text:
    (Seventh Circuit — Harrison Co., O., Circuit Court,
    Nov. Term, 1896.)
    Before Laubie, Frazier and Burrows, JJ.
    THE WHEELING & LAKE ERIE RAILWAY CO. v. ROBERT STEWART, TREASURER.
    1. Levy for general county purposes — The last clause of section 2823, Revised Statutes, “that whenever in any county the levy in the first clause of this section authorized is deemed insufficient for general county purposes, the commissioners may increase said levy by any amount not exceeding six-tenths of a-mill on the dollar valuation ; but in such, case the levies for other purposes shall be reduced to the same extent, so that the total levies for all purposes shall not exceed the limits in this chapter prescribed.”

      a. The limitation applies only to levies authorized in Chapter 5, Title 13, Revised Statutes, and not to levies authorized by special and other general statutes.

      b. Where the levy for general county purposes exceeds the amount authorized in the first clause, but does not exceed the amount authorized by the section, the failure of the commissioners to certify or state in the record, “that the levy in the first clause of this section authorized is deemed insufficient,” does not make the levy excessive.
    2. Levies, part of which are legal, and part excessive — Where part of the tax assessed on personal property is illegal by reason of excessive levies, and the tax payer has had no opportunity to pay that which is legal without also paying that which is illegal, and the treasurer proceeds under section 2859, Revised Statutes, to enforce the collection, by a civil action against such person, who interposes and maintains a defense to the illegal part, the ten per centum penalty previously added under section 2855, Revised Statutes, was wholly unwarranted and invalid, and no part of it should be included in the judgment.
    Error to the Court of Common Pleas of Harrison county.
   Frazier, J.

The action below was brought by the treasurer of Harrison county to collect of the railway company on account of taxes, the sum of $3,163.61, in which is included a penalty of ten per centum under section 2855, Revised Statutes, for the non-payment of the taxes due December 1894, and June, 1895.

The defendant, by answer, says the levies are illegal and excessive, and there is due $2,784.37, and no more.

The plaintiff, by reply, says the total valuation for taxa-'1 tion in Harrison county exceeds eleven millions and does not exceed fifteen million dollars; that the amount sued for, as due for taxes, is made up in part of state, county and local township taxes and in part of the penalty of ten per • centum for non-payment when due, and denies that the levies are excessive or illegal; that by reason of the defendant not tendering or offering to pay the taxes it admits to be legally levied, it is liable for the payment of the penalty and interest on such part as was legally levied and unpaid from the time they became due and payable.

The case was tried upon an agreed statement of facts, which are embodied in a .bill of exceptions, and the court gave judgment for taxes, penalty and interest in the sum of $3,135.95, and it is claimed that in this the court of common pleas erred.

It is admitted by the agreed statement, that the levies for township purposes in some of the townships were in excess of the amount authorized by law, and the court gave judgment for the amount claimed, less the sum admitted to be illegally levied, and the railway company claims that from the agreed statement of facts and the law, the levy for general county purposes is also excessive.

The judgment of the court of common pleas reduced the amount of the township levies by the amount agreed to be illegal, but held that the levy for general county purposes was not excessive; and also held that there having been no tender of the amount admitted to be due, the treasurer was entitled to recover the penalty on such sum as is legally levied.

Two questions are urged by the plaintiff in error: First, that the levy for general county purposes is' in excess of the amount authorized by law, and this involves a construction of the proviso contained in the latter part of section 2823, of the Revised Statutes. The second is, whether, in the absence of a tender of so much of the taxes as is admitted by the tax payer to be due, the penalty can be collected in a suit brought by the treasurer for the taxes, based on the amount standing on the treasurer’s duplicate, a part of which is admitted to be illegal.

It appears, from the agreed statement of facts attached to the bill of exceptions, and which, it is agreed, shows the levy of taxes in Harrison county in the year 1894, that the total levy by the county commissioners for all purposes was five mills and eight and one-half tenths of a mill, as follows: County levy, eighteen-tenths mills; infirmary fund, six-tenths of a mill; Children’s Home levy, two-tenths of a mill; bridge levy, six-tenths of a mill; for new roads, two tenths of a mill; building levy, two tenths of a mill; election levy, one-tenth of a mill;, court house levy, eleven and one-half-tenths mills; county road, ten-tenths of a mill; total, fifty-eight and one-half-tenths mills, or the amount stated above.

The last clause of section 2823 provides:

“Whenever in any county the levy in the first clause of. this section authorized, is deemed insufficient for general county purposes, the commissioners may increase said levy by any amount not exceeding six-tenths of a mill on the dollar valuation; but in such case the levies for other purposes shall be reduced to the same extent; so that the total levies for all purposes shall not exceed the limits in this chapter prescribed. ’’

The limits prescribed for the taxes which may be levied by the county commissioners by the chapter referred to, Title 13, Chap. 5, in a county of the class of Harrison, exclusive of such provision is, under section 2823, for county purposes,one mill and five-tenths, for building county buildings and purchasing sites therefor, and lands for infirmary purposes, one mill and five-tenths.

Under section 2824, as amended in 91st Ohio Laws, 196, for road and bridge purposes,one mill and five-tenths; under section 2826 for the support of the poor, six-tenths of a mill, making a total levy authorized by the chapter of five and one-tenth mills, so that the levy actually made of five mills and eight and one-half tenths of a mill is in excess of the rate mentioned in this chapter, by seven and one-half-tenths of a mill.

The defendant in error claims that the limitation in the latter clause of section 2823 applies only to the levies authorized by title 13, chap. 5, of the Revised Statutes, and does not apply to the levies for new roads, two-tenths of a mill, election levy one-tenth of a mill, and court house levy eleven and one-half-tenths mills, which are levied under other statutes.

If the limitation is to apply only to levies provided for in chapter 5, title 13, and not to levies authorized by other general and special statutes, then the county commissioners have not exceeded the rates they were authorized to levy.

There is a levy under a special statute, 90 Ohio Local Laws, 279, of eleven and one-half tenths mills for the erection of a new court house. That statute provides, in section 2:

“That the county commissioners of said county, for the purpose of constructing said court house, are hereby authorized to borrow such sums of money as may be necessary at a rate of not exceeding six per cent per annum and issue the bonds of the said county to secure the payment of principal and interest thereon, and such interest shall be payable semi-annually at the office of the county treasurer; said bonds shall be issued and sold in all respects in pursuance of existing laws at not less than their face value, and the principal shall be paid at said county treasurer’s office at such times as the commissioners shall prescribe not exceeding nine years after date, and said bonds shall specify the object for which they were issued. The commissioners shall, annually, at their June session, levy such amount of. taxes as will fully meet the interest on such indebtedness and at least one-ninth of the principal.”

It was under this statute that the commissioners made the levy of eleven and one-half-tenths mills, and if it is the true construction of the law, that the amount authorized to be levied by this statute is in addition to that which is authorized by the general laws prescribing the rate of taxation, and in no manner reduces the amount which the commissioners may levy for every purpose prescribed by the general statutes, then the levy is not in excess of the rate which the commissioners might levy for general county purposes, and we think this is the true construction of this statute, and it renders it unnecessary for us to examine the levies which are made under those statutes for new ■ roads and election purposes, for they would, probably, as is claimed by counsel for the defendant in error in this case, be governed by the same rule; but whether so or not,if the construction we give to this special statute is the correct one, then the levies are not excessive.

The first clause of that section, 2823, prescribes the rate of taxation,and permits, in a county having the taxable value of property of Harrison, a levy for general county purposes of one mill and five-tenths, and the latter clause of the section permits a levy of six-tenths of a mill, or together two and one-tenth mills, or twenty-one-tenths mills, and the levies for county purposes made by the commissioners is eighteen-tenths, or one mill and eight-tenths mills.

It is urged that there is no statement or finding that the levy in the first clause of the section authorized is deemed insufficient for general county purposes. On the other hand it is claimed by counsel for the defendant in error, that it is to be presumed in favor of the record of the county commissioners that they made a leagl levy, and that the construction to be given to the commissioners’ record should be a liberal one, such as is given to the records, of courts of subordinate and inferior jurisdiction.

In the case of Lima v. McBride, 34 Ohio St., 338, an action to compel, by mandamus, McBride, as auditor, to place upon the duplicate a levy made by the county commissioners, the syllabus is:

“1. If two statutes provide for the levy of a road tax, and the record of the board of county commissioners, levying such tax, is susceptible of a construction which bases the levy equally well on either statute, but as appliedjto one the levy is excessive; and, applied to the other, is not excessive, such levy will, prima facie, be regarded as based on the latter act, although the tax therein mentioned can only be levied to provide for a particular condition of the roads, while the other act is general, and the levy actually made is in general terms.
“2. Where the county commissioners, intending to make a levy of taxes for road purposes, under the act of April 30, 1869, (66 Ohio Laws, 60), cause such levy to be entered on the record, in general terms, the tax will not be regarded as invalid, or made under the act of 1877, (74 Ohio Laws, 92), on the mere ground that the record does not show the existence of the facts which warranted the levy under the former act.

Okey, J., in the opinion, says:

“Beside the claim, which we hold to be untenable, that even if the taxes were levied under the act of April 30, 1869, they must, under the act of 1877, and section 487 of the municipal code, be expended in the municipal corporation,the city further claims that the act of 1877 is general; that the levy, in the general form set forth in the record, is a substantial compliance with that act; that the time specified for making the levy, that is, at a special session, in May, 1877, was directory; that if the amount levied and collected was in excess of that authorized by the act, the county auditor could not interpose the objection in this case; that the act of April 30, 1869, has relation to a special condition of things, of the existence of which nothing appears in the record; and, therefore, that it necessarily follows the levy was made under the act of 1877.
“Admitting the premises, does the conclusion follow that this was a levy under the act of 1877, and not under the act of April 30, 1869? Possibly it is true that naming the time for making the levy was not a limitation on the authority of the commissioners, and it may also be true that the auditor could not avail himself of the defense that the amount levied is in excess of that authorized by law (31 Ohio St., 432); but in the construction of these acts, in determining whether the levy was made at the time and for the amount expressly authorized by the act of 1869, while it was not made at the time directed in the act of 1877, and was.in excess of the levy authorized thereby, is of great importance. ‘ When an instrument is susceptible of two conflict-■mg probable constructions, the court will adopt the construction which is most consistent with good faith, and will hold that such construction was intended by the parties; and this rule of construction applies to cases where an act or fact is ' fairly susceptible of two interpretations, one lawful and the other unlawful.’ 2 Wharton Ev., section 1249.
“The commissioners of a county constitute a board, and the county auditor is their secretary, who is required to keep ‘an accurate record of all their corporate proceedings.’ 67 Ohio Laws, 104. The proceedings of the board are, in many respects, those of a court of special and inferior jurisdiction.
“In Anderson v. Commissioners, etc., 12 Ohio St., 635-643, it is said: ‘The limited record they direct to be made is to be considered evidence of the establishment of the road, although unaccompanied by proof of the essential requisites to the exercise of the jurisdiction conferred.’ The same principle is recognized in Beebe v. Scheidt, 13 Ohio St., 406; Corry v. Gaynor, 22 Ohio St., 584; McClellan v. Miller, 28 Ohio St., 488; Frevert v. Finfrock, 31 Ohio St., 621.
“In this case it appears the commissioners were clothed with authority to levy taxes for road and bridge purposes. They met as a board at the time directed in the act of April 30, 1869, took the subject of a levy for road purposes under that act into consideration, and made a levy for the purpose, general in terms,in excess of that authorized by the act of 1877, but within the act of 1869, which was the statute upon which they intended to base their action. Consequently, it appears the matter was within the jurisdiction of the board. The authorities above mentioned, though referring to judicial action, are applicable; and, moreover, they are in accordance with the general rule. ‘Judicial officers, though of special and limited jurisdiction, will be presumed to have acted regularly as to all matters within their jurisdiction, unless the record shows to the contrary.’ 2 Wharton Ev., section 1308; 2 Best’s Ev., section 360.
“While levying of taxes is a legislative power, (Cooley on Taxation, 33), the record of the officers making the levy will’ receive at least as favorable consideration as the records of an inferior judicial tribunal. In the well considered case of West School District v. Merrills, 12 Conn., 437, it was said: ‘There is no rule of law which requires any formal technical statement of the objects for which the money is to be raised. All that can be required as to such statement, to render the vote prima facie legal, is that it should appear from the vote, with reasonable certainty, that the tax is laid for a purpose authorized by law. ’ The same view is strongly enforced in Adams v. Hyde, 27 Vt., 231; Blodget v. Holbrook, 39 Vt., 336; West v. Whitaker, 37 Iowa, 598.”

We are, therefore, of opinion that the county commissioners in this case were not required to say that in their judgment the amount prescribed in the first paragraph of the section was insufficient for general county purposes; but they, having kept within the limits of the law which they might levy, under the circumstances prescribed in the section, the levy is not excessive.

We do not deem it necessary to follow out further the questions raised as to the legality of the levy for general county purposes. Under any view of the case the commissioners acted within the authority given them by section 2823 of the Revised Statutes, and that the provisions or limitations in that section do not in any manner interfere with the duty and the right of the county commissioners to make the levy directed by local and other general statutes, and that in making the levy they were not without authority, and their action is legal.

As to the second question, is the defendant liable for a penalty of ten per centum on the amount of taxes that was legally assessed?

It is admitted that the township levies, or some of them, which were included in the demand made, were excessive, and the levy therefore illegal. We are unable to find any adjudicated Ohio case in point.

We have been referred in argument to 3 Ohio Nisi Prius, 274, an opinon of Judge Nye, in the common pleas court of Lorain county, Ward, Treasurer, v. The Wheeling and Lake Erie Railway. In the syllabus, it is said:

“In a township where the taxes are excessive in some particulars, and for that reason the railroad company refused to pay or tender any part of its taxes, whether the penalty should be added- — -query?”

Judge Nye, in the opinion, says:

“While I am in serious doubt as to the law with reference to requiring the defendant to pay the penalty upon townships where the taxes are excessive, I have decided to follow the rule laid down for equity cases, and require the defendant in this case to pay the penalty for the same reason that it made no tender of the amount that it admitted to be due.”

We have also been referred or cited to a number of cases in Ohio, but none of them, in our judgment, involve the questions raised in this case.

We are cited to the case of Groesbeck v. Cincinnati et al., 51 Ohio St., 365. In reading the opinions or decisions of the court we must bear in mind, in considering the language used, the question that is under consideration, and we must apply the language used to the case that is then at bar and which the court is determining.

The syllabus of the case is:

“An ordinance of a city, assessing on the property abutting on a street more than is required to pay the cost of the improvement of the street is, as to the excess of the assessment over the cost of the improvement, illegal; and, having been paid by the property owner, an action to recover back such excess under section 5848, Revised Statutes, must be commenced within one year after such payment. The fact that the passage of the ordinance was induced by a mistake in the calculation of the cost of the improvement, and that payment was made in ignorance of such mistake, will not have the effect to save the action from the limitation provided for in said section.”

We think the authorities referred to in support of the judgment of the court below, that the defendant below should have tendered the amount which it admitted to be due, do not at all decide the question,or assist us in deciding it.

The plaintiff in error claims that if the amount admitted to be due had been tendered, the treasurer could not have received it, and in support of that proposition he cites Revised Statuts, sections 1091, 1092 and 1093. Section 1091 reads:

“Each person charged with taxes on a tax duplicate in the hands of a county treasurer, may pay the full amount of such taxes on or before the twentieth day of December, or one-half thereof on or before the twentieth day of June next ensuing; but all road taxes so charged, shall be paid prior to the twentieth day of December.”
“Section 1092: When taxes, charged against the property of any person, are paid by installments, as aforesaid, each of such payments, exclusive of road taxes, shall be apportioned among the several funds for which taxes have been assessed, in their proper proportions.”
“Section 1093: When a person desires to pay only a proportion of any tax charged on real estate, otherwise than in installments, as aforesaid, such person shall pay a like proportion of all the taxes charged thereon for state, county, township or ether purpose, exclusive of road taxes; and no person shall be permitted to pay one or more of said taxes without paying the others in like proportion, except only when the collection of some particular tax is legally enjoined.”

The query is, what does section 1093 apply to?

Can a party, under that section of the statute, for instance, pay the county taxes, and refuse to pay the township taxes? Can he select one, under the provisions of that section, and' say I desire to pay such proportion which I admit to be legal, and refuse to pay the other?

We think that section applies only where a tax payer desires to pay a proportion of the taxes assessed and levied for all purposes, as where he is a part owner, and not where he admits that part is legal,- and desires to pay- the legal taxes assessed and desires not to pay the portion which he claims to be illegal; and that the only provision of the statute under which a person may select one levy — as, for instance, a levy made by the county commissioners, and refuse to pay a levy made by the township trustees, or vice versa, and claim that one is legal and the other illegal — is under the provisions of section 5851 of the Revised Statutes, which provides:

“If the plaintiff, in an action to enjoin the collection of taxes or assessments, admit a part thereof to have been legally levied, he must first pay or tender the sum admitted to be due; if an order of injunction be allowed, an undertaking must be given as in other cases; and the injunction shall be a justification of the officer charged with the collection of such taxes or assessments for not collecting the same.”

It is true, as is said in argument, that before the tax payer can enjoin, he must tender that which he admits to be legal and due.

That may be founded upon either of two principles:

One of the principles was stated by counsel for defendant in error in argument, that before a man can appeal to equity he must do equity; that he must tender the amount due.

But probably it rests upon another and more substantial basis and one of more certainty, that a person is not permitted, because he questions a small amount of the assessment, admitting the greater portion to be due, to litigate the question and hold in his hands unpaid that which h admits to be due, and when he appeals to a court, before the court will give him a remedy in cases of this kind, he must pay the amount which he admits to be due.

But there is another provision of the statute which, as we think, applies to cases of this character.

The law does not intend that a man shall pay money which is not due from him, and take the risk of collecting it back, with the officer answering that the payment was voluntary, unless it is necessary to do so in order to protect his property. Where the officer is proceeding in a summary maimer to collect the taxes, then he may either pay it under protest and recover it back, or he may himself appeal to the courts; but where the officer is not threatening to proceed summarily, and is appealing to the law, as he may, and frequently does, for his own protection, the law makes ample provision for the payment of the amount admitted to be due.

Section 5320, Revised Statutes, provides:

“When all or part of one or more of the causes of action are not put in issue by answer, judgment may be taken, as upon default, for so much of the plaintiff’s demand as is not put in issue by the answer, upon any or all of the causes of action, without prejudice to the rights of the plaintiff, as to that portion of his demand disputed; and if, in the determination of any cause, the t-aking an account, proof of a fact, or the assessment of damages is necessary, the court will take the account, hear the proof, or assess the damages, or may refer the case to a referee or master for such purpose, or direct the matter to be ascertained by a jury, as the case may require. ’ ’

The officer, probably for his own protection, instead of taking the summary mode of collecting by distress, appeals to the courts in this case, and when the defendant answers he has the right to take judgment as upon default for the part admitted to be due, and litigate the portion claimed to be excessive or illegal.

It is said, again, that no tender was necessary, from the fact that the county treasurer could not have received the amount which was admitted to be due if there had been an offer or tender of the taxes admitted to be due, unless the party had paid upon that which was illegal and unlawful an equal amount with that which is lawful, and that the law will not require a vain thing; it will not require a tender where the party cannot or will not receive the tender, if made. We are referred to the case of Manhattan Life Insurance Company v. Smith, 44 Ohio St., 156. The fourth paragraph of the syllabus is:

“Where, in such case, the company repudiates the contract, and by its course of conduct clearly indicates that a tender^of the premium after death of the insured, if made, would not be accepted, a failure to make such tender will not bar a recovery on the policy.”

And in the opinion, Spear, J., says:

“'“‘The action of the company in the case at bar was, in effect, a repudiation of-its promise to pay the amount stipulated in the policy. Even had Mrs. Smith learned the amount and time of payment after the death of her husband,. a tender would have been a useless ceremony. ‘On general principles, whenever the act of one party, to whom another is bound to tender money, services or goods, indicates clearly that the tender, .if made, would not be accepted, the other party is excused from technical performance of his agreement. The law never requires a vain thing to be done. Isham v. Greenham, 1 Handy, 361; See, also, Brock v. Hidy, 13 Ohio St., 306.”

In Tracy v. Irwin, 85 U. S., 549, part of the syllabus is:

“If the tax commissioners have, by an established general rule announced, and a uniform practice under it, refused to receive the taxes due unless tendered by the owner in person, even a formal offer by another to pay is unnecessary. It is enough if a relative of the owner went to the office of the commissioner to see after the payment of the tax on.the property, but made no formal offer to pay, because it was in effect waived by the commissioners, they declining to receive any tender unless made by the owner in person.”

In State v. Certain Lands, etc., 42 North Western Reporter, 473, the Supreme Court of Minnesota hold:

“That the penalties for the non-payment of taxes can only be imposed after the tax payer has had an opportunity to pay and fails to do so, Hence, where a part of the tax is illegal, the party had had no opportunity of paying the legal part alone, and he interposes and maintains a defense to the illegal part of the 10 and 5 per cent, penalties previously interposed under section 69 of the general tax law, were wholly unauthorized and invalid, (the party not having been then in default), and no part of them should be included in the judgment. ”

Swayne, Swayne & Hayes, and D. A. Hollingsiuorth, for Plaintiff.

W. T. Perry, for Defendant.

Mitchell, J., in the opinion says:

“A penalty for the non-payment of a tax cannot be imposed until the person has an opportunity to pay it and fails to do so. * * * As the whole tax extended against a tract of land is an entirety, the owner can not pay a part of it without paying the whole, and if apart is illegal and he pay the whole, ordinarily it would be a voluntary payment, and he could not recover back the illegal part. Hence, in such case, his only remedy is to wait until proceedings are commenced to enforce the judgment against his land, and then defend against the illegal part of the tax; and until it is deducted by the judgment of the court, he has had no opportunity to pay the valid part of the tax, and consequently has been guilty of no default.”

We are of the opinion that the treasurer was not authorized to receive the taxes which were admitted tobe legal without receiving also an equal amount upon the township taxes that were admitted to be illegal and excessive, and that the defendant having at the earliest opportunity by answer admitted the amount which he claimed was due, the county treasurer might-have, as upon default, taken judgment for that amount without prejudice to his rights to the portion of his demand disputed, and that he had no right to make a demand for that which was illegal and excessive, and by so doing he could not legally place the company in default for the payment of that which is legal, and that the judgment, so far as the penalty is included in it, is erroneous.

So far as the penalty enters into the judgment, so far the judgment is reversed, and affirmed as to all other matters; and, under the statute, the case being affirmed in part and reversed in part, the costs will be divided equally between the parties.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    (Sixth Circuit — Sandusky Co., O., Circuit Court,
    Dec. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    THE WHEELING & LAKE ERIE RAILWAY COMPANY v. JOSEPH WOLFE, TREASURER OF SANDUSKY COUNTY.
    Interest on unpaid taxes.

    Taxes levied do not draw interest from the time they were payable, or from the commencement of the action for their collection, nor until judgment is rendered. The allowance by the statute of penalties covers interest until the claim has gone into judgment; and where penalties are disallowed, interest also should be disallowed.

      Levy to pay deficiency bonds, when not authorized.

    A levy to pay deficiency bonds issued under an act of legislature for that purpose, is unauthorized where such act does not expressly authorize such levy.
    (See in connection with this case the foregoing decision by Fra zier, J., in W. &. L. E. Ry. Co. v. Stewart, Treasurer, in Circuit Court of Harrison county.)
    Error to the Court of Common Pleas of Sandusky county.
   King, J.

This is a proceeding to reverse the judgment of the common pleas court of Sandusky County, and we have come to the conclusion that that judgment should be modified in some respects, and will indicate, so that counsel may prepare an entry, the extent of those modifications.

1. We hold, following the opinion of the circuit court of Harrison county, in W. & L. E, R’y. Co. v. Stewart, treasurer, that the plaintiff below is not entitled to recover anything by way of penalties upon the taxes charged, either for the 10 per cent, added to the delinquent taxes, so-called, or the 5 per cent, claimed by the treasurer as due him for collection; and we refer to the opinion of Judge Frazier in the case cited for our reasons for this holding.

2. We are of the opinion that the taxes levied do not draw interest from the time they were payable or from the commencement of the action, nor until judgment is rendered. The allowance by the statute of penalties is intended, we think, to cover interest until the claim has gone into judgment; and for the reasons that we disallow the penalties, we think also interest should be disallowed. Therefore, the amount of the judgment will be computed without any allowance of interest, the judgment drawing interest from the date when it was originally rendered — that is, from the first day of the November term, 1896.

Sioayne, Swayne & Hayes, for Plaintiff in Error.

3, We are also of the opinion that the judgment was erroneous, because it included certain amounts levied to pay deficiency bonds, or bonds issued for deficiency purposes. These amounts are stated to be $97,50 in 1894,and $121.70 in 1895. We find no -provision of law authorizing that levy. Those bonds were issued pursuant to an act of March 13, 1894, which authorized the issuing of $50,000 of bonds “to pay deficiencies existing in-the various funds of said county.” Without an express provision of the legislature authorizing that kind of a levy, we think it is not permissible. These bonds were issued for no improvement or purpose authorized by law, but to delay payment of the deficiency where different funds had been overdrawn; and we think the county must rely upon it's levies authorized by law for these several funds to provide the means with which to pay these bonds, in the absence of express legislation on that subject. Therefore, to that extent, the judgment will be modified.

Each party to pay one-half of the costs taxed in the court of common pleas and in this case, including the referee’s and stenographer’s bill.


author: Smith, J.

text:
    (First Circuit- — Hamilton Co., O., Circuit Court
    Jan. Term, 1889.)
    Before Swing Cox and Smith, JJ.
    THE STATE OF OHIO ex rel. v. THE WALNUT HILLS, MADISON & PLAINVILLE ROAD CO.

      Pleading — Departure defined.

    A departure in pleading is the statement of matter in a replication or subsequent pleading, as a cause of action or defense, which is not pursuant to the previous pleading oí the same party, and which does not support or fortify it. Where therefore, in a quo warranto case, the reply sets up the particular facts which it is claimed show that the defendant company in exercising franchises and privileges which it may once have had, but which it does not now possess, such matter supports and fortifies the petititon, and is not n departure therefrom, and such reply is not demurrable.

      Pleading in Quo Warranto eases.

    The rule of pleading in quo warranto cases established by the Supreme Court in 23 Ohio St., 121, before the revision of the statutes by which such proceedings were brought under the code, that where in such cases the defendant pleads an act of the legislature granting to it the franchises named in the information, it is competent for the relator by way of replication to aver cause of forfeiture,and to pray for a judgment of dissolution, was not affected by bringing quo warranto proceedings under the code. It was not intended by the revision substantially to change the mode of pleading in such cases.
    Quo Warranto.
    On Demurrer to Reply.
   Smith, J.

The petition in this case alleges that the defendant company, for six years last past, in this county has used, and does still use, without any grant or charter, certain privileges and franchises mentioned therein, and among others named, of being a corporation by the name aforesaid, and to use and occupy a certain public road described therein, and to collect tolls on said road. And it calls upon the defendant to answer by what warrant it claims said privileges, and asks for a judgment ousting the defendant therefrom, and for all proper relief.

The defendant, by its answer, first admits that it exercises the liberties, privileges and franchises aforesaid, and denies all the other allegations of the petition. And, second, avers that it was chartered as a turnpike road company, by the name aforesaid, by a special act of the General Assembly of Ohio, passed February 8, 1847, That no part of its turnpike is within the limits of any municipal corporation, and that by virtue of its said charter it has for more than twenty-one years past, exercised a'lL the liberties, franchises and privileges aforesaid, and thén pleads in bar of this action thé statute (of limitations?) in such cases made and provided.

The reply of plaintiff, first, denies the allegations (of new matter?) in the answer Second, it says that if the defendant was chartered as alleged, that since the — day of •--- — ■—, 1877, it had abandoned all rights, privileges and franchises under said act, and has dissolved its corporate existence. That in 1877 said company commenced proceedings in the common pleas court of this county to compel the city of Cincinnati to purchase so much of its road as was within the city limits; that in said suit the value of the entire road was fixed at 117,000,which was paid by the city, and the corporation was then, by the act of the stockholders, dissolved, and that since then it has had no corporate existence whatever. That the property of the company has, since then, never been returned for taxation; or any tax paid thereon, nor has the company performed any of the duties enjoined upon it by law; but that assuming to act under its corporate name and franchises, one Geo. Lengonner has illegally located, and is now maintaining toll gates, and receiving tolls at said gates.

3rd. It alleges that if the defendant ever had a charter, as pleaded, it has misused said franchise by demanding and receiving tolls in excess of the amount allowed by law.

4th. That it has failed to keep accurate accounts of the expenses of building the road, and the expenses of toll gatherers, officers, agents and employes, and of the amount of tolls .received by it since its organization, and has declined and refuses to submit its said books to inspection as provided by law, although requested to do so, and that the total receipts of the company exceed the cost of building the road, with twelve per cent, interest thereon.

5th. That the defendant company has failed to open and maintain its road as required by law.

To this reply a demurrer was filed on the grounds: 1st. That each of the paragraphs thereof is insufficient in law; and, 2nd. that the same, and each paragraph thereof is a departure from the petition.

Should this demurrer be sustained? It is apparent, we think, from the petition and reply, that the action is brought against the defendant company under the provisions of section 6761, Revised Statutes, to oust it from certain privileges and franchises exercised by it, but which plaintiff claims it has lost, 1st. By offending against the provisions of the act creating it. 2nd By committing an act which amounts to a surrender of its corporate rights, privileges and franchises; and: 3rd. By its misuse of a franchise conferred upon it by law.

If these allegations had all been contained in the petition, as they now appear in the petition and reply, there could be no question but that the action was properly brought under section 6761, and if the facts were not denied, or if proved at the trial, the plaintiff would be entitled to a judgment as prayed for. And we are of the opinion, since the revision of the statutes, which substantially provides that proceedings in quo warranto are to be conducted under the provisions of the code of civil procedure, that this is the better and more logical practice. But as the pleadings stand, the question is, are the allegations of the reply a departure from those of the petition ?

A departure in pleading is defined to be, “the statement of matter in a replication or subsequent pleading, as a cause of action or defense, which is not pursuant to the previous-pleading of the same party, and which does not support or fortify it,’’ Bouvier’s Die. Under this definition we do not think the matters set up in the reply constitute a departure from the petition. They only set up the particular facts which it is claimed show that the defendant company is now exercising franchises and privileges which it may once.have had, but which it does not now possess; in other words, to support and fortify it.

If pleading in quo warranto proceedings, were now to be substantially as before the revision of the statutes, this question is authoritatively settled by the decision of the Supreme Court in the case of Ohio v. Penn. & Ohio Canal Co., 23 Ohio St., 121, where it is held, that “when an information,in the nature of a quo warranto, is filed against a corporation, by its corporate name, calling upon it to show by what warrant it claims to be a corporation and. to exercise corporate powers, and the defendant pleads an act of the legislature granting to it the franchises named in the information, it is competent for the relator by way of replication to aver cause of forfeiture, and to piay for a judgment of dissolution.’

We are of the opinion that this rule of pleading is not affected by bringing quo warranto proceedings under the. code. That it was not thus intended substantially to change the mode of pleading in such cases.

We are also of the opinion that the paragraphs of the reply, which set up these causes for forfeiture, and which are alleged to be in violation of the duties imposed upon the company by the charter pleaded by the defendant, and which we are thus authorized to look at, are not subject to a demurrer. They allege facts which, if true, show that the company has offended against several of the provisions of •its charter, and which amount to a surrender of its corporate rights, and that it has misused a franchise conferred upon it by law.

What the judgment of the circuit court should be if those allegations,or any of them,should be established by evidence, of course we do not say. All we decide is, that in our judgment the demurrer is not well taken.

Burch & Johnson, for Relator.

Harmon, Colston, Goldsmith & Hoadly, and Paxton & Warrington, for Defendants.


author: Laubie, J.

text:
    (Seventh Circuit — Mahoning Co., O., Circuit Court,
    Nov. Term, 1896.)
    Before Laubie, Frazier and Burrows, JJ.
    P. &. L. E. R. R. Co. v. WILFRED W. BISHOP.

      Postal clerk on train not a passenger under U. 8. laws.

      1. The plaintiff below, Bishop, was in charge of the United States mails on a train of the railway company, en route from Youngstown, Ohio, to Pittsburgh, Pa., and was severely injured by a freight train colliding with a train on which he was so engaged, in the latter state, caused by the negligence of the conductor of the freight train ; and as a postal clerk on duty is not a passenger under the laws of Pennsylvania and the decisions of the Supreme Court of the United States, and as no recovery could be had under the laws of that state, for such injuries, held : that, by reason thereof, no recovery could be had in the courts of this state for such injuries.

      Refusal of court to send charges written, without request, on his ■own motion to jury—

      2. It is not error for a trial judge to refuse to send his charge to the jury on their retiring, where there was no request made to reduce it to writing, although such judge had voluntarily reduced such charge to writing, and had read it to the jury.
    Error to the Court of Common Pleas of Mahoning county,.
   Laubie, J.

This is a proceeding upon the part of the railroad company to reverse the judgment of the court below, in an action brought by Bishop to recover for personal injuries sustained by him in a collision on the road of the company., in the state of Pennsylvania. He was a railway postal clerk on one of the colliding trains.

One of the grounds of error is that the court below refused to send its written charge to the jury. There was no request made of the court to reduce its charge to writing, and hence the parties were not entitled to demand, as of right, that it should be sent to the jury, and the court committed no error in refusing to send the charge to the jury, although it had voluntarily reduced it to writing, and read it to the jury.

The main question in the case, which has been very extensively argued and presented to us by counsel for each party, is as to the rights of Bishop while upon the train, under the laws of Pennsylvania.

The plainitff, in his petition, alleges, inter alia, that on the 7th day of December, 1895, and for a long time prior thereto, he was employed by the United States as a postal clerk, and was running as such clerk from the city of Cleveland, O., to the city of Pittsburgh, Pa., and return. That by some agreement, the terms of which are unknown to the plaintiff, and he is unable to set forth a copy of this agreement, the Pittsburgh & Lake Erie Railroad Co. had contracted to carry the mails between the city of Youngstown, O., and the said city of Pittsburgh. Also, for a valuable consideration agreed, and .bound itself by such contract, to carry the plaintiff so that he might discharge the duties which he contracted with said United States government to discharge; and that, by reason of the premises, said plaintiff was a passenger upon said train. That said defendant company owed him the highest degree of care. That on the 7th day of-December, 1895, while he was upon a train of defendant, in the cischarge of his duties, as aforesaid, such train collided near Wampum, Pa., with a freight train, it being a rear end collision, and that he sustained serious and permanent injuries by reason thereof. That this collision had occurred through the negligence and carelessness of the conductor of the freight train, and of the train dispatcher of the defendant’s road.

The allegation in the petition as to the train dispatcher was eliminated from the case by a written withdrawal.entered upon the records upon the part of the plaintiff, and the case was tried solely upon the allegation of negligence of the conductor of the freight train.

In the answer the defendant admits that it is a corporation under the laws of the states of Ohio and Pennsylvania, and that its road extends from Youngstown, O., to the city of Pittsburgh, Pa., and beyond, And admits that on the 7th day of December, 1895, and prior thereto, plaintiff was in the employ of the United States government as a postal clerk, and as such was employed to work on and about a mail car on the defendant’s road, running between Youngstown, O., and Pittsburgh, Pa., and that while he was riding upon said car on said day, as such postal clerk, he was injured by reason of a collision of the engine of his train with the rear end of a freight train standing upon the track north of the passing siding at Wampum.

Further answering, it sets up that the defendant and the government of the United States had entered into a contract by which it agreed to carry the United States .mails from Youngstown, in the state of Ohio, to and from Pittsburgh, in the state of Pennsylvania, and that such contract was made in the state of Pennsylvania. That, under the provision of said contract, the plaintiff was to perform duties for the United States government in and upon the mail car of the defendant. That he entered into such employment, and under and by virtue of the contract of employment with the government of the United States,and under and by virtue of the contract between the United States government and the defendant, he was to perform his duties upon said train between these points in contemplation of the laws of the state of Pennsylvania, and thereby, impliedly, contracted to be amenable to said laws, so far as his rights and remedies, or any of them, while he was being so carried, we^e concerned.

Further, that it was, at the time of entering into the said contract by said plaintiff, with the United States government, and long prior thereto, and still is the statutory law of the state of Pennsylvania, as provided by the act of the general assembly of said state, passed April 4, 1868, that:

“When any person shall sustain personal injury or loss of life, while lawfully engaged or employed on or about the roads, works, depots, and premises of a railroad company, or in or about any train or car therein or thereon, of which said person is not an employe, the right of action in all such cases against the railroad company shall be only such as would exist if such person were an employe; provided this section shall not apply to passengers.”

And the defendant further alleges that the Supreme Court of Pennsylvania, construing this act, in the case of Railway Company v. Price, 96 Pa. St., 206, decided, and such is the law of that state, that a mail agent or postal clerk, as the plaintiff was, under and by virtue of the provisions of that section, was not a passenger, and that under and by virtue of that statute, .he was to be regarded as an employe of the' company, having no more rights than an employe of the company, and under and by virtue of the laws of the state of Pennsylvania,as such employe, he was not entitled to recover for injuries sustained by the negligence of a fellow workman; that a conductor of the train and a postal clerk stood in the relation of fellow servants, and neither could recover for the negligence of the other as against the master.

Plaintiff, in the reply, alleges that the contract was made in the state of Ohio, and governed by the laws of that state; denies that it was made in Pennsylvania, or that he was not entitled lo the rights of a passenger under the laws of that state.

The statute of Pennsylvania was offered in evidenec by the defendant, and the decisions .of the state of Pennsylvania, construing the same and holding that a postal- clerk and a conductor are fellow servants, and for the negligence of whom no recovery could be had against the company.

The case of the Pennsylvania Co. v. Price, which was offered in evidence, does expressly hold that a mail agent or postal clerk is not a passenger within the meaning of the act in question.

The syllabus of that case is:

“The Act of April 4, 1868, provides that when any person shall sustain any personal injuries or loss of life while lawfully engaged or employed on, or about the roads, works, depots, and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employe, the right of action in all such cases against the company shall be only such as would exist if such person were an employe, provided this section shall not apply to passengers; held, that a route or mail agent in the employ of the United States post office department, while traveling on a railroad, in the performance of his duties, is not a passenger, within the meaning of the act.
“A passenger, in the legal sense of the word, is one who travels in some public conveyance, by virtue of a contract, expressed or implied, as the payment of fare, or that which is accepted as an equivalent therefor.
“A mere trespasser, or a person who steals a ride upon a trian, or who is employed thereon, is not a passenger, within the meaning of the act of 1868, nor entitled as such to protection.”

Upon the part of the plaintiff it is claimed that this decision was subsequently modified in the case of Spisak v. The Baltimore & Ohio Railroad Company, 152 Penn. St., 281.

We have examined this case carefully,and we are not able to agree with the contention of counsel in this respect, and cannot see that it in any sense modifies or changes the rule as laid down in the 96th Penn. State, in the Price case, as to a postal clerk.

In the case in the 152 Penn. St., referred to, it was held:

“If the place of an accident, where the person is injured, is clearly and for general purposes the road, works, depot or premises of the railroad company, the person injured is a fellow servant of the employes of the railroad company within the meaning of the act. If he is lawfully engaged or employed on or about them, he is not a passenger.
“If the accident occurs in a place which is not exclusively, but only within a limited and statutory sense, the premises of the company, and the person injured is engaged in work which it is ordinarily the duty of the employes to do, he is a quasi-employe, within the' meaning of the act. But if the work has no relation to railroad work as such, and is connected with the railroad only by irrelevant and immaterial circumstances of locality, the case is not within the statute. ”

And it appears in that case the plaintiff was an employe of the Steel Company, to which the railway company was delivering freight; that the Steel Company owned some switches or tracks upon its own premises, and upon which the railway company delivered cars, and that on such tracks on the premises of the Steel Company, the accident happened. The court distinguished the case' from the Price case because of these facts, the place of the accident not being upon the road or premises of the railway company, and the plaintiff not having been engaged in work ordinarily done by employes of the railway company.

In the opinion of Mr. Justice Mitchell, it is said:

“The words of the act of 1868 are: ‘when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company,’ etc In the first case that arose under the act, Kirby v. The Railroad Company, 76 Pa., 506, this court passed only upon its constitutionality, but the injury to the plaintiff happened on aside track, part of the road and premises of the defendant company. It was clearly within the express words of the act.’’

After quoting some other decisions, he continues:

“Upon the distinction .thus expressed, the cases divide themselves into two classes. „ In the first, the place of the accident is clearly and for general purposes the road, works, depot or premises of the railroad company. In such case it is sufficient if the person injured is lawfully’engaged or employed in or about them, and is not a passenger. To this class belongs Kirby v. The Railroad Company, 76 Pa., 506, already referred to. The other class is where the accident occurs in a place which is not so exclusively and for general purposes, but only within a limited and statutory sense, the premises of the railroad company,
“In this class the nature of the employment at which the party injured was engaged at the time, becomes material. If it is business connected with the railroad in the sense that it is ordinarily the duty of the railroad employes, then while the party .is engaged at it, the statute treats him as a quasi-employe, and puts his rights upon the same basis.”

So that,even where the locality of the accident is not upon the road, works, depots or premises of the defendant company, but is only incidentally connected therewith, if the person be employed in the performance of duty ordinarily done by the railroad employes, he is still to be regarded, within the letter of the act as an employe of the company defendant. In no manner does this case at all affect the question as decided by the Supreme Court in the Price case; and we find it to be established as the law of the state of Pennsylvania, that a route agent upon the cars of a railroad company in that state is not to be regarded as a passenger, but as an employe of the company upon the train. And from what I have already said as to the law of Pennsylvania in regard to the right of recovery for injury occasioned by the negligence of a co-employe, it follows that if the law of' Pennsylvania is to apply to this case, there could be no recovery, as the accident confessedly occurred within the state of Pennsylvania, and while the plaintiff was in the performance of his duties as route agent, by reason of the negligence of a fellow-servant.

But the plaintiff claimed that this contract was entered into in the state of Ohio, and that the law of Pennsylvania was not to be applied, but the law of Ohio, because where-the contract is made in one state, to be performed partly in that state and partly in another state, the rights of the parties are to be determined by the law of the state where the contract is made, as it is - indivisible, and the contract obligations of the parties cannot be permitted to be shifting according to the laws of the various states into which a portion of it may be transferred by reason of the fact that it is agreed to be in part performed in such states. The court did, in fact, so charge the jury. The court said to the jury:

“The first question to which your attention is called, and which it becomes your duty t.o consider and determine, is whether or not, the plaintiff was lawfully upon this train in pursuance of a contract made between the defendant and the United States government in regard to carrying the mail, and the plaintiff, as postal clerk, over its road, or with the plaintiff to carry him over the road., If you find that such contract was made and entered into, and that the same was not wholly to be performed within the state of Pennsylavnia, but was made in Ohio, to be performed in part in the. state of Ohio, or was made outside of the state of Pennsylvania, to be performed in part in the state of Pennsylvania, and part in the state of Ohio, then the plaintiff would not come within the terms and provisions of the act of the general assembly of Pennsylvania, to which your attention is called, and which is set out in the answer filed by the der fendant in this case, and he would be entitled to recover.”

Now,-it is to be observed that there was no evidence to show that the contract was made in the state of Ohio,and indeed, according to the evidence in the case, as shown by the bill of exceptions, it is clear that it was neither made in the state of Ohio, nor in the state of Pennsylvania.

The plaintiff, Bishop, resided in Solon, Ohio, as he stated, all his life, and he had received his commisison originally, or was appointed by the department at Washington, as route agent in-the southern part of this state upon some of the railroads’thereof; that he acted for a number of years in that capacity on more than one road within the state, and finally was transferred to the defendant’s road, and a commission was issued to him to run upon that road, and this was the commission, as shown by the record:

Post Oeeice Department- — -United 'States oe America.
Office of Gen. Sup’t. R. M. S.
To whom it may concern:
Know ye, that the post master general has appointed the bearer hereof, Wilfred W. Bishop, railway postal clerk, on the line of the P., L. E. & W. railroads, which companies are requested to extend facilities of free travel to the holder of this commission between the points named on opposite page, when on duty, and when traveling to and from duty.
If fare is charged, take receipt.
James E. White,
Gen’l Supt. R. M. S., Washington D. C., 189 — . Approved: R. L. Wilson,
Post Master General,

That is the extent of the evidence of the plaintiff, as to any contract being made in the state of Ohio, and that relates, not to the contract between the government and the railroad company, but his own.

On part of defendant it is shown that a contract had been entered into between the railway company and the government for carrying of mail and mail clerks over the line of its road from Pittsburgh to Youngstown and return. That it had been made on application of the company to the department at Washington. And correspondence is shown, at least letters, upon the part of the company, to Thomas J. Brady, Second Assistant Post Master General, at Washington, in reference thereto. And again, that the general offices of the company were in Pittsburgh, in the state of Pennsylvania, From there correspondence was carried on with the post office department at Washington, for the purpose of securing this contract. After the company had received the authority,as stated by Jones in his deposition, from the post master general, or an order to carry the mail, they issued this letter:

“Pittsburgh, Pa., April 28, ’79.
“W. G. Lovett, Esq.,
“Sup’t Railway Service,
“Cleveland, O.
‘•‘Dear Sir: — I have communication from Hon. Thos. Brady, 2d Asst. P. M. Gen.* ordering mail service on our line 1st prox.
“We will have mail car ready and attached to our train leaving here at 8:15 A. M. (Columbus time), on the morning of 1st, prox. I suggest that this car be run through to Cleveland, returning on train leaving Cleveland at 7:15 A. M.
“I will arrange for the delivering of mails at all offices inside the required distance. Will you arrange for those beyond?
“Please let me know if you will be ready, and if you desire any additional arrangements in this connection.
“Yours, very truly,
“W. C. Quincy,
“Gen. Man.”

Now, this was in pursuance of the contract made between the defendant company and the general government, through the post master general, and it was a mere announcement to the local supervisor of the railway service in Ohio, of the fact that the post master general had ordered the carrying of the mail, to begin on the 1st, proximo. It was not the making of a contract with the superintendent of mail service at Cleveland; that had already been done; the post master general’s order had been already given to the company,- and it had no tendency to show that the contract between the government and the railroad company was made in Ohio, but directly the opposite,

The Pittsburgh & Lake Erie Railroad Company had contracted to carry the mails from the city of Youngstown to the city of Pittsburgh; and also for a valuable consideration agreed and bound itself by said contract to carry the plaintiff, so that he might discharge the duties which he contracted with the United States government to discharge. No one in the service of the United States government has any power or. authority to make contracts for the transmission of mails and postal clerks, but the post master general. And it is to be officially noticed that, his office and place of business is in the city of Washington, in the District of Columbia, at the headquarters of the government, as the evidence in the case shows. The court, therefore, committed error in submitting to the jury whether the contract was made in the state of Ohio.

The court further charged:

“Stated differently, if you find that the plaintiff, at the time he received his injury, was lawfully upon the.road of the defendant, under á contract, either with the United States government or the plaintiff himself, to carry him from Cleveland, O., to Pittsburgh, Pa., and return, the contract not being made in Pennsylvania and not to be wholly performed within the state of Pennsylvania, and he was engaged thereon as a postal clerk only, the provisions of that act would not apply, even though he may have been injured whilst upon the road of the defendant. ”

Again:

“If he was lawfully upon it by virtue of a contract made between the defendant and the United States government, or himself, by which he was entitled to passage, asa postal clerk,and was simply so engaged upon that train, and that contract was not made in the state of Pennsylvania, and was not to be wholly performed therein, then he would be entitled to recover for whatever injuries he actually sustained, resulting from the negligence and want of care of the conductor of this freight train with the train upon which plaintiff was riding collided. ”

Two propositions are embraced in this part of the charge. One is, that the plaintiff would be entitled to recover if he had entered into the contract himself with the railroad company to carry him. There was no evidence or claim of that, and the court erred in submitting it to the jury. The other proposition is, if the contract was made outside of the state of Pennsylvania, whether made in Ohio, or not, then the law of Pennsylvania would not govern, and the plaintiff would be entitled to recover if all other facts and circumstances were properly shown to exist.

Now, construe this charge with reference to the evidence, and what does it mean, and what must it have meant to that jury? It means that if the contract between the general government and the railroad company was made neither in Pennsylvania, nor Ohio, but at the seat of the general government, the statutes of Pennsylvania would not apply, nor the law of Pennsylvania, and plaintiff would be entitled to recover, without any inquiry as to what the law of the United States was as to the effect of the contract.

Counsel for the parties presented this case, and their ideas upon it at considerable length, both orally and in writing, and apparently exhausted the books in an attempt to find authorities that would apply to the case. At first we assumed that counsel had found all authorities bearing upon it, and we considered the question in that light. And I must say that I had arrived at the conclusion that there was no prejudicial error in this charge in any respect; that the statute of Pennsylvania had no application to the'case; that it was not within the province of the legislature of the state of Pennsylvania to declare a man not to be entitled to the rights of a passenger in that state if he entered upon the train in another state to be carried free, or under any contract, to which he was a privy, for the payment of his fare.

And upon subsequent examination I find the Supreme Court of the United States has declared that, by the common law, the law of the place where a contract is made governs its nature, obligation and interpretation, unless it appears that the parties, when entering into the contract, clearly manifest a mutual intent to be bound by the law of some other country or state; and the fact that the contract is to be partly performed in another country or state, is not of itself sufficient to establish such intent. Liverpool and Great Western Steam Co. v. Phoenix Insurance Co., 129 U. S., 397, 455, 458, in which the ruléis fully discussed, and the English and American cases examined and commented on; and Cox et al. v. U. S., 6 Peters, 172, approved. In that case it was held that a contract between the United States (by the Navy Department), and private persons, in regard to services tc be performed for the United States, is governed exclusively by the rules of the common law, and not by the statutes of the state were it is to be performed —that it is immaterial where the services are to be performed, in so far as it affects the nature, effect and interpretation of the contract.

I had also assumed that the constitution of the United States protected a citizen thereof,as Bishop was, from having his privileges and immunities interfered with or abridged by any state, or deprived of his life, liberty or property without due process of law.

The first subdivision of the fourteenth amendment of the constitution of the United States provides expressly, that no state shall by law abridge the privileges and immunities of any citizen of the United States, nor shall any state deprive any person of his life, liberty or property, without due process of law; and this, too, although he may be a citizen of such state. This prohibits “any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society. * * * it secures the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice. ” United States v. Crukshank, 92 U, S., 554.

Here, Bishop would be deprived of his right of property in his person, without due process of law, and solely by an arbitrary exercise of the power of government for the especial benefit of a railway corporation.

As the defendant was bound by its contract with the United States to carry the plaintiff from Youngstown to Pittsburgh, I thought it was bound to carry him safely, as a passenger for hire, and that his privileges, or rights, or status as such passenger, could not be abridged or taken from him by the legislature or the courts of Pennsylvania on any pretext whatever; that he was a party to such contract, and had a right to stand upon it.

As illustrative of the last proposition, take the case of Emmitt v. Brophy, 42 Ohio St., where the court held that where a bridge company sold its bridge to the county commissioners, and a party, the principal stockholder to whom the consideration is paid, agreed by bond to pay off all debts and liens against the bridge company, that any creditor or any one holding a lien was entitled to sue upon the contract although his name was not mentioned in it, and although he may not have been known to the parties contracting at the time to be a creditor or lienholder, because he was a privy to such contract, as it was made in part for his benefit. To the same effect is Railway Company v. Keokuk Bridge Co., 131 U. S., 371; 155 U. S., 156.

I do not regard it as at all mitigating against this rule that the contract is principally for the benefit of the party making it. It may be principally for his benefit, but if it is incidentally for the benefit of another, that other is privy to it, and would be entitled to sue upon it, Hendricks v. Lindsay et al., 93 U. S., 149.

Section 4000, Revised Statutes of the U. S., provides:

“Every railway carrying the mail shall carry on any train which may be run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same.”

The government, therefore, pays for the carrying of the person as well as the mail itself — the consideration is in solido. One party agrees to pay.so much money, - and the other party agrees to carry the mails and mail agent. The words “without extra charge therefor,” refers more particularly to the mailable matter directed to be carried than to the person in charge thereof.

Again, section 4005.

“The length of cars required for such post office railway car service shall be determined by the post office department, and all such cars shall be properly fitted up, furnished, warmed and lighted for the accommodation of clerks to accompany and distribute the mails.”

Now, with a contract like that, paying for the carriage of the clerk and providing that certain accommodations shall be furnished by the railway company for his general comfort, that he is not a party to the contract, I think cannot in any sense or reason be maintained.

Supposing the company failed to warm up the car on a zero day, and his health was injured thereby, would such a clerk not have a remedy upon the contract?

But it is useless to discuss this question further, as this court is not-in condition to upset the Supreme Court of the United States. In examining the decisions and reports of the Supreme Court of the United States, I find that the case of the Pennsylvania Railroad Company v. Price, went to that court, and was there decided in conformity to .the holding of the Pennsylvania court — that a postal clerk in cars ■carried under contract with the government is not a passenger. Price v. Pennsylvania R. R. Co,. 113 U. S., 218.

The Syllabus is:

“A person traveling on a railroad in charge of mails, under the provisions of section 4000, Revised Statutes, does not thereby acquire the rights of a passenger, in case he is injured on the railroad through the negligence of the company's servants, ”

Mr. Justice Miller delivered the opinion of the court He recites the facts and continued:

“The plaintiff argues here, and insisted, throughout the progress of the case in the state courts, that by reason of certain laws of the United States as applied to the facts found in the verdict of the jury," the decedent was a passenger, and the Supreme Court erred in holding otherwise.
“These laws are thus cited- in the brief of plaintiff’s counsel:
“Act March 3, 1865, section 8, 13 Stat., 506, provides that for the purpose of assorting and distributing letters, and other matter in railway post offices, the post master general may, from time to time, appoint clerks who shall be paid out of the appropriation for mail transportation.
“Section 4000, Revised Statutes, requires that every railway company carrying the mail shall carry on any train which may run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same.
“We do not think these provisions either aid or govern the construction of the proviso in the Pennslyvania statute.
“The person thus to be carried with mail matter, without extra charge, is no more a passenger because he is in charge of the mail, nor because-no other-compensation is made for his transportation, than if he had no such charge, nor does the fact that he is in the employment of the United States, and the defendant is bound by contract with the government to carry him, affect the question. It would be just the same if the company had contracted with any other person who had charge of freight on the train to carry him without additional compensation.’’

And with that I perfectly agree. If a party makes a contract with a railroad company to transport his freight and his servant, I have understood that the proper holding should be such servant is a passenger; the consideration is paid in his interest and for his benefit; he is a privy to the contract, and entitled to all the rights of a, passenger, so far as being carried safely is concerned. And I cannot comprehend the application made of this doctrine to the case in question, when I consider that the same court had previously held, in Railroad Company v. Lockwood, 17 Wall., 357-384, that a drover traveling on a free pass, for the purpose of taking care of his stock on the train, is a passenger for hire; and in Railroad Co. v. Derby, 14 How., 486, and The Steamboat New World v. King, 16 How., 469-474, that a person lawfully on the cars or boat, riding on invitation of an officer, or on a free pass, is a passenger, and entitled to all the rights and privileges of other passengers, “as resting not only on public policy, but on sound principles of law.”

Justice Miller proceeds:

“The statutes of the United States which authorize this employment and direct this service do not, therefore, make the person so engaged a passenger, or deprive him of that character, in construing the Pennsylvania statute. Nor does it give to persons so employed any right, as against the railroad company, which would not belong to any other person in a similar employment, by others than the United States.
“We are therefore of the opinion that no question of federal authority was involved in the judgment of the Supreme Court of Pennslyvania, and the writ of error is accordingly dismissed. ”

That settles for us the whole question in this case, holding as we do that the contract made with the general govenrment is governed by the law of the United States. And although the point was not examined at any length by that court, and is apparently a first blush decision, we are not in a position to overrule it, and therefore we are compelled to hold it was error for the court in this case to charge that if the contract was made outside of Pennsylvania, the statute of Pennsylvania would not apply; and the ease is reversed and remanded to the court below.

J. P. Wilson, for Plaintiff in Error.

P. B. Murray and Wm. S. Anderson, for Defendant in Error.


text:
    (Sixth Circuit — Lucas Co., Ohio, Circuit Court
    Jan’y. Term, 1897.)
    Before Haynes, Scribner and King, JJ.
    CRITT HOLMES v. THE PENNSYLVANIA COMPANY AND THE COLUMBUS, HOCKING VALLEY & TOLEDO RAILWAY COMPANY.

      Dangerous appliances — One B. B. Co. not obliged to Teeep warning lights for benefit of employes of other B. B. Co. in its yard — What to be shown to hold employer liable for injury—
    Where an employe of one R. R. Co. working in a yard containing different tracks of two railroad companies, while attending to his duties for the railroad by which he was employed, in cross» ing the tracks of the other company in the night time, fell into an ash-pit located there between the track leading to an engine round-house, but where there was no warning light attached, and of which such employe of the other company had no knowl» edge, the one R. R. Co. is not under obligation to keep a warning signal there for the benefit of the employes of the other company, and was not liable for such injury to one of them by falling into such ash-pit. Whether that company however, did not owe some duty to its employe while obliged to pass the tracks ofthe other company,not decided,but if so, the employe must show that the appliance was defective, (2) that the master had notice thereof and (3) that the employe did not know the defect,and did not have equal means of knowledge with his master.

      More danger, more care.

    The fact that the night in question was rainy and misty, and very dark,devolves the duty on the employe to be the more careful.
    Error to the Court of Common Pleas of Lucas coutny.
   King, J.

Mr. Holmes was in the employ of the Pennsylvania Company, who owns a railroad running into this county and having certain tracks and yards. He was employed as a brakeman. He began working for this company in August, 1894, and he worked ujp to the 30th of November, when he was injured. He was employed in the yard, as a switchman, so-called, in coupling and uncoupling cars, and he attended to the yard work generally. This yard is located in the northerly part of the city, on the river bank, and near what is known as the Pennsylvania depot. Mr. Holmes had been in the employ of other railroad companies, and had worked in that capacity for about thirteen years prior to his injury. On the night in question he was directed, by the conductor in charge of a switching train, to run across the yard where they were switching cars, to the west side of it, or — in the language of the switchman, “towards Summit street” — -and swing his lantern to warn the engineer to slack his train or stop, as he had gone far enough. The engineer was not stopping as it was expected he would. From the position that Holmes occupied, the engineer could not see the signal — he would have to go out farther from the train, and the conductor told him to run ¿cross towards Summit street and swing him down. He started to run down in that direction — the direction in which the train was going — and ran along on the track for a few rods, far enough to pass two cars which were there, and then turned, to the left, towards Summit street, and ran off in that direction to give this alarm to the engineer; and, while running, or walking rapidly, he fell into what is known as an “ash-pit.” The ash-pit which is alleged in the petition and shown on the plat, was erected and maintained by the Hocking Yalley Railway Company, which also owned and controlled at least two railroad tracks on that side of the yard; one known as the “dock coal track,” and the other as the “leader,” which ran to a turn table and thus connected with the building in which they stored the engines. The turn-table was perhaps one hundred feet from the ash-pit, and Holmes, as I say, had worked in this yard, three months and a half prior to this injury. On the night in question — -for it was in the night — he had been working .around there and his light had begun to grow dim, and he left his train,and passed across the tracks to a house known-as the “sand-house” — which is situated on the bank,a somewhat steep bank, which rises from that yard up to Summit reet, and at the foot of which rise is the house called the ¡sand-house. He went over into that house to fix his lamp,: and just before he was ordered to give this signal, he had come back from out of the sand-house and passed over the two tracks in question to the track upon which this train was, when the conductor said to him, “Run down there towards Summit street and swing the engineer down;” and he started to do so, and ran down the track in the direction in which, the engineer was going, until he passed these two. cars and then turned to go towards-'the bank. In going to the sand-house to fix his light, and returning as he did, and in going to the sand house and returning at any time, he would pass, necessarily, between the turn-table and the ash-pit, and would leave these objects at about the same distance on either hand. He testifies that he went pretty near tlqe oenter. He testifies further, however, that notwithstanding his experience in the yard,and notwithstanding the fact that he had been over to the sand-house that evening, and on two other occasions to get sand — that he never knew there was an ash-pit at that point until he fell into it and was injured. He testifies that he knew what an ash-pit was; that he had seen them on other roads, and he knew that they were used by railroad companies for the purpose of dropping the ashes from the engines when placed over the ash-pit; that the ash-pit was about the width between the rails of the stack, about three' and one-half feet deep and ■ about the length of a car — which- would make it in the neighborhood of thirty feet long, or more, so that in daylight it would be an obstruction to travel, and would be observable by any person who used his senses

He alleges, as one ground of negligence, that these companies did not keep a light out; but he also alleges that it was the property of the Hocking Valley Company, and, I may say here, therefore no obligation rested upon the Pennsylvania Company to keep that lighted, unless that track and that ash-pit were a part of the tracks which they used in the prosecution of their business. There is no evidence in the record before us that they ever did use that track, or that ash-pit, in the prosecution of their business; so that it may be concluded, on this point, that it was not the duty of the Pennsylvania Company to keep it lighted, and it was not the duty of the Hocking Valley Company to keep it lighted for the benefit of the employes of the Pennsylvania Company. On that point I think there can be no question.

In the progress of the trial in the court of common pleas, when the evidence offered by the plaintiff on his own behalf was closed,the court,on motion of both the railroad companies, defendants, instructed the jury to return a verdict for the defendants. Mr. Holmes prosecutes this petition in error to reverse that action of the court of common pleas. The court based its action upon the ground that the evidence did not show that the Pennsylvania Company used this track and ash-pit, or had any control of it; and it did not show that the plaintiff was an employe of the Columbus, Hocking Valley & Toledo Railway Company, and therefore the Columbus, Hocking Valley & Toledo Company owed him no duty which it had violated.

As to the holding of the court upon the question of the Hocking Valley Company’s liability, we think the court based its ruling upon that point upon the correct ground, and we are not disposed to criticize what the court said on either one of the points; and, we are of opinion that the court did not err in its final conclusion of the case, and we think we are aided in this by reference to another part of the record. The plaintiff himself testifies, upon the subject of his injuries, on pages 15, 16, and 17, of the record, as to how he was injured. In the first place, he said he was in a hurry. He did not say he was walking, or running, but he says he was in a hurry:

‘‘Q. Your lantern was lit? A. Yes, sir.
”Q. Your lantern was burning brightly, wasnt’ it? A. I had just fixed it. -
‘‘Q. It was burning brightly? A. It was burning.”

Then he tells about the two cars, and about going over the elevation. It is shown that one of those tracks was elevated about a foot above the other two.

‘‘Q. In going over that elevation, you didn’t trip — your eyes — you were looking straightahead? A. I suppose I was; yes, and I was watching out for the head-light, to give the engineer a signal.
“Q. You were looking straight ahead, in order to keep from stumbling? A. No, I don’t know as I was; the ground looked all alike—
“Q. Did you go over that elevation sidewise? A. No; I went over frontways.
“Q. With your lantern in your hand? A. In my right hand.
”Q. You were looking directly towards Summit street, were you? A. No, sir; I was watching to see, when I got out over the elevation, was watching the head-light, and I suppose I was swinging my right hand, that way.”

And he gives an illustration of how be was swinging it.

”Q. How far is the ash-pit from this elevated road? A. It is only a few feet.”

And then counsel inquire:

‘‘Q. You say you were looking towards Summit street? A. I didn’t say so.
‘‘Q. You were looking towards your engine, were you not? A. I think I was. ”

And finally he says:

“Q. You were looking north tqwards the engine? A. I was trying to get a signal, to get a response to my signal.
“Q. It is not true that you were looking north, to the engineer? A. I think my head was turned that way.
“Q. Your head was turned north to the engineer? A. Yes, sir,
“Q. Then you went down into the ash-pit, without looking where you were going, and with your eyes north, looking towards the engineer? A. I think that is about the way of it.”

Regardless of any theories of how these companies occupied the yard, we think that testimony shows conclusively that the plaintiff himself was careless, and it does not show any excuse for being careless at that point of time.

There is an argument made here that these tracks were used in common by both these companies. It is not clear, from the record, just what use either company did make of those two extra tracks. It is clear, as I have already stated,that those two tracks belonged to the Hocking Valley Company, who maintained them for their use. The Pennsylvania Company did not seem to have had any use of the ash-pit, turn-table and engine-house, but they were used exclusively by the Hocking Valley Company; however, whether the Pennsylvania Company did not sometimes run over those tracks, is not so clear. There might be some doubt whether the Pennsylvania Company did not own some duty to its employes, even when its employes are on those tracks, which were said to belong to the Hocking Valley Company; but it is evident that the plaintiff does not bring his case within the rule that is laid down upon the subject, to authorize him to recover against the Pennsylvania Company for any neglect on his part. This rule has been stated several times. We refer to the 9th Circuit Court Reports, at page 687 and following, and the 49 Ohio St., page, 607, quoting from “Wood’s Law of Master & Servant,” where it is said:

“The servant, in order to recover for defects in the appliances of the business, is called upon to establish three propositions: 1. That the appliance was defective. 2. That the master had notice thereof, or knowledge, or ought to have had. 3. That the servants did not know of the defect, and had not equal means of knowing with the master.”

There is no doubt here, that, if this was a defect, the master had notice of its existence. And there is no doubt, from the plaintiff’s testimony -in the case, that he did not know of its existence; but that does not dispose of the question, as the court says, he must also show that he did not have equal means with the master of knowing of the defect. This ash-pit was not hidden or secret In the first place it may be stated, that it' is doubtful whether it would be any evidence of negligence at all that that ash-pit was maintained there in the yard. It is clear, from knowledge which the court has outside of this case, that ash-pits are things which railroad companies provide at certain places, and it is clear that they usually provide them where engines are put to be housed, or near some point of that sort, so that before they run in the engine to be housed, or repaired, they clean it out and have some place to drop the ashes under the engine. So we think that it was a necessary thing to have; that it could not be housed in, but it had to have an opening at either end of the track for the cars to go through, According to the undisputed testimony in the record, it was certainly large enough to be seen in the day time, at least.

The plaintiff in error was directed to go and give a warning to the engineer to stop. That did not require of him that he should break his neck, or fall into a well-hole, or run against a switch-stand, or against a building — he was bound to go and do that duty as he would perform any other duty and to watch and look and see where he was going. He had a light and the means in his hand to see where he was going — he had a lantern, in good condition and burning properly, and all he had to do was to hold that light where he stepped, so that he could see. He says it was rainy and misty; that it was very dark for a night of that season of the year. So much the more was the duty devolved upon him to use greater care, if he was proposing to run,or hurry; he must go along in the yard the same as he would go anywhere else where his duty called him, and to take these precautions which men of ordinary care and sense take, to protect themselves from danger. There would be no difficulty in seeing this ash-pit (thirty feet long and four and a half feet wide), if he had been looking. But he swears he was looking elsewhere; he says that he was hurrying forward over these tracks — pitching up and down over the elevated track- — -a foot or eighteen inches high — with his eyes fixed upon the engine, two blocks away, which he was following up and swinging his lantern as he was running. The conductor told him to go over to the bank, towards Summit street, and swing his lantern. What he had to do was to go over there carefully, and when he got over there to swing his lantern —that is what he was directed to do, and not to run headlong into something that he did not expect. So we think that upon that ground, for the reason that he was looking at the engine, as he swears, and was not looking^where he was going, that he clearly contributed to his own injury. He testified to that, and there is no dispute as to what he did, and therefore the court very properly took the case from the jury, and the judgment of the court of common pleas will be affirmed.

Scribner, Waite & Wachenheimer, for Plaintiff in Error.

E. W. Tolerton, Esq., for Pennsylvania Company, Defendant in Error.

King & Tracy, for the Columbus, Hocking Valley & Toledo By. Co.