
    Ezra Bliss et al. v. William Kraus.
    1. A resolution of a city council, under section 32 of tile towns and cities act (2 S. & O. 150C), directing lot-owners “ to fill and drain their lots in such manner as shall be necessary to remove all stagnant water,” requires, by reasonable construction, not merely the removal of water then on the lots, but the work to be so done as to prevent the recurrence of stagnant water from the same causes.
    
      ’2. The power of creating municipal corporations necessarily implies authority to confer upon them such police powers as may be necessary for their internal government, and the resolution referred to, being a reasonable sanitary measure for preserving the health of the inhabitants, is not in conflict with the constitution.
    *3. Such resolution must be reasonably certain in its requirements; but where the work to be done is clearly defined in general terms, the fact of leaving to the owner, who bears the expense, the choice of the means of accomplishing the required result, will not render the resolution invalid.
    4. Where, after default of the lot-owners, the work has been done under the authority of the city, it is no objection to the assessment that the expenses have not been paid, nor that the contractor agreed to receive a valid assessment in payment. Work done on the credit of the city is, in eifect, done at its expense.
    .5. The corporation can not, by devolving the risk and cost of collecting the assessment upon the contractor, increase the burden of the owner. He can only be assessed for the cash value of the work.
    Error to the district court of Lucas county.
    
      On the 25th of May, 1858, the city council of the city of Toledo .(being a city of the second class) passed the following resolution:
    11 Resolved by the city council of Toledo, That the owners of the •following lands and city lots, io wit: [describing the property to •which the present controversy relates] be and they are hereby di-rected to fill and drain said lots in such manner as shall be necessary to remove therefrom all stagnant water. This direction shall be complied with within two weeks after the publication of the -same in the corporation paper for four consecutive weeks. And the city clerk is hereby' directed to serve a copy of this resolution ■upon the owners or agents of said lands or lots, and also procure the publication of the same for four consecutive weeks.”
    The property so ordered to be filled or drained was situated within the corporate limits of the city. On the day of the passage ■of the resolution there was stagnant water standing upon it. At times water would accumulate on all the property, and, there being no sufficient drainage, remain until it evaporated. Water stood all the year on only a small portion of the property. On the remainder, in dry times, no water remained standing, and it was in such condition that loaded teams could be driven over it.
    The bill of exceptions states, “ that before the filling was done aquatic plants only would grow, and the rule adopted by the council was to fill the lots to the line where aquatic plants would grow.”
    Notice of the passage of the resolution was published, as *the statute requires, and served upon the owners of the lots involved in this action.
    The work required by the resolution not having been performed, •on the 3d of August, 1859, the following resolution was passed by the city council:
    “ Resolved by the city council of the city of Toledo, That the city clerk be directed to advertise for proposals, for fourteen days in the •official paper, for filling and draining lots in Woodruff’s addition, etc., [describing the same property embraced in the resolution of May 25, 1858], so as to prevent water standing thereon. Bids to be by the cubic yard of earth, and for each lot separately. And the city engineer is hereby directed to set grade pegs to measure and fill by.”
    Notice of the letting was given by publishing, in the corporation newspaper, a copy of this resolution; and on the 17th of August, 1858, Edward Connolly filed with the city council a proposition to fill and drain the property (describing it), “ so as to prevent water standing thereon,” at the rate of thirty-one cents per cubic yard for each lot separately, and also proposing to deduct twenty per cent. from the above prices, providing the money should be paid in* twenty days after having each lot filled.
    No other proposition was made for doing the work, and on the 13th of September, 1858, the city council entered into a contract with Connolly, by which he agreed “ to construct for the city of Toledo the following special improvement, to wit, to fill and drain lots [describing the principal portion of the property embraced in the resolutions, and including all embraced in this suit], in all respects conformably with the resolution, for filling and draining* said lots, passed by the city council of the city of Toledo, May 25, 1858, providing for said improvement, and to be done under the direction and to the acceptance of the city civil engineer and committee on health, and to be fully completed on or before the 1st day of April, 1859.” And the city council, on its part, in consideration of the fulfillment by said Connolly of his part of the contract, “ agrees to pay, or cause to be paid to him, the sum of thirty-one cents per cubic yard of earth; said sum to be in full of all materials and workmanship expended on said improvement, to be-paid in the following manner, to wit: Whenever the said party of the first part, shall have completed said work to the acceptance of the city civil engineer and committee on health as aforesaid, said engineer shall certify the same to the city council, and the said city council shall assess the costs and expenses of said improvement upon the property liable to pay the same, and shall cause to be delivered to the said party of the first part, a copy of said assessment, and shall order or direct the owners of said property to-pay the same to said party of the first part, or his assigns, and shall authorize the said party of the first part, or assigns, to collect the same in the manner prescribed by law.” And it was further stipulated by said Connolly, “ That a valid and accurate assessment for said improvement, or any part thereof, when made, properly authenticated, and delivered to him by said city, shall be a full and absolute satisfaction and discharge of all claims by him against, the city, for all labor and materials of so much of said improvement as shall be covered by said assessment.”
    Under this contract, Connolly went on and performed his work by filling the lots where aquatic plants grew; and the rule adopted by the council was to fill the lots to the line where such plants, would grow.
    His work was completed on the 5th of July, 1859, and the council. on that day made an assessment upon the lots filled, to defray the expense. Each lot was charged with the quantity of earth placed •upon it, at the rate of thirty-one cents for each cubic yard. In this manner the several lots were assessed with their respective proportions of the expenses, ranging from three hundred and fourteen •dollars and seventy-five cents, the highest, to three dollars and -Seventy-two cents, the lowest sum.
    The assessments on these lots, as made by the city, were assigned to Connolly, and he was authorized to collect the same. Connolly afterward assigned them to Kraus, the defendant in error, who ■brought his action in the court of common pleas, to collect the same by enforcing them as a lien upon the lots.
    An appeal was taken from the judgment of the common ^pleas to the district court, where, on the facts stated, the defendants moved for judgment in their favor, which was refused; and the court, making a reduction of twenty per cent, from the amount of the assessment, on the ground that the city could charge against the lots no more than the work could have been done for in cash (and as Connolly’s proposal offered this deduction for cash, that was taken as the amount for which it might have been done), gave judgment, establishing a lien in favor of the plaintiff, upon the lots respectively, for the amount found due after this deduction was made. No penalty was awarded, and each party was adjudged to pay his own costs. The defendants excepted, and filed •the present petition in error.
    The grounds upon which a reversal of the judgment is urged are stated in the opinion of the court.
    
      M. It. & It. Watte, for plaintiffs in error, cited Dyckman v. Mayor, etc., of N. Y., 1 Seld. 439 ¡ Harbeck v. City of Toledo, 11 Ohio St. 322.
    
      Baker & Gollins, for defendant in error.
   White, J.

The statute under which the proceedings of the city •council were had, upon which the original petition was founded, is as follows:

Municipal corporations shall have power to cause any lot, within their limits, on which, or part of which, water shall at any time become stagnant, to be raised, filled up, or drained, and to cause all putrid substances, whether animal or vegetable, to be removed from any lot or lots, and may, for such purposes, from time to time, direct that such lot or lots be raised, filled up, or drained, or that such putrid substances be removed from such lot or lots by the owner or owners thereof respectively, in such reasonable time, and in such manner, as may be directed by a resolution of the proper authority of any municipal corpoi’ation; and it shall be the duty of such owner or owners, his, her, or their agent or attorney, after service of a copy of the said resolution, or after a publication of the same-in some newspaper of general circulation *in said municipal corporation for four successive weeks, to comply with the direction, of such resolution, within the time therein specified, and in case of failure or refusal to do so, it may be done at the expense of such municipal corporation, and the amount of money so expended shall be a debt due to said municipal corporation from the owner or owners of such lot or lots, in proportion to the amount expended on the lot or lots owned by him, her, or them respectively, to be recovered before a justice of the peace or other court of competent jurisdiction; and shall, moreover, from the time of the adoption of such resolution, be a lien on such lot or lots, which maybe enforced, if need be, either after or without a previous proceeding at law, by a suit in equity in the court of common pleas of the proper county and like proceedings may be had as hereinbefore directed in relation to the improvement of streets, or as in other cases at law or in equity.” 2 S. & 0. Stat. 1506, sec. 32.

The validity of these proceedings is assailed upon two general ' grounds: first, because the statute which authorizes the charge sought to, be enforced is unconstitutional and void; and second, admitting the law to be valid, that its requirements have not been, so followed as to give the city a lien.

I. As to the alleged uneonstitutionality of the statute:

The constitution (article 13, section 6) expressly requires the-general assembly to provide for the organization of municipal corporations, and enjoins upon that body the duty of restricting their powers of taxation, assessment, etc., so as to prevent the abuse of the powers conferred. The power of creating municipal corporations necessarily implies authority to confer upon them such police-powers as may be necessary for their internal government; and, among these, none is more important than the power to adopt such sanitary i’egulations as may be required to provide for the safety and preserve the health of the inhabitants.

The manifest object of the sections of the statute above named,, is to confer upon municipalities the power of requiring the abatement of nuisances existing upon property within their jurisdiction. Whether a nuisance exists or not in a ^particular case, justifying the exercise of the power by the municipal authorities, is a question of fact to be determined from the evidence. The constitutional objections, urged by the counsel for the plaintiffs in error, lie against the case which they claim to have been made by the plaintiff below, rather than against the validity of the statute under which it is claimed by the plaintiff to have arisen. And these objections maybe resolved into the single one—that the ease made did not warrant the action of the corporate authorities, or lay a foundation for the relief sought by the plaintiff in the original suit. The substance of the claim is, that the work performed was not required for the removal of an existing nuisance, but was designed to prevent or guard against a future or imaginary one which might never become a reality; and that, consequently, the filling up of the lots and the assessment of the expense upon the owners, was an attempt, by indirection, to subject private property to public use without compensation.

Proceedings of the city council merely colorable, and designed, under the pretense of removing a nuisance, to compel the lot-owners to improve their property, of course could not be sustained. If such was the state of fact in the present case it should have been shown in the record, but it does not so appear. There was no special finding of the facts separately from the conclusions of law under the code; and although the bill of exceptions states that the facts set forth in the statement of the case were proved, yet, what other facts may have been proved does not appear, nor does the bill profess to state all that was proved.

It maybe that stagnant water might exist upon property within the territorial limits of the corporation which the city authorities would not be authorized to compel the owner to remove. It might be removed from the inhabited parts, and so situated with reference to other property as not to create a nuisance. But without inquiring into cases which may exist, in which the public authorities could not be permitted to require the owner to improve the condition of his property, without infringing upon the inviolability of private property guaranteed by the constitution, it is sufficient here to say that the present case does not appear to belong to that class. The %-ecord does not -disclose the situation of the property with reference to the inhabited parts of the city, and, for aught that appears, it may have been surrounded by a dense population.

It is true the assessments on some of the lots appear to be high —varying from three hundred and fourteen dollars and seventy-five cents, the maximum, to three dollars and seventy-two cents, the minimum sum; but as neither the value of the lots is shown, nor the ratio which the assessment bears to such value, the charge imposed can not be said to be such as to substantially exhaust the owner’s interest in the property.

II. As to the objection that the requirements of the statute have not been so followed as to give the city a lien.

1. It is claimed that the only work required of the lot-owners was the removal of the water present on the lots at the time of the passage of the resolution. And it is correctly said that the power of the city to create a lien is limited to the exjmnse of performing the work required of the owner by the resolution.

The answer to this objection is found in a fair construction of the resolution as applied to its subject-matter. At the time of the passage of the resolution, there was stagnant water on the property, and at times water would accumulate on all of it, and, there "being no sufficient drainage, remain.until evaporated. There was •only a small portion of the property on which water stood all the year. Before the filling, aquatic plants only would grow on the parts of the lots filled; and the rule adopted by the council was to fill to the line where such plants grew. By the language of the xesolution, the lot-owners wore directed “to fill and drain said lots in such manner as shall be necessary to remove therefrom all stagnant water." The reasonable meaning of these terms is, to require of the owners, not the temporary, but the permanent removal of all ■stagnant water from their respective lots. The statute authorizes the city to cause any lot, 11 on which water shall at any time become stagnant, to be raised, filled up, or drained,” etc. It is not the water that may be standing on the lots at a given period of time that •constitutes the evil. The nuisance, as remarked by counsel, is of an intermittent *and cohstantly recurring character. The water which falls and stands in the wet season, cither partially or -wholly disappears in the dry months of summer, leaving the aquatie vegetation decaying and producing malarious diseases. The nuisance, being the result of natural causes, would continue to recur while the lots remained in the same condition; and a construction which contemplates the repetition of the work at every such recurrence would bo most unreasonable. Besides, it does not appear that any more economical mode could have been resorted to than the ■one that was adopted; and the rule to which the filling of the lots was made to conform, would seem to preclude the idea that any more work was done than- was required to remove .the stagnant water. A reasonable construction of the resolution requires, not merely the removal of water then on the lots, but the work to be .so done as to prevent the recurrence of stagnant water from the same causes. And the resolution being a reasonable sanitary measure for preserving the health of the inhabitants of the city, is not in conflict with the constitution.

2. The next objection, under this head, is, that the resolution is void for uncertainty; and, it is said, that it is incumbent on the council to direct, not only what is to be done, but the manner of doing it.

The resolution must, undoubtedly, be reasonably certain in its requirements. Putrid substances and stagnant water are alike obnoxious as causes of nuisance. To effect their removal, and thus .abate the nuisance by removing the cause, is the object of the section of the statute under consideration.

The description of the manner of accomplishing this result may be general—leaving to the judgment and discretion of the owner -the particular mode of doing the work so that it effects the object, nr this judgment and discretion may be exercised by the city council, and the work be so specifically defined by that body as to leave little or no discretion to the owner in its performance.

If putrid substances exist on a lot they might be removed by being buried on the lot, or hauled off, and we apprehend that, in such case, a resolution requiring their removal would sufficiently ■describe the manner of abating the nuisance. So, *where, upon a particular lot, there is a pond of stagnant water, direction that the lot be so filled up as to remove all the stagnant water, would be equally objectionable. The topography of a locality, embracing a number of contiguous lots, owned by different persons, might be such as to require, for the removal of the stagnant water on one, the adoption of a system which should comprehend and apply to all. In such ease, it might be necessary that the work to be done by each owner should be particularly defined, and that a. general direction would be insufficient. And while it is true that, in the present case, a great number of lots wore embraced in the resolution, yet the record does not show that any such difficulty asís suggested existed.

Whether, in a given case, the direction in the resolution to the owners is sufficiently specific, will depend somewhat upon the situation of the lots to which it relates; but where the work to be-done is clearly defined in general terms, the fact of leaving to the-owner, who bears the expense, the choice of the means, will not invalidate the resolution.

This construction of the statute will generally be less onerous upon lot-owners than to require the details of the work to bo fixed in all cases by the city council.

3. The remaining objection which we shall notice is, that the work was not done at the expense of the city; and that there was no expenditure of money which it was authorized to assess on the lots.

The statute provides that on default of the owner, the work may be done at the expense of the corporation, and that the amount of money expended shall be a debt, due to it from the owner, which is declared, moreover, to be a lien on the lot. If the work is done on the credit of the city, it is, in effect, done at its expense; and it can make no difference to the owner whether the obligation has been paid or not. He can only be assessed for the fair and reasonable cost of the work.

In this case the city stipulated to make a valid assessment of the expenses upon the lots, which, when authenticated and delivered to the contractor, with authority to collect the same, was to be received in discharge of all claims against the city. The expenditures in the construction of the work were made *by the contractor, under the authority and on behalf of the city, and were the same, in effect, as if paid directly by it.

It is true the corporation could not increase the burden upon the lot-owner by devolving the risk and cost of collection upon the contractor; and the district court properly reduced the assessments to the cash rates at which he- offered to perform the work.

Judgment affirmed.

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