
    The City of Cincinnati, for the use of Ashman & Scully, v. John Bickett and John B. Purcell.
    1. A resolution of the city council awarding a contract for the improvement of a street, and directing the city auditor to enter into the contract with the bidder, is not a resolution of a “permanent or general nature,” within the meaning of section 98 of the municipal code.
    2. "Where the preliminary ordinance for the improvement of a street, and a subsequent ordinance assessing its cost upon abutting lots, are duly passed by concurrence of two-thirds of the members, it is not necessary, in order to constitute the work an improvement made by the concurrence of two-thirds of the members of such council within the meaning of section 540 of the municipal code, that two-thirds of such members should concur in the resolution awarding the contract to the successful bidder.
    3. Where a statute of the state requires a publication to be made in a “ newspaper,” in the absence of any provision to the contrary, a paper published in the English language is to be understood as intended, and a publication in a paper printed in any other language, is not a compliance with the statute.
    4. In cases under section 550 of the municipal code, where the court is authorized to render judgment against the defendant notwithstanding defects or irregularities in the proceedings of council in making an assessment for improvement, the sum “properly chargeable” against the defendant, and for which such judgment should be rendered, is not the amount of benefits accruing to him from the improvement, but that portion of the entire assessment which would have been chargeable to him, had the assessment been legally made,
    b. In order to exempt abutting lots from assessment for construction of a sower, on the ground that they are “ already provided ” with drainage, as specified in section 613 of tke municipal code, it is not enough to show that an ordinance was passed years ago, hut never carried into execution, authorizing the construction of other sewers for the drainage of such lots.
    Error, to tbe Superior Court of Cincinnati.
    This was au action brought by the city against Bickett and Purcell, to recover an assessment made upon their lots for the construction of a sewer; and Ashman & Scully, for whose use the suit was brought, were the contractors who did the work. Erom the record, it appears that the city council, on the recommendation of the commissioners of sewers of the city, on the 15th of July, 1870, adopted a resolution to make the improvement in question, and on the 7th of October following, duly passed an ordinance for that purpose, two-thirds of all the members of each branch of the common council concurring in both the resolution and ordinance. Subsequently an advertisement for bidders was inserted, for the period prescribed by law, in two newspapers published and in general circulation in the city, only one of which papers, however, was published in the English language, the other being a German paper. Ashman & Scully were the lowest bidders for the work, and the city council, by resolution which was concurred in by a majority less than two-thirds of its members, authorized the city auditor to contract with Ashman & Scully to do the work. This contract was accordingly entered into, and the work was completed by Ashman & Scully in all respects agreeably to the contract, and to the acceptance of the city engineer. The contract was reasonable and fair, and the work done and materials found were well worth the prices agreed to be paid. On the completion of the work an ordinance was duly passed by the council, two-thirds of the members concurring, for an assessment upon the abutting lots, to pay for the improvement, agreeably to an estimate of the city engineer. The lots of Bickett and Purcell abutted on the lower side of the alley, and the cellars of their houses were deeper than the sewer, so that it can not serve effectually to drain their cellars, -and is therefore less valuable to them than to others who are assessed no higher than they. The assessment was at the rate of two dollars per front foot; but whether this assessment of two dollars per front foot exceeds thepro rata amount which would fall upon these lots as their share of the aggregate cost of all the sewers constructed, or to be constructed, in the entire sewer district to which they belong, as required by the statute in such case, the record does not show. -It shows, however, and defendants insist that this is a good defense to the action, that some four or five years previously to the date of this assessment, the city council had passed an ordinance for the construction of other sewers, which would effectually drain the defendants’ lots, and render the sewer in question useless to them; and that said ordinance, although never carried into execution, is still unrepealed.
    Opon these facts the court in special term gave judgment for the defendants, and its judgment was affirmed by the •court in general term ; and the plaintiff in error now seeks to reverse the judgment of affirmance.
    The particular ground of defense upon which the court below rendered its judgment for the defendants does not appear from the record, but counsel now insist that there are four several grounds upon which the judgment of the court is maintainable. These are: 1. Two-thirds of the members of the city council did not concur in the resolution awarding the contract to Ashman & Scully; 2. One of the papers in which the advertisement for bids was published was a German paper; 3. These lots were already -provided with drainage, and therefore exempt; 4. The assessment was excessive.
    
      JE. M. Garrison, for plaintiffs in error :
    I. The improvement in this case was made under section 562 (67 Ohio L. 81), which provides that “ when a municipal corporation shall make any improvement, etc., it shall .advertise for bids for the period of two weeks in some newspaper published or of general circulation in said corporation, and two, if there are so many.” In the city of Cincinnati there are four newspapers published in the English language of general circulation in the city. Was an advertisement for bids in one English and one German newspaper a legal advertisement under said section 562? We think the intent of the law was thereby secured. Upington v. Oviatt, 24 Ohio St. 232.
    II. We claim that it does not require two-thirds of the members of the council to pass a resolution to contract. Because : 1. When two-thirds of all the members elected to-each of the boards composing the common council have concurred in a resolution declaring the necessity for the improvement, and two-thirds of all the members elected to each of the boards composing the common council have concurred in the passage of an ordinance (law) declaring that the alley be improved in accordance with the resolution, it is a compliance with the statute. This section simply means that no improvement shall be made, or in this case the sewer shall not be constructed, unless two-thirds of the members elected to council say it shall. By the passage of the resolution and ordinance council has spoken, has^ said the improvement shall be made. 2. The ordinance is the essential. Council has already concurred in declaring the necessity for the improvement and in passing a law to improve. They are fully committed to the work. Their 'action, so far as the improvement is concerned, is completed, and the question now is not, shall the improvement be made, but whom shall we employ to do the work ? It is the agreement to make the improvement that coupcil are to concur in by ordinance by a two-third vote, and not the order to the auditor to make a contract to do the work. 8. The resolution to contract is not a resolution of either a genei’al or permanent nature.
    III. The assessment was a proper charge against the defendant. Northern 1. R. R. Co. v. Connelly, 10 Ohio St. 160.
    But if the court should find the assessment informal in any material particular; that the sewer is of no use, and that it is of no direct benefit to these defendants, still we claim that section 550 (66 Ohio L. 242) authorizes a judgment for the plaintiffs. The question now is, is this “ a proper charge ” against the defendants ? "We think it is.
    1. - Because council said the defendants and the other property-owners abutting on the alley should pay for it by the feet front abutting on said sewer. Upington v. Oviatt, 24 Ohio St. 282.
    2. Because the question for the court under this section is not what benefit was conferred, but what expense was incurred in making the improvement. The Upington ease. above cited.
    3. Because this defendant had legal notice of the passage, -of the resolution and ordinance, both of which specified that ■ he would be taxed by the front foot for this very improvement. He lived right in the vicinity. He knew of the improvement. He applied for no injunction. He filed no protest. He filed no claim for damages. He stands by .and sees the improvement made, and when it is to be paid for, then it is we find him formally objecting to the work.
    4. Because the term “ proper charge,” as used in section .550, means a charge which council declared should be such, and which would have been, had the proceedings of council been in all respects regular. Had the proceedings been regular this assessment would have been a legal charge, simply because council in the exercise of its discretion made it so. Northern Indiana B. B. Go. v. Connelly, 10 Ohio St. 160.
    5. Because the question for the court is, has the contractor done the work called for by his contract according to .his contract ? If so, the cost of the work at the contract price will be a proper charge against the defendant. Steese et al. v. Oviatt et al., 24 Ohio St. 248.
    
      John G. Healy, for defendant in ei’ror:
    The sewer assessment in this case was illegal, and could ■not be enforced, because, first, the city failed to follow the ^provisions of the municipal code, sections 603, 605, 615.
    
      This sewer was constructed in Bickett alley, which was-a part of a certain sewerage district, and an assessment was levied by the foot front to pay the cost of this pai’ticular sewer. There is no law for this proceeding. Council has no power to assess the entire cost of a particular piece of sewer upon the lands by which it passes. It can only assess the pro rata share of the cost of sewering the entire district, and not the entire cost of any particular main or branch sewer.
    2. Under sections 613 and 629 of the municipal code, this property being provided with proper drainage, and with a-sewer which, when constructed, will be complete and ample, the council has no power to construct a sewer along the line of this land, which can not be used, and tax the property with its cost.
    No such injustice was ever intended, and the provisions of the municipal code creating a sewerage fund was intended to meet just such a case as this.
    3. Two-thirds of all the members elected to council did not concur in the making of the improvement and the assessing of the- cost upon the abutting lands, as provided in section 540.
    Under that section it is necessary that the determination of the council to do the work and asséss the cost upon the abutting lands shall precede the actual making of the improvement, and where the council has failed in either of these particulars it is not a mere irregularity, but goes to the power of the council to do the work and -afterward levy a valid tax.
    Now it appears to me that when this section provides that ño improvement, the cost of which “ is to be specially assessed,” etc., “shall be made unless two-thirds concur',” that it is evidently the intention of the legislature both that the determination to do the work and the determination to tax the adjacent property with the cost after it is done, must necessarily precede the doing of the work, and that not only must the two-thirds concur in the determination that it must be done, but that the cost will be so assessed after it is done. So, therefore, where the proceedings of the council fail to show that it was ever determined to assess the cost of this work upon the abutting lands previous to its actual performance, the fact that two-thirds of the members elected to council concurred in an ordinance that the work should be done is not sufficient.
    4. If the council has a right to publish in one German paper, it has a right to make all the publications in a foreign language. When the law speaks of a newspaper of general circulation, it means one published in the legal language of the state, which is the English language, and all others can only be of special and not general circulation.
   Welch, J.

We think the law did not require that the resolution awarding the contract should he concurred in by two-thirds of the members of the council. It was not a resolution of a “ general or permanent nature” within the meaning of section 98 of the municipal code. Nor was such concurrence necessary by reason of the provision in section 240 of the act of 1870 (67 Ohio L. 8), that no such improvement should be made without the concurrence of two-thirds of the members of the council, unlesson petition of two-thirds of the owners. That concurrence was sufficiently expressed in the original resolution and ordinance requiring the improvement to be made, and in the subsequent ordinance making the assessment. It was not necessary that there should he two-thirds of the members concurring at every step in the progress of the work or proceeding.

The objection that the publication of notice to bidders was made in one English and one German paper and not in two English papers, we incline to think was well taken. While there is some conflict of authorities on the question, we think it the safer and better rule to hold, as we do, that where a statute of the state requires a publication to he made in a newspaper, a paper published in the English language is to be intended, unless the contrary is expressed or indicated.

It by no means follows, however, that by reason of this defect in the proceeding the action to recover the assessment should fail. The case comes plainly within the provisions of section 550 of the municipal code (66 Ohio L. 242), which authorizes the court, in cases where such defects or irregularities occur, and.“ where expense has been incurred which is a proper charge ” against the defendants, to render judgment for the amount so chargeable against the defendants. Here the whole expense had been incurred, the work had been completed, and apparently without any objection from the defendants. ■ The object of the advertisement for bids was to procure the work to be done at fair prices. This object was fully attained without the strictly legal advertisement, so that the absence of it did not work any injury to the defendants. They were, therefore, “ properly chargeable ” with a proportion of the entire cost of the work. And this proportion is not to be measured by the amount of benefit actually received by them, hut is to be the pro rata portion of the entire cost which would have fallen upon them, or upon their lots, had no such defect existed in the proceedings. It seems to us, therefore, a plain case where the defect in the proceeding involved no necessity for a reassessment by the council, such as is contemplated in section 551 of the code, but a case where the coui't should have rendered a judgment against the defendants for the amounts assessable upon their lots.

Counsel insist that these lots were “ already provided with drainage, within the meaning of section 613 of the code,” and were therefore exempt from this assessment by the provisions of that section. We think otherwise. The mere passage of the former ordinance provided them with no drainage whatever.

The objection that the assessment was made upon a wrong basis—that it exceeded the pro rata portion of the aggregate cost of all the sewers constructed or to ho constimeted in the entire sewer district—is not shown by the record to ■be founded in fact. In the absence of such showing, we must presume that the assessment was made upon the basis •required by law.

Judgment reversed, and cause remanded for further proceedings.

McIlvaine, C.J., White, Res, and Gilmore, JJ., concurred.  