
    William H. Glenn, Treasurer, et al. v. James Waddel et al.
    1. Under the act of March 29, 1867, as amended by the acts of March 31 and May 9, 1868, authorizing county commissioners to construct roads, and providing for assessing the cost thereof upon lands thereby benefited, the commissioners are not authorized, after the report of the-apportionment committee has been affirmed, to order the assessment of additional lands. The confirmation of such report is final, and exhausts the power of the commissioners with respect to the assessment.
    2. Where, in such case, after the report of the apportionment committee had been confirmed, the commissioners ordered additional lands to be assessed, and caused such assessment to be placed on the duplicate for collection : Held, that the several parties whose lands were thus illegally charged, might properly join in an action to restrain thé collection of the assessment.
    Motion for leave to file a petition in error to reverse a judgment of the District Court of Highland county.
    The defendants in error, ten in number, being the several-owners of certain parcels of land ordered to be assessed by the commissioners of Highland county to pay the expense-of an improved road, brought their action in the Common-Pleas of that county, to restrain the collection of the assessment. The road was constructed by order of the commissioners, under the act of March 29, 1867, as amended by the acts of March 31 and May 9, 1868 (S. & S. 671). The-committee appointed to lay out the road, make the necessary surveys, etc., reported in favor of the improvement,, and returned a schedule of the lands they found would be benefited by and ought to be assessed to pay the expense of the same. The road was thereupon ordered to be constructed, and a committee was appointed to apportion the estimated cost of the work upon the lands so reported for .assessment. This committee having discharged that duty, filed their report December 13, 1869. The report was excepted to, and the parties iu interest having been heard, the report was confirmed in June, 1870. The assessment so made was divided into five equal installments, of which the first two were placed upon the duplicate for 1870 for collection, and the remaining installments were ordered to be paid, one in one, one in two, and one in three years. None of the lands of the plaintiffs in the original action were embraced in the assessment thus made. The tract owned by Pope, one of the plaintiffs, was among the lands reported by the committee of viewers as a lot which would be benefited by the improvement, and which ought to be assessed, but it was not included in the report of the apportionment committee, and, with this exception, none of the lands belonging to the respective plaintiffs were included in the report of either committee. In March, 1872, after the work had been done, and nearly two years after the report of the committee of apportionment had been confirmed, the commissioners made an order directing the lands of the plaintiffs, described in their petition, to be included in the assessment roll of the lands ordered to be assessed to pay the expense of the improvement. The county auditor accordingly placed the plaintiffs’ lands upon the special duplicate of that year, together with the lands formerly ordered to be assessed; the amount thus charged upon each of the plaintiff’s lands being fixed by the order of the commissioners.
    To the original petition averring these facts, the defendants below demurred, and assigned under two heads as cause of demurrer, in substance, that the petition did not state facts sufficient to constitute a joint cause of action in favor of the plaintiffs, or a cause of action in favor of either of them.
    The case having come by appeal to the District Court, the demurrer was in that court overruled, and judgment rendered perpetually restraining the treasurer of the county, who, together with the auditor and the commissioners, were made parties defendant, from collecting the assessment.
    On behalf of the plaintiffs in error it is now insisted :
    1. That the assessment complained of was legally made.
    2. That, if illegally made, the plaintiffs below had no joint cause of action.
    
      Harrison & Olds, for the motion:
    Where a statute directs a public officer to do an official act, regarding the rights and duties of others, in a certain time, without any negative words restraining him from doing it afterward, the naming of the time will be considered as directory as to him and not as a limitation upon his authority. Pond v. Negus, 6 Mass. 230; People v. Allen, 6 Wend. 486; Hooker v. Young, 5 Cowen, 269; Stevens v. Breatheven, Wright, 733; Pugh v. Corwine, 10 West. Law Jour. 79; Smith on St. & Const. Law, sec. 670.
    Where the allegations of a petition show no joint cause of action in favor of all the plaintiffs, neither can recover. Bartges v. O’Neils, 13 Ohio St. 72.
    
      H. L. Dickey, contra.
   Stone, J.

Upon a careful examination of the statute we are satisfied the action of the commissioners, in ordering the assessment of the plaintiffs’ lands, was unauthorized.

In the course of the proceedings under the act referred to, the commissioners are required to appoint two committees. The first is to examine and report, among other things, an estimate of the cost of the proposed improvement, and the lots or lands which will be benefited, and ought to be assessed to pay for the same. Such report being made, and the other requirements of the statute being complied with, the commissioners are authorized, if in their opinion public utility requires it, to order the improvement to be made, “which order” the act provides “shall state the kind of improvement to be made, . . . . and the lands which shall be assessed to pay the expense of the-same.”

Such order being made, it thereupon becomes the duty of the commissioners to appoint the second committee-. This committee is required, upon actual view of the premises, to apportion the estimated expense of the improvement “upon the real property embraced in the order aforesaid,” and report the same to the county auditor. The-apportionment is not made according to any fixed rule, but according to the benefit to be derived from the improvement. The execution of the power involves the exercise of judgment and discretion, and being for this reason peculiarly liable to abuse, it is the plain intent of the act to give all parties whose lands are thus sought to be charged a reasonable opportunity to be heard before the adjustment is finally made. To this end, upon the return-of the report of this committee, the county auditor is required to “give notice of it” by publication in some newspaper published and of general circulation in the county,, and in like manner to give notice, for at least three consecutive weeks, of the time when the commissioners will meet at the office of the county auditor to hear the same. If, at the time appointed, exceptions have been filed to the report, the parties interested have an opportunity to be heard. Witnesses may be examined, and, as the result, the report may be confirmed as made, or it may be changed or referred to a new committee of apportionment. In the-latter case the new committee are to make their report as in the case of the former committee, upon actual view of the premises. Upon the return of their report, the same notice is to be given, and the parties in interest are to have-like opportunity to be heard.

The terms “such final order,” as used in section 5 of the act, plainly refer to the order made by the commissioners, as previously provided in the same section, directing the improvement to be made and designating the lands-ordered to be assessed. After that order is made, it may,, in a proper case, be changed by adding thereto other lands but such addition must be made, if at all, before final action is taken by the committee of apportionment; for by the express provisions of section 6, that committee is required, upon actual view of the premises, to apportion the-expense of the improvement upon the lands embraced in the order. The commissioners are also authorized, as we-have seen, to change the report of the committee of apportionment, but whether the same be changed or not,, their action confirming the report is final, and exhausts the jurisdiction of the commissioners with respect to the-assessment. That action is to be entered of record, together with the report as confirmed. The report thus confirmed and recorded is required to show how the estimated expense has been apportioned upon the lands ordered to be assessed, and is the evidence upon which the auditor is to-act in placing the assessment upon the duplicate.

To hold that the commissioners have power, after all this has been done, to bring in additional lands and assess them at their discretion, would violate not only the necessary implications, but some of the express provisions of the act, and defeat the object of some of its most salutary requirements.

A majority of the court are of opinion that the parties,, whose lands were thus illegally assessed, properly joined in the action to obtain the equitable relief prayed for. . The. lands of each were sought to be charged for one and the same purpose, and in the same manner, by the action of public officers proceeding under color of lawful authority. The rights of each depended upon the same question. The asserted authority, if illegal as to one, was illegal, as to all-The case, therefore, in the opinion of a majority of the court, is one of which, under our former practice, a court of chancery had jurisdiction to prevent a multiplicity of suits, and one which may well be sustained under the, at least, equally liberal provisions of the code. Code, sec. 37; Matheney, for himself et al. v. Golden, 5 Ohio St. 361.

While I am not entirely satisfied with this view, which, is concurred in by my brethern, I concur, so far as concerns the present case, in the result to which it leads. Under the statute giving jurisdiction to the courts of common pleas to enjoin the collection of taxes illegally assessed, the original petition unquestionably stated a good cause of action as to each of the plaintiffs. ' The demurrer interposed by the defendants can only be regarded as assigning the statutory cause of demurrer — that the petition did not state facts sufficient to constitute a cause of action. Of the six causes of demurrer allowed by the code, no other was assigned. Whether the plaintiffs properly joined in the action or not, and whatever upon this subject may be the rule in actions for the recovery of money only, the demurrer was, in my judgment, in the present case, properly overruled. The defect reached by the demurrer, if such defect existed, was not waived by a failure to either demur or answer. It was equally fatal at any subsequent stage of the case. A judgment recovered in a ease in which the pleadings disclose no cause of action can not of course be supported. The alleged irregularity here insisted upon does not, in my judgment, constitute a defect of that character. It has relation to convenience in the presentation and trial of the issues, rather than to the ultimate rights of either party. It is at most a misjoinder of several causes of action of the same character, in favor of several parties, all seeking the same equitable relief. Such irregularity does not necessarily operate to the prejudice of the defendant, and is waived if the objection be not taken at the proper time before judgment. Barnes et al. v. City of Beloit, 19 Wis. 93. Motion overruled.  