
    No. 365.
    No. 167.
    Jacob Bowersox and William S. McMeen v. The Commissioners of Seneca County, James Watson et al. William Fisher v. The Commissioners of Logan County, J. N. Wilgus et al.
    
    1. There is no appeal to the court of common pleas from orders made by boards of county commissioners appropriating private property for public drains, or free turnpikes, or from orders assessing the costs and expenses of such public improvements upon lands specially benefited thereby.
    2. The statutes, in such cases made and provided, make the necessity and propriety of such orders to depend upon the opinions of the county commissioners.
    
      3. Under section 18, of the commissioners’ act, passed March 12, 1853 (S.. & C. 243), appeals are allowed from decisions of hoards of county commissioners made only in cases founded upon claims and demands against the county in its quasi corporate capacity.
    No. 365. Error to the court of common pleas of Seneca-, county. Beserved in the district court.
    No. 167. Motion for leave to file a petition in error to reverse the judgment of the district court of Logan county.
    Case No. 365 is as follows :
    On the 12th of November, 1867, the board of commissioners of Seneca county, upon the petition of James S. Watson- and others, located, established, and ordered to be opened, and constructed, a certain county ditch in Pleasant township,, in Seneca county, and assessed certain sums of money against plaintiffs in error, as their portion of the costs and expenses, of locating the same, and ordered them to open and construct certain portions of the ditch.
    From that order and assessment plaintiffs in error appealed to the court of common pleas. At the May term, 1868, of the common pleas, upon the motion of defendants in error, the? appeal was dismissed by the court. The plaintiffs then filed their petition in error in the district court, to reverse the.order of the common pleas dismissing the appeal, and the-case has been reseiwed to this court for decision.
    Case No. 167 is as follows:
    On the 7th of March, 1870, a number of land-holders filed with the commissioners of Logan county a petition for what is known as the Bellefontaine and Jerusalem-Free Turnpike Extension. The commissioners sent out viewers as the law directs, who made their report, and on the 27th of July, 1870, the report was confirmed by the commissioners, and the improvement ordered to be made. On the 10th of" August, 1870, the plaintiff in error appealed from the decision of the county commissioners to the court of' common-pleas. At the October term, 1870, of said court, on motion of the defendants, the appeal was dismissed, and judgment for costs rendered against the plaintiff in error. He then filed a petition in error in the district ceurt, and the decision of the common pleas was affirmed. The plaintiff asks leave to file a petition in error to reverse these decisions.
    
      N. L. Brewer, for Bowersox and McMeen:
    An appeal lies to the court of common pleas from the order of the board of county commissioners establishing the ditch, and making the assessment against plaintiffs in error for a portion of the costs and expenses of such location, and requiring plaintiffs in error to construct certain portions of the ditch.
    The language of the commissioners’ act (sec. 18, S. & C. 243, 247) is broad and comprehensive, clear and unequivocal, and general in its terms. Any person may, m any case, feeling himself aggrieved by the decision of the county commissioners, appeal to the court of common pleas. An appeal is a fundamental principle of our jurisprudence.
    We are not without precedent: Shepherd v. Commissioners of Darke County, 8 Ohio St. 354; Commissioners of Clermont County v. Robb et al., 5 Ohio, 490.
    If the words of said section 18, or words of like import, liad been incorporated into the statute prescribing the manner of locating and establishing county ditches, it would, •of course, be at once conceded that an appeal would lie. When the law was enacted regulating the establishment of •county ditches, section 18 being then in full force, it became virtually a part of that law.
    If it was the intention of the legislature to provide, that -the decision of the board of commissioners, in the establishment of a county ditch, was final and conclusive, why did they not make the decision of the township trustees, in a township ditch, final and conclusive also ? These boards are composed of the same number, are elected with the ¡same powers in their respective territories, and are equally •competent.
    But, it may be asked, why does the statute regulating the action of the trustees provide for an appeal to the probate court, while no provision is made in the act for the establishing of a ditch by county commissioners? The answer is simple and plain, — there is no general statute allowing appeals from the decisions of the trustees to the probate court, while there is this general statute allowing appeals from the decision of the commissioners, in any case, to the common pleas.
    The board of commissioners, in determining the many questions which the law makes it their duty to decide, must, of necessity, exercise judicial power. This court, in the cases already cited, has determined that they do exercise judicial functions. And they exercise judicial functions in the establishment of a county ditch.
    If the decision of the commissioners went no further than to find that the ditch is demanded by and will be conducive to the public health, convenience and welfare, it might be claimed, with some show of reason, that it was but the exercise of the right of eminent domain — a right claimed to be political rather than judicial; but they pass beyond this point; they assess upon the owner of the land a portion of the cost and expense of locating the ditch; they compel the owner of the land to open and construct a certain portion of the ditch. This has the force and effect of a judgment, and every element of a formal legal procedure.
    Suppose that it is but the exercise of the right of eminent domain, does it necessarily follow that the legislature could or did not grant an appeal for that reason ?
    The legislature delegated the power to exercise that right to the township trustees, in the case of a township ditch, yet it provided for an appeal from their decision to the probate court of the county.
    The board of county commissioners exercise that power in the location and establishment of a public highway, yet the legislature have provided for an appeal in such cases; and why not in this ?
    It is true, that if an appeal lies from an order locating a ditch, an appeal would also lie to an order refusing to locate, and that practically the question of the necessity for the ditch depends upon the judgment of the court of common pleas. To what tribunal could that question be more safely committed ?
    But the question is asked, — in such case how is the court to ascertain whether such ditch is necessary? A jury of twelve men constitute an element in that court, and, upon the-question of necessity, would view the premises and pronounce an impartial verdict.
    It is true the statute provides for a party a remedy for compensation for land appropriated and damages sustained ~ yet it does not secure to the party the same advantage or equivalent as an appeal.
    I agree with defendants’ counsel, that if an appeal from the-order establishing the ditch be entertained, that an appeal must also lie from any other decision which the county commissioners may make in executing the provisions of the ditch-law. An appeal lies, from the order as a whole, or from any of its parts.
    
      G. E. Seney for the commissioners of Seneca county, and others:
    The question in this case is, whether an appeal lies to the-court of common pleas, from an order of the county commissioners establishing a ditch.
    It is claimed that an appeal is authorized by section 18 of “An act establishing boards of county commissioners, and? prescribing their duties.” S. & C. 243.
    The letter, if not the spirit, of this section, seems to authorize an appeal to the court of common pleas from a/ny decision made by a board of county commissioners.
    The validity of this statute may be well questioned. Logan Branch Bank, ex parte, 1 Ohio St. 432.
    The appellate jurisdiction of the court of common pleas,, like the appellate jurisdiction of the supreme court, is provided by law. If the appellate jurisdiction of the supreme-court extends only to the judgments and decrees of courts organized in pursuance of the provisions of the constitution,, then, for the same reason, the appellate jurisdiction of the-court of common pleas is confined to the judgments and decrees of such cou/rts.
    
    To give the appellate court jurisdiction, upon appeal, the decision appealed from must be thejudgment or decree of a court, or of an officer, board, or tribunal exercising judicial functions. The board of county commissioners is not, in any sense, or for any purpose, a court.. As a board, it exercises no judicial power. Its decisions, upon any question, in any case, have neither the effect nor operation of a judgment or decree. The members are' not elected as judges, nor are they clothed with the power of a judge, or a court.
    But it may be said that, although the board of county commissioners is not clothed with judicial power, yet it exercises such power in determining some of the many questions which the law makes it the duty of the board to decide. If, in the determination of any particular question, the board of county commissioners exercise judicial power, it may be that, from such decision, an appeal lies under section 18. But in cases where no such power is exercised, certainly no appeal •can be had.
    In establishing a ditch under the provisions of “ An act to provide for locating, establishing, and constructing ditches, drains and watercourses” (S. & S. 313), the county eommissioners exercise no judicial power. No provision is made for a judicial investigation of the question whether the ditch is necessary, or is demanded by, or will be conducive to, the public health, convenience or welfare.
    In determining the question whether a ditch is necessary, the commissioners exercise a political power, and the courts have nothing to do, whatever, with the decision of the question. It is true, they may arrest any attempt at an abuse of this power, but as to the question of necessity itself, the statute makes the commissioners the sole and exclusive judges.
    See McMicken v. City of Cincinnati, 4 Ohio St. 394; Giesy v. C. W. & Z. R. R. Co., 4 Ohio St. 325.
    Again: In establishing a ditch, the county commissioners «exercise the power of eminent domain. Indeed, the order establishing a ditch is, in and of itself, an exercise of this power. Certainly, no one will pretend that the power of eminent domain is a judicial power. This court held, in both of the cases to which we have referred (4 Ohio- St. 324 and 394), that the power of eminent domain is a political power.. And held, also, that its exercise, under the constitution, has-been entrusted to the general assembly, or the agents of that body, while the courts are only invested with authority to determine the amount of compensation to be paid.
    We submit, therefore, that the appeal authorized by section 18 of the act referred to, conflicts with sections 1 and 10 of article IV. of the constitution. If, however, in this judgment we are mistaken, then we urge, that the appeal authorized by section 18 is limited and confined.to cases in the decision of which judicial power is exercised.
    The statute under which ditches are established, is a special statute — conferring special power. Such a statute is to be construed strictly. Its provisions must .be followed with technical exactness.
    The statute itself makes no provision for. an appeal from, the order of the county commissioners establishing a ditch. Upon this ground alone, it may be well said that no appeal lies. Street v. Francis, 3 Ohio, 278; Little Miami R. R. Co. v. Whitacre, 8 Ohio St. 590; Hueston v. Eaton and Hamilton R. R. Co., 4 Ohio St. 685.
    It is to be observed, also, that no provision is made for perfecting or prosecuting an appeal.
    If an appeal lies from an order establishing a ditch, it follows necessarily, that an appeal lies from an order refusing-to establish a ditch. So that the question whether “ a ditch is necessary, and has been properly located, and is demanded by, or will be conducive to, the public health, convenience or welfare,” depends, practically, upon the judgment of the court of common pleas, and not, as the statute provides, upon the opinion of the county commissioners. But how is the court to ascertain whether the ditch is necessary ? In this respect, no provision is made.
    Again: The statute provides for him who is aggrieved by the order establishing a ditch, a remedy different from an appeal. While it makes the order of the commissioners final, it, at the same time, authorizes such party to make application for compensation and damages, and requires the same to be assessed by a jury, under the instructions of a court, and requires, also, the payment of the sum assessed.
    But, if this appeal is entertained, upon the same ground an appeal from any other' decision which the county commissioners make in executing the provisions of the ditch law, must be sustained.
    But, again: If the statute establishes two jurisdictions— original and a/pgoellate — for the decision of such questions as may arise, then an appeal lies also from the proceedings of the probate court in assessing compensation and damages. That the jurisdiction of the probate court in such case is final, is certainly beyond all controversy or doubt.
    
      John A. Price, for Fisher:
    The case is appealable. The right of appeal exists under see. 18 of the commissioners’ act (S. & C. 247), regulating appeals generally from county commissioners. There is nothing in any statute that exempts such a case as this from the operation of said sec. 18.
    When the commissioners are acting judicially, and make an order, an appeal lies from that decision. When they are exercising a mere discretionary power, such as ordering a bridge to be built, no appeal lies. The county commissioners may at any time, order a bridge to be built. Their right to make the order does not depend upon a certain state of facts. Their jurisdiction exists at all times. There is nothing for them to-try. But ordering a road to be improved is a very different matter. Such an order cannot be made until a certain jurisdictional fact exists, to wit: “ until a majority of the resident landholders of the county whose lands are reported as benefited, and ought to be assessed, shall have subscribed the petition ” for said improvement. Their right to make the order depends upon a certain state of facts. There is a case fon them to try. In short, they are acting judicially.
    
      But we are told that the law provides no machinery to carry out the object of the law, if an appeal lies to the common pleas.
    If the case comes within the terms of the statute regulating appeals, and there is nothing that expressly exempts it from the operation of that statute, then an appeal lies, although the legislature has failed to provide the adequate machinery.
    If the court decides adversely to the road, then no machinery is required; if it decides in favor of the road, affirming the decision of the commissioners, can it not, by virtue of its own inherent power, send the case back to the commissioners, where there are ways and means for carrying the order into effect % The court of last resort will certainly be slow in arriving at the conclusion that there is no appeal in such cases, for the consequences will be disastrous.
    
      Kerncm do Kerncm, also, for Fisher:
    The right of appeal from a decision of the county commissioners is provided by the commissioners’ act. S. & C. 247, sec. 18. There is no law now in existence which repeals, by implication or otherwise, this statutory right.
    
      Lawrence & Howenstine, for Wilgus and others:
    1. There is no law authorizing the appeal.
    The appeal authorized by sec. 18 of the commissioners’ act is limited to “any case” and does not extend to every subject or matter over which the commissioners have jurisdiction.
    The term “ any case,” ex vi termini, imports qnly a money claim ex contractu involving a county liability which, if sued -on between persons, would constitute an action or “ case ” in court. Any other construction must sanction appeals from orders on any subject, which would enable any tax-payer to -defeat any purpose of county government.
    Such has been its construction under this and former acts. Commissioners of Clermont County v. Robb, 5 Ohio, 490; Shepherd v. Commissioners of Dark County, 8 Ohio St. 857; 
      Commissioners of Geauga County v. Ranney, 13 Ohio St. 388.
    It has never been understood to apply to orders to levy taxes, build bridges, court-houses, infirmaries, or to general .subjects within the jurisdiction of the commissioners.
    2. An appeal is impracticable, impossible, and unnecessary.
    In a special statutory proceeding the court exercises a limited jurisdiction, and can do nothing but what is authorized, and in the prescribed mode.
    Now, if an appeal may be had, the only power the court .has is “ to hea/r cmd determine the same? Commissioners’ act, „S. & C. 247, sec. 18. This can only apply to money demamds where there may be a judgment, if, indeed, the law can, under the constitution, be operative without a jury trial.
    But no provision is made, after affirming or reversing the •order of the commissioners in a road appeal, like this, to remand it for further proceedings before the commissioners, n* to proceed in court to make the orders to levy the taxes, .make- contracts to construct the road, assess damages, apportion expenses, and the many other requisites which, by the free turnpike acts, are authorized only before the county ..commissioners.
    And because the courts could not take jurisdiction of such subjects, by force of the commissioners’ act, the road statutes and others have provided specially for appeals, and authorized a mode of procedure. S. & C. 1288, sec. 12; Ib. 1301, .see. 2; 53 C. L. 119.
    It may be objected that the object of these statutes was to give appeals to the probate court. But prior road laws specially provided an appeal to the common pleas, because the commissioners’ act did not cover the case of a road. 3 Cur-wen’s Stat. 2112; Chase’s Stat. 1854, 1917, 1942; Curwen, 171, 1672.
    The supplementary turnpike act of May 13, 1868, gives remedies inconsistent with an appeal (S. & S. 677), and expressly authorizes courts to make necessary orders for all .purposes on error or injunction, but not on appeal from •county commissioners.
    
      No appeal is necessary. If a party is assessed illegally, h6 may enjoin its levy or collection, or recover it back. Act of May 1, 1856. 2 S. & C. 1151.
   McIlvaine, J.

There is no pretence of error in these records, if the right of appeal under the 18th section of the' commissioners’ act (S. & C. 213) does not extend to cases-pending before county commissioners under the statutes authorizing the construction of public drains and free turnpikes.

Section 18 reads: “That if any person or persons shall conceive him, her, or themselves aggrieved by the decision of the county commissioners in any case, such person or persons may, within fifteen days thereafter, appeal to the court of common pleas, notifying the commissioners of such appeal at least ten days before the time of trial, which notice shall be in writing, and delivei’ed personally to the commissioners- or left with the auditor of the county, and the said court shall, at its next term, hear and determine the same, which decision shall be final.”

It is not claimed that an appeal lies, even under the broad terms of this section, from every order which county commissioners are, or may be, authorized to make; And thediificulty is to determine, by a general rule, what cases areappealable and what are not.

We are of opinion that appeals under this section can be taken to the court of common pleas -from decisions made-only in matters of claim or demand against the county in its quasi corporate capacity.

The commissioners, although they be the officers of the-county, acting in its interest, are made the tribunal to adjudge cases of claim against the county, and in such cases-appeals ought to be allowed with great facility, as they are,, under this section.

It must be observed that the only notice of appeal required to be given by the appellant is to the commissioners. The object in giving notice is to inform parties interested in' the matter, adversely to the appellant, of the proceedings-instituted. It may be inferred, therefore, that the legislature intended to charge no one with such notice except parties represented. by the commissioners; and as the commissioners represent no one but the county in its corporate capacity, it follows that the notice, and consequently the appeal, can affect no other person. It is clear that the court of common pleas cannot acquire jurisdiction of a person who-has no notice, either actual or constructive, of the pendency of the proceeding in that court.

The county, in its corporate capacity, has no special interest in the improvements made under the ditch and road laws. It is the general public, for whose benefit these improvements ai’e made, and the general public is represented by the petitioners named in the statutes; and notice of the appeal under section 18 is not given to them.

It seems plain to us, that in a case in which a person (other than the county) has a special interest in the decision of the-commissioners, adverse to the interest of the appellant, no-appeal can be sustained under this section as against such, person.

The legislative intent is also indicated to some extent in contemporaneous and subsequent statutes. This 18th section is a copy from the act of March 5th, 1831; and on the 14th day of the same month the same legislature passed an act for the establishment of State and county roads under the orders-of county commissioners, in which the right of appeal from their decisions to the court of common pleas is expressly provided for. And the same provision has been usually made in statutes conferring upon the commissioners the power of -making or ordering public improvements. None,, however, is found in the statutes under which the commissioners acted in these cases.

Again, the duties imposed upon the commissioners by the-drain and free-turnpike laws are purely political in their character, and not judicial. The necessity and propriety of these improvements are ascertained by the opinions of the commissioners, and the opinions or judgments of the judges of the courts of common pleas ought not to be substituted without expressed or clearly implied authority. For we take it, that if an. appeal lies from an order granting an imimprovement, it also lies from a refusal to grant it. And fin the latter case, if the court, on appeal, should grant the order, we have a case in which private property is taken for a public use, and public burdens imposed, under a doubtfully implied delegation of power. And that, too, without any means provided for carrying the orders into execution.

We find no error in these records.

Judgment affirmed in the former case, and leave refused fin the latter.

Scott, C.J., and Welch, White, and Day, JJ., concurred.  