text:
    TENURE OF OFFICE OF CLERK OF BOARD OF WATER. WORKS TRUSTEES.
    [Circuit Court of Allen County.]
    John N. Hutchinson v. The City of Lima, Ohio.
    Decided, April, 1905.

      Municipal Corporations — Cleric of Board of Water Worlcs Trustees — An Employe and Not a Public Officer — Board Discontinued by Municipal Code — But Cleric Continued in Employment — Pleading—Averment of Petition Negatived.

    1. A clerk or secretary of a board of water works trustees, appointed prior to the enactment of the Municipal Code, and continued in employment thereafter by the board of public service, is not an officer but an employe, subject first to the direction of the board appointing him and then to the board of public service. State v. Jennings, 57 O. S., 415, followed.
    2. Whatever may have been the legal status of the board of water works trustees, it was legislated out of office by Section 222 of the • Municipal Code (1536-978 R. S.).
    3. A clerk of a board of water works trustees, who was performing the duties of his employment at the time of the enactment of the Municipal Code, was by virtue of Section 213 thereof (1536-912 R. S.), continued' in his employment until removed by the hoard of public service which superseded the water works trustees.
    4. An averment in a petition by such a clerk, that he was arbitrarily and without cause removed from his position by the board of public service, is negatived by the further averment that he was removed while the board was acting within the scope of its duties, . and the petition is thereby rendered insufficient .against demurrer.
    Vollrath, J.; Hurin, J., concurs; Norris, J., dissents as to fourth clause of syllabus.
   The original action herein was begun in the Court of Common Pleas of Allen County, Ohio, by the plaintiff in error as plaintiff, and the defendant in error as 'defendant.

The petition below presents its cause of action substantially as follows: On April 2, 1902, The Board of Water Works Trustees of the city of Lima, Ohio, elected the plaintiff, John N. Hutchinson, to the position of clerk or secretary of said board for a period of two years from May 15, 1902, at an annual salary of $1,200, payable in semi-monthly installments of $50 each. Said plaintiff duly qualified for this position by giving bond in the sum of ten thousand dollars and entered upon the discharge of his duties. The board of water works trustees, by which this appointment was made, was legislated out of existence by the act of October 22, 1902, known as the Municipal Code. Plaintiff, however, continued to hold his position as aforesaid under the board of public service established by the new code and which supplanted said board of water works trustees in said city and continued to so discharge his duties as such clerk until the 3d day of October, 1903, when, as he claims, he was summarily removed from his position by said board of public service and has not since that time been permitted to discharge the duties of his said position although constantly ready and willing to do so, and that he had not, during the period from said date of October 2, 1903, until- May 16, 1904, the time at which his term of service would have been fully completed and ended, been able to secure any other employment. Wherefore, plaintiff asks judgment against said defendant city for the amount of his salary that would .have accrued to him during the time he was so debarred from His said office as aforesaid.

A general demurrer was interposed to this petition by the defendant below and this demurrer was sustained by the court. Error is prosecuted here to reverse this action of the lower court in sustaining this demurrer.

In order to a proper conception of the issue thus presented it will be necessary to take a closer view of the petition in this case. After making the formal averments showing corporate character of the city of Lima, its possession of a system of water works controlled by a board of water works trustees, and the appointment of plaintiff by said board as clerk, or secretary of said board, and his qualifications and entering upon the duties of his office as aforesaid, the petition proceeds to state as follows :

“That on the 16th day of May, 1902, said plaintiff entered upon the duties of said office of clerk or secretary of said board as aforesaid, after having duly qualified, and continued to discharge the duties of said office as aforesaid up to and including the 2d day of October, A. D., 1903, to the complete satisfaction of the said board of water works trustees, while they remained in office until the 4th day of' May, 1903, and to the complete satisfaction of the Board of Public Service of the city of Lima, Ohio, which board of public service succeeded to the duties of said board of water works trustees, on the 4th day of May, 1903, as provided by the Municipal Code of the state of Ohio. That the duties of said clerk or secretary of said water works were to take charge of the books, papers and accounts of said water works; to have the care and control of the safe belonging to the city of Lima, Ohio, for the use of the said water works, and to keep and record the minutes of the board of water works trustees, while they were in office and had control of said water works, and that afterwards as such secretary he was required to and did perform precisely the same and similar services under and by virtue of his office for said board of public service, from the 4th day of May, 1903, up to and including the 2d day of October, 1903.

“That the duties required of him as such secretary remained precisely the same under the board of public service, as they were when he entered upon the discharge of his duties under said board of water works trustees, up to the time he was excluded and prevented by said board of public service from performing t'he duties of said office, as hereinafter set forth, and that they still continue the same under the rules and regulations of said board of public service, and as provided for by the Municipal Code of Ohio.

“Plaintiff says that on the 3d day of October, 1903, in the night time preceding said day, said Board of Public Service of the city of Lima, Ohio, did' forcibly enter into and take possession of the office room, wherein said plaintiff as such secretary aforesaid performed the duties of his said office, and wherein was transacted all the business of the board of waterworks trustees, and of said board of public service, so far as the control of and management of said water works was concerned, and also forcibly took possession of the books, papers and accounts belonging to said office, and in the care and control of said plaintiff as such secretary or clerk, and also took possession of the safe and the money contained therein, belonging to the city of Lima, Ohio, and under the care and control of said plaintiff and then and there and thereafter prevented plaintiff from entering into said office room and also from performing any of the duties of said office, from and after the 2d day of October, 1903, up to and including the 15th day of May, 1904, the day on which the term of office expired to which said plaintiff was elected as aforesaid.

‘1 That on the morning of October 3d, 1903, to-wit, at 7:30 o’clock a. m., the said plaintiff demanded from said board of public service, at the said office room of the water works, the right and privilege of entering said office room and the possession of the books, papers^ safe and all effects belonging to said office as such secretary and insisted on his right to enter said office room to perform the duties of such office, which demand said Board of Public Service of the city of Lima, Ohio, refused to comply with, and did so refuse until the expiration of said plaintiff’s term of office, although said plaintiff did for a reasonable time, to-wit, for at least the next ten days following said 3d day of October, 1903, continue each morning at the time for opening the office of said water works, to demand from those placed in the same to represent said board of public service, the right to perform the duties of his office, which demand was persistently and continuously refused.

“Plaintiff says that he has ever since .and at all times since the .2d day of October, 1903, up to and including the 15th day oOfoy, 1904, stood ready and willing to do and perform all the duties of said office, of secretary or clerk of said water work’s, as aforesaid, but has been wholly debarred from so doing by the action and refusal of said Board of Public Service of Lima, Ohio, as such board, pretending to and while acting within the scope of their duties as such board.

“•Plaintiff says that he was unable to find other similar employment from the 2d day of October, 1903, to the 16th day of May, 1904.-

•“ Plaintiff says that said action of said board of public service . was arbitrary and without reason; that plaintiff had at all times performed his duties as such secretary or clerk, in full compliance with law and to the satisfactiion of said board of public service and without any complaint or charges of neglect or wrong-doing preferred against him by said board of public service.

‘•‘.Plaintiff says 'that said defendant paid his salary, as and for. such employment from the 15th day of May, 1902, up to the 1st day of October, 1903, and no more. That he has made demand of said defendant for his salary due him at the dates at which the same became due._ and also for the full amount after his .term of office had expired, which defendant has refused to pay and still continues to refuse to pay.

“Wherefore, plaintiff asks judgment for the total amount which he would otherwise have receeived as salary- as such clerk during the period extending from October 1st, 1903, to the end of the term of his appointment, to-wit, to May 16th, 1904.” -

The sole question as presented here is: Did the court below err in sustaining the demurrer to said petition?

Plaintiff claims substantially that by virtue of said appointment he became a public officer and could not therefore be removed before the expiration of his term except for cause and upon charges filed and presented; that the act of the board of public service in dispossessing and removing him as it did was arbitrary and unreasonable and without cause, and therefore he was entitled to hold his position to the end of said term and "was and is consequently entitled,to receive from said city his stated salary for all of that time.

In the view which we take of this case it, perhaps, matters little whether plaintiff was an officer of the city of Lima within the meaning of that term, or a mere employe of the board of public service. It is claimed on the one hand that he was an officer and denied on tbe other. The functions of a public officer are clearly defined in State, ex rel, v. Jennings et al, in the 57th Ohio State, page 415. The second syllabus of this ease reads as follows:

“To constitute a public office against the incumbent, of which quo warranto will lie, it is essential that certain public duties, a part'of the sovereignty of the state, should be appointed to it by law, to be exercised by the incumbent, in virtue of his election or appointment to the office, thus created and defined, and not as a mere employe subject to the direction and control of some one else.”

Under the principles here laid down it is difficult to understand how plaintiff could be considered a public officer. His position was that of clerk. His duties were those of a subordinate. All his actions were subject to the direction, first, of the board of water works trustees, and secondly, to the board of public service.

As stated above, however, the solution of this question does not enter seriously into our findings. Whatever may have been the legal status of the board of water works trustees it was legislated out of existence by the act of October 22, 1902, above referred to, and by Section 222 of. said act, which is designated in Bates’ Annotated Statutes of 1904 as 1536-978. This provides as follows:

“The first election under this act shall be held on the first Monday in April, 1903, and all elective officers provided for in this act shall be elected at that time and the terms of all existing elective officers of municipalities, except as otherwise provided in this act, shall cease and determine on the first Monday in May,' 1903, and their offices shall be abolished upon the qualifications of the officers provided for in this act, and every year thereafter on the first Monday in.May, 1903, and their offices shall be abolished upon the qualifications of the officers provided for in this act, and every year thereafter on the first Monday in April an election shall be held in each municipal corporation and such election shall be conducted, canvassed and the result certified in the manner provided by law with respect to municipal elections.”

The officers chosen at the first election held hereunder and at all subsequent elections shall begin their respective terms on the first Monday in May succeeding said election.

Under other circumstances this might be construed to be the end of subordinate positions created by said board of trustees and the consequent termination of all terms of employment, or offices created by it and the removal or ejectment of the incumbents of same. This, however, is prevented by another provision of the Municipal Code known as Section 213 of the code, or 1536-912, of Bates Statutes. This section reads as follows:

“All officers elected by the people or appointed by any authority, and all employes under any boards or officers in any municipal corporation, and all officers or employes in any edueational, charitable, benevolent, penal or reformatory institution in any such corporation, now serving as such, shall remain in their respective offices and employments and continue to perform the several duties thereof under existing laws, and receive the compensation therefor until their successors are chosen or appointed and qualified or until- removed by the proper authority in accordance with the provisions of this act.”

This section of the code doubtless continued the plaintiff in his office or until “removed by the proper authority in accordance with the provisions of this act,” or until his success- or was chosen or appointed. There can be no question but what the proper authority in this ease was the board of public service. He was removed by the board of public service but claims that was arbitrarily done. Section 145 of the Code, being Section 1536-681 of Bates’ Annotated Statutes, indicates how removals may be made by the board of public service, This section reads as follows:

The directors of public service may employ such superintendents, inspectors, engineers, harbor masters, clerks, laborers, and other persons, as may be necessary for the execution of the powers and the duties of this department, and may establish such sub-departments for the administration of affairs under said directors as may be deemed proper. The compensation and bonds of all persons appointed or employed by the department of public service shall be fixed by said directors, and no person shall be removed except for cause satisfactory to said directors, or a majority of them.

Particular attention is invited to the concluding portion' of this section, to-wit: “The compensation and bonds of all persons appointed or employed by the department of public service shall be fixed by said directors, and no person shall be removed except for cause satisfactory to said directors, or a maority of them.”

This doubtless gives the board of public service power to remove any of their appointees or employes. This, under the circumstances of this case, would include the plaintiff as clerk of said board. The only condition is that he shall not be removed except for cause satisfactory to said directors, or a majority of them. That plaintiff was removed is evident. That his removal was satisfactory to the board of directors is also evident. Plaintiff, however, claims that he was not removed for cause, but simply arbitrarily removed. This claim might be good so far as the face of this petition is concerned were it not that plaintiff in his petition makes an averment that this action of the board of public service was taken- by the board “while acting within the scope of their duties as such board.” There can be only one legitimate inference from this declaration of the petition. If the board was acting within the scope of its duties in the removal of plaintiff, .they must have been acting legally and his removal must have been for cause. There are other averments in the petition claiming that the removal was arbitrary and without reason, that plaintiff had performed his ■duties in compliance with law and to the satisfaction of said board and without any complaint or charges, etc., but under the familiar rule that a pleading of this nature must be construed most strongly against the pleader, the effect of the admissions above quoted must be apparent.

Becker & Becker, for plaintiff in error.

H. O. Bentley, City Solicitor, for defendant.

Note also that Section 1536-912 provides that officers and employe_s affected by said act of October 22, 1902, and acting as such officers or employes at said date, shall remain, etc., and re-, eeive their compensation, etc,, until their successors are chosen or appointed and qualified. This would apply to plaintiff as well as others. There is nothing in the petition, it is true, to 'show that'a successor to the plaintiff had been appointed, but since the petition alleges that the board of public service acted witliin the scope of its duties in said matter, an inference to that effect might be justified.

Under these circumstances it is the opinion of the court that the demurrer was well taken. -There are a number of other reasons assigned by defendant' in error in support of the action of the lower court, but as the grounds noted above are sufficient to dispose of the case, we do not pass upon the others.

We find no error in the judgment of the lower court and the judgment of said court is therefore affirmed at the costs of the plaintiff in error. Judgment and execution accordingly and case remanded to the court of common pleas for execution.

       Affirming Hutchinson v. City of Lima, 3 N. P.—N. S., 55.


source: Caselaw Access Project

license: Public Domain

text:
    CONTRACTS BETWEEN RAILWAY COMPANIES.
    [Circuit Court of Montgomery County.]
    Dayton & Union Ry. Co. v. P., C., C. & St. L. Ry. Co.

    Decided, 1902.

      Railways — Corporations Re Jure and Re Facto — Ultra Vires Contract —Valid When Invalid Portion Can Be Eliminated — Mere Intention to Violate Corporate Ruties — Not Ground for Forfeiture of Charter — Contract for Use of Tracies a Permanent License, When ■ — Agreement to Arbitrate Roes Not Oust Jurisdiction of the Courts —Word “Road" a Generic Term — Includes Present and Future Trades and Side-trades — Right to do Local Freight Business — Test as to What Company Business Passing Over a Road Belongs.

    1. A de jure railroad corporation does not by entering into an ultra vires contract with a connecting line become a corporation de facto.

      2. A mere intention on the- part of a railroad company to violate its public duties, does not change the legal status of the company,-or afford ground for the forfeiture of its charter.
    3. A trackage contract between railroad companies, whose tracks are parallel for a distance of fifteen miles and thereafter separate widely, is within the enumerated powers of railroads, and does not destroy but rather creates competition between them: and where in a contract of this character' an ultra vires feature is found, which can be eliminated, the remaining portion of the contract is not rendered invalid thereby, nor is ground afforded for forfeiture of the company’s charter.
    4. Moreover the defense of ultra vires can not be interposed by one railroad company against another, which has been recognized as binding upon them and acted upon flor thirty-seven „ years, and the history of the arrangment and circumstances of the companies are as in this case.
    5. The taking up and removal of a parallel track is a public good to the extent that the burden upon the public domain is thereby relieved, and the danger at crossings reduced, and the convenience .of the carrier promoted.
    6. A valid contract between two railroad companies, whereby one is to have the use of the other’s road so long as they continue to exist as chartered corporations, is in the nature of a permanent license, and is enforceable in a court of justice notwithstanding a provision that disputes between the companies shall be submitted to arbitration. The word “road” in such a contract will be construed as a generic term including all present and future tracks, side-tracks and structural facilities in the' transaction of both locall and through business.
    7. A grant by a railroad company of the use of its road for “all trains required in the prosecution of its business,” limits the licensee to the business of the grantee company, and the test as to whether the business passing over the road is that of the licensee is to be determined from the facts of the case, and not from the engines or crews used in operating the trains.
    Appeal from Montgomery Common Pleas.
    This ease comes before us on appeal from the decree of the court of common pleas.
    The action is prosecuted by the plaintiff, to enjoin the defendant from interfering with its use of the track and side-tracks of the defendant’s road between the west bank of the Great Miami river at Dayton, Ohio, and the junction, or Dodson station (fifteen miles beyond, in a northwesterly direction), for the transaction of its business as a common carrier.
    The plaintiff claims the right to so use that part of the defendant’s road under a contract entered into by it and the Dayton & Western Railroad Company oil January 14, 1863; and that its rights, under that contract, have become fixed and definite by a long course of business and user, acquiesced in by the defendant, for such length of time and with such uniformity as to have become a rule of construction of the contract between the parties. A copy of the contract is attach, d to the petition and is of such length that reference must be had thereto for a full statement of its contents. The terms which are in dispute, and which the court is called upon to construe, will be referred to in tha discussion of the ease.
    The defendant admits the execution of the contract, but denies the plaintiff’s right to use its road, in the manner and to the extent claimed by it; specifically denying its righi to use the side-tracks in West Dayton, and the main line, for the purpose of scheduling or detouring the trains of other roads over the same. It also denies that 'it has acquiesced in the use of its road in the manner claimed by the plaintiff. It claims further, that the contract in question is void ai initio, for the reason that the parties to it, being railroad companies operating parallel competing lines, were without the corporate power to enter into such a contract, and that the contract is against public policy, for the reason that its tendency and purpose are to stifle competition. It asks therefore that the contract may be declared void and canceled, or if not, then that the plaintiff may be enjoined from making an unwarranted use of the road under its terms.
    There are but few facts in dispute ,in the case, the material facts being admitted. Those admitted or proven, found by the court necessary to be considered, in reaching a conclusion in the ease, are.the following:
    1. The Dayton & Western Railroad Company was incorporated February 14, 1846, (44 O. L. L., 93). It was authorized to and did thereafter construct a line of railroad from the city of Dayton to the state line, between the states of Ohio and Indiana, passing through' the village of Dodson, fifteen miles west of the city of Dayton. On January 31, 1851, the legislature authorized it to unite with the Terre Haute & Richmond railroad (49 O. L. L., 466), thus giving it a line to Richmond, Indiana.
    2. The Greenville & Miami Railroad Company was incorporated February 26, 1846, (44 O. L. L., 189), with authority to construct a line of railroad from the town of Greenville in Darke county, to any point on the Dayton & Western railroad, or to any point on the Miami, or Miami Extension, canal. On March 23, 1850, it was authorized to extend its railroad westwardly, to a point on the Indiana state line (48 O. L. L., 311). It thereafter constructed a line of railroad from Union City, through Greenville, to a point called the junction, at or near Dodson, a village on the Dayton & Western road.
    3. On March 14, 1853, the Greenville & Miami Railroad Company acquired, by contract with the Dayton & Western Railroad Company, the privilege of occupying the right of way of the Dayton & Western Railroad Company, from the point of junction at Dodson, to- Dayton, for the construction of a second track, thirteen feet from center to center, parallel with that company’s line, agreeing to pay therefor six per cent, on the cost of the D. & W. road, between these points. Subsequently it acquired from the abutting landowners for railroad purposes eight strips of land, which are not continuous, but which lie alongside the Dayton & Western Railroad Company’s right of way. Under this arrangement it put down and operated, until January 14, 1863, a separate track with the then needed side-tracks, parallel with the line of the Dayton & Western Railroad Company’s line, between Dodson and the west bank of the Great Miami river, at Dayton.
    4. On January 8, 1863, the Greenville & Miami Railroad Company was reorganized, under the laws of Ohio, as the Dayton & Union Railroad Company..
    5. On January 14, 1863, the Dayton & Western Railroad Company, and the Dayton & Union Railroad Company, entered into the contract, attached to the petition, marked exhibit “A;” in pursuance thereof, the Dayton & Union Railroad Company took up and disposed of its superstructure, between Dodson and Dayton, and has ever since transacted its business as a common carrier, between those points, on the road of the Dayton & Western Railroad Company, paying therefor the rentals in the contract provided.
    6. On January 4, 1865, the Little Miami and the Columbus & Xenia Railroad Companies leased the Dayton & Western railroad for a period of ninety-nine years, renewable forever, subject to the agreement between the Dayton & Western Railroad Company and the Dayton & Union Railroad Company, dated January 14, 1863, and agreed “to keep, perform and fulfill all and every of the covenants and stipulations of the party of the first part,” contained in -said agreement.
    7. On November 13, 1868, in pursuance to article fifteen of the contract of January 14, 1863, the Dayton & Union Railroad Company, and the Little Miami and the Columbus & Xenia Railroad Companies, for a consideration of $2,Q00, annual rental, to be paid by the former to the latter, agreed that the former should have the privilege of using the Great Miami river bridge, and the track of the Dayton & Western railroad, from the depot grounds of the Dayton & Union east of the river to the junction near the west end of said bridge; the rights and liabilities of the parties to be determined by the terms of the contract of January 14, 1863; since which time the Dayton & Union Railroad Company has used said bridge and track in the conduct of its business and paid the rental therefor.
    8. On March 18, 1869, the Columbus & Xenia Railroad Company leased to the Little Miami Railroad Company for the period of ninety-nine years, renewable forever, its line of road, together with its interest in the Dayton & Western railroad.
    9. On December 1, 1869, the Little Miami Railroad Company leased to the Pittsburgh, Cincinnati & St. Louis Railway Company for the period of ninety-nine years, renewable forever, its line of road, including its interest in the Dayton & Western and the Columbus & Xenia railroads.
    10. On January 2, 1877, the Pittsburgh, Cincinnati & St. Louis Railway Company, as lessee of the Little Miami Railroad Company, entered into an agreement with the Dayton & Union Railroa.d Company, whereby the said first-named company, for the sum of $10,000 cash to it in hand paid, settled and dismissed a suit then pending in the Superior Court of Dayton, brought to recover additional rentals, under the stipulations of the twenty-third article of the contract of January 14, 1863; and upon the further agreement of the Dayton & Union Railroad Company, thereafter, to pay to the Pittsburgh, Cincinnati & St. Louis Railway Company a fixed rental of $10,000 annually, said twenty-third article was agreed to be eliminated from said contract, and to be thereafter inoperative; but it was otherwise then and there expressly agreed, between said parties, that “all other portions of said contract of January 14, 1863, should remain unchanged and in full force, and all the rights and privileges of each party thereunder should be fully preserved.”
    11. On October 1, 1890, the defendant, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, became and is now the successor of the Pittsburgh, Cincinnati & St. Louis Railway Company.
    12. On or about November 8, 1897, the defendant notified the plaintiff that on and after December 1, 1897, the switches to its side-tracks in West Dayton, or Miami City, would be dosed and locked against the locomotives and cars of the plaintiff, unless a charge was paid therefor, and it has refused to arbitrate, under article twelve of the contract of January 4, 1863, the question whether the plaintiff has the right to use said sidetracks without charge.
    13. The side-tracks, whose useds thus in dispute between the parties, were constructed by the defendant, and its predecessor in title, between the years of 1870 and 1897 inclusive, and each of said side-tracks connects with the main track of the Dayton & Western railroad; they are fourteen in number, and four of them are laid down on, and three others lead out from the right of way used by the Dayton & Union Railroad Company before it took up its superstructure. .
    14. The Dayton & Union Railroad Company has used the said main track and side-tracks between said stations, for running, by schedule, and detouring thereon, trains of other railroad companies, without the permission of the defendant and against its protest. It has also received and discharged freight for other railroad companies, with which it has connection, on the east side of the river, on the side-tracks in Miami City, for switching charges only.
    , 15. The nature and extent of the use, made by plaintiff of the defendant’s road, has changed, more or less, with the change of management of the roads, respectively, and the mode of use has not been, as to the matters in dispute, of that uniform character which would establish a rule of construction of the contract between the parties. At no time, however, before the commencement of this action, did the defendant question the right of the plaintiff to use its main track and the side-tracks in use at the time of the making of the contract of January 14, 1863, and provided for therein.

      Wilson, J.; Sullivan, J., and Summers, J., concur.

       Affirming 1 N. P.—N. S., 577, and affirmed by the Supreme Court, 67 O. S., 523.

   I. The question whether the contract of January 14, 1863, is ultra vires, will be first considered.

It is argued by counsel for the defendant, that although the plaintiff was without authority to operate this parallel line of fifteen miles of track, for the reason that its charter did not extend over it, yet, that it was a corporation de facto, operating a line parallel with the Dayton & Western road, can not be questioned in this action. This'should not be said unmindful of the fact, and it would be more accurate to say, that it was a corporation de jure, authorized under its charter to operate a line of road from the Indiana line at Union City, through Greenville, to Dodson, the point o£ junction with the Dayton & Western road, which, apart from the fifteen miles of parallel track is, beyond question, a connecting line. If it be true, that to operate the fifteen miles of track, under the agreement made with the Dayton & Western Railroad Company in 1863, was to exceed its corporate power, and its authority had been challenged by proceedings in quo warranto, the judgment of the court would have been to oust it from doing what it had no authority to do, confining its operation to the charter limits, but not revoking its charter. It would still have continued to be a corporation de jure.

It must be conceded, we think, that if this parallel track had never been built, and the contract of January 14, 1863, had been entered into, under the other existing conditions, the roads contracting would, in contemplation of law, have been connecting lines, authorized, under the statute, to enter into a trackage arrangement for their common benefit.

This contract looks to a return to just that condition. It was made, in part, for the purpose of enabling the plaintiff to take up its parallel line, which, it is said, it was operating ultra vires, and substitute therefor a trackage contract, which would be within its enumerated powers. Having taken up its parallel track, or agreed to do so, it became and was simply a corporation de jure, owning and operating a connecting line of railroad, within the meaning of the statute.

The fact that the parties stipulated, in the contract, that the Dayton & Union Railroad Company might, if the contract was terminated, return to the use of the parallel track, did not make it otherwise. No mere intention, or purpose, on the part of a corporation, to violate its duty, can constitute ground for the forfeiture of its charter, or change its legal status. Commonwealth v. Railway Co., 58 Pa. St., 26.

The language of the statute in force at the date of the contract was:

“Any two or more railroad companies, whose lines are so connected, may enter into an arrangement for their common benefit, consistent with and calculated to promote the objects for which they were created.” S. & C., 281.

The language of the present statute is:

“Any two or more companies whose lines are connected and not competing, may enter into an arrangement for their common benefit consistent with, and calculated to promote the objects for which they were created.” Section 3300, Revised Statutes.

The intendment, of the law is not changed by the addition of the words “and not competing.” It ivas the original purpose of the statute to preserve competition for the benefit of the public, and that is the settled policy of the law.

There are provisions in the contract in question which look to the stifling of competition, but they have never been acted upon. The parties have each, under the arrangement, carried on the business of a common carrier, without invoking the aid of these provisions. * * * It can not be said, therefore, that the contract would not have been entered into' without them. It will be time enough to pass upon their legality when the contracting parties undertake to enforce them. The contract is operative .and binding without them, and if found to be unlawful, they can be eliminated, leaving the other provisions of the contract to stand. Without them, the contract creates competition and is not, for that reason, against public policy. If the business of the public can be done as well on one track as on two. it was not only for the benefit of the companies, but of the public as well, to remove one of the tracks, The inconvenience of doing business with one road across the track of the other, is obvious, and every additional track is an increased burden on the public domain, and an enhancement of the danger to the public, and to property. * * * It is the policy of the law to mitigate these necessary evils by doing away with unnecessary tracks. Vide, Sections 3338, 3339, 3340 and 3341, Revised Statutes.

- We find, therefore, that the companies, entering into this contract, had the corporate power to so do, and that the contract is not against public policy. If this were not so, we would question the right of the defendant to plead the ultra vires of the contract, as a defense in this action. It is said in Rawle’s Bouvier, 1154:

“It is a much disputed question, whether unauthorized contracts, neither malum in se nor malum prohibitum, or where the restriction is implied from the grant of specified powers, are absolutely void and non-enforceable, even where the party has received the consideration for the promise.”

It would seem that the. Sup reme Court of the United States is committed to the doctrine that such contracts are absolutely void, and that no relief can be had under them'.

In the case of Central Transportation Co. v. Car Co., 139 U. S., 24, 60, Mr. Justice Gray says:

1! When a corporation is acting within the general scope of the powers conferred upon it by the Legislature, the corporation, as well as persons contracting with it, may be estopped to deny that it has complied with the legal formalities which are prerequisites to its existence or to its action, because such requisites might in fact have been complied with. But when the contract is beyond the powers conferred upon it by existing laws, neither the corporation, nor the other party to the contract, can be estopped, by assenting to it, or by acting upon it, to show that it was prohibited by those laws.”

It will be found that the doctrine of this case is supported by numerous other cases, preceding, as well as following, in that court. It is said, however, in the notes to the case of Miller v. Insurance Co., 20 L. R. A., 765 (92 Tenn., 167) :

“On the other hand, it has come to be the settled doctrine of many states that a corporation may be estopped to deny its authority to enter into a contract which has been executed, and from which it has derived the benefit which it thereby sought. There is undoubtedly a growing tendency to the latter doctrine in modern decisions of this country, and of England.”

Some of the leading cases upholding it are, Whitney Arms Co. v. Barlow, 63 N. Y., 62; Manchester & L. Ry. v. Railway Co., 66 N. H., 100 (20 Atl. Rep., 383); Wright v. Hughes, 119 Ind., 324; Bradley v. Ballard, 55 Ill., 413.

The courts of many other states are in-line with these authorities. Among the very recent decisions to that effect are, Boyd v. Carbon Black Co., 182 Pa. St., 206 (37 Atl. Rep., 937); Bath Gas Light Co. v. Claffy, 151 N. Y., 25 (45 N. E. Rep., 390). In the latter case it is held:

“2. A contract made by a corporation without legislative sanction, and hence in excess of its powers, but involving no moral turpitude, and offending against no express statute, is not necessarily ‘illegal’ in such a sense as to prevent the maintenance of any action upon it.”

This is a strong statement of what is called the new doctrine.. Our own Supreme Court would seem to hold with these later authorities.

In the case of Hays v. Light & Coal Co., 29 Ohio St., 330, 340, Judge Boynton says:

“The rule seems well established that where a contract has been executed and fully performed, on the part either of the corporation or of the other contracting party, neither will be permitted to insist that the contract and such performance by one party were not within the corporate power of the company.”

In the case of Larwell v. Savings Fund Soc., 40 Ohio St., 274, 285, Judge Dickman makes the same statement substantially. In both of these cases Whitney Arms Co. v. Barlow, supra, is cited with approval; and in that case it is held, page 506:

“The plea of uUra vires should not, as a general rule, prevail, whether interposed for or against a corporation, when it would not advance justice, but on the contrary would accomplish a legal wrong.”

The contract against which the defense of ultra vires is sought to be interposed in the case at bar, has been recognized as binding and acted upon by the parties for more than the third of a century. In pursuance to its provisions, the plaintiff has taken up its track, and the defendant has constructed side-tracks, and other business facilities, on the right of way the plaintiff once occupied, and is claiming the right to exclude the plaintiff from their use in its business. The defendant expressly ratified its terms fourteen years after its execution, in order that it might receive the increased rentals commensurate with the growth of business. Its treasury has received more than $350,000, the fruits of its enforcement. These facts, we think, call for the application of the doctrine of the cases we have last cited, and which, we understand, meets the approval of the Supreme Court of Ohio; and independent of the question whether or not the contract was, and is, ultra vires, we hold it would be inequitable and unjust, at this late day, to permit that defense to be interposed.

If we should follow the contrary doctrine, as held by the Supreme Court of the United States, the defendant does not. in its answer, justify the plea. It admits it threatens to. and will, unless restrained by the court, lock its switches to the sidetracks in Miami City, against the plaintiff, and dispossess it by force of the use of the property it claims under the contract.

The defendant asks that tbe contract may be declared void and canceled, but it does not propose, or seek, a settlement of tbe rights and equities which may have grown up under the long acquiescence in, and execution of the contract for thirty-seven years. It simply claims the right to seize the property and dispossess the plaintiff, because the contract is void. Such seizure at once, by force and without adjustment, would leave the plaintiff practically without the facilities to carry on its business. Relying upon the terms of this contract, the agreement for the use of the C., H. & D. bridge has been canceled. Its right to use the defendant’s bridge must stand or fall with the contract which is sought to be avoided. And if it falls the plaintiff might be shut off entirely from Dayton, east of the river.

Numerous other inequalities might arise, growing out of the execution of the contract in the past.

“A court of equity will enjoin the seizure of property, and the ejectment of the possessor, although the same may have been acquired under an illegal contract, until an application has been made for the cancellation of such contract, and a full and fair settlement of all accounts growing out of its execution in the past.” Western Union Tel. Co. v. Railway Co., 1 McCrary, 565 (3 Fed. Rep., 430, 434).

Judge McCrary, on page 569, says:

“What I wish to emphasize in this ease, as well as in other similar cases, is that the defendants have no right to take their remedy into their own hands. If they have the right to seize this, property by force, upon the ground that they hold the contract void, according to the same reasoning the plaintiff would have the right to adjudge the contract valid, and by force retake the property. In other words, force and violence would take the place of law, and mobs would be substituted for the process of courts of justice. The strongest litigant, the one commanding the largest force of men and the most money, would succeed.

“Such a doctrine, if recognized by the courts, as a proper mode of adjusting disputes concerning property rights, would lead at once to anarchy.

“If the defendants, after years of acquiescence in the contract in question, after receiving its benefits, and after a property had been built under it to which others made claim, became suddenly convinced that it was a void contract,, it was their duty to apply to the courts for relief, praying a cancellation of the contract, and a full and fair settlement of all accounts growing out of its execution in the past.

“Until they seek some such remedy, and until a fair settlement upon a full accounting can be had, they will be enjoined from attempting to eject the. plaintiff, or to seize the property. ’ ’

Under any view of the law, therefore, the defendant is not entitled to interpose the defense of ultra vires, simply, to the plaintiff’s suit, to enjoin it from forcibly seizing the property and rights which are in dispute under the contract.

II. The contract is in the nature of a permanent license, securing to the plaintiff the right to use the road of the Dayton & Western Railroad Company in the manner prescribed by its terms, as long .as the contracting parties shall continue to exist as chartered corporations.

The defendant succeeds to the use and control of the Dayton & Western road, subject to the terms of this contract, which its predecessor, for a valuable consideration, agreed to perpetuate and perform. It is not precluded from defending under the contract, because of the stipulation therein, to arbitrate.

“A mere agreement to arbitrate does not preclude a resort to a court of justice; and it can not be pleaded in bar. Such agreements will not be specifically enforced, nor will the arbitrators be compelled to act.” McGunn v. Hanlin, 29 Mich., 476.

It only remains, therefore, to construe the contract.

The authority given to the Dayton & Union Railroad Company, to enter into the contract, jis expressed in the agreement, of the reorganizing creditors and stockholders of the Greenville & Miami Railroad Company, was to contract “for the use of so much of the road of said Dayton .& Western Railroad Company as lies between Dodson and the city of Dayton.”

The incentive to the contract is declared in the preamble to be “the mutual interest of both companies.” Its purpose was “by proper comity” to arrange “for the convenient"dispatch of the business of both companies, upon a single track common to both.”

The Dayton & Union Company had the opportunity; and desired to dispose' of its superstructures, between the village of Dodson, and the city Dayton. But before it would do so it desired to first acquire from the Dayton & Western company “the permanent right * * * to enter upon its railway track from time to time, and at all times, at either of said points, with the locomotives, cars and trains of the said party of the second part.” The Dayton & Western Railroad Company was willing to make such permanent grant.

“To carry out this agreement, and to grant and assure, t© the said party of the second part, the permanent right and full use of the said railway track and the side-tracks thereof between said points,” the contract was entered into.

Such in substance is the preamble,

The grant is expressed in the first and second articles which are as follows:

_ ‘ ‘ First. For the consideration hereinafter stated, the said party of the first part hereby grants and assures to the said party of the second part the permanent right to enter upon the main track of the party of the first part, without delay or hindrance, by properly constructed switches at the junction, and near the west end of the bridge over the Great Miami river, and with all the trains of the said party of the first part, and in such manner as will fully allow to the party of the second part all reasonable means and facilities for the prompt and convenient dispatch of its business.

“Second. While it is the intention of the said contracting parties to make the main track and side-tracks of the party of the first part, between the said points, common to the use of both companies, as aforesaid, it is hereby distinctly stipulated that the free use thereof by the said party of the second part shall be at all times subordinate to the necessary use thereof by the said party of the first part, except as hereinafter qualified.”

It will be observed that what the Dayton & Union company was authorized to contract for, was the use of the road of the Dayton & Western company between these points. Road is a generic term, and must be held, ordinarily, to include all structural facilities, which appertain to the road proper. That term is not used in the first and second articles of the contract. What is substituted therefor, is main track and side-tracks * # *. Other articles in the agreement assure to the plaintiff the use of the switches and water stations. These together practically constitute the road, in the sense the plaintiff has the right to use the same.

That they were intended to be such equivalent, is apparent from the language of article thirteen, wherein it is provided that the payment of rent shall begin “at the time the party of the second part enters on the use of the road of the party of the first part;” and from article twenty, in which it is provided, that “the party of the second part shall be liable to individuals and the public, for any damage done, to persons or property, by its trains in using the road of the party of the second part.”

We conclude, therefore, that the language of the general grant is broad enough to include all tracks and side-tracks, which were then or have since become a structural part of the road, and must be held to so do, unless there can be found words of limitation in the other provisions of the contract, which necessarily modify its meaning.

It is argued that such limitation is necessarily implied from the provisions of article three of the contract. We do not so interpret it. It reads:

“Third. It shall be the duty of the party of the first part to provide at Higgins station and at Brookville station, necessary side-tracks for the convenient passing of trains and dispatch of business at those points, and to keep the same in good repair, and also the main track, culverts, crossings, bridges, etc., between the west side of the Miami river and the junction; and in addition to the side-track, for the purpose of passing trains at Brookville, there shall be additional siding and track for the accommodation of freight.”

This stipulation was made necessary, for the reason the roads could not operate under the contract until side-tracks were provided for the passing of trains, and the accommodation of freight at the villages on the line, it being a part of the agreement that the party of the second part should be permitted to take up its whole superstructure. The limitation which it implies is, that the party of the second part could not then require the party of the first part to build any side-tracks other than as therein provided. For others than these, it must rely on the necessity that would compel the party of the first part to build, in order to accommodate its own business.

If the plaintiff believed, and had the right to believe, that it would be entitled to use in common the side-tracks which the defendant would thus be compelled, by the demands of its own business, to build, there is no significance in the fact that other side-tracks are not expressly provided for in the contract. They would come only with the increase of business, true, but would be sure to come if needed.

It was provided that the increase of business to the plaintiff, beyond $100,000 per annum, should bring a correspondingly increased rental to the defendant; and in that way the defendant was to be compensated, not only for the additional wear and tear, but for the outlay it would make in providing the additional facilities for conveniently dispatching promptly, the business of both companies on one line common to both.

If anything does, it is the fixed rental of the contract of 1877 that prevents the compensation from being always commensurate with the cost of placing and maintaining the road in a condition equal to the demands of the business of both roads.

This modification of the original contract was made by the defendant’s immediate predecessor, to all of whose rights and liabilities it has succeeded.

The provisions of article twenty-three, for the increased rental, proportionate to the increase of business, indicates that the parties had in mind the growth of business, and growth of business means additional facilities — more side-tracks. '

I.n view of the fact that the arrangement was to be permanent, lasting as long as the companies retained their charters, it would not be for the mutual interest of both companies, as is said iri the preamble, nor making the use of the main track and side-tracks -common to both; as is the declared intention, nor equitable, as is the rule prescribed in article twenty-four, to limit the plaintiff to the use of the side-tracks existing at the lime, or expressly provided for in the contract.

The true measure of its right, in the language of the contract, is, "to occupy and use between said points, the main railway track and side-tracks of the said party of the first part; and in such manner as will fully allow, to the party of the second part, all reasonable means and facilities for the prompt and convement dispatch of its business.”

To put upon the use the restrictions for which the defendant contends, would be to make it partial, not "full,” unreasonable, not "all reasonable,” and to retard, not render "prompt,” the dispatch of its business.

It is contended by counsel that article twelve, which is constructional in its character, clearly defines the scope of the whole contract. It provides:

“In giving construction to the contract, due consideration shall be given to the main object sought to be accomplished by its formation: (1) the use of one track instead of two, between Dayton and the junction; (2) the manner in which the party of the second part may use the tracks of the party of the first part; •and (3) the amount of compensation to be paid therefor.”

It is said this simply means to give the Dayton & Union Railroad Company the use of the main track and side-tracks, for the prompt and convenient moving of its trains between said points, and that it obtains no other right under the' contract.

This construction seems to us to be too narrow. It has the right to do a freight business over this line. In order to do a freight business, it must have tbn facilities for reaching out, and gathering up the freight. That is the purpose of these sidetracks. The “prompt and convenient moving” of empty trains would be a barren ideality; and the words of the contract would be as “sounding brass and tinkling cymbal” if they meant nothing more than that.

It is not true, we think, that the local business between Dayton and the junction was not provided for in the annual compensation to be paid by the plaintiff. The right to do a local business is included in the general grant.

Article five, which is also constructional, says:

“This agreement shall not be so construed as to prohibit the said party of the- second part from carrying freight or passengers to or from Dayton and the junction, or to or from any intermediate station. ’ ’

The implication is, this right has already been granted, but there is danger that it may be misconstrued.

It is not fairly inferable from article twenty-four that the compensation agreed upon was not in payment for the right to do a local business. That section reads:

‘1 The superintendents of the companies here contracting shall agree upon some convenient and equitable mode of doing the local freight business between Dayton and the junction, and equitably dividing the receipts for the same. ’ ’

As we understand this provision, it is that the superintendents of the two companies shall agree upon some joint, convenient and equitable mode of doing the local freight business, which each party has the right to do, singly, over one track; that is, while the train service must necessarily be separate, yet the freight, and the moneys received therefrom, may be handled jointly by one set of agents, at one line of freight depots, agreeing thát the receipts for the same'may be equitably divided, accordingly as the parlies furnish the train service, the stations, and pay the agents for handling the business. * * * It is another means of economy, which is the connecting thread, running clear through the contract. But whether the plaintiff does its own local business, or agrees with the defendants on a convenient and equitable mode of doing it jointly, it all the time has the right to do it, or the right to an equitable division of the receipts — the one or the other — because it’pays the stipulated compensation for the use of the road.

It is misconstruing this provision to conclude from it that the right to do a through business was to be paid for by the annual rental, and the right to do a local business was to be paid for by a division of the receipts therefrom. The receipts pay for doing the business, not for the right to do it, over the line. The annual rental pays for the right to do both kinds of business, through and local.

The argument, therefore, that the side-tracks are not included in the contract, because the right to use them is not paid for by the compensation stipulated for in the agreement, falls to the ground.

As was said by the learned judge who decided the case below, article eleven, which grants to the plaintiff the right to use the track to remove its. superstructure free of charge, was not made necessary because the plaintiff’s use was limited to any of the tracks, but because it was limited to doing the business of the company as a common carrier.

Confessedly the plaintiff had the right to use all the tracks then existing, for the transaction of its business proper, and none other could be used to remove its superstructure,

We find in the contract no words of limitation and no provisions, or stipulations, which deny or circumscribe the plaintiff’s right to use the road of the Dayton & Western Railroad Company, including its main track, all side-tracks constructed, or to be constructed as a part thereof, switches and water stations, between the junction at Dodson and the west bank of the Great Miami river at the city of Dayton, for the legitimate transaction of its business as a common carrier; subordinate only to the defendant’s preferential right to the necessary use thereof, for the trasaetion of its business, as a common carrier, as provided in article two of the contract.

The use of the road by the plaintiff, however, is limited to "all the trains required in the prosecution of its business.” as is stipulated in the first article of the contract.

It may "use said railway between said points, with the locomotives, cars and trains of the party of the second pari,” as is said in the preamble. It has not the right to license other railroad companies, in the prosecution of their own separate business, to run their trains, freight or passenger, scheduled or detoured, over this line for hire, without the consent of the defendant.

It has not the right to receive and discharge freight belonging exclusively to the business of other railroad companies, on the side-tracks of the defendant, in West Dayton, for switching charges, except as it may be authorized by the defendant.

What, of right, it may do over this line, is its own business as a common carrier, according to the general meaning and acceptation of that term.

All is well said by counsel for the plaintiff, in his brief, the test is not whose engines, or whose crews are operating, but whose business is being done on the line. Whatever comes to the plaintiff, under the widest comity between connecting and forwarding lines, and whatever it is required, under the law, to receive from other roads, and carry, is its own business, as much as what it may solicit along the line. But it is not authorized to burden this track, or these side-tracks, with special privileges, granted by it to other roads; and this, because it is itself a licensee.

Nevin, Nevin & KaTbfus, for plaintiff.

Charles Darlington, for defendant.

Accordingly a decree may be entered, enjoining the defendant from in any way interfering with the plaintiff’s right to use the track and side-tracks in question, to the extent, in the manner, and for the purpose hereinbefore stated; enjoining the plaintiff from the unauthorized use as herein defined. Each party will pay half the costs.


text:
    DEFICIENT BILL OF EXCEPTIONS.
    [Circuit Court of Summit County.]
    The Diamond Rubber Co. v. Addison H. McClurg.
    Decided, April, 1905.

      Bill of Exceptions — Shows on Its Face That It Does Not Contain AU of the Evidence, When.

    A bill of exceptions shows on its face that it does not contain all of the eveidence, thereby precluding a reviewing court from considering the weight of the evidence, where it appears therefrom that a part of the evidence in the lower court consisted of illustrations or demonstrations by models of machinery, and there is nothing in the bill to show where the witnesses and counsel stood with reference to the models, what they pointed out, and where they placed their hands except by such words as “here,” “there,” “like that,” and the word “indicating” in parentheses inserted by the stenographer.
    Winch, J.; Marvin, J., and Laubie, J. (sitting in place of Henry, J.), concur.
    Error to the Court of Common Pleas of Summit County.
   Defendant in error recovered judgment against plaintiff in error, by the consideration of the court of common pleas, for damages sustained by him in the loss of part of his left hand, which was caught between two large rollers of a machine in the rubber company’s works, by reason, as it is claimed by him, of negligence of the company in failing to warn him of certain latent hazards in the operation of said machine.

We are asked to reverse said judgment bemuse the verdict is said to be against the weight of the evidence.

The impossibility of this court reviewing the weight of the evidence will be apparent by reading a few extracts from the bill of exceptions. On page 10, question:

“Mr. Slherbondy, now suppose those are the rollers, Mr. Sherbondy (indicating to ■the witness by the use of two rolls of cardboard, and a sheet of paper, the rolls being marked Plaintiff’s Exhibit Rolls, and the paper being marked Plaintiff’s Exhibit Slab), and we will say this represents the slab of rubber and it is being batched out; a man stands here in this position, lays the rubber slab on the rollers like that, and, as you have said, because of the compound — now then, he has put his slab on there and because of the compound which should work into the slab it does not catch on the roller, so he puts his hands as you have described, or one hand on the side of the roller this way, pressing the slab down on the hot roller where it adheres; now, I ask you, what is liable to happen from this end of the slab turning over this way (indicating)? (Objected to; question withdrawn). ”

I have read the question to show that the models used here were made a part of the bill of exceptions and were before the court at the hearing in this court.

“Q. When he has put his hand oh this end' next him to press the slab against the hot roller and make it adhere, what may happen from the other end of the slab, the one farthest from him? A. Why, it is liable to turn back.

“Q. And do what? A. Catch your hands; that is, if your hands are above the center of the roll.

“Q. Suppose they are there (indicating) ? A. That is above the center.

“Q. You call this the center of the roll (indicating)? A. Yes, sir.

“Q. Away down here (indicating)? A. Yes, sir.

“Q. You don’t mean this center, the top of the center? A. No, the top — center.

“Q. Suppose that it is here (indicating), what is liable to happen from the slab of rubber? (Objected to.)

“A. Liable to catch your hands. (Objected to.)

“Q. If your hand is there? (Objected to.)

“A. Yes, sir. (Objected to.)

“Mr. Wilcox: The objection is that counsel insert elements in the question which do not appear to be the fact, and the second is the illustration, and the third is the guess of the witness in the answer.

The Court : These1 are at best, illustrations; he does not say what did occur there. I think he has' a right to describe the operation of that machine. I think I will let it stand so -far.

“Defendant excepts.

“Q. Mr. Sherbondy, I will ask you the question generally now, and you may, if you please, describe to the jury the operation—

“Mr. Wilcox: If Your Honor please, may I have inserted in the record in connection with that question, that counsel for plaintiff, by way of illustration, took the sheet of pasteboard representing the rubber slab and turned it over, indicating the manner in which counsel claims the plaintiff’s hand was caught?

‘ ‘ The Court : Yes. ’ ’

This shows that counsel for plaintiff in error fully understood that the record must show what was indicated by the witness, and yet this is all there is in the record anywhere exhibiting to this court what was so indicated. All through the record appear questions asked by counsel for both parties and answers given by the witnesses, illustrated by the use of the models referred to. Just where counsel and witnesses stood with reference to the models, what they pointed at, and where they placed their hands, are described in the bill of exceptions by such words as “here,” “there,” “like that,” and the word “indicating” in parenthesis, inserted by the stenographer.

Some of this testimony was illustrated to this court on the argument of the case by counsel, but they disputed each other as to the correctness of some of the illustrations and the record furnishes no means of determining which was right. Indeed, without a re-enactment of the scene by the witnesses who appeared before the jury, much of the record is unintelligible. Wé are, therefore, forced to say that the bill of exceptions shows on its face that it does not contain all the evidence. Certainly it does not put this court in the position of the jury so that it can, with equal facility, determine the weight of the evidence.

E. K. Wilcox, for plaintiff in error.

Geo. M. Anderson and F. V. Owen, for defendant in error.

For the reason stated, the judgment must be affirmed.


text:
    ASSESSMENTS IN ACCORDANCE WITH BENEFITS.
    [Circuit Court of Hamilton County.]
    Frances Kummer et al v. The City of Cincinnati et al.
    Decided, June 24, 1905.

      Assessment — Por Street Improvement — Benefits—Depreciation in Value of Property Toy City’s Act — Benefits not Based on Depreciated Value.

    A municipality can not adopt as a basis for estimating the benefits accruing to abutting lots from a street improvement the depreciated value of the lots at the time of the improvement, due to the fact that the street had been used as a dump for waste matter of all kinds, and had thereby become a public nuisance from which property values suffered.
    Giffen, J.; Jelke, P. J., and Swing, J., concur.
   The street improvement involved in this ease is the same ’as that in the case of Eliza R. Nulsen et al v. The City of Cincinnati et al, recently decided by this court (5 C. C.—N. S., 679), in which it was held that in making the assessment the board of public service did not regard or attempt to regard the benefits thereof to the respective lots, but apportioned the cost pnd expense of the improvement upon the lots abutting thereon in proportion to their respective frontages upon said improvement, and enjoined the collection of the assessment in excess of the special benefits conferred. The same result must follow in this case, unless the contention of the city that the street, prior to the improvement, being used as a dump for waste matter of all kinds and becoming a public nuisance, thereby depreciated the value of the abutting lots, which should be considered in estimating benefits. The city, however, had control of the street and by statute was charged with the duty of keéping it free from nuisance. It can not now make that which was occasioned by its own negligence the basis for depreciating the value of the property before the improvement, and thereby sustain the assessment.

Albert T. Brown, for plaintiff.

Frank H. Kunkel, for the city.

Considering the benefits conferred upon the lots in controversy as shown by the testimony and an actual view of the premises, we hold that the assessment upon lot 38 should be sustained to the extent only of fifty ($50) dollars, that being twenty-five (25) per cent, of its value after the improvement; that only one hundred and twenty-five ($125) dollars should be assessed against lot 106; that lot 131 should be assessed one hundred and sixty ($160) dollars, that being twenty-five (25) per cent, of the value of the lot after the improvement; lot 107, one hundred and twenty-five ($125) dollars. All in excess of such amounts, as well as the entire assessment on lot 125. will be enjoined.

The assessment on lots 82, 95, 96, 116, 117, 219 and 226 will be sustained for the full amount.

A decree may be drawn in accordance with the above finding.


text:
    CONTRACTS FOR. WORK ON THE CANALS.
    [Circuit Court of Summit County.]
    George W. Carmichael & Co., v. Patrick McCourt et al; and George W. Carmichael & Co. v. Daniel McCarry et al,
    Decided, April, 1905.

      Bids and Bidding — Injunction not Available to Rejected Lowest Bidder — Except He Sue in His Capacity as a Tax-payer — Contracts-Let by the Board of Public Works — Not Controlled by tihe Public Buildings Act.

    1. Although, injunction may be the proper remedy for preventing the award of a contract for public work to another than, the lowest bidder, it does not lie where the suit is' brought by the lowest bidder, unless he sue in his capacity of tax-payer, nr become the beneficiary of a suit brought by a tax-payer whom he may agree to indemnify against costs and expenses.
    2. The law relating to the canals and to the state board of public works is distinct from and independent of the provisions which in the Revised Statutes are grouped under the caption of “Public Buildings,” and concerning the letting of contracts for work on the canals there is a discretion which is not allowed under the public building code.
    Henry, J.; Marvin, J.; and Winch, J., concur.
    Appeal from the Court of Common Pleas of Summit County.
   These two actions come into this court on appeal, and were tried together. In each of them the plaintiffs, who were contractors, seek to enjoin the board of public works and certain rival contractors from entering into contracts for the supplying of materials and the performance of work for which the contractors last mentioned have been declared to be the successful bidders.

It is claimed that plaintiff was really the lowest bidder for the contracts in question and that the board arbitrarily and fraudulently changed the estimates in one case after the advertisement and bidding were completed, but before the award was made; and in the other case unlawfully combined certain bids for different portions of the subject matter of the bidding so as to render plaintiff’s lowest bid apparently, though not really, higher than those of his successful competitors.

Plaintiff bases his right to sue upon his supposed right as the lowest bidder under the advertisement and the law, and not upon his right as a tax-payer or citizen of the state of Ohio, to protect himself and others in like case from unlawful expenditure of public funds. There is no allegation in the petition in either case that the plaintiffs are citizens or tax-payers or residents or voters in Ohio. The plaintiff’s right of action moreover is based avowedly upon Chapter .1, Title VI. Revised Statutes of Ohio, entitled Public Buildings, Sections 785 to 794 whereof provide that no contract for public improvements shall be let, by municipal or other public officers therein mentioned, otherwise than upon advertisement and to the lowest bidder, except under circumstances and conditions not material here.

Defendants contend, however, first thajt plaintiff, in tjhe capacity of lowest bidder merely, can not maintain an action of this character, or of any character, on the facts of this case, because the advertisement expressly reserved the right in the board of public works to reject any and all bids, and, therefore, a rejected bidder, even though he be the lowest, has no right of action in the premises which the law will recognize or enforce.

The defendants further contend that the chapter on public buildings in the Revised Statutes, however appropriate the phraseology of particular sections thereof may seem to be to the facts of this case, can have no application to the canals or to the board of public works of the state of Ohio, both of which subjects have been for nearly a hundred years governed solely by a code of laws expressly applicable to them, and hence exclusive of the operation of the public buildings code, so-called, The only law, therefore, which is applicable, in their view, to this case is Section 218 — 44, Revised Statutes, which provides that contracts shall be awarded to the lowest responsible bidders, and which thus vests in the board a discretion finally and conclusively to determine who are the lowest responsible bidders with respect to the peculiar kind of improvements that the board of public works is empowered under the Constitution and the laws of Ohio to administer.

Upon the former question we were at first inclined to resolve in favor of the plaintiff the doubts expressed by the presiding judge on the hearing, and to follow the authority of Lake Shore Foundry v. Cleveland, 8 C. C., 671, a case which was decided by this court when it was differently constituted, and which apparently holds that a lowest bidder might, as such, enjoin a public officer from letting a contract to other than the lowest bidder wherever the law expressly forbids letting it to any other.

The syllabus in that case is, in part, as follows:

“When a city advertises for bids for water-pipe, and accepts a bid claimed to be invalid as not in conformity to the advertisement, the next lowest bidder may bring suit for injunction, without request under Revised Statutes, Section 1778, to the city solicitor to bring it.”

But a careful examination of that case discloses the fact that the Supreme Court decisions there cited, in support of the holding therein made, do not so decide. On the contrary, we find it is undoubtedly the law that although injunction may indeed be the proper remedy in such cases, it can not be mahtained by the lowest bidder, except he sue in the capacity of a tax-payer. See Colorado Paving Co. v. Murphy, 49 U. S. App., 17, the same case being reported also in 37 L. R. A., 630. The syllabus of that case is instructive:

‘ ‘ One who seeks relief from the courts for a breach of a duty imposed upon public officers by statute must show that he has a vested right to the discharge of that duty, and that the statute which imposed it was enacted for the benefit of himself and others in a like situation.

“If the duty was imposed for the benefit of another person or class of persons, and the complainant’s advantage from its discharge is merely incidental, and not a part of the design of the statute, no such right is created as forms the subject of an action at law or of a suit in equity.

“The usual provision in city charters that contracts for public work shall be awarded to the lowest reliable and responsible bidders was not enacted to furnish employment for contractors, or to benefit a bidder for such work, but with the design to benefit and protect the property holders and tax-payers of the municipalities.

“Tax-payers and property holders whose rights of property will be injuriously affected by the fraudulent or arbitrary violation of this and similar provisions of city charters may maintain a suit to enjoin such action by public officers whose duty it is to comply with them.

“But the lowest reliable and responsible bidder for a contract for public work has no such vested or absolute right to a compliance with such provisions of the statutes as will entitle him to maintain an injunction against their violation by public officials, because these provisions of the statutes were not enacted for his benefit, or for the benefit of his class.

“The presentation by a reliable and responsible bidder of the lowest bid for a contract for public work to officials whose duty it is, under the charter of a city, to let the contract to the Jowest reliable and responsible bidder, but who have the right, under the statute, to reject all bids, and who have given notice in their advertisement for bids that they reserve the right to reject any and all bids, does not constitute an agreement that they will make a contract for the work with such a bidder, nor does it vest in him such an absolute right to the contract as will authorize a court of equity, at his suit, to compel the officials, or the municipality they represent, to enter into a contract for the work with him, when they are about to award, or have awarded, it to a 'higher bidder.”

In the quotation just read we have in part anticipated the remaining question which is presented in this case. On consideration of that question we find that the plaintiff is further prevented from maintaining this action upon the principles announced, not only in the case just read, but also by this court in McClain v. McKisson, 15 C. C., 517; and we refer particularly to pages 528 and 531. That case was affirmed without report in 54 O. S., 673. The character of the action there is sufficiently indicated by the first paragraph of the syllabus, which I read for that purpose:

“A tax-payer may bring an action to restrain the city from entering into an illegal contract under Section 1777, Revised Statutes, after having requested the city solicitor to do so as required by Section 1778, Revised Statutes, and his refusal; although, one of the competing bidders for the contract, who may be the beneficiary of such action, has agreed to indemnify such tax-payer against all the costs and expenses he may incur thereby,” etc.

Reading now from the opinion of the court on page 528:

“Can the contract be awarded to one who is not the lowest bidder? This question involves an examination of the statutes, to determine under which provision this contract was let. Section 76 of the Federal Plan Law points out how the eity is to proceed in case of an improvement or repair or purchase of ■supplies, where the cost exceeds five hundred dollars; and paragraph 5 of that section provides:

“ ‘If the work bid for embraces both labor and material, they shall be separately stated with the price thereof.’ Paragraph 6 reads: x

“ ‘None but the lowest and best responsible bid shall be accepted when such bids are for labor and material separately, but the council may, at its discretion, reject all the bids, or accept any bid which may be the lowest aggregate cost, when recommended by the board of control.’

“This provision of paragraph 6 seems to refer entirely to cases where labor and material may be bid for separately; that' separate bids may be tendered and accepted when they are the lowest and best responsible bids; but if the fractional bids !áre not lower than any one bid which includes all the fractional parts, or is the aggregate of all of them, then the aggregate bid may be accepted.

“Section 794 (one of the sections of the chapter on public buildings) applies to cities and towns and villages, anjong other corporations and boards, but this section makes it imperative that the officer, board, or authority calling for the bid, shall require separate and distinct proposals to be made for furnishing the materials for doing the work, or both, in their or his discretion, for each separate and distinct trade or kind of mechanical labor or employment, or business necessary to be used in making such public improvement. In this respect the statute is similar to the one in the Federal Plan Law. It would seem from the notice inviting the bids, that the city was not proceeding, as_ to the character of bids, under either of these provisions of law. The notice fully provides for a pumping engine, and that all steam pipes, fixtures, water pipes, maj,us, valves and labor are to be furnished with the pump. The bid called for is a unit, and gives no opportunity to anyone to bid separately on material or labor or anything else called for in the notice. The Federal Plan Law places the water works of the city under the management of the director of public works of the city, who takes the place of the trustees, or board under the provisions as provided for in -the general law of the state pertaining to water works; and any authority in the law vested in the trustees or board is now vested in such director.”

The opinion proceeds to quote Sections 2415 and 2419, Revised Statutes, and then continues:

“The notice seems in all its parts and purposes to have been made under this section of the law. It is not made to harmonize with the purpose and intent of the provisions of the Federal Law, nor of the general provisions of the law as found in Section 794; nor do the bids in any manner purport to be made under those sections; and it is evident that,those sections were not intended to apply to a matter of this kind. And Section 2419 is one under which the city authorities had a right to call for bids. They have called for bids under this section. The bids have been made to conform to these provisions, and it is under this section that the authority of the city to award the contract is to be determined. This section gives to the city an option to award the contract to the lowest bidder, if in their opinion he can be depended upon to do the work with ability, promptness and fidelity; and if such be not the case, then they may award it to the next lowest bidder, or decline to contract. This section places this option entirely upon the opinion of the city authority, and the court certainly can not interfere with that opinion. ’ ’

Upon the reasoning of this court in that ease it is plain that the laws relating to canals and to the board of public works are distinct from and independent of those provisions of law which in the Revised Statutes are grouped under the caption of: Public Buildings. And we so hold.

That decision also illustrates the distinction whereby the law relating to the letting of contracts concerning the canals must be held to afOord a latitude of discretion as to awards which is greater than the public buildings code, if it applied, would allow.

It is claimed in this case, however, that the board of public works acted fraudulently in altering its estimates just before the awards v^ere made, but the testimony of the witnesses, Paul and Berkins, shows that, however desirous they or the board may have been to favor the successful bidders, there was enough excuse for the changes made to negative the imputation of fraud.

Rogers, Rowley, Bradley & Rockwell, for plaintiff.

Dayton A. Doyle and Geo. E. Jones, for defendants.

The petition, we hold, must be dismissed, for the reasons-stated.