422 Strauss v. City of Cincinnati et al. and lands in the corporation, either in proportion to benefits, or according to value, or by the foot front of the property bounding and abutting upon the improvement. 2. A failure of the common council to determine in advance, under sec. 2271 as amended April 16, 1888 (85 O. L., 339), the value of the lands to be assessed is not such a defect in the proceedings that thereby an assessment, in other respects regular, is not properly made. 3. In proceedings by a municipal corporation under chap. 3, div. 7, tit. XII of the Rev. Stat., to appropriate real estate for opening, widening, etc., streets, etc., no provision is made for a resolution declaring the necessity of such improvement, or for the service of a written or other personal notice on the property owners of an intent on the part of the city to assess the cost of such appropriation on their property; neither such resolution, nor such notice is necessary to the validity of an assessment to pay the costs of such appropriation. SAYLER, J. This is an action brought by Sophia Strauss against the city of Cincinnati, Edwin Stevens, comptroller of said city, John Zumstein, treasurer of Hamilton county and Frederick Raine, auditor of Hamilton county, to restrain the city and the comptroller from certifying an assessment to pay the cost and expense of property appropriated to open Ashland street from McMillan street to Myrtle avenue, and an assessment to pay the costs of improving said Ashland street between the points aforesaid, or either of them, to the said auditor, and to restrain the said auditor from placing them, or either of them, upon the tax duplicate, and the said treasurer from collecting, or attempting to collect, the same, or any part thereof, and asking for such other and further relief as the nature of the case and equity may require. An answer was filed and testimony heard, and thereupon the case was reserved to this court in general term. From the bill of evidence it appears that on May 6, 1887, the common council of Cincinnati passed an ordinance to condemn property for opening Ashland street from McMillan street north to Myrtle avenue, and providing as follows: "Sec. 1. Be it ordained by the common council of the city of Cincinnati (two-thirds of all the members elected to each board concurring and declaring the same to be necessary) that its intention is hereby declared to condemn and appropriate to the public use for street purposes for the purpose of opening and ext ning Ashland #treet, from McMillan street north to Myrtle avenue, and it thereby condemns and appropriates to such public use for street purposes, for the purpose of opening and extending Ashland street as aforesaid, the following descr hed property to wit: (gving a description by metes and bounds) and the solicitor is hereby authorized and instructed to institute the necessary proceedings and to apply to the court for an inquiry and assessment of the compensation to be paid for such property. "Sec. 2. The amount so found, together with the costs and expenses of said appropriation and the interest on bonds issued, shall be assessed per front foot upon the lots and lands bounding and abutting upon said Ashland street from the north line of McMillan street to the south line of Myrtle avenue; the said lots and lands so bounding and abutting on Ashland street between said points being the lots and lands which in the opinion of common council will be specially benefited by such appropriation, according to the laws and ordinances on the subject of assessments; assessments therefor to be payable in ten annual installments, and the same collected as provided by law and the assessing ordinance hereafter to be passed. "And bonds shall be issued in anticipation of such assessment." Under this ordinance the proper proceedings were instituted in the common pleas court of Hamilton county for an inquiry and assessment of compensation to be paid to the owners of such lands. Isaac Strauss Superior Court of Cincinnati. 422 was then the owner of a portion of the lands so appropriated, and was made a defendant in said proceedings in the court of common pleas, and was paid the sum of $4,200 for his compensation. Isaac Strauss shortly afterwards died, and by his will devised to the plaintiff a lot fronting one hundred and six feet on the north side of McMillan street and extending back along Ashland street 251 feet, and being lands included in the lands to be assessed under said ordinance. On October 14, 1887, the board of public affairs of Cincinnati passed an ordinance authorizing bonds to be issued to provide a fund for the immediate payment of the costs and expenses of appropriating said lands. On November 26, 1887, the board of public affairs of Cincinnati passed au ordinance to assess a special tax to pay the cost and expense of appropriating said lands, providing as follows: "Section 1. Be it ordained by the board of public affairs of the city of Cincinnati, that there be levied and assessed on each front foot of the several lots and lands bounding and abutting on Ashland street from north line of McMillan street to the south line of Myrtle avenue the sums hereinafter named, for each and every year as specified, to-wit:" (then follows a statement of ten annual installments.) The ordinance further provides for the payment of the installments by the property holders to the comptroller, and in default of that the comptroller shall certify the same to the county auditor to be placed on the tax duplicate. Under this ordinance the said lands of plaintiff, being a portion of the lands bounding and abutting on Ashland street as aforesaid, were assessed in the amount of $2,719.86. On May 4, 1888, the common council of Cincinnati passed a resolution declaring it necessary to improve Ashland street from McMillan street to Myrtle avenue by grading, setting curbs and crossings, flagging and paving gutters, macadamizing the roadway and constructing the necessary culverts, drains and retaining walls (such improvements being recommended by the board of public affairs) in accordance with the plans and profiles in the office of the engineer of the board of public affairs, and specifications on file in the office of said board; the expense of said improvement to be assessed per front foot upon the property bounding and abutting thereon, according to the law and ordinances on the subject of assessments; the assessments therefor to be payable in ten annual installments. Notice in writing was given of this resolution to the plaintiff. On July 18, 1888, an ordinance was passed by the common council to improve Ashland street from McMillan street to Myrtle avenue, and whereby it was ordained that all claims for damages filed with the city clerk under the resolution of May 4, 1888, be judicially inquired into before the improvement shall be made; that the improvement be proceeded with in accordance with said resolution by grading, etc.; that the expense of the improvement, including the damages, if any, assessed in favor of any owner of adjoining lands and interest on bonds, if they be issued, shall be assessed per front foot upon the property abutting thereon according to the laws and ordinances on the subject of assessments; the assessments to be payable in ten annual installments. Thereupon a publication was made inviting sealed proposals for the improvement as required by law; a resolution to contract was duly passed, the contract duly awarded, the improvement was made and duly accepted. 422 Strauss v. City of Cincinnati et al. Thereupon on October 1, 1889, an ordinance was passed by the board of public affairs whereby a special tax was levied and assessed on each front foot of the several lots of land bounding and abutting on Ashland street from McMillan street to Myrtle avenue, payable in ten annual installments, to pay cost and expense of improving Ashland street between the points aforesaid, together with interest on the bonds issued to provide a fund to pay for said improvement, and providing that the owners of the several lots of land so assessed shall pay the assessment to the comptroller in installments, and in default of payment that the comptroller shall certify the same to the county auditor to be placed on the tax duplicate. Under this ordinance an assessment of $2,415 was placed on the said lands of the plaintiff. The plaintiff claims that the assessment to pay the cost of appropriating the lands is void, because the opening of Ashland street was not recommended by the board of improvements prior to the condemnation of the property for the same. It would appear from the bill of evidence that there had been no such recommendation; but the original ordinance has been handed to the court with consent of the parties that it be considered a part of the bill of evidence, and from this it appears that such recommendation was in fact duly made. The plaintiff further claims that the lots and lands to be assessed to pay the cost of the land condemned and the cost of the improvement of the street were not specifically set forth in the respective assessment ordinances, and that therefore the assessments are void. Section 2264, Rev. Stat., provides that the cost and expense of the improvement shall be assessed on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in proportion to the benefits, which may result from the improvement, or according to the value of property assessed, or by the front foot of the property, bounding and abutting upon the improvement as the council, by ordinance setting forth specifically the lots and lands to be assessed, may determine before the improvement is made. The ordinances provide that the cost and expense shall be assessed per front foot upon the lots and lands bounding and abutting upon Ashland street from the north line of McMillan street to the south line of Myrtle avenue. The assessment under sec. 2264 may be on the abutting and such adjacent and contiguous or other benefited lots, or by the foot front on the property bounding and abutting on the improvement; but the council must by ordinance set forth specifically which lots are to be assessed before the improvement is made. See Kelly v. Cleveland, 34 Ohio St., 468. In these ordinances the council has specifically set forth the lots to be assessed as the lots bounding and abutting on Ashland street from the north line of McMillan street to the south line of Myrtle avenue. In this respect we think the statute has been complied with. It is true the depth of the lots is not given, but the law fixes the depth. The purpose of the statute is to designate specifically, in advance of the improvement, the lots to be assessed; that is, whether on the abutting and such adjacent and contiguous or other benefited lots, or on the property bounding and abutting on the improvement by the front foot. It is further claimed that the assessment for the improvement of the street is void because the common council failed to determine in ad Superior Court of Cincinnati. 422 vance the value of the lands assessed under sec. 2271 passed April 16, 1888 (85 O. L., 339). This may have been an omission on the part of the council, but we do not think it is such a defect as that thereby the assessment has not been properly made against the plaintiff or the lot or parcel of land sought to be charged. The plaintiff sets up in her petition the further claim that she had no notice of the passage of the resolution declaring the necessity to improve the street, and further that she had no notice of the intention to levy an assessment on her lands for the improvement on the street, and she therefore claims that that assessment is void. The testimony shows, however, that she was duly served with notice of the passage of the resolution to improve the street, and we do not understand these points are being insisted on. The plaintiff further claims that the assessment to pay the cost of the lands appropriated is void, because no resolution declaring the necessity of such improvement was passed by the common council before the appropriation was made. This court has decided in the case of Anderson v. City, ante 10 Dec. Re., 794, that the opening, widening or extension of a public street by a municipality is a public improvement within the meaning of Rev. Stat., sec. 2304, and a resolution declaring the necessity of such improvement and a service of notice thereof in the manner provided in this section, and preliminary to the passage of the ordinance of appropriation, are jurisdictional requirements necessary to a valid assessment upon private property under the municipal code as revised in 1880. We are called upon to review this decision. The appropriation of lands by a city for opening, widening, etc., street, and for other purposes, is provided for in chap. 3 div. 7, tit. 12 of the Rev. Stat. Sections 2232 and 2233 provide for what purposes appropriation of lands may be made; sec. 2234 provides that no improvement requiring proceedings for the condemnation of private property shall be made without the concurrence of two-thirds of the members of council, and sec. 2235 provides that when it is deemed necessary by a municipal corporation to appropriate private property, as her inbefore provided, the council shall by resolution, declare such intent, defining therein the purpose of the appropriation, and setting forth a pertinent description of the property designed to be appropriated: and that on the passage of such resolution the yeas and nays shall be taken and entered on the record of the proceedings. No provision, however, is made in this chapter for written or other personal notice to the abutting land owner of such intent to condemn lands. The other sections of this chapter provide for the manner of proceeding in the condemnation. No provision is made in this chapter for a resolution declaring the necessity of such improvement, or for a written or other personal notice thereof to the abutting land owner. Chap. 4 of div. 7 tit.. 12 provides for assessments by cities etc. and sec. 2363 provides that when a municipal corporation appropriates lands for the purpose of laying off, opening, extending, straightening or widening a street, alley, or other public highway, or is possessed of property which it desires to improve for street purposes, the council may assess the cost and expenses of such appropriation or acquisition, and of the improvement, or of either, or of any part of either, upon the general tax list, etc. 422 Strauss v. City of Cincinnati et al. Section 2264 provides that in the cases provided for in the last section, and in all cases where an improvement of any kind is made of an existing street, alley or other public highway, the council may decline to assess the costs and expenses in the last section mentioned or any part thereof, or the costs and expenses or any part thereof of such improvement, except as hereinafter mentioned, on the general tax list, in which event such costs and expenses, or any part thereof which may not be so assessed on the general tax list, shall be assessed by the council on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in proportion to the benefits, which may result from the improvement, or according to the value of the property assessed, or by the foot front of the property bounding and abutting upon the improvement, as the council, by ordinance, setting forth specifically the lots and lands to be assessed, may determine before the improvement is made, and in the manner and subject to the restrictions herein contained. Now it will be noted that there are three distinct subjects covered by these provisions of sec. 2263, 2264, viz.: 1st. Assessments to pay for appropriation of lands. 2d. Assessments to pay for the improvement, for street purposes, of property of which the city is already possessed. 3d. Assessment to pay for the improvement of an existing street, etc. Improvements by the appropriation of lands and improvements of property already possessed and of existing streets are clearly distinguished. Judge White, in Krumberg v. Cincinnati, 29 Ohio St., 69, being a case in which the original action was brought to collect an assessment to pay for land taken to widen a street, under the municipal code, of 1869, (66 Ohio L., 145), and amendments says Ib., 75: "The word improvement is used in the act in various senses. Its meaning in any given instance will depend upon the subject to which it is applied, and the connection in which it is used. There seems to be no necessary connection between the improvement of a street by appropriating property to widen or extend it, and improving it by grading, paving and macadamizing." It is claimed that by reason of the provision in sec. 2264, that the assessments shall be made "in the manner and subject to the restrictions herein contained," the provisions of sec. 2304, being in that chapter, become jurisdictional, and that if they are not complied with the assessment is void. Section 2304 provides that when it is deemed necessary by a city or village to make a public improvement, the council shall declare, by resolution, the necessity of such improvement, and shall give twenty days written notice of its passage to the owners of the property abutting upon the improvement or to the persons in whose names it may be assessed for taxation upon the tax duplicate, who may be residents of the county, and publish the same, etc. The object of sec. 2304 seems to be to give notice to abutting property holders of a proposed improvement of a street by change of grade, etc., so that they may have an opportunity under sec. 2315 to present claims for damages that would be caused by the proposed improvement and to enable the council to determine under sec. 2316 whether it will proceed with the proposed improvement. This seems to be clear from the fact that written notice is required to be given only to the owners of |