author: Jones (Oliver B.), J. Jones (E. TI.), P. J.,

text:
    REFERENDUM WITH REFERENCE TO THE OPENING OF A NEW STREET.
    Court of Appeals for Hamilton County.
    Laura B. McFarlan v. City of Norwood and Sanford A. Headley, Solicitor for Said City.
    Decided, June 19, 1916.

      Municipal Corporations — Injunction Prayed Against Opening of a New Street — Passage of an Ordinance to Appropriate the Land Necessary is an Implied Repeal of a Previous Appropriating Ordinance — Referendum should he on the Ordinance and Not on the Preliminary Resolution.

    1. In proceedings for the appropriation of land by a municipality, the ordinance to appropriate is the controlling act, and it and not the preliminary resolution is the measure on which a referendum should be taken where the referendum vote of the people is desired.
    2. Where two or more ordinances have been passed by a municipal council appropriating strips of land to open a street between subtantially the same points, such strips not being identical but in part overlaying each other, the fact that the earlier ordinance has not been expressly repealed would not be sufficient reason to prevent proceedings under the last ordinance.

      Hunt, Bennett <& Utter, foT plaintiff.
    O. F. Divyer, Solicitor of Norwood, and Sanford A. Headley, contra.
   Jones (Oliver B.), J.

This is an action heard on appeal, wherein plaintiff, as the owner of certain real estate in the city of Norwood under-a lease with the privilege of purchase, seeks to enjoin the city of Norwood from proceeding to appropriate a strip of land through same for the purpose of opening a street called Crown avenue, between Station avenue and the Montgomery pike.-

A petition has been filed by the city of Norwood in the court of common pleas against this plaintiff and the owner of the fee of said land, asking the court to cause a jury to be impaneled to make inquiry into and assess the amount of compensation to be paid by the city of Norwood for the strip of land appropriated by an ordinance of said city passed November 10, 1915, and that upon payment of the amount so assessed possession of the property so appropriated be awarded to said city of Norwood.

It is sought in this proceeding to secure a permanent injunction against the city from maintaining and prosecuting said action in the court of common pleas. Such proceedings in injunction have been held to be a proper method of procedure, rather than seeking to make a defense in the appropriation proceeding itself. • Railroad v. Youngstown, 5 C.C.(N.S.), 332; Railroad v. Greenville, 69 O. S., 487.

One of the principal grounds upon which this action is based by plaintiff is that numerous resolutions and ordinances seeking to open Crown avenue have been from time to time passed by the city of Norwood, which remain unrepealed upon its records. These resolutions and ordinances provided for the opening of Crown street or avenue on similar but not on identical lines with that now sought to be carried out.

The first was an ordinance to condemn and appropriate, passed by the council of the village of Norwood, August 11, 1892; then a resolution of the city of Norwood dated July 18, 1904, declaring the intention of said city to appropriate certain land for the opening and extending of Crown avenue. This was followed by an ordinance of February 20, 1905, appropriating a similar strip for the same purpose. These ordinances and resolutions seem to have been repealed by a resolution or ordinance of October 16, 1905; and December 7, 1908, a resolution was passed by the council of the city of Norwood, declaring its intention to appropriate a strip of land through the same property for the purpose of opening and extending said Crown avenue from Station avenue to Montgomery avenue, and this resolution was followed by an ordinance to appropriate the same strip of land, passed July 6, 1909. On June 21, 1915, a resolution was passed by the council of the city of Norwood, declaring its intention to appropriate for street purposes for the extension of Crown avenue a strip of land fifty feet wide, being part of that owned by plaintiff; and on November 10,1915, an ordinance to appropriate tbe same property was passed, with instructions to tbe solicitor to apply to a court of competent jurisdiction to have a jury impaneled to make inquiry and assess the compensation to be paid for said property. The proceeding which it is sought' to enjoin was brought under this last named resolution and ordinance, by the filing of the petition therein on November 24, 1915, in the court of common pleas, as above stated. Afterwards, on December 20, 1915, the city council of Norwood passed an ordinance repealing the resolution of December 7, 1908, and on the same day passed another ordinance repealing the ordinance of July 6, 1909.

Plaintiff contends that the condemnation proceedings in the common pleas court should be enjoined because of the conflicting resolutions and ordinances of the city of Norwood, which provided for several different strips of land which in part overlay each other and whose lines were not the same, and that the solicitor had no power to proceed under the last ordinance until all the previous ordinances and the preceding resolutions had been duly repealed; and that the repeal under the ordinance of December 20, 1915, of the previous resolution of December 7, 1908, and ordinance of July 6, 1909, would not be effective because passed after the filing of the petition in the common pleas court under the final appropriation ordinance.

We do not deem these objections to the proceeding important. It is true that it was held in Grant v. Hyde Pewit, 67 O. S., 166, that condemnation proceedings begun under municipal legislation could not be affected by legislation subsequent to the filing of the petition in such proceedings. In that case the village of Hyde Park undertook to limit the condemnation proceedings with reference to a particular grade of the street about to be opened. In the instant ease, granting tliat the subsequent repealing ordinance might not be considered, the solicitor had brought his proceeding under the last condemnation ordinance, that of November 10, 1915. While at that time the ordinance of July 6, 1909, had not been explicitly repealed, in our opinion the passage of the later ordinance constituted an implied repeal. But even if that is not the case, the solicitor was at least authorized to proceed under the last ordinance, and the fact that there might be a valid subsisting ordinance for some other condemnation upon the books, would not be a reason for staying proceedings under the last ordinance.

The other and main reason urged on behalf of plaintiff for restraining further proceedings in the condemnation ease is that a referendum vote, upon the ordinance to appropriate under which such proceedings are brought; has been sought and unless interfered with will be held at the next general election.

An act providing for the initiative and referendum in municipal corporations was passed by the General Assembly May 31, 1911 (102 O. L., 521), although at that time no distinct provision for it appeared in the Constitution. The amendments to Article II of the Constitution adopted September 3, 1912, made detailed provision for initiative and referendum as part of the legislative power of the state, and in Section 1/ reserved similar powers to the people of each municipality to be exercised “in the manner now or hereafter provided by law. ’ ’ In this way the validity of the act found in 102 Ohio Laws, 521, was recognized, and the amendments of Sections 4227-2 and 4227-3 (103 O. L., 211; 104 O. L., 239) were authorized.

By virtue of this legislation the people of the municipality become, with its council, an'essential part of the law-making power, and by the referendum may participate in all municipal legislation. Such participation is controlled and directed by this provision of the Constitution and these statutes (Shyrock v. Zanesville, 92 O. S., 375); and the rights thus given to the people should be fully upheld and protected by the courts.

On December 9, 1915, there was duly filed with the auditor of the city of Norwood a referendum petition signed by more than ten per cent, of the electors of the city of Norwood, ordering that said ordinance to appropriate land for the extension of Crown avenue, passed November 10, 1915, be submitted to the electors of the city of Norwood for their approval or rejection. It is agreed that such referendum petition was duly filed within the time and in the manner and form provided by law for referendum petitions as to said ordinance, and that a certification thereof was duly made to the deputy supervisors of election for Hamilton county, Ohio, for the holding of such referendum control by legislative action, such powers to be exercised in November, 1916.

The Constitution of Ohio as amended September 3, 1912, provides in Article II, Section 1/, as follows:

“The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative actions; such powers shall be exercised in the manner now or hereafter provided by law. ’ ’

At the time of the adoption of this section of the Constitution the act of May 31, 1911 (102 O. L., 521), in Section 2, provided as follows:

“Any ordinance, resolution or other measure of a municipal corporation, granting a franchise creating a right, involving the expenditure of money or exercising any other power delegated to such municipal corporation by the General Assembly, shall be submitted to the qualified electors for their approval or rejection in the manner herein provided, if within thirty days after the passage or adoption of such ordinance, resolution or measure by the council, there be filed with the clerk of such municipal corporation, a petition or petitions signed by fifteen per cent, of the qualified electors of such municipal corporation,” etc.

This act was carried into the General Code as Section 4227-2; and as such was amended April 17, 1913 (103 O. L., 211), the first paragraph being as follows:

“Any ordinance or other measure passed by the council of any municipal corporation shall be subject to the referendum except as hereinafter provided. No ordinance or other measure shall go into effect until thirty days after it shall have been filed with the mayor of such municipal corporation, except as hereinafter provided. ’ ’

And by the same act Section 4227-3 was amended so that the first paragraph read as follows (103 O. L.; 212) :

“Whenever the council of any municipal corporation is by law required to pass more than one ordinance or other measure to complete the legislation necessary to make and pay for any public improvement, the provisions of this act shall apply only to the first ordinance or other measure required to be passed, and not to any subsequent ordinances and other measures relating thereto.”

On February 16, 1914, Section 4227-2 was again amended (104 O. L., 239), but the changes made therein are not material to the matter under consideration.

It is admitted by the solicitor of the city of Norwood that the matter of appropriating land for the opening of Crown avenue is a subject which, under proper proceedings, should be submitted to a referendum of the voters of the city, but it is contended by him that such a referendum has already been had under the resolution of council passed June 2, 1915, declaring its intention to appropriate for street purposes for the extension of Crown avenue and, therefore, under the provisions of Section 4227-3 a referendum of the ordinance of November 10, 1915, to appropriate said land for the extension of Crown avenue can not be had.

It is agreed that a referendum election upon said resolution of June 21, 1915, was held at the regular November election in 1915, resulting in a majority vote in favor thereof, the question submitted being, “Shall the resolution of the city of Norwood entitled ‘a resolution declaring its intent to appropriate for street purposes certain real estate for the extension of Crown avenue, passed June 21; 1915;’ be approved.”

It is further urged that one of the signers under the referendum petition on said resolution was T. J. McFarlan, the husband of the plaintiff, Laura B. McFarlan, and the solicitor claims that because of that fact the plaintiff is estopped from bringing this action. There is nothing in the proof submitted, nor in the record, to show that T. J. McFarlan in any way represented the plaintiff in regard to said referendum, or, for that matter, in regard to this property.

Plaintiff, however, contends that the resolution of council declaring its intent, was merely a preliminary resolution and was not the proper subject of a referendum vote, and that therefore the referendum election upon it held in November, 1915, was without effect and in no way precludes or interferes with the referendum election which has been petitioned for to be held November, 1916, upon the ordinance to appropriate. This requires a consideration of the law with reference to the appropriation of real estate by municipal corporations.

The general appropriation laws as found in the Revised Statutes appeared in Chapter 3, Division 7, Title XII, and Section 2235, R. S., provided that the council should order by yea and nay vote a resolution prepared declaring such intent and defining the purpose of the appropriation, and setting forth a pertinent description of the property. Immediately upon the introduction of such resolution and before its passage the mayor was required to cause written notice to be given to the owners or their agents. of the property sought to be appropriated, such notice to be served by an officer and return made in the manner of service of summons in civil actions, and in case neither owner nor agent could be found notice by publication was provided for. No action was to be taken upon the resolution until such notice was given and then upon its passage the yeas and nays were taken; and after its passage provision was made for an application to the court to determine the amount to be paid for the property so taken.

In the street chapter, however, Chapter 13, Division 8, Title XII, Section 2642, R. S., provided as follows:

“When it is deemed necessary by the council of any municipal incorporation to open, extend, straighten, narrow, or widen any street, alley or public highway within the limits of such corporation, the council shall provide by ordinance for the same; such ordinance shall briefly and' in general terms describe the property, if any, to be appropriated for such purposes; and the proceeding for such appropriation shall be as provided in chapter three, division seven, of this title.”

Under the law as it then stood the courts held that the proper method to appropriate property for- street purposes was hy ordinance, and that a preliminary resolution as required under R. S. 2235 was not necessary. Tyler v. Columbus, 6 C. C., 224; Krumberg v. Cincinnati, 29 O. S., 69; Caldwell v. Carthage, 49 O. S., 334; Longworth v. Cincinnati, 23 Bul., 100; Strauss v. Cincinnati, 24 Bul., 422.

The change in the municipal code which has been carried into the General Code of Ohio has retained in Chapter 3, Division 3, Title XII, Section 3715 (which is practically the same as R. S. 2642), its language being as follows:

G. C., Section 3715. “When it deems it necessary the council may open, straighten, alter, divert, narrow or widen, any street, alley or public highway within the limits of the corporation. The council shall provide by ordinance therefor, which shall briefly, and in general terms, describe the part, if any, of the street, alley or public highway to be abandoned by reason of such change thereof, and the property, if any, to be appropriated for such purposes. The proceeding for such appropriation shall be as provided for the appropriation of property for other municipal purposes in this title.”

The provision in the appropriation chapter, and Chapter 1, Division 3, Title XII, instead of continuing merely a resolution of intent to appropriate, has provided in Section 3679 for passage of such a resolution declaring the intent to appropriate of which one reading only is necessary under Section 3680, and after its passage notice is required to be served; and then after notice, council passes an ordinance which requires a two-thirds vote directing such appropriation to proceed. It is not until after the passage of the ordinance to appropriate that the solicitor proceeds to make application to the court. The passage of the ordinance effects the appropriation. The proceeding in court is merely to determine the compensation to be paid the owners. Under the present form of the statute the resolution declaring the intent is merely preliminary. The municipality is not committed to the act of appropriation until the passage of the ordinance.

The law in regard to street improvement furnishes, by analogy, some light upon this question. In making a street improvement the first preliminary step provided for is a resolution de- . daring the necessity of the improvement (G. C. 3814; R. S. 2304), and after service of notice, in order that property owners might be advised and might file any claims for damages they might suffer by reason of the improvement, if the council decide to proceed with the improvement it passes an ordinance for the purpose. (G. C. 3825; R. S. 2316.)

In the case of Cincinnati v. Seasongood, 46 O. S., 296, it was determined that the law in force at the time-of the passage of the ordinance to -improve fixed the rights and liabilities of the owners of the property and of the city in regard to the manner of the assessment.

Upon the same reasoning it should be held that the ordinance to appropriate is now the controlling feature of the legislation for the opening or extension of a street; and that the resolution declaring the intent, which precedes it under the present statute, must be deemed merely preliminary. It has been held in Long v. City of Portland, 98 Pac. (Ore.), 1111, that the referendum as found in Oregon applying to municipal legislation does not include preliminary matters or transient orders. If a referendum vote is to be taken upon the question of the opening of a particular street, the ordinance to appropriate is the step which should be submitted to a referendum, and any referendum taken upon the resolution or previous preliminary steps would not prevent such referendum upon the ordinance. In re Initiative Petition No. 2, New Jerusalem Proposition, 109 Pac. (Okla.), 823.

This conclusion is strengthened by the wording that has been used in the different forms of the referendum statute. It will be observed in the original form of Section 4227-2 as found in 102 O. L., 521, the word “resolution” was included in addition to “ordinance or other measure” throughout the section in its different parts, while in the statute as found in 103 O. L., the words “ordinance or other measure” are used almost entirely to the exclusion of the word “resolution;” and in the act of 104 O. L., 238, the word “resolution” does not appear. Section 4227-3, upon which defendant relies, subsequently uses the word “ordinance” again and again. And as the case of Krumberg v. Cincinnati and the other cases construe G. G. 3715 as requiring an ordinance before a street can be opened, it would seem that it is the “ordinance” rather than the “resolution or any other measure” that should be submitted to a referendum. Indeed, the action of council is usually either by resolution or ordinance, although it may act by motion or by-law or possibly by other form of procedure. Great difficulty is frequently experienced in determining just whether a particular action is a resolution or an ordinance. In' determining this question we must rely generally upon the form of the statute and the definition there provided.

The evidence in this ease shows that while a favorable referendum vote was taken upon the resolution, that a referendum petition has been duly filed under an ordinance to appropriate, has been received by the proper authorities and filed with the election board, and will be voted upon at the next election. To permit this election to proceed will cause only a few months’ delay, and considering that the project of opening this street has been pending in the municipality since 1892, and has never reached the court until in this present proceeding, although numerous resolutions and ordinances stood for years unrepealed on the village record, it would seem better to permit the election to proceed and thus test the desire of the people under the referendum vote, which appears to be taken at the proper stage on the municipal legislation. To hold otherwise would curtail rather than extend the right of referendum which has been obtained for the people under the recent amendment to the Constitution and the legislation had thereunder, which should be favored rather than restricted.

Judgment will therefore be entered for the plaintiff as prayed in the petition.

Gorman, J., concurs; Jones (E. H.), P. J., dissents in a separate opinion.

Jones (E. TI.), P. J.,

dissenting.

The question here is one of statutory construction. The words “ordinance or other measure” found in Sections 4227-2 and 4227-3, G. C., include the resolution which we all agree is the first step in a proceeding to condemn property for street purposes.

The electors of the city of Norwood have voted on the resolution adopted by council as the first legislative action in the Crown avenue matter, and there is no authority in law for a vote on the ordinance or any subsequent measure in connection with that improvement. On the contrary, Section 4227-3, G. C., expressly forbids more than one vote and that on the “first ordinance or other measure required to he passed.”

If there can be any doubt or ombiguity about these sections, 4227-2 and 4227-3, when standing,alone, it is removed when we study their language, and especially that of the latter in its application to the initiative provision found in Section 4227-1. This section provides for an initiative petition proposing “an ordinance or other measure” to be submitted for approval or rejection. Section 4227-3 says that—

“the provisions of this act shall apply only to the first ordinance or other measure required to be passed and not to any subsequent ordinances and other measures relating thereto.”

As the resolution is a necessary step and the first step required to be taken in a street matter such as this, it follows that it alone would be initiated, and it only submitted to the voters; and that after it was successful at the polls all other necessary measures would follow without initiative or referendum.

Under the law as construed by the majority opinion however, the matter could again be brought before the voters at a subsequent election by a referendum vote on the ordinance notwithstanding the fact that the people had already ordered the im- ’ provement by a majority vote. In my opinion this is what the decision in this ease leads to, and I am quite sure such is not the law, and that in a proceeding to open a city street the initiative and referendum provisions of our- code only operate upon and apply to the preliminary or first required step, viz., the resolution.


source: Caselaw Access Project

author: ITouck, J.

license: Public Domain

text:
    SURETY RECOMPENSED FOR. COSTS.
    Court of Appeals for Licking County.
    Joseph N. Pugh, as Receiver of The Homestead Building & Savings Co., v. The American Bonding Co.
    Decided, March Term, 1916.

      Successor in the Trust Bound by Agreement Previously Entered Into by Order of Court — Fund Bound for Expenses of Surety.

    A clause in a contract of suretyship, procured by order of court by a receiver, wherein it was agreed that the surety should be saved from costs and expenses, is binding on the successor of said re- ° ceiver and the fund in his hands is liable thereunder, and the claim does not lie that the said agreement was entered into by the original receiver in his individual capacity.

      Kibler & Kibler, for plaintiff in error.

      Flory & Flory, contra.
   ITouck, J.

This cause is in this court on error. It is sought by this proceeding to reverse .the judgment of the common pleas court obtained by the defendant in error, the plaintiff below, against the plaintiff in error, who was the defendant below.

The material facts in this case necessary to determine the rights of the parties hereto are as follows: George P. Webb, the then receiver of the Homestead Building & Savings Company, was authorized by the court by whom he was appointed receiver to bring suit and attach certain property reputed to belong to one Mary J. Lingafelter, which he did, and gave bond with the American Bonding Company as surety, which bond was issued to him on his written application and contract with said bonding company. After, the termination of said suit in attachment, which terminated in favor of Mary J. Lingafelter, the said Mary J. Lingafelter brought suit against the plaintiff in error herein, being the successor of the said George P. Webb, as reeeiver aforesaid, the said George P. Webb having departed this life, and the American Bonding Company, for damages growing out of said suit in attachment. On motion made to the court the said Mary J. Lingafelter was required to elect which defendant she would prosecute said suit against, and she elected to prosecute the same against the bonding company. The suit terminated in favor of the bonding company. The American Bonding Company then filed an intervening petition seeking to recover from the funds in the hands of said receiver the attorney’s fee and expenses incurred in defending said suit. The court below ordered and directed the receiver to allow said claim to the amount of $432.25, with interest. To this order and judgment of the court below the plaintiff in error prosecutes error to this court asking a reversal of said judgment.

Plaintiff in error contends, first, that the contract for the bond in question was not the contract of Joseph N. Pugh, receiver, but was the contract of George P. Webb, as receiver. Second, that the agreement to indemnify the bonding company against litigation, costs, attorney fees, etc., was upon Webb only, and could not bind the funds in his hands as such receiver. Third, that there was no liability on the bond.

It is earnestly contended by counsel for plaintiff in error that because Webb, as receiver, made application for the surety bond in question that any agreement made by him and any liability incurred thereby does not bind his successor, Joseph N. Pugh, as receiver. We can not agree with counsel in this. A receiver is simply the creature of the court, and acts for the court, and to all intents and purposes; so far as the receivership is concerned, is the court to that extent; and the mere fact that a receiver dies, or resigns, or is removed by the court and a new one is appointed, in no way lessens the legal liability of, or in any way affects or lessens the lawful acts done by his predecessor under authority of and direction of the court, which fully appears in the instant case. The claim that the liability, if any exists, is a personal one against Webb, and does not bind the funds in the hands of the receiver, is not well taken. The surety bond in question was secured by order of the court. The application and contract for the same was made with the bonding company by Webb, as receiver, and in the interest of and for the benefit of the trust estate, and not in the interest of or for Webb personally. The application was made by Webb as receiver, and the bond was issued to him as such, and his successor and the trust estate is bound thereby in just the same degree and to the same extent as if Webb had continued as such receiver.

An examination of the application and contract made by the receiver, Webb, clearly shows an express contract whereby the receiver agrees to save the bonding company from any damages, costs, etc., as will fully appear in paragraph four of said contract, which is as follows:

“That said applicant [Webb] hereby further agrees in the event of a failure to comply with any or all of the covenants, conditions and agreements hereinbefore expressed, to substitute other sureties on said bond within fifteen days after notice of such non-compliance or default has been given to said applicant, by the said company. Any damages, costs or expense which said company may sustain, or incur, or be put to, including traveling expenses, costs for investigations, court costs and lawyers’ fees, in obtaining a release or .discharge from said bond as surety thereon, shall be borne and paid by said applicant, when and as said company’s liability for the same shall accrue.”

In the light of the provisions, conditions and terms of the said contract between Webb, as receiver, and the bonding company, and the law governing receivers, their rights and liabilities upon contracts made in the interest of the trusts they represent by and under the authority and direction of the court appointing them, and in the light of the law governing the rights of principal and agent, we can arrive at but one conclusion, and that is that the judgment of the court below is right; and a majority of the court being of that opinion, the judgment of the court of common pleas is affirmed.

Shields, J., concurs; Powell, J., dissents.


author: Powell, J.

text:
    LIABILITY OF MUNICIPALITY FOR INJURY FROM EXPLOSION OF A PEANUT ROASTER. ON THE STREET.
    Court of Appeals for Licking County.
    Edward M. O’Grady v. City of Newark.
    Decided, March Term, 1916.

      Municipal Corporations — Peanut Roaster Explodes on street — City Liable for Negligence to One Injured Thereby.

    A cause of action is stated by a petition alleging that through the negligenee of the defendant municipality the operation was permitted of a peanut roaster on the streets of said city, which said roaster exploded and a part thereof struck plaintiff to his injury; and where there is evidence tending to establish the truth of said allegation, it is error to arrest the case from the jury and give judgment for the municipality.

      Frank A. Bolton, for plaintiff.

      Ralph Norpell, City Solicitor, contra.
   Powell, J.

Tliis action was commenced by the said plaintiff, who is now plaintiff in error, to recover damages from the defendant for alleged negligence in the care of the streets and public square of the city of Newark, in that the city allowed upon its streets, and near the public square of said city, a certain peanut roaster which, on the 31st day of August, 1911, exploded, and a part of which, after such explosion, struck the plaintiff, to his injury.

The petition, by proper averments, charges negligenee upon the part of the defendant in permitting such dangerous implement to be upon the streets of such city, and charges that the city is liable for such negligenee.

Issue was joined by answer to the amended petition filed in the ease, in which the defendant admits certain averments of the petition; and after such admission denies each and every allegation contained in said petition, and being in its nature a general denial of the material averments of the petition. A second defense is set out in which it is claimed that the plaintiff made a settlement with the owners of the peanut roaster for damages received by reason of such explosion. To this, a reply is filed.

The case came on for trial, and the plaintiff’s evidence was presented to the jury, when a motion was made by counsel for the defendant to direct the jury to return a. verdict in its favor, which motion was sustained, and a verdict was returned accordingly. A bill of exceptions was taken embodying all the testimony and the instructions of the court, and the case was brought into this court for review.

Upon examination of the record, this court is of the opinion that the action of the court in thus directing a verdict was erroneous; that plaintiff’s amended petition sets forth a cause of action in his favor as against the city; that there are sufficient averments in said amended petition which, if found to be true, would entitle him to a verdict at the hands of a jury, 'and that the court erred in directing a verdict in favor of the defendant. In other words, the court is.of the opinion-that there is sufficient evidence shown by the record in favor of the plaintiff to entitle him to have the same submitted to a jury, and that the court should have overruled the motion of defendant asking that a verdict be directed in its favor. For this reason, the judgment of the court below will be reversed, and the ease remanded for a new trial.

Shields, J., and Houck, J., concur.


author: Gorman, J.

text:
    ENGINEER. KILLED BY PASSING TRAIN WHILE OFF HIS ENGINE.
    Court of Appeals for Hamilton County.
    Virginia M. Flannery, Administratrix, v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company.
    Decided, July 12, 1916.

      Negligence — Locomotive Engineer Not a Trespasser — When Momentarily off His Engine on Another Track — Duty of a Railway Company Toward One on Its Track Before an Approaching Train.

      1. A locomotive engineer, who leaves his engine for a few moments and walks a short distance to another track where he sits down on the end of a tie, does not thereby become a trespasser upon such other track nor cease to be acting in the course of his employment.
    2. Railways will be held to at least as high a degree of care in the avoidance of injury to human beings as in the case of live stock trespassing upon their right-of-way.
    3. Evidence that the engineer of the train, which killed the decedent while running at very high speed, failed to blow his whistle as soon as he discovered the decedent, is sufficient to send the case to the jury.

      Sanford A. Headley and Charles Sawyer, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, contra.
   Gorman, J.

This is a proceeding to reverse a judgment of the Superior Court of Cincinnati. At the close of all the evidence offered by the plaintiff and defendant below the court, upon a motion by the defendant, arrested the case from the jury and instructed a verdict for the defendant. It is claimed that the court erred in so doing.

The facts brought out by the evidence necessary to be set out in order to show error, are as follows:

Edward Flannery on the 9th of November, 1913, was in the employ of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company as an engineer, engaged in the switching of cars in the company’s- yards at' Sharonyilie in this county. About three o’clock in the afternoon, while he was engaged in switching a cut of cars containing some interstate cars, his engine passed the switch from the siding to the lead track and Flanneryclimbed off the engine, walked a short distance east from his locomotive and sat down on the end of a tie on the westbound main track, at a point Avithin the yard limits of the defendant company. There was a conflict of evidence as to Avhether or not he threw a switch before he sat down. While sitting on the end of the tie on the westbound main track he was struck and killed by passenger train No. 19 from Columbus, which was an hour and a half late and running at a speed of between sixty and eighty miles an hour.

The defendant company has a double main track through the village of Sharonville — one known as the westbound track and the other as the eastbound track. The Sharonville yards of defendant company are located along the west side of these two main tracks, extending for a distance of a mile or more. There were employed in and about the yards, at the time Flannery was killed, about one hundred and fifty men who frequently used the yard tracks and also the main tracks in crossing and re-crossing, during all hours of the day, while engaged in their occupations as employees of the railroad company. There was no speed limit prescribed by rule or otherwise for trains running on the main tracks alongside of the yard. There was no rule or direction given to engineers running through the yards on the main tracks to keep a lookout for men Avho might be on the tracks Avithin the yard limits.

Flannery, from the position where he was sitting, could have seen the engineer on the train which killed -him at a point at least seven hundred feet east of the point where he was sitting. There is a conflict of testimony as to the length of time Flannery sat on the track, one witness testifying that he sat there for a minute, and another that he sat there for a period of from five to eight minutes. The testimony is undisputed that Flannery was getting up off the track when he was struck by the engine of the fast train.- There was a conflict of testimony as to whether or not the engineer blew his whistle before he struck Flannery and after he saw' him. The engineer testified that he did not see Flannery until he was within one hundred and fifty feet of him, and that he then did everything he could to stop his train.

The evidence discloses that the engineer could have seen Flannery from the cab of the engine at least seven hundred feet east of the point where Flannery was killed.

The deceased left a widow and three children, and the action was brought for their benefit under the statute to recover for the wrongful death of the husband and father.

The sole question submitted to this court is whether or not the trial court erred in arresting the case from the jury.

The fact that the decedent was engaged in interstate commerce, in that he was switching ears used in interstate commerce, brings his case within the federal employer’s liability act, found in 35 U. S. Statutes at Large, page 65, approved April 22, 1908. Under this act of Congress:

“Every common carrier by railroad while engaged in commerce between any of the states or territories ^ * * * or between any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband, and children of such employee, and if none, then to the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier,” etc.

The act further provides:

‘ ‘ That in all actions brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery,__ but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee,” etc.

The act further provides that in an action to recover damages for injury or death of an employee — ■

“such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employees.”

It was claimed by counsel for defendant in this case that, because Flannery was a trespasser upon the railroad, the engineer of the train which killed him owed him no duty until after he saw him, and that inasmuch as the testimony shows that the engineer did everything he could to avoid killing Flannery after he saw him, no liability arose against the defendant company, and that the court was warranted in arresting the case from the jury. Counsel for defendant do not claim that the plaintiff was precluded from recovery if Flannery, the deceased, was guilty of contributory negligence, but plant their defense squarely upon the position that Flannery was a trespasser, and that no duty was owing to him until after he was seen by the engineer of the train which killed him.

In the case of Cincinnati & Zanesville R. R. Co. v. Smith, 22 O. S., 227, the Supreme Court says, in the syllabus:

‘ ‘ The servants of a railroad company, in operating its trains, are bound to use ordinary care to avoid injury to domestic animals trespassing on the railroad.
“Where such trespassing animals were killed by a train, if the servants of the company having the train in charge, by the exercise of ordinary care and with due regard to their duties for the safety of the persons and property in their charge, could have seen such animals on the track in time to have saved them, it was their duty to have done so, and for their negligence in this respect, where the owner is not guilty of contributory negligence, the company will be liable.”

This is a leading ease, not only in this state, but outside of this state, upon the question of the duty owing to animals trespassing on a railroad. The rule laid down in this case was approved by the Supreme Court in the ease of L. E. & W. R. R. Co. v. Woisel, 55 O. S., 155, at page 159. So that it appears to be the rule, in this state at least, that the engineer of a railroad company does owe some duty to trespassing animals- before he has seen the animals.

If this be a sound rule to apply to a cow or horse or hog, it would seem to this court to be a much sounder rule to apply to a human being. We think the duty rested upon the engineer of this railroad company to exercise ordinary care, with due regard to his duties for the safety of .persons or property in his charge, to keep a lookout for persons upon the track, even though they were trespassers thereon.

The question of the contributory negligence of Flannery in this case could not preclude a recovery for his death, because of the modification of the rule laid down in 22 O. S., supra, by the act of Congress which enables a recovery notwithstanding the fact of contributory negligence. We think that at least as great care and duty rests upon persons operating railroad trains, to avoid injuring or killing human beings, as rests upon them to avoid killing or injuring domestic animals. According to the claim made by counsel for the defendant in this case, the engineer might close his eyes and run at a high rate of speed along his track, and if he injured or killed any person who happened to be a trespasser upon the railroad, the company employing him would not be liable. Such a doctrine is shocking to our sense of justice. The evidence in this case discloses that if the engineer of this train which killed Flannery had been in the exercise of ordinary care he could have seen Flannery sitting upon the tie at least seven hundred feet east of the point where he was killed. If he had then blown the whistle or had slowed down his train, or attempted to stop the same, the probabilities are that Flannery would still be living to maintain and support his wife and children. The evidence discloses that Flannery required but a very small fraction of a minute, perhaps two or three seconds more, to have cleared himself from the track before he was killed. This time would have been given to him if he had been warned, or if the train had slowed down to a speed of twenty miles an hour, which the engineer testified could have been done if he had made an effort at a point four or five hundred feet east of the point where Flannery was killed.

Counsel for the defendant have cited several cases in this'state to the effect that no duty is owing to a trespasser upon the railroad company’s right-of-way until after the trespasser has been seen, and then the, only duty owing to him is to use ordinary care not to kill or injure him. . The case of Erie Railroad Co. v. McCormick, 69 O. S., 45, at page 53, is cited in support of the contention of counsel for defendant. That was a ease in which the "last chance” doctrine was involved; and the Eassen case in 49 O. S. was followed by the court in 69 O. S., 45. The case of Railway Company v. Workman, 66 O. S., 509, is also cited in support of their contention. The case of Byrket v. L. S. & M. S. Ry. Co., 10 C.C.(N.S.), 73, is also cited, and the third paragraph of the syllabus, to the effect that — -

"A railroad company owes no duty to an employee or other person, who is using its track merely as a convenient path of travel, to give notice by bell or whistle of an approaching train, ’ ’ etc.

We have read this ease through, and there is not a word in the opinion of the court to support' the third paragraph of the syllabus in that ease. There has been no provision by our Legislature for the enunciation of a syllabus by circuit courts of this state, and therefore any purported syllabus by a circuit court can not be 'held to be the law of the case unless it be known that the syllabus was prepared and promulgated by the circuit court itself. The decisions of the circuit court are to be found in the reported opinions, not in any purported syllabi, unless the. syllabus is approved and announced by the court as a part of the opinion. We can not believe that any court would support the rule laid down in the third paragraph of the syllabus of the ease just cited.

But under our view of the evidence in this case Flannery was not a trespasser upon the railroad. Assuming for the purposes of this case that he was not actually engaged in the performance of his-duties at the time he was billed, he had a right nevertheless to be upon the tracks of the railroad company in the performance of his duty, and he had just left his engine' temporarily and walked but a short distance therefrom and sat down upon a tie for sone purpose unknown to the court. We can not say that he was at the time not in the course of his employment. In our opinion he was still in the course of his employment and in the employ of the railroad company, although not actively in the performance of his duty at the instant he was killed.

Whatever may be the rule in Ohio with reference to liability of the defendant company arising under the federal employer’s liability act, we think it will not be disputed that the state courts in the trial of causes involving liability under this act should be governed by the rules laid down by the federal courts in construing the act.

There was in this case evidence tending to show that the engineer did not blow his whistle immediately upon discovering Flannery. Even if Flannery was a trespasser and no duty was owing to him until he. was discovered by the engineer, nevertheless we think this item of evidence was sufficient to warrant the court in sending the case to the jury to determine whether or not there was any negligence on the part of the engineer in the failure to blow the whistle. The fact whether or not he blew the whistle at a point one hundred and fifty feet or more away from Flannery, to warn him, was a question to be determined by the jury under all the evidence in the case, and when the evidence was conflicting upon this point we think it was error for the court to arrest the case from the jury. It will not be sufficient to say that even though a verdict had been rendered in favor of the plaintiff the court would be justified in setting the verdict aside, because, as has been repeatedly said by our courts, it was the province of the jury in the first instance to pass upon the facts whether or not they showed culpable negligence entitling the plaintiff to recover.

It was held in the case of C., R. I. & P. Ry. Co. v. Stepp, 164 Fed., 785, that it is a question for the jury, where the evidence is conflicting, to determine whether or not the bell was ringing or the whistle blown by the engineer, even though the evidence which tended to show that he did not blow the. whistle or ring the bell was of a negative character.

In the case of Railroad Co. v. Cole, 214 Fed., 948, where an employee was injured who negligently remained in the caboose when he should have gotten out and gone back to signal the train, the court held that while at common law the negligence of the employee would defeat a recovery, nevertheless under the employer’s liability act, which expressly abrogates the rule with reference to contributory negligence, or negligence of the plaintiff, the plaintiff was entitled to have his case go to the jury, and could not be defeated in the recovery because he had been guilty of contributory negligence.

As was said in the case of Grand Trunk Railway v. Lindsay, 201 Fed., 836:

“It is only when plaintiff’s act is the sole cause, when defendant’s act is no part of the causation, that defendant is free from liability under the act.”

The evidence in this ease discloses that the train which killed Flannery was traveling at a very high rate of speed, and we are of the opinion that under the circumstances of this ease, considering the fact that the Sharonville yards were alongside of this main track, even if the tracks were not a part of the yard, it was a question for the jury to say, whether or not ordinary care required the engineer to slacken his speed in running through or alongside the railroad yards.

For the reasons stated we find that the court erred in arresting this case from the jury and instructing a verdict for defendant. The judgment is therefore reversed, and the cause remanded for a new trial.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.


author: Houck, J.

text:
    JURISDICTION ACQUIRED THROUGH MISTAKEN ACTION OF THE DEFENDANT.
    Court of Appeals for Stark County.
    A. E. Clippinger v. George W. Sturgeon and E. G. Saffel.
    Decided, February Term, 1915.

      Jurisdiction — "Where Objected to, Objection Should be Insisted on to the End — Filing of Answer, After Such Objection Has been Overruled, Equivalent to Entry of Appearance — Error in Dismissing ' Cause.

    1. A party desiring to insist that he is not in court must keep out of court for all purposes except to make that objection; and where he does not do that, but files an answer and when trial is called appears by counsel, but fails to continue to challenge the jurisdiction of the court, he thereby voluntarily enters his appearance and consents to the exercise of jurisdiction over both his person and the subject-matter.
    2. Some evidence having been offered in such a case, tending to support the allegations of the petition, it is error to grant a motion to dismiss on the ground that the petition is not supported by evidence and the court is without jurisdiction.

      H. JET. Emmons, for plaintiff in error.

      Metzger & Smith, contra.
   Houck, J.

This cause comes into this court on error from the common pleas court of this county. The parties here stand in the same relation to each other as in the court below.

Plaintiff brought suit against the defendants for $5,000 damages for malicious prosecution. The defendant Sturgeon resides in Stark county, and the defendant Saffel resides in Columbiana county, and both were served with summons. The defendant Sturgeon filed a motion to the petition asking that certain matters therein be stricken out, and the court sustained said motion. An amended petition was filed, and an alias summons issued to the sheriff of Columbiana county, Ohio, for the defendant Saffel, and due return made thereon. A demurrer to the amended petition was filed by the defendant Sturgeon, and the same was heard and overruled. Answer was then filed by Sturgeon.

The defendant Saffel filed the following motion:

“Now comes the defendant, E. G-. Saffel, and appearing for no other purpose, and especially disclaiming any intention to enter his appearance in this case, moves to set aside summons herein issued to the sheriff of Columbiana county and served upon him, and the return of said writ, for reason that he is a resident of Columbiana county, while said action was commenced and is pending in Stark county. That said action is not such an action as the statutes of Ohio authorize the service of summons on defendant in a county other than the county in which said action is pending.”

Said motion was heard and overruled and exceptions taken, and thereupon Saffel requested and was granted leave to plead, and filed his answer to the amended petition, setting up two defenses, the first defense being that before making the affidavit in which he charged the plaintiff with a criminal offense that he took competent legal advice, and acted upon same; * # # the second defense being in substance a general denial. In his answer, Saffel neither directly or indirectly made or set up any defense, or in any way questioned or challenged the jurisdiction of the court.

Plaintiff replied to the answer, and the cause came on for trial to the court and jury, and the plaintiff offered his testimony and submitted his cause, whereupon the defendant Sturgeon moved the court to dismiss the case as to him because the evidence offered by plaintiff was insufficient in law to establish any liability on the part of Sturgeon, and that the plaintiff had failed in his proof as to him. The court sustained the motion, and the plaintiff excepted.

The defendant Saffel then filed a motion asking the court to dismiss the action as to him for the following reasons: that no evidence had been offered that would make him liable in damages; that the court had no jurisdiction of the subject-matter of the action, or of the person of defendant Saffel. The court sustained the motion, and plaintiff excepted.

The plaintiff filed a motion for a new trial, which was overruled, and to which the plaintiff excepted. To the overruling of said motion for a new trial, together with other errors claimed in the record, the plaintiff in error prosecutes error to this court, and seeks a reversal of the judgment of the court below.

We have examined the record, transcript and files here presented and find no error that would warrant a reversal of the court below as to the defendant George W. Sturgeon, and the judgment of the common pleas court as to George W. Sturgeon is affirmed.

But how stands the issue as between plaintiff and defendant E. G. Saffel? Summons was issued and served on him in Columbiana county, where he resides. Pie filed a motion attacking the jurisdiction of the court, and it was heard and overruled. He then requested and was granted leave to file an answer, and did so. He plead two defenses in his answer, but in no way challenged the jurisdiction of the court, and thereby voluntarily entered his appearance and consented to the jurisdiction of the court over the subject-matter of the action, also jurisdiction over his person.

The cause came on for trial, and he appeared and participated in the proceedings, or at least was there by counsel. The defendant embraced his first opportunity to challenge the jurisdiction of the court when he filed the motion to quash the service and return of summons, but there he stopped, and did not continue to avail himself of this defense when the motion to quash was overruled by the court. He asked for and was given leave to plead, and then filed his answer to the amended petition, and again failed to take advantage of the opportunity presented of attacking the jurisdiction of the court, and then appeared in the trial of the case.

If a party wishes to insist upon the objection that he is not in court he must keep out for all purposes except to make that objection. But defendant Saffel did not do this, and by his own acts placed himself within the jurisdiction of the court, and he is now in no position to complain.

We further find from the record that in the trial of the case the plaintiff offered some evidence that would tend to support the allegations of his petition as against the defendant Saffel, and the court should have submitted it to the'jury.

We bave examined the following authorities, aftid believe they are decisive of the case at bar: Allen v. Miller, 11 Ohio State, 379; Mason v. Alexander, 44 Ohio State, 330; Long v. Newhouse, 57 Ohio State, 370.

The court below erred in rendering judgment in favor of the defendant E. G. Saffel, and said judgment is hereby reversed, and the cause is remanded to the court of common pleas for a new trial as between the plaintiff A. E. Olippinger and the defendant E. G. Saffel.

Shields, J., and Powell, J., concur.


author: Jones (Oliver B.), J.

text:
    ERROR. !N WITHDRAWING A WILL CASE FROM THE JURY.
    Court of Appeals for Hamilton County.
    Charles W. H. Kammann et al v. Albert August Kammann, a Widower, et al.
    Decided, May 12, 1916.

      Wills — Procedure for Contest of Will — Motion to Direct a Verdict for Defendants Does Not Lie, When — Trial Judge May Not Weigh the Evidence After the Presumption of Probate Has Been Overcome.

    1. Where, in a will contest, there is evidence offered hy the contestants which overcomes the presumption arising from the prohate of the will, the case must he referred to the jury for determination as to the weight of the evidence, and the granting, under such circumstances, of a motion to arrest the case from the jury and give judgment for the defendants is error.
    2. In the opinion of a majority of the court there was evidence offered hy the contestants in the instant case sufficient to overcome said presumption, and a submission of the case to the jury was therefore required.

      Kinhead c& Rogers and Wm. Jerome Kuertz, for plaintiffs in error.

      Tlerrlinger & Dixon and Lorbach & 6-arver, contra.
   Jones (Oliver B.), J.

- Plaintiffs in error in this proceeding seek to reverse the judgment of the court of common pleas sustaining the will of Anna M. Kammann, deceased. They are the children of the deceased brother of the testatrix, and by the terms of her will they were excluded from participation in her estate which with the exception of two small legacies was left to her surviving brother and his children.

The action below was brought under the statute to contest the validity of this will. At the trial of the cause an issue was made up as to whether or not the writing produced was the last will of said testatrix, and proponents introduced in evidence said will and the order of the probate court admitting same to probate, and then rested. The contestants then offered evidence tending to show that the testatrix was without capacity to make a rational disposition of her property. At the conclusion of the evidence offered by contestants, the trial judge on motion of the proponents directed the jury to return a verdict finding that the will presented to them was the last will and testament of the testatrix. To this ruling exception was duly taken, a motion to set aside the verdict and for new trial filed, which was overruled, and judgment was entered on the verdict, to all of which said contestants duly excepted.

The question to be here determined is whether the trial court erred in so directing a verdict.

The laws of Ohio provide for the probate of a will in the probate court. The proceedings there are ex parte (Bradford v. Andrews, 20 O. S., 208, 222). The only testimony heard there is that of the witnesses to the will and such other witnesses as may be desired by any person interested in having the will admitted to probate (Gr. C. 10516). No provision is made for hearing evidence at the instance of a person opposed to the probate of the will.

While an appeal can be taken to the common pleas court by a person aggrieved in case of the refusal to admit a will to probate (Gr. C. 10532), there is no such provision where the will is admitted to probate. But instead a special proceeding is provided to contest a will after it has been admitted to probate, by a civil action in the common pleas court of the county in which such probate was had (G-. C. 12079 to 12087). This action can be brought by any person interested in the will, and all the devisees, legatees and heirs of the testator and other interested persons including the executor or administrator must be made parties.

When a petition to contest a will is filed the clerk of the common pleas court certifies that fact to the probate court where the will has been probated, and that court is required to forthwith transmit to the court of common pleas the will, testimony and all the papers relating thereto, together with a copy of the order of probate, all duly certified (G-. C. 10534). Thereupon further proceedings for the settlement of the estate under the terms of the will are suspended until the final judgment is had in the will contest when a copy of such final judgment shall be certified to the probate court by the clerk of the common pleas court, who shall also return to such probate court the will and other papers theretofore transmitted by it.

In the common pleas court in the action to contest a will an issue must be made up, either by the pleadings or by order of the court, whether or not the writing produced is the last will of the testator. This issue must be tried by a jury. And the laAV provides that the verdict shall be conclusive, -unless a new trial be granted or the judgment is reversed or vacated (G-. C. 12082). In this trial it is provided that the order of probate shall be prima facie evidence of the due attestation, execution and validity of the will (G-. C. 12083). It will be observed that these two sections, 12082 and 12083, are in a measure inconsistent with each other.

Provision is made for the conduct of the trial, the proponent or party sustaining the will being entitled to open and close both the evidence and the argument. But in opening the evidence he must merely offer the will and its probate and then rest. The contestant then offers his evidence, and then the rebutting evidence may be offered as in other cases (G-. C. 12085).

A consideration of all these provisions shows that while the statute makes its probate prima facie evidence, the real test of the due attestation, execution and validity of the will is determined in the action to contest it.

The order of probate in the probate court before an action to contest the will has been filed has the force and effect of a judgment, but it is practically suspended when such contest is filed, and is superseded by tbe final judgment in the contest case.

The contest is an original proceeding connected only with the probate in that it can not be commenced until the will has been probated,- for the reason that until then there is in law no will to contest. It is however in the nature of an appeal from the order of probate, and in such contest all of the material facts as to the execution, attestation and validity of the- will are placed in issue to be heard and determined de novo with full opportunity for both sides to offer evidence and argument and without reference to the order of the probate court in admitting the will to probate except that the burden of proof is thereby cast upon the contestant to invalidate the will (Haynes v. Haynes, 33 O. S., 598).

The action to contest á will is denominated in the statute (G. O. 12079) as a civil action, and it is tried in the same maimer, and subject to the same rules as other civil actions except as to any modifications required by the special statutes providing for it, found in Chapter 8, Division VII of Title IV, General Code. In such trial, while it has been held in Walker v. Walker, 14 O. S., 157, that the provisions of G. C. 12082, requiring a jury trial are imperative, and in Holt v. Lamb, 17 O. S., 374, that a court can not proceed by mere decree, without the intervention of a jury, in Wagner v. Ziegler, 44 O. S., 65, it is determined that where the evidence does not tend to prove the issue on the part of plaintiff shewing improper restraint or incapacity of the decedent to make a will, the court has power at the conclusion of plaintiff’s testimony to direct a verdict sustaining the will.

The so-called “scintilla rule” does not apply to it in full force for the reason that the prima facie evidence furnished by the order of probate must be first met and neutralized by sufficient evidence. When this has been done and in addition to the quantum of evidence necessary for such purpose evidence however slight is produced tending to prove the facts essential to plaintiff’s case, then the motion for a directed verdict in favor of the defendants can not be properly granted, but the case must be submitted to the jury under proper instructions.

In other words, in the trial of a will contest case it is first necessary for the contestant to produce sufficient evidence as a minimum to balance that furnished by the order of probate of the will, and after that has been done and the evidence so adduced by him not only fully equalizes the prima facie case made for the contestee by the order of probate, but in addition to that minimum also tends to prove in all particulars the issues'required to be sustained by plaintiff, then upon the filing of a motion by defendant for a directed verdict sustaining the will the court must apply the doctrine laid down in Ellis v. Ins. Co., 4 O. S., 628, as to the excess evidence required beyond the minimum necessary to meet the order of probate, and treat as fully proved all that such evidence in any degree tends to prove, and take as fully established every fact that such evidence conduces to establish and all reasonable inferences from it. The court is not permitted to weigh the evidence beyond the determination of the required minimum, because it is the right of the plaintiff to have its weight and sufficiency passed upon by the jury.

, Applying these principles, upon which all the members of the court are in accord, to the ease here under consideration, it is the opinion of the majority of the court that the evidence was sufficient not only to rebut the presumption arising from the probate of the will, but that it also tended to prove that testatrix was so lacking in mental capacity and so controlled by delusions that she was unable to make a rational choice in determining the proper objects of her bounty in making her will, to the extent that she was not possessed of testamentary capacity at the time of its execution (Wadsworth v. Purdy, 12 C.C.[N. S.], 8), and that the trial court erred in granting the motion for a peremptory instruction' (Wilder v. Taylor, 87 O. S., 520).

Judge Gorman, however, is of the opinion that the evidence is not sufficient to overcome the presumption arising from the probate of the will and to require a submission of the case to the jury, and therefore dissents from the reversal of the judgment.

Judgment reversed, and cause remanded for new trial,

Jones (E. H.), P. J., concurs; Gorman, J., dissents.


text:
    APPEAL IN THE MATTER. OF A TOWNSHIP DITCH.
    Court of Appeals for Licking County.
    C. S. Davidson v. Allen Frost et al.
    Decided, March Term, 1916.

      Bitches — Time for Perfecting an Appeal — Where Claims for Damages Have Been Rejected — Runs from the Date of the Order of Location —Section 6648. »,
    An appeal from the order of a joint board of tbwnship trustees, rejecting claims on account of land taken and other damages on account of the construction of a proposed township ditch, should be filed within eight days from the entering of the order locating and establishing said ditch, and is rendered ineffective by construing the time for perfecting said appeal to be within eight days from the date of the order apportioning the construction among the parties interested.

      L. C. Stillwell and J. B. Clutter, for plaintiffs in error.

      Martin & Martin, J. W. Horner, Prosecuting Attorney, and Fitzgibbons, Montgomery & Black, contra.
   Powell, J.

The question presented by the record in this case is whether or not an appeal,was properly perfected to the action of the defendants, constituting the joint board of trustees for Hilliar township, Knox county, and Hartford township, Licking county, in the location and construction of a township ditch.

The record discloses that the said defendants, acting as such joint board, entered an order for the construction of the joint township ditch for said townships on the 17th day of April, 1915; that after such order was entered an adjournment was had until the 24th day of April, 1915, on which date a hearing was,had upon claims for compensation for property taken and damages which would be sustained by the construction of said ditch; that at said meeting of April 24th, the claims of the plaintiffs in error for compensation and damages were rejected and disallowed. That afterwards, on the 17th day of June, 1915, at a meeting of said joint board, such ditch so ordered was apportioned among the several parties liable for the construction thereof by said board; and that afterwards, within eight days, plaintiffs attempted to appeal from the order of the joint board of trustees by giving written notice and filing a bond, as provided by the statute.

The question presented is whether or not such appeal was perfected at the time and in the manner prescribed by law.

Jt is contended on the part of the defendants in error that such appeal was not perfected within the time required by law, viz., within eight days after the decision of the trustees, as provided by Sections 6625 and 6648 of the General Code. The last named section applies to joint township ditches, such as the one under consideration in this case, and provides that such appeals “shall be taken to the probate court of the county in a like manner as heretofore provided in this chapter,” the provision referred to being found in Section 5625. It is provided by this section that a person interested in the location of such ditch, or in the amount of compensation and damages determined upon by the trustees, may take an appeal to the probate court of the county “by giving written notice thereof to the clerk of the township within eight days after the decision of the trustees, and by filing with the clerk a bond with two or more sufficient sureties conditioned for the payment of all costs made upon the appeal if the decision of the trustees is sustained in the probate court.”

It is not contended here by the defendants in error that such notice was not given or bond filed, but it is claimed that they were not given and filed within eight days after the decision of the trustees. It is admitted that such notice was given and bond filed within eight days after the order of June 17, 1915, apportioning the construction of said ditch among the parties interested.

Was the giving of the notice and the filing of the bond at this , date sufficient! We think not. By analogy to the provisions of the statute relative to appeal from the proceedings of county commissioners, in reference to county ditches, we think such notice should have been given and bond filed within eight days after the order for the location of such ditch and the order refusing compensation and damages had been made.

The Supreme Court has passed upon the statutes relating to appeals in county ditch proceedings in the ease of Atley v. Commissioners of Clinton County, 77 Ohio State, 285. It is there held that the order or judgment of the commissioners contemplated by the last clause of Section 4461, from which an appeal may be taken by an aggrieved party, is the order or judgment finally determining that the proposed ditch is necessary and will be conducive to the public health, convenience or welfare, and that it is the best route, and also determining claims for damages, if any are made.

That is, in such cases, the appeal must be taken within the time limited after the order or decision to be appealed from has been made by the commissioners.

The statutes relating to appeal from the proceedings of county commissioners are in pari materia with the statutes governing appeals from township trustees. The limitation in cases of ditch proceedings of township trustees is eight days from the entering of such order; and as there are only two orders from which an appeal is allowed in township ditch matters, such notice and bond should be given within eight days from the entering of the last order; in this case, the order relative to compensation and damages.

Under this construction, such appeal should have been taken within eight days after April 24, 1915. This was not done, and the appeal was properly dismissed on motion of the township trustees; and the court of common pleas did not err in sustaining the action of the probate court in dismissing said appeal:

The judgment of the court of common pleas will be affirmed. Exceptions may be noted.

Shields, J., and Houck, J., concur.


author: Jones (E. H.), P. J.

text:
    ABANDONMENT OF EASEMENT BY RAILWAY COMPANY.
    Court of Appeals for Hamilton County.
    Mary Knepfle et al v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company; and Zarum Simonson v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company.
    Decided, July 12, 1916.

      Canal Right-Of-Way Acquired by Railway — Plot of the Canal Land Not Used by the Railway — Circumstances Which Are Held to Show Intention to Abandon its Basement Therein — Prescriptive Rights also Acquired by Adjacent Owners Who Appropriated the Land to Their Own Use.

    A railway company appropriated an old canal bed with all the privileges and appurtenances of whatever nature connected therewith, which included a basin containing about ten acres of land theretofore used in turning boats. The basin was not needed by the railway, and in time dried up, and was continuously farmed by the adjacent owners for almost fifty years, when the railway asserted title to an easement therein, and caused this land to be transferred to its name for taxation. During the long interval the railway had been required to fence its road, and in doing so built a fence which followed the line of the railway track, and did not include the basin. In an action by the adjacent owners, - whose deeds covered this basin, to have their titles quieted, Held:

    That the railway company in taking over the right-of-way of the canal company, which included this tract of land, took more than it needed or has had occasion to use, and by its acts in not including this land with its own property for taxation, and in placing its fence as it did, and in permitting others to use the land without hindrance, evinced an intention to abandon its easement therein, and the plaintiffs are entitled to a decree quieting their title as against such easement.

      Michael Minges and Albert A. Graef, for plaintiffs.

      Harmon, Colston, Goldsmith & Hoadly, contra.
   Jones (E. H.), P. J.

The above two cases come into this court on appeal from the court of common pleas, and by agreement were heard together, as they involve the same questions, and the same evidence is entirely applicable to both. ,

The actions are brought to quiet title in the plaintiffs as against the adverse claim of the defendant — in the Knepfle case, to 5.11 acres and in the Simonson case 4.23 acres of land. The evidence establishes the fact that this land in controversy was from about the year 1838 to 1863 a part of the right-of-way of the Cincinnati & Whitewater Canal Company and was covered by the waters of said canal, was a part thereof, and was used by said company in the conduct of its business, principally for the purpose of turning boats.

On July 1, 1863, the Cincinnati & Indiana Railroad Company determined to build a branch railroad, running from a point -where its main line road, running west from Cincinnati, left the bed of the Cincinnati & Whitewater canal to the village of Harrison; and on said day the board of directors of said railroad company passed a resolution which in effect appropriated all that portion of the Cincinnati & Whitewater canal commencing at the point named, which has since been known as Valley Junction ; thence following the line of the canal to the village of Harrison, together with the two banks and basin of said canal, all its locks, gates, aqueducts, viaducts, bridges, mill sites and privileges, water power, and other rights, privileges and appurtenances and property of whatever name and nature. Later there ■was paid to the Cincinnati & Whitewater Canal Company the sum of $5,000 for the- property so conveyed by the canal company to it.

Thereafter on January 1, 1877, the Cincinnati & Indiana Railroad Company conveyed to the Harrison Branch Railroad Company the right-of-way and land occupied or used Toy the Hwrrison Branch Railroad Company for a railroad, extending from its intersection -with the railroad of the Cincinnati & Indiana Railroad Company at Valley Junction to the village of Harrison, together with all privileges and appurtenances to the same belonging, etc.

On the same day the Plarrison Branch Railroad Company leased to the Cincinnati & Indiana Railroad Company the same property for a term of ninety-nine years, renewable forever. ■

On December 31, 1912, the Harrison Branch Railroad Company conveyed all its property to the present defendant. The property conveyed is thus described in the deed:

‘ ‘ The railroad of the grantor company extending from a point of connection with the Cleveland, Cincinnati, Chicago & St. Louis Railway, at Valley Junction in Hamilton county, Ohio, to a point on the state line between Indiana and Ohio in the village of Harrison in said county; together with all and singular the properties real and personal, rights, franchises, interests and estates appertaining to or used in connection with said railroad herein conveyed or intended so to be (except the franchise to be a corporation), including roadbeds, superstructures, rights of way, tracks, bridges, viaducts, buildings, structures, fixtures and appurtenances, locomotives, cars and other rolling stock, tools, machinery supplies, materials and other chattels connected with, appurtenant to or used in connection with said railroad or belonging to or possessed by the grantor company; and all property, real or personal, wherever situated, or interest or estate therein, by the grantor company owned or possessed; and all rents, issues, profits, tolls and. other income of said railroad, properties, rights, franchises, interests and estates; together with all and-singular, the tenements, hereditaments and appurtenances of said railroad and properties, and the reversion or reversions, remainder or remainders.”

Plaintiffs, Mary Knepfle and others, bought the farm now occupied by them under a description which makes no reference to a canal right-of-way or a railroad right-of-way, by a deed which bears date May 22, 1897; and plaintiff Simonson bought the farm now owned by him by deed which likewise makes no reference to the right-ofiway either of the railroad or canal and which was dated February 21, 1901. The boundaries of the farms conveyed by these deeds, according to the descriptions therein contained, included the tracts of land involved in this controversy.

It also appears from the testimony that in 1863, at the time the canal company sold out to the railroad company or very soon thereafter, the water was let out of the canal; that for some time thereafter the property in question (the former canal basin) was a low, wet place in which water stood, but that in course of time it became dry and was farmed by the owners of the fee) and was used and controlled by them as fully and in the same manner as they used and occupied the rest of their respective farms.

In 19Í2, at the time of the transfer to the defendant from the Harrison Branch Railroad Company, the defendant had a survey and plat made of its property, and the same was duly placed upon record. Thereafter, upon representations made by the defendant to the County Auditor of Hamilton County, Ohio, the property in dispute was removed from the tax duplicate in the names of the plaintiffs, and they thereupon brought these suits to quiet the titles they claim to hold to the property in question, making the railroad company party defendant thereto. The railroad company answered, setting up, first, that it owns the property in question; and second, that it has been in the open, notorious and adverse possession of it for more than twenty-one years last past.

Plaintiffs base their right to have their titles quieted upon four main grounds: first, they say that defendant has no title to the properties in question; second, that the plaintiffs are purchasers for value without notice; third, that the acts and conduct of the canal company in disposing of its rights to the Cincinnati & Indiana Railroad Company, predecessor of the defendant, followed by the failure and neglect of the defendant and its predecessors to occupy either or any part of the parcels of land in question, amounted in law to an abandonment of its right; fourth, they claim to have obtained title by actual, open, notorious, continuous, exclusive and adverse possession for more than twenty-one years.

According to the view that this court takes of these cases, we deem it unnecessary to discuss or determine the first two contentions of the plaintiffs. The defendant only claims an easement in this land. The record shows beyond question that the fee of this land has always been in the plaintiffs and their predecessors in title. Whether when plaintiffs purchased this land (the KnepfLes in 1897 and Simonson in 1901) they took the title with record notice of an easement therein is immaterial, if from an examination of the questions of abandonment and adverse possession the court find upon the issues joined in this action in favor of the plaintiffs at this time. Such is the situation; so we deem it unnecesary to enter into a discussion as to whether or not the plaintiffs were purchasers without notice. Upon this point we simply say that we have examined this record rather carefully, including the exhibits which are made a part thereof, and can not recall any public record which could be considered notice, nor do we think the record shows any physical fact which would put the present owners upon inquiry or be notice to them, except as to the strip enclosed by the railroad company and necessarily used and occupied by it in the operation of its road.

The question of abandonment must be determined by the facts and circumstances peculiar to each case.

In the case of Junction Railroad Co. v. Ruggles, 7 O. S., 1, the court in its opinion on page 11, says:

“Doubtless a right-of-way, like any other right of property, may be abandoned; and such abandonment, which depends on the intention of the owner, may be inferred from the lapse of time or other circumstances indicative of an intention on the part of the grantee to abandon.”

The same principle is announced in Garlick v. Railroad Company, 67 O. S., 223. On page 235 of the opinion the court says:

“The question of abandonment is eminently one of intention.”

And then it quotes the following on page 707 of Washburn’s Easements & Servitude:

“It is not easy to define in all cases what would be such act t-.f abandonment as would destroy a right of easement, and each ease seems to be a matter for a jury to determine. But nothing short of an intention to so abandon the right would operate to that effect, unless other' persons have been led by such acts to treat the servient estate as if free of the servitude, and the same could not be resumed without doing injury to their rights in respect to the same. And in this it is not intended to embrace questions which may arise from a mere non-user of an easement.”

In this connection see also: Hatch v. Railroad Co., 18 O. S., 121.

In the light of this doctrine, which as applied to this case makes the claim of abandonment depend upon the intention of the railroad company, let us look briefly at the facts as here presented: The railroad company of course had no use for a canal basin. When the canal was abandoned and turned over to the railroad company and a railroad was constructed thereon operating its ears by steam, the canal basin as such was abandoned. Steam was substituted for the mule, and wheeled cars for the boat. ’ The railroad company no longer needed the basin. And from 1863 to 1912, the date of the bringing of this action, not a single act was ever performed by the railroad company that could be considered as an act of ownership with reference to this property. The owners of the fee occupied the lend, cultivated it, pastured it, gathered the crops from it, enclosed it with fences and, as said before, used it in exactly the same manner as they did the rest of their farms. A few years before this action was brought the plaintiffs through an attorney ordered the defendant to build a fence separating its right-of-way from this land. This demand was made under the provision of the statute which requires a railroad company to fence its right-of-way, and was complied with promptly and without any protest on the part of the railroad company.

There is not one syllable in the record which shows tkat the defendant company, or its grantors, by word or deed for over fifty years prior to the commencement of this action ever said or did anything indicating that it made any claim to the property in question. It was the action of the railroad company in having the county auditor remove this land from the tax duplicate in the names of the plaintiffs that precipitated this law suit. If instead of doing that the railroad company had sold this tract of ground to the Cincinnati, Lawrenceburg & Aurora Railroad Company, whose right-of-way abuts this tract of ground on the north, for depot purposes or for switches and terminals, then it seems to us that the case would be covered entirely by the decision of our Supreme Court in Platt v. Pennsylvania Company, 43 O. S., 228. As it is, counsel for plaintiffs rely upon this last cited case, while their adversaries make the claim that it has no application to the facts in the case at bar. We are inclined to think, however, that it has a strong bearing upon the determination of the question here presented. The Lake Shore Railroad Co. in the latter case had appropriated a strip of ground one hundred feet wide for its right-of-way. It built its track, and in so doing used only fifty feet, which it maintained as its r.'ght-of-way for over twenty-one years,-when it sold to the Pennsylvania Railroad Company twenty-five feet of the strip originally appropriated. An action was brought by Oliver, the owner of the fee, to recover damages, wherein it was held that—

“the fact that it became evident subsequently to an appropriation that the company had appropriated more land than was necessary for its use, and would not need a particular specified part of the strip appropriated for any purpose for which the appropriation was made, will not authorize the company to sell in perpetuity such surplus part to another railroad company. * # * owner is not authorized to recover by civil action such surplus or enjoin the operation of such railroad thereon, but he may by action treat the transaction as an abandonment of such surplus by the first company and its appropriation by the last company, and recover damages as upon an appropriation. ’ ’

The reason given why the lessor could not recover the land was that he had stood by and seen the investment by the Pennsylvania Company of a vast amount of money, before complaining.

We think that in so far as it was held by the Supreme Court that the non-user by the Lake Shore Company for so many years, of this twenty-five-foot strip, showed that it. was unnecessary to the operation of its road and was in effect an abandonment of the same by it, the case is instructive here and furnishes authority for the decision reached by us in this case, viz., that the non-user of this land for practically a half century by the defendant and its predecessors must be taken as a manifestation of an intention to abandon the same. The railroad company when it took over the right-of-way of the canal company in 1863, in taking the canal basin took that which it did not need in connection with the operation of its road, and in the light of the evidence in this case as briefly reviewed above it must be held to have abandoned the land herein .involved, or its easement therein, long before this action was commenced, and plaintiffs are entitled to a decree quieting the title in them.

This determines these cases, but since the claim of title by prescription is so strongly urged and fully discussed in the briefs on both sides, it is well to say that we are strongly inclined to the opinion that the claim of plaintiffs in this regard is established and sustained by the evidence. As already stated, the predecessors in title of the plaintiffs shortly after the water was let out of the canal reclaimed the basin as a part of their respective farms and used it continuously, openly and notoriously, not only for twenty-one years but for more than twice that length of time prior to the beginning of this action. It is claimed by the defendant that this occupancy was not adverse. It is true that this necessary element is not as clearly shown by the evidence as that the possession was open, notorious and continuous, but the evidence shows that for more than twenty-one years prior to any assertion of this kind on the part of the railroad company the then owner of each part of the former basin dug a well on his respective portion and has ever since maintained the same. They constructed across the land — -it being low-lying land — foot bridges by means of which they and other residents of the vicinity could reach a railroad station near by. They ordered the railroad company, as owners of adjoining land are empowered to do under the statute, to build fences along the right-of-way as then in use. They connected these fences in such a way as to completely enclose the land in controversy. They paid the taxes for all these years. And in this connection it is worthy of mention that the evidence does not show that the . railroad company at any time included this property in its statement or return for taxation required under Section 5422, G. C. It is fair to assume that no return was made by the railroad company of this land or of its easement therein, there being a total absence of evidence to that effect. We will not assume that this omission was an attempt deliberately made to avoid taxation on this land, but rather believe it to have been due td the fact that the company had abandoned all claim to the land. This omission to include this land in its reports to the tax authorities is one of the strongest indications of abandonment that the evidence or lack of evidence presents, and should have been included in the statement of facts and circumstances supporting the plea of abandonment.

As indicated above, we are not as clear as to the rights of the plaintiffs under the claim of adverse possession as under that of abandonment. Our position is quite similar to that of the circuit court of this county in the case of Tudor Boiler Mfg. Co. v. I. E. Greenwald Co., 5 C.C.(N.S.), 37. That case involved a right-of-way, and the court had under consideration in connection therewith the subjects of abandonment and title by prescription. They found in favor of the Greenwald Co. on both of these defenses, but that the stronger defense was made out in favor of abandonment. On page 43 the court say:

“On this issue the court is not so strong in its conclusion as on the issue of abandonment, but on this, too, we find in favor of the defendant.”

That sentence expresses the attitude of this court in the instant case, except that our finding is for the plaintiffs.

Every act of ownership or dominion over this property for more than fifty years has been performed by the plaintiffs, and we are inclined to think that these acts of dominion and ownership by the occupants of the land, taking all of the evidence into consideration, were adverse, and therefore hold that the plaintiffs have obtained whatever title or easement the defendant or its predecessors may have had in this canal basin, by prescription. As an example of the holding of the Supreme Court in regard to the principle that title to an easement may be acquired by adverse possession, see journal entry in County Commissioners v. C., H. & D. R. R. Co., 92 O. S., 513.

Somewhere in the record it is said that the'action of the county auditor, taken in 1912, in removing this land from the tax duplicate in the names of plaintiffs and transferring it to the defendant, was taken under authority of Section 8821, G. O. An examination-of that section will show that it applies only to land actually in use by a railroad company, and it therefore furnishes no authority for any action in this kind of a case. The action of the railroad company in making the application for the transfer was a sufficient assertion of claim to constitute a cloud upon the title and form a basis for this action, especially in view of the fact that the application was granted by the county auditor and the-transfer was made.

For the reasons above stated we find that the titles of the plaintiffs should be quieted as prayed for in their respective petitions.

Jones (Oliver B.), J., and Gorman, J., concur.


text:
    JURISDICTION IN THE MATTER. OF A ROAD IMPROVEMENT.
    Court of Appeals for Morrow County.
    George C. Gruber v. C. F. Osborn et al, Commissioners of Morrow County.
    Decided, 1916.

      Roads — Whether Requisite Number of Land Owners Have Petitioned for a Road Improvement, Determined How — Part of Section 6029 of the Garrett Law Void for Uncertainty.

    Whether county commissioners have jurisdiction under the Garrett law to proceed with a road improvement is to be determined by the provision of Section 6926 for a petition by “a majority of the resident owners of real estate situated within one mile of the road,” without reference to a provision of Section 6929 which eliminates “land owners residing within a municipality,” the said provision of Section 6929 being void for uncertainty.
   Powell, J.

This action is before this court upon a motion to dissolve a temporary restraining order heretofore allowed in the court of common pleas, and which came into this court by appeal from a judgment of the court of common pleas making said injunction perpetual.

The question presented arises upon the statutes relative to the construction or improvement of public highways, and was begun under what is known as the Garrett law, which begins with Section 6926 of the General Code, and ends with Section 6956 of said code. The particular question to be decided is as to whether or not, under the provisions of these statutes, the commissioners had jurisdiction to order the improvement prayed for, because the petition for such improvement or construction was not signed by a majority of the resident owners of land lying within one mile of the proposed road.

It is provided by Section 6926 that when a majority of the resident owners of real estate situated within one mile of a public road present a petition to the board of county commissioners asking for the grading and improving of such road, they shall go upon such road and take such proceedings as are provided in said statutes.

The particular question presented in this case arises under the latter part of Section 6929 of the General Code, which reads as follows:

‘ ‘ It shall not be necessary in determining such majority petitioners to count land owners residing within a municipality. ’ ’

The question arises upon this state of facts, to-wit: that there are sixty-three lots of land to be assessed; that there are nine non-resident owners who can not be counted in determining whether a majority have signed the petition; that fourteen of the remaining tracts are owned by persons living within a municipality and more than one mile from the road to be improved; that the total number of signers to the petition is twenty-two, and that the fourteen tracts of land owned by persons living within a municipality are not counted in determining whether a majority have signed the petition.

It is contended by the commissioners that the owners of these fourteen tracts should not be counted by reason of the provision contained in Section 6929 above mentioned, and that twenty-two constitute a majority of the land owners entitled to be counted.

The plaintiff in the action- seeks to enjoin because the petition was not signed by a majority of the resident owners of land as provided by Section 6926. If the petition is signed by a majority, the order of the commissioners establishing such road was properly made. If it was not signed by a majority of the resident land owners, then the court was without jurisdiction to order said improvement to be made.

Upon examination of the statutes the court is of the opinion that the two sections above quoted are in conflict; that Section 6926 requires that a majority of the resident owners of real estate situated within one mile of the road must sign the petition to give the commissioners jurisdiction under said statutes, while Section 6929 provides that if any one of said land owners resides within a municipality, it shall not be necessary that he be counted in determining such majority petitioners.

■ It is the opinion of the court that this provision of Section 6929 is void for uncertainty; that if it be construed to be mandatory, in that these owners residing within a municipality shall not be counted, then a new rule for determining majorities is established, which is in conflict with the generally well accepted rule for the determination of a majority. If it is not mandatory, but discretionary whether they shall be counted or not, at the option of the commissioners, then it would be in violation of the provisions of the Constitution which provide that all laws of a general nature shall operate uniformly throughout the state. We think that if such provision has any force and effect, it would only apply to such municipalities as are within the bounds of such proposed road improvement, or within one mile of either side of the road which is to be improved.

With this construction it follows that in either event the petition filed in this ease is insufficient. It does not have a majority of the resident land owners within such improvement district, if such resident owners residing within the county are to be counted; nor does the petition show that the resident owners who reside within a municipality are residents of a municipality within one mile on either side of such proposed road.

For these reasons the court is of the opinion that the commissioners were without jurisdiction to make said improvement; that the injunction was properly granted, and the motion to dissolve ' the same will be overruled. Exceptions may be noted.

Shields, J., and Houck, J., concur.