text:
    VALIDITY OF THE ACT IN AID OF THE BLIND.
    [Circuit Court of Lucas County.]
    David T. Davies, Jr., Auditor of Lucas County, Ohio, v. The State of Ohio, ex rel James L. Boyles.
    Decided, July 8, 1905.

      Constitutional Law — Act Providing Allowances for the Blind — Not Special Legislation — Not Unjust Discrimination — Not Unreasonable— Not a Talcing of Property for Private Use — Legislative Power, State and Federal.

    1. The act found in 97 O. L., 392, providing for the payment to certain worthy blind persons of not more -than twenty-five dollars quarterly out of the county poor or general expense fund, does not contravene the Ohio Constitution because it provides for an allowance to a special class of indigent people, nor because it discriminates among persons of that class, nor because of the limitation as to residence, nor because it is unreasonable, or capricious, or an unjustifiable act of paternalism on the part of the Legislature.
    2. Neither does this act violate the provision of the federal Constitution against the taking of private property by taxation for private purposes, but on the contrary, a public purpose is thereby sub-served, and it is in line with other laws which have received judicial sanction.
    3. All legislative power being broadly conferred by the state Constitution, it is within the general legislative power of the state to make provision for any legitimate class, recognized as such either by the Constitution itself, or by a sense of justice and the common reason of the people of the state.
    Wildman, J.; Haynes, J., and Parker, J., concur.
   This is an action in error, brought to reverse the judgment of the court of common pleas in overruling the demurrer of the plaintiff in error — the defendant below — and in rendering judgment against the plaintiff in error in favor of the defendant in error. The proceeding below, brought on the relation of James L. Boyles, by the state, against the auditor of Lucas county, Ohio, was for mandamus to compel the defendant to obey the provisions of a certain act providing for the payment.to blind persons of an allowance' from the public funds of $25 quarterly. The only question presented for the consideration of this court is as to the constitutionality of the law providing for this allowance. The statute is found in 97 O. L., p. 392, and its provisions are, substantially and so far as concerns the questions which here arise, as follows:

‘ ‘ That it shall be the duty of every county to contribute such sum or sums of money from the poor or general expense fund toward the- support of every worthy blind person free from vicious habits, as hereinafter provided.

“That all male blind persons over the age of twenty-one years, and all female blind persons over the age of eighteen years, who are declared blind in the manner hereinafter set forth, and have no property or means with Avhich to support 'themselves, shall be entitled to, and receive, not more than twenty-five dollars per capita quarterly, and that the probate judge shall authorize the auditor to issue warrants for the amounts due such persons.”

The statute further provides:

“The said blind persons must be bona 'fide residents of the state of Ohio for five years, and in their respective county one year. ”

There are other provisions in the statute- for the purpose of carrying out the general ones ¡which I have recited, but it is unnecessary to read them. The act is attacked upon the ground that it violates certain provisions of the Constitution of the United States, and also certain provisions of the Constitution of the state of Ohio. The special sections of the federal Constitution are Section 2 of Article IV; Article V — one clause in it — and Section 1 of Article XIV; and as to the Ohio Constitution, the Bill of Rights, Section 2, and tire 26th Section of Article II.

It is. urged that not only does this act provide an allowance for one spefeial class of indigent people, but that it unjustly discriminates among persons of that class; it sets off the blind as recipients of the public bounty and,then among the blind excludes from the benefits of the act those AArho are unworthy, or of vicious h'abits, and those who have not been residents of the state for five years, or wbo have not been residents of the county for one year, and it excludes all who are not adults.

The defendant, on the other hand, insists that not only does the act not violate the state Constitution, but that it has express warrant to sustain it in Section 1 of Article VII of the state Constitution, or, if that section is not broad enough to justify the Legislature in the .enactment complained of, that the Legislature, under its general police power, might have made the same enactment.

Without spending very much time upon the claims of the plaintiff in error, that the law makes an unjust discrimination among classes, it is sufficient to say that the blind have been from time immemorial, perhaps, recognized as a class entitled, not only to the sympathy of those not so afflicted, but also to some degree of aid to be accorded by the public, which is a recognition of the Biblical maxim that “The strong should bear the infirmities of the weak.” It is impossible for human beings who are strong and who do not need such aid to shut their eyes to the infirmities of the weak, or to turn coldly away from them and say they will not give aid.

The question, of course, will arise in all such ca'ses as to whether the allowance is a reasonable one or not; whether it is capricious or arbitrary; whether it is an act of unjustifiable paternalism on the part of the Legislature, or whether, being not capricious or unreasonable, it finds warrant in the sense of reasonable people that the aid should be given. Nor does it seem to us that the act is amenable' to criticism because it makes some discrimination among the blind, by withholding its benefit from those of vicious habits, or found to be unworthy, or who have not had the required residence in the state or county, or who are not adults. There is another provision made by the Legislature in Ohio for the benefit of blind persons who have not reached the age of majority. We have institutions provided for their education, in order that they may be better able to maintain and support themselves in later life; but there is no such provision upon our statute books for institutions, technically so called, wherein adult blind persons may be maintained, so that there would seem to be some reason found in this fact for the giving of aid to those who, not being sustained in any public institution, are still at the disadvantage of not having the sense -of sight to aid them in obtaining a livelihood and so keeping them from becoming a public charge.

The objection to the statute- that it gives its benefits only to those who have acquired a certain residence in the state, might be urged with equal force against all of our poor laws. There must be an acquired residence in the county. It might be urged with equal force against the bestowal of the- elective franchise upon those ivh-o have acquired a certain residence in the state, county or voting precinct. It might be urged with equal force against the statute which provides that a person when bringing an action for divorce must have had a residence in the state a year and must be a bona fide resident of the county where the action is instituted. We think, then, that this statute is not open to criticism upon any of these grounds.

But it is claimed that it is the taking of private property by taxation and using it for a private and not for a public purpose. It seems to the court, however, that public interests are subservecl by the aiding of persons who might become a public charge, if left to their own resources, to such an extent that, by combining the small fund given them by the state with what they may be able to earn in those limited vocations which blind people may find, they may be able to maintain themselves and avoid becoming a charge; just as our infirmary directors are permitted to give out-of-door relief to many people instead of forcing them within the walls of the infirmaries. This law may be wise or unwise, expedient or inexpedient; it may not be good policy to grant any sort of -out-door relief to the poor; it may not be good policy to select among the many classes -of the helpless, the blind, and say that a special fund shall be set apart for them, and yet this law does not stand al-one in this respect. We have statutes providing for the relief of indigent soldiers; we have a soldier’s relief commission which apportions and distributes the fund. The theory of the legislators may have been that the mere fact that a person is blind, raises a presumption of some degree of helplessness entitling the person to relief.

On the other hand, it is urged that the special provision of our Constitution, the first section of Article VII, that “Institutions for the benefit of the insane, blind and deaf and dumb, shall always be fostered and supported by the state, and* be subject to such regulations as may be prescribed by the General Assembly,” is a direct authorization of the Legislature to give aid to the blind, and a broad construction is contended for this word “institution,” as used in the Constitution. Definitions of the word as given by our lexicographers, Webster and The Century Dictionary, are cited; and also the case of Gerke, Treas’r, v. Purcell, 25 O. S., 244; and the case of Humphries v. Little Sisters of the Poor, 29 O. S., 206.

It is urged that no technical limit to the scope of this word, “institution,” should be given by the court, but that it should be treated broadly as applying to the method or manner of aiding persons included in the three classes mentioned in this section of the Constitution: the insane, the blind and the deaf and •dumb. For myself, I am not fully persuaded that this word, “institution,” will bear this broad construction; but that this section is a recognition that the blind, as a class, should be considered and provided for by the Legislature, may well be argued. In other words, it is a recognition by the Constitution makers that the setting apart of the blind, just as the setting apart of the insane, is not a capricious selection, not an arbitrary selection, but that it is founded upon some reason, and whether any special legislation which is enacted for the benefit of such a class is wise or unwise, it still is not open to criticism simply because such a class has been set apart for the protection of the state.

It is also urged in behalf of defendant in error that even if ■this term, institution, is not to be so construed, and if the power for this particular act is not 'to be found in the section of the Constitution referred to, that still, under the broad police power of the state, it should be upheld. It seems to us, however, that this'case is one in which we may very properly refresh our memories with an examination of the distinction between the federal Constitution and the Constitution of the state of Ohio in regard to the rules of construction. The Constitution of Ohio does not grant powers to the Legislature except in so far as the power is broadly granted in an express provision that “The legislative power of this state shall be vested in a General Assembly,' which shall consist of a Senate and a House of Representatives,” found in Section 1, Article II of the Constitution of 1851, a provision very slightly altered from the Constitution of 1802, in the 1st Section of the 1st Article, which provided that ‘ ‘ The legislative authority of this state shall be vested in a General Assembly.” The distinction is very marked between this language and that used in the federal Constitution, where, at the very beginning of this supreme law of the land, we have the provision: “All legislative powers herein granted. shall be vested in a Congress of the United States.” I do not believe — and I voice here the views of the other members of the court — that any one of the provisions of the federal Constitution, to which reference has been made, touches this question. It is not our view that there is any violation of the Fourteenth Amendment, or of Article Y, or of the other sections and articles of the federal Constitution to which reference has been made, in this classification or in this use of the public funds, because it is not, in our judgment, a use of public funds for private purposes, but for a public purpose, to provide for those classes of its citizens who require this sort of relief.

It might be argued with some 'degree of plausibility, perhaps, that the Constitution makers having provided that ‘ ‘ Institutions for the benefit of the blind” should “always be fostered and supported by the state,” and it might be a limitation upon the power of the Legislature to provide for the blind in any other way. The Constitution of the state, as I have said, does not grant powers to the Legislature except by a general grant, and in determining whether any particular act is constitutional or otherwise, we must ascertain whether the Constitution contains any express or implied inhibition upon the power of the Legislature to make the enactment. But the examination of- this Section 1, clearly indicates that it is not even a grant — a special grant — of a power to establish institutions for the blind, deaf and dumb, or insane. It is a provision that such institutions for these classes shall always be fostered and supported by the state, and be subject to such regulations as may be prescribed by the General Assembly, but it is not a grant of power.

We have one ease in the state where there was, in terms, a grant of power, and yet the Supreme Court in construing it has held that it did not operate as such. The case referred to is Mason v. The State, ex rel McCoy, 58 O. S., 30, the syllabus of which is as follows:

“The provisions of the act of April 8th, 1896, entitled ‘An act to prevent corrupt practices at elections’ (92 O. L., 123), which direct the commencement of an action by the prosecuting attorney, at the instance of the attorney-general, for the purpose of incpiiring into the title to an office of a successful candidate who is charged with acts made unlawful by any law of this state, and which authorize the court upon finding any of such charges true to render judgment declaring the election void, the office vacant, and excluding the incumbent therefrom, are not in conflict with the Constitution, and are valid.”

And that is notwithstanding the fact that there was a special provision in the Constitution of the state as to the loss of franchise and the loss of the right to hold office by certain persons convicted of crime. I read from page 48 and certain other pages:

“The people in framing the Constitution committed to the Legislature the whole law-making power of the state which they did not expresly withhold. Plenary power in the Legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power is an exception.”

And a number of cases are- cited showing the policy of our Supreme Court, along this line. Judge Gholson used this language in one ease (11 O. S., 542):

“It will be observed that the provision is not that, the legislative power, as conferred in the Constitution, shall be- vested in the General Assembly, but that the legislative power of this state shall be vested. That includes all legislative power which the object and purposes of the state government may require, and we must look to other provisions of the Constitution to see how far, and to what extent, legislative discretion is qualified or restricted.”

On page 54 is certain language of Judge McIlvaine, from the case of State v. Covington, 29 O. S., 102:

“If the framers of the Constitutiofi had intended to take away from the Legislature the power to name disqualifications for office other than the one named in the Constitution, it would not have been left to the very doubtful implication which is claimed from the provision under consideration. That is to say, the conviction of a crime of felony. The power under the general grant being ample and certain, a statute should not be declared void because in conflict with an alleged implication unless such implication is clear and indubitible.”

• We find no such clear and indubitible implication from this provision of our Constitution that the state shall foster and support institutions for the blind, the insane and the deaf and dumb.

All legislative power being broadly conferred by the Constitution, it is not essential for us to inquire whether this particular enactment is under the police power, or whether it is under any other special power: it is under the general legislative power to make provision for any legitimate class recognized by a sense of justice and the common reason of the people of the state, or recognized by the Constitution itself as a class legitimately requiring attention.

The blind have been recognized by another statute of our state as a class requiring special treatment and consideration, and the act in which they have been so recognized has been declared constitutional by the Supreme Court in the case of State v. Hogan, at page 202, 63 O. S. I read from the syllabus:

“Section 6995, Revised Statutes, commonly known as the tramp law, whereby punishment is prescribed for threatening to do injury to the person of another by a tramp, is not in conflict with the Ohio Bill of Rights, nor with Section 26 of Article II of the Constitution, nor with the Fourteenth Amendment to .the Constitution of the United States.”

I might say that Section 26 of Article II of the Constitution of Ohio is claimed as one of the sections which support the contention of the plaintiff in error here.

This tramp law, referred to by Judge Spear is given on page- 208, and reads:

“Whoever, except a female or a blind person, not being in the county in which he usually lives or has his home, is found going about begging and asking subsistence by charity, shall be taken and be deemed to be .a tramp, ’ ’ etc.

On page 209 Judge Spear says:

“In brief, the claim against the law is that it deprives persons of liberty without due process of law and denies to them the equal protection of the laws, and deprives of the right of seeking and obtaining happiness and safety; that it is an act of ia general nature but not of uniform operation throughout the state; and that it subjects the accused to a cruel and unusual punishment. And it is specifically urged that the act does not operate uniformly because it provides a punishment for an offense committed in one county different from punishment for a like act committed in another, inasmuch as the offense of threatening to do injury to the person or property of another in a county other than that of the residence of the accused may be punished by incarceration in the penitentiary, while if done in the county of his residence is at most a misdemeanor.

“It is conceded that the law is of a general nature. The test of uniform operation, and with respect to the required conformity to the ‘law of the land’ and to the acquirement of due process of law, seems to be that if the law under consideration affected, embracing all .the persons who are or. may be in like situation and circumstances, and the designation of the class is reasonable, not unjust nor capricious or arbitrary, but based upon a real distinction, the law does operate uniformly, and if, added to this, the law is enforced by usual and appropriate methods, the requirement as to ‘due process of law’ is satisfied.” isfied.”

One of the contentions of counsel in argument was, that the money of the tax-payer is not taken by due process of law; that in the distribution of the fund arising from taxation, public interests are not recognized as the true criterion — in other words, if the money was used it was for a private purpose.

W. G. Ulery and J. S. Martin, for plaintiff in error.

Cole, Whitlock,, Milroy & Malloy, for defendant in error.

There is very much more in this cited decision in discussion of some of the principles which might seem to be applicable •t’o this case, but it is unnecessary tio read it. The judge' does say:

“Nor is it an objection to a penal statute that it does not apply to all persons who might by any possibility commit the act interdicted. It is for "the Legislature to determine how far to go in order to afford the desired protection to society. The exemption of some, where it does not interfere with the rights o¡£ others, is not open to objection on constitutional grounds. The principle is illustrated in the statute under review. Females and blind persons are not included within its terms. This, presumably, from considerations of humanity, but principally because but little if any danger is threatened from such, and this exemption has not met with objection in this case. The act in question undertakes to define a tramp, or vagrant, by stating what acts shall constitute such character.”

On the whole, the' conclusion of the court is that, the act is not invalid for any reasons claimed by counsel for defendant in error and the judgment of the court below will be sustained


source: Caselaw Access Project

license: Public Domain

text:
    CARE EXERCISED BY A PASSENGER AS TO WHERE SHE STEPPED.
    [Circuit Court of Hamilton County.]
    The Cincinnati Traction Company v. Nellie McKee.
    Decided, July 8, 1905.

      Negligence — Of a Passenger — In leaving a Car Before it toas Fully Stopped — Though Invited to Do So By the Opening of the Gate— Duty of Passenger to Look "Where He Steps — Charge of Court— Compensation for Worry Over Injury.

    1. A majority of the court are of the opinion that the plaintiff, under the circumstances of this case and as limited hy the trial judge, was charged with the duty of looking where she stepped while leaving the car.

      2. In a suit - for damages on account of an injury sustained, compensation may be recovered on account of worry, anxiety and care regarding the consequences of the injury.
    Giffen, J.; Jelke, P. J., concurs; Swing, J., dissents.
   The defendant in error, as plaintiff in the court of common pleas, recovered a verdict against the plaintiff in error, as defendant, for personal injury sustained while a passenger on the incline railway of the defendant leading to Mount Adams. The negligence charged in the petition is as follows:

‘ ‘ Plaintiff states that said truck was carried to the top of said incline, but before the same was safely attached to the stationary platform at the top of said incline, the gates were thrown open by defendant’s agents and employes, thereby inviting this plaintiff and other passengers to make their exit from said truck to the stationary platform, and out' to Celestial street. Plaintiff states that as she, with others, was passing from said truck to said platform, the toe of her shoe was pressed between the truck and the platform by a sudden jerk made upon the truck, and by reason whereof her toes and foo.t were seriously mashed and disfigured, and permanently injured.”

It is claimed by counsel for plaintiff in error that counsel for defendant in error, during the progress of the trial, at page 99 of the bill of exceptions, disclaim any negligence on the part of the traction company in suddenly jerking the truck, and that the. only remaining allegation, that the gates were thrown open before the truck was safely attached, does not constitute actionable negligence.

The statement referred to, at page 99, is a part of the question addressed to the witness, and we do not understand that counsel thereby intended to disclaim all negligence on the part of the traction company in moving the truck after the gates were thrown open, whether done suddenly, unusually, or otherwise. But the court in its charge to the jury did withdraw all claims of negligence other than that pertaining to the opening of the gates, at the time and in the manner described in the petition. "We must assume therefore that the jury found that the traction company was negligent only in that particular.

That the allegation charges negligence, we entertain no doubt, but whether it contributed directly to the injury depends upon the other facts attending the primary act complained of. There was testimony tending to show that the truck had not quite reached the platform when the gates were thrown open; that plaintiff, while passing out, got her foot between the truck and the platform while the truck was moving. This appears to be the theory upon which the verdict of the jury is founded. Assuming all this to be true, and granting that the defendant was negligent, the evidence discloses no reason why the plaintiff, by the exercise of ordinary care, could not have observed the condition of the truck, thereby avoiding all injuries. She herself testifies that, in passing out, she at no time looked down or observed where she was stepping, but assumed, because the gates were open, that the passage way was entirely free from danger. This, of itself, is contributory negligence, which would not permit of recovery. Schaefler v. The City of Sandusky, 33 O. S., 246; Pennsylvania Company v. Rathgeb, 32 O. S., page 66.

If, on the other hand,'the truck, as averred in the petition, had reached the top of the incline, and by reason of its not being safely attached to the stationary platform, began to descend while the' plaintiff was leaving, and then was pulled up again suddenly or otherwise, the question of contributory negligence should be left to the jury.

The jury, however, were not permitted, from the instruction of the court, to consider this theory of the case, and we must assume that they found the only negligence of the defendant to consist .in throwing the gates open at the time and in the manner described in the petition, and that the plaintiff in no wise contributed to her injury; which, as we have shown, is clearly against the weight of the evidence.

The charge of the court that the plaintiff was entitled to recover compensation for resulting worry, anxiety and care, about the consequences of the injury, is sustained by the case of Smith v. Pittsburgh, Ft. Wayne & Chicago Railway Company, 23 O. S., page 10.

Kittredge S Wilby, for plaintiff in error.

D. D. Woodmansee, for defendant in error.

We find no other error, and the judgment will be reversed upon the ground that it is clearly against the weight of the evidence, and cause remanded for a new trial.

Judge Swing dissents from the- holding that the plaintiff was guilty of contributory negligence in not observing where she was stepping.


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    ASSIGNMENTS OF WAGES,
    [Circuit Court of Alien County.]
    The Cincinnati, Hamilton & Dayton Railway Co. v. The Lima Railway Supply Co.
    Decided, June 25, 1905.

      Wages Assigned — Recovery of, an Equity Proceeding■ — Assent of Debtor to Assignment Necessary, When.

    There can be no recovery in an action at law on an assignment of wages due and to become due, where there is no proof that the debtor assented to the assignment, and the amount due exceeds the amount assigned.
    Hurin, J.; Norris, J., and Vollrath, J., concur.
   This is an action at law brought originally before a justice of the peace to recover $40 alleged to be due defendant in- error,, there plaintiff, by reason of an assignment of $60 of the wages earned and to be earned by ,an employe of the railway company. Plaintiff recovered judgment before the justice of the peace. The case was appealed by defendant to the common pleas court where the demurrer to the petition was overruled and the ease tried to a jury: and apparently on the ground that, at the time of the discharge of the employe, more than the full amount of wages assigned were due said employe from said1 railway company, a verdict for the full amount, with interest, was returned and judgment rendered by said court. To reverse this judgment and the overruling of the motion for a new trial, error is prosecuted to this court.

This action was brought as an action at law to recover on an assignment of a part of the wages due and to become due.

On the authority of Railway Company v. Volkert et al, 58 O. S., 362, the judgment of the common pleas court must be reversed.

In this case, Judge Spear, in rendering the opinion of the court, says, on page 369: “It is conceded that an assignment of a part of a debt can not be enforced at law unless assented to by the debtor.” Continuing, he says: “This principle is held in Mandeville v. Welch, 5 Wheaton, 277, opinion by Mr. Justice Story. The reason is that it might subject the debtor to a multiplicity of suits at the instance of each assignee of separate portions of the debt, and as the original creditor would not be a party to those suits and' might thereafter, upon an action for the whole debt, deny the assignments, it would be impossible in a court to protect the rights of all the parties. ’ ’

Further on in the same opinion, the court proceeds to show that, in a suit in equity, where the original creditor and all other claimants may be brought before the court in one proceeding and their rights all settled by one decree, the same reason would not hold.

The case at bar not being a proceeding in equity and being founded on an assignment of a part only of the wages due, and there being no proof of assent by the debtor to the assignment, is squarely within the rule laid down in the case, referred to, which must control in this state, whatever may be the rule in other states under the authorities cited by counsel.

The case of Porter v. Dunlap, 17 O. S., 591, cited by counsel for defendant in error, is not in point for reason that it appears that the assignment in that case covered the entire amount of wages due and more than that amount. But if it were in point, the latter case of Railway Company v. Volkert, 58 O. S., 362, would control. The judgment of the court below will therefore be reversed with costs, but -without penalty. Judgment against defendant in error for costs, for which execution is awarded, and the cause remanded) for execution.


text:
    ASSIGNMENT OF CONTRACTS IN PAR.T.
    [Circuit Court of Hamilton County.]
    The New York & Bermudez Company v. August Herrmann et al.
    Decided, June 24, 1905.

      Contract — Divisibility of — Assignment of Part of — Rights Under Can Not be Enforced Independent of the Principal Contract, Unless — Injunction — Remedy for Breach.

    1. The assignee of one item of a contract acquires no contract rights, specific performance of which could be enforced independent of the principal contract, unless the item with whatever of interest or profit may inhere thereto can be discharged from all liability for the performance of the principal contract.
    2. Were it possible to acquire such rights by assignment, injunction would not lie to enforce them, but the assignee would be relegated to an action at law where a full and adequate remedy could be had for the breach.
    Jedke, P. J.; G-iffen, J., and Swing, J., concur.
   We are of opinion that item 13 of the Henkel contract of May 16, 1899, is not so divisible from, the main contract as to be susceptible, by assignment, of establishing independent contractual relations with the assignee of such item.

This could only be done by discharging this item, and whatever interest or profit might be in the same, from all liability for the complete performance of the principal contract. This could not be done:

Fjrst. Because the hoard of water works commissioners has no power to surrender or give away any of the city’s rights secured to it by a contract legally entered into; and

Second. Because the board of water works commissioners can establish independent contractual relations only in the manner particularly prescribed in the act of April 24, 1896 (92 O. L., 606).

Again, there is nothing ambiguous or equivocal about the action of the board of October 10, 1902:

“Resolved, that consent is hereby granted said United States Construction Company to sublet to said New York & Bermudez Company all the work to be done and materials to be furnished, embraced in said item 13, and to assign to said New York & Bermudez Company all moneys which may become due and payable for the work- and material furnished under said Item 13; and be it further

Miller Outcalt and D. V. Sutphin, for appellant.

Frank F. Dinsmore, contra.

‘ ‘ Resolved, that this consent is granted by the board without in any way releasing or affecting the liability of said United States Construction Company, Aug. J. Henkel and the United States Fidelity & Guaranty Company, al'l or either of them,.for the faithful and complete performance of said contract, including the pari thereof herein permitted to be sublet to the New York & Bermudez Company.”

The board plainly set out its intention only to consent to a sub-letting.

We are of opinion that the New York & Bermudez Company acquired no contract rights, specific performance of which could be enforced independent of the principal contract.

We are further of opinion that even if the rights of the New York & Bermudez Company were as here contended for, injunction would not lie to enforce them, but said company would be relegated to an action at law where full and adequate remedy in damages could be had for any breach of contract. Steinau v. Gas Company, 48 O. S., 324.

An injunction will be denied, and petition dismissed.


text:
    PROCEEDINGS FOR THE LEVY OF A STREET ASSESSMENT.
    [Circuit Court of Lucas County.]
    Richard Adkins et al v. City of Toledo et al.
    Decided, March 4, 1905.

      Streets — Assessment for the Improvement of — Regularity of Proceedings — Preliminary Expenses May he Paid from General Eund — • And Included in the Assessment — Proceedings Under Statute Partly Unconstitutional — Assessment can not he Enjoined, When — Rules Regulating. Legislative Bodies — Reconsideration of Tote — Where the Action of Another Body was Toted Down.

    1. The cost of the necessary preliminary work or action pertaining to a street improvement, such as the cost of advertising, serving notices, etc., paid hy the municipality from its general fund, may he included in the assessment and collected from the owners of property specially benefited by the improvement, in order to reimburse the general fund, notwithstanding all such costs were proper charges which could enter into the aggregate charge to be assessed upon the properties benefited as part of the costs of the improvement, and no fund to pay such costs existed at the time the expenses were incurred.
    2. That part of original Section 2267 (repealed 96 O. L., 96; see 1536-221), which provided that no public improvement, except sidewalks and sewers, should be made by cities of the third grade of the first class until the majority of the owners of the property to be assessed therefor had petitioned the council for the improvement, etc., was legislation upon a subject of a general nature, and was unconstitutional, because it did not have uniform application throughout the state. Hence, where a street improvement was made ih conformity with the requirements of the remaining constitutional provisions of the statute, by a municipality of the class and grade specialty provided for in the unconstitutional part above referred to, an assessment to pay the costs thereof will not be enjoined merely because the procedure was not in accordance with the requirements of the unconstitutional part.
    3. As a general rule, in the absence of any special rule upon the subject of the particular legislative body acting, a vote upon a reconsideration need not be taken either at the same or the next succeeding meeting, but may be taken at any time before rights have intervened in pursuance of the vote taken, or before the status quo has been changed.
    4. The action of th,e board of councilmen of a municipality in voting down a resolution adopted by the board of aldermen, does not prevent it from reconsidering its action and passing the resolution at its next regular meeting held several days after the one at which the resolution was defeated, where it does not appear that in the meantime, the board of aldermen had' reconsidered and annulled their action in adopting the resolution, or that rights have vested in pursuance of the first action taken by th.e board of aider-men. And tbits ru'le applies, notwithstanding the legislative authority of the municipality is vested in the two boards, and the concurrence of both is necessary to the adoption of a resolution or the passage of a law.
    Parker, J.; Hule, J., and Haynes, J., concur.
    Appeal from Lucas Common Pleas Court.
   This case comes into this court by appeal. It is an action brought by Richard Adkins and a large number of other persons, to enjoin assessments levied, upon their property on account of the paving of East Broadway in this city. It is charged that the proceedings on the part of the city were so irregular and so lacking in the necessary support of fact and law as that the assessments are invalid. The principal grounds nf attack are:

First. That in the course of this legislation a certain resolution — which is a necessary foundation proceeding — after having been passed by the board of. aldermen, was defeated by a. vote of the board of councilmen. That thereafter the board of aldermen undertook to, and did, reconsider their action and passed the resolution, but that the resolution was not thereafter acted upon by the board of aldermen; and it is urged by- reason of the defeat of the resolution by the board of councilmen, if the subsequent vote to reconsider and the vote passing the resolution had-any effect, it was only in the way of an initiatory’ proceeding which would amount to the introduction and passing of a new resolution by the board of councilmen, which would therefore require a repassing by the board of aldermen in order to effect its full adoption.

Second. It is also urged that, in order to give support to- this proceeding, it was necessary that a petition asking for the improvement should be signed by a majority of those interested — • those owning the property along the line of the proposed improvement — -and that while there might have been a majority signing the petition which was filed in this case at the time it was filed and at the time1 it was acted upon by the board of aldermen, there had been such changes of ownership of the property between that time and the time that the board of councilmen took action upon the matter that a majority was not represented upon the petition; but, on the other hand, that a remonstrance had been filed which a majority had signed. And it is urged that a petition signed by a majority- of those interested must be on file at the time final action is taken by the legislative body, or at least at the time that final action is taken upon the preliminary resolution.

As to that claim, the averment is denied by the city, and it is insisted that a large number of these transfers that occurred between the time of the filing of the petition and the action thereon by- the board of aldermen and the subsequent action by the board of councilmen were made for the sole purpose of having a majority of those apparently interested sign the remonstrance and oppose the improvement; that these transfers were not bona fide, and that effect should not be1 given to them; that the signing of those receiving such conveyances, for this purpose should not be recognized.

We supposed that that question of fact had been threshed out upon the trial here, but it turns out since the trial that there has been some misapprehension about it and counsel may desire to be heard further upon it and perhaps introduce some evidence. The conclusion to which we have arrived makes that seem to us to -be an entirely- immaterial matter here; but if the parties interested shall deem it material, they may have a further inquiry into the matter, in order that -a proper finding of fact may be made upon that question as well as upon other questions involved; but, deeming it immaterial, we do not consider it to await such action, and we proceed to a determination of the case. :

Third. It is also urged — and this is a matter which does not affect the whole assessment, but only a part of it — that a part of the costs of the preliminary action upon this improvement, viz.: the costs of advertising, the costs of serving the notices, the costs of abstracting and numbering, the cost of inspecting and the cost of the assessment, amounting in all to $384.81, all pertaining to this improvement, all required by law, all necessary action, were paid out of the general funds of the city, a fund for this improvement not having been raised by the sale of bonds or otherwise, at the time this preliminary action was taken and this expense incurred; and while counsel do not dispute that vsjltj. Revised Statutes 2284 (Code 1536-262), these are all proper charges to enter into the sum that is to be assessed upon the property specially benefited, yet they say that, it having'been paid from the general fund, it can not now be collected from the parties specially benefited; that it may not be levied as an assessment even for the purpose of reimbursing the general fund. I will dispose of that matter first. We find that it is true that these are proper charges under Section 2284 which are to enter into the sum of the charges to be assessed upon the properties benefited as a part of the costs of the improvement.

It would seem that it might be very inconvenient, if not impossible, to raise these funds in the manner that funds are to be raised for-speeial improvements in time so as to pay these bills as they accrue. Before the work is entered upon under the contract the funds to pay the cost of the improvement must be in the treasury. These funds are ordinarily raised by the sale of bonds for the particular improvement, and the funds are set apart for that; but before this action is taken; and before the authorities or the Legislature of the city has come to the point where they may properly take action, expenses like these are incurred.

To be sure the parties to whom payments are due for such services may be required to wait until the funds are raised and put into the treasury where they can be drawn upon, and we understand that it is conceded by counsel for the plaintiffs that if they should be required to do so they should then be paid from such, fund; that such action would be regular and proper. But, because these matters were anticipated, because this money was practically borrowed from the general fund, they say that now the city is in a situation where it can not reimburse the general fund. We are not cited to any authority which seems to us to be in point, or at least to control. It seems to us that this- claim lacks reason and equity for its support.

The burden is no greater for the persons who are required to pay these expenses for-this improvement, if the payment is made in this way, than it would be if it were paid in what we conceive to be the regular way; and we know of no law that prevents a council from taking this action; or, if there is a law (designed to prevent it, we know of no principle which would justify the plaintiffs in insisting that they should be benefited by this irregularity — if it is an irregularity. We are cited by counsel for plaintiffs to the case of Cin., L. & N. Ry. v. Cincinnati, 62 Ohio St., 465, and especially to what is said by Judge Burket in the course of his opinion at pages 474-5, and I will read that. Preliminary to reading that, I will read what was decided by the court, and all that was decided by the court, viz: what is contained in the syllabus.

“1. Section 19, Article I of the Constitution is a limitation upon Section 6, Article XIII, as to the power of assessments.

“2. Compensation paid to a landowner for lands taken by appropriation proceedings to open a street, can not be assessed back upon the lands of the owner remaining after such taking. Neither can the costs and expenses incurred in such proceedings be so assessed. Cleveland v. Wick, 18 Ohio St., 303, overruled."

And in discussing provisions of the Constitution which were drawn in question there, Judge Burket says as follows:

“Being such limitation, all that is found in said Section 19 bearing upon the power of assessment must also be construed as a limitation upon that power; that is, the power of assessment in said Section 6 must be so used and administered as not to conflict with said Section 19, but must be subservient and subordinate thereto.

‘ ‘ The limitation is not only as to the amount of the assessment, which can not exceed benefits, but it is also as to the purpose for which an assessment can be made. No assessment can be made to raise general revenue, because that must be raised by taxation under other provisions of the Constitution, as has often been held by this court. And as assessments can not be made to raise general revenue, no assessment can be made to replenish the general revenue in the treasury, or reimburse the treasury for general revenue which has been paid out. When payments have been made out of the general revenue fund, the treasury can only be replenished or reimbursed by taxation, 'or fees, and not by assessments.”

Now a reading of the case discloses that what the court had under consideration and what the learned judge had in mind in using this language was, a ease where general revenue had been usdd for a purpose for which general revenue only might be used, and not a case where general revenue had been used for a purpose on account of which special assessments might be levied and funds raised. He had not under consideration a -ease where money had simply been borrowed from the general revenue to supply temporarily the place or purpose -of a fund that might lawfully be raised by special assessment. He had under consideration a case where general revenue had been used to pay for a thing which should be paid for with and by the use of general revenue, and, therefore, -he says you can not make a special assessment in the first instance to raise such revenue, neither may you accomplish the same thing through raising by special assessment revenue to • reimburse the general fund, because it is a matter the expense of which must be paid from funds raised by general taxation.

And the case to which we are also cited in Dayton v. Bauman, 66 Ohio St., 379, is in harmony with this and goes no further.

We hold, notwithstanding the fact that these expenses were paid out of the general revenue fund, and -even though there may have been an irregular mode of procedure, that the-parties to be benefited by these improvements are not thereby relieved from paying this part of the expenses, and that they are not in a position to interfere with an effort -of the city to reimburse the fund from which the money was temporarily borrowed.

We deem this question about the number of signatures to the petition and the remonstrance and these questions about the transfers of the property pending the proceedings as immaterial because, according to our view of the matter, no petition was required. The statute relied upon is original Section 2267 (repealed 96 O. L., 96; see 1536-221), which was in force at the time these proceedings were going forward, and the part of the section requiring. the petition, however large the affirmative vote of the council may be, is special to the city of Toledo. The first part of the section, the part which is in substance the form of the law before this part special to the city of Toledo was added, reads as follows:

“Section 2267. No public improvement, the cost or part of cost of which is to be especially assessed on the owner of adjacent property, and no order appointing assessors of damages, or confirming their report, shall be made without the concurrence of the council, and it shall be essential that two-thirds of the whole number of members elected to the council concur, unless two-thirds of the owners to be charged, petition in writing therefor, and in villages not situated in a county containing" a, city of the first class, no special assessments shall be made except for sidewalks and gutters, and main or trunk line sewers, and’ such other sewers as are provided with a good and sufficient outlet, unless it first receive the assent in writing of a majority of the owners to be charged therewith.”

So that it will be seen that where two-thirds of the whole number of persons elected to the council concur under that general provision of the statute (and the statute before the amendment was applicable to all the cities of the state) no petition was required; and it is shown and conceded here that two-thirds of each body of the common council did concur in this legislation. The provision applicable to the city of Toledo reads as follows:

“Provided, that in cities of the third grade of the first class, no public improvements (except sidewalks and -sewers * * *), the cost or part of the cost of which is to be assessed on the owners of adjacent property, shall be made until the majority of the owners of the property to be assessed shall have petitioned to the common council asking for said improvement, anid a statement of title showing the existing owners of said property shall have been filed with the city clerk, and until said, petition shall have been approved by the city solicitor, and his certificate indorsed thereon, the. cost of procuring said statement to be taxed as part of the cost of improvement against the property assessed therefor.”

Now that special provision made applicable to the city of Toledo alone, is legislation upon a subject of a general nature ■and it does not have uniform application throughout the state, and, under recent decisions of the Supreme Court of Ohio, it is clearly unconstitutional. The common council need not have invoked it, and it does pot appear that the common council did invoke it ©r act under it. We think the council might lawfully ignore it, and, so far as appears in this record, the council did ignore it. If the proceedings are sustainable under the law without the use of this provision, we believe we are bountd to sustain them, and that we may not defeat the action of the council by invoking an unconstitutional provision.

This provision of the statute is not attacked on the ground that it confers corporate power. It is well said under that head, that instead of conferring corporate power it seems to limit or attempt to limit somewhat the corporate power already conferred by the general law — by the law applicable to all municipalties. It qualifies and restricts such power so that perhaps it could not be successfully attacked upon the ground that it is a special law conferring corporate power. But it is a special law upon a subject of a general nature and it does not have general operation throughout the state, and we' find that with that part of the statute eliminated, ample authority in the council to proceed as it did proceed, by a two-thirds vote, to declare in favor of this resolution and proceed with all legislative action necessary in the premises. And it is evident that this provision 'special to Toledo is not of a character that it may be said that the Legislature would not have passed the law.with this provision absent. It is an excrescence that may be lopped off without harm to the remainder. We simply disregard-the amendment and go back to the statute as it stood before the amendment added this provision.

The remaining question ■ is, were the proceedings invalidated by the action of the councilmanic body in defeating this resolution in the first instance and afterwards reconsidering and passing it and proceeding with the work without requiring further action on the part of the aldermanic body?

The preliminary resolution was passed by the board of alderman on May 22, 1899. It went over to the council and was voted down by the council on May 29, 1899. On June 12, 1899, the council voted to reconsider it, and upon the same day and at the same meeting it passed the resolution by the requisite vote. It appears that between May 29, when the resolution was defeated, and June 12, when it was reconsidered and passed there was no meeting of the council; that the meeting on June 12 was the first meeting of the council succeeding the meeting of May 29.

Now with respect to the reconsideration of a vote taken by the council, the legislative bodies of the city have adopted a rule, which is rule No. 18 found in a book entitled, “Manual of the Common Council and the Municipal Government of the City of Toledo,” under the title', “Rules and Regulations for the Government of the Boards of Aldermen and Couneilmen of the City of Toledo, 1898-1899,” which rule reads as follows:

“Rule XVIII. When a question has been taken it shall be in order for any member voting on the side which prevails to move a reconsideration thereof at the same or the succeeding meeting; or, if no regular meeting be held, then at the next meeting thereafter unless in the meantime the matter under consideration shall mave become a law.”

That rule, as we understand it, does not go beyond the ordinary rules and settled practice and law upon this subject, but rather restricts and qualifies them. It is generally true that a motion for'reconsideration must be made by a person voting on the side prevailing, but, under the authorities, there seem to -be some exceptions even to that rule. As a general rule, in the abence of any special rule upon the subject of the particular legislative body acting, a vote upon a reconsideration, as we understand it, need not be at the same meeting, nor at the next succeeding meeting, but it may be taken at any time before rights have vested in pursuance of the vote' taken, -or before the status quo is changed, and it will be regular. And this rule provides that it does not apply if in the meantime the matter under consideration shall have become a law; which would be in consonance with the general rule that if some other body had acted whereby the matter had become a law, that it would not be competent for the body 'first acting to move a reconsideration to defeat such later action of another body. This rule seems to make it impossible for the same body which has made the matter a law to reconsider it. If, for instance, a law had originated with the aldermen and passed through that body and had gone over to the council and the council had voted to make it a law, under this rule the council could not reconsider that vote. But. however that may be, it is not a matter of very much interest here

This resolution had not in the meantime become a law. The vote was taken at the next regular meeting which was held after the resolution was defeated. If, in the meantime, the alder-manic body had taken up the resolution and defeated it, if they had reconsidered their action, if they had retreated after they had found out what had been done by the council, or perhaps even before the council had acted at all, it would present a different question; but the matter stood before the board of aider-men on June 12, precisely as it stood on May 29 — it had been passed by that vote, and so far as -they were concerned they had not taken any further action; they had done all they could do toward the adoption of the resolution and they stood upon their action — and matters being, therefore, in statu qw upon June 12, so far as action by that body was necessary and so far as the action of either body was concerned, and no rights of anybody having vested in -the meantime in consequence of the action taken by the council on May 29, we can not understand why the council might not at that time reconsider its action and pass the resolution. We believe it could and we hold that it could.

Rules upon this subject will be found laid down in Chapter 14 of Cushing’s Manual of Parliamentary Practice. The rule as to the reconsideration of motions seems to have been one which originated in the United States and is peculiar to this country, or, at least it did nbt formerly obtain in England; and whether it does now, I am not prepared to say; but it has become very firmly established here. It is said, in Section 255:

“It has now come to be a common practice in all our deliberative assemblies, and may consequently be considered as a principle of the common parliamentary law of this country, to reconsider a vote already passed, whether affirmatively or negatively.

“For this purpose, a motion is made and seconded in the usual manner that such a vote be reconsidered; and, if this motion prevails, the matter stands before the assembly in precisely the same state and condition, and the same- questions are to be put in relation to it as if the vote reconsidered had never been passed. Thus, if an amendment by inserting words, is moved and rejected, the same amendment can not be moved again; but, the assembly may reconsider the vote by which it was rejected, and then the question will recur on the amendment, precisely as if the former vote had never been passed.

“It is usual in legislative bodies to regulate by a special rule the time, manner, and by whom, a motion to reconsider may be made; thus, for example, that it shall be made only on the same or succeeding day — by a member who voted with the majority —or at a time when there are as many members present as there were when the vote w-as passed; but, where there is no special rule on the subject, a motion to reconsider must be considered in the same light as any other motion, and as subject to no -other rules. ’ ’

And I read from Smith, Munic. Corp., Section 307:

“It is the undoubted right of corporate bodies, unless clearly restrained by legislative enactment, to reconsider a vote as often as they see fit, or to rescind the same, provided vested rights are not disturbed, up to the time when by a conclusive vote, accepted as such by itself, a determination has been reached. They may adopt rules as to the time when reconsideration may be moved; and it is not necessary to the validity of a resolution to reconsider that it should be moved by one who voted originally with the majority; and a board of aldermen which has indefinitely postponed action on a resolution of the common council can afterwards rescind that action and pass the resolution.”

There is more, in the succeeding section upon the same subject.

'It is urged on behalf of plaintiffs that there is some difference where the legislative authority is vested in two tribunals, as here — a board of aldermen and a board of eonncilmen — and their concurrence is requii'ed for the adoption of a resolution or the passage of a law; but we can not see that this is so; we can not understand upon what principle it would be so, unless in the meantime — between the time that the action is taken and the reconsideration — the other body has taken some action in the premises or has done something with which such subsequent action is inconsistent.

W. H. A. Bead, for plaintiffs.

Frank G. Crane and U. G. Denman, City Solicitor, for defendants.

The ease of Hough v. Bridgeport, 57 Conn., 290 (18 Atl. Rep., 102), seems to be in point. I read from the syllabus;

“A resolution laying out the street having passed the lower house of the common council came to the board of aldermen. By law it was necessary to the validity of the lay-out that the aider-men should concur in passing it. They indefinitely postponed the resolution and at a later meeting rescinded that action and passed the resolution. Held to be a legal concurrence.”

And we think that other authorities cited in the brief are in point. We find no authority laying down a different rule based upon the circumstance that there are two bodies to act that must concur upon the resolution or action in question. Hence we believe and hold that the action of the council in the premises was valid; that it was not necessary to ask for the reeoncurrenee of the aldermanie body in order to legally proceed upon the resolution; and so holding, and there being no other fault found with this proceeding, and no fatal fault therein that we can discover, we hold that the action of the city authorities in the premises was legal and valid and that the assessments must-stand. The petition of the plaintiffs will be dismissed, at their costs.


text:
    EXTENSION AND FORFEITURE OF STREET RAILWAY FRANCHISES.
    [Circuit Court of Summit County.]
    The City of Akron v. The Northern Ohio Traction & Light Company.
    Decided, April, 1905.

      Street Railway Franchises — Renezvals and Extensions — Forfeiture by Abandonment.

    1. An ordinance which recites that it is intended by it to renew and ex* tend all the franchises, rights and privileges now owned by a street railway company, and which provides in plain terms that the rights, privileges and franchises granted under a former ordinance “beand the same are hereby renewed and extended,” continues and renews the right of the company to lay tracks on a portion of the territory covered by the original ordinance, but not constructed at the passage of the renewing ordinance, notwithstanding the fact that such territory is not specifically named in the renewing ordinance.
    2. When an ordinance granting a street railway franchise provides that a failure to comply with the terms and conditions of the ordinance after twenty days notice from the city council shall operate as a forfeiture of all rights and franchises granted, the failure of the owner of the franchise to lay a track in a portion of the territory covered by the franchise will not work a forfeiture of its rights to lay such track in the absence of notice given as provided in the ordinance.
    Winch, J.; Marvin, J., and Laubie, J. (sitting in place of Henry, J.) concur.
    Appeal from tbe Court of Common Pleas of Summit County.
   This action was brought to restrain the defendant from constructing a street railway on that part of College street in the city of Akron between Mill street and Market street.

From the petition it appears that on July 2, 1888, the council of the city of Akron granted to John S. Casement, his successors and assigns, a franchise for the period of twenty-five years to construct and operate a street railroad on certain streets in said city, including College street from Market street to Middle-bury street, now known as Buehtel avenue, and that under said ordinance, a street railroad was constructed upon said College street from Mill street to Buehtel avenue, but none was ever constructed on that part of College street in question, a distance of about seven hundred feet, there being street railroads upon both Market and Mill streets, but no connection between the two on College street.

Thereafter the Akron Street Railway & Illuminating Company succeeded to all the rights of said John S. Casement under the ordinance mentioned, and receivers having been appointed for said company, on the 13th day of March, 1899, the council of said city passed an ordinance entitled: “An ordinance granting the Akron Street Railway & Illuminating Company, its receivers, successors and assigns, extensions and renewals of the rights, privileges and franchises now owned by it, so that the said rights, privileges and franchises will continue and be in force until the first day of February, A. D. 1924, and prescribing the terms and conditions of such extensions and renewals.”

The defendant has succeeded to all rights under the ordinances mentioned, and on April 4, 1904, notified the city of Akron of its intention to construct a line of street railway on said College street between Mill street and Market street.

On the 11th day of April, 1904, the council of said city passed a resolution protesting against and objecting to the laying of street railway tracks by the defendant on College street between Mill street and Market street, and declaring the forfeiture of the privilege and franchise claimed by the defendant to lay said track and directed the solicitor of said city to take such legal steps as he might deem necessary to prevent said construction.

Whereupon the solicitor brought this action praying for an injunction against said proposed construction and that the forfeiture de'clared by said council of the right, privilege and franchise claimed by the defendant to lay street railway tracks in College street between the points named be approved, confirmed, adjudged and declared by the court.

Plaintiff bases its right to the relief prayed for upon two propositions:

First. That the ordinance of 1899 terminated the rights of the company in that part of College street in question without renewing them.

Second. That whatever rights the company once had in said street have been lost by abandonment and-non-user.

Let us examine these propositions in their order.

To maintain the first proposition, plaintiff makes and relies upon three quotations from the ordinance of 1899, as follows: From the second paragraph of the preamble: “Whereas, The-Akron Street Railway & Illuminating Company, George W. Crouse and A. O. Beebe, receivers, now own and have m operation a street railroad in and along certain streets in said city, as follows, to-wit:” Then follows the streets and parts of streets on which the company “own and operate” its road, but no reference is made to College street between Market and Mill streets.

From Section 8: “It being the intention to renew and extend all the franchises, rights and privileges now owned by the Akron Street Railway & Illuminating Company, George W. Crouse and A. O. Beebe, receivers, so as to grant permission to the Akron Street Railway & Illuminating Company, its receivers, successors and assigns, to and until the first day of February, A. D. 1924, to maintain and operate a street railway * * * and the Akron Street Railway & Illuminating Company, its receiyers, successors and assigns, are hereby granted permission to and until February 1, A. I). 1924, to maintain and operate a street railway” upon certain streets, naming them, but not mentioning the territory in question.

From Section 9: “The intention being that the terms of the franchises under which the said Akron Street Railway & Illuminating Company, George W. Crouse and A. O. Beebe, receivers, are now operating, shall continue in full force and effect, and be as fully complied with, * * * as though the same were fully embodied herein, except where the provisions of this ordinance shall conflict therewith, in which case the provisions of this ordinance shall control.”

Prom the provisions quoted plaintiff claims that it is manifest that the ordinance of 1899 superseded the ordinance of 1888, and that as the ordinance of 1899 specifically enumerates the streets and parts of streets over which the franchises were renewed and does not mention the territory in dispute, and uses tfie words “maintain” and “operate”, which imply previous construction, the intention of the council is manifest to renew jand extend the right of the company to maintain and operate street railways already constructed, but not to renew or extend the right to construct new railways on territory originally granted, but not mentioned in the last ordinance.

Such conclusion might, perhaps, be drawn, were there not other provisions of the ordinance of 1899, which we must not overlook.

In addition to the title of the ordinance, which has already been given, our attention is called to the following parts of the ordinance—

The third paragraph of the preamble :

“Whereas, it is conducive to the public interests that the time of the expiration of the franchises, rights and privileges now owned by the Akron Street Railway & Illuminating Company, George W. Crouse and A. O. Beebe, receivers, should be extended So that all the franchises, rights and privileges now owned by the Akron Street Railway & Illuminating Company, George W. Crouse and A. O. Beebe, receivers, shall expire on February 1, A. D. 1924.”

1 ‘ Section 4. That the rights, privileges and franchises granted to John S. Casement, by an ordinance entitled ‘An ordinance granting permission to John S. Casement, his successors and assigns, to construct and operate a street railroad in and along certain streets therein named,’ and passed m council on the second day of July, A. D. 1888, which said rights, privileges and franchises are now owned by the Akron Street Railway & Illuminating Company, George W. Crouse and A. O. Beebe, receivers, be and the same are hereby renewed and extended Until the 1st day of February, A. D. 1924.”

“Section 11. That from and after the passage of'this ordinance, and the acceptance, and for the full term thereof, the improvement of existing lines and the construction of new lines of said railway shall be under the supervision, ’ ’ ete.; ‘ ‘ the tracks * * * shall be so constructed,” etc.

From Section 16, regulating fares: “For each passenger from any point on the line of said railway within the city limits, to any point on streets upon which the Akron Street Railway & Illuminating Company, its receivers, successors and assigns, may now or hereafter operate a street railway within the city limits, or from any point on any street upon which the Akron Street Railway & Illuminating Company, its receivers, successors and assigns, may hereafter operate a street railway within the city limits,’ to any point on the line of said railway within the city limits, one continuous trip, either way, a fare of 5 cents;” etc.

It is manifest, considering the ordinance of 1899 as a whole, that it extends and renews all the rights, privileges and franchises granted by the ordinance of 1888. Among other rights, privileges and franchises granted by the original ordinance was the right to construct a street railway on the street in question, and that right is therefore renewed and extended, unless it had been lost in some manner, which brings us to the second proposition made by plaintiff, that whatever right was originally granted, abandonment and non-user have forfeited it.

If we' examine the franchises again upon this proposition, we find that such contingency is provided for in both ordinances.

Section 2 of the ordinance of 1888 provides:

“A failure of said John S. Casement, his successors and assigns, to comply with the terms and conditions of this ordinance after twenty days notice from the city council, shall operate as a forfeiture by said John S. Casement, his successors or assigns, of all rights and franchises herein granted. ’ ’

Under this ordinance no notice was ever given the company to lay a track on College street between the points named, and we hold that before a forfeiture of its right so to do would be worked or could be declared, such notice must be given as required by the ordinance.

Hence, at the time the ordinance of 1899 was enacted, the right to lay tracks on College street still belonged to the Akron Street Railway & Illuminating Company, and said right was not only renewed by the latter ordinance, but the passage of the ordinance was an express waiver of any failure to lay said track theretofore.

Clyde F. Beery and Scott D. Kenfield, for plaintiff.

Rogers, Rowley, Bradley & Rockwell, for defendant.

The ordinance of 1899 contains in Section 21 a similar provision for forfeiture of all rights and franchises therein granted upon failure to comply with any of its terms and' conditions after twenty days notice from the city council, and no such notice having been given regarding the failure to lay tracks on College street at the time the railway company gave the city notice of its intention to lay said tracks, it follows that said council had no right at that time to declare said privilege forfeited, and the petition must be dismissed.

Judgment accordingly.