
    Augustus M. Thompson v. The Treasurer of Wood County.
    ■ Where the owner of a tract of land was, in strict conformity with the provisions of the act of March 24, 1859 (Swan & Critchfield’s Stat. 523), “ for locating, establishing, and constructing ditches, drains and watercourses,” as sessed the sum of $5.85 for the costs and expenses of the location and construction of a ditch or drain, and commenced proceedings in the common pleas to enjoin the collection of such assessmant, on the ground that said act' was unconstitutional — Held : That an injunction was rightly refused ; the court, as now advised, being unable to see that said act conflicts with the constitution of the State.
    Error to the common pleas of Wood county.
    On the sixteenth day of February, 1861, the plaintiff in error, who was also plaintiff below, and the defendant in error, who was defendant below, came with their attorneys into the court of common pleas of Wood county, and submitted-to the court a case upon the following agreed statement of facts:
    “ It is agreed by the above parties that plaintiff is, and for over .five years last past has been, the owner, in fee simple,, of the south part south-east fraction of section No. five (5),. township No. four (i), U. S. R., situated in Wood county, Ohio; and that on the 5th day of September, 1859, the county commissioners of Wood county, Ohio, under and by virtue-of an act of the legislature of the State of Ohio, to “provide for locating, establishing and constructing ditches, drains- and watercourses,” passed March 24, 1859, 51 vol. Laws of Ohio, page 58, located and established, in due form, a ditch or drain, called the Grassy Creek Ditch, or Ditch No. Eleven,, through the above described land of plaintiff, and afterward, on the 15th day of September, 1860, assessed against the-plaintiff, as owner of .said land, the sum of $5.85, as the costs- and expenses of the location and construction of the ditch or drain aforesaid; that the amount of said assessment was duly-placed on the tax duplicate of Wood county, Ohio, for collection, and is now in the hands of the treasurer of said county, as a tax duly assessed on the land aforesaid, for collection; and that the plaintiff refusing to pay the same, the said treasurer is about to return the said land delinquent, and to assess a penalty thereon for the nonpayment thereof, and to cause said land to be offered for sale for the payment of said delinquency. It is admitted that all of the aforesaid proceedings have been in strict accordance with the provisions of said act of March 24, 1859. Now, if the court shall be of opinion that said act is a constitutional and valid enactment, then judgment shall be rendered in favor of defendant for costs of suit; otherwise, a perpetual injunction shall be decreed against the collection of the aforesaid tax by defendant, and judgment entered in favor of plaintiff for costs of suit.”
    Thereupon the court entered the following finding and judgment:
    “ This day came the parties with their attorneys, and neither party requiring a jury, they submit their cause to the court, on the agreed statement of facts herewith filed; and the court, being fully advised in the premises, are of opinion that the act of the general assembly of the State of Ohio, passed March 24, 1859, vol. 51, page 58, Laws of Ohio, entitled * an act to provide for locating, constructing and establishing ditches, drains and watercourses,’ is a constitutional and valid enactment. It is, therefore, considered, adjudged and decreed that the injunction asked for in this case by the plaintiff be refused, and that defendant go hence without day, and that he recover of the plaintiff his costs herein expended, taxed at $ — ; and that execution issue therefor, as well as for defendant’s costs herein, taxed at $ — . And plaintiff excepts to the ruling and judgment aforesaid.”
    To reverse this judgment, the plaintiff filed his petition in error in this court.
    
      J. F. Price, for plaintiff in error.
    
      James Murray, for defendant in error.
   Brinkerhoff, J.

The question as to the constitutional power of the general assembly to authorize assessments for ditching and drainage, was fully considered by this court in Reeves v. The Treasurer of Wood County, 8 Ohio St. Rep. 333, and such power was there held to exist, whenever the public health, convenience or welfare demanded such assessments, to as full an extent as it did under the constitution of 1802. In that case, the act of May 1, 1854, authorizing the trustees of townships to establish watercourses,” etc., and the amendatory act of April 14, 1857, were held to be unconstitutional, inasmuch as they authorized an appropriation of private property without reference to the public welfare. But the act of March 24, 1853, to provide for locating, establishing, and constructing ditches, drains and watercourses” (Swan & Critchfield’s Stat. 523), here called in question, steers clear of that objection; and, as now advised, we can see no ground on which it can be well claimed to conflict with the constitution.

It is possible, perhaps, that, in the administration of this act, eases may arise presenting so gross an abuse of the powers it confers, as to justify and require the interposition of a court of equity, by injunction, or otherwise. When such case arises, it will be proper to consider it. This is not such a case.

Judgment affirmed.

Scott, C.J., and Sutliff, Peck and Uholson, JJ., concurred.  