to a river bounding them on the rear, and the sewer is from fifteen to seventeen feet below the surface of the street and it also appears that with respect to several of the lots the houses and improvements thereon are so built as to permit the carrying off of sewage even at cellar levels through such sewers.
    2. Petitioning for Sewer dofs not Estop Petitioner from Contesting Validity of Assessment, when.
    The mere fact that an abutting property owner petitioned for a sewer improvement, and stood by without objection or protest and saw it built, does not estop him from thereafter contesting the validity of the assessment against his property to pay the costs thereof, on the ground that his property is not specially benefited thereby.
    3. Failure to Prevent Pollution of Water does not Estop City from Building Sewer, etc.
    The fact that a municipality owning lands abutting on a stream has not taken wholly effective measures in all cases to prevent the pollution of water thereof which goes into its waterworks system, will not hinder or prevent it from taking measures, such as by building a sewer, to divert the sewage to another course; nor will such fact prevent the collection of an assessment, levied against the property specially benefited by such sewer, to pay the cost thereof.
    4. Right to Pollute Water Course not Part of Riparian Rights.
    The right to pollute the waters of a natural water course forms no part, of the riparian rights of the abutting owners; and, in order to prevent such pollution, it is not essential that a municipality, or other riparian owner who is affected thereby, should condemn any right which such abutting owner may have or claim in the water.
    5. Municipality Guilty of Polluting Stream not Estopped from Preventing Pollution by Others, etc.
    A municipal riparian owner is not estopped from exercising its right and power to prevent the pollution of a natural water course, simply, because it has been guilty of the same offense by emptying its sewage into the stream. Hence, the collection by a municipality of an assessment, to pay the cost of constructing a sewer to carry off sewage which otherwise would be drained into the stream, cannot be enjoined merely because the municipality had also emptied its sewage into the stream.
    6. Adequate Local Deainage must have Permanency of Structure and of Control, etc.
    Lots are not provided with adequate local drainage, such as will exempt them from paying their sbare of an assessment levied to pay the cost of a sewer improvement, unless the right exists to dispose of sewage as it is at the time being disposed of, and the right to so continue is one that cannot be interfered with; the present right must include not only the idea of permanency of structure, but also of control. Hence, a claim of adequate local drainage, based upon the right to allow sewage to drain into a natural water course running through a municipality, is not sustained, where such drainage will pollute the stream and create a nuisance, and imperil the health of other riparian owners.
    Appeal from Lucas common pleas court.
    C. W. Everett and M. D. Merrick, for plaintiff.
    U. G. Denman and F. D. Crane, for defendant.
   PARKER, J.

A large number of persons join here as plaintiffs, and they bring their action to obtain relief from assessments laid upon their lands and lots on account of a sewer in this city. The action was begun in the court of common pleas and is in this court upon appeal. Their lots and lands are described in the petition, and it is only necessary to say with respect to their location, in a general way, that they lie along the bank of the Maumee river in the upper part of the city of Toledo in the vicinity of where the waterworks standpipe and power house, etc., stand, extending from along in that vicinity up the river; and at about that point the water which is supplied to said city by an intake pipe, is taken from the Maumee river. These are all so-called “river lots;” they face upon Broadway and extend from Broadway back to the river, the owners of said lots having the ordinary riparian rights attaching to lots and lands along the river. The sewer on account of which their lots and lands are assessed, begins in Broadway and extends along the fronts of their lots until it connects with another sewer by which the sewage is carried in a northwesterly direction until it empties into Swan creek. By Swan creek it is brought down a distance of perhaps three miles or less, into the Maumeé river at a point three miles below the waterworks plant or power house. The sewer at the front of these lots is from sixteen to seventeen feet below the street grade. The greater part of each of these lots is below the street grade. The depth of the lots upon the street grade, that is to say at the same elevation as the street grade, varies from fifteen to fifty feet and it appears that all of the lots have parts that abut upon the street that have as great an elevation as the street grade. From these points — from fifteen to fifty feet back from the street — the lots descend from forty to sixty feet with more or less abruptness to the water, and the whole depth of each of the lots is from 150 to 250 feet.

No fault is found with the proceedings except in the matter of the laying of the assessments. No complaint is made of any irregularity in the proceedings affecting the validity of the assessments, but it is claimed that no part of , the costs of this sewer may be rightfully laid upon these river lots, for several reasons:

First. Because they have “sufficient natural drainage and sewei'age into said river,” and under the statute original Sec. 2380 (repealed 96 O. L. 96; see Lan. R. L. 3604; B. 1536-213; 96 O. L. 40, Sec. 53), where a lot has sufficient natural drainage, it cannot be assessed for artificial drainage.

Second. Because -the sewer is not available to these lots, it being laid at too high a level above these lots to make it possible for these lots to use it for the disposal of their drainage.

The attack is upon the assessment in toto. If any part may be sustained, it is not shown nor contended that the amounts levied are too large.

Disposing of the second claim, i. e., that the level of the sewer is laid too high to be available to these lots, the proof shows that the fronts of the lots, as I have said, on the street, for a distance of from fifteen to fifty feet back towards their rear, are on a level with the grade of the street; that from this point they descend to the river, so that it is apparent that these parts of the lots so on the level of the street, are from sixteen to seventeen feet above this sewer, and, therefore, they are in a situation so that they could use this sewer for sewage. In the case of many of these lots the houses and improvements upon them are built towards the fronts of the lots and on levels permitting of the carrying of sewage from closets, etc., even at cellar levels, into this sewer, and, therefore, they cannot escape all the burdens of the costs of this sewer on the ground that the sewer cannot be used for them; and, as before stated, if any part of the assessment may be upheld, it is not shown that the amounts levied are excessive; there is no claim of that kind made and no evidence submitted that would enable us to consider it if the claim were asserted; so that we find and hold that the plaintiffs have failed to sustain that ground of relief.

There remains the other ground, i. e., that they have and always have had, sufficient natural drainage or sewerage; and this they assert with respect not only to the parts of lots which lie on the side of the hill, but with respect to the parts that are at as high or higher levels than the street grade.

This allegation of fact the city denies. It is conceded by the city that the property lies so that it may be readily drained into the river and so that its sewage may be readily disposed of by emptying the same into the river; but the city insists that the rights, of the proprietors to thus dispose of their sewage is qualified by the rights of the city and the community and persons having riparian rights in and to the river and especially of the lower proprietors, to have the stream kept pure, and by the right and power of the city in the exercise of its police and governmental power to prevent the putting of anything impure into the river that may contaminate or render unwholesome the water supply of the city; and the city contends that the plaintiffs’ right to cast impurities into the stream, as thus qualified and subject to control and even prohibition, does not amount to adequate 'means or facilities for sewerage, within the purview of the statute.

And the city further says that in this particular instance the casting of sewage from these lots into the river will contaminate the water so near to the intake of the waterworks system whereby water is furnished to the residents of the city for drinking and culinary purposes, that such water will be rendered impure and unwholesome, and that part of the purpose and design of the city in diverting this sewage and other sewage that may originate on these lots and in that locality, to Swan creek and thence into the river, is to accomplish the sanitary result of keeping the water pure in the region of the waterworks intake.

The plaintiffs assert, in part in their petition (evidently in anticipation of this defense) and in part in their reply, that the drainage and sewage from their lots does not or would not pollute the water of the river so as to render it inimical to health or in any way injurious to the people using the water of the river for drinking or culinary purposes. They also aver in their petition:

‘ ‘ That the said council of said city are trying to prevent said landowners from using their natural and adequate sewerage and drainage, to wit, the Maumeé river, for the drainage of their said lands, and are trying to compel these plaintiffs to drain into Swan creek over a mile away, at a very large expense to plaintiffs, all on the ground and for the reason to preserve the purity of the water of said river for drinking and culinary purposes for the people of said city generally; that the public waterworks of said city located on said river takes water from said river a short distance below plaintiffs’ said property, and the said city of Toledo is seeking to prevent these plaintiffs from utilizing the natural drainage of their lots for the benefit of the public at large of said city.
“That the council of said city drain the sewers of said city into said river below said waterworks and thereby use said river for the outlet of its sewers, and by the construction of said sewer No. 858 the said council seeks to prevent these plaintiffs from using the natural, sufficient and adequate drainage of their lots and to compel them to pay for the useless and expensive sewer without any special benefits to the plaintiffs’ said lands.
“That it is one of the property rights of the owners of each of said lots and parcels of land bounding on said river, to drain his real estate into said river, and such right has never been condemned, acquired or taken away by the said city or otherwise. ’ ’

And also in their reply:

“Plaintiffs further say that the sewer described in plaintiffs’ petition and constructed in Broadway empties into the Plawley street sewer, which empties into Swan creek, which empties into the Maumee river about one mile below the public waterworks of said city; that the water in the Maumee river flows up or down said stream according to the direction of the winds; that when the winds are from the northeast, which is a considerable portion of the time, the water of said river flows through the said city southwesterly up stream past the mouth of Swan creek and all the sewers constructed by said city into said river and beyond the public waterworks and thereby carries the sewerage emptied into said Swan creek and said river by the sewers of the city including the said Hawley street sewer up past the .waterworks of said city, where the said waterworks takes water for the supply of the inhabitants of the city, and thereby the Broadway sewer pollutes the water of the said Maumee river, and these plaintiffs say that when plaintiff’s said property is drained and sewered into said Broadway sewer as constructed by the said city the sewerage therefrom ultimately empties into the Maumee river, and 'the water of said river will be affected the same as If plaintiffs’ lots were drained and sewered into said river direct. ’ ’

These allegations are denied by the city. Those averments in the petition are specifically denied, and those averments in the reply are denied under the law. Now the plaintiffs by these averments deny that they do or will pollute the water of the river.

Secondly, they assert as an absolute right their right to cast sewage into the river, even if the result shall be to pollute its waters, and that that right will endure until taken away from them by condemnation proceedings whereby they would recover compensation on account of the deprivation.

Thirdly, they seem to assert, as a sort of estoppel, or as something that renders the city in pari delicto, so that it cannot come into court with clean hands — só that it must first cast the beam out of its own eye before it may rightfully complain of the mote in plaintiffs’ eye — that the city is rendering the water of the river impure even at the waterworks intake, by emptying its sewers into the river at points lower down the river. This reminds one of the fable of the wolf that complained of the lamb, farther down the stream, that it was muddying the water; but the evidence gives it a slightly different aspect here.

. Before proceeding to discuss the facts established by the evidence upon these issues and the law applicable thereto, I will dispose of another matter.

It is alleged in the answer by the way of estoppel, that the plaintiffs petitioned for this sewer and stood by and saw it built and made no objection or protest though they must have known they would be called upon to help defray the expenses of its construction. That appears to be true, as to some of them at least, but we find nothing in that to estop them from insisting that they shall not be compelled to pay any part of the cost on the ground that they are not at all specially-benefited. They may well ask the city to make an improvement in their part of the city that may operate as a general improvement to that quarter of the city, without waiving their right to be exempt from any special assessment unless they receive a special benefit.

Now I shall give a little attention to the evidence upon these disputed questions, as to whether the plaintiffs are rendering the waters of the river impure at a point where it is likely to affect deleteriously the waters used for culinary purposes and drinking purposes by the city, and as to whether the city is offending in the same way or in the same degree. We have listened to the testimony of the people of the neighborhood who are unlearned with respect to the science of bacteriology, that has been brought forward here; men of ordinary information and judgment; men generally who were interested somewhat in the controversy; and they seem to think, and undoubtedly do think, and testify that there is, at times, such a setback of the currents of the river from downstream upstream, so to speak, as to bring to the waterworks intake all the impurities east from the sewage system of the city into the river lower down; and they also testify that the sewage that they empty into the river by their private drains is infinitesimal in comparison with the vast volume of sewage that is emptied in by the city lower down; and this they testify to- in support of their allegation with respect to the rendering of the waters impure; that the city is the greater offender and does not stand in an attitude where it can complain, or, indeed, enforce any sort of regulation which will prevent impurities from being east into the river by private proprietors.

It appears from this evidence and other evidence in the case, that from a point some distance above the waterworks intake down to the bay and thence to the lake, the water in the Maumee river and bay stands practically at a level. It has been described, and with propriety, we think, as a sort of estuary. Of course there is a current to the outlet at the lake — there must be — for all the waters that come from up the river find their way into the lake; and there is generally a very distinct current, especially about the center of the river. About the point where the waterworks powerhouse is situated, the standpipe, etc., there must be a double channel, the shallowest channel perhaps being that on the westerly side of the river and adjacent to these lots; and between that channel and the main or deeper channel are shallows and outlying islands. At times, when the winds are strong from the southwest, the waters in the river at this point and lower down, appear to be driven out into the lake so that the river falls below its normal level several feet, —perhaps four or five feet, — and at other times, when the wind sets in strong from the northeast and prevails for some hours, the water is driven back so that it not only reaches its normal level, but raises above that several feet. It is said that when this occurs — these winds from the northeast — there is a very perceptible current in the river upstream —the water flowing back. The fishermen who have made observations of this, testify to it, testify to the effect upon their boats, their nets, etc., their trot, lines, I think they call them. We are told by the gentlemen of scientific attainments who testified, that as a matter of fact this current is in the upper surface of the 'water — the upper levels, the upper third of the body of water; — that it is not so pronounced at the very surface as it is somewhat lower down, but that the lower two-thirds of the water is not much disturbed, and that, therefore, the matter in the river lower down than the waterworks intake, that which settles into or below this lower two-thirds of the water, does not carry upstream, and only the matter in the upper third of the water, flowing upon the surface, is carried upstream.

It seems that some of the matter upon the surface of this water that is carried upstream, appears at times to one looking at it and not making a careful analysis of it, as very obnoxious, so much so that one would not readily and willingly take it into his stomach, without some treatment at least; but the scientific men tell us that this is not as bad as it looks.

We know as a matter of common information, that we cannot judge of the wholesomeness of water, or the contrary, by its appearance; that sometimes muddy, roily, nauseating-looking water is comparatively harmless; whereas water that appears to the eye to be entirely pure and even sparkling, sometimes contains the most deadly poisons; and these men who have made a study of sewage and bacteriology — which enters into it to a great extent — say that the matter emptied into the river from the sewers, offensive matter, poisonous matter, the matter that would be injurious to the health of the people, settles to the bottom of the river, and that even where the winds, as in this instance, prevail from the northeast so as to carry the water up the stream, poisonous matter from the sewers is not to any appreicable degree, carried up to the waterworks intake.

This testimony relative to the effect of the sewage which is emptied into the river below the waterworks intake, stands uncontradicted; we must rely upon it; we cannot despise or lay aside the testimony of these men: They are learned in these matters. They are called in to assist and guide the court and their testimony is not disputed. Often, where expert testimony is given, other experts may be found to testify to an entirely contrary state of facts; but in this case experts were not called on behalf of the plaintiffs, and we are bound to say that this testimony should, in our judgment, prevail over that of the opinions of these men upstream who have formed their judgment from simply observing casually the appearance of the water. I say this with respect to the sewers emptied down the stream; and I should say that the testimony shows that sewers are emptied into the stream as alleged in plaintiff’s pleadings, by the city, at Swan creek and lower down, and one or two sewers nearer to the waterworks intake.

There is other testimony upon this subject to which we are bound to give weight and consideration — though it was a revelation to us— and that is, that less harm results from the large main sewers, especially where they traverse a considerable distance, even though they carry a large amount of sewage, than results from these small private drains emptying their sewage which originates close to the fresh water and is emptied directly into the fresh water. I cannot undertake to recite, or even state — except in the most general and unscientific way — what these gentlemen have testified to; but the effect of it is, that as this sewage flows along in the sewers before it reaches the fresh water, it becomes not exactly purified, but is rendered harmless in a degree; that the bacteria which are injurious to life and health are assailed and combated and destroyed by other bacteria which are not injurious to the life and health of persons, and that, if the sewage is carried far enough before it reaches the fresh water, these noninjurious bacteria wage upon the others a war of extermination and entirely destroy them unless fresh water is reached before their work is completed. But, if the injurious bacteria reach the fresh water without being thus destroyed, they may survive for a considerable length of time and be carried a considerable distance in the fresh water, where they receive oxygen, upon which they thrive. Instances are given of such bacteria being carried five and even ten miles in a stream of fresh water. On the other hand the sewage emptied from the houses directly into the river carries with it, without any destruction or mitigation, all of the disease breeding bacteria, and when they reach fresh water there they survive and thrive.

So the conclusion is drawn by these scientific men from these facts —which are testified to as facts — that even if this water from the city was pushed up by the winds from the northwest towards the intake at the waterworks, it would carry but little, if any, of the disease breeding bacteria or poisonous substance; whereas the sewage emptied into the river by these proprietors along the bank and originating close to the bank, is carried by the natural currents of the river down to the waterworks intake and there is taken into the waterworks system and ultimately into our systems, if we drink water.

Now that is the situation as it is disclosed to us — stated in a general and imperfect way — and as applicable to the issues here presented. Taking up these question presented in the order thus stated:

First. Does or will the sewage from these lots pollute the water of the river so as to make their use for drinking and culinary purposes inimical to the health of the people of the city?

. From what I have already stated it is apparent that we are led to the conclusion that we must answer this in the affirmative. It does not appear that there is a great deal of this sewage being emptied into the river above the waterworks intake just now; but the plaintiffs are asserting their right to continue to empty it; and, apparently, if this right is maintained, sewage of this character will continue to be emptied in, not only from these lots but from other lots all along up the river, in increasing volume, until the water will be rendered entirely unfit to be taken into our waterworks system. '

Second. Have the plaintiffs such right to drain sewage into the river as they assert and enjoy, without regard to consequences, until it is taken from them by appropriation proceedings? That is one of the rights which they assert here.

We are cited to the case of Blue v. Wentz, 54 Ohio St. 247 [43 N. E. Rep. 493], a ease which does not seem to give us any light upon this particular question nor to be of any especial aid to us. It lays down the general principles applicable to surface drainage, defining what may be called the dominant estate and the servient estate, showing the nature and extent of the rights of the dominant estate to flow its water onto and over the servient estate. That is not involved here, we think.

We are cited to, Gould, Waters and I read from Sec. 544:

“But where perceptible pollution is shown to the damage of the plaintiff, an injunction will be granted to prevent its continuance, al-' though the damage may be merely nominal. * * # A corruption of water will be enjoined if causing injury to the plaintiff in any rightful use of the water, as by rendering it unfit for manufacturing purposes, or for domestic uses, or for the drink of cattle, or for fish to live in, or when it impairs the health of those in the community. So the accumulation of corrupting deposits in a stream, the pollution of a canal or ditch, the discharge into a stream of heated water, or of the okal of abattoirs, or of sawdust from a mill, will be prevented by injunction. And the fact that others also pollute the stream, and that the pollution caused by the defendant is an inconsiderable part of the whole corruption is no bar to' an injunction. If the defendant has a right to discharge corrupting matter into the stream to a certain extent, he may bé enjoined from polluting the stream beyond his right; but the plaintiff of course must show that there has been such an increase. The same rules apply to the corruption of navigable or tidal waters as to private streams.”

Mansfield (City) v. Balliett, 65 Ohio St. 451 [63 N. E. Rep. 86; 58 L. R. A. 628], is cited to us. That case is so radically different from this that it may be said to stand in direct opposition, or to show the opposite side of the shield, for there the municipality was corrupting the waters of a stream and the private proprietor- was insisting that he had a right to have the waters come down to him pure and uncorrupted and that that right could not be taken away from him by the city by the pollution of the waters unless they first condemned his right to have the waters come to him pure and uncorrupted. That right was sustained in favor of the plaintiff. I need, not stop to consider the case farther. The claim here on the other hand, seems to be, that the right to pollute the waters is a part of the riparian right of these proprietors, that is to say, — if we are-to give heed to what we regard as established by the evidence here, i. e., that they are polluting this water; though perhaps it is hardly fair to counsel to say that they undertake to maintain this position, because their claim is, that they are not polluting the waters. But since we find that they are doing so, we may say— that the right to pollute the water is no part of their riparian right, and to prevent them from polluting the water it is not necessary for the city, nor for anybody else, to condemn any right that they may have in the waters. Therefore, this question as to their right, we answer in the negative.

Third. Does the fact that the city may not have taken wholly effective measures in all cases to prevent the pollution of such waters as go into the waterworks system, hinder or prevent them from taking such measures as they have taken in this instance to divert this sewage to Swan creek, or from enforcing the assessment for such sewer ?

We think not. In the first place it should be borne in mind that the evidence discloses that the' harm that may result from the sewer emptying lower down is trifling as compared with that resulting from such pollution of the waters above the intake'. Also that if plaintiffs have the right asserted, the same right inheres in the proprietors of all property lying on and along the river above the waterworks intake, so that the utter destruction of the stream as a source of water supply may result, unless the city shall condemn and extinguish the right of the proprietors to pollute the stream, and this, we have already said, the city is not required to do.

It is said that the city has no right to pollute the stream. But this is rather aside from the question that we have to consider here, we think. I read from Gould, Waters See. 545, upon that subject:

“The pollution of streams by municipalities and public bodies in charge of sewage and drainage has occasioned frequent exercise of the preventive powers of equity. Upon principle a public body has no more right at common law than a private person. Its duty to prevent public nuisance by taking care of the sewage or drainage of a district gives it no right to create another nuisance by the pollution of a stream. If special powers have been granted to it by statute for the performance of a given object, it is bound to act strictly within its powers. If it exercises such powers so as to injure the property of individuals, it is responsible for the injury as a tort, unless the act done was strictly necessary for the performance of the object for which the powers were granted; and in such case the remedy of the individual is under the compensation clauses of the act, or, in America, usually under the provisions for exercising the power of eminent domain. Any pollution of a stream by a public body, in taking care of sewage, is therefore a nuisance unless expressly authorized, and is liable to injunction.”

To acquire the right to pollute waters condemnation proceedings are appropriate and necessary. But this violation of the law by the city in this respect does not deprive it of its power to mitigate the evil; that is, assuming that it has violated the law by emptying its sewage lower down. It is not necessary that the city shall undo or correct all that it may have done or permitted as a public agency in the matter of drainage deleteriously affecting the waters of the river either above or below the intake before it can begin to exercise the power vested in it to so plan and provide for the disposal of sewage as to keep the water supply of the city pure and wholesome, or comparatively so: Any blunder that it may have made in this respect does not divest it of jurisdiction or leave it shorn of its power. Were it not so its blunders, if any, might forever prevent it from improving sanitary conditions. The case is not that of a discrimination in the exercise of police regulations, like that in the case of Sipe v. Murphy, 49 Ohio St. 536 [31 N. E. Rep. 884; 17 L. R. A. 184], to which we have been cited.

This attempt to prevent the discharge of sewage into the river above the intake in pursuance of the authority found in Lan. R. L. 3709 (R. S. 2433; B. 1536-544) is of course wholly aside from and independent of the question whether both plaintiffs and the city may not have violated Lan. R. L. 3709 (R. S. 2433; B. 1536-544), especially as amended April 20, 1904, since it was so amended. Whether they have done so or not, either or both of them, does not touch the question of the validity of this assessment laid' to cover the expense of a sanitary measure adopted before the amendment of this statute. We conclude that the collection of the assessment cannot be prevented on this ground.

The remaining question — which is the primary question — is: Have the plaintiffs adequate drainage, and had they such drainage before this sewer was built? The answers made to the questions above stated, at the same time, in a measure, answer this. The plaintiffs had but a qualified right to discharge sewage into the river. The city has a right to prevent the discharge of sewage from their lots into the river directly, and has the right to divert it into Swan creek, and so into the river lower down. As said by the superior court of Cincinnati in Frey v. Millikin, 15 Dec. 122, 123:

“ ‘Adequate drainage for the usual purposes of sewerage’ required to ‘work an exemption for the land from the assessment’ * * * includes not only the idea of permanency of physical structure, as intimated by the court * * * but of control.”

They must not only have the means and facilities for disposition of their drainage, but they must have a right to dispose of it as they are disposing of it, and the right to continue to do so, and a right that cannot be interfered with by the city, and that right we think they do not possess.

From Ford v. Toledo, 64 Ohio St. 92, 94 [59 N. E. Rep. 779], a case which went up from this court, I quote a single remark which indicates the opinion of the Supreme Court upon this subject. This was a case which arose in the northwestern part of this city where an outlet of a local sewer was being carried across some low lands and in some places was carried over the surface of the ground. The bottom of the sewer, in places, was higher than the lands, and yet an assessment for local drainage was sustained by this court with respect to those lands which were lying lower than the sewer. Manifestly in such ease it could not be assessed so heavily as lands more favorably situated with respect to the sewer; but this assessment was sustained by.this court and by the Supreme Court. In this case the parties' undertook to escape from the burden of the cost of the sewer, insisting that they had sewerage facilities; that they could drain into Ten Mile creek, and possibly that was so; but we held that that was not sufficient, and made application of the principles that I have already stated.

This is the language of the judge delivering the opinion in the Supreme Court, upon that subject, page 99:

"The drainage of sewage into an Open ravine in a city would be inimical to public health, and can hardly be considered such local drainage as the statute contemplates. ’ ’

In the case of Stanley v. Cincinnati, 13 Dec. 223, a case decided by the superior court of Cincinnati, in the fifth clause of the syllabus, the same language is used:

"Drainage of sewage into an open ravine in a city is inimical to the public health and cannot be considered such local drainage as the statute contemplates. ’ ’

In the case of Wilson v. Cincinnati, 7 Dec. 242 (5 N. P. 68 and 70), it was said with respect to a situation where the outlet might have been cut off by a private proprietor of the land and where the city perhaps might have had a right to interfere, page 244:

"But it is admitted that the old sewer begins and ends on private property; and therefore as it is subject to be closed up at any time, and has in fact no proper outlet, we think that it does not satisfy the requirements of the statute, and plaintiffs cannot claim exémption thereby. ” - ...

That was also a decision of the superior court of Cincinnati.

These are all the expressions of opinion we find on the part of any courts as to this particular provision of the statute; but-we think they are quite sufficient to warrant us in saying with respect to this case that these proprietors of these lots have no such right to permanently empty their sewage into this stream, the Maumee river, at the places where their lots touch the river, as exempts them from the cost of a sewer like this — intended to convey the sewage to a point where it may be harmless. We say this qualified right to drain into the river, which does not include the privilege of-polluting the stream so as to create a nuisance, and so as to imperil the health of the people who get their water supply from the river below this point, does not amount to sufficient drainage under the statute or to opportunity for drainage that will exempt plaintiff’s property from this assessment. This sewer specially benefits their property because it affords them the only feasible and lawful means of sewage disposal from their lots, and it is available for at least so much of their lots as lie' near to or above the level of the grade of the street. What shall be done with their sewage that cannot be conducted into this sewer, we are not called upon to say. Presumably they are not assessed on the theory that this sewer affords a means of disposal thereof. One thing seems clear: that they cannot lawfully put it into the river until it is sterilized and rendered harmless, and they should not be permitted to do so.

There is another case which throws some light upon the question and to which I will refer, a decision by the United' States circuit court for the southern district of Ohio, Cleneay v. Norwood (Vil.), 14 O. F. D. 469. In that ease the parties were undertaking to escape the burden of a sewer assessment on several grounds, and one ground was, that the sewer did not'have a proper outlet, that the outlet that was given was one that might injure the health of the community. In discussing that matter, Judge Thompson says, page 472:

“It is claimed, however, in the bill that this sewage system has not a proper outlet ‘and the complainants have as yet no sewers, in fact, to drain their said lots and lands,’ and consequently have not been benefited by the improvement, but in the stating part of the bill it is alleged upon information and belief:
“ ‘That said sewerage system consists of a large main sewer, into which various smaller sewers, known as laterals or branches, drain, and ■that the said main sewer, which is the only outlet to the entire system, empties into a small stream, which is not a river or other proper place as required by Sec. 2370 Rev. Stat. of Ohio, and which stream is mostly stagnant during the larger part of the dry or summer season, and in which at no time is the volume of water or the current sufficient to carry off the sewage. This stream is known as “Duck, creek,” * * * ’
“Original Sec. 2370 (repealed 96 O. L. 96; see Lan. R. L. 3633; B. 1536-241), provides as follows:
“ ‘The plan so devised shall, in the discretion of the council, be formed with the view of the division of,the corporation into as many sewer districts as may be deemed necessary for securing efficient drainage and sewerage; each of the districts shall be designated by name and number, and consist of one or more main or principal sewers, with the necessary branches and connections, the main or principal sewers having their outlet in a river or other proper place; and the districts shall be so arranged as to be independent of each other so far as practicable. ’
“By the express terms of this section the determination of what is a ‘proper place’ is confided to the discretion of the council and the lot owners are bound by its action. It is not shown that there is no outlet or proper place, but only .that Duck creek, into which the main s'ewer empties, ‘is mostly stagnant during the larger part of the dry or summer season, and in which at no time is the volume of water or the current sufficient to carry off the sewerage. ’
“Manifestly, in the opinion of the complainants, the outlet is insufficient, but it is not stated as a fact that Duck creek fails to furnish any outlet for the sewer. The language, ‘and at no time is the volume of water or the current sufficient to carry off the sewerage,’ in the connection in which it is used, means that it does not carry off all the sewerage, not that it does not carry off any of the sewerage. If it were a fact that the creek was insufficient to carry off any or a large part of the sewerage, unequivocal and explicit language would have been used in stating the fact.
“The bill also calls attention to certain statutes enacted by the general assembly of the state of Ohio in the exercise of the police power prohibiting the pollution of streams, etc., and prescribing penalties for the violation thereof. The village or its officers and agents may be liable for the violation of these statutes, but that fact affords no ground for setting aside the assessment.”

And that I quote with more especial reference to the claim that these people should be relieved because the city is emptying its sewerage into Swan creek and thence into the river. Now what we might feel called upon to do in a case that we might suppose, of the city emptying its sewage by some system directly into this river at this same point in the manner in which it is emptied there by the plaintiffs, we are not called upon to say. It might present a ease which would require different action upon our part, but this, as we view it, is a very different case from that.

Our judgment is, that the petition shall be dismissed and judgment will go against the plaintiffs for costs.

Hull and Haynes, JJ., concur.


author: WINCH, J.

text:
    NEW TRIAL — ATTACHMENT—APPEAL—BILLS OF EXCEPTIONS.
    [Cuyahoga (8th) Circuit Court,
    February 20, 1905.]
    Marvin, Winch and Henry, JJ.
    J. B. Cecill et al. v. John Grant et al.
    1. Filing Motion foe New Teial to Motion Dissolving Attachment, a Nullity.
    There is no provision of law authorizing the filing of a motion for a new . trial, after a ruling on a motion to dissolve an attachment; hence the filing of such motion for a new trial is a nullity and does not operate to extend the time within which a bill of exceptions to such ruling may be filed.

      2. Provision of Statute Authorizing Appeal by Defendant to Dissolve Attachment is not Void.
    That part of Lan. R. L. 10071 (R. S. 6494) which, authorizes the defendant in attachment to appeal his motion to dissolve the attachment to the common pleas court, when the same is overruled by the justice of the peace, is not void because the right of appeal is not given the plaintiff in attachment, when such motion is sustained by the justice.
    Error to Cuyahoga common pleas court.
    Smith & Taft, for plaintiffs in error.
    Pinney & Warner, for defendants in error:
    Laning R. L. 8821 (R. S. 5305) provides for what causes a new trial may be granted. Laning R. L. 8643 (R. S. 5128) defines an issue of fact.
    On a motion to discharge an attachment, there is no issue of fact, within the meaning of the statutes; therefore, a motion for a new trial is not authorized by law. Stone v. Savings & Bank. Co. 4 Circ. Dee. 354 (8 R. 636) ; Thomas v. Mangus, 25 O. C. C. 649; Minnear v. Hollaway, 56 Ohio St. 148 [46 N. E. Rep. 636].
    A bill of exceptions must be filed within forty days after the rendition of the judgment; and not within forty days after the overruling of the motion for a new trial. Same authorities.
    Whatever belongs merely to the remedy, may be changed according to the will of the state, provided the alteration does not affect the obligation of the contract. Cooley, Const. Lim. 406 to 415.
   WINCH, J.

Plaintiffs brought their action against defendants before a justice of the peace, to recover on a claim alleged to be for necessaries. An order of attachment was issued in the case on the affidavit of plaintiffs that the claim was for necessaries contracted for since April 26, 1898. Thereupon defendants moved the justice to discharge the attachment on the ground, that the facts stated in the affidavit were not true and that the property sought to be attached was exempt from execution and attachment. This motion was overruled and thereupon defendants appealed it to the common pleas court.

In the common pleas court plaintiffs first filed a motion to dismiss the appeal, on the ground that the statute under which the appeal was attempted is unconstitutional and void. This motion was overruled. As to the subsequent proceedings in the common pleas’ court, it is necessary to notice the dates:

On August 17, 1904, motion to discharge the attachment heard and granted as to 90 per cent of the fund held by the garnishee; plaintiffs except; judgment against plaintiffs for costs.

August 20, 1904, motion by plaintiffs for new trial filed.

August 20, 1904, petition in error to circuit court filed.

December 16, 1904, motion for new trial overruled; plaintiff excepts.

January 16, 1905, bill of exceptions filed.

It will be noticed that the bill of exceptions was filed more than forty days after the motion to discharge the attachment was granted, but within forty days of the overruling of the motion for a new trial.

The case being brought into this court by petition in error properly filed, defendant in error has moved to strike the bill of exceptions from the files. It is conceded that this motion should be granted, unless, by the filing of a motion for new trial and delay in ruling thereon, the time within which the bill of exceptions should be filed was extended beyond forty days from the order complained of.

It is further conceded that no motion for a new trial is necessary to authorize this court to review a judgment of the common pleas court upon a motion to dissolve an attachment, although the weight of the evidence is involved. Stone v. Savings & Bank. Co. 4 Circ. Dec. 854 (8 R. 636).

But plaintiffs in error contend that although such motion is unnecessary, having filed a motion for a new trial in the common pleas court, the time limited for the filing of a bill of exceptions begins to run from the overruling of such motion, and cites in support of his contention the case of Cincinnati St. Ry. v. Wright, 54 Ohio St. 181 [43 N. E. Rep. 688; 32 L. R. A. 340], where it is said, by Bradbury, J., on page 188:

“Counsel contend that because a motion for a new trial is not necessary to preserve the right to review a charge of the court,, the time within which a bill of exceptions should be taken for that purpose begins to run from the day the charge was given. This contention would be sound in a case where a motion for a new trial was hot made, and the party excepting chose to rely upon the exception taken during the course of the trial. The choice, however, is with him.”

The court thereupon goes on to point out that, “misdirection by the court to the jury,” was at that time a ground of error which by the specific language of the statute (Lan. R. L. 8813; R. S. 5301) might be included in a motion for a new trial, and thereby distinguishes that case from the case at bar.

As pointed out in the decision of this court, Stone v. Saving & Bank. Co. supra, pages 636, 639 the first clause of Lan. R. L. 8821 (R. S. 5305) defining the causes for which new trials may be granted reads:

“A new trial is a re-examination, in the same court, of an issue of fact, after a verdict by a jury, a report of a referee or master, or a decision by a court,” and the issue of fact referred, to must be one arising on the pleadings, as defined in Lan. R. L. 8643 (R. S. 5128); and no such issue arises upon a motion to dissolve an attachment. Hence not only is a motion for a new- trial unnecessary, after a ruling on a motion to dissolve an attachment, but there is no provision of law authorizing one.

We therefore hold that the filing of the motion for a new trial after the granting of the motion to dissolve the attachment, was a nullity and did not operate to extend the time within which a bill of exceptions should be filed, and the motion to strike the bills of exceptions from the files is granted. In this conclusion we are sustained by the opinion delivered by Judge Hull, of the sixth circuit, in the ease of Thomas v. Mangus, 25 O. C. C. 649.

The only error complained of shown by the record and not re* quiring a bill of exceptions to exhibit it, is the overruling of the motion to dismiss the appeal on the ground that the statute authorizing the appeal is unconstitutional. It is pointed out that said statute (Lan. R. L. 10071; R. S. 6494) provides that the defendant, only, shall have the right to appeal from the decision of the justice on a motion before him to dissolve an attachment. It is admitted that the plaintiff has his remedy by proceedings in error, if the justice erroneously grants the motion to dissolve, but it is said that if the defendant has a summary remedy by appeal, in event the motion is decided against him, the plaintiff should have a like summary remedy when the motion is decided in favor of the defendant.

What specific article of the constitution is thus violated is not pointed out, but counsel has intimated that in some way Sec. 1, Art. 1 of the bill of rights is violated. That by the statute referred to, classes of citizens, to wit, defendants in attachment cases, have certain rights, privileges and remedies, which are denied to other classes of citizens, to wit, plaintiffs in attachment cases.

We apprehend, however, that no classes of citizens are thus created or favored; rather, the legislature has seen fit to regulate according to a plan of its own, the various methods by which the rulings of justices of the peace in a certain class of cases, and in certain contingencies may be reviewed. As the right to have any judgment or order reviewed, either on error or by appeal is wholly a statutory right, there can be no constitutional objection to the method provided therefor in attachment cases, by the statute under consideration. Judgment affirmed.

-Marvin and Henry, JJ., concur.


author: MARVIN, J.

text:
    ; MUNICIPAL CORPORATIONS — CRIMINAL LAW — RECORD-EVIDENCE.
    [Lorain (8th) Circuit Court,
    May 8, 1905.]
    Marvin, Winch and Henry, JJ.
    Carl Esch v. Elyria (City).
    1. Council mat Make Noist Conduct, etc., a Penal Offense under Lan. R. L. 3102 (B. 1536-100).
    A municipal council has authority, under favor of Lan. R. L. 3102 (B. 1536-100), to pass an ordinance making it a penal offense for a person to conduct himself in a noisy, rude, insulting and disorderly manner by words and acts towards another, and in such manner- as to annoy the citizen» and disturb the good order and quiet of the municipality.
    2. Mayor takes Judicial Notice of Ordinances — Rule with Respect "to Courts of Record.
    The mayor of a municipal corporation is bound to take judicial notice of the city ordinances, but the courts of record are not so bound. The latter courts only take notice of such enactments when they are incorporated into the bill of exceptions and made a part of the record.
    3. When Reviewins Court will Presume that Mayor did not Err in Finding that Penal Ordinance was Passed, etc.
    A revewing court will presume that the mayor did not err in finding that the council had passed a penal ordinance, when it appears that it was within its power to pass an ordinance making certain acts, which ar* set forth in the affidavit under which the defendant was arrested and tried before the mayor, a penal offense.
    Error to Lorain common pleas court.
    Fritz Rudin, for plaintiff in error:
    The affidavit is insufficient because it omits to charge the alleged offense or offenses therein attempted to be charged, as having been wilfully committed, as required by the ordinance. Drake v. State, 19 Ohio St. 211; Arata v. State, 12 Dec. 730.
    The affidavit fails to charge the alleged offense or offenses as having been committed to-the annoyance of the citizens “of this village or any portion thereof,” as defined by the ordinance. Hummel v. State, 10 Dec. 492 (8 N. P. 48) ; Jefferies v. Defiance, 11 Dec. Re. 144 (25 Bull. 68) ; Pope v. Cincinnati, 2 Circ. Dec. 285 (3 R. 497); Davis v. State, 19 Ohio St. 270; State v. Bitzman, 8 Dee. 685 (7 N. P. 613).
    The affidavit is also duplicitous. Mulkauser v. State, 25 O. C. C. 81.
    The affidavit in its material and constituent facts, describing the acts done by the defendant, charges an assault and battery only. Hummel v. State, 10 Dec. 492 ( 8 N. P. 48); Lamberton v. State, '11 Ohio 282; Bedmond v. State, 35 Ohio St. 81.

      The mayor has no jurisdiction to punish or hear except for purpose of binding over on assault and battery charge. Wellsville v. O’Connor, 24 O. C. C. 689; Lan. E. L. 10899, 10900 (E. S. 7146, 7147) ; Winn v. State, 10 Ohio 345.
    New trials. Stone v. State, 12 Dec. 154; Lan. E. L. 3359 (E. S. 1826; B. 1536-878).
    Disorderly conduct. Jefferies v. Defiance, 11 Dec. Ee. 144 (25 Bull. 68) ; Vanvalkenburg v. State, 11 Ohio 404.
    W. B. Johnston, for defendant in error.
   MARVIN, J.

In the ease of Carl Esch against the city of Elyria, Esch was prosecuted before the mayor of the city of Elyria, an affidavit having been filed with the mayor, charging him in these words:

“Before me, Thomas Folger, mayor of said city in said county, personally came Mrs. Olive Hulf, who being duly sworn according to law, deposeth and saith, that on or about the twelfth day of August, a. n. 1904, at the county of Lorain and city of Elyria, one Carl Esch, late of said city and county, unlawfully did conduct himself in a noisy, rude and insulting and disorderly manner by words and acts toward one Grover Hulf, by striking him in the breast and by striking him in the face, with intent to abuse the said Grover Hulf, and so as to annoy the citizens and disturb the good order and quiet of the city of Elyria, contrary to the form of the ordinance in such eases made and provided. ’ ’

There are some things curious about this: what words were uttered ? The affidavit says he disturbed the peace by the use of boisterous words, to wit: he struck somebody in the face. But council had a right, under Lan. R. L. 3102 (B. 1536-100) to pass an ordinance whie]i would make what is charged in that affidavit an offense. Among the things that it is provided, in the section referred to, that the council of a municipality may do, is “To prevent riot, gambling, noise and disturbance, indecent or disorderly conduct or assemblages, and to preserve the peace and good order, and protect the property of the corporation and its inhabitants.”

Clearly the municipality had a right to pass an ordinance which would make it an offense to do the things which it is here charged were done. But it is said that it is not here charged that those things were done which are prohibited by the ordinance. The answer to that is, We do not know what the ordinance is. We know that the city had a right to pass an ordinance that would make the things here charged an offense. And I take occasion to say a little on that, because there has been a good deal of misunderstanding about it. The mayor of course was bound to take judicial notice of the ordinances of the city, but the higher courts will not take judicial notice of the ordinances of a municipality. To require that would require the Supreme Court of Ohio to take judicial notice of every ordinance in every village in Ohio. It cannot be done; it is not done. This court has distinctly held in two cases, one of which has gone to the Supreme Court and been affirmed, that we cannot take judicial notice of an ordinance, and we cannot reverse a case unless error is apparent.

The mayor found that an ordinance had been violated. We find the municipality had a right to pass an ordinance which would be violated by the happening of the facts charged in this affidavit. We are bound to presume that the mayor did not err in finding that the municipality had'passed such ordinance.

It is asked, Then how is the reviewing court to know what the ordinance is? So far as I know, the only way is for the bill of exceptions to show what the evidence was, and to show in addition what the ordinance was. It is true the ordinance would not be introduced on the trial in evidence before the mayor, but the only reason it would not be, is because he is bound to know it, and therefore it is a fact before him; and so the bill of exceptions should show what the ordinance was; the mayor should certify with the other evidence in the case what the ordinance is; then the reviewing court will take notice of it, not because it takes judicial notice of the ordinance of municipalities, but because it has before it, by the certificate of the mayor, in its bill of exceptions, what- the - ordinance is under which the prosecution was had. In no other way can it properly be brought to a reviewing court.

This court has, in at least two eases, reversed the municipal court where the ordinance did not appear; but in both cases it was because we found that the facts charged in the affidavit could not constitute an offense under any ordinance which the municipality had authority to pass, and that, therefore, no difference what the ordinance attempted to be passed was, that there could not be an ordinance, authorized by law, which would make an offense of the facts charged in the affidavit. The judgment is affirmed.

Winch and Henry, JJ., concur.