
    Portius B. Roberts v. Shadford Easton et al.
    
    
      1. Under the statutes providing for street railroads and prohibiting oity councils from permitting their construction without the consent of a majority in interest of the owners of property upon ’the street in which they are to be constructed “ being first had and obtained,” such consent is a prerequisite to the power of the council to grant such permission; and the action of the council in granting such permission is not conclusive, against the property owners on the street, of the fact that the requisite majority have given their assent to the construction of the railroad proposed.
    2. Where a single-track street railroad has been lawfully constructed with the requisite consent of the owners of property on the street, and it is afterward proposed to construct another track on the same street, the consent of any of the property owners to the construction of the first track cannot be counted as an assent to the construction of the second, against those who remonstrate against the added track.
    3. Where a city council grants permission to construct a street railroad . without the consent of the owners of property on the street being obtained, as required by the statute, the construction of the railroad, may be enjoined at the suit of the owners of property on the street in which it is about to be constructed.
    
      Error to the superior court of Cincinnati.
    Shadford Easton, on behalf of himself and others, filed a petition in the superior court of Cincinnati, on the 19th May, 1865, to restrain Roberts from laying a double-track street railroad, in Main street, between Fifth and Liberty streets, in Cincinnati; the plaintiffs being owners of property on the line of that street, between the points named. They admitted that the defendant had a legal grant from the city for the construction of a street raihoad with a single track; but denied his right to lay a second or double track.
    The statute in force relating .to the subject, and under which the questions in this case arise, was the act to provide for and regulate street-railroad companies, passed April 10, 1861 (58 Ohio Laws, 66). The fifth section of that act, the only one material to be noticed, provides as follows:
    
      “ Sec. 5. That hereafter no street railroad shall be constructed or commenced until the consent of the city council or corporate authorities of the city, town, or village, wherein such road is to be constructed, shall have been first obtained; and it shall be competent for the city council, or corporate authorities of any city, town or village, to agree with any street-railroad company, organized in pursuance of this act, or with any individual, or company of individuals, desiring to construct a street railroad in such city, town, or village upon the manner and upon the terms and conditions upon which such corporation, individual, or company of individuals shall construct and operate a street railroad in such city town, or village: Provided, that no grant to occupy any street, lane, or avenue, or public ground in any city of the first class, containing a population exceeding eighty thousand inhabitants, shall be made, except in accordance with sections fifteen and sixteen of an act passed March 8,1860, relating to cities of the first class, having a population exceeding eighty thousand inhabitants.”
    The two sections of the last-named act (57 Ohio Laws, 19), referred to above, are as follows:
    “ Sec. 15. That the said city council shall not hereafter permit to be constructed, in either of the streets or avenues of the said city, a street railroad for the transportation of passengers, without the consent of a majority in interest of the owners of property upon the street or avenue in which said railroad is to be constructed being first had and obtained; and for the purpose of determining what is a majority in interest, reference shall be had to the assessed value of the whole property located upon such street or avenue.
    
      “ Sec. 16. The said city council shall prescribe, by ordinance, tiie manner and the terms and conditions upon which the streets and avenues of said city may be used or occupied by street railroads, and the proper authority to grant permission for such purpose,” etc.
    The original grant by the city council, for a street railroad by Route No. 8, is contained in the ordinance passed August 19,1864. It recites that “ whereas there has been exhibited to the city council the written consent of a majority in interest of the owners of property upon Main street, between Fifth and Orchard streets,” etc., “ that there shall be constructed upon said streets a street railroad, according to the following ordinance. Now, therefore,” etc. It proceeds then to define Route No. 8 for street-passenger railroads, naming the streets through which it shall run, making a circuit for a single-track railroad.
    On the 29th October, 1864, the city entered into the agreement with Roberts for the construction and operation of the road over Route No. 8.
    On May 5th, 1865, the city council passed another supplementary ordinance, in which it is recited as follows:
    
      “ Whereas, it is represented to the city council that a majority in interest of the owners of property are consenting to the use of a double track on the part of said route on Main street, between Fifth and Liberty streets,” and ordains that the contractor of said Route No. 8 be authorized to construct, lay, and use a double track on that part of Main street, “ Provided, that the evidence of the consent of the property owners on such part of said street to the laying and constructing a double track, shall be presented to and approved by the board of city improvements.”
    The board of city improvements, under this ordinance, passed a preamble and resolutions, reciting that it appeared to the board that a majority of property owners in interest on Main street, between Fifth and Liberty streets, had consented to the laying of said double track on said street by the contractor, and declaring the approval of the board of the laying of the same.
    It further appears from the agreed statement of facts, that to constitute a majox-ity in interest of the owners of property required, the consent of the county commissioners of Hamilton county, representing the court-house property, was counted and requisite; that the only consent ever given by them was their resolution of May 21, 1861, passed prior to the passage of the original ordinance of August 19,1861, and recited therein; and that on May 15,1865, prior to the action of the board of city improvements, the individual members of the board of county commissioners signed and presented to the city council and the board of city improvements, in connection with other persons, a remonstrance against the construction of the said double track on Main street, but no order repealing or changing their original resolution of May 21,1861, was made or entered on their records by the county commissioners xxntil after the action of the board of city improvements.
    Upon these facts the court below found the law to be as follows:
    1. That the action of the city council and boai’d of city improvements was and is not conclusive upon the plaintiff; but that he is entitled in law to show as a fact, that a majority in interest of the owners of property on Main street, between the points designated, did not assent to the construction of a double track.
    2. That the assent of the boai'd of county commissioners, which was counted and was necessary to constitute a majority iix interest, was not valid and effectual as an assent to such double track, as against their remonstrance subsequently presented; but was exhausted by the first action of the city council, and was only applicable to the construction of a single track on Main street.
    3. That the plaintiff had such an interest as to entitle him to complain, and that he had a right to the relief sought, which was accordingly granted by an appropriate injunction.
    The defendant below prosecutes his petition in error here to reverse this decree, on the ground that the court below erred in its holdings of the law upon the facts of the case.
    
      W. Y. Gholson for plaintiff in error:
    The merits of the case really turn upon the proper construction of a legislative enactment. The plaintiff in error relied upon two general principles of law, and the court below decided that their application to the case was excluded by the legislative enactment.
    1. The legislative enactment claimed to have this effect is the 15th section of the act of 3d March, 1860 (57 O. L. 16). 'This section is to be interpreted in connection with the 16th ¡section of the same act, and the act of 10th April, 1861 (58 O. L. 66). Under-these acts it is not disputed that the city -council had the power to make the grant to use the street, as ■ claimed by the plaintiff in error; but the question presented .and which it is now proposed, first, to present to this court, is whether the fact to be ascertained before a grant could be ¡made — a consent of a majority in interest of the owners of •property — was to be ascertained by the city council as the proper tribunal to decide upon the evidence showing that fact, or was open to inquiry in the superior court, upon evidence to be submitted to that court. '
    If the city council was the proper tribunal to inquire into that fact, and decide upon the evidence showing its existence, we claimed and now claim that, in the absence of any fraud, ¡its decision as shown by the making of the grant was conclusive. United States v. Arredondo, 6 Peters, 691-729; Matter of Dodd, 27 N. Y. 629-631.
    The section (15) .implies, what is not disputed, that it is the i city council which ¡has power to grant the use of the street, to permit the railroad to be constructed in the street; but the council is not to do this “ without” the consent; the council may do it “ with ” the consent. The implication seems inevitable that the council may inquire whether there has been consent. It is made clear by the conclusion of the section, which must be considered as 'addressed to the city council. This case clearly comes within the principle of construction acted upon in the case of The Commissioners of Knox County v. Nichols, 14 Ohio St. 260-270.
    The same principle acted upon in 14 Ohio St. 270, is stated, and made the ground of decision in Commissioners of Knox County v. Aspinwall, 21 Howard, 539-544.
    The true test of jurisdiction to decide a fact is whether there be power to enter upon the inquiry. It is a fallacy to assume that the fact which has to be decided is that which constitutes jurisdiction. Regina v. Bolton, 1 Q. B. 66-74 (41 E. C. L. 439-443); Queen v. Hickling, 7 Q. B. 880-889 (53 E. C. L.).
    2. A street railroad is not, per se, a private nuisance. There is no finding or evidence showing such a nuisance. If its construction, without authority of law, would be a public nuisance, the plaintiff could not maintain his suit and a right to relief by injunction, without showing some special or peculiar injury. Sargent v. O. & M. R. R. Co., 1 Handy, 52; Squire v. Campbell, 13 Eng. Ch. R. 481-2; Lansing v. Smith, 8 Cowen, 151-168; People v. Kerr, 27 N. Y. R. 191-193; New Albany and Salem R. R. Co. v. O'Daley, 12 Ind. 551; Lexington and O. R. R. v. Applegate et al., 8 Dana, 289.
    It is not understood that this general principle was disputed, but the decision below proceeded upon the idea that the statute conferred upon the owners of .property a right or interest in the streets, which they would not otherwise possess, or gave a right of action to individuals, which individuals did not before have.
    We have not heard it stated, and cannot say upon what language of the statute this idea is predicated. It seems to us an extraordinary and to some extent a dangerous doctrine. Where a city council is acting illegally, the citizens are not without redress. . It may be that the making an illegal grant of a right to the streets would entitle one citizen in behalf of himself and others to maintain a suit. But this is not such a caso; the right to sue is predicated upon rights of property, and not upon any right as a citizen. It is not stated that the plaintiff is a citizen of Cincinnati. Indeed, we may say it is well known that he is not. His sole claim is and must be as the owner of a lot on Main street, and as such owner we confidently claim he cannot maintain this action.
    
      8. da 8. B. Matthews for defendants in error:
    The propositions on which we rely to justify and support the judgment below are these:
    1. That by the express terms of the 15th section of the act of March 3,1860 (57 Ohio Laws, 19), the consent of a majority in interest of the owners of property upon the street or avenue in which it is proposed to construct a street railroad is a condition precedent, without which there arises no power in the city council to give the necessary permission, and constitutes one of that class of cases in which, being a fact of jurisdiction, although it is assumed to exist whenever the action is taken, is always open to question by a judicial proceeding. This, we argue:
    
      First. Prom the purview of the statute. It is an act expressly designed to limit and restrain the exercise of the powers of the city authorities, and to prevent the abuse of corporate power by them.
    
      Second. The analogy of other similar statutes of the State prescribing the cases and the manner in which city councils may deal with the public streets, so as to affect the rights and interests of those owning adjacent property abutting on them, furnishes, according to repeated adjudications, the rule for which we contend. ¥e refer particularly to those statutory provisions providing for the improvement of streets by grading, paving, etc., and assessing the expense thereof upon the owners of abutting property.
    2, We claimed that the assent of the county commissioners ought never to have been counted at all, to ascertain the majority in interest, whose assent is required.
    The 15th section of the act before referred to declares that, “for the purpose of determining what is a majority in interest, reference shall be had to the assessed value of the whole property located upon such street or avenue.” This confines tlie inquiry to owners of private property, for none other has an assessed value.
    3. But if the court-house property might be counted, then we insist that the court below was right in deciding that the assent of the county commissioners originally given and acted on by the city council, as the basis of the grant for a singleiraoh railroad, could not properly be used afterward, and particularly in the face of the expressed remonstrance of the commissioners, as an assent to the double traeh.
    
    4 The plaintiff had a legal interest in the relief sought. He sued on behalf of himself and others, claiming to be a majority of the owners of property interested, whose assent was essential to the legality of the proceeding.
    The statute which made that assent necessary recognizes, if it does not confer, their legal right to interpose, when it is attempted to proceed without their assent.
    The present case does not fall within the principle applied in the case of the Commissioners of Knox County v. Nichols, 14 Ohio St. 260, 290
    The case of Treadwell v. The Commissioners of Hancock County (11 Ohio St. 183; S. C., 12 Ohio St. 596) seems to us to furnish a rule of decision better entitled to application to the facts and circumstances of the present. See also the case of Knox County v. Aspinwall, 21 Howard, 544-5.
    The principle of estoppel was not allowed by this court to prevail in the similar case of Hopple v. Brown Township, 13 Ohio St. 311.
    An authority directly in point, to which we refer as closely analogous to the present, is Swift v. Williamsburg, 24 Barb. 427.
    The presumption that a public body has acted legally, while it applies to a municipal authority, nevertheless has a imitation. See Cooley’s Const. Lim. 208-9.
   Hat, J.

The first question to be considered is, whether the action of the city authorities, in permitting a double-track street railroad to be laid, is conclusive of the fact, that a majority in interest of the owners of property on the street consented to the construction of a double track.

The statute expressly prohibits the city authorities from permitting a street railroad to be constructed without such consent; it was, therefore, a condition precedent to the power of the city to grant the requisite permission to lay the track in controversy. The evident object of the act is, to protect the owners of property, on the streets of cities therein referred to, from the exercise of an arbitrary power, on the part of the city authorities, in permitting the streets to be used for street railroads. A construction inconsistent with this obvious design of the statute would defeat the very purpose of its enactment.

If the action of the city authorities is regarded as a conclusive and unquestionable determination of the facts requisite to the legality of their action, then the disabilities imposed by the statute will be removed by construction, and the power sought to be restrained is practically unlimited.

The power of the city authorities to act in the premises does not depend upon something to be done or determined by them, but upon a condition required by the statute. Nor is there anything in the act that implies that they are authorized to determine conclusively by their own action that the prerequisite consent has been obtained, upon which they have the power to act. They cannot thus defeat the lights secured by law to the owners of property on a street proposed to be occupied for a street railroad.

This case is plainly distinguishable from a class of cases where the rights of third parties intervene. Here the proceeding is direct, and not collateral. It was begun before the authority granted to construct the double track was exercised, and for the very purpose of preventing its execution. The rights and interests of third ■ parties are not involved. The permission to construct a new track was sought by Roberts (the party enjoined by the court below), and for his own benefit. It is clearly inferrable from the record, that he took upon himself to procure the requisite consent of the property owners on the street, and was, therefore, fully advised of the facts, and knew that the authority obtained by him was in violation of the statute. At all events, he-stood in such a relation to the transaction, that he could gain nothing by the action of the city authorities in his favor, without first having secured the performance of the condition precedent to the power of the authorities to act in his behalf. The provisions of the statute under which they acted were public. Both parties had equal notice of the facts upon which they were acting; both of them, therefore, are equally affected by the disabilities imposed by the law, by which both parties were equally bound.

We think, therefore, that the action of the city authorities was not conclusive of the fact of the requisite consent of the property owners to the construction of the street railroad, or double track, in question.

The next inquiry relates to the validity of the assent of the board of county commissioners to the construction of the proposed street railroad. That consent was necessary to constitute a majority in interest, and it related only to the courthouse property belonging to the county of Hamilton.' Eor aught that appears, all this property was of that public character which the statute exempts from taxation, and had no “ assessed value.” If so, it could not properly be counted to make a majority in interest; for the statute declares that, “for the purpose of determining what is a majority in interest, reference shall be had to the assessed value of the whole property located upon such street or avenue.”

But however this may be, the additional track was, in fact, in the nature of an original enterprise, requiring the consent of the property owners to authorize its construction, and it was so treated by the city authorities and all interested in the project. The question, therefore, to be determined by the authorities was, whether at that time (May 19,1865), a majority in interest were then assenting to a double-trade, not, whether a year previous they had assented to a single-trade railroad. They were separate and independent transactions, and, in the meantime, others may have become property owners on the street. The original assent, therefore, merged in the completed action of the city authorities upon it, in relation to the single-track road in 1864. The subsequent action in 1865 contemplated a renewal, or at least a continuing assent. But the one was refused, and the other negatived. We, therefore, see no error in the holding of the court below on this point of the case.

The remaining question relates to the right of the plaintiff below to bring his suit, and to the relief sought thereby. He sued on behalf of himself and others, claiming to be a majority of the owners of property interested, whose assent was essential to the legality of the proceedings complained of. The action was not based upon the statutory right of a citizen to restrain the city authorities from an abuse of their powers; nor exclusively on the ■ idea that the proposed construction was a public nuisance, that worked some special .injury to the plaintiffs. But the legislature, in forbidding the authorities having the control of the streets to permit them to be used for a street railroad, without the assent of the persons owning property thereon, recognizes the interest of such owners in such streets, and thus, at least, recognizes their right to interpose, when it is attempted to proceed without their assent. For, without such right of interposition, the statutory provision for their protection would be nugatory. We cannot regard the act as a vain thing, and are constrained to construe it as having vitality, and, therefore, clearly implying the right in those for whose benefit it was enacted to enforce its provisions bjr invoking the only completely effective remedy applicable to the case ; for the proceeding by injunction is not only the appropriate, but perhaps the only remedy.

We are of opinion, then, that there was no error in the findings and holdings of the court below. The judgment and decree of that court must, therefore, be affirmed.

Bbinkeri-ioff, O.J, and Scott, Welch, and White, JJ., concurred.  