text:
    APPLICATION OF THE GRADE CROSSING ACT.
    Circuit Court of Lucas County.
    The Wheeling & Lake Erie Railroad Company v. The Toledo Railway & Terminal Company.

    Decided, November 9, 1907.

      Grade Crossings — Construction of the Act Relating Thereto — Meaning to be Given to the Words “Reasonable” and “Practicable” — Continuation of Grade Crossings Will Be Permitted, When — Policy of the Law to Protect Persons and Property from Injury and the Rights of the Railway Companies Alike.

    1. While one of the purposes of the grade crossings act is to conserve the public safety, railway companies will not he required to avoid such crossings unless it is reasonable and practicable so to do.
    2. Where an interlocking device has been in use at a grade crossing for a considerable period, with favorable results from its 'operation and comparatively little interruption to the trains of either road, and to avoid the grade crossing would involve heavy expenses and other hardships to the railway companies, a case is not presented requiring the preventive application of the statute.

      Beiders & Duncan, for plaintiff.

      King *& Tracy, contra.
    Wildman, J.; Haynes, J., and Parker, J., concur.

       Affirmed, without opinion, Wheeling & Lake Erie Ry. Co. v. Toledo Ry. & Terminal Co., 80 Ohio St., 540.

   For an understanding of the issues before us on the present hearing and the facts involved, recourse may be had to the recitals in the hearing of the same ease before the Supreme Court of Ohio as reported in 72 O. S., 369, on a proceeding in error to reverse the former judgment in this court. The case' was treated by the Supreme Court as involving an application for the ascertainment of a mode of crossing of the Wheeling & Lake Erie Railroad Company track by the Terminal Company, and was remanded to this court for the purpose of such ascertainment. The crossing of the plaintiff's tracks not having been enjoined, the Terminal Company proceeded with its construction across the plaintiff’s roadway and has been in continuous operation 'of its line at that point for about' four years. The issues, so far as concern our present inquiry, are based upon' the original act as to grade crossings (95 O. L., 530), which was passed and took-effect May 10th, 1902.

The amendatory act of May 3d, 1904 (97 O. L., 548), is prevented by Revised Statutes, 79, from affecting a pending proceeding, but it may have use as indicative of the tendency of the Legislature to protect the future interests of any younger company in two important respects; first, by providing that no grade is to be required to exceed the established mavirmnn 0r ruling grade of such company; and, second, that the initial expense of construction and the expense of maintenance are to be equitably apportioned between the companies.

It is doubtful whether under the original act which governs the present case, the court would have power to impose any part of such expense on the elder company. Such was the view of the Supreme Court of Pennsylvania in Pennsylvania R. R. Co. v. Warren Street Ry. Co., 188 Penn. St., 105, in which it was said: “The courts have no power * * * equitably to apportion the expenses among those interested.” The provision as to not exceeding the ruling grade, however, indicates that in 1904 the Legislature deemed it not so imperatively necessary to avoid a grade crossing as to justify imposing a burden on the crossing company which would destroy the effectual operation of its road; in other words, that so to require would not be reasonably within the contemplation of the law when applied to the junior road. Both the original and amendatory statutes provide that: “If in the judgment of such court or the judge thereof it is reasonable and practicable to avoid a grade crossing, it shall by its process prevent a crossing at grade.” It is argued by counsel for the plaintiff that the term “reasonable and practicable” as embodied in our Ohio statutes, is synonymous with the term “reasonably practicable,” as found in the Pennsylvania statute. It is said that the Ohio legislators have adopted the legislation of the older state and that the phraseology of the Pennsylvania statute had received interpretation by the courts of that state which was presumably adopted with the enactment of our statute.

Before considering this contention, but assuming the general correctness of the principle claimed; which is recognized by the courts of Ohio in numerous cases, let us examine the phrase as used in the Ohio statute, comparing it with the one of Pennsylvania, in an effort to ascertain whether or not they are equivalent. The word “practicable” in either state may properly be defined as “feasible” or, in other words, “possible of accomplishment.” The word “reasonable” as we find it in the Ohio statute, has been treated as substantially synonymous with the word “fair” in, Jones v. Angell, 95 Ill., 376-382; with “impartial,” in Thompson v. Beacon Valley Rubber Co., 56 Conn., 493-498; with “just,” opinion of the Justice, 4 New Hampshire, 565; and by Webster with the words “just,” “honest,” “equitable” and “fair.” Substitute any one of these alternative words for “reasonable” in our statute, and we have a phrase signifying that a grade crossing will not be prevented unless it can be justly, honestly, equitably or fairly done, having due regard to the rights and interests of both parties.

To the extent that the senior company has improved its right-of-way by its structures and expended its money, the companies do not stand on an equal footing; and the statute, both in its original.form and as amended, wisely attempts to protect as far as possible the rights acquired by such use. It might be unavoidable for a crossing company to injure or destroy property in crossing, and under the principle enunciated in Railway v. Railway, 30 O. S., 605, even this would be permissible if demanded by the public welfare. The statute under which we are proceeding does not prohibit injury to property rights of the occupying company, but requires that in crossing the least practical (that is substantial) injury shall be inflicted. The implication is irresistible that some injury may be unavoidable if the junior company is permitted to cross at all'. Therefore, if none other than a grade crossing is reasonable, that is to say, just, fair and equitable to both parties, the court will permit such mode of crossing, although it might be practicable, so far as mechanical conditions are concerned, to cross in some other way. For whatever injury to property is sustained by the older-company, just compensation should be awarded1 in any proceeding to appropriate a right-of-way across its line. But it is not the policy of the law,-while seeking to protect the just rights of the companies and protect property and persons from unnecessary injury, to place insurmountable obstacles in the way of improved means of conveyance or transportation. It is the benefit which flows to the public from such better transportation which justifies the exercise of the right of eminent domain in behalf of private corporations.

It is unquestionably the policy of our state, as indicated by the legislation of which the acts already referred to form a part, ,to protect lives and property as far as it can practically and reasonably be done, and without prohibitive interference with lawful and beneficent enterprises, by preventing crossings at grade. With the qualifications stated, the requirement of the statute is mandatory. It is urged in behalf of the plaintiff company that, in view of the construction placed upon the prior enactment of the state of Pennsylvania by the courts of that state, the phrase “reasonable and practicable” embodied in the Ohio law will not bear the interpretation which I have given to it. We- are not informed, other than by the general similarity of phraseology and the fact that the Pennsylvania statute was enacted many years before that of Ohio, that the one is a copy of the other; but, assuming it to be so — and it is highly probable that the claim of counsel in that respect is correct — we think that the very fact that the copy departs from the original in the respect to which reference has been made, is a fact of importance as suggesting the intention of our Legislature. If the framers of our statute had before them that of Pennsylvania, it is manifest that either by inadvertence or designedly, the term “reasonably practicable” was not adopted. In the Pennsylvania statute the word “practicable” is qualified by the adverb “reasonably”; not so in the Ohio enactment, but two qualifications are made to the direction to the court to prevent a grade crossing by its process; the one is, when it is not practicable to avoid such crossing, and the other, when it is not reasonable.

It is not an unfamiliar principle of statutory construction, and one which appeals to our common intelligence, that where one act is copied or amended with any material change of phrase-©logy, the inference is to be drawn that the change was intended. The case of Bloom v. Richards, 2 O. S., 388-402, is an instance. Judge Thurman in that case used these words, “It is a general presumption that every word in a statute was inserted for some purpose”; and again, “When a considerable change is made in the phraseology of a former law, the inference is reasonable that a change of meaning was also intended.”

Referring again to this argument of counsel for plaintiff, that the adoption of the Pennsylvania statute carries with it the construction placed upon that statute by the Pennsylvania court, we are cited to a long line of eases, beginning with the 77 Pa. St., 172-184, Pittsburgh & C. R. R. Co. v. S. W. Pa. Ry. Co., and including 207 Pa. St., 406, B. & O. R. R. Co. v. Butter Ry. Co. Two of the cases cited, R. R. Co. v. R. R. Co., 203 Pa. St., 176, and 207 Pa. St., 406, supra, were decided by the Supreme Court of Pennsylvania after the enactment of our statute, and, manifestly, can not have been adopted by our Legislature. It is, however, clear that the tendency of the Pennsylvania court from its first expression in application of the statute of that state to the present time, has been to enforce more and more strictly the mandatory requirements of the statute. In the earliest of the cases cited it was said, in substance, that it was the policy of the law to discourage' grade crossings; in the 150 Pa. St., 193, 194, Perry Co. R. R. Co. v. R. R. Co., that courts should prevent such crossings, except in case of manifest imperative necessity; in the 198 Pa. St., 1, R. R. Co. v. Lawrence County, that they should do so except in cases of “unavoidable necessity”; but whatever may have been the construction placed upon the act from time to time, it was always based upon the phraseology peculiar to the Pennsylvania statute and adopted only in part by our own.

Another use has been made of this argument by counsel for the plaintiff, to-wit, that by following the Pennsylvania legislation in our statute under consideration, the principles enunciated in Railway v. Railway, 30 O. S., supra, have been abandoned. It is said, and correctly, that the act as to crossings does not leave the two companies on an equality as to rights; that the senior road is preferred to the junior; but we think that this is so only in the manner and to the extent already stated. The easement first acquired by the plaintiff is as. much a qualified title as it was before the act of 1902.

The importance of this fact is apparent when we consider the emphasis placed by counsel for plaintiff in error upon their claim that at the time when the Terminal Company instituted its pro.eeedings for the appropriation of a right to cross, the plaintiff had in contemplation certain plans of development and use of its property which will be substantially destroyed by permitting a grade crossing. It is claimed that this may not legally be done, and some reliance is placed upon the Pennsylvania decisions, including Railroad Co. v. Railroad Co., 203 Pa. St., 176. A reference to that decision discloses the fact that it was argued in the Supreme Court on May 5, 1902, five days before the enactment of the Ohio law, but the decision of the court as announced in the opinion of one of its judges on page 182, bears date May 19, 1902, nine days after the passage of the Ohio statute. The ease may be useful as a precedent, but it is not authoritative and would not be followed in any conflict with the principles established in our own court. We are not clear that it is necessarily so in conflict. It is to be read-in connection with the other cases decided by that court and in construction of the Pennsylvania statute.

The evidence submitted to us on the trial of this cáse has impressed us with the view that inquiries of this character might more wisely be left to the determination of a body of expert engineers, as has been done in some of the states. The case is one of great importance and of great difficulty. It has become manifest that either to permit or to prevent a crossing at grade will be attended with much inconvenience and financial loss to one or the other of these companies. We may, however, form some idea as to the extent of such inconvenience and loss to the plaintiff company by a crossing at grade from the fact that such a crossing has now been maintained for a period of about four years. In obedience to another Ohio statute, an interlocking device has been established and maintained, with the result that up to the present time no collisions have occurred between trains of the two companies. A witness whose duty calls him to continuous observation of the passage of engines and trains at the point of crossing, testifies that there has been but very slight interference with the movements of such engines and trains of the plaintiff company; that ordinarily in the operation of the inter-locker, tracks of the plaintiff company are kept free for the passage of its trains. That there has been some inconvenience and delay, there can be no doubt, but has it been of such a character and extent as to justify the imposing upon the defendant company the burden of an overhead crossing? It is conceded that the crossing must be either at grade or above. The ruling or maximum grade of the defendant company is sixty-five hundreths of one per cent., and while the amendatory statute of 1904 can not be'applicable to the present proceedings as a governing factor, they may suggest what in the judgment of the Legislature might be a reasonable requirement in a crossing company under the original law. To construct an overhead crossing at the grade mentioned would entail an expense, as claimed by the defendant company, of upwards of $240,000. The estimate of experts called by the plaintiff is considerably lower, but the precise amount is not important; it suffices that, upon either estimate, the expense would be very great. The defendant contends that a crossing at any higher grade would not only be unreasonable, in view of other difficulties to be encountered, but would be impracticable. Experts for the plaintiff have suggested a construction of a one and one-half per cent, grade at an estimated cost of $76,000 and no cheaper plan has been proposed by either side. Several substantial objections are made to a 1% per cent, grade by counsel for the defendant. They are in part as follows:

That it is a grade known as a “momentum grade,” requir-' ing for the passage of heavy trains over it a speed of at least twenty-six miles an hour, while the engines used by the Terminal Company have a maximum speed of only twenty miles an hour. These engines can not go faster, with safety, and engines of a different character would be unsuitable to the requirements of the defendant’s business. The terminal is a belt line, engaged in the work .of transferring trains to and from various railroads entering the city of Toledo, and taking and delivering freight at various industrial plants along its line. To require an entire change of its motive power would, it is claimed, interfere with the purposes of the company to a far greater extent than interference would be or has been caused to the plaintiff company by the crossing at grade. In response to a suggestion that the necessity for high speed to overcome such grade might be obviated by the use of a pusher-engine, evidence is offered that the maintenance of one such engine at the. crossing would involve an expense of $60 for every twenty-four hours, an aggregate of more than $20,000 a year.

Various other difficulties are suggested, which I will not enumerate, in the way of the adoption of this suggested grade of iy2 per cent. We have concluded, in view of all the circumstances before us, that while the consummation of the plan might be within the bounds of feasibility, the expense of its construction and maintenance and the hazard and inconvenience attendant upon its use, coupled with the dangers which might arise from the suggested speed at street crossings, and possible municipal regulations as to such speed, all render the adoption of the plan one that it would be unreasonable to require.

As to the other plan — or a 65 per cent, grade — we think that the great cost may fairly be taken into account. In nearly all of the Pennsylvania cases cited the element of expense received consideration from the court, and wherever a crossing at grade was prevented the action of the court seems to have been based partly upon the fact that the expense was moderate. In this connection it should not be overlooked that our original statute contains no provision for an equitable apportionment of the expense between the two companies. If the crossing should involve a cost of from $200,000 to $240,000, the plaintiff would, unquestionably, insist that it should be entirely borne by the defendant. I have already quoted language from the case in 188 Pa. St., supra, which might be used to sustain such contention. The adoption of a 65'per cent, grade — which is the highest grade conceded by defendant to be feasible — would necessitate a change of the established grade of certain streets of the city of Toledo and would, it is claimed, cut off convenient access to industrial plants, to the great injury of defendant’s business. Upon this point, as upon the other, it would not be profitable to go into a review of the evidence.

We are of the opinion that although this statute can by its terms be invoked only by one of the corporations interested, one of the purposes of the statute was to conserve and protect the interests of the public. Grade crossings, in the interest of safety, are to be avoided if it is reasonable and practicable so to do, but considering the uses made of these tracks by both companies, the results of their long experience with the interlocking device, the comparatively slight interruption of the trains of either, the expense and other difficulties attendant upon the construction of any suggested overhead crossing, we are unanimously of the opinion that the ease is not one requiring the preventive application of the statute. We feel that to require an overhead crossing is not so imperatively demanded in the interest of public safety as to justify the placing of this heavy burden on the defendant. The public has an interest in the continued prosperity and development of the enterprises inaugurated by both companies, and the court should not adopt a.harsh construction of the law and application of the evidence resulting in seriously affecting such prosperity and development. Any operation of a railroad is attended with some danger to persons engaged in such operation and others, but in spite of such danger, in view of the great benefits derived by the public, the enterprises are fostered and encouraged. It is our judgment that the petition of the plaintiff be dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    EXEMPTION FROM JURY SERVICE.
    Circuit Court of Hamilton County.
    In re James J. Heekin; Habeas Corpus.
    Decided, September 23, 1911.

      Constitutional Law — Validity of Statute Exempting from Jury Service Contributing Members of the State Militia.

    It is within the province of the Legislature to exempt from jury service such classes of persons as it deems best, and Section 5211 exempting contributing members of the Ohio Militia from such service is a valid enactment.

      Walter W. Schwaab, for the petitioner.

      Stanley W. Merrell, for the state.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   In the above case the court is of the opinion that the judgment of the Court, of Insolvency of Hamilton County, discharging the relator, James J. Heekin, from the custody of the sheriff of county for alleged contempt of court is correct.

It appears that said Heekin is a contributing member of the Ohio National Guard and when summoned as a juror in the common pleas court he declined to serve as such by • virtue of the provisions of Sections 3039 and 3055, Revised Statutes (General Code Nos. 5210 and 5211).

It seems to us that it is within the province of the Legislature to exempt from service upon juries such classes of persons as it may deem best, and indeed this seems to be the great weight of authority.

Under Section 11444 of the General Code, public officers, clergymen, priests, physicians, attorneys at law, members of the police force, firemen employed by a municipal authority, acting volunteer members of companies to extinguish fires^ organized in and under the control of a municipality, and all persons serving as active members thereof for five consecutive years and every person over 70 years old are exempt from jury service.

We have never had it seriously contended that individuals in any of the above classes could be compelled to serve as jurors, if they desired to avail themselves of their exemption, and we see no good reason why the Legislature could not make an additional class exempt so long as the right of trial by jury is maintained. Hall v. Burlingame, 88 Mich., 438; Rawlins v. State, 201 U. S., 638.

As there is no error in the record the judgment of the court below is affirmed.


text:
    AS TO WHETHER. AN INTENDED GIFT WAS MADE COMPLETE.
    Circuit Court of Mahoning County.
    Gertrude McKelvey’s Administrator v. Wm. H. McKelvey.
    Decided, October Term, 1911.

      Gifts — Evident Intention of a Decedent to Make a Gift hut Lacking Delivery — Conversations with Attorney — Declarations Not Sufficient to Create a Trust — Failure to Pass Title — Sections 10851 and II494.

    Where one intending to make a gift to' another purchased United States money orders in the name of the prospective donee, but died before delivering them and with the orders in her possession, the gift .was incomplete and the administrator is entitled to the money.

      Wirt & Gunetfinger, for plaintiff:

      M. G. McNabb, contra.
    Metcalfe, J.; Norris, J., and Pollock, J., concur. •
   This action was brought by the administrator of the estate of Gertrude McKelvey, under favor of Section 10857, General Code, to obtain the judgment of the court as to certain matters about which controversy had arisen in the settlement of the estate.

The plaintiff’s decedent, Gertrude McKelvey, was an actress. While in the city of Manila, in the Philippine Islands, she sustained a loss by fire on some property which she owned, and upon which she held a policy of insurance. The amount due on the policy of insurance was collected for Miss McKelvey by O’Brien & Peoples, a firm of attorneys in Manila, and Mr. O’Brien was directed by her to purchase therewith a number of United States money orders payable to her sister, Mrs. Plupfer. Soon after the purchase of the money orders Miss McKelvey went to Hong Kong, China, and while in that city she was murdered, and upon the person of the man arrested for her murder was found the money orders. It is now claimed that Miss McKelvey made a valid gift of the money orders to Mrs. Hupfer, or that by her, actions and declarations with reference to them she created a trust which the court should enforce in Mrs. Hupfer’s favor.

The only testimony we have as to how the orders came to be in the name of Mrs. Hupfer is that of the attorneys in Manila, O’Brien & Peoples. In their depositions are related conversations between Mr. O’Brien and Miss McKelvey with reference to what she wanted done with the money, and his advice to her. These conversations we think are clearly incompetent under Section 11494, General Code, which prohibits an attorney from testifying to a communication made to him by his client in that relation, and his advice to. the client. Some facts are related, however, which we think are competent. Mr. 0 ’Brien says that he took the money which was collected on the insurance policy, and that he went to the post office, purchased the money orders in question, took them to his office and delivered them to Miss Mc-Kelvey.

The purchase of the order in the name of Mrs. Hupfer was no doubt done under the direction of Miss McKelvey and we think that it evinced an intention on her part to give the money to, her sister. But the question is did she carry out that intention so as to make it effective and pass the title to the property? ¡Several things must concur to make a valid gift. First, there / must be an intention on the part of the giver to part with his 1 property. Such intention, we are inclined to think, appears. But there must be something more than an intntion. The inten- , tion to give, to be made effective, must be carried out by the donor ^relinquishing dominion over the property and delivering it to ¡ the donee either actually or constructively. Whatever Miss Mc-Kelvey may have intended to do, there is no evidence tending to show a delivery of the property to her sister, and she certainly did not relinquish her dominion and control over it. Taking out the orders in the name of Mrs. Hupfer did not prevent her from -returning them to the post office and having them canceled and receiving back the money which she had paid for them. She could have done this any time she wished (Revised Statutes, U. S., Sections 4035-4039). The fact that the orders did not come to Mrs. Hupfer, and that Miss McKelvey retained possession of them make the transaction lack all the essential elements of a gift, save the intention alone.

It is urged, however,'that the facts in this case constitute a trust in the money represented by the several orders in favor of Mrs. Hupfer, but we think the transaction will not bear that construction. The eases cited do not, in our judgment, support it. In Martin v. Funk, 75 N. Y., 134, money was deposited in a savings bank, the depositor declaring at the time that it was in trust for the plaintiff and the account was so entered, and a pass book made out, which the donor held in her possession until her death. The court held that a trust was created. Here there was an express declaration of a trust and so it is with the other cases cited. Either there was an express declaration of a trust, or there were facts present which showed an intention to create one. Such intention, however, we do not think appears here.

The.unfortunate circumstances of this case prevent us from carrying out what we think was the probable intention of Miss MeKelvey, and prevent us from finding in Mrs. Hupfer’s favor, but we can not disregard the law as we see it and therefore the judgment is for the plaintiff. ■


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    REDEMPTION OF PROPERTY SOLD FOR TAXES.
    Circuit Court of Hamilton County.
    Hiram Friedman et al v. Maria F. Van Antwerp et al.
    Decided, August 1, 1911.

      Taxation — Enforcement of Lien for Unpaid Taxes — Redemption—Sections 2667, 2669 and 2670.

    The owner of real estate, ordered sold in satisfaction of a lien for unpaid taxes or assessments, m'ay redeem the property at any time before confirmation by payment of such taxes or assessments with penalties.

      E. E. Friedmcm, for plaintiffs in error.

      Thomas B. Paxton, contra.

      Smith, P. J.; Swing, J., and Jones, J., concur.
   Under Sections 2667, 2669, 2670 and 2671 of the General Code relating to actions by -treasurers of counties for recovery of unpaid taxes or assessments, the court is of the opinion that the owner or owners of the real estate ordered sold to enforce the lien of such taxes or assessments may redeem the same at any time before the confirmation of the sale thereof.

The record in the above case discloses that before confirmation of the sale to plaintiffs in error of the real estate described in the petition, the court allowed the owners to redeem the same upon the payment of all liens for taxes, assessments, penalties, etc., due.

We find no error in the court overruling the motion of the' purchasers to confirm the sale to them, and the judgment therefore will be affirmed.


author: By the Court.

text:
    PROSECUTION FOR. SALE OF LIQUOR IN “ DRY ” TERRITORY.
    Circuit Court of Tuscarawas County.
    Gershom K. Wheeland v. State of Ohio.
    Decided, December 9, 1910.

      Intoxicating Liquors — Sale of, to Detectives in Dry Territory — Serving Liquor to Two Persons at the Same Time Not a Single Offense.

    Where two persons enter a place within the limits of “dry” territory, and one of them calls for the drinks, and intoxicating liquor is served to both and is paid for, the offense is complete and prose'cution will lie therefor.
   By the Court.

In these cases motions are filed by leave to file petitions in error.

The charge was made in the court below that at the times mentioned in the affidavit one Gershom K. Wheeland did unlawfully sell intoxicating liquors contrary to the statute in such case made and provided. The affidavits were filed before the judge of the court of common pleas and by Mm heard, and upon the hearing a judgment of conviction and sentence was entered. Exceptions were taken to the action of the court and now leave is asked to file petitions in error in this court. We are of the opinion that there is good cause shown and leave is hereby given in each ease to file a petition in error.

The cases were submitted then upon the record, the arguments of counsel and briefs filed in the ease. The only error alleged is, that the records show that the alleged sales were made to two persons who were seeking evidence of violations of the law for the purpose of having the alleged violators of. the law placed upon the tax duplicate by the dairy and food commissioner of the state of Ohio. Each of the records discloses that these two so-called detectives entered the place kept by the plaintiff in error, whereupon one asked for the drinks for the two, which was supplied and paid for by the one. That after án intermission of some ten or fifteen minutes the other detective asked for the drinks for the two, wMch was .supplied and paid for by the second person. Each of these transactions are now made the basis and foundation of a charge for violation of the law.

It is the contention of the counsel for plaintiff in error that as these detectives were engaged in securing evidence for the purposes of a conviction of the plaintiff in error and charging him with the tax incident to a dealer in ihtoxicating liquors, these two sales, if we may so term them, constituted but one single transaction and but a single violation of the law. And in support of tMs contention the counsel called to our attention an opinion delivered by one of the judges of the third circuit of the state and concurred in by one of his associates. It is also claimed that this holding and judgment was subsequently affirmed by the Supreme Court. But an examination of that ease will show that the question now sought to be made was not involved in the ease that went to the Supreme Court, nor was the same-necessarily involved therein; that this question was only involved in certain of the eases that were decided at the same time that the case of State v. Hinkleman, 13 C.C.(N.S.), 321, was decided, and therefore we do not think that this case has the support or approval of the Supreme Court of the state.

We are of the opinion that when these two men entered the place of the plaintiff in error and one called for the drinks of liquor and it was supplied to the two and the price thereof was paid, that if the sale so made was a sale of intoxicating liquors and the place was within the limits or territory wherein the sale of intoxicating liquors was prohibited, it constituted an offense against the laws of the state and the offense was complete; that being simultaneous in time would not unite the transaction so as to make it but a single offense.' To illustrate, suppose each of these detectives had entered the place and each had simultaneously proposed to buy intoxicating liquors and each was simultaneously supplied and each simultaneously paid, we do not think it can reasonably be contended that this constituted but one transaction, but that it would be two distinct sales, furnishing or giving away under the statute,

That there may be an adjudication of these causes is an additional reason why we think we are right in allowing these petitions in error to be filed. If the- holding of the third circuit is correct and our holding is contrary, this question ought to be determined by the Supreme Court of the state. But as we view these records we find no error in the records to the prejudice of the plaintiff in error, and the judgments of the court of common pleas are affirmed with costs and remanded for execution, with exceptions.


text:
    CONSTRUCTION OF AGREEMENT AS TO ATTORNEY’S FEES.
    Circuit Court of Hamilton County.
    Louis J. Dolle, as Trustee for Anna Roberts et al, v. Thomas R. Roberts et al.
    Decided, November 25, 1911.

      Attorney and Client — Agreement as to Fees for Recovering Alimony— Attorney to be Given a Percentage of the Amount Recovered— Husband Subsequently Creates a Trust for Benefit of Wife and Children —Agreement of Attorney with Wife Hot Fnforcible and He is Al- . lowed a Quantum Meruit.

    Tbe word “fees” in a trust instrument will not be regarded as referring in any way to an agreement as to fees, entered into between tbe cestui que trust and ber attorney prior' to tbe creation, of tbe trust and without tbe knowledge of tbe grantor, but in sucb a case tbe attorney for tbe cestui que trust will be allowed to recover as fees out of tbe trust funds only tbe fair value of tbe services rendered.

      Dolle, Taylor O’Donnell, for plaintiff.

      C. D..Robertson and E. G. Pyle, contra.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   On June 29th, 1909, the defendant, Thomas R. Roberts, conveyed to plaintiff, as trustee, property valued at about forty thousand dollars to be held in trust for the wife and children, of said Thomas R. Roberts, the wife, Anna R. Roberts, to have the net income from same during her life, or until her re-marriage, in' which latter event the income will go to a minor son, Thomas W.-, until he becomes of age. Upon her death, or (in case of her re-marriage) upon the son’s becoming of age, said, property will go, absolutely, to the four children.

This arrangement and settlement was reached after the filing' of an action for alimony in the Insolvency Court of Hamilton County by Mrs. Roberts on or about May 31, 1909, in which cause Mr. Dolle represented the plaintiff as attorney.

At the time said action was brought, Mrs. Roberts agreed in writing to pay Mr, Dolle twenty per cent, of such sum as might be ordered paid to her as alimony in said cause, the parties to said agreement evidently contemplating that whatever sum should be received by her would be in gross or as commonly called a “lump sum.” This, Dolle, as her attorney, insisted upon in the early negotiation for a settlement and Mr. Roberts, by his attorney, Mr. Pyle, was equally or more insistent that a trust fund should be set aside for her and the minor son, they to use and enjoy the income therefrom.

This latter plan was ultimately agreed upon and thereupon at the instance of Mr. Dolle a new agreement was entered into as to attorney fees, which provided that the former agreement should be canceled and that Dolle should receive for his services fifteen per cent. ! ‘ of the market value of any and all real estate, money, securities or other personal property which he may succeed in having conveyed or transferred by the said Thomas R. Roberts, in trust for the benefit of said Anna Roberts or Thomas R. Roberts, or either or both of them during their life or lives, and thereafter the principal sum to be paid or delivered to their children, the said commission to be paid out of the principal fund so conveyed or transferred immediately upon the delivery thereof to the said trustee or trustees; and the said trustee or trustees of said fund, or either of them, is hereby authorized to pay to the said Louis J. Dolle upon demand a sum equal to fifteen per cent, of the total value of all property which the said Thomas R. Roberts may hereafter convey to him or them or either of them in trust as aforesaid.”

This agreement bears date of June 16, 1909, and is signed by Louis J. Dolle, Anna Roberts, Stella Roberts, Mae Browning, Florence Roberts and by Thomas W. Roberts, a minor, by Anna Roberts, his natural guardian.

The instrument of June 29th, creating the trust and setting forth its terms and conditions and signed by the husband Thomas R. Roberts, contains in Article 7, the following direction to the trustee:

‘ ‘ The said trustee shall * * * pay and discharge the court costs and the fees due Louis J. Dolle for services rendered and expenses incurred by him in the action of the said Anna Roberts against 'Thomas R. Roberts 'for alimony * * and for this purpose he is authorized to séll a sufficient amount of said securities and other personal property to pay. the same. ”

It is for a construction of the above paragraph that this petition is filed by the trustee he claiming out of the trust fund fifteen per cent, of the market value of all property held by him' as trustee, being as he contends, the “fees due” him under his contract of June 16th with Mrs. Roberts and the children and amounting to $5,964.15.

Objection to this charge is made by Mr. Roberts and other beneficiaries of the trust, it being urged that Dolle is only entitled to charge the reasonable value of his services without reference to. any agreement he may have had with his clients.

It is conceded that at the time he signed the trust instrument .Thos. R. Roberts had no knowledge of the contract for fees existing between Mrs. Roberts and her attorney by which the latter was to receive a contingent fee of fifteen per cent.

Such being the case, we- do not see how the trustee can recognize said contract, as he only has such powers as are conferred upon him expressly by the trust instrument and such a& are necessarily implied. The creator of the trust having had no information as to any special contract'for fees, it is not reasonable to suppose that he contemplated such an agreement when providing for the payment of fees. On the contrary, the presumption is that he had in mind only such fees as would fairly compensate the attorney for services rendered, fixed under the conditions then surrounding the parties 'at a time when he was making provisión to safely secure and pay same, rather than a fee fixed at an earlier date-when its ultimate receipt depended and was contingent upon the success of a proceeding in court, and the recovery and satisfaction of judgment.

We are of the opinion, therefore, that the word “fees” in Article 1 of the trust instrument relates in no way to the contract of June 16th; that under the terms of Article 7, Mr. Dolle is entitled to be paid out of the trust fund the value of his services: that all the services on the part of Dolle and his associate counsel, including the negotiations for and preparation of the trust instrument;- 'were’ rendered .in the alimony proceeding and in effecting a settlement thereof.

All parties to this cause have united in a request that the court proceed to fix the fees due Mr. Dolle in the event of the above 'finding. After careful consideration of the question we are of the opinion that there should be paid to him the sum of twenty-five hundred ($2,500) dollars for legal services, provided that upon, payment to- him of said amount he relinquish all claims for attorney fees against Mr. and Mrs. Roberts and their children.

.The trustee, in his account, a copy of which is attached'to the petition herein, credits himself with $828.24 paid out of for the benefit of .Mrs. Roberts and children prior to June 29th, 1909, or paid upon obligations incurred prior to that date. It is claimed that the items making up this amount are properly chargeable to the trust fund under “expenses” as provided in Article- 7 of the agreement above quoted.

The following items should be elminated from said account as not being embraced within said provision: 1909, June 2, $185.85; June 10, $8; June 14, $2.25; June 15, $14.95; June 15, $1.65; June 30 $1.50; June 30, $1.90; total $216.10.

No question is raised but that all the items were paid by Dolle and the payments appear to have been made in good faith. Hence, we have resolved doubt as to several in his favor and allow the remainder of the account, to-wit, $612.33.

.These amounts have been fixed with the idea and upon the theory that they should be accepted in full satisfaction of the respective claims upon which they are based.

We find no evidence in the entire transaction of any fraud on the part of Mr; Dolle, as attorney, or in his capacity as trustee.


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    OFFER. TO PURCHASE.
    Circuit Court of Ashland County.
    The Durant-Dort Carriage Co. v. S. L. Karth & Bro.
    Decided, October 21, 1910.

      Sales — Offer to Purchase Distinguished from Contract to Purchase— Action on Alleged Breach of Contract of Purchase — Objection Sustained to Introduction of - any Evidence..

    An offer to purchase goods in accordance with a proposition theretofore submitted, does not constitute an enforcible contract of purchase, until the offer has been, submitted to the seller and approved by him.

      J. W. Myhrantz, for plaintiff in error.

      Chapman & Taggart, contra.
    Taggart, J.; Donnelly, J., and Voorhees, J., concur.
   The question in this proceeding in error is as to the action of the trial court in sustaining an objection to the introduction of any testimony, after a jury was impanneled to try the cause, which objection was sustained by the court, and a verdict directed, and the petition dismissed.-

If the amended petition, upon which this case was put to trial, contains facts constituting a cause of action, then the action of the court was erroneous and prejudicial. If, however, the amended petition does not state facts constituting a cause of •action, then the action of the court in sustaining the objection to the introduction of any testimony was proper.

The action in the court below was based upon an alleged written contract, and the amended petition refers to a copy which is attached thereto and made a .part thereof, marked Exhibit “A,” and then refers to the terms of the alleged contract, and from the terms so referred to the right is claimed to recover for the damages stipulated therein.

The -court has the right, in construing the petition, to look to the exhibit that is made a part thereof, not to help out the petition to make a good cause of action, -but may look to it for the purpose of determining whether the averments of the petition. are supported by the exhibit and if there is a variance between the terms of-the exhibit and the allegations of the petition, the exhibit must control and the court may declare the petition insufficient.

The examination of the exhibit attached to the amended petition does not sustain the averment that the cause of action is founded upon a written contract. The exhibit, by its terms, is simply an order or an offer to purchase, certain goods of the plaintiff, according to the terms of the order or offer, so made by the defendants. One of the terms and conditions of this order or offer to purchase is as follows, “Subject to approval of the Durant-Dort Carriage Co.”

Now, it is averred in the .amended petition that the plaintiff accepted said order and approved the same, and fully performed its entire part of said contract. But' the exhibit itself contains no approval, nor evidence of approval by the plaintiff, neither is it averred that such an approval was ever communicated to the defendants, and the averment that it fully performed its entire part of said contract, we think, is clearly referable to the fact that it constructed the buggies named therein.

But, it is -a clear rule of law, sustained by abundant authorities, that an order or offer to purchase goods, under a written or printed order, similar to the exhibit attached to the amended petition, is a mere offer, and before notice of acceptance may be revoked by the party making the offer or signing the order. This amended petition avers that the defendants refused to accept the goods or refused to give any orders for shipment. It'is not shown that they had in any wise accepted, or- had any knowledge of the approval of1 said order by the plaintiffs, and such refusal was the equivalent of revocation of the order so made by them.

We think there was no error in the action of the court in sustaining the objection to the introduction of any testimony, as in our judgment this amended petition did not state a cause of action.

The judgment of the court of common pleas is affirmed with costs, and remanded for execution. Exceptions will be noted.


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    LIABILITY FOR. COLLAPSE OF A BRIDGE.
    Circuit Court of Hamilton County.
    City of Cincinnati v. Edward Armstrong.

    Decided, July 29, 1911.

      Bridges — Collapse of Wooden Structure from Decay — Constructive Notice to Municipality of Its Unsafe Condition.

    1. In an action for damages on account of injuries to a team and driver from tlie collapse of an old wooden bridge, a verdict against the municipality must be sustained, where it appears from the testimony that the bridge had been in use-for a great number of ye.ars and the timbers supporting .it were rotten, and there was no contributory negligence on the part of the driver.
    2. Where it appears that the board of public service had been notified of the unsafe condition of the bridges in that particular locality six weeks before the accident, constructive notice of the condition of this particular bridge, which would have been revealed by a reasonably careful inspection, is sufficiently shown.

      Constant Southworth, for plaintiff in error.

      Harry J. Wernke, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.

       Affirming Armstrong v. Cincinnati, 8 O. L. R., 224.

   We do not think the evidence in the above case discloses any contributory negligence on the part of the defendant in error, but on the contrary the evidence is such as that but one conclusion can be drawn, which is, that the bridge in question was out of repair. The evidence upon this point being that “the timbers supporting it were rotten; that there was no live current in the wood and that it had been built and in use for a long time prior to its taking over by the city from the county.”

The jury unequivocally answered three special interrogatories entirely consistent with the general verdict to the effect that the defect in question was of such a character that it could have been discovered by a reasonably careful inspection; that such an i-nspp.ct.inn was not made before the accident, and that the city had notice of the unsafe condition of the bridge about six weeks before.

Upon the latter question of notice-the court is-o'f the opinion that there is sufficient evidence to justify-the finding of the jury upon this point. The attention of the board of public service was called to the unsafe condition of the bridges in that locality, and a written communication was sent to it specifying streets that needed repair, and we think that under all the evidence the constructive notice of. the unsafe condition of this particular bridge was sufficiently proven. ' .

" We see no érror in giving to the jury the special charge "on behalf of defendant in error, No. 5, as the same is fully sustained by the case of Commissioners v. Coffman, Admx., 60 O. S., 538.

The general charge correctly stated the law of the case, and finding no errors in the record, the -judgment will be affirmed.


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    LIABILITY FOR COST OF RAILWAY BRIDGES OVER ARTIFICIAL WATER. COURSES.
    Circuit Court of Wayne County.
    The Ashland & Western Railway Company v. The Board of Commissioners of Wayne County, Ohio, et al.
    Decided, October 18, 1911.

      Ditches — Construction of, Underneath Railway TracJcs^-Gompany Gan Not he Required to Meet the Expense of, When — Invalidity of -Assessments Imposed on Property for the Sole'Benefit of Others Than the Owner — Section 6518.'
    A railway company can not be made liable for the expense' of constructing a bridge or culvert over an artificial water-course, established after the company acquired its right-of-way at its own expense, and constructed a railroad thereon..

      Semple & Sherrich and Eugene Carlin, for plaintiff in error.

      L.R. Critehfield, Jr., and S. B. Eason, contra. " '
    Powell, J.; Shields, J., and Voorhees, J., concur.
   This action comes into this court on a petition in error, filed by the Ashland & Western. Railway Company, against the commissioners of Wayne county, Ohio, and Harry ¿."Henderson, alleging error in the orders of said commissioners establishing a county ditch upon the lands of the defendant, Harry L. Henderson, and in which order the commissioners required the plaintiff in error to construct a bridge over said ditch at its own expense.

The original action was commenced by Harry L. Anderson filing his petition for said ditch with the county commissioners of this county, and after the same was allowed an appeal was taken by the plaintiff in error to the probate court of this county, upon all the grounds upon which such appeal may be taken, and we are asked by the petition in error to review the action and judgment of the probate court upon such appeal.

We have examined this record upon all the assignments of error set forth in the petition in error, and find that there is error in the charge of the court for which the judgment below should be reversed. There may be other errors, in the record, but they are not of sufficient importance to justify a reversal of the judgment, but we find that the probate court in construing Section 4495 of the Revised Statutes, or 6518 of the General Code, instructed the jury—

“If you find that the location and construction of the bridge on the railway at the crossing of the proposed ditch, Nó. 187, is necessary to. the public health, convenience or welfare, it is the duty of the Ashland & Western Railway Company to locate and construct said-bridge at its own expense, and it can not recover damages for the expense.”

This-court is of the opinion that the section above quoted ought not to be so construed, because such construction would make the plaintiff in error liable at its own expense to construct a bridge or culvert over an artificial water course, that was established after it had acquired its property and constructed a railroad thereon at its own expense and such construction would render the statute unconstitutional. The 79 O. S., page 348, supports this view.

The syllabus of this case is:

“1. The provisions of the Constitution forbid not only the taking 'of the private property of one, but as well the laying of an imposition upon it, for the sole benefit of another.
“2. .Tl^e.Act.of April 18, 1904 (97 O. L., 138), may not be so construed and administered. as to charge an owner of lands which are, and are to remain unenclosed, with any part of the expense of constructing and maintaining a line fence for the sole benefit of the adjoining proprietor.”

It is not contended here by any one that the establishment and construction of this bridge is for the benefit of the plaintiff in error, but it is admitted that, it will be solely for the benefit of others than itself, and if such construction would be allowed to prevail, the plaintiff in error would be suffering the imposition of an assessment for the benefit of other parties, and which,, in effect, would be the taking of its property for the benefit of others without compensation.

This instruction, to the jury naturally would influence their decision upon the question of compensation and damages, and we think that there is such prejudicial error in such instruction that the judgment of the probate court should have been reversed. Fof these reasons, the judgment of the court of common pleas, affirming the judgment of the probate court, and the judgment of the probate court, will be reversed, and the cause remanded to the probate court for further proceedings according to law.


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    SALE OF CORPORATE STOCK BY AN ADMINISTRATOR..
    Circuit Court of Hamilton County.
    Wallace Burch v. The Cincinnati Trust Company and The Cincinnati Gas & Electric Company.

    Decided, November 11, 1911.

      Estate of Decedents — Private Sale of Stock Certificates — Failure to Conform in All Respects with the Statute — Section 10704.
    Omission by tbe probate court to fix the lowest price at which corporate stock belonging to the. estate of a decedent may be sold at private sale, does not invalidate a sale made in all other respects in conformity with the statute, without collusion or fraud and at the market price.

      Robert B. Burch, for plaintiff in error.

      Louis A. Ireton, contra.

      Jones, J.; Smith, P. J., and Swing, J., concur.

       Affirming Burch v. Cincinnati Trust Co., 12 N.P.(N.S.), —.

   The order of the probate- court, in that it does not fix a sum below which the shares of stock could not be sold at private sale, is defective and not in compliance with Section .10704, General Code.

Such défect however, does not impair the title to the stock in the plaintiff where it appears that the proceedings in all other respects conformed to the statutes and that the sale was made in good faith, at the market value, and in the absence of -.fraud or collusion.

The petition states a cause of action and the demurrer must be overruled. Sutherland v. Brush, 11 Am. Dec., 282 (notes); Edney v. Baum, 97 N. W. Rep., 252 255; Rockel’s Probate Practice, Vol. 1, p. 420; Jelke v. Goldsmith, Administrator, 52 O. S., 499.


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    ACTIONS FOR SERVICES.
    Circuit Court of Hamilton County.
    George F. Williams v. W. T. Crockett.

    Decided, July 9, 1910.

      Services — Averment of Wrongful Termination of — Denial of Special Contract — Action on-Implied Quantum Meruit.

      Burch & Johnson, for plaintiff in error.

      Chas. A. J. Walker, contra.
    Gi-eebn, P. J.; Smith, J., and Swing, J., concur.

       Affirmed by the Supreme Court without opinion, Williams v. Crockett, 84 Ohio St., p. — .

   The plaintiff in error not only denied the existence of any special contract with the defendant in error, but made such denial in writing before suit was commenced.

The defendant in error thereupon elected to sue as upon an implied quantum meruit for the value of the services rendered, and recovered a verdict. The judgment should be affirmed. Ralston v. Cole’s Administrator, 30 Ohio St., 92.


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    REVIVOR. OF A DORMANT JUDGMENT.
    Circuit Court of Wayne County.
    James Van Nover v. David Eshleman.
    Decided, October 14, 1911.

      Judgment — Conditional Order of Revivor — How Made — Effect of — Will Sustain an Execution — Is in the Mature of a Summary Process— Protection to the Debtor.

    When a conditional order of revivor of a dormant judgment is made, tbe judgment is -revived for all purposes for, wbicb a judgment may be revived and will sustain an order of execution issued thereon, subject to the condition that if the judgment debtor, within a time fixed in the order of revivor, can show cause' why said judgment ought not to have been revived, the order of revivor will be set aside.

      M. L. Spooner and John McSweeny, for plaintiff in error.

      A. D. Metz, contra.
    Powell, J.; Yoorhees, J., concurs; Shields, J., dissents.
   This is an action by the plaintiff in error to reverse the judgment -of the court of common pleas setting aside an execution issued out of that court on the 27th day of January, 1908, in favor of plaintiff in error-and against the defendant in error.

The record discloses that the plaintiff in error is the owner of a judgment which stands upon the records of this county in his favor against the defendant in error, David Eshleman; that prior to the 25th day of January, 1908, the said judgment had become dormant, and on that date the plaintiff in error filed his application for a conditional order of revivor of the said judgment, which order was that day allowed and entered on the journal; that notice thereof was served upon the defendant in error, and an execution was issued on said judgment on the 27th day of January, 1908, which execution was levied on certain real estate of the defendant in error situated in Cuyahoga county, Ohio.

The record also shows that an issue was made up on the application for revivor of the judgment, which was- tried and decided in favor of the plaintiff in error and’final order entered on-March 11, 1908. The defendant in error in June, 1910, filed a motion to set aside the execution which had been issued on said judgment ’ on the 27th day óf January, 1908, which was sustained.

It’ is the action of thé court in sustaining the said motion and' setting aside said execution that is before us for review. • A’majority of the'court aré of-the opinion that when a conditional order of revivor of a dormant judgment is made, such order revives the judgment for all purposes for which a judgment may be revived — subject, however, to the terms and conditions made á part of such order. That is, a conditional order of revivor is a revivor of the judgment subject-to the condition that if the judgment debtor, within ,a time to be fixed in said conditional order, can show cause why such judgment ought not to have been revived, the order of revivor will be set aside.

It is contended strongly that this execution was issued upon -a dormant judgment. A majority of the court think it was issued upon a judgment that had been revived by the conditional order, and was no longer dormant. It is also contended that the ease of Smith v. Hogg, 52 O. S., 527, settles the question in controversy here. We do -not think this case decides the question presented. It holds and decides that when a dormant judgment is revived, all the liens that were valid under said judgment before it became dormant are re-instated and again become valid liens by such revivor. It does not decide when a conditional order of revivor takes effect so that an execution may issue thereon. We think that a dormant judgment can only be revived by an order of the court in which proceedings "for revivor are pending, whether such order be conditional or absolute. A conditional order of revivor is a revivor of the judgment subject to be defeated by the judgment debtor showing that thé judgment has been paid, settled or barred by the statute of limitations, as these are practically the only defenses that can be made to the revivor of a dormant judgment.

We think that when this conditional order was entered on the 25th day of January, 1908, the judgment was no longer dormant, but revived, and as such revived judgment would sustain the execution issued thereon January 27, 1908.

This conclusion- is supported by the practice in other states, and by the former practice in Ohio, where judgments were revived upon a writ of scire facias, and which practice still prevails in many of the other states. It is the practice in Indiana that when a judgment becomes dormant, a motion may be filed for leave to issue execution thereon, and the action of the court sustaining such motion has the same effect that the order of revivor does in Ohio.

We think that revivor by conditional order is a summary proceeding, and intended by the Legislature so to be, in order to reach the property of the judgment debtor, that otherwise might be encumbered or conveyed before an absolute order of revivor could be obtained upon a petition for .that purpose.

We further think that the'second order entered upon an application for a conditional order of revivor has no other legal effect than to be cut off, or foreclose, the right of the judgment debtor to set up a defense to the revivor of the judgment in that proceeding. The statute is, that unless the judgment debtor shows sufficient cause to the contrary the judgment shall “stand revived,” or as we construe it, continue revived, having already been revived by the conditional order entered on the filing of the application.

We do not see any inherent difficulty in this construction of the statute, such as that the property of the judgment debtor might be seized upon execution and held before a final determination of any question he might make as to the validity of such judgment could be had. The statute requires notice to be given such debtor, and allows hinl to make any claim or defense he may have against the order of revivor of such judgment, and if his property has been wrongfully seized the court can in the same proceeding issue a restraining order to prevent a sale of the same until a final hearing can be had.

With this view of the question involved, a majority of the court think that the judgment of the court of common pleas should be reversed at the costs of the defendant in error.


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    EFFECT OF FAILURE TO ARRAIGN AN ACCUSED PERSON.
    Circuit Court of Hamilton County,
    Anna Emmons v. State of Ohio.
    Decided, June 24, 1911.

      Criminal Law — Error in Placing an Accused Person on Triad Without His Having Been Arraigned — Section 18581.

    The provision of Section 13581, as to defects in an indictment which shall not be regarded as fatal, does not apply to the case of one who has been convicted of an infamous crime without having been arraigned on the indictment or having entered a plea thereto, and such an omission constitutes reversible error.

      A. Lee Beaty, for plaintiff in error.

      Arthur G. Friche, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   The plaintiff in error was indicted, tried and convicted in the court of common pleas of this county of murder in the second degree.

The error principally relied upon by counsel for plaintiff in error is, that the record of the conviction does not show that the defendant was arraigned on the indictment, that is, there was no plea of “not guilty” to the crime charged.

Section 13629, General Code, provides that the accused shall be arraigned by the clerk of the court or his deputy reading the indictment to him, unless the accused or his attorney waive .the reading thereof, and he shall then be asked by the court whether he is guilty or not guilty of the offense charged; and Section 13634 provides that if the accused plead not guilty such plea shall be entered on the indictment.

In the case of Hanson v. State, 43 O. S., 376, our Supreme Court holds that “the record of a conviction for crime must show that the defendant was arraigned on the indictment”; and in the case of Crain v. U. S., 162 U. S., 625, the Supreme Court of the United States, says that where the record does not show that the accused was ever arraigned, or that he pleaded to the indictment, the conviction must be set aside, as it is better that a prisoner should escape altogether than that a judgment of conviction of an infamous crime should be sustained where the record does not clearly show that there was a valid trial; in this same case the Supreme. Court says, that in its opinion it is the prevailing rule in this country in eases of felony that a plea to the indictment is necessary before the trial can be properly commenced, and unless this fact appears from the records the judgment can not be sustained. Until the accused pleads to the indictment and thereby indicates the issue submitted by him for trial, there is nothing for the jury to try; and the fact that the defendant did so plead should not be left to be inferred from a general r'ecital in some order that the jury were sworn to try the issue joined. The court further says that the rule requiring the record of a trial for an infamous crime to show affirmatively that it was demanded of the accused to plead to the'indictment, or that he did so plead, is not a matter of form only, but of substance in the administration of the criminal law, and that due process of law requires that the accused plead, or be ordered to plead, or, in a proper case, that a plea of not guilty be filed for him, before his trial can rightfully proceed.

We do not think that Section 13581, General' Code, relating to defects iii an indictment that are not fatal, can apply in the case at bar, as the right to plead to the indictment is a substantial one which can not be taken away from the accused.

Finding no other errors in the record, the judgment of the court below will be reversed on the above grounds and a new trial granted.

Judgment reversed.


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    ARRESTS FOR VIOLATION OF FISH AND GAME LAWS.
    Circuit Court of Franklin County.
    George M. Williams et al v. V. G. Morris.
    Decided, January 17, 1911.

      Fish and Game Laws — Deputy Sheriff May Arrest on View Persons ' Found Violating — Whether Officer’s Action was Reasonable is a Question for the Jury in an Action for Damages for False Arrest-Officer Not Liable for an Arrest Made Under a< Warrant Declared Defective on Proceedings in Error — Arrest Under Unconstitutional Statute — Counsel Fees in a False Imprisonment Case Allowable, When — Section 12525.
    1. A deputy sheriff or other person authorized by law to make arrests may, on view, arrest persons found violating Section 12525 of the fish and game act and not be liable for false arrest, notwithstanding the provision that prosecutions may be instituted only upon complaint of the owner or agent of the owner of the lands, or rights in lands or waters, where the trespass was committed.
    2. Where an arrest is made without a warrant, the arresting officer should within a reasonable time secure a warrant, and during the interval should use only such means and methods for detaining the party under arrest as are reasonable and necessary under the circumstances; and in an action for damages for false arrest and imprisonment, the -question whether the arresting officer so acted is one of fact for determination by the jury.
    3. In the event the party under arrest is hound over to the grand jury under a warrant which upon proceedings in error was declared to be defective, the arresting officer is not liable for false imprisonment, unless he detained his prisoner an unreasonable length of time and in an improper manner.
    4. Inasmuch as the Legislature is presumed to have passed only constitutional laws, an- arresting officer is not liable for false arrest or imprisonment where he acted, properly and within prescribed limits, under an act which was subsequently declared unconstitutional.
    5. Counsel fees can not be allowed to a plaintiff in an action for damages for false arrest and imprisonment, unless the evidence is such as would justify an allowance of exemplary or punitive damages.
    6. Where the arrest was not illegal and there was no false imprisonment, it is error to instruct a jury that they may allow as compensatory damages an attorney’s fee for services incurred in setting aside the proceedings of a justice of the peace had on a defective warrant.

      G. M. Carpenter, for plaintiff in error.

      J. C. Nicholson, contra.
    Rocker, J.; Jones, J., and Adlread, J., concur.
    Error to common pleas court.
   The action in this case, according to the plaintiff’s petition, is one of false arrest and imprisonment. The petition alleged, among other things, that the defendants maliciously assaulted plaintiff, shot at him, threatened to kill him and by force unlawfully compelled him to go with them and imprisoned him in a corn crib and there detained him against his will, depriving him ,of his liberty from about 8:30 o’clock p. m. on June 12, 1908, until about 5 a. m., June 13, and refusing him food and water during said time, and that on June 13 said defendants maliciously, unlawfully, and with force compelled the plaintiff to go with them to a magistrate and there to answer to a pretended charge of trespassing, all without warrant and without authority of law.

That the plaintiff was afterward, according to ah order of the court of common pleas, dismissed, or at least discharged from the action, and that the plaintiff was compelled to expend the sum of $25 in counsel fees in attaining his release and discharge.

The defendants for answer admit in substance that the defendants did detain plaintiff a certain length of time, but that the plaintiff was then trespassing upon defendants’ land and that the alleged arrest was made by a duly authorized deputy sheriff and that the arrest was made on view and that the plaintiff was taken, as early as convenient on the following morning, to a justice of the peace, where an affidavit was filed and a warrant was duly issued by the justice, and the plaintiff pleaded guilty, and the justice imposed a fine, and that it was this action of the justice of the peace in imposing such fine that was set aside by proceedings in error, and denies the other allegations.

The case was tried to a. jury and a verdict of $25 given for-plaintiff. Motion was made for a new trial by both the plaintiff and defendants below, which motions were overruled and each of the parties excepted thereto. The charge of the court was excepted to by both of the parties and error is principally predicated upon the law as laid down by the court.

The defendant in error, while not specifically pointing out in his brief the matters objected to, takes the position for his ground for setting aside the judgment below that the court below took the view throughout the trial and in its charge to the jury that the arrest in the first place was legal, and left the jury for determination from, the evidence the questions as to whether or not the accused had been detained an unreasonable length of time before being taken to the magistrate, and whether or not he had been detained in an improper place, and whether’ or not he had suffered at the hands of his captors improper treatment’ and indignities.

And defendant in error admits that if the view taken by the court below was correct that there was no prejudicial error. The facts show that Mr. Williams, one of the plaintiffs in error, was . the owner of a tract, I believe about 130 acres, of land several miles from Columbus; that the other plaintiff in error, Mr. Rutter, was a duly appointed and acting deputy sheriff. On Mr. Williams’ farm there was an artificial lake less than ten miles in length, into which had been introduced some fish, 'and it was such a lake that a person trespassing thereon for the purpose of fishing would be guilty of an offense under the statutes of Ohio. (99 O. L., 380, Sec. 76.)

The defendant in error, with two others, came out to this lake about 8:30 o’clock for the purpose of fishing, and between that hour and 10:30 ocloek they were caught in the act of fishing by Mr. Rutter and by him placed under arrest, and afterwards were taken up to the house of Mr. Williams, and there detained in a com crib until the next morning, when they were taken before a justice of the peace, where Mr. Rutter made out an affidavit for the violation of this section, and the defendant in error and his two companions pleaded guilty and were fined $10 each, and given thirty days in which to pay the same, or give bond in the sum of $75.

Under Section 77, 99 O. L., 380 (General Code, 12526), it is provided;

“Prosecutions for a violation of the-provisions of such section shall be instituted, only upon complaint of the person or his agent upon whose land or rights in land or waters the trespass has been committed.”

In making out the affidavit for the warrant before the justice of the peace, the deputy sheriff did not state therein that he was the authorized agent of Mr. Williams, but merely signed his name to the affidavit. These proceedings before the justice of the peace were taken up to the court of common pleas and reversed, for the reason that the affidavit did not show an offense; that is, as this prosecution could only.be instituted by Mr. Williams or his authorized agent, and the affidavit did not show that fact, the proceedings before 'the justice of the peace were erroneous.

However, the warrant on its face was regular and the evidence shows that Mr. Rutter was in fact the authorized agent of Mr. Williams, when his affidavit was made, and that he was duly authorized to make a proper affidavit, and that he was also the duly authorized agent for Mr. Williams at the time that he made the arrest..

The defendant in error contends that because no valid complaint had been filed prior to the arrest, that all the proceedings were illegal.

The court, however, tried the ease and took the opposite view that Mr. Rutter as deputy sheriff duly authorized by Mr. Williams might on view lawfully make the arrest, even though no complaint had before been filed, or the complaint thereafter filed was not valid in law. To hold that a person found violating this law could not be detained or arrested, without first having the owner file an affidavit, would in many instances defeat its enforcement entirely. Such persons are not likely to kindly wait for these preliminaries, nor are they particular about disclosing their identity, and the return on the officer’s warrant would generally be “not found.”

We think that the court was right in this view, that it is not necessary under this statute to have a complaint made before an arrest can legally be made, especially when the arresting officer makes the arrest on view. If an officer should arrest on view and thereafter the owner of the land would refuse to institute proceedings, a different question would arise, but in this case the officer had authority from the owner at the time the arrest was made and had full authority to institute proceedings in this ease. So the fact that the court of common pleas afterwards set these proceedings of the justice aside would not, in our view, make the arrest illegal.

In fact, the court charged the jury in this ease that:

1' The fact that the plaintiff was subsequently released and discharged from custody by order of the court of common pleas of this county, cuts little or no figure in this case. ,

In this we think the court was right.

If the arrest in the beginning was legal, the only question which was really in the case was whether or not the plaintiff below was unlawfully detained or illegally imprisoned from the time that the arrest was actually made until the affidavit was filed before the justice of the peace, and this question was submitted to the jury. Even if the length of time of the detention was not sufficient to make it unlawful, yet whether the detention itself was conducted in a proper or improper manner was certainly a question of fact for the jury to decide.

Defendant in error contends that the statute under which the arrest was made was unconstitutional and, therefore, all proceedings were void ab initio, and that no protection is afforded to these plaintiffs in' error, even though they acted in á manner in which the law would have protected them were it constitutional.

"We do not think it is necessary to pass upon the constitutionality of the larw in this action, for we are satisfied that these plaintiffs in error were not bound to act or not act under the possibility that law thereafter might be declared unconstitutional. To otherwise hold would be to take away a safe-guard from persons acting under such a law which could not be otherwise than unwise and unjust. A law is presumed to be constitutional until the courts have declared it otherwise. The Legislature is presumed only to have passed constitutional laws.

Courts should protect officers and others in the administration of the law as it appears in the statutes, promulgated by proper authority, .and so long as they do not transcend the authority given by such statute, their acts should be upheld and they shofild not be mulcted in damage merely because the law is afterwards declared unconstitutional. The verdict of the jury was in favor of the defendant in error, and we can not say that even if the law were so construed, as defendant in error contends, that he could have received or have been entitled to a larger verdict.

We, therefore, find that there is no error prejudicial to the defendant in error in this ease.

The plaintiff in error raises a question upon the refusal of the court to allow him to introduce certain testimony, and also questions of law arising in the charge of the court. On pages 86; 87, 88, 89 of the record, Mr. Brown was examined in chief by counsel for defendant and after it was shown where he lived, he was inquired of as to his having seen three persons going towards Mr. Williams’ residence, and the following as appears from the record:

“Q. What time of night was that?
“Mr. Nicholson: I object to that unless they identify the parties.
‘ ‘ The Court: Do you expect to identify these people ?
“Mr. Carpenter: Only by the circumstances is all. There is not much probability that there was two lots of three people going down there at that time of night.
“The Court: Before he .answers that question, you may inquire with regard to any description of the men.
“Q. Are you able to give any description of the men? A. Oh, no' — no way at all of knowing whether they were — -I couldn’t identify them by no means.
“The Court: Tell whether they were old or young men.
“Witness: They had the appearance of young men.
“Q._ (By Mr. Carpenter.) Where had you been during that evening? A. We were sitting out on the porch. We had company and were sitting out on the front porch.
‘ ‘ Q. How long had you been sitting out there ? A. Probably all evening, — sitting there in our shirt sleeves, talking. I can tell you that.
‘ ‘ Q. How early in the evening do you say you went out there ? A. We probably went out there .after supper'; we generally eat our supper about seven or eight o’clock in the summer time.
“Q. Do you mean sun time? A. Yes. We go by sun time out there.
‘ ‘ Q. Now, then, what would you say as to whether you were out there from that time until the time you saw these parties ? A. Oh; yes, sir. I was out there.
“Q.- Had you seen anything else; that is, a group or three passing there, carrying fishing poles? A. I had not.
“Q. Did you see another group of three later than that passing there, carrying fishing poles, — -I mean later than the time you saw,— ? A. I only saw the one gang of three. That is all I remember of seeing.
“Q. (By the Court.) How long did you remain on your porch in view of the highway that night? A. Oh, it was probably, just after supper we went out there, I suppose probably eight o ’clock, something like that. We stayed there until ten or probably later. We had company that afternoon and we were sitting out on the front porch. •
“Mr. Nicholson: I can not see where even the time would be material, if the court please. These boys admit they went down that way and that they were there. They say about 8:30 and Rutter says about 10. I can not see the materiality of this testimony.
“Q. (By Mr. Carpenter.) What time was it that you saw these three parties passing along with fishing poles?
“Question objected to by the plaintiff; objection, sustained; exception by the defendants.
“Mr. Carpenter: Let the record show that we expect the witness, if permitted to answer the question, to say that it was between nine and ten o’clock that night.
“And thereupon, the court sustained the above objection of the plaintiff, to which ruling of the court the defendants excepted.
“Q. Mr. Brown, what, if anything, did you do with reference to this matter after you saw them pass your home south?
“Question objected to by the plaintiff; objection sustained; exception by the defendants.
“Mr. Carpenter: Let the record show that if the witness were permitted to answer the question, he would testify that he called up Mr. Williams’ residence and talked with Mr. Rutter.
“And thereupon, the court sustained the above objection of the plaintiff, to which ruling of the court the defendants excepted.
“Q. What time was it that you talked to Mr. Rutter?
'“Question objected to, by the plaintiff; objection sustained; exception by the defendants.
“Mr. Carpenter: Let the record show that if the witness were permitted to answer the question, he would say that it was after ten o’clock when he got them on the ’phone.
“And thereupon, the court sustained the above objection of the plaintiff, to which ruling of the court the defendants excepted.”

Mr. Rutter, the man making the arrest, had testified that after he had retired the telephone began to ring, and it continued for some time. ITe then rose and a friend told him over the ’phone that some fellows had gone down his way with fish poles', or something of that kind, and that thereupon he got his gun and went down to the lake and made the arrest.

As the length of time which the defendant in error was confined in the corn crib, between the time of the arrest and the filing of the affidavit, was a material element in the determination by the jury whether or not the detention was unlawful, we think that it was prejudicial error to exclude the testimony of Mr. Brown as to when he called up Mr. Rutter.

Mr. Nicholson, counsel for plaintiff below, admits the identity of these boys, .as will be seen from the record above quoted. Therefore, it seems to us that it was quite material, not only as showing the actual time that this arrest was made, but in corroboration of the testimony of the defendants below as to the time that the arrest actually was made, and in opposition to the testimony of plaintiff below and his companions upon the same matter. For, as before said, the real question of issue in this case, as viewed by the court below, was whether or not such detention was unlawful and the length of time of such detention was a material element in considering whether it was in fact unlawful.

In the instructions of the court ,to the jury upon the question of what damage should be allowed to the defendant, and the character of the same, the court charged as follows:

“If you find for the plaintiff, the question of damages then arises, and you should award such damages as will compensate the plaintiff for the injury which he sustained, unless you find that the acts of the defendants were malicious. Then you may add what is termed in law ‘exemplary damages,’ or ‘smart money. ’ If you find for the plaintiff, as I have said, the plaintiff is entitled to compensatory damages, although the defendants -may have acted in good faith and in the belief that they were discharging their duties in the premises. But if you find that the defendants arrested and imprisoned the plaintiff malieiously, then the defendants are liable to the plaintiff for compensatory damages and you may, if you see proper, also assess further damages as smart money, that is, exemplary damages. By a malicious act is meant an act that is wanton and willful, without regard to the rights of others. That is an act that is malicious. You will determine whether the defendants acted maliciously. If they acted maliciously you may add smart money to the actual damages which you find this plaintiff to have sustained, smart money is given in the way of pecuniary punishment for malicious acts. In allowing for compensatory damages you should allow such damages as will fully and reasonably compensate him for the injuries which he has sustained. The elements for which compensatory damages may be allowed include pain and suffering, if any, mental and physical, the loss of time, if any, in consequence of such false imprisonment, and injury, if any, to the reputation or social position as well as for shame and mortification caused by false imprisonment, and also. reasonable attorney’s fees to the plaintiff for services of the attorney in prosecution. The plaintiff claims $25 in obtaining his release. You may consider that also. And if you find that the defendants not only falsely, but that they also maliciously imprisoned the plaintiff, then, you may allow the plaintiff, in addition to the compensatory damages such further sum by way of exemplary damages as you in your judgment may think just and proper in view of all the facts and circumstances.”

We think that there are two serious objections to this charge, as given by the. court to the jury. The first is' that part of it which refers to what constitutes or may be allowed under the head of compensatory damages.

The court correctly stated that if the detention was unlawful, that if it was unreasonable, the defendants are liable and they were so, even though they might have .acted in good faith, and that if the jury found that the detention was unlawful, they should allow the plaintiff below compensatory damages, but the court erred when the jury was instructed that they might consider as a part of such compensatory damages, reasonable attorney fees to the plaintiff for services of the attorney in prosecution.

In the recent case of United Power Co. v. Matheny, 81 Ohio St., 204, 210, which was a case brought by a passenger to recover damages for an unlawful and forcible ejectment from a street car, and in which a very much similar charge was given, the court says:

“Again, the court proceed to correctly define the circumstances under which, if found by the jury, they might ¡award to the plaintiff not only compensatory damages, but in addition thereto exemplary or punitive damages. The court even cautioned the jury that they should not award exemplary damages, unless they should find that the expulsion of the plaintiff from the car was done not only without justification, but in a malicious and insulting manner.’ The court then proceeded to say, ‘Otherwise, you should only allow such an amount as would fairly compensate him. * * * And as a matter of compensation yon would have a right to allow him a reasonable amount for the services of his counsel in bringing and maintaining this action against the company.’ In this last sentence, we think that the court fell into a serious error. * * *
“But, although we have made a somewhat extended search we are not aware of any well considered case in which it was held that, in the absence of statute or express agreement, attorney’s fees might be included' as part of the damages where compensatory damages only could be allowed. There are, however, numerous cases in which-the contrary doctrine has been •distinctly announced and applied. * * *
“The court below ¡properly said to the jury that if they should find that the ejectment of plaintiff from the car was not justified, but was not done with malice or in .an insulting manner, they could award compensatory damages only; but the court erred in instructing the jury, in that connection, that, in case they should so find, as a matter of compensation they might allow to the plaintiff a reasonable amount for services of his counsel. ’ ’

While counsel fees in bringing the action in the court below might be a .proper matter to consider in allowing damages, even though it is sometimes done under the theory of compensatory damages to the plaintiff who brings the action, it can only be considered and allowed in cases where the facts found by the jury are such as would justify them in allowing punitive or exemplary damages designated in the ease at bar as “smart money. ’ ’

The other matter in this charge which seems to ns to be erroneous, is that in allowing compensatory damages the jury might consider that $25 which was paid to the eounel in having the proceedings of the justice of the peace set aside. Under the facts as developed in this case, we do not think that should have been submitted to the jury. The arrest in this case was lawful and the warrant issued was legal on its face. There was no false arrest, neither was there a false imprisonment after the proceedings were begun ih the office of the justice of the peace.

In the case at bar, it is clear that under the testimony if the plaintiffs in error had taken the defendant in error directly to the justice of the peace and there filed an affidavit and a warrant was then issued, that the plaintiff below would have had no cause of action. There was no imprisonment, or at least no false imprisonment after the affidavit was filed and the warrant issued.

The justice of the peace had jurisdiction and did pass upon the affidavit; the mere fact that his judgment was erroneous would not make the plaintiffs liable. The testimony clearly shows that the justice of the peace gave the plaintiff below thirty days’ time in which to pay the fine or give bond, and in the meantime let him go on his recognizance, and that the deputy sheriff hauled him back to the city. So we are at a loss to know upon what'principle the defendants below could be held liable for attorney fees that were incurred in setting aside the judgment of the justice of the peace.

If these attorney fees had been incurred in an action brought to directly release the plaintiff below from imprisonment, that is from a false imprisonment, then it might have been proper; but in the case at bar there was no false imprisonment, actual or constructive, resulting from the action of the justice of the peace.

In an action for malicious prosecution, such attorney fees, under a proper charge of the court, could be considered by the jury in making up their award of damages, but we think that under the circumstances of this ease, under a charge of false arrest and imprisonment, that such services of an attorney could not be considered as an element of damage.

The plaintiff in error complains further of this charge of the court wherein the jury is instructed that. —

“Rutter, agent of- the plaintiff, is justified for a length of time only reasonably required to take the detained person, that is the .plaintiff, to the proper officer.”

This is admitted to be correct as an abstract proposition of law, bnt is claimed to be misleading. • But we think, considered with other matters in the charge, that it did not mislead the jury-

The court seems to have submitted this matter fully and clearly to the jury and that the defendants below- would not be liable unless Rutter did detain the plaintiff for an unreasonable time and in an unlawful manner.

Judgment of the court below, for error in the rejection of of testimony offered by defendant below and erroneous and prejudicial statement of the law in his charge to-the jury, will be reversed and the case remanded to that court for further proceedings.