
    ASSESSMENT FOR COUNTY DITCH PARTLY WITHIN VILLAGE.
    Circuit Court of Wood County.
    Benjamin F. McCaslin v. Village of Perrysburg.
    
    Decided, April 27, 1907.
    
      Ditches and Drains — Improvements of, where the Ditch is Partly Within a Village — Individual Tax-payer in Unincorporated Village having no Solicitor — Gan not Sue to Enjoin Misapplication of County Funds — Constitutional Law — Notice to Property Owner —Appeal—Sections ITfS, J/jSS and 4W.
    
    1. An individual tax-payer of an unincorporated village having no solicitor can not, under Revised Statutes 1778, which provides for suit by a tax-payer on behalf of municipality, bring action in his own name solely on behalf of the municipality and against the county commissioners to restrain them from proceeding under provisions for the improvement of a county ditch lying partly within the limits of a municipality.
    2. Sections 4483 and 4484, providing, procedure for the petitioning by a municipality, through its mayor, for the improvement of a county ditch lying partly within the municipal limits, is not unconstitutional for failure to provide for notice to property owners, or for appeal, or for a jury, inasmuch as these sections are to be taken as part of the entire chapter applying to ditches wherein provisions are made for such matters.
    Wildman, J.; Parker, J., and Haynes, J., concur.
    Appeal from tbe Common Pleas Court of Wood County.
    
      
      • Affirming McCaslin v. Perrysburg, 6 N. P.-N. S , 48.
    
   The case of McCaslin, on behalf of the village of Perrysburg against the village of Perrysburg, Wood county, Ohio, and others is an action on appeal from the court of common pleas, and it involves the power of a citizen and tax-payer in an incorporated village to restrain proceedings by the officials of a county acting under the provisions of Rev. Stat., 4483, 4484, in the improving of a county ditch, a part of which lies within the territory of an incorporated village.

Proceedings had been taken under Rev. Stat., 4483, and the mayor of the village had presented a petition signed by him officially and with bond to the county commissioners for the establishment of the improvement, and the petition recites in detail the action being taken thereunder by the county commissioners. A demurrer is filed by the county commissioners to this petition, upon the ground that the petition does not state facts constituting a cause of action.

The plaintiff seems to act under Rev. Stat., 1778 (1536-668), which section provides that upon the failure of the solicitor of any municipality to take certain action when requested in the way of instituting suit for the protection of the municipality, a tax-payer may act and may institute the suit, provided that no such suit or proceeding shall be entertained by any court until such request shall have been first made in writing, and provided further that no such suit or proceeding shall be entertained by any court until such tax-payer upon motion of the solicitor or corporation counsel shall have given security for the costs of the proceeding.

In this case it is not alleged that any request was made of the solicitor, but instead thereof it is alleged that the village has no solicitor. The petition does not ask to enjoin the municipality or any of its officers from doing any act; the petition is directed solely at the county authorities — the county commissioners and other officers of the county; and it seeks to prevent the carrying out of the proposed plan for the improvement, because, as claimed, a general system of sewage has already been established by the municipal authorities and the attempt made by the county commissioners is useless, will entail great expenses upon the tax-payers and the municipality without any corresponding benefit. The plaintiff sues, however, not in his own behalf as a tax-payer personally, but in behalf of the municipality, and upon the assumed right to do so because of there being no solicitor to take action.

Revised Statutes 4483, 4484 provide the procedure for the petitioning by a municipality thrqugh its mayor for the establishment of such an improvement, and the action of the county commissioners in accordance with such petition. It is insisted by the petitioner here that these two sections last cited are unconstitutional and invalid in that they provide no means for the protection of property owners by notifying them of the proceedings; no time and place for presentation of claims for damages; no provision for appeal or petition in error, and no provision for jury, and for- other reasons stated. The court of common pleas, to whom this same demurrer and petition were presented for consideration, sustained the demurrer and in the consideration thereof rendered an opinion which we have read with interest, and we find that it so clearly states the position at which we had already arrived in considering the oral and written argument and in the examination of the authorities cited, that we do not care to enter into any elaborate discussion of the questions involved. We think that the trial judge in the court below in passing upon the demurrer has stated very ably and correctly the principles which govern the issues presented in this demurrer. The question is a very serious one, at least as to whether the plaintiff has any right at all to sue in behalf of an incorporated village, notwithstanding the fact that there is no solicitor whose duty it would be first so to do. We think that in any event the power of the citizen to act in behalf of the corporation can rise no higher than what would be the power of the solicitor, if there were one; and the petition as presented to us we think is not such a petition as is contemplated by the section to which I have referred authorizing a citizen to act in lieu of the solicitor, or by the other section authorizing the solicitor to sue for the village. We think also, as held by the court of common pleas, that Rev. Sta-t. 4483 and 4484 are not designed to be the complete procedure of the county commissioners, but that they are to be taken as a pare of the entire Chap. 1 of Title 6 applying to county ditches, and for this reason that sufficient powers are given to the county commissioners to protect, under the forms and provisions of other sections of the chapter, the rights of citizens. We think that the statute is not invalid for the reasons urged by counsel for plaintiff or any other reasons that occur to us.

In the case of Pleasant Hill v. Commissioners, 71 Ohio St., 133, the Supreme Court having these sections before it, recognized, by implication at least, their validity, so far as any constitutional questions are concerned; and while this might not be a conclusive determination of the question of constitutionality, still the fact that the matter is so treated hy the Supreme Court is not to be overlooked.

F. E. Bowers, for plaintiff.

J. E. Ladd, for defendant.

It may be remarked before completing our consideration of the case, that some analogy to the procedure adopted here under Rev. Stat. 4483 is to be found in Rev. Stat. 4450, wherein provision is made for an application for a ditch improvement to the county commissioners, to be signed not only by the individual owners of the lots and lands which will be drained or benefited thereby, but also by the street commissioner or supervisor of the road district in which the same is to be constructed, or the trustees of any original surveyed township owning land granted by Congress for the support of common schools; or the infirmary directors of any county. Each of these bodies is treated as a landowner, or a person interested in the construction of a ditch, upon precisely the same basis as private owners. So a municipality, an incorporated village or a city, is treated as if it were an individual owner. It may have no such especial interest in the construction of a sewer for the drainage of a street as would induce it to adopt a particular sewer or a particular ditch, whereas the contemplated county ditch improvement passing into or through a city or village might be essential to the welfare, the convenience or health of the people ■ living along the line of the proposed improvement. I see no reason why one person, natural or artificial, who may be liable to pay a portion of the cost of such improvement, should be permitted to maintain an action to enjoin the construction of the entire improvement upon the ground stated in this petition. As already stated, this petitioner, although he says he is a heavy tax-payer in the municipality, is suing only on behalf of the municipality as a corporate entity.

Our judgment is that the demurrer to the petition should be sustained for the reason that the petition does not state facts constituting a cause of action.  