BENTLEY, J.
There are, in reality, two plaintiffs in this action whose respective rights are distinct and, in some degree, different; namely, Judge Sloane as an owner of property abutting on the proposed railroad route, and the city of Sandusky, whose rights are asserted by a taxpayer under sec. 1778 of the Rev. Stat.
There are two alleged causes of action. Whether these dual aspects of the case render the oetition obnoxious to the objections the remedy wberefor is pro[677]*677vided in paragraphs four or six of sec. 5062 we need not now inquire, since, under the provisions of sec. 5064, such objections have been waived. Nevertheless, the court, in disposing of the case, must necessarily have regard to the distinct rights whose violation is alleged in the petition.
. Of the said objections to the proceedings of the council and the defendant railway company, complained of in the petition, the one which the plaintiff Sloane as an abuitting property holder can legally urge is that the consents in writing of the abutting-property holders on Franklin street, made by sec. 2502 a pre-requisite to the making of a grant of the right to construct and operate a street railway therein, were not obtained prior to the adoption of the ordinance of November 9, 1891, granting the franchise to said defendant 'railway company, or were not obtained at the proper stage of said proceedings looking to the making of such grant.
On the question of fact presented by the evidence we find that the written consents of the requisite majority of abutting property holders had been obtained, and were before the council prior to the adoption of the said ordinance of November 9,1891.
We cannot concur in the views of the plaintiff and his counsel that such consents -must be obtained before the time of the publication of the notice inviting bids to construct and operate the railway, nor in their claim that the statute requires the property holders’ consent to the mode and manner of the construction and operation of the street railroad. The terms of the statute do not, as we think, require this, and many reasons suggest themselves why such could not have been the intention of the legislature. Among these would be the limitations which 'that interpretation would impose on the power and right of the council to prescribe regulations for street railways and “the terms and conditions upon, and Ihe manner in which the road should be constructed and operated.” Certainly the council should be free at the time of the passage of the grant finally to determine the conditions which it should impose.
Our conclusions on the case generally as made by the plaintiff Sloane as a property holder are adverse to his right to any decree in his favor.
The other branch of the case presents the rights of the city to enjoin operations under a grant made by its council, since, under sec. 1777 et seq., that is the nature of the action which the tax-payer, on the refusal of the city solicitor, may maintain.
' In case the plaintiff’s contention is sustained, the order is to be such “as the equity and justice of the case demand.” (sec. 1779.) This indicates the scope and purpose of the inquiry by the court and suggests the rules by which the court is to judge of the effect of any irregularities or defects which the record of the proceedings of the council or the evidence may present.
We hold that the defendant company, when it made its application on August 17, 1891, though not organized by the election of directors, was capable of receiving a grant, and that its application and that of Gotlieb Zimmerman and others, filed at the same time and by the same person and referring each to the other, are to be considered together, and that when so taken they constitute a legal application, and, at all events, there is no question but that when the grant complained of was finally made to the defendant company, it was fully organized, and we are unable to see how, in' such case, the city or the plaintiff or any person could be injured by any such defect in the application as is claimed.
The statute provides in terms, for one notice only, namely, the publication of the “application” for at least three weeks, and, while it would certainly be proper and, perhaps, more orderly for the council by resolution or otherwise to prescribe the terms and general conditions upon which the railroad should be constructed and operated, and to make a definite order as to the form of bids, and as to the [678]*678time when bidding should close, yet, we think 'the power of the council to make a grant does not depend upon its following this course.
It is to be inferred from the provisions of the statute that the clerk may proceed to publish it. The statute itself prescribed the minimum time of the publication, the papers in which it shall be published, and the person to publish it. And we cannot see that the object contemplated by the legislature to be gained by the publication would fail of accomplishment if it be made for the time and in the manner pointed out without a direct authority of the council, especially if the council afterwards recognize it and act upon it. The statute requires the franchise to be granted, if granted at all, to the lowest bidder as to fares, but provides no way for the council to ascertain the lowest bidder except by such invitation for bids as may be inferred by the publication of the “application.” True, as we have heretofore held in the Simmons case, 4 Ohio Circ. Dec. 69, it would be competent for the council, for the purpose of securing good faith on the part of bidders, to require some security or proof that the bidder intended, if his bids were accepted, to build and operate the road, and it might prescribe a reasonable limit to the time when bidding should close (not within the time prescribed by the statute for the publication of the application), but the end and aim of all such regulations so far as the city is concerned, is to secure the proper use of its streets for the advantage of its citizens and the use of the railway at the lowest rates of fare reasonably attainable. If in the carrying out of rules and measures voluntarily self imposed by the city, through its council, there should be defects and irregularities, how could that result in wrong to the city itself, if the council, acting in good faith, should deem such defects immaterial and in-noxious as to affecting the final result sought?
It is to be noted that in the petition there is an entire absence of averment that the action of the council or of any person concerned was in any way in bad faith, and no suggestion is. made that but for the irregularities mentioned, any more favorable bids, or any other bids whatever would have been or would probably have been received. Any chances that bids more advantageous to the city or its citizens would have been secured from a more orderly proceeding must be ’ gathered, if gathered at all, by necessary or, at least, reasonable inferences arising from a consideration of the nature of the defects themselves.
It is to be borne in mind that this street railroad is not an improvement to be made by the city or to be by it paid for. It is largely a private enterprise, and the city’s interests in it are mainly to see that no improper use of, or obstruction in its streets occurs, and that the privilege of constructing the road shall be granted to the one who will agree to carry passengers at the lowest rates of fare.
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BENTLEY, J.
There are, in reality, two plaintiffs in this action whose respective rights are distinct and, in some degree, different; namely, Judge Sloane as an owner of property abutting on the proposed railroad route, and the city of Sandusky, whose rights are asserted by a taxpayer under sec. 1778 of the Rev. Stat.
There are two alleged causes of action. Whether these dual aspects of the case render the oetition obnoxious to the objections the remedy wberefor is pro[677]*677vided in paragraphs four or six of sec. 5062 we need not now inquire, since, under the provisions of sec. 5064, such objections have been waived. Nevertheless, the court, in disposing of the case, must necessarily have regard to the distinct rights whose violation is alleged in the petition.
. Of the said objections to the proceedings of the council and the defendant railway company, complained of in the petition, the one which the plaintiff Sloane as an abuitting property holder can legally urge is that the consents in writing of the abutting-property holders on Franklin street, made by sec. 2502 a pre-requisite to the making of a grant of the right to construct and operate a street railway therein, were not obtained prior to the adoption of the ordinance of November 9, 1891, granting the franchise to said defendant 'railway company, or were not obtained at the proper stage of said proceedings looking to the making of such grant.
On the question of fact presented by the evidence we find that the written consents of the requisite majority of abutting property holders had been obtained, and were before the council prior to the adoption of the said ordinance of November 9,1891.
We cannot concur in the views of the plaintiff and his counsel that such consents -must be obtained before the time of the publication of the notice inviting bids to construct and operate the railway, nor in their claim that the statute requires the property holders’ consent to the mode and manner of the construction and operation of the street railroad. The terms of the statute do not, as we think, require this, and many reasons suggest themselves why such could not have been the intention of the legislature. Among these would be the limitations which 'that interpretation would impose on the power and right of the council to prescribe regulations for street railways and “the terms and conditions upon, and Ihe manner in which the road should be constructed and operated.” Certainly the council should be free at the time of the passage of the grant finally to determine the conditions which it should impose.
Our conclusions on the case generally as made by the plaintiff Sloane as a property holder are adverse to his right to any decree in his favor.
The other branch of the case presents the rights of the city to enjoin operations under a grant made by its council, since, under sec. 1777 et seq., that is the nature of the action which the tax-payer, on the refusal of the city solicitor, may maintain.
' In case the plaintiff’s contention is sustained, the order is to be such “as the equity and justice of the case demand.” (sec. 1779.) This indicates the scope and purpose of the inquiry by the court and suggests the rules by which the court is to judge of the effect of any irregularities or defects which the record of the proceedings of the council or the evidence may present.
We hold that the defendant company, when it made its application on August 17, 1891, though not organized by the election of directors, was capable of receiving a grant, and that its application and that of Gotlieb Zimmerman and others, filed at the same time and by the same person and referring each to the other, are to be considered together, and that when so taken they constitute a legal application, and, at all events, there is no question but that when the grant complained of was finally made to the defendant company, it was fully organized, and we are unable to see how, in' such case, the city or the plaintiff or any person could be injured by any such defect in the application as is claimed.
The statute provides in terms, for one notice only, namely, the publication of the “application” for at least three weeks, and, while it would certainly be proper and, perhaps, more orderly for the council by resolution or otherwise to prescribe the terms and general conditions upon which the railroad should be constructed and operated, and to make a definite order as to the form of bids, and as to the [678]*678time when bidding should close, yet, we think 'the power of the council to make a grant does not depend upon its following this course.
It is to be inferred from the provisions of the statute that the clerk may proceed to publish it. The statute itself prescribed the minimum time of the publication, the papers in which it shall be published, and the person to publish it. And we cannot see that the object contemplated by the legislature to be gained by the publication would fail of accomplishment if it be made for the time and in the manner pointed out without a direct authority of the council, especially if the council afterwards recognize it and act upon it. The statute requires the franchise to be granted, if granted at all, to the lowest bidder as to fares, but provides no way for the council to ascertain the lowest bidder except by such invitation for bids as may be inferred by the publication of the “application.” True, as we have heretofore held in the Simmons case, 4 Ohio Circ. Dec. 69, it would be competent for the council, for the purpose of securing good faith on the part of bidders, to require some security or proof that the bidder intended, if his bids were accepted, to build and operate the road, and it might prescribe a reasonable limit to the time when bidding should close (not within the time prescribed by the statute for the publication of the application), but the end and aim of all such regulations so far as the city is concerned, is to secure the proper use of its streets for the advantage of its citizens and the use of the railway at the lowest rates of fare reasonably attainable. If in the carrying out of rules and measures voluntarily self imposed by the city, through its council, there should be defects and irregularities, how could that result in wrong to the city itself, if the council, acting in good faith, should deem such defects immaterial and in-noxious as to affecting the final result sought?
It is to be noted that in the petition there is an entire absence of averment that the action of the council or of any person concerned was in any way in bad faith, and no suggestion is. made that but for the irregularities mentioned, any more favorable bids, or any other bids whatever would have been or would probably have been received. Any chances that bids more advantageous to the city or its citizens would have been secured from a more orderly proceeding must be ’ gathered, if gathered at all, by necessary or, at least, reasonable inferences arising from a consideration of the nature of the defects themselves.
It is to be borne in mind that this street railroad is not an improvement to be made by the city or to be by it paid for. It is largely a private enterprise, and the city’s interests in it are mainly to see that no improper use of, or obstruction in its streets occurs, and that the privilege of constructing the road shall be granted to the one who will agree to carry passengers at the lowest rates of fare. The rights of bidders under these provisions are not such as may be acquired by bidders for improvements, etc., undertaken by public authorities and to be paid for by them. When the council has ascertained that a certain bid offers the lowest rates of fare, the bidder has no absolute right to a grant. It is still wholly within the discretion of the council whether it will make a grant at all, and if so, on what terms and conditions (see State v. Bell, 34 O. S., 197, 198, and State v. Henderson, 38 O. S., 649, 650). But it is not the rights of bidders which the plaintiff is urging, but of the city.
The ordinance of September 9, establishing a street railway route, though proper, was not necessary. We do not regard it as such an ordinance as could not legally become operative until ten days after its publication, but it was competent for the council itself to fix the time when it should take effect. The ordinance provides that it shall “take effect and be in force from and after its passage and due publication.” Since the council might have provided that it should take effect upon its passage, its intention must determine when it did or was to' take effect. If “due publication” be construed as such publication as is required by law, and [679]*679no publication be required by law, there might be support for the claim that it1 took effect from its passage. On the other hand, it might fairly be argued that the council evidently supposed it such an ordinance as must be published, and if so, it would take effect ten days thereafter, and hence that must be deemed to have been the intention of the council. The ordinance must be held to speak from the time it legally took effect, and the acts therein provided should be done after that time. But in our view of the matter, it is unnecessary for us to determine, whether, under this ordinance, the time for bidding was voluntarily extended by the council to October 1, 2 or 12. There is no averment, proof, or necessary inference that any wrong or injury resulted to the city by reason of any irregularity of the council or the clerk, or by the form of notice, nor that any person was thereby prevented or dissuaded from bidding, or that the bid accepted was for higher rates of fare than otherwise it would have been.
Rush R. Sloane, in pro. per., and Colver & King, attorneys for plaintiff.
John F. McChrystal, City Solicitor of the City of Sandusky, Barton Smith and Good-.vin, Goodwin & Hull, attorneys for Railway Co.
The bond required was extra-statutory, and the requirement for it might be waived by the council which had exacted it, if it acted in good faith in so doing, and no rights were violated thereby. (See report of Simmons case, supra.) The notice for the special meeting of November 9 was sufficient. The rules previously adopted by the council for its government, to be available for the purpose for which they are invoked on this trial, should, probably, have been pleaded, but whether this be the true view or not, the rules were, by the requisite vote, suspended. This vote suspended the general rule of the statute regarding the reading of proposed ordinances and the rules of the council as to procedure as well.
We are at a loss to conjecture how the repeal of the ordinance of October 8 by that of November 9, which re-enacted it, can found any claim of injury by the city, especially if it be true, as it is urged, that the ordinance of October was void. If rights in the defendant company were thereby created, it and those succeeding to its rights might complain, but not the city. Certainly the city acquired no right under it which was not fully preserved by the ordinance of November 9th. Neither can we suppose that the provisions of the ordinance of November 9,1891, regarding packages, baggage and mails were injurious to the city or its citizens. These provisions did not, so far as is shown, increase the rate of passenger fare, and on the face of them these provisions would seem advantages in addition to those regarding rates of fare.
Our conclusion is that no case of injury or prejudice to the city or to its citizens has been made out.
The petition is therefore dismissed and the injunction dissolved. Some defects and irregularities in the proceedings were shown which might reasonably be regarded by the plaintiff as fatal to the" legality of the said grant and the proposed acts of the defendant company, and we find that the plaintiff had reason to and did believe his allegations in behalf of the city to be true. The costs, so far as they accrued from the commencement and prosecution of his action as a property holder should be paid by him. The costs on the other branch of the action should be apportioned, partly to him and partly to the city. As it would be ■difficult, at least, to ascertain the amount of the costs made on each branch of the petition, we adjudge that the plaintiff Sloane pay one-half of the entire costs, and that the residue be paid by the city of Sandusky. It is also ordered that a special mandate be sent to the court of common pleas of this county for execution for costs.