
    Philip Upington, for himself and others, v. Schuyler R. Oviatt, Treasurer of Summit County, et al.
    1. The preliminary resolution declaring a proposed street improvement necessary, required by section 563 of the act of May 7, 1869, known as the municipal code, is not a resolution of either a general or permanent nature, within the meaning of section 98 of said act.
    2. The provision of section 100 of said act requiring all by-laws, resolutions, and ordinances to be recorded in a separate book kept for that purpose, is, with respect to the particular book in which the record shall be made, directory merely.
    3. If the provisions of section 563, relating to the publication of the preliminary resolution above referred to, are to be regarded, as between the city and the owners of the property assessed, as substantial and, peremptory, the failure to make such publication is, nevertheless, a defect which falls within the curative provisions of sections 550 and 551 of said act. Welker v. Potter, 18 Ohio St. 85, examined and distinguished.
    4. The provisions of section 562, prescribing the time and manner of advertising for bids for doing the work and furnishing the materials for the proposed improvement, were designed for the protection of the tax-payer, and are peremptory. A failure, substantially, to comply with those provisions, is a defect which goes to the legality of the contract and of the subsequent assessment.
    5. In such case, however, the assessment, while not conclusive, is not necessarily void. Under section 550, in a case where the improvement has been made, it may be enforced to the extent that expense has been incurred which is a proper charge upon the property assessed.
    ■6. The assessment as made not being, in such ease, conclusive and enforcible only in the circumstances and to the extent mentioned, the penalty prescribed by section 554, on failure to pay within the time limited, does not attach, and can not lawfully be collected.
    7. The entire expense of a street improvement may lawfully be assessed by the foot front upon the abutting lots, but where such assessment upon any lot would exceed twenty-five per centum of its taxable value, the excess which would otherwise be chargeable on such lot must be paid from the general revenue.
    8. In a case arising under the statute referred to, when it appears that the assessment placed upon the county duplicate for collection was made upon a wrong basis, by omitting property which ought to have been assessed, the collection of the assessment will be enjoined, but without prejudice to the right of the city to make a reassessment, and collect the same in accordance with the provisions of the statute.
    
      •9. Two or more of the several owners of lots assessed for a street improvement, claiming the assessment to he, for the same reason, invalid as to each, may properly join in an action to restrain the collection of the assessment; and when the parties thus similarly interested in the question are numerous, one may sue on behalf of himself and all others whom he is authorized to represent, and who might otherwise rightfully join in the action.
    Error to the District Court of Summit county.
    The plaintiff, Philip TJpington, suing on behalf of him,-self and ninety-four others, named in the petition, all of whom, he alleges, have, with him, a common and general interest in the subject of the action, brought suit in the 'Common Pleas of Summit county, to enjoin the collection of an assessment upon certain lots on Exchange street in the city of Akron, of which the plaintiff and the other parties named are the several owners. The assessment was made by authority of the city council, to pay the expense ■of grading and paving said street.
    It was alleged that the council, in the course of the proceedings, failed, in several particulars, to comply with the provisions of the statute, and that the assessment was, by reason thereof, without authority of law, and invalid. Upon the trial of the case in the District Court on appeal, -the petition was dismissed. The plaintiff, upon the overruling of his motion for a new trial, took a bill of exceptions setting out all the testimony. Prom the pleadings, .and the record of the proceedings of the council embodied in the bill of exceptions, the following appear to be the facts :
    On May 9, 1870, the council adopted a resolution declaring the proposed improvement necessary. The grade of the streetbeing afterward changed, on May 16th this resolution was rescinded, and a new resolution in the same terms, but referring to the grade as then established, was adopted. Publication of the resolution of May 9th was immediately -commenced, and was continued for the requisite time after the adoption of the resolution of May 16th, but no change was made in the form of the resolution as published. As published, it purported throughout to be a resolution adopted May 9th.
    Section 98 of the municipal code provides that all bylaws, resolutions, and ordinances of a general or permanent nature shall be read on three different days, unless three-fourths of all the members of the council shall dispense with the rule. Upon the adoption of the resolution of May 16th, these provisions were not complied with.
    It also appears that this resolution, although entered in the journal of the proceedings of the council, was not recorded in the book of ordinances.
    On May 1, 1871, an ordinance was passed providing for the improvement of the street throughout its entire length, as contemplated by the resolution of May 16, 1870. It provided for making advertisement for bids for doing the work as required by law, and further provided “that the cost and expense of said improvement, except as otherwise-directed by statute, be estimated and assessed equally upon each and every foot front of the several lots and parcels of land bounding and abutting on said street.”
    The estimated expense of the improvement exceeded #5,000, and two newspapers were published in the city. In one paper the publication of advertisement for bids for constructing the improvement was commenced May 3d, and in the other, May 10th. The bids were to be, and were, received and opened May 24th. The statute required advertisement in two papers for the period of four weeks.
    Two assessment ordinances were adopted, and two assessments made. The first ordinance was passed January 3d, and the second, August 12,1872. The first assessment was-at the rate of sixty-six cents per- foot front, for a part of the street, and forty cents for the remainder. On the-second assessment, these rates were, as to the different sections of the street, reversed, so that together they constituted a uniform rate on the property assessed of fl.Od per foot front.
    
      The aggregate amount of the two assessments, as to some of the lots, exceeded twenty-five per centum of their taxable value. The excess, as to each lot with respect to-which it occurred, was remitted by the city, and the unpaid assessment upon all the lots certified to the county auditor, and placed on the county duplicate for collection.
    The street improved was wholly within the city limits, but a tract of land belonging to one Chapman, adjoining the street on the south, and having a frontage on the street, as improved, of one thousand or more feet, was not, at the commencement of the proceedings, within the city. The-council made a contract with Chapman, by which he agreed to pay his just proportion of the cost of the improvement,, not exceeding the rate per foot assessed upon the other lots abutting upon the street; the amount to be paid to be determined by three persons named by the parties. The-Chapman land was annexed to the city in March, 1872, after the first and before the second assessment. This tract was not included in either assessment. The first assessment was made during the progress of the work, and was intended to cover only a part of,the expense of the improvement. The second assessment ordinance made no reference-to the first, but it, together with the first, was intended to-cover the entire cost. At the time it was made, however, the improvement had not been completed. A substantial part of the work at the time the suit was commenced, and at the time of the trial in the District Court, still remains unperformed.
    
      Tibbals Sf Hanford, attorneys for plaintiffs :
    I. The right of the plaintiff to proceed for himself and. others when the question is one of a common or a general-interest of many persons, or when the parties are very-numerous, is clear. Civil Code, sec. 37; Matheny et al. v. Golden, 5 Ohio St. 361.
    II. The right of the plaintiff to relief by injunction in a proper case, is conferred by statute. S. & C. 1151; and recognized by the courts, Nash’s Pl. & Pr. 440; Matheny 
      
      et al. v. Golden, Treas., 5 Ohio St. 361; Frazer et al. v. Siebern et al., 16 Ohio St. 615. This case is clearly contemplated by the statute.
    III. The proper passage and due publication of the resolution declaring the necessity to grade or otherwise improve streets, are fundamental steps to confer upon city councils
    Jurisdiction. Sessions v. Crunkilton, Treas., etc., 20 Ohio St. 349; Welker v. Totter, 18 Ohio St. 85; Corry v. Gaynor, 22 Ohio St. 593. The resolution deeming it necessary to grade and improve Exchange street, was read but once, and then pretended to be passed at the same council meeting. The failure of the city council to read this resolution on three different days, or three times on a less number of •days, under a suspension of the rule, would seem to be entirely fatal to all subsequent valid action. If the resolution was either general or permanent, then no resolution was ever passed by the council to grade and improve Ex'•change street. A resolution, declaring the necessity of an ■'improvement which is to affect all the property and its numerous owners on a street extending entirely through -the city of Akron, nearly two and a half miles, is so comprehensive in its effects as to be properly termed “ general.” It was made a distinct taxing-district. The resolution in•cludes all in the district to be taxed. That the resolution is of a permanent nature, there can be no question. It was passed May, 1870 ; is in full force and effect, and will he for all time. It is of as high degree, as to permanency, as the ordinance to make the improvement, and no more per-manent action than this can be taken by a city. A resolution securing the exercise of powers so extensive in ■their nature — the foundation of lasting improvements, the basis of enduring changes in the rights both of persons rand property — is certainly permanent.
    IV. The resolution was not recorded in the record-book •of ordinances, or “ in a book kept for that purpose,” as the law requires. Municipal Code, sec. 128; Laws, 1870, p. 71, sec. 100. And see Blanchard v. Bissell, 11 Ohio St. 101.
    V. A further fatal objection is that the resolution dedaring the necessity of grading was not published at all. Welker v. Potter, 18 Ohio St. 85. The statute requires publication. 67 Ohio L. 81, sec. 563. The only resolution that" was published directs attention to and gives notice of an ordinance passed May 9, 1870, to establish the grade upon Exchange street; but the ordinance of May 9th has no-validity, and was, in effect, repealed and substituted by an ordinance passed May 16, 1870, to change and establish the-grades upon Exchange street. The published resolution gave notice to persons interested that the street would be-changed and .graded according to the ordinance of May 9th. So that the parties may have, as in this case they did have, no objection. But the change and grade was-done under the ordinance of May 16th, and when completed,., are the parties to be told that they are forever barred from filing any claim for damages, because they did not speak., when they were notified that the change and grading was • to be done under an ordinance to which they had no objection, but was in fact done under a different ordinance ?
    VI. The advertisement for bids for making this improve- - ment was not published in any two of the newspapers published in the corporation, for the period of four weeks in each, as the statute requires. Ohio L. 1870, p. 81, sec. 562. This was admitted by the defendant. There was twenty-six days’ publication in the Beacon, and nineteen days in,, the Times.
    
    When the statute requires an advertisement of four-weeks, it is not sufficient to make four publications, but the publications must be made for the full period of twenty-eight days. 6 How. 47; 1 Handy, 39; 1 West. Law Monthly, 704. This extended notice to contractors for - bids is required by law for the protection of the parties interested, who must pay the expense.
    VII. The next fatal defect is that the city council passed two ordinances, making special or partial assessments to - pay a portion of the cost and expense of said improvement,., which is not permitted by the statute (Ohio L. 1869, p. 247, sec. 577, and Laws, 1870, p. 82, sec. 576), and the second assessment is not pro rata with the first.
    VIH. The assessments do not fall equally upon each and every foot front of the property upon the street, nor are they made according to valuation, as provided by law. Laws, 1870, p. 82, sec. 576. And some of the projaerty on the street is assessed in excess of twenty-five per cent, of its valuation, while more than 1,000 feet front of property on this street, known as the Chapman property, is not assessed at all. The omission to tax Chapman’s property vitiates the whole tax. Weeks v. City of Milwaukee, 10 Wis. 242; 3 Ohio St. 33.
    The rule of apportionment, whether by the foot front or a percentage upon the assessed valuation, must be uniform, affecting all the owners and all the property on the street alike. The North. Ind. R. R. Co. v. Connelly, 10 Ohio St. 165; Cooley’s Con. Lim. 495.
    The doctrine of waiver and estoppel does not apply. It is no concern of the plaintiff what the authorities may do upon a street, until he is called upon to pay his assessments. Ballard v. The City of Appleton, 26 Wis. 67.
    The errors complained of are not merely formal, and such as can be cured. They are vital, essential, and void for want of jurisdiction, and a party can not waive the right to take advantage of them. 11 Ohio St. 102; 18 Ohio St. 85.
    The case of Kellogg v. Ely, 15 Ohio St., has no application to the present one.
    
      K. W. Stewart and E. Oviatt, for defendant:
    I. This court has no jurisdiction, the plaintiff not having shown, by his pleadings or proof, but that he has an adequate remedy at law. Critchfield v. Porter, 3 Ohio, 518; 4 Ohio, 223; 7 Ohio (2 pt.), 175; 11 Ohio, 42-45; 10 Ohio St. 45-55.
    II. The suit can not be maintained by plaintiff in behalf of the others for whom he sues. Boughton v. The City of 
      Brooklyn, 15 Barb. S. C. 375; Van Santvoord’s Pl. (2 ed.) 126; Corry v. Gaynor, 22 Ohio St. 584; 19 Wis. 93.
    The case of Matheny v. Golden, 5 Ohio St. 361, cited by plaintiff, does not apply.
    III. The resolution of May 16,1870, was neither of a general nor permanent nature.
    
      General — “ Relating to or comprehending the whole community.”— Webster.
    
    This resolution affected ninety-four persons out of a population of over fifteen thousand. If the improvement had been ordered to be made in front of one man’s lot, it could with equal propriety be called general. It was not permanent. It related to a single local improvement, and when the work was done and paid for, it ceased to exist or have any vitality whatever. Blanchard et al. v. Bissell, 11 Ohio St. 104.
    IV. The resolution was recorded in a book kept for that •purpose. Section 100 of the code (Laws, 1870, p. 71) does not provide that the resolutions shall be kept in a book used for that purpose alone, but in some book, as evidence of the fact of their existence.
    V. We claim, and the record shows, that the resolution was published, and although the resolution of May 16th (by mistake) stated that it was passed on May 9th, yet the plaintiff treated this motion as referring to the resolution of May 16th, filed his claim for damages under it, recovered his judgment, and pocketed the proceeds, which he still holds.
    VI. If the advertisement for bids was insufficient, and the tax therefore void, the plaintiff ought then to have made his objection by suit to enjoin the council from entering into the contract until the time had fully expired. 15 Ohio St. 64.
    VII. The tax ordinance was not illegal.
    The plaintiff admits, and the proof shows, that the two ordinances, when taken together, assess an equal tax on every foot front on the whole street, and the first assessment being insufficient, council had a right to reassess. See Laws, 1869, pp. 242, 243, secs. 551, 552, 559; also, 5* Ohio St. 230.
    VIII. In all oases where the assessment was in excess of twenty-five per cent, of the valuation, the city has remitted such excess.
    The case of Ind. R. R. Co. v. Connelly, 10 Ohio St. 165, cited by plaintiff, is not in point. The issues are not the' same.
    The plaintiff, by receiving the money paid by the city for damages, and by standing by, without objection, and' seeing the work progress from month to month for more-than a year, until he has reaped all the benefits, has waived any rights he may have had, and is now estopped from 'setting them up.
   Stone, J.

Several of the objections taken on behalf of' the plaintiff to the proceedings of the city council are, in our judgment, without foundation. In the first place, it is said that the preliminary resolution required by section 563 of the municipal code, declaring the necessity of the-proposed improvement, was not adopted with the formalities prescribed by section 78. It was not read on three-different days, nor was such reading dispensed with by a vote of three-fourths of the members elected. Whether this section is to be regarded as directory merely, or Whether a compliance with its requirements constitutes, in any case, a condition precedent to the validity of any resolution or ordinance falling within its provisions, it is not necessary now to determine. The resolution in question was not, in our judgment, one of that character. It was-not a resolution of either a general or permanent nature. It did not relate to the streets of the city generally, but to a particular street, and a particular improvement. It made no provision for the future; it prescribed no rule of conduct or' duty, but simply declared an existing fact. Blanchard v. Bissell, 11 Ohio St. 96. As a resolution expressive of the conclusion of council that the improvement was-necessary, its office was accomplished upon its adoption-It was required to be published, that all persons interested' might have notice of the fact that it had been adopted.

In the second place, it is said that, with respect to this resolution, the provisions of section 100 of the code, relating to the recording of by-laws, resolutions, and ordinances, were not complied with. The resolution was recorded in the journal of the council, but not in a book kept for that purpose. That this' provision, with respect to the particular book in which the record is to be made, is merely directory, and was not intended to affect the validity of any resolution or ordinance, is manifest. No negative words are used in connection with this requirement, while, with respect to another provision of the same section, relating-to the same subject-matter, words of negative import are-employed. • Ordinances are to be recorded in the particular book referred to, and they are also to be published. Until published, they are not to take effect; but no such condition is annexed to the provision relating to the record. It-is also claimed that the council, having adopted the plan of assessing the abutting lots by the foot front, were, by section 543 of the code, precluded from fixing any rate which, in the aggregate, as to any of the abutting lots, would amount to more than twenty-five per centum of their value as appraised for taxation.

The section referred to will not bear this construction. As amended by the act of May 2,1871, it is in these words:

“ Sec. 543. In no case shall the tax or assessment specially levied or assessed upon any lot or land, for any improvement, amount to more than twenty-five per centum of the value of such lot or land, as assessed for taxation; the cost exceeding the said per centum, that would otherwise be chargeable on such lot or land, shall be paid by the corporation out of its general revenue.”

The council was authorized to cause the assessment to be made upon the abutting lots, either by the foot front or according to their taxable value. In either case, this section limits the assessment to twenty-five per centum of the value of the lots assessed, and it plainly contemplates that, ■when the former mode is adopted, a rate by the foot may lawfully be fixed, which, as to some of the lots, will exceed that limit. It provides for the relief of such lots, by requiring the excess to be paid from the city treasury, and, in this respect, deals with each lot separately. It is said that the rate in such case is not uniform, and that injustice results. A sufficient answer is that the rule is uniform; and to say that injustice results, is to assume that taxation by quantity, without regard to value is- the only just mode. Under the operation of this rule', if the rate fixed, as to any of the lots, exceeds twenty-five per centum of their value, an assessment by the foot front approximates, more or less closely, an assessment according to value. If the aggregate amount to be assessed is sufficiently large, it matters not which mode is adopted; the result of either is the same.

It is also claimed, on behalf of the plaintiff, that the preliminary resolution was not published, or, if it is to be regarded as having been published at all, that it was so misdescribed that there was, in this particular, a substantial failure to comply with the requirements of the statute; and it is insisted, upon the authority of Welker v. Potter, 18 Ohio St. 85, that the adoption and due publication of this resolution was a necessary prerequisite to the exercise of the power to charge, by special assessment, any part of the cost of the improvement upon the adjoining property. That case is not, however, in our judgment, applicable under the present statute. The statute under which it arose provided, in substance, that it should be the duty of the city council, where it was deemed necessary to improve a street, and charge the cost thereof upon the abutting lots, to declare, by resolution, the necessity of such improvement. The resolution was required to be published, and, within a limited time thereafter, all persons claiming damages, by reason of the proposed improvement, were required to file their claims, or be forever barred from asserting them. These preliminary steps having been taken, and the time for presenting claims having expired, the statute provided that it should then be lawful for the city council to provide for making the improvement, and for charging the cost thereof upon the abutting lots. The curative provisions of that statute related only to irregularities and defects in the ordinance, in the plans and estimates, and in the pro■ceedings of the board of city improvements, and did not reach the preliminary resolution. It is also to be observed ■that, under the statutes then in force, the city council had full power to improve the streets of the city, without adopting the preliminary resolution referred to. Such resolution was necessary only when the cost of the improvement was to be charged upon the adjoining property.

Under this condition of the statute law, it was held, in the case referred to, that the adoption and due publication of the resolution declaring the improvement necessary were conditions precedent to the exercise of the power to order the improvement, and charge the cost thereof upon the abutting lots. '

The preliminary resolution required by the statute now in force, under which the present case arises, has no special relation to the mode by which the necessary means are to he provided for paying for the improvement. Whether the cost of the improvement is to be assessed upon the adjoining property, or provided for, in whole or in part, by a general levy upon all the property subject to taxation within the limits of the corporation, is a question afterward to be determined. In either case, the provisions in relation to the adoption and publication of the preliminary resolution are alike applicable; and if the failure of the council to comply with these provisions would, in the one case, avoid this subsequent proceeding, it would have, it would seem, the same efíect in the other.

The result would be, that, although the work should be subsequently contracted, and the improvement made, the corporation would be without power to comply with the contract on its part, or to make compensation for the work done. The adjoining proprietors and the city would have the benefit of the improvement, but neither would be under obligation to pay for it. That this result, in a. case where the improvement has been made, was not intended by the legislature as a consequence, of such defect, may well be presumed, and is made clear by other provisions of the statute.

The present act, like the one under consideration, in< Welker v. Potter, fixes a time after the publication of the resolution within which claims for damages to any lot or' land occasioned by the improvement must be presented but, unlike that statute, it, in substance, provides, in section 571, a mode of assessing such damages in any case where-the party sustaining them, although he has not presented his claim within the time limited, is nevertheless, by reason of defects or omissions in the proceedings before provided for, not precluded from asserting it. And section. 550, referring to the proceedings authorized by the next preceding section for the collection of the assessment, provides-that, If, in any such action, it shall appear, that by reason, of any irregularity or defect, whether in the proceedings of the board of improvements or of the council, or of any other officer of the corporation, or in the plans or estimates, the assessment has not been properly made against any defendant, or upon any lot or land sought to be charged,, the court may, nevertheless, on satisfactory proof that expense has been incurred, wdiich is a proper charge against' such defendant, or the lot or parcel of land in question, render judgment for the amount properly chai’geable against such defendant or on such lot or land.” And section 551 provides that, Whenever it shall appear to the council that any special assessment is invalid by reason of, any in-formalities or irregularities in the proceedings, or when any court of competent jurisdiction shall adjudge any such assessment to be illegal, the council, whether the improvement has been made or not, shall have power to order a reassessment.”

Whether the publication of this resolution was so substantially defective that it was not constructive notice to-parties claiming damages on account of the proposed im~ provement, and not sufficient, therefore, to bar them from •asserting their claims after the time limited, is a question which does not now arise. It is sufficient for present purposes to say that, if the defect, as between the present parties, is to be regarded as substantial, it falls within the •above-cited curative provisions of the statute.

Section 562 of the code, as amended by the act of April 18, 1870, required, in the circumstances of the present case, advertisement for bids for the construction of the proposed ■■improvement to be published four weeks, in two newspapers published in the city. This provision was evidently intended for the protection of the tax-payer, and must be ■regarded as peremptory. It was designed to secure competition among contractors, and prevent favoritism and fraud. Not having been complied with, the defect is sub•stantial. It goes to the legality of the contract and of the .«ubsequent assessment. The contract having, however, been let, and the work done, the curative provisions of the •statute apply, and new relations between the parties arise. The result is, that while an assessment, regularly made, if ■the prior proceedings had been, in all substantial particulars, in accordance with the statute, would have been con■clusive, and would have constituted or made a legal charge upon the property included in the assessment. The statute not having been complied with in the particular last (referred to, the assessment is not conclusive, and is to be enforced only to the extent that expense has been incurred which is properly chargeable against the property assessed. The defect in the present case going to the legality of the contract, the property-holder, upon the question of the amount of the expense incurred, is not concluded by the ■contract price. The inquiry upon that subject is : "What, ,at fair and reasonable prices for labor and material, ought the improvement to have cost ? Upon the question whether the expense, or what portion of it, if any, is, within the meaning of the statute, properly chargeable upon the adjoining property, the ordinance under which the work was done and the assessment made must be regarded as conclusive. The statute leaves it to the city council to determine whether'an improvement of this character shall, subject to the limitations of section 543, be charged upon the adjoining property, or provided for, in whole or in part, by a levy upon all the taxable property within the corporation. The discretion thus vested in the council is a legislative discretion, and, in the present case, was exercised at the jjroper time, before the work was done or the contract let, by the passage of the oi-dinance of May 1, 1871.

It is apparent from these considerations that the penalty of ten per centum charged upon the amount assessed was-illegal. The assessment not being in itself a conclusive,, legal charge, and being enforcible only to the extent that' it is made to appear that expense has been incurred which is properly chargeable upon the property, no penalty attached. Upon this ground, therefore, the plaintiff is, to-this extent, entitled to relief. Beyond this, if it appeared, that no more, in the aggregate, than the reasonable value-of the work actually done was ratably charged’ upon the-abutting lots, as required by the ordinance under which the-improvement was made, there would be no ground for the exercise of the equitable jurisdiction of the court here sought to be invoked. But this does not appear. It is-not, indeed, alleged that the work, at the contract price,, cost more than it was reasonably worth; but the assessments include work not yet done, and with respect to-which, therefore, no expense has been incurred which, under section 550 of the act, is properly chargeable upon the-abutting lots. The two assessments were both invalid,, because not uniform, and because neither were made-upon the basis of including, as the ordinance required, all the lands abutting on the street. Taken together, they imposed a uniform rate upon the property assessed, but neither included the land of Chapman. His land abutted upon the street improved. It was annexed to the ■ city after the improvement was ordered, but before it was completed, or any enforcible assessment made. "We think the council should have caused this land to be included in the assessment. Municipal Code, sec. 561. Whether the city was authorized to make, and, notwithstanding the annexation, is bound by its contract with Chapman, or whether, in the actual circumstances, such assessment as against the latter could be enforced, are questions which can not now be determined. However that may be, the other lot-owners have the right to insist that the amount charged on their respective lots be fixed upon the basis of including in the assessment all the lands abutting on the street.

It is insisted, on behalf of the defendants, that the suit can not be maintained as a suit on behalf of the plaintiff and the other persons he assumes to represent. Eor myself, I am willing to say that I think the objection well taken. The petition ought, in my judgment, to be regarded as the petition of the plaintiff, Upington, alone, and the allegations with respect to the other parties he assumes to represent be treated as surplusage. My brethren are, however, of the opinion, that, under the code of civil procedure, the action is well brought by the plaintiff on his own behalf and on behalf of the other parties named in the petition; and such, therefore, is the decision of the court. Glenn v. Waddell, 23 Ohio St.

Eor the reasons indicated, the judgment of the District Court must be reversed, and the defendants enjoined from collecting the assessment made, but without prejudice to the right of the city to cause an assessment to be made and collected as provided by law.

Judgment accordingly.

Day, C. J., McIlvaine, Welch, and White, JJ., concur-  