author: King, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan’y Term, 1895.)
    Before Scribner, Haynes and King, JJ.
    THE TOLEDO, ANN ARBOR & NORTH MICHIGAN RY. CO. v. S. LOTT.
    Where a contract is made for services, the employe agreeing to do the work for the compensation which on the completion of the work the employer would consider fair and reasonable, the employer who is to name the compensation, must exercise that right at the time when it ought to have been exercised — in this case at the completion of the services; and if not then, then at the time when the employe after the completion of the services came to him for his compensation. Such employer can not wait until he is brought into court and upon the witness stand, and then for the first time exercise the right to name the price; and it is not error for the court-under such circumstances, to rule out at the trial the opinion of the employer expressed at the witness stand. In such case the employe is entitled to recover what the jury think his services were reasonably worth.
   King, J.

This is a petition in error to reverse the judgment of the court of common pleas. It seems that some time in 1892 the Toledo, Ann -Arbor and North Michigan Railway Company, through its officers and manager, conceived the idea of acquiring some real estate, I presume for the purpose of adding to the terminal facilities which it already had, or to provide others, and between its officers and Sherman W. Lott there were some negotiations about his acting for them in endeavoring to secure the purchase of certain property, which is disclosed in the evidence. The agreement, or arrangement, whatever it was, to pay Mr. Lott, they did not carry out, and he was compelled to bring .this action, and in his petition he sets out that the railroad company is indebted to him in the sum of $1,463.25, with interest from December 14; 1892, on account of services which he rendered to them in the following respects, to-wit: the purchase at different dates of different parcels of property, which he sets forth and describes in detail, with the sum opposite each one which he avers his services were reasonably worth, and no part of which he says has been paid.

The defendant company answer this petition and deny that there was due to-the plaintiff $1,463.25, or any amount in excess of $300, which the defendant alleges is ample and reasonable compensation for all services ever rendered by the plaintiff for the defendant.

Defendant denies that said account is a just and true account of services rendered by the plaintiff to the defendant, as set forth in the petition, and denies all the allegations of the petition not herein expressly admitted to be true.

For a second defense this defendant says “that, the only contract and agreement entered into by and between the defendant and the plaintiff for services mentioned in said account, was entered into on or about, the--day of---, .by and between the plaintiff and H. W. Ashley, Escp. general manager of said defendant company, acting for said company; that by the terms of said agreement it was agreed and understood that plaintiff should receive as full compensation for the services to be rendered by him thereunder, such sum as said general manager should deem reasonable. That at the time of the completion of the services, and at the time of the beginning of this suit, the said general manager deemed the sum of $300 to be an adequate and reasonable. compensation for such services. That the services set forth in the petition were all rendered by the plaintiff under the agreement aforesaid.

There was a demurrer interposed by the plaintiff to the second ground of defense, and overruled. The reply denied that $300 was an ample and reasonable compensation, and denied each and every allegation of the second defense. The case was tried to a jury, and a verdict rendered for the plaintiff at the September term, 1802, for the sum of $1,-045.18.

On the trial certain evidence offered was objected to by the plaintiff below, and the objection sustained. The agreement which seems to be the contest between them is set forth in the bill of exceptions in very brief language, and is contained substantially in the testimony of S. W. Lott and H. W. Ashley, general manager of the defendant company. I will read it. The plaintiff testified:

"The first that I knew anything about this, that they wanted me to buy this property, was on the 19th day of September, a year ago this last September, 1892. I was going to the court house on business, and Mr. Ashley— James M. Ashley, Jr. — the vice president of the road, met me on Superior street, right opposite Armstrong & Clarke’s ■wholesale grocery store. We talked a little about different" matters; then he spoke about the purchase of this property, and said that the park commissioners were going- to condemn the property along the river, and that they would probably have to change their terminal. He said he wanted me to purchase this property for them, and wanted me to go along with him to Pythian Castle and see his brother, Henry W. Ashley, who was the general manager.
“Q. State fully what took place in that conversation between James M. Ashley, Jr., and yourself before you went to the office. A. I was coming to that. I told him I had to go to the court house. He said, “We will walk up that way and then go to Pythian Castle.” We did, and in that conversation he said that there was between $60,000 and $70,000 worth of property to be purchased, and he didn’t want anybody to know anything about it except myself. He said he didn’t want any real estate men to have anything to do with it, or any one connected with the road, or their attorney. He said there was between $60,000 and $70,000 worth of property, and if people found out that the railroad company wanted to purchase it, it would cost them $100,-000. I told him I didn’t hardly know whether I was able to the task, and I asked Mr. Ashley if I couldn’t let Judge Cummings into the secret, as I was reading under him— reading law under him — and that I should want some one to help look after the titles. Mr. Ashley spoke about looking after the titles. I asked him if I couldn’t let Judge Cummings into the secret — he knew I was reading law under Judge Cummings. He said no, he didn’t want anybody to know anything about it. I said, “All right, then you can rely upon me. ” He said he kneiv he could do that; that he hadn’t known me very long, but he had studied me in that time, and knew I was one he could rely on. I told him he could do that. By that time we got to the Castle, and he introduced me to his brother, Harry W. Ashley. He was the general manager.
“Q. State fully what was said between you and Mr. Ashley on the subject of compensation for yourself? A. He asked me what I wanted for my services, and I told him I didn’t know what I could do at that time; that I wanted simply what was fair and reasonable, and was willing to take what he thought was fair, and reasonable.- He said, “All right, we will leave it that way.” He said, “Gk> ahead, and in case you make good purchases I will pay you liberally, and more than otherwise. At any rate, I will pay you more than your time and services are worth at your office. ’ ’ I said ” All right,” and that was all that was said on that subject, as near as I can tell. ’'

There was a little more evidence given as to the value of these services. Henry W. Ashley was called and testified that he was the general manager of the defendant company, and that he made personally on behalf of said company the agreement with the plaintiff for the rendering of the services testified to by the plaintiff, and that said agreement was that the plaintiff should receive as compensation for his services such sum as he, the said Ashley, should deem fair and reasonable therefor, though he would not deny the correctness of Mr. Lott’s'statement as to the conversation on the subject of the compensation as heretofore set forth in Mr. Lott's testimony.” That is the testimony about the agreement, and ail the testimony that is disclosed in the bill of exceptions relating to the agreement.

Then Mr. Henry W. Ashley, while a witness, was asked this question:

■ ’You may state to the jury what you deemed a reasonable and fair compensation to be paid to the plaintiff for his services at the time he discontinued his work.”

This was objected to, and the objection was sustained,and several other questions were asked of the same nature. The attorney for the defendant company, disclaiming any intention on his part to make Mr. Ashley an expert, or to qualify him as such, or to have him qualify generally as to his opinion of the value of such services, only desired to get at what he deemed at the time of the rendition of the services, or when they were completed, was a fair and reasonable compensation to be paid to the plaintiff; and all questions that went to that were objected to, and the objections sustained. To that defendant excepted. The bill of exceptions further says .that “ The court said to defendant’s counsel that if, after the performance of the services, Mr. Ashley made an estimate of their value, and stated it to the plaintiff, evidence of the same might be given. ’ ’ And the plaintiff by his attorney offered to permit Mr. Ashley to testify as an expert, if he would qualify as such, which the attorney for the defendant declined to have him do, for the reason that he desired to raise the question of his right to answer as the sole arbiter under the contract. The court also said “If Mr. Ashley could qualify as an expert, he might give his opinion of the value of the services. ’ ’

Thereupon testimony was offered by defendant tending to show that in a conversation between Mr. Lott and Mr. Ashley at about the time of the conclusion of the services of Mr. Lott, said Lott demanded $1,000 as compensation for his said services. But there was no testimony tending to show that Mr. Ashley stated to Mr. Lott, prior to the bringing of this suit, what sum he, said Ashley, deemed a fair and reasonable compensation for said services.

'Thereupon the defendant rested and offered no further proof, and asked the court to charge certain things to the jury, which the court refused, but all bearing on the same point and put for the same purpose, to-wit: that the court should instruct the jury that under the agreement as shown by the testimony of Mr. Ashley (and his testimony, by the way, does not vary substantially from that of Mr. Lott), he would have the right to determine and name the sum as a witness that was fair and reasonable. The plaintiff in error claims in this the court of common pleas erred; that Mr. Ashley should have been allowed to testify on the trial, as a mere arbitrator, what amount of compensation Mr. Lott should receive — the sum which he deemed at the time of the rendition of the services, when they were concluded, was a fair and reasonable compensation.

•Several cases have been cited on the part of the defendant in error bearing upon the claim which he made before the court below and the claim which 'he makes here, that such an agreement as testified to by the parties was only an agreement to pay what the services were reasonably worth. On the other hand are a line of cases cited by the plaintiff in error, bearing upon the claim which it makes that the parties might contract that one or the other of them should determine the compensation. So far as the cases cited here by the attorney for the company are concerned, they bear mainly on contracts for purchases of machinery or improvements of machinery, where the courts have held that the contract amounted to leaving the property on trial, and the agreement was that if the party who purchased or who was making the agreement to purchase was satisfied with the article he should keep it; if he was not satisfied, he was not to keep it or pay for it, but was to return it. These hardly come up to the agreement in the case at bar — a case where a person is employed to render a service, and the service is rendered exactly as it was contracted to be rendered, and the employer has the benefit of that service, In such a case, can a contract be made that will authorise him to name the compensation? There are some decisions that that kind of a contract would not be enforced as a contract by the courts. Whether that be so or not, we take this view of this case: If such a contract could be enforced, plainly and clearly the party who claims the right to name the compensation, must exercise that right at the time when it ought to have been exercised, to-wit: in this case, at the conclusion of the services; or, if not then, it must have been exercised when the employe or agent came to him to get his pay — came to him for his compensation. It is conceded in the record that Lott did come to Ashley and made a claim, as the record shows, of $1,000. It is said that that was an offer of compromise. It matters not how it came to be made, it certainly gave to Mr. Ashley, who claims to be the arbiter under this contract, the opportunity to exercise his judgment and fix a price; and clearly he must have done it when such an opportunity was offered him. If this is not so,he could delay and compel the plaintiff to await the time when he should see fit to exercise that judgment, and the plaintiff would have no right to bring a. suit, because when he sues he must sue on the contract, If Mr. Ashley can name the time, then he can postpone the time that the plaintiff might bring an action. No such contract as that would be reasonable. So it seems to us clearly that Mr. Ashley should have exercised his right under such contract, if he claims such a contract. On the contrary, he did not do that; he never named any price that he deemed reasonable, but insists that he might wait and refuse until he is brought into court, upon the witness stand, and then for the first time exercise the right to name a price which the plaintiff ought to take. A person’s rights" are not to be put in jeopardy in that manner. They cannot be held off and played with to that extent, and kept from enforcing them in the courts which are open for the prosecution of such claims, and for the collection of just such debts.

So it seems to us the defendant below could not claim the right to offer in evidence Mr. Ashley’s opinion on the' trial, for the first time, it not having exercised its right to name a price that it or Mr. Ashley should deem to be a fair and reasonable compensation.

This form of action, as it is stated in one of the cases cited, is brought for the recovery of a compensation.. In such a case it must be upon a quantum meruit, which, under the old forms of proceeding, was known as an action of assumpsit; and in the case that is cited from 38 Ill., 442, they say that such a action lies on an express or implied promise-that the defendant will perform the terms of the contract, and the price to be paid is fixed and agreed upon by the parties; or, when the whole labor has been performed, and the price to be paid is not fixed or agreed upon, the law determines that it was the implied agreement of the parties that it should be what the services were reasonably worth. Take it in this case: while an agreement might be made permitting the employer to say at the end of 'the time what the services were worth and to fix the price to be paid, that would govern, provided he exercised the right in good faith, which he must necessarily do; yet such an agreement could not be made and enforced if the employer failed or refused to fix the price at the time named in the contract, or when called upon to do it by the employe. The defendant failed to do that in this case, and we do not consider that the court below committed any error in its rulings or charge.

A. L. Smith, attorney for plaintiff in error.

J. W. Cumm/ings, attorney for defendant in error.

The judgment is affirmed, without penalty.


source: Caselaw Access Project

author: Seney, J.

license: Public Domain

text:
    (Third Circuit--Hancock County, O., Circuit Court
    May Term, 1895.)
    Before Seney, Day and Price, JJ.
    THE CITY OF TOLEDO v. DAVID HOSLER, Treasurer of Hancock County, Ohio.
    Paragraph 8 of section 2732, of the Revised Statutes of Ohio, as amended March 18, 1891, and found in vol. 88 Ohio Laws, page 96, reads:
    . “All market houses, public squares, or other public grounds, town or township houses or halls used exclusively for public purposes, and all works, machinery, pipe lines and fixtures belonging to any town and used exclusively for conveying water to said town, or for heating or lighting the same.
    Held: That in so-far as said section exempts from taxation “a.11 works, machinery, pipe line and fixtures belonging to any town and used exclusively for conveying water to said town or for heating or lighting the same; is in conflict with and in violation of article XII, section 2, and article X. section 7 of the constitution of the state; hence void.
    On Appeal from the Court of Common Pleas of Hancock County.
   Seney, J.

Tlie city of Toledo is the exclusive owner of what is known as a natural gas plant. As such owner in the operation of said plant, it furnishes natural gas to the public buildings situated in the city of Toledo and also furnishes natural gas to the residents of said city, charging therefor a fixed and certain rate and by such charges realizes quite a sum of money per year for the sole use and benefit of said city. As a part and parcel of said natural gas plant said city owns pipe lines, gas wells,]lumping station, telephone line aud fixtures which are partly located in the townships of Allen and Cass in Hancock county, Ohio. Is the property of said city, thus located in Hancock county, Ohio, subjected to taxation in said county of Hancock, is the question presented by the petition of said city, filed in the court of common pleas of this county and appealed to this court, praying for an injunction to restrain the county treasurer of this county from collecting the taxes assesed upon said property, by the proper and legal autlioriaties of Hancock county.

It is claimed by the city of Toledo that this property is not taxable in Hancock county by virtue of paragraph 8 of section 2782 of the Revised Statutes, as amended March 18, 1891, and found in volume 88 Ohio Laws, page 90, which reads:

"All market houses, public squares, or other public grounds, town or township houses or halls used exclusively for public purposes, and all works, machinery, pipe lines and fixtures belonging to anj' town and used exclusively for conveying water to said town, or for heating or lighting the same. ’ ’

It is further claimed by tire, city that the question here presented has been determined in favor of the city, by the circuit court of the sixth judicial circuit in the case of the city of Toledo v. Yeager, treasurer of Wood county, Ohio.

While this is true, should this court follow that decision?

While we have the utmost respect and regard for the ability and learning of the judges composing that court, their decision is reported and the' reasons given therefor, if those reasons appear to us not sound, it is our duty to say so and let the Supreme Court of the state determine it.

The foundation stone upon which that decision is built is the case of the State ex rel. v. The City of Toledo, and reported in the 48 Ohio St. page 112. The second paragraph of the syllabus reads:

"The supplying of municipal corporations and their citizens with natural gas, is a public use or purpose, for which the taxing power may be constitutionally exercised.”

The force and effect of this decision can be no greater than the facts governing the ease in which the decision was rendered. The only question arising in the case was the constitutional power of the legislature to grant to the city of Toledo the right to assess upon the residents of the city of Toledo in the nature of taxes, the cost and expense of constructing and maintaining the natural gas plant. The constitutional provision that alone applies to the case before us, was not alluded to or commented on by the judge that wrote the opinion. Mark his words on page 188 of the report.

"But to what extent the power of municipal taxation should be restricted so as to prevent the abuse of such power the constitution has not in express terms distinctly prescribed. ” “By a special constitutional restriction, etc., * * * * ” “Nor do we find elsewhere in the constitution any express prohibition that might be construed as restraining the legislature from authorizing municipalities to issue the bonds for the purpose above designated, and impose taxes for their payment. ’ ’

So that the words used in this syllabus "is a public use or purpose,” upon which much stress is laid by the judge rendering the opinion in the sixth circuit, can only apply to tli'e question of raising money by taxation for a public use or purpose, and this does not contravene any provision of the constitution, for the reason that there is no constitutional provision on the subject. But when we come to apply it to property that is claimed exempt from taxation by legislative enactment, and we find a constitutional provision on that subject. “The words public use or purpose” may have an entirely different interpretation in the light of the constitutional provision, so that we hold that the case cited from 48 Ohio St, supra, has no aplication to the question presented in the case before us.

Is this property exempt from taxation by reason of the statute cited? This depends first, whether the legislature under the constitution of the state had the power to enact the section cited, and if it had, whether the property in this action comes within the provision of the section. The article of the constitution on the subject is article XII. section 2, which reads:

“Laws shall be passed taxing by a rmiform rule, all moneys, credits, investments in bonds, stocks, joint stock companies or otherwise, and also all real and personal property, according to the true value in money, but burying grounds, public school houses, houses used exclusively for public worship, institutions of purely public charity, public properly used exclusively for any public purpose, and personal property to an amount not exceeding in value two hundred dollars for each 'individual, may by general laws be exempted from taxation; but all such laws shall be subject to alteration or repeal, and the value of all porperty, so exempted, shall from time to time be ascertained and published as may be directed by law. ’ ’

Is this “ public property used exclusively for any public purpose f ’ It must be conceded that it is public property. Is it used exclusively for any public purpose ? The city use it to supply natural gas to its public buildings. This is no doubt a public purpose; but the city further uses it to supply private parties with natural gas. Is this also in the light, of .this article of the constitution a public purpose? If it is, then the property is used exclusively for a public purpose. If it is not,then the property is partly used for a public purpose, and partly used for a private purpose; then it would not be exclusively used for a public purpose.

The character of the property, its use, public or private, can best be determined by a few authorities which we cite. Cooley on Taxation, page 173, says:

‘ ‘ But a municipal corporation may hold property not for a government purpose, but for the mere convenience of its people, or to supply some need which is commonly supplied by a private corporation, such as water or gas works, and the presumption of an intention to exclude such property from taxation would be very slight, and perhaps could not arise at all on the language of the law. Such property is deemed to be used by the corporation as is in one case, in its social or commercial capacity as a private corporation, and for its own profit. ”

3 Hill Rep. N. Y., page 539, Nelson, Ch. J., says:

“If granted for public purposes exclusively, they belong to the corporate body in its public or municipal character; but if the grant was for the purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom the like special franchise had been conferred.”

31 Penn. St. 183, Lewis. C. J., says:

“But the contracts which a municipal corporation may make for the purpose of supplying the inhabitants with gaslights in their streets and houses relate to the things of commerce as distinguished in the civil law from the things public wihch are regulated by the sovereign. Such contracts are not made by the municipal corporation by virtue of its power of local severeignty, but in its capacity of a private corporation. The supplying of gas light is no more a duty of sovereignty than the supplying of water. Both these objects may be accomplished through the agency of individual or private corporations, and in very many instances by that means. If this power is granted to a borough or a city, it is a special private franchise made as well for the private emolument and advantage of the city as for the public good. Blending the two powers in one grant does not destroy the clear and well-settled distinction, and the process of separation is not rendered impossible by the confusion. If granted for public purposes exclusively, they belong to the corporate body in its public, political or municipal character. But if the grant was for the purpose of private advantage and emolument. though the public may derive a common benefit therefrom, the corporation quaod hoc is to be regarded as a private company. ’:

88 Penn. St. page 894.

“The supplying of water and gas to a city is not a municipal duty; hence when the city undertakes to do so it. acts not by virtue of any right of sovereignty, but exercises merely the functions of a private corporation.’

48 O. St.. page 135. Dickman. J., says:

(Speaking of the use of natural gas furnished by this natural gas plant) “Nor does their use of it (citizens of Toledo) necessarily imply taxation for the payment of the principal and interest, of the bonds issued by the municipality, as the income derived from the consumption of natural gas might prove fully adequate to such payment.‘

33 O. St., page 336, City of Cincinnati v. Cameron.

“There is a distinction between those powers of a municipal corporation which are governmental or political in their nature, and those which are to be exercised for the management and improvement of pixqjerty. As to the first, t.he municipality represents the state, and its responsibility is governed by the same rules which apply to like delegation of power. As to the second, the municipality represents the pecuniary and proprietary interests of individuals, and within the limits of corporate power, the rales which govern the responsibility of individuals are properly, applicable. ’ ’

Following these authorities we hold that the property involved in this action is not ‘ ‘ public property used exclusively for public purposes,” and not being such, the act of the legislature in exempting it from taxation is in violation of article XII, section 2, of the constitution of the state, and being' so, said act is unconstitutional and void.

Again:

Article X, section 7, of the constitution, provides as follows :

‘ ‘ The commissioners of counties, the trustees of townships and similar boards, shall have such power of taxation for police purposes as may be prescribed by law.”

The power to assess under this article of the constitution is founded upon the principle of protection of property rights and the benefits derived therefrom. Each tax payer contributes to the support of the sovereingty, and in return receives from the sovereign protection to his property rights', and stich benefit as that protection affords. Taxes upon the one hand, protection and benefit upon the other hand; they travel side by side. The absence of one necessarily causes the failure of the other. The commissioners of the county, the trustees of the township, are the supreme and only authority within their respective counties and townships as to local taxation, subject only to legislative will. The commissioners of a county have no authority or jurisdiction as to local taxation, other than in the county over which they control. The trustees of a township have no authority or jurisdiction as to local taxation other than in the township over which they control. The council of a municipal corporation have no authority or jurisdiction as to local taxation other than in the municipality over which they control.

The gas wells and other property owned by the city of Toledo in the townships of Allen and Cass in Hancock county, receive its sole protection so far as police regulations are concerned at the hands of the taxpayers of these townships as well as the tax payers of Hancock county. Why should this protection be afforded, if the principle upon which this protection can alone be granted, viz: a contribution in the way of taxes by the property protected, is denied ?

No one, will contend that in the face of the article of the constitution cited, the city council of the city of Toledo can directly control, regulate or direct the rate of taxation in these townships or in Hancock comity. That cannot be done directly. Is our constitution like a piece of rubber, elastic that it can be stretched to accomplish the same purpose indirectly!' If the gas wells of the city of Toledo in this comity are exempt from taxation, you take from the tax duplicate of the county property which receives protection, and by so doing increase the taxes upon the other property in the county.

In other words, if the council of the city of Toledo should deem it necessary for the purpose of furnishing natural gas to the citizens of that city, to come into the county of Hancock and purchase its gas wells,to the extent of its purchase, the same council causes the rate of taxation in Hancock ■county to be increased, and thereby indirectly controls the rate of taxation in a foreign jurisdiction. And further, if the purchase of the gas wells was to any great extent, it might thus indirectly destroy the police regulations of the county of Hancock, and bankrupt its treasury. For it'is known, and which courts will take judicial notice of, that what are known as natural gas lands are in value largely in excess of those lands that are simply agricultural in their nature, and that the purchase of the gas right to gas lands decreases the value of the real estate, and makes it that much less valuable for the purpose of taxation.

So that, when the legislature by the enactment of paragraph 8 of section 2782 of the Revised Statutes attempted to exempt gas wells from taxation, and granted the power to a municipality to deal in said gas wells, it thereby gave to the municipality indirectly the power to control taxation in a foreign jurisdiction, which was in violation of article X, section 7 of the constitution of the state. For these reasons there will be a finding for the defendant. The petition will be dismissed, injunction dissolved, plaintiff to pay all costs, judgment for costs, execution awarded, and cause remanded for execution.

C. F. Watts and Ballard & Franlcs, for city.

Theo. Totten and John Poe, for defedant.

Day, J., dissents. Price, J.., concurs.


author: Swing, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Swing, Cox and Smith, JJ.
    CITY OF CINCINNATI ex rel. v. L. ANDERSON et al.. SINKING FUND TRUSTEES.

      Refunding of street improvement bonds. — Sec. 2729a Rev. Stat., which excludes street improvement bonds from the classes of bonds to be refunded, relates to improvement bonds issued by the city which are redeemed by monies collected by assessment on the property abutting on the improvement, but does not apply to bonds issued for street improvements by the city, for which no secondary liability rests on any property for their payment.

      Power of municipal corporations. — Except as -to incidental powers such as are essential to the very life of the corporation, the presumption is that the state has granted in clear and unmistakable terms all it is designed to grant at all. Doubtful claims to power are resolved against the corporation.

      Power of city to issue “ gold ’’ bonds. — The power to issue gold bonds not being expressly granted, and it not being essential that the bonds should be made payable in gold in order that they may be sold, it cannot be an implied power for the city to make them payable in gold.
    “ Dollar ” defined. — Sec. 2729a Rev. Stat., authorizing the issue of bonds by the city of Cincinnati to the amount of twenty six millions of “dollars,” dollars must be defined to be the unit of value of money, as enacted by congress, consisting of a legal tender currency dollar redeemable in gold or silver coin of the United States, and a bond payable in gold, excluding the payment of such bond in legal tender currency or silver coin, would be a limitation on the “dollars” used in the statute, which is not authorized without express legislation to that effect.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

This cause is in this court on error to the judgment of the court of common pleas. In that court plaintiff in error brought an action for an injunction. It was sought to enjoin the defendants, the Sinking Fund Trustees of the city of Cicinnati, from issuing the bonds of said city for the purpose of redeeming certain other bonds hitherto issued by said city in the sum of $2,973,000. It was alleged that said defendants had no power to issue said bonds, for two reasons: 1st. That the statute did not authorize the refunding of the bonds proposed to be refunded, for the reason that they were street improvement bonds; and, 2d," That the bonds proposed to be issued provided that said bonds should be paid principal and interest in gold.

The defendant filed a demurrer to plaintiff’s petition, which demurrer the court of common pleas, without árgument, sustained, and thereupon plaintiff brought the cause into this court on error to the judgment of the court of common pleas in sustaining said demurrer.

Whatever power the defendants have to issue the bonds in question, is contained in sec. 2729a, Rev. Stat., which is as follows: “That the Sinking Fund Commissioners in cities of the first grade of the first class for the purpose of refunding the bonded debt, exclusive of street improvement bonds of the city for which said trustees act, at a lower rate of interest, and for the purpose of buying the fee-simple of real estate held by the city under perpetual leases * * '* shall have power to make and issue the bonds of such city with coupons or registered, due in fifty years, and redeemable thirty years from date, bearing interest at a rate not greater than five per centum per annum, payable semi-annually, to an aggregate amount not exceeding twenty-six millions of dollars * * V’

The bonds in question proposed to be redeemed were issued under a special act of the legislature authorizing the improvement of the streets of said city with granite blocks, asplialt and other material, and it is urged that the above section prevents the refunding of such bonds.

The words of the section certainly would cover such bonds if there was any reason to think that they were intended to embrace them. But we are of the opinion that the street improvement bonds covered by the statute are the bonds issued by the city for street improvements, and which said bonds are to be redeemed by monies collected by assessment on the property abutting on the improvement. Having collected the money by assessment to pay the bonds which the city had in the first instance issued,it certainly could not be contemplated that the bonds should be refunded when the city had the money in its treasury for their payment. But the bonds in question were wholly the debt of the city, with no secondary liability resting on any property for their payment, and-they should only be paid like any other debt of the city by a tax on all the property of the city, and they differed in no respect from any other bonded indebtedness of the city. We see no reason why bonds issued by the city for street improvements which are in every respect like other bonds issued by the city, should not be refunded while such other bonds might be. And there being a class of street improvement bonds which in reason should not be refunded, the city having collected the money to pay the -same, we feel assured that it was the intention of the legislature that the provision of this section prohibiting the refunding of street improvement bonds was intended to apply to the latter, and not the former.

Have the defendants the power to make the bonds payable principal and interest in gold ?

Spear, Judge, at p. 121, in 45 Ohio St., in a few words defines the limits of the powers of municipal corporations. He says: ‘ ‘ Indeed it is conceded by the learned counsel for plaintiff that the power to pass the ordinance does not exist unless it has been expressly granted by the legislature or is clearly implied, and there is no doubt that this is the law. Power to enact such an ordinance would not be inherent in the council. Except as to incidental powers such as are essential to the very life of the corporation, the presumption is that the state has granted in clear and unmistakable terms all it is designed to grant at all. Doubtful claims to power are resolved against the corporation.-”

The law authorizes the issuing of “bonds” to the extent of “twenty-six million dollars.” It does not in terms authorize the issuing of bonds payable in gold. Is the power to issue bonds payable in gold an incidental power essential to the very life of the power granted herein to the corporation ? If not, the word “gold” can not be read into the law.

The word “dollar,” the only word used in the law which limits the word ‘ ‘ bond, ’ ’ may be defined to be the unit of value of money as enacted by the congress of the United States, and at the time of the passage of the law in question, as well as at the present time, the dollar of the United States consisted of a legal tender currency dollar redeemable in gold or silver coin of the United States, and the gold coin and silver coin of the United States. So that a bond of the city of Cincinnati, payable in dollars, might be paid either in legal tender currency, or gold or silver coin, and therefore a bond payable in gold “dollars” would be a limitation on the “dollars” used in the statute, in that it would exclude the payment of said bond in legal tender currency or silver coin.

That the insertion of the word ‘ ‘ gold’ ’ makes a material limitation on the word ‘ ‘ dollars'’ ’ used in the statutes is not denied, the very object in making the bonds payable in gold being to make that limitation, the claim of the defendants being that it would be wise for them to do so, as it would enable them to dispose of the bonds to better advantage. Whether it would be wise or not to make^this limitation, is a matter we have nothing to do with, the only question for our consideration being whether the legislature has granted the power to the defendants to so act. We are unable to see how it can be claimed that it is essential to the power to issue bonds that they should be gold bonds. The court will take notice of the fact, which everybody knows, that the city of Cincinnati can very readily sell its bonds payable in “dollars.”

The power to issue gold bonds not being expressly granted, and it not being essential that the bonds should be made payable in gold in order that they may be sold, it cannot be an implied power to make them payable in gold.

It therefore seems to us that there is no authority given in the statute for the defendants to issue gold bonds. That the legislature never intended to grant this power it seems to us. clear when the acts of the legislature at other times in relation to issuing bonds are considered.

Sec. 8307, passed in 1869, authorizes the city of Cincinnati to issue bonds in the sum of ten million dollars for the purpose of building the Southern Railroad. In 1875 the legislature authorized the said city to issue six million dollars bonds for the completion of said road — said bonds to be payable in “gold” or lawful money. In 1878 the legislature authorized said city to issue two million dollars in bonds payable in ‘1 coin5 ’ or lawful money. In the same year the legislature authorized a further issue of two million dollars in bonds payable in “coin” or lawful money.

In 1880 the legislature authorized said city to issue bonds for three hundred thousand dollars, payable in “coin” or lawful money.

The intention of the legislature in each of these acts, it seems to us, is plain, especially when considered together. The first issue of ten million dollars of bonds, which is the same wording as the present act, did not authorize the city to issue gold or coin bonds. But the next act (1875) did in express terms'authorize the issue of gold bonds, thus clearly indicating that the legislature did not intend that gold bonds should- be issued unless it gave the authority in express terms. This is further shown by the three succeeding acts in which the city is authorized to issue “coin” or lawful money bonds. Clearly under these acts gold bonds could not have been issued,for “coin” meant much more than gold; it meant gold and silver.

It is entirely proper that in considering these acts we should take notice of the discussion in the public press and the acts of the Trustees and others interested in disposing of these bonds, which led to the legislature authorizing the bonds to be made payable in “gold’ and “coin.” There was no question but what it was thought necessary that in order that the bonds might be made payable in gold or coin, that there should be the express grant by the legislature authorizing it, and that the authority to issue bonds payable in “dollars” would not be sufficient.

As bearing on the question at issue, we think the recent acts of the government of the United States throw some light. The government desired to issue bonds to the extent of $05,000,000. The law of congress authorized the issue of bonds payable in “coin.” The secretary of the treasury wanted to issue bonds payable in ‘ ‘gold coin, ’ ’ claiming that by doing so a saving of more, than $15,000,000 would be made. But he did not claim that under the law he had the right to issue gold coin bonds. The President, by special message to congress, asked authority to make the bonds payable ' in gold coin, which congress refused to grant, thus showing that both the executive department of the government, and congress, placed an interpretation on the law, that when the word coin was used, there being two kinds of coin, it meant both kinds of coin, and that it could not be limited by making them payable in one kind.

Two decisions have been cited to us, the 87 Ala. 240, and the Court of Appeals of Kentucky, reported in the Ky. Law Rep. 856, which held a contrary doctrine; and while we recognize the fact that these decisions call for the very highest consideration, it seems to us that the reasons upon which they are based are not applicable to the cases decided, and that they are contrary to the views of our own Supreme Court, as above cited.

Fred. Hertenstein, City Solicitor, for City.

Thornton M. Hinkle, for Sinking Fund Commissioners.

Under the laws of our state millions of bonds have been issued within the last*thirty years. They have been “dollar” bonds, and so far as we are aware, none have been issued payable in gold or coin except such as have been expressly authorized to be so issued, and this is the first time that the right has been asserted as far as our knowledge goes. The interpretation placed on acts similarly worded in our state covering so long a period under like circumstances is certainly entitled to great weight.

While it might be to the advantage of the city in this particular instance to issue these bonds payable in gold, we think it contrary to the policy of our state as expressed in its acts hitherto, and we should very much doubt the wisdom of such a policy, for it would certainly lead to a great deal of confusion to have gold bonds, silver bonds and currency bonds; for it certainly must be desirable for the state that all its bonds should be of equal value, and that they should all be payable in the unit of value as fixed by the congress of United States as being a legal tender. Certainly it is not to the interest of the state that it should aid in making a distinction in the value of its bonds. Whether the condition of the country is such that the distinction can not be prevented must be a source of regret to all. But, however that may be, the power to make the change.must be obtained from the legislature, for it seems clear to us that it has not been granted by it.

The judgment of the court of common pleas is reversed, and the cause remanded with instructions to overrule the demurrer, and unless the defendants desire to further plead, that an injunction be granted.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan’y Term, 1895.)
    Before Scribner, Haynes and King, JJ.
    THE BOWLER & BURDICK COMPANY v. THE TOLEDO AND OHIO CENTRAL RAILWAY COMPANY.

      Liability of B. B. Go. for merchandise contained in trunk accepted by it as personal baggage — Knoivledge of contents by B. B. Co.'— The weight of authority is, that if the baggage agent of the company, at the time he received the baggage and gave a check for it, had knowledge that the baggage contained merchandise of the kind claimed to have been in these trunks, and received it without objection, as baggage, and placed it on the train, that in case the trunk or merchandise is lost or destroyed, the company would be liable for the same upon the same principle that it would be liable for the ordinary baggage of a traveling man.

      Facts tending to show knowledge. — Where the evidence offered presented the facts that the trunks were of peculiar form, bound to getber in a peculiar manner, of great weight, and iron bound, such as are generally known as jewelry trunks; that the baggage agent was at the hotel inquiring about the baggage, and there saw the merchandise spread out which afterwards went into the trunks, although no special declaration of the contents of the trunks was made to him at the time the trunks were received by him, such facts are sufficient to require that the question of knowledge by the R. R. Co. of the contents of the trunk should be submitted to the jury to be passed' upon by them.

      Liability of B. B. Co. — Degree of care required. — The liability of a R. R. Co. for merchandise contained in a trunk accepted by it as the personal baggage of a passenger, without notice or knowledge of such contents of the trunk, is that of an ordinary bailee without reward from the time it takes such property into its possession, and it is liable for gross negligence only in case of loss or destruction of the trunk.
   Haynes, J.

(orally.)

In this case a petition in error is filed, for the purpose of reversing the judgment of the Court of Common Pleas, and for tbe reason, amongst others, “that said court erred in granting the motion of the defendant in error to direct a verdict for the defendant in error. ’ ’

The action was brought in the Court of Common Pleas to recover from the defendant railway the value of a large amount of jewelry; and the facts set up in the petition are, substantially, that the plaintiff had upon the road a traveling man, named Burdick, who took passage upon a train of defendant company at a place called Glouster, in the state of Ohio, to ride to another place, called Bremen, upon the line of defendant’s railroad. And plaintiff claimed that Burdick had in his possession as such salesman, “two trunks belonging to plaintiff, containing a large stock of watch movements, watch cases, chains, rings and other miscellaneous jewelry and jewelers’ material and findings, of the value of $4,789.12, as set forth in the schedule attached and marked ‘Exhibit A.’ And plaintiff claims also that ‘said salesman had in his possession, at said time, a certain passenger railroad ticket, known as a thousand-mile commercial ticket, bearing the name ‘ Wheeling and Lake Erie railway,’ and numbered 9,114, form H, duly issued to said salesman for a valuable consideration, by authority of defenant, and entitling him to transportation over the said lines of railway.” And the petition sets forth that said baggage was delivered “to the baggage agent at said station at Grlouster, to-wit, to J. E. Jones, who was charged with the duty of receiving baggage and other property for carriage as baggage from thence to points along defendant’s said line of railway; and plaintiff’s said salesman and agent duly requested the said baggage agent to check the said trunks with their contents, to Bremen, a certain station on defendant’s said line of railway.” That thereupon the baggage agent gave Burdick a check; and, in addition to that, Bur-dick paid to the agent thirty cents for the weight of said baggage in excess of certain amount. And it states that upon that being done, himself and said baggage were received on board the train. Plaintiff further says that in consequence of the various matters set up, ‘ ‘ defendant undertook to carry said trunks safely to said station of Bremen; and that said baggage agent, said Jones, well knowing at the time of receiving and checking said trunks as aforesaid, and at the time the same were so placed on said train, that the same contained merchandise of the kind aforesaid, and of great value, and that the said trunks did not contain the personal baggage of the plaintiff’s said salesman and agent.” It then sets up that the train started upon its journey, and proceeded to a certain point, at which point another locomotive, running in an opposite direction, upon said railroad, collided with the train, ‘ ‘ and caused a head-end collision of the said train with the said other locomotive, and the said train was thereupon derailed, set on fire and burned, together with plaintiff’s said trunks and the said contents thereof, all of which were then and there lost and destroyed. ’ ’ It then proceeds to set up that when said train was on fire said Bur-dick notified the agents at that point, the conductor, engineer and other agents of the company, that said valuable stock of jewelry of plaintiff’s was in the baggage car of said train, and requested them to remove said trunks and to assist him in removing them from said car, but they failed and neglected so to do; and it says that the same could have been rescued, and saved if the company’s agents had assisted Bur-dick in the matter. He alleges that the collision and fire were caused through the negligence of defendant’s locomotive engineer, who had charge of a certain locomotive that day which collided with said passenger train, and that it was the neglect of the engineer that caused the collision; that defendant’s officers and agents negligently drove together the locomotive drawing said train, and another locomotive running in the opposite direction at a rapid speed.

There is a general denial on the part of the defendant of the allegations of the petition.

Upon the trial of the case, evidence was given by the plaintiff tending to show that the agent, Burdick, was at Glouster with these trunks and samples; that he was at the hotel, and had these samples on exhibition at that point; that he had spoken to the railway agent, or, in any event, that the baggage agent of the railway company was there for the purpose of seeing in regard to the baggage, or making some inquiries in regard to it, and it is claimed that while this agent was at this room at the hotel, he saw the contents of these trunks spread out; that 'is to say, he saw, or might have seen all the samples of the agent in that room. Evidence was then given tending to prove that these samples were afterwards placed in these trunks and taken to the depot; that they were in two trunks known as jewelry trunks, of a peculiar form, put together in a peculiar manner, with very strong iron straps on the corners, and metal covering for the protection of the trunks, such as were commonly known as jeweler’s trunks. At the time that the agent of the company gave to Burdick the check for his trunks, it is .testified that Burdick paid him for the extra charges for the carriage of the trunks; and evidence was given tending to show that Burdick and his trunks being on board, the train proceeded on its way, and that the injury to the train was caused by the manner hereinbefore stated. There was an extra locomotive which had been used for the purpose of pulling a freight train over a high point between Grlouster and another station, and, after it had got over this high place, it was returning to the point from which it had started. Between the point where the locomotive was situated at this time and the next station to which it was returning, was a distance of several miles, which would require a certain number of minutes for the locomotive to make at its ordinary rate of running from one station to the other. The engineer in charge of the locomotive looked at his watch, and in looking, it is said, that he mistook the figures upon the face of the dial, and read it “3 o’clock,” when it was in fact fifteen minutes past three. He started to make the next station, but instead of having twenty-two minutes in which to make the station, as he supposed he had, he had but six minutes. Before lie reached the next station his locomotive collided with the train with the consequences which have been stated.

Some evidence has been given tending to prove that Bur-dick made a request to the employes of the company to help him get his trunks out of the burning car; but that point was not discussed before us, and no special stress was laid upon it.

Upon the conclusion of the plaintiff’s testimony in the court below, upon the motion of the defendant, the court directed the jury to return a verdict for the defendant; which was accordingly done, and judgment was entered upon it.

• A motion for a new trial was filed that was overruled and judgment entered, and the case was brought there.

The points which have been argued before us have taken quite a range; but in the view which we have taken of the case, it will be necessary to discuss but one or two of the points made.

It is contended on the part of the defendant company that there is no liability upon the part of the company, for the reason that the samples which were in the trunks at the time they were being carried, were not any part of the baggage of a passenger; that as a passenger he had no right to carry that class of goods. The plaintiff claims, in reply to that, that the railway company had knowledge of the contents of these trunks, and if the baggage agent received the trunks as baggage, and put them on board its train as baggage, having knowledge of their contents, that that bound the railway company, and the railway company would be liable for the same as baggage. Further than that, it is claimed that a duty arises in regard to this property other than that which would arise simply as a carrier of baggage; it is claimed on the part of the plaintiff in error that if the company received these trunks they were bound to carry them to_their destination, and that they would be liable as bailees for any act of negligence on the part of the company which resulted in the destruction of the property; that while they would not be insurers of the property in the ordinary sense of insurers of baggage, still they would be liable for their negligence in the destruction of the property. And it is claimed on the part of the plaintiff in error that the defendant, through its agents, was guilty of negligence, and of gross negligence, in the act which resulted in the collision and the destruction of the plaintiff’s property. It is also claimed on behalf of the plaintiff in error that the defendant company did have knowledge of the contents of the trunks, because of the facts : (1) That the agent who called at the hotel, saw and knew that Burdick was a traveling man; that he was there selling goods; that he had as salesman there, his samples consisting of jewelry, watches, etc., articles of that kind which he, in fact, had in his trunks at the time of his injury, and that that knowledge of the agent was the knowledge of the company; that the trunks were delivered very soon after that— within a day or so — to said agent at the railway station, receipted for by him, and checked by him as agent of the company at the station.

I should remark at this point, that this agent was not the chief agent of the company at that place, but he was an assistant. The agent at that point.was sick, and this, his assistant, was filling his place and occupying the position of agent in the checking and delivery of baggage.

Some evidence was offered by the plaintiff, and it claimed that it had the right to offer evidence to show that the company was in the habit of receiving this kind of trunks as baggage without inquiry as to their contents; that it was a custom to carry this class of trunks by a certain class of traveling men, who were so numerous that their character'and their business was well known, and the character of their trunks was well known; so that, while the company received the trunks without making any inquiry in regard to [their contents, it did so knowing that the men who carried them were traveling agents of jewelers, and that the trunks contained jewelry. We think that is a kind of evidence that should be very sparingly received. It certainly ought to be shown in order to establish a .custom that the parties who received trunks of that kind had knowledge in regard to their contents; however, we think that question is not very material to the case as it at present stands.

Very full briefs have been filed in the case, and a large nmuber of authorities have been cited. I shall refer, however, to but two or three of them in arriving at a disposition of the case.

Counsel for plaintiff in error, as he says, prepared his case and offered his evidence upon the trial intending to meet the state of facts necessary to make a case indicated by the Supreme Court of the United States in Humphreys v. Perry, 148 U. S. Reports, 627. In that case there is a full discussion of the cases bearing upon the question by Mr. Justice Blatchford, who delivered the opinion of the court. In that case it appears that “A traveling salesman for a jewelry firm bought a passenger ticket for a passage on a railroad, and presented a trunk to be checked to the place of his destination, without- informing the agent of the company that the trunk contained jewelry, which it did, and without being inqtdred of by the agent as to what it contained. He paid a charge for overweight as personal baggage, and the trunk was checked: It was of a dark color, iron bound, and of the kind known as jeweler’s trunks. It had been a practice for jewelry merchants to send out agents with trunks filled with goods, the trunks being of similar character to the one in question, and, as a rule, they were checked as personal baggage. But there was no evidence tending to shows that the railroad companies, or their'agents, knew what the trunks contained. It was held: (1). There was no actual evidence showing, or tending to show, that the agent of the railroad had actual knowledge of the contents of the trunk. (2.) There was no evidence from which it could fairly be said that the agent had reason to believe that the trunks contained jewelry. (3.) The agent was not required tp inquire as to the contents of the trunk so presented as personal baggage. (4.) The company was not liable for the loss of the contents of the trunk. The cases on the subject reviewed. ’ ’

Now, without discussing the cases referred to by that court, we may say that it seems to us that the weight of the authority is, that if the baggage agent of the company, at the time he received the baggage and gave a check for it, had knowledge that the baggage contained merchandise of the kind claimed to have been in these trunks, and received it, without objection, as baggage, and placed it on the train, that in case the trunk or merchandise was lost or destroyed, the company would be liable for the same upon the same principle that it would be liable for the ordinary baggage of a traveling man. And upon that point it also appears to us that there, was sufficient evidence offered before the jury tending to show that the baggage agent had knowledge at the time of checking the trunk that the same contained merchandise, which required that the court should have submitted the question whether the agent of the company had knowledge or not to the jury, and allow them to pass upon it.

But, back of that is another question that is, in my judgment, of more importance than that; and that is the question as to the liability of the company as a bailee of the property. Now, in the case to which I have already re-ferried — in 148 U. S., the court made citation of some authorities, and made a very full statement of them. Amongst others they refer to the case of Michigan Central Railroad v. Carrow, 73 Ills. 348. I will refer at this point to that case and the authorities which are there cited, because it seems to be an important case. That is also a case where a trunk had been taken to the depot by a traveling agent, and placed in the care of the railway company, and was checked as ordinary baggage, there being nothing about the trunk to indicate its contents, and the same was consumed by fire while being carried by the company between certain points, the company not being guilty of gross negligence in not attempting to extinguish the fire or save the baggage, and it was held that the company was not liable for the contents of the trunk. In discussing the question, they say, upon page 353:

“Upon the doctrine of these cases, it is very clear appellant was not a common carrier of the goods destroyed. Appellee gave the agents of the company no notice whatever that his trunk contained valuable merchandise. No one knew better than appellee that the company did not carry merchandise as baggage, free of charge and without notice of the contents of the trunk, and there is neither reason nor authority for holding the company liable as an insurer against loss. In Cahill v. L. & N. W. Ry. Co., Willis, J., very aptly remarks, that ‘ where a passenger takes a ticket at the ordinary charge, he must, according to common sense and common experience, be taken to contract with the railway company for the carriage of himself and his personal baggage only, and that he can no more extend the contract to the carriage of. a single package of merchandise than of- his entire worldly possessions. So we say in this case, it was not in the power of appellee to extend the liability of the company on account of his own convenience. There was no undertaking to carry merchandise, and he had no right to impose his goods subtilely upon the company, and then seek to make the obligation that of a common carrier. If he desired to have his merchandise or wares go upon the train with him, it was but just to the" carrier he should disclose its nature and value, and if the company then chose to treat it as baggage, the liability of a common carrier would attach, but not otherwise. ”

Which, in my own individual judgment, is a very sound doctrine. But in further discussing this case, they ¡make some further statements and ruling in it fo which I will .refer. After discussing the case at some length further, they say:

“It is not intended to declare, because the company may not be liable as a common carrier or bailee for hire, its servants may, with impunity, steal the contents of the package intrusted to its care, nor omit all care for its safety. The negligence, however, that would render the company liable where it has no notice, and the passenger fails to give notice that his baggage contains anything else other than baggage proper, must be that which is defined as ‘ gross negligence, ’ being that high degree which indicates the absence of the slightest care. Gross negligence has always the' element of recklessness. It can hardly be said to be gross with that element wanting. ’ ’

And they further say:

‘ ‘ The bailment in this instance must be regarded as having been made for the exclusive benéfit of appellee. It could be nothing else, for, as we have seen, the company had no knowledge it had in its possession valuable merchandise. Holding, as we do, the company was only a bailee without reward, as to the contents of appellee’s trunk, it was only obligated to slight care, and could only be answerable for gross neglect. Bnt the evidence shows that the company took more than slight care of the goods. Certainly there was no gross negligence, within any definition that can be given of that term, on the part of the employes in charge of the train. ’ ’

And they therefore hold that the judgment of the court below, which had been in favor of the appellee, should be reversed.

Now, going back to this case in the United States Supreme court, I will say that court discussed the case of Michigan Central Railroad Co. v. Carrow, and also the case of Haines v. Chicago, 29 Minnesota, and Pfister v. Central Pacific R. R., 70 California, and they then say:

“In the present case there is no allegation in the intervening petition of any gross negligence in the receivers, nor does the evidence make out any.’’

It is said that they, at least inferentially, held, or that they would have held, if there had been any gross negligence shown by the evidence, that the company was liable.

I, myself, do not think that that inference should be drawn from it; they simply say there is no evidence upon the point, and therefore they cannot hold the company liable, even if the law should be as the parties claim.

This case, however, in my judgment, must be decided by us upon the case in 35 Ohio. St., The Pennsylvania Company v. Miller & Co., which will be found at page 541. In that case a party had taken passage on a Pennsylvania company train, and had delivered his valise to a baggage agent, and received a check for it, and it had been put on board of the train and carried to its place of destination, where it arrived that evening, and the party himself went into the hotel attached to the depot and staid during night, and the next morning he went to find his baggage, and ascertained that during the night it had been stolen from the baggage room where it had been placed. In that case the court say:

“The valise in question having been safely carried to its place of destination, and there received by the agent of the carrier and placed in its warehouse, the question arising on the charge is, whether the rule laid down by the court for the guidance of the jury, prescribes a higher standard of care than the, law requires. It is claimed on behalf of the carrier, that it does; and that, if the carrier can be held at all, it can only be for gross negligence.”

As was said in Griffith v. Zipperwick, 28 Ohio St. 388, “The term gross negligence is scarcely susceptible of legal definition; but there is a degree of care (infinitely varied by the nature of the deposit and the circumstances of the case) which is so designated, and will render the depositary liable if a loss results therefrom.”

Accordingly, it was held in that case that good faith requires, generally, that a bailee, who is only liable for gross negligence, should keep the goods intrusted to him with as much care as he ordinarily keeps his own of the same kind; and that he should also keep them with such a degree of care as is reasonable, with reference to the nature of the goods and the particular circumstances of the bailment.

In the present case the valise did not contain what was properly baggage. The contents consisted of samples of merchandise, which the agent of the plaintiff carried with him to facilitate his business in making sales. The implied undertaking of the carrier, to insure the safe carriage of baggage, did not, therefore, extend to those goods. He was not, however, for this reason relieved of all responsibility in regard to the safe carriage and keeping of the property. By voluntarily taking it into his charge, and finally putting it in his warehouse for safe keeping, he assumed the relation to it of an ordinary bailee.

The court told the jury that the duty growing out of this relation, was to take such care of the property as an ordinarily prudent man would of his own property under like circumstances.

With the general rule thus stated, we find no fault; and a less degee of care ought not, in our opinion, to be allowed.

And they held that the evidence in the case did not warrant the verdict, and reversed the judgment of the court below. I will read the second division of the syllabus in the case:

‘ ‘ The implied undertaking of a carrier to insure the safety of baggage, does not extend to the contents of a trunk, consisting of samples of merchandise, which the passenger, a traveling salesman, carries to facilitate his business in making sales. But the carrier, by taking the property into his charge and putting it in his warehouse for safe-keeping, assumes the relation to it of an ordinary bailee, and he is bound to take such care of the property as a' man of ordinary prudence would of his own, under like circumstances. ’ ’

It is very earnestly urged here by counsel for defendant in error, that the.only point decided in that case was, that the liability of the company only commenced at the time of putting the baggage into the depot, and that that liability was only that of a bailee, and that the rule was not intended to be pressed further than that. But it seems to us, after a careful reading of the decision of the court and the syllabus of the case, that the court held, and intended to hold, that the obligation of the company from the time of the taking of the property into its possession for carriage, was that of an ordinary bailee. Entertaining that view, we are of the opinion that the court of common pleas should have submitted to the jury the question as to whether the defendant company had been guilty of negligence such as would make it responsible for the loss which occurred here. Whether that should be, under this decision, ordinary negligence, or a high degree of negligence, would be for the court to say to the jury. It seems to me that the Supreme Court of this state differs somewhat from the Supreme Court of Illinois as to the degree of negligence required to fix a liability upon the company, and the degree for negligence for which it will be responsible. I will say for myself, that I concur in this opinion with a great deal of reluctance, but, because of the decision of our own Supreme Court, I feel that I am bound to concur in this opinion. I have felt for myself that in a case of this kind there should be no liability as a bailee on the part of the defendant company. The property is placed by the’ passenger in the charge of the company without a statement as to its contents, without any information that he is carrying a large amount of property; he places it in their custody surreptitiously ; he seeks to obtain the transportation of the property of a large amount in value, without any cost or expense to himself, and he wants to cast upon the defendant company the liability at least of a bailee of some kind, and to make it responsible for the- property in case of negligence whereby it is lost. Now, his contract is, to carry himself; and impliédly the. contract is that he may carry certain personal baggage. There is a contract between him and the company in relation to that matter. There is no contract between him and the company for anything else, and it seems to me, when he makes a claim for loss of merchandise, that it is a sufficient answer for the compány. to say, “We have never entered into a contract with you in regard to this property; we have never knowingly received it, and it never came into our care with our knowledge or consent. ’ ’ And, that should be a sufficient answer to any charge of liability on the part of the company as bailee. But we think the Supreme Court have held, in the case which I have cited, and other learned courts have held — and there are none of'the Supreme Courts that have held to the contrary so far'as I know — that there is a certain degree of liability; that if the property is in the possession of the company, it is liable, at least, for acts of gross negligence whereby the property is destroyed. In case the company knowingly receives the merchandise as baggage, the rule may well be different — it can refuse to take it, or if it choose, it has the power to charge for its carriage rates corresponding to the responsibility assumed.

Gilbert & Hills, for plaintiff in error.

A. W. Scott, for defendant in error.

In this view of the case, the judgment of he court of common pleas will be reversed, and the case remanded for a new trial.


author: Hay, J.

text:
    (Third Circuit—Hancock Co., O., Circuit Court
    May Term, 1895.)
    Before Seney, Day and Price, JJ.
    POWELL CROSSLEY et al. v. THE CITY OF FINDLAY et al.
    1. Except’ in cities of the first class, all assessments against abutting property, authorized to be made by a municipal corporation, to pay the cost and expense of a street improvement, are limited to twenty-five per cent, of the value of such abutting property.
    2. The value of such abutting property upon which the said' twenty- • five per cent, is to be ascertained and assessed, is the value, as fixed by the decennial aj>praisement for purposes of taxation, in force at the date of the passage of the ordinance ordering and providing for the improvement.
    Appeal from the Court of Common Pleas of Hancock Count)'.
   Hay, J.

The plaintiffs Powell Crossley and Mary Utz, who were owners of lots 14(5(5, 1467, 2282, 2283, 2394, 2395, 2400 and 2401, in one of the outlying additions to the City of Findlay, Ohio, began their action in the common pleas court to enjoin the placing on the duplicate and collection, of an assessment made against said lots for the improvement of a portion of Main street of said city, by paving it with brick blocks; for the reason claimed in their petition, that the assessment was not made in accordance with the plain provisions of law, and was therefore illegal and void. A number of grounds, upon which the claim of illegality was founded, were stated in the petition as a basis for an injunction; and among them the ground that the amount assessed and apportioned to the lots, was largely in excess of the limit fixed by law, of twenty-five per centum of the value of the lots, as fixed for purposes of taxation. The action was commenced in May, 1893; the petition being filed May 29, 1893. Under various decisions of the Supreme Court covering the questions, and deciding them, one by one the grounds upon which plaintiffs predicated their right to an injunction were disposed, of and dropped out, until only the one remains; namely: The amount assessed against and apportioned to these lots is in excess of the lawful limit of twenty-five per cent, of the valuation thereof, as ascertained and fixed for taxation purposes. This claim is denied by the city authorities, by an answer filed; and this assertion and denial forms the single issue to be tried and decided by this court; and, in the form in wdiich the matter is presented and substantially agreed upon, this is not a question of fact, but rather a question of law arising on the undisputed facts. There is no dispute as to the facts. The material and controlling facts are agreed upon, and are:

On March 30, 1890, the council of the city, upon recommendation of the board of improvements duly passed a resolution declaring it necessary to improve Main street, from the O. H. &. D. Railroad north to the north line of Frazier street, by grading and paving the same with fire clay brick; the cost and expense to be assessed upon the lots and lands abutting upon said Main street between tlie points mentioned, according to law. The lots in question abut on said street.

On April 14, 1890, the council duly passed an ordinance, ordering and providing for the improvement of Main street, between said termini, in the manner set forth in the resolution to improve, and providing, “That the cost and expense of the improvement be assessed upon the lots and lands bounding and abutting upon said street, between said points, by the foot front according to law, as hereafter to be provided by proper assessment ordinance.” The improvement was made without delay, and the council to provide for the payment of the cost and expense thereof, on February 2, 1891„passed an ordinance apportioning the said cost and expense, and assessing the same against the abutting lots by the foot front, and upon each foot front. The aggregate valuation for taxation, of all the' lots, on April 14, 1890, the day the improvement ordinance was passed, was $1,200. This valuation was the decennial appraisement of 1880, and was the valuation upon which taxes and assessments payable in December, 1800, and June, 1801, was levied and assessed. The aggregate valuation of the said lots, on February 2, 180.1, the day the apportionment and assessment ordinance was passed, was $0,720 — and was the decennial appraisement, made and returned in July, .1800, for the decade following 1800. The valution of $1,200.00 was the decennial appraisement for the decade following 1880. Section 2270, Rev. Stat., provides a limitation on the amount that may be assessed against lands and lots for any purpose of improvement, as follows:

‘ ‘ The tax or assessment specially levied and assessed on any lot or land, for any improvement, shall in no case, except as provided in section 2272, amount to more than twenty-five per centum of the value of the property as assessed for taxation;” and providing the excess of cost above twenty-five per centum, shall be paid by the corporation out of its general revenue. The exception as provided in sec. 2272 is as to cities of the first class, and does not apply to Findlay. If the valuation existing at the date the ordinance ordering and providing for the improvement was passed, is to obtain, the assessment is largely more than twenty-five per centum of the valuation; while by the valuation at the time of the assessment ordinance, in February 1891, there would be no excess in the amount assessed; so the important question is, which valuation is to be regarded? By which one is the rights and liabilities of the parties to be ascertained?

Upon the enactment of a valid ordinance to improve a street, which is subsequently carried into effect by the construction of the improvement, the abutting lots and lands benefited become liable for,the reasonable cost and expense of its construction, within the limitations prescribed by the statute; and the rights of the owners of such abutting property is also fixed and established. The same facts and conditions that fix and establish the liability of the property, should, and we think does fix and define the rights of the unfortunate owner. Both arise out of, and are defined and determined by, the same facts. It cannot be that the liability of the owner is fixed and defined by one condition of facts, and his rights in the premises by another and different condition, arising subsequently. . In Cincinnati v. Seasongood, 46 Ohio St. 296, the Supreme Court treats and speaks of the rights and liabilities of the owner of abutting property with respect to assessments for street improvements, as the same, as concurrent and equal in every respect, and arising out of and resting on the - same condition of facts. One of the most valuable rights belonging to the owner of abutting property — vested in him, may be, as a protection against incompetence or worse — is the right to have assessments limited to twenty-five per centum of the value of his. property as fixed by law for purposes of taxation. The lot owner may well be presumed to be aware of his rights in the matter, and to have considered and estimated the probable cost and expense of the improvement to him, before petitioning for, or consenting to the improvement; and the estimate of cost would most certainly be made on the basis of the valuation existing and in force at the time it is made. Acting on this theory, does it do violence to assume that the necessary number of petitioners, to warrant the council in ordering the improvement, were secured on the just expectation and belief that the valuation in force at the time, was the lawful one, by which their rights and liabilities would be governed; and would it not operate as a wrong, and not permissible, to make the assessment and apportionment o'f the cost and expense on a valuation subsequently made, and clearly not contemplated by the petitioners for the improvement, or any one interested in it.

While the precise question we have here has not, in terms, been decided by the Supreme Court, yet we think, in the case of Cincinnati v. Seasongood, ¡tupín,the question is substantially settled. The syllabus of that case is as follows: ‘1A municipal corporation haying through its proper boards and officers passed a resolution and ordinance to improve a street, in its assessment of the cost and expense of the improvement upon the abutting property, it should be governed by the law in force at the time of the passage of the improvement ordinance, with respect .to the manner of assessment and the rights and liabilities of the owners of abutting property.” Here is held the principle, that the facts and conditions, existing at the time the improvement ordinance is passed, governs with respect to the rights and liabilities of the owners of abutting property in the assessment to be made to cover the cost and expense of constructing the improvement. In this case, as we have seen, a material fact existing at the date of the passage of the ordinance to improve Main street from the C., H. & D. Railroad north to Frazier street, was the valuation of plaintiff’s property of $1,290' — made for the decade following 1880, and we conclude that is the valuation' — the fact, by which the rights and liabilities of the plaintiffs are to be ascertained.

S. E. Hurin and F. C. Aon.pt, for plaintiffs.

W. F. Duncan, for the City of Findlay.

We find for the plaintiffs, the assessment to the extent it is in excess of twenty-five per centum of the valuation of $1,290 — is illegal and void, and as to such excess the injunction is made perpetual. As to the amount, not in excess of twenty-five per cent, of $1,290, the injunction is dissolved. The defendant, the City of Findlay, is ordered to pay the costs. Execution is awarded for costs, and cause remanded for execution.


author: Day, J.

text:
    (Third Circuit—Hancock Co., O., Circuit Court
    May Term, 1895.)
    Before Seney, Day and Price, JJ.
    FRANCES BORMUTH, by her next friend, v. ANDREW BEYER. EMMA BORMUTH, by her next friend, v. ANDREW BEYER.
    1. In a civil action, by a female, to recover a money judgment for a criminal assault, the petition contains a general statement of facts, in substance : That the defendant made an assault on her with criminal intent, and took unwarranted liberties with her person, without her consent, and frightened, humiliated and injured her to an extent of 85,000, for which she prays j udgment. The facts stated constitute a cause of action in favor of plaintiff and against defendant, and the petition is good as against a general demurrer.
    2. The provisions of section 4986 of the Statute of Limitations is not a saving provision merely to persons under disability, but forms an exception to a general rule, and excepts the persons therein named from the operation of the general provision of section 4979;' so that time does not begin to run against persons under the disability of infancy when a right of action accrues, until such disability is removed.
    Error to the Court of Common Pleas of Hancock County.
   Day, J.

These two cases are similar in their facts and in the ruling made by the court below on the facts and the decision of the legal question involved disposes of both cases.

The facts stated in the petition in each case as a cause of action are in substance; that Andrew Beyer is a duly ordained minister of the gospel, and for years was pastor of a congregation at Genera, Ohio. He also understood and taught music. The plaintiff is a female of tender years; was, at the time of the wrongs complained of, and still is within the age of minority; was a member of the flock at Genera, and worshiped and learned music under Beyer’s ministrations. While these relations were existing, on June 1,1892, Beyer made an assault on plaintiff with criminal intent, and at diverse other dates between June 1 and August 1, 1892, made assaults on her with such intent, and took unwarranted liberties, without her consent, and. frightened her; and defendant’s conduct became known to the public, and she was humiliated, discredited and injured to the extent of $5,000, for which sum judgment is prayed. The petition was filed February 19, 1895. The common pleas court sustained a general demurrer to this petition, and the plaintiff not desiring to further plead, judgment was entered dismissing the petition and requiring plaintiff to pay costs. Plaintiff prosecutes error here, and the action of the court sustaining the demurrer and dismissing the petition is complained of.

As against a general demurrer, we regard the averments of the petition as sufficient. The facts therein stated constitute a cause of action in favor of plaintiff and against the defendant. The demurrer admits that defendant made an assault on plaintiff; that is, offered violence to plaintiff’s person, with criminal intent, and frightened, humiliated and injured her. • In such case, the law gives a right of action to the person aggrieved, and a very general statement of the facts of assault and injury is good as against a general demurrer. But we understand the court below did not base its action in sustaining the demurrer on this ground; in fact, did not decide the question raised as to the sufficiency of the facts stated at all; but sustained the demurrer solely on the grounds that it appears from the facts pleaded, that the bar of the statute of limitations had intervened; and the disability of infancy not having been removed, plaintiff had no right of action, and would not have until she arrived at full age: in short, holding that the time of limitation, as against a person under disability, begins to run when the right of action accrues, and not when the disability is removed. .

The plaintiff, as appears, was under the disability of infancy when the right of action arose, and when the action ■was commenced. In case of assault and injury, the limitation is one year, and this cause of action accrued more than one year before the action -was commenced; so the question is squarely presented and cannot be evaded: When does the statute of limitations begin to run against a person under disability at the time the cause of action arises? If at the time the right of action accrues, it has already run against the plaintiff, and in such case it is doubtful if she can bring action until her infancy is removed and then by virtue of the provisions of section 4986 Rev. Stat., saving the rights of persons under disability. If, however, the statute does not begin to run until the disability is removed by plaintiff attaining her majority, then the bar of the statute has not intervened, and the action is properly brought.

A proper solution of the question here presented, is to be had by noting the peculiar provisions and position of the different sections of the statute providing a limitation as to time of commencing actions and saving of the rights of persons under disability, with a view of ascertaining if the saving section is a saving merely, or whether it forms an exception to the general rules, for that seems to be the test. Angelí on Limitations, at sections 476 and 485, states the rule as follows: “The statute of limitations runs against all persons, whether under disability or not, unless they are excepted from its operation. ’ ’ The statute of limitations of this state, section 4979, Rev. Stat., provides: “Civil actions, other than for the recovery of real property, can only be brought within the following periods after the cause of action accrues. By the provisions of this section, standing and considered alone, there is no exception. In all cases, and against all sorts of persons, time begins to run from the moment the right of action arises. But in the same title 1, division 2, chapter 2, and subdivision 3, is the section saving to persons under disability, section 4986, which provides : “ If a person entitled to bring any action mentioned in this subdivision, except for a penalty or forfeiture, is, at the time the cause of action accrues, within the age of minority, etc., such person may bring suoli action within the respective times limited by this subdivision, after such disability is removed.” The sections constituting subdivision 3, of title 1, division 2, chapter 2, must all be considered together, for the purpose of discovering the legislative intent; and considering and construing sec. 4986 with sec. 497.9, and reading the provisions of 4986 into 4979, the intention of the law maker becomes quite apparent, and plainly was, to except persons under the disability of infancy from the operation of the general limitation provided by section 4979. We are all of opinion that the provision of sec. 4986 forms an exception to the general provision of section 4979, and that time does not begin to run until the disability mentioned in section 4986, is removed.

H. Waller Doiy, for plaintiff in error.

Shafer & Shafer and Jno. Poe, for defendant. ■

If we are correct in this conclusion, the court below was in error in sustaining the demurrer and in dismissing the petition, for which error the judgment, in both cases, is reversed, and cause remanded to the common pleas to be further proceeded with.