author: Shohl, J.

text:
    SELECTION OF SITES FOR SCHOOL HOUSES.
    Court of Appeals for Clinton County.
    State, ex rel. Clarke et al, v. Jefferson Tp. Rural School Dist. (Bd. of Ed.).
    Decided, May 26, 1919.

      Schools — Discretion of Board of Education in Choice of School Sites —Recital in Resolution for Bond Issue — Not a Bar to Change of Location.

    1. ' Section 7620, G. C., vests in boards of education the power to select school sites; and in the absence of abuse of discretion, fraud or collusion, the exercise of such power will not be interferred with by a reviewing court.
    2. The recital in a resolution of a board of education of a rural school district that a certain village was the most suitable locality for a school site, and the representations made by such board at the time a bond issue was submitted to the electors, can not limit the power of such board to later exercise its discretion and change the location of the site to meet the then needs of the school district.

      Smith, Rogers & Smith, for plaintiff in error.

      E. J. West and G. P. Thorpe, for defendant in error.
   Shohl, J.

Heard on error.

The relators filed an action praying for a writ of mandamus commanding the board of education to proceed at once to enter into a contract for the erection and construction of a schoolhouse at Westboro, for centralizing there the schools of said township rural district, and further praying that the board be enjoined from constructing the schoolhouse at any other point. A demurrer to the petition having been sustained, and judgment entered dismissing the ptition, the relators prosecute error to this court.

The petition alleges that in 1915 an election was held in Jefferson township, Clinton county, resulting in a majority vote in favor of centralizing the schools of the township district at Westboro, the Westboro Rural School District having previously been dismissing the petition, the relators prosecute error to this court. District.

Thereafter, the board of education duly determined that it was necessary to build, furnish and equip a new house for the centralized schools of said district. And it was the sense of the board that the most suitable, practical and desirable location for said building was in the .village of Westboro.

The board then authorized a bond issue of $36,000 which was approved at an election which was held for that purpose in accordance with Section 7625, General Code. It is charged that the board then formed a plan and conspiracy to defeat the wishes and desires of the electors and taxpayers and arbitrarily refused to proceed with the erection of the building.

In August, 1916, the board employed architects to prepare drawings, specifications and details for a schoolhouse to be erected at Westboro. Thereafter, one of the members of the board moved from the district, and, the remaining members being unable to agree upon his successor, the county commissioners of Clinton county appointed his successor. The board as then constituted "conspired” with the Board of Education of.Midland City Village School District and the County Board of Education, and in October, 1916, the County Board of Education transferred the Midland district in its entirety to the Jefferson Township (Rural School) District, and thereby destroyed the Jefferson. township district as centralized. The present township school district now uses as an excuse these facts and the claim that the necessities of the present situation require a different location for the new building. It plans to build elsewhere than at Westboro, which is the most suitable location.

Relators charge that the various acts are part of a conspiracy to perpetrate a fraud on the electors and are done arbitrarily and without justification or reason therefor.

It is plain from the foregoing that there is a radical difference of opinion between the relators and the members of the board of education. The court can not control the discretion vested in the board of education, nor substitute its judgment for that of the board upon any question it is authorized by law to determine. In the absence of abuse of discretion or fraud or collusion, the court will not restrain the board from carrying into effect its determination of any question within its discretion. Brannon v. Tiro Consolidated School District of Crawford Co. (Bd. of Ed.) 99 Ohio St., 369; Pugh Printing Co. v. Yeatman, 22 C. C., 584, and Wood Co. (Comrs.) v. Pargillis, 10 C. C., 376.

The allegations of conspiracy and fraud are mere epithets and are not averments of issuable facts. Denunciation of the motives and actions of the members of the board may show the opinion or conclusion of the pleader, but it is of no legal significance on the question of validity. State v. Ironton Gas Co., 37 Ohio St., 45, 49. No illegal act was done and no illegal purpose shown.

The board owed a duty to exercise its discretion and use its best judgment with due regard to the peculiar circumstances, wants, and interests of the district. State v. McCann, 21 Ohio St., 198, 201. It should consider the conditions and circumstances at the time of the action, and the protest or wishes of the people will not control. State v. Chester Twp. Cen. School Dist. of Clinton Co. Bd. of Ed., 1 C. C. (N. S.), 486, and Wayne Twp. Champaign Co. (Bd. of Ed.) v. Shaul, 4 N. P. (N. S.), 433, 443, 444.

Neither the resolution that it was the sense of the board that the most suitable location was at Westboro, nor representations made at the time the bond issue was authorized, ean limit the power of that body to exercise its discretion. Rogers v. Cincinnati, 10 Ohio App., 238.

We need not consider the power of the board to reconsider its action in fixing a site, but we have not overlooked the reference to that in the case of State v. Chester Twp. Gen. School Dist. of Clinton Co. (Bd. of Ed.), supra.

At the time of the action adjudicated in Moss v. Special School Dist. No. 1 of Huntsburg Twp. of Geauga Co. (Bd. of Ed.) 58 Ohio St. 354, cited by plaintiff in error, Sees 3941 and 3941a, Rev. Stat., now repealed, made it the duty of the board to purchase the site designated by the commission appointed by the probate judge. The General Code now vests in the board the power to select the site. Section 7620 G. C. and State v. Chester Twp. Gen. Sch. Dist. of Clinton Co. (Bd. of Ed.), supra. Furthermore, the designation of “Westboro” did not constitute the fixing of a site in the absence of the exact designation of the lot or land.

The facts shown by the petition did not render the duties of board ministerial. The final determination of the location of the school building is still within the discretion of the defendants.

Judgment affirmed.

Hamilton and Cushing, JJ., concur.


source: Caselaw Access Project

author: Vickery, J. Dunlap, P. J., Washburn, J.,-

license: Public Domain

text:
    CARE IN THE OPERATION OF STREET CARS.
    Court of Appeals for Cuyahoga County.
    Cleveland Ry. v. Leis.
    Decided, July, 1919.

      Municipal Corporations — Ordinances Providing Degree of Care to be Exercised by Motormen in Operating Their Cars — Declared Toid for Uncertainty — And Because Providing a Different Degree of Care from that Established by General Law.

    An ordinance of the city of Cleveland provided that motormen in charge of cars should exercise “all possible care and vigilance” on approaching any other car that is stopped for the purpose of receiving or letting off passengers. Another and similar ordinance provided that any car approaching another ear which has been stopped for any purpose, and any car operating around a curve, should do so “■with the greatest care” and under “complete control.”
    Held: That such ordinances are nof authorized by the provisions of Article XVIII, Section 3, of the Constitution of Ohio, and are unconstitutional and void in that they are indefinite, uncertain and incapable of definition, and in that they establish a new and different degree of care from that established by the general law of the land. .

      .Squire, Sanders & Dempsey, for plaintiff in error.

      Payer, Winch, Minshall é Karsh, for defendant in error.
   Vickery, J.

Heard on error.

This action is brought into this court to reverse a judgment rendered in the Common Pleas Court of Cuyahoga County against the Cleveland Railway in favor of Josephine Leis, and to accomplish this result the railway company urges in oral argument two reasons why said judgment should not be allowed to stand:

1. The verdict is not sustained by sufficient evidence.

2, Because of the admission, of certain ordinances in evidence.

From the way we view the situation these two reasons may be discussed and disposed of together, because a close reading of the record will disclose this fact: that if the ordinances had not been introduced and permitted to go to the jury the verdict could not have been sustained, or the jury might have reached a different conclusion, because there would have been no evidence in the record of any negligence of the railway company.

It seems that Josephine Leis, the plaintiff below, whom hereafter we shall call plaintiff, was a passenger on one of defendant’s cars going south on Broadway, and at Hinde street the car stopped to let off passengers at the proper or south crosswalk of Hinde street; that plaintiff apparently lived on Hinde street and had to cross both the southbound and the northbound railroad tracks in order to reach her home; that at the time the car from which she alighted stopped, automobiles going in the same direction, south on Broadway, also stopped, as under the law they are required to do, and a truck following the street car upon which she was riding stopped behind the ear' from which plaintiff alighted; that after plaintiff alighted, instead of standing until the car from which she alighted had started forward, she immediately walked back toward the end of the car (the ear being a center entrance type) to go around behind it; and that as she passed around the rear of said car she was immediately struck by a northbound car and injured, as claimed, for which she obtained a verdict.

This recital will show that she had ceased to be a passenger and the railway company owed her the duty of just ordinary care, and that she herself must exercise that same degree of care for her own safety. We think the law well settled that where a pedestrian goes around behind a car standing on the street, on to another track, he can do so only by exercising ordinary care, such as people under similar circumstances usually exercise, and this required plaintiff, in the exercise of ordinary care in the existing situation, to look around and ahead of the object she was about to pass, and at a time and in a manner where the looking would be effective, and, if it were not for the city ordinances ipti’oduced in this case, we fail to see in the record evidence of such negligence of the defendant as would Avarrant a verdict. Indeed, if the record did not show that, she herself was not free from negligence which contributed to her own injury ; hence it becomes of the utmost importance whether or not it was proper to introduce the ordinances, and, if so, whether the ordinances themselves are valid or not.

That part of one of the ordinances, so far as is germane to the question at issue, is as follows:

“Every motorman or other person or persons having the charge or control of any motor or other ear being operated upon any track of any street railroad in the city of Cleveland, shall exercise all possible care and vigilance on approaching, .any other car that is stopped for the purpose of receiving or letting off a passenger or passengers.”

The other ordinance is as follows:

“Any car approaching another car which has been stopped for any purpose, and any car operating around a curve, shall do so with the greatest care and shall be under complete control. ’ ’

The objectionable part of the first ordinance quoted is all possible care and vigilance, and, of the second, the greatest care and under complete control.

It is claimed that these ordinances create a new and different kind of care than has ever been recognized or is now recognized in the general law ‘of the land. In our opinion these ordinances are invalid, because the words are so indefinite and uncertain that no one would be able to know whether he were violating the ordinances or not.

What is meant by “all possible care and vigilance”? Ts it that degree of care that a common carrier owes to its passengers ? Nay, does it not call, for even a higher degree of care than has hitherto been recognized by the authorities ?. How should these words be defined? We have already pointed out that the plaintiff had ceased to be a passenger, and the railway company owed her only the same duty that it owed to other pedestrians on the streets, which is ordinary care, to be considered with reference to the particular circumstances of each particular case, and the duty of the plaintiff was reciprocal and she was in duty bound to exercise the same degree, i. e., ordinary care, for her own safety. The effects of the ordinance would- be to sever the reciprocal relations and duties of the parties.

Again, what is meant by 'having the car “under complete control ’ ’ ? Must it be under such control that it can be stopped in one inch, or one foot, or ten feet; or when is it.under complete control?

Again, shall operate said car “with the greatest care.” "What does that mean? It is argued that in Schell v. DuBois, 94 Ohio St., 93, an ordinance of the city of Bellaire, which provided that no one should operate an automobile in said city at a speed greater than the rate of speed that is specified in the statute, was held valid, and that if that ordinance was held valid so the one at bar must be; but- this does not follow. The Bellaire ordinance declared a rate of speed which was within the power of any one to ascertain, and it was definite and certain. It is argued again that an ordinance, said to have been much more drastic than the ordinance here, requiring one to stop a car under certain circumstances, has been sustained; but again that does not meet the objection to the ordinance in thé ease at bar, for there the requirements were easy to determine, and one would know whether'he was violating the ordinance or not, but here, in the case at bar, all is left -to conjecture. If the doctrine established in Schell v. DuBois, supra, which is in effect that whenever an ordinance or law has been violated it is negligence “per se,” and if that is the proximate cause of the injury then recovery may be had; if, as I say, this is the law, it becomes doubly important that the ordinance define in no uncertain manner the things the doing or not doing of which would result in making a party guilty of negligence, so that one may know definitely what he must do or what he must not do, and we think the sections of these ordinances are void for indefiniteness and uncertainty of definition. Indeed, the learned trial judge apparently had his troubles, and tried to qualify the ordinance by adding something which was not in the ordinance, namely, that “they are to exercise all possible care and vigilance which is to be used with the practical operation of a street car line” Where did the learned judge get this authority for this qualification? He practically used the words of courts in defining the highest degree of care in passenger cases; but this was not a passenger case. He submitted to the jury the evidence, and then undertook to qualify it. If the ordinances were proper to be in evidence, then as to whether their terms had been violated or not was for the jury, and if they should think in a case that the ear should have been under such complete control of the motorman that it could be stopped instantly, and was not, then under 94 Ohio State it was negligence per se. This would be a very dangerous doctrine to establish.

A more critical, or perhaps hypercritical, jury might have come to the conclusion that in this ease it was the duty, in the exercise of all possible care and vigilance, for the railway company to send a man on ahead to warn off pedestrians, and there would be no end to the things which a jury might find that the railway company should do to carry out the terms of the ordinance, remembering all the while that a failure in any respect would make the railway company guilty of negligence per se!

Such drastic legislation either by the State Legislature or by the city council must be scanned very closely and denied, unless clearly authorized by the law. We hold, therefore, that the rule of negligence established by this ordinance, which applies to street railroads only, is a new and different one than is established by the general law of the land, and is a violation of Article XVIII, Section 3 of the Constitution of Ohio, which provides that municipalities shall have authority to exercise all power of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws. The rule of negligence and the law governing the same are general, and the law of negligence is a general law. 20 Ruling Case Law, Sections 1 and 2 are as follows:

“ ‘Negligence’ is the word ordinarily used in common law terminology to express the foundation of civil liability for injury to person or property, when such injury is not the result of premeditation and formed intention.”
“Negligence as the term is used in the law is a recognized ground of legal liability. Every person in the conduct of his affairs is under a legal duty to act with care and forethought; and if injury results to another from his failure so to do, he may be held accountable in an action at law.”

Thus the law establishes the doctrine of negligence, and is general in its nature and surely must be regarded a part of the great body of general law, and under the home-rule amendment, whether a city had adopted a charter or not, it was not contemplated that a municipality might change the law of negligence, and I can not agree with counsel for plaintiff that general laws refers only to statutory law. Surely the great body of common law, much of which has not been codified, is as much a part of the general law of the land as that part which has been codified. Our courts are daily engaged in administering that part of our jurisprudence as a part of the general law of the land. The law of negligence has not been codified; neither has the law of partnership. Suppose the city council would undertake, under their home-rule powers, to change the rule as to what should constitute a partnership. For example, suppose council should see fit to say that “he who shares in the profits of a concern shall be liable as a partner,” going back, if you please, to the rule laid down in Waugh v. Carver, 2 H, Bl. 235, 14 R. R., 845, which formerly governed the law of partnerships. Could anybody claim that the council would have the power to overrule the law as laid down in Harvey v. Childs & Potter, 28 Ohio St., 319, which established a new and different rule, and which is now the recognized rule in partnerships all the land over? Surely not. Counsel for plaintiff assert several times in their briefs that general laws do not include rules of common law, but nowhere cite authority in' point to sustain their contention. The case of American Woodenware Mfg. Co. v. Schorling, 96 Ohio St., 305, cited in their brief, is not a case in point. Neither is Fitzgerald, v. Cleveland, 88 Ohio St., 338.

I am somewhat familiar, with most of the law laid down in the cases 'which construe and pass on the power of Cleveland to legislate and do things under its charter, for almost all of the cases when tried in the nisi prius court, where the questions were first raised, were heard by me when a nisi prius judge, and even if the words “general laws” as used in Article XVIII, Section 3 of the Constitution, should have meant statutory laws, under its whole scope and power as finally adopted the home-rule amendment is limited to local matters.

There were two different parties on this proposition in the constitutional convention, the radicals and the conservatives. The radicals by means of the charter city were in favor of establishing a small state within the state, giving it absolute control ; the other, in favor of giving it control over purely local matters. The debates in the constitutional convention on pages 1433 to 1498 and 1860 to 1869 throw much light upon the scope .that it was intended to confér upon cities under the home-rule amendment.

Judge Roekel, a member of the constitutional convention from Clark County, in a recent article, has thrown some light on what was meant by the convention in adopting the home-rule amendment. After reciting the provisions relating to cities under the Constitution of 1851 he makes this statement:

“It was early agreed that the widest possible powers should be reserved for the municipality, that'could consistently be done. Of course it should not have a power that was not properly within the domain of the municipality.
“It was thought that the words ‘local self-government’ would include generally the character of the power reserved to the municipality, but it was at once seen that all matters pertaining to ‘local self-government’ could not rest alone in the municipality, without destroying the sovereignty of the state.
“The original draft stated the exception to be that ‘all such charters shall be subject to the general laws of the state, except in “municipal affairs.” ’ This language was no doubt adopted from the Constitution of the state of California. An examination, however, of the construction placed upon this exception was so diverse among the Californian courts, that it was decided not to use it, and instead there was substituted the words ‘affecting the welfare of the state as a whole.’ This was a distinct recognition of the general power of the state.
“The original Cleveland draft gave to municipalities the ‘power to enact and enforce within their limits such police, sanitary and other regulations as are not in conflict with general laws.’ This likewise was thought too broad in that the police power was without limit, other than it must be such as could be enforced within the limits of the corporation. The word ‘local’ was inserted before the word ‘police’ and when this was done it was decided that the phrase ‘affecting the welfare of the state as a whole’ was superfluous, and it was stricken out, as it was considered as being included in the words ‘general laws.’ This was done in the convention at the suggestion of a ‘Home Ruler.’
“The committee felt, no doubt, that it could not in a more definite way draw the line between the powers that the city and the state might respectively have, than was done. Where home rule had been tried in other states, the courts were compelled to construe and define what was included in the organic law, and this would necessarily follow here on the proposed amendment.
“The Supreme Court, in the several decisions made, have, we think, carried into effect the intention of the framers. Johnson, J., in Billings v. Cleveland Ry., 92 Ohio St., 478, 485, well states the relation of a self-chartered municipality when he says:
“ ‘There is no “imperiam in imperio,” except in the sense that by the approval of the state the city exercises part of the sovereign power under the limitations imposed, and may thereby, subject to such limitations, exercise all the powers of local self-government. * * * The charter becomes the organic law of the municipality as such local powers are concerned. But the authority of the state is supreme over the municipality and its citizens as to every matter and every relationship not embraced in the field of local self-government.’ ”

It will be seen, then, that it was not thought for a moment that to confer local self-government upon a city, either chartered or unchartered, would give it the power to alter by ordinance a well-established rule of negligence and substitute therefor, so far as the street railroad alone is concerned, a different rule both of care and of negligence, for they are resultant terms.

We therefore are of the opinion that it was wrong to admit these ordinances for the reason that the same are indefinite and uncertain, incapable of definition, and establish a new and different degree of care, which was beyond the power of the city council to do.

The ordinances are, therefore, invalid, so far- as these provisions are concerned, and the ease must, therefore, be reversed and remanded to the court of common pleas for further trial.

Judgment reversed, and cause remanded.

Dunlap, P. J.,

concurring.

I concur in this judgment of reversal because I believe the council of the city of Cleveland was never authorized by the Constitution of Ohio to .pass these ordinances. The provision of the constitution, that “municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws, ’ ’ does not, in my opinion, authorize the passage of an ordinance which substitutes for well-settled principles of the common law, of wide and universal application, a different rule of conduct, upon the theory that it is an exercise of local self-government, or is a local police, sanitary or other similar regulation.

Washburn, J.,-

concurring.

I concur in the reversal of the judgment in this case on the ground that though conceding under the decisions of the supreme court that the municipality under its home-rule charter had the right in the exercise of its police power to pass the ordinances in question, still such ordinances being general and indefinite in their wording, not requiring any definite and particular act to be done for the safety of the public, and their effect being only to change the common-law rule of negligence in a matter not purely local, are not admissible in evidence as having the force and effect of a law passed by the legislature. Such ordinances, which on their face attempt only to change in general terms the common law, are not to be measured by the same standard as a statute of the state; they should require definite and certain things to be done in order to have the force and effect of an act of the legislature and be admissible as a predicate of an act of negligence.


author: Cushing, J.

text:
    VERDICT OF¿MURDER IN SECOND DEGREE FOR POISONING.
    Court of Appeals for Butler County.
    Cowdrey v. State of Ohio.
    Decided, May 26, 1919.

      Homicide — Where Effected hy the Use of Poison — Accused may he Found Guilty of Murder in the Second Degree.

    1. In a prosecution for murder in the first degree, where the crime was committed by means of poison, the jury may return a verdict of murder in the second degree under the provisions of Section 13692, General Code.
    2. Where the jury in the exercise of its discretion returns a verdict of a lesser degree than that charged in the indictment, the defendant can not be heard to complain.

      Andrews & Andrews, for plaintiff in error.

      Ben A. Bicldey, Prosecuting Attorney, for defendant in error.
   Cushing, J.

Heard on error.

Plaintiff in error, William Harrison Cowdrey, was indicted for murder in the first degree, the crime having been committed by means of poison. By its verdict, the jury found him not guilty of murder in the first degree but guilty of murder in the second degree. After conviction, and before sentence, he filed a motion to be discharged from custody. This motion was overruled. No bill of exceptions was taken. The ease comes up on the verdict, the sentence, and the motion to discharge. Pie prosecutes error, claiming that as a matter of law there could not be a verdict of second degree murder in a poison case.

Murder in the first degree is defined and the pleadings and practice are governed by Sections 12400,12401 and 12402 General Code. Murder in the second degree is governed by Section 12403 General Code viz:

“Whoever purposely aud maliciously kills another, except in the manner, described in the next three preceding sections, is guilty of murder in the second degree. ’ ’

When murder has been committed by means of poison, it seems logically incorrect to find the offender guilty of murder in the second degree. Section 13692, General Code, provides that when an indictment charges an offense, including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree thereof. These statutory provisions relating to crimes must be construed together. The language of Section 13692 General Code is clear. It vests the jury with a discretion that a court may not control.

“The jury have the undoubted power to fix the crime in the second degree when it ought, under the law and facts, to be fixed in the first. ‘We need not speculate why it was so provided. It is sufficient that it was so written, and we can not change, alter, or depart from it.’ ” State v. Lindsey, 19 Nev., 47, 52 (5 Pac. 822; 3 Am. St., 716). See also, Lindsey v. State, 69 Ohio 215, 233, 235 (69 N. E., 126).

This conclusion is supported by the weight of authority. See State v. Phinney, 13 Idaho, 307 (89 Pac. 634; 12 L.R.A.(N.S.), 935; 12 Ann. Cas. 1079).

In the absence of a bill of exceptions this court will assume that the trial established a state of facts that would support the verdict.and judgment. If the verdict had been “guilty of murder in the first degree, the same presumption would prevail.

“In such a case, the reviewing court will presume that the judgment was founded on proper proof.” Sidener v. Hawes, 37 Ohio St., 532, and Caldwell F. F. Co. v. Peck-Williamson, H. & V. Co., 27 O. C. C., 665 (6 N. S., 629, 634).

When a jury in the exercise of its discretion returns a verdict of a lesser degree than that charged in the indictment, the prisoner will not be heard to complain.

The judgment of conviction is therefore affirmed.

Shohl and Hamilton, JJ., concur.


author: Gorman, J.

text:
    PROOF AS TO KNOWLEDGE THAT GOODS RECEIVED WERE STOLEN.
    Court of Appeals for Hamilton County.
    Morris v. The State of Ohio.
    Decided, May 21, 1917.

      Criminal Law — Guilty Knowledge a Necessary Element — In Prosecution for Receiving Stolen Goods — Competency of Evidence of Previous Acts of the Same Chaaeter.

    In cases involving fraud in tlie receiving of stolen goods, scienter is a necessary element to be established in order to fasten guilt upon the accused, and in such cases evidence of previous transactions which necessarily involve guilty knowledge by the defendant with reference to the transaction in question is admissible.

      Schmuck & Jacobs, for plaintiff in error.

      Simon Boss, Jr., Assistant Prosecuting Attorney, for defendant in error.
   Gorman, J.

Heard on error.

Plaintiff in error, Frank Morris, was jointly indicted with one Sam Cumins, and Julius Khourt, on two counts, one for grand larceny in which he was charged with having stolen and carried away forty-three pairs of shoes of the value of $145.85, personal property of the Baltimore & Ohio Southwestern Railroad Company; and in the other he was charged with having received these shoes as stolen goods, knowing them to have been stolen.

Plaintiff in error elected to be tried separately, and upon being tried was found guilty of grand larceny in that the value of the goods stolen was assessed at more than thirty-five dollars. He was then given an indeterminate sentence in the Ohio penitentiary.

It is claimed that there was error in the trial of the cause below in this: first, that the evidence fails to establish that the shoes were stolen. An examination of the bill of exceptions and the evidence adduced at the trial fully satisfies us that the jury were warranted in finding the plaintiff in error guilty as charged in the first count of the indictment. The verdict is not manifestly against the weight of the evidence, but, on the contrary, the accused having failed to take the stand and testify or explain how he came to be in possession of the goods that were shown to have been stolen, we think the jury had abundance of evidence upon which to base the verdict.

Secondly, it is claimed that the court erred in permitting one of the accused, Sam Cummins, who was jointly indicted with Frank Morris, to testify as to transactions between himself and Morris relating to former thefts in which Morris had sold stolen goods to said Cummins. Under the count of the indictment charging Morris with having received stolen goods it was proper to show scienter or knowledge on the part of Morris that the goods he had in his possession were stolen. It is a well known rule of law that in cases involving fraud in receiving stolen goods, scienter is a necesary element to be established in order to fasten guilt upon the accused. In the ease of Coblentz v. State, 84 Ohio St., 235, this rule was laid down:

‘ ‘ On the trial under such an indictment evidence of previous transactions which necesarily involve guilty knowledge by the defendant with reference to the transaction in question is admissible, but as to transactions occurring subsequent to that on which the indictment is based evidence is not admissible.”

In the case of Tarbox v. State, 38 Ohio St., 581, the court said at page 584:

“The decisions are uniform to the effect that, where scienter is an element of the crime charged, previous offenses, necessarily involving such guilty knowledge, are admissible.”

In State v. Reineke, 89 Ohio St., 390, the rule laid down in the cases above cited is approved and followed,

It appears, therefore, that the state was well within its rights when it undertook to show and did show prior transactions of Morris involving the sale of stolen goods and having in his possession stolen goods.

Upon a review of the whole case we find no error in the record prejudicial to the plaintiff in error, and the judgment of the court of common pleas is affirmed.

Judgment affirmed.

Jones, P. J., and Hamilton, J., concur.


author: Houck, J.

text:
    EXCESSIVE FINE FOR A FIRST OFFENSE.
    Court of Appeals for Lacking County.
    Michael Shonberg v. The State of Ohio.
    Decided, March Term, 1919.

      Regulation of Dealers in Second-hand Articles — Responsible Compliance with the Statutory Requirement having Reference to the Tagging of Articles Purchased — Discretion in the Matter of Sentence.

    1. The statutory provisions relating to second-hand stores and junk shops, requiring that persons making purchases of the class of articles therein referred to shall cause “a tag to be attached to such article in some visible or convenient place” etc., is not rendered without effect and void by reason of the fact that in the case of old iron for instance, it would be impracticable or perhaps physically impossible to attach a tag to each and every piece, the attaching of a tag to each pile or lot purchased being a sufficient compliance with the statute where such a difficulty is presented.
    2. A fine of $200 for a first offense in such a case is grossly excessive, and a reviewing court, while affirming the judgment, will send the case back with the suggestion that justice be done in the premises.

      L. C. Bussell, for plaintiff in error.

      Kibler <& Kibler, contra.
   Houck, J.

This was a criminal action brought under favor of Section 6371 of the General Code. The plaintiff in error, who was the defendant below, was charged with violating a part of this section of the statute. He was a junk dealer engaged in buying and selling iron, and this section of the statute makes it a criminal offense not to tag iron so purchased. He was arrested for a violation of said statute and was taken before a magistrate. Upon trial he was convicted and fined $20Q.

It seems that there is a second ease pending against him, or it was pending, which was to follow this case, and to be governed by the decision in this one, wherein the same fine was imposed, $200.

We have examined this record, and we have read the testimony. It is claimed on behalf of counsel for the plaintiff in error, the defendant below, that it is impossible to comply with this statute; that is, that it is physically impossible to tag all pieces of iron and, therefore, that the statute should be declared null and void.

We do not think this contention is sound, because we feel that a reasonable compliance with the statute could be had. That is, that it would not be necessary to tag each article, but to put the articles in a bunch, and one tag would be sufficient. But passing that question, which, to us, is not the serious one in the case. While we hold that the statute is constitutional, and is not void, and that it should be enforced, yet we are unable to understand why a penalty of $200 was imposed for a first offense. Speaking from the record, there is nothing which would indicate that the accused had ever been arrested before for a violation of this statute or any other statute; and, as the court is advised, we know of no other arrest that has ever been made, or a conviction under this particular part of the statute; and assuming that the accused was a man of reasonably good standing in the community, the court is unanimous in its judgment that the fine is excessive ; not only is it excessive, but it is very excessive. We will affirm this judgment and remand it back to the magistrate, and suggest to counsel for the plaintiff in error to file a motion asking that said fine be reduced to a reasonable sum. The court is not indicating to the magistrate what the amount shall be, but as it now stands it is unreasonable and should be materially reduced. With these suggestions, the judgment will be affirmed, and the case remanded to the magistrate in the hope that counsel will get together and assist in bringing about what clearly appears, to this court, is but simple justice in the premises.

Shields, J., and Patterson, JV, concur.


author: Richards, J.

text:
    INFERENCE AS TO AUTHORITY OF CHAUFFEUR TO OPERATE AUTOMOBILE.
    Court of Appeals for Lucas County.
    Rosenberg v. Reynolds.
    Decided, December 16, 1918.

      Master and Servant — Presumption that Chauffeur was Acting Within the Scope of His Employment at Time of the Accident.

    ■Where the evidence discloses that at the time of plaintiffs injury by an automobile it was the property of the defendant and was being operated by his chauffeur employed to operate the same, an inference arises, in the absence of evidence to the contrary, that the chauffeur was, at the time of the injury, acting within the scope of his employment and about his employer’s business.

      F. M. Sala and Frank A. Garabin, for plaintiff in error.

      Marshall cO Fraser and Rathbun Fuller, for defendant in error.
   Richards, J.

Heard on error.

On June 13,1917, the plaintiff, Evelin Rosenberg, a child about four years of age, was struck by the defendant’s automobile, which was going north on Linwood avenue, at about the intersection of Beacon street, in the city of Toledo, and so injured that it became necessary to amputate one of her limbs. The defendant was not in the machine, but it was being operated by his chauffeur, Peter A. Donley, and was occupied also by a nephew of the chauffeur and by a twelve-year-old grandson of the defendant. At the conclusion of all the evidence the trial judge directed a verdict for the defendant, on the ground that the chauffeur at the time of the injury was not acting within the scope of his employment. The only question submitted for our consideration is whether it appears as a matter of law that the chauffeur was not acting within the line of his employment, but had abandoned the same and was on a mission solely of his own, at the time plaintiff was injured.

The defendant was called for cross-examination and from his testimony it appears that he is the owner of the automobile in question; that he resides at 2040 Collingwood avenue, and that on the morning in question Peter A Donley, who had been employed for several years as his chauffeur, called at the residence with the defendant’s automobile to take him to the bank located at the corner of Jefferson avenue and Summit street, .a trip which he was accustomed to make on the morning of nearly every business day. The grandson of Mr. Reynolds was also in the car and they arrived at the bank shortly after 8 a. m. Mr. Reynolds on arriving at the bank alighted from the car, and testifies that he directed the chauffeur to go to defendant’s garage and from there to telephone the defendant’s daughter, Mrs. Harris, and find out what time she wanted the automobile to go and see a circus parade which was to be given that forenoon. He also testifies that his chauffeur had the right to take the grandson to the home of his mother or to the garage. The residence of Mr. Reynolds is situated something more than a mile northwesterly from the bank, and the garage is two or three blocks south of the residence, while Mrs. Harris, the daughter of Mr. Reynolds and the mother of the boy, resides on Parkwood avenue, three or four blocks northwesterly from the Reynolds home. From the place where the accident occurred on Linwood avenue to the residence of Mrs. Harris is approximately three-quarters of a mile, north of west.

The testimony of the chauffeur is to the effect that he drove from the bank to the garage, when he telephoned to Mrs Harris, and, learning that she would not want the automobile until 9:45 a. m., drove with the grandson to the armory in order to help his nephew, who had joined the army, select a suit of kahki, and that he stayed only a few minutes at the armory, taking, his nephew in the machine, and together they proceeded northwesterly to the place where the plaintiff was struck on Linwood avenue, The armory is situated north of the bank where Mr. Reynolds had alighted and almost directly east of the garage.

Mrs. Harris, who was called as a witness by the defendant says that the arrangement for her to use the automobile was made between her and her father over the telephone before he left home than morning, and that she does not remember any communication over the telephone that day with the chauffeur. The twelve-year-old grandson of the defendant, who remained with the chauffeur all the time was not called as a witness. If the chauffeur had been intending to drive from the bank to the residence of Mrs. Harris without going to the garage he would have deviated very little from a direct course if he had driven by way of the armory and Linwood avenue.

The law is, of course, well settled that the defendant is liable for any negligence of his chauffeur committed within the scope of his employment and while engaged in his master’s business. There can be no uncertainty as to the law; the only difficulty arises in its application and as was stated in the ease of the Lima Ry. v. Little, 67 Ohio St. 91 (65 N. E. 861), the test of the master’s liability is not whether the act was done during the existence of the servant’s employment but whether it was done by the servant while acting for the master and in the prosecution of his business. If the record in this ease contains evidence that the chauffeur was so engaged at the time of the injury to the plaintiff and the injury was caused by his negligence then the case should have been submitted to the jury for its determination.

We have here the admission by the defendant that he was the owner of the automobile and that it was being driven by his chauffeur, regularly employed for that purpose, and that he had been using the machine on the morning in question while operated by his chauffeur. Whether an inference arises from these admitted facts that the chauffeur was at the time of the injury acting within the scope of his employment is a question upon which the decisions are not in accord, and it would not be possible to reconcile them. Our attention has not been called to any decision of the supreme court of Ohio directly determining this question, but in the White Oak Coal Co. v. Rivoux, 88 Ohio St., 18, a closely allied question was involved and the question of liability was considered. In that case tbe man who operated tbe machine was a bookkeeper or cashier and he had no duties whatever to perform in regard to the automobile, the operation of which was entrusted to other persons, and it was held that a prima facie case was not made by establishing merely the facts that the automobile was owned by the defendant and was negligently operated by his employe, unless it further appeared that he was driving the automobile with the authority of the owner. A careful reading of the opinion of the court in that case clearly shows that this conclusion was reached because the employe had no duties to perform with reference to the automobile, and the court in the course of the opinion cite with approval various cases where it was held that a prima facie case, would be made under the circumstances stated if the employe was the regular chauffeur of the defendant, having duties to perform in the operation of the automobile. It appears, therefore, that while the direct question was not decided in that case, yet the only reason why the defendant was exonerated was that no inference of the employe’s being within the scope of his employment arose when it appeared that he had no duties to perform regarding the automobile.

Numerous decisions could be cited, where, when it appears that the defendant was the owner of the automobile and that it was being operated by his chauffeur, regularly employed for that purpose, it has been held that it will be presumed that the chauffeur was acting within the scope of his authority and about his employer’s business; and if he is not so operating the machine that fact would be one peculiarly within the knowledge of the employer. The reasons for so holding have been often stated by the courts, but we have found no instance where they have been stated with more clearness than in Kahn v. Home Telephone & Telegraph Co., 152 Pac., 240. In the opinion these reasons are stated as follows:

“It has been frequently held by the courts that where an automobile is operated by a person employed for that purpose, it will be presumed that he is acting within the scope of his authority and about his employer’s business. If he is not so operating it, this is a fact peculiarly within the knowledge of the employer, and the burden is upon him to overthrow this presumption by evidence of which the law presumes he is in possession; Huddy, Automobiles (3 ed.), Sec. 281; Long v. Nute, 100 S. W., 511; Moon v. Matthews, 76 Atl., 219; Ludberg v. Barghoorn, 131 Pac., 1165; Purdy v. Sherman, 133 Pac., 440; Birch v. Abercrombie, 133 Pac., 1020; Langworthy v. Owens, 133 N. W., 867. By the terms, ‘raises a presumption,’ ‘ will be presumed,’ and other similar language used in the decisions above cited, it is evident it is not meant that the circumstances of the use or possession of an automobile by an employe of the owner raises any presumption of law that the person in charge of it is using it upon the business of the master, but rather that such facts are sufficient to justify a jury in inferring that such is the case; in other words, the fact that a person is in possession of the automobile of another, and the additional fact that he is shown to have been employed by the owner to drive and care for it, taken together, for a chain of circumstantial evidence from which the jury is authorized to infer the further fact that the employee is using the machine upon the employer’s business. This, being the ease, the owner is called upon to rebut the evidence of these circumstances by showing, by testimony satisfactory to the jury, that the real fact is otherwise; that notwithstanding the testimony introduced by plaintiff presents those circumstances which usually justify the inference that the machine is being used for his business and by his authority, the actual fact is that the employe is not so using the machine, but is taking it in connection with his own business and in performance of errands not connected with his employment.”

Precisely the same holding was piade in Stewart v. Baruch, 103 App. Div. (N. Y.) 577. See also Schreiber v. Matlack, 90 Misc. (N. Y.) 667; Healy v. Bernstein, 168 N. Y. Supp. 44; Shamp v. Lambert, 142 Mo. App. 567, 575, and Glassman v. Harry, 182 Mo. App., 304.

The inference to be drawn from proof of ownership of the ear and employment of the driver is stated in Babbitt on the Law Applied to Motor Vehicles (2 ed.), Section 829.

It is said in Cunningham v. Castle, 127 App. Div. (N.Y.) 580, in a case similar to the one at bar, that the testimony of the chauffeur that he was not using the machine in his master’s business was that of an interested witness and that his credibility was for the jury. See also Ferris v. Sterling, 214 N. Y., 249 (108 N. E., 406.)

We do not find it necessary to go to the extent announced in the two cases last cited, for the reason that in the case at bar different minds might arrive at different conclusions from circumstances disclosed in the evidence, which would of itself require a submission of the case to the jury. The fact that Mrs. Harris does not remember being called on the telephone by the chauffeur might in the judgment of the jury raise an inference that he had not in fact gone to the garage, but was proceeding direct to the residence of Mrs. Harris by way of the armory and Linwood avenue. The further fact is significant that the twelve-year-old grandson, who was in a position to know all the facts, was not called by the defendant as a witness, nor was his absence from the witness stand explained. Under such circumstances it was open to the jury to draw an unfavorable inference by reason of his unexplained absence.

In the ease at bar the admission by the defendant' on cross-examination that he was the owner of the car and that the chauffeur was in his employment raised an inference that the chauffeur was at the time of the injury acting within the scope of his employment. In determining the weight to be given this presumption the jury would naturally consider the testimony of the chauffeur, in which he says that he was on a mission purely personal to himself; the testimony of the defendant that he had directed the chauffeur to go to the garage and call Mrs. Harris on the telephone, but that the chauffeur had permission to take the grandson to his own home or to the garage; the unexplained absence of the .grandson, who apparently had full knowledge of all the facts; the failure of Mrs. 'Harris to recall any telephone conversation that day with the chauffeur; and the doubt suggested as to any necessity of telephoning Mrs. Harris if the chauffeur was to take her that morning to see the circus parade if the arrangement had already been made between the defendant and his'daughter, Mrs. Harris. The inference arising that the chauffeur was acting within the scope of his employment stands as an item of evidence, and whether it was overthrown by-the other evidence in the ease or whether the other evidence was of equal weight or countervailing force, was a matter to be determined by the jury. Klunk v. Hocking Valley Ry., 74 Ohio St., 125.

The conclusion indicated is not in conflict with the holding in Rawson v. Olds Motor Works, 20 C. C. (N.S.) 182; nor with the holding in Stewart v. Whitford, 22 C. C. (N.S.), 585. The latter decision was by this court, and in that case it clearly appeared that all parties agreed that the chauffeur had but one purpose in making the deviation which he did, and that was to take his friends to their destination, which was in a direction opposite from that he had been told to go, and no inference could be drawn from the facts not in dispute except one, and there was, therefore, nothing to submit to a jury. The judgment will be reversed and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

Chittenden and Kinkade, JJ., concur.


author: Shobl, J.

text:
    ¡RECOVERY FOR INJURY FROM MOB VIOLENCE.
    Court of Appeals for Butler County.
    Butler Co. (Comrs.) v. Beaty.
    Decided May 19, 1919.

      What Constitutes a Mob — Lynching Defined — Liability for Mob Violence Not Limited to Persons in Custody for Crime — Belief of the Mayor in his Inability to Cope With the Situation not a Prerequisite to Recovery from the County.

    1. A collection of people assembled for an unlawful purpose and intending to do damage to workmen returning from their work at a factory where a strike is in progress, constitutes a “mob,” and an act of violence upon tlie body of one of sucii workmen is a “lynching,” within the meaning of See. 6278, G. C.
    2. The liability of a county for damages resulting from mob violence is not limited to one who is apprehended for committing a crime; but a right of action inures to the benefit of one who is not sd held in custody.
    3. The right to recover damages for injuries from mob violence is not dependent upon the attempted exercise of “correctional power” by a mob, but may be predicated upon acts of violence committed by a collection of people assembled for an unlawful purpose and intending to do damage or injury to anyone.
    4. In an action for damages for mob violence it is not error to refuse to charge the jury that the county is not liable until such a degree of disorder has developed that the mayor becomes satisfied he can no longer cope with the situation and calls upon the sheriff to aid in the suppression of such violence.

      Isaac C. Baker and Ben. A. Bickley, for plaintiff in error.

      Andrews & Andrews and W. G. Shepherd, for defendant in error.
   Shobl, J.

Heard on error.

In October, 1915, theré was a strike at tbe Hamilton Foundry & Machine Co. Defendant in error while returning from his work there was attacked by a group of striking workmen. He brought suit against the county commissioners for the sum of $5,000, under Part Second, Title II, Chapter 20, General Code, relating to mobs. A verdict and judgment in the sum of $230.63 was rendered in his favor, and the commissioners prosecute error to this court. An examination of the evidence supports the conclusion that there was a collection of people assembled for an unlawful purpose, intending to do damage to the workmen returning from the foundry and machine company. They, therefore, constituted a “mob” within the statutory definition set forth in Section 6278, General Code. They performed an act of violence upon the body of Martin Beaty, which constituted a “lynching” as defined in the same section.

The “Mob Act” is constitutional, Champaign Co. (Comrs.) v. Church, 62 Ohio St., 318, and must be liberally construed, Phillips Sheet & Tin Plate Co. v. Griffith, 98 Ohio St. 73. It is contended- by plaintiff in error that the statute in question relates only to acts of violence by a mob against one apprehended for committing a crime, and can not be applied to acts of violence against persons not so held in custody. Special charge No. 7, which the court refused to give, is based on this contention. Under Section 6278 a mob is either a collection of people assembled for an unlawful purpose and intending to do damage or injury' to any one, or a collection of people pretending to exercise “correctional power” over other persons by violence and without authority of law. An examination of the statute discloses that a mob may be constituted in either of two ways, only one of which requires the pretended exercise of correctional power. There is no justification, therefore, in limiting the liability imposed by statute solely to cases of mobs of the second character to the exclusion of a mob comprised as -defined in the first part of the section. No authority is cited by the court in the opinion of Gray v. Gibson, 12 N.P.(N.S.), 673, to support the opposite conclusion. At common law counties or municipal corporations are immune from liability for failing to preserve the public peace in the absence of a statute. (28 Cyc., 1295). The policy of imposing liability upon a civil subdivision of government has long been recognized and enforced. In Chicago v. Sturges, 222 U. S., 313, at page 323, the court says:

“The policy of imposing liability upon a civil subdivision of government exercising delegated police power is familiar. to every student of the common law. We find it recognized in the beginning of the police system of Angle-Saxon people. Thus, ‘ The Hundred, ’ a very early form of civil subdivision, was held answerable for robberies committed within the division. By a series of statutes, beginning possibly in 1285, in the statutes of Winchester, 13 Edw. 1 c. 1, coming on down to the 27th Elizabeth, c. 13, the Riot Act of George I (1 Geo. I, St. 2) and Act of 8 George II, c. 16, we may find a continuous recognition of the principle that a civil subdivision entrusted with the duty of protecting property in its midst and with police power to discharge the function, may be made answerable not only for negligence affirmatively shown, but absolutely as not having afforded a protection adequate to the obligation. Statutes of a similar character have been enacted by several of the states and held valid exertions of the police power. Darlington v. Mayor, 31 N. Y., 164; Fauvia v. New Orleans, 20 La. Ann., 410; Allegheny County v. Gibson, 90 Pa. St., 397. The imposition of absolute liability upon the community when property, is destroyed through the violence of a mob is not therefore, an unusual police regulation. Neither is it arbitrary, as not resting upon reasonable grounds of policy. Such a regulation has a tendency to deter the lawless, since the sufferer must be compensated by a tax burden which will fall upon all property, including that of the evil doers as members of the community. It is likewise calculated to stimulate the exertions of the indifferent and the law-abiding to avoid the falling of a burden which they must share with the lawless. In that it directly operates on and affects public opinion, it tends strongly to the upholding of the empire of the law.”

See also Wells Fargo & Co. v. Jersey City, 218 Fed., 699, and 4 Dillon, Municipal Corporations (5 ed), Section 1636. The cases cited in the note in Dillon show that some of the statutes are applicable to injuries as well as damage to property. The statute under consideration was originally passed in 92 O. L., 136, entitled, “An act for the suppression of mob violence.” It is therefore, of the same character as the statute referred to in the foregoing authorities, the purpose of which is to punish the inhabitants of a community for permitting riots, and to incite them to suppress and prevent the same by making it a matter of interest to the taxpayers to give their moral support to the enforcement of law and order. See note to Pittsburg, C., C. & L. Ry. v. Chicago, 242 Ill., 178. Liability under such a statute has been upheld where the person lynched was not a prisoner. Brown v. Orangeburg County, 55 S. C., 45 (32 S. E., 764). The court did not err in refusing to give special charge No. 7.

Complaint is made of the refusal of the court to give special charges to the effect that the defendants were not liable until such a degree of disorder has developed that the mayor becomes satisfied that he can no longer cope with the situation and calls upon the sheriff to aid in the suppression of said violence. The statute by its terms does not require such a request. If there is a lynching the statute imposes a liability on the county. There is no basis in the language of the statute for the requirement that the mayor should call upon the sheriff for aid. Where the language of the statute is plain and admits of no more than one meaning, there is no duty on the court to interpret it. Its meaning must in the first instance be sought in the language is which the act is framed, and if that is plain, and if the law is constitutional, the sole function of the courts is to enforce it according to its terms. Elmwood Place v. Schanzle, 91 Ohio. St., 354, 357; Slingluff v. Weaver, 66 Ohio St., 621; Woodbury & Co. v. Berry, 18 Ohio St., 456; Caminetti v. United States, 242 U. S., 470, 485, and United States v. Detroit First National Bank, 234 U. S., 245, 258; United States v. Lexington Mill & Elevator Co., 232 U. S., 399, and Lake County v. Rollins, 130 U. S., 662, 670, 671.

When we consider the express statement of the court in Phillips Sheet & Tin Plate Co. v. Griffith, supra, that the act is to be liberally construed, there is no warrant for the restriction contended for. The court did not err in refusing the special charges requested.

Judgment affirmed.

Hamilton and Cushing, JJ., concur.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, October 21, 1919.


author: Ferneding, J.

text:
    AUTHORITY TO ALTER THE LOCATION OF A LIVING STREAM
    Court of Appeals for Greene County.
    Harshman v. Board of Commissioners of Greene County.

    Decided, November 9, 1917.

      County Commissioners — 'Without Jurisdiction to Divide a Living Stream Into Two Channels — Ditch Proceedings — Remedy of the Land Oumer.

    1. The authority of county commissioners does not comprehend the power to divide the waters of a living stream into two channels. When an alteration in the channel of a living stream is made under Section 6443, General Code, provision should be made for tributaries and laterals emptying into the new channel at convenient points near the place or places where such tributaries or laterals empty into the original stream.
    2. Where the board of county commissioners is without jurisdiction and the want of jurisdiction does not appear on the face of the ditch proceedings, the remedy of the landowner affected is by way of an original action in equity for injunction.

      Messrs. Hagan <& Hagan; Mr. Charles S. Darlington and Mr. Marcus Shoivp, for plaintiff in error.

      Mr. W. L. Miller and Mr. H. D. Smith, for defendant in error.

       Motion to require the -Court of Appeals to certify its record in this case overruled by the -Supreme Court, March 5, 1918.

   Ferneding, J.

Heard on Error.

Plaintiff, John F. Harshman, is the owner of certain farm lands in Beaver Creek township, Greene county, through which Beaver Creek, a living stream flows in a southeastwarly direction. Another living stream called Gray’s Run also enters plaintiff’s land, and flows into Beaver Creek near the northern end of plaintiff’s land.

It appears that, in the year 1913, upon petition of certain landowners, the board of county commissioners of Greene county ordered the improvement of Beaver Creek by straightening, widening, deepening and changing the same through and for several miles above and below plaintiff’s lands, The plaintiff was assessed a large amount for said improvement, which has been constructed upon the line of the original channel of Beaver Creek through plaintiff’s lands, but the same has not been fully completed below plaintiff’s farm. Subsequently, on November 11, 1916, upon petition of landowners above plaintiff’s lands, the commissioners ordered the construction of an improvement by an alteration to be made in the channel of Beaver Creek. This contemplated a new channel, beginning a short distance above the outlet of Gray’s Run in plaintiff’s land, running thence roughly parallel to the old channel of Beaver Creek, and at no point more than 250 feet distant therefrom. The stream was to extend through plaintiff’s lands, on the south side thereof, thence over the land of G-eorge M. Shank, and finally to rejoin said former channel at a point about one-half mile from the beginning of said new or altered channel. It also appears that the board of county commissioners in the construction of said improvement intend to fill up the old channel immediately above Gray’s Run in plaintiff’s land and thereby divert the upper waters of Beaver Creek into the new channel. This would leave the waters from Gray's Run to continue in the old channel through plaintiff’s land. The result would be to perpetuate two separate and distinct channels in close proximity to each other for more than 1,000 feet over plaintiff’s land, and thus impose a substantially new burden upon him.

It is contended upon behalf of plaintiff that the county commissioners have no jurisdiction under the statute to provide for the proposed alteration of Beaver Creek by the establishment of said additional channel.

We have reached the conclusion, after a careful consideration of the statute and the decisions, that the authority of the county commissioners does not comprehend the power to divide the waters of a living stream like Beaver Creek into two separate channels. When an alteration in the channel of a living stream is made, under Section 6443, General Code, provision should be made for tributaries and laterals emptying into the new channel at a convenient point near the place or places where such tributaries or laterals empty into the original stream.

We are of the opinion that the statute does not justify the carrying of the tributaries in a separate channel as contemplated in the present improvement. The principle announced in the case of Commissioners of Greene County v. Harbine, 74 Ohio St., 318, justifies us in applying a strict construction of Section 6443, General Code, as applied to living streams.

The defendant county commissioners in their answer allege that the plaintiff in the original ditch proceedings appealed to the probate court upon the question of compensation and damages; also upon the question of the location of the proposed altertion and the practicability of the route; and that the sum of $1,625 was allowed the plaintiff for compensation and damages. The other questions were decided in favor of the commissioners. The commissioners further allege that 'no appeal or error was prosecuted from said judgment of the probate court, and that in consequence thereof the plaintiff has had his remedy and is estopped from the present proceedings.

We think this is the most serious question in the case. We have reached the conclusion that were the board of county commissioners without jurisdiction, and the want of jurisdiction not appearing upon the face of the ditch proceedings, the remedy of the landowner affected is by way of an original action in equity for injunction. We are therefore of the opinion that the plaintiff was entitled to an injunction against the construction of said alteration or new channel of Beaver Creek over and across his said lands.

Decree accordingly.

Kunkle and Allread, JJ., concur.


author: By the Court.

text:
    CONFIRMATION OF JUDICIAL SALE.
    Court of Appeals for Cuyahoga County.
    Lake Shore Saw Mill & Lumber Co. v. Cleveland Realization Co. et al.
    Decided, May, 1919.

      Judicial Sales — Discretion of Trial Judge as to Confirmation — Subject to Review, but not to Reversal, Unless.

    1. The question whether or not a sale of real estate by the sheriff in a foreclosure proceeding should be confirmed rests in the sound discretion of the court, and an order of confirmation will be reversed only upon proof of abuse of such discretion.
    2. An abuse of discretion is not shown by the mere fact that one or more of the reviewing judges would have exercised such discretion in a manner different from that of the trial court.

      Young, Stocker <& Fenner, for plaintiff in error.

      A. Lewenthal and W. S. Hannon, for defendants in error.
   By the Court.

Heard on error.

This is a proceeding in error to reverse the common pleas court ..for refusing to confirm a sale of real estate made by the sheriff in a foreclosure proceedings, where it is conceded that the proceedings were regular and in all respects according to law.

The question is suggested that this is not such a judgment or final order as is subject to review by this court, but that question was not argued and we do not find it necessary to consider it.

We take it to be settled that the question of whether or not a sale should be confirmed rests in the sound discretion of the trial court, and, if subject to review,.the order of the lower court can be reversed only when the record discloses that the trial court has abused its discretion. It is a wise public policy which vests such discretion in the trial court.

An abuse of such discretion is not shown by the mere fact that one or more of the judges of this court would have exercised the discretion differently if sitting as a trial court.

We have carefully examined this matter and are unable to say that the trial court abused its discretion.

The judgment will, therefore, be affirmed.

Judgment affirmed.

Dunlap, Washburn and Vickery, JJ., concur.


text:
    SERVICE OF COPY ON OWNER.
    Court of Appeals for Cuyahoga County.
    Lake Erie Lumber & Supply Co. v. Marshall et al.
    Decided, July 7, 1919.

      Mechanics Liens — Service on Owner of Carbon Copy of Affidavit Sufficient.

    The sending of a carbon copy of the affidavit to obtain a lien, which copy is in all respects a duplicate of the original excepting only that it lacks the name of the 'affiant at the end of the affidavit and the name of the notary at the end of the jurat, accompanied by a letter to the owner stating that the same is a copy of the effidavit filed, all of which is done within the thirty day period provided for in Section 8315 General Code, is a sufficient compliance with the provisions of said section requiring service on the owner or his agent of a copy thereof.

      F. V. Hartman, for plaintiff.

      Maurer, Bolton, Wilson c§ McGiffin, for defendants.
   By the Court.

In this cause, which is here heard upon appeal, we hold that the sending of a carbon copy of the affidavit to obtain a lien, which copy is in all respects a duplicate of the original excepting only that it lacks the name of the affiant at the end of the affidavit and the name of the notary at the end of the jurat, accompanied by a letter to the owner stating that the same is a copy of the affidavit filed, all of which is done within the thirty day period provided for in Section 8315, General Code, is a sufficient compliance with the provisions of said section requiring service on the owner or his agent of a copy thereof. The lien of the Lake Erie Lumber & Supply Company will, therefore, be sustained.

In reference to the claim of the R. L. Quiesser Company, the validity of its lien depends upon a question of fact. "Without going into an analysis of the evidence, it will be sufficient to say that the court finds that the evidence preponderates in favor of the claim of said company, and we hold that the said R. L. Quiesser Company has a valid lien.

A journal entry may be drawn sustaining these two liens and the claims of all the cross-petitioners in the court below, just as was done by the common pleas court.

Judgment accordingly.

Dunlap, Washburn and Vickery, JJ., concur.


author: Metcalee, J.

text:
    RIGHT OF LATERAL SUPPORT IN UNDERGROUND MINING!
    Court of Appeals for Jefferson County.
    United States Coal Co. v. Wayne Coal Co.
    Decided June 22, 1919.

      Mines and Mining — Injury to Lateral Support of Underground Mine 5y Stripping May Toe Enjoined.

    The plaintiff and defendant are both engaged in mining coal, and are respectively the owners of adjoining properties derived from a common grantor. The plaintiff employs the underground method of mining, while the defendant uses the process known as “stripping,” and in conducting its operations has removed the surface over its portion of the vein of coal up to a part of the plaintiff’s property line.

      Held: That the plaintiff has the right to the lateral support of the surface contiguous to its own premises, and the further removal of such surface will be enjoined where it is shown that such removal materially affects the lateral support of the plaintiff and thereby endangers its' mining operations.

      A. C. Lewis, L. C. Kerr and Henderson, Quail, Biddall & Morgan, for plaintiff.

      W. B. Alian and Dio Rogers, contra.
   Metcalee, J.

Heard on appeal.

The plaintiff in this case seeks to enjoin the defendant from conducting certain mining operations which plaintiff claims work an injury to its property.

The plaintiff is engaged in mining coal by the process known as “underground mining;” the defendant is engaged in mining coal, but by a process entirely different from that used by the plaintiff company, known as the “stripping process.”

In 1900 one James Hubler and his wife executed and delivered to Robert E. Rhodes and Morris A. Bradley a warranty deed for all minable coal in. what i§ known g,s the No. 8 or Pitts-burg Vein of coal underlying their farm in Wayne township, Jefferson county, Ohio.

The superficial area of the amount of coal thus conveyed is included in what is known as the Van Atta Survey, and contains about ninety-seven acres of land.

The deed also granted to Rhodes and Bradley an uninterrupted right of entry upon the lands of the grantors, at such points and in such manner as might be deemed necessary to conduct mining operations, convey supplies to the mine and carry away coal therefrom, and also contained a waiver of any damages arising from the occupancy of the premises by the grantees and the use thereof for mining.

It also conveyed the right of mining and removing through the premises of the grantors, other than those granted by deed, coal which might be mined from other lands owned by the grantees.

In 1902 Rhodes and Bradley sold and conveyed to the plaintiff all of their interest in the lands in question, and the plaintiff is still the owner thereof, but at present is not conducting any mining operations thereon. e

The Wayne Coal Co., the defendant, afterwards became the owner of other lands owned by the original grantors of the plaintiff, the Hublers, and is conducting mining operations thereon by what is known as the “stripping process.”

The method employed by the defendant is to remove the surface over the vein of coal with a steam shovel, thereby exposing the vein and permitting the use of machinery in taking out the coal; and in conducting their operations they have stripped the surface and removed the coal from portions of their premises to the survey line of the plaintiff’s property.

The defendant has acquired the ownership of a considerable acreage of coal adjoining the premises of the plaintiff, with the right to mine such coal by removing the surface.

It is the claim of the plaintiff that by use of the “stripping process, ’ ’ as employed by the defendant company, the defendant is encroaching upon the rights of the plaintiff, in removing the lateral support from the plaintiff’s part of the vein of coal so as to greatly endanger the nse of the plaintiff’s premises in conducting mining operations thereon.

The defendant has mined up to the line of the so-called Van Atta Survey for a distance of several hundred feet.

The first question here presented is whether or not the operation of mining by the “stripping process,” so-called, up to the line of the plaintiff’s property, is such a removal of, and weakening of, the lateral support over plaintiff’s coal as to endanger and render impracticable the mining of coal from plaintiff’s premises by the method of mining employed by plaintiff.

The question thus presented is a novel question and so far as we are informed is a question of first inception in the courts of Ohio, and we find no decisions from other states involving the same question. We are left, therefore, to determine the question upon general principles, and upon the authorities governing the questions of the right to lateral support, where the questions at issue were similar or analogous to those of the instant case.

The mining of coal by the “stripping process” has only come into practice within the past few years and could not have been in the minds of the parties when the deed was executed from the Hublers to Rhodes and Bradley, for no such process was known at that time. It does not, however, follow that the defendant has not a right to use that process or any other new or improved method of mining by machinery or otherwise, which has come into use.

The parties here stand in the same position as the parties to the original deed. The rights of each are neither greater nor less than the rights of the parties to that conveyance. The idea that the surface of the land outside of that conveyed to the plaintiff woidd be removed to a depth of thirty feet or more could not have been contemplated by the parties.

The grantees of the deed supposed that they were purchasing all of the coal underlying the grantor’s premises, which, by the processes of mining then known, was considered minable coal, the balance of the coal being considered unminable because of the shallowness of the surface above it,

It seems to us fairly shown by the evidence that such removal of the surface up to the line of the plaintiff’s property is, in effect, a removal of the lateral support from the plaintiff’s property in conducting mining operations, which, if carried out to the extent of removing the surface up to the plaintiff’s land around its entire property, would be absolutely destructive of the plaintiff’s right, so that the extent to which the defendant carries on its operation up to the plaintiff’s line leaves it only a question of degree as to the injury done to the plaintiff.

The removal for a very small distance along the line of the plaintiff’s property might not.be injurious to the plaintiff at all for the reason that the remaining surface upon the same side would be sufficient to furnish the necessary support, but the defendant in this case has removed that support for a distance of several hundred feet, and contemplates, as we understand from the evidence, removing it for a much greater distance. We have no doubt from the evidence in this case that such removal would be a material injury to the plaintiff.

It is urged on the part of the defendant, that, as the plaintiff company is not now using its property for mining purposes, any injury which might result from the defendant’s operation does not give rise to a present cause of action, but would give rise only to a cause of action in the future when the damage actually occurs. We think this position is untenable.

If the plaintiff is not now exercising its right to use its premises for mining purposes, it has purchased the premises for that very purpose; and can it be said that it is not a present injury if the acts of the defendant will effectually prevent the use of the plaintiff’s premises in the future, or so weaken its lateral supports as to endanger the use of the premises for that purpose ?

We think the plaintiff is entitled to the relief asked for, and in this judgment we think we are sustained by many well-considered cases.

1 High, Injunction (4 ed.), Sec. 753, says:

“The right to lateral support is regarded as an incident to the ownership of land, and its infringement has been considered as a nuisance which equity may enjoin. Thus, the removal and excavation of earth upon adjacent- premises in such manner as to endanger the stability of complainant’s soil and fences, by removing their lateral support, will be enjoined.”

And Sec. 667 of the same work says:

“"While diligence in the assertion of his rights is indispensable on the part of one who seeks the aid of equity for the prevention of waste, the utmost degree of promptitude is exacted in 'cases of waste in mines, owing to the peculiar nature of the property. ’ ’

The author further illustrates these principles in Secs. 850 and 852 of the same work.

In Burgner v. Humphrey, 41 Ohio St., 340, it is held that, where the owner of the land conveys by lease the underlying coal on his premises, with the right to remove the same, the lessee will not be entitled to remove the whole of the coal so as to endanger the support to the surface. On page 352 the court say:

“It seems to be well settled, that when one owning the whole fee, grants the mineral, reserving the surface to himself his grantees will be entitled only to so much of the minerals, as he can get without injury to the superincumbent soil, unless, the language of the instrument clearly imports that it was the intention of the grantor to part with the right to subjacent support. * * * The owner has a natural right to the use of his land, in the situation in which it was placed by nature, and if the surface of the land and the minerals beneath belong to different owners, the owner of the surface is entitled to have it supported by the underlying mineral strata, and, an action may be maintained against the owner of the minerals, for the damages sustained by the subsidence. Each owner must so use his own as not to injure the property of the other. ’ ’

If the owner of the minerals has no right to injuriously affect the rights of the owner of the surface, the converse of the proposition must be equally true, that the owner of the surface can not destroy it to the extent of seriously injuring and endangering the rights of the owner of the minerals.-

The defendant stands in the shoes of its grantor, the common grantor of itself and the plaintiff, and where a continuance of its acts will work a serious injury to the property of the plaintiff we think plaintiff is entitled to have such acts restrained. Elliot v. N. E. Ry., 10 H. L. C., 334, 11 Eng. Rep. Re., 1055; Caledonia Ry. v. Sprot, 1 Pater (Ss. App.), 633, 17 Eng. Ru. Cas., 696; Keating v. Cincinnati, 38 Ohio St., 141; Joyce v. Barron, 67 Ohio St., 264; Murray v. Pannaci, 64 N. J. Ep., 147, 154 (53 Atl., 595) ; Simon v. Nance, 45 Tex. Civ. App., 480 (100 S. W., 1038); Belden v. Franklin, 8 C.C.(N.S.), 159; Catron v. South Butte Mining Co., 181 Fed., 941; Seitz v. Coal Valley Mining Co., 149 Ill. App., 85; Big Six Development Co. v. Mitchell, 138 Fed., 279 (1 L. R. A. [N. S.], 332); and Collins v. Gleason Coal Co., 140 Ia., 114, (115 N. W., 497; 118 N. W., 36).

The defendant has an undoubted right to use the “stripping process” in conducting its mining operations and should only be enjoined from removing the surface so near to the plaintiff’s property line as to materially affect the plaintiff’s lateral support, and, while the fixing of the line up to which the defendant may mine must of necessity be somewhat arbitrary, we are of the opinion that under the evidence thirty-five feet will be sufficient to afford the plaintiff protection.

Injunction granted accordingly.

Pollock and Farr, JJ., concur.


author: Farr, J. Johnson, J., Swan, J.,

text:
    APPEAL WITH REFERENCE TO A TOWNSHIP BOUNDARY LINE.
    Court of Appeals for Guernsey County.
    In the Matter of the Establishment of the Boundary Line Between Wills Township and Center Township in Guernsey County, Ohio.
    Decided, November 20, 1919.

      Disputed Boundary Line Between Townships — Bight of Appeal to the Court of Common Pleas from Finding or Award of County Commissioners.

    Where application is made to county commissioners to establish a disputed boundary line between two townships and a finding is made by the commissioners as provided in Section 3248, G. C., establishing such line, the right of appeal lies from their finding to the court of common pleas of such county under favor of Section 2461, G. C.

      Fred L. Rosemond for plaintiff.

      Robert T. Soott for defendant.
   Farr, J.

This is a proceeding .in error, prosecuted here to reverse the judgment of the court of common pleas of this county.

The action in the court below was an appeal from the finding or award of the county commissioners to whom application was made to establish the boundary line between Wills and Center townships, this county. A hearing was had as provided by statute and a finding made by the county commissioners from which an appeal was sought to be perfected to the court of common pleas of Guernsey county where a motion was made to dismiss for want of jurisdiction, which motion was sustained by the court of common pleas and the cause is here upon the question of the right of appeal from the finding of the county commissioners. Among the related sections of the General Code is Section 3248 which provides that:

“When a boundary line between townships is in dispute the commissioners of the county in which the townships are situated, upon application of the trustees of one of such townships, and upon notice in writing to the trustees of such civil township or Townships, and on thirty days public notice printed in a newspaper published within the county, shall establish such boundary line, and make a record thereof in a book kept for that purpose.”

The foregoing relates to the duties of county commissioners in case application be made to establish a disputed boundary line between townships; however, it is not the duty of the commissioners in this regard which is of primary importance here, but the right of appeal from their finding. If such right obtains in favor of either party it is under favor of Section 2461 General Code, which provides as follows:

‘ ‘ 2461. A person aggrieved by the decision of the county commissioners in any case, may appeal within fifteen days thereafter, i j the next court of common pleas, notifying the commissioners of such appeal at least ten days before the time of trial. The notice shall be in writing, and delivered personally to the commissioners, or left with the auditor of the county. At its next session, the court shall hear and determine the appeal, which decision shall be final.”

This section has been the subject of considerable discussion, and there are numerous adjudications under it beginning with the early judicial history of the state, a number of which it is not necessary to discuss in determining the issue here. A case well upon the point and fairly decisive of the issue in the instant case is Commissioners of Belmont County v. Zeigelhofer, 38 O. S., 523.

This case arose over a contract awarded by the county commissioners for tearing down and rebuilding a protecting wall on a county road. After the completion of the wall, and the re'fusal of payment of the balance claimed to be due by the contractor, suit was brought before a justice of the peace to recover the same. From a judgment against the commissioners they appealed to the court of commoii pleas, where a motion to dismiss was made for want of jurisdiction for the reason that plaintiff’s exclusive remedy was an appeal from the action of the commissioners in refusing to allow and order the claim paid. Section 18 of an act establishing boards of county commissioners and prescribing their duties (1 S.&C., 247), which was then in force, is almost identical with' above Section 2461, General Code. It was held as follows:

“Where a claim against a county, which must be allowed by the commissioners before it can be paid, is founded exclusively on a statute, the remedy by appeal provided by Section 18 of “an act establishing boards of county commissioners and prescribing their powers and duties (1 S. & C., 247) is exclusive; but where such a claim is founded upon a contract, which the commissioners are authorized to make, and they refuse to perform such contract, or disallow the claim, the remedy by appeal and the summary proceedings provided for by said section, is cumulative merely, and the claimant is entitled to have his action thereon against the county by due course of law, in any court of competent jurisdiction.”

The foregoing, therefore, fixes the right of appeal in such cases.

Johnson, J.,

in passing upon the above case reviews practically every important related case beginning with Commissioners v. Robb (Wright, 48), similar as to facts to the Belmont county case, and it was not held that an appeal was an exclusive remedy; the same case is found in 5, Ohio, 491; Paine v. Commissioners (Wright, 471) is discussed and a like conclusion reached; likewise Shepherd v. Commissioners of Darke County, 8 O. S., 354, where it was sought to enforce a claim by a county recorder against the commissioners for making a new general index to the records of the county, and for which it was provided that recorders should receive such compensation as the commissioners shall deem reasonable and just.

Swan, J.,

in the opinion at page 357 observes as follows:

“Whenever the board of commissioners are authorized to allow or reject claims against the county, the party aggrieved may appeal. ’ ’

But what was actually held is that:

“Where a claim against the county is of such a nature that but for the statute no right of action at common law would exist on the claim, the remedy prescribed by the statute must be pursued, and no cumulative remedy exists.”

The principle established in Shepherd’s case was re-affirmed in State ex rel Gerke v. Commissioners, 26 O. S., 364, which applied to a claim for attorney’s services in prosecuting suits for the county treasurer for the collection of taxes.

And in his summary of the foregoing Johnson, J. in Commissioners v. Zeigelhofer, at page 528, declares the rule of construction in such cases to be as follows:

“These cases rest upon the well settled rule of construction, and where, by statute, a liability is created, and a specific remedy is given, it is exclusive, but when a specific remedy is given for an existing right of action for which there is a remedy by due course of law, the new remedy is merely cumualtive, unless it clearly appears to be the intention of the Legislature, that it be to the exclusion of the existing remedy. Commissioners v. Bank, 32 O. S., 194, 201; Darling v. Peck, 15 Ohio 65; State v. Orr, 16 O. S., 523; Sedgwick on Statute Law, 341-345; Hardcastle on Rules of Con., 163-169.”

And the foregoing fairly determines the issue here. In the cases considered it will be observed that when it was a question of liability on contract the right of appeal was held to be cumulative in character.

In the instant case the duties of the board of commissioners are defined by statute. Impliedly they might call, and in the instant case they did summon and hear, numerous witnesses. They determined the question at issue as a tribunal, although it is urged that they performed merely administrative duties; that they did not render a judgment and had no authority or jurisdiction to do so; that if they had, their act would have been coram non judice. However, they made a finding upon the issue, and it would be drawing a very fine distinction, under the provisions of above Section 2461, G. C., to hold that there was no right of appeal; that the finding of the board is final and conclusive, especially in so important a matter as establishing a boundary line between townships, wherein, if an error be made, it must remain so for all time. Such was not the legislative intent.

It is urged, however, that there are numerous adjudications under the above Section 2461, holding that there was no right of appeal. An examination of these eases discloses that they are practically all different as to facts and in Kendig v. Commissioners, 82 O. S., 315 at page 322, Price, J., declares the rule to be that:

“No appeal is given from the decision of the trustees or commissioners to a court in which the owner may have his compensation determined by a jury.”

And in connection with his discussion of Section 896 R. S., now Section 2461, General Code, the case of Hendershot v. State, 44 O. S., 209, is also discussed which is somewhat helpful.

It was also properly observed in the Belmont county case at page 529:

“When such a contract is made within the scope of the authority conferred, the obligations arising thereform, are to be determined by common law principles, in the absence of statutory provisions to the contrary. The right is not founded on a statute, but on a contract made by a quasi corporation.”

But such is not the ease here, nor is there a jury issue. The jurisdiction of the commissioners as provided in this statute was invoked by the application of the township trustees of the township applying for the establishment of the boundary line, and the board having made its finding the statute prescribing the right of appeal as well as the right of action in the board of county commissioners, appeal lies from the award of the commissioners to the court of common pleas.

Therefore, the judgment of the court below is reversed, and exception noted.

Metcalfe, P. J., and Pollock, J., concur.