
    Chesbrough v. Commissioners.
    1. It is within the scope of legislative power to provide, as is done by section 22 of the act relating to ditches (68 Ohio L. 60), that where a proposed ditch is in more than one county, a majority of the board of county commissioners of each county, may, in joint session, locate and establish the same.
    2. Under said section, each board of county commissioners constitutes an integral part of the joint body, and it is essential to the validity of the proceedings in joint session, that a majority of each board should concur therein.
    3. In a proceeding under said section, application for damages must be made to the commissioners of the county where the land is situated. The commissioners of such county, and not the joint body, are to determine the compensation and damages to be paid such applicant. From such award an appeal lies under sections 12 and 13 of said act, as if said ditch was wholly within that county.
    4 It is the public health, convenience or welfare of the community to be affected by the proposed ditch, and not that of the public at large, that is to be regarded in the construction of a ditch. Hence, if it appears that the proposed ditch will bo “ conducive to the public health, convenience and welfare of the neighborhood ” through which it will pass, the commissioners are authorized to construct the same.
    5. When the commissioners have apportioned the cost and expenses and amount of work to each land-owner, and have on due notice heard exceptions thereto, and confirmed such apportionment, it will be presumed, in the absence of proof to the contrary, that such apportionment is just and fair, and was made with reference to benefits to be derived from the improvement.
    
      Error to the District Court of Putnam County.
    The object of this proceeding in error is, to reverse the judgment of the district court, dismissing plaintiff’s petition. This petition was to enjoin the commissioners of Putnam and Paulding counties and others, from constructing a certain ditch, and from'assessing against plaintiff’s lands the cost of constructing six hundred feet thereof, that being the distance allotted to him for construction. This proposed difchwas partly within Putnam, and partly within Paulding counties, and was located and established by a joint session of the commissioners of the two counties. It is alleged as the grounds for an injunction, that said proceedings of the boards in joint session are without authority of law, and void, for reasons which will be stated in the opinion. The answer admits the location and establishment of the ditch, claims the proceedings valid, and takes issue on all the other allegations of the petition. On the trial, a bill of exceptions was taken, setting out all the evidence. To support the issues on plaintiff’s side, he offered a copy of the records “ Prom the .ditch records of Putnam county, ” and rested. No other evidence was offered on either side.
    
      Newbegin & Kingsbury, for plaintiff in error :
    I. Section 22,70 Ohio L. 82, under which these proceedings were had, is unconstitutional, because: 1. It authorizes the appropriation of private property and provides no means of assessing compensation therefor by a jury. Const. Ohio, art. 1, § 19; Engle v. Coms. of Defiance County, 25 Ohio St. 425 ; Smith v. A. & G. W. R. R. Co., 25 Ohio St. 91, Teagarden v. Davis, 36 Ohio St. 601; Lamb v. Lane, 4 Ohio St. 167. 2. It attempts to confer jurisdiction on the commissioners beyond the limits of the counties for which they were elected. While there is no express prohibition of this in the constitution they could exercise only such powers as such officers have been accustomed to exercise in this state. Cass v. Dillon, 2 Ohio St. 607. And any attempt to extend their jurisdiction beyond the limits of their respective counties would in fact be to confer on them judicial functions, which is prohibited. 3. The statute then in force did not provide for personal service of notice of the pendency of the petition for the location of the ditch, but the owner of the lands appropriated for the same was held to have waived his right to compensation if he failed, without knowledge of the proceeding, to appear and demand it. This is a taking of private property without providing compensation therefor in money. It simply confiscates it. 70 Ohio L. 79, § 2; Teagarden v. Davis, supra, and cases therein cited. 4. In the case of Sessions v. Crunkilton, we undertook to show to the court that the laws of the state generally, authorizing the construction of ditches, were unconstitutional, for the reason that they authorized the appropriation of private property for the benefit of private persons, but the court held that in the exercise of police power it was competent for township trustees and county commissioners to condemn lands and assess them for such purposes. Sessions v. Crunkilton, 20 Ohio St. 349. If so, then the levy is a tax and not an assessment (the distinction is a fictitious one, People v. Brooklyn, 4 N. Y. 419), and clearly in contravention of section 2, article XII. of the constitution, declaring that laws shall be passed taxing by a uniform rule all property. Hines v. Exchange Bank, 3 Ohio St. 15; Weeks v. City of Milwaukee, 10 Wis. 258 (original edition); City of Zanesville v. Richards, 5 Ohio St. 589 ; Hill v. Higdon, 5 Ohio St. 246. 5. But the acts and proceedings done under color of these laws in this case were unconstitutional and void in this, that they appear from the record to have been for private and not for the public benefit; it nowhere appears that it was for the public health, convenience and welfare, but for that only of the neighborhood or of the vicinity. Whether this neighborhood extended beyond the lands of the petitioners of the ditch “whose lands would be benefited thereby ” does not appear. Reenes v. Com. of Wood County, 8 Ohio St. 355 ; Hartwell v. Armstrong, 19 Barb. 116.
    II. The statute under which these proceedings were had was in no particular complied with so as to confer jurisdiction on the commissioners to establish the ditch. 1. No notice, as required by law, was given. . The proof shows that at best the notice was published only in a Putnam county newspaper, and the finding, if it can be called sncli, is to the same effect. The law requires that all interested shall be served by publication in each county through which the ditch extends. Where the record shows what was done in a proceeding, nothing else will be presumed to have been done. Moore v. Starks, 1 Ohio St. 372 ; Key v. Williamson, 31 Ohio St. 561. 2. There was no finding previous to the order establishing the ditch, that the provisions of section 2 (70 Ohio L. 80) had been complied with as required by section 4 (68 Ohio L. 60), nor that the ditch, if established, was necessary, and would be conducive to the public health, convenience and welfare. These proceedings and findings, as well as other requirements not complied with, as will appear of record, were all preliminary and jurisdictional to any order establishing the ditch. Sessions v. Crunkliton, 20 Ohio St. 349 ; Welker v. Potter, 18 Ohio St. 85 ; Ferris v. Bramble, 5 Ohio St. 109; State v. Coms. of Streets, &c., 9 Vroom, 190 ; s. c., 20 Am. R. 380. 3. But what is utterly fatal to any order to compel the construction of this ditch or assessing any tax for costs of location, if it had been properly established, is that the record shows no order was ever made apportioning the work of construction and costs of location, either according to benefit to be derived by the lands along the line and in the vicinity of the proposed ditch or otherwise. 70 Ohio L. 81, § 13 ; State v. Coms. of Streets, supra.
    
    
      Long & Lentzy, for defendants in error ;
    I. As to the unconstitutionality of the law: 1. The power of the general assembly to appropriate private property to public use, so far as the necessity and propriety of the appropriation is concerned, is a political power—a question of legislative discretion—and to that extent not subject to review by the courts, unless its limits have been exceeded or its purposes abused. 2 Kent Comm. (7th ed.) 393 ; Cooley Const. Lim. (4th ed.) 663; Giesy v. C., W. & Z. R. R. Co., 4 Ohio St. 325, 326; Potter’s Dwarns on Statutes, 377, 378, and cases there cited. Section 19 of the Bill of Rights does not pretend to limit the discretion of the legislature as to the necessity and propriety ©f the appropriation, but only as to the compensation to be paid, and the mode of ascertaining the amount of that compensation. 'Const, art. I. § 19. The statute gives to the owner the right to have his compensation and damages assessed by a jury, within the meaning of the constitution. 68 Ohio L. p. 62, § 12; 70 Ohio L. p. 80, § 13; 1 Swan & Critchfield, 311-315, inclusive; Lamb v. McKee, 4 Ohio St., 167. All the sections of the law apply as well to ditches which lie in two or more counties as to those which are all within one county, and section 22 simply provides for the additional incidents which arise from the situation of the ditch in both counties. In construing the law each part must be viewed in connection with the whole, and the presumption is always in favor of the validity of the law. 1 Kent Comm. (7th ed.) 510; People v. Draper, 15 N. Y. 532; C., W. & Z. R. R. v. Commissioners of Clinton Co., 1 Ohio St. 82. 2. The proceedings for the location and construction of ditches are, in fact, proceedings in rem. 70 Ohio L. pp. 80-82, §§ 13, 14. And the validity of the law providing for notice by publication and constructive waiver in such cases may be considered stare decisis in this State. Miller v. Graham, 17 Ohio St. 1; Cupp v. Commissioners of Seneca Co., 19 Ohio St. 173-184. 3. Under the general grant of legislative power by the constitution to the general assembly (Constitution, art. II. § 1), as well as under article X., section 7, the legislature may confer upon county commissioners the power to assess the costs of making ditches, roads, &c., when the public welfare demands their construction upon lands specially benefited thereby. Sessions v. Crunkilton, 20 Ohio St. 349. The court will disregard any error or defect in proceedings which does not affect the substantial rights of the adverse party. Rev. Stat. of 1880, § 5115 ; Courtright v. Staggers, 15 Ohio St., 511; Kent v. Perkins, 36 Ohio St. 639-643.
    II. As to the regularity of the proceedings: 1. The record shows notice as required by law in Putnam county. The land of the plaintiff, which was assessed for the construction of the ditch, lies wholly in Putnam county. The publication of tlie notice in Putnam county, in the manner provided by law, was, therefore, a sufficient notice to him, and it was only necessary, in order to meet his complaint of a want of notice, to prove the proper publication of the notice in Putnam county. The law provides for the record in both counties of the proceedings of the commissioners. Rev. Stat. of 1880, § 850. It provides that the surveyor shall make a report for each county. TO Ohio L. p. 82, § 22. And these are all the matters which are required to be of record in both counties. The proceedings of each auditor is only properly of record in his own county. The notice being shown to he of record in Putnam county, in the absence of the record in Paulding county, or of proof on the part of the plaintiff that no such record exists, the presumption will be that the finding of the joint boards of commissioners, “ That due notice has been given as required by law, &c.,” will be taken as conclusive that a like notice was given in Paulding county. Keys v. Williamson, 31 Ohio St. 561. 2. The record shows a finding that the ditch is necessary, and will be conducive to the public health, convenience and welfare of the neighborhood, a finding amply sufficient to create the jurisdiction. 3. There was an “ apportionment of the John Dalton ditch in Putnam and Paulding counties,” found in the proceedings of the commissioners of Paulding and Putnam counties, in the matter of said ditch, separate and distinct from the apportionment contained in the proof of the published notice. And the presumption of law, in the absence of proof to the contrary, is that it was made, as was deemed just and right, according to the benefits derived by constructing the same. 70 Ohio L. p. 81, § 13 ; Courtright v. Staggers, 15 Ohio St. 511-514. The petition alleges that no estimate was made by the commissioners and no award of the labor according to the benefits. And the answer alleging that the proceedings were in all respects in conformity to law, denies each allegation in the petition not specifically admitted in the answer.
   Johnson, J.

The proceedings to-locate and establish this ditch were had under sections 1, 4, 5, 11 and 12 of vol. 68 of Ohio Laws, p. 60, and amendments to sections 2, 3, 13, 14 and 22 of 70 Ohio Laws, 79.

Section 22 contains the authority for the action of the two boards. It reads: Sec. 22. In all cases where any proposed ditch shall be in more than one county, the application shall be made to the commissioners of each of said counties, and the county surveyor or engineer must make a report for each county, and application for damages must be made in the county where the land is situated, and a majority of the commissioners in each county, when in joint session, shall be competent to locate and establish the ditch.”

It is objected that said section is unconstitutional, because it attempts to confer jurisdiction on the county commissioners, beyond the limits of their respective counties for which they were elected.

It is admitted there is no provision of the constitution expressly prohibiting such a statute, and this admission is a ■sufficient answer to the objection. All legislative power, not prohibited, is vested in the legislature. It is clearly a legislative power to provide for the construction of ditches, where they are conducive to the public health, convenience or welfare, and to designate such agencies as are appropriate, and not prohibited, to carry out the provisions of the act. This section provides, that when the proposed ditch is in two or more counties, it must be located and established by the boards of commissioners of the respective counties, in joint session, and it requires a quorum and concurrence of each board to make the necessary orders.' As amended (70 Ohio L. 82) this section requires, as the foundation of joint action, that the petition must be filed in each county, and the proceedings, preliminary to the joint action,-such as the bond and notice, as required by section 2 of the act (68 Ohio L. 60), are to be had in each the same as if the ditch was in a single county. The joint action consists in the finding that the provisions of law, preliminary to the consideration of the petition on its merits, have been complied with, a finding that the proposed ditch is conducive to the public .health, convenience or welfare, the location of the same, if they so find, and the apportionment of .the -costs and work of construction. If damages are claimed, the application therefor must be made to the commissioners of the county where the land is situated. The joint-session has nothing to do with the assessment of damages for property appropriated. It locates and establishes the ditch, and apportions the cost of its location and construction, and damages, if any, to the persons owning lands through, or in the vicinity of which, the proposed ditch is to be constructed. As the ditch is an entirety and lies in more than one coimty, the statute requires the concurrent action of each county to locate and establish it, and to apportion among land-owners its aggregate cost. A majority of each board, in joint session, and not a majority of the joint board, is required. Hence each board acts as an integral part of the joint body. The assumption that the commissioners of either county are acting and exercising authority over the internal affairs of the other county, is therefore not well founded. Engle v. Board of Commissioners, 25 Ohio St. 425.

Again, it is objected that section 22 is unconstitutional, and the proceedings void, because no provision is made for a jury to assess the compensation for lands appropriated.

It was held, in Engle v. Boards of Commissioners, 25 Ohio St. 425, that no appeal was provided from the final action of the joint boards in establishing a ditch in more than one county. It was not, however, held • that no appeal would lie from an allowance of compensation and damages made by the commissioners of the county where the laud was situated. We think this section, when construed in connection with other provisions of the same statute, does provide for such an appeal from the action of the commissioners allowing compensation and damages for land appropriated. In proceedings under this section, application for damages must be made in the county where the land is situated, and the commissioners of such county must act thereon. It is no part of the duty of the joint boards to assess such, damages and compensation. Section 13 provides for an appeal from their action to the probate court, where the same provision is made for a jury as in other cases, under the act of April 30, 1852. A constitutional jury is thus provided. It is true no appeal lies from the order of the joint boards establishing a ditch, yet one is provided from the separate and independent action of each board in allowing compensation and damages. After all questions of damages and compensation are settled, tlie boards in joint session award to land-owners their proper proportions of the costs and labor of construction.

These proceedings are said to be void, because the petitiqn on which they are founded was insufficient to warrant action,, and because the findings of the joint sessions are alike defecti%re.

The petition states, and the order establishing the ditch finds, that the proposed ditch “ will be conducive to the public health, convenience and welfare of the neighborhood,.” The statute (§ 1) authorizes such action “ when the same will be conducive to the public health, convenience or welfare.” The record shows that this, proposed ditch extended something near five miles in the two counties. The finding is, that it will be conducive to the public health, convenience and welfare of the neighborhood, that is, of the neighborhood along the entire line of the proposed ditch. The object of the law is to provide a means for drainage wherever the public health, convenience or welfare requires it.

It is not essential that thz public at large shall be benefited, but only that part of the public affected by want of proper drainage, or by the improvement to be made. The in jury from want of drainage and the benefits to be derived from the ditch are necessarily local in their nature. Public welfare, health and convenience, in this connection, are terms used in contradistinction from a mere private benefit. A nuisance is said to bepublic, when it affects the surrounding community generally, and impairs the rights of neighboring residents as members of the public, and private when it especially injures individuals. Abbott’s Law Diet, title “ Nuisance.”

The finding by the commissioners in joint session, that the proposed ditch will be conducive to the public health, convenience and welfare of the neighborhood, is a finding, that the community generally in the vicinity are benefited, and not merely the lands of the petitioners or others. It is a finding that it is for the public welfare as distinguished from a mere private advantage.

It is further claimed that no notice was given such as the statute requires as a condition precedent to the order establishing the ditch, and also that plaintiff had no actual notice.

The petition alleges a want of such notice. This is denied by the answer. The burden of proof was on the plaintiff. He offers in evidence a copy of the proceedings in Putnam county only. "What was done in Paulding does not appear. It can only be inferred from the recitals in the record made in Putnam county, and in the action of the joint boards. These show notice by publication in Putnam county. For aught that appears the record of Paulding county shows a like notice in that county. If they do not the onus was upon plaintiff to show it. The auditors of each county are required to keep a record of all proceedings had in each case (§ 19).

This record, when properly kept, would include the separate action of his board preliminary to the joint action, the joint action, and all subsequent action of his own board. The record of Putnam county would not therefore show the action of the commissioners of Paulding county, except when in joint session.

The plaintiff has therefore failed to show that there was no notice by publication in Paulding county, or that he did not have actual notice of these proceedings. As this is an action to enjoin proceedings, and not in .error to reverse them, the burden is upon plaintiff to make good the allegations of his petition.

The last objection we shall notice is, that the record fails to show an order apportioning the work to be done' according to benefits to be derived by the lands along the line.

Section 13, as amended (70 Ohio L. 80), provides that the commissioners shall make a just and fair estimate of the average cash value of the construction per linear rod, cubic yard, or foot of earth, and every section or allotment of such ditch, and apportion the cost of the location thereof, and labor of constructing the same, and award to each person owning lands through and in the vicinity of which it is proposed to pass, as shall be just and right according to benefits to be derived by constructing the same.

They shall specify the time for the payment of costs and the time and manner in which the labor is to be performed, and appoint a day to hear exceptions to such apportionment. The auditor shall give notice of such apportionment, showing the names of the owners, each parcel of land assessed, number' of. feet each is to construct, estimated value for construction, and the expenses, including damages and compensation, if any, that have been awarded. On the day named in such notice, the commissioners shall meet, and if exceptions have been filed, they hear the same upon sworn evidence offered by any party. On such hearing, and an actual view if they desire, they may confirm or change the apportionment as in their judgment is just (70 Ohio L. 81, 82).

This petition charges that the apportionment of cost of locating, and the amount of work each was to do, was made without any estimate of the cost of construction, and without regard to the benefits to be derived therefrom. This is denied by the answer.

The record shows the apportionment as required by section 13, as published in the Putnam County Sentinel, by the auditor of that county. We may assume that like notice was also given in Paulding county.

The time therein fixed for hearing exceptions was fixed, as well as the time for completing the work. At the time fixed for hearing exceptions the two boards held a joint session, certain exceptions were filed, and after mature consideration they were overruled and the apportionment was confh-med. The time for doing the work having expired, the part allotted to plaintiff was sold to McPheters, one of defendants, pursuant to notice.

The record is silent as to the estimates made of cost of construction, and of the method adopted to apportion the work. It does show the apportionment in detail, but whether it was in all respects just and fair with respect to benefits to be derived does not appear. These two boards were created a tribunal to hear exceptions upon sworn testimony and after publication of due notice. The record shows they performed that duty, and until the contrary appears, we must presume their apportionment was just and fair, and made with proper reference to the benefits to be derived.

Other objections are urged against these proceedings, but as they relate to their regularity, rather than their validity, we have not regarded it as necessary to consider them in this connection.

Judgment affirmed.  