
    Mott et al. v. Hubbard, Treas., et al.
    
      County roads — Parties who participated in proceedings are estopped from enjoining, when — Invalidity of act of March IS, 1894 — Constitutional law.
    
    1. The act entitled “An act to supplement section 4637 of the Revised Statutes of Ohio, ” 91 O. L., 64, is unconstitutional, for the reason that its subject matter is of a general nature, and its operation is local.
    
      2. Parties who invoked proceedings under that act, and actively-participated in such proceedings, from the signing of the petition to the making of the assessment for the improvement of a road, under the act, are estopped from enjoining the collection of an assessment for the payment of the costs incurred in the proceedings so invoked by them; but no such estoppel arises as to enjoining further proceedings under the act.
    (Decided November 29, 1898).
    Error to the Circuit Court of Cuyahoga county.
    On the twenty-second day of November, 1895, the plaintiffs in error, also plaintiffs below, Roland C. Mott, Orlando A. Houghland, Oscar F. Powers, William A. Kennedy, Martha B. Kennedy, Charles Lock, George F. Leick, William L. Leick, Charles M. Yorce, John Marzell, Henry G. Vorce, and Henry Houck, commenced their action in the court of common pleas against the treasurer, auditor and commissioners of Cuyahoga county to enjoin the collection of an assessment placed upon the duplicate against their lands, and to enjoin the placing of further assessments upon the duplicate, in a proceeding for the widening and improving of a county road, known as Euclid avenue, pursuant to the provisions of the act of March 13, 1894, entitled “An act to supplement section 4637 of the Revised Statutes of Ohio,” 91 Ohio Laws, 64.
    The grounds upon which the injunction was asked were, among others, that the said act was unconstitutional, and that the assessments included $4,800 as expenses for building certain bridges and culverts.
    The defendants by their answers traversed all the grounds upon which the injunction was asked, and in addition pleaded that the plaintiffs were estopped from questioning the constitutionality of the act, because they had procured the passage of the act in question; had petitioned for the improvement; had taken an active part in all the steps connected with the improvements so far as they had gone; had occasioned an expense of $1,644.08 in the proceedings had in the case.
    The court of common pleas held the assessment for bridges and culverts void and enjoined the collection of the $4,800, and dismissed the petition on its merits as to the balance of the assessment.
    The case was appealed to the circuit court by the plaintiffs below, and upon trial in that court there was a separate finding of facts and conclusions of law as follows:
    
      Fwst — That all the plaintiffs excepting Martha B. Kennedy, George F. Leick, William Leick and C. M. Vorce, assisted in procuring the passage by the legislature of the state of Ohio, of the act of March 13, 1894, 91 O. L., 64, and that of said plaintiffs, George F. and William Leick, H. Houck and John Marzell, signed the petition'presented to the-county commissioners for the widening and improvement of said road, limiting the width thereof to one hundred (100) feet; and all the other plaintiffs signed a petition presented to the county commissioners asking that the width of the improved road be limited to eighty (80) feet. That accompanying’ said petition there was filed with the said county commissioners a bond duly certified and attested, containing as the conditions thereof a recital of the substance of the said petition, and in all respects conforming to their requirements of law in such case made and provided; and that all of said -plaintiffs were present with the viewers when they made the survey, and participated in their action; that all of said plaintiffs presented claims for damages growing out of said improvement, to the said viewers, and damages were awarded by said viewers to all said plaintiffs upon such application; that the action of the viewers was approved by the county commissioners, and the road established as prayed for-under said statute at the width of one hundred (100) feet. That from the award of damages thus made, two of the plaintiffs, O. F. Rowers and H. G. Vorce, and others not plaintiffs, appealed to the probate court and had a trial in that court on the question of the damages which should be awarded to them by reason of said improvement, and in said court, were awarded greater damages than they were given by the viewers, which award in the probate court was afterwards certified to the county commissioners and approved by them, and included by them in the assessment thereafter made to defray the expenses of said improvement. Costs were made in said proceeding in the probate court to the amount of $629'’. 63; that the costs of the proceedings down to the report of the reviewers and the order of the county commissioners approving the report and establishing the road, amounted to $583.60; that thereafter the county commissioners made an assessment to defray the costs of making said improvement in accordance with the said statute, among others upon lands owned by all of said plaintiffs respectively; that all of said plaintiffs appeared before the county commissioners and participated in the proceedings of making said assessment; that thereafter all of■ said plaintiffs except George F. Leick and William Leick excepted to said assessment on their respective lands so made by the county commissioners, and necessitated the appointment by said county commissioners under said act of March 13, A. D. 1894, of a board of equalization ; that thereafter all of said plaintiffs, except George F. Leick and William Leick, appeared before said board of equalization and participated in the equalization of said assessment made by said board of equalization; that thereafter said assessment so equalized by said board of equalization was approved by the board of county commissioners; that the costs of making said assessment before said county commissioners and by said board of equalization, amounted to $430.85; that the total expense of the said proceeding toward the making of said improvement, amounted to $1,644.08, of which sum $1,060.48 was made after the county commissioners had approved the report of the viewers, and ordered the improvement made; and that all of said expenses are included in the assessment for the costs of said improvement in said petition; that all of said costs have been paid by the county except the costs made in the probate court as above stated; that all of the steps and proceedings in reference to the widening and improving of said road, are in accordance with said act, and the other statutes bearing upon the cause; that nothing has been expended in grading or improving the said road. The court in addition to the foregGing facts is of the opinion that it should, and it does, take judicial notice of the fact that there is a necessity for wide and better improved roads in counties containing a city of the first class, second grade, and in the vicinity of such city than in counties containing no populous municipality ; but no evidence was permitted to be given in support of such proposition. “Findings of Law.” First— The appeal in this case to the circuit court vacated the entire decree in the common pleas court; Second — -That plaintiffs are estopped from asserting the uneonstitutionality of said act of March 13, 1894; Third — That the law in question is constitutional, the classification as to roads made by it is just and not illusory, reasonable and not arbitrary, judicious and not unnecessary; that the whole amount of said assessment was legally assessable upon the lands fronting upon said road, it is therefore ordered, adjudged and decreed by the court that the interlocutory injunction heretofore allowed herein be, and is dissolved; that the petition herein be dismissed, and that defendants recover of plaintiffs their costs herein to be taxed, to collect which execution, as of a judgment at law is awarded them, and that plaintiffs pay their own costs herein. Ordered that a special mandate be sent to the court of common pleas to carry this judgment into execution.
    
      Whereupon plaintiffs in error filed their petition in error in this court seeking to reverse the judgment of the circuit court.
    
      Prentiss dkVorce, for plaintiffs in error.
    The subject-matter of the act of March 13th is of a general nature, and its operation is restricted to “any county containing a city of the second grade of the first class;” and, as Cleveland is the only city of that grade and class, the operation of the act is restricted to Cuyahoga county, and the act is, therefore, unconstitutional and void.
    Section 5 provides that “The commissioners may order such part of the compensation, damages and costs, as they may deem equitable, to be paid out of the county treasury. ”
    This action is brought under the statute, section 5848, Tone v. Columbus, 39 Ohio St., 301; Stephen v. Daniels, 27 Ohio St., 536; Steese v. Oviatt, 24 Ohio St., 253; Costello v. Wyoming, 49 Ohio St., 202; Kelley v. The State, 6 Ohio St., 269; State et al. v. Davis, 55 Ohio St., 15; Cincinnati v. Steinkamp, 54 Ohio St., 295.
    There is no estoppel as to any of the preliminary expenses incurred. In the first place they are all preliminary to the widening, grading and draining of the road, and are provided for only by said section 4638, and there is no provision for assessing any part of them upon the abutting property..
    There can be no estoppel against the plaintiffs from taking advantage of the invalidity of the act of March 13th, in case it should be so held; for in that event no liability^ can be incurred, or money expended, or improvements made, as there is neither averment or finding* by the court that there are any existing liabilities as to such improvement.
    The decree against the defendants, enjoining them from including the cost of bridges and culverts in the assessment, amounting to $4,800, was a separate and independent question from the rest of the case, and was based upon the provisions of other statutes. 860, 2634, 4800, 4848 and 4938; 1 Ohio St., 520; 50 Ohio St., 494.
    
      P. II. Kaiser, City Solicitor, James W. Steivart, II. G. Bunts and White, Johnson, Mo Oaslin c& Gannon, for defendant in error.
    The Supreme Court of Pennsylvania, held that petitioning for the passage of an ordinance to make the improvement estopped the petitioner from questioning the constitutionality of the act conferring the authority to pass the ordinance. Bidwell v. Pittsburg, 85 Pa. St., 412; Dewhurst v. Allegheny, 95 Pa. St., 437; Collier v. Morrow, 90 Ga., 148.
    Persons petitioning for an improvement and not objecting afterwards during its progress, are estopped from questioning the constitutionality of the act under which the improvement is made. Motz v. Detroit, 18 Mich., 495; Ricketts v. Spraker, 77 Ind., 371; Ferguson v. Landram, 1 Bush., 548.
    Persons who petition for public improvement cannot afterwards maintain a bill to restrain a collection of a tax to pay for it. Byram v. Detroit, 50 Mich., 56.
    We now come to the decisions of this court. Kellogg v. Ely, 15 Ohio St., 64; Wright, Treasurer, v. Thomas, 26 Ohio St., 346 ; Teegarden v. Davis, 36 Ohio St., 601; Quinlan v. Meyers, 29 Ohio St., 500; State ex rel. v. Mitchell, 31 Ohio St., 592; Counterman v. Dublin Township, 38 Ohio St., 515; Tone v. Columbus, 39 Ohio St., 281.
    The North High Street assessment came again before the Supreme Court in three cases reported in the 44 Ohio St., two of which interest us here. In the first, it was held that signing a petition for the improvement estopped the petitioners from qhestioning the constitutionality of the act. Columbus v. Sohl, 44 Ohio St., 479.
    In the second case, it was held that voting at the election of the commissioners, estopped from questioning’ the constitutionality of the act, even though afterwards the voter remonstrated against the improvement. Columbus v. Slyh, 44 Ohio St., 484; Treasurer v. Martin, 50 Ohio St., 197.
    The decisions of this court indicate that it does not necessarily follow that a statute relating to a matter of a general nature may not yet concern matters peculiar to a locality, and therefore be constitutional, although applying only to that locality. Welker v. Potter, 18 Ohio St., 85; State ex rel. v. Judges, 21 Ohio St., 1; State ex rel. v. Capeler, 39 Ohio St., 207; Hart v. Murray, 48 Ohio St., 605; McGill v. State, 34 Ohio St., 228; State v. Kendle, 52 Ohio St., 346; State ex rel. v. Shearer, 46 Ohio St., 275; Marrmet v. State, 45 Ohio St., 63.
    Apparently, but yet not quite certainly, this court seems to hold that this rule does not apply to legislation on the subject matter of roads. Hixon v. Burson, 54 Ohio St., 470 ; State ex rel. v. Davis, 55 Ohio St., 15.
    That this statute is of uniform operation throughout the state cannot be questioned under the decisions of this court,' for it applies to every county ■ in the state which, either now or at any time hereafter, may contain a city of the first class, second grade. Bronson v. Oberlin, 41 Ohio St., 476; Heck v. State, 44 Ohio St., 536; Senior v. Ratterman, 44 Ohio St., 661; Railroad Company v. Iowa,94 U. S., 155; Haskell v. Burlington, 30 Iowa, 230; State v. Nelson, 52 Ohio St., 88; State ex rel v. Cincinnati, 52 Ohio St., 419; Nichols v. TFbfócr, 37 Minn., 264.
    First of all, the classification in the statute in question is based upon the classification of municipalities within its borders. After considerable question and many doubts, it seems to be now set-tied that proper classification of municipalities by population is valid. Ohio ex rel. v. Covington, 29 Ohio St., 102; State v. Powers, 38 Ohio St., 54; State v. Brewster, 39 Ohio St., 653; State v. Pugh, 43 Ohio St., 98; aff. 15 Bull., 66; State ex rel. v. Hawkins, 44 Ohio St., 98; State ex rel. v. Hudson, 44 Ohio St., 137; State v. Smith, 48 Ohio St., 211; State ex rel. v. Baker, 55 Ohio St., 1; Cincinnati v. Conner, 55 Ohio St., 82; Hayes v. Cleveland, 55 Ohio St., 117; Dietz v. Cleveland, 55 Ohio St., 645; Seifert v. Weidner, 12 O. C. C., 1; -5 C. D., 506; aff. 55 Ohio St., 646.
    This right to classify municipalities does not-rest, as has been sometimes stated, merely upon the clause in the constitution relating to the classification of municipalities, but rather rests upon the general right and duty of the legislature to properly classify the subjects of legislation. Haskell v. Burlington, 30 Ia., 232; Iowa R. R. Land Co. v. Soper, 39 Ia., 112; Wheeler v. Philadelphia, 77 Pa. St., 338; Kilgore v. Magee, 85 Pa. St., 401; Darrow v. People, 8 Col., 417; State ex rel. v. Hammer, 42 N. J. L., 435; Freeholder, etc. v. Buck, 51 N. J. L., 155; Gibbs v. Morgan, 39 N. J. Eq., 126; State v. Parsons et al., 40 N. J. L., 123; Nichols v. Walter, 37 Minn., 264.
    
      The act of the twenty-fifth of April 1882 (82 O. L., 156, section 2293a), empowering cities of the first grade, first class to pave their streets in a certain way, was held constitutional by this court. Scheer v. Cincinnati, 14 Bull., 87; aff. 15, Bull., 66; Parsons v. Columbus, 50 Ohio St., 460.
    An act punishing the sale of intoxicating liquor within two miles of a place where an agricultural •fair is held is constitutional. State v. Long, 48 Ohio St., 509; Theis v. State, 54 Ohio St., 245.
    The act of sixth of April, 1893 (90 O. L., 143), imposes a penalty for the selling or giving away intoxicating liquors within one and a half miles of the boundary of a United States Soldiers’ Home, and the same penalty for doing the same thing within one mile of the boundary of an Ohio State Soldiers’ Home. Driggs v. The State, 52 Ohio St., 37.
    On the other hand, an act punishing- the sale of intoxicating liquors within two miles of Chippewa Lake was held to be unconstitutional because here there was no classification. State v. Winch, 45 Ohio St., 663.
    An act relating to cities which, at any census had, or may have, a population not less than twenty-seven thousand, and not more than thirty-four thousand, makes a real classification and is therefore constitutional. Costello v. Wyoming, 49 Ohio St., 202; State v. Baker, 55 Ohio St., 1.
    And so, one authorizing cities of the second class,' second grade, to do the same. Siefert v. Weidner, 12 C. C., 1; 5 C. D., 506.
    An act applying only to a county having, at the last census, a population not less than 29,130 and not more than 29,135, is special, because the limits of population are too small to make it a real classification. Fields v. Com. of Highland Co., 36 Ohio St., 476; The P. Ft. W. & C. Ry. Co. v. Martin, 53 Ohio St., 386.
    An act of a general nature applying to a county having, at the census of 1880, a population of 43,788, and containing a city of the second grade, third class, is unconstitutional, because it could never apply to any county but Summit. State ex rel. v. Ellet, 47 Ohio St., 90; State ex rel. v. Mitchell, 31 Ohio St., 592.
    An act is special, and does not create a class, which applies only to cities of the second grade, third class, having at the last federal census a population of 16,512 and no more. State ex rel. v. Anderson, 44 Ohio St., 247.
    An act providing for the election of one councilman at large in cities of .the second class, third grade, having at the eleventh federal census a population of 17,565, is a special act. State ex rel v. Schwab, 49 Ohio St., 229.
    An act authorizing cities of the first class, first grade, to issue bonds to pay deficiencies in the various funds of the municipal departments of such cities, that may exist at the close of the fiscal year ending December 13, 1894, is a special act, for it cannot apply to any city but Cincinnati. Hermann v. Cinti., 9 O. C. C., 357; 6 C. D., 151; 52 O. S., 676.
    An act re-districting cities of the fourth grade, second class, which at any census, may have a population not less than 5,550, and not more than 5,560, is unconstitutional. Kenton v. State ex rel., 55 Ohio St., 59.
    An act applying only to counties which, by a given census had, or by any other census may have, a population of not less than 31,940 nor more than 31,960, or not less than 35,400 nor more than 35,500 is unconstitutional. State ex rel. v. Bargus, 53 Ohio St., 94.
    •So statutes relating to matters malum in se, or to conditions existing equally throughout the state, are he]d not to permit of classification. Ex parte Falla, 42 Ohio St., 638; Commissioners v. Rosche Bros., 50 Ohio St., 103; Cincinnati v. Steinkamp, 54 Ohio St., 284.
    But our friends say that it is improper classification to classify anything but municipalities by population. This is fairly well answered by the cases above cited from Minnesota, New Jersey and Pennsylvania, which lay down the right to classify by population as applicable to all political subdivisions of the state. State ex rel. v. Archibald, 52 Ohio St., 1; Tuttle v. Polk, 92 Ia., 433.
    Such classification as to roads has also been specifically upheld by this court. State ex rel. v. Turnpike Co., 37 Ohio St., 481.
    So an act was held constitutional authorizing cities of the first class, third grade, to borrow money and issue bonds to buy territory and rig’ht of way, sink and buy natural gas wells and gas works and lay pipes and supply the city with natural gas. State ex rel. v. Toledo, 48 Ohio St., 112; Owen v. Sioux City, 91 Ia., 190; Fitzgerald v. New Brunswick, 47 N. J. L., 479.
   By the Court :

The act in question, by its provisions, is restricted to “any county containing a city of the second grade of the first class.” As Cuyahoga county is the only county in this state that contains such a city, it follows that the act is restricted to that county, and might as well have designated that county by name. Fields v. Com missioners of Highland County, 36 Ohio St., 481. The act is, therefore, local and does not have general operation throughout the state.

The subject-matter of the act is public roads, and that subject-matter is of a general nature, and statutes upon subjects of a general nature must have uniform operation throughout the state. Section 26, article 2 of the constitution. Hixson v. Burson, 54 Ohio St., 470; State ex rel. v. Davisi 55 Ohio St., 15. The act is, therefore, unconstitutional and void.

All of the plaintiffs in error signed the petition to the commissioners asking for the widening and improving of said road ; all of them were present with the viewers when they made the survey, and participated in their action; all presented claims for damages growing out of said improvement, and damages were awarded to all but never paid; and all appeared before the county commissioners and participated in the proceedings for making an assessment on the lands abutting on the road or benefited thereby. Some of the plaintiffs in error assisted in procuring the passage of the special act, some of them appealed to the probate court, and some caused a board of equalization to be appointed, and by reason of all the proceedings thus had, costs accrued to the amount of $1,644.08, and the plaintiffs in error were not only seeking to have the entire act declared unconstitutional, but to prevent an assessment upon the abutting and benefited lands to pay these costs so incurred by' reason of the affirmative action taken by them.

The costs having been incurred upon proceedings invoked by them, and actively participated in by them, they are now estopped from defeating an assessment upon the lands for their payment. Tone v. Columbus, 39 Ohio St., 281.

The court finds that nothing has been expended in grading or improving the road, and as parties áre not estopped from questioning the constitutionality of a special act by them procured to be passed, as to such matters as yet remain to be done in the future under the act, it follows that a perpetual injunction should be granted as prayed for, except as to the $1,648.08 costs already incurred, for the payment of which an assessment on the abutting and benefited lands should be awarded.

] Judgment of the circuit court r&oersed and judgment modified.

Minshall, J., dissents as to the first proposition of the syllabus.  