text:
    EXTRA COMPENSATION OF COUNTY OFFICERS.
    [Circuit Court of Lucas County.]
    State, ex rel, v. William M. Godfrey.
    Decided, February 16, 1903.

      Omitted Taxes — Compensation to County Auditors for Collecting— Where Assisted hy Tax Inquisitors — Additional Cleric Sire on Account of Decennial Appraisement — Indexing Records of County Commissioners.

    1. The fact that an inquisitor is employed and paid for furnishing evidence to the county auditor, whereby property is placed on the tax duplicate which had been improperly omitted therefrom, does not deprive the auditor of the 4 per cent, compensation on the amount thus collected, provided for in Section 1071 relating to the fees of county auditors.
    2. A county auditor is entitled to receive for indexing the records of the county commissioners the same fees as other officers receive for like services.
    3..The provision in Section 1076 for an additional allowance to the county auditor for clerk hire, during the period when the decennial appraisement is being made of real property, is not limited to the year during which the reappraisement is actually made, but includes so much of the year following as may be necessary for the boards of equalization to complete their work, subject to the limitation of the statute requiring that this work be done before the fourth Monday in January of the second year following the reappraisement.
    Hull, J.; Haynes, J., and Parker, J., concur.
    Heard on error.
   This action was brought in the court below, State v. Godfrey, by the prosecutor in the name of the state of Ohio to recover certain sums from the defendant, William M. Godfrey, which it was claimed he had illegally drawn as auditor of Lucas county. There were five causes of action in the petition. An answer was filed to the petition, setting forth separate defenses to each cause of action. A demurrer was filed to each defense in the answer. The court of common pleas sustained the demurrer to the defenses to the first and fourth causes of action, and overruled the demurrer of the plaintiff to the defenses to the second, third and fifth causes of action. Subsequently, the plaintiff dismissed the fourth cause of action of its petition, and the parties not pleading further, judgment was then entered in the court of common pleas upon the first, second, third and fifth causes of action, in accordance with the ruling on demurrer.

The court below held, in passing upon the demurrer co the defenses to these separate causes of action, that a cause of action was not stated in either the second, third or fifth causes of action in the petition, and, therefore, the demurrer to the answers to these causes of action was overruled, which in effect was the same as sustaining a demurrer, had one been filed, to these various causes of action in the petition, and judgment was entered in favor of the defendant upon them. A petition in error was filed in this court to reverse the judgment of the court of common pleas as to these three causes of action. These causes of action must be considered separately.

The second cause of action in the petition is to recover $2,-768.91 upon bills presented by the county auditor for placing upon the tax duplicate of the county certain omitted properties and levies for taxes. The cause of action as set forth in the petition is as follows:

“That in the year 1900 the said William M. Godfrey drew out of and withheld and still withholds from the county treasury the sum of $2,768.91 upon certain bills presented by him for services rendered in placing upon the tax duplicate of said county certain properties and levies for taxes furnished by the tax inquisitor, a person employed by authority of Lucas county to furnish said information, and who was duly paid therefor by said county of Lucas out of said county treasury; that said bills were illegally presented, and there was not and is no authority at law for the allowance of the same or the drawing out of the money for the payment thereof, or for the withholding of the same from the said county treasury, and the state of Ohio should recover thereon from said William M. Godfrey the sum of $2,-768.91.”

This cause of action thus stated, and the answer to it, raises the question as to whether the auditor is entitled to four per cent, for placing omitted property upon the tax duplicate for taxation in counties where a tax inquisitor has been employed to aid him and furnish him with evidence in the performance of his duty, the tax inquisitor being paid a percentage by the county. The court of common pleas held, in passing upon the demurrer, that this cause of action as stated in the petition, did not constitute a cause of action against the defendant. The section which allows the auditor fees for such services is Section 1071, Revised Statutes, which provides:

“In addition to the compensation specified in the two preceding sections the auditors of the several counties shall receive the compensation provided by law for their services as members of the boards for listing railroads, and under the school laws, and as county sealers, and in filing away statements of taxable property, and also four per centum of the amount of tax collected and paid into the county treasury [on property], omitted and placed by them on the tax duplicate. ’ ’

This was passed June 3, 1871, and is found in 76 O. L., 117.

The statutes relating to the auditor’s powers and duties in respect to placing property upon the tax duplicate and his powers in regard to summoning persons before him in his investigations, and procuring evidence, are Sections 2781, 2781a, 2782 and 2783, Revised Statutes. These sections make it his duty to act in the matter of omitted property or false returns, and give him power to summon witnesses before him to testify in any investigation made by him. The general act relating to the employment of tax inquisitors is Section 1343-1, Revised Statutes. The act under which the tax inquisitor was employed in this county is Section 1343a, Revised Statutes, and is as follows:

“That the county commissioners, county auditor and county treasurer, or a majority of said officers of any county in this state containing a city of the first class, and in any county containing a city of the first grade of the second class, shall have full and final power to employ any person or persons to ascertain and furnish to the county auditor the facts and evidence necessary to authorize him to subject to taxation any property improperly omitted from the tax duplicate; no payment for such services to be made except in accordance with the terms of an agreement between the said officers, or a majority of them, and such person or persons; and such payment shall be made to such person or persons only out of money actually paid into the county treasury as taxes on such omitted property; and such compensation shall be apportioned ratably by the county auditor among all the funds entitled to share in the distribution of such taxes, including the state itself, as well as the counties, townships, cities, villages, school districts, and other organizations entitled thereto. ’ ’

The claim is that in counties where an inquisitor is employed and paid for furnishing the evidence to the auditor, the auditor is not entitled to the four per cent, on omitted property which he places upon the tax duplicate, as was allowed and paid in this case.

There is no reference to the inquisitor statutes in Section 1071, Revised Statutes, which provides for the payment of this percentage to the auditor, so that there is no express repeal of that provision or exception, where inquisitors are employed, but it is urged that the inquisitor performs all of the duties, when he is employed, which the auditor is required to perform in the premises, and therefore that the auditor should not have and is not entitled to any compensation; that the inquisitor takes the place of the auditor; that he procures the property to be placed upon the tax duplicate, and that the auditor has nothing to do except to perform the clerical act of entering the property upon the duplicate; and that' therefore the inquisitor is the only one who is entitled to pay for the services in such cases. ■

The powers and duties of the auditor in this matter have been before the Supreme Court in one or two cases. It has been held that the auditor in this matter acts not entirely in a ministerial capacity; that his duties are of a quasi judicial character; that it is his duty to hear the evidence that may be offered before him; that the tax-payer himself may appear and give his own evidence and any other evidence that he may see fit to offer; that evidence may be offered upon the other side; and that in the end, after all the evidence is in, it is the duty of the auditor to act in a quasi judicial capacity and to determine the question whether the property should be subjected to taxation and placed upon the tax duplicate or not.

His compensation for these services, under Section 1071, Revised Statutes, does not depend upon the actual amount of labor which he performs or the volume of testimony which he considers in performing this duty, bnt depends upon whether in the end he puts the property upon the tax duplicate, and whether finally taxes are collected upon that property and paid into the county treasury. In the case of State v. Crites, 48 Ohio St., 142, the Supreme Court held that if an auditor refused to act in a case of this kind where evidence was offered him tending to show that a tax-payer had omitted to return property, he might be compelled by a writ of mandamus to act. The court say in the third paragraph of the syllabus:

“It is the duty of a county auditor to act under Sections 2781 and 2782, Revised Statutes, whenever he is informed or has reason to believe that property has been improperly omitted from the tax duplicate of the county. If he declines to act upon the reasonable information, a petition in mandamus, by a relator who seeks to compel him to act, is sufficient, if it states facts showing that there was reason to believe that property had been improperly omitted from the tax duplicate.”

The auditor in this ease acted in obedience to the writ, and required Mr. Brice to appear before him. The relator in the case was the tax inquisitor of Allen county. The auditor heard the evidence furnished by the relator, and also took the testimony of Mr. Brice himself, and perhaps other testimony offered in his behalf, and then acted, as he claimed, according to his own judgment and discretion in placing property upon the tax duplicate. The inquisitor not being satisfied with the action of the auditor, filed a motion in the Supreme Court to attach.him for contempt of court, and set forth his various grounds of complaint. This motion was denied, and the Supreme Court say in the third paragraph of the syllabus of the ease, State v. Crites, supra:

“The remedy by mandamus, while appropriate to compel an officer to proceed in a judicial or quasi judicial matter confided by law to his jurisdiction, can not be invoked to correct his errors, or control his discretion.”

And in the opinion, which was delivered by Judge Bradbury, on page 464, the court say:

“The first clause of the motion seems to assume that the peremptory writ commanded the respondent to conduct the investigation upon the evidence submitted to him by the relator. This is not correct. An examination of both the peremptory writ and the opinion delivered in the ease, will not disclose any purpose in this court, when it awarded the writ, to prescribe to the respondent the evidence he should consider when making the investigation. It commanded him to proceed in the matter, but left his discretion untrammeled, not only as to the testimony he should consider, but also as to the conclusion he might reach. ’ ’

On page 415 of the opinion this is found:

“The respondent was acting in a quasi judicial capacity; he had assumed jurisdiction and entered upon the investigation; the law imposed upon him the duty of hearing and weighing evidence and rendering a decision upon it. This, necessarily, involved the exercise of judicial discretion. ’ ’

The court finally overruled the motion and discharged the rule at the cost of the relator, and held that while the court might compel the auditor to act in the premises, it could not tell him how to act, nor could his errors of judgment be reviewed upon a motion for attachment for contempt of court.

In Probasco v. Raine, 50 Ohio St., 378, the court held, as laid down in the syllabus:

“The fee of four per centum to county auditors, provided for by Section 1071, Revised Statutes, does not disqualify such auditors from performing the duties, and exercising the powers imposed on them by Sections 2781 and 2782, Revised Statutes.”

And in discussing the question Judge Burket in the opinion, on page 391, says:

“To have equality in taxation, all property must be brought upon the duplicate. Some officer must be authorized and empowered to cause all property to be listed for taxation. Such officer must be paid for his services, either by fees or salary. The Legislature has full power under the Constitution to say what officer shall perform such duties, and in what manner he shall be paid.
“It was enacted that such duties shall be performed by the auditor, and that he shall be paid as provided in Section 1071. In the opinion of the Legislature this is a proper means to attain, in part at least, equal taxation. It matters not whether the auditor acts judicially or ministerially in the discharge of his duties. The Legislature is free to employ such means, as in its opinion, shall be most effective, whether they be judicial or ministerial, or both.”

Further along on this page the court say:

“A probate judge acts judicially in the appointment of guardians and administrators, and receives a fee for each appointment, and yet such fee does not disqualify him from acting in the premises.”

Attention is called to these decisions of the Supreme Court to show in what capacity the auditor acts, and that in the opinion of the court he is paid, and properly paid, for sitting in this gitasi-judicial capacity, and determining whether property shall be placed upon the tax duplicate or not. As they say, whether it is a judicial act or a ministerial act, he is the tax officer of the county, and it is proper that some officer should perform this service, and proper that his compensation should be provided for by the Legislature. As already said, his compensation does not depend upon the amount of labor that he performs in any given ease.

In the case of Gager v. Prout, 48 Ohio St., 89, the only evidence before the auditor was a certified copy of the inventory filed by the executor of the estate of a deceased person. The court held, in the fourth paragraph of the syllabus, that in the absence of anything to the contrary, that was sufficient to warrant the auditor in making the additions.

The tax inquisitor acts in an altogether different capacity. He exercises no judicial functions. ■ He does not determine whether the property shall go upon the tax duplicate and be subject to taxation or not. He is employed to assist the auditor in procuring evidence in investigations of this kind; employed to furnish the auditor with evidence of omitted property, as stated in the statute, “To make inquiry and furnish the county auditor the facts as to any omissions of property for taxation, and the evidence necessary to authorize him to subject to taxation any property improperly omitted from the tax duplicate.” He is an officer authorized by law and whose duty it is to aid in bringing omitted property upon the tax duplicate by furnishing evidence. As was held by the Supreme Court, the auditor is not required to rest upon the evidence or facts furnished by the inquisitor; he may make further investigation. If he is not satisfied that the evidence of the inquisitor is sufficient, he may procure further evidence, if possible, to warrant him in placing property on the tax duplicate, or as in the Brice case, State v. Crites, supra, he may call the property owner himself before him, and interrogate him, and procure evidence from whatever source he desires; and when the evidence is all in, that furnished by the inquisitor as well as that coming from other sources, the auditor in all eases exercises hs own judgment, and he himself if that action is taken, in the end, place the property upon the tax duplicate.

In our judgment the court of common pleas was right in holding that no cause of action was stated in the second cause of action of the petition; that the inquisitor statute does not repeal or modify by implication Section 1071, Revised Statutes, which relates to the fees of the auditor; that the auditor is still entitled to his four per cent, notwithstanding the fact that an inquisitor was employed and aided him in these matters. Repeals by implication, it has been said by the Supreme Court of this state, are not favored. State v. Dudley, 1 Ohio St., 437, 441—an opinion by Judge Ranney:

“As repeals by implication are not favored, the repugnancy between the provisions of two statutes must be clear, and so contrary to each other that they can not be reconciled, in order to make the latter a repeal of the former. This rule is the result of a long course of decisions, and we know of no reason why it does not equally apply, when the repugnancy is alleged to exist, between a constitutional provision and a legislative enactment. ’ ’

This question was before this court in a case in Williams county, an unreported ease, and the opinion was not preserved. Had it been reported, it would not have been necessary to have discussed this question as fully as it has been considered here, if at all. The case is Hamet v. Marshall. The court held in that case, after full argument, where the facts were the same as they are here, that the auditor was entitled to his four per cent. We therefore find no error in the judgment of the court of common pleas in its action in regard to this cause of action.

The third cause of action was also held by the court of common pleas not to constitute a cause of action against the defendant. It is as follows:

“That in the year 1900 the said William M. Godfrey drew out of and withheld from the county treasury the sum of $200 on account of a bill presented for indexing the journal and minutes of the board of county commissioners for the preceding year; that the said money was illegally drawn out of and withheld and is now withheld from the said county treasury without any warrant of law, and the said state of Ohio should recover from said William M. Godfrey, to be returned into said treasury of Lucas county thereon, the sum of $200.”

An answer was filed to this cause of action and a demurrer filed to that answer. The court, however, held as to this cause of action, as in the former, that the demurrer to the answer searched the record, and that this did not constitute a cause of action against the defendant. The cause of action with the answer filed to it raises the question whether the auditor is entitled to eompenation for indexing the journal and minutes of the commissioners. His claim is based upon Section 850, Revised Statutes, which provides:

“The clerk shall keep a full and complete record of the proceedings of the board, and a general index thereof, in a suitable book provided for that purpose. * * * And in counties where no index has been made of such record, the commissioners thereof are hereby authorized to cause an index to be made of such past records for such period of time subsequent to the first day of January, A. D. 1880, as the judgment of the county commissioners may determine; and the clerk shall receive for indexing, provided for in this section, such compensation as is provided for like services in other eases. ’ ’

There is no provision in any “other case” or in any other statute for giving the auditor compensation for indexing, and it is therefore urged by counsel for plaintiff in error that there being no “other eases” for an auditor to perform like services, that this is equivalent to allowing no compensation, and therefore that the auditor should have no compensation for this service.

It is urged upon the.other hand that this should be construed to relate to the eases of other county officers who keep similar indexes, and that the auditor should have a reasonable compensation, according to the allowances given to other officers for keeping such or similar indexes. There are many county officers that are paid under the statutes for keeping such indexes. The sheriff, under Section 1212, Revised Statutes, receives ten cents for indexing; the clerk of courts, under Section 1257, Revised Statutes, receives fifteen cents each for indexing, and under another section for a different kind of indexing, eight cents. Section 1183, Revised Statutes, provides that the county surveyor for a portion of his services shall receive “the same fees as those of other officers for like services. ’ ’ Under Sections 1155 to 1157 the county recorder is allowed ten cents for indexing. So that it appears there are many cases where county officers do receive pay under the statutes for indexing. It seems to us to be clear from the language of this section that it was the intention of the Legislature that the auditor should receive compensation for these services. The language of Section 850, Revised Statutes, is that he “shall receive for indexing, provided for in this section, such compensation as is provided for like services in other cases. ’ ’

There is no claim in argument, but it is conceded, that the allowance made in this case was a reasonable one, if any can be made, and not in excess of'the amount allowed to other officers for like services. The amount allowed, it is said, was the same as that given the recorder by statute. If the Legislature had intended that the auditor should receive no compensation for these services it would have been a very easy matter to have said so, or to have said nothing and let it be covered by his general compensation, because it is not exactly certain under this statute what he is to receive; but if the provisions of the statute may be enforced and the intention of the Legislature carried out, that should be done, and the statute should be construed to sustain it in all of its parts, if it can be so done reasonably, by the courts. As appears from the statute relating to county surveyors, there is a provision there somewhat similar to this, that he shall receive “the same fees as other officers for like services.” ' It is not the best way to express a thing of this kind in a statute. It would have been better for the Legislature to have stated exactly what the auditor was to receive; but for some reason the Legislature did not express it in that way, but left it as it is written. We think that this provision of the statute can not be disregarded or set aside by the courts, and that the auditor is entitled to his compensation as provided for in this section; and no complaint being made that the allowance made to him in this case was unreasonable or excessive as compared to that given to other officers, we find no error in the action of the court of common pleas in holding that this cause of action in the petition did not state a cause of action against the defendant, and therefore overruling the demurrer to the answer.

The fifth cause of action seeks to recover from the defendant $568.44 drawn from the county treasury in the first four months of 1901, being $142.11 monthly for clerk hire growing out of work performed in connection with the duties of said office on account of the decennial appraisement. The auditor claims the right to draw this money under Section 1076, Revised Statutes, which reads as follows:

“The county commissioners of the several counties have authority, and are required, to make an additional allowance to the county auditor for clerk hire, not exceeding twenty-five per cent, of the annual allowance made in the preceding sections in the years when the real property is required by law to be reappraised.”

The decennial appraisement involved here commenced in the year 1900, and the appraisers were elected and made appraisment in the year 1900. It is claimed by the plaintiff that under this section of the statutes the auditor is not permitted to draw clerk hire except for the year 1900; that by the language of the statute this is limited to that year. He drew also for the first four months of the following year (1901) at the rate of $142.11 a month, in all $568.44. No question is made in the petition as to the amount he drew, but the claim is made that he was not entitled to draw anything. It appears from the answer that was filed to this cause of action and the contrary is not alleged in the petition, that the auditor drew twenty-five per cent, only of the annual allowance provided for in Sections 1069 and 1070, Revised Statutes, for those four months. The contention is whether the words in the statute, “In the years when real property is required by law to be reappraised,” apply only to the year 1900, when the decennial appraisers actually appraised the property, or whether they shall apply not only to that year, but to the following year, if the whole of that year is necessary for the action of the various boards of equalization and otherwise in completing .the appraisement, up to the fourth Monday in January of the year 1902, when the work was required to he finished.

The court of common pleas held on the demurrer to the answer that this cause of action as set forth in the petition did not state a cause of action against the defendant; that this language of the statute covered not only the year 1900, but so much of the following year' as might be necessary for the action of the various boards.

The purpose of this section of the statute is evidently to allow the auditor compensation for the additional clerk hire that is imposed upon him by reason of the decennial appraisement of real estate. The statute itself does not provide that this shall be confined to the year when the district appraisers act in the appraisement of property, but it is only confined to the years when the real property is required by law to be reappraised. The actions of the various boards subsequent to the action of the appraisers in appraising the property is as necessary to a complete reappraisement and revaluation of the property as the action of the appraisers, and in our judgment the court of common pleas was right in its action in this behalf, and it did not err in holding that this cause of action, as set forth in the petition, did not state a cause of action against the defendant.

The decision of Judge Pugsley, who decided the case in the court of common pleas, was furnished to us, and is full and clear upon all of the questions involved in this case, and from it I will read an extract upon this last question. The various statutes are collected there, and the questions discussed clearly in State v. Godfrey. He says:

“The sole question, therefore, raised by the petition is, whether, under the law, the commissioners were authorized to allow to the auditor for clerk hire any sum expended in 1901. The language of Section 1076, Revised Statutes, is: ‘clerk hire in the years when the real property is required by law to be reappraised. In what years does the law require the real property to be reappraised?’ I find nothing in the statute which can be construed to require the reappraisement to be made in the year 1900, or to mean as matter of fact or law that the reappraisement is made in 1900. It is true that the work of the district assessors in valuing the real property was to be performed in 1900. It was to be performed after March 1, 1900, and before the first Monday of July, 1900, when they are required to make their returns to the county auditor. Sections 2789 and 2798, Revised Statutes. But the work of the district assessors does not constitute the decennial appraisement; it is only a part of it. After errors and omissions in the assessor’s returns are corrected by the county auditor, they are then submitted to the decennial county board of equalization and the decennial city board of equalization, who proceed to equalize the valuation in the manner prescribed by law. The county board of equalization was required to convene on the third Monday of July, 1900, and to close its session on or before the first Monday in October, 1900. Section 2813, Revised Statutes, 94 O. L., 336. The city board of equalization was required to convene on the first Monday of August, 1900, and to close its session on or before the first Monday of October, 1900. Secton 2815, Revised Statutes, 94 O. L., 337. After the equalization by these boards is completed, the county auditor is required to transmit to the state auditor an abstract of the property, with the valuation as returned by the assessors and equalized by said boards. The decennial state board of equalization is then required to equalize the value of the property returned in the abstracts furnished by the several county auditors among the towns and counties in the state. And this board was required to meet on the first Tuesday in December, 1900, and to close its session on or before the first Monday of May, 1901. Section 2818, Revised Statutes, 94 O. L., 337. After the equalization by the state board is completed, it is then the duty of the state auditor to transmit to the county auditors a statement of the per centum as fixed by the state board, to be added to or deducted from the valuation, and it was the duty of the county auditor, on receiving such statement, to proceed forthwith to add to or deduct from each tract or lot of land in his county the required per centum. It was then the duty of each of the decennial boards of equalization to meet as a board of revision; the decennial county board on the first Monday of May, 1901, and to close its session on or before the fourth Monday of September, 1901, and the decennial city board to meet on the first Monday in June, 1901, and to close its session on or before the fourth Monday of January, 1902; and the county auditor after that was required to correct the tax duplicate according to the deductions and additions ordered by the board of revision. Section 2814a, Revised Statutes, 94 O. L., 247. All these proceedings to which I have referred are an essential part of the decennial appraisement. So that the time in which the real property was required to be reappraised ran all through 1901, and did not expire until the fourth Monday of January, 1902. My conclusion, therefore, is that the expense of additional clerical help necessarily employed by defendant in 1901, is the proper subject of allowance under Section 1076, Revised Statutes. If that view is correct, the petition does not show that the amount drawn by the auditor in 1901 was illegally drawn. Having reached that conclusion, it is not necessary to consider the other questions discussed by counsel for the defendant.”

We agree with the learned judge who delivered the opinion in this conclusion. This amount of $142.11 per month drawn by the auditor for these four months was twenty-five per cent, of his allowance as provided for by Sections 1069 and 1070, Revised Statutes. Section 1076, Revised Statutes, provides, as read, that the granting to the county auditor of not to exceed twenty-five per cent, of the annual allowance made in the preceding sections is required to be done.

A question is made as to what is meant by the words “preceding sections;” whether those words relate only to Sections 1067 and 1070, Revised Statutes, which cover’ annual compensation, or whether they relate also to Sections 850, 1074, and 1075, Revised Statutes, which relate to other compensation to the county auditor. It is not necessary to decide that question in passing upon this case, as the compensation under consideration here was fixed on the basis of twenty-five per cent, of the allowance made to the auditor under Sections 1067 and 1070, Revised Statutes, only. However, without deciding the question at this time as to the right of the auditor to have any further compensation than what is claimed for these four months, to-wit, twenty-five per cent, of his compensation as allowed, under Sections 1067 and 1070, Revised Statutes, we will say that we think it is extremely doubtful whether he could be permitted to include also the compensation allowed him under Sections 850, 1074 and 1075, Revised Statutes, as a basis for the twenty-five per cent. The question is an important one, and we only go thus far in expressing our view upon it.

C. E. Sumner, Prosecuting Attorney, and W. H. A. Read, for plaintiff in error.

Brown & Geddes, for defendant in error.

The opinion of the court below was full and clear upon all of the questions in the case, and we have reached the same conclusion. The judgment of the court of common pleas will therefore be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    CONTRACTS OF RELEASE FOR CLAIMS FOR INJURIES AGAINST RAILWAYS.
    [Circuit Court of Clark County.]
    Henry J. Bowers v. Detroit Southern Railroad Co.
    Decided, June, 1904.

      Constitutional Law — Section 3365-20 Construed — Contracts of Release for Claims for Injury or Death — Mutuality of Contract — Public Policy as to Employment of Injured Persons by Railroad Companies.

    1. Section 3365-20, declaring void all contracts and agreements whereby claims for damages against railroad companies for personal injuries or death are waived, does not apply to claims arising prior to the execution of such contracts of release.
    2. It is not against public policy to permit a railroad company to employ persons who have been injured in its service at such labor as they may be able to perform.
    3. A contract of re-employment for no stated time, in no stipulated capacity, and for no designated wages lacks mutuality; but when it is averred in an answer based upon such a contract that the plaintiff was re-employed by the defendant and continued in its employ until such time as he voluntarily relinquished the employment, such answer is good against demurrer.

      "Wilson, J.; Sullivan, J., and Dustin, J., concur.
   The plaintiff in error filed a petition in the court below to recover from the defendant for injuries occasioned by the alleged neglect of the defendant. To the petition the defendant interposed an answer, the second defense in which is as follows:

“Second. And for a second defense defendant says that on the 18th day of November, 1902, said plaintiff, in consideration of his re-employment by said defendant, released said defendant from any and all claims that he had against said company arising out of any injuries which he may have sustained by the accident set forth in the petition; and thereupon, in consideration of said release the said defendant re-employed said plaintiff and continued to retain him in its employ until such time as the said plaintiff voluntarily left the employ of said defendant. A copy of said release is hereto attached, marked Exhibit ‘A.’ ”

A demurrer was interposed to this defense by the plaintiff and overruled, and thereupon, the plaintiff not desiring to plead further, judgment was had for the defendant and the petition dismissed.

It is claimed on the part of the plaintiff in error that the contract pleaded in the answer was void by reason of the provisions of Section 3365-20 of the Revised Statutes. The part of that section which applies directly 'to this case is the latter clause, which reads:

“And no railroad company, insurance society or association, or other person, shall demand, accept, require or enter into any contract, agreement, stipulation with any other person about to enter or in the employ of any railroad company whereby such person stipulates or agrees to surrender or waive any right to damages against any railroad company, thereafter arising for personal injury or death, or whereby he agrees to surrender or waive in case-he asserts the same, any other right whatsoever, and all such stipulations and agreements shall be void, and every corporation, association, or person violating or aiding or abetting in the violation of this section shall for each offense forfeit and pay to the person wronged or deprived of his rights hereunder the sum of not less than fifty dollars nor more than five hundred dollars to be recovered in a civil action.”

The injury which is the predicate of the claim for damages in this case was incurred before the execution of the contract of release, which, is- challenged by the demurrer. The language of the statute is specific that as to personal injury or death, the right to damages which can not be released is one thereafter arising. The further language — ’“whereby he agrees to surrender or waive, in case he asserts the same, any other right whatsoever” — does not broaden the inhibition as to a claim for personal injury. The contract in question does not come within the statute.

It is claimed it is void as being against public policy; that to permit a railroad company to enter into a contract of this ldnd would favor the employment of incompetent persons in the service of the corporation, and endanger the safety of the public.

We incline to think it is not so, for the reason that the railroad company would still be held to the rule that it is liable for failure to employ competent servants in all departments, and it ought not to be held against public policy to permit a railroad company to employ persons who have been injured in its service, in such capacity as they may be able to serve, as it often furnishes employment to persons who might not otherwise be able to obtain it.

It is said that the contract is without consideration and wants mutuality. There is -attached to the answer a copy of -a contract which is marked “Exhibit A.” It is not made part of the answer, however, and can not be looked to for the purpose of determining the demurrer. We can only look to the averments in the answer. We are free to say if the contract were pleaded so that the court could look to it, we would very seriousy question whether that form of contract would impart any consideration. Re-employment for no stated time, only as may be satisfactory to said company — in no stipulated capacity —for no designated wage — does not imply mutuality. But the averments in the answer are broader: “in consideration of his re-employment by said defendant, the plaintiff released said defendant from any and all claims that he had against said company arising out of any injuries which he may have sustained by the accident set forth in the petition; that thereupon, in consideration of said release, the said defendant re-employed said plaintiff - and continued to retain him in his employ until such time as the said plaintiff voluntarily left the employ of the defendant.”

C. E. Ballard, for plaintiff in error.

Oscar T. Martin, for defendant in error.

The answer is not demurrable on that ground.

In the case of Judy v. Louderman, 48 O. S., page 563, the second syllabus reads:

“While it is necessary that the consideration of a promise should be of some value, it is sufficient if it be such as could be valuable to the party promising; and the law would not enter into an inquiry as to the inadequacy of the consideration, but will leave the parties to be the sole judges of the benefits to be derived from their contracts, unless the inadequacy of consideration is so gross as of itself to prove fraud or imposition.”

We do not think the contract, as averred in the answer, is of that character. The demurrer was rightly overruled, and the judgment of the court below is affirmed.


text:
    STREET IMPROVEMENTS.
    [Circuit Court of Auglaize County.]
    Eli Burke et al v. The Village of Wapakoneta, Ohio, et al.
    Decided, April 23, 1904.

      Street — Improvement of, by Petition — In Counties not Containing a City of the First Class — Discretion and Duty of Council — A Drain or Sewer Properly Included in the Improvement, Though not Petitioned for — Method of Assessment — Benefits.
    1. In constructing a street improvement for which petition has been made, it is the duty of council and its members to avoid any abuse of discretion either in the character or cost, and to exercise good judgment in making the improvement permanent in so far as its character imports durability and permanence, and to require that it shall be done in a workmanlike manner and without extravagance.
    2. Where it is found necessary in order to complete the improvement to lay a 15-inch drain or sewer, there is authority in council so to do under the power granted by the Legislature to build the street, notwithstanding the drain or sewer was not requested in the petition, and might have been constructed as a separate improvement.
    3. It is. also within the power of council to appoint an engineer to take charge of the work, and where the one appointed has performed this work for many years for the village, and the fact of his appointment is a matter of common knowledge, the use of the words “office of the city engineer” in the advertisement for bids is not misleading, although the appointee has 'no separate office which is kept open at all times during business hours.
    4. A failure to publish the ordinance providing for the improvement for the requisite time after it became effective is not such a vice in the proceedings as to affect the validity of the assessment, where there is nothing to indicate that any property owner was prejudiced thereby.
    5. Where there is no claim that the expense charged against an improvement was not incurred, and no criticism as to the cost of the work or of the material, and no question as to the benefits resulting to the property, and all was done with the full knowledge and acquiescence of the property holders, the collection of the full amount of the assessment will not be enjoined on the ground that there was more included in the improvement than council was authorized to include under the petition.
    Norris, J.; Mooney, J., concurs; Day, J., not sitting.
   This case comes into this court on appeal and is submitted upon the second amended petition, the answer thereto and the evidence. The action is to enjoin the collection of amount for street improvement.

The plaintiffs, sixteen in number, each of them own lots abutting on East Auglaize street in this village. The method of assessment is by the foot front. They claim as reasons for enjoining the assessments that—

1. That the council has passed no resolution finding and decreeing the necessity of the improvement of the roadway.

2. The council passed no ordinance ordering and providing for the improvement of the roadway.

3. That as a part of said assessment is the cost of constructing a main sewer for a large sewer district; that the council passed no resolution declaring the necessity of the construction of the sewer, and passed no ordinance providing for and ordering the building of said sewer, and that the action and proceedings of the council concerning the necessity for the improvement of said street, and the making of said sewer, and providing for and ordering the improvement of the roadway and the building of the sewer are illegal and void, for the reason that such resolution and such ordinance each contain two separate and distinct subjects, and provide for two separate and distinct improvements. That such ordinance provided that the clerk of said village should advertise for bids for making said improvements; that the ordinancee was published for the first time on January 3, 1901; that on the same date, and before said ordinance was in force, the clerk caused the advertisement for bids to be published, and the same was published thereafter in four consecutive issues of two newspapers published in said village, thus publishing said advertisement only three times after such ordinance was in force, and that the bid of the contractor to whom said work was awarded was made in response to such advertisement. It was stated in said advertisement that the specifications and plans for said improvement were on file in the office of the village engineer, when in fact there was no such office or officer of said village, and that the contract and the performance of it, for these reasons, in no wise effected to charge the costs of said work on the abutting property of the plaintiffs,

4. The council passed no resolution finding and declaring the necessity of said sewer improvement, and passed no ordinance ordering and providing for the construction of it.

5. The village of Wapakoneta is not situated in a county containing a city of the first class, and the assent, in writing, to' levy a special assessment upon property abutting on said improvement to pay the costs and expenses of the same was not given by a majority of the owners of abutting property, and, for want of such assent of such majority, the council never acquired jurisdiction to levy said special assessment upon plaintiff’s said lots.

6. The levy is without notice to plaintiffs; without opportunity given to plaintiffs to be heard in relation to the validity or amount thereof.

7. The legislative enactment under which the council proceeded, namely, title 12, division 7, chapter 4, of the Revised Statutes of this state, are unconstitutional, being particularly inimical to Section 19 of Article I of the Constitution of this state, and in violation of the Fourteenth Amendment to the Constitution of the United States, because said enactment invades and violates private property without due process of law.

Plaintiffs say that said assessments should be reduced, because :

1. Said street, when the improvement was commenced, had been graded to an established grade, and drained and gravelled, and the assessment here in controversy greatly exceeds the benefits, and by reason of this said assessment should be reduced at least thirty dollars as to each lot less than that as made.

2. The report of the board of appraisers referred to in Section 5 of the ordinance of the council is unfair in this: Lots 878, 879, 880 and 881, and lot 435 were appraised at less than their value, so that under the law limiting assessments to 25 per cent, of value, the effect as to these lots, as appraised, is to throw more than a fair proportion of the costs of the improvement upon the lots of plaintiffs.

3. That because of no resolution finding the necessity, and no ordinance providing for the building of said sewer, the council had no authority to assess any part of the expense incident to said sewer on plaintiff’s said lots, and that said assessment should be reduced by an amount equal to the expense of said sewer construction so assessed.

4. The sewer empties into a tank sewer at Water street, and extends to Wood street, consisting of 1194 feet of 15-inch sewer-pipe; 70 feet of 10-inch sewer-pipe; 717 feet of 6-inch sewer-pipe; 46 feet 15-inch T-pipe; 12 feet 10-inch elbows, four man-holes and fifteen catch-basins, the total cost of which, including labor, amounts to $1,305. No opportunity was given plaintiffs to be heard concerning the plans and specifications of said sewer, and because of this as another reason, the council acquired no jurisdiction to assess the costs and expenses on the lots of plaintiff.

5. The sewer is larger and is laid deeper in the ground than necessary to drain the lots or the street and roadway, but is made to drain intersecting streets, and the assessment was arbitrary and without consideration of benefits, and for this reason the amount should be reduced as to each at least $25. Since the publication of said assessment ordinance, the council conducted from Wood street into said sewer a 12-inch sewer— another sewer 949 feet long; that this is in fact a continuation of said Auglaize street sewer, yet no part of the Auglaize street sewer was levied on the lots or lands abutting on Wood street, and for each of these reasons and for all of them plaintiffs seek to enjoin the collection of said assessment and every part of it, because the same is thus void.

The answer denies the averments of the petition which ■attack the legality of the assessments, and which are assigned as grounds for the injunction, and the issues thus tendered are upon the evidence submitted to this court on appeal.

The evidence presents these facts: On the 15th day of May, 1901, a petition was presented to the council of the village of Wapakoneta asking for the improvement of Auglaize street' from the east rail of the C. H. & D. Railway track to the west line of Wood street by paving, setting curbing, grading, etc., said street, and requested that the cost of said improvement be assessed upon the abutting property. • Their petition was duly referred to their committee on streets, with instructions to ascertain whether or not a majority of the property owners to be assessed were in favor of the improvement and desired the council to permanently improve the street. Their committee reported that such majority had signed the petition, ■and the council accepted and adopted the report.

On the 21st day of May, 1901, an ordinance was passed to establish a grade on East Auglaize street, and on the 29th day of May, 1901, the engineer having been directed in that behalf, presented to the council plans and specifications for paving and improving said street and the estimate of cost of said improvement and an outlet sewer at Water street. This report of the engineer and his plans and specifications were approved by the council.

On the 5th day of June, 1901, a resolution was passed by the council, two-thirds of the members concurring, declaring the necessity of the improvement, grading, draining, curbing, paving and otherwise improving said street in accordance with said specifications then on file in the office of the engineer, declaring that a majority of the property owners had signed the petition for said improvement, and declaring that a majority of the property owners to be charged with the cost of said improvement, having petitioned in that behalf, the cost of said improvement (less intersections, etc.) be assessed per foot front on the lots abutting the portion of said street to be improved, and directing the village clerk to publish the resolution, etc., and appoint Nicholas Schubert to serve legal notices of the passage of the resolution on the owners of property abounding and abutting the proposed improvement and make his. return of such service to the council. Schubert made such service vouched by his return and affidavit on all the owners of property abounding and abutting the proposed improvement.

Thereupon on the 3d day of July the council passed an ordinance providing for the improvement in accordance with its aforesaid resolution, the cost to be assessed, fully going into detail in said ordinance concerning the improvement and its kind, referring to the specifications and plans therefor and the assessment of the costs and expenses of it, and providing for the issuing of bonds to anticipate the fund to be raised by the assessment.

By Section 3 of the ordinance the clerk is directed to advertise for bids. This ordinance to take effect after its passage and publication according to law. The ordinance was published July 4, 1901. The notice to contractors inviting bids was published July 4th, 11th, 18th and August 1, 1901. On the 16th day of August, 1901, the contract for the construction of the work was let. On the 16th day of April, 1902, the assessing ordinance was passed and published on the 24th, and duly went into effect after its publication. On the 16th day of April the resolution for the sale of bonds was passed, bids were solicited and the bonds were sold. The work having been finished, the money was paid out. All the steps leading to this final com' pletion and payment thus appears from the evidence. And this action is to enjoin the collection of the assessment levied upon the abutting lots of the respective plaintiffs.

The evidence shows that the council did find and declare the necessity of the improvement, and did provide for the improvement by ordinance, and this upon a petition duly presented which bore the signature of a majority of those whose lots abutted upon the proposed improvement, and that these petitioners assented that the cost of the improvement be assessed on the abutting property.

In its proceedings on this petition, and in behalf of the improvement requested by it, all else being regular, it was the duty of the council and the members of that body to exercise good judgment and ordinary business sense, and to do the things necessary to accomplish the object requested by the petition. The improvement must be a permanent improvement in so far as its character imports durability and permanence, and it must be done in a workmanlike manner and without extravagance, and there must be no abuse of discretion either as to its character or its cost.

It was necessary in order to effectuate and complete this improvement to put in a 15-inch tile as was done here, even though it were not specifically requested in the petition, and not specifically declared necessary in the resolution and not specifically provided for in the ordinance, and if independent and without reference to the roadway, and if the surface of the street were not to be improved, this 15-inch drain or sewer would seem to be a separate improvement, and one which might be made at another time and by separate action of the council under other proceedings of the council relating to sewers; yet these facts would not limit the authority of the council to construct it as a part of this street improvement, if it accomplished the purpose without marked addition of expense for which it was considered to be necessary, namely, draining and making permanent the roadway. That the 15-inch tile serves other purposes as well, and was the means of extending other benefits to other property, and might be put to other uses by the residents along the street, while it at the same time performed the office of a complete method of draining' the roadway and making the whole improvement a good, substantial, workmanlike job, would not seem to require the council to take separate action by separate petition under other sections of the statute to construct it, because it also could be built under such proceedings. The power granted by the Legislature to build the street also granted to the council the power to do the things necessary to accomplish that purpose, even though the council might do some of the things thus done under other laws and by other methods. 34 O. S., 101; 42 O. S., 585.

By the testimony of Mr. Craig, the engineer who prepared the plans and specifications by order of the council and who was the engineer in charge of the improvement, this 15-inch tile as laid and at the depth laid in said street, did effectually accomplish the purpose of draining the street and roadway, and cost no more, as he says, perhaps less than if the said street and roadway had been drained by other methods of drainage resorted to for such purposes. Now if this be true, and there is no evidence to the contrary, the putting down the 15-inch tile as it was laid in said street was good business method, and not an extravagance and abuse of discretion on the part of the council, and hence it must be treated as not a distinct and separate improvement, but as a part and a necessary part of the improvement at bar under the petition presented to the council praying for the improvement; and in this view the question of constructing a substantive and separate improvement in the nature of a sewer, and that the resolution and ordinance each contain two separate and distinct subjects, and provide for two separate and distinct improvements, are eliminated from this controversy.

The petition attacks the bid, the contract and its legality, and the legality of the advertisement requesting that bids of contractors be submitted.

It is claimed that the advertisement for bids notified contractors that the plans and specifications were on file in the office of the city engineer and might there be seen and inspected. It is claimed and conceded that there was not an officer of said village created by law known as the village engineer, and that hence a direction to contractors that the plans were on file at the office of the village engineer was not a notification which would inform builders of the whereabouts of said plans, etc., or when or at what place they could be found and examined by contractors who desired to submit proposals to make the improvement.

A grant of power to do a specific thing carries with it the power to do all things necessary to carry into execution the power granted. It was necessary that the council select and appoint a qualified and skilled person to make plans and specifications of this proposed improvement and to act as engineer' .in charge of the work of construction; this — that the thing which the council was empowered to do might be properly done; and this is applicable as well to other improvements and other work carried on by that body touching said village and the improvements therein. That this was done and properly is evidenced without denial. Mr. Craig had been acting as engineer under appointment by the council for many years; he was well known and had been since 1893 as the person selected by the council to perform the duties of engineer, where work of that sort was to be done. This employment had, it seems, been almost continuous. His office was in the office of the county surveyor, which was always open during business hours. All of these facts were a matter of common knowledge in Wapakoneta and vicinity to a degree that Mr. Craig was known as the city engineer. We are of opinion that under these circumstances the advertisement for bids directing the contractors desiring to see the plans of this improvement to the office of the city engineer was in no wise misleading, but put such in possession of true and full information in that behalf.

It is urged as fatal to the advertisement for bids and all proceedings thereafter that the publication of the notice for sealed proposals was first made on the 4th of July, 1901; that this publication of the ordinance providing for the improvement was made on the 4th of July, 1901, and that the ordinance not going into effect until ten days after said 4th of July, the date of its publication, the advertisement for bids was not published for the requisite time after the ordinance became effective.

We are not of the opinion that this is a vice in the proceedings, or that which followed in consequence of it that will bear injunction of these assessments. There is nothing to indicate substantially that any property was prejudiced by it, or that any bidder was prevented from making and submitting his proposal, or that the notice failed to reach any who intended to bid or that the work might have sold for a less price, or that competition was prevented. It is not a jurisdictional matter, or an act in its nature legislative which the clerk was directed to perform. While all this would not cure such defect, and failure upon the part of the clerk to advertise for bids strictly in compliance with the terms of the statute, which is deemed to be for the protection of the tax-payer and is regarded as peremptory, yet coupled with the fact that the plaintiffs had full notice of the filing of the petition and of the action of the council upon the petition, and that the improvement was about to be made, and that the cost was to be assessed upon abutting property, and were interested and cognizant of each step taken, and had as good reason before work had commenced under the contract and before the contract was let and before expenses had been incurred, as they have since to know, and, for anything to the contrary appearing in evidence, did then know of this defect in the advertisement for bids, as well as they now know it. And further, coupled with the fact that in the face of all, they stood by and allowed the improvement to be made and the money to be expended without objection taken by legal steps.

All these facts, it would seem, present themselves for consideration in an action to enjoin the assessment, when it comes to the application of the sections of the statute which are curative in their nature and are to guard the rights of all parties and prevent violations which might otherwise arise from mistake, ignorance, negligence or irregularities, or improvidence of municipal officers and be attributable to their conduct.

The result in such ease is that, while the assessment may not be and is not conclusive as to amount and is only enforceable to the extent of expense incurred, yet as to the apportioning between properties to be assessed^of this amount and making it chargeable upon abutting property, the ordinance under which the improvement is made, is regarded as conclusive, the ordinance having been passed and the method of assessment having been determined'upon before the bidding and before the contract was made.

It is not claimed that the expense of this improvement was not incurred. There is no criticism of the quality of the improvement or the fairness of the price of the work and material. The objection is that the improvement was made and charged up to this street improvement which the council had no right or power to make under that proceeding, and charge and assess as a part of that street improvement.

So that as we view the case this failure upon the part of the clerk to advertise for bids for the period of four weeks after the ordinance went into force in this action, does not affect the event, and action to restrain the collection of an assessment invoking the principles of equity, the merits of the case presented by the complaining parties must show that he is entitled to substantial relief such in character as is offered by courts of equity.

The evidence clearly shows that, under circumstances, not least of which is that plaintiffs stood by and saw the improvement made and money expended without complaint and without taking legal steps to prevent it. And this, together with the fact that the expense is such as should be assessed against the abutting property, leaves the plaintiffs without that which would move a court of equity in their behalf. It might be different if this action was to restrain the collection of something in the nature of a penalty.

It does not appear from the evidence that the amount charged-to each lot, though completed and apportioned by the foot front, exceeds substantially in any instance the benefits conferred upon the property by the improvement. This being the case, the method of assessment (even if this assessment itself were without the criticism which follows the failure of the clerk to properly advertise for bids) would not invalidate the assessment in the amount which does not exceed the benefit. So that we can not see where the objection, that the assessment is inimical to the Constitution of this state and the Constitution of the United States, would have application here.

The objection as to failure of notice to property owners is not made good in any respect. The evidence shows that full and complete and legal notice was given in each instance when notice was required.

Without prolonging this opinion by going into detail and without amplification in this regard, we find in neither of the five reasons set forth in the petition for reducing the amount chargeable to each lot, cause for relief in that behalf. And, altogether, in our opinion, no ease is made to grant the injunction prayed in the petition.

It does not appear, however, that the improvement as to some of the plaintiffs’ property abutting on the street is properly completed. Notably as to the property of plaintiffs Benjamin Burden, Grant Taylor and Jacob Culp, and perhaps others to a less extent. Surely without denial as to the lots of the plaintiffs I have named, the improvement ends at the east line of the Burden lot, and is so left at the end that the water from the intersecting street can not reach the paved street and so pass off, but is dammed up there by the insufficient grade or approach to the pavement, making an unsightly and unhealthy mudhole. Grant Taylor’s lot drains to a street running along the side of his lot, and intersecting the improved street. The water draining from his lot reaches the side street, and because of the height of the surface of the improved street the water can not flow off to the side street, and so is left to stagnate, and, from the evidence, the same is true of the lot of Jacob Culp, and perhaps of others.

This condition was not intended to result from the improvement, and must be remedied, not only as to the plaintiffs whom I have specifically named, but as to the others, and wherever it exists, if it exists elsewhere. The parties are entitled to have the street so constructed and the intersecting streets so fixed and graded as to overcome the trouble of which they complain. And it seems this may be accomplished without difficulty, and must be so done without further expense to them, as well as those I have named as those I have not named, if conditions demand it. As to Burden, Taylor and Culp, the collection of the amount with which their lots stand charged will be restrained until a showing is made to this court that the defect of which I speak is made right. And as to them the ease is continued until the next term of this court in order that opportunity may be given the defendant to show that it has complied with this condition. The injunction is refused as to the other plaintiffs, • with the admonition, however, to defendant that this court will hold defendant to the obligation to remedy any condition of the character described which may exist as to each and any of said other plaintiffs.

W. E. Detweiler and F. M. Horn, for plaintiffs.

Roy E. Layton, for defendants.

The costs, because of the defect in the advertisement for bids, and the reason which said defect afforded for a possible remedy, are adjudged against the defendant, and the petition as to the plaintiffs other than Burden, Taylor and Culp is dismissed and the injunction dissolved.

Judgment for costs against defendant. Execution is awarded and the ease is remanded for execution.


text:
    THE RIGHT OF FRANCHISE UNDER. THE BRANNQCK LAW.
    [Circuit Court of Franklin County.]
    Robert H. Jeffrey, Mayor, v. The State of Ohio, ex rel James M. Butler, City Solicitor.

    Decided, July 1, 1904.

      Brannoch Law — Not Unconstitutional Because of a Denial to Any of the Right of Franchise — Courts will Presume that a True Construction of the Law will be Adopted.

    The Brannock Law is not rendered invalid by reason of the possibility that certain persons may be disfranchised at an election thereunder by reason of the construction which may be given to Section 2926 of the election law. Courts will presume that the true construction of the statute will be adopted and the elections so conducted as to give every elector an opportunity to register and vote.
    Dustin, J.; Sullivan, J., and Wilson, J., concur.

      Affirming City of Columbus v. Jeffrey, Mayor, et al, 2 N. P.—N. S., 85.

   We concur with the views of the Common Pleas Court of Franklin County as to all the questions raised in the hearing before that court.

James M. Butler, on behalf of the mayor.

Thomas M. Clarke, L. D. Lilley and W. B. Wheeler, for the Brannock Law.

Gumble & Gumble and James Caren, contra.

One new question is presented to this court. It is urged on behalf of the plaintiff in error that the Brannock Law is unconstitutional, because in contravention of Section 1, Article V of the Constitution, which provides that every citizen having the qualifications of an elector shall be “entitled to vote at all elections. ’ ’

In the provision for elections under the Brannock Law, it is stipulated that “in municipal corporations having registration, only registered voters shall be entitled to vote. ’ ’

Now it is claimed that there is no provision in the Brannock Law whereby an elector who should move into the residence district wherein a Brannock Law election is about to be held, and become a resident thereof, after the regular days of registration for such election, could be registered and vote, because there is no provision for his obtaining a transfer from his former residence, the election officers therein not being necessarily in session.

We think this point is not well taken, because Section 2926u of the election law makes full provision for such contingencies.

It is suggested in argument that, while Section 2926v may be so construed as to afford every facility for the registration of removals, the secretary of state and the deputy state supervisors have put another construction upon the same, and will issue orders accordingly, thus depriving a removing elector of the right to vote.

This is denied. But, whatever the fact, this court must presume that the election officials will adopt the true construction of the statute and will so conduct the elections as to give every elector an opportunity to register and vote.

The judgment of the common pleas court granting the writ of mandamus upon the mayor of the city of Columbus as prayed for will therefore be affirmed.


text:
    PUBLIC CONTRACTS NOT AWARDED TO THE LOWEST BIDDERS.
    [Circuit Court of Summit County.]
    City of Akron v. Oscar B. France et al.
    Decided, April Term, 1902.

      Contracts for Public "Worlc, — Bids—Remedy of Lowest Bidder — Where in the Discretion of Public Officials Contract is Awarded to Lowest Responsible Bidder — Lowest Bidder Not Entitled to Damages.

    1. Where bids have been invited under Section 794, directing the proper officials in making contracts for public improvements, to award the contract to the lowest responsible bidder, it is within the discretion of such officials to reject any or all bids or to award the contract to one whose bid is not the lowest in price.
    2. Mandamus will not lie to compel the award of such a contract to the lowest bidder; the remedy is to enjoin the carrying forward of the work, set aside the contract and to refer the matter back to the officials awarding the contract for further action in accordance with the statute.
    3. An action will not lie on the part of the lowest bidder for work thus awarded, for recovery of the amount which said bidder claims would equal his profits had the contract been awarded to him.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
    Heard on error.
   The city of Akron, in June, 1898, had taken the necessary steps for improving a portion of Wooster avenue. Through its proper officials it advertised for bids for doing the work. In response to that advertisement there were two bids filed with the city, the plaintiffs proposing to furnish all the material and to do the work for $19,093.83. MeCourt proposed to do the work for $19,512.21. After these bids were received, the plaintiffs, who were the lowest bidders, ascertained that there was danger of losing the contract, and brought an action in the court of common pleas setting up the proper facts and asked that the city officials be enjoined from awarding this contract to MeCourt and be compelled to enter into a contract with the plaintiffs for the doing of the work. The officials were too quick for the officers serving the papers, and before the papers were served entered into a contract with McConrt accepting his offer.

Thereupon the petition was amended and a supplemental and amended petition filed in which allegations are made that the commissioners of the city fraudulently entered into this contract with MeCourt to defeat the plaintiffs in their rights, and alleging the facts occurring after the first petition was filed. For some reason trial was delayed for some time, and when the case was heard on the issues made, the court found the fact to be that the plaintiffs were the lowest bidders for the doing of this work and should have been awarded the contract. The court also found that the work had been done by MeCourt, that the whole contract was completed, that it had been accepted by the city and paid for, and retained the case for the purpose of assessing damages to the plaintiffs by reason of the plaintiffs having been denied the contract.

The ease was continued, and the plaintiffs filed a second supplemental petition in which they allege that the contract had already been completed by MeCourt, had been accepted by the city and MeCourt paid for it, and there was nothing to be done so far as he was concerned; and asking for damages against the city in the sum of $5,150; $5,000 for the profits that would have been made by the plaintiffs if they had been awarded the contract and allowed to complete it and $150 for some other items. The case then came on for further hearing, issues having been made by answer and reply, and was submitted to the jury for the assessment of damages, the court holding that the court, on the first hearing, had determined the rights of parties.

The precise question here involved has not been, as far as we are aware, adjudicated by the Supreme Court. There are three cases that may have some bearing on the questions here involved: First, the case against the commissioners of Darke county, a mandamus to compel the awarding of a contract for the building of a court house, was sustained by the Supreme Court, but under a statute that required the letting of a contract to the person proposing to build the structure for the lowest price, and the court held that meant a mere matter of mathematics, no discretion lodged with the commissioners, and hence a mandamus would lie to compel the making of the contract with the lowest bidder, or the party proposing to build it for the lowest price.

Again, in State v. Marion Co. (Comrs.), 39 Ohio St., 188. There was a contention whether the contract — the acceptance of the bid — was governed by a statute which provided for the acceptance of the best and lowest bid or whether it was governed by the old statute requiring the contract to be awarded to the person who would do the work for the lowest price, and the court held that the acceptance of the bid was governed by the statute requiring the bid of the person offering to do the work for the lowest price to be accepted, and mandamus was awarded. But in State v. Shelby Co. (Comrs.), 36 Ohio St., 326, a mandamus was refused under these circumstances. Two bids had been made for the furnishing and placing in place the iron structure for a court house. The lowest bid was accepted, but the party failing to come to time, the second bidder brought suit in mandamus to compel the awarding of the contract to him, and it was held under the statute in force at that time that the commissioners might, in their discretion, reject or accept such bid, and that mandamus would not lie in eases where a discretion is lodged in the tribunal who are to accept or reject the bids.

The statute (Section 794, Revised Statutes) under which these bids were to have been accepted by the city is as follows: None but the lowest and best responsible bid shall be accepted, when such bids are for labor and material separately. But the board of commissioners may, at its discretion, reject all bids or accept any bid which may be the lowest aggregate cost.

So, if we hold that it was discretionary with the commissioners to reject all bids, or enter into a contract with the bidder that would do the work for the lowest aggregate price, then a discretion was lodged in the commissioners, and they could either reject all bids or enter into a contract with the lowest bidder.

When this first petition was before the court an injunction could have been granted against the city from awarding or entering into a contract with McCourt, but we are very clear that mandamus would not lie to compel the commissioners to enter into a contract with’the plaintiffs. The only thing that could have been done, if it had been heard upon the original petition, was to grant an injunction against entering into the contract with McCourt, and referring it back to the commissioners to proceed according to the statute and exercise a discretion under the statute required.

When the supplemental and amended petitions were filed, the contract had been awarded to McCourt, and he was entering upon the performance of the contract. The only judgment that could then have been made was to enjoin McCourt from proceeding further with the work, set aside the contract, and refer the matter back to the commissioners to exercise the discretion according to the statute. But after that was done and the supplemental petition was filed, and it appeared that the contract had been completed, no action of the city to enjoin, and no contract to award the plaintiffs, then the only relief was to award the plaintiffs damages if they were entitled to it.

Were they entitled to damages? Upon that exact question there are no adjudications in the state. But we are compelled to hold, as we think, that where there is a discretion in the municipality, or in the commissioners, to reject or enter into the contract in accordance with a bid, that no such right or interest exists in the bidder as to entitle him to maintain an action for damages. It has'not gone far enough. So that as this case stood at the time this judgment was rendered, it is very clear that the plaintiffs were entitled to no judgment for damages or otherwise, and instead of rendering the judgment that was rendered, the petition should have been dismissed.

We therefore reverse the judgment of the court of common pleas, and make the entry as indicated.


text:
    LOOKING AND LISTENING AT RAILWAY CROSSINGS.
    [Circuit Court of Hamilton County.]
    Norfolk & Western Railway Company v. The Great China Tea Company and The P., C., C. & St. L. R. R. Co.
    Decided, May 11, 1904.

      Negligence — At Crossings over Railways — The Rule as to Looking and Listening — Applies where the View is Obstruetel until near the Track — Negligence of Railway Company Immaterial where this Rule is not Observed.

    The rule that a person in full possession of his senses of sight and hearing should exercise them to protect himself and his team from danger when about to drive across a known track of a steam railroad at a street crossing, applies to a condition where the vision is obstructed by a building quite close to the track, and it is negligence on his part which will defeat a recovery for injuries received from a passing train to undertake to drive across without listening and looking along the track at the point from which he could have seen the approaching train. B. & O. R. R. Co. v. McClellan, Admr., 69 O. S., 142, followed.
    Swing, J.; Dustin, J., concurs; no other judge sitting.
   This was an action in the court of common pleas for damages for the killing of two horses owned by the tea company, and also injury to property of the tea company, which resulted from a collision between the horse and wagon of the tea company and the engine of the railway company at a point on the P., C., C. & St. L. Railway Company, at Hazen street in the city of Cincinnati, Ohio. A trial was had in said court, which resulted in a verdict and judgment in favor of the tea company. To this judgment error is presented to this court.

There is very little conflict as to the material -evidence in the case. S. B. White was driving a delivery wagon belonging to the tea company, on the tenth day of December, 1901, between 9 and 10 o’clock a. m., and started to cross the said railway company’s tracks, going via Hazen street, from Eastern avenue to Gladstone avenue in the eastern part of Cincinnati. The approach to the railway company’s tracks on Hazen street was very steep, having a grade of from fifteen to twenty per cent. The street was not a main thoroughfare, being but little used on account of its steep grade. White testifies that he started from Eastern avenue and drove up Hazen street to a point where the front feet of his horses were in the middle of the north track of the railroad, at which point he stopped and at which point he first saw the engine approaching on said north track, about two hundred (200) feet away. He did not stop on his way up Hazen street, but kept constantly listening and looking for approaching trains.

The evidence is conclusive that White could have seen the approaching train 365 feet away at a point eighteen feet south of the south rail of the north track if he had looked, and it is equally certain that he did not look, for he says that he did not see the approaching train until the front feet of his horses were in the center of the north track, and at which time the train was about 200 feet away. If the front feet of the horses were in the center of the north track, they were, according to measurements, twenty-two and one-half feet from the point where the train-could first be seen, and White could not have been more than ten feet back from the front feet of the horses; but say he was twelve and one-half feet back; he was still ten feet nearer the railroad track than the point from which he could have seen the approaching train before he even attempts to look for it. He says he looked and listened, but his own evidence and the undisputed evidence clearly shows that he did not. There is evidence offered by the tea company to the effect that no bell was rung by the railway company. There was also evidence offered by the tea company that the train was running at a very high rate of speed, and these are the acts of negligence which the tea company claims are grounds for. recovery. The jury had a right, we suppose, to believe this evidence, but granted that no bell was rung, certainly the noise of the train was present, and could have been heard by White long before he became aware that the train was approaching. It does not appear that any other noises were present to prevent his hearing the approaching train, and while he says that he listened, there is no way to escape the conclusion that he did not. So it seems certain that he neither looked nor listened at a point where he could have seen and heard the approaching train so as to have avoided the collision.

Hollister & Hollister and W. A. DeCamp, for plaintiff in error.

Moulinier, Bettman & Hunt, Maxwell & Ramsey and John R. Schindel, for defendants in error.

White was absolute master of his movements; there was no impending danger confronting him, and his horses were entirely under his control, and he voluntarily placed himself in the position where the collision occurred; in doing this he was clearly negligent. It matters not whether the railway company did not ring a bell or was running at a higher rate of speed than twenty miles an hour — which is the usual rate of speed of trains at that point — it is clear that the negligence of the tea company was the cause of the accident, and not the negligence of the railway company.

The' evidence does not support the verdict and judgment.

The case, we think, is governed by the decision of our Supreme Court. Law Bull. (December 14, 1903), 958.

Judgment reversed and cause remanded for further trial.


text:
    DESCENT OF REAL PROPERTY.
    [Circuit Court of Cuyahoga County.]
    George C. Ossman et al v. Maria G. Schmitz et al.
    Decided, February 16, 1903.

      Deed — Recital of Valuable Consideration- — Presumption as to — Brothers and Bisters — Presumption as to Pull Blood and Legitimacy.

    1. Title comes^ by purchase and not by gift where the consideration expressed in the deed is a valuable one, and the line of descent can not be changed by showing by parol that the deed was in fact a gift.
    2. The presumption as to brothers and sisters is that they are brothers and sisters of the full blood and legitimate.
    Winch, J.; Marvin, J., and Hale, J., concur.
    Error to the court of common pleas.
   April 3, 1875, Christian Ossman was the owner of certain real estate in the city of Cleveland, which, on said day, he conveyed by warranty deed to one Herman Stuhr. The consideration in the deed was recited to be $10,000. On the same day said Herman Stuhr conveyed' said premises to Christina Ossman, wife of Christian Ossman, by quit-claim deed, in which the consideration was recited to be two dollars. Both deeds were in the ordinary forms, and were duly recorded on the same day. Christina Ossman died intestate and without issue, leaving no husband surviving her, in September, 1896, seized of the premises in question.

Defendants in error and certain cross-petitioners claim title to the property, under the third paragraph of Section 4159, Revised Statutes, as the brothers and sisters of .Christina Ossman of the whole blood and their legal representatives.

Plaintiffs in error at the trial in the court below claimed and offered to prove that the two deeds above referred to, although they recited money considerations, were in fact deeds of gift; that by them it was clearly the intent and purpose of the husband to make a gift to his wife, and that he took this means of presenting her with the property, being advised thereto by counsel; that the wife died intestate and without issue, possessed of this property which came to her from a former husband by deed of gift, and that it therefore descends under Section 4162, Revised Statutes, she leaving no children or their representatives, one-half to the brothers and sisters of the wife (the defendants in error), and one-half to the brothers and sisters of the husband (the plaintiffs in error).

The trial judge excluded evidence tending to show that the deeds referred to were in fact without consideration, although they recited it, and were intended as a gift from the husband to the wife. In this we think there was no error.

“Where the consideration expressed in a deed of conveyance is a valuable one, the title comes by purchase, and it is not competent to show by parol that in fact the title came by deed of gift, and thereby change the line of descent.” Groves v. Groves, 65 Ohio St., 442.

Defendants in error, to prove their descent and that they were the brothers and sisters of Christina Ossman, of the whole blood, and their legal representatives, took certain depositions in Germany, and error is alleged in overruling certain exceptions to these depositions.

Popleton, Billman & Billman, for plaintiffs in error.

Beavis & Johnson and Kline, Carr, Tolles & Goff, for defendants in error.

It appears that written exceptions specifying the grounds of objection were filed on September 20, 1900, and on motion of the defendants were heard and overruled on October 16, 1901, by the common pleas judge sitting in room No. 1. To this ruling defendants excepted, but took no bill of exceptions. What facts were before the court at that time do not appear. It is true, an envelope said to have contained the depositions is attached to the final bill of exceptions, but there is no evidence to show that said envelope was before the judge who ruled on the exceptions. We can not, therefore, say that any error was committed in overruling said exceptions. Shamokin Bank v. Street, 16 Ohio St., 1.

When the case finally came on for trial in March, 1902, defendants again excepted to the depositions, but said exceptions were overruled and properly, we think. The matter was res adjudicata.

Plaintiff in error further claims that the evidence does not show that defendants in error are the legitimate heirs of the full blood of Christina Ossman. The testimony is to the effect that they are brothers and sisters of Christina Ossman and their legal representatives, and in the absence of any proof to the contrary, we think the fair presumption to be that the brothers and sisters were of the full blood and legitimate.

Judgment affirmed.