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    ORDINANCES ESTABLISHING STREET RAILWAYS.
    [Circuit Court of Cuyahoga County.]
    Wm. M. Raynolds, a Tax-payer, on behalf of Cleveland, v. Cleveland et al.
    Decided, June 21, 1902.

      Street Railways — Ordinances Establishing — Municipal Authority Limited — Ordinance Must Cover the Same Route Designated in the Actvertisement for Bids — Provision for Arbitration Between Company and Its Employes Invalid — Motive of Tax-payer Bringing Suit to Enjoin Immaterial.

    1. Authority upon the part of a municipality to regulate and control the construction and operation of street railways is obtained only from statutes expressly conferring such power, and is subject to all the limitations therein embodied.
    2. Section 2501 definitely prescribes what shall he done in an establishing ordinance and Section 2502 the conditions under which a grant may be made, and where there has been an advertisement for bids to construct a designated route at the lowest rate of fare, the municipality can not thereafter grant the right to construct a street railway upon a part only of such designated route, nor can the municipality, without publishing notice of and receiving further bids, make a grant for a route which includes a street not embraced in the route as originally designated.
    3. There is no requirement in the statute, providing for the bringing of a suit by a tax-payer to enjoin certain corporate acts, that he shall be free from a personal motive; and a complaint in such a suit as the one at bar, that the plaintiff is not sincere in his action for the protection of the public, but is in fact acting for the benefit of other street car lines, will be disregarded.
    4. A provision in an establishing ordinance, that differences between the company receiving the grant and its employes shall be settled by arbitration, is invalid, in that it is a restraint upon bidding and likely to increase the rate of fare.
    Caldwell, J.; Hale, J., and Marvin, J., concur.
    Appeal by plaintiff.
   Wm. M. Raynolds, as a tax-payer on behalf of the city of Cleveland, after making application to the corporation counsel to bring this action which he refused to do, brings this action on behalf of himself, and says that he is a resident and a tax-payer of the said city; that the defendant, the city of Cleveland, is a municipal corporation under the laws of Ohio, and is a city of the second grade, first class; that Tom L. Johnson is the duly qualified and acting mayor of said city; that said Johnson, together with the defendants, Harris R. Cooley, Charles P. Salen, Charles W. Lapp, James P. Madigan, John Dunn and W. M. Beaeom are the duly and legally constituted board of control of said city; and that The People’s Street Railway Company is a corporation organized and existing under the laws of the state of Ohio. And then he sets up his request served upon the city solicitor to bring this action, and the refusal of the city solicitor to do so and his failure to comply with the request. He states that on January 6, 1902, a certain ordinance, known as ordinance No. 35,897-u, and referred to hereinafter as the “establishing ordinance,” was passed by the council of the city of Cleveland to establish street railway routes, to provide for granting of a franchise to construct and operate a street railroad thereon, and specifying the manner whereby such franchise should be granted to the party offering to charge the lowest rates of fare under competitive bidding therefor, and prescribing the terms and conditions under which said street railroad should be constructed and operated; that said ordinance was approved by the mayor of said city on January 7, 1902, and was thereafter published as required by law, and took effect and became in force on January 18, 1902. And then he sets out the “establishing ordinance” in full, and the caption to the same is:

“An ordinance to establish street railroad routes, to provide for granting a franchise to construct and operate a street railroad thereover, and specifying the manner whereby said franchise shall be granted to the party offering to charge the lowest rates of fare under competitive bidding therefor; and to prescribe the terms and conditions under which said street railroad shall be constructed and operated.”

Then the ordinance provides to establish seventeen different routes, all within the city of Cleveland.

Section 2 provides for advertising for three consecutive weeks for sealed proposals, to be received at the office of the board of control, on the fourth Monday after this ordinance takes effect, to construct and operate a street railroad over the routes as established in Section 1 hereof; and each and all bids for such street railroad franchise so proposed to be granted shall be under and subject to the terms and conditions specified in the following sections of this ordinance.

Section 3 provides for the form and words of the bid, and the form is for the bid on a street railroad on routes as the same are described in Section 1 of the ordinance, as well as other matters, and the rates of fare proposed to be charged, and requires that, accompanying the bid, there shall be $50,000 put up in money, to be forfeited, under the conditions of said ordinance, if the same are not complied with.

Section 4 requires that each bid shall be accompanied by $50,000 in United States notes, national bank notes, or gold or silver certificates, to insure the performance of the contract. And the same section provides that the money accompanying the bid declared to be the lowest and accepted by ,the city shall be retained and become the property of the city as liquidated damages against said lowest bidder, upon the following conditions : ‘ ‘ Said money shall be so retained as liquidated damages upon the failure of said lowest bidder, within ten days after being declared such lowest bidder, to request in writing from the council and the board of control of the city of Cleveland permission to construct and operate , a street railroad over the routes defined in this ordinance.” And that, “Said money shall be retained as liquidated damages as aforesaid upon' the failure of said lowest bidder, within ten days after the passage and legal publication of the ordinance granting permission to construct said six miles of double track, to accept in writing the terms and conditions of said grant.” And, “Said money shall be retained as liquidated damages as aforesaid upon the failure of said lowest bidder within six months after the passage and legal publication of the ordinance making said first grant as above specified, to have constructed at least six miles of double track of said street railroad. On completion within the time specified, of said six miles of double track, said money shall be returned to said lowest bidder.”

Section 5 provides: “The board of control shall report all bids to the council with a recommendation as to which is the lowest bidder, and the moneys of all other bidders shall be returned to their respective owners immediately after such recommendation. ’ ’

Section 6 provides: ‘ ‘ The party whose bid is accepted by the city, within ten days after the date of being declared the lowest bidder, shall request in writing from the council and the board of control of the city of Cleveland permission to construct and operate a street railroad over the routes defined in this ordinance, and within thirty days after being so declared the lowest bidder said party shall apply in writing for a grant to construct at least six miles of double track and shall furnish the necessary consents of the abutting property owners to so construct said six miles of double track within said thirty days. Said party shall accept in writing the terms and conditions of the ordinance making said grant, within ten days after the passage and legal publication thereof, and the said six miles of double track shall be constructed within six months after the date of the grant thereof. The said lowest bidder shall make application within six months after the date of said first grant for permission to construct at least an additional six miles of double track of said street railroad, and shall obtain the necessary consents of the property owners and accept the terms of the ordinance making said grant the same as specified for said first grant. Said lowest bidder shall continue to make such applications to construct at least six miles of double track, at intervals of six months, obtain consents and accept the grants as above specified until permission to construct said entire system has been granted. The board of control shall have the power to extend the time for making said applications and obtaining the necessary consent of abutting property owners, and all parts of track shall be constructed, equipped and operated within one year from the time of the granting of each section, unless prevented by legal proceedings over which said lowest bidder has no control.”

Section 7 grants certain privileges as to property owned by the city.

Section 8 gives the right to the party whose bid is declared to be the lowest, to erect the necessary lines of poles and wires to connect the necessary power houses with said railroad system, and wherever the said route or routes provide for a private right of way the party so constructing said railroad shall have the right to construct the necessary curve into said private right of way, and to lay said tracks through and across the intervening streets.

Section 9 provides for the bind of power and machinery for moving the cars upon the route.

Section 10 provides: 1‘ The rates of fare for which the bidder proposes to carry passengers shall entitle the passenger to one continuous ride in the same general direction, and each passenger shall be entitled to one transfer ticket for passage to another line, at all points of intersection with other routes, if such transfer be necessary to enable him to continue to his destination.” And provides further for certain reservations, of the right of the city to regulate transfers to carry out this provision, and also reserves the right to establish transfer points, and require the exchange of free temsfers at such points between the lines of the proposed grantee hereof and other street railroad companies.

Section 12 provides: “Whenever the routes are along streets not in ‘free territory,’ so-called, now occupied by other street railroad tracks, said party so constructing said street railroad shall have the right to construct straddle tracks, the same to be removed whenever the joint right of use is established.”

Section 13 provides that, “Whenever any controversy arises between the party operating the railroad under the franchise hereby proposed to be granted and its employes which interferes or threatens to interfere with the operation of the road, each side of the controversy shall appoint two persons as its representatives, whose action shall be final.” And if such board does not agree within three days, then the mayor shall become the fifth member of the board and a majority vote of said board, consisting of five members, shall be final. No motorman or conductor shall work more than ten hours within the limits of fourteen hours in any twenty-four hours, except in case of emergency causing obstruction of traffic.

Section 14 provides for the expiration of the franchise within twenty years from the date of the passage of' the ordinance.

Section 15 is: “ The city reserves the right to purchase said street railroad, with any additions or extensions, whenever it may have the power to do so, for such price and upon such terms and conditions as may be agreed upon between it and the owner thereof, or upon their failure to so agree, then for such price and upon such terms as may be fixed by a board of arbitration consisting of three persons, a majority of whom shall decide all questions.”

Section 16 establishes certain regulations by which said board of arbitration is to be governed and the manner of choosing the same.

Section 17 provides for the manner of estimating the value of the property to be taken over to the city.

Section 18 is a reservation of the right on behalf of the city to decline to take the property at the valuation fixed by arbitration, but, in ease it does decline, it shall not demand the purchase,within a period of two years thereafter; and also provides that, “Whenever, after ten years from the date hereof, the net earnings of said company exceed eight per centum per annum on the actual bona fide value of said road, equipment, extension, etc., irrespective of the capitalization thereof, the owner shall pay one-half of said net earnings in excess of eight per cent., whether said earnings are applied to interest payments, dividends, surplus, extensions or betterments, into the city treasury. And for the purpose of ascertaining said value the same procedure shall obtain as provided in Section 17 hereof for purchase.”

■ Section 19 reserves to the city the right to grant a way for other roads over the tracks of this company.

Section 22 provides: “No bids will be considered which provide for a higher rate of fare than three cents. The city reserves the right to reject any or all bids. ’ ’

The petition further states that, after the publication of such establishing ordinance, the clerk of the city advertised, according to the provisions of the ordinance, for sealed proposals to be received at the office of the clerk of the board of control until twelve o ’clock at noon on February 10, 1902, for the right to construct and operate a street railroad over the routes as numbered and described in the establishing ordinance; that John B. Hoefgen bid at a proper time and place, by a sealed proposal in the form provided for in the above-mentioned establishing ordinance; and that, according to his bid, he agreed to construct and operate a railroad on the routes such as are described in Section 1 of the establishing ordinance, and agreed to conform in every particular to the requirements, conditions, provisions, and stipulations as in said ordinance set forth, and as referred to, implied, or indicated by said ordinance, and the rates of fare therein specified; that he was the only bidder, no other proposal being made; and that thereafter the board of control recommended to the council of said city that the said John B. Hoefgen was the lowest bidder and that he was found and declared by the council to so be; and that thereafter, on February 5, 1902, John B. Hoefgen filed an application to the city council and said board of control of said city for permission to construct and operate a street railroad over the routes referred to in said establishing ordinance; and that on March 24, 1902, an ordinance known as No. 36,624, and which I shall hereinafter refer to as the “granting ordinance,” was passed by the council of the city of Cleveland, purporting and attempting, in compliance with the provisions of the establishing ordinance, the advertising for sealed proposals or proposed bids thereunder, and the bid of the said John B. Hoefgen in response to said advertisement, and the acceptance of said bid, to grant to him, the said John B. Hoefgen, the right to construct and operate a street railroad over the routes in said granting ordinance passed March 24, described; and that said granting ordinance was, on March 24, 1902, approved by the mayor, and was by the clerk of the city published for the first time in The Cleveland Plain Dealer on March 28, 1902. •

It is claimed that the granting ordinance does not conform to the establishing ordinance nor does it conform to the publication made after the passage of the establishing ordinance, and that there are various other conditions which it is unnecessary to notice at this time.

The petition sets u.p various respects in which the contract made with J. B. Hoefgen on the part of the city is illegal, and, on account of which illegality, it is asked by the plaintiff to have the court enjoin the construction or the carrying out of said contract. Some of these I will briefly state:

First. That at the time the establishing ordinance was passed and the proposals advertised for, there was no application by Hoefgen for permission to build a road.

Second. That Hoefgen made no application to construct a road on Champlain street before the granting ordinance was passed, and no such application was made by any one, nor was such application published for three weeks.

Third. That there were no proposals, and no bid to construct a railroad over the streets included in the granting ordinance: Superior street from the easterly limits of the city to Rosedale avenue, a distance of about 1,800 feet; Rosedale avenue between Superior street and Wade Park avenue, a distance of about 2,550 feet; Norwood avenue between Wade Park avenue and Bona street, a distance of about 1,425 feet; Bona street between Norwood avenue and Dana street, a distance of about 375 feet; private right of way between Dana street and Lyon street, and crossing the last-named two streets, about 375 feet; East Stanard street between Lyon street and Wilson avenue, about 750 feet; Marquette street between Wilson avenue and Hamilton street, about 900 feet; Hamilton street between Marquette street and Kirtland street, about 1,800 feet; Champlain street between Canal street and Ontario street, about 1,800 feet. These are the distances given in the petition, which are only substantially correct as to some of them, as was shown by the evidence' and admitted facts. And it is claimed that as to these parts which are covered by the granting ordinance, there was no proposal and no bidding by Hoefgen.

Fourth. It is claimed that there is a departure in the granting ordinance from the establishing ordinance, as to some 2,025 feet on Rhodes avenue between Denison avenue and Burton street; that this difference consists of whether the tracks of the road shall be used, or whether straddle tracks shall be built.

Fifth. That the bid of Hoefgen was for seventeen routes as required in the establishing ordinance, about seventy miles in length, while the grant is only for a part of these streets and includes other streets not mentioned in the bid, and the grant is for only about eleven miles.

Sixth. That the establishing ordinance, the advertisement for proposals, and the bid of Hoefgen were for all these routes of about seventy miles in length in the aggregate, as a single road and extending to all parts of the city for a single fare, whereas the grant was for only a part; and it is claimed that there was no competitive bidding for the route that was granted. It is claimed that the carrying out of the contract should be enjoined because the bidder was required to put up $50,000 as a guarantee to get consents, and because of the terms by which it was to be forfeited.

Seventh. That the contract was illegal in the provision for the city to purchase the entire road; that the city had no authority, and that this was a provision that would deter bidders, and thwart the purpose of getting a bid at the lowest fare. It is claimed that the contract is illegal because founded upon compulsory arbitration of disputes with employes, and because of the unreasonable and unwarranted conditions in this feature of the contract, which tended to prevent free, competitive bidding.

Eighth. That there is a variation in said contract, from the establishing ordinance, as to the right to use other tracks instead of establishing straddle tracks.

After the bid of ■ John B. I-Ioefgen was accepted he made application as required by the establishing ordinance to build the road; and thereafter, within the time required by the establishing ordinance, he made application to build some thirteen miles of the road, and for which he presented the required consents, and thereupon the ordinance was passed granting him the permission to build that road. He has not the consents on any other part of the road contemplated in the establishing ordinance, nor does the later ordinance purport to give him any contract rights to build any portion of the seventy-five miles except the thirteen miles above referred to, which thirteen miles is comprehended within three of the routes described in the establishing ordinance. And complaint is made that this contract awarded him is illegal in the matters above referred to, and especially so as to the matter pertaining to Champlain street. It is admitted in the case, on behalf of defendants, that there was no application and no publication as to Champlain street.

When the parties were about to make the contract, or prior thereto, it was discovered that consents could not be had over Canal street, and hence no legal contract could be made by the city for the construction of a road over that street, and thereupon, instead of following Canal street from Champlain street to Michigan street and over Michigan street to Seneca street and Seneca street to Champlain street, the route was changed, and the road was continued over Champlain street to Seneca street and did not pass over Canal and Michigan streets; and .especially as to the fact that the building of the road under this grant, for some thirteen miles, was never published separate and apart from other routes, was never applied for separate and apart from other routes, and was never bid upon as a separate route; and the city has let it as a separate and distinct route without bidding, without application and without advertisement, and in this the spirit, intent and purpose of the law has been so far violated that the carrying out of this contract should be enjoined.

The defendants’ counsel in this case have urged upon the court the great public benefit that this road will be to the pub-' lie in this city, and of its being a step in the direction that will result in good, and that the court should be willing to help to carry out a purpose to benefit the public. While these considerations urged with so much earnestness by counsel appeal to the court- with all the force that they should have in a connection of this kind, yet we regard it our paramount duty in consideration of this, as we do in all eases, to determine what the rights of the parties are. These rights resting in contract, and this contract as to its legality being measured by the authority of the city to enter into and to make such a contract, the only •consideration that is worthy of our attention in this case is, as to whether the city has complied with the laws defining its duties and rights, and, if it has acted lawfully, its action should be approved. If it has acted beyond its power, or in such a manner as to thwart the purpose and intention of the law of the state pertaining to this matter, then the court should be fleet to say so and enjoin such unlawful acts. So that our only purpose, as it is our duty, in determining this case, is to determine whether the city in making the contract it has made, has proceeded according to law and has carried out the purpose and intent of the law in what it has done.

The streets and highways belong to the state and are under the control of the state, and, in former times, the establishment of a street railroad was usually granted by a special act of the Legislature; but the state has seen fit to place the streets of a city under the control of the city authorities, subject to such regulations and restrictions as the state may see fit to impose. Merely granting to the city power over streets at a time when street railroads were not contemplated would not necessarily give to the city power to regulate and control the building of street railroads within the streets of the corporation; and, hence, after giving the power to the city to regulate and control and improve and lay out and establish streets, the Legislature, after street railroads became in use, saw fit, in Section 3437, Revised Statutes, to define wherein the municipal corporations of the state may allow street railroads to be constructed, and conferred upon the city the power, in Section 3438, Revised Statutes, to grant authority to construct the same, and has seen fit under Sections 2501 and 2502, Revised Statutes, and other sections in connection therewith, to prescribe terms and conditions upon which the city council can allow such roads to be built, and these are limitations upon the power conferred upon the city council by the former sections, and the power being granted under limitations and conditions attached thereto, the power can be exercised only in accordance with the limitations and conditions as found in the statutes. If these have been complied with in the granting of this railroad in the streets, the city has performed its entire duty, and its acts should be approved by the courts; if not complied with it has failed to make a legal contract and the carrying out of-the same should be enjoined.

Section 2501, Revised Statutes, provides:

“No corporation, individual or individuals shall perform any work in the construction of a street railroad until application for leave is made to the council in writing, and the council by ordinance shall have granted permission, and prescribed the terms and conditions upon and the manner in which the road shall be constructed and operated, and the streets and alleys which shall be used and occupied therefor, but the council may renew any such grant at its expiration upon such conditions as may be considered conducive to the public interest.”

The purpose of this section is to point out what steps are necessary in establishing a road; and it provides that the first step, before anything shall be done, is, that there- must be made an application to the council in writing, and the second step is, that the council by ordinance shall grant permission, and, in that ordinance, it-shall prescribe the terms and conditions upon, and the manner in which the road shall be constructed and operated and the streets and alleys which shall be used and occupied therefor.

And we think it is the intention of the statute that upon leave being applied for, the council must, by ordinance, which is the establishing ordinance, map out the streets and alleys and the route that the road is to pursue, and fix in that the terms and conditions and the manner in which the road shall be constructed and operated; and Section 2502, Revised Statutes, provides that none of these things shall be done; there shall be no ordinance nor resolution to define a street railroad allowed except upon the recommendation of a certain board, if the city has that board, and no grant shall be made except to the corporation, individual or individuals that will agree to carry passengers upon such proposed railroads at the lowest rate of fare.

' It seems to us, then, that Section 2501, Revised Statutes, definitely fixes what shall be done in or by the establishing ordinance. We do not intend to say that the council can not act, by way of making an establishing ordinance, unless some one has applied for leave to build a railroad; but the legislators seem to have taken it for granted that the council would not act unless some one desired to build a road; and Section 2502, Revised Statutes, says that no grant shall be made except to the corporation, individual or individuals that will agree to carry passengers upon such proposed road at the lowest rates of fare and shall have previously obtained the written consent of a-majority of the property holders upon such street or parts thereof.

The establishing ordinance is a condition precedent, and, that-it shall mark out the streets and alleys over which the road shall pass, is imperative, and the publishing thereof required in the same section is imperative, and all that must be done before any contract can be made, and before any contract can be made there must be some method adopted of ascertaining the lowest bidder. The only practical way to ascertain the lowest bidder is by calling for bids and sealed proposals and determining it in that manner, and the city did not undertake to determine it in any other way, and that, to our minds, is the only practical method and the one contemplated by the statute.

In this ease the contemplation of the establishing ordinance is but one railroad, although some seventeen different routes are prescribed in the ordinance, yet it is everywhere referred to as one road. It was treated by the council in the establishing ordinance as one road; it was published as one road, and the streets and alleys were defined as being one road; it was a unit. There is no suggestion, in the establishing ordinance, of different roads, btit only different routes of one road, and the whole action of the city, up to the time of the granting of the contract, seems to point to but one road, but, after the publication, the city undertakes to change the route of the road and undertakes to dissect this road into parts, and accepts a bid over all these routes as though made on the one that it let.

It is contended on the part of the defendants that no application is necessary prior to the establishing ordinance; and it is contended that the passage of an establishing ordinance is not necessary and is not required by the statute — that it is a mere voluntary proceeding by the council if done at all and is extra-statutory. We can not agree with counsel in these views. There is no doubt some uncertainty in the authorities as to the purpose of the application, and this same purpose seemed to bother the judge in the case of Aydelott v. Cincinnati, 11 C. C., 11; but the courts are quite uniform in holding that an application and publication thereof is jurisdictional to the passage of the final grant.

In Aydelott v. Cincinnati, supra, that court held that if an application for the route as finally granted, was not made and published prior to the passage of the final grant, such final grant would be void. This case has a very direct bearing upon the grant on Champlain street between Canal and Ontario streets as made in this case, and it was held in that ease that if the streets were changed after the publication it would be necessary that there should be a new application and a new publication before the making of the final grant, and, if they were not made, the grant would be void.

It seems to be fully within the intent as well as the letter of the statute that some resolution or some proceeding of the council is necessary before bids are taken, in order to advise bidders as to what they are to bid upon, and especially as to a definite route. There would be no basis on which bids could be offered unless some route over definite streets and alleys was established and the conditions and rules and regulations governing the construction and operation of the road were definitely known to those who expect to bid.

The defendants rely upon the ease of Sandfleet v. Toledo, 10 C. C., 460, as authority that an establishing ordinance or resolution is not necessary. But an examination of that case shows that Sandfieet sued as an abutter, and, suing in that capacity, the only question he could raise was the question as to whether the necessary consents had been obtained or not, and he was not concerned with the sufficiency of the application, and the preliminary steps taken by the company and the city were not pertinent questions so far as his rights were involved in the ease, and hence that question was not properly before the court. In that case there had been an application for the railroad, and that had been published; there had been competitive bidding, and the railroad had been constructed except one street where it had been enjoined at the suit of an abutter for want of necessary consents on that street. Later, new consents were obtained and a grant made to extend over the street in which the line had not been built for want of consents. The court seemed to regard the publication of an application for the purpose of soliciting bids, as unnecessary because this was an extension and so regarded by the court, and, for that reason, no application was necessary in the case. The court states that it was not the inauguration of a new enterprise; that the street had been once applied for; that the application had been published, and the successful bidder had been ascertained, and the grant had failed for the want of the necessary consents, and that, as to the public, the railroad over the rest of the route was effective as to it.

We do not see how any question could have been raised in that case that would, in any event, bear upon the case before the court. The plaintiff was such that the only question which he could raise would be a want of consents, and we think that case falls entirely short of being authority for the proposition that the city can, after the preliminary steps are all taken and the jurisdictional facts found to exist, grant only one part of the line upon which bids have not been taken separate and apart from the other portions.

The defendants claim that Sandfleet v. Toledo, supra, is authority for their claim that a street not applied for and not bid upon can be covered by the final grant. In that case Summit street had been advertised, bid upon, and had been granted. Every requirement of the law for the protection of the public rights had been complied with; nothing had been left undone; no member of the public could have made any complaint; and construction was enjoined on that street at the suit of an abutter for want of necessary consents. Afterwards the requisite consents were obtained, and that disposed of the only question that the abutter could make, and the question as to whether, when the consent failed on Summit street, the balance of the grant was valid or invalid was never before the court. The only question as to the validity in that case that was raised, and the only one upon which the court could pass, was as to the validity of the consents and whether the required number had been obtained. There was no occasion for the court to pass upon the validity or invalidity of the balance of the grant; it was not challenged by any one who could have been sustained in court under such a challenge.

In Smith v. Railway Co., 8 N. P., 1, definite routes had been applied for, and application had.been published, and all the necessary jurisdictional steps had been taken to a lawful grant as to all questions in which the public was interested, or which the public could raise. The only question there was raised by an abutting owner, and the only question he could raise or did raise, was as to whether the required number of feet had been obtained; and, after the consents were obtained on these routes, the city made a contract for the balance of the road as already let.

We do not regard these eases cited as any authority upon the question before the court pertaining to Champlain street. In this ease there had been no application, no publication as to Champlain street, no proposals were called for, none made; and, with respect to this street, there had been no bidder whatever, and the difference in the facts are so striking that the authorities .cited fall far short of establishing the proposition.

We are also referred to Buckner v. Hart, 52 Fed. Rep., 835. The plaintiff in that ease resided on a street which had not been offered for competitive bidding. He objected to the construction of a railroad on that street, and the court held the grant invalid on that street because it had never been put up to competition; but the court was not called upon to say, and did not say, whether this fact rendered the whole ordinance void or not, but did hold the ordinance void on other grounds. The case is authority in the ease before the court only so far as it decides that the railroad could not be constructed on the street on which plaintiff lived, because that street had never been put up to competition. And the court further proceeded to hold that the ordinance was void for other reasons. We can not discover that the court intimates whether the ordinance would be void for that reason or not.

It is said that the change from Canal and Michigan streets to Champlain street is so slight a change that the court should not enjoin the carrying out of the contract on that ground alone. It is admitted that if the application, the establishing ordinance and the publication are imperative requirements of the statute, then the city has not complied therewith as to Champlain street; and the comparatively small distance is such, when taking into consideration the thirteen miles, that the court ought not to overturn the granting ordinance on account of that very issue. As we have said before, this entire system is, in contemplation of the parties, but one contract, but one road, and is not separated until application is made before the passage of the granting ordinance to build the thirteen miles. But this question should not be determined on the ground of the insignificance of the deviation, but upon broader principles. The object and purpose of all that the city is doing, and is required to do by the statute, is to get finally the lowest bidder, or the one who will carry for the lowest rate.

It was known at the time that these bids were made, or soon after, if .not at that time, that consents could be had on Canal street, and, for‘aught this court may-know, that fact may have deterred other bidders from putting before the city a bid. If a party knew that he could not get consents to build the road, providing he should be found the lowest bidder, he would not be likely to bid at all; and, if there had been an intimation at the time the bids were received, that the change could be, or would be made, for aught we know, other and lower bids might have been received. And this matter, although claimed to be insignificant, may have been the very thing that kept others from bidding; and only one having bid, can the city change the route without afterwards notifying, or publishing notice, by which others may be permitted to bid after the change is made? We think there is no authority in law for the city doing that, and we can not, in our judgment, overlook the matter on the ground of its insignificance, for, while it is not extensive as to the length of change when compared with the entire line, yet it is sufficient to entirely thwart the very purpose of the statute, and, that being so, the city would have no right to make the change.

We have already said that Sections 2501 and 2502, Revised Statutes, are limitations upon the mode and manner in which the city shall control the streets, and, being such, they must be substantially, at least, adhered to. The statute clearly contemplates that the city is to act when application is made to it, and, when it does act, the steps it is to take are definitely pointed out — as to publication and defining the route, and letting to the lowest bidder, and requiring consents, before the contract is made.

The object and purpose of the statute in requiring publication is, unquestionably, to advise bidders of the nature and character of the road and its location, and of the requirements of the city as to its rules and regulations in governing the construction and running of the same. It is hard to conceive of any other method by which the city might ascertain the lowest bidder and the public be assured that the lowest bidder had been obtained; and the city adopted this method as to the entire routes described in Section 1 of the establishing ordinance. Those steps were all regular and properly taken for the purpose of establishing a street-car line on that entire system. But, if it was the purpose of the city to let only a portion of the seventy miles or over, after having proceeded regularly to let the whole, and have no bidding arrangement between the bidder and the city as to the remaining portions, but leave them in that condition that if the line is sought to be established upon them, there is no binding' contract on the bidder to build them and no binding obligation on the city to allow the builder to build them. This arrangement seems to divorce entirely the thirteen miles let from the entire road and make of it a distinct and separate road. No bids were ever offered or received upon this thirteen miles; none were ever called for; there were no advertisements for bids on it; hence there never was competitive bidding, never a chance offered by the city for competitive bidding on it. For all that appears this may have been the only desirable route on which any one would bid, were the different routes separated. And to obviate the difficulty in which the facts of the case place the city and Hoefgen, it is necessary for the city to contend that application, advertisement and definite description of route are entirely unnecessary; that the only jurisdictional facts to be ascertained by the city before maldng the contract is that it has obtained the lowest bidder and that the grants are obtained. And the argument of the city is that a start can be made from the point in the proceedings where Hoefgen made application to build the thirteen miles; and, if from that point, the city obtained for that portion-the lowest bid, then the contract is a valid one, and the city seems to conclude that it devolves upon the public, as represented by the plaintiff, to show that the lowest rate of fare has not been obtained. This, we think, is illogical and leads to an erroneous conclusion.

The statute points out the method in which the lowest bidder is to be obtained, and that method is intended for the protection of the public, and when the steps contemplated by the statute have been taken, the public is protected; but if those steps are omitted, the public, in view of the legislation upon this subject,is not protected.

For all that appears in this case, it may be that much better terms could have been had on this thirteen miles of road than upon the entire road as advertised. It may have been there w'ould have been many bidders for a road of that length that would not bid on a road seventy miles or over in length. Much less capital would be involved, and this, of itself, would increase the number of bidders; and the fact that this thirteen miles was a part of the entire line will not validate the action taken in the contract made by the city, for, as we have said before, the city is under no obligation to let any more of the entire road to Hoefgen, nor is Hoefgen under any legal obligation to build the" same.

The thirteen miles has been taken as completely out of the entire line as though it had been separate from the beginning. We are of the opinion that the requirements of the statute were not followed in making the contract in question; and the deviation from the statute is such that the public has a right to require the statute to be followed before a contract shall be left for building the thirteen miles.

It has been said in argument, as to the variation between the establishing ordinance and the granting ordinance, and to the conditions as to paying a part of the income from the road into the city treasury, and provisions for arbitration as to differences between the road and its employes, and as to the right of the city to purchase at a future date, should it receive the power to do the same from the Legislature, and other provisions of like character, are immaterial. It seems to us that some of these provisions of the contract, and some of these variations between the two ordinances, are very material, and such an arrangement does not afford the protection that the public is entitled to have under the statutes. Several of the provisions may be proper in a contract of this character, but, if, as the city claims, the only object and purpose of taking the various steps in obtaining a contract is to ascertain who is the lowest bidder, if that is the ultimatum, and the steps to arrive at that are immaterial, then it might, perhaps, be said that the contract is not so hampered by these provisions that they might not be included under the provisions of the statute allowing the city to prescribe the rules and regulations and the methods of running the road, but this, clearly, would not seem to include a right on the part of the city to determine the method in which differences between employer and employe should be settled, nor would it include the right of the city to place in its terms of arbitration upon the right of the city to purchase. These things are not contemplated in the statute, and the tendency of them is to keep persons from bidding, and, if they do bid, to increase the rate of fare, and we believe them to be contrary to the spirit of the law.

As to the variation between the establishing ordinance and the granting ordinance as to the route to be followed — referring now to those instances where there is a difference other than that of Champlain street — the only grounds on which it is sought to justify the same is that the variation is an immaterial one, being slight, and the variation being as long as the route first prescribed; and, second, on the grounds that no ordinance defining the route was necessary, that it might have been done by any method and at any time changed before the granting ordinance.

The claim as to the variation being a substantial route, as published in the establishing ordinance, is perhaps correct under the evidence in the case; but the claim that a definite route is not necessary is, we think, not well taken. But we do not believe that an ordinance should be held invalid, thus changing the route, unless that change would be such in its nature as to make a difference in the bidding, and, we think, under the evidence in this case, the difference in the bidding would have been slight, if any, and on that ground alone we would not enjoin the carrying out of this contract.

It is contended by the defendants that the plaintiff has no right to bring this action; that he is not sincere in bringing it for the protection of the public, but that he is bringing it for the .protection and benefit of the other street-car lines in the city.. The only requirement of the statute is fully complied with. There is no intimation in the statute that the party bringing the action must not have some personal motive and that he may not be influenced by other things than the mere protection of the public; and, in a case tried at Elyria which went to the Supreme Court, and ivas dealt with there in a manner that the court could not have overlooked this same question, it was ignored by the Supreme Court, though it was made in the ease, and the Supreme Court could not have reached the conclusion it did if this ground is well taken in this ease. It was not well taken in that case, and the party aggrieved was the one who brought the action in behalf of the public. We do not think this ground is well taken.

Wilcox, Collister, Kogan & Parmely, Squire, Sanders & Dempsey and N. C. Boyle, for plaintiff.

Beacom, Baker, Payer, Gage & Carey and Blandin, Bice & Ginn, for defendants.

The judgment is, that the restraining order in this case be made perpetual.


source: Caselaw Access Project

license: Public Domain

text:
    INJURY FROM A DEFECTIVE CAR COUPLING.
    [Circuit Court of Harrison County.]
    P., C., C. & St. L. Ry. Co. v. Fred. A. Stone.

    Decided, November Term, 1900.

      Railways — Negligence—Personal Injuries — Defective Gar Coupling— Brakeman Having no Knowledge of Its Condition is Injured — Presumption of Negligence — Cases Involving Doubtful Circumstances or Conflict in the Testimony Should be Submitted to the Jury Under Proper Instructions.

    1. Presumption of knowledge of a defect in a car coupling, both before and at the time of an injury to an employe having occasion to couple the car to a train, is chargeable to the railroad company; and this presumption can not he overcome by proof of facts which tend to raise the presumption that the company did not have such knowledge.
    2. A presumption of contributory negligence does not arise as to a brakeman injured while attempting to make a coupling with such a car in the night time, with no knowledge of the defect, or of the presence of other cars on the same track immediately in the rear, which the defective car in case of failure to couple would strike, causing a rebound, and in consequence of such rebound the injury occurs.
    3. If the testimony as to an accident is conflicting, and the circumstances such that different minds may arrive at different conclusions as to where the fault lay, the case should be submitted to the jury -under proper instructions.
    • Voorhees, J.; Frazier, J., (sitting in the place of Laubie, J.), concurs; Burrows, J., absent.

       Affirmed by the Supreme Court, without report, December 9, 1902.

   The plaintiff’s action was for personal injury sustained on or about November 20, 1897, while he was employed by the defendant company, plaintiff in error, as brakeman on one of' its freight trains, the accident occurring in the yards at Collier’s Station, West Virginia.

Two ground of negligence of the company are charged as a cause of action, which are:

First. That the appliances for coupling on the caboose, attached to the train on which plaintiff was employed at the time, were defective.

Second. That loaded cars were left standing on the track upon which the caboose with other cars of the train were switched, at the time of the accident, in such position that the caboose and train on which plaintiff was engaged in attending to his duties as brakeman, would be likely to collide with them and cause the injury, and in negligently and wrongfully forcing said caboose back against said cars as was done.

The defendant company by answer denies its liability for the injury thus sustained: (1). That it was not negligent in its duty to plaintiff in any act, or omission of duty, whereby injury resulted to the plaintiff. In other words, it denies all the material allegations of the petition upon which liability of the company is predicated, as set forth in the petition. (2). That the injuries sustained by plaintiff were caused by his own negligence, and without any fault on the part of the defendant.

The plaintiff by reply denies that his injuries were caused by any fault or negligence on his part.

The cause was tried at the February Term, 1900, of the court of common pleas of this county, to a jury, resulting in a verdict for the plaintiff in the sum of $5,250.

Motion for a new trial was filed and overruled, and a bill of exceptions containing the evidence was allowed and filed, and by petition in error the cause comes into this court for review.

A number of grounds of error are assigned as reasons for the reversal and setting aside the judgment. All the assignments of error are not specially pressed in argument, but the principal reasons urged by plaintiff in error are:

1. That the verdict is not sustained by the evidence and is contrary to law.

2. That the verdict is not sustained by any evidence.

3. That the court erred in its charge, and in refusing to charge as requested.

To state the contention more concisely, the plaintiff in error contends that the plaintiff below failed to show any negligence on the part of the company which resulted in or caused his injury; that from the evidence, as shown by the record, the negligence of the defendant in error was the direct and proximate cause of his injury. The questions will be considered in this order.

Was the company guilty of negligence?

The only negligence to be considered is, that the appliances for coupling on the caboose were defective. The ground of negligence on the part of the company by placing or permitting loaded cars to be on the track or switch when the accident occurred, was eliminated from the case at the trial, so far as furnishing a ground for recovery for negligence on the part of the company; and the court instructed the jury that they could not consider it for the purpose of predicating a recovery. But the ground of recovery was based upon the defective coupling on the caboose, and the negligence of the conductor in reference thereto, and in not giving notice to plaintiff of the presence of these loaded cars on the track.

This narrows the inquiry and issue as to negligence on the part of the company to the defective car, and to the negligence of the conductor in the particulars above mentioned.

The defect in the caboose complained of is that the coupling was too low. The standard height of draw-bars on unloaded ears was 34% inches. There is evidence in the record that the draw-bar on the caboose when measured in March, 1898, a few months after the accident, was 31% inches on each end from the top of the rail, and the conductor testified that they had had trouble with it in this regard from the time it came out of the shop in September, 1897. Immediately after the accident other employes of the company, in order to couple this caboose with the car plaintiff had attempted to couple it with when hurt, had to wedge up the draw-bar on the caboose, and without so wedging it up the link in the draw-bar would not work or connect. When Stone attempted to make the coupling he failed for the same reason. The cars having come together without coupling and the engine having been detached, it was necessary for him to get upon the platform of the caboose to' give the cars slack, or to separate them, in order that the coupling could be made. If this coupling had not been defective in the particulars mentioned, he could, as claimed by him, have made the connection in the first instance and without danger or harm to him.

In the trial of a personal injury case against a railroad company for injuries caused by defects in its cars, locomotives and machinery, or their attachments, the defects so causing injury are prima facie evidence of negligence on the part of such corporation; and by force of the statute of April 2, 1890, Section 3365-21, Revised Statutes, the burden is thrown upon the company to show by .proof that it has used due diligence, and is not guilty of negligence. Railway Co. v. Erick, 51 Ohio St., 146.

In view of the provisions of this statute and the decision above cited, the fact that the defect in the coupling existed, the company is presumed to have knowledge of it. The presumption of knowledge of the defect, both before and at the time of the injury, is chargeable to the company; and this presumption can not be overcome by proof of facts which only raise a presumption that the company did not have such knowledge. Competent and careful inspectors are presumed to properly inspect the cars and their attachments, but such presumption would not overcome the presumption of knowledge of defects before and at the time of the injury. It would take an actual and proper inspection or its equivalent to overcome the presumption of knowledge of such defects.

It is contended that there was no actionable negligence on the part of the railway company; that the coupling complained of was not the immediate cause of the injury to the plaintiff. The liability of the company really turns upon this question. The evidence certainly tends to show that from the time this caboose came from the shop, and on up until the time of the accident, it had given trouble to the crew operating the train to which it was attached, with knowledge of the conductor; and immediately after the accident the draw-bar on the caboose had to be wedged up before a coupling could be made with the car next to it. The plaintiff claims he did not know or have any knowledge of the defective condition. The conductor, although he knew of the defect, did not tell the plaintiff of it when he was about to make the coupling on the occasion of the accident. Therefore we think the jury was warranted in finding that there was negligence on the part of the company, through its officers, agents and conductor, in using this defective caboose.

It is also claimed that the plaintiff was guilty of contributory negligence; that he should have seen and known of this defect, having anticipated the difficulties resulting therefrom, when he attempted making this coupling on this occasion, and if he did not know it it was negligence on his part.

Briefly referring to the situation and circumstances surrounding the plaintiff at the time he received his injury, it will appear that he was directed by the conductor to make the coupling on track No. 19, on which track there were loaded cars standing without his knowledge. It was in the night season, between ten and eleven o’clock; the yards at Collier were unlighted; the only lights available were the lanterns of the train crews and the headlights of the locomotives. The conductor of the train on which the plaintiff was employed knew of these cars standing on track No. 19; he saw them that night and before the accident occurred to the plaintiff; he knew the position of the plaintiff on the caboose and the purpose for which he was there; he knew the engine had been detached from the moving cars that were-to be coupled with the caboose; he knew of the trouble and defect of the coupling appliances of the caboose; he knew of the threatened danger by reason of the presence of these loaded cars on the same track, yet, without any warning of the danger or signal to plaintiff that the engine had been cut loose, he orders him to make the coupling that plaintiff attempted to make when injured. "When the ears that were cut loose from the engine came in contact with the caboose, by reason of the defect in the draw-bar they failed to connect or couple. The plaintiff then got upon the platform of the caboose to loosen the brake to give slack to the cars, to enable him to make further effort to secure the coupling, and while in the act of placing the pin in its place to make the coupling, the caboose collided with the standing loaded cars and in its rebound the hand of the plaintiff was crushed.

It is shown by testimony in the record that in getting upon the platform to give slack to the ears and caboose that had come together when the coupling failed, he did what was usual and customary under such circumstances, and it was done in the ordinary way. Some of the witnesses testified that this is the usual and ordinary way of coupling cars situated as these were. The jury, of course, found that he was not guilty of any contributory negligence in this respect, and we do not see anything in the testimony that should lead us to disturb the verdict for that reason.

It is contended by the company that the plaintiff was negligent in attempting to couple the ears from the platform. It is not negligence per se on the part of a brakeman to uncouple cars while the cars are in motion when it is necessary to have them in motion to get the proper slack to enable the brakemen to do the work. Toledo, C. & C. Ry. Co. v. Frick, 8 Circ. Dec., 28.

Dunbar & Sweeney, for plaintiff in error.

Erskine & Hollingsworth, for defendant in error.

It is contended the plaintiff was bound to look out for danger when the cars were backing, and by so looking he could have avoided the threatening danger from these standing cars on the same track.

One who engages in a hazardous employment assumes all risks incidental thereto; but is not bound to anticipate such dangers connected therewith, as arise solely from the negligence of others not in law his fellow-servants; and, therefore, his failure to foresee and guard against dangers of the latter class does not raise against him, nor his personal representatives, a presumption of contributory negligence. Cleveland, C., C. & St. L. Ry. Co. v. Kernochan, 55 Ohio St., 306.

It is clearly the law of Ohio, as settled by repeated adjudications of the Supreme Court, that “where the question of contributory negligence depends on a variety of circumstances, from which different minds may arrive at different conclusions as to whether there was negligence or not, the question ought to be submitted to the jury under appropriate instructions. And, “if the testimony be conflicting, the facts uncertain, or the proper inferences to be drawn therefrom doubtful, in such case it would be error for the court to withdraw the case from the jury, or direct them to return a particular verdict.” Marietta & C. Ry. Co. v. Pickley, 24 Ohio St., 654; Cleveland, C. & C. Ry. Co. v. Crawford, 24 Ohio St., 631.

The law of the case being as we have indicated and believe it to be, when applied to the facts disclosed in this record, there is no error in the finding of the jury, nor is it contrary to law. And we think there is no error in the charge of the court as given, nor in refusing to charge as requested.

Judgment is affirmed.


text:
    HEALTH OFFICERS AND THEIR COMPENSATION.

    [Circuit Court of Stark County.]
    State, ex rel Miller, v. Council of Massillon.
    Decided, February Term, 1902.

      Health Officer — Appointment of, Mandatory — Hot in the Interest of the Locality only — But a Bequiremnet for the Benefit of the State at Large — Loes not Fall Within the Provisions of Section 1717— Prohibiting Increase of Salary of an Officer Luring his Term— Creation of a Board of Health also Mandatory — Provision for Expenses of Board and Health Officer's Salary — Such Services and, Expenses do not Fall toithin Section 2702 — Appointive and Elective Incumbents of Office — Mandamus.
    1. It is mandatory upon council to create a board of health, and it is mandatory upon a board of health to appoint a health officer and fix his salary, and the necessary appropriation to meet the expense must be made.
    2. A health officer does not come within the purview of Section 1717, prohibiting an increase of salary of an officer during his term.
    3. Nor does Section 2702, providing for the issuing of a certificate that the necessary funds are on hand before liability is incurred, apply to the salary of a health officer or to the expenses of a board of health; and mandamus will lie to compel an appropriation for such salary and expenses.
    Voorhbes, 'J.; Douglass, J., and Donahue, J., concur.

      For holding of the Supreme Court that a health officer is not an employe as that word is used in Section 189 of the Municipal Code of 1902, see 69 O. S., p.- (Ohio Law Reporter, Vol. 1, page 766).

   This cause is a proceeding in mandamus and comes into this court on appeal. There is but little controversy on the facts of the ease, and such facts as we have are submitted to the court on an agreed statement, reduced to writing, and for the purpose of the decision it will not be necessary to refer to them in many instances, as we deem the question that is submitted more a question of law than a question of fact.

There are two primary questions submitted for the consideration of the court. The first question is, whether the relator was a legal officer or employe of the board of health of that city, and the board of health having increased his salary while he was then in office, whether that could be legally done and would be such an act as would lay a foundation in his favor for service at the increased rate fixed by the board of health.

The second question is, whether the council of that city would be compelled to issue its order or make an appropriation for the payment of his services, in the absence of the certificate from the proper officer that there were funds on hand for the payment of his services at the time the liability was increased.

Perhaps I stated the propositions in the reverse order in which they were presented, but we think this would be the logical arrangement of the question that is properly before the court.

The first contention then is, could the board of health increase his salary while he was still in the employ of the board ? That depends on the nature of his office or employment. There is no difficulty in the proposition of law that an officer can not receive the benefits of an increase in his salary during the term of his office; and that does not necessarily depend upon an elective office, but it also reaches an appointee to an office. But before passing upon that proposition' we think that the word ‘ ‘ appointment” has significance. A person is elected to an office for a term, there may be a vacancy in the office, then that office may be filled by appointment; but such an appointee would stand in the same relation that the officer who was elected would stand, and can not receive an increase of salary during the unexpired term of that office. But that is not this case.

What is the office of this officer or appointee who was appointed by the board of health! He is called a “health officer.” But has he a term of office! That would be the first question.

The statute now applies to eases where there is an increase during the term. The word “term” has significance, as we think, under that section of the statute. It simply means to limit. That is, during the period that the office is limited, during that period his salary shall not be increased. But in this case there is no limit fixed by law. It is at the pleasure of the board of health that gives the health officer his position. It is their pleasure. It is not a term, for the reason there is no limit to it. It may be likened unto a tenancy at will, not a term, because it has no limitation. Therefore, it would be difficult to bring such an employe within the terms of Section 1717, Revised Statutes, prohibiting an increase of salary of an officer during his term, whether he be elected or whether he be appointed. We think that this is the true meaning of Section 2115, Revised Statutes.

“The board shall appoint a health officer, who shall furnish his name and address and such other information as may be required by the state board of health; and shall appoint a clerk, and may appoint as many ward or district physicians as it may deem necessary for the care of the sick poor, and persons under quarantine surveillance, and may provide for such quarantined persons necessary attendants, nurses, medicine and support until convalescent. The board shall have exclusive control of their appointees, and define their duties and fix their salaries; and all such appointees shall serve during the pleasure of the board. ’ ’

It will be observed that the duties of the appointee or health officer are not prescribed by statute. He is the servant of the board of health that makes the appointment. He is under their absolute control and direction; and in addition to that, they fix his salary. His salary is at the will of the board of health. His term of office is at their will; they may terminate it at their p7.easure.

Then the question will arise, if that be so, does such a 'person hold the office for a term ? Is there any limit to it, to which he may claim by virtue of his appointment? We think not.

It being then exclusively within the discretion and power of the board of health to fix his salary, there is no reason why it may not be changed at any time at the pleasure of the board, whenever necessity would seem to require it. And there would be wisdom in such a provision. Such an officer as this, the duties required of him not being fixed and laid down by the law, but are fixed and determined by the board of health, we can see very good reason why his services to-day, or for a week or month, might be much greater than at other times, dependent upon the condition and purposes for which the office is created, namely, to take care of these persons that require help, and for whom it is the duty of the board to provide. Now, that being the nature, of the employment, perhaps it is a misnomer here to call him officer at all. He is more like an employe or servant of the board of health. Then, if the board of health has the exclusive right to fix his duty, determine the length of time he shall serve them, fix his salary, when they act on that matter, it is then in compliance with the statute fixing the liability of somebody to pay. So we hold that in this case as a fact, that the health office here was not such an office as would come within the purview of Section 1717, Revised Statutes; that it is such an office that the salary is not fixed, and is liable to be changed at the will or pleasure, and the necessity as it may be looked upon and seen by the board of health.

"While we are on this branch of the case we want to make a further observation that will be pertinent to the next question. It is not discretionary with the board of health whether they will have a health officer or not. It is mandatory. It requires that they shall have one. The board of health shall appoint this health officer, and then provide how he shall'be governed under their authority and direction.

Then we might further observe the purpose of this statute. We think this is a mandatory statute to create this office. We think it mandatory and for the interest and benefit not of a local place entirely, that is of a city or village, but it is such a requirement, or police regulation of the state, that would benefit the state and the citizens at large, that there be somebody to take control and be responsible for conditions that may arise as contemplated by this statute. This will also bear on the next question that we will consider.

This law and the establishment of a board of health is a police regulation, and may be so characterized. It is mandatory, and the Legislature has imposed this duty, and the council of each city is required to establish such a board. If so, then the council are to perform certain duties, and certain officers that may be appointed and employed are not to serve the public gratuitously. Their services are to be fixed and regulated by the board thus created. Then the council’s duties are pointed out by statute, Section 2140, Revised Statutes, as follows:

“When expenses are incurred by the board of health, under the provisions of this chapter, it shall be the duty of the council, upon application and certificate from the board of health, to pass the necessary appropriation ordinances to pay the expenses so incurred and certified; and the council is hereby empowered to levy, subject to the restrictions contained in the ninth division of this title, and set apart the necessary sum to carry into effect the provisions of this chapter.”

There are some further duties that are also mandatory. It is not left discretionary with the council when these expenses have been incurred. Such expenses as are contemplated by Section 2115, Revised Statutes, the services, and salary of a health officer, these are expenses that are contemplated or may be contemplated under this section of the statute. These expenses have been incurred, and they have been certified, and it is the duty now of the council to make provision for them, and they have refused so to do. The contention, or legal excuse offered why the council will not pay was, that there was no contract made for the employment of this health officer, as required by Section 2702, Revised Statutes, namely, “that no contract or obligation shall be entered into for the disbursement of public funds unless the proper officer certifies the funds on hand for the payment of such contract or such obligation. ’ ’ That is the one and only vital question we have in this case. Then the first inquiry would arise, is the service of this officer such as is contemplated by the law as coming within the provisions of Section 2702, Revised Statutes If not, then that objection by the council for not making the appropriation will not avail. We think that that question has been decided, yet we know there is some uncertainty about it. We think that the case of Wilson v. Cincinnati, 19 Bull., 10, is significant and pertinent to the question we have now under consideration. Peck, J., says:

“This is an action to recover rent claimed to be due from the city for the use of a building known as the Armory building, situated on Court street. Under an act of the Legislature requiring the city of Cincinnati to provide an armory for the militia, the city authorities made a lease of the building for the term of five years, and put the first regiment in possession, and' the regiment continued in possession during the term of the lease, and for a large part of the term the city paid the rent. ”

Toward the latter part of the term the finances of the city got into such a condition that there was no money to pay the rent, and then certain questions were raised as to the validity of the contract of lease, under what are knoivn as the Worthington and Burns laws, Sections 2699, 2702.

Those questions were reserved on demurrer to the general term, and there it was decided that the allegation that when the lease was made there was no money in the city treasury specially set apart to meet the expenditure to be incurred under it, did not constitute a defense, because the act under which the lease was made (74 O. L., 235, now Section 3085, Revised Statutes), is mandatory, and requires the city to provide an armory for the militia and pay the expenses of the same, while providing no method of raising funds therefor.

We think that the statute we are considering is just as mandatory upon the board of health. That is, not only mandatory upon the city council to create the board of health, but it is equally mandatory upon the board of health to create the office of .health officer and to fix his salary, etc. These are things which the Legislature of the state has required shall be done; and if they are done and the expenses have been incurred, then what is the duty of council under Section 2140, Revised Statutes? That they must make appropriation to meet this expense. There is no discretion in it, and it is not a subject of contract, but is a mandato1 y duty cast upon the board by the state, and they owe that duty to the state.

Without taking more time we are inclined to that view, although we feel the force of the arguments that have been made against this proposition. It is not as clear and free from doubt as we would like to have the question. But we may make this further observation — this court is somewhat committed to this line of decisions whether right or wrong. We had a case in Newark at our last term, when the smallpox was prevalent in that city. A physician had been selected and detailed to take charge of the smallpox patients. One of the questions in that case was the undue action of the board, and the question was raised whether a majority of the board, a quorum, could make such arrangements. We held in that case that they could, and we think the authorities bore us out in that conclusion. That question is perhaps out of this case, but if it were in, we would hold in this case, that it was of such a character that a majority of the board would be competent to make arrangements for the appointment of this officer and prescribe his duties and fix his salary. But the principal question in that case was, after he had incurred these expenses, and the services had been faithfully rendered, and there was no dispute as. to the amount, when it was certified to the council of the city of Newark, they refused to pay it or make appropriation for it. Suit in mandamus was brought, and the question as to there being no certificate that the fund was in the treasury for the payment of these services was raised. Upon full consideration at that time we came to the conclusion that that was not necessary, it was not such a ease as came within the purview of the section of the statute that I have already referred to. So we issued a peremptory writ of mandamus to compel the city council of Newark to make an appropriation to pay the services of this physician. That case is in the Supreme Court. If we were right then we are right now. If wrong then, perhaps we are equally wrong now. It is the duty of the court to be consistent and take chances of reversal, and we will render the same judgment and decree we did there — a peremptory writ will be issued, and costs to follow.

A. A. Thayer and Mr. Young, for plaintiff.

A. Pomerene and Solicitor Howell, for defendant.


text:
    ACTS INTENDED TO INDUCE A CONFESSION OF CRIME.
    [Hamilton County Circuit Court.]
    Frederick Geiger v. The State of Ohio.
    Decided, February 1, 1904.

      Confession of Crime — Improper Inducements — Which Did Not Induce the Prisoner to Confess — Testimony of Child Four Years of Age— Competent for the Purpose of Showing that Defendant Acquiesced in Statement Made hy Remaining Silent — Action of Police Officers in Attempting to Secure a Confession — Denial of Request for Counsel — Jury Commissioners Act Valid — Irregularities in Selecting Grand Jury — Signature of Foreman to Indictment.

    1. An offer of help “if he would like to relieve hi smind,” made by a police judge to a prisoner charged with murder and awaiting his preliminary trial, is an inducement to make a confession, but is. not prejudicial if the statement subsequently made by the prisoner was not induced by such offer, but was in fact voluntary.
    2. A statement made by a child four years of age in the presence of his father and a chief of police, tending to inculpate his father in the murder of his mother, is admissible for the purpose of showing that the prisoner acquiesced in the statement by remaining silent.
    3. A refusal to permit a prisoner to confer with counsel, at a time when police officers were endeavoring to secure a confession from him, is not a matter which a reviewing court will consider, unless it distinctly appears in the record that in consequence of ill treatment by the police he was dazed, confused or unconscious, and therefore unable to understand the questions put to him.
    4. The act of September 30, 1902 (96 O. L., 3), providing for the appointment of jury commissioners, confers power of an administrative character, and is not judicial within the meaning of Section 1, Article IV of the Constitution; nor is it unconstitutional because it provides that only judicial freeholders shall be appointed commissioners.
    5. Mere irregularities in the selection of grand jurors must be taken advantage of, if at all, by challenge for cause, and can not be pleaded in abatement.
    6. It is not fatal to an indictment that the foreman signed it J. P. Clark, instead of John P. Clark, the name appearing on the venire, for the court appointing the foreman is presumed to know his identity.

      Gieeen, J.; Jelke, J., and Swing, J., concur.
   Under an indictment charging the plaintiff in error with murder in the first degree, he was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary of the state of Ohio at hard labor during his natural life.

The chief ground of error alleged is the admission in evidence of certain declarations or admissions made by the prisoner after his arrest in the presence of police officers having him in custody ; the one being a declaration made in response to questions put to him by William H. Lueders, Judge of the Police Court, the other being an admission or acquiescence by silence in a charge made by his infant son, Stephen Geiger, in the presence of James Casey, Inspector of Police.

In the first instance, Judge Lueders made the following statement:

‘ ‘ I said to him that if I could do anything for him or help him or relieve his mind in any way that I should be glad to do so, and then he said he would see me in the morning, or I said I would see him in the morning.
“Q. (By Counsel). You said to him if you could do anything for him you would be glad to do so ?
“A. Yes, sir.
‘ ‘ Q. That you would do all in your power for him to ease his mind?
“A. Yes, sir.
‘ ‘ Q. And anything you could do for him you would ?
“A. I did.
‘ ‘ Q. He knew at that time you were a judge ?
“A. He certainly did.”
The next morning the following occurred:
‘ ‘ I said, * good morning. ’ I asked him if he had anything to say. He said, my wife is dead, I have nothing to fear, I have nothing to say.”

An offer of help to a prisoner under such circumstances made by a judge of the police court would ordinarily inspire hope in the mind of a prisoner and induce him to make a statement concerning the crime for which he was held; but while it was calculated to induce such statement, it appears that the prisoner in this case was not so induced. In the first place, when the offer of assistance was made, nothing was said by the prisoner other than that he would see the witness in the morning, and no reference was made to the conversation of the first day when they met on the following morning. It is, therefore, less probable that what he did say on that morning was induced by the tender of assistance made by Judge Lueders.

In the second place, the statement itself shows that the prisoner was not induced to make it by reason of the inducements offered of help, but rather in answer to the question whether he had anything to say, and the answer given is equivalent to saying, I have nothing to say, because my wife being dead, 1 have nothing to fear.

The statement made by the witness, - Judge Lueders, to the prisoner contains no suggestion of a threat, but rather of hope that the prisoner through him might obtain help. In the case of William Spears v. The State of Ohio, 2 O. S., 584, the syllabus contains the follow propositions:

“No confession can be received in evidence in a criminal case, unless it was voluntary.
“A confession induced by hope or fear, excited in the mind of the prisoner by the representations or threats of any one, is not to be considered as voluntary.
“The question in every case, where a confession has followed representations or threats, is, was it produced by them ? ’ ’

Applying the principles announced in this ease to the facts before us, we are constrained to hold that while inducements were not wanting, the statement made by the prisoner was not produced by them, but on the contrary was voluntary.

The other alleged error involving an admission of the prisoner, occurred while James Casey, Inspector of Police, was on the witness stand, and the question was asked by the prosecuting attorney, as follows:

“I will ask you to state what the boy said.
“ (Objected to by counsel for defendant.)
“Mr. Shay: I now ask that I be permitted to examine the witness on his voir dire.
“(Motion overruled, and counsel for defendant excepted.)
“Mr. Shay: I object to its competency.
“ (Objection overruled, and counsel for defendant excepted. )
"Mr. Shay: I expect to prove upon my cross-examination, if permitted so to do, of this witness that the child was of delicate years, only four years of age, and that he had said that the declaration that he made to the police, in which he said that his father hurt his mother on that night, was instilled into him by his uncle on the night after they left the house where his mother was dead; that he was asleep and did not see it, and did not know anything of it or concerning it; that the child is but four years of age, and does not understand the nature of an oath and would be incompetent as a witness in this case; that the defendant was incarcerated in the jail on York street at about 12 o’clock on Thursday night, after the alleged death of his wife; that he was kept up by a constant jabbing and relay of police officers that night and not permitted to sleep, and brought out two or three different times before the police officers and the witness upon the stand, James Casey, who was at that time acting as superintendent of police, against his will, and that he objected to being brought before the said chief of police; that he demanded the right and privilege of seeing counsel, which was refused him; that his counsel, Messrs. Shay & Cogan, called at the office of Mr. James Casey to see the prisoner, and they were refused admission to him, and that this inquisitorial proceeding was had in this manner, against the wish of the defendant and against the wish of his counsel, and his counsel excluded from being present, and that it was no voluntary appearance upon his part, all of which this defendant will be able to show if permitted so to do.”

Clearly the court was in error in overruling the motion of counsel for defendant for permission to examine the witness when he was about to relate the statement made by the boy, Stephen Geiger, in the presence of his father, the prisoner, charging him with assaulting his wife, the deceased, with a pair of scissors, but it does not follow that the error was prejudicial, unless the facts which counsel for the defendant offered to prove when he asked for permission to cross-examine the witness make it so. In the ease of Rufer and Egner v. The State of Ohio, 25 O. S., page 464, the third proposition of the syllabus is as follows :

"Where, on a criminal trial, a witness is offered by the state to prove a confession made by the defendant, to the admission of which testimony the defendant objects on the ground that the confession was not voluntary, it is the right of the defendant to inquire of the witness and prove his objection before the confession is given in evidence; it is error for the court, in such case, to refuse him leave to make such examination until after the examination in chief has been concluded and the confession given to the jury.
“4th. A judgment in such ease, however, will not be reversed for refusing the defendant leave to show, by preliminary proof, that the confession was obtained by improper inducements, unless the facts constituting the alleged inducements, as proposed to be proved, be set out in the record. ’ ’

The first set of facts offered to be proven by counsel in this case related to the competency of the child as a witness; but the statement of the child was not offered as substantive proof of the crime charged, but only to show that the prisoner, in whose presence it was made, acquiesced by his silence. It has been held in the case of Richards v. The State, 82 Wis., 172, in the fourth proposition of the syllabus that—

“Inculpatory statements, made in the presence and hearing of one accused of crime, which he, having opportunity to do so, does not deny, and the truth or falsity of which is within his personal knowledge, are admissions of the accused by acquiescence, and as such admissable in evidence, although such statements were made by a person not competent to testify in the case. ’ ’

Another set of facts, among those offered to be proven, relate to the truth of the statement made by the boy. But whether true or false, is one of the vital questions involved, and if false called all the more for a, response by the prisoner. Other facts relate to his imprisonment or alleged barbarous and inhuman treatment by the police officers having him in charge, but there is no statement that the prisoner, by reason of the loss of sleep or otherwise, was unable to understand or did not hear the statement made by the boy. In support of the objection to the admission of a statement made in the presence of the prisoner under such circumstances, counsel has cited the case of Bram v. United States, 168 U. S., page 532. The facts in that case are, however, different from those in this ease, in that the prisoner there made a statement in response to the questions of the police officer, and the court held that such statement was not a voluntary confession. But in the opinion, page 563, it is said:

“Indeed, the implication of gnilt resulting from silence has been considered by some state courts of last resort, in decided cases, to which we have already made reference, as so cogent that they have held that where a person is accused of guilt, under circumstances which call upon him to make denial, the fact of his silence is competent evidence as tending to establish guilt. It must not be considered that by referring to these authorities we approve them.”

The argument in that ease proceeds upon the theory that, the prisoner is protected by a constitutional provision that no person shall be compelled in any criminal case to be a witness against himself, and that while under arrest and questioned by a police officer he would be impelled to speak either for fear that his failure to make answer would be considered against him, or of hope that if he did reply, he would be benefited thereby. It is difficult to see why the admission of such statements is not an evasion of this constitutional provision intended for the protection of the prisoner. ■ But, however strong the reasoning of the court in that ease may be, the question is not an open one in this state, as the Supreme Court has held in the case of Murphy v. The State, 36 O. S., 628, as follows:

“Where two persons, charged with larceny, having stolen property in their possession, were taken in custody by a police officer, the declarations of one of them, assuming to speak for and implicating both, made to the officer in the presence and hearing of the other person charged, who remained silent, are competent evidence for the state on a separate trial for the latter” — relying upon Kelly et al v. People of the State of N. Y., 55 N. Y., 565, of which the syllabus is as follows:
“Upon a criminal trial, evidence that the accused, when charged with the offense, or when declarations touching his guilt were made in his presence and hearing, remained silent when it would have been proper for him to have spoken, is competent, and it is no objection to the admission of the evidence that the accused was, at the time, under arrest. ’ ’

Although the case of Bram v. The United States, and other cases in many other states held that such testimony is inadmissable, we are, of course, bound by the decision of our own Supreme Court. We do not wish to be understood, however, as approving the alleged ill treatment of the prisoner by the police. The zeal of the police officers in the discovery and punishment of criminals as manifested by fair and honorable means, is worthy of the highest praise, but when accompanied by torture and persistent and unfair efforts to entrap the prisoner and manufacture testimony against him, not only impedes and tends to defeat justice, but deserves the condemnation of all good citizens.

Other facts, which defendant through his counsel offered to prove, were his demand for counsel and the request of Messrs. Shay & Cogan to see the prisoner. It does not appear for what purpose he wished counsel at that time, nor that he was in need of advice from any source except as it may be inferred from the alleged ill treatment accorded him by the police. If he were dazed, confused or unconscious by reason of such treatment, and therefore unable to understand the questions put to him, such facts should distinctly appear in the record, and not be left to mere inference.

We are of opinion, therefore, that the court did not err prejudicially in receiving in evidence the statement of the boy, Stephen Geiger, and the fact that the prisoner said nothing in reply.

Many other errors are assigned, but the following only are relied upon: The objection that the act of September 30, 1902 (96 O. L., 3), to provide for the appointment of jury commissioners is unconstitutional and void in that it seeks to confer judicial powers, is without merit. Although the power conferred requires the exercise of judgment, it is administrative in character, and not judicial within the meaning of Section 1, Article IY of the Constitution of the state. Nor is it unconstitutional because it provides that only judicious freehold electors shall be appointed as jury commissioners? It has uniform operation throughout the state, and affects alike all the members of the class designated.

The objection to the manner of selecting and drawing certain grand jurors is also without merit. Mere irregularities must be taken advantage of, if at all, by challenge for cause, and can not be so pleaded in abatement (Huling v. State, 17 O. S., 583).

Shay & Cogan, for plaintiff in error.

Hoffheimer, Morris & Sawyer, Prosecuting Attorneys, for defendant in error.

It is further claimed that the indictment is not signed by the foreman of the grand jury, John P. Clark, but by J. P. Clark, and therefore is not a true bill. This variance is not fatal, for the court appointing the foreman is presumed to know his identity (Whiting v. State, 48 O. S., 220).

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