
    Campbell v. Park.
    1. The finding by trustees of special road districts, under section 46 of the statute relating to towns and cities (2 S. & 0. 1509), that two-thirds of the resident owners of lots of land through which a proposed improvement is to be made, have petitioned therefor, is not conclusive of the fact.
    2. Such fact may be inquired into by the court in an action to collect an assessment made to pay for the improvement, as well to support an order to make the same, as to impeach it.
    3. It is not essential-that the necessary two-thirds shall sign one petition. If more than one petition is actually pending when the order is made, and they together contain the requisite number of petitioners, the power to make the order can not be impeached on the ground that the trustees acted on one of them only, which was not signed by two-thirds of the resident owners.
    4. On the 19th of August, 1868, a petition was presented for the improvement, which was examined by the trustees, but they rejected it, by reason of a supposed defect of one of the signatures, but did not pass upon the merits of the application. The petition was not withdrawn, nor did any of the signors withdraw their names, but it remained on file with the trustees until the 23d of September, 1868, when, the project for the improvement being still pending, a second petition for the same improvement was presented, and the order made thereon; the proper ordinance was passed and published; the work was let and completed after due publication, without objection by the signers of the first petition whose names are not on the second. Held, That iñ the absence of proof to the contrary, the presumption is, that those signing the first petition, continued to be petitioners at the time the order was made on the second, and may be counted to ascertain if the necessary two-thirds desired the improvement.
    5. Under the statutes relating to taxation, the guardian of minors is charged with the duty of representing the real estate of their wards in listing it for taxation and payment of taxes, as well as in the general management of such estate, and as such guardian he may represent his wards’ estate under the statute above cited, either to ask for or oppose such improvement.
    6. Where minor children, who are tenants in common of the lot of land, reside on the same, they are resident owners; but whether each is to be counted, or all counted as one, Quere.
    
    7. If the names of such minors and of the guardian individually, are signed to a petition by direction of the guardian and in his presence, it is equivalent to his signing as guardian.
    Error. Reserved in the District .Court of Hamilton county.
    The action was originally brought by the plaintiff, to en- . force an assessment against property owned by sundry persons, situated on Jefferson street in the special road district of "Walnut Hills, Mt. Auburn, and Clintonville, now a part of Cincinnati, and known as Corryville.
    Judgment was rendered against the several pieces of property, among which was that of defendant Park, who appealed to the district court, where a special finding of facts was made, and; on his motion, the case was reserved for decision in this court.
    The following is a copy of the special findings, and of the order of reservation:
    This cause came on this day to be heard, upon the separate appeal of' John M. Parks from the judgment and orders of the court of common pleas, rendered against him and others, and was heard upon the petition of plaintiff, the answer of the defendant, Parks, the plaintiff’s reply, the testimony and proofs upon submission to the court, and after hearing the arguments of counsel, the court, being advised in the premises, find the facts to be:
    
      First. That upon the 23d day of September, 1868, a petition, printed, and in writing, addressed to the trustees of the "Walnut Hills, Mount Auburn and Clintonville Special Road District, Hamilton county, Ohio, and purporting to be from several lot owners in the said special road district, resident upon Jefferson street, between Calhoun' and St. Clair streets, in the subdivision of Corryville, was presented, together with a plat of said street, showing the lots abutting thereon, to said trustees, at a regular meeting of their board, praying that the grade of said street be established; that it be graded full width, gutters paved, curbs set, sidewalks flagged, roadway macadamized, and that such bridges, culverts, and well-holes maybe built as should be found to be necessary; all to be done in a good substantial manner.
    
      Second. That the plat presented with said petition showed the frontage of the several lots abutting on the street, and upon one of these lots resided Mrs. Margaret Shay, a widow? and her children — P. S. Shay, aged ten years, and Margaret Shay, aged nine years — the property being in the children by descent from their father, and the mother being guardian of their persons and estates, duly appointed by the probate court, and entitled to dowrer, which had not been assigned. That upon another of these abutting lots there resided Kunegunda Dusold, a widow, with two of her children — Catherine and Margaret, aged fourteen and seventeen respectively — the other child of Mrs. Dusold not residing with her, the property being in the children by descent from their father, and the mother being guardian of their persons and estates, duly appointed by the probate court, and entitled to dower, which had not been assigned; and that upon the said street, within the limits of said improvements, were other lots, upon each of which -resided its owner, to the number of seven, making the number of resident owners of lots upon said street, excluding the lots of the said Mrs. Shay and her children, and Mrs. Dusold and her children, seven and no more.
    
      Third. That of these seven resident owners of lots, three .did not' sign the petition aforesaid to the trustees, the other four did sign the petition. That, by the authority of Mrs. Shay, and in her presence, her name, and that of each of her children, were subscribed by Stokes, one of the trustees, she affixing her mark, being unable to write. That Mrs. Dusold signed her name to the petition, in presence of her children, and, at the same time, the daughter, Catherine, subscribed her name and her sister’s (Margaret) to the petition, in Margaret’s presence, and with her consent, and there were no other signatures to the petition.
    
      Fourth. That prior to the presentation of said petition, the project of improving Jefferson street, as prayed for, had been under consideration in said board, upon alike petition, presented August 19, 1868, but rejected for a supposed defect in one of the signatures, which petition was signed by two of the three resident lot-owners who did not sign said petition of the 23d of September, 1868, and, although rejected by the trustees, remained on file iu the office of the said trustees, and the said trustees had examined carefully at that time, as to the number of resident owners upon said street, and when said petition of September 23, 1868, was presented, said trustees were honestly of opinion that the names of the required number, two-thirds of the resident owners, were signed to said petition of September 23,1868, and so accepted said petition ; and by ordinance passed in due form at an adjourned meeting, September 25, 1868, reciting that two-thirds of the resident owners of lots of ■land abutting on said street had petitioned therefor, the said trustees, by ordinance, declared the improvement necessary, and ordered that said street, from Calhoun to St. Clair streets, should be graded to full width, gutters payed, curbs set, sidewalks flagged, and road macademized, with such culverts and well-holes as might be found necessary; the costs and expenses thereof to be ascertained and assessed on the front foot, according to the acts of the legislature, and the ordinances of the special road village upon the subject of special taxes, and that the clerk should give notice of such determination to improve, according to law.
    
      Fifth. That thereupon notice of the ordinance aforesaid was given by public advertisement thereof for four weeks in the Gazette and Yolksblatt newspapers, printed and of general circulation in Hamilton county, said advertisement being made by the clerk of the board of trustees, setting forth a copy of said ordinance.
    
      Sixth. .That at the regular meeting of said board of trustees, October 14, 1868, the grade of Jefferson street, from Calhoun to St. Clair streets, was established at the same grade as had been on 22d of July, 1868, established by an Ordinance at the time passed by said board, and afterward, :for ten consecutive days, from October 28,1868, to November 4, 1868, an advertisement was made by public notiee printed in the Cincinnati Gazette, a newspaper printed and in general circulation in said Hamilton county, that sealed proposals would he received at the office of said trustees until November 4, 1868, for grading, setting curbs, paving the gutters, macadamizing the roadway, flagging the. sidewalks, building well-holes, and culverts of Jefferson street, from Calhoun to St. Clair streets, the specifications to be obtained from J. Earnshaw, engineer, northwest corner of Fourth and Race streets, Cincinnati, Ohio.
    
      Seventh. That the sealed proposal of Hugh Campbell (who was not a resident of said district, and who had no ■knowledge of the names or number of resident owners upon said Jefferson street) was made for said work, and wras presented by him to the said trustees, November 4, 1868, at two o’clock p. m., about an hour before the regular meeting of said board of trustees on that day, at the regular place of meeting, and at the sitting of said board, at about three o’clock p. m., was laid before the board. That there were no other bids offered, nor other bidders present, nor objections by any one, except D. Shauley, a bystander, who urged that there were four other bids, which had not been put in. That thereupon, before opening said proposal of the said Campbell, the trustees waited until near the hour of adjournment, when they inquired again for other bids, and, no other being offered, they opened the said sealed proposal of Campbell, considered the same, accepted his bid, and accorded him the work, and there was no other bid offered.
    
      Eighth. That on November 5, 1868, the next day after the award of work, Campbell began the work, putting on a working force of sixty (60) laborers, together with horses and carts, and the work was in progress.
    
      Einth. That no written stipulation other than the proposal of said Campbell, accepted as aforesaid, was made at the time of the proposal and acceptance, but afterward, on the — day of November, 1868, a contract was written out, providing that said Hugh Campbell should furnish all materials and labor, and complete the work aforesaid to the satisfaction of said trustees and their engineer, in one year from January 1,1869, the sidewalks to be flagged four feet wide, the curbs to be four inches thick and eighteen inches deep, and an average length óf two feet; gutter paving to be six feet wide, resting on a course of good, screened gravel, six inches thick, the stones forming the center course to be not less than three inches thick, eighteen inches long, and twelve inches deep, those in the remaining courses to be not less than two inches wide and nine inches deep, the road covering to consist of broken stones one and one-half inches in diameter, to be nine inches in depth at the gutter paving on each side, and twelve inches deep in the center, and to be spread on the street when the roadway should have become dry, smooth, and well settled, and the flagging of the sikewalk to be of good, large limestone, three inches thick, resting upon a layer of good, screened gravel, four inches in depth.
    
      Tenth. That the prices stipulated in said contract were those at which the work was awarded to said Campbell, and the same as contained in his sealed proposal, accepted by said trustees ; and the contract further provided, on the acceptance of the work, said trustees should cause to be levied an assessment upon the front foot of the lots abutting said improvement, for the cost and expense of the work at said prices, and that the same should be received by the said Campbell in full payment, he assuming the collection of said assessment without cost or charge to said village, and agreeing that neither said village nor said trustees should be liable for any expense or cost of said improvement.
    
      Eleventh. That to said contract was appended, upon the same sheet, an undertaking in the names, as set forth in the body thereof, of Edward Martin and Patrick Fox, stipulating as sureties for the performance of said contract by said Campbell, and at the bottom of said undertaking on the — day of November, 1868, the day the contract was written, were affixed the signatures and seals of said Campbell and two of the said trustees, together with a thirty cent revenue stamp of the United States, and there were no other signatures.
    
      Twelfth. That under the direction of the engineer of said board of trustees, and controlled by him, the work of grading and filling Jefferson street, from Calhoun street to St. Clair street, as required by said contract, was carried on by the said Hugh Campbell with diligence, from the time the work was. commenced, November 5,1868, until the 20th of February, 1869, when he united with him in the work John Gaynor.
    
      Thirteenth. That in consideration of John Gaynor undertaking, by advance of capital and labor, one-half of the expense of said work, it was agreed between Gaynor and Campbell that Gaynor should be entitled to one-half the assessment for the work.
    
      Fourteenth. That thereupon said Campbell and Gaynor caused to be prepared a written copy of the contract aforesaid, except in the addition of Gaynor’s name to Campbell’s, and except further that the clause requiring a layer of good, screened gravel, four inches in depth, beneath the flagging, was omitted; and so much of the clause concerning the center courses of the gutter paving as required the stones to be not less than eighteen inches long and one foot deep, was omitted; and so much of the clause concerning metal in the roadway, as required the depth to be twelve inches in the center, was omitted; and so much of the clause concerning gravel under the gutter paving as required it to be screened, was omitted; and the specification as to the depth of curbs was sixteen inches ; and the specification as to the diameter of the broken stone of the roadway was not exceeding two and one-half inches; and to the clause concerning the agreement to receive for the work an assessment to be levied by the trustees of the special road district, was added this paragraph: “ On condition that said special road village, by the trustees thereof, shall have performed all their duties herein, in accordance with law and this agreementand the clause which was as follows in the contract with Campbell, aforesaid : “ And in no event will the special road village, or the trustees, be held liable for any of the said expense of said improvement,” was omitted.
    
      Fifteenth. That said written paper was, upon the 20th day of February, 1869, signed and sealed by said Campbell and Gaynor, and by two of said trustees, in the absence of the third one, without his knowledge or consent, and not at any regular or called meeting of the board of trustees of said incorporated village, and was never approved at any meeting of the board, and appended thereto was a written undertaking, stipulating for the performance by said Campbell and Gaynor of the work therein referred to, signed by Edward Martin and Patrick Eox, as sureties. Whereupon Campbell and G-aynor together continued the work.
    
      Sixteenth. That the work of grading Jefferson street, from Calhoun street to St. Clair street, macadamizing the roadway, paving gutters, setting curbs, flagging sidewalks, and building necessary culverts and well-holes, was finished by the first of November, 1869, in all particulars as required by the contract of November, 1868, except that the broken stone on the roadway was broken two and one-half inches in diameter, and the flagging of the sidewalk was put down without any gravel beneath it. That the cost and value of the stone of the roadway, as broken, was equal to what would have been the cost and value if broken one and one-half inches in diameter, but the cost and value of the flagging without gravel beneath it was less by eight hundred dollars ($800) than its cost and value if resting on four inches of gravel.
    
      Seventeenth. That upon the 4th of November, 1869, notice was given, by posting written notices in the neighborhood, that the trustees and the engineer would meet November 10, 1869, upon said Jefferson street, from Calhoun to St. Clair streets, and determine the question of accepting the same. And upon the said 10th day of November, 1869, the said trustees with their engineer, pursuant to said notice, did go upon said street and inspect said work, and the work was to their satisfaction, and was by them accepted.
    
      Eighteenth. That after the inspection and acceptance of said work, the said trustees directed their engineer to make an estimate of the said work, according to the price at which it was awarded, and said estimate was made and the rate of assessment therefor upon the front foot of the lots abutting said improvement was fixed by the certificate of said engineer, duly filed in the office of said trustees, together with the plat of said street and lots, November 12, 1869.
    
      Nineteenth. That the rate, as fixed by said estimate and certificate, was $11,025 upon each front foot of the several lots of land abutting upon said improvement of said street, between Calhoun and St. Clair streets; and that by ordinance duly enacted by said trustees, at a meeting November 17, 1869, it was ordained and declared that said sum should be levied and assessed upon each front foot of said several lots, and paid by the owners of said several lots to Hugh Campbell aforesaid, within twenty days from the date thereof.
    
      Twentieth. That the lots of land owned by the defendant, Parks, bounding and abutting upon Jefferson street, between Calhoun and St. Clair streets, are described in plaintiff’s petition, and contain in all fifty feet front on Jefferson street.
    
      Tioenty first. That the actual expense of said work exceeded by about $6,000 the amount of the assessment. The amount of the assessment was $52,258.53; that, by omitting to supply gravel beneath the flagging of the sidewalks, the work so far fell short of the contract, and the assessment was to that extent in excess ; that the amount in excess was $600, the cost of the gravel remaining to be supplied, and $200, the expense of spreading beneath the flagging, which remained to be performed; that the items charged in ■ the assessment of advertising, $94; attorneys’
    fees, $45; engineer, $500, were no part of the work performed by the plaintiff, and that the work performed by the plaintiff at the contract price amounted to $50,819.53 ; that the whole number of feet on both sides of Jefferson street, from Calhoun street to St. Clair street, exclusive of streets and alleys, is 4,740 feet, and that the work performed amounted to $10.72 1.4 per front foot at the contract price.
    That John M. Parks is now, and at the commencement of this suit was, the owner of lots Nos. 13 and 14, of block No. 87, in the subdivision made by the heirs of William Corry, deceased, in section 14, town No. 3, E. R. 2, of the Miami purchase, each lot of which fronts twenty-five feet on the west side of Jefferson street, making a front of fifty feet, and extending back the same width in rear as in front, between parallel lines, on-e hundred and ten feet.
    And upon the facts hereinbefore found, the court being of the opinion that the lots of the said defendant, John M. Parks, each fronting twenty-five feet on the west side of Jefferson street, as aforesaid, being lots 13 and 14 of block 37, of the subdivision of the heirs of William Corry, deceased, are properly chargeable with the expense of the improvement of said street, to the amount of ten dollars, seventy-two cents, one and four-tenths mills ($10.72 1.4) upon each front foot. If a petition signed by two-thirds of the resident lot owners upon said street was presented to the board of trustees of the special road district, praying for the improvement, but with respect to that the court, upon the facts hereinbefore set forth as to the signing of the petion of September 28, 1868, being divided in opinion whether infants of the age of the children of Mrs. Margaret Shay and Kunnegunda Dusold, respectively, by themselves or with their mothers, also their guardians, might sign such petition so as to make the same as to them á valid petition under the law. It is therefore ordered, upon the motion of the said defendant, that the cause be referred to the Supreme Court of Ohio for its decision.
    
      Paxton v. Warrington, for plaintiff in error:
    Th¿ trustees acted only on the second petition, and did not consider the first, hence we claim that the two who signed the first petition should not be counted. Corry v. Gaynor, 22 Ohio St. 584; 94 U. S. 202.
    As to considering the four infants as signers, see-Walker’s Am. Law, 326 ; 2 Blackstone’s Com. 191, 192; 57 Penn. St. 467.
    Could the infants herein, by themselves or their mothers, who were also their legal guardians, sign the petition so as to make it as to them a valid' petition ? We claim they could. See Sheldon v. Newton, 3 Ohio St. 507. At all events, their acts were only voidable. 1 Am. L. C. (5 ed.), 300; Harner v. Dipple, 31 Ohio St. 77; Tyler on In. and Cov. 44. And this privilege of the infant to avoid its acts can only be taken advantage of -by the infant or its legal representative. Tyler on In. 59; Bing, on In. 49; Keane 
      v. Baycott, 2 H. Bl. 511; Oliver v. Hordlett, 13 Mass. 237; Slocum v. Hooker, 13 Barb. 536; Alsworth v. Gordtz, 31 Miss. 32; Van Bramer v. Cooper, 2 Johns. 279; Jackson v. Todd, 6 Ib. 257; Jackson v. Mayo, 11 Mass. 147; Parsons v. Hill, 8 Mo. 135; Jefford v. Ring old, 6 Ala. 544, and 2 Kent’s Com. 237; Gillow v. Lillie, 27 E. C. L. 548; Grey v. Cooper, 26 Ib. 36; Scovill v. Cleveland, 1 Ohio St. 126; Este v. Strong, 2 Ohio, 401; 5 Ohio St. 543.
    As to estoppel, see Quinlan v. Myers, 29 Ohio St. 500; 34 Ind. 140; 22 How. 364; 94 U. S. 202; Bigelow on Estoppel, 468.
    
      Long, Kramer & Kramer for defendants in error:
    Whether or not the improvement was petitioned for by two-thirds of the resident lot-owners, raises a question of jurisdiction, on which question see Corry v. Gaynor, 22 Ohio St. 584.
    I. Was the petition upon which the trustees acted, and on which they took jurisdiction, and which was signed by the two widows and their infant children, properly signed by two-thirds of the resident lot-owners? We say not, because Mrs. Shay and Mrs. Dusold were not resident owners of lots within the meaning of the law, in that they -were only entitled to dower in the land, and which was unassigned. 2 Scribner on Dower, 26; Jackson v. Aspell, 20 John. 411; Gooch v. Atkins, 14 Mass. 378; Johnson v. Morse, 2 N. H. 48; 4 Kent, 61; Green v. Putnam, 1 Barb. 500; Sheaf v. O’Neil, 9 Mass. 9; 6 Ala. 873; 1 Wash, on R. P. 285; Corry v. Gaynor, 22 Ohio St. 584.
    If there was no jurisdiction conferred upon the trustees, they could not make a valid or legal assessment, and if the assessment was void, the corporation is liable. Memphis v. Brown, 20 Wall. 289, 311; Kearney v. Covington, 1 Met. (Ky) 339; Maher v. Chicago,38 Ill. 266; Chicago v. People, 48 Ill. 416; Folz v. Cincinnati, 2 Handy, 161.
   Johnson, Chief Judge.

The trustees of this special road district acted under the 46th section of the towns and cities’ act, as amended in 1853 (vol. 51, p. 376 O. L.) 2 S. C. 1509, which reads as follows:

“ No order directing the opening of a new road, street, or alley, or the taking of any land for the improvement, straightening, or changing any road, street, or alley shall be made by the said trustees,'unless they shall all concur therein ; and no order shall be made for the improvement or repairs of any road,, street, or alley, except on the petition of two-thirds of the resident owners of the lots of land through or by which such road, street, or alley, or part thereof to be improved or repaired shall pass.”

In Corry v. Gaynor, 22 Ohio St. 584, it was held: “ The trustees of special road districts have no power, under section 46 of the act of May 3, 1852, above referred to, as amended by the act of May 12, 1853 (vol. 51 Ohio Laws, 376), to order the improvement of streets, and charge the cost thereof upon the abutting lots, except upon the petition of two-thirds of the resident owners of the lots thus situated; and the finding of the trustees, that such petition was presented, is not conclusive of the fact.”

The question is therefore settled, that it is necessary that a petition should be presented, signed in fact by two-thirds of the resident owners of the lots of land; notwithstanding the trustees may have found such petition was presented, the contrary may be shown, and the court below having reserved this question as to whether the improvement w-as petitioned for, to this court, by two-thirds of the resident lot-owners, we proceed to the examination of that question.

The question here presented goes to the jurisdiction of the trustees to make the order for the improvement. There were seven resident owners of lots, exclusive of Mrs. Shay and her children, and Mrs. Dusold and her children. Of the seven, four signed the petition of September 23, 1868. Two others of the seven, not on this petition, signed a previous petition for the same improvement, dated August 19, 1868, so that six out of the seven were on different petitions for this improvement.

It is claimed that the names of the two on the first petition should not be counted, because : 1. The trustees acted solely on the second petition, and did not consider the first.

If the first petition was in fact pending, or if these two signers were at the time actually petitioners, the trustees had jurisdiction, although they had not if we look to the second petition alone.

The first petition was rejected, because of a supposed defect in one of the signatures.

The merits of the proposed improvement were not passed upon. The petition was examined and placed on file. The project was not abandoned, but was still under consideration by the promoters, and on the 23d of September, within thirty days after the first petition was presented, the second was filed. The trustees, supposing it contained the proper number of signers, did not look further, and made the improvement.

The so-called rejection of the first petition was, in legal effect-, a refusal to take action, by reason of a defect of a signature, and not on the merits.

It is said the promoters of the improvement regarded the first petition as dead, because, they immediately proceeded to get up a new one'. If the construction which the promoters may have put on this transaction is to guide the court, then it was a mistake to ask the court to decide the question.

The real question is, was the first petition binding, and not how did the promoters or trustees regard it.

The trustees, it is true, looked only at the second petition, yet if in fact other names were on file, which they might have counted, the power to make the order may be supported. It is not essential that all signers should be on one petition.

Neither is the finding by the trustees, based on the second petition, conclusive of the fact.

In Corry v. Gaynor, supra, it was held that such finding may be impeached, and, a fortiori, it may be sustained.

Therefore, the finding of the trustees, that two-thirds signed the second petition, is impeached by showing that two of the signers, Mrs. Shay and Mrs. Dusold, were not lot-owners. And, for a like reason, their power may be supported, by showing that there were additional petitioners to those actually counted.

The question, then, is, were these two, who signed the first petition, asking for this improvement, petitioners when the order was made ?

It is said that the petition had been rejected for a sup- . posed defect in one of the signatures.

This so-called rejection could be nothing more than a refusal to act. The petition was not rejected, but received, examined, and filed, and remained on file when the order was made. The trustees refused to act on it, for the defect in a signature. They did not refuse to order the improvement, if the requisite number of signers were obtained, and evidently it was understood they would make the order, if signers enough were obtained. Hence the second petition.

These two petitioners never withdrew or revoked their petition, nor does it appear they -would have done so if it had not been rejected.

It may be- conceded, that had these two petitioners known of the refusal to act on the first petition, and that a new one was circulated, they might have rested on that and been free. This knowledge may have made them abstain from revoking their assent. As it is not shown, however, that they had such knowledge, we must presume they continued to be petitioners on the 25th of September.

This presumption is greatly strengthened, in view of the fact that the scheme for the improvement had not been rejected or abandoned, but was still pending; that they had not withdrawn or revoked the petition on their part, and that it -is not shown that these two petitioners ever objected to the improvement; but, on the contrary, so far as appears, continued to favor the improvement, and have paid their assessments without objection.

Notice of the passage of the ordinance for this improvement, passed September 25th, was published in a newspaper of general circulation in the county. On the 22d of July previous, the grade of this street had been established by ordinance; and on the 14th of October, this grade was adopted, and from October 23d to November 4th, public notice was given, in the Cincinnati Gazette, for the letting of the work. Notice was thus legally brought home to all the resident lot owners.

If such was not the fact it was proper to have shown it, and in view of the exhaustive resistance that has been made to this assessment, it is clear it would have been shown to defeat the jurisdiction of the court, if such was the fact.

Eor these reasons the presumption is, that at the time the order was made, these two were actually petitioners and might have been counted by the trustees.

2. The second petition was signed by Mrs. Shay, a widow, and her children, one aged ten, and the other nine years, of whom she was guardian. The land descended to the children from their father; and they, with their mother, resided on it. That these children were resident owners of the lots of land, through or by which the improvement extended, is clear; but whether, beiug minors, they can be petitioners, or whether their guardian, residing on the premises, can sign for them, is a question. Another is, do these children count as one or as two resident owners, and as one or two petitioners ?

The third finding is, that by the authority of Mrs. Shay, and in her presence, her name and that of her children were signed to the "petition, by one Stokes, one of the trustees, she being unable to write.

In Corry v. Gaynor, it was held that neither Mrs. Shay nor Mrs. Dusold were property owners by virtue of their dower rights.

The question then is, Could these children, either by themselves, or by their guardians, become petitioners ?

The jurisdiction of the trustees to act, is made to depend on being asked for by two-thirds of the resident lot owners. The legislation might have authorized them to act, without such petition. The object was to prevent them from imposing an assessment, unless two-thirds of the resident owners asked for it. To petition was not a contract, as counsel assumed. By the act of signing a petition they imposed no obligation on themselves or on the land. Such a petition simply clothed the trustees with a discretion to make the improvement and assess the property or not, as in their judgment was proper. The power to create an obligation was vested in the trustees, and not in the petitioners.

As the signing of such a petition, by a sufficient number, clothed the trustees with a power, not only to impose burdens upon their lauds, but on the lands of others, we think minors have no capacity to sign such a petition. Minors are incapable of binding their own lands by contract, and it could not have been intended to vest in them the power to clothe the trustees with authority to charge the lands of themselves and others for the expense of improving streets.

The manifest purpose of the statute was, to obtain an expression of views of the resident tax-payers liable to assessment.

This expression might have been obtained by an election, in which the resident property owners would be entitled to vote.

The petition is a shorter, and equally effective, method of voting on this question. It could not have been intended to confer this franchise or power on ‘minors.

The abuses to which such a power in minors is liable are so manifest that we conclude the legislature never intended it. The power to vote taxes or assessments must rest in the hands of those liable to pay them.

Under our system of taxation, the guardian of minors, or those standing in that relation, represent their property, and are made responsible to the government for the burdens imposed on it.

By the act of April 8, 1865 (S. & S. 756), “ every person of f ull age and sound mind, not a married woman, shall list the real property of which she is the owner, etc. . . . The property of every ward shall be listed by his guardian; of every minor, child, idiot, or lunatic, having no other guardian, by his father, if living; if not, by his mother, if living,” etc.

By section 69 of the tax laws (S. & C. 1403), every person shall be liable to pay tax for the' lands of which he has the care as guardian, etc.

By section 70, it is made such guardian’s duty to list such lands for taxation, and if he neglects to do so, the auditor may add a penalty of twenty-five per centum; and by section 72, “every person holding lands as guardian,” who neglects or refuses to list or pay the taxes on the land, shall be liable to Ms ward for any damages sustained.

By the statutes relating to guardians, it is made their duty “to manage the estate for the best interest of his ward.”

These statutes show that the intention was to invest the guardian with the control of the estate of his wards, for purposes of taxation, and to hold him responsible to his ward for an abuse of that power. They show further, that it was not intended to impose any responsibility on minors, nor clothe them with any authority over their own lands in relation to taxation. In, the management of the ward’s lands, the guardian has power to do all acts reasonable and proper for the preservation and use of the real estate. This includes all duties relating to listing and payment of taxes, as well as renting and keeping the real estate in proper condition.

Mrs. Shay was guardian of her children, and resided on the land with them. We think she had the power to sign this petition to the trustees to order the improvement. Whether her wards will be bound by her acts in their settlement with their guardian, is another question, to be determined by the same rules that govern all other official acts, where a discretion in the management of the estate is vested in the guardian. As such guardian, Mrs. Shay could represent the land of her wards. The signing by her wards in her presence, and by her direction, is equivalent to her signing as guardian.

Speaking for myself alone, I think where there are several resident tenants in common, all should unite, either by themselves, where they aré adults, or by guardians, if minors, to authorize them to be counted; and that such cannot be counted as one, but all jointly constitute a .resident owner ; but it is not necessary to determine this. If each is counted, then there were eleven resident owners and eight petitioners. If the Sbay children and the Dusold children are each counted one, then there were nine resident owners and seven petitioners, not counting the Dusold children.

In either case, the necessary two-thirds were petitioners.

Cause remanded, to render judgment for the plaintiff.  