author: ALLREAD, J.

text:
    LICENSES — VEHICLES.
    [Franklin (2nd) Circuit Court,
    March 22, 1909.]
    Sullivan, Dustin and Allread, JJ.

      Wm. Frisbie, a Taxpayer, v. Columbus (City) et al.
    1. Act 99 O. L. 538, Does not Prevent Municipal Regulation of Motor Vehicles. Act 99 O. L. 538, providing for the registration, identification, regulation and licensing of motor vehicles neither inhibits municipal councils from passing ordinances requiring a license of the same vehicles,' nor from enforcing ordinances for such purpose in force at the time of the passage of such act.
    '2. Repeal of Unconstitutional Statute Does not per se Invalidate Ordinance Previously Enacted.
    Act 98 O. L. 320, compelling owners of such vehicles to register, and forbidding local authorities from passing and enforcing ordinances to regulate and license such vehicles, being clearly unconstitutional, its repealing clause was not effective to prohibit the imposition of municipal licenses.
    '3. Expense of Police Regulation of Motor Vehicles a Matter of License. Police regulations, supervision and control of the operations of motor vehicles in municipalities and the additional expense in construction and maintenance of streets required thereby justify the imposition of special licenses by way of municipal reimbursement, notwithstanding the imposition ■ of state licenses and regulation thereof by the state.
    4. “Use” Contemplated by Columbus Vehicle Ordinance is “Continuous and Repeated.”
    The doctrine announced in Pegg v. Columbus, 29 O. C. C. 390 (10 N. S. 199), that the “use” contemplated by the vehicle ordinance of the city of Columbus for the exaction of the annual license fee, provided for therein, must be in its nature “continuous and repeated” is hereby approved and followed.
    [Syllabus approved by the court.]
    Error to Franklin common pleas court.
    Decision by Judge Dillon of the common pleas, rendered Monday, March 1, 1909.
    The question presented in this case is whether or not the act of May 9,1908 (99 O. L. 538), providing for the registration, identification, regulation and licensing of motor vehicles, inhibits the councils of municipalities from passing ordinances requiring regulation and license of the same vehicles or from enforcing such ordinances already in force at the time of the passage of such act.
    The plaintiff in his petition complains of an ordinance passed by the council of the city of Columbus, March 20, 1905, being ordinance No. 21,927, which was passed for the purpose of licensing and regulating the use of the streets by persons who use vehicles of all kinds thereon. This ordinance requires, among other things, a license fee for each automobile of from $5 to $7.50, depending upon size.
    The plaintiff is a taxpayer, and has made demand iipon the city solicitor in accordance with the statute, and brings this action to enjoin the city officials from enforcing the said ordinance; and presents three reasons why the ordinance is invalid.
    The first reason is, that the previous legislature, on June 1, 1906, had passed a somewhat similar state law regulating and licensing motor' vehicles (98 O. L. 320), by Sec. 19 of which local authorities were forbidden to pass and enforce or maintain any ordinance, rule or regulation requiring the owner or operator of any motor vehicle to take out any license, or interfering with his free use of the highways, etc.
    Whether this Sec. 19 of the act merely suspended the enforcement of any such ordinance, or actually repealed any such ordinance, need not here be considered, for the reason that this act of the legislature has already been declared unconstitutional; and for that reason, therefore, did not repeal or affect the ordinance in question. Feasal v. State, 18 Dec. 478 (6 N. S. 321).
    This case was afterwards affirmed by the circuit court (not reported), and the reasoning of the associate branch of this court is so clear that further comment upon that statute is unnecessary.
    The second reason advanced is that this ordinance is in reality a tax, and its only purpose is to raise revenue. This claim has so often been made in this court, and has received consideration at the hands of this court so many times, that comment upon this claim will be very brief r
    The leading ease in Ohio upon this subject is found in the case of Marmet v. State, 45 Ohio St. 63 [12 N. E. Rep. 463], where the court, with the same questions before it, confirmed the power of the municipality within reasonable bounds to regulate occupations by license and to. compel the payment of a reasonable fee therefor, where such occupation ■consists of a special benefit conferred by the public upon those who follow or practice it, or where such occupation imposes a special burden upon the public, or where it is injurious or dangerous to the public, and requires regulation.
    That case involved only the ordinary driving of horses and vehicles, on the street, and had no reference to motor vehicles. Concerning, therefore; the somewhat innocuous occupation of driving a horse and buggy on the street, the court observes that thousands of property owners use no vehicle of any kind; that those who do use vehicles are favored ones, and the court asks this question: “Why should not these favored ones pay a small sum toward making good that which they wear out?”
    The court in that case also recognized that heavier wagons and heavier loads caused a greater burden upon the streets, and therefore should pay a larger fee, and that all these burdens upon the publie should be determined in considering whether or not an ordinance was really imposing a tax for general purposes.
    The court further held in that ease that the fact that incidentally more money might be received than was absolutely necessary to pay the expense of repairs of the streets and regulation of the traffic would not be sufficient to invalidate the act.
    This second argument advanced by the plaintiff is further weakened by consideration of the nature of the vehicle in question. In addition to those things which may be charged against ordinary light vehicles, whose chief burden upon the public consists in wearing out the streets, we have in this case the additional burden of regulation of automobiles for a much higher purpose, of preventing injury to person as well as property. In addition, therefore, to the wear and tear upon the streets, whatever that may be, it is quite manifést that the entire police force- of our municipalities are scarcely able today to cope with the violations of law committed by operators of automobiles. It is common knowledge that hundreds of these violations take place in the city of Columbus every day and injuries to person and property are of common occurrence. If all the revenue, therefore, derived from this license were devoted to the employment of special policemen alone, there would still be a deficit for ordinary wear and tear upon the streets, etc., whether that be great or small.
    The third reason advanced by the plaintiff is that the ordinance applies equally to nonresidents of the state as well as to persons residing therein, and provides for no exemption of any kind.
    If this ordinance does apply to nonresidents of the state, the argument as to its unconstitutionality could be no stronger, -perhaps, than if it had expressly exempted nonresidents of the state; but this court is of opinion that the question presented in this third argument is one of construction of the ordinance and not as to its constitutionality. If it be unconstitutional to tax a nonresident of the municipality, as it is claimed the ordinance in question attempts to do, then the ordinance would be void simply as to such nonresidents, and the court, construing an ordinance constitutional if it can be so done, would hold that it applies to the regular and habitual users of the streets.
    This is the view which this ;eourt takes of this ordinance, and will be found discussed fully in the case of Pegg V. Columbus, 17 Dec. 333 (5 N. S. 436). The holding of this branch of the court that such an ordinance as the one in question is constitutional has already been upheld by the circuit court, Pegg v. Columbus, 29 O. C. C. 390 (10 N. 'S. 199), which court, however, differed from the court below with reference to the construction of the statute.
    The plaintiff is a resident of the municipality, and therefore it is unnecessary for the court to reiterate its views with reference to its application to nonresidents or transients passing, through the city.
    The court being therefore of opinion that a municipality is not forbidden by the statute named from enforcing or passing ordinances regulating the use of its own streets, the demurrer to the petition will be sustained; the temporary restraining order heretofore granted will be dissolved, and the petition is dismissed at the cost of the plaintiff.
    C. D. Saviers, for plaintiff in error.
    Marshall, Weinland & Hoover, for defendant in error.

      Reversed by Supreme Court, Frisbie v. Columbus, 80 Ohio St. 686.

   ALLREAD, J.

This action was brought to enjoin the enforcement of so much of the vehicle license ordinance of the city of Columbus as applies to automobiles and other motor vehicles. The plaintiff alleges that he is a taxpayer and citizen of Columbus, Ohio, and has made request of the city solicitor to bring the suit, and that the city solicitor has refused. The plaintiff shows no interest or right of his own liable to be affected. He does not show that he is an owner of an automobile or otherwise affected by the ordinance. Serious doubt arises whether the plaintiff has such interest as to justify his bringing the suit. Cincinnati v. Dexter, 55 Ohio St. 93, 113 [44 N. E. Rep. 520].

In view, however, of its importance, wé have concluded to decide the main question as to the validity of the automobile license clause of the ordinance referred to.

The contention that the municipal license law as to automobiles and other motor vehicles was repealed by the act of 1906 (98 O. L. 320) cannot be sustained. That act was clearly unconstitutional, was not even attempted to be enforced and the repealing clause is not intended to be effective when the act itself is void.

It is claimed, however, that the act of 1908 (99 O. L. 538) repeals by implication the act authorizing municipal licenses as to automobiles.

Repeals by implication are not favored, and it is only when the two acts are wholly repugnant and not capable of reconciliation that a repeal by implication is upheld.

Sutherland, Stat. Constr. Sec. 52.

The general scheme of state licenses prescribed by the act of 1908' is not wholly repugnant to municipal licenses. Upon many subjects upon which the state has prescribed general regulations, authority is also given for municipal legislation. And upon some subjects, the state prescribes a license and also permits an additional license by municipalities.

Many reasons can be urged for coexisting licenses by the state and municipalities. The streets of municipalities are under the special care, supervision and control of the city and are the subject of large expense in construction and supervision, as well in police regulation. This would justify a special license for the municipality to reimburse it for special cost due to .automobile use of the streets. Three references are made in the act of 1908 to local regulations which may be considered on the subject of repeal by implication. In Sec. 6 it is provided that ■“Any person to whom an annual 1908 license has been issued by any municipality prior to the time when this act shall take effect shall be exempt” from state license until January 1, 1909.

This provision reflects in some degree a legislative intent to substitute the state for the municipal license, but is not so conclusive as to justify a repeal by implication. The postponement of the state license may be explained upon other grounds.

In See. 23 local authorities are prohibited from regulating speed of motors except when special authority is granted over specific highways for speed tests or races. This section deals expressly with local-regulations, and having expressed the subjects upon which the local authorities are denied the power of legislation, there is an inference that the legislature did not intend to deny any other power conferred by the then existing statutes. This inference in favor of existing municipal regulations not expressly repealed more than overcomes the contrary inference arising from the proviso in Sec. 6. The reference to local authorities in Sec. 15 does not aid in the construction of the act as to the repeal.

It is urged that the assessment of municipal licenses in every municipal corporation through which an automobile may be run would practically destroy the effect and purpose of the license granted by the state. This contention would be very serious if the municipal ordinance is to be so construed as to require payment of a license from every municipality into which an automobile may be run in traversing the highways of the state. This court has, however, in the case of Pegg v. Columbus, 29 O. C. C. 390 (10 N. S. 199), construed the ordinance in question to apply only to a use of the streets which is in some measure at least “continued or repeated.” This construction of the Columbus ordinance is in harmony with a reasonable and fair use of the state license and at the same time sustains the Columbus ordinance as being a reasonable and fair charge for continued and repeated use of the streets by an owner or operator of an automobile. Mamet v. State, 45 Ohio St. 63 [12 N. E. Rep. 463].

The court is, therefore, of tbe opinion that the judgment of the. common pleas court, dismissing the petition, should be affirmed.

Sullivan and Dustin, JJ., concur.


source: Caselaw Access Project

author: DUSTIN, J.

license: Public Domain

text:
    CEMETERIES — EMINENT DOMAIN.
    [Montgomery (2nd) Circuit Court,
    July 6, 1907.]
    Wilson, Sullivan and Dustin, JJ.

      Pansing v. Miamisburg (Vil.).
    1. Abandoned Cemetery may be Appropriated by Village fob Public Purposes.
    A cemetery wherein interments were made upon payment of a fee without the granting of any title to the ground, and in which no interments have been made for forty years, may he appropriated by a village for use for parks and public buildings.
    2. Stating Several Harmonious Uses of Property Does not Render Appropriation Ordinance Invalid.
    • An appropriation resolution declaring that land sought to be appropriated is for “parks and public purposes,” etc., it being intended that the ground around such public buildings should he merely incidental to their use, is not invalid as containing more than one subject, for the reason that the several uses stated are for harmonious purposes.
    3. Burns Law Does not Apply to Appropriation Proceedings.
    Section 2702 (Lan. 3999; B. 1536-205) Rev. Stat., requiring the clerk’s or auditor’s certificate of sufficient funds in the treasury unappropriated, cannot he made to apply to appropriation proceedings in advance of any knowledge as to cost of the property.
    4. Interest to be Acquired Need not be Stated.
    In an appropriation proceeding it is not necessary to declare the interest to be acquired, as in the absence of a declaration a fee simple will he presumed; nor can the necessity of the appropriation be questioned, except for collusion or fraud.
    5. Necessary Designation of Parties Defendant Against Church Trustees.
    In appropriation proceedings where the property is owned by a religious, society the trustees of the societ3 should be individually named as such, in the application to assess compensation.
    [Syllabus approved by the court.]

      Error to Montgomery common pleas court.
    An old cemetery containing about thirty-nine hundredths of an acre lies near the center of the town of Miamisburg. The title to the land is in the German Reformed and Lutheran churches. Prior to about 1860 it was used as a public burying ground, although the church controlled it, and might charge a fee for burying unless they saw fit to remit such charge. There have been practically no burials in it for possibly forty years.
    The village council decided to appropriate this land for the purpose of erecting public buildings. Being more ground than would be required for the buildings proper, the appropriation resolution and subsequent proceedings used the following language, “for parks and public building purposes, ’ ’ etc., it being intended that the ground around the buildings should be kept as incidental to the buildings, although not to be built upon. Plaintiff claimed that this language made the proceedings involve more than one subject, and therefore illegal under the statute. The resolution did not specify the estate to be taken and the plaintiff urged this as an error, but defendant claimed that under the present statute, which provides that an estate in fee shall be taken unless some other estate is asked, the village was entitled to the fee.
    No certificate of the clerk of the corporation was filed showing the money in the treasury for the appropriation. Plaintiff insisted that this also was an error. Plaintiff also claimed that the village had no right to appropriate the land, because it was already used for public purposes and was in fact public property.
    Gottschall & Turner and Mahlon Gebhart, for plaintiff in error:
    The probate court had no jurisdiction to determine the questions here raised. Pittsburg, C. G. & 8t. L. By. v. Greenville, 69 Ohio St. 487 [69 N. E. Rep. 976]; Grant v. Hyde Park (Vil.), 67 Ohio St. 166 [65 N. E. Rep. 891],
    The relatives and even friends of deceased persons buried in the cemetery are the real parties in interest. Davidson v. Beed, 111 111. 167 [53 Am. Rep. 613]; Boyce v. Kalbaugh, 47 Md. 334 [28 Am. Rep. 464]; Sabin v. Harkness, 4 N. H. 415 [17 Am. Dec. 437]; Wormley v. Wormley, 207 111. 411 [69 N. E. Rep. 865; 3 L. R. A. (N. S.) 481],
    If the statute is not strictly followed, the probate court acquires no jurisdiction, and its proceedings are void. Harbeck v. Toledo, 11 Ohio St. 219; Harbeck v. Connelly, 11 Ohio St. 227; Platt v. Pennsylvania Co. 43 Ohio St. 228 [1 N. E. Rep. 420]; Giesy v. BaÁlway, 4 Ohio St. 308.

      Irregularities in the condemnation proceedings. Rhoades v. Toledo, •'3 Ciro. Dec. 325 (6 R. 9) ; Ryan v. Hoffman, 26 Ohio St. 109.
    The resolution, ordinance and application do not state the purpose ■of the appropriation. Grant v. Hyde Park (Vil.), 67 Ohio St. 166 [65 N. E. Rep. 891]; State v. Taylor, 55 Ohio St. 61 [44 N. E. Rep. 513]; Lewis, Em. Dom. (2 ed.) Sec. 308; Valley Ry. v. Bohm, 34 Ohio St. 114; Randolph, Em. Dom. Sec. 56; Giesy v. Railway, 4 Ohio St. 308.
    The resolution, ordinance, and application do not state the estate or interest sought to be appropriated. Giesy v. Railway, 4 Ohio St. 308; Dodson v. Cincinnati, 34 Ohio St. 276; Valley Ry. v. Bohm, 34 Ohio St. 114.
    Council made no finding or declaration that the appropriation of this real estate was necessary for public use. Pittsburg, C. C. & St. L. Ry. v. Greenville, 69 Ohio St. .487 [69 N. E. Rep. 976] ; Giesy v-j „Railway, 4 Ohio St. 308; Dodson v. Cincinnati, 34 Ohio St. 276; State "v. Curtis, 86 Wis. 140 [56 N. W. Rep. 475]; Kinney v. De Mar, 4 Circ. Dec. 282 (8 R. 149).
    Property devoted to public use and cannot be condemned. Lay ■v. State, 12 Ind. App. 362 [39 N. E. Rep. 768]; Davidson v. Reed, 111 111. 167 [53 Am. Rep. 613]; Hunter v. Sandy Hill, 6 Hill (N. Y.) 407; Boyce v. Kalbaugh, 47 Md. 334 [28 Am. Rep. 464] ; Beatty v. Kurtz, .27 U. S. (2 Pet.) 566 [7 L. Ed. 521]; Wormley v. Wormley, 207 111. 411 [69 N. E. Rep. 865; 3 L. R. A. (N. S.) 481]; Redwood Cemetery Assn. v. Bandy, 93 Ind. 246; Kitchen v. Wilkinson, 26 Pa. Super. Ct. 75; Commonwealth v. Wellington, 89 Mass (7 Allen) 299; Stockton v. Newark, 42 N. J. Eq. 531 [9 Atl. Rep. 203]; Kansas City v. Scarritt, 169 Mo. 471 [69 S. W. Rep. 283].
    A public cemetery cannot be condemned in Ohio. Iron Ry. v. Ironton, 19 Ohio St. 299.; Hatch v. Railway, 18 Ohio St. 92; Little Miami Ry. v. Dayton, 23 Ohio St. 510; Hickok v. Hine, 23 Ohio St. ■523 [13 Am. Rep. 255]; Cincinnati, S. & C. Ry. v. Belle Centre, 48 ■Ohio St. 273 [27 N. E. Rep. 464]; Street Ry. v. Railway, 50 Ohio St. >603 [36 N. E. Rep. 312]; Pittsburg, C. C. & St. L. Ry. v. Greenville, ■69 Ohio St. 487 [69 N. E. Rep. -976]; Louisville v. Nevin, 10 Bush (Ky.) 549 [19 Am. Rep. 78]; Evergreen Cemetery Assn. v. New Haven, 43 Conn. 234 [21 Am. Rep. 643]; Memphis State Line Ry. v. Cemetery Ho. 116 Tenn. 400 [94 S. W. Rep. 69]; Lewis, Em. Dom. (2 ed.) Sec. 654; Board' of ‘.Street Opening, In re, 133 N. Y. 329 [31 N. E. Rep. 102; 16 L. R. A. 180'; 28 Am. St. Rep. 640]; New York, L. <& W. Ry. In re, :99 N. Y. 12 [1 N. E. Rep. 27] ; Suburban Rapid-Transit Co. v. New Work City, 128 N. Y. 510 [28 N. E. Rep. 525]; Cincinnati (Tr.) v.
      White, 31 U. S. (6 Pet.) 431 [8 L. Ed. 452]; Hunter v. Sandy Hill, 6 Hill (N. Y.) 407; Beatty v. Kurtz, 27 U< S. (2 Pet.).566 [7 L. Ed. 521],
    In reply. Toledo & O. Gent. By. v. Fostoria, 4 Circ. Dee. 602 (7 R. 293); affirmed, Railway v. Fostoria, 56 Ohio St. 726; Pittsburg, (7. C. & St. L. Ry. v. Greenville, 69 Ohio St. 487 [69 N. E. Rep. 976] Deansville Cemetery Assn., In re, 66 N. Y. 569 [23 Am. Rep. 86];; Youngstown v. Railway, 2 Circ. Dec. 121 (3 R. 214); Price V. Church» 4 Ohio 515; Beatty v. Kurtz, 27 U. S. (2 Pet.) 566 [7 L. Ed. 521] Babb v. Cincinnati, 1 O. S, U. 495 (36 Bull. 206); Spring Grove-Cemetery v. Railway, 1 Dec. Re. 316 (7 W. L. J. 251); Hyde Park (Vil.) v. Cemetery Assn. 119 111. 141 [7 N. E. Rep. 627]; Mannix v. Purcell, 46 Ohio St. 102 [24 N. E. Rep. 595; 2 L. R. A. 753; 15 Am. St. Rep. 562].
    J. C. Myers and Rowe, Shuey, Matthews & Janies, for defendant in error:
    What will authorize interference at suit of a taxpayer. Sloane-v. Railway, 3 Circ. Dee. 674 (7 R. 84) ; Spangler v. Cleveland, 43 Ohm St. 526 [3 N. E. Rep. 365]; Kellogg v. Ely, 15 Ohio St. 64; Toledo & O. Cent. Ry. v. Fostoria, 4 Circ. Dec. 602 (7 R. 293) ; affirmed, Railway-v. Fostoria, 56 Ohio St. 726; Colby v. Toledo, 12 Circ. Dec. 347 (22 R. 736); affirmed, Colby v. Toledo, 68 Ohio St. 698; Cincinnati, S. & C. Ry. v. Belle Centre, 48 Ohio St. 273 [27 N. E. Rep. 464]; Richards v. Skiff, 8 Ohio St. 586; Toledo & Ohio Cent. Ry. v. Beard, .11 Circ. Dee. 406 (20 R. 681); Heckman v. Adams, 50 Ohio St. 305 [34 N. E. Rep. 155]; Moore v. Moore, 46 Ohio St. 89 [18 N. E. Rep. 489]; Toledo v. Preston, 50 Ohio St. 361 [34 N. E. Rep. 353]; Thoms v. Greenwood, 6 Dec. Re. 639 (7 Am. L. Rec. 320) ; Hallock V. Columbus, 13 Dec. 488' (1 N. S. 205) ; Swing v. Rose, 75 Ohio St. 355 [79 N. E. Rep.. 757]; Mutual Fire Ins. Co. v. Furniture Co. 108 Mich. 170 [66 N. W.. Rep. 1095; 34 L. R. A. 694; 62 Am. St. Rep. 693] ; Cleveland Cc-op. Stove Co. v. Melding, 11 Circ. Dec. 400 (21 R. 60) ; affirmed, Cleveland Co-op. Co. v. Mehling, 68 Ohio St. 653; Reynolds v. Stansbury, 20 Ohio 344 [55 Am. Dee. 459]; Sheldon v. Newton, 3 Ohio St. 494; -Bushnell, Ex parte, 8 Ohio St. 599; Dayton & Union Ry. v. Traction Co. 14 Dec. 143 (1 N. S. 296); Iron Ry. v. Irontón, 19 Ohio St. 299.
    Proceedings of the village council and probate court were according to law. Krumberg v. Cincinnati, 29 Ohio St. 69; Caldwell v. Carthage, 49 Ohio St. 334 [31 N. E. Rep. 602]; Strauss v. Cincinnati? 11 Dee. Re. 92 (24 Bull. 422).
    As to necessity of appropriation. Iron Ry. v. Ironton, 19 Ohio St. 299; Cincinnati'So. By. v. O’Meara, 7 Dec. Re. 346 (2 Bull. 142); Coster v. Ti'de Water Co. 18 N. J. Eq. 54; Water Works Co-, v. Burk-hart, 41 Ind. 364; People v. Smith, 21 N. Y. 595: Sample v. Carroll). 132 Ind. 496 [32 N. E. Rep. 220]; New York é Harlem By. v. Kip, 46 N. Y. 546 [7 Am. Rep. 385] ; Ward v. Turnpike <& Bridge Go. -6 Ohio St. 15; Commonwealth v. Connellsville Borough, 201 Pa. St. 154 [50 Atl-. Rep. 825]; Laird v. Pittsburg, 205 Pa. St. 1 [54 Atl. Rep. 324; 61 L. R..A. .332],
    Purpose of appropriation. Wellsville v. O’Connor, 24 Circ. Dec. 689 (1 N. S. 253) ; Byan v. Orbison, 3 Circ. Dec. 647 (7 R. 30).
    Certificate of clerk. Put-in-Bay (Vil.) v. Webb, 7 Circ. Dec. 478 (18 R. 780); Krumberg v. Cincinnati, 29 Ohio St. 69; Caldwell v. Carthage, 49 Ohio St. 334 [31 N. E. Rep. 602] ; Strauss v. Cincinnati, 11 Dec. Re. 92 (24 Bull. 422) ; Grant v. Hyde Park (Vil.), 67 Ohio St. 166 [65 N. E. Rep. 891],
    The fee simple is taken. Cincinnati, H. & D. By. v. Sundry Persons, 1 Dec. Re. 326 (7 W. L. J. 265).
    What may be appropriated. Mills, Em. Dom. Sec. 20; Board of Street Opening, In re, 133 N. Y. 329 [31 N. E. Rep. 102; 16 L. R. A. 180; 28 Am. St. Rep. 640]; Deansville Cemetery Assn. In re, 66 N. Y. 569 [23 Am. Rep. 86] ; Randolph, Em. Dom. Sec. 97; Youngstown v. Bailway, 2 Circ. Dec. 121 (3 R. 214) ; Price v. Church, 4 Ohio 515; Smiley v. Bartlett, 3- Circ. Dec. 432 (6 R. 234); Methodist Prot. Church v. Laws, 4 Circ. Dec. 562 (7 R. 211) ; Bicharás v. Dutch Church, 32 Barb. (N. Y.) 42; Babb v. Cincinnati, 1 O. S. U. 495 (36 Bull. 206) ; Iron By. v. Ironton, 19 Ohio St. 299; Spring Grove Cemetery v. Bail-way, 1 Dec. Re. 316 (7 W. L. J. 251) ; Montclair Water Co. v. Jersey City, 58 N. J. Law 262 [33 Atl. Rep. 740]; New York, L. & W. By. In re, 99 N. Y. 12 [1 N. E. Rep. 27] ; Kansas & T. Coal By. v. Goal & Mining Co. 161 Mo. 288 [61 S. W. Rep. 684; 51 L. R. A. 936; 84 Am. St. Rep. 717].
    As to what is a private cemetery. Deansville Cemetery Assn. In re, 66 N. Y. 569 [23 Am. Rep. 86] ; Mannix v. Purcell, 46 Ohio St. 102 [24 N. E. Rep. 595; 2 L. R. A. 753; 15 Am. St. Rep. 562]; Elliott, Evidence Secs. 420 to 433, 1335, 1336; Potter v. Norwood (Vil.), 12 Circ. Dec. 146 (21 R. 461).

      Affirmed by Supreme Court, without report, Pansing v. Miamisburg, 79 Ohio St. 430.

   DUSTIN, J.

We think the village of Miamisburg has the power to appropriate the cemetery in question for public purposes. It has not been in “use” for forty years. The right of eminent domain is sovereign, and all private and corporate realty is subject to it, except that where the right has already been exercised, and the property continues in the use for which it was conveyed or appropriated, it cannot again be taken for a different or inconsistent purpose. Spring Grove Cemetery v. Railway, 1 Dev. Re. 316 ( 7 W. L. J. 251).

In this case it appearing that interments were made on payment of a fee, no title to the ground being granted to individuals, the only rights acquired by the survivors were to have the bodies of their dead remain long enough for thorough decomposition, and removed to another burying ground, when the property should be used for secular purposes. Windt v. Church, 4 Sand. Chan. Rep. 502.

It did not render the ordinance invalid to state several, harmonious purposes for which the property was to be used. Indeed it was the only practicable way. Should several ordinances be passed and several actions brought to condemn different parts of the same tract? That would complicate the situation, require an unnecessary multiplicity of suits and largely increased costs for no good reason.

The necessity for the appropriation cannot be questioned except for fraud and collusion.

The Burns law, Sec. 2702 (Lan. 3999, B. 1536-205) Rev. Stat., does not apply and could not be made to apply in advance of any knowledge as to what the premises would cost.

Nor was it necessary to declare the estate or interest to be acquired; for a fee simple is presumed unless a lesser estate is mentioned.

But we think the trustees of the churches should have been individually named as such. To generally designate parties to a suit as “trustees” of a church without giving their names leaves the identification of the parties wholly to the determination of the officer serving the process; and there is no means of testing the correctness of the service by comparison with the petition.

Opportunity will be afforded, however, to correct the condemnation proceedings in that respect, so as to bring the proper parties into court.

The case therefore will be continued for that purpose.

Wilson and Sullivan, JJ., concur.


author: WILDMAN, J.

text:
    DIVORCE AND ALIMONY.
    [Lucas (6th) Circuit Court,
    January 23, 1909.]
    Wildman and Kinkade, JJ.
    (Parker, J., not sitting.)
    Eusebe Davis v. Jesse E. Davis.
    1. Expectancy of Inheritance not an Element of Present Value to Measure Alimony Allowance.
    “Expectancy” as applied to property which may be considered in deter- . mining a husband’s ability to pay alimony does not include the mere possibility of accession by inheritance from his living parents.
    [Syllabus approved by the court.]
    Appeal from Lucas common pleas court.
    W. T. S. O’Hara, for plaintiff.
    L. M. Murphy, for defendants.
   WILDMAN, J.

This is an alimony case, appealed from the court of common pleas which entered a decree for alimony in favor of the wife to the amount of $2,000, probably basing the judgment upon an anticipation of large property some day coming to the defendant, Jesse ft. Davis, by inheritance from his father. Counsel, reserving all questions as to competency, agreed, during the progress of the trial, that the father of the defendant is, at the present time, worth about the sum of $20,000, the son having substantially no property, in his own name. We have supplemented the research made by defendant’s counsel seeking to ascertain whether the courts of the various jurisdictions of the country have been called upon to pass upon the admissibility, of this class of evidence, or, to put it in another form, to ascertain whether they have determined that, in alimony cases, the court may aid itself in arriving at what would be a just allowance by recourse to the expectancies of the husband. We have been unable to find authorities in which the question is directly raised and passed upon; but cases are numerous to the effect that the property of the defendant as it existed at the time of the decree is the proper basis of the allowance, considering, of course, the necessities of the plaintiff and the nature of the case in other respects. We feel quite clear that the evidence of defendant’s expectancy of inheritance ought not to be taken account of by us. A mere naked expectancy is one which may never bear fruit; it may not result in bringing to the party against whom a judgment is rendered any property whatever out of which a judgment might be satisfied, and the result of entering a large decree would be to impose upon him a burden of debt which he might never have the means of satisfying. Perhaps for this among other reasons, courts have retained jurisdiction in many cases, so as to permit the modification of decrees at subsequent dates according to changed conditions.

I wish to call attention to some language in Mr. Bishop’s work on Marriage and Divorce with reference to the power of maintaining such continuing jurisdiction, but before doing that, in reference to. the question which I have just been considering relating to the effect of the expectancy of a large property, we may properly refer to the section of our statute which makes provision for alimony. It is Sec. 5699 Bev. Stat. and provides, substantially, that the court may allow alimony out of the property of the defendant. While counsel have agreed that the defendant’s father is financially responsible or has property to the amount of $20,000, as estimated, there has been no concession that the father has not made a will and devised or bequeathed all of this estate in some other direction than to his son. For aught that appears, the father may have resolved in his own mind to this effect and he may even have crystallized that resolution in a valid will and testament disposing of the property by gift to some other relative, to some charitable institution, or in some other way to have provided that it shall take a different course than to pass by descent to the son, and without any light on this subject, it would be hard for us to say that the son has such an expectancy that ought to be considered here, even if it were otherwise permissible.

The case of Cox v. Cox, 20 Ohio St. 439, is thought by counsel for plaintiff to bear somewhat upon the decision' of this question, and it does so, although it comes in the form of a. dictum of the Supreme Court. It is not necessary to read the case, but it appears that after the allowing of a decree by an Indiana court, property came to the husband by inheritance. At a later date and subsequent to this accession to his property a proceeding was instituted for alimony, in Ohio, and the Supreme Court held that this new property might properly be taken account of and judgment rendered accordingly; and in coming .to that conclusion the Supreme Court expressed the dictum as follows:

“The court has a broad discretion in determining the amount of alimony. In a proper case there is no good reason why the court may not. among other things, look to and regard what the husband has in expectancy, as well as that which he has in possession. Here, however, the court were not called upon to do so. The expectancy had become realized and become part of the husband’s estate.”

This language is entitled to the highest respect, but is not authoritative as it would have been if essential to the determination of the case considered by the Supreme Court.

In 2 Bishop, Mar. & Div. (ed. 1891) Sec. 895, the author uses this language:

“If the husband has a vested estate, of which he is to have possession only on the death of another person, so that it brings him no immediate income, yet it is a thing of value under his control, some estimate must be made of it among his faculties. 'Precisely its effect will depend on shifting complications of circumstances, not admitting of being stated in the form of a rule. ‘I think,’ said Dr. Lushington, ‘that with regard to permanent alimony the court would make a different allotment in a case where the income of the husband was derived from his sole personal labor or exertions, from what it would do when he had moreover a large reversionary property in expectancy.’ ”

Now it is probable that the Supreme Court, in the language to which I have referred in the case of Cox v. Cox, supra, intended by the expression “expectancy” just such an expectancy as Mr. Bishop mentions in the paragraph a part of which I have read. The author was not considering a mere naked expectancy. If we should so interpret the language of the Supreme Court of Ohio, it would be altogether consistent with the general current of authority holding that all the powers of the husband, his bodily and mental health, his skill as an artisan or a professional man, his power to earn wages or a salary, may be taken into account. "We are inclined to the view that we ought not to take into account the'estimated'value of Jesse Davis’ expectancy of inheritance and base upon it a decree of alimony against him. It may be a matter to consider determining whether or not we shall decree alimony in gross, or whether we shall retain jurisdiction of the case for such consideration as we might have the power and right to give it upon any changed circumstances of the parties.

I will not go over the evidence which has been offered concerning these parties, the conditions of their health, the necessities of the one or the ability to supply them on the part of the other.

We have concluded to render a decree for alimony to the amount of two dollars a week, and we will retain jurisdiction of the ease for such consideration as may be proper in the future and as we may have the right to give. . The order which we make does not disturb any order •which may have been made as to temporary alimony, nor does it of course disturb.in any way the order which the court of common pleas' has made as to the maintenance of the child, the custody of which was given to the wife — as to that we have no power of interference.

Kinkade, J., concurs.


text:
    CHATTEL MORTGAGES — CONDITIONAL SALES.
    [Miami (2nd) Circuit Court,
    1908.]
    Sullivan and Dustin, JJ.
    (Wilson, J., not sitting.)
    Boyer et al. v. Howland et al.
    1. Lien of Chattel Mortgage Cannot be Revived after Failure to Refile.
    Where a chattel mortgage expires without payment having been made and it is not refiled within thirty days pursuant to Sec. 4155 Rev. Stat., the lien becomes dead, and it cannot be revived to the injury of creditors by the mortgagee taking possession of the property.
    2. Literal Compliance with Statutory Provisions as to Conditional Sales ■ Required.
    The policy of this state requires literal compliance with statutory provisions with reference to conditional sales (Sec. 4155-2 Rev. Stat.), and omission by the vendee to file an affidavit with his claim in the office of the county recorder renders the lien of the vendor under the conditional contract invalid.
    [Syllabus approved by the court.]
    Error to Miami common pleas court.
    C. M. Cist, for receiver.
    G. A. Brooks and A. F. Broomhall, for mortgagees.
    Gilbert & Shipman, for conditional sale creditor.
   DUSTIN, J.

(Orally.)

William Howland absconded from the city of Piqua, leaving his business and family. Certain creditors, who had been, and considered themselves still, mortgagees of his machinery, undertook to take possession thereof, and brought proceedings for the appointment of a receiver to continue the business for a time and wind it up. Certain machinery not included in the chattel mortgage had been sold to How-land upon conditional terms of sale, title to pass when the payments were completed. This machinery was sold by parties in New York where the contract was made.

The parties who claim to have a chattel mortgage on the machinery had allowed the chattel mortgage to expire without refiling, pursuant to the statute. The parties in New York, who sold the machinery upon conditional terms as to title, had filed the conditional contract, but had not complied with the statutes of Ohio in this, that there was no affidavit on the part of the vendor as to how much was due to the vendee.

The receiver by the consent of all parties sold the premises, include ing the machinery involved here, and the proceeds are for distribution. The abandoned wife of Howland put in a claim for homestead.

The common pleas court upon the facts presented, and they are not disputed, allowed the claim of the mortgagees as against general creditors, upon the theory that, by taking possession of the goods, a lien was. effected which was good as against all others, notwithstanding the time for refiling the chattel mortgage had expired.

The common pleas court also held that the conditional sale was invalid as against creditors, both general and specific, and appeal was. taken to this court by the dissatisfied parties. It has been quite an important and interesting case.

On the part of the receiver, as against these mortgagees, we have the argument, founded chiefly upon the case of Cooper v. Koppes, 45 Ohio St. 625 [16 N. E. Rep. 662], that this mortgage was not renewed and was dead and inoperative and ineffective as to all persons, excepting of course as to the mortgagor.

The case of Cooper v. Koppes held as follows:

“1. A chattel mortgage which is not reverified and refiled within thirty days next preceding the expiration of one year from the filing thereof, in pursuance of Section 4155 of the Revised Statutes, is void as against creditors and bona fide purchasers and mortgagees; nor is it revived as to them by being reverified and refiled after the expiration of one year from the former filing.

“2. Such mortgage, so refiled four days after the expiration of the one year, creates no lien upon the mortgaged property as against a levy in favor of an execution creditor made after such refiling.”

The argument on the behalf of the mortgagees is that although Sec. 4155 Rev. Stat. says in case of no refiling within thirty days next preceding the expiration of one year from the filing thereof, it shall be void as against creditors, mortgagees and innocent and bona fide purchasers, that what is meant is creditors who have obtained an attachment or judgment or otherwise fastened their liens upon the property, and not general creditors. The language is as follows:

“Every mortgage so filed shall be void, as against the creditors of the person making the same, * * * after the expiration of one year from the filing thereof, unless, within thirty days,” etc.

How are we to get around that? It says “creditors.” After the expiration of a chattel mortgage that was not refiled, all creditors have the right to presume, and are so notified by the condition of the record, that it has been settled. Why, if that is not to secure such creditors, are they included? It would be an injustice, it seems to us, and very grossly inequitable, to permit a mortgagee who had allowed his mortgage to expire to come in thereafter and take possession of the goods or refile his mortgage, as referred to in the ease of Cooper v. Koppes, supra, —gross injustice to those who in the meantime had given the debtor credit upon the state of the record. The reasoning of the learned judge in the common pleas court, as against his own declared ideas, is based •on a series of decisions which in his view confirm the theory of the defense on behalf of the mortgagees, that they can, by taking possession,' accomplish the same thing as by a new mortgage, or that they would have accomplished by the refiling of their mortgage. We do not hold to the same view — we cannot reconcile our ideas to that theory; neither can we reconcile the decision in Cooper v. Koppes with that theory and the language of the court. Judge Owen, in the decision of that case, says: . .

‘ ‘ ‘ That the continuity of the lien was broken and that the mortgage was void *’ * * as to creditors.’ Here then, by common concession, was, as to creditors a dead lien. Where in the statute do we find authority to resurrect or revive it ? There is none. The contract originally entered into between the parties was forever at an end, so far as it •could affect creditors, and Iona fide purchasers and mortgagees. * * * He held it free from all liens as against creditors. It was not in the power of the mortgagee, by his own act, to create such a lien. Such lien could only have been created through convention of the parties. The possession by the mortgagor of the property presumed his ownership •of it,” etc.

We think that is the proper view of the matter. The lien was dead and. could not be revived so as to injure creditors — that means all creditors.

Now as to the other question, the conditional sale. We have examined that but not to our satisfaction; we do not propose to pass upon it now; we have indicated our view upon the chattel mortgage, and I may add here that the homestead claim will be allowed as against the general creditors and against the mortgagees, but as to .the conditional sale we would like to have further light. It does not seem to -us justice or, equity to allow the general creditors the advantage of having this, machinery, which sold for much more than the lien of the vendor and yet-had never been paid for. For, even after the vendor has been satisfied, it is beneficial to the creditors. To cut out the mortgagees for the reason that the affidavit was not signed by the vendor does not strike us favorably, and we want to see our way out of so holding. Would it not be inequitable to allow that technicality to stand in the way of their receiving the value of their property 1 Nobody was deceived in the-matter, the chattel mortgage or conditional contract of sale was on file, and the amount of the claim was stated there. We will not pass on that, question now, but reserve it until later.

Note — Later, the court held that the lien of the vendor under the conditional contract was invalid. The policy of the state requires, literal compliance with the statute (Sec. 4155-2), although seemingly working injustice in this case. — Ed.

The general entry need not go on until we have more light.

Sullivan, J., concurs.


author: SWING, J.

text:
    CARRIERS.
    [Hamilton (1st) Circuit Court,
    February, 1908.]
    Swing, Giffen and Smith, JJ.

      Cleveland, C. C. & St. L. Ry. v. Barron-Boyle Co.
    Construction- of Contract by Carrier upon Discovery of Damages to Goods-Shipped over Connecting Lines Making it Liable Therefor.
    The last of several connecting carriers delivering goods in damaged condition, having receipted in turn to its next preceding carrier for the good order and condition of the goods, demanding and receiving freight in full form originating point to that of delivery, making no claim of separate contracts with several connecting lines and agreeing that consignees file their claim for damages with it, recognizes but one contract for transportation; and being unable to show that the injuries complained of were caused by other agencies beyond its control, a judgment for the amount of damages admitted will not be set aside.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.

      Journal entries and findings of fact and law by Judge Hunt of tbe common pleas:
    This cause came on to be heard upon the petition of the plaintiff [Barron-Boyle Company], the answer and amended answer of the defendant [Cleveland, C. C. & St. L. Ky.] and the reply of the plaintiff, the depositions of the defendant, on file herein, and upon an agreed statement of facts entered into between the parties, plaintiff and defendant, on file herein, there being no other testimony offered by either-of the parties, and upon the arguments of briefs of counsel for the parties, the intervention of a jury being by the said parties waived in open court and was submitted to the court.
    Upon consideration whereof the court find upon the issues joined the following facts:
    “On or about' October 30, 1902, the plaintiff procured to be shipped to it at Cincinnati, Ohio, from Antwerp, Belgium, 1,649 eases of window glass in 1,521 packages in apparent good order and condition under a bill of lading of said date in and upon the Steamship-“Storm King” and by said steamship to be delivered to the American Express Company at Boston, and by it re-forwarded thence-in bond by rail or otherwise at ship’s expense and shipper’s risk to-Cincinnati, Ohio, and there delivered to' order.
    “That said goods were delivered by said steamship to said American Express Company and by it to the Boston & Maine Kailroad Company and thence by the said Boston & Maine Railroad Company to other connecting carriers, said goods coming into the hands, of the defendant at Cleveland, Ohio, in sealed cars and in bond.
    “That said cars while in the hands of the defendant were not opened and the contents thereof examined before the same arrived at Cincinnati.
    “That said ears were handled by the defendant in the usual manner in which freight cars are handled and suffered no accident nor any rough handling beyond what is usual in the ordinary handling of freight cars in railway service.
    “That upon opening the said ears at Cincinnati certain window glass in said shipment of the value of $1,212.90, the property of the-plaintiff, was found upon joint checking, made by the parties hereto,, to be broken and destroyed.
    “That there is no evidence tending to show that said glass was improperly packed or that, said loss and damage was caused by dangers, of the sea.

      '“That the defendant company and each of its predecessors in the chain of" connecting carriers receipted for said shipment when the same came into its hands as in apparent good order and condition.
    “That the freight charge was specially agreed upon by the parties; that it covered through transportation from Antwerp to Cincinnati; that the amount thus agreed upon was paid by the defendant and divided among the various lines in the chain of connecting carriers , from Antwerp to Cincinnati.
    “The court further find as a fact that certain cases of said shipment were found to rattle when they were delivered to the Boston & Maine Railroad at Boston but that said cases were not opened nor any other means employed to determine whether said rattling was caused by the contents being broken, and said rattling cases were receipted for as in apparent good order and condition.
    “The court further find that there is no evidence identifying the cases rattling at Boston with the cases containing broken glass on arrival of the shipment at Cincinnati.
    “The court, therefore, find, as a conclusion of fact, that the testimony tending to show that certain cases rattled at the time of delivery to the Boston & Maine Railroad, there being no direct evidence to show that said rattling was caused by breakage, together with a receipt to said Boston & Maine Railroad and subsequent connecting carriers down to the defendant that said shipment was in apparent good order and condition are insufficient t© show that said breakage occurred prior to the time that said shipment came into the hands of the defendant carrier.”
    As a conclusion of law, the court find that when the last or delivering carrier in a chain of connecting carriers delivers goods which it had receipted for in apparent good order and condition, and is unable to show that the injuries complained of were caused by superhuman agencies or other agencies beyond the control of defendant, or in whose hands the goods were at the time the injuries occurred, and where, as was the case here, the freight was entire from originating point to point of delivery to be apportioned among the several carriers, the law presumes the injuries to have occurred while the goods were in the hands of the last carrier unless such presumption is rebutted or removed; and the court'find that the defendant here has failed to rebut or remove such presumption.
    It is, therefore, considered and adjudged by the court that the plaintiff recover from the defendant the sum of $1,528.25 with interest from April 1, 1907, and costs herein taxed at $-.

      To all of which, the defendant excepts.
    This cause coming on to be heard upon the motion of defendant to set aside the finding and judgment of the court heretofore entered herein and for a new trial, and having been argued by counsel and submitted to the court, the court having been advised thereon doth find that said motion is not well taken. Wherefore it is adjudged that said motion be and the same is hereby overruled.
    Harmon, Colston, Goldsmith & Hoadly, for plaintiff:
    Cited and commented upon the following authorities: Hutchison, Carriers Sec. 1348; Morgantown Mfg. Co. v. Railway, 121 N. C. 514 [28 S. E. Rep. 474; 61 Am. St. Rep. 679] ; Moore v. Railway, 173 Mass. 335 [53 N. E. Rep. 816; 73 Am. St. Rep. 298]; KlunJc v. Railway, 74 Ohio St. 125 [77 N. E. Rep. 752]; Gibbs v. Bank, 123 Iowa 736 [99 N. W. Rep. 703],
    C. L. Hopping and W. M. Tugman, for defendant:
    Cited and commented upon the following authorities: Klunk v. Railway, 74 Ohio St. 125 [77 N. E. Rep. 752]; Baltimore & O. Ry- v. Campbell, 36 Ohio St. 647 [38 Am. Rep. 617]; Clev. C. C. & I. Ry. v. Welch, 1 O. S. U. 76 (23 Bull. 62).

      Affirmed by Supreme Court, without report, Clev. C. C. & St. L. Ry. v. Barron-Boyle Co. 80 Ohio St. 707.

   SWING, J.

We are of the opinion that the agreed statement of facts in this case shows that there was but one contract for the transportation of the goods from Boston to Cincinnati through the American Express Co. over the Boston & M. Ry., the New York Cent. Ry., the Lake Shore & M. S. Ry. and the Clev. C. C. & St. L. Ry., and that separate contracts were not made with the several railroads for transportation of the goods over said different railroads. This is clearly shown by testimony of agent, Smith (bill of exceptions, page 12). And when the damage to the goods was discovered at Cincinnati no claim was made by the railroad company that there were separate contracts.

But Barron-Boyle & Co., by the request of the railroad company, paid the amount of the freight in full to said company, and by agreement of the parties filed their claim for damage with the said railroad company, thus clearly recognizing the fact that there was but one contract for transportation from Boston to Cincinnati. This must have been the construction that the parties placed upon the contract at the time. When the goods arrived at Cincinnati they were damaged. There is nothing to show when, where or how they were damaged, except that certain of the employes of the Boston & M. Railway who-loaded the glass in the cars at “Mystic Wharf,” testified that some of the boxes rattled in loading and some of the boxes were strained, but no examination was made to ascertain whether any of the glass was-broken. It was admitted that each carrier gave to its predecessor a receipt, stating that the goods were received in good order. It was. first ascertained that the goods were damaged when the goods were inspected after arrival at Cincinnati. The contract of the carrier was: to deliver the goods in good order at Cincinnati, subject to certain exceptions, none of which are set up here, and it is admitted that the goods were not delivered in good order, and the amount of the damage is admitted, and it is agreed that the judgment of the court below was for this amount. It seems to us clearly a breach of contract for which the railroad company was liable and the judgment should be affirmed.

Giffen and Smith, JJ., concur.


author: TAGGART, J.

text:
    FRAUDULENT CONVEYANCES.
    [Richland (5th) Circuit Court,
    1909.]
    Taggart, Donahue and Shields, JJ.
    M. J. Friedman et al. v. Adam Mitz et al.
    Restoking Money to Insolvent after Assignment, Illegal.
    One with knowledge of the insolvency of another and his contemplated general assignment for creditors, receiving from him a large sum of money, giving his due hills in return therefor, holds the money in trust for the creditors and cannot absolve himself from liability therefor to the creditors by returning such money to the insolvent personally, after the assignment is made, and, especially, since he made no disclosure to. the assignee of such restoration.
    [Syllabus approved by the court.]
    Appeal from Richland common pleas court.
    Cummings, McBride & Wolfe, for plaintiffs.
    Douglass & Mengert, for defendants.
   TAGGART, J.

The plaintiffs, a partnership, brought suit against Adam Mitz and Michael Saunders, alleging that shortly before August 27, 1904, the said Mitz, in contemplation of insolvency, and with the intent to delay, hinder and defraud the plaintiffs and other creditors, secretly and fraudulently transferred to defendant, Michael Saunders, $3,800 in money; that, at the time of said transfer and assignment, Saunders had full knowledge of the insolvency of said Mitz and full knowledge of the purpose of said assignment; and that said Saunders, in furtherance of said fraudulent design, and for the purpose of defrauding the creditors of said Mitz out of said money and property, accepted said money. That, shortly thereafter, on August 27, Mitz executed and delivered to one Mr. Marquis his deed of assignment conveying all of his property to be administered by said Marquis for, and on behalf of his creditors. Said deed was duly filed in probate court and the assignee duly qualified, but, on account of said fraudulent transfer, none of the said money ever came into the hands of the assignee and was not administered for the benefit of the creditors. That, in the administration of said trust, there was applied to the payment of plaintiff’s claim $44.95 and no more; and that they made a demand in writing on said Marquis, as said assignee, to recover said property so fraudulently conveyed, and that said Marquis has failed and neglected so to do. They pray that the transfer of said money from Mitz to Saunders be declared void, as against the creditors of Mitz, and that a trustee be appointed to administer that property to the equal benefit of all creditors and for other relief.

To this petition the defendant Saunders filed his answer. In the second paragraph of his answer he admits that Mitz, sometime before the assignment, placed in his hands $3,800 in money. The dates of the payments are set out and are between August 10, 1904, and August 27, 1904. He further alleges that, at the time he received this money, he delivered to Mitz duebills and sets forth copies of the duebills. In the third paragraph of the answer he says that on October 24, 1904, Adam Mitz demanded said money and it was turned over to him on said date and that he has not since had any of said money; that, while he had said money in his possession, he did use some of it in his business but that, on demand, the whole amount of it was repaid to Mitz on October 24, 1904.

It thus appears from the pleadings and the admitted facts in this case, that Saunders, with the knowledge that Mitz was insolvent and contemplated a general assignment for the benefit of his creditors, received from Mitz, shortly prior to August 27, 1904, $3,800; that, on August 27, Mitz made a general assignment of all his property for the benefit of all his creditors; that thereafter, about October 24, Saunders claims lie returned this money to Mitz, lie then knowing that the assignment had been made. It is admitted in this case that the plaintiffs are a, partnership and that they are creditors of Mitz.

Upon this state of facts, it is contended, although the original payments by Mitz to Saunders were made with the knowledge of insolvency, and that Mitz contemplated an assignment, that Saunders is absolved, if the proof establishes the fact that he has paid the money over to Mitz on demand. With this contention we are not in accord.

When Mitz made an assignment to Marquis, he transferred all of his property to Marquis, he assigned his personal property and conveyed his real estate. The property ceased to be the property of Mitz, he ceased to be the owner thereof. It was then the property of Marquis, as trustee for the benefit of his creditors. Marquis was the trustee, the creditors were the cestui que trust This money became impressed with this same character as much as any other personal property. Therefore, if this fraudulent transferee desired to purge himself from any personal responsibility or to secure immunity from accounting for the same, it became his duty to return it to the person or persons entitled thereto. He had no right or authority to transfer it or return it to Mitz, because Mitz was not entitled to receive it and the payment or return to him would not absolve Saunders from liability.

This is the holding in Swift v. Holdridge, 10 Ohio 230, 231 [36 Am. Dec. 85], Judge Lane, speaking for the court, says: “An honest man will not take a fraudulent conveyance. If a man holds property fraudulently conveyed, as soon as he comes to a sense of his moral duty, he will restore it to those to whom it belongs; he ought to give it back to him from whom he received it, that it may be applied to his debts if wanted, or to his benefit if not necessary for this purpose. The law, to discourage frauds, does not compel him to restore it to the fraudulent grantor, yet no man will retain it for a moment who desires the reputation of honesty, or possesses a sense of justice.”

It appears from the testimony in this case that Saunders not only did return it to the fraudulent grantor or transferrer, but he remained quiet, made no disclosure to the assignee in trust for the benefit of his creditors. In our opinion, after the assignment was made, he had no right whatever to turn this money back to Mitz.

It is objected that proof of repayment ought not to have been admitted, but we think that that does not absolve Saunders, and his statement that he gave it back to Mitz only gives color and force to the conclusion that this disposition of the money was a cunningly devised scheme to cheat and defraud the creditors, and if that is to meet the approval of .a court of justice, then we have discovered a new and sufficient way to commit' a fraud and receive the sanction of a court of equity.

Let us suppose that Mitz had died, and Saunders, attempting to absolve himself from personal responsibility had sought to restore the property to whom it belonged, the only person to whom he could have returned the property would have been the administrator of Mitz, in which event it would have been applied to the payment of Mitz’s debts. As we have said, when the assignment was made, there was a trust imposed upon this property, and we think the statement in Robertson v. Desmond, 62 Ohio St. 487, 498 [57 N. E. Rep. 235], has peculiar application :

“The trust imposed upon the property remained unimpaired; and also the right of any one of them,” referring to creditors, “to commence a suit in the proper court, making necessary parties, to have the character of the transfer ascertained and determined, and a trustee appointed to administer the trust. "Whether Robertson retained the property or not in no way impaired this right. If he had retained the property or disposed of it, other than by restoring it to Roth, a different, case would have arisen. In such a case he might as well have been required to account for it, at its value. This is fairly deducible from accurate principles as well as from the following cases: * * * That these cases relate to instances where there had been a fraudulent conveyance does not affect the principle upon which they proceed. So far as moral turpitude is concerned, there is little or no difference between one who takes a conveyance in fraud of creditors and one who tabes a conveyance of trust for the benefit of one or more creditors.”

Therefore, we think this transfer of this property should be declared to be a fraud on the rights of creditors, made with the intent to hinder, delay and defraud them and, as the proof does not show that there was a restoration on the part of Saunders to the parties entitled thereto, he should be held responsible and to account for the sam’e.

The judgment and decree of the court may be entered in accordance with this opinion.

Donahue and Shields, JJ., concur.


text:
    COLLEGES — TAXATION.
    [Knox (5th) Circuit Court,
    1909.]
    Taggart, Donahue and Voorhees, JJ.

      Kenyon College v. John K. Schnebly, Treas.
    1. Statutory Exemption from Taxation not Limited to College Property Ex- . clusively Used for Educational Purposes.
    Section 2732 Rev. Stat., exempting from taxation “all colleges, public academies, all buildings connected with the same and all lands connected with public institutions of learning, not used with a view to profit,” is not limited to such buildings and property as may be used exclusively for literary and educational purposes but includes all property with reasonable certainty, used in furthering or, carrying- out the necessary objects and purposes of such institutions. Hence, college property consisting of residences occupied rent free by the president, professors and head janitor thereof, though not used exclusively for educational or literary purposes, are exempt from taxation under Sec. 2732 Rev. Stat.
    3. Preparatory School Property not Taxable.
    A contract by which certain persons were to take charge of and conduct a grammar school and preparatory department for a college and pay the college a stipulated sum yearly, and encourage students subsequently to attend the college, the college also applying part of the money received from such students for improvements, etc.', on the property, is not a contract with a view to profit on the part of the college within the meaning of Sec. 2732 Rev. Stat. and such property is not taxable.
    S. Lands Used, with a View to Profit not Exempted.
    Vacant'and other unproductive lands of a college are within the provisions of Sec. 2732 Rev. Stat., exempting “all lands connected with public institutions of learning, not used with a view to profit;” but lands used and rented for agricultural and pasturing purposes and a water pumping station, supplying water to buildings and residences of college professors and vending the same to citizens of the town where located, being for revenue are subject to taxation.
    [Syllabus approved by the court.]
    Appeal from Knox common pleas court.
    H. H. & R. M. Greer, for plaintiff.
    W. A. Hosack, for defendant:
    Rule of construction. Kendriclc v. Farquhar, 8 Ohio 189; Cincinnati College v. State, 19 Ohio 110; Lee v. Sturges, 46 Ohio St. 153 [19 N. E. Rep. 560; 2 L. R. A. 556]; Gerke v. Purcell, 25 Ohio St. 229; Watterson v. Ealliday, 77 Ohio St. 150 [82 N. E. Rep. 962]; Meyers v. Akins, 4 Cire. Dec. 425 (8 R. 228) ; Cleveland Library Assn. v. Pelton, 36 Ohio St. 253; Little v. Seminary, 72 Ohio St. 417 [74 N- E. Rep. 193]; Portland Hibernian Ben. Soc. v. Kelly, 28 Ore. 173 [42 Pac. Rep. 3; 30 L. R. A. 167; 52 Am. St. Rep. 769].
    Property used as residences. Kendrick v. Farquhar, 8 Ohio 189; ~W after son v.-Holliday, 77 Ohio St. 150 [82 N. E. Rep. 962]; Cincinnati College v. State, 19 Ohio 110; Gerke v. Purcell, 25 Ohio St. 229; Bamsey Co. v. College, 51 Minn. 437 [53 N. W. Rep. 704; 18 L. R. A. 278],

      Modifying Kenyon College v. Schnebly, 19 Dec. 432 (8 N. S. 160).

   TAGGART, J.

This cause was heard on appeal from the court of common pleas.

The plaintiff, Kenyon College, by this action, seeks to restrain the collection of a large amount of taxes and penalty which has been placed ■on the tax duplicate of Knox county against certáin tracts and parcels of land ownqd by it, for the years 1901 to 1907, inclusive, claiming that the same are exempt from taxation.

The defendant, treasurer of the county, by his answer and cross petition, seeks to obtain a judgment for these taxes, and a sale of the property for their nonpayment, and denies that said tracts of land, or any part thereof, is exempt.

From the evidence in the ease we learn that the plaintiff is incorporated under the laws of Ohio as an educational institution, authorized and empowered to “confer degrees in the arts and sciences, and to perform all other acts as pertain unto the faculty of colleges for the encouragement and reward of learning and shall have power to establish in connection with said college a college and halls for preparatory education.”

The property involved herein may be grouped into the following ■classes:

1. Residences, occupied by the president' and professors in the ■college, and by the head janitor of the college.

2. Lands; a portion of which are used for agricultural purposes, ■and from which a revenue is derived, either in crops or rental for pastures.

3. Vacant lands.

4. Pumping station and standpipe.

5. The academy grounds and buildings.

It appears that the college has a number of residences which are ■occupied by the members of the faculty of the college. It has been the policy of the college to permit such of its professors as are married,, and also its president, to use these residences, rent free. It further appears that they are primarily residences, and no literary exercises or instructions are conducted therein. One of the houses is occupied by the head janitor, who resides therein under a similar arrangement.. There are also several tracts of land which are farmed; or, under the-direction of a superintendent, are rented for pasturage, and from these-a profit is realized.

There are also several tracts that are vacant, not devoted to agriculture, and from which no profit is derived, unless in the future the same-should be sold at an enhanced value. It does not appear to what purpose these tracts of land are to be devoted, or whether the college has-fully determined the use to which they are to be put, or to what they are adapted, or the future policy in respect thereto.

The pumping station and the standpipe were installed in the first instance for the purpose of furnishing water for the college buildings, and afterwards, upon the application of certain citizens of Gambier, water was supplied to residences of Gambier, so that the college has: been receiving from the sale of water about $200 per year.

The academy buildings and grounds were occupied, prior to 1900, by the preparatory department of the college, and at or about this time the trustees contracted with Hills & Wyant to conduct a school which should prepare its students for Kenyon College. This contract was to-continue for three years, with the privilege of two years’ extension.. Among other things contained in this contract was a stipulation, that there should be a rental of $2,000, together with provisions, that there-should be close relations established between the school and the college, and that a portion of the money received for room rent from students, sent from the school to Kenyon College, should be returned to Hills & Wyant, and devoted to the improvement of the buildings and grounds. This arrangement continued until about the year 1906, when fire destroyed all the buildings, or a greater part of the same, since which time the school has not been in operation.

The plaintiff claims exemption from taxation on all this property under favor of Sec. 2732 Kev. Stat., a portion of which is as follows: ‘ ‘ The following property shall be exempt from taxation: * * * all public colleges, public academies, all buildings * * * connected with public institutions of learning, not used with a view to profit

It appears from the evidence in this case, that there are many buildings connected with Kenyon College and lands surrounding the-same, which are not taxed, and no claim is made that the same are taxable. It is apparently conceded, that Kenyon College, so far as some-of its lands and buildings are concerned, falls within the class of institutions that are exempt from taxation. So that the question in this ease-arises on the construction of this part of the statute just quoted. As to. the rule or construction to be employed, it is contended by the defendant that, “where an exception or exemption is claimed, the intention of the general assembly to except must be expressed in clear and unambiguous terms.” Lee v. Sturges, 46 Ohio St. 153, 159 [19 N. E. Rep. 560; 2 L. R. A. 556]. The Supreme Court, in the case of Watterson v. Halliday, 77 Ohio St. 150, 169 [82 N. E. Rep. 962], has adopted a different rule:

“Where religious, charitable and educational institutions seek exemptions, we think such right of exemption should appear in the language of the constitution or statute, with reasonable certainty, and not-depend upon their doubtful construction.”

In the case of Little v. Seminary, 72 Ohio St. 417, 428 [74 N. E. Rep. 193], the Supreme Court, in effect says, that the court in its interpretation of statutes is not required or permitted to go beyond the plain meaning of the language which the legislature has used to express its. intention.

So that we must determine whether or not it was the legislative intent that the residences of professors, or residences occupied by the president and professors, are exempt from taxation, judging from the plain meaning of the language employed. While the college is a “corporation,” it is also defined as the “building” or “collection of buildings, used by the college.” Another meaning is, “A society of scholars, incorporated for the purposes of study or instruction.’’ So that the plain meaning of this statute is as follows: “All public colleges, public academies, all buildings connected with the same, are exempt from taxation.” All buildings connected with the same refers to “public colleges” and “public academies,” and refers to buildings that are associated with, or assist in carrying out, the uses and purposes of the institution known and designated by the terms, college or academy.

It is urged upon our attention by the defendant, that these houses, or residences are not used, “exclusively,” for literary purposes, and that unless used exclusively for literary purposes, or for the purpose of instruction, that they are not exempt.

But there are many buildings connected with colleges and academies which are necessary for the proper conduct of the business of' the college, in which literary exercises do not take place, and which are not employed for the purpose of giving instruction. Many buildings are employed for the purpose of storing the necessary equipment and apparatus of the college, or for the purpose of carrying on the experiments, or for the purpose of storing the archives and records of' the college, and conducting its financial affairs; yet, because these, or-any of these, are carried on in the buildings, or a portion thereof, it; cannot be said, that they are not devoted to the uses and purposes of the college. It appears that the occupation of these residences grew from- the necessities of the case; that adequate accommodations and facilities were not at hand for the president and professors.

We can see no difference between these members of the faculty occupying these residences, free of rent, than if they were lodging in the other buildings of the college; but the plain language of the statute is, “All public colleges, public academies, or buildings connected with the same, are exempt.” And we think it was the purpose to exempt all buildings that were with reasonable certainty used in furthering or carrying out the necessary objects and purposes of the college. We do not think the term, “not used with a view to profit” refers to or controls the clauses, “all public colleges, public academies, or buildings connected with the same, ’ ’ but refers simply to the clause preceding it -in the statute — ‘ ‘ all -lands connected with public institutions of learning, not used with a view to profit.” But it is insisted that the ease of Kendrick v. Farquhar, 8 Ohio 189, is a case controlling this question. That being the case in which the direct question was involved, as to whether a house occupied by the professor was exempt from taxation under the law, as it then stood. But looking to the law at that time, there was an expressed exclusion from exemption of buildings, or any of them, not occupied for literary purposes, and, upon this provision of the law, it was held that the residences occupied by-professors were subject to taxation. So that, with this view of the law and its construction, we think the residences occupied by the president and professors and the janitor, are exempt from taxation. And that brings us to the next question, in respect to lands, a portion of which is now used for agricultural purposes, and from which a revenue is derived: We think the statute is clear, that all lands connected with public institutions of learning, “not used with a view to profit,” are exempt, and the portions of the land herein which are given to agricultural purposes, and which are rented for pasturage are subject to taxation.

The vacant lands, which are not employed in any way, and from which no revenue is derived, we also think are exempt from taxation.

In respect to the pumping station: While the college was justified in installing a pumping station and maintaining the same, yet it is not authorized by its act of incorporation to engage in the vending of water to the citizens of the village of Gambier, and by so employing this pumping station, so as to derive a revenue therefrom, renders such portion of its property subject t© taxation, so long as it continues to supply water to those other than the college.

In respect to the academy grounds: We are of the opinion, that while the arrangement was entered into between Hills & Wyant for the conduct of a school in the buildings, and on said grounds, that this was within the power and authority of the college; that its primary purpose was not to rent this property for the purpose of securing a revenue, but its primary object was to carry out the purposes contained in its charter, viz., the conduct and maintenance of.the preparatory school; that the same was a public academy, and that, until the destruction of the buildings, the same were directly connected with Kenyon •College, and directly and necessarily associated therewith and a part thereof. However, since said date, so much of the grounds as may have been employed to produce a revenue we think would be subject to taxation, so long as they are so used., It does not seem to us, from the proof, that the building or buildings remaining on said grounds have lost their character as being connected with the college, they not having been used or employed for any purpose inconsistent with the uses and purposes of the college.

But speaking with reference to these buildings and the residences hereinbefore mentioned, it is strongly urged upon our attention that the case of Watterson v. Halliday, supra, is controlling in this case. Counsel urge upon our attention the following part of the opinion of the court found on page 180, to wit: “The use to which the property is' devoted determines its right to exemption, under any clause of the section,” and claim that the uses to which those buildings and lands are devoted are for the purpose of securing a revenue, and that being so devoted to this purpose, they are not exempt; that the residences fall within the same class as the parish houses or parochial residences of the priests and bishops, which it was claimed were exempt in the case under consideration.

But an examination- of this case discloses that the legislature have used entirely different language with respect to parish houses and residences of priests and bishops of the Roman Catholic Church, or of any other church, than that which is employed in respect to buildings connected with public, colleges and public academies. The language of the statute which was under consideration in this case is as follows: “All public school houses and houses used exclusively fo,r public worship ; ” it being claimed further that these residences or parish houses were buildings “belonging to institutions of purely public charity.”

The court, in this ease, based its decision upon two grounds: ‘ ‘ That the houses were not used exclusively for public worship; neither were they buildings belonging to institutions of purely public charity; the court finding that the Roman Catholic Church, while it is engaged in charitable works, its chief and primary object was not charity, but its chief and primary purpose and object was the teaching and extending of its recognized form of religious belief and worship into all parts of the world, and was founded to continue the work of Christ upon earth and to teach, govern, sanctify and save all men.”

So that we think that the case at bar is clearly distinguishable from the case of Watterson v. Halliday, supra.

A decree may be entered along the lines indicated herein, in favor of the plaintiff, restraining the collection of all taxes that have been improperly assessed; a decree may be entered in favor of the' defendant for the, taxes which are found herein to be a proper charge against the real estate of the plaintiff; and an order of sale may issue therefor.

Donahue and Voorhees, JJ., concur.


text:
    ERROR.
    [Lucas (6th) Circuit Court,
    January 23, 1909.]
    Wildman and Kinkade, JJ. (Parker, J., not sitting.)
    Samuel S. Ricard v. George F. Porter.
    Attorney for Executor Cannot Waive Service in Error against Deceased. Waiver of service of summons in a proceeding in error against a deceased person by an attorney of deceased’s executor, gives the circuit court no jurisdiction; neither can the plaintiff in error cure the defect by adding or substituting the name of the executor.
    [Syllabus approved by the court.] "
    Motion to dismiss petition in error.
    W. A. Gill, for plaintiff in error.
    Potter & Potter, for defendant in error.
   WILDMAN, J.

This case was ' begun in the court below by Samuel S. Ricard against George F. Porter, but; Porter having died pending the suit, it was revived as against his executor, Henry E. Fletcher. Instead of bringing the proceeding in error in this court against the executor as defendant in error — the judgment being in his favor in the court below upon his substitution for the original party who had died — a proceeding was instituted in this court bearing the same title as the case had borne in its inception in the court of common pleas, to wit, Samuel S. Ricard against George F. Porter. Counsel seem, by some inadvertence, to have overlooked the fact that a. proceeding in error is essentially a new ease, requiring a petition and service of summons, or waiver thereof by the defendant; that it is not like an appealed case which goes into the appellate court bearing the same title which it had in the court below and without the necessity of service, of process of any kind upon the defendant. To cure the trouble, plaintiff in error asks leave to amend his petition by adding or substituting the name of the executor for the name of the decedent. "We have examined the authorities, which are somewhat meager, bearing upon the question, to determine whether we have jurisdiction upon which we can base any authority to permit the amendment of the petition — which we should be glad to do if we had the power to do it — but we are confronted with the ease of Kennard v. Kennard, 35 Ohio St. 660, where a situation arose not precisely the same, but so near it as to throw great light upon our duty. The syllabus is as follows:

“Proceedings in error cannot be instituted in the name of a deceased party; if the heirs or legal representatives of such party seek to institute such proceedings, they must do so in their own names.”

The petition in error in the cited case which went up from Butler county to the Supreme Court, was filed on September 22, 1879, to reverse a judgment rendered by the district court of Butler county, April 21, 1877, in favor of George W. Kennard against George G. Kennard. At the time of the filing of the petition in error the nominal plaintiff in error was deceased, he having died on April 8, 1878. Mary Ann Bartlow and others, his heirs at law, now moved the court to revive the proceedings in error in their names. The decision is Per Curiam. It is very short and I will read it:

“George G. Kennard, the alleged plaintiff in error, having died before the filing of the petition in error, the attempt to institute a proceeding in error in his name was ineffectual. To constitute a proceeding in error, there must be a plaintiff in error. If there is no plaintiff in error, the court acquires no jurisdiction of the cause. If the heirs or legal representatives of a deceased party seek to institute proceedings in error they must do so in their own names, and not in the name of the deceased.

“Motion overruled and cause stricken from the docket.”

This was a ease where the nominal plaintiff in error was the person deceased. In the case before us it is the nominal defendant in •error, but the language of the Supreme Court and the reason for it manifestly are as pertinent to the one ease as to the other. It is as-essential that there should be a defendant as that there should be a ■plaintiff, and if there - is no defendant in error, then upon parity of reasoning, the court has no jurisdiction of the case. The court there-refused the application of the legal representatives to revive the proceeding in error in their names, and that is substantially the same as-the attempt which is made here to amend the pleading by substituting the name of the executor for that of the decedent. We see no escape-from this case, and, indeed, before discovering it, we felt strongly impelled by our own reasoning to arrive at the same conclusion.

The case of Kennard v. Kennard, supra, was approved, without, report, in Waldron v. Fuchs, 62 Ohio St. 633. The case of Smetters v. Rainey, 14 Ohio St. 287, is somewhat in point and it was approved in Burke v. Taylor, 45 Ohio St. 444 [15 N. E. Rep. 471], and should be read in connection with the case to which I have referred. The case of Abair v. Bank, 2 Circ. Dec. 165 (3 R. 290), decided by the circuit court of this circuit, the opinion being pronounced by Judge-Scribner, is also to some extent in point: I cite it without reading it.

Our judgment is that the motion for leave to amend the petition should be overruled and that the motion filed by the executor for a, dismissal of the petition in error should be sustained.

Kinkade, J., concurs.