text:
    CONTROL AS TO BRIDGES OVER NAVIGABLE WATER-WAYS.
    [Circuit Court of Ashtabula County.]
    The State of Ohio, ex rel Lewis Harper, a Tax-Payer, v. The Commissioners of Ashtabula County.
    Decided, September Term, 1905.

      Constitutional Law—Authority of War Department—To Condemn Bridges Obstructing Navigable Waterways—Jurisdiction of State Courts—To Enjoin County Commissioners from Carrying Out Order for Replacing of Bridge—Validity of the Ohio Bridge Act of 1904.
    The act of March 24, 1904 (97 O. L., 53), authorizing county commissioners to remove bridges which have been condemned by the War Department, under authority of law as an obstruction to navigation, and rebuild them in accordance with plans for the improvement of navigation, is a valid law; and the order of the Secretary of War with reference to the removal of the county bridge over the Ashtabula river, on Bridge street in the city of Ashtabula, Ohio, was a valid order.
    Burrows, J. (dissenting. )

    In this action the court of common pleas held, on general demurrer to the petition, that it did not state facts sufficient to entitle the plaintiff to the relief therein demanded.
    The circuit court, on error, reverses that judgment and directs the court of common pleas to overrule the demurrer and grant a temporary injunction as prayed for in the petition.
    That there may be no mistake as to what the petition contains, a full copy, omitting the caption, is here given:
    “The defendants are the duly elected, qualified and acting commissioners of Ashtabula county.
    “Your relator is a citizen, resident and tax-payer of Ashtabula county, and brings this action for the benefit of said county and its tax-payers.
    ‘ ‘ On March 20, 1905, relator, as such tax-payer, duly requested the prosecuting attorney of said county, in writing, to bring this action, and he refused to do so.

      “The defendants are about to, and unless enjoined they will, construct a new bridge across the Ashtabula river, upon the line of Bridge street at Ashtabula harbor in the city of Ashtabula,' at a cost of two hundred thousand dollars, and ask for bids and enter into a contract for building the same, and issue and sell the bonds of said county in the sum of two hundred thousand dollars and appropriate the proceeds thereof to pay for the construction of said bridge, and levy a tax on the people of said county to provide for the redemption of said bonds and the interest to accrue thereon. They have advertised to sell said bonds and invited bids therefor.
    “The defendants have not submitted to the voters of said county, the question as to the policy of building said bridge, and do not intend to do so.
    ‘ ‘ There has been no casualty requiring the construction of said bridge, but it is intended to replace the one now in use at said place that is in good condition, repair, and perfectly safe for public travel. >

    “The defendants claim authority and the right to proceed as aforesaid under an act of the General Assembly of the state of Ohio, entitled ‘An act to authorize county commissioners to issue bonds and levy a tax for the purpose of rebuilding, replacing or constructing anew any bridge or bridges condemned or ordered removed by the war department of the United States,’ passed March 24, 1904, and approved March 26, 1904 (97 O. L., 53), and under an order claimed to have been issued by the War Department of the United States, notifying the defendants to make certain changes and alterations in the bridge which now crosses the river at said place.
    “Said order purports to have been made by virtue of Section 18 of 30 U. S. Stat. at L., 1121, entitled ‘An act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes,’ approved March 3, 1899, and under the claim that said present bridge is an unreasonable obstruction to the navigation of said river and harbor (which are navigable waterways). Said act does not apply to counties or county commissioners, and confers no authority upon the War Department or Secretary of War to make the order aforesaid. Said act is only enforceable, as fully appears by its terms, by criminal prosecution, and by conviction and punishment for crime. If said act applies to counties, it contravenes the Constitution of the United. States, and exceeds the power granted to Congress by the Constitution, and it is, therefore, null and void.

      “Said order was made arbitrarily, without authority of law, without hearing or evidence, and contrary to the facts. Before its issuance, Dan. R. Kingman, a United States engineer, called the defendants to several conferences, and in May, 1904, to what is claimed to bé a final hearing before him at Cleveland, Ohio. No evidence whatever was offered at said pretended hearing to the effect that the present bridge is an unreasonable obstruction to navigation, and nothing whatever was offered in favor of the issuance of said order, except the statements, not under oath, of representatives of the Lake Shore & Michigan Southern Railway Company, and the Pennsylvania Company, that the proposed change would greatly benefit said railroad corporations, and enhance the value of their dock and river property at said harbor, and give to said Pennsylvania Company at least fifty feet of additional dock frontage; and that, if the order were made, said railroad corporations would contribute largely to the expense of building said new bridge. Thereupon said engineer stated that the order would be issued, and after-wards, to-wit, in June, 1904, an order was issued as aforesaid, but not, however, until after the first application or recommendation of said engineer to the War Department for said order had been refused and turned down by that department. All of which fully appears by the records of the office of said engineer at Cleveland, Ohio.
    “Your relator informs the court that said railroad corporations own valuable docks and lands available for dock purposes at said harbor that will greatly enhance in value by the proposed change (which change will be hereinafter specifically pointed out); that said Pennsylvania Company owns docks on the west side of the river just south of and adjacent to said present bridge and will acquire by the proposed change at least fifty feet of additional dock frontage out of what is now the navigable channel of said river; that said United States engineer was induced.to cause said order to be issued by the promise of said railroad corporations to contribute largely to the expense of the proposed new bridge, but that said corporations have ever since wholly failed and refused to contribute anything whatever therefor.
    ‘ ‘ Said present bridge was built by the Commissioners of Ashtabula County, in 1889, with the approval of the lake carriers and vessel owners and their associations, has been in operation ever since, is now sound, in good condition, repair, and perfectly -safe for public travel. It is a swing bridge with a 120 foot draw, with its navigable opening exactly over and substantially the entire width of the present and natural channel of the river at that point and its center pier, on which the bridge swings, on the east side of the river, entirely east-of the established dock and harbor lines of said harbor.
    ‘ ‘ Said bridge is not an unreasonable obstruction to navigation. The largest boats on the lakes are only fifty-five feet in width and less than 600 feet in length. At the point said bridge crosses there is a bend in the river with its outer curve to the west. If there is any difficulty in passing said bridge by the largest and longest boats it is owing to the shape of the river and not to any fault of the bridge.
    ' ‘ The order aforesaid notifies the defendants to entirely remove said center pier of the present bridge and dredge and excavate, at said point to a depth of twenty-one feet below mean lake level, but makes no complaint or order concerning the west abutment of said bridge.
    “The defendants propose, intend to, and will, unless enjoined, entirely remove the present bridge and excavate on the east side of the river where its center pier now is to a depth of twenty-one feet below mean lake level, and build a new bridge of the jack knife or lift pattern with its east abutment in Bridge street (formerly a country road) at least fifty feet east of the established dock and harbor lines of the harbor, and about the same distance east of the water line of the river which very nearly coincides with the harbor line at that point, and its west abutment and the street leading thereto extended at least fifty feet out into the present and navigable channel of the river. This will cut off at least fifty feet from the west side of said navigable channel and constitute a serious obstruction to navigation, and will necessitate the dredging out and making a new navigable channel for said river east of the present one with its eastern boundary entirely east of and beyond the present eastern harbor and water lines of the river.
    “Your relator informs the court that the object sought to be accomplished by said order, and the proposed plans and work of the defendants, is to straighten said river by moving its channel at least fifty feet east of the present location, and permit the said Pennsylvania Company to fill in and reclaim for dock purposes an equal distance out of the west side of the present navigable channel of the river.
    “The aforesaid act of the General Assembly of the state of Ohio contravenes—
    ' ‘ ‘ Sections 1, 2, 19, 20, Article ISections 22, 26, Article II; Sections 5, 7, Article X; Sections 2, 5, 6, Article XII; Section I, Article XIII of the Constitution of Ohio, and the Fifth and Fourteenth Amendments to the Constitution of the United States. Said act contravenes other provisions of the state and federal Constitutions, is void and of no effect, and confers no authority tipon the defendants to do the acts intended. At the time said act was passed and ever since there has been no other bridge in the state under the control of county commissioners, claimed to have been condemned or ordered removed by the "War Department of the United States.
    . “Wherefore, your relator prays that the defendants be enjoined from issuing and selling said bonds, and appropriating the proceeds to the building of said bridge, and levying said tax, and entering into contracts for said purposes, and for such other and further relief as is proper.”
    This action was commenced on the relation of a tax-payer under favor of Revised Statutes, 1277, 1278. The matters that may be investigated and enjoined in such proceedings are enumerated in Revised Statutes, 1277, which provides:
    ‘ ‘ The prosecuting attorneys of the several counties of the state, upon being satisfied that the county, or any public money in the hands of the county treasurer or belonging to the county, are about to be, or have been, misapplied, or that any such public moneys have been illegally drawn out of, or withheld from, the county treasury, or. that a contract in contravention of the laws of this state has been, or is about to be entered into, or has been or is being executed, or that a contract was procured by fraud or corruption, * # * may apply, by civil action in the name of the state, to a court of competent jurisdiction, to restrain such contemplated misapplication of funds, or the completion of any such illegal contract not fully completed. ” * # *

    Revised Statutes, 1278, provides that when the prosecuting attorney for any reason can not bring the action, or refuses to do so on written request, the action may be instituted by a taxpayer in the name of the state.
    An inspection of the petition shows that this action is based upon such allegations therein as charge that the defendants, as county commissioners, are “about to enter into a contract” for the building of a new bridge “in contravention of the laws of this state;” and accordingly, the whole question is whether it appears from the petition that the proposed action of the commissioners in contracting for the removal of the present bridge and building a new one, is in contravention of the laws of this state.
    Unquestionably, the authority of county commissioners to build bridges or raise money for that purpose must be conferred by statute, and any attempt on their part to do either in the ab-absence of such authority would be in contravention of the laws of this state. Prior to 1904 their power to build and repair bridges in their county when the cost did not exceed $10,000 was limited only by their discretion and judgment; but when the cost exceeded that sum, a vote in favor of the project was necessary. This limitation did not apply, however, in cases of casualties to certain important bridges. By the act of March 24, 1904 (97 O. L., 53), county commissioners were authorized in cases therein specified to remove and rebuild bridges at a cost not exceeding two hundred thousand dollars. This act is as follows:
    “An act to authorize county commissioners to- issue bonds and levy a tax for the purpose of rebuilding, replacing or constructing anew any bridge, or bridges condemned or ordered removed by the War Department of the-United States.

      “Be it Enacted by the General Assembly of the State of Ohio:

    “Section 1. That the county commissioners of any county having control of any bridge or bridges which have been condemned or ordered removed by the War Department of the United States, under authority of law, as an obstruction to navigation, shall have power to remove such bridge or bridges and to rebuild or replace the same or construct a new bridge or bridges over the stream or streams crossed by the bridge or bridges so condemned or ordered removed; and for that purpose such commissioners shall have power to purchase or appropriate property, in the manner provided by law, to widen the channels of such stream or streams.”
    It is self-evident that if this is a valid law, and the bridge had been lawfully condemned or ordered removed as provided in said act, the proposed action of the defendants was in pursuance of the laws of this state. The fact that the majority opinions go no further than to doubt its validity does not call for an extended discussion of this question, inasmuch as it is a settled rule of decision in this state and elsewhere that it is only when the irreconcilability of a legislative enactment with the Constitution is clear and free from doubt that courts are warranted in declaring such enactment invalid. This sort of legislation is common in this state and has been from its earliest history. The amount of public money that may be expended by public officials for one public purpose or another, under one set of circumstances or another, has always been determined by the Legislature and its competency to make such determination has never been questioned. Indeed, if this law is not valid, why is not the statute giving authority for large expenditures in cases of casualties to highways and bridges, and all laws making discrimination as to the amounts that may be expended for public purposes under various circumstances unconstitutional? The many authorities cited by counsel for the defendants and published-in'connection with the majority opinion fully cover this question.
    The power to expend such sum of money for the purposes named in said act is made to depend upon the existence of the following facts: The bridge must be over a navigable waterway of the United States; it must have been condemned or ordered removed by the War Department; and, such condemnation or order must be made under authority of law.
    The action of the War Department contemplated by this act is derived from Section 18 of 30 U. S. Stat. at L., 1121, which is as follows:
    “That whenever the Secretary of War shall have good reason to believe that any railroad or other bridge now constructed, or which may hereafter be constructed, over any of the navigable waterways of the United States, is an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, or where there is difficulty in passing the draw opening or the draw span of such bridge by rafts, steamboats, or other water-craft, it shall be the duty of the said secretary, first giving the parties reasonable opportunity to be heard, to give notice to the persons or corporation owning or controlling such bridge so to alter the same'as to render navigation through or under it reasonably free, easy, and unobstructed; and in giving such notice he shall specify the changes recommended by the chief of engineers that are required to be made, and shall prescribe in each case a reasonable time in which to make them. If at the end of such time the alteration has not been made, the Secretary of AVar 'shall forthwith notify the United States District Attorney for the district in which such bridge is situated, to the end that the criminal proceedings hereinafer mentioned may be taken. If the persons, corporation, or association owning or controlling any railroad or other bridge shall, after receiving notice to that effect, as hereinbefore required, from the Secretary of War, and within the time prescribed by him, willfully fail or refuse to remove the same or to comply with the lawful order of the Secretary of War in the premises, such person, corporation, or association shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars, and every month such persons, corporation, or association shall remain in default in respect to the removal or alteration of such bridge, shall be deemed a new offense, and subject the persons, corporation, or association so offending to the penalties above prescribed: Provided, that in any case arising under the provisions of this section an appeal or writ of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court either by the United States or by the defendants. ’ ’
    By the terms of this statute the action- of the War Department therein authorized is limited to bridges “over the navigable waterways of the United States;” and, therefore, at the outset of this 'discussion, it' must be determined whether the bridge in question was over such waterway. That the bridge is over a waterway, navigable for the largest boats on the lakes, is asserted in the petition, while the authority of the United States over the same is not denied but is impliedly assumed by its averments. It is-therein alleged that the present bridge was built with the approval of the lake carriers and vessel owners and other associations, thereby assuming and implying that such associations were interested in the free navigation of this stream and that the bridge was built so as not to prejudice their interests. At this day it will hardly be contended that a stream which by itself or in connection with other waters forms a continuous channel through which interstate commerce is carried on is not a waterway of the United States. It is stated and reiterated in the majority opinion, as if it were a circumstance of importance, that this harbor and river lie wholly within this state. The same might be said of all of Lake Erie lying north of Ohio up to the Canada line; and all the rivers and inland lakes of this country outside of the District of Columbia and the territories, lie wholly within one or more of the states. What constitutes a river or other body of water a waterway of the United States, was determined and elucidated by Chief Justice Marshall eighty years ago; and the correctness of his definition and decision has ever since remained unquestioned.- In Gibbons v. Ogden, 22 U. S. (9JSTieat.), he says, at page 194:
    “Commerce among the states can not stop at the external boundary line of each state, but may be introduced into the interior.
    “It is not intended to say that those words comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. ’ ’
    Again, page 195:
    “The deep streams which penetrate our country in. every direction, pass through the interior of almost every state in the Union, and furnish the means of exercising this right. ’ ’
    Again, page 196:
    “This principle is, if possible, still more clear, when applied to commerce ‘among the several states.’ They either join each other, in which ease they are separated by a mathematical line, or they are remote from each other, in which case other states lie between them. What is commerce ‘among’ them; and how is it to be conducted? Can a trading expedition between two adjoining states commence and terminate outside of each? And if the trading intercourse be between two states remote from each other, must it not commence in one, terminate in the other, and probably pass through a third? Commerce among the states must, of necessity, be commerce with the states.”
    Again, page 197:

      ‘ ‘ The power of Congress, then, comprehends navigation within the limits of every state in the Union; so far as that navigation may be, in any manner, connected with ‘commerce with foreign nations, or the several states. ’ ’ ’
    The following are citations from the U.„ S. Digest:
    “■All our waterways are navigable waterways of the United States within the meaning of the acts of Congress in contradistinction from navigable waters of the states where they form in their ordinary condition, by themselves or by uniting with other waters, a continuous highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water.

      “Steamer Daniel Ball v. United Stales, 77 U. S. (10 Wall.), 557; The Moniello, 78 U. S. (11 Wall.), 411; The Moniello, 87 U. S. (20 Wall.), 430; Cardwell v. Bridge Co., 113 U. S., 205.
    ‘ ‘ The Chicago river and its branches, although entirely within the limits of Illinois, form, in connection with other waters, a continuous channel for commerce among the states, and are therefore navigable waters of the United States, subject to the commercial power of Congress. Escanaba Co. v. Chicago, 107 U. S., 678.
    “By ‘navigable waters of the United States’ are meant such as are navigable in fact, and which, by themselves or their connections with other waters, form a continuous channel for commerce with foreign countries or among the states.” Miller v. New York, 109 U. S., 385.
    Applying the definition of a waterway of-the United States, as established by these decisions, to the averments of the petition, and to the facts derived from common knowledge and official documents which show that this river and harbor is a part of a continuous channel and highway of interstate commerce of such importance that the government has expended and is expending large sums of money in improving the same, with what reason can it be said that this bridge is .not over a waterway of the United States?
    The next question is: Was the bridge condemned or ordered removed by the War Department? As both majority opinions practically concede that such order was made by the Secretary of War, that question might be passed-without further discussion. The petition expressly avers that the commissioners claim the right to build the bridge “under an order claimed to have been issued by the War Department of the United States;” that “said order purports to have been made by virtue of Section 18 of an act of the Congress of the United States;” that, “before its issuance, Dan. R. Kingman, a United States engineer, called the defendants to several conferences, and in May, 1904, to what is claimed to have been a final hearing before him at Cleveland, Ohio;” that “nothing whatever was offered in favor of the issuance of said order except the statements, not under oath, of the Lake Shore & Michigan Southern Railway Company and the Pennsylvania Company * # * that the proposed change would greatly benefit said railroad corporations, and that, if the order were made, said railroad corporations would contribute largely to the expense of building said new bridge. Thereupon said engineer stated that the order would be issued, and after-wards, to-wit, in June, 1904, an order was issued as aforesaid but not, however, until the first application or recommendation of said engineer to the War Department for said order had-been refused and turned down by the War Department.”
    The claim, therefore, that such order was not issued by the War Department can only be maintained by denying the truth of the averments of the petition.
    The remaining pertinent question is: Was the order of the War Department made under authority of law? The grounds upon which it is claimed that it was not are: That Section 18 of said act is unconstitutional; that it attempts to delegate to an executive officer judicial and legislative functions; and that bridges under control of county commissioners are not within the purview of this section.
    It is asserted that Congress exceeded its power when it invested the Secretary of War with the authority and duty of determining whether a bridge was an unreasonable obstruction to navigation, and of directing the changes to be made to obviate the difficulty. The power of Congress to adopt such means as it deems appropriate to prevent the obstruction of its navigable waterways is limited only by its discretion and by such restrictions as are imposed by the Constitution. This is authoritatively held in the ease of Gibbons v. Ogden, supra. At page 196, Chief Justice Marshall in announcing the unanimous opinion of the court says:
    “We are now arrived at the inquiry, what is this power?
    “It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several states, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence that their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments. ’ ’
    The supremacy of Congress is illustrated in Pennsylvania v. Bridge Go., 59 U. S. (18 How.), 421,.where it is held that Congress may nullify a decree of the Supreme- Court by which a bridge had been pronounced a public nuisance and an obstruction to navigation. The only restrictions upon Congress in the exercise of this power is found in that part of the Fifth Amendment to the federal Constitution which provides that:
    “No person shall •* * *• be deprived of life,, liberty, or property, without due process of law; nor shall private property-be taken for public use, without just compensation.”
    It is apparent from the whole context of this section that no property is or can be .taken until after the right to do so is adjudicated in a court of competent jurisdiction. The rule applicable to such case, as formulated by Mr. Justice Miller, in Davidson v. New Orl'eans, 96 U. S.,104, is this:
    “That whenever by the laws of a state, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole state or of some limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceedings in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings can not be said to deprive the owner of his property without due process of law.”
    This proposition is quoted and approved by our Supreme Court in State v. Jones, 51 Ohio St., 492, 516, and Probasco v. Bcdne, 50 Ohio St., 378, 392. The Secretary of War is authorized to do no more than make a preliminary investigation to ascertain whether in his opinion a bridge complained of is an unreasonable obstruction to navigation and direct the changes which in his opinion are necessary; and determine the reasonable time in which the suggested changes shall be made, and. notify those having control of the bridge thereof. If the suggested changes are not made within the time specified in the notice it is his duty to notify the United States District Attorney of that fact; and there his authority and duty in the matter end. If any further action is taken it must be had in the courts. All assertions that this section gives or attempts to give to the Secretary of War power to make final adjudication or compel the removal of bridges or the construction of new ones are unwarranted. It can not be doubted that Congress has ample power to provide by appropriate legislation that all obstructions to the free navigation of the waterways of the United States shall be removed. At common law and by the statutes of the several states an obstruction of navigable water is made a .misdemeanor. It is usually provided that when the party charged in an indictment is found guilty of maintaining a nuisance its abatement may be ordered by the court. In this act, however, no provision is made for an order of abatement, and the only method that can be pursued to secure the enforcement of the requirements of the secretary is the repeated prosecution and imposition of penalties therein provided. In prosecutions under this section it must be alleged and proven that the defendant “willfully” neglected or refused to comply with the order of the secretary. It has been held that the word “malicious” is equivalent if not more than equivalent to “willfully” in a criminal statute, and that “unlawfully” is not. Charging an act as done willfully imports that it is done intentionally and in disregard of duty, and not for the purpose of maintaining, in good faith, some legal right. As we have seen, the order of the secretary is ineffective except as a basis for prosecutions, and the assumption that every right ot the defendant on trial for failure to comply with the order of the secretary, will not be duly considered and preserved in such prosecution, is an unjust imputation upon the courts.
    But there is another and better interpretation of this phrase, “under authority of law” as used by our Legislature, which renders the discussion of the validity of the act of Congress far fetched and unnecessary. The petition alleges that this act of 1904 was passed March 25, for the purpose of enabling this particular bridge to be built; and whether that is so or not, the purpose of the act was to enable county commissioners in such cases, to avoid the delay incident to raising money by taxation or in pursuance of a vote. Section 18 of the act of Congress was the only act then in force authorizing the Secretary of War to condemn bridges or order them to be removed. It is to be presumed that the legislators had knowledge of this section and had reference to it when they used the phrase “under authority of law.” The General Assembly assumed, as it had a right to assume, that the Secretary of War was duly authorized to make such order; and the true intent and meaning of the phrase “under authority of law” as used by the Legislature, was that county commissioners should be authorized to act when a bridge was condemned or ordered removed by the War Department in pursuance of Section 18 of the act of Congress passed March 3, 1899.

      The logical force of the criticism that Section 18 of said act of Congress invests the Secretary of War with legislative or judicial functions or both is reduced to small proportions when it is remembered that the scope of this power is limited as has been shown to making an investigation and directing what changes are in his opinion necessary.
    But were it otherwise and the power to hear and determine these .questions judicially given to the secretary, his exercise of such jurisdiction would be unobjectionable so long as his decision was reviewable in the courts. In State v. Harmon, 81 Ohio St., 250, White, J., in speaking of the power of the committee of the state senate to hear and determine an election contest, says at page 258:
    “The power of allotting to the different departments of the government their appropriate functions is a legislative power; and in so far as the distribution has not been made in the Constitution, the power to make it is vested in the General Assembly, as the depository of the legislative power of the state.”
    Again:
    “Whether power, in a given instance, ought to be assigned to the judicial department, is ordinarily determinable from the nature of the subject to which the power relates. In many instances, however, it may appropriately be assigned to either of the departments.
    “It is said, authority to hear and determine a controversy upon the law and fact is a judicial power. That such authority is essential to the exercise of judicial power, is admitted; but it does not follow that the exercise of such authority is necessarily the exercise of judicial power. The authority to ascertain facts, and to apply the law to the facts when ascertained, appertains as well to the other departments of the government as to the judiciary. Judgment and discretion are required to be exercised by all the departments.”
    In Prohasco v. Paine, 50 Ohio St., 378, the first proposition of the syllabus is:
    “If a statute is constitutional, it is valid, and can not be set aside by a court, as being against public policy or natural right. There can be no public policy or right in conflict with a constitutional statute.”
    The question in that case was whether a judicial power could be conferred upon the auditor of the county. In speaking of this subject Burket, J., says, at page 891:
    ‘ ‘ The result to be attained by the laws to be passed under this section, is equal taxation, but the means by which that end shall be attained, is left to the judgment and sound discretion \)f the Legislature acting within the power conferred by the Constitution.
    “To have equality in taxation, all property must be brought upon the duplicate. Some officer must be authorized and empowered to cause all property to be listed for taxation. Such officer must be paid for his services, either by fees or salary. The Legislature has full power under the Constitution to say what officer shall perform such duties, and in what manner he shall be paid.
    “It has enacted that such duties shall be performed by the auditor, and that he shall be paid as provided in Section 1071. In the opinion of the Legislature this is a proper means to attain, in part at least, equal taxation. It matters not whether the auditor acts judicially or ministerially in the discharge of his duties. The Legislature is free to employ such means, as in its opinion, shall be most effective, whether they be judicial or ministerial or both.
    “The objection urged in argument that a man can not be a judge in his own case is a fallacy. The auditor has no case to be judged, but on the contrary, he is the taxing officer before whom other parties are cited to appear and show cause why they should not bear their equal burden of taxation. His actions in the premises are subject to review in the courts, and thereby due process of law is had.”
    Under the grant of power to regulate commerce among the states an interstate commerce commission was created some years since with the power to hear and determine complaints of unreasonable rates charged by railroads. A bill is now pending in Congress by which it is propqsed to enlarge the authority of this commission with a view of increasing its efficiency. This has led to a wide discussion in and out of Congress of the constitutionality and propriety of conferring such power upon the commission; and it may be safely said that no lawyer, statesman, publicist, or jurist has as yet doubted the power of Congress to confer this jurisdiction upon the commission, provided- adequate provision is made for the review of its decisions by the courts.
    The further and last question made by the petition, and apparently relied upon in the majority opinion, is that the bridges controlled by the officers of the civil division of the state are not within the provisions of said* Section 18 and that the words “persons, corporation or association” do not include county commissioners. No authority is referred to in support of this contention.' In the reported cases where prosecutions have been maintained against county commissioners, this question has not been suggested, although it has been held that no penalty could properly be imposed upon them where they were unable to comply with the order of the War Department for want of funds. That the term “persons” used in a statute, when necessary to make its provisions effective and consistent, may include artificial persons, such as bodies politic and corporate, deriving their existence from legislation, as well as natural persons and co-partnerships, is decided or illustrated by the following cases: United States v. Fox, 94 U. S., 315, 321; Pembina Consol, S. M. & M. Co. v. Commonwealth, 125 U. S., 181,189; Beaston v. Bank, 37 U. S. (12 Pet.), 102, 134; United States v. Amedy, 24 U. S. (11 Wheat.), 392; Santa Clara Co. v. Bailway, 18 Fed. Rep., 385, 404; Krug v. Davis, 87 Ind., 590, .596; State v. Herold, 9 Kan.,, 194; Forrest v. Hewi'y, 33 Minn., 434, 436; Codding ton v. Haven, 8 N. J. Eq. (4 Halst. Ch.), 590; Martin v. State, 24 Tex., 61; Cincinnati Gas Light & C. Co. v. Avondale, 43 O. S., 257; Steam Canal Boat Tempest v. Lucas Co. (Comrs.), 13 C. C., 263; Springfield v. Walker, 42 Ohio St., 543. It is difficult to imagine how more comprehensive terms could have been used to include every bridge' over a waterway of the United States. That this bridge is within a civil division of the state is an undoubted fact; and so are all bridges in this country in some civil division of a state, except in those in the District of Columbia and in the territories, and most of them are built and controlled by the authorities of such civil divisions. The capacity in which persons may exercise control, whether as agents, trustees, receivers, executors or otherwise ought not to exempt them from the consequences of maintaining a nuisance if they are persons having the power to make the alterations required by the War Department. To construe this statute as excluding the bridges under the control of municipalities, trustees of townships and county commissioners would practically defeat the purpose and beneficial effect of the act.
    Here the discussion, so far as it bears upon the questions that are legitimately raised by the demurrer, is brought to a close.
    The diversity of opinions in this case is, after all, in respect to matters that have little or no connection with the real issue. Take the question of the right of defendants to compensation for their bridge. Conceding that they have a legal right to compensation before they can be compelled to remove it, how does that question arise? It is not made in the petition. It does not appear that the defendants claim compensation or are entitled to any. The discussion of that question is, therefore, irrelevant. It is not quite accurate, however, to say that the act of Congress has been held, heretofore, to be unconstitutional, because it makes no provision for just compensation to parties entitled thereto. It has been held, rather, that the requirements of the secretary could not, in such case, be enforced by the imposition of the penalties provided by the act; and that the enforcement of it by penalties would be in violation of the Constitution. In other words, if the right to compensation is unjustly denied in a given case the owner of the bridge could not be charged with and convicted of the offense of willfully refusing to make the alterations;- for 0that would be inflicting punishment for insistence upon the constitutional guaranty that private property shall not be taken for public use without just compensation.
    Take as an example the able discussion of the abstract proposition that the Secretary of War can not compel nor can Congress authorize him to compel county commissioners to build bridges, dredge channels, straighten old channels or make new ones.

      What has the correctness of that proposition to do with this case? It is readily conceded that he can no more compel the defendants to do any of these things, than he can compel them to commit murder. Nor has he made an attempt to do so. Whatever compulsion may be enforced upon the defendants under this act, must be brought to bear by the District Court of the United States; and if not satisfactorily applied by that court a direct appeal may be taken to the Supreme Court.
    Right here may be found the fundamental cause for divergency of opinions. Let it be admitted, as it must be, that county commissioners derive all their authority from the statutes of the state, and none from Congress or any department of the federal government, and we get back to the real question to be decided, whether the laws of Ohio authorized the defendants to do the things they are charged with intending to do.
    No officers in the state have more ample discretionary power; and in the exercise of their judgment and discretion in matters within their jurisdiction they are not subject to the dictation or control of courts or tax-payers. While they keep within the limits of their jurisdiction they are practically omnipotent. They may remove bridges, piers and abutments and m§tke any changes whatever so long as they act in good faith, and the expenditure does not exceed the statutory limit. Their failure to exercise good judgment and discretion does not authorize a proceeding of this .character. If such were the law a large increase of the judicial force of the state might be demanded.
    But for the general limitations as to expenditures the defendants might have removed the pier, abutment and fenders of this bridge and put up an entirely new structure without suggestions from the Secretary of War. The act of March, 1904, merely enlarged the limit of their expenditures in cases where a bridge over a navigable waterway was condemned nr ordered removed by the War Department as an obstruction to navigation. Their authority to make this larger expenditure was complete when the order of the secretary in respect to this bridge was made; not because they were under compulsion to obey the order but because the condition had happened, giving them the power to make such expenditure and their attempt thereupon to remove the old bridge with its fenders and piers and put in a new one was strictly within the express authority conferred by law. If this position is correct, then the claim that the defendants were intending to do more than was suggested by the secretary is also irrelevant. The pertinent inquiry is, were they intending to do more than they had authority to do under the laws of .Ohio. If they were not, how could they be enjoined in this proceeding on the ground that their proposed action was in contravention of law?
    The published opinion of my brother Cook is like a two-edged sword. It assaults the main fabric of the elaborate opinion of our distinguished associate, with intent to destroy, and then reaches the conclusion that the demurrer should be overruled on other, and possibly less tenable grounds.
    It asserts that the demurrer admits that the bridge is no obstruction to the free navigation of the river,, and hence “there was nothing for the secretary to base his order upon.” This is a clear misapprehension of the contents of the petition. The petition alleges, “said bridge is not an unreasonable obstruction to navigation, ’ ’ thereby implying that it is some obstruction. It also avers, “if there is any difficulty in passing said bridge by the largest and longest boats, it is owing to the shape of the river and not to any fault in the bridge. ’ ’ This makes the implication clearer that navigation is impeded and difficult at this point. These allegations fall far short of making good the assertion that “the allegations of the petition show there was no obstruction.” The unsoundness of the argument based upon such grounds is apparent, since it is immaterial what the petition declares in that respect. The authority of the commissioners under the statute is not made to depend upon the justness or propriety of the order of the War Department, but solely on the fact that it is made.
    The invalidity'of the order of the Secretary of War is asserted on the ground that he undertakes to direct the removal of the center pier which stands on land purchased by the county and directly outside the bounds of the river. The petition states that the center pier is on the east side of the river, “and entirely east of the established dock and harbor lines of said harbor,” and that the bridge opening is “exactly over and substantially the entire width of the present and natural channel, of the river. ’ ’
    These statements may be literally true and the pier yet stand within the bounds of the river. The reasonable inference from these guarded statements of the petition is, that it does. A portion of the order of the Secretary of War has been introduced into the majority opinion and from that we learn that, “the existence of the center pier and its fender in the river,” is an obstruction to its free navigation. Although the order of the secretary declares they were so placed, the petition maintains a discreet silence on that point. The fenders consist of piling so driven as -to protect the bridge, when open, against injury from passing boats. The petition says, ‘ ‘ at the point said bridge crosses there is a bend in the river with its curve to the west..” From this statement there must be a bend of the river to the east both above and below the center pier, which would make it impossible for both ends of this straight bridge, when open, to coincide with the curvature of the stream. One end of it must necessarily lie to some extent over the river, and be protected in that position by fenders. The order of the secretary is that the opening shall be 140 feet between the fenders; thereby requiring the removal of the center pier more than twenty feet to the east, by reason of the bend in the stream; and thereby the pier and' fenders would become useless obstructions, which the commissioners placed there and which they seem willing .to remove. Whether the value of the piles and the stone in the pier would be more or less than the cost of their removal and clearing out the channel where they stand to the depth of the other parts of the channel is not shown. ,
    If the commissioners chose to carry the center pier further to the east and thereby increase the length of the draw span, or chose to make a new bridge of the jack-knife or lift pattern, as surmised and alleged, this would not contravene any law of the state, as the form and pattern of bridges and the location of piers and abutments are matters resting in the discretion of the commissioners. Besides, the act of 1904 expressly confers authority in such cases to purchase 'or appropriate land to widen such stream or streams.
    The charge that th'e commissioners entered into an agreement, collusive or otherwise, with the Secretary of War with respect to removing or rebuilding this bridge is not supported by any allegation of the petition, nor was it hinted at in the argument of the case.
    These suggestions as to the action of the secretary are made for the purpose of attempting to show that his order was neither arbitrary, illegal, nor unreasonable. Stripped of all irrelevant and collateral matters which have no proper place in the petition or in this discussion, the material facts stated in the petition are: that some seventeen years ago this bridge was built at a sharp curve in the river with a draw span sufficient to enable the ordinary vessels of that day to pass in safety; that since then the size of vessels has been greatly increased, until now it is well nigh impossible to warp them through the draw opening around the sharp curve; that upon the complaint of the railroa 1 companies having extensive docks above the bridge, and upon their application and representations the War Department ordered certain alterations and changes to be made of which due notice was given to the commissioners; that said alterations and changes required the removal of the entire bridge structure, including the fenders and central pier, and the dredging of the channel at that point to the depth of twenty-one feet; and that in pursuance of said notice and the -authority conferred upon them by the act-of March, 1904, the defendants as county commissioners were proceeding to consummate said alterations and changes, without submitting the policy of the improvement to a vote- of the people. The substantial grounds relied upon in the hearing of the case were, that said act of the Legislature was ■unconstitutional and that said act of Congress did not apply to county commissioners.
    No member of this court holds said act of the Legislature to be unconstitutional; and only one member, if any, holds that the act of Congress does not apply to county commissioners. Section 18 of the act of Congress which has been drawn in question, is held by the majority of the court to be constitutional; and yet the majority of the court hold that the commissioners were acting in contravention of law.
    It is to be regretted that in reaching this conclusion it was found necessary to condemn an act of Congress, criticise an act of the General Assembly of Ohio, condemn the decisions of the federal courts, condemn the action of the Secretary of War, impute dishonest motives to the United States engineers, charge the county commissioners with fraud and collusion, as also the railroad companies, and impeach the intelligence of the counsel for the defendants. In justice to the attorneys it should be said that they were not guilty of the imputed absurdity of claiming that this was not a county bridge. Neither the defendants, the United States officers, nor the railroad companies owning docks above the bridge were shown to have been actuated, in what they did, by any baser motive than an honest desire to protect and improve the navigable channels of commerce. The serious consequences of this decision to the defendants and the public has induced this somewhat protracted dissenting opinion and the discussion of many irrelevant matters.
    By the judgment in this case the execution of the laws of the United States is obstructed and temporarily thwarted, a necessary improvement upon which great public interests depend is delayed, and the defendants placed in a double jeopardy from which their escape may be problematic whatever course they pursue; and all this is done not in behalf of the enforcement of salutary laws according to their manifest letter and spirit, but against their proper enforcement, although the same have received, for more than half a century, either directly, or by analogy and upon principle, the sanction of the highest judicial tribunals in the land.

      For these reasons I am forced to dissent from the judgment entered in this cause.

      M. 6-. Spaulding and E. E. Starkey, for plaintiff in error.

      White, Perry <& Roberts and G. L. Taylor, for defendants in error.

       For majority opinions, see 7 C. C.—N. S., 469.


source: Caselaw Access Project

license: Public Domain

text:
    PROSPECTIVE PROFITS FROM THE DRILLING OF AN OIL WELL.
    [Circuit Court of Wood County.]
    George C. Leffler v. Bishop Witten and Herman A. Shultz.
    Decided, November 25, 1905.

      Breach of Contract—Measure of Damages—Where the Work Undertaken Consists Largely of the Labor of the Contractor—Prospective Profits—Hazard of the Enterprise—Verdict—Charge of Court.

    1. The rule that prospective profits can not be recovered in a suit for breach of contract does not apply to a contract for the doing of work, which the contractor expects to perform himself in part with the expectation of getting good wages or of making something out of the job.
    2. Where the contract relates to the drilling of an oil well, the plaintiff averring that he was not permitted to perform the work, a judgment for one-ha-lf of the amount claimed as the probable difference between the cost of the work and the amount to be paid therefor will not be disturbed, in view of the expenses to be incurred and the hazards of the work.
    Haynes, J. (orally); Parker, J., and Wildman, J., concur.
    The petition filed by Bishop Witten and Herman A. Shultz, partners, against George C. Leffler, in the -common pleas court, sets forth that they entered into a contract with Leffler whereby among other things they agreed to drill an oil well on the property of Leffler. Leffler agreed to furnish the fuel necessary for the work of drilling, and agreed to erect and have ready for use a derrick for the location of the well to be drilled, and to have the derrick in readiness within five weeks from the date of the contract. Leffler agreed to pay the contract price, one-half in cash and the other half in four months from the completion and acceptance of the well, the plaintiffs agreeing to drill the well to a depth of four hundred feet in the sand or oil-bearing rock. The contract is in writing. The plaintiffs aver that at the expiration of said five weeks from the date of the contract they were ready and willing to drill the well and demanded of Leffler that he furnish the derrick and permit the plaintiffs to proceed with the drilling of the well according' to the terms of the contract. The plaintiffs aver that they have done and performed all the things required of- them on their part, but that the .plaintiff, disregarding his contract and in violation of the same, did not erect and have ready the rig or derrick for the drilling of the well at the expiration of the five weeks,'or at any time at all, and that defendant when requested to permit plaintiffs to drill said well, refused to let them do so, which they say was a damage to them in the sum of four hundred and ninety-five dollars, the difference between what they aver would be the expense of drilling the well, and the profits they expected to make.
    The testimony of the plaintiffs was in regard to the breach of the contract and refusal on the part of the defendant, and the cost of that kind of work. They had already drilled one well on the property, and they called Avitnesses—experts, Avho Avere carrying on that kind of business, to show what the cost Avould be ordinarily for the completion of a well of that kind; and the defendant in cross-examination developed the fact that in the drilling of wells of that kind, there Avas a liability to various misadventures which would tend to render the drilling of the well uncertain and indefinite and that the prospective profits would be less followed up by the cost and expense of overcoming these defects. They have technical names for them in the prosecution of this business; sometimes it results in the loss of a string- of tools, as it is called, and some testimony was developed in regard to the probability of that class of accidents, and statements made in regard to their experience. After this line of testimony had been given to the jury and the testimony ^pn each side had been closed, the defendant requested the court in writing to charge the jury as follows, which was refused, to which refusal the defendant excepted:
    “The plaintiff can only recover on the first cause of action such damage as they actually sustained. They can not recover profits which they might have made if they had drilled the well. ’1
    Thereupon the court proceeded to charge the jury very briefly indeed and says to them:
    “If after a careful consideration of the evidence relating to this cause of action, you find in favor of the plaintiffs, they would be entitled to recover the contract price for drilling said well, less the actual cost of drilling the same. That is, they would be entitled to recover the profits which they would have made, had they been permitted to drill this well as provided by their contract. ’ ’
    The controversy is in regard to the alleged returns of the contract, which on one side were called profits and on the other side is said to be a, remuneration for their labor. It is not very material what they call itit is what they expected to make out of the job. Counsel for plaintiff in error contend that they can not recover at all for profits, and they cite the general rule that where profits are uncertain they are mere profits, and that the court will not permit a recovery of that class of profits. That is very true in regard to a certain class of cases. AYe may say that this question of profit is one that is rather difficult in its application,’ and we find a great variety of eases upon the subject, some coming near to it, and some quite remote.
    A case is cited by counsel for plaintiff in error foiind in 61 N. E. Rep., 561, where a man was carrying on a bicycle factory, and had everything that was necessary to .make the wheels except the hubs, and he made some arrangement with the defendants to furnish them, which they failed to do. He was then sued for the value of certain things that had been furnished him, and he set up as a counter-claim the non-delivery of these hubs. He wanted to prove the profits, he expected to make upon the bicycles, and the Supreme Court of Indiana held against him, under •the general decisions in that class of cases. The court held “that the demurrer to. the acknowledged claim should be sustained on the ground that the loss of profits on bicycles which the defendant might possibly have manufactured and sold can not be considered as damages arising naturally from the breach of' the contract to deliver hub machines at the time fixed by the contract;” and holding further, “that speculative and contingent profits on probable sales can not be held to have been in contempiation of both parties at the time of the contract so as to render plaintiff liable therefor.”
    The case at bar is not exactly a case of manufactured articles. These men took a contract to do a certain piece, of work, the work of drilling an oil well. They might do the whole thing by their own labor. What they expected to get was a remuneration for their labor and for the use of the machinery and tools, and for the labor they had to employ, and in all that they expect to get what may be termed a prifit, or to make’ something out of it, or to make good wages for themselves and get something for the use of the machinery and tools. It comes in that way although it may be indefinite, and belongs to that large class of cases where contracts are taken to do work where there is an expectation of getting good wages or making something upon the contract.
    We have been cited in this case by counsel for plaintiff in error to a case decided by our Supreme Court, Rhodes v. Baird, 16 O. S., 572. In that case there was a contract between the parties whereby the defendant Baird agreed to make a lease for á term of ten years for a piece of land for a peach orchard, and. the breach consisted in the failure of the defendant to make the lease, and his causing the plaintiff, within two years after his taking possession, to be evicted from the premises, but after the peach trees were planted. On the trial 'the plaintiff was permitted to give evidence of the probable profits that might in future be realized from the orchard, judging by the number of crops and the prices of peaches in the county for the last ten or fifteen years, and it was held:
    “1. The evidence as to the probably future profits was incompetent to be given in chief by the plaintiff, as furnishing a basis for the assessment of damages by the jury, such evidence being uncertain and speculative in its nature, and in a great degree conjectural.

      “2. To the extent that the damage depended on the loss of the property for the term, its market value at the time of the eviction subject to the performance of the contract on the part of the plaintiff, furnished the standard for assessing the damages. If it had no general market value, its value should be ascertained from witnesses whose skill and experience enable them to testify to such value in view of the hazards and chances of the business to which the land was to be devoted. ’ ’
    It will be seen that while the profits may be uncertain, yet in that ease the court recognized the fact that the parties should have damages for the breach of the contract. But the court held that they should have called what might be termed expert witnesses to show, first, whether there was a market value of a lease of that kind; if it had no general market value, its value should have been ascertained from witnesses whose skill and experience enabled them to testify directly to such value, in view of the hazards and chances of the business to which the orchard was subject. After all,’ it will be seen, without calling witnesses, the question comes right back to the chances and hazards of the business of peach growing; that is to say, the probability of their having a crop every year, or of losing many crops during the term, and all the various incidents and hazards attending the cultivation of a peach orchard.
    We had a case in this circuit which was decided in 1891 by this court, Judge Moore taking the place of Judge Scribner. It was the case of The City of Toledo v. Libbie, 19 C. C. R., 704, wherein a man took a contract for building sidewalks and he expected to make a certain profit out of the work. He expected to do the work and get a certain sum for his labor and make a certain' profit on the materials that went into the construction—get an ample compensation out of the two; that after he had partially entered into the performance of his contract, the city council stopped further construction and prohibited him from further pursuing his contract, and the court in that ease held":
    “In an action by a contractor against a city for damages for having prevented such contractor from performing or completing his contract, the plaintiff would be entitled to recover the difference between the contract price and what it would have actually cost to have completed the contract; in other words, the profit he would have made.
    “Where therefore the contractor has taken the contract at less than it was worth to do the latter, it would be error in the court • to permit him to offer evidence to prove what it ivas reasonably worth to do the labor; it would be error in the court to permit him to offer evidence to prove what it was reasonably worth to do the work. If the contractor took the contract at a price at which there was no profit in it, he lost nothing by the action of the city abandoning the contract, and he can recover nothing; but if iiis contract price was in excess of what it would be worth to complete the work, that would be the measure of damages. ’ ’
    That case was affirmed by the Supreme Court in 51 O. S., 562.
    This case at bar lies along the line of that class of cases. The testimony is not so full and complete perhaps as I would like to have seen it, speaking for myself, but there was testimony on all of those points, and there was a charge of the court. The court’s charge is short and brief, and there was a denial prayed for by the plaintiff in error, but we are of the opinion, taking the whole of the testimony together in the case and its application, that the charge of the court should be sustained.
    It is shown by the record that the jury in its verdict returned on this point in the petition about two hundred and fifty dollars, or about half of the claim of the plaintiffs’ below, and it is evident that they took into consideration the cost of doing the work, its hazards and probabilities. That is all that the Supreme Court of this state requires in regard to anything. Taking all the probabilities into consideration in this ease, the jury reduced the claim of the plaintiffs about one half, and it looks to us as if that deduction was proper and right. This party made a contract and broke it, and he should pay such damages as wo.uld, in the' judgment of the jury, result from a breach of the contract, and the judgment of the court of common pleas will be affirmed, without penalty.

      W. H. McMillen, Jas. 0. Troup, for plaintiffs in error.

      Baldwin & Harrington, for defendant in error.


text:
    EQUITIES IN CONNECTION WITH SPECIFIC PERFORMANCE.
    [Circuit Court of Hamilton County.]
    Carey & Zimmerman v. Arthur P. Taylor.
    Decided, June 2, 1906.

      Specific Performance—Of Contract for Purchase of Beal Estate—Interest on Purchase Money—Pending Perfection of Title—'-Purchaser in Possession—Rents and Profits.

    Where a purchaser of real estate goes into possession, and enjoys the rents and profits during' a period of several months while the title is being perfected, he is liable for interest on the purchase money from the time of going into possession until the delivery of the deed.
    Giffen, J.; Jelke, J., and Swing, J., concur.
    This is an action for the specific performance of a contract to purchase certain real estate, entered into January 20, 1905, by the terms of which plaintiff was to pay one thousand dollars cash on February 10, 1905, and the balance, partly by assuming a mortgage then on the property, and partly by a second mortgage for such sum as would bring the total up to forty-two hundred dollars.
    The contract contained the clause: “The property to be conveyed to me by general warranty deed with release of dower, title of property to be good. ’ ’
    An examination of the title disclosed a substantial defect, which was reported to plaintiffs, but on February 10, 1905, defendant took possession of the premises with the understanding that the defect would be cured, but without any agreement to pay rent or interest on the purchase money in the' meantime. The title was not perfected nor was the deed tendered until September 22, 1905, when interest was demanded upon the purchase money from February 10, 1905. The defendant denies the right of plaintiffs to such interest and avers that on February 10, 1905, and until September 22, 1905, he was ready and willing and anxious to perform his part of said agreement whenever plaintiffs would tender him a proper warranty deed and title to said premises.
    The question presented is whether a purchaser in possession of the premises is chargeable with interest on the purchase money .during the period of time from the date when the contract was to be completed and the actual tender of the deed, the delay being occasioned by the failure of the vendor to perfect the title. "When defendant avers that he was always, ready and willing to perform his part of the contract, it does not appear that such fact was communicated to the plaintiffs, nor that he offered to perform. Plaintiffs were, therefore, not in default to the extent that defendant could have brought an action for specific performance. Itoudebaugh v. Mart, 61 O. S., 73.
    When the defendant was put in possession of the premises, the plaintiffs did all they could at that time do in fulfillment of the contract, and it was evidently the intention of the parties to complete the contract when the defect in the title was cured. In the meantime, the defendant suffered loss, if at all, only in interest on the one thousand dollars, but it does not appear from the pleadings that he even sustained this loss. The thousand dollars may have been earning interest during the entire period, or, if not, it was his duty to deposit it in bank, and. notify the plaintiffs that this money together with such interest as the bank might allow, would be subject to their order upon a tender of a good and sufficient deed. In the event that such deed could not be tendered,‘or the defect in the title could not be removed, and the defendant was, therefore, compelled to surrender possession of the premises, he would not be liable for rent during the time he occupied the same, as the relation of landlord and tenant did not exist.
    In Pomeroy on “Specific Performance of Contracts,” Sections 429 and 430, are as follows:
    “The general rule is well settled that, where the contract is not completed until after the time stipulated for’ that purpose, .but the court nevertheless decrees a specific performance, it will adjust the equities of the parties by placing them as far as possible in the same position which they would have occupied had the agreement been completed at the prescribed day, and to that end it will allow to the purchaser the rents and profits, and to the vendor interest upon the purchase price from and after that date.
    “In ordinary contracts, which contain no stipulation concerning the payment of interest, and do not specify any day for completion, the purchaser is generally liable to pay interest on the purchase money from the time when he takes the possession, especially if he has received the rents and profits. ’ ’
    To the same effect is Dart on “Vendors and Purchasers,” at page 627, and following.
    The reason of the rule seems to be that a party to the sale of real estate can not have the rents and profits and also the use of the purchase money, the object being to place the parties in a position as near as possible to that which they would have occupied had the contract been completed at the date agreed on.
    The demurrer to the answer will be sustained.

      W. M. Fridman, for plaintiffs.

      Malcolm McAvoy, contra.


text:
    RECOVERY FOR. DEATH UNDER AN ACCIDENT POLICY.
    [Circuit Court of Lucas County.]
    The Travelers Insurance Company v. Anna M. Leibus.
    Decided, May, 1906.

      Accident Insurance—Pleading in Action for Recovery for Death—Prox imate and Sole Cause—Error not Affecting Substantial Rights— Incorrect Answer of Insured as to Weekly Earnings—Charge of Court—Burden of Proof—Words and Phrases.

    1. In an action for recovery for death under a policy of accident insurance, containing the provision that the company insures against death resulting from injuries alone, the judgment against the company will not be reversed for failure to allege in the petition that death was caused solely by the accident, where the answer affirmatively alleged another cause, thereby presenting that issue.
    2. Where in such a case the court charged the jury generally that the plaintiff must show that death resulted from the accident alone, and also charged that the burden was on the defendant to show the specific cause of death to have been other than the accident, the apparent inconsistency is not of such a character as to require a reversal of the judgment.
    3. Nor did the use of the word “proximate” cause of death in the sense of “sole” cause, when taken in connection with other qualifying and restrictive words in the same connection,' render the instruction confusing or erroneous to an extent requiring a reversal of the judgment.
    4. A clause avoiding a policy of accident insurance for a false or incorrect statement of the weekly earnings of the assured, is applicable only to the weekly indemnity to which the assured would be entitled in case of an injury which incapacitates him from following his vocation, and not to an injury resulting in death.
    Wildman, J.; Haynes, J., and Parker, J., concur.
    This is a proceeding brought in error to reverse the judgment of the court of common pleas in favor of the defendant ■ in error, Anna M. Leibus, against the said insurance company.
    It appears from the pleadings and record that oné August Leibus, who was insured in the Travelers Insurance Company, died on the 2d day of April, 1904, as the claimed result of an accident incurred by him in falling a short time previous to that date. Suit was brought by the beneficiary, Anna M. Leibus, in the court below, and a verdict and judgment for the sum of $5,000 obtained upon the policy of insurance.
    There are several claims of error upon which the proceeding is prosecuted in this court to reverse that judgment. The record is a somewhat long one, and a critical examination of all the points involved and statement of the reasons for the conclusion at which we have arrived upon each claimed item of error would take longer time than I have now at my disposal and would hardly be necessary to a correct understanding of our general conclusions.
    One of the important claims of the plaintiff in' error is that the petition of Mrs. Leibus in the court below did not state facts constituting a cause of action, and for that reason was obnoxious to the demurrer which was filed against it, and that the court erred in overruling said demurrer. The point most specifically stated is that the petition failed to allege in express terms that death had occurred alone from the accident described in the petition, and in an amendment to it, which in some detail stated the occurrence averred to have caused the death. It is not claimed that the petition does not sufficiently allege the death as the proximate result of the accident, but it is claimed that it nowhere alleges that it was caused solely by the accident, and that it should have so alleged.
    We are strongly inclined to the opinion that the petition is open to this objection, but, under a decision of the Supreme Court and one or two general provisions of our civil code to which I will presently refer, our view is that this, under all the circumstances of the case, is not ground for reversal.
    The policy of insurance not only contains the general provision that the company insures the decedent against death resulting from the injuries alone, but it has an independent clause providing that the insurance shall not cover injuries resulting wholly or partly, directly or indirectly, from a number of caiTses mentioned in the clause of the policy referred to, among which is cited disease in any form. This was set up in a defense in the answer in the case at bar as a ground upon which the company was exonerated from liability, or rather, a ground for the claim that the policy did not cover the death in this case because, as asserted, it had resulted from a disease of some kind.
    The decision of the Supreme Court to which I referred is the ease of Yocum, Admr., v. Allen, 58 O. S., 280, holding—
    “Where, in a cause pending in the court of common pleas, a demurrer to a petition has been overruled, and upon issues made by answer and reply, the case has been tried to a jury and a verdict and judgment for plaintiff rendered, this court will not reverse the judgment, even though' satisfied that the demurrer ought to have been sustained, provided it also appears, upon a consideration of the whole record, that the overruling of the demurrer was an error which was not prejudicial to the adverse party.”
    This decision of the Supreme Court is based upon the provision of our civil code to which I have referred, or perhaps to two provisions of the civil code, which are referred to on pages 288 and 289 of the case cited.
    “Respecting the defects in the petition,” the court.said, “as to allegations of indebtedness, the writer is free to say” (and the writer in this instance is Judge Spear) “that he has no sufficient answer to the criticism of counsel, and if we were passing upon-the question .in a court of first instance, there would seem to be evident propriety in holding the pleading insufficient. But the question before this court is not whether this petition, tested by technical rules, states a ease, but whether the error in overruling the demurrer has worked prejudice to the adverse party which requires a reversal of the judgment. The second section of the code (now 4948), enjoined this rule upon the courts: ‘The provisions of this part, and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.’ And Section 138 (now 5115), enjoins a still further duty in the direction of liberality: ‘The court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed, or affected, by reason of such error or defect. ’ ’ ’
    The petition in that case defectively stated the claims of the plaintiff. It was probably obnoxious to a demurrer upon the ground that the petition did not state facts constituting a cause of action, but notwithstanding another provision in the code, that the defendant shall be deemed to have waived all defects in the petition which might be raised by demurrer save only that the petition does not state facts constituting a cause of action, or that the court has no jurisdiction, the Supreme Court, applying the other provision of the code that the court in every such action must disregard .any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, refused to reverse the judgment notwithstanding the defective petition.
    In the case at bar we have a condition very similar to the one, which upon a reading of the facts in Yocum v. Allen, will be found to have obtained in that case. The precise matter was called to the attention of the court and jury upon the trial of the case by the claims made in the answer after the demurrer had been overruled by the court; because the answer affirmatively alleged independent causes of the death, so as to show affirmatively by the defendant what the plaintiff had failed to negative, that the death had another cause than the accident. We think, on the strength of the decision in the 58th Ohio State, that this judgment ought not to be reversed upon the ground that the petition was defective in failing to state that the death was caused solely by the accident.
    Another point made in the petition in error before us is that the court erroneously sustained a demurrer to the second defense in the defendant’s answer pleading a false or incorrect statement of the assured as to his weekly earnings, and a clause avoiding the policy for such representations. Without pausing long upon this, it is enough to say that we think that this demurrer was properly sustained; that the clause in the policy upon which the defense was based was applicable only to the weekly indemnity which the policy provided for in case of injury to the person assured, and that it had no application to a case of death.
    The plaintiff in error claims that the court erred in the admission and rejection of certain evidence during the progress of the case, and if I had time I would comment in detail upon the various rulings of the court in this regard as shown by the bill of exceptions. We have examined it, and especially the pages cited by counsel for the plaintiff in error, but we find upon none of those pages, or elsewhere in the record, any rulings of the court that in our judgment would justify a reversal of the case upon either ground stated, the admission or the rejection of evidence, or other rulings during the progress of the trial, up to the time of the charge of the court to the jury, wherein some quite important questions are raised which demand a little more special attention.
    It is urged by counsel for plaintiff in error that the court erred in charging the jury as the court did, substantially, that the burden was upon the defendant to show a specific cause for the death other than the accident. Did the court err in this respect ? The court had already charged generally that the plaintiff must show that the death resulted alone from the accident; but later, and notwithstanding that, the court instructed the' jury that upon the particular claims made by thq defendant as to specific causes of death other than the accident, the burden was on the defendant to show them. This question we have examined with a good deal of care, and with the impression at first that perhaps the court committed substantial error in the charge so given.
    In Freeman v. Travelers’ Insurance Company, 144 Massachusetts, 572, it was held:
    “In an action upon a policy of. insurance against bodily injuries ‘effected through external, violent, and accidental means, within the meaning of this contract and the conditions hereunto annexed,’ one of which is that ‘the party insured is required to use all due diligence for personal safety and protection,’ the burden of proof is on the defendant to show that the assured did not use such due diligence.”
    I will not stop to quote further from this case.
    On page 77 of 154 Massachusetts is the case of Baclenfeld v. Massachusetts Mutual Accident Association, in which it is held that in an action upon a certificate of membership in an accident association containing provisions that “members are required to use all due diligence for personal safety and protection,” and that no claim shall be made upon the certificate “when death or injury may have happened in consequence of any voluntary exposure to unnecessary danger,” the burden of proof is on the defendant to show that the assured did not use such due ctiligence, or that he did thus expose himself to such danger. I will pass this decision also without further comment.
    In Moody v. Insurance Company, 52 Ohio State, 12, it was held:
    “The conditions precedent, performance of which the plaintiff 'is required to plead in an action on such a policy, include only those affirmative acts which are necessary in order to perfect his right of action on the policy, and, it may be, other acts of like nature. Conditions which provide that the policy shall become void, or inoperative, or the insurer relieved wholly or partially from liability, upon the happening of some event, or doing, or omission to do some act,' are matters of defense, and to be available must be pleaded, and their breach alleged. ’ ’
    This in itself is not quite pertinent to the case at bar, but I cite it as in line with some later decisions which are in harmony with it in principle and which approach perhaps more closely the precise question which we have here. There are some authorities cited in the argument of counsel in the 52d Ohio State, which should be read and considered in connection with the question here.
    In the 56th Ohio State is the case of U. S. Mutual Accident Association v. Subbell, page 516. Here it is held that death caused by accidental drowning is death through external, violent and accidental means within the meaning of the stipulation of an accident policy which gives indemnity against death by such means. Passing from the syllabus to the statement of the case on page 517, wé have this fact, as to the pleadings, given:
    “The answer set up that a condition of each of the policies was that the ‘contract shall not extend to or cover voluntary exposure to unnecessary danger.' " * * #
    On page 526 of the case cited, Judge Spear, speaking for the court, says:
    ‘ ‘ It being thus sufficiently shown by the evidence of the plaintiff, that the assured came to his death within the general terms of the policy, the burden rested upon the company to prove that a recovery was defeated by reason of the exception pleaded, viz., that death was the result of ‘voluntary exposure to unnecessary danger. ”

      I will come back to this case a little later.
    In tbe 68th Ohio State, 151, is the case of Aetna Life Insurance Company y. Dorney, a ease cited by counsel during argument. In the second syllabus of the case I read:
    “If a policy of insurance against accident contains a stipulation that the insurer shall not be liable on account of the death of the assured if it results wholly or 'partly from infirmity or disease, the stipulation is available as a defense notwithstanding Sections 3625 and 3626, Revised Statutes, whose effect is limited to defenses founded on fraud or misstatement in the application. ’ ’
    The court refused an instruction which' the defendant recpiested, and which the Supreme Court held was erroneously refused. It is this:
    “Fourth. If you find from the facts and circumstances proved that the coats of the stomach of said George S. Dorney had been eaten through by an ulcer and was left in a weakened and diseased condition, and that but for such disease and weakened condition of his stomach.the injury which caused his death would not have resulted from anything he did on the 23d day of October, 1899, then and in that case the plaintiff can not recover and your verdict must.be for the defendant.”
    The court held as above stated that the instruction was pertinent and should have be.en given. It will be observed that the language is not “If you fail to find that he was not diseased,” but “If you find from the facts and circumstances proved.” Of course this is not determinative of the question as to whether it is necessary to allege as a defense or prove that the person was afflicted with a disease which caused the death, but it hints in that direction, and taken in connection with the language in the syllabus itself that it is available as a defense, it seems to us that it is an indication of the understanding by the Supreme Court as to where the burden would rest.
    I said that I would return to the case in the 56th Ohio State, and I do so to examine the rule therein given' in connection with the language of the policy in the case at bar. This defense as made by the defendant is under the fifth clause of the policy, and I read the part of it which is pertinent to the question which we are considering:

      “This insurance shall not cover death resulting wholly or partly, directly or indirectly, from * * * disease in any form, nor shall this insurance cover accident, injuries, disability, or death, resulting directly or indirectly from voluntary overexertion, or from voluntary exposure to unnecessary danger.”
    It is a continuation of the same paragraph, and it is a use of the precise language that we find in the policy in reference to disease in any form and voluntary exposure to any danger. In other words, the policy does not cover death resulting from disease in any form, nor does it cover death resulting from voluntary exposure to unnecessary danger. ■ I call especial attention to this, because the precise point decided in the 56th Ohio State case, supra, is that “voluntary exposure to unnecessary danger,” was a matter with regard to which the burden rested upon the company. If that is true as to that specific cause of death, it would seem equally true as to disease, that is, any special disease, upon which the defendant relied to defeat a recovery.
    It is a very difficult thing to harmonize an instruction on the one hand, that the plaintiff must show that the death was caused alone by accident with another that as to any specific cause of death which with the accident contributes to it, the burden is on the defendant to point out its claim in that regard and to establish them by proof, and yet we have analogous cases in practice.
    In this case, although the plaintiff is required to allege in general terms matter which entitles him to the relief sought, when it comes to specific matters it is incumbent upon the defendant to make the allegations and proof, to point out specifically wherein the plaintiff is not entitled to recover. To illustrate: In this policy, the fifth clause, in addition to the possible causes of death already quoted, provides that the insurance shall not cover death or disability resulting wholly or partly, directly or indirectly, from intoxication, or while intoxicated, or from or while violating law, or from hernia, or from bites or stings of insects. It will hardly be claimed that it is incumbent upon the plaintiff either to allege or prove that he had not been bitten or stung by an insect, that he was not intoxicated at the time of the injury, and if so, it was not incumbent upon him to show that the walls of his arteries had not become impaired by disease. In other words, he was not required to prove that he was not afflicted with any particular disease. It may have been incumbent upon him to trace his death to the injury as a direct sequence, and we are somewhat inclined to hold that having done this he has made a prima facie case. It may have been necessary for him to show in a general way that he was in health, but it was not incumbent upon him to prove that his death was not due to his being intoxicated, or to any of these other specific things to which I have referred. The Supreme Court has held that it was not incumbent upon him to show that his death was not caused by involuntary exposure to unnecessary danger, mention of which we find in this same clause, but that it was incumbent upon the defendant to prove that his death was caused by such fact.
    The judge below attempted to draw this distinction, and it was a pretty difficult and a pretty fine distinction to draw. It was accomplished with difficulty and in some places it seems as if the judge had come pretty close to the line between correctness and error, but we are inclined to think upon the whole that he accomplished his difficult task with reasonable accuracy and correctness, and that, with the aid of some definitions that he gave and responses to instructions asked by the defendant as well as the plaintiff, he relieved the case from any possible prejudice to the defendant from his general instructions.
    It is said that the court below confused the word “proximate” with the word “sole”; that he used the two words as synonomous, and it looks to us as if he had done so. In fact, in one part of the charge he almost expressly says that the word “proximate” is to be treated as equivalent to the word “sole” or synonymous with it. But the fact that he did so treat these words in itself, in our judgment, took away whatever injurious effect there was in some of the instructions that he gave as to the plaintiff being entitled to recover if the death was proximately caused by the injury, because he defined it substantially as meaning “solely” caused by the injury. Tie had made it perhaps reasonably clear in the first instructions that he gave at the request of the parties and in the general charge. But to avoid any possible cloud upon the charge, to take away whatever danger there might be to the defendant, counsel for the defendant properly attempted to guard the -jury from any difficulty of understanding what the court was trying to tell them. This was at the conclusion of the charge and before the case was finally submitted. A request had been made for certain special findings of the jury, answers to interrogatories, the fourth of which was: “Was the injury the proximate cause of his death ? ’ ’
    It was essential that the injury should be the proximate cause of the death, as well as that the matter should not be complicated by other cause such as was specified in the policy as exonerating the company from liability, so that the interrogatory was proper enough, and the use of the word “proximate” in that request, in the interrogatory, was a correct one. The court had stated to the jury substantially that it was necessary that it should be the proximate cause, the only trouble in that respect with his charge being that he had also said that he used the word as equivalent to “sole.” The defendant’s counsel asked the court as follows, at the same time objecting to this interrogatory :
    “Before the jury retires I want to note an objection to the special findings, especially the last, to see that that is not put before the jury so as to confuse them and lead to wrong results. ‘Was the injury the proximate cause of his death?’ The jury ought to be charged that the court is using the term ‘proximate’ meaning the sole cause, independent of all other causes.
    “The Court: That is correct. Gentlemen of the jury, the proximate cause of the death in the meaning of this contract is the sole cause of the death, as I have used that term in my instructions. ’ ’
    As I have already said, the words “proximate” and “sole” are not synonymous. . As a matter of law we can not so consider them. But it was not necessary that this jury should be taught law any further than was necessary for their consideration of this case. The court gave them an instruction which was legally and abstractly erroneous, yet at the same time he instructed them as to just how it was to be applied, and no prejudice resulted if the application was correct. In other words, if he said to the jury-that the injury must be the proximate cause of the death and at the same time, but in another part of his charge or instruction, at the request of counsel, told them that he meant by that that it must be the sole cause of death, then he was telling them precisely what counsel for defendant was claiming all through the case to be the law that the injury must be the sole cause of death, and that the court had repeatedly in substance told them in other phraseology. And although he had told them that it was incumbent upon the defendant to show a particular disease, or that he was diseased, he had never departed from the proposition with which he started out, that as an ultimate fact the death must have been caused solely, or, as he expressed it “proximately,” meaning the same thing, by the injury. The jury then were instructed in substance that if the contention of fact which the defendant was making was true, that some other cause than the falling on the sidewalk contributed independently to the unfortunate result, the death of the man injured, then the plaintiff, the beneficiary, was not entitled to recover. And that is the substance of the whole case, the gist of the whole contention.
    And we have concluded after a very careful consideration of the ease and study of it in all its aspects, that the judgment of the court below upon the verdict should not be disturbed. We think that substantial justice was done, that the defendant has had a fair trial. Nor are we inclined to disturb the verdict upon the ground that it is contrary to the evidence. There was a conflict of evidence, a number of experts testified on both sides, about as many upon one side as upon the other; and remembering that to establish any particular latent disease, the onus was upon defendant, we think that the jury was fairly justified in arriving at the conclusion to which' they came that the plaintiff was entitled to the verdict sought. And with these views the judgment of the court below will be affirmed.

      Doyle, Lewis & Schaufelberger, for plaintiff in error.

      Potter & Potter, for defendant in error.