
    Lewis, Auditor, etc., v. Symmes et al. Lewis, Auditor, etc., v. Taylor, Executor, et al. Bader et al., Commissioners, etc., v. The Cincinnati, Portsmouth & Virginia Railroad Company.
    
      Change in judicial opinions — Respecting validity of legislative enactment — Should not give retrospective operation to impair obligation of contract — Entered into in relianc eupon former adjudication — Owner of lands may enjoin assessment for improvement under an unconstitutional act, when.
    
    1. The rule that retrospective operation should not be given to a change in judicial opinions respecting the constitutional validity of legislative enactments can be invoked only to avoid the impairment of the obligation of contracts which have been entered into pursuant to statutory provisions and in reliance upon former adjudications respecting their validity.
    2. The owner of lands within an assessment district defined in an unconstitutional act for the improvement of a public highway, not having promoted the making of the improvement, may enjoin the collection of an assessment to pay for such improvement in a suit for that purpose begun when an attempt is made to enforce the assessment. He is not required to begin such suit at an earlier day, though he may know of the improvement and of the intention to make the assessment. Columbus v. Agler, 44 Ohio St., 485, followed.
    (Decided January 9, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    The defendants in error brought several suits in the court of common pleas for injunctions to prevent the collection of assessments upon their lands for the improvement of Columbian avenue in Hamilton county, relying upon the constitutional invalidity of the legislative act under which the improvement and the assessments were made. The substance of the act is as follows: ...
    
      An Act.
    To open and improve an avenue in Columbia township, Hamilton county, Ohio, to be known as Columbian avenue.
    Section 1. Be it enacted by the General Assembly of the State of Ohio, That the county commissioners of Hamilton county be and they are hereby authorized and required to open, grade, gravel, macadamize and improve Columbian avenue in Columbia township, Hamilton county, Ohio, along the following route, to-wit: Forty (40) feet in width on each side of the following described center line, beginning at a point near the center intersection of the Brotherton road and Redbank avenue in section sixteen (16), thence south fifty-four (54) degrees fifty-five (55) minutes west, west twenty-three hundred and ten (2,310) feet to a stake; thence south forty-eight (48) degrees nineteen (19) minutes west three hundred and fifty-two (352) feet to a stake; thence south twenty-seven (27) degrees three (3) minutes west twenty-six hundred and ninety-seven (2,697) feet to a stake; thence north eighty-six (86) degrees fifty-three (53) minutes west, parallel with and eight hundred (800) feet south of the south rail of The Cincinnati, Portsmouth and Virginia Railroad, twenty-four hundred and eighty-three (2,483) feet to a stake; thence by curved line to the left of a radius of one hundred and forty-six (146) feet, three hundred and fifty (350) feet to a stake; thence south forty-three (43) degrees fifty-one minutes east two hundred and ninety-five (295) feet to a stake; thence by a curved line to the right of a radius of two hundred and seventy-seven and sixty-six hundredths (277.66) feet, four hundred and five (405) feet to a stake; thence south thirty-nine (39) degrees nine (9) minutes west four hundred and five (405) feet to a stake; thence south fifty-nine (59) degrees thirty-nine (39) minutes one hundred and fifty (150) feet to a stake; thence south eighty (80) degrees twenty-four (24) minutes \vest two hundred and fifty (250) feet to a stake; thence north eighty-four (84) degrees four (4) minutes west about twenty hundred and fifty (2,050) feet to a point in the center of the Paxton road. The said commissioners are hereby instructed to improve said avenue in accordance with the plans, grade, and survey now on file in the county surveyor’s office of said county.
    Section 2. One-half of the cost and expense of said improvement shall be assessed upon and collected from the owners of the lots and lands and from the lots and lands situated in and within the bounds of the northwest quarter of section fifteen (15), the south half of section sixteen (16), the south half of section twenty-two (22), and the east half of section twenty-seven (27), and all of section twenty-one (21) of township four (4), fractional range two (2), Hamilton county, exclusive of any improvements thereon and in proportion to the acreage thereof, and the remaining one-half of the cost and expense of the said improvement, together with the interest on any bonds issued by the commissioners for the same, shall be levied and assessed upon all of the taxable property of said county, and said assessment shall be divided into five (5) annual payments.
    Sections 3, 4 and 5 provide for the appointment of viewers by the county commissioners, for the giving of notice by the viewers, for the presentation to them of claims for damages for the making of the improvement and the estimating of the costs thereof by the viewers. Sections 6 and 7 provide for the issuing of bonds of the county to raise the money necessary to meet the expense of making the improvement, for the making of the assessments, and the levying of a general tax to meet one-half of said expense. Section 8 required the commissioners “to begin forthwith the making of said improvement.” Section 9 provided that the act should take effect upon its passage. It was passed April 12,1893. (90 L. L., 217).
    The answers admit that the defendants, relying upon the validity of said act, proceeded to carry out its provisions by making the improvement according to its mandatory requirements; averring that the road was of general benefit to the people of the county and of special benefit to the plaintiffs; that the plaintiffs had knowledge of the intention of the commissioners to make such improvement pursuant to the provisions of the act and to assess one-half the costs thereof upon the lots and lands described in the second section of the act, but took no steps to prevent the improvement except that some of them presented to the commissioners protests against the same, and that relying upon their acquiesence and the validity of the act bonds of the county to the amount of $45,000 were issued, and that the county is without means for the payment of a portion thereof except said assessments; and that said act had before the making of said improvements been adjudged valid by the circuit court of Hamilton county. The answers further allege against the plaintiffs, Anna Symmes and Anna Hayward, that they had presented to the viewers appointed by the commissioners under said act claims for damages for land taken from them for the making of said improvement, and that such claims had been allowed and paid.
    In the court of common pleas it was adjudged that the facts alleged in these answers did not constitute a defense, and perpetual injunctions were allowed as prayed for. On petition in error the circuit court affirmed the judgment of the court of common pleas.
    
      Rendigs, Foraker & Dinsmore, county solicitors, for plaintiffs in error.
    The reversal by the supreme court of a principle of law, theretofore declared and adjudicated by it, will not be permitted to operate to the injury of those who put faith therein, and regulated their conduct thereby. When the supreme court has decided a point which it subsequently, without qualification or equivocation, reverses all transactions occurring since the first decision, but before the reversal, should be judged by the principle established by the first case.
    The settled judicial construction of a statute, or a determination of its validity or constitutionality, enter into and become part of any contract made on the faith thereof, and a subsequent reversal of that judicial determination by any court will not affect the rights secured on the faith of the prior adjudication. All rights arising under the contract are to be adjudged by the principles established by the judiciary at the time the contract was entered into. Douglass v. County of Pike, 101 U. S., 677; Green County v. Conness, 109 U. S., 104; Anderson v. Santa Anna, 116 U. S., 356; Olcott v. Supervisors, 16 Wall., 678; Gelpcke v. Dubuque, 1 Wall., 175; The State v. Lamson, 9 Wall., 477; Taylor v. Ypsilanti, 105 U. S., 60; Louisiana v. Pillsbury, 105 U. S., 278; Rowan v. Runnells, 5 How., 134; Ohio Insurance Co. v. Debolt, 16 How. 432.
    It might occur to one following the argument that as persons contract with the declared law in mind, and as such law becomes a part of the contract, any change thereof, by the reversal of the declared law by a judicial decision, would be a law impairing the obligation of the contract, and, consequently, void under the constitution of the United States and of the state. None of the cases which we have cited are based upon this theory and could not be. The supreme court of the United States in other cases directly involving the question, has determined that the word “law,” as used in the clause of the constitution referred to, does not mean a judicial decision, but a statute, an ordinance, or a state constitution. Consequently, the reversal of a principle by a subsequent case would not be a law impairing the obligation of a contract. Water Works Co. v. Sugar Refining Co., 125 U. S., 18; R. R. Co. v. Rock, 4 Wall., 177; Brown v. Smart, 145 U. S., 454.
    The rights of citizens, their conduct and relations assumed or imposed upon them under an existing state of the law, as determined by the decisions of the highest court having jurisdiction, should be judged by the law as it existed at the time the transactions occurred. The law of the land, of which we have heard so much and which gives character to any transaction, and by which the transaction should be judged if justice is to be done, is the law that arises with the case, and constitutes a part of it when it becomes complete as between the parties. Consequently, the reversal by the highest court of an existing state of law under which a transaction arose, whatever may be the nature of it, should not affect the transaction, but should be given prospective operation, Menges v. Dentler, 33 Pa. St., 495; Hardigree v. Mitchum, 51 Ala., 151; Hollinshead v. VonGlahn, 4 Minn., 190; Kelley v. Rhoades, 51 Pa. Rep. (Wey.), 593.
    The constitution of 1851 of this state prohibits the legislature from passing retroactive laws. Section 28, article 2. It distinguishes between retroactive laws and laws impairing the obligation of contracts, for the two terms are used in the same section.
    The first constitution of the state contained no provision against retroactive legislation, and it might have been assumed that in the absence of such prohibition the legislature had the full power to pass retrospective laws, unless they violated rights secured under a contract. But this court did not so determine. Retrospective or retroactive laws that violated no principle of natural justice, but on the contrary, were in furtherance of equity and good morals, were sustained by the court under the constitution of 1802. Trustees v. McCaughy, 2 Ohio St., 152; Butler v. Toledo, 5 Ohio St., 225; Commissioners v. Rosche Bros., 50 Ohio St., 103.
    We also call attention to the article by Simeon Nash, on the constitutionality of retrospective statutes, found in 2 W. L. J., pages 170 and 197.
    The question of contract and the constitutional provision against impairing the obligation thereof does enter into this case. The provisions in a statute for the levying of a tax or an assessment to pay bonds issued thereunder become part of the contract, and are not affected by a subsequent repeal thereof. Goodale v. Fennell et al., 27 Ohio St., 426; Von Hoffman v. Quincy, 4 Wall., 535; Wolf v. New Orleans, 103 U. S., 358; Louisiana ex rel v. St. Martin’s Parish, 111 U. S., 716; Seibert v. Lewis, 122 U. S., 282; Louisiana v. Pillsbury, 105 U. S., 278 and 294; Christy v. Pridgeon, 4 Wall., 196; State ex rel. v. New Orleans, 37 La. An., 13.
    The answers do not contain an allegation or any facts showing that the various plaintiffs promoted the improvement by petitioning therefor, or by actively participating in securing the road. The defense is estopped by silence, and was based upon the case of Tone v. Columbus, 39 Ohio St., 281.
    The case arose out of the improvement of High street, in the city of Columbus, under a special act of the legislature, which had been declared to be unconstitutional in the case of The State ex rel. v. Mitchell, 31 Ohio St., 592. The statement of the case shows that, among the various plaintiffs who were contesting the assessment, there was a class consisting of those who had, in no wise, actively participated in any manner in securing the improvement. The report of the case, when it was retried, shows that there were twenty-three property owners who were designated as the “silent ones.”
    After the re-trial of the Tone case, it again reached this court in three separate cases, one being the City of Columbus v. Agler, 44 Ohio St., 485. It was the decision of the court in this case which the Circuit court adopted as being the latest declaration of the law, reversing the Tone case. It will be noticed that the opinion of the court in the Agler case does not mention the Tone cáse.
    But, even if this court in that case meant to assert a contrary doctrine than that set forth in the Tone case, with the latter case still unreversed, it is not improper to ask this court for a consideration of the principles asserted by these two cases. The Agler case contains no argument whatever against the doctrine of estoppel by silence, while the Tone case elaborately presents the authorities in its favor. In addition to those contained in that opinion, we cite the court to the following cases, which fully sustain the Tone case: Ritchie v. South Topeka, 38 Kansas, 368; Lundbom v. Manistee, 93 Mich., 170; Fitzhugh v. Bay City, 109 Mich., 581; Taber v. Ferguson, 109 Ind., 227; Hollenkamp v. City of Lafayette, 30 Ind., 192; Powers v. Town of New Haven, 120 Ind., 185; New Haven v. R. R. Co., 38 Conn., 422.
    The Agler case refers to another principle which was theretofore determined by this court. It is there said that the improvement of the street was not upon the property of Mrs. Agler, and no part of her land was taken therefor. This was for the purpose of bringing the case within the principle of Wright v. Thomas, 26 Ohio St., 346, and to distinguish it from Kellogg v. Ely, 15 Ohio St., 64. The case of Kellogg v. Ely was fully and correctly explained in Tone v. Columbus. It was there shown that the case was based upon the rule of equity that a person who is guilty of an unreasonable delay in asserting his rights cannot get relief from a court of equity. It did not establish the doctrine of estoppel by silence, nor did it restrict the rights of the taxpayer under the act of April 10,1856, now sections 5848 and 5851, Revised Statutes. Its supposed authority had been somewhat impaired by the decision in the Tone case, assigning it to its proper place in the jurisprudence of the state. The Agler case seems to re-assert the Kellogg case, and to give full effect to the principle, that a party on whose land an improvement is made cannot contest the assessment therefor, if he has stood silently by. Goodwillie v. Detroit, 103 Mich., 283.
    
      Symmes & Hayward, for defendants in error.
    Active participation in promoting the improvement would work an estoppel, but quoting from the brief of plaintiff in error the lines, “The answers do not contain any facts showing that the various plaintiffs promoted the improvement by petitioning therefor, or by actively participating in securing the road,” relieves the subject of discussion on that point.
    
      Silence to work an estoppel must be of such a character as will show a person has been guilty of unreasonable delay in asserting his rights or performing his duty. Kellogg v. Ely, 15 Ohio St., 64; Tone v. Columbus, 39 Ohio St., 381.
    It is to be observed that the petition and answer disclose that the defendants in error March 1, 1893, leased all their lands set out in the petition to Til-den R. French, for a period of five years, to be completed and ended March 1,1898, and it will be noticed that this lease was made prior to the passage of the act and terminated after the road was completed and the assessment levied. Also, that the lease contained a covenant that French should pay all the taxes and assessments on the land, and should have an option of purchase at a fixed price at any time during the lease. It now clearly appears that the defendants in error were not in possession of the land at the time of the passage of the act and work under it, and were not the real parties in interest. The defendants could not have brought an action had they knowledge of everything doing and to be done without making French a party, and then French, had they done so, had the right of election to pay the assessment, or to both pay the assessment and purchase the lands, and the defendants in either event were not damaged. No injury could, with certainty, arise to the petitioners until the expiration of the lease, March 1, 1898, and then only in event the land returned to them with the assessments unpaid. How, then, can it be claimed that the defense of equitable estoppel by silence can be maintained when no duty devolved upon the defendants in error to speak until they were injured. (Agler case.) They certainly had no reason to anticipate that French would fail in his agreement to pay, even if he might not take the lands under his option. French’s silence is personal to him and cannot be charged to defendants in error. French was not their agent, and they to be estopped can alone be charged with their conduct and failure to perform a duty obligatory on them. Having no knowledge of a certainty of their ultimate injury, they can not be charged with a failure to speak in objection to the improvement, as it was impossible to say whether it would ever damage them. A person is not estopped by silence when there is no positive duty and opportunity to speak. Bramble v. Kingsbury, 39 Ark., 13; Terre Haute Road v. Rodel, 89 Ind., 128; Viele v. Judson, 82 N. Y., 32; Deffenbach v. Vogeler, 61 Md., 370; Bull v. Rowe, 13 S. C., 355; Mills v. N. J. Cent. R. R., 41 N. J. Eq., 1.
    There can be no duty to speak if the party has no knowledge that he will be injured or of his own rights. Brigard v. Stillwagen, 41 Mich., 54; Counterman v. Dublin Township, 38 Ohio St., 515; Cooley on Taxation, 573.
    
      R. de V. Carroll, for defendants in error.
    Conceding, for the sake of argument, that the Columbian avenue act, in question here, was constitutional under the principles established by this court in the case of State ex rel. Hibbs v. Commissioners, 35 Ohio St., 458, and that it would have been so declared by this court until that case was over-ruled by Hixon v. Burson, we claim that the rule contended for by counsel for plaintiff in error, to-wit, that this case should be determined by the construction of similar statutes, by this court, previous to the passage of the Columbian avenue act, should not apply.
    All the cases cited by counsel in support of this rule are cases which involve contract rights. But no contract right is involved in the case at bar, no meeting of parties have entered into obligations voluntarily, relying upon past construction of statutes by courts of last resort, and any other rule than the one upheld in the cases cited by counsel would unquestionably impair the obligation of contracts. But no contract right is involved in the case at bar, no meeting of minds as to what the law was at the time of entering into an obligation, has taken place; and none of the decisions relied upon undertake to extend the rule beyond that class of cases. Boyd v. Alabama, 94 U. S., 645.
    In Douglas v. Pike, 101 U. S., 677, and in Taylor v. Ypsilanti, 105 U. S., 60, it is stated in the opinions that “a change of decision is to all intents and purposes the same in its effects on contracts as an amendment of the law by means of a legislative enactment.”
    Let us see what would have been the effect on the case at bar had the Columbian avenue act been amended or repealed upon April 28, 1896, instead of the construction of the law changed on that date, by the decision of Hixon v. Burson, as claimed by counsel for plaintiffs in error.
    The assessing ordinance had not been passed.
    We claim that the assessment could not have been levied, in case of such appeal or amendment. Belvidere v. Warren R. R. Co., 34 N. J. Law, 193.
    The Columbian avenue act is unconstitutional under the ruling in the case of State ex rel, v. Commissioners, 54, Ohio St., 333, known as the “Paddock Road” case; without regard to the case of State ex rel. v. Commissioners or its over-ruling by Hixon v. Burson; and the “Paddock Road” case over-rules no settled line of construction laid down by this court. In fact, the decision in the “Paddock Road” case specifically reserves the question decided in Hixon v. 
      
      Burson. The first syllabus and the reasoning of the court in the first part of the decision in the “Paddock Road” case is fatal to the Columbian avenue act. The latter act is clearly administrative and not legislative, and consequently unconstitutional.
    Again must the contention for counsel for plaintiff in error fail, for the reason that the Columbian avenue act clearly violates the provisions of the Constitution of the United States and the Constitution of Ohio, in the fact that it arbitrarily assesses one-half of the cost of improvement upon .certain designated sections, without reference or regard to benefits. And we know of no decisions or settled rule of construction in this court or any other which could have misled the legislature in this regard when they passed the act, or the commissioners when they proceeded to construct the road. Norwood v. Baker, 172 U. S., 269. The Taylors are not estopped. The road did not touch their property; they did nothing to encourage the building of it; and they protested in writing against its construction before the work was begun. Everything that it was possible for them to do, to prevent the building of the road, they did, with one exception, they did not enjoin the commissioners before the commencement of the work; nor was it necessary that they should. Wright v. Thomas, 26 Ohio St., 346; Counterman v. Dublin, 38 Ohio St., 515; Columbus v. Agler, 44 Ohio St., 485.
    
      Hollister & Hollister, for defendant in error.
    In the case at bar no compensation was paid to the railroad company, and no inquiry was made as to benefits. The answer simply alleges that the railroad property was benefited without any allegation ,as to how, or to what extent or amount.
    
      The act being unconstitutional, the assessments are invalid. Cooley on Constitutional Limitations, 6th Ed., p. 222.
    Counsel endeavor to convince the court, by a long and labored argument, that, by reason of the premises, there was a contract between this defendant in error and the county commissioners to pay these assessments, and that if this court should hold these assessments invalid this supposed contract would be impaired, and cites numerous authorities, which he asks the court to read, and being cases in which the validity of bonds in the hands of innocent parties were upheld. There is a contract between the bondholders and the commissioners, but that contract can in no way be affected by any decision which the court might make in this case, and even if the bondholders’ contract could be affected, it would be no concern of this property owner, who is not bound by that or any other contract made by the commissioners. The circuit court, in passing upon the petition in error in this casé, in 18 C. C. 443, disposed of this contention.
    The plaintiffs in error rely upon the case of Tone v. Columbus, 39 Ohio St., 281, to create such an estoppel, but the circuit court very properly refused to follow said decision, but on the authority of Agler v. Columbus, 44 Ohio St., 485, held that no such estoppel existed in the case at bar. The Agler case holds that one who is merely silent, without actively participating, is not estopped. In the same connection we cite the case of Wright, Treas., v. Thomas, 26 Ohio St., 346; Dublin v. Countryman, 38 Ohio St., 515.
   Shauck, J.

It is admitted that the act under which the improvement was made is unconstitutional if tested by our recent decisions. It is, however, insisted by counsel for the plaintiffs in error that if tested by the decisions of this court rendered before the passage of the act, it would be found valid, and that only prospective effect should be given to the later decisions by which similar acts have been adjudged to be void. The definite point is that in State v. Commissioners, 35 Ohio St., 458, decided in 1879, this court held a similar act valid, and that case was not overruled until we decided Hixson v. Burson, 54 Ohio St., 470, in 1896, after the passage of the Columbian avenue act, and after the improvement for which it attempted to provide had been undertaken. It would be quite easy to point out that the Columbian avenue act has constitutional infirmities in addition to those found in the act which was held to be valid in State v. Commissioners. One such infirmity is indicated in State v. Commissioners, 54 Ohio St., 333, where it was not found necessary to overrule the earlier decision. But the consideration of the case may be advanced and full justice done to the argument of the counsel for the plaintiffs in error if we follow them in the assumption that when the Columbian avenue act was passed and the contemplated improvement was made, the belief that the act in all of its parts was valid was justified by rules of constitutional interpretation which had been defined in, or were deducible from, the former decisions of this court. It is not assumed that we had ever decided that this particular act is valid, for it is admitted that it was never before us.

The doctrine which is invoked as applicable to the case, in view of the assumed state of our decisions at the passage of the act, has been developed through many difficulties and over much opposition. This was inevitable because of the general recognition of the rule that legislative acts in contravention of constitutional limitations are void, and of the other rule that judicial decisions declare, but do not make, the law. Nevertheless, it appears from numerous cases, many of which are cited in the briefs, that the doctrine is now' established. It is, however, to be observed Avith respect to many of those cases that they involve the consequences of a change of decision as to the validity or interpretation of the same statute; and, Avith respect to all of them, that the rights which they enforce, notwithstanding the change of judicial decision, are rights resting in contract. An accurate statement of the rule and the reason by which it is supported will obviate error in its application. Such a statement is found in the opinion of Chief Justice Waite in Douglass v. County of Pike, 101 U. S., 677: “The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, making it prospective but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment.” This compendious statement of the rule and its reason meets the requirements of all the cases cited. Its purpose is to secure the full operation of the constitutional prohibition of laws impairing the obligation of contracts. It is apparent, alike from the terms in •which the rule is stated and from its reason and purpose, that it can be invoked only for the enforcement of rights which rest in contract. It does not appear that it has ever been applied to any other purpose. Since the valdity of the bonds issued by the commissioners under the Columbian avenue act is not drawn in question in the cases before us, it is quite evident that the courts below did not err in refusing to apply the rule stated. The position of the plaintiffs in error derives no support from Goodale v. Fennell, 27 Ohio St., 426, or the other cases of which it is a type. They merely hold that the constitutional provision against laws impairing contracts preserves not only the contracts themselves, but all existing remedies which are necessary to their practical enforcement. Nor is their position sustained by the cases in which, out of regard for the stability of their decisions, courts have refused to reconsider cases already decided in order that there might be applied different rules laid down in later cases. There appears to be no reason why these cases should not be determined by the general rule that unconstitutional enactments are nullities. Norton v. Shelby County, 118 U. S., 425. The plaintiffs in error assert no right arising out of contract, but seek to impose upon the property of a few citizens the burden of making the improvement, to the relief of the county whose representatives, according to a well known legislative custom, secured the passage of the unconstitutional act.

It is admitted that the parties who seek the relief from these assessments did not actively promote the improvement in any way. But it is contended that since none of them opposed it except by presenting ineffectual protests to the commissioners, they are now estopped to deny the validity of the assessment by which it was anticipated that one-half of the cost of making the improvement would be paid. The proposition is that since they did not take effective measures to prevent the expenditure of money for an improvement by which the public are benefited, and they are especially benefited, they should not now be heard to object to the validity of the assessments by which it was expected that money would be realized for the payment of the bonds. This proposition is said to be supported by Tone v. Columbus, 39 Ohio St., 281. The opinion of the circuit court shows that this point was there determined on the authority of Columbus v. Agler, 44 Ohio St., 485. The relation of these cases is intimate. The later case arose in the circuit court of Franklin county where that court, as the successor of the district court, was engaged in determining the validity of assessments for the improvement of High street, pursuant to the mandate of this court in the Tone case, and in the later case it was determined that inasmuch as the public, in making the unauthorized improvement, was upon a street which it owned and was not a trespasser as to Mrs. Agler, “she was not required to do anything until steps were taken to make the assessments upon her property.” The application of this doctrine to the cases before us is obvious. If, therefore, Tone v. Columbus would justify the purpose for which it is cited, it must be regarded as modified by Columbus v. Agler. That it was not intended to give such important effect to a void enactment should be inferred from the fact that the court did not either over-rule or modify Wright v. Thomas, 26 Ohio St., 346, which is full authority for the proposition that the doctrine of estoppel cannot be invoked in a case of this character.

Judgments affirmed.  