
    John W. Cordeman et al. v. The City of Cincinnati.
    1. The act of March 14, 1864 (S. & S. 847), which provides for the sewerage of cities of the first class, containing a population exceeding eighty thousand inhabitants, does not empower the city authorities to contract for the construction of “ house connections ” with the street sewers, unless such house connections are made part of the plans and specifications, required by the act to be prepared and submitted to the inspection of the parties interested, on ten days’ notice in a newspaper of general circulation, and approved by the board of city improvements as a part of the plan or system of sewerage authorized by the act.
    2. Section 2 of the act of April 5, 1866 (S. & S. 858), confers authority on the city council to provide for the construction of such house connections only upon the recommendation of the board of city improvements, and in streets “about to be paved, macadamized, or otherwise permanently improved,” and the city authorities are not thereby authorized to contract for the construction of such house connections, except in view of the permanent improvement of the street where they are to be made, nor unless it appears that their construction was definitely recommended by the board of city improvements and approved by tho city council.
    Error to the Superior Court of Cincinnati.
    
      The original action was brought by Cordeman and Lewis., in the Superior Court of Cincinnati against the city of Cincinnati, to recover damages for the breach of a contract for the construction of sewers in the twelfth sewerage district of the city. The contract embraced the construction of all the main, 'branch, and lateral sewers of the district, including what are called “house connections” with the street sewers. All the work required to be done under the contract was performed, except that of constructing house connections; and this the plaintiffs were ready to perform,.. and would have done so, but the city council discontinued that part of the work, and refused to let them do it, by reason of which they claim that they sustained great damage in the loss of profits that they would thereby have-realized. The plaintiffs having received their pay in full for all the work.done under the contract, the suit was-brought to recover only the damages they had sustained by reason of the refusal of the city council to permit the construction of the house connections to the street sewers.
    It was claimed, on the part of the defendant, that an action could not be sustained on that part of the contract, for the reason that it was entered into on the part of the city without legal authority to make it.
    It appeared that, in the spring of 1866, all the proceedings were had, necessary under the act of March 14, 1864, to provide a general system of sewerage for the city; but house connections were not designated on the plan adopted, and filed, as required by the act, as a part of the sewerage-system of the twelfth sewerage district of the city.
    On September 21, 1866, the city council passed an ordinance authorizing the board of city improvements to cause house connections to be constructed in all streets containing' sewers which shall be paved, macadamized, or otherwise permanently improved, and to assess the cost thereof, on. the lots accommodated thereby.
    January 4, 1867, an ordinance was passed, requiring the-board of city improvements to “ cause to be constructed,, the sewers and drains, with all the necessary branches^. inlets, and appurtenances,” in the twelfth district of the city; and that the expense be assessed according to law and the ordinances of the city.
    February 19, 1867, specifications were filed for the construction of these sewers, including house connections, and the next day an advertisement was published for proposals for their construction.
    March 1, 1867, the proposal of the plaintiffs having been accepted, the board of city improvements recommended to the city council the passage of the following resolution :
    
      “Resolved, That the city auditor contract with Cordeman & Lewis to construct sewers and drains in Central Avenue and the lateral streets comprised in that portion of the twelfth severage district of the first division, lying between north line of Third and south side of Water street, as provided for by ordinance No. 384, passed Jauuary 4, 1867, for the sum of:
    For three and a half feet sewer, per lineal foot of brick .'...................................................... $6 23
    “ four feet sewer, per lineal foot of brick........... 6 95
    “ four and a fourth feet sewer, per lineal foot of brick........................................................ 7 37
    “ brick per thousand in man-holes, catch-basins, including all arches, gully-shoots, flues, and foundation timber in same, as per specification and plan................................................... 35 00
    Per lineal foot for 12-inch pipe, and laying the same 1 05
    “ “ “ 12 “ slants, “ “ 1 45
    íí « íí g « u u u gq
    For house connections of 6-inch pipe, including excavation and refilling..............................,.. 2 51
    “ all junctions and curves, 43 per cent, additional Per square foot for Daytou stone........................ 99
    “ cubic yard for excavation, including refilling... 91
    
      “ square yard for repaving.......■....................... 67
    “ lineal foot for dressed curb-stone, including inlet..........................................1.............. 3 50
    
      “ Any work done under the direction of the city civil •engineer, and which is not specified, to be paid for at a •price to be fixed by the city civil engineer.
    
      “In case it is found necessary by the city engineer to-change the size or shape of the sewer, or in any way alter or change the plan as proposed, at any point, or make an addition to the work in any way, either in branches or otherwise, an addition or deduction is to be made at the contract price for same, in proportion to the amount of material so increased or diminished, or such other reasonable compensation may be allowed as shall be determined by the city civil engineer.
    “ Six months time allowed to complete the work from date of contract.”
    March 6, 1867, pursuant to the ordinance of January 4, 1867, and the foregoing resolution, which was adopted by the city council, a contract was entered into between the-parties, in accordance with the terms of the resolution ; and-the contract concluded with the provision that payment should be made in accordance with an ordinance providing for the construction of sewers, and that the city should not be liable, in any event, for any part of the work, except such as may be chargeable upon the city in said sewerage-district, agreeably to the provisions of the acts of the legislature and the ordinance aforesaid, which provides that the-assessments authorized by law shall be delivered to the contractors in payment, on their discharging the city from, all liability on account of the contract.
    June 19, 1867, pursuant to resolutions of the city council, and a resolution of the board of city improvements offered ,by the city civil engineer, the plaintiffs were notified and instructed not to build any more house connections-under the. contract, except as directed by said board under the direction of the engineer.
    On the trial at' special term, a verdict was returned in favor of the defendant. A motion for a new trial, on the-ground that the verdict was against the law and the evidence, and for misdirection of the jury in the charge of the court, was overruled; and bills of exception were taken setting forth the evidence and the charge.
    
      The material part of the charge of the court to the jury was as follows
    1. “I charge you that it was necessary under the laws governing the city, that the plans directed to be made should show all the particulars of the sewers to be put down, and if such plans do not show any trace of the house connections, for the cutting off of which this suit was brought, then the city had no authority to put them in the contract, and the contract was void so far as it concerned this, and the plaintiff can not recover: provided the plaintiff did none of the work for which suit is brought.”'
    2. “ If the putting in of house connections was inserted in specifications, filed after the passage of the ordinance ordering the work to he done by council, and immediately before the advertisement, and was not shown by any plan which had been regularly adopted according to the act of 1864, or approved by council under the act of 1866, then the board of city improvements had no power to insert such requisition, and the contract is void so far as concerns this portion of the work never having been before council, and the plaintiff can not recover: provided the plaintiff did none of the work for which suit is brought.”
    Exceptions to all the rulings of the court were duly taken; and, on error at the general term of the court, the judgment, rendered in favor of the defendant at special term, was affirmed.
    To reverse these judgments, a petition in error is prosecuted in this court; on the ground that the rulings of the Superior Court in the charge to the jury, and in overruling the motion for a new trial, were erroneous.
    
      Wm. Disney, for plaintiff in error:
    The city council had power to order the improvement. Folz v. Cincinnati, 2 Handy, 261.
    When a municipal corporation acts illegally to the prejudice of an individual, it is liable to an action. Goodloe v. Cincinnati, 4 Ohio, 500; Evans v. Cincinnati, 2 Handy, 236; S. C., 5 Ohio St. 594; Akron v. McComb, 18 Ohio, 229; S. C., 15 Ohio, 474:
    The sewer act of April, 1861, as amended March 14, 1864 (S. & S. 847), made no change in this principle. It was merely supplementary to the act of March, 1860. See S. & S. 849.
    Before that act, no question would be raised as to the power of the city to order a contract like the one in question here. No part of the law of April 5, 1866 (S. & S. 858), except section 2, applies to Cincinnati. And the ordinance of September 21, 1866, on house connections, and the resolution, in this case, of March 1, 1867, are pursuant to said section 2. See also the act of January 26, 1867 (S. & S. 862).
    A corporation in Ohio can not avail itself of the benefits of a contract, and at the same time repudiate its obligation. Shoemaker v. Goshen Tp., 14 Ohio St. 569; S. C., 12 Ohio St. 624; Garrett v. Van Horn, 7 Ohio St. 327; Smead v. Union Tp., 8 Ohio St. 394; Weedon v. L. E. & M. R. R. Co., 14 Ohio St. 563; 16 B. Mon. 358.
    “ Corporations may be bound by the acts and admissions of their officers and agents acting in the ordinary affairs of the corporation so far as relates to the business usually .transacted by such officers and agents. The old notion in this matter has become obsolete.” N. E. Ins. Co. v. Schettler, 38 Ill. 166.
    
      J. Bryant Walker (for Walker & Conner), for defendant in error:
    I. When a power is conferred upon a municipal corporation to be exercised in accordance with certain prescribed forms, such forms must be strictly complied with; and where n contract has been made without compliance with such forms, it is not binding upon the corporation at all, and a fortiori the corporation can not be liable to damages for not allowing the work to proceed under it. Brady v. New York, 2 Bosw. 173, 183; S. C., 20 N. Y. 316; Cowan v. West Troy, 43 Barb. 48; Hodges v. Buffalo, 2 Denio, 113; Rhinelander 
      v. New York, 24 How. Pr. 304; Clark v. Des Moines, 20 Iowa, 454, and the note of Judge Redfield to this case in 6 Am. L. Register, N. S. 161, 162; Butler v. Charlestown, 7 Gray, 12; Donovan v. New York, 33 N. Y. 291; Zottman v. San Francisco, 20 Cal. 96; McSpedon v. New York, 7 Bosw. (N. Y.) 601; In the matter of Flatbush Av., 1 Barb. 286; Dyckman v. Mayor of New York, 1 Selden, 439; State v. Jersey City, 1 Dutcher, 310; Bonaparte v. Camden and Amboy R. R. Co., 1 Baldwin C. C. 229; Harbeck v. Toledo, 11 Ohio St. 219, 222.
    The doctrine that corporations can not avail themselves of the benefits of a contract and repudiate its obligations, does not apply to municipal corporations. McSpedon v. New York, 7 Bosw. 601; Cuyler v. Rochester, 12 Wend. 168.
    At any rate, in order that any inference should be drawn from the corporation accepting the benefits, they must be of a nature that can be rejected. Improvements on real estate are not of this nature. Zottman v. San Francisco, 20 Cal. 96.
    II. The legislative department of a municipal corporation can not delegate to another body the exercise of the discretion vested in it by the legislature, and any contract made under such an attempt to delegate its discretion is void. Cooley’s Const. Lim. 204; Thompson v. Schermerhorn, 6 N. Y. 92; Smith v. Morse, 2 Cal. 524; Clark v. Washington, 12 Wheat. 54; Hydes & Goose v. Joyes, 4 Bush, (Ky.) 464; Schofield v. Lansing, 17 Mich. 437; Oakland v. Carpentier, 13 Cal. 540.
    The proceedings of the council can not be sustained under section 2 of the act of 1866 (63 Ohio L. 145); and they did not conform to the act of 1864. 61 Ohio L. 25.
    Error in a charge which the record shows could not have prejudiced the party complaining, is no ground for reversal. Cricket v. The State, 18 Ohio St. 9-24.
    
      Warrington, Peck, and Cramer, on same side, cited:
    In support of Mr. Walker’s first proposition: Thomas v. The City of Richmond, 12 Wall. 356; Cleveland v. State Bank, 
      16 Ohio St. 269; Smith v. Williamsburg, 24 Barb. 431; Ellis v. The Mayor, 1 Daly, 102; Goodrich v. Detroit, 12 Mich. 286; Clark v. Des Moines, 19 Iowa, 199; Baltimore v. Kirkley, 29 Md. 86. And as to the second proposition: Steinbeck v. Liberty Township, 22 Ohio St. 144; St. Louis v. Clemens, 43 Mo. 395; Mayor, etc. v. Reynolds, 20 Md. 14; Small v. Danville, 51 Maine, 359; D’Arcy v. Railway Co., 2 Exch. L. R. S. 158.
   Day, J.

It is proper to remark, that this suit was not brought to recover for anything done under the contract; for everything of that character was satisfactorily adjusted between the parties. It is merely an action to recover damages for the breach of an executory contract, on the-part of the defendant, in discontinuing the construction of “ house connections ” of the sewers provided for in the contract.

It is claimed in behalf of the defendant that the action can not be sustained, for the reason that this part of the contract is of no validity. ' Undeniably this is true, unless, the defendant, being a municipal corporation, was authorized by the statute to make the part of the contract in question. It is claimed that the authority is found in the-act. of March 14, 1864 (S. & S. 847), and in the second section of the act of April 5, 1866. S. & S. 857.

The first-named act relates to the sewerage of cities of the first class, containing a population exceeding eighty thousand inhabitants, and makes it. the duty of the board of city improvements, whenever the city council deems it necessary to provide a system of sewerage for the city, or any of its parts, to devise “ a plan of sewerage and drainage” of the city, or such parts thereof, as may be designated by the council, which plan is to be formed with a view of dividing the city into districts, which are “ to consist of one- or more main or principal sewers, with the necessary branches and connections.” After the adoption of the-plan or plans by the board of city improvements, the board is to designate the districts required to be improved, and have “ plans and specifications prepared,” for the construction of such sewers, showing, among other things, their “various branches and connections;” and, when this is done, the board is to give ten days’ notice in a newspaper of general circulation in the city, stating that “ such plans ” have been prepared and filed for the inspection of parties interested, who may be heard, and amendments to the plan may be made, and when corrected, the plan is to be filed in the office of the city engineer, “ whereupon the plan or plans for such district or districts, or part thereof, therein set forth and adopted, shall be considered the permanent, plan for the sewerage and drainage for such district or districts, or part thereof, so designated.” When all this is done, and not till then, the city council is empowered “to-provide, by ordinance, to require the board of city improvements to cause to be constructed such sewer or sewers specified in said plan, as shall be designated by said city council and specified in such plan;” and, to defray the expense thereof, the council is authorized to assess a charge on the lots, by or under which the sewers pass, not exceeding two dollars a front foot, and the excess of the expense is to be paid out of the general fund of the city.

It may well be doubted, whether power is conferred by this act to construct “ house connections,” as a part of the system of sewerage authorized by it; for it would practically cast the entire cost of such connections upon the general fund of the city, since the expense of the main sewers, it appears, exceeds the amount authorized to be assessed.on the property abutting the streets where they are constructed. It is against the evident scheme and policy of the act, to cast the burden of the construction of such connections, made for private benefit merely, upon the public, since the front-foot charge on the adjacent lots is to be equal in amount, though some lots may have house connections and others not; moreover, provision is made in the unrepealed portion of the act, to which that of March 14, 1864, is an amendment (S. & S. 849), for the owners of property abutting on streets containing sewers, 'to tap and use them for draining their own premises, at their, own expense. This policy is further evinced, if not rendered conclusive, by subsequent acts expressly authorizing the city to construct “house connections,” and charge the expense exclusively upon the property benefited. S. & S. 858; Ib. 862.

But, however, that may be, if the act of March 14, 3864, does confer power to build house connections, it is clear that they must be a part of the “plan of sewerage” provided for by the act, and are only authorized upon the conditions applicable to the whole plan.

Now, these house connections were, not designated in, or indicated on, the plan approved by the board of city improvements; nor were the specifications, upon which the contract was made, filed as required until after the ordinance, directing the work to be done, was passed by the city council, nor were they submitted to the inspection of the parties interested before they were approved by the board. It is clear, therefore, that, if the act of 1864 conferred the power claimed, the conditions precedent to its exercise were not performed as required by the act. The contract in relation to house connections can not, therefore, be sustained by virtue of the act of March 14, 1864.

But it is claimed to be authorized by the second section of the act of April 5, 1866, before referred to. That section, I think, for reasons not necessary to be stated, stands by itself as much as it would if it were an independent act. It authorizes the construction of house connections from the street sewer to the outer line of the curbstone, the expense of which is to be assessed upon the lot or lots benefited thereby. But this authority can be exercised by the city council only upon the recommendation of the board of city improvements, and only in streets about to be paved or otherwise permanently improved. It is doubtful if either of these requisite antecedents of the power existed. There is, indeed, no pretense that the construction of these house connections had any relation to the improvement of the streets, which is the very foundation of the power conferred by the section, and, for the same reason relates to such connections for gas or water, as well as to those of sewers. This position is strengthened in view of the act of January 26, 1867 (S. & S. 862), conferring like power with this section, but without limiting it to streets about to be improved; though it can not be exercised “otherwise” than-by ordinance,-which was attempted to be done in this case-under the second section of the act of April 5, 1866.

The other requisite to the power conferred by that section rests on a foundation too shadowy to be relied on as an affirmative ground of power; for it consists only of a-resolution submitted to the city council by the board of city improvements, passed March 1, 1867, by which it appears that the board only recommended a contract for work required by an ordinance, passed January 4, 1867, which was before the specifications for house connections were filed, and before, for aught that appears, such connections were contemplated for the district to which the contract related.: for the ordinance of September 26, 1866, only authorized house connections in streets that are, or were to be permanently improved, and no streets were designated otherwise in the ordinance; nor does it appear to have been passed upon the recommendation of the board of city improvements, without which it was of no legal effect.

This view of the case renders it unnecessary to refer more particularly to the rulings of the court below. The-part of the contract, on which the action was based, was - made without authority of law, and therefore was of no-validity. The plaintiff had no cause of action thereon; he was not then prejudiced by any ruling of the court. The.judgment must therefore be affirmed.  