Welker v. Potter ( 1868 )

By the Court.

1. The proceedings of the city council of Toledo, in passing the ordinance for the improvement in question, and assessing the expense of it upon the lots abutting on the street, 88] ^should have been governed by the act of April 5,1866. 63 Ohio L. 133. By the provisions of that act it was a condition precedent to the exercise of the authority to pass the ordinance and make the assessment, that the council should have declared by resolution the necessity of the improvement, and published the resolution, briefly describing the character of the improvement,, and referring to the plans, etc., as prescribed in the act. This precedent condition not having been complied with, the proceeding® of the council, in passing the ordinance and making the assessment, were without authority of law, and not such mere irregularities or defects in the exercise of lawful authority as are contemplated in the curative proviso of the act.

2. The act of April 5th has a uniform operation throughout the state upon all cities of the first class having a population less than one hundred thousand at the last federal census, and therefore i® not in contravention of section 26, article 2, of the constitution.

Motion overruled.