text:
    POWER TO FIX RATES FOR WATER.
    Circuit Court of Lorain County.
    Lake Shore & Michigan Southern Railway v. City of Elyria.
    Decided, 1910.

      Municipal Corporations — Special Contracts for Water at Special Bates— Necessity of Approval of Council — Sections 8958 and 8918.

    The power to “assess and collect * * * water rent,” as provided in Section 3958, General Code, is limited to power to fix rates to be assessed equally upon all water takers of a given class, and the board of trustees is without authority to bind a municipality for a period of years by special contracts with individual takers.
    Error to common pleas court.
    This is an action by which the city seeks to recover from the Labe Shore & Michigan Southern Railway Co. for water used by the railway company in its watering tanks and at the depot for flushing closets, etc.
    A petition and answer were filed, and the ease was submitted to the court upon an agreed statement of facts, in which it is agreed:

      “That the plaintiff is a municipal corporation, .and that the defendant is a railway corporation operating its railway through the city of Elyria, Ohio.
    “That said city owns and operates ¡a system of waterworks, which is under the charge and control of the board of public service, according to law.
    “That on May 18, 1905, the board of public service of said city entered into the agreement, which is marked “Exhibit A” and attached to the defendant’s answer herein.”
    This contract reads as follows:
    “This agreement, made May 18, 1905, by and between the city of Elyria, by its board of public service, party of the first part, and the Lake Shore & Michigan Southern Railway Company, party of the second part, witnesseth:
    “That first party does hereby agree to furnish to second party, at such points on first party’s water pipe lines as second party may choose to take the same, such quantities of water as second party may need for its use in said city, all water furnished to be metered and to be furnished at the rate of six cents per thousand gallons, bills to be rendered monthly, second party being privileged to read or inspect meters jointly with first party.
    “That the second party agrees to take said water to the amount of at least fifty million gallons per year, and to pay first party for the same on the rendition of monthly bills therefor at the rate of six cents per thousand gallons.
    “That this agreement shall take effect January 1, 1905, and continue for the period of five years, but it is understood and agreed that if at any time the first party shall fail to furnish second party with a sufficient supply of water and of a quality satisfactory for its purposes, second party may terminate this contract.
    ‘ ‘ That said contract was signed by the members of the board of public service and was approved by the solicitor of said city and all the formalities required by law relating to contracts made with municipal corporations were complied with; but the said contract was not approved by the council of said city, nor authorized by said council.
    ‘ ‘ That in pursuance of said contract, plaintiff began the furnishing of water and the defendant the using thereof under said contract, and that said defendant complied with the terms of said contract, and that the defendant paid and the city accepted pay" for water furnished under said contract according to the terms of said contract until shortly prior to October 1, 1908, when the plaintiff notified the defendant that beginning October 1, 1908, it would not furnish water to the defendant for the price named in said contract, but would charge defendant a higher rate for water thereafter furnished.
    “That the plaintiff continued to furnish water and the defendant used the amount of water claimed in plaintiff’s petition, but refused to pay therefor except at the price named in said contract, which defendant was-willing to do, but which plaintiff refused to accept.
    “It is further agreed that if the court shall find that said contract is not binding on the city, then the court shall render judgment against the defendant for the amount claimed in- the petition, but if the court finds that said contract is binding upon the plaintiff, then the defendant shall pay for said amount of water consumed at the rate of six cents per one thousand gallons, and in the event the petition shall be dismissed at the costs of the plaintiff.”'

      E. G., E. G. & T. G. Johnson, for plaintiff in error.

      E. A. Pounds, City Solicitor, contra:
    Mr. Pounds argued:
    This is a contract with a municipal corporation, and the law-with reference to the rights of the parties under those circumstances is well stated in Schaaf v. Railway, 65 Ohio St,. 219.
    While there is implied municipal liability at common law, the statutes of this state provide the manner in which contracts, agreements, obligations and appropriations shall be made and entered into by municipalities, and they can not be entered into otherwise than as provided by statute.
    There has been no implied municipal liability in matters ex contractu in this state since the passage of the act of April 8, 1876 (73 O. L., 125), part of which now forms Revised Statutes, 1693.
    To state a good cause of action against a municipality in matters ex contractu., the petition must declare upon a contract, 'agreement, obligation, or appropriation made and entered into according to statute. A petition on an account mérely, or quantum meruitj in such cases is not sufficient.
    Persons, dealing with officers of municipalities must ascertain for themselves and at their own peril that the provisions of the statutes applicable to the mating of the contract, agreement, obligation or appropriation have been complied with.

      Winch, J.; Marvin, J., and Henry, J., concur.
   The sole question in this case is whether the board of public service of the city of Elyria had power to enter into a contract with the railroad company to supply it with water at a given rate for five years, the company agreeing to take and pay for not less than a stipulated quantity of water each year during the continuance of the contract.

Two sections of the statutes require consideration in connection with this question. Revised Statutes, 2425 (General Code, 3973) provides:

"Any city or village which has established or hereafter establishes water works, may enter into a contract with any contiguous city or village for the supply of the latter with water, upon such terms as shall be mutually agreed upon by the councils of the respective municipal corporations; and any city or village which has water works, is hereby authorized and empowered to dispose of any surplus water, for manufacturing or other purposes, by lease or otherwise, upon such terms as may be agreed upon by the board of trustees of the water works, or public .works, and approved by the council of such city or village.”

Manifestly the contract here involved, if it be considered as an agreement concerning the disposition of surplus water, can not be sustained, because it was not approved by the city council.

The other section is Revised Statutes, 2411 (General Code, 3958), which reads as follows:

"For the purpose of paying the expenses of conducting and managing the water works, * * * the trustees or board shall have the power to assess and collect from time to time a water rent of sufficient amount in such manner as they may deem most equitable upon all tenements and premises supplied with water.”

The power here granted to "assess and collect from time to time a water rent,” must be taken as meaning the power to fix general rates which shall be assessed equally upon all water takers of a given class, and we so hold. The board is not here authorized to tie its hands or that of the city for a period of years by special contracts entered into with individual takers. Such contracts are authorized under certain circumstances by the other section referred to. Having legislated particularly upon the subject, the general power granted by the Legislature should not be amplified by judicial interpretation, “expressio umus est exclusio alterius.”

The judgment of the common pleas court being in accordance with the views here expressed, it is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    RUNNING AN AUTOMOBILE AT UNLAWFUL SPEED.
    Circuit Court of Hamilton County.
    A. B. Fishwick v. The State of Ohio.

    Decided, August 1, 1911.
    Sections 12603 and 12604, General Code, providing a penalty for operating automobiles at a speed of more than eight miles an hour within the built up portions of a municipality or fifteen miles an hour in other portions or twenty miles an hour outside of the municipality, are constitutional; and a fine imposed upon one who struck and injured a human being while operating an automobile at unlawful speed will be sustained.
    [For a full statement of this case see opinion of the trial court, State of Ohio v. Fishwick, 7 O. L. R., 392.]

      Thomas E. Darby, for plaintiff in error.

      G. E. Urban and W. G. Lambert, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.

       Affirming State of Ohio v. Fishwick, 7 O. L. R., 392.

   As the court is of the opinion that Sections 12603 and 12604, General Code, are constitutional it would seem that the judgment of the court below is correct.

The case we think is fully within the rule laid down in Johnson v. State, 66 O. S., 59.

Judgment affirmed.'


text:
    APPROPRIATION OF NAVIGABLE WATER FRONT RIGHTS BY A MUNICIPALITY.
    Circuit Court of Cuyahoga County.
    John G. White and Chas. N. White v. City of Cleveland, and five other cases.

    Decided, November 27, 1911.

      Eminent Domain — Appropriation by Municipality of Lands on the Lake Shore for Park Purposes — Easement Only Acquired — Riparian Rights and the Right to Build Piers Included — Underlying Rights of Former Owners — Further Compensation May Be Demanded for the Imposing of Additional Burdens — Constitutionality of Act Providing for Conversion of Park to Railway Uses — Authority to Lease Piers and Appurtenances to Transportation Companies — But such Action May Be Enjoined if Attempted before Underlying Rights Are Acquired.

    1. The city of Cleveland having, in 1872, appropriated for park purposes certain lands bordering on Lake Erie, thereby acquired an ■easement for park purposes in the shore and the riparian rights appurtenant thereto, Which include the right to wharf out and make land to the limit of navigability, unless prevented by the state; having made land without interference by the state, the made land is affected by the same easement for park purposes with which the shore lands are affected, as are also any piers built out in front of the made land.
    2. Under the amendment to the municipal code adopted in 1906 (98 O. L., 164), the city has the right to perfect its title in fee simple absolute to both the shore lands and the made lands and piers, by condemnation proceedings providing for the payment of compensation for the underlying right of property to those who were the owners of the lands at the time they were appropriated for park purposes in 1872, or their successors in interest.
    3. Said act of 1906 authorizes the city to appropriate the said underlying right of property for park purposes, plus the right to sell, lease or exchange the lands to a railroad or railroads for depot purposes, if the same are suitable for the location of a railroad passenger station.

      4. Said act of 1906, though it authorizes the completion of the title to the park property for the purpose of turning over part of it to the railroads for depot purposes, is constitutional, and it is no objection to the councilmanic proceedings 'authorizing the re-appropriation, that the councilmen had the latter purpose in mind when they voted to complete the title “for park purposes” only.
    5. The act of 1910 (101 O. L., 236) is a valid enactment, and authorized the city to lease piers in front of said park for use for passenger or freight carriers, with buildings and appurtenances necessary to such use, and it is no objection to the councilmanic proceedings authorizing the completion of the title to said lands and piers under the act of 1906, that the councilmen had in mind to so lease said piers when they voted to complete the title "for park purposes” only.
    6. A lease of said piers entered into between the city and navigation companies, pursuant to said act of 1910, before the city had completed its title thereto by appropriation of the underlying rights of property, pursuant to said act of 1906, will be enjoined at the suit of a tax-payer or one owning said underlying right of property.

      White, Johnson -<& Gannon, C. A. Neff, Squire, Sanders & Dempsey and Luther Day, for plaintiffs.

      N. D. Baker, Golder, Holding & Hasten and Frank E. Stevens, contra. /
    Winch, J.; Marvin, J., and Henry, J., concur.
    Heard on appeal.

       Affirming, with slight modification, White v. Cleveland, 12 N.P.(N.S.), —.

   In these cases we are asked to enjoin the' city of Cleveland from appropriating certain so-called reversionary interests in the lands of Lake View Park for the ostensible purpose of perfecting its title in fee simple to said lands for park uses, but really for the purpose, as it is claimed, of selling about thirty-five acres of said lands to the railroads for depot purposes, and from leasing a pier or dock in front of said park, near the extension of East Ninth street, to the navigation companies.

For these purposes, four suits were orginally brought in the court, of common pleas, two by tax-payers, one addressed against the appropriation proceedings, and one against the lease of the pier, and two by owners of reversionary rights, one against the appropriation proceedings and one against the lease of the pier.

By separate appeals of various parties interested, these four common pleas cases have become six cases in this court.

The lands of Lake View Park, originally appropriated in 1872, lie on the side hill fronting Lake Erie, for a distance of over 2,000 feet, between Erie, now East Ninth street, on the east, and Seneca, now West Third street, on the west, and extending from Summit avenue on the top of the hill at the south, to the right-of-way of the Cleveland & Pittsburgh Railroad Company at the bottom of the hill on the north, an area of about nine acres, which’ in these proceedings, have been called the uplands; next north of the Cleveland and Pittsburgh right-of-way is the right-of-way of the Lake Shore Railroad Company, at that time nearly at the waters edge, and by the same proceedings all the property north of the Lake Shore right-of-way was appropriated, it being then a narrow strip of land, but a few feet in width. In 1894 the city of Cleveland put in a row of sheet piling and bulk heads parallel to the shore in front of the park and over 1,000 feet out in the lake, and established a public dumping, ground there, so that since said date the same has been filled in, and there are now about ninety-nine acres of made land in front of the upland.

In front of this made land, as an extension of East Ninth street, the city has built a pier 100 feet wide, extending out 713 feet to the harbor line established by the United States Government in 1898. Two hundred feet west of this pier' is another pier of the same dimensions, whch is the pier the city has undertaken to lease to the navigation companies.

The claims of plaintiffs with reference to the rights and title of the city in the premises, as acquired by the appropriation proceedings of 1872, are as follows:

!! The claim of plaintiffs in all four suits is that the appropriation proceedings of 1872, the city acquired only an easement for park purposes in Lake View Park, including the uplands; that by appropriating an easement for park purposes in the shore, it at the same time appropriated for park purposes the riparian rights which were appurtenant to the shore; that these riparian rights included the right to wharf out, to make land to the limit of navigability, unless prevented by the state; that the city appropriated this right for park purposes; and having made land by the exercise of this riparian right without interference by the state, the made land was affected by the same easement for park purposes with which the upland was affected; that the piers are but a portion of the made land. Having the right to fill out the entire land to the harbor line, unless prevented by the state, the city had the right to fill out so much of it as it desired for this purpose, and its rights were neither lessened nor increased by the fact that it did not fill it out uniformly, but made part into piers and left part water.”

For the reasons and upon the authorities cited by counsel for plaintiff in his brief, we conclude that the above recited claims are well founded.

As to the rights in the property which were not taken by the appropriation, and which in. these eases are represented by the so-called reversioners, their claims are that “the word ‘easement’ presupposes an underlying right of property in somebody else than the owner of the easement. What is the nature of that property, whether it is to a reverter or a right to additional compensation in case of change of use, or only a right to prevent the change of use is immaterial.”

The city, by procuring an amendment to the appropriation laws in 1906, recognized that as the'law stood in 1872, it acquired only an easement for park purposes in the lands appropriated, and that if its title to the lands was to be enlarged, additional compensation would have to be made to the owner of the “underlying right of property.”'

The amendment referred to is found in 98 O. L., 164, and as the city is proposing to proceed under that act, to perfect in itself a title in fee simple, and its appropriation proceedings thereunder are the proceedings here sought to be enjoined, it is necessary to examine the purpose and effect of the said amendment.

The law, as amended, is now found in General Code, Sections 3679, 3680, 3681, 3690, 3691, 3692, 3699, 3700, 3701 and 3702.

Said act reads as follows:

“Section 1. That Sections 12, 13, 18 and 24 of an act passed October 22, 1902, entitled, ‘An act to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit so as to prevent the abuse of such power as is required by the Constitution of Ohio and to repeal all sections of the Revised Statutes inconsistent herewith,’ be amended to read as follows:
“Sec. 12. Whenever it is deemed necessary to appropriate property, council shall pass a resolution, declaring such intent, defining the purpose of the appropriation, and setting forth a pertinent description of the land, and the estate or interest therein desired tote appropriated; and for water works purposes the council may appropriate such property as it may determine to be necessary; and immediately upon the passage of such resolution, declaring such intent, for which but one reading shall be necessary, the mayor shall cause written notice thereof to be given to the owner, person in possession thereof, or having an interest of record fin, every piece of property sought to be appropriated, or to his authorized agent, and such notice shall be served by a person designated for that purpose, and return made in the manner provided by law for the service and return of summons in civil actions, and in case said owner, persons or their agents, can not be found, notice shall be given by publication once a week for three consecutive weeks in a newspaper of general circulation in the corporation, and council may thereupon pass an ordinance by the votes of two-thirds of .all members elected thereto, directing said appropriation to proceed.
“’Sec. 13. Upon the passage of the aforesaid ordinance, the solicitor shall make application to the court of common pleas or to a judge in vacation, to the probate court, or to the insolvency court, in the county in which the lands sought to be taken is located, which application shall describe as correctly as possible the land to be appropriated, the interest or estate therein to be taken, the object proposed, and the name of the owner of each lot or parcel thereof.
“See. 18. The court shall make such order as to payment, deposit or distribution of the amounts assessed as may seem proper, may require adverse claimants to all or any part of the money or property to interplead and fully determine their rights in the same proceeding and may direct the time and manner in which possession of the property condemned shall be taken or delivered, and may, if necessary, enforce any order giving possession ; and upon the payment or deposit, by the corporation, of the amount assessed, as ordered by the court, an absolute estate in fee simple shall be vested in said corporation, unless a lesser estate or interest is asked for in the application, in which case such lesser estate or interest as is so asked for shall be vested; and any municipal corporation shall have the power to again appropriate, in conformity with the provisions of this act, any real estate which it has previously, lawfully appropriated, in order to perfect, in it, a title in fee simple absolute to such previously appropriated real estate.
‘ ‘ Sec. 24. No contract for the sale or lease of any real estate shall be made unless authorized by an ordinance, approved by the votes of two-thirds of .all members elected to the council and by the board or officer having supervision or management of such real estate, and when such contract is so authorized, it shall be made in writing by the board or officer having such supervision or management and only with the highest bidder, after advertisement once a week for five (5) consecutive weeks in a newspaper of general circulation within the corporation, provided that such board or officer may reject any or all bids and readvertise until all such real estate is sold or leased, as the ease may be: provided, that whenever any city owns real estate suitable for the location of a passenger railroad station, and council shall by ordinance declare that it is necessary that such land be devoted to such use, it shall be competent for such city to sell or lease or exchange such land to such railroad or railroads for such purpose in the following manner: An ordinance authorizing and directing the mayor of the city to deed or lease the land shall be passed; council shall fix in such ordinance by metes and bounds the amount of land to be sold, leased or exchanged, the quantity of interest sold, leased or exchanged, and the consideration to be paid or exchanged therefor by such railroad or railroads, and in such ordinance shall call thereon a special election, to be held upon a day fixed by said ordinance not less than thirty (30) days from the passage thereof, and a majority of all the votes cast on such proposition shall be necessary to its ratification, and when so ratified, said ordinance shall be effective, and the mayor shall proceed to execute a deed of conveyance or lease of said property as therein provided, and in holding such special election, the provisions of Section 2837, Revised Statutes, shall apply.
“Section 2. That said original Sections 12, 13, 18 and 24 be and the same are hereby repealed.”.

The amendment consisted in inserting the words given in italics.

Manifestly the purpose and intent of this legislation was to change the law of the state, as theretofore announced by the courts, and to provide that instead of the municipality acquiring only an easement when it appropriates property for a particular purpose, it shall acquire an absolute estate in fee simple, unless a lesser estate or interest is ashed for in the application.

That the Legislature has a right to change the law upon this subject, in so far as it applies to proceedings thereafter to be brought, there can be no doubt.

But, it is said, that the city of Cleveland, having once appropriated the lands in question for park purposes, has the full and complete use and enjoyment of the same for said purposes and has no need to appropriate for the same purpose the underlying rights of plaintiff reversioners. (It should be remarked here that the proceedings sought to be enjoined are for the appropriation of the reversioners’ rights, as stated in the resolution and application therefor, “for park purposes.”)

This brings us to a consideration of the purpose and effect of that part of the last section of the act, now found as General Code, Sections 3700, 3701 and 3702.

The whole act must be construed together and so construing it,.it is perfectly apparent that the Legislature intended that appropriation should be authorized for the purpose defined in the resolution and the object proposed in the application, plus the right to sell, lease or exchange the lands appropriated to a railroad or railroads, for depot purposes, if the same 'should be suitable for the location of a passenger railroad station.

This gives a specific or good reason or purpose for the pending appropriation, although it is not required by the statute to be stated in the resolution or application, for the power to sell, lease or exchange is found in the chapter of the municipal code referring to the sale or lease of property, while the provisions regarding appropriation proceedings are found in the preceding chapter, yet the municipality has a right under the act quoted, to appropriate for any of the purposes expressed in General Code, Section 3677, with the implied, right of dominion over the property after its acquisition set forth in Sections 3700, 3701 and 3702.

In other words, the last three sections may be read into Section 3677. It was not placed there by the Legislature, because it applies not only to property appropriated, but to that acquired in other ways.

A study of the act of 1906 confirms the suggestion of counsel for plaintiff that its enactment was procured by the city of Cleveland for the very purpose of getting rid of the rights of reversioners in Lake View Park, or acquiring them, so that the city might dispose of part of said park to the railroads for depot purposes.

Was there anything unlawful in this legislation, prohibited by the Constitution? •

As already stated, one purpose of the Legislature was to change the law with regard to the nature of the title vested in the city by appropriation and to make it a fee simple. So far as this affects property thereafter appropriated, it is a valid enactment.

Another purpose was to perfect or complete the title to land already held under appropriation; this was brought within the Constitution by providing compensation to the owners of the underlying rights.

Another purpose was to authorize cities owning the fee simple title to real estate suitable for the location of a depot to declare the necessity that such land be devoted to such use, and to sell, lease or exchange it for such purpose.

The use here stated-is for a public purpose. Railroads and depot companies are authorized to appropriate lands for such purposes. The great 'efforts required and immense sums of money expended in providing suitable terminal and depot facilities in our large cities, testify to the public importance of such conveniences.

The record of these cases is full of a recognition of the public importance of a new depot in Cleveland by the city council and executive officials .and civic organizations. General Manager Moon, of the Lake Shore Railroad, with the shrewd insight of a business man, spoke of “such a station as apparently the people want and the railroads think is quite beyond the railroad’s necessities. ’ ’

By reason of the large amount of land now needed for such purposes in large cities, and the convenience of having depots as near the center of the city as possible, it is manifest that sites for such depots can rarely be acquired without including therein public property, property of the city at an earlier date naturally devoted to some other public purpose, but, by reason of the city’s and the railroads’ growth, now peculiarly .adapted to depot purposes.

It will be noticed that Section 3700 limits the use of the land sold to a public purpose; this is a dedication to that use; “the municipality may sell, lease or exchange such land to such railroad or railroads for such purpose.”

A long line of cases in Ohio recognize the right of the Legislature to authorize a change of use in land already appropriated for a public purpose, and the exercise of such right can be delegated by the Legislature to a municipal or a private corporation. The only question raised in such eases has been as to the rights of the owners of “the underlying rights of property,” where the title has not been held in fee. Malone v. City of Toledo, 28 O. S., 643; Vought v. Railroad Co., 58 O. S., 123; Newton v. Railroad Co., 115 Fed., 781.

We find no infirmity in the legislation of 1906, and have treated of the matter at length because of the reason assigned for the alleged infirmity in the couneilmanic proceedings regarding the pending appropriation proceedings.

If there is no infirmity in the law, how can there be any in the couneilmanic proceedings?

The law authorizes the completion of the title to the park property for the purpose of turning over part of it for depot purposes. What taint of fraud is there in the proceedings if the couneilmen had all this in their minds when they voted for the resolution upon which the proceedings depend?

What are they trying to accomplish by indirection when they follow the express language of the statute ?

We find no- answers to these questions which require us to grant the prayer of the petitions, either of the tax-payer or of the reversioners for an injunction against said appropriation proceedings, so far as the depot use is contemplated.

Turning now to a consideration of the lease of the pier in question attempted to be made by the city to the navigation companies.

This lease was authorized by an ordinance passed in November, 1909.

May 10, 1910, the Legislature passed the following act (101 O. L., 236) :

‘ ‘ Sec. 3699-1. All municipal corporations shall have power to construct, maintain, use and lease, or grant the right to construct, maintain and use, -any pier, dock, wharf or landing for use by passenger or freight carriers, with buildings and appurtenances necessary to such use, on any land belonging to the corporation, and on and over any made or submerged land, whose title is in the corporation or the state of Ohio, in front of land belonging to the corporation. All municipal corporations shall also have power to construct, maintain, use and lease, or grant the right to construct, maintain and use, on and over any land belonging to the corporation and such made or submerged land, any steam, electric or street railroad tracks and appurtenances, necessary for the use of any pier, dock, wharf- or landing as aforesaid. Such lease or grant may be made by the passage of an ordinance fixi-ng its terms and conditions and by the acceptance thereof by the lessee or grantee. Land belonging to the corporation shall be construed to include also any land heretofore or hereafter appropriated or held by the corporation for streets, parks or other public purposes; but this section shall not be construed to authorize the taking of reversionary or other property rights without such compensation and proceedings as are authorized bylaw.”

May 31, 1910, another ordinance was passed confirming the original lease. It is claimed that the legislative act quoted authorized and made good the lease in question, for its terms are within the wording of said act.

The same line of reasoning as that which led to a conclusion that the city may be authorized to perfect its title to the park property so as to enable it to sell part thereof for depot purpose, leads to. the conclusion that the act of May, 1910, is a valid enactment.

This act, by its sectional numbering, is inserted between the old and new part of the last section of the act of 1906. We treat it therefore as if it were a part of said act.

Had it been enacted in 1906, as part of said law, the only additional question to be determined would be: Is the use of the city’s property for piers, docks, wharfs or landing places for passenger and freight carriers a public use of said property?

It is conceded that if exercised by the people for the benefit of all the people, it would be a public use. Indeed, if only pleasure crafts were permitted to land, it might be termed a park use.

Is it lawful, however, for the city to lease or grant to the navigation companies the right to construct, maintain and use the pier with buildings and appurtenances necessary to its use as a landing place for the passenger and freight carriers of the defendant companies only?

One objection to it raised by counsel is that the -navigation companies have no power of eminent domain. A very slight inquiry into the nature of the business carried on by the navigation companies removes this objection.

Like the railroads, the navigation companies serve the public, the one bn the land and the other on the water. Their business in other respects is identical.

For use and convenience of the public they require a wharf and proper buildings as much as the railroads require a depot; nay more, they can not deliver passengers at all without a fixed landing place, while a railroad train can stop at any place where the track runs, whether there is a depot there or not. There is more than a public interest in the steamboat’s landing place; there is a public nse of it.

It would seem, therefore, that there is no good reason why navigation companies should not be directly granted the right of eminent domain, to the end that they may better serve the public by providing proper and convenient landing-places. Landing-places proper and convenient for the people, as Mr. Moon said of the depot.

The Legislature appears to have authorized that such landing-places be first located and acquired by the city, and then leased or granted to navigation companies. If we are right in our conclusion that a public use is thus subserved, there can be no invalidity in the law because the city is given this oversight over the choice of location for such landing-places. There appears to be a good reason for the exercise by the Legislature of its discretion in thus indirectly granting to navigation companies what it has a right to, but has neglected, to grant them directly.

Such being the ease, as was said of the depot proposition, there was no fraud or indirection in the passage of the ordinance to appropriate the reversioners’ rights for park purposes, growing out of the intention in the minds of the councilmen to-lease the pier to the navigation companies.

Having examined all objections to the appropriation proceeding, for the reasons stated, the petitions praying that they be enjoined are dismissed.

It does not follow, however, that the lease already entered into is valid. The act of May 10, 1910, itself says: “this section shall not be construed to authorize the taking of reversionary or other property rights without such compensation and proceedings as are authorized by law. ’ ’

We interpret this as meaning that the lease can not be entered . into until the reversionary interests have been condemned.

Without reciting the terms of the lease, it is sufficient to say that it grants to the navigation companies the full and exclusive use of the pier, with the right to construct thereon a passenger station, ticket office, and freight warehouses. The lease is for a term of forty years, revocable, it is true, on terms, and grants and provides certain railroad switch rights over the made land which, with the pier, we have found belong to the city only in easement, the underlying right belonging to the reversioners. This is placing an increased burden upon the property rights of the reversioners. It can not be placed there, under the Constitution, until they are first compensated in money therefor.

The'prayer of the petition of the reversioners against the lease is granted.

So in the tax-payer’s suit, seeking an injunction against the lease. The city not owning the premises in fee can not lease or grant the entire estate therein to' another, which it is seeking to do. To sustain the attempt to do so would not only involve the city in needless complications, but probably result in pecuniary loss to the city. Nobody would give the full value for such a title. To permit this lease to stand would be to permit an abuse of corporate powers.

For this reason the defendants are enjoined from carrying out the terms of the lease in question. '

After the city has acquired the underlying rights, this judgment will not interfere with any valid lease thereafter entered into.

Judgment in the several cases will be entered as indicated.


text:
    AS TO FEES FOR SERVICE ON THE BOARD OF EQUALIZATION.
    Circuit Court of Sandusky County.
    The State of Ohio, ex rel E. C. Sayles, Prosecuting Attorney, v. E. H. Ganz.

    Decided, October 9, 1909.

      Office and Officer — Compensation of County Commissioners — Not Entitled to Additional Fees for Services a>s Members of the Board of Equalization — Sections 897, 2813 and 2813<z, Revised Statutes.

    County commissioners are not entitled to additional compensation for services as members of the board of equalization.
    Parker, J.; Widdman, J., and Kinkade, J., eonenr.

       Affirmed without opinion, Ganz v. State, ex rel, 83 Ohio State, 468.

   This suit was brought in the court of common pleas on relation of the prosecuting .attorney to recover from the defendant, G-anz, monies which it is averred he drew while commissioner of the county as compensation for his services upon the board of equalization; whether upon the annual county board or the decennial county board is not stated. It is said that these monies, amounting in all to $402, were drawn between the 24th day of March, 1904, and the 10th day of November, 1906. What time the services were performed, on account of which these monies were drawn, is not stated in the petition. Between the 24th day of March, 1904, and the 10th day of November, 1906, some change was made in the law with respect to this matter. The view we take of the whole matter, however, renders that unimportant.

The statute in force between both these dates named in the petition (Section 2804 of the Revised Statutes), and for several years before, provided for an annual county board of equalization of real and personal property, monies and credits in each county, to be composed of the county commissioners and the county auditor. Section 2813 of the Revised Statutes provided for a decennial board of equalization to be composed of the county commissioners, the auditor and the surveyor. Section 2813a of the Revised Statutes provided — and these sections still stand as I am stating them—

“Each member of tbe decennial county board, including tbe county auditor and the county surveyor, and each member of the annual county board of equalization shall be entitled to receive for each day necessarily employed in the performance of his duties, including his duties as a member of the board of revision, the sum of three dollars.”

From April 24th, 1893, until April 23d, 1904, Section 897 of the Revised Statutes provided for the salaries for county commissioners, though I think there were some exceptions in some counties covered by special acts. At all events, the law provided for the salaries of the county commissioners in, Erie county; and before the amendment of this section on the 23d of April, 1904, and the passage of Section 2 of the amendatory act of that date, the law providing for these salaries contains this provision:

“Each county commissioner shall devote his entire time to the duties of his office, and shall receive nothing in addition to the salary so provided, either directly or indirectly, by way of mileage, per diem, expenses paid out or otherwise, except when necessary to go out of their respective counties on official business, each commissioner may. in addition to such salary receive his actual traveling expenses, and no more.” And it provides how this shall be itemized and allowed.

Now while the law was in that form, a case was presented to us in Erie county, case against Commissioner Halliday. The court of common pleas had held that he was not entitled to extra compensation as a member of the board of equalization.- We affirmed that decision, and the decision of this court was affirmed by the Supreme Court, and will be found under the title of Halliday v. State of Ohio, 70 Ohio St., 460. So that if any part of the services performed by Commissioner Ganz were performed before the amendatory act of April 23d, 1904, that question would be clearly determined by this decision by the Supreme Court to the effect that commissioners were not entitled to such compensation.

The question remains as to how a member would stand as to services performed after the amendment of April 23d, 1904. It will be observed that this act of April 23d, 1893, does not attempt to, nor does it purport to repeal any other law excepting Section 897 which it amended; so that we held and .the Supreme Court held that, without any attempt to repeal Sections 2813 and 2813a, the provisions of these last mentioned sections as to the compensation of county commissioners were superceded by the provision of Section 897, R. S., above quoted, and that they were not entitled to the compensation. Now comes the amendatory act of April 23d, 1904, providing for salaries to the county commissioners varying somewhat from the provisions of the former statute upon that subject, and adding another section, which is put in the revision of 1908 of Bates Annotated Statutes as Section 897-2: ,

“The compensation provided in the preceding section shall be in full payment of all services rendered as such commissioner. But such total compensation shall not exceed the sum of $3,500 per annum.”

And by Section 3 of that act (which is not carried into the revision) it is provided that:

“And all other acts or sections of the Revised Statutes, so far as they may be inconsistent with the provisions of this act, be and the same are hereby repealed.”

Now can it be that the attempt to repeal all inconsistent acts, and the adding of the provision that the payment of the salary shall be in full payment of all services rendered as such commissioners would have the effect of giving the commissioners the benefit of the provision as to fees in Section 2813a, which it had been held by the Supreme Court they were not entitled to before the passage of the act of April 23d, 1904? We do not see how such a contention can be sustained. Of course, the question has not been presented to us in that form, because counsel do not seem to have been advised of our holding in Erie county, and of the affirmation thereof by the Supreme Court; but it comes to that, and that is the way it is presented, in view of that holding; and we think it is entirely clear that there is nothing in this amendatory act of 1904 that could give to the commissioners fees as members of the board of equalization which they were not theretofore entitled to receive.

The common pleas court sustained a demurrer to this petition. We hold that was error, and we hold that the demurrer should be overruled; and therefore the decision will be reversed and the case remanded, with an order that the demurrer shall be overruled.


text:
    INJURY TO PASSENGER STEPPING FROM CAR INTO HOLE IN THE STREET.
    Circuit Court of Hamilton County.
    Josephine Heils v. The Cincinnati Traction Company.
    Decided, November 25, 1911.

      Parties — Joinder of, in Action for Negligence — Torts which are Ooncur- ■ rent and Related hut are not Joint.

    A traction company and a municipality are improperly joined as parties defendant, where the action is for injuries to the plaintiff sustained in stepping from a car into a hole in the street.
    The plaintiff sued for $10,000 damages on account of injuries received in alighting from a car on Spring Grove avenue. Plaintiff stepped into a hole twelve inches deep in the street, and was thrown violently to the ground. She charged negligence against the traction company in stopping the car directly over the hole, and against the city in failing to keep the street in repair and also in failing to have lighted a street lamp at that point, which if lighted would have disclosed the hole to plaintiff before she stepped from the car into it.

      H. A. Reeve, for plaintiff in error.

      Geo. H. Warrington, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   We think the demurrer of the Cincinnati Traction Company filed to the petition of plaintiff in error was properly sustained by the trial court.

While perhaps under the allegations of the petition the acts of negligence complained of against the traction company and the city of Cincinnati are such as constitute concurrent and related torts, yet fhe same are not joint, being independent in character, and therefore the defendants are not in law joint tort feasors. Morris v. Woodburn, 57 O. S., 330; Village of Mineral City v. Gilbow et al, 81 O. S., 263.

The action of the court upon the demurrer is correct and the judgment is affirmed.


text:
    CONSERVATION OF SURPLUS LIFE INSURANCE FUND.
    Circuit Court of Cuyahoga County.
    James G. Bell v. The Union Central Life Insurance Company.
    Decided, November 20, 1911.

      Life Insurance — Right of Participating Policy Holders to Maintain Action to Conserve Surplus Fund — Previous Action in Quo Warranto Testing Right to Declare a Dividend out of Surplus Fund not a Defense — '-Sections 12825 and 12827.
    1. Participating policy holders in a life insurance company may maintain an action in equity to conserve for their benefit a surplus fund accumulated under the by-laws of the company for their benefit from earnings of participating policies.
    2. It is no.defense to an action brought for such purpose by and on behalf of all of said participating shareholders that the Supreme Court in an action in quo warranto, brought by the attorney-general against the corporation for the purpose of testing the right of the company to declare a dividend to its stockholders out of said surplus fund, has refused the relief prayed for, the participating policy holders not being parties to said action.

      A. E.-Martin, William Eowell and W. K. Stanley, for plaintiff in error.

      Jas. R. Garfield, Maxwell Ramsey and George A. Welch, contra. . ,
    Winch, J.; Marvin, J., and Henry, J., concur.
    Error to tbe Court of Common Pleas.
   Plaintiff filed his petition in behalf of himself and all the policy-holders of the defendant company, similarly situated with himself, setting up the fact that he became a participating policy-holder in the company on March 15,1904, and as such, entitled under- Ms policy and the by-laws of the company to the benefits of a surplus fund accumulated by it which, .on December 31, -1907, amounted to $2,422,184.25.

'Up to that date the company had a capital stock of - $100,000 on which the stockholders were entitled to a semi-annual dividend of five per cent., and additional dividends from profits derived from non-participating policies.

The by-laws provide that from the residue of the profits arising from the mutual business, after paying necessary expenses and approved claims, setting aside a 4 per cent, reserve, establishing a surplus fund and paying said dividends to stockholders, the board shall annually declare a dividend to the mutual policyholders according to the kind and class of each policy or place to the credit of the policy its equitable proportion of the undivided surplus which shall be payable according to the terms and conditions of the policy.

He alleges that up to the first day of January, 1908, the company made no separation of its receipts and expenditures, profits and losses, as they pertained to participating and to nonparticipating policies.

He alleges that the entire surplus fund on-said date had accumulated from the profits derived from participating policies, and that by reason of the manner in which said fund had been kept -and dealt with by it during the company’s entire existence, the company had estopped itself from claiming, as against the participating policy-holders, that any portion of said fund had been derived from profits on non-participating policies.

He alleges that on said 3.1st day of December, 1907, the company undertook to apportion said surplus fund into two funds, such that the amount credited to one fund should represent the surplus, arising from its participating policies, and that the amount credited to the other fund should represent the surplus .arising from the non-participating policies, and without any basis therefor or right so to do, on said last named' date placed $779,788 of said surplus fund into a separate fund, claiming the right to use and treat said fund as a fund derived from non-participating policies, to be used for the sole benefit and advantage of its stockholders.

He sets up that out of this fund the company, on June 16, 1908, declared a stock dividend to its stockholders of $400,000, upon which it proposes to pay to them a semiannual dividend of 5%, making an annual charge-against the company therefor of $40,000.

The petition is vohiminous and contains many other allegations tending to show the unlawfulness of the transactions mentioned, the interest therein of the participating policy-holders, thé prejudice to their rights arising therefrom, the impossibility of estimating the money damages to each of said policy-holders, and ends with the following prayer:

. “Wherefore, plaintiff prays that pending this action said company be enjoined from appropriating any part of said surplus fund to a stock dividend, and from delivering said stock certifi.cates for said proposed dividend from said surplus fund; and from paying any dividends to stockholders other than said 5% semi-annual dividend on $100,000; and that on final hearing said injunction may be made perpetual. And plaintiff prays that said defendant may be required to account fully for said surplus fund, and that the amount and condition of said fund may be fixed and determined by the court; that the court find and determine and decree said surplus fund to be a trust fund for the sole use and benefit of participating policy-holders who became such prior to December 31st, 1907, and that the court make such order and direction to said company with respect to the keeping and maintenance of said, fund, and its future accumulation, and share of profits of said business, and as to its distribution and apportionment among said participating policy-holders as shall be found to be just and equitable, and as will secure the full and complete enjoyment and distribution of the same by said participating policy-holders during the lives of their respective policies, and of all future accumulations thereon as well. And plaintiff prays for all such other and further relief in the premises, as shall be found to be just and equitable.”

To this petition an answer was filed; setting up several defenses. The third defense, as a bar to the present proceedings, sets up the proceedings in the quo warranto ease brought by the Attorney-General of the state in the Supreme Court against the company, to test its right to apportion said surplus fund and declare said stock dividend of $400,000, and the judgment of said court in favor of the company, found in 84 O. S., 459.

To this third defense of the answer, a demurrer was interposed and overruled, whereupon the petition was dismissed and, judgment rendered for the defendant. The ease is here on error, and we are asked to review the sufficiency of the petition as well'as the sufficiency of said third defense.

We deem the petition sufficient to authorize an accounting, and part, at least, of the relief prayed for. Were the plaintiff and his class stockholders in the company, objecting to the division of funds accumulated for their benefit, and diverted to the benefit of other stockholders, nobody would question their right, after refusal of the company, itself, to remedy the matter, to invoke equity jurisdiction to redress or prevent any wrong injuriously affecting the property rights of the corporation. The rule must be the same here.

The participating policy-holders,- under the by-laws and their policies, have a very decided interest in keeping the surplus fund intact. This right may rest in contract,- but is unenforceable by each policy-holder by an action for damages. The benefits to each policy-holder are contingent upon many circumstances, which may increase or diminish said fund before actual division of it by payment of aliquot shares thereof to beneficiaries of said policy-holders. Hence, there is no way of estimating the damages to them. However, they should not be left remediless, and equity, considering the mutuality of the relations of the policyholders to the company and the company to them, assimilates such relations to that of stockholders in a corporation to the corporate entity.

As stockholders in a corporation can not sue for dividends until the directors have declared them, but can bring an action against the company, upon its refusal to act, requiring it to conserve the corporate assets, so here the policy-holders can not sue for dividends from the surplus until the directors have declared them, but should be entitled to require the company to protect said surplus and administer it for their benefit.

. As to the third defense in the answer: The third paragraph, of the journal entry of the Supreme Court reads as follows:

“That, as found by the circuit court, the defendant in error made no separation of its receipts and expenditures, profits and losses,.as they pertained to participating and to non-participating policies, from .the time it began the life insurance business up to the first day of January, 1908, and that, in such conduct of its business, it accumulated a surplus, which, on December 31, 1907, amounted to $2,422,184.25, of which a sum largely in excess of $400,000 was derived from non-participating policies; and that the surplus derived from the non-participating policies of the defendant for the years 1908 and 1909 was in excess of $400,000.”

The finding that the surplus derived from the non-participating policies of the defendant for the years 1908 and 1909 w-as in excess of $400,000, is not to be overlooked. It was December 31, 1907, that the company readjusted its books, and started to keep separately the profits from participating and non-participating policies.

The plaintiff here makes no objection to the company’s separating said profits, from that time forward, and if the stock dividend is to be paid out of profits thereafter arising from non-participating policies, he will make no complaint, but he does object to taking out of the surplus fund heretofore accumulated, the sum of $779,788 and appropriating it to the benefit of the stockholders.

It was a matter of indifference to the state when this sum of $400,000 was accumulated; all it was interested in was whether the company had a right to declare the dividend and issue the additional stock. It would seem as if it purposely left to interested parties to determine from which fund the $400,000 was taken.

This brings us to the question of the effect to be given to an adjudication in quo warranto, a proceeding between the state and the corporation. Does it necessarily and always determine the rights of individuals, creditors for instance, as between them and the corporation ? Such is claimed to be its effect by' counsel for the company, and so the court below found.

In this, we think, it was in error. Some of the decisions in this state, throwing light on this question, are as follows:

In the case of State, ex rel, v. Cincinnati Gas Light & Coke Co., 18 O. S., 262, it was held that a judgment in favor of the defendant in the district court of Hamilton county, upon an information in the nature of a quo warranto, filed by the prosecuting attorney of that county, upon an individual relation, is not a bar to a subsequent information of a similar character, filed by the attorney-general.

Also, that the state, in a quo warranto ease, would not be bound by an injunction issued against the corporation by the circuit court of the Uuitéd States in a case brought by an individual against the corporation, to which case the state was not a party.

In the case of Rawland v. Meader Furniture Co., 38 O. S., 269, it was held:

“Where a corporation de facto, in a proceeding in quo warranto, has been ousted from the franchise of being a corporation, such ouster is no defense to' a suit by a creditor against stockholders, to enforce payment of their stock subscriptions.”

In the case of Society Perun v. Cleveland, 43 O. S., 481, it was held that rights acquired or liabilities incurred by a de facto •corporation and by parties dealing with it in good faith, will not be divested or defeated by a subsequent judgment in quo warranto proceedings.

In State ex rel v. Railroad Company, 50 O. S., 239, the court-refused to determine the private rights of the relator as against • the corporation with regard to the use of certain lands, said use not being a usurpation of the property rights of the state.

But it is said that the rule to be deduced from these cases has been changed or modified, or explained by subsequent legislation, and our attention is called to that part of General Code, Section 12327, which reads as follows:

‘ ‘ The orders of the court in which such quo warranto proceedings are instituted, or of the court to which they are remanded, shall be binding upon the trustee or trustees, stockholders, creditors and other persons interested in such corporation, unless reversed by appropriate proceedings therefor. ’ ’

This is taken from an amendment to Sections 6781 and 6782 of the Revised Statutes, found in 100 O. L., 102, the title of the act being: “To amend Sections 6781' and 6782 of the Revised Statutes of Ohio, relative to the authority of courts over trustees of defunct corporations.”

This title correctly describes the original sections and the recent law, including what is now found in General Code 12327, has reference to orders made in the dissolution of corporations. “Such quo warranto proceedings” refers to quo warranto proceedings wherein the court renders a judgment dissolving the corporation and appoints trustees "for the benefit of the creditors and stockholders thereof” to wind it up.

Very properly such proceedings should bind the creditors; they are represented in the proceedings by the trustees appointed to represent them.

We do not think this statute applies to the case at bar, nor do we think the creditors of the defendant corporation were, as a class, or .otherwise, represented in the quo warranto proceedings set up in the third defense of the answer, nor that their rights were in any manner adjudicated or affected by the judgment therein rendered.

For error in overruling the demurrer to the third defense and in not sustaining it, and for error in dismissing the petition, the judgment is .reversed and the cause remanded, with instructions to sustain the demurrer to said third defense, and for further proceedings according to law.


author: Jones, J.

text:
    CONSTRUCTION OF BEQUEST TO A WIDOW.
    Circuit Court of Hamilton County.
    George Clifford, Executor, v. Mary Foster et al.
    Decided, December 9, 1911.

      'Wills — Rules for Construction of — Meaning of the Word “Secured” When Used with Reference to the Rights Testing in a Widow by Law — Evidence. a<s to Extrinsic Facts — Section 8573 et seq.

    An aged and childless man, possessed of personal and real property in Ohio and real property in Kentucky, all acquired by purchase, left surviving his widow, with whom he had lived for thirty-three years, and one brother. His will bequeathed to his widow all of his estate, real, personal and mixed, “which is secured to her as my widow by the laws of distribution of the state of Ohio, in cases where wives survive husbands who die intestate”; and to his brother he bequeathed absolutely all the rest and remainder of his estate.

      Held: That all the personalty of the testator and all of his real estate situated in Ohio goes to his widow, and all the realty belonging to his estate and lying outside of Ohio goes to his brother.

      Krcm.er & Bettman and H. A. Bayless, for plaintiff in error.

      Oliver B. Jones and Morse, Tuttle & Harper, contra.-'
    Smith, J,; Swing, J., concurs; Jones, J., dissents.
   In the above ease this court is called upon to construe the following will:

‘ ‘ In the name of the Father of All, Amen. I, Thomas Foster of Cincinnati, Ohio, being of sound mind and memory, and-well knowing the uncertainity of all life, do make, publish and declare the following for, and to be, my last will and testament, hereby revoking and cancelling all former wills by me made.
“1. I desire and direct that all my just debts be first paid out of my estate.
“2. I give and bequeath to my beloved wife, Mary Foster, all that part and interest in my estate, real, personal and mixed, which is secured to her, as my widow by the laws of distribution of the State of Ohio, in the cases where wives survive husbands who died intestate.
“3. I give, devise and bequeath absolutely all the remainder of my property, real, personal and mixed after the dispositions in items one and two herein have been made, and wherever the same may be situated, to my dear brother, James E. Foster, now of Chicago, Illinois.
“í. I hereby nominate and appoint iny'said brother, James E. Foster and George Clifford, of Cincinnati, Ohio to be the executors of this will, and my faith in each justifies me to request herein, as I do, that they be not required to give bond.
“In testimony whereof, I have hereunto set my hand and seal, this first day of March, 1906.
“ (Signed) Thomas Foster [seal.]
“Signed, sealed, witnessed and declared, this first day of March, 1906, by the said testator, Thomas Foster, in our presence as his last will and testament, and signed by us as witnesses at his request, in his presence and in the presence of each other.
“(Signed) M. W. Conway;
“Joseph Cdieeord,
“Edwin Kedly.”

In the case of Townsend v. Townsend, 25 O. S., 477, the rule of construction of wills is as follows:

“1. In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.
“2. Such intention must be ascertained from the words contained in the will.
“3. The words contained in the will, if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear from the context that they were used by the testator in some secondary sense.
“4. All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.
“5. If a dispute arises as to the identity of any person or . thing named in the will, extrinsic facts may be resorted to, in so far as they can be made ancillary to the right interpretation of the testator’s words, but for no other purpose.”

The evidence discloses that the testator, Thomas Foster, a resident of Cincinnati, Ohio, died in December, 1908, leaving as his widow, Mary C. Foster, to whom he had been married 33 years at the time of his death; he was 83 years old; he left no children. An older brother, James Foster, survived him.

The property owned by the testator consisted of personal and real, property, the latter being in Hamilton county, Ohio, and Campbell county, Kentucky; he had acquired all of this by purchase, no property that he left being ancestral.

With this evidence before us, under the rule above cited, we we do not find any ambiguity in the will of the testator. It is apparent that he gave to his wife all of his personal property and real estate that would go to her by the statutes of Ohio had he died without making a will and she survived him, and this is to be governed • by the laws of distribution contained in Sections 8573, 8574, 8578, 8592, and 8606 of the General Code of this state.

He, therefore, devised to his widow all of his personal-property and all of his real estate within the state of Ohio; and to his brother all of his real estate lying outside of this state.

Some argument has been made upon the use of the words “secured to her” by the testator, but it is evident that in the use of these words, he meant what she would “obtain” or “have” as his widow.

We do not think the evidence of the attorney who drew the will, as to the declarations of intention of the testator, is competent.

Judgment affirmed.

Jones, J.

(dissenting).

The question in this ease is: What portion of the estate of testator goes, under his -will, to the widow?

It is conceded that James E„ Foster, under the third item of the will, is made residuary legatee and takes the remainder of the estate after the widow’s bequest is taken out.

Item two gives to the “wife Mary Foster all that part and interest in my estate, real, personal and mixed which is secured to her, as .my widow by the laws of distribution of estates, of the state of Ohio, in the cases where wives survive husbands who die intestate.”

I fail to see any ambiguity in this provision. No extrinsic evidence is necessary to explain it and it was error to have admitted such evidence in the lower court.

The widow takes what “is secured” to her by the laws of Ohio “as widow.” Not “will be secured to her” but “is secured to her,” meaning, of course, at the time the will was made.

Now, what portion of a man’s estate is secured to his wife during his lifetime? The word “secure” as used here means “make safe,” “make fast.”

Nothing is secure to a wife, i. e., “safe” to her or “made fast,” except her dower interest in real estate and distributive portion of personal property. As to the balance of the consort’s estate, even where there are no children, she is only the prospective heir at law. The remaining two-thirds of the estate is not secured to her in any way. Her coming into possession of' it at his death is dependent upon the existence or non-existence of a will. If there are no children and he dies intestate she gets this two-thirds of the property, not by virtue of her being the widow, but as heir so designated by statute.

This portion of the estate is no more secured to her during coverture than a child’s prospective share in his or her parent’s estate is secured to such child.

The widow, therefore, takes under this will, in my opinion, an allowance for support for one'year, free occupancy of the mansion house one year, one-half of the first four hundred dollars of the personal property and one-third of the remainder, one-third of the real estate for life and any other interests, if any, in decedent’s estate which were secured to her on the date of the execution of the will by the laws of Ohio.

Assuming' that the will is ambiguous and that it is proper to resort to the evidence as contained in the bill of exceptions herein to explain its provisions, it seems to my mind that the above construction becomes the more manifest as the true intention of the testator.

It appears that testator was over eighty years of age and childless ; that the wife was also far advanced in years; that the estate consisted of real and personal property valued at one hundred and sixty-five thousand dollars. There is real estate in Kentucky worth twenty thousand dollars and the balance of the property is in Ohio.

According to the construction contended for by counsel for the widow and adopted by the majority opinion of .the court, the widow takes all the property in Ohio and the residuary legatee takes the Kentucky real estate.

To me, it is inconceivable that an attempt to express such an intention by the language employed in this will would be made by a man who possessed the business ability to accumulate this fortune, when such desire could have been expressed so briefly and clearly that a child could understand.

There is one more consideration leading me to the conclusion here recorded that I will briefly refer to.

Testator says that his wife is to have the portion “that is secured to her” by the laws of' Ohio in “cases where wives survive husbands who die intestate.”

• There are several different statutes or sections making provision for widows and the widow’s portion differs with differing facts and circumstances. It is dependent in amount upon whether the real estate is ancestral or non-ancestral and upon the decedent leaving children surviving. The construction which my associates favor can not be given without adding at the end of the second clause of the will the words “and childless” or words of the same import.

.It is necessary to add to or supply nothing in this will. A portion of a man’s estate “is secured” to his wife and can not be affected by the manner in which the property was acquired, or by his leaving or not leaving issue, or in any other way except by her own act.

It was this portion that was given to the wife in this ease.


text:
    MUNICIPAL LIABILITY FOR DEFECTIVE SEWERS.
    Circuit Court of Cuyahoga County.
    Village of Lakewood v. Catherine P. Swift.
    Decided, December 27, 1910.

      Municipal Corporations — Liability for Damages Resulting from, a Defective Sewer — Municipality Not Saved by Fact that the Sewer was Constructed from a Fund Raised, by General Taxation — Competent Evidence as- to Obstruction of Main Outlet — Proper Use of the Words “Unprecedented Rainfall” in Charge to Jury.

    1. Where the flooding of a cellar is due to the hacking up of sewage in a private drain connected with a defective public sewer, the municipality is not relieved from liability for resulting damage by the fact that the said main sewer was built by the corporation with funds derived from taxation, and not by assessment upon the property benefited.
    2. In an action for damages from the flooding of a sanitary sewer, evidence that property drained by a storm sewer emptying into the same manhole as the sanitary sewer, and also that other property having drains leading into the sanitary sewer were flooded at the same time, is competent as tending to show an obstruction in the main sanitary sewer below the manhole; but evidence of obstructions in the sewer above the property in question, and of sediment in the main sanitary sewer more than nine months after the flooding complained of, is incompetent.
    3. In fixing the measure of municipal liability for the overflowing of sewers to the damage of the property drained, the use of the word “unprecedented,” as applied to the rainfall which overtaxed the sewers, would be misleading if unexplained or qualified; hut’ considering the locality under consideration the use of the words is not prejudicial in the instruction, “if the sewer * * * was not of sufficient capacity to take care of the ordinary flow of water and sewage, including that brought in by the new streets, and the backing up was caused by an unprecedented rainfall, something which could not have been reasonably anticipated, considering rainfalls in this latitude and vicinity,” .then liability results.

      E. G. Guthery, City Solicitor, for plaintiff in error.

      Patterson & Nieding, contra.
    Marvin, J.; Henry, J., and. Winch, J., concur.
    Error to Common Pleas Court.-
   Defendant is a property owner in the village of Lakewood and brought suit against the village, claiming damages by reason of the flooding of her cellar resulting from the backing up of water in a sewer drain leading from her cellar to a main sewer of the village on Detroit street. She recovered a judgment, and by proper proceedings the case is here for review.

Numerous claims of error are made, one of which is that the verdict should have been directed for the village for the reason that it is shown that the Detroit street sewer, the main sewer into which the drain sewer of the plaintiff below emptied, was. constructed at the expense of the village, the money for the purpose being raised by general taxation and not by assessment upon property benefited; the claim being that the sewer being so constructed, 'the plaintiff whose sewer emptied into this main sewer, by permission of the village, could recover nothing, however defective the main sewer might have been. Authorities on this proposition are cited, notably the ease of Dermont v.Detroit, 4 Mich., 435. This case seems to sustain the contention of the village, but the decided weight of authority is the other way, so far as we are able to find. A large number of cases are cited and commented-upon in the brief furnished by counsel for the' defendant in error. In Hart v. Neillsville, 125 Wis., 546, it is held by the Supreme Court of Wisconsin, at page 702, that where as a matter of right a private drain is connected with the main sewer through an opening left therefor, and damage results to the property from which the private drain leads, does not relieve the municipality from liability in case there is a flooding of the property of the person constructing the private sewer.

In the case of Daggett v. Cohoes, 54 Hun., 639, it is said:

"The fact that plaintiff had voluntarily connected her premises with the public sewer of defendant is no bar to her recovery for injuries caused by its negligence in permitting it to be out of repair.”

To the same effect is Bolton v. New Rochelle, 84 Hun., 281.

See also the ease of Murphy v. Indianapolis, 158 Ind., 238, where it is said in the syllabus: “A city can not by ordinance relieve itself from liability resulting from its negligence in maintaining a sewer.”

And in the case of Merzweiler v. Akron,, not reported, decided by this court in Summit county, April 8, 1910, the following quotation from 2 Dillon, Mun. Corp., Section 1049, was referred to and seems applicable here:

“A municipal corporation is liable for .negligence in the ministerial duty to keep its sewer (which it alone has the power to control and keep in order) in repair, as respects persons whose estates are connected therewith by private drains, in consequence of which such persons sustain injuries which would have been avoided had the sewers .been kept in a proper condition. If the sewer is negligently permitted to become obstructed or filled up, so that it causes the water to back-flow into cellars connected with it, there is a liability therefor on the part of the municipal corporation having the control of it, and which is bound ‘to preserve and keep in repair erections it has constructed, so that they shall not become a source of nuisance ’ to others. The work of constructing gutters, drains, and sewers Is ministerial, and when, as is usually the case, the undertaking is a corporate one, the corporation is responsible in .a civil action for damages caused by the careless or unskillful manner of performing the work.”

But it is said that there was error in the admission of certain evidence. One Walter D. O’Donnell was permitted to testify, over the objection of the village, as appears at page 110 of the bill of exceptions, that his sewer was flooded at the time of the storm which flooded the cellar of Swift. It appears that the drain from O’Donnell’s cellar connected with a storm sewer of the village along the same street and but a few inches higher along the street than the sanitary sewer into which Swift’s private sewer entered. The fact being that both the storm and sanitary sewers emptied into the same manhole, and that the evidence tended to .show that this manhole filled up with what was emptied into it from these -two sewers. We think this evidence was competent, as tending to show that the injury to Swift resulted from an obstruction in the sanitary sewer which may .'have been further down the incline of the sewer than this manhole.

Complaint, too, is made as to the admission of any evidence as to the flooding of other cellars which had drains leading in to this sanitary sewer. We hold that the court did not err in admitting this evidence. The fact that other cellars were flooded tended to show that there was failure on the part of this main sewer to carry off what it should have carried off, and therefore tended to show that there was some defect in it. An examination of the record fails to disclose any error on the part of the court in its rulings upon evidence offered in the case, except that the court permitted evidence to be introduced tending to show obstructions in the Detroit street sewer at a point higher up in the sewer than the point where Swift’s sewer emptied into the main sewer. This evidence did not in any wise tend to show that the plaintiff was injured by reason of any defect or obstruction in the sewer. However faulty the condition of the sewer may have been above the point where the sewer of Swift emptied into the main sewer it could not have caused or help to cause the flooding of which Swift complains. This evidence was erroneously admitted and was calculated to prejudice the jury against the municipality. Again, the court permitted evidence to be introduced over the objection of counsel for the village tending to show that some nine or-ten months after the injury to Swift’s property there was sediment and other obstruction in the main sewer below the point, that is further down the line of the sewer than the point where Swift’s sewer emptied in. This evidence did not tend to show that there was any obstruction there at the time of Swift’s injury, and it was error to admit it, and was calculated to prejudice the jury against the village.

For these two errors, and for these alone, the judgment of the court below is reversed.

It is not at all improbable that without this evidence the verdict would have been as it was, but since it is not certain that it would have been and since this testimony was erroneously admitted and may have affected the verdict, indeed, may have directly tended to affect the verdict against the village, we feel that the judgment must be reversed.

Complaint is made that the court erred in its charge to the jury. The court said to the jury:

“If the sewer in Detroit street was of sufficient capacity to take care of the ordinary flow of water and sewage, including that brought in by the new streets, and the backing up was caused by an unprecedented rainfall, something which could not have been reasonably anticipated, considering the conditions as to rainfalls in this latitude and vicinity, then the village would not have been liable.”

Complaint is made of the use of the. word “unprecedented.” It is said that a rainfall may be so excessive as to overflow sewers, even though they are properly constructed and equipped, and, so relieve the. municipality from liability even though the rainfall be not “unprecedented.” This is true. That fqr which the municipality would be liable would be injury sustained by reason of the insufficiency of the sewer to take.care of the water and sewage that .might reasonably be anticipated to be brought into the sewer during the times of such rainfalls as are likely to occur in this locality, and the court so said to the jury, using this language: - ...

£ ‘ If the storm was such volume of rainfall that ordinary prudence and foresight would not have anticipated it and provided against it, and this was the cause of plaintiff’s-injury, plaintiff could not recover. ’ ’

• The court explained what was meant by the use 'of the'word “unprecedented” in the passage-from the charge already quoted, by what immediately followed after the use of that word, for the language taken together is:

‘£ If the sewer in Detroit street was of sufficient capacity to take care of the ordinary flow of water .and sewage, in'cluding that brought in by the new streets, and the backing up was caused by an unprecedented rainfall, something which could not have been reasonably anticipated, considering the .conditions as to rainfalls in this latitude and vicinity, then the village would not be liable. ’ ’

We are of opinion that the charge as a whole was correct and was not misleading, although the use of the word “unprecedented,” not explained or qualified, might be calculated to mislead. •. •

The judgment of the court is-reversed for the reasons given in this opinion and remanded to the court of common pleas.


text:
    AS TO THE SUFFICIENCY OF A NEWSPAPER FOR THE PUBLICATION OF ORDINANCES.
    Circuit Court of Lucas County.
    The City of Toledo v. John M. Babcock et al.
    Decided, 1911.

      Publication of Ordinances — Determination as to the Sufficiency of the Periodical Selected — Designation of Payer by Council Creates a Presumption of Sufficiency Only — Basis for Determining Circulation.

    1. The fact that council has determined that a periodical, wherein it is proposed to publish ordinances, is a newspaper of general circulation, creates no more than a presumption that such is the fact, and does not preclude a court from examining the question for itself and making its own determination.
    2. The basis upon which the question of circulation should be determined is not subscriptions paid in advance, but bona fide subscriptions whether paid in advance or otherwise.

      Cornell Schreiber, City Solicitor, and Alonzo G. Dttrr, for plaintiff.

      George N. Fell, for Alonzo A. Reilly.
    Kinkade, J.; Wildman, J., and Richards, J., concur.
    Appeal from Lucas Common Pleas Court.
   This is an action that was brought in the court of common pleas to restrain the execution on the part of the officers of the city of a contract that had been entered into by them with the owner of the Toledo World, Alonzo A. Reilly, for the printing of the ordinances, resolutions, etc., of the city.

' A. contract had been entered into with the Toledo Blade, as a Republican newspaper, and then a contract entered into in regular form with the Toledo World, as being a paper of opposite politics.

The relief prayed for in the petition was denied in the court of common pleas and the ease is here on appeal with quite a volume of evidence for the examination of the court.

The only question presented seriously in this court is the question whether the Toledo World is shown by the evidence to have been a .newspaper of general circulation in the municipality. There seems to have been little question but that it was a newspaper, and practically no question made but what it was of opposite politics. Nobody has seriously claimed that it has traveled along the lines of the Blade; but the question is very seriously made here as to whether it is a newspaper of general circulation as contemplated by the statute, and the evidence is very largely addressed to that question.

. It is said by counsel for the city that under the statute, the only subscription that can be recognized in determining valid subscriptions to a newspaper is a subscription that is paid in advance; it must be a paid subscription, and “paid” means paid in advance, it is said. Our attention is called to the fact that a provision of the statute relating to publications in German papers speaks of their having at least one thousand paid subscribers,'and it is said that the language of the statute in this regard determines the construction that should be applied to English newspapers, and that the only subscriptions that can be counted are paid subscriptions, and “paid subscriptions” means subscriptions paid in advance.

We think this is too strict a construction of the statute. In our judgment the statute does not mean paid subscriptions in this sense — paid in advance — I mean. It has reference to bona fide subscriptions, whether paid in advance or not, we think.

But it is said, in addition to this, that the evidence shows that it is not a paper of general circulation within the municipalty anyhow, and that of course necessitates an examination of the evidence as to what is shown in this record.

We think, taking the evidence in full, that it clearly shows this is a newspaper of opposite politics from the Blade and that it is a newspaper of general circulation in the community.

Our attention is called to the fact that the court below held that the relief must be denied because the council had passed on the question, and that that was conclusive unless bad faith was shown. We are not prepared to admit this construction of the statute, but are inclined to hold that this subject is -open to inquiry and that the council have not the right to determine, beyond investigation, whether a newspaper is, or is not, a paper of general circulation. It is a matter of fact as much open to inquiry as is the determination of the council that a given piece of property is or is not already provided with' sufficient local drainage in the matter of assessments. It has been repeatedly held that that subject may be inquired into. It may raise the presumption that the property has not local drainage, if additional local drainage is provided and an assessment made for it, but it is only a presumption. The action- of the council may raise a presumption that a newspaper is. one of general circulation, but it is only a presumption and it may be met by evidence overthrowing the presumption, if the evidence exists.

The statute requires that it shall be a newspaper of general circulation. Of course it would not do to say that the council might dispense with that provision, and find that something was a newspaper of general circulation which was not, and thereby dispense with the requirement of the statute.

We think the contention of the counsel of the city is correct in that regard, but upon a full investigation of the case, we áre thoroughly satisfied that this paper in question, the Toledo World, meets the requirements of the statute, in that it is shown by the evidence to be a newspaper of general circulation in the municipality; and this necessitates the dismissing of the petition at the plaintiff’s costs.

This action was brought here by the city solicitor at the request of a tax-payer.


text:
    AS TO NEGLIGENCE IN LITTERING SIDEWALK WITH SAND.
    Circuit Court of Hamilton County.
    Isaac Bishop v. George D. Becker.
    Decided, July 29, 1911.

      Negligence — Gleaning Exterior of Buildings by Sand-blast — Ordinary Gare — Weight of Evidence.

    It is not negligence per se to clean the exterior of a building by the sand-blast process, and a court will not presume such manifest danger arising therefrom to persons passing along the sidewalk below as would require more than ordinary care on the part of those operating the device.

      Prescott Smith, for plaintiff in error.
    W. A. Rinckhof, contra.
    The plaintiff alleged that while passing a building, the walls of which were being cleaned by the defendant by the sand blast process, he fell'upon the sidewalk and sustained serious injuries. The- fall was alleged to have been due to the littering of the sidewalk with sand, pebbles and gravel which had been thrown against the building by the process employed. The jury found for the plaintiff and judgment was given thereon.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   We have searched the record of this proceeding in vain for any evidence of negligence on the part of plaintiff in error.

One of the plaintiff’s witnesses below testified that there was a man with a broom' sweeping sand from the sidewalk.

Another testified that they tried to catch all the falling sand by means of a canvas, but that same was impossible. He said “they tried to catch it all but couldn’t.”

We are not asked to hold, nor could we, that the cleaning of the exterior of a building on a public thoroughfare hy sand-hlasting is negligence per se. It seems that only upon such doctrine could the verdict in this case be sustained.

There is no evidence to show that sand scattered upon a stone walk is dangerous to pedestrians and we can not presume such manifest danger as would require of the defendant below extraordinary care.

Ordinary care is that degree of care which is commensurate with the danger naturally and necessarily connected with the act complained of.

There is a lack of evidence showing want of such care in this case and the judgment will be reversed.