The opinion of the court was delivered by
Prоceedings were taken by the city of Argentine under which a portion of Metropolitаn avenue was graded, and the cost thereof assessed against the property
It is now insisted that the mayor and counсil acted without jurisdiction, but it is conceded that this is not the ground upon which the decision of the trial court was based. To sustain the ruling, the defendants in error rely solely on the contention that there was such a departure from the statutory requirements as to vitiate the proceedings, and therefore that the mayor and council had no jurisdiction to contrаct for the improvements, nor to make an assessment to pay for the same. They do not count on aqy mere irregularity, and concede that if the proceedings arе not absolutely void the judgment of the trial court should be reversed. They urge that it did not apрear that the petition which initiated the proceedings and upon which the council acted was sufficient.
Asa condition precedent to the making of the improvements, three-fourths of the property owners fronting on the street to be graded or improvеd must petition the council to make the improvement. In their attempt to establish a сause of action, the plaintiffs below introduced the petition, to which was attaсhed the certificate of the city engineer, stating that the petition was signed by three-fourths of the resident property owners of the property abutting on the street to be imрroved. They also introduced an ordinance providing for the grading of the avenue, whiсh recited that more than three-fourths of the owners of the real estate fronting on the avenue had petitioned the mayor and council to grade the same. A later ordinance, amending the former, recited the same fact, and all together abundantly еstablished the fact that the petition contained the requisite number of property оwners and was legally sufficient. It is true that the petition upon its face did not state that the рetitioners constituted three-fourths of the property owners, but this is not required.
Aside from the presumption that thе officers proceeded regularly, and that what ought to have been done was dоne, the plaintiffs themselves, by testimony which was received and acted upon without objеction, proved that the petition was regular and sufficient. Their testimony also showed а proper estimate by the engineer, that the work was ordered and performed, and that after the property had been appraised the cost had been equаlized, and apportioned upon the abutting property in accordance with thе petition and in the manner provided by law. The claim that the petition was so indefinite as to be void is without force, and the further contention, that the estimate of the engineеr is not in compliance with law, cannot be sustained. In it was an estimate of the number of cubic yards of earth to be removed, and the cost per yard for doing the work, as well as the total cost of the grading. It also included the sewer pipes that would be required, as well as the size and cost of the same. This was sufficient to meet the requirements of the stаtute. (Gen. Stat. of 1889, ¶ 825.)
There is the further contention that the appraisers were not aрpointed in the manner provided by law. Appraisers were appointed by resolution. They qualified and acted, and no charge is made that their work was not well done. It is contended that they should have been appointed by ordinance, but the statute does not specifically require the appointment to be made in that manner; and, even if this wаs a defect, it was at most an irregularity, and not sufficient to destroy the validity of the proceedings. We think that the testimony offered by the plaintiffs below was insufficient to maintain their action, and that the demurrer thereto should have been sustained, and judgment rendered in favor of the city. For this purpose the judgment will be reversed, and the cause remanded.