The order of the county commissioners, directing the improvement in question to be made, was entered on their records, under the act of April 5, 1866. 63 Ohio L. 115.
*521It is admitted that a majority of the resident landholders, having lands within two miles of the improvement, which were reported by the viewers for assessment, signed the petition before the order for the improvement was made.
The order, therefore, was valid under the act of 1866. But under that act only the lands thus reported by the viewers could be assessed to pay for the improvement.
It is also admitted that counting the resident landholders, wliose lands were subsequently added for assessment, in pursuance of the order of the commissioners of .January, 1870, a majority of all the resident landholders, whose lands were finally assessed, did not sign the petition.
The question therefore arises, whether the commissioners were authorized to rqake this addition of lands for assessment after the improvement was ordered.
The authority is claimed to be derived from the act of March 31,1868, and section 5 of that act, as amended May 9, 1868. S. & S. 675.
Section 2 of the act first named provides, that pending proceedings may, at any stage thereof, be made to conform to the-provisions of that act.
Amended section 5 provides as follows: “If at any time after making such final order (the order for the improvement), the commissioners shall find that there has been an omission of lots or lands within the territory sought to be assessed, or that there has been manifest injustice in the .apportionment of taxes, . . . they are authorized to make such addition and apportionment as they may deem just and proper.” . . .
Under this provision we think the commissioners were warranted in making the addition of the lands for assessment which they did make.
After the confirmation of the report of the apportionment committee, no additions can be made. Glenn v. Waddell, 23 Ohio St. 605. But until such confirmation we isee no good reason, if lands have been omitted which are benefited and ought to be assessed, why they may not be *522added, and thus made to bear their proper proportion of the cost of the improvement.
How the lands, in this case, came to he omitted does not appear; but the commissioners found them to have been omitted by the viewers; and this finding we are bound to' presume to have been warranted by the facts.
The lands omitted, to come within the meaning of the-above provision, must be “within the territory sought to he assessed ; ” and it is claimed, on behalf of the defendants in error, that the boundary of such territory is limited by the report of the viewers.
We do not think so. Construed in connection with other provisions, and in view of the scheme of improvement for which the statute provides, the terms “ the territory sought to be assessed,” embrace all the lands within two miles of the improvement which are benefited by it.
It is also claimed that, after the omitted lands have been added, a majority of the resident landholders, whose lands are finally assessed, must have signed the petition in order to render the proceedings valid.
No such limitation on the authority to make additions is found in the statute. The power is not called into exercise until the improvement has been ordered; and it may he, as was the fact in the present case, not until the work has been let. To deny the exercise of the power except at the risk of invalidating the previous proceedings, which were valid when done, would, in a great measure, defeat the objects which the power was intended to accomplish. Where the proceedings are carried on in good faith, we do not think the adding of additional lands under the power referred to, can affect the validity of the previous proceedings, whether such lands are owned by residents or non-residents.
It is contended, that giving to the act of 1868 this construction, and applying it to pending proceedings, is an interference with vested rights, and brings it in conflict with section 28, article 2, of the constitution.
That this claim is not well founded, we regard as already *523settled by the principles decided in Miller v. Graham, 17 Ohio St. 1, and in Burgett v. Norris, 25 Ib. 809.
The same principle is fully recognized by the Court of Appeals of New York in Howell v. City of Buffalo, 37 N. Y. 267.
Under the act of 1868 as amended, as well as under the act of 1866, the same description of lands are required to-be assessed to pay for the improvement, viz., the lauds benefited, and lying within two miles of the improvement.
The difference in the operation of the two acts, in this respect, is, that under the former the lands were ascertained exclusively by the viewers ; finder the latter, a power of supervision is invested in the commissioners, who, within the-two miles limit, are authorized to enlarge the basis of the-assessment by adding lands that may have been omitted by the viewers, but which are in fact benefited and ought to-be assessed.
Reference is made in the petition to a suit of Ellis et al. v. The Commissioners et al.
At the time the petition was filed in this case, that suit was still pending. "We deem it unnecessary here to refer to it, further than to say that it furnishes no grounds-to the plaintiffs below for the relief which they seek by their petition.
Judgment reversed, demurrer to the answer overruled,, and petition dismissed.