
    George Steese et al. v. Schuyler Oviatt, Treasurer, etc. R. P. Henry, for himself et al. v. Schuyler Oviatt, Treasurer, etc.
    1. The jurisdiction conferred upon the courts of common pleas by the act of April 10, 1856 (S. & C. 1151), to “restrain the collection of taxes illegally assessed,” is an equitable jurisdiction, and is to be exercised upon equitable principles.
    2. The collection of an assessment made to pay the expense of a street improvement will not be enjoined by reason of irregularities in the proceedings where, under section 550 of the municipal code, the amount of such assessment is, notwithstanding such irregularities and defects, properly chargeable against the property assessed.
    3. Where an assessment for street improvements is made, pursuant to section 577 of the municipal code, payable in deferred installments, interest upon such installments to the time they respectively become due may properly be included in the assessment.
    Error to the District Court of Summit county i
    The plaintiffs in error in these cases brought their respective actions in the Common Pleas of Summit county, to restrain the collection of assessments, made by order of the city council of Akron, to pay the expense of improving Main and Market streets, in that city. They alleged that the city failed in each ease, in the course of the proceedings, in several particulars, to comply with the provisions of the statutes, and claimed, as a consequence, that the respective assessments were.illegally made.
    The assessment in question, in the second case, was made payable on or before August 20, 1870. If not then paid, the ordinance required the same to be paid in three annual installments. The amount of each installment, charged by the foot front upon the abutting lots, was fixed by the ordinance and included, iu the aggregate, interest on the deferred installments, to the time they respectively became duo, at the rate at which the city was authorized to bor
      row money, in anticipation of the collection of the assessment, to pay the cost of the improvement.
    The unpaid assessments were in both cases certified to the county auditor, with a penalty of ten per centum added thereto, and, with the penalty attached, were placed on the county duplicate for collection.
    The remaining facts are sufficiently stated in the opinion of the court.
    Upon appeal to the District Court, the petition in each ■case was dismissed, and to reverse these judgments the present proceedings in error are respectively prosecuted.
    
      Hall § Paulson, for George Steese et al.:
    1. The ordinance should have been read three times before its passage. 66 Ohio L. 166, sec. 98.
    2. The notice to contractors should have been published for four weeks in each of two newspapers, before the bids were opened. 67 Ohio L. 80, sec. 562. Such notice is essential to jurisdiction. Welker v. Potter et al., 18 Ohio St. 85; Sessions v. Crunkilton et al., 20 Ohio St. 349; Hoyt v. Saginaw, 19 Mich. 39.
    3. The profile should conform to grade ordinance. 67 Ohio L. 81, sec. 563.
    4. Only one assessment can be made, though payable in installments. 66 Ohio L. 247, see. 577.
    If payable in installments, the council should have so ■determined before work was commenced at least, if not before the contract was entered into (67 Ohio L. 81, sec. 562), then plaintiffs would know how many payments they would have to make, and when they were payable; but the city gave only thirty days to pay the first assessment, and required payment of the second within twelve days after levy made, and before even that short period had elapsed, and without giving the plaintiffs the usual notices in writing that such assessment had been made, and when the same was payable, ordered the clerk to certify it to the auditor, with ten per cent, added as a penalty, although there was no authority whatever for certifying penalties in any case (66 Ohio L. 243, sec. 554), and although the assessment itself could only be so certified after the time of payment specified in the ordinance had expired. 66 Ohio L. 249, see. 542.
    5'. The certifying of unpaid assessments on the last day of payment to the auditor was premature. The plaintiffs were entitled to the whole of that day in’Avhieh to make payment.
    . (The same points made and authorities cited for plaintiffs in Upington v. Oviatt, applicable to this case, were substantially insisted upon by counsel.)
    
      Tibbals $ Hanford, for Robert P. Henry,
    requested the court to make use of their brief in Upington v. Oviatt, so far as applicable; and claimed that the resolution was not' read three times, as required by law, but only once; that the notice given of the passage of the resolution was insufficient, being too indefinite and uncertain; that the assessment was in excess of the cost of the improvement; that there was no provision of the statute allowing interest on deferred installments; and, although the statute gives the council authority to borrow money sufficient to pay the estimated cost and expense of the improvement, and to issue bonds, drawing eight per cent, interest, yet, in this case, it does not appear that money was borrowed or bonds issued, but that the assessment was in fact made to pay the cost and expense of an improvement, not to pay borrowed money or bonds drawing interest (see Corry v. Gaynor, 22 Ohio St. 597); that the plans and profiles were not on file nor referred to by the resolution. Ohio L. 1869, p. 245, sec. 563.
    And that the tax ordinance was illegal, because the yeas and nays were not called upon its passage, nor recorded in the journal of the council.
    
      H. W. Stewart and H Oviatt, for defendant:
    It was not necessary, to give jurisdiction, that the advertising for bids should be for the period of four full weeks. The passage and publication of the declaratory resolution, as required by sections 563 and 564, municipal code, gives jurisdiction.
    By a clerical error, the ordinance made a cut of five feet deeper at one point and a fill at another point five feet more than the profile showed, but the work was done according to the profile.
    The fact that the tax, together with the penalty, was certified to the auditor’, was not fatal, and did not relieve the plaintiff from paying the assessment less the penalty.
    An injunction should have been sought before expense was incurred. 13 Barb. 567; 49 Barb. 57; High on Injunction, secs. 784, 787, 789.
    In the second case, the fact that the vote by ayes and nays was not recorded is not fatal. Section 97 of. the municipal code is directory merely. Miller v. Gibson, 3 Ohio St. 479; 9 Paige’s Ch. 24; Dillon on Mun. Corp., see. 229.
    The council has legal right to make assessments payable in installments. Mun. Code, secs. 577, 653. And interest at eight per cent, may be charged. Code, sec. 666 (as amended), 67 Ohio L. 86.
    As to other points applicable to this case, reference is made to argument in Upington v. Oviatt.
    
   Stone, J.

These cases were argued and submitted in connection with the preceding case of Upington v. Oviatt. With one or two exceptions, the effect of which is to be here considered, the objections taken to the proceedings of the city council, resulting in the assessments now in question, are similar to those insisted upon in that case, and present questions not, in principle, to be distinguished from those there considered and decided.

Of the irregularities in the proceedings of the council, now insisted upon in argument, one, quite as important as any other, is common to both these cases. In neither were the requirements of the statute, relating to advertising for proposals for doing the work, literally, or, in our judgment, substantially, complied with. In the first case, the notice was published only three, instead of four weeks, as required by law. In the second case, the published notice referred to the plans and specifications, and gave no information otherwise in relation to the character or extent ■of the work; and, although this notice was published four weeks prior to March 28th, when, the bids were to be opened and the contract awarded, no plans or specifications were prepared, nor was the character of the proposed improvement fixed by ordinance, until the 7th of the same month, and only, twenty-one days prior to the expiration of the time within which bids were to be and were received.

In both these cases, however, the assessments were made "to pay expenses actually incurred in the improvement of the respective streets; and in both, the improvements were made in pursuance of ordinances which prescribed the character of the improvement, and provided for charging the expense thereof upon the adjoining lots. These ordinances were, in both cases, adopted by the council and ■duly published before the work was done or the contracts let.

While, therefore, the city council failed to so comply with the provisions of the statute as to give to the assessments subsequently made conclusive legal effect, they were nevertheless permitted without interference, and, so far as ■appears, without objection, on the part of adjoining lot-owners, to proceed to let the contracts and procure the work to be done. And the work having been done, and the contemplated improvements made, new relations between the- parties arose. Under the provisions of sections 550 and 551 of the municipal code, each of the adjoining lot-owners become liable for his just proportion of the necessary expense of the improvement, and to that extent the ■assessment made in pursuance of the ordinance under which the work was done, became enforcible as a legal -charge against the property of each.

It is not claimed that the expense in these cases actually incurred in making the respective improvements are not justly and ratably charged upon the abutting lots, as authorized by the law, or that any property subject to-assessment has been omitted. Nor does it appear that the expense of the work thus in each case charged upon the adjoining property exceeds the reasonable cost or value of the improvement, or that the plaintiffs have in that respect been prej udiced by the failure of the city, in any of the particulars complained of, strictly to conform to the provisions of the statute.

In these circumstances, except to restrain the collection of the penalty, no ground is presented for the interference-of a court of equity.

The act of May 1, 1856 (S. & C. 1151), gives to the courts jurisdiction to restrain the collection of taxes illegally assessed; but the jurisdiction- thus conferred is an equitable jurisdiction, and is to be exercised upon equitable principles. Proceeding under the statute, the party complaining is not required to show a case of threatened irreparable injury, or the absence of a remedy by ordinary legal proceedings; but he must exhibit a case in which, upon the merits, he is entitled to the equitable relief demanded.

In these cases, notwithstanding the irregularities complained of, the plaintiffs’ property was, under the statute, clearly subject to be charged to pay the expense of the respective improvements. The assessments were made by competent authority, and, although irregularly made, it does not appear that any injustice was done.

The assessment in the second case being made payable in deferred installments, interest on such installments to the time they respectively became due was, we think, properly included in the aggregate amount assessed. The assessments represented the fund applicable to the payment of the expense of the improvement. It was in the discretion of the city council to make the aggregate amount thus charged upon the adjoining property payable in deferred installments, and to provide, as was done in this case, for the payment of the cost of the improvement, by issuing the bonds of the city, in anticipation, of the collection of the assessment. Municipal Code, sec. 665.

The money collected upon the assessment is to be applied to pay the bonds thus issued, and to no other purpose. In such case, interest upon the deferred installments to the time they respectively became due, at the rate necessary to meet the interest accruing on the bonds, becomes a necessary part of the expenditure pertaining to the improvement.

For the reasons stated in Upington’s ease, the judgment of the District Court in these cases will be reversed, and judgment entered in each case perpetually enjoining the collection of the penalty charged upon the respective assessments. The injunctions heretofore granted, in so far as they restrain the collection of th’e assessments, exclusive of the penalty, will be dissolved.

Judgment accordingly.

Day, C. J., MoIlvaine, Welch, and White, JJ., concurring.  