
    The City of Mt. Vernon et al. v. The State of Ohio ex rel. Berry.
    
      Municipal corporation enters into contract mth an individual— Under a statute which is unconstitutional — But subject-matter of contract is not ultra vires nor illegal — Facts such as would estop an individual from defense of unconstitutionality — Municipal corporation likewise estopped — Section 2702, Revised Statutes, does not apply, when — Controversy between parties under contract — Cannot be determined in mandamus proceedings, when.
    
    1. Where a municipal corporation has entered into a contract with an individual under and by virtue of a statute which is unconstitutional and the subject-matter of the contract is not ultra vires, illegal or malum prohibitum, and the, facts are such, as against the corporation, as would estop an individual from setting up as a defense the unconstitutionality of the statute, the municipal corporation will also be so estopped.
    2. In- such case, when it is provided, in such statute that section 2702, Revised Statutes, shall not apply to contracts made under such statute, such provision must be read as an exception to said section 2702, and the latter section does not apply to contracts made under such statute.
    3. A controversy between the parties to a contract as to their respective rights under the contract cannot be determined in proceedings in mandamus.
    (No. 9046
    Decided January 31, 1905.)
    Error to tbe Circuit Court of Knox county.
    Tbe relator, tbe defendant in error bere, began tbis action in tbe court of common pleas by a. petition praying for a writ of mandamus requiring the' defendants, the president and members of the city council of the city óf Mt. Vernon, to show cause why they should not pass the ordinance providing for the assessment of that portion of the cost of a street improvement contracted for between the city and the relator that was to be paid for by abutting property owners, and requiring them to pass an ordinance providing for the issuing of the bonds of the city, and to1 proceed to sell the same and out of the proceeds thereof to pay to the relator the , sum of $28,064.24, with interest, which the relator claimed to be due him upon the said contract. The answer of the defendants admitted many of the allegations of the petition, and denied each and every other allegation therein contained which was not specifically admitted to be true, which included a denial of an allegation in the relator’s petition that the contract between him and the city had been completed and that he had furnished the material and performed the work therein specified according to the plans, specifications and profile of said work, in every respect in a workmanlike manner and according to said contract^ and to the satisfaction and acceptance of the civil engineer and paving committee of the city of Mt. Vernon. The second defense set forth that the contract mentioned in the petition was made by virtue of a special act of the legislature known as an act authorizing and empowering cities of the second class, fourth grade, to cause streets and alleys to be paved with vitrified brick, asphalt or other permanent pavement, to pay one-half of the costs, and to issue bonds' for such purposes (94 O. L., 119), which act is alleged to be in contravention of article 2, section. 26, of the constitution of Ohio. The third defense set forth in the answer alleges that at the time that the improvement was let and the pretended contract entered into there was no corporation auditor in said city, and that the city clerk did not certify that the money required for the contract or to pay the appropriation or expenditure was in the treasury to the credit of the fund from which it was to be drawn and not appropriated for any other purpose, and that there was no certificate to that effect filed and recorded as provided by the statute of Ohio. On hearing in the common pleas court, judgment was rendered for the defendants and the petition dismissed at the costs of the relator. An appeal was taken to the circuit court, and in that court the relator demurred to the second and third defenses of the defendants’ answer for the reason that they do not state facts sufficient to constitute a defense to the plaintiff’s cause of action, which demurrer was sustained by the circuit court. Upon the request of the parties to the suit the court made a separate finding of facts and conclusions of law, and thereupon rendered judgment for the relator.
    1. That the relator, W. J. Berry, entered into the contract with the city of Mt. Vernon, Ohio, through its city council, for the paving of a portion of Gambier street in said city as stated in the petition.
    2. That- said relator substantially performed the portion of said contract on his part to be performed.
    3. That said work was to be done and performed in a good and workmanlike manner and to the satisfaction of the city civil engineer and the paving committee of said city council as in the petition set forth.
    
      4. That said committee of said council examined said work when it was completed by said W. J. Berry and were satisfied therewith, except as to some particular defects, which they called to the attention of the said W. J. Berry and which he agreed to remedy; and thereupon said committee prepared and signed a report, in writing, to the city council, expressing its satisfaction with the work done and recommended payment of the same, but said report was never filed with the city council and said city council never took any action thereon; and said committee did not intend that the said report should be its report, or that the same should be filed until the repairs it had suggested should be made to the ■ satisfaction of the city civil engineer as suggested by them to the relator, and as he had agreed to do.
    5. That said W. J. Berry did perform further labor upon said streets and did attempt to remedy the alleged defects pointed out to him by the paving committee of said council and did remedy said defects to the satisfaction of the city civil engineer; but said committee never re-examined the same or attempted as a committee to advise itself whether said work was completed or not and that before the bringing of this suit, the term of office as councilmen of said committee on paving had expired, .and said committee and said council, as a committee or as a council never took any action whatever upon the claim of said W. J. Berry for compensation under the contract.
    6. That while the contract of the said W. J. Berry is substantially performed, there are some defects in material and workmanship which were not apparent at the time he claimed to have completed said work in accordance with the instructions of said committee, but that the same are of small importance, compared with the entire work performed by him, and the failure on the part of Berry to remedy these defects is attributable to the fault of the council and its paving committee in delaying and neglecting to take action in reference to the acceptance of the same.
    We therefore find as our conclusions of law:
    1. That the said plaintiff, W. J. Berry, is entitled to have peremptory writ issue in this action, directing said council to proceed and sell its city bonds and apply the proceeds of the sale of the same to the payment of the amount due plaintiff under his contract less the seven and one-half per cent, which by the terms of said contract said city is entitled to retain as. further guarantee of the material and workmanship upon the said W. J. Berry remedying the defects in workmanship and material now existing in said pavement to the satisfaction of the city civil engineer of the said city of Mt. Vernon in office at the time said work is so completed by the said Berry, and that upon his furnishing the material and doing said work within ninety days said writ may issue.
    2. That said W. J. Berry is entitled to interest upon the amount due to him upon said contract from the date of the commencement' of this action.
    3. That each party pay their own costs made and taxed in this action. To which finding of facts and conclusions of law the defendants except.
    It is therefore considered, adjudged, ordered and decreed by the court that said contractor shall furnish the material and labor and put said Grambier street and Grambier avenue in good condition as required by said contract, to the acceptance of the said civil engineer of the city of Mt. Vernon, Ohio, within ninety days from this date, and upon such work being done to the acceptance of said civil engineer of city of Mt. Vernon, Ohio, then that a peremptory writ of mandamus issue out of this court commanding and directing Charles C. lams, E. C. Beggs, Jethro Mill, George Cheney, Henry Bowden, Samuel A. Trott, Michael Nixon, and B. E. Salisbury, members of the city council of the city of Mt. Vernon, Ohio, to assess according to law upon the abutting property the portion of the cost of making said improvement provided for in said contract to be paid by the owners of said Abutting property, and if said owners shall not elect within thirty days to pay said assessment in cash, then that they issue bonds in anticipation of the collection of said assessment; that the defendants provide for and issue the bonds of the city of Mt. Vernon, Ohio, according to law for the payment of that portion of the cost and expense of said improvement to be paid by said city; that they sell and dispose of all said bonds and out of the proceeds thereof they pay to the contractor, W. J. Berry, the sum of $26,006.20 with interest thereon from, the sixteenth day of May, 1903, being the amount found due by the court to said W. J. Berry on said contract, less the seven and one-half per cent, to be retained by the city of Mt. Vernon, Ohio, under the provisions of said contract for the period of five years. It is further ordered and adjudged by the court that the relator, W. J. Berry, pay his own costs in this , case taxed at $--, and that the defendants pay their own costs herein, taxed at $--. To all of which findings, decrees and judgment the defendants except.
    Thereupon came the defendants and moved the court to set aside its finding and judgment herein for reasons set ont in said motion, and the court being fully advised in the premises, overruled said motion, to which ruling of the court the defendants except, and the parties hereto are given twenty days for a finding of law and facts and the statutory time for the presenting and the signing of the bill of exceptions herein.
    Other facts in the case sufficiently appear in the opinion. This proceeding in error is prosecuted to reverse the judgment of the circuit court.
    
      Mr. J. B. Graham; Mr. F. V. Owen and Mr. J. M. Butler, attorneys for plaintiffs in error.
    The judgment and decree of the circuit court should be reversed for the following reasons:
    The act of the legislature authorizing the contract and improvements in question, passed April 10, 1900 (94 O. L., 119), is in contravention of the constitution.
    The contract is void and the relator without remedy, because there was no certificate that the money required to pay for this improvement was in the treasury to the credit of the fund from which it was to be drawn; and especially because the city clerk did not certify that there was in the treasury to the credit of the fund from which was to be drawn the money required to pay the city’s share of the expenditure caused by the improvement.
    The plaintiff below had an adequate remedy at law. The facts as found by the circuit court do not support or justify its conclusions of law.
    Let our- text be these from the constitution of the state of Ohio: Section 26, art. 2; sec. 1, art. 13; sec. 6, art. 13. It would probably not be impossible to convince the court that the law in question is in contravention of each of these express limitations. The mere citation of the following cases is sufficient: Platt v. Craig et al., 66 Ohio St., 75; State ex rel. v. Cowles, 64 Ohio St., 162; State ex rel. v. Jones, 66 Ohio St., 453; State ex rel. v. Beacom, 66 Ohio St., 491; State ex rel. v. Spellmire, 67 Ohio St., 77; State v. Lewis, 69 Ohio St., 202.
    In fact, in the courts below, counsel for the relator were compelled to admit the nnconstitntionality of the law, but attempted to evade the consequences of that admission by the claim that the city is estopped from asserting the invalidity of the statute and the legality of the contract under it, after the work has been completed by the relator.
    
    If their contention be correct, then this law, though confessedly unconstitutional, is just as effective as a valid enactment. Consequently the real question is, does estoppel prevent a municipality from denying its liability on a contract which has been made in violation of the constitution of the state? Smith’s Modern Law of Municipal Corporations, see. 1672; and in support of that doctrine the author cites: Snyder v. City of Mt. Pulaski, 176 Ill., 397; Seeger v. Mueller, 133 Ill., 86; Pettis v. Johnson, 56 Ind., 139; Stevens v. St. Mary’s Tr. School, 144 Ill., 336; Day v. Green, 4 Cush. (Mass.), 433; Noel v. San Antonio, 11 Tex. Civ. App., 580.
    See also Smith, supra, sec. 227; Sutro v. Pettit, 74 Cal., 332; Town of East Oakley v. Skinner, 94 N. W. Rep., 255.
    If in the case at bar, the city had made the assessment, issued the bonds, and sold them, the purchasers would have placed themselves in the same position as the respondents in the case of Sutro v. Pettit, supra. The bonds would have been worthless and the collection could not have been enforced because they would have been issued without authority. Smith on Modern Law of Municipal Corporations, sec. 1001; St. Joseph Tp. v. Rogers, 16 Wall., 644; Merchants, etc., Bank v. Bergen Co., 115 U. S., 384.
    Our Supreme Court have certainly spoken clearly and conclusively on the question. McCloud & Giegle v. Columbus, 54 Ohio St., 439; Wellston v. Morgan, 65 Ohio St., 219; Lancaster v. Miller, 58 Ohio St., 575.
    If a municipal corporation is not estopped from setting up statutes in defense to contracts made in disregard of them, why should it be estopped when it has no authority whatever to enter into a contract? We think such a proposition is without reason.
    Counsel for the plaintiff below cited and relied upon the case of Tone v. Columbus, 39 Ohio St., 281. That case is not the case at bar. That was a case of an individual estopped by silence with knowledge of the imprbvement going on. But a very different rule applies where the city acts without authority. It will not be estopped from setting up the invalidity of the contract. A party is not estopped by mere silence, unless he has induced the other party to change to his disadvantage. The holding of the Supreme Court in Tone v. Columbus, supra, that a party is estopped from denying the validity of the assessment by mere silence while the improvement was being made, goes beyond this rule, and is not supported by the holding of that court in Columbus v. Agler, 44 Ohio St., 485, which lays down the true rule, which is, in such cases that the property owner is not called upon to do anything until steps are taken to make the assessment. Lewis, Auditor, v. 
      Symmes et al., 61 Ohio St., 487; Comstock v. Nelsonville, 61 Ohio St., 288.
    We have not been unmindful of the possible claim that equity and good conscience require that a contract made under a special law, confessedly unconstitutional at this time, should not be subjected to the doctrine of the Toledo and Cleveland cases. Nor have we overlooked Shoemaker v. Cincinnati, 68 Ohio St., 603.
    Indeed, we have assumed that this court in the Shoemaker case deliberately indicated its policy with respect to special legislation and its effect upon contracts and assessments thereunder. As a matter of fact, we are willing that the principle of that case may be extended. In the Shoemaker case, in the city of Cincinnati, there had been legislation of the same general character, theretofore held to be constitutional. But for the sake of argument we are willing to admit, and equity and good conscience seem to require, that contracts and assessments created under a special law should not depend for their validity upon the fact that in that particular city similar legislation had been held to be constitutional. In our judgment, it is sufficient that legislation of the same general character throughout the state in all cities where the question arose had been held to be constitutional and that the decision of the Supreme Court not only in some particular city, but also in the state as a whole, had become fixed, approximating “a rule of property.” It seems to us that the rules of res adjudicata and stare decisis should be applied in such cases as effectively as they were applied in the Shoemaker case.
    But have the facts in the case at bar justified a claim for any such equity or good conscience? Does the contractor, the defendant in error, present himself so as to require at the hands of this court the application of the principle of the Shoemaker case? What are the facts ?
    The special law under which the contract in the case at bar arose was enacted by the legislature on the tenth day of April, 1900, 94 O. L., 119. On the 26th day of May, 1902, this court handed down the decisions in the Toledo and Cleveland cases, decisions whose meaning even a layman could not misunderstand, decisions which effectively and forever brought us back to the safeguards of the constitution. The printed record discloses that it was subsequent to those decisions,' June 16, 1902, when the contractor submitted his proposition to the council of the city of Mt. Vernon for the work in question. And the petition discloses that the contract was made on the eighth day of July, 1902.
    In other words, after this court had given its maturist consideration to special legislation and after it had with unmistakable clearness declared that all such special legislation should not stand, this contractor deliberately entered into the contract now before this court.
    The contract is void and the relator without remedy, because there was no certificate that the money required to pay for this improvement was in the treasury to the credit of the fund from which it was to be drawn; and especially because the city clerk did not certify that there was in the treasury to the credit of the fund from which it was to be drawn the money required to pay the city’s share of the expenditure caused by the improvemertt.
    It is probably true that no one will contend at this time that if compelled to issue bonds to pay its part of the cost of this improvement, the city of Mt. Vernon could issue such bonds under any law except the general law known as the Longworth act and the amendments thereto, a law. of' general application throughout the state.
    The position of this court as to the requirements of section 2702 and in general as to the requirements of all like statutes, has been So- clearly defined that nothing remains except to cite a few of the leading, cases: Cincinnati v. Holmes, 56 Ohio St., 104; Lancaster v. Miller, 58 Ohio St., 558; Buchanan Bridge Co. v. Campbell et al., 60 Ohio St., 406; Findlay v. Pendleton, 62 Ohio St., 80; Comstock v. Nelsonville, 61 Ohio St., 288.
    . This court has shown no desire to limit the application of section 2702. The Bums law today is probably the best safeguard in the statute books against municipal extravagance. We do not believe that this court will limit the doctrines of the Com-stock case.
    The plaintiff below had an adequate remedy at law. He was not entitled to the extraordinary remedy of mandamus.
    The relator in his petition invoked, and the circuit court in its decree granted, a double relief:
    (a) The city was commanded to issue and sell its bonds for the payment of its part of the cost of the improvement, and to issue and sell its bonds in anticipation of the collection of the assessments that were to be levied upon the abutting property.
    (b) The city was directed to hand over to the relator, the contractor, the proceeds of these bonds to the full satisfaction of his claim.
    Let us go back once again to fundamental principles. Sections 2 and 4, art. 4, of the constitution of Ohio; see. 5, art. 1, the Bill of Bights of Ohio; sec. 6744, Bev. Stat.; sec. 6741, Bev. Stat.
    . What fact is there in the case at bar to relieve the relator from the obligation of the foregoing provisions of the constitution and of the foregoing provisions of the Bevised Statutes?
    This act is based upon contract merely. State ex rel. v. Turnpike Road Co., 16 Ohio St., 308.
    Will it be contended, will this court patiently listen to the argument, that this contractor could not have brought an action in the court of common pleas against the city of Mt. Vernon asking judgment for the amount of money which he claims is due him? And if that be possible, why should he be permitted to resort to mandamus ?
    The learned judges of the circuit court appear to have wholly misinterpreted the extraordinary remedy of mandamus. Their judgment seems to have been based upon the case of State ex rel. v. Crites, Auditor, 48 Ohio St., 142. That case will be remembered as the one wherein this court made the remedy of mandamus somewhat flexible and held that the relator could not be denied relief merely because he did not show himself entitled to all of the relief which he had claimed in the alternative writ. In other words, Judge Bradbury in that case held that it is permissible to carry into the application of this remedy some of the flexibility which attaches in general to our code of civil procedure. But nowhere does the court in the syllabus or the learned judge in the opinion intimate that mandamus should be other than mandamus, or that it is possible to confuse that remedy which the general relief that a court may grant in a suit in equity.
    
      But the learned judges of the circuit court seem to have taken the language of this State ex rel. v. Crites, Auditor, supra, as their warrant for assuming, if in a mandamus case it should he found that the relator is right and the respondent is wrong, the court should award some relief even though the relief awarded him he equitable rather than that which attaches to the remedy of mandamus.
    ' Fortunately for us it is sufficient to refer to the case of Fraternal Mystic Circle v. State ex rel. Fritter, 61 Ohio St., 628.
    In the opinion in the latter case, Judge Shauck in the most masterly and incisive way sets out the reasons why this court cannot tolerate the enlargement of its jurisdiction, and why consequently the remedy of mandamus must be forever kept separate from actions at law or suits in equity. That opinion is our defense here, and must remain the defense of every one who insists upon the protection of the constitution, the right of trial by jury and the illegality of an attempt to foreclose his rights arising out of a simple contract by invoking the alternative writ.
    
      Messrs. Waight & Moore and Mr. J. C. Taiman, attorneys for defendant in error.
    It is not necessary to argue, or inquire as to the constitutionality of this actit may be obnoxious to the late rulings of this court upon the subject of special legislation, but it by no means follows that, that is a sufficient reason for denying defendant in error pay for his work.
    It was the conclusion of the circuit court, and is the contention of the defendant in error, that plaintiffs in error represented at all times by learned counsel, are late in discovering this law to be uncon-. stitutional, that the city, after the work is completed by the contractor, in this kind of an improvement, is estopped from claiming want of authority or the unconstitutionality of the law under which they proceeded in making the improvement.
    We have no bill of exceptions embodying the evidence introduced upon the trial of this case in the circuit court, but it sufficiently appears from the admitted facts in the pleadings, and the finding of facts made by the circuit court, that this improvement was made by the city, iipon the petition of abutting property owners, and the cost of the same was to be paid by assessment upon abutting property, except at street intersections, which was to be paid by the sale of bonds, provided for in the act. The making of such improvement is not illegal per sé, or malum prohibitum, but belongs to that class of local improvements, in which, the city represents the abutting property owners, and which they have authority to make. The work having been completed according to contract, and the city failing to make the assessment upon abutting property, issue and sell the bonds,.and pay the contractor therefor, he brought this suit asking that they be compelled by mandamus to do these several things, and the answer comes back that the whole thing is illegal, the law unconstitutional; we have your work and material, but you can’t get your pay, at least not in this proceeding; to which we reply, you are late in making your claim.
    Estoppel to claim want of authority in the 'city, or that the law is unconstitutional under which they are proceeding, arises, in improvements of this character, against the abutting property owner who petitions for the improvement against the city, so far as it represents the abutting property owner, and so far as any liability incurred by the city itself, in the making of such improvement. If an abutting property owner is not estopped by reason.of any fact peculiar to his case, that cannot be taken care of in this case, but individual cases can be taken care of by resisting the assessment upon the property.
    The authority cited in plaintiffs in error’s brief— Smith’s Modern Law of Municipal Corporations, sec. 1672, cites in support of the text, Noel v. San Antonio, 33 S. W. Rep., 263. This case, and the others cited in the brief of plaintiffs in error wherein courts have refused to find municipal corporations estopped, are cases where the acts of the corporation involved were ultra vires — without the pretext of authority in the city to do the act, — very different from - the case at bar. No case has been cited, and we believe none can be found, where courts have refused to apply to municipal corporations the wholesome doctrine of equitable estoppel, estopping them from claiming a law, under which they had proceeded in making a street improvement within the scope of their general authority, unconstitutional; such work is not ultra vires, but is one of the chief purposes of a municipal corporation. The doctrine of equitable estoppel applies to municipal corporations the same. as to natural persons. Bigelow on Estoppel, 468; Smith’s Modern Law of Municipal Corporations, sec. 1670-1671; South St. Paul v. Lamprecht Bros. Co., 88 Fed. Rep., 449; Railroad Co. v. Carthage, 9 Circ. Dec., 833; Bigelow on Estoppel, 376; Herman on Estoppel, sec. 1222; Logan County v. Lincoln, 81 Ill., 156; Depot Co. v. St. Louis, 76 Mo., 393; Grant v. Davenport, 18 Ia., 180; Atlanta v. Gas Co., 71 Ga., 106; Oshkosh 
      v. State, 59 Wis., 425; Railway Co. v. People, 91 Ill., 251; Tone v. Columbus, 39 Ohio St., 281; Lane v. Kennedy, 13 Ohio St., 42; Elster v. Springfield, 49 Ohio St., 82; 2 Dillon, sec. 675.
    Estoppel from claiming unconstitutionality of a law under which a municipality has made a street improvement, after the work has been completed by the contractor, has been directly held by this court, in Ohio ex rel. v. Mitchell, 31 Ohio St., 592. In that case the duty of the commissioners against whom estoppel is held, was the same as devolve upon council in the case at bar.
    The only rights of third persons that had intervened, was the right of the persons holding the obligations for the work, to their pay. To the same effect is Tone v. Columbus, 39 Ohio St., 281.
    The effort to distinguish this case from the case at bar, because estoppel was applied to an abutting property owner, has no force, if it be true that estoppel applies to municipal corporations the same as to natural persons. McCloud et al. v. City of Columbus, 54 Ohio St., 439, the court holds no grounds for equitable estoppel, not that it would not be applied in a proper case. Wellston City v. Morgan, 65 Ohio St., 219, no question of estoppel in the case.
    The Burns law, section 2702, Revised Statutes, has no application to any part of the claim in this case. It is not applicable to so much of the cost and expense of this improvement as is to be assessed on abutting property. Comstock v. Nelsonville, 61 Ohio St., 288.
    It is not applicable to that part of the expense to be paid by the city:
    First: Because section 7 of the act under which this improvement was made, exempts it from the provisions of the Burns law, and if they are estopped from claiming the law unconstitutional, they are equally estopped as to this section.
    Second: Because the city’s portion of this expense is to be paid by selling “street paving-bonds.” There is a distinction between cases where the money is to be provided in the first instance by taxation, and where it is to be provided by the sale of bonds. In the first case the Burns law applies; in the sec-. ond, it does not. This is very clearly set forth in Cincinnati v. Holmes, 56 Ohio St., 113; Elster v. Springfield, 49 Ohio St., 84.
    As to the claim that the defendant in error has an adequate remedy at law — we wish counsel would be more specific and give us a general outline of this remedy at law, to which they would not have objected with more vigor than to the present proceeding, and in which they will agree to be estopped from setting up the defense, that our remedy was by mandamus. Is this remedy at- law against the abutting property owner, or is it against the city? Is it upon the contract, or for damages for breach of contract, and what should be the form of the judgment rendered?
    It seems to us, reading the contract of the defendant in error, with the city, in connection with the law under which they were proceeding in making this improvement, that the only obligation into which the city entered, was, that upon the completion of this work by the defendant in error, and upon ascertaining the cost thereof, the city would allow the relator the contract price therefor, and would assess that portion of the same to be borne by the abutting property owners, upon the abutting property, and for that portion thereof to be paid by the city, they would issue and sell bonds, under the provision of this law, and pay the proceeds thereof to defendant in error,.for said work; thus creating a fund from a particular source, applicable to a particular purpose. Could a jury in this action at law, recommended by plaintiffs in error, render a verdict to be paid in this way, out of this special fund?
    That officers of a municipal corporation may be compelled by mandamus, to perform duties devolving upon them, such as in this case, we need not cite authorities.
    That mandamus is the proper remedy to compel the making of assessments, the issue and sale of bonds, we cite: Railway Co. v. Clinton Co., 1 Ohio St., 77; State v. Van Horne, 7 Ohio St., 327; State v. Clinton County, 6 Ohio St., 280.
    But it is claimed that having mandamused the necessary acts to place this money in the treasury,, it is then necessary to resort to an action at law to get it out.
    Judge Wright in the case of State v. Perrysburg, 27 Ohio St., 103, has made all the argument necessary as to the right of a court in proceedings in mandamus to order the application of funds derived for a certain purpose, to that purpose. To the same effect is: Cass Tp. v. Dillon, 16 Ohio St., 38; State v. Treas. Wood County, 17 Ohio, 184.
   Davis, J.

The statute under authority of which the contract in question was made, was passed in April, 1900 (94 O. L., 119). It does not differ very materially from the general provisions of .the Revised Statutes in regard to its subject-matter, except as indicated in its title, that is, it authorizes the city to pay not exceeding one-half of the costs and expenses thereof and to issue bonds for such purposes. It also provides that section 2702 of the Revised Statutes shall not apply to contracts made under the act. Power to improve the streets, to make assessments on abutting lot owners, to issue bonds in anticipation of the payment of assessments, and to pay a certain proportion of the costs and expenses of the improvement, was already invested in all the cities and villages of the state.

The classification which is applied in the act in question would have been accepted generally as constitutional, prior to the decisions of this court which led to the extraordinary session of the general assembly in October, 1902; and such view would have been justified by former utterances of this court. The act itself has not yet been specifically declared to be unconstitutional by this court, although doubtless it may be justly inferred from the decision announced in The State ex rel. Knisely v. Jones, 66 Ohio St., 453, that such a conclusion, would be reached. In that case it was held that the system of classification and reclassification into classes and grades of classes, as then in vogue, was unconstitutional because it evinced an intention of the legislature to isolate the principal cities of the state into classes each containing but one city. That was admittedly so in the case then before the court and also in State ex rel. v. Beacom, 66 Ohio St., 491. In the case first cited it was held that, “an act to confer . such power upon a single city by such classification is repugnant to section 1 of article 13 of the constitution.” The court also expressly reserved an opinion on ‘the question whether the provisions of the sixth section of article 13 is an exclusive classi.fication of municipalities into cities and villages. The classification of this act, “cities of the second class and fourth grade,” unlike the classification in most, if not all, other cases, included a considerable number of cities in different parts of the state, being cities of not more than ten thousand population and not less than five thousand. So that with the considerations already suggested, there was ground for a contention that the present act ultimately would be held to be constitutional; and this is so although we may assume, for the purposes of this case, that under the decisions to which we have referred the act would have been held by this court to have been unconstitutional.

The relator contends that whether the act be unconstitutional or not, as being special legislation, the city is estopped from setting up that defense, inasmuch as it entered into this contract immediately after the decisions of this court which have been referred to were announced, with no objection or suggestion as to its want of power to make the same, and the plaintiff entered upon the performance of his contract and completed it before the objection was made that this act was unconstitutional. It may be accepted as the law that there can be no estoppel where there is an entire absence of power; but the answer to that in this case is, that the corporation was not acting ultra vires, that is, without any power whatever under the act in question or from any other source. For, as it has already been suggested, the city had ample power to improve the streets and to pay for them under other statutes, this statute differing only in the details as to the amount that the city should pay as its portion of the costs and expenses and as to the manner in which bonds should be issued, sold, and the proceeds applied, and in the provision that section 2702 of the Revised Statutes shall not apply to contracts made under the provisions of this act. The act provides: “Section 9. All other provisions of the Revised Statutes relative to the improvement of streets and alleys, and assessments to pay the cost thereof, not inconsistent with the provisions of this act, shall remain in' full force and he followed by councils of such cities in making improvements and assessments therefor.” ‘The powers elsewhere granted to the municipality are expressly read into this act in aid of it, by this provision; and it follows that a contract made under this act must necessarily be supported by powers elsewhere granted to the municipality. Hence it cannot be true in this instance that, conceding the unconstitutionálity of the act there was a total want of power in the city to make the contract. It is precisely such a case as that in which it often has been held that a municipal corporation may be estopped, because the existence of an apparent corporate power to contract upon the subject-matter and the silence of the' municipality in relation to matters of less obvious importance, may entrap an innocent party into disastrous consequences.

While it is generally true that unconstitutional statutes aré nullities from the beginning and that everything done under them is absolutely void, yet it is not universally so. It was said by the court in Findlay v. Pendleton, 62 Ohio St., 88-89; “Liabilities are occasionally enforced against parties growing'out of proceedings under an unconstitutional act, as in Tone v. Columbus, 39 Ohio St., 281, and Mott v. Hubbard, 59 Ohio St., 199, but such enforcement is not by virtue' of the unconstitutional'act, but by virtue of the acts of the parties whereby they have become estopped' from contesting the liability against them.” In State ex ret. v. Mitchell, 31 Ohio St., 592, it was held that an act to provide for the improvement of streets and avenues in certain cities of the second class .was unconstitutional, and that “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.” And in the opinion it was said: 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 v. Landran, 1 Bush, 548 ; Ferguson v. Landran, 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.” In Tone v. Columbus, 39 Ohio St., 281, it was determined by this court that: ‘ ‘ The principles of estoppel apply as well where proceedings of a .corporation are questioned on the ground of the unconstitutionality of the statute under which they are had, as where they are attacked upon other grounds, unless such proceedings, or what is sought to be. accomplished by them, are per se illegal or malum prohibitum.• Want of power in the corporation may be waived, or an estoppel may arise from failure to assert it at the proper time.”. It is replied to this argument that the cases now- cited are cases in which the principle of estoppel was held to apply as against private individuals only, and that it was not determined in any of these cases that estoppel will run against a municipal corporation where the statute under which it assumed to act is unconstitutional. But no good reason appears why the doctrine of estoppel should not he applied as against a municipal corporation as well as a private individual where the power to act does not entirely depend upon the unconstitutional act, and this seems to he the purport of the authorities. 1 Dillon Munic. Corp. (4 ed.), sec. 457; 2 Id., sec. 935; 1 Smith Munic. Corp., secs. 227, 229, 233; 2 Herman on Estoppels, sec. 1223.

Now what are the facts in the present case which raise the question of estoppel? Sometime in the spring of 1902, the precise date not appearing in the record, a majority of the abutting lot owners petitioned the council of the city of Mt.- Yernon to pave Gambier street and Gambier avenue between Main street and Eogers street. Due notice was given of the filing of this petition, and the council thereafter determined that a majority of the owners of the real estate abutting on the improvement had signed the petition; that the material petitioned for by them was proper material to be used in the improvement; that it was necessary to improve the street and avenue as asked for in the petition; and thereupon the council determined by resolution that it was necessary to improve the said street and avenue by grading and paving the same, and assess the cost thereof, except at the intersection of the streets thereon, back upon the abutting property, and to issue bonds of said city according to law for the payment of the cost and expense of making said improvement. Thereafter the city caused its proper officers to prepare plans and specifications for said improvement, and the city advertised for bids for furnishing the material and doing the work of making said improvement according to said plans and specifications, and the relator bid on the work and was the lowest bidder therefor, and was thereby entitled by law to the contract for the performance of that work.

All of this took place prior to the decision of The State ex rel. Knisely v. Jones, 66 Ohio St., 453. The relator’s proposal was filed with the city on the sixteenth day of June, ten days before the announcement of that decision, June 26, 1902, and, for aught that appears, in perfect good faith and reliance, and certainly with good reason to rely, upon the constitutional validity of the statute under which these proceedings were had. Twelve days after the announcement of that decision, the city authorities accepted said proposal and entered into the written contract in question in this case, without having suggested any objection upon the ground of the unconstitutionality of the act; nor was any such objection made until about the thirteenth of November, 1902.

Indeed the presumption is just as strong that the city, by its officers, knew what had been decided in State ex rel. v. Jones and State ex rel. v. Beacom, and what would be decided as to this act, if the case ever should arise, as the relator; and if with that knowledge the city accepted the relator’s bid, made previous to those decisions and in reliance upon a previous line of decisions, and upon that bid entered into a contract with him, it indicates, at the least, a willingness that the relator should be misled to his irreparable injury and to the advantage of the city many thousands of dollars. These facts, and all the considerations which we have adverted to, would seem to make it in the highest degree inequitable-to allow the city authorities, after they had obtained the benefits of this contract, to make the claim of their utter want of power to enter into it or to perform it.

But another contention is made in the case, and that is, that section 2702 of the Revised Statutes, familiarly known as “the Burns law,” has not been complied with. If we are right in our view that the plaintiffs in error are estopped from alleging the unconstitutionality of the act under which they proceeded, then there is nothing in the contention upon this point; for the act specifically provides, in the seventh section thereof, that “the provisions of section 2702 shall not apply to contracts made under the provisions of this act.” This provision may be read as an exception to section 2702. Cincinnati v. Holmes, 56 Ohio St., 104; Comstock v. Nelsonville, 61 Ohio St., 288, 297.

But we think that the relator is at least premature in his application for relief by proceedings in mandamus. A distinct issue of fact is made in the record as to the performance of the contract by the relator, according to the plans and specifications. It is true that the circuit court makes a finding that the contract was “substantially performed,” but it also finds that there were certain defects in material and workmanship existing in the work at the time that it was examined by the city civil engineer and paving committee. In other words the relator has not shown a clear legal right to recover under his contract. This controversy between the parties cannot be determined upon the petition for mandamus. Contractual rights can only be settled in an action at law. "We therefore for that reason alone reverse the case and remand the same to the court of common pleas for further proceedings.

Judgment accordingly.

Spear, C. J., Price and Crew, JJ., concur.

Shauck, J., concurs in the third proposition of the syllabus and in the judgment.  