
    The State ex rel. the City of Columbus v. John G. Mitchell et al., Commissioners.
    1. The act of March 30, 1875, entitled “ an act to provide for the improvement of streets and avenues in certain cities of the second class ” (72 Ohio L. 153), is a special act conferring corporate power on the city of Columbus; and is, therefore, in conflict with section 1, article 13, of the constitution. Welker v. Potter (18 Ohio St. 85), explained.
    2. Notwithstanding the unconstitutionality of the act, where the .abutting lot owners have caused a street to be improved under the act, and bonds of the city to be negotiated to pay for the improvement, all who have participated in causing the improvement to be made, are estopped from denying the validity of an assessment made in accordance with the act, to pay such bonds.
    S. Under the provisions of the act, the intersecting streets and alleys are not subject to be assessed to pay for the improvement.
    This is a proceeding in mandamus against John G. Mitchell, Fred. Michel, John R. Hughes, Henry M. Neil, and Granville A. Frambes, commissioners of north High street improvement, in the city of Columbus.
    The owners of two-thirds of the feet front of the property abutting upon the part of High street which lies between, the south side of Naghten street and the north corporation, line of the city, having petitioned the city council for the> privileges of the act entitled “ an act to provide for the-improvement of streets and avenues in certain cities of the-second class,” passed March 30, 1875, in the improvement of said part of High street, the city council, on the 21st of June, 1875, by ordinance authorized such improvement,, and directed the grading, paving, and curbing that part of High street, under the provisions of said act, and authorized the election of commissioners.
    Commissioners were accordingly elected, and the inrprovement was made in pursuance of the provisions of the-act. The amount of the contract price for the work, and: the incidental expenses attending the same, was $226j-253.96. For this amount bonds of the city were delivered to the commissioners, from time to time, as the work progressed, in pursuance of the act. These bonds were negotiated by the commissioners, and the proceeds expended in payment of the cost and expenses of the improvement.
    The commissioners have caused a plat of said part of High street so improved to be prepared, showing the separate lots of grounds fronting or abutting thereon, and the names of the several owners, but have not assessed the entire cost of the improvement on said lots¡ The- commissioners have estimated the cost of so much, of the*improvement as is included and contained in the crossings or intersections of said part of High street with other streets, alleys, and highways, to amount to $25,828.38, and claim that the intersecting streets, alleys, and highways, should be considered as abutting property to be assessed, and claim that said last mentioned sum should be paid through a tax levied upon the general duplicate of all the real and personal property subject to taxation within the corporation; and refuse to assess- the entire cost of the improvement upon the separate lot's and pieces of ground fronting or abutting upon said improvement, exclusive of the intersecting streets, alleys,' and highways.
    The object of the writ is to require the commissioners to-assess the entire cost of said High street improvement equally per foot front upon the separate lots and pieces of' ground' fronting or abutting upon the improvement, without assessing or charging- any part of said cost upon the streets, alleys, ■ or highways which intersect or cross said part of High street.
    Two of the commissioners, John G. Mitchell and Fred. Michel, in their answer to the alternative writ,-admit the correctness of the claim of the relator, and that the cost of the improvement ought to be assessed as directed in -the alternative writ.
    The rémaining commissioners, Hughes, Neil, and Frambes, in their answer set up, in substance, that the cost of the improvement ought to be assessed upon the intersecting streets, alleys, and highways, in common with the other property bounding and abutting on the improvement; and that the commissioners, in accordance with the previsions •of the statute, have made such assessment pro rata upon all the abutting lots and grounds, including the intersecting streets, alleys, and highways.
    They also submit that if the court be of opinion that, said commissioners should make a new assessment, then they urge upon the court to consider whether said act of March 30, 1875, aforesaid, under the constitution of this state, be of any validity whatever; whether said act does confer the power and impose the .duty of making the assessment in said act mentioned upon the commissioners, therein provided for; and if such .be the intent of the act, in the opinion of the court, then whether it is competent for the general assembly of the State of Ohio to confer such power and impose such duty upon such commissioners.
    The answer sets up other matters by way of defense, which, in the view taken by the court of the case, it is not material here to set out.
    
      E. P. Sharp, city solicitor, and "Wright ‡ Evans, for the relatrix:
    The act in question, as we view it, is a distinct, independent statute, having no relation to or dependence whatever upon the provision of the municipal code for its execution, and we deny that the city is liable for the expense of the crossings and intersections.
    Crossings and intersections, eo nomine, or in any other way, are not.mentioned in the act. They constitute a part of the improvement, just as much as any other expenditure connected with it, and unless a liability to pay for them attaches to the city by virtue of some express provision of law, the expense of their construction, we think, must be included by the commissioners in the aggregate cost and expense of the improvement as properly assessable to the abutting property,.other, than intersecting streets, alleys, and highways of a public character.
    It is said, however, that this saving provision is to be found in section 22, which provides that—
    
      “ The term, owners, in said act, shall be so construed as to include all corporations, public, private, aad municipal.”
    
    The argument is that streets are abutting property, and as the city owns the streets, it'is therefore liable, according to feet frontage, for its proportion of the costs and expenses of the improvement.
    . Where a municipal corporation owns beneficial interests in real property, other than streets, abutting on an improvement made under this statute, the position is probably correct. Rut we deny that a city owns a street in the sense in which the term owner is used in the act. 2 S. & C. 1482, sec. 6, as amended; 72 Ohio L. 25 ; Municipal Code, sec. 440 ; 12 Iowa, 246 ; 24 Iowa, 470 ; People v. Kerr, 27 N. Y. 211; 69 111. 318, 323 ; 11 111. 154; 13 111. 50 ; 21 HI. 80.
    Erom the foregoing authorities, we thing' the following conclusions are tenable :
    1. The streets of a city are public highways, although they are subject to greater servitudes than the ordinary highway. Angelí on Highways, sec. 24; 16 Penn. St. 79.
    2. After a street has been dedicated to public use under section 6 of the act of March 3, 1831, or the amended section of the act of February 4,1875, and accepted by the city under section 440 of the municipal code, it is not in the power of the city to abandon, alien, or dispose of it. Cooley’s Const. Him. 207, 208.
    3. Streets can not be sold upon executions at law or proceedings in chancery.
    4. Assessments upon abutting property for street or any other improvement operate in rem. They create no personal liability against the owner, unless by express provision of the statute. In this act there is not a word looking to a personal charge upon the corporation, or the owner of abutting property. The property itself must respond, and is alone liable. 73 Ohio L. 163, 218; 74 Ohio L. 69; 8 Ohio St. 243; 26 Ohio St. 243, 315, 644.
    And this brings us to the main question, that is to say : Can you tax a public street or highway for any purpose ? Can you assess them for a public improvement ? Can you acquire a lien for such purposes, and exhaust them by any of the remedies of the la.w, so as to divest the public of the benefit of the easement ? If not, then they are not within the purview of this act.
    This leads us to conclude that the public streets of a city and the highways of a county are not taxable under the constitution. The exemption inheres in the thing itself. Wilson v. The Commissioners, 7 "Watts & Sarg. 199 ; Williams v. The Controllers, 6 Harris," 267; Shaffer v. Caldwala
      der, 12 Casey, 126; Conard v. Atlantic Ins. Co., 1 Peters, 443; Leedom v. Plymouth B. B. Co., 5 Watts & S. 266; 42 Penn. St. 9; 18 C. B. 867; Hilliard on Taxation, 76, 81; 18 Ohio St. 226 ; Paul v. Carver, 24 Penn. St. 210 ; 8 Cushing, 565; 21 Ohio St. 248; 2 Smith’s Leading Cases, 216.
    If, then, we are light in' our conclusions, it follows as a necessary consequence that the term ownership relates to and embraces only such beneficial interests in property as may be the subject of alienation or disposal, to which a specific lien may attach, and which may be exhausted by the remedies of the law for the satisfaction of the incumbrance, and we think that the city of Columbus does not possess any such interest in its streets as to constitute it an abutting property-owner, liable to assessment for these' crossings and intersections.
    The law of estoppel applies. Corry v. Gaynor, 22 Ohio St. 594 ; 44 N. Y. 415 ; 30 Ind. 142 ; Herman on Estoppel, sec. 554; 21 Iowa, 356 ; Bigelow on Estoppel, 600 ; 18 111. 276; Hilliard on Taxation,-384.
    
      Harrison, Olds § Marsh, also for the relatrix:
    The act of March 30, 1875, entitled “an act to provide for the improvement of streets and avenues in certain cities of the second class ” (72 Ohio L. 153), under which the improvement described in the alternative writ devises and prescribes a complete scheme for street improvement. It does not purport, either in its title or body, to amend any of the sections of the act known as “ the municipal code,” It is separate from and independent of that code.
    We construe the provisions of the act to mean that the entire cost of the improvement shall be assessed, upon the lots of land abutting upon the part or section of the street so improved; and this for two reasons:
    
      Hirst. Because the statute expressly says so.
    
    
      Second. Because there is sound legislative policy in requiring the corporation at large to pay the cost of intersections, and one-fiftieth part of the other expenses of improvements which it controls and superintends, and the kind and description- of which it determines, and the contracts for which it makes. It is a check on unnecessary or extravagant expenditures.
    But when the city, after granting authority to make an improvement, on petition of two-thirds of the feet front abutting on the street, has no control over the character or cost of the improvement, bnt commits the whole matter to the discretion of the agents of the property-owners by them chosen, as a special privilege, it is reasonable that the municipality at large should not pay the cost of intersections and one-fiftieth part of the entire expense of the improvement.
    The improvement is called for and its character determined by the lot-owners through their agents, and should be paid for by them.
    We submit that it is plain that the unambiguous * and pointed terms of the act, and its manifest policy, require the entire cost of improvements made under it to be assessed upon the abutting lots. ,
    Nor can it be maintained that a street or alley is a “lot” owned by the city. State v. Cincinnati Gr. C. Co., 18 Ohio St. 291; Bingham v. Boam, 9 Ohio, 165-168; Morris V. Bowers, Wright, 749 ; Foe v. Jackson, 7 Mich. 432 ; 1 Bouvier’s Inst. 174, see.,441; 49 Barb. 457; sections 576, 590 of the Municipal Code; Creighton v. Scott, 14 Ohio St. 438.
    The questions suggested by the commissioners can only be raised, if at all, by the lot-owners. And they have, without taking a single step to arrest the proceedings, permitted their agents, the commissioners, to make a contract for the improvement, and obtain from the city her bonds for upwards of a quarter of a million of dollars, and apply the proceeds in defraying the cost-and expenses of an improvement for their benefit.
    If, however, any of the other lot-owners should hereafter contest the validity of the proceedings, upon any grounds, it will then be time enough to inquire and determine whether such grounds are sufficient to relieve them from liability for any part of the cost of the improvement.
    
      The objections suggested by a majority of the improvement commissioners can not, therefore, we submit, bo entertained in this proceeding, for the reason that they have .estopped themselves from making them, and also because they .are premature, and likewise because this is not the appropriate proceeding for the hearing and determination of them. If any persons can make them, the commissioners can not. They can only be made by-such abutting 'owners as shall be unwilling to pay their shares of the- assessment. A peremptory writ in this proceeding will not conclude the rights or liabilities of the lot-owners, so far as their rights may depend upon the validity of the statute or the proceedings sought to be drawn in question herein. -We repeat, the only question in this case is whether the respondents shall be required to make a proper assessment. That question must- necessarily be determined before the completion and delivery of the assessment to the auditor of the county, and by him placed on the duplicate • and if made otherwise than' by assessing the entire cost of the improvement upon the abutting lots, the fund will be insufficient to pay the bonds, with the accruing interest.
    In support of the views above expressed, we cite Farrell v. King, 41 Conn. 448; Filis v. Comm’rs, 2 Gray, 370; Roberts v. Rives, 27 111. 242; People v. Matteson, 17 111. 167; ..People v. Hilliard, 29 111. 419; Brown v. O’Brien, 2 Ind. 423 ; Rex .v. Harris, 3 Burrows, 1421.
    Again, we maintain that all, and it is certain that a large majority, of the abutting owners are estopped from objecting to the payment of thé assessment. This is especially so in the ease of the commissioners, the petitioners, and the abutting lot-owners, who voted at the election of the commissioners.' Their acts preclude them from contesting its validity. City of Burlington v. Gilbert, 31 Iowa, 356 ; Mayor, etc., of Pittsburgh v. Scott, 1 Penn. St. 309.
    The commissioners were the mere agents of the lot-owners, and, as in other cases between principal and agent, if the lot-owners would disaffirm and avoid the acts of the commissioners, they must do so promptly. People v. Coun
      
      cil of Utica, 45 Howard’s Pr. Rep.; 65 Barb. 9; Story v. Furman, 25 N. T. 280; Palmer v. Stump, 29 Ind. 829; Mel-, lenkamp v. City of Lafayette, 80 Ind. 192 ; City of Evansville v. Pfisterer, 34 Ind. 36; City of Lafayette v. Fowler, 34 Ind. 140; Weber v. City of San Francisco, 1 Cal. 455; Mots v. City of Detroit, 18 Mich. 496;, Quinlan v. Myers, 29 Ohio St. 500; State v. Van Horn, 7 Ohio St. 327; State v. Trustees, etc., 8 Ohio St. 394; State v. Shoemaker, 14 Ohio St. 569; Kellogg v. Eby, 15 Ohio St. 64; Wright v. Thomas, 26 Ohio St. 346 ; Corry v. Gaynor, 22 Ohio St. 584 ; Sessions v. Crunkelton, 20 Ohio St. 349. The cases of Welker v. Potter, 18 Ohio St. 85, and Stephan v. Daniels, 27 Ohio St. 527 are distinguished from this.
    Even if the decision of the city council that the petition “ for the privileges of the act was signed by the owners of two-thirds of the abutting lots,” would not have been conclusive in a direct proceeding to inquire into the facts before the rights and interests of third persons had attached, yet after the authority has been executed, the election for commissioners held, the contract for the construction of the improvement entered into, the bonds issued and in the hands.of innocent holders, and the improvement completed, it is too late, even in a direct proceeding, for either the city or the owners of abutting lots to call it in question. Much less can it be called in question to the prejudice of bona fide holders of the bonds in this collateral way. Commissioners of Knox County v. Aspinwall, 21 Howard, 159 ; Bissell v. City of Jeffersonville, 14 Howard, 298; Van Hostrup v. Madison City, 1 Wallace, 291, 297; Mercer County y. Hacked, 1 Wallace, 93 ; Supervisors v. Schenck, 5 Wallace, 783; Pendleton County v. Amy, 13 Wallace, 305; Lynde v. The County, 16 Wallace, 13; Marsey v. Township of Oswego, 2 Otto 641; Humboldt Township v. Long, 2 Otto 645.
    The proper and indeed the only remedy of the relatrix is by the writ of mandamus. State ex rel. v. Harris, 17 Ohio St. 608; Cass Township v. Dillon, 16 Ohio St. 38; Beaver § Boutt v. Trustees Blind Asylum, 19 Ohio St. 97; State ex rel. v. Commissioners Franklin County, 20 Ohio St. 421; Case v. Wresler, 4 Ohio St. 561; Boren $ Cuches v. Commissioners of Darhe County, 21 Ohio St. 311; Tod, relator, v. Fairfield Common Fleas, 15 Ohio St. 377.
    
      Lorenzo English and J. Wm. Baldwin, for the respondents:
    Proceedings in mandamus can not be availed of for the correction of the errors of judgment of inferior tribunals and boards, nor for the correction of errors in the executed proceedings of such tribunals and boards, resulting in judgments and conclusions. Section 569 of civil code.
    This writ may require the inferior tribunal to exercise its judgment, but it can not control such judgment.
    When the duty is performed, or the judgment pronounced, this writ is without jurisdiction, and other remedies which our practice amply provides, must be resorted to for the correction of errors and mistakes therein. Benedict v. Howell, 10 Vroom, 000; State v. Nash, 23 Ohio St. 574; Shelby v. Hoffman, 7 Ohio St. 450; 19 Ohio St. 348; Dillon on Municipal Corporations (ed. 1872), 626.
    The averment is made in the answer that the owners of two-thirds of the frontage on this -improvement did not petition the council of the city of Columbus for the privileges of said act of March 30, 1875, and for the purposes of the present hearing, such averment is conceded to be true. The jurisdiction of the council to pass the ordinance of June 21,1875, depends on the fact that the council was so petitioned. The council was authorized to pass this ordinance only upon the petition of the owners of two-thirds of the frontage of the abutting property. Such petition was therefore a necessary pre-requisite to the lawful exercise of the power. Corry v. Caynor, 22 Ohio St. .593; Dillon on Municipal Corporations, sec. 639.
    These respondents are not estopped from answering the invalidity of this ordinance, if the validity of the act which they are required to do depends upon, or is materially affected by, the invalidity of such ordinance.
    At the time of its passage, the respondents, as a board of commission for the improvement of this street, had no official or legal existence, and were in no manner instrumental in its passage.
    It was not part of their official duty to investigate the validity of the ordinance, but its invalidity coming to their knowledge at any time, if the act they are expected or required to do is thereby rendered illegal, it would be their official duty to refuse to do such act, and in a proceeding to compel them to do it, to answer the fact and let the responsibility rest with the negligent party.
    These respondents may not be required to do an act, which, if done, would be illegal and without validity, and in this proceeding they may require the relator, on her part, to show the performance of every precedent condition, neces-’ sary legally to uphold and support the act of which, by compulsion of law, she asks the performance at their hands. And this view of the case is not met by any consideration of the rights of the holders of the bonds, which, it is said, have been issued and negotiated in the course of the proceedings to improve this street.
    But it is claimed by the relator that a correct construction of this act removes the whole subject of improvement of a certain street, in a city of the second class, from the authority and control of such city, otherwise restricted in certain particulars, upon the election of two-thirds in number of the feet front owners of property abutting thereon, and places the same in the hands and discretion of certain commissioners, for whose election the city council is to provide, and thenceforth all former and other laws are suspended or repealed, so far as this proceeding is concerned, and the improvement made, and bonds of the corporation issued, at the order of these commissioners, and the assessment imposed by them, irrespective of any limit or restraint. In this view, it ceases to be a general law of the land, and only becomes such at the inspiration of the petition of the two-thirds of the feet front of the property owners, which creative power, at the same time, repeals all other laws upon the same subject-matter, when such repeal is not even remotely suggested in the act itself.
    We deny that the legislature ever intended to or did pass such law. If all legislative power is vested in it, such investiture is in it alone, and can not be delegated in this mode, either for enactment of new laws or repeal of old ones.
    Whatever may be the equitable relations to which the petitioners voluntarily subject themselves, as to liability to pay for such improvement, the act is unenforceable against the non-petitioners, because it is not a law of the land. Such laws must be enacted by the legislature; this law is enacted by two-thirds of the feet front property owners.
    This is in violation of our own constitution and of all constitutional law.
    Now, “if there is not power to refer the adoption of a general law to the people of a state, any more than there is to refer it to any other authority,” as is stated by Cooley in Const. Dim. 119, and that “the prevailing doctrine in the courts is that the function of legislation can not be exercised by the people even to the extent of accepting or rejecting a law framed for their consideration,” then much more can not two-thirds of the property owners of the feet front of a single street accept or reject a law that affects and controls the interests and property of the whole city. If its credit is to be loaned, and its bonds issued for a large amount upon interest, to be paid by it for seven years, the whole city has a voice in the matter, as well as the parties beneficially interested. That all such legislation is void, and that laws can not be legally enacted to take effect upon the act of a community or individual, see Rice v. Foster, 4 Han. 479; Rarlcer v. Commonwealth, 6 Penn. St. 507; Gee-buck v. State, 5 Iowa, 495; Maize v. State, 4 Ind. 342.
    It is argued by the relator, however, that these respondents can not raise in this proceeding any question as to that fact, but are estopped by their own prior acts; that, having assumed office thereunder, and discharged all the duties thereof, even to making the assessment, which is avowed to be an improper one, they can not now question the jurisdictional fact, and show to the court that they, in fact, have no authority to make any assessment at all. That is, when it is manifest that all of the prior acts of an officer are unauthorized, he may be compelled to perform one more such act, because he has done wrong so far; and it is no justification to his refusal to do evil further, because he has discovered his former errors.
    We do not understand such to be the office of this writ. The end and aim of it is to have something done by respondent, which the relator has a right to have done, and which it is right for the respondent to do. The writ is not used to enforce wrong. College v. La Rue, 22 Ohio St. 469; Ohio v. Zealman, 22 Ohio St. 546.
    The question at issue herein is not one of estoppel or equitable relations, but of pure legal right, and even, though in an action to enforce against the individual property of these respondents, an assessment made under this law, their actions might be viewed in the light of equitable relations, etc.; no' such view can be taken here. Their official action alone is here sought to be enforced.
    For the same reason there is no force in the suggestion that these questions can only be raised, if at all, by the lot-owners. They can be raised, by any of the parties interested, in any stage of the proceedings, and this court would not compel respondents to do that which, if done, it would not enforce because of its illegality; for we take it to be clear under the authorities above cited that this question is jurisdictional, and if such petition has never been filed, no assessment can ever be made of the cost of this improvement that will be enforced, and, if not enforcible, can respondents be compelled to make it? Are not the .proceedings void in law, and the commissioners legally without existence ? A peremptory writ in this proceeding, it is «aid, will not conclude the rights or liabilities of the lot-owners. True, we grant this, but such peremptory writ will not be a substitute for said petition, and life must be given to a body before it can move even in obedience to such a “ prerogative ” writ.
    This doctrine of estoppel has no application to the matters now being heard herein. If the rsspondents are “ agents ” of the property-holders, are they not also the official “ agents ” of the corporation, in making the contracts in its name, in causing its bonds to be issued and negotiated, and in making the assessments ? Must they not be so considered, if their acts are of any validity whatever to bind the corporation ?
    Nor does the fact- that some of these property-owners petitioned the council to pass this ordinance estop the respondents to assert now such invalidity. They are acting officially ; if acting so for any, for all the property-owners, as well for those who did not petition as for those who did.
    The point is not that some of the property-owners petitioned, but is, did the requisite number petition to give the counsel jurisdiction ?
    
      L. J. Critchfield, also for respondents.
   White, C. J.

This ease arises under the act of May 30, 1875, entitled “an act to provide for the improvement of streets and avenues in certain cities of the second class.” 72 Ohio L. 153.

The controversy, originated between the city and the commissioners as to what constituted the abutting property subject to assessment under the act to pay for the improvement.

On the part of the city, it was contended that in levying the assessment upon the property abutting on the improvement, the intersecting streets and alleys were to be excluded» while, on the other hand, a majority of the commissioners claimed that such streets and alleys were to be charged with the assessment in common with the abutting lots.

The act provides that the cost of the improvement shall “ be assessed equally per foot front upon the property fronting or abutting upon said improvement.” The commissioners are required to cause a plat of the avenue or street to be prepared, “ showing the separate lots of ground and the names of the several owners;” and they are also required to make “ a list or schedule of the names of all said owners and the amount assessed against each lot or piece of ground,” and the assessment is to be placed upon the duplicate of the county, and collected like other taxes.

Section 19 of the act is as follows : “ Said assessments, with interest accruing thereon, shall be a lien upon the property abutting upon said street or avenue from the commencement of the work, and shall remain a lien until fully paid; and they shall have precedence of all other liens, and shall not be divested by any judicial sale; provided, that said lien shall be limited to the lots bounding or abutting on said street or avenue, and for not exceeding in depth from said avenue 187& feet.”

It is quite apparent, from these provisions, that no property is subject to be assessed which is not also subject to be sold to pay the assessment. This fact is of itself sufficient to negative the claim of the commissioners that the public streets are subject to assessment.

The provisions of the municipal code on which counsel rely, do not apply to improvements under the act in question. ■ The act is a special one, and by its terms is only applicable where the cost of the improvement exceeds one hundred thousand dollars. The scheme provided for by the act is intended to be complete within itself.

■It is likewise claimed, on behalf of the commissioners, that, inasmuch as they have assessed the cost of the improvement on the abutting property, including the intersecting streets and alleys, that they can not be compelled by mandamus to make another assessment; that in making the assessment they exercised a discretionary power, and that their action is final.

There is no foundation for this claim. The selection of the property to be assessed is not submitted to the discretion of the commissioners. The statute prescribes the property upon which the assessment is to be levied, and, in acting under the statute, the commissioners are bound to conform to its requirements.

But if, in assessing the cost of the improvement, the intersecting streets and alleys are to be excluded, it is then submitted, on behalf of the commissioners, whether the act authorizing the improvement is not in conflict with the constitution of the state.

¥e shall not undertake to examine the various-grounds on which the act is impugned. •

That the act is in conflict with section 1, article 13 of the constitution, it seems to us is plain.

The section -is as follows: “ The general assembly shall pass no special act conferring corporate powers.”

That no distinction can be made under this section between private and municipal corporations has already been decided by this court in two reported cases, and that the inhibition extends as well to the conferring of additional powers on an existing corporation as-to the creation of a new one. The State, ex rel. v. The City of Cincinnati, 20 Ohio St. 18; 23 Ohio St. 445. The general assembly is expressly disabled from conferring corporate power by special act. The mandate is that no special act shall be passed which has that effect.

It is true the act in question is in the form, in a sense, of a general law. But as was said in the ease of The State ex rel. v. The Judges, 21 Ohio St. 11, the constitutionality of an act is to be determined by its operation, and not by the mere form it may be made to assume. The act is entitled “ An act to provide for the improvement of streets and avenues in certain cities of the second class.” And by the first section it is made applicable to cities of the ^second class having a population of over thirty-one thousand at the last federal census.” Columbus is the only city in the state having the population named at the last federal census, and the act, therefore, applies alone to that city, and never can apply to any other. The effect of the act would have been precisely the same if the city had been designated by name instead of by the circumlocution employed.

That the act undertakes to confer corporate power upon the city can not be doubted; for while the property owners are required to be promoters of the improvement, the authority to- direct it to be made is vested in the city council, and the bonds of the city are to be used to raise money to pay for it.

The constitution, as has been repeatedly held, does not inhibit appropriate local or special legislation. Crickett v. The State, 18 Ohio St. 9; The State ex rel. v. The Judges, 21 Ohio St. 1; The State ex rel. v. Covington et al., 29 Ohio St. 102. The constitutional inhibition is against granting corporate power by such legislation.

The question under consideration was not made or considered in Welker v. Potter, 18 Ohio St. 85. That case was a suit to collect an assessment made under the act of April 5, 1866 (68 Ohio L. 133). The court below decided the assessment to be invalid. The case came before this court on an application for leave to file a petition in error, and was disposed of by a per curiam.

The assessment was sought to be sustained under the act of February 21, 1866 (63 Ohio L. 22), on the ground that the subsequent act of April 5th, was unconstitutional.

The only constitutional objection suggested against the act was that it was in conflict with section 26, article 2 of the constitution, which requires all laws of a general nature to have a uniform operation throughout the state. The objection was overruled, and the exact point decided is found in the last proposition of the syllabus.

The act in that case, like the one now before us, was clearly of a local or special nature, and was not subject to' the constitutional objection made against it.

The fact that the act conferred corporate power, and was thus in conflict with section 1, article 13, was not suggested in argument or considered by the court. That case is, therefore, not to be considered as authority on any question involving the grant of corporate power.

The remaining question is, whether the uneonstitutionality of the act constitutes an answer to the alternative writ.

Under the. circumstances of the case, we think it does not.

The making of the improvement originated with the owners of the abutting property and was carried forward to completion under their authority.

The first section of the act provides, that the owners of property abutting on the street are authorized to elect five citizens of the city, who are likewise to be owners of abutting property, whose duty it is declared to be to control and superintend the grading, curbing and paving of the-street, and who are to serve without salary.

The third section provides, that each owner of property shall be entitled to one vote for every foot front of property abutting on the street. It also prescribes the mode in-which the election is to be conducted, and requires a list of the persons voting to be preserved. Section 24 provides, that the city council shall not have the right to authorize any improvement under the act, unless the owners of two-thirds of the feet front of the property abutting on the street to be improved shall petition the city council for the privileges of the act.

In the ordinance passed by the city council authorizing the improvement to be made, it is expressly found that the owners of the requisite two-thirds of the feet front of the abutting property had petitioned for the privileges of the act.

It is true that the majority of the commissioners in their answer say “ that as they are now advised and believe they deny that the owners of two-thirds ” of the frontage petitioned for the privileges of the act. But this denial, as we understand it, is founded on the assumption that the intersecting streets and alleys are to be considered as abutting property. As this assumption is founded upon an erroneous view of the statute, the denial goes for nothing.

"We deem it unnecessary to undertake- to. recite all the steps that have been taken in making the improvement. It is sufficient to say that the defendants and the other abutting lot-owners who have co-operated with them, have caused the improvement to be completed. In doing the •work alarge indebtedness has been incurred,'for which the bonds of the city have been issued and negotiated in accordance with the provisions of the act. All this has been done with full knowledge that the only provision made for paying such indebtedness was by assessment on the abutting property.

Under, these circumstances, we are of opinion that the defendants and those who have participated with them in causing the improvement to be made, are estopped from denying the validity of the assessment. Having voluntarily availed themselves of the provisions of the act, to create an indebtedness for the benefit of their property, good faith requires that-they .should be thus estopped.

The principles of estoppel apply where the proceedings are questioned on the ground of the unconstitutionality of the statute under which they are had, as well as where they are sought to be impeached on other grounds. Ferguson et al. v. Landrum et al., 1 Bush, 548; Ferguson v. Landrum, 5 Bush, 230.

Hence, notwithstanding the unconstitutionality of the act, the rights of third parties have so intervened that it is the duty of the commissioners to complete the apportionment of the assessment in accordance with the terms of the act.

The action.of the commissioners in levying the assessment will not .conclude the lot-owners from contesting their liability. If there are any who are not estopped by their conduct, they can make their defense when the assessment is sought to be enforced against them.

Peremptory writ aioarded.

This case was decided before- Judge "Welch retired from the bench. .  