text:
    (Fourth Circuit — Butler Co., O., Circuit Court
    Sept. Term, 1885.)
    Before Judges Smith and Stewart. (Judge Stewart, of the Second Circuit, taking the place of Judge Cox, and Judge Swing not sitting.)
    Geo. Rupp v. Mrs. Phillips, and the Trustees of the Universalist Church of Hamilton, Ohio.
    Effect of the judgment of the supreme court in a proceeding in error, to reverse the judgment of the district court, where the reviewing court proceeds to render the judgment the trial court should have rendered, on rights acquired by the parties after the judgment in the district court.
   Smith, J.

In this case two questions arise and have been argued, viz.: First, whether the judgment of the supreme court of Ohio, rendered at the January term thereof, 1885, in an action in which all of the parties to this suit were before that court, finding that Mrs. Phillips was entitled at any time to take certain property at the appraisement, and, upon payment, to become entitled to the immediate possession thereof, is binding upon the parties to such suit. Or whether, as claimed by the counsel for the plaintiff here, so much of said judgment as was entirely outside of the issues made in the original case, was not properly before the court for decision, and is therefore not binding.

And second, if the question was properly passed upon by the supreme court, how far it is now binding upon the parties to such case, in view of the decree of the court of common pleas of this county made in 1883, in a case in which Mrs. Phillips was the plaintiff, and Rupp was the defendant.

A brief recital of the facts is necessary to a proper understanding of these questions. In 1879, Mrs. Phillips filed in the court of common pleas of Butler county her petition against Rupp and the trustees of the said Universalist Church, alleging her right, under a1 certain contract made between her ancestor, McBride, and the grantors of said defendants, to have certain real estate in Hamilton, or rather the buildings and improvements thereon, appraised as specifically pointed out in said contract, and if she elected so to do, to pay the value thereof and then become the sole owner of the real estate and the improvements thereon. That the contract provided that this appraisement was to be made by a board, one of whom was to be selected by the original lessor, McBride, or his legal representatives, and the other by the other parties to the contract, or their legal representatives, and the two thus selected were to chose a third. That Rupp, by assignment, was in possession, and claimed the-lower story of the building, and the trustees of said church were in possession and claimed the second story thereof, which was used as their church building. That each of said parties claimed to be the one entitled to select the appraisers, and that if Mrs. Phillips elected to purchase the building at the appraisement, both parties claimed the whole of the purchase price. That she could come to no agreement with them, and she therefore sought to have them interplead, that her and their respective rights in the premises might be adjudicated by the court.

Answers were accordingly filed by the defendants setting up their respective claims, and a decree of the common pleas was entered in favor of Rupp. On appeal to the district court, substantially the same decree was entered in April, 1881.

No petition in error to reverse this judgment was filed to the supreme court for nearly two years ; and before it was done, Mrs. Phillips commenced an action in the court of common pleas of this county against Rupp alone, to have an appraisement of the improvements made so that she might exercise her election.

A decree was accordingly entered and the improvements appraised, and by a subsequent decree, it was adjudged that unless Mrs. Phillips should, within 30 days, pay to Rupp the appraised value of said improvements, that she was to be barred from taking them under that appraisement by the court — if she did pay it she was to be entitled to the property —if not, that Rupp was to continue to occupy his part at a fixed rent. There were other provisions in this decree relating to the future appraisement of the improvements, and as to the meaning of which counsel here differ — the claim of the counsel for Rupp being, that if Mrs. Phillips did not pay the valuation fixed by the court within 30 days, that by the terms of the decree Rupp was to be entitled to hold the property at a fixed rent until 1889, which construction of the decree is denied by counsel on the other side.

Mrs. Phillips did not pay the appraised value within the 30 days fixed by that decree, and in 1885, the supreme court in the error case before mentioned, reversed the judgment of the district court, and proceeded to render the judgment it found that court ought to have rendered, viz: That as between Rupp and the Trustees of said church, the latter were entitled to join in the selection of appraisers, and on the election of Mrs. Phillips to pay for the improvements, they were entitled to receive the money.. It further adjudged that Mrs. Phillips was entitled at any time to have such appraisement made and to make her election, and, on her payment of the money, full possession of the property was to be rendered to her by the said Trustees and by Rupp.

The action now before this court is one in which Rupp seeks to enjoin the carrying into effect the judgment of the supreme court on the grounds stated. He alleges that an appraisement has been made and the money paid by Mrs. Phillips to the Trustees, and that she is attempting to get possession of his part of the premises by proceeding in forcible detainer, and he seeks to enjoin this proceeding and have the court adjudge that he is entitled to the possession of the premises until 1889 for the reasons stated.

As to the first of these points, we find from a consideration of the evidence offered, that the questions which were adjudicated by the supreme court, as to the title of these parties and the right of Mrs. Phillips to have an appraisement of the improvements made at any time, and to elect to take them, were properly before the court, and the judgment as entered was binding upon the parties and upon this court.

Thomas Millikin, for plaintiff.

Morey, Andrews & Morey, for defendants.

As to the second point, we are entirely in accord with the views of the counsel for the plaintiff here as to the law of the case. That is, the district court having made a decision as to the rights of these parties in 1881,and the case having gone on error to the supreme court on the evidence produced on that trial, and the parties having had no hearing in the supreme court as to any rights acquired after 1881, that the judgment of the supreme court speaks as of the date of the judgment reviewed, and fixes the rights of the parties as they were at the date of the decree in 1881, and, as a consequence, as they were at the date of the judgment in the supreme court, unless such rights have, in some way, been changed since the decree of 1881. Of course, if Rupp and Mrs. Phillips had, after the date of the decree in the district court, changed their rights as to each other— as if, for instance; he had bought out her entire right to the property, or if by force of a valid decree of a court, the rights of the parties in other respects had been adjudicated and changed, the decision of the supreme court ought not and would not operate to divest said rights so acquired. 25 N. Y., 616. Freeman on Judgments, 329,380.

But while this is conceded, on examination of the decree of 1883, we see nothing in it which gives to Rupp any other or different rights to this property than he had in 1881, at the time of the decree of the district court, or that gives to him any right to the use of it until 1889. On the contrary, we think it clear from the terms of the decree itself, that the right of Mrs. Phillips to have the appraisement made, and to make an election to take it, and on payment of the money to become immediately entitled to the whole property, at any time, is expressly granted and conceded.

The petition is therefore dismissed with costs.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit — Butler Co., O., Circuit Court
    Sept. Term, 1885.)
    Before Judges Smith'and Stewaet; (Judge Stewart, of the Second Circuit, taking the place of Judge Cox, and Judge Swing not sitting.)
    C. C. C. & I. Railway Co. v. John P. McLean.
    Action against a railroad company — where to be brought, and how summons served, when defendant’s road, running through the county where suit is brought, is held by lease, and not absolutely.
    Effect of motion to quash summons and return thereof in such case, on the grounds that the court has no jurisdiction of the action for the reason that defendant’s road does not pass through such county, and because the summons is not properly served.
    Questions of evidence, and of what the .court will take judicial notice. Qwere: Rights of conductor and of passengers in certain cases.
    Effect of consent of plaintiff to an entry of a remittitur of a part of his verdict, and to which he also excepts.
    Error to the Court of Common Pleas of Butler County.
   Smith, J.

The claims of the parties in the court below, were substantially these: McLean in his petition, filed against the railway company, alleged that it was a corporation duly organized under the laws of this state, and that on the — day-, 1885, it was the owner and occupier of a railroad line from Cleveland, Ohio, to the city of Cincinnati, Ohio, which road passed through Butler county, and was used as a railroad by defendant company, and that on said day, he had purchased from the ticket agent of said company at Franklin, Ohio, a ticket from that point to Springfield, Ohio, and took the train. That on the way to Dayton, he was directed by the conductor to leave that train at Dayton, and take the one which arrived there a few minutes after his train; that he did so, and found all of the seats occupied, and could not obtain one. That after passing Dayton, the conductor of the train came to him and demanded his ticket; that he held it in his hand and showed it to him, but told him he would not give it up unless he was furnished with a seat; that the conductor again demanded his ticket, and on being refused, in a rude and violent manner seized him, and wrenched the ticket from his 'hand, spraining his wrist and otherwise injuring him.

The answer of the defendant denied the assault, but alleged that the plaintiff presented the ticket to the conductor, who took it, without using any force whatever. That the plaintiff at the station in Dayton, saw, that by reason of an excursion (unexpected by the company), the seats were all filled, and that he could not procure one; but with this knowledge, he remained upon the train, and thus elected to become a passenger thereon and accept such accommodations as he could find, and that by so doing, he became a wrongdoer in refusing to give up his ticket; and that the title thereto became vested in the company, and the conductor had a right to take the property of the company, using no more force than was necessary, and that no more was used.

The summons in the case was served upon the ticket agent of the defendant company at Monroe Station, in said county. Before the filing of an answer by the company, it filed a motion (while protesting' the defendant came for the purpose of the motion only, and not as entering an appearance in the case) for the quashing the summons which had been issued, and of the service made thereof, on the ground that the court had no jurisdiction of the case, for the reason, that no part of the defendant’s road passed through Butler county, and that the service on the ticket agent at Monroe was not a good service, or as required by statute.

In support of this motion an affidavit of an attorney of the company was filed, alleging that the road of the defendant company only extended from Cleveland to Springfield. That some years ago the defendant company became the lessee of The Cincinnati & Springfield Railway, extending from Cincinnati to Springfield, and that this is the road which passes through Butler county — and other testimony was heard. The court overruled the motion, and the defendant took a bill of exceptions, stating that the evidence heard on the motion, was the affidavit referred to, and the original petition in the case, the summons, and the return of the sheriff thereon. The affidavit is made part of the bill and attached thereto. The other papers referred to are not.

On the trial of the case the jury returned a verdict for the plaintiff for $672. A motion for a new trial was filed by the defendant, on the ground that the court erred,in its charge to the jury, and in its rulings on evidence, and that the verdict was against the weight of the evidence. No claim was made that the damages were excessive. The court, on the reasons assigned, refused to grant a new trial, but finding that the damages were excessive, adjudged that a new trial should be awarded, unless the plaintiff would remit the one-third thereof.

The plaintiff excepted to this action, but consented to and did remit all of said verdict but the sum of $448, and the court then overruled the motion for a new trial and rendered a judgment for the said sum of $448 and costs, to which defendant excepted and presented its bill of exceptions, containing all of the testimony given, with exceptions to the ruling of the court on questions of evidence during the trial, and on these two bills of,exceptions the many points presented in the petition in error arise.

The first question for consideration is, whether the court erred in refusing to quash the summons issued. There are several reasons why we think the court did not err in this. In the first place, it is questionable whether the bill of exceptions taken on this point can be looked at on the questions ot fact, as not containing all of the evidence submitted to the court. We suppose that a paper in the case, if offered in evidence on a trial of any question, or a copy of it, must go into a bill of exceptions the same as any other paper, if the reviewing court is called upon to judge as to the correctness of the decision of the trial court on a question of fact.

2. That the effect of the motion itself is to enter the appearance of the defendant to the action, and thereby fully to give the court jurisdiction of the defendant as it had of the subject matter. Handy v. Ins. Co., 37 O. S., 367; Elliott v. Lawhead, 42 O. S., —. See Law Bulletin, Vol. 13, 602.

3. But on the facts shown by the bill of exceptions and the papers referred to therein (if the bill is to be considered), which show a lease and an actual operation, by defendant company, of,.this line from Cincinnati to Springfield, which runs through Butler county, we are of the opinion that the suit, under section 5027, revised statutes, was properly brought in this county, and that it is not necessary to give the court jurisdiction in such case that the line passing through the county should be absolutely owned by the defendant — that a title by lease, and a user of it as a railroad, is sufficient, and that service may then be properly made on a regular ticket agent of the company in the county under the provisions of section 5044, revised 'statutes.

Did the court err in the admission of evidence over the objection of the defendant? It is argued that it did in, at least, three particulars: First: In allowing the plaintiff to state the purpose of his trip, viz., that he had started to reach a point beyond Springfield, there to transact some business. Second : In allowing him to testify as to his physical condition at the time of the alleged assault upon him, and that he was then suffering from disease; and third, to testify that when he entered this train of cars at Dayton and found all of the seats' occupied, that he inquired of a brakeman, at that time passing through the car, whether another car would be added to the train, and the reply of the brakeman that there would, no evidence having been offered to show any authority of the brakeman to bind the company, or to show the nature of the duties of such a servant of the company. [

As to the first of these assignments, we are of the opinion that no issue having been raised as to the fact that the plaintiff was an ordinary passenger on the train, there was no call upon him to offer proof of this kind. That it may have been admissible, however, to show his bona fides, but that the answer given could not have operated to the prejudice of the defendant.

2. That it is admissible, in an action to recover damages for a personal assault, to show, as tending to throw light on the question of the amount that should be recovered, the physical condition of the defendant at the time of the assault upon him, and that, owing to disease, the effect upon him was greater than it otherwise might have been.

As to the third point, viz., as to the admissibility of the evidence as to the conversation with the hrakeman at Dayton, the court, as constituted, has doubt. Judge Stewart is of the opinion, that in accordance with the 'argument of the counsel for the defendant, that the court is to take judicial notice of the duties and powers of a conductor of a passenger train, that like notice should be taken of those of a brakeman on such train ; and that, as the general experience is, that we see such servants assisting passengers on and off the cars and finding them seats therein, and when additional cars are to be attached to a train, assisting in that work, they are thus in position to know of such matters, as (in this case) the brakeman was asked about, and to give an answer which would bind the company.

And there is force in the suggestion. But I incline to the opinion that the law as stated in the books hardly warrants this view, or justifies the court in taking judicial notice of the powers and duties of the subordinate servants of a corporation. The doctrine seems to have grown up that there are some officers of corporations, whose general authority will be implied or presumed by the courts from their title alone. Thus, the cashier of a bank, or the president, general manager and superintendent of a railroad company, will be presumed to have very general authority to bind the company he or they represent. But so far as I can see, the rule does not go beyond this, and the general proposition of course is, “ that what one man says,‘not upon oath, can not be evidence against another man.” The exception must arise out of some peculiarity “ of situation, coupled with the declarations made by one.” 1. Wharton’s Evidence, sec. 1175. And the declaration of a brakeman, not made while in the discharge of a particular duty and with respect thereto, seems to me to be hearsay, unless it be shown he was authorized so to speak by the company. See Abbott’s Trial Evidence, 42 and 44, as to judicial notice in such cases. The question arises then as to the pertinency or materiality of the evidence, and whether it could have been prejudicial to the defendant; but we incline to the opinion, that in one point of view at least, it was material, and if improperly received, therefore prejudicial. If the brakeman was authorized to speak for the company, the plaintiff was authorized to rely upon what he said and remain upon the train expecting to get a seat in f¡he added car, and in such case the jury might have properly found, that he had not elected to become a passenger and waive his right to a seat, and therefore was not in the wrong in refusing to give up his ticket to the conductor, and thus the amount of the recovery, if any, might have heen affected. But the court, not being fully agreed that there was error by the trial judge in the admission of the evidence, the exception is not sustained.

The trial judge charged the jury, substantially, that if the plaintiff, when he entered the car at Dayton, found that he could not obtain a seat therein, but voluntarily remained there, that he thereby elected to become a passenger on such train and accept such accommodations as he could find (unless he had been informed by an authorized agent of the company that an additional car would be added to the train), and that when the conductor called upon him for his fare, it became his duty to pay the same, or tender a ticket therefor, and on failure to do so, he became a wrong doer, and that the conductor might have lawfully stopped the train and put him off. But that he had no right whatever, on the refusal of the plaintiff to give up his ticket, to seize him or his ticket and take it from him by force, any more than he had to take the money from his pocket against his will, and apply it to the payment of the fare.

To this charge as given, and the refusal by the court to charge the converse of it, put in a variety of ways, the counsel for the defendant excepted; but we are entirely satisfied that the law as given to the jury by the court on this point was correct and proper. The fact that a person who enters upon a train as a passenger, has a ticket in his possession which entitles him to a passage thereon, does not in any manner operate to transfer the title thereto to the company. When the proper officer demands the fare, the passenger may satisfy the demand by a tender, either of the ticket, or of the proper amount of the fare. The election as to how it shall be done, rests with him, and the fact that he may notify the conductor that he holds such a ticket, and even show it to him, stating that he will not give it up, does not authorize such officer to take it from him against his will.

The defendant asked the court to instruct the jury, that if the plaintiff, by the exercise of proper care, could have avoided the injury, that he could not recover. This, we think, was properly refused. The rule which the court was asked to give to the jur}', applies to a case in which the plaintiff claims damages for the negligence of thejdefendant,and in which the latter claims that the negligence of the plaintiff contributed to the injury sued for, and not to one where damages are claimed for an illegal assault. The conduct of the plaintiff in such last case, at the time of the alleged assault, may be shown, to establish the fact that the defendant is not guilty, as for instance that he acted in self-defense ; or to mitigate the damages, if there was provocation therefor by the plaintiff. But even if the assault is provoked by the plaintiff, and he might have avoided it, this does not operate as a defense and absolve the defendant from liability therefor.

Thos. Milliken, for Railroad Company, plaintiff in error.

Morey, Andrews & Morey, for McLean, defendant in error.

The defendant’s counsel asked the court to charge the jury, “ that if the plaintiff refused to give up his ticket, and the conductor simply took hold of it and took it out of his hands, without committing an assault, no action lies.”

At first view it would seem that this charge might properly have been given; that is, if no assault was committed no action lies. But we think, on consideration, it was properly refused. It is, in effect, asking the court to charge the jury that if an assault was committed upon the plaintiff by taking the ticket, when he refused to give it up, without committing an assawii upon him, then no action lies — which was inconsistent and calculated to mislead the jury.

The assignments of error then, made by the plaintiff in error, are not sustained. So 'far as the cross-petition in error of McLean is concerned, it appears that to save himself from the risk of a new trial, he expressly agreed to, and did enter a remittitur of a part of his verdict, and consented to have judgment for the residue, which was so rendered. He has obtained the advantage he sought, and he cannot now object to what was done. If there was' error in the action of the court, he has waived it, and must abide by what he has consented to. The judgment of the court of common pleas is affirmed, with costs, As to the cross-petition in error, the judgment is also affirmed at costs of McLean.


author: Cox, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    October Term, 1885.)
    Before Judges Cox, Smith and Swing.
    The State of Ohio, on Relation of James C. Richardson v. Daniel J. Dalton, Samuel Bloom et al.
    In mandamus, the petition is under section 6743 Rev. Stats.; the pleading in the case of relators, instead of the writ as formerly.
    This petition may, on motion, be required to be made more definite and certain.
   Cox, J.

In this case, objection is made by the defendants that the writ of mandamus does not contain all the facts necessary to make a proper case, and it is claimed that neither the petition, nor affidavit can be used to supplement the writ; that the petition is no part of the pleadings.

Numerous decisions of the supreme court are cited to us to sustain their view. Undoubtedly, this was the law at the time those decisions were rendered; but the code adopted in 1880, left out the former provision, that the writ and answer shall contain the whole pleadings” (Rev. Stats., 6743), and provided that the application for the writ must be by petition in the name of the State, on the relation of the person applying, and verified by affidavit (Rev. Stats., 6747). The writ shall be issued by the clerk of the court, and shall contain a copy of the petition, certificate and order of allowance.

This statute, therefore, makes the verified petition, the pleading on the part of the relator, and requires that the petition, affidavit and order of allowance shall be embodied in the writ, thus making the writ simply a medium through which the petition, affidavit and order are conveyed to the notice of the defendants.

It is to the petition that we are now to look for what may be necessary averments to sustain the action, and what was formerly necessary to be in the writ as a pleading in the case, must now form part of the petition, and be copied into the writ and served on the defendant.

A motion .has been made by defendants to require the relator to make his pleading more definite in several particulars,, by stating the facts on which he relies.

The supreme court has decided in numerous cases that the pleading must contain a statement of all the facts necessary to justify the order sought for by the proceedings. (McKenzie v. Ruth, 22 O. S 371.)

“ The writ shall not lie to compel an officer to do an act which it is claimed the law enjoins on him, unless the existence of all the facts necessary to put him in default be shown.” (Cincinnati College v. LaRue, Auditor, 22 O. S., 469.)

“ When the form of statement is more general than allowable by good pleading, advantage may be taken of it by motion to. make the recitals more definite and certain.” Fernoff v. Nash, 23 O. S., 355.

It is claimed by defendants, that the petition is defective in that1 it states mere legal conclusions, and not facts, upon which an issue can be'made and tried by the court. The relator denies this, and claims that he has set forth facts which are traversable, and to which the defendants are bound to answer.

The first objection is to the allegation of the relator, that he, with three others on the same ticket, was elected by a plurality of the legal votes over and above all other candidates for the same office,

This objection we think not tenable. It is stated by way of inducement, and as showing the right of the relator, as a candidate having a majority of votes, to bring himself into court; and the simple allegation of a claim that he was elected would be sufficient, without going into the details of the election, by setting out, as claimed by the defendants, the number of votes he obtained; and the wards and precincts in which he obtained them, and how many, and where his opponent obtained his.

The next charge against the defendants is, “ that they have wholly failed to canvass and abstract the returns of said election according to law.”

This statement, we think, is not sufficiently definite. It is not the assertion of facts, but the conclusion to be drawn from facts to be proved. If an issue were made upon it by-a general denial by defendants, the relator, to sustain' the averment, would have to prove certain specific facts, from which the court would draw the conclusion whether the action of the clerk, in the premises, were legal or illegal. The relator should set forth the facts upon which he bases the averment.

In the Fourteenth O. S., in the case of Ingerson v. Berry, although no controversy seems to have been made in that case, an application was made by a mandamus to compel the clerk and justices to abstract certain votes which they had rejected, and in the petition they very properly, as we think, set forth the facts. Now, here is a part of the petition :

“ That between said second Tuesday of October and the 12th of November, 1863, there were returned to said Berry, as clerk aforesaid, which office he then and still holds, the poll-books and votes of 271 voters and qualified electors of Wyandot county, who, at thé time of said election, were in the actual military service of the United States, and absent from the townships of their residence ; that the said 271 votes were given and returned for the office of Sheriff, of which number of votes, Ingerson, the relator, received 223, and Marlow 48; that said votes were given on said second Tuesday of October, at elections held and conducted according to the laws of this State, and that the poll-books and returns of said elections were certified and returned in strict accordance with the forms and provisions of the laws of this State,” etc.

It is claimed that the defendants have canvassed and abstracted a large number of votes which do not appear on the legal returns of the election made to the Clerk.

This statement we regard as too general. There are 206 election precincts in this county. It is not claimed by the relator that this defect applies to all of them; If to only a part, he should speciíj*- the returns to which the exception is taken.

The same objection will apply to the next paragraph, where the relator states that the defendants have canvassed and abstracted, as legal returns from certain precincts in the city of Cincinnati, a large number of votes which are not a part of the legal returns of said precincts.

We think these precincts should be named, and the facts stated on which it is claimed they do not form a part of the legal returns.

So, also, in the next paragraph, where it is said defendants have canvassed and abstracted returns of precincts in the Fourth, Ninth, Eighteenth and Nineteenth Wards, which returns are illegal and not true and lawful returns, the facts should be set out which are claimed to constitute them illegal.

And, also, in the next paragraph, where it is charged defendants “ refused to make a canvass and abstract of the votes cast and returned,” the relator should state the precincts in which said returns were refused to be canvassed and abstracted, and such facts as would show that the returns so refused were legal returns, and were illegally rejected.

Mr. Bateman — I would like to state the fact that we have not access to the records, bjr reason of which we could not state with more definiteness than simply a general statement of what the facts are.

The Court — If you can not arrive at them, you can give the reasons why you can not. If the facts which are necessary to be stated in the petition are within the knowledge of the clerk, you will be permitted to have access, in his presence, to the papers which he has, and to examine them.

Leave was given the relator to make his petition more definite and certain, according to the instructions of the court, until Wednesdajr, October 28,10 a. m.

The court remarked that the statement of Mr. McDougall on Monday that the clerk had accepted returns to the Duck-worth Club, presented to him several days after the election and ordered to be copied by him and then accepted as legal returns, would, for instance, be a specification sufficiently definite and certain.

Following is the entry of the court allowing relators to have access to the poll books and sheets :

“Circuit court, State of Ohio, on the relation of James C. Richardson, 169. Entry:
“ On motion of the relator, it appearing that an inspection of returns, papers and abstracts, now in the hands of said defendant, is necessary to enable the relator to amend his petition in accordance with the order of the court this day made, it is ordered that Daniel J. Dalton, clerk of this court, allow to Edward F. Noyes, Warner M. Bateman, Drausin Wulsin and Thomas McDougali, counsel for relator, an inspection and permission to take copy of any and all returns and papers claimed to be returns from the various voting precincts of this county, for the election held October 13, 1885, and also permission to inspect such abstract or canvass of so many of the votes shown as he and the justices named may have made and abstracted, such inspection to be made in the presence of said clerk one of his deputies and such of his counsel as he may desire; to all of which defendants except.”

(It was agreed by counsel on both sides that the petition in all the cases should be amended as required by the court, and that one service should be accepted as sufficient for all.)

(Counsel for relators inspected the tally-sheets and poll-books later in the day.)


author: Jenner, J.

text:
    (Fifth Circuit — Muskingum Co., O., Circuit Court
    May Term, 1885.)
    The City of Zanesville v. The Zanesville Gas-Light Co.
    Before Judges Adbaugh, Jenneb and.Foldett.
    The defense of res adjudícala applies where the decree in the former suit was decisive, directly upon the point in issue, between the same parties, and on the same matter.
    The rights of the public are never presumed to be surrendered. Where a corporation, incorporated before the adoption of the constitution of . 1851, claims to be exempt from legislative control, this fact can never be presumed, but must appear affirmatively by the terms of the charter itself. (Ed.)
    Appeal from the Court of Common Pleas of Muskingum ■ County.
   Jenner, J.

This case is before us on appeal from the common pleas. The answer to the amended petition presents two defenses, to which a demurrer was interposed. The questions raised by the demurrer, we think, are decisive of the case.

The first defense is a plea of res adjuddcata, in which the substance of a petition filed by the defendant in an action, in which the Zanesville Gas-Light Company was plaintiff and the city of Zanesville defendant, is set forth. The object of the petition in the former action, was to restrain the city of Zanesville, its officers and agents, named in the petition, from using force to prevent the Gas-Light Company from “ taking care of and preserving its property.”

We think the court was clearly right in granting the relief prayed for by the company. But it is claimed, that the right ,of the city of Zanesville to regulate the price of gas, was determined against the city in the former case. If there was an .adjudication directly upon the point, it would be conclusive between the same parties, on the same matter, directly in question in another suit. Whatever was necessarily involved in that controversy, is properly urged as a plea in bar here. If the former record shows that the same decree would have been rendered, whether the city of Zanesville had the legal right to regulate the price of gag or not, then the plea of res adjudicata is not well taken. The object of the former proceeding was, to protect the company and its agents from violence while engaged in preserving and protecting the property of the company. Can it be doubted that they were entitled to that protection, even if it be admitted that the city of Zanesville had the right to regulate the price of gas ?

That proposition is hardly open for contention. We, there-, fore, conclude that the right of the city to regulate the price of gas, was not necessarily involved in the determination of the former case. The Lessee of Lore et al. v. Truman, 10 O. S., 45, 53; Porter v. Wagner, 36 O. S., 471.

The second defense is a substantial admission of the allegations of the amended petition attempted to be traversed, but only a denial of the legal effect of the averments. As we view the demurrer to this defense, it presents the question, whether the terms of the charter authorizing the formation of the GasLight Company, exempts the company from legislative supervision and control. The charter consists of a special act of-the general assembly, passed March 12, 1849. The act contains nine sections, but it is only necessary to refer to one of said sections, which is in the following language:

“ Sec. 2. The corporation hereby created shall have full power and authority to manufacture and sell gas to be used ■for the purpose of lighting the town of Zanesville and the streets thereof, and any buildings, manufactories, public places, or houses therein contained, and to erect necessary works and apparatus, and with the consent of the town council of said town, to lay pipes for the purpose of conducting the gas in any of the streets.” ' ■

On the 4th of June, 1849, the town council of the town of Zanesville passed an ordinance, authorizing the Gas-Light Company to lay its pipes in the streets and alleys, and fixing the price of gas to be supplied for public lamps at two dollars and fifty cents per thousand cubic feet. No time was named during which this price was to be paid for public lamps, nor was any attempt made to regulate or fix the price that the company might charge private consumers. The company furnished gas at the price named for the public lamps from 1849 to 1864, and during said time charged citizens various prices. The price for the public lamps after this date, by contract between the company and the . city, was regulated from time to time; but as to the citizens, no attempt was made to control the price, until January 28, 1884, when the city of Zanesville passed an ordinance, fixing the price for public lamps at $12.00 per lamp-post per annum, and $1.25 per thous- and cubic feet to private consumers, and which it is averred was a fair and reasonable price.

This ordinance the company refused to obey, for the reason, as it maintains, that it is not subject to legislative control; that as its charter was granted prior to the adoption of the constitution of 1851, subsequent acts of the legislature, authorizing the council of any city or village to regulate the price of gas from time to time, has no application to said company. This depends upon the terms of the charter. It is not provided in the charter, that the company shall have the exclusive privilege of supplying gas to Zanesville or her citizens; and it is silent as to any price the company is authorized to charge; nor does it specify any period of time during which the company may furnish gas.

It must be remembered, that the object of the organization of the company was not solely for the emolument of the corporators and stockholders; but it was also for the public convenience and welfare. And it is of great importance that the public, for whose convenience it was incorporated, retain supervision and control of the company.

Whether ór not such control was reserved, must be determined by the language of the charter. But the right to such exemption must appear to have been clearly granted, and will not be presumed. “The rights of the public are never presumed to be surrendered to a corporation, unless the intention to surrender clearly appears in the law.” Perrine v. Ches. & Del. Canal Co., 9 How., 172; Munn v. Illinois, 94 U. S., 113.

Wm. H. Cunningham, City Solicitor, Gilbert D. Mvmson and A. J. Andrews, for plaintiff.

A. W. Train, Prank H. Southard and JET. R. Stanbery, for defendant.

The case of The State ex rel. v. Columbus Gas-light & Coke Co., 34 O. S., 572, involves the construction of the charter of the Columbus Gas-light and Coke Company, which was incorporated by a special act of the legislature, passed Feb. 21, 1846. White, J., announcing the opinion of the court, cites the case in 9 How. and 94 U. S. with approval, and an page 582, speaking of corporations invested with franchises to be exercised for the public interest, says : “ They are clearly subject to public control, in respect to the terms upon which their franchises are to be exercised, unless they are protected by their charter from such .interference.”

The proposition so earnestly and ably insisted upon by counsel for the company, that because the charter was granted prior to the adoption of our present constitution, and does not expressly provide for legislative control of- the corporation, if is not, therefore, subject to the provisions of section 2478, revised statutes, is not tenable, but contrary to the well settled rule of construction, that the rights of the public are never presumed to be: surrendered to a corporation, but that that fact must affirmatively appear, by the terms of the charter itself.

We .conclude, therefore, that the defendant is not protected from legislative control as to the price it may charge for gas in the city of Zanesville, either for public or private use, because there is nothing in the terms of the charter relieving it from such control. The second defense to the amended petition is, therefore, insufficient. Demurrer to the answer is sustained.

Decree accordingly.

Albaugh and Follett, J.J., concur.


author: Shauck, J.

text:
    (Second Circuit — Shelby Co., O., Circuit Court
    October Term, 1885.)
    Before Williams, C. J., and Stewart and Shatjck, Judges.
    The State of Ohio ex rel. William Widner v. David Bowersock, Probate Judge.
    An appeal was taken from the final judgment of the court of common pleas on a petition in mandamns, and a motion was made to dismiss the appeal, on the ground that the case was not a civil action: Held, on the authority of State ex rel. JDutten v. Hanover, 42 O. S., 215, that such appeal might be taken.
    The relator filed his petition in the court of common pleas against the defendant, the probate judge, for a peremptory-writ of mandamus, to compel that officer to issue to the auditor certificates for the allowance and payment of certain claims, alleged to be due to the relator as superintendent of the county infirmary, on account of services in the care of persons who had been adjudged to be entitled to admission to the lunatic asylum of the state, at Dayton, and were confined in the infirmary pending their admission to the asylum.-
    In the court of common pleas, a final judgment was rendered against the relator on demurrer to his petition, and he then appealed the caus.e to the. district court. A motion is now made to dismiss the appeal.
   Shauck, J.

In support of this motion, the defendant relies upon our own decision in The Stat ex rel. Pierce & Coleman v. The Board of Education of Piqua, in Miami county, where we sustained a motion identical with this.

It was insisted there, as it is here, on behalf of the relator, that the right of appeal in such a case is conferred by section five thousand two hundred and twenty-six, of the revised statutes. In order that a case come within the terms of that section, three conditions must exist concurrently, viz., that it be a civil action ; that it be one of which the court of common pleas had original jurisdiction, and that the right to demand a jury did not exist. That the case presented the two conditions last named was not doubted.

But upon consideration of the statutory provisions affecting the question, and upon what we conceived to be the explicit authority of Chinn v. The Trustees, etc., 32 O. S., 236, we concluded that mandamus is a special proceeding' and not a civil acton, and, therefore, that no appeal could be taken.

It was then suggested, that the question is not now concluded by the authority of Chinn v. The Trustees, because the legislature, in making the recent revision of the statutes, intended to transform the special proceeding in mandamus into a civil action. No evidence of such intention was pointed out. That such intention existed with respect to dower and other subjects embraced in title one ol part third, seemed inferable from their association with civil actions, and from the fact that with respect to service and modes of procedure, they are within the general provisions relating to civil actions. We were, however, unable to make such inference with respect to proceedings in mandamus. Section five thousand and thirty-five provides that a civil action must be commenced by filing in the office of the • clerk of the-proper court a petition and causing a summons to be issued thereom”

In chapter two, of title four, mandamus is defined to be “ a writ issued in the name of the State to an inferior tribunal, etc.,” and by the provisions of that chapter the issuing of a summons is dispensed with. Whether any form of notice shall be given the defendant, is within the discretion of the court. In certain cases a peremptory writ may issue in the first instance ; that is, the final relief sought may be awarded without regard to the steps that are deemed indispensable to valid final judgments in civil actions. It is further provided in the chapter referred to, that the defendant “ may answer as in a civil action,” and that he “ may demur to the reply asina civil action.” It seemed to us that this language would become incomprehensible if we should regard the chapter as relating to a civil action.

Chapter three of the same title relates to quo warranto, and it is made a civil action by the express provision of the first section ; and as to service and procedure it is made subject to the general provisions which govern civil actions.

Hatfield, Wicoff & McKercher, for relator.

Col. Wilson and G. A. Marshall, for defendant.

We also thought it worthy of consideration, that at the time of the revision, the court of common pleas had no jurisdiction in mandamus, and that such jurisdiction was not conferred. It did not seem to be a natural presumption, that the legislature intended to make this proceeding the subject of an appeal under section five thousand two hundred and twenty-six, when it was not within the jurisdiction of that court, from whose judgments alone such appeal could be taken; or that it was intended to invest it with the general incidents of a civil action, since it could not be instituted in that court in which civil actions were generally cognizable.

This view of the question presented led us to the conclusion, that the revision of the statutes had only added to the reasons which had already induced the supreme court to hold in Chinn v. The Trustees, that mandamus is-a special proceeding, and not a civil action.

But our attention is now directed for the first time to the recent decision of the Supreme Court in The State ex rel. Dutten v. The Village of Hanover, 42 O. S., 215. The first proposition of the syllabus relates to the issues in a mandamus case, and concludes; “ either party might appeal from the judgment of the common pleas thereon.” It is true that the right of appeal seems to have been contested in that case upon the untenable ground that the right to demand a jury existed in the case, and that the report does not show that Chinn v. The Trustees was called to the attention of the court, or that the court considered whether it was a civil action, or a special proceeding. But a subordinate tribunal ought not to reason itself into insubordination. This question was presented by the record, whether relied upon or not. We must assume that the supreme court gave the consideration which it thought due to all questions that were involved in the conclusion which it announced. That conclusion plainly is that an appeal may be taken from the final judgment of the court of common pleas in a case of this character.

Motion overruled.


author: Williams, C. J.

text:
    (Second Circuit — Franklin Co., O., Circuit Court
    Sept. Term, 1885.)
    Before Williams, C. J., and Clark and Shauok, Judges. (Judge Clark, of the Fourth Circuit, taking the place of Judge Stewart.)
    Enoch Miller v. H. G. Weber et al.

      X. The probate court, on appeal from the proceeding of the township trustees in the location of a ditch, is not made a court of error to review their record and pass upon error and irregularities appearing therein; but its jurisdiction is by statute limited to hearing and determining the preliminary questions pertaining to the case, and the dismissal of the appeal if it be found that the same is not perfected according to law; and in case the preliminary proceeding for appeal are in substantial conformity to law, then to the selection of, and trial to the jury, and the proceedings subsequent thereto in the statute provided for.
    2. Upon the trial on such appeal, the duties of the jury are confined to determining and rendering a verdict in writing therein, finding whether it will or not be conducive to the public health, convenience or welfare to cause the proposed ditch to be established or located, and the amount of compensation and damages to be awarded to the persons claiming the same.
    3. The jury, after being sworn, are required to examine the ditch, and may, from such examination, with or without the aid of testimony, make up their finding as to whether it will or not be conducive to the public health, convenience or welfare to cause said ditch to be es-established or located; and it is not error for the court, after having charged the jury that “ before they could find in favor of the ditch, they must find that it would be conducive to the public health, convenience or welfare of the neighborhood through which it passes,” to refuse to further instruct the jury “ that the burden of proving the the public necessity of the ditch by a preponderance of testimony is on the petitioners.”
    4. The location and construction of one ditch by the township trustees to drain certain territory does not exhaust the power of draining over that territory, nor confine it to the deepening, widening, etc., of such previously constructed ditch ; nor are trustees in the location of ditches restricted to the course of the natural flow of the surface water. The only limitation as to the number, course, and location of township ditches, is that they shall be conducive to the public health, convenience or welfare.
    5. For the'land appropriated for such ditch the land-owner is entitled to full compensation, and is also entitled to the damages to his other lands from which the appropriation is made. He is not entitled to have awarded him as part of his compensation the value of a strip of land not actually appropriated, on each side of the ditch; nor is he entitled to have the costs of constructing such portion of the ditch as the trustees apportion to him to construct, assessed as part of his damages.

      6. It is not error to the prejudice of the land-owner, on the trial of his claim for compensation and damages, to permit, against his objection, a properly qualified witness to be asked, “ what injury, as matter of fact, the ditch would cause to the lands ? ” and to which question the witness answered: “ none.”
    Error to the Court of Common Pleas of Franklin County.
   Williams, C. J.

In. June, 1881, Weber and others filled a petition before the Trustees of Prairie township for the location of a certain township ditch, under which proceedings were had resulting in a final order of the trustees locating such ditch, and assessing compensation to Miller for lands of his appropriated. He appealed to the probate court, where the preliminary proceedings relating to the appeal having been adjudged regular, a jury was empaneled, and a trial had under the statute, resulting in a verdict, finding the ditch conducive to the public health, etc., and assessing Miller’s compensation. Miller made a motion for a new trial, which was overruled, and he prosecuted a petition in error to the common pleas court. That court affirmed the judgment of the probate court, and this petition in error is prosecuted here to reverse the common pleas.

Various errors were assigned in the common pleas, for which it is claimed that court should have reversed the probate court, and in not doing so erred, because of which this'court should reverse the common pleas.

I. Thefirst one in order is “ that no sufficient bond was filed by the petitioners with the township clerk, and the trustees failed to find that such bond was so filed — and this being neccessary to the jurisdiction of the trustees — the probate court had none.” It is a sufficient answer to this alleged error to say, that although the filing of such bond is jurisdictional, the question is not here properly presented. This is not a direct proceeding to reverse the order of the trustees — their record is not under review; only that of the probate court. The jurisdiction of that court, in this proceeding, like that of the trustees, is special and limited, and can be exercised only according to the terms of the statute and in the mode therein prescribed.

The statute provides, that on the filing of the appeal, that court shall fix a time for hearing the preliminary questions; and at that time, if the court find the proceedings relating to the appeal are regular, shall issue a venire for a jury. If the proceedings for the appeal have not been in conformity to the statute, the appeal shall be dismissed. Upon such appeal, the probate court is not made a court of error to review and pass upon the-regularity of the proceedings before the trustees, but can only perform the statutory duty of determining whether the proceedings relating to the appeal are regular or not, and if regular, then proceed to the performance of that other statutory duty, the issuing of a venire for a jury, and proceeding in manner pointed out by the statute for the jury trial therein provided for.

Besides, the record of the probate court in no proper form presents any question relating to the sufficiency of the bond. It is not made any part of the record, or of any bill of exceptions, so as to call for its examination. A paper purporting to be some bond, which was given in evidence to the jury on the trial,, is attached to the bill of exceptions, but is in no way made a part of it, and no action of the probate court in reference to it appears upon the record.

II. The next errors assigned relate to certain testimony admitted, and certain other testimony excluded, on the trial to the jury.

1. One Seibold was asked to state what injury, if any, as matter of fact, the ditch would cause to Miller’s land, to which he answered, none. This was admitted against Miller’s objection, which he claimed was simply an opinion in regard to his damages.

This testimony is plainly distinguishable in substance from that held incompetent in the case in 4 O. S., 583.

There the question called purely for an opinion of the amount of damages that opinion, might be made up, in whole or in part, of matters impioper to enter into any just basis of damages, and could not properly be allowed to go to the jury. The question here, however, calls rather for a description of the manner, or statement of the nature, of the injury to the land, and not for a'ny opinion on the subject, and could not prejudice the rights of Miller.

2. Miller in. his behalf asked Postle, “whether the water that flows along the route of the proposed ditch, could be carried through Miller’s land by under-ground tile drains.” This was not permitted to be answered, and it is difficult to see'how the answer could have been of any advantage to Miller.

The condemnation of his land was for'an open ditch. He was entitled to full compensation for all the land taken for such ditch, and damages for any injury to the balance of his land. Whether it would afterward be tiled, was a matter purely with him, and could neither reflect upon the question whether the ditch would be conducive to the public health, nor enhance his damages, and the jury had no right to reduce his damages because the ditch might be tiled.

III. The other errors assigned relate to the charge of the court to the jury, and the refusal to give in charge certain requests made by Miller’s counsel.

To the charge given to the jury, no valid objection can be made. The court substantially gave the requirements of the statute in charge, and in language appropriate to the particular case.

The duties of the jury are plainly specified by the statute, and are confined to three things — First, to find and report-whether the proposed ditch will be conducive to the public health, convenience or welfare. The jury were instructed that in determining this question, they should take into consideration all the evidence, as well any ditches that might theretofore have been constructed to drain that territory or part of it, as all other facts given in evidence throwing any light on the subject; and that it was not enough to find that the ditch would be a great convenience, but before they could find in favor of the ditch, they must find that it would be conducive to the public health, convenience or welfare of the neighborhood through which the ditch passes.

Second and Third: The only other matters the jury could pass upon were the compensation to Miller for his land appropriatéd, and the damage to the land from which the appropriation is made. Upon this branch of the charge no exceptions were taken by Miller, except to the statement made to the jury by the court, “ that they had nothing to do with the apportionment of the work of constructing the ditch.” It was proper for the court so to instruct the jury, for such apportionment was not brought into the court by the appeal, and it could nei'ther’be an element of compensation for the land taken, or of damages toathe residue.

IY. The requests to charge, which were refused, may be grouped in five propositions, as follows:

1. That the trustees, having, in 1875, duly established and constructed a public ditch for the drainage of this territory, which by deepening, widening, etc., could be made amply sufficient for that purpose, their powers were exhausted, and they could not locate a new ditch, though better than the old one could be made, and all that could be done by the trustees was to deepen, widen, etc., the old ditch.

2. Or if the old ditch, established in 1875, could be deepened, widened, etc., so as to make it as conducive to the public health, etc., it was the duty of the trustees to so widen, etc., and not locate a new ditch.

3. That the trustees were only clothed with such powers as are conferred by certain sections of the statute, which could only be exercised in conformity to their provisions, under which the trustees could not legally locate a ditch except by following the natural flow of the water, and not through a natural barrier, or through lands over which the water did not naturally flow.

4. That if Miller already had drainage for his land, the trustees had no right to apportion any part of the ditch to be cut by him, and the cost of cutting such part apportioned to him should be allowed as part of his damages.

5. That he was entitled to have assessed to him the value of the land for two feet on each side of the ditch and that covered by the dirt thrown from the ditch, as part of his compensation.

These several propositions are so intimalely connected that they will be considered and disposed of together.

It is true that the trustees have only such powers as are conferred by statute, and that their jurisdiction must be exercised within the terms of the statute, and in the mode therein prescribed. But with the powers and duties of the trustees, and whether they properly performed them, the jury had nothing to do. The question should be submitted to the jury as an original one, whether the proposed ditch would be conducive to the public health, etc., or not, and be by them decided upon their view and the evidence, without any regard to what the statute prescribed as the duties of the trustees, or whether in this instance they performed them properly or not.

The facts that the trustees had previously located and constructed a ditch intended to drain this territory in whole or part, and the extent to which such ditch accomplished that purpose, were properly put in evidence, and to be considered by the jury, to enable them to decide whether the proposed ditch would be conducive to the public health, etc., and the jury in determining this question should, and we must assume, in this case did give such facts their due weight (for the whole evidence is not set out in the bill of exceptions).

That such old ditch had been so established, and could be so deepened and widened as to accomplish as well and at as little expense as the new ditch the necessary drainage,, does not of itself prevent the establishment of the new ditch.

It is no defense to an otherwise proper condemnation for a public use that another equally advantageous can be made; and to widen ths old ditch would require a new condemnaNor does the fact that the trustees have already located one ditch in the neighborhood, exhaust their power of drainage over that territory, nor confine it to depeening and widening such old ditch. The is no such limitation on their power. On the contrary, the statute expressly authorizes them'to locate any ditch that will be conducive to the public health, etch., no matter how many more have previously been located to drain the same territory. The only limitation on their powers as to deducive to the public health, etc., and whether they are so or not, the jury on appeal are to decide in view of all the facts and the whole situation, including and all previous ditches and their condition.

This view is not in conflict with Crewfis v. McClure, 30 O. S., 216, which simply decides that after the commissioners made their final order for the construction of the ditch, their powers overií as a new improvement were exhausted. Just as in this case, after the trustees made their final order locating the old ditch, their powers over that particular proceeding were exhausted ; they could not resume jurisdiction and make a new order. The power to locate any number of ditches so long as they conduce to the public health, is not in that case called in question.

Nor are the trustees, in-Tocating a ditch, restricted to the course of the natural flow of the surface water. That is a proper thing to be looked to with all other facts, and upon the whole it is left by the statute to the judgment of the trustees in the first instance, and to the jury on appeal, to say whether the particular ditch will be conducive to the public health, etc.

So far as this branch of the casé is concerned, the charge given by the court to the jury fairly and properly placed the question before them-, as it did also on the subject of damages. It was not error to refuse to charge the jury'that they could allow Miller^ as damages, the cost of. constructing so much of the ditch as the trustees awarded him to cut. Their inquiry was limited to*the value of the land taken, and the damages to the residue of the land from which it was taken. If the trustees abused their powers in the apportionment, Miller’s remedy is-elsewhere than before the jury on the appeal. That question the statute does not authorize the jury to pass upon. Nor was Miller entitled by way of compensation to the value of a strip of land four feet wide not actually appropriated. In so far as such strip was injured, he was entitled by way of damages to be compensated.

There is still one remaining question, and the most troublesome, presented by the record; and that is the last instruction requested by- Miller’s counsel, and refused. It is as follows:

“The principal object intended'and authorized by the legislature in providing for the location and construction of township ditches, was the public health, convenienpe or welfare, and private interests are only incidental to the principal object,' and .such private interests of themselves will not authorize the location,- and opening of a township -ditch. It is the public welfare that must make it necessary, and the-burden- of proving this-necessity by a preponderance-of testimony is on the petitioners.” "

The court gave in charge substantially the whole of this request, except the last clause relating to the burden of proof, and the question is presented whether the court erred in refusing this last clause.

This question is not free from difficulty or doubt.

Whether in a proceeding in behalf of a public purpose like this, where no issues are made by pleadings, the person who calls into action the functions of the proper instrumentality for its accomplishment can be called an adversary, party, so as to impose upon him the burden of establishing the necessary facts, it is not necessary now to decide.

Section 4538, revised statutes, provides, that after the jury are sworn, they shall “ under the care of the sheriff, and with such other person or persons as the court may appoint to show them the premises, and before any testimony shall be given except the plat, etc., * * proceed to examine the ditch as esT tablished or ordered, and the property of the several claimants taken therefor, etc., * * and after making such examination, shall return to the court at the time-the court shall have appointed, whereupon the trial before the jury-shall proceed, as other jury trials in said court.”'

It is apparent that under this section there are two legal sources of information to the jury upon which they may predicate their finding and verdict as to whether the ditch will be conducive to the public health, etc. — one is the examination made by them, and the other is the testimony given on the further trial after the view; and it is further apparent that the word “ testimony ” in this, section means testimony of witnesses, as distinguished from evidence derived by the jury from their actual view of the ditch.

It seems in a proceeding like this for the establishment of a ditch, the trustees may in the first instance determine whether the proposed ditch will be conducive to the public health, etc., from their view of the route of the proposed ditch, without any testimony adduced before them (revised statutes 4520). Why may not the jury on appeal do the same thing ? At least, may they not use the results of their actual view in forming their conclusion and verdict upon the question of the public use contemplated ? If tbe jury may, in whole or in part, make their finding and verdict on this question from their examination of the proposed ditch, etc., as contra-distinguished from the “testimony” as used in the statute, then the instruction refused, and which is now under consideration, was properly refused; for that instruction, if given, would have required the jury to disregard all information derived by them from their actual view, and to act solely upon the testimony of witnesses, given on the trial after view.

The principal object of the last clause of section 4538, was to afford a strictly constitutional mode of assessing compensation for the private property appropriated to the public use, and does not have the effect of denying to the jury the right to form an opinion and verdict as to such public use from their view of the ditch, with or without the aid of testimony delivered on the trial.

Besides, it is the rule, that to constitute error in the refusal of a court to charge a jury as requested, the proposition must be absolutely true in all its material parts under all reasonably conceivable circumstances. C. & P. R. R. Co. v. Sargent, 19 O. S., 439.

There is, we think, a substantial difference in the popular-as well as in the legal signification of the terms public necessity” and “conducive to the public health, convenience or welfare.” The authority to do whatever is conducive to a given end, is .a broader power than an authority to do only what is-absolutely necessary to that end.

A jury, understanding the ordinary import of terms, would understand such difference. And especially in this case, where-previous instructions requested looked all in the one direction that nothing but-an absolute public necessity would authorize the ditch, it was not improper for the court to refuse-to give the instruction couched in the form presented. .

All that the statute requires is that the proposed ditch be-conducive to the public health, convenience, or welfare, and not-that it be an absolute necessity, and the statute seems simply to require that-the question shall be submitted to the jury as a specific proposition, to find whether such ditch will or will not conduce to the public .health, etc., and as before seen, the court charged' íhó jury that before they could find in favor of the ditch, they must find that it would be conducive to the public health, convenience or welfare of the neighborhood through which it passes.

Gilmore & Mariott, for plaintiff in error.

Outhwaite and Keating, for defendant in error.

Upon the whole record, we think the case was fairly submitted to the jury; that, to say the least, the. instruction requested, in view of the whole record, was calculated to mislead the jury, and that the judgment should not be reversed by reason of the refusal to give it in charge.

Judgment affirmed with costs — no penalty.