author: Hay, J.

text:
    (Third Circuit — Hancock Co., O., Circuit Court
    May Term, 1897.)
    Before Day, Price and Norris, JJ.)
    ELIAS FOX v. THE CITY OF FOSTORIA.

      Municipal corporation located in tivo counties, may be sued in either county—
    When the territory comprising a municipal corporation is located in two counties, partly in each, the corporation lias a situs in both, and suit against it may be brought in either, at the election of the plaintiff.

      Same — Summons^on defendants in other county—
    When suit is brought in one of the counties in which a municipal corporation is situated, it is properly brought, and summons, on the petition filed therein, may be issued to any other county, against one or more defendants. Such summons may be served on the mayor of the defendant corporation.

      Same — Mayor’s office located in county other than where suit brought — Service by sheriff of other county—
    Where a petition, stating a cause of action against- a municipal corporation, was filed in one of the counties in which such corporation has a situs, and summons was duly issued and served on the mayor thereof, in the other county, at the mayor’s office in said municipal corporation where the said mayor has his office and residence, and return of such service was made to the court in the county where the petition was filed. Held: This accomplished the commencement of an action, and gave to the court full and complete jurisdiction of the defendant corporation and the subject matter of the action.

      Water-works — Extent of right of municipal corporation to use stream for water supply—
    A municipal corporation, being the owner of lands lying on a natural water course, has a legal right to gather its water supply from such water course, by proper appliances erected for the purpose; but it may not, in exercising such legal right, permanently dam or obstruct the flow of the water thereof to the substantial hurt of other riparian owners, or to the injury of the water course itself. Such dam or obstruction is a nuisance per se, and will in every instance be abated by the mandatory order of the court, unless equitable estoppel has arisen.

      Equitable estoppel — When arises—

    Equitable estoppel is only called into existence for the prevention of wrong or the redress of injury; and to create it, there must be some element of wrong or fraud present in the action of the party creating it.

      Same — Never arises by implication — Failure to speak—
    Equitable estoppel can never arise by implication alone, except by some conduct which induces action in reliance upon it, to an extent which renders it a fraud to recede from what the party has been induced to except. Nor will it arise because of silence, unless there is a duty to speak.
    Same—
    Before the remedy of equitable estoppel can be invoked, there must be some injury to be redressed or prevented.
    Appeal from the Court of Common Pleas of Hancock Co.
   Hay, J.

The plaintiff’s action is to procure the abatement of a nuisance by a mandatory order of the court.

The plaintiff shows in his petition, that there is a natural water course running through his farm-lands and draining them; and into which he has constructed a system of tile underdrainage, for his premises, which system, heretofore, served all purposes of drainage for his farm and is his only outlet; that the defendant, the city of Fostoria, has constructed water works and a system of sewerage for the use of the city, and has arranged to get its necessary supply of water from this same natural water course, at a point on the city’s property, immediately below and adjoin-in the plaintiff’s lands; and in furtherance of the purpose of gathering water for the use of the city, has erected a dam across the said water course. That the said dam is of solid masonry and permanent in its character, and has the effect to obstruct the flow of the water and to back it onto plaintiff’s premises, flooding his lands, choking his tile drains, destroying his crops and injuring his property in every way. He also shows that the obstruction and injury is to be continued indefinitely, and the effect will be, not only to obstruct the free flow of the water, and damage to plaintiff, but that the dam will destroy the channel of the water course, by causing deposits of sand, soil and other material, The prayer is that the city, and its officers and agents, be restrained from maintaining the dam, or any dam or obstruction, or in any manner obstructing or interfering with the natural flow of the water in said stream or natural water course; and that the city, by the mandatory order of the court, be required to remove the obstructing dam from said stream.

The defendant city, by its answer, says, first: The court has no jurisdiction of the defendant city, or of the subject of the action; for the reason that the defendant is a municipal corporation, created under the laws of Ohio, situated and having its offices and place of business in Seneca county, Ohio, and that no service of process or summons has been, or can be, made upon it in Hancock county; but it has been brought into court by means of a pretended process and service issued by the clerk of Hancock county and served in Seneca county by the sheriff of Seneca county. Second: That plaintiff is estopped to say and insist that the appliance, called by plaintiff a dam, shall be removed. For it says: it has constructed waterworks anda system of sewerage at an expense of more than $500.000; that this natural water course is the only source from which it can secure its water supply for the use of the corporation, and to guard against loss by fire; that the said appliance, or dam, is necessary to enable the city to procure its water supply for all purposes; that the construction of the dam has not obstructed the natural flow of the water or backed it on plaintiff to his injury; that it will greatly inconvenience and damage the city^ — will practically destroy the usefulness of the water works and sewerage systems, to remove the said dam or appliance; that it was constructed with the full knowledge and acquiescence of plaintiff, without any objection on his part, and with his active aid. and assistance; so that, under the circumstances, plaintiff ought not to be heard to ask its removal. There is also contained in the answer a denial that the dam causes the water to back upon and overflow plaintiff’s land, or interferes with his drainage, or chokes his tile, or injures his crops any more now than before the construction of the said dam. A reply denies all new matter in the answer setting up a substantive defense to the claim made in the petition.

This state of the pleadings presents three issues of law and fact necessary to be considered and decided, in order to a proper disposition of the case: 1. Has the court jurisdiction of the defendant and the subject matter of the action? 2. Does the dam or appliance obstruct the natural Sow of the water, to the nuisance and hurt of the plaintiff? 3. Is the plaintiff estopped by his conduct, to ask and insist on the removal of the dam, if it is an obstruction?

1. Jurisdiction is the right and power to hear and decide, and is essential to the validity of the judgment or decree entered. If the court has not jurisdiction of the matter adjudicated, the judgment rendered is of no validity or binding force whatever, but is absolutely void. Hence, the question of jurisdiction, raised by the answer, is a very important one in this case, since the judgment asked to be rendered, depends for its validity upon that fact appearing, affirmatively, of record. Jurisdiction- is acquired, ordinarily, by commencing an action — filing a petition, containing a statement of the facts touching which relief is asked, in the proper court, against the proper party, and causing the proper process to be issued by the clerk, and served by the sheriff or other officer or authorized person. When this is done, jurisdiction attaches, and the court is clothed with right and power to hear and determine all questions properly arising. The commencement of the action — the time, place, parties, process — the various steps necessary to be taken, so that an action is pending in a court of competent jurisdiction, is entirely the subject of statutory provision, various sections of the code of civil procedure making full and ample provision for the proper commencement of civil actions, and so plain are these provisions there need be no going wrong. In this case, the acts necessary to exhibit jurisdiction, or the absence of it, are all conceded by the parties, and are as follows: The cause of action arose in Hancock county. The plaintiff’s farm and residence are in the same county. The defendant, the City of Fostoria, is a municipal corporation, created under the laws of this state, and is situated in Seneca and Hancock counties. The mayor resides in the city in Seneca county, and has his office in Seneca county, The petition in the case was filed in the court of common pleas of Hancock county; a summons was duly issued, on precipe filed for that purpose, directed to the sheriff in Seneca county, who received it and duly served it on the mayor of the city of Fostoria, at the office of the mayor thereof, in the city of Fostoria in Seneca county, and made return of such service to the court of Hancock county,

Did all this accomplish the pendency of an action, and give the court of common pleas of Hancock county jurisdiction ? is the question. A careful consideration of the provisions of the various sections of the code, having reference to the subject, leads us to the conclusion that jurisdiction was acquired by the lower court.

Section 5026, Revised Statutes, provides: “An action against a corporation created under the laws of the state, may be brought in the county in which such corporation is situated, or has its principal office or place of business. ” The city of Fostoria is situated in both Hancock and Seneca counties, and has its office of mayor in Seneca county; and under the provisions of the section, just now quoted, the action might, with entire propriety, be brought in either county, at the election of the plaintiff. The suit having been commenced in Hancock county, where the city has a situs, we hold the action was rightly brought. Section 5038 Revised Statutes provides: “When the action is rightly'brought in any county, according to chapter 5 of this division, (sec. 5026 is part of chapter 5), a summons may be issued to any other county, against one or more of the defendants, at plaintiff’s request.” Section 5044 Revised Statutes provides: “A summons against a corporation may be served upon the president, mayor, or chairman,or other chief officer.”

The provisions of the three sections, just quoted, it is believed, furnished ample authority for the course pursued in instituting this case, and it follows the court of common pleas was clothed with jurisdiction, which was transferred to this court by the appeal.

2. As to the second proposition: Does the dam,, erected by defendant, obstruct the natural flow of the water, to such an extent as to be hurtful to plaintiff, not much need be said. This needs no elaboration,for it goes without saying that a dam of solid masonry, built across a running stream of water, will most decidedly and to the utmost of its ability, dam things, and cause the running water to be obstructed and to back up and overflow. The facts appearing are, that the channel of this water way is only twenty feet wide, that defendant has constructed a dam of solid masonry to the full height of its banks in fourteen of the twenty feet, leaving an open way of only six feet, through which, when the gate is opened, the water can flow unobstructed. More than two thirds of the entire channel is closed effectually and permanently. It is clearly proven that this dam is an obstruction; that it, in times of high water, seriously injures the property and property rights of the plaintiff; so much so, that the court is of opinion he is entitled to have the relief he seeks, unless he has estopped himself, in equity, by his conduct in the transaction of constructing the system of water works and sewerage, and especially the dam as a means of supplying the system with necessary water. 3. The claimed estoppel by conduct is based on these facts: The defendant city constructed its water works and sewerage system at an expense of more than a half million dollars, to be supplied with water from the water course running through plaintiff’s farm. Plaintiff had knowledge of the city’s purpose, and saw the act of construction going forward, saw men at work in the building of the improvement; and actually furnished some of the material for the construction of the dam, and knew, at the time that it was to be used as an appliance for gathering dr impounding the water, from the' channel of the water course, to supply the said system of water works and sewerage; and during all the time it was in course of construction, plaintiff being fully aware of what was going forward and of the purposes of the improvement, yet he was silent and made no objection or protest against it, but apparently acquiescing in and - encouraging its construction and the expenditure of such vast sums of money, until the expenditure was made and the said public improvement completed. It is assumed by the defendant city that the removal of this particular dam,as now asked, will entail great loss and damage on the city — will in fact involve the abandonment and entire destruction of the two works; or, the expenditure of many thousand of money, to retrieve the situation and preserve the systems for the beneficial use of the municipality.

These are all the facts and assumptions upon which is predicated the claim of estoppel. It is observed that no claim is made,or attempted to be established,by the evidence, that plaintiff misrepresented the facts or mislead the city, in any way, or that he induced the defendant, by any act, conduct or statement of his, to do or not to do anything in the premises it would not otherwise have done or left undone. Plaintiff committed no affirmative act, but simply remained silent. • Mere silence will not create an estoppel,unless there is a duty to.speak; and it does not appear there was, in this case, any such duty resting on plaintiff. The defendant city had a legal right to construct water works and sewers and to gather its water from the stream in question, having due regard to the rights and uses of other riparian owners, without let or hinderance from any such ownpr, and the plaintiff was not bound to interfere or object. He had the legal right to refrain from interference, and his knowledge that the city was exercising its legal rights in constructing the improvement, did njt require him to protest against it, under penalty of the loss of his own rights. The plaintiff simply attended to his own business, and allowed the city to carry forward to completion, its business in peace and quiet; and in all this there is scarcely to be found a single element of equitable estoppel. In the 107 N. Y. 310, Justice Peckham, now of the United States Supreme Court, formulating the opinion, it is held: “To create equitable estoppel, the person sought to be estopped must do some act or make some admission to- influence the conduct of another, which act or admission is inconsistent with the claim he now proposes to make; and the other party must have acted on the strength of such act or admission.” 1 A. S. R. 822. Again, “in the case of Wheaton v. North British and Mercantile Insurance Company, 76 California 415: 9 A. S. R. 216, it is said: ‘‘Equitable estoppel is only called into existence for the prevention of wrong and the redress of injury. There must be some element of wrong in the action of the party creating it. He must know, or have sufficient reason to believe, that another will place himself in a different position, or subject himself to additional injury in consequence of the action or representation.” In the same case, 9th syllabus, it is said: ‘‘If no act has been done or left undone, in reliance on the action or non-action of the party claimed to be estouped, there can be no estopple. An estoppel can never arise by implication alone, except by some conduct which induces action in reliance upon it to an extent which renders it a fraud to recede from what the party has been induced to expect.” All the authorities are of this import. The element of fraud or wrong is essential to constitute equitable estoppel; and before the remedy can be called into effect, there must be some injury to be redressed or prevented. In this case there is no element of fraud or wrong ou the part of plaintiff appearing. He did no act, made no declaration or admission for the purpose of influencing the conduct of the city with reference to the matter of constructing the public improvement, and the city authorities were in nowise influenced, and did nothing, and left nothing undone, in reliance on the action or non-action, conduct, or representations, of the plaintiff, in any sense whatever. So the essential element of wrong is wanting, and the injury which it is assumed will come to the defendant city if the prayer of the petition is granted, it seems to us, is greatly magnified, if it is not altogether an assumption, Beyond the mere expense of constructing a proper appliance for gathering the necessary water to supply the needs of the city, we are unable to perceive how any injury can result from the removal of the dam. The legal right of the city to’gather, and store away, its water supply from the surface water of the water way in question, in a proper way,, is not called in question by plaintiff, or doubted by the court. No proposition to deprive the city of this right is involved. No assault is made, or suggested, against the defendant’s water works system, or its right to get its supply of water from the natural water way; but only on the character of the appliance being used to get it; that is said to be an obstruction and a nuisance hurtful to plaintiff, and the only relief asked, or that will be granted, is that the defendant city be not allowed to obstruct the natural water way, to the injury of plaintiff, but that it be required to gather its supply of water in a proper manner, and by appliances that, while they may be effective, will be not at all obstructive. The court is of opinion this can be . done easily and cheaply. The channel of this stream is only some twenty feet wide, and about five feet in depth; certainly not so formidable and vast, but that the engineering science, in this dawn of the twentieth century, can be relied on to contrive some means of diverting a portion of its water, into the city reservoirs, for a few brief hours at a time, at long intervals, and leave it free, and altogether unobstructed, the residue of the time.

The best interest of both, plaintiff and city, lies in the preservation of this natural water way in all its integrity. It is not to the interest of either that it be obstructed unnecessarily and its efficiency lessened or destroyed, and they should make common cause in preserving it from injury. We think these parties should not be found litigating con-earning the matter. Their interests are not adverse, but identical, and it is unfortunate that sufficient conservatism and wisdom has not .been developed to lead them to perceive the true situation, and so act in harmony as to best serve and preserve their mutual rights and interests.

Geo. H. Phelps and O. D. Dwiggins, for Plaintiff.

J. M. Bever, J. A. & E. V. Bope, for Defendant.

It is urged that “plaintiff is not entitled to injunction in .this case, because he has a remedy at law by action for damages etc. It may be conceded plaintiff might bring and maintain suits for damages in every instance where he suffers damage, and might recover; but inasmuch as the obstruction here is permanent, entailing damage continuously, and necessitating frequent and continuous litigation with uncertain results and certain costs, expense and trouble, we suggest that the remedy at law is not adequate.

We think the best thing to do, under the circumstances, ib to remove the occasion of litigation, and leave the parties free to pursue their respective ways, unvexed by pending law suits, as neighbors should.

There will be a mandatory order removing the dam, and time will be given for its removal until November 1, 1897, and’defendant is required to pay the costs.


source: Caselaw Access Project

author: Day, J.

license: Public Domain

text:
    (Third Circuit — Logan County, O,. Circuit Court
    Feb. Term, 1897. )
    Before Day, Price and Norris, JJ.
    THE STATE OF OHIO EX REL F. C. HAMILTON v. C. D. CAMBPELL, AUDITOR OF LOGAN COUNTY.

      Toivnship matters — Subject of general nature — Special acts unconstitutional—
    The subject matter of townships — the division and creation of a civil township — is of a general nature, and can only be legislated upon and regulated, by laws which are given and have a uniform operation throughout the state, in every county in the Btate.

      The Act of the General Assembly, passed March 17, 1896, detaching territory from Perry and Bokescreek townships, Logan county, Ohio, and creating a new township of Logan, in said county, .is • not given and does not have such uniform operation, and is therefore invalid, being in contravention of the provisions of sec. 26, art. 2, of the constitution.
    Error to the Court of Common Pleas of Logan county.
   Day, J.

The action in the lower court was in mandamus. The relator there, plaintiff in error here, was, and is, treasurer of Perry township, Logan county, Ohio, and the defendant Campbell, is county auditor of the same county. In. the application for mandamus, it is made to appear there are certain moneys, in a sum stated, in the possession of the treasurer of Logan county, which were levied and collected as taxes for school and other purposes, for the use and benefit of Perry township in said county,and payable to the relator as such treasurer, under the provisions of law, on the order and direction of the auditor; that it is the' duty of the auditor to order this money paid over to the said treasurer, to be appropriated to the use for which it was levied and collected; yet, the auditor refused, and still refuses to perform such duty, although he has been requested to do so. The prayer is for a peremptory writ of mandamus. An alternative writ issued, requiring the auditor to make the necessary order, to enable the relator to be put in possession of the said fund, or show cause why he should not.

In obedience to the command of the alternative writ the respondent made answer and set forth, in detail, the facts, which he claims furnish him a lawful excuse for omitting and refusing to order payment of the said moneys to the relator. In this answer it is conceded that relator is the treasurer of Perry township, and as such entitled to be put in possession of all money collected for, and payable, under the law, to the use of said township; that it is the official duty of the auditor to order the payment of all such money to the relator; and the auditor pleads as a lawful excuse for his refusal to order the payment over of the money in question, which refusal is admitted, that the General Assembly of Ohio, on March 17, 1896, by a proper legislative enactment,duly passed into a law,detached certain portions of the territory comprising the said township of Perry, and certain portions of the territory of Bokescreek township, and created a new township, and named it Logan; and that the money in question, under the provisions of law, was required to be apportioned to, ordered paid, and paid over to the proper treasurer of such newly created township, all of which has been done. To this answer the relator interposed a general demurrer, which the record shows, the court of common pleas overruled, and the relator, not desiring to reply or further plead, a judgment was entered on the demurrer denying the relief prayed, dismissing the relator’s application, and requiring, him to pay the costs. This disposition of the matter not being satisfactory to the relator, he prosecutes error here, and seeks a reversal of the judgment of the lower court, and judgment of this court, granting a peremptory mandamus as prayed in the petition; and the single claim of error assigned and relied on, isas to the ruling and judgment of the court on the demurrer to the answer.

The sole question arising on the demurrer and presented by the record, is as to the validity of the act of March 17, 1896, creating the new township of Logan. If the act is valid, so that a new township was lawfully created, the judgment of the court below was' right. That fact would furnish a complete defense to the relator’s claim, exonerating and excusing the respondent from making the desired order. But, if the act is invalid, for any reason, so that, in law, a new township was not created, then the fact stated in the answer constitutes no defense to plaintiff’s claim and furnishes no proper,lawful reason or excuse why the defendant should not make and issue the necessary order; and the issuance of such' document must be compelled by the mandatory order of this court.

Is the act of March 17, 1876, creating the new township, invalid? Its invalidity is urged upon a number of grounds, among others, that it is a special act conferring corporate power. Unquestionably the act is special and local, and very likely it confers corporate power, and is invalid for that reason; but the main contention is that it contravenes sec. 26, of article 2, of the constitution, which provides: “All laws of a general nature shall have a uniform operation throughout the state.’’

That the act in question is local and has no operation outside of Logan county, is conceded and, if it is also special or local in its nature, existing only in Logan county, its enactment was proper, and it became and is a valid law. It would be otherwise if the subject of the act is of a general nature. The legislature, under the general grant of power, may pass appropriate special or local laws, and give them only local application or operation; but under the restrictive provisions of section 26, article 2, of the constitution. This may not be done, if the subject of legislation is of a general nature.- Legislation on such general subject cannot be limited in its operation to a locality of the state, merely, but it must be made to apply and operate, with uniformity, in every locality throughout the entire state- — in every county of the state. On this proposition, Judge Burket, in Hixson v. Burson 54 Ohio St., 470, speaking of the entire court, says: “It is certainly safe to say now that every subject of legislation is either of a general nature on one hand, or local or special on the other. It cannot be in its nature both general and special, because the two are inconsistent. If it is of a general nature, the constitution requires that all laws — not some laws — on that subject shall have a uniform operation throughout the state.” Confessedly the act under consideration only applies and operates in Logan county, and is invalid, if its subject is of a general nature. So the whole question in this case, then, hinges and turns on the one proposition, is the subject matter of the act of a general nature, or local, merely? And the problem the court has, is to determine that fact, and so determine the validity or invalidity of tha act in question.

There is such a radical difference in the legal meaning of the words employed in formulating the proposition: — ‘‘of a general nature:” — ‘‘of a special or local npture,” — that it ought not to be difficult to determine the character of any given subject-matter of legislation, whether of general or local nature; yet there seems to be some confusion on the subject, either, among the lawyers or the courts, or both, for the courts are being called upon, constantly, to decide questions arising in reference to the matter; and it is even suggested in argument, that the court of last resort, in its givings out on the subject, has befogged it, and has been, in some measure, chaotic and inconsistent. The criticism, although probably submitted and intended in a jocular sense, is to an extent illnatured, and, we think, not deserved. From a careful reading of all the reported cases on the subject, decided by the fiupreme Court, no confusion or inconsistency has been noticed, but a very clear and consistent statement of a plain rule, by the application of which the problem is readily solved. In Hixson v. Burson, supra. Judge Burket uses this language:

‘‘But how are we to determine whether a given subject is of a general nature? One way is this: If the subject does or may exist in, or affect the people of every county in the state, it is of a general nature. On the contrary, if the subject cannot exist in, or affect the people of every county, it is local or special. — A subject matter of such general nature can^e regulated and legislated upon by general laws having a uniform operation throughout the state, and*na subject matter which cannot exist in, or affect the people of every county, cannot be regulated by general laws having a uniform operation throughout the state, because a ; law cannot operate where there can be no subject matter tobe operated upon.”

Applying the rule, thus plainly stated by Judge Burket, to the case under consideration, and the logical outcome, it seems to the court, cannot be made the subject matter of dispute or doubt. It is true the act of March 17, 1896, only assumes to deal with subject matters in Logan county, and in that respect is special or local; but the act, if valid legislation, has the effect to divide and detach portions of two existing civil townships, and to create, out of the detached territory, a new civil township. The subject of the legislation, therefore, is the division of existing, organized, civil townships, and the creation of other, new civil townships. Generally stated, the subject of the act, in question is a evil township.

Now, there are civil townships in every county in Ohio, and the people of every county in the state have a large interest in them; so that any thing that has reference to or affects such townships, affects the people of every county in the state. Again: The subject of townships — of dividing or creating a township — -is capable of being regulated and legislated upon by general laws, having a uniform operation throughout the state; as is conclusively evidenced by the fact that the General Assembly, very soon after 1851, when the present constitution went into effect, passed a general law on the subject, regulating it, and providing when and how, townships may be divided and new ones organized, which law still appeaxs upon the statute book,and remains in full force, substantially as enacted, and no attempt, to our knowledge, was made, until the year of grace 1896, to pass a local or special act on the subject.

Wm. W. and^John E. West, for plaintiff in error.

J. A. Odor, S. J. Southard and S. H. West, for defendant in error.

As has been stated, and as is common knowledge, every county in the state has a few townships within its limits, all of which are liable to division and to be erected into new ones, so that the subject of townships — creating a township and dividing a township — is so universal and all pervading — of such a general nature — that it may, with propriety, be said to exist and affect the people in every county in the state, and can be, as it has been for more than forty years, regulated and legislated upon by general laws, having a uniform operation throughout the state.

This,it seems to a majority of the court,amply and clearly fills the measure of a subject matter of a general nature, as defined by the Supreme Court, that can only be enacted into a law by giving the law a uniform operation - throughout the state. ' This is not done, or attempted in the act under consideration, and it follows that the legislation of March 17, 1896, creating a township in Logan county, called Logan township,is in conflict with the provisions of section 26, of article 2, of the constitution, and is invalid. If the conclusion reached is correct, then the lower court was in error in overruling the demurrer to the answer, and in-rendering judgment dismissing the petition; and the judgment is reserved with costs. This court rendering the judgment the common pleas should have rendered, sustains-the demurrer to the answer, and allows and orders that a peremptory writ of mandamus issue as prayed for by the-relator. Respondent must pay the costs,

Norris J., concurs.

Price J., dissents.

(This judgment was affirmed by the Supreme Court June, 1897, case of Campbell v. Hamilton, by an evenly divided court.)


author: Smith, J,

text:
    (First Circuit — Butler Co., O. Circuit Court
    Oct. Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    GEORGE K. SHAFFER & CO. v. THE C. H. & D. R. R. CO.

      Exceptions must be specific—
    An exception to the charge of the court as a whole when the greater part of it is correct, and exception to the refusal of the court to give requests to charge, as a whole, when one or more of such requests are incorrect, are too indefinite to be considered by a reviewing court.
    Error to the Court of Common Pleas of Butler county.
   Smith, J,

The errors complained of are that the court of common pleas excluded competent evidence, and admitted incompetent evidence over the objection of the plaintiffs — on the charge given to the jury, and in refusing to give the special instructions asked by the plaintiffs- — -and in overruling their motion and amended motion for a new trial.

Briefly stated, the claim of the plaintiff was, that they had shipped under a verbal contract with the defendant company, a common carrier, two car loads of barley, to be transported by it to Wheeling, West Va., and then delivered to one John Butterfield, the consignee, and that through the negligence and carelessness of the defendant this was not done, but the barley was greatly damaged,to the loss of the plaintiffs in the sum of $673, for which, with interest, they ask a judgment,

The answer in effect denies that there was any verbal contract between the parties as alleged. That the defendant company had only a line of railroad from Cincinnati to Dayton, Ohio, and that the only contract between the parties and under which this barley was shipped, was in writing, and was the regular bill of lading of the company — and that by the terms thereof, the defendant simply agreed to transport it to Dayton,and there deliver it in good order to a connecting line of railroad for shipment to Wheeling, and that it fully complied with such stipulation; that said contract further provided that if any loss ensued to the barley, the company in whose custody it was at the time of the loss, alone should be responsible therefor, and it denies that any damage resulted to the barley while in its custody. It also alleged that the contract contained a stipulation that no action should be brought thereon after one year from the time the cause of action accrued; and that more than one year had elapsed after the cause of action accrued, before this suit was brought.

It is manifest that if there was no verbal contract between these parties in regard to the shipment of the barley, and that the only contract was embodied on the bill of lading introduced in evidence, that the plaintiffs were not entitled to recover in that action. They sued on a verbal contract containing no limitation on the common law liability of the carrier. If they fail to prove such contract, or the evidence shows that the contract of shipment was in writing, and that it did contain limitations thereon,' it is fatal to the right of the plaintiff to recover on his claim as made, for the agreement proved is not the one sued on, and unless the pleadings are amended, and a claim thus asserted on the real contract, they must go out of court.

We think it entirely clear that the court very properly overruled the motion filed for a new trial on the ground that the verdict of the jury was against the weight of the evidence; and the action of the court in refusing to sustain' the amended motion, can not be reviewed by us, for the evidence submitted on that, was not incorporated into any bill of exceptions.

The evidence submitted to the jury, so far from making out a case against the defendant, did not in our judgment tend to do so — that is, to show that the barley was shipped on a verbal contract. The testimony offered by the plaintiffs on this point, was that of Mr. Shaffer only, and was in substance this: That some time prior to the shipment of the barley, he asked Mr. Smith, the freight, agent of defendant at Hamilton, what the rate of freight would be per 100 pounds of barley to Wheeling, West Va., and was told that it would be 15-| cents. That two or three days after this, he loaded two cars of defendant’s company standing on the switch west of the Miami river, with the barley, and sent word to Mr. Smith that it was in the cars, and sent to him three blank bills of lading and shipping directions, the written part of which was filled in by himself, two of which were, returned to him signed by Mr. Smith or by his authority, and one of which, was kept by Smith; and that soon after this the two cars were taken away by the defendant company; that at the time he asked' Mr. Smith for the. rate, no bargain was made between them as to the shipment; that Smith then told him he would ascertain about the rate and let him know, but that he did not do so; and that he had no future conversation with Smith about the barley or its shipment until after he heard of the damage to the barley at Wheeling. One of the bills of lading he kept, and forwarded the other to Butterfield, the consignee, at Wheeling. This was substantially the only testimony offered by plaintiffs as to any verbal contract, and it was not supplemented by any evidence offered by the defendant,for Smith expressly denied that he had ever made any verbal contract for the shipment of the b.arley, or any contract other than that contained in the bills of lading; which he also says he received from Shaffei with the written parts and shipping directions in the handwriting of the latter, which were then signed by him or his authority, and returned to Shaffer before the barley .was taken away. He further testified that Shaffer & Co. had been extensive shippers of grain by this railroad for many years, and that he kept the blank bills of lading of the company for his use in their shipments.' It is clear that if the bills of lading so prepared by Shaffer and signed by Smith constitute the contract between the parties, they contain stipulations which show the plaintiffs had no right to recover, and if so, upon what ground can they stand? It is plain that no one testifies to'a'verbal contract, for the most that can be claimed from Mr. Shaffer’s own evidence is that he applied to Smith to know what the rates would be, and that Smith told him what they would be.. He does not claim that he told Smith he would accept the rates .and ship the barley; nor can he claim that the contract was not in writing, or that he was ignorant of the contents of the bills of lading, for he prepared them himself, and sent them to the company for signature, and then shipped the barley; and he cannot now be allowed to say that he was ignorant of the terms of the contract signed at his instance and request.

We have looked with some care at the many exceptions taken by the plaintiffs to the rulings of the court, on questions of evidence. We think such rulings are generally correct, but there are one or two instances in which we think they are hardly defensible. .But they were on collateral questions, and did not, in our judgment, in the slightest degree, affect the question as to what was the contract in the case, and therefore the rulings were not prejudicial to the plaintiffs.

The same remark might be made as to one or two of the charges given or asked and refused; but in addition to this, we think the manner in which the exceptions were taken was too indefinite to justify us in reversing the judgment on that ground, even if the errors were prejudicial. The exception was taken to "the charge as a whole, yet much the greater part of it was correct; the exceptions to the refusal to give the charges as asked, was to them as a series, and not to each of them, and we think some one or more of them were incorrect, On a consideration of the whole case we feel constrained to affirm the judgment, with costs,

H. J£. Porter, for Plaintiffs in Error.

Thos. Millihin, for Defendant in Error.


author: Parker, J,

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    WILLIAM H. SCHAFF v. ALBERT W. ENSLEY, et al.

      Sale of stock of goods on notes, the stock to be security for the notes — Exchange of stock for city lot by purchasei — Resulting trust in favor of vendor of goods — ■
    Upon a sale of a stock of merchandise, by S. to E. on credit, possession thereof was delivered to E. with authority to sell therefrom at retail, but it was agreed that he should not allow the stock to become reduced, but should keep it intact by supplying goods in the stead of those retailed, and should not sell or transfer the stock of goods until the same had been paid for on payment secured to the satisfaction of S., and afterward, and when the value of the .stock was not greater than the amount of the indebtedness therefor, it was traded by E. for land, the title of which was taken to E. with the consent of S., but upon the promise of E.that upon the consummation of such trade he would convey said land to S., which he subsequently refused to do. Held, that E. held the title to the land in trust for S., and that the conveyance thereof agreed upon might be required by a court of equity.
    Appeal from the Court of Common Pleas of Lucas county.
   Parker, J,

This case is before the court by the way of appeal. The essential facts of the case are as follows: On the 10th day of August, 1894, William H. Schaff and J, B. Schaff, his father, being the owners of a stock of goods in Toledo, sold the same to Albert W. Ensley and R. R, Kindig, for $2350. Two hundred dolíais of the purchase price was paid in cash. Joint notes of the purchasers were given for the remainder, the first being payable on the 10th of August, 1894, each succeeding note being payable three months after the lime of payment of the one preceding, and the notes are for $250 and $200 each, the whole amount being $2150. This'stock of goods was situated in a store building owned by William H. Schaff. The grocery business had been carried on in this store building by Wm. H, and Jno. B. Schaff prior to that time. At the time the stock of goods was sold, Schaff also gave to Ensley and Kin-dig a lease on the premises for one year with the privilege of occupying three years, the rental to be paid being $40 per month. The stock of goods was not removed from the store building where it had previously been situated and where the grocery business had been carried on by the Schaffs. Afterwards — in December, 1894, Kindig retired from the business, disposing of his interest to Ensley, and was released from all obligation to pay these notes, or the purchase money,except as to four notes of two hundred dollars each — $800, which had been secured by mortgage upon real estate owned by Dorothy Ensley, the wife of Albert W, Ensley, one of the defendants in this case. No further payment was made upon the purchase money for this stock of goods than the $200 paid at the time of the sale and a payment of $50 at a later date; but, besides the cash payments, groceries had been received by Schaff, for which he had given credit upon these notes, amounting to something less than $100.

This was the situation of the case in March, 1895, when Ensley — -who was then the sole owner of this stock of goods under this purchase — agreed to trade the stock of goods to one Ryan for a lot in the city of Toledo, which trade was subsequently carried-out, the stock being put in at $850, and the price of the lot being $850. At the timé of the proposed transaction with Ryan,Ensley consulted Schaff as to this trade,and agreed with Schaff that, if he made the trade, the lot should be conveyed to him — Schaff; but first it was to be conveyed to Ensley, and by Ensley to Schaff; and it was further agreed between the parties that Schaff should allow and give to Ensley upon these notes,in consideration of the conveyance of this lot, a credit of $900, and that he should also credit to him the amount of the grocery bill as it-appeared at that date, and the $50 cash payment before-mentioned, which would make the whole amount of the credit $1069.87. This trade was made; a conveyance was made by Ryan to Ensley, but Ensley declines, or at least fails to niake a conveyance of the lot to Schaff, as agreed, and Schaff brings this action against Ensley and his wife to compel a conveyance of the property in pursuance of the agreement.

As I have said, one of the parties to the original contract involving the sale of the stock of goods and the other property included in the sale, was John B. Schaff, who has since deceased. It is contended here that the legal representatives of John B. Schaff should be parties plaintiff. But it appears that this contract for the conveyance of this property by Ryan to Ensley, and from Ensley to Schaff, was made with the plaintiff-William H. Schaff; and we hold with respect to that that if there is any enforceable right here, it is the right of William H. Schaff to have the conveyance made to him, and the question whether or not he shall account to another for any part of what he may receive through this litigation, is not now before us, and so need not be considered by us

Now it is contended by plaintiff that his rights under this contract for sale of this stock of goods and the other property which was sold at the same time, are such .that when he gave his eonsent to the trading of these goods and, other property to Ryan for the lot, a trust resulted in his favor which is entorceable in a court of equity,under which he may compel the making of this conveyance by Ensley to himself; and he also claims that this right is made more clear by an express promise made on the occasion of the trading of this stock of goods to Ryan for the lot, The contract for this sale of the stock of goods reads as follows:

“Know all men by these presents, that we, William H. Shaff, and J. B. Shaff, of Toledo, Lucas county, Ohio, in consideration of 12350. in hand paid,has this day sold and delivered to Ensley &• Kindig the following described goods and chattels to-wit: In store building on lot Twenty-eight (28) Potter’s Addition to Toledo, Lucas county, Ohio, located on the corner of Oak Street and Woodville Street., Also one grey horse, one double harness, single harness, meat wagon, one large top wagon, one open wagon, and one cart; including everything in the barn on said premises appertaining to said grocery business excepting papers in the desk in said house, which is to be reserved. Also excepting counters, shelves, ice boxes and racks. Also excepting contents of gasoline house except the gasoline. Also excepting the chickens and ducks and can fruits belonging to the house.
“It is further stipulated between the parties hereto, that no liquor is to be sold on said premises; that the stock of' goods must be kept up to its present standard; that the stock of goods must not be sold or transferred, unless the notes given therefor, are fully paid or secured to be paid to the satisfaction of the grantor.
“William H. Schaff
“J. B. Schaff
“Ensley & Kindig, Part.
“R. R. Kindig
“A. W. Ensley.”

, Much depends in this case upon the construction given to this contract. The plea of the statute of frauds is interposed as a bar to the enforcement of this contract, or as a b^r to the enforcement"of the plaintiff’s claim. It is clear that if there is a resulting trust, the statute of frauds is not a bar to its enforcement. It is equally clear under the authorities in Ohio, that an express trust may be supported notwithstanding the statute of frauds, and that those provisions of the English statute which prevented an express trust being raised except by writing, have never been incorporated in the statutes of Ohio. It has been held by the Supreme Court of Ohio in a number' of cases, that an express trust is enforceable though resting in parol.

According to our view of the case, upon this transaction-of'the exchange of this stock of goods for the lot, a trust arose in favor of William H.- Schaff,- partaking somewhat of the nature of a resulting trust, and somewhat of the nature of an express trust. It will be seen that the purchasers of this stock of goods were not authorized to sell, except at retail — -it is clearly implied that they are authorized to sell at retail. The stock of goods was to remain in the store where it had been at the time of the sale, and where the business had been carried on by Schaff, Any part of the goods sold at retail was to be replaced, so that the stock was to be kept intact. And then there is a further provision, that the stock of goods must not be sold or transferred — that is to say, the whole stock, unless the notes given therefor are fully paid, or secured to be paid, which, according to our view of the contract and the whole transaction, clearly implies, unless they are paid or otherwise secured to be paid, an understanding and agreement that the property sold should be held and bound as a security for the debt. Between the parties, it would be legally valid to reserve the title to the seller by parol. We are not hampered here, or bothered in any way by a consideration of the rights of any innocent purchaser or other person becoming interested in these goods without notice or knowledge of the rights of the seller. It is not clear that the' title of the goods was reserved; and yet much might be urged on that head, and there is much in the contract that tends to support the conclusion that there was not an absolute transfer of the title to these goods; that the possession given to the purchaser was conditional, that there was a condition placed upon the jus disponendi— the right to dispose of the property — which is one of the chief elements of a perfect title to property, and that that was not conveyed to the purchaser. At common law the seller of property has a lien upon it for the purchase price. As to personal property,it is held that where there is an unconditional delivery of the property this lien is waived; but to operate as a waiver of the lien, the delivery must be unconditional; and it is competent for the parties to deliver the property, and yet, by parol, to reserve the lien. It appears to us that the intent and purpose fairly to be gathered from the words of this contract was to reserve this lien, notwithstanding the conditional delivery of the property; and even if there was no reservation of the title, or- of the common law lien, still we think that under the well-settled principles of equity there was an equitable lien; and it is of the same effect, for the purposes cf this case, whether the common law vendor’s lien was retained, or a mere equitable lien arose or was reserved. The'vendor reserved the right to control the disposition of the property, The purpose was to have the property remain intact as security, so that it might be reached by him for the satisfaction of this claim for the purchase money. This claim, it appears, at the time of the transaction with Ryan amounted to more than the value of the stock of goods then remaining,so that, the seller of the property was virtually then the owner of it, in equity. That fact was recognized by all the parties to the transaction at the time of the exchange of the property with Ryan. We think, therefore, that the plaintiff was the equitable owner of the lot conveyed by Ryan; that under the well-settled principles as to resulting trusts, a trust resulted in favor of Schaff which may be enforced by compelling a conveyance of the property to him. In addition to that, there was an express agreement of Ensley at the time of the transaction, that if Mr. Schaff would consent to this exchange of property or trade, he would convey the lot received from Ryan to him — Schaff. This was clearly established by the testimony. After he had received the conveyance of the property,Ensley made the statement'to a^ witness that Mr. Schaff ought to be very well satisfied with the trade that he (Ensley) had made for him (Schaff), whereby he had acquired for him (Schaff) this property at a consideration of $900.

A. W. & E. H. Eckert, for Plaintiff.

Johnson Thurstm, for Defendant,

It follows, of course, that Dorothy Ensley has no right of dower that can be allowed to interfere with this claim, and that this is true also of the claim which is made for exemption in lieu of a homestead; therefore the decree will be as prayed for, requiring the conveyance of this lot to William H. Schaff, free from dower and claim for exemption in lieu of homestead. The costs will be divided equally,


author: Smith, J.

text:
    (First Circuit — Butler Co., O., Circuit Court
    October Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    MARY M. MOON v. THE CITY OF MIDDLETOWN.

      Injury from excavation in street — Liability of city — ■
    It is the duty of a city to keep its streets “open, and in repair and free from nuisance”, and when in the course of a public improvement it becomes necessary to make an excavation, it is the city’s duty to have the excavation guarded by a railing or suitable protection or a signal light to warn persons using the street of the danger they incur by so doing. Its failure to do so renders it guilty of negligence and a want of ordinary care.

      Same — What not contributory negligence—
    It is error for the court to say to the jury- as a matter of law, that the more facts that the plaintiff may have seen men at work on the sidewalk on the afternoon before the.injury, and knew they were about to make an excavation for the purpose of putting in a sidewalk renders her guilty of contributory negligence and bars her recovery. Such facts in themselves are not conclusive.

      Evidence — Specifications in contract—
    The specifications given to the contractor by the city, showing how the work of laying the sidewalk should be done, and the written report of the engineer, showing the' excavation necessary tobe made, are not competent evidence of the depth of the excavation, and should have been excluded.
    Error to the Court Common Pleas of Butler county.
    The plaintiff in error, Mary M. Moon, being the plaintiff in the court below, resided on Garfield Avenue in the city of Middletown. The said city,in November 1897, through certain contractors, was putting in cement sidewalks on said-street, making the necessary excavations therefor. •
    Late in the afternoon of a dark November day (November 23), an excavation for said purpose was made in /the sidewalk immediately in front of the premises of plaintiff.
    After night-fall of that day, the plaintiff, in attempting to pass from her premises to the street, fell into the excavation, and was severely injured.
    She brought suit against the city, on the. ground of negligence, claiming that said excavation was left with no light to indicate its location and unguarded by - any railing or suitable protection, ánd asked for damages in the sum of $5,000.00. .
    • The city answered, denying the injuries, ' averring that the contractor having charge of thejwork, had placed lights on the street, and alleging negligence on the part of the plaintiff.
    A trial was had, resulting in a verdict for the defendant.
   Smith, J.

We are of the opinion that the weight of the evidence in this cause is, that the defendant in error,the city of Middle-town, was guilty of negligence and want of ordinary care, in making the excavation in the sidewalk in front of the premises of the plaintiff, and in leaving it wholly unguarded by any railing or suitable protection, and without the necessary signal lights,to warn persons using the streets, as they were authorized to do, of the danger they incurred by so doing. And that neither the evidence offered on the part of the plaintiff, or that introduced by the defendant, showed that the plaintiff, at the time she received the injury from falling into this excavation, was guilty of negligence which contributed to her injury.

There is no controversy as to these facts, viz: That the excavation was made by the employes of the defendant late in the afternoon of a dark November day, (November 23); that the men were employed in doing this but an hour or two; that the excavation was of sufficient depth to be dangerous to persons walking along the pavement without knowledge of its existence; that the plaintiff, while attempting to walk across the pavement after night-fall of that day, fell into the ditch and w*as severely injured; that the defendant, or its agents, left no railing about the excavation. And it quite clearly appears that a person coming from the house of the plaintiff, as she did, to cross the pavement in front of her lot, could not see any light or other signal to warn her of danger; and even if it be true, as claimed by the defendant, that a light was placed on a pile of brick, near the premises, (which is exceedingly doubtful on the evidence), we are satisfied, that this was not sufficient precaution under the circumstances of the case.

Nor was the evidence, as we have said, sufficient to sustain the claim of the defendant that Mrs. Moon was' negligent. She testifies expressly, that she had no knowledge whatever, that the men had been at work on the pavement that afternoon; that she was in the rear of her house all the afternoon ironing, and was not in the front yard where she could see them at all, and that the first she knew of it, was when, in the dark,she stepped from her yard onto the pavement, and fell into the ditch. There is evidence which tends strongly to confirm her statements, aside from the fact that the presumption could hardly be, that she would voluntarily walk into such a place, if she had known of it; the only evidence tending, in any degree, to show that she knew that the men had been at work there, was the testimony of the witness, who says he knew her by sight, and that during the afternoon, he saw her, or a person he took to be her, come into her front yard and call her little girl; this was denied by the plaintiff, and it was testified by another witness, who was at the house of the plaintiff at the time, that it was she herself who did this.

If the jury, on this state of facts, found that the plaintiff was negligent, the verdict was manifestly wrong. We think, on the facts, the trial judge should have set aside the verdict and granted a new trial. But in addition to this, we think the court erred in its rulings as to the admission of evidence, and in several charges given to the jury at the request of the defendant’s counsel.

The deposition of the husband of Mrs. Moon was taken, but he died before the trial. At the trial, on the motion of the defendant, several questions put to the witness and the answers thereto, (which we think were competent), were stricken out, and proper exceptions taken. Mr. Moon had testified, among other things,that he had been at home with his wife all that afternoon, and was asked, whether he had any knowledge of Mrs. Moon leaving the premises before, or whether she was there all the afternoon before dark. The husband answered that he had no such knowledge, and that she was in the back part of the house all afternoon, ironing. As to the objection to the questions that they were leading, we think they were not, and that the answers were competent. The witness was also asked to state the condition of his wife after the accident. He answered, “that it was about three months of the time that she was deprived of being able to go about with her work, for if she did, she had to cripple around, and since then she has been crippled more or less of the time:. ” We see no objection to this answer, and it should not have been stricken out. There are other like rulings which we do not consider it necessary to refer to.

The general charge of the court, in our opinion, correctly stated the law and,if it had been allowed to stand,the plaintiff would not have had good ground to complain of it; even of that part which states, “that if the plaintiff, by her negligence and carelessness, contributed in the slightest degree to her injuries, that she could not recover”; but the counsel for the defendant asked the court to give certain specific charges, some of which were given, and the plaintiff excepted. No, 3, as given, was as follows:

“If the jury find from the evidence that Mrs. Moon saw the men at work on her sidewalk on the afternoon of the day when the injury took place, and knew that they were about -to make an excavation, in the sidewalk, for the purpose of making the improvement, and that in the evening she fell on account of such excavation, she was-guilty of contributory negligence, and not entitled to recover from the city, notwithstanding that she was injured, and the jury must bring in a verdict for the defendant. ”

We think that this states tne law altogether too strongly against the plaintiff. We think, too, that the court was not authorized to say to the jury, as a matter of law, that the mere fact that the plaintiff may have seen men at work on her sidewalk that afternoon, and knew that they were about to make an excavation in the sidewalk for the purpose of making the improvement, and she afterward fell into it, made her guilty of contributory negligence, and prevented a recovery by her. Whether, under the circumstances of the case, she was guilty of contributory negligence, was a question for the jury to settle under appropriate instructions by the court. The facts assumed by the court, if proven, were proper to be considered by the jury in determining whether she was negligent, and thereby contributed to her injury, but in themselves are not conclusive.

Donley & Bhonemus, and W. S. Harlem, for Plaintiff in Error.

Ben Hamoitz, for Defendant in Error.

We think, too, that the specifications given to the contractor, and the written report of the engineer which were admitted in evidence, were not competent, and should have been excluded.

For these reasons the judgment will be reversed, and a new trial awarded.


author: King, J.

text:
    (Sixth Circuit-Lucas Co., O., Circuit Court
    June Term, 1897.)
    Before King, Haynes and Parker, JJ.
    MARY H. HUNT v. SAMUEL A. HUNTER, TREASURER, et al.

      Side walks — Assessment limited to 25 per cent, of value of lot—
    Sec. 2271, limiting assessments for street improvements to 25 per cent, of the value of the property, applies to side-walks.

      Assessments within five years on corner lot for improving intersecting street and side-walk on one of them are within the 25 per cent, limitation—
    Where there are assessments on a corner lot for the improvement of two intersecting streets, and for constructing a side-walk on one of them, all within five years, the three assessments may all be added together, and if they in the aggregate amount to more than 25 per cent, of the value of the property such surplus is illegal.

      Ttvo different improvements such as for pavement and side walk within five years — Assessments in the aggregate not limited to 25 per cent, of value of lot—
    Assessments for paving a street and for building a side-walk, are for different improvements, and there is no statute limiting the amount of assessments for two different improvements, such as paving a street and making a side-walk, if made within five years, in the aggregate to twenty-five per cent, of the value of the property.

      Two assessments for paving same street within five years not within 20 per cent, limitation—
    Two assessments within five years for improving the same street are not limited to 25 per cent, of the value of 'the lot in the aggregate.
    Sec. 2283, relates to improvements of intersecting streets.
   King, J.

In this case, which is No. 1117, and in Nos. 1118 and 1119, submitted with it, we have come to an opinion as to the law governing the case. We have not had time to go over all the papers in the case to get at what the facts are,but shall leav9 them to counsel until later, in preparing the journal entry. I can however, indicate in this one case — ■ in which I have examined the papers — the theory upon which we have proceeded. In the case of The City of Toledo v. Cole, there was an assessment made upon Mr. Cole’s lot on the —day of July, 1891, for the paving and improving of Lenk street, upon which it is situated, in a sum the amount of which I have not before me; and on May 15, 1893, there was a second assessment of $89.12, levied and assessed upon that lot for building a side-walk, and in 1895, a third assessment for paving and improving Wisconsin street, amounting to $32.30. The court of common pleas found the value of said lot to be $275.00 before the improvement of Wisconsin street, and $300.00 after it was improved. It is claimed by the defendant that these assessments may be added together, and if they exceed twenty-five per cent, of the value of the lot, they are illegal. The court of common pleas held that the Wisconsin street assessment was illegal, and adjudged that the owner should not pay that; and, with that, we are in full accord; but the question is, whether the side-walk was illegal. The side-walk assessment was made upon Lenk street, upon which there had been previously assessed a certain amount for paving tax, We think that, clearly, under the authorities, these were two separate improvements, and that there is no statute limiting the amount of an assessment or percentage of an assessment for two different improvements, such as in this case — the paving-of a street and the building of a side-walk adjoining the lot; that is, no limitation which will render either invalid because the sum of the two shall exceed twenty-five per centum. The limitation provided by the statute, secs. 2271 and 2283, is, that no assessment for any improvement shall exceed twenty-five per centum, and that — as provided m 2283 — -if the improvements are com, pleted on intersecting streets, within the period of five years,so that the two joined together, shall exceed twenty-five per centum, they shall be illegal beyond that limit. But here it will be noticed that the first two assessments were upon the same street, and, being upon the same street, they cannot be added together; and that, so far as the owner of the property is concerned, leaves only the question whether the side-walk assessment exceeded twenty-five per centum, and whether the limitation found in sec. 2271, applies at all to the-side-walk. Asa matter of fact, the $89.12, exceeds twenty-five per cent, of the value, of the lot as found by the court of common pleas — $275—-and certainly that value must be taken,since it was the value of the lot at the time the sidewalk was built. One-fourth of that would be $68.75, and that amount can only be levied under the limitation of sec. 2271, It is said by counsel that we should not hold this because it has been determined by this court, in a case of the same title, in an opinion rendered by Judge Scribner, in a different way. Upon careful reading, however, of that case,it will be found that this question was not decided. It was not necessary to' be decided in that case. There are some remarks in that opinion which would seem to imply that the court was proceeding upon the line that this twenty-five per cent. did not apply to side-walk assessments. The court held that,under the facts before it at that time,it might fairly be treated as a separate improvement made at another time than that of the street paving and could not be added to the street paving to ascertain whether it exceeded the twenty-five per cent., but the side-walk tax alone, did not exceed twenty-five per cent, of the value of the lot in that particular property, so that it was held to be legal upon that property. That being the only question decided there, we are not at all embarrassed by that decision. That was not a corner lot case, Under sec. 2327, it is provided that all of these sections in this chapter relating to assessments, shall be strictly construed in favor of the owner of the property to be affected by the assessment, and a careful reading of all the sections in this chapter, will show that there is a connection between all of them. The subject of side-walks is mentioned in a section of the statutes much earlier than the sub-division which treats of sidewalks. The subject is treated in this same chapter, commencing with sec. 2328 and following, but at the same time side-walks are mentioned in earlier sections, and it is clear that the limitations in sec’s. 2271 and 2283, are intended to apply to all of these assessments, If there be two improvements upon the same street which are clearly separable, then the limitation contained in sec. 2283 does not apply. But the question only is left, whether either of these assessments, alone, exceeded twenty-five per centum? But the lot is a corner lot, and the intersecting street has been improved, so that there are two great street improvements,[which (not as in the Cole case, but think in one of the others,) preceded in order of time the building of the sidewalk, and then the street assessment and the side-walk assessment may be added together to determine whether the whole exceeds twenty-five per cent., and in that case— under sec. 2283 — if the side-walk assessment together with the assessment upon the intersecting street exceeds twenty-five per cent., it would be illegal, but not so when the side-walk and the street assessments are upon the same street. In the Oole case, they were upon the same street, except that] after^the side-walk] was improved, then the improvement was made upon Wisconsin street. But the side-walk assessment, at the time it-was made, was legal, to the extent of twenty-five per cent, of the reduction, and it was not renderedfillegal by the making of the other assessment.

G. F. Watts and William A. Mills,iox Plaintiffs.

P. A.MacGahan and T. J. McDonnell,iox Defendants.

I think from these remarks counsel can prepare the entries in these cases. In the Cole case, I have indicated exactly what the entry should be; in . the others I have not, because I have not had time to go over the papers.and ascertain the order in which these assessments were made and whether in every case they were intersecting street improvements. We hold that,standing alone, the side-walk assessments must be limited to twenty-five per cent., and we are clearly satisfied that that is correct,


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    IN RE SARAH E. GUNNING.

      Admission to Longview Asylum — Trial of question of sanity— Presence of person required—

    1. Sec. 738 et post, regulating the commitment of persons to the Longview Lunatic Asylum of Hamilton county, contemplate an adversary proceeding, with the right to contest and question of the person’s insanity,and such person should be present and have the rights given by statute.

      Presumption in favor of correctness of proceedings where record is silent—
    2. Where the record fails to show that such person was present or was deprived of her rights, it should be presumed that she was so present and had a fair trial. _

      Inquiry into sanity — Right to habeas corpus—
    3. All persons confined as insane, are entitled to the benefit of the writ of habeas corpus, and the question of his sanity or insanity, can not be heard on the application for the writ, bút the writ must issue and the question heard and determined on the issue made.
   Smith, J.

The plaintiff in error, Sarah E. Gunning, by another person acting in her behalf, filed in the court of common pleas of this county a petition alleging that she was at the time of the filing thereof, and had been from May, 1895, unlawfully restrained of her liberty and imprisoned in Longview Asylum by Dr. Frank Hármon, the superintendent'thereof. ' It asserts,in substance, that in May, 1895, an affidavit was filed in the probate court of this county by her husband alleging that she was insane and a fit subject for the lunatic asylum; that a warrant issued thereon, and that she was arrested by the staff, and by order of such court she was committed to said asylum; that the request and commitment were made by the court without any hearing or opportunity upon her part to be heard by such court, and that she was not permitted to confront the witnesses who testified against her, or to call witnesses in her behalf. A copy of the order and judgment filed with the petition simply states that the cause came on to be heard upon the affidavit' of James Gunning and testimony of witness, and that the court found Mrs. Gunning to be insane, and ordered her to be committed to Longview Asylum.

It does not appear therefrom, or from any thing in the case, that Mrs. Gunning was present at the inquest, nor is there any to show that owing to her condition the court, on a personal visit to her, and an inspection of her, found that it was improper that she should be brought into court, in accordance with the provisions of section 708, Revised Statutes.

It is probable that, this section does not apply to the commitment of insane persons to Longview Asylum, but only to the State Lunatic Asylums, as the mode of proceeding to commit insane persons to Longview is regulated by section 738 and post. But these "latter sections evidently contemplate an adversary proceeding, with the person charged to be insane present at the examination, with the right to contest and question of his or her insanity, and such person should be present and have the rights given by t!he 'statute.

Whether in the absence of anything in the record to show that she was not present, or was deprived of her rights, it ought not to be presumed that she was so present and had a fair trial, and that the court acted rightly, is a question of doubt. We incline to the opinion that it should, and that if the case stood on its ground alone, that the action of the court of common pleas in refusing to issue a writ was ndt erroneous.

But the petition alleges, not only that Mrs. Gunning was 1 insane when the order of commitment was made, but that, when the petition in this case was filed, she was sane, and not insane.

Section 713, Revised Statutes,provides:

“All persons confined as insane shall be entitled to the benefit of the writ of habeas corpus,‘and the question of insanity shall be decided at the hearing; and if the judge decides that the person is insane, such decision is no bar to the issuing of' the writ a second time when it is alleged that such person is restored to reason.’’

We are of the opinion that when this petition averred that this woman was not now insane, it was the duty of the court to allow the writ to issue, and on the issue made by the return of the writ by the person in whose custody she was (if such issue was made), to hear and determine the question of the sanity of the person at the time; and that this question could not properly be heard by the court on the application of the writ, as was done here. For this reason the judgment of the common pleas refusing the writ will be reversed.

John W, Wolfe and Thomas L. Miehie, Attorneys for Petitioner.


author: Haynes, J.

text:
    (Sixth Circuit — Sandusky Co., O., Circuit Court
    May Term, 1897.)
    Before Haynes, King and Parker, JJ.
    N. H. BIRDSEYE, et al., v. THE VILLAGE OF CLYDE, OHIO, et al.

      Assessments — Street improvements under special act— When general statutes do not apply—
    Where street improvements are made under an act of the legislature applying to villages of a certain population, and the act provides in itself for the making of the improvements -> and for the collection of the necessary funds therefor, the provisions of the general statutes regulating the manner in which such improvements are to be made by municipalities and limiting the amount of the assessment that may be levied therefor on the abutting property to 25 per cent, of its value, will not apply.
   Haynes, J.

Petition was filed in the court of common pleas for the purpose of enjoining the collection of certain assessments,in whole or in part, that had been made by the council of the village of Clyde, upon certain property for the purpose of paving a certain street in that village, and also for the purpose of making a sewer in said street.

The particular point of contention made here is that no assessment can be made upon property abutting upon the street, in excess of 25 per cent, of the amount at which the property is entered upon the tax duplicate of Sandusky county. Testimony was offered to the court on other points which the council sought to raise, and the court passed upon these questions. It will not be necessary to allude to those in the present opinion. This work, it is admitted, was performed, this improvement made under an act of the general assembly of the state of Ohio, passed on the 1st day of February, 1893, entitled “An act to authorize the council of any village that had at the last federal census, or that may have at any future census, a population of not less than 2320, nor more than 2350, to issue bonds for the purpose of improving and paving the streets, and constructing sewers, to erect or purchase an electric light plant, and to extend the public waterworks of such village.

No question is made by the counsel as to the constitutionality of this act, and the case has been tried and argued as if the act was a constitutional one, and so long as no question is made by counsel we shall make no question as to the constitutionality of the act, and_will form no opinion as to whether or not it is constitutional.

The legislature of the state of Ohio under various statutes that have passed, especially under what is called the municipal code, has provided very ample means for the improvement of streets under a separate chapter, and devoted a great many sections to the question intending to cover all desired law upon the subject very fully. Under another independent chapter they have also provided methods whereby sewers may be made by municipal corporations.

It seems, however, that the village of Clyde was not satisfied to proceed under the statutes of the state of Ohio as they existed, and that the legislature was called upon, or did pass the act in question, and whether called upon, or by its own legislative motion, the fact is that the city council accepted the provisions of this section, and acting under it, proceeded to perform the work, and so far as we know, without objections upon the part of the citizens of the village.

The first and main question that presents itself to us, and which we think must measure and decide the case is, as to whether, the work having been performed under this act, the act itself does not provide for the means of doing the work, raising money,making assessments and collecting the funds necessary to pay for the improvement; in other words, whether this act shall not govern entirely in regard to the making of collections and assessments.

It will be necessary to look at this statute a little to see what has been done by the legislature in that act; I might say, the act has also a clause in regard to furnishing electric lights, and also for extending the system of the waterworks. This section does not enter into the consideration of this question, at all, here, and will simply be passed by.

Section 1 provides: “That the council of any village which had according to the federal census of 1890, or which at any subsequent census may have a population of-not less than 2320, nor more than 2350, is hereby authorized to improve and pave the streets of such village and to construct sewers, and to erect or purchase an electric light plant, and to extend the public waterworks of such village. ”

Section 2 provides: “That the council of such village is hereby authorized and empowered to borrow the sum of 115,000 for the purpose of improving and paving the streets of such village therefor; provided, however, that two-thirds of the cost for improving and paving any street, and of constructing a sewer under such paved part for which said street improvement fund shall be used, shall be assessed on the real estate abounding and abutting as provided by the laws of the state of Ohio: and one-third of the cost of improving, paving and sewering such paved part shall be paid out of the fund provided for in this act; and such council may also provide for the construction and payment by general taxation of the balance of such sewer in such manner as may seem to it best. After such improving and paving of any such street shall have been completed, the clerk of such village shall cer-tify said assessment to the auditor of the county in which said village is located, who shall enter the same upon the tax duplicate of said county, and said assessment shall be collected as other taxes; when said taxes are collected, the same shall be placed to the credit of the sinking fund in such village, and be a part thereof.

“Such assessment shall be collected in twenty (20) semiannual installments, from and after the assessment thereof, but the owner of any such assessed property may; within ninety days after such assessments shall have been made, pay to the treasurer of such village the entire amount of bis or her assessment, together with the interest at six per cent, on said assessment to the date when the first semiannual installment is due, and such treasurer shall give a receipt in full for such assessment, and certify the same to the county auditor of said county, who shall place the same on the tax duplicate opposite such assessed property, ‘assessment paid to village treasurer,

Then it provides:

“Provided, however, that no such assessment shall be made and collected unless a majority of those owning, real estate bounding and abutting on any street thus improved shall have first signed a petition to said council praying for the Improvement of such street; and provided further, that said council shall have first found that a majority of such property owners shall have signed said petition, and a petition .signed either prior or subsequent to the passage of this act shall be sufficient.”

Section 5.

“For the purpose mentioned in the preceding section of this act, the council of any such village is hereby authorized to issue its bonds for all or any of the purposes named in said section, but in no case exceeding in amount the sum named in said section for each particular purpose named therein; all bonds issued under any section of this act shall bear a rate of interest not exceeding six per cent per annum, from date of issue; the principal of all such bonds and the interest thereon shall be payable at such times and places as the council of such village may by ordinance determine, not exceeding thirty years from the date of such bond, and said bonds shall be of such denominations not less than $100, each, as the council of such village may by ordinance determine; the interest thereon shall be -payable semiannually, and all bonds so issued as provided under any section of this act shall be signed by the mayor of such village, and attested by the clerk,and no bonds shall be sold for less than their'par value in cash. All bonds issued under section 2 of this act shall be styled ‘street improvement bonds’; all bonds issued under section 8 of this act shall be styled ‘electric light plant bonds’, and all bonds issued under section 4 of this act shall be styled ‘water works extension bonds’, All such bonds shall be attested by the seal of the village, and when sold, the proceeds shall be paid to the treasurer of such village, who shall hold and disburse the same as other village funds are by him held and disbursed. No bonds issued under any section of this act, nor the proceeds arising therefrom, shall be used for any other purpose than that named for which any such bonds are issued. In addition to other taxes, the council of such village is hereby authorized and required to levy a sufficient tax upon all the taxable property in said village to meet and pay said bonds, and interest thereon, as the same shall become due and payable. ”

We have listened to the argument of counsel in the case and have endeavored to give the matter very careful attention, and we are compelled to come to the conclusion that this act provided in itself for the making of improvements and for the collection of the necessary funds; provides for the issuing of bonds for the various improvements, for the collection of taxes, in pursuance of and for the amount stated in this act, and that when a majority of those owning real estate bounding and abutting on the street to be improved shall sign a petition to the council, praying for the improvement of such street, and when the council has jurisdiction in the matter, they then have the right to proceed and make these improvements, and make them in the manner that is pointed out in the statutes, It will be seen that provision is made for borrowing money. It makes provision for uniting the two works, paving the streets and making sewers underneath, all in one contract, in one act, or, as perhaps it might be better to say, one improvement, and’to make one assessment for that, and we think the counsel very forcefully argued that the intention of the legislature was that in making this it should be treated as a whole. It seems the intention is to'do this work as a unit, and with the object and purpose of having this statute passed, by which they may do this work, it is partially provided for by two separate chapters of the municipal code, and by each separate chapter a different method of procedure is provided, one for making the pavement, and one for sewers, and the manner of assessment for each. Thé village accepted this act, in order to perform this work under the one statute as one improvement, and to be paid as for one improvement.

Provisions are made for making assessments. The act provides that assessments are to be made as provided by the laws of the state of Ohio, provides that the assessment shall be certified to the auditor of the county to be entered upon the tax duplicate,and to be collected as other taxes.

The logical conclusion fiom that holding is that the section which provides for limiting the assessment to 25 per cent is inapplicable to this statute, and is to have no effect; in other words, the statute provides for collecting the whole assessment, and that the property is liable for the whole assessment.

That brings us to the general question as to how assessment shall be made, and the amount-in which they shall be made. As I have already stated, the counsel has sought to raise many questions upon the manner in which the work is done, and as to the correctness of the assessment that was made in that the council had accepted the work done, which it is claimed should not be included under the contract for the performance of the work, or should not be included in the assessment as part of the work performed under the proceedings by the city council.

In regard to the question that has been made, as to the assessment for lake sand, I think we have already stated, perhaps as much as has been necessary in that regard, but I will repeat, that in the judgment of this court — and the rule is one that has been followed, so far as I know, for thirty years by this court — that all questions of that kind are included by the action of the common council unless it can be shown that the common council has been guilty of fraud; that is to say, in the distribution of the powers of government, duties and powers are assigned to different bodies, among others the improvement of the streets to the common council; they make the contract, they accept the work, find the amount of work that has been doné, whether it has been performed according to contract, etc. A great many arguments have been made by the learned and able counsel, but I have never yet seen the rule shaken in any case in which I have been engaged.

In regard to the sand used, I suppose it may be the fact that certain sand has gone in the improvement that was not lake sand, but both kinds of sand have to be used, and if you look at the evidence there is no evidence to show the amount of lake sand or other sand, and from the evidence as to the amount of each used no definite statement can be made. The matter was brought before the council who acted upon it. It approved the estimate, it approved the amount, and made the assessment. I know of no authority that is given to this court to change that assessment except it shall be found the proceedings were wrong, and the court will then proceed to make the assessment as pointed out in the statutes.

In regard to the drive-ways, we find the facts, as far as we have been able to ascertain by examination,to be that no provision was made in the original plans and specifications for these drive-ways. The work was to be done under the inspection and direction of a certain committee, a body of engineers, and the work has been done under the direction of the same body. It has come before the council, and council has approved it, and we think that when they have done so, that the cost of the work should be assessed the same as the other pavings. It seems to us it was proper and legitimate for the council to order the class of work to be done as part of the improvement of the street, but we think the assessment should be made the same as the assessment for the rest of the pavement; that is to say,the two-thirds of it shall be assessed upon the property abutting upon the street,and the one-third is to be paid out of the general fund. I believe that covers all the points we wish to speak upon. We will make the order that the village pay one-fourth the costs, and plaintiff three-fourths.

Richards & Heffner and M. W. Hunt, for Plaintiff,

Finch, Dewey & Metzgar and J. C. Craig, for Defendant.