
    Jaeger et al. v. Burr, Administrator, Etc.
    1. Where the cost of a street improvement is required to be assessed upon the abutting property hi proportion to frontage, the rate of assessment must be uniform upon all the property assessed.
    2. A petition to collect an invalid assessment is nevertheless good, under section 550 of the municipal code, where it appears that expense has been incurred in making the improvement which is properly assessable upon the property sought to be charged with the assessment.
    3. The irregularities and defects provided for in section 550, of the municipal code, relate to such as are attributable to the conduct of the municipal authorities therein named.
    Error to the Court of Common Pleas of Franklin County. Reserved in the District Court.
    The original petition was filed to enforce the collection of an assessment made for the improvement of Third street, in the city of Columbus, between Kossuth street and Reinhard avenue.
    The ordinance directing the improvement to he made, is as follows:
    “ An ordinance to grade and pave the unpaved sidewalks, "gutters and crossings, and grade and gravel the roadway on Third street, from Kossuth street to Reinhard avenue.
    
      “ Suction 1. Be it ordained by the City Council of the City of Columbus (two-thirds of all the members concurring), that the unpaved sidewalks, gutters and crossings be graded and paved, and the roadway be graded and graveled on Third ■Street, from Kossuth Street to Reinhard Avenue, in accordance with a plat thereof on file in the office of City Clerk.
    “ Section 2. That all damages, cost and expenses arising from the foregoing improvement, shall be assessed and levied upon the several lots fronting or abutting thereon in proportion to the feet front.
    “ Passed May 17th, 1869.”
    On June 22, 1809, a contract was entered into between the city and John (4. Bickel, the plaintiffs intestate, for doing the work. The contract contained this provision: “Under the head of grading shall be included all excavations or embankments in any way connected with or incident to the completion of the work herein contracted for. If there is more filling than cutting, the filling only to be paid for; if more •cutting than filling, the cutting only to be paid for.”
    The contract having been performed by the contractor, the following ordinance was passed on November 20, 1871, assessing the cost upon the abutting property :
    “An Ordinance
    ■“ To assess a special tax upon the real estate bounding Third Street from Kossuth Street to Reinhard Avenue.
    “ Section 1. Beit ordained by the City Govmoilofth-e City of Columbus, that the sum of three dollars twenty-one cents and ■eight and one-tenth mills be. and the same is hereby levied and assessed upon each foot front of the several lots of land bounding or abutting upon Third Street, from Kossuth street to Reinhard avenue, with a credit of two dollars sixteen cents and two and one-tentli mills to each foot front of lots Nos. 65, 66, 67, 68, 69, 70, 71, 72, 88, 89, 90, 91, 92, 93, 94, 95, as the same are designated upon the plat of the civil engineer, on.file in the office of the city clerk, for the cost of the expense of grading and paving the sidewalks, gutters and crossings, and grading and graveling the roadway along the same, according •to the estimate of the city civil engineer.
    
      “ Sec. 2. That the owners of the several lots of land upon, which the foregoing assessment is made, shall pay the amounts of money by them severally due in that behalf, to John G-. Biekel, within twenty days from the date of this ordinance, or be subject to the interest and penalty allowed upon the same-by law.”
    The prayer of the petition was that the court should find the amount due to the plaintiff as administrator of Biekel; and. that, if it should be of opinion that the assessment was valid, that judgment should be rendered charging the several lots with -the amounts assessed; but that if the assessment was found to be invalid, and that the amounts due the plaintiff were not a lien on the several lots, judgment should 6e rendered against the city for said amounts, and the prayer was also for general relief.
    Part of the defendants, Herman W. Jaeger, Doratha Ambos,. Abel Hildreth, and Christian Jaeger, demurred to the petition,, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer having been overruled, they filed an answer, in which they set uj), among other matters of defense, the following:
    “ First, That said credit allowed in said ordinance, was not for or in consideration of any work done by said Biekel, under or by virtue of said contract with said city, or of any contract with said city.
    “Second, That said assessment for and on behalf of said Biekel for the work done by him under and in pursuance of" his said contract is unequal in this : that the lots of these defendants are charged three dollars twenty-one cents and eight mills per foot on said street, and the other lots are charged one-dollar five cents and six mills per foot on said street, for said work so done by said Biekel.”
    The plaintiff filed a reply, a demurrer to which having been, overruled, the cause was submitted to the court for trial.
    It appeared on the trial, that the distance from Kossuth street to Reinhard avenue, on Third street, was 966 feet; and that the distance from Kossuth street to Schiller street,, an intermediate cross street, was 590 feet; that the north part' of the street improved, that between Kossuth and Schiller streets, required filling, and the south part required cutting. The original estimate of the cost of the improvement reported to the council, before the improvement was ordered, was two dollars and forty-eight cents per front foot; and this estimate, as shown by the testimony, was sufficient to have paid for the work, if it had been done under the contract.
    But after the improvement had been ordered, and before the contract with Bickel, most of the work north of Schiller street liad been done by the lot-owners whose lots abutted on that part of the street. The material from the cutting on the south part of the improvement was suitable for the filling on the north part; but as the filling by the lot-owners on the north part was independent of the work done by the con. tractor on the south part, the cost- of the work was increased, the material from the cutting not being used for the filling. Charging both cutting and filling makes the difference between two dollars and forty-eight cents, the estimated cost per front foot, and three dollars and twenty-one cents and eight and one-tentli mills, assessed against the plaintiffs in error.
    The credits provided for in the ordinance making the assessment consist of allowances made the lot-owners between Kossuth and Schiller streets, for work done by them before the making of the contract with Bickel.
    The court found the assessments valid, and rendered ’judgments accordingly for the full amount assessed.
    The plaintiffs in error filed a petition in error in the district 'court to reverse the judgments rendered against them respectively ; and the district court reserved the case for decision by this court/
    
      James L. Bates, for plaintiffs in error.
    
      Lorenzo English and Charles E. Burr, for defendant in error.
   White, J.

The statute in force at the time this improve- ' ment was ordered, required the assessment of its cost upon the abutting property to be either in proportion to the feet front, or to tke value of suck property as assessed for taxation, as the corporation in each case might determine. S. & 0. 3 501, § 26 ; Id. 1505, § 30.

The ordinance in this case, directing the improvement to be made, prescribed that the cost and expenses of the improvement should “be assessed and levied upon the several lots fronting and abutting thereon, in proportion to the feet front.”

The assessment sought to be enforced in this case was made in violation of this ordinance and of the statute. The assessment was not levied upon the abutting property in proportion to the feet front. The effect of the ordinance levying the assessment was to charge the 'abutting property, north of Schiller street, at the rate of one dollar live cents and six mills per front foot, and that south of Schiller street at the rate of three dollars twenty-oue cents and eight and one-tenth mills per front foot.

For whatever sum the assessment was made, it ought to have been levied at a uniform rate upon all of the property abutting on the improvement.

The court, therefore, erred in treating the assessing ordinance as valid, and in giving it effect.

It is claimed on behalf of the plaintiffs in error, that the court erred ,in overruling the demurrer to the petition. In view of section 550 of the municipal code of 3869, and of the character of the petition, we do not think so. That section provides that, “ If in any such action it shall appear, that by. reason of any irregularity or defect, whether in the proceedings of the board of improvements or of the council, or of any other officer of the corporation, or in the plans or estimates, the assessment has not been properly made against any defendant, or upon any lot or parcel of land sought to be charged, the court may, nevertheless, on satisfactory proof .that expense has been incurred, which is a proper charge against such defendant, or the lot or parcel of land in question, render judgment for the amount properly chargeable against such defendant, or on such lot of land.” ...

Notwithstanding the invalidity of the assessment as made, the petition showed that expense had been incurred, which was a proper charge against the defendants and the abutting property. The petition, therefore, was sufficient to authorize an inquiry as to the amount thus chargeable.

Whether the work done by the owners of lots north of Schiller street was attributable to any irregularity on the part of the council, or of any officer of the corporation, does not appear from the record.

Rut if such should be found to be the fact, the irregularity could not have the effect of increasing the burden of the other lot owners, beyond what it would have been if the entire work had been performed under the contract, and the cost thereof legally assessed.

The judgments against the plaintiffs in error are reversed, and the cause is remanded to the court of common pleas, to ascertain and determine the several amounts properly chargeable against them, under section 550 of the code, above referred to, and for such further proceedings against the city, or otherwise, as may be authorized by law.  