
    City of Cincinnati v. Anchor White Lead Co. City of Cincinnati v. Wewell. City of Cincinnati v. Egleston.
    
      Assessment — Sewer— Use of sheeting without separate bid.
    
    Error to the Distrrict Court of Hamilton county.
    These were actions brought by the city of Cincinnati for the use of Erank Kirschner and A. Ashman, contractors, .upon assessments made for the construction of a sewer in that city.
    
      
      Wulsin $ Worthington, for plaintiff in error.
    
      James U. Perkins, for defendants in error.
   By the Court.

The only finding of the trial court is “ that by reason of the fact that the cost of the board sheeting was included in the amount assessed upon the property of the defendants, without any proposal or bid having been advertised or received for the said sheeting, said assessment upon the property of each of the defendants herein is invalid and void.”

There was no judicial determination by that court of any other question or upon any other fact. Upon all other questions this court is appealed to as a court of first resort, not as a reviewing court. Upon no other issue is there any judgment before us for review.

Erom what is termed an “ agreed statement of facts,” it appears that all sheeting used to support the sides of the trenches which should be left in by the direction of the engineer, should be paid for at the rate of not more than one dollar per lineal foot of sewer It was impossible to anticipate what amount of such sheeting it would be necessary to leave in. It is shown only that it was known to the officers and agents of the city that “ some such sheeting” would be necessary to be left in. Intelligent estimates and bids were impossible. It further appears that the sheeting which was left in “was necessary in the construction of said work.” No fraud is complained of. No complaint is made that the work of construction was not well done. The facts so agreed upon bring this question within the rule declared in Hastings v. Columbus, 42 Ohio St. 585.

It follows that there ,was error in adjudging the entire assessment to be void, for the reason that it included the cost of the board sheeting.

There is no agreed statement of the facts of the case. That which is incorporated in the bill of exceptions and termed such is in great part simply an argreement as to the evidence relative to certain facts, and from which, in connection with other evidence in the bill of exceptions, the substantive facts were to be found by tbe court. It is not found nor agreed, nor does it appear, that there was no jurisdiction to proceed with the improvement. Thejudg-’ ments of the courts below will therefore be reversed, and the cause remanded for further proceedings.  