
    John Ryan and the Executors of Nicholas Longworth, deceased, v. Silas W. Hoffman, Auditor, and Robert O. Strong, City Solicitor of the City of Cincinnati.
    1. Under section 537 of the municipal code, which provides that a corporation must pay for lands appropriated for any purpose, within six months after the assessment of compensation is made, or that its rights shall thereupon cease and determine, the time commences running from the date of the judgment or order of the court directing such assessment to be paid, and not from the date of the rendition of the verdict.
    2. Section three of the act of April 16,1874 (71 Ohio L. 80), is not applicable to ordinances providing for the expenditure of money, passed prior to the date of the act, or to ordinances passed subsequent to the date of the act, appropriating money to pay expenditures made under such prior ordinances.
    8. Where lands have been legally and regularly condemned by a city for a street, and the city auditor has been directed by ordinance to issue his ■ warrants on the treasurer to pay therefor upon the receipt of proper vouchers from the city solicitor, whose duty it is to furnish the vouchers, and he refuses to furnish them for the reason that he is of the opinion that the condemnation proceedings were irregular and invalid, he may be compelled by mandamus to do so.
    Motion for peremptory mandamus.
    This is a motion, for the allowance of a mandamus to compel the city solicitor of the city of Cincinnati to deliver to the city auditor proper vouchers, and to compel the auditor to receive the vouchers and issue warrants on the city treasurer, one in favor of Ryan for $4,606.41, and the other in favor of Nicholas Longworth’s executors for $5,693.59, making $10,800, which was the amount of a verdict rendered in the Court of Common Pleas of Hamilton county, in a proceeding to appropriate real property for the extension of Sloo street, in Cincinnati. Ryan was the owner of a leasehold for twenty years in the premises, with privilege of purchase, and the reversionary fee was in the executors of Longworth. The ordinance to condemn,. passed by the council September 6,1872, directed the city solicitor to institute proceedings for the purpose of appropriating the property. Proceedings were accordingly commenced in the Probate Court of that county on February 24, 1873, and a verdict and judgment were rendered March 31, 1873; whereupon Ryan appealed to the Court of Common Pleas. In the latter court, a verdict was rendered June 6, 1874, assessing the value of the property at $10,300, as above mentioned. On March 29, 1875, an ordinance was passed by the council, authorizing the auditor of the city “ to draw his warrant on the city treasurer for the above-named amount, in favor of proper parties, upon receiving proper vouchers therefor from the solicitor.” And on November 16, 1875, the Court of Common Pleas, by consent of parties, heard the evidence, and thereupon ascertained the portion of the verdict to be paid to each of the parties, being the sums for which they desire warrants, as above mentioned.
    The city had caused a four-inch water-main to be laid in Sloo street, through the premises in question, but this did not interfere with Ryan’s occupancy.
    The auditor refused to issue the warrant, notwithstanding funds were in the treasury applicable to its payment; and hence this application for a mandamus.
    J. W. ‡ Gr. B, Okey (with whom were Blackburn 3; Shay, ■and King, Thompson 8? Longworth), for the relators:
    I. The fact that the city auditor is, by the ordinance, only authorized to draw his warrant on the city treasurer for the amount of the verdict, “ upon receiving proper vouchers therefor from the solicitor,” affords no answer to our application for a mandamus, because—•
    1. The ordinance vests no discretion in the city solicitor. His duty is simply to furnish receipts to be signed by Ryan .and the executors of Longworth. Whitwell v. Willard, 1 Met. (Mass.) 216 ; The State v. Hickman, 3 Halsted, 299.
    2. It is admitted by the respondents that the auditor ■“ has at all times refused to receive from said Strong, city •solicitor as aforesaid, the vouchers mentioned in said ordinance.” How could he refuse unless Strong offered to furnish them ? It is not stated anywhere that Strong refused to furnish the vouchers. The propriety of making him a party at all may be questionable, as we only ask that he deliver the voucher to the auditor.
    3. Where, as in this ease, the duty is ministerial, the officer who refuses, whether solicitor or auditor, will be compelled by mandamus to perform it. Smith v. Portage Go., 9 Ohio, 25-28; Burnet v. Portage Go., 12.Ohio, 54; State ex rel. v. Burgoyne, 7 Ohio St. 153; Seney’s Code (2 ed.), sec. 569, and notes. Here the facts are agreed upon, and hence the writ will issue if the ground of refusal to deliver or receive the vouchers, or issue the warrants, be insufficient. “If the reasons assigned for non-performance be insufficient, the writ will be made peremptory.” Tillson v. Putnam Go., 19 Ohio, 415-417; Civil Code, sec. 572.
    II. The proceeding was not void, under section 537 of the municipal code (66 Ohio L. 240), on the ground that the city failed to pay for or take possession of the property within six months after the assessment, because—
    1. That section had its origin in the act of 1867 (S. & S. 894, sec. 323), which was suggested by the remarks of the .court in The State ex rel. v. Cincinnati and 2nd. 22. B. Co., 17 Ohio St.-103-109. However that may be, the provision as to time was evidently inserted for the benefit of the landowner, and hence may be waived with his consent. Observe the language: If the city “ shall fail to pay for or take possession of the same within six months, . . . the right of such corporation to make such appropriation on the terms of the assessment so made, shall cease and determine,” etc. Instances are numerous where, notwithstanding stronger language than is found in that section, the proceeding or act has not been held wholly nugatory. Thus, the statute against fraudulent conveyances provides that they “ shall be deemed utterly void and of no effect,” yet they are held to be entirely valid, except as to creditors and bona fide purchasers. Burgett v. Burgett, 1 Ohio, 469. The purchase by an appraiser, though the statute declares-it shall “ be considered fraudulent and void,” is nevertheless held to be voidable only. Terrill v. Auehauer, 14 Ohio St. 80. And the word “ all ” is sometimes considered in a general, instead of a universal sense. Stone v. Elliott, 11 Ohio St. 258. Here, if the proceeding was susceptible of ratification, the acts of the parties, disclosed in this case, amounted to a ratification.
    2. But six months had not elapsed from the “ appropriation ” before the passage of the ordinance. The time is to be computed, not from the return of the verdict, but from the entry of judgment thereon. Perhaps there is no power in the court to set aside the verdict on the ground of difference with the jury as to the value; yet if the jury or parties should misbehave, the court would certainly interfere. But that is not the test. The provisions of the statute are clear that the six months commence to run from the entry of judgment on the verdict. 66 Ohio L. 145-286, sees. 531, 582, 584, 537. .
    Any other construction of those provisions leads to absurdity. If the verdict is the only matter of importance in such case, how could error in the proceedings be corrected in this court, which can only review cases wherein judgments have been rendered or final orders made ? Again, the verdict was rendered June 6,1874. The city could not then pay either Ryan or Longworth’s executors, for the amount due each had not been found by the jury or ascertained by the court; and, for the same reason, neither Ryan nor the executors could make demand of the city; nor could the city deposit the amount, except by order of court (66 Ohio L. 238, secs. 227, 228), and none was made. Surely it could not have been intended that delay for six months to hear the evidence, or render final judgment or order, or make an order to deposit, should defeat the proceeding.
    Nor does The State ex rel. v. Cincinnati and Indiana Railroad Company, supra, lend support to the respondents. There the company gave notice, before the confirmation of the verdict, that it abandoned the proposed appropriation; the Probate Court refused to enter an order for the payment of the money to the owner; and the company never took possossion of any portion of the land, but located, built, and operated its road elsewhere. Here the city consented to the entry of judgment on the verdict; it passed an ordinance to pay the amount of the verdict, and it has taken partial possession of the property.
    III. It is urged that the act of 1874 (71 Ohio L. 80, sec. 3) is in our road to relief; and this clause is relied on, that “ no such ordinance or order shall take effect until the auditor shall certify to the city council that there is money in the treasury especially set apart to meet such expenditure.” But—
    1. "We may fairly assume that such certificate was furnished. It is agreed “ that at the time of the passage of said ordinance, No. 2099—that is to say, on the 19th day of March, 1875—and at all times during said month of March, and at all times since, there has been and still is money in the treasury of said city, and in the general fund aforesaid, amply sufficient to pay, and applicable to the payment of, said sum of ten thousand three hundred dollars to the plaintiffs herein.”
    It is further agreed that the “ordinance was duly adopted by said common council, the same having been adopted by the board of aldermen on the 12th day of March, 1875, and by the board of councilmen on the 19th day of the same month, pursuant to the proceedings to appropriate.” And it is further agreed that “ on the 20th day of the same month of March, Hon. Gr. W. C. Johnston, mayor of said city, approved said ordinance, and the same has been duly published and recorded, and is now in full force and effect; all of which will more fully appear by the records of said city in the office of its clerk remaining.”
    To this state of facts we may well apply the principle, that “ acts done which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter.” Ward v. Barrows, 2 Ohio St. 241; Coombs v. Lane, 4 Ohio St. 112; Seovern v. State, 6 Ohio St. 288. And, as was held in the same cases, “ facts presumed are as effectually established as facts proved.” Consequently, the conclusion is fairly reached, that the auditor furnished the proper certificate.
    We deny that this is merely technical; but if it is, so is that clause of the act of 1874 (71 Ohio L. 80), when applied to a case where it is admitted that the money is in the treasury applicable to the payment of the claim. “ Technicality is never more appropriately resorted to than to meet and put down technical objections.” Forsythe v. State, 6 Ohio, 19.
    2. The above-mentioned act (71 Ohio L. 80) has no application to this ease. That act was passed April 16,1874. The ordinance declaring the intention to appropriate the property, and directing the solicitor to institute proceed-ings to condemn it, was passed in 1872, and all the proceedings to condemn were had in the Probate Court, and the ■appeal to the Common Pleas was perfected in 1873. The language of the act (sec. 3), and the reason of it, are entirely inapplicable to the ordinance of March, 1875.
    IV. Respondents say that the acts of the parties can not amount to a bargain and sale, because no conveyance has ■'been made by the relators. But here also they are in error. Delivery of possession, upon payment of the money, would -operate as a conveyance and estop the parties, even if the proceedings were defective. Smart v. Portsmouth § C. B. R., 20 N. H..233; Chicago v. Wheeler, 25 111. 478; Fmbury -v. Conner, 3 Comstock, 511; Buell v. Lockport, lb. 197; Huston v. Gin. $■ Z. R. R. Co., 21 Ohio St. 235.
    Respondents insist, however, that if the acts of the parties only amount to a bargain and sale, the adjacent property-owners can not be charged with the cost of the improvement, and consequently the expense must be borne by the city. No doubt that is true; and it is also true that the city must bear the expense, even if this was, as we <elaim, strictly a condemnation, for the preliminary steps to ■charge the property-owners were not taken. But, however that may be, the objection can have no legitimate effect in this case, for no such question is presented.
    
      PL. D. Peck (with whom were Strong and Boone), for respondents :
    As it appears from the motion and agreed statement of facts, the auditor was required by the ordinance to issue his warrant for the money upon the certificate or voucher of the solicitor; and as it is not alleged that the latter has issued any voucher, the auditor can not be required to issue the warrant, unless the solicitor can be required to issue the voucher. The solicitor is the law officer of the corporation, and it is to be presumed that it was intended that he should look into the validity of the proceedings, and be satisfied as to the title, and that his voucher should be given to. satisfy the auditor that the proceedings were correct and the title good. We claim that the true construction of the ■ordinance to appropriate, is that the solicitor should only issue the voucher in case he was satisfied that the title would be good and an assessment could be levied upon the benefited property, -to collect the amount paid for the property. If, then, this was the intention of the council in passing the -ordinance to appropriate, the question of title was intended to rest upon their legal adviser’s opinion, and in case his opinion was adverse to the title, the property was not to be taken. The event upon which the voucher of the solicitor was to issue—to wit, a favorable opinion of the title—not having occurred, he was not bound to issue it, and can not be required to do so.
    The solicitor was right in refusing to issue the voucher, because no title to the property could be acquired under the condemnation proceedings. Section 537 of the municipal code provides, that the right of the corporation shall cease and determine “ six months after the assessment of compensation shall have been made, as above provided.” •Observethe language : “ six months after the assessment;” not .after final order or judgment, but after the assessment.
    
      It is provided by the constitution and the statutes pursuant thereto, of which chapter 47 of the municipal code is one, that the value of lands' appropriated to the public shall be determined by the verdict of a jury. That is the great point, the object toward which all the statutes are directed ; and all the proceedings prescribed by the statute show that the object of all is to secure a verdict. Upon the verdict, the court may (see. 324) enter an “order” as to time and manner of payment, the proportion payable to each, and may require adverse claimants for part of the money to interplead; and (sec. 525) may direct the time and manner of delivering possession of the property condemned. These are all the matters as to which the court may “ order.” They are all formal or collateral matters, and it is obvious that no judgment in any proper sense was intended to be entered. These orders only regulate the time and manner of exercising the right secured by the verdict of the jury. They conferred no additional right upon the corporation. It is clear that no order or judgment, requiring the corporation to take the property or pay the-money, could be entered, and that no such order or judgment could be enforced if entered.
    The case of the State ex rel. Hayes v. C. § I. It. It., 17 Ohio St. 103, settles the question, that where the corporation declines to take the property, it will not be required to do so by mandamus. In this case it is true that the council indicated its willingness to take, by the passage of the-ordinance to appropriate after the last verdict; but it was more than six months after the verdict, and the proceedings had become void by lapse of time, so that no title could be secured to the property, nor any assessment levied upon the abutting property, to pay the cost of the property appropriated. The right to make such an assessment is only given the corporation in case the land was taken by proceedings to appropriate. Municipal Code, sec. 583.
    The assessment could not be sustained in case of a purchase, and to pay the money and take the property after the expiration of the six months, would only be a purchase--of the property. Now the ordinance to condemn provides that the cost of the appropriation shall be assessed upon the property abutting or benefited thereby. The solicitor, then, had not only to look forward to the title, but also to look forward to the assessment. The defects in the title might have been cured by a deed, if any had been tendered, which is not the case ; but the defects with regard to the assessment are incurable, and the corporate treasury would have had to bear the expense instead of the benefited property. On that ground, therefore, in addition to the other, the solicitor was right in declining to issue the voucher.
    The act known as the Worthington law (71 Ohio L. 80, sec. 3) does apply. It requires that the auditor shall certify that there was money in the treasury especially set apart to meet the expenditure. It is agreed that there was money in the treasury applicable to the payment of the plaintiffs, but there was no such certificate as required by the act, nor has there been any such certificate delivered since the passage of the ordinance. The act provides that no ordinance for the expenditure of money shall take effect “ until the auditor of said city shall certify to the city council that there is money in the treasury especially set apart to meet the expenditure.” The certificate is made an essential condition precedent to the taking effect of the ordinance, as the negative words and impex’ative language of the act show. The ordinance never having taken effect, it can not be enforced by mandamus.
   Gilmore, J.

The proceeding out of which the questions in this case arise, was the condemnation of property for the extension of Sloo street from its western terminus to Carr street, in the city of Cincinnati.

The ordinance of condemnation provided that the compensation to the owners of the property taken should be ■assessed upon the property abutting on and benefited by ■the improvement.

The property condemned was held by John Ryan under a lease for twenty years with the privilege of purchase, thereversionary fee being in the executors of Nicholas Long-worth, deceased. On appeal from the Probate Court, there was a verdict in the Court of Common Pleas, on the 6th of June, 1874, assessing the compensation at $10,300. On the 19th of March, 1875, an ordinance was passed by the city council appropriating $10,300 from the general fund to pay for the property condemned, and the city auditor was authorized to draw his warrant on the city treasurer for the amount, in favor of the proper parties, “upon receiving proper vouchers therefor from the solicitor.”

After the rendition of the verdict in the Court of Common Pleas, on the 6th of June, 1874, the cause was regularly continued from term to term until the November term, 1875, when it was affirmed; and the court on full hearing apportioned the assessment between the parties interested, giving to the executors of Longworth $5,693.59, and to Ryan $4,606.41; and adjudged that upon payment of said sums to the parties named, “ the city of Cincinnati shall be forever entitled to all the interest and estates inl- and possession of the property condemned.” It is admitted that the ordinances and proceedings are in all respects in legal form, and regular, except in this, that more than six months elajtsed between the rendition of the verdict and its affirmance, and the final order of the court.

At the time of the passage of the ordinance appropriating the money to the payment of the compensation named, there was, has been, and now is money belonging to the general fund in the treasury, sufficient and applicable to the payment of the sum assessed. After the order made in the Court of Common Pleas, the city solicitor failed to-furnish the vouchers, and the city auditor, on the demand, of the relators, refused, and still refuses, to issue warrants on the treasury to pay the amount found due to them respectively. The relators are ready, able, and willing to deliver possession of the property condemned to the city on receiving payment.

The relators are the parties entitled to the compensation,. and they now move for a peremptory mandamus to compel the city solicitor to furnish the proper vouchers, and the city auditor to issue warrants on the treasurer for the amount to which they are respectively entitled under the finding and order of the Court of Common Pleas.

The respondents resist the motion on the following grounds: First. That the city auditor is only required to issue his warrants on the treasurer, on the vouchers of the city solicitor, and it is not alleged that the latter has furnished the proper vouchers to him. Second. That the city solicitor is the law officer of the corporation, and will not he required to furnish the vouchers, unless he is satisfied that the proceedings are valid and give the city a good title to the property condemned, and will not, therefore, be compelled by mandamus to furnish the vouchers, if, in his opinion, the proceedings are not valid.

In support of the assumed correctness of the solicitor’s opinion that the proceedings are invalid and confer no title upon the city, the following reasons are assigned and relied on:

1. That the right of the corporation ceased and determined “ six months after the assessment of compensation was made,” and 'that the verdict of the jury constitutes the assessment, and the time commenced running from the date of its rendition, and not from the time it was affirmed, and the money ordered to be paid by the cour

2. That the right of the city to assess the expense of the improvement upon adjoining property exists only in cases where the land is appropriated; and owing to the invalidity of the proceedings, if the city takes the land in this case, it will take it by purchase and not by appropriation, and hence the adjoining property can not be assessed to pay for it.

3. That before any ordinance appropriating money can take effect, the auditor must have certified that there was money in the treasury especially set apart to meet the expenditure ; and that no such certificate was issued before or since tbe passage of the ordinance appropriating the money to pay for the land in question.

These objections will be separately noticed. The first rests upon section 587 of the municipal code, which reads as follows: “ Whenever a municipal corporation shall make an appropriation of land for any purpose specified in this •chapter, and shall fail to pay for or take possession of the same for six months after the assessment of compensation shall have been made as above provided, the right of such corporation to make such appropriation on the terms of the assessment so made shall cease and determine; and any lands so appropriated shall be relieved from all incumbrance on account of the proceedings in such case or the resolution of the council making the appropriation; and the judgment or order of the court, directing such assessment to be paid, shall cease to be of any effect, except as to the costs adjudged against the corporation.”

The provisions of this section are evidently intended for the benefit of - the land-owner, preventing, as they do, the land from being hung up in uncertainty for an unreasonable length of time, and a strict compliance with its requirements could be waived by the owner. An acceptance of the money assessed as compensation after the expiration of six months from the date of the assessment, and a delivery of possession, would constitute such a waiver and operate as a ratification of the proceedings.

But aside from this, it seems to us that the respondents take too narrow a view of the effect of the provisions of this section, when construed, as they must be, in connection with the provisions of previous sections on the same subject. Premising that the proceeding to ascertain the compensation due to the owners was properly commenced in the Probate Court, we will ascertain the powers and duties of that court after the rendition of the verdict. These are defined by section 524, which reads as follows: “ So soon as the amount of compensation which may be due to the owners of the property to be taken, or any of them, shall have been ascertained by the jury, the court shall make such order for its payment or deposit as shall be deemed right and proper in respect to the time and place of payment or deposit, or to the persons entitled to receive payment and the proportion payable to each, and to require adverse claimants for any part of the money or property to interplead, so as fully to settle and determine their rights and interests according to equity and justice.”

From, these provisions it is manifest that the rendition of the verdict alone does not constitute the assessment in the sense that this word is used in section 537, unless the verdict is to have an effect in the Court of Common Pleas, on appeal, different from what it had in the Probate Court. That this is not so, and that the verdict is to have the same effect in both courts, appears from the provisions of section 531, which are as follows: “"Where the proceeding was had in the Probate Co.urt, any party interested in the inquiry and assessment may take an appeal to the Court of Common Pleas, and thereupon the same proceedings shall be had as if the application had been originally made in that court.”

By section 532 the right of appeal is predicated upon “ the final order determining the rights of such party ” in the Probate Court; and the prescribed condition of the undertaking on appeal is, “ that the party appealing shall abide by and perform the order, judgment, or decree of the appellate court.” Thus the appeal is from the “ final order ” of the Probate Court, and the condition upon which it is given, is that the appellant shall abide the “final order, judgment, or decree ” of the appellate court.

In view of all these provisions, section 537, on this point, must be construed to mean this: That if the corporation shall fail to pay for or take possession of the land appropriated for six months after the judgment or order of the court directing the assessment to be paid, the right of the corporation to make the appropriation on the terms of the assessment made shall cease.

The corporation was not authorized or required to pay on the rendition of the verdict. There were adverse claimants for the money, whose rights had to be settled and determined by the court, before the city could properly pay over the money, unless the court had seen proper, in its discretion, to order the payment or deposit of the money before the final order was made, which was not done.

Although the verdict was rendered in June, 1874, the court did not determine the rights of the claimants and make a final order directing the payment of the money till November, 1875. Notwithstanding the delay, the final order when entered became binding on the parties, and must remain so until it is reversed or set aside. We therefore hold that the six months would commence running,, not from the rendition of the verdict, but only from the-date of the final order in the Court of Common Pleas. There could be no failure to pay on the part of the city, until there was an opportunity to pay; and six months have not elapsed since the opportunity or right to pay was first given by the final order of the court. The first objection must therefore be disregarded.

2. The second objection is, that even if the city takes and pays for the property condemned, it takes the title by purchase and not by appropriation, and hence can not assess the expense on the adjoining property. Erom what has been before said, it will appear that there is no force in this objection. We think the city will take the title by appropriation ; but the right to assess the expense upon the adjoining property depends upon other provisions of the municipal code, and other proceedings not before us.

8. The remaining objection is, that section three of the act of April 16,1874 (71 Ohio L. 80j, which provides that no ordinance or order for the expenditure of money shall take effect until the city auditor shall certify to the city council that there is money in the treasury especially set apart to meet such expenditure, applies in this case; and that no such certificate was given by the auditor to the-council before or since the passage of the ordinance of March, 1875, appropriating the money to pay for the land, in question.

The effect and operation of this law is misapprehended.. The first clause of the third section is: “ That from the taking effect of this act no ordinance or other'order for the expenditure of money shall he passed by the city council . . . without stating specifically in such ordinance or order the items of expense to be made under it, and no such ordinance or order shall take effect until the auditor of said city shall certify to the city council there is money in the treasury especially set apart to meet such expenditure,” etc.

This law, by its own terms, only operates prospectively. It conditionally prohibits the passage and taking effect of ordinances for the expenditure of money after its passage, and does not apply to ordinances appropriating money to pay expenditures incurred under ordinances in force at the time the law took effect. The ordinance condemning the land in question, is an ordinance for the expenditure of money, but it was passed and took effect in September, 1872, long before the law in question was passed, and therefore it is not affected by it; and the passage of the ordinance of March, 1875, appropriating money to pay for the land condemned under the former ordinance was not in contravention of the third section of the, law. Consequently this objection is of no avail to the respondents.

The result is, that we find that the proceedings condemning the property in question were regular, and will confer a good title therefor upon the city, when paid for and possession taken, which the relators are able and willing to surrender to the city on receiving payment.

Whether the city solicitor was, in this case, unconditionally required to furnish the vouchers or not, we have-thought it better to examine and dispose of the objections made to issuing them, founded, as they were, upon his legal opinion that the proceedings .gave no title to the property condemned, rather than to hold that he had nothing more-than a mere ministerial duty to perform in the premises.

We have found that the objections set up are insufficient, and consequently there remains only a ministerial duty to he performed by the city solicitor, in furnishing the vouchers as required by the ordinance of March, 1875, which is of binding obligation upon him. Under these circumstances, having refused to issue the vouchers, mandamus will lie to compel him to perform the duty. On receiving the vouchers, the duty of issuing the warrants on the treasurer is • a ministerial duty, imposed upon the city auditor by the ordinance last mentioned, and he, in like manner, will be compelled to perform the duty by mandamus.

A peremptory mandamus is awarded, as prayed for by the relators.

McIlvaine, C. J., Welch, White, and Rex, JJ., concurred.  