author: 'MARVIN, J.

text:
    CARRIERS.
    [Cuyahoga (8th) Circuit Court,
    November 28, 1910.]
    Henry, Marvin and Winch, JJ.
    Cohn-Goodman Co. v. Wells Fargo Express Co.
    Limitation as to Value in Express Company Receipt is Valid.
    When a shipper accepts a receipt from an express company for goods delivered to the carrier which contains a condition limiting the liability of the company to $50 unless another value is stated and fails to fix any value to the goods, he is . thereby precluded from recovering more than $50 for the loss of the goods, where the charges for carrying are determined by the value of the goods, and the Interstate Commerce act does not change this rule.,
    [Syllabus approved by the court.]
    Error to common pleas court.

      F. Desberg, for plaintiff in error.

      R. G. Curren and E. A. Couse, for defendant in error.
   'MARVIN, J.

Each party is a corporation, the defendant being a common carrier and the plaintiff a manufacturer of cloaks. The parties here are as they were in the court below.

On August 21, 1907, the plaintiff delivered to the defendant,- at Cleveland, four packages of goods (to be shipped from Cleveland), consigned to M. J. Baum & Co., Oklahoma City, Indian Territory. These goods were of the value of several hundred dollars. Somewhere between Cleveland and Oklahoma City the goods were lost and the plaintiff sues to recover the value of the goods. The goods were delivered by the plaintiff to the defendant’s wagon driver in Cleveland at the manufactory of the plaintiff. The custom of the defendant in its dealings with the plaintiff was, that the defendant left with the plaintiff a form of receipt which had* printed thereon at the top the following words:

“Not Negotiable (Form 418). Read the Conditions of This Receipt.
“Wells Fargo & Co., Express.
“Received from .......... the following articles, which Wells Fargo & Company, a corporation, hereby undertakes to forward to its agency nearest destination, but only upon the following conditions: The liability of Wells Fargo & Co. shall be- at all times only that of a forwarder, and in no event shall it be liable for loss of or damage to said property caused by or resulting from the same being improperly packed, secured or addressed, nor by or from any act of the law, or of a person acting as an officer of the law, whether acting with or without lawful process, warrant or authority; nor for loss of or damage to fragile articles, unless plainly mlarked as such, nor for loss of or damage to articles consisting of or contained in glass; nor shall said company be liable for any loss of or damage to said property in any event or for any cause whatever unless said loss or damage shall be proved to have been caused' by or to have resulted from the fraud or gross negligence of said company or its servants; nor in any event shall said company be held liable beyond the sum of Fifty Dollars, at not exceeding which sum the said property is hereby valued, unless a different value is hereinabove stated; nor in any event shall said company be held liable for any loss of or damage to said property unless written claim be made therefor to said company within mnety' days from this date. In respect to C. O. D. goods, if the amount to be collected from the consignee on delivery is not paid within thirty days from this date, Wells Fargo & Co. may at its option return the same to the consignor, who shall pay the charges for transportation both ways. Wells Fargo & Co. is not required to make free delivery of said property beyond its office at any station where no free delivery service is maintained by said company, nor at any station where such free delivery service is maintained beyond any delivery limits established by said company at the date hereof, unless otherwise herein agreed and an additional compensation paid therefor. All of the stipulations and conditions in this receipt shall extend to, and inure to the benefit of, each and every person or company to whom this company may entrust or deliver the above described property for transportation, storage or delivery.
“The Party Accepting This Receipt Thereby Agrees to its Conditions.”

Under these words were columns; at the top of the left hand of which columns was the word “Date”; in the next column the letters “No.”, and in the next column the word “Articles”; in the next column the word “Value”; in the next the letters “C. O. D.”; in the next the word “Consignee”; in the next the word “Destination,” and in the last of these columns the words “Receipted by.” This form of receipt was kept in the office of the plaintiff, being left there by the defendant. The plaintiff was in the habit of shipping goods very frequently through and with the defendant, and when shipments were so made, would write in, under the column- marked “Date,” the date on which shipment was made; then under the column next following, and under the letters “No.,” the number of articles shipped, and under the word “Articles,” the kind of article to be shipped; and in the column, under the word “Value,” whenever a value was given, this value given by the shipper would be placed; and then under the headings of the several columns, as above indicated, would be written the information required by such headings in said columns.

In the month of August, 1907, a large number of shipments were made by the plaintiff over the line of the defendant, the plaintiff taking a receipt in the form above indicated in each instance. In the column under the words “Receipted by” would be the name written by the particular agent of the express company who took the goods from the shipper; usually this would be the driver of the express wagon. The receipt book which was on the desk of the plaintiff, as already indicated, shows that fourteen shipments had been made by the plaintiff at the hands of the defendant during the month of August, prior to the one in question; the receipts in each ease being entered on the form of receipt which, as already said, was in the keeping of the plaintiff. The shipment for loss of which this suit was brought, was receipted for in this wise: In the column marked “Date” the figures “8-21” appear; under the letters “No.” the figure “4”; under the column. “Articles” “Pkge.”; under the column “Value” and running over into the column “C. O. D.” are the words “Value asked and not given”; under the column indicating the name of the consignee and the destination appears “M. J. Baum” and the words “Oklahoma City, O. T.” and under the column “Receipted by” what seems to be the word “Fost.”

The words “value asked and not given” hereinbefore quoted were plainly stamped upon this form of receipt with a rubber stamp. The signature in the column “Receipted by” was written by a driver of one of the express wagons, whose name is Fostbinder, and was written by him, as his signature on behalf, of the Express Company. The packages were lost without the fault of the express company, and the sole question for consideration here is whether the express company is liable for the value of the goods lost, or only for the sum of $50, which, by the terms of the receipt hereinbefore quoted, is the maximum amount for which the express company agrees to become liable, in case the value of the articles shipped is not given.

It is clear that the plaintiff had full knowledge of all that was contained in this receipt, which it accepted, because, as already said, the blank receipt was on its desk‘and it was in a book of receipts which was left by the defendant in the custody of the plaintiff that it might be ready to be signed by such driver or other agent of the defendant company as should come to the plaintiff from time to time as it should be called, to take goods for shipment. The defendant company charged and received for freight on goods shipped over its lines different prices for different values; that is to say, where the goods were of greater value, the freight express charges were more than when they were of less value. This difference in the rate of prices to be charged was well known to the plaintiff and was advertised by the defendant by notices posted in two public and conspicuous places near its offices and depots in the city of Cleveland, Ohio, and defendant filed with the Interstate Commerce Commission schedules showing all its rates, fares and charges for the transportation of freight between different points on its route. The defendant had no knowledge of the value of the goods contained in this shipment of four packages. The charge actually made by the defendant for this shipment was the lawful and proper charge for a shipment from Cleveland to Oklahoma City, of a package worth not more than $50. Therefore, as before stated, the sole question in the case here is, whether this contract, as expressed in the form of receipt already quoted, lawfully limits the amount for which the defendant is liable, where the goods are lost without its fault. |

The question is raised in this way: At the close of all the evidence, which consisted chiefly and largely of an agreed statement of facts, each party made a motion to the court to direct a verdict. The motion of the plaintiff was that a verdict be directed for $801, which was the value of the goods lost, with interest; whereas, the motion of the defendant was that the court direct a verdict for the plaintiff in the sum of $50, with interest. Both parties thus submitted to the court the question of law raised, for there was no question as to the facts. The court granted the motion of the defendant and directed a verdict for $50, with interest.

It is provided by the act of congress known as the Interstate Commerce Act:

‘ ‘ That any common carrier, railroad or transportation company receiving property for transportation from a point im one state to a point in another state shall issue a receipt or bill of lading therefor, and shall be liable' to the lawful holder thereof for any loss, damage or injury to such property caused, by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose: line or lines such property may pass, and no contract, receipt,, rule or regulation shall exempt such common carrier, railroad,, or transportation company from the liability hereby imposed.”'

Under this statute, it is insisted, that the defendant could not be relieved from payment of the full value of the goods. This question was before the appellate term of the Supreme Court of New York in the ease of Schutte v. Weir, 111 N. Y. Supp. 240, and it was there held that the contract, as to the limitation of liability to $50 was invalid, as being in violation, of the statute, and therefore a recovery could not be limited by reason of the contract.

However, in the case of Greenwald v. Barrett, 92 N. E. Rep. 218, the court of appeals of New York held, that the statute under consideration does not abrogate the right of carriers to regulate their charges for carriage by the value of the goods, or to agree with the shipper on the valuation of the property, and a contract limiting the carrier’s liability to a. specific sum, in consideration of the rate charged, regulated by the value of the goods; is not invalid.

In this latter case the court, in its opinion, uses this language :

“The language of the enactment does not disclose any intent to abrogate the right of common carriers to regulate their charges for carriage by the value of the goods, or to agree with the shipper upon a valuation of the property carried.”

And, in support of the position taken, the court called attention to the case of Travis v. Wells, Fargo & Co. 74 Atl. Rep. 444 (N. J.), where this language was used, in reference to this same statute:

‘ ‘ The statute means that instead of a common carrier being liable as at common law for any loss caused by itself, it shall not only be liable for such loss, but for any loss caused by a connecting carrier to which it has delivered its goods. There was no intention to impose upon the receiving carrier any additional liability for goods lost by it, and that the loss under the .'statute, as before, is the loss of goods of such value as the car-rier has bargained to carry, and is, under his contract, to be paid for carrying. It was not intended to abrogate the right to .limit liabilities for loss in accordance with the amount paid for carriage. ’ ’

In the case of Bernard v. Express Co. 91 N. E. Rep. 325 (Mass.), it is said by the Supreme Judicial Court of Massachusetts, the chief justice speaking of the $50 valuation clause in the express company’s receipt, says:

“It is a contract as to what the property is in reference to its value. The purpose of it is not to change the nature of the undertaking of the common carrier or limit his obligation in the care and management of that which is intrusted to him. It is to describe and define the subject-matter of the contract .so far as the parties care to define it for the purpose of showing of what value that is which comes into\the carrier’s possession and for which he must account in the performance of his duty as a carrier.”

The theory of these cases is that the statute was designed to prevent the carrier from being relieved from responsibility .after the goods had passed into the hands of a connecting carrier, but that it was not intended to impose upon the initial carrier a liability greater than the value of the goods as fixed in the contract of shipment, where the charge for carrying was rated according to the value of the goods.

Entertaining these views, we reach the conclusion that the court was right in directing a verdict for $50 with interest, and mo more, and the judgment is affirmed.

Henry and Winch, JJ., concur.


source: Caselaw Access Project

author: HURIN, P. J.

license: Public Domain

text:
    MUNICIPAL CORPORATIONS — INTERURBAN RAILWAYS.
    [Putnam (3rd) Circuit Court,
    November Term, 1910.]
    Hurin, Donnelly and Kinder, JJ.

      Ottawa (Vil.) v. Ohio Elec. Ry.
    Inter-toban Railways Required to Light Street Crossings.
    Interurban railways, by analogy of statutes regulating, the-nature of business conducted, and mode of operation, now belong to tbe genus railroads, rather than that of street railways; hence, interurban railways are deemed railroads within the-meaning of Gen. Code 3762 and as such may be required by municipal ordinance to light street crossings. Followed, State v. Cleveland, 83 Ohio St. 61.
    [Syllabus approved by the court.]
    Error.

      Bailey & Leasure, for plaintiff.

      Bisser & Smith, for defendant.

      Reversed, Ohio Elec. Ry. v. Ottawa, 85 O. S. 000; 57 Bull 37.

   HURIN, P. J.

In this action the Village of Ottawa sued to recover from the Ohio Electric Ry. Company the sum of $364 for lighting street crossings.

The court of common pleas sustained a demurrer to the petition as not stating a cause of action.

The plaintiff not desiring to plead further brings the case into this court on error.

The Ohio Electric Ry. Company is an interurban electric railway company operating its cars by electricity on tracks through the village of Ottawa.

By Gen. Code 3762 it is provided that “When deemed necessary by the council of a municipality to have a * * * railway, located in whole or in part in such corporation, * * * or any portion thereof, lighted, the council shall pass an ordinance for that purpose,” etc.

But it is claimed that this does not apply to street railways and that interurban railways are street railways and, hence, it does not apply to them.

This contention is based upon a very indefinite exception as to street railways contained in the old R. S. 3309a and which apparently has been repealed and is not now found in the corresponding sections of the General Code 8801-2-3 & 4.

It is also claimed that at the time of the enactment of the original sections, R. S. 2494 (now Gen. Code 3762 et seq.), interurban railroads did not exist and hence the statutes relating to the lighting of steam railways could not apply to interurban roads.

A third claim is made that by Gen. Code 9122 “such companies shall be subject to the regulations provided for street railways and have all the powers, insofar as they are applicable, that other street railway companies possess,” and that being thus classed as street railways, they cannot be also classed with railroads, i. e., steam railroads.

With reference to this last claim it may be said that it is very doubtful whether this section applies, or was intended to apply, specifically to interurban railways. It is also evident that the provision that “such companies shall be subject to the regulations provided for street railways” would not of itself prevent their being subject to other regulations which might include such regulations as usually apply to steam railways.

But the term “such companies” as used in Gen. Code 9122 apparently refers to the companies mentioned in Gen. Code 9115 and Gen. Code 9117 which relate solely and specifically to street railways, Gen. Code 9115 referring exclusively to street railways within a municipality and Gen. Code 9117 extending to such street railways, the right to extend their operations outside cf such municipalities, and neither Gen. Code 9115 nor 9117 nor 9122, which refers only to such street railways, can have of themselves any necessary application to interurban railways.

An inspection of the statutes relating to electric railways shows at once that many of them were enacted at a time when interurban lines were unthought of.

The new General Code makes a distinction between street railways and interurban railways in Gen. Code 3778-3780 in-■elusive, these statutes having been passed since the interurban traffic became an important one.

But, in our opinion, the statutes which are relied on as proving that interurban lines must be invariably' treated as street car lines do not justify such an assumption nor do the decisions of courts bear out this contention.

It is undoubtedly true that in certain respects interurban roads do bear a close resemblance to city street railways.

As a rule, though by no means an invariable rule, their ears run singly, not in trains composed of numerous cars.

They are now usually propelled by electricity which happens just now to be the favorite motive power in propelling street cars.

They usually, in entering and passing through cities and villages, traverse the streets as do street ears — while steam lines do not universally do so, though they often do so.

But in many other respects the interurban lines more closely resemble steam lines.

Their traffic is over long distances and from city to city, not as street cars, confined to one city or village, or its immediate vicinity.

Their cars travel at a rate of speed rivaling and sometimes exceeding even the highest speed attained by steam lines and in fact in some portions of the country the steam lines are substituting electricity for steam as a propelling power, thereby practically becoming electric interurban lines. (They are ■specifically authorized to do this by Gen. Code 8758.)

Then, too, it is now a common practice for interurban railways to run baggage ears and freight ears and frequently to couple two or more of such ears together, just like the trains on the steam lines. They have special cars for carrying live stock and for other heavy freight, for express traffic and for ■other purposes, no longer confining their business to the transfer of human passengers; and frequently these cars are combined into trains, a practice which is daily becoming more common, indicating a gradual but distinct change in the character of the interurban business.

The high rate of speed attained by electric interurban cars and the increasingly heavy cars now universally in use give to such cars a momentum which makes it increasingly difficult to bring them to a stop within a short distance.

In all of these respects the heavy interurban lines are more nearly year by year approximating the character of the steam lines, and any judicial classification which had its origin in conditions prevailing fifteen or even ten years ago must now be viewed with caution because of the complete change of conditions.

The courts are bound-to recognize this process of development, and they are doing so. In our own state this is distinctly apparent.

In the ease of Massillon Bridge Co. v. Iron Co. 59 Ohio St. 179 [52 N. E. Rep. 192], our Supreme Court field that the statutes of this state relating to railroads are separate and distinct from those relating to street railroads and the word “railroad” in Section 3208 and in Section 1 of act 86 O. L. 120 (R. S. 3231-1; Gen. Code 8376) does not include street railroads. (These statutes relate to laborers’ liens.)

And on page 186 Judge Burket says that “the statutes as to railroads do not apply to street railroads unless made to do so by clear inference. ’ ’

While that decision related to a road that was called a street railroad, it in fact was an interurban line between Tiffin and Fostoria. But at that time the interurban traffic was in its infancy and the line in question at that time and even at the present time had all of the characteristics of a street railway and few of those of the modern interurban lines except the one fact of running between two different towns.

The later case of Greene v. Railway, 62 Ohio St. 67 [56 N. E. Rep. 642], holds that R. S. 6478, now Gen. Code 10239 (which related to suits before a justice against a railroad company), had no reference to a street railroad company but that case had no reference to an interurban railroad company and is not in point.

The case of Cincinnati, L. & A. Elec. St. Ry. v. Lohe, 68 Ohio St. 101 [67 N. E. Rep. 161; 67 L. R. A. 637], distinctly holds, that “An interurban electric railroad is classed as a street railroad by the statutes of this state. ’ ’

But in the opinion in that case (which was a ease for damages for alleged negligence resulting in the death of a passenger who was riding in the vestibule of the car and had refused to go inside) Judge Burket clearly bases the statement of the syllabus upon the separation by the phrasing in R. S. 2780-17 (Gen. Code 5486-5491) of the street, suburban and interurban railroads from other railroads. ' •

Yet on page 110 of the opinion he with equal clearness recognizes the distinction between street railways and interurban railways. He says,

“It seems reasonably clear that while operating the cars of an interurban railroad within a municipality, the regulations and powers of a street railroad company are applicable, but when it comes to running cars of such railroads in the open country, upon a track substantially the same as the track of a steam railroad, and at a high rate of speed, it would seem that the same rales as to negligence and contributory negligence, should prevail, as are applicable to steam railroads; and that a passenger standing upon the platform of an interurban car in the open country, should be held to the same rules as if he were standing on the platform of a steam car. The danger is the same in either case, and where there in no difference in danger, the,re should be no difference in the care required, nor in the rights and liabilities flowing from the neglect to observe the proper care. ’ ’

Here we have a distinct recognition by the Supreme Court of the growing approximation of interurban railway traffic to steam railway traffic, of the altered conditions of travel and of the fact that in the country, at least, an interurban railroad is practically to be classed as a steam railroad notwithstanding the apparent classification of the statutes.

The case of Ross Co. (Comrs.) v. Traction Co. 75 Ohio St. 548 [80 N. E. Rep. 176], might be viewed as an authority against this proposition. That was an action to enjoin the defendant from constructing its road across a highway at grade.

It ivas there held that an interurban railroad for the operation of cars by electricity and by the tractive friction resulting from their own weight is not within the act of April 25, 1904, (97 O. L. 465) to provide how railroad and highway crossings may be constructed.

From the foregoing decisions it appears that while the Supreme Court still adheres to the general rule that the word railroad does not, ex vi termini, include street railroads or even interurban railroads, yet the distinction between street railroads and interurban railroads and the approximation in character of the interurban roads to the steam railroads is now well recognized, and as Judge Shauek, C. J., says, on page 559, “obviously the word ‘railroad’ needs not to be used in a strained or unnatural sense to include an interurban road operated by electricity. ’ ’

It appears also from the case of Cincinnati, L. & A. Elec. St. Ry. v. Lohe, supra, p. 110, to which I have referred, that where the conditions are identical, the courts will apply identical rules, in that case it was the rule of negligence but inferentially other rules as well should be applied.

And this was done in that ease on the plainly stated ground that “the danger is the same in either case, and where there is no difference in danger, there should bo no difference in the care required, nor in the rights and liabilities flowing from the neglect to observe the proper care.”

Possibly this was obiter dicta, but it is good sense, too.

Now apply this statement to the case at bar.

An interurban railroad car passing through a village and crossing its streets with the speed and with nearly the momemtum of a steam railroad train is a source of as much danger to the traffic on that street as a train on a steam road would be,— possibly a greater danger because of there being less noise accompanying it — less warning to passengers on the street. Why should there be any difference in the care required in crossing those streets ?

The provision for lighting the crossing is a provision for the safety of the public. The conditions being practically the same, whether the railroad is a steam railroad or an interurban railroad, the rule should be the same.

The old fashioned analogy to the street ear is now decidedly a strained analogy and should in all reason be abandoned.

It should in fairness be said that the statutes, Gen. Code 5415, et seq., still make a distinction between “railroads” and “interurban railroads” as to taxation; but the distinction relates only to the time of making and reporting the assessments for taxation. In other respects the same statutes relate to both kinds of roads, showing that they in fact are of the same class.

But perhaps the controlling decision in this case is the recent one by the Supreme Court in the case of State v. Cleveland, 83 Ohio St. 61.

It was there held that “A statute may include by inference a case not originally contemplated when it deals with a genus within which a new species is brought by a subsequent statute. Thus a statute making it unlawful to willfully throw a stone at a railroad car includes an interurban or traction railway car, although such cars were not known or in use at the time the statute was enacted.”

This decision effectually answers the remaining objection raised by the defendant in the case at bar and in its essence supports all that we have said regarding the applicability of the statute now in question to interurban lines.

But an examination of recent decisions in other states throws additional light- on this question. Elsewhere a like evolution of the law is keeping pace with the developments of interurban traffic. As this traffic outgrows its infantile conditions and assumes ever increasing importance, it is held to ever increasing obligations.

In an Alabama case, Birmingham Mineral Ry. v. Jacobs, 92 Ala. 187 [9 So. Rep. 320; 12 L. R. A. 830], a case involving the standing of a “dummy line,” the court said:

“A railroad organized under this act of the legislature, running beyond the corporate limits of any city or town and through counties, is not, and necessarily cannot be, a street railway, within the meaning of the constitution and the provisions of the code in regard to street railways.”

But that decision recognizes such roads as street railways while within thp cities.

This case was affirmed in Louisville & N. Ry. v. Anchors, 114 Ala. 492 [22 So. Rep. 279; 62 Am. St. Rep. 116], where-the question was argued at length and the court in discussing it said:

“Public necessities, even within city limits, demand increased facilities for travel over the horse-ear, and many decisions of courts applicable to street railways operated by horses, could not be applied without manifest injustice to trains operated by steam or electricity.”

These statements, while not relied on as authority because of the difference in the facts from those in the case at bar, indicate the modern tendency of courts with reference to-the status of interurban lines.

The question has most frequently arisen as incidental to the question whether railroads on city streets constitute an additional burden for which adjacent property owners may recover damages. Street railroads, being for the transportation óf passengers solely, are held to be an aid. to the purpose-for which streets are designed and are not considered an additional burden, while “commercial” roads are.

In the case of Chicago & N. W. Ry. v. Railway, 95 Wis. 561 [70 N. W. Rep. 678; 37 L. R. A. 856; 60 Am. St. Rep. 137], the court held that “An electric railway in a village street, which forms part of a connecting line between cities for transporting merchandise, personal baggage, mail, and express matter, as well as passengers, constitutes an additional servitude or burden upon the lands of abutting owners for which they are entitled to compensation, ” and, in the opinion in that case such roads are sharply distinguished from street railroads because of the difference in their purposes and methods.

To the same effect is Abbott v. Light, Heat & Traction Co. 126 Wis. 634 [106 N. W. Rep. 523; 4 L. R. A. (N. S.) 202].

The case of Diebold v. Traction Co. 117 Ky. 146 [77 S. W. Rep. 674; 63 L. R. A. 637; 111 Am. St. Rep. 230], after a thorough discussion, holds that an electric railway, to be operated between two cities in different states and carry passengers and freight, is a trunk railway, a commercial railway, and not a' street railway. It is there said:

“The term ‘street railway,’ as used in Sec. 163 of the state constitution, means, and can only mean, applying to it a common-sense interpretation, those street railroads which, before the introduction of electricity, used mules and horses as motive power for drawing the street cars over its street car tracks, for the use and convenience of the local public in a municipality, those street ears that run along the streets of a city, picking up passengers here and there, and putting them off at street crossings, and at the termini of the street car companies’ tracks within the municipality. They were created and organized and operated, and such was their character, as defined in their charters, strictly and exclusively for the local convenience of those persons or passengers whose pleasure or business prompted them to go from point to point within the city. They were never organized or intended for commercial purposes between different cities within a state, or between different cities in different states. In the case of Louisville & P. Ry. v. Railway, 2 Duvall 175, Judge Eobertson, * * * said: ‘A railroad is for the use of the universal public in. the transportation of all persons, -baggage and other freight. A street railway is dedicated to the more limited use of the local public for the more transient transportation of persons only, and within the limits of the city. In the technical sense, therefore, a street railway is not a railroad. And we presume that, in this contradistinctive sense, the term ‘railroad’ was used in the appellant’s charter, as amended in 1860. A railroad and a street railroad ar,e, in both their technical and popular import, as distinct and different as a road and a street, or as a bridge and a railroad bridge.”

So, in the case of Zehren v. Railway & Light Co. 99 Wis. 83 [74 N. W. Rep. 538; 41 L. R. A. 575; 67 Am. St. Rep. 844], the same rule was adhered to and, in the course of the opinion, the court say:

“The street railway in its inception is a purely urban institution. It is intended to facilitate travel in and about the city, from one part of the municipality to another, and thus relieve the sidewalks of foot passengers and the roadway of vehicles. It is thus an aid to the exercise of the easement of passage; strictly a city convenience, for use in the city, by people living or stopping therein, and fully under the control of municipal authorities, who have been endowed with ample-power for that purpose.” And after speaking of the introduction of new motive power and the enlargement of street cars, and the extension of distances for their operation, even connecting separated cities and villages, the court said: “Thus, the urban railway has developed into the interurban railway, and threatens soon to develop into the interstate railway. The small car which took up passengers at one corner, and dropped them at another, has become a large coach, approximating th,e ordinary railway coach in size, and has become a part, perhaps, of a train which sweeps across the country from one city to another, bearing its load of passengers, ticketed through, with an occasional local passenger picked up on the highway. The purely city purpose which the urban railway subserved has developed into or been supplanted by an entirely different purpose, namely, the transportation of passengers from • city to city over long stretches of intervening country. * * * It is built and operated mainly to obtain the through travel from city to city, and only incidentally to take up a passenger in the country town. This through travel is unquestionably com-posed of people who otherwise would travel on the ordinary steam railroad, and* would not use the highway at all. ’ ’

See also March v. Light, Heat & Traction Co. 134 Wis. 384 [114 N. W. Rep. 804].

While none of these cases involve the exact question presented by the case at bar, they all recognize the essential principle that street railways and interurban railways are fundamentally different in purpose and character, that the street, railway was designed for local intramural transit solely, an aid to the local use of streets; that the interurban railway is a-commercial railway, designed for the transportation of persons, baggage, express matter, mail, freight, etc., over long distances and from city to city, a form of traffic which has no natural relation to the streets of a city or village through which the road passes and which constitutes an additional burden upon their use..

These cases all support the conclusion that for all practical purposes interurban railroads are railroads of the same class as steam railroads and, since they impose an additional burden upon the streets in which they have no natural or inherent rights, they are under similar obligations to those sustained by steam railroads.

One of these obligations, in our opinion, is that of contributing to the lighting'of the streets which they cross, since such lighting is made more vitally necessary by the increased danger to pedestrians and occupants of vehicles thereon by reason of the us.e of such streets by the cars of such railroads.

Holding these views, the judgment of the court of common pleas will be reversed.

Donnelly and Kinder, JJ., concur.


author: FILLIUS, J.

text:
    CONTRACTS — IN JUNCTION — STATUTES.
    [Cuyahoga (8th) Circuit Court,
    October 28, 1910.]
    Henry, Fillius and Winch, JJ.
    (Judge Fillius of the seventh circuit sitting by designation in place of Judge Marvin.)
    State ex rel. Scobie v. Edson A. Cass et al.
    1. Plans of Courthouse Building Commission are A Proceeding Within Meaning of Gen. Code 26.
    A courthouse building commission having been appointed and the building partially completed pursuant to act 98 O. L. 53 (Gen. Code 2333-2338), the plans made for its completion is a proceeding within the meaning of Gen. Code 26 and are not affected by a repeal or amendment of the statute under which such plans were made. Hence the words “shall be governed by the provisions of this chapter relating to the erection of public buildings in the county” in Gen. Code 2338, being added in codification does restrict the powers of the “commission” under the original act.
    2. Statutes Requiring Competitive Bidding do not Apply to NonCompetitive Artistic Work.
    If the contemplated interior decorations of a new courthouse are of such an artistic nature that they are noncompetitive, the statutes requiring contracts for public work to be let at competitive bidding do not apply.
    3. Expenditure of Money by Contractor on Illegal Public Contract Does not Estop Taxpayer’s Injunction.
    If a contract to do certain work for a county is illegal, the fact that the contractor has expended a large sum of money in the partial execution of the agreement does not estop a taxpayer from enjoining the further execution of the contract, or the payment thereon of the public funds.
    4. Taxpayer Enjoining Contract Promptly on Prosecutor’s Refusal, not Guílty of Laches.
    A taxpayer of a county, immediately upon refusal of the prosecuting attorney to do so, instituting suit to enjoin illegal expenditure of public money, pursuant to Gen. Code 2922, having within a few days of the execution of the ’contract complained of served notice upon the prosecuting attorney to bring such suit as provided by Gen. Code 2921, is not guilty of laches.
    Appeal from common pleas court.

      Smart, Marvin & Ford, for plaintiff.

      J. A. Cline, Pros. Atty., W. D. Meals, Asst. Pros. Atty., Hoyt, Dustin & Kelley, for defendants.
   FILLIUS, J.

This case comes into this court .on appeal from a judgment rendered in favor of the plaintiff by the court of common pleas of this county.

The plaintiff, a taxpayer of the county^ brings this suit to enjoin the defendants, constituting the building commission of Cuyahoga county, and as well the auditor and treasurer respectively of the county, and William F. Behrens, from decorating the courthouse as proposed by a contract made with Behrens, alleging that the building commission is constructing a courthouse in Cuyahoga county and that it has entire charge thereof by virtue of authority vested in it by law, including the painting and decorating of the interior thereof and the letting of the contract therefor; that the commission has entered into a contract with the defendant, Behrens, for doing the painting and decorating for the agreed sum of $90,000; that the contract is illegal and without authority of law, because the commission did not cause full and accurate plans of the painting thus contracted for to be made, nor did it submit the work for such painting to competitive bidding, but wholly failed to give notice thereof by advertising, as required by law, for the lowest and best bid therefor, and that no invitation whatever for bids for said work was given by the commission; that the contract was made with Behrens without giving anybody an opportunity to examine plans and specifications therefor to bid on the work; that the auditor of said county will issue vouchers to the treasurer of the county for the work to be done under said contract, and that the treasurer will pay such vouchers, and that the defendant, Behrens, is about to proceed to carry out said contract, and he prays that the defendants, and each of them, be restrained and enjoined from carrying out or completing the contract for said painting.

To this petition the defendants, composing the building commission, and the auditor and treasurer of Cuyahoga county, jointly answer, admitting that the building commission is engaged in the construction of the courthouse and that it has entire charge of the construction thereof and the right to ,determine all questions connected therewith, including the interior painting thereof. They admit the execution of the contract with the defendant, Behrens, to paint and decorate the interior of the courthouse in accordance with plans and specifications adopted by the commission, which work is to be done to the satisfaction of the commission and its architect, and that by the terms of the contract the commission agrees to pay Behrens $90,000 therefor; that the work to be done and the services to be rendered by Behrens, under said contract, are of a personal character, involving and requiring an extensive knowledge of decorative art, including the mixing, blending and harmonizing of colors, and they admit that if not restrained the commission will go forward in the execution of this contract, and they deny that the contract is illegal.

The defendant, Behrens, files a separate answer, and after admitting the principal averments of the petition, he in effect denies that there is any illegality in the execution of the contract, and denies thg.t the commission was wanting in power to make the same. He further alleges that the nature and character of the work is such as to demand a high order of artistic skill and taste to paint and decorate the walls of the courthouse, as required by the terms of his contract, and that the services required of him are in their nature of that personal, skillful and artistic quality' as to make them noncompetitive in character.

Thus are the issues presented.

The facts, as established by the testimony offered upon the •trial of the case, are substantially as follows:

The defendants, Fischer, Eirick and Yail, the county commissioners of this county, together with the defendants, Cass, Higley, Osborn and Smith, appointed by the court of common pleas to act with said board of county commissioners, constitute a building commission, pursuant to an act of the legislature passed in 1904, to build the courthouse. Pursuant to the statute authorizing its creation, the commission employed architects, superintendents and others; procured plans, drawings and specifications; invited bids thereon for the construction of the courthouse, and entered actively upon the work of constructing the courthouse. For reasons apparently satisfactory to the commission, but not appearing in this record, in the original letting of contracts for the construction of the courthouse, bids were not invited, nor contracts made, for painting and decorating the interior walls and ceilings thereof. The building itself about the time of the execution of the contract complained of was substantially completed. The only work left to be done was the completion of some parts of the interior finish of the building and the painting and decoration of the walls, and the supplying of the mural paintings intended for varioua rooms in the building.

The building, to cost upwards of two and a half million dollars, is of magnificent proportions, and artistic design and finish. Built of granite, of the style of the Italian Renaissance, located upon the bluff adjacent to the shore of the lake, it is. designed not alone to be an appropriate place for the administration of justice, but a monument to the genius and modem artistic development of the city and county which it adorns, and as well to be one of a group of buildings in process of erection and to be erected in the city of Cleveland and county of Cuyahoga, so placed and constructed about a mall that each shall be in harmony with the others, and together constitute an expression of the highest development of the art of architecture and civic usefulness in this country.

The commission proceeding to complete this structure, thus conceived and designed, employed Charles F. Schweinfurth, a gentleman of this city, eminent as an architect and as a man possessing a fine artistic sense, not only in the designing of buildings but in their interior decoration, to prepare plans and specifications for its interior decoration, in keeping in design and artistic finish with the building itself. Without attempting to go into detail, the plans and specifications, thus prepared, required the interior decoration to be like the building itself of the period of the Italian Renaissance, particularly giving expression to the peculiar quality, style and effect of that period, which found its highest development in one 'of the greatest artists of that period. The commission adopted the views, plans and specifications of Mr. Sehweinfurth, and in- addition, determined to place upon the interior walls of the building a number of mural paintings to be executed by one or more of the present day masters of mural art, and it was required that the decorating to be done by Mr. Behrens, under his contract, should be in harmony with these mural paintings, so that the whole should have one harmonious, artistic effect, suggestive of the majesty and dignity of the law and its administration. To do the interior decorating thus determined upon and in this manner, the commission found that it would require a highly developed professional and artistic skill, involving taste, feeling, harmony, idealism and an aesthetic sense that in fact made the work noncompetitive in character. The commission, therefore, did not advertise for bids for the doing of this work, but did make inquiry as to prices therefor, through its- representative, Mr. Sehweinfurth. Accordingly, acting upon the belief that it had the power to enter into a contract of this character without submitting the work to competitive bidding, it entered into the contract in question with Mr. Behrens to do the work and furnish the material therefor, upon plans and specifications, as ■definite as the nature of the work would permit, though leaving much ultimately to the judgment of Mr. Sehweinfurth.

The question therefore now for determination is, did the commission in thus making this contract exceed the authority conferred upon it by the statute creating it, and any amendment thereof ?

Before undertaking to answer this question, it will be well to dispose of two defenses interposed upon the trial: First, that the plaintiff has been guilty of such laches that a court of equity ought not to interfere in his behalf; and, second, that he is estopped to claim the interposition of this court by reason of the fact that he delayed bringing his action so long that the defendant Behrens has, in good faith, and relying upon the legality of Ms contract, made expenditures and incurred obligations on account thereof, amounting to a very large sum of money, to wit', more than $10,000.

So far as the question of laches is concerned, it is difficult to see how the plaintiff could reasonably have been more diligent. While it is true the newspapers of the city about August 3, published the fact that the commission had substantially contracted with Mr. Behrens to do this work, yet the contract itself and the bond to be executed concurrent with it, were not executed until September 14, and upon that date, or within a. day or two thereafter, the plaintiff made application to counsel and counsel immediately served notice upon the prosecuting attorney of the county to bring this action, and he, after the lapse of two or three days, refused to do so, and the very day that his refusal was communicated to plaintiff’s counsel, this suit was begun. It would appear, therefore, that the plaintiff was. not guilty of laches. The court would hardly be warranted, in. a suit begun on behalf of the taxpayers of the county, to protect their interests against the illegal expenditure of public; funds, in finding that the plaintiff was guilty of laches, unless such clearly appeared to be the case.

Neither is the plaintiff estopped to prosecute tMs action. He claims that the defendants should be enjoined from carrying-out this contract because it is illegal, because the defendants are utterly without authority to execute it, or having executed it, to carry it out. If the contract be in fact illegal and without, authority of law, then the plaintiff is not estopped, no matter how much money the defendants or any of them may have-expended in its partial execution, from enjoining the further execution of the contract, or the payment thereon of any of the public funds.

Whether, then, the commission had authority to execute the contract in question, depends upon what effect is to be given to the statute and any amendment thereof, under wMcb. the commission is acting. This statute is general in its nature and is entitled “An act to provide for a commission for building courthouses,” and seems to have been an entirely independ-ent act upon that subject. The commission was empowered by the terms of the act with the broadest discretion to determine all questions connected with the building of a courthouse, and was granted, in the language of the Supreme Court, “every phase of power and duty which is conferred upon the county commissioners and more.” The act expressly provided: “said building commission shall, after adopting plans, specifications and estimates, invite bids and award contracts for said courthouse, and for furnishing heat, light, ventilating and for sewerage of the same, and determine all questions therewith, "until said courthouse shall be completed and accepted by said !building commission.”

In view of this express power thus conferred upon the commission, and of the decision of the Supreme Court in the case of Mackenzie v. State, 76 Ohio St. 369 [81 N. E. Rep. 638], there is little doubt that the commission was well within the limitations of its authority in making this contract. But confusion has arisen from the fact that the codifying commission in codifying the statutes, embraced in the General Code, the statute creating the building commission with other sections of the statutes relating to the authority of county commissioners to erect 'county buildings, under chapter 1, title 10, relating to public buildings, covering sections from No. 2333 to 2366, inclusive, and from the further fact that the codifying commission divided Sec. 1 of the original act creating the building commission into several sections, and incorporated that part of the statute .-above quoted in Gen. Code 2338, making an addition thereto, ;so that the whole of Gen. Code 2338 now reads as follows:

’“After adopting plans, specifications and estimates, the •commission shall invite bids and award contracts for the building and for furnishing, heating, lighting and ventilating it, ;and for the sewerage thereof. Until the building is completed and accepted, by the building commission, it may determine all questions connected therewith, and shall be governed by the provisions of this chapter relating to the erection of public .buildings of the county.”

Plaintiff now claims that because the original act creating the building commission is now incorporated in the General' Code under one chapter relating to the construction of county-buildings, and especially because the original act appears to have been amended, as shown by Gen. Code 2338, by adding the words “and shall be governed by the provisions of this chapter relating to the erection of public buildings of the county,” the power of the building commission has thereby been limited and restricted, and that it no longer has any discretion -with respect to letting contracts, but every contract of whatever kind or nature must be advertised upon plans and specifications for public letting and let to the lowest and best bidder, and that if the decoration of the interior of the courthouse proposed to be done by the commission, pursuant to the contract made with Behrens, be of a character that can not be submitted to competitive bidding, then the commission and the county which it represents must forego that character of work and must adopt a kind and class of work which can be submitted to such bidding.

If this conclusion must necessarily follow from the addition of the words to the statute above referred to, and noY£ appearing in Gen. Code 2338 for the first time, then, of course, there is nothing for this court to do but to allow the prayer of the petition. We, however, do not think the conclusion contended for by the plaintiff, from the change in the statute, necessarily follows. The commission came into existence for the purpose of building the courthouse. Preliminary to the appointment of four members of the commission by the court of common pleas, the commissioners of the county had, under the act, determined to build a courthouse; had submitted to the electors of the county the question of issuing bonds for that purpose, which had been determined affirmatively by them, and then it was that the building commission was organized, pursuant to the terms of the statute, and the members appointed thereto by the court were to serve until the courthouse, as contemplated in the act, was completed. The commission, thus created, had but one thing to do, to wit, to build and complete the courthouse. The money was provided by the issuing of bonds for that purpose. The members of the commission appointed by the court took an oath and gave bond for the faithful and honest discharge of their duty. In case one of them died before the courthouse was completed, the judge appointed his successor, and the commission was authorized to employ architects, superintendents and employes, and to adopt plans and specifications and estimates, and invite bids and award contracts for the courthouse, and for furnishing heat, light and ventilating the same, and for sewerage thereof, and were given authority to determine all questions connected with that work until the courthouse shall have been completed' and accepted by the building commission. Thus the statute had one purpose, one object. The commission’s servicfe was continuous, beginning with its appointment and ending when the courthouse was completed.. It seems clear, thus viewed, that the work of the commission in carrying out the objects and purposes for which it was appointed, and the building of the courthouse down to its completion, constituted within the meaning of Gen. Code 26 “a proceeding” and that any amendment of the statute made after that proceeding was instituted and carried forward almost to completion, can in no manner affect the powers given that commission in the original act. Suppose, indeed, that the codifying act by some error had repealed the entire act creating the commission and authorizing the erection of the courthouse,, can it be said that if that had been done the commission would have been absolutely without power or authority to proceed at all with the completion of the building, and that it must remain in its unfinished and unusable state ? It would seem as though the very purpose and object of Gen. Code 26 was to provide against just exactly such a contingency, such repeals, and to permit the authority originally granted to be exercised down to the completion of the work which this statute itself originally authorized, and which wás begun and largely completed before this amendment was made.

The case of Cincinnati v. Davis, 58 Ohio St. 225 [50 N. E. Rep. 918], lends substantial support to this view. In that case the proper board of the city adopted a resolution to improve an alley of a certain width. Thereafter, and pending proceedings to improve the alley, the statute was amended, conferring the authority to do this upon another board. ,The Supreme Court held that such amendment did not work a discontinuance of the proceeding pending before the original board to improve the alley and that the improvement should be prosecuted to completion by the board that adopted the resolution, under favor of Gen. Code 26 (R. S. 79).

In passing upon the case, Minshall, J., in the opinion says:

“The question then arises whether the assessments are void, because the ordinance to improve, adopted June 20, 1893, was adopted by the board of legislation, instead of by the board of administration; or, whether, by the amendment of March 30, 1893, the proceeding did not abate for the want of jurisdiction in the board, before which it was commenced, to make it? We think not. The act of March 30, 1893, contained no express provision making it apply to pending proceedings. Hence, as we think, this proceeding was not discontinued thereby, and the board of legislation was authorized under section 79, Revised Statutes, to proceed with and complete the improvement as it did. This section relates to no particular subject of legislation. It relates to the operation of statutes in general. The section reads as follows:
“ ‘Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal, and where the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed; nor shall any repeal or amendment affect causes of such action,, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act. ’
“The section as first adopted did not contain the second clause as to repeals or amendments affecting the remedy; but as there was a disposition to hold that it did not apply to sucli changes in the law, this clause was inserted, so that a repeal or amendment affecting the remedy should not apply to pending proceedings ‘unless so expressed’; so that the amendment of March 30, 1893, does not apply to this case, if it is within the-provisions of the above section, whether it relates to the remedy or not, for the amendment contains no express provision to that effect. There seems to be the same reason for applying the provisions of this section to a pending proceeding for the improvement of a road or street that there is for its application to a pending proceeding in the nature of a suit, where the change in the law simply applies to the mode of procedure. In either ease it must be assumed that the proceeding was commenced with reference to the provisions of the existing law; and it is neither wise nor just, as a general rule, to disappoint the parties in this regard by a change of the law, and, as must frequently happen, after a considerable amount of costs and expenses have been incurred.
“The section announces the permanent policy of the legislature as to the operation of its statutes; and, where there are, in its opinion, sufficient reasons for a departure from this policy in a particular instance, it has been declared that the departure, shall be expressed in the amendatory statute. In so far as Union Co. (Comrs.) v. Greene, 40 Ohio St. 318, conflicts with this view, it is not approved. In Raymond v. Cleveland, 42 Ohio St. 522, a more correct view is taken of a clause similar to the provisions of section 79, Revised Statutes. There under the municipal code of 1869, and its amendments, proceedings had been commenced for the improvement of a street to be paid for by assessments on the property benefited. An assessment was made and set aside by the courts for irregularity. Subsequently, under provisions of the code in force when the proceeding was commenced, a reassessment was made; but the provisions of the code in regard to a reassessment had been previously, repealed by the revision of 1878; and it was claimed for this reason that the reassessment was' void. The revision, however, contained the following saving clause: ‘No suit, prosecution or proceeding shall be in any manner affected by such change, but the same shall stand or proceed as if such change' had not been made. It was argued that this provision related only to proceedings in the nature of actions and the like, and did not extend to the right to make a reassessment authorized only by the law that had been repealed. But Okey, J., in delivering the opinion said: ‘We are unwilling to place any such limitation upon the provision. It is remedial and no violence is done to the language by holding that it preserves the right to make this reassessment under the municipal code of 1869.’ ”

It would seem in view of the foregoing, that if it be conceded that the words added in Gen. Code 2338 be in fact an amendment of the statute of a character compelling a different construction than would be given it if the words were not added, then, nevertheless, the amendment would be without effect, because it relates to the work of building this courthouse, a proceeding, within 'the meaning of Gen. Code 26, long commenced and prosecuted before the amendment was made, and which was in fact made pending the proceeding relative to its completion.

The conclusion, therefore, necessarily follows that the amendment for which so much is claimed by the plaintiff here is not effectual to limit or restrict the powers of the commission granted by the original act so far as the proceeding relative to this courthouse is concerned, and that the commission has, with reference to this contract, the same power that it had before that amendment was made, and in view of the conclusions reached by the Supreme Court in Mackenzie v. State, supra, above referred to, we are of opinion that the commission had the power and authority to make this contract in the manner it did make it.

This conclusion necessarily disposes of the case, but we deem it proper to pass upon the other question here raised, namely, whether the interior decoration of this courthouse provided for in this contract is so essentially noncompetitive in character that the commission is not required to submit the work therefor to competitive bidding, assuming that otherwise the statute requires it to do so.

The contention of the plaintiff is that where a statute requires work to be submitted to competitive bidding and a contract to be made only with the lowest and best bidder, that then no construction is permissible which undertakes to read into the statute any exception, and that in such a case the evident design and purpose of the lawmaking power is to restrict all work to that kind and character which can be in its nature the subject of competitive bidding. Upon the other hand, the contention is that the purpose of the law is to protect the public against unwise and injudicious contracts resulting from favoritism, dishonesty, and to secure for the public the construction of any public work upon the best terms and to the best advantage and at the lowest possible cost, and that the only sure way of securing this is by open public competition; but it is further contended that while this is true, it was no part of the purpose of the lawmaking power thereby to prevent the public from having those things which are essentially noncompetitive, where they subserve a useful if not necessary purpose which otherwise could not be obtained, and that it is not inimical at all to the purpose of these statutes to limit the public bidding required to those things about which there may be competition. Naturally the things which are noncompetitive in their nature are few as compared with the number of things that are competitive. So here. Here is a great public building, erected at great cost, intended not only for the present but many future generations; imposing in appearance, beautiful in design, monumental in character, whose walls it is proposed to decorate in harmony with the style and structure of the building itself, in a manner at once to add to its dignity and its beauty, exhibiting those elements of taste, feeling and harmony corresponding to the highest aesthetic taste of present day culture. This work, we find’, is of that character that requires in him who undertakes to do it the idealism and imagination of an artist, the skill of the painter, the sentiment and feeling of the poet. That it-may be done to harmonize with the building itself, with the mural paintings proposed to be placed upon its walls and in the manner herein described, requires the commission should select the man fitted to do the work and not to submit the work to any man who might bid upon it, whether he is fitted to do it or not. It seems to us that it is not doing violence to the intention of the lawmakers nor the evils against which the statute is directed to construe it to be limited to work that is in its nature competitive and not otherwise.

This court in the case of State v. McKenzie, 29 O. C. C. 115 (9 N. S. 105), decided in 1907 this question, arriving at the same conclusion. In an able opinion by Henry, J., concurred in by Marvin and Burrows, JJ., it is said that “When the contemplated construction is .essentially and absolutely noncompetitive, because of its artistic nature, or is strictly monopolistic, because the function to be performed thereby is necessarily dependent upon a single means which is the subject of an exclusive patent, or- franchise, or sole source of supply, then the principle of competition is, so far forth, inapplicable.”

Numerous authorities from other states support this conclusion.

While the Supreme Court of our state has nowhere expressly passed upon the question, yet in the case of Mackenzie v. State, supra, Davis, J., in the opinion, speaking with reference to whether requiring public bidding had always worked out the best results or not, says:

“Every man has realized in his own experience, that the lowest price does not always secure satisfactory results and that some things which are most desired are not open to competition.”

To us it is obvious that it is most desirable that the interior decoration of this magnificent structure should be in harmony with its original design, and that the plans and specifications and ideas with reference thereto of the architect employed by the commission, Mr. Schweinfurth, should be carried out, and if carried out, will add permanently to the dignity, beauty 'and character of the structure itself. This, we are convinced, can not be done by submitting the work to competitive bidding, but can only be done by the commission’s selecting an artist whose skill, taste and aesthetic sense are of that high order that will enable him to carry out upon the walls of that building the scheme of decoration proposed.

It is claimed, however, that the Supreme Court of this state, has, in effect, determined this - question otherwise in the case of State v. Yeatman, 22 Ohio St. 546. In that case the Supreme Court held that a contract made by the county commissioners for re-copying plats of the county for use in the auditor’s office, the estimated expense of which exceeds $5,000, is void, as against the county, unless it be made with the lowest responsible bidder, in accordance with the provisions of the statute. The statute provided that in cases where the estimated expense exceeded $500, contracts should be awarded to the lowest responsible bidder, and Day, J., in passing upon the question, said:

“There is nothing in the character of the work to be contracted for that excludes it from the operation of this section of the statute. If the ‘lowest responsible bidder’ should not be possessed of the skill requisite to perform the work in a suitable and acceptable manner, he would be under the necessity, as in other cases, of employing those who have the capacity to do the work in a manner that will secure a faithful performance of the contract.”

"W"e do not think this is in conflict with the view we have taken of the case at bar. Obviously, the copying of plats required merely skill in copying, and it might be added, but ordinary skill at that, and it was with reference to work of that kind that the court was speaking; but in the ease at bar the work involves not only skill, but it involves taste, feeling, harmony, sentiment, ideals; indeed the whole category involved in what is denominated aesthetics. We thus conclude that for this reason, also, the contention of the plaintiff in this ease is not well taken, and that the commission had power and authority to make the contract which it is sought here to enjoin.

It is therefore ordered that the plaintiff’s petition be and it is hereby dismissed at the costs of the plaintiff.

Henry and Winch, JJ„ concur.


author: ROCKEL, J.

text:
    EXECUTORS AND ADMINISTRATORS — TRUSTS AND TRUSTEES.
    [Fayette (2nd) Circuit Court;
    December 14, 1910.]
    Dustin, Allread and Rockel, JJ.
    Humphrey Jones v. A. R. Creamer, Admr., et al.
    1. Probate Court Required to Examine Accounts Filed and. to Obder Correct Administration of Trust.
    It is the duty of the probate court (Gen. Code 11202) to examine accounts filed in that court, and sua sponte or on request of an interested party make such orders as are proper and ■necessary, to secure a faithful and correct administration of the trust.
    2. Testamentary Trust Enforceable According to Terms of Creating Instrument Until Equity Decrees Otherwise.
    A testamentary trust, where possible of performance and not contrary to law, must be enforced according to the provisions of the instrument creating it, until a court of equity decrees otherwise.
    3. Probate Court Cannot Terminate Testamentary Trust.
    The probate court has no power to terminate a testamentary trust.
    4. Acts of Trustee Confined to Execution of Trust Provisions or as Instructed by Court.
    A trustee should confine his acts to the carrying into effect of the provisions of the trust under which he is acting and if in doubt, apply to a proper court for instruction (Gen. Code 10857).
    5. Executor Cannot, by Agreement with Persons Interested, Divert Trust Funds from use Prescribed by Will.
    Where a testator in his will provided for the erection of a family vault and that a specific sum should be used for that purpose, and further provided “that the sum of five hundred dollars shall be set aside and invested in good farm mortgages, etc., and the income held as a perpetual fund for the care of such vault after the same is erected.” Held, that the executor cannot, even by consent of all persons having an interest in the estate of decedent, use said sum in the erection of the vault, and if it is so used, the executor is chargeable therewith and must account for same as provided in said will.
    [Syllabus by the court.]
    Error to common pleas court.

      Humphrey Jones, for plaintiff.

      Creamer, Creamer c& Thompson, for defendant:
    Cited and commented upon the ' following authorities: Eroll v. Close, 82 Ohio St. 190 [92 N. E. Rep. 29]; Page, Wills p. 758, Sec. 59; Oreen v. Hogan, 153 Mass. 462 [27 N. E. Rep. 413]; Ford v. Ford, 91 Ky. 572 [16 S. W. Rep. 451],
   ROCKEL, J.

This case originally arose on exceptions filed by the defendants in error in the probate court to the final account of Humphrey Jones, executor of the last will of Henry Windle, deceased. The exceptions were sustained by the probate court and the plaintiff in error appealed therefrom to the court of common pleas where the exceptions were again sustained and he prosecutes error from that finding to this court.

It appears that Henry Windle, the testator, died testate in 1902, childless, leaving one Clarissa Windle his widow. In February, 1906, and before the estate of said Henry Windle was fully settled, Clarissa Windle, his widow, died and A. R. Creamer was appointed administrator of her estate. She died intestate, leaving sisters, many nephews and nieces as her sole heirs-at-law, some of whom ar,e defendants in error.

Said Henry Windle, among other things, provided in his will that his entire estate should be converted into money, the same being about $20,000, and with the exception of a few small legacies, all should be invested in a mausoleum; and $500 was set aside as a trust fund to keep the same in repair. The items of his will relating thereto were as follows:

“I will and direct that the proceeds of the sale of my said two tracts of land and the money and other personal property which I may possess at my death, except said personal property bequeathed to- my wife in item seven of this will and the sum of $500 as hereinafter provided, shall be used and expended by my executor in the erection of a family vault in the Washington C. H., Ohio, cemetery, arranged for the reception of the bodies of myself and wife; and iny said executor is hereby authorized and empowered to purchase a suitable site for said vault, and contract for the erection of the same, and to do and perform all things needful and proper to fully carry out and effectuate my intentions and purposes in respect to said vault.”
“I will and direct that the sum of $500 shall be set aside and invested by my executor in good farm mortgages in Fayette county, Ohio, at not to exceed one-half the value of the land exclusive of improvements, and the income of said sum shall, be held as. a perpetual fund to b,e used in the care and maintenance of said vault after the same is erected.”

The executor of Mr. -Windle proceeded to convert the estate into money under the will of Henry Windle; the'widow, if she elected to take thereunder, would receive practically nothing, as it was provided that all should be invested in this mausoleum.

After Windle’s death the widow made some claims against the estate which, if true, might have absorbed the greater part of the estate, and in that way have defeated the will; but it appears that the widow was anxious that the mausoleum should be erected and it appears that likewise, the executor was very anxious that this should be done. It does not appear positively that the widow would have been so persistent in the assertion of her claims that the intention of the testator would have been defeated. However, finally she entered into a contract with the executor, in which she agreed that if the executor would put in all the funds of said estate, sin said mausoleum, she would relinquish all claims she had against the estate and put in $1,000 of her money besides.

In accordance with this contract between the executor and vthe widow, he proceeded to the erection of the mausoleum and the widow paid to him the amount that she agreed to and likewise entered her election to take under the will and release all her claims against the estate. ■

The executor believed, as the widow was the sole heir at law .of the deceased testator, that there could be no one else prejudiced, and that if she agreed that all of the funds of the estate might be put in this'mausoleum, that he had a right so to do, and that thereby he would be released from setting aside or- holding in trust the said sum of $500 which the testator had provided in item nine should be set aside and held in trust, for the purpose of maintaining said mausoleum.

The executor filed his final account setting forth the administration of said estate in which it was shown that all of the funds of said estate had been used, and that he had failed to reserve and set aside the sum of $500 for the purpose of keeping said mausoleum in repair, as provided in item nine of testator's will.

The widow, Clarissa Windle, having in the meantime died,. A. E. Creamer, one of the defendants in error, was appointed her -administrator, who filed exceptions to his account, and among other things excepted to the same for the reason that said $500 had not been reserved or set aside to keep said mausoleum in repair, as provided in said will.

In the court below'the executor filed a motion to dismiss the exceptions, because A. E. Creamer as administrator of the estate of Clarissa Windle, deceased, had no interest pecuniary or otherwise in the matters involved in this case, and had no right under the law to file exceptions, or -to become a party thereof. This motion was overruled and the matter was heard further upon the merits. This motion raises the interesting question, whether or not before a person can‘file exceptions in a court, he must have some pecuniary interest in the matter.

In the case -under consideration, it will be admitted that neither the heirs of Clarissa Windle, nor her administrator could be financially benefited by requiring the executor to set aside the $500 as stated in the will. Whether by reason of the fact that this was to be a family vault and as such be an object in which the heirs of Clarissa Windle might have some interest in having it properly maintained, presents another question; and while not necessary in the decision of this case, it would appear that they ought to have some right to see that the grave of an ancestor was properly taken care of and therefore if there was a testamentary provision made for that purpose, that they might see that it- was enforced. It is, however, generally admitted that these heirs as well as the administrator, so far as they claim under or through Clarissa "Windle, are estopped by the contract of Clarissa Windle, made with the executor. In a certain measure this may be true, but even upon this plea of estoppel, there may be some doubt arising from the nature of estate devised.

In the recent case of Kroll v. Close, 82 Ohio St. 190, it is said, “the burden is upon the party who relies upon estoppel, to prove clearly and unequivocally every fact essential to the. estoppel.”

The ease just cited. is an interesting one when considered with the case at bar. In the case of Kroll v. Close, supra, the administrator, against the reluctant consent of the widow,, had expended a rather large sum for funeral expenses, and! exceptions-were afterwards filed by her to such expenditure;, and we think that in a case involving a trust of the character' of the case at bar, the probate court has full and complete authority to go into the matter of exceptions, to the account of the trustee or executor, on its own motion, and if that be true, it is an immaterial matter who may be instrumental in. bringing the court into action.

The statute of Ohio (R. S. 6403; Gen. Code 11202) does not anywhere specifically state that a party filing exceptions, must b,e an interested party.

Gen. Code 11202 provides that;

“The probate judge may examine under oath, all executors, administrators, guardians, and trustees, and assignees,, trustees' and, commissioners of insolvents, touching their accounts. If he deems it proper to do so, he may reduce such examination to writing, and require such executor, administrator, assignee, trustee, or guardian to 'sign it. Such examination must be filed with the papers in the case.”

It is distinctly stated in a work on probate practice in-Ohio, “that the mere fact that no exceptions have been filed to an account does not relieve the court of its duty to make-an examination of the account, and, for matters unexplained by the account call the accountant into court to malee an explanation.” Rockel, Prob. Prae. Sec. 734. And this doctrine. seems to be approved in the case of Kroll v. Close, supra, in the third paragraph of the syllabus, where we find this statement:

“It is the duty of the probate judge, upon the hearing of an administrator’s or executor’s account, whether exceptions have been filed .thereto or not, to scan closely the amounts claimed to have Been paid for funeral expenses; and in the absence of statutory or testamentary provisions, the allowance for such expenses must be reasonable, having regard to the •amount of the estate, the station in life of the deceased and the customs of the people in the same station, and if unreasonable and extravagant should be disallowed, even as against legatees and next of kin.”

If it is the duty to disallow an expenditure made for funeral expenses,, even as against legatees and next of kin, how much more would it be the duty of the probate court to enforce a provision of a will of a deceased testator. In some other states it is provided by statute that no one can file an exception, except he is an interested party, but even if that were a statutory provision of Ohio, upon the decision above quoted of the Supreme Court, and in accordance with our own ideas, we believe it to be the right and the duty of the court to enforce the provisions of a trust, when the same is being executed by a person, who is under the jurisdiction of the court. So we find that there was no prejudicial error in the court overruling this motion.

The plaintiff in error and executor in justification of his not setting aside the $500 as provided in the said will, claims that if he would not have made the contract with Mrs. "Windle, whereby she agreed to waive her claims against the estate, that it .would have been impossible to erect a mausoleum at all, and the trust would have failed. "We are not so sure that the testimony shows that such would have been the result. It appears from the testimony that the widow was very anxious to have this mausoleum erected and it does not appear whether the claims that she asserted against the estate would have been such as would have prevented the building of a mausoleum; perhaps not as costly a one as the one that finally was erected. The plaintiff in error has sought to have the doctrine of cy pres\ applied. It is questionable whether this doctrine is applicable to a case of this kind. It seems that the doctrine of cy pres has been applied solely for the purpose of preventing a failure of a devise to charity made by a testator in his last will and testament.

The erection of a monument over a person’s grave can hardly be considered in the light of a devise to a charitable object or for charitable purpose.

If the executor was in doubt as to the proper construction of this will, and he wished to know what his rights and duties were, the statute (it. S. 6202; (den. Code 10857) makes ample provision for his filing a petition, and have a court of equity act and instruct him in a proper performance of his duties; but he claims that even if he has not done so in this ease, that if he had practically done that which a court of equity would have ordered him to do, that his action should be sustained. This would be, as we think, the approval of a dangerous doctrine in reference to trustees in the performance of their' duty.

If a trust is useless or impracticable, etc., a court of .equity upon a proper showing may terminate it.

In the case at bar, it is clearly evident from the testimony that the executor built the mausoleum and used all the funds on the theory that there was no one else that had any interest but the widow, and in that way no exception could be taken, even if the provision of the will was not complied with.

If a person is to have the right to dispose of all his property by testamentary provision in any manner that he may see fit, so long as the same is not contrary to law, then it. should be the duty of the court to enforce that right and not permit heirs and devisees and legatees merely because they think differently and without any sanction of the court, proceed to annul a testator’s deposition. If Henry Windle had the right to dispose of his property as he saw fit, he had a right to make a provision that the sum of $500 should be set aside as mentioned in item nine of his will, and the following from the case of Kroll v. Close, supra, page 198, is not inapplicable to the case at bar.

“The administrator appears to have been a person having knowledge of the usual duties of an administrator, for he had been a clerk in the office of the probate judge. (In the case at bar he is an able lawyer.) He was there as a trustee for creditor^ and the legatee. He was not bound to listen to the desires and importunities of persons who desired to be liberal with money which was not theirs to spend. He is presumed to have known the law, and that, no matter who desired it or who assented’to it, his act in purchasing that casket was liable to be reviewed, either with or without exceptions, by the probate court when he should account for the assets of the estate.”

"We therefore find no prejudicial error in the court below and the same is affirmed.

Dustin and Allread, JJ., concur.

Note. — Since the decision was rendered the following pertinent cases were brought to the court’s attention asto when a trust will be terminated. Robbins v. Smith, 72 Ohio St. 1 [73 N. E. Rep. 1051]; Robbins v. Smith, 27 O. C. C. 91 (5 N. S. 545); Lohrer v. Citizens’ Sav. & Tr. Co. 14 Dec. 289; Kiersted v. Smith, 10 Dec. 279 (8 N. P. 378).


author: HENRY, J.

text:
    MORTGAGES — COUNTERCLAIM AND SETOFFPLEADING.
    [Cuyahoga (8th) Circuit Court,
    May 31, 1910.]
    Henry, Marvin and Winch, JJ.
    Yetta Krause v. Guarantee Title & Trust Co. et al.
    Money Judgment Cannot be Asked in Cross Petition in Foreclosure Proceeding.
    Personal judgment can not be recovered by a cross petitioner in a foreclosure suit, under Gen. Code 11306 or 11317, notwithstanding the cross petitioner holds an express lien on the same land upon which the plaintiff is seeking to foreclose.
    [Proof of this decision and syllabus has been submitted to Judge Henry and corrected.]
    Error to common pleas court.

      Tolmd & Pearson, P. Higley, V. C. Leslie, for plaintiff in error.

      Thompson & nine, Ulmer & Bernstein, F. Desherg, V. U. Burke, Griswold & White, for defendant in error.
   HENRY, J.

The judgment and decree of the court below in this mortgage foreclosure case must be so modified as to eliminate the personal judgments for money that were rendered upon cross petitions filed therein.

Gen. Code 11306 (R. S. 5058) provides that:

“The plaintiff may unite several causes of action in the same petition, whether they are such as have heretofore been denominated legal or equitable, or both, when they are included in either of the following classes:
"1. The same transaction.
“2. Transactions connected with the same subject of action. * * *
“8. Claims to foreclose a mortgage given to secure the payment of money, or to enforce a specific lien for money, and to recover a personal judgment for the debt secured by such mortgage or lien.”

It is to be presumed that paragraph 8, above quoted, is not a mere needless repetition of what is already included under paragraphs 1 and 2.

When therefore in Gen. Code 11317 (R. S. 5069), the legislature in defining a counterclaim uses substantially the same language as that contained in said paragraphs 1 and 2, and omits such language as is contained in paragraph 8, the conclusion. would seem to follow, that it designedly excluded the joinder in a cross petition of a counterclaim for foreclosure with one for a money judgment, unless there is some other reason for such joinder. But be that as it may, it cannot ordinarily be said that merely because a defendant’s claim for.money is secured by an express lien on the same land as that to which the plaintiff’s lien attaches, a cross petition praying for a money judgment on such claim asserts a cause of action in favor of such defendant “arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action” so brought by the plaintiff. The defendant’s lien on the same land undoubtedly may give rise to a cause of action so connected; but a cause of action arising on the claim for money secured by such, lien is wholly unconnected with any cause of action asserted by the plaintiff in foreclosure.

The judgment below will therefore be modified as stated, and as so modified, affirmed.

Marvin and Winch, JJ., concur.