
    *The City of Cincinnati v. Alfred D. Coombs and others.
    An ordinance -of tbe city council of Cincinnati, which provides for the review of damages assessed to the owners of property appropriated in opening a street, and does not secure to each party aggrieved the right to select two of the five freeholders comprising said board of reviewers, violates the act passed March 16, 1839.
    The city can not justify under proceedings which are a violation of the charter; and a party having sought redress under a mistaken belief that the city council had provided adequate means, may abandon that remedy and seek it by action.
    This is a writ of error directed to the superior court of Cincinnati.
    The writ is sued out to reverse a judgment of that court rendered in a special action on the case, brought by the defendants in error, to recover damages for tbe taking of their property, by the plaintiffs in error, and appropriating the same to their own use. The declaration set forth, that on a certain day therein named, the plaintiffs being seized of certain real estate in the city of Cincinnati, the defendants entered thereon, took and appropi’iated it to their own use, without rendering the plaintiffs any compensation therefor, and claiming reimbursement for the same. To this the defendants pleaded the general issue; and on the trial offered in evidence (subject to all just exceptions) the charter, and sundry ordinances of said city, together with the transcript of certain proceedings, had under the direction of the defendants, and appended to the bill of exceptions, and thereupon asked the court to charge the jury, that the said charter and ordinances, together with the matters disclosed in said proceedings, wore a bar to the plaintiffs’ action; which instructions the court refused to give; and thereupon the defendants excepted. The jury found a verdict for the plaintiff's; assessing their damages to $8,827.61, upon which judgment was given.
    The error relied upon is the refusal of the court to charge the *jury, as prayed for, that the matters referred to were a bar to the plaintiffs’ action.
    The facts material to an understanding of the question are these: The defendants, by an ordinance of the city council, passed on July 12, 1841, undertook to extend Green street, in the city of Cincinnati, from Elm street to Western Row, in the doing whereof, they condemned to the use of the city the premises in the plaintiffs’ declaration described. After the appropriation had been made, the plaintiffs made an application to the trustees, or city council aforesaid, demanding remuneration for the injury sustained by thorn. And thereupon, alter much delay, the council, by resolution, on -, 1844, constituted George W. Jones, William Rankin, and William Stephenson a board of assessors, to ascertain the amount of damages sustained by the various individuals, whose property had been thus appropriated to the uso of the city, and to assess the benefits derived to those through or near whose propertj’- the street was laid opon. The board mot; and, on the 18th day of Juno ensuing, made a report to council, assessing damages and benefits; and among others, stating the amount of damages sustained by those plaintiffs at a certain sum. Thereupon, within four weeks after the filing of said report, the plaintiffs notified the council, that they claimed a review of the appraisement, and named for that purpose, and on their behalf, John P. Foote and David T. Disney, two disinterested freeholders of the city, to act in conjunction with two others, to be selected by the council, as a board of review. The council refused to entertain the application, or to make the appointment; but, on the contrary, directed their clerk to give notice to all persons whomsoever, interested in the opening of said street under said ordinance (as also to those interested under another ordinance, passed on the same day, for the opening of another part of Pearl street)—both those whose property had been seized and taken, and those upon whose property bonefits had been assessed—to meet, and choose jointly, and in their 
      joint behalf, *two freeholders, to act in conjunction with two others, on the part of the city, as a general board of review, to revise the entire assessment and valuation made by the original board of assessors. It was conceded that the plaintiffs refused to sanction any such appointment, or to be bound thereby. Nevertheless, the defendants went on, and constituted such a board of review; refusing to make any other. The board of review, after much delay, reported on -, 1845, that in consequence of the difficulties of the subject, they were unable to'agree upon all the matters before them ; and so referred back the original report to the council, without alteration. Since when, nothing has been done by the defendants toward the satisfaction of the plaintiffs’ claim. It appears further, by the finding of the jury, that the premises of the plaintiffs have been actually taken possession of by the defendants, and appropriated to their own use, and in eonrequence thereof, the plaintiffs have been endamaged in the sum of $8,827.61; for which no compensation whatever has been made them.
    Samuel M. Hart, for the plaintiff in error, made the following-points :
    1. A suit like this can not be sustained when a statutory remedy is provided. Scovil v. Griddings, 7 Ohio, 216, pt 2; Hickox v. Cleveland, 8 Ohio, 583; Rhodes v. Cleveland, 10 Ohio, 161; Stowoll v. Flagg, 11 Mass. 364.
    2. The act of March 16, 1839, under which these proceedings were had, is constitutional. Symonds v. Cincinnati, 14 Ohio, 147; Brown v. Cincinnati, Ib. 541.
    3. The ordinances which affect this case conform to the charter of the city, and are accordant to the constitution and the laws of the state.
    4. The proceedings themselves are not void, but are conclusive upon all who made themselves parties thereto.
    ^Spencer & Corwin and J. A. Pugh, for the defendants in error, made these points :
    1. The remedy provided by the charter in cases where property is condemned or appropriated to public use is cumulative and does not deprive a party of his common law remedy.
    The charter of the city is unconstitutional, because it does not provide an adequate and complete remedy; because it does not mako any provision which will enable the party to compel compensation in money, and because it provides that property shall be condemned and vacated, and an irremediable injury inflicted, as a condition precedent to any acts done to compensate for the injury.
    3. The ordinance of the city council is unconstitutional because the remedy is inadequate and unjust; because it leaves the person injured at last with simply a claim upon the city; because it postpones the right of a party to resort to this remedy; and because the tribunal constituted under this ordinance has necessarily an interest adverse to these parties.
    4. The ordinance of the council is not in pursuance of the charter ; does not give the party aggrieved a right to select two reviewers ; and unites the interest of the parties whose, property is injured, with the interest of the parties assessed.
    5. The remedy is inadequate and incomplete, the only provision for payment being by special tax, which tax is paid into the general treasury.
    6. The city council has denied to the party aggrieved that remedy to which by the charter he is entitled.
    7. The party has exhausted his remedy without obtaining relief, and is compelled to resort to the common law tribunals.
    In support of these propositions they submitted the following authorities :
    *Baker v. City of Boston, 12 Pick. 193; Stevens v. Middlesex Canal Co., 12 Mass. 468 ; Perry v. Wilson, 7 Mass. 394; Gardener v. Village of Newburg, 2 Johns. Ch. 168; Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wend. 18; Rogers v. Bradshaw, 20 Johns. 744; Jerome v. Ross, 7 Johns. Ch. 343; Wheelock v. Pratt, 4 Wend. 650; 2 Kent’s Com. 389; 5 Ohio, 143; Foote v. City of Cincinnati, 11 Ohio, 409 ; 1 Com. Dig. 447, letter C; 1 Ch. Pl. 144; Reese v. Robinson, 2 Burr. 893; 1 Saund. 136, n. 4; Crittenden v. Wilson, 5 Cow. 165; Scidmore v. Smith, 13 Johns. 322; Farmer’s Turnpike v. Coventry, 10 Johns. 389 ; Almy v. Harris, 5 Johns. 175 ; 1 Kelley, 536 ; 11 Pet. 638; 18 Pick. 501; 18 Wend. 443; 4 Hill, 140; 5 Paige, 143 ; 3 Paige, 76; 2 Term, 385; Fire Ins. Co. v. Wilson, 8 Pet. 291; 4 Hill, 381; Wheat. Selw. 1094; People v. Mayor, 10 Wend. 493; 8 Pet. 291; 7 Eng. Com. Law, 243; 14 Ib. 241.
   Birchard, C. J.

Several very important questions have been presented in this case, and very fully argued; but, in our opinion, ono or two material questions are decisive of the controversy, and we shall notice these only.

The first in importance regards the construction placed by the city council upon section 2 of the act to amend the city charter, passed March 16, 1839. By this section, the city council have power to open, by ordinance, any street, and to condemn any real estate necessary for that purpose, by making the owners compensation for the value thereof, or for the damages they may sustain thereby; and to make any ordinance not inconsistent with the act, to ascertain all damages and benefits that may accrue to the real estate in the section, etc., and to provide for a final adjustment by the assessment and collection of a special tax. “ Provided, that the city council shall provide by ordinance for the review of any assessment or valuation, or any part *thereof, which may be made under the provisions of this section by the appointment of two freeholders on the part of the city, two by the parties aggrieved, and the fifth by the four thus appointed.” In the action of the city council, this proviso has been so construed as to deny to the defendants in error their right of selecting two of the freeholders to act as a part of the board of review. The property of several persons was affected by the improvement in question. Some sustained heavy damages; others were taxed to pay the damages. The ordinance, as construed by the city council, requires all those interested to unite in selecting two freeholders; and therefore they refused and omitted to place before the board the two persons selected by defendants to act in their behalf in reviewing the assessment of damages returned by the board of assessors. Wo do not think this was in accordance with the spirit of the charter. It was never the intention of the legislature to authorize a condemnation of their property, and to deny them the right to be heard before a jury of their coun try on a claim for damages, without providing the means of a full and fair investigation before a fair and impartial tribunal. In the first instance, the charter is so drawn as to permit the city authorities to name the person to assess damages; and by that assessment, when returned, the city may well be bound. It should be final upon the city, for it is the assessment of its own tribunal; but the aggrieved property holder should by no moans bo compelled to abide the determination of the board of assessors so chosen. He ought to have his day before a court of Ms choice, in a matter like this, where the proceeding is designed to supersede the necessity of a resort to the courts of justice.

In the proceedings offered in evidence below, as a defense to this suit, it appears that the only committee of review allowed to the defendants, was a committee chosen—two on tho.part of the city, two selected by the majority vote, not only of all the owners of condemned property who had sustained damages in consequence of the improvement, but of *all those whose property was assessed for the payment of those damages, united together; and these four were to select the fifth. This process, instead of giving each of the owners of condemned property privilege of selecting two disinterested freeholders, and placing them upon the board, gave to those equally interested—those who eventually would be required to pay all damages, the power of defeating their choice, and of having placed, upon the board of reviewers, men more directly opposed to their interests; and less likely to be acceptable, than any that the city council would have selected. If the object was to give an equal chance and a summary remedy, a more absurd mode of accomplishing it, or a surer method of defeating it, could not well be imagined. The act of incorporation will not bear a construction that will sustain the practice of the city council under it, and can not receive it without a departure from the spirit of the act itself.

Two things are provided for: 1. The assessment of damages for property appropriated. 2. Assessment of a special tax, to create a fund adequate to discharge these damages. These are distinct things, necessarily antagonistical. The first must be ascertained as a basis upon which to act in ascertaining the second. In the first, the party claiming is represented; in the second, the parties paying. From the very nature of the respective duties, they should not be blended and imposed upon the same board. Again, each individual suffering a destruction of his property is entitled to prompt payment. This the charter was intended to provide for. Hence, the necessity of a tribunal that could promptly adjust the sum to be paid. Nothing can be more cumbersome or annoying than to be subjected to the delays attendant upon the adjustment of numerous distinct claims, which may require an investigation of weeks or months, whereas the review contemplated by the charter, is a speedy mode of settle-merit, a board for oach claimant that asks a review, and whoso powers and duties are to be limited to an investigation of the merits of his individual claim, ^leaving all of the damages assessed to non-complaining property holders as originally assessed; and all the special taxes required for the payment of the aggregate damages, to be assessed by a proceeding necessarily distinct.

The only other question which we have considered is, whether this action can bo maintained, inasmuch as the defendant elected to seek the redress intended to be secured by statute in the first instance. Had the statutory provision been made effectual by proper action on the part of the city council, we should, in accordance with prior adjudication, have held that the common-law remedy was superseded. But even if the ordinance would bear a construction consistent with our views of the statute, which is doubtful, it received from its framers a different interpretation and the statutory remedy was denied. The city, then, has violated the authority under which it assumed to act, has disregarded the terms upon which this special power was granted, and is a wrong-doer from the beginning. Having disregarded the authority of the statute, it can not claim the protection that might otherwise have been made effectual.

Judgment affirmed.  