text:
    TITLE TO VACATED PORTION OF STREET.
    [Circuit Court of Lucas County.]
    Luella Price et al v. The City of Toledo et al.
    Decided, October 31, 1903.

      Street — Title to Portion Yaeated Reverts to Present Adjoining Owners— Assessment for Street Improvement — Injunction Against Collection of, Because in Excess of Special Benefits — What Must Be Shown— Province of the Court in Reviewing Assessment — Improvement Begun Under a Statute Held Constitutional — And afterward Held Unconstitutional — Yalidity of Assessment Not Affected Thereby.

    1. Where a portion of a street, consisting of a narrow strip off one side of such street is vacated by a municipality and no longer used as a part of the street, the title to such strip goes to the owners of the lots adjoining it and theretofore abutting upon the street and does not revert to the original owners, and such lots after such vacation are still subject and liable to an assessment as abutting property for improving such street and it is immaterial that said strip was a part originally of lots other than those so held liable to assessment.
    2. Where an assessment, according to benefits for a street improvement has been in all respects duly and regularly made and all the proceedings are complete, and no complaint is made by property owners until an action is commenced to enjoin the collection of such assessment on the ground that it exceeds the benefits the court will not grant such relief, unless the action of the council or other municipal authorities has been fraudulent or tantamount to fraud or the assessment is so excessive as to clearly and unquestionably exceed the special benefits to said property.
    3. In such cases the court does not sit as a court of appeal to review the action of the municipal authorities and make a new assessment, upon the evidence, according to its judgment.
    4. Statutes having been held constitutional by the Supreme Court, proceedings under them are not affected by subsequent decisions of the court overruling the former decisions, and holding such statutes unconstitutional; but they are to be regarded as constitutional, so far as such proceedings are concerned, and .assessments made under them prior to the later decisions are valid.
    Hull, J.; Haynes, J., and Parker, J., concur.
   This action was brought by Luelia Price and twenty others to enjoin the city of Toledo and its officials from levying and collecting a certain assessment made for a pavement laid on Junction avenue in the city of Toledo. The assessment was made on the rule of benefits, not by the foot front. It is claimed that there were some irregularities in the proceedings, but it is complained chiefly that the assessment was in excess of the benefits and that, therefore, its collection should be enjoined. It is claimed that the benefits were very much below the amount of the assessments. The street, Junction avenue, is in the westerly part of the city and runs through what is spoken of as the “Polish Settlement,” most of the people living in that vicinity being Polanders and owning small lots, worth from $200 up to $300 or $400, and, in some cases, a little beyond that, without the buildings, and it is urged that this assessment is very oppressive. It is claimed that notices were not given to some of the plaintiffs, as required by Section 2204, Rev. Stat., of the resolution passed by the city council declaring the necessity of this improvement. Mr. Taylor claims that there was no notice given to him. We find, however, that he was at the time living in a hotel, which was his home, and the notice was given to the clerk of the hotel, pursuant to his directions, he having directed the clerk to bring such notices to his room, and, after a time, directed that the notices should be left at the office of the Detwiler Company, or taken to that office. The officer whose duty it was to leave the notices testifies to leaving them with the hotel clerk and we are of the opinion that the notice was_ given in accordance with the statute. There were objections by some of the other plaintiffs that they were not served with notice, but their testimony is indefinite; some say they can not remember whether they received notice or not, but in the case of each one Mr. Yoight testifies positively that he either served him personally or left the notices at his place of residence, or where he had been directed to leave them, and we find and hold that notices were served upon all of these parties as required by law, and, therefore, that the city had jurisdiction to proceed. Under a recent decision, 67 O. S., page 264 (Joyce v. Barron, Treasurer), it was held by the Supreme Court that failure to give this notice is fatal; that no assessment can be made without it; that it does not simply leave open the claim of the party for damages, bnt that the notice is a prerequisite to the city obtaining jurisdiction over the party and his property. We hold in this case, however, that notice was in fact given.

Another objection to this assessment, as to five of the lots, is, that they do not abut upon the street improved. They did at one time abut upon the street, the property being appropriated for the street by the city, but, some time afterwards, a portion —a narrow, wedge-shaped strip along the side of the street— was vacated so as to straighten the lines of the street, this strip being eight or ten feet wide at one end and running down to a point at the other end, and lying in front of five of these lots, and it is urged that they can not be assessed because they do not now abut upon this street. We hold, however, that this can not be maintained. This strip of land was vacated by the city and no longer held for street purposes. It belonged at the time it was taken by the city to lots other than those in question in this case and lying in front of them; but, upon the vacation of this strip the title reverted, not to the original owners, but to the owners of the lots that did abut and bound upon the street before the vacation. It has been held in several cases that the title in such case reverts to the owners of the lots that did abut immediately upon the street before such strip was vacated. This question is discussed very fully in a well considered opinion by Judge Shearer in the Sixth Circuit Court Reports, 142 (Stevens v. Shannon). The first paragraph of the syllabus is:

“The vacation of the streets and alleys of a duly established addition to a municipal corporation extinguishes the interest of the public therein; and the title to such streets and alleys vests in the owners of the abutting lots.”

This case was approved by the Supreme Court in Kerr v. Commissioners and in Stevens et al v. Taylor, Excr., et al, 51 O. S., 593; 64 O. S., 264, is also in point on this question. There is no question but that the title to this property is in these lot owners, and the effect of it is that this adds to their lots — they have that much more property — and it brings them to the street; it is immaterial that this strip still goes under the numbers of the lots that it formerly belonged to, the truth and fact is that it has become a part of the lots of these owners adjoining it, and in the improvement of the street these lots are to be regarded as bounding and abutting upon the street. They do in fact abut upon the street and have all the advantages and benefits of it and there would be neither justice nor equity in holding that they can not be assessed for the improvement of the street, and we hold that they may be.

We come now to the question whether this assessment was so excessive that the court can interfere in behalf of these plaintiffs. It is claimed that it is largely in excess of benefits. This assessment was made under Sections 2271 and 2272 of the Revised Statutes, which are special acts applying only to the city of Toledo, allowing an assessment of twenty-five per cent, upon the value of the property after the improvement, but subject to the general rule that the assessment shall not exceed the benefit. There is a provision in Section 2272, however, that if three-fourths of the owners of the property upon a street petition for an improvement the owner signing the petition may be assessed in any amount — to the full value of his property, or even twice its value, but probably the courts would hold that it could not be assessed for more than the value of a man’s property, for that would perhaps be confiscation. But in this case it is claimed by the city that the assessment did not exceed twenty-five per cent, of the value of the property after the improvement was made; and, further, that the assessment does not exceed the benefits. That was a question of fact contested on the trial before us and witnesses were called.

There are several decisions in this state on this question and the powers of a municipality in these matters and the power of the courts and the limitations upon municipal power in making assessments. The fundamental principle as stated by many of the decisions, is that the right to assess rests upon the "basis of benefits to the property assessed; that the right is given to a municipality by reason of the fact that the property is specially benefited by the improvement; this is the “fundamental principle.” If it were not for that — if it were not thus benefited — it would be taking property without due process of law and making a man pay for an improvement by the municipality, which was of no special benefit to him, which would be the taking of property for public uses without compensation, and all these statutes and cases recognize this general principle.

As to just what the powers of the courts are in these matters, no definite rule has been laid down, perhaps, but the general question has been discussed in several eases. There are three of them in the 61st O. S. Reports. One is found on page 15 (Walsh v. Barron), where the Supreme Court say:

“The fundamental principle underlying an assessment made on property for the cost and expense of a local public improvement is, that the property is specially benefited by the improvement beyond the benefits common to the public and that a ratable assessment of the property to the extent of these benefits violates no constitutional right of the owner, and is just and proper. But it can in no case exceed the benefits without impairing the inviolability of private property.”

On page 27 of this volume (Birdseye v. Clyde), is a case in which it is said, in the first paragraph of the syllabus:

“It is the general policy of our legislation to restrain the power of local assessment by fixing a limit on the amount that may be levied beyond which municipal corporations may not go; and unless the contrary clearly appears, an intention to adhere to that policy in the enactment of particular statutes relating to local assessments will be presumed, and a construction given to them allowing the application of the general limitations.”

In the first case in the book (61 O. S., p. 1), the court say, in the syllabus:

“"Where, in a suit brought to enjoin the collection of a street assessment as invalid, and the taking of property without due process of law, it appears that the ordinance levying the assessment provided that the cost and expense of the improvement should be asssesed upon the abutting property by the foot front, and not otherwise, but it also appears' that an issue was made by the pleadings on the question whether or not the land so assessed was in fact benefited by the improvement to an amount in excess of the cost so assessed, which issue is found by the trial court against the plaintiff, and it is neither shown nor claimed that the cost and expense was not apportioned fairly between the property of plaintiff affected by the assessment, and that of others so affected, the collection of such assessment should not be enjoined simply because the proceedings of the council in enacting the ordinance and levying the assessment do not show affirmatively that the question of benefit to the land was taken into consideration in levying such assessment. ’ ’

All these cases recognize the principle that there is a limitation somewhere upon assessments — either an arbitrary limitation or a certain per cent, of the value, or that the assessment shall in no case exceed the benefits. In the statutes of the state applying to municipalities generally, for many years the limitation has been twenty-five per cent, of the taxable value of the property — the value at which it is listed for taxation. In the first statute passed in this state on this subject — the original municipality act — the limitation was fifty per cent, of the value of the property after the improvement. That was found to be too high and the statute was amended and the amount reduced to twenty-five per cent, of its taxable value. These two statutes applying to Toledo, as stated, limit the assessment to twenty-five per cent, of the value of the property after the improvement. These statutes are clearly unconstitutional, on the ground that they are special legislation and violate Section 26, Article II of the Constitution of the state. Whether that can be taken advantage of by the plaintiffs in'this case will be discussed further along.

We find that the proceedings in this case were regular. The notice was given to the property owners of the passage of a resolution declaring the necessity for this improvement; and after the assessment was made, the plat and other pfoper papers were filed with the clerk, as provided by statute, and notice was published for three weeks, as the law requires, for any who wished to make complaint of the assessment, and a committee of three freeholders was appointed, as the law requires, to sit as a board of equalization, all of which is provided for in Sections 2278 and 2279.

Section 2279 provides:

“If any person objects to the assessment, he shall file his objections, in writing, with the clerk, within two weeks after the expiration of the notice; and thereupon the council shall appoint three disinterested freeholders of the corporation to act as an equalizing board.”

No one of these plaintiffs took advantage of these provisions of the law enabling him to make complaint of the assessment if he so desired. They complained for the first time in this action, in which they ask for an injunction. The plaintiffs in the case called one witness who may be considered as an expert upon real estate values and the question of benefits, and he went over this property in his testimony, lot by lot. The defendant called two, who may be regarded as experts to some extent, having had considerable experience in matters of this kind. According to the testimony offered by the plaintiffs, the assessment on most, and perhaps all of the lots, exceeds the benefits to some extent. It goes beyond the benefit to this property according to the opinion of the expert called by the plaintiffs and according to the opinion of some of the lot owners. According to the testimony of the witnesses called by the city — two experts and one other, not so much of an expert — the benefits accruing to this property equal the assessment. These are the opinions of those witnesses. When we get into the matter of the benefits of an improvement, it is a matter of judgment or opinion — it is not a question of fact that can be positively determined. The judgment of one man differs from another.

We are of the opinion that we have no right as a court to interfere with an assessment and enjoin its collection on the ground that the benefits are not equal to the assessment unless the assessment is fraudulent or there is such a disparity as to be clearly wrong and unjust and tantamount to fraud on the part of the authorities. Where the assessment is so clearly and unquestionably excessive that there can be no material difference of opinion upon the question, we think that the court may grant relief. But where there is a mere conflict of evidence and where all the proceedings have been regular, where the notices have been given, where the proper officers have acted upon the matter and all legal steps taken and the party complains for the first time in a court of equity, in such a case, we are of the opinion that the court ought not to interfere. To hold that the court should do so would be to require a re-examination and review by the courts in almost every assessment in this city and in every city in the state. There is hardly an assessment made for a street improvement, for a sewer or for any other public improvement, where there are not some who are of the opinion that they are assessed too heavily — that the assessment is too high. But we do not sit as a court of appeal from the action of the council or the board of equalization, to hear the case anew and review it upon the evidence and then according to our opinion determine what would be a fair assessment. All these matters have been committed to the council and the duly authorized boards to determine, and they have as much authority within their jurisdiction as the courts themselves.

The general rule, we think, is laid down in the 34 O. S., p. 551 (Chamberlin v. Cleveland). The court say, in the 9th paragraph of the syllabus:

“Where the city council determines that the amount of the assessment does not exceed the value of the benefits specially conferred, its judgment in the premises, in the absence of fraud, is final and conclusive, unless modified by the council before final determination, as provided in Section 588; but when the municipal authorities, in levying special assessments do not undertake to determine the amount of the special benefits conferred, either in respect to the amount assessed, or in the apportionment of the burden, the assessment may be enjoined; and in an action for that purpose parol evidence may be introduced to show that the authorities did not act on the proper basis.”

We are unable to find, from the evidence- that the action of the council in this assessment was fraudulent, or the assessment so unjust and excessive as to be tantamount to fraud. The weight of the evidence, if we determined it by the number of witnesses, is perhaps on the side of the city. The assessment, it is true, seems high. These lots are not valuable — a forty-foot lot in that neighborhood being valued at about $400, on the average — and the owners of most of them, as is shown by the evidence, are poor people, and to put an assessment on such a lot — worth $400 — of $180 or $200, seems high and burdensome to people in that condition, and they feel that these lots were of as much value before this assessment .as they are now. But it is clear from the evidence and from common knowledge that such an improvement as this does add to the value of the property. The evidence shows that this territory was very low and marshy and the street covered by water — portions of it — a large part of the year, and almost impassable at times, and the paving of the street has very much improved it and added very much to the value of these lots, and while before it was almost impossible to sell a lot, as some of the witnesses testify, they can now be sold for a fair price. We are unable to find that the assessment is excessive, or that it goes beyond the limit in this special statute — twenty-five per cent, of the value after the improvement.

It is urged, however, that these two statutes applying only to the city of Toledo, are unconstitutional, and that as the assessment was made under them, it should be enjoined and the city sent back to a constitutional statute passed many years ago by which the limit is fixed at twenty-five per cent, on the taxable value of the property. These two Toledo statutes are clearly unconstitutional under the recent decisions of the Supreme Court. They are in violation of Section 26, Article II of the Constitution and would not sustain an assessment made at this time. An assessment made under these statutes now, would be held by the courts to be invalid. But at the time this assessment was made and these proceedings were had, these statutes, or similar statutes, had not been declared unconstitutional by the Supreme Court, but for more than forty years the Supreme Court had held such statutes valid and constitutional, in decision after decision reported in the volumes oí the Supreme Court Reports, and when these assessments were made by the city and this improvement determined upon the city stood upon the law as it then was found in the statutes and in the decisions of the Supreme Court, and the city had a right to do so. The decisions of the Supreme Court which had been made up to that time were a part of the law of the land just as much as the statutes themselves and when the Supreme Court declared a statute uneonstituional, that made it so for all purposes of property, contracts and vested rights and it remained constitutional and valid until the Supreme Court held that such statutes were unconstitutional. The rule upon this question is stated by the Supreme Court of this state in 61 O. S., 471 (Lewis v. Symmes). I read from page 486, which is a quotation from an opinion delivered by Chief Justice Waite in Douglas v. County of Pike, 101 U. S., 677:

“The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, making it prospective but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment.”

Our Supreme Court say, through Judge Shauck, delivering the opinion:

“This compendinus statement of the rule and its reasons meets the requirements of all the cases cited. Its purpose is to secure the full operation of the constitutional prohibition of laws impairing the obligation of contracts.”

This question has been discussed in a very recent decision of the Supreme Court, 68 O. S., 603, Shoemaker v. Cincinnati, decided June 23, 1903. The court say, in the first paragraph of the syllabus:

“An owner of land which has been assessed for the improvement of a street is not entitled to an injunction restraining the collection of such assessment where a statute in all material respects the same as the one under which the improvement was made and the assessment levied, and the bonds of the municipality to pay the cost issued, had theretofore been adjudged valid by the highest court of the state, simply because similar legislation was held in the same court long afterwards to be in violation of the Constitution.”

Judge Spear in delivering the opinion, says:

“So that the inquiry comes finally to this: Is the owner of property which has been assessed for the improvement of a street entitled to an injunction restraining the collection of such assessment where a statute in all material respects the same as the statute under which the improvement was made and the assessment levied and the bonds of the municipality to pay the costs issued, had been theretofore adjudged valid by the highest court of the state simply because similar legislation was held by the same court long afterwards to be in violation of the Constitution? We answer the question unhesitatingly in the negative.
“It is a principle of universal application that a cause of action once finally determined between parties by a competent tribunal can not afterward be litigated between the parties or their privies by a new proceeding. It is the principle of res judicata. It rests not only on the private rights of the parties but it is a principle of public policy having been characterized as a ‘fundamental consent of the organization of civil society.’ It is equally well settled as a general proposition, admitting, however, of exceptions, that courts will adhere to and follow decisions of the highest court of the jurisdiction where the same points come again in litigation; and the rule is of universal application where the law has become settled as a rule of property, by reason of such earlier decisions, and rights have become vested on the faith of them. This is the doctrine of stare decisis. The broad principle lying at the base of both of these rules is embraced in the translation of the term -res judicata, viz.: ‘ That the matter has been decided. ’ ’ ’

We hold that while these statutes are to-day unconstitutional under the recent decisions of the Supreme Court, that at the time these proceedings were had and this assessment was made, such statutes had been held to be constitutional and in this case they are to be considered as valid and constitutional enactments. As Judge Spear says further along in the opinion, it would be unjust to throw a large part of this assessment upon the city because such statutes at this late day have been held unconstitutional by the Supreme Court. The making of an improvement of this kind is in some respects in the nature of a contract between the city and the lot owners. The property owners have their obligations to perform in reference to the contract and their rights, and the city has its rights and duties. The transaction is mutual. The parties entered into it and contracted in the light of the law as it then was and their rights and duties are based upon the statutes and decisions as they then existed, and. they can not have relief now on the ground that these statutes have, since this assessment was made, been declared unconstitutional by the Supreme Court. Under the new municipal code the limitation for such assessments is fixed absolutely at thirty-three and one-third per cent, of the taxable value of the property, beyond which an assessment can not go, and it is certain that assessment statutes should always have some limitation in them so that when property owners ask to have an improvement of this kind made they will know what the limit is.

C. B. Hadden, for plaintiffs.

W. G. Denman, City Solicitor, and Charles K. Friedman, Assistant City Solicitor, for defendants.

We are of the opinion that the prayer of the petition for an injunction should be denied, for the reasons stated, and the petition dismissed, and this will be the decree.


source: Caselaw Access Project

license: Public Domain

text:
    INSURANCE OF RAILROAD FREIGHT BRAKEMAN.
    [Circuit Court of Lorain County.]
    Bell H. Snow v. Modern Woodmen of America.
    Decided, October 12, 1902.

      Insurance — Occupation of “Railroad Freight Bralceman” Excluded— Holder of Policy Killed While Employed-as a District Yard Brakeman — Meaning of the Excluded Occupation Determined from the Hazard — Motion by Both Parties to Direct Verdict — Gives the Case to the Court for Determination.

    1. Where it is provided in a policy of life insurance that the policy shall be void should the insured be killed while employed as a “railroad freight brakeman,” this provision is not rendered inoperative by reason of the fact that his employment was what was known as a “district yard brakeman,” if it appears that the hazard connected with the employment remains substantially the same.
    2. Error does not lie to the determination of a case by the court, where at the conclusion of the evidence each party moved that the jury be instructed to return a verdict in his favor.
    Caldwell, J. (orally); Hale, J., and Marvin, J., concur.
   The son of Bell EL Archer Snow, on October 16, 1899, was engaged upon the electric railway, and he then made application for membership in the Modern Woodmen of America, which is a mutual benefit society.

He entered service upon a steam railroad and lost his life. Bell Snow brings this action to recover on the policy in which she was the beneficiary. The action was tried below and a judgment rendered for the defendant, and a petition in error is prosecuted in this court to reverse that judgment.

The question in this ease is wholly one of fact. When the action was commenced and the answer first filed and also an amended answer, it was claimed on behalf of the plaintiff below, Bell Snow, that the deceased was engaged in the work on the railroad as a railroad freight brakeman; but after the amended answer was filed and a reply filed to the amended answer, it was then claimed that he was what is known as a district yard brakeman, and that he was not a railroad freight brakeman. And the contention in the case in the evidence is, whether there is such a thing as a district yard brakeman, and whether there is such a thing as a railroad switchman; whether he acted in the capacity of a district yard brakeman or a railroad freight brakeman and whether he was acting as a switchman also. And the way that contention arose was this: There was a provision in the application or policy, that if he was killed while acting in the capacity of a railroad freight brakeman or railroad switchman his policy should become void, and if he was acting in that capacity then this policy is void; if he was not, but acted in some other capacity, then if he is killed the insurance would be. good, even if he did act in that capacity, and the plaintiff ought to recover.

It is not necessary to discuss this evidence, but there is considerable evidence to show that among th.e men there is what is known as a district yard brakeman, and that his duties or the place in which he works at least is different from that of a railroad freight brakeman, but we think the evidence shows that his duties are largely the same; notwithstanding he is called by the witnesses a district yard brakeman, yet he is really a railroad freight brakeman; he was a brakeman on freight cars exclusively, except as they might in the yards want to switch out passenger ears. He traveled from one point to another, but did not run over the whole line as a rule, and yet I notice these witnesses are wonderfully puzzled when the question was asked them, “Suppose he should go to Massillon or at times to Uhrichsville 1 The district in which he was working and in which he generally worked was that of Elyria and Grafton.

“Now what if he went to Massillon, what would he be?” I notice the witnesses were puzzled and confused to know whether he was then a railroad freight brakeman or still a district yard brakeman. Now under this evidence, it is necessary to see what the parties were trying to get at when this contract was made. The parties had in their minds no such fine distinction as is drawn by some of these witnesses. The company was saying, we will not insure you if you are engaged in a certain line of work, because of its danger, it makes the hazard too great, we will not undertake it, and hence they said to the party, if you are engaged as a railroad freight brakeman or railroad switch-man we will not insure you, and after you are insured if you become engaged in those avocations, then your policy shall be void. Now he assented to that. What did they understand, what were they trying to get at? They were trying to get at this, a man who brakes on a freight train and is engaged in constantly coupling and in handling these freight ears, is in a business that is exceedingly hazardous; he is on the ground, jumping on to engines, running from one car to another; he is stopping ears when they are kicked and when they are switched and under all circumstances. They say this is such a hazardous thing we will not take the risk on your life, or if you are a switchman in the same way you are jumping on to locomotives, you are jumping off, riding on the cow-catchers, you are riding everywhere, and that is so hazardous we will not accept you as a risk; if you become such we will not take you.

That is what the parties were getting at, and the only way to avoid this testimony and the intent of the parties is by reason of applying to him a technical name, that of district yard brakeman. Yet he is still performing the same things, doing the same things, in substance, the same hazardous work that he would if he was a freight brakeman. That is what the parties had under consideration when they made this contract, and we think this evidence shows that this work was quite hazardous, that he was a railroad freight brakeman, and he was not doing anything else but acting as a freight brakeman, althought he had a limited territory, that is the only difference. I mean by that, it is the only difference that ought to bear on this contract. Of course there is a difference in pay, and other little differences that do not bear upon the intention of the parties in making the contract at all.

The case was decided in favor of the insurance company, and we think justly so under this testimony.

Now it is contended there was error in the introduction of testimony. This question was asked:

“What is meant by a railway freight brakeman?” Answer. “A man who runs on a through train, a way train; a man who may brake on a through train or way train. ’ ’

That was objected to and an exception saved to the ruling of the court in overruling the objection. Then the testimony goes right on to ascertain from the witness the duties of a railway freight brakeman,' instead of stating what the difference is, or what constitutes one or what constitutes another, he now goes on to tell the duties of each, which is the better way, so that the whole testimony which was sought in that case was determined, and that was not error.

This question was asked:

“And is there any difference in the pay that they receive?”

And that was objected to and sustained. It clearly appears from the testimony, and is not disputed on the other side, that there is a difference in the pay, so it could not possibly have been prejudicial, because we do not see it determined any question under this contract that is material to it. It was not to be void if he received less pay than somebody else, some other class of men; but it was to be void if he did a certain kind of work, if he was engaged in a certain kind of work, and hence, the pay hasn’t anything scarcely to do with it.

Then there was a conversation between him and another party, and that party was called, after this insurance was perfected; there was a conversation as to what he said about the validity of his policy by the fact he was engaged upon the railroad, and doing the kind of work he was.

Metcalf & Cinniger, for plaintiff in error.

E. G. Johnson, for defendant in error.

The court, after that testimony was partly introduced, made a ruling that it was not competent at all to defeat the plaintiff’s right under that contract, she being the one to whom the money was to be paid ; that he could not make any admission nor by any conduct of his, anything he might say, defeat her right to a recovery, and that seems to be the holding of the court, so the court ruled that testimony was not admissible for any such purpose as that, but only as showing what he was engaged in doing at that time, and that testimony was all received under that ruling, although different questions were asked thereafter and exceptions taken, yet that ruling of the court was made, and we do not see why it may not be used to show what work he was engaged in at the time of this conversation.

It was not necessary to show the kind of work he was then doing, and the purpose of the party might have been for something else; but the court was ruling it might be admitted for one purpose, it was proper only for that purpose,- although perhaps the purpose of the party introducing it was to get before the jury the fact he thought his policy was not good for anything if he was killed in the service, by reason of the occupation he was following. But (that the parties could have easily taken care of by having the court charge the jury specially they should not consider the evidence for such purpose.

Then this objection is made, when the evidence was all in, the plaintiff asked the court to direct the jury to bring in a verdict in her favor. Immediately the defendant, with apparent pleasure so far as we can see, asked the court to direct a verdict in favor of the company, and the court thereupon took the case and disposed of it. The case, First National Bank v. Hayes, 64 Ohio St., 100, we think, is decisive of this question, that such was the duty of the court, and it was not error in the court to do it, where both parties request the court to charge the jury to bring in a verdict in favor of himself. So we find no error in this record, and we affirm the judgment.


text:
    UNLAWFUL SALE OF SKIMMED MILK.
    [Circuit Court of Lucas County.]
    Albert S. Guilder v. The State of Ohio.
    Decided, January 25, 1904.

      Milk, — Dairymen not Exempt — From Statute Prescribing that Skimmed Milk — Gan be Sold Only from Plainly Marked Cans — Meaning of the Word “Dealers" — Application of Police Regulations.

    1. Police regulations are not to be interpreted as are revenue laws, which, admit of favored classes, but must be applied with the purpose of preventing all persons from doing the thing prohibited.
    2. The word “dealer”, therefore, as used in Section 4200-11, relating to the sale of skimmed milk, includes one who sells milk obtained from his own cows, as well as one who buys and sells milk.
    Parker, J.; Haynes, J., and Hull, J., eonenr.
   This is a proceeding in error brought to.obtain a reversal of a judgment of conviction of the plaintiff in error in the police court of this city because of the violation of a certain provision of the dairy and food laws of the state. The judgment of the police court was afterwards affirmed by the court of common pleas. The plaintiff in error seeks to reverse both judgments.

The section under which the plaintiff in error was prosecuted is 4200-11, being Section 3 of an act found in Vol. 86, Ohio Laws, at page 229. It reads:

“No dealer in milk, and no servant or agent of such dealer, shall sell, exchange, or deliver, or have in his custody or possession, with intent to sell, exchange or deliver, milk from which the cream or part thereof has been removed, unless in a conspicuous place, above the center upon the outside of every vessel, can or package from which or in which such milk is sold, the words “skimmed milk” are distinctly marked in uncondensed gothic letters not less than one inch in length. Whoever violates the provisions of this section shall be punished by the penalties provided in Section 1.”

The penalty provided in Section 1 is, for the first offense, a fine of not less than fifty dollars nor more than two hundred dollars. This appears to have been the first offense charged against the plaintiff in error.

It appeared upon the trial of the case in the police court that the plaintiff in error was the owner of a dairy, and that all the milk which he had was the product of his own dairy,; that no part of the milk which he was engaged in selling had been obtained, by purchase or otherwise, from others, and it was there contended on behalf of Guilder, and is contended here, that he does not come within the class of persons who are prohibited from carrying milk for sale unless they have the packages marked as prescribed by this section; that is to say, that he was not a “dealer” in milk, because he was not engaged in buying and selling milk— he was selling the product of his own dairy. Counsel for plaintiff in error has furnished us with a brief in which he cites a number of cases where the word “dealer” is defined, and in all those cases the “dealer” is described and defined as one who makes a business of buying and selling, as a middleman between the producer and consumer of the article. We are cited to Vol. 5 of The American & English Encyclopoedia of Law, at pages 122-123, First Edition, where in the test it is said, under the heading of “Deal” and Dealer”, that it is “To trade; to buy and sell for the purpose of gain; to traffic; to have to do with.” “A dealer is therefore one who makes a business of buying and selling; he is the middleman between the producer and consumer of a commodity. ’ ’ A large number of cases are cited in support of this definition. Most of them are cited in the brief of counsel for the plaintiff in error. Among the cases cited are Norris Bros. v. Commonwealth, 27 Pa. St., 494; Commonwealth v. Campbell, 33 Pa. St., 385; and in the case of Barton v. Morris, 10 Philadelphia (Penn.), 360, it is said:

“A farmer who sells the product of his farm, and occasionally that of his neighbors, at a market-stand in a city, is not a dealer. He does not buy, but only sells.”

Ex Parte Herbert, 2 Vesey & Beames’ Repts., 399, and Overall v. Bezean, 37 Mich., 506, are also cited.

It is urged by counsel for plaintiff in error that the word “dealer” is, therefore, a word that has a fixed legal meaning and that it must be presumed that the Legislature, in the enactment of this statute, used the word in the sense defined in these eases, and that since the plaintiff in error does not come within the class described in the statute, the conviction was wrong and should be set aside. Attention is called to the fact that in the statutes generally, respecting the adulteration of foods, and in other sections of the same statute, the terms used to designate the persons who shall be amenable to the penalty and who are subject to the prohibition, is general, i. e., “whoever” does this or that; “any person” who does this or that; while in this particular section there is a class described, to-wit, “dealers.”

On behalf of the prosecution we are not furnished with any authorities, and, indeed, no one has appeared before us to present the case; and, not having made, a very thorough search for authorities ourselves, we are unable to say what may or may not be produced in the way of authority in opposition to the eases cited. The eases cited, however, in the brief of counsel for the plaintiff in error, and all that we have examined, are eases where the revenue laws of the state were under consideration; laws taxing dealers, or laws requiring them to procure a license before trafficking in certain products; and the holdings are in harmony with the general governmental policy, apparently a well settled policy, manifested in many statutes as well as in the decisions of courts, 'to exempt farmers and other producers selling their own products, or the raw material, and sometimes even exempting a manufacturer selling his products where the manufacture is from the raw materials, and especially those raised or produced by the manufacturer. A great many examples of this policy may be found in the statutes of our own state. I call attention to Section 1653, paragraph 14. This section confers certain powers upon hamlets, and paragraph 14 provides that they shall have power to regulate peddlers. Section 2672-19, provides for the licensing of peddlers in certain cities — I believe the section applies to Cincinnati — and contains this provision:

“Provided, that any person selling agricultural produce of his own raising shall not be liable for license for selling, hawking or peddling the same in any mode or manner in the markets, public streets or alleys of said city. ’ ’

Section 2669, which grants power to councils of municipalities generally to grant licenses, contains this provision:

“But nothing in this section shall be construed to .authorize any municipal corporation to require of the owner of any product of his own raising, or the manufacturer of any article manufactured by him, license to vend or sell in any way, by himself or agent, any such article or product.”

And 4401 of the Revised Statutes, which is in the chapter respecting dealers and peddlers, provides for licenses and for penalties for selling without license, and provides that:

“If any person vend or sell in this state, as a peddler or a traveling merchant, any goods, wares, or merchandise, except such goods, wares and merchandise as are manufactured within this state by himself, or employer, without having first obtained a peddler’s license so to do, he shall forfeit and pay,” etc.

Another instance of this is found in the Dow Law, beginning with Section 4364-9 and running through and including 4464-23. This law lays a tax on the business of trafficking in intoxicating liquors, but defines the phrase “trafficking in intoxicating liquor” to mean the “buying or procuring and selling of intoxicating liquors otherwise than upon prescription issued in good faith by reputable physicians in active practice, or for exclusively known mechanical, pharmaceutical or sacrimental purposes, but such phrase does not include the manufacture of intoxicating liquors from the raw material, and the sale thereof at the manufactory, by the manufacturer of the same in quantities of one gallon or more at any one time.” It is somewhat significant that the Legislature deemed it necessary to limit the word “trafficking” so that it should not include certain sales by the manufacturer, but by the plainest implication has made it include even sales by the manufacturer, unless the liquor shall be manufactured from a certain class of material and the sales shall be made at a certain place and sold in certain quantities.

In the act respecting skimmed milk, involved here, the noun “dealer” of which the connate verb is “dealer” and the participial form is “dealing”, a word set down by lexicographers as synonymous with “trafficking”, when applied to transactions like that under consideration, there is no such limitation of its scope. In other words, in the use of the synonym “trafficking” the Legislature deemed it necessary to expressly exclude what it seems to have thought it would otherwise cover, to-wit, certain dealing or trafficking that would not have been included at all if the theory of counsel for plaintiff in error here is correct, i. e., it has used the word “trafficking” as including sales by one who does not buy, unless such sales are of goods manufactured from raw materials and are made at a certain place and in certain quantities.

But, in looking to the mischief to be remedied by this statute governing the selling of skimmed milk we find that the evident purpose was to prevent frauds upon purchasers and consumers of milk, a staple article of diet, a food that is in universal use, and in respect to which frauds by adulteration and by dilution or subtraction, are very easily practiced and are insidious, and oftentimes dangerous in their results; and bearing in mind that many, if not most persons who make a business of selling milk sell from their own dairies — obtain their supplies from the milk of their own cows — we can not believe that it was the purpose of the Legislature to permit the sale of skimmed milk with impunity by this class while imposing a heavy penalty for the same act upon those who might buy their milk for sale. The fraud is as flagrant and the mischief as great in the one case as in the other. The moral turpitude is as great in the one ease as in the other. We can think of no valid reason for exempting the one class from the prohibition and penalties of the act and including the other, and therefore we can not suppose that the Legislature intended to make such a distinction. In the eases cited — and the only cases we have examined — no such police regulation, designed to save the health and lives of people and to prevent the perpetration of such frauds was under consideration, but they dealt with quite a different class of laws, where, as I have said, the purpose seemed to have been to prefer and favor the producer — not to- bring him within the purview of acts imposing penalties for making sales of impure articles. In other words, the purpose of the law in each one of the cases cited was to raise a revenue and the policy of the law seems to have been to not require the contribution of revenue from those who sell their own products.

Ritchie, Murphy & Phelan, for plaintiff in error.

W. G. Ulery, Prosecuting Attorney, for defendant in error.

We hold that the word “dealer” in Section 4200-11 includes one who sells milk obtained from his own cows as well as one who buys and sells milk, and therefore the judgments of the lower courts will be affirmed.


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    CONSENT OF INSURANCE COMPANY TO SALE AND TRANSFER.
    [Circuit Court of Ashtabula County.]
    Scottish Union & National Insurance Co. v. G. P. Brown.
    Decided, 1903.

      Fire Insurance — Consent of Agent to Sale of Property — Means Consent to All the Conditions of the Sale — Including the Placing of an Incumbrance Thereon.

    Where an agent of a fire insurance company, who has authority so to do, enters upon the policy the consent of the company to a transfer of the property insured therein, the consent is binding upon the company whether the sale be all for cash, or part cash with a mortgage securing the balance.
    Laubie, J.; Burrows, J., and Cook, J., concur.
   In this case the plaintiff company seeks to have a judgment set aside which was rendered against it in favor of the plaintiff below, Brown, in an action upon a fire insurance policy. We have examined with care all the alleged errors, and find that by reason of the condition of the law in this state substantially all are immaterial. It .is evident from the statement of the facts in the pleadings and as shown in the evidence, that the consent of the insurance company to the sale was, in effect, a consent to all the terms of the sale, including the giving of the mortgage.

At the time of the sale of the stock of goods from Wagstaff to Brown, Wagstaff, in behalf of himself and Brown, took the policy to the agent of the company, Mr. Booth, and made a statement as to the sale of the property by him to Brown, in good faith, without referring to the mortgage, in order to obtain the consent of the company thereto, and to a transfer of the policy to Brown; and such assent was placed upon the policy by Booth as the agent of the company. Booth had authority to do this, and to consent to the placing of a chattel mortgage upon the property. He had authority to issue policies, and was a general agent of the company. Having this authority, he entered this written consent of the company to the sale and transfer of the property from Wagstaff to Brown, and that consent operated as a consent to all the terms and conditions of the sale, whether it was a sale for cash, or part cash with security for the balance, or what not, and effected a valid transfer of the policy upon the stock of goods to its purchaser.

Whatever may be the law in other jurisdictions, it seems to be well settled in this state that such is the effect of such written consent, although not a word was said about the chattel mortgage.

In Farmer’s Ins. Co. v. Ashton, 31 Ohio St., 477, the syllabus is as follows:

“It was stipulated in a policy of fire insurance, that if the property insured should be sold or transferred, or any change made in its title, without the assent of the company insuring, the policy should be void. The assured sold and conveyed the property for an agreed sum, to be paid in the future, the company assenting to the sale, but without knowledge of its terms, To secure the payment of the purchase price, the purchaser, at the time of the sale, and as a part of its terms, executed a mortgage of the property to the vendor, of which the company had no knowledge until after the property was destroyed by fire. Reid: That the assent given by the company to said sale and transfer of title was an assent to the terms upon which the same .were made, and, hence, that the execution of said mortgage did not avoid the policy.”

Will G. Guenther and Theo. Hall & Son, for plaintiff in error.

Mr. Starkey, for defendant in error.

The opinion was rendered by Boynton, J., and upon the assumption that the execution of the mortgage was a change of title, he says, page 479:

“The assent of the company was expressly given to the sale and conveyance by Francis Ashton to the defendant in error, and the mortgage back was a part of the same transaction, and one of its constituent elements.
“The assent given was in no wise qualified, or conditioned on a sale for ready money. Nor is it claimed to have been fraudulently induced or procured. We, therefore, must hold it to have been an assent to the sale and conveyance as actually made between the parties, and consequently an assent to whatever change in the title the execution and delivery of the mortgage effected. ’ ’

In the case before us, it is admitted that the written'assent to the sale was made in writing upon the policy, and if the agent did not seek to find out what the terms of that sale were, whether for cash or not, was no concern of Brown’s, but was simply a matter for the insurance company itself and its agent. The agent assented in the name of the company to the sale, and that included an assent to- all of its terms and conditions.

We also find that there was no misconduct shown on the part of the jury, and that the amount of the verdict was not excessive. All other of the alleged errors are immaterial, as the plaintiff was entitled to recover in any event, and the judgment is affirmed.

Mr. Starkey: “They said in argument they did not rely upon the jury computing too much interest in this ease, but if there is any question over it we would like to remit the amount.”

Judge Burrows: “You better remit it, as they might rely on it in some other court if they don’t in this.”

Mr. Starkey: “We remit twelve dollars.”


text:
    QUESTIONS UNDER THE BEAL LAW.
    [Circuit Court of Wood County.]
    Frank Fike v. The State of Ohio.
    Decided November 28, 1903.

      Beal Election Law — Irregularity in Publication of Mayor’s Proclamation — Validity of Election can not be Impeached Collaterally in a Criminal Prosecution — Change of Venue — Final Jurisdiction— Mayor’s Judgment for a Misdemeanor can not be Revieioed — On Weight of Evidence.

    1. Election laws are to be construed liberally so as to preserve, if possible, and not defeat the choice of the people as expressed at an election.
    2. Failure to publish for a full period of ten days the mayor’s proclamation of a special election to be held under Sections 4364-20®, Revised Statutes, et seq. (commonly called the Beal Local Option Election Law), is not fatal to the validity of the election, where the election was otherwise regularly held, knowledge of its approach was general throughout the municipality, and a comparatively full vote was cast, and no attempt was made to deceive or mislead anyone, and it does not appear that any elector was either without knowledge thereof, kept from voting, of failed to vote on account of the failure to give ten days notice Publication of notice for ten days, under such circumstances, is not jurisdictional, and failure to publish it for the full period is a mere irregularity which does not invalidate the election.
    3. The validity of a special local option election held under Sections 4364-20®, Revised Statutes, et seq., which resulted in the prohibition of the sale of intoxicating liquor within a municipality, can not be collaterally impeached by a defendant in a criminal prosecution for' selling intoxicating liquor in violation thereof, notwithstanding he may have moved into the municipality after the election. The election provided by Section 4364-20Í, is exclusive, and the general rule that a defendant in a criminal action may raise the constitutionality of the law under which he is prosecuted has no application to such cases.
    4. Mayor’s courts are without authority to grant a change of venue in misdemeanor prosecutions; final jurisdiction thereof is given such courts under Section 1817, Revised Statutes; Section 6529, Revised Statutes, providing for a change of venue before justices of the peace when the justice is a material witness in the case or is prejudiced is not applicable to mayors’ courts.

      5. The judgment of a mayor’s court in misdemeanor prosecutions can not be reviewed upon the weight of the evidence. Section 6565, Revised Statutes, relating to bills of exceptions before mayors .and justices of the peace only provides for a review on questions of law, not of fact; and Section 1752, Revised Statutes, only authorizes such review when the judgment is one of conviction for violating a municipal ordinance.
    Hull, J. (orally); Parker, J., and Haynes, J., concur.
    Error to the Court of Common Pleas, "Wood County.
   There are sis of these cases, involving the same questions and the opinion of the court will be delivered in the case of Frank Fike.

These cases are in this court on petition in error to the judgment of the court of common pleas, that court affirming the judgment of the mayor’s court of the village of Freeport in this county. This court is asked to reverse the judgments of both courts below. The plaintiffs in error were prosecuted and convicted before the mayor of the village of Free-port for the violation of certain provisions of the liquor law of this state known as the Beal Law, which provides for the regulation of the liquor traffic.

An election was held under the local option feature of this law in the village of Freeport on the 18th day of July, 1902, and at that election a majority of the electors who voted, voted in favor of prohibiting the sale of liquor; sixty-eight votes against such prohibition and a hundred and twenty-seven in favor; or, to put it in the language of the statute sixty-eight votes for the sale and a hundred and twenty-seven votes against the sale, making a hundred and ninety-five votes in all cast. Under the provisions of this law, after a petition has been duly filed as provided in the statute, an election is to be held after due proclamation has been made, and in case a majority of the electors vote against the sale, such sale from that time becomes unlawful within the limits of the municipal corporation. These plaintiffs in error, defendants below, were convicted and fined for an alleged violation of this law.

The chief contention, although there are other claims made upon this proceeding in error, is that the election was not a legal election, and that therefore the voters of this municipality have never lawfully chosen by ballot to prohibit the sale of intoxicating liquors within its limits. The ground of complaint is that the proclamation for the election signed by the mayor was not published for the period of ten days as required by the provisions of this law, Section 4364-24 providing that proclamation shall be made the same as for election of councilmen, which requires ten days publication of notice.

The proclamation in this case of the mayor giving notice of the election was dated by him as of the 8th of July, 1902, and called for an election upon the 18th of July to be published in the weekly paper, The Prairie Depot Observer, but it was not published until the issue of the paper of that week, which was the 11th day of July, 1902, notifying the electors that the election would be held on the 18th of July, thereby giving them only seven days’ notice, if we exclude one day; eight days at the most — while the law requires ten days’ notice.

It is claimed that this was fatal to the election; that this statute provides how the sale of introxicating liquors may be prohibited by the people of a municipal corporation; that it is in a way permitting the people to make a law for themselves by vote, and it is claimed that before any valid election can be held, the requirements of the law must be complied with, and the notice must be given as required by the statute, and if not, that all proceedings are null and void, and cases are cited which it is claimed tend to sustain this proposition.

On the other hand, it is claimed by the State, the defendant in error, that if the evidence shows that there was no fraud, no intent to' prevent the electors from having full notice of this election, and if the election was regularly held, and if the evidence shows there was a full and fair vote and general knowledge of the coming election in the community, that this failure on the part of the mayor to give notice the full time required by •the statute would not invalidate the election. The record in this case shows that the petition was filed as required by law — the law requiring the signatures of forty per cent, of the electors— and that the election was held at the proper time after the petition was filed; and it shows that there was knowledge of the coming election among the people in the community; that it was discussed upon the streets; that public meetings were held to consider and discuss the matter at. which speeches were made, and there was work done pro and con, as the record shows by the voters of the municipality — some working for it as the election approached,, and some working against it. There is no evidence that any person, whether elector or not, man, woman or child in this village failed to learn, or did not have notice of this election. There is no evidence that any voter was kept from voting, or failed to vote, at this election on account of the lack of two or three days notice of the time required by law.

The election occurred in July and there were 195 votes cast. At the municipal election of the preceding spring there were 175 votes east; at the presidential election held in 1900 there were more votes cast, but the reason for that was that the entire township vote was cast then. There were more votes cast at this election under the Beal Law than were cast at the preceding municipal election.

We are of the opinion that under this state of facts, the failure to give, in the respect I have mentioned, the notice, or rather publish the proclamation of the mayor, was not fatal; that that in itself was not sufficient to have this election declared invalid.

This question, and others of similar character have been before the courts of this country a great many times, and cases may be found, possibly, that would go so far as to hold this election invalid, but the great weight of authority is against it. The general doctrine is that mere irregularities, that do hot go to the foundation of the election, will not invalidate the election, although the provisions of the statute have been technically violated, if it appears that there has been a fair election and a comparatively full vote, and no fraud or attempt to deceive or mislead. I should add further in connection with the facts in this case, that the election was held under the auspices and direction of the regular County Election Board, and that the regularly appointed judges and clerks had charge of the election, with perhaps one exception; one officer was sworn in that day to take the place of an absentee.

The general rule, as gathered from all the authorities, is stated in The Am. & E. Ency. of Law, Vol. 10, page 626 (2d. Ed.), where the author says:

“In the ease of a special election, however, when .the law does not fix the time and place for holding the same, but they are to be fixed by some authority, failure to give notice or issue a proclamation of the election (that is, failure to give any notice) will render it a nullity, unless the people have actual knowledge and attend, so that the result is not affected. If it appears that the people generally had actual knowledge of a special election, so that the result would not have been different if proper notice had been given, failure to give such notice does not vitiate the election. ”

The case of Dishon v. Smith in 10th Iowa, page 212, is in point; this is found in the syllabus:

“Notices of Election: The provisions of Chapter 46, laws of 1855, ‘An act in relation to county seats,' prescribing the time and manner of giving notices of the presentation of a petition for holding an election on the removal of the county seat, are directory merely, and the absence of such notice will not' invalidate an election of which the people were duly notified. An election will not be invalidated by the omission of some duty by an officer charged with giving notice thereof, when such election has been duly ordered and held.”

I will read from page 218 of the opinion:

“In matters of such a public nature, the observance of each particular is not held a prerequisite to validity. And it is a general rule of law that statutes directing the mode of proceedings of public officers, relating to time and manner, are directory. ’’

And further on:

“But there is a peculiar fitness in the rule when applied to popular elections, in which case we may consider the character of the duties and of the men necessarily chosen to perform them. They are usually men not instructed in their duties nor in nice forms and distinctions. Many of the duties, too, are to be performed in haste and amidst confusion and without opportunity for deliberation.”

And further along:

"And it has been remarked, further, that the people are not to be disfranchised, to be deprived of their voice, by the omission of some duty by an officer, if an election has in fact been held at the proper time; and that such penalty ought not to be visited upon them for the negligence or willfulness of one charged with similar duties. Upon considerations like these the courts have held that the voice of the people is not to be rejected for a defect, or even a want of notice, if they have in truth been called upon and have spoken. In the present ease whether there were notices or not, there was an election and the people of the county voted, and it is not alleged that any portion of them failed in knowledge of the pendency of the question, or to exercise their franchise.”

So in the cases under consideration, it is not claimed by the plaintiffs in error that there was not full notice and knowledge of this election that was to be held, and it is not claimed that any voter was kept from voting, and as is said in another part of this opinion, in the same case this matter of notice is not jurisdictional in the ease of an election, as it is in the case of beginning a suit in court. The court says:

"And it is further averred that there was no such notice in fact. It is an error to regard this as a jurisdictional matter. This idea pertains in cases where the courts acts judicially and in matters between party and party, and not to one of the nature of the present one, which is a vote of the people. Nor does the want of such notice invalidate the election.”

In a case in California, the election place was cha'nged a short distance ftrom the regularly appointed place, and the Supreme Court of California held that that would not vitiate the election.

In the 15th O. S., 532, a case is reported where an election was held invalid because there had been no notice of the election and no proclamation that such an officer was to be elected. This was an election to fill a vacancy in the office of probate judge; the court in the syllabus says:

"Where a vacancy is about to occur in the office of probate judge, by reason of the expiration of the term of an incumbent of that office, and the sheriff, in pursuance of the statute, in due time, prior to the day for the regular election, publishes his proclamation, giving notice of such election, and enumerating therein all the state and county offices to be filled at such election, except the office of probate judge, in respect to which the proclamation is silent; and, by reason of such misfeasance of the sheriff, the great body of the electors of the county are misled, and have no notice, either official or in fact, of an election to fill the office of probate judge; but, nevertheless, a small number of the electors of the county, less than one fourth of the whole number of voters at that election, cast their votes for a single candidate, and no votes are cast for any other, such attempted election is irregular and invalid.”

But no such state of facts exist in this case, where, as I have said, there was a larger vote than at the preceding municipal election and there was a general knowledge of the election. Judge Brinkerhoff speaking for the court says, p. 537:

“In deciding this case, however, we do not intend to go beyond the case before us, as presented by its own peculiar facts. We do not intend to hold, nor are we of the opinion, that the notice by proclamation, as prescribed by law, is per se, and in all supposable cases, necessary to the validity of an election. * * * We have no doubt, that where an election is held in other respects as prescribed by law, and notice in fact of the election is brought home to the great body of the electors, though derived through means other than the proclamation which the law prescribes, such election would be valid. But where, as in this case, there was no notice, either by official proclamation, or in fact, and it is obvious that the great body of the electors were misled, for want of the official proclamation, its absence becomes such an irregularity as to prevent an actual choice by the electors, prevents an actual election, in the primary sense of the word, and renders invalid any semblance of an election, which may have beeen attempted by a few, and which must operate, if it be allowed to operate at all, as a surprise and fraud upon the rights of the many. ’ ’

As stated by the court in this case, where there is no general knowledge of an election, or such a lack of knowledge that only one man was a candidate for the office — a case like that is not in fact an election — it is merely a few electors getting together and appointing a man to the office. That was not the case here. The general doctrine of the eases, and the authorities is, that election laws are to be construed liberally, so as to preserve, if possible, the choice of the . people as expressed at an election, and not to defeat it as is said in substance, by Judge Cooley in his work on Constitutional Limitations, page 778.

In the case of Harpster v. Brower, 5th C. C. Rep., 395, a question similar to the one under consideration here was raised. This .was a special election upon the question as to whether a town hall should be erected in the township, and the statute under which the election was to be held required notice to be given thirty days, and the notice that was given lacked six days of the time, and it was claimed that the election was invalid. The second paragraph of the syllabus is as follows:

“An election will not be declared void because the notice required by statute was not given for the full length of time specified, when it appears that the great body of electors had actual notice of and participated in the election.”

Judge Moore says in the opinion, that in view of the facts in the case it was not an absolute necessity that they should pass upon the question, but they did give their views upon it as stated in this paragraph of the syllabus which I have read.

A recent case in Washington is in point (58th Am. Dec., page 38, the ease of State v. Doherity); the Supreme Court of that state say: “Formalities in giving notice prescribed by statute are regarded as directory -merely, unless there is a declaration that a failure to observe a particular formality shall render the election .void. An election will, therefore, not be declared invalid for the omission of some formality in the notice, if it appears that the time and place of holding the election and the questions to be submitted had become matters of general notoriety, and that the great body of electors participated in the election.”

The provision in the Beal Law requiring notice is found in Section 4364-24:

“And notice shall be given and the election conducted in all respects as provided by law” for the election of members of the council of the corporation, so far as said law may be applicable.

But there is no provision that unless this requirement as to notice is complied with strictly, the election shall be void. We hold, that^ notwithstanding this irregularity in the matter of notice, the election was valid and binding upon all the people of the municipality of Freeport.

It is urged further by counsel for the State that this question can not be raised in this proceeding; that upon a plea of not guilty under a’prosecution for a violation of the law, the defendant can not be heard upon the question of the validity of the election for the reason that the statute itself provides a method for contesting the validity of the election, and it is urged that that method must be followed.

This provision is found in Section 4364-20i, which provides:

“Any person being a qualified elector of any municipal corporation wherein an election shall have been held as’provided for in this act, may contest the validity of such election by filing a petition duly verified with probate court of the county in which such municipal corporation is situated, within ten days after the election, setting forth the grounds for contest.”

And then follows the procedure: The jury shall be summoned, etc., and the method of procedure of the contest before the probate judge. It is urged by the plaintiff in error that a defendant in a criminal case has the right to raise the question of the validity of the law at any time. This is undoubtedly true generally, but the question here -is rather whether he can question the validity of an election of an official before whom he is being tried, or the validity of an election held under such a statute as this, or whether such question must not be determined in an election contest as provided by law, and we are of the opinion that this question can not be raised as has been sought to raise it here; that the validity of this election can not be attacked collaterally. The constitutionality of an act may be raised in this way, but the general rule is, and so far as we can discover, the universal rule that an election contest can not be injected into a criminal prosecution by attacking the validity of such an election as this, and we think that has been settled by the Supreme Court of this state, by a case that went from this county. It is the case of Peck v. Weddell in 17th Ohio State, page 271. This was a county seat contest; a contest between Bowling Green and Perrysburg where an election had been held, and it was claimed that various frauds had been committed for the purpose of showing, or attempting to show that a majority of the people of the county desired to have Perrysburg for the county seat The court say in the second paragraph of the syllabus:

“That allegations of fraud and illegality in conducting the election, constitute no sufficient ground for such injunction. Wrongs of such a nature can be inquired into and redressed, only by means of a contest of the election, pursuant to the provisions of the act of April 18th, 1857.”

Here was a claim of fraud and illegality in conducting an election. The claim in the case before us is that there was a fatal defect in the matter of notice. The court in the case cited held that such a question must be determined in a contest, and on page 284, Judge Scott, delivering the opinion of the court, says:

“It is evident that this mode of inquiring into alleged frauds in elections, and of ascertaining the will of the majority of the electors as expressed by the legal ballots, would be very illy adapted to accomplish the end proposed, and would be as likely to faeiliate the perpetration, as the correction, of frauds against the public. But the remedy by contest under the statute is speedy, appropriate and adequate; it affords an opportunity of being fully heard, to everyone interested; and the decision of such contest is by a judgment which binds all the world. The specific remedy having been given by statute, and being the sole remedy adapted to the ends of speedy justice, .there is no reason why a court of equity should intervene, by injunction, until the facts alleged in the petition have been found, upon such contest. It wras held by this court in State v. Berry (14 Ohio St., 315), that a contest is the specific and sole remedy provided by statute for the correction of all frauds, errors, and mistakes which may occur in the process of ascertaining and declaring the public will, as expressed through the ballot-boxes. ’ ’

As stated by Judge Scott, the question was first decided in the case in the 14th Ohio State, to which reference is made. The Constitution itself requires the Legislature to make provision for the contest of all elections. Article II, Section 21, is in this language: ‘ ‘ The General Assembly shall determine by law, before what authority, and in what manner, the trial of contested elections shall be conducted;” and the General Assembly in this case determined and declared, in the statute which I have read, how the election. contest, growing out of such an election as this and before what authority, should be determined.

The case in the 15th O. St., page 114, is to the same effect, the syllabus reading:

“A specific mode of contesting elections in this state, having been provided by statute, according to the requirements of the Constitution, that mode alone can be resorted to, in exclusion of the common law mode of inquiry by proceeding in quo warranto. The statute which gives this special remedy, and prescribes the mode of its exercise, binds the state as well as individuals.”

The question in this ease was whether the State would be bound the same as an individual might be' by such contest, and the Supreme Court held that the State would be bound as well as the electors of the community. They say on page 135 of the opinion:

“We think that it was clearly intended that the State should be bound. In our system of popular government, as between candidates who are legally eligible, an absolute right of choice belongs to the electors, to be exercised according to their sole discretion, and when their votes have been canvassed, and the result publicly declared, if all the electors of the proper district, whose will is entitled to absolute control, are satisfied with the fact thus declared, we perceive no good reason for allowing that fact to be questioned in any other quarter. ’ ’

In the ease at bar the election having been held, the result having been declared, and the people having expressed their choice, the law has become fixed and whoever comes into the municipality thereafter is bound by it. It is urged in this ease that if there was a defect in the notice of the election it ought not to be held valid against one who moved into the municipality afterwards and had no opportunity to contest. We think this objection is not well taken. He must submit to the will of the people expressed before he came into the community. The 26th O. S., p. 216, is also in point, especially on page 221, and an earlier case in the 8th Ohio, p. 375, is to the same effect.

In the case of State v. Cooper, 101 N. Car., 684, found in 8 S. E. Rep., 134, the Supreme Court of North Carolina say:

“The ascertainment and declaration of the result of the election was prima facie correct, and it was conclusive until, in a proper action brought for the purpose, the true result otherwise should be ascertained by a judicial determination. The law contemplates and intends, generally, that'the result of an election, as determined by the proper election officers, shall stand and be effective until it shall be regularly contested and reversed, or adjudged to be void by a tribunal having jurisdiction for the purpose. * * * The law does not provide for such continual and repeated contests in every ease that may arise. It intends that one contest, properly instituted for the purpose, shall establish the validity or invalidity of the election questioned. ’ ’

We hold that' a defendant being prosecuted under this statute, can not defend- upon the ground that is urged in this case; that can only be taken advantage of by a contest of the election according to the provisions of this statute.

There are two other objections made which I will refer to briefly. The cases were tried without a jury. A change of venue was asked before the mayor on the ground that he was biased and was a material witness. We find no provision in the statute permitting a change of venue on this ground in a prosecution before the mayor. Section 1744 provides that the mayor within the limits of the corporation shall have all the jurisdiction and powers of a justice of the peace, etc. Section 6529 provides for a change of venue before a justice of the peace. Section 1817 provides for the final jurisdiction of the mayor in cases of misdemeanor:

“He shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is by the Constitution entitled to a trial by jury; and his jurisdiction in such eases shall be co-extensive with the county.”

There is no provision in the statute for a change of venue from the mayor’s court in a case of this bind where a man is being tried for a misdemeanor.

Frank Sala and James, Millard & Powell, for plaintiff in error.

E. G. McClelland, Prosecuting Attorney, and Wayne B. Wheeler, for defendant in error.

It is urged further that the conviction of the defendant and the judgment of the mayor was against the weight of the evidence. Without discussing the question at any great length I will say that we hold that under the statutes in this state, a judgment of the mayor in,cases of prosecution for a misdemeanor can not be reviewed upon the weight of the evidence. There is no provision in the statute for such review. Section 6565 relates to bills of 'exceptions before a justice of the peace, mayor and police judge, but that section only provides for a review on questions of law and not on questions of fact; and it has been held in the 26th O. S., 447, and the 34th O. S., 11, that the judgment of a justice of the peace can not be reviewed on the weight of the evidence under this section; also in 7 C. C., 208. Section 1752 is sufficient to permit the review on the weight of the evidence of a judgment of a mayor on a conviction for the violation of an ordinance, but is silent as to misdemeanors. So that we find that there is no provision for the review of a conviction before the mayor of a misdemeanor on the ground that the judgment is against the weight of the evidence; we therefore decline to consider these cases and have not considered them upon that question.

We find no errors in the record and the judgments in all the cases will be affirmed.


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    WHAT MAKES A POLICY OF INSURANCE AN OHIO CONTRACT.
    [Circuit Court of Hamilton County.]
    Abraham Plaut, Administrator of the Estate of Michael Schradzki, Deceased, v. The Mutual Life Insurance Company of New York.

    Decided, January 7, 1899.

      Life Insurance — Policy Issued by a Foreign Corporation — Becomes an Ohio Contract, When — Application of Section 3629.
    1. Where application for a policy of insurance is made in Ohio, and the policy delivered in Ohio, and the premiums paid in Ohio, such policy is an Ohio contract and governed by the laws of Ohio, notwithstanding the policy is issued by a New York corporation.
    2. Where a policy of insurance was issued prior to 1879 — Held: That the provisions of Revised Statutes of Ohio, Section 3629, do not apply.
    Hale, J., Caldwell, J., and Marvin, J., of the Eighth Circuit, sitting in the First Circuit; opinion by Marvin, J. (orally).

       Affirmed by the Supreme Court, without report, December 3, 1901 (65 Ohio State, 586).

   This case comes here on a petition in error, the plaintiff here being the plaintiff below, the defendant here being the defendant below.

The case was tried below without a jury, that being waived, to the court, and it resulted in a judgment for the defendant. A motion for a new trial being overruled, a petition in error was filed here. There is a bill of exceptions in the case, which purports to state all the evidence. Among the items of evidence was an agreed statement of facts, and in that agreed statement of facts it was agreed that the will of Hannah Schradzki should be read in evidence, and it was not copied, and we have nothing in the record to show what that will was, except the testimony of Fechheimer, who was executor of the will, and he testifies as to certain provisions about it; but in the view we take of the case as to what it is, is not material, but I call attention to it as being a fact that there is nothing in the record to show more than I have stated as to what the will is.

The facts are these: Michael Schradzki and Hannah Schradzki were husband and wife; they both died without children. Hannah died in 1887, and Michael died in 1894. In 1868 or ’69, policies of insurance were issued upon the life of Michael. Two policies were issued, one on the 20th of April, 1868, for $3,000, and the other on the 24th of April, 1873, for $1,000. The beneficiary named in each policy was Hannah Schradzki, the wife of Michael Schradzki, whose life was insured.

The premiums upon those policies, and each policy was paid during the lifetime of Hannah Schradzki by Hannah Schradzki. Hannah Schradzki died intestate, bequeathing her property in certain bequests to persons named in her will, and the balance of her property, I believe, to a certain charity. After the death of Hannah, the executor of her will paid the premiums on each of these policies up to the time of the death of- Michael Schradzki. The policies in each ease provide that payment shall be made of the amount insured to Hannah Schradzki, and if not living to her children, or their guardian, or their issue, in sixty days after due notice and proof of death.

As has been already said, these parties died, neither of them having any children. So that when Michael Schradzki, whose life was insured, died, there was no one in existence who by the terms of the policies would be entitled to payment.

The plaintiff here is administrator of the estate of Michael Schradzki; he says that he is entitled to have this money paid to him, because of there being no person in existence to whom the insurance should be paid by its terms, and that Section 3629 of the Revised Statutes of Ohio applies. That statute was passed in 1879, and it provides that:

“Any married woman may by herself, and in her own name, or in the name of any third person, with his assent as her trustee, cause to be insured the life of her husband, for her sole use, for any definite period, or for the term of his natural life, and if she survives such period or term the amount of insurance becoming due and payable by the terms of the insurance shall be payable to her, to and for her own use free from the claims of the representatives of the husband or any of his creditors; a policy of insurance on the life of any person, duly assigned, transferred or made payable to any married woman, or to any person in trust for her or for her benefit, whether such transfer is made by her husband or other person, shall inure to her separate use and benefit, and that of her children, independently of her husband or his creditors, or of the person effecting or transferring the same, or his creditors; and the amount of the insurance provided for in the preceding section, or this section, may be made payable, in ease of the death of the wife before the period at which it becomes due, to his, her or their children for their use, as shall be provided in the policy of insurance, or to their guardian, if under age; but if there are no children upon the death of the wife, such policy shall revert to and become the property of the party whose life is insured, unless it has been transferred as hereinafter provided. ’ ’

Now, it is said this section controls in this case, and that the amount provided for in the policy shall therefore be paid to the representative of the husband, the administrator of his estate.

Before going further it should be said that it is urged upon the part of the insurance company, that the disposition of this fund should be governed by the laws of the state of New York. It is a New York corporation, the policy was issued in New York. The facts are that the application was made here, and the policies were delivered here, the premiums were all paid here, and we think (under the authority of the case of Cross v. Armstrong, 44 Ohio St., 621-2) that this is an Ohio contract, to be governed by the laws of Ohio. But we think, as announced in the opinion of Judge Burket in the case of Ryan v. Rothweiler et al, in 50 Ohio St., 602, that the statute to which attention has been called does not apply. It may be said that it was obiter upon the part of the court to say what was there said, but we are content with the reasoning given and follow that opinion. The language of the judge is, that Section 3629 having been passed after the policy was issued, could not affect the rights of the parties.

That being true, this is the situation. I ought to say that it was said in argument as to the will of Hannah Schradzki that the executor was authorized by the will to spend for the surviving husband not only the income of the estate, but such part of the property as was necessary for his support, and the executor states further that he not only paid the income in support of the husband, but he spent more than the income.

Smith & Kuhn, for plaintiff.

Cohen & Mack and Stephens & Lincoln, for defendant.

The situation, then is, that Hannah Schradzki paid all the premiums on the policies; she died testate, and by her will she disposed of her property. The executor of the will paid out of her estate from that time on all the premiums, and nothing was ever paid upon these policies by anybody except Hannah Schradzki and the representative of her estate, the executor of her will. The statute does not apply.

The policies at the time of her death' were hers; they became part of her estate; nothing was done afterward that transferred that interest from her estate to her husband. That being true, judgment for the defendant was right.

Nothing has been said in the opinion about the matter of estoppel; but we do not think there was any estoppel from making a claim by anything that he did. It was said that the defendant was estopped; but that is immaterial. We hold that they were the property of the wife at her death, and the policies became a part of her estate, and would come under the provisions of her will, whether the policies are named in the will or not.

Judgment affirmed.


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    INJURY TO PROPERTY FROM OPERATION OF RAILWAY.
    [Circuit Court of Hamilton County.]
    The Cincinnati Connecting Belt Railroad Company v. William Burski.
    Decided, February, 1904.

      Railways — Depreciation of Property from, Operation of Damnum, Absque Injuria — Consequential Damages.

    Where a steam railroad is constructed by a railroad company on its private right of way adjacent to improved real estate, which becomes depreciated in value from the smoke, noises, cinders, etc., necessarily caused by the operation of said railroad without negligence, the resulting injury is “damnum absque injuria," and does not give rise to a cause of action. The law as to consequential damages laid down in Parrott v. Railway, 10 O. S., 624, is still the law of Ohio, except as modified in Section 3282, Revised Statutes, Ohio.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   William Burski and wife brought an action in the court óf common pleas against the Cincinnati Connecting Belt Railroad Company for damages.

The gist of the action is thus set out in the petition. The Cincinnati Connecting Belt Railroad Company has constructed a railroad upon piling, a trestle very near his house, and by reason of this construction and the operating of the railroad by reason of the smoke and cinders from the engine, the danger from sparks, the noise of the trains and the jarring of the house caused by said trains, makes their home uninhabitable and untenantable, and deprives them of the comfort and enjoyment of their property.

The defendant railroad company filed an answer setting up that they had built the railroad in question on their own property and denying all other allegations.

The case went to trial and the jury rendered a verdict for $500 and judgment was rendered by the court for the amount of the verdict. This action is brought in this court to reverse this judgment.

The evidence is to the effect that the operation of the railroad has seriously damaged the property of Burski. The noise, cinders, smoke and jarring caused by the running of trains in front and near . Burski’s house has naturally caused great damage, and as to such damage the verdict of the jury is abundantly sustained by the evidence.

One item of the evidence that was produced at the trial was to the effect that the railroad company had constructed near Burski’s residence a chute and side-track, where coal was stored and dumped into wagons, and that when the coal was being dumped and the wind was blowing from that direction, coal dust was blown into and on the plaintiff’s premises to such an extent as to cause great damage to plaintiff’s property. But this is not alleged in the petition as a ground for damages, but this evidence appears to have been incidental only to the cause as alleged in the petition, and the case does seem to have been tried on this as an issue. So that the verdict can not be sustained on this evidence alone under the state of the pleadings and the issue as actually tried.

The second proposition of the syllabus in the case of Parrot v. C., H. & D. Railway Company, 10 O. S., 625, is as follows:

“That in respect to the noises, smoke, vapor or other discomforts arising from the ordinary use of the railroad by the company, the occupant and owner of such lot and dwelling house has no more right to recover damages of the company than any citizen who resides or may have occasion to pass so near the street and railroad as to be subjected to like discomforts. That a railroad authorized by law and lawfully operated can not be deemed a private nuisance.”

Under the facts in this case which arose in 1852, there was no right of recovery from a railroad company while occupying a public street; this principle of the law as to public streets has been changed by Section 3283, Revised Statutes, which was passed in 1857, but except as to streets it is the law in Ohio to-day. And not only is it the law in this state, but in all the states so far as we have been able to investigate.

This principle is recognized as the law, in the case of The Baltimore & Potomac Railroad Company v. Fifth Baptist Church, 108 U. S., 317, which, is relied on by the defendant in error in this case. On page 331, Justice Field says:

Hollister & Hollister and Walter A. DeCamp, for plaintiff in error.

A. H. Bode and W. W. Pease, contra.

“Undoubtedly a railway over the public highways of the district, including the streets of the city of Washington, may be authorized by Congress, and if, when used with reasonable care, it produces only that incidental inconvenience which unavoidably follows the additional occupation of the streets by its cars with the noises and disturbances necessarily attending their use, no one can complain that he is incommoded. Whatever consequential annoyance may necessarily follow from the running of cars on the road with reasonable care is damnun absque injuria. The private inconvenience in such case must be suffered for the public accommodation. But the case at bar is not of that nature. It is a case of the use by. the railroad company of its property in such an unreasonable way as to disturb and annoy the plaintiff. ’ ’

In this ease there is no allegation that the railroad company had constructed or has operated its road in an unreasonable way, nor is there any evidence, other than that in regard to the side-track and coal chute above referred to, which tends to show an improper and unreasonable construction and operation of its road.

What Burski may be able to show under proper allegations as to the construction of this coal chute and side-track near his house, we can not say, but under the pleadings and evidence as presented in this record, we feel bound to hold that the judgment is not sustained by the evidence, and the judgment is therefore reversed and cause remanded for further proceedings.