
    Rambarger v. Curl et al., Commrs., et al.
    
      County ditch improvements — Jurisdiction of county commissioners can be invoked only by petition — Section 6442 et seq., General Code (108 O. L., pt. 1, 926) — Function of petition performed after commissioners find for or against improvement — Jurisdictional mistakes may be corrected when commissioners find for improvement — Jurisdiction divested, and cannot be reinvested, after finding against improvement.
    
    1. The jurisdiction of a board of county commissioners, underpart 2, title 3, chapter 1, General Code, as codified 108 Ohio Laws, part 1, page 926, and succeeding pages, to construct a county ditch improvement can be invoked only by petition.
    2. Such petition has performed its function when a board of county commissioners has found either for or against such improvement.
    3. When a board of county commissioners has found for a county ditch improvement, its jurisdiction over such improvement is a continuing jurisdiction, and it has the power to correct its own jurisdictional mistakes.
    4. When a board of county commissioners has found against' a county ditch improvement, it has divested itself of all jurisdiction in the premises, and is without power to reinvest itself with such jurisdiction.
    (No. 19608
    Decided May 25, 1926.)
    Error to the Court of Appeals of Morrow county.
    This cause comes into this court upon error from the Court of Appeals of Morrow county. The litigation grew out of the following situation:
    On the 29th day of April, 1920, a petition, duly signed, was presented to the board of county commissioners of Morrow county, praying for a county ditch improvement, which thereafter became known as the “Hayes county ditch.” On the 4th day of March, 1921, the board of county commissioners found “favorably upon the improvement,” but made no finding that the improvement would be conducive to the public health, convenience, or welfare. On the 14th day of March, 1921, the board of county commissioners found:
    “This board, still being of the opinion that the construction of said ditch will be conducive to the best interest and welfare of the public, do again find favorably on said improvement.”
    On the 19th day of April, 1921, a temporary injunction was issued out of the court of common pleas of Morrow county in a case there pending, wherein E. It. Hart et al. were plaintiffs and the commissioners of Morrow county were defendants, enjoining the construction of such improvement. On the 27th day of July, 1921, the temporary injunction'was made perpetual as to 11,531 feet of the upper, or source, end of such improvement. Appeal was prosecuted in that case to the Court of Appeals of Morrow county, where, on the 28th day of December, 1921, a similar judgment was entered. On the 12th day of January, 1923, the board of county commissioners passed the following resolution:
    “It appearing to the board, and upon the advice of the prosecuting attorney, the Court of Appeals of Williams county, declared the ditch law unconstitutional, and the Supreme Court of Ohio declared 10 sections of the law unconstitutional, and it appearing that this board is without further jurisdiction to proceed with the said improvement, be it resolved by this board of commissioners that we hereby dismiss all action taken on the Hayes county ditch.”
    On the 2d day of January, 1924, the plaintiff in this cause became the owner of the premises described in his petition. On the 29th day of December, 1924, the board of county commissioners passed the following resolution:
    “Relative to the journal entry appearing upon this journal under date of January 12, 1923, and found on page 165, which record is in the following words and record to-wit: On the advice of the prosecuting attorney the Court of Appeals of Williams county declared the Ditch Law unconstitutional, and the Supreme Court of Ohio declared ten sections of the law unconstitutional; and it appearing that this board is without jurisdiction to further proceed with the improvement, be it ■ resolved by this board of county commissioners that we heréby dismiss all action taken on the Hayes county ditch. Therefore,' be it resolved that the proceedings of January 12, 1923, relative to said Hayes ditch be, and is hereby, sot aside and rescinded.”
    
      On the 17th day of March, 1925, after due notice, the board of county commissioners amended and corrected assessments levied prior to the proceedings in the case of Hart et al. v. Board of County Commissioners, and levied the sum of $6,833.76 upon lands benefited, $100 of which was levied upon the lands of the plaintiff herein.
    An action was brought by the plaintiff in error to enjoin the certification of this levy to the treasurer for collection. Upon hearing, judgment was rendered for the defendants. Error was prosecuted to the Court of Appeals of Morrow county, where the judgment of the court of common pleas was affirmed.
    
      Mr. T. B. Mateer and Mr. Benjamin Olds, for plaintiff in error.
    
      Mr. C. H. Conaioay, prosecuting attorney, and Mr. J. W. Barry, for defendants in error.
   Robinson, J.

A reversal of the judgments below is sought here upon two grounds, the first being that the board of county commissioners, while finding for the improvement, did not find that the improvement would be conducive to the public health, convenience, or welfare, the first finding for the improvement being in the following language:

“After hearing all the proofs, therefore, we, the board of county commissioners, do find favorably upon the improvement, upon the following plan.”

Ten days later the commissioners passed a resolution in the following language:

“This board, still being of the opinion that the construction of said ditch will be conducive to the best interest and welfare of the public, do again find favorably on said improvement.”

We are of opinion that the resolution quoted last above, while inaccurate in the use of the word “still,” amounts to a finding as of that date that the improvement will be conducive to the public welfare.

The other ground of error raises the question of the power of a board of county commissioners to rescind its action establishing a county ditch improvement and its power to rescind such rescission.

A board of county commissioners in the construction of a county ditch improvement has such powers as are specifically conferred by statute and such implied powers only as are necessarily incident thereto. While we find no provision specifically authorizing a board of county commissioners in a county ditch improvement to correct its own mistake in determining that the improvement will be conducive to public health, convenience, or welfare, we do find provision for an appeal from final orders of boards of county commissioners in ditch proceedings, such as the order here under consideration; and, since the purpose of such appeal is but to retry and redetermine the issue, to the end that a just and lawful determination may result, and since the function of the board of county commissioners in the construction of a county ditch improvement is that of an arm of the state, acting in a governmental capacity, with a purpose to promote the public health, convenience, or welfare, we are of opinion that as an incident to the powers specifically conferred upon such board to determine whether such improvement will be conducive to the public health, convenience, or welfare there exists the power, when such board finds that it is mistaken in its conclusion that such improvement will promote the public health, convenience, or welfare, to correct such mistake, and thus itself accomplish that which by specific provision may be accomplished by appeal.

With reference, however, to the rescission of a finding against such improvement, a different conclusion must be reached, for the reason that the jurisdiction of the board of county commissioners in county ditch improvements can be invoked only by petition. The function of such petition is to invoke such jurisdiction, to furnish certain general information, and to assume responsibility for the payment of the expense of ascertaining, through the surveyor, more definite information. The petition, therefore, has performed its whole function when the board of county commissioners has found either for or against the proposed ditch improvement. If the finding be favorable to the petitioner, his obligation is terminated, and the improvement proceeds as a county enterprise. The jurisdiction of the board invoked by the petition continues, although the function of the petition has been performed.

Where, however, the board of county commissioners finds against such improvement the quasi jurisdiction, assumed upon the filing of the petition for the purpose of determining whether it will assume full jurisdiction to prosecute the improvement, is thereby terminated. The petition, having performed its function, has no further vitality, and the board of county commissioners thereafter has no more jurisdiction in the premises than if such petition had never been filed.

We therefore reach the conclusion that the board of county commissioners in this case had jurisdiction to pass the resolution of January 12, 1922, dismissing the proceedings in the “Hayes county ditch,” and that, having dismissed the proceedings, its jurisdiction with reference to that improvement terminated. The judgments of the Court of Appeals and of the common pleas are reversed.

Judgment reversed.

Jones, Matthias, Day, Allen and Kinkade, JJ., concur.  