author: CARPENTER, 3.

text:
    ARMY AND NAVY.
    [Cuyahoga (8th) Court of Appeals,
    November 13, 1916.]

      In re Oliver Bugbee.
    State Court without Jurisdiction to Release by Habeas Corpus Minor Enlisted Soldier in National Guard.
    A state court under Sec. 1117 U. S. Rev. Stat. is given no jurisdiction of an application for release by habeas corpus of a member of the national guard notwithstanding when he enlisted he was between sixteen and eighteen years of age, and that his enlistment was without the consent of his parents.
    Habeas Corpus.

      Alfred L. Steuer, for complainant.

      Turney, Olds & Sipe, for defendant.

      Motion to certify overruled by Supreme Court July 3, 1917, 62 Bull. 315.

   CARPENTER, 3.

On June 28, 1916, Mrs. Elizabeth Bugbee filed with the -clerk of the common pleas court of Cuyahoga county the following petition, upon which an alternative writ was issued and due return of service of process made a

“Your petitioner, Mrs. Elizabeth Bugbee, mother and next friend of Oliver Bugbee, a minor, respectfully represents that said Oliver Bugbee is unlawfully restrained of his liberty by one Captain Oatman of-Company ‘C’ Engineers, Fifth Regiment; that said Oliver Bugbee is but seventeen (17) years of age, and that his parents have never consented to his enlistment in said Company ‘G.1 Wherefore your petitioner asks that a writ of habeas corpus may be granted and he may be discharged from such unlawful imprisonment.”

The return of Captain Harry C. Oatman admits that he is holding the said Oliver Bugbee as a soldier of Company “C” Corps of Engineers, National G-uard of the United States of America, and as a soldier of the United States and not otherwise, and also avers that he is such soldier and in that capacity has beeri ordered by the President of the United States into service and is now serving in obedience to the said order, and as such has received allowance and equipment from the United States; and having produced the body of said Oliver Bugbee, claims that the state courts of Ohio are without jurisdiction, in the premises.

The following statement of facts were agreed upon and filed as a part of the record :

“ (1) That soldier is over 16 and under 18.
“ (2) That President’s call was June 18, 1916.
“ (3) Bugbee properly enlisted June 21, except as stated in (5).
“(4) That he has been on United States pay-roll since June 21, 1916, and has been serving since said day and has received the equipment and allowances of a soldier.
“(5) That mother’s signature on enlistment paper was. not written by her, which fact was unknown to enlisting officer who supposed she had signed same.
“ (6) That neither father nor mother has since consented to his enlistment.
“(7) That he is detained by Capt.-Harry C. Oatman as commanding officer Company C Corps of Engineers, as a soldier, and under charge of fraudulent enlistment.
• “ (8) That the soldier signed the new form of enlistment oath. ’ ’

Upon hearing, the court of common pleas found that said' Oliver Bugbee was being unlawfully detained and granted the writ, ordering that he be remanded to his parents. From this, judgment error is prosecuted to this court.

The real question presented may be stated thus: Whether any judicial officer of a state has jurisdiction to issue a writ-of habeas corpus or to continue proceedings under the writ when issued for the discharge of a person held under the authority or claim and color of authority of the United States by an officer of that Government. Under Art. 1, Sec. 8, of the constitution, congress has power to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United! States.

In Art. 2. Sec. 2, of the constitution, the President shall be commander-in-chief of the army and navy of the United States when called into actual service of the United States.

It is conceded that the President under- his constitutional authority did on the eighteenth day of June, 1916, three days before Bugbee’s enlistment, call into service of the United States the national guard of the state of Ohio. That Bugbee has been on the pay-roll since June twenty-first and has been serving since said day and has received the equipment and allowance of a soldier. In other words, he became on June 21,1916, and has since continued, not only de facto but de jure, a soldier, -subject to the laws and regulations governing the regular army, as provided in Sec. 101 of the amended federal militia law. This was Bugbee’s status when his mother-filed her petition. Notwithstanding he was under the statutory age when he enlisted, yet he could not avail himself of a writ of habeas corpus, for his contract is binding upon him as under a common law contract, and was not voidable.

“It is established law that a minor enlisted over 16 without his parent’s consent can not himself repudiate the contract and obtain his release from service on his own petition.”

See United States v. Gibbons, 24 Fed. 135; Davison, In re, 21 Fed. 618; Hearn, In re, 32 Fed. 141; Spencer, In re, 40 Fed. 149; Solomon v. Davenport, 87 Fed. 318 [30 C. C. A. 664].

It is contended by the petitioner that inasmuch as Bugbee, being under the statutory age of 18 and having enlisted in the service without the consent of his mother or father, his enlistment was not such as is contemplated by Section 1117 of the Bevised Statutes of the United States, as amended June 3, 1916. Said statute is as follows:

“No person under the age of 18 years shall be enlisted or mustered into the military service of the United States without the written consent of his parents or guardians; provided, that ■such minor has such parents or guardians entitled to his ' ■custody and control.”

And it is also contended that the mere publication of the President’s call was not effective until a time had been fixed when the national guard should respond. Even so, but the time was fixed and the call was made to become effective forthwith as evidenced by the President’s proclamation issued June 18, 1916, in these words, as written in the latter portion of the proclamation:

“I am, in consequence, instructed by the President to call into the service of the United States forthwith through you the following units of the organized militia and the national guard. ” • .

Returning, now, to the effectiveness of Sec. 1117 as it relates to the claim of the petition, that “the enlistment of Bug-bee was not such as contemplated by this statute.” It is true that this statute was passed for the benefit of the parents or guardians. It means simply that the government will not disturb the control of parent or guardian over his consent to invoke the aid of the court and secure the restoration of a minor to his or her control, but it gives no privilege to the minor. It evidently has refereneee to the national military forces raised and maintained by congress under its power to raise and support armies and to the national guard called as such by the President into the service of the United States for constitutional service. Sec. 101 of the federal militia law provides that—

“The national guard when called as such into the service of the United States shall, from the time they are required by the terms of the call to respond thereto, be subject to the laws an'd regulations governing the regular army, so far as such laws and regulations are applicable to officers and enlisted men whose permanent retention in the military service, either on the active list or on the retired list, is not contemplated by existing law.”

It will be observed that there is no provision in Sec. 1117, nor in any of the sections of this chapter, where authority is given to a state court to exercise jurisdiction in habeas corpus over this class of eases. Instituting such a suit is equivalent to suing the Government of the United States, which every tyro in the law knows can not be done without the government’s consent, and it must be manifest to any one that if the courts of the several states in the Union could exercise jurisdiction it would greatly impair the power of the national government in the formation, organization and efficiency of its. armies, even to the point of destruction. That a state court does not have jurisdiction is manifest from the following excerpt in United States v. Tarbler, 80 U. S. 397 [20 L. Ed. 597]. Section 2 of the syllabus is as follows-

“A state judge has no jurisdiction to-issue a writ of habeas corpus, or to continue proceeding under the writ when issued for the discharge of a person held under the authority of' claim and color of the authority of the United States by an officer of that government. If, upon the application for the writ, it appears that a party alleged to be illegally restrained, of his liberty is held under the authority or claim and color of the authority of the United States by an officer of that government, the writ should be refused. If this fact does not thus appear the state judge had the right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within the limit of the state; and it is the duty of the marshal or other officer having the custody of the prisoner to give, by a proper return, information in this respect. But after he has been fully apprised by the return that the party, is held by an officer of the United States by. the authority or claim and color of authority of the United States, he can proceed no further.” Winfield, Ex parte, 236 Fed. 552.

A majority of this court is of the opinion that it is without jurisdiction in the premises, and the petition in error is dismissed. The judgment of the common pleas is reversed and remanded for further proceedings.

Meals, J., concurs; Grant, J., dissents.


source: Caselaw Access Project

author: RICHARDS, J.

license: Public Domain

text:
    CRIMINAL LAW.
    [Huron (6th) Court of Appeals,
    October 5, 1916.]
    Richards, Kinkade and Chittenden, JJ.
    J. D. Sigourney v. State of Ohio.
    Former Jeopardy Denied after Verdict of not Guilty Directed for Fatally Defective Indictment.
    Where a verdict of not guilty has been directed on the application of the defendant, on the ground that the indictment was fatally defective, he can not thereafter plead former jeopardy when reindicted for the same offense.
    [Syllabus by the court.]
    Error.

      Leonard S. Wise and Frank Carpenter, for plaintiff in error.

      Irving Carpenter, Pros. Atty., for defendant in error.
   RICHARDS, J.

At the March term, 1916, J. D. Sigourney was indicted by the grand jury on the charge of forgery. To this indictment he-filed a plea of former acquittal which plea set forth, in substance, that he had been theretofore indicted and tried on the same charge and that on such former trial the state of Ohio- offered evidence in support of the charge, and that at the conclusion of the evidence on behalf of the state he filed a motion asking that the jury be directed to return a verdict in his favor “for .the reason that the indictment does not state facts constituting an offense punishable by the laws of the state of Ohio; and, second, lack of sufficient evidence of the fact of the uttering and publishing of forged instruments for the payment of money.” The court, as appears by the record, overruled the motion as to the second ground but granted the motion as to the first ground, to-wit, that the indictment failed to state facts constituting an offense.

The state of Ohio filed a demurrer to this plea of former acquittal and the trial court on consideration sustained the demurrer. Thereupon the defendant was placed on trial and convicted and sentenced.

No bill of exceptions was taken and the only question we have for consideration is: Did the trial court err in sustaining the demurrer to the plea of former acquittal? The plea of former acquittal sets forth the indictment in the first case and it appears from an examination of that indictment that it was fatally défeetive in omitting a line or two which evidently contained the gravamen of the charge. The charge against the defendant in the original case being so fatally defective was in law no indictment and in this respect was similar to a civil action where a demurrer is sustained to the petition on the ground that it does not state facts sufficient tof constitute a cause of action. It has been repeatedly held in civil actions of that character that the sustaining of a demurrer to such a petition and the rendition of a judgment dismissing the ease is not res adjudicata. Moore v. Bunn, 41 Ohio St. 62; Rafferty v. Traction Co. 25 O. C. C. 411 (1 N. S. 538).

Furtherinore it is perfectly clear that the court in the first trial having directed a verdict at the instance of the defendant and on the ground that the indictment was fatally defective, he is now estopped to urge that the judgment so procured by him is a bar to this action. Stewart v. State, 15 Ohio St. 155. The direct question was so decided in State v. Meekins, 41 La. Ann. 543 [6 So. 822]. The general principle is also stated in 12 Cyc. 266, and is forcefully announced in the following language in 8 R. C. L. 152: “It may be stated as a general rule that where an indictment is quashed a/t the instance of the defendant, though after jeopardy has attached, he can' not thereafter plead former jeopardy when placed on trial on another indictment for the same offense. ’ ’

We find no error of the trial court in sustaining the demurrer tp the plea of former acquittal. The judgment will therefore be affirmed.

Chittenden and Kinkade, JJ., concur.


author: RICHARDS, J,

text:
    DAMAGES — EXPLOSIVES—INTEREST—INTERROGATORIES.
    [Ottawa (6th) Court of Appeals,
    April 27, 1917.]
    Chittenden, Richards and Kinkade, JJ.

      American Gypsum Co. v. Lake Shore & M. S. Ry.
    1. Operator of Gypsum Mine not Liable for Explosion of One Day’s Use of Dynamite in Thaw House.
    A company engaged in mining gypsum in which business it uses large quantities of dynamite is not liable for damages caused by the explosion of a quantity sufficient for its use for the day while being prepared for such use in a thaw house, in the absence of evidence of negligence.
    2. Refusal to Instruct that if Explosion is Purely Accidental Verdict Should be for Defendant, Erroneous.
    It is error in such case to refuse to instruct the jury that if the explosion was the result of pure accident and without fault on the part of anybody the verdict must be for the defendant. '
    3. Measure of Damages to Railroad Cars is Difference in Value Before and After Explosion.
    The measure of damages where railroad cars are injured by an explosion is not the amount expended in repairs, but the difference between the value of the cars immediately before the damage and their value immediately thereafter.
    4. Party May Introduce His Own Answers If Responsive to Interrogatories Annexed to Pleading.
    By virtue of the provisions of Sec. 11350 G. C., a party answering interrogatories annexed to a pleading may introduce his own answers in evidence, so far as they are responsive to the questions propounded, and contain competent testimony on the issues joined.
    5. Interest Dates from First Day of Term at Which Verdict Rendered Unless Action Brought During Such Term.
    In cases where a verdict is returned but judgment is not rendered thereon until a subsequent term of court, the judgment should provide for interest from the first day of the term at which the verdict was returned, unless the action was brought during that term, in which event the judgment should draw interest from the date the verdict was returned.
    [Syllabus by the court.]

      True & Crawford, for plaintiff in error.

      Graves, Stahl & Duff ', for defendant in error.

      Motion to certify record overruled, Lake Shore & M. S. Ry. v. Gypsum Co. 62 Bull. 315.

   RICHARDS, J,

The American Gypsum Co. is engaged in the mining of gypsum and the preparation, storage and shipment of gypsum products in this county, and was defendant in the court of common pleas in an action brought to recover damages for the destruction and injury of certain ears owned by and in the custody of the Lake Shore & M. S. Ry. These cars, on March 22, 1911, were on a side-track extending along and over the property of the gypsum company and were on that date damaged by an explosion of dynamite situated in a small shanty called a thaw house, owned and used by the gypsum company.

The trial resulted in a verdict and judgment in favor of Ihe railroad company in the amount of $964.67, and to reverse the judgment so rendered this proceeding in error is brought in this court.

The record discloses that in the mining and manufacture of gypsum products the gypsum company uses large quantities of dynamite, purchasing the same by the car load containing some eighteen thousand pounds, and that the explosive so purchased is stored in a magazine on the premises of the company located approximately 2,000 feet from the thaw house, which thaw house is near the track of the railroad company. The storage magazine itself did not explode but the damage was caused from an explosion in this small structure used for thawing the dynamite. The evidence is not clear as to whether any other structures were in the immediate vicinity of the place where this thaw house was erected.

The testimony indicates that dynamite freezes at a temperature of forty to fifty degrees Fahrenheit, and the practice of the company was to remove from the magazine to the thaw house a box of dynamite containing fifty pounds, so that the same might be thawed and made ready for use by the company during the day or night that it was so removed. The company used in its business two shifts of workmen, and this dynamite had been removed a few hours before the explosion and placed in this building for the purpose indicated. In the morning the practice was to bring in what dynamite was necessary for use during the day shift, and then again in the evening another quantity was brought in sufficient for use by the night shift. The thaw house was about six feet by eight and approximately six feet in height. It had galvanized siding and the roof was made of roof boards covered also with galvanized siding. Inside this building was a steam radiator used for the purpose of thawing the dynamite, the steam pipes coming from the boiler house 200 feet distant. In front of the radiator was a wdre cloth extending from the floor to the ceiling so as to prevent any dynamite coming in contact with the radiator. The practice was that after the dynamite had become sufficiently thawed it was carried away by the shot firers to the mine and there used.

So far as the record discloses, the cause of the explosion was unknown, and the vital question arising is whether liability exists on the part of the gypsum company under the circumstances stated and in the absence of negligence.

All the dynamite used by the company was shipped in over the tracks and along the siding of the railroad company and from there hauled to the store house from which it was removed as needed in the operation of the company’s business, to the thaw house and from thence to the mine.

The trial judge charged the jury following the lines indicated by the language of the Supreme Court in Bradford Glycerine Co. v. Woolen Mfg. Co., 60 Ohio St. 560 [54 N. E. 528; 45 L. R. A. 658; 71 Am. St. Rep. 740], that “the person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief, which includes nitroglycerine or dynamite, if it escapes or explodes, must keep it there at his peril, and when he does so he is prima facie answerable for all the damage that is the natural result of the explosion.” He further stated to the jury in that connection that the defendant could excuse itself only by showing that the explosion Swas due to the plaintiff’s fault, and that it has used ordinary care in the handling and use of the dangerous matter, or the act of God. Of course, the latter part of the charge mentioned is clearly wrong in that if it appeared that the explosion was due to plaintiff’s fault, the ■ defendant need not in addition show that it used ordinary care in the handling and use of the dynamite.

This criticism, however, does not dispose of the vital question involved in this case and that is, whether the rule of liability for the explosion of nitroglycerine announced in the decision of the Supreme Court to which reference has been made is applicable to the explosion of dynamite under the facts shown in this record. In the Bradford Glycerine Co. ease there were at the storage magazine, including the quantity being placed therein, more than seven hundred and fifty quarts of nitroglycerine, and the building was used, as its name indicates, for a place of storage. In the case now under consideration the explosive was dynamite, the evidence showing that the explosive .ingredient in which is nitroglycerine, and that the strength of the dynamite used by this company was only twenty per cent. It further appears that in the manufacture of dynamite when carefully and properly prepared, it is much less liable to explode from accidental causes than is nitroglycerine, which is in a liquid form, while the dynamite is a solid. Furthermore, the amount of the explosive was only fifty pounds or a little more, and if we compute only the weight of the explosive ingredient it would be a little more than ten pounds; and the evidence introduced tends to show that the amount of explosive in the thaw house at any one time was only that which would be reasonably sufficient for use in the operation of the mines for a portion of one day and for the reasonable conduct of the defendant’s business. The record discloses that, although the company in the conduct of its business at this place has used over one hundred cars of dynamite of eighteen thousand pounds each, it has never heretofore had an accidental explosion. '

Under these circumstances, and after a painstaking investigation of the authorities, this court is not able to apply to this case a rule that would hold the gypsum company liable without evidence showing negligence on its part. The Supreme Court said in the Bradford Glycerine Co. case, already cited, that nitroglycerine was recognized as a constant menace to the property in its vicinity. The evidence in the ease we bave under consideration would scarcely authorize that conclusion, so far as dynamite is concerned. At any rate it would go no farther than raise a question for submission to the jury, under proper instructions, whether the practices of the company in the thawing and handling of the dynamite were such as to constitute a constant menace to property.

The question was under consideration by the Supreme Court id Louden v. Cincinnati, 90 Ohio St. 144 [306 N. E. 970], which was a case to recover damages resulting from the use of explosives in blasting. In that case the Supreme Court, speaking through Donahue, J., use this language:

‘ ‘ The question presented is whether the owner of property may make use of high explosives on his own premises in the accomplishment of a lawful purpose, provided he uses due care, notwithstanding the necessary, natural or probable result thereof is to injure or destroy adjacent property.”

The rule indicated by the question propounded is an aid in determining whether the use of dynamite in the case at bar, in the exercise of due care, was such as to necessarily, naturally or probably result in the destruction or injury of adjacent property, and to be a constant menace thereto. It surely can not be stated, as a matter of law, that the handling of dynamite, under the circumstances disclosed, would come within the condemnation of the court as indicated in the 'two eases cited, but rather that its handling, as disclosed by the evidence, would raise a question of fact to be determined by the jury. In view of the very general use of dynamite as a commercial product, we are unable to apply, under all the circumstances, the rule announced by the Supreme Court in the Bradford case as applicable to nitroglycerine. One of the purposes in the manufacture of dynamite is to render the nitroglycerine used therein safer to handle, as well as more convenient, and in the accomplishment of that purpose various percentages of nitroglycerine are used in dynamite; but it will not do to say that because nitroglycerine in its liquid form is highly dangerous and a constant menace to adjacent property, that all grades' of dynamite, no matter how small the percentage of nitroglycerine therein, come within the language used by the Supreme Court in the case to which reference has been made. One of the prime objects for manufacturing dynamite is to provide a less dangerous explosive than nitroglycerine, and to further that purpose nitroglycerine is mixed with some solid and absorbent inert substance such as sawdust, wood fiber, charcoal or a silicious earth as is stated in the Encyclopedia Britannica. In defining the qualities of dynamite the Century Dictionary says that “The object of the mixture is to diminish the sensitiveness of nitroglycerine to slight shock, and so to facilitate its carriage without impairing its explosive quality.”

In a ease where the evidence is such as is contained in the record under review it must be left to the jury, under appropriate instructions, as to the liability of the company, and in determining this question the location and method of construction of the thaw house, the quantity of dynamite placed therein, the means employed to accomplish the thawing, and all other facts and circumstances bearing on the question of care or the want thereof by the company should be considered.

The most recent and exhaustive discussion which we have seen of the questions involved in this case may be found in 11 R. C. L. 651. An interesting ease fully annotated, shedding light on these questions is Henderson v. Sullivan, 16 L. R. A. (N. S.), 691 [236 C. C. A. 243, 159 Fed. 46]. A,ease involving a kindred question was carefully considered by the Supreme Court of Alabama and is entitled Whaley v. Steel & Iron Co., 164 Atl. 216 [51 So. 419; 20 Ann. Cas. 822].

See also:

Barnes v. Zettlemoyer, 25 Tex. Civ. Apps. 468 [62 S. W. 111]; Derry Coal & Coke Co. v. Kerbaugh, 222 Pa. St. 448 [71 Alt. 915]; Mayer v. Brudno, 35 O. C. C. 165 (16 N. S. 102).

In view of these authorities the language of the trial judge on the subject of liability constitutes prejudicial error.

On this same subject the gypsum company asked the trial judge to instruct the jury before argument, that if they found the explosion was the result of pure accident and without fault on the part of anybody, the verdict must be for the defendant. Tbe court refused to so instruct tbe jury and in so doing committed prejudicial error.

Tbe evidence introduced on the subject of damages related solely to tbe amount paid for repairs of tbe ears. Tbe true measure of damages would not necessarily be tbe amount paid for repairs but would be tbe'difference between tbe value of th'e ears immediately before tbe damage and tbeir value immediately thereafter. Tbe reasonable cost of repairs may often shed light upon tbe extent of tbe damage and thus be competent evidence, but it is only competent as tending to show tbe difference in value of tbe cars before and after the explosion. It is manifest that in some cases cars after being thoroughly repaired might be less valuable or they might be more valuable than before they suffered damage, and this clearly shows that tbe reasonable value of tbe repairs may not indicate the actual damage. The charge of the court does not touch the subject of damages, but on a retrial of the case the rule indicated, that the true measure of damages is the difference in the value of the cars before and after tbe explosion, should be adopted.

The answer filed by the gypsum company contains various interrogatories to be answered by the railroad company. These interrogatories were answered in writing by that company under oath, and the paper containing the answers filed in court. On the trial of the case the railroad company offered in evidence its own answers to the interrogatories, and these were received, over the objection and exception of the gypsum company, except as to number two which answer involves a conclusion. Section 11350 G. C. provides that such answers, so far as they contain competent testimony on the issues, may be used by either party. The plain language of this section authorized the railroad company to introduce these answers as a part of the testimony in the case, in so far as the answers did not go beyond the interrogatories propounded. In the judgment of this court the answers were properly received except the latter portion of the answer to interrogatory number four, which < answer contains matter not called for by any interrogatory.

The verdict was returned at one term of court and tbe judgment thereon not rendered until a later term, the trial court refusing to provide in the judgment as rendered that interest should be computed from the first day of the term at. which the verdict was returned. This constitutes error to the prejudice of the railroad company which has filed a cross-petition in error in this case. In cases where judgment is not rendered at the same term as the verdict is returned, the judgment creditor is not, by the delay of the court in rendering judgment, to be deprived of his right to interest and the judgment should, therefore, provide for interest from the first day of the term at which the verdict was returned unless the action was brought during that term, in which event interest would be computed from the return of the verdict.

The petition filed in the comon pleas court claims interest from the date of the damage to plaintiff’s property. In a case resulting in damage to personal property where the plaintiff is found entitled to recover, he is also entitled to interest to be computed from the date he suffers the damage. In personal injury eases, as this court has heretofore announced, interest is not properly allowed as such, but even in cases of that kind the lapse of time may be taken into consideration in assessing the damages to be awarded.

The judgment will be reversed and the cause remanded for new trial.

Chittenden and Kinkade, JJ., concur.


author: JONES (Oliver B.), J. Jones (E." H.), J.,

text:
    EMINENT DOMAIN — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Court of Appeals,
    June 19, 1916.]
    Laura B. McFarlan v. City of Norwood (City) and S. A. Headley, City Sol.
    1. Referendum Should be on the Ordinance to Condemn and not ort Preliminary Resolution.
    In proceedings for condemnation of land by a municipality, the ordinance to appropriate is the controlling act and it and not the preliminary resolution is the measure on which a referendum should be taken where the referendum vote of the people is desired.
    2. Repeal of Earlier Ordinance not Precedent to Operation under Later Ordinance Identical Except as to Overlapping Boundaries of Land to be Condemned.
    Where two or more ordinances have been passed by a municipal council appropriating strips of land to open a street between, substantially the same points, such strips not being identical but in part overlaying each other, the fact that the earlier ordinance has not been expressly repealed would not be sufficient reason to prevent proceedings under the last ordinance-
    Appeal.

      Hunt-, Bennett <& Utter, for plaintiff.

      O. F. Dwyer, City Sol., and S. A. Headley, for defendants.
   JONES (Oliver B.), J.

This is an action heard on appeal, wherein plaintiff, as the-owner of certain real estate in the city of Norwood under a lease with the privilege of purchase, seeks to enjoin the city of Norwood from proceeding to appropriate a strip of land through same for the purpose of opening a street called Crown avenue, between Station avenue and the Montgomery pike.

A petition has been filed by the city of Norwood in the court of common pleas against this plaintiff and the owner of the fee of said land, asking the court to cause a jury to be impaneled to make inquiry into and assess the amount of compensation to be paid by the city of Norwood for the strip of land appropriated by an ordinance of said city passed November 10, 3915, and that upon payment of the amount so assessed possession of the property so’appropriated be awarded to said city of Norwood.

It is sought in this proceeding to secure a permanent injunction against the city from maintaining and prosecuting said action in the court of common pleas. Such proceedings in injunction have been held to be a proper method of procedure, rather than seeking to make a defense in the appropriation proceeding itself. Erie Ry. v. Youngstown, 26 O. C. C. 679 (5 N. S. 332); Pittsburg, C. C. & St. L. Ry. v. Greenville, 69 Ohio St. 487 [69 N. E. 976].

One of the principal grounds upon which this action is based by plaintiff is that numerous resolutions and ordinances seeking to open Crown avenue have been from time to time passed by the city of Norwood, which remain unrepealed upon its records. These resolutions and ordinances provided for the opening of Crown street or avenue on similar but not on identical lines with that now sought to be carried out.

The first was an ordinance to condemn and appropriate, passed by the council of the village of Norwood, August 11, 1892; then a resolution of the city of Norwood dated July 18, 1904, declaring the intention of said city to appropriate certain land for the opening and extending of Crown avenue. This was followed by an ordinance of February 20, 1905, appropriating a similar strip for the same purpose. These ordinances and resolutions seem to have been repealed by a resolution or ordinance of October 16, 1905; and December 7, 1908, a resolution was passed by the council of the city of Norwood, declaring its intention to appropriate a strip of land through the same property for the purpose of opening and extending said Crown avenue from Station avenue to Montgomery avenue, and this resolution was followed by an ordinance to appropriate the same strip of land, passed July 6, 1909. On June 21,1915, a resolution was passed by the council of the city of Norwood, declaring its intention to appropriate for street purposes for the extension of Crown avenue a strip of land fifty feet wide, being part of that owned by plaintiff; and on November 10, 1915, an ordinance to appropriate the same property was passed, with instructions to the solicitor to apply to a court of competent jurisdiction to have a jury impaneled to make inquiry and assess the compensation to be paid for said property. The proceeding which it is sought to enjoin was brought under this last named resolution and ordinance, by the filing of the petition therein on November 24, 1915, in the court of common pleas, as above stated. After-wards, on December 20, 1915, the city council of Norwood passed an ordinance repealing the resolution of December 7, 1908, and on the same day passed another ordinance repealing the ordinance of July 6, 1909.

Plaintiff contends that the condemnation proceedings in the common pleas court should be enjoined because of the conflicting resolutions and ordinances of the city of Norwood, which provided for several different strips of land which in .part overlay each other and whose lines were not the same, and that the solicitor had no power to proceed under the last ordinance until all' the previous ordinances and the preceding resolutions had been duly repealed; and that the repeal under the ordinance of December 20, 1915, of the previous resolution of December 7, 1908, and ordinance of July 6, 1909, would not be effective because passed after the filing of the petition in the common pleas court under the final appropriation ordinance.

We do not deem these objections to the proceeding important. It is true that it was held in Grant v. Hyde Park, 67 Ohio St. 166, [65 N. E. 891], that condemnation proceedings begun under municipal legislation could not be affected by legislation subsequent to the filing of the petition in such proceedings. In that case the village of Hyde Park undertook to limit the condemnation proceedings with reference to a particular grade of the street about to be opened. In the instant case, granting that the subsequent repealing ordinance might not fee considered, the solicitor had brought his proceeding under the last condemnation ordinance, that of November 10, 1915. While at that time the ordinance of July 6, 1909, had not been explicitly repealed, in our opinion the passage of the later ordinance constituted an implied repeal. But even if that is not the ease, the solicitor was at least authorized to proceed under the last ordinance, and the fact that there might be a valid subsisting ordinance for some other condemnation unon the books, would not be a reason for staying proceedings under the last ordinance.

The other and main reason urged on Dehalf of plaintiff for restraining further proceedings in the condemnation case is that a referendum vote, upon the ordinance to appropriate under which such proceedings are brought, has been sought and unless interfered with will be held at the next general election.

An act providing for the initiative and referendum in municipal corporations was passed by the general assembly May 31,1911 (102 O. L. 521), although at that time no distinct provision for it appeared in the constitution. The amendments to Art. 2 of the constitution adopted September 3, 1912, made detailed provision for initiative and referendum as part ■of the legislative power of the state, and in Sec. 1/ reserved similar powers to the people of each municipality .to be exercised “in the manner now or hereafter provided by law/’ In this way the validity of the act found in 102 O. L. 521, was recognized, and the amendments of Secs. 4227-2 and 4227-3 R. C. (103 O. L., 211; 104 O. L. 239) were authorized.

By virtue of this legislation the people of the municipality become, with its council, an essential part of the law-making power and by the referendum may participate in all municipal legislation. Such participation is controlled and directed by this provision of the constitution and these statutes (Shryock v. Zanesville, 92 Ohio St. 375 [110 N. E. 937], and the rights thus given to the people should be fully upheld and protected by the courts.

On December 9,1915, there was duly filed with the auditor of the city of Norwood a referendum petition signed by more than ten per cent of the electors of the city of Norwood, ordering that said ordinance to appropriate land for the extension ■of Crown avenue, passed November 10, 1915, be submitted to the electors of the city of Norwood for their approval or rejection. It is agreed that such referendum petition was duly filed within the time and in the manner and form provided by law for referendum petitions as to said ordinance, and that a certification thereof was duly made to the deputy supervisors of election for Hamilton county, Ohio, for the holding of such referendum control by legislative action, such powers to be exercised in November, 1916.

The constitution of Ohio as amended September 3, 1912, provides in.Article 2, See. 1/, as follows:

“The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by la-w to control by legislative actions; such powers shall be exercised in the manner now or hereafter provided by law. ’ ’

At the time of the adoption of this section of the constitution the act of May 31,1911 (102 O. L. 521), in Sec. 2, provided as follqws:

“Any ordinance, resolution or other measure of a municipal corporation, granting a franchise creating a right, involving the expenditure of money or exercising any other power delegated to such municipal corporation by the general assembly, shall be submitted to the qualified electors for their approval or rejection in the manner herein provided, if within thirty days after the passage or adoption of such ordinance, resolution or measure by the council, there be filed with the clerk of such municipal corporation, a petition or petitions signed by fifteen per cent of the qualified electors of such municipal corporation,” etc.

This act was carried into Sec. 4227-2 G. C.; and as such was amended April 37, 1913 (103 O. L. 211), the first paragraph being as follows:

“Any ordinance or other measure passed by the council of any niunicipal corporation shall be subject to the referendum except as hereinafter provided. No ordinance or other measure shall go into effect until thirty days after it shall have been filed with the mayor of such municipal corporation, except as hereinafter provided.”

And by the same act See. 4227-3 G. C. was amended so that the first paragraph read as follows (103 O. L. 212):

“Whenever the council of any municipal corporation is by law required to pass more than one ordinance or other measure to complete the legislation necessary to make and pay for any public improvement the provisions of this act shall apply- only to the first ordinance or other measure required to be passed, and not to any subsequent ordinances and other measures relating thereto.”

On February 16, 1914, See. 4227-2 was again amended by act 104 O. L. 239, but the changes made therein are not material to the matter under consideration.

It is admitted by the solicitor of the city of Norwood that the matter of appropriating land for the opening of Crown avenue is a subject which, under proper proceedings, should be submitted to a referendum of the voters of the city, but it is contended by him that such a referendum has already been had under the resolution of council passed June 2, 1915, declaring its intention to appropriate for street purposes for the extension of Crown avenue and, therefore, under the provisions of Sec. 4227-3 G. G. a referendum of the ordinance of November 10, 1915, to appropriate said land for the extension of Crown avenue can not be had.

It is agreed that a referendum election upon said resolution of June 21. 1915, was held at the regular November election in 1915, resulting in a majority vote in favor thereof, the question submitted being, “Shall the resolution of the city of Nor-wood entitled ‘a resolution declaring its intent to appropriate for street purposes certain real estate for the extension of Crown avenue, passed June 21, 1915,’ be approved.”

It is further urged that one of the signers under the referendum petition on said resolution was T. J. McFarlan, the husband of the plaintiff, Laura B. McFarlan, and the solicitor claims that because of that fact the plaintiff is estopped from, bringing this action. There is nothing in the proof submitted, nor in the record, to show that T. J. McFarlan in any way represented the plaintiff in regard to said referendum, or, for that matter, in regard to this property.

Plaintiff, however, contends that the resolution of council declaring its intent, was merely a preliminary resolution and was not the proper subject of a referendum vote, and that therefore the referendum election upon it held in November, 1915, was without effect and in no way precludes or interferes with the referendum election which has been petitioned for to be beld November, 1916, ..upon the ordinance to appropriate. This requires a consideration of the law with reference to the appropriation of real estate hy municipal corporations.

The general appropriation laws as found in the Revised Statutes appeared in Chap. 3, Div. 7, Tit. 12, and Sec. 2235, R. S. provided that the council should order by yea and nay vote a resolution prepared declaring such intent and defining the purpose of the appropriation, and setting forth a pertinent description of the property. Immediately upon the introduction of such resolution and before its passage the mayor was required to cause written notice to be given to the owners or their agents of the property sought to be appropriated, such notice to be served by an officer and return made in the manner of service of summons in civil actions, and in case neither owner nor agent could be found notice by publication was provided for. No action was to be taken upon the resolution until such notice was given and then upon its passage the yeas and nays were taken; and after its passage provision was made for an application to the court to determine the amount to be paid for the property so taken.

In the street chapter, however, Chap. 13, Div. 8, Tit. 12, Sec. 2642, R. S. provided as follows:

“"When it is deemed necessary by the council of any municipal incorporation to open, extend, straighten, narrow, or ■widen any street, alley or public highway within the limits of such corporation, the council shall provide by ordinance for the same; such ordinance shall briefly and in general terms describe the property, if any, to be appropriated for such purposes; and the proceeding for such- appropriation shall be as provided in chapter three, division seven, of this title.”

Under the law as it then stood the courts held that the proper method to appropriate property for street purposes was by ordinance, and that a preliminary resolution as required under Sec. 2235 R. S. was not necessary. Tyler v. Columbus, 3 Circ. Dec. 427 (6 R. 224); Krumberg v. Cincinnati, 29 Ohio St. 69; Caldwell v. Carthage, 49 Ohio St. 334 [31 N. E. 602]; Longworth v. Cincinnati, 10 Dec. Re. 683 (23 Bull. 100); Strauss v. Cincinnati, 11 Dec. Re. 92 (24 Bull. 422).

The change in the municipal code which has been carried into the General Code of Ohio has retained in Chap. 3, Div. 3, Tit. 12, Sec. 3715 (which is practically the samo as Sec. 2642 R. S.), its language being as follows:

Section 3715. “When it deems it necessary the council may open, straighten, alter, divert, narrow or widen, any street, alley or public highway within the limits of the corporation. The council shall provide by ordinance thereof, which shall briefly, and in general terms, describe the part, if any, of the street, alley or public highway to be abandoned by reason of such change thereof, and the property, if any, to be appropriated for such purposes. The proceeding for such appropriation shall be as provided for the appropriation of property for other municipal purposes in this title.”

The provision in the appropriation chapter, and Chap. 1, Div. 3, Tit. 12, instead of continuing merely a resolution of intent to appropriate, has provided in Sec. 3679 6. C. for passage of such a resolution declaring the intent to appropriate of which one reading only is necessary under Sec. 3680, and after its passage notice is required to be served; and then after notice, council passes an ordinance which requires a two-thirds vote directing such appropriation to proceed. It is not until after the passage of the ordinance to appropriate that the solicitor proceeds to make application to the court. The passage of the ordinance effects the appropriation. The proceeding in court is merely to determine the compensation to be paid the owners. Under the present form of the statute the resolution declaring the intent is merely preliminary. The municipality is not committed to the act of appropriation until the passage of the ordinance.

The law in regard to street improvement furnishes, by analogy, some light upon this question. In making a street improvement the first preliminary step provided for is a resolution declaring the necessity of the improvement (See. 3814 G. C.; Sec. 2304 R. S.), and after service of notice, in order that property owners might be advised and might file any claims for damages they might suffer by reason of the improvement, if the council decide to proceed with the improvement it passes an ordinance for the purpose. (Sec. 3825 G. C.; Sec. 2316 R. S.)

•In the ease of Cincinnati v. Seasongood, 46 Ohio St. 296 [21 N. E. 630], it was determined that the lav/ in force at the time of the passage of the ordinance to improve, fixed the rights and liabilities of the owners of the property and of the city in regard to the manner of the assessment.

Upon the same reasoning it should be held that the ordinance to appropriate is now the controlling feature of the legislation for the' opening or extension of a street; and that the resolution declaring the intent, which precedes it under the present statute, must be deemed merely preliminary. It has been held in Long v. Portland, 53 Or. 92 [98 Pac. 1111], that the referendum as found in Oregon applying to municipal legislation does not include preliminary matters or transient orders. If a referendum vote is to be taken upon the question of the opening of a particular street, the ofdinance to appropriate is the step which should be submitted to a referendum, and any referendum taken upon the resolution or previous preliminary steps would not prevent such referendum upon the ordinance. Initiative Petition, In re, No. 2, New Jerusalem Proposition, 26 Okl. 548 [109 Pac. 823].

This conclusion is strengthened by the wording that has been used' in the different forms of the referendum statute. It will be observed in the original form of See. 4227-2 G. C. as found in 102 O. L. 521, the word “resolution” was included in addition to “ordinance or other measure” throughout the section in its different parts, while in the statute as found in 103 O. L. the words “ordinance or other measure” are used almost entirely to the exclusion of the word “resolution;” and in the act of 104 O. L. 238, the word “resolution” does not appear. Section 4227-3, upon which defendant relies, subsequently uses the word “ordinance” again and again. And as the case of Krumberg v. Cincinnati and the other cases construe See. 3715 G. G. as requiring an ordinance before a street, can be opened, it would seem that it is the “ordinance” rather than the “resolution or any other measure” that should be submitted to a referendum. Indeed, the action of council is usually either by resolution or ordinance, although it may act by motion or by-law or possibly by other form of procedure. Great difficulty is frequently experienced in determining just whether a particular action is a resolution or an ordinance. In determining this question we must rely generally upon the form of the statute and the definition there provided.

The evidence in this case shows that while a favorable referendum vote was taken upon the resolution, that a referendum petition has been duly filed under an ordinance to appropriate, has been received by the proper authorities'and filed with the election board, and will be voted upon at the next election. To permit this election to proceed will cause only a few months’ delay, and considering that the project of opening this street has been pending in the municipality since 1892, and has never reached the court until in this present proceeding, although numerous resolutions and ordinances stood for years unrepealed on the village record, it would seem better to permit the election .to proceed and thus test the desire of- the people understhe referendum vote, which appears to be taken at the proper stage on the municipal legislation. To hold otherwise -would curtail rather than extend the right of referendum which has been obtained for the people under the recent amendment to the Constitution and the legislation had thereunder, which should be favored rather than restricted.

Judgment will therefore be entered for the plaintiff as prayed in the petition.

Gorman, J., concurs.

Jones (E." H.), J.,

dissenting.

The question here is one of statutory construction. The words "ordinance or other measure” found in See. 4227-2 and 4227-8, G. G. include the resolution which we all agree is the first step in a proceeding to' condemn property for street purposes.

The electors of the city of Norwood have voted on the resolution adopted by council as the first legislative action in the Crown avenue matter, and there is no authority in law for a vote on the ordinance or any subsequent measure in connection with that improvement. On the contrary, Sec. 4227-3 G. C. expressly forbids more than one vote and that on the “first ordinance or other measure required to be passed.”

If there can be any doubt or ambiguity about these Secs. 4227-2 and 4227-3 G. C. when standing alone, it is removed when we study their language, and especially that of the latter in its application to the initiative provision found in Sec. 4227-1. This section provides for an initiative petition proposing “an ordinance or other measure” to be submitted for approval or rejection. Sec. 4227-3 says that—

“the provisions of this act shall apply only to the first ordinance or other measure required to be passed and not to any subsequent ordinances and other measure relating thereto.”

As the resolution is a necessary step and the first step required to be taken in a street matter such as this, it follows that it alone would be initiated, and it only submitted to the voters; and that after it was successful at the polls all other necessary measures would follow without initiative or referendum.

Under the law as construed by the majority opinion however, the matter could again be brought before the voters at a subsequent election by a referendum vote on the ordinance notwithstanding the fact that the people had already ordered the improvement by a majority vote. In my opinion this is what the decision in this case leads to, and I am quite sure such is not the law, and that in a proceeding to open a city street the initiative and referendum provisions of our code only operate upon and apply to the preliminary or first required step, viz., the resolution,


author: HOUCK, J.

text:
    TRUSTS.
    [Stark (5th) Court of Appeals,
    March 22, 1917.]
    Powell, Houck and Shields, JJ.
    Rose Wagner v. Mahala Wagner et al.
    Clear and Convincing Evidence Required to Establish Trust in Land Based on Claim of Money Advanced for Purchase.
    A trust can he grafted on land, held hy a deed absolute on its-face, only by evidence which is clear and of the most convincing character, and a claim of a lien on the proceeds arising from the sale in partition of land so held, on account of money advanced for its purchase, will be denied where the evidence as to the claim falls short of being of a clear and convincing character.
    [Syllabus by the court.]
    Appeal.

      C. C. TJpham, for plaintiff.

      S. F. Bowman and Amerman & Mills, for ‘defendant.
   HOUCK, J.

This ease was submitted to this court on the pleadings and the evidence as contained in the transcript of same taken in the court below. The pleadings in substance are as follows:

The plaintiff, Rose Wagner, filed her petition in the common pleas court of Stark county, Ohio, on April 11,1916 alleging that she had a legal right and was seized in fee simple of certain, real estate described in the petition; that the defendant, Mahala i Wagner, was the owner of the other undivided half of said premises, and that the defendant, John S. Wagner, was the husband of said Mahala Wagner, and that the defendant, James Hindman, claimed to hold a mortgage on said premises. The prayer of the petition was that- the defendant Hindman be required to set up his mortgage or be forever -barred from doing -so, and that said premises be partitioned and plaintiff’s share set off to her, or said premises be sold and her share be awarded to her in money, subject to a certain lease of said premises which was excluded, and still exists, but in no way interferes with the partition proceedings in this ease.

The defendant, James Hindman, filed an answer and cross-petition setting up bis mortgage on said premises, amounting to $2,884.37, with interest, which he claimed was the first and best lien on said premises, and prayed judgment for the same and the sale of said premises, and that the proceeds of said sale be applied on his mortgage.

The defendants, Mahala Wagner and John S. Wagner, filed a joint answer and cross petition in which.they admitted that plaintiff held the legal title to the one-half of said premises, and that the defendant, Mahala Wagner, held the legal title-to the other undivided one-half of said premises, and that the defendant, John S. Wagner, was the husband of said Mahala Wagner and had an inchoate right of dower in said premises, and further admitted that the mortgage of the defendant, James. Hindman, was a good and valid lien against the premises, and, further answering, denied each and every other allegation in plaintiff’s petition not expressly admitted to be true. In their cross petition Mahala Wagner and John S. Wagner averred that at the time said premises sought to be partitioned were purchased that the only consideration that was paid at that time was $1,000, which was paid by the defendants, Mahala Wagner and John S. Wagner; that on April 21, 1907, defendants further paid the sum of $800 on the purchase price of the premises, and since March 23, 1905, at which time the premises were purchased, they paid all the taxes, which amounted to $273.30; that ever since March 23, 1905, the plaintiff, Rose. Wagner, occupied the premises as her home, and had not accounted to these answering defendants for any of the rents and profits of the same, and prayed for an accounting between the parties, and that these defendants recover out of the proceeds of the sale of the lands the amounts they paid on the purchase price, together with the taxes and interest at six per cent and that they be decreed their interest in said property in money, and for such other relief as they be entitled to in the-premises.

The plaintiff filed a reply to the cross petition of the .defendants, John S. Wagner and Mahala Wagner, the same being in the nature of a general denial as to all the material allegations, contained therein.

Upon tbe issues raised by these pleadings and tbe evidence, tbe case was submitted to this court for its determination.

Tbe contention of tbe defendants is that they paid all tbe money that bad been paid on tbe lands in question, saving and excepting possibly tbe sum of about $500 ; that they also- paid the taxes; and asked that out of tbe proceeds of tbe sale of said lands that they be reimbursed, as an accounting between tbe parties hereto shall show and be determined by tbe court. In other words, they seek to have impressed upon tbe fund arising from tbe sale of said premises a trust in their favor to tbe amount claimed to have been paid by them on said lands and for tbe taxes.

We think tbe law is well settled in this state as to what constitutes an express trust, as well as an implied trust, and tbe evidence necessary to sustain such. It will be seen that from tbe issues raised by tbe pleadings and tbe evidence submitted in support of same that it is attempted to engraft a trust on lands held by a deed absolute on its face.

A trust can not be established by mere conjecture or from tbe mere circumstances and surroundings of any particular ease or state of facts, but must be established by clear, certain, definite and positive evidence, in proof not only of tbe existence of tbe trust at tbe time of tbe conveyance, but also of its terms and conditions. Therefore, tbe evidence necessary to engraft a trust on lands held by deed which is absolute on its face, or the proceeds arising from their sale, as claimed in tbe present case, must be clear and of tbe most convincing character. This rule of law is laid down in tbe case of Boughman v. Boughman, 69 Ohio St. 273 [67 N. E. 430], tbe syllabus being as follows:

“Equity requires that parol evidence, to engraft an express trust in lands upon a deed .absolute, shall clearly and convincingly show that contemporaneously with tbe execution of tbe deed the terms of the trust were declared and tbe beneficiaries designated. ’ ’

Applying tbe rule of law as herein laid down to tbe proven facts of the ease at bar we are bound to find that tbe claim of the defendants is not well founded as to their being entitled to recover for tbe moneys alleged to have been paid by them on the real estate in question. We are bound to arrive at this conclusion alter a careful examination of all the testimony and evidence offered in this case, and we have no hesitancy in saying that it is not of that clear, positive character and nature as to warrant a court to find that a trust had been created in the lands in question or in the proceeds arising therefrom.

But how stand the issues in this case as to the taxes and rents and profits? Without discussing these questions further than to say that we are of the opinion from the evidence in the case and the law governing the facts so established by the evidence, we find that Rose Wagner should account for her share of the taxes to John S. Wagner from April 18, 1912, to November 13, 1913, and to account to Mahala Wagner for one-half of the rents and profits from said lands from the date of the deed from John S. Wagner and Mahala Wagner to Rose Wagner, being November 13, 1913.

We further find that the claim of James Hindman as to the amount due him on his notes and mortgage, as set forth in h-is answer and cross petition, are undisputed, and therefore find that he is entitled to a decree in his favor as prayed for in his cross petition. We further find that the plaintiff is entitled to a decree in her favor for partition of the real estate described in her petition as prayed for therein.

A decree and judgment accordingly, and an entry may be drawn by counsel in accordance with the findings herein

Powell and Shields, JJ., concur.


author: JONES, (E. H.), J.

text:
    BILLS OF EXCEPTIONS — RECEIVERS.
    [Hamilton (1st) Court of Appeals,
    May 8, 1916.]
    Jones, Jones and Gorman, JJ.

      D. T. Williams Valve Co. et al. v. David T. Williams.
    1. Leaving Bill of Exceptions with an Unauthorized Clerk — Not a, “Filing” of the Bill.
    The leaving of a bill of exceptions with some deputy in the-employ of the cleric of courts not authorized to receive it, with instructions to said deputy to place it on file, does not amount, to a filing of the hill, and a motion to require the clerk to-stamp the bill as “filed” does not lie where not made until, subsequent to the statutory time for the filing of a bill.
    2. Receivership Ancillary Relief not Primary Appointment.
    To grant a prayer for appointment of a receiver where the appointment appears to be an end in itself, and is not ancillary to other and ultimate relief within the provisions of Secs.. 1 11894 and 11398 G. G., is erroneous.
    ERROR.

      Frank H. Kunkel and Pogue, Hoffheimer <& Pogue, for plaintiffs in error.

      Nelson B. Cramer and Charles W. Baker, for defendant in. error.

      Motion, to certify record overruled, Williams v. Valve Co. 61 Bull. 196.

   JONES, (E. H.), J.

This is a proceeding in error brought to reverse an order of the insolvency court of Hamilton county appointing a re* ceiver for plaintiff, the D. T. Williams Valve Company, a corporation.

The appointment was made by the court below pendente lite, upon a motion for a receiver filed on September 18, 1915, contemporaneously with the amended petition upon which the action is based. Upon the day the cause was set for hearing in this court a motion was filed by the defendant in error to affirm the judgment and dismiss the petition in error, for the reason that no bill of exceptions had been filed' and that the time within which same might be filed had expired. This was followed by a motion of plaintiffs in error asking the court to order the clerk to stamp the bill of exceptions as “filed” in the court of appeals. This latter motion was based upon the claim made by counsel that the bill of exceptions had been left in the hands of one of the deputies of the clerk of the courts, on duty in the insolvency court room, with instructions to have the same filed. It is claimed that this was in effect a filing of the bill of exceptions; that the stamping on the same was a ministerial duty only and it having been neglected the rights of plaintiffs in error could not be jeopardized thereby.

We find that this latter motion is not well taken. It does not appear from the evidence that the matters and things claimed by counsel for plaintiffs in error, admitting same to be true, amount to a filing of a bill of exceptions. The usual manner of filing papers is by taking them to the clerk’s office and there handing them to the clerk or one of his deputies. To grant this motion would be in effect to hold that it is only necessary to hand a paper or pleading or bill of exceptions to some one of the many deputies, stationed in the different court rooms, in order to make the filing complete. This would be an impractical and altogether dangerous rule to establish.

As already announced from the bench, the motion to affirm filed by defendant in error must be overruled, as the petition in error contains assignments of error not based upon the bill of exceptions. We refer especially to the first three grounds of error, which are as follows:

“1. That said court erred in overruling the demurrer of the D. T. Williams Valve Company, plaintiff in error.
“2. That said court erred in holding that it had urisdietion to appoint a receiver upon the motiofi of defendant in error.
“3. That said court erred in holding that the facts set out in the petition in said cause were insufficient in law to justify the judgment and order appointing a receiver for the D. T. Williams Valve Company.”

These alleged errors we may pass upon without resorting to the bill of exceptions. And upon consideration we find that they are well sustained by the pleadings, journal entry of the court appointing the receiver, statutory provisions and several well-considered Ohio cases.

From an examination of the original and amended petition herein it seems clear that the pleader was seeking principally and primarily the appointment of a receiver for this concern. In each instance the prayer begins thus: “Wherefore plaintiff prays that a receiver be appointed,” etc. There is no authority in our statute for the appointment of a receiver except in a proceeding where some other relief is sought and as ancillary to such proceeding and incidental to the relief therein sought. A careful reading of the amended petition in this case must convince any one that there is no foundation laid, nor are there any facts stated which would justify any court in finding that it is desirable, necessary or advisable to dissolve this corporation and wind up its affairs.

It is true that the petitioner predicts dire things which are going to happen to this corporation if its present management is permitted to remain in charge of its affairs, but these statements are not predicated upon allegations of indebtedness, insolvency or inability to meet its obligations which if proven would warrant a court in taking charge of or discontinuing the business of said corporation.

Mr. Williams, the plaintiff below, is a large stockholder, but he is the only one of the stockholders complaining in this action. Nearjy all of the remaining stockholders, representing the majority of the stock, and many of the largest creditors of the concern have voluntarily appeared in this action to resist the prayer of the petition and of the amended petition they having filed in the court below intervening petitions in which they pray for a dismissal of the amended petition and a denial of the relief sought therein.

The entry of the court below appointing a receiver is in the form of a finding óf facts and of law separately stated. As its finding of fact the court says:

“that certain litigations concerning which orders hereafter will be made, should be begun by and on behalf of the defendant corporation in order to conserve and protect its interests; that there has not been a proper management and conduct of tbe business of said corporation; that there is danger of the assets and property of said corporation being lost, wasted and dissipated, and there is likewise danger of its business being injured, depressed or diminished because of want of proper care, control and management; and all of this pending the determination of important questions of vital interests to the existence and welfare of the corporation and of its stockholders, minority as well as majority, to be determined on the final hearing of this cause, as well as determined in suits which may hereafter be ordered to be brought by the receiver in the interest and in behalf of the said corporation, and all of its stockholders, unless the matters pertaining thereto are settled and adjusted without suits or litigation; and that an injunction or injunctions issued by this court now would not be of any avail in protecting the property and the rights of the corporation and of the stockholders.” * * *

Following this the court proceeds to grant the motion for a receiver pendente lite, naming Mr. Philip O. Geier as such receiver, and defining his duties. It must be presumed that the finding of the court that “there-is danger of the assets and property of the said corporation being lost, wasted and dissipated, and there is likewise danger of its business being injured, depressed and diminished because of want of proper care, control and management” is based upon evidence offered in support of the allegations of the amended petition. These allegations have reference to certain transactions of the corporation through its officers, chief among which are the purchase of an automobile and accessories therefor for personal use, and the issuance of a certificate of one hundred and fifty shares of stock to one D. M. Forker, which certificate was pledged with the Sharon Savings & Trust Company as security f or a loan of $15,000, which sum was loaned to and used by the corporation, and the obligation to the bank assumed by it.

Assuming that all these allegations were fully and un-qualifiedly proven, we are of the opinion that such a showing would not warrant the finding that there was danger of the assets and property of the said corporation being lost, wasted and dissipated, and the other dire things contained in the finding and decree of the court below. The allegations of the amended petition, in other words, are not sufficient to constitute a cause of action for a dissolution of this corporation, the sale of its assets, the closing up of its business and distribution of the proceeds among the stockholders.

As above stated, we do not understand from a reading of the petition and the amended petition that such a result is really contemplated or sought by the plaintiff in instituting this proceeding. Nor does it appear from the entry of the ■court below that in making the temporary appointment of a receiver the court had determined that it was necessary or in the interest of the stockholders to so dissolve the corporation and terminate its business. There is no authority in the statute or elsewhere in the law for the appointment of a receiver pendente lite as made by the court below, with the powers and duties with which this receiver was entrusted. In order to appoint a receiver, either permanently or pendente lite, there must be first a finding by the court that the ease is one in which under the statute a receiver may be appointed. In an action against a corporation before a receiver can be appointed the case must fall within the provisions of Sees. 11894 or 31398 G-. C. Courts will not and should not appoint a receiver unless in a proper action for other and ultimate relief the appointment of such receiver is necessary and ancillary to the main and ultimate relief sought. The naming of a receiver is not regarded as an end in itself, but only as a means to better secure a necessary and ultimate end.

In support of this view we will refer, without quoting therefrom to the case of Cincinnati, H. & D. Ry. v. Duckworth, 1 Circ. Dec. 618 (2 R. 518); also to a decision of this court of appeals in Wiedemann Brew. Co. v. Herman, 38 O. C. C. 362 (20 N. S. 187); also, Callahan v. Ice Co. 7 Circ. Dec. 349 (13 R. 479); 34 Cyc., 29; Cheney v. Cycle Co. 64 Ohio St. 205, 214 [60 N. E. 207]; Cincinnati, S. & C. Ry. v. Sloan, 31 Ohio St. 1.

The amended petition below not having stated a cause of action, the demurrers to it should have been sustained, and for error in not-sustaining the same the judgment of the court :below will be reversed.

We are further of the opinion, inasmuch as the entry of the court below purports to be and is in effect a finding of fact-upon which the conclusions of law are based, concluding with the naming of a receiver, that the judgment of the court below is contrary to law. as is made evident by such finding and decree. ■

Judgment reversed and cause remanded.

Jones, O. B., and Gorman, JJ., concur.


author: POWELL, J,

text:
    GAS AND OIL.
    [Licking (5th) Court of Appeals,
    1914.]
    Voorhees, Powell and Shields, JJ.
    Columbus Nat. Gas Co. v. J. W. Dunlap et al.
    Words “Completed Well” Mean Productive Well to Reduce Annual Rental Prior to Such Completion.
    In a lease of land for exploration for gas and oil, wherein it is stipulated that the lessee shall pay $200 each year in advance for the product of each well from the time of its completion, and in case no well is completed within a specified time the lessee shall pay a rental of $580 for each year such completion is delayed thereafter, and each completed well shall only reduce the land rental $200, the words “completed well” have reference to a productive well and not to a dry hole, and the lessee is not entitled to a reduction of $200 in his rental because of the completion of an unproductive well.
    ERROR.

      •Fitzgibbon, Montgomery & Black, for plaintiff in error.

      J. M. Swartz, for defendant in error.
   POWELL, J,

On September 20, 1907, the plaintiff in error and. the defendants in error entered into a contract in writing whereby the said defendants in error leased to plaintiff in error 256 acres of land in this county, and which is described in the petition, for the purpose of exploring the same for oil, gas or water, and for prodxreing and marketing the same, if any oil or gas were found thereon.

The conditions of said lease so far as they relate to the present controversy, are as follows:

1. The léase was for the period of five (5) years “and as. much longer as oil or gas is found in paying quantities. ’ ’

2. “If gas only is found, second party (plaintiff in error) agree to pay $200 each year in advance for the product of each well, from the time of the completion of same.”

3. “In case no well is completed on or before February 13, 1908, second party shall pay to the first party (defendants in error) five hundred and eighty dollars for each year thereafter such completion is delayed, payable annually in advance. ’ ’

4. “It is further provided that each well completed shall only reduce the land rental two hundred dollars.”

Plaintiff in error completed two wells, that produced gas, and by payment of well rentals of $200 each, it reduced the land rentals to $180. It then completed a third well which did not produce gas or oil, so that no well rentals were due from it, and then refused to pay the $180 land rental due February 13, .1913, all other rentals having been paid to that date. The. defendants in error brought suit to recover said sum. The question is raised by demurrer to the answer which sets out the various payments of rentals, and the refusal to pay the $180 land rental after the completion of the third well without finding gas or oil, and while continuing to occupy said lands under said lease.

There are two kinds of rentals provided for in the contract — $580 land rentals, and well rentals of $200 per year in advance for the product of each well, when gas only was found. Bach well completed should only reduce the land rental $200. The completion of two Avells reduced the land rentals to $180,. and the completion of the third well is claimed to have reduced the land rental to nothing, although such third well is not productive of either gas or oil. But there being no product from such well, plaintiff in error claims it was not obliged to pay any well rental therefor.

■What is the true construction of the contract, and what is the reasonable construction of the same? rr

In tbe opinion of the court this is not what was intended by the parties when the contract was executed. We think that the parties had in contemplation two kinds of rental or source of income, one of which should never be less, while the lease was in force, than $580, while the other might go to any limit that the supply of gas would warrant. In the in-tendment of the parties, as it appears to the court, a “completed well” does not mean a dry hole in the ground, but a productive well as a source of income to the plaintiffs below. The expression “if gas only is found” contemplates that something of value must be found, otherwise it would be as reasonable for defendants in error to claim that plaintiff in error should pay $200 for the product of each completed well, even though that product was nothing but water. Neither position is tenable.

There was no error in the action of the court of common pleas, in sustaining said demurrer, and its judgment will be affirmed, and the cause will be remanded for exception.

Voorhees and Shields, JJ., concur.


author: JONES, (O. B.), J.

text:
    BANKS AND BANKING.
    [Clinton (1st) Court of Appeals,
    June, 1914.]
    Swing, Jones and Jones, JJ.
    J. C. Cumberland et al. v. Farmer’s Exchange Bank.
    Depositor Charged Individually by Bank with Checks of Partnership Given by Him for Firm.
    Where a bank had charged a depositor against his account checks issued in payment of the expenses of a partnership of which he was a member, and where his bank book was balanced and his checks returned several times subsequent thereto and no protest was ever made until suit had been brought against him on a note which was renewed after the canceled checks had been returned to him. Held: That a jury was justified in a verdict against him.
    Error.

      Tí. S. Pulse, for plaintiff in error.

      G. W. Swain, for defendant in error.
   JONES, (O. B.), J.

While there were other points of error urged in the case, the one chiefly relied upon by counsel was that the judgment was against the weight of the evidence and was not sustained by sufficient evidence.

The checks which defendant claimed had been without authority charged against his account by plaintiff below were checks drawn by one Morris for expenses of a business in which he was engaged as a partner with the defendant below, and the bank book was balanced several times and the cheeks returned without a protest from the defendant. No claim was made that they were improperly paid until after the filing of this suit and' the note upon ‘which suit was brought was renewed by defendant below without objection-after the payment of these checks and without any claim for reduction on account of any unauthorized checks.

We therefore think the jury were justified in their verdict as returned, and as a careful examination of the record fails to disclose any errors prejudicial to the plaintiff in error, the judgment is affirmed.

Swing and Jones, (E. H.), JJ., concur.


author: BY THE COURT,

text:
    INTOXICATING LIQUORS.
    [Lucas (6th) Court of Appeals,
    December 20, 1916.]
    Chittenden, Kinkade and Richards, JJ.
    In re Toledo Residence Local Option Petition.
    1. Hearing on Petition Submitted not Suspended by Filing Second Petition Containing Greater Number of Signatures.
    The language of Sec. 6145 G. C. providing for local option in residence districts and directing that the petition shall be granted which has the greatest number of electors’ signatures, does not require a judge who has commenced the hearing on a petition, to suspend the same when a second petition is filed during such hearing containing a greater number of electors’ signatures.
    2. Publication in Two Papers of Opposite Politics of Notice of Hearing of Residence Local Option Petition.
    The requirement of Sec. 6151 G. C. that the notice shall be published in two newspapers of opposite politics is substantially complied with by a publication in the Toledo Blade and in the Toledo News-Bee, the object of the publication being to give notice to the public.
    3. Filing Certificate of Findings not Mandatory.
    The requirement of Sec. 6152 G. C. that the judge shall cause a certified copy or certificate of his findings, together with the original petition, to be filed with the clerk of the municipal corporation within forty days from the filing of the petition with him is directory only and not mandatory.
    4. Satisfactory Boundaries for Residence Local Option Petition.
    The boundary lines set forth in a local option residence district petition being sufficiently definite to describe the land for purposes of conveyance, the petition is not defective although one line was a prolongation of a street line beyond the terminus of the street.
    5. Bill Boards on Vacant Property not Business Property.
    Vacant property on or in front of which bill boards have been placed by a corporation engaged in out door advertising is not business property within the meaning of the statute.
    6. Official Registers Prima Facie Evidence of Residence or Local Option Petitioner.
    The official registers of electors of the district are competent evidence and sufficient to make a prima facie case of residence within the district for the requisite statutory period.
    [Syllabus by the court.]

      Charles S. Northup, J. A. White and Cornell Schreiber„ foi* the petitioners.

      Smith, Baker, Ejfler <& Allen, contra.
   BY THE COURT,

On the hearing of the above matter before the Honorable John P. Mantón, judge of the court of common pleas, it was. found and determined that the petition was sufficient. Informal written application has been made to this court by certain qualified electors opposing the petition, for leave to file a petition in error to reverse said judgment, under Sec. 6164 G. C.. This written application specifies five claimed grounds of error,, and a copy of the same has been furnished to counsel for the petitioners. We have heard arguments from counsel on both sides on the motion for leave to file this petition in error and will briefly announce the conclusions of the court.

First. It appears from, the application made herein that after the petition which was heard and decided had been filed with the judge of the court of common pleas, and while the same was on hearing before said judge, a second so-called dry petition was filed with a judge of said court, and it is contended that, by virtue of the language contained in Sec. 6145 G. G., the judge was obliged to hear and examine said second petition and to decide as to the sufficiency thereof before disposing of, or attempting to dispose of, the first petition. This second petition does in fact contain the names of a greater number of resident electors than the first petition. The judge before whom the first petition was pending having begun the hearing thereon and the same having proceeded for substantially a week, was not required to suspend the héaring or delay the decision thereof and take up the hearing of the second petition which had been filed. There is no evidence in the case of any undue haste in proceeding with the hearing under the first petition. A petition is not pending within the meaning of the above section until it is filed and publication thereof made, and even then the pendency of such second petition will not justify the suspension of the hearing or decision of a prior petition if the hearing thereof was commenced before the second petition ■was pending.

Second. The second claimed error is that the publication of the first petition was insufficient, notice thereof having been published in the Toledo Blade and in the Toledo News-Bee. The object of the publication is to give notice to the public of the pendency* and prayer of the petition. We hold that the publication in the papers above named was a substantial compliance with the statute.

Third. Section 6152 G. C., provides that the judge shall ■cause a certified copy, or certificate of his findings, together with the original petition, to be filed with the clerk of the municipal corporation or council in not more than forty days after the filing of the petition with him. By reason of the large number of witnesses to be examined, the trial on this first petition was not completed within the time specified, and it is insisted that after the time had elapsed the judge was without power to render his decision. The statute referred to is intended to expedite the disposition of controversies arising on such petitions, but the requirement for the filing of a certificate of the decision is directory only and not mandatory.

Fourth. The fourth contention is that the judge erred in holding the boundary lines given in the petition sufficient, it being claimed that the territory was not in all respects bounded by a street, corporation or other well recognized lines or boundaries. In one instance the line was a prolongation or projection of a street beyond the terminus of such street. We hold the petition is not fatally defective in this respect. The boundary as given is sufficiently definite to have conveyed the property if the description given were embraced in a deed thereof.

Under this same heading it is urged that vacant property, on or in front of which were placed bill-boards of a corporation ■engaged in outdoor advertising, should be counted as business frontage. The judge before whom the petition was pending held that such frontage could not be considered as business frontage. In so holding he committed no error.

Fifth. The fifth and last specification of error is based on the contention that with respect to substantially one hundred and fifty names on the petition, the only evidence as to the term of residence in the district consisted of the registers of ejectors. It appears that the registers for that district for the years 1915 and 1916 were introduced in evidence. The judge before whom the petition was heard held that these registers were competent and sufficient evidence to make a prima fade ease of residence within the district for the statutory period. “We hold that the judge in so ruling committed no error.

No good cause being shown for granting the motion for leave to fife a petition in error, the same will be denied.


author: GORMAN, J.

text:
    EVIDENCE — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Court of Appeals,
    February 28, 1916.]
    Jones, Jones and Gorman, JJ.

      Etta M. Dietz v. Cincinnati (City).
    Previous Accident at Same Place and from Same Cause Competent to Show Knowledge of Municipality that Dangerous Condition Existed.
    Evidence in an action against a municipality for injuries from falling into a manhole, alleged to have been covered with a lid which tilted when stepped upon to the effect that other persons had fallen into the same hole, previous to the accident to plaintiff is admissible for the purpose of showing constructive notice to the city of the defective and dangerous condition of said lid, and its exclusion is prejudicial.

      Thos. L. Mi-chie, James J. McOartin and U. P. Karch, for plaintiff in error.

      Walter M. Schoenle, City Sol, and Saul Zielonha, for defendant in error.

      Motion to certify record, Cincinnati v. Dietz, 61 Bull. 183.

   GORMAN, J.

Plaintiff in error brought an action against the defendant in error in the superior court of Cincinnati to reeover damages for personal injuries claimed to have been sustained by her by the turning of an. iron lid or covering on the manhole of a sewer inlet in the sidewalk on Watson street in the city of Cincinnati. She claimed that in walking along the sidewalk she stepped on the side of this iron covering, and by reason of the same being ’defective and worn it turned under her foot, causing her to be thrown into the manhole, resulting in serious injuries. A verdict was returned for defendant and judgment was entered thereon; error is prosecuted to this court to reverse the judgment.

The bill of exceptions before us does not purport to contain all the evidence, and is in the short, narrative form. It recites that the evidence tended to show that on two different occasions before the date of the fall suffered by the plaintiff, to-wit, December, 1911, and four years prior to the trial, other persons had stepped upon the said lid, and it had turned and caused them to fall, and that said lid and sewer inlet were in practically and substantially the same condition when the plaintiff fell as the lid had been at the different times when it had tilted, on former occasions and caused other persons to fall when it was stepped upon.

Objection is made to the general charge of the court with reference to this evidence. The language of the court referred to is as folloAvs:

“There was certain evidence in this case tending to show that other persons had fallen through this sewer top, and the time of such incidents was given in the testimony of certain witnesses. I will say to you that the fact, if fact it he, that certain persons had fállen at prior d'átes does not ténd to show; notice to the city of Cincinnati of a condition of defect, or of any condition at that time. This evidence you will take as bearing only upon the question of whether or not, if you find the defect to have existed at the time of plaintiff’s accident, such defect did actually exist at these prior times. In other words, the testimony, to which I refer bears not upon notice to the city, but bears, as I say, upon the condition of the sewer top and the length of time for which such condition existed.”

A general exception was taken to the charge of the court, and the sole ground of errqr complained of is that that part of the general charge above set out was prejudicial to the plaintiff in error, and requires a reversal by this court of the judgment below.

In tbe ease of Ashtabula v. Bartram, 2 Circ. Dec. 372 (3 R. 640), it is beld that:

“Testimony that other vehicles and persons had been precipitated down the hill, at the point in question, at other and prior times, and when the fence was in the same condition substantially as when the accident to the plaintiff occurred, is, in such case, admissible to prove the dangerous character of the place for want of such barrier, and knowledge thereof by the defendant; but not to prove negligence on the part of the defendant, nor care and prudence on the part of the plaintiff. ’ ’

In Brooklyn Street Ry. v. Kelley, 3 Circ. Dec. 393 (6 R. 155), it was held:

• “It is proper to show that other cars had left defendant’s track at or about the place where the accident complained of occurred, for the purpose of .showing notice to defendant of the liability of cars to leave the track at that point, and also of showing the dangerous condition of the track at that point.”

In Circleville v. Sohn, 11 Circ. Dec. 193 (20 R. 368), it was held:

“In an action against a municipal corporation to recover damages for an injury alleged to have been caused by slipping and falling at an alley crossing, and evidence having been offered tending to show that the alley crossing had been substantially in the same condition for a number of years, and that during that time divers persons had slipped or fallen at that point, the court should at the time of receiving said testimony, then instruct the jury that it,, can only be used by them for two purposes : First, as tending to show the defective condition of the alley crossing, at the point where the1 plaintiff claimed to have-received her injury; and, second, as tending to show that the city authorities had knowledge or should be charged with knowledge of such defective condition.”

The same rule is laid down in Findlay Brewing Co. v. Bauer, 50 Ohio St. 560 [35 N. E. 55; 40 Am. St. Rep. 686], where the court says:

“Such evidence is only competent to prove the defective character of the machine, and the employer’s knowledge of the fact. ’ ’

The same rule is laid down in the following .cases: Evans v. Railway, 213 Fed. 133 [129 C. C. A. 375], (a decision of .the U. S. circuit court of appeals of this district) ; District of Columbia v. Armes, 107 U. S. 519 [2 Sup. Ct. 840; 27 L. Ed. 618]; Chicago & N. W. Ry. Co. v. Netolicky, 67 Fed. 665; Patton v. Southern Ry. Co. 82 Fed. 979.

It would appear therefore that the trial court erred in limiting the evidence above referred to, to show only the condition of the manhole top at the times when other persons claimed to have fallen at this place, and specifically charging the jury that they could not consider this evidence for the purpose of showing knowledge on the part of the city authorities.

We are further of the opinion that this error was so prejudicial to the plaintiff, who was endeavoring to establish constructive notice to the city, that the judgment should be reversed and the cause remanded for a new trial.

Jones (E. H.) and Jones (O. B.), JJ., concur.