
    Springer v. Avondale.
    ,1. "Where, on the trial of an action to enforce an assessment, the facts are found by the court, at the request of one of the parties, under section 280 of the civil code of 1853, an order for the sale of the property assessed is erroneous, unless the facts found are sufficient in law to warrant the judgment.
    ■2. In determining whether a parcel of real estate is “ land which is in bulk,” within the meaning of section 542 of the municipal code of 1869, r'egard must be had, not merely to a recorded plat of the municipal corporation, but the size of lots, in general, in such corporation; and if it is determined that the tract is land in bulk, the assessment, though by the frontage, must be made in accordance with that section as construed in Cincinnati v. Oliver, 31 Ohio St. 371.
    Error to the District Court of Hamilton county.
    October 28, 1874, the village of Avondale commenced an .action in the Court of Common Pleas of Hamilton county against Reuben Springei’, Patrick O’Donnell, and the United Colored Amei’iean Association. The petition is, in sub,stance, as follows: Avondale is an incorporated village, ■•having at the last federal census a population less in numher than four thousand, situate in Hamilton county,-which contains a city of the first class.
    May 17,1873, the council of the village declared by resolution that it was necessary to improve Clinton street in that village, and that the expense of the improvement should be assessed per front foot upon the property abutting on the street, and certified to the contractor in payment of the work.
    July 24, 1873, the council passed an ordinance providing for the improvement; the work was performed by William-Holmes, under a contract with the village made August 7,. 1873 ; on July 2,1874, the work was accepted by the village engineer and approved by the council; on the same day the council assessed a tax of one dollar and ninety-three cents on each foot front of the several lots of land bordering and abutting on Clinton street, to pay the costs and expenses of the improvement; and the assessment was accepted by Holmes, and the amounts payable on account of the same, with interest and penalty, are due to him.
    The lot of Springer, in which O’Donnell claims an interest, and the lot of the United Colored American Association, known as the cemetery lot, are then described in the petition; it is alleged that the amount assessed against the lots respectively, is $467.71, together with interest from July 2, 1874, and five per cent, penalty; and the village,, suing for the use of Holmes, asks that the lots be sold to pay the assessment.
    The defendants answered, in substance:
    1. The improvement did not receive the previous assent of a majority of the owners to be charged.
    2. The tracts described in the petition are in bulk, and the sum assessed on each tract exceeds trventy-five per cent, of the value thereof to the usual depth of lots in the village.
    The allegations of the answer are denied in the reply.
    After judgment had been rendered in the court of common pleas, the cause was appealed to the district court, where, at the request of the defendants below, the facts and the law were found separately by the court, in substance, as follows: The statements in the petition are true, except as hereinafter specifically found. There was informality in the proceedings of the village in this, that it did not cause the advertisements for proposals to do the work to be advertised on the same day of the week for four consecutive weeks prior to opening the bids. But the true value of the work was the price agreed upon in the contract, and the amount fixed in the assessment. Expenses have been incurred amounting to $467.71, which sum is chargeable against the Springer lot; and expenses to the same amount have been incurred, which are chargeable^ against the cemetery lot.”
    In 1845, in proceedings in the Court of Common Pleas of Hamilton county, to pay debts, Jonathan Bartlett, as administrator of Jonathan Dayton, subdivided the premises ordered to be sold into lots, acknowledged a plat thereof, which plat was properly witnessed, and caused the same to be recorded in the office of.the recorder of that county. The plat was designated at its head, “ plat of house-lots at Clinton, on the Lebanon turnpike, three miles from Cincinnati, of lots three and four, on plat of partition between the heirs of Jonathan Davis and others, in section nine, township three, fractional range two, Miami purchase, by Jonathan Bartlett, administrator of Jonathan Dayton.” The lots were designated by letters from A to M on the plat, and Clinton street was laid out on the plat and dedicated to public use, and the lots fronted on each side thereof. The cemetery lot is marked I on the plat, containing three and three-tenths acres, and being 3.66-| chains front, and 10.37 chains deep on the west line, and 8.51 chains deep on the east line. The Springer lot is marked J on the plat, and of the same front as the other and adjoining lot on the east line, being 8.32 chains deep, containing three and fifty-six hundredths acres. The lots on the opposite side of Clinton street were laid out seven chains deep.
    Samuel Cloon made a new subdivision of the property covering the Dayton estate plat, together with the other land, in 1852, but did not change the lines of the Springer lot or the cemetery lot. He laid out the lots on the opposite side of the street two hundred feet deep. The plat was properly attested, acknowledged, and recorded. Other .streets and lots were laid out on the plat.
    Tbe real estate assessor returned the cemetery lot as three and one-half acres in northeast quarter section 9, township 3, fractional range 1, Miami jrarchase, and the Springer tract as lot 58, in Cloon’s subdivision of Clinton. Clinton is the only street the tracts abut upon. The average depth of lots in the Cloon subdivision, on the adjoining cross streets in the neighborhood, as well as on the opposite side of Clinton street, is two hundred feet. The Western Railroad subdivision adjoins this property on the south, and its lots range from two hundred and twenty to four hundred and sixty-six feet in depth.
    The assessed value of the cemetery lot is $2,960, and of the Springer lot $2,830, and the proportionate part of the cemetery lot, running back a depth of two hundred feet, is $1,207, and of the Springer lot, $1,630.
    The assessment sued for was made by the village council by assessing the expense of the improvement in proportion to the foot front of the lots bounding and abutting on Clinton street, and not according to the value thereof as assessed for taxation.
    The court rendered judgment in favor of the plaintiff below for the amounts so found due, with interest, but without penalty, and found that Holmes, the contractor, had a lien on the tracts to secure the payment of the amounts.
    A petition was filed in this court, by the defendants below, on leave, so reverse the judgment of the district court.
    
      Collins & Herron, for plaintiffs in error.
    
      Stallo & Kittredge, and Goss & Peek, for defendants in error.
   Okey, J.

Where a finding of facts under section 280 of the civil code (Rev. Stats., § 5205), fairly admits of two constructions, one of which calls for the- affirmance, and' the other the reversal of the judgment, the finding should receive that construction which will sustain the judgment. Jack v. Hudnall, 25 Ohio St. 225. But there is a presumption that no evidence was offered from which any other material fact could be found than those set forth in such finding; and where, as in this case, the record does not contain the evidence, and the finding is within the issue, that presumption is, on error, generally conclusive. As the mere rendition of judgment may be a sufficient statement of the conclusion of law (Levi v. Daniels, 22 Ohio St. 38), any other view than the one stated would lead to this-absurd result, that such finding of fact and conclusion of law could afford no ground of reversal, unless the evidence be incorporated in the record. This case, then, must be determined from such statements in the pleadings as stand admitted, and from the finding of facts.

The plat of lands, embracing the tracts now sought to-be sold, prepared in 1845, by or under the direction of Jonathan Bartlett, administrator of Jonathan Dayton, was made with reference to the sale of a portion of the lands of the decedent to pay debts. This was doubtless done under section 132 of the administration act. 1 Curwen, 735. Bartlett was not the owner of the land, nor the agent of the owner, and hence that was not a town plat executed and recorded in pursuance of the act then in force relating to that subject. 3 Curwen, 2465. Cloon’s plat, made in 1852, did not include the cemetery tract, but did embrace the Springer tract, which, without subdivision, was designated on the plat as number 58. Whether Cloon was then the owner of the Springer tract does not directly appear, nor is any reason given why it was not subdivided; but assuming the ownership to have been then in Cloon, and that sufficient reasons existed for leaving the lot as an entire tract, it must be remembered that it contained more than three and one-half acres, fronting on Clinton street and extending therefrom nearly five hundred and fifty feet. Lots on the opposite side of the street, and others in the village near the Springer lot, were only two hundred feet in depth; and, indeed, for aught that appears in the record, there may have been lots on each side of the tracts in question which-would fairly furnish a standard for the assessments of those-tracts. Council, in any view, would have had no difficulty in resorting to section 542 of the municipal code of 1869.

In determining whether a particular parcel of real estaféis “ land which is in bulk,” within the meaning of section 542, regard must be had, not merely to a recorded plat of the town, but to the size of lots generally in the municipal' corporation. If the lots in a particular village contain, as a general rule, three and one-half acres, a lot of that size can not be regarded, in that village, as land in bulk; but the-holding should be different with respect to a lot of that size in a village where the usual size of lots is one acre. In-other words, the phrase is relative in its character.

Where it is determined that the tract is “ land which is-in bulk,” the assessment must be made according to section 542, as construed in Cincinnati v. Oliver, 31 Ohio St. 371. The cemetery lot is clearly “ in bulk,” within the meaning of that section, and so we must regard the Springer lot, which is larger. And as the council has taken no step to-make an assessment under that section, the assessment can not be sustained. It clearly appears that the assessment extended over the whole of both tracts. Formerly this-would have rendered the assessment void, but under the-curative provisions of our statutes, such result does not necessarily follow.

It is contended, furthermore, that the assessment was-made under section 543 of the municipal code, as amended. March 30, 1874 (71 Ohio L. 45), and that this was erroneous for the reason that the contract had then been let, and for the further reason that the proviso giving power to villages in Hamilton county, in making special assessments,, to have regard to the value “after such improvement is made,” is in conflict with the constitution, article 2, § 26, which requires that, “ all laws of a general nature shall have a uniform operation throughout the state.” But there is another constitutional question which may be involved in this case, not only with respect to the above-mentioned amendment of 1874, but also as to section 540 of the municipal code, as amended March 12,1873 (70 Ohio L. 63). That question is, whether the exceptions or clauses which are claimed to take certain villages, including Avondale, out of the general provisions as to assessments in villages, -are not special provisions granting corporate power, and hence in conflict with section 1 of article 13 of the constitution. See The State v. Mitchell, 31 Ohio St. 592. As the question has not been argued we are unwilling to decide it. But we would be unwilling to determine the constitutional question argued without deciding other constitutional questions presented in the record, unless the decision of the question argued should be deemed essential to a determination of the case. We find, however, that this case may be disposed of without, at present, entering upon an examination of the constitutional questions. Looking to the finding of facts, we are unable to say, that, even if the assessment was made according to the value “ as assessed for taxation,” either under the amendment of 1874, above mentioned, or under section 543, as amended in 1871 (68 Ohio L. 125), the tracts, or either of them, could legally bear the assessment, limited, as it must be, under section 542, as to territory; nor does it appear they could bear such assessment, even if regard be had to the value after the improvement was made. If free from constitutional objection, the case no doubt is a proper one for a resort to the curative provisions of our statutes, but the finding does not contain facts sufficient to justify a judgment under those provisions. To justify a special assessment the right to levy it must be made to appear (Sharp v. Spier, Sharp v. Johnson, 4 Hill, N. Y. 76, 92), and here the requisxte facts do not appear.

Judgment reversed.  