author: Scribner, J. Bentley, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan’y Term, 1893.)
    Before Scribner, Beintley and Haynes, JJ.
    JOHN V. SANFLEET v. THE CITY OF TOLEDO and THE TOLEDO ELECTRIC STREET RY. CO.
    1. Where a municipal ordinance attempts to authorize the construction and operation of a street railway in a public street, the consent of a majority of the abutting property owners must be had counting by the front foot, notwithstanding there is already a double street railway track in the street, and the grantee alleges he does not intend to construct any new track, but to use the tracks already laid.
    2. An electric railway is not an additional burden upon the street of such a character as to entitle abutting owners to compensation for interference with other electrical appliances. Neither will an abutting owner be heard in an objection to a street railway company being granted the right; to occupy and use street railway tracks laid in a street by another company, that being a matter between the companies.
    3. The presentation of the ordinance for a street railway grant to a common council is a sufficient written application therefor.
    4. Consents of abutting owners for a street railway, and not withdrawn, may be counted for the railway at the time of obtaining a second ordinance grant, the first ordinance being invalid.
    5. It is not necessary that the consent of abutting property owners for a street railway be entered on the records of the council passing the ordinance. It is sufficient if they are produced or furnished to the council.

      6. An abutting owner upon the line of a new street railway route cannot object to the operation of the- cars thereof over existing tracks, on the ground that the length of the new track is not under the statute suffleient to authorize the use of the amount of old tracks taicen.
    7. Where a portion of a street railway route fails for lack of proper consents of abutting owners, the municipality may make a new grant as to that portion of the route, when the necessary consents are obtained. The obtension of such curative grant is not the inauguration of a new street railway enterprise de novo, requiring bids upon the rates of fare etc.
    8. Under section 1667, Rev. Stat., mayors may veto an ordinance, or portion thereof, without affecting the remainder, where the portion vetoed can be fairly separated from the remainder.
    9. Ordinarily the rights of parties are to be determined with reference to the facts existing at the time of commencing the action; but where rights have been modified or extinguished during the aetion, and properly set up in supplemental pleadings, the court may enter judgment upon the facts as they exist at the time of the hearing. In assessing costs in such cases, respect should be had to the rights of the parties as they stood when the action was commenced.
    Motion to restore part of answer.
   Scribner, J.

This case conies into this court by way of appeal from a judgment rendered therein by the court of common pleas. While the case was pending in that court, and before the trial was bad, on motion of the plaintiff, certain matters contained in the answer of the defendants was stricken from the answer. The defendants now come in and submit a motion that the matter so expunged or stricken from the answer, be restored. It is that motion which has been heard, and which we shall now proceed to determine.

The proceeding is brought by the plaintiff Sanfleet, as the owner of property abutting upon that part of Summit street, which lies between Adams street and Perry street. He alleges that the defendants, the Electric Street Railway Co. and persons who are parties defendant in the interest of that company, are about to construct and operate a line of electrie railway over certain streets in tlie city, and over that part of Summit street lying between Adams street and Perry street. He says, among other things, that the railway company and those acting in its behalf have not obtained the requisite consents of a- majority of the property owners abutting upon that portion of the street, to the construction and operation of this proposed line of railway, which is essential, it is claimed under the statute.

The defendants answer, and show that the Toledo Electric Street Railway Co. is the only substantial party in interest; the franchise which had been granted to the parties named —Robison .‘and others — having been transferred to that company, it became an incorporated company. It admits that the railway company is about to erect, construct, and operate, its line of street railway, according to the authority-vested in it under the ordinance which is set out in the pleadings in the case. It denies that it has not obtained the necessary consents of the majority of property owners owning property upon the abutting portions of the street, and avers that it had obtained those consents, It denies, however, in that part of the answer which has been stricken out, that these, cousents are necessary; setting forth that a line of street railroad for many' years has been in operation along the portions of Summit street mentioned, now owned and controlled by the Consolidated Street Railroad Co. It says that it does not propose to construct any new line of railway, or lay down any new track; but simply to run its cars upon the tracks already existing there, under the control of Ihe Consolidated Street Railway Co.

One point of contention arises upon the proper construction of the ordinance. It is insisted upon the part of the Electric Street Railway Company that the ordinance does not in fact confer power or authority upon this Electric Street Railway Company to construct a line of railway upon the part of Summit street lying between-Adams street and Perry street. but simply confers power to operate over a line of railroad already existing and owned by the Consolidated Street Railway Company.

The ordinance in question was passed by the city council of Toledo on the 27th of March, 1889, and approved April 5, 1889, and it recites that—

“Whereas, David Robison, Jr., trustee, of Toledo, Ohio, has made application in writing to the common council of the city of Toledo for leave to construct and operate an electric street railroad on and along the hereinafter named streets of said city, and public notice of such application has been given by the clerk of said city in the ‘Toledo Daily Commercial, ' a daily paper published in said corporation, for a period of three consecutive weeks, as required by law; and
“Whereas, the said David Robison, Jr., trustee, proposed and agreed to carry passengers upon said proposed railroad at the lowest rate of fares, and has peviously obtained the written consent of a majority of the property holders upon each of said streets, or parts thereof, on the line of said proposed railroad, represented by the feet front of the property abutting on said several streets along which said railroad is proposed to be constructed; now, therefore,
“Sec. 1. Be it ordained by the common council of the city of Toledo, that the said David Robison, Jr., trustee, his successors or assigns, is hereby granted permission to construct, maintain and operate an electric street railroad with the necessary switches, turn-outs, turn-tables, appliances, equipment, etc., to operate the same upon and along the following streets, and parts of streets, in the city of Toledo, viz:
‘ ‘ Commencing at the city corporation line” — omitting now the description of the streets and parts of streets along which authority is granted to construct this line of railway, we come to this portion- — -“thence along Broadway to Ottawa street; thence along Ottawa street and over the Perry street bridge to Summit street; thence along-Summit street to Adams street; thence along Adams street to Huron street,” etc.

And further on: “Said street railroad shall be a single track road on all of said streets and parts of streets, except on the following, to-wit:

“Commencing at the hew Sumner street bridge; thence along Railroad avenue and Wade street to Morris street; along Mbrris street from the Lake Shore and Michigan Southern Railroad property to Broadway; thence along Broadway to Ottawa street; thence along Ottawa street and over the • Perry street bridge to Summit street; thence along Summit street to Adams street; thence along Adams street.to Michigan street; thence along Michigan street to Canton avenue; thence along Canton avenue to Woodruff avenue; also, on Monroe street from Ontario street to Summit street. On all of said last above mentioned streets, and parts of streets, said road shall be a double track road. Said road shall be constructed, maintained and operated on all of said streets as a standard gauge road. ’'

By this provision it, will be seen that along the streets here named — which includes that part of Summit street extending from the Perry street bridge to Adams street — authority is granted, or purports to be granted, not only to construct a double track road, but the ordinance provides that upon the portions of the streets herein .named the road shall be á double track.

Section 2- -and it is upon this second section that stress is laid in the argument in support of this motion-—

“Authority is hereby granted to David Robison, Jr., trusee, his successors or assigns, to occupy, according to law and ordinance, so much of existing street railroad tracks upon the above named streets as is necessary for the successful operation of said electric railroad therein.

It is claimed on behalf of the Electric Street Railroad Company that where it is proposed to simply operate a line of railroad already constructed and existing- — in other words, where it is proposed by a railroad company to which a franchise is granted to run its cars upon the line of railroad of an existing street railroad company, that the consent of abutting property owners — the owners of the property^ abutting upon that part of the line of railroad so proposed to be operated — is not necessary. But that under the terms of the stat-rite it is-only necessary to procure these consents where fit is proposed to construct as well as operate a line of street railway-; and it is argued here that, taking the language of these sections — reading them together and construing them together — that no power is granted to Robison, or his assigns, the Toledo Electric Street Railway Company, to construct a line of railroad along the streets already occupied by the railroad tracks of any other company; that there is authority granted to use those tracks, but no authority is granted, it is claimed, to construct a new line of railroad along these streets. And counsel for defendants argued as they present their views here, that if there is no authority granted by this ordinance to construct a line of railroad on Summit street between Adams street and Perry street, it is not necessary to obtain the consent of a majority of the abutting property owners to operate existing street railways — in other words, to run their cars over the tracks of existing street railroad companies; and the plaintiff utterly fails to make a case here, so far as it proceeds upon the ground that the consents of the abutting property owners have not been obtained.

Now, it is stated that there are already two railroad tracks constructed and in operation upon this part of Summit street referred to; that it is a sheer impossibility for the Electric Street Railway Company to construct a line of double tracks along the same streets, and that therefore the ordinance, construed in the light of these facts, is to be understood not as conferring the power to construct a new line of railway along this part of Summit street, but simply to operate an existing line.

It will be noticed, however, that there is no limitation of that kind in this ordinance; the power is broad and unqualified to construct a line of railroad along the line of all of these streets. It gives to the Electric Street Railway Company, or attempts to give to it, the option to use existing street railroad tracks along any of the streets enumerated in this ordinance. It does not specify that they shall use existing tracks anywhere in the city, non constat, that because two tracks are already in Summit street,it may not be practical to lay down and operate two additional lines of railroad independent of the tracks already provided. In the event, that the Consolidated Street Railroad Company shall abandon their franchise along that part of Summit street or along any other portion of the route mentioned in this ordinance, we think it is perfectly clear that by the terms of the ordinance the Electric Street Railway Company may lay down its tracks and operate its line of railroad along Summit street or along any other street within the proposed route that may be necessary for the operation of their line. Upon the argument presented herein support of this motion by counsel for defendant — that there is no power granted by the broad and comprehensive terms of this ordinance to construct a new line along Summit street — the very moment that the Consolidated Company should surrender its franchise, should abandon its track and cease to do business along there, or tear up its track,for example, as they might do, the Electric Street Railroad Company would have no power under the terms of the ordinance to construct and operate a line of railroad along that part of Summit street; because it is plain, if the argument is correct, that if there is no power granted by the terms of this ordinance to the Electric Street Ry. Co. to construct a line of railroad along that part of Summit street, the very moment that the existing line of railroad is removed, that moment they would have to again repair to the city council for authority to construct a line of railway there. But there is no limitation. The power is as broad and comprehensive as language can make it, conferring upon the defendants the power and franchise to construct and operate a line of railroad along all of these streets; giving them in the second section the authority to occupy “according to law and ordinance so much of existing street railroad tracks upon the above named streets as is necessary for the successful operation of said electric railroad therein.”' The power is given, and the authority is giveti, but it is not made compulsory upon ‘them to act under that grant. The power is conferred upon them clearly and undisputably, in the language of that section, to construct an independent line of railroad along all of these streets. If they should attempt to construct a line of railroad on the streets already occupied, a question of law arises, so far as the public is concerned, as to whether the authority is properly granted; but, so far as the ordinance is concerned, it properly grants the right and authority to construct and operate that line of railroad.

Now, then, we think it is clear, in this view of the ordinance, assuming it to convey the power to construct as well as to operate, that the consents required by the statute are essential, and that the council had no power to grant this authority under existing statutes — the statutes in force at the time this ordinance was passed — had no power to grant authority to construct, until the requisite consents were obtained. And it would follow from this view of the case, that even if the Electric Street Railroad Co., (as it says in its answer), simply intends not to construct, but to operate the existing line of railroad, they nevertheless would undertake to do that under an ordinance which was passed without the requisite statutory authority; that is to say, the authority being granted to construct.or to operate, at the option of the railroad company, the council have undertaken to do that, in so far as they undertook to authorize the construction of the railway, which they had no power under the statute to do It would make no, difference whatever that the Electric Street Railway Co. undertook to. operate the line of railroad and not to construct it, if in the ordinance under which they undertook to do that, the council had exceeded its authority.

Then again as to whether or not, if the city council had limited this grant as to this portion of Summit street to the right — not to construct but simply, to, operate the existing line of railroad, the Electric Company could run its cars along the tracks of the Consolidated Railway Co. between those points, there being no power to construct in the sense ■that the Electric Company was authorized to construct .an entirely new line of railway — is a very, difficult and important question; and it might be more difficult, in case that the defendant company simply proposed to run horse; cars upon this line of railway without being required to provide any new construction, but simply proposed to ,propel their cars by horse power, and by some turmout, run upon the tracks of the Consolidated Company, and take its. cars .over the line of the Consolidated Company, without any new appliances. But here is the further grant, in this.o.dinance. and indeed the requirement is, in sec, 4:

“The cars of said street railroad shall be propelled and lighted by electric power, and shall be properly heated in cold weather; and for these purposes the said David Robison. Jr., trustee, his successors or assigns, are authorized to construct, operate, and maintain along the line of said street railroad such necessary structures, appliances, and equipment as may be necessary to successfully operate the same. ’'

Now, it appears plainly in this case that the; defendant company, in order to avail itself of this grant — -in order to move its cars upon the line of the Consolidated Street Railway — must do something more: they must provide appliances. Of course, it is well understood, and it is a matter of common knowledge, what is necessary to be done. Going outside of the record, the court may say that we have seen tracks of the Consolidated Company taken up, wires carried along beneath those tracks, and the tracks re-laid for that purpose. There are poles and structures for what are known as trolley wires — -methods adopted for conducting the motive power to the mechanism of the cars, by which they are propelled. All these things are required' and are necessary to be done, in order that the defendant company may avail itself of the privileges granted by this ordinance. - And it appears-to us that insofar as it is. necessary to'.make these changes, and provide these new structures in order to operate under the grant here made, there is a construction of a ..newline of railway in the sense contemplated by the statute, and that it requires .the'consent of the abutting property owners. That is to say, when the abutting property owners consent that railroad cars may be moved along in front of their property by horses as a motive power, they do not consent that another railroad company may resort to electricity as .a motor, and may provide necessary'appliances for making that motive power available. 1 •

We think, therefore, that the motion to restore the- matter stricken out by the court of common pleas, which' proceeds substantially upon the assumption that it is not necessary that the consent of the abutting property owners should be obtained, must be overruled, and the order is- made accordingly.

Mr, Brumback — The court will note an exception.

The Court — It is to be understood, in disposing of this motion, that what has been said, of course, refers only to the dispute between the property owners and the defendants in the case.

Bentley, J.

(on final hearing.]

This action comes into this court by appeal from the court of common pleas. The plaintiif, Sanfleet, is an owner of real property abutting on Summit street in the city of Toledo, Ohio (a city of the first class of the third grade), and on July 5, 1889, brought the action to enjoin the city from permitting, and the other defendant from attempting, the exercise .of the rights and franchises for the construction and operation of an electric street railway on said Summit street, claimed to have .been granted to the defendant, Robison, trustee, his successors and assigns, by an ordinance of said city passed March 27, 1889. It is alleged that said Robison acted in said matter for himself and the other individual defendants, and that beforo the commencement of this action, he had, or the defendants claimed that he had, assigned his interest as trustee to the defendant, The Toledo Electric Street Railway Company, a corporation organized in this state to receive and exercise said franchise and other powers, and which threatens and is about to exercise the rights alleged to be granted by said ordinance, and to construct the necessary appliances and operate cars by electricity on said part of said street over the existing street railway tracks therein.

Plaintiff alleges further, that the consents of owners of property abutting on that part of Summit street to be traversed, which are, by the statute, made a pre-requisite to the granting of such a franchise, were not obtained nor produced to the council prior to the passage of said ordinance, or at any time, indeed, up to the filing of the petition, and that the plaintiff had not given such consent.

The petition further alleges that “either of the defendants, nor any individual or individuals or corporation, has ever obtained or procured the right to construct, maintain or operate the proposed street railroad in said pretended ordinance described, or any part thereof, over and along any existing street railway tracks upon said part of said Summit street, and that none of the defendants has commenced any proceeding to obtain such right, and that Summit street being eighty feet wide, the taking of the existing tracks for the purpose named is not necessary.”

The petition also sets forth the existence) of various electric systems in the city, jsuch as telephone, fire-alarm, telegraph and electric light systems, which are useful and convenient in connection with the plaintiffs said property and serve to afford protection to it in case of fire, and enhance the value of its use and its rental value, and which systems would be interfered with and some of them rendered hurtful and dangerous to said property by the defendant’s threatened constructions and the operation of said electric cars.

The petition also alleges that the said proposed electric railway is to be supplied with electric power along naked and uninsulated wires, and would be more dangerous, annoying, hurtful and injurious to the plaintiff’s property than would a street railway operated by steam power, and that the proposed use of the street would impose upon it and the plaintiff’s rights therein as the owner of said property an additional burden not heretofore contemplated in any dedication of it for public purposes, and injure the special interest of the plaintiff therein.

Issue was tendered by answer as to the allegations regarding the failure to obtain said necessary consents of the abutting property owners, and also to the allegations noted above. After the appeal of the case to this court, certain supplemental pleadings were filed which will be noticed hereafter.

As we understand, the plaintiff does not now press his claim for an injunction upon said allegations regarding injuries to his property from the interference with said other electric systems, nor upon those regarding additional burdens upon the street, this court having heretofore, in other cases, disposed of similar claims, and adjudged them invalid for the purposes of an injunction.

See opinion in the case of Mary E. Simmons v. The City of Toledo et al., 5 Ohio Cir. Ct. Rep. 124. And, as bear ing upon this, also, see case of Railway Co. v. Telegraph Association, 48 Ohio St. 392, especially page 433. Also Railroad Company v. Village of Bell Centre, 48 Ohio St, 273.

As to the claim of a want of necessity and want of power to use the existing street railway tracks, we are unable to see how the plaintiff is interested so as to raise the question. As to the necessity, it was for the city to judge, and if the required: consents were obtained, and if'the council had granted permission to use the- tracks of an'existing- .street railway,, the effect .or unlawfulness of such permission would' be a question between the two street railway companies. (See last paragraph of opinion in Sims v. St. Ry. Co., 37 Ohio St. 556, 571.)

First, as to consents: We find-that the requisite number of consents had not been obtained prior to. the passage of said ordinance.of March 27, 1889,- and that-the same is invalid as to the plaintiff, and a decree in his favor must be entered unless the matters set up in the supplemental answer filed in this court March 30, 1891, require a different judgment. • .

The supplemental answer alleges that on July 28,-1890, thfe common council duly passed an ordinance which was duly approved by the mayor and accepted by tlio Toledo Electric Kailway Company, granting to it the - right to extend its street- railway over and along the part of Summit street in-question, and providing that it should .use the existing street railway tracks, and granting it permission to do so on making proper compensation to the owner of said tracks.

And said supplemental answer also alleges that on December 4,- .1890, said common council passed another ordinance; of the same import, which was also approved by the mayor and accepted by said defendant company, and that before, the passage of said ordinances respectively said defendant company made application therefor, and produced to said council the' written consents therefor of the owners of more than óne-half of said abutting lots and lands.

The validity of these ordinances is challenged by tin* plaintiff on several grounds:

1. That no written application for said franchise had been, made.

2. That sufficient consents were not obtained therefor, unless the old consents, used as a basis for the said ordinance of 1889, were counted, and that this could not be ■ lawfully done.

3. That when consents are produced to the council and made the basis of such an ordinance, they become a part of the proceedings of the council, and what they are should be shown by its records other than by recitals in the ordinance itself; and that no such record exists, and that the consents were not in fact lawfully produced to or considered by the council.

4. That at the time of the passage of the ordinances the •said railroad of the defendant company actually constructed, operated and run over was less than eight times the length of that part of the existing tracks required to be used, and that the defendant had not been lawfully authorized to construct even so much as it had in use.

5. That'the defendant company could not lawfully be permitted to fill the gap in its originally proposed line under the guise of an extension of its road, but that it must proceed as for a new and independent route, which would involve advertising for bids, etc., and that such franchise could not be granted to it otherwise, nor to any person or corporation, but such as would agree to carry passengers at the lowest rates of fare.

O. That as to said ordinance of December 4, 1890, it was not legally adopted.

7. That at all events the rights of the parties must be determined upon the facts as they existed upon the filing of the original petition, and the plaintiff cannot be defeated if originally in the right, by these pod litem motam proceedings.

As to these objections, we hold:

1. That if an application for the passage of the ordinance were required — which we doubt — it was sufficient for the defendant- to present the ordinance itself to the council, through its proper committee, and that a sufficient application was presented.

2. That the said original consents, so far as they were themselves valid, could be connected with others obtained later for the ordinance of .1890.

8. That it is not necessary, to sustain the validity of the ordinance, that the consents upon which it was based should be entered on the records of the council, nor that the fact of their production should be shown by the records otherwise than is done by the records in this case, and we find that the consents were produced to the council in such mannnor as to fulfill the requirements of the law.

4. That plaintiff, as a lot owner, is not interested in the enforcement of the provisions of sec. 3438 of the Revised Statutes, regarding the length of the road in actual operation which must exist in order to justify the use of a part of the existing tracks of another railway company.

5. We are unable to agree with plaintiff’s counsel, that, in order to fill this gap in its route on Summit street the defendant company must proceed as for a new railway enterprise. It is to be remembered that as to the city, and every person other than the plaintiff, so far as we can know in this action, the franchise of the defendant company extends along Summit street and is a proper part of its continuous route; and concurrent and commensurate with this right of the defendant company are the obligations and duties assumed by the defendant company when it bid to carry passengers and accepted the provisions of the original ordinance. As to every one but the plaintiff certainly it was bound to observe the conditions of the ordinance of 1889, and it would be a singular state of affairs, if, supposing this gap were to be filled by proceedings de novo — as for a new enterprise — the defendant company should be awarded the franchise upon its bid being lower then its competitors, though entirely different from and possibly higher than its bid for the franchise of 1889. the route of which covered this identical ground. It occurs 'to us that when the only basis of objection whi%b. the plaintiff may postulate, viz: the lack of- requisite' con-sents, is removed by obtaining the necessa'ry number and .amount, and the council having found that the'requisite con--sents had been obtained, passes an ordinance again permitting the defendant to exercise its franchise oí'e'r' chis part of the route, such action leaves the original objection of theplaintiff without vitality; and the grant is valid, as to him.f •whether it be treated as a technical extension provided for by the statute (which as to him it might well be considered),- ■or not. It is an act requisite to bring into harmony the’ rights of the city and its other citizens as against the defehd-ant company through its original obligations under an ordinance valid as to them, and the rights of the plaintiff as to whom the original grant is invalid.

6. It is probably strictly unnecessary to the disposition of this case for us to pass upon the validity of this ordinance of December 4, 1890, since, if valid, it is, as to this part of Summit street, a mere reiteration of the ordinance of July 28, 1890; but, as this latter 'ordinance embraces part of the other streets, and the question of its validity has been fully argued on both sides and is technically in the case, we have considered the objections peculiar to it.

Sections I to 6 inclusive provide for the extension of the tracks of the defendant company on several parts of streets also embraced in the original route described in said ordiannce of 1889, and requiring the defendant company to use the existing street railway tracks therein.

Then followed sections 7 and 8 as the ordinance was passed by the board of councilman and by the board of aldermen. These contain general provisions, applying to any company, and read as follows:

“Sec. 7. Whenever any company, which is authorized to construct and operate, and has constructed, and is operating a street railway, shall have occasion, or deem it necessary to use and . occupy any portion of the tracks of any existing street railway company in the city of Toledo, such company shall have the right to occupy and use said portion of said existing tracks to the extent permitted by the laws of the state of Ohio, upon payment to the company owning the existing tracks of such sum as annual rental as may be agreed upon between such companies, and in case of failure or inability to make such agreement, then such sum shall be fixed by the common council of the city of Toledo. ’'

Section 8 is similar in its provisions, except that it applies, instead of to the tracks, to the wires,, poles and motive power of the existing street railway company, and provides that they may be used upon payment of such sum as annual rental for the wires and poles and as compensation for the motive power as may be agreed upon between the said companies, and in case of the inability or failure of the companies to agree within twenty days from the application of the one company to the other to enter upon negotiations for such agreement, then such sum shall be fixed by the common council of the city of Toledo.

The ordinance originated in the board of councilmen, and, having passed that board, was afterwards passed by the board of aldermen and submitted to the mayor for his approval. Within the time prescribed by the statute, he returned it to the board of councilmen with his approval, except as to said sections seven and eight, of which he disapproved, for reasons by him submitted in writing, and returned the ordinance. Thereupon a vote was taken in the board of councilmen whether the ordinance should pass notwithstanding the veto of said sections seven and eight, and the vote upon that motion was less than that required to pass the measure over the veto of the payor. The record thereupon recites that the mayor’s veto was sustained. The matter was not further submitted to or considered by the board of aldermen.

It is claimed by counsel for the plaintiff that this leaves the entire ordinance inoperative, for the reason that while the mayor might separately veto an item in an appropriating ordinance, or the like, he had no power to veto such'a portion of such an ordinance as this without affecting the other portions thereof, and that his action was therefore, in legal effect, a veto of the entire ordinance, and that in order to its validity with the said sections seven and eight expunged, action must be taken by each board thereon, and that otherwise it would result that municipal legislation would be' effective without the concurrence of both boards and the' mayor.

This matter must be resolved by a construction of the statute bearing upon it. We suppose that the legislature would have the power, and without violating any provision of the constitution, to provide that municipal legislation might be adopted by agencies other than a council. State ex rel. -v. Hawkins, 44 Ohio St., beginning on page 98, and especially at p. 110, as to this. It has frequently granted such power to boards having a membership narrow in numbers, and possibly there could be no successful constitutional objection to-the legislature’s delegating such power to a single individual. State ex rel. Herron v. Smith, 44 Ohio St. 84.8: And while such construction of a statute should be sought as would bring it into harmony with the general course ‘and-apparent'policy of state legislation in allied matters, yet the purpose and intent of the legislature, when clear and manifest and not forbidden by the constitution, must be given effect by the courts, even should it seem a departure from prior policies.

The statutory provisions respecting the veto power of the mayor are not as guarded and thoughtful as might be wished, since their phraseology has been borrowed from federal and state constitutions without such careful adaptation to the difference in' the conditions involved as would be desirable; but we must nevertheless see what has been provided. Section 1667, Rev. Slat., reads as follows:

“1667. The mayor, if he approves such ordinance, resolution, order or contract, shall sign it; but if he does not approve it, he shall,return it with his objections to the board in which it originated, within ten days thereafter, or, if such board is not in session, at its next meeting thereafter, which objections the board shall cause to be entered in full on its journal, provided, that the mayor may approve the whole, or any item, or part of any such ordinance, resolution, order or contract presented to him for his signature; and if he does not return the same within the time above limited, it shall take effect in the same manner as if he bad signed it.”

Section 1()C8 provides what shall be done by the mayor upon his veto of an ordinance or any part of it.

It seems to be conceded by counsel for plaintiff that if the vetoed sections were parts of the ordinance separable from the residue, such as items of appropriation and the like, the mayor might veto them separately and approve the rest of the ordinance, and it would stand without further action of the council. The effect of such a partial disapproval must depend upon the power of the mayor to declare such a veto; or, manifestly, it would be idle to grant him the power to veto a part separately, if the effect of its exercise must be a disapproval of the whole and to require further action of the council to give life to that part of the measure which ho has approved.

If, then, he mayor have power to veto a fairly separable part of an ordinance, and no such parts as are of the essence of the measure, we think he might well have vetoed the sections seven and eight in question. They are of general application, while the body of the ordinance is a grant upon certain conditions, to a specific company, and they are in no wise necessary to it, and would undoubtedly infringe constitutional rights, and be invalid. But we think from the language employed the conclusion is inescapable that the legislature intended to confer upon the mayor a very broad discretion in using his partial veto, since it has provided that the “mayor may approve the whole, or any item, or part of-any such ordinance, resolution, order or contract presented to him for his signature.” If the exercise of this power should in any particular case result in giving effect to provisions in an ordinance or contract without the modifications provided by the boards of the common council, it might be unsatisfactory; but, as we have said, there seems to be no, insuperable constitutional objection to it, and such a contract would still be subject to such defenses as to want of consider-' ation, etc.,as apply to contracts generally, and such other ordinance would still remain to be tested by the rules as to reasonableness, etc., that ordinarily determine the validity of ordinances.

Baker, Smith & Baker and Pratt & Wilson, for plaintiff.

John F. Kumler, Orville S. Brmnback and Frank H. Hurd, for defendants. . . .

Holding the ordinances of 1890 to be valid, how should they affect the judgment to be entered in this case? Ordinarily the rights of parties are to be determined with reference to the facts existing at the time of commencing the action, and assignments and changes of title and situation during the litigation are not noticed; but where the rights of the plaintiff have been during the pendency of his petition essentially modified or extinguished, and the facts which exhibit this are set up in supplemental pleadings, as is clearly authorized by the code, (sec. 5119), so that a judgment continuing in its nature would not be justly applicable to the situation of the parties when rendered, such judgment ought not to be entered; but, in assessing costs, respect should be had to the rights of the parties as they stood at the commencement of the action.

The injunction prayed for in the petition and amended petition will be refused,and judgment for defendant.will be entered in respect thereto.

The costs, up to the filing of the supplemental'answer, are adjudged against the defendant, The Toledo Electric Street Railway Company; the costs since that time, are adjudged against the plaintiff.


source: Caselaw Access Project

author: Scribner, J.

license: Public Domain

text:
    (Sixth Circuit—Huron Co., O., Circuit Court
    April Term, 1894.)
    Before Bentley, Scribner and Haynes, JJ.
    PHILLIP ECKSTEIN et al. v. THE BOARD OF EDUCATION OF CHICAGO JUNCTION et al.

      School Districts — Proceedings to detach certain territory from one township and attach the same to another- -Taxation- -Act of 1888, 85 Ohio L. p. H2, void.

    Error to the Court of Common Pleas of Huron County.
   Scribner, J.

This is an appeal from the judgment rendered by the court of common pleas. The action is brought to test the legality and validity of certain proceedings had in the Probate Court of Huron County, whereby it was sought to detach certain territory from the townships of Richmond and New Haven,and to attach the same to the village school district of Chicago Junction.

The Revised Statutes contain this language, section 3898: "‘A part or the whole of any district may be transferred to an adjoining district, by the mutual consent of the board of education having control of such districts; but no such transfer shall take effect until a statement or map, showing the boundaries of the territory transferred, is entered upon the records of such boards, nor, except when the transfer is for the puprose of forming a joint sub-district, until a copy of such statement or map, certified by the clerks of the board making the transfer, is filed with the auditor of the county in which the transferred territory is situated; and any person living in the territory so transferred may appeal to the county commissioners, as provided in section 3967, and the commissioners, at their first regular meeting thereafter, shall approve or vacate such transfer. ” ■

On the 27th of February, 1893, as it appears from certain' papers that are included in the evidence submitted here, there was filed with the Board of Education of Chicago Union School District, Huron county, Ohio, an application brought under the section of the statute which I have just read, and which application reads:

“Gentlemen: We, the undersigned electors residing in. the' territory hereinafter described, do hereby respectfully pray your honorable body to so change the boundary lines of your school district to include the following described property to-wit:
“In section 3 of New Haven Township, that part of lot 48- not already in the district; lots 27 and 28; lots 46 and 47.
“In section 2 of Richmond township, that part of lots 25 and 30 not already included in said district; all of lots 24, 26, 29, 31 and 32. All of said described property being in Huron county, Ohio. All of which we ask to have included in Chicago Junction school district, believing it to be greatly to our educational interests, as’ well as that of others. And thus we shall ever pray. ’' Signed by five persons.

There also appears among the papers, a statement certified by 'J. A. Pittsford, clerk of the joint meeting, as it is subscribed, and dated Chicago, March 27, 1892, that certain proceedings were had, under the application which I have j.ust read,at which the several boards of education refused to grant the prayer of the petitioners, so that the application, as it appears in these papers and elsewhere in the case, was disallowed.

Sections 3928 to 3945, inclusive, relate to the formation, of sub-districts, and the provisions are of such a character as to lead, us to the conclusion that they have no application to the proceedings of the character such as was subsequently had here.

Sections 3946 to3948. inclusive, relate to another proceeding having in view the accomplishment of the same purpose.

Section 3946 reads: “A petition may, in like manner, be filed with the clerk of the board of education of any township praying for the creation of an additional sub-district, or for changing the lines of sub-districts, or for the creation of a special school district, or for changing the lines of special or village districts,and adjoining sub-districts; but when a special or village district is interested in such proposed change, the petition may be filed either with the clerk of the township board, or the clerk of the board of education of such special or village district; and when any such lines have been so changed, they shall not be altered by any board or boards of education until after the expiration of three years, except upon the written consent of two-thirds of the electors-residing within the territory affected by the change. ’ ’

Section 3947 reads: "Such petition may be filed with the clerk of the board of education of such special or village district, with the clerk of the board of education of the township, or, if the changes sought by the petition affect the territory in more than one township, with the clerk of the board of education of either township; and, upon the filing thereof, the members of the board or boards interested shall be notified, as provided in section 3933."

Section 3948 roads: "It shall be the duty of such board or boards to meet and consider the petition within thirty days from the time the same is filed, but on failure to do so within sixty days of such time, or if the board or boards meet and grant, or refuse to grant, the prayer of the petition, a petition or remonstrance may be filed with the probate judge of the county, by either party, as provided in section 3934; and, thereafter, Such proceedings may be had thereon, and they shall have the same effect as is therein-provided for the formation of joint sub-districts. ’ ’

These boards of education of the three, districts had their last meeting on the 27th of March, 1892, at which time a failure to agree upon the proposition, submitted, took place.'

On the 28th of April a petition was filed — at least,it bears that date----with the Probate Judge of Huron county, and' reads:

"Hon. G. T. Thomas, Probate Judge of Huron county, state of Ohio. Whereas, the boards of education of Rich-mond township, New Haven and Chicago Junction Village School District, in said county and state, having refused, at.a meeting held in Chicago Junction on Friday, March 25,, 1892, to grant our petition, or any part thereof, praying to have the boundary lines of- Chicago Junction School District, changed. Said petition having been filed with J, A. Pitts-ford, Clerk of Chicago Junction School District, February 27, 1892, as prescribed by law.
“Therefore, we, the undersigned petitioners and also electors not petitioners, residents in the territory hereinafter described, do hereby most respectfullly pray and petition you to appoint three judicious, disinterested men of said county, and not residents of either townships or districts to be affected by this petition, to consider the propriety of changing the boundary lines of Chicago Junction School District, so.as to include the following properyt, to-wit, more or less as the commission may decide. In section 8, of New Haven Township, that part of lot 48, not already in the district; all of lots 27, 28, 46 and 47. In section 2, of Richmond township, that part of lots 25 and 30, not already included in "said district; all of lots 24, 2(5, 29, 31 and 32. And thus we shall pray.” This is subscribed by six petitioners.

It appears that on the 25th of May, by the record of the ’ proceedings had in the probate court, a bond was filed as required by the statute, securing the payment of the costs of the proceedings in the case. Then, afterwards, on the 7th •of May, 1892, the probate court made an order of this tenor:

“This day this cause came on for hearing upon the petition hereinbefore filed by M. O. Rettig et al., and the same being found in all respects according to law, and the petitioners having filed an undertaking for costs as required by law; it is ordered that T. K. Strimple, D. D. Benedict and John C. Sheffield, three judicious and disinterested men of the county, not resident of any township to be affected by this proceeding, be, and they are hereby appointed commissioners, to act in the premises; it is further ordered that said commissioners meet at the school house in Chicago Junction on the 16th day of June, 1892, at ten o’clock A. M. to discharge the duties of their appointment, after being first duly sworn as required by law,that they may make a report of their proceedings herein, on or before the 16th day of July, 1892; it is further ordered that notice of the filing of said petition, and of the time and place of meeting of said commissioners, be published for four consecutive weeks in the Norwalk Reflector and the .Experiment News, two papers of opposite politics,printed and of general circulation in said county.”

On the 10th of Jime, 1892, the petitioners asked, and obtained leave to file an amendment to their petition, and that amendment was filed on the 11th of the same month. The amendment sets out that the filing of the petition with the clerk of Chicago Junction School District, on the 27th of February, 1892, was duly signed by qualified electors, residents of the territory sought to be included within the said Village School District, and that a petition was filed asking that the boundary lines of said village district be so changed as to include in such district the same territory specifically described in the petition herein. That upon the filing of said, petition, which was addressed to the Board of Education of said Chicago Junction Village School District, notice was duly given, in manner and form as by law required, of the filing of such petition,and naming a suitable and convenient time and place for the Boards of Education of said Village District and of Richmond and New Haven townships in said Huron county to meet; that the several members of said boards were duly notified of such meeting. That more than sixty days have elapsed since said petition was filed.

The records of the proceedings in the probate court show the various steps that were taken in the proceeding — the giving of notice under the statute, the motion by the attorney for the parties defendant- -a proceeding to dismiss it for want of jurisdiction, the action of the court on that motion, and the report of the commissioners and the return of the. map with that report, and the confirmation of the proceedings and the report of the commissioners by the probate judge on the 7th of July, 1892.

The report of the commissioners with the map attached, forming a part of the report, shows the granting of the request substantially, of the petitioners; shows the territory which was detached from the sub-districts of Richmond and New Haven townships nud attaching them to the Chicago Junction Village School District, and sets out also a description, by meets and bounds, of the entire territory as actually changed and constituted under this proceeding.

In’ their report, the commissioners say, among other things: “We find that the lines of the village district of Chicago Junction and of the adjoining sub-districts in Richmond and New Haven townships, in said Huron county, (to-wit, sub-district No. 8, in Richmond township,and No. 8, in New Haven township), should be so changed as to include the territory described in the petition within the boundaries of said village district, together with lot No. 45 in section No. 8, in said New Haven township, and all of that part of lot 23 in the second section of Richmond township lying east of north and south road.”

The commissioners then proceed in their report to give the reasons for determining upon this change. The report of the commissioners, as I have already said, was confirmed by the probate court.

In this petition, it is insisted that these.proceedings were unauthorized and illegal, and the court is asked to enjoin the authorities from carrying into effect or execution the change which is provided for in the action had in the probate court.

The prayer is: “Whereas, these plaintiffs pray that due inquiry may be made of the matter herein complained of; that upon such inquiry, the said board of education of the village district of Chicago Junction may be forever en joined and restrained from levying any taxes or assessments upon the lands or personal property of these plaintiffs, or of such persons as stand in like case with them, or from assuming or taking territorial jurisdiction over their lands; that the said auditor may be enjoined and restrained from assessing of taxes or assessments certified to him by said village district board of education against or upon the lands or personal property of these plaintiffs, or of those in whose interest this action is brought, and from entering any such taxes or assessments so assessed upon the tax lists- of the said county; that the said treasurer may be enjoined and restrained from collecting, or attempting to collect from said lands or property or the owners thereof any taxes or assessments levied thereon by said village board, or by said auditor upon the-certificate of said board; that the said township board of education may be severally enjoined and restrained from interfering with the attendance at the schools within said districts of the children of these plaintiffs, and other persons,and for such other, further and different relief as may be found proper.

Upon the argument of counsel for the plaintiffs and in his brief filed with us, this claim is made: We contend that the application or petition filed in probate court, should show that the petition had been filed with the boards of education of the same townships whose territory is to be affected as with the village district, as in this case.

It may be remarked in regard to this matter, or this claim, that it is averred in the petition filed in probate court,, “that the boards of education of Richmond township, New Haven township and Chicago Junction village school district, in this county and state, having refused, at a meeting held in Chicago Junction on Friday, March 25, 1892, to grant our petition, or any part thereof, praying to have the boundary lines of Chicago Junction school district changed, said petition having been filed with J. A. Pittsford, clerk of Chicago Junction school district, February 27, 1892, as prescribed by law.

If it be essential to the jurisdiction of the probate court to act in the matter that it be averred in the proceedings, that the application has been filed with the boards of education of the several townships to be affected,and has been denied, it appears to us that this statement in the petition filed in the probate court upon which the foundation is laid to proceed, has complied with that requirement, that is, more particularly through the amendment filed some time later.

We are not entirely clear that it was essential that a proceeding in probate court should show that a prior action was had under section 8893.

It is further said by counsel, and the claim is made in their brief upon this point, and is a part,substantially, of the general proposition which he has stated, that as to the application filed in the probate court, that the record should show that action had been taken previously, and that the boards of education had failed to meet, or, having met, had failed to agree, and that the purpose of the petition is to change the lines of the village district and adjoining districts. T.t is insisted that this averment is jurisdictional.

It is also suggested in the argument that the petition filed, while it did show what territory was to be detached from the adjoining townships and attached to Chicago Junction school district, yet it did not show, and did not purport to show wherein the lines of the New Haven township district, or of the Richmond township district would be changed. . .But, if I comprehend correctly the proposition as stated, it would seem necessarily to follow that when the petition set forth the territory which it was sought to detach from one township and attach to another township, that thereby it was shown not only in what respects the territory thus added to was changed, but also in what respect or particulars the territory from which part was to be detached and attached to another township was to be changed.

tf it be shown that it is sought to take, by certain lines, a certain defined territory from one township, or one village school district, or from a township school district, and to attach that territory to an adjoining school district, it would seem, as I have just stated, to follow evidently that the change that was sought to be made in the township from which the territory was to be taken would require a corresponding change in the township to which the territory was to be attached.

There seems to be some difficulty as to what may be the result of a change like this as to the power of taxation in a school district as newly constituted, with the territory detached and the territory from the adjoining township attached to it; as to whether or not the officers of the district as so enlarged, for example, in this case, the authorities of the Chicago Junction village school district, have the authority to levy a tax upon the property of the territory which is detached from the other two townships and added to Chicago Junction school district, or whether the parts formerly belonging to the old township districts are to be taxed by the authorities of those districts, and the fund certified under the statute, so as to be expended by the authorities controlling the Chicago Junction districts. We have found some difficulty about that. We are not entirely clear in our own minds in regard to it.

We find, as reflecting some light upon the matter, this language in the section relating to classification — section 3885 to 3891, inclusive. Section 3885 reads: “The state is hereby divided into school districts to be styled respectively city districts of the first grade of the first class, city districts of the second grade of the first class, city districts of the first class, city districts of the second class, village districts, special districts and township districts. ’ ’

In sec. 3886 the language is: “Each city having a population of ten thousand or more, including the territory attached to it for school purposes, and excluding the territory within its corporate limits detached for school purposes, shall constitute a school district, to be styled a city district of the first class; and each district that has heretofore been constituted a city district of the first class shall remain such.”

Then section 3887 reads: “Each city of the second class, having a population of less than ten thousand by the census of 1870, including the territory attached to it for school purposes, and excluding the territory' within its corporate limits detached for school purposes, shall constitute a school district, to be styled a city district of the second class. ’ ’

Section 3888 reads: “Each village, including the territory attached to it for school purposes, and excluding the territory witliin its corporate limits detached for school purposes, shall constitute a school district to be styled a village district.” And so on as to the townsihp districts and special districts.

Now, take Chicago Junction village school district which seems to fall within section 3888, we find it provided as I have read, that each village, including the territory attached to it for school purposes, and excluding the territory then within the corporate limits detached for school purposes, shall constitute a school district to be styled a village district.

Now, if this language of these different sections relating to classification of school districts is to be treated prospectively as well as presently, we find that in this case the territory which is attached to it for school purposes, together with the district as it originally stood, constitute a school district to be styled a village district, and if these proceedings in the probate court be effectual to the end had in view in taking th.em, so that the territory detached from each of these townships adjoining Richmond and New Haven, and attached to Chicago Junction village school district, constitutes with that of the former village district, a village school district, and if it is treated in that view, then the property embraced therein may be taxed by the authorities of the Chicago Junction village school district, and it is not subject to the power of taxation by the old directors or board of education of the districts from which those parcels, are detached, because they no longer form any part of them.

Now, although as I say we are not satisfied entirely with this view, this construction of the statute, yet our- conclusion is that that is the view to be applied to this case, and it results from that that these proceedings are to be regarded as legal and valid; that the prayer for injunction upon the part of these plaintiffs must be denied except to this extent: 'There was issued by Chicago Junction school district bonds to the extent of three thousand dollars issued under authority of the act passed in 1888, contained in the 85 Ohio L. 412. That act was without any doubt a sepcial act; it is an act that undertakes to confer in terms, upon the school authorities of Chicago Junction village school district power to borrow money and to issue bonds and the levying of taxes to provide for the payment of those bonds, and the act comes directly within the prohibition contained in section 1 of article 18, where it is declared that the General Assembly shall pass no special act conferring corporate powers. This act is a special act. About that there is no doubt. It does confer corporate powers, because it confers power to issue bonds and borrow money. That question has been many times decided; by the Supreme Court of the United States, among others.

S. M. Young, for plaintiffs.

Walker & Severance, for defendants.

To the extent that it is sought to charge upon the property of these plaintiffs, thus represented by them, anything for taxes for the payment of interest and principal upon these bonds, the injunction should be granted, and to that extent only is granted..

Our understanding of the decision of the Supreme Court in the cases that were cited in the argument is, that the people who are brought in by proceeding duly taken under the statute, become subject to a burden of taxes assessed under valid laws. The order of the court will be that the costs shall be divided in this case.


author: Allread, J.

text:
    (Second Circuit—Franklin Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Shearer, Summers and Allread, J.T.
    THE TOLEDO & OHIO CENTRAL RAILWAY COMPANY v. AMBACH. SAME v. DAGES, ANDREWS & COMPANY.
    1. Where the agents of a railway company accept for transportation as baggage a passenger’s trunks, knowing, or having good reason to know, that such trunks contain merchandise and not personal baggage, such company is liable, as a common carrier, for the safe delivery of said property.
    2.”But where such agents do not know, or have good reason to know, the contents of such trunks to be other than personal baggage, and accept them for transportation upon the belief that they contain only personal baggage, the obligation of the company is that of a bailee for hire, and it is bound only to the exercise of ordinary care in respect to such property.

      3. Where such property js received by the company in good condition, and is lost or damaged in transit by forces and agencies within the control of the company, the burden rests upon the company to show due care.
    4. Where such trunks and contents were not the property of the passenger delivering them for transportation, but were in his possession and control as agent of the owner, an action will lie at the suit of' such owner to recover for any loss or damage arising from a violation of the duty of such company in respect to such property.
   Allread, J.

The above cases involve,substantially, the same questions, and are, therefore, considered together.

The defendants in error each brought an action, in the Court of Common Pleas of Franklin County, against the Railway Company, to recover the value of certain trunks containing merchandise, which were, while en route from Glouster, Ohio, to Williamsport and Columbus, Ohio, on the cars of said company, destroyed by fire, ensuing as the result of a collision. The defendants in error,having each recovered .judgments, it is sought by these proceedings in error to obtain a reversal of the judgments.

It is shown that the traveling salesmen of each of these defendants in error, intending to take passage on the trains of plaintiff in error, at Glouster, delivered, in the one case, three large trunks, such as are usually carried by traveling salesmen, containing ready-made clothing, and in the other case four large sample cases, containing boots and shoes, for shipment, as baggage. The station agent accepted the same, charged and received sixty cents in one case, and $1.00 in the other, for excess baggage amounting to 400 pounds in each case, and issuéd ordinary baggage checks and excess baggage receipts therefor.

There is some contention as to whether the traveling salesmen paid their fare cash on the train or by mileage coupons. This, however, is only important in considering the stipulations of the mileage-ticket limiting the liability of the company.

. It they procured goods to be checked as baggage, and took passage on the train of plaintiff in error, intending to pay cash fare, and did so pay, when demanded by the conductor of the train, they were passengers from the time they boarded the train, and the company is charged with the same responsibility concerning their baggage, as if they had purchased tickets at the station.

It is clear that the merchandise contained in the trunks and sample cases was not the personal baggage of the traveling salesmen, and the company was under no obligations to accept the same as baggage and transport it as part of the passenger’s contract of passage, but was entitled to demand that it be shipped as merchandise. The company, however, in the cases before us, did not refuse to accept the goods, but having accepted them, it becomes important to determine what was the obligation of the company.

If the trunks were presented by the salesmen to the agent of the company, and such agent had no knowledge that they contained other than personal baggage, and there was nothing in the circumstances attending the transaction, or the nature or appearance of the trunks or sample cases, from which it could be reasonably inferred that such trunks contained merchandise or articles, other than personal baggage, then the company, acting through such agent, would, be justified in assuming that the contents of the trunks were personal baggage, and the only obligation it assumed concerning the goods was that of a bailee for hire.

The obligation of a common carrier, as insurer, did not exist. Penna. Co. v. Miller & Co., 85 Ohio St. 548.

If, however, the agent • of the 'company receiving the goods, knew or ought to have, known from the appearance of the trunks or sample cases, or other circumstances, that the trunks and sample cases did not contain personal baggage, but contained merchandise, used by the agent in facilitating his business, and, nevertheless, accepted the same, and undertook to transport it, the obligation of a common carrier was then assumed, and the company was bound to safely carry the goods to their destination, subject only to loss by act of God,public authorities, or loss arising from negligence of shipper or inherent properties of the goods.

The right of the company to ship in that maimer as part of the passenger’s contract, personal baggage only, may be waived, and is waived when the agent of the carrier, with knowledge that it is not personal baggage, accepts the goods and undertakes to make the shipment.

If the railway agent accepting the goods, did not know or have good reason to know that the trunks and sample cases contained other than personal baggage, the company was bound, as we have said, to use the ordinary care of a bailee for hire, and if the goods were lost by the want of such ordinary care on the part of the railway company, it is liable for the loss so occasioned.

There is a well defined distinction between cases involving the loss of property, not personal baggage, by the negligence of the carrier, where such property is retained in the custody of the passenger and those where the property has been delivered into the custody of the carrier. Beach on Railways, sec. 907.

If the passenger retains the custody, the railway company is, in no sense, a bailee, and the conclusion is, that unless the property so in the possession of the passenger is actually personal ba.g,gage, so as to be included within the terms of his contract as a passenger, the company is not liable for its loss. But when the carrier assumes possession of the goods, although not personal baggage, it is bound to exercise ordinary care to protect the property from injury and loss, and for the violation of such duty is liable. Under the former rule falls the case of The First Nat’l Bank v. M. & C. Ry. Co., 20 Ohio St. 259.

The question of the liability of a carrier for negligence, where the contents of a package transported was unknown to it, was involved in the case of The Despatch Line v. Glenny, 41 Ohio St. 166; but the Supreme Court Commission reversed the judgment below, upon another ground, and declined to give any opinion on the subject of the special charges which involved the question of liability for negligence. That case, however, was essentially different from the one under consideration here. There the shipper was required to state the contents of the package shipped, and falsely stated it to be “rough glass” instead of plate glass. A different degree of care and risk was involved. The misrepresentation of the shipper was a fraud, which absolved the carrier from liability as insurer, but how far, if at all, it was relieved from liability for negligence was not decided. It was suggested, however, by Granger, C. J., in the opinion, that “the carrier had a right to know the nature of the goods in order to determine the amount of care required to defeat any charge of negligence.”

There is no claim in the present case that a higher degree of care is required or greater risk involved in the transportation of the goods actually shipped, than if it had been personal baggage; nor can it be claimed that this case falls within the rule asserted, where articles of great value are shipped in small packages, of apparent trifling nature, without notice of their value to the carrier; for here the bulk of the packages fairly suggested to the carrier their value.

It may well be asserted by the carrier, that it should be held to exercise no greater care than such as would be required in respect to the goods it supposed it was carrying, but where it is not disputed, but that, what would be ordinary ■care as to personal baggage, would also be ordinary care as to the merchandise actually carried, the carrier should not be heard to complain if it failed to exercise that care plainly required of it, measured by the duty it actually assumed.

If it had exercised such ordinary care as would be required in the,shipment of personal baggage it would have been redieved from liability. If it did not exercise such ordinary ■care, we know of no rule'exempting it from liability for loss •occasioned as the result of such negligence.

It is claimed that if it was shown that the traveling salesmen took passage and paid their fare by mileage coupons, ■of thousand-mile tickets, containing a stipulation limiting the liability of the company, and which the salesmen had as•sented to, such stipulations prevent recovery beyond the sum named.

We think it is well settled that such stipulations are not valid, to prevent full recovery, where the loss is the result ■of negligence of the carrier. Express Co. v. Bachman, 28 Ohio St. 144. And the burden is on the carrier to prove the want of negligence on its part. Davidson v. Graham, 2 Ohio St. 144; Graham v. Davis, 4 Ohio St. 362, 380.

It is urged that the court below erred in charging the jury in substance that if they found the loss of the goods was the result of the collision, there arises a presumption of negligence on the part of the company.

This charge was important in the event that the jury found that the liability of the company was that of a bailee, or in case the salesmen were traveling upon tickets containing a stipulation limiting liability.

There is no doubt that such a rule as to the burden of proof prevails in cases involving personal injury to a passenger, but in such cases the rule is founded upon the obligation of the company requiring it to exercise the highest degree of care, and the presumption is that such care will prevent collisions.

In cases of bailment only ordinary care is required, and the general rule is that negligence must be proven and not presumed.

Ordinarily, it is the province of the jury to determine the-inference to be drawn from the circumstances, on the question of negligence. Yet it is clear that cases arise where the burden of proof shifts and rests upon the bailee.

We have not been able to find any case involving a bailment where the question of the burden of proof to establish liability for goods lost is the result'of. a collision, was decided; but we think the charge may be properly sustained upon another ground.

It has been sometimes held that where property has been intrusted to a bailee for hire in good condition and returned in bad condition, or not returned at all, the law shifts the burden upon the bailee to show due care on his part. Cummins v. Wood, 14 Ill. 416; Brown v. Waterman, 10 Cush, 117; Bennett v. O Brien, 37 Ill. 250; Funkhouser v. Wagner, 62 Ill. 50,

This rule follows, ex necessitate, from the nature of the case. The bailor can not show the circumstances of the loss except by the bailee or his servants, who are presumed to be adversely interested. The law, therefore, casts the burden of showing due care on the bailee.

An examination of the cases, involving the carriage of goods by public or common carriers, discloses that the doctrine of casting the burden of proof upon the carrier, incases involving nelgigence, arises ex necessitate from the nature of the case and from considerations of public policy. The carrier having possession of the goods can readily show the circumstances attending the loss, while the bailor can only do so by the. testimony of the agents and servants of the carrier.

We are not satisfied that a different rule exists as to the burden of proof to establish the liability of the railroad company in the case before us, as a bailee, from that where its obligation as a common carrier by the stipulation of the bailee is reduced to liability for negligence only.

It is said in Davidson v. Graham, supra, by Bartley, J.:

“The liabilities of a common carrier may be distinguished into two distinct classes, according to their nature. The one, a liability for losses by neglgect on the part of the carrier, or his agents, which is the liability of a bailee, arising from omission of duty. The other, a liability for losses by accident, mistake or other unavoidable occurrence, without any actual fault on the part of the carrier, which is the liability of an insurer, and founded upon a principle of the common law. ’ ’

In that case,and also in the opinion of Ranney,J., in Graham & Co. v. Davis, supra, it is laid down that, by express stipulation, the carrier may be exempted from liability as an insurer j but is held to his liability as bailee, for- negligence. -Considerations of public policy prevent the carrier being exempted from liability for its own negligence, and the burden of proof is upon the carrier to show due care. In those cases the liaiblity of the railway company became that of a bailee only, by reason of an express stipulation consented by the shipper, relieving it from liability as insurer. Here the liability of the carrier is that of bailee by reason of the act of the shipper absolving the carrier from further liability.

The same considerations of public policy arise in the one case as in the other and ex necessitate, cast the burden of proof upon the company to show ordinary care.

The charge, therefore, which assumes to cast the burden upon the carrier, after proof of the collision, is not prejudicial to the company.

The charge of the court below in each of the cases being in harmony with the views here expressed, was not erroneous. Neither do we think the verdict was against the weight of the evidence, or contrary to law. The plaintiffs below sought to support their claims against the railway company upon the theory, first, that the goods were lost through the negligence of the railway company; second, that the station agent knew or ought to have known that the contents of the trunks was other than personal baggage, and the company was liable as a common carrier.

The evidence, we think, fairly supports the verdict upon either proposition. It was contended on the latter proposition that the station agent receiving and checking these trunks had no actual knowledge of their contents. The rule of the company required the station agent, when merchandise was presented to be shipped as baggage,to reject it, and require it to be shipped as merchandise; but the same rules advised the agents that they were not “presumed to know the contents of trunks.”

We think, from the evidence, the station agent actually knew these trunks contained other than personal baggage. Conceding that he was not expressly informed as to the contents of the trunks, yet it would be difficult for us to conclude that such agent supposed that these traveling salesmen carried three large trunks in one instance, or four sample cases in the other, to carry personal baggage. Besides, the station agent receiving the goods, testified that he knew that the trunks and sample cases were such as traveling salesmen ordinarily carried.

An instruction to agents that they are not “presumed to know the contents of trunks, ’ ’ does not avail where the agent actually does know- to a reasonable certainty, and will not relieve such carrier from responsibility for its negligence.

The claim that the plaintiffs in error are not liable for the loss of goods of defendants in error because the contract of carriage was not made with them personally,is not well taken. Bank v. Railway Co., 20 Ohio St. 259-276; 67 N. Y. 208.

A. W. Scott, Barger & Barger and Taylor, Taylor & Taylor, for plaintiff in error,

Powell, JRicheiie & Black, contra.

There being no prejudicial error in the record, the judgments of the court of common pleas will be affirmed.


author: Summers, J,

text:
    (Second Circuit—Franklin Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Shearer, Summers and Allread, JJ.
    PLATT v. BLACK, Receiver.
    An action against the drawer of an over-check for the amount thereof is limited to six years.
   Summers, J,

This suit was commenced in the court of common fleas by James T. Black, as Receiver of the Plain City Bank, against W. W. Platt, the plaintiff in error. The petition consisted of ten causes of action, each of which, after showing the capacity of the plaintiff to maintain the action, was in the form following:

“The plaintiff alleges that on the 26th day of December,. 1881, the said defendant, in and by his said name of W.W. Platt, gave his written obligation and request, to the said Plain City Bank to pay to the order of Hager & Allen, a partnership doing business by that name, for the defendant’s-use, the sum of ten dollars, which written obligation and request was duly endorsed by the said Hager & Allen, and upon said order and endorsement the said Plain City Bank thereupon, accordingly, paid the said sum of ten dollars, for the use of said defendant, pursuant of the said request.
“ The said written request is of the following tenor, to-wit r
“No. 1. Plain City, O., Dec. 26, 1881.
“Plain City Bank.
“Pay to Hager & Allen or order, Ten 00-100 Dollars,. $10.00. W. W. Platt.’’

Then follows an allegation of a request of payment by the-plaintiff and a failure to do so by the defendant, and of the-amount due.

Following the tenth cause of action was this: “All of said written requests were delivered to, and retained by, the said Plain Oity Bank, and are now in plaintiff’s possession as such receiver,” and a prayer for judgment.

A general demurrer was filed to each cause of action, and was sustained. The plaintiff then amended each cause of action by adding the allegation that the defendant at no time had any funds in the bank with which to pay the check set out in that cause of action. The defendant then demurred to each cause'of action,because it appeared on the face thereof that the cause of action therein set forth accrued more than six years prior to the beginning of the action. This demurrer was overruled, to which the defendant excepted, and then filed an answer, setting up the statute of limitations. The trial resulted in a verdict for the jDlaintiff, upon which judgment was entered.

The sole question presented for our determination is, whether the right of action of a bank, which has paid a chéclj drawn on it by a drawer who had no funds on deposit to meet it, against the drawer is barred in six years; or in other words whether the action is upon the check, and if so, whether it is a written promise within the meaning of section 4980, of the Revised Statutes; or whether the action is upon an implied promise of the drawer to repay the drawee, and barred in six years by the provisions of section 4981.

The petition was filed December 22, 1892. The most recent of the checks is dated February 14, 1883, and, as the averments of the petition are to the effect that the checks were paid at their respective dates, we think the court erred in' overruling the demurrer to the amended petition if the six years’ limitation applies, and it is unnecessary to state how the question is otherwise raised.-

Counsel for plaintiff below rely mainly upon Haines v. Tharp, 15 Ohio, 130, which was an action brought by the indorsee against the indorser of ■ a promissory note, and especially upon this statement in the opinion: “An endorsement is a written contract of which the law declares the effect; and, when counted upon, it is the foundation of the action; and a plea that the cause of action did not accrue within six years, is no bar under the statute, ’ and claims the legal effect of giving the check is the same as the legal effect of the endorsement.

A check upon a bank purports to be drawn upon a deposit of funds, and it is the fact that it purports to be so drawn which constitutes it a check. “And it does not import a loan from the bank to the drawer; but if it appears that the check was paid without funds, an implied promise is raised that the drawer will refund the amount to the bank.” Daniels on Negotiable Instruments, secs. 1566, 1569, 1647.

The check is merely a receipt or voucher. The action is for the money paid to the drawers’ use, and upon the implied promise to repay it, and the check is merely evidence that the payment was made.

We do not think the legal effect of an over-check is the same as that of an endorsement of a bill of exchange, but that the relation of the parties is similar to that, between a surety and his co-surety in a suit for contribution.

In Camp v. Bostwick, 20 Ohio St. 337, it was held: “The right to contribution among co-sureties is not founded on the contract of suretyship, but is based on an equity arising from the relation of co-sureties,” and Mcllvaine, J., page 347, says: “From this relation the common law implies a promise to contribute in case of unequal payments by co-sureties. ”

And in Neilson & Churchill v. Fry, 16 Ohio St. 553, it was held that an action by a surety against his co-surety for contribution is limited to six years.

In Dickerson v. Turner, 15 Ind. 4, it was held: “Where the drawee of a bill of exchange accepts the bill, the presumption is that he has funds of the drawer in his hands, to-the amount^of the bill; but the presumption may be rebutted.

Arnold & Morton, for plaintiff in error.

Selwyn N. Owen, for defendant in error.

“The drawee may show that he accepted and paid the bill for the accommodation of the drawer; and, then, the law will imply an undertaking on the part of the drawer to indemnify the acceptor, who, on such implied obligation, may have Ms-action against the drawer.”

In this case counsel for the appellants assumed that the action was on the bill itself and not upon the implied undertaking, and insisted that the plaintiffs had misconceived their-remedy; but the court held that the action was not upon the-bill, but was founded on an implied promise arising out of' the facts alleged. See also Suydam v. Westfall, 2 Denio, 204; Griffith v. Reed, 21 Wendell, 502; Church v. Swope, 38 Ohio St. 493, 495.

The judgment will be reversed, the verdict set aside, the-demurrer to the amended petition sustained, and the cause remanded for further proceedings.