
    Board of Commissioners of Darke County v. Board of Commissioners of Mercer County.
    
      Joint county ditches — Disagreement over apportionment of cost— Submission to arbitration — Constitutionality of Sections 6540 to 6351, General Code, waived, when — Rights of landowners.
    
    (No. 14784
    Decided November 9, 1915.)
    Error to the Court of Appeals of Mercer county.
    A petition was filed on the 15th day of November, 1910, with the board of county commissioners of Mercer county, Ohio, by certain landowners, residents of that county, praying for the improvement by ditching, deepening, widening and straightening a certain described ditch, drain and watercourse in Granville and Recovery townships in that county, setting forth the necessity and benefits thereof, alleging that their lands would be benefited by such improvement, and describing the line and termini thereof.
    Such proceedings were had that thereafter the county commissioners of Mercer county found in favor of the improvement and ordered the same, constructed.
    It further appearing that these improvements would furnish an outlet ditch for land in Darke county, which drains into a ditch that would enter into the proposed Mercer county ditch, the county commissioners of Mercer county, on the 5th day of March, 1912, and before work was begun in the construction of deepening, widening and straightening the ditch in Mercer county, caused a notice to be served upon the board of county commissioners of Darke county to meet with them upon the line between Mercer and Darke counties, Ohio, for the purpose of determining how much should be paid by the commissioners of Darke county to the commissioners of Mercer county for the use, benefit and burden of such outlet ditch in Mercer county, Ohio.
    The commissioners of both counties met in joint session on the 19th day of March, 1911. That meeting was adjourned until the 25th day of March, 1911, but the commissioners of these respective counties were unable to agree on an amount that should be paid by Darke county to Mercer county for this purpose.
    Thereupon the board- of county commissioners of Mercer county.filed in the probate court of that county a petition setting forth these facts, averring that the total cost of the improvement would be about $40,000; that the ditch improvement to be constructed would drain about 21,000 acres of land in Darke county, and prayed for the appointment of four freeholders to estimate and report to the court the amount that should be justly paid by Darke county to Mercer county for the use and benefit of such outlet ditch, in manner and form as provided by Section 6545, General Code.
    Summons was duly served upon the commissioners of Darke county, who thereupon filed in the probate court of Mercer county an answer admitting the allegations of the petition in reference to the filing of the petition, the ordering of the improvements and the failure to agree, but denying that the. outlet ditch would furnish drainage for 21,000 acres of land, and praying that that court appoint two disinterested freeholders, as provided by law, to act with two freeholders appointed by the probate court of Darke county, to estimate and report to that court the amount which should be paid by Darke county to Mercer county for the use and benefit of such outlet ditch, and for such other and further relief as may be just and authorized by law.
    Thereupon the probate court of Mercer county appointed two disinterested freeholders, not residents of either county, and notified the probate court of Darke county to do likewise, which was done accordingly.
    The freeholders so appointed met as directed by statute, and found and reported to the- court the amount which should be paid by Darke county to Mercer county for the use and benefit of this outlet ditch.
    Exceptions were filed to this report by the commissioners of Darke county, which exceptions were overruled and the report approved.
    Error was then prosecuted to the common pleas court of Mercer county, which court reversed the judgment and proceeding of the probate court and dismissed the petition.
    The court of appeals reversed this judgment of the common pleas court and affirmed the judgment of the probate court.
    This proceeding in error is brought to reverse the judgment of the court of appeals.
    
      
      Mr. L. E. Kerlin and Mr. George W. Porter, prosecuting attorneys, and Messrs. Meeker & Gas-kill, for plaintiff in error.
    
      Mr. B. A. Myers, prosecuting attorney; Mr. J. W. Loree and Mr. J. D. Johnson, for defendant in error.
   By the Court.

Counsel for plaintiff in error contend that Sections 6540 to 6551, General Code, inclusive, are unconstitutional, because in conflict with Sections 16 and 19 of Article I of the Constitution of Ohio and the 5th and 14th Amendments to the Constitution of the United States.

The board of county commissioners of Darke county, having actively participated in securing the appointment of four freeholders to act as arbitrators in the manner and form as provided by the statute, is not now in position to challenge the constitutionality of the act under which it jointly, with the board of county commissioners of Mercer county, invoked the jurisdiction of that court. Tone v. Columbus, 39 Ohio St., 281.

The action of the board of county commissioners of Darke county in that behalf amounted to an agreement to submit the question in dispute to the arbitration of four freeholders to be appointed by the respective courts of Mercer and Darke counties, and, in the absence of fraud, collusion, irregularity or misconduct on the part of the arbitrators, the award must stand, regardless of the constitutionality of the act under which they were appointed.

The proceedings by which the amount that Darke county should pay to Mercer county has been determined, can in no way affect the landowners in Darke county. So far as they are concerned, it is the same as if the commissioners of the respective counties had met and agreed upon that amount. These landowners are in exactly the same situation as if a local ditch had been petitioned for and allowed by the board of county commissioners of Darke county, and they have the same right to be heard in reference to assessments. Lands not benefited thereby cannot be assessed therefor, nor can any lands be assessed more than they will be benefited thereby.

Judgment affirmed.

Nichols, C. J., Johnson, Donai-iue, Wanamaicer, Newman, Jones and Matthias, JJ,, concur.  