text:
    ERROR — JUDGMENTS—RES ADJUDICATA.
    [Hamilton (1st) Circuit Court,
    March 7, 1908.]
    Swing, Giffen and Smith, JJ.

      Cyril Kehm v. German Mutual Insurance Co.
    Judgment on Demurrer to Merits of Cause of Action Res Adjudicata.
    Where the record shows that a demurrer to the petition was sustained by the trial court on the merits of the plaintiff’s cause of action, and this judgment was affirmed by the circuit court in the usual form as without error, the finality of the judgment cannot be changed by looking to the1 opinion of the circuit court judge where it appears that the affirmation was based on technical grounds.
    [Syllabus approved by the court.]
    Eeeoe to Hamilton common pleas court.
    Albert Bettinger, for plaintiff in error:
    Cited and commented upon the following authorities: United States v. Road Co. 110 Fed. Rep. 864; Moore v. Bunn, 41 Ohio St. 62; Barr v. Poox, 15 Dec. 217; Rafferty v. Traction Co. 25 O. C. C. 411, affirmed, no report, Toledo Trac. Co. v. Rafferty, 71 Ohio St. 497; Gould v. Railway, 91 U. S. 526 [23 L. Ed. 416]; Pepper v. Donnelly, 87 Ky. 259 [8 S. W. Kep. 441]; Griffin v. Seymour, 15 Iowa 30 [83 Am. Dec. 396] ; Northern Pac. Ry. v. Slaght, 205 U. S. 122 [27 Sup. Ct. Rep. 442; 51 L. Ed. 738] ; Gregory v. Woodworth, 107 la. 151 [77 N. W. Rep. 837]; Herman, Estoppel Sec. 92; 1 Freeman, Judgments 249, 483; Black, Judgments Sec. 527; Miller v. Bernicker, 46 Mo. 194; Ford
      v. Ford, 88 Wis. 122 [59 N. W. Rep. 464]; Stuart v. Heislcell, 86 Ya. 191 [9 S. E. Rep. 984]; Finch v. Eollinger, 46 la. 216; Bussell v. Bussell, 134 Fed. Rep. 840 [67 C. C. A. 436] ; Bussell v. Bussell, 129> Fed. Rep. 434.
    John R. Sayler, for defendant in error.

       Affirming Kehm v. Insurance Co. 18 Dec. 482.

   SWING, J.

This is an action in this court on error to the judgment of the-court of common pleas dismissing the petition of the plaintiff in error against the defendant in error.

Kehm brought his action in the court of common pleas on a policy of insurance held by him in the German Mutual Insurance Co.; in this-action he obtained a judgment. The insurance company prosecuted error to the circuit court, wherein the judgment was reversed and the-cause remanded for further proceedings.

After the case went back to the court of common pleas, plaintiff filed' an amended petition,- to which the insurance company filed a general demurrer, which general demurrer was sustained and plaintiff’s petition was-dismissed. Plaintiff prosecuted error to the circuit court, which court affirmed the judgment of the court of common pleas. Thereupon plaintiff' brought another action in the court of common pleas. The defendant filed: an answer to this petition in which it set out two defenses, one of which . was a plea in bar, setting up a former decision of the same court,between the same parties, in the same cause of action. To this defense the plaintiff filed a reply setting forth the opinions of the judges of the-court of common pleas and circuit court in deciding the questions in the former ease, as showing that the case was not determined on the merits and therefore was not a bar to a subsequent action. The defendant filed a motion for judgment on the pleadings and this motion was. granted and plaintiff’s petition dismissed. This is the judgment sought, to be reversed in this court.

The judgment in the first action between the parties was rendered in the court of common pleas| on a general demurrer to the- petition. It is admitted by counsel that the law on this question is correctly stated in Black, Judgments See. 707, as follows:

“There can be no doubt that a judgment rendered upon a demurrer is equally Conclusive by way of estoppel of the facts confessed by the demurrer, as would be a verdict and judgment finding the same facts. But a judgment on a demurrer based on merely formal and technical defects is no bar to a suit on an amended declaration correctly setting-forth a good cause of action.”

Again at Sec. 709, it is stated:

“In many of the states, especially those following the cod'e practice, .a statutory and much used ground of demurrer is: ‘that the complaint does not state facts sufficient to constitute a cause of action.’ A •decision upon a demurrer of this kind .is an adjudication upon the merits as far as the complaint goes, and is final and conclusive.”

The demurrer in the court of common pleas as shown by 'the record was on the merits of plaintiff’s cause of action. But this judgment of •the court of common pleas was affirmed in the circuit court, as shown by the opinion of the circuit court judge, which is brought into the record, on a technical ground, viz., that there was no consideration alleged in the petition although the judgment of affirmance was in the usual form simply finding that there was no error in the judgment. The record in this case contains the opinion of the judge of the court of common pleas sustaining the demurrer to the petition and it is admitted that it goes to the merits of the action and was not on technical ¡grounds. The opinion of the circuit court judge affirming this judgment was on the ground that no consideration was alleged in the amended ■petition, and it is admitted this is a technical ground, the opinion saying that the court found it unnecessary to pass on the other questions of the case. No error was prosecuted to the Supreme Court to reverse this judgment of affirmance.

The general principles of the law applicable to the question at bar ■seem to be well settled. If no error had been prosecuted to the judgment ■of the court of common pleas, the judgment of that court, on the demurrer would be final and a bar to this action. This judgment was affirmed by the circuit court, and we think the finality of the judgment was not changed by the fact that looking to the opinion of the court, outside of the record of that case, the circuit court based its affirmation on technical grounds. The circuit court might have been wrong in its conclusion and still the judgment have been right, and if the case had gone to the Supreme Court the question there would have been, not whether the reasons given by the circuit court in its opinion were right, but whether •on the record the judgment of affirmance was right. We think the judgment should be affirmed.

Smith and Giffen, JJ., concur.


source: Caselaw Access Project

author: SWING, J.

license: Public Domain

text:
    BROKERS AND FACTORS.
    [Hamilton (1st) Circuit Court,
    July 18, 1908.]
    Swing, Giffen and Smith, JJ.
    Haskins v. Lewis.
    Liability foe Bkokee’s Commission not Released feom by Refusal to Accept Okdeb and Pay Commission.
    Refusal of a principal to accept an order from his broker for the reason that there could he no profit on the sale, after payment of the broker’s commission, will not relieve the principal from liability for such commission upon his accepting the same contract direct from the customer, there being no evidence that the broker released his principal therefrom, and it appearing that the course of dealing between the principal . and broker was not terminated.
    [Syllabus approved by the court.]
    ERROR to Hamilton common pleas court.
    Roettinger & Gorman, for plaintiff in error.
    A. B. Benedict, for defendant in error.
   SWING, J.

This was an action for a brokerage commission by Lewis against Haskins on a certain glassware contract. There is little dispute as to the facts. The evidence is largely made up of correspondence between the parties. In brief, it shows that during the year 1904, Lewis was .a glass broker, doing business in Cincinnati, and Haskins was a glass manufacturer, doing business at Martins Ferry, Ohio. In the early part •of this year the parties commenced transacting business with each other, Lewis as broker ,and Haskins as manufacturer, and this relation continued during this year to the entire satisfaction of both parties, although it was claimed by Haskins that he had not made any money on •certain of the contracts, but it was not charged that this was by reason of any fault of Lewis as broker.

It appears that Haskins during this year had accepted through Lewis a contract to furnish certain goods to the Standard Oil Company. Haskins was not able to 'supply all the goods desired by the Standard Oil Company owing to the fact that his factory had not been fully equipped, but it appears from the correspondence that Haskins was desirous that Lewis should get for him the entire contract of the Standard Oil Company for the year 1905. This contract was very large, consisting of ten thousand barrels. This contract was to be let in the early part of January, 1905. On January 3, 1905, Lewis went to Wheeling, West Virginia, with this contract and met Haskins and' urged him to accept it. There is a conflict in the evidence as to what was said between the parties about this contract at this meeting, but we don’t regard a decision as to this conflict as determining the rights-of the parties in this action. Haskins said at this conference that he told Lewis that he had lost money on the Standard Oil contract for the year 1904, and that he would never sign the contract for the ten thousand barrels at the price named, to wit, $2.10 per barrel and pay Lewis a commission of 5 per cent, which was the amount of the commission that-the parties had agreed Lewis should receive in this business and which amount had been .paid him the year previous. Lewis denied that Haskins made such a statement. But disregarding this conflict it is. clear that at this meeting Haskins objected to entering into this contract at the price offered, and that Lewis urged its (acceptance.

Afterwards, on or before January 23, Haskins entered into the-contract with the Standard Oil Company for the ten thousand barrels-at the price named, to wit, $2.10 per barrel, for the year 1905. Lewis-demanded his commission of 5 per cent on this contract, which being-refused he brought this action and recovered in the court of common-pleas.

The answer of Haskins was a general denial and a further defense that he had notified Lewis that he would not accept this particular-contract through him, presumably for the reason which he says in his evidence, that he told Lewis on January 3 that he could not accept the-contract and pay him 5 per cent commission and come out whole. There is no evidence which tends to show that at the conference on January 3, 1905, the relation of broker and manufacturer had been broken off orterminated. Lewis still continued to urge Haskins to accept this contract and after Haskins had made the contract with the Standard Oil Company he, Haskins, still wanted to do other business-with Lewis. The reason given by Haskins for making the contract with the Standard Oil Company was that the low'prices did “not carry a profit justifying a commission” to Lewis. There being no controversy as to the facts, it becomes a question of law for the court.

Lewis during a course of business which existed between him and Haskins, as a broker, brings to Haskins a contract which Haskins accepts. Is Haskins liable to Lewis for the commission? On all other-contracts which Lewis had brought to Haskins he had paid Lewis commissions in accordance with their agreement. Why should he not pay this commission? Haskins’ reason why he is not liable is, that he told Lewis on January 3 that he would never enter into the contract and pay him a commission, and further that he wrote Lewis on January 23, after the contract was made, that he made the contract with the Standard Oil Company direct, for the reason that the profits would not justify a commission. There is no claim that Lewis agreed to release Haskins from the payment of the commission.

The decisions on brokerage commissions are mostly on real estate sales, but the principle seems equally applicable to all brokerage commissions. The principle applicable to such contracts is thus stated in Desmond v. Stebbins, 140 Mass. 339 [5 N. E. Rep. 150] :

“If the owner of land employs a broker to sell it for a stipulated •compensation, the broker is entitled to receive that sum, if in pursuance ,of his employment he substantially effects a sale by introducing to the owner a person to whom the owner sells the land.” ■

' In this ease, the facts are undisputed that Lewis furnished to Haskins a customer, to wit, the Standard Oil Company, with whom Haskins contracted on the terms of the proposition as submitted by Lewis; and on all such contracts it was agreed between Lewis and Haskins that Lewis should receive 5 per cent as a commission. It seems to us clear that Lewis should recover. The fact that Haskins said he told Lewis that he would not enter into the contract and pay him a ■commission, even if true, would not relieve him from his obligation to pay Lewis his commission, unless Lewis had agreed to it, and there is no claim made that Lewis ever assented to this.

The case of Neracker Sprinkling Co. v. Eureka Co. 4 Circ. Dec. 493 (8 R. 513), relied on by plaintiff in error, does not seem to us to be controlling in this case. The facts in that case differ materially from those in this case. When the contract was made in that ease the Eureka Company was no longer the agent of the other company, while in this ease the contract was entered into while the relation of broker still existed.

The facts being admitted, the case became one for the court, and if the judgment is correct, and we think it is, errors in the charge of the court to the jury, if any, are immaterial.

Judgment affirmed.

Giffen and Smith, JJ., concur.


author: TAGGART, J.

text:
    GIFTS — TRUSTS.
    [Fairfield (5th) Circuit Court,
    September Term, 1907.]
    Taggart and Donahue, JJ.
    (McCarty, J., not sitting.)
    Charles E. Fisher v. Adam Fisher et al.
    Advancement to Son-in-law of Interest of Daughter in which She Acquiesces ' not a Trust.
    A gift of a tract of land by the donor to a son-in-law and payment of part ' of the purchase price of another tract, the son-in-law and daughter of the . donor both uniting in a receipt of the property by way of advancement, constitute neither an implied trust nor a resulting one but an advancement to his son-in-law of the daughter’s interest with her acquiescence.
    [For other cases in point, see 4 Cye. Dig., “Gifts,” §§ 32-43; 7 Cyc. Dig., “Trusts and Trustees,” §§ 37-43.- — Ed.]
    [Syllabus approved by the court.]
    Error to Fairfield common pleas court.
    C. W. McCleery and A. W. Clutch, for plaintiff in error.
    M. A. Daugherty and W. K. Martin, for defendants in error.
   TAGGART, J.

This is a proceeding in error prosecuted in this court to reverse the judgment of the court of common pleas. The question arises on a demurrer to the first and second causes of action in plaintiff’s petition and concretely stated it is this:. Does the giving by a father to a son-in-law of a tract of land and payment by the father to the son-in-law of a part of the purchase price of another tract of land, and the son-in-law and daughter uniting in a receipt of the property by way of advancement constitute an implied trust or a resulting trust under the law. The averments of the first and second causes of action are simply the relationship of the parties and that the father conveyed to the son-in-law one tract of land and paid part of the purchase price of another tract of land, and that thereupon the daughter and son-in-law executed a receipt acknowledging getting this property by way of advancement, and it is claimed that out of this transaction alone, an implied trust or. resulting' trust arose. It is distinctly averred that the bestowal of this property by the father upon the son-in-law was by way of an advancement to the daughter and the receipt was given as an advancement.

This cannot be an advancement and at the same time either a resulting trust or an implied trust. The two are at variance with each other and a brief analysis of what constitutes an advancement negatives the idea of a trust. Roekel, Probate Practice, Sec. 929, defines ah advancement as follows:

“An advancement is a gift by a person to a presumptive heir of certain property with the intention that the value of such property shall be deducted from the portion that such presumptive heir would otherwise be entitled to receive out of such person’s estate after such person was deceased.” * * *
“The gift in order to constitute an advancement must be irrevocable, divesting entirely all the ancestor’s interest, and forming no part of the property to be administered; hence the donee can in no case be compelled to refund what he has received. ’ ’

The author further goes on and discusses the character of an advancement, that it is a gift and cannot be changed to a debt. It is not intended that it should ever be refunded or repaid by the donee. The gift is to an heir presumptive, or one standing in the nature of an heir or one who is entitled to inherit.

That being the ease the question arises: Can there be an advancement to a son-in-law? This question has been settled in the case of Dittoe v. Cluney, 22 Ohio St. 436.

“A gift to a son-in-law, intended by the ancestor to be charged as an advancement against his daughter, and not subsequently converted by him into a gift absolute, will be so charged against her in the distribution of his intestate property, if she, knowing the fact and intention of the gift, shall have acquiesced therein.”

So that there can be an advancement to a son-in-law with the knowledge and consent of the daughter, and after that appears, it is then an advancement to the daughter.

Let us look briefly to a definition of an implied trust. Perry, Trusts, says:

“Implied trusts are those that arise when trusts are not directly or expressly declared in terms, but the courts from the whole transaction and the words used, imply or infer that it was the intention of the parties to create a trust.”

So we must gather from the transaction whether it was the intention of the parties to create a trust, because there is no express trust in this ease insisted upon.

“An implied trust arises, where upon the purchase of property, the conveyance of the legal title is taken in the name of one person, while the consideration or a part of it is given or paid by another, not in the way of a loan to the grantee, the parties being strangers to each other, a resulting trust immediately arises from the transaction, and .the person named in the conveyance will be a trustee for the party from whom the consideration proceeds.”

So we see the distinguishing feature in those two transactions. In both instances the intention of the parties must govern. If it was the intention that there was to be an implied trust, that must be gathered from the transaction. If it was the intention to be an advancement, that must be inferred from the intention of the donor and the acts and intention of the donee.

Looking to this transaction and the averments of the petition there is only the averment that this was an advancement, in which event it was an irrevocable gift, the donees were never called upon to account for any payment of this sum except in the distribution of the estate. If they were donees they could not be called upon in any other way for an accounting. If the daughter was the donee of this gift and the .son-in-law was a participant in the reception'of the gift, he certainly ■could not be called upon to account for the principal or for any interest in the proceeds of that gift. There would be no control over this transaction except as the representative of the donor would account for it in the administration of the estate.

Another test — If she is the donee of this gift she could hardly insist that she was the cestui que trust of which her husband was the principal trustee; that could hardly be claimed.

Now we have Thompson v. Thompson, 18 Ohio St. 73, holding distinctly that no such trust is either implied or results therefrom, Stump v. Stump, 26 Ohio St. 169, holding similarly. It is claimed that the case of Stayner v. Bower, 42 Ohio St. 314, is contrary to this doctrine, but we think there is a very distinguishing feature which differentiates it from the other cases cited. In that case the daughter did not consent or in anywise acquiesce in the bestowal of the money upon her husband. ‘The father bestowed it upon the son-in-law as an advancement intending to charge it against the daughter’s estate; she not acquiescing therein, it could not be said to be an advancement to her, nor chargeable out of her share in her father’s estate. It was not strictly speaking an advancement, but it was in the nature of property bestowed upon the ison-in-law for her benefit and use, for which she would be entitled to recover against her husband. There was no acquiescence on the part of the donee that the transaction should constitute an advancement .■against her.

In the case at bar there was the intention of the donor to give, and there was an acquiescence of the donee in the nature of an advancement to which there was to be no recovery of the principal or of the rents and profits, and no accounting except in tbe manner provided in the distribution of the estate.

So we think that in this case, after careful review of all the authorities and on principle', the demurrer to the first and second causes of action were properly sustained. We find that the court committed no error in dismissing the first and second causes of action and the others being contingent upon them and the parties not desiring to plead further, we find no error in the record and the judgment of the lower .court will be affirmed with costs.

Donahue, J., concurs.


author: GIFFEN, J.

text:
    EXECUTORS AND ADMINISTRATORS — WILLS.
    [Hamilton (1st) Circuit Court,
    June 22, 1907.]
    Swing, Giffen and Smith, JJ.
    Anna C. Gogreve v. Elizabeth Day.
    1. Devise for Life with Power to Sell.
    The devise of real estate in this case was for life only, with power to sell for the benefit of the estate.
    [For other cases in point, see 7 Cyc. Dig., “Wills,” §§ 825-828. — Ed.]
    2. Promise by Testator of Reimbursement for Services.
    Where long and faithful service by the plaintiff was acknowledged by the decedent, who exacted a promise that these services should be continued to his wife after his- death, with the direction that the wife make suitable provision for the services rendered and to be rendered, a binding contract is made and a debt created against the estate for services performed after as well as before the death of the decedent.
    [For other cases in point, see 7 Cyc. Dig., “Wills,” §§ 60-63. — Ed.]
    H. Presentation of Claims to Executor.
    A conveyance under such circumstances by the widow to the plaintiff, of. property forming no more than an adequate consideration for the services rendered, is a conveyance for the benefit of the estate, and plaintiff is entitled to a decree quieting her title to said property,- notwithstanding she had never presented her claim to the executor who had knowledge of its existence.
    [For other cases in point, see 4 Cyc. Dig., “Executors and Administrators,” .§§ 672-685. — Ed.]
    Error to Hamilton common pleas court.
    Chris. Yon Seggern and Burch & Johnson, for plaintiff.
    C. J. Fitzgerald, Henry Baer and Powell & Smiley, for defendant.:
    Cited and commented upon the following authorities: Jones v. Lloyd, 33 Ohio St. 572; Busing■ v. Busing, 25 Ind. 63; Lord v. Bourne,
      63 Me. .368 [18 Am. Rép. 234]y Goodwin v. Goodwin, 33 Conn. 314 ;. Phet V. Railway, 70 Tes.- 522 [8 S. W. Rep. 203]; Weston v. Weston, 38 Ohio St. 473; 1 Jarman, Wills 451; 1 Redfield, Wills 454, See. 33; Williamson, In re, 8 Dee. 47 (6 N. P. 79); Robison v. Orphan Asylum, 123 U. S. 702 [8 Sup. Ct. Rep. 327; 31 L. Ed. 293]; Metcalf v. Framing-ham Parish, 128 Mass. 370; 1 Redfield, Wills 467, Sub. 17, Sec. 33; Carter v. Reddish, 32 Ohio St. i; Charch v. Charch, 57 Ohio St. 561 [49' N. E. Rep. 408]; Cassidy v. Rynton, 44 Ohio St. 530 [9 N. E. Rep. 129]; Collins v. Collins, 40 Ohio St. 353; Gillen v. Kimball, 34 Ohio St. 352; Linton v. Lay cock, 33 Ohio St. 128; Richey v. Johnson, 30 Ohio St. 288; American Tract Soc. v. Atwater, 30 Ohio St. 77 [27 Am. Rep. 422] ; Baxter v. Bowyer, 19 Ohio St. 490Sinton v. Boyd, 19 Ohio St. 30 [2 Am.'Rep. 369]; King v. Beck, 15 Ohio 559; Naylor v. Loomis, 6 Circ. Dee. 41 (9 R. 96) ; Relfferich v. Relfferich, 11 Dec. Re. 303 (26 Bull. 83) ; Widows Rome v. Lippardt, 70 Ohio St. 261 [71 N. E. Rep. 770]; Johnso.n v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61] ; Ruston v. Craighead, 23 Ohio St. 208; dagger v. Davidson, 45 Minn. 424 [48 N. W. Rep. 10]; Perry, Trusts Sec. 540.
   GIFFEN, J.

This action was commenced to. quiet- title to certain real estate conveyed to plaintiff by Christina Behrens, widow of Frederick Behrens, who died testate. His last will and testament contained the following-provisions, after giving all of the personal property to his wife:

“Item 3. I give, devise and bequeath to my beloved wife, Christina Behrens, all the real estate of which I may die seized and possessed of, or to which I may be entitled at the time of my death, she to have, hold and enjoy the same for and during her natural life; and I hereby authorize and empower my said wife to sell any and all of my real estate, with the exception of the house and lot known as number twenty-one (21) Woodward street, Cincinnati, Hamilton county, Ohio, and to convey the same by a good and sufficient deed in fee simple and the purchaser shall not be required to look to the application of the purchase money.”

Items 5 and 6 give certain charitable bequests to be paid in money after his wife’s death.

“Item 7. All the rest and residue and remainder of my estate.I give, devise and bequeath to my heirs at law, according to the laws of descent and distribution of the state of Ohio.”

Reid: The wife took a life estate only in the real estate, with power to sell the same for the benefit of- the estate. Jones v. Lloyd, 33 Ohio St. 572; Baxter v. Bowyer, 19 Ohio St. 490; Huston v. Craighead, 23 Ohio St. 198, 208.

The plaintiff, though not adopted, lived: with the testator and his wife as their child, performing during the best period of her life, from the age of eighteen till about forty-eight years, not only every sort of menial service, but her filial duty toward them.

The testator, a short time before his death, recognized and acknowledged his indebtedness to her for such service, and exacted a promise from her to perform a like service for his wife after his death, and directed his wife to make a suitable provision for the plaintiff on account of services rendered and to be rendered. This constituted a binding contract between them and upon performance by the plaintiff of the services required, created a debt against the estate for services performed after the death of the testator, as well as those before.

That the services performed during a period of nearly thirty years were an adequate consideration for the real estate conveyed is fully supported by the testimony; hence the power of sale was duly executed for the benefit of the estate. The fact that no claim was presented by the plaintiff to the executor is of little moment, as the object of the law in requiring the presentation of claims against an estate is to apprise the executor or administrator of their existence, amount and character, which in this case were already known. Cheeseman v. Kyle, 15 Ohio St. 15, at 20 and 21.

The plaintiff is therefore entitled to the relief prayed for and a like decree to that entered in the court of common pleas may be entered in this court. ,

Swing and Smith, JJ,, concur,


text:
    INSURANCE — PLEADING—TRIAL.
    [Hamilton (1st) Circuit Court,
    May 11, 1907.]
    Swing, GifEen and Smith, JJ.
    Preferred Masonic Mut. Acc. Assn. v. M. J. Harrington.
    .1. Amendment op Petition after Verdict.
    Amendment of the petition after verdict in favor of plaintiff setting up waiver of the conditions of an accident policy as to prepayment of premiums may properly he permitted under Sec. 5114 Rev. Stat., where it appears that trial was had in part upon that theory.
    [For other cases in point, see 6 Cyc. Dig., “Pleading,” §§ 1082-1091. — Ed.]
    '2. Receipt por Insurance Premium being Produced Dispenses with Question of Waiver of Prepayment Condition.
    Production of the receipt of an insurance association for the last quarter is prima facie evidence of payment, and in the absence of any explanation entitles the insured- to a recovery on the policy regardless of any ques-v tion of waiver of the condition thereof requiring prepayment of premiums.
    :3. Unidentified Deposition not Considered as Part of Bui of Exceptions.
    A deposition not identified by any mark as to the deposition offered in evidence on the trial, cannot' be considered as part of the bill of exceptions.
    ■4. Necessity of Exception to Failure of Jury to Answer Interrogatories. Failure of a jury to answer certain special interrogatories, not being excepted to until after verdict and jury discharged is not available on error.
    .Ereor to Hamilton common pleas court.
    F. T. Lodge, Boyce & Boyd and M. C. Slutes, for plaintiff in -error:
    Cited and commented upon the following authorities: Eureka Fire <& Mar. Ins. Go. v. Baldwin, 62 Ohio St. 368 [57 N. E. Rep. 57]; Balt. & 0. By. v. McPeek, 8 Circ. Dec. 742 (16 R. 87) ; Schweinfurth v. Bailway, 39 Bull. 303; Glev. G. G. & St. L. By. v. St. Bernard, 10 Circ. Dec. 415 (19 R. 299) ; Wilson v. Bailway, 57 Mich. 155 [23 N. W. Rep. 627] ; Meyers v. Insurance Co. 7 Dec. 573 (6 N. P. 34) ; Fidelity Mut. Life Ins. Go. v. Troy, 10 Circ. Dec. 761 (20 R. 644) ; Ohio Farmers Ins. Go. v. Wilson, 70 Ohio St. 354 [71 N. E. Rep. 715]; Union Mut. Life Ins. Go. v. McMiUen, 24 Ohio St. 67; Union Gent. Life Ins. Co. v. Book, 62 Ohio St. 256 [56 N. E. Rep. 906]; Bobert v. Insurance Co. 12 Dec. Re. 668 (1 Disn. 355) ; Bobert v. Insurance Co. 13 Dec. Re. 66 (2 Disn. 106) ; Union Gent. Life Ins. Co. v: Buxer, 62 Ohio St. 385 [57 N. E. Rep. 66; 49 L. R. A. 737] ; Jander v. Insurance Co. 9 Circ. Dec. 462 (16 R. 536); Travellers Ins. Co. v. Myers, 62 Ohio St. 529 [57 N. E. Rep. 458; 49 L. R. A. 760]; Stark Co. Mut. Life Ins. Co. v. Hurd, 19' Ohio 149; Billings v. Insurance Co. 14 Dec. 387; Metropolitan Life Ins. Co. v. Walton,' 25 O. C. C. 587; Mutual Reserve Fund Life Assn., v. Finnigan, 74 Ohio St. 504 [78 N. E. Rep. 1133],
    M. G. Heintz, for defendant in error:
    Cited and commented upon the following authorities: Knickerbocker Fife Ins. Co. v. Norton, 96 U. S. 234 [24 L. Ed. 689]; Phoenix Mut. Life Ins. Co. v. Dosier, 106 U. S. 30 [1 Sup. Ct. Rep. 18; 27 L. Ed. 65]; Viele v. Insurance Co. 26 Iowa 9 [96 Am. Dec.' 83] ; Elmer v. Life Assn. 64 Hun 639 [19 N. Y. Supp. 289]; McGowan v. Legion of Honor, 98 Iowa 118 [67 N. "W. Rep. 89]; Metropolitan Safety Fund Acc. Assn. v. Windover, 137 Ill. 417 [27 N. E. Rep. 538]; Farnum v. Insurance Co. 83 Cal. 246 [23 Pac. Rep. 869; 17 Am. Dec. 233]; Chicago Life Ins. Co. v. Warner, 80 Ill. 410; Osterloh v. Insurance Co. 60 Wis. 126 [18 N. W. Rep. 749]; Hopkins v. Insurance Co. 43 U. C. Q. B. 254;. Cooley’s Briefs on Insurance 2473-2497; Ohio Farmers Ins. Co. v. Burget, 9 Circ. Dec. 369 (17 R. 619) ; Kelly v. Insurance Co. 106 App. Div. 352 [94 N. Y. Supp. 601]; Beatty v. Life Assn. 75 Fed. Rep. 65' [21 C. C. A. 227] ; Union Mut. Life Ins. Co. v. McMillen, 24 Ohio St. 67; Aetna Life Ins. Co. v. Frierson, 114 Fed. Rep. 56 [51 C. C. A. 424];. New York Life Ins. Co. v. Baker, 83’ Fed. Rep. 647 [27 C. C. A. 658]; Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Mutual Reserve Fund Life Assn. v. Woolen Mills, 82 Fed. Rep. 508 [27 C. C. A. 212] • Mutual Life Ins. Co. v. French, 30 Ohio St. 240 [27 Am. Rep. 443] ; May, Insurance Secs. 56, 60; Hartford Protective Ins. Co. v. Harmer, 2 Ohio St. 452 [59 Am. Dec. 684]; Ohio Farmers Ins. Co. v. Danison, 1 O. S. C. D. 653 (38 Bull. 163) ; Despatch Line v. Glenny, 41 Ohio St. 166; Legg v. Drake, 1 Ohio St. 286.
   GIFFEN, J.

This action was founded upon a policy of accident insurance. The plaintiff in her petition alleged full performance of all its conditions. The answer contains a general denial of such performance, and an averment that the last quarterly payment due before the accident was not paid, and that by the terms of the policy it thereby lapsed and became void and of no effect.

After verdict for plaintiff the court permitted plaintiff to file an amended petition, setting up a waiver of the condition of the policy requiring prepayment of the quarterly premium due January 30, 1903. The ease was tried partly upon this theory, and there was no error in permitting the amendment. Section 5114 Rev. Stat.

The production of the receipt of the association for the quarterly •premium was prima facie evidence of payment, and in the absence of any explanation entitled the plaintiff to a verdict without regard to any question of waiver. Neil v. Hepburn, 6 Ohio 534.

The deposition of the witness, Warner, attached to the bill of exceptions is not identified by any mark as the deposition offered in evidence, and hence cannot be considered as a part of the bill, nor will the court consider the alleged errors that the verdict is not sustained by sufficient evidence, and that the court refused to instruct the jury to return a verdict for the defendant. Lake Erie & W. Ry. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640].

Such of the numerous special instructions requested by the defendant as were refused had either already been substantially given to ■the jury, or were afterwards embraced in the general charge, or were inapplicable to the case as presented by the record.

The failure of the jury to answer the three special interrogatories was not excepted to until after the jury was discharged, and will not avail as a ground of error.

We find no prejudicial error in the record and the judgment will be affirmed.

Swing and Smith, JJ., concur.


author: COOK, J.

text:
    ADVERSE POSSESSION — LIMITATION OF ACTIONS — QUIET TITLE.
    [Monroe (7th) Circuit Court,
    November Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    Cyrus A. Ward v. George Washington Ward et al.
    'Title Quieted of Grantee m Occupation- eor Twenty-one Years under Quitclaim Deed of Tenant in Common Conveying Inheritable Interest of Grantor’s Brother not then Dead.
    Y/here a tenant in common releases for a valuable consideration to a co-tenant by quitclaim deed, all his right, title and interest in certain land therein described, expressly including the interest inherited by him from a brother, then believed to be dead; and where also the grantee goes into actual possession of the land upon which he and his heirs make ■ , valuable improvements and continue in peaceable possession thereof for more than twenty-one years; such grantee and his heirs acquire a good title to such interest as against the grantor and his heirs although the brother was not dead at the time of the execution of the deed of release.
    [Syllabus approved by the court.]
    Mallory, Jeffers & Sears, for plaintiff.
    Tallman & Spriggs, G. G. Jennings and W. V. Walton, for defendants'-.
   COOK, J.

Moses Ward-, the grandfather of plaintiff, Cyrus A. Ward, died intestate May 25, 1861, leaving eight children his heirs at law two of whom were named Seth and Stephen. There was another son by the name of •George Washington Ward. George Washington, then a young man unmarried, left home some time in 1854 to 1856 and has not been heard of since. At the time of his death Moses Ward was the owner of a farm in this county.' On April 16, 1862, Seth Ward purchased the interest of his brother, Stephen, in the farm as he also did from all the other six of his brothers and sisters taking separate quitclaim deeds from each, similar in form. The purchase price and consideration expressed in the deed of •Stephen was $400 which was its fair value. The deed to Seth from Stephen contained this clause: “And this instrument it is understood and agreed conveys any interest that he may have of George Washington Ward’s whom it is believed is dead.” The language in the petition is “presumed to be dead,” instead of “believed is dead;” but that is immaterial.

Seth Ward immediately upon securing these deeds in 1862 went into ■the actual possession of the farm and made valuable improvements upon the same and he and his children have been in the possession of the same-ever since. In 1906, forty-four years after the making of the deed, some-of the heirs of Stephen Ward gave out in divers conversations that they were entitled to an interest in said farm as nephews of George Washington Ward for the reason that their father, who was deceased, had no-power to convey to his brother, Seth'Ward, by quitclaim deed the interest of George Washington Ward; the deed being made before the expiration of seven years from the date of the departure of George Washington Ward; Stephen Ward then having but a mere possibility which was not. the subject of release. 4 Kent’s Commentaries 206.

Cyrus A. Ward, a son of Seth Ward who was then principally interested in the farm, upon hearing of this claim of the heirs of Stephen Ward commenced an action against George Washington Ward and all parties, claiming under Moses Ward, the grandfather of plaintiff and defendants, and under George Washington Ward, to quiet his title.

Plaintiff in his petition and the contesting defendants in their answer all aver that George Washington Ward had not been heard of for nearly fifty years and was presumed to be dead. George Washington Ward was sought to be brought .into court by service of summons by publication but this could not be done and no decree can'be taken against him as all the-parties rely upon his death before the commencement of the action. Youngs v. Heffner, 36 Ohio St. 232. Judge Boynton on page 237 says:

“The plaintiff was not, and from the nature of the case could not have been, a party to the proceedings for partition instituted by two of' his brothers in 1863, as those proceedings and rights therein asserted, were founded, and for their validity depended, on the assumption of his death. The- alleged title or interest of his brothers and sister, which was purchased by defendant Heffner, rested wholly on the presumption that the plaintiff was dead, such presumption being founded on the fact that, the plaintiff had been absent and unheard of, for the period of seven years. ’ ’

This disposes of the ease as to George Washington Ward. His absence is only prima facie evidence of his death and upon it being shown that he is alive his rights in the property may be asserted at any time.

In the case referred to it is held, page 232:

“The presumption of death which arises from the absence of one-from his home for the period of seven years, and who in the meantime is not heard of, is but prima- fade evidence of the fact, and may be rebutted by counter proof.” The only question, therefore, is between the plaintiff, the son of Seth Ward and the contesting defendants, the sons; of Stephen Ward.

The claim of defendants is that at the time Seth bought the interest of Stephen, and the quitclaim deed was executed, George Washington Ward had not been gone from his home and unheard of for seven years, and that therefore, as beforesaid, the interest of Stephen was a naked or remote possibility and not the subject of release. Much reliance is placed upon the ease of Needles v. Needles, 7 Ohio St. 432, but we do not think that case is applicable to this case. In that case the son simply gave a receipt in consideration of an advancement made by the father that the advancement was to be in full of all claims he might have against his father’s estate after' his death as one of his heirs, and it was held that such agreement imposed no obligation for the obvious reason, that an executory contract could not be made to control the distribution of the father’s estate after his death.

This case is entirely different. Stephen sold to Seth for a valuable consideration all the interest he might have of “George Washington Ward, who is presumed to be dead.” Stephen claimed to be the owner of the interest of George Washington Ward and so sold it and gave a deed for such interest practically setting forth that he was the owner of the interest.

True it was a quitclaim deed containing no covenants; simply a deed of release; but we think that makes no difference, and that by such sale- and deed Stephen and those claiming under him are now estopped from making any claim to such interest as against the heirs of Seth. Such we understand to be the holding in .the case of Magruder v. Esmay, 35 Ohio St. 221. It is there held:

“A patent issued by the United States, in the name of one who had purchased the land, and made entry under the act of congress of April 24, 1820 (3 U. S. Stat. at L. 556), inures to the benefit of the grantee and his heirs and assigns, under a quitclaim deed executed by the purchaser before the patent issued. The patent being founded on such entry, relates back, and takes effect from the time the same was made. ’ ’

In the opinion it is said (p. 230) .-

“The plaintiff having succeeded to the title of Mrs. Farrell, and a legal estate being essential to the maintenance of the action, the question at once presents itself, whether the patent to Porter so far, inured to the benefit of Mrs. Farrell as to vest in her a legal estate. Had the deed to Arnet been with warranty of title, there is no doubt, that on the receipt by Porter of the patent from the government, an estoppel would have •arisen in favor of Mrs. Farrell. Nor is there any'doubt that a party is estopped from denying the operation of a deed, according to its intent, where, either by recital, admission, covenant, or otherwise, it appears that a certain estate was intended to be conveyed. Rawle on Covenants for Title 338: Shepard’s Touchstone 82.”

In the case of Van Rensselaer v. Kearney, 52 U. S. (11 How.) 297, 325 it is said:

“If the seisin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seized and possessed at the time he made the conveyance. The estoppel works upon the estate and binds an after-acquired title as between parties and privity.”

We are not so sure from the evidence that George Washington Ward was known to be alive within seven years from the execution of the deed by Stephen to Seth: indeed we are of opinion that the strong tendency, of the evidence is the other way; but whatever the evidence may show upon this question as we have seen makes no difference.

Again is not the bar of the statute of limitations conclusive? The •claim of defendants is that as these parties are all tenants in common the statute of limitations has no effect. This claim is not well founded in this case. If Seth were living he would have a right to rely on the bar of the statute, and his children have the same right. The deed was made in 1862 and Seth went into possession under the deed and made valuable improvements and paid taxes on the entire interest. This was an assertion of an independent absolute title under the deed as against Stephen and indeed against all the heirs of the grandfather as he obtained like deeds from all of them. These deeds were placed upon record. It was. •a direct assertion of entire title and a public proclamation to all persons that he was such owner. He took the property under color of title at least; he went into possession under such title and he and his heirs continued in such possession openly and adversely as against these claimed tenants in common for more than forty years. Taken altogether it was ‘1 an overt and notorious act of an unequivocal character, clearly indicating an assertion of ownership of the entire premises to the exclusion of the right of the cotenant.” Youngs v. Heffner, supra, 236.

Judgment in favor of plaintiff quieting his title at costs of contesting -defendants and same judgment may be entered in favor of defendants on their cross petition who are making the same claim as plaintiff.

Burrows and Laubie, JJ., concur.


text:
    MINES AND MINING — TAXATION.
    [Harrison (7th) Circuit Court,
    May Term, 1908.]
    Burrows, Laubie and Cook, JJ.
    F. E. Johnson v. J. S. Lacey, Aud., and A. W. Cole et al. Comrs.
    1. APPORTIONMENT OP VALUATION BETWEEN OWNER OP SURFACE AND OWNER OF Coal, when Coal Conveyed after Decennial Appraisement.
    Where coal is sold and conveyed after the regular decennial appraisement, it is the duty of the county board of equalization under Sec. 2792-a Rev. Stat., passed April 23, 1904 (97 O. L. 294), upon application by the owner of the surface to equitably apportion the said valuation between the owner of the surface and the owner of the coal according to the relative value of their respective interests.

      2. Decennial Valuation not Reduced upon Sale and Removal op Timber.
    The sale and removal of timber from land does not entitle the owner of the land to any reduction of the decennial appraisement under Sec. 2753 Rev. Stat.
    [Syllabus approved by the court.]
    Appeal from Harrison common pleas eonrt.
    Hollingsworth & Worley, for plaintiff:
    Cited and commented upon the following authorities: Jones v. Wood, 6 Cire. Dec. 538 (9 R. 560) ; Cincinnati College v. Yeatman, 30 Ohio St. 276; Sheldon v. Coates, 10 Ohio 278; Kellogg v. McLaughlin, 8 Ohio 114; Magruder v. Esmay, 35 Ohio St. 221; Ward v. Barrows, 2 Ohio St. 241, 246: State v. Baine, 47 Ohio St. 447 [25 N. E. Rep. 54] ; Black v. Hagerty, 9 Cire. Dec. 93 (16 R. 255); Gager v. Prout, 48 Ohio St. 89 [26 N. E. Rep. 1013]; Hagerty v. Huddleson, 60 Ohio St. 149 [53 N. E. Rep. 960] ; Mitchell v. Franklin Co. (Treas.) 25 Ohio St. 143.
    E. S. McNamee and Perry & Rowland, for defendants.
   COOK, J.

This action is before ns on appeal. Plaintiff, T. E. Johnson, is the owner of a large farm in this county and was such owner at the time of the decennial appraisement in 1900. The farm consists of tillable land, woodland, and buildings; and is underlaid with a valuable vein of coal. The tillable land, woodland and buildings were appraised separately; nothing being said by the appraiser in his return about the coal. In the trial before the common pleas court, the evidence in which case is by consent used as the evidence before us, the decennial appraiser testified that the coal was not taken into consideration in the appraisement.

Johnson paid for the farm $14,000, but a short time before the ap-praisement, and it was appraised at $8,800.

January 80, 1903, Johnson sold the coal underlying the farm for the sum of $4,320; the consideration mentioned in the deed being $1. The auditor placed the coal upon the tax duplicate at $4,320, against the purchaser, claiming that the company purchasing it had failed to list it for taxation.

Sometime after the sale of the coal Johnson cut the timber off the land and sold it for about $4,000. After the sale of the coal and timber, Johnson made application to the auditor, under Sec. 1025 Rev. Stat., to-deduct from the appraisement of his land the amount which had been placed upon the tax duplicate against the purchaser of the coal to wit: $4,320. This, the auditor refused to do. In refusing to make the deduction under this section, we think the auditor acted right. No proof was made by Johnson as to the actual value of the coal as compared with the valuation of the whole farm as required by the section. Dye v. State, 73 Ohio St. 231 [76 N. E. Rep. 829].

Furthermore, we are fully persuaded that Sec. 1025 Rev. Stat. does not apply to eases of this character, but only to cases where there has been a separation by sale, or otherwise, of the surface of the land. That would seem to be so from the plain reading of the statute: “A part only of any tract or lot. ’ ’ This would hardly include the severance of the coal or other mineral from the surface.

In Dye v. State, supra, page 237, it is said:

“It may be seriously doubted whether this statute authorized the severance of the surface of the land from the coal or other mineral embedded beneath it, so as to transfer the latter to a purchaser, leaving the other parts of the land to stand in the name of the vendor. ’ ’

Johnson then, made application to the county board of equalization at its annual meeting to apportion the valuation of his farm as made at the preceding decennial appraisement between him and the purchaser of the coal. This, the county board of equalization refused to do. Johnson also made application to the auditor to deduct the value of the timber,' which he had cut oft the farm and sold, or an equitable part thereof, from the value as fixed at the decennial appraisement. This, the auditor refused to do. He then brought a suit in the court of common pleas against the auditor and the commissioners as the county board of equalization to enjoin the auditor from continuing upon the tax duplicate the full amount of the decennial appraisement of his farm, and to require the auditor to deduct from the same $4,320, the value of the coal sold; and also the sum of $4,000, the value of the timber which he cut off the farm.

The court of common pleas refused to deduct the value of the coal ■sold, or any part of the same, but allowed the claim for the timber cut off and sold, set up in the second cause of action, and enjoined the auditor from continuing on the tax duplicate the full amount of the decennial appraisement and ordered him to deduct the value of the timber cut from the farm.

As to the claim made in the first cause of action we see no reason why an injunction should not be allowed prohibiting the auditor from •continuing on the tax duplicate the equitable value of the coal sold according to the relative value of the coal with the surface. This is the plain provision of Sec. 2792-a Rev. Stat., passed April 23, 1904 (97 O. L. 294), and we do not understand why the common pleas court decided otherwise.

As to the claim set up in the second cause of action it is clearly untenable. Plaintiff relies on Sec. 2753 Rev. Stat. This section has no-application to cases where the owner voluntarily cuts off timber and sells it. That section applies to eases of “destruction by fire, flood, cyclone, storm or otherwise of any structure of any kind, or of orchards, timber, •ornamental trees, or groves over $100.”

Webster defines destruction as: “The act of destroying, tearing down, subversion, demolition, ruin.” Plaintiff’s claim in his first cause of action will be allowed, and in his second cause of action will be refused. It does not, however, follow that Johnson should be allowed the full amount of $4,320, as a reduction of the appraised value of his farm for taxation at the decennial appraisement but only an equitable division; and the county board of equalization should .make such equitable division at its next annual meeting. Until such division is made by the •county board of equalization, the auditor is enjoined from the continuing •on the tax duplicate of any greater sum than the amount of the decennial appraisement less the sum of $4,320.

The second cause of action of plaintiff’s petition will be dismissed. The costs will be equally divided between plaintiff and defendants.

Burrows and Laubie, JJ„ concur,


text:
    COUNTY AUDITOR — MANDAMUS—TAXES.
    [Hamilton (1st) Circuit Court,
    January 4, 1908.]
    Swing, Giffen and Smith, JJ.
    State ex rel. Eugene L. Lewis v. Charles C. Richardson, Aud. et al.
    DISTRIBUTION OF TAXES FOE COLLECTION PEES NOT COMPELLABLE UNTIL ASCERTAINMENT of Amount Collected.
    Distribution' of a special tax levied by the several school boards of the county to provide compensation for services by the county auditor under Sec. 1069 Rev. Stat., cannot be compelled by mandamus until after the amount collected has been ascertained at the semi-annual settlements. ■
    [Syllabus approved by the court.]
    Mandamus.
    Thorndyke & Capelle, for relator.
    Ireton, Collins, Schoenle & Poor, contra'.
   SWING, J.

Certain levies were made by tbe several school boards of the county to pay certain fees, which, properly belonged to Lewis, auditor of Hamilton county, and are now in process of collection. Lewis seeks by mandamus to have the same paid now, the December taxes having been paid. The petition should not prevail at the present time. Upon settlement between auditor and treasurer the amount collected on the levy made for this purpose should be paid to Lewis on the warrant of the auditor drawn on the treasurer. The only fund available for the payment of this amount is what is collected by taxation, and when collected, and not until then, it should be paid as above stated, and the amount cannot be-ascertained until the semi-annual settlements as provided in Sec. 1069' Bev. Stat.

The action is premature.

Giffen and Smith, JJ., concur.


text:
    EQUITY — MUNICIPAL CORPORATIONS.
    [Jefferson (7th) Circuit Court,
    May Term, 1908.]
    Burrows, Laubie and Cook, JJ.
    Harry Walker, et al. v. Dillonvale ex rel. Thomas McCabe.

      1. Compensation Received by Councilmen Pbioe to Passage op Obdinance may be Recovered Back.
    Councilmen of a municipality are not entitled to receive compensation for their services until the same is authorized by ordinance, and money received by them therefor prior to the passage of such ordinance may be recovered back in a proper action.
    2. Equity Supplies Remedy, in Absence op Statute, to Recover Back Money Illegally Paid to Councilmen.
    Where there is no statute providing for recovering back money so paid to councilmlen, a suit in equity may be prosecuted for that purpose by any taxpayer on behalf of the municipality or on behalf of himself, and other taxpayers, and in such suit all the councilmen so illegally receiving money may be joined in one action to prevent a multiplicity of suits.
    [Syllabus approved by the court.]
    Error to Jefferson common pleas court.
    Erskine & Smith, for plaintiff in error:
    Cited and commented upon tbe following authorities: Spicer v.’ Giselman, 15 Ohio’ 338; State v. Frontier, 77 Ohio St. 7 [82 N. E. Rep. 518]; Frederick v. Douglas Co. 96 Wis. 411 [71 N. W. Rep. 798].
    W. C. Brown, for defendant in error:
    Cited and commented upon the following authorities: Newmeyer v. Railway, 52 Mo. 81 [14 Am. Rep. 394]; State v. Columbus (Bd. of EA.), 35 Ohio St. 368; Jackson v. Norris, 72 Ill. 364; Frame v. Felix, 167 Pa. 47 [31 Atl. Rep. 375; 27 L. R. A. 802]; Bound v. Railway, 45 Wis. 543; Russell v. Tate, 52 Ark. 541 [20 Am. St. Rep. 193] ; Bailey v. Tillinhast, 13 O. F. D. 216 [99 Fed. Rep. 801]; Crampton v. Zabriskie, 101 U. S. 601 [25 L. Ed. 1070]; 15 Am. & Eng. Cyc. of Law 1140; 16 Cye. Law & Proced. 34; Pomeroy, Eq. Jurisp. 260; dee v. Sanders, 74 Mich. 692 [42 N. W. Rep. 154]; Shakespear v. Smith, 77 Cal. 638 [20 Pac. Rep. 294; 11 Am. St. Rep. 327]; 2 Story,’Eq. Jurisp. 1252; Dillon, Munic. Corp. Sec. 915; Frost v. Belmont, 88 Mass. (6 Allen) 152; Citizens’ Loan Assn. v. Lyon, 29 N. J. Eq. 110; Blakie v. Staples, 13 Grant, U, C. 67; McClain v. McKisson, 8 Circ. Dec. 357 (15 R. 517) ; Brockman v. Crestón (City), 79 Iowa 587 (44 N. W. Rep. 822); Cope v. Wellsville (YU.), 25 Bull. 250; Bardie v. Bulger, 66 Miss. 577 [6 So. Rep. 186];.
      Hayden v. Thompson, 71 Fed. Rep. 60; Blair v. Newbegin, 65 Ohio St. 425 [62 N. B. Rep. 1040; 58 L. R. A.. 644]; Pomeroy, Eq. Jurisp. 436, 437, 438; New York Life Ins. Go. v. Beard, 80 Fed. Rep. 66; State v. Fronizer, 15 Dec. 1; Connell v. Brumback, 10 Circ. Dec. 149 (18 R. 503); State v. Sullivan, 8 Circ. Dec. 346 (15 R. 477) ; Egbert v. Building Assn. Co. 9 Dec. 646 (8 N. P. 507); Zinn v. Baxter, 65 Ohio St. 341 [62 N. E. Rep. 327]; Bates, PI. & Pr. 318, 319; Zimmerman v. Sehoenfeldt, 3 Hurt (N. Y.) 692; Patón v. Lancaster, •38 Iowa 494; Laverty v. Sexton, 41 Iowa 435; Webster v. Harris, 16 Ohio 490; Shaw v. Jones, 6 Dec. 453 (4 N. P. 372); 2 Bates, PI. & Pr. 1789.
   COOK, J.

Harry Walker with five others were elected members of council of the incorporated village of Dillonvale in April, 1905, and went into office in May of that year.

Section 197 of the municipal code passed October 22, 1902, (amended 97 O. L. 118; see Lan. Rev. Stat. 3208; B. 1536-851), provides:

Council shall fix the compensation and bonds of all officers, clerks .and employes in the village government, except as otherwise provided in this act. All bonds shall be made with sureties subject to the approval of the mayor. The compensation so fixed shall not be increased • or diminished during the term for which any officer, clerk or employe may have been elected or appointed; provided, that members of council, may receive as compensation the sum of two dollars for each meeting, not to exceed twenty-four meetings in any one year, and they shall have such other powers as are conferred upon councils of villages by Section 1678 of the Revised Statutes of Ohio.”

In December, 1905, council passed a resolution to pay members of • council for meetings theretofore held. The amount was paid to each of them, and this suit was instituted by the village of Dillonvale on relation of Thomas McCabe, a taxpayer, against each of said parties to recover back the amount so paid, they all being joined in the action. The suit is really one in equity to require them and each of them to ■pay back into the village treasury said sum of money and for a decreo .against each of them for said sum which, as claimed, was illegally taken from the village treasury.

The court of common pleas so treated the action and ordered each ■ of the defendants to pay to the clerk of the court the amount received by him, to be turned over by the clerk to the village treasurer for the benefit of the; village.

Three questions are made: First. Was the money illegally paid to these councilmen? Second. Had Thomas McCabe, as a taxpayer, a plight to bring and prosecute the suit on behalf of himself, or for the benefit of the village? Third. Was the suit properly instituted and prosecuted against all the councilmen in one action ?

As to the first question: Council did not fix the compensation of the councilmen until after the performance of the services. It is well settled in this state that where services are performed by a public officer . where no compensation is provided for, that he is presumed to perform the services gratuitously, and that he cannot recover any compensation for such services.

We have had this section before us before, and have held that council must fix the compensation before the services are performed or none can be received. The section says council shall fix the compensation 'and bonds of all officers. When fix compensation? Clearly,before the ’services are performed. We, therefore, hold the money was illegally paid to these defendants.

The next and important question is: Had McCabe the legal authority to bring the suit ? There is no statute authorizing him to bring such suit. There is statutory provision providing that a taxpayer may call upon the solicitor to restrain the paying out of money illegally and in case the solicitor fails, the taxpayer may bring such suit in his own name, but none to recover it back after its illegal payment.

The provisions as to counties, Sec. 1277 Rev. Stat., and municipalities, Lan. Rev. Stat. 3280 and 3281; B. 1536-667 and 1536-668, are different in this regard. In such case, are the people helpless? That is the claim of plaintiffs in error. If that is so, then the law is indeed lame •and impotent. If the money is still in the hands of the treasurer then there is relief; if it has left his hands then there is no relief.

It is one of the principal objects of equity to afford relief when there is no remedy at law; and certainly a ease of this character affords a striking illustration of this very salutory principle of equity.

Judge Dillon in his work on municipal corporations goés into this ■question quite exhaustively: >

In Section 914 (731) it is said:

“In this country, the right of property holders or taxable inhabitants to resort to equity to restrain municipal corporations and their officers from transcending their lawful powers or violating their legal duties in any mode which will injuriously affect the taxpayers, — such as making •,an unauthorized appropriation of the corporate funds, or an illegal or wrongful disposition of the corporate property, or levying and collecting-void and illegal taxes and assessments upon real property under circumstances presently to be explained, — bas, without the aid of statute provision to that effect, been affirmed or recognized in numerous cases in. many of the states.”

“It is the prevailing, we may now add, almost universal doctrine on this subject. It can, we think, be vindicated upon principle, in view of the nature of the powers exercised by municipal corporations and the-necessity of affording easy, direct and'adequate preventive relief against their misuse. It is better that those immediately affected by corporate, •abuses should be armed with the power to interfere directly in their own. names than to compel them to rely upon the action of a distant state-officer. The equity jurisdiction may, in such cases, usually rest upon fraud, breach of trust, inultiplieity of suits, or the inadequacy of the-ordinary remedies at law. It is advisable, in view of its importance,, briefly to examine the doctrine above mentioned, and the grounds upon which it rests, in the light of some of the leading judgments of the-courts, the better to see its scope, limitations, and application. ’ ’

‘ ‘ The doctrine of the 'preceding section is also supported by an .analogy supplied by a settled rule of equity applicable to private corporations. In these the ultimate eestids que trust are the stockholders. In municipal corporations the cestuis que trust are in a substantial sense the-inhabitants embraced within their limits. In each case the corporation, or its governing body, is a trustee. If the governing body of a private-corporation is acting ultra vires or fraudulently, the corporation is ordinarily the proper party to prevent or redress the wrong by appropriate-action or suit in the name of the corporation. But if the directors will not bring such an action, our jurisprudence is not so defective as to leave creditors or shareholders remediless, and either creditors or shareholders-may institute the necessary suits to protect their respective rights, making the corporation and the directors defendants. This is a necessary and-wholesome doctrine. Why should a different rule apply to a municipal corporation ? If the property or funds of such a corporation be illegally or wrongfully interfered with, or its powers be misused, ordinarily the-action to prevent or redress the wrong should be brought by and in the name of the corporation. But if the officers of a corporation are parties-to the wrong, or if they will not discharge their duty, why may not any inhabitant, and particularly any taxable inhabitant, be allowed to maintain in behalf of all similarly situated, a' class suit to prevent or avoid the illegal or wrongful act? Such a right is especially necessary in the-ease of municipal and public corporations, and if it be denied to exist, they are liable to be plundered, and the taxpayers and property owners on whom the loss will eventually fall are without effectual remedy.”

In the case of Newmeyer v. Railway, 52 Mo. 81 [14 Am. Rep. 394], and in Russell v. Tate, 20 Am. St. Rep. 193 [52 Ark. 541], the rule as enunciated by Judge Dillon is approved and affirmed. In the latter case it is held:

‘ ‘ The relief granted may be either injunctive or affirmative. ’ ’

In the opinion it is said, page 195:

“There is no foundation in the authorities for the claim that the power of chancery is only injunctive. It would be a reproach to justice if it were true. In the present ease the appropriation was made, the warrant was drawn, ¿nd the money paid by the treasurer, before an attorney could have comprehended the situation, and have written the caption of a complaint. Chancery has ample power to prevent further wrong and require reparation for that which has been done. ’ ’

Many authorities are referred to sustaining the opinion.

The third objection to the proceeding below is, that no action could be brought against all the defendants jointly, but that the suit should-have been against each individual councilman. — That there was no such community of interest as is required to permit a joint action.

What is such community of interest under the provisions of equity regarding the prevention of multiplicity of suits ? Must each and all the parties be interested in the identical thing? We think not. There is a community of interest where all the parties are interested in the same subject-matter and where the same facts and rules of law govern them all; and in such case they may all be joined in the same suit, plaintiffs or defendants.

In Pomeroy, Eq. Jurisp. from Sec. 255 to 260 there is an elaborate discussion of this question, and in Sec. 260 the learned author says:

‘ ‘ The only community among them is in the questions at issue to be decided by the court; in the mere external fact that all their remedial rights arose at the same time, from the same wrongful act, and depend upon the same questions of law. This sort of community'is sufficient in the opinion of so many and so able courts, to authorize and require the exercise of the equitable jurisdiction, in order to prevent a multiplicity of suits.”

This would seem also to be in accordance with See. 5008 Rev. Stat,

The judgment of the court of common pleas will be affirmed.

Burrows and Laubie, JJ., concur.


author: CRAINE, J.

text:
    APPEAL — EXECUTORS—INSURANCE.
    [Muskingum (5th) Circuit Court,
    October 23, 1908.]
    Graine, Taggart and Donahue, JJ.
    Charles Hague v. Thompson Hague’s Exrs. et al.
    1. Legal Representatives in Insurance Policy may Mean Heirs or Next of Kin.
    The words “legal representatives" in their strict, technical sense, mean executors or administrators; but these words appearing in a life insurance policy, may be shown, by the context and surrounding circumstances, to mean “heirs or next of kin.”
    2. Action fob Recovery of Money Only Determined from Facts Plead' and Relief Required.
    Whether an action is for the “recovery of money only,” and hence not appealable, is not to be determined by the pleaders’ conclusions, or the prayer of the petition; but by a consideration of whether from the facts plead, any relief is necessary, other than a judgment for money.
    [Syllabus by the court.]
    Appeal from Muskingum common pleas court.
    Error to Muskingum common pleas court.
    Winn & Bassett, for plaintiff.

      J. J. Adams and J. R. Stonesipher, for defendant
   CRAINE, J.

Thompson Hague insured his life in the sum of $3,080, the policy providing that said sum should be payable to his “legal representatives” after the death of said Thompson Hague. Later Thompson Hague died and the insurance company paid said sum of $3,080 to the executors of said Thompson Hague, who retained the same and treated the money as assets of the estate of Thompson Hague.

After this had been done, Charles Hague, a son of Thompson Hague, brought an action in the court of common pleas of Muskingum county against the executors of Thompson Hague and made the other heirs and next of kin of said Thompson Hague, parties defendant, and in his petition alleged the issuance of the policy; the death of said Thompson Hague; the payment of said money by the insurance company to the executors; the retention of the same by them as assets of the estate of Thompson Hague, and the relation of the other defendants to said Thompson" Hague. The petition further alleged that said sum was to be paid, by the strict language of the policy, to the “legal representatives” of said Thompson Hague, but that in fact it was the intention of said Thompson Hague and the insurance company, at the time of the issuance of said policy, that said sum should be paid to the heirs or nest, of kin and that the true meaning of said words “legal representatives” was the “heirs'or nest of kin” of said Thompson Hague and not his. executors or administrators; that the insurance company, in paying said sum to the executors, did .so in trust and for the benefit of the heirs and next of kin of said Thompson Hague; that the executors had refused to-pay said sum to the plaintiff and the defendants, who were children of said Thompson Hague, and was treating said sum of money as assets of' the estate, and prayed for personal judgment against said executors and asked the court to determine what part of said sum belonged to the plaintiff and what belonged to each of the other children of said Thompson Hague, who had been made parties defendant, and for- such other relief as might be proper.

Later an amendment to the petition was filed, in which the plaintiff pleaded more-specifically the meaning of the words “legal representatives” and the intent and understanding of Thompson Hague and the insurance company at the time of the issuance of the policy, and in the prayer, asked for a decree against the executors, directing them to pay said sum of money to the several heirs or next of kin in such proportion1 as the court should find them severally entitled.

A demurrer was filed to this petition and the amendment thereto, on the grounds of a misjoinder of parties defendant (not for a defect of parties plaintiff), and because the petition and the amendment thereto did not state a cause of action, which demurrer was overruled and exception noted.

.An answer having been filed and issue taken, the case was tried to the court, without the intervention of a jury, and on such hearing, the court found the several amounts due each, and ordered and directed^ "the executors to pay said .sums to said plaintiff and the other heirs in the amounts found due them respectively.

Thereupon the executors brought the cause to this court as by appeal proceedings, and also by error proceedings. In this court a motion was filed to dismiss the appeal for the reason that it was an action for the “recovery of money only” and this court considered the motion to dismiss' and the proceedings in error jointly. Whilst there were other errors alleged in the petition in error, the principal contention was that the words “legal representatives,” found in the policy, meant executors or administrators and that no other meaning could be given these words; that if the intention was to pay the money to the heirs or next of kin, there would have to be a reformation of the policy, which had never been attempted.

This being the state of the proceedings before us, two leading questions were considered, viz.:

.1, Can the words “legal representatives” be shown to mean “heirs ,or next of kin V ’ ’

2. "Was this cause appealable?

I think when this question was first presented to the court, each mem-Iber thought, that the words “legal representatives” could mean nothing .more or less than their plain import, and that the money passed to the .executors or administrators to be administered upon as assets of the (estate, but upon an examination of the authorities, we found that the consensus of authorities were to the effect, that the words “legal representatives” may mean “heirs or next of kin” and that the sense in which they were used is to be determined by the context and surrounding circumstances. Griswald v. Sawyer, 125 N. Y. 411 [26 N. E. Rep. 464], is :,a case directly in point and cites numerous authorities to support this (Contention, The Encyclopedia of Law cites many authorities to the same .effect, and upon an examination of these authorities, we are well satisfied -that the law is, that the words “legal representatives” may be shown to mean “heirs and next of kin” instead of “executors or administrators.”

The next question is, was. this cause appealable?

The right of appeal is not a common law but a statutory one. There [have been many decisions in this state attempting to illustrate when an appeal will lie, but as the legislature has so clearly described under what conditions a cause may be appealed, it would be useless to refer to the ■many decisions upon the subject. Section 5226 Rev. Stat. furnishes the criterion for appeals. Under its provisions, before an action can be ap-pealable, it must appear:

First. That the court of common pleas had original jurisdiction.

Second. That the action is a civil one.

Third. That a judgment or final order has been rendered by the court of common pleas.

Fourth. That the right to demand a jury in the court of common pleas did not exist.

If all of these requisites exist, then the cause is appealable, but if any one of them is wanting, the action is not appealable. In the case at bar, every element existed, unless it be the last one, viz., that the right to' demand a jury did not exist, and hence if upon a consideration of the cause, a right to demand a jury in the .court of common pleas did not exist, then clearly the- case is appealable; but if on the other hand, a right to demand a jury in the court of common pleas did exist, then there can be no appeal. Did a right to demand a jury in the court of common pleas exist? Section 5130 Rev. Stat. provides the issues of fact, to determine which, a jury is demandable and reads as follows:

“Issues of fact, arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered, as hereinafter provided.”

The test is not whether a personal judgment is asked, but whether or not the action is for the “recovery of money only.” If the action is brought to recover some equitable relief, and the facts necessitate such relief, in order to give the party an adequate remedy, then the action is not for the “recovery of money only;” but if money only is the object of the recovery, and no equitable relief is necessary, then the cause is triable to a jury as a matter of right.

If the insurance company had not paid the money to the executors; and the words “legal representatives,” under the circumstances, meant “heirs or next of kin,” then the beneficiaries would have had nothing more than a plain action at law against the insurance company on the policy. The insurance company, however, paid this money to the executors. The plaintiff in this action alleges in his petition that the money was paid in “trust,” but we think that allegation was simply a conclusion of the pleader. There may have been some semblance of trust in it, but there was no such a trust as is administered by a court of equity. The insurance company, in contemplation of law, simply paid the money over to the executors for the benefit of the beneficiaries. The executors stood in the nature of persons, who received money to the use of the plaintiff and the other heirs or next of kin. When the executors refused to pay this money over to the proper parties, an action at law, for the recovery of that money, was the proper remedy. There was no equitable relief necessary or appropriate. When the plaintiff and the other heirs obtained a judgment against the executors for the money paid by the insurance company, that was all the relief they were in any manner entitled to, and this being true, the action was an action for the “recovery of money only” and hence, not appealable.

If upon the trial of the case it should have been found that the words “legal representatives” meant executors or administrators, then the verdict or finding should have been for the executors; but if it had been found that the words “legal representatives” meant heirs or next of kin, then a verdict or finding for $3,080 should have been for the heirs.

It is true the petition asked the court to determine the proportionate amount of this money each of the heirs was entitled to, but that was a matter in which the executors were not interested. In the adjustment of the amount due each of the heirs, there was an element of equity 'jurisprudence, but so far as the issues between the plaintiff and the other heirs and executors -were concerned, it was one for money only, and a jury was demandable. Had the heirs attempted to appeal from the decision on the court fixing their relative rights, another question might have been presented, but we do not pass upon that question in this case, for the reason that no attempt to appeal was made by any of the heirs. The only attempt to appeal was by the executors, and our holding is, that, as between the heirs or next of kin, and the executors, the action was. one for the “recovery of money only” and hence, not appealable.

The motion to dismiss the appeal will be sustained.

Taggart and Donahue, JJ., concur.


author: SULLIVAN, J.

text:
    MUNICIPAL CORPORATIONS — STREET RAILWAYS.
    [Montgomery (2nd) Circuit Court,
    June 22, 1908.]
    Wilson, Sullivan and Dustin, JJ.
    State ex rel. Herman v. Oakwood St. Ry.
    1. Amicable Arrangement Delating Grant of Street Railway Franchise Ex- . TENSION.
    A grant extending a street railway franchise is not rendered invalid, be- ' .cause while awaiting certain enabling legislation, under an amicable arrangement between the municipality and the company, the passage of the ordinance extending tbe grant was deferred for some months beyond the termination of the life of the original grant.
    2. Parliamentary Errors Will not Defeat Extension of Street Railway Franchise.
    An ordinance • extending a street railway grant, which relates to but one road and involves no expenditure of money belonging to the city, but is-simply a contract between the railway company and the city, is not of a general or permanent nature, and is not rendered invalid by reason of failure to read it on three different days or to suspend the rules requiring this to be done.
    3. Presumption of Regularity in Publication of Ordinance.
    The duty of publishing an ordinance rests upon the city, and in an action brought by the city solicitor to oust a street railway company from its franchise, it is encumbent upon the city to establish such an omission, and in the absence of proof to that effect a presumption arises that pubr lication was regularly made.

      4. Objection as to Consents to Franchise Extension Waived.
    Whether consents from abutting property owners were secured for such, an extension is a matter which concerns the property owners only, and in the absence of complaint from them cannot be used by the city as ground for an ouster proceeding; and, moreover, such an objection will be deemed-to have been waived where many years have intervened.
    5. Error in Name of Street Railway not Fatal to Grant.
    The fact that the extension was granted to the Oakwood Street Railroad Company, instead of the Oakwood Street Railway Company, does not. afford ground for an ouster, where it is admitted that it is one and the-same company, and the city accepted the bonds of the company and all the bridge and street improvements made by it under the ordinance.
    6. Judicial Construction as to Validity of Statutes has no Retroactive Expect on Contracts. - ‘
    Inasmuch as judicial construction with respect to a statute is given the-same effect in its operation on contracts and existing contract rights that, would be given by legislative amendment, subsequent adjudications which seem to render Sec. 2502 Rev. Stat. unconstitutional will not be construed as having a retroactive effect upon a franchise founded on a good consideration and granted at a time when this statute would have stood the constitutional test; and particularly will such retroactive effect be-denied in view of the curative provisions of Sec. 31, Mun. Code of 1902. (Lan. Rev. Stat. 3771; B. 1536-191).
    QUO WARRANTO.
    A. H. West, for plaintiff.
    McMahon & McMahon, for defendant.
   SULLIVAN, J.

This action was brought originally in this court and submitted' at its last term; it is an action to oust the railway company from its; franchise. The issues are plain and well put, and there is little or no conflict in the testimony upon the main facts, and the-questions of law arising upon the issues made and the facts presented have been so fully settled in our opinion that it does not seem necessary to do more than state the conclusions we have reached. "

From the facts stated in the petition, -taken in connection with-the testimony submitted, we find that the action is properly brought..

The gravamen of the relator’s complaint is that the railway company is exercising and enjoying the privileges and rights claimed by it in contravention of law. There is.no complaint against the company that it is not exercising its franchises in the interests of the public, or furnishing all the facilities for its patronage that are required by law and the terms of its contract with the city. The plain, simple-question presented is whether it is exercising these privileges in contravention of law.

The railway company, in its response to the petition, sets forth in substance the ordinance granting to it the right and privilege of occupying the streets named for its tracks, and the operation of its cars thereon, and the agreement between the parties relative to the company •continuing in possession and operation of its route until the negotiations looking to a renewal of its former grant were terminated; and in addition it sets forth the considerations that moved the city through its officials to apply to the legislature to amend Sec. 2502, authorizing ■cities of its grade and class to grant originally, or extend grants, to .street railway companies’ franchises for a period of fifty years. That* relying upon the validity of the.act as amended and of the ordinance •enacted by the city in pursuance thereof, and upon the good faith of the city, it fully complied with and discharged the obligations to the ■city placed upon it by the city ordinance, and in addition expended large sums of money in the improvement and equipment of its road, etc., to keep pace with the demands of the public using its road.

The answer further sets forth that its route at the time of the passage of the ordinance was and is composed of two separate routes, which by proper proceedings under the statute were consolidated, and the consolidated route was known interchangeably as the Oakwood Bail-road Company and the Oakwood Bailway Company; that before consolidation the separate routes were known as Nos. 2 and 3. It sets forth the various expenditures of large sums of money. All were made on faith of the grant of fifty years. That for the improvement of the streets required of the company, the grant for that period was the chief consideration offered by the city. It has been continuously subject to the valid ordinances of said city under its police power; that it has since on demand by the state paid 1 per cent of its gross receipts.

The reply of the plaintiff, after denying many of the allegations of the answer of the company, sets forth in detail wherein the company is exercising rights and privileges in contravention of law; that the right and franchise claimed by the company began in 1891; that it does not and’ has not claimed any such rights except under the ordinance of that date; that the grant for route No. 2 expired March 17, 1891 ji that no ordinance or resolution was legally passed renewing said grant g that the ordinance of July 10, 1891, under which the company claims was never legally passed; that the franchise for route No. 2, whicH expired March 17, 1891, could not be renewed unless renewed during the life of the original grant or, as expressed by the statute, at its expiration; that the ordinance of July 10, 1891, was not read upon three different days before its passage, and the rules requiring this were not suspended, and hence the ordinance is not valid; and that Sec. 2502 Rev. Stat. as amended by act 90 O. L. 288, and under which the grant was attempted to be given, was unconstitutional.

The testimony produced shows that prior to the expiration of the original franchise for route No. 2, to wit, March 16, 1891, the city council passed an ordinance extending the franchise for a period of twenty-five years from and after that date. Because of the burdens imposed upon the company by this ordinance the railroad company declined to undertake the burdens with a franchise for only twenty-five years. It seems to have been satisfactorily apparent to both the city and the. railway company- that to assume and undertake the burden imposed would result in financial embarrassment to the company. By an amicable arrangement between it and the city it continued in the operation of its road, and also in negotiations with a view of a renewal of said franchise, and having Sec. 2502 Bev. Stat. amended authorizing the city to extend the grant for a period of fifty years and this amicable arrangement continued until the amendment was secured, and the passage of the ordinance of July 10, 1891, in pursuance thereof, extending the grant to the company for the period of fifty years from and after the date of the expiration of the respective grants. But relator claims because the statute provides that grants may be renewed at their expiration and that such statutes must be strictly construed, therefore, the grant for route No. 2 having expired March 16, 1891, it could not be renewed July 10, 1891, as stated above.

The testimony if not directly, still by inference, clearly shows that a renewal was sought at the expiration of the former grant, although its completion was not fully accomplished until July 10, 1891. During this period the parties were endeavoring to get together upon terms, and at no time were the negotiations looking to its completion abandoned. Bach party was desirous to arrive upon terms, and the delay was not because either had abandoned the purpose to renew.

We think, in view of these facts, and that now for the first time this claim is being made by the city, and the ordinance finally passed itself treating and designating it as a renewal, that the ordinance of July 10, 1891, should now be recognized and treated as a compliance with the statute.

The ordinance of July 10, 1891, was not read on three diíférent days, nor were the rules suspended requiring this to be done; and hence relator insists that the railroad company has no grant or authority to maintain and operate its road upon the several streets composing its route; that it is an ordinance of a general or permanent nature and unless it was read on three different days, or tbe rules dispensed with, it was a nullity. In our opinion it was neither of a general or permanent nature. It related to but one road, involved no expenditure of the city’s money, nor did jt relate to the government of the city, and the limitation of the grant extended by it was absolutely fixed. At the time there was and now is a general ordinance of the city, passed long prior to the date of this one, relating to all street railways within the limits of the corporation. Furthermore, the ordinance was simply a contract between the city and the railway company. We think, under the authority of Cincinnati St. Ry. v. Horstman, 72 Ohio St. 93 [73 N. E. Rep. 1075], it was a special act and temporary.

It is claimed by the relator that the ordinance was not published as required by the statute, and for that reason it is void. It was not incumbent upon the railway company to discharge this duty; it was upon the city. It seeks now to avail itself, to the prejudice of the company, of its own omission. Being incumbent upon the city, the burden of establishing this' omission is upon it. We are of the opinion it has not discharged it; and, in the absence of testimony on the point, the presumption is, that the ordinance was published.

The relator claims there is no proof of consents. Whether any were given as to the extension should not avail the city here, as that is a matter of the abutting landowners alone, and no one of that class, is here complaining. The lapse of so many years after the extension was granted, without protest, we are inclined to the view that in law it constitutes a waiver.

The charter title of the defendant is the Oakwood Street Railway Company and the grant in the ordinance is to the Oakwood Street Railroad Company. It is therefore claimed by the relator that the respondent has no grant. The relator does not deny the allegation of the railway company that it is the same company. It negotiated the renewal with the Oakwood Street Railway Company. It acted upon the acceptance of the ordinance by that company, accepted its bonds and all the bridge and street improvements made by that company under the ordinances, concedes there is no Oakwood Streejt Railroad Company; that the respondent has since 1871 operated the route and that it is called interchangeably Oakwood Street Railroad Company and Oakwood Street Railway Company. Certainly under these facts the relator does not seriously contend that the railway company should be ousted for this reason.

In our opinion the ordinance contains but one subject.

It is claimed by the relator that Sec. ^502, as amended April 24,. 1891, contravenes the constitution and therefore the grant of the city, July 10, 1891, to the railway company is invalid. At the time of the amendment Dayton was the only city in the state of the second grade of the second class. The classification by which it was placed in a class by itself was based upon a substantial difference in population, viz., below 30,502 and above 20,000. This court upheld the classification of Dayton in what is known as the crematory case. Its judgment was affirmed by the Supreme Court.

Our attention has not been called to, neither have we been able to find, any other ease in which classification, as applied to this city, has been assailed; and whether it would be upheld, when invoked under conditions disclosed in this case, it is unnecessary, we think, for this court to venture an opinion. Upon the point, however, it may not be out of place here to call attention to the expression of the Supreme Court, made since the cases State v. Jones, 66 Ohio St. 453 [64 N. E. Rep. 424; 90 Am. St. Rep. 592], and] State v. Beacom, 66 Ohio St. 491 [64 N. B. Rep. 427; 90 Am. St. Rep. 599], understood to overthrow the •entire doctrine of classification, found in the second syllabus in Gench v. State, 71 Ohio St. 151 [72 N. E. Rep. 900] :

“Within the legitimate purposes of general legislation, not relating to the organization of cities and villages, a bona -fide classification ■on the basis of real and substantial difference in population, and out ■of conditions growing therefrom, may be valid.”

Whether the section under consideration is repugnant to the constitution under State v. Jones, and State v. Beacom, supra, is not the question that must determine the controversy here. A change in judicial opinions respecting the constitutional validity of legislative enactments cannot have retroactive operation upon contracts entered into pursuant to statutory provisions and in reliance upon former adjudications respecting their validity. To give them such operation would violate another provision of the constitution equal in importance to the ■one urged here.

“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 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.” Lewis v. Sims, 61 Ohio St. 471, 486 [56 N. E. Rep. 194; 76 Am. St. Rep. 428] ; Douglass v. Pike Co. 101 U. S. 677 [25 L. Ed. 968].

So that if, in. view of adjudications since the amendment to Sec. 2502, April, 1891, the section is probably unconstitutional, yet as similar laws, including the same or similar constitutional defects, had been judicially determined valid theretofore and at the time of the grant to the railway company, the subsequent adjudications could not have a retroactive effect upon the grant, because it is a contract founded upon a good consideration. Shoemaker v. Cincinnati, 68 Ohio St. 603 [68 N. E. Rep. 1],

In the case of State v. Gilfillen, 29 O. C. C. 709, this court held the tax inquisitor law unconstitutional.

But we held that rights acquired by the inquisitor by virtue of contracts entered into according to the provisions of said act when that or similar acts were held by the highest court of the state to be constitutional were valid and subsisting rights, and could be enforced. This judgment was affirmed by the Supreme Court.

The ordinance is a contract between the railway company and the city, and hence the controversy here involves the above rule. 7

The overthrow of the doctrine of classification in State v. Jones and State v. Beacom, supra, necessarily involved in doubt numerous rights acquired by citizens whilst the doctrine was upheld. Whether feared or expected, yet so great was the surprise when it came that a special session of the legislature was deemed imperative and it was called. Rights similar in character to those involved in this ease, the legislature evidently apprehended would be seriously affected, involved in doubt and become at once a source of serious litigation; and hence it fixed rights arising out of contracts by legislative enactment. To avoid any question as to the rights of parties acquired by contract theretofore it passed a curative act — Section 31, Mun. Code of 1902 (Lan. Rev. Stat. 3771; B. 1536-191).

Whilst we have seen that the relator, under the common law, is not entitled to the decree it prays for here, yet the legislature has wisely removed all doubts that might arise.

Judgment for defendant.

.Wilson and Dustin, JJ., concur.