author: MARVIN, J.

text:
    LOST INSTRUMENTS.
    [Cuyahoga (8th) Circuit Court,
    February 23, 1903.]
    Hale, Marvin and Winch, JJ.
    Matilda Slipman v. Charles Telschow et al.
    1. Prooe or Execution Essentiar to Estabrish Rost Deed.
    To establish a lost deed by parol the evidence must clearly and satisfactorily show the existence and execution of the supposed deed, and evidence that a deed of certain property was drawn by a certain abstract company and that the persons alleged to have been grantees therein had in their possession at various times thereafter a deed describing the same property, without any evidence that such a deed was executed by the alleged grantors or uro-'erly acknowledged and attested, is not sufficient.
    Appear by defendants.
    P. J. Bradley, for plaintiff.
    W. T. Clark, for defendant.
   MARVIN, J.

This case comes into this court by appeal from the judgment of the court of common pleas.

The petition sets out that the plaintiff is the owner of a certain piece of real estate in this city, and describes the same, -with the averment that the defendants claim some interest therein, but that neither of them has any interest therein, and the prayer is that her title to said land may be quieted.

To this petition the defendant, Charles Telschow, answers, denying that the plaintiff is the owner of the whole of said real estate, but avers that he is the owner of an undivided one-half thereof.

The defendant, Wilhelmina Telschow, answers that she is the wife of the defendant, Charles Telschow, and as such has' an interest in said estate to the extent of her inchoate right to dower in an undivided one-half thereof, which she says is owned by the said Charles.

Whatever rights the plaintiff has in this property came to her by descent from her former husband, Fred Slipman, who died intestate and without issue in July, 1898. In 1892 the property in question, was purchased jointly by the said Fred Slipman and the defendant, Charles Telschow, and a deed of the same was executed and delivered to them for the property.

There is no dispute here that the plaintiff is the only heir of her deceased husband, and as such is the owner of an undivided one-half of these premises. The whole dispute is as to the remaining one-half. The claim on the part of the plaintiff is that in 1894, on June 7, a warranty deed of this undivided one-half, which theretofore was the property of the defendant, Charles Telschow, was executed by the said Charles and his wife, Wilhelmina, and delivered to the said Fred Slipman. This deed was not recorded and is not produced in court. Its absence is explained by the plaintiff by saying that immediately after its delivery to her husband he brought it to their home and exhibited it to her; that she complained that her name nowhere appeared in the deed; that her husband became angry and tore the deed, if not entirely into two parts, very nearly so, and then left the room; that she with court-plaster fastened the two parts together, went to the room of her mother, which was in the same house, and there exhibited it to her mother, Mrs. Blaha, her sister, Emma Koss, and her brother, John Blaha; that they made some examination of it, but such examination was very hasty, as she heard her husband come into the hallway adjoining the room in which she was exhibiting the deed, and she folded the deed, put it into her clothing and thereafter placed it in a drawer in the room where she and her husband lived. She says that two or three years thereafter her husband took the deed from this drawer and said that he placed it in the safe of the defendant, Charles Telschow, and that she has never seen it since. At the time when she says this deed was delivered to her husband the relations between herself and her husband were strained, and some two years thereafter she brought a suit for divorce against him and he went to live with the defendants, the defendant, Wilhelmina Telschow, being his 'mother, and it is at or about the time of this separation that she says the deed was taken from their home. After a separation of about five months she and her husband went to living together and so continued up to the time of his death. Both of the defendants emphatically and unqualifiedly deny that any deed from them to Fred Slipman was ever executed by them. They deny that they ever signed any such deed.

. On the part of the plaintiff one Harry Van Heining was called as a witness. He testified that in June, 1894, he was in the employ of Cozad, Belz & Bates Abstract Company of the city of Cleveland; that he was at the time a notary public; that a part of the business of said company was the drawing and acknowledgment of deeds; that by a custom of the company, when a deed was to be drawn, if the deed to the parties about to make the new deed was brought into the office of this company, a minute or memorandum was made on such deed, indicating the parties to the new deed and the consideration to be expressed in said new deed, and that a number was given to the transaction, which number was minuted on the old deed; that then in a minute book kept by the company an entry was made with a corresponding number, which entry indicated what was to be done with the’ deed on which this number was written, and then a mark was made upon such memorandum indicating when the transaction, so far as their office was concerned, was completed. The plaintiff then offered in evidence the deed made to Telschow and Slipman in 1892, and this being exhibited to the witness, he stated that a number, to-wit, 45,115, which appears in pencil on the filing side of said deed, was made by him; that this indicated that same memoranda in reference to this deed would be found in the books of the company under a corresponding number. He further testified that a memorandum found on the opposite side of this deed when folded, reading, “Charles and AVilhelmina Telschow to Fred Slipman, $580,” was made by him. He then produced a memorandum book, or a book of the abstract company, entitled on the back, “Orders,” and exhibited to the court under the number 45,115 a memorandum which reads: “45,115. Ordered by Chas. T., draw D. Charles and AVilhelmina Telschow to Fred Slip-man, for $580 for an. undivided one-half interest. To be done Friday, 11 A. M. Delivered 6 — 8—94.” He says that he has no recollection whatever of making the memorandum on the deed nor of making the memorandum in the book. He says that certain marks drawn with a blue pencil across the memorandum in the book indicate the completion of the transaction.

The defendants objected to the introduction of the memorandum on the deed and also the memorandum in the book, and the same was received by the court over such objection, the court reserving, however, the question of whether it should be treated as evidence in the case. The conclusion to which the court has arrived makes it immaterial whether this evidence be considered or not, and hence the question is not here decided. All that is indicated by these memoranda may be true to the extent of showing that this old deed was taken to the abstract office by somebody; that a deed of the undivided one-half from Charles and A'Vilhelmina Telschow to Fred Slipman was ordered and was made out and paid for. It does not necessarily follow that _ such deed was ever signed or even ordered by Charles or AVilhelmina Telschow or either of them, and if it was so signed by either of them, it does not follow that the same was ever properly executed. The evidence as to the execution is that the plaintiff says she saw the names of the defendants on the deed shown her by her husband at the proper place for them to sign if they were making such deed. She says there were some names on the left-hand side of the deed nearly opposite these names of the defendants, at the place where witnesses would sign if the deed were properly executed, and she says there was some kind of a seal on the lower left-hand corner of the deed shown to her. She says, too, that this deed shown to her was a warranty deed, and that it described the undivided one-half of the property described in the petition. She does not know whether there was the name of any notary signed to the acknowledgment or not, nor does she know whether the names of the defendants were written by them or somebody else, nor does she know whose names appeared at the proper place for witnesses to sign. Her mother, Mrs. Blaha, remembers less of the deed than does the plaintiff. John Blaha, her brother, remembers practically what she does about its appearance. Her sister, Emma Koss, was somewhat familiar with the execution of deeds, being employed in a business office where deeds are frequently made out. She is not certain about the description, but says that the names of the grantors appeared at the proper place for grantors to sign. There were names written at the place where witnesses should sign, and the certificate of acknowledgment was filled out and it seemed to be all right. She has no recollection of who the witnesses were, nor does she remember that the name of any officer or person was written at the place where the officer taking the acknowledgment should write his name.

There is evidence tending to show that since the death of Fred Slipman the rents upon all this property have been paid to the plaintiff, but she is the administratrix of the estate of her deceased husband. These parties have been in litigation about this property almost ever since Fred Slipman’s death, so that the inference is not very strong that this was a recognition on the part of the defendants of her ownership of the property.

Evidence was offered on the part of the defendants tending to show that during the lifetime of Fred Slipman semi-annual settlements were made between him and the defendant, Charles Telschow, in reference to this property, but none of this testimony is very important as bearing upon the issue here. Certainly the case of the plaintiff must be determined upon the question of whether the writing which her husband exhibited to her on June, 1894, was a deed duly executed, attested and acknowledged by Charles and Wilhelmina Telschow to Fred Slipman for this undivided one-half of the property. If all that the plaintiff says is true, though she makes a strong probability that such deed was executed, we do not think that she makes a case under the law as announced by our own Supreme Court in the case of Gillmore v. Fitzgerald, 26 Ohio St. 171. The syllabus reads:

“Where parol evidence is relied on to prove a deed alleged to have been lost, such evidence must clearly and satisfactorily show the existence and execution of the supposed deed, and so much of its contents as will enable the court to determine the character of the instrument.”

The evidence here does not come up to the requirement laid down in this rule. She and other members of her family ,itiay have seen what appeared to be a deed, with the names of these defendants upon it at the place where, if they were executing the same, they would have written their names, and yet they may not have written their names there. If they wrote their names, we don’t know that their signing was witnessed by anybody, nor do we know that there was any certificate of acknowledgment. There are facts in the case which cannot be explained except upon the theory that there was testimony produced upon the trial which was not true. We do not undertake to say who gave the false testimony, but only that if all the testimony introduced on the part of the plaintiff was true, the execution of this deed is not evidenced “clearly and satisfactorily,” as is required under the decision of the Supreme Court referred to.

The result is that the petition of the plaintiff is dismissed at her costs.


source: Caselaw Access Project

author: HULL, J.

license: Public Domain

text:
    MUNICIPAL CORPORATIONS — WORKHOUSE.
    [Lucas (6th) Circuit Court,
    February 23, 1903.]
    Haynes, Parker and Hull, JJ.
    Fred Rose v. Toledo and Fred Ritter.
    1. Governmental Powers of City — Workhouse.
    A city, in constructing and maintaining a workhouse, acts not in its corporate, but in its governmental capacity, and hence is not liable to a prisoner in such workhouse for injuries received by him through the wrongful' acts of the superintendent thereof.
    2. Inherent Powers of Officers of Workhouse to Make Reasonable Rules for Discipline.
    Officers of prisons have an inherent power to prescribe reasonable rules and regulations and to enforce obedience to them by the infliction of appropriate punishments for their infraction. Hence, the superintendent of a workhouse is not liable to a prisoner for injuries sustained by the latter as a result of punishment by confinement in a small and damp dungeon, where it does not appear that such punishment was cruel or excessive or was inflicted maliciously or with intent to injure.
    Heard on Error.
    Peter Emslie, for plaintiff in error,
    M. R. Brailey, city solicitor, for defendant in error.
   HULL, J.

A petition in error was filed in this court to reverse the judgment of the court of common pleas. The plaintiff in error was the plaintiff be-> low and filed a petition against the defendants for damages claimed to have been sustained by reason of his treatment in the workhouse of the city of Toledo, damages being claimed against both the city and the’ other defendant, Fred Ritter, who was the superintendent of the workhouse at the time of the grievances complained of. A general demurrer was filed to the petition in the court below, and was sustained. The plaintiff, not desiring to plead further, the petition was dismissed at plaintiff’s cost.

The question here is, whether the petition states a cause of action against either of the defendants ? The petition is as follows:

“Plaintiff says that the defendant, the city of Toledo, is a corporation duly incorporated under the laws of Ohio, and a city of the third class and first grade, and that defendant, Frederick Ritter, is superintendent of the Toledo workhouse in the city of Toledo, Lucas county, Ohio.
“Plaintiff, Fred Rose, further states that the city of Toledo, Ohio, did on or about — exact date to plaintiff unknown — -build and construct a building and enclosed a parcel of land between Swan creek and the canal within the corporate limits of the city of Toledo, and called it the Toledo Workhouse.
“That within said enclosure and buildings there was constructed and still remains a dungeon.
“That.said dungeon was constructed and is maintained by said city of Toledo in the condition existing at the time hereinafter mentioned.
“That at the time hereinafter mentioned the city of Toledo, the said defendant, knew, or by reasonable diligence might have known, of the dangerous, unhealthy, unsanitary and damp condition of the said dungeon, as aforesaid.
“Knew that said dungeon was constructed and made so narrow and small that a person confined therein could not lie down.
“That the said city of Toledo, 'defendant, by some agreement with the commissioners of Lucas county, Ohio, agree to keep prisoners convicted of misdemeanor within said county of Lucas within said workhouse, at labor, during their confinement therein.
“Plaintiff further says that on April IS, 1901, he was adjudged guilty of a misdemeanor in the police court in the said city of Toledo, and by the judge thereof ordered committed to said workhouse for four months, and in pursuance of said order and judgment of said court he was duly committed to said workhouse, kept and maintained by the said defendant, the city of Toledo, and by • superintendent, Frederick Ritter, the said defendant.
“That on or about the - days of 1901 (exact date to plaintiff unknown) while serving time for said offense in said workhouse, he was, without due process of law and without reasonable cause, committed to said dungeon by order of Frederick Ritter, said defendant, and there confined for forty-eight hours at one time without nourishment; • that within a few days thereafter he was again committed to said dungeon as aforesaid, and remained therein forty-eight hours without food; that after being released and within ten days thereafter, he was again committed to said dungeon and compelled to remain there continuously for 144 hours.
“That said dungeon was in an unhealthy and unsanitary condition; that by reason of the premises herein alleged plaintiff became, and was sick; that ever since he was so confined in said dungeon, and on account of the damp, unsanitary and unnatural position he was compelled to occupy, and by reason of the infective and dangerous condition of said dungeon and dampness therein, he was injured and caused great bodily pain, causing rheumatism and other internal injuries.
“That he was deprived of his rights in the premises; that said defendant, Fred Ritter, knew, or by reasonable diligence might have known, of the aforesaid condition of said dungeon, and in total disregard of his duties to this plaintiff did order his commitment to said dungeon, as aforesaid.
“That the injuries then and there received are of a permanent nature, from which he has suffered and still suffers great bodily pain and mental anguish.
“That ever since the said grievances as heretofore stated, plaintiff has been, and still is, unable to perform manual labor.
“That by reason thereof in the premises plaintiff has been damaged in the sum of $5,000.
“Wherefore plaintiff prays judgment for $5,000 and his costs.” (Signed and sworn to in due form.)

The action was sought to be maintained both against -the city of Toledo and Ritter, the superintendent. Their liability or want of liability, as the case may be, rests upon somewhat different grounds, so that they will be considered separately. It appears from the allegations of the petition and the matters that are not alleged in the petition (for it is presumed that all things were done lawfully unless the contrary is shown), that the city of Toledo, in the exercise of its powers under the law, constructed and maintained a workhouse for the imprisonment and correction of violators of law (violators of the city ordinances, probably, primarily) and that it had an arrangement under which persons who were convicted of misdemeanors (violators of the state laws), might be committed to said workhouse and imprisoned therein instead of being imprisoned in the county jail. The plaintiff was duly convicted of some offense against the laws of the state, of a misdemeanor, as he alleges, in the police court, and was duly and legally sentenced to imprisonment for four months in the Toledo workhouse. He makes no complaint of the legality of the proceedings up to this time. He was, then, at the time of the grievances of which he complains, a lawful prisoner who had been duly committed to the workhouse and confined therein.

According to the petition, there was in the workhouse a “dungeon,” which, we may presume, was used for the punishment by imprisonment therein of the inmates of the workhouse for violation of the rules of the workhouse, the workhouse being in its nature a prison and standing substantially on the same footing as other prisons. This dungeon, he alleges, at the time of his commitment thereto was in an unsanitary and unhealthy condition; that it was damp and otherwise unhealthy, and that on account of his confinement therein for the periods mentioned by him, his health was injured.

The question arises, first, as to whether the city of Toledo is liable in this action; whether the facts in the petition are sufficient to constitute a liability against the city ?

It is not for every wrong that is committed by an agent or employe of the city that the city is liable in damages to a private citizen. Some of the duties of the city are of a public character — of a governmental character — the city exercising the powers of government, or of sovereignty, as it is said; and while exercising such governmental powers, as a general rule, the city is not liable for the wrongful acts of its agents and employes in carrying out or in performing such powers. The city, in the performance of such duties, acts, not for the individual, but for the public, acts in a governmental capacity for the benefit of the people. The workhouse is constructed and maintained not for the benefit and pleasure of those who may be so unfortunate as to be committed to it and confined therein, but it is constructed and maintained under the laws of the state for a public purpose, as one of the institutions of the government for the imprisonment of wrongdoers and they are confined therein for correction and punishment — as the penitentiary at Columbus is constructed and maintained for similar purposes. These principles are sustained by numerous authorities In Western College v. Cleveland, 12 Ohio St. 375, the court say in the syllabus:

“The act to incorporate the city of Cleveland, passed in 1836, provided, among other things, in reference to the city council — ‘it, shall be their duty to regulate the police of the city, preserve the peace, prevent disturbances and disorderly assemblages:’ Held, that the duty intended was that, properly appertaining to an administrative and legislative-body, acting in the government of the city — the making regulations, by-laws and ordinances for the purposes specified, to be enforced by the appointment of officers; and that neither on general principles, nor from the effect of that enactment is the city of Cleveland responsible for the destruction of property by a riotous assemblage of persons, or for the neglect of the officers in not preserving the peace, and preventing such destruction.”

On page 377, in the opinion, delivered by Judge Gholson, he says:

“It is obvious that there is a distinction between those powers delegated to municipal corporations to preserve the peace and protect persons and property, whether to be exercised by legislation or the appointment of proper officers, and those powers and privileges which are to be exercised for the improvement of the territory comprised within the limits of the cotporation, and its adaptation to the purposes of residence or business. As to the first, the municipal corporation represents the state — discharging duties incumbent on the state; as to the second, the municipal corporation represents the pecuniary and proprietary interests of individuals. As to the first, responsibility for acts done, or omitted, is governed by the same rule of responsibility which applies to like delegations of power; as. to the second, the rules which govern the responsibility of individuals are properly applicable.”

In Wheeler v. Cincinnati, 19 Ohio St. 19, the Supreme Court say, in the S3dlabus:

, “The power conferred by the statute, on cities of this state, to organize and regulate fire companies, and provide engines, etc., for extinguishing fires, is in its nature, legislative and governmental; and a city is-not liable to individuals for damage resulting from a failure to provide .the necessaiy agencies for extinguishing fires, or from the negligence of officers or other persons connected with the fire department.”

On page 22 of the opinion, the court say:

“Nor is it liable for a neglect of duty on the part of fire companies, or their officers, charged with the duty of extinguishing fires. The power of the city over the subject is that of a delegated quasi sovereignty, which excludes responsibility to individuals for the negligence or nonfeasance of an officer or agent charged with the performance of duties.”

A city is liable for the negligent performance of duties properly within its corporate powers, such as keeping the streets in repair and other matters of a kindred nature, and a distinction is made between duties of that kind and those of government or sovereignty. A discussion of this question is found in Cooley on Torts, beginning at page 619 and continuing through pages 620, 621, and the following pages. Judge Cooley says, on page 620 :

“For taking or neglecting to take strictly governmental action, municipal corporations are under no responsibility whatever except the political responsibility to their corporators and to the state. The reason is this, that it is inconsistent with the nature of their powers that they should be compelled to respond to individuals in damages for the manner of their exercise. They are conferred for public purposes, to be exercised within prescribed limits, at discretion, for the public good; and there can be no appeal from the judgment of the proper municipal authorities to the judgment of courts and juries.”

The question is discussed at length in 2 Dillon Mun. Corp. (2 ed.) in Secs. 771 and following, where the law is laid down in language similar to that employed by Judge Cooley.

Judge Dillon says, in Sec. 773:

“Agreeably to the principles just mentioned, police officers appointed by a city are not its agents or servants, so as to render it responsible for their unlawful or negligent acts in the discharge of their duties; and, accordingly, a city is not liable for an assault and battery committed by its police officers, though done in an attempt to enforce an ordinance of the city; nor for an arrest made by them which is illegal for want of a warrant; nor for their unlawful acts of violence, whereby, in the exercise of their duty of suppressing an unlawful assemblage of slaves, the plaintiff’s slave was killed.”

And in Sec. 774:

“So, although a municipal corporation has power to extinguish fires; to establish a fire,department; to appoint and remove its officers, and to make regulations in respect to their government and the management of fires, it is not liable for the negligence of firemen appointed and paid by it, when engaged in their line of duty, upon an alarm of fire, ran over the plaintiff, in drawing a hose reel belonging to the city, on their way to the fire; nor for injuries to the plaintiff, caused by the bursting of the hose of one of the engines of the corporation, through the negligence of a member of the fire department; * * *. The exemption from liability is placed upon the ground that the service is performed by the corporation in óbedience to an act of the legislature; is one in which the corporation has no particular interest, and from which it derives no special benefit in its corporate capacity; that the members of the fire department, although appointed by the city corporation, are not the agents and servants of the city, for whose conduct it is liable; but they act rather as officers of the city, charged with a public service, for whose negligence in the discharge of official duty no action lies against the city, without being expressly given; and the maxim of respondeat superior has, therefore, no application.”

And many other instances are given’ by Judge Dillon where a city is not liable for the acts of its agents or servants, when acting in a governmental capacity. We are of the opinion, as already intimated, that the city, in constructing and maintaining this workhouse, was acting in a governmental capacity, acting for the state, for the preservation and maintenance of order, in the punishment of offenders against law, and not acting in its corporate capacity, and that, therefore, the city is not and was not liable for the acts of the superintendent of the workhouse, as charged, and that, therefore, the petition does not state a cause of action against the city.

Coming now to the liability of Mr. Ritter, the superintendent of the workhouse, it is alleged that the dungeon was damp and unsanitary, and narrow, so that the plaintiff was obliged to take an unnatural position; that he was kept in at one time forty-eight hours, and on another occasion for the same length of time, both times without food, and on a later occasion he was kept in the dungeon for the period of 144 hours, but it is not alleged that he was kept for that long period without food. It is claimed that these allegations are sufficient to make a cause of action against Ritter, the superintendent — to constitute a liability against him, for his acts and conduct in the performance of his duties as superintendent of the workhouse. There is no allegation in the^ petition that Ritter acted maliciously, or with an intention to injure Rose; but it is claimed that the facts which are stated are sufficient without any such allegation, to constitute a cause of action against him.

The superintendent of a workhouse is a public officer — an executive officer, perhaps — charged with the government, in. a great measure, and the maintenance of good order in the city prison; and in the discharge of these duties he is given, and must be given, a wide discretion. He sits in a quasi-judicial capacity to determine whether a prisoner has violated a rule or regulation of the workhouse, and if so, what punishment shall be meted out to him. There can be no doubt that wardens of prisons and of penitentiaries and superintendents of workhouses have power to order the inmates of such prisons to be punished, when necessary, in some way. It is necessary that good order be preserved in these institutions. Reasonable rules and regulations must be made for the government of the inmates. The statutes provide for reasonable rules and regulations in the government of and the punishments administered in county jails, which are to be submitted to the common pleas judges, and the necessity for such rules and regulations applies with still greater force to workhouses such as this, where a large number of prisoners are confined, many of them for long periods of time, where they are compelled to work under the superintendence of officers of the workhouse as a punishment for criminal offenses. With such a large body of men gathered together in such a prison, reasonable rules and regulations are necessary, and it is necessary that these rules and regulations should be enforced and that the superintendent of such an institution should have the power to punish, within reasonable limitations and restrictions. Cruel or excessive punishments should not be administered and are not permitted under the constitution of the state; but, whether a man has violated a rule or not, is a question to be determined primarily by the superintendent. If he has become unruly and disorderly, what punishment shall be administered must be left to a great extent to the judgment and discretion of the superintendent for him to determine from the facts of every case and the circumstances surrounding his infraction, together with the general conduct of the inmate while he has been in the institution. It is, we think, a power inherent in such an officer to prescribe reasonable rules and regulations and see that they are obeyed and that punishments are inflicted for their infraction. It is a power exercised by the officers of prisons everywhere, and recognized by the law; a power similar to that exercised by a teacher in a public school, who, in theory, is said to stand in the place of the parent and has power to administer reasonable punishment, and if the punishment is reasonable and fairly in proportion to the offense committed, the teacher is not guilty of any violation of law and cannot be convicted of an assault or of assault and battery.

A short case, Burton v. Fulton, 49 Pa. St. 151, is in point: The syllabus, in part, is as follows:

“Public officers, acting within the scope of their authority, are not answerable in damages for the consequences of their acts, unless done maliciously and with an intent to injure.”

The liability of public officers is discussed at some length by Judge Cooley in his work on Torts, in the chapter headed, “Neglects of Official Duty,” beginning on page 375 and running through to page 403. In the first paragraph it is said:

“Although the incumbent of a public office has a property right in it, yet the office itself is a public trust, and is conferred, not for his benefit, but for the benefit of the political society. It is, therefore, from the standpoint of public interest, that any failure in duty is to be regarded, and the remedy for such failure must be indicated by the nature of the duty, and the purpose intended to be accomplished in imposing it.
“Official duties are supposed to be susceptible of classification under the three heads of legislative, executive and judicial, corresponding to the three departments of government bearing the same designations, but the classification cannot be very exact, and there are mdny officers whose duties cannot properly, or, at least exclusively, be arranged under either of these heads.”

And, on page 376, the author says:

“It is, however, as a general thing, only against ministerial officers that an action will lie for neglect of official duty. The reason generally assigned is, that in the case of other officers, it is inconsistent with the nature of their functions that they should be made to respond in damages for failure in satisfactory performance. In many cases this is a sufficient reason, but in others it is inadequate.”

And again, on page 379:

“The rule of official responsibility then, appears to b6 this: That if the dut)' which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages.”

And the question is discussed fully by the author. There is no allegation in this petition that Ritter acted maliciously or with any intention to injure Rose. The contrary is not averred, and it is to be presumed that Rose was guilty of violation of the rules or regulations of the workhouse, or he would not have been punished; for it is to be presumed that the superintendent and the authorities of the workhouse acted reasonably and in accordance .with the law and the rules and regulations of the institution, in the absence of any allegation to the contrary. It is alleged that he was committed to the dungeon without due process of law and without reasonable or probable cause, but without stating the facts; that is, without any cause that was reasonable in the mind of Rose; still it may have been sufficient in the mind of the superintendent of the workhouse and sufficient in fact. The , plaintiff alleges in his petition, as a conclusion, that it was without reasonable cause. In our judgment, this is not a sufficient allegation to constitute a charge of violation of official duty against this officer. It does not -appear but that Rose’s confinement in the dungeon was dependent entirely upon his willingness to conform to the rules of the institution. It may have been that he was unwilling to work and was committed to the dungeon until, he had indicated a willingness to resume work. It does not appear but that he was informed that whenever he indicated a willingness to resume work, he would be released from the dungeon. None of the facts as to the cause of his confinement — the circumstances surrounding the offense with which he was charged — none of these are set forth in the petition; there is no allegation that he had committed no offense. We do not think that the allegation that (in the judgment of the plaintiff) the cause was insufficient, or unreasonable, is a sufficient statement of fact to constitute a cause of action against the defendant, Ritter. As stated, the superintendent must be allowed discretion, and a wide discretion, in matters of this kind. This punishment may have been more severe than would have been inflicted by some other superintendent; it may have been more severe than some jury might think it ought to have been, but that is not sufficient. It is not the law, in our judgment, that whenever a man is punished in a workhouse, or in the penitentiary, that, by filing a petition, alleging that he has been punished without reasonable cause, a cause of action is stated against the prison keeper which would require him to go before a jury and have determined by such jury whether or not he should be made to respond in damages for the punishment of a prisoner committed to his charge.

It is said that this dungeon was damp and not sanitary. As we understand it, a dungeon cell is an ordinary appurtenance to a prison of this kind, and it is not improper or unlawful to punish prisoners who have been committed to prison by putting them, for a time, in the dungeon. Dungeons are not built or constructed entirely according to sanitary principles; they are, as a rule, somewhat dark and damp; they are not intended as a permanent place of residence for the inmates of the workhouse, or of a prison, but men are committed to them for a short time for the purpose of punishment, and it is intended to have them so constructed that imprisonment therein will be a punishment; it is not intended to make them a pleasant or an agreeable place to stay. The superintendent of the workhouse was making use of such a prison as he had been put in charge of by the city of Toledo, with its various appurtenances. He did not construct the prison; he did not construct the dungeon. The prison had been put in his charge and he was using it in the performance of his duties. The dungeon was a part of the building that he was using, and properly so, as a means of punishment of those confined therein. Punishment by whipping, or other corporal punishments in such institution, is rather discouraged and discountenanced, and such punishment as keeping men in solitary confinement for a time, or imprisonment in a dungeon for a short period of time, is favored by humanitarians, rather than corporal correction.

We are of the opinion that this petition does not state a cause o£ action against Mr. Ritter. He was acting in a public, official capacity; what he did at the workhouse was done as a public officer; what he did was for the public. What he did in the way of punishment of prisoners was for the good of the public and the preservation of order and the carrying out of the purposes of the workhouse rather than on account of any duty that he owed to Rose or any other inmate of the workhouse. We think that the case is fairly within the rules laid down by the authorities. Facts might be stated that would be of such a character as would make Ritter liable. There might be such facts stated as in themselves would show malice and an intent to do injury without any positive allegation to that effect; but the facts stated in this, petition fall short of that; they are not sufficient to show malice on the part of Mr. Ritter or any intention on his part to do harm to the plaintiff. For these reasons the judgment of the court of common pleas will be affirmed.


author: COOK, J.

text:
    ACTION — HIGHWAYS.
    [Trumbull (7th) Circuit,
    February Term, 1903.]
    Laubie, Cook and Burrows, JJ.
    Trumbull County (Comrs.) v. Pennsylvania Company.
    Injury to Public Highways — County Commissioners — Injunction.
    A board of county commissioners cannot maintain a suit in equity for an injunction to restrain an injury to a county road; its only remedy is an action at law for damages under Sec. 364 Rev. Stat.
    ’Appeal.
    iMr. E. E. Roberts, attorney for plaintiff.
    Messrs. H. E. Stewart and J. R. Carey, attorneys for defendant.
   COOK, J.

The action of plaintiff is to obtain an injunction against defendant to restrain it from wrongfully causing water to flow from its right of way upon the county road. There is no doubt from the testimony but that the defendant by recently making a deep cut upon its right of way, is draining a much larger amount of land than previously and that the accumulated water, large in quantity, is permitted to run upon the public highway with great force, causing deep cuts and holes in the road, and at times overflowing it and making it impassable. It further appears by the evidence that the defendant has a practicable and indeed convenient manner, with little expense, of running this accumulated water along its own right of way a short distance, to a natural water course, and, by so doing, avoid all injury to the road.

Under these circumstances has the plaintiff the right to maintain its action for an injunction? We think not.

Public highways belong to the state and are under its control and boards of county commissioners have only such jurisdiction over them as is provided by statute. Commissioners of Gallia County v. Holcomb, 7 Ohio (pt. 1) 232; Raynolds v. Cleveland, 24 O. C. C. 215. In the former case it was held: “The commissioners of the county cannot maintain an action in their capacity as commissioners against individuals who may carelessly or willfully destroy roads or bridges.”

And in the latter case it is held: “Municipal corporations have no inherent power to regulate and control streets therein, for streets and highways belonging to the state are under its control.”

Obstructions in public highways and injuries to the same constitute a nuisance and full power is conferred upon the state by its attorney general on his own behalf or upon the relation of a party in interest to invoke the equity powers of the court to have such obstructions removed or the injuries repaired and the highway restored to its former condition of usefulness. Little Miami Ry. Co. v. Greene Co. (Comrs.), 31 Ohio St. 338; State v. Railway Co., 36 Ohio St. 434. In the latter case, White, J., in delivering the opinion, says: “That courts of equity exercise jurisdiction in cases of purpresture and nuisance, of encroachments upon the public rights, as upon highways, rivers, and streets of towns, is well settled. The jurisdiction is predicated upon the broad ground of preventing irreparable injury, interminable litigation, a multiplicity of suits, and the protection of rights. Putnam v. Valentine, 5 Ohio 187; Law of Nuisance by Wood, Sec. 769, and notes. Under the. system of equity pleading, prior to the adoption of the code, the proper remedy, in cases of nuisances purely public, was by information or bill in the name of the attorney general, or of the government, instituted by him. Law of Nuisance, supra, Sec. 811; Story Eq. Jur., Sec. 923; Story Eq. Pl., Sec. 8. That the attorney general was authorized to institute such suits in behalf of the public is abundantly shown by the authorities. Attorney General v. Johnson, Mayor, Commonalty & Citizens of London, Wilson Ch. 87; People v. Vanderbilt, 26 N. Y. 287; People v. Davidson, 30 Cal. 379; Attorney General v. Stewart, 21 N. J. Eq. 340; Attorney General v. Forbes, 2 Mylne & C. 123. When the suit did not immediately concern the rights of the crown or government, its officers depended on the relation of some person, whose name was inserted in the information as the relator. !A relator, however, in such cases was by no means indispensable.”

It is claimed however that the act of March 7, 1873 (Sec. 863 Rev. Staff), affords such right of action for an injunction. The purpose of this act was to furnish an additional remedy to that possessed by the state in cases of injuries to public highways and, being such additional remedy, it must appear from the wording of the act or at least by a fair intendment that the remedy by injunction already possessed by the state is given to the board of county commissioners.

The act provides when any injury is done to a county road, “rendering the same less convenient or useful than it had'been previously by any person or corporation, such person or corporation shall be subject to an action for damages, and the board of commissioners of the proper county is authorized to sue for and recover of stich person or corporation so causing or having caused such injury or impairment such damages as have occurred by reason thereof, or such as are necessary to remove the obstruction pr repair the injury.”

It? will be observed that by the express provision of the act the remedy furnished the commissioners is an “action for damages,” for a money judgment, and the parties no doubt would be entitled to a trial by jury. Furthermore the act furnishes an adequate and complete remedy by such action at law. Not only does it provide for the removal of the obstruction and repairment of the injury, but further injuries may be provided against by such order as the court may make. It therefore furnishes a final remedy and prevents multiplicity of suits as effectually as a court of equity could do by injunction. The act sets forth: “The money so recovered shall when so collected by the proper officer be paid into the treasury of the proper county and shall be appropriated by the commissioners thereof in repairing such bridge, building or road or removing such obstruction, as the case may be, or to reimburse the county for expenditures in that behalf; and the court may in casé of recovery, make such order as is deemed necessary to repair the injury or remove the obstruction complained of.”

In this case there can be no doubt but that upon a recovery of a money judgment, the commissioners would not only have the right to repair the road out of the money recovered, but that the court would have the power to require the “defendant company, by proper order, not to wrongfully permit the water to flow from its right of way upon the road in such manner as to injure it and impair its usefulness. In State v. Railway Company, supra, in the opinion on page 4i2 it is said: “Counsel for defendant relies on the act of March 7, 1873, (70 O. L. 53) amending the act establishing boaisds of county commissioners, as furnishing the only remedy in cases of the obstruction of a state or county road. That act authorizes an action to be brought to recover damages by the county commissioners. We regard the act as merely cumulative and not in any way affecting the right of the state to maintain the present action. Darling v. Peck, 15 Ohio 71; People v. Vanderbilt, 26 N. Y. 294, 295.”

State v. Railway Co., supra, as we have seen, was a suit on behalf of the state for an injunction to restrain the railroad company from injuring a public highway.

Petition of plaintiff is dismissed at its cost.


author: JELKE, J.

text:
    WILLS.
    [Hamilton (1st) Circuit Court,
    1903.]
    Swing, Giffen and Jelke, JJ.
    John H. McCormick, Admr., etc., v. George Dunker et al.
    1. Next of Knsr.
    The words “next of kin” will not be taken in their technical sense in construing a will, where it clearly appears from the context that a different meaning was intended.
    2. Bequests to Charitable Institutions.
    If bequests are made to charitable institutions under defective appellations which are not generic, the ambiguity may be removed by extrinsic evidence.
    Cohen 8c Mack, for John H. McCormick.
    W. W. Bellew and Herman Merrell, for the next of kin of Catherine McCormick.
    Chris Von Seggern, for German General Protestant Orphan Asylum.
    Arnold Speiser, for St. Aloysius Orphan Asylum.
    W. W. Bellew, for the Dunker heirs.
   JELKE, J.

Technical words in a will must be taken in their technical sense hnless the contrary clearly appears from the context. We are of opinion that it clearly appears from the will of Henry Duncan (Dunker), deceased, that his widow’s second husband, McCormick, was not included, meant or intended within the term “next of kin” as used in said will, notwithstanding that term’s legal or statutory signification.

Construing the provision for the German Protestant Orphan Asylum in view of decedent’s nativity, residence and associations, and in view of the general and colloquial appellation given to a particular institution in this city, we find no difficulty in finding that testator had in mind and intended to designate the German General Protestant Orphan Asylum: now situated on Mt. Auburn, in Cincinnati.

The difference between the case at bar and the cases cited by counsel resisting this interpretation, is that in all these latter cases the name has been a generic one, as “the Sisters of Charity,” in Moran v. Moran, 73 N. W. Rep. 617 [104 Ia. 216]; while in the case at bar there has been a manifest effort to nominate a particular institution, but ambiguity has arisen from an inaccurate or defective appellation. This uncertainty can be removed by extrinsic evidence.

The law is well stated in Page on Wills, Sec. 539, p. 622, where the text is well supported by citations to cases adjudicated by high authority:

“Misnomer is especially frequent in devises to charitable corporations. The real names of such corporations are often never used and never known by people generally; and many testators do not feel the need, in preparing a will, of getting the real name of the proposed beneficiary. They prefer to guess at the name. Hence the number of adjudicated cases upon this point.
“It is an elementary principle that where a corporation is indicated in a will by an erroneous name, such a mistake will not avoid the gift if it is possible by means of the name used, or by extrinsic evidence, to identify the corporation 'intended as beneficiary with sufficient certainty.”

Also see Woman’s Union Missionary Soc. v. Meade, 131 Ill. 33 [23 N. E. Rep. 603].

“A -mistake in the name or description of a legatee or devisee, whether an individual or a corporation, will never render a bequest void, if the name and description used in the, will, as applied to the facts and circumstances proved, will identify such person or corporation.”

When we come to the provision of the will for the “Catholic Orphan Asylum.” we are not so certain. There is one more element of ambiguity as to this bequest, because, at the time of the making of the will there were two institutions in Cincinnati which might answer this appellation. But, taking the will as a whole, and remembering the facts and circumstances of the testator, and noting that German orphans were peculiarly the objects of his bounty, and that the word “Catholic” was used as complementary to the word “Protestant,” we come to the conclusion that the particular institution intended was the German Catholic Orphan Asylum ; that is, the institution whose corporate name is and was “the St. Aloysius Orphan Society.”

Decree accordingly.


author: COOK, J. BURROWS, J.,

text:
    PETITIONS IN ERROR.
    [Mahoning (7th) Circuit Court,
    March Term, 1903.]
    Laubie, Cook and Burrows, JJ.
    William Brobst v. Canfield (Village).
    Violation of Ordinance — Refusal of Leave to File Petition in Error.
    The refusal of a court of common pleas to allow a petition in error to be filed, to review a conviction under an ordinance of a municipal corporation, is reviewable in the circuit court, and when the errors complained of are substantial, and should be fully considered and determined, the judgment of such court, refusing leave to file such petition, will be reversed with directions to permit the filing of the same.
    Heard on Error.
    E. N. Brown, for plaintiff in error.
    C. A. Manchester, for defendant in error, cited:
    Where leave of court is necessary before filing a petition in error, and when the common pleas court refuses such leave, the refusal is not reviewable by a higher court for the reason that it is not a final judgment or order in a pending case. Rothwell v. Winterstein, 42 Ohio St. 249; Carroll v. O’Connor, 25 Ohio St. 617; Sec. 6610 Rev. Stat.; Dennis v. Hanson, 5 Circ. Dec. 465 (12 R. 445); Sec. 6709 Rev. Stat.; Armstrong v. Brewing Co., 53 Ohio St. 467 [42 N. E. Rep. 425]; Miller v. Bellefountaine, 1 Circ. Dec. 407 (2 R. 139) ; 2 Cyc. Law & Proc. 621; 2 Century Digest, 893, appeal and error.
    The circuit court cannot review directly from a mayor’s court, notwithstanding common pleas court has refused to allow a- petition in error. Bartlett v. State, 22 Ohio St. 205; Benham v. Conklin, 3 Ohio St. 509; Kosminski v. Barrett, 34 Ohio St. 163; Barnes v. Decker, Wright 207.
    Should this court hold contrary to above argument, that it can review directly from the mayor’s court, still it is urged that the petitions in error in these cases must be dismissed for the reason that this court has never granted leave to file such petitions in error. Miller v. Bellefountaine, 1 Circ. Dec. 407 (2 R. 139).
   COOK, J.

Plaintiff in error, William Brobst, was convicted in the municipal court for the violation of an ordinance of the village of Canfield, Mahoning county. He made application to the court of common pleas of the county for leave to file a petition in error under Sec. 1752 Rev. Stat., which was refused, the court- placing upon the journal such refusal, to which exception was taken by plaintiff in error, and he now prosecutes error in this court to reverse the order of the common pleas court in refusing leave to file the petition in error.

The contention of defendant in error primarily is that this court has no jurisdiction to review the action of the common pleas court in refusing leave to file the petition in error.

Has this court such jurisdiction ? A majority of the court thinks it has.

Section 7356 Rev. Stat. provides:

“In any criminal case including a conviction for a violation of an ordinance of a municipal corporation; the judgment or final order of a court or officer inferior to the common pleas court may be reviewed in the common pleas court.”

The court of common pleas therefore had jurisdiction to review the conviction under the ordinance.'

Section 6709 Rev. Stat. provides:

“A judgment rendered or final order made by any court of common pleas or a judge thereof, may be reversed, vacated or modified by the circuit court of the county wherein such court of common pleas is located, for errors appearing upon the record.”

Section 6707 Rev. Stat. provides:

“An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding or upon a summary application in an actipn after judgment, is a final order which may be vacated, modified, or reversed, as provided in this title.”

It is claimed on behalf of defendant in error that there was no action in error pending before the common pleas court because no petition in error had been filed. True, but was it not a special proceeding? Application had been made to the court for leave to file a petition in error; it was done by motion properly filed, of which due notice had been given to the village; the court' passed upon the motion, overruling the same,-refusing the leave, and making the proper entry on the journal of such refusal.

The case of Missionary Society v. Ely, 56 Ohio St. 405 [47 N. E. Rep. 537], was a proceeding in the probate court for the probate of a will. Probate of the will was refused in the probate court; it was appealed to the common pleas court and again probate of the will was refused. A petition in error was filed in the circuit court, and that court dismissed the petition, assigning as the reason for such dismissal that it had no jurisdiction to review the action of the common pleas court. The Supreme Court held:

“1. An application to the probate court to admif an alleged' will to probate is a special proceeding within the meaning of that clause of Sec. 6707 Rev. Stat., which provides that an order affecting a substantial right made in a special proceeding is a final order which may be vacated, modified or reversed as provided in title 4 of the Revised Statutes.
“2. The order of the common pleas refusing to admit to probate is a final order affecting- a substantial right, from which error may be prosecuted to the'circuit court, and that court has, by virtue of Sec. 6709 Rev. Stat., jurisdiction to reverse, vacate or modify such order for error appearing on the record.”

In the opinion Spear, J., says, p. 407 :

“The contention being whether or not the circuit court had jurisdiction to review the order of the common pleas, the first inquiry naturally is as to the character of the proceeding in that court, and the character of its order refusing to admit the alleged will to probate. Was it a special proceeding, and was the order a final order?
“As to the first inquiry, it seems to us there can be but little difficulty. Our code does not, as does the code of New York, specify that every remedy which is not an action is a special proceeding, nor do our statutes give any definition of an action or a special proceeding, But we suppose that any ordinary proceedings in a court of justice, by which a party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense, involving the process and pleadings, and ending in a judgment, is an action, while every proceeding other than an action, where a remedy is sought by an original application to a court for a judgment or an order, is a special proceeding. As given by Bouvier, a remedy is ‘the means employed to enforce a right, or redress an injury.’ Sec. 5921 Rev. Stat., and cognate sections, give a right to any person to whom any estate has been devised or bequeathed by any last will or to any person interested therein to propound such will for probate and, the proper proof being made that the will was duly attested and executed, and that the testator, at the time of executing the same, was of sound mind and memory, of full age, and not under any restraint, the right exists in the proponent that the court shall admit the will to probate. In no other way can he enforce his right to have the benefit of the provisions of the will. The court, by the mandatory requirement of the statute, is called upon to determine as to the existence of the right, and it being ascertained that the paper presented is the last will of the deceased, its admission to probate follows as a legal necessity. The law having conferred the right, and authorized an application to a court of justice to enforce it, the proceeding -upon such application is of a judicial nature, and, not being an action within the sense of the code, it follows that it belongs to that class known as special proceedings.”

It may be claimed that the order of the common pleas court was not final; that application could again be made to the court. If it could, which is more than doubtful, it would have to be made to the same court and upon the same record, and its action under those circumstances would seem to be final; and furthermore Sec. 1752 Rev. .Stat. provides that in case of affirmation or reversal by the common pleas, the judgment may be reviewed in the circuit court. '

That it affected a substantial right there can be no doubt, as it absolutely determined the right of plaintiff to have the action of the municipal court reviewed.

Finally it is claimed that Sec. 1752 Rev. Stat. in effect declares that the refusal of the common pleas court to grant the leave to file a petition in error is final; that in terms it determines that it is not reviewable, and upon this last question only is there any disagreement among the members of the court. The section, so far as important to this inquiry, provides:

“A conviction under an ordinance of any municipal corporation may be reviewed by petition in error, in the same manner and to the same extent as was heretofore permitted on writs of error and certiorari, and the judgment of affirmance or reversal may be reviewed in the same manner ; and for this purpose a bill of exceptions may be taken, or a statement of facts embodied in the record on the application of any party; but no such petition shall be filed except on leave of the court or a judge thereof, and such court or judge has power to suspend the sentence, as in criminal cases.”

It will be observed, as we have heretofore stated, the section provides that the judgment of the common pleas court of affirmation or reversal, may be reviewed as in other cases showing that the intent of the legislature was that_the same proceedings should be had as in ordinary criminal cases. Under such circumstances we do not think it possible that it was the intention that, in the first instance, the common pleas court could finally close the door to any investigation of the errors that might appear upon the record, however plain and flagrant. If such was the intention, it certainly would have been expressed in plain and unequivocal terms and not left to inference. Violation of ordinances of municipal corporations are often attended with severe penalties, both by fine and imprisonment, and where our statutes so generally provide for review by proceedings in error, both in civil and criminal cases, the presumption should be very strong that the intention of the act was to prevent review before we could give it such construction.

,We do not say that the common pleas court may not be justified in refusing leave to file a petition in error; what we hold is that it is a matter of discretion, a legal discretion, and- a final order in a special proceeding which is reviewable, and if the circumstances in each particular case show that the petition should have been filed and the case fully-heard upon the errors complained of, this court will reverse for error in refusing the leave.

Counsel for the village calls attention to the case of Rothwell v. Winter stein, 42 Ohio St. 249. We do not think that case applicable to this case. That was a case in forcible detainer. In such case the judgment is not final, the statute expressly providing that the judgment should not be a bar to any after-action brought by either party, and, as we understand the case, that was the reason for the holding that the refusal of the common pleas court to allow a petition in error to be filed was not reviewable.

We have looked into the errors assigned in the motion for leave to file the petition in error, also as found in the record, and we find them not to be trivial, but substantial and such as should be fully and carefully considered, and, without expressing any opinion upon them, it is ordered that the order of the common pleas court, in refusing leave to file a petition in error, be reversed, and the common pleas directed to permit the filing of the petition in error.

Same entries in cases 665 and 666.

BURROWS, J.,

dissents.

I place my dissent in this case upon the provisions of Sec. 1752 Rev. Stat., that “A conviction under an ordinance of any municipal corporation may be reviewed by petition in error; * * * but no such petition shall be filed except on leave of the court or a judge thereof.”

It is not suggested that the court here mentioned is other than the court of common pleas. Neither is it suggested that the language or meaning of this section is uncertain.

In unequivocal terms it requires the leave of the court of common pleas or a judge thereof as a condition precedent to the review of a conviction under an ordinance. Since this right to a review does not exist except when given by statute, it follows that the refusal of the court of common pleas to allow the petition in error to be filed precludes any further proceedings upon such petition. But it is claimed that this court may review and reverse the order of the court of common pleas refusing such leave, by virtue of the power given the circuit court in Sec. 7356 Rev. Stat., to review the judgments and final orders of the court of common pleas.

Conceding that the refusal of leave is a final order, still the circuit court has jurisdiction by Sec. 7360 Rev. Stat., only to affirm or reverse judgments; and can reverse those only that are in their nature and character reversible. An affirmance or reversal in this case would alike leave the plaintiff in error out of court.

To give relief to the plaintiff in error this court must go farther and allow the petition in error to be filed in the court of common pleas. And this, in effect, would amend Sec. 1752 Rev. Stat. so that a petition in error could, in such cases, be filed in the court of common pleas on leave of that court or a judge thereof; or, when refused by them, on leave of the circuit court.

If this position is correct, then by Sec. 7306a Rev. Stat., this judgment, if reversed by the circuit court, may be reviewed in the Supreme Court. The manifest purpose of the exception in Sec. 1752 Rev. Stat. is to shut the door of the court of common pleas against all petitions in error from convictions for municipal offenses which that court or a judge thereof considers lacking in legal merit. This evident purpose of the legislature is thwarted by the decision made in this case. The grant of power to allow or refuse applications in these cases must, in the nature of the case, be discretionary and exclusive. Any other construction, instead of putting an. end to cases whose merit is thus condemned, would give to such offenders an enlarged opportunity for litigation and delay.


author: PARKER, J.

text:
    STREET IMPROVEMENTS — ASSESSMENTS.
    [Lucas (6th) Circuit Court,
    February 23, 1903.]
    "ITaynes, Parker and Hull, JJ.
    Harriet A. Blair v. C. K. Cary.
    1. Determination of Excess of Benefits not Required.
    An assessing committee of a city council, having determined that the benefits accruing from an improvement to all the property upon the street to be assessed therefor, is as much as the amount to be assessed thereon, is not required to go further and determine the extent that the benefits exceed the amount to be assessed, and an assessment upon any parcel of such property is valid if not in excess of the benefit accruing thereto nor more than its just proportion of the amount to be assessed.
    2. Irregularities in Proceeding Determining Amount of Assessments not Fatal.
    An assessment for a street improvevnent is not invalid for the reason that the council or its assessing committee 'did not proceed by a certain or prescribed method in determining its amount, if a just and equitable result is obtained, and even though the method pursued by the council or its committee is unscientific or informal if the amount assessed against a parcel of land does not exceed the benefits thereto resulting from the improvement, or its just proportion of the benefits thereby resulting to all the property subject to assessment therefor, the owner has no ground of complaint.
    3. Valuation of Property Assessed not Essential to Validity of Assessment.
    An assessment for a street improvement in the city of Toledo is valid against a property owner signing the petition therefor, although the assessing committee of the council does not fix the value of the property assessed. Section 2272 Rev. Stat., which provides that such an assessment shall be valid, although it exceeds twenty-five per cent, of the value of the property, applies, and a valuation of the property is unnecessary.
    4. Incorrect Minutes will not Defeat Contractor’s Rights, When.
    The mere failure of the recording clerk of a city council to make correct minutes of its proceedings in authorizing a public improvement will not defeat the rights of a contractor who has constructed such improvement.
    5. Presumption from Journal as to Number of Councilmen Voting Upon a Resolution.
    Where the journals of the council of a city show that a resolution was adopted in each branch of the council by a certain number of votes and such numbers correspond with the number of councilmen shown by such records to have been in attendance, it will be presumed that all those present voted aye, and such vote and record is sufficient under Sec. 1693 Rev. Stat., which requires that the vote on the adoption of ordinances, resolutions and by-laws shall be taken by yeas and nays, and recorded on the journal.
    Heard on Appeal.
    B. A. Hayes, for plaintiff.
    F. S. Monnett and N. O. Winter, for defendant.
   PARKER, J.

Suit was brought in the court below by Harriet A. Blair, who was the owner of lot No. 21 and the westerly thirty feet of lot No. 22, in the Virginia street addition to the city of Toledo, to have her title quieted as against certain claims against said property which were asserted by the defendant, Cary. It appears that the property had been sold by the treasurer of Lucas county, at a delinquent tax sale, to Cary, for the sum of $128.05, the same being the amount of taxes charged upon the tax-duplicate of said county against the property for the year 1899; that in pursuance of this sale, the auditor of the county issued arid delivered to the defendant a certificate of purchase of said premises. It appears that a part of the.taxes making up this amount were state, county and city taxes, for general purposes, for the year 1898, and a part of the amount was made up of fifteen per cent, penalty thereon, and part was state, county and city taxes for general purposes for the year 1899; and on account of an assessment for the paving of Virginia street, $73.40, and on account of an assessment for printing notices, $3.40.

Now it is averred in the petition — and this is not disputed — that a part of this general tax was levied because of a debt of the county arising out of the building of an armor}' in pursuance of “An act to provide for acquiring land' and building an armory in the county of Lucas, for the use of the Ohio National Guard, and to create a fund to pay for the same.” (87 O. L. 598.) It also appears that that act has been held to be unconstitutional, and the levies to raise funds to discharge this debt have been held to be invalid; and, in consequence thereof, no valid title to property can be obtained at a tax sale where any of these taxes make' up a part of the taxes on account of which the sale is made. So the defendant here does not undertake to claim title to the property, nor to enforce the collection of the penalty, nor to maintain his lien for the penalty. The contention in this case, therefore, is narrowed down to the assessment for the paving of Virginia street. It is contended on behalf of the plaintiff that this assessment is invalid — this assessment of $73.40, due and payable in the year 1899, for various reasons set forth in her petition. There are other installments of this assessment on account of the improvement of Virginia street by paving, for the years 1900, 1901, 1902 and 1903, the total of the amount of this assessment upon this property being $281.06. The defendant paid this item of $73.40 at the time he made this purchase. It appears, I believe, that he has since paid one other installment, and he undertakes to maintain his lien for these parts of this assessment upon the Virginia street property. Now the plaintiff avers that this assessment is invalid, “is null and void, for the reason that said city council did not determine the value of the premises, or any part thereof, hereinbefore described, either in advance of said assessment or at the time of making the same.” Also, “that said assessment for the improvement of Virginia street was, in the.first instance, made by the assessing committee appointed by said city council, to make an assessment in proportion to the special benefits conferred by said improvement upon the lots and lands benefited thereby, in pursuance of a resolution therefor, but plaintiff says that neither said assessing committee nor said common council ever made a total valuation of the special benefits conferred by said improvement upon the lots and lands benefited by the same, as provided by law and by the resolution of said common council appointing said committee, for which reason said assessment is wholly null and void.”

Counsel for plaintiff in error contends that because the assessing committee failed to ascertain and use as a basis for the apportionment of the assessment the total of the benefits accruing to, the propert}*- on the street, the assessment cannot, in the nature of things, be correctly apportioned. He quotes the provisions of Secs. 2264 and 2277 Rev. Stat., relating thereto and cites the case of Chamberlain v. Cleveland, 34 Ohio St. 551, and urges that 'to meet the requirements of the statutes and the rules laid down in this case, the sum of the benefits must be ascertained and used as a basis in the mathematical problem necessarily involved and submitted to the city council and assessing committee for their solution. I quote from his brief: ~ ~~

“This proposition may be stated mathematically as follows:
The the the the
whole special whole assessment
special are to benefit? as amount is to on the
benefits of a to be particular
particular assessed lot.
lot
“But it is alleged in paragraph seven of the petition that neither the assessing committee nor the council ever made a valuation of the whole special benefits conferred by the improvement (and this allegation is denied in the amended answer as interlined, but the testimony supports the petition). It therefore follows that as the first term in the above proportion was never determined it was mathematically impossible to determine the fourth term.”

Now the report of the assessing committee is as follows:

“We find that the estimated value of special benefits conferred upon the lots and lands set forth in the ordinance providing for said improvement, passed August 9, 1897, is equal in amount to the total estimated cost of said improvement, including incidental expenses thereof as reported herein. We find and report an estimated assessment upon .tie lots and lands set forth in said improvement ordinance passed August 9, 1897, which estimated assessment so reported herein is made on the lots and parcels of land so assessed and is apportioned among the several lots or parcels of land specially benefited by said improvement in proportion that the special benefit to each lot or parcel of land bears to the whole special benefits conferred by said improvement. Said estimated assessment upon each lot or parcel of land so assessed and as reported herein, is based upon the value of special benefits conferred upon the same by said improvement, and does not exceed the same nor do they exceed the proportion of the special benefits conferred upon each lot or parcel of land by said improvement, and said assessment, so made as aforesaid, is as follows

Among the list of property described appears the following: “Lot 21 and Wly 30 ft. lot 22 Virginia street Add. (1899) $73.40, (1900) $55.42, (1901) $53.08, (1902) $50.75, (1903) $48.41, (total)' $281.06.

“Respectfully submitted,
“ A. E. Forster,
“'Geo Vogel,
“John G. Keller,
“ Toledo, O., August 25, 1898. “ Committee.
“ Confirmed October 10, 1898.
“ Attest: Lem P. Harris, City Cleric.
“ Ordinance to confirm assessment, Vol. T. Journal, p. 294.
“ Yea and nay vote duly recorded council meeting October 3, 1898.”

Keller and Forster, two of the assessing committee, testify orally as to the course they pursued in making the assessment. They agree in their statements, and it is agreed by counsel that Vogel, the third member of the committee, if called, would testify the same. • They say, in substance, that they proceeded as follows:

1. They got the total cost of the improvement from the city civil engineer.

2. They obtained the descriptions of all the”property to be assessed.

3. They ascertained the amount of benefits to each parcel and apportioned the same, having reference in so doing to the whole amount to be assessed. But, they say that they ascertained and determined that the amount of benefits upon all the property to be assessed exceeded the total of the costs and expenses which they assessed thereon; that the amount of the assessment upon any parcel did not exceed in any case the benefits thereto nor its proportion of the amount assessed upon all the property. They also feay that they determined the value of each lot so as not to exceed the limitation of twenty-five per cent., which they supposed they were required to observe — that is to say, that the assessment should not exceed twenty-five per cent, of the value of the property; that in estimating the benefits they viewed the property; they considered its location, the size and shape of each parcel, the extent of the frontage, the improvements thereon and the uses to which it was or might be devoted and everything else that in their judgment had a «proper and legitimate influence upon the estimate, they were making of the benefits accruing thereto from the improvement, -but they did not estimate • the amount of benefits accruing to all the property upon the street and sum the same up or go through the arithmetical operation of adding the same and using the total as a basis for apportioning the benefits, and, finding that the benefits exceeded the amount to be assessed, they proceeded with that amount as a basis, taking no account of the excess of the total benefits over'the total amount to be assessed.

Counsel for plaintiff in error relies very much upon the case of Chamberlain v. Cleveland, supra. We do not understand that the court in that case attempted to lay down any certain rule, method, or modus operandi for apportioning such burdens or making such assessments, or that anything there held supports the contention of counsel that the total of the benefits accruing to all the property benefited and to be assessed must be ascertained and stated’ and used as a basis or as one of the terms of a mathematical problem to be worked out by the assessing committee or the council. The fundamental fault in the proceedings in that case manifest upon the record, was a failure to consider at all the question of benefits in making the assessments, and proceeding upon the assumption that the cost of the improvement was to be assessed upon the abutting property at all events.

In the case at bar, the assessing committee having found and determined that the benefits accruing from the improvement to all the property upon the street to be assessed therefor was as much as the amount to be assessed thereon, we are of the opinion that it was not required to go farther and determine the extent, if any, that the benefits exceeded the amount to be assessed. In other words, if the total of -the 'benefits to all the property exceeded the amount to be assessed, the amount of such excess was unimportant. It was only important that the amount to be assessed should be equitably apportioned and assessed, and that the assessment should not exceed in the case of any particular lot, the benefits accruing thereto, nor its proportion of so much of the total benefits as equalled the whole amount to be assessed. This result they say they obtained. Whether they used as the first term in the problem,, as stated by counsel, the total of benefits to all the property, or only so much of the total benefits as they were required to apportion and assess, the result would be the same. In other words, if $20,000 were found to be the total of the benefits, and $15,000 the amount to be apportioned and assessed, it would follow that an amount equal to but 75 per cent, of the benefits accruing to each parcel should be assessed against the same. Proceeding to make the apportionment and assessment of the $15,000, if they considered the just proportions, they necessarily assessed upon each parcel but 75 per cent, of the benefits accruing thereto. They report and they declare that they considered these elements of the problem, and that they obtained the results that in their judgment was right and just after giving full consideration and according full influence thereto; that they did not assess any pai'cel in excess of the benefit resulting thereto nor more than its just proportion of so much of the total benefits as equalled the amount to be assessed. This, as we understand it, is the substance of their report and testimony, and this we believe is a compliance with the spirit and the letter of the law.

But, even if this were not made to appear affirmatively, the plaintiff would not therefore be entitled to a decree against the enforcement of this assessment. In our judgment she must go farther than to show that the' committee did not proceed by a certain or even by a prescribed method to attain the result. In order to entitle her to sixch relief at the hands of a court of equity she must make it appear that, in her case, a just and equitable result was not attained. Even though the method pursued by the committee, or the council, was not scientific, or was informal, if the amount assessed against their property did not exceed the benefits thereto resulting from the improvement, and did not exceed her just proportion of the benefits thereby resulting to all the property subject to assessment therefor, she has no ground of complaint.

Now, it is admitted in the agreed statement upon which (as supplemented by oral evidence) the cause was submitted to us, that the whole amount assessed upon the property upon the street does not exceed the whole of the benefits thereto, and that the amount assessed against plaintiff’s property does not exceed the benefits thereto, and she does not aver nor attempt to prove that the amount assessed against her. property exceeds, or even equals its just proportion of the total benefits to all the property assessed; she simply avers that the committee or council never ascertained the total of benefits to all the property, and urges that because of this omission it was mathematically impossible for it to make a just distribution of the burdens.

Enough has been said to indicate our views upon that proposition; but, even if that were true, if a just result so far as plaintiff is concerned had.been attained by other than scientific methods, or even by accident, she is without ground of complaint, and it devolves upon her to show that jher property has been over-assessed — that the law has been disregarded to her hurt and injury. In this she has totally failed; indeed, she has not attempted to make such a showing. We hold, therefore, that she is without just ground for complaint on this head.

The petition contains the averment that:

“Said contract was null and void for the reason that the resolution confirming it was not adopted by a yea and nay vote, nor were the yeas and nays on the adoption thereof entered upon the journal of said city council.”

Section 1693 Rev. Stat., requires that the vote on the adoption of ordinances, resolutions and by-laws ‘.‘shall be taken by yeas and nays, and recorded on the journal,” and that the concurrence of a majority of all the qualified rpembers of the legislative body shall be necessary to their adoption. The agreed statement of facts on that subject reads as follows:

“ PARAGRAPH THREE :
“ That there is recorded in volume K of resolutions at page 213 the following:
“ ‘ Resolved, By the common council of Toledo that the contract with F. E. Cole for the improvement of Virginia street from Collingwood avenue to Lawrence avenue by paving the central twenty feet thereof with Trinidad asphalt No. 1 laid on a foundation of concrete six inches thick to the established grade and providing the necessary grading, curbing, drainage, etc., be and the same is hereby confirmed.
“ ‘ Adopted October 11, 1897.
Attest: Lem P. Harris, Approved October 13, 1897.
“ ‘ City Clerk. S. M. Jones, Mayor.’ ”
“ PARAGRAPH FOUR :
“That the only records of the passage of the resolution set out in paragraph three above is the following, recorded in volume F of the journal of board of aldermen at page 305 :
‘A resolution to confirm contract for the improvement of Virginia street, Collingwood avenue to Lawrence avenue by paving, adopted yeas fifteen.’
“And the following recorded in volume S of the journal of the board of councilmen at page 470 :
‘A resolution to confirm contract for the improvement of Virginia street, Collingwood avenue to Lawrence avenue by paving, adopted, yeas twenty-nine.’
“ PARAGRAPH FIVE :
“That the record of the meeting of the board of aldermen at which the resolution set out in paragraph four was passed shows that at the opening of said meeting the following members were present, to-wit: Bacon, Braunschweiger, Brown, Fellows, Jackson, Jefferson, Laden, Metz, Mathias, Roulet, Stewart, Sullivan, Valentine, Whalen and Meissner — fifteen.
“That the record of the meeting of the board of councilmen at which the resolution set out in paragraph four was passed shows that at the opening of said meeting the^ following members were present, to-wit: Abele, Austin, Bretch, Calkins, Champion, Chase, Coleman, Connell, Dawson, Drane, Engelhart, Hales, Hoffman, James, King, Kraus, Masten, Roll, Reeves, Schneider, Shirks, Shovar, Stark, Truman, Wylie, and McAleese — twenty-seven, and that after said meeting was opened, and before said resolution was voted upon, the following members came in and took their seats, to-wit: VanLoo and Stevens.”

It is urged that this does not show a compliance with the law, but that it discloses that the law was not complied with. In supporting this conclusion, counsel cites Steckert v. East Saginaw, 22 Mich. 104. The statute there under consideration required that “the votes of all the members of the common council, in relation to any act, shall be entered at large on the minutes,” and the record under consideration set forth the names _ - ' ; ' of the councilmen attending, and that the resolution in question was “adopted unanimously on call.”

' In the case at bhr it will be observed that the record says that certain yea and nay votes were taken, and the members are given, and the numbers correspond with the numbers of councilmen and aldermen in attendance, or whose attendance is noted. It is perhaps a fair inference, possibly a necessary conclusion, that all those named voted aye and that none others voted, or were present to vote. Nevertheless, we do not mean to approve of the method of recording a yea and nay vote, and think that much that is said by Judge Cooley in his opinion in the case cited, is applicable to proceedings under our statute. He says, in part, page 107:

“Unless the minute is a compliance with the section of the charter in question, it is not claimed by the defendants that it has been complied with at all; but their argument is that the record shows, first, the names of the several aldermen who were present when this action was had; second, that the roll was called on the vote; and, third, that each of them, when the roll was called, voted for the adoption of the resolutions. This being so, the vote is, in effect, entered at large on the minutes, and the repetition of the names of the aldermen in the minutes, when the precise position of each upon the resolutions submitted was already recorded, would have been only an idle ceremony, accomplishing no useful purpose.
“We have found ourselves unable to take the same view of this record that is taken by the counsel for defendants. There can be no doubt that the provision of the statute which requires these votes to be entered at large on the minutes, was designed to accomplish an important public purpose, and that it cannot be regarded as immaterial, nor its observance be dispensed with. Spangler v. Jacoby, 14 Ill. 297; Supervisors of Schuyler Co. v. People, 25 Ill. 183. The purpose, among other things, is to make the members of the common council feel the responsibility of their action when these important measures are upon their passage, and to compel each member to bear his share in the responsibility by a record of his action, which should not afterward be open to dispute. * * *
“What is designed by this statute is, to fix upon each member who takes part in the proceedings on these resolutions the precise share of responsibility which he ought to bear, and that by such an unequivocal record that he shall never be able to deny either his participation or the character of his vote. But manifestly we cannot determine in the present case, with any certainty that any one of the aldermen named— Alderman Buckhopt, for example; — actually voted for the resolutions in question. We know he was present when the council convened, but we have no record which points specifically to his individual action after-wards. Suppose he were to cóntest the tax as illegal, and the city authorities were to insist upon an equitable estoppel arising upon his vote in its favor, and he should deny such vote, we should look in vain in this record for anything absolutely inconsistent with such denial. Suppose his constituents, dissatisfied with this vote, undertake to call him to account for his participation, and he were to say to them, ‘I was not present when these resolutions were adopted; I was indeed present when the council convened, but was called away soon after on private business;’ this record plainly could not be relied upon to contradict his assertion. The persons arraigning him would be obliged, in order to fix his responsibility, to resort to the parol evidence of his associates or of bystanders. ■But the legislature understood very well the unsatisfactory character of that kind of evidence, and they did not intend that the power to call an' alderman to account for misconduct, delinquencies or errors of judgment in the performance of this official duty, should be left to depend upon it. They have imperatively required that there should be record evidence of a character that should not be open to contradiction, or subject to dispute; and their requirement cannot be complied with according to its terms, nor satisfied in its spirit and purpose, without entries in the minutes showing who voted on each resolution embraced by the section quoted from the charter, and how the vote of each was cast. In other words, the ayes and noes on each resolution must be entered at large on the minutes, so that the presence or participation of any member shall not be left to conjecture or inference.”

It does not appear that these councilmen did not in fact all vote “aye” upon this resolution; it is only charged, and it only appears that they are not recorded as having voted in that way. If they in fact so voted, the resolution would have been regularly' adopted to all intents and purposes so far as it affected the rights of all parties who could possibly have any interest in it, even though the record did not affirmatively disclose the fact. As was decided in the case of Drott v. Riverside (Vil.), 2 Circ. Dec. 565 (4 R. 312), where a certain resolution embodying a contract did not appear to have been adopted at all, the fact that it was adopted might be shown by parol. Of course it would not be within the power of the city to defeat the rights of the contractors because of a failure of the recording clerk to make correct minutes of the transactions of the councilmen.

But, even if we should adopt the rule laid down in the Michigan case referred to, we cannot see that the plaintiff may insist that a duty to her rested upon the city to deny payment under this contract, and that the city might have done so successfully and thereby relieved the plaintiff of the burden of the assessment; and it seems to us that this should be made to appear, in order to justify the contention of the plaintiff here that this assessment should be held invalid; that is to say, it should appear to us that the duty rested upon the city to declare that it had assumed no obligation and to refuse to pay anything to the contractor for furnishing material and labor for making the improvement after it had stood by allowing these things to be furnished, and that the city could have successfully maintained that position, in order to allow the plaintiff to maintain her contention here under that head; and we are of the opinion that neither of these is true. We are not cited to any authority, and we have searched for none, but we do not believe that the city could stand by and allow this work to be done in pursuance of a contract and afterward successfully resist payment on the ground and because of an informality on the part of the council in adopting the contract, even if it were true that that informality existed, and we do not think it was a duty which rested upon the city to interpose such defense for the benefit of the plaintiff and others upon that street.

It is said, in the third place, that the assessment was invalid because the value of the property was never fixed by the council, so that no twenty-five per cent, limit could be observed, reference being had to Sec. 2270 Rev. Stat., which requires that an assessment shall not exceed twenty-five'per cent, of the value of the property to be assessed. It does not appear to us that any valuation of the property was required in this case. It was held in the case of Strauss v. Cincinnati, 10 Re. 783 (23 Bull. 359), by the superior court of that city, that a failure to fix a valuation did not render an assessment invalid in a case where it was required; and that holding was confirmed by the superior court at the general term, the report of the affirmance appearing in 24 Bull. 422; and if a valuation were required here, we would be inclined to the views expressed by the court in that case; but it seems to us that no valuation was required here (although the assessing committee say that they did consider the value of the property and wer.e careful not to exceed the twenty-five per cent, limit), because of the express provision in Sec. 2272 Rev. Stat., applicable to this case. I read from the latter part of that section:

“Provided, that in cities of the third grade of the first class when a petition has been regularly presented to the council, asking for the improvement of a street or alley, and the lot or land of one who subscribed said petition is assessed, said assessment shall be a valid lien against said lot or land for the full amount of said assessment, although it may exceed said twenty-five per centum of the value thereof.”

Now it appears that this petition was not only signed by two-thirds of the property owners upon the street, but that it was signed by the plaintiff in error as well, and this language of the statute, it seems to us, is very clear and capable of but a single construction.

It is urged by counsel for plaintiff in error that the case of Birdseye v. Clyde (Vil.), 61 Ohio St. 27 [55 N. E. Rep. 169], is in point here and has some influence upon the construction of this provision of Sec. 2272 Rev. Stat., but we cannot so understand it and we do not think that is true. In that case, the act under consideration was a special act for the city of Clyde, and it contained no limitation whatever; it did not contain a provision, as this section does, that the assessment should be a I valid lien against the property, although it might exceed twenty-* five per centum of the value; it contained no provision upon the sub-* ject.

Our construction of the law was that that being the only act invoked^ (the petition being under the act), and it containing no limitation, there was no limitation, and that, therefore, they might disregard the twenty-five per cent, limitation fixed in Sec. 2270 Rev. Stat. The Supreme Court, however, took a different view; it held that in the absence of any express provision, the limitation fixed by Sec. 2270 Rev. Stat., should be read into it and be considered as a part of the act, and that for the protection of persons proceeding under that special act as well as others. But here we have a case of an express provision applicable to the city of Toledo to the effect that notwithstanding an assessment may exceed 25 per cent, of the value, it shall be valid as against persons signing the petition; and we think, therefore, that the plaintiff has no' ground of complaint upon that score.

We have tried to give this matter careful consideration, but we do not arrive at the conclusion which the court below seems to have reached in respect to this assessment. We see no ground for impeaching its validity, and we hold that it is valid; that the plaintiff has a right to have her title quieted as against the penalty and as against the assessment on account of the bonds issued for the armory, but not as against this assessment. The judgment will be the same as in the court below, with the addition to the claim of the defendant of this assessment, and the costs in this court will be adjudged against the plaintiff and the costs in the court below we think should be paid by the parties equally, i. e., each one-half thereof.