text:
    (Seventh Circuit — Guernsey County, O., Circuit Court
    June Term, 1885.)
    Before Judges Laubib, Woodbury and Fobbett. (Judge Follett of the Fifth Circuit, taking the place of Judge Frazier.)
    John Chambers v. Thos. F. Forsythe.
    C. devised land to his wife for life, and further provided, “ if my wife should die before all my children should become of lawful age, then and in that case all the children that have not left home before they were of lawful age, and have submitted themselves to the control and direction of their mother, shall be entitled to an equal portion of said estate, when the youngest child becomes of lawful age, held:

    1. The children took a remainder in fee contingent upon the widow dying before the youngest child became of age.
    2. The widow having survived the coming of age of the youngest child, the children of testator took a fee in the land as heirs and not as devisees.
    J. 0., a son of 0,, during the life of the widow purchased the interest of his sister, L. O., in said land, and afterward sold and conveyed to defendant all his title, interest and estate, legal and equitable, to said land, as purchased from, and quit-claimed to him by, L. O., describing the deed, together with all and singular the hereditaments and appurtenances as conveyed in the above desci-ibed conveyance, held: This deed did not convey the interest of J. O. in said land as heir.
    Appeal from the Court of Common Pleas of Guernsey County.
   Laubie, J.

William Chapbers died in September, 1841, seized in fee simple of the lands described in the petition.

On the 24th day of July, 1841, William Chambers executed his will, which aside from the formal facts, is as follows:

“ Item. I give'and devise to my beloved wife all my estate, real and personal, during her natural life, that shall be in my possession at my decease, and if my said wife should die before all my children should become of lawful age, then and in that case all the children that have not left home before they were of lawful age, and have submitted themselves to the control and direction of their mother, shall be entitled to one equal proportion of said estate, and to their heirs foV ever, when the youngest child shall become of lawful age, and those that áre not of lawful age at the death of their mother, shall be placed under lawful guardians, and if they remain under the control and direction of their said guardians until they become of lawful age, they then shall be entitled to an equal proportion of said estate, and their heirs forever, with the rest of the heirs above mentioned. Any that have left home before they were of lawful age, or any that shall leave home, or not comply with the requisitions above stated, shall be entitled to the sum of twenty dollars and no more.
“ I also give and devise to- my daughter, Lucinda, that is now married to Isaac Ohaver, and to her heirs forever, an equal proportion of said estate when the youngest child.becomes of lawful age.”

Plaintiff claims that as son and heir of William Chambers, and as heir of his sister Martha, who survived his father, he is seized in fée-simple and has a legal right to the undivided one-eighth part of the lands described in the petition, and that defendant, by purchase, is seized of the other seven-eighths.

Defendant says that he is the owner of the entire fee. That John Chambers is entitled to nothing excepting $20, because, as he says in his. answer, “ plaintiff not then being of lawful age, left home, to-wit: the home of his father, and did not submit himself to the control and direction of his mother, and by reason thereof, and the said provision of said will, plaintiff is thereby forever barred from any share in said estate, and to any benefit of the provisions of said will.”

It appears from the evidence that William Chambers left to survive him his widow, Nancy Chambers, and nine children, including the plaintiff, who was the oldest, Martha, who died in infancy sooa after the death of her father, and Lucinda, the second child. That at the date of said will, John and Lucinda-had married, the latter to Isaac Ohaver, and were living away from the home of said testator. That Lucinda married after arriving at the age of eighteen years, and John was married when he was between the age of eighteen and nineteen years. • John was born in February, 1820, and obtained his majority in February, 1841. John married against the wishes of his father, but finally with his consent, and with his wife lived on the farms of his father until after he arrived at full age, and worked for his father the greater portion of his time, working for others occasionally.

Nancy Chambers died July 13,1883, long after'the youngest child came of age. John Chambers, prior to 1856, bought of Lucinda Ohaver, and she and her husband conveyed to him, her interest in said lands; and on the 6th of March, 1856, John Chambers and wife did receive, release and quit-claim to defendant, Thos. F. Forsythe, by deed, all'their title, interest and estate, legal and equitable, as purchased from, and quit-claimed to them, by Isaac and Lucinda Ohaver, on the 24th day of February, 1854, in and to said land, together with all and singular the hereditaments and appurtenances thereunto belonging as conveyed to them by the above described conveyance, and the reversions, remainders, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever, as conveyed to them, either in law or equity, of, in and to said lands.

It further appears that Forsythe acquired the title of the other six children by quit-claim deeds, in each of which the interest conveyed was specified as the one undivided seventh part.

General principles, as well as the authorities, furnish an easy solution of this case. The intention of the testator, as gathered from the language of the will, and in view of his situation at the time it was made, seems reasonably clear. ' The phraseology is not-apt, and the will'was probably not written by one accustomed to express ideas with legal distinctness. Such is usually.the case in papers of this character.

We are of opinion, that it follows from these facts that William Chambers, by his will, did not dispose of said lands, or the fee thereof, in the event which followed, that his widow should live until the’ youngest child arrived at full age.

That plaintiff, therefore, is entitled, as heir of said William Chambers, his father, to the undivided one-ninth of said lands, and as heir of his sister, Martha Chambers, to the undivided one seventy-second part, in all to the undivided one-eighth part.

We are further of the opinion that by said deed to defendant, plaintiff did not convey the said interest so inherited by him, but only conveyed the same interest which passed to him by the deed of Isaac Ohaver and wife, and that plaintiff is entitled to have partition of said lands as prayed for.

Steele & Rosemond, for plaintiff.

Anderson & Loche and F. W. Wood, for defendant.

Decree for plaintiff.


source: Caselaw Access Project

author: Woodbury, J.

license: Public Domain

text:
    (Seventh Circuit — Noble County, O., Circuit Court
    Dec. Term, 1885.)
    Befobe Judges Laubie, Fbazieb and^Woodbuey.
    Penn & Collins v. Amanda McBride.
    A guardian of the person and estate of a minor, having-received, after giving bond, money belonging to his ward, and converted it to his own use, the subsequent resignation of-the guardian, and his removal to, and re-appointment and qualification in another state, and filing an account there, in which he charged himself with the amount found due by the former court, at the time of his'resignation, will notexonerate the sureties in the first bond, with respect to the money so converted, but they will be liable upon the ground that the guardian failed to faithfully perform his duties.
    Nor will the fact that before such second appointmen he was selected by his ward as her guardian, operate to release such sureties.
    Error to the Court of Common Pleas of Noble County.
   Woodbury, J.

Amanda McBride brought her action against Penn and Collins as sureties on the bond of her guardian, Abraham Enochs, assigning that as such guardian Enochs did not discharge with fidelity the trust committed to him, in that he converted to his own use money received by him as such guardian.

The answer admits the liability of the defendants, unless that liability has been avoided by matters occurring subsequent to the breach of the condition of the bond, and they rely on two grounds of defense, which, for convenience, may both be stated together. The claim is that after said conversion Enochs resigned as guardian, in Noble county, Ohio, and filed his final account as such guardian in the probate court of said county. That thereafter he removed to Wood county, W. Va., when, upon the request of his ward, he was re-appointed her guardian, gave bond, and filed his account as such guardian, in which he charged himself with the amount found due his ward, by the probate court of Noble county, which account was, by said Wood county court, approved and confirmed, and at which time said Enochs represented to said court that the money of his said ward was then in his hands. To this plaintiff replied, and upon such issue the case was tried to the court, and a special finding of the facts made, and judgment was rendered for plaintiff.

It is alleged for error here, that the court below erred in its application of the law to the facts as found by it.

. The claim of the parties is, that the selection of Enochs, by his ward, after his resignation, amounted to an extension of time until the ward should arrive at age; and that the subsequent appointment and accounting by Enochs, satisfied the original breach of bond — that it was equivalent to payment. '

The facts found by the court are substantially as follows: Abraham Enochs was, on the 27th day of May, 1871, by the Probate Court of Noble County, Ohio, appointed guardian of the person and estate of Amanda McBride, a minor aged 10 years, June 10, 1871. Enochs, while acting as such guardian, received and converted to his own use, $634.44 of the money belonging to the estate of his said ward. Thereafter, September 3, 1874, Enochs filed a first and final account in said court and resigned, which account was on the 5th day of October, 1874, confirmed, and a balance of $634.44 found due his ward. Thereupon Enochs removed to W°°cl County, W- Va., tgking with him said Amanda McBride, who was his niece, and who constituted one of his family. On the 9th of June, 1875, said Amanda, at her uncle’s house, at his request, and acting under his direction, but without any fraud on his part, signed a paper certifying that she chose Enochs as her guardian.

Enochs thereupon produced to the clerk of the county court of Wood county, said paper, and was thereupon appointed her guardian, upon giving bond in the sum of $1,200, which he did, August 28, 1875.

On the 2nd of October, 1876, a “ commissioner ” of Wood county, audited, stated, and settled the fiduciary account of of said Enochs, and on the 7th of' November, 1876, reported it to the county court, and on the 7th of February, 1878, no exceptions having been taken, returned it for record. On March 13, 1878, the foregoing settlement having remained in said clerk’s office more than 30 days without exceptions, the same was admitted to record therein. In that account Enochs charged himself as guardian: — “ To balance due ward on settlement of guardian’s' account in Noble county, $600. And after claiming some credits, states a balance due his ward of $434.50.

The court further found, that at the date of signing the paper, Amanda McBride occupied a confidential relation 'toward Enochs, and in signing it simply followed his direction. Enochs filed no inventory in Wood County, and no final account. On .the 28th day of August, 1875, Enochs’was solvent, was worth several thousand dollars inland, $1,000 in personal property and had $700 in money.

Enochs, after converting his Ward’s money, never thereafter separated the amount due her from his own property, or impressed upon it title as a part of his Ward’s estate; or in any way identified ány of his property as the property of his said. Ward, unless the proceedings in said Wood County court amounted to such separation or identification.

Enochs thereafter became insolvent, refused upon demand to pay over, and never received any other property of said Ward.

From these facts the court concluded, that the paper signed by Amanda McBride did not release deféndants; that there was a breach of said bond by the conversion; that such breach was never cured or satisfied, and that plaintiff was entitled to recover.

The position assumed, that a selection by a minor, after arriving at the age of 14 years, of a guardian, operates to release the sureties on the bond of such guardian, prior to that time, is not tenable. It does not operate as an extension of the time within which an action could be maintained, until the majority of the ward. It is not a contract with the ward. It lacks not only mutuality, but capacity and consideration. The fact that the statute authorizes the selection at that age, was surely not intended the change or enlarge the right or liabilities of infants. Such a doctrine would enable any designing guardian to work a release of his sureties prior to the selection.

As to which bond is liable for this money, a different question is presented. Assuming, without deciding, that the matters found amount to a valid appointment and settlement in Wood county, did it amount to a satisfaction of the breach of the bond given in Noble county ? It is said, as Enochs succeeded himself, and as it was his dutyAo pay the money over, the law will presume that he had done so, and that he held this money as guardian in Wood county. But, even if available, does such presumption arise? If he had not converted the money, it would be a plausible claim; but as it is found he had converted this money to his own use before removing to Wood county, the presumption would probably be otherwise, that he continued to hold it as an individual, until the contrary appeared. Moreover it would, at most, be a presumption only, which could be rebutted by proof, and the presumption, if any existed, has been overcome, as appears from the facts found. Wilson v. Wilson, 17 O. S., 150.

Now, the conversion being admitted, what must Enochs have done to cure the breach of his bond? Certainly the least he could do would be to restore to the estate of his ward the amount he had used. This he might have done by loaning the money and taking a note to himself as guardian, or by buying land and taking title to his ward, or possibly by separating that amount of money from his own and declaring it to be the money of his ward. At any rate he must, by some in-equivocal act, have impressed upon that amount of his money his ward’s title — so that, for instance, in case of his death, as between his ward and his estate, the ownership in the ward would be manifest.

This he did not do. He simply filed an account in which he charged himself with balance due ward"on settlement of guardian’s account in Noble county, Ohio,” to which he added interest. Instead of strengthening the claim of defendant, the conveyance of this account supports the claim of the plaintiff, that Enochs himself was the debtor instead of the trustee. The liability of the sureties on the first bond became absolute by the receipt and conversion of the money by Enochs, and neither the second appointment of Enochs and the giving of bond, nor the filing of the account had the effect to exonerate the sureties on the first bond. Eichelberger v. Gross, 42 O. S., 554.

Spriggs & Obey, and M. M. Granger, for plaintiffs in error.

William Chambers, for defendant in error.

The court of common pleas did not err in its conclusions of law from the facts found, and its judgment is affirmed.


author: Shauck, J.

text:
    (Second Circuit — Franklin Co., O., Circuit Court
    January Term, 1886.)
    Before Williams, C. J., and Stewart and Shauck, J. J.
    City of Columbus v. John G. Reinhard.
    Where a person arrested upon a warrant for violating a penal statute of the state, agrees with the examining magistrate to deposit a sum of money, in lieu of bail, and such deposit is accepted, and the prisoner released pending his examination, the money so deposited, having, upon failure of the prisoner to further appear, been declared forfeited and paid into the treasury of the proper county, cannot be recovered back by the depositor. .
    The defendant in error filed a petition in the court of common pleas, alleging that on or about the 31st day of December, 1879, the city of Columbus unlawfully and wrongfully received into its possession $200, the money of the defendant; that on or about the same date, without his consent, it converted the same to its own use; that on or about "the 2d day of January, 1880, he made demand therefor, and that the city then refused, and has ever since failed, to deliver the same to him, and praying judgment for that amount.
    As a first defense the city denied receiving the money unlawfully, and alleged that on or about the day named in the petition, Reinhard and another person were arrested by the public authorities charged with an offense against the laws of the state of Ohio ; that thereupon Reinhard deposited one hundred dollars with the mayor of the city as bail for his appearance to answer said charge, and a like sum as bail for the appearance of the other person; that the persons so accused failed to appear, and that the mayor declared the deposit forfeited, and the amount less costs was deposited in the city treasury. For a second defense it adopted the averments of the first, and further alleged that on or about the 6th day of December, 1881, before the commencement of this action, it was compelled to pay, and did pay, the portion of said ■moneys which it had received, $194.80, to Franklin county, the money having been received as bail in a prosecution under the laws of the state, and igot under an ordinance of the city.
    Reinhard then filed a motion for a judgment for $194.80, for the alleged reason that from the averments of the answer it appeared that sum was due to. him from the city.
    The court granted said motion and rendered a judgment accordingly, and this is assigned as error.
   Shauck, J.

■The practice here brought in review cannot be approved. The motion for a judgment notwithstanding the answer, is said to be authorized by section five thousand three hundred and twenty (5820) of the Revised Statutes. But by its terms, that section applies only to cases where “ all or a part of one or more of the causes of action are not put in issue by the answer.” It has no proper application to a case of this character, where the defense goes to the entire demand. And this is true even though the defense be imperfectly stated, or be insufficient in substance. The proper practice' in such case is to test the sufficiency of the defense by demurrer, and if the defense be held insufficient, to allow the defendant to make such amendment as may appear to be in furtherance of justice.

But, assuming that this motion might have been regarded as a demurrer to the answer, are the facts there stated a defense to the action ?

It appears from the answer and the averments of the petition, which are not denied, that the city paid this money to Franklin county, after its return had been demanded by. Reinhard. It thus not only admitted that it was not entitled to the,money, but it undertook at its peril to decide that it belonged to Franklin county, and not to Reinhard. Whether it decided that question correctly, is the precise question presented.

In support of the claim of Reinhard, it is said that the mayor was not authorized to accept a deposit of money, in lieu of bail. As to the arrest of a person for a violation of a city ordinance, that proposition is distinctly held in The City of Columbus v. Dunnick, 41 O. S., 602. The reasons for this conclusion, as well as its application to cases of arrests for violations of the laws of the state, appear from the provisions of the code of criminal procedure relating to arrest, examination and bail, and from considerations of public policy. Upon the arrest of Reinhard and his companion, the law required that their examination should be had forthwith ; or, if an adjournment became necessary, either that they be committed or detained in custody, or permitted to enter into a recognizance with sufficient surety, conditioned for their further appearance. The decision and the statutory provision referred to, clearly support the proposition made by counsel for the defendant in error, that the contract entered into by Reinhard and the mayor was illegal.

But how can this conclusion avail to support the judgment of the court below? With this conclusion settled, the answer presents a case, in which Reinhard and the mayor entered into a contract, which was not only in excess of the provisions of the statute defining the duties of a public officer, but void as against public policy. They not only entered into sjuch a contract, but they executed it by the actual deposit of the money and the release of Reinhard and his companion. The legal status of parties with respect to a contract of this character is not doubtful. In the, language of the supreme court in Roll v. Raguet, 4 O. S., 400: “ Whenever a contract appears to be illegal, immoral, against public policy, or opposed to the , criminal prohibitions of the state, a court of justice leaves the parties as it finds them. If the agreement be executed, the court will not rescind it; if executory, the court will not aid in its execution.”

In the absence of averment to the contrary, we must presume that the arrest of Reinhard and his companion was lawful, and the contract which he entered into and executed was with an oHicer charged with a public duty with respect to his examination. This case is therefore not embarrassed by any consideration of the doctrine of duress..

Qaren, for plaintiff in error.

Mariott & Hughes, contra.

In either view that may be taken of this contract,'the judgment below was wrong. If the contract was legal, it was in accordance with its terms that, upon failure of Reinhard and his companion to appear, the deposit was forfeited to the county; if illegal, the parties must be left to occupy the position with respect to it which they have voluntarily assumed. For error in granting the motion, the judgment of the court of common pleas will be reversed with costs, and the cause will be remanded to that court for further proceedings.


author: Cox, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    October Term, 1885.)
    Before Judges Cox, Smith and Swing.
    Cincinnati, Hamilton & Dayton R. R. Co. v. J. L. Van Dorn.
    1. A railroad company in constructing its track across a public highway, cannot by employing contractors to do the work shield itself from responsibility for injury done to a traveler ^by the negligence of its contractor. ’ .
    2. The statute giving the railroad company the right to construct its track across a public road, imposes a personalfduty on the railroad company, of care and diligence to the public; and the contractors whom it may employ to do the work, are simply its agents and servants, and it is responsible for their negligence.
    Error to the Common Pleas Court of Haniilton County.
   Cox, J.

J. L. Van Dorn brought his action to recover damages alleged’to have been sustained by him on account of the negligence of defendant, its agent and servants. The plaintiff" avers that his servant having charge of his team of horses, while driving along a public highway over which defendant’s railroad crossed, fell through a culvert, and one of his horses was severely injured.

That it was the duty of said railroad to provide and keep said culvert in good order, but that it suffered the same to become so unsafe, defective and useless, that plaintiff’s servant, by reason of said negligence, and without any negligence on his part, and without knowing it was dangerous, drove on the culvert, and one horse was injured.

Defendant among other things admits that it is a corporation, operating the railroad in question, but denies all other averments.

The testimony tended to show this state of facts :

That the railroad company, at the point where the.injury occurred, being at the crossing of a public road, was constructing a double track. That to do this it was necessary to widen the surface of the road across a culvert running down the highway, and .parallel with the railroad. That the company had let the contract to make the double track to a company consisting of Hine & Price. The 3rd article of the the contract provided that the work should be done under the supervision and according to the direction of the engineer of the railroad company, and his assistants. “ Said engineer shall have full power to'reject and condemn any work.” The engineer of the railroad shall be the final umpire on all questions which may arise relating to the work done under this agreement, and from this decision there shall be no appeal. “ the company reserves the right to suspend the work.” The rails and ties were to be furnished and temporary track laid under the direction of the engineer of the company. By 8th sub. of.contract it is provided that, “ When any work shall in any manner interfere with a traveled road, public or private, the contractors shall keep the same, at all times, unobstructed and safe for travel, and any failure to do so shall be estimated ” by the engineer of the company, who shall deduct the amount thereof from the payments to be made upon their estimates.”

That on.the day when the injury occurred,the servant of plaintiff had crossed the track'and culvert over the public road twice with a loaded wagon, and had noticed that the laborers had taken some of the earth from the top of the culvert; that before crossing it at the time of the injury, he saw another wagon loaded with lumber before his, but that fearing there might be danger he stopped and looked, and was then told by the employes at work to come on, there was no danger. He went on and his horses broke through the culvert injuring one horse severely.

It is claim¿d by the company that they are not responsible for the injury.

1. Because they had let the work to contractors, and had not reserved any control over the mode and manner of doing the work.

2. That the negligence of the plaintiff’s servant contributed to the injury.

3. Refusal of the court to give certain charges.

We think that, by the contract, the company did reserve the control of the mode and manner of doing the work. The 3d, 5th and 8 th sections clearly evince that. The railroad company had a right, by Sec. 3284, Rev. Stat., to construct its track across the public highway; but in doing so it was its duty, without unnecessary delay, to place the road in such condition as not to impair the former usefulness. This was a duty imposed by statute and attached to the exercise of the right, “ and such duty must be performed,” it cannot relieve itself from liability through the intervention of an independent contractor.” High v. R. R. Co., 39 O. St., 477.

“ In case of an apparent conflict in interference between the rights of the railroad and the public to use the highway, each must defer to the other in its reasonable use of the crossing; or, in other words, each must exercise reasonable care not to interfere unnecessarily with the use of the road by the other.” P., Ft. W. & C. R. R. Co. v. Mauer, 21 O. St., 429.

This care is a personal matter to the railroad, and cannot be delegated to another so as to shield the.company from liability. For the purpose, therefore,of occupying the public road for this track, the workmen were under the direction of the railroad company, and they should have exercised reasonable care not to interfere with the use of the road by the track. While working at it, they had the best means of observing”whether it was safe to cross over, and when they notified the servant of plaintiff that it was so, he was warranted in crossing in the belief that it was safe.

Did the negligence of plaintiff’s servant contribute to the injury ?. We think not. He had crossed on this place before on the same day. Had seen another wagon go just before him at the time of the injury ; before starting to cross had stopped and looked to see if it was safe, and was notified by the workmen to do so. In this action we think he did what any prudent man would have done.

Ramsey, Maxwell & Matthews, for plaintiff in error.

J. T. Harrison, for defendant in error.

Judgment of Common Pleas affirmed.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan’y Term, 1886.)
    Before Judges Cox, Smith and Swing.
    A. Deters v. Commissioners of Hamilton County R. A. Moody v. Same J. N. Rabenstein v. Same H. Kuhl v. Same
    (No. 163);

    (No. 164);
    (No. 165);
    (No. 166).
    1. Where the commissioners of Hamilton county have appointed persons to act as janitors and night-watchman for the office of the county recorder, against whose capacity or fitness no objection is made by the recorder, but he refuses to allow them to discharge such duties, and appoints other persons who do so act, such persons are not entitled to be paid for such services from the county treasury.
    2. A person appointed by such recorder as “paper custodian,” to take charge of and keep in order the records of said office, after they are made up, is not entitled to be paid for such services from said' treasury, but must be paid, if at all, from the allowance made to the recorder by the court of common pleas, to pay the assistants of such officer, under the provisions of See. 1343, ftev. Stats.
    Error to the Court of Common Pleas.
   Smith, J.

The questions presented in cases Nos. 163 and 166 are precisely the same, and arise in the same manner. Those in Nos. 164 and 165 are slightly different, but are substantially the same, and they may all be disposed of at the same time.

Kuhl and Deters each presented to the county commissioners for allowance, a bill amounting to $180, for twelve weeks’ services, said to have been rendered by them respectively as janitors in the recorder’s office. These bills having been rejected by the commissioners, an appeal in each case was taken to the common pleas, and petitions were there filed, setting up this state of fact. That of Kuhl stated that the defendants were indebted to him in said sum of $180, for twelve weeks’ service rendered by him as janitor of the office of the county recorder, he having been appointed as such by Rabenstein, the recorder, who had approved the bill, which had been rejected by the commissioners.

The answer of the defendants alleges that Rabenstein became the recorder in January, 1883, and that his office was then in the court-house of the county. That the defendants and the board of control, during 1883 and 1884, and to this time, claimed the right to appoint suitable janitors, necessary to keep said office in order, and had appointed men, who during 1883 and part of 1884 had actually acted as such, but that after the burning of the court-house, and the selection by the defendants of other offices for the recorder, viz., since May 1, 1884, he had claimed the right to appoint the janitors for his office, and had asked the commissioners to approve of Kuhl and Deters as such, which they at once refused to do, and have always since refused to recognize them as such. That Rabenstein during all this time, from May 1, 1884, has refused to allow the janitors appointed by the defendants to care for his office, or to discharge their duties as such (which they have always been ready and willing to do,) and for which the county has been paying them; but on the contrary, he has had Deters and Kuhl to perform said duties, and it is for the work so done, for which they sue.

To this answer the plaintiff filed a general demurrer, which was overruled by the court, and the plaintiff not desiring to further plead his action, was dismissed. The pleadings and judgment in the Deters case were the same.

The only difference there was in the Moody case, who sued for services as night-watchman, is, that the commissioners aver that they had appointed a sufficient force of night-watchmen to guard the recorder’s office, and' that such duty had always been faithfully.performed by these appointees; but that Moody also appeared regularly on duty, under the appointment of the recorder, and claims his pay therefor; but that he has never been recognized by them as having any such right. A demurrer to this answer was overruled.

The additional allegations in the petition of John N. Rahenstein are, that his duty was to take charge, as “ paper custodian,” of the books and papers of the recorder’s office after the records were completed, and that he had no care or custody of them before this was done.

To this petition a demurrer was filed and sustained by the court, and the petition dismissed, and it is now sought to reverse all of these judgments for error in sustáining the demurrer to the petition of Rabenstein, and the overruling of the .demurrers to the answers of the commissioners in the other cases.

The question thus raised in three of these cases is, whether the recorder has a right to appoint such officers as janitors and night-watchmen for his office, and thereby to oblige the county to pay such persons for services so rendered, under the circumstances stated in the answers of the commissioners.

If so, it must be by reason of some express provision of law, for without it, it is clear that no such officer’has any right to bind the county by his contracts. This is the province of the commissioners of the count}'.

It is conceded, as I understand, by the counsel for the plaintiff in error, that such is the case in all of the counties except Hamilton and Cuyahoga, which it is claimed stand on a different footing on account of some special legislation as to the fees of county officers in those counties, and the changes made in the general law by reason of this.

Section 1139 provides, that the office of the county recorder shall be kept in such room or rooms at the county seat as the commissioners provide, and section 859, that offices for the county officers, shall be provided by the commissioners when needed.”' It is argued by the counsel for the plaintiff in error, that by virtue of these provisions, and of the fact that the law gives to him the care and custody of the records and papers- of his office, that the right of the recorder to the room so provided for him is exclusive, as much' so as it was under the statute of June 1, 1831 (S. & C., 1228), which expressly provided that “ such offices should be for the sole and exclusive use of such officers as they may deem expedient,” and that he is, therefore, not bound to have janitors or nightwatchmen on duty in the same, under the employment of others and in whom he has no confidence. The statute referred to was long ago repealed, but if it be admitted that the law now in force has the same meaning as the old law, and that the claim of the counsel, that the officer is not bound to have persons in or about his office who are not trustworthy, is correct, as we think it is, what then ? Does that, of itself, authorize him to employ persons at the expense of the county to do the work, when the county commissioners upon whom' the law imposes the duty of looking to the financial interests of the county have employed.men, against whose qualifications for the position there is no question raised, and who are ready and willing to perform these duties ? We think not, in the absence of any law giving such right.

It is claimed that this is done, impliedly at least, by section 1848, which points out the mode in which the deputies, clerks, book-keepers and other assistants of the county officers in Hamilton county are to be paid, to-wit, out of the sum fixed for that purpose by the judges of the court of common pleas; and which further provides, “that the county commissioners shall allow and order to be paid, as other claims against the county, all other reasonable expenses, necessary to the proper discharge of the duties of any of the above named officers,” of whom the recorder was one.

What are these other reasonable expenses to be so paid ? It certainly includes, we think, the proper office furniture, books for record, stationery and matters of this kind, and we think, might fairly be held to include the services of a janitor and night-watchman, if necessary, unless that kind of'expense is. provided for under another section, to which reference will be made. But how are these other articles or services to be furnished or contracted for, and by whom? Does the recorder, under this section, have the right by his simple engagement with another to bind the county? Or does not this duty of furnishing such things in the first instance devolve upon the commissioners, as the board having, by the law, the charge of the financial affairs of the county? The latter supposition, we think is the correct one, and that the county recorder or other county officer is bound to apply to this board for the furnishing of matters of this kind; and that if thejuare in fact so furnished, and are suitable and proper for the purpose for which they are needed, they are to be received; and we think this principle applies even to the case of a janitor, who it is claimed should be a man in whom the recorder has confidence. And on this point we heartily concur in the view of the learned judge who delivered the opinion of the court in the case of Mayhew v. The Com’rs of Ham. Co., 1 Disney, 186. Judge Spencer on page 196 says: “ A proper degree of courtesy should doubtless be observed by the commissioners, in not appointing persons for the performance of these services who are obnoxious to, or have not the confidence of the judges of the court ” (in that case the question arose as to a janitor for the probate judge), “or where the individual appointed was incompetent or not trustworthy; but to render such appointment a matter of legal complaint, it must be of such a character as to wholly fail of the object intended, in which case it would be the duty of the court to cause the obnoxious person to be removed,” or, we may add, that in such case, in our judgment, the officer, after application to the commissioners for the appointment of a suitable person, and a refusal by them, could have the work performed by a proper person, and that he himself, rather than the person who performed the services would be entitled to recover the reasonable value thereof.

But aside from the authority which the commissioners impliedly have from the statutes, which make them the financial agents of the county, and with power to contract therefor, and the absence of any statutory provision giving to the recorder any such power, we are of the opinion that under a fair construction of section 1002, as amended January 31,1881, Yol. 3 Rev. Stats., 52, there is an express authority conferred upon the commissioners to appoint such janitors. It declares that the county commissioners shall provide suitable rooms in the the court-house for the board of .control, “ and may employ a county engineer, a superintendent and such Watchmen, janitors and other employees, as may be necessary to the care and custody of the court-house and jail.”

Louis Remelin, for plaintiffs in error.

Rufus B. Smith, County Solicitor, for commissioners of Hamilton county.

We think this section is not to have the narrow construction chftmed, that the janitors there spoken of are for the courthouse only, and that it does not apply to the rooms in which the offices are kept. At the time of the passage of this section (January 31, 1881, and which applied only to Hamilton county), as a matter of fact, the office of the recorder (together with those of all the other county officers) was situate in the court-house, and it was doubtless intended by the legislature in question to give this power to the county commissioners.

We are aware that this holding is in conflict, apparently at least, with the decision of the district court of this county in the Dalton case, reported in 9th Law Bulletin, 322. But that decision was made and founded on the terms of a statute since repealed, and in the amendment to which the emphatic words, on which the court seem to rely, were omitted — that is, “ that the officer to whom the room is assigned is to have the sole and exclusive use thereofWe think too' much force was given to this expression — under that law, as under the present, while the officer has the control of his office, it is for public purposes, and not to subserve his private ends. And the views we have expressed, we think are those taken by the superior court in 1 Disney, 186, to which we have referred.

As to the Rabenstein case, in which the suit is brought for service as paper custodian, we are of the opinion, that under the terms of section 1343, before quoted, he is such an “ assistant” as must be paid from the allowance made to the recorder to pay for his assistants. The recorder is the custodian of all books and papers belonging to the office, and it is his duty to care for and protect them. It is true that there is no compensation in terms fixed by the statute for this particular service, but it is compensated for by those fees which he receives for other services.

We think that the judgments in all of these cases should be affirmed with costs.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Oct. Term, 1885.)
    Before Judges Cox, Smith and Swing.
    John Venable v. The State of Ohio.
    1. Since the passage of the act of March 20, 1883, abolishing private seals, 3 Kev. Stats., page 2, it is not necessary to the validity of a bill of exceptions in a criminal case, that it be sealed by the trial -judge.
    2. A special charge, applicable to the case on trial, and stating the law correctly', can not properly be refused by the court, because asked for by the defendants after the argument and the general charge to the jury.
    3. Where a defendant is indicted for shooting another, with intent to kill him, or to wound him, and the evidence submitted tends to show an unprovoked, felonious and dangerous assault by the prosecuting witness upon the deiendant, immediately prior to the shooting, and that it was necessary" for the defendant to fire-the shot to save his life, or prevent great bodily harm to himself, it is error for the court to charge the jury, “Nor does the right of self-defense arise, if the person can reasonably rely for protection upon legal authority, or can reasonably get out of the way of danger,” and to refuse to charge the jury, when requested to do so by defendant’s counsel, that, . “ Where a person in the lawful pursuit of his business and without blame, is violently assaulted by one who manifestly or maliciously intends or endeavors to kill him, the person so assaulted, without retreating, though in his power to do so, without increasing his danger, may kill his assailant, if necessary to save his own life, or prevent enormous bodily harm,” if there be no equivalent language in the charge given to the jury.
   Smith, J.

(Reportéd by himself.)

The errors assigned in this case, are that the trial court erred

1. In refusing to grant the defendant below a new trial.

2. In the charge given to the jury, as excepted to, and in refusing to charge as requested by the counsel for the defendant; and

3. In holding that the wife of defendant was not a competent witness, and in refusing to allow her to testify in the case.

We are met, however, at the outset by the suggestion of the prosecuting attorney that there is no legal or proper bill of exceptions in the case, and therefore, that the court can not consider the errors assigned.

The bill in question is signed by the trial judge, and it recites that it is sealed by him, but no seal appears thereon. Is this fatal ?

-Section 7304, which provides for a bill of exceptions in criminal cases, directs that it be signed and sealed, differing in this respect from what is required as to bills of exceptions in civil cases, which only need to be signed. Section 5302.

The case cited from 35 O. S., 482, distinctly decides that when the statute requires a bill to be sealed, it must be complied with or it cannot be considered as such.

Is this provision affected by subsequent legislation ?

Prior to March 29,1883, the seal so to be affixed was the private seal of the judge signing it, and section 4 of the Revised Statutes, provided that a scroll seal was valid and sufficient.

On the 29th of March, 1883, an act was passed amending this section 4, abolishing all private seals, and providing that the affixing of what has been known as a private seal to any instrument whatever shall not give such instrument any additional force or effect, or in any way change the effect thereof. (3 Revised Statutes, page 2.)

The effect of this, we think, is to make good as a bill of exceptions in a criminal case, one signed but not sealed.

The action of the court in excluding the wife of the defendant as a witness was clearly right. 20 O. S., 333.

Did the court err in refusing to charge as requested, or in the charge as given, and excepted to?

Preliminary to this question as to whether the court erred in refusing to give the special charge asked for after the regular charge was given, it is claimed by the prosecuting attorney that even if the charge requested was good law, and applicable to the case, the court was not bound to give it, because it was not asked for before the argument, or the giving of the regular charge.

We do not so understand the law. Section 7300, Rev. Stats., points out the mode in which the trial is to be conducted.

1. Written charges may be submitted to be given before the argument.

2. General charge — There is no express provision for asking a special charge after the general one, but the practíceos uniform, so far as we know, to do so, and we think it isjrecognized in numerous cases, and is a wise and reasonable one. Counsel are authorized to wait and see what the charge is, and if it is not satisfactory, or anything be omitted, then to calljthe attention of the court to such points, and request charges.

We are brought then to a, consideration of the question, whether the errors assigned as to the charge are well taken.

That the points made may be fully understood, it is necessary to make a brief statement of the case.

The defendant was indicted for shooting Podesta with intent to kill him, and in a second count with shooting him with intent to wound him; and was convicted on the latter charge, and sentenced by the court to imprisonment in the penitentiary. The defense made under the plea of not guilty was, that he had acted in the proper defense of himself, against a felonious assault made upon him by,the prosecuting witness.

The evidence in the case clearly tended to show this state of fact: That within a few months prior to this shooting the house of Venable had, on several occasions, been wrecked, as-he terms it, by a mob, headed by Podesta; that on these occasions he had been shot several times and badly beaten,' and that he knew on this day that Podesta had previously threatened to kill him.

That on this night the prosecuting witness came to the-house of the defendant in a drunken and raging condition, and demanded of him the keys of a building to which he had no right whatever, and which were lawfully in the custody of Venable; that as he demanded them, he stood over the defendant and threatened to kill him, using the most opprobrious epithets towards him; that Venable asked him to go away and not bother him further; but on his refusal to-give Podesta the keys, the latter struck him on the head with a brick which he held in his hand, badly injuring him, and that the defendant had done nothing whatever to justify such conduct; that thereupon a scuffle ensued between them, and the defendant managed to get away from him and inside of his door, near which he was standing. At this time Podesta. struck at him with a knife which he had concealed in his sleeve, the blade being open, but it missed him ; that the blow on the head so stunned the defendant that he hardly knew what he was doing, but succeeded in getting inside of the door, Podesta following him.

That when the defendant got inside, he reached for and got a pistol which was lying on a shelf behind the counter near the door, and Podesta at this time, holding a bowlder in his hand, and only a few feet distant, was attempting to force open the door, or what was left of it, the glass window in it being demolished, and just as Podesta was in the act of hurling the bowlder at him, the defendant fired the pistol at him, believing it was the only way in which he could save his life.

There being evidence, I say, strongly tending to show such' a state of facts, the court charged the jury upon the law of self-defense, and in the main, as we think, fairly and correctly. But it is urged by counsel for plaintiff in error that in one branch of the general charge, and in the refusal to give the special charge asked for, the court erred to the prejudice of the defendant below.

The portion of the general charge referred to is this: “Nor does the right of self-defensé arise if the person can reasonably rely for protection upon legal authority, or can reasonably get out of the way of danger.”

And the charge asked to be given, and which was refused, is this:

“ Where a person in the lawful pursuit of his business, and without blame, is violently assaulted by one who manifestly ■or maliciously intends or endeavors to kill him, the person so assaulted, without retreating, although it he in his power to do so without increasing his danger, may kill his assailant, if necessary to save his own life, or prevent enormous bodily harm.”

As the charge thus requested is the exact language of the syllabus of the decision of the supreme court, in 29 O. S., 186, and has not since been overruled or modified, there can be no ■controversy but that it is the law of this state, and that all the •other courts are bound by, and must adhere to it. And this being so, the language of the general charge, which I have ■quoted, as we understand it, is in direct conflict with it, and ■ought not to have been so given to the jury. The trial judge, as the bill of exceptions shows, when asked to give the special •charge, does not deny, but asserts that it was good law, but declined to give it to the jury on the ground that it did not apply to the case, and that the jury-had been sufficiently instructed. There is nothing equivalent to the charge asked for in the general charge; but, on the contrary, the language used in it is, as we think, in direct conflict with the law laid down by the supreme court in the syllabus quoted.

J. O. Harper and Howard Ferris, for Venable.

Pugh and Jordan, Prosecuting Attorneys, contra.

But why did it not apply to the case on trial? We are utterly unable to see any reason for so holding. If the evidence did tend to show the state of fact which I have recited, and which the bill of exceptions clearly shows to be true, it certainly was pertinent to the case, and should have been given on request, and the court erred in not doing so.

The judgment will be reversed with costs and remanded for .a new trial, or such proceeding as may be warranted by law.


author: By the Court.

text:
    (Second Circuit — Franklin Co., O., Circuit Court
    January Term, 1886.)
    Befokb Williams, C. J., and Cox and Shatjok, Judges.
    Minor P. Tone’s Executors v. The City of Columbus et al. and Sixty-one other Cases.
    .Street improvement under an unconstitutional act — Insufficiency of petition to authorize ordinance therefor — Wbo by participation in causing sucb improvement to be made, or by silence while same is being made, are estopped to assert invalidity of proceedings — Application of doctrine of same cases in 39 O. S., 281.
   By the Court.

These suits are brought by owners of property abutting on North High street, in the city of Columbus, to enjoin the collection of assessments for the improvement of that street. The act of March 30, 1875, under which that improvement was made, was declared unconstitutional in State ex rel. Columbus v. Mitchell et al., 31 O. S., 592. In view of that decision it is admitted that the assessments are without legal validity. Their validity is further denied by the-plaintiffs upon the ground that the ordinance for the improvement was passed without a petition therefor by the owners of two-thirds of the property abutting upon the proposed improvement, as required by the act. But it is claimed by the defendants that all of the plaintiffs, either by active participation in causing the improvement to be made, or by silence with such knowledge as made it their duty to speak, are estopped from asserting the invalidity of the assessments. Some of these cases have been considered by the supreme court, and the views of that tribunal upon the general questions now presented are reported under the same title in 39 O. S., 281. The application of those views to the mass of evidence submitted is the duty before us.

The first question in logical order, if not in importance, is whether the owners of two-thirds of the feet front of the property abutting on the street to be improved, petitioned the city council for the privileges of the act of March 30, 1875, as re-required by its twenty-fourth section. Without stating the conflicting claims of counsel as to what may constitute a petitioning, within the meaning of this section, we think it clear that it implies the presentation to. the city council of an instrument of writing or printing, containing a prayer for the privileges of the act referred to, and signed by the owners of abutting property. The general and well-settled meaning of the word “ petition,” as it is used in the language of the law, implies a request in writing. Such was undoubtedly the understanding of the parties at the time of the passage of the ordinance whose validity is here questioned. Many property owners signed and presented such petitions. The city council caused the names of the persons who so signed to be arranged alphabetically, and these alone were regarded as petitioners. When questions were raised as to the sufficiency of the petition, the inquiry was whether those who have thus signed were the owners of two-thirds of the abutting property. One who did not sign a petition presented, cannot now be put in the attitude of a petitioner by evidence tending to show that he had at some time vaguely and aimlessly declared that he was in favor of the improvement.

Limiting our inquiry to the sufficiency of the petition so signed and presented, we encounter numerous questions as the property represented by the names which appear upon the petition.

In some cases husbands affixed their own names to the pe-. tition, intending thereby to represent property belonging to their wives. As to some of these instances it is insisted that the signing is valid, in view of the evidence tending to show that the owners had expressly authorized their husbands to petition for them. In these cases it would be idle to inquire whether such authority was given, since it is apparent that it was never exercised. The husband’s signature did not constitute it the petition of the wife.

In other cases of this class it is insisted, that the wife has become a petitioner by reason of a ratification signed and presented to the city council after the passage of the ordinance. Whether such ratification may or may not serve to estop a plaintiff who has thus ratified, such act would seem wholly insufficient to give validity to g, petition otherwise insufficient. A sufficient petition was necessary at the time of the passage of the ordinance, and no one could ratify to the prejudice of another. One thus ratifying might thereby say that as against her the petition should be deemed sufficient, but she could not thereby change the fact that it was insufficient.

The plaintiffs assert that others whose names appear upon the petition were not petitioners, because their names were not signed by themselves. In some of these cases there is no evidence of the authority of those who affixed the signatures of the property owners, in some, such authority is shown, while in others it is shown that there was no such authority. The regularity of the proceedings of the city council is presumed, and the plaintiffs are charged with the burden of proving the irregularity which they allege. And this is true, although it calls upon them to prove a negative. But this presumption is not so far reaching as counsel for defendants claim.

One who, upon the issues joined, is charged with the burden of proving a negative, is not bound to furnish plenary proof, that is, proof excluding every hypothesis upon which the fact might be otherwise than as he asserts it to be. Consideration is due to other presumptions of law and to the rules which take account of the convenience of parties in offering their evidence. Where the plaintiffs have shown that the owner’s signature was not affixed by herself, it' is the duty of the defendants who assert the validity of the signature, to show that it was affixed by some one who had authority. We do not adopt the view that such signing must be the personal act of the property owner as is argued upon the authority of the Rapp case, 14 Law Bull. It may have been properly so-held in that case in view of the provisions of the statute there considered; but those provisions are not found here. Upon the other hand we are not at all inclined to adopt so lax a rule in this respect as would be necessary to give validity to signatures affixed without any showing of authority. Certainly, the rule upon this subject must be the same whether the assessment that may be levied be large or small;. but the fact disclosed by the evidence, that in making this improvement, assessments have been levied greatly in excess-of the value of some of the property after the improvement, is an admonition that such rule ought to give full effect to the requirement of the statute that the property owners must petition for the privileges of the act.

Other questions arise out of the evidence, showing that according to the deed record, some of the petitioners conveyed away their property after signing the petition, but before the passage of the ordinance, and that others did not become owners of abutting property until after the passage of the ordinance. The act contemplated a petition signed by those who were owners of the property at the time of the passage of the ordinance. In view of the rule exempting the plaintiffs from offering plenary evidence, they were relieved of the burden incumbent on them when they showed from the public record that the petitioners in this class were not then the owners of abutting property. It then became the duty of the defendants, who asserted ownership contrary to the record to establish it.

Other exceptions of the defendants are founded on the refusal of the Master to count the signatures of the owners of undivided interests in abutting property, where the co-tenants did not sign. Since a tenant in common may, by sale and conveyance, exercise the supreme act of ownership with respect to his undivided interest, we do not see why he may not, as to that interest, be regarded as the owner, within the meaning of this act. While it is true that upon partition, on account of improvements or other causes of inequality in value, the signer might not become the owner in severalty of a frontage equal in proportion to his undivided interest in the whole, this, perhaps, does not constitute a valid objection to treating him as the owner of such proportion.

Another exception is founded upon the refusal of the master to count the city of Columbus as a petitioner, and representing a frontage of seventy-eight feet of its property abutting on the improvement. It is admitted that the city is not a formal petitioner. The argument in support of this exception is that the law looks at the substance of things rather than their form, and that the city substantially petitioned when the council passed the ordinance in pursuance of the petition. This argument does not reach the desired conclusion. It assumes that the city became a petitioner upon the final passage of the ordinance, while a sufficient petition was pre-requisite to every step in its passage.

Upon the exceptions of the defendants, two hundred and eighty feet will be added to the frontage represented upon the petition as found by the Master.

Upon the exceptions of the plaintiffs, for reasons above stated, names representing a frontage of two thousand five hundred and fifty-eight feet will be stricken from the petition.

One of our number is of the opinion that the presumption in favor of the validity of the petition ought to be extended so far as to require the counting of two of the names so stricken off, while a majority strongly incline to the opinion that if a careful application of the correct rule were necessary, it would result in striking off other names than those embraced in the above deductions. But these differences of opinion are unimportant, as we all agree that the petition was clearly insufficient to authorize the city council to pass the ordinance in question, even upon the assumption that the act was constitutional.

It results from an application to this conclusion of the third and fourth propositions in Tone v. Columbus, that no one who signed the petition is thereby estopped from objecting that the proceedings of the city subsequently to the petitioning were in violation of the requirements of the act. If any of the plaintiffs are estopped from alleging the ireguiarities in the proceedings of counsel as set forth in their petitions, the ground for such estoppel must be found in their active participation in the improvement, or in their culpable silence after the passage of the ordinance.

By the same authority, we may say without comment that all of the plaintiffs who voted at the election of commissioners to take charge of the improvement, are thereby so es-topped. Our attention has been called to no exceptions to the finding of the Master in this respect, and we assume that he has correctly reported the plaintiffs who then voted.

A majority are of the opinion that those who presented to the council, subsequently to the passage of the ordinance, a ratification of the acts of their husbands who had previously signed the petition with their own names, intending thereby to represent the property which belonged to those who so ratified, are also estopped. This, because a ratification after the passage of the ordinance was an active participation in causing the improvement to be made which, according to the doctrine of the Tone ease, is a waiver of the irregularities now complained of — an act which assimilates their position to that of those who voted at the election of commissioners.

Those of the plaintiffs who have derived title from those who voted for commissioners, or ratified the petition as above indicated, are subject to the same rule that would have been applied to their grantors.

There are twenty-three of these property holders who, in the arguments, have been called the silent ones,” who claim that the city should be enjoined from collecting the amount on this property, for the reason that the owners of two-thirds of the feet front of abutting property did not sign a petition to council for the improvement, and therefore in passing the ordinance the council acted without jurisdiction.

As to this class, the city in substance says that the ordinance was passed for the benefit and convenience of the plaintiffs ; that they had due notice of its passage; that the cost and expense of the improvement were to be paid by assessing their property; that they had knowledge of the subsequent proceedings under the ordinance and that the improvement was being made, and that they knew that some of the owners of abutting property claimed that the proceedings of the council were irregular and defective, by reason of the fact that the owners of two-thirds of the property had not signed petitions ; that it was at all times within the power of plaintiffs to prevent the making of said improvement by legal procedure, and that in the exercise of good faith it was their duty to so prevent it, unless they intended to pay their assessable portion; but that instead of taking any such procedure, they remained idle and silent and made use of no means to prevent the election of commissioners, the letting of the contract of such work on said improvement, the issue and sale of bonds to pay for the cost of the same, or ■any one of these various measures. That the property of plaintiffs was greatly improved and increased in value by said improvement.

The city states that before the passage of the ordinance permitting the improvement, the city used due diligence and made use of every means reasonably within its power, to ascertain whether said owners of two-thirds had signed said petition ; and on the passage of the ordinance the city council duly found and determined that the owners of the requisite number had signed, and acted in good faith in the belief, and assumed that the requisite number had signed; and that after the passage of the ordinance certain memorials and remonstrances were presented to the council, setting forth that a sufficient number had not signed; and thereupon said city council caused new and additional inquiry to be made, and were again assured by the reply of its engineer that the requisite number had signed the petition, and so it avers, that the requisite two-thirds did, in fact, sign said petition, and that prior to the completion of the improvement, the plaintiffs never objected to the making of said improvement, and never disclosed to said council, or said board of commissioners, any intention on their part to resist the payment of an assessment on their property therefor.

And the city claims, that these plaintiffs, by silence and acquiescence with knowledge, are estopped from setting up the invalidity of the ordinance, permitting the improvement, and the injunction should be dismissed.

To estop persons, coming under this class of silent ones, from, asserting the invalidity of the ordinance and of the assessment, the supreme court in the case of Tone v. City of Columbus, 39 Ohio St., have decided that it must be shown that the owner had knowledge,

1. That the improvement was being made;

2. That it was intended to assess the cost thereof, or some part of it, upon his property ;

3. That the infirmity or defect in the proceedings existed which he is estopped from asserting;

4. It must appear that some special benefit was derived from said improvement, which it is inequitable under the circumstances he should enjoy without compensation. While such owner is presumed to know of the invalidity of the statute,, a presumption of knowledge does not exist as to those who are silent merely, with regard to the illegality of the proceedings of the council or the public officers, which they have the right to assume are regular until they have knowledge to the contrary.

Unless the facts which amount to an estoppel are shown, the case of Mitchell, in 31 Ohio State, and Tone, in the 39th, settle the question that the plaintiff is in time with his petition when the tax is placed on the duplicate or sought to be enforced against him.

The question now to be determined is, whether the plaintiffs come within the rules which the supreme court say, must ■prevail in order to estop them.

So far as the allegations of the petition in these cases are concerned, they are substantially the same as those in the Tone case, except that none of them signed the petition.

In that case the court say: “ It is i nsisted, however, that the plaintiffs in error now resisting the payment of the assessment, are estopped by their silence which it is claimed amounts to acquiescence, or a waiver of the infirmities in the statute and the proceedings under it. The claim is that sufficient appears to establish such estoppel, to-wit, that the plaintiffs had knowledge that the work was contemplated, ordered and completed; that they had knowledge also that the city contemplated that the cost of the improvement should be assessed upon the abutting property, and during all the time from the initiatory steps until the completion of the assessment they were silent.”

But the court say: “ There is an important element of estoppel wanting here, viz.: knowledge that the city council was acting illegally, or, in other words, knowledge of the facts upon which they now rely. The doctrine, that a person remaining silent when he ought, in the exercise of good faith, to have spoken, will not be allowed to speak when in the exercise of the same good faith, he ought to remain silent, cannot be extended to a person who is innocently ignorant of the fact upon which his right depends. “ How could the property owner speak of the defect which it is claimed he has waived by his silence, unless he had knowledge of the defect. To hold him responsible for his want of knowledge, facts must be shown which made it his duty to inform himself. To sustain an estoppel, because of omission to speak, there must be both the opportunity and the duty to speak; the party maintaining silence must be in a situation to know that some one is- relying on his silence, and acting, or about to act, as he would not have done had he spoken and asserted his right. And in the absence of any evidence of previous knowledge on his p?.rt of their unlawful action, he is on time with his protest when they proceed to deprive him of his rights under such proceedings.” And the court says “ there can be no waiver of this defect, and no estoppel which will prevent him from asserting it after the work is completed, if he is ignorant of it before the work is completed, unless indeed circumstances exist, which made it his duty to inform himself, or which show his ignorance to be culpable.

“Just how this knowledge is t© be shown, it is not easy to say; that it may be shown by circumstances in this as in any other case where knowledge is an essential element, is no doubt true. Infirmities in the public statute he may be presumed to know; but not in the proceedings of the council or municipal officers, whose acts, as we have seen, he has the right to presume are regular.”

These rules thus laid down by the supreme court, must be the guide for us in the determination of the questions at issue. By these rules then, plaintiff has a right to presume, that the acts of the council and the municipal officers in this improvement are all regular.

We think it may be conceded that plaintiffs had knowlédge that the improvement was being made, for most of them resided in the neighborhood, and many of them saw its progress from day to day. But it has not been shown “ that plaintiffs hád knowledge that it was intended to assess the cost thereof, or some part of it, upon their property,” While the knowledge may be presumed against those who petitioned for the improvement under an act which only contemplated the assessment to be made on the abutting property, the presumption will not attach to one not a petitioner; but knowledge of the fact must be brought home to him and proven ; “because,” as the court says, “cities may improve the public streets out of the general fund, and without special assessment.”

Has it been shown that they had knowledge that the proceedings of council were invalid for want of a jurisdiction conferred on it by the petition of the owners of two-thirds of the property ? Or have such circumstances been proven to exist which made it their duty to inform themselves, or which show their ignorance to be culpable? The only evidence tending to show knowledge of the defect is, that there were rumors among the property owners that the necessary two-thirds had not petitioned; that meetings were held at different times and places on the line of the street, at which speeches were made and memorials and remonstrances read, and sent to the authorities, setting forth that as the opinion of the remonstrants and memorialists, such was the fact. On the other hand it is proven, that upon the receipt of these memorials, the city coun&il appointed committees to examine the matter; had the city engineer specially examine titles and plats and make measurements, and upon their report re-asserted to the public that the necessary two-thirds had petitioned, and that the council consequenly had jurisdiction to pass the ordinance. Neither these remonstrances, memorials or rumors can be said to have conveyed knowledge that the ordinance was defective. At best they were but evidences of the divided opinion of the people, which opinion was for the time put to rest by the action of the council, after an apparently full investigation, officially announcing that a popular opinion as to the defect was unfounded.

During all these ten years of antagonism and litigation, it cannot be said that up to this time, either the property owners or the city council knew of the invalidity of the order. It was found, as before stated, by the council, its committee and agents, that the necessary number had signed. There was no decision upon that point in either the Mitchell or Tone case; the Master to whom the case was referred, by the court of common pleas, found the necessary number of petitioners, and the court of common please confirmed this finding in that respect. So that until to-day it cannot be said, that by any decision of a court having jurisdiction of the matter, or body of competent men who have examined it, it has been anything else than an open question, the true state of which no man knew.

How, then, can these property owners, many of them having little education, some only reading or speaking a foreign language, be said to have known it ?

We are constrained, therefore, to hold that these silent ones had no knowledge of the invalidity of the ordinance.

Have circumstances been found which made it their duty to inform themselves of the defects, or which show their ignorance to be culpable ?

The answer to this question would depend largely on whether they had knowledge that the act was to affect them or their property. For negligence is not in law imputed to any person, who does not inquire, or remains ignorant, of a matter which does not concern him. If they had that knowledge, and any question as to the legality of the proceedings were raised, then it would be the duty of the owners to make reasonable enquiries to ascertain the facts, and to communicate such information to the parties about to act, unless they already had it, as would prevent them doing acts which they would otherwise do'without said knowledge. But what are such reasonable efforts to inform themselves, as the circumstances of this case would devolve on them ?

The testimony shows that the street to be improved is about 3^- miles long, or a total frontage of seven miles — owned by over one hundred different owners, some of them minors, married women, doweresses, non-residents, lots divided into all sizes, from 40 feet front to over 1,500 feet.

To ascertain whether the owners of two-thirds of the property have petitioned, it would be necessary to consult maps, records, individual owners, and measurements of the complete frontal feet. Can it be said, with any reason, that the duty to do this, in order to acquire a knowledge whether the requisite owners of front feet had petitioned, would devolve upon these silent owners? Rather would it not be more reasonable to say that this was the duty of the corporation having charge of the work, and in its employ clerks; committees, engineers and attorneys, who have special facilities and education for that purpose ? Indeed, this is the very duty imposed by the act on the city council. They had no authority whatever to pass an ordinance authorizing the improvement, except on petition of the owners of two-thirds of the front feet abutting on the street. And before passing it they should have . known to a certainty that the requisite number had signed. None of the petitioners guaranteed by his signature, nor was he so required, that the requisite number was on the petition. Each signed for himself alone, and the council should have ascertained that the aggregate signers comprised the owners of two-thirds of abutting property, before taking final action. Such being the duty of council, the property-holders might well have relied on their action as being in accordance with law.

In some of the answers the city says that the property-holders knew, as well as it did, the infirmity of the ordinance, and that it acted in good faith, supposing that the necessary number had signed to give jurisdiction. At best this makes out a case of mutual mistake, and in such case neither is estopped. This doctrine was early laid down in our state. In 7 Ohio State, 99, it was held that where owners of adjacent property, •each being ignorant of their true line, built a sewer where they supposed the true line was, they were not estopped (in the absence of an agreement that that should be their boundaries) each to claim his true line.

These property-holders then had no knowledge of the defect. There were no circumstances which made it their duty to en-•quire, nor which show their ignorance to be culpable. They had no knowledge which the council did not possess, and they could not with such reasonable diligence as the law imposed ■ on them, have obtained it. And the council did not rely on their sil.enee, and was not induced by that silence to do any act which it would not otherwise have done, but without this assumed the responsibility of passing the ordinance, under a mistaken idea that the petition had the necessary number of signers to give it jurisdiction. In so doing it acted at its peril, and these plaintiffs are not estopped ■to set up the want of jurisdiction of council in the premises, and the invalidity of the assessments as to them.

Nor can they be held liable, under the decision in the Tone case, for any special or other benefit which accrued to their property from the improvement. As we understand that case, before an owner can be held for special benefits, the four conditions must combine in him: —proof that, (1), he had knowledge of the improvement; (2), that it was intended to assess it on his property; (3), knowledge that the infirmity existed, which he is estopped from asserting, and (4), that a special benefit accrued to his property which it is inequitable for him to enjoy without compensation. Two of these essential conditions are wanting as to these silent parties, and under that decision we must hold that they are not liable to any assessment, and the injunction should be made perpetual in their cases.

Some of these plaintiffs remonstrated against the passage of the ordinance, and here again, giving effect to the opinion of the court in Tone v. The City of Columbus, 39 O. S., 281, as the law governing us, it only remains to be seen whether the plaintiff is within the rule of that case excusing him as a remonstrant.

In that case the court say : What effect the signing of a remonstrance against the passage of the ordinance and presenting it to the city council, as in Carter's cast, will have, will depend largely upon the subsequent conduct of the signers. While they are in the attitude of remonstrants, it certainly cannot be maintained that they are silent or acquiescing.”

The court here is undoubtedly speaking only of such re.monstrance as was described in Carter’s Petition.

The allegation is, “ he (Carter) did not petition said city council to pass said ordinance, but on the contrary did sign and assist in circulating a remonstrance against the passing of said ordinance, and that said ordinance was passed against the remonstrance of plaintiff and very many others of the owners of the property fronting on said improvement.”

The evidence shows that the plaintiffs of this class signed and presented to the • city council a paper, in which they asserted', upon information and belief, that the petition previously presented was insufficient to authorize the passage of the ordinance, setting out in detail many objections to its sufficiency, and protesting against further proceedings in the premises.

To be an effective remonstrance against the enterprise, so as to entitle the party to the benefit of the rule of law applicable to the case, it must be made by a person whose rights may be affected, to persons or officers authorized to act upon it to some practical end, at a time when such action could be offevail and not interfere with any vested rights, and must be expressed in such language as plainly and fairly informs those for whose action it is intended, of the purpose sought; and such purpose must be the interception or termination of the enterprise in hand.

There can be no doubt that a proper remonstrance presented to the city council before the passage of the ordinance would be effectual and sufficient.

But the remonstrance in question was not presented to that body until after the ordinance was passed, though before the election of commissioners or the taking of any steps toward making any contract.

The question is, whether this is such remonstrance as entitled the parties to the benefit of the rule. We are of opinion it is, even if it be conceded that it discloses knowledge of the defect complained of. The remonstrance plainly expresses hostility to the enterprise. It asks the ordinance to be repealed, and solemnly protests against the improvement, and insists that the proceeding is illegal and unauthorized, and it is presented by parties whose rights are involved.

It must be borne in mind that none of these remontrants were petitioners, and they did not, therefore, affirm the validity of the statute. They were not active participants in, or promoters of the enterprise after the ordinance passed, and therefore did not in any way affirm the validity of the ordinance. As to them, therefore, the statute conferred no authority on the city council to enact the ordinance. As to them the council was without jurisdiction if the statute was valid — for the requisite two-thirds had not petitioned, and the council, therefore, neither had power to pass or enforce the ordinance.

No contracts had been made and no rights became vested, to be injuriously affected by a repeal of the ordinance and an abandonment of the enterprise. The city council at the time this remonstrance was presented, had power to do this. It was their official duty then to do it.

The remonstrance was then presented to the proper officers or authorities, who might and should have acted on it at a time when such action would have been effective, and not prejudicial to any one.

There is nothing in the testimony in this case to show that these plaintiffs ceased to be such remonstrants, or abandoned .their attitude as such, or became promoters of the movement. To require these remonstrants to commence suits to enjoin or do other acts of hostility to the improvement, is to require them to do something more than to continue in their attitude of remonstrants, and therefore to require more than is prescribed as their duty in the Tone, case.

Others pointedly remonstrated in a paper submitted to the city council after the election of the commissioners. It is to be observed that these remonstrants disclose no knowledge of any defect in the proceedings of council, and their position is at least as strong as that of..those who were silent without knowledge of the defect complained of. But then the city might have stopped the improvement, upon the ground of the unconstitutionality of the act, if not upon other grounds.

In the seventeen cases in which the plaintiffs so voted or ratified, or derived title from those who did, the petitions will be dismissed.

Lorenzo English, W. O. Henderson, J. T. Holmes, Albery & Air bery, W. J. Gilmore, Watson & Burr, and David Stalter, for plaintiffs.

G. T. Clark, Jones & Jones, and James Caren, city solicitor, contra.

In the remaining forty-five cases the injunctions will be made perpetual.


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    (First Circuit — Hamilton Co., O., Circuit Court
    Oct. Term, 1885.)
    Before Judges Cox, Smith and Swing.
    Eliza J. Gordon, Ex’rx. v. Telford Groesbeck et al., Trustees.
    Error to the Court of Common Pleas.
   Smith, J.

(Reported by himself.)

From the allegations of the petition in this case, it appears that Gordon, the testator, by his will, executed in August, 1883 (less than one year before his death), and which will was probated in January, 1884, bequeathed to “The Colored Orphan Asylum of Avondale,” a benevolent and charitable institution, $1,000, payable within two years after his death, the same to be held as an endowment fund for said institution, as long as it should continue to exist. If it should cease to exist, then said sum was to be returned to the body of his estate.

He also devised the one-half of the rents and profits of certain real estate and persoual property to his wife, Eliza, for her life-time, and the other half of such rents and profits to his daughter, Virginia Jackson, for her life; and, if his wife married again, or if she died before Virginia, then the daughter was to have the whole of said income for life.

He then provided that subject'to the foregoing bequests and devises, he gave all of his real and personal estate to any child or children of said Virginia, born in lawful wedlock, who should be living at the time of his death. And if his wife, and daughter Virginia, should die without leaving any child or children surviving them, he devised all of said estate to Groesbeck and others, as trustees, for thé benefit of what was called “The Gordon Colored Widows’ Home,” and which was also a charitable and benevolent institution, to be founded by said trustees, in case the devise to them took effect.

The petition in this case was filed by his widow as the executrix of said will, in the court of common pleas, against all of the legatees and devisees under the same, and alleged further, that the bequest to the orphan asylum and the devise to such trustees were invalid and void under section 5915, Rev. Stats.: That said asylum and trustees respectively, are claiming that they are valid and binding, and she asks the court to advise and instruct her as to her duty as executrix in the premises.

Virginia Jackson, the daughter of the testator, filed an answer and cross-petition, admitting all the allegations of the petition to be true. She further alleged that she was at the time of the death of the testator, and still is the only heir at law, and that she is in the possession of the one-half of said real estate, as she is entitled to the one-half of the rents thereof, and that her title for life thereto, is merged in the fee, as she is the owner thereof, subject to the division of the income thereof as provided for in the will — and she prays that her title thereto may be quieted as against the claims of said trustees, which are a cloud upon her title.

To the petition of the plaintiff a general demurrer was filed by the orphan asylum, and a motion made by the trustees to strike the answer and cross-petition from the files. The court of common pleas sustained both the demurrer and motion, and dismissed the action at the costs of the plaintiff, to which both the executrix and said Virginia Jackson excepted and now prosecute a petition in error to reverse such judgments.

By the Court—

Sec. 6202, of the Revised Statates, authorizes an executor to maintain an action in the court of common pleas “ against the creditors, legatees, distributees or other parties, asking the direction or judgment of the court in any matter respecting the trust estate or property to be administered.”

In this case the will provided that the legacy to the orphan asylum might be paid at any time, within two years after the death of the testator — but the executrix was not bound to wait until the expiration of such period, before filing such a petition — nor would she have been required to do so, even if the will had provided for its payment at the expiration of the two years. If'there is reason to believe that such a legacy is invalid under the law, the executrix is entitled to have the judgment of the court upon it, and may file such petition at any time after her qualification as the executrix, and thus be directed whether the amount is payable, in conformity with the terms of the will, or whether it shall be otherwise distributed or disposed of according to the provisions of the will or of the law. The demurrer to the petition (which we understand was sustained on the ground that the action was prematurely brought) was improperly sustained.

2. Mrs. Jackson, the daughter, as an heir, legatee and devisee, was a proper and necessary party to such action, and under section 5701, Rev. Stats., was authorized by an answer and cross-petition, “ to claim relief touching the matters in question - in the petition, against the plaintiff, ór against other defendants in the same action.” Under the allegations of her cross-petition, if they were true, said bequest to the orphan asylum, and - the devise to such trustees were illegal and void, and she was entitled clearly to a decree of the court so finding as to the beqtiest. If at the time of the death of the testator, Virginia Jackson then had living a child or children, born to her in lawful wedlock, under the will such child or children would have taken a fee simple estate in remainder in such lands. But there is no allegation either in the petition or cross-petition, that there were such children, and it is said by counsel that there were none. If this be so, and the devise of the land to the trustees was invalid, as it would be if the allegations of the petition and cross-petition be true, there was no devise of the fee of the land, which could be upheld or-take effect, and the remainder in the real estate being undevised it would pass to Virginia Jackson, as the sole heir at law of the testator. Patton v. Patton, 39 O. S., 590.

And Virginia being in possession of a part of the land a.s she alleges, Í3 as to that entitled to maintain as against the trustees an action to quiet her' title, they claiming an interest in said land adverse to her fee simple title. Rhea v. Dick, 34 O. S., 420.

Judge J. A. Jordan, for plaintiff in error.

Major Loyd and Telford Groesbeck, contra.

Therejwas error also in striking the answer and cross-petition of Virginia Jackson from the files, and both judgments are reversed.


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    (First Circuit — Hamilton Co., O., Circuit Court
    Febr. Term, 1886.)
    Before Judges Cox, Smith and Swing.
    J. H. Buning, on behalf of the City of Cincinnati, v. The Cincinnati Street Railway Co.
    ■Where an action is brought by a tax-payer, not living on or owning any property abutting on the line of a street railroad, to enjoin its use, on the ground that the grant is illegal and void, it is not error in the court to dismiss the case, the petition not averring and the evidence not showing that expense will be put on him by taxation or otherwise, the petition having been filed after the road was completed and in operation.
    Error to the Court of Common Pleas of Hamilton County.
   Cox, J.

This is a petition in error to reverse the judgment of the court of common pleas. The petition was filed in the court of common pleas by Buning, the present plaintiff in error, to enjoin th e defendant from operating what is called the extension of route No. 4, under an ordinance of the city of Cincinnati, and to declare the ordinance null and void.

The petition sets forth that the plaintiff is a tax-payer; that he made application to the city solicitor under the statute to bring this action, who declined to do it, and thereupon he brought it under Secs. 1778 and 1779 : “ In case the City Solicitor fails, upon the request of any tax-payer of the corporation, to make the application provided for in the preceding section, it shall be lawful for such tax-payer to institute suit for such purpose in his own name on behalf of the corporation.” Sec. 1779: If the court hearing such case is satisfied that such tax-payer had good cause to believe that his allegations were well founded, or if the same is sufficient in law, it shall make such order as the equity and justice of the case demands.”

Plaintiff alleges that he is a tax-payer, and that the city, in enacting the ordinance to extend route No. 4, exceeded its corporate powers. There is no statement in the petition that there was any misapplication of funds of the corporation, or that there was likely to be any expense, by way of taxation or otherwise, upon this plaintiff. It is admitted that plaintiff^ residence is in the neighborhood of three-quarters of a mile from the route; that he owns no property at all upon the route as established by the city council, and that he has no pecuniary interest otherwise .than that of a mere tax-payer, a general tax-payer of the city.

There are a great many exceptions taken to this ordinance. It is claimed in the first place, that this is not an extension of the route No. 4; that route No. 4 had expired by its own limitation, twenty years, and that this was the enactment and the grant of a new franchise entirely, and not an extension of the old one. It is claimed that it is not an extension of the route, because it runs upon some lateral streets parallel with the original track, and that there are no termini fixed. It is claimed also that this ordinance was obtained by fraud, because previous to the passage of the ordinance certain street railroad tickets had been given to the members of council. It is admitted that no application for this injunction was made until the track was laid and in use.

We have not thought it necessary to go into the examination of all these questions. We have felt ourselves satisfied upon one point, and that is this: This plaintiff does not reside on and has no property on this route. It is a long route, extends through the central part of the city, along its most valuable property, valuable interests are affected by it, and if the owners of property abutting upon the road were injured by the track, either single or double, in access to their property, or otherwise, it would be the duty of the court on their complaint to hear them to the fullest,and perhaps grant such relief as they might be entitled to if the ordinance were not passed with their consent. It is claimed that no consent has been given by these owners- of property to the extension of the road. There is, perhaps, some little want of form, an informality in the manner of filing the consents of the property holders for the grant, and in their consents, but the case has been pending here for over two years; no property holder along this entire route has complained, although the road has been in constant operation; none of them are in court appearing to complain; all seem to be satisfied. The court below heard the testimony, and proceeding to do as the statute provides they shall do, made such order as in its opinion the equity and justice of the case demanded, by dismissing the petition. Upon full examination of the case we are not satisfied that the court committed error. We think that where such large interests are involved as are in this route, where so many conflicting interests would arise between the railway company and property holders if they were injured, that some of them would have asserted those rights in court; and where a party owning no property on the route, and living three-quarters of a mile from it, is the only person in the city who complains of it, and especially when the road has been completed and in operation before his petition was filed, we think the court committed no error in dismissing his petition.

S. A. Miller, for plaintiff in error.

Stallo, Kittredge & Wilby, Paxton & Warrington, for defendant in error.

I may say that the plaintiff himself says he does not know anything at all about the case except what his counsel informs him. He is under no expense in employing counsel, or even paying notary’s fees for swearing to his petition. His name as a tax-payer has simply been used by parties not owning property on the route, who desire to have this ordinance held invalid.

The judgment will therefore be affirmed.