
    Philip Welker v. Emory D. Potter and Wife.
    
      1 In the act of April 5, 1866 (63 Oliio L. 133), it is provided that when it shall be deemed necessary by the council of any city embraced in that act, to make the improvements therein mentioned, it shall be the duty of the council to declare by resolution the necessity of such improvement, which resolution shall be published as specified in the act, briefly describing the character of such improvement, and referring to the plans, etc. The act further provides, that persons claiming damages on account of the proposed improvement, must file their claims with the city clerk within two weeks after the publication is completed, orto be taken to have waived them; and that it “ shall then be lawful for the city council, in their discretion, to provide by ordinance for such” improvement. Held, 1. That the adoption of the resolution declaring the improvements necessary, and the publication of the same, as required in the act, are conditions precedent to the exercise of the authority to pass a valid ordinance for the improvements, or make an assessment on the adjoining property to pay for them. 2. The failure to comply with such precedent conditions is not merely an irregularity or defect in the proceedings, provided for in the curative portion of the act. The irregularity or defect thus provided for is such as occurs in the exer- ' cise of lawful authority by the council. 3. An act of the general assembly that operates only upon all cities in the state of the first class, having,' at the last federal census, less than one hundred thousand inhabitants, does not contravene section 26 of article 2 of the constitution, which requires all laws of a general nature to have a uniform operation throughout the state.
    
      Motion for leave to file petition in error to reverse the judgment of the district court of Lucas county.
    The original action, commenced in the common pleas, February 22,1868, by Welker, was to recover of Potter and wife, and numerous other defendants, an assessment made by the city council of Toledo, for grading a portion of Jefferson +street, under an [86 ordinance passed by the council, June 4,1867. The defendants were owners of lots abutting on the street. None of them answered but Potter and.wife. The case wont to the district court by appeal. The material question in the case arose upon the demurrer to the reply to the amended answer filed in the district court. From these pleadings it appears that, at the time the ordinance directing the improvement of the street was passed, Toledo was a city of the first class, having a population loss than one hundred thousand,' at the last federal census, and that the city council never “ declared by resolution the necessity ” for the improvement, and never published any such resolution “ briefly describing the character of such improvement,” etc., as provided for by the act of April 5, 1866 (63 Ohio L. 133), but passed the ordinance and made the assessment without regard thereto. But the steps required by the act of February 21, 1866 (63 Ohio L. 22), were taken. The defendants occupied the lots assessed during the entire period occupied in the performance of the work on the street.
    The district court refused to give judgment for the amount of the assessment; and that is the error complained of.
    
      Kent, Newton, and Pugsley, made the following points in support of the motion:
    1. The act of April 5th (63 Ohio L. 133) does not repeal the act of February 21st (Ib. 22). Both acts were passed at the same term, and are supplemental to the same act, and the latter does not in terms repeal any other act. The former is general, applying to all municipal corporations. The latter applies only to certain cities.
    2. The act of April 5th, as it applies only to “ any city of the first class having a population less than one hundred thousand inhabitants at the last federal census,” contravenes section 26 of article 2 of the constitution of this state, which provides that “ all laws of a general nature shall have a uniform operation throughout the state.” When the act was passed there was but one city in the state to which it applied, and now there are but two.
    
      3. But if the city council should have followed the act of April 87] *5th, then the district court erred in disregarding the curative clause in that act (page 134), which provides “that in any proceedings against any such owner, if it shall appear that, by reason of any irregularity or defect whatever in the proceedings of the board of city improvement, or the ordinance, plans, or estimate aforesaid, the amount purporting to be due is not properly recoverable, still, on proof that the defendant was, at the time the materials were furnished and the work done, the owner of such lot or parcel of land, so much of the cost of said work and materials as would, if no irregularity had existed, have been properly chargeable, may be recovered,” etc.
    This is a much stronger case than that of Miller et al. v. Graham et al., 17 Ohio St. 1.
    4. This case also comes within the principle decided in Kellogg v. Ely, 15 Ohio St. 64.
    
      R. P. Ranney, contra.
    1. It is clear that the only authority given by the act of April 5, 1866 (63 O. L. 133), to pass an ordinance providing for the improvement and the assessment of the cost, etc., upon property, is made to depend upon the previous resolution as to the necessity for the improvement, and the notice as to its character. This is so, not only from the express language of the statute, but from the very nature of the proceeding. See Anderson v. Commissioners of Hamilton County, 12 Ohio St. 644.
    2. If the ordinance was passed without jurisdiction, and the assessment made was a nullity, the proceeding is not helped out by the provision relating to the effect of irregularities and defects.
    The case of Miller v. Graham, 17 Ohio St. 1, has no analogy to the present one; neither has the case of Kellogg v. Ely any bearing upon this one.
   By the Court.

The proceedings of the city council of Toledo, in passing the ordinance for the improvement in question, and assessing the expense of it upon the lots abutting on the street, 88] ^should have been governed by the act of April 5,1866. 63 Ohio L. 133. By the provisions of that act it was a condition precedent to the exercise of the authority to pass the ordinance and make the assessment, that the council should have declared by resolution the necessity of the improvement, and published the resolution, briefly describing the character of the improvement,, and referring to the plans, etc., as prescribed in the act. This precedent condition not having been complied with, the proceeding® of the council, in passing the ordinance and making the assessment, were without authority of law, and not such mere irregularities or defects in the exercise of lawful authority as are contemplated in the curative proviso of the act.

2. The act of April 5th has a uniform operation throughout the state upon all cities of the first class having a population less than one hundred thousand at the last federal census, and therefore i® not in contravention of section 26, article 2, of the constitution.

Motion overruled.  