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the assessment is placed on the duplicate. The work shall be advertised and publicly let.

Notwithstanding the assertion of the defendants in error, we think the surveyor, if he finds upon his examination that the ditch does not need cleaning out, he is authorized, and would be expected to so report to the auditor, and that his judgment is not so fettered as counsel imagine, that he must report in favor of an assessment. If on the hearing before the auditor, the latter should find that cleaning out is not necessary, he may so declare and act accordingly by refusing to place any assessment upon the property along the ditch. The statute is not so onesided as counsel contend, when it is fairly construed with relation to the subject-matter. The petition for the injunction alleges that on the day of hearing "said auditor heard all proof offered by the parties affected by the proposed cleaning out of said ditch, and found that the same (the assessments) was in all respects fair and just according to the benefits."

We are of opinion that the legislature can constitutionally confer upon the surveyor and auditor the powers prescribed in section 3, and according to many authorities, the exercise of such powers, in accordance with the act, is due process of law.

However, the hearing and findings by the auditor are not conclusive upon the interested parties. It is true there is no provision in the section for appeal or prosecuting error, and if the rights of the parties are concluded by the findings of the auditor, the property of defendants in error might be taken without due course, or due process of law. But they are not so concluded. For cases arising under the general ditch laws we have section 4491, Revised Statutes, but it may not cover the special proceedings before

Opinion of the Court.

us. But section 5848, Revised Statutes, which is a part of our code of civil procedure, does apply, and furnishes an ample remedy to vindicate any right the land owner may have to urge against the assessment. This section provides: "Courts of common pleas and superior courts shall have jurisdiction to enjoin the illegal levy of taxes and assessments, or the collection of either, and of actions to recover back such taxes or assessments as have been collected without regard to the amount thereof

This section furnishes due course or due process of law. Under its provisions the courts of the state are open for the redress of any wrongs that may be done by taxation or assessments. The defendants in error have availed themselves of this remedy in the very case before us.

In Adler v. Whitbeck, 44 Ohio St., 571, Minshall, J., after discussing authorities and the section of the constitution we are considering and also the fourteenth amendment of the federal constitution, says: "By these decisions, such laws may be in harmony with that amendment (the fourteenth), although they do not provide for giving a party an opportunity to be present when the tax is assessed against him and to be there heard, if they give him the right to be heard afterward in a suit to enjoin the collection in which both the validity of the tax and the amount of it may be contested; and it is immaterial to this question that the party to the suit is required, as in other injunction cases, to give security when instituting the suit." The learned judge cites McMillen v. Anderson, 95 U. S., 37; Hagar v. Reclamation District, 111 U. S., 701; Davidson v. New Orleans, 96 U. S., 97. To these we add 103 U. S., 182; 104 U. S., 78.

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We cite State ex rel. v. Jones, Auditor, 51 Ohio St., 492-513. The latter case decides that section 5848 provides due course of law in cases of taxation and assessment.

In Hagar v. Reclamation District, supra, it appears that the legislature of California passed an act establishing a general system for reclaiming swamps and overflowed, salt marsh and tide lands in the state. The facts are fully stated in the opinion of the above case, and we do not repeat them here. Hagar, whose lands were about to be sold to pay his assessment for the drainage, contended that his property was being taken without due process of law, inasmuch as the assessment was made without opportunity to him to be heard respecting it; that it was made without notice to him, and that the reclaiming statute contained no provision for such notice or hearing, and it was therefore invalid. He claimed that notice and opportunity to be heard were essential to render any proceeding "due process of law," which may lead to the deprivation of life, liberty or property. The opinion by Justice Field contains an able discussion of what constitutes "due process of law."

On page 710, referring to the provision of the California statute, for fixing the value of the lands by assessors appointed, in order to ascertain a just basis for assessment, the learned justice says, "The offi cers in estimating the value, act judicially; and in most states provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by law to hear complaints respecting the justice of the assessments. The law in prescribing the time when such complaints, will be heard, gives all the notice required, and the proceeding by which

Opinion of the Court.

the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent property, is due process of law.

In some states, instead of a board of review or equalization, the assessment may be revised by proceedings in the courts and be there corrected if erroneous, or set aside if invalid; or, objections to the validity or amount of the assessment may be taken when the attempt is made to enforce it. In such cases all the opportunity is given to the taxpayer to be heard respecting the assessment which can be deemed essential to render the proceedings due process of law. In Davidson v. New Orleans, supra, this court decided this precise point." The entire opinion of Justice Field is valuable and decisive of the question before us.

Therefore we safely conclude, that section 3 does not jeopardise the property rights of the land owners and deprive them of due process of law. The section is intended as a summary method of restoring water courses, and the agents to accomplish it are certain county officers whose functions are administrative in character, as is the case in very many other provisions for the assessment of property.

The judgment entry of the circuit court shows that section 3 was held to be unconstitutional, but it fails to point out the part of that instrument with which it is in conflict. Counsel for defendants in error attach to their brief a copy of the opinion rendered in the case which is reported in 27 O. C. C., 245. That court holds that section 3 "is unconstitutional because it unjustly discriminates between different applicants for such improvement with respect to costs." And near the close of the opinion it is said, in comparing section

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3 with section 2 of the act, "This would appear to be unequal legislation and unjust discrimination against the fair minded citizen and violative of the bill of

This attack on the law is very general, and therefore very indefinite. But a word about the comparison of the two sections is proper in this connection. Section 2 allows any one who was assessed for the original construction of the ditch to apply to the commissioners for its cleaning out, and he is required to give bond for the payment of costs, if the application is not granted. Section 3 authorizes any resident owner of land which was assessed for the construction of the ditch to make the sworn statement to the auditor of the necessity of the cleaning out, and he is not required to give bond. In the comparison, why not say section 2 is invalid because it requires a bond, while section 3 requires none? We presume that it is competent for the legislature to require such bonds in all cases, or not to require them in any case; it may provide for bonds in certain proceedings and not require them in others. We know of no constitutional regulation or prohibition on the subject. It is altogether a matter of legislative discretion, and not a matter of constitutional law. To proceed under section 3 is a simple and less expensive method. Sections 1 and 19 of the same act provide for like summary action. Section 1 provides for the removal of obstructions and section 19 for the repair and restoration of flood-gates. In a proceeding to remove obstructions under section 1, no bond is required, while a proceeding under section 19 requires the giving of a bond. Both proceedings are of a summary nature, and the law is not invalid, because a bond is required in one and not in the other.