author: HAYNES, J.

text:
    INSURANCE — INDEMNITY.
    [Lucas Circuit Court,
    February 23, 1903.]
    [Haynes, Parker and Hull, JJ.]
    Travelers Insurance Co. of Hartford, Conn., v. William W. Bright.
    Indemnity Insurance — Laborer Defined.
    A man employed as a laborer by a “contracting carpenter” in constructing a building, is a laborer in the employ of such contractor within the meaning of an indemnity insurance policy held by the latter, although he is employed’ upon a hoisting apparatus leased and operated jointly by such “ contracting carpenter ” and another contractor, where it appears that he continues to receive his wages from his employer only, and that such a hoisting apparatus is a necessary and usual part of the business of a contracting carpenter.
    Heard on Error.
    Doyle & Lewis, for plaintiff in error.
    A. L. Smith, D. L. Beall and Charles E. Longwell, for defendant in error.
   HAYNES, J.

In this case a judgment was rendered in the court of common pleas, against the insurance company on certain matters set out in the petition. The controvery grew out of insurance which had been effected by Bright against loss on account of bodily injury to certain men who were in Bright’s employ. The policies of insurance, in the main clause, provided as follows:

“ The company does hereby agree to indemnify William W. Bright, of. Toledo, county of Lucas, state of Ohio, (hereinafter called “ the assured ”) for the period of twelve months, beginning on the fourth day of June, 1900, at noon, and ending on the fourth day of June, 1901, at noon, standard time, at the place where this policy has been countersigned, against loss from common law or statutory liability, for damages on account of bodily injuries, fatal or non-fatal, accidentally suffered within the period of this policy by any employe or employes of the assured while on duty at the places and in the occupations mentioned in said application, in and during the continuance of the work described in the said application; subject to the following agreements, which are to be construed as conditions.”

Bright, in his petition, avers that having taken out this policy, he proceeded to do certain work in the city of Toledo, and while carrying forward that work, one of his men was killed; that an action was brought against him by the administrator; that upon said suit being' brought he notified the Travelers Insurance Company, as required by the terms of the policy of insurance, of the fact, and required them to defend ; that they replied that the loss did not come within the provisions of the policy, that they were not liable and, therefore, did, no.t defend. Bright proceeded to make defense to the suit, and such proceedings were had in the case that judgment was rendered against him for he sum of $1,500, which was afterwards compromised for a less amount, and thereupon he brought suit against the insurance company, to com. pel them to pay the amount under the terms of their policy.

The insurance company answered to that petition, as they had answered before, that the person who was killed was not working at the time in a position that brought him within the terms of the policy; in short, that there was no liability on their part for the death of the party, or to indemnify Bright for the damages which he had suffered by reason of said death.

A reference is made in the policy to the application, which is made a part of the policy and is the real basis of it. It appears from the testimony, that Bright had taken a contract to put up three additional stories upon a large brick building at the corner of Summit and Adams streets in this city, which formerly belonged to the Bronson estate and then belonged to one of the Bronson heirs. He took the contract for doing the whole of the work, and then sublet the mason work to another party and the roofing and steel work to another party, he himself retaining and undertaking to do that which naturally came within the limits of a carpenter’s contract, and the painting and plastering. He had already sublet the brickwork when his attention was called to the matter of this insurance. An agent of the insurance company called upon him and the matter was discussed and resulted in an application being drawn up by the agent at the time and signed by Bright, the application being, of course, upon questions propounded by the agent and answers made by Mr. Bright. Still the matter that seemed to be in the minds of the parties was that it was to insure against accident which might result upon that building; nevertheless, the application was general in its terms for the period of one year and to coyer wherever the party should have work to do in Ohio, and no mention is made, so far as we can discover, of the building in question. Nevertheless, the policy was taken out at that time with reference to that building and with some understanding as between the agent and the contractor of the work which was there to be done. The building was already a three-story one, and the additional stories would carry it up to six or seven stories in height. The application reads as follows:

“The undersigned hereby applies for a contractors’ employers’ liability policy based upon the following statements of fact which are warranted to be true, and it is hereby agreed that if the applicant shall fail« to comply with the requirements of any statute, by-law, or ordinance respecting the safety of persons the policy shall not cover injuries resulting from such failure.
“Name of employer, William W. Bright.
“Address of employer, 2030 Adams street, Toledo, Lucas Co., Ohio.
“ Trade or business is contracting carpenter, painter and plasterer.”

The term “contracting carpenter,” we understand to mean, taking contracts for carpenter’s work or business. The point (,) that was made was after the word “ carpenter.”

" The occupations of employes, the average number in each occupation and estimated total annual wages by occupation are given in the following list:

“THE EMPLOYES.
Description of Estimated Estimated total Place Remarks,
occupation, average annual wages. where These men
number. work is to do not
Foreman......... 2 500 each be done. work all
Carpenters ..... 12 450 each Wherever the year.
Laborers......... 2 300 each I have
Plasterers........ 2 $21 per wk. each work to do,
Painters......... 2 450 year each Ohio and ad-
Hod carriers... 1 350 year each joining states.
“The operations are those usual to the trade or kind of business described above, except as follows:
None but the customary.
“ No power is used, except as follows: Steam for hoist.”

It further appears from the facts of the case, that at the time the contract was let for the brickwork there were some negotiations had between Hartman, who took that portion of the contract, and Bright in regard to the hoisting business, the taking up of the brick and the taking up of the necessary articles for the department that Bright was to carry forward, and there was some discussion whether Bright could get an engine, or whether the engine that Hartman had was sufficient or not, and this resulted in an arrangement between them whereby they rented an engine and hired an engineer, each to pay a man at the top to help manage matters up there, Bright owning the derrick or hoisting arrangement, and the tackle and ropes were bought with the expectation that Bright was to pay for them; but, as a matter of fact, Hartman took them, and paid for them, as he wanted to use them in another place. There was some question made as to whether that arrangement was all completed before this policy was completed and was understood by Mr. Hunker at that time; but Bright seems to have come to the conclusion that it was finally concluded before the application was signed by him ; it does not perhaps appear that Hunker understood or knew much about that part of it.

The parties went to work under those conditions. It turned out (and I suppose the jury found) that the hoisting works were insecurely fastened at the top of the building, and while' they were carrying on the work the hoisting apparatus gave way, and in falling carried the party who was killed to the ground. Now it happened that the articles which were being carried up at the time the apparatus fell were brick which were to be used by Hartman. There was some claim that the box in which they were placed was overloaded — that the load was too heavy; and it was stated by Bright that they were at least of full weight and perhaps a trifle more; that there were not more brick in, but the brick had become water-soaked by rain, and perhaps had been sprinkled, but they weighed a little heavier and would weigh perhaps 1800 pounds and the average weight would be about 1600 to 1700 pounds.

There is no question but what Binecka, the man who was killed, was hired by Bright. He was a laborer in his employ and had been ,with him for some time, perhas a year, working in various departments of the business. When they went to work upon this building he was at work there but had not been connected with the work about the hoisting apparatus until perhaps the day that he was killed. At any rate, on that day the mail who had been attending to that work failed to appear. The accident occurred on July 5. Mr. Bright, it seems, asked Binecka if he was willing to do that work, and he said he was willing, and undertook it.

Under this state of facts, the insurance company cláim that they are not liable, for the reason that the party who was killed was not, at the time he was killed, engaged in a work that brought him within the terms of the policy of insurance; in other words, that he was not at that time a laborer working in that department, in the carpenter business, or plastering, or painting,' but that in truth and in fact, if he were working for Hartman, he was working in the department of mason work.

The question involved in this case is one by no means free from difficulty, as we lound in discussing it, and we simply have to discuss these contracts and the facts of the case and arrive at a conclusion, because we do not know that there are any cases likely to help us. In a case of this kind, where there is any doubt in regard to the terms of the contract we think they should be resolved rather in favor of the assured than to be strictly resolved against them. The question here is, whether within the terms of this contract, the policy of insurance should be held to cover the damage which has been sustained by reason of the death of this man. Now,.this man was hired by Bright; he was hired as a laborer — the testimony seemed to show that, without any variation. He was paid the wages of a laborer in the employ oí Bright, and he continued to work there until on July 5, when he went to this place and was put to work on the hoisting apparatus, at the request of Bright and by his direction-, and took his position there as the employe of Brights and was, of course subject to his control. The -work which was being carried on was, that they would raise some matérial for Hartman and some material for Bright, and so it went on alternately, as the demands of the work on the building called for. The man opposite to him and working on the other side -was an employe of Hartman — sent there by Hartman and was paid by Hartman. It was claimed that by virtue of the arrangement between Hartman and Bright, they formed, as it were, a new partnership, and that this man, when he was there to work at this point, went into the employ, not of Bright alpne, but into the employ of Bright & Hartman, and that lie was carrying forward a more hazardous business. He was not carrying forward the carpenter business, nor the painting business, nor the plastering business, at least not exclusively, but he was doing more; he was doing that and at the same time carrying on the mason business in that he was raising brick for the use of the masons.

The case has been very fully and ably argued and many suggestions made in regard to the character assumed by this party in taking the position that he occupied in relation to the business and the work to be done, and it. was argued that he was really an employe of a new firm, as we have stated, of Bright & Hartman ; that no matter if Bright paid him, that the moment he went to work in that way he became the employe, for the time being, of Bright & Hartman, and that in case anything occurred by reason of his negligence, Hartman would be liable as much as Bright. The question is difficult, and we are compelled to decide it upon a fair and liberal construction of the contract, having regard to how the work was being done and the object and purpose for which the contract was made. We think that in carrying on this work he was doing what was contemplated at the time this paper was signed — that is to say, the materials were being hoisted by the steam hoisting apparatus, and that the employes of Mr. Bright would be engaged in and about that business ; it was a part of the work which was being carried on; it was within the carpenter work of Bright, at least, that all his material should be carried up and his plastering and carpenter work, by a hoisting apparatus of that kind. Now, did he forfeit his right to protection under the policy by the fact that under this arrangement which he had made for convenience and economy, that they were engaged in hoisting up some material also for Hartman and that they joined together in paying for the running of the engine and in paying the engineer his wages? It seems to us not. It seems to us that this man was, while in this employ, fairly and justly within the terms of this policy issued to Bright, and that any accident that occurred in and about this work at that point and at the time and place where he was when he was killed was fairly and justly within the terms of the policy and is one that was within the fair contemplation of the parties to be covered at the time the contract was made.

We, therefore, hold that the judgment of the court of common pleas in this matter was correct; and the judgment of that court will be affirmed, but without penalty.


source: Caselaw Access Project

author: DAY, J.

license: Public Domain

text:
    TELEPHONES.
    [Hancock (3rd) Circuit Court,
    December Term, 1902.]
    Norris, Day and. Mooney, JJ.
    Charles H. Macklin, for Himself, et al. v. The Home Telephone Company et al.
    L Rights of Telephone Companies in Streets of Municipalities.
    The franchise or right of a telephone company to occupy and use the public ways of a municipality for the construction of telephone lines along and upon such public ways, by the erection of the necessary fixtures for the necessary wires, in this state, is conferred directly upon such company from the sovereign state by legislative enactment, contained in Title 2, Chap. 4. Rev. Stat., embracing Secs. 3454 to Sec.'3471-8, inclusive, and is subject only to the control of the municipal corporation in the proper exercise of its police power, the right to fix. and agree with such company, upon the manner of use thereof, and in the discharge of the duty imposed by Sec.' 2640 Rev. Stat., to cause the said public ways “ to be kept open, in repair and free from nuisance.” Therefore—
    t. Municipality Cannot fix Price for Telephone Service to Telephone Patrons.
    A municipal corporation is destitute of power to fix a price to be charged for telephone service by such company; and is possessed of no beneficial interest in the said public ways that is or may become the subject of barter ; or, that will supply a consideration, either valuable or good, to sustain an agreement with such company fixing the rate it may charge for such service, and such an agreement is void for want of consideration.
    g. Fraud — Estoppel—Reasonable Charge — Injunction.
    Tt is the duty of the council of a municipal corporation to agree with a telephone company, requesting it, fixing the manner of use of its pubi c ways, ■without compensation or subsidy; aud while it is not commendable, or to be countenanced, to mislead the council of a municipality into \the discharge of a plain duty, that of fixing the manner of use of its public ways by a telephone company, yet if the municipality is not thereby induced to part with something of value and is not injured in any way, and the party guilty of misleading, derives no substantial benefit from the transaction, other than such as would result from a proper discharge of such plain duty, no legal fraud is practiced ; there is no element of estoppel in the case, and injunction, will not lie to prevent a just and reasonable charge for telephone service within such municipality. '

      Appeal from court of common pleas of Hancock county.
    Reed Metzler, for plaintiffs and the city of Findlay.
    John Poe, J. B. Waight and W. L. Cary, Jr., for telephone company.
   DAY, J.

The plaintiff, Charles H. Macklin, brings this suit in his own name, for himself and numerous other persons similarly situated and having like interests with himself. The Home Telephone Company of Findlay and the city of Findlay are made defendants; and the action is to enjoin the telephone company, which is a corporation owning and operating a telephone plant in said city, from charging plaintiff and others a rate of more than one dollar per month for residence phones, and from removing phones from the residences of plaintiff and others, because of their refusal to pay more than a rate of one dollar per month for such service; that sum, $12.00 per year, being the maximum rate of charge for residence phone service permitted to said company by the provisions of an ordinance, duly enacted and published, by the council of said city; the provisions of which ordinance, it is averred, were accepted by the said company and acted upon in the construction of its said plant, the transaction constituting a solemn contract between the said city and said company, valid and binding on said company.

The right to an injunction in the case is based on the averments that the said company is demanding payment for such telephone service at a rate of $18.00 per year or $1.50 per month, and is threatening to, and will remove phones from the residences of plaintiff and others, and will refuse them telephone service altogether, unless they will pay at the rate of $1.50 per month for each phone, and will deprive them entirely of telephone service, although they are willing and have offered to pay therefor, one dollar per month as provided by said ordinance. It is also alleged that the said company is discriminating between plaintiff and others and against plaintiff by charging others only $12 per year and refusing such rate to plaintiffs to their great damage. The prayer is that said company be enjoined from discontinuing telephone service, from removing said phones from plaintiffs’ residences and from charging more than twelve dollars per phone, per annum.

The city of Findlay, named as defendant, takes up the cudgel for the plaintiff, and has filed an answer and cross-petition adopting all and singular the averments of the petition as true, and then proceeds with particularity to show that the said telephone company was organized for the purpose of constructing and operating a telephone exchange for the city of Findlay; that it made application to the city for a franchise for that purpose and by its agents prepared and presented to the city council the ordinance which was later passed, and procured its passage, granting to the said company the right to construct such exchange by setting poles and stringing wires and occupying the streets and public places of the city for the purpose of building and equipping such exchange, that it was expressly agreed by said company, as a condition of the passage of said ordinance, that the price for residence telephone service for regular patrons residing in the city, should not exceed $12.00 per year, and such stipulation and agreement was by said company incorporated into and made section 3 of said ordinance, that said ordinance was accepted and all its terms agreed to, by said company, and the said exchange was* constructed with especial reference to said ordinance and agreement as to rate of charges; and all this under such circumstances of inducement as estops the said telephone company to deny or refuse to perform its contract; that contrary to and in violation of said ordinance and agreement the said company is charging many of its patrons $18 per year and has removed phones from the residences of many patrons, residents of said city, for refusal to pay said rate, and are thereby depriving many residents of said city of residence telephone service, on the sole ground that they decline to pay therefor more than $12 per year. The city prays an order that the telephone company specifically perform its contract, and also injunction as prayed by the plaintiff.

The telephone company makes answer to the' petition of plaintiff and the cross-petition of the city of Findlay, admitting many things alleged, and denying many others. It also makes some statements of fact in avoidance, or rather defensive to the statements made against it, all of which are put in issue by a reply. The company especially denies that it has or proposes to discriminate against any member of the public in favor of any other member, in the rate of charges for its telephone service; denies that it has threatened or is now threatening to refuse to perform and fulfil any or all of its contracts with individuals, firms or corporations for telephone service, and asserts the contrary; denies that it accepted the provisions of the ordinance as to the rates for telephone service fixed therein, especially as to the rate of $12 per annum fixed for residence telephone service; avers that said rate is unfair, unjust and unreasonably low, and that such service cannot be supplied at said rate without loss to the company; avers that the said city has, and had, no right or power to fix the price the defendant company may demand and receive for its telephone service in said city; denies that it made any contract or agreement with the city, or with patrons and residents of the city, for the supplying of telephone service at $12 per annum that it has »ot and will not fully perform, and denies all claim of estoppel.

The conceded and established facts, as developed on trial, are substantially as follows: The company was incorporated and organized for the sole purpose of constructing and operating a telephone exchange in the city of Findlay. It applied to the proper city authorities for leave to occupy the public places, streets, etc., of the city for the purposes of its plant, and requested an agreement fixing the manner of use of said streets and public places. The council, for a number of weeks, omitted to do this, defeating an ordinance for that purpose, by a two-thirds vote, on three different occasions, and until a provision fixing a maximum price for telephone service, to be charged by the said company, was incorporated into the ordinance, when it was passed into law and fixed the manner of use of the streets of the said city by the defendant telephone company. This last-named ordinance was prepared and presented to the city council by an agent or agents of the telephone company, and its enactment urged by such agents; and under the provisions of that ordinance the said telephone exchange was constructed and the streets, alleys and public places of the city occupied and used by the company. Some two hundred contracts for residence telephone service were made with residents, at the rate of $12 per annum, as fixed by the said ordinance.

After all this the said telephone company determined not to construct a plant as Originally intended, and made a change in its plans and in its system, necessitating a greatly increased expense in construction and in operating, and determined not to build a plant at all unless it could procure not less than 800 contracts of patrons for residence telephone service at a rate of not less than $18 per annum, per phone. The determination not to construct a plant, except upon the conditions named, was published throughout the city and the result was that some 800 residents of the city entered into contracts with the company for residence phones at the rate of $18 per year, and the telephone plant was thereupon constructed in the mode, as to the occupancy of the streets and public ways, provided by the ordinance, with the improved and more expensive appliances last determined on by the company, and especially upon the consideration of the eight hundred contracts of resident patrons to pay $18 per year for residence. phone service. The contracts for $12 per year, and as well the contracts at $18 per year, have been and are being carried out strictly. However, as fast as the $12 contracts expire by their own terms, and as to all new contracts for residence telephone service offered, the company declines to contract for or furnish such service at a less rate than $18 per year, or $1.50 per month.

The difference in the sum charged for residence telephone service on the two hundred $12 contracts and the eight hundred $18 contracts constitutes the only discrimination between patrons that'has been practiced by the defendant company.

The facts appearing would seem to relieve the defendant telephone company from the charge of willful wrongdoing and contemplated and threatened wrongdoing to the 'damage of the plaintiffs and the city of Findlay, contained in the petition and the cross-petition of the city; unless the provisions of the ordinance settling the manner of use of the public ways of the city, which fixes a price for residence telephone service at not more than $12 per year, was authorized by law and was,.therefore, the proper and valid exercise of power by the city council; or, unless the said provisions fixing the maximum rate of charge for such service at $12 per year was procured by the defendant company under such circumstances and upon such considerations as make it a valid and enforceable contract between the city and telephone company which the company is estopped to deny.

As to the first proposition — The power of a municipality to fix the price of telephone service:

The franchise or right of a telegraph or telephone company to occupy the public streets and alleys of a municipality and use the same jor the purposes of “ constructing lines from point to point, by the erection of the necessary fixtures, including posts, piers and abutments necessary for the wires,” is derived directly from the sovereign state by legislative grant contained in Sec. 3454 Rév. Stat., et seq., to be found in Title 2, Chap. 4, under heading, “Magnetic Telegraph Companies.” This right of use is absolute and subject only to the easement or right of the public to use the same public ways for public purposes, and the mode or manner of use by the company must be agreed upon between the municipal authorities and the company, and failing, that “ the probate court shall direct in what mode a line shall be constructed along such street, alley, or public way, so as not to incommode the public in the use of the same,” etc. See Sec. 8461 Rev. Stat. The right of use of the streets and public ways by the telephone company is wholly beside and independent of the municipality, and, of course, is to be enjoyed like any other right, without let or hindrance from the municipality, except in the proper exercise of its police power and the efficient discharge of the duty imposed upon it by the provisions of Sec. 2640 Rev. Stat., to ‘ ‘ keep the streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation open and in repair, and free from nuisance.” Power to discharge the duty imposed by Sec. 2640 Rev. Stat., in connection with the construction of a telegraph or telephone plant is given by Sec. 3461 Rev. Stat., and is expressly limited to an agreement fixing the mode of use of the streets and public ways; and it would seem that the city’s whole*duty, in connection with the building of a telephone plant, is performed and its power in that behall is exhausted, when it allows the company to use and occupy the public ways of the city with its “ posts, piers and abutments” and other necessary appliances in the construction of its plant, in a mode of use agreed upon between the city and such company. No further or additional power is expressly given the council in this connection; nor do we think other power is clearly implied or in any sense necessary to the proper exercise of'the power of police or the duty to keep the streets open in repair and free from nuisance. There appears to be nothing in the constitution or the laws made in pursuance thereof that confers upon the council of the city power to fix the price of telephone service in the city of Findlay. We think the city, under the law of this state, has no more right or power to set a price on telephone service than it has to regulate and fix the price of dry goods, groceries or other commodities in the same city. Perhaps the legislature of Ohio might coufer such power on a municipality, but it has not done so, and the city is destitute of power in that respect.

The views and cbnclusions here indicated are supported and enforced by a number of decisions of courts of last resort, in several states, where, as in this state, the right of occupancy and use of the public ways of a municipality is conferred directly by legislative grant, aside from and independent of the municipality. Notably so in Wisconsin. State v. Sheboygan, 86 N. W. Rep. 657 (111 Wis. 23) ; Marshfield v. Telephone Co., 78 N. W. Rep. 735 (102 Wis. 604).

The remaining question, Did the defendant company enter into a contract with the city, providing for residence telephone service within the city, at a rate of $12 per year, under such circumstances and upon considerations that makes it a valid enforceable contract, estopping the company to deny or avoid it, is one of more difficulty.

There is a line of cases, and they are not at all uncommon, in which it is held, and no doubt correctly, on the facts and conditions present, that where a municipality, by ordinance duly enacted, has granted to a telegraph or telephone company the right to occupy and use its streets and public ways and has fixed and settled the manner of such occupancy and use, and the privileges thereunder granted are accepted by the company and acted upon, the grant and acceptance becomes a binding contract between such company and the municipality, the obligations of which cannot be avoided or impaired. Kansas City v. Corrigan, 86 Mo. 67; People v. Telephone Co., 61 N. E. Rep. 428 [192 Ill. 307] ; Allegheny v. Railway Co., 28 Atl. Rep. 202 [159 Pa. St. 411]; Mutual Union Tel. Co. v. Chicago, 16 Fed. Rep. 309, and others. These holdings, however, are in cases and under state laws, where the sovereign powers of the state have, in a large sense, been delegated to municipalities, granting them general power over and almost absolute control of their streets, alleys and public ways; and the adjudications are, therefore, not even of persuasive authority in this state, but are rather to be regarded as a fairly strong argument to the contrary. In the cases last named, the municipality, by virtue of delegated powers and legislative grant of general control over its streets, had something to confer — the right to use its streets, which would answer as a consideration for an agreement of the company to give telephone service at a stipulated price. A.S is said in one case:

“In such cases the municipal corporation is to be regarded as a subordinate agency of government for the administration of local affairs, which the legislature, in its discretion, has invested with the powers and prerogatives necessary to a complete government of its own affairs.’’

In such case the rights obtained from such municipality, by a telegraph or telephone company, would be very valuable and would likely be a good consideration for any reasonable promise or agreement, as to rates to be charged for telephone or telegraph service, or in other regards, that such company might make. Not so, however, in this state, or in any state where the right of use of the public ways is given direcily to the company from the sovereign by express legislative grant, and there is only given to the municipality the power of police and the right to agree upon and fix the manner of such use, which right is not exclusive, but is shared by the probate court, and is only in furtherance of the municipality’s plain duty, to keep the public ways “ open in repair and free from nuisance.” Neither the police power nor the right to fix the manner of use, is the subject-matter of barter, and both must be exercised exclusively in the interests of the public, for the public goon and public welfare, and not for public gain, and most certainly not for such financial advantage as might arise and inure to only a small portion of the public. So, if we are correct thus far, it would seem to follow, that, in Ohio, a municipality has no valuable right to confer on a telephone company ; nothing, in fact, that the law would regard as a consideration either valuable or good, to support a contract between the telephone company and the city, fixing a rate of charge for telephone service, and if the rate stipulated is to be sustained and enforced, it must be upon considerations, other than the conferring of a valuable right upon the ■'Nephone company to occupy and use the streets and alleys of the city ; and upon some theory or doctrine of estoppel rather than contract.

It is likely if the defendant telephone company, by indirection and deceit, acquired some valuable concessions, not belonging to it as matter of right, the city authorities being misled and induced to grant such concessions by the company’s agreement and promise to give telephone service at the low rate of $12 per year, such promise and agreement, might, with propriety, be enforced on the ground that the telephone company having profited by its wrong, is estopped to deny the wrong, or omit to perform the promise by which it secured a benefit to itself.

If such condition and promise is made apparent from the facts adduced the court will not be reluctant or slow in enforcing the agreement or in requiring full performance of the promise; for it is not believed to be good policy for the courts to decline to take notice in such case and thereby allow a wrongdoer to realize a profit from wrongdoing. But in this case, (rom a careful examination and analysis of the facts appearing, we are compelled to the conclusion that the claim of deception and misleading of the city authorities to its injury and to the benefit of the telephone company is not well founded, and that there is scarcely an element of equitable estoppel, or estoppel by conduct, suggested by any evidence to which our attention has been directed, but somewhat to the contrary.

If, as we have seen, the telephone company had the right to use the streets, alleys and public places of the city direct from the state, and independent from the city, then, on request of the company, it become the duty of the city, in the interests of the public and the requirements of Sec. 2640 Rev. 3tat., “ to keep the streets open and free of nuisance;” to promptly settle and fix the manner of such use. The city authorities did not do this promptly, or at all, until induced thereto by the telephone company by artifice. The city council procrastinated and delayed the matter unreasonably. An ordinance defining and fixing the manner of use, but without a provision fixing a rate of charges for residence telephone service, was defeated with emphasis, on three different occasions, causing a delay of several months. In this situation, and being unable to agree on the manner of use, the telephone company could have taken the matter into the probate court and had the method of use fixed there, and thus got away from the council entirely. It, however, did not see proper to do this; but instead, adopted and resorted to a different scheme or device. It prepared an ordinance not only fixing the mode or manner of use, but also fixing a rate of charge for telephone service for residences of $12 per year, and procured its passage by the council into a law. The conduct of the company’s representatives in the transaction was such as to leave the impression that they were willing to mislead the council, and so accomplish their purpose by indirection. The company does not appear to be altogether innocent and artless in the matter, and its attitude and conduct is not to be commended or approved ; neither is it to be utterly condemned as wholly indefensible. I suppose, on occasion, innocent artifice may, to an extent, be indulged in, if the only purpose is to procure from an official body the prompt discharge of a palpably plain duty, and there is no ulterior motive involved and no misleading of such body to the loss or injury of the public or to the undue benefit of the party employing such artifice. In such case the results being good may be availed of, while we must deplore the means by which the results were obtained. In this case it was to the interest of the public that the council fix the mode of use of the streets, by the defendant telephone company, in such way as to least encumber and obstruct the free use thereof by the public; and it was the duty of the council to so fix the mode of use without recompense or subsidy, and a proper discharge of that duty seems to be all that was accomplished by the telephone company’s ruse.

The provisions of the ordinance were not formally accepted by the company even as to the manner of use, although in that .respect the provisions were in fact accepted; but as to the provision fixing a rate of charges that was never accepted or acted upon, but was distinctly repudiated. Indeed, in that regard,- it is made to appear by the evidence that the defendant company retired from the conference and determined not to construct a telephone plant at all, unless allowed to charge a rate of $18 per year for residence telephone service, and unless it could secure at least 800 contracts at that rate. This determination was proclaimed throughout the city and was generally known to the people of the city, and must have been known to at least some of the city officials ; and was acquiesced in and assented to. Eight hundred contracts for yearly service at $18 per year were obtained from citizens, whereupon the construction of a plant was proceeded with and not before. This fact makes in favor of the telephone company and relieves it, in some measure, from the opprobrium, if any there was, attaching to its conduct in connection with the passage of the ordinance fixing the mode of use and a rate of $12iper year.

So, upon a consideration of the whole case, and inasmuch as neither plaintiffs nor the city parted with anything of value ; and were' not induced to place themselves in a position involving loss or expense to relieve the situation, and the defendant company did not secure more than' its legal rights, we do not perceive any elements of estoppel, either equitable or by contract, in the case, and so conclude there is no merit in the contention of the plaintiffs or the city of Findlay, and the petition and cross-petition are dismissed at costs to the plaintiffs and the city.

Judgment may be entered in accordance with the views herein indicated.

MOONEY and NORRIS, JJ., concur.


author: HULL, J.

text:
    COUNTY AUDITOR — COMPENSATION.
    [Lucas (6th) Circuit Court,
    February 16, 1903.]
    Haynes, Parker and Hull, JJ.
    State ex rel. v. William M. Godfrey.
    1. Compensation of County Auditor for Collection of back Taxes.
    Section 1343a Rev. Stat., providing for the employment of tax inquisitors in certain counties, does not repeal or modify section 1071, which relates to the fees of county auditors, and a county auditor is entitled to four per cent, of the amount of the tax collected and paid into the county treasury on property omitted and placed by him on the tax duplicate, notwithstanding the' fact that an inquisitor employed under Sec. 1343a Rev. Stat. aided him in these matters.
    8. Compensation for Indexing Records of Commissioners.
    Under Sec 850 Rev. Stat., which provides for the indexing of the records of the board of county commissioners by the clerk thereof, the county auditor is entitled to receive for such acts the same fees as other officers receive for like services.
    S. Compensation eor Extra Clerk Hire not Confined to Year of Decennial Appraisement.
    Section 1076 Rev. Stat., which provides for an additional allowance to the county auditor for clerk hire “ during the years when real property is required by law to he reappraised ” is not limited in its operation to the year in which such reappraisement is actually made, but covers so much of the following years as may be necessary for the action of the various boards of equalization, subject to the limitation of the statute requiring such proceedings to be completed by the fourth Monday in January of the second year following the reappraisement.
    4. Construction of Sec. 1076 Rev. Stat.
    Whether the words “ preceding sections,” in Sec. 1076 Rev. Stat., relate not only to Secs. 1067 and 1070- Rev. Stat., but also to Secs. 850,1074 and 1075-Rev. Stat., quaere.

    Heard on Error.
    C. E. Sumner, prosecuting attorney, and W. H. A. Read, foi plaintiff in error.
    Brown & Geddes, for defendant in error, cited:
    The method provided by Sec. 1071 Rev. Stat., for compensating the auditor for causing omitted property to be listed for taxation, was sustained in Probasco v. Raine, 50 Ohio St. 378 [34 N. E. Rep. 536]; Hickox v. Shields, 55 Ohio St. 681 [48 N. E. Rep. 1113].
    It is the duty of a county auditor to act under Secs. 2781 and 2782 Rev. Stat., whenever he is “informed or has reason to believe” that property has been improperly omitted from the tax duplicate of the county. If he declines to act upon reasonable information, a petition in mandamus, by a relator who seeks to compel him to act, is sufficient, if it state facts showing that there was reason to believe that property had been improperly omitted from the tax duplicate. State v. Crites, 48 Ohio St. 142 [26 N. E. Rep. 1052].
    A county auditor may be compelled-by mandamus to act under Secs. 2781 and 2782 Rev. Stat., but his discretion as to what testimony he will consider or what conclusion he will reach is not subject to control. State v. Crites, 48 Ohio St. 460 [28 N. E. Rep. 178]. ■
    As repeals by implication are not favored, the repugnancy between the provisions of two statutes must be clear, and so contrary to each other that they cannot be reconciled, in order to make the latter operate a repeal of the former. State v. Dudley, 1 Ohio St. 487, 441; Cass v. Dillon, 2 Ohio St. 607, 610.
    Acts upon the same subject are to be construed as a whole with reference to an entire system of which all are parts. The presumption being against indirect appeal, the courts will endeavor to harmonize the several parts, and where the statute has made no exception, the courts will make none. Eggleston v. Harrison, 61 Ohio St. 397, 404 [55 N. E. Rep. 993],
    , Proceedings before a county auditor for the correction of false returns made by the owner of taxable property, are not governed by the precise rules of the code of civil procedure. A certified copy of the inventory of the estate of a deceased person filed by the executor in the probate court, is competent evidence to show omissions in the returns of the deceased, and, in the absence ot anything to the contrary, may warrant the auditor, in making additions. Gager v. Prout, 48 Ohio St. 89 [26 N. E. Rep. 1013],
    The county auditor is the clerk of the board of county commissioners, the words “secretary” in section 1021 and “clerk” in section 850 being synonymous. Jones v. Rucas Co. (Comrs.), 5 Circ. Dec 152 (11 R. 136).
    It is true that the rates for indexing vary from four cents for each cause in the appearance docket and bar calendar index to filteen cents in costs and eight cents from the county treasury, a total of twenty-three cents in the judgment index. But see Clark v. Rucas Co. (Comrs.), 6 Dec. 145 (4 N. P. 39), affirmed by this court, Clark v. Rucas Co. (Comrs.), 7 Circ Dec. 427 (14 R. 349), and by the Supreme Court, Clark v. Rucas Co. (Comrs.), 58 Ohio St. 107 [50 N. E. Rep. 356],
   HULL, J.

This action was brought in the court below, State v. Godfrey, 13 Dec. 535, by the prosecutor in the name of the state of Ohio to recover certain sums from the defendant, William M. Godfrey, which, it was claimed, he had illegally drawn as auditor of Lucas county. There were five causes of action in the petition. An answer was filed to the petition, setting forth separate defenses to each cause of action. A demurrer was filed to each defense in the answer. The court of common pleas sustained the demurrer to the defenses to the first and fourth causes of action, and overruled the demurrer of the plaintiff to the defenses to the second, third and fifth causes of action. Subsequently, the plaintiff dismissed the fourth cause of action of its petition, and the parties not pleading further, judgment was then entered in the court of common pleas upon the first, second, third and fifth causes of action, in accordance with the ruling on demurrer.

The court below held, in passing upon the demurrer to the defenses to these separate causes of action, that a cause of action was not stated in either the second, third or fifth causes of action in the petition, and, therefore, the demurrer to the answers to these causes of action was overruled, which in effect was the same as sustaining a demurrer, had one been filed, to these various causes of action in the petition, and judgment was entered in favor of the defendant upon them. A petition in érror was filed in this court to reverse the judgment of the court of common pleas as to these three causes of action. These causes of action must be considered separately.

The second cause of action in the petition is to recover $2,768.91 upon bills presented by the county auditor for placing upon the tax duplicate of the county certain omitted properties and levies for taxes. The cause of action as set forth in the petition is as follows:

“ That in the year 1900 the said William M. Godfrey drew out of and withheld and Still withholds from the county treasury the sum of $2,768.91 upon certain bills presented by him for services rendered in placing upon the tax duplicate, of said county certain properties and levies for taxes furnished by the tax inquisitor, a 'person employed by authority of Lucas county to furnish said information, and who was duly paid therefor by said county of Lucas out of said county treasury; that said bills were illegally presented, and there was not and is no authority at law for the allowance ot the same or the drawing out of the money for the payment thereof, or for the withholding of the same from the said county treasury, and the state of Ohio should recover thereon from said William M. Godfrey the sum of $2,768.91.”

This cause of action thus stated, and the answer to it, raises the question as to whether the auditor is entitled to four per cent, for placing omitted property upon the tax duplicate for taxation in counties where a tax inquisitor has been employed to aid him and furnish him with evidence in the performance of his duty, the tax inquisitor being paid a percentage by the county. The court of common pleas held, in passing upon the demurrer, that this cause of action as stated in the petition, did not constitute a cause of action against the defendant. The section which allows the auditor fees for such services is Sec. 1071 Rev. Stat., which provides:

“ In addition to the compensation specified in the two preceding sections the auditors of the several counties shall receive the compensation provided by law for their services as members of the boards for listing railroads, and under the school laws, and as county sealers, and in filing away statements of taxable property, and also four per centum of the amount of tax collected and paid into the county treasury [on property], omitted and placed by them on the tax duplicate.”

This was passed June 3, 1871, and is found in 76 O. L,. 117.

The statutes relating to the auditor’s powers and duties m t) placing property upon the tax duplicate and his powers in regard to summoning persons before him in his investigations, and procuring evidence, are Secs. 2781, 2781a, 2782 and 2783 Rev. Stat. These sections make it his duty to act in the matter of omitted property or false returns, and give him power to summon witnesses before him to testify in any investigation made by him. The general act relating to the employment of tax inquisitors in Sec. 1343-1 Rev. Stat. The act under which the tax inquisitor was employed in this county is Sec. 1343a Rev. Stat., and is as follows:

“ That the county commissioners, county auditor and county treasurer, or a majority of said officers of any county in this state containing a city of the first class, and in any county containing a city of the first grade of the second cl'ass, shall have full and final power to employ any person or persons to ascertain and furnish to the county auditor the facts and evidence necessary to authorize him to subject to taxation any property improperly omitted from the tax duplicate; no payment for such services to be made except in accordance with the terms of an agree, ment between the said officers, or a majority of them, and such person or persons; and such payment shall be made to such person or persons only out of money actually paid into the county treasury as taxes on such omitted property ; and such compensation shall be apportioned ratably by the county auditor among all the funds entitled to share in the distribution of such taxes, including the state itself, as well as the counties, townships, cities, villages, school districts, and other organizations entitled thereto.”

The claim is that in counties where an inquisitor is employed and paid for furnishing the evidence to the auditor, the auditor is not entitled to the four per cent, on omitted property which he places upon the tax duplicate, as was allowed and paid in this case.

There is no reference to the inquisitor statutes in Sec. 1071 Rev Stat., which provides for the payment of this percentage to the auditor^ so that there is no express repeal of that provision or exception, where inquisitors are employed, but it is urged that’the inquisitor performs all of the duties, when he is employed, which the auditor is required to perform in the premises, and therefore that the auditor should not have and is not entitled to any compensation; that the inquisitor takes the place of the auditor; that he procures the property to be placed upon the tax duplicate, and that the auditor has nothing to do except to perform the clerical act of entering the property upon the duplicate; and that therefore the inquisitor is the only one who is entitled to pay for the services in such cases.

The powers and duties of the auditor in this matter have been before the Supreme Court in one or two cases. It has been held that the auditor in this matter acts not entirely in a ministerial capacity; that his duties are of a quasi judicial character; that it is his duty to hear the evidence that may be offered before him; .that the taxpayer himself may appear and give his own evidence and any other evidence that he may see fit to offer; that evidence may be offered upon the other side; and that in the end, after all the evidence is in, it is the duty of the auditor to act in a quasi judicial capacity and to determine the question whether the property should be subjected to taxation and placed upon the tax duplicate or not.

His compensation for these services, under Sec. 1071 Rev. Stat., does not depend upon the actual amount of labor which he performs or the volume of testimony which he considers in performing this duty, but depends upon whether in the end he puts the property upon the tax duplicate, and whether finally taxes are collected upon that property and paid into the county treasury. In the case of State v. Crites, 48 Ohio St. 142 [26 N. E. Rep. 1052], the Supreme Court held that if an auditor refused to act in a case of this kind where evidence was offered him tending to show that a taxpayer had omitted to return property, he might be compelled by a writ of mandamus to act. The court say in the third paragraph of the syllabus:

It is the duty of a county auditor to act under Secs. 2781 and 2782 Rev. Stat., whenever he is informed or has reason to believe that property has been improperly omitted from the tax duplicate of the county. If he declines to act upon the reasonable information, a petition in mandamus, by a relator who seeks to compel him to .act, is sufficient, if it states facts showing that there was reason to believe that property had been improperly omitted from the tax duplicate.”

The auditor in this case acted in obedience to the writ, and required Mr. Brice to appear before him. The relator in the case was the tax inquisitor of Allen county. The auditor heard the evidence furnished by the relator, and also took the testimony of Mr. Brice himself, and perhaps other testimony offered in his behalf, and then acted, as he claimed, according to his own judgment and discretion in placing property upon the tax duplicate. The inquisitor not being satisfied with the action of the auditor, filed a motion in the Supreme Court to attach him for contempt of court, and set forth his various grounds of complaint. This motion was denied, and the Supreme Court say in the third paragraph of the syllabus of the case, State v. Crites, supra:

“ The remedy by mandamus, while appropriate to compel an officer to proceed in a judicial or quasi judicial matter confided by law to his jurisdiction, cannot be invoked to correct his errors, or control his discretion.”

And in the opinion, which was delivered by Judge Bradbury, on page 464, the court say:

“ The first clause of the motion seems to assume that the peremptory writ commanded the respondent to conduct the investigation upon the evidence submitted to him by the relator. This is not correct. An examination of both the peremptory writ and the opinion delivered in the case, will not disclose any purpose in this court, when it awarded the writ, to prescribe to the respondent the evidence he should consider when making the investigation. It commanded him to proceed in the matter, but left his discretion untrammeled, not only as to the testimony he should consider, but also as to the conclusion he might reach.”

On page 415 of the opinion this is found:

“ The respondent was acting in a quasi judicial capacity; he had assumed jurisdiction and entered upon the investigation; the law imposed upon him the duty of hearing and weighing evidence and rendering a decision upon it. This, necessarily, involved the exercise of judicial discretion.”

The court finally overruled the motion and discharged the rule at the cost of the relator, and held that while the court might compel the auditor to act in the premises, it could not tell him how to act, nor could his errors of judgment be reviewed upon a motion for attachment for contempt of court.

In Probasco v. Raine, 50 Ohio St. 378 [34 N E. Rep. 536], the court held, as laid down in the syllabus:

“ The fee of four per centum to county auditors, provided for by Sec. 1071 Rev. Stat., does not disqualify such auditors from performing the duties, and exercising the powers imposed on them by Secs. 2781 and 2782 Rev. Stat

And in discussing the question Judge Burket in the opinion, on page 391,says:

“ To have equality in taxation, all property must be brought upon the duplicate. Some officer must be authorized and empowered to cause all property to be listed for taxation. Such officer must be paid for his services, either by fees or salary. The legislature has full power under the constitution to say what officer shall perform such duties, and in what manner he shall be paid.
“ It was enacted that such duties shall be performed by the auditor, and that he shall be paid as provided in Sec. 1071. In the opinion of the legislature this is a proper means to attain, in part at least, equal taxation. It matters not whether the auditor acts judicially or ministerially in the discharge of his duties. The legislature is free to employ such means, as in its opinion, shall be most effective, whether they be judicial or ministerial, or both.”

Further along on this page the court say:

“ A probate judge acts judicially in the appointment of guardians and administrators, and receives a fee for each appointment, and yet such fee does not disqualify him from acting in the premises.”

Attention is called to these decisions of the Supreme Court to show in what capacity the auditor acts, and that in the opinion of the court he is paid, and properly paid, for sitting in this quasi judicial capacity, and determining whether property shall be placed upon the tax duplicate or not. As they say, whether it is a judicial act or a ministerial act, he is the tax officer of the county, and it is proper that some officer should perform this service, and proper that his compensation should be provided for by the legislature. As already said, his compensation does not depend upon the amount of labor that he performs in any given case.

In the case of Gager v. Prout, 48 Ohio St. 89 [26 N. R. Rep. 1013], the only evidence before the auditor was a certified copy of the inventory filed by the executor of the estate of a deceased person. The court held, in the fourth paragraph of the syllabus, that in the absence of anything to the contrary that was sufficient to warrant the auditor in making the additions.

The tax inquisitor acts in an altogether different capacity. He exercises no judicial functions. He does not determine whether the property shall go upon the tax duplicate and be subject to taxation or not. He is employed to assist the auditor in procuring evidence in investigations of this kind; employed to furnish the auditor with evidence of omitted property; as stated in the statute, “ To make inquiry and furnish the county auditor the facts as to any omissions of property for taxation, and the evidence necessary to authorize him to subject to taxation any property improperly omitted from the tax duplicate.” He is an officer authorized by law and whose duty it is to aid in bringing omitted property upon the tax duplicate by furnishing evidence. As was held by the Supreme Court, the auditor is not required to rest upon the evidence or facts furnished by the inquisitor; he may make further investigation. If he is not satisfied that the evidence of the inquisitor is sufficient, he may procure further evidence, if possible, to warrant him in placing property on the tax duplicate, or as in the Brice case, State v. Crites, supra, he may call the property owner himself before him, and interrogate him, and procure evidence from whatever source he desires and when the evidence is all in, that furnished by the inquisitor as well as that coming from other sources, the auditor in all cases exercises his own judgment, and he himself, if that action is taken, in the end, places the property upon the tax duplicate.

In our judgment the court of common pleas was right in holding that no cause of action was stated in the second cause of action of the petition; that the inquisitor statute does not repeal or modify by implication Sec. 1071, Rev. Stat., which relates to the fees of the auditor; that the auditor is still entitled to his four per cent, notwithstanding the fact that an inquisitor was employed and aided him in these matters. Repeals by implication, it has been said by the Supreme Court of this state, are not favored. State v. Dudley, 1 Ohio St. 437, 441 — an opinion by Judge Ranney:

“ As repeals by implication are not favored, the repugnancy between the provisions of two statutes must be clear, and so contrary to each other that they cannot be reconciled, in order to make the latter a repeal of the former. This rule is the result of a loug course of decisions, and we know of no reason why it does not equally apply, when the repugnancy is alleged to exist, between a constitutional provision and a legislative enactment.”

This question was before this court in a case in Williams county, an unreported case, and the opinion was not preserved. Had it been reported, it would not have been necessary to' have discussed this question as fully as it has been considered here, if at all. The case is Hamet v. Marshall. The court held in that case, after full argument, where the facts were the same as they are here, that the auditor was entitled to his four per cent. We therefore find no error in the judgment of the court of common pleas in its action in regard to this cause of action.

The third cause of action was also held by the court of common pleas not to constitute a cause of action against the defendant. It is as follows:

“That in the year 1900 the said William M. Godfrey drew out of and withheld from the county treasury the sum of $200 on account of a bill presented for indexing the journal and minutes of the board of county commissioners for the preceding year; that the said money was illegally drawn out of and withheld and is now withheld from the said county treasury without any warrant of law, and the said state of Ohio should recover from said William M. Godfrey, to be returned into said treasury of Tucas county thereon, the sum of $200.”

An answer was filed to this cause of action and a demurrer filed to that answer. The court, however, held as to this cause of action, as in the former, that the demurrer to the answer searched the record, and that this did not constitute a cause of action against the defendant. The cause of action with the answer filed to it raises the question whether the auditor is entitled to compensation for indexing the journal and minutes of the commissioners. His claim is based upon Sec. 850 Rev. Stat., which provides:

“ The clerk shall keep a full and complete record of the proceedings of the board, and a general index thereof, in a suitable book provided for that purpose. * * * And in counties where no index has been made of such record, the commissioners thereof are hereby authorized to cause an index to be made of such past records for such period of time subsequent to the first day of January, A. D. 1880, as the judgment of the county commissioners may determine; and the clerk shall receive for indexing, provided for in this section, such compensation as is provided for .like services in other cases.”

There is no provision in any “ other case” or in any other statute for giving the auditor compensation for indexing, and it is therefore urged by counsel for plaintiff in error that there being no “ other cases ” lor an auditor to perform like services, that this is equivalent to allowing no compensation, and therefore that the auditor should have no compensation for this service.

It is urged upon the other hand that this should be construed to relate to the cases of other county officers who keep similar indexes, and that the auditor should have a reasonable compensation, according to the allowances given to other officers for keeping such or similar indexes. There are many county officers that are paid under the statutes for keeping such indexes. The sheriff, under Sec. 1212 Rev. Stat., receives ten cents for indexing; the clerk of courts, under Sec. 1257 Rev. Stat., receives fifteen cents a piece for indexing, and under afhother section for a different kind of indexing, eight cents. Section 1188 Rev. Stat., provides that the county surveyor for a portion of his services shall receive “ the same fees as those of other officers for like services.” Under Secs. 1155 to 1157 the county recorder is allowed ten cents for indexing. So that it appears there are many cases where county officers do receive pay under the statutes for indexing. It seems to us to be clear from the language of this section that it was the intention of the legislature that the auditor should receive compensation for these services. The language of Sec. 850 Rev. Stat., is that he shall receive for indexing, provided for in this section, such 'compensation as is provided for like services in other cases.”

There is no claim in argument, but it is conceded, that the allowance made in this case was a reasonable one, if any can be made, and not in excess of the amount allowed to other officers for like services. The amount allowed, it is said, was the same as that given the recorder by statute. If the legislature had intended that the auditor should receive no compensation for these services it would have been a very easy matter to have said so, or to have said nothing and let it be covered by his general compensation, because it is not exactly certain'under this statute what he is to receive; but if the provisions of the statute may be enforced and the intention of the legislature carried out, that should be done, and the statute should be construed to sustain it in all of its parts, if it can be so done reasonably, by the courts. As appears from the statute relating to county surveyors, there is a provision there somewhat similar to this, that he shall receive “ the same fees as other officers for like services.” It is not the best way to express a thing of this kind in a statute. It would have been better for the legislature to have stated exactly what the auditor was to receive; but for some reason the legislature did not express it in that way, but left it as it is written. We think that this provision of the statute cannot be disregarded or set aside by the courts, and that the auditor is entitled to his compensation as provided for in this section; and no complaint being made that the allowance made to him in this case was unreasonable or excessive as compared to that given to other officers, we find no error in the action of the court of common pleas in holding that this cause of action in the petition did not state a cause of action against the defendant, and therefore overruling the demurrer to the answer.

The fifth cause of action seeks to recover from the defendant $568.44 drawn from the county treasury in the first four months of 1901, being $142.11 monthly for clerk hire growing' out of work performed in connection with the duties of said office on account of the decennial appraisement. The auditor claims the right to draw this money under Sec. 1076 Rev. Stat., which reads as follows:

“ The county commissioners of the several counties have authority, and are required, to make an additional allowance to the county auditor for clerk hire, not exceeding twenty-five per cent of the annual allowance made in the preceding sections in the years when the real property is required by law to be reappraised.”

The decennial appraisement involved here commenced in the year 1900, and the appraisers were elected and made appraisement in the year 1900. It is claimed by the plaintiff that under this section of the statutes the auditor is not permitted to draw clerk hire except for the year 1900; that by the language of the statute this is limited to that year. He drew also for the first four months of the following year (1901) at the rate of $142.11 a month, in all $568.44. No question is made in the petition as to the amount he drew, but the claim is made that he was not entitled to draw anything. It appears from the answer that was filed to this cause of action and the contrary is not alleged in the petition, that the auditor drew twenty-five per cent, only of the annual allowance provided for in Secs. 1069 and 1070 Rev. Stat., for those four months. The contention is whether the words in the statute, “ In the years when real property is required by law to be reappraised,” apply only to the year 1900, when the decennial appraisers actually appraised the property, or whether they shall apply not only to that year but to the following year, if the whole of that year is necessary for the action of the various boards of equalization and otherwise in completing the appraisement, up to the fourth Monday in January of the year 1902, when the work was required to be finished.

The court of common pleas held on the demurrer to the answer that this cause of action as set forth in the petition did not state a cause of action against the defendant; that this language of the statute covered not only the year 1900, but so much of the following year as might be necessary for the action of the various boards.

The purpose of this section of the statute is evidently to allow the auditor compensation for the additional clerk hire that is imposed upon him by reason of the decennial appraisement of real estate. The statute itself does not provide that this shall be confined to the year when the district appraisers act in the appraisement of property, but it is only confined to the years when the real property is required by law to be reappraised. The action of the various boards subsequent to the action of the appraisers in appraising the property is as necessary to a complete reappraisement and revaluation of the property as the action of the appraisers, and in our judgment the court of common pleas was right in its action in this behalf, and it did not err in holding that this cause of action as set forth in the petition did not state a cause of action against the defendant.

The decision of judge Pugsley, who decided the case in the court of common pleas, was furnished to us, and is full and clear upon all of the questions involved in this case, and from it I will read an extract upon this last question. The various statutes are collected there, and the questions discussed clearly in State v. Godfrey, 13 Dec. 535,546. He says:

“ The sole question, therefore, raised by the petition is, whether, under the law, the commissioners were authorized to allow to the auditor for clerk hire any sum expended in 1901. The language of Sec. 1076 Rev. Stat. is: ‘ clerk hire in the years when the real property is required by law to be reappraised. In what years does the law require the real property to be reappraised?’ I find nothing in the statute which can be construed to requite the reappraisement to be made in the year 1900, or to mean as matter of fact or law that the reappraisement is made in 1900* It is true that the work of the district assessors in valuing the real property was to be performed in 1900. It was to be performed after March 1, 1900, and before the first Monday of July, 1900, when they are required to make their returns to the county auditor. Sections 2789 and 2798 Rev. Stat. But the work of the district assessors does not constitute the decennial appraisement; it is only a part of it. After errors and omissions in the assessor’s returns are corrected by the county auditor, they are then submitted to the decennial county board of equalization and the decennial city board of equalization, who proceed to equalize the valuation in the manner prescribed by law. The county board of equalization was required to convene on the third Monday of July, 1900, and to close its session on or before the first Monday in October, 1900. Section 2813 Rev. Stat., 94 O. L,. 336. The city board of equalization was required to convene on the first Monday of August, 1900, and to close its session on or before the first Monday of October, 1900. Section 2815 Rev. Stat., 94 O. Iy. 337. After the equalization by these boards is completed, the county auditor is required to transmit to the state auditor an abstract of the property with the valuation as returned by the assessors and equalized by said boards. The decennial state board of equalization is then required to equalize the value of the property returned in the abstracts furnished by the several county auditors among the towns and counties in the state. And this board was required to meet on the first Tuesday in December, 1900, and to close its session on or before the first Monday of May, 1901. Section 2818 Rev. Stat., 94 O. D. 337. After the equalization by the state board is completed, it is then the duty of the state auditor to transmit to the county auditors a statement of the per centum as fixed by the state board, to be added to or deducted from the valuation, and it was the duty of the county auditor, on receiving such statement, to proceed forthwith to add to or deduct from each^ tract or lot of land in his county the required per centum. It was then the duty of each of the decennial boards of equalization to meet as a board of revision; the decennial county board on the first Monday of May, 1901, and to close its session on or before the fourth Monday of September, 1901, and the decennial city board to meet on the first Monday of June, 1901, and to close its session on or before the fourth Monday of January, 1902; and the county auditor after that was required to correct the tax duplicate according to the deductions and additions ordered by the board of revision. Section 2814a Rev. Stat., 94 O. L. 247. All these proceedings to which I have referred are an essential part of the decennial appraisement. So that the time in which the real property was required to be reappraised ran all through 1901, and did not expire until the fourth Monday of January, 1902. My conclusion, therefore, is, that the expense of additional clerical help necessarily employed by defendant in 1901, is the proper subject of allowance under Sec. 1076 Rev. Stat. If that view is correct, the petition does not show that the amount drawn by the auditor in 1901 was illegally drawn. . Having reached that conclusion, it is not necessary to consider the other questions discussed by counsel for the defendant.”

We agree with the learned judge who delivered the opinion in this conclusion. This amount of fl42.ll per month drawn by the auditor for these four months was twenty-five per cent, of his allowance as provided for by Secs. 1069 and 1070 Rev. Stat. Section 1076 Rev. Stat., provides, as read, that the granting to the county auditor of not to exceed twenty-five percent, of the annual allowance made in the preceding sections is required to be done.

A question is made as to what is meant by the words “ preceding sectionswhether those words relate only to Secs. 1067 and 1070 Rev. Stat., which cover annual compensation, or whether they relate also to Secs. 850, 1074, and 1075 Rev. Stat., which relate to other compensation to the county auditor. It is not necessary to decide that question in passing upon this case, as the compensation under consideration here was fixed on the basis of twenty-five per cent, of the allowance made to the auditor under Secs. 1067 and 1070 Rev. Stat., only. However, without deciding the question at this time as to the right of the auditor to have any further compensation than what is claimed for these four months, to-wit, twenty-five per cent, of his compensation as allowed under Secs. 1067 and 1070 Rev. Stat., we will say that we think it is extremely doubtful whether he could be permitted to include also the compensation allowed him under Secs. 850,1074 and 1075 Rev. Stat., as a basis for the twenty-five per cent. The question is an important one, and we only go thus far in expressing our view upon it.

The opinion of the court below was full and clear upon all of the questions in the case, and we have reached the same conclusion. The judgment of the court of common pleas will therefore be affirmed.


author: WILSON, J.

text:
    INSURANCE — MUTUAL FIRE.
    [Franklin (2d) Circuit Court,
    1903.]
    Wilson, Sullivan and Summers, JJ.
    Channing W. Richards, Receiver, v. H. D. Hale.
    1. Parol Proof not Admissible to Change Terms of Insurance Power.
    In the absence of fraud or mistake parol evidence is not admissible to vary the terms of an application for an insurance policy.
    2. Policy Holder Estopped to deny Knowledge and Acceptance Thereof, When.
    A person who receives and holds an insurance policy issued upon an application therefor signed by him, during the time it was in force by its terms, is estopped to deny his knowledge and acceptance thereof.
    3._ Presumption that Policy Holder has Signed Constitution of Mutual Insurance Company, When.
    In the absence of direct proof to the contrary it will be presumed that a person shown to be a member of a mutual fire insurance company, under Sec. 3689 Rev. Stat., which provides that none but members can be insured, has conformed to the requirements of Sec. 3690 Rev. Stat., by signing the constitution of the company.
    4. Where Irregularities in Proceedings to Assess Mutual Insurance Members not a Defense in Action by Receiver Therefor.
    In an action by the receiver of a mutual fire insurance company against a policy holder to recover assessments to pay liabilities incurred during the time the policy was in force, mere irregularities'in the proceedings to assess will not avail as a defense.
    Heard on Error.
    Arnold, Morton & Irvine and Patterson A. Reece, for plaintiff, argued and cited: '
    A person who accepts and holds a policy in a mutual' insurance organization, is conclusively presumed to know the law governing it and the obligations of its charter and by-laws, whether such laws, charter and by-laws are referred to in the policy or not; and such policy holder will not be allowed to set up as a defense in a suit for the benefit of creditors of such organization, that he did not know the law, or the contents of the policy which he so accepted and held. Golden Rule v. Ainsworth, 71 Ala. 487; Edwards v. Williamson, 70 Ala. 145; Micou v. Tallassee, 47 Ala. 656; State v. Paup, 13 Ark. 129 [56 Am. Dec. 303]; Broom Legal Maxims on “ Ignorantia; ” Wilson v. Young, 25 S. W. Rep. 870 [58 Ark. 599]; Jacoway v. Denton, 25 Ark. 625; Stohr v Fund Soc., 22 Pac. Rep. 1125 [82 Cal. 557, 559]; Fry v. Insurance Co., 31 Fed. Rep. 197; Hull v. Rollins, 11 So. Rep. 97 [29 Fla. 79, 89; 16 L. R. A. 308; 30 Am. St. Rep. 95]; Moultrie v. Smiley, 16 Ga. 294; Railway Passenger &"F. C. Mut. A. & B. Assn. v. Robinson 35 N. E. Rep. 168 [147 111. 138, 139]; Supreme Rodge K. of P. v. Knight, 20 N, F. Rep. 479 [117 Ind. 489; 3 R. R. A. 409]; Sitneral v. Insurance Co., 18 Iowa 819, 322; Glenn v. Statler, 42 Iowa 107; Davis v. Commonwealth, 76 Ky. 318, 319; Orr v. Risso, 3 Ra. Ann. 478; Richardson v. Reavitt, 1 Ra. Ann. 430, 431 [45 Am. Dec. 90]; Palmer v. Hixon, 74 Me. 449; Maryland Mut. Ben. Soc. v. Clendinen, 44 Md. 429, 432 [22 Am. Rep. 52]; Monitor Mut. F. Ins. Co. v. Buffum, 115 Mass. 343. 345; Morgan v. Butterfield, 3 Mich. 615, 623; State v. Foley, 15 N. W. Rep. 375 [30 Minn. 350, 353]; Weingartner v. Insurance Co., 32 Fed. Rep. 314, 315; State v. Carver, 39 Atl. Rep. 973, 974 [69 N. H. 216]; Cutter v. State, 36 N. J. R. 125, 128; Hellenburg v. Independent Order B’Nai Brith, 94 N. Y. 580, 584; Goodale v. Fennell, 27 Ohio St. 426, 431, 432 [22 Am. Rep. 321]; Union Cent. R. Ins. Co. v. Hook, 62 Ohio 'St. 256, 263 [56 N. F. Rep. 906]; Fahie v. Pressy, 2 Ore. 23, 26 [80 Am. Dec. 401]; Susquehanna Mutual F. Ins. Co. v. Swank, 192 Pa. St. 17; Rawrence v. Beaubien; 2 Bailey (S. C.) 641 [23 Am. Dec. 155]; Hannum v. Mclnturf, 65 Tenn. (6 Baxt.) 226; Van Hoffman v. Quincy, 71 U. S. (4 Wall.) 535; Smith v. Flliott, 39 Tex. 201, 212; Roberts v. Cocke, 69 Va. (28 Gratt.) 207, 216; Morrison v. Insurance Co., 6 S. W. Rep. 605 [69 Tex. 353; 5 Am. St. Rep. 63]; McCracken v. Hayward, 43 U. S. (2 How.) 608, 613, 619; McDaniels v. Bank, 29 Vt. 230 [70 Am. Dec. 406]; Greenhow v. Vashon, 81 Va. 353; Western U. Tel. Co. v. Reynolds, 77 Va. 178, 183, 184 [46 Am. Rep. 715]; Forqueran v. Donnally, 7 W. Va. 114; Von Baumbach v. Bade, 9 Wis. 559, 577 [76 Am. Dec. 283]; State v. University Rand (Comrs.), 4 Wis. 414.
    Affirmative defenses do not arise on an answer containing denials only, or on demurrer to the petition, but must be pleaded, if at all, in the defendant’s answer. Trumbull Co. Mut. Fire Ins. Co. v. Horner, 17 Ohio St. 407, .409; Hites v. Irvine, 13 Ohio St. 283; Miller v. Miller, 16 Ohio St. 527; Gill v. Sells, 17 Ohio St. 195: Knox Co. Bank v. Rloyd, 18 Ohio St. 353; Ewing v. McNairy, 20 Ohio St. 315; Covington & Cin. B. Co. v. Sargent, 27 Ohio St. 233, 238; Rarimore v. Wells, 29 Ohio St. 13; Fanning v. Insurance Co., 37 Ohio St. 344 [41 Am. Rep. 517]; Witte v. Rockwood, 39 Ohio St. 141 ;Pomeroy Code Remedies (3 ed.), Sec. 687; Phillips Code Pleadings, Sec. 235; 9 Enc. PI. & Pr. 684, 687.
    Policy holders are estopped from pleading any irregularity, misunderstanding, misrepresentation, defect or omission whatever as against a receiver or trustee who sues for assessments to pay liabilities incurred during the time defendants held their policies in force. Trumbull Co. Mutual F. Ins. Co. v. Horner, 17 Ohio 407, 409; Callender v. Railway Co., 11 Ohio St. 516, 527; Goodin v. Evans, 18 Ohio St. 150,168 [98 Am. Dec. 95];, Lucas v. Building & L. Assn., 22 Ohio St. 339; Union Mut. L. Ins. Co. v. McMillen, 24 Ohio St. 67; Hays v. Gas L. & C. Co., 29 Ohio St. 330, 340; Clarke v. Thomas, 34 Ohio St. 46, 62, 63; Ehrman v. Insurance Co., 35 Ohio St. 324, 337; Tone v. Columbus, 39 Ohio St. 281 [48 Am. Rep. 438]; Falkenbach v. Patterson, 43 Ohio St. 359, 369 [1 N. E- Rep. 757]; Mansfield v. Ice Co., 11 Re. 617 (28 Bull. 113); Dettra v. Kestner, 11 Re. 625 (28 Bull. 119) ; Mansfield v. Woods, 11 Re. 761 (29 Bull. Ill); Richards v. Swaim, 9 Dec. 70, 76 (7 N. P. 68); Chubb v. Upton, 95 U. S. 665, 669 ; Rundle v. Kennan, 48 N. W. Rep. 516 [79 Wis. 492]; Doane v. Marine & Fire Ins. Co., 11 Atl. Rep. 739 [43 1ST. J. Eq. 522]; Hitchcock v. Galveston, 96 U. S. 341; Oneida Bank v. Bank, 21 N. Y. 490, 495;. Matt v. Protective Soc., 30 N. W. Rep. 799 [70 Iowa 455]; 16 Am. & Eng. Enc. Law (1 ed.) 95; Kitzmiller v. Van Rensselaer, 10 Ohio St. 63, 64 ; Holt v. Lamb, 17 Ohio St. 374, 387, 388; Toledo Tie & Lumber Co. v. Thomas, 11 S. E. Rep. 1137 [33 W. Va. 566; 25 Am. St. Rep. 925].
    Charles C. Pavey and J. B. Kahle, for defendant in error, cited:
    To admit evidence of fraud when fraud is relied upon as a defense, there must be a statement of facts constituting the fraud, for in such a case it is new matter and must be specially pleaded. Bates Pleading, Parties and Forms 451; Kinkead Code Pleading, Sec. 607; Phillips Code Pleading, Sec. 271.
    To constitute a valid contract there must be a mutual assent of the parties thereto, and they must assent to the same and in the same sense. Bruner v. Wheaton, 46 Mo. 363.
    Essentials of a simple contract. Loaiza v. Superior Court, 24 Pac. Rep. 707 [85 Cal. 11; 9 L- R. A. 376; 20 Am. St. Rep. 197]; Morrill v. Nitingale, 28 Pac. Rep. 1068 [93 Cal. 455; 27 Am. St. Rep. 207]; Comyn Contracts 2; Story Contracts (5 ed.) 1; Beach Contracts, Sec. 1, note 111. Machine Co. v. Insurance Co., 50 Ohio St. 549, 555 [35 N. E. Rep. 1060].
    The office of a general denial is twofold. First, it casts upon the plaintiff the burden of proving all the material facts constituting his cause of action; and second, it authorizes the defendant to disprove those averments, and controvert the plaintiff’s evidence. Phillips Code Pleading, Sec, 383.
    Where the plaintiff, in an action of replevin, alleges his ownership of the goods in question, his right to the immediate possession of them, and their unlawful detention by the defendants, the latter may, under a general denial, prove that as an officer he levied upon the goods at the suit of a creditor of one from whom the plaintiff obtained them and that the transfer to the latter was fraudulent and void as against creditors. Bailey v. Swain, 45 Ohio St. 657 [16 N." E. Rep. 370].
    The defense of new matter. Phillips Code Pleading, Secs. 380, 384.
    A person who solicits insurance and procures the application therefor shall be held to be the agent of the party hereafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding. Sec. 3644 Rev. Stat.; Guenther Insurance, Secs. 26, 42 43; Hilliard v. Insurance Co., 5 Dec. 576 (7 N. P. 561); Insurance Co. v. Williams, 39 Ohio St. 584 [48 Am. Rep. 474]; Amazon Ins. Co. v. Wall, 31 Ohio St. 628 [27 Am. Rep. 533].
    On Application for Rehearing:
    Section 3689 Rev. Stat.: “ In no instance shall the power to insure * * * be exercised to other than members of the association.” Necessarily if Hale did not become a member ot the association, in conformity to the requirements of the statute, his contract was an illegal contract. Courts always leave both parties to illegal contracts, and almost always to ultra vires contracts where they find them. Coppin v. Greenless, 38 Ohio St. 275 [43 Am. Rep. 425]; 1 Clark & Marshall Priv. Corp , Secs. 213, 214; Montgomery v. Montgomery, 31 Ala. 76 ; Central Trans. Co. v. Car Co., 139 U. S. 24 [11 Sup. Ct. Rep. 478]; Phoenix Life Assurance Co., In re, 2 Johns. & H. 441; Bath Gas Light Co. v. Chaffy, 45 N. E. Rep. 390 [151 N. Y. 24; 36 L. R. A. 664].
    Members of a mutual fire association are liable to be specifically assessed, from time to time, to pay losses which occur while they are such, but no member is liable to such assessment to pay losses occurring before he became a member, or which may occur after he ceases to be a member. State v. Fire Assn., 42 Ohio St. 555. If Hale had been a member when the Aetna. Fire Association went into the hands of the receiver it is likely that he and all the members would have gone into court with the association, but not being a member, he did not go into court, and not being brought into court, he is not bound by any decree which that court made. Wilhelm v. Parker, 9 Circ. Dec. 724 (17 R. 234); State v. Fire Assn., 42 Ohio St. 555; State v. Fire Assn., 50 Ohio St. 145 [33 N. E. Rep. 401; 24 L- R. A. 252]; Richards v. Swaim, 9 Dec. 70 (7 N. P. 68).
   WILSON, J.

The action in the court below was a suit brought by the receiver of the Aetna Fire Association of Cincinnati, Ohio, an insolvent mutual insurance company, to recover an assessment or assessments from the defendant, who is alleged to be a policy holder in the company, the assessments having been ordered by the court of common pleas of Hamilton county, as necessary to pay debts. The petition for that purpose is in the ordinary form. The answer denies that the defendant ever made application for or accepted any policy in the company or ever became a member thereof, and therefore denies that he is liable to such assessment. The reply is that the policy contained an express provision that he should be liable to assessment; that he accepted and held a policy in the company for the full term it was to be in force, and that there» fore he is estopped to deny liability. . In the progress of the trial in the court of common pleas, the plaintiff introduced a printed application in the usual form for a policy in the Aetna Fire Association of Cincinnati, Ohio, signed by the defendant with the terms of insurance written therein. The defendant admitted the signature to the application, and produced at the trial a policy in that company issued in accordance with its terms. He did not claim that the written terms in the application, as distinguished from the printed terms, were other than those agreed upon, but he claimed that as to them, he signed the application in blank. He was then permitted to testify over the objection of the plaintiff that at the time he signed the application he told the agent of the company who solicited the insurance that he did not want insurance in an assessment company, but wanted it placed in an old line company, and' that the agent represented to him that he was to have insurance in the Aetna Fire Insurance Company of Hartford, which had a branch office in Cincinnati.

In the absence of a plea of fraud or mistake, the evidence was incompetent. Its effect was to contradict and vary by parol evidence the terms of a written contract. The attitude of the defendant under the admitted facts was, not that there was no contract entered into, but that the contract signed was not the true contract, and he was estopped to deny the terms of the application he signed unless it could be impeached for fraud or mistake.

It appears that the policy in question was at the direction of the defendant delivered to the cashier of the City Bank of Findlay, Ohio, who, by his authorization, paid the premium therefor out of the funds of the defendant and held the policy as collateral security to secure a loan made by the bank to the defendant. The policy stipulated bj1- its terms at the request of the defendant that the loss, if any, should be paid to the bank as its interest might appear. The bank held the policy until it had subserved its purpose as collateral, and until some time in April, 1895, at which time the defendant received notice of the assessments sued upon. It was thereafter held by the defendant for the remainder of its term, which was a year from July 19, 1894, and up to the time of the trial in court below, he still held it in his possession.

Under such a state of facts, the defendant is estopped to say that he did not know its contents, and to deny, against the creditors of the company, as he would be against the bank while it held it as collateral, or against the company itself, that he entered into the contract.

It follows, therefore, that there was error in the admission of parol evidence to contradict and vary the terms of a written contract. The trial court seems to have admitted it upon the theory that the issues might be changed to conform to the facts. But they were not changed, and it would have been prejudicial error to so change them without notice in time for the plaintiff to prepare to meet such an issue.

There was error in the charge of the court, as touching the liability of the defendant upon a finding that he had received and held the policy. The charge of the court was':

“ If you find that defendant in this case became a member of this association by taking out a policy and holding it, knowing that it was a policy in a mutual association of this kind, then your verdict will be for the amount claimed in the petition against the defendant.”

The jury should have been instructed that if he did receive and hold the policy during the time it was in force by its terms, he was charged with knowledge of its contents, and would be bound by it. The verdict and judgment are against the weight of the evidence. Upon the evidence in the record they should have been for the plaintiff.

The judgment is reversed and the cause remanded for new trial.

ON MOTION FOR REHEARING.

The claim is now made for the first time in this court that the petition does not state a cause of action, for that it fails to aver the defendant signed the constitution of the association; also that the evidence does not prove the signing, and that,- therefore, the judgment should be affirmed.

We are of the opinion there is no such defect in the petition as can be complained of, alter issue joined, trial had, and judgment rendered. It is true the averment in the petition that the defendant was a member of said association, appears to be predicated upon the fact that he applied for and accepted insurance therein ; and that it is not averred, in terms, he had signed the constitution, as the statute seems to require. Bection 3690 Rev. Stat. But it is also true that the denial of membership in the answer is predicated upon the denial that he applied for or accepted insurance. The one is no broader than the other.

The plaintiff proved, and the defendant admitted, that the defendant had received, returned and had cancelled, a policy prior to the one sued upon, for which he paid a short rate premium. Both parties admit the validity of this returned policy, whatever may have been the reason for its return; the one claiming it was to redistribute the insurance, and the other that he wanted to change the character of the insurance. But the necessary inference from the transaction is that the defendant was a member of the association, because, under the statute, none but members can be insured. Section 3689 Rev. Stat. In the absence of a direct claim and proof that he had not signed the constitution the pre1sumption is that the defendant had conformed to the requirements of the statute; and- if he had not, the fact that he accepted insurance and received-the benefits, would estop him from denying that he had.

The policies sued upon were not void.

In an action by the receiver, to recover assessments to pay liabilities incurred during the time the policies were in force, mere irregularities in the proceedings to assess will not avail as a defense.

The motion for rehearing is overruled.