text:
    OFFICIAL SERVICES FOR WHICH NO PAYMENT IS PROVIDED.
    Circuit Court of Delaware County.
    City of Delaware v. W. B. Mathews.

    Decided, 1909.

      Chiefs of Police — Service of Process hy, Where Issued hy Mayor — No Provisions for Payment — Service Must he Regarded as Gratuitous.

    1. There is no provision of law for payment of a chief of police for service of process issued by a mayor in cases wherein the state of Ohio is plaintiff.
    2. Costs collected for services of such process by a chief of police issued by a mayor, are not recoverable by the officer where they have been turned over to the city, or by the city if turned over to the officer.

      E. S. Owen, City Solicitor, and F. A. Owen, for plaintiff in error.

      Marriott & Freshwater and Jewell & Benton, contra.
    Taggart, J., Donahue J., and Shields, J., concur.

       Affirmed by the Supreme Court without opinion, Mathews v. City of Delaware, 82 Ohio State, p. 423.

   The plaintiff in error, by its petition, seeks to reverse the judgment of the court of common pleas wherein a judgment was entered against it in favor of the defendant in error. The principal question made in the case is that the judgment of the court of common pleas is contrary to law, and the said judgment should have been given for the plainiff in error when the same was given for the defendant in error.

The action in the court of common pleas was one in which the defendant in error sought to recover from the city of Delaware the sum of $541.61, the amount of fees which he claims had been assessed, collected .and turned into the treasury of the city of' Delaware, being costs which had been assessed in cases of the state of Ohio against various defendants in the mayor’s court of the city of Delaware.

The plaintiff claims that he presented an, itemized statement and account of said fees- claimed to be due him, and requested, through the city council, that the same be paid him; but the council rejected said claim and refused to allow the same.'

The city by its answer admits that the plaintiff was the duly appointed, qualified and acting .chief of police of said city; admits that he presented and filed with the city clerk an itemized statement and account of said fees claimed to be due him; admits that his claim was rejected; admits the corporate capacity of the city, and denies all the other allegations in the plaintiff’s petition.

From the record we learn that these fees were collected from various parties, and, with the knowledge and acquiescence of the plaintiff, were turned into the treasury of the city of Delaware. The question in the case is: “ Can he now recover these fees ? ’ ’

In the enactment of the municipal code in the year 1902, the office of marshal in cities in the state of Ohio was abolished, and instead thereof the office of the chief of police was created. Instead of being an office for a fixed term and elected by the people, it was an office which was to be filled by appointment by the mayor.

The Legislature, in the municipal code, provided that the mayor of a city, when exercising the duties of a magistrate, both in a civil and criminal, capacity, is to receive like fees as are allowed justices of the peace. The chief of police, in cities having a police court, were to receive like fees as constables and sheriffs in the probate court and before justices of the peace. The marshal of a village, in executing processes issued to him by the mayor of the village, was likewise-to receive the same fees as are taxed for a constable executing a process of a justice of the peace, but there is no section of the statute which, in express terms, directs the payment to a chief of police fees for the executing of .any process issued to him by the mayor of the city in this class of cases. Whether this was through inadvertence of the Legislature it is not necessary.to conjecture. It is certain that no section of the statute is called to our attention, neither have we been able to discover any section of the municipal code which authorizes the payment to the chief of police of fees for executing such processes issued to him from the mayor of the city.

So that this record presents this state of facts: Fees were taxed for the execution of processes issued to this chief of police, and collected and paid by the parties against whom the costs were assessed, and were deposited in the treasury of the city of Delaware.

As this court views the case, there was no' right or authority for so taxing costs or collecting the same; and there was no right or authority for the plaintiff, as chief of police, receiving the same. But, as these costs and fees are in the city treasury, the plaintiff must recover by the strength of his right to the same, rather than by showing that the city of Delaware has no right to hold and retain the same.

Our attention is called to the cases of City of Portsmouth v. Millstead and Baucus, 8 C.C. (N.S.), 114. We think those cases were properly determined; but not decisive of this case. These cases simply decide the question that the chief of police, having received these fees or costs taxed and collected in his favor, the city of Portsmouth can not recover the same from him. If the plaintiff herein had collected these fees and the city of Delaware was seeking to recover the same, we would be clearly of the opinion that no cause of action existed in its favor, and that it could not recover .the fees. So, likewise, we are of the opinion that these costs, so collected and in the treasury of the city of Delaware, whether there rightfully or wrongfully, give no right of action to the plaintiff herein, even though they were taxed as costs and paid by the several parties, for there is no law or authority for so taxing or collecting the same from the several parties from whom they vrere collected.

It will, perhaps, be urged that there is a construction of the statute which ought to be given, which will sustain the judgment of the court of common pleas, that processes issuing out of the mayor’s court are to be directed to the chief of police or other police officer, and that, when he is called on to perform these duties, there is at least au implication that he should receive compensation therefor. But it has been repeatedly held that, where services for the benefit of the public are required by law and no provision for its payment is made, it must be regarded as gratuitous and no claim for compensation can be enforced.

We do not think this principle can now be seriously controverted, and, as we are unable to find any provision of law for the payment of this class of services, we think it must necessarily be held that the same was gratuitous.

There is no section of the statute to be construed. The Legislature, in respect to chiefs of police in cities having a police court, has authoritatively spoken; so, also, in respect to marshals of villages; so, also in respect to mayors when acting as magistrates; but the Legislature has made no provision for the payment for the service of process by the chief of police, when issued by the mayor of the-city. Whether this was an oversight of the Legislature or whether it was intentionally omitted, it is not for us to guess.

In the case of Hough v. Dayton Manufacturing Co., 66 Ohio St., at 427, in passing upon the attachment law of the state, the court employs some very pertinent and instructive language as to courts attempting to legislate something into a statute that has not been enacted by the Legislature.

We call attention to the case of Slingluff v. Weaver, 66 Ohio St., at 621:

“1. The object of judicial investigation in the construction of statutes is to ascertain and give effect to the intent of the lawmaking body which enacted it, and where its provisions are ambiguous and its meaning doubtful, the history of legislation on the subject and the consequences of a literal interpretation of the language may be considered, punctuation may be changed or disregarded, words transposed, or those necessary to clear understanding, as shown by the context manifestly intended, inserted.
“2. But the intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt and express plainly, clearly and distinctly the sense of the law-making body, there is no occasion to resort to other means of interpretation. The question is not, what did the Genera] Assembly intend to enact, but what is the meaning'of that which it did enact ? That body should be held to mean that which it plainly expressed and hence no room is left for construction. ’ ’

This was a case in which the Legislature of the state sought to enlarge the jurisdiction of the Supreme Court, but, by its enactment, practically robbed it of all its jurisdiction except in extraordinary matters, and the court, in passing upon the Royer act, held that there was no place for judicial interpretation.

So in this case, we think this is a matter that must be remedied by the Legislature and not by judicial legislation.

Holding to these views, we think the judgment of the court of common pleas was erroneous, being contrary to law; that the judgment should have been for the plaintiff in error and not for the defendant in error. For this reason, the judgment of the court of common pleas is reversed and remanded with costs. Exceptions noted.


source: Caselaw Access Project

license: Public Domain

text:
    INTEREST ON DEPOSITS OF PUBLIC FUNDS.
    Circuit Court of Hamilton County.
    The State of Ohio, ex rel Prosecuting Attorney, v. the Western German Bank.

    Decided, January 29, 1910.

      Interest — Action for Recovery of, from a Bank — Where. Received by a County Treasurer on Public Funds Deposited Without Authority.

    1. An action may be maintained by the prosecuting attorney for recovery from a bank of interest on public funds deposited therein, whether so deposited lawfully or otherwise.
    2. Where such an action is brought for the benefit of a county, the state is not a real party in interest, and the six years statute of limitations is available.

      Hunt; Bettman & M err ell, for plaintiff in- error.

      Kittredge, Wilby <& Stimson and H. D. Pech, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.

       Affirming State, ex rel, v. Franklin Bank, 8 N.P. (N.S.), 81, and State, ex rel, v. Western German Bank, 1 O. L. R., 432.

   The original action was commenced to recover from the bank money had and received, whether wrongfully or not, for the use of Hamilton county; and it is because 'the money is thus diie to the county that the Prosecuting Attorney is authorized to bring the suit as he did. Section 1277, Revised Statutes.

The limitation applicable to the cause of action stated was six years, as provided by Section 4981, Revised Statutes, and not four years, as provided by Section 4982, Revised Statutes. Mount v. Laheman, 21 O. S., 643.

The action having been commenced under favor of Section 1277, Revised Statutes, for the benefit of the county and to recover money due to the county," the state is not a real party in interest, and the plea of the statute of limitations .is available. Hartman v. Hunter, 56 O. S., 175.

Judgment affirmed.


author: Kinkead, J.

text:
    BOYCOTT OFf A HOTEL.
    Circuit Court of Lucas County.
    Michael J. McCormick and William E. Fisher, Partners as McCormick & Fisher, v. Local Union No. 216 Hotel and Restaurant Employes et al.
    Decided, January, 1911.

      Injunction Against a Boycott — Injury to Trade or Patronage by at Combination of Persons May be Restrained, When — Disputes Between Capital and Labor — Resort to Coercive or Threatening Measures —Unlawful Conspiracies — Distribution of Cards Calling Upon the Public to Cease Patronizing a Certain House — Freedom of the Press and Public Speech.

    1. Peaceable persuasion and argument, oral, printed or written, by members and officers of labor unions to divert patronage from a hotel claimed by them to be “unfair to labor” will not be enjoined as an unlawful boycott.
    2. Injunction will lie to restrain coercive measures by labor unions in the maintenance of a boycott against a hotel claimed to be “unfair to labor.” Whether or not such claim is well founded is immaterial.
    3. Coercive measures to enforce a boycott may consist of violence or any form of intimidation such as threats, oral, printed or written. The restraint of such unlawful acts by a court of equity does not violate any right of trial by jury or any constitutional provisions as to the freedom of speech or the press.
    4. The distribution by pickets in a labor union boycott, or cards warning patrons of a hotel and saloon not to patronize the place as unfair, and threatening to publish the names of any who do so, may be enjoined.

      Sala & Carabin, for plaintiffs.

      Charles Lawton, contra.
    Wildman, J.; Parker, J., concurs; Kinkade, J., dissents in a separate opinion.
    Heard on appeal.
   The plaintiffs, owning and operating as partners the Grand Hotel, on Adams street in this city, and in connection therewith a saloon and restaurant, in May, 1910, became involved in a dispute with the defendant associations named in the title of the case, which are voluntary unincorporated labor organizations, and officers of the same. The trouble arose over the retention in the service of. the plaintiffs of certain bartenders, members of the defendant unions, after request of those organizations that they be discharged from the plaintiff’s employment because they were in default for their dues as such members and were therefore not in good standing.

As an outcome of the dispute, on or about May 12, 1910, a boycott was organized and pickets were posted on the sidewalks in front of said hotel, saloon and restaurant, to distribute printed cards containing notices or information that said hotel was “unfair” to labor, and requesting friends of labor not to patronize it. The cards prepared for this purpose and distributed by. said pickets varied somewhat in their phraseology, but were all designed to divert patronage from the hotel named. They were all persuasive in character, rather than mandatory or threatening, except that on the backs of some of them the precise time of the distribution of which is not made clear by the evidence, was printed a warning notice as follows: “Names of business men patronizing the unfair Hotel Grand will be published.”

The boycott so inaugurated has continued to the present time, to the heavy financial loss of the plaintiffs, as they assert.

August 12, 1910, the plaintiffs filed their petition in the court of common pleas, asking an injunction to restrain all said acts and all interference with their employes and patrons. The action having come into our court by appeal, two of its members, Judge Parker and myself, on the 14th day of October, 1910, allowed a temporary injunction in the following terms:

“This 14th day of October, 1910, this cause came on to be heard before the Hons. R. S. Parker, R. R. Kinkade and S. A. "Wildman, Judges of the Circuit Court in and for Lucas County, Ohio, at chambers in Toledo, Ohio, on the motion of the plaintiffs for a temporary injunction as prayed for in their petition and the evidence and was argued by counsel; on consideration whereof it is hereby ordered by the undersigned, the said Judges R. S. Parker and S. A. Wildman, that the defendants and each of them be and they are hereby enjoined until otherwise ordered herein from interfering with said plaintiffs, or their patrons or persons going to or from their said premises, by threats, oral, printed or written of injury to their-persons’ property or business, or by insults, personal violence, or other forms of intimidation, or from entering in and upon the premises of the plaintiffs, against the will of the latter, or in any manner keeping or endeavoring to keep any person or' persons against the will of such person or persons from becoming or remaining patrons of the plaintiff; and to this extent said motion is sustained.
“But in so far as said motion seeks to restrain the defendants from standing or walking on -the sidewalk, or street, on which plaintiff’s said premises abut, and there or elsewhere, without insult, threats, violence or other intimidation, persuading or attempting to persuade persons not to patronize plaintiff, said motion is hereby overruled.”

I have quoted this order as journalized, in full, because of some misunderstanding which seems to have arisen immediately after its rendition as to its terms.

It is not apparent, however, from any of the supplementary evidence which has been submitted to us, that, since the entering of this order, it has been in any manner disobeyed. Picketing in the vicinity of the hotel has been continued and printed cards have been distributed, but no intimidation or coercion has -apparently been resorted to to divert patronage.

Unless the mere maintenance of a peaceable boycott is sufficient to justify an exercise of the restraining power of a court of equity, we should not in any final decree enlarge the scope of the interlocutory order already made as I have quoted it. That order was directed at coercion, not persuasion.

After an earnest consideration of the facts disclosed by all the evidence and numerous expressions of views entertained by courts and text-writers, it is a matter of regret that the members of our court find themselves not wholly in accord. To a majority of us, however, it seems not only just, but abundantly sustained by the authority of eminent jurists, that any combination of persons to effect a diversion of trade or patronage from another person, firm or corporation by violence, threats, intimidation or other form of coercion, must be deemed unlawful, and that to prevent such acts a court of equity should not withhold its protection when its powers are invoked.

On the other hand, for myself at least, I can not accept the doctrine expressed by some writers and judges, that while an ihdividual may lawfully withdraw his patronage from any person or concern, a labor union or other combination of persons may not lawfully do the same thing; or that while an individual may lawfully ask his friends to withdraw their patronage from any institution which he deems unfair to him or unfriendly to his interests, numerous individuals may not, severally or in combination, likewise do so.

While the numerous and rapidly multiplying authorities treating the troublesome question arising in dispute between capital and labor can not be harmonized, the view which seems to me just, that acts which are lawful to individuals are equally so to combinations of individuals where not prohibited by statute, finds some support in the language of Judge Taft in the case of Moores &. Co. v. Bricklayers’ Union et al, decided by the Superior Court of Cincinnati, General Term, 23 L. B., 48. The case was affirmed by the Supreme Court, 51 O. S., 605, but without report.

The same case, s.o affirmed, is authority for the position taken by us in the interlocutory order, that coercive means, although for an end not unlawful, will be restrained by a court of equity.

A majority of the court is disposed to adhere to this position. I will not attempt the citation of authorities to sustain it, but will content myself with two brief quotations from the recently published treatise of W. A. Martin on the Law of Labor Unions as found in Sections 75 and 76 (p. 115):

“A combination of workmen formed for the purpose of coercing the customers or prospective customers of one against whom it is directed to withhold their patronage from him is almost universally held to be'an unlawful conspiracy.
“According to the great weight of authority it is an unlawful conspiracy for a combination of workmen to combine to coerce one’s customers or prospective customers to withhold their patronage from him by threats that in ease they fail or refuse to do so, the combination will in turn cause injury to their business by causing loss of patronage.”

The author of this treatise is also reviewing editor of the Cyclopedia of Law and Procedure, and seems to have collated the numerous adjudications on the subject.

Our examination of the evidence before us leads to the conclusion that in at least the earlier stages of the boycott against the Grand Hotel the distinction between lawful, peaceable persuasion and unlawful coercion was not sufficiently regarded by the members and agents of the unions by whose authority printed tickets were procured and distributed in front of the hotel. Not all the officers of the unions or their agents are shown to have used other than legitimate means for the accomplishment of the concerted purpose, but some, ove rzealous, seem to have forcibly interfered to prevent patronage of the hotel.

It is too familiar a rule to require citation of authority that the acts of one member of a combination in furtherance of a common end must be deemed the acts of all.

We are also inclined to the view that the cards circulated at some stage of the proceedings bearing words of warning to patrons of the hotel that their names would be published, carried an implied threat that the result would be injurious to them. Otherwise, the notice would have had no deterrent effect and would have been futile as a means of furthering the boycott.

That the result of all these acts, persuasive and coercive,' has been a heavy loss of patronage to the plaintiffs, and that it is utterly impracticable to measure in damages the extent to which such loss has been or may be enhanced by such of them as we have described as overstepping legal bounds, is clearly disclosed by the evidence, so that, even without the admission made in the record that the defendants are insolvent, no legal remedy is apparent, and the plaintiffs were justified in the institution of the action.

It is the judgment of a majority of the court that the temporary injunction heretofore allowed against the defendants should be made perpetual, and such will be the decree. We do not feel called upon to discuss the question urged in argument by counsel, whether the boycott was or was not justified by any unfair attitude of the plaintiffs toward labor, or whether the distributed cards were true or libelous. Even if they were all libelous, the court, as we held in Judson v. Zurhorst, 10 C.C.(N.S.), 289, would not enjoin their circulation for that reason.

Authority for injunction against voluntary unincorporated associations, their officers, and members, is found in the case of Hillenbrand, v. Trades Council, 14 O. D., 629, and the numerous decisions cited in the opinion.

Kinkead, J.

(dissenting).

In this case the defendants are charged with soliciting persons not to patronize the Grand Hotel oumed by the plaintiffs, for the reason, as stated by defendants in making such requests, that the hotel was unfair to union labor. These requests were courteously made on the public street of persons going to and coming from the hotel, and of the public generally in passing by the hotel, by means of personal requests on the street and by the use of printed cards handed to various persons on the street by the defendants. Different statements were made, and several different forms of printed cards were used, but all, with one exception (hereafter mentioned), were of the same general tenor and effect, that is to say, they were requests to the friends of union labor not to patronize the hotel for the reason above stated. One card used for a very short time and then abandoned, gave notice that the names' of persons patronizing the hotel would be published. Certain acts of violence are charged against the defendants, which I think the evidence fails to establish. During the time of the alleged boycott, the plaintiffs, aided by the Citizens ’ Industrial Alliance, an anti-labor union organization, caused to be printed and circulated generally throughout the city, cards stating that a boycott was on against their hotel, and requesting the public to disregard the boycott and continue its patronage of the hotel, and thereby rebuke the methods of the labor unions. The plaintiffs also had painted and hung in the front window of the hotel a large banner, giving notice to all who passed that that was the place that was boycotted.

A great deal of the evidence found in the record appears to have been offered by both sides as bearing upon the question whether the hotel proprietors, plaintiffs here, were in fact unfair to union labor, whether the defendants were or were not justified in determining, as they did, that the hotel was unfair to union labor. We are unanimous in the opinion that practically .all of this evidence is quite immaterial in considering the real questions here involved. No more need be said of this feature of the case than that the proprietors of the hotel thought the defendants had no just complaint against them, and that the defendants were equally sure that they had. We deem it wholly unnecessary to pass upon the relative merits of these claims in order to determine the real questions arising here.

The question of the liberty of speech and of the press is squarely made in this ease, and the parties are entitled to have the question squarely passed upon by the court. The chief counsel for the plaintiffs, in the opening of his argument, with commendable frankness stated that while that which had taken place was of serious consequence to the plaintiffs, yet the principles involved in the case were of far greater importance to the public generally.

The plaintiffs ask that all of the individual defendants named, as well as all other members (though not named individually) of the two local unions, defendants in this action, and also the two local unions as well, be perpetually enjoined from soliciting persons not to patronize the Grand Hotel, and from giving out to the public any statement that the Grand Hotel is unfair to union labor. A majority of the court are of the opinion that an injunction should be granted on behalf of the plaintiffs, as indicated by the opinion just delivered.

I can not concur in the decision of the majority of this court.

In my opinion, no court in Ohio has the power to restrain, by injunction, the liberty of speech or of the press. The whole subject is fully covered by Article I, Section 11, of the Constitution of Ohio, which reads as follows:

“Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury, that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.”

There is no uncertainty in this provision of the Constitution. The language is simple, plain and very broad in its scope, and if this provision does not insure the citizens of Ohio against censorship of speech and of the press, by injunction, it may well be doubted whether anything could be written which would. No one doubts but what the abuse of the right of free speech can be and ought to be punished. The section of the Constitution quoted clearly contemplates this, and the Legislature has full power to enact all necessary laws in this regard. But there can be no abuse of the right until there is an exercise of the right. I think the question whether there has been an abuse of the right in any case should be determined by a jury under proper instructions from the court, and not by a judge. With all due respect for the opinions of others who entertain views at variance with my own on this subject, I feel obliged to say that I regard the restraining of the freedom of speech or of the press, by injunction, as the exercise of a power plainly prohibited by the Constitution. It is my firm conviction that no court should ever be clothed with any such power. Punishing the abuse of the right of free speech is one thing (and is entirely proper), but the muzzling of the citizen or the press with an injunction so there can be no exercise of the right of free speech, is a very different thing, and in my opinion is a very dangerous thing.

The Constitution does not direct the Legislature or the courts to determine to what extent we shall have free speech or a free press, but, on the contrary, the Constitution itself grants to “every citizen” the right to “freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of the right” and then adds “and no law shall be passed to restrain or abridge the liberty of speech or of the press. ’'

The Legislature has never attempted to pass any law narrowing this provision of the Constitution, or in .anyway denying the rights therein granted, and were it to do so, the courts would very promptly, and very properly, declare such a law unconstitutional.

The language of the Constitution is so very plain, it needs only to be read to be fully understood by any one. Unless something be read into the section that is not there, or a portion of what is there be disregarded, I am unable to see how an injunction restraining the freedom of speech or of the press can possibly be in accord with the Constitution.

It is a fact that practically all of the encroachments upon the right of free speech and a free press, up to date, have been made by the courts themselves — the sworn defenders of the Constitution. Doubtless they have regarded the urgency of the ends sought as a justification of the extraordinary means employed, even to the extent of denying the right of trial by a jury; but to these extremes I must respectfully decline to go.

No greater mistake can be made than to underestimate the importance of free speech and of a free press. These rights are among the strongest bulwarks of liberty. It is our duty to guard them with jealous care, and this duty should appeal with peculiar force to the courts. They should never lend their assent or assistance to the weakening or paralyzing of those constitutional rights, without which liberty can not long exist.

The Supreme Court of the United States, in a case involving the boundary line of states where marked by rivers, discussed the question of the shifting of the boundary line by reason of the bank of the river slowly wearing away on one side and accumulating on the other. They held that land thus accumulated, by accretion, upon one side of a river belonged to the state upon that side; and that the boundary line between the states shifted accordingly (not so where the river changed its course suddenly, as by a freshet. In such ease the boundary line is not altered). In that case the Supreme Court defined the word “accretion” as meaning “something which you can see has taken place, but which you can not see take place. ’ ’

If some of the courts which have issued injunctions in labor troubles were inquired of as to the source of their power to go to the lengths they have gone in some cases in restraining, by injunction, breaches of the peace and violations of the criminal law generally, they might be compelled to answer “we got it by accretion — by the gradual wearing away of the power of the executive branch of the government as aided by the regular criminal courts, and a corresponding increase in power, by accretion, on the part of courts of equity, to substitute the injunction for the neglect of duty on the part of executive officers and in the' place of jury trials in the regular criminal courts.” They might add ‘ ‘ of course no one saw us get this power, but all now know that the ancient boundary lines have shifted and that we are now exercising the power.”

We may admit the existence of' a power, and still deny the wisdom of exercising it except in extraordinary eases, and then only with very great caution. It is very easy to issue an injunction, and it is a very ready and summary method for the court to determine,- without the aid of a jury, whether there has been a violation of the order. No one doubts the simplicity or efficiency of injunction procedure; these are the qualities that render it attractive to people-who prefer, when it better suits their own purposes, to omit the limitations and restraints incident to jury trials. Were these same people themselves on trial for a violation of the criminal law, they would stand aghast if any one suggested that the jury be dispensed with and that they be tried by the court — they would be amazed, and justly so, at both the ignorance and the effrontery of any one who would thus seek to deny them their constitutional rights.

I want to say, with all the seriousness and emphasis at my command, that in my humble opinion the reckless use of the writ of injunction is itself producing an injury that may well be described as irreparable. I refer to the impairing of the confidence of the people generally in the courts. We have certainly reached the danger line.

I wish to say, concerning this case, that in my opinion the evidence here fails to show that the plaintiffs are entitled to the relief asked for. I have read every word of the evidence in this record, including the exhibits attached, and without taking time to review it in detail, will say that I think we should dismiss the petition of the plaintiffs at the plaintiffs’ costs.


text:
    INJURY THROUGH NEGLIGENCE.
    Circuit Court of Hamilton County.
    The William Heffron Construction Company v. Martin Glass, an Infant.
    Decided, December 11, 1909.

      Test of Liability of Master for Injury to One Servant Caused by negligence of Another — Burden of Proving Contributory negligence— Charge of Court — Prejudicial Error.

      Wm. Littleford, for plaintiff in error.

      Kinkead & Rogers, contra.

    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The test in this state of the liability of a master for negligence of one servant causing injury to another servant is whether the former is placed in authority and control over the latter, and not whether he (the latter) was originally employed to do the act complained of, especially when such act is in furtherance of the work both are engaged in.

The objection to the charge of the court upon the subject of contributory negligence is not that the court instructed the jury that the negligence of the plaintiff, contributing directly to his injury, would defeat a recovery, but that the burden of proving-contributory negligence rested upon the defendant, although no such issue was tendered.

The defense at the trial was that the defendant was not guilty of any negligence, and that the accident was due entirely to the carelessness of the plaintiff. In such a ease the error is necessarily prejudicial. Cincinnati Traction Co. v. Forrest, 73 O. S., 1; Traction Co. v. Stephens, 75 O. S., 171; List Son Co. v. Chase, 80 O. S., 42.

Judgment reversed and cause remanded for.a new trial.


text:
    TITLE TO UNDIVIDEDJINTEREST IN REAL ESTATE.
    Circuit Court of Hamilton County.
    Helen Betts Hamilton v. Thomas B. Stone et al.
    Decided, November 19, 1910.

      Quiet Title — Construction of Will Incidental — Jurisdiction of Superior Court — Presumption as to Validity of Judgment by Probate Court— Inconsistent Provisions of Will — Section 10857.

    1. Where the action is to quiet title, and the construction of a will is but incidental to the main issue, the Superior Court of Cincinnati has concurrent jurisdiction with the Common Pleas.
    2. In the absence of evidence to the contrary every presumption is in favor of the validity of a judgment by the probate court, where jurisdiction over the subject-matter has been shown.
    3. The two provisions of the will in this case are inconsistent and repugnant and can not stand together, and while there is no good reason why- the later provision should defeat the express devise which precedes it, some ground appears for upholding this devise, which entitles plaintiff to a decree quieting her title as against control thereof by the administrator de bonis non.

      Charles B. Wilby and Charles Phares, for the plaintiff in error.

      Sayler & Sayler, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The prayer of the amended petition, as well as the cause of action stated, is to quiet the title of the plaintiff to an undivided interest in a life estate in certain real property, and the construction of the will of Smith Betts is but an incident of the main issue, the will being evidence of her title; hénce the action is not brought under Section 6202, Revised Statutes (10857, General ' Code), which gives exclusive jurisdiction to the court of common pleas, but one in whieli the Superior Court of Cincinnati has concurrent jurisdiction.

The judgments of the probate court relied upon as a bar to this action embrace the overruling of exceptions to the account of the administrator de bonis non with the will annexed and of the motion to remove him as such administrator. The decision of the court upon the exceptions did not determine the right of the administrator to act as a testamentary trustee in controlling the life estate in which the plaintiff has an undivided interest. It did determine however that the appointment of Thomas. B. Stone as administrator was necessary and made by authority of law. There is no item excepted to which shows that he collected rents or controlled or managed the real estate of the plaintiff. The probate court had jurisdiction of the subject-matter, 'and every presumption, in the absence of evidence to the contrary, is in favor of the validity of its judgment.

The decision of the court upon the motion to remove the administrator may have been based upon a finding that there were assets of the estate not yet administered, and at the same time the court may also have found that there was no trust estate to be administered by him as trustee. In neither decision do we find that the court necessarily passed upon the question of the right of the executors or the administrator to act as testamentary trustees in controlling the real estate described in the petition. It follows therefore that the court- erred in overruling the demurrer to the second and third defenses of the answer.

The question still remains whether, upon issue joined by the amended petition and the first defense of the answer, the will of Smith Betts authorized and empowered the executors or administrator to manage and control, as trustees, the real estate devised to plaintiff and the other children of the testator by item four,- to-wit:

“On the death of my said wife Cynthia A. Betts, I give, devise and bequeath my entire remaining estate for use .during their natural lives to my children, Mary Helen, Stanley, Fannie, Edwin, William and Charles; at their death to their children in fee simple, my estate to remain intact and not to.be divided until all of my said six children are dead;' the children of any of my said six children to take their parent’s share and my said six children to take share and share alike. In the event of thé death of any of my said six children leaving no children then my surviving children named in this item to take said child’s share, share and share alike and my executor and executrix are trustees'under this will for all its purposes.”

This is a complete disposition of the estate for and during the natural lives of the children, although restricted in its use by forbidding a division of the same. The last clause relating to trustees does not in terms nor by implication give the executors control of the real estate.

The sixth item of the will empowered the executors to sell or lease any part of the estate and is repugnant to and inconsistent with the devise to the children. Th& two provisions can not stand together, and there seems to be no good reason why the later provisions should defeat the express devise made before, •while there is some reason for holding that the testator intended to make this provision operative during the life of the widow only or as to such contracts and privileges of purchase as were made and granted by him during his lifetime.

The plaintiff is therefore entitled to have her title quieted as against the control of the same by the administrator de bonis non with the will annexed. The judgment will be reversed and judgment entered for plaintiff in error.


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    LIEN OF A SEWER. ASSESSMENT.
    Circuit Court of Hamilton County.
    August Glaeser v. City of Cincinnati.
    Decided, November, 1909.

      Municipal Corporations — Negligence in Enforcing o Sewer Assessment —Lien not Discharged by Foreclosure Proceedings.

    1. A municipality is not a proper party -to an action in foreclosure brought by a building association, and the decree in such a case does . not discharge the lien of a sew.er assessment.
    2. It is gross negligehce for a municipality to fail to prosecute an-action to enforce a sewer assessment for thirteen years -after the answer was filed, hut the lien of the assessment is not discharged so long as the action remains pending.

      Drausin, Wulsin and Wm. J. Reilly, for plaintiff.

      John J. Gasser, contra.
    Giffen, P. J.; Swing, J., and Smith, concur.
   The city was not a necessary or proper party to the foreclosure suit brought by the building association in which the lien for the sewer assessment involved in this case was set up, nor did the court in that suit render any decree in favor of the city. It is true that upon distribution a sewer assessment was ordered paid, but it does not appear that it was the particular assessment here involved. The sum so ordered to be paid never was in fact paid to the city or the contractors for the use of whom this action was commenced. There was nothing therefore in the record of the foreclosure suit upon which the plaintiff in error could rely when he purchased the property upon which the assessment was a lien.

There was gross negligence on the part of the city in failing to prosecute this action for a period of thirteen years from the time answer was filed, and in the absence of Section 2297, Revised Statutes, the rule stated in the case of Fox v. Reeder, 28 O. S., 181, would be enforced; but that section provides that the lien of an assessment shall continue so long as the. action is pending and the right to enforce necessarily follows.

The judgment must be affirmed.


text:
    PROCEDURE FOR RECOVERY OF DAMAGES ON ACCOUNT OF AN ACTION FOR INJUNCTION.
    Circuit Court of Hamilton County.
    The Commercial Tribune Building Company v. the Rapid Electrotype Company.
    Decided, January 29, 1910.

      Injunction — Pleading as to Specific Damages Sustained — Procedure for Recovery of Damages.

    Where the only relief sought in the oringinal petition was an injunction, and upon appeal the injunction was dissolved and the cause retained for an assessment of damages, the filing of a supplemental answer and cross-petition setting forth the specific damages sustained by reason of the injunction is proper procedure; and it is within the discretion of the court to determine the issue as thus presented or to remand the defendant to an action at law upon the bond.

      Johnson & Levy, for plaintiff.

      Mallon & Vordenterg, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The only relief sought by the plaintiff in the original petition was an injunction restraining the defendant, as its tenant, from removing a partition and certain fixtures. Upon appeal to this court the injunction was dissolved, petition dismissed, and. cause retained for assessment of damages, if any sustained by the defendant in consequence of the injunction. A supplemental answer and cross-petition has been filed setting forth the specific damages sustained, the original answer containing a general prayer for damages. The defendant could not, until the injunction was finally dissolved, know to what extent it would be damaged, and this supplemental pleading in no way changes the nature of the relief asked for in the original answer. The question of damages is incidental to the main issue, and arises only upon dissolution of the injunction.

The plaintiff invoked the jurisdiction of a. court of equity, and it is eminently proper that such court should determine all the issues in the case, although it might, in its discretion, remit defendant to an action at law upon the bond. Roberts et al v. Dust et al, 4 O. S., 502.

The motion to strike the supplemental pleading from the files and the demurrer filed in the alternative are overruled.


text:
    AS TO LIGHTING OF STREET CROSSINGS BY INTERURBAN RAILWAYS.
    "Circuit Court of Putnam County.
    The Village of Ottawa v. The Ohio Electric Railway Co.
    Decided, November Term, 1910.

      Classification of Interurban Railways — Fundamentally Different from Street Railways — For-Practical Purposes are in the Same Class as Steam Roads — Subject to the Same Obligations, When — Municipal Corporations — Sections 3162 and. 9122.

    Interurban railways, by analogy of statutes regulating, the nature of business conducted, and mode of operation, now belong to the genus railroads, rather than that of street railways; hence interurban railways are deemed railroads within the meaning of General Code, 3762, and as such may be required by municipal ordinance to light street crossings. State v. Cleveland, 83 Ohio St., —, followed.

      Bailey & Leasure, for plaintiff in error.

      Risser & Smith and Cable & Parmenter, contra.
    Hurin, P. J.; Donnelly, J., and Kinder, J., concur.
   In this action the village of Ottawa sued to recover from the Ohio Electric Railway Co. the sum of $364 for lighting street crossings. The court of common pleas sustained a demurrer to the petition as not stating a cause of action. The plaintiff not desiring to plead further brings the case into this court on error.

The Ohio Electric Railway Co. is an interurban electric railway company operating its ears by electricity on tracks through the village of Ottawa. By Section 3762, General Code, it is provided that:

“When deemed necessary by council of a municipality .to have a * * * railway, located in whole or in part in such corporation * * *- or any portion thereof, lighted, the council shall pass an ordinance for that purpose,” etc.

But it is claimed that this does not apply to street railways and that interurban railways are street railways and, hence, it does not apply to them.

This contention is based upon a very indefinite exception as to street railways contain'ed in the old Section 3309a and which apparently has been repealed and is not now found in the corresponding sections of the General Code, 8801-2-3 and 4.

It is also claimed that at the time of the enactment of the original sections, 2494, Revised Statutes (now 3762, General Code, et seq.), interurban railroads did not exist and hence the statutes relating to the lighting of steam railways could not apply to interurban roads.

A third claim is made that by Section 9122, General Code, “such companies shall be subject to the regulations provided for street railways and have all the powers, in so far as they are applicable, that other street railway companies possess,” and that being thus classed as. street railways, they can not be also classed with railroads, i. e., steam railroads.

With reference to this last claim it may be said that it is very doubtful whether this section applies, or was intended to apply, specifically to interurban railways. It is also evident that the provision-that “such companies shall be subject to the regulations provided for street railways” would not’of itself prevent their being subject to other regulations which might include such regulations as usually apply to steam railways.

But the term “such companies” as used in Section 9122, General Code, apparently refers to the companies mentioned in Sections 9115, General Code, and 9117, General Code, which relate solely and specifically to street railways, 9115 referring exclusively to street railways within a municipality and 9117 extending to such street railways, the right to extend their operations outside of such municipalities, and neither Section 9115 nor Section 9117 nor Section 9122, which refers only to such street railways, can have of themselves any necessary application to interurban railways.

An inspection of the statutes relating to electric railways shows at once that many of them were enacted at a time when interurban lines were unthought of.

The new General Code makes a distinction between street railways.- and interurban railways in Sections 3778-3780, inclusive, these statutes having been passed since the interurban traffic became an important one.

But in our opinion, the statutes which are relied on as proving that interurban lines must be- invariably treated as street ear lines do not justify such an assumption, nor do the decisions of courts bear out this contention.

It is undoubtedly true that in certain respects interurban roads do bear a close resemblances.to city street railways.

As a rule — though by no means an invariable rule. — their cars run singly, not in trains composed of numerous cars.

They are now usually propelled by electricity which happens just now to be the favorite motive power in propelling street cars.

They usually, in entering and passing through cities and villages, traverse the streets as do street cars — while steam lines do not universally do so — though they often do so.

But in many other respects the interurban lines more closely resemble steam lines.

Their traffic is over long distances and from city to city — not as street cars, confined to one city or village, or its immediate vicinity.

Their cars travel at a rate of speed rivalling and sometimes exceeding even the highest speed attained by steam- lines and in fact in some portions of the country the steam lines are substituting electricity, for steam as a - propelling .power, thereby practically becoming electric interurban lines. (They are specifically authorized to do this by Section 8758,. General Code.)

Then too, it is now a common practice for interurban railways to run baggage ears and freight cars and frequently to couple two or moré of such ears together — just like the trains on the steam lines. Thej^ have special cars for carrying live stock and for other heavy freight, for express traffic and for other purposes, no longer confining their business to the transfer of human passengers; and frequently these cars are combined into trains, a practice which is daily becoming more common, indicating a gradual but distinct change in the character of the interurban business,

The high rate of speed attained by electric interurban cars and the increasingly heavy cars now universally in use give to such cars a momentum which makes it increasingly difficult to bring them to a stop within a short distance.

In all of these respects the heavy interurban lines are more nearly year by year approximating the character of the steam lines, and any judicial classification which had its origin in conditions prevailing fifteen or. even ten years ago must now be viewed with caution because of the complete change of conditions. The courts are bound to recognize this process of development, and they are doing so. In our own state this is distinctly apparent.

In the case of Massillon Bridge Co. v. Iron Co., 59 O. S., 179, our Supreme Court held that the statutes of this state relating to railroads are separate and distinct from those relating to street railroads, and the word “railroad” in Section 3208 and in Section 1 of the act of March 20, 1889 (86 O. L., 120, Section 3231-1 Bates’ Statutes, General Code, 8376) does not include street railroads. (These statutes relate to laborer’s liens.)

. And on page 186 Judge Burket says that “the statutes as to railroads do not apply to street railroads unless made to do so by clear inference.”

While that decision related to a road that was -called a street railroad, it in fact was an interurban line between Tiffin and Fostoria. But at* that time the interurban traffic was in its infancy, and the line in question at that time and even at the present time had all of. the characteristics of a street railway and few of those of the modem interurban lines except the one fact of running between two different towns.

The later case of Greene v. Woodland Ave. St. R. R. Co., 62 O. S., 67, holds that Section 6478, Revised Statutes, General Code, 10239 (which related to suits before a justice against a railroad company), had no reference to a street railroad company, but that case had no reference to an interurban railroad company and is not in point.

The case of Cincinnati, Lawrenceburg & Aurora Electric St. R. R. Co. v. Lohe, Admr., 68 O. S., 101, distinctly holds that “an interurban electric railroad is classed as a street railroad by the statutes of this state.”

° But in the opinion in that case (which was a case for damages for alleged negligence resulting in the death of a passenger who was riding in the vestibule of the car and had refused to go inside) Judge Burket clearly bases the statement of the syllabus upon the separation by the phrasing in Section 2780-17, Bates’ Statutes (General Code, 5486-5491) of the street, suburban and interurban railroads from other railroads.

Yet on page 110 of the opinion he with equal clearness recognizes the distinction between street railways and interurban railways. ITe says:

“It seems reasonably clear that while operating the cars of an interurban railroad within a municipality, the regulations and powers of a street railroad company are applicable, but when it comes to running cars of such railroads in the open country, upon a track substantially the same as the track of a steam railroad, and at a high rate of speed, it would seem that the same rules as to negligence and contributory negligence should prevail as are applicable to. steam railroads, and that a passenger standing upon the platform of an interurban ear in the open country, should be held to the same rules as if he were standing on the platform of a steam car. The danger is the same in either ease, and where there is no difference in danger, there should be no difference in the care required, nor in the rights and liabilities flowing from the neglect to observe the' proper care.”

Here we have a distinct recognition by the Supreme Court of the growing approximation of interurban railway traffic to steam railway traffic — of the altered conditions of travel and of the fact that in the country at least, an interurban railroad is practically to be classed as a steam railroad notwithstanding the apparent classification of the statutes.

The case of Commissioners of Ross County v. The Scioto Valley Traction Co., 75 O. S., 548, might be viewed as an authority against this proposition. That was an action to enjoin the defendant from constructing its road across a highway at grade.

It was there held that an interurban railroad, for the operation of cars by electricity and by the tractive friction resulting from their own weight is not within the act of April 25, 1904 (97 O. L., 465), to provide how'railroad and highway crossings may be constructed.

From the foregoing decisions it appears that while the Supreme Court still adheres to the general rule that the word railroad does not, ex vi termini, include street railroads or even interurban railroads, yet the distinction between street railroads and interurban railroads and the approximation in character of the interurban roads to the steam railroads is now well recognized, and as Judge Shauck, C. J., says, on page 559, “obviously the word ‘railroad’ needs not to be used in a strained or unnatural sense to include an interurban road operated by electricity. ’ ’

It appears also from the case of Electric St. R. R. Co. v. Lohe, Admr., 68 O. S., 101, to which I have referred, that where the conditions are identical the courts will apply identical rules — in that ease it was the rule of negligence — but inferentially other rules as well should be applied.

And this was done in that case on the plainly stated ground that “the danger is the same in either case, and where there is no difference in danger, there should be no difference in the care required, nor in the rights and liabilities flowing from the neglect to observe the proper care.”

Possibly this was obiter dicta, but it is good sense, too.

Now apply this statement to the case at bar.

An interurban railroad car passing through a village and crossing its streets with the speed and with nearly the momentum of a steam railroad train is a source of as much danger to the traffic on that street as a train on a steam road would be — possibly a greater danger because of there being less noise accompanying it — less warning to passengers on the street. Why should there be any difference in the care required in crossing those streets?

The provision for lighting the crossing is a provision for the . safety of the public. The conditions being practically the same, whether the railroad is a steam railroad or an interurban railroad, the rule should be the same.

The old fashioned analogy to the street ear is now decidedly a strained analogy and should in all reason be abandoned.

It should in fairness be said that the statutes, 5415, et seq., General Code, still make a distinction between “railroads” and “interurban railroads” as to taxation; but the distinction relates only to the time of making and reporting the assessments for taxation. In other respects the same statutes relate to both kinds of roads, showing that they in fact are of the same class.

But perhaps the controlling decision in this case is the recent one by the Supreme Court in the ease of State of Ohio v. Horace Cleveland, reported in the Ohio Law Reporter of October 31, 1910. It was there held that:

“A statute may include by inference a ease not originally contemplated when it deals with a genus within which a new species is brought by a subsequent statute. Thus a statute making it unlawful to willfully throw a stone at a railroad ear includes -an interurban or traction railway car, although such ears were not known or in use at the time the statute was enacted. ’ ’

This decision effectually answers the remaining objection raised by. the defendant in the ease at bar and in its essence supports all that we have said regarding the applicability of the statute now in question to interurban lines.

But an examination of recent decisions in other states throws additional light on this question. Elsewhere a like evolution of the law is keeping pace with the developments of interurban traffic. As this traffic outgrows its infantile conditions and assumes ever increasing importance, it is held to ever increasing obligations.

In an Alabama ease (Birmingham Mineral Railroad Co. v. Jacobs, 92 Ala., 187; 12 L. R. A., 830), a case involving the standing of a “ dummy line, ’’ the court said:

“A railroad organized under this act of the Legislature, running beyond the corporate limits of - any city or town and through counties is not and necessarily can not be a street railway within the meaning of the Constitution and the provisions of the code in regard to street railways.”

But that decision recognizes such roads as street railways while within the cities.

This case was affirmed in L. & N. R. Co. v. Anchors, 114 Ala., 492, where the question was argued at length and the court in discussing it said:

“Public necessities even within city limits demand increased facilities for travel over the horse car; and many decisions of courts applicable to street railways operated by horses could not be applied without manifest injustice to trains operated by steam or electricity.”

These statements, while not relied on as authority because of the difference in the facts from those in the case at bar, indicate the modern tendency of courts with reference to .the status of interurban lines.

The question has most frequently arisen as incidental to the question whether railroads on city streets constitute an additional burden for which adjacent property owners may recover damages. Street railroads, being for the transportation of passengers solely, are held to be an aid to the purpose fon which streets are designed and are not considered an additional burden, while “commercial” roads are.

In the case of Chicago & N. W. Ry. Co. v. Milwaukee, Racine & Kenosha Electric Ry. Co., 95 Wis., 561 (37 L. R. A., 856), the court held that:

“An electric railway in a village street which forms part of a connecting line between cities for transporting merchandise, personal baggage, mail and express matter, as well as passengers, constitutes an additional servitude or burden upon the lands of abutting owners for which they are éntitled to compensation. ’ ’

And in the opinion in that case such roads are sharply distinguished from street railroads because of the difference in their purposes and methods.

To the same effect is Abbott v. Milwaukee L., H. & T. Co., ' 126 Wis., 634.

The case of Diebold v. Kentucky Traction Co., 63 L. R. A., 637, after a thorough discussion, holds that an electric railway, to be operated between two cities in different states and carry passengers and freight, is a trunk railway — a commercial railway, and not a street railway. It is there said:

“The term ‘street railway,’ as used in Section. 163 of the state Constitution, means, and can only mean, applying to it a common-sense interpretation, those street railroads which, before the introduction of electricity, used mules and horses as motive power for drawing the street cars over its street car tracks, for the use and convenience of the local public in a municipality — those street cars that run along the streets of a city, picking up passengers here and there, and putting them off at street crossings and at the termini of the street car companies’ tracks within the municipality. They were created and organized and operated, and such was their character, as defined in their charters, strictly and exclusively for the local convenience of those persons or passengers whose pleasure or business prompted them to go from point to point within the city. They were never organized or intended for commercial purposes between-different cities within a state, or between different cities in different states. In the case of Louisville & P. R. Co. v. Louisville City R. Co., 2 Duv., 175, Judge Robertson said: ‘A railroad is for the use of the universal public in the transportation of all persons, baggage and other freight. A street railway is dedicated to the more limited use of the local public for the more transient transportation of persons only, and within the limits of the city. In the technical sense, therefore, a street railway is not a railroad. And we presume that, in this eontradinctive sense, the term railroad was used in the appellant’s charter, as amended in I860.’ A railroad and a street railroad are, in both their technical and popular import, as distinct and different things as a road and a street, or as a bridge and a railroad bridge. ’ ’

So, in the case of Zehren v. Milwaukee Electric Railway & Light Co., 41 L. R. A., 575, the same rule was adhered to and, in the course of the opinion, the court say:

‘‘ The street railway, in its inception, is a purely urban institution. It is intended to facilitate travel in and about -the city from one part of the municipality to another and thus relieve the sidewalks of foot passengers and the roadway of vehicles. It is thus an aid to the exercise of the easement of passage; strictly a city convenience for use in the city by people living or stopping therein and fully under the control of municipal authorities, who have been endowed with ample power for that purpose” — and after speaking of the introduction of new motive power and the enlargement of street cars, and the extension of distances for their operation, even connecting separated' cities .and villages, the court said:
“Thus the urban railway has developed into the interurban railway and threatens soon to develop into interstate railway. The small car which took up passengers at one corner and dropped them at another has become a large coach, approximating the ordinary railway coach in size, and has become a part, perhaps, of a train which sweeps .across the country, from one city to another, bearing its load of passengers, ticketed through, with an occasional local passenger picked up on the highway. The purely city purpose which the urban railway subserved has developed into or been supplanted by-an entirely different purpose, namely, the transportation of passengers from city to city, overlong stretches of intervening country. * * * It is built and operated mainly to obtain the through travel .from city to city, and only incidentally to take up a passenger in the country town. This through travel is unquestionably composed of people who otherwise would travel on the ordinary steam railroad, and would not use the highway at all.”

See, also, March v. Milwaukee Light, Seat & Traction Co., 114 N. W., 804.

While none of these cases involve the exact question presented by the case at bar, they all recognize the essential principle that street railways and interurban railways are fundamentally different in purpose and character, that the street railway was designed for local intramural transit solely, and aid to the local use of streets; that the interurban railway is a commercial railway, designed for the transportation of persons, baggage, express matter, mail, freight, etc., over long distances and from city to city, a form of traffic which has no natural relation to the streets of a city or village through which the road passes and which constitutes an additional burden upon their use.

These oases all support the conclusion that for all practical purposes interurban railroads are railroads of the same class as steam railroads and, since they impose an additional burden upon the streets in which they have no natural or inherent rights, they are under similar obligations to those sustained by steam railroads.

One of these obligations, in onr opinion, is that of contributing to the lighting of the streets which they cross, since such lighting is made more vitally necessary by the increased danger to pedestrians and occupants of vehicles thereon by reason of the use of such streets by the ears of such railroads.

Holding these views, the judgment of the court of common pleas will be reversed.


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    INJURY TO A CUSTOMER IN AN AUTOMOBILE GARAGE.
    Circuit Court of Lucas County.
    Charles I. Barnes v. Kirk Bros. Automobile Co.
    Decided, February 3, 1911.

      Negligence — Application of the Principle of Res Ipsa Loquitur — Competency and Weight of Evidence — Error—Presumption—Burden of Proof.

    The doctrine of res ipsa loquitur controls in fixing responsibility for , injuries sustained by a prospective purchaser of an automobile, occasioned during his inspection of the machine by. its sudden and unexpected movement against him while being manipulated and operated by the owner in the garage of the owner. Negligence of the owner in such a case is presumed and the burden of rebutting it is on him.

      Elmer E. Davis and Orville S. Brumback, for plaintiff in error.

      William H. McLellan and Harold W. Fraser, contra.
    Wildman, J.; Parker, J., and Kinkade, J., concur.
    Error to Common Pleas Court.
   This is a proceeding in error to reverse a judgment in the court below, in which Barnes was plaintiff and the Kirk Brothers Automobile Company defendant. It was a suit for a personal injury, and the defendant in the court below, on the trial to a jury, obtained a verdict in its favor.

The claimed error upon which most emphasis is placed in argument, and relied upon as a ground for reversal, is that the verdict is against the weight of the evidence. I believe it to be the consensus of view of the members of the circuit court that no case has ever been presented for our consideration, calling more clearly for the principle of res ipsa loquitur than the case at bar. The circumstances in brief are these: Barnes, the plaintiff, had been invited into the garage of the defendant company to inspect, as a possible purchaser, an electrical car, and while Mr. Edward A. Kirk, the manager of the' defendant company, was manipulating the car and exhibiting it to Barnes, the car was by some means made to move suddenly, and, striking Mr. Barnes, who was standing in front of it, forcibly pushed him against a post and crushed his limb, or severely injured it, that the circumstances justify a claim that the defendant company was negligent. I have said that the court is unanimous in the view that the principle of res ipsa loquitur should apply. We may borrow an illustration by way of analogy from the use of a firearm. A points a loaded gun at B. The gun is discharged, and B receives an injury or is perhaps killed. The gun was charged with gunpowder; the automobile is charged with, electricity. The gun is something which was intended, upon certain manipulations, the pulling of a trigger and the descending of the hammer, to go off, to be discharged. An automobile, upon certain manipulations, is expected and intended also to go off, to start in motion. Neither one is intended to kill some particular person or to injure him. It will not do, under the circumstances of the use of the firearm which causes the injury, for the man who holds it in his control to say, “Although I knew that it was loaded, ’ ’ as Mr. Kirk unquestionably here knew that this automobile was charged with electricity, “and although possibly I pulled the trigger, still I am not blamable, because I did not know that the gun was cocked: I did not know that the hammer had been raised.” If the gun is discharged, the presumption at once arises in the mind of any intelligent observer or any intelligent person who learns of the facts, that the man who had in his control this instru: ment of possible destruction was guilty of negligence. That presumption might be a rebuttable one, or it might not. There are cases of res ipsa loquitur where the presumption seems to have been, held by the courts to be a conclusive presumption, and there are others, as in the case to which I shall refer in a moment, where it is deemed a rebuttable presumption, one in which, while the inference is raised that the person having control of the machinery or the implement or whatever it be that has caused the injury, is guilty of negligence, it devolves upon him, by some explanation, or rebutting evidence, to meet such presumption.

The ease,of the Cincinnati Traction Co. v. Holzenkamp, 74 Ohio St., 379, is sufficiently analogous to justify the application of the same principle to the present case, and in our judgment the case at bar calls far more clearly for its- application than even the one which was under consideration by the Supreme Court. I read the syllabus:

“Proof of the falling of a trolley pole from an electric car, when it stopped at a usual stopping place, upon a person standing there for the purpose of getting upon the car, raises the-presumption of negligence on the part of the traction company, and unless rebutted, the party injured is entitled to recover.”

After considering and disposing of a question sometimes raised, as to whether the principle of res ipsa loquitur will apply to any other than a passenger entitled to protection and to a high degree of care from the common carrier, after, I say, considering and disposing of that question, and holding that the principle is a general one, applicable not only, to cases of passengers, but to other eases, the Supreme Court finally, upon pages 388 and 389, give the result of their consideration to the facts in that case:

“The plaintiff was not only lawfully in the street but she stood where she had an implied invitation from the defendant to stand and i.t was the duty of the defendant to use reasonable care to avoid injuring her” (just as in the case at bar,_ the plaintiff stood in a position where he w-as expressly invited, and where he was entitled to reasonable care on the part of the party inviting him there, to protect him), “and the court was warranted in taking judicial notice of the fact, as it did, that such a thing as the breaking of the trolley pole and the falling of the trolley with a portion of the pole does not happen in the ordinary course of events unless there was some negligence either in its construction or in the management of it, and, this being so, the court very properly charged the jury that the plaintiff in the absence of any evidence tending to rebut the presumption of negligence was entitled to recover for her injuries.”

It is said that in the case at bar there was evidence explaining just how it happened, .that is, explaining everything that Mr. Kirk did, and that the evidence shows that he exercised ordinary care; but to the court it seems that after giving all the explanation that he is able to give as to what happened, he still leaves unexplained, absolutely unexplained, the principal and essential facts necessary to rebut the presumption of negligence. It is a matter of not the slightest consequence whether he started the machine by pulling up the starting plug, or whether he started it by moving the lever; if the other part of the contrivance was not in such a neutral position as to máke it safe for him to mové that particular thing which he did move, then we think that the presumption of negligence arises. Suppose that the man holding the gun says, immediately before he pulls the trigger, not knowing that the hammer is up, “This is how we make it go off,” pointing it at the person who receives the leaden charge. In this case Mr. Kirk says, “This is the way vre start it,” and then he either pulls the lever or he pulls up the' starting plug, and the automobile proceeds, being an inanimate object, to obey the intelligent will of the person who is demonstrating how, when things are in proper condition, the automobile may be started upon its mission. Now it will not do in the case of the firearm for the man to say, “I didn’t know that the hammer was up when I pulled the trigger.” And just so it seems to us it will not do for Mr. Kirk to say, “I didn’t know that the plug was not in a neutral position when I moved the lever,” or to say, “I didn’t kmrw the lever was not in a neutral position when I pulled the plug. ’ ’ In either event it seems to us, that before moving that particular thing which caused the machine to start with its' destructive effect, it was incumbent on him to ascertain whether the machine was in such condition.so-that he could safely do so.

Our conclusion is that this verdict is against the weight of the evidence. In the case to which I have referred, Cincinnati Traction Co. v. Holzenkamp, supra, the Supreme Court held that the trial court very properly charged the jury that the plaintiff, in the absence of any evidence tending to rebut the presumption of negligence, was entitled to recover for her injuries. In the case at bar, the court below charged the jury that the burden was on the plaintiff to show the negligence of the defendant. And while this was true, as a general proposition, we think that that general instruction should have been qualified by a statement, in substance, that the disclosed circumstances, the undisputed circumstances, would raise such an inference or presumption of negligence as called upon the defendant for explanation, and unless evidence was offered sufficient to meet the presumption, not overbalance it, but to meet it, as is said by the court in the case of Klunk v. Railway, 74 Ohio St., 125, it would be ,the duty of the jury to return a verdict for the plaintiff. I will not tarry longer upon this phase of the case. We think the court was in error in the unqualified charge which it gave.

Some argument has been made to us that if it be unexplained as to just what the trouble was, whether it was by' reason of some carelessness of Mr. Kirk, or, on the other hand, some defect in the machine, and there being no defect in the machine charged in the petition, therefore the plaintiff would not be ¡entitled to recover. But this argument does not address itself-'to us as having substantial force, in view of the fact that there' is-no evidence in the case tending in the slightest degree to show that this machine was defective in any manner. It was a new- machine; it had been tested to some extent, 'we " understand, and there was nothing anywhere about it to indicate .that it was defective. No one has claimed that it was in fact defective, and there was nothing to go to the jury on the subject.

Some questions of error have been raised by the rejection of evidence -offered by plaintiff. We think that the plaintiff procured the introduction of all such evidence in the way of impeachment as he was fairly entitled to, the court permitting to go to tbe jury tbe statement of Kirk that he had forgotten 'about the lever or plug,' whichever it was, and also his statement as to being to blame for the accident. The court properly did not permit considerable other evidence with regard to the company’s carrying insurance, and the effort of Mr. Kirk to forward the claim of Barnes for the purpose of getting 'Barnes the insurance.

It does not 'appear to us that there is any other matter in the record that would justify a reversal. If the language was used to the jury in argument by defendant’s counsel which is claimed by the plaintiff to have been used, it was misconduct and the court should have reprimanded him at the time for it. The Supreme Court, however, has held, as reported in State v. Young, 77 Ohio St., 529, that the remarks of counsel in addressing the jury, to be the basis of a proceeding in error upon the ground of misconduct of counsel, must be brought into the record of the trial by the certificate of the trial judge, as are other matters occuring upon the trial and in open court. They can not be shown by affidavit. In the present case, they are introduced only by affidavit, and the certificate of the trial judge does not disclose that the language complained of was used.

It is said that the court erred in not giving certain requests which the plaintiff asked, but we find no exceptions in the record to the refusal to give such requests.

We find no reversible error in the record other than the two errors I have assigned as the ground for reversal, that the verdict is against the weight of the evidence entitling plaintiff to a new trial, and that the court did not qualify the general charge to the jury in the manner suggested. The case will be reversed and the cause remanded for a new trial.


text:
    SALARY OF POLICEMEN CAN NOT BE INCREASED OR DIMINISHED.
    Circuit Court of Lake County.
    State, ex rel Spaller, v. City of Painesville et al.
    Decided, October Term, 1910.

      Policemen are “Officers" — Salary of Policemen Can Not be Increased or Diminished During Term of BHs Appointment — Sections 4213- and 4124 — Ordinances.
    1. A duly appointed patrolman of the police department of a city is an officer within the meaning of the laws of Ohio.
    2. A city council has no power to increase or diminish the salary of a police officer, appointed under the civil service provisions of the municipal code, during the term for which he was appointed which is during good behavior.

      Harry E. Hammer and Homer Harper, for plaintiff.

      J. B. Burrows, contra.
    Fillius, J.; Metcalfe, J., concurs; Laubie, J., not sitting.
   This is a proceeding in mandamus brought upon the relation of Mr. Spaller against the city of Painesville, the city auditor and city treasurer, to compel th.e auditor to issue and deliver a warrant and voucher to the relator in his favor for the amount which he claims due him for salary as policeman and to compel the treasurer to pay such warrant.

The facts set forth in the petition and relied upon to secure the writ are briefly as follows:

The relator states that the city, by an ordinance duly enacted in July, 1903, fixed the salary of a patrolman of the police department of the city at $720 per year, and that this ordinance remained in full force and effect thence until December 18, 1907; that on October 12,1903, the relator was duly appointed a patrolman of the police department of the city for and during the period of good behavior under and in pursuance of the rules of the civil service and laws of the state of Ohio governing police.-departments of municipalities, and that he qualified and entered, upon the discharge of his duties, at the salary above named.

That thereafter- and on December 18, 1907, while the relator was holding and performing the duties of his office, the council of the city of Painesville passed an ordinance increasing his salary and pay-from $720 to $840 per year.

That he continued in his office of patrolman under his original appointment, and that on January 12, 1910, the defendant city, by its council passed an ordinance assuming to reduce his salary from $840 as fixed by the ordinance of 1907 to $720 per annum, being the amount at which his salary was fixed when he entered the service of the city as patrolman.

That since the enactment of the last named ordinance, the city has refused to pay him the difference between $720 per annum and $840 per annum; and that there is now due and payable to him from the -city the sum of $90, and that the city wrongfully refuses to pay him, and that there is money in the police fund of said city which can be properly and lawfully appropriated to the payment of his claim, and he prays that a writ of mandamus be issued commanding the' city through its proper officers to issue a voucher to him for the sum of $90, and commanding the proper officer of the defendant, to-wit, its treasurer, to pay the same.

To' this petition the city by its city solicitor has filed a general demurrer.

We understand this to be an- amicable proceeding to test the question whether the city had, first, the right to raise this patrolman’s salary from $720 to $840, by the ordinance of December, 1907, and second, whether having thus raised it, it might lawfully reduce his salary from $840 down to $720, what it originally was, as it undertook to do by the ordinance of January 12, 1910.

Copies of the ordinances relating to this controversy are attached to the petition.

Ordinance No. 519, passed in July, 1903, seems never to have been expressly repealed, for in the succeeding ordinance No. 703 passed in December, 1907,' there is no repealing clause, and if the former ordinance is repealed it is only so by implication.

But ordinance No. 793 passed January, 1910, expressly repeals ordinance No. 703 passed December 18,1907, and all other ordinances inconsistent therewith are repealed.

The demurrer to the petition raises the question -whether .the city council of Painesville was authorized to pass the ordinance of December, 1907, thereby increasing the pay of the relator as one of the patrolmen of the city from $720- a year to $840 a year.

Whether the city council had the power to pass that ordinance must depend upon whether it was forbidden by statute to increase or diminish the salary of a patrolman of the city from what it was when he entered upon the discharge of his duties in 1903.

This raises the question of the proper construction to be given to Section 126, municipal code,' which is the section Jn force at the time the relator became ah employe of the city and so far as it is important in this connection is as follows:

“The council shall fix the salaries of all officers) clerks and employes in the city government, and, except as otherwise provided in this act, all fees pertaining to any office shall be paid into the city treasury. The salary of any officer, clerk or employe so fixed shall not be increased or diminished during the term for which he may have been elected or appointed. ’ ’

In construing Section 126 (General Code, 4213) it is well to bear in mind Section 227 (General Code, 4214), which provides as follows:

‘‘ Council shall by ordinance or resolution, except as otherwise provided in this act, determine the number of officers, clerks and employes in any department of the city government, and shall fix by ordinance or resolution their respective salaries and compensation and the amount of bond to be given for each officer, clerk or employe in any department of the city government,, if any' be required.”

It appears from the foregoing provisions of the code, that it was the duty of the council not only to fix the number of officers, clerks and employes in any department of the city government, but also to fix by ordinance or resolution their respective salaries.

The above provisions of the municipal code of 1902 marked a departure from what the law had previously been in that they expressly prohibited the city council of any municipality from increasing or diminishing the salary of -any- officer, clerk or employe of the city whose salary had been fixed, during the term for which he was appointed.

The code-of 1902 made a new departure in another respect. It provided for a merit system and divided the civil service of a city into a classified and an unclassified service. The police department and the persons employed therein were in the classified service and appointments thereto must be made according to the merit system as defined and provided for in the code, and when a person was once appointed to any office in any department under the classified service, he can not be removed, reduced in rank or discharged, except for some cause relating to his moral character or his suitableness to perform the duties of his position, though he may be suspended from duty for a period not exceeding thirty days pending the investigation of charges against him.

The legal effect of these provisions is, we think, that when the relator was appointed to the office of patrolman in 1903, he was appointed to serve in that capacity during good behavior, within the terms of -the statute providing for his removal.

The purpose which the Legislature had in mind in adopting the merit system and in making appointments to the police force during good behavior is well stated in the case of State v. Baldwin, 77 Ohio St., 532. The court in that case speaking by Summers, J., says, page 551:

“The evident purpose of the Legislature respecting the police and fire departments, as indicated by the provisions relating to them in the new municipal code, was to adopt a civil service or merit system. The chief of police is made the executive head of the department under the direction of the mayor. He is given the exclusive right to' suspend any of the deputies, officers or employes under his management or control, and in case of suspension, he is required to certify such fact, together with the cause of such suspension, to the mayor, who then finally determines the matter, excepting that an appeal may be taken to the board of public safety in case the judgment of the mayor is one of removal. The mayor is given the exclusive right to suspend the chief of the police department, and in the event he suspends^ the chief it is his duty to certify such fact, together with the cause of suspension, to the board of public safety and it is given final jurisdiction. And it is made the duty of the mayor to prefer charges with council against any director of public safety for incompetency, neglect of duty, malfeasance in office, habitual drunkenness, or gross immorality, and it is made the duty of council to inquire into the charges, in the manner provided for the removal of other officers of the municipality. Evidently it was thought that it would be conducive to the discipline or efficiency of the department, respecting the members of the police force, if the exclusive power of suspension should be vested in the chief of police, and if the mayor should not have original jurisdiction to remove members of the force, but only in the event of charges being certified to him by the chief. If the chief fails in his duty the exclusive power of suspending him is vested in the mayor, and he may suspend him and certify the fact to the board, so that the board of public safety does not deal directly with the members of the force or with the chief of the police, but exercises its control through -the mayor, and the mayor does not deal directly or immediately with the members of the force but with the chief of police, and the chief is given immediate control of the men. This method seems to have been evolved from experience. But the wisdom of it, or effectiveness of it, is not matter for our consideration. We have only to determine what the Legislature in its wisdom has prescribed. ’’

And it seems to us that it was directly in line with this policy that the Legislature enacted Section 126 providing that the salary of any officer, clerk or employe fixed by it shall not be increased or diminished during the term for which he may have been elected or appointed.

The object and purpose of it evidently was that the officers, clerks and employes included within its terms should be independent of the whim of the council or the influence of public officials to the end that they might without fear of loss of pay or loss of office, perform the duties devolving upon them. And, upon the other hand, that city councils should likewise be free from the importunities and harassments of office holders, appointees and employes for increased compensation.

Perhaps with the wisdom or policy of the statute we have nothing to do, except as it may aid us in arriving at a true interpretation of its meaning.

Taking the two Sections, 126 and 227, together, the first question suggested is whether a patrolman is an officer and whether he is included within the provisions of Section 126. The terms of the statute are very inclusive, and it would seem that they were intended to include everybody employed in the city government; and that meaning would seem to be borne out very strongly by the terms of Section 227, which provides that the council shall determine the number of officers, clerks and employes in any department of the city government and shall fix by ordinance or resolution their respective salaries.

If, indeed, a patrolman be not an officer, then it would seem that he certainly would come within the meaning of the other term, an ‘ ‘ employe. ’ ’

It seems to us quite clear, however, that he is an officer, and so it has repeatedly been held. See 6 Words and Phrases, 4945.

In our own statutes a policeman is repeatedly referred to as an officer. For instance, in General Code, 5251, it is provided that the commanding officer of any regiment, batállion, company or troop may authorize in writing any constable or police officer of the city, village or township to arrest any delinquent member of the regiment. Again, in General Code, 5276, it is provided that any person who engaged in disposing of spirituous or other intoxicating liquors near an encampment of soldiers may be put under guard by the commanding officer who may turn such person over to any police officer of the village or township. Again, General Code, 13478, provides that .when a sheriff, constable, police officer or any agent for any duly incorporated society for the prevention of cruelty to animals has reason to believe, etc., he may cause a person to be arrested, and in General Code, 13474, it is provided that when a sheriff, constable, marshal or other police officer has reason to believe that any person is about to engage in a prize fight, he shall arrest such person.

Thus it seems that a patrolman or policeman is generally recognized in our statutes as an officer and is referred to as such. He is employed in one of the most important departments of the city government. He is the" guardian of the peace of the city. He has important powers conferred upon him. He may arrest any citizen for an offense committed in his presence without warrant. And it seems to us that he properly comes within the designation of the term ‘ officer. ’ ’ But, if not, it would seem that he .certainly comes within the designation of the term ‘ ‘ employe. ’ ’

But the increasing or diminishing of the salary of an officer or employe is limited to the term for which he is appointed, and it is suggested that a patrolman is not appointed for any term. If this be so, it would seem that he might be discharged at any time without violation of any statute and his place filled by another appointee. But in view of the fact that a patrolman once appointed serves until he is removed for cause, it necessarily follows that he is appointed for a term, to-wit, for. that period of time during which he is permitted to hold his office.

People v. LeFevre, 21 Colo., 218.

In this case the relator is permitted to hold until he becomes unfit to discharge the duties of his office, and he can only be removed when such unfitness is determined by the proper officers in the manner provided by the statute. In effect, it seems to us, this gives him a term of office during his fitness therefor, and if that continues so long as he lives, it gives him a term of office for life.

Having reached this conclusion, it necessarily follows that the relator’s salary being fixed by ordinance at the time he entered into his office and upon the discharge of the duties thereof, the city council was without authority by ordinance or otherwise to increase or diminish that salary during the time he occupies the office, unless subsequent legislation has changed the effect of Section 126.

It is however suggested that the Legislature in 1908 in enacting Section 166 (General Code, 4487) has by implication at least, repealed the provisions of Section 126 with respect to increasing or diminishing the salaries of an officer or employe. Section 166 provides as follows:

“No officer, secretary, clerk, sergeant, patrolman, fireman or other employe, serving in the police or fire departments of any city of the state, at the time this act goes into effect, shall be removed or reduced in rank or pay, except in accordance with the provisions of Section 152 of this act. ” General Code, 4379, 4381.

As we view and construe this section, it seems to us clear that instead of effecting a repeal by implication or otherwise, of the provisions of Section 126, it is in entire harmony with the provisions of that section.

It will.be noted that Section 166 says nothing whatever about increasing the pay.of an officer, and nothing about reducing his pay, except in accordance with the provisions of Section 152 of this act. Now Section 152 relates entirely to the method of procedure in case of removal of officers and employes in the police and fire departments for incompetency, gross "neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given by the proper authority, or for any other reasonable or just cause; and in such case the officer may be suspended by the proper officer and upon the charges against him being sustained, removed ; and it was evidently the purpose of Section 166 to provide that the pay of an officer might be reduced by and under proceedings had by favor of Section 152. In other words, a policeman might be suspended and during his suspension his pay might be reduced or entirely taken away, and if permanently discharged his pay might be entirely cut off.

Thus considered, these two sections of the statute are in entire harmony, .and both conduce to exactly the same end; namely, the good of the service and to protect the officers of these two departments against- unwarranted interference with their salaries by way of reducing them, and upon the other hand, to take away from such officers the temptation to be constantly using their influence and office to secure increased emoluments.

We therefore conclude that the effect of these statutory provisions is to take away from the city council of the city of Painesville the right to increase or diminish the salary of the relator, and that when it undertook to increase his salary by passing the ordinance of December, 1907, it undertook to do that which it was denied the power to do by express enactment and the ordinance was therefore so far void; and that so far as the ordinance of January, 1910, is concerned it may be regarded as valid because it does not in any manner affect the salary which the relator was entitled to receive under the ordinance of 1903.

For these reasons, the demurrer to the amended petition is sustained, and it being understood that the relator does not wish to plead over, it is the order of the court that the petition be and it is hereby dismissed, at relator's costs.