author: PARKER, J.

text:
    WILLS — EVIDENCE—JURY.
    [Auglaize (3rd) Circuit Court,
    November 25, 1903.]
    Day, Norris and Parker, JJ.
    (Judge Parker, of the Sixth. Circuit, sitting in place of Judge Mooney, of the Third Circuit.)
    Lydia M. West, Exrx., v. Lillian Knoppenberger.
    1. Testamentary Capacity Although Body and Mind Enfeebled, etc.
    A person may possess, testamentary capacity even though enfeebled in body and mind by age and disease; though his memory may be impaired in a degree, and his mind disturbed by hallucinations or delusions (not necessarily influencing the mind in making testamentary disposition of property) ; though his mind may suffer discomposure and derangement in consequence of melancholy, grief, misfortune, sickness or disease (not of a nature to deprive him of the rational faculties common to men); and though he lacks contractual capacity or capacity to transact the ordinary business of life. Hence, it is improper to charge the jury in a ■will contest that “in order to be able to make a will it is necessary that a man shall have mental capacity sufficient for the transaction of the ordinary business of life;” such an instruction is not cured by giving elsewhere in tbe charge proper rules and criteria for determining testamentary capacity, but which do not qualify such improper charge.
    2. Burden of Proof Upon Contestants to Show .Lack of Testamentary Capacity.
    The order of probate is prima facie evidence of the due execution, attestation, and validity of a will, and when such order is offered in evidence in an action to set the will aside, the burden of proof is upon the contestants to prove by a preponderance of evidence that testator was of unsound mind and memory at the time of executing his will, or, was under restraint or control of undue-influence.
    3. Defendant in Will Contest not Required to Show Affirmatively Testamentary Capacity.
    A charge from which the jury may assume that the burden of proof is upon the defendants in a will contest to show affirmatively the testamentary capacity of testator, is improper; the charge should require contestants to show affirmatively lack of testamentary capacity before the will could be set aside.
    4,. Jury Must Find That Testator did not Exercise his Own Free Will.
    An instruction that there is no valid will unless the jury believe from the evidence that testator, of his own free will, not only intended to make such disposition of his property as made in the alleged will, but was' also capable of knowing what he was doing, understanding to whom he was giving his property and in what proportions, and of whom he was depriving it as his heir and who would otherwise have inherited it, and was also capable of understanding the reasons for giving or withholding his bounty to them, is improper; the charge should have been to the effect .that the will was-valicj. unless the jury find from the evidence that testator did not make such disposition purposely and of his own free will.
    5. Hypothetical Question Containing Indicia of Lack of Testamentary Capacity, Competent.
    A hypothetical question propounded to an expert by the contestant in an action to set aside a will which indicates what contestant claims to be the physical and mental condition of testator at the time of making his alleged will, and that as a consequence of such condition he was of unsound mind, which indicia of lack of testamentary capaci'y are controverted in the case, is competent where there is evidence tending to establish the facts assumed in the question; and while an answer directly responsive to such question to the effect that testator was mentally unsound would be insufficient to set the will aside, yet it is competent as tending to establish lack of testamentary capacity.
    ¡6. Expert’s Opinion of no Value Unless Facts Assumed in Hypothetical Question are Found True — Immaterial Facts, etc.
    The opinion of an expert based upon facts assumed in a hypothetical question is of no value unless all the assumed facts forming the basis of such opinion are found by the jury to be true; and where such hypothetical question assumed the existence of various facts not apparently immaterial, which the jury may have found to be not established by the evidence, and there is nothing in the evidence to indicate that the expert deemed such assdmed but unproved facts immaterial or unessential to the basis of the opinion testified to, it was improper to charge the jury to the effect that such opinion may be entitled to some weight or value though the facts assumed in the question upon which the opinion was-based may not be true, provided the jury should find that the facts were substantially as assumed. Therefore, a charge that “the weight to be given to such opinion depends largely upon * * * whether or not the question and statement of facts contained in it, upon which the opinion was expressed or based, was a true statement of the facts as to testator’s condition, as you find it to exist from the testimony,” and that “if the question or the statement of facts put to the witnesses upon which they have expressed an opinion, do not embody the facts as you find them to have been established by the testimony, then the opinion of said experts is of little, if any value in determining the question in the case.” “If, however, the questions embody substantially the facts as you find them to have existed,” then the opinions are to be given such weight as the jury think them entitled to, is held to be erroneous.
    7. Whether Facts Assumed in Hypothetical Questions are Material or ImMATERIAL NOT FOR JURY.
    It is not within the province of the jury to determine what facts assumed in a hypothetical question propounded to an ^expert are material or immaterial. The questions should be so framed as to include only such facts as the evidence may warrant the jury in finding to exist, and not so as to allow the jury to speculate upon what is material and what immaterial. A fortiori, is this true where the question assumes but two main facts both of which seem to have been regarded as material by the experts.

      •8. Questions Submitted to Jury Only Answered When General Verdict.
    The court may properly refuse to submit questions to the jury for answer under-Sec. 5201 Rev. Stat. when the request therefor fails to contain the condition-that such questions need only be answered in case a general verdict is rendered.
    Error to the common pleas court of Auglaize county.
    Stueve & Connaughton, Jesse Stephens and Sumner & Tucker, for plaintiff in error:
    The jury should have been instructed that if any fact assumed by the expert, as the basis of his opinion, was not established by the evidence, they should regard the opinion of no value; a charge that the expert’s opinion “is of little, if any, value” is erroneous. Williams v. JBrown, 28 Ohio St. 547; Saffin v. Thomas, 4 Circ. Dec. 438 (8 K. 253) ; Williams v. Brown, 28 Ohio St. 547; Sharkey v. State, 2 Circ. Dec. 443 (4 R. 101) ; Lake Erie & W. Ry. Co. v. Mulcahy, 9 Circ. Dec. 82 (16 R. 204) ; Lawson, Expert & Opinion Evidence 166; General Convention v. Crocker, 4 Circ. Dec. 619 (7 R. 327).
    The rule, as> stated by the court, holds the degree of testamentary capacity too high. The law does not require that the testator should have a perfect mind and a sound body, and yet the construction to be placed upon the language of the court would convey that idea. Under-hill, Wills Secs. 89, 87, 90.
    Plaintiffs in error submitted certain questions, in writing, and requested the court to require the jury to answer the same. These questions should have been submitted to the jury, and the court’s refusal to do so was error prejudicial to the rights of plaintiffs in error. Section 5201 Rev. Stat.; Elkinton v. Brick, 44 N. J. Eq. 154 [15 Atl. Rep. 391; 1 L. R. A. 161] ; also Campbell v. Campbell, 130 Ill. 466 [29 N. E. Rep. 620; 6 L. R. A. 167].
    Goeke & Hoskins, Layton & Son and D. F. Mooney, for defendant in error. ,
   PARKER, J.

.The proceeding in the court below was by Lillian Knoppenberger, defendant in error herein, against Lydia M. West as executrix of the last will and testament of James Knoppenberger, deceased, and as sole devisee and principal legatee of said decedent, to contest said last will' and testament on the grounds: First, that at the time of making said will, said decedent was mentally incapacitated from making a testamentary disposition of his property; and, second, because said Lydia M. West had exercised undue influence over his mind causing him to devise and bequeath his property to her. The verdict of the jury was in favor. of the contestant generally, finding that the paper writing is not the last will and testament of James Knoppenberger, deceased. A motion for a new trial was made on various grounds, involving, among other questions, those which we shall discuss, which motion was overruled and judgment was entered upon the verdict. The principal grounds urged in this court against said verdict and judgment are: First, that the verdict is against the weight of the evidence; second, that certain hypothetical questions asked by counsel for defendant in error of expert witnesses were improper in form, not being authorized or justified by any evidence adduced; third, that the court erred in failing to charge certain propositions submitted by counsel for plaintiff in error; fourth, that the court erred ifi refusing to submit certain interrogatories to be answered by the jury at the request of counsel for the plaintiff in error; and, fifth, that the court erred in its charge on the subject of testamentary capacity, also on the subject of expert testimony adduced in response to hypothetical questions, and also with respect to the burden of proof.

Our conclusions upon other questions seem to us to make it unnecessary and inadvisable to consider and pass upon the weight of the evidence, and we shall not do so. For the same reasons we shall not pass upon the question whether the court should have charged the jury that there was no evidence tending to show undue influence, and that therefore they should find on that question in favor of the defendant below. The hypothetical question to which objection is urged, submitted to several physicians who were witnesses in the case, was as follows:

“What in your opinion would be the condition of a man’s mind as to being sound or otherwise, if in 1899 or 1900 he had contracted the disease of syphilis, and in July, 1898, was found in the last stage of syphilis, with pains in his head about the base of the brain, and throughout the head, with the scars of syphilitic ulcers on his lower limbs, and was, on the second day of November, 1898, suffering in the last stage of cancer of the lower bowel, not having had an operation of the bowels for seven days.”

The question indicates what the contestant claimed was the physical and mental condition of the testator at the time he executed the alleged will, i. e., that in consequence of the physical infirmities described, his mind was unsound. That the testator was afflicted with syphilis was denied, and that he had not had a movement of the bowels for so long a time as supposed in the question was also controverted; but it cannot be said that there was no evidence adduced tending to show that this was the physical and mental condition of James Knoppenberger at that time; and while it is true that an answer directly responsive, such as was given by certain of the witnesses to the effect that he was then mentally unsound, would not be sufficient to warrant the setting aside of the will since one need not be in all respects mentally sound to possess testamentary capacity, yet such evidence would be competent and would tend to establish or would be a step towards establishing such mental condition as would render one incapable in law of making a valid will. We therefore hold that the court did not err in allowing this question to be asked and answered.

From the record it is uncertain to our .minds whether the four propositions submitted on behalf of the plaintiff in error to be charged to the-jury should be regarded as a series, a defect in any one of which would justify the refusal of all, or whether they should be regarded as separate,, complete and independent propositions.

The court was asked to charge these propositions, and we are of the opinion that the subsequent waiver of the request to charge the same before argument did not excuse the court from giving them at all, though the court was thereby excused from adopting the language of counsel,, and it is apparent from the record that the court so understood the matter. We are agreed that in the main, these four propositions are correct -T also that the substance of most of them was given in the charge to the jury. We are not quite agreed as to whether they should be regarded as, a series, or independent propositions, nor as to whether the third proposition, to the effect that there was no evidence tending to show that James Knoppenberger was under undue influence or restraint in attempting to make his last will and testament, should have been given; and since the substantial question involved in the alleged error of the court in its charge may be discussed and disposed of without special reference to these propositions which he was requested to charge, we will not pass, upon the question whether the court erred in failing to charge as requested.

The request to the court to submit certain questions of fact to the jury appears in the record as follows:

“Thereupon the defendant, Lydia M. West, requested the court to submit the following questions of fact to the jury with the direction-that they answer the same.”

Then follows a series of seven questions, all of which the court refused to submit to the jury. In view of the form of the request, it seems clear that the court did not err in refusing to submit these questions, since the Supreme Court has held in the case of Gale v. Priddy, 66 Ohio St. 400 [64 N. E. Rep. 437], reading from the second paragraph of the syllabus :

“Section 5201 Rev. Stat., so far as it relates to special findings upon particular questions of fact, is mandatory only when the request therefor contains .the condition that the questions which are submitted shall be answered in case a general verdict shall be rendered.

It will be observed that this request did not contain the requisite condition.

Coming now to the charge of the court, and taking up, first, the part relating to testamentary capacity, we find that the court charged as follows in the very introduction of this question to the jury:

“In order to be able to make a will it is necessary that a man shall have mental capacity sufficient for the transaction of the ordinary busi-. ness of life,” etc.

This, we think is clearly erroneous. Under the authorities, one may be lacking in capacity for the transaction of the ordinary business of life, and lacking in contractual capacity, and yet he may have testamentary capacity. See Page, Wills Sec. 96; Underhill, Wills Secs. 87, S8, 89 and 139; Guild v. Hull, 127 Ill. 523 [20 N. E. Rep. 665] ; Campbell v. Campbell, 130 Ill. 466 [22 N. E. Rep. 620; 6 L. R. A. 167]. See also Beach, Wills Sec. 101; 1 Jarman, Wills (5 Am. from 4 London ed.) p. 96, notes by Randolph Talcott.

In the text books referred to. many cases are’ cited in support of the proposition that the same degree of capacity is not requisite to the making of a valid will, that is requisite to the making of a contract or the management of the ordinary business of life. The authorities seem to be quite uniform In support of this proposition.

Elsewhere m the charge proper rules and criteria for determining whether testamentary capacity existed are well stated by the trial judge, but this erroneous rule is nowhere qualified and serves itself as a qualification of an addition to all other rules stated. We regard this as a serious, prejudicial and fatal error in the charge.

As to the burden of proof, the rule was 'correctly stated by the learned judge when he skid that “the order of probate being prima facip evidence of the due execution, attestation and validity of the will, it devolves upon the plaintiff to prove by a preponderance of the evidence that at the time said will was executed, the said James Knoppenberger was not of sound mind and memory, or that at the time he was under restraint or control by some undue influence,” and in other parts of the charge statements are made consistent with this, bearing upon the question of the burden of proof; but, on the other hand, in various" places statements are made as to results that should flow from finding, or not finding certain facts that in effect shift the burden of proof upon the defendant; for instance, it is said, “I say to you that the will in this case is not a valid will unless the jury believe from the evidence under the rules I will hereafter give you, that the testator, James Knoppenberger, deceased, not only intended to make such disposition of his property as is therein made, of his own free will, but was also capable of knowing what he was doing, of understanding to whom he was giving his property, and in what proportions, and of whom he was depriving it, as his heir, who would otherwise have inherited it, and was also capable of understanding the reasons for giving or withholding his bounty to ’them.”

Manifestly this is wrong, and should have been stated in this way: “I say to you that the will in this case is a valid will, unless the jury find from the evidence that the testator, James Knoppenberger, did not intend to make such disposition of his own free will,” etc.

Reading again from the charge: “If you find from all the evidence, facts and circumstances in this case, that at the time this paper writing was executed, the testator had sufficient mental capacity to understand unaided, the nature, the amount, the kind of his property and the claims and the names of those entitled to his bounty, then you may pass to the second proposition,” etc.

Again: “If you find from the evidence that the paper writing purporting to be the last will and testament of James Knoppenberger is the product of a sound and disposing mmd as I have described to you; that it was executed by him, that lie understood it. that he knew of what property he was possessed and the persons that would naturally be entitled to his bounty, if he comprehended and understood his true relations to this plaintiff and other members of his family, and that at the time he was not under any restraint or coercion as I have described to you,, you will find that this paper does constitute the last will and testament of James Knoppenberger, deceased.”

As legal propositions applicable to the facts in issue, these statements are unassailable. Clearly such a state of facts as is stated provisionally would support the will. But the trouble with these statements is that they naturally give the jury to understand that they must find affirmatively that such a state of facts exists before they could rightfully return a verdict sustaining the will, whereas the matter should have been set before them so they would have understood that unless they found affirmatively the antitheses of the state of facts recited, or some of them, they must sustain the will. In this also we find that the court erred to the prejudice of plaintiff in error.

On the subject of the hypothetical question before referred to and the evidence adduced in response thereto, the court charged the jurv as follows •,

“As bearing upon the question in the case, both plaintiff and defendants have called medical experts, to whom hypothetical questions, have been put for the purpose of enlightening you upon the issue between the parties in this case; that is, persons of experience in the medical profession have been called, to whom questions embodying certain statements as facts in the case have been put, and upon which statements of facts, the witnesses have given their opinions. This is testimony that should' he considered by you in determining this question between the parties; the weight' to be given to it, depends largely upon the skill and the experience and the knowledge of the experts, their learning, their capacity and whether or not the question and statement of facts contained in it, upon which the opinion was expressed or based was a true statement of the facts as to the testator’s condition, as you find it to exist from the testimony in this case. If the questions or the statement of facts put to the witnesses upon which they have expressed an opinion, do not embody the facts as you find them to have been established by the testimony, then the opinion of said experts is of little, if any, value-in determining the question in the case. If, however, the questions embody substantially the facts as you find them to have existed and from the testimony, then you should give to them such weight as, in your judgment, in the light of all the testimony and the surrounding circumstances in this case, they would be entitled to in the determination of these questions.”

This charge seems to have been copied almost literally from Kin-kead’s Instructions & Entries Sec. 171, and is said to have been given, in a charge in some case. It does not appear to have received the ap-prqval of any court of last resort, and so far as we know it has never been questioned or tested. In our opinion it is faulty in several particulars. It implies that the answers of the expert may be entitled to some-weight, though the statements of facts assumed in the hypothetical- question should be found by the jury to be untrue. Observe the language:

“This is testimony that should be considered by you in determining-this question between the parties; the weight to be given to it depends largely upon * * * whether or not the question and statement of facts contained in it, upon which the opinion was expressed or based was a true statement of the facts as to the testator’s condition as you find it to exist from the testimony in this case."

It also implies that the testimony may be regarded as having some-value though the hypothetical question -did not embody the facts as the jury might find them to have existed. Note this language:

“If the questions c?r statements of facts put to the witnesses upon which they expressed an opinion do not embody the facts as you find them to have beek established by the testimony, then the opinion of said experts is of little' if any valué in determining the question in this case.”

The paragraph immediately following may have corrected this fault in a measure if regarded by the jury as a modification of the paragraph just quoted, but it is not clear that it was so intended or should have been so regarded,, and even if so intended and regarded the charge would not be quite right, but would still involve the grave fault that it left it to the jury to say what was a substantial compliance of the requirements of the hypothetical question in the way of proving facts assumed; or, in other words, what facts assumed were material' and what were immaterial. In this particular case we regard this as a grave fault and error for the reason that the hypothetical question is brief and embodies bub few assumed facts — in fact; but' two main facts, both of which seem to have been regarded by the experts as material, to wit: First, that the testator at the time he made his will was in the last stage of syphilis with consequent pains and disabilities, and, secondly, that at that time he was suffering in the last stage of a cancer of the lower bowel, and had not had a movement of the bowel for seven days. Usually hypothetical questions involve many facts, some of which may properly be deemed material, and others immaterial, but it is never safe to leave a jury to speculate upon what are material and what are immaterial of the assumed facts of a hypothetical question. The examiner should so frame his questions and vary their forms as to include, in some of them at least, only such facts as the evidence may warrant the jury in finding he had established. If he should fail to do this, the legitimate result would be a disregard by the jury of the answers given to such question. But even if a jury could be warranted in any case in speculating upon what was material and what immaterial in a hypothetical question, or, in other words, whether the facts assumed had been substantially proven, it is clear to us that no such latitude should be given to a jury in this case where the hypothetical question assumes but two main facts, both of which seem to have been regarded, by the expert^ testifying, as material facts. As has been stated, though the answer called for by the hypothetical question before mentioned would not if relied upon, determine whether the testator was possessed of testamentary capacity, yet it tended to throw light upon the question and therefore was admissible. Though the jury should believe and rely upon an answer to the effect that the testator was not sound mentally at the time he made his will, that alone would not justify it in setting the will aside. However, it would be a fact competent to be proved because tending with other evidence to show testamentary incapacity, and because of such answer to the hypothetical question it was proper for the court to charge upon that head. The charge however' should have set forth clearly that the jury must find the facts to have existed as assumed, otherwise they should give no weight .to the answers. See Rogers, Expert Testimony Sec. 32 and cases there cited. In a case in the supreme court of Michigan, Mr. Justice Morse says:

“The answer of an expert witness to a hypothetical question must be supposed to rest on all the facts stated in such question; and if one of these facts is not found in the case, the jury must discard the answer to the question, under all the authorities. And the reason of the rule -is founded on principle, and is clearly apparent without argument.”

So in another case before the same court, the trial court charged .the jury that it was important for them just as far as they could, to look into the evidence and determine- whether the facts assumed in the hypothetical question actually existed, adding “because if one fact supposed to be true, included in the question, is untrue, not supported by the evidence, the opinion of the doctor would be valueless. He gives his opinion upon a certain state of facts supposed to be true, and we don’t know what his opinion would be if one of these facts were withdrawn.”

The cases cited from Michigan are Turnbull v. Richardson, 69 Mich. 400, 420 [37 N. W. Rep. 499] ; People v. Foley, 64 Mich. 148, 156 [31 N. W. Rep. 94]. See also Blashfield, Instructions to Juries Sec. 246. I quote part of the section:

“It is proper to instruct the jury to disregard the evidence (opinions) of expert witnesses based upon hypothetical questions, if the jury should find the hypothesis involved in the question to be not in accordance with the facts.” And after pointing out exceptional cases where the hypothesis assumed need not be fully sustained by the evidence, the author quotes the following instructions given in Hall v. Rankin, 87 Iowa 261 [54 N. W. Rep. 217, 218] and condemned by the supreme court of Iowa, to wit:
“ Tf the facts, stated as a basis for the hypothetical question propounded-to the medical experts in this-case were not substantially correct, as.shown by the evidence introduced on the trial of the case, then the opinion given by -the experts based upon such ’assumed state of facts •is entitled to but little or no weight, as may be determined from the evidence.. That is to say, the-hypothetical facts upon which'the 'question is based must be substantially correct, to entitle the conclusion drawn by the expert to have any considerable weight.’ ”

The reviewing court said of this instruction that it is erroneous as conveying the impression “that the opinion of the expert might have some weight even though the jury should find the facts assumed as a basis for the opinion were incorrect, * * * the sole value of the opinion must of necessity depend upon the correctness of the statement of facts upon which it is based. If that is incorrect, then the opinion can have no weight or value therefor.”

In the case of New Jerusalem Church v. Crocker, 4 Circ. Dec. 619, 621 (7 R. 327), heard before Judges Smith and Swing of the first circuit, and Shauck of the second circuit (now of the Supreme Court), in the opinion by Judge Shauck, it is pointed out that with respect to a material fact assumed in the hypothetical question the evidence was conflicting, and the trial judge charged that:

“ ‘The value of that opinion is, therefore, increased or diminished in proportion as the supposed facts included in the hypothetical question tally with the facts proved in the case.’ ”

Of this, Judge Shauck says:

“Logically, if any facts which the evidence does not establish are assumed as a part of the" foundation of the expert opinion, the opinion is of no value for the purposes of the case.
“The theory upon which opinions of experts are admitted is, that the witnesses have knowledge not possessed by the jurors, which forms a foundation for safe conclusions in a particular case. As jurors are not supposed to have knowledge of the value of the several facts assumed as the basis of the opinion of the expert, they should not be set to speculating what his opinion would have been if any fact which the evidence fails to establish had been omitted from the case. If it were otherwise, there would be no reason for the rule that a hypothetical question which .assumes facts which the evidence does not tend to establish, is incompetent. The portion of the charge quoted refers to the facts assumed in the question put to the witness; while the expert’s testimony affirmatively shows that many of those facts were not recognized by him as indicative of either sanity or insanity. The jury should have been instructed that if they were of the opinion that any fact assumed by the witness, as the basis of his opinion, was not established by the evidence, they should regard his opinion as of no value, unless hi's testimony shows, that such fact affected only the confidence with which the opinion was. held.
“While the instruction above quoted might have been intended to convey this meaning to the jury, it might have been understood by them' as prescribing a law of mathematical proportion as the rule for ascertaining the value of the opinion, if all the facts were not established. There was nothing in the charge to prevent such misleading result.” ’

We do not find the rule stated anywhere more clearly, nor the reasons therefor more forcibly, than in the* opinion by Judge Shauck from which the above quotation is made. And while, with respect to the charge in the case at bar, it could not be fairly said that any law of mathematical proportion was prescribed as a rule for ascertaining the value of an opinion, if all the facts were not established, yet the jury were at liberty to give weight to the opinion according to any law of proportion they might be pleased to adopt, if all the facts were not established, or if certain of the facts assumed were shown to be incorrect, and therefore we regard what is quoted from the opinion of Judge Shauck as pertinent in the case at bar.

When we come to read the law on the subject of testamentary capacity, and consider that one may have such capacity even, though of extreme old age; even ‘though enfeebled in body and mind by age and disease; even though the memory may be impaired in a degree, and the mind may be disturbed by hallucinations or delusions (not necessarily influencing the mind in making a testamentary disposition of property) ; even though the mind of the testator may not be sound in the sense of being whole, unbroken, unimpaired, unshattered by disease or otherwise, but it may suffer discomposure and derangement in consequence of melancholy, grief, sorrow, misfortune, sickness or disease, yet (if such discomposure or derangement is not so great as to deprive the testator of the rational faculties common to men) he may still have testamentary capacity; I say, wheNwe come to consider this in the light of the evidence in the case at bar as to the physical and mental condition of the deceased, and the simple character of the will he signed, we feel bound to hold that the charge in the particulars pointed out contained serious errors prejudicial to the iplaintiff in error, and which may have produced a result different from that which might have been produced by a correct charge. In this case, because of the state of the evidence fro and con as to the testamentary capacity of the deceased, the evidence positive and negative, or, I may say, the paucity of evidence as to his loss of memory, lack of capacity to transact his ordinary business, delusions operating upon his mind .so as to influence him in the disposition of his property; unnatural aversion to the natural objects of his bounty in view of their conduct toward and treatment of him; any thing complicated or difficult in the problems to be considered and solved in the making of such disposition of his property as was attempted by the will in question, and other elements and-subjects of inquiry-ordinarily submitted to the jury as tests of testamentary capacity; and especially in view of the general character of the answers of physicians to the hypothetical questions mentioned, i. e., that in their opinions, his mind was not, or might not have been sound, we think that the court should have given more prominence and emphasis to the phase of the law that sustains testamentary dispositions where the mind of the testator may not have been in all respects-sound or the memory perfect, or the mind entirely clear or free from prejudice or even delusions (ideas not sufficiently elucidated in the charge), and the court should have avoided so charging as to in effect, shift the burden of proof and impose it upon the defendant, a fault quite apparent in the charge.

Because of these errors, the judgment of the court below is reversed and the verdict is set aside, and the case will be remanded to the court of common pleas to be there proceeded with, according to law.

Day and Norris, JJ., concur.


source: Caselaw Access Project

author: MOONEY, J.

license: Public Domain

text:
    EMINENT DOMAIN — RAILROADS—STREETS—STREET RAILROADS.
    [Logan (3rd) Circuit Court,
    October Term, 1903.]
    Day, Mooney and' Norris, JJ.
    Cleveland, C. C. & St. L. Ry. Co. v. Urbana, B. & N. Ry. Co.
    1. Railroad RIgbcx of Wav Subject to Eminent Domain, When,
    Land held by a railroad company, whether acquired by purchase or appropriation, which is not used or needed for the proper exercise of its corporate franchises, may be taken for and subjected to an additional public use, the same as the land of any other owner; but the former use cannot be wholly defeated. Hence, a municipality, under its general authority to establish streets, may extend a street across the fight of way of a railroad company, provided such new use, under the circumstances of the particular case, is reasonably consistent with the former use.
    .2. Street Extension Does.not Supersede Railroad Use- — Damages.
    Where a street is extended so as to take in land used for railroad purposes, the latter use is not thereby superseded; and, in so far as it is interfered with, the question is one simply of damages. But when land held by a railroad company is not used or needed for the purpose of its acquisition, its titles therein' becomes absolutely extinguished by such street extension.
    3. Interference of Railroad Use by Street Use Deemed to Have Been Compensated in Street Proceeding.
    Añy interference with a railroad company’s úse of land caused by the use of the Same land for ordinary-street purposes, (such land having-been taken in by a street extension), being simply a question-of compensation, will be deemed to have been adjusted in- tbe street extension proceeding in which the consistency of the two uses was determined.

      4: Compensation in Appropriation Proceeding Does not Cover New Use.
    Compensation paid by a municipality to a railroad company, in .a street extension proceeding, on account of interference with the company’s use of land by reason of subjecting the land to ordinary street purposes, will be held to include all uses of such land for street purposes; but will not cover new servitudes upon the land.
    6.STREET Railway Along Street not a .New Use.
    .The construction and operation of a street railway along a street is an' ordinary street use, and not a new servitude entitling an abutting owner, or the owner of the fee of land subject to a street easement, to additional compensation. Hence, a railroad company whose right of way has been crossed by, a street established in a street extension proceeding, 'wherein compensation was paid to the company therefor, does not, thereafter, have such an ownership or title to the land so jointly used as will require a street railway company, as a condition precedent, to proceed by appropriation, or otherwise, to acquire from it the right to construct a proposed line of street railway along such street extension over and across its tracks and right of way.
    6. Street Cae a Vehicle.
    A street car propelled by electricity is a “vehicle” within the meaning of an admission by a railroad company, in an action to enjoin a street railway company from crossing its right of way along the street, that its title and ownership is subject to the right and use of vehicles passing along the street.
    7. Acts 88 O. L. 173 and 88 O. L. 389, Attempting to Amend Secs. 2602, 3437, 3439 Rev. Stat. Unconstitutional.
    As grants of street railway franchises, and the establishment of routes by-municipalities can be provided for by general laws, they are, therefore, subjects of a general nature, and, under Sec. 26, Art. 2 of the state constitution, all laws relating thereto must have uniform operation throughout the state. Hence, the amendatory act of April 12, 1883 (80 O. L. 173), purporting to amend Secs. 3437 and 3439 Rev. Stat., relating to street railways, which excepts from its operation Montgomery county, is unconstitutional; and as a partial repeal of said sections would indirectly accomplish the very purpose which the constitution designated absolutely to prevent, the repealing clause of said attempted amendatory act is also unconstitutional, thereby leaving original Secs. 3437 and 3439 Rev. Stat. unamended and still in force. The subsequent amendment (88'O. L. 389) of Sec. 2502 Rev. Stat. (repealed 96 O. L. 96), is also invalid for the same reasons.
    8. Question of Notice Undee Sec. 2502 Rev. Stat. May be Raised by Steam Railroad Company, When.
    A steam railroad company which will suffer some inconvenience from the construction and operation of a street railway company along a street, and over it? right of way, is a proper party to, and may, in an action commenced by it to enjoin such use, raise the question whether the notice provided by Sec. 2502 Rev. Stat. (repealed 96 O. L. 96), is a condition, precedent to a municipal grant to the street railway company.
    9. Sections 2501 to 2505 and 3437 Rev. Stat. et seq. Construed.
    Sections 2501 to 2505 Rev. Stat. standing alone relate to street railway lines located and extended wholly within municipalities; See. 2505 Rev. Stat. relates expressly and exclusively to extensions within a municipality of original city lines; and See. 3437 Rev. Stat. et seq. relate to all-lines and extensions, wherever located. In case of conflict as to municipal lines or extensions, the more general provisions of Sec. 3437 Rev. Stat. et seq. must yield to the more specific provisions of Sec. 2501 Rev. Stat. et seq., and the fact that Sec. 2505 Rev. Stat. was placed after Secs. 2501 to 25Ó5 Rev. Stat., by the codification of 1880, does not alter its construction or meaning. .(Section 2501 is now Sec. 1530-184 Rev. Stat.; Sec. 2502 was repealed. 96 O. L. 96; Secs. 2503 to 2505 are now. Secs. 1536-186 to 1536-188 Rev. Stat.)
    10. Notice Required by Sec. 2502 Rev. Stat. Required, When.
    An extension of an interurban electric railway line, lying wholly without a municipality, into or through the municipality is, under Sec. 3437 Rev. Stat. et seq., an original or new line; and the notice provided by Sec. 2502 Rev. Stat. (repealed 96 O. L. 96), required to be given by Sec. 3739 Rev. Stat., as a condition precedent to the granting to such company of a franchise to construct such extension within the municipality and along its streets, must be given. But when the franchise is only for the extension of a line already existing and constructed within the municipality, under a former municipal franchise duly granted, such notice is not required.
    11. INTERURBAN RAILWAYS MAY CONSTRUCT EXTENSIONS AND BRANCHES.
    Interurban electric railways, having been classed as street railways by the statutes of Ohio, are governed by the laws relating to such railways; and, after securing the right to do so from the proper local authorities as required by law, may construct extensions and branches from its main line. *
    12. Street Railway May Cross Steam Railroad Tracks at Grade.
    The general rule that in the absence of statutes regulating grade crossings, equity may enjoin such crossings when the rights of the public, or one or the other of the intersecting lines will be materially injured by its existence does not apply to a street and steam railroad crossing; and as such rule does not apply to streets in general, it cannot therefore have any application when the streets are being subjected to an ordinary street use. Hence, as the construction and operation of a street railway upon streets is a proper street use, such company will not be enjoined from crossing the steam railroad company’s tracks at grade, in the absence of statutory prohibition.
    13. Decision of Council in Granting Franchise in Streets not Subject of Review, When.
    The decision of the municipal council in granting to a street railway company a franchise in a street which crosses a steam railroad track at grade, is not the subject of judicial revision, when it does not appear that the council exceeded its power, or that its decision was induced by fraud. Nor will the fact that another street could be used, upon which a safer and better crossing could be constructed, authorize a review; a fortiori when the street railway company has no present right to use such street, and it cannot be assumed that such right could ever be acquired.
    Appeal from Logan common pleas court.
    Plaintiff is a steam railroad company and owns and operates two lines of. railway both of which pass through the city of Bellefontaine and cross Columbus avenue, a street of said city, at grade. These crossings of said street and railroad lines are in the immediate vicinity of the passenger and freight stations, the railway yards, the roundhouse and the extensive máchine and repair shops of plaintiff. Beside the necessary use of these railway tracks across said street in shifting cars and making -up trains, more than twenty-five regular trains of plaintiff pass over said crossing every twenty-four hours. Some of these trains transport United States mails and others of them are engaged in the business of interstate commerce. The roadway of Columbus avenue, as it approaches these lines of railroad, descends at quite a rate from a higher elevation ■or grade to the level of said railroad tracks and somewhat abruptly ascends at, and from the other side thereof. The private grounds abutting upon, and adjacent to said avenue and railroad at these crossings, are several feet higher than the surface of either the avenue or the railroad tracks and are built upon. By reason of such condition the view ■of the street from a train on plaintiff’s railroad approaching said crossing and the view of the railroad track from a vehicle approaching the same, is obstructed until a point is reached within a short distance of the point of crossing. Sandusky avenue is a public street of said city running parallel with Columbus avenue, about 45.0 feet distant therefrom, and crossing plaintiff’s said tracks by means of bridges or overhead crossing.
    Plaintiff or its predecessor in title was the owner in fee of the land now included between the lines of Columbus avenue and near its said track and upon which its tracks áre now located, prior to the establishment of Columbus avenue as a public street, and plaintiff now claims to be such owner “subject only to the right of persons, animals and vehicles to pass along said avenue and over said tracks.”
    Plaintiff and its predecessor in title have maintained said railroad tracks in their present location for more than fifty years prior to May 6, 1903, when this action was commenced.
    Defendant is an Ohio corporation and its charter purports to authorize it to build, maintain and operate a street railway with single or double tracks and all necessary and convenient branches and all other appurtenances using electricity as a motive power for /the transportation, of passengers, baggage, express matter, United States mail and freight, the termini being the cities of Urbana and Toledo, Ohio, and the road passing through this county and , into or through certain other named counties of this state. By ordinance passed April 23, 1901, the provisions, of Secs. 2501 to 2504 Rev. Stat., inclusive, being strictly observed, the city council of this city granted authority to defendant to construct and .operate a Jine of street railway upon and along Main street in this city. This ordinance has since remained unrepealed, and defendant has claimed under it, at all times since its passage, and has since constructed and is now operating said Main street line in accordance with the terms of said ordinance. Said Main street crosses Columbus avenue at right angles and extends north and south in the general direction of a line from Urbana to Toledo.

      October-Tl, 1902, the requisite “ consents ” of property owners first having been obtained, but without any notice as 'provided by Sec. 2502' Rev. Stat., having been given, the city council of this city passed an ordinance and thereby in form granted to defendant the right to construct, 'a line of street railway connecting with and branching from said 'Main street line at the intersection of Main street and Columbus-avenue and extending thence on and along Columbus avenue to the west line of said city. This Columbus avenue line, if constructed in accordance with the terms and conditions of said ordinance, will cross plaintiff’s-railroad tracks at grade, and in the construction of the crossing, it will be necessary to remove a section of plaintiff’s tracks and substitute therefor devices known as frog connections and crossings. These devices-will not constitute as perfect a track for plaintiff’s railroad as the continuous rail now in use. Defendant intends, unless enjoined, to construct said Columbus avenue line in' accordance with the terms of said ordinance, but intends to use frog connections and crossings of the “ most approved patterns and materials.” Defendant has never acquired the-right to pass along said avenue and across said tracks by condemnation’ or contract with plaintiff.
    ■ To construct its principal line from the termini of its Main street line is deemed by defendant, and for just and sufficient reasons, to be impracticable, and defendant has no franchise to construct any line of' street railway on any other street or streets of said city except upon Main street and Columbus avenue, and only upon these as heretofore-stated. Upon these facts, some of which are admitted by the pleadings, some established by evidence at the trial, and some admitted by demurrer to a certain cause of action, plaintiff seeks an injunction against the construction of said grade crossing. The following distinct grounds are urged by plaintiff: First, plaintiff owns the land sought to be taken by defendant and the right so to take has not been acquired by defendant; second, the statutes under which the city council passed the ordinance of October 21, 1902, are unconstitutional and'void; third, if said statutes are valid, the ordinance is nevertheless void because no notice was given as required by -Sec. 2502 Rev. Stat.; fourth,'defendant has by law no power to construct branches, notwithstanding the terms of its charter; and fifth, the proposed crossings are so dangerous to plaintiff’s property and to the travelling public and the proposed use will so impede the movement of plaintiff’s trains and so interfere with plaintiff’s transaction • of interstate commerce and transporation of United States mails, that a. court of equity should interfere by injunction for these reasons- alone.
    West & West and L. J. Hackney, for plaintiff.

      A. J. Miller and Pomerene & Pomerene, for defendant:
    A county road taken into a municipal corporation by the annexation of contiguous territory, becomes subject to the control of the municipal authorities. Wabash By. Co. v. Defiance, 52 Ohio St. 262 [40 N. E. Bep. 89] ; Lawrence By. Co: v. Mahoning Co. (Comrs.) 35 Ohio St. 1;, Cincinnati & H.'Elec. St. By. Co. v. Bailway Co. 12 Circ. Dee. 113 (21 B. 391) ; affirmed by the Supreme Court without report, January 22,. 1901, Bailway Co. y. Bailway Co. 64 Ohio St. 550 [61 N. E. Bep. 1147]; Cincinnati, L. & A. Elec. By. Co. v. Lohe, 68 Ohio St. 101; Sec. 2780-17 Bev. Stat.; Massillon Bridge Co. v. Iron Co. 59 Ohio St. 179 [52 N. E. Bep. 192] ; Joyce, Electric Law Secs. 407, 408; Elliott, Boads & Streets. 698.
    The defendant company has the right to cross the tracks of the steam road, without compensation, the same as a pedestrian or owner of a private vehicle. Cincinnati & H. Elec. St. By. tío. v. Bailway Co. 12 Circ. Dec. 113 (21 B. 391); affirmed by the Supreme Court, Bailway Co. v. Bailway Co. 64 Ohio St. 550 [61 N. E. Bep. 1147].
    Notice by publication under Sec. 2502 Bev. Stat., or bid for the receipt of fares, is not required where the franchise granted is an extension of the route of an existing franchise. Sections 3437, 3439 Bev. Stat., not applicable; State v. Bailway Co. 10 Circ. Dec. 418 (19 B. 79).
    Sections 2501 to 2505 Bev. Stat. relate to .railways within corporate limits; Sees. 3437 to 3443 Bev. Stat. relate to railways both within and ■without corporate limits; Secs. 2501 and 2502 Bev. Stat. relate to original 'routes and not extensions, while Sec. 2505 Bev. Stat. relates to extensions, and is subject to the provisions of Sees. 3437 to 3443 Bev. Stat.
    The publication of notice, or the consent of the property owners is-not a constitutional requirement, but only one of legislative policy. Hamilton, G. & C. Trac. Co. v. Parish, 67 Ohio St. 181 [65 N. E. Bep-: 1011] ; Near v. Bailway Co. 4 Dec. 475 (29 Bull. 171).
    Statute part unconstitutional and part constitutional will be sustained in part. Exchange Bank v. Hines, 3 Ohio St. 1; Treasurer v. Bank, 47 Ohio St. 503' [25 N. E. Bep. 697]; State v. Baker, 55 Ohio St. 1 [44 N. E. Bep. 516] ; State v. Brewster, 39 Ohio St. 653; State v. Harvey, 4 Circ. Dec. 227 (8 B. 599); Keokuk Northern Line Packet Co. v. Keokuk "(City), 95 U. S. 80 [24 L.‘Ed. 377]; Vial v. Penniman, 103 U. S. 459 [26 L. Ed. 602]; Town of Unity v. Burrage, 103 U.' S. 447 [26 L. Ed. 405]; Beagan v. Loan & Trust Co. 154 U. S. 362 [14 Sup. Ct. Bep.'1047; 38 L. Ed. 1014] ; Field v. Clark, 143 U. S. 649 [12 Sup. Ct. Bep. 495; 36 L. Ed. 295] ; Sturges v. Crowninshield, 17 U. S. (4 Wheat.) 122 [4 L. Ed. 529],

      Statutes must be interpreted, if possible, so as to make it consistent with, the constitution and. paramount law. Presser v. People, 116 U. S. 252 [6 Sup. Ct. Rep. 580; 29 L. Ed. 615]; Parsons y. Bedford, 28 U. S. (3 Pet.) 433 [7 L. Ed. 732],
    Presumption always in favor of constitutionality. Endlieb, Constr. of Stat. Secs. 178, 179 and 538; 6 Am. & Eng. Enc. Law (2 ed.) 1088; Cooley, Const. Lim. (6 ed.) 211.
    Deference to usage and especially where harm results from disturbance; Endlieh, Constr: of Stat Sec. 527.
    A court of equity has no jurisdiction to determine whether proposed grade crossing is a public menace; this question is vested exclusively in the city council. Section 2640 Rev. Stat.; Wabash Ry. Co. v. Defiance, 52 Ohio St. 262 [40 N. E. Rep. 89] ; affirmed, Wabash Ry. Co. v. Defiance, 10 O. F. D. 480 [167 U. S. 88; 17 Sup. Ct. Rep. 748; 42 L. Ed. 87].
    Not within the jurisdiction of any court, in the absence of fraud in the council, to review its decision. Sims v. Railway Co. 37 Ohio St. 556; Cincinnati v. Railway Co. 1 Dec. 591 (31 Bull. 308).
   MOONEY, J.

It will be convenient to consider the asserted grounds for an injunction in this case in the order heretofore stated.

I. “ More than fifty years ” before the commencement of this action, general power was conferred upon cities and villages to lay off and establish streets. 50 O. L. 223. This power has ever since existed. Land held by a railroad corporation, whether acquired by it by purchase or appropriation, which is not employed in nor needed for the proper exercise of its corporate franchises, can be taken for a public use, the same as the lands of any other owner. Railway Co. v. Belle Centre (Vil.), 48 Ohio St. 273 [27 N. E. Rep. 464].

Under the general authority to establish streets, a city or village may establish streets across lands which are subject to the franchise of a railroad corporation, provided the second use for which the land is so taken is, in the circumstances of the particular case, reasonably consistent with the former use. The land may, in such case, be subjected to the additional use, but the former use may not thereby be wholly defeated. Little Miami Ry. Co. v. Dayton, 23 Ohio St. 510.

By the extension of the street, the land is subjected to an additional use, but the former use is not superseded; and, in so far as it is interfered with, the question becomes one simply of compensation.” Little Miami Ry. Co. v. Dayton, supra, p. 519.

Columbus avenue has been established as a public street across lands owned by plaintiff, some of which land then was and some was not used or needed for railroad purposes. Plaintiff’s title in the land not so used or needed was absolutely extinguished by establishing the street. In the proceeding to establish the street, the consistency of the use of the lands occupied and used by the tracks for both railroad and ordinary street purposes was determined, and any interference with the railroad company’s use of the land for railroad purposes, by reason of the use of the land for ■ordinary street purposes being “ simply a question of compensation ” must be deemed to have been adjusted in that proceeding. This compensation, while including all use of the land for street purposes, would not ■cover new servitudes upon the land taken. The construction of a line of street railway along a street is an ordinary street use and is not a new servitude entitling the owner of abutting property, or of the fee of the street subject to the street easement, to further compensation.

“ So far as the carrying of passengers by this mode is concerned, it differs in nothing from the exercise of the common right of carrying them by coaches and omnibuses; and everything needing a grant, or the further authority of law, is the right to place and maintain in the highway, the necessary conveniences for this new description of carriages.” Cincinnati & S. G. Ave St. Ry. Co. v. Cumminsville, 14 Ohio St. 523, 545.

Moreover, plaintiff expressly states in its petition that its asserted title and ownership is subject to the “right and use of persons, animals and vehicles traveling upon or passing along the said avenue as a public street and highway.” A street car, propelled by electricity is, within this admission, a vehicle. Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276]. See generally as a full and correct statement of the law of this branch of the case, Cincinnati & H. Elec. St. Ry. Co. v. Railway Co. 12 Circ. Dec. 113 (21 R. 391); affirmed, no report, Railway Co. v. Railway Co. 64 Ohio St. 550 [61 N. E. Rep. 1147]. Plaintiff, then, has no such ownership of, or title to, the lands in question as requires defendant to proceed by appropriation, or otherwise acquire the right from plaintiff as a condition precedent to the construction of the proposed line of street railway.

II. The ordinance of October 21, 1902, depends for its validity upon Sec. 2505 Rev. Stat. This section refers to Secs. 3437 to 3443, Rev. Stat., inclusive, and requires proceedings thereunder. Sections -3438 and 3439 Rev. Stat. were last amended and in the present form enacted April 18, 1883 (80 O. E- 173). It is asserted by plaintiff that the act is unconstitutionl and void, and the ordinance in question is therefore invalid. By Sec. 26, Art. 2, of the constitution “ all laws of a general nature are required to have a uniform operation throughout the state.”

“Whenever a law of a general nature having-a uniform operation throughout the state,- can be made fully to cover and provide for any given subject matter, the legislation, as to such subject matter, must be by general laws, and local or special- laws cannot be constitutionally enacted as to such subject matter.” State v. Spellmire, 67 Ohio St. 77 [65 N. E. Rep. 619].

The grant of street railway franchises by municipalities or other public agencies, and the establishment of street railway routes by them, can be covered and provided for by general laws. The possibility is demonstrated by the fact that it has been done. It is provided in the act of April 18, 1883, “ that this act shall not apply to any county containing a city of the. second grade of the second class.” This proviso excepts Montgomery .county from the operation of the amended sections. If the proviso is to be taken as an integral part pf the act, there can be, we think, no doubt that,this enactment of a general nature is not valid law, because it does not have uniform operation throughout the state. Now the proviso equally with the other terms of the act is expressive of the legislative will. On the one hand the legislature wills and declares that the existing statutes shall be altered and amended so far as eighty-seven counties of the state are concerned, and on the other hand it wills and declares that the existing statutes shall remain in force unaltered and unamended so far as Montgomery county is concerned. The act voted upon was intended no less to accomplish one purpose than the other, and both purposes were intended to be carried into effect by the act. The constitution prevents not only the accomplishment of the one purpose, but also of the other and of both together.

In. State v. Buckley, 60 Ohio St. 273, it was held:

“1. When an act of the general assembly, required to have uniform operation throughout the state, expressly excepts from its operation one or more cities or counties, such act by reason of such exception is unconstitutional and void.
“ 2. • Such an exception cannot be held invalid and thereby extend the act over the excepted territory, because in such case the general assembly never enacted the statute in such territory, and the court has no power to enact it therein.”

What is true of Sec. 1 of the act referred to is equally true of Sec. 2 thereof — the repealing section. The legislature never declared its intention to repeal said-sections as to the whole state, but only as to certain counties ('less than all), leaving the former statutes in force in one county.

To permit such partial repeal would indirectly accomplish the very purpose which the constitutional provisions -were designated" absolutely to prevent. The repealing section is therefore void, also. The general rule that “ where a repeal of prior laws is inserted in an act in order to secure the unobstructed operation of such act and it is held unconstitutional, the incidental provision of prior laws will fall with it,” also sustains the invalidity of the repealing section. State v. Heffner, 59 Ohio St. 368 [52 N. E. Rep. 785] ; State v. Buckley, 60 Ohio St. 273 [54 N. E. Rep. 272]; State v. Hall, 67 Ohio St. 303 [65 N. E. Rep. 1019].

The act of April 18, 1883 (80 O. L. 173), is void, and because oí its invalidity Secs. 3438 and 3439, as they appear in the Revised Statutes of 1880, are unamended and are still in force. Section 2502 Rev. Stat., as sought to be amended by said act, was subsequently amended to be free from any constitutional infirmity. The subsequent amendment of the section (88 O. E. 389) is invalid for reasons heretofore stated. This state of the law leads to the next ground for relief urged by plaintiff.

III. Was notice as provided by Sec. 2502 Rev. Stat. necessary as a condition precedent to the passage of the ordinance of October 21, 1902? No such notice was given, and since plaintiff will suffer some inconvenience from the construction as -well as operation of the street railway, plaintiff is a proper party and in this action has the right to raise the question.

To answer the question will require a brief review of the street railway legislation of this state. Prior to March 3, 1860, all street railways in this state were constructed either by individuals or by corporations organized under special legislative charters passed before the present constitution was adopted, or by corporations organized under the general corporation act passed May 1, 1852. No express power or authority was conferred upon municipalities to grant the use of the streets to any such company or individual prior to March 3, I860, and the right of such use and occupancy if derived from municipal authority, must have been granted under the general authority to control the streets.. .On the date last mentioned there was -passed “ An act relating to cities of the first class having a population exceeding 80,000 inhabitants.” • 57 O. . E- 16. In Secs. 15 and 16 of this act, power to grant the use of the streets for street railway purposes and to prescribe by-ordinance the terms and conditions of such occupancy is given with the requirement of “ consents,” notice of applications and bids, and it is prudently provided that “ all reductions of the rates of fare shall inure to the benefit of the passengers carried.”

April 10, 1861 (58 O. E. 66),< an act entitled “An act to provide for and regulate street railroad companies ” was passed. Section 5 of this act requires the consent of the council or corporate authorities of the city, town or village wherein such railroad is to be constructed before such road is constructed or commenced, and said company may agree as to terms and conditions upon which the streets are used and the road operated. Cities of 80,000 population are excepted from the operation of the act. Section 7 provides that street railways may be located and constructed in part within, and in part without, the limits of any city, town or village, and any railroad constructed within the limits of any city,, town or village, may be extended without the limits thereof. Provided* that before so extended, the company, or public officer or public authorities owning or having charge of any road, street, avenue, public way or grounds without such limits shall agree upon the terms and conditions, upon which the same shall be occupied or used.

March 27, 1866 (63 O. L,. 55), an act supplementary to the foregoing was passed by Sec. 6 of which Secs. 15 and-16 of the act of 1860 and Sec. 5 of the act of 1861 were expressly repealed. This act relates, only to the construction of street railways within municipalities. Section 1 requires consent of the council. Section 2 requires the council to prescribe terms and conditions of use, public notice of intent to make the grant, and that no such grant shall be made except to the individual, company or corporation that will agree to carry at the lowest rates of fare. Section 3 requires the consents, in writing, of a majority of the owners of abutting lots, to be filed with the council and the council shall so declare, by resolution or ordinance, before the road is constructed, unless, by Sec. 4, by proper proceedings, the damages of the persons not consenting and waiving damages, are determined, and the rights of such persons acquired in and by appropriation proceedings. Section 5 regulates the procedure.

April 10, 1867 (64 O. L. 122), Sec. 7 of the act of April 10, 1861, was amended and the original section repealed. The extent of the amendment is not here material.

April 28, 1868 (65 O. L. 112), Sec. 3 of the act of March 27, 1866, was amended so as to require the filing of written consents by a majority in interest, as a condition to granting the franchise.

May 7, 1869 (66 O. L,. 149), the municipal .code was passed. Sections 411 to 414 of this code regulate street railroads. These sections, in order, provide that upon written application by a company, the council may grant permission to construct such railway and prescribe terms and conditions upon which, and the manner in which the same shall be operated; that no such ordinance shall be passed until notice of the application has been given, and no such grant shall be given except to the company, etc., that will agree to carry at.lowest rates' of fare. The remaining sections relate to the grade of the streets and paving between the rails. Sections 1 and 2 of the.act of March 27, 1866, were repealed by this code. On the same day that the municipal code was passed,' and Secs. 1 and 2 of said act repealed, there was passed another act (66 O. T. 140) as follows:

“ It shall be lawful for the council of any city or incorporated village to grant permission by ordinance to any person or company, owning or having the right to construct any street railroad, to extend their tracks, subject to the provisions of Secs. 4 and 5 of said act passed March 27, 1866, on any street or streets where the said council shall deem such extension beneficial to the public. And when any such extension shall he made, the charge for carrying passengers on any street railroad-so extended, and its connections made with any other road or roads, by consolidation under existing laws, shall not be increased by reason of such extension or consolidation; said sum shall include the government tax.”

February 19,1870 (67 O. L. 10), the act of April 10,1867, amending Sec. 7 of the act of April 10, 1861, was amended in part as follows:

Street or horse railroads may be located and constructed, part within, part without, or wholly without the limits of any city, town or village; and any such road heretofore or'hereafter constructed within, or part within, or wholly without the limits of any city, town or village, * * * may be so constructed or extended along or upon the national road, or any other road, street, avenue, turnpike, public way or ground, in accordance with the provisions of an act entitled ‘ an act to provide for and regulate street railroad companies,’ passed April 10, 1861; provided, that, before such construction or extension, the company, public officer or public authorities, owning or having charge of any such road, * * * shall agree with such railroad company upon the manner, terms and conditions upon which the same shall be occupied or used,” and in case the national road is used the board of public works of .the state shall so agree. In this state of the law the Revised Statutes were passed as a single act Sections 411, 412, 413 and 414 of the municipal code with some amendments became Secs. 2501, 2502, 2503 and 2504 Revi' Stat.

The act, 65 O. L. 112, was amended to read as follows:

“No such grant shall be made until there is produced to council, or the commissioners, as the case may be, the written consents of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way along which it is proposed to construct such railway or extension thereof; and the provision of Secs. 2501 and 2503 to 2505 Rev. Stat., inclusive, so far as they are applicable, shall be observed in all respects, whether the railway proposed is an extension of an old or the granting of a new route.” This amendment became Sec. 3439 Rev. Stat.

March 9, 1880, Sec. 2505 Rev. Stat. was amended so as to make the extension therein provided for, subject to Secs. 3437 to 3443 Rev. Stat., inclusive, instead of subject to Secs. 4 and 5 of the act of March 27, 1866, as theretofore therein provided. It will be noted that now Sec. 2505 Rev. Stat. makes extensions within municipalities subject to Sec. 3439 Rev. Stat., et seq., and Sec. 3439 Rev. Stat. is subject to Sec. 2505 Rev. Stat. et seq., whenver the same ‘shall be applicable.

It is very evident that Secs. 2501 to 2505 Rev. Stat., inclusive, standing alone, relate to street railway lines located and extended wholly within municipalities, while Sec. 3437 Rev. Stat. et seq., relate to all lines and, extensions wherever located. In case of conflict as to city lines or extensions, the more general provisions of Sec. 3437 Rev. Stat. et seq. must yield to the more specific provisions of Secs. 2501 Rev. Stat. et seq. Section 2505 Rev. Stat. relates expressly and exclusively to extensions within a city of original city lines. It is evident as this section was first enacted and as the same was first carried into the Revised Statutes of 1880, no notice was required to be given of an application for an extension. The act being made expressly subject to Secs. 4 and 5 of the act of May 27, 1866, it will not be presumed that it was subject to other sections of the same act not specified. Nor will the fact that it was placed by the codifiers after Secs. 2501 to 2504 Rev. Stat., have the effect to alter its construction or meaning. Allen v. Russell, 39 Ohio St. 336, 337; State v. Darke Co. (Aud.) 43 Ohio St. 311, 315 [1 N. E. Rep. 209]; State v. Stockley, 45 Ohio St. 304, 308, 309 [13 N. E. Rep. 279].

When Sec. 2505 Rev. Stat. was last amended, if it was desired to make the same subject to Sec. 2502 Rev. Stat. as to notice, the arrangement of the sections would certainly have suggested a direct reference to Sec. 2502 Rev. Stat. in terms. Instead of this, the operation of the section is expressly made subject as stated to Sec. 3439 Rev. Stat. et seq., and Sfec. 3439 Rev. Stat. requires that the provisions of Sec. 2502, as-well as Sec. 2505 Rev. Stat., shall be observed in extensions or new routes granted.

Since Sec. 3439 Rev. Stat refers to new routes, and Secs. 2501 to 2504 Rev. Stat. relate to new routes, and the same section (Sec. 3439 Rev. Stat.) refers to extensions, and -Sec.- 2505 Rev. Stat. relates to extensions, it would seem that the fair rendering of Sec. 3439 Rev. Stat.* aipon the point now under consideration, is the same as though the concluding clause were, “ and the provisions of Secs. 2501 to 2504 Rev. Stat., inclusive, in the granting of a new route, and Sec. 2505 in granting an extension, so far as said sections are applicable shall be observed in all respects.” The history of the legislation, as well as the language of Sec. 3438 Rev. Stat., shows that an extension from without into or through á municipality is, as to the part of the line within the municipality, a new route. At the very most it cannot be contended that Sec. 3439 Rv. Stat. requires the observance of Sec. 2502 Rev. Stat. et seq. only when the same are applicable. They are not applicable in all cases covered by Sec. 3439 Rev. Stat., to wit, a line constructed wholly without a municipality or an extension of such line not into or through a municipality. In such cases municipal officers would have no duty in the premises and the sections only enjoin duties upon such officers. In still other cases of extensions the provisions of Sec. 2502 Rev. Stat. should be held to apply only if the case is within the reason of each section. Section 2505 Rev. Stat. relates only to extensions and these may be granted. An extension •can only be predicated of an existing line or a present right to construct a line — a person to apply for an extension must be the owner of a line or have a present right to construct a line. The statute does not make the right to grant an extension depend upon the fact that there are two or more owners of existing lines or of two or more present rights to construct lines in the municipality.

The notice required by Sec. 2502 Rev. Stat. is a means to secure reduced fares by competitive'bidding. To bidding there must be at least two qualified bidders. In the case at bar there is neither pleading or proof that when the ordinance of October 21,1902, was passed, there was any person, persons or corporation other than defendant that could make application for the Columbus avenue extension or could receive a grant of it as an extension. Again, if there were two or more such corporations or persons, their lines existing or proposed would not be identical.

By Sec. 2505 Rev. Stat. a trip for a single fare over the original line and over the extension is contemplated. If notice were given and bids received each company would bid for a trip over its own line, plus the extension proposed. Since each original line would be different, the bidders, would submit their proposal not with reference. to the same but a different service. In such case it would be impossible to determine whose bid was the lowest” But Sec. 2505 Rev. Stat. does not omit reference to fare, nor omit a means by which the charge is to be fixed. It has an express provision upon the subject.

“ The charge for carrying passengers on any street railway so extended * * * shall not be increased by reason of such extension.”

In the absence of all regulation such company could exact a reasonable fare. The function of legislation is to limit. When regulation is attempted, and a specified charge prohibited, or a limit fixed, any charge within the limit or not prohibited may be exacted. Hence, the provision quoted, that the rate of fare fixed for the original line, shall not be increased upon the line as extended, is by construction tantamount to a provision that the former charge need not be reduced by reason of the extension.

Terms implied from the express terms of a statute are as much apart of the statute as the express terms themselves. By the terms express and implied of Sec. 2505 Rev. Stat., the rate of fare is fixed for the extended line. And for this as well as the other reasons heretofore stated, it results that to give notice of the application for an extension in the case at bar, would be a vain thing. The observance of Sec. 2502 Rev. Stat. as to notice is then not required by Sec. 3439 Rev. Stat. in the case at bar, because it is not in any degree applicable. If the extension were from an original line wholly without the municipality, into or through the municipality, such extension would be as to such municipality, an original line or new route, and in such case Sec. 2502 Rev. Stat. and the other sections would apply. But that .is not this case. 91 O. L. 285, Sec. 6.

IV. As to the right to construct branches: Defendant’s charter constitutes it an interurban electric railway.

“An interurban electric railroad is classed as a street railroad by the statutes of this state.” Cincinnati, L. & A. Elec. St. Ry. Co. v. Lohe, 68 Ohio St. 101.
“ Suburban and interurban railroads, * * * having been classified by the legislature of the state of Ohio with street railroads, are governed by the laws relating to street railroads.” Cincinnati & H. Elec. St. Ry. Co. v. Railway Co. 12 Circ. Dec. 113 (21 R. 391).

A street railroad company may construct an extension of its -lines even beyond the termini specified in its charter. Sims v. Railway Co. 37 Ohio St. 556. Hence defendant, after securing the right to do so, as required by law, from the proper local authorities, can construct extensions, and there may very well be, and most generally are, branches from its main line.

V. The danger of these proposed grade crossings as a ground of equitable relief.

This ground for an injunction as set out in plaintiff’s pleadings involved two questions; one of fact as to the danger of the proposed crossings, the other of law as to the effect of the dangerous nature of the-crossings, if they or either of them be in fact dangerous.

We find, as matter of fact, that there is nothing in the location of' these crossings, or either of them, or in the grades at which the tracks-of plaintiff are approached by the said street, or in the proposed construction or manner of operation of defendant’s street railroad, that will' render either of the proposed crossings in any degree more dangerous-than a grade crossing of a street failroad with a steam railroad at a convenient grade in a city must ordinarily and necessarily be. On the other' hand, by reason of the proximity of plaintiff’s depots and the usual stopping place of its trains, the use of its railroad yards in the near vicinity; the existence and operation of plaintiff’s block system a.nd the resulting present control which plaintiff will and must have over the movement of its trains at these points — all these render the proposed crossings much less dangerous than such grade crossings ordinarily are.

If the fact were otherwise, the result in law in this state would not be different.

“ In the absence of statutes regulating the place and manner of crossing and when the rights of the public or one or other of the intersecting (steam railroad) lines will be materially injured a court of equity may enjoin a grade crossing.”

This rule does not apply tov street crossings with steam railroads, and if it does not apply to streets in general, it does not apply to the use in all ordinary ways of such street, and as we have seen, the use of the streets for street railway purposes is an ordinary use. In Railway Co. v. Defiance, 52 Ohio St. 262 [40 N. E. Rep. 89], it was held that “ the comparative dangers in the use of grade and overhead crossings, and the relative public benefits and private disadvantages that may result from a contemplated improvement of the streets, are matters for the consideration of the members of the council, who are the sole judges of the propriety, as well as the necessity of the improvement; and their decision, when not transcending their powers, nor induced by fraud, is not subject to judicial revision;” and in the same case, on error to the Supreme Court of this state, it was held by the United States Supreme Court in Wabash Ry. Co. v. Defiance, 10 O. F. D. 480 [167 U. S. 88; 17 Sup. Ct. Rep. 748; 42 L. Ed. 87];

“ It is within the discretion of the common council to determine whether the public exigencies require that the grade of a street be sea changed as to cross a railroad at a level;” and in the opinion by Mr. Justice Brown on page 491 it is said:
“ While the modern policy of railway engineering usually tends to the abolition of grade crossings, there is no hard and fast rule upon the subject, and it may well.be that the exigencies of a certain street or locality may demand that travel shall descend to the level of the railway rather than ascend to a bridge built over the track. But however this may be, we are not at liberty to inquire whether the discretion vested in the common council in determining this question was .wisely exercised; * * * or whether the crossing so improved was burdensome to the railroad company; or made unsafe to persons crossing the track. These were considerations which might properly be urged upon the common council as arguments against the proposed change; but it is beyond the province of the courts either to praise the wisdom or criticise the unwisdom of such action.”

The case before that court was one in which the council of the city of Defiance had resolved to abolish an overhead crossing and establish a grade crossing in its stead. Yet the court said “ the question before us as simply whether the council had the power to make the change, and of this we have no doubt.” The cases cited announce and determine the questions arising upon this last branch of the case at bar as far as the law of. Ohio is concerned; and whether the railroad company complainant be one lying wholly within this state or extends into other states and whether engaged in state or in interstate commerce.

The suggestion that Sandusky avenue can be used as a highway upon which a safer and better crossing can be constructed is met by the fact that defendant has no present right to use that street, and since to acquire it defendant must first obtain the necessary consents of a majority in feet front of the owners of abutting lots (consents which such lotown-ers may grant or refuse as they freely choose), and after these consents are obtained the right is further dependent upon the voluntary action of the council, it cannot be assumed that defendant will ever acquire any right to use that street,

We are of opinion that the equities of the case are with defendant. , The temporary injunction is dissolved and plaintiff’s petition is dismissed. Costs to plaintiff. Judgment for costs and execution awarded and the cause is remanded to the court of common pleas for execution.

Day and Norris, JJ„ concur.