#### William M. Corry *v.*Hugh Campbell.

1. The concurrence of all the trustees of a special road district is not required to the making of an order for the improvement of an existing street, under section 46 of the act providing for the organization of cities and incorporated villages, as amended March 12, 1853. S, *&*O. 1509.

2. Pacts, stated in an answer, which could have been given in evidence under a denial of the averments in the petition, do not constitute new matter requiring a reply.

3. “Where work done under a contract is accepted by the trustees, but the work is found to have been defectively performed, the contract and not the benefit to the property assessed for the payment of the work, constitutes the basis for ascertaining the amount to be recovered.

Error to the District Court of Hamilton county.

This was- an action brought by the defendant in error against the plaintiff’ in error and others, in the Court of Common Pleas of Hamilton county, to enforce, by a sale of the lots, the collection of certain sums of money assessed thereon by an ordinance passed by the trustees of the special road district of Mt. Auburn, Walnut Hills, and Clintonville, to pay for the grading and improvement of Jefferson street, upon which the lots abutted, under a contract made by the defendant in error with the trustees of the road district.

*135On the trial in the Common Pleas, the court found for the defendant in error, and ordered the sale of the lots so assessed, in default of payment of the amount assessed,, within the time limited in the order. The cause,was appealed to the District Court, where a like finding was had in favor of the defendant in error, whereupon the plaintiff in error moved for a new trial, which motion was overruled. On the trial in the District Court, the plaintiff in error, for the purpose of showing that the work was of little or no' value to him or the property sought to be charged, called Daniel Shanley, who testified that he had for some years lived near the improvement; had been engaged in grading-streets, as contractor and otherwise, and had frequently seen the improvement during the progress of the work, and afterward. The witness was then asked, successively,, the following questions ;

“Are you acquainted with the value of the property of W. M. Corry sought to be assessed in this case; and if so, what is its present value without regard to any benefit conferred by making the improvements in question ? ”

“Are you acquainted with the value of said property of *~W.*M. Corry; and if so, what is its present value with the said improvements ? ”

“Are you acquainted -with the improvements in question ; and if so, what, if you know, is their value to said *W.*M. Corry, or to his property sought to be assessed in this case ? ”

To each of which questions the defendant in error objected. The court sustained the objections, and refused to permit the questions to be answered. The plaintiff in error excepted to the rulings, and a bill of exceptions in that behalf was signed and sealed by the court, and ordered to be made part of the record in the case. The plaintiff in error now seeks to reverse the judgment of the District Court for errors assigned in his petition herein filed.

*136J. *W. § G. JB. Okey,*and *II. M. Moos,*for plaintiff in error:

I. The act of 1853, 2 S. & C. 1509, sec. 46, provided: ■“ No order shall be made for the improvement or repairs of any road, street, or alley, except on the petition of two-thirds of the resident owners of the lots of land through or by which such road, street, or alley, or part thereof, to be, improved or repaired, shall pass.”

The improvement was ordered in violation of that provision. It is not only admitted that the whole number of lot-owners was eleven, of whom but seven signed, but it is also admitted that four of the signers were minors.

1. 'The petition was “ a necessary prerequisite to the lawful exercise of the power.” *Corry*v. *Gaynor,*22 Ohio St. 584-593; *Covington*v. *Casey,*3 Bush, 698-701; 16 La. An. 393; *Sharp*v. *Spier, Sharp*v. *Johnson,*4 Hill, N. Y. 76, 92.

2. The petition was a nullity, unless the signature of minors imparted validity to it. But minors could not consent. Cushing’s Law & Pr. Leg. Ass., secs. 24, 25, 56; Cooley’s Const. L. 29, 30, 599; *People*v. *Smith,*45 N. Y. 772-785; 46 N. Y. 110 ; 47 N. Y. 415 ; 1 Parsons on Con. 281; *Lawrence*v. *McArter,*10 Ohio, 37; *Blanchard*v. *Gregory,*14 Ohio, 403.

3. G-uarclians have no power to consent *(Genet*v. *Tallmadge,*1 Johns. Oh. 561), except by statute; and no statute had conferred the power in this case. Swan & Sayler, 676, supports this view instead of being in opposition to it.

4. It is admitted the requisite number did not consent.

(1.) It is averred in the answer, among other things, that the whole number of lot-owners was eleven, of whom four were minors. If the other allegations amounted simply to a denial, that, at least, was a statement of new matter constituting a defense.” Code, sec. 92; Swan’s Pl. 254, note; *Northup*v. *Mississippi Val. Ins. Co.,*47 Mo. 435-444; 18 Ohio St. 353; 9 Minn. 194; 2 Nev. 16; 4 Cal. 233. Analogous cases showing what is “ new matter:” Statute of *limitations*— McKinney v. *McKinney, Sturges*v. *Burton, 8*Ohio St. 423, 215; *Huston*v. *Craighead,*23 Ohio St. 198-*137209. Statute of *frauds*— Osborne *v. Endicott,*6 Cal. 149; *Dinkel*v. *Gundelfinger,*35 Mo. 17; *Livesey*v. *Livesey, 30*Ind. 398; 31 Mo. 536 ; 35 Mo. 50. *Payment*— Edwards v. *Edwards,*24 Ohio St. 402-411. Fraud — 27 Cal. 656; 5 Bosw. 16 ; 7 Barb. 18. Illegality — 9 Bosw. 79. Coverture—4 E. D. Smith, 425 ; 22 Barb. 647. Want of capacity to sue — 31 Barb. 132 ; 8 Cal. 585. Unworkmanlike manner of doing work — 1 Cal. 371. Usury — 12 Abb. N. S. 5.

(2.) There being no reply to the “ new matter,” the answer in that respect must be taken as true, and a general finding in opposition to it can not avail the plaintiff below. Code, secs. 101, 127, *128 ; Bomberger v. Turner,*13 Ohio St. 263 ; *Bentley*v. *Dorcas,*11 Ohio St. 398 ; *Mulford v. Clewell, 21*Ohio St, 191-196; *Oliver v. Moore,*23 Ohio St. 473-479; 24 Ohio St. 411; 13 Wis. 549.

II. It is averred in the answer, and not denied in any reply, that the work was accepted, while in an unfinished condition, by fraud and collusion between the engineer and the defendant in error. That this was “new matter,” and must be regarded as admitted, see authorities under Point I. And that it was a complete defense is clear. Dillon on Mun. Corp., sec. 648; 24 N. J. Eq. 143; and cases cited under the next point.

III. It being admitted that the work was accepted, while in an unfinished condition, by fraud and collusion between the defendant in error and the engineer, and evidence having been given tending to show that the work was not done in a good or workmanlike manner, the court erred in excluding the testimony of the witness Shanley, that the ■plaintiff in error was not benefited by the work. The act of 1852, 2 S. *&*C. 1505, sec. 31 (Municipal Code, sec. 550), provided a remedy where, without the fault of the contractor, the proceedings of the trustees or officers were invalid or irregular; but that provision has no application when the contractor fails to perform his contract, or is guilty of fraud in procuring the acceptance of the work. *Northern Ind. R.*v. *Connelly, 10*Ohio St. 159; *Upington v. Oviatt,*24 Ohio St. 232; *Witherow*v. *Witherow,*16 Ohio, *138238; *Allen*v. *Curles,*6 Ohio St. 505 ; *Ashbrook*v. *Hite,*9 Ohio St. 357; *Larkin*v. *Buck,*11 Ohio St. 286 ; *Stein*v. *Prairie Rose,*17 Ohio St. 276; *Smith*v. Brady, 17 N. *Y.*179-187 ; *Sheldon*v. *The Mayor,*7 Bosw. 601; *Oxendale*v. *Wetherell,*9 B. & C. 386 ; S. C., 17 E. C. L. 401; *Creamer*v. *Bates,*49 Mo. 523; *Bragg*v. *Bradford,*33 Vt. 38 ; *Bryant*v. *Stilwell,*24 Penn. St. 318; 60 Penn. St. 407; 14 La. An. 297; 36 Mo. 467; 24 N. J. Eq. 143; Dillon on Mun. Corp., sec. 648.

IV. The ordinance to grade was void.

1. It was not concurred in by all the trustees. 2 S. & O. 1509, sec. 46.

2. It is absurd. A *pitch down*of 143 feet in 210 feet is an impossible grade. In other respects it is insensible. An ordinance is the act of “ a miniature general assembly,” 22 Mo. 105, and must be construed by its words ; and “ undoubtedly must be reasonably certain in its requirements,” 16 Ohio St. 54-62; otherwise it is void. Bishop on Stat. Cr., sec. 77; 7 Cranch, 52; 10 Ohio St. 531; 12 Ohio St. 201; 18 Ohio St. 456; Dillon on Mun. Corp., sec. 245.

V. The act of 1866, S. & S. 805, under which the assessment was made, authorized, in form, an assessment of “ fifty per centum of the value of said lot of land, to be estimated after the said improvement has been made.” That is unconstitutional. The right to impose an assessment is based upon an equivalent in the way of benefits; and although it may not follow “ that there must be, in fact, such full equivalent in every instance” (10 Ohio St. 165), yet an assessment without any regard to benefits is confiscation, and an act authorizing it in violation of article 12, section 2, and article 13, section 6, of the constitution of Ohio, and articles 5, 13,14, and 15 of the amendments to the constitution of the United States. *Newark v. State,*N. J. Court of Errors, 1874, 3 Am. Law Record, 25 ; *Clapp*v. *Hartford,*35 Conn. 66 ; 99 Mass. 627 ; 3 C. E. Green, 518 ; 3 Dutcher, 190; 5 Vroom, 227 ; 10 La. An. 57; 4 N. Y. 419 ; 65 Penn. St. 146; 8 Mich. 274; 19 Mich. 39; 4 Peters, 514, 561, 563 ; 3 Dana, 28 ; 9 Dana, 513; Cooley’s Const. L. 507, 508, *139280; Dillon on Mun. Corp., secs. 596, 597; 1 Ohio St. 126; 5 Ohio St. 243, 520; 8 Ohio St. 335 ; 16 Ohio St. 54; 18 Ohio St. 303; 22 Ohio St. 584.

J. *J. Miller,*and *Motion ty Coffrey,*for defendant in error?.

Rex, J.

In the District Court, this case and the cases of *Eleanor Douglass*v. *Hugh Campbell,*and *Eleanor Douglass*v. *John Gaynor,*were heard at the same time, and decided, upon the same testimony, and as the testimony given at the trial, except that of Daniel Shanley, and a certified copy of the record of the proceedings of the trustees of the road-district, is not set out in the bills of exceptions taken at the-hearing, it must be assumed that there was sufficient evidence to sustain the findings of the court on the issues-joined between the parties by their pleadings.

It is claimed by counsel for the plaintiff in error, that defenses 2 and 7 of the answer each allege new matter which is not controverted by the reply, and that the new matter so alleged constitutes a valid defense to the action.

Defense 2 is as follows : “ 2. These defendants say, that the whole number of resident owners of lots of ground fronting on said street, between the points aforesaid, at the date of signing and presentation of said pretended petition, was eleven, and no more ; that of said eleven, four did not sign said petition, and four of those who did sign were minors,, and therefore incapable, in law, of giving validity to the said petition by signing the same. Of the remaining three who-did sign said petition, two signed the same under an express-agreement between them and one of the members of said board of trustees and the plaintiff, that-they, the said two signers, should have the privilege of making improvements on said street in front of their own property, and which agreement was a secret one, and a fraud upon the defendants and the owners of property on said street. The single-remaining signer to said pretended petition was the owner of only twenty-five feet front upon said street. These de~ fendants-say, that by reason of the facts above stated, said *140pretended petition was wholly invalid, and, for the rea-sons above, the costs of the improvement of said street can not be legally assessed upon the lots of land abutting and ■bounding upon the same.”

On the subject of this defense, the petition, whethei properly or not, it is not necessary now to decide, contains -the averment:

> “ That a petition signed by more than two-thirds of the ■resident owners of the lots of land fronting on Jefferson ••street, between Calhoun and St. Clair streets, was presented to the board of trustees of the special road village of Mt. .Auburn, Walnut Hills, and Clintonville, at their regular •meeting, on the 23d day of September, 1868, the prayer ■of which was, that the gráde of said street be established, and the street be graded full width, gutters paved, curbs set, sidewalks flagged, and roadway macadamized, and that ■such bridges, culverts, and well-holes be constructed as ¿should be found necessary.”

The matters contained in defense No. 2 can not, when carefully analyzed, be regarded in any other light than that •of a specific denial of the facts averred in the petition. The number of resident owners of lots abutting on the street who signed the petition, and their capacity to act in the premises, were proper subjects of inquiry in the case, and ■■could, in our opinion, have been inquired into and decided under the general denial.contained in the answer, and that therefore the specific denial was unnecessary, and need not be controverted by a reply. Por the purpose of testing the question, suppose that the petition of the plaintiff below had contained no averment on the subject, and the ■questions of the validity of the petition upon which the trustees acted had been first presented by the answer, it must be conceded that a reply, averring that the petition presented to the trustees for the improvement was signed by two-thirds of the resident owners of lots abutting on the street, would have sufficiently controverted the answer to allow the introduction of testimony upon the points made in this defense. Such an averment relates mot only *141to the proportion of the petitioning lot-owners as compared-' with the whole number, but also to their capacity to act, in the premises under the provisions of the statute.

The remaining allegations of this defense are immaterial,. for the reason that, if the improvement was completed, the' fact that portions of it were completed by persons other ■ than the contractor could not injuriously affect the plaintiff in error; nor could he be so affected by the fact that one-of the petitioners owned “only twenty-five feet front upon' said street.”

The seventh defense, after denying generally the averment of the petition, “that the plaintiff completed the-work in accordance with the terms of his contract,” pro- - ceeds to aver that the trustees and engineer failed to perform their duty by accepting the work before it was completed, specifying particularly the defects in the work at-the time it was accepted, in fraud, as is claimed, of the rights of the defendant. If this latter portion of the defense-were admitted, we are unable to perceive how, or in what manner, it could affect the right of the defendant in error to recover for the work actually performed, under the contract, at the price therein stipulated. The general denial in this defense putin issue the averments of the petition - in this regard, and under the issue so made, all defects in the work could be deducted from the price stipulated in the-contract to be paid therefor; and this leads us to the conclusion that this defense is simply a general denial of the averments of the petition above referred to.

The contract specifies the work to bo performed, the manner of its performance, the size, kind, quality, and quantity of the material to be used, and the price to be paid to the-contractor for each of the several kinds of material and. labor necessary to complete it, so that the value of the material used, and the labor performed, can be arrived at with mathematical certainty. The value so ascertained is the-measure of the lien, under the contract, upon the lots assessed.

It is also claimed that the District Court erred in sustain- • *142ing the objections to, and refusing to permit the questions .asked of Daniel Shanley to be answered.

The rule of recovery in the action was properly held to be upon the basis of the contract, and not upon the basis indicated in the questions to the witness, and hence we are •of opinion that the court did not err either in sustaining the objections to the questions asked, or in refusing to permit the questions to be answered. It is also assigned for •error that the proceedings and ordinances establishing the grade and directing the improvement, assessment, etc., were not concurred in by all the trustees of the road district, and that the ordinance establishing the grade is void, for want of certainty. The act of May 3, 1852, S. & C. 1509, under which the improvement was made, does not require the concurrence of all the trustees to direct the improvement of a street in such road district.

It does not clearly appear from the proceedings of the trustees that they all concurred in the ordinance directing the improvement to be made, and the subsequent proceedings under it, but it does appear that a majority of the trustees concurred ;.and it further appears that all the trustees concurred in the ordinance assessing the lots abutting ■on the street, to pay the price agreed to be paid for the improvement. We are therefore of opinion that the ordinances for the purposes named are valid, and sufficiently ■certain.

The remaining assignments of error, and the points made in argument, both oral and written, relate to the •question of the constitutionality of the act under which the proceedings were had.

On this question it is deemed sufficient to say that the point was made, and, as we believe, correctly decided in favor of the constitutionality of the act, in *Hill*v. *Rigdon,*5 Ohio St. 243; *Powers*v. *The Commissioners of Wood County,*8 Ohio St. 285, and in several cases subsequently decided.

The judgment of the District Court is therefore affirmed, *143and the cause remanded to the Court of Common Pleas to carry the judgment into execution.

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