author: Scribner, J., (Orally.)

text:
    (Sixth Circuit—Lucas County, O., Circuit Court
    Sept. Term, 1891.)
    Before Bentley, Scribner and Haynes, JJ.
    ANNA MILLER, et al. v. THE CITY OF TOLEDO.

      Sewer — Assessment by benefit on non-abutting lots.—
    Where an assessment for a sewer has been made according to benefits on property also not abutting thereon, such sewer is to be considered as a sub-main sewer, and the property owners assessed may connect with, it although not abutting thereon, and can not be assessed again later for the construction of another sewer.
    Error to the Court of Common Pleas of Lucas County.
   Scribner, J., (Orally.)

About 1876, proceedings were instituted before the common council of the city of Toledo for the establishment and construction of a sewer to be located between Oliver street on the north, and Broadway on the south, the sewer to extend easterly and westerly along an alley situated between these streets. The ordinance providing for the construction of the sewer, declared that the cost and expense should be assessed according to the benefits, and with no limitation m this requirement of the ordinance as to the lands that should be or might be assessed according to the benefits. It -is not limited to the abutting property. This sewer passed through Morris’ addition, and it is known as sewer No. 195. Certain lots in that addition, as originally platted, hada frontage of fifty feet on Oliver street, and also on Broadway, extending back that width to the alley in which sewer No. 195 w constructed. These lots were 150 feet in depth, and they were assessed their proper proportion of the costs and expense of constructing this sewer according to benefits, and this assessment was confirmed by the council.

Prior to the proceedings of the council, providing for the establishment and construction of this sewer, lots 607, 609 and 611, lying between the alley and Oliver street, had been subdivided by the owners into six parcels of twenty-five feet in width, each having a frontage on Logan street on the east. They were numbered 1 to 6 consecutively. An alley ten feet in width was established and opened across lot 607 in the rear of this subdivision, extending from the alley to Oliver street.

At the time of the establishment and construction of this sewer, the plaintiffs were the owners of, and occupied subdivision 2, on the north, and one-half of subdivision 3, of this subdivision. This parcel was assessed $23.as its fair proportion of the cost and expense of constructing sewer No. 195, and this assessment was duly paid by the owners.

Shortly after the construction of the sewer, and of the payment of the assessment, the plaintiffs constructed at their own expense a catch basin upon their premises connecting with the sewer by laying a 9 inch drain tile for that purpose. Necessary house connections were also made, and there was expended in this work some $60 to $70. The plaintiffs made use of their drainage so provided until in 1892, after which there was established and constructed upon proceedings of the common council sewer 436. The expense of constructing this sewer was to be paid by assessment according to benefits. The total amount assessed upon plaintiff’s property, upon the basis of benefits furnished by this sewer, was $83.55.

This proceeding was brought to enjoin the collection of this assessment, on the ground that, by the establishment of sewer 195, the plaintiffs had been provided with sufficient drainage. This claim is based upon section 2380, of the Revised Statutes:

“The assessment shall not exceed the sum that would, in the opinion of the council, be required to construct an ordinary street sewer, or drain, of sufficient capacity to drain or sewer such lots or lands; nor shall any lots or lands be assessed that do not need local drainage, or which are then provided therewith; and the excess of' the cost, over the assessment herein authorized, shall be paid out of the sewer fund of the corporation.”

It is claimed on the part of the city that sewer 195 was a local sewer; that plaintiffs were not entitled to drain into it, as the lots did not abut upon the street through which it passed; also that they had never received from the city authorities the proper permit authorizing them to drain into the sewer, and that such use, if known to the city, was merely permissive, and did not bind the city to permit its continuance.

It does not appear that any formal permit was ever issued to the plaintiffs. The construction of the catch basin and the laying of the drain tile connecting it with sewer 195 had occupied about a week, during -which the entire alley was closed on account of the work, and they had been in continua] use without objection, and until the construction of sewer 486, in 1892, a period of about fourteen years.

In constructing sewer 436 in the alley upon the subdivisions as enumerated, the drain tile connection of the plaintiffs were destroyed, and hereby it as rendered impossible for the plaintiffs to re-establish an outlet from their catch basins to sewer 195.

We think, however, under the rulings of the Supreme Court, that the city having acted in good faith in establishing and constructing sewer 486, incurred no liability for injuries sustained by the plaintiff by reason of the establishing and constructing the server, and all claim-for such liability is withdrawn from the petition in this case. But the important question is as to whether the property of the plaintiffs is liable to be assessed for the cost of sewer 436. This depends upon the further question as to whether at the time of establishing and constructing sewer 195, the plaintiffs were entitled to make use of it for the purpose of draining their property, and the latter was liable to assessment for the cost and expense of its construction. Upon this question, the counsel for the city cites section 2397 of the Revised Statutes, and 2380, which I have already read, and 2384. Section 2397 reads as follows:

“The council may provide for the construction of branch or local sewers within any street, or other public ground, within the corporation, wherein a main sewer is not established or built, where local sewers shall connect with a main sewer convenient thereto, as the council may direct; and if the corporation is laid off into districts, the connection shall be with a main sewer in the district wherein the local sewers .are constructed; but no sewer shall be considered local, ■except such as are intended for and used exclusively for the •drainage and accommodation of lots abutting thereon.”

Section 2234, which is cited, simply provides for the limitation of the assessment: “In no case shall the assessment •exceed the sum of two dollars per foot front on the property •assessed; and when the amount of the quotient exceeds that sum, the excess shall be paid out of the sewer fund of the ■corporation. ”

These are the onty sections cited on the part of the city as bearing upon this question. It is claimed that this sewer is purely a local sewer, and therefore it can be used only for the property abutting upon it. The property of the plaintiffs here, it is said, did not abut upon the alley where the sewer is located, and therefore it was not subject to be assessed for it, and that the plaintiffs were not entitled to connect ■with and use it.

The question arises as to whether or not, under the statute, :any part of the expense of constructing a sewer may be specially assessed upon property not abutting upon the street .and alley in which the sewer is constructed. Sections 2397 and 2385 bear upon this point. Section 2397 is one regarding local sewers, to which I have already referred. Section 2385 is as follows:

“If the assessment be according to benefits, the council shall appoint three judicious freeholders of the corporation, or its vicinity, who shall assess the estimated expense of the main sewerage upon the lots or lands along which the same passes, and the manner above provided, in proportion to benefits; and the estimated expense of the local sewerage where such local sewerage is provided for by this subdivision, shall be assessed on such lots and lands as will, in their ■opinion, be benefited thereby, whether fronting on the public ground in which the local sewer is to be constructed, or not, in proportion, as nearly as may be, to the benefits which may result to each lot or parcel of land.”

The last section seems to indicate that where the assessment is by benefits, the amount of the benefit, although the property be not abutting, may be assessed. This could scarcely be permitted when property owners were not allowed to make use of the sewer. It does not appear here that .sewer 195 was intended *to be used exclusively as a local sewer. It is of considerable length, extending along the alley before described, and, according to the map of the sewer district in which it is located, it is tapped by other sewers. It does not appear that at the time of the establishment and construction of this sewer, the city contemplated the construction of a sewer in the alley where No. 436 is now located. No step was taken in that direction for about fifteen years; no step indicating that a sewer would ever be constructed there, and until the city should take steps for the location of a new sewer, the plaintiffs were justified in availing themselves of whatever rights they had in the existing sewer. The cost of establishing sewer 195 was assessed upon the lots lying along the alley in which it was constructed upon either side. Unquestionably this was properly done as to all these lots, which are numbered 607, 609 and 611, which had been subdivided as before stated, the proper amount of the assessment being apportioned tc the several subdivisions. The council thus elected to treat the sewer not as a local sewer strictly, under section 2397, but in the nature of a sub-main sewer, under section 2395. If, therefore, the proceedings of the common council, establishing sewer 195, do not come within section 2385, we think it is not governed by section 2397, establishing local sewers, but comes within the operation of section 2385, providing for sub-main sewers.

E. O. King, for Plaintiffs.

C. F. Watts, City Solicitor, for Defendant.

It results from this view of the law that the plaintiffs are entitled to an injunction as prayed for in the petition, for at the time sewer No. 436 was provided 'for, the plaintiffs were furnished with sufficient drainage.


source: Caselaw Access Project

author: Caldwell, J., (Orally.)

license: Public Domain

text:
    (Eighth Circuit—Lorain Co., O, Circuit Court
    October Term, 1894.)
    Before Baldwin, Caldwell and Hale, JJ.
    THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO. v. A. B. ORVIS, ADMINISTRATOR.

      Death of child eight years old at R. R. crossing.

    The charge of the trial court that tho R. R. Co. was bound to exercise ordinary care in the transaction of its business, but that ordinary care, at one point might be very much less than ordinary care at another, and (under the circumstances of this case, at a street crossing) that the R. R. Co. shou d exercise great caution at the point in question, is not erroneous.

      Failure of JR. JR. Co. to have man on top of front car — JRules of contributory negligence as applicable to a child eight years old—

      Duty of JR. -R. Co. as to trespassers.

    A R. R. Co. in running its trains is not bound to take throughout all the precautions that it would take at a street crossing, but it is bound, as against trespassers on its right of way, to exercise ordinaiy care under the circumstances of the place to protect them from injury.

      Right of father of child hilled to sue for loss of services.

    The common law gives no right to the father of a child killed by the negligence of another to recover for the loss of his services during the period of his minority.
    Error to tbe Court of Common Pleas of Lorain County.
   Caldwell, J., (Orally.)

Charles Orvis was killed by being run over by the cars of the plaintiff in error, at the point where the railroad crosses a street in Elyria. A. B. Orvis was appointed administrator, and brings this action, in which he avers that this accident was caused by the carelessness and negligence of the railroad and its employes, in that there was not sufficient protection given this child at this crossing; in that there was no proper service at that time by way of giving him notice of danger by means of a flagman at that place; and in the next place there was no person on top of the car that did the killing to give any notice to a person on the track. The decedent was a child almust eight years old. The circumstances were these. I might say, before stating the circumstances, that the railroad company makes few admissions, but denies, principally, all the allegations of the petition, especially the charge of negligence I have spoken of. It seems that at this point, where this accident occurred, there are three tracks of the railroad company; two of them, the two soulh tracks, are used for cars to pass upon, the other one leads to the freight house, and over which trains are not usually run, but ears are passed over there at different times and in different occasions, as it may be necessary to unload there, or for other purposes. On this occasion an engine having some cars attached to it passed in upon this track and switched a little east of this crossing and a little west of the freight house of the plaintiff in error, and there were cars standing on the track,and as the engine and the cars approached these cars, they shoved them along ahead of them, and these cars being thus shoved passed over this highway, and this child was upon the track upon which these cars were being pushed, and he was hit by the car and thrown down and killed. It is claimed as an act of negligence, that he got no notice in fact from the flagman, who, it appears, was there at his place, and that no one was on top of these cars that were advancing, or upon the froat car as they were shoved along to give any notice or any warning of danger. The matter that made the flagman, as was claimed, of no account in this case, was the fact that he was on the south side of the tracks, and, at the time this accident occurred on the north main track, there was passing towards the east and from the west, a long train of freight cars, and they entirely ■obscured, or nearly so, the view of the flagman from any ■one approaching this crossing from the north, and that being the case, the flagman, so far as giving any warning to this child, was of no consequence whatever, and it is alleged to be a ground of’ neglect and careless management of the passing of these trains over that crossing; that being so, it became necessary, if cars were being passed west at the same time this other train was passing east, that greater caution should be observed in the management of the train that was passing to the west. There being no one on the car, the front car of that train, the accident was caused by the negligence of the company. It is said, on behalf of the railroad company, that this child was guilty of contributory negligence, and that his death was caused, at least in part, by his own negligence, and that being the case, there can be no recovery here. The case was tried, and comes to us on ■error with a bill of exceptions, setting out all the testimony. It is claimed, in the first place, that the conclusion of the jury was not correct, both as to finding negligence against the Lake Shore and Michigan Southern Railway Company, and also in finding that this child was not guilty of negligence that contributed to his own injury.

We have examined the question so far as this testimony is concerned, somewhat in detail, and while the testimony is conflicting as to whether there was any one upon the car, where it is claimed a man should have been — upon this car that was passing to the west, and while it is conflicting as to whether the person who got on that car, or got on the cars, whether that car or some other, is also in conflict, and whether he got on the car in time to see this child before he was killed, if he had looked, is somewhat in dispute, and as to whether, when he got on the car, he looked in that direction where the child was, is in conflict also. These matters being somewhat controverted in the testimony, we are unable to say that there was any error on the part of the jury in finding that the railroad company was guilty of negligence.

As to the child, it is claimed that he was given some money by his mother (he lived north of the crossing, or he was staying north of this crossing with a sister of hers), and that he started over to town on an errand, or for some purpose; and when he approached this crossing this freight train going to the east was passing over the crossing, or about to pass, and no one knows exactly when he approached that crossing. It does not appear from the testimony. The first thing that is seen of this child by any one he was upon the north track at that crossing, and perhaps a little west of the sidewalk — a foot or so off the street — a little west of the west line of the street as it crosses the railroad track at that point. He seemed to be bending over with his face to the west and his back to the cars that were approaching him. At that moment he did not seem to be looking in the direction of the cars that killed him. He was picking up pebbles, according to some of the testimony. And there is some testimony to show that he was throwing the pebbles under the train that was passing.

It is claimed that the testimony shows that he was not looking in the direction from which the car came that caused his death. That being so, and having been seen there for some seconds before he was killed, by the flagman who undertook to warn him of his danger, it is claimed that he was guilty of contributory negligence, and that the jury, in finding that there was no contributory negligence, as they must have found under the charge of the court, in order to find the verdict against the railroad company, were clearly wrong, and that the finding was not warranted by the evidence. Now, it is true that all the testimony that locates this child locates him upon the track, perhaps between the rails and a little west of the street line, and with his back towards the cars that were approaching him; picking up pebbles, or at least bending over with his face to the west, and with his back towards these cars. And the question was at once raised whether he was exercising that caution that a child of his years should have exercised, or would ordinarily have exercised. The matter was left to the jury, and the jury have found that there was no contributory negligence, and we do not feel warranted, under the law, as it pertains to a child bf these years, in finding there was any contributory negligence. The fact is, the child was not seen, until just a moment or so before he was killed, by any one, except the flagman, and the flagman’s view must have been necessarily very indistinct, because of the freight train that was passing to the east. It was passing at the rate of ten, twelve or fourteen miles an hour, according to the testimony, and the flagman got a view of this child only as he got a glimpse of him between the cars, which was a mere glimpse, without any distinct view. No one has been able to say that this child, when he approached this place, looked carefully before going upon the track. It .is not known whether at the time he got there these cars had commenced to move. It is well known that cars are frequently standing upon this track in frontof the freighthouse without moving, and this child was more or less familiar with that fact. What precautions were taken by him are unknown and untestified to in this case. And it would be a little hard to say that a child of these tender years, if, when he approached this crossing, looked and saw no cars moving, that it would necessarily be negligence for a child of these years to pass upon that track; and he got no warning after that that any cars were approaching ovor that track, and taking all these facts together, the situation, circumstances, and when this lad was seen, and for the few moments that he was seen by any one distinctively, we cannot say this jury erred in arriving at the conclusion it did upon that branch of the case. Now, it is claimed there were a number of serious mistakes in the trial of this case, for which it should be reversed. In the first place, it is claimed that the charge is unfair in the manner in which it states the case to the jury; that it was very prejudicial to the plaintiff in error, and for that reason should be reversed. For instance, it is claimed that the court obscured every question affecting the plaintiff’s contributory negligence, and made prominent every question that would make the defendant liable. The great question that the court kept holding prominently before the jury all the way through the charge, it is claimed, was the negligence of the defendant. And in so doing, the court charged that in passing over this street with these cars, the company should exercise great caution. It is claimed that this term “great caution” was an error; that the measure of caution was that of ordinary care; that is, such care as is required under such circumstances, and that for the court to say that great caution should be used at that point was an error. Now, we find, in looking at the charge, that the court had been saying to the jury that the railroad company was bound to exercise ordinary care and prudence in the transacting of its business in passing over this highway, and then went on ■and explained to the jury that ordinary care was measured by the hazard, by the danger that attended the transaction of the business. That ordinary care at one point of their road might be very much less than ordinary care at another. The •court was speaking of this road and the danger there was to persons along the street, and the railroad at the same time passing its cars over the same, and calling the attention of the jury at the time this was being done to the fact that the view of any one approaching from the north could not be aided by the flagman, and there was nothing to warn any ■one of the danger upon the north track. Taking all this into consideration, the court did charge that the railroad company should exercise great caution, and we think that was not out of place any more than if he should have said that they should exercise great care, because there were hazards ■attending the circumstances It- is said that in further misleading the jury he charged in such a way that the charge was misleading and prejudicial to the plaintiff in error. It is said that the court urged this question prominently in the charge, “could that accident have been prevented if a person had stood on the front end of that car to have observed the approach of persons in front of the same?”

Again, the court, in another place, charged the same thing, asking almost precisely the same question, and it is claimed by the court turned the jury’s attention almost entirely to the question, “Could this have happened if anyone had been on the car in the place where some one should have 'been?” In another place it is said, “Did, or did not, a person stand on the front of that car,” and.never once saying to the jury, “did, or did not, this child look to see if a train was approaching? Could this accident have happened had that child looked to the west to see whether danger was approaching him when he was standing upon the railroad track?” In all this the court is directing the jury to the negligence charged and the manner in which they shall weigh the testimony, and determine whether or not there was negligence on the part of the railway company, and while it does not state the same question in regard to the child, yet it is not denied but that the law he gave in regard to the' child, in regard to the responsibility of the child, and whether or not he was negligent, was correctly stated in the charge.

The facts were, no one saw the child when he approached. If the child had stood there looking to the east all the while, undoubtedly he would have seen these cars when they approached him, and no one knows but that this child, when he approached the track, looked to see if the cars were approaching. We cannot see that this court was so unfair in this charge that we should now say after this trial that there was unfairness in the charge, and especially should we not say that the court was so unfair that this verdict should now be reversed. Now, it is complained that the court erred in its requests; that the plaintiff in error made certain requests which should have been given in this case and were not.

On page 257 of the record, this request was asked: “It was the duty of the decedent, when approaching or standing upon the railroad where cars were being run, to look out for the approaching cars, and if you find he failed to do so, without a reasonable excuse therefor, he was guilty of such, negligence as will prevent the plaintiff from recovering in this case.”

Now, here, just what is the duty of the child, is the question. Had it been an adult there would be no question. But it is not known in this case but that the child did look. He was only seen here by any one distinctly for a moment, and for that moment his face was turned to the west. If he had been looking in the other direction just a short time before, and these cars were not then moving, but were standing still where they were, and then had turned his face to the west for a moment only, or for a few moments, it would have been entirely wrong for the court to charge that if he was looking to the westward for those few moments, although he was looking a moment before in the direction of the cars and did not see them, it would be negligence. Under the peculiar facts of this case we think the court would not have been warranted in giving that request, although it was good law when applied to adults.

The next request which was refused was: “If you find that the decedent approached this crossing or stood thereon without looking out for approaching cars, he was prima facie guilty of such negligence as will prevent a recovery by the plaintiff in this case, for injuries occasioned to decedent while so approaching or standing upon said crossing, from the mere carelessness of the employes of the company, and this presumption of negligence can only be rebutted by facts and circumstances showing that is was not reasonably practicable for decedent to make or keep such lookout, or such facts and circumstances as would ordinarily induce persons of common prudence to omit such precaution.”

Now, there is one trouble with all these requests — the}7 none of them take into consideration the age of this child. There are many of them which are good law, if you apply them to an adult. But suppose no one had seen this child there at all, and this request had been asked, the court would certainly have been justified in refusing it, as there were no facts from which the jury could come to the conclusion. Now, if the child was only seen for a moment, it is not known how long he had been there, except that his mother thinks it was a very short time between the time he left the house and the time he was brought back. No observation was had of this child but for an instant before he was killed. I think I am justified in saying but for an instant, and all the rest of the time the child was there no one saiv him. When he approached no one knows; what he did, no one knows; and it is improper to submit the question to the jury to say that after having approached that crossing he stood thereon without looking out for approaching cars, because there is no testimony to determine whether he approached the crossing or not without looking out for the cars. It would be asking the jury to determine a question upon which there was no testimony. Another request was: “It was the duty of the decedent, when approaching or standing upon the crossing, where he was injured, to use ordinary care in the use of his senses to ascertain if there was a train in the vicinity liable to pass over said crossing, and if he neglected to so use his senses, and by reason of such negligence was injured, he -was guilty of such contributory negligence as would prevent a recovery in this case.”

That follows exactly under the same reasons as given in the two last. Another request was: “It was the duty of the decedent, when approaching the crossing, to use ordinary care.” There is no testimony but that he did. There is no testimony, one way or the other, upon the question. That being the case, the court was justified in refusing to submit to the jury the question that was not in the case at all. There was no testimony bearing upon that question from which the jury could determine.

Another request was: “If you find that at the time of the accident the decedent was west of the highway upon the right of way of the railroad company, picking up stones, or using the track as a play ground, and while so engaged he received the injury set forth in the petition from the mere carelessness of the defendant, your verdict should be for the defendant.” This is the same law that was charged in almost the same words, that was charged in the case of Canfield v. The Lake Shore Railway Company, in a case tried in Cuyahoga county. It was reversed by the District Court, and the reversal affirmed by the Supreme Court, and the law was laid down in that case by the Supreme Court that that was not the law. It is not the law that if a party is a trespasser upon a railroad track at a point where there is no crossing; that is, suppose this child had gone to some place out in the field, instead of the highway, that then he cannot complain if he is injured by the negligence of the company.

It will not appear that the railroad company is bound to take all the precaution that it would take at the street crossing, but it is bound to exercise ordinary care to protect such persons under the circumstances of the place. And when it sees, or might have seen, by the exercise of such care, an individual upon the track, it is then bound to use all the means that it can to prevent any injury to the person upon the track, and if the person is injured by any neglect to use such means, the person injured can recover, if not guilty of contributory negligence.

Another request was: ‘‘If you find that at the time of the accident to the decedent he was upon the defendant’s right of way, outside the limits of the highway, engaged in picking up stones for his amusement, or otherwise using the same as a play ground, without any permission from the defendant company to so occupy the same, he was a trespasser upon the grounds of the company, and if while so engaged he received the injury set forth in the petition from the mere carelessness of the defendant, the plaintiff cannot recover in this case, and your verdict should be for the defendant, ”

It is argued by counsel for plaintiff in error, that the father of the deceased has a right to sue for a.nd recover the value of the services of the child up to the time he would be twenty-one years of age had he lived, if he was killed by the negligence of plaintiff, and hence it is error to allow the plaintiff below to recover for such period; for the father may also sue, and thus the railroad may be compelled to pay twice; that the statute does not undertake to take away the father’s right; hence in a case like this the representative can recover for only the period not covered by the father’s right.

This proposition assumed that the father, at common law, has an action against one causing the death of his son by negligence. This is not the law. The common law' gives no such right of action. Cooley on Torts, 14, 262; 2 Thompson on Negligence, 1272; Sedg. Meas, of Dam., 7th Ed. 588 and note; Sutherland on Damages, 281; Insurance Co. v. Brame, 95 U. S. 757; Dermick v. R. R. Co., 113 U. S. 11; Wyatt v. Williams, 43 N. H. 102; Telfer v. Northern R. R. Co., 30 N. J. L., 109; Whitford v. Panama & C. R. R., 23 N. Y. 478; Cleveland & Co. R. R. v. Bowman, 66 Pa. St. 393; Worley v. Cincinnati & Co. R. R. Co., 1 Handy, 481; Schneider v. Hosier, 21 Ohio St., 98-110.

!>/. There are some decisions to the contrary, but they are against the weight of authority.

. Wc find no error in the record,and we affirm the judgment.


author: Swing, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan’y Term, 1893.)
    Before Smith, Swing and Cox, JJ.
    JAMES MORGAN v. PATRICK TIGHE.
    The police justice appointed by the council of a village under Sec. 1831 Rev. Stat., as amended 89 O. L. 139, has jurisdiction in all the offenses against the State in which the mayor of the village has jurisdiction, among which is keeping open saloons on Sunday.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

Patrick Tighe, the defendant herein, was found guilty of keeping open a place where intoxicating liquors were sold on Sunday, the first day of the week, September 4, 1892, in the village of Avondale, this county. This finding was made by Malcom G. Davies, police justice of said village. Said Tighe having been found guilty, said police justice ordered that said Tighe be imprisoned in the work house of said city for a term of ten days and to pay a fine of $50 and the costs.

While undergoing sentence, the said defendant Tighe, procured a writ of habeas corpus to issue from the court of common pleas of this county to the plaintiff herein, James Morgan, who was the superintendent of said Cincinnati workhouse, and who, as said superintendent, had the custody of said Tighe. Upon the trial, the court of common pleas found that the said Morgan unlawfully restrained Tighe of his liberty, and he was ordered to be discharged from the workhouse. To this judgment Morgan excepted, and now prosecutes this action seeking for a reversal.

The only question in the ease is as to the jurisdiction of a police justice to hear and determine offenses against the laws of the state of Ohio. It is contended by counsel for Tighe —and this was the view taken by the court of common pleas —that police justices in villages have no authority to try and determine offenses against the state. Whatever power and jurisdiction a police justice has, is conferred by section 1831, Revised Statutes, as amended in 89 Ohio Laws, 138, which is as follows:

“In villages the council may, upon the recommendation of the mayor, by a vote of all the members elected, appoint some justice of the peace, resident of the corporation, police justice, who shall, during the term of office of such mayor, by a vote of all the members of the council, have concurrent jurisdiction of all prosecutions for violations of ordinances of the corporation, with full power to hear and determine the same, and shall have the same powers, perform the same duties, and be subject to the same responsibilities in all such cases as are prescribed in the preceding sections to be performed by and are conferred on the mayor of such corporations. ”

The mayor, in the preceding section, is given jurisdiction in certain offenses against the state, and the offense charged against Tighe is one of them, so that if Tighe had been tried and sentenced by the mayor of the village there could be no question as to his jurisdiction.

As we read section 1831, it confers on police justices the same power to hear and determine cases that the mayor has.

We see no reason to limit his jurisdiciton to violations of ordinances of the villages, as claimed ny counsel for Tighe, and at the same time leave offenses against the state to be tried by the mayor. The object of this provision of the law was evidently to enable the mayor, if he chose, to place the burden of trying cases upon some other person of his own choosing. It might be much of a relief, if he was still compelled to try state cases, and it certainly would not be an entire relief.

Why the police justice could not try state cases as well as village cases, we are unable to see, and it does not seem to us that the legislature has attempted by this section to make the distinction. The police justice is given full power to hear and determine violations of the village ordinances, and then in addition he is to have the same powers and perform the same duties in all such cases as are prescribed in the preceding section to be performed by the mayors, thus giving him fully all the jurisdiction of the mayors.

Shay & Oogan, for Plaintiff in Error.

Jordan Thomas, for Tighe.

It seems to us that this view is confirmed by section 1831, Revised Statutes, wherein, after prescribing as to the seal of said justice and names of signing processes, it provides, “and all the provisions of this chapter applicable to the mayor of a village, shall apply to such police justice. ” The-language cannot be limited to offenses against ordinances, but must include, as it sajrs,a]l the provisions of the chapter, and all the provisions of the chapter include the jurisdiction of mayors of offenses against the state.

The judgment of the court of common pleas was, therefore, in our judgment, erroneous, and the same will be reversed, and said cause remanded to said court for further proceedings.


author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan’y Term, 1894.)
    Before Smith, Swing and Cox, J.
    WM. DOLLMAN v. WILLIAM HAEFNER.
    When all the evidence and charge given are brought upon the record by a bill of exceptions, and an erroneous charge is claimed to have been given, a reviewing court may consider whether it was right, to see whether the case was fairly tried, though no exception was taken at the time. But where the trial court fails to charge on a certain point and counsel fails to request the court to charge as to that point, which is not supported by evidence of particular weight, a party can not avail himself of the failure of the court to charge as to that point.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

The original action was brought by Haefner, a minor, by his next friend, to recover damages for personal injury received by him, as was claimed, from the negligent and careless throwing of pieces of slate by the defendant or his servants from the top of a house which they were unroofing, one of the pieces of slate having struck the child, who was on the ground quite a distance away. The jury returned a verdict for the plaintiff for $1,500, and a motion for a new trial was overruled and judgment entered upon the verdict, and a bill of exceptions taken, purporting to contain all of the evidence and the charge of the court given to the jury, and a petition in error is filed seeking the reversal of the judgment.

The principal grounds relied on are, that the court erred in receiving evidence tending to show that prior to the injury of the plaintiff, and during that day, the employes of the defendant and another person on the roof of the house had been throwing pieces of slate and other missies at other persons passing near the house, and that while there was evidence on the part of plaintiff tending to show that the throwing of the tile which injured the plaintiff was willful and intentional, that the court made no reference to this in the charge to the jury, but put the claim of the defendant on the ground of negligence and carelessness, when he should have said to them, that if it was willfully and maliciously done by an employe, not in the line of his duty, and without the knowledge of the employer, the latter would not be liable.

As to those matters it may be said in the first place that no objection or exception whatever was made to the introduction of the evidence referred to, or any exception taken to the charge of the court as given, or any request made that the court charge the jury, as it is now claimed he should have done. It is true that when all of the evidence and the charge given to the jury are brought into the record by a bill of exceptions, and an erroneous charge appears to have been given, the court will, under some circumstances, consider whether it was right, though no exceptions were taken to it at the time. As stated in 32 Ohio St. 495, the reviewing court in such case will, in connection with the evidence, look to such charge, and if there is no reason to believe that the verdict was not the result of erroneous instruction, will reverse the judgment and award a new trial. Or, as held in 29 Ohio St., 452, “if, from a consideration of the whole evidence in connection with the charge, it is reasonable to suppose the jury may have been misled by the charge, and that a different verdict would have been rendered if the jury had been properly instructed, the same thing will be done. And in 42 Ohio St. 318, it is said that the court, under such circumstances, “will examine the whole record to see whether the case was fairly tried.”

This being the law, can the action of the court in these particulars be properly considered by this court, and if wrong, the judgment be reversed on these grounds? In the first place, it may be said that this holding appears to apply only to t.he charge of the court, and it is doubtful whether it. would be extended to cases where evidence is admitted without objection, which, if objected to, should have been excluded. In such case it is practically received by consent of the party, and be ought not afterwards to object to it. But m this case we do not have all of the evidence in the bill of exceptions. There were two exhibits offered in evidence which purport to be attached to the bill, but in fact are not, and this seems to withdraw the case from the application of the rule stated. As to the charge of the court,it may be said that in our judgment the statements of the law there made are accurate and correct. The case was one really in which negligence and carelessness were charged, and though a small girl testified to what would, if true, be considered willful conduct on the part of the employe in throwing this particular tile, it was in conflict with all the other testimony and had no particular weight. But as the charge actually given was correct, and not excepted to, if defendant’s counsel had directed the court to charge the jury as to the effect of a willful injury by the defendant or his employe, he should have asked for it, and not having done so, can not avail himself of the failure of the court to charge upon this point.

Mathews & Cleveland, for Plaintiff in Error.

Bates & Spiegel, for Defendant in Error.

The judgment will be affirmed, with costs, but without penalty.


author: Bentley, J.

text:
    (Sixth Circuit—Wood County, O., Circuit Court
    Oct. Term—1894.)
    Before Bentley, Scribner and Haynes, JJ.
    DEVINE & THOMAS v. JACOB TAYLOR et al.

      Chattel mortgage by partnership.

    Where a chattel mortgage is given by a partnership,the original or a true copy must be filed in every township in which any of the members thereof reside.

      Same — Copy must contain a stvorn statement.

    ■Every true copy of such chattel mortgage so filed must contain the sworn statement of the mortgagee — not a mere copy of the sworn statement as it appears in the original mortgage.

      Oil well under Sec. 3184 R. S. defined.

    An oil well consists of a hole in the ground down through the rock to the valuable mineral, and the drive pipe, casing, and the connecting tubing, necessary to the construction and operation of the well.

      Mechanic’s lien on oil well — Sec. 3184—
    Under Sec. 3184, each person furnishing labor or material in constructing an oil well can obtain a lien on the particular article furnished or worked on.

      Same — See 3188, R. S.

    The construction of an oil well is a “job” under Sec.. 3188 Rev. Stat., and whore liens are obtained by several persons on the same job. under Sec. 3188, they have no priority among each other, but have to prorate.

      Appeal from the Court of Common Pleas of Wood county.
   Bentley, J.

This is an action on an appeal arising upon a foreclosure of mechanic’s lien claimed to have been taken upon a certain well and machinery,and appliances used in the construction of the well, and for operating it. There is also in the case .a party claiming to hold certain of the property in question by virtue of a chattel mortgage. In the court of common pleas a receiver was appointed upon the application of one ■of the defendants, who were a partnership engaged in drilling wells and operating them for the purpose of extracting -and marketing the oil and gas produced therefrom. The casing and other appliances that were used in constructing the well were taken out so far as could be, and with the .engine, derrick and other material and machinery that had been used about the drilling and operating of the wells, were sold by a receiver for the lump sum of nine hundred dollars .($900).

Most of the facts are settled by agreement of the parties, except that testimony was heard in this court as to the comparative value of the various articles thus sold by the receiver, in order that a distribution might be had under the statute, in case it were found that the lien of some of the parties extended to certain kinds of property, and not to ■others, upon which other defendants have liens, etc. So that the principal facts are agreed upon, and the testimony thus offered was not controverted.

It presents, simply, then, questions of law as to what rules should be applied in the distribution of the proceeds of the •sale.

There were two oil wells; one was called No. 1, and the other No. 2. At each a derrick was erected, necessarily preliminary to the drilling of the well, and drive pipe was used in both of these wells, as well as casing, and perhaps tubing. An engine was employed at each of the wells, and one boiler ■used for the operation of both wells.

The plaintiffs, Devine & Thomas, under a contract with the lessees who were having these wells drilled and operated, furnished the material for, and constructed the derrick at No. 2; they were paid a portion of the price therefor, but •claim a balance of $194 due to them on account of the construction of that derrick.

Then another creditor of these lessees,The Buckeye Supply •Co., furnished a portion of the pipe and appliances which wrere used in the construction of this well No. 2, to the amount of $123.65, and they also furnished other machinery and appliances which were used in the operation of this well No. 2. Their claim in all amounts to $559.13; all of it, except $123.65, being on account of the machinery furnished for the operation of the well after its completion.

Another creditor of these lessees, Struthers, Wells & Company, claims a lien upon a large amount of the property by reason of a chattel mortgage which had been given to them by the lessees covering this property, or some portion of it, which chattel mortgage, it is claimed by the other parties, is ineffective on account of the failure of the mortgagees to comply with the statutes in regard to chattel mortgages. Then another party defendant and creditor is one Frank Simpson, a laborer who performed labor in the construction and completion of well No. 2, and in the operation of it by attending to the pumping of the well.

And now these various creditors present their claims here for adjustment, and wish to be paid out of the proceeds of the sale as made by the receiver.

The plaintiff filed an affidavit required in order to perfect a lien under section 3184 of the Revised Statutes as amended in 89 Ohio Laws, 373.

The Buckeye Supply Company also filed its affidavit under that statute. Frank Simpson, the laborer, filed his affidavit under section 3206 a, but he also claims that he has a lien under the provisions of section 3184.

Struthers, Wells & Company’s claim rests wholly upon the validity of their chattel mortgage, and before proceeding with the disposition of tho other claims, we will speak of the chattel mortgage.

The lessees who gave this chattel mortgage were partners. They were Simpson Brothers and a man by the name of White. Simpson Brothers resided in Portage township, of this county, and White resided in the township where this court house now is, being Plain township.

At the time the chattel mortgage was made, the office of county recorder was in another part of the village of Bowling Green, and was within the township of Center. Some time after the chattel mortgage was filed, on account of the destruction of the old court house to make room for the new one,the county offices were removed to this building in Plain township. This chattel mortgage was filed originally in the recorder’s office of this county, it, then being in Center township. At that time no one of the mortgagors resided in Center township. The mortgagees, upon filing this instrument with tho county recorder as I have stated, had a copy made of the entire mortgage including the affidavit and verification, and filed it with the township clerk of Portage township, but filed no original paper there, neither chattel mortgage, nor affidavit of verification.

The mortgagees took no further steps than I have indicated, but they claim that when the office of county recorder was moved, for the reason I have stated, over into Plain township, where Mr. White resided, both at the time the cháttel mortgage was given and when the recorder’s office was moved, that that gave some validity to the chattel mortgage.

After investigating this matter and the statute regarding chattel mortgages, we do not see how we can uphold the claims of these mortgagees.

In a case in the 41 Ohio St., 598,- it is said that a chattel mortgage given by partners, in order to have effect, must be filed in each township where any of the partners reside. So that, in order to perfect a lien, it was necessary to file the chattel mortgage in Portage and Plain townships, because the partners resided, respectively, in these two townships.

The chattel mortgage was not'filed in either of these two townships, and what was filed in Portage township ivas a mere copy,and ineffective to creaie alien, as held in the case in the 49 Ohio St., 548. So that, whether the removal of the county recorder’s office subsequently to this toivnhips where Mr. White resided, would under the circumstances effect anything or not,it was not sufficient to give validity to this chattel mortgage, and as against creditors, it would be wholly inoperative and invalid.

These other parties are creditors of these mortgagors, and while some of them have not reduced their claims to judgments. yetive think in a proceeding of this kind their claims must be treated as claims of creditors against this propertjn It is not the person of the creditor, to be sure, which is to be considered in determining whether a chattel mortgage is or is not valid as against his claim. Chattel mortgages, under tbe statute, are invalid under certain circumstances, hut that means as against the legal process caused to be issued by creditors to subject the property, whether by execution, or in any other form in which the law authorizes creditors to-proceed; and; ivhilesomeof these creditors have not attached the property or levied upon if, and while the receiver was appointed, notupon the application of these lien holders, yet we think that the action of the court appointing a receiver necessarily subjected the whole property to the jurisdiction of the court to be distributed; and necessarily these creditors, all of them, became interested in the proceeding. They could not thereafter follow the property by any process of their own; and while they might not in all cases be strictly parties to the action, yet they were interested in it to such an extent that we regard the whole proceeding as a proceeding to subject the property to the claims of creditors, and therefore the law making chattel mortgages in certain cases invalid as against creditors, applies to ail lienholders; so that Struthers, Weils & Company are merely general creditors, having this claim against the lessees, and are to participate in the fund arising from the sale simply as general creditors.

I call special attention to section 3184 of the Revised Statutes, in order to determine the respective rights of these other parties. The section reads as follows: “A person who performs labor, or furnishes machinery for constructing, altering and repairing * * * . or for the digging, drilling or boring, operating, completing or reparing of any gas well, oil well, or any other well, by virtue of a contract with the rwner or his authorized agent, shall have a lien to secure the payment of the same upon such gas well, oil well, or any other well, and upon the material and machinery so furnished, and upon the interest of the owner of the lot or land on which the same may stand, or to which it may be removed.”

That provides that such a person shall have a lien upon the well in the first place. Second, upon the machinery or articles which he shall furnish for the purpose. Third, upon the interest of the owner of the lands upon which the well is situated.

Now, what constitutes an oil well? Because it is evident that the statute does not mean to include in the general term ‘‘oil well” everything that may be used in connection with its construction or operation, because it gives a lien upon the well by reason of furnishing machinery, and upon the machinery. If it gives necessarily a lien upon the machinery used in and about, a well as a part and parcel of the well, it would have been unnecessary to provide that the person furnishing should have a lien upon the machinery itself. So we think that under this statute the three things that a lien may be obtained upon are as I have-stated.

Now, a well consists, as we understand, of a hole in the ground for one thing, through the rock, and down perhaps to the valuable mineral, and necessarily in its construction, and as a part of the construction itself, drive pipe is used which is inserted in the ground and left there as long as the well is in use. Then casing is used, and goes down still further into the rock, and becomes, as we think, under the provisions of the statute, a part of the well upon which a lien may be- obtained under the general term “well”; and from the best light we have as to the manner of connecting tubing with the well, that being iron pipe fastened by means of a packer in the well, and is a necessary part of its construction, though occasionlly removed, and removable, still, liberally construing the statute, that may be said to be a part ■of the oil well, and so far as we are advised, these articles are all that do comprise an oil well.

The derrick, to be sure, is necessary for its construction, but it is not fastened to the well. It may be used for one well, and then taken down and used for another well, and it is used ordinarily in the operation of a well, but it is such a thing as is ordinarily furnished by a different man from the man or men who furnish the other appliances about the well.

The statute gives a lien upon the articles which a particular person furnishes, and in this case these plaintiffs furnished the labor and material for the derrick, and obtained lien ■under section 3184, and we think they obtained a lien upon that derrick- That is all the plaintiffs did furnish, that derrick — and they obtained a lien upon it. They furnished it, however, in the operation of the drilling of the well, as a necessary part of it, and obtained a lien under section 3184 not only upon the derrick, but upon the well; that is, upon those appliances which we think constitute a part of the well itself; and the rest of the property that is mentioned in this case, we think, they did not get any specific lien upon.

It is said in one section of the statute, 3188, “if several liens be obtained by several persons on the same job in the manner prescribed by the foregoing section, they shall have no priority among themselves.” We think this is a “job”, and the statute is to be construed as providing that the plaintiffs and the parties, the Buckeye Supply Company,are to prorate upon that part of the property which constituted the well proper. The Buckeye Supply Company furnished part, and they are to be let in upon the job of constructing the well. The rost of this machinery was furnished for the operation of this well, and they are given a lien upon the property which is thus used in the operation of the well, and which they furnished. As to that property other than the well proper and the derrick, their lien is superior to any claim of the plaintiffs.

We are unable to see that either of these parties obtained' anything under the third subdivision that I have spoken about, viz: Upon the land — the leasehold interest of these parties in the land itself, or any interest in it was not sold. There is nothing in the hands of the receiver as the proceeds of the leasehold interest or land.

We do not think they could obtain a lien upon No. 1 well, and the articles used in connection with it, under the provisions of the statute, as constituting a leasehold interest of' the parties in the land itself.

Now, Simpson was a laborer employed in pumping the-well. He did not file the affidavit required by section 3184, and we are unable to see that he obtained any lien under that section.

He thought, and he thought correctly, that his claim must be under section 8206a. Section 3206a provides that the liens for labor, there provided for, shall be inferior and subject to whatever liens are taken out under section 3184, and this is a general lien upon all the real property of his employer. The section provides that such person performing manual labor shall have a lien upon the real property,which is superior to certain liens, etc. He filed the affidavit under that section,and obtained whatever he has under it. While there was no real property of any value, the proceeds on which are to be distributed in this action, there is a provision that when property is sold by a receiver, and its proceeds are distributed, tho laborers who have been so engaged for three months next preceding the appointment of the receiver shall be first paid out of the proceeds before general creditors, etc. He comes under this clause, and so far as his claim is concerned, we think he obtained a lien in preference to the other general creditors who appear in this case. As the parties are substantially one as regards the facts in the case, we need not figure out the amount, leaving that to the attorneys. But there is a general property to be distributed, the proceeds of No. 1 well and its appliances, and there may be some of the properly that the receiver has sold, and as to> which The Buckeye Supply Company have no lien in the premises as I have stated them, and if so, that is general property subject to the general claims of creditors, except that out of it first should be paid the claim of Simpson, the laborer.

Baldwin & Harrington, for Plaintiffs.

Ira Q. Taber and W. W. Chapman, for Defendants.

I believe there has been no particular amount of costs made from the conflict of liens here. There has been a struggle in the application of the law, and we think that under the’ circumstances the whole fund should bear the burden of the costs of the action. Those should be paid first, and then the balance of the fund distributed as I have indicated.


text:
    (First Circuit—Hamilton Co, O., Circuit Court
    Jan’y Term, 1894.)
    Before Smith, Swing and Cox, JJ
    JOHN WEBB Jr., v. PHILLIP ROETINGER, ADMINISTRATOR.

      Administrator — Life insurance money coming into his hands after appointment — Liability of sureties on bond.

    The proceeds of a life insurance policy which came into the hands of the administrator after his appointment, become assets of the estate in his hands, and on his failure to account for the same his sureties on his bond become liable therefor to the extent of the penalty of the bond.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

In this ease we are of the opinion that Roettinger, as administrator de bonis non of the estate of Mrs. Rebecca J. Mack, deceased, was authorized to bring an action upon the bond which had previously been given by James Mack, as administrator of the estate of Mrs. Mack (and who, as administrator of the estate of his wife, had received a large sum of money belonging to her estate, but who had died without filing any account as such administrator, with a large sum of money in his hands belonging to such estate), and to recover from his estate and from the sureties on his bonds, for a breach of the conditions thereof, a judgment for the amount belonging to the estate in the hands of said James Mack, at the time of his death, (less any proper credits to him) with interest thereon from the time that proper demand was made therefor by the administrator de bonis non; the amount of the judgment not to exceed the penalty of the bond, with interest on the amount of the penalty from the time of the demand until the rendition of the judgment, and that is this case, although the fact is, that when the suit was brought, there were no outstanding debts against such estate, and the amount found to have been in the hands of the late administrator would be payable, after payment of the costs and expenses of administration to the distributees of the estate of Mrs. Mack. The fact that a part of the amount found to be in the hands of the late administrator at the time of his death was the proceeds of a policy of insurance on the life of Mrs. Mack, taken out by her in her lifetime, and which, by the terms of the policy, if not paid to her in her lifetime, was to be paid to her executors, administrators or assigns, and which, in fact, was received by her administrator after her death, would not alter the case. This money, when so received by the administrator, became assets in his hands, and was covered by the bond, and a failure by him to pay it to the persons entitled thereto was unfaithful administration, and a breach of the bond.

Wright & Wright, and Burch & Johnson for the Sureties.

Robert S. Fulton, for present Administrator.

We further find that there was no release of the sureties by the distributees on the facts set out in the bill of exceptions,and that the court did not err in overruling the motion for a new trial, or in entering the judgment in the case which was entered.

The judgment will, therefore, be affirmed.


text:
    (First Circuit—Hamilton Co., O, Circuit Court
    Sept. Term, 1894.)
    Before Smith, Swing and Cox, JJ.
    THE STATE OF OHIO ex rel. C. L. METZ et al. v. LUKE A. STALEY et al., COMMISSIONERS OF HAMILTON COUNTY, AND JOHN HAGERTY, AUDITOR OF SAID COUNTY.

      Act for the improvement of Columbia Ave., 90 O. L. 211, mandatory.

    1. The provision for levying taxes for a certain improvement, contained in an act passed by the General Assembly of Ohio, found in vol. 90 of the Ohio Local Laws, page 217, is mandatory, and not directory, on the county commissioners, as to the time when such levy for taxes is to be made, and the levy for the first installment of said taxes should be made in the year 1893.

      Bonds need not be issued before purchaser tenders payment—
    2. Before such county commissioners can be compelled to issue the bonds provided for by said act, there must be a tender of payment for such bonds..
    Mandamus.
   Smith, J.

This case has been presented to us on a demurrer filed to the petition, by the defendants.

The petition, in substance, avers that the relators are citizens and taxpayers of Hamilton county, owning lots and lands therein, liable to be assessed for the improvement of Columbia avenue. That on September 12, 1893, the general assembly passed an act for the improvement of said avenue; that the commissioners of Hamilton county, on May 9, 1893, duly appointed three viewers'to proceed under said act, who, in accordance therewith, a’ssessed damages to the owners of land on such improvement, and estimated'the cost of such improvement, and their report was approved by the commissioners.

That thereafter, for the purpose of raising the money necessary'to meet the expenses of said improvement, and for the purpose of paying the damages reported by the viewers, the commissioners passed a resolution directing the issue of $14,000 of the bonds of Hamilton county, to pay the damages so awarded by the viewers;- said bonds were to be payable in five years from date, bearing interest at five per cent, per annum, payable semi-annually, and they, by resolution, directed that advertisement be forthwith made for the sale thereof, in pursuance of law. Said commissioners also had plans and specifications for such improvement prepared by the county engineer, which they approved and adopted, and advertised for bids for the improvement of said avenue under said plans and specifications and under said act. That after-wards they advertised for bids for said bonds, and Irwin, Ellis & Ballman made the highest bids and in all respects in accordance with the law, and their bid was duly accepted, and the $14,000 of bonds were duly awarded to said bidders by the commissioners, and such action was duly approved by the board of control of said county.

That demand has been made upon said defendants, commissioners, and Hagerty, auditor of the county, to sign the bonds, and deliver them to said bidders, that the damages assessed may be paid, and the improvement of the avenue proceed. But each one of said defendants refused to do so. That said commissioners have refused, though requested to do so, to make a levy or fix a rate in any amount whatever on the duplicate for the year 1893, so as to provide for the payment of the bonds aforesaid, or for raising the money necessary to meet the expenses of the improvement of said Columbia avenue.

The relators further aver that the cost of said improvement, including damages for the right of way, will be $90,000, and to raise the one-half of the same, together with interest for the bonds that may be issued, will require a levy of one-twenty-fifth of a mill upon the dollar for the year 1898, as required by said act.

The prayer is that a writ of mandamus issue, commanding the defendants to sign said bonds,and commanding the commissioners to fix a rate and make a levy on the grand levy of taxes,on all taxable property of said county of Hamilton,, on the duplicate for the year 1898, of a tax of one-twenty-fifth of a millón the dollar,for the construction and improvement of said avenue.

Do the averments of this petition make a good cause of action and entitle the relators to the relief asked by them,or any part of it,against the defendants, or any of them? This raises the question of the construction which should be placed on several of the provisions of the act under consideration, which is found on page 217,and part of the Local Laws for 1898, vol. 90.

In the first place, we may say that whatever may be our views of the propriety or expediency, or it may be as to the-vicious character,it is claimed to be, of legislation like this, which has become so common within the past few years, is in a case of this kind wholly immaterial. If the general assembly, under the constitution, has a right to pass a law like this, the courts have no right to interfere with its proper execution,but when called upon,must aid in its enforcement. Having the power, the legislature must decide as to its exercise. And we understand it to be conceded by counsel for the defendants, and to have been decided by the court by whose judgments we are bound, that the'general assembly has the power to pass acts of the character of the one under consideration; and the questions for our consideration are, what has that body directed to be done, and have the officers upon whom the statute has imposed duties performed them?

It is further conceded by counsel for the defendants that by this statute the county commissioners are required, and are bound to proceed and construct this improvement in conformity with the provisions thereof; and the petition shows that they have diligently and promptly proceeded thereunder, and duly appointed three disinterested freeholders of the county as viewers, and have given to them and to the public the notice required by section 8 of the act, and that such viewers proceeded to assess and determine the damages sustained by persons through whose premises the improvement is to be made, and estimated the cost and expense thereof, and reported the same to the commissioners, who approved the same. It does not appear what such estimate, was, though the relators in their petition aver that the cost of the improvement will be $90,000. It further appears that the commissioners resolved to issue $14,000 of the bonds of the county, payable five years from the date thereof, to meet the damages assessed, and the necessary expenses under the act, and advertised for bidders therefor, and accepted the lowest bid, but have declined, on demand made (but by whom does not appear), to sign said bonds and deliver them to the successful bidders; nor does it appear that such bidders ever tendered the money bid therefor, or are ready and willing to accept and pay for them. It also appears that the commissioners have had plans and specifications made for said improvement, and have advertised for bids for the doing of said work, but that the commissioners have refused to make a levy, or fix a rate in any amount whatever for a tax for this improvement, on the duplicate for the year 1893, and the question is thus raised, (for it is to be conceded that the time when this was to be done, if at all,has passed),whether it was obligatory on the county commissioners to do that, and for any particular amount.

' It is the claim of the counsel for the officers that it is not. That section 7 of the act,which provides that“the said commissioners, in addition to their other powers of taxation,are hereby authorized and required to collect on the grand levy of taxes on all the taxable property of said county on the duplicate for the year 1898, a tax of such proportion of a mill on the dollar, and for the four following years asimilar tax each and every year of such proportion of a mill on the dollar as will raise a fund sufficient to pay one-half of the total cost and expense of said improvement, together with the interest on any bonds issued by the commissioners under the provisions of this act, ”is merely directory as to the time when such levy shall be made, and is not mandatory in the legal sense of that word, and that while the commissioners must levy the tax at some time,so as to provide funds to pay for the cost of the improvement, that no part of it must go on the duplicate of 1893, or that such levy might not be made until 1897, so that it is levied and collected in time to provide for the payment of the bonds to be issued to raise money to pay for the cost and expense of the improvement,which it is said are to be payable in five years from the issue thereof.

We are unable to agree with this view. It seems to us perfectly clear, in the language of the statute itself, and viewed in the light of the authorities, and by the decisions of the Supreme Court in 17 Ohio St. 608 and 35 Ohio St. 458, that while this provision is not mandatory in tne sense that if it be disregarded by the commissioners, and no levy be made in 1893, that the whole law would fall, and that no further steps under the same could legally be taken, yet it was obligatory upon the commissioners to comply with this plain and express provision of the statute, and that if they fail to do so, that a court, on proper application being made, at a time when the duty can still be performed in obedience to the law, is bound to require it to be done. This is the office of a writ of manaamus. As defined in section 6741, Revised Statutes, it “is a writ issued in the name of the state to an inferior tribunal, corporation, board or person, commanding the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station”; and by the express or positive language of this law, it is made the duty of the commissioners to levy on the duplicate of 1893,some part of the tax necessary to raise the money to pay for this improvement.

But the great difficulty in the case is to determine the ■ amouunt or rate which must be levied on the duplicate for 1893, and for each of the four following, years. It must be conceded, we think, that the statute in several of its parts is most unskillfully drawn, and it is difficult to decide, with . •any certainty, what the real intention of the legislature, in this respect, was. But, in our opinion, it was that the tax was to be levied in five equal annual installments — the first on the duplicate of 1893, and the others were to be of substantially the same amount — and each to be on such a part or portion (not proportion) of a mill on the dollar as would in the several years produce the same amount as nearly as can be done, aud the amount produced by said levies in the aggregate to be “sufficient to pay one-half of the toual cost and expense of improvement, together with the interest on any bonds issued by the commissioners,under the provisions of this act:”and that the commissioners are further to assess upon the lots and lands liable thereto, “exclusive of any improvements thereon, and in proportion to the average thereof, the remaining one-half of the cost and expense of said improvement,together with the interest on any bonds issued by the commissioners for the same;” and that “said assessments shall be divided into five equal annual payments,” and though there is not express statement that it shall be so, we think the obvious intent of the legislature was that the assessment of the first installment thereof should be made in 1898.

Matthews & Cleveland ana W. A. Hicks, for the Relators..

Spiegel, Bromwell & Foraker, for the Demurrer.

It is also provided that the commissioners “were required to issue the bonds of the county, payable in installments, or at intervals, not exceeding in all, the period of five years.” We incline to the opinion that it was the purpose of this legislation to have the bonds so issued that the tax and assessments as collected might be applied to the payment of the bonds then coming due. ■

We are further of the opinion that as no further time is fixed when the bonds or any part of them shall be paid, and the relators are not averred to have any legal interest in this question, and do not allege any defect on the part of the commissioners in the issue thereof, there being nothing to show that payment for the bonds had been tendered, or that the bidders are ready and willing to take and pay for them, the petition states no cause of action in this respect against any of the defendants. But, as to the levy of the tax for 1898, we think it does state a good cause of action against the commissioners, and the demurrer thereto will therefore-■be overruled.


text:
    (First Circuit—Hamilton Co., O, Circuit Court
    Sept. Term, 1894.)
    Before Smith Swing and Cox, JJ.
    THOMAS CURRY v. CITY OF CINCINNATI.

      Filled up excavations adjoining street — Duty of city and property owner to prevent washouts—
    1. In an action against a municipality for damages alleged to have-been caused by the negligence of the municipality in permitting water from the gutters of its streets to wash earth into certain-excavations on the plaintiff’s premises, it appeared that the plaintiff made such excavations next to and adjoining certain premises-that had been formerly used as a stone quarry, where stone had been quarried and the earth subsequently filled in to support the adjoining premises. Held, That plaintiff, in making such excavations, was bound to provide for maintaining the soil that had been so filled in as it then was, and the municipality was not bound to'take any more care of this soil by reason of plaintiff’s having made such excavations than it was prior thereto, and that in the absence of negligence on the part of the municipality, plaintiff could not recover.

      Charge of court to be talcen as a whole—
    2. The charge of a trial court to a jury should be read and considered as a whole and all the parts thereof harmonized, if possible ; and it will not do to isolate one or more clauses of a charge and give to them independent meanings, when, if taken in connection with other parts of the charge, they would have another meaning.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

This was an action brought m the court of common pleas of Hamilton county for damages alleged to have been caused by the negligence of said city in permitting water and earth to flow upon plaintiffs property by reason of which great damage was done to plaintiff’s buildings. On the trial in the court of common pleas the jury returned a verdict for the city,and this action is prosecuted in this court to reverse the verdict and judgment of that court.

According to the evidence, some twenty-two years ago, Dodd and others, being then the owners of the land in question, laid it out into lots and construcuted a street on which the lots abutted, viz., Alpine Place. It also appears from the evidence that a certain triangular piece of ground, lying next to plaintiff’s ground, and between the streets, Alpine Place and Nassau streets, was used as a stone quarry. The stone was removed, and afterwards, it being found necessary for the support of Alpine Place,the excavation was refilled with earth. After the street was built it was turned over to the city.

The plaintiff purchased this lot about ten years ago, and when the street and this triangular piece of ground was in the condition above described. The plaintiff’s land, or lot, fronted on Nassau street, 50 or 75 feet, and ran back to Alpine Place,90 or 140 feet,some part being sold to Mr. Baker. Afterwards, plaintiff constructed two stables and carriage houses cn the back part of this lot adjoining or near to Alpine Place. In constructing these stables he excavated down some twenty-five or thirty feet. Afterwards the floods came and washed the ground and the excavations now filled up by the street and the earth from the triangular strip, coming down and filling up the excavation, and this is the damage complained of. The claim of plaintiff was that it was caused by the negligence of the city in not protecting plaintiff’s property from the loose earth filled in on the triangular piece, and in not properly taking care of the water that flows along the gutters in Alpine Place. The city claimed that the proximate cause of the injury was the excavation made by the plaintiff; that plaintiff had removed the natural support from the soil,and had not properly provided against the earth which would naturally fall into the excavation.

Under these circumstances, what were the natural rights of the parties? Of course,whoever was negligent was liable for the damage. If the city permitted the gutters to get out of repair, and remain that way, and the water flowing over the gutters washed the dirt on plaintiff’s stable and wrecked it, the city would be liable for its negligence — would be the proximate cause. On the other hand, if this did not occur, and the damage was caused by the plaintiff’s making an improper excavation under the circumstances as regards the soil as it was when he made it — the city would not be liable. The question was raised in argument as to the rights of the parties as to the triangular piece of ground, the earth from which fell into the excavation made by this plaintiff.

When plaintiff bought his lot this piece of ground wasjn the condition that it was in when the damage occurred. The stone had been quarried and the earth filled in. In making this excavation he was bound to provide against the earth as it was then, and the city was not bound to take any more care of this soil by reason of the plaintiff’s having made his excavation than it did before. As a matter, of course, the city was bound, in using this piece of ground, to use it in such a way as the soil required as it then was. In both cases the plaintiff and the defendant could not act towards this ground as it was originally, with a rock foundation, but must' treat it as earth filled in. When the plaintiff bought this lot he knew or should have known that the rock had been removed, and he bought his lot subject to the known condition of this lot adjoining his. The question, then, for the jury, was, did the city negligently permit the water to flow over the gutters of Alpine Place and this triangular piece of ground onto the defendant by reason of which this damage was done, or was the damage done by reason of the negligent way in which plaintiff constructed his buildings and excavation?

It was claimed in argument,and this was the main ground of error alleged, that the court did not properly charge the jury, and that the charge given was not the law.

We see nothing in the charge inconsistent with the view of the rights of the parties above expressed, unless it be as to the second special charge asked by the defendant and given by the court, which special charge was as follows: “If the damage would not have occurred but for the excavations made by Curry, taking away the lateral support of the city’s property, then there can be no recovery against the city. ” Standing alone, as an independent proposition of law, we are of the opinion that this would not be a correct statement of‘the law, as applicable to the case on trial; but the court had just said to the jury, “now, if the city negligently allowed its water to run, as claimed by the plaintiff here in this case, and this trouble is traceable to the water running down Alpine Place, over onto these premises, causing this injury, why the city would be liable for whatever trouble grows out of such negligence. ” The charge should be read as a whole, and the parts harmonized,if possible. It will not do to fish out a clause here and another there in a charge and give them an independent meaning, when, if taken in connection with other parts of the charge, they would have a different meaning. So in this case we are of the opinion that this second clause or charge given must be taken in connection with the other parts of the charge, and if so, we do not see how the jury could have been misled, or that the law was incorrectly given.

Mathews & Cleveland, for Plaintiffs in Error.

Corporation Counsel, Contra.

We are therefore of the opinion that there is not error in the judgment of the court of common pleas, and the same will be affirmed.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas County,Ohio, Circuit Court
    Sept. Term, 1894.)
    Before Haynes, Scribner and King, JJ.
    JOSEPH KEIP v. THE LELAND & SMITH CO.

      Action for foreclosure of mortgage, etc. (No law question apparent from report.)

    Error to the Court of Common Pleas of Lucas County.
   Haynes, J.

This action was brought to recover upon certain notes,and for the foreclosure of a mortgage that was given for the security of the debt. The record stands before us somewhat in this condition: That action was founded on five promissory notes, each given for the sum of $100. While they were-not stated as causes of action separately, yet they were .numbered 1, 2, 3, 4 and 5. The notes were to draw interest, payable annually. Four of these notes had become due before the suit was commenced; the fifth note was not yet due. The sixth cause of action, setting forth the mortgage, shows .and avers that to secure the payment of these notes, Joseph Keip, and Joseph Keip alone, executed a mortgage upon his interest in a certain lot and part of another lot situated in the city of Toledo. It avers that Mary Keip is the wife of .Joseph Keip, and that she has, or claims to have, some interest by way cf dower, and avers that whatever right she has, the plaintiff is informed and believes, is subject to the rights of this mortgagee, and leaves the matter standing in ■■substantially that position. This mortgage was made about 1887 and 1888. A woman by the name of Jane Simons is made a party defendant. Jane Simons sets up that in 1891 ¡she received from Catherine Keip, who is not made a party to this suit,a note made by Catherine Keip for a certain sum of money — two or three hundred dollars, I think — payable in five years therefrom, and that to secure the payment of that note, Joseph Keip and his wife, Mary Khip,executed a rnort.gage upon the interest of Joseph Keip on the lot mentioned in plaintiff’s petition, but does not include part of the lot, ■and prays that the interest of Mary be protected. No other pleadings were filed in the case. A decree was taken m which it was recited that the case came on to be heard on the evidence offered bythe plaintiff, and was argued by counsel, ■ and thereupon the court proceeded to render a judgment, which found that the whole amount wTas due upon these notes. I should have said.in passing, that in the cause of action setting up the mortgage as it stated that there was a provision in the mortgage that if the interest was not paid as it fell due, or if the notes were not paid when they matured, then that the whole amountsbould become due,and that the mortgagee might proceed to foreclose his mortgage. The decree found that the whole amount was due upon the notes and the interest on them, amounting to a little over $700, .■and then found that the interest of Joseph Keip in the land was one-sixth of the property, subject to the life-estate of ’Catherine Keip, and ordered that if payment was not made within a certain time the one-sixth interest of Joseph Keip in the premises should be sold, subject -to the life'estate of ;Cathering Keip; and then found that Mary Keip, the wife of Joseph Keip, had no interest whatever in the premises by -way of dower.

J. K. Hamilton, for Plaintiff in Error.

Defendant says that he does not care anything about the judgment — that Keip is insolvent; therefore the judgment for the amount due on the notes will be reversed. Plaintiff below has leave to withdraw his prayer for^personal judgment. li'tlSSj *:•]

Decree for personal judgment will be reversed, a finding of the amount due will be made, and the judgment in regard to the foreclosure and sale of the property will be affirmed. Costs to be divided. The case will be remanded for further proceedings.


author: Shauck, J.

text:
    (First Circuit, Hamilton County, O., Circuit Court,
    Jan. Term, 1894.)
    Before Smith, Swing and Shauck JJ.
    (Judge Shauck of the second circuit, taking the place of Judge Cox.)
    ROTHCHILD’S SONS’ CO. v. THE BRUNSWICK-BALKE-COLLENDER CO.

      Injunction against advertisement of articles infringing upon plaintiff’s property rights in such artieles,and generally misrepresenting.— Where a party can prove injury through the advertisement of a competitor, offering articles for sale in which plaintiff has property rights, he is entitled to an injunction. But as against mere misrepresentations, although gross lies, but as to which plaintiff fails to show actual injury, no injunction will be granted.
    Error to the Superior Court of Cincinnati.
   Shauck, J.

A majority of the Court think the judgment of the Superior Court should be modified to the extent that the Rothschild’s Sons’ Company should be restrained from publishing the matter relating to the Brilliant Novelty Billiard Table on page 88 of their catalogue. Witness Friend, at page 47 of bill, testified that to his personal knowledge he has seen tables of this style and design, with the name of Rothschild’s Sons’ Company on them, which were not the tables of the defendant in error, but were made by other manufacturers in imitation of the defendants’ table. This, we think, is, clear proof of an injury to the property right of defendants. It shows the Rothschild’s Sons’ Company to have sold tables representing them to be the Brilliant Novelty Table, which was the defendants’ table, which tables were not made by the defendants, but which were made in imitation thereof by the Rothschilds. Thus the purchasers were deceived and the defendants injured,and this may have been brought about by the advertisements referred to. It was calculated to do it.

As to the other matters enjoined, the proof wholly fails to show any facts corresponding with the above.

As to the advertisement on page 80,where they g.ive a cut of Hannah & Hogg’s saloon in Chicago, it appears from the evidence of Mr. Hogg that it bears no resemblance to their saloon, the tables of which were made by the defendants.

There is not a particle of evidence that tends to show that any injury has been,or will be,caused defendants by this advertisement. It is true that it is apiece of bare-faced and wonderful lying on the part of Rothschild’s Sons’ & Co.; but lying does not always benefit the one engaged in it,or injure the one intended to be injured; and, as we understand the law to be, there must be something more shown, before the party is entitled to relief, than mere lying being indulged in.

To the same effect is the evidence in regard to the Manhattan Table,on page 88. There is no evidence that plaintiffs in error are selling, or offering to sell, tables made by them in imitation of defendants’ table. They claim to be the originators of this table. The evidence clearly shows this to be a miserable lie, made without reason or excuse. The property right of the defendants in this table is to prevent others from selling or offering to sell tables under this name or design, which in fact were not made by defendants, but 'which were made by others in imitation thereof, but it does not embrace the right to prevent any one from lying about it by means of an injunction.

The same may be said in regard to the advertisement on page 84, in regard to Simons cloth. They claim to import all the genuine Simons cloth imported into this country, whereas the evidence shows that they did not import any. Neither do the defendants; but the evidence shows that the defendants buy ninety per cent, of all that is imported into this country. It seems to us that this is a harmful lie in the eyes of the law,as far as the defendants are concerned, although a reckless and senseless one to tell.

To the same effect are the advertisements of the Eclipse lamps and cushions. They are simply lies, made out of whole cloth, and for no apparent purpose, for the evidence fails to show that the plaintiffs are selling, have sold, or are about to sell, any of these articles as the defendants’, when in fact they are not.

D. Heinsheimer and Wm. L. Avery, for Plaintiff in Error.

Howard Douglass and Kittredge, Wilby & Simmons, for the Brunswick-Balke-Collender Co.

Besides, the evidence of defendant is to the effect that they have virtually no competition in this country in their line of business.

Only one of the witnesses runs a billiard table bearing the mark of the plaintiffs, and all of the billiard experts who are familiar with billiard, tables and makers, never heard of the plaintiffs, except as disclosed to them by the production of the plaintiffs’ advertisement. No damage seems to have resulted to defendants’ business, and it does not seem to us very probable that it will through such shameless lying as this.

Judge Shauck thinks the judgment should si and as it is.