Hamilton Common Pleas. 79 assessment, that it refuses to pay it over. Curtis Mutual Benefit Life Co. 48 Conn., 98; Protective Union v. Whitt, 36 Kan., 760; Life Assn. v. Lemke, 40 Kan., 142; Earnshaw v. Sun Mut. Aid Soc., 68 Md. 465; Taylor v. Natl. Temperance Union, 94 Mo., 35; Jackson v. Northwestern Mut. Rel. Assn., 73 Wis., 507. But it is not necessary to show any demand upon the company independent of the proofs of loss. Protective Union v. Whitt, 36 Kan., 760. On this ground the petition in this case is clearly bad, and the demurrer well taken. Whether the plaintiff ought not also aver that the assessment if made would yield the amount he prays for, depends on a consideration now to be examined. III. Down to this point the law seemed to me to set the question at rest, but from here a divergence in the authorities appears. Some courts conclude that as the plaintiff can recover only what an assessment upon the membership would yield, he must aver and prove what that amount would be, and can only recover what he proves; and if he does not prove the membership subject to assessment, he can recover only nominal damages. This is held in Newman v. Covenant Mut. Ben. Ass., 72 Iowa, 242; Tobin v. Western Mut. Aid Soc., 72 Iowa, 261; Earnshaw v. Sun. Mut. Aid Soc., 68 Md., 465; Ball v. Granite State Mut. Aid Assn., 64 N. H., 291, and a dictum in O'Brien v. Home Benefit Soc., 51 Hun., 495. But the great weight of authority proceeds on the basis that as the defendant company has all the books and papers and the knowledge or means of knowing as to the amount an assessment would yield, it will be presumed in the absence of any evidence, that the maximum sum stated in the policy would be realized, and the burden of proof is on the defendant to show a lesser amount if he desires to reduce the recovery below this. Lueders v. Hartford Life & Annuity Ins. Co., 12 Fed. Rep., 465, 4 McCrary, 149; Lawler v. Murphy, 20 Atl. Rep. (Conn.), 457; Suppiger v. Covenant Mut. Ben. Assn., 20 Ill. App., 595; Elkhart Mut. Aid, etc., Assn. v. Houghton, 103 Ind., 286; Protective Union v. Whitt, 36 Kan., 760; Life Assn. v. Lemke, 40 Kan., 142; Bentz v. North-western Aid Assn., 40 Minn., 202; Supreme Council v. Anderson, 61 Tex., 296, and a dictum in Jackson v. North-western Mut. Rel. Assn., 73 Wis., 507. The demurrer will be sustained therefore-not because the action will not lie, but for want of the necessary averments of breach contract. John Wentzel, for plaintiff. Joel C. Clore, for defendant. 89 VACATION OF STREETS. [Hamilton Common Pleas, 1891.] IN RE HOTEL ALLEY. The Newport Bridge Company condemned part of Hotel alley in the city of Cincinnati for the Cincinnati approach to the bridge. An action was then brought to vacate the parts of the alley north and south of the approach. Such vacation was consented to by all the abutting property owners, but the city came in with a cross-petition claiming damages as a "lot owner" under Rev. Stat., 2656, The section referred to only provides cumulative remedies, and preserves any rights the city has. While the city is not a lot owner within the terms of the procedure provided in this section, yet its rights can be enforced by an answer and cross-petition and [following Cincinnati v. Commissioners, 1 Disney, 5] that if the city has any special damages by reason of change of drainage, etc., it will be entitled to the same. It has no claim for compensation for a proprietary interest if any have been sustained. City Solicitor, for the city. Kramer & Kramer, C. B. Simrall, Alfred Mack and Paxton & Warrington, for the abutting lot owners. APPROPRIATION OF LAND. [Superior Court of Cincinnati, General Term, 1891] 91 * MT. ADAMS AND EDEN PARK INCLINED RY. Co. v. CINCINNATI (CITY.) 1. The power vested in common council to pass an ordinance is legislative, and any agreement to restrain or abridge that discretion is against public policy, and will not be entertained. 2. The common council has no authority to contract to levy an assessment, and certify the same to another in case of appropriation of land; nor has the city power to borrow money in anticipation of assessment, except by issuing bonds and advertising for bids for the same, as provided in sec. 2703 and 2709 of the Rev. Stat. 3. Section 2251 of the Rev. Stat., which provides for the appropriation of private land for a street by any person interested, does not contemplate any re-payment, other than that found in the beneficial interest, because of this proposed appropriation. This is an action in which the plaintiff seeks to recover from the city of Cincinnati the sum of $8,730.00, with interest from August 22, 1882. The petition, filed July 24, 1882, alleges that the city of Cincinnati, on or about the twenty-seventh day of August, 1879, was about to proceed to appropriate certain lands in said city for its use as a street, being an extension of Grand street, from Nassau street to Gilbert avenue, through the premises of Richard Mathers and James E. Mooney, and it was therfore agreed between the said James E. Mooney and the said city of Cincinnati, acting by its board of public works and common council, that the said James E. Mooney should advance unto the defendants a sum of money sufficient to defray the costs of said appropriation, which cost, including the amount payable to the owner of the premises appropriated, and the costs of proceeding to appropriate the same, should be assessed upon the premises benefited by such appropriation-such assessment to be made by a valid ordinance for that purpose, which should be adopted by council-said assessment to be payable unto the said James E. Mooney to reimburse him for said advance. For a previous decision, see 10 Dec. Re., 679. The judgment of the superior court was affirmed by the Supreme Court, unreported; 52, O. S. 629. Superior Court of Cincinnati. 91 The plaintiff further alleges that in pursuance of said agreement James E. Mooney paid into the treasury of the city, in August 22, 1879, the sum of $8,750.00, being the full amount of the cost of said appropriation, and the council appropriated the said premises and paid for the same the said sum of $8,750.00; but said city, though often requested, has refused and still refuses to make any assessment to pay the cost of said appropriation, or to deliver any such assessment to the said Mooney or this plaintiff, or any part of said sum of money; that said Mooney, for valuable consideration, heretofore assigned and transferred his claim against defendant growing out of the premises, unto the plaintiff; and the plaintiff is now the owner and holder of the same. The answer of the city of Cincinnati admits that it is a municipal corporation, being a city of the first class under the laws of Ohio, and further admits that the said James E. Mooney paid into the treasury of Cincinnati on or about August 23, 1879, the sum of $8,750 00, and that said sum was used by the city for the purpose of appropriating lands in said city for the extension of Grand street from Nassau street to Gilbert avenue, but denies that there was an agreement on the part of the city of Cincinnati to repay or reimburse said plaintiff for the sum so as aforesaid advanced in any mode or manner whatever. It is further alleged that the said James E. Mooney on or about the twenty-eighth day of October, A. D. 1878, for the purpose of inducing the defendant to open and extend Grand street from Nassau street to Gilbert avenue, in connection with William M. Ramsey, entered into a certain undertaking or idemnity bond to the city of Cincinnati, binding himself to pay all costs and expenses incurred by defendant for the appropriation aforesaid; that because of said indemnity bond said defendant was induced to make the appropriation aforesaid; that the costs and expenses of said appropriation amounted to the sum of $8,750.00, and that sum was duly paid by said defendant for such appropration; that said sum of money paid by the said Mooney to the said defendant was due to and was paid to said defendant by said Mooney by virtue of and in accordance with the obligations of said bond, and that said defendant is not indebted to the said plaintiff in any sum whatever. There is a further denial of each and every allegation in the petition not therein before expressly admitted. STATEMENT. The board of public works, on the twelfth day of October, 1878, recommended to the common council that it pass an ordinance to condemn a strip of land lying between Nassau street on the south and Gilbert avenue on the north, which would be included between the extended lines of Grand street, authorizing and directing the city solicitor to institute the necessary proceedings in the court for an inquiry and assessment of compensation therefor, and providing that the amount so found, together with the costs of the action, should be assessed on the property abutting on the improvement. The ordinance was read the first time in the board of council on the eighteenth day of October, 1878, and was referred to the committee of condemnation and vacation. It was reported back on November first, 1878, read a second time and engrossed. Two days prior to this time, James E. Mooney and William M. Ramsey executed a bond to the city of Cincinnati, by which they bound themselves to the city in the sum to be ascertained: the condition 91 Mt. Adams & Eden Park Inclined Railway Co. v. City of Cincinnati. being as follows: "Whereas said James E. Mooney is a person interested in appropriation of private property for the opening and extending of Grand street in said city from Nassau street to Gilbert avenue, which is now being considered by the boards of said city government, now therefore if said city shall appropriate property for such purpose, the expense of the same to be assessed on the property abutting thereon, and benefited thereby and the assessment to be certified to the obligors herein, and cause an application to court to be made to assess the damages therefor, the said obligors bind themselves as aforesaid to pay all costs and expenses incurred by the city in such application, and further to pay into court or otherwise as the law officer of the city, or as the court shall direct, all damages which may be assessed by the jury in such proceedings. Said payment to be made for costs and expenses immediately after the conclusion of this case, and for damages within the six months allowed by law." This bond was approved by the board of public works, November 1, 1878, and was read in the board of councilmen the same day. Nothing further was done with it. It never was approved or accepted by the board of council, and was never even read in the board of alderman. In the board of council the condemnation ordinance was read a third time and passed November 15, 1878. On the twenty-second day of November, 1878, in the board of alderman the rules were suspended, the ordinance was read the third time and passed. On November 25, 1878, it was approved by the mayor and board of public works. Condemnation proceedings were had, and on August 22, 1879, Mooney deposited $8,750.00, the amount of the condemnation money, with the city treasurer, who gave him the following receipt: "Received of James E. Mooney, for condemnation of ground for the purpose of extending Grand street from Nassau street to Gilbert avenue, eight thousand seven hundred and fifty dollars. "Credit General Fund, $8,750.00. This money was paid to the property owners. Grand street was opened by the city as a public street and continues to be used as such. Applications have been made to council to make the assessment upon abutting lots to pay for the improvement and costs for the same to the obligors of the bond, and although ordinances have been introduced, they have never been passed. The evidence discloses that James E. Mooney, who was and is a stockholder in plaintiff's company, transferred and assigned to the plaintiff the claim in consideration of the payment by the plaintiff to him of the amount of such claim. The plaintiff paid the cost of the excavation for the street and laid a single track of street railway therein. The judgment below was rendered for the defendant in error-the intervention of a jury having been waived-by the trial court. A motion for a new trial was overruled, to which the plaintiff in error excepted, and this proceeding is to reverse this judgment of the court in special term. HUNT, J. Superior Court of Cincinnati. 91 It is claimed by the plaintiff in error that the liability against the city exists by reason of the words of the condition of the bond as the contract under which the money was paid, and which, by the acceptance and use of the money, it is said, became an express obligation of the city to make an assessment and certify the same to the obligors. It is contended that the money paid under this bond was not paid by way of voluntary gift, but under an express agreement to repay the money in assessments. In support of this proposition, it is further urged that the appropriation ordinance subsequently passed by all (November 22, 1878) the municipal boards declares that the cost of the appropriation shall be assessed upon the abutting property, and such a declaration would be utterly inconsistent with the claim that Mooney was to make a gift of the money for the appropriation to the city; for, in that event, there would be no necessity of assessing the cost against the abutting owners. (1) The city of Cincinnati defends on the grounds that aside from the legal effect of the bond in question, and of the legal right of the city, to make such an agreement, there was no agreement at all on the part of the city, for the reason that the bond was never presented to the board of aldermen for action. The indorsements on the back of the bond— which is submitted in evidence-show its history in accordance with the facts we have recited. The board of public works and board of councilmen, even admitting that they consented to all the terms of the bond, cannot make an agreement for the city, without the concurrence of the board of aldermen, and no such action was had on this bond, and the plaintiff, therefore, failed to show an agreement to the condition of this bond on the part of the defendant. (2) That even had the bond been approved before all the boards, a legal and binding contract could not arise from it. It is urged as a ground of recovery in this action that the city agreed, in consideration of Mooney paying the cost of said appropria- ` tion, it, the city, would pass a valid assessment ordinance, which should be adopted by the common council, and that the city has refused to make any assessment. As the power to pass an ordinance is legislative, and cannot be abridged and entailed by contract, such an agreement is contrary to public policy and void, and a contract which tends to restrain the unbiased judgment of publie oers will not be sustained, and unless express power is given to a municipal corporation to make such a contract, it cannot well be inferred. Nor would it be difficult to predict the result if a municipal legislature acting under limited and specified powers could effectually bind itself in advance to any particular course of legislation. Chief Justice Marshall, in referring to the power of a municipality to make a change of grade, notwithstanding a contract, says: "A corporation can make such contracts only as are allowed by the acts of incorporation. The power of this body to make a contract which should so operate as to bind its legislative capacity forever thereafter and disable it from ena ting a by-law which the legislature enables it to enact may well be questioned. We rather think that the corporation cannot abridge the legislative power." Goszler v. The Corporation of Georgetown, 6 Wheaton, 593. To the same end, says Judge Dillon in the case of the Illinois and Canal Co. v. St. Louis, 2 Dillon C. C., 87: |