
    Charles McMicken v. The City of Cincinnati.
    A city council, in passing an ordinance to appropriate land for a street, does not act judicially, nor is the assessment of damages by the committee appointed for that purpose, a judicial act.
    Under the Cincinnati charter, publication of such ordinance is sufficient notice to property holders.
    It is not necessary to provide, in the ordinance, for a review of the assessment of damages; it is time enough to provide for that when a review is asked.
    *Bill in chancery, reserved in Hamilton county.
    On the 2d of April, 1851, the city council of Cincinnati, by ordinance entitled “to open North Elm street,” enacted that certain ground, specifically described, he condemned and appropriated to public use, as a street; that three disinterested freeholders of the •city he forthwith appointed by resolution, to separately assess, within sixty days, the damages and benefits of each owner of property, by reason of said appropriation, and return their assessment, in writing, to the city clerk’s office within ten days after making the same; and that the compensation, as ascertained under the provisions of the ordinance, be payable out of the city .treasury, upon the order of council.
    A resolution was passed at the same meeting of council, naming .and appointing three freeholders for the purpose specified in the •ordinance; on the 2d of May, 1851, they made an examination •and assessment, and on the 8th of May, returned the same to the city clerk's office. In their return, they say, “ they proceeded to -examine the premises, and assess the damages accruing from the ■opening of said street, and the compensation due, and are of opinion that Charles McMicken, and others named, are nokentitled to •any damages.” The assessment, so returned, was laid before council on the 21st of May, and referred to the law committee, who, on the 26th of September, 1851, reported a resolution, “that •said street, as condemned and appropriated by ordinance, passed 2d of April, 1851, be opened forthwith,” and that the street commissioners of that district “ cause all obstructions thereon to he removed;” which resolution was then read and adopted.
    The contemplated street was sixty feet wide, and passed diagonally through the complainant’s enclosed ground, appurtenant to bis residence, a distance of about three hundred and thirty feet. Not long after the passage of the resolution, directing the street to-be opened, the street commissioners commenced pulling down complainant’s fence, who ^thereupon, on the 12th of November, 1851, filed his bill against the city of Cincinnati in the superior court of Cincinnati, alleging, among other things, that lie-had no notice of the proceedings of council, nor of the action of the-freeholders appointed to ascertain damages and benefits; that the proceedings are void, and confer no authority to .take complainant’s ground; and that if so taken, great and irreparable injury will be done to him, and praying for an injunction, etc.
    At its January term a. d. 1852, the superior court refused to-grant an injunction and dismissed the bill at complainant’s costs. The complainant appealed from the decision of the superior court to the district court of Hamilton county.
    The case was reserved by the district coui't for decision here.
    
      Miner Clark & Oliver, for complainant, made the following points:
    I. The proceedings of the city council concerning the appropriation of complainant’s property and the assessment of damages, were essentially judicial. United States v. James Scott, cited in III, N. S. West. Law Jour., 25 ; Striker v. Kelley, 2 Den. 323, 326, 328, 329, 332; President and Council of Brooklyn v. Patchen, 8 Wend. 47.
    II. Complainant was entitled to special notice of said proceedings. Publication of the ordinance in the newspaper is not a sufficient notice. Bloom v. Burdick, 1 Hill, 139 ; Patterson v. Patterson et al., 11 Ohio, 35 ; Owners v. Mayor of Albany, 15 Wend. 374; Corlis v. Corlis, 8 Vt. 389; Chase v. Hathaway, 11 Mass. 224 ; City of Cincinnati v. Coombs, 16 Ohio, 186.
    III. The ordinance for the appropriation and condemnation of complainant’s property, by merely, providing, that “ the compensation shall be payable out of the city treasury,” fails to provide any legal mode for him to get compensation for damages. Sec. 1 of act of March 7, 1842 (40 Ohio L. L. 143), Repealed by section 9 of act of March 20, 1850, sec. 2 of the act of March 16, 1839 (37 Ohio L. L.) ; 2 Kent’s Com. 339, note; Young v. McKenzie, Harrison et al., 3 Kelley’s (Ga.) 45; Parham v. The Justices of Decatur county, 9 Ga. 356 ; Thompson v. Grand Gulf Railroad and Banking Co., 3 Howard (Miss.), 240; Gardener v. Trustees of Newberg et al., 2 Johns. Ch. 162 ; Bonaparte v. C. & A. R. R. Co., 1 Bald. C. C. 225 ; McArthur v. Canal Commissioners. 5 Ohio, 140; Foote v. City of Cincinnati, 11 Ohio, 408.
    IY. The proceedings are ineffectual, because they do not provide for the review of the assessment or valuation of the damages. See-sec. 2 of the charter (act of March 6, 1839, 37 Ohio L. L.) ; Kemper v. Cin., Cal. and Wooster Turnpike, 11 Ohio, 392; Moorehead v. Little Miami R. R. Co., 17 Ohio, 340; City of Cincinnati v. Coombs et al., 16 Ohio, 186.
    Y. All pre-existing laws of this state for the condemnation and appropriation of private property to public use were amended by the new constitution, which went into operation on the 1st of September, 1851.
    The proceedings to condemn the complainant’s property, were inchoate at that time; there had not been any actual taking, no< entry upon and seizure of the same prior to September 26, 1851,. when the city council by resolution ordered the street to be opened: and the street commissioners to remove all obstructions thereon. 3 Kent’s Com. 339, note; Parham v. The Justices of Decatur Co., 9 Georgia, 356 ; Young v. McKenzie, Harrison et al., 3 Kelley’s (Ga.) 45; Gardener v. Village of Newberg, 2 Johns. Ch. 164-166.
    In the progress of the proceedings and before the final consummation of the object of them, before any entry and seizure, before-the opening of the street, the enabling power which must attend them, from the beginning to the end, was taken away by the new" constitution, and the city, in subsequently entering upon the premises and opening the street, was a trespasser.
    *The city council had no power since September 1, 1851, to provide for such a tribunal of review as was required by the first-proviso to the second section of the act of 1839. That act being-repugnant to the new constitution, was repealed by it. Cass v. Dillon, 2 Ohio St. 607; City of Cincinnati v. Coombs et al., supra.
    
    No other argument has come into the hands of the reporter.
   Thurman, C. J.

There is no ground for saying that, in passing; the ordinance to appropriate the complainant’s land, the city council acted judicially.

Nor was the assessment of damages by the committee appointed ■by the city council, a judicial act, for no. property holder was con-eluded thereby — a right of review of the assessments, so far as they concerned him specially, being given, by the charter, to each owner who should ask for it.

Consequently, the proceedings are not void for want of the notice insisted ujion by the complainant. The publication of the ordinance was sufficient notice, the law not requiring a special notification.

"We see no objection, at least none of which the complainant can take advantage, to the provision of the ordinance for the payment of the damages, that might be assessed, out of the city treasury.

It was not necessary to provide, in the ordinance under consideration, for a review of the assessment of damages; it was time enough to provide for that when a review was asked.

We think that the complainant’s |>roperty was taken, in the meaning of the constitution of 1802, when the ordinance was passed .and the assessment made. Consequently, the case does not come under the provisions of the present constitution.

This disposes of all the points made by the bill and upon which ..it rests.

Bill dismissed.  