
    Kent v. Perkins.
    1. The act of 1868 (65 Ohio L. 155), in relation to making and widening ditches, is a valid enactment, as applied to cases in which damages are not claimed ; and a proceeding for the purpose of widening any such ditch might he instituted hy one petitioner, though the ditch was confined to his own lands.
    2. A report or finding of a jury under that act is invalid, where such report ■ or finding was not unanimous.
    3. Lands in an incorporated village may he assessed hy the trastees of a township in which the village is situated, for the cost of widening a ditch within the township, but outside of the village limits ; and the fact that the village has a hoard of health will make no difference.
    Error to tbe District Court of Portage County.
    On September 4, 1S73, John Perkins filed in the office of the clerk of Franklin township, Portage county, his petition, asking that a certain ditch and drain in that township be cleaned, widened and deepened; in which petition it was stated that the public health and convenience required that such improvement be made, and that cross drains and ditches from the lands of Marvin Kent and Henry A. Kent empty their waters into the first-mentioned ditch and drain, thereby greatly benefiting their lands.
    At the time the petition was filed, the petitioner gave bond to the acceptance of the township clerk, and also gave notice to the persons sought to be affected by the proceeding, as required by statute.
    No damages were claimed by any person.
    After an order had been made by the township trastees, to the effect that it would be conducive to the public health to have the ditch cleaned, and that the work should be done and expense borne equally by Perkins and Marvin Kent, the proceeding was appealed to the probate court, in which court a jury was impaneled and trial had. On such trial (March 13, 1874), it was found that the lands of Marvin Kent and Henry A. ■Kent were wholly within the corporate limits of the village of Kent, which village is within said township of Franklin ; that the ditch to be cleaned, is confined to the lands of Perkins ; that no part of the ditch is within the corporate limits of the village, and that the village had a board of health. Thereupon the court charged the jury that the lands of Marvin Kent and Henry A. Kent could not be assessed for any part of the cost of the improvement, for the reason that said lands were situated wholly within the village; and Perkins excepted.
    A verdict was rendered, finding that it would be conducive to the public health, convenience and welfare to have the ditch clcaned'and widened, and that no compensation is due to any person, but the verdict was concurred in by only ten of the twelve jurors. A motion for a new trial was overruled; and thereupon the proceeding, so far as it related to' the Kents,, was dismissed by the court.
    The judgment of the probate court was reversed in the court of common pleas on a petition in error filed by Perkins ; the cause "was remanded to the probate court for further proceedings ; the judgment of the court of common pleas was affirmed in the district court, and a petition in error was filed on leave in this court by Marvin Kent and Henry A. Kent to reverse the judgments of the district court and court of common pleas.
    
      H. B. Foster, for plaintiffs in error.
    
      Rockwell Hatfield and If. Sbua/ri, for defendant in error.
   Oicey, J.

The act of May 6, 1868, “ to provide for locating, establishing and constructing ditches, drains and water-courses, and to repeal a certain aet therein named” (65 Ohio L. 155), as amended April 13, 1872 (69 Ohio L. 45), and January 27, 1873 (70 Ohio L. 14), was in force when the proceeding, mentioned in the statement of this case, was pending before the township trustees, and also while it was pending in the probate court. See Rev. Stats. § 4511 et seg.

The act in question, as amended, provided, among other things, that township trustees of any township should have power, whenever the same was demanded by, or would be conducive to the public health, convenience or welfare, to cause to be established, located and constructed, “ any ditch, drain or water-course within such township.” They had the same power to cause any such ditch to bo cleaned. A condition precedent to the exercise of this power was that a petition should be filed with the township clerk, “ by one or more persons owning lands adjacent to the line of any such proposed ditch,” or ditch to he cleaned. An appeal from the order of the trustees to the probate court, “ by any person or persons interested in the location of such ditch,” or in cleaning the same, was provided for. Provision was made for a jury of twelve men in the probate court, to whom the probate judge was required to administer an oath. The oath required the jury to view the premises along the route of such ditch, and faithfully and impartially report in writing to said court: “First. Whether it will be conducive to the public health, convenience or welfare to cause said proposed ditch, drain or water-course to be established or located,” or cleaned. “ Second. The amount of compensation due to each person in case of the location (or cleaning) of the same; and, Third. The amount of labor to be performed by each person interested in the opening and constructing (or repairing) of the same.” And, unless all the jurors concurred, the verdict was invalid. Work v. State, 2 Ohio St. 296.

The act and the amendments thereto have been repealed, and the most serious objection to those enactments has been removed. This opinion will, therefore, be confined to a statement of the conclusions at which we have arrived.

The ditch in question is confined to the lands of J ohn Perkins, and it is said the legislature could not have intended to provide for such a case, as a man has a right to make or clean a drain on his own land. Furthermore, it is said that the petition must be filed by a person owning lands “ adjacent” to the proposed ditch or the ditch to be cleaned, and that Perkins’ lands are not “ adjacent,.”' But this legislation had for its foundation the public health, welfare and,convenience, which may be promoted as well where the drain is confined to one owner as where it extends to the lands of several owners, and by the terms of the act one owner may petition. And the word “ adjacent ” was properly used as including lands through which a ditch passes as well as those lying near to the ditch. But if the word had not been accurately employed, still the intention of the legislature, as manifested in all that it has said on the subject, is what we should endeavor to ascertain, and regard being had to that, the objection is clearly untenable. True, the ditch seems to have been constructed by private enterprise ; but it has long been treated as a public ditch, and the owner of the land to which it is confined consents that it may be so regarded.

Again, it is urged that the act is 'invalid for the reason that it makes no provision for assessing damages to the owners of lands injured by the location of such ditches, and for the further reason that the provisions in respect to the jury and the mode of trial are not in accordance with the organic law, and the plaintiffs in error rely on Smith v. Atlantic, &c. R. Co., 25 Ohio St. 91, and Teeg arden v. Davis, decided at the present term. Bat here all claims for damages were waived. In many cases an act may not be wholly void, but void in part and valid in part. In such case it is incumbent on one asserting its invalidity, to show that, if enforced, it will have an unconstitutional operation as applied to him. That such statute would, if enforced, be unconstitutional in its operation under a different state of facts — as where such damages had not been waived — affords no ground for holding it to be invalid in another case where the damages were waived. This is in accordance with Bowles v. State, decided at the present term.

Finally, it is said that there was no power to assess lands within Kent, which is a village having a board of health, for any part of the expense of the proposed work. But Kent is wholly within Franklin township. The trustees, by the terms of the statute, had power to cause the construction or cleaning of “ any ditch, drain or water-course within the township,” and to impose on the adjacent lands the cost of the work. The lands of the Kents, though within the village, are adjacent to the ditch, and benefited by it. The health, comfort and convenience of the citizens of a village may largely depend on the proper drainage of lands lying beyond its territorial limits, and there may be no power to compel tbe draining of such lands except through the action of township trustees or county commissioners. Why should not any lands adjacent to such drain, and benefited thereby, be assessed for the cost of such work ? The statute makes no such limitation on the power of township trustees as is claimed by the plaintiff in error, and therefore we hold that this objection is also untenable.

Judgment affirmed.

Boynton, O. J., dissented from the third proposition of the syllabus.  