author: WILSON, J.

text:
    RAILROADS — CORPORATIONS—CONTRACTS.
    [Montgomery (2nd) Circuit Court,
    1902.]
    Wilson, Sullivan and Summers, J.T.

      Dayton & Union Ry. Co. v. Pittsburgh, C. C. & St. L. Ry. Co.
    1. CORPORATION De Jure Does not Become Corporation De Facto Because of Ultra Vires Contract.
    A railroad corporation de jure does not become a corporation de facto because it bas entered into an ultra vires contract with a connecting railroad company; it such contract is %iltra vires, and the company’s authority challenged in quo warranto, a judgment of ouster against carrying out the contract would be rendered, thus confining the company’s operations within its charter power, but its charter would not thereby be revoked. The company would still continue a de jure corporation. '
    2. Trackage Contract Which Eliminates an Ultra Vires Contract and Creates Competition, not Ultra Vires.
    A trackage contract between two railroad companies forming connecting lines, except for a fifteen mile parallel track built and operated by one upon the right of way of the other under a contract alleged to be ultra vires, is not ultra vires when it has for its object the taking up of such parallel track, thereby restoring the company to its former status of a connecting and competing line, and substituting, in lieu of the parallel track, a traffic arrangement which is within the enumerated powers of connecting railroads, and which contract does not destroy, but creates, competition between them.
    3. Mere Intention to Violate Corporate Duties no Ground for Forfeiture of Charter.
    No ground for forfeiture of a railroad company’s charter exists because of a mere intention or purpose on its part to violate its public duties, nor does such intention change its legal status. Hence, the fact that two railroad companies, operating connecting lines except tor a short parallel track constructed and operated by one upon the right of way of the other under an ultra vires contract, stipulated in a subsequent contract between them under which the parallel track was taken up, that in event the contract was terminated, the use of the parallel track could be returned to, being a mere intention of possible future action, is neither a ground for forfeiture of its franchise, nor does it change the legal. status of the company or affect the validity of the remaining portion of the contract. ' .

      i. Contract Valid When 'Invalid Portion may be Eliminated, etc.
    A contract between two railroad companies is not invalid because of certain provisions therein which, if acted upon, would stifle competition, where it appears that the contract without such provision has created competition' between them; that both companies have carried on the business of common carriers under the remaining portions of the contract without invoking the aid of the invalid provisions; and it cannot be said that the contract would not have been entered into without such provisions. The contract being operative and binding in other respects, such provisions may be eliminated and the contract upheld.

      5. REMOVAL OF ADDITIONAL TRACK DEEMED FOR THE PUBLIC GOOD, WHEN.
    As every additional railroad track is a burden upon the public domain, and an enhancement of danger to the public; and the inconvenience to a common carrier in transacting its business is obvious when its ‘ road is crossed by the track of another; and it appears that the business of the public can be handled on one as well as on two tracks; and the policy of the law being to mitigate necessary evils by doing away with unnecessary tracks, the removal of the additional track will be held, in the absence of proof to the contrary, to be for the company’s benefit and the public good.
    6. Ultra Vires no Defense to Contract Acted Upon by Both Parties.
    The defense of ultra, vires contract cannot be interposed by a defendant railroad company against another company in an action by the latter based upon a trafile contract between them which has been recognized-as binding and acted upon by both for thirty-seven years, and under which plaintiff removed a parallel track which it had constructed upon defendant’s right of way under a prior contract also alleged to be ultra vires, and it also appears that defendant, fourteen years after-wards, expressly ratified its provisions in order to receive the increased rentals therein provided for. and has received thereunder more than $350,000 as the fruits of its enforcement, notwithstanding the contract upon which plaintiff founds its action is ultra vires; a fortiori, where defendant, in its answer and cross-petition, asks a cancellation of .the contract and a seizure of plaintiff’s property, but without seeking an accounting and settlement of the rights and equities, which have grown out of the contract in favor of the parties during its thirty-seven years of existence.

      7. Contract for Use of Tracks a Permanent License, When — Agreement to Arbitrate Does not Oust Jurisdiction of Courts.
    A valid contract between two railroad companies whereby one is to have the use of the other’s road in the manner therein prescribed, so long as the contracting parties exist as chartered corporations, is in the nature of a permanent license, and is binding upon and may be enforced in a court of justice against the lessee or assigns of either taking subject thereto, notwithstanding a provision therein to submit disputes arising between the companies to arbitration. The agreement to arbitrate does not preclude a resort to a court of justice to protect rights growing out of the contract, neither can it be pleaded in bar to such action. Such agreement to arbitrate will not be specifically performed, nor the arbitrators compelled to act.
    8. Word “Road” a Generic Term — Includes all Present and Future Tracks and Side Tracks.
    The word “ road ” is a generic term, and, when used in a trackage contract between railroad companies, includes all present and future structural facilities which appertain to the road proper,' unless its meaning is limited by other provisions in the contract. Hence, where plaintiff company is authorized, by its stockholders, to contract for the use of another company’s “ road,” which term, however, is not used in the granting clause of the contract between the companies, but the words “ main track ” and “ side track ” substituted therefor, and other articles therein assure to plaintiff company the use of “ switches ” and “ water stations,” all of which practically constitute the “ road ” proper, in the sense that plaintiff company has the right to use the same, and it is apparent, from the language used, in the clauses providing for rental and under which plaintiff company also assumes liability for all damage resulting from its operations over defendant’s road, that the- words substituted were intended as the equivalent of the word “ road,” in such case, the word “ road,” in the absence of express words of limitation, will be held to include all tracks and side tracks then and subsequently becoming a part of defendant’s railroad; and whether built •under the express terms of the contract, or from a necessity arising from increased business, plaintiff company will be entitled to their use in such a way as will fully allow it all reasonable means and facilities for the prompt and convenient dispatch of its business.
    9. Word “ Road ” not Limited in Meaning, When
    The term “ road,” used in a trackage contract between two railroad companies, is not limited in its meaning to the road, side tracks and other structural facilities existing at the date of the execution and delivery of the contract, or which may be expressly provided for therein, by a clause which imposes a duty upon defendant company to construct necessary side tracks at certain points along the road for the convenient passing of trains and dispatch of business, and to keep the same, together with the main track, etc., in good repair between certain points. The only' limitation implied in such clause is that plaintiff could not require defendant company to build additional side tracks except such as are provided for in the contract.
    10. Right to do Freight Business Includes use oe Sidings, "etc.
    The right of a railroad company to do a freight business over the road of another company includes the right to use the main and side tracks; between, and at, the terminals as facilities for reaching and gathering; up freight, and is not limited to the use of the main and side tracks for the prompt and convenient moving of its trains between points.
    11. Right to do Local Freight Business Granted by Implication, When.
    The right of one railroad company to do a “ local ” business over the road of another without the payment of compensation in addition to the annual rental provided in the trackage contract between them, is granted by implication where the contract stipulates that it “ shall not be so construed as to prohibit (plaintiff company) from carrying freight or passengers to or from ” the terminal .points, “ or to or from any intermediate station,” and it is not fairly inferable from the clause providing for the adjustment of the “ mode between the two of doing the local freight business ” that such annual rental was not also in payment for such right. In such case the annual rental pays for both thev through and local business.
    12. Grant to use Tracks Does not Confer ■ Right of Grantee to License Others.
    A grant by one railroad company to another to use its road for “all trains required in the prosecution of its business,” is a limitation upon the grantee company, and it cannot license other railroad companies, in the prosecution of their own separate business, to run their trains, scheduled or detoured, over the grantor company’s road, nor has it the right to receive and discharge freight, belonging exclusively to the business of other railroad companies, on the side tracks for hire, without the consent of the grantor company. Such unauthorized use will be enjoined.
    13. Test as to Whose Business is Being Done Over Railroad.
    The test of whether a grantee railroad company under a trackage contract with another company is carrying on its own exclusive, or some other company’s business over the latter’s track, is determined by whose business is being done on the line, and not by whose engines or whose crews are operating the trains.
    Appeal from Montgomery common pleas.
    This case comes before us on appeal from the decree of the- court of common pleas.
    The action is prosecuted by the plaintiff, to enjoin the defendant from interfering with its use of the track and side tracks of the defendant’s road between the west bank of the Great Miami river fit Dayton, Ohio, and the junction, or Dodson station (fifteen miles beyond, in a northwesterly direction), for the transaction of its business as a common carrier.
    The plaintiff claims the right to so use that part of the defendant’s road under a contract entered into by it and The Dayton & Western Railroad Company on January 14, 1863; and, that its rights, under that contract, have become fixed and definite, by a long course of business and user, acquiesced in by the defendant, for such length of time, and with such uniformity, as to have become a rule of construction of the contract between the parties. A copy of the contract is attached to the petition, and is of such length that reference must be had thereto, for a full statement of its contents. The terms which are in dispute, and which the court is called upon to construe, will be referred to in the discussion of the case.
    The defendant admits the execution of the contract, but denies the plaintiff’s right to use its road, in the manner and to the extent claimed by it; specifically denying its right to use the side tracks in West Dayton, and the main line, for the purpose of scheduling or detouring the trains of other roads over the same.
    It also denies that it has acquiesced in the use of its road in the manner claimed by the plaintiff.
    It claims further, that the contract in question is void al> inil-io, for the reason that the parties to it, being railroad companies operating-parallel competing- lines, were without the corporate power to enter into such a contract, and that the contract is against public policy, for the reason that its tendency and purpose are to stifle competition.
    It asks therefore that the contract may be declared void and can-celled, or if not, then that the plaintiff may be enjoined from making an unwarranted use of the road under its terms.
    There are but few facts in dispute in the ease, the material facts being admitted. Those admitted or proven, found by the court necessary to be considered, in reaching- a conclusion in the ease, are the following :
    1. The Dayton & Western Railroad Company was incorporated February 14, 1846, 44 O. L. L. 93. It was authorized to and did thereafter construct a line of railroad from the city of Dayton to the state line, between the states of Ohio and Indiana, passing through the village of Dodson, fifteen miles west of the city of Dayton. On January 31, 1851, the legislature authorized it to unite with the Terre Haute & Richmond railroad (49 0. L. L. 466), thus giving it'a line to Richmond. Indiana.

      2. The Greenville & Miami Railroad Company was incorporated. February 26, 184-6 (44 O. L. L. 189), with authority to construct a line of railroad from the town of Greenville in Darke county, to any point on the Dayton & Western railroad, or to any point on the Miami, or Miami Extension, canal. On March 28, 1850, it ivas authorized to extend its railroad westwardly, to a point on the Indiana state line. 48 O. L. L. 311. It thereafter constructed a line of railroad from Union City, through Greenville, to a point called the junction, at or near Dodson, a village on the Dayton & Western road.
    3. On March 14, 1853, the Greenville & Miami Railroad Company acquired, by contract with The Dayton & Western Railroad Company, the privilege of occupying the right of way of The Dayton & Western. Railroad Company, from the point of junction at Dodson, to Dayton, for the construction of a second track, thirteen feet from center to center, parallel with that company’s line, agreeing to pay therefor, six per cent, on the cost of the D. & W. road, between these points. Subsequently, it acquired from the abutting landowners for railroad purposes, eight strips of land, which are not continuous, but which lie alongside The Dayton & Western Railroad Company’s right of way. Under this arrangement, it put down and operated, until January 14, 1863, a separate track, with the then needed side tracks, parallel with the line of The Dayton & Western Railroad Company’s line, between Dodson, and the west bank of the Great Miami river, at Dayton.
    4. On January §, 1863, The Greenville & Miami Railroad Company was reorganized, under the laws of Ohio, as The Dayton & Union ' Railroad Company. •
    5. On January 14,1863, The Dayton & Western Railroad Company, and The Dayton & Union Railroad Company, entered into the contract, attached to the petition, marked exhibit “A;” in pursuance thereof, The Dayton & Union Railroad Company took up and disposed of its superstructure, between Dodson and Dayton, and has ever since transacted its business as a common carrier, between those points, on the road of The Dayton & Western Railroad Company, paying therefor the rentals in the contract provided.
    6. On January 4, 1865, The Little Miami and The Columbus & Xenia Railroad Companies, leased the Dayton & Western railroad, for a period of ninety-nine years, renewable forever, subject to the agreement between The Dayton & Western Railroad Company, and the Dayton & Union Railroad Company, dated January 14, 1863, and agreed “to keep, perform and fulfill, all and every of the covenants and stipulations of the party of the first part,” contained in said agreement. .
    7. On November 13, 1868, in pursuance to article fifteen of the . contract of January 14, 1863, The Dayton & Union Bailroad Company, and The Little Miami and The Columbus & Nenia Bailroad Companies, for a consideration of -$2,000, annual rental,, to be paid by the former to the latter, agreed that the former should have the privilege of using the Great Miami river bridge, and the trade of the Dayton & Western railroad, from the depot grounds of the Dayton & Union, east of the river, to the junction near the west end of said bridge; the rights and liabilities of the parties to be determined by the terms of the contract of January 14, 1863; since which time, The Dayton & Union Bailroad Company has used said bridge and track, in the conduct of its business and paid the rental therefor.
    8. On March 18, 1869, The Columbus & Xenia Bailroad Company, leased to The Little Miami Bailroad Company, for the period of ninety-nine years, renewable forever, its line of road, together with its interest in the Dayton & Western railroad.
    9. On December 1, 1869, The Little Miami Bailroad Company leased to The Pittsburgh, Cincinnati & St. Louis Bailway Company for the period of ninety-nine years, renewable forever, its line of road including its interest in the Dayton & Western, and the Columbus & Xenia railroads.
    10. On January 2, 1877, The Pittsburgh, Cincinnati & St. Louis Bailway Company, as lessee of the Little Miami Bailroad Company, entered into an agreement with the Dayton & Union Bailroad Company, whereby the said first-named company, for the sum of $10,000 cash, to it, in hand paid, settled and dismissed a suit then pending in the superior court of Dayton, brought to recover additional rentals, under the stipulations of the twenty-third article of the contract of January 14, 1863; and upon the further agreement of The Dayton & Union Bailroad Company, thereafter, to pay to The Pittsburgh, Cincinnati & St. Louis Eailway Company, a fixed rental of $10,000 annually, said twenty-third article was agreed to be eliminated from said contract, and to be thereafter inoperative; but it was otherwise then and there expressly agreed, between said parties, that “all other portions of said contract of January 14, 1863, should remain unchanged and in full force, and all the rights and privileges of each party thereunder should be fully preserved.'”
    11. On October 1, 1890, the defendant, The Pittsburgh, Cincinnati, Chicago & St. Louis Bailway Company, became and is now the successor of The Pittsburgh, Cincinnati & St. Louis Bailway Company.
    12. On or about November 8, 1897, the defendant notified the plaintiff that on and after December 1, 1897, the switches to its side tracks in West Dayton, or Miami City, would be closed and locked against the locomotives and ears of the plaintiff, unless a charge was paid therefor, and it has refused to arbitrate, under article twelve of the contract of January 14, .1863, the question whether the plaintiff has the right to use said side tracks without charge. •
    13. The side tracks, whose use is thus in dispute between the parties, were constructed by the defendant, and its predecessor in title, between the years of 1870 and 1897 inclusive, and each of said side tracks connects with the main track of the Dayton & Western railroad; they are fourteen in number, and four of them are laid down on, and three others lead out from, the right of way, used by The Dayton & Union Railroad Company before it took up its superstructure.
    14. The Dayton & Union Railroad Company has used the said main track and side tracks between said stations, for running, by schedule, and detouring thereon, trains of other railroad companies, without the permission of the defendant and against its protest. It has also received and discharged, freight for other railroad companies, with which it has connection, on the east side of the river, on the side tracks in Miami City, for switching charges only.
    15. The nature and extent of the use, made by plaintiff of the defendant’s road, has changed, more or less, with the change of management of the roads, respectively, and the mode of use has not been, jas to the matters in dispute, of that uniform character which would establish a rule of construction of the contract between the parties. At no time, however, before the commencement of this action, did the defendant question the right of the plaintiff to use its main track and the side tracks in use at the time of the making of the contract of January 14, 1863, and provided for therein.
    Nevin, Nevin & Kaibfus, for plaintiff.
    Charles Darlington, for defendant.

       Affirmed by Supreme Court, without report, Railway Co. v. Railway Co. 67 Ohio St. 523. For common pleas decision appealed from, see Dayton & U. Ry. Co. v. Railway Co. 14 Dec. 000.

   WILSON, J.

I. The question whether the contract of January 14, 1863, is ultra vires, will be first considered.

It is argued by counsel for the defendant, that although the plaintiff was without authority to operate this parallel line of fifteen miles of track, for the reason that its charter did not extend over it, yet, that it was a corporation cle facto, operating a line parallel with the Dayton & Western road, cannot be questioned in this action. This should not be said unmindful of the fact, and it would be more accurate to say, that it was a corporation de jure, authorized under its charter to operate a line of road from the Indiana line at Union City, through Greenville; to Dodson, the point of junction with the'Dayton & Western road, which, apart from the-fifteen miles of parallel track, is, beyond question, a connecting line. If it be true, that to operate' the fifteen miles of track, under the agreement made with The Dayton & Western Railroad Company in 1863, was. to exceed its corporate power, and its authority had been challenged by proceedings in quo warranto, the judgment of the court would have been to oust it from doing what it had no authority to do; confining its operation to the charter limits, but not revoking its charter. It would still have continued to be a corporation c/e jure.

It must be conceded, we think, that if this parallel track had never been built, and the contract of January 14, 1863, had been entered into, under the other existing conditions, the roads contracting would, in contemplation of law, have been connecting lines, authorized, under, the statute, to enter into a trackage arrangement for their common benefit.

This contract looks to a return to just that condition. It was maae, in part, for the purpose of enabling the plaintiff to take up its parallel line, which, it is said, it was operating ultra vires, and substitute therefor, a trackage contract, which would be within its enumerated powers. Having taken up its parallel Hack, or agreed to do so, it became and was, simply a corporation de jure, owning and operating a connecting line of railroad, 'within the meaning of the statute.

The fact that the parties stipulated, in the contract, that The Dayton & Union Railroad Company might, if the contract- was terminated, return to the use of the parallel track, did not make it otherwise. No mere intention, or purpose, on the part of a corporation, to violate its duty, can constitute ground for the forfeiture of its charter, or change its legal status. Commonwealth v. Railway Co. 58 Pa. St. 26.

The language of the statute in force at the date of the contract was:

“Any two or more railroad-companies whose lines are so connected, may enter into an arrangement for their common benefit, ■ consistent with and calculated to promote the objects for which they were created.” S. & C. 281.

The language of the present statute is:

“Any two or more companies whose lines are connected and not competing, may enter into an arrangement for their common benefit consistent with,, and. calculated to promote the objects for which they were created.” Section 3300 Rev. Stat.

The intendment of the law is not changed by the addition of the words “and not competing.” ,'It was the original purpose of the statute to preserve competition for the benefit of the public, and that is the settled policy of the law.

There are provisions in the contract in question, which look to the stifling of competition, but they have never been acted upon. The parties have each, under the arrangement, carried on the business of a common carrier, without invoking' the aid of these provisions. * * * It cannot be said, therefore, that the contract would not have been entered into without them. It will be time enough to pass upon their legality when the contracting parties undertake to enforce them. The contract is operative and binding without them, and if found to be unlawful, they can be eliminated, leaving the other provisions of the contract to stand. "Without them, the contract creates competition and is not, for that reason, against public policy. If the business of the public can be done as well on one track as on two, it was not only for the benefit of the companies, but of the public as well, to remove one of the tracks. The inconvenience of doing business with one road across the track of the other, is obvious, and every additional track is an increased burden on the public domain, and an enhancement of the danger to the public, and to property. * * It is the policy of the law to mitigate these necessary evils by doing away with unnecessary tracks. Tide, Secs. 3338, 3339, 3340 and 3341 Rev. Stat.

"We find, therefore, that the companies, entering into this contract, had the corporate power to so do, and that the contract is not against public policy.

If this were not so, we would question the right of the defendant to plead the ultra vires of the contract, as a defense in this action.

It is said in Rawle’s Bouvier, 1154:

“It is a much disputed question, whether unauthorized contracts, neither malum in se nor malum prohibilmn, or where the restriction is implied from the grant of specified powers, are absolutely void and nonenforcible, even where the party has received the consideration for the promise.”

It would seem that the Supreme Court of the United States is committed to the doctrine that such contracts a,re absolutely void, and that no relief can be had under them.

In the case of Central Transportation Co. v. Car Co. 139 U. S. 24, 60 [11 Sup. Ct. Rep. 478; 35 L. Ed. 55], Mr. Justice Gray says:

“When'a corporation is acting within the general scope’ of the powers conferred upon it by the legislature, the corporation, as well as persons contracting with it, may be estopped to deny that it has complied with the legal formalities which are prerequisites to its existence or to its action, because such requisites might in fact have been complied with. But when the contract is beyond the powers conferred upon- it by existing laws, neither the corporation, nor the other party to the contract, can be estopped, by assenting to it, or.by acting upon it, to show that it was prohibited by those laws.”'

It will be found that the doctrine of this case is supported by numerous other cases, preceding', as well as following, in that court.

It is said, however, in the notes to the case of Miller v. Insurance Co. 20 L. R. A. 765 [92 Term. 167; 21 S. W. Rep. 39] :

£ ‘ On the other hand, it has come to be the settled doctrine of many states that a corporation may be estopped to deny its authority to enter into a contract which has been executed, and from which it has derived the benefit which it thereby sought. There is undoubtedly a growing tendency to the latter doctrine, in modern decisions of this country, and of England.”

Some of the leading, cases upholding it are, Whitney Arms Co. v. Barlow, 63 N. Y. 62 [20 Am. Rep. 504] ; Manchester & L. Ry. v. Railway Co. 66 N. H. 100 [20 Atl. Rep. 383; 9 L. R. A. 689; 49 Am. St. Rep. 582] ; Wright v. Hughes, 119 Ind. 324 [21 N. E. Rep. 907; 12 Am. St. Rep. 412] ; Bradley v. Ballard, 55 Ill. 413 [8 Am. Rep. 656].

The courts of many other states are in line with these authorities. Among the very recent decisions to that effect, are, Boyd v. Carbon Black Co. 182 Pa. St. 206 [37 Atl. Rep. 937] ; Bath Gas Light Co. v. Claffy, 151 N. Y. 24 [45 N. E. Rep. 390; 36 L. R. A. 664]. In the latter ease it is held:

“(2) A contract made by a corporation without legislative sanction, and hence in excess of its powers, but involving no moral turpitude, and offending against no express statute, is not necessarily ‘illegal’ in such a sense as to prevent the maintenance of any action upon it.”

This is a strong statement of what is called the new doctrine. Our own Supreme Court would seem to hold with these later authorities.

In the case of Hays v. Gas Light & Coal Co. 29 Ohio St. 330, 340, Judge Boynton says:

“The rule seems well established that where a contract has been executed and fully performed, on the part either of the corporation or of the other contracting party, neither will be permitted to insist that the contract and such performance by one party were not within the corporate power of the company.”

In the case of Larwell v. Savings Fund Soc. 40 Ohio St. 274, 285, Judge Dickman makes the same statement substantially. In both of these eases, Whitney Arms Co. v. Barton, supra, is cited with approval; and in that case it is held, page 506:

“The plea of ultra vires should not, as a general rule, prevail,whether interposed for or against a corporation, when it would not advance justice, but on the contrary would accomplish a legal wrong.”

The contract against which the defense of ultra vires is sought to be interposed in the case at bar, has been recognized as binding and acted upon by the parties for more than the third of a century. Iu pursuance to its provisions, the plaintiff has taken up its track, and the defendant has constructed side tracks, and other business facilities, on the- right of way the plaintiff once occupied, and is claiming the right to exclude the plaintiff from their use in its business. The defendant expressly ratified its terms fourteen years after its execution, in order that it might receive the increased rentals commensurate with the growth of business.

Its treasury has received more than $350,000, the fruits of its enforcement.

These facts, we think, call for the application of the doctrine of the cases we have last cited, and which, we understand, meets the approval of the Supreme Court of Ohio; and independent of the question whether or not the contract was, and is, ultra vires, we hold it would be inequitable and unjust, at this late day, to permit that defense to be interposed.

If we would follow the contrary doctrine, as held by the Supreme Court of the United States, the defendant does not, in its answer, justify the plea. It admits it threatens to, and will, unless restrained by the court, lock its switches to the side tracks in Miami City, against-the plaintiff, and dispossess it, by force, of the use of the property it claims under the contract.

The defendant asks that the contract may be declared void and cancelled, but it does not propose, or seek, a settlement of the rights and equities which may have grown up under the long acquiescence in, and execution of the contract for thirty-seven years.' It simply claims the right to seize the property and dispossess the plaintiff, because the contract is void. Such seizure at once, by force and without adjustment, would leave the plaintiff practically without the facilities to carry on its business. Relying upon the terms of this contract, the agreement for the use of the C. II. & D. bridge has been cancelled. Its right to use the defendant’s bridge must stand or fall with the contract which is sought to be avoided. And if it falls the plaintiff might be shut off entirely from Dayton, east of the river.

Numerous other inequalities might arise,' growing out of the execution of the contract in the past.

“A court of equity will enjoin the seizure of property, anti the ejectment of the possessor, although the same may have been acquired under an illegal contract, until an application has been made for the cancellation of such contract, and a full and fair settlement of all accounts growing out oí its execution in the past.” Western Union Tel. Co. v. Railway Co. 1 McCrary 565 [3 Fed. Rep. 430, 434].

Judge McCrary, on page 569, says:

“What I’wish to emphasize in this case,: as well as in other similar cases, is that the defendants have no right to take their remedy into their own hands. If they have the right to seize this property by force, upon the ground that they bold the contract void, according to the same reasoning the plaintiff would have the right to adjudge the contract valid, and by force retake the property. In other words, force and violence would take the place of law, and mobs would be substituted for the process of courts of justice. The strongest litigant, the one commanding the largest force of men and the most money, would succeed.
“Such a doctrine, if recognized by the courts, as a proper mode of adjusting disputes _ concerning property rights, would lead at once to anarchy:
“If the defendants, after years of acquiescence in the contract in question, after receiving its benefits, and after a property had been built under it to which others made claim, became, suddenly convinced that it was a void contract, it was their duty to apply to the courts for relief, praying a cancellation of the contract, and a full and fair settlement of all accounts growing out of its execution in the past.
“Until they seek .some such remedy, and until a fair settlement upon a full accounting can be had, they will be enjoined from attempting to eject the plaintiff, or to seize the property.”

Under any view of the law, therefore, the defendant is not entitled to interpose the defense of ultra vires, simply, to the plaintiff’s suit, to enjoin it from forcibly seizing the property and rights which are in dispute under the contract.

II. The contract is in the nature of a permanent license, securing to the plaintiff the right to use.the road of The Dayton & Western Railroad Company in the manner prescribed by its terms, as long as the contracting parties shall continue to exist as chartered corporations.

The defendant succeeds to the use and control of the Dayton & Western road, subject to the terms of this contract, which its predecessor, for a valuable consideration, agreed to perpetuate and perform. It is not precluded from defending under the contract, because of the stipulation therein, to arbitrate.

“A mere agreement to ai’bitrate does not preclude a resort to a court of justice; and it cannot be pleaded in bar. Such agreements will not be specifically enforced, nor will the arbitrators be compelled to act.” McGunn v. Hanlin, 29 Mich. 476.

It only remains, therefore, to construe .the contract.

The authority given to The Dayton & Union- Railroad Company, to enter into the contract, as expressed in the agreement, of the reorganizing1 creditors and stockholders of The Greenville & Miami Railroad Company, was to contract “for the use of so much of the road of said Dayton & Western Railroad Company, as lies between Dodson and the city of Dayton. ’1

The incentive to the contract is declared in the preamble to bn “The mutual interest of both companies.” Its purpose was “by proper comity” to arrange “for the convenient dispatch of the business of both companies, upon a single track common to both.”

The Dayton & Union company had the opportunity, and desired to dispose of. its superstructures, between the village of Dodson, and the city of Dayton. But before it would do so, it desired to first acquire from the Dayton & Western company “the permanent right * * * to enter upon its railway track from time to time, and at all times, at either of said points, with the locomotives, cars and trains of- the said party of the second part” (D. & U.). The Dayton & Western Railroad Company was willing to make such permanent grant.

“To carry out this agreement, and.to grant and assure, to the said party of the second part, the permanent right and full use of the said railway track and the side tracks thereof between said points,” the contract was entered into.

Such in substance is the preamble.

The grant is expressed in the first and second articles which are as follows:

“First. For the consideration hereinafter stated, the said party of the first part hereby grants and assures to the said party of the second part, the permanent right to enter upon the main track of the party of the first part, without delay or hindrance, • by properly constructed switches at the .junction, and near the west end of the bridge over the Great Miami river, and with all the trains of the said party of the second part required in the prosecution of its business, to occupy and use, between said points, the main railway tracks and side tracks of the said party of the first part, and in such manner as will fully allow to the party of the second part all reasonable means and facilities for 1he prompt and convenient dispatch of its business.
“Second. While it is the intention of the said contracting parties to make the main track and side tracks of the party of the first part, between the said points, common to the use of both companies, as aforesaid, it is hereby distinctly stipulated that the free use thereof by the said party of the second part shall be at all times subordinate to the necessary use thereof by the said party of the first part, except as hereinafter qualified.”

It will be observed that what the Dayton & Union company was authorized to contract for, was the use of the road of the Dayton & "Western company between these points. Boad is a generic term, and must be held, ordinarily, to include all structural facilities, which appertain to the road proper. That term is not used in the first and second articles of the contract. What is substituted therefor, is main track and side tracks * '* Other articles in the agreement assure to the plaintiff the use of the switches and water stations. These together practically constitute the road, in the sense the plaintiff has the right to use the same.

That they were intended to be such equivalent, is apparent from the language of article thirteen, wherein it is provided, that the payment of rent shall begin ‘1 at the time the party of the second part enters on the use of the road of the party of the first part;” and from article twenty, in which it is provided, that “the party of the second part shall be liable to individuals and the public, for any damage done, to persons or property, by its trains in using the road of the party-of the second part.”

We conclude, therefore, that the language of the general grant is broad enough to include all tracks and side tracks, which were then or have since become a structural part of the road, and must be held to so do, unless there can be found words of limitation in the other - provisions of the contract, which necessarily modify its meaning.

It is argued that such limitation is necessarily implied from the provisions of article three of the contract. We do not so interpret it. It reads:

“Third. It shall be the duty of the party of the first part to provide at Higgins station and at Brookville station, necessary side tracks for the convenient passing of trains and dispatch of business at those points, and to keep the same in good repair, and also the main track, culverts, crossings, bridges, etc., between the west side of the Miami river and the junction; and in addition to the side track, for the purpose of passing trains at Brookville, there shall be additional siding and track for the accommodation of freight.”

This stipulation was made necessary, for the reason, the roads could not operate under the contract, until side tracks were provided for the passing of trains, and the accommodation of freight at the villages on the line; it being a part of the agreement, that the party of the second part should be permitted to take up its whole superstructure. The limitation which it implies is, that the party of the second part could not then require the party of the first part to build any side tracks other than as therein provided. For others than these, it must rely on the necessity that would ■ compel the party of the first part to build, in order to accommodate its own business.

If the plaintiff believed, and had the -right to believe, that it would be entitled to use in common, the side tracks which the defendant would thus be compelled, by the demands of its own business, to build, there is no significance in the fact, that other side tracks are not expressly provided for in the contract. They would come only with the increasa of business,-true, but would be sure to come if needed.

It was provided that the increase of business to the plaintiff, beyond ‡100,000 per annum, should bring a correspondingly increased rental to the defendant; and in that way the defendant was to be compensated, not only for the additional wear and tear, but for the outlay it would make in providing the additional facilities for conveniently dispatching, promptly, the business of both companies on one line common to both.

If anything does, it is the fixed rental of the contract of 1877, that prevents the compensation from being always commensurate with the cost of placing and maintaining the road in a condition equal to the demands of the business of both roads.

This modification of the original contract was made by the defendant’s immediate predecessor, to all of whose 2’ights and liabilities it has ' succeeded.

The provisions of_ article twenty-three, for the increased rental, proportionate to the increase of business, indicates that the parties had in -mind the growth of business, and growth of business means additional facilities — more side tracks.

In view of the fact that the arrangement was to be permanent, lasting as long as the companies retained their charters, it would not be for the mutual interest of both companies, as is said in the preamble, nor making the use of the main track and side tracks common to both, as is the declared intention, nor equitable, hs is the rule prescribed in article twenty-four, to limit the plaintiff to the use of the side tracks existing at the time, or expressly provided for in the contract.

The true measure of its right, in the language of the contract, is, “to occupy and use between said points, the main railway track and side tracks of the said party of the first part; and in such manner as will fully allow, to the party of the second part, all reasonable means and facilities for the prompt and convenient dispatch of its business.”

To put upon the use, the restrictions for which the defendant contends, would be to make it partial, not “full,” unreasonable, not “all reasonable,” and to retard, not render "prompt,” the dispatch of its business.

It is contended by counsel that article twelve, which is constructional in its character, clearly defines the scope oí the whole contract. It provides:

"In giving construction to the contract, due consideration shall be given to the main object, sought to be accomplished by its formation : (1) the use of une track instead of two, between Dayton and the junction; (2) the manner in which the party of the second part may use the tracks of the party of the first part; and (3) the amount of compensation to be paid therefor.”

It is said this simply means to give The Dayton & Union Railroad Company, the use of the main track and side tracks, for the prompt and convenient moving of its trains between said points, and that it obtains no other right under the contract.

This construction seems to us to be too narrow. It has the right to do a freight business over this line. In order to do a freight business, it must have the facilities for reaching out, and gathering up the freight. That is the purpose of these side tracks. The "prompt and convenient moving” of empty trains would be a barren ideality;” and the words of the contract would be as "sounding brass and tinkling cymbal” if they meant nothing more than that.

It is not true, we think, that the local business between Dayton and the junction was not provided for in the annual compensation to be paid by the plaintiff. The right to do a local business is included in the general grant.

Article five, which is also constructional, says:

"This agreement shall not be so construed as to prohibit the said party of the second part from carrying freight or passengers to or from Dayton and the junction, or to or from any intermediate station. ’ ’

The implication is, this right has already been granted, but there is danger that it may be misconstrued.

It is not fairly inferable from article twenty-four, that the compensation agreed upon was not in payment for the right to do a local business. That section reads:

"The superintendents of the companies here contracting, shall agree upon some convenient and equitable mode of doing the local freight business between Dayton and the junction, and equitably dividing the receipts for the same.”

As we understand this provision, it is that the superintendents of the two companies shall agree upon some joint, convenient and equitable mode of doing the local freight business, which each party has the right to do, singly, over one track; that is, while the train service must necessarily be separate, yet the freight, and the moneys received therefrom, may be handled jointly by one set of agents, at one line of freight depots, agreeing that the receipts for the same, may be equitably divided, accordingly as the parties furnish the train service, the stations, and pay the agents for 'handling the business. * * * It is another means of economy which is the connecting thread, running clear through the contract. But whether the plaintiff does its own local business, or agrees with the defendant, on a convenient and equitable mode of doing it jointly, it, all the time, has the right to do it, or the right to an equitable division of the receipts — the one or the other — because it pays the stipulated compensation for the use of the road.

It is misconstruing this provision to conclude from it that the right to do a through business was to be paid for by the annual rental, and the right to do a local business was to be paid for by a division of the receipts therefrom. The receipts pay for doing the business, not for the right to do it, over the line. The annual rental pays for the right to do both kinds of business, through and local. -

The argument, therefore, that the side tracks are not included in the contract, because the right to use them is not paid for, by the compensation stipulated for in the agreement, falls to the ground.

As was said by the learned judge who decided the case below, article eleven, which grants to the plaintiff the right to use the track to remove its superstructure free of charge, was not made necessary because the plaintiff’s use was limited to any of the tracks, but because it was limited to doing the business of the company as a common carrier.

Confessedly the plaintiff had the right to use all the tracks then existing, for the transaction of its business proper, and none other could be used to remove its superstructure.

We find in the contract, no words of limitation, and no provisions, or stipulations, which deny or circumscribe the plaintiff’s right to use the road of The Dayton & Westein Railroad Company, including its main track, all side tracks constructed, or to be constructed as a part thereof, switches and water stations, between the junction at Dodson and the west bank of the Great Miami river at the city of Dayton, for the legitimate transaction of its business as a common carrier; subordinate only to the defendant’s preferential right to the necessary use thereof, for the transaction of its business, as a common carrier, as provided in article two of the contract.

The use of the road by the plaintiff, however, is limited to “all the trains required in the prosecution of its business,” as is stipulated in the first article of the contract.

It may “use said railway between said points, with the locomotives, cars and trains of the party of the second part,” as is said in the preamble. It has not the right to license other railroad' companies, in the prosecution of their own separate business, to run their trains, freight or passenger, scheduled or detoured, over this line for hire, without the consent of the defendant.

It has .not the right to receive and discharge freight belonging exclusively to the business of other railroad companies, on the side tracks of the defendant, in "West Dayton, for switching charges, except as it may be authorized by the defendant.

What, of right, it may do, over this line, is its own business as a common carrier, according to the general meaning and acceptation of that term.

As is well said by counsel for the plaintiff, in his brief, the test is not whose engines, or whose crews are operating, but whose business is being done on the line. Whatever comes to the plaintiff, under the widest comity between connecting and forwarding lines, and whatever it is required, under the law, to receive from other roads, and carry, are its own business, as much as what it may solicit along the line. But it is not authorized to burden this track, or these side tracks, with special privileges, granted by it to other roads; and this, because it is itself a licensee.

Accordingly, a deepee may be entered, enjoining the defendant from in any way interfering with the plaintiff’s right to use the track and side tracks in question, to the extent, in the manner, and for the purpose hereinbefore stated; enjoining the plaintiff from the unauthorized use as herein defined. Each party will pay half the costs,


source: Caselaw Access Project

license: Public Domain

text:
    INTOXICATING LIQUORS — VENUE—CRIMINAL LAW.
    [Franklin (2nd) Circuit Court,
    March Term, 1904.]
    Sullivan, Wilson and Dustin, JJ.
    Andy Kappes v. State of Ohio.
    1. Prejudice Must Exist in Cj.tizessh.ip to Warraxt Change of Venue Under Sec. 6529 Rev. Stat. — Whether Applicable to Mayor’s Court, Quaere.
    Prejudice is not a ground for change of venue under Sec. 6529 Rev. Stat., unless it exists in the citizenship, and the applicant be entitled to a trial by jury; prejudice of the magistrate alone toward the applicant is not sufficient. Whether Sec. 6529 Rev. Stat., applies to mayors’ courts, quaere.

    2. No Trial by Jury por First Offense Under Sec. 4364-20 Rev. Stat.,’ etc.
    The right of trial by jury does not exist in favor of one charged with a first violation of Sec. 4364-20 Rev. Stat. (commonly called the Sunday closing law); and, as the presumption is, that the offense charged is the first, it must affirmatively appear of record that the accused is charged with a second or subsequent offense in order to warrant the reversal of a judgment of conviction for refusing his demand for a trial by jury.
    3. Mayors’ Courts Have Final Jurisdiction op First and Second Offense Under Sec. 4364-20 Rev. Stat.
    Final jurisdiction of both the first and second offense committed by the same person in violation of Sec. 4364-20 Rev. Stat., is conferred upon mayors’ courts, and, although the accused is entitled to a trial by jury for the second offense but not for the first, the question of his right of trial by jury in either event is not jurisdictional. Hence, the record need not disclose that the offense charged, and for which the accused was convicted and sentenced, was the first offense, in order to give the mayor jurisdiction to try the accused without the intervention of a jury. The presumption is, that the offense charged is the first offense, if the contrary does not appear.
    4. Name of Vendee Must be set out in Charging Sale Under Sec. 4364-20 Rev. Stat.
    The offense of selling intoxicating liquor in violation of See. 4364-20 Rev. Stat., is not charged in an affidavit which fails to set out the name of the vendee, or alleges that it is unknown.
    5. Affidavit not bad for Duplicity When one of the • Offenses Charged is Insufficient. ■
    Where the affidavit does not sufficiently charge the offense of selling intoxicating liquors on Sunday, but sufficiently charges the offense of beeping open a saloon on such day, in violation of Sec. 4364-20 Rev. Stat., the affidavit is not bad for duplicity. The former charge being insufficient, all reference thereto may be treated as surplusage.
    6. Exception of “ Drug Stores ” in Seo. 4364-20 Rev. Stat., Negatived, When.
    That the place where. intoxicating liquor was sold was not a regular drug store within the exception contained in Sec. 4364-20 Rev. Stat., is sufficiently negatived in an affidavit by the words “said saloon being a place where intoxicating liquors are * * * exposed for sale and sold for beverage purposes, and not being a drug store, and said (defendant, naming him) not being, then and there, a regular druggist, and not selling and furnishing said intoxicating liquors upon a written prescription of a regular practicing physician for medicinal purposes only, or for pharmaceutical, scientific, mechanical, or sacramental purposes, etc.”

      ERROR to the court of common pleas of Franklin county:
    On August 4, 1903, an affidavit was filed before J. S. Rickets, mayor of the village of Marble Cliff in Franklin county, Ohio, the body of which contained the following language.
    “J. W. Morgan being duly sworn saith that, on the second day of August, A. D. 1903, the said day being the first day of the week, and commonly called Sunday, at the county aforesaid, one, Andy Kappe.s, in' the township of Clinton, did, unlawfully and knowingly, keep open a saloon on said day, and did then and there, unlawfully and knowingly, expose, sell, and furnish, intoxicating liquors to be used as a beverage, said saloon being a place where intoxicating liquors are, on other days of the week, exposed for sale and sold for beverage purposes, and not being a drug store, and said Andy Kappes not being, then and there a regular druggist, and not selling and furnishing said intoxicating liquors upon a written prescription of a regular practicing physician for medicinal purposes only, or for pharmaceutical, scientific, mechanical, or sacramental purposes, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”
    The cause came on for hearing and the defendant successively moved for a change of venue because the mayor was a material witness for the defendant and was prejudiced; that defendant had offered to waive examination and be bound over to the police court of Columbus, Ohio; defendant also demurred to the jurisdiction of the court, and to the sufficiency of the affidavit ; and moved to quash the affidavit because it did not sufficiently charge the keeping open of a saloon on Sunday. These motions and demurrers were each overruled, whereupon defendant demanded a trial by jury which was refused.
    On trial before the mayor, the defendant was found guilty of keeping open a saloon on Sunday, and was fined $100 and costs. On error, the court of common pleas affirmed the judgment of the mayor.
    G. E. Trump, for plaintiff in error:
    The affidavit is insufficient because it is duplicitous, in that it charges two offenses, to wit, keeping open’a'saloon on Sunday, and selling intoxicating liquors on Sunday. Section 4364-20 Rev. Stat.; Weaver v. Mt. Yernon, 6 Dec. 436 (7 N. P. 37<4) ; Lederer v. State, 3 Circ. Dec. 303 (5 R. 623) ; Barnhouse v. State, 31 Ohio St. 39; People v. Keefer, 97 Mich. 15 [56 N. W. Rep. 105],
    Not necessary to allege the name of the purchaser, or that it is unknown. State v. Moseli, 49 Kan. 142 [30 Pac. Rep. 189] ; State v. Pischel, 16 Neb. 608 [21 N. W. Rep. 468] ; Osgood v. People, 39 N. Y. 449; iiarnhouse v. State, 31 Ohio St. 39; Gordon v. State, 46 Ohio St. 607. 625 [23 N E. Iiep. 63; 6 L. R. A. 749], cited in support of the proposition that an affidavit charging illegal sales should set out the name of the party to whom sold, does not even tend to support the ]) reposition.
    Barnhouse v. State, 31 Ohio St. 39, holds directly that Sec. 7215 Jiev. Stat. does not relieve the defect of charging two separate offenses in the same court.
    The affidavit in this case is bad for the reason that the exception stated in the statute, to wit, that said saloon was not a regular drug store, is not set out.
    Exceptions like those contained in Sec. 4364-20 Rev. Stat., must be pleaded in the indictment or affidavit. This is fundamental, and requires that in this case the exception that the defendant’s saloon was not a regular drug store, be set out in the affidavit. People v. Hass, 79 Mich. 449 [44 N. W. Rep. 928] ; People v. Decarie, 80 Mich. 578 [45 N. W. Rep. 491] ; Kaufmann v. Hillsboro (Vil.), 45 Ohio St. 700 [17 N. E. Rep. 557]!
    The court erred in overruling the defendant’s motion for a change of venue. Section 6529 Rev. Stat.; McMillen v. Andrews, 10 Ohio St. 112. 113.
    The provisions of this statute are mandatory, and all that it is necessary for a party to do to secure a change of venue is to ñle his affidavit before a magistrate setting forth clearly the fact that he is a material witness, and it becomes mandatory upon the court to allow the change. People v. Yoakum, 53 Cal. 566; Herbert'V. Beathard, 26 Kan. 746; Paul v. Ziebell, 43 Neb. 424 [61 N. W. Rep. 630].
    Statutes relating to a change of venue should be construed liberally, to the end that a change of venue should not be denied. 4 Enc. PI. & Pr. 380; Packwood v. State, 24 Ore. 261 [33 Pac. Rep. 674] ; Stockwell v. White Lake, 22 Mich. 341, 349; Searls v. Munson, 17 Ill.’558, 560.
    Although Sec. 6529 Rev. Stat. refers to actions before “justices of the peace,’-’ yet Sec. 1830 Rev. Stat. provides that mayors of villages shall have concurrent jurisdiction and power “in criminal proceedings’' with justices of the peace. Applying the rule of liberal construction laid down in the above authorities to the statutes of Ohio, and-bearing-in mind the fundamental principle that fairness and justice requires that no cause should be tried before a court which is biased or prejudiced to any degree, we have sufficient reason for holding that See. 6529 Rev. Stat. applies to actions before mayors of villages as well as justices of the peace. Truman v. Walton, 59 Ohio St. 517, 525 [53 N. E. Rep. 57] ; Ogle v. Plank Road Co. 2 Re. 293 (2 W. L. M. 318) ; Miller y. Oehler, 36 Ohio St. 624, 626.
    The mayor ’.s court erred in. assuming jurisdiction to try the case without the intervention of a jury. Truman v. Walton, 59 Ohio St. 517, 525, 529 [53 N. E. Rep. 57] ; Truesdell v. Combs, 33 Ohio St. 186; Sec. 5, Art. 1, Const.
    The record must affirmatively show that the accused in this case was not entitled to a trial by jury before the mayor could assume jurisdiction to try this cause without a jury, and, also, if the record fails to show that the defendant below was not entitled to a trial by jury, then it is affirmatively shown that the mayor had no jurisdiction to try the ease without a jury, and by so trying the case he exceeded his jurisdiction and the proceedings herein are illegal and erroneous, and the judgment should be reversed. Truman v. Walton, 59 Ohio St. 517, 530 L53 N. E. Rep. 57].
    The affidavit should state every fact necessary to advise the court of the jurisdiction. Bishop, Or. Proced. Secs. 77, 236, 325, 538; Yogel v. State, 31 Ind. 64; Blackburn v. State, 50 Ohio St. 428 [36 N. E. Rep. 18]; Rauch v. Commonwealth, 78 Pa. St. 490; People v. Youngs,.! Caines (N. Y.) 37; Massa v. State, 2 Circ. Dec. 6 (3 R. 9); 18 Am. & Eng. Enc. Law (2 ed.) 38; State v. Yates, 36 Neb. 287 [54 N. W. Rep. 429] ; State v. Dolby, 49 N. H. 483 [6 Am. Rep. 588].
    Jurisdiction cannot be assumed in cases similar to the one at bar, by inferior courts, where the maximum penalty is greater than they have power to inflict. Anear, Ex parte, 114 Cal. 370 [46 Pac. Rep. 172] ; Commonwealth v. Woolford, 108 Mass. 483; State v. Weeks, 14 S. C. 400; State v. Madden, 28 S. C. 50 [4 S. E. Rep. 810] ; Hersom, In re, 39 Me. 476; Berry, In re, 7 Mich. 467; State v. Yates, 36 Neb. 287 [54 N. W. Rep. 429] ; State v. Dolby, 49 N. H. 483 [6 Am. Rep. 588] ; State v. Edney, 80 N. C. 360.
    The sentence is erroneous and should be set aside. Moore, In re, 7 Circ. Dec. 575 (14 R. 237).
    W. B. Wheeler and M. E. Thrailkill, for defendant in error:
    The mayor had jurisdiction. Sections 1824, 1536-773, 1536-777, 1536-783, 1536-876 Rev. Stat.; State v. Smith, 69 Ohio St. 196; Kubach v. State,' 25 O. C. C. 488; Kubach v. State, 14 Dec. 000.
    The affidavit was sufficient. 95 O. L. 87; See. 7135 Rev. Stat.
    Defendant was not entitled to a trial by jury. Secs. 1744, 1824, 6529 Rev. Stat.; Inwood v. State, 42 Ohio' St. 186; Cincinnati v. Stein-karnp, 54 Ohio St. 284, 290 [43 N. E. Rep. 490] ; Ward v. State, 5 Dec. 230 (5 N. P. 81) ; Peters v. State, 11 Dec. 555 (8 N. P. 595).

      Powers to grant changes of venue are strictly statutory, and unless the power be delegated, it cannot be exercised. There is no statutory authority conferred on village mayors to grant a- change of venue. State v. McGehan, 27 Ohio St.'280.
    A motion for a change of venue is addressed to the sound discretion of the court. Hotelling v. State, 2 Circ. Dec. 366 (3 E. 630).
    Interest of a judge must be a pecuniary interest to warrant change of venue.
    Affidavits of prejudice. 48 Bull. 743.
    Defendant was not entitled to a trial by jury. Inwood v. State, 42 Ohio St. 186; Quigley v. State, 3 Circ. Dec. 310 (5 E. 638) ; Mason v. State, 58 Ohio St. 30, 40 [ 50 N. E. Eep. 6; 41 L. E. A. 291] ; see also Cincinnati v. Steinkamp, 54 Ohio St. 284, 290 [43 N. E. Eep. 490] ; State v. Smith, 69 Ohio St. 169.
   WILSON, J.

The plaintiff in error was convicted in the mayor’s court of the village of Marble Cliff in Franklin county, Ohio, of the offense of keeping open on Sunday a room where intoxicating liquors were sold.

He interposed a motion for a new trial which was overruled.

A bill of exceptions was allowed and error prosecuted to the court of common pleas to reverse the judgment. The court affirmed the judgment, and error is prosecuted here to reverse the judgment of affirmance, as well as the judgment of the mayor’s court. It is claimed that the trial court erred in overruling the motion of the plaintiff in error for a change of venue upon the ground that the mayor was a material witness for the defendant, without whose testimony he could not safely proceed to trial.

Without determining the question whether the statute providing for change of venue applies to the mayor’s court, the hearing on this motion does not satisfy this court that the mayor was a material witness, or that the motion was made iu good faith. The evidence tended to show prejudice, but that is not a ground for change of venue, unless it be in the citizenship, and the defendant be entitled to a trial by jury.

The motion was properly overrul

The defendant demurred to the affidavit for duplicity, and that it did not charge the offense of keeping open on Sunday. The court overruled the demurrer. This was not error. The affidavit does not charge the offense of selling intoxicating liquors on Sunday.- What is said in that regard could properly be treated as surplusage, or as descriptive of the kind of room that was kept open. The language negativing the fact that it was a regular drug store is sufficient under the statute.

The defendant demanded a jury trial, which was refused. The mayor’s court had jurisdiction to’ try the case, whether it was a first or second offense, the only difference being that he could try it without a jury if it was a first offense. In either case he had final jurisdiction. The question of the right of the defendant to a jury trial was not, therefore, jurisdictional; and it is not necessary that the record should disclose that it was a first offense in order to give the court jurisdiction. But in order to find that there was error in overruling the demand for the jury, it must affirmatively appear of record, that-it was a second offense1. If that does not appear, the presumption is, the charge was for a first offense. There was no error in the refusal of the jury trial.

AVe find no prejudicial error in the • admission and rejection of evidence, and no error on the record.

The judgment is affirmed with costs, and remanded to the mayor’s court for execution.


author: PARKER, J.

text:
    NEGLIGENCE — EVIDENCE—ELEVATORS.
    [Lucas (6th) Circuit Court,
    October 31, 1903.]
    Parker, Hull and Iiaynes, JJ.
    Chamber of Commerce Building Co. v. Frederick M. Klussman.
    1. Death of Juror’s Wife an Emergency for Which Jury may be Discharged.
    The death of the wife of a Juror during the trial of a civil action, rendering him unable, on account of his bereavement, to continue to act longer that term, is an emergency for which the jury may be discharged within the meaning of Sec. 5195 Rev. Stat., especially where one of the parties objects to proceeding with the remaining jurors.
    2. Prior Negligence and Condition of Premises may be Shown to Show Negligence on the Particular Occasion.
    In an action for damages for an injury sustained through the negligence of the defendant in allowing a door leading to an elevator shaft in its building to remain open, whereby the plaintiff, supposing the cab of the elevator to he there, walked into the shaft and fell to the bottom thereof sustaining the injury complained of, it is competent for plainti^ to show, on the question of notice to the defendant as to the condition of the elevator loc-k and as to whether it was a probable consequence of such condition that the door was open on the particular occasion that plaintiff was injured, that on former occasions the elevator hoy was negligent in leaving the door of the elevator onen, that the hook on the door was out 'of order, and that when the door was pulled shut it would not latch or hook, but would rebound.
    3. Not Negligence to Walk Into Open Elevator Shaft When Door Open, When.
    The entrance to the shaft of a passenger elevator is not ordinarily a place of danger and persons having a right to ride on the elevator on seeing the entrance open may assume that the cab of the elevator is in the shaft at that floor. Hence, a tenant of a building is not guilty of contributory negligence who while going on an errand approaches the elevator shaft to be conveyed by the elevator to the floor where he has his office, and finding the shaft open and being deceived by the resemblance of the inside of the shaft to the cab of the elevator steps into the shaft, falls to the bottom and is injured although by looking closely he might have observed that the cab was not present.
    ERROR to court of common pleas of Lucas county.
    John F. Kumler and J. Kent Hamilton, for plaintiff in error.
    E. I. Twing and George E. Wells, for defendant in error.
   PARKER, J.

The action in the court below was by Klussman against The Chamber of Commerce Building Company to recover for an injury claimed to have been sustained through the negligence of the defendant company in allowing a door leading to an elevator shaft in the Chamber of Commerce building, where Dr. Klussman was a tenant, to remain open,' whereby he was misled, supposing the cab of the elevator to be there, and walked into the shaft and fell to the bottom thereof, and was severely injured. He recovered in the court below a verdict for $5,000, which amount the court required' him to- reduce to $2,500, and judgment was entered for that amount. But the Chamber of Commerce Building Company, not being satisfied, prosecutes error here. They contend that the court erred in discharging a former jury which had heard a part of the testimony in the case. It appears that while the trial of the case was in progress the wife of one of the jurymen died, and that necessarily required a cessation, of the trial for awhile; and afterwards it appears that the. juror came into court and reported that he would not be able to sit in the case any more at that term on account of his bereavement, and the court, upon consideration of the matter, discharged the jury. One of the parties was ready to proceed with the remaining jurors, bur the other party was not, and the court, holding that the other party could not be compelled to proceed, there was nothing left.for the court to do but to discharge the jury; and we think that this was an emergency coming within the provision of Sec. 5195 Rev. Stat., authorizing a court to discharge a jury and that there was nothing in that of which the plaintiff in error had a right to complain.

It is said that the court erred in admitting certain testimony at page fifty-six of the record, and turning to that page we find some testimony upon the subject of the condition of the elevator upon former occasions. One of the complaints about this elevator was; that the boy who operated it was negligent in leaving it open,; another was, that the hook on the door was out of order, and that when the door was pulled shut it would not latch or lock and remain shut, but would rebound, and that the door was open upon this occasion through the negligence of the elevator boy in failing to shut it, or in consequence of such defect in the lock, and this question was asked:

'‘You may state what you observed and how the door operated that day?”

(Referring to a former occasion.)

That was objected to, the objection overruled and defendant excepted. The witness answered:

'T went in to take the elevator and the car was not there. I waited, oh, a moment, I guess, and the car came down and I stepped inside and the car started and the elevator boy pushed the door to and it flew back; my attention was called to it, and I called his attention to it.”

Now we think., that that was competent on the question whether the lock of the elevator worked properly, or whether it was out of order, and whether it was probably in consequence of that that the door was open upon the occasion that the plaintiff below received his injury, and in that view we are sustained by a decision, Colorado Mortgage & Investment Co. v. Rees, 21 Col. 435 [42 Pac. Rep. 42], which is directly in point; and we think too that the ruling rests upon reason and does not require much authority. The third paragraph of the syllabus is as follows:

“Where, in an action for damages for injuries sustained by falling down an elevator shaft, the scope and tendency of the plaintiff’s evidence was to show that the elevator door was open at the time of the accident because of the defective condition of its lock, as claimed by plaintiff, it is admissible to show that the door was open at times antecedent to the accident in corroboration of that claim, and as tending to show a previous and continuous defective condition and notice thereof to the defendant.”

The important question in this case, and the one most debated, is whether the plaintiff below was guilty of contributory negligence. It appears that upon the occasion when he was injured, he left his office on the second floor and went to the elevator and inquired of the boy operating it where he could find a hammer which he desired for opening a box of goods in his office. The boy stated to him that he could probably obtain a hammer from the janitor on the floor next below, and thereupon he went into the elevator and was taken by the boy down to the floor next below, to wit, the first floor of the building, and went to the room of the janitor, which was some seventy-five or eighty feet from the elevator, made known his wants to the janitor, was furnished with a hammer and came back to the elevator. The door was open, as I have said, and supposing that the elevator cab was still there, and without stopping to make careful observation, he walked right in and fell down to the bottom, some fifteen or sixteen feet below, and was injured. It appears that the hallway was reasonably well lighted by the sun. This accident happened about three o’clock in the- afternoon, and there was no necessity for any artificial light in the hall, and customarily artificial lights were in the cabs. The plaintiff says there was no artificial light on this occasion, but we think the preponderance of the evidence establishes the fact that there was a light in the cab. This elevator shaft accommodated two elevators, running side by side and both opening out into the main hall. The one upon which plaintiff had come down one floor was the easterly elevator of the two; being one that was sometimes used for freight, it having a place below that where passengers ride, for the carriage of freight, although it was a regular passenger. elevator. The testimony convinces us that there were electric lights burning in both elevator cabs.

The question is, whether the plaintiff below was guilty of .negligence that will defeat his recovery because of his having failed to make such observation before he attempted to get into the cab as would have disclosed to him that there was no cab there — as would have disclosed to him that he was going to walk into a pit. Our attention is called to a number of cases decided by courts of last resort in different states, in some of .which it has been held that a person going to an elevator shaft where a door was open, and falling down, was negligent and could not recover, and some holding that it was not negligence, but the circumstances of each case differ from every other. It would be interesting to refer to those cases and discuss them somewhat, but for lack of time, it cannot be done by us today. As in other cases of negligence so in elevator cases, each case stands upon its own facts, and it seems to us that these cases cited to us were all correctly decided, and that they are not inconsistent with one another; though somewhat peculiar results seem to have been attained in Massachusetts, where there is in force a somewhat different rule of law as to the burden of proof or the method of presenting a ease than that generally prevailing upon the subject of contributory negligence. There it devolves upon the plaintiff to establish in the first instance that he was free from negligence, that he was not guilty of contributory negligence, and that, as I understand it, is by virtue of a statute of that state. It is apparent that if the plaintiff had made careful observation, he would have discovered that there was no elevator cab at this point at that time. The record discloses that the jury viewed the premises, and therefore we felt at liberty to view the premises and did so. We discovered that the back part of the elevator shaft is plastered, and that it has a somewhat yellowish color, similar to the walls of this court room; that the shaft has for its front open iron work; that the doors are of somewhat the same character, and that the cab at the back is open iron work, so that one looks through this iron work and sees the yellow'back-ground of the plastered Avail at the bade part of the shaft, and our observation was that whether there were lights in the cab or not, it would not be apparent to one approaching the elevator to ride in the cab, that the cab was there or that the cab was absent, unless he made a somervhat careful observation. We came to this conclusion from the testimony. of the Avitnesses, as well as from our own observation, we; having made observations when the cabs were there and .also when the cabs were not there, and when they were lighted and also when they were not lighted. We are convinced by the testimony and by these observations that we felt at liberty to make, that one hurrying along about his business, with his mind somewhat preoccupied, his attention and his thought not drawn directly to the question whether there was an elevator cab present or not; making a casual or a hasty observation with the door open, Avould not readily observe the absence of the cab. If those cabs were made Avith solid backs, having a different color from the Avail of the shaft, for instance, the Avail being black and the back of the cab white, or vice versa, then it would be apparent in an instant. Upon the occasion of the accident, according to the evidence, the westerly cab Avas down and it had an electric light burning in it, ahd avc observed the situation there with that state of facts existing and our conclusion is the same upon that.

Now it does not appear from the authorities that one is required (one who has a fight to ride upon an eleA»ator) to make full, careful and attentive observation, but if he finds the door of the shaft leading to the cab, or Avhere the cab ought to be, open, he is at liberty to assume its presence and to rely to some extent at least, upon the cab being there. We are not prepared to say that one might walk blindly into a place of that kind without looking at all and yet be free from negligence, but if a hasty and cursory observation of the situation would lead one to suppose that the cab Avas there, we do not believe that, under the authorities, he would be chargeable with negligence if he proceeded upon that assumption. It is clear that that is what the defendant did here; he supposed the cab Avas there; he assumed that it was there; -he did this because of the door being open and because of the general appearance of things not attracting his attention to the fact that the cab was not there. Of course, if he had looked carefully doAvn toward the floor, he would have observed that there was no floor there for him to step upon. And directly upon this subject is the case of Tousey v. Roberts, 114 N. Y. 312 [21 N. E. Rep. 399, 400], where it is held:

“An elevator for the carriage of persons, is not, like a rail-road crossing at a highway, supposed to be a place of danger, to be approached with great caution; but, on the coritrary, it may be assumed, when the door is thrown open by an attendant, to be a place which may be safely entered without stopping to look, listen, or make a special examination.”

}Ve think the court charged the jury very carefully as well as very fully in this case, and that the plaintiff in error had no right to complain of the charge. It is in some respects very favorable indeed, to the plaintiff in error. In our opinion the defendant in error was entitled, under the circumstances at the time, to the rule applicable to a passenger upon an elevator, lie having gone there for the purpose of taking-passage upon it as he had a right to do, and yet the court charged against him upon that proposition, and charged that the rule applying to a passenger was not applicable to that 'situation. The court charged the jury that he must exercise ordinary care in approaching the elevator to discover whether there was a cab there or not, notwithstanding the fact that the door was open; and we are hot prepared to say that the jury was wrong in finding that' he exercised ordinary care, nor can we say that, as a matter of law, he was guilty of contributory negligence, and therefore we feel obliged to affirm this judgment.


author: GIFFEN, J.

text:
    JUDGMENTS — PLEADING.
    [Hamilton (1st) Circuit Court,
    January, 1904.]
    Giffen, Jelke and Swing, JJ.
    Martha N. Miller v. Highland Ave. L. & B. Co.
    Judgment not Excursive Because no Supplementary Petition Piled.
    A judgment for the amount due at the date of its rendition, instead of at the date of filing the petition, is not excessive because no supplementary petition was filed, when the petition prays “that an account be taken” and judgment lie rendered for the “amounts found due,” and no new facts have arisen after the filing of the petition, and all the facts necessary to determine the amount becoming due thereafter are averred therein. A supplementary petition is unnecessary under such circumstances.
    Error to the court of common pleas of Hamilton county.
    Chas. B. Wilby, for plaintiff in error.
    Harry R. Weber, for defendant in error.
   GIFFEN, J.

The original action in this case was commenced to foreclose two mortgages to the defendant loan and building company, the defeasance clause of each providing that if the mortgagor shall pay or cause to be paid to said company the dues, interest, premium and fines, the mortgage to be null and void.

The petition alleged that there was due on the first mortgage the sum of $1,569.03, and upon the second mortgage the sum of $1,998.70, making a total of $3,567.73. The amount found due upon the mortgage was $4,195. The proceeds of sale on the mortgaged premises amounted to $3,740; after paying the taxes and. costs, there remained of the proceeds $3,206, which was applied on the indebtedness, leaving a balance due of $940, for which judgment was rendered against the defendant below, Martha N. Miller.

• It is claimed the court erred in rendering this judgment for the reason that it is in excess of the amount claimed to be due in the petition, and that no supplemental petition was filed setting up the additional amount.

It is not contended that the court could not have rendered the personal judgment for the amount claimed to be due under the prayer of the petition, which is as follows:

"Wherefore, plaintiff prays that the equity of redemption of the said defendant in said premises set forth in the first and second causes of action herein be foreclosed, that an account be taken, and that it may have judgment against said defendant, Martha N. Miller, for the amounts found due on its first and second causes of action respectively; that said premises therein described may be sold free of all claim of the defendants herein, and that the proceeds of said sale may be applied to the payment of the amounts due plaintiff, and for such other and further relief as is proper. ’ ’

But the claim is that there was no foundation in the petition for the judgment rendered. The loan and building company did not ask judgment for the amount due at the time of the filing of the petition, but prayed judgment for such amount as the court found to be due, and if the allegations of the petition authorized the court to find the amount due at the time of filing the petition, the same allegations as to- interest, premium and fines, authorized the court to find the amount that had become due subsequent to the filing of the petition. And this is the meaning of the prayer that ‘ ‘ an account may be taken, ’ ’ that is, that the court ascertain from the facts stated in the petition the amount due at the time of the rendition of the judgment. It was therefore unnecessary to file a supplementary petition, no new facts had arisen, and every fact necessary to determine the amount that became due after the filing of the petition was averred. If authority was necessary,, we think the case comes clearly within the case of McHenry v. Building & Loan Co. 9 Circ. Dec. 531 (17 R. 206).

Judgment affirmed.


author: HALE, J.

text:
    BOOKS OF ACCOUNT — ERROR.
    [Lorain (8th) Circuit Court,
    October 12, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Mary W. Burr v. R. H. Shute.
    Ledger Account Competent Evidence When Originad Account Destroyed.
    A ledger containing a correct transcript from account books of original entry is admissible in evidence after proof that the latter are destroyed, and that the transcript therefrom was correctly made, both as to the property and amount sold and the price thereof.
    Error to Lorain common pleas court.
    I. A. Webster, for plaintiff in error.
    F. Rudin, for defendant in error.
   HALE, J.

The defendant in error, Shute, obtained a judgment against the plaintiff in error in the court of common pleas for a small amount, for goods sold and delivered to the plaintiff by the defendant.

The case was tried before the justice of the peace, and an attempted appeal to the common pleas court by the defendant in error, the judgment of the justice of the peace being in favor of the plaintiff in error.

The first error assigned is that there was really no judgment in the justice court, and therefore, nothing to sustain an appeal. We intimated to counsel on the hearing that we thought that judgment was good, and we have no doubt that the judgment, although irregular, was sufficient to determine the rights of the parties.

Second, that the court erred in admitting a certain book in evidence.

Shute owns a meat market, and the cause of action stated in the petition was on an account for meat sold by the defendant in error to plaintiff in error.

The book offered was a ledger. Some of the meat was sold from a meat wagon that was driven about the country by an agent of Shute, who made memorandums of the sales in a little book which he returned to the shop. Some of the meat was sold from the shop, if we believe the defendant in error’s statement, and that was charged in a day book. Both of those books of original entry were posted by the bookkeeper, Boynton, into the ledger. It is shown in evidence that these two books of original entries are destroyed.

The proof is, that the transcript from these books to the ledger was correctly made, both as to the property sold and the amount and the price.

1Ye see no reason why the book was not competent. If the book* of original entry were destroyed, and there was a correct copy of them, such copy iras proper evidence.

Thirdly, it is said the verdict of the jury was not sustained by sufficient evidence.

There was evidence tending to show that there was dealing between the plaintiff and defendant, and tending to establish the claim of the defendant in error. It was sharply met by testimony and evidence on the part of the plaintiff in error; but the evidence is not such as would authorize a reviewing court to reverse the judgment of the lower court on' the weight of the evidence.

Had the verdict been for either party we would not disturb it. That is saying that the court1 did not err in refusing the motion for a ne.fr trial because the verdict was not supported by sufficient evidence, aiul the judgment will be affirmed,