This is a suit by tbe plaintiffs, who are contractors, to recover an assessment against a property owner for grading and paving Front street, on which his property abuts. The objection the defendant makes is, that the ordinance under which the work was done was passed without the previous report and recommendation of the board of city improvements.
The bill of exceptions shows that the evidence on this point consists of a transcript from the records of the board of city improvements, together with the oral testimony of Jeremiah Kiersted, to the introduction of the latter of which the defendant objected, and the objection was overruled and the testimony received. The court found for the plaintiff; motion for a new trial was overruled and exceptions taken, and judgment was rendered for the plaintiff.
The whole case depends upon the admissibility of the evidence of Mr. Kiersted, referred to, as all the other necessary steps are admitted to have been taken.
The transcript from the alleged proceedings of the board of city improvements is as follows:
“ Office of the Board of City Improvements, 1
City Buildings, Cincinnati, Jan. 8,1861. J
(i At a joint session of the board of city improvements and committee of public improvements of the city council, held this day — in attendance, John Horton, Frederick Stagge, Jeremiah Kiersted, city commissioners, and A. W. Gilbert, city civil engineer; committee of public improve*217ments of'the city council, present J. M. Noble, chairman.
“In the absence of the president, Mr. Kiersted was called to the chair, when the following papers referred to the joint board, were taken up and thus disposed of: The petition of Lewis G-lenn and other property holders on East Eront street, in the Seventeenth ward, asking to have said street graded and paved with bowlder stone. On motion, the prayer of the petitioners was granted, and on motion of Mr. Kiersted, the clerk was instructed to prepare and transmit to the city council an ordinance to grade and pave with bowlder stone Eront street from Washington street to the east line of the city of Cincinnati. The remonstrance of Joseph Cox against the paving of L’Hommedieu alley between Plum street and Central avenue was referred to the commissioners.
“ The joint session then closed; and the board of city improvements proceeded to regular business. The minutes of the preceding meeting were read and approved.”
Mr. Kiersted testifies positively that the board of city improvements ordered an ordinance to grade and pave Eront street to be sent to the city council, which afterward passed it; that the ordinance originated in the board of city improvements, and was by it recommended to the city council; that he was particular about*it, he being one of the city commissioners and a member of the board, as the work Avas in his district; that the recommendation by the board was made on a little slip of paper, which was attached to the ordinance and accompanied it; and that if the original ordinance could be found, the slip of paper referred to would be found also, if not detached.
The only question presented by the record in this case is, whether the action of the board of city improvements in the premises can be proved by parol evidence. As will be seen, the record of the action of the board contains no evidence whatever of the alleged recommendation by the board of the passage of the ordinance to grade and pave, *218under which the work was done. Waiving this, however, this case differs wholly from the case of Fisher v. Graham, ante 113, for there the record of the board of city improvements showed the due recommendation of the ordinance and direction to the clerk to prepare and transmit the ordinance, which he did, and a due report in writing, though not signed, by him. The report and recommendation of the board to the city council to do this work is jurisdictional, because they are conditions precedent to the exercise of the authority to pass a valid ordinance for the improvement, or for the assessment on the property adjoining. This has been frequently held in this court. See Walker v. Potter, 18 Ohio St. 85.
The city council could not originate the action taken. That must be done by the board of city improvements. No such work as this “shall be ordered or directed by the city council, except on the report and recommendation of the said board, * * * who shall report from time to time to the city council. * * * The city council shall take such action thereon as may be deemed proper.” The board of city improvements is not a corporation of itself, but is a co-ordinate branch of the city government, charged with duties of the greatest moment. By the very constitution of the board, as of most public or corporate bodies, it is necessary, from the highest motives, to keep a record of its proceedings* How else could the vast interests of our citizens, confided by law to the care of this board, be properly protected or its duties be properly discharged ? Accordingly, by the ordinances of the city, the plan of keeping a record was adopted by having a clerk of the board, who is charged with keeping a correct record of all the proceedings of the board, and directed to prepare such ordinances as appear in proof in this case, and to report in writing. Especially is it indispensable that such fundamental action of the board as consists of recommendations and reports of all such improvements as the one in this case, should appear on the record of the board to be made ' *219and directed, and this evidence only is competent. It is necessarily exclusive of any other proof, because the facts to be proved by it are jurisdictional.
"We should regard it as a dangerous principle to allow oral proof of such important proceedings, or that these records should be supplemented by oral testimony, as it might happen years after the alleged action was had, and would, therefore, be uncertain and unsatisfactory. The certificate of the clerk of the board that such action was had is not the only method of proving that fact, for the law does not exclude other methods of proving it The production of the record itself hy the board to the council would be sufficient. But there must be sufficient proof of such action, and a sufficient report to the council, which can only be by showing from the record of the board that the appropriate action was had. Nothing in these respects can be presumed favorably. Indeed, the very absence of any record of action by the board in the premises, it appearing that they had the matter under consideration, raises a presumption that it either was deemed best to take no action at all, or else that the sentiment was unfavorable to the project.
The testimony of Mr. Kiersted ought to have been rejected by the judge at Special Term.
A majority of the court think that we have gone quite to the verge on this question in the ease of Fisher v. Graham, ante 113.
Judgment reversed and cause remanded.