
    Commissioners of Putnam County et al. v. Krauss et al.
    
      County ditch — Established by commissioners — Assessments upon land owners — .Grounds for injunction — Remedy when ditch not according to contract.
    
    Where under the ditch laws of this state, a ditch has been ordered and established by the county commissioners, and the construction- paid for from the county treasury, on certificates of the engineer appointed to superintend the work, the assessment made to reimburse the county for the payments mad,e from its treasury, cannot be enjoined by the land owners on the ground simply that the ditch was not constructed according to the contract and specifications,- and does not drain their lands. An action upon the bond of the engineer, or of the contractor, or of both, is the proper remedy in such case; and, if'not adequate, it is from the fault of the land owners in not having made their objections to.the engineer, or in not having caused his removal for dereliction of duty.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Putnam county.
    The action below was brought by the defendants in error, Krauss et al., against the plaintiff sin error, to restrain the collection of certain ditch assessments that had been made on their lands. The assessments were restrained in-the common pleas, .and the defendants in that court appealed to the circuit court. The case was there first heard on a demurrer to the petition as- amended in the common pleas. The demurrer was overruled, and the case then heard upon the pleadings and the evidence. The pleadings consisted of the amended petition and the answer thereto. The answer admitted the official character of the parties as averred, and then denied each and every other averment of the petition. The court found the averments of the petition to-be true; and enjoined the collection of the assessments, until such time as the commissioners should complete the ditch according to the plans and specifications. The usual exceptions were taken, and a motion for a new trial made and overruled. The evidence is not set out; and the only question presented is as to the sufficiency of the petition to warrant the relief granted. The petition is as follows:
    “The plaintiffs, P. M. Krauss, F. P. Bowman, H. Rauche, H. J. Krauss, George. Kratzer, Mary Ann Smith, Richard Catón and John Zickafoose, for their amended petition say, that the defendant, W. W. Place, is the duly elected, qualified and acting auditor of Putnam county, Ohio;*that O. ~W. Crawfis is the duly elected, qualified and acting treasurer of Putnam county, Ohio, and for their cause of action against said defendants and the Commissioners of Putnam county, Ohio, said plaintiffs say:
    ‘ ‘ That sometime during the years 1886 and 1887 the said commissioners of Putnam county ordered the construction of a certain ditch known as the Zickafoose improvement of the Kratzer ditch, appointed an engineer to sell and superintend the said construction according to law. Said work of construction was sold out pursuant to said order and the contractors therefore proceeded to construct said ditch; but plaintiffs say that said ditch was not constructed as required by the said order and by the specifications furnished by said engineer, and was left and still remains but partly constructed and entirely inadequate to carry away the water flowing into it and that it was intended to carry away; and that said ditch was left and still remains both too narrow and too shallow below the lands of said plaintiffs; that at points below said lands where said ditch is by the said order and specifications, to wit: at or about work sections 3 and 5, among others, required to be 16 feet and over wide, it is as constructed only 8 feet and 4 inches wide, and at such points said ditch is from 16 to 18 inches less than the required depth. That along- side and above said lands the water rises to the depth of 18 inches in said ditch before beginning to flow over said obstructions.
    “Said plaintiffs further say, that said commissioners levied large assessments to pay for the construction of said ditch upon the lands belonging at that time and still belonging to said plaintiffs ; that said defendant, W. W. Place, auditor as aforesaid, has placed said assessments on the duplicates of said county to be collected from said plaintiffs; said treasurer threatens to, and will unless restrained therefrom, proceed to collect the same by authority of the statute authorizing him to proceed against said lands for the collection of taxes and assessments. Said plaintiffs will, by reason of .the said defective construction and of the noncompletion of the said ditch, be compelled to pay the said assessments, but will not receive the benefits for which said assessments were levied.
    “The contractors for said work have ceased working on and have abandoned said ditch, have wrongfully received from the engineer thereof and the said county auditor their certificates, presented them to said treasurer and received their jaay for the entire construction of said ditch although said ditch was never completed. Plaintiffs have no means of enforcing the completion of said ditch.
    “Said plaintiffs are resident taxpayers of said county and are the owners of lands as follows,” (describing them) “all of said lands being in Liberty township, Putnam county, Ohio, and all assessed for the construction of said ditch, and all situated far enough above said shallow, narrow and obstructed places above described, to be deprived thereby of drainage and to be overflowed by the waters that should and would, were those obstructions removed, flow out through said ditch. By reason of said failure to complete said ditch and the wrongful payment to the contractors for the construction thereof, the consideration of the said assessment has entirely failed and plaintiffs thereby suffer an irreparable and continuing damage for which they have no adequate remedy at law.
    “ Plaintiffs therefore pray that the said defendants may be enjoined from collecting said assessments until such time as said ditch shall be completed; that the commissioners be compelled to complete the said ditch and for such other and further relief as equity requires between the parties.”
    
      Bailey <& Bailey, for plaintiffs in error.
    
      Krause <& Eastman, for defendants in error.
   Minshall, C. J.

We are of the opinion that the petition does not state a cause of action and should have been dismissed. The county had no proprietary interest in the ditch. It belongs to the land owners on whose lands, and for whose benefit it was constructed. The commissioners simply acted as a board before whom the necessary proceedings for the construction of the ditch had, by the statute to be conducted. On the petition of the land owners, or some of them, such proceedings were had, that an order was made for its location and construction, and an engineer appointed for letting the work, the taking of bonds from contractors, and the superintendence of the work. Sections 4475,4476,4477 and 4478, Revised Statutes. The engineer is required to give bond for the faithful performance of his duties, and this we must presume he did, for there is no averment to the contrary. He is required to give certificates of the work done, on which payments, on the order of the auditor,- are to be made by the county treasurer. The work as done, is first paid for, in this manner, out of the county treasury, and assessments made on the lands, are to reimburse the county for the advancements thus made in the construction of the ditch for the benefit of the land owners. With the fixing of the time for the sale of the construction of the improvement and the appointment of an engineer to superintend its construction, the connection of the county commissioners with the improvement substantially ends. No duties of supervision are imposed on them. The engineer is - required, section 4475, Revised Statutes, to take a. bond from the contractor for the faithful performance of the work according to contract. And this we presume was done, for thére is no -averment to the contrary. By section 4478, it is provided that “a job not completed within the time fixed in the contract and bond,may be reestimated by the engineer, and resold by him to the lowest responsible bidder, or he may complete it at the expense of the contractor and bondsmen. ”

On the -bond given by the engineer, an action may be brought by any person aggrieved by his failure to do his duty, and a recovery had for his use and benefit, section 4494, Revised Statutes; and on the bond given by the contractor, a suit may be brougt by any one who has sustained damages in consequence of the contractor’s failure to perform the work, and a recovery had for his damages, section 4478, Revised Statutes. There is no averment in the petition of any fact that did, or could, have prevented these parties from resorting to the remedy provided therein, on either or both of these bonds. They are not only adequate, but the only remedies they had or have, for the grievances complained of. They do not aver want of knowledge of the matter as the work progressed. It is no doubt in accordance with the fact, that they knew how the work was being done at the time. Here they might, and should have complained to the engineer; and if he continued derelict in his duty, could have caused him to be removed. It was in the power of the engineer to have had the work reestimated and resold, for the neglect of the contractor to complete it. Without doing any of these things or taking any steps to have the engineer removed, or payments or estimates enjoined, they remained inactive, so far as appears from the petition, until the collection of the assessments was about to be made. Under such circumstances, there is no principle of law or equity under which they can be permitted to shift the consequences of their own negligence to the people of the county. Such must be the result, if these assessments are enjoined; for, they say, the work has all been paid for. But the payment was made from the funds of the .county, and the county cannot be reimbursed except by the collection of the assessments. A party appealing to a court of equity must make a case that will recommend itself to the conscience of the court. Kellogg v. Ely, 15 Ohio St., 64. But our attention is called to section 4491, Revised Statute's, giving the court in which such proceeding is brought, power to enjoin an assessment.- But the power conferred is not an arbitrary one. There must be a reason for the injunction — a case made. This petition, as we have shown, makes none.

Judgment reversed and petition of plaintiff below dismissed.  