author: WILDMAN, J. KINKADE, J.,

text:
    ERROR — MORTGAGES—PARTIES.
    [Lucas (6th) Circuit Court,
    April 4, 1908.]
    Parker, Wildman and Kinkade, JJ.

      United States Mortgage & Tr. Co. v. Peter Anderson et al. United States Mortgage & Tr. Co. v. Rosewell E. Messenger et al.
    1. Outstanding Claimant Proper Party in Foreclosure.
    Foreclosure proceedings, under the Ohio statutes, contemplate appraisal and sale of the entire land mortgaged and not merely the equity of redemption; and, so as to convey title without cloud to the purchaser at judicial sale, all persons having claims against the property are made parties, including therein an outstanding claimant, although deriving no title, nor claiming such, from defendant in possession or his immediate predecessors in title.
    .2. Order of Reversal by Federal Appellate Court not Binding on State Court.
    A judgment by the federal circuit court of appeals reversing the federal circuit court having original jurisdiction of the controversy and remanding the cause for new trial, is not a final order or conclusive adjudication binding on a state court.
    [Syllabus approved by the court.]
    Appeal from Lucas common pleas court.
    B. A. Hayes, for plaintiff.
    O. B. Snider, for Emily 0. Butler.
    C. H. Trimble, R. P. Cary and C. A. Thatcher, for Anderson. King, Tracy, Chapman & Wells and C. W. Everett, for Messenger.

      See also, Anderson v. Realty Co. 29 O. C. C. 267, and Anderson v. Messenger, 15 O. F. D. 214 [146 Fed. Rep. 929],

   WILDMAN, J.

In these two cases, which were consolidated, two mortgagees, the United States Mortgage & Trust Company and Miss Emily 0. Butler, seek to foreclose mortgages upon property with regard to which there has been much controversy in the courts; the. rival claimants for the property being Rosewell E. Messenger, at present in possession, and Peter Anderson.

Tbe question was made before us early in the consideration of the eases in this court, to which they were brought by appeal from the -court of common pleas of this county, as to whether Peter Anderson, wbo is not in possession of the property, but who claims to be the ■owner, may be a party in a suit to foreclose mortgages and marshal the liens and sell the property. The demurrers to the petitions setting up this misjoinder were overruled by the court, the majority of the court, entertaining the opinion that an outstanding claimant, although deriving no title from Rosewell E. Messenger and not claiming such, was. a proper party in a suit to foreclose the mortgages and sell the land. Recognizing the difference of view entertained by the courts of various, states, the judgment of a majority of this court has been, and still is, that our statutes contemplate the appraisal and sale of the entire land in a foreclosure proceeding, and not merely the equity of redemption; that it is the policy of the Ohio law to convey a title to the purchaser at a judicial sale without clouds upon .it, if it be possible to avoid them, by bringing into court all parties who have claims against the property. The court united in overruling the demurrers to the petitions, but one of the members of the court based his view upon another ground.

Passing, then, this question as to whether Anderson was a proper party to these suits, we come to the consideration of the various matters which are made contention between Anderson and Messenger, and also between the one defendant or the other or both and the plaintiff.

We are none of us disposed to accept the view of Anderson that there has been an unlawful collusion between these mortgagees, or either of them, and Messenger, to retain the adjudication of the important controversy which has arisen in the state court. That there is a desire on the .part of Messenger, and perhaps those claiming under him, to conduct this litigation in the state court, may be entirely true; and it is equally true that Anderson is evidently solicitous to conduct it in the federal court, each party relying to some extent upon favorable decisions which have been already obtained, in one court in favor of Messenger, and in the other in favor of Anderson.

In a case between these parties, Anderson v. Messenger, 15 O. F. D. 214 [146 Fed. Rep. 929; 77 C. C. A. 179], there is a substantial recital of the history of transactions involving the title to this property, and in a decision rendered by this circuit court, Anderson v. Realty Co. 29 O. C. C. 267, reference was made to the recital in the federal court as to such history. It is not necessary now for this reason to attempt any resume of the facts involved in the controversy.

Some new evidence has been offered upon the trial before us, but I will not take time to review it. It bears especially upon the question, whether or not a certain indebtedness from Charles Butler to. Henry Anderson was ever entirely paid; and also, whether a deed made by order of court to Henry Anderson was designed to convey •an absolute title, or whether he held the property in-trust as his security for the payment- of the indebtedness referred to. There is no evidence newly offered that I now recall that bears upon any other controversy between the parties.

Prior to the former consideration of the controversy between Messenger and Anderson by this court, the judgment of the United States circuit court, of appeals, Anderson v. Messenger, supra, had been rendered, but no claim was made to us at that time that such judgment in the federal court in any way precluded our consideration of the case before us. This was a proceeding in error to reverse a judgment which had been rendered in favor of Messenger and against Anderson in the court of common pleas, and involved an examination of the facts disclosed to the court of common pleas tó determine whether the judgment of that court in favor of Messenger was justified. We have now before us two claims of prion adjudication: On the one hand, a claim in behalf of Anderson that the judgment in the federal court to which reference has been made was a final adjudication of the questions of law now litigated, and that this court is estopped on the principle of res adjudicata from entertaining the claims of Messenger or those of his mortgagees; while on the other hand, it is insisted by counsel for the mortgagees and for Messenger that the original judgment rendered by the court of common pleas of this county on March 31, 1906, a date prior to the judgment of the federal circuit court of appeals, was itself a final adjudication of the controversy and that that judgment has never been disturbed, but on the contrary, was affirmed by this court so as to be preserved in full force and validity. As to this last contention, we are not altogether satisfied with the condition of the pleadings to support the claim of Messenger as to res adjudicata.

We are quite clear that the judgment of the federal court of appeals was not a final judgment. The nature of that judgment and its effect constitute the most important of the questions which have remained for our consideration. It was not a final judgment, because the proceeding was in the federal court of appeals to review a judgment which had been rendered in the United States circuit court., and upon the conclusion of the consideration of the case by the court of appeals the cause was remanded to the circuit court for a new trial. ¥e entertain no doubt that when so remanded the circuit court had full jurisdiction, not only to receive evidence which had been received under the issues presented to the circuit court of appeals, .or any other relevant evidence, but also to permit amendment in its discretion of the claims of the litigants; and indeed it has been said to us that a new issue was made in the United States circuit court — an issue which has not yet been there determined, to wit, the claim of Messenger that the judgment of the court of common pleas of Lucas county, Ohio, constitutes a final adjudication of the controversy between Messenger and Anderson. Inasmuch also as new evidence has been offered to us, as. already stated, it may be deemed highly probable that new evidence will be offered in the United States circuit court as to the nature of' Henry Anderson’s title, upon the question whether the deed to him was a trust deed or conveyed an absolute fee simple, and also, whether, if it was a trust deed, the conditions attaching to it had been fully satisfied. It is possible that in the United States circuit court there may be new evidence in aid of the construction of the will of Henry Anderson. So that all these matters have been preserved for contention between the parties and the introduction of evidence and the amending of pleadings, by the judgment of reversal and the mandate of the circuit court of appeals returning the cause to the circuit court for a new trial.

Counsel for Anderson, among citations which I will not take time-to review, cites the case of Haley v. Kilpatrick, 104 Fed. Rep. 647 [44 C. C. A. 102], in which it was held, as appears by the first paragraph of the syllabus:

“A second appeal or writ of error in the same case only bring» up for review the proceedings of the trial court subsequent to the-mandate, and does not authorize a reconsideration of any question, either of law Or fact, which was considered and determined on the-first appeal or writ of error, notwithstanding a contrary decision of such question in the meantime by a state court in a different case.”

Much reliance is placed by counsel upon this ease, and in courtesy we should give attention to it with a view to see what bearing it has upon our action.

What was “considered and determined” in the federal court of appeals in the case which I have cited ? And, I might add, in a hearing of a second like proceeding to reverse the circuit court’s judgment, in which again the circuit court of appeals sustained the contention of the plaintiff in error, Anderson, and again remanded the cause to the circuit court for a new trial?

There is no lack of decisions of the federal court, and we have examined a number of them in addition to those cited by counsel, holding substantially that a reversal of the judgment of a lower court, either by the Supreme Court or by the court of appeals, is not a final adjudication of the controversy. It does seem to be held, in some of these adjudications, as indicated in the case of Haley v. Kilpatrick, supra, that the question which was in fact considered and determined' in the judgment of the appellate court will be binding, not only upon that court in any future adjudication, but also upon the subordinate courts, and that it is not merely a matter falling under the principle of stare decisis, a principle enunciated which is to be received and considered with respect, but not having a conclusively binding authority.

It is urged by counsel for Anderson that the language of the mandate of th'e circuit court of appeals conclusively makes the opinion rendered by the court, showing certain conclusions as to the facts and' law, a part of the judgment of the court. The language of the mandate in each of the two cases wherein the circuit court of appeals rendered judgment, so far as this question is concerned, was as follows:

“On consideration whereof it is now here ordered and adjudged' by this court that the judgment of the said circuit court in this- cause' be, and the same is hereby, reversed with costs, and the case is remanded to the said circuit court with directions to award a new trial. You therefore are hereby commanded that such proceedings be had" in said cause in conformity with the opinion and judgment of this: court as according to right and justice and the law of the United States ought to be had, the said writ of error notwithstanding.”

Emphasis is placed upon the use of the word “opinion” in the-mandate. It is contended that by the phraseology used the opinion was-made a part of the judgment; that the lower court was bound to follow the opinion as well as the judgment, and upon any attempted litigation of the cause in any other court, whether of the United States; or any state, that opinion must be deemed to express the law of the-ease and the conclusion of the court as to all facts in controversy, unless such conclusion as to the facts should be disturbed by additional evidence upon any rehearing in the court below. This contention has-been of sufficient interest and importance to justify our search of some-of the federal authorities to determine whether the views "entertained by counsel for Anderson in this respect are well founded.

The case of Smith v. Adams, 130 U. S. 167 [9 Sup. Ct. Rep. 566; 32 L. Ed. 895], gives us the holding of the federal eourt_of last resort that,

“A judgment of a lower appellate court which reverses the judgment of the court of original jurisdiction, and remands the case to it for further proceedings, is not a final judgment.”

On page 177 Mr. Justice Field, as reported, used these words,, speaking of the judgment of the lower appellate court:

“It not merely reversed the judgment of the district court, but remanded the cause to the court for further proceedings according to law and the judgment of the appellate court. A judgment of a lower appellate court, which reverses the judgment of the court of original jurisdiction, and remands the case to it for further proceedings, is not a final judgment. A judgment of reversal is only final twhen it also enters or directs the entry of a judgment which disposes of the case.”

No express language is used in the mandate, so far as appears, connecting the opinion rendered by the judge of the appellate court with the judgment of the court, but we have some eases where there is some such indication. The case of Tampa Waterworks Co. v. Tampa (City), 124 Fed. Rep. 932, seems to have been a case in which a contention somewhat similar to the one at bar was urged. A brief statement of this case as embodied in the first paragraph of the syllabus seems essential to a full understanding of the views entertained by the court, which was the circuit court of Florida, southern division.

“Plaintiff brought suit in the state court to restrain defendant from enforcing a certain city ordinance fixing the maximum rates which plaintiff should charge for wafer supplied to patrons in defendant city, on the ground that the passage of the ordinance was a violation of plaintiff’s contract rights. A demurrer was filed to the bill, which was overruled, and a final decree of injunction rendered. On appeal the judgment was reversed, and the trial court directed to sustain the demurrer ' and permit further proceedings. On remand of the case the'bill was dismissed, and a final decree rendered, from which plaintiff appealed, in order that the Supreme Court might render a final decision, from which a writ of error might be prosecuted to the Supreme Court of the United States. Pending such appeal plaintiff :sued in the federal court to restrain the city from enforcing such ordinance, on the ground that the rates fixed were unreasonable, and «operated as a taking of plaintiff’s property without due process of law: Held, that the prior suit, while still pending, was not res ju dicata or a bar 1jo the second.”

1 On page 93b, Judge Pardee, who rendered the opinion, says:

“The Supreme Court having remanded the cause for further pro«ceedings, the decision was not final, and although a federal question was clearly involved no writ of error to review the same in the Supreme Court of the United States was permissible.”

And towards the bottom of the same page he uses this language:

“The decree of the Supreme Court on the former appeal was as follows:
“ ‘The interlocutory decrees granting the primary injunction and overruling the demurrer to the bill, a$ well as the final decree perpetuating the injunction and awarding costs against the city,- are reversed, .and the cause is remanded with directions to sustain the demurrer to the bill and for such further proceedings as may be agreeable to equity practice and consistent with'this opinion.’ ”

And then the judge, having made this quotation, says:

“It is, not'necessary to cite further authority to the effect that a decree of an appellate court remanding a cause for further proceedings is not a final decree, and cannot be sustained as res judicata in any other court. Certainly, the views of judges, as expressed in opinions and not embodied in a decree, are not res judicata. Such views may be conclusive on the court which announces them, and. on inferior courts of the same jurisdiction, but they are subject to doubt and denial in other courts.”

As long ago as 1840 in a decision rendered in which Taney, J., delivered the opinion of the court, we have an indication of the extent to which the Supreme Court of the United States deemed that the opinion of a judge expressed in connection with a judgment rendered by the court might be considered and used by the court to which a cause was remanded. The ease is West v. Brashear, 39 U. S. (14 Pet.) 51 [10 L. Ed. 350] :

“The mandate of the Supreme Court to the circuit court must be its guide in executing the judgment or decree on which it issued.”

I invite especial attention to this language:

“The mandate is the judgment of the Supreme Court, transmitted to the circuit court; and’ where the direction contained in it is precise and unambiguous, it is the duty of the circuit court to carry it into execution, and not to look elsewhere for authority to change its meaning. But when the circuit court are referred to testimony to ascertain the amount to be decreed, and are authorized to take more evidence on the point, it may sometimes happen that there will be some uncertainty and ambiguity in the mandate; and in such a case, the court below have unquestionably the right to resort to the opinion of the Supreme Court, delivered at the time of the decree, in order to assist them in expounding it.”

An examination of the case will show that embodied in the mandate was a somewhat uncertain statement of what was to be done in the, court below, and that if was almost imperatively necessary for the guidance of the court to which the cause was remanded, that it should have recourse to the opinion for a thorough understanding of the mandate, but we cannot escape the conclusion of the Supreme Court that the judgment of the appellate court was not the opinion or any part of it, but that it was the mandate itself, and the Supreme Court held clearly that if a mandate is unambiguous and precise, it is the duty of the lower court to carry it into execution and not to look elsewhere for authority to change its meaning.

If that be true, a fortiori it would seem that the opinion is not , a conclusive adjudication to be followed and obeyed by courts of other jurisdictions, as for instance, the court of a state as distinguished from the federal court.

The ease of McComb v. Knox Co. (Comrs.) 4 O. F. D. 345 [91 U. S. 1; 23 L. Ed. 185], is a case which went to the Supreme Court from this state, in which the Supreme Court of Ohio had reversed the decision of a lower court and remanded it. The lower court followed the views of the Supreme Court, rendering the kind of judgment indicated in the opinion, and an attempt was then made to carry the case, which involved some federal question, to the Supreme Court of the United States, and it was there held as I read:

“The judgment of the supreme court of a state reversing that of' the court of common pleas and remanding the cause for further proceedings according to law is not final; nor can the judgment subsequently rendered by the inferior court be re-examined here.”

Of course that last clause is based upon the fact that a case cannot be carried to the Supreme Court of the United ■ States to reverse" the judgment of a court which is not of final resort in the state. On page 346, Waite, J., says in his opinion:

“The court of common pleas/ is not the highest court of the state;, but the judgment we are called upon to re-examine is the judgment of that court alone. The judgment of the Supreme Court is one of' reversal only. As such, it was not a final judgment. * * * The-common pleas was not directed to enter a judgment rendered by the Supreme Court and carry it into execution, but to proceed with the-case according to law. The Supreme Court, so far from putting an end to the litigation, purposely left it open. The law of the case upon the pleadings as they stood was settled; but ample power was left in the common pleas to permit the parties to make a new case by amendment. In fact, the cause was sent back for further proceedings because of the suggestion by McComb that he might want to present a. new defense by amending his answer.”

It seems that he did not amend his answer and that the judgment of the'Supreme Court was followed and respected by the court below.

I cite, also, Clark v. Kansas City, 172 U. S. 334 [19 Sup. Ct. Rep. 207; 43 L. Ed. 467], a case which went to the Supreme Court of the United States from the supreme court of the state of Kansas. ' The syllabus reads:

“As the laws of Kansas permit an amendment of the plaintiff’s pleadings in the court below after the overruling by the supreme court of a demurrer to them, and as the supreme court of the state, in deciding this case, did not take that right away, it follows that the judgment of the state. court was not final and that this case must be dismissed for want of prosecution.”

On page 336, McKenna, J., speaking for the court, says:

“The defendants in error, however, object to the jurisdiction of this court, and urge that the judgment appealed from is not a final one, and is not therefore reviewable in this court.

“It is further urged that the record does not show that anything was done in the lower court after decision in the Supreme Court, but that error is prosecuted directly to the judgment of the Supreme Court,, and that that determined only a question of pleading, and that its. direction has not yet been acted on, and that no judgment of any kind has been entered against Wyandotte township or school district-No. 9.
“The law of Kansas prescribing action on demurrer is as follows: ‘If the demurrer be sustained, the adverse party may amend,, if the defect can be remedied by way of amendment, with or without, costs, as the court, in its discretion, shall direct.’

“In Bostwick v. Brinkerhoff, 106 U. S. 3 [1 Sup., Ct. Rep. 15, 27 L. Ed. 73], it was decided that ‘the rule is well settled and of longstanding that a judgment or decree to be final, within the meaning of that term, as used in the acts of congress giving this court jurisdiction on appeals and writs of error, must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered,’ for the support of which many cases were cited; and further: ‘If the judgment is not one which disposes of the whole case on its merits, it is not finaL Consequently, it has been uniformly held that a judgment of reversal, with leave for further proceedings in the court below, cannot be brought here on writ of error. ’ ’ ’

With the view which we entertain that the judgment of the federal court of appeals cannot be deemed a final adjudication so as to-bind us, it is not necessary that we should pay attention to the contention of counsel for Messenger that even if it be final it is so only as to the legal title and right to possession of the property and does not affect any equitable claims of Messenger, a contention which was ably argued, .and supported by the case of Witte v. Lockwood, 39 Ohio St. 141.

Although as I stated at the outset some new evidence has been offered to us which was not disclosed in the record when we originally passed upon the title in Anderson v. Realty Co., supra, we are not thereby led to abandon the conclusions as 'to the facts and law which we then entertained. On the contrary, at least so far as concerns the nature of the title originally taken by Henry Anderson, we feel fortified in the opinion which was then expressed and the judgment thereon rendered. We are not disposed to depart from those conclusions. Our view is now, as then, that Henry Anderson took this title in trust to secure the payment' to him of the indebtedness from Butler; that by the will of Henry Anderson, Peter Anderson, his grandson, took no title; and .also that the trust has been discharged by full payment of the indebtedness from Butler to Henry Anderson, and that the title should be made .absolute in Messenger by reason of the intermediate conveyances from the trustees and heirs of Henry Anderson to Bronson, and from Bronson’s heirs to Messenger.

In the suit, ás it has been presented to us at this time, we have been somewhat embarrassed by the fact that injunctions have been Allowed by the federal circuit court to restrain the litigation in the state court as' to a large part of the property described in the mortgages. We feel quite clear that neither the United States Mortgage & Trust Company nor Emily O. Butler are bound by those restraining orders, and it has seemed difficult in attempting to enforce the mortgages by foreclosure, by marshalling the liens and sale of the real estate and distribution of the proceeds, to avoid any interference with the questions sought to be litigated in the federal court. We entertain the highest respect both for the federal circuit court and court of .appeals, and have no wish or disposition to enter into any controversy with either, or any difference of view, and from all that has been said and done by counsel upon either side in the litigation before us, we have gathered the impression that there is no disposition to commit any breach of the order which has been made to restrain the parties against whom the order was directed.

Our finding will be as I have indicated. The judgment will be that the mortgages of the United States Mortgage & Trust Company and Miss Emily 0. Butler be foreclosed; that the liens be found according to their dates; the land appraised and sold according to law; tbat the proceeds of such sale be distributed first, to the payment of taxes and costs and the payment of the mortgage lien, and that any residue thereof be held to abide the further order of this court, and' that the plaintiffs and Messenger have judgment for costs against Anderson.

Mr. Everett: How about the quieting of title?

The Court: And as to the prayer of Messenger to have his title ■quieted, the same is granted so far as it concerns the parcels of property not in litigation in the federal court, and as to the residue of the .property, the court reserves its decision, and the cause as to all matters now undetermined will be continued.

Parker, J., concurs.

KINKADE, J.,

dissenting.

I do not concur in the finding by the majority of the court that Peter Anderson is a proper party defendant in this case. In my opinion neither the plaintiff nor any of the cross petitioners in this action can compel Peter Anderson against his will to come into this case and here try out his adverse title with Messenger or with any other party to the action. If Peter Anderson can be compelled to do this in this action, then I agree with the conclusions reached by the court as now stated in the opinion on all other questions which were presented by counsel at this hearing of the ease for our consideration. For the reason stated I desire it noted that I dissent.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    ASSESSMENTS — ESTOPPEL—CONSTITUTIONAL LAW,
    [Hamilton (1st) Circuit Court,
    May 11, 1907.]
    Swing, Giifen and Smith, JJ.
    Cincinnati Bldg. & Deposit Co. v. Cincinnati (City).
    1. Delay in Improvement Does not Relieve Abutting Owner from: Assessment.
    Delay in completing a street improvement does not relieve abutting property owners from assessment, and a mortgagee who has become the1 owner by foreclosure is estopped from denying that the property is not benefited to the extent of the assessment or that it is not valuable enough to stand the assessment, where the mortgagor joined in the petition for the improvement.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 544-599; í Cyc. Dig., “Estoppel,” §§ 407-415; '600-613. — Ed.]
    2. Revised Statute 2272 (see Dan. 3613; B. 1536-222), not Unconstitutional, as to Assessments, when.
    Revised Statute 2272 (see Lan. 3613; B. 1536-222), in so far as it concerns the validity of an assessment for a street improvement which has been duly petitioned for, and promoted by, the abutting owners, is constitutional.

      ISylIabus approved by the court.]
    E. J. Dempsey and H. A. Nieberding, for plaintiff.
    G. H. Kattenhorn, for defendant.
   SMITH, J.

We think the injunction prayed for in this case should not be allowed.

The ordinance for the improvement of Elberon avenue and the assessment for the cost of same against abutting property was duly passed by counsel of the city of Cincinnati and all necessary legislation in reference thereto was taken by it and the board.of administration of the city.

While the completion of the work was delayed from time to time by the board of administration and the board of city affairs of the city of Cincinnati, yet there never was an abandonment of the improvement, .as .council never rescinded its action in passing the ordinance.

As the owner of the property, George F. Meyers, with other property «owners on Elberon avenue, petitioned the city for the improvement of said avenue, said Meyers having theretofore mortgaged the same to the ¡plaintiff, the Cincinnati Building & Deposit Company, who subsequently ¡became the owner of the property by foreclosure. That the property 'owner is bound by said petition, and is estopped from denying that the .property in question is not benefited to the extent of the assessment, or ¡that it is not valuable enough to stand the assessment as levied, see Hendrickson v. Toledo, 13-23 O. C. C. 256; Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194; 76 Am. St. Rep. 428].

That George F. Meyers, while the owner, and after the property was mortgaged, had the right to sign such petition -for the improvement, and thereby estop himself and his mortgagee from claiming lack of ¡benefits, or lack of value of the property to stand the assessment,' see St. Bernard (Vil.) v. Kemper, 60 Ohio St. 244, 253, 254 [54 N. E. Rep. 267; 45 L. R. A. 662],

We cannot hold so far as this case is concerned that original Rev. Stat. 2272 (see Lan. 3613; B. 1536-222) is unconstitutional, so as to relieve the plaintiff of the assessment. Such acts as original Rev. Stat. 2272 (see Lan. 3613; B. 1536-222), at and previous to the passage of the ordinance in question, had been held constitutional, and as the property owners by their petition promoted the improvement that was subsequently carried out, we think the assessment should be sustained.

Swing and Giffen, JJ., concur.


author: WILDMAN, J. PARKER, J.,

text:
    SCHOOLS AND SCHOOL DISTRICTS.
    [Lucas (6th) Circuit Court,
    February 29, 1908.]
    Parker, Wildman and Kinkade, JJ.
    William A. Gosline, Jr., v. Toledo (Bd. of Ed.) et al.
    1. Statutes do not Require Advertisement for Bids nor Letting of Contract for Coal to Lowest Bidder.
    Neither Rev. Stat. 3987 (Lan. 6466), specifically empowering boards of education, among other designated things^ to provide fuel; Rev. Stat. 3988 (Lan. 6468), prescribing advertisement for bids for certain designated supplies and contracts, but omitting mention of fuel; nor Rev. Stat. 4017 (Lan. 6577), requiring the director of schools, where one is chosen, to advertise for bids, etc., without providing when or how he may advertise therefor, requires advertising for bids for coal or purchase from the lowest responsible bidder.
    2. Lowest Priced Coal not Necessarily Most Practical for Heating School ¡ Buildings.
    A broad discretion is reposed in boards of education regarding the purchase of necessary supplies for schools. Hence, in the purchase of fuel, gradation of quality of coal, heating capacity, adaptability to heating apparatus, and experience and skill of janitors and other persons managing school furnaces are essential facts to be considered in making selection therefor, which may render it inadvisable to accept the lowest priced; and where it appears that the board has complied with the just requirement of acting in good faith for the best good of the schools according to the light and understanding of its members, acceptance of other than the cheapest coal will not be enjoined.
    3. Advertising for Trivial Supplies not Required.
    The director of schools under Rev. Stat. 3988 (Lan. 6468) and Rev. Stat. 4017 (Lan. 6577), is not required to go to the expense of advertising for bids for every trivial requirement in the way of supplies by the board.
    [Syllabus approved by the court.]
    Appeal from Lucas common pleas court.
    Marshall & Fraser, for plaintiff.
    C. S. Northup, C. H. Masters, and J. H. Tyler, for defendants.
   WILDMAN, J.

This cause was brought to this court by appeal from the court ■of common pleas. It was a suit by a taxpayer in behalf of himself •and other taxpayers to enjoin the board of education, director of the public schools and the A. G. Blair Company from entering into a 'certain contract for the purchase and sale of six thousand tons of Jackson coal for the use of the schools in the city of Toledo. It is •claimed in behalf of the plaintiff that although the board of education had accepted the bid of the A. G. Blair Company to furnish such coal they were not authorized to do so; that the acceptance of the bid and any contemplated contract in accordance with such acceptance were invalid, as no<, authorized by the statutory provisions relating thereto; and, also, that' the members of the board, in the acceptance of the bid, acted arbitrarily, and not in view of the welfare of the schools.

As to the first claim, it becomes essential to examine to some extent the sections of the Revised Statutes authorizing the purchase of fuel for public schools. The three sections which have some perti-nency are Rev. Stat. 3987, 3988 and 4017 (Lan. 6466, 6468, 6577). The first mentioned section, Rev. Stat. 3987 (Lan. 6466), empowers the board of education of any district first to “build, enlarge, repair and furnish the necessary schoolhouses, purchase or lease sites therefor, or rights of way thereto, or rent suitable schoolrooms, provide all the necessary apparatus and make all other necessary provisions for the schools under its control;” and, second, to provide fuel for the schools and to do certain other things with regard to the fences and shade and ornamental trees of schoolhouse grounds; and to “make all other provisions necessary for the convenience and prosperity of the schools within the subdistriets. ”

It is to be noted that this authority relates to two classes of acts or proceedings, the one the making of permanent improvements or repairs of schoolhouses and furnishing the same, and the other the making provision for supplies, especially the furnishing of fuel for the schools. Revised Statutes 3988 (Lan. 6468) provides that:

“When a board of education determines to build, repair, enlarge or furnish a schoolhouse or schoolhouses” — using substantially the phraseology in Rev. Stat. 3987 (Lan. 6466) as to the first of the two-classes comprised therein — “or make any improvement or repair provided for in this chapter, the cost of which will exceed in city districts, fifteen hundred dollars, and in other districts, five hundred dollars, except in cases of urgent necessity, or for the security and protection of school property, it shall proceed as follows: 1. The board shall advertise for bids” and after the bids are opened and examined shall accept none but the lowest responsible one. Nothing is said in this section about the purchase of fuel. The provision stops short of any' requirement that advertisements shall be made for bids for the supply of coal or other fuel for the schools, and our judgment is that for this reason Rev. Stat. 3988 (Lan. ’6468) does not apply to the proceeding adopted by the board of education in the present case. Nothing in Rev. Stat. 3987 or 3988 (Lan. 6466 or 6468) requires the purchase of coal from the lowest responsible bidder.

By Rev. Stat. 4017 (Lan. 6577), the management ajLd control of public schools of whatever name or character in the district are given to the board of education, with provisions for the appointing of certain subordinate officers or employes. The act provides that “A board' of education in a city district may, at its discretion, elect a director-of schools, who shall serve as such for the term of-two years, unless, earlier removed’, '* * * and any vacancy in this office shall be filled for the unexpired term of such director of schools.” Following this; authority for the election of a director of schools are specific provisions, as to his powers and duties, and a careful examination of the section-discloses that he is given quite broad discretion and large power in-the carrying out of the purposes of this act. Among other things, he is charged with the care and custody of all the property of the-school district, real and personal, except moneys. He is required to-oversee the construction of buildings, in the process of erection, and the repairs of the same. Then comes the provision, which is claimed to relate to the transactions involved in this case:

“He shall advertise for bids and purchase all supplies and equipments authorized by the board. He shall report to the board monthly and oftener if required, as to all matters under his supervision, and' report to the board a statement of its accounts, exhibiting the revenues, receipts, disbursements, assets and liabilities of the board,” etc.

There is no provision in this section as to when or how advertisements for bids shall be made. We have only the general direction that he shall advertise for bids and purchase all supplies and equipments authorized by the board.

We are not inclined to think that the legislature contemplated' that for every trivial requirement in the way of supplies by the board, the director of schools should go to the expense of advertising forbids; because, in many cases, such expense would be greater than the-entire cost of the supplies needed. Taking this clause of the statute-in connection with Rev. Stat. 3988 (Lan. 6468), a construction not unreasonable would require that he should advertise for bids under-such circumstances as are contemplated by that section; in other words, that where bids are required by law, the director of schools is to do the-•advertising for them.

" There is, however, in this section no requirement as in Rev. Stat. 3988 (Lan. 6468), that the board shall accept none but the lowest ’-responsible bid. There is no provision fixing the duties of the direetor-"of schools, after the advertising for bids, except the duty that he-shall purchase all supplies and equipment authorized by the board. We take it that the-board may signify to the director of schools the- ' amount and kind of supplies required, whereupon it becomes the duty •of the director to make the proper purchases, and for this purpose he is empowered to close the contract with the seller. And if the con- • ditions of Rev. Stat. 3987 or 3988 (Lan. 6466 or 6468) would require •the board of education to advertise for bids, it is altogether likely that under the same circumstances, where there is no emergency and the .•amount and kind of property require a letting to a bidder, then the director of schools may likewise be required to advertise for bids. But, •.as already suggested, there is nothing in Rev. Stat. 3987 or 3988 (Lan. 6466 or 6468) that requires any advertising for bids for fuel; and we are unable to find anything in either of these sections in connection with Rev. Stat. 4017 (Lan. 6577) that requires anything of the kind.

But assuming for the moment that this construction may not be the correct one, we have no doubt that the board of education may select the kind of fuel which it desires; it may seek to purchase wood, or it may prefer coal; the heating apparatus in the schoolhouse may ■be adapted to either anthracite or bituminous coal. Surely a broad ..discretion is permitted to the board to determine what kind of fuel it ■will adopt. In the present ease the board of education seems to have ■ concluded that Jackson county coal was better adapted to the uses of •the schools than either of the other classes of coal, with regard to which testimony has been given and the furnishing of which was offered in bids.

It sometimes becomes an exceedingly nice question as to how far a discretion is preserved to public bodies or officers to avail them- : selves of the privileges possessed by individuals to buy the best that there is in the market, or on the other hand, as to how far that power 'is limited by the intent of the legislature to guard the public against improvidence and corruption. In the case of permanent structures ■or the repair thereof, it has apparently been deemed not a difficult matter to obtain definite plans and specifications so that the public body may avail itself of'the lowest offer made by a competent builder to construct according to such plans and specifications. But when it • comes to the furnishing of supplies like fuel for schools, a far more difficult question arises. There are so many gradations of quality or ■ convenience of adaptability to heating apparatus or to the experience of janitors or other persons who manage the furnaces, that to require a board of education or director of schools to buy only that which is .apparently the cheapest in price, would, in many eases, draw too narrowly the lines of discretion in enabling public officers to obtain that -which is best adapted to the uses of the schools.

In the case at bar we have had much discussion and considerable® •evidence as to what was best adapted to the use of these schools, and which kind of coal was the most economical, considering its heating ■capacity and the price at which it was offered. It seems that there was but one bid for Jackson coal, that of the A. G. Blair Company. There were other bids for Pocahontas and Coshocton coal and some •others; and after a consideration of all, and acting in the light of such experience as the board had had in the use of all these different •classes of bituminous coal, a majority of the board concluded that it was better to purchase the Jackson coal offered by the A. G. Blair Company, than to accept any one of the bids which had been offered for other qualities, kinds or grades. We think that they might legally do this, not losing sight, however, of that just requirement that they •should act in good faith and for the best good of the schools, according to their light and understanding.

And this brings us to the consideration of the second question here, whether the claim in the petition has been borne out by adequate proof that they acted arbitrarily, and without regard to the good of the schools. It has been held with almost complete uniformity by the courts, that there is no judicial power to interfere with that discretion which is given to public bodies like city councils and boards of education in the discharge of their duties, unless there is apparently an abuse of such discretion. In the present ease it appears that there was more or less discussion upon the question of the acceptance of one or another of the bids, and a majority of the members of the board decided in favor of the bid of the A. G. Blair .Company for Jackson coal. They had been furnished with a detailed statement made by the director of schools showing certain tests by experience with different kinds of coal, upon the basis of which he seems to have claimed that the Jackson coal was not the cheapest. Among the witnesses called here was Homer T. Yaryan, a gentleman who has had a very large experience in the use of fuels in the conduct of heating plants. He had used in many of these plants not only the Jackson coal but the other kinds of bituminous coal and he expresses his decided view that no reliable test can be made in the manner in which the tests were made by the director of schools, as is claimed to have been done and to be shown by the tabulated statement submitted to the board of comparisons one season with another of coal consumption. Mr. Yaryan says that a drop of ten degrees in the temperature may cause an increase of 50 per cent in the consumption of coal to produce a desired temperature; and, although less coal of one kind might be consumed in a long continued cold season in a particular school, that still the changes of temperature in the one .season or another might so decidedly affect the extent of the consumption of the coal as to. destroy the value of such comparison. It would also seem from'the testimony that the skill of the manipulator of the heating apparatus has some: thing to do with the problem. And Mr. Yaryan says that the use of Jackson coal is attended with less difficulty, requires less experience and skill than does the proper heating of a structure with Pocahontas, coal. The board of education might well take into account such matters a& this in making their choice of fuel.

I might elaborate very much more along this line, in considering the question of. whether the board of education acted in good faith. The party attacking their proceedings takes upon himself the burden of establishing his claim, and we think that the evidence here falls far short of establishing that the board of education acted in bad faith. Indeed, the petition does not quite charge in terms that there' was any corruption or- bad intent. It rather charges, somewhat vaguely, perhaps, that they were careless in the. discharge of their duties, regardless of the good of the schools; that they were arbitrary in the-selection of the bid that was not theGowest responsible one. The evidence,' however, does not lead our minds to the conclusion that they have been so regardless, so careless of the good of the schools as to-justify the finding that there has been an abuse of the discretion confided to them. They are not held to a knowledge of the heating capacity and economy of the Coshocton coal which they may have subsequently acquired in the use of that coal in the schools after their purchase of the Jackson coal offered by the A. G-. Blair Company had been prevented by injunction in the court below. They are held only to-such knowledge as they may fairly be supposed to have had or might reasonably have obtained at the time when they accepted the bid of the A. G. Blair Company; and holding them only to that knowledge, our view is that the burden resting upon the plaintiff to establish his. claim has not been sustained. Our judgment, then, is that the injunction should not have been allowed.

There is another reason why at the present time there should be no injunction. The evidence clearly disclosed that there is no longer any intention on the part of either the board or the director of schools to close any contract with the A. G. Blair Company. The court below rendered a permanent injunction against the entering into of any contract upon the basis of the acceptance of the Blair bid. Both the A. G. Blair Company and the board of education appealed to this court;, at least an official and attorney claiming to represent the board of education filed an appeal bond; but the board of education has disavowed his act and upon its application its appeal has been dismissed. There is here offered in connection with the evidence in the case a very clear indication that the board of education does not intend to enter into any contract with the A. G. Blair Company, and, so far as we are advised, the A. G. Blair Company is not pressing its claim to a contract.

There is no reason to apprehend the doing of the things the preventing of which was the object of the suit; and the only aim of the inquiry before us is to determine whether a judgment for costs which has been rendered against the defendants, including the A. G. Blair Company should stand, and incidentally, whether the plaintiff as a taxpayer was entitled to an injunction at the time of the filing of the suit.

Our conclusion on an examination of the whole matter is, that he was not so entitled to an injunction; that his petition should be ■dismissed, and that the defendant now in court, who has come to this -court, by appeal, is entitled to a judgment for its costs. The judgment will be entered accordingly.

Kinkade, J., concurs.

PARKER, J.,

concurring:

I want to add a word to give my own views about the construction of these sections of the statute that have been referred to by Judge Wildman.

Upon looking into the statutes we find that Rev. Stat. 3988 (Lan. 6468), in substance, if not precisely in its present form, has been upon the statute books a great many years. I have not gone back beyond 1873, but it was there then, requiring that boards of education should advertise for bids in certain cases. The earliest provision that I find for a director of schools is in the statute passed April 25, 1904, 97 O. L. 360. My view of the functions of this officer or employe is that he has certain clerical duties to perform, and that he may exercise certain authority by virtue of the statute, and he may do certain other things under authority derived from the board of education. He shall purchase supplies and equipments as authorized by the board of education, and he is to attend to the clerical work incident to •advertising for bids, in cases where bids are required by the statute, i i. e., Rev. Stat. 3988 (Lan. 6468).

As to the construction to be put upon Rev. Stat. 3988 (Lan. 6468), much light is given by the ease of Board of Education v. drews, 51 Ohio St. 199 [37 N. E. Rep. 260]. My view of the matter i® that advertisement for bids was not required ,in the purchase of fuel, and that the director of schools in purchasing this coal was under the-control of the board of education, and that it was a purchase by the board, or a purchase by a director of schools under authority derived from the board. According to the record submitted he does not seem to have been vested with authority to make the purchase, but only to solicit proposals; and that he should first advertise for bids was not required by the board nor by the statute. His action amounted to simply soliciting proposals. When these bids or proposals came in it became the duty of the board to consider them, and in considering these proposals they were not in any way hampered or controlled by the provisions of the section respecting the acceptance of the lowest responsible bid. Of course they were bound to execute their trust with honesty and fidelity, notwithstanding the absence of such requirement; but we agree that to impeach or invalidate their action in the premises, it is not sufficient to show that the board may have blundered, may have fallen into some error, or that it may not have done the wisest thing possible under the circumstances. Certain members of the board admit on the witness stand that if they had had the light upon the subject at. the time of this transaction that has been thrown upon it since, they would probably have voted for the acceptance of another proposal, either a proposal to furnish smokeless coal, or the proposal that they did afterwards accept. But it is not evident to us that such information was presented to them, or that they were aware that such information was within their easy reach, as would have apprised them that, other of „the bids were more advantageous to the board of education than the one accepted. The evidence submitted upon that subject is-not so clear that it can be fairly said that by failing to avail themselves-of this information they abused their authority to an extent that would render the transaction void, or that it ought to move a court of 'equity to enjoin the contract made.


author: 'TAGGART, J.

text:
    CHARGE TO JURY — INFANTS—MASTER AND SERVANT.
    [Cuyahoga (8th) Circuit Court,
    February 23, 1907.]
    Taggart, Marvin and Donahue, JJ.
    (Judges Taggart and Donahue of the fifth circuit, sitting in places of Judges' Winch and Henry.)

      K. D. Box & Label Co. v. Tommie Caine et al.
    Omissiox in Charge Defining Ordinary Cake to Refee to Age of Minor Plaintiff not Erroneous.
    Where an action on behalf of a minor, brought on account of injuries received in a machine which was feeding, is tried on the theory that the-defendant failed to instruct the plaintiff as to the extra hazard arising from a change in the material which he was feeding into the machine, an instruction is not erroneous because of the omission in his statement defining ordinary care to refer to the age of the plaintiff, if it appear from the charge taken as a whole that the jury were not mislead thereby..
    [Syllabus approved by the court.]
    ERROR to Cuyahoga common pleas court.
    Ford, Snyder & Tilden, for plaintiff in error.
    Cited and commented upon the following authorities: Bailey, Personal Injuries See. 2849; Thompson, Negligence See. 4095; Hettchew v. Chipman, 87 Md. 729 [41 Atl. Rep. 65]; White v. Lithograph Co-131 N. Y. 631 [30 N. E. Rep. 236]; Hickey v. Taaffe, 105 N. Y. 26 [12 N. E. Rep. 286]; Stuart v. Railway, 163 Mass. 391 [40 N. E. Rep-180] ; Lowcock v. Paper Co. 169 Mass. 313 [47 N. E. Rep. 1000]; Sullivan v. Electrical Co. 178 Mass. 35 [59 N. E. Rep. 645]; Park v. Whitney, 148 Mass. 278 [19 N. E. Rep. 161]; Mackin v. Refrigerator Co. 100 Mich. 276 [58 N. W. Rep. 999]; Ogley v. Miles, 139 N. Y. 458 [34' N. E. Rep. 1059]; Bohn Mfg. Co. v. Erickson, 55 Fed. Rep. 943 [5 C. C. A. 341; 12 U. S. App. 260]; Ball. & O. Ry. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816]; Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276]; Wabash Ry. v. Sidles, 64 Ohio'St. 458 [60 N. E. Rep. 576] ; Clev. C. & C. Ry. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633]; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66.
    W. C. Ong, for defendants in error.,
    Cited and commented upon the following authorities: Shamokin Bank v. Street, 16 Ohio St. 1; Burton v. Insurance Co. 26 Ohio St. 467; Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414 [69 N. E. Rep. 738]; Gin. H. & T>. Ry. v. Bailey, 70 Ohio St. 88 [70 N. E. Rep. 900]; Snider v. Young, 72 Ohio St. 494 [74 N. E. Rep. 822] ; Cleveland

      Bolling Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466;,3 L. R. A. 385; Í5 Am. St. Rep. 596] ; Lake Erie & W. By. v. Mackey, 53 •Ohio St. 370- [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. ■640] Citizens Elec. By. ,v. Bell, 26 O. C. C. 691, affirmed, no report, Citizens Elec. By. v. Bell, 70 Ohio St. 482; Breckenridge Co. v. Beagan 12 Ciro. Dee. 50 (22 R. 71); Noden v. Verlenden Bros. 211 Pa. St. 135 [60 Atl. Rep. 505]; Wallace v. Oil Co. 66 Fed. Rep. 260; Williams v. Bailway, 91 Ala. 635 [9 So. Rep. 77]; Bohn Mfg. Co. v. Erickson, 55 Fed. Rep. 943 [5 C. C. A. 341; 12 U. S. App. 260] ; Evans Laundry Co. v. Crawford, 67 Neb. 153 [93 N. W. Rep. 177] ; Mickey v. Taaffe, 105 N. Y. 26 [12 N. E. Rep. 286] ; Small v. Lumber Co. 95 Minn. 95 [103 N. W. Rep. 726] ; Bibb Mfg. Co. v. Taylor, 95 Ga. 615 [23 S. E. Rep. 188]; Steiler v. Hart, 65 Mich. 644 [32 N. W. Rep. 875]; Addicks v. >■Christoph, 62 N. J. Law 786 [43 Atl. Rep. 196; 72 Am. St. Rep. 685]; Evansich v. Bailway, 57 Tex. 126 [44 Am. Rep. 586]; Doioling v. Allen, 74 Mo. 13 [41 Am. Rep. 298] ; Clark v. Homes, 7 Hurl. & Nor. :937; Louisville, N. A. <& C. By. v. Frawley, 110 Ind. 18 [9 N. E. Rep. ■594]; Clev., C. & C. By. v. Crawford, 24 Ohio St. 63Í [15 Am. Rep. ■633] ; Pitts. C. & St. L. By. v. Fleming, 30 Ohio St. 480; Lake Shore ■<& M. S. By. v. Fitzpatrick, 31 Ohio St. 479; Balt. & O. By. v. Whitacre, ■35 Ohio St. 627; Cleveland & E. Elec. By. v. Hawkins, 64 Ohio St. 391 [60 N. E. Rep. 558]; Ohio é Ind. Torpedo. Co. v. Fishburn, 61 Ohio •St. 608 [56 N. E. Rep. 457; 76 Am. St. Rep. 446],

      Affirmed by the Supreme Court, without report, K. D. Box & Label Co. v. Caine, 53 Bull. 108.

   'TAGGART, J.

This ease had its origin in the court of common pleas, by the defendant in error, through one Delbert M. Bader, his guardian, filing .a petition in said court, in substance alleging that he was a minor, inexperienced in the conduct and control of dangerous machines, and that he entered about May ll, 1904, into the employment of the defendant to feed a machine which was being operated by said defendant; that the operation of said machine was dangerous and hazardous; that the defendant failed to instruct him as to the dangerous character* of said employment and the use of said machine. •

The answer of the defendant was a general denial and alleged contributory negligence.

The case was tried purely upon the theory that the defendant had failed to instruct the plaintiff upon the extra hazardous situation that came about by reason of the change of the material.

The case was heard only on the testimony in behalf of the plaintiff below.

It appears from tbis record that there was an exhibition of some appliances used in the court room on the trial, by which the manner of placing slips or pieces of paper board was being demonstrated before the jury, and much of this record is taken up by the testimony of witnesses .apparently demonstrating to the jury the manner in which pieces of the paper board was placed in, and taken out.

On the day this boy was injured he completed the work that he had left over from the day before with the material that was flat; that in feeding this material, the placing of a piece of paper board within the blocks or guides would be indicated to him, not merely by his sense of sight but by his sense of touch, that it had dropped in its place so that it would pass up and be forced upon the knives; that about 7:30 or 8 ■o’clock he finished the work with the flat material; that thereupon he was furnished with other material that was oval; that he thereafter attempted to operate his machine with the new material. In attempting to do this he did not succeed, and a fellow-servant noticing his difficulty, ■came and told him how he should roll it the other way, which would have a tendency to flatten it out. He then proceeded to roll or flatten the oval paper board, and did flatten all that he had upon the table for his use. He had difficulty in dropping this material so that it would fall within the guides and be forced up upon the knives, and as he was putting this oval material in, it would sometimes require him to place his hand down and force the piece of paper board under the guides in ■order to get it into position. This he says was much more dangerous than when he used the flat paper, as he was not required to use his hands but little in forcing the flat paper or cardboard in position. No instructions were given him in regard to the handling of this oval paper board. The testimony seems to indicate that in feeding, especially the flat pieces of paper board, it could be done much more easily, and it •only required to be simply dropped within the' guides and he would, ■therefore, have more time to remove his hand; that the oval material required him to reach further down and also to force the pieces of paper board under the guides in order that it might be properly cut by the knives, and that in so doing his hand was cut.

All of these facts were before the jury, together with the demonstrations upon the apparatus used in the common pleas court illustrating the machine that was used for cutting this paper board, and showing the character of the machine and the operation of the same. From an examination of the whole case, it appears that it is a case as to which .different minds might arrive at a different conclusion.

The jury passed upon the testimony, and found, taking all the circumstances of the case, that the defendants were negligent in not giving proper instructions to the plaintiff as to the manner of using the oval paper, and the operation of the machine with such paper board, and with respect to the verdict it is not manifestly against the weight of the evidence. 1

The court in its instructions to the jury was very favorable to the defendants, instructing them very carefully that if the plaintiff understood the character of the dangers incident to the operation of this machine, and appreciated the dangers or should have appreciated them, that then the plaintiff could not recover. It also instructed the jury fully in respect to the fact that if he was informed as to the dangerous character of this maqhine, he assumed the risk, and that there could be no recovery.

The only objection that is made to the instructions given to the jury are the instructions found on page 126 of the record, as follows:

‘ ‘ I think I have failed to give you a full definition of ordinary care. Ordinary care is just such care as men of ordinary care and prudence are accustomed to exercise under the particular circumstances of the case. Ordinary care, as applied to the plaintiff in this ease, would be just such care as persons of his intelligence, comprehension and ability to know, exercise or ought to exercise under the particular circumstances of the ease.”

Now it is said that the principle, as found in Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596], of contributory negligence, as applied to children, is not applied in this case, because the court below omitted to state anything, or instruct the jury in respect to^ anything concerning the age of the plaintiff, and therefore the charge was misleading and erroneous. Taking this whole charge together, we do not believe that this was so misleading that the jury were drawn away from the main questions in this case; we think that it follows that the rule as laid down in Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St. 608 [56 N. E. Rep. 457; 76 Am. St. Rep. 446], should be applied in this ease, which is as follows

“A charge to a jury is to be construed as a whole, and if, construing the whole charge, the law of the case appears to have been correctly given to the jury, and in a way that will reasonably enable them to understand the rules of law which they are to apply to the evidence before them, the charge will not be held to be erroneous simply because every condition to a recovery or a defense is not embraced in each paragraph, and the paragraph excepted to is not in itself calculated to mislead. ”

We do not'believe that after the court had fully instructed the jury, and with great carefulness, and then had given this definition of ordinary care, that this instruction was misleading, and that the verdict ought to be set aside for this reason.

Therefore finding no error in this record to the prejudice of the plaintiff in error, the judgment will be affirmed.

Marvin and Donahue, JJ., concur.


author: TAGGART, J.

text:
    COUNTIES — JUDGMENTS AND DECREES — PRINCIPAL AND SURETIES.
    [Richland (5th) Circuit Court,
    January, 1908.]
    Taggart, Donahue and Craine, JJ.
    State ex rel. Huston v. Samuel A. Esswein et al.
    1. Judgment fob Defendants Affikmed upon Single Valid Defense.
    A judgment for defendants should be affirmed, if among the defenses interposed there were any one that was valid, or if there be any other sufficient reason under the law for sustaining the judgment.
    2. PREREQUISITES TO RECOVERY UPON BOND FOR FAITHFUL PERFORMANCE OF CONTRACT with County.
    Failure to aver in an action against a contractor and his sureties for damages for failure to complete a contract entered into with county commissioners, (1) that the contract relied upon was one of binding force and effect, (2) endorsement of the contract by the prosecuting attorney in compliance with Rev. Stat. 799 (Lan. 1763), and (3) performance of all the other prerequisites to a complete and valid contract, precludes any recovery thereon by the county. Such prerequisites are not for the benefit and protection of the sovereign power alone, but they are of the-essence of the contract, which without them becomes null and void.
    [Syllabus approved by the court.]
    ERROR.to Ricbland common pleas court.
    Lewis Brucker, G. M. Skiles and W. H. Bowers, for plaintiff in' error.
    S. M. Douglass, C. H. Workman, J. J. Adams, G. E. Crane and! Sater & Seymour, for defendants in error.
   TAGGART, J.

This proceeding [State of Ohio for the Use and Benefit of Richland County, Ohio, by C. H. Huston, Prosecuting Attorney of Rich land County, Ohio v. S. A. Esswein, W. H. Shinnick, and G. J. Carter] is prosecuted to reverse the judgment of the court of common pleas. The plaintiff in error was plaintiff in the case below and defendants in error were defendants therein. To the amended petition filed by plaintiff the defendants each filed general demurrers.

In the court of common pleas these general demurrers were over-Tuled, and thereupon defendants filed joint and several answers containing fifteen separate defenses. To each of these defenses except the first the plaintiff filed demurrers, and the demurrers were sustained to each excepting the third and fifth.

The case was heard by the common pleas court, a jury being waived, and a judgment rendered in favor of the defendants. A motion for a new trial was filed, overruled and exceptions taken, and this proceeding is now brought in this court to reverse the judgment of the •common pleas court. ,

We may say at the outset that the judgment of the court of common pleas must be affirmed, if there is a single valid defense made in this case, or if, under the law, there is any other sufficient reason for ¡sustaining the judgment.

The Supreme Court, in Sites v. Haverstock, 23 Ohio St. 626, thus .lays down the rule as to the verdict of a jury:

“Where the jury, by their verdict, ‘find the issues joined in the cause’ in favor of one of the parties, this is to be taken as a verdie/-finding each and all of the issues therein for such party.
“In such case, if the issues are such that a finding of either of them in favor of the successful party entitles him to the judgment Tendered, the judgment will not be reversed for error in the instructions of the court relating exclusively to the other.’’

In McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. Rep. 715], the Supreme Court lays down the rule:

“Where two issues are presented in the pleadings for the determination of the jury, and there is a verdict finding the issues for the defendant, and such finding on either issue entitles him to a general judgment in his favor, and a judgment is rendered on the verdict, such judgment will not be reversed for error in the instructions of the court to the jury relating exclusively to one of the issues.”

The Supreme Court, in the recent case of State v. Dickerson, 77 Ohio St. 34, held that the reviewing court was entitled to look into the record and, if the judgment which was in review was right for any reason, it was the duty of the reviewing court to affirm the same.

The amended petition that was filed in the court below was based upon a bond which the defendants, Williams and Beaver, as principals, and Esswein, Shinnick and Carter, as sureties, had executed and delivered to the board of county commissioners of Richland county, in the sum of $15,000.

The condition of the bond was that — “F. H. Williams and H. H. Beaver have this day submitted to the board of county commissioners a proposal for labor and materials for remodeling the courthouse at Mansfield, Ohio, as.set forth in the proposal hereunto attached. Now, should the said F. H. Williams and H. H. Beaver, within ten days after receiving notice to that effect, enter into a contract to complete said work, and after entering into a contract faithfully to carry out all the conditions, implied and stated, in said contract, a full understanding of which is hereby acknowledged, and leave the building and premises free from all liens and claims whatsoever, chargeable to said county commissioners, then this obligation to be void and of no effect •, otherwise to remain in full force and virtue in law.”

The petition proceeds, after giving a copy of the bond and reciting its conditions, and says that the board of county commissioners theretofore accepted the proposal of Williams and Beaver and entered into a contract in writing with the said Williams and Beaver to remodel the courthouse of Richland county. The petition further avers that Williams, and Beaver failed, neglected and refused to complete the remodeling of the courthouse, according to the terms of said contract, wholly abandoning said contract and refusing to complete the same. They further allege that the commissioners of Richland county complied with all the terms of their contract on their part to be performed.

It will be noted that, by the averments- of this petition, the plaintiff does not allege that Williams and Beaver entered into “a valid or binding contract,” that they entered into “a contract agreeable to the statute in such cases made and provided,” that they entered into “a contract according to law,” or that they “duly entered into a contract.” So that there is a total lack of averments in this petition that the “contract,” which was so claimed to have been entered into' between Williams and Beaver and the commissioners was of any binding force and effect whatever.

The Supreme Court, in Wellston (City) v. Morgan, 65 Ohio St. 219 [62 N. E. Rep. 127], thus states the rule:

“To state a good cause of action against a municipality in matters ex contractu the petition must declare upon a contract, agreement, obligation or appropriation made and entered into according to statute.”’

So that, at the outset of this case, so far as there is any averment in this petition, it totally fails to state that the “contract,” or alleged contract, that it is claimed was entered into between “Williams and Beaver, was of legal and binding effect.

We are also of the opinion that it would be necessary for the plaintiff in this case to set forth the facts showing a compliance with the statute, such as is required by Rev. Stat. 799 (Lan. 1763), alleging the endorsement by the prosecuting attorney and all the other prerequisites to a complete and valid contract.

It is elementary, and as Judge Davis states the rule in State v. Griffith, 74 Ohio St. 80, 92 [77 N. E. Rep. 686], “There is no proposition of law more firmly settled in this state than that sureties are not liable béyond the letter of their contract.” These sureties, defendants in this case, could not be bound beyond the strict letter of their contract. Their obligation was that, if said Williams and Beaver, after entering, into the contract, would faithfully fulfill and carry out all the conditions stated in the contract, then the obligation was to be void and of no •effect; otherwise to remain in full force and virtue in law. We are •clearly of the opinion that this presupposed an entry into, on the part of the principals, of a valid, legal and binding contract.

But it appears from the petition itself, and also from the record in the case, that Williams and Beaver either wholly abandoned or failed to complete their contract according to the terms of the contract that they had entered into. The contract which it is claimed they had entered into with the commissioners provided that, after a certain certificate was made by the architect and after written notice given to the contractors, the commissioners were at liberty to enter upon the premises and complete the same. And the petition avers that said certificate was furnished and the county commissioners proceeded, under the terms and provisions of said contract and in accordance with the specifications and supplemental specifications, details and plans, and with due diligence, to complete said uncompleted contract for the remodeling of the said courthouse. And then the petition closes with the averment that they have completed the uncompleted contract in so far as they had power to do so and have paid for the completion of the work.

Revised Statutes 799 (Lan. 1763) provides, in respect to public buildings and bridges, in contracts of this character—

“If such contractor or contractors fail or refuse to proceed with the work specified in his or their contract or contracts, * * * the commissioners shall have power to declare such contract or contracts annulled, and shall proceed to make another contract or contracts for the completion of sncb work, in accordance witb tbe provisions of this chapter.”

Now, the provisions of this.chapter provide that there shall be competitive bidding in all cases where the amount is over $1,000. It is unnecessary to quote at length the statutes governing this provision.

As we have called attention, this petition affirmatively states that they proceeded to complete the uncompleted contract in so far as they had power to do so, but there is not a single averment that they attempted to comply with the law in a single respect, so far as letting the contract by bids, having the subsequent contracts endorsed by the prosecuting attorney, or having the certificate of the auditor that the money was in the treasury therefor. It does appear in the record in this case that they did attempt to let the contract by competitive bidding and that one Whissler made a bid which was, as shown by the record, above the amount the auditor certified was in the fund" to the credit of the building fund for that purpose. The record shows that they rejected the bid on the ground that it was illegal to accept the same, and then, in total disregard of the law, as we find in the record, they entered into separate contracts, without any competitive bidding, without having the contracts endorsed by the prosecuting attorney, or without, it seems to us, complying with any of the provisions which are provided for the safeguarding of the public funds. So that, so far as the sureties are concerned, this petition is fatally defective; and, so far as the record goes, we think it shows affirmatively that, at the time of the default of the principals, Williams and Beaver, the county commissioners wholly failed to observe the law in respect to buildings of this kind.

In respect to the principals, Williams and Beaver, if no valid contract was entered into between them and the commissioners, they could not be held to complete the contract, and there would be no default on their part if, before its completion, they had abandoned, failed or refused to complete the same. If the parties to this contract were bound to complete said contract, it would present the anomalous position that they could be compelled to give their time, labor and effort to supply the county with a remodeled courthouse, and the commissioners at the end refuse to pay, or a taxpayer enjoin the payments, and these parties be without remedy.

But it is urged on our attention , and claimed earnestly in argument that these provisions are for the benefit of the sovereign power, and that the parties to the contract cannot take advantage of the failure to .comply with the law. For the failure to have a contract endorsed by the prosecuting attorney, the statute says that the contract shall be null and void, and for failure to comply with tbe other provisions, certifying the money, etc., the statutes provide it shall be null and void, and you cannot add to, or take from, the clear and expressive language of the statute.

If anything were needed to interpret the meaning of these words, we call attention to a case in Buchanan Bridge Co. v. Campbell, 60 Ohio St. 407, 425 [54 N. E. Rep. 372], where the court, speaking through Judge Burket, uses the following language:

“No notice of the proposed letting was published; no record of the contract was entered in the minutes of the commissioners by the auditor; no plans or specifications were ever made, .approved or deposited with the auditor; no contract was ever submitted by the commissioners to the prosecuting attorney for his approval, and none was ever approved by him.
“These omissions are fatal to the validity of the contract, and, by force of the above cited sections of the statute, the contract is totally void and imposes no obligation on either party to it.
“The statutes are notice to the world as to the extent of the powers of the commissioners; and the bridge company is bound by that notice.. It knew, or was bound to know, that the commissioners had no power to thus enter into a contract, and that a contract thus attempted to be entered into would be null and void, and would not bind either party. ’ ’

As we view it there was. no valid contract' between the commissioners and Williams and Beaver and none is alleged in this petition and, therefore, there could be no recovery.

Upon the issues made by the answer in this action, we think that the judgment of the court upon the third and fifth defenses was sustained by the proof in this ease, and the judgment of the court of' common pleas was right and is affirmed. Exceptions will be noted and the cause will be remanded to the court of common pleas for execution.

Donahue and Craine, JJ., concur.


author: (SWING, J.

text:
    APPEAL — ERROR.
    [Hamilton (1st) Circuit Court,
    February 15, 1908.]
    Swing, Giífen and Smith, JJ.
    Walker et al. v. Jenney, Admr. et al.
    . 1. Oedeb Dismissing Appeal Stands as Judgment in Absence of Ebbob Peo-CEEDINGS THEBETO.
    While an appellant has no authority to dismiss an appeal which has been properly perfected in an appealable case, yet a dismissal of an appeal to which no error is prosecuted will stand, and will be construed as the judgment of the court.
    2. Dismissal of Ebbob Pboceedings afteb Dismissal of Appeal Impbopeb. ,
    While error may be prosecuted before the determination of an appeal, the proceeding will avail nothing in the event the appeal is sustained; but where the appeal is dismissed and the appellant has an error proceeding pending, it is his right to have a hearing therein, and to dismiss such a proceeding is error.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    J. M. Dawson, for plaintiff in error.
    W. H. Mackoy, for defendants in error.
   (SWING, J.

Upon tbe filing of certain accounts in the probate court certain exceptions were filed by the plaintiff in error, which exceptions were upon hearing overruled by said court. Thereupon plaintiff took an appeal from the judgment of the probate court to the court of common pleas. This appeal was perfected September 26, 1905. Subsequently said plaintiff in error also had a bill of exceptions perfected and filed in said court of common pleas a petition in error. On May 29, 1906, the following entry was made in the appeal ease: “Now come the appellants in the above cause and dismiss this said appeal at their costs.” Afterwards, to wit, on May 31, 1906, the defendants filed a motion to dismiss the error proceedings in said court, for the reason that an appeal had been taken from said probate court to said court of common pleas prior to .the filing of said petition in error, and that therefore there was no judgment in said probate court to which error could be prosecuted. Afterwards, to wit, on February 7, 1907, the court of common pleas found said motion well taken and dismissed said petition in error for the reasons set out in said motion.

This action in this court is to reverse the judgment of the court of common pleas dismissing the petition in error. No proceeding was prosecuted to the judgment dismissing the appeal.

It is urged that the principle announced in the first proposition of the syllabus in Bassett v. Daniels, 10 Ohio St. 617, “An appeal perfected, suspends all proceedings upon the judgment appealed from,” which proposition seems to be the settled laAv of this state, is decisive of the question here.

The record shows that in this ease the appeal was perfected from the decision of the probate court to the court of common pleas prior to the filing of the petition in error, and for this reason the petition in ■error was dismissed.

' In Bull v. Bell Bros. 54 Ohio St. 228 [43 N. E. Rep. 584], the fourth proposition of the syllabus is as follows:

“While an appellant may prosecute error to the judgment appealed from, before the determination of his appeal, the proceeding will avail nothing if the appeal be sustained, for then the cause stands for a new trial of the issues of fact, the judgment superseded by that of the appellate court, and the errors occurring in the court below, if any were committed, become immaterial; nor can the affirmance of the judgment before the trial of the appeal give it any additional or different effect.”

In the opinion of the court, at page 241, it is said:

“We are not aware of any statutory provision, or rule of law which prevents a party who has taken an appeal from a judgment, from also prosecuting error to obtain its reversal. When doubtful of his appeal, that may be a prudent and commendable practice; otherwise, if his right of appeal should not be determined until after the expiration of the time allowed for prosecuting error, and then be determined adversely to him, thus leaving the judgment in force, his remedy on error would be lost. But if the appeal be sustained, the proceeding in error avails nothing, for the cause then stands for a retrial of the issues in the appellate court.”

It seems clear from this decision that a party may prosecute error from a judgment after he has perfected an appeal, but it avails nothing if the appeal be sustained.

Was the appeal sustained in this ease? The case seems to have been an appealable one, and an appeal was perfected, but it certainly was not sustained, and no trial was had on the issues joined in -the appellate court. On the contrary the appeal was dismissed in the appellate court. The entry dismissing the appeal recites: “Now come tbe appellants in the above canse and dismiss their said appeal at their •costs.”

We know of no provision of onr statute which authorizes an appellant to dismiss an appeal when perfected and we think there is no •such power. Such power rests solely in the court and, in order to give this dismissal any effect, it must be construed as the judgment of the court, and the court had no right to disihiss the appeal unless the appeal was not properly taken, or the case was not one from which an appeal could be taken. ' No error was prosecuted to the judgment dismissing the appeal, and it therefore stands, although the court may have committed an error in dismissing the appeal. It seems to us that when the appeal was dismissed the party had the right to have the judgment reviewed on error, and that the court erred in dismissing the petition in error.

Smith, J., concurs.

Giffen, J., dissents.


text:
    LICENSES.
    [Hamilton (1st) Circuit Court,
    June 8, 1907.]
    Swing, Giffen and Smith, JJ.
    Silverton (Vil.) v. Charles H. Davis.
    1. Signins or Bill of Exceptions by Mayok.
    Where a hill of exceptions in a prosecution before a mayor was duly signed arid regularly filed in the common pleas, it is not open to objection in the circuit court on the ground that it was not filed by the mayor or noted on his docket.
    [For other cases in point, see 1 Cyc. Dig., “Bill of Exceptions,” § 539; 4 Cyc. Dig., “Error,” § 1480. — Ed.]
    2. Sufficiency of Affidavit.
    Under an ordinance which provides that “No person shall be engaged in any business hereafter mentioned (including the keeping of public ball rooms or ball grounds) until he shall have obtained a license therefor,” it is necessary in order to charge an offense that the affidavit allege the accused unlawfully failed to secure a license to conduct the business, and not that he unlawfully engaged in the business.
    3. Power of Mayor to Grant License.
    Where such an ordinance delegates to the mayor the power to grant or refuse a license at his discretion, it confers upon him more than a ministerial' or administrative duty, and is invalid to the extent that it is not general and does not apply to every person.
    [For other cases in point, see 5 Cyc. Dig., “Licenses,” §§ 24-26. — Ed.]
    4. Evidence Necessary to Convict Violation of License Ordinance.
    In order to warrant a conviction for violation of an ordinance providing for the licensing of ball grounds, etc., there must be evidence that the accused was engaged in the business as keeper, proprietor or manager, and this requirement is not met where the evidence goes no further than to indicate that the accused maintained a hall ground and pavilion on his private grounds, hut not for profit and with which the public had nothing to do.
    [For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” § 1910. —Eld.]
    [Syllabus approved by the court.]
    ERROR to Hamilton common pleas court.
    F. H. Reppert and A. E. Painter, for plaintiff in error;
    C. M. Leslie and F. F. Dinsmore, for defendant in error;
   SMITH, J.

The defendant in error was tried before the mayor of the village of Silverton in September, 1906, upon an affidavit and warrant, charging that the defendant in error as the owner and keeper of ball grounds in the village of Silverton, did unlawfully engage in the business of using said ball grounds, by having ball playing on said grounds in said village, without first taking out a license therefor as required by law. And also in August, 1906, said defendant in error was tried before the mayor of the village of Silverton upon an affidavit and warrant charging that he did unlawfully as the owner and keeper of a public ball room or dancing pavilion located in said village engage in the business of using such public ball room or dance pavilion for public dancing without first taking out a license therefor as required by the laws of said village made and provided.

The defendant in error was found guilty by the court in both cases. A motion for a new trial in each case was overruled by the court and the defendant sentenced in each case to pay a certain fine and costs. Bills of exceptions were signed by the mayor, containing all of the evidence offered on the trials, and the judgments of the mayor were reversed in the court of common pleas. In this court it is now sought to reverse the judgments rendered by the court of common pleas.

At the outset plaintiff in error makes objection to the hearing of' these causes in this court on the ground that the bills of exception cannot be considered by the court, for the reason that they were not filed by the mayor, but were filed by the defendant in error, and the filing of the bills was not noted upon the mayor’s docket. We do not think this objection is well taken, as the bill was duly signed and filed in the court of common pleas. Borsodi v. State, 7 Circ. Dec. 31 (13 R. 275).

Defendant in error moved the trial court to quash the affidavits and warrants, which motions were overruled. He also demurred to the same, which, demurrers were overruled, and said causes proceeded to trial.

We are of the opinion that the trial court erred in not granting the motions and in not sustaining the demurrers. Section 1 of the ordinance passed by the village of Silverton, providing for licenses is as follows:

“That no person shall be engaged in any business hereafter mentioned until he or she shall have obtained a license therefor.” Section 6 provides that keepers of public ball rooms shall pay a license fee of $75 per annum; and See. 8 provides for a license for keepers of ball grounds within the village.

While it will be seen from this ordinance that the offenses for which the defendant in error would be liable were the failure or neglect to pay the license fee if he kept a public ball room, or if he was the keeper of ball grounds, these offenses are not charged in the two affidavits; they simply charge that he unlawfully engaged in the business, instead of charging that he unlawfully failed to secure a license to conduct the business. O’Rourke v. State, 3 Circ. Dec. 611 (6 R. 612).

Defendant in error also urges that Sees. 6 and 8, relating to the issuance of licenses for public ball rooms and ball grounds, delegates to the mayor the power of granting or refusing a license at his discretion. In this respect the ordinance does delegate discretionary power to the mayor, and not a mere ministerial duty; and while ministerial or administrative duties may be delegated to the mayor legislative duties cannot be. It gives to the mayor'the power of discrimination between applicants for licenses; it therefore is not general and does not apply to every person, and this would render the ordinance in this respect invalid. Upon an examination of the evidence in these cases, we are of the opinion that upon this ground alone the defendant in error should have been dismissed.

The law providing for the regulation by municipal corporations of '“public ball rooms” and “ball grounds” is found in the 97 O. L. 504, Sec. 30 (Lan. Rev. Stat. 3102; B. 1536-100). This act gives to municipal •corporations the power to regulate such matters by granting a license for them. The latter part of Sec. 30 provides that, in the trial of any •action brought under the power of licensing, the fact that any party to auch action represented himself as engaged in any business or occupation for the transaction of which a license may be required; or as the keeper, proprietor or manager of the thing for which a license may be ■exacted; or that such party exhibited.a sign indicating such business or ■calling or such proprietorship or management, shall be conclusive evidence of the liability of such party to pay the’license thereof. This, therefore, is indicative of the kind of evidence that should be adduced to. control an action to find one guilty of not taking out a license for the. conduct of a “public ball room’’ or “ball grounds.”

The section relates to one engaged in the “business” or “.occupation,” or one who “keeps,” or is “proprietor” of, or “manager” of, a. certain “thing or business.” The evidence nowhere shows that the defendant in error represented himself in the business or occupation of' keeping a public ball room or ball grounds, or as the keeper, proprietor' or manager of a public ball room or ball grounds. No sign was exhibited by him indicating such business or calling, or such proprietorship or management, but, on the contrary, while games of ball were played upon' the grounds in question by permission, and while there was a covered pavilion, open on all sides, upon the grounds where people might seek shelter in case of necessity, or even dance if they so chose, yet there is-nothing in the testimony to show that these ball grounds were for public exhibitions, were used for the purpose of profit, or that the pavilion itself' was used in any way from the business standpoint of one engaged in running it for gain. On the contrary, the evidence shows that the grounds were marked “private grounds,” and the most that can be said about them would be, that they were permitted by the owner to be used for' picnic grounds. It was simply a place on private grounds where people' were allowed to assemble for the purpose of recreation; no admission fee was charged; the ball grounds and the pavilion'could not in any sense be construed to impose upon the owner the duty of taking out licenses for their use, as the statute evidently means that such use must-be one for business or occupation, which necessarily implies the use of a public ball room and ball grounds for profit. We must recognize the distinction in all matters of amusements which are public in their nature, to which all the public are invited, for which admission fees are charged, and gain or profit is made, as theaters, race courses, and other kinds of amusements mentioned in the section under consideration, from those private amusements in which individuals engage and with which the great mass of the people as the public have nothing to do.

In conclusion, therefore, we are of the opinion that the defendant in error in no wise offended against the law and the ordinance in question, and the judgment of the court of common pleas will be affirmed.

Swing and Giffen, JJ., concur.