
    Makemson v. Kauffman et al.
    1. County commissioners have power to vacate an order, previously made at the same session, dismissing a petition for a road improvement for want of jurisdiction to make the improvement.
    2. The death of one petitioning for a road improvement before the final order is made therefor, whose name is not withdrawn by those succeeding to the title to his land, does not affect the authority of the commissioners to count his name as one subscribing for the improvement.
    3. It is no ground for enjoining proceedings for a road improvement that one or more signed the petition therefor, upon the promise of others to pay all assessments that might be made on his or their lands, to defray the cost of its construction.
    4. In determining who are land owners within the meaning of the statute, resident tenants in common of undivided lands who hold otherwise than as heirs, are to be counted as if they were owners in severalty.
    5. In determining whether or not a majority of resident land owners, who, as reported, will be benefited by a contemplated road improvement, were petitioners for the same, the commissioners are not authorized to count, in favor of the improvement, the names of those who signed a former petition for a similar improvement over the same line, but which former petition had been abandoned.
    6. Under the fourth section of the act above referred to (71 Ohio L. 94), it was the duty of the viewers and surveyors in their report to include a list of all the lots and lands, which, in their opinion, would be specially benefited by the improvement, whether such lots or lands were partly within the limits of a municipal corporation or not; and, hence, where the viewers and surveyor, at the instance and solicitation of those interested in the improvement, omit from their report, lands lying within the assessing district, which, in their opinion, are equally benefited with those reported for assessment, for the purpose of making it appear that a majority of resident land-owners, whose lands are benefited by the improvement, are in favor of the same, an injunction will be granted restraining the commissioners from ordering an improvement founded on such report.
    7. The county commissioners are not authorized to make the order for the improvement provided for by section five of the act aforesaid, where the report of the viewers and surveyor is silent as to the public necessity or utility of the improvement.
    8. A petition for an injunction stated facts which, if true, entitled the plaintiff to the relief prayed for. The court, before answer, on motion therefor, vacated the injunction and dismissed the petition. Held, that the order dismissing the petition was erroneous.
    Error to the District Court of Logan county.
    The action below was brought by the plaintiff in error against the commissioners of Logan county and others, to enjoin the commissioners from contracting for the construction of a road improvement as prayed for by the petition of J oseph N. Kauffman and others. Erom the facts stated, it appeared that in April, 1874, the commissioners, upon said petition, appointed viewers and a competent surveyor, as required by the second section of the act relating to the laying out and improvement of highways, as amended March 31, 1868 (S. & S. 673), to examine the route of the proposed improvement, and report as required by the fourth section of that act. The committee reported in August then next, and on the 7th day of October following, the commissioners proceeded to determine whether a majority of the resident land-owners in said county, whose lands, as reported, would be benefited by said improvement, had signed a petition for the same, and finding a majority opposed to the improvement, entered an order dismissing the petition.
    On the 10th of October, 1874, the order dismissing the petition was rescinded, and, on the 19th of the same month, the commissioners, on further consideration, determined that a majority of said resident land-owners had signed the petition for the improvement, and, thereupon, ordered the same to be made, and that the lands of the plaintiff, among others be assessed to defray the expense thereof.
    It further appeared, that, in determining whether a majority of resident land-owners had signed the petition for the improvement, the commissioners counted the name of Andrew Sipe, a non-resident of the county; also Abraham Erantz, who, after signing the petition, and before final action thereon died. It also appeared, to the knowledge of the commissioners, that said Erantz, Elias Cookston, and Samuel Heddings, signed the petition in consideration of a promise of others interested in the improvement, that the latter would pay whatever assessments were made on the lands of the former by reason of the improvement. ‘ That TI. C. Moore and-Moore, tenants in common with two others, signed said petition, and were counted as one person in favor of the improvement; and that, by counting all the foregoing, a majority of two only were found to be in favor of the improvement.
    It was further alleged, that the viewers and surveyor did not file, in the office of the auditor, a report showing, by a statement of facts or otherwise, public necessity for said contemplated improvement. And, further, that in the year 1871, a petition from said Kauffman and others was presented to the commissioners, asking for an improvement of a road over said route, by “ opening, straighteniug, widening, grading, graveling, culverting, and bridging” the same, and that, said petition having been abandoned, on February 25, 1874, the petition on which the improvement was. ordered, asking for an improvement by “ laying out, opening, etc.,” was presented; and that four persons, namely, Detrick, Wilson, Hostettler, and Gray, whose names appeared on the petition of 1871, but who had refused to sign the petition on which the improvement was ordered, were counted in making up the majority of landowners favoring said improvement, and that all the foregoing persons were counted in order to create an apparent majority in favor of said improvement.
    It was further alleged that, “ the lands of D. W. Mc-Cracken, within thirty-five rods of the east end of said proposed improvement; the lands of Henry Dachenbach, a few rods further therefrom; the lands of M. W. Kuman and John Carter, within half a mile thereof; all the lota and lands in the town of Kegraff, within one-half mile of said improvement, and the lands of many persons between said town of Kegraff and the west end of said proposed improvement, were not noticed or reported at all upon the schedule of lands along the line of said proposed improvement, which ought to be assessed for the expense of the same, but were wholly omitted by said viewers and engineers, by procuration and solicitation of said defendant, Kauffman, and other persons in favor of said proposed improvement, from their said schedule and report, for the purpose and with the intent, fraudulently, to create an apparent majority of said land-owners in favor of said proposed improvement. All of the said land-owners whose lands were so omitted from said schedule and report of said viewers and engineers are opposed to said proposed improvement, and there lands are benefited as much by said proposed improvement as any of the lands reported by said viewers and engineer is benefited thereby, if any of said lands are thereby benefited at all.”
    A preliminary injunction was granted enjoining the commissioners from letting or contracting for the work of construction, which injunction, on motion in the common pleas, was vacated and the petition dismissed. The plaintiff appealed to the district court, where the cause went to hearing, without answer, on the “ petition, record, and motion,” resulting in a like judgment to that rendered in the court of common pleas. The judgment dismissing the petition is assigned as error.
    
      McLaughlin & Dow, for plaintiffs in error:
    I. We claim that the county commissioners — after having fully heard said matter, made an order finding that there were not a majority of resident land-owners reported as benefited, asking for said improvement, and dismissing such proceedings — have not the power, upon a subsequent day, to set aside said order dismissing such proceedings for said improvement, without a statute authorizing them to do so.
    The county commissioners are clothed with only limited and special powers. They can not exceed the authority given them by statute, and are limited to the exercise of those powers which are specifically conferred upon them by law. Corry v. Gaynor, 22 Ohio St. 592; Roberts v. Easton, 9 Ohio St. 98; Anderson v. Commissioners, 9 Ohio St. 635; Gallia County v. Holcomb, 7 Ohio, 1 pt. 232; Hamilton County v. Mighels, 7 Ohio St. 109; Treadwell v. Hancock County, 11 Ohio St. 183-190.
    They have no authority given them, after the proceeding has been dismissed, to reinstate it at a subsequent meeting or session; but the only remedy is for the petitioner to commence proceedings de novo.
    
    II. That the commissioners have no right to order the improvement of a road unless the viewers shall report that “'public necessity” requires such improvement, or showing the public necessity of the contemplated improvement.
    The viewers made no such report. S. & S., § 4, 673, 674.
    That without such report the commissioners have no power to make the order. S. & S., § 5, 675, 676.
    The petition shows that no necessity can exist for such an improvement, hence the viewers refused to report such necessity.
    III. That on the hearing which the county commissioners made the order for the improvement of said i’oad, there were not, in fact, a legal majority of petitioners asking for the improvement, although the commissioners found there was a majority of two (2).
    1. Andrew Sipe was a non-resident of the state. S. & S., § 5, 676.
    2. Abraham Erantz was dead, and not a “resident landowner” at the time the order for the improvement was made. Newcomb v. Fiedler, 24 Ohio St. 463.
    3. Co-tenants in common were counted. This was illegal. S. & S. 676.
    4. Petitioners for an abandoned route, and who were opposed to the new route, were counted. This was also illegal. 27 Ohio St. 218; Story on Agency, 474.
    5. The petitioners who were bribed to sign should not have been counted.
    IV. The viewers were fraudulently procured to strike from the schedule of lands benefited, and that ought to be assessed for the same, certain lots lying adjacent to said improvement. S. & S. 676.
    V. As to injunctions, see Kerr on Injunctions, § 5, 572; 20 Ohio St. 360; 22 Ohio St. 584; 9 Ohio St. 98; Id. 635; 12 Ohio St. 642; 19 Ohio St. 78; 1 Disney, 196; 24 Bart. 187; High, on Injunction, § 884.
    
      Reman § Reman, also for plaintiffs in error.
    
      William Lawrence and Joseph II. Lawrence, for defendants :
    The judgment must be affirmed for several reasons—
    I. In support of the judgment, whatever must have been-proved to make out a ease will, on error, be presumed to-have been proved. Christy v. Douglas, Wright Sup. Court, 483 ; Mathis v. McCord, Wright, 647; Smythe v. Sproul, Wright, 757; Bethel v. Woodworth, 11 Ohio St. 393, 397; Taylor v. Fitch, 12 Ohio St. 169; Johnson v. Mullen, 12 Ohio, 10; Palmer v. Yarrington, 1 Ohio St. 253, 261; Gettings v. Baker, 2 Ohio St. 21; Nott v. Johnson, 7 Ohio St. 270; Shroyer v. Richmond, 16 Ohio St. 455; 20 Ohio, 344.
    It will therefore be presumed, if necessary, that material, allegations of the petition were disproved.
    
    The want of answer does not change the case. Hollister v. Reznor, 9 Ohio St. 6; Ohio Life Ins. Co. v. Goodin, 10 Ohio St. 563.
    Where a petition fails to state sufficient facts, a judgment on it is erroneous by the code, section 89 ; but there is no provision which requires this court, on error, to hold that every allegation of a petition, not controverted by answer,, was proved, or that material allegations were not disproved..
    
    The effect of the code, sections 127, 376-598, is that evi■dence will or may be required, even in default of answer. 'The code, sections 290-296, supports this view.
    II. The petition for injunction is premature. It does not ■allege that the proposed road will take any of plaintiff’s land. His only complaint is his liability to an assessment.
    
    1. The plaintiff had no right to an injunction, until after final judgment by the commissioners, after receiving the report of the “ committee of apportionment.” Until then, it can not be known that the plaintiff will be assessed.
    
      a. This is so by the statute of May 13,1868 (S. & 8. 677). The court can only “ enjoin the collection of any tax or assessment levied or ordered to be levied.” The whole proceeding is statutory, and the remedy given by it, must be deemed exclusive. Expressio unius exclusio alterius.
    
    
      \b. The same result would follow from general principles. Williams v. Sadler, 4 Jones Eq. 378.
    
      c. There is for the plaintiff*a “plain, adequate, and complete remedy at law,” by making his objection before the commissioners. Storrs v. Payne, 4 Hen. & M. 506; High, on Injunctions, § 44-82-371; McBride v. Chicago, 22 Ill. 574; Ottand v. Chicago, 25 Ills. 43; Mayor v. Mesesole, 26 Wend. 132; Heywood v. Buffalo, 14 N. Y. 534; Blake v. Brooklyn, 26 Barb. 101; Frevert v. Finfrock, 31 Ohio St. 621.
    III. The petition was properly dismissed, because it ■shows no right to an injunction. It claims an injunction on four grounds:
    (1.) That the county commissioners declared in their record that the requisite majority of the land-owners petitioned for the road, when, in fact, this majority was made up by counting persons not entitled to be counted.
    (2.) That the viewers and engineer, in their report, did not show by a statement of facts, the public necessity of the improvement.
    (3.) That a part of the middle portion of the proposed Improvement is not on any road previously established.
    (4.) That the viewers and engineer, in their report of persons who ought to be assessed, omitted certain persons, by •.solicitation of defendant, Kauffman, with intent fraudulently to create an apparent majority of land-owners petitioners in favor of the road.
    To these objections, in the aggregate, there are sufficient .answers:
    1. The record of the commissioners shows their decision .and judgment in favor of the' proposed improvement, and this is upon the authority Anderson v. Comm’rs, 12 Ohio St. 642, “ evidence of the [proper]_ establishment of the road, although unaccompanied by proof of the essential requisites to the exercise of jurisdiction.”
    2. Their finding is conclusive on every question of fact, and can not be reviewed by a court of chancery. 12 Ohio St. 645.
    A court of equity can not review the evidence upon which ¡another court — even a justice of the peace — has decided any fact, but the judgment is conclusive. McCarty v. Burrows, 2 Ohio, 20-22, 23; Reynolds v. Reynolds, 3 Ohio 268; Leiby v. Ludlow, 4 Ohio, 469.
    The approved doctrine is, that courts of equity may enjoin municipal bodies from doing acts not authorized by any law, but can not interfere with their decisions on evidence in relation to subjects over which the law gives them jurisdiction and power to hear evidence. Belknap v. Belknap, 2 Johns. Ch. 467; Tucker v. Freeholders, Saxton, 282; Bell v. Bayne, 2 Stewart, 414; Lawton v. Comm’rs, 2 Caine, 182; Walker v. Smith, 21 Howard, 579.
    “Acts done, which pre-suppose the existence of other .acts, to make them legally operative, are presumptive proofs of the latter.” 12 Wheat. 70; 2 Ohio St. 241; 4 Ohio St. 112; 17 Ohio St. 37; 7 Ohio (pt. 2), 190.
    3. The action of the viewers, in deciding who should bo .assessed, is presumed to have been in good faith, and it was open to review by the commissioners. The allegation of fraud is wholly insufficient. Frazier v. Brown, 12 Ohio St. 294-312.
    The allegation is not against the viewers.
    
    IY. The county commissioners had power at their Octoher session, 1874, to set aside their order on a previous day of the same session. It is an incident of their quasi corporate power, necessary to correct mistakes and do justice. Huntington v. Finch, 3 Ohio St. 447; Dial v. Halter, 6 Ohio St. 228 ; Dillon on Municipal Corporations, § 55 ; Campbell v. Park, 32 Ohio St. 544.
    V. “ The public necessity of the contemplated improvement ” is not denied by the petition.
    On this subject the petition makes two points. To the first we reply :
    1. The act of March 31, 1868, requires the viewers and engineer to “make a report to the commissioners, showing-the public necessity of the contemplated improvement.” 65 Stat. 41; S. & S. 673, 674.
    It will be presumed this was done. The petition does not show there was no such report. This can not be done-unless by “ specific allegations.” Frazier v. Brown, 12 Ohio St. 294.
    The petition only alleges that the viewers and engineer never “ made report showing by a statement of facts or otherwise the public necessity of said proposed improvement.” This expression “ or otherwise” must be construed on the maxim “ noscitur a sociis,” as meaning only by a similar showing — not that the report did not in any manner show or aver that “ the public necessity requires the road to be made.”
    2. Usage makes law. The form in “ Raff’s Road Laws,” p. 206, for the report of viewers on a state road, is, “ that in their opinion the public convenience requires the establishment of said road.” If the report avers that there is a public necessity for this road, that is all the statute requires. This is the usage, and is sufficient. Miller v. Graham, 17 Ohio St. 8. The petition does not deny that the report avers this.
    .3. The plaintiff’s remedy is by motion before the commissioners, or by petition in error. Kellogg v. Ely, 15 Ohio St. 67; Frevert v. Finfrock, 31 Ohio St. 621.
    • ■ Second. The petition alleges that “ in fact said proposed improvement is not demanded by public utility or necessity.”
    The decision of the commissioners in favor of the road is conclusive. Bowersox v. Watson, 20 Ohio St. 507; Coen v. White, 8 Ohio St. 233; Hays v. Jones, 27 Ohio St. 219, limits the court to an inquiry only as to “ the jurisdictional facts.”
    VI. The plaintiff can make no question as to the requisite number of petitioners.
    VII. The petition avers that certain lands were “ omitted by said viewers and engineer by procuration and solicitation of said defendant, Kauffman, and others, . . •. with the intent, fraudulently, to create an apparent majority ” for the road.
    1. This is no sufficient allegation of fraud. Frazier v. Brown, 12 Ohio St. 294.
    2. At most, it only charges a fraudulent intent, with no fact stated to justify the brutum fulmén. The intent is immaterial. There is no charge against the viewers.
    
    3. The action of the commissioners is conclusive against the allegation.
    4. The acts of March 31 and May 9, 1866 (S. & S. 673), give a remedy by authorizing the commissioners to hear and decide all such questions. A party who will not avail himself of this remedy when he can, can not allege his own laches to give jurisdiction to a court of equity. Kellogg v. Ely, 15 Ohio St. 667; Frevert v. Finfrock, 31 Ohio St. 621.
    
      West, Walker &¡ Kennedy, also for defendants in error.
   Boynton, J.

The action of the commissioners on Octobe: 10, 1874, in rescinding the order of the 7th, dismissing the petition for the improvement for want of power to order the same, will be presumed, there being no averment to the contrary, to have been taken at the same session at which the order of dismissal was made. This action, therefore, was fully authorized. Until the session was closed, the power of the commissioners over all orders made upon the subject-matter of the road improvement was fully and completely within their control, and the-power to set aside their previous order was as fully possessed, as was the power in the first instance to make it. ¥e must therefore examine the questions arising in the ease, as if no action had been taken on the subject-matter of the improvement by the commissioners prior to the date at which its construction was ordered. If the petition of the plaintiff stated a cause of action, it is clear that the-district court erred in dismissing it. Rush v. Rush, 29 Ohio St. 440. No answer having been filed taking issue with any of its allegations, or setting up any new or affirmative-matter, the plaintiff, upon final hearing, would have been entitled to judgment. The vacation of the injunction, upon-motion and proof, did not authorize or warrant the dismissal of the petition. The case should have been retained for trial, and if no issue was joined by answer, such relief' should have been awarded to the plaintiff as his petition-showed him entitled to, without regard to the disposition made of the motion to vacate the injunction. That a cause of action was stated in the petition, we entertain no doubt.. In the first place, it appears from the facts stated in the petition, that, the commissioners acquired no jurisdiction to-make a final order for the improvement. A petition by a majority of the resident land-owners of the county, whose lands were i-eported as benefited, and for assessment, was a condition prerequisite to the acquisition of jurisdiction by the commissioners to make such order. Hays v. Jones, 27 Ohio St. 218. Non-resident petitioners could not be regarded. They had no more voice in the matter than if they owned no lands-in the vicinity of the improvement. Andrew Sipe, therefore, ought not to have been counted as a petitioner, although, he was the owner of lands within the assessing district,, that were reported as benefited by the improvement. The-name of Abraham Frantz, we think, was properly counted..

He was one whose lands were reported by the viewers- and surveyor as benefited by the improvement, and he had signed the petition. This was all that was required by the words of the statute to authorize the commissioners to-count his name. If those succeeding to the title to his-lands were opposed to the improvement, they should have-withdrawn his name from the petition, before the commissioners took final action thereon.

Nor does it seem to us that the mere fact that Frantz,. Cookston, and Ileddings signed the petition for the improvement in consideration of the promise of others to pay whatever assessments might be made upon their lands respectively, made it the duty of the commissioners to reject their names. It does not appear that they were opposed to-the improvement, nor that they did not believe it demanded by the public convenience and welfare. "What would be the effect of buying off a conscientious opposition to the improvement we do not determine, but where the improvement is of general public utility or necessity, we are unwilling to say that the mere circumstance that a land-owner of the vicinity signed a petition upon the promise of another to relieve him from the burden of the assessment, required the commissioners to adjudge that a fraud upon the law was intended, and thereupon to reject the petitioner’s name, in determining whether or not a majority of resident land-owners whose lands were reported as benefited, were in favor of the improvement. We are also of the opinion, that in counting the two Moores as one petitioner no prejudice resulted to the plaintiff. While they were shown to be tenants in common with two others, it did not appear that they held their title as heirs of an undivided estate. Hence, they were not shown to belong to the class of tenants in common, who, by the statute, are collectively restricted to one vote. S. & S. 676. Being resident land-owners of the county, and presumably holding their title, not as heirs, they should have been counted as if their ownership were in severalty.

But the counting of the names of Hetrick, Wilson, IIostettler, and Gray, whose names appeared only on the petition of 1871, was wholly unauthorized. That petition had not only been abandoned, but it sought a different object from the one upon which the action of the commissioner was sought. The result is, excluding Sipe, Detrick, Wilson, ITostettler, and Gray, from the count, and including Erantz, Cookston, and Heddings, and counting each of the Moores as a petitioner, instead of counting the two as one, there would be two less than a majority of the resident land-owners, whose lands were reported as benefited, asking for the improvement.

This would leave the commissioners without power to order its construction. Hays v. Jones, supra. Again, the petition avers that the report of the viewers and engineer did not show by a statement of facts, or otherwise, the public necessity of the proposed improvement. Section 4 of the act above referred to (71 Ohio L. 94) required the viewers and engineer to make a report showing the public necessity of such improvement, the damages claimed and by whom, the amount assessed to each claimant, an estimate of the expenses of the improvement, and the lots and lands that would be benefited thereby, and that ought -to be assessed for the expenses of the same.

This report lays the foundation for the further action of the commissioners. Upon its return they are required, if in their opinion public utility requires it, to enter upon their record an order that the improvement be made. Without such report no such order can be made. And wherethe same is silent on the subject of the public convenience or necessity of the proposed improvement, such order is unauthorized.

It was finally alleged that by the procuration and solicitation of the principal petitioners for the improvement, and in order to create an apparent majority of resident land-owners in favor of the same, the viewers and engineer were fraudulently induced to omit from their report lands lying near the improvement, and within the assessing district, and as much benefited thereby as any reported for assessment. This averment, being undenied, entitled the plaintiff to an order setting aside the proceedings of the commissioners, which were founded upon such fraudulent report. It was the duty of the viewers and surveyor to return a description of all lots and lands lying within two miles of the proposed improvement that would, in their judgment, be specially benefited thereby, whether within a ipunicipal corporation or not.

This is the plain requirement of the statute. The report should represent the impartial judgment of the committee.

"Where the requisite number of resident land-owners do not subscribe the petition, the commissioners have no power to order the improvement. And where lands, lying within the assessing district, which in the judgmeut of the viewers and engineer will be specially benefited by the improvement, are purposely omitted from the report for the purpose of showing that an apparent majority of the resident land-owners are in favor of the improvement, when it is known that the actual majority are not, such omission is fatal to the validity of the report, and the court should not hesitate to set the same aside,-together with all proceedings founded thereon.

Such being the distinct character of the allegation in the petition, it alone constituted a sufficient ground for relief.

Judgment reversed, and cause remanded.

Okey, J.

I concur in the judgment of reversal. But it appears that one interested in the road in question agreed with others who would necessarily be taxed for the improvement, that if they would sign the petition he would pay their assessments. The record shows that these persons would not have signed except for that agreement. This contract was made for the purpose of obtaining the majority of resident land-owners in favor of the measure, which the statute requires as a condition precedent to the improvement, and it was necessary to count the names of persons whose signatures were thus obtained, in order to constitute a majority in favor of the work. That is a species of bribery which in my opinion should not be tolerated. The legislature intended by the provision in question to protect minorities, and as far as possible secure the untrammeled judgment of a majority of those to be taxed in favor of the improvement. It is no answer to say that the persons whose signatures were thus obtained may have been in favor of the work, but unable or unwilling to boar tbe expense. The policy of the statute is defeated, and hence the reasons why such persons were unwilling to subscribe are not fairly the subject of averment or proof, but are immaterial. To sanction such an agreement, whatever the motives of the parties may have been, can not fail to be productive of mischief. Whether oral or written, a contract like that could not be enforced, being simply void; but, nevertheless, if the requisite number of petitioners is obtained under an agreement of that sort, such conduct should be none the less fatal to the proceeding.  