text:
    RIGHTS ENFORCIBLE IN STATE COURTS ARISING UNDER FEDERAL LAW.
    Circuit Court of Lorain County.
    Margaret Waring, Administratrix of the Estate of J. S. Waring, Deceased, v. The Baltimore & Ohio Railroad Company.
    Decided, April 19, 1912.

      'Wrongful Death — Jurisdiction of Ohio Courts — In Action for Recovery for Death of a Citizen of Another State Killed in Another State— Federal Employers’ Liability Act Confers Such Jurisdiction in Certain Cases — Section 10771, A. & P. Anno. General Code.

    The general rule that no action can be maintained in the courts of this state upon a cause of action for wrongful death occurring in another ' state, except where the person wrongfully killed was a citizen of Ohio, is so modified by the federal employers’ liability act, of April 22, 1908, regulating the liability of interstate railway carriers for the death or injury of their employes while engaged in interstate commerce, as to permit the maintenance of such action by the proper representative of a deceased employe of an interstate railway carrier, though said employe was not a citizen of Ohio and was killed in some other state.

      C. W. Dille, J oseph L. Stern and F. M. Stevens, for plaintiff in error/

      J. M. Lessick, Charles Lessick, and H. C. Johnson, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
    Error to the court of common pleas.
   The plaintiff is a citizen of Pennsylvania, where.she was duly appointed administratrix of the estate of her deceased husband, J. S. Waring, who at the time of his death was also a citizen of that state.

In her representative capacity, she brought suit in Lorain county, Ohio, for the benefit of herself, as widow, and the child of the deceased, against the railroad company, upon which due service was made, to recover for the alléged wrongful death of her husband.

She alleged in her petition that the defendant was a common carrier by railroad, engaged in commerce between the states of Pennsylvania and West Virginia; that the deceased at the time of his death in January, 1910, was employed as a locomotive fireman on a passenger train then running between the cities of Pittsburgh, Pennsylvania, and Wheeling, West Virginia, and while so employed was killed in the state of Pennsylvania by the negligent acts of the officers, agents and employes of said carrier, for which wrongful death she prayed damages. Her petition showed a right to recover under an act of Congress relating, to thp liability of common carriers by railroad to their employes in certain cases, approved April 22, 1908, if that act is controlling in the case.

If the state law regulating such actions, then known as Revised Statutes, Section 6134a, is controlling, she was not entitled to maintain'her action, for her decedent was not a citizen of Ohio at 'the time of his death, and the Supreme Court of this state, construing said section of the Revised Statutes in the case of Railroad v. Chambers, 73 O. S., 16, has said:

“No action can be maintained in the courts of this state hpon a cause of action for wrongful death occurring in another state, except where the person wrongfully killed was- a citizen of Ohio.”

The common pleas court followed the Ohio legislative act and decision referred to, and sustained a demurrer to. the petition. Its ruling in that respect is here for review, with the added light thrown on the subject by the decision of the Supreme, Court of the United States in the ease of Mondou v. New York, New Haven & Hartford Railway Co., 32 Sup. Ct. Reporter, 169, decided,by that court January 15, 1912, some ten days after the decision in the case under discussion. Unfortunately, each side in this controversy cites the Mondou ease as in his favor* Paragraphs 7 and- 8 of the syllabus of that case are as follows:

''“7. The enforcement of rights under the employer’s liability act ibf .April ¡22, .-1908,- regulating the liability of interstate-rail: way carriers for the death or injury of their employes while engaged in interstate commerce, can not be regarded as impliedly restricted to the Federal courts, in view of the concurrent jurisdiction provision of the judiciary act of August 13, 1888 (25 Stat. at L., 433, chap. 866, U. S. Comp. Stat., 1901, p. 508),' p. 1, and of the amendment made by the act of April 5, 1910 (36 Stat. at L., 291, chap. 143), to the original employers’ liability act, which, instead of granting jurisdiction to the state courts, presupposes that they already possess it.
“8. Jurisdiction of an action to enforce the rights arising under the employers’ liability act of April 22, 1908, regulating the liability of interstate railway carriers for the death or injury of their employes while engaged in interstate commerce, may not be declined by the courts of a state whose ordinary jurisdiction as prescribed by local laws is adequate to the occasion, on the theory that such statute is not in harmony with the policy of the state, or that the exercise of such jurisdiction will be attended by inconvenience and confusion because of the different standards of right established by the congressional act and those recognized by the laws of the state.”

Difficulty in the application of the law thus stated grows out of the use of the expression: “courts of a state whose'ordinary jurisdiction as prescribed by local laws is adequate to the occasion.”

For plaintiff it is urged that this means courts of general jurisdiction in which transitory civil actions, such as this one is, are cognizable, and that the common pleas court of Ohio is such a court.

Defendant claims that the common pleas court of Ohio is limited by local laws in its jurisdiction over actions for wrongful death occurring in another state, to those cases where the person wrongfully killed was a citizen of Ohio, and therefore, that the jurisdiction of said court is not adequate to this occasion.

Some support for this view is claimed in the following quotations from the opinion in the ease, which was deliveréd by Mr. Justice Van Devahter:

“We come next to consider whether rights arising under the congressional act may be enforced, as of right, in the courts of., the states when their jurisdiction, as prescribed by local laws, is adequate to the occasion. The first of the cases now before us-(the Mondou. case) was begun in one of the superior courts of the state of Connecticut, and, in that case, the supreme court of errors of the state answered the question in the negative. That, however, was not because the ordinary jurisdiction of the superior courts, as defined by the Constitution and laws of the state, was deemed inadequate or not adapted to the adjudication of such a case, but because the supreme court of errors was of opinion: (1) that the congressional act impliedly restricts the enforcement of the rights which it creates to the federal courts; and' (2) that, if this be not so, the superior courts are at liberty to decline cognizance of actions to enforce rights arising under that act, because (a) the policy manifested by it is not in accord with the policy of the state respecting the liability- of employers to employes for injuries received by the latter while in the service of the former, and (b) it would be inconvenient and confusing for the same court, in dealing with cases of the same general class, to apply in some the standards of right established by the congressional act, and in others the different standards recognized by the laws of the state. ■
“Because of some general observations in the opinion of the supreme court of errors, and to the end that the remaining ground of decision advanced therein may be more accurately understood, we deem it well to observe that there is not here involved any attempt by Congress to enlarge or regulate th§ jurisdiction of state courts, or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction, as prescribed by local laws, is appropriate to the occasion, and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress, and susceptible of adjudication according to the prevailing rules of procedure. We say ‘when its ordinary jurisdiction, as prescribed by local laws, is appropriate to the occasion,’ because we are advised by the decisions of the supreme court of errors that the superior courts of the state (Connecticut) (we courts of general jurisdiction, are empowered to take cognizance of actions to recover for personal injuries and for death, and are accustomed to exercise that jurisdiction, not only in cases where the right of action arose under the laws of that state, but also in cases where it arose in another state, under its laws, and in circumstances in which the laws of Connecticut give no right of recovery, as where the casual negligence was that of a fellow servant.”

The trouble with the application here sought to be made of the paragraphs quoted is that it fails to distinguish between laws- conferring jurisdiction on courts, or the power and authority to administer remedies, and laws creating rights and remedies. . ,

The Constitution of Ohio (Article TV, Section 4), provides that: ‘ ‘ The jurisdiction of the courts of common pleas, and of the judges thereof, shall be fixed by law”; and Section 11215 of the General Code provides that: ‘ ‘ The court of common pleas shall have original jurisdiction in all civil eases where the sum or matter in dispute exceeds the exclusive original jurisdiction of justices of the peace,” etc.

Here is adequate jurisdiction to hear and determine plaintiff’s ease, if she has any right of action. Of course, if she has no right of action in Ohio, then we say that the courts of Ohio have no jurisdiction to entertain her complaint, and thus we use the word “jurisdiction” in two senses. But the matter is made clear by further quotations from the opinion of Mr. Justice Yan Devanter:

“The suggestion that the act of Congress is not in harmony with the policy of the state, and therefore that the courts of the state are free to decline jurisdiction, is quite inadmissible, because it pre-supposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the states, and thereby established a policy for all. That policy is as much the policy of Connecticut as if' the act had emanated from its own Legislature, and should be respected accordingly in the courts of the state. As was said by this court in Claflin v. Houseman, 93 U. S., 130, 136, 137; 23 L. Ed., 833, 839:
‘ ‘ ‘ The laws of the United States are laws in the several states, and just as much binding on the citizens and courts thereof as the state laws are. The United States is not a foreign sovereignty as regards the several states, but is a concurrent, and, within its jurisdiction, paramount, sovereignty. * ' * * If an act of Congress gives a penalty (meaning civil and remedial) to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should-not be enforced, if not provided otherwise by some act of Congress, by a proper action in a state court. The fact that a state court derives its existence and functions from the state laws is no reason why it should not afford relief; because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the state as it is to recognize the state laws. The two together form one system of jurisprudence, which constitutes the law of the land for the state; and the courts of the two jurisdictions are not foreign to each other, not to be .treated by each other as such but as courts of the same country, having jurisdiction partly different and partly concurrent. * * * It is true, the sovereignties are distinct, and neither can interfere with the proper jurisdiction of the other, as was so clearly shown by the Chief Justice Taney, in the case of Ableman v. Booth, 21 How., 506, 16 L. Ed., 169; and hence the state courts have no power to revise the action of the federal courts, nor the federal the state,, except where the Federal Constitution or laws are involved. Bxit this is no reason why the state courts should not be open for the prosecution of rights growing out of the laws of the United States, to wMch their jurisdiction is competent, and not denied.’ ”

How then stands the law in Ohio today? When the Chambers ease was affirmed by a divided court in the Supreme Court of the United States, Mr. Justice Moody said (207 U. S., 142, 147) :

“There was no other statutory provision on the subject. The Supreme Court held that the action authorized by this statute for a death occurring in another state was only where the death was that of a citizen of Ohio; that the common law of the state forbade such action; and that as the person, for whose death damages were demanded in this case, was not a citizen of Ohio, the action would not lie.”

It is quite evident, from a perusal of the several opinions in the Chambers ease, that the courts did not doubt the adequacy of the jurisdiction of the courts of Ohio, but held that there was-nothing in that case, no cause of action, for that jurisdiction to operate upon.

But now, in this case, we have another statutory provision on the subject, an act of Congress, which we are bound to recognize ás operátive within the state.

Quoting further from the Mondou ease:

“True, prior to the present aet, the laws of the several states were regarded as determinative of the liability of employers engage in interstate commerce for injuries received by their employes while engaged in such commerce. But that was because Congress, although empowered to regulate that subject, had not acted thereon, and because the subject is one which falls within the police power of the states in the absence of action by Congress. Sherlock v. Alling, 93 U. S., 99; 23 L. Ed., 819; Smith v. Alabama, 124 U. S., 165, 473, 480, 482; 31 L. Ed., 508, 510, 513, 514; 1 Inters. Com. Rep., 804; 8 Sup. Ct. Rep., 564; Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S., 96, 99; 32 L. Ed., 352, 353; 2 Inters. Com. Rep., 238; 9 Sup. Ct. Rep., 28; Reid v. Colorado, 187 U. S., 137, 146; 47 L. Ed., 108, 113; 23 Sup. Ct. Rep., 92; 12 Am. Crim. Rep., 506. The inaction of Congress however, in nowise affected its power over the subject. The Lottawanna (Rodd v. Heartt), 21 Wall., 558, 581; 22 L. Ed., 654, 664; Glouscester Ferry Co. v. Pennsylvania, 114 U. S., 196, 215; 29 L. Ed., 158, 166; 1 Inters. Com. Rep., 382; 5 Sup. Ct. Rep., 826. And now that Congress has acted, the laws of the states, in so far as they cover the same field, are superseded, for necessarily that which is not supreme must yield to that which is. Gulf, C. & S. F. R. Co. v. Hefley, 158 U. S., 98, 104; 39 L. Ed., 910, 912; 15 Sup. Ct. Rep., 802; Southern R. Co. v. Reid, No. 487, 222 U. S., —, ante 140; 32 Sup. Ct. Rep., 140; Northern P. R. Co. v. Washington, No. 136, 222 U. S., —, ante, 160; 32 Sup. Ct. Rep., 160. ”

Yielding, therefore, to the highest law of the land we hold that Revised Statutes, Sec. 6134a, now General Code, Sec. 10771, and the case of Railroad v. Chambers, 73 O. S., 16, no longer apply to an action for wrongful death' of an employe occasioned by the negligence of a common carrier by railroad while engaged in interstate commerce. They are superseded by the paramount aet of Congress.

As the Legislature of Ohio could amend Section 6134a of the Revised Statutes, and thereby change the rule laid down by the Supreme Court in the Chambers case, so the Congress of the United States, under the commerce clause of the Federal Constitution, can render inapplicable both the legislative aet and the decision of the state court to such cases as come within the terms of the federal act, as this one. does,

The judgment of the common pleas court is reversed, and the cause remanded, with instructions to overrule the demurrer to the petition, and for further proceedings according to law.


source: Caselaw Access Project

license: Public Domain

text:
    LIMITATION ON STREET ASSESSMENTS.
    Circuit Court of Franklin County.
    Mary S. Page v. City of Columbus et al.

    Decided, January 24, 1912.

      Assessements — Construction of Act Limiting Reassessments for Repaving to One-half the Cost — Restriction Applies Q-enerally — Constitutional Law — Section 3822.
    1. The provision of Lection 3822, P. & A. Anno. G. C., limiting reassessments for .repaving improved streets to one-half the cost, does not violate the constitutional inhibition as to retroactive or retrospective legislation, and applies to improvements made before and after the enactment of the said act.
    2. No distinction is made by this act as to material used or cost of the original improvement, but the restriction applies generally to all improvements whereby an unimproved street has been transformed into an improved one and the cost assessed specially against the abutting property.

      W. S. Page, for plaintiff.

      E. L. Weinland, City Solicitor, J, L. Davies and G, A. Leach, Assistant City Solicitors, contra.
    Rockel, J.; Dustin, J., and Allread, J., concur.
    Error to common pleas court.

       Affirmed, without opinion, Columbus v. Page, 86 O. S., -.

   Plaintiff in her petition below alleged that she was the owner of certain properties located in the city of Columbus; that one of her said properties is located on Sandusky street in said city, and that on or about December 6, 1890, in front of the premises said street was graded, a boulder paving put in the gutters, five ineh Berea curb was put in said street. The roadway was graveled and an assessment made and paid against said property, at the rate of $1.07 per foot; and that she avers that said work done upon said street was an improvement upon said street, said street being a public street in the city of Columbus and that said improvement was necessary and beneficial and substantial at the time it was made; that afterwards on November 10, 1900, the said Sandusky street in front of the premises hereinbefore described was surfaced with crushed gravel, the roadway was repaired and an assessment was made and paid upon the property, and the same was a substantial improvement on said street; and avers further that during the year of 1908 the city of Columbus duly authorized the improvement of Sandusky street in front of the premises hereinbefore described and levied an assessment upon the property, the same was a lien thereon; that the grade of said Sandusky street was not changed from its former grade by.reason of the.last improvement; and avers further that said street had been formerly improved by said city and she should not be assessed for-more than one-half of the cost and expense of repaving said street.

Further allegations are made that. the county treasurer was demanding the same and that there would be a penalty added thereon and other matters which go to the facts that determine the right of injunction, etc.

There are other tracts or lots in reference to which substantially the same averments are made.

In the court below the city filed a demurrer which was sustained by the court, and plaintiff, not desiring to plead further prosecutes error to this court from the decision of the court below in sustaining the demurrer.

The question to be considered in this ease is purely one of a statutory construction. The third paragraph of Section 53 of the municipal code, which was Revised Statutes, 1536-213, and which now appears as General Code, 3822, as it was worded in said Section 53, reads as follows;

‘ ‘ Provided that whenever special assessments have been levied and paid for the improvement of-any street or other public place, the property so assessed shall not again be assessed for more than one-half the cost and expense of repaving or repairing such street or other public place, unless the grade of the same is changed.”

In the General Code the wording has been varied somewhat, but not materially.

The contention of the plaintiff is that by the plain wording of this statutory provision, she is not liable for more than one-half of the assessment, and it will be conceded that the plain words in this statute would seem to support her contention;

' The defendant, however, 'and the court below agreed with it, contends that plaintiff in her cause of action does not bring herself within this statutory provision.

The defendant bases its ground of contention on two reasons:

The first is that-said statutory provision does not apply, to improvements made before the passage of said act.

The plaintiff contends that the Supreme Court in the case of Gray v. Toledo, 80 Ohio St., 445, has held to the contrary and supports her claim. The syllabus of this case is as follows:

‘.‘Section 53 of the municipal code of 1902 (Section 1563-213, Revised Statutes, prior to the amendment of April 21, 1904, 97 O. L., 126), which provided that assessments upon a lot for any and all purposes, within a period of five years, were limited to thirty-three per centum of the tax value thereof, is so construed that assessments levied prior to that enactment, and within the five-year period, are to be considered in applying the limitation to assessments subsequently levied. ”

This decision and the syllabus in reference thereto was given in construction not to the clause of said Section 53, under consideration in this case, but to the first clause thereof. The clause under consideration by the Supreme Court read as follows:

“In all cases of assessment, the council shall limit the same to the special benefits conferred upon the property assessed, and in no case shall there be levied upon any lot or parcel of land within the corporation, any assessment or assessments for any and all purposes, within a period of five years, exceeding thirtythreé per cent, of the tax value thereof. ’'

It will be observed that the language of the clause that the Supreme Court had under consideration did not indicate that it should be applied to past assessments, but rather that it applied to the present and future, and from the language used the court would have been justified in so holding. In the clause applicable to the case at bar, the language used clearly indicates that it is to be applied to a ¡past transaction. And for that reason, it appears to us that the present case is a stronger one for the plaintiff than the one which was decided by the Supreme Court.

The statute applicable .to the case at bar specifically says “that when any special assessments have been levied and paid.” This certainly refers to assessments that have been levied and paid in the past, and there is ho reason to be gathered from the language of the statute why it should be limited in its application to assessments that have been levied and paid after the passage of the law, neither is there any reason why the Legislature should not have made it apply to original assessments that have been made in the past, as well as in the future.

Certainly, as a matter of justice and right, there is no reason why a distinction should be drawn.

. Suppose that ten days prior to the passage of this act, one person’s property had been levied upon and an assessment made and paid, and in ten days after the passage of the act another person would have an assessment levied and pqid on his property, is there any moral or equitable reason why, if these several persons should have improvements made on their property thereafter, the first should be compelled to pay the entire assessment and the latter only one-half ?

Defendants seek to draw a distinction between this case and Gray v. Toledo, supra, that the court in that case gave the construction it did largely because the new statute was merely a continuance of the old one and made the same provisions that had been in force in the old statute for years, and that, therefore, it applied in its limitations, even though the assessment in question was made after the present aet went into effect. That was perhaps one reason. But we think that when the court uses the language hereinafter quoted, that it indicates that there were other considerations in the minds of the court, and which are applicable to the ease at bar. The language I refer to is as follows:

‘ ‘ The exaction from a lot owner of an assessment equal to one-third of the value of the property, for an improvement which he may not wish and can not afford, even though an equivalent special benefit results, is a heavy burden, and the General Assembly wisely has provided that it shall not be exceeded and that he shall have five years in which to lighten the load before additional burdens may be imposed. No reason is suggested why an exception should be made of these unfortunates who already were bearing the full burden when Section 53 was enacted, and if the statute is to be so interpreted then a similar misfortune must follow every repeal and amendment of the section.”

In the case at bar, there is nothing that we can see that in making it apply to the plaintiff’s case would make the law retroactive or retrospective and this is well answered in Gray v. Toledo, supra:

“The power to make an assessment for the improvement of this street is given by the same aet that limited the amount of the assessment, and the extent of the power is measured by the limitation; and so long as assessments made prior to the passage of that statute are not affected, but only considered in applying the limitation to assessments subsequently made, no vested right is taken away or impaired, nor a new obligation created, nor a new duty imposed, nor a new disability attached in respect to transactions or considerations already passed.”

The language of the statute applicable to the case at bar is positive in reference to what property should be included within its provisions and these provisions are, first, that there must have been a special assessment levied thereon; second, that the assessment has been paid; third, that it was for the improvement of a street, then, unless the grade.is changed, if there be thereafter another assessment, only one-half of the same can be assessed against the property.

The Constitution, Article XIII, Section 6, especially gives to the General Assembly power to pass laws restricting the power of assessment. The passage of the act under consideration was an exercise of this power and the Legislature was the sole judge as to its application, so long as it did not contravene any other constitutional provision.

The theory of assessments rests purely upon the fact that a benefit is conferred upon the property. Now it would seem that it is certainly within the power of the Legislature to determine that if property has once been assessed, and there be future assessments made, that the property shall not bear more than a certain proportion of such future assessments, and that the remainder must be borne in some other manner.

So we áre unable to see how either from the words of the statute itself, or theory of public policy, or constitutional provisions, it should not be applicable to the plaintiff’s case and bring her property within its limitation.

The second question that is raised is that the graveling of a roadway or surfacing it with crushed gravel is not within the statute. In other words, that what is meant to be included in the statute is that when a street has been once paved with brick or something of that character, and is thereafter repaved or repaired, that then it comes within the meaning of the statute. It is possible that this was,chiefly what the Legislature.had in mind, but the statute must be construed according to the meaning of the words used in the statute.

It may be true that a person might receive the. benefits of this limitation, who had not been taxed very heavy for some prior improvement, but as the statute draws no lines of distinction between whether the original improvement shall be a gravel, cobble, plank, brick, or stone roadway, or one of some other description, we must hold that it applies to all improvements of the character to which it might apply.

The fact that the statute limits the limitation to a ease where the grade is not changed would, to our mind, seem to indicate that it was to have a general application to all roadway improvements. It is a well-known fact that streets are frequently improved by cutting and grading and re-surfacing with gravel or some other substance out of which a reasonably good roadway could be made, and no street or roadway in a city is recognized as- an improved street until such is done. The transforming of an xmimproved street to what is known as an improved street is an improvement which the statutes have recognized to be a suitable one, for which the cost might be levied and assessed against the adjoining lot owners.

In a well considered case by Judge Kunkle of the Clark Common Pleas, Baldwin v. Springfield, 10 N.P.(N.S.), 65, it is held:

“ ‘Macadamizing’ a street, formerly improved by graveling pursuant to municipal direction, constitutes a ‘repaving’ within the meaning of Section 53, municipal code of 1902 (General Code, 3822), for which not more than one-half the cost may be assessed against the abutter.”

In discussing the question as to whether the words repaving and repairing could be applied to a case where the street in its improvement had only been graveled, or macadamized, and not paved with brick, etc., he cites and examines a number of authorities,, and as it is quite pertinent to the decision of the case at bar, we will quote at some length from the opinion:

“Does the macadamizing of the highway in question, constitute a repaving thereof, where the first improvement consisted merely of graveling the street? We have had considerable difficulty in arriving at a determination of this question.
“There are a number of decisions to the effect that macadamizing is considered paving. Leake v. Philadelphia, 171 Pa. St., 125; Williamsport v. Beck, 128 Pa. St., 147; Brady, In re, 85 N. Y., 268; Philadelphia v. Ehret, 153 Pa. St., 1; Harrisburg v. Segelbaum, 151 Pa. St., 172, 185; Adams v. Fisher, 75 Tex., 657, 661.
“Does a.n original improvement of a street by graveling constitute the paving of a street, so as to render a subsequent improvement a repaving?
‘ ‘ To pave includes the usual means of covering the street with stone or brick, so as to make a convenient surface for travel.. Warren v. Henly, 31 Iowa, 31.
“Many statutes provide for levying assessments for paving-a street. The question presented under such statutes is as to the' meaning of the term 'paving/ and the forms of improvement which may be included thereunder.
“Paving consists in producing, by any means, a hard, firm smooth surface for travel. Paving consists in producing a compact, even, hard surface, or covering the street with stone or brick, so as to make a convenient surface for travel. Page & Jones, Taxation, 437.
‘ ‘ No particular material is necessary to constitute a pavement. It may be made of anything which will produce a hard, firm, smooth surface for travel. Philadelphia v. Eddleman, 169 Pa. St., 452.
‘' To pave is to cover with stone or brick, or other suitable material, so as to make a level or convenient surface for horses, carriages, or foot-passengers. Phillips, In re, 60 N. Y., 16, 22.
“A pavement is not limited to uniformly arranged masses of blocks' of wood, brick or stone, but it may be as well formed of pebbles or gravel or other hard substance which will make a compact, even, hard way or floor. Burnham v. Chicago, 24 Ill., 496, 499, 500; Dillon, Municipal Corporations, Section 796, and authorities cited.
“Any material by which a hard, firm or smooth surface for travel is secured, constitutes a paving, and from the above definitions of paving and repaving, we think the macadamizing in question constituted.a repaving, and that the limitation of Section 3820, General Code (B. 1536-213), as to repaving applies to the improvement in question.
“While brick or stone are the materials employed in most cases of paving and were the materials used in certain of the cases above cited, yet it is apparent from the reasoning of the court, even in those cases, that the controlling element was the fact that a hard, firm, smooth surface for travel was thereby secured, and a hard, firm and smooth surface for travel may be secured from the use of gravel, as well as from other kinds of material.
“The purpose of the Legislature seems to be to permit the city to assess against abutting property owners the principal cost of originally improving a street, of originally transforming it from an ordinary roadway into a street, but after such original construction, the policy of the Legislature in our state, and the same rale seems to prevail in most states, is to limit the amount which may be assessed after a street has been originally improved at the expense of the abutting property.
“We have nothing to do with the wisdom of such legislation. ■We ire merely required to determine what the Legislature has enacted upon this subject. If we have correctly interpreted the intention of the Legislature and the limitation so prescribed is unwise, the remedy is with the Legislature.”

At the May term of this court the decision of Judge Kunkle was affirmed by this court. This case, we think, is decisive of the question of the case at bar, as to whether the statute in its limitation applied to a street that had been improved by paving with brick or some similar substance only, or whether it could also be applied to a street improvement where gravel was used to make the surface, and we think that the court in the Clark county case has clearly shown that the statute is not limited to a street that has been .paved with brick, etc., but that those that have been improved by making a graveled surface as set forth in plaintiff’s petition come within its provisions.

We are, therefore, of the opinion that the court below erred in sustaining the demurrer to plaintiff’s petition, and said cause is, therefore, reversed and remanded to the court of common pleas for further proceedings.


text:
    DISTRIBUTION OF THE PROCEEDS OF LAND OF A TESTATOR.
    Circuit Court of Stark County.
    Anna Knisely v. Perry H. Young, Executor of Hiram K. Dickey, et al.
    Decided, February Term, 1912.

      Wills — Law of Distribution 'Prevails Over Law of Descent, When — Title Cast Upon Executors Until Termination of Life Estate — Quit-Claim Deed Executed by Son Before Termination of Life Estate Invalid.

    1. Where a testator vests in his widow a life' estate in his lands, with the provision that within a reasonable time after the death of his widow certain land shall be sold by the executors, named in the will and the proceeds divided equally between his five children, or if any of his children should decease before distribution the share of such child or children- should go to his or their heirs, “so that the proceeds of said lot may vest in my children and their heirs forever,” the power given to the executors with respect to conferring title is a power coupled with an interest and vests the fee in the executors.
    2. In such a case the law of succession with respect to the proceeds from the sale of said land when finally made by the executors is not found in the statute of descent but of distribution, and the time of the distribution determines who are the legatees; and a quit-claim deed given by one of the sons to his divorced wife of all his right, title and interest in said land, executed during the lifetime of their mother, is void and without effect. ' •

      D. F. Reinoehl, for plaintiff in error.

      Lynch & Bay, contra.
    Shields, J.; Voorhees, J., and Powell, J., concur.
   This proceeding in error is prosecuted to reverse the judgment of the court of common pleas.

■ It. appears that Perry II. Young, as executor of Hiram K. Dickey, deceased, filed his petition in the Court of Common Pleas of Stark County, Ohio, setting forth, in substance, that on the - — • day of May, 1884, the said Hiram K. Dickey died, leaving his last will and testament, unrevoked and in full force; thaf on the — day of May, .1884, said will was duly probated and admitted to record in said Stark county; that the said Perry H. Young and T. J. Reed were named in the said will as executors thereof, and that on the — day of May, 1884, the said Perry H. Young, with said T. J. Reed, duly qualified as such; that said T. J. Reed died on the — day of March, 1909, leaving the said Perry H. Young the sole surviving executor of said will; that the said Hiram K. Dickey, deceased, died possessed of real and personal property', leaving as his widow, Elizabeth Dickey, and the following named persons, his children and his only heirs at law: Hiram W. Dickey, Kate Webb, Belle Reed, William C. Dickey and Lizzie N. .Young; that Elizabeth Dickey, widow, died July 10, 1909; that after the death of the said Hiram K. Dickey and before the death of the said Elizabeth Dickey, widow, the said William C. Dickey, one of the children and heirs a.t law of the said Hiram K. Dickey, ón June 11, 1884, by quit-claim deed conveyed and transferred all his right, title and interest in and to the real estate of the^ said Hiram K. Dickey ,to Anna L. Knisely, the plaintiff in error herein, -who claims to own whatever share the said William C. Dickey would be entitled to receive were he liv-ing at the time of the distribution of said estate as provided by the terms of said will; that immediately upon the execution and delivery of said deed to the said Anna L. Knisely, on the — day of -, 1884, the said William C. Dickey disappeared, and is believed to be dead, and was and is believed to have died before the death of the said Elizabeth Dickey, widow as;aforesaid; that the said William C. Dickey left surviving him Grace Walters, his daughter, and only heir at law; that Hiram W.- Dickey, one- of the children and heirs at law of the said Hiram K, Dickey, died January 25, 1907,'devising his. estate .and property to .his widow,. Clara, L. Dickey; that by- reason of. the.attempted conveyance, qf.his said interest in .said estate by. the .said William C. Dickey, and Ms probable death before the time of vesting and distribution provided for in said will, and the death, of the said Hiram W. Dickey, leaving a will disposing of his interest in said estate to others than those mentioned in the will of the said Hiram K. Dickey, deceased, it is impossible for said executor to determine to whom the said estate of the said Hiram K. Dickey should legally be distributed; that as such executor he has in his hands the proceeds of sale of the real estate of the said Hiram K. Dickey, ready for distribution, but that he can not safely make such distribution without a construction of said will, and he therefore prays the direction and judgment of the court. '

It appears that all of the defendants in said proceeding entered their appearance by waiver; that answers were filed by Clara L. Dickey, widow of Hiram W. Dickey, deceased, and William M. Dickey, as guardian of Thomas W. Dickey, and G-race Walters, the daughter and only child and heir at law of .William C. Dickey, deceased, filed an answer and cross-petition in which she sets up that she has no personal knowledge as to whether William C. Dickey conveyed or undertook to convey and transfer to Anna L. Knisely, on or about June 11, 1884, any interest in said Hiram K. Dickey’s estate, as averred in the plaintiff’s petition, and she therefore denies that any such conveyance ever was in fact made, and denies that the said Anna L. Knisely now has any interest in or claim to the real estate described in said petition. She further sets up that the said William C. Dickey died long before the death of his mother, Elizabeth Dickey; that it was not necessary to sell or dispose of the real estate referred to in said petition to pay said testator’s debts and legacies, and that said real estate was not sold during the lifetime of the widow, Elizabeth Dickey, but was sold since the death of the said Elizabeth Dickey, widow. She further sets up that upon the death of said testator’s widow the said Grace Walters became seized under the provisions of testator’s will, as the only child of the said William C. Dickey, of an undivided one-fifth interest in the real estate of said testator, and in the proceeds of the sale thereof, and she prays that she be adjudged and decreed to be the owner of and to be entitled to receive one-fifth of the' proceeds of the estate of the said Hiram Dickey arising out of the sale of the real estate described in said testator’s will, and referred to in said petition.

Said cause was submitted to the court below upon the pleadings and evidence, and it was adjudged and decreed by the court that:

“The plaintiff as executor of said last will and testament be, and he hereby is instructed and directed to proceed to distribute the proceeds of the sale of said real estate described in Item 6 of said will, subject to distribution, after the costs of this proceeding and costs .and expenses of administration had been paid, and the net rents, issues and profits of said real estate, accruing since the death of the widow, Elizabeth Dickey, as follows: to the defendants Grace Walters, Belle Reed and Lizzie N. Young each a one-fifth part thereof; to Frank Webb and Arline Pratt, as executors and legal representatives of Kate Webb, the one-fifth part thereof; and to the defendants William M. Dickey, Clara M. Whittier, Belle V. Rahles and Thomas W. Dickey the one-fi’fth thereof subject to distribution.”

Anna L. Knisely, the plaintiff in error herein, filed her motion in said proceeding to vacate said judgment and decree rendered against her for irregularity in taking-the same against her, when she was not in' default upon the cross-petition of Grace Walters iipon which the decree against her was taken, which said motion was by said court overruled, to which action of the court in overruling said motion the said Anna L. Knisely excepted.

Error is prosecuted .in this court for a reversal of the judgment and decree of the court below, and the petition in error contains the following assignments of alleged error for such reversal:

(1) Said court erred in its judgment and decree in the construction of the.-last will and testament of the said Hiram K. Dickey.,

,. (2) Said judgment and decree is contrary, to the law and the facts of the case.

.(3) Said court erred in overruling the motion of the plaintiff in error to set aside and vacate said decree for irregularities mentioned in said motion.

It appears that the provisions in Item 6 in said will prompted the executor to seek the aid'of the court, for instruction and' direction as to his duty in making a distribution of the proceeds of sale of the real estate of the said testator. Said Item 6 reads as follows:

“It is my will that within a reasonable time after the death of my wife my executors proceed to sell said lot above described at -public or private sale as they deem best, and divide the proceeds equally between my five children — Hiram W. Dickey, Mrs. Kate Webb, Mrs. Belle Reed, W. C. Dickey and Mrs. Lizzie N. Young, and should any of said children be deceased at the time of my death or the distribution of said proceeds of sale, then the share of any such to go to the heirs of such deceased child or children, so the proceeds of said lot may vest in my children and their heirs forever. ’ ’

(1) A reading of the will shows that after directing his executors to erect a family monument on his lot in the Massillon cemetery, and after making certain specific bequests of personal property to one of his grandchildren and to his wife, the testator gives to his wife a life estate in his real estate which is followed by the provision in said Item 6.

Without stopping to discuss the primary principle that a will should be considered in all its parts with the view of ascertaining the intention of the testator, let us proceed at once to an analysis of the clause of the will in dispute, for it is conceded that the main controversy here depends upon the construction of Item 6 in said will.

The first inquiry arises as to where the title to the property in question is east by the terms of the will. It is well settled by the courts of this state that title to real estate must rest somewhere. It can not rest in nubibus.

In some jurisdictions it is held that the title may be in abeyance, but it is otherwise held in this state. Gilpin v. Williams, 25 O. S., 283-295.

It is clear that the title to said real estate, upon the death of said testator, did not pass to the widow of the testator, because her only title was to an estate for her natural life. Did it pass to and invest in the children and heirs at law of the testator, or did it pass to and invest in the executors named in the testator’s will?

The fee simple title was in the testator until his death, and it would- either pass, under the laws of descent, to his children and heirs at law, or per force of the legal effect of the provisions of Item 6, to the executors.

The ordinary rules of construction leave no room for doubt that the directions to the executors in Item 6 in the will to sell said real estate is imperative, and that the duty of making said sale either at public or private sale is expressly enjoined upon the executors is likewise clear, with an unlimited discretion to dispose of it as they may think best. It is true that'the executors are not designated by name in’ this connection, but we regard this as immaterial. A somewhat similar case in this respect was passed upon by our Supreme Court in the case of Collier v. Grimsey, 36 O. S., 17, where the executors were not expressly named as the persons who should make sale of the real éstate under a will, and where- the court held:

“The duty of making the sale and dividing the proceeds is imposed on the executors, ’ ’ and ‘ ‘ as one of the executors refused to net, the duty of excuting the trust devolved under the statute upon the other executor.”

Here, as there, the direction to sell is not optional, but mandatory. Under the direction contained in said Item 6 in the will the executors are not only required to make sale of said real estate, but they are also required to divide the proceeds of sale equally between the said testator’s children or heirs, after such sale. Here, then, the executors are not only authorized and required to sell said real estate’ but after converting it into money they are directed to distribute such moneys between the testator’s children or heirs then living. What is the legal effect of such power thus given in respect to conferring title? Is it not a power coupled with an interest, and vests the. fee in the executors? Where, in a will, a testator confers power upon his executors to sell his real and personal property at public or private sale, and distributes the proceeds of sale among beneficiaries designated in the will, it is-a power coupled with an interest, and will be so construed, if the other parts of the will seem to require it, in order to carry out the intention of the testator, and in such case, by force of the will, the title to the real estate is vested in fee simple in the executors, and does not descend to the heirs. Williams v. Veach, .17 Ohio, 171.

Applying the principle of law laid down in this case to the facts before us, the conclusion is clear, in ■ our judgment, that the title to the real estate in question vests in the executors named in the will of the testator.

(2) Looking at the phraseology employed in said Item 6 in the will, it appears that the testator intended to devolve the making of the sale and distribution of the proceeds of sale of his real estate upon the executors named in 'his will. At the time of the execution of the will there was apparently in the mind of the testator a fixed purpose to keep the estate intact, after the termination of the life estate therein provided for his widow, by a continuing supervision and control over it by the executors until it was converted into personalty and distributed among his children. First, he directs a sale of his real estate by the executors, then that they divide the proceeds of said sale equally between the testator’s children.

In our judgment, no rule of construction need be invoked to elucidate the meaning of the language here employed. The execution of this trust, by the express terms of the will, is confided exclusively to the executors, and rests wholly with them, independent of his children and heirs.

(3) But the executors, in Item 6 in the will, are not only directed to sell the real estate and divide the proceeds of said sale between his children, but said item contains the following limitation,; ,

“And should any of said children be deceased at the time of my death or the distribution of said proceeds of sale, then the share of any such to go to the heirs of such deceased child or children so the profits of said lot may rest in my children and their heirs forever.”

As before stated, the testator at the time of the execution of his will seems to have framed up in his mind a scheme or purpose which, when carried out by his executors, would secure to his children an equal distributive share in his estate. Whatever may have been in his mind as the underlying cause in limiting the distribution of his estate to the heirs of any one of his children who might be deceased at the time of his death, or at the time of the distribution of his estate, is not known, the natural inference being, however, that he desired none but those of his own blood to share his estate.

Obviously there could be no distribution until after the sale of the real estate, and after such sale the fund in the hands of the executors became personal property, and therefore whatever the beneficiaries take under the will they take as a bequest of personalty and not as a devise of land. The thing to be distributed was money, not land. It makes no difference that the fund to be distributed is the proceeds of that which was land at the date of the will, or at the testator’s death. The bequest is nevertheless the legacy, and when vested in interest in the legatee, whatever may be the time for its payment, the law of succession in respect to it is to be found in the statute, not of descent, but of distribution. Richey v. Johnson, 30 O. S., 288.

Now, under the clause of the will referred to, who are, or were, the legatees under the will at the time distribution was made by the executors ? For, in our judgment, the time of distribution, under the terms of the will, determines who were such legatees. '

Was Grace Walters one of such legatees? It appears that she is a daughter and only child and heir at law of William C. Dickey, one of the children of Hiram K. Dickey, deceased, and that the said William C. Dickey died prior to the death of Elizabeth Dickey, widow of the said Hiram K. Dickey. It further appears that the said William C. Dickey on or about the 11th day of June, 1884, after the death of the said Hiram K. Dickey, and before the death of his widow, by quit-claim deed conveyed and transferred all his right, title and interest in the real estate of the said Hiram K. Dickey to the plaintiff in error herein. Having found that the title to said real estate, under the terms of said will, vested in the executors therein named, said conveyance was and is, therefore, invalid and void.

The direction to the executors is, “should any of said children be deceased at the time of my death or the distribution of said proceeds of sale then the share of any such to go to the heirs of any such deceased child or children.” In view of the conclusion already reached that the bequest herein did not vest until the time for distribution, and Grace Walters being the only child and heir at law of the said William O. Dickey, then deceased, it follows that she takes and inherits the share of said estate that the said William C. Dickey would have taken and inherited had he been living at the time of the distribution of said estate by the executors.

In addition to the authorities referred to herein, the following are also cited as sustaining the conclusions reached: Barr v. Denny, 79 O. S., 359; Hamilton v. Rodgers, 38 O. S., 242; Linton v. Boyd, 19 O. S., 30.

Counsel for plaintiff in error contends that under the terms of the will of Hiram 3L Dickey a fee simple title vests in the children upon the death of the testator, while the right of possession is postponed until the termination of the intermediate estate, which here is the life estate of the widow, and he relies principally on the case of Linton v. Laycock, 33 O. S., 128, to sustain his contention. In the case of Barr v. Denny, already referred to, which is a case wherein the facts are very similar to those in the case at bar, the judge announcing the opinion of the court in that case refers at length to the case of Linton v. Laycock, and holds that the rule laid down in the latter case does not apply to the-case of Barr v. Denny. It might also be noted that the case of Linton v. Laycock was one involving a devise of real estate, in respect to which a rule of law which favors the vesting of estates applies. It does not apply with the same force to personal estates.

It is also urged upon the attention of the court that the court below erred in overruling the motion of the plaintiff in error to set aside and vacate the decree entered as against her in this proceeding because she was not in default upon the cross-petition of Grace Walters.

It appears that all the parties interested in this proceeding were made parties and were before the court below for the purpose of having their several interests determined. In the petition filed by the executor, Grace Walters is made a party, and her relation to the estate of Hiram K. Dickey, deceased, is fully set forth therein. In her answer .and cross-petition she substantially sets up the same state of facts. The .view we take of this motion renders any' further discussion of it unnecessary, in the light of the construction already given to the'will, for whatever might have been the action of Anna L. Knisely under a sumi mons issued upon said cross-petition, the construction of the will by the court below shows that she was not prejudiced in her legal rights by failure to be served with such summons, said court in effect holding that the said William C. .Dickey at the time of the execution of the quit-claim deed to Anua L. Knisely had no vested interest in the. estate of the said Hiram K. Dickey.

The same decree may therefore be entered herein as in the court below, with a judgment for costs against the plaintiff in error. Exceptions noted.


author: Per Curiam

text:
    FAILURE TO ESTABLISH A BOARD OF HEALTH.
    Circuit Court of Licking County.
    The State of Ohio, ex rel John M. Ankele, v. Elmer Orr et al.
    Decided, March Term, 1911.

      Municipal Corporations — Mandamus to Compel Establishment of a Board of Health — Pleading—Section 44-04, P. <& A. Anno. General Code.

    Grounds for the granting of a writ of mandamus to compel a municipal council to establish a board of health are not stated in the petition filed in this case and demurrer lies thereto.
   Per Curiam

(Voorhees, Shields and Powell, JJ.)

In this case the relator recites that he is an elector, citizen and tax-payer, and the mayor of the city of Newark; also, the owner of real estate in said city; that the defendants constituté the city council of said city of Newark; that the said city is a municipality in the state of Ohio, of more than five thousand inhabitants, and of the grade of a city.

The plaintiff recites there is no board of health existing in or for said city; that it is the duty of said defendants, enjoined upon them by Section 4404 of the General Code of the state of Ohio, to. establish a board of health, but that they neglect, decline and refuse ’to establish the same; that by the ordinary course of law, there is no adequate remedy against the defendants for so neglecting and refusing to establish such board.

After making the allegation that he had requested the city solicitor to bring this action, which he refused to do, the plaintiff says that relator brings the action on behalf of the said city of Newark. He prays for an order requiring the defendants to establish such board; that an alternative writ of mandamus may be issued, requiring them to show cause, by a day to be named, why they do not establish such board, and that, on final hearing, a peremptory writ may be issued requiring such establishment to be made.

Upon this petition, an alternative writ was allowed.

The defendants, instead of making answer, and showing cause why such action had not been taken, filed a demurrer to this petition. The demurrer was overruled by the court of common pleas,, and judgment was rendered in favor of the plaintiff to recover costs from the said defendants. Whereupon, the defendants took an appeal to the circuit court.

As the case now stands in this court, the matter that is before us for determination is whether or not this demurrer to the petition is well taken.

We are of the opinion that it is well taken; that the petition does not' state a good cause £>f action, and' that the demurrer to the same shouid be sustained. Exceptions may be noted.


text:
    PERSONAL PROPERTY EXONERATED BY SPECIFIC DIRECTION IN WILL.
    Circuit Court of Portage County.
    Sarah Jane Lacey v. George N. Birdsall.
    Decided, March Term, 1912.

      Wills — Intention of Testator When Ascertained Must Govern — Even Though Contrary to a Technical Rule of Law.

    A testator devised a farm to her son “upon consideration that he pay to my daughter, S. J. L., the one thousand dollars which I have bequeathed to her in item three, and which sum until paid I hereby make a charge upon said farm.” The son accepted the legacy.

      Held: The payment of the legacy to the daughter is a charge upon the legacy to the son, and the personalty of the testator’s estate is exonerated from its payment, at least to the extent of the son’s legacy.

      Metcalfe, J.; Norris, J., and Pollock, J., concur.
   The only question in this case is whether by the terms of the will of Abigal Birdsall the personalty belonging to her estate is ■exonerated from the payment of a legacy of one thousand dollars given to the plaintiff, Sarah Jane Lacey. Item three of said will is as follows:

‘ ‘ I give, devise and bequeath to my daughter, Sarah Jane Lacey one thousand dollars, and I direct that the same shall be paid to her within eighteen months after my decease.”

There is no specific direction here as to what fund shall be used in paying this legacy. Without anything further to throw light on the intention of the testator the personalty would be primarily liable for its payment. But the will must be construed in the light of all its provisions. Item four is as follows:

‘ ‘ I give, devise, and bequeath to my son, George H. Birdsall, my farm located in Streetsboro township, Portage county, Ohio, upon consideration that he pay to my daughter Sarah Jane Lacey within eighteen months from my decease the one thousand dollars which I have bequeathed to her in- item three and which sum until paid I hereby make a charge upon said farm.”

This provision of the will makes it clear that the intention of the testator was that George should pay the legacy to Mrs. Lacey. He is to receive the farm “upon consideration that he pay” the one thousand dollar legacy. This is clearly a personal requirement of George, and makes him personally responsible for its payment, if he aecepts’the bequest of the farm, and in order to make the payment secure it is made a charge upon thé farm.

Item two also throws some light on the question: “I give, devise, and bequeath to Isadore Birdsall three hundred dollars, and direct that the same be paid out of my estate within eighteen months’ after my decease. ’ ’ The specific direction in this item requiring the payment of the legacy to Isadore out of her estate is' entirely consistent with the direction that the legacy to-Sarah Jane be paid by George.

We, therefore, hold that the intention of the testator being clear to make the payment of the legacy to Sarah Jane a personal requirement of George that that intention must prevail.

Counsel for the defense have cited many English and some American cases which seem to hold to the doctrine that a specific direction in a will to one of the legatees to pay a legacy to another does not exonerate the personal property. But we think this is contrary to the established doctrine in Ohio that the intention of the testator must be gathered from the will itself,- and when ascertained must govern, even though it is contrary to a technical rule of law. To hold otherwise would, in our judgment, be a departure from well grounded doctrines which prevail in this state.

Judgment affirmed.


text:
    APPROPRIATION OF AN EASEMENT ACROSS A PUBLIC LANDING.
    Circuit Court of Hamilton County.
    The Louisville & Nashville Railroad Company v. City of Cincinnati et al.

    Decided, May 25, 1912.

      Public Grounds — Appropriation of Easement Across, for an Elevated Railway Structure — Public Exigency — Determination as to Necessity — Terms, and Conditions — Failure to Agree.

      1: Where it has been judicially 'determined that, a municipality is without power to convey an easement to a railway company without condemnation or the Legislature to authorize such a conveyance, inability between the municipality and the corporation to agree must be held to exist as a matter of law.-

      2. The question of thé necessity for such an appropriation is one solely for the hoard of directors of the company seeking to make the appropriation, and no other judgment than that of the directors exists or can he substituted.

      Kinkead & Rogers and •/. B. Foraker, for plaintiff in error.
    , Albert Bettinger, Walter Schmitt, Alfred Bettman and Hosea & Knight, contra.
    Smith, P. J.j Swing, J., and Jones, J., concur.

       Reversing L. & N. Railway Co. v. Cincinnati,. 10 N.P.(N.S.), 649, and 12 N.P.(N.S.), 65.

   It would seem that the right of the plaintiff in error to appropriate an easement over the property described in its application for railroad purposes is determined by the case of City of Cincinnati v. L. & N. R. R. Co., reported in the monthly volume of the advance sheets of opinions of the United States Supreme Court under date of April 1, 1912, at page 267.

Speaking of Section 3283a of the Ohio Code, the court says:

“A public ‘exigency’ exists for the ‘common preservation,’ when the Legislature declares that for a bona fide public purpose there should be a right-of-way for a common carrier across a particular piece of property. The uses to which Section 3283a authorizes a condemnation of. a right-of-way are undeniably public, and not private, uses. When that is the case, .‘the propriety or expediency of the appropriation can not be called in question by any other authority.’ U. S. v. Jones, 109 U. S., 519.”

Upon the record of the case as presented to this court, the question for determination seems to us to be, has the plaintiff complied with the provisions of the law relating to the condemnation of private land, and does the evidence so disclose?

If it has, then plaintiff in error is entitled to proceed with this appropriation proceeding. If it has not, then such proceeding can not be maintained. An examination of the record, we think, shows that plaintiff in error has complied with all the conditions establishing its right to maintain this suit for the condemnation of an easement across the public landing or wharf of the city.

Under the ruling in Louisville & Nashville Railroad Company v. City of Cincinnati, 76 O. S., 481, the inability to agree with the city upon the compensation to be paid the owner by the company seeking the easement, without condemnation, has already been determined, as in that case the Supreme Court held that the municipality was without power to convey any such easement, and the Legislature was without authority to authorize such conveyance, therefore the inability to agree exists as a matter of law. The ordinance does not embrace more than one subject but relates in its entirety to acquiring an easement across the public landing or wharf.

.So far as the terms and conditions upon which the company might occupy the easement sought to be appropriate is concerned, these are sufficiently provided for and set out in the ordinance and the plans, and specifications for the building of the viaduct.

The necessity for the appropriation was established by the action of the board of directors of plaintiff in error company by the resolution of such board passed September 17, 1908.

This is in conformity with the language of the statute which leaves the question Of necessity solely to “the judgment of the board of directors. ’ ’ It would seem that no other ‘ ‘ judgment, ’ ’ or power to determine the necessity for the appropriation can exist or be substituted.

As plaintiff in error has fully established its right to proceed, it is the conclusion of the court that the judgment below be reversed and the cause remanded for further proceedings according to law. •


author: Metcalfe, J.

text:
    VIOLATION OE LOCAL OPTION LAW ON THE OHIO RIVER.
    Circuit Court of Columbiana County.
    State of Ohio v. William Savors.

    Decided, October Term, 1911.

      Criminal Lane — Jurisdiction Over Offenses Committed on the Ohio River — Sale of intoxicating Liquors Opposite a Dry Municipality Beyond Low Water Marie.

    1. The state of Ohio has criminal jurisdiction of offenses committed beyond low water mark on the Ohio river, opposite the boundary of the state of Ohio.
    2. It is a violation of Section 4364-20& of the Revised Statutes of'the state of Ohio to sell intoxicating liquors, as a beverage, on a boat anchored in the Ohio river opposite the shore of a municipality of this state, with a passageway for persons to and from the bank of said river in, said municipality to said boat, after a majority of the voters of the municipality had voted to prohibit the sale of intoxicating liquors therein.

      L. P. Metzger, for plaintiff in error.

      H. E. Grossham, contra.
    Pollock, J.; Nórris, J., concurs; Metcalfe, J., dissents in a separate opinion.

       Reversing Savors v. State, 8 N.P.(N.S.), 228.

   East Liverpool is a municipal corporation in this county, and its southeastern boundary extends some distance along the Ohio river.

Under favor of Section 4364-20a, at seq., of the Revised Statutes' the electors of this municipal corporation voted in favor of prohibiting the sale of intoxicating liquors as a beverage. While the sale of intoxicating liquors was prohibited in East Liverpool under this act, William Savors, the plaintiff in error, anchored a boat in the Ohio river opposite the boundary of this municipality, and beyond low water mark. He then constructed a passage-way for persons to pass to the boat from the bank of the river, within the corporate limits of East Liverpool, and was engaged in selling intoxicating liquors as a beverage on this boat.

An affidavit was filed before the mayor of East Liverpool charging plaintiff in error with a violation of the municipal local option laws of this state, by selling intoxicating liquors within this municipal corporation. He was arrested, tried and convicted. From the judgment of the mayor error' was prosecuted to the court of common pleas, resulting in a reversal of the judgment of the mayor, for the reason that the sales were not made within the municipal corporation. The state of Ohio prosecutes error to this court, seeking to reverse the judgment of the common pleas court and to affirm that of the mayor.

Two questions are urged in this court: First, were these sales .made within the jurisdiction of the state of Ohio? Second, are sales of intoxicating liquors, on the Ohio river opposite the shore of a municipal corporation of this state, a violation of the municipal local option law?

In 1787 Virginia granted to the United States the Northwestern Territory, she conveyed the territory “situate, lying and being to the northwest side of the river Ohio.”

Afterwards, in 1802, the state of Ohio was formed from a part of this territory.

No question now exists but what Virginia, by this grant, conveyed to low water mark on the Ohio side of the river (Handley’s Lessee v. Anthony, 5 Wheaton, 374), limiting the territorial boundary of the state of Ohio, where it borders on the Ohio river, to low water mark on the northwest side of the river.

Afterwards by the act known as the “Virginia Compact” of 1789, which proposed the creation of the state of Kentucky, it was provided that:

‘ ‘ The use and navigation of the Ohio river, so far as the territory of the proposed state, or the territory which shall remain, within the limits of this commonwealth lies thereon, shall be free and commbn to the citizens of the United States, and the respective jurisdictions of this commonwealth and of the proposed states on the river as aforesaid, shall be concurrent only with the states which may possess the opposite shores of the said' river.” 13 Hening, St. L., 17. '

“This compact, by the sanction of Congress, has become a law of the Union. What further legislation can be desired for judicial action?” Penna. v. Wheeling & B. Bridge Co., 13 Howard, 518-566.

Whether or not by this compact the state of Ohio was given authority to enforce her laws on the Ohio river beyond low water mark, has never been determined by the Supreme Court of this state. In the ease of State v. Stevens et al, 2 Western L. J., 66, the common pleas court of this county held “that the state of Ohio had criminal jurisdiction on the Ohio river below low water mark.”

This case went to the Supreme Court and was reversed on other grounds, but the jurisdiction on the Ohio river was not considered. Stevens et al v. State of Ohio, 14 Ohio, 386.

This compact, and similar provisions, have'been a fruitful source of litigation in other jurisdictions. The Supreme Court of Indiana, after referring to this compact, say:

“.A state has jurisdiction to try and punish offenses against its Sunday laws committed by persons engaged in carrying passengers over navigable waters of the United States, lying along its borders, between different points within its 'territory.’’ Dugan v. State, 9 L. R. A., 321.

In the case of Wedding v. Nieyler, 192 U. S., 573 (48 Law Ed., 570), the Supreme Court of the United States say:

“Jurisdiction is acquired by an Indiana court by service of process on the Ohio river, on the Kentucky side of the low water mark on the Indiana shore, in view of the conditions contained in the Virginia compact of 1798.”

Mr. Justice Holmes in the opinion in this case, says:

“Concurrent jurisdiction, properly so-called, on rivers, is familiar to our legislation, and means the jurisdiction of two powers over one and the same place.”

The jurisdiction of a state is the sovereign authority to make and the power to execute laws. Arnold v. Shields, 5 Dana, 18-22 (52 Am. Dec., 669-673); Sanders v. St. Louis & N. O. Anchor Line, 97 Missouri, 26 (10 S. W., 593).

.Persons, while on the'-waters of the Ohio river flowing along the -boundaries -of this state-, are amenable to our laws, and the courts of this state have jurisdiction to punish for crimes conn mitted on the waters of the Ohio river.

.The remaining question, then, is the construction of the municipal local option act. When the boundary line of a municipal corporation is. on the Ohio river; does this law include sales on-- the- river opposite a municipality in which the sale of intoxicating liquors is prohibited 1

.Section.4364-206 of the Revised Statutes provides:

“If a majority of the votes cast at such election shall be in favor'-of", prohibiting the salé of intoxicating liquors as a beverage, then from and after thirty'days from the date of holding said election it shall be unlawful for any person, personally or by .agent, "within the limits-’of such municipal corporation, • to sell' * * * intoxicating .liquors.

This is one of ;the statute laws of the state of Ohio, differing from- the other laws of the state only in 'requiring the approval vote ...of-the electors of the municipal corporation, to infuse life into -it. ■ A vote in a municipality in favor of prohibiting the sale of intoxicating liquors therein, puts in force a law of the state of Ohio making it a crime against the state to do any of the things prohibited by that act within the corporate limits.

If the law had' applied to all municipal corporations within the state,, without requiring a vote of the electors, it- would hardly be claimed 'it did not include sales on ¿'the Ohio river opposite.municipalities, just the same as other laws of the state. But the violation of this law'within "the municipality of East Liverpool was ,a crime against -the state of Ohio, just the same as the violation of any of her criminal statutes.

It is'Ihsisted that the, sale made-by plaintiff, in error was not made within the corporate'Jiijiits oi; .East Liverpool, but on the waters of the Ohio river.

-An' act that Is a crime within the territorial limits of the state bordering oh the • Ohio- rivélv is a-crime-if committed oh the’ river; and the state has power to enforce her laws on the Ohio river just the same as if the criminal act had been committed on the shore opposite that point.

No person can be convicted of a crime except in the eounty where the offense was committed, yet a crime committed on the Ohio river is punishable in the county bordering upon the river opposite the place where the act was committed. The jurisdictional limits of the county extend over the river to enforce the laws on the river, just the same as on the land. . If this is true where the law is in force along the entire boundary of the county, does it not apply where the law is only in force along a part of that boundary? Conviction can be had for a violation of this municipal local option law in any court having jurisdiction of such offenses within the county where the municipality is situated.

It is claimed that the sale of intoxicating liquors made under this statute is only prohibited “within the limits of such municipal corporation.” This provision places no greater limitation upon the jurisdiction of the state to enforce its laws than the statute requiring all criminal cases to be tried in the county where the offense was committed.

Both the county and municipal corporations are political divisions of the state; and if the jurisdiction of one. when it is bounded by the river, extends across the river to punish offenses against the law, no good reason can be given for limiting the other to the territorial boundaries of the state.

The object of the Virginia compact was, no doubt, the protection of the citizens living along the river from crimes committed on this public highway against the laws of their state. The circumstances in this case prove the wisdom of that compact. Here the accused had permanently anchored his boat in the river opposite this municipality, and on the banks of the river, within its territorial limits, constructed a means of access to his boat, and then proceeded to violate the criminal laws of this state then in force on the shore of the river opposite..

Because this law was limited to only a part of the boundary of the state on the Ohio river, would not tend to deprive it of any of the soverign power of the state. To limit the application of this law to the territorial limits of the statp, under the circumstances of this case, would make the Ohio river a sanctuary for the violation of this law.

For these reasons the judgment of the common pleas court will be reversed, and that of the mayor affirmed.

Metcalfe, J.

(dissenting).

Finding myself unable to agree with my brethren in the judgment rendered in this case, I have thought best to state briefly my reasons for such disagreement.

I do not question but that the jurisdiction of the state of Ohio extends over the Ohio river for the service of summons in civil cases, and for the punishment of offenses which may be committed upon that river. In fact, I think the decisions upon those questions settle them beyond controversy. Neither do I question that the jurisdiction of every county in the state bordering on the Ohio river extends to crimes and offenses committed on the river, so that if a crime is committed upon the Ohio. river within the lines of a county extended across the river, the jurisdiction of that county extends to that crime. But does it follow that because the state has jurisdiction for certain purposes over the Ohio river that a municipality bordering upon the river, the boundary line of which is low water mark, has jurisdiction over the river opposite the limits of such municipality, and confessedly outside of such limits? I am compelled to think that it does not. It is said very truly that a county is a political subdivision of the state. It is the unit through which the state acts in putting its legal machinery in operation.

An act is not punishable as a crime within the county of Columbiana because the people of that county have declared it shall be so, but because a general law of the state has so declared. It is punishable as a crime because it is against the laws of the ■state of Ohio and the county wherein the act is committed has jurisdiction of' the offense. That, however, is not true of an act punishable by a municipal ordinance. Of course, the people within a municipality have to obey the laws of the state just the same as the people outside thereof; but a municipality is not a political subdivision of the state. It has nothing whatever to do with the execution of the state laws except in some instances where the authority to execute those laws is specially delegated. A municipal corporation is purely a creature of the law. It can not exercise a single power unless that power is expressly delegated to it by the Legislature of the state, and such powers incident to those expressly delegated as may be necessary to carry them into execution. Being a creature of the law, a corporation exercising only delegated powers, and not a political subdivision of the state, can it be said that when the Legislature delegates to a municipality the power to pass an ordinance making a certain act an offense within the limits of that corporation, that the authority of the corporation by virtue of that ordinance extends and operates beyond the limits of that corporation for any purpose whatever unless the power delegated permits an extra-territorial operation? It is conceded that in no case do the ordinances and laws of a municipality have an extraterritorial effect unless.one of the boundaries of the municipality is the Ohio river. The city of Lisbon is not bounded by a navigable river. It could not be contended for a moment that for any purpose an ordinance passed by the council of this city would operate beyond the limits of the city. Why should such authority operate beyond the limits of. the municipality simply because one of its boundaries happens to be a navigable river? Have its powers been enlarged in any way by the fact that one of its boundary lines is low water mark of the Ohio river ? The power ceases to operate outside the municipal limits on dry land but continues to' operate on the water. So far as the laws of the state are concerned, there is no distinction between dry land and water. They operate equally upon both, and the jurisdiction of the state or county to punish an act committed on the river extends to that offense because the jurisdiction of the state extends to every part alike, whether it is land or water.

But it is said that the offense with which the defendant is charged in this case is made punishable by a law of the state and not by a municipal ordinance. A law is passed by the Legislature which delegates to the people of the municipality a right to vote upon the question whether intoxicating liquors shall or shall not be sold within its boundaries. Therefore, it is said there is a distinction between this particular law and a municipal ordinance. But it appears to me to be a distinction without a difference. It is only by virtue of a general law that the authorities of a municipal corporation can act at all. It is by force of a general law delegating power to a municipality that an ordinance can be passed by the council, or other law-making power of the municipality. Laws have been passéd authorizing the council of municipalities to prohibit the sale of intoxicating liquors, other laws have been passed authorizing the prohibition of the liquor traffic within the municipality by a vote of the people. In both cases the power to prohibit such, sales is purely a delegated power. When the people of a municipality have voted upon that question against the sale of intoxicating liquors then “within the limits of such municipality” the sale or keeping a place for the sale of intoxicating liquors is prohibited. Therefore the sale having^ been prohibited within the limits is not by that vote-prohibited without the limits, and no power exists in the municipality to punish an act not' committed within its boundaries.


text:
    DISTRIBUTION UNDER THE WILL OF JAMES S. ARMSTRONG.
    Circuit Court of Hamilton County.
    James F. Barbour et al, Trustees, v. John C. Gallagher et al.
    Decided, May, 1912.

      Wills — Determination as to Time for Distribution and as to the Persons Becoming Eligible to Participate Therein — Words and Phrases.

    The designation “all iny sisters, nieces, nephews and my brother Frank,” as used in item 8 of the will under consideration, refers to the persons previously mentioned in said will as beneficiaries, and these beneficiaries having now all deceased the time for distribution has arrived, and the trustees under the will should now proceed to divide the property among the “then surviving children of my aforesaid nephews, nieces and of my brother Frank.”

      Lmvrence Maxwell, Joseph W. O’Hara, J. B. Foraker, Wm. Worthington, Harmon, Colston, Goldsmith & Hoadly, Hoyt, D. <& W., Oscwr Stoehr and Guy W. Mallon, for the various heirs.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   In the above case the court is asked to construe the last will and testament of James S. Armstrong, executed on the 22d day of March, 1878, probated on the 10th day of June, 1883, and recorded in Vol. 20, page 25, Hamilton county, Ohio, records, and particularly item 8 thereof.

Item 8 is as follows:

“When all my sisters, nieces, nephews and my brother Frank W. Armstrong who are hereinbefore made beneficiaries of the income and revenue arising from the real and personal property hereinbefore devised in trust shall have deceased, it is then my will that the successors of my hereinafter named executors and trustees or said executors and trustees themselves if then, living, shall proceed without delay to divide such real and personal property, or the proceeds thereof should it be found necessary to sell for cash a part or the whole of such property to carry out equitably the objects and purposes of this my last will and téstament, and to divide such property or the proceeds thereof into as many equal parts as there will be then surviving children of my aforesaid nephews, nieces and of my brother Frank W. Armstrong, and to make over, transfer and give to each one of said surviving children one of said equal parts, to have to hold the same absolutely forever. ’ ’

Under this item, who then are “all my sisters, nieces, nephews and my brother Frank W. Armstrong, who are hereinbefore made beneficiaries of the income and revenue arising from the real and personal property hereinbefore devised in trust,” and at whose death such real and personal property shall be divided •

Clearly, “all my sisters, nieces, nephews and brother Frank W. Armstrong” mentioned in item 7 of said will, to-wit:' “My sister, Eliza Lee; my sister, Emily Dobyns; my sister, Amelia A. Mannen; my niece, Mary Eliza Gallagher; my niece, Sarah Collins; my niece, Laura Capron; my niece, Florence Lee Ward; my niece, Emily G. Dobyns; my nephew, Charles Collins ; my nephew, William Collins; my nephew, Richard Collins; my nephew, John Collins Lee; my nephew, William Rees Dobyns; my brother, Frank W. Armstrong.”

The evidence discloses that each and all of the foregoing are now dead. This being so, in the opinion of the court the time for the distribution of the real and personal property mentioned in item 8 has arrived.

Among whom, therefore, should this real and personal property be distributed Í

The testator says, that his executors and trustees shall proceed without delay to “divide such property or the proceeds thereof into as many equal parts as there will be then surviving children of my aforesaid nephews, nieces and of my brother Frank W. Armstrong.”

Who then are they ? Under the evidence they are as follows : John C., Mary S. and Eleanor Gallagher, children of testator’s niece, Mary E. Gallagher; John'A., George A., Frank A. and Mary E. Collins, children of testator’s nephew, Charles H. Collins ; Charles L., Thomas S. and John S. Collins, Amelia O. Ruggles, Hannah Collins de Chiara and Julia Collins Marvin, children of testator’s nephew, William A. Collins; Mrs. Myrtilla Dobyns Cunningham, Emily Dobyns Long and James A. Dobyns, children of testator’s nephew, William Rees Dobyns; and Mary A. Swigert, child of testator’s brother Frank W. Armstrong.

The court feels certain that the construction of the will sought by counsel for Harriette A. Goodloe can not obtain, as testator did not intend to postpone the distribution of his estate beyond the time of the death of his specifically named sisters, nieces, nephews .and his brother, Frank W. Armstrong, and particularly so when he distinctly stated that when the distribution should take place, his estate should be divided into as many equal parts as there will be then surviving children of his aforesaid nephews, nieces and his brother, Frank W. Armstrong, for otherwise the child of Frank W. Armstrong, Mrs. Mary A. Swigert, would not take the share of the estate given to her.

• Considering the entire will, the number of specific legacies devised, the persons to whom these legacies are given and the relationship each bore to the testator, we are of the opinion that the foregoing conclusion reached as to the construction of the will in question is correct.

A decree may be taken in accordance herewith and similar to the decree below.


text:
    GOODS CONDITIONALLY SOLDAN ANOTHER STATE RETAKEN IN OHIO.
    Circuit Court of Columbiana County.
    Harry Wurzel v. S. Delph’s Sons.
    Decided, May Term, 1912.

      Conditional Sales — Goods Sold in West Virginia Under Reservation of Title — Removed to Ohio and Subsequently Retalien — Conflict■ of Laws — Provisions of Section 8570 Pertain to the Remedy — Lex Pori Governs.

    1. Section 8570 of the General Code requiring one who sells chattels with reservation of title till payment of price to tender or refund back part of the money already paid before taking possession, pertains only to the remedy and will be observed by the courts whose jurisdiction is invoked to recover possession of the ■ property where such sales have been made in another state, ■ ■

      2. The laws of West Virginia on the subject of conditional sales’ of chattel property not requiring the vendor in such sales to tender or.refund to the purchaser of such property or any party receiving it from the vendor any portion of the money paid for the property before recovering posesssion of the same although more than twenty-five per cent, of the contract price has been paid, being in conflict with the established policy of our own state on the sub- • ject as shown by our statutes, will not be enforced by the courts of this state. ’

      W: F. Zones, for plaintiff in error.

      W. B. Hill, contra.
    Norris, J.; Pollock, J., and Metcalfe, J., concur.
   This is a petition in error to reverse a judgment of the court of common pleas in a replevin case.

S. Delph’s Sons brought an action before a justice of the peace -to recover possession of two pool tables. Such proceedings were had that the ease was appealed to the court of common pleas, and there tried on the pleadings and an agreed statement of facts. Judgment was rendered in favor of the plaintiffs therein. ,,..y .j

The material facts are as follows: S. Delph’s Sons, doing business in Pittsburg, Pa., on September 7th, 1905, made an agreement to sell to J. W. Woolsey of Chester, West Virginia, four pool tables for $508-. A portion of the pur,chase price was paid down and the balance was to be paid in monthly installments on the 7th day of each month ensuing until the full purchase price was paid, S. Delph’s Sons by the contract retaining title until the purchase price for the tables was paid in full. This written agreement of conditional sale was filed with the clerk of Hancock county, West Virginia, in accordance with the laws of that state.

- Some time thereafter Woolsey removed the tables to Liverpool or Wellsville in the state of Ohio, and there sold them to one Campbell and took a chattel mortgage back to secure the purchase price. This chattel mortgage was subsequently transferred. to the Riggs Company, who finally took possession of the tables-under the mortgage, sold them at public s-ale and bid them inf and-thereafter sold them to the defendant for valuable consideration, he purchasing them in good faith without any knowledge or notice of any prior claim on the part of the plaintiff or other persons to the tables. The defendant took possession of the tables and kept them for some time.

It appears they were in.'Ohio for *two or three years prior to the commencement of this action before the justice of the peace. No claim, contract or lien against the tables was filed by plaintiffs under the' law of the state of Ohio. By the laws of the state of West Virginia such written agreement of conditional sale must be filed with the county clerk stating the claim of the vendor. There is no provision in the law of West Virginia requiring the payment or tender back to the vendee of any portion of the money paid on such conditional sale as a condition to recovering possession of the property in that state.

There. appears to have been paid prior to the removal of the tables from Chester the sum of $308, leaving a balance due of $200. No payment or tender back of any portion of the money paid was made by the plaintiffs prior to bringing their action.

Under such statement of facts had the plaintiffs the right to recover possession of the property? Will the courts of Ohio enforce the law of West Virginia in this kind of a- case, or should the law of Ohio be applied ? The law of West Virginia is not pleaded, but is found in the agreed statement of facts. Section 8570 of the General. Code of Ohio reads as follows:

“When such property except machinery equipment and supplies for railroads and contractors, for manufacturing brick, cement and tiling, and for quarrying and mining purposes, is so sold or leased, rented, hired or delivered, the person who sold, leased, rented, hired,- delivered, or his. assigns or the agent or servant of either or their agent or servant shall not take possession of such property, without tendering or refunding to the purchaser, lessee, renter, or hirer thereof, or any party receiving it from'the vendor, the money so paid after .deducting therefrom a reasonable compensation for the use of such' property, which in no case shall exceed, fifty per cent, of the amount,so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in the contract or not, unless such property, has been broken or actually damaged, when a reasonable compensátion for such breakage .or damage, shall ..be allowed. But the vendor shall not be required to tender or refund any part of the amount so paid unless it exceeds twenty-five per cent, of the contract price of the property.”

Does this statute apply to the remedy? This was an action to recover possession of the property. The statute says possession shall not be taken without tendering or refunding back a portion of the amount paid. It appears in this case that such an amount had been paid that the statute required a portion thereof to be refunded or tendered back by the party seeking to recover possession.

It seems to us that the statute in express terms denies any remedy to a vendor under such circumstances without some tender back. If the above quoted statute, applies to the remedy, then by familiar rule of law the law of Ohio should be enforced and not the law of the state of West Virginia.

In the case of Heaton v. Hldridge, 56 O. S., 87, we find in the syllabus:

“Contracts receive their sanction from the law of the place where they are executed and to be performed, and their interpretation is controlled by that law; but thé remedy upon the contract will be administered according to the law of the place where the remedy is sought.”

The third proposition:

“An agreement, which by its terms, is not to be performed within one year from the time it was made, will not be enforced in this state, unless the agreement, or some memorandum or note thereof is in writing, and signed by the party to be charged or by some person authorized by him to sign it, although.the agreement was made in another state, or country where it was competent to prove the same by parol evidence.”

In Furgeson v. Clifford, 37 N. H., 86:

“The remedy on chattel mortgages executed in another state must bFlex fori.”

In Public Parks Amusement Company v. Embre-McLean, 40 S. W., 482, the syllabus is as follows:

“1. .Though a sale of chattels in Missouri, with reservation of. title in the seller till payment of price, is void as to subsaquent tona fide purchasers, unless evidenced by a writing, acknowledged and recorded, it is valid between the parties; and if the purchaser brings the property into Arkansas, and conveys it to a third person the law of the latter state governs the conveyance, and such person acquired no title as against the original seller, though the original contract was not recorded.
“2. The statute of Missouri requiring one who sells chattels with reservations of title till payment of price to refund part of the money already paid, before retaking the property, pertains only to the remedy, and does not govern a suit in Arkansas to recover chattels so sold in Missouri.”

Applying the law of this state as to remedy, the plaintiff must fail in this case. In Speyer & Company v. Baker, 59 O. S., 11, it is held:

"The purchaser is entitled to the possession of the property under the circumstances of this case until there shall be refunded or tendered back the amount paid as a reasonable compensation for the use' of the property, and for any damage done while in his possession.”

And in National Cash Register Company v. Cervone, 76 O. S., 12, it is held that this statute applies to a mortgagee or purchaser from the original vendee.

Therefore, applying this statute, before the plaintiff can recover possession of property in this state tender back must be made in accordance with its provisions. But, aside from that question, can the statute of West Virginia be enforced in this state? It is urged that it can not because the statute-not providing for repayment of any portion of the purchase price paid before taking possession of the property, it is against the policy of this state, and therefore our courts would not enforce it.

The statutes of one state or country are not enforced by the courts of another state or country as a matter of right, but only as a matter of comity. As said in Edgerly v. Bush, 81- N. Y., 199-204, in speaking of the statutes of Canada the court say:

"Vet the statutes of that land have no- extra-territorial force proprio vigore though often permitted by comity to operate in another state for the promotion of justice, where neither the state or its citizens will suffer any inconvenience from the application of them. The exercise of comity in admitting or restraining' the application of the laws of another country must rest in sound judicial discretion dictated by the circumstance of the case.”

When the statutes of another state or country are against the policy of the laws of our own' state our courts then refuse to enforce such foreign law.

In Kanaga v. Taylor, 7 O. S., 134, we quote from the third proposition of the syllabus:

"By the law of comity between different states, the lex loci contractus controls as to the validity and construction of personal, contracts, though not as to the remedy or rule of evidence; not"where it clashes with the rights of our own citizens, or. the policy of our own laws.”

Kulp v. Fleming, 65 O. S., 321-340: The same rule is found in 183 U. S., 263.

In Walworth v. Harris, 129 U. S., 355, we quote from the syllabus:

“•Although a court of one state will give effect to the law of domicil of another state, yet this is a mere principle of comity' between the courts, which must give way when the statutes of a country where property is situated, or the established policy- of its laws, prescribe to its court a .different rule.”

-The statute of. Ohio which we have quoted above establishes a very different rule in this class of cases as we have seen, and such statute we think must be held to establish the policy of this state in regard to the same, and the law of West Virginia being in conflict with the settled policy of our own law, as enacted by the Legislature, can not be enforced by our own courts. For this reason the judgment of the court of common pleas was erroneous and the same will be reversed, and the case remanded for a new trial according to law.