The question to be determined in the case, is whether the council did, in this case, order this improvement on the report and recommendation of the board of city improvements.
It appears that the board, on the 21st of August, 1863, adopted a resolution, “ That the clerk prepare and transmit to the city council an ordinance to grade and macadamize Parker street, from Ohio avenue to North Elm street.”
It appears that, on the same day, the city council took up the ordinance as coming from the board of city improvements, and passed it. The copy of the ordinance is in evidence as passed; it was adopted as coming from the board, and is precisely the ordinance which the board ordered the clerk to prepare and transmit to the council.
Are we to regard this ordinance as adopted without the report and recommendation of the board of city improve-*114merits, or upon such report and recommendation ? The proceedings of the council assume and represent that it was upon the recommendation of the board. The council did not originate the ordinance, but the board of city improvements did, as appears from the record of the proceedings of the city council in evidence. The same fact appears quite as clearly from the proceedings of the board. There is no reason to doubt that the ordinance was prepared and transmitted by the clerk as directed, and the council thus became possessed of it as shown by its proceedings. -
But the clerk did not authenticate the ordinance by his signature. The document accompanying the proposed ordinance contained a recommendation of it, but was not signed. But the committee of the council knew from whom it came. Now, shall we presume, after all, that this ordinance was not recommended to the council ?
There is nothing in this case to require the court to presume a fact involving a breach of duty on the part of the council and its committee, when the evidence is more consistent with the faithful performance of that duty-.
In the opinion of the majority of the court, the effect of the evidence is that the ordinance was reported, and the recommendation was made, and on that report and recommendation the council acted. When the board directed their clerk to prepare and transmit to the council an ordinance to grade and macadamize the street, they directed him to do that which, if done, would amount to a report of the ordinance and a recommendation of its adoption. The intention to report and recommend was declared by the board in its proceedings, and as the proceedings of the board were recorded, and, by ordinance, required to be kept open to the inspection of the city council, as well as to the rest of the public, it was itself a recommendation; and if reported to the council by its clerk, and the council acted on it, the statute was substantially complied with. And when we find the council professing to act upon a recommendation which we know that the board had made, *115we may safely take that profession to be true. There is no reason, that we can conceive of, for us to presume the contrary.
There is nothing in the case to induce the court to be more'strict in its construction of the statute in this, than in other cases.
There is no evidence of any attempt to discard the preliminary action of the board of city improvements. That board had signified in the most unqualified manner, and in the manner which was' usual, its recommendation of the improvement, and on that the council acted. The work has been done. The defendant has had the benefit of the improvement. The mere clei’ical omission of the clerk of the board to sign the document, transmitted probably by his own hand to the committee of the city council, is not such a substantial defect as to annul the proceedings for want of jurisdiction. The requisition of the statute was substantially complied with.' It is not a condition precedent to the action of the council that the recommendation or the report shall be signed by the clerk of the board. The council are not to act “ except on the report and recommendation” of the board. No form of report or recommendation is prescribed. The board by preparing and delivering the ordinance to the city council could intend nothing less than to report it and recommend its passage.
An ordinance was not void because it was not signed by the president of the council, if it were actually passed and recorded. (11 Ohio St. 101.) That was an ordinance for annexation, which was not signed by the president of the council. “ Though it be true that the statute directs him to authenticate all ordinances by'his signature, it does not follow that his signature is essential to its validity.” (Ib. 103.) ■ - ,
The provision requiring that ordinances shall be authenticated by the signature of the presiding'officer and clerk of the council is contained in section 100 of the municipal *116code, page 84, being the same provision contained in the act of May 8, 1852, section 102, Disney’s Ord. 195, 184.
There is a recognized distinction between a case like this and those cases in which private property is condemned for public use. The effect of setting aside these proceedings is to relieve the defendant from his just share of the costs of a local improvement to his property, and cast it upon the other tax payers of the city. This we are not willing to do unless upon substantial grounds. A mere clerical defect in the evidence on which the council acted, when the substantial thing existed which the statute required, does not warrant a denial of their jurisdiction in the case.
A majority of the court are of the opinion that the ordinance was valid, and that the plaintiff is entitled to a judgment for the amount of the assessment.