text:
    CONSENTS OF ABUTTING OWNERS TO CONSTRUCTION OF STREET RAILWAY.
    [Circuit Court of Cuyahoga County.]
    A. J. Day v. The Forest City Railway Company et al.
    Decided, November 28, 1904.

      Street Railways — Consents of Abutting Owners to Construction of— Consent for New Road — Distinguished from, Consent for Extension of Old Road — To Whom Consent Inures — Consents do not Became Functus Officii by Lapse of Time, When — Right to Consent in Vendee, When — Consent Unrevoked by New Owner — Consent by Guardian — Consent by Agent — Presumption of Agency in Determining Jurisdiction of Council — Jurisdiction Given to Council, Row — Municipal Corporations.

      1. The statutes seem to make a marked distinction between original grants for the construction of new street railways and grants for the extension of the tracks of old street railways; hence it follows that the abutter has the right to consent, or withhold his consent, either to the eonsruction of a new railway or to the extension of the tracks of an old railway. If the abutter consent to the construction of a railway, either generally, or specifying some particular individual or corporation who may have his consent to construct, his consent inures to the benefit of the individual or corporation offering to carry passengers at the lowest rate of fare; if he consent to the extension of the tracks of an existing street railway, such consent inures only to the benefit of the railway specified in his consent. This conclusion is based not only upon said distinction in the statutes, but upon principle.
    2. Where consents to the construction of a street railway are given while application for a grant is pending, and? the municipal authorities are enjoined from making such grant, and thereafter, and within a year, a new application is made for the right to construct a street railway on the same street, which application is granted and an ordinance therefor passed, such original consents are not functus officii, but may be considered by council as consents to the latter grant, if presented to council as such, it appearing that said abutters had knowledge of the new application and never withdrew their consents.

      5. Where the vendee of land under a contract to convey it is not in default under his contract and is in possession of the land, which abuts upon a street upon which it is proposed to construct a street railway, the right to consent to the construction of such railway is in said vendee.
    4. Where the owner of land abutting upon a street has consented to ■the construction of a street railway upon said street, and the title to the land subsequently devolves upon another who has knowledge of such consent, but never revokes it, the latter is bound by ¡the consent.
    E. The mere knowledge of a guardian that the person from whom his ward derives title has so consented, and neglect of the guardian to revoke it, does not bind the ward.
    6. A consent signed for the owner by another, whether the name signed be that of the owner or such other, is the consent of the owner, if intended by the owner as such. Such intention may be gathered from authorization previously given by the owner or ratification or adoption after signing.
    7. Where a person signs a consent as agent for another, no presumption in favor of the agency arises from the rule that council is presumed to have acted with sufficient consents before it; and, in an action in which the jurisdiction of council to grant a street railway franchise is attacked on the ground that it did not have sufficient valid consents before it, such agency must be proved as in other cases.
    8. The council of a municipal corporation has no jurisdiction to pass an ordinance granting a franchise to construct a street railway in a street of such corporation unless, before the passage of such ordinance, there are produced to council the written consents of the owners of more than one-half of the feet front of the lots and lands abutting upon said street.
    Winch, J.; Hale, J., concurs; Marvin, J., dissents as to rulin No. 8 below only, and therefore dissents as to the judgment.
    This case was heard on appeal. We are asked to enjoin the defendants from constructing and operating a street railway on Denison avenue, between Pearl street and the westerly limits of the city of Cleveland, under an ordinance granting such franchise to them as an original grant, passed by the council of said city, September 9, 1903. It is said that said council was without jurisdiction to pass said ordinance, and that the same is null and void, because, before its passage, there were not produced to the council the written consents of the owners of more than one-half of the feet front of the lots and lands abutting lipón said Denison avenue between the limits stated.
   This is the sole question presented to us for determination in this case.

An agreed statement of facts has been submitted, which shows that there is private frontage on that portion of Denison avenue in controversy amounting to 28,638.66 feet. The plaintiff claims that to this frontage should be added certain property owned by the Big Four Railway Company, amounting to 154.65 feet. The evidence shows that said railway company owns said land in fee, though a small part of it is covered by its tracks. We see no reason why this railway company property should not be counted in making up the total of the frontage on the street, .and therefore find that, including said property, the private frontage on the street is 28,793.31, and that the validity of the •ordinance - depends upon whether the written consents of the ■owners of a majority of said frontage, to-wit, 14,397 feet, were produced to the council as aforesaid.

The agreed statement of facts contains a list of owners and their frontages, who did not give their consent. This amounts to 10,837,938 feet, and starting with these figures we have examined the contested frontages, and in this opinion will state •as concisely as possible our findings of facts and conclusions of law upon each one of them, in the order that they are set forth in defendants’ memoranda of disputed frontages.

Mary C. Lemmerman, 54.6 feet. Consent was signed by her husband for her, and we find that he was authorized so to do, and that the consent should be counted for defendants.

William R. Long, 277.19 feet. Consent signed August '22, 1903, contained the following provision: £ £ This consent holds good only if franchise is passed on Monday, August 24, 1903.” It appears that the ordinance was not passed on that date, and we hold that it was of no validity thereafter, and this frontage is counted as not consenting.

Regina Hafele, 110 feet. The evidence shows that this property was formerly owned by one Elizabeth Pletcher. She signed a consent, while owner. July .3, 1903, she sold and conveyed the property to Regina Hafele. It does not appear that the latter knew of this outstanding consent until after the ordinance was passed. This frontage is counted as not consenting.

Jennie Cleveland, 49.68 feet. Lucius W. Baker, formerly owned this property and signed a consent. June 27, 1903, he conveyed it to Jennie Cleveland. She did not know of the outstanding consent until November 16, 1903. This frontage is counted as not consenting.

Flora L. Mclntire, 59.36 feet. Consent signed “Flora Mclntire, by D. C. Mclntire, ’ ’ her husband. He had no authority to sign for her, and she knew nothing of his signing her name until long after the ordinance was passed. Counted as not consenting.

Lucy B. Winslow and Annie L. Chadwick, 575.34 feet. The owners had been in Europe for some time. Their interests here were looked after by N. M. Platt. He had no power of attorney from them and never consulted them about their wishes in the premises, but signed a consent for them. Of this they had no knowledge until December, 1903, when they promptly disaffirmed his act. Counted as not consenting.

Barbara Canda, 108.06 feet. Consent signed August 24, 1903, “Barbara Canda, by John Canda, Agent.” John was Barbara’s son, and from the evidence we find that he was authorized to sign for her and count this frontage in favor of the ordinance.

George Fleisher, 209.59 feet. From the evidence it appears that on August 19, 1903, George Fleisher signed a consent reading as follows:

“The undersigned property owner hereby consents to the construction of a double track street railroad on Denison avenue for all the property standing in my name. ’ ’

August 24, 1903, he signed a writing as follows:

“I, the undersigned, being the owner of property to the extent of 210.59 feet upon Denison avenue in the city of Cleveland, hereby withdraw and cancel any and all consents which I have heretofore given for the construction of any other street railroad except the Cleveland • Electric Railway Company upon said street.”

These two documents were in the hands of Peter Witt, clerk of the city of Cleveland, and he had them with him in the council chamber when he presented to the council a written communication as follows:

“September 9, 1903.
“To the City Council.
‘ ‘ Gentlemen : I have examined the consents for the construction of the double track street railway on Denison avenue, presented by Albert E. Green, and find that the same represents a majority of the feet fronting on Denison avenue.
“Respectfully yours,
“Peter Witt, City Clerk.”

The council acted upon this, communication and did not itself, or by committee, examine the consents. Mr. Witt testifies that he did not count the Fleisher frontage in favor of the ordinance. The question presented is whether the council should have counted said frontage as consenting.

Testimony was admitted, over the objection of defendants, showing that the Cleveland Electric Railway Company was, prior to the passage of the ordinance in question, operating a street railway in the city of Cleveland, under a franchise granted by the council of said city. That on July 27, 1903, it filed with the city council an application for leave to extend its tracks on Denison avenue, the street here in question. This ordinance went to its second reading on August 17, 1903, and was then, and for some time after, pending before the council.

August 3, 1903, George Fleisher signed and delivered to an agent of said company the following writing:

“I, the undersigned, being the owner of property on Denison avenue in the city of Cleveland, to the extent of 210.59 feet front, hereby request the Cleveland Electric Railway Company to construct an extension of its existing street railway lines upon and along said street in front of my premises, and to maintain and operate the same as a part of its system of street railway now in operation in the city of Cleveland.
“This request is made as a personal request, and to the said. Cleveland Electric Railway Company only, and I consent to-the construction and operation of such an extension of said company's lines upon and along said street; but this consent shall not be assignable, and is not intended as authority for any other street railroad to be constructed and operated upon said street. ’ ’

For a satisfactory determination of the question here involved, it is necessary to consider the statutes regulating the granting of street railway franchises.

Section 3437, Revised Statutes, provides that street railways, “may be constructed or extended.”

Section 1536-183 provides that:

“The right so to construct or extend such railway as is provided for in Section 3437, Revised Statutes of Ohio, within or beyond the limits of a municipal corporation, can be granted only by the council thereof, by ordinance * * * ; and that no extension of any street railroad located wholly without any such city, or of any street railroad wherever located, which has been built or shall be built in performance of a right obtained from any source or authority other than a municipal corporation, shall be made within the limits of such city, except as a new route, and subject to the provisions of Section 2501 of the Revised Statutes of Ohio, and Section 30 (Section 1536-185) of this act.”

The foregoing provisions seem to make a distinction between the “construction” and “extension” of street railroads, and following up the provisions on the subject, we further find it provided for the construction of new railroads as follows:

Section 2501. No corporation, individual «r individuals, shall perform any work in the construction of a street railroad until application for leave is made to the council in writing, and the council by ordinance shall have granted permission,” etc.
“Section 30 (Section 1536-185). Nothing mentioned in Section 2501 of the Revised Statutes of Ohio shall be done; no ordinance or resolution to establish or define a street railroad route shall be passed, and no action inviting proposals to construct and operate such railroad .shall be taken by the council; and no ordinance for the purpose specified in Section 2501 of the Revised Statutes of Ohio shall be passed until public notice of the application therefor has been given by the clerk of the corporation * * * for the period of at least three consecutive weeks in one or more of the daily papers, * * * and no such grant as mentioned in Section 2501 of the Revised Statutes of Ohio shall be made, except to the corporation, individual or individuals, that will agree to carry passengers upon such proposed railroad at the lowest rate of fare, and shall have previously obtained the written consent of a majority of the property holders upon each street or part thereof, on the line of the proposed street railroad, .represented by the feet front of the property abutting on the several streets, along which such road is' proposed to be constructed. ’ ’

With regard to the extension of tracks by existing street railroads, it is provided:

“Section 2505. The council of any city or village may grant permission, by ordinance, to any corporation, indvidual or company owning, or having the right to construct, any such railroad, to extend their track, subject to the provisions of Sections 3437, 3438, 3439, 3440, 3441, 3442 and 3443, on any street or streets where council may deem such extensions beneficial to the public; and when any such extension is made, the charge for carrying passengers on any street railroad so extended, and its connections made with any other road or roads, by consolidation under existing laws, shall not be increased by reason of such extension or consolidation.”

A provision common to both construction and extension is the following:

“Section 3439. No such grant (for the construction or extension of a street railroad) shall be made until there is produced to council * # * the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way, along which it is proposed to construct such railway or extension-thereof; and the provisions of Sections 2501 and 2503 to 2505 inclusive, so far as they are applicable, shall be observed in all respects, whether the railway proposed is an extension of an old or the granting of a new route, ’ ’ etc.

A marked distinction is thus drawn between an original grant for construction and a grant for an extension of a street railroad. In the former ease a grant can be made only upon publication of notice of the pendency of an application, and then to the compahy'offering to carry passengers at the lowest rate of fare; the grant of a right to extend tracks can only be .granted to a company owning or having the right to construct a railroad, and there can be no bidding for the grant — the only provision for fare being that it shall not be increased by reason of such extension.

From this we conclude that the abutter has a right to consent or withhold his consent, either "to the construction of a new road or to the extension of an old road. While it has been held with regard to a new road that a general consent, or even one specifying some company or individual, will inure to the benefit of the company or individual offering to carry passengers at the lowest rate of fare, we think it equally clear that a consent to the extension of an old road will inure only to the benefit of such old road.

This personal right of the property owner to designate whether his consent .shall inure to the benefit of the lowest bidder for a new road or for the benefit of an old company seeking a right to extend its tracks, is not founded alone upon the distinctions shown to exist in the statutes, between new construction and extension — it has natural justice back of it. If the right to consent or withhold consent is a personal right, the property owner should be allowed to exercise it as he sees fit and as he deems to his best advantage. It may be considered by him a more desirable thing to have a street railroad in front of his property which will take him for five cents all over the city, than to have one with a three-cent fare which only runs up and down the street for two or three miles and neither goes near his own place of business or that of others with whom he trades or desires to meet. On the other hand, if he prefers the new railroad because of its lower fare, he .•should have a right to express his preference.

With these views of the law of the ease we hav6 admitted testimony as to the situation of the parties in order that we might determine the intention of George Fleisher as expressed in his so-called withdrawal of consent dated August 24, 1903, and we hold that said instrument was a revocation of the general consent given theretofore and the exception therein contained referring to the Cleveland Electric Railway Company inures only to the benefit of the latter company in a proposed extension of its tracks along Denison avenue.

This frontage is counted as not consenting.

Carrie E. Rundell, 46 feet. Counted against the ordinance for reasons stated in No. 8.

Joseph H. Storer, 524.31 feet. Counted against the ordinance for reasons stated in No. 8.

Prank S. Pelton, 120.86 feet. Pelton filed a consent, but revoked it August 17, 1903. On September 9, 1903, he signed another .consent, but the evidence shows that the last consent was not. produced to council. Counted against the ordinance.

Horatio B. Carpenter, 100 feet. Counted against the ordinance for reasons stated in No. 8.

The Union Savings & Loan Company, 93.33 feet. Consent was signed “Union Savings & Loan Company, A. G. Hutchinson, Secretary.” Revocation was signed “Union Savings & Loan Company, by H. . Q. Sargent, President. ’ ’ Neither consent or revocation was authorized by the board of directors at a meeting regularly held, but we are satisfied that the several members of the board were consulted in each instance and that the revocation is as valid as the consent. Counted against the ordinance.

C. F. Brandt ........................ 90.78 feet

Maria Peters ........................... 155.00 feet

Michael J. Maher ..................... 105.27 feet

Henry Maulberger (% of 35) ........... 17.50 feet

John A. Dennerle .................... 138.18 feet

Nellie M. Noderer .................... 69.12 feet

Michael Froelich (% of 105) ........... 52.50 feet

Ellen I. Sears........................ 414.75 feet

P. J. and Nettie Reilley (% of 50.2).... 25.10 feet

The only objection made to the above consents is that they were signed in 1902, about a year before the passage of this ordinance. At that time a similar ordinance was pending, but the Supreme Court enjoined the council of the city of Cleveland from granting any street railway franchises until after its reorganization under the new municipal code. Further proceedings with regard to the old ordinance were thus stayed and the application for the present franchise was. made after the reorganization of the city government.

We do not think these old consents were functus officii, as claimed by plaintiff. They were outstanding with full knowledge of the consenters and unrevoked. This conclusion is sustained by the Sanflect case, 10 C. C., 460, affirmed by the Supreme Court without report. See also 66 N. J. Law, 617, and Nellis on Street Surface Railways, 81.

These frontages are counted as consenting.

The Frisbie Company and William and Minnie Stroh, land contractees, 41.96 feet. Title in the Frisbie Company, but William and Minnie Stroh in possession of the -property under a land contract. Consent signed by the Frisbie Company and Mrs. Minnie Stroh, one of the contractees.

We hold that where the vendee of land under a contract to convey it is not in default under his contract and is in possession of the land which abuts upon a street upon which it is proposed to construct a street railway, the right to consent to the construction of such railway is in said vendee.

Applying this rule to the frontage, one of the vendees having consented and the other having failed to give consent, only half of the frontage can be counted in favor of the ordinance, and we therefore count one-half of 41.96 feet, or 25.98 feet against the ordinance.

The Frisbie Company and J. C. Buchler, land contractee, 42.06 feet. Both vendor and vendee signed consent. We see no reason why it should not be counted in favor of the ordinance.

Estate of Mrs. F. W. Pelton, 1,765.70 feet. Susan A. Pelton was at one time the owner of this land, signed a consent and then died. The property descended to her two daughters, Lucy A. Wenham and Elizabeth Pelton. Elizabeth Pelton was an imbecile and after tbe mother’s death, Lncy A. Wenham was appointed her guardian. Mrs. Wenham knew that her mother had signed a consent and approved of it. Having such knowledge she never revoked the consent.

We hold that where an owner of land has consented to the construction of a street railway and the title to said land subsequently devolves upon another who, has knowledge of said consent, but never revokes it, the latter is bound by the consent. Under such holding it follows that the one-half of this property which Lucy A. Wenham inherited must be counted as assenting.

As to the one-half inherited by the imbecile daughter, it is conceded that had there been no outstanding consent, the guardian could not have consented for her ward without an order of the probate court authorizing such consent. The written consent, therefore, of the guardian, would have been of no avail, without an order from the probate court, and we are unable to see how the mere knowledge of the .guardian of the former consent and the guardian’s neglect to apply to the probate court for instructions regarding it, can alter the case. The one-half of this frontage, 882.85 feet, owned by Elizabeth Peltcn, imbecile, is counted against the ordinance.

Estate of Frederick W. Pelton, one-third of 858.50 equal to 286.167 feet.

Frederick W. Pelton, husband of Susan A. Pelton, mentioned above, owned 858.50 feet, and by his will left one-third to his widow, Susan A. Pelton, and after his death she signed a consent. No consent was ever given for the two-thirds devised by Frederick W. to his daughters, Lucy Wenham and Elizabeth Pelton. The contention is with regard to the one-third devised to. the widow, which, by inheritance, upon her death passed the same as in No. 17, and the facts being the same in both cases, we count the one-half of this one-third, or 143.083 feet, inherited by the imbecile daughter, against the ordinance.

Marie Reppenhagen, 98.75 feet. This consent was withdrawn in the same manner as the Fleisher consent was withdrawn, and for the reasons stated in that case, this frontage is counted against the ordinance.

James Sears’ estate, 1,086.502 feet. Counted against the ordinance for reasons stated in No. 8.

Congregational City Missionary Society, 77.14 feet. Consent signed “Congregational Church, by the authority of trustees, John G. Simon.” The society first mentioned, an incorporated body, owned the property. The “Congregational Church” whose signature purports to be affixed by Simon, occupied the church under some arrangement with the incorporated society, but had no title to the property. Simon was not an officer of the incorporated society and had from it no authority to sign the consent. Counted against the ordinance.

Frieda Schwartz Schweiger, 51.025 feet. Consent signed “A. Schweiger,” by her husband, Adolph Schwieger. The proof shows that the owner authorized her husband to sign for her, and we hold the consent should be counted in favor of the ordinance.

Big Four Railway, 154.65 feet. No consent was filed, and this frontage is counted against the ordinance.

James Evans, 184.64 feet. Title to this property wa3 originally in Mary A. S. Evans, wife of James Evans. She had conveyed the property to her husband, but his deed was not of record. The wife, with knowledge and consent of her husband, signed her own name to a consent. We count it in favor of the ordinance.

Orrin Wallace, one-fourth of 174.23 equal to 43.56 feet. Property owned in common by three brothers and a sister. Consent signed “By authority, H. B. Wallace.” Evidence shows H. B. Wallace was so authorized by one brother and the sister. He himself testifies that he also had such authority from his brother Orrin. This Orrin denies. We do not think an agency is proved by the declaration of the agent, when the principal denies the agency. The rule that the presumption is that the council acted with sufficient consents, before it, does not extend to the validity of any single consent when the validity of such consent is directly attacked. In the latter ease the validity of the consent is to be determined as a fact, under the ordinary rules of evidence and applying them to this frontage we find that Orrin Wallace never consented, and this frontage is counted against the ordinance.

Ernst Sehueneman, one-half of 45 equal to 22.5 feet, Ernst and Wilhelmina Sehueneman owned the property, and the consent was signed “Mr. Ernst Wilhelmina Sehueneman,” by their daughter. It appears that she signed by direction of her mother; that her father was promptly informed of what she had done and never made any objection. Counted for the ordinance.

Katharine Ehrbar, 146.66 feet. Consent signed “Katharine Ehrbar, by F. C. Ehrbar.” The latter was her husband. There is some doubt whether the signature was written by the husband or by a daughter, but there is no doubt that Katharine adopted the signature and consented.

George P. Geib, 410.16 feet. Two consents, one signed June 6, 1902, by Gieb, and one signed August 5, 1903, by his son. No revocations. Following our holding as to No. 14, this frontage is counted as consenting.

Herman Stuhr, one-third of 129.44 equal to 43.18 feet. Annie L. Weitz owned the property, consented and died. The property descended to three heirs. Two of them signed consents. There is no evidence that the third heir, Herman Stuhr, had any knowledge that Mrs. Weitz had signed a consent and we therefore count this property against the ordinance.

Éstate of Samuel and Susan B. Storer, four-fifths of 292.68 equal to 234.13 feet. There are five consents and withdrawals in this case. It is necessary to consider but three of them. Consent dated August 11, 1903, signed “S. Storer’s heirs, Mrs. Mabel Templin, Executrix.” We think the proof shows that all the heirs at this time consented and authorized Mrs. Templin to sign for them. On August 14, 1903, a revocation was signed “Mrs. Mabel Templin, Mrs. Julia Storer,” with the exception as to the Cleveland Electric Railway Company. Under our previous ruling we hold this to be a revocation as to the two owners who signed it. Mrs. Templin subsequently signed another consent. Mrs. Julia Storer did not, and we count her share, or 58.536 feet against the ordinance.

Wilcox, Gollister, Hadden <$s Parks, for plaintiff.

Blandin, Bice & Ginn, for defendants.

Marcus Dennerle; Marcus and Teresa Rohrbach, 'land contractees, 54.06 feet. Marcus Rohrbach signed a consent which was before the council, and under our ruling in No. 15 we count his half of this frontage -in favor of the ordinance, but the one-half, 27.03 feet, belonging to his wife, who did not sign, we count against it.

Joseph and) Margaretha Oeschger; Charles Burlinghausen, land contraetee, 182.89 feet. Charles Burlinghausen having signed a consent, under the ruling in No. 15 we count this frontage for the ordinance.

P. J. and Nettie Reilley, 25.1 feet. Both owners signed a consent June 9, 1902, and for reasons before stated we count this for the ordinance.

Bertha Maulberger, one-half of 35 equal to 17.5 feet. Henry Maulberger and Bertha, his wife, owned the property in common. Henry signed his own name to a consent. There is no evidence that his wife authorized him to sign for her, and we count her half against the ordinance.

Summing up, we find that the frontage conceded as not consenting is 10,820.436 feet; and the total of disputed frontages which we have concluded should be counted as not consenting, is 4,820.461 feet. The two added together make 15,640.899 feet; a majority of the frontage on the street is 14,397 feet. It appears that owners of more than half of the street frontage did not consent. In other words, the written consents of the owners of more than one-half of the feet front of the lots and lands abutting on the street were not produced to council. It was, therefore, without jurisdiction to pass the ordinance, and the same being of no validity, defendants have no rights mider it and the prayer of the petition is granted.


source: Caselaw Access Project

license: Public Domain

text:
    UNCERTAINTY AS TO NEGLIGENCE CAUSING INJURY TO EMPLOYE.
    [Circuit Court of Lucas County.]
    Leroy Welever v. William S. Williams et al.
    Decided, October 20, 1904.

      Negligence — Master and Servant — Injury to Employe — Where the Procuring Cause is Uncertain — Instructed Verdict — Error.
    Where the testimony fails to establish that the lifting of a piece of timber, either by or without the direction of the foreman, was the cause of another piece of timber rolling down .and upon the defendant, to his injury, it is not error to direct a verdict for the defendant.
    Haynes, J.; Parker, J., and Hull, J., concur.
    Heard on error.
   In this case, a petition'in error is filed for the purpose of reversing the action of the court of common pleas, the plaintiff in error being plaintiff below and the defendants in error being defendants below. The plaintiff, ■ claiming to be an employe of Williams & Company, was employed to be about the work 'that they were carrying forward, of making “cribs” or perhaps laying timbers, in connection with the work of the terminal road, cribs being made in the construction of a bridge across the river. The firm, named Williams Brothers, and George H. Morse and John F. Mayer had the job and were carrying on the work. The crib was composed of timbers, and it was to be joined together, and in doing so they used timber of different lengths, the crib being sixty feet long by twenty feet wide or perhaps wider, and they used timbers varying in length from twenty . feet and in size about twelve or thirteen inches square, so théy would lie close together. They brought these timbers to the banks of the river upon a scow, and upon that they had a hoisting machine, and they piled these up on the banks. They had at the bank of the place where these timbers were piled some skids to take timber from the bank down to the river, on an incline, and there the skids rested upon a platform that was being used for the building of the crib. In order to retain this crib in its place and to prevent it sliding about, it became necessary to nail certain cleats on the platform; and then the plaintiff was ordered by the foreman to assist in nailing the cleats; and while he was doing that work, a piece of timber from the pile on the bank, or perhaps resting in part on the skids, came rolling down and -struck him, threw him into the river, and injured him. He brought the action against the firm; and in his amended petition, the gist of the action was set up in his cause of action as follows:

“A number of large timbers had been piled near the upper end -of said skids or ways, and while plaintiff was in the act of spiking said cleats on the ways, as ordered by his foreman, other workmen were ordered by defendants to move and handle timbers near plaintiff in such wise that one of them rolled down over and across the ways where plaintiff was at work, so striking plaintiff as to knock and throw him into the river, and causing plaintiff great and permanent injuries as hereinafter set forth. ’ ’

The parties proceeded to the trial of the case, and testimony was introduced on behalf of plaintiff; and at the conclusion of that testimony, the' attorney for the defendants moved the court to direct a verdict for the defendants, stating in his motion that there was no cause of action stated in the petition; but as against that, the court called his attention to a single paragraph he thought was sufficient; and the matter was disposed of on the other point, to-wit, that there was no evidence to show that there was negligence on the part of the defendants. There had come up in the trial of the ease a question in regard to the admission of evidence, and the plaintiff had taken the testimony of the foreman, who was absent from the state; and he was inquired of in regard to this injury, and he proceeded to state in reply to a series of questions, that the accident occurred in this way: that the logs were brought upon this scaffold, and that Mayer, one of the firm, was superintending the lifting of those logs -or timbers from the scow to the bank and placing them’near the skids, and, as he did so, there were no guy ropes at the side, and as the logs were up in the air, they went swinging around and around and dropped helter and skelter , on the banks or on the skids; and that he called attention to the fact that they were doing it, and that they should not do it; but that Mayer kept on until they got so high, that one of them rolled off and fell down; and that was the cause of the injury. Objection being made, the court ruled out this testimony; and we think he properly ruled it out, because that in itself was not stated as a cause of action, and a different matter was really stated,' and the testimony that had been, offered by the plaintiff up to that time had all been upon a different theory and a different case altogether from that, and in accordance; as we understand it, with the allegations of the petition; and we think the court below was right in his ruling upon that point.

Now, the question comes up whether the court erred in directing a verdict for the defendant. It will be noticed that the statement is, that “a number of large timbers had been piled near the upper end of the skids or ways, and that while plaintiff was in the act of spiking saidi cleats on the ways, as ordered by his foreman, other workmen were ordered by defendants to move and handle timbers near plaintiff in such wise that one of them rolled down, over and across the ways where plaintiff was at work, so striking plaintiff as to knock and throw him into the river.” Now the allegation is that they were ordered by defendants to move and handle timbers near plaintiff in such wise that one of them rolled down, over and across the ways. It was because of that allegation that the court below stated that the petition stated a good cause of action. When we come to have the testimony, it was claimed on behalf of the defendants that there was no testimony to sustain that allegation, and the court below finding such to be the fact, directed a verdict to be found for the defendants.

We have read this testimony over very carefully, and we have read the brief of counsel very carefully and the testimony there set out; and the question arises whether any act that was being done there at that «time by order of the foreman was the cause of this accident. The Supreme Court has well said briefly, that “to establish negligence, there should either be direct proof of the facts constituting such negligence, or proof of facts from which negligence, may be reasonably inferred. There should be no guessing by either the court or the jury” (R. R. Co. v. Marsh, 63 O. S., 236, 5th Syllabus).

Testimony was offered to show that at about the same time that the plaintiff was ordered to nail down those cleats, am order was given by the foreman, that they should give a stick of timber to the foreman; and it is said they proceeded to do that — four or five of them, the evidence seemed to indicate that there were perhaps six of them — -and that they proceeded to some point at, near or on the pile, and with instruments proceeded to take up the log or stick of timber; that at or about the time they commenced to lift the timber, they, heard a cry that Welever was in the river, and that they immediately laid down the timber and then some of them proceeded to go over where he was. There was some testimony tending to show that the foreman was by them at the’ time the timber was taken, and there is other testimony that he simply ordered them to take it. There was some testimony that, as a general rule, the timber that was to be taken was pointed out by the foreman; exactly what it was, at this time, does not appear, but there was testimony tending to show thát he told the men to go up and get the stick — that is, this stick. There was testimony on the part of the plaintiff that, at the time that he went out to nail the cleats, he saw one stick protruding out of the pile, and that he pressed down on it and lifted on it, and that he said to the foreman, “Look out and not let this stick down,” and that the foreman told him to go down and nail his cleats, and that he would take care of the stick.

Now, there was no testimony tending to show where that stick was taken from the pile, how near the pile, how near the front of it, or what part of it. There was no testimony tending to show that the lifting of this particular stick released the stick that fell in any manner, or released any other stick .that released that, or that in any other manner the foreman disturbed this stick that fell or caused it to fall. There is a lack of evidence entirely on that point, arising from the fact that the parties did not notice or did not remember — or, as it has been suggested, did not want to remember — but whatever the cause may be, the fact is that the testimony does not show that the lifting of the stick was the procuring cause of the falling of the piece of timber that rolled down and injured the plaintiff. It is unnecessary to go over the testimony. That is our observation and conclusion, after having read and carefully re-read the testimony, and discussed it; and that leads to the conclusion that from the law and the evidence in the case, that the court below was right in ordering and directing the jury to return a verdict for the defendants; .and the action of the court of common pleas will be affirmed.

0. 8. Bmmback, for plaintiff in error.

Smith & Baker, for defendant in error.


author: Jedke, J.

text:
    TELEPHONE FRANCHISES GRANTED BY THE PROBATE COURT.
    [Circuit Court of Hamilton County.]
    The Queen City Telephone Company v. The City of Cincinnati.

    Decided, January 21, 1905.

      Telephone Companies — Application by, for Franchise — Probate Court can Exercise only Judicial Power — Applied to Orderly and Well Defined Issues — Othenoise its Grant — Is Legislative and Void— Corporation Claiming the Right of Eminent Domain — Must Comply with all the Requirements of the Statutes as to Organization —Overhead Construction — Monopoly — Sections 3454, 3461 and 3471-1.
    1. The right provided by Revised Statutes, 3461, to apply to the probate court for the enforcement of the right conferred by Revised Statutes, 3454, and the proceeding upon such application, has been held to be a judicial function and constitutional (64 O. S., 67).
    2. Whatever power was thus conferred upon the probate court must be judicially exercised.
    3. To call forth such exercise of judicial functions defined issues must be submitted to the court in orderly way to invite determination.
    4. For a probate court to award a franchise and in general and sweeping terms to permit a corporation to occupy the streets of a municipality, no specific questions of difference between such corporation and the municipal council being submitted, for adjudication, is legislation and not the exercise of a judicial function within the construction put upon Revised Statutes, 3461, by the Supreme Court in 64 O. S., 67.
    5. If the combined construction of Revised Statutes, 3454, and Revised Statutes, 3471-1, limits their application to overhead construction and companies now in existence and having and operating a switch-board, or exchange, and thus gives the incumbent company a material advantage and puts special obstacles in the way of new companies, such construction would be contrary to the Constitution as tending to create a monoply.
    6. A corporation seeking to avail itself of powers conferred by the state, as in the nature of eminent domain, must show itself duly organized, and as having fully complied with all the requirements of the statutes before it can exercise such power.
    Swing, J.;
    all concur in holding that the plaintiff: corporation has not been properly organized, and that the decree of the probate court was in excess of the power of that court; Giffen, J., and Jelke, J., differ from Judge Swing as to the construction to be plaee'd on Section 3471-1, Section 1.

       Affirming City of Cincinnati v. Queen City Telephone Co., 2 N. P. —N. S., 349.

   This is an action in this court on error to the judgment of the Court of Common Pleas of Hamilton County, reversing a judgment of the probate court of said county.

The action in the probate court was one brought by the telephone company in which it is alleged it was a corporation—

“Organized and doing business under the laws of the state Ohio, for the purpose of constructing, operating and maintaining lines of telephone and telegraph, with the necessary poles, conduits, wires and appurtenances, in the City of Cincinnati, Hamilton county, state of Ohio, and the defendant is a municipal corporation under the laws of this state, and a city.
“That on or about the 12th day of October, 1903, this plaintiff, The Queen City Telephone Company, made application to the City Council of the City of Cincinnati, under the laws of the state, to prescribe a manner of pse by this company of the streets, alleys and public ways and other public property of the said city, in constructing the plaintiff’s lines of telephones and telegraph, and transmitted at the same time the form of' an ordinance that this company was willing to accept, and bind itself to perform and conform to.
“That immediately, at the meeting of said council on the 12th day of October, 1903, the said application was referred -to the committee on telephones and telegraphs of said city council, who have kept the same under consideration until the 25th day of January, 1904, and during the said interval the said committee had several meetings, and several times considered said application, together with applications of other companies, and has finally reported that there was not room in the streets for the accommodation of the lines asked for and that it was not expedient to make any grant or agreement.
“And the said city council on the 25th day of January, 1904, took up and considered the said report and adopted the same, and has finally rejected the application of this company, and the said City of Cincinnati and this plaintiff have failed to agree on the mode of the use of the streets, alleys, public ways and other public property of the City of Cincinnati in constructing this company’s lines of telephone and telegraph, although this plaintiff has been, and is willing to accept the said permission upon any terms and conditions prescribed by the said city council, that may be proper and lawful for it to prescribe, or to accept and bind itself to any amendment which might be lawful and proper to the proposal presented by this plaintiff, of all of which the said city council had knowledge and notice.
“Wherefore, the plaintiff asks that this court direct in what mode this plaintiff may construct its telephone and telegraph lines, along the streets, alleys, public ways and public property of the said city of Cincinnati, so as not to incommode the public in the use of the same.
“The Queen City Telephone Co.,
“Harry B. Gates, Secretary,
“C. B. Matthews, Attorney.
“(Duly verified).”
To this petition the- City of Cincinnati filed the following motion:
“Now comes the defendant and moves that the petition of the plaintiff be made more definite and certain in the following respects:
“1st. By setting out what streets, public ways and public property plaintiff proposes to occupy with the poles, wires and underground conduits.
“2d. By setting forth the exact location of all proposed poles, wires, conduits and other structures to be placed in' said streets, alleys and public ways in the city.
“3d. By setting forth specifically the character of the poles or wires to be erected and of the conduits and other structures proposed to be put upon, in or under tbe streets and public ways in the City of Cincinnati.
“City op Cincinnati,
“By Chas. J. Hunt, Solicitor.”
"Which motion the court overruled.
Afterwards the said city filed its answer, alleging:
“Now comes the City of Cincinnati, and by way of answer-to the petition, admits that plaintiff submitted to the Council of the City of Cincinnati the ordinance set forth in the petition, and asked said council for the consideration and passage thereof.
“This defendant further says that said ordinance and application for the passage thereof was referred by council to the committee on telephones, telegraphs and conduits in connection, with the application of three other alleged companies for passage of similar ordinances; that said committee, after a full consideration thereof, on January 25, 1904, made the following report:
“ ‘Cincinnati, January 25, 1904.
‘To the Honorable, the Council of the City of Cincinnati.
“ ‘Gentlemen: You have referred to the committee on telephones, telegraphs and conduits the applications for the rights or franchises in the streets of City of Cincinnati for telephone purposes, filed by The Cincinnati Telephone Company, The-Interstate Telephone Company, The Queen City Telephone Company and the The Fitzsimmons Telephone Company, together with the several proposed ordinances prepared by said companies and filed with their applications.
“ ‘Your committee has had numerous public meetings, at which the representatives- of the above mentioned companies were heard, as well as the representatives of The Cincinnati & Suburban Telephone Company, with all the evidence which said companies saw fit to present. Said evidence is quite voluminous and is returned with this report.
“ ‘Your committee has not considered the question of law, as to whether or not the granting by the city of a right or franchise in the streets of the city, for telephone purposes, to each and every company that may apply therefor, is mandatory upon the city authorities, or what would be the legal result of a refusal to grant any franchises, but have considered, upon broad principles of public policy, convenience and safety, whether or not, under the conditions as they now exist in the City of Cincinmati, it would be advisable for the city authorities to grant any or all of the applications as made. In the consideration of this matter, your committee has called to its assistance the city engineer, Mr. H. J. Stanley, and the city electrician, Mr. Weissleder, and has caused a plat to be prepared, showing all the uses to which the streets of the city are now subject. Such plat and the evidence offered pertaining thereto show that in the various streets of the city there is a network of telephone, telegraph and electric light conduits, gas, sewer and water pipes, with the various manholes and fire cisterns used in connection thereof; that at the intersection of the principal streets such conduits, pipes and manholes now occupy so great a proportion of the street that it would be dangerous, if not impossible, to permit a further use of the street for such' purposes, and, in view of the uniform custom existing in the City of Cincinnati to permit the property owners to utilize the space underneath the sidewalk, as far as the curb, for the purposes of their buildings, the space available for conduit purposes is confined to the surface underneath and between the two curbs. Moreover, the principal streets of the city have been permanently improved, and to permit their disturbance beyond the necessities therefor, which even now interfere with their usefulness, would only subject the public to an inconvenience and annoyance, from which, if possible, they should be protected. It is not to be presumed ‘ that the City of Cincinnati in its continued growth will not need in such principal streets additional facilities for sewer and water purposes, and whatever space is now left unutilized for conduit and other subterranean purposes will certainly be used in the future for the ordinary demands of municipal life, independent of any new system of underground telephone conduits. One of the facts inquired into by your committee has been whether or not there is a demand at the present time for an additional and independent system of telephones for public and private use. Although much has been said before this committee by the representatives of the above named applicant companies, yet there has been no evidence on the part of the people generally of any desire for a.double telephone system. On the contrary, the users of telephones within the city, so far as it is shown by any evidence before this committee, have been opposed to the establishment in the city of any such double telephone system.
“ ‘The present applicants, with the exception of The Fitzsimmons Company, whose franchise is doubtful, and who have only a few lines connecting depots and hotels, used mainly fór cab purposes, have no lines within the city limits. They are constituted for non-residents of the city, and their- financial standing and ability to establish in the City of 'Cincinnati any satisfactory telephone service has not been conclusively established to your committee.
“ ‘Only one of the companies, the Queen City, has presented* any evidence of prospective subscribers or users of its telephone. Of a list of nine hundred and fifty-four persons given as prospective subscribers to The Qtieen City Telephone Company, seventy-seven are residents of Covington, Newport, and cities and yillages other than Cincinnati, and six hundred and twenty already have telephones, leaving only three hundred and thirty-four to be supplied with telephone accommodations with which they are not already provided.
“ ‘It further appears that the above prospective subscribers were obtained under contracts or promises by which no charge was to be made for telephones until ten thousand subscribers therefor had been obtained.
“ ‘Another important fact, in consideration of this question, is the present telephone service in Cincinnati. The City of Cincinnati was one of the first cities to avail itself of the use of the telephone, and the company introducing such use has been in charge of our system from the beginning. It has, in all the requirements of telephone service, kept up with the demands of the hour. There is no evidence that telephone service in any city is superior to that of Cincinnati. Without compulsion on the part of the cfties it has placed its wires in underground conduits as rapidly as could be expected, and the principal streets have substantial and improved conduits for the wires of such company. It has some twenty thousand telephones in use in Cincinnati and vicinity, and its facilities have been increased during the past year, so as to permit an increase in the number of its subscribers at the rate of about four hundred per month. There seems to be no complaints as to the service furnished by the local company, except as to such inconveniences as necessarily accompany the operation of any telephone system. The rates charged by the present company compare favorably with the rates charged by companies in other large cities in the country for similar service, and such rates have, from time to time, been voluntarily reduced or modified by the company as business expediency indicated. In the adoption and substitution of improved apparati or methods the company •has kept pace with the inventions of the age. Its long-distance service, by reason of its double metallic circuit, has been satisfactory, while the long-distance service promised by any of the applicant companies, in view of their lack of substantial lines, even where in operation outside of Cincinnati, would never be satisfactory to the citizens of Cincinnati after having been accustomed to the efficient service of the local company. The evidence further shows that the local company, wherever satisfactory long-distance service can be had through companies in operation outside of Cincinnati, the local company has been willing, upon reasonable terms, to make arrangements for exchange of service.
“ ‘It is almost universally conceded that in localities where two telephone systems are in operation,’ the possession by the subscribers of both telephones is a necessity. The business man, physician and -lawyer can not undertake to dictate .to- the persons with whom they are doing business which telephone must be used. It therefore becomes necessary, in order to do business generally, to have both telephones. This means a double expense for telephones. Ordinarily, competition reduces prices, but if, as is shown, by the evidence adduced before this committee, sixty per cent, of the subscribers in localities where there is a double system must have two telephones, then, unless the price of each is less than one-half of the- cost of proper telephone service, competition would result only in an increased price for telephone service.
“ ‘ To your committee any of the reasons given for the granting of any of the applications above mentioned are equally applicable to all, and the reasons for not granting to any are alike applicable to all.
“ ‘ We therefore recommend that the applications above mentioned are rejected.
“ ‘Respectfully submitted,
“ ‘Joseph Schweninger,
“ ‘Michael Mullen,
“ ‘James Keenan,
“ ‘E. O. Bathgate,
“ ‘Louis Schueler,
“ ‘Committee on Telephones, Telegraphs and Conduits
“On the 25th day of January, 1904, the Council of the City of Cincinnati adopted said report, and in pursuance thereof refused to pass the ordinance set forth in the petition.
“This defendant further says that at the time when said ordinance above referred to was presented to council for passage, three other companies, to-wit, The Cincinnati Telephone Company, The Interstate Telephone Company and The Fitzsimmons Telephone Manufacturing Company presented to said council for passage ordinances fixing the mode of use of the streets of' said city by said several companies; that said ordinances were referred to said committee on telephones, telegraphs and conduits, and on the 25th day of January, 1904, the Council of the City of Cincinnati, in pursuance of the report of said committee, refused to pass any of said ordinances presented by said companies; that thereupon, on the following day, January 26, 1904, the plaintiff herein and said three other telephone companies filed an application in this court, asking that this court fix the mode of the use of the streets of said city by said companies for telephone purposes, all of which actions are still pending.
“This defendant further says that all the streets in the City of Cincinnati, in the business portion thereof, and the majority of said streets in the residence portion and the outlying districts, have been permanently improved, either with granite, asphalt, brick, bowlder or macadam; that in the various streets and highways of said city there is now an underground network of telephone, telegraph, electric light conduits, gas, sewer and water pipes, with the various manholes and fire cisterns used in connection therewith; that at the intersection of the principal streets such conduits, pipes, manholes and other structures now occupy so great a proportion of the streets that it is dangerous, if not impossible-, to permit a further use of the streets, for such purposes; that in said city it is the uniform custom to permit property owners to utilize the space underneath the sidewalk as far as the curb for the purposes of their buildings; that-in the continued growth of said city such space as is not now used for underground purposes will be necessary to be used in the extension of the system of underground purposes by the city and other purposes now having a right to use the streets for such purposes.
“This defendant further says that The Cincinnati & Suburban Bell Telephone Company, a corporation under the laws of Ohio, now owns and operates a telephone exchange and system of wires for telephone purposes through conduits and upon poles in the streets and highways of the City of Cincinnati under an agreement with said defendant for the maintenance and use of telephone conduits and poles; that said company occupies all of the business portion and a large part of the residence portion with underground conduits, to-wit, all that portion between Freeman and Eggleston avenue, and the Ohio River and MeMieken avenue, together with many other thoroughfares leading in the suburbs of the city, and that with these facilities and pole lines in outlying portions it is able to and it has supplied all the demands made or existing within the city for telephone service; that no further occupancy of the streets or highways is at all necessary for the purpose of such service, and that further occupancy for the same would incommode the public in the use of such streets and highways, and would cause additional expense to the residents and business concerns of the city; and if the plaintiff were permitted to occupy and should occupy the streets and highways of the city for telephone purposes, and much more if the applicants aforesaid or any future applicants were permitted so to do,, and should occupy said streets and highways, such occupancy would, in operation and effect, divert the said streets and highways, especially in the business portion of the city, from their original and legitimate purposes and uses, and prevent the further growth and extension of the uses to which the said City of Cincinnati ought to and will be compelled to apply them; and that under these circumstances and facts it was impracticable, as in substance and effect stated in the report above set out, for the city to formulate the terms of or to enter into an agreement with the plaintiff, or the other applicants above mentioned, for the occupancy of its streets and highways for the further telephone use and service, and that in consequence it did not unreasonably refuse to adopt the ordinance which plaintiff presented and sought to have passed either as the ordinance was written or as it could reasonably be amended. By reason thereof, said Cincinnati & Suburban Bell Telephone Company claims an interest in the streets and highways of said city superior to any right which plaintiff may acquire. '
“This defendant denies all other allegations in plaintiff’s petition not herein expressly admitted.
“Wherefore, this defendant prays that said The Cincinnati Telephone Company, The Interstate Telephone Company, The Fitzsimmons Manufacturing Telephone Company and The Cincinnati & Suburban Bell Telephone Company be made parties herein, and be required to set up their several claims to rights in the streets of the City of Cincinnati, and for all other and proper relief.
“Chas. J. Hunt,
“City Solicitor.
“(Duly verified).”

To which, said telephone company replied as follows:

“Now come the plaintiff, and by way of reply to the defendant, says that it admits that the ordinance transmitted to council by the plaintiff, was referred by council to its committee on telephones, telegraphs and conduits in connection with the application of three other companies for passage of similar ordinances, and admits that said committee made the report set out in< said answer, and that the Council of the City of Cincinnati adopted said report on the 25th day of January, 1904, and refused to pass the ordinance described in the petition, or any other ordinance, and refused to agree with the plaintiff herein as to the mode and manner of occupying the streets of the City of Cincinnati for its purposes. And admits that at the time said ordinance above referred to was presented to council, three other companies presented similar ordinances to council, and denies each and every other allegation in said answer contained.
“C." B. Matthews,
“ (Duly verified.) “Plaintiff’s Attorney.’’

The case was heard on evidence at length, and argued by counsel, and the court made the following finding and decree:

“This cause came on for hearing upon the pleadings and the evidence, and was argued by counsel, and the court being fully advised in the premises, finds:
“First. That the plaintiff is a corporation incorporated and organized under the laws of the state of Ohio, for the purpose of building, owning, maintaining and operating a system of telephone and telegraph lines and conducting a telephone and telegraph business in the City of Cincinnati and elsewhere, and is authorized to bring this proceeding, and that the defendant is a municipal corporation and a city under the laws of this state.
“Second. That on the 12th day of October, 1903, the plaintiff by authority of its board of directors, applied to the defendant, through its council, for the purpose of coming-to an agreement with said city as to the mode of use of the streets, alleys, public ways and other public property of, and within the limits of said city for its lines, but said city on January 25, 1904, refused to agree with the plaintiff upon the mode of use of such streets, alleys, public ways, and other public property for the purposes of its telephone and telegraph lines and system, upon any terms, and that it is necessary for said plaintiff to use said streets, alleys and public ways.
“Third. That all steps had been taken and all the events had transpired and happened at the time of the filing of the petition herein, authorizing the plaintiff to apply to this court to fix the mode of use of such streets, alleys, public ways and other pnblic property for the purposes aforesaid. Therefore, the court, coming now to direct the mode of such use, directs that the plaintiff shall use the streets, alleys, public ways of and within the limits of said City of Cincinnati for its telephone lines and system in manner following, to-wit:
“(a) That in the district of the said city bounded as follows: Along MeMicken avenue from the intersection of MeMicken avenue and Freeman avenue, to the intersection of MeMicken avenue and Main street; from there along Main street to the intersection of Main and Liberty streets; from there along Liberty street to the intersection of Broadway and Liberty street; from there along Broadway to the intersection of Broadway -and Eggleston avenue; from there along Eggleston avenue to the intersection of Eggleston avenue and Third street; from there along Third street to the intersection of Third and Front streets; from there along Front street to the intersection of Front street and Freeman avenue; from there along Freeman avenue to the place of beginning, to-wit, the intersection of MeMicken and Freeman avenues, and in such other thickly settled portions of the city as said plaintiff may from time to time select; all its wires shall be placed in underground conduits or subways, and no poles shall be erected- in said dictriet or other portions of the city where the wires are placed in conduits, except for distribution of wires or cables from conduits or subways to buildings, and all such poles shall be, as far as possible, located in alleys, but in the portion of said district north of Liberty and east of Central avenue, pole lines may be erected in the localities not solidly improved.
“In the balance o.f the territory within the city limits said plaintiff is authorized to erect in the streets, alleys and public ways the necessary poles and string the necessary wires thereon for its telephone and telegraph lines, but reserving to the abutting property owners all their existing rights.
“The plaintiff in constructing its system is authorized to construct all conduits, pole lines, abutments, manholes, and ■house and exchange connection in the respective districts above named, necessary to make its system a complete working system of telephonic communication.
“(6) All poles which are to be used and erected by the plaintiff shall be smooth and painted, and shall be located and erected under the supervision of the board of public service of said city and to its satisfaction, and the wires shall in no case approach nearer than twenty-live feet to the surface of any street, alley,' public way, or private drive-way over or along which the line or lines of said plaintiff may pass, and all lines, poles and conduits shall be so placed as not to injure other telephone and telegraph lines and other structures lawfully occupying said streets, alleys or ways, either overhead or under the surface; and shall be further so placed so as not to obstruct the access of abutting property to gas mains, water mains and sewers, or other structures in said streets to which said .abutting property owner has a right of access.
“(c) If at any time any of the poles or conduits erected by the plaintiff under the provisions of this decree shall interfere with the public use of any of the said streets or property of the city so that it would be proper and advisable to order a change therein, the said city may require the plaintiff to change the location or construction of said pole or poles or conduits to some other practicable location or design, without expense to the city.
“(d) From time to time said plaintiff shall before entering upon the construction of the contemplated work, file with the board of public service plans showing the location and character of the work designed to be constructed, but if there is anything improper in the location or design shown by said plans, said board shall not be deprived of its power to change the same so as to adjust the location and character of the work to meet the conditions existing at the particular locality, and unless so changed within ten (10) days, permits shall be issued for the construction thereof.
“(e) Said plaintiff shall, upon written notice from the proper authorities of said city, that any local improvement, sewer or water main is to be repaired or constructed in such a manner as will require the removal or altering of any pole or poles, conduit or conduits, remove and change the same without cost to the city so as to permit the construction or repairing of said improvement where ordered.
“(f) All work shall be done in a thoroughly workmanlike manner, and of the best materials; and the board of public service shall prescribe the manner of restoring the streets, alleys and public ways, and shall be permitted to appoint an inspector or inspectors, at plaintiff’s expense, to supervise the work of restoration.
(g) Before any w'ork is commenced, the plaintiff shall give a bond of not less than one hundred thousand dollars ($100,-000) to be executed by a surety company and to be approved by the board of public service, conditioned that the plaintiff will restore all streets, alleys and public ways where excavated by it, and that the points and along the lines of excavation, said plaintiff will, for a period of three years thereafter, keep the excavated parts in repair, and that the plaintiff will save the city harmless from any liability arising out of the construction or alteration of the plaintiff’s telephone system.
“(h) One duet in the conduits and one cross-arm on the plaintiff’s poles shall be reserved to the city for use for its police and fire alarm service wires.
“The plaintiff shall file in court its written acceptance of the terms prescribed, within twenty days from the entry of this order, and shall pay the cost of this proceeding.
“To all of which the defendant excepts, and the defendant having given its notice of appeal to the court of common pleas, the court fixes the amount of the appeal bond at five hundred dollars ($500).”

The City of Cincinnati prosecuted error to the court of common pleas and that court reversed the judgment of the probate court. The opinion of Littleford, J., is found in 2 N. P. — N. S., page 349.

Did the court of common pleas err in its judgment of reversal ?

Some of the questions presented in this record have' been before the Supreme Court of our state, in the ease of Zanesville v. Telegraph and Telephone Company, reported in 63 O. S., 442, and 64 O. S., 67.

In the 63 O. S., 442, the court by a divided court, held Section 3461, Revised Statutes, unconstitutional and on a re-hearing the same court, two judges dissenting, held said section constitutional.

The telegraph and telephone company made application to the City Council of Zanesville for an ordinance for the use of the streets of said city, in order to carry on its business in said city. Said council refused to come to any agreement with said company, and thereupon said company filed its petition in the Probate Court of Muskingum County for an order under said section. Upon a hearing, said court held the law to be unconstitutional, and dismissed the proceeding. This judgment was affirmed by the court of common pleas. The judgment of affirmance was reversed by the circuit court of said county. In the 63 O. S., the judgment of the circuit court was reversed and on a re-hearing in the 64 O. S., the judgment of the circuit court was affirmed. The only question considered by the Supreme Court in both decisions, it might be said, was whether said section was constitutional. The probate court had so held and dismissed the petition of the company for the reason that the section was unconstitutional. In the 63 O. S. the opinion and judgment of. the court is that said section is void because it is unconstitutional. In the 64 O. S. the section is held to be constitutional.

In the 64 O. S., the court say, at page 72:

“The only question that has engaged the attention of counsel and the court on each of the hearings, is whether the provision of Section 3461 of the Revised Statutes which confers jurisdiction on the probate court to direct the mode of constructing a telegraph or telephone line in the streets of a municipality, when its authorities and the company are unable to agree, is repugnant to the Constitution of the state; and the sole ground of the attack upon the constitutionality of the provision alluded to, is that the power that it purports to confer on the court is purely legislative in character.”

The first proposition in the syllabus in the case in the 64 O. S. is as follows:

“The distribution of the powers of the state, by the Constitution, to the legislative, executive and judicial departments, operates, by implication, as an inhibition against the imposition upon either, of those powers which distinctively belong to one of the other departments.”

The second proposition is as follows:

£ £ The fact that a power is conferred by statute on a court of justice, to be exercised by it in the first instance in 'a proceeding instituted therein, is, itself, of controlling importance as fixing the judicial character of the power, and is decisive in that respect unless it is reasonably certain that the power belongs exclusively to the legislative or executive department.”

And the third proposition is as follows:

“The institution and prosecution of a proceeding'in a court comprehends the filing of a proper complaint, process for bringing in the proper parties, and a judicial inquiry according to established rules and practice.”

These three propositions are the basis of the decision. The court, in the opinion, discusses Sections 3456, 3458 and 3459 of the Revised Statutes, and says that Section 3461 is not different in its nature from Section 3459.

It is evident from a reading of Section 3459 that any matter brought before the probate court under this section must be concrete, 'and the court may render judgment as to any particular and definite place or places and a decree in general, and not dealing with any particular place or places would seem to be outside of the provisions of the statute, and would be legislative in character.

A careful reading of Section 3461 clearly shows, that what is to be determined by the probate court, when the municipal authorities and the company can not agree, is something concrete and definite, and not general. The language is:

“When any lands authorized to be appropriated to the use of a company are subject to the easement of a street, alley, public way, or other public use, within the limits of any city or village, the mode of use shall be such as shall be agreed upon between the municipal authorities of the city or village and the company; and if they can not agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court of the county, in a proceeding instituted for the purpose, shall direct in what mode such telegraph line shall be constructed along such street, alley or public way, so as not to incommode, the public in the use of the same; but nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, or alley,, or public way, beyond what may be necessary to restore the pavement to its former state of usefulness.”

And while all the streets of a municipality might be subjected to the use of the company by the probate court in a proper case under this section, that could only be done by a consideration of each street or alley. In other words, the section ■does not contemplate that the probate court is to make general regulations as to all the streets of a municipality. This would be legislative.

The two eases cited by the court in the 64 O. S., as authorities in accord with the decision of the court, deal with a definite and concrete subject — both are bridge cases. One is as to the use of a particular bridge, and the other is as to the height of a span of a bridge across the Ohio river at a particular place.

In the 63 O. S. the court cite the 69 Conn., 576, as sustaining its holding that Section 3461 is unconstitutional, but in the 64 O. S., the court hold that that case had no application to our statute for the reason that the statute of Connecticut, by its provisions, transferred to the court by appeal, all the powers originally vested in council and that the court thereby became vested with legislative and not'judicial powers.

It is quite clear from these decisions that this section (3461) is constitutional, and in a proper case the probate court has jurisdiction to render a judgment, but that judgment must be a judicial determination according to established rules and practice, and not a general grant as to the use of all the streets of a municipality, which would be legislative, and simply a substitution of a court for a council.

The distinction between the legislative and the judicial powers of the state is adhered to as strictly in the 64 O. S. as in the 63 O. S.

The question must arise in every case, however, whether the ■court has exercised the power granted under this section in a proper manner. If the court has decided a judicial question, it is within the power of the statute; if then,' on the other hand, the court has gone beyond and without the statute and assumed legislative powers, it is without the statute and to such ■extent void.

This brings us to a consideration of what was done in this ease.

The petition alleged that on the 12th day of October, 1903, The Queen City Telephone Company made application to the ■City Council of the City of Cincinnati, under the laws of the .state, to prescribe a manner of use by this company, of the streets, alleys and public ways and other public property of the said city, in constructing the plaintiff’s lines, telegraph and telephone, and transmit at the same time a form of the ordinance that this company was willing to accept.

The prayer of the petition asked that the court direct in what mode the plaintiff may construct its telephone and telegraph line along the streets, alleys, public ways and public property of the said City of Cincinnati.

The gist of the answer is that as to the principal streets of the city, it would greatly incommode the public and would be dangerous to the public. This was denied by the telephone company. On the trial, the city offered evidence at length of a high character to sustain its allegations, and the defendant offered evidence to rebut this. So that here was an issue presented in the pleadings for the court to determine according to the evidence.

We look in vain through the decree of the court for any judgment on the issues joined. This is no judicial determination of a judicial question. It is not a finding and the judgment thereon. It is not in substance or in form, a decree. In form and in substance, it is nothing more than an ordinance, an act of legislation, in the name of a decree. This was not intended by Section 3461, and if intended, would be unconstitutional. The court clearly misapprehended its power.

Has this telephone company the right to “construct and maintain underground wires and pipes or conduits, and other fixtures for containing, protecting and operating such wires in the streets and public ways” of the City of Cincinnati? If it has any such right, it must be found to have been clearly granted by statute. The right of eminent domain rests in a grant. If not granted, there is no power. Section 3471-1, Revised Statutes, provides that it shall be unlawful for any corporation, company or individual, to erect any telephone or telegraph pole or poles within that portion of any city in this state, when subways have been constructed.

In a large portion of the City of Cincinnati, subways have been constructed and were in use for telegraph and telephone purposes before this suit was brought.

The first provision by the Legislature of Ohio was passed February 8, 1847, authorizing the construction of electric telegraph lines (45 O. L., 34, now found in Bates (1904) Statutes as Section 3461-1, Section 1), and is as follows:

“Lines of electric telegraphs may he constructed in anyplace so they do not incommode the public. — Any person or persons may be and are hereby authorized to construct lines of , electric telegraphs, from point to point, upon and along any of the public roads and highways, and across any of the waters within the limits of this state, by the erection of the necessary fixtures, including posts, piers, or abutments for sustaining the cord or wires of such lines; provided, that the same shall not in any instance be so constructed as to incommode the public in the use of said roads or highways, or endanger or injuriously interrupt the navigation of said waters; nor shall this act be so construed as to authorize the erection of any bridge across any of the waters of this state. ’ ’

This was followed by a further grant of the Legislature on May 1, 1852 (50 O. L., 287, S. & C., 299, and in Bates [1904] as Section 3454), and is as follows:

“Powers of companies. — A magnetic telegraph company heretofore or hereafter created may construct telegraph lines, from point to point, along and upon any public road, by the erection of the necessary fixtures, including posts, piers, and abutments ■necessary for the wires; but the same shall not incommode the public in the use of such road.”

They are in substance the same and the first provision not having been repealed, they should be read together.

It is a well settled rule'of construction that a statute must 'be read in the light of the conditions that existed at the time of the passage of the aet in order to ascertain the meaning of the Legislature. And in matters of this kind, the court will take judicial notice of such conditions. The common ordinary way in which telegraph lines were constructed and used, in Ohio, and elsewhere in the United States, at the time of the passage of these acts, and up to the present time, was by an above ground or overhead construction by means of posts or poles set in the ground upon which wires were sustained. This mode and construction of telegraph lines is now universal in all points of Ohio, except in a few of the most populous cities of the state, and it still largely prevails in the most populous cities except upon certain of the busiest streets; and this is the condition in the City of Cincinnati today, and up until the passage of Section 3471, Section 1, in 1891, the construction was all overhead.

Read with reference to the conditions that have existed in this state up to the passage of the last-named section in 1891, there seems no reason to doubt but what the mode of construction provided for in Sections 3454 and 3461-1, Section 1, was an overhead construction, by means of posts planted in the ground upon which wires or cords were strung. Every word used in these sections is appropriate to describe such a construction, and no word indicates any other idea, unless it is the word “fixtures,” but evidently this word is used in connection with the words “posts, piers and abutments,” and are such fixtures as would be necessary and proper for an overhead construction.

The Legislature having clearly expressed itself as to one mode and manner of construction of telegraph lines, by fit and apt language, it would only be reasonable to conclude that if another and entirely different mode of construction was intended to be granted, other and different words would be used which would clearly describe the other and different mode of construction. These sections remained unaltered from the time of their passage until April 8, 1891, when Section 3471-1, Section 1, was passed. During all this time, all over the state and in every city, village and hamlet, telegraph and telephone companies constructed and maintained a pole or overhead construction. But there came a time when this mode of construction in certain of the busiest portions of our cities, greatly discommoded the public, and was difficult to be maintained by the corporation, and a new mode of construction and operation of these lines became necessary and the result was that the Legislature on April 8, 1891, passed the following act (Vol. 88, O. L., page 296):

“Section 1. Be it enacted by the General Assembly of the State of Ohio, that any company organized under the laws of this or any other state, and owning and operating a telephone exchange in any city in this state, may construct and maintain underground wires and pipes, or conduits and other fixtures for containing, protecting and operating such wires in the streets and public ways of said city, when the consent of such city has been obtained therefor.”

This act provides that any company organized under the laws of this or any other state, and owning and operating a telephone exchange in any city of the state, may construct and maintain underground wires and .pipes, or conduits and other fixtures for constructing such wires in the streets of said city. It will be noticed that this law made no provision for an underground construction for telegraph companies.

This law was amended May 8, 1894 (91 O. L., 205), which is now Section 3471-1, Section 1, Bates’ Statutes. This section, as it now stands, provides that any company organized under the laws of this state or of any other state, and owning and operating a telephone exchange or doing a telegraph business in any city in this state, may construct and maintain underground wdres and pipes, or conduits and other fixtures for containing, protecting and operating such wires in the streets and public ways of said city, when the consent of such city has been obtained therefor. The section further provides that it shall be unlawful for any company to erect any telephone or telegraph pole or poles within that portion of the city where subways have been constructed. It further provides that the act shall not apply to existing telegraph companies until such companies have authority and time to construct subways. It must be conceded that this section, as it now stands, is, in effect, a legislative declaration that the right to any telephone or telegraph company to construct and maintain underground wires in pipes or conduits in any street in any city in this state, did not hitherto exist, and that the companies who are granted these rights by this section, get such rights by virtue of this section, and none other, and that any company that does not come under the provisions of this section, has no right to construct and maintain an underground system.

I think there can be no question but what this section applies to telephone and telegraph companies in existence at the time of the passage of the act, as well as to those companies which may come into existence after its passage. The language is any company owning and operating a telephone exchange or doing a telegraph business in any city in this state. This language would apply as well to companies in existence as to those which may afterwards come into existence. If there could be any question as to this, it would seem to be made clear by the proviso contained in the section which reads as follows:

“Provided that this section shall not apply to existing telegraph companies until such companies shall have authority and sufficient time to construct subways.”

If this section only applied to existing companies, there would be no occasion to speak of “existing telegraph companies”; furthermore, there could be no reason why it should not apply to now existing as well as to pre-existing companies. Whether the company was in existence or not could not be of importance; the most important matter was the placing of the wires underground in the streets of the city, when the consent of the city was obtained. It would be difficult to understand why it would be necessary for a company in existence, which owned and operated a telephone exchange in a city, to first obtain the consent' of the city to place its wires in conduits underground, while a company not then in existence, and which was not owning and operating a telephone exchange, might place its wire in conduits underground in the streets of a city without the city’s consent.

We must therefore look to the act, and ascertain what companies may, when the consent of the city is obtained, construct and maintain underground wires in pipes and conduits in the streets and public ways of the city.

The statute says that any company organized under the laws of this or of any other state and owning and operating a telephone exchange, or doing a telegraph business, in any city in this state, may construct and maintain underground wires and pipes or conduits, etc., with the consent of the city. It is admitted that The Queen City Telephone Company did not own and operate a telephone exchange in the City of Cincinnati. It must, therefore, be apparent that this company can have no right to construct an underground system by virtue of this section, for the section clearly and specifically says, that any telephone company owning and operating a telephone exchange and any telegraph company doing a telegraph business in any city in this state, may, with the consent of such city, use the streets for underground wires. There does not seem to be any room to question what is meant by the words used in this act. The statement is plain and direct to the effect that ■a telephone company owning and operating a telephone exchange and any telegraph cimpany doing .a telegraph business in any city in this state, may construct and maintain underground wires. There is no authority given to any other kind of a company to construct and maintain underground wires in the streets of any city in this state. Many reasons might be given why the Legislature has limited the right to telephone companies owning and operating a telephone exchange and to telegraph companies doing a telegraph business in the cities in the state, to use an underground system of wires in the streets of the cities of the state, but with the wisdom of the act the court is not concerned, for that is within the province of the Legislature. If the meaning of the act is clear and certain, the only duty resting on the court is to give it effect and carry it into execution. If, however, the meaning is indefinite and uncertain, the court may well consider the reasonableness of any construction contended for in order to ascertain the true meaning of the act, but the meaning of this act is too plain to admit of question.

If I am correct in my conclusions, this company has no right to construct and maintain underground wires in any city in this state. It does not have any such right given by Section 3454 and 3461-1, Section 1, which we hold only authorized a pole or overhead construction, and it does not get any such right from Section 3471-1, Section 1, for that section confers such right only on a telephone company owning and operating a telephone exchange, and this company does not own and operate a telephone exchange in this city, and these sections are the only ones found in our statute which purport to grant to such companies power to construct and maintain these lines.

Another question has arisen in the ease, and that is, as to the right of the Queen City Company to maintain the action in the probate court.

We are of the opinion that this case should come under the rule as laid down in the case of Powers v. The Railway Company, 33 O. S., 429, wherein it is held that—

“Where a railroad company proceeds to appropriate lands for its use, it is essential to a judgment of condemnation that it should prove its corporate existence and that it has complied with the law giving it the right.to exercise the power of eminent domain.
“It is essential to the exercise of eminent domain for the company to prove that it has fully organized by the election of directors.” * * *•

In the 64 O. S., our Supreme Court say, that this action is in the nature of an appropriation proceeding, and this being so, we see no reason why it should not apply as well to a telephone company as a railroad company.

Without going into a review of the facts in this case, we deem it sufficient to say that the law of the state applicable to the formation of the company and the election of directors has not been fully complied with.

C. B. Matthews, for plaintiff in error.

Charles J. Hunt, Corporation Counsel, for the City of Cincinnati.

Peck, Shaffer <& Peck, John W. Warrington and Miller Outcalt, for The Cincinnati & Suburban Bell Telephone Company.

Jedke, J.

I concur in the conclusion reached by Swing, J., especially in his construction and application of Revised Statutes, 3461.

While the question of the constitutionality of this section is not open to us, having been determined by the Supreme Court to be constitutional, I am of opinion the action of the probate court herein was an unconstitutional construction and application of that law.

The decree of the probate court was pure municipal legislation, and no act of the Legislature can make an act legislative in its very essence, judicial in nature, and no construction or application of a constitutional law should be made or can constitutionally be made which would work out that effect.

I dissent from that part of the opinion which limits the combined application of Revised Statutes, 3454, and Revised Statutes, 3471-1, to overhead construction and companies now in existence, and having and operating a switch-board or exchange, as such construction would be contrary to the Constitution, as-tending to create a monopoly.

I further concur in the conclusion that The Queen City Telephone Company was not properly organized to apply for or to receive a grant. '


text:
    ELECTION OF WIDOW.
    [Circuit Court of Columbiana County.]
    Anna Laura Mellinger v. Albert W. Mellinger et al.
    Decided, October Term, 1904.

      Widow — Cancellation of Election of — Under Section 5964, Revised Statutes.

    A deputy clerk of the probate court has no authority under Section 5964, Revised Statutes, to receive the election of a widow to take under the will of her deceased husband; and when such election is made before . a deputy clerk, the same will he canceled and vacated upon a suit in equity for that purpose.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Appeal from common pleas court.
   The question made in this case is upon the election of a widow to take under the will of her deceased husband.

On the 10th day of October, 1901, Melchor Mellinger died testate. On the 30th day of October of the same year the will was probated and the widow, plaintiff, elected to take under the will.

The election was taken by Miss Atchison, who was said by counsel to be deputy probate judge, but in fact under the statute could only be deputy clerk of the probate court (Section 533, Revised Statutes).

The object of this action is to cancel the election to take under the will made in the probate court.

In the case of Davis et al v. Davis, 11 O. S., 386, it was determined that the party is entitled to such relief where the election was procured by fraud or imposition or entered under such a mistake as would justify its rescission.

It is claimed by plaintiff that she was not fully informed of her rights under the law by Miss Atchison, as required by Section 5964 of the Revised Statutes, and the evidence supports her claim; but the more important question is was she informed •at all.

S. W. Ramsey, for plaintiff.

C. S. Speaker, for defendants.

Wbat authority had Miss Atchison, as deputy clerk, to take the election? She could perform such clerical or ministerial duties only as pertained to her as clerk of the court (Warwick v. State, 25 O. S., 21).

Taking the election of a widow and advising her of her rights under the will, and under the law, are judicial functions and can only be exercised by the judge in his judicial capacity. In giving such advice he must know the law and exercise judgment and judicial discretion in ascertaining whether or not the widow understands her rights. What would a mere deputy clerk who has possibly been in the office' but a. few weeks or months, know about her rights under the will or the law? Indeed, it is difficult sometimes for those well versed in the law to know what a beneficiary’s rights are under a will. Section 5964 seems to provide that the advice must be given by the judge. It says:

“It shall be the duty of the court to explain the provisions of the will, the rights under it, and by law, in the event of a refusal to take under the will.”

Decree will be entered as prayed for in the petition, that the entry in the probate .court be canceled and vacated, and the plaintiff restored to her rights in the same manner as if no such entry of election had been made.