author: Haynes, J.

text:
    (Sixth Circuit—Wood Co., o., Circuit Court
    April Term, 1895.)
    Before Scribner, Haynes and King, JJ.
    BOARD OF COUNTY COM’RS OF WOOD CO. ET AL. v. ROBERT PARGILLIS.

      Poioer of court, to interfere with public officials or body in the exercise of their special powers — What is a county officer under sec. 1, art. 10 of constitution — Where two bodies are directed by an act of legislature to act together in certain functions, a majority ■ of the total number of both bodies combined necessary to any action.

    1. In the distribution of powers under the constitution of Ohio, certain political and civil powers are vested in certain public bodies, and these bodies, in the exercise of their powers, can not be interfered with by other bodies or the courts. Courts, however, have the power to enjoin when such bodies or officials are proceeding to make illegal contracts, and to some extent to interfere where there is a gross abuse of power. But courts have no power to set their opinion or discretion against that of the body or officials acting within the scope of their powers.
    2. By special act of the legislature, passed February 2, 1893, the legislature of Ohio authorized the building of a new court house for • Wood county. It is provided in section 5 thereof that the judges of the circuit court of the sixth circuit should appoint four freeholders of said county as a “Building Committee, ” to act and vote with the county commissioners in procuring, making and approving plans, estimates and specifications for said court house, in awarding contracts for labor or materials used in building tbe same, and for furnishing said court house when completed. Such building committee wa§ appointed by the circuit court. Held: That the members of such building committee are not “county officers” within the meaning of sec. 1, art. 10, of the constitution, who must be elected, and sec. 5 of the said act of the legislature is not in conflct with the constitution in that regard — What constitutes a “county officer” within the meaning of sec. 1, art. 10, of constitution defined.
    :.3. Under the provisions of the special act of February 2 1893, the county commissioners must [act with the building committee in all matters relating to the building and furnishing of the new court house, and both together forming a body of seven members, the consent of at least four of the whole body is required in favor of any proposition to contract in regard to building and furnishing the new court house.
   Haynes, J.

(orally).

Preliminary to this decision I may be permitted to say That owing to the present condition of my eyesight, I am unable to read authorities, and must deal with the questions in a general way.

In the case of the Board of County Commissioners of Wood County, Ohio, and T. B. Townsend v. Robert Pargillis, which comes to this court on error, a petition in.errror -is filed to reverse the judgment of the court of common pleas wherein an injunction was granted Robert Pargillis, plaintiff below, enjoining the Board of County Commissioners from • entering into a certain contract with a party for the heating of the new court house. ’

The case was heard in the court of common pleas upon a ■ demurrer to the petition, and after overruling the demurrer, •the defendant below not desiring to plead further, judgment • was rendered on that petition for the, plaintiff.

The case presents some difficult and important questions. We have given the arguments of counsel very careful con- \ sideration, and have made a careful examination of the statutes bearing upon these questions, and have arrived at certain conclusions. The conclusions to which the several judges-have arrived at are not the same upon all questions. Upon some of the questions we are a unit, and on other questions the decision will be a decision of a majority of the court.

The first question is the right of the plaintiff, Robert Pargillis, to bring the suit. The suit is brought by the plaintiff for himself and other tax-payers of Wood county, who, he avers, are so numerous that it is impracticable to bring them all into court, and for that reason he claims the right to prosecute this action under section 5008, Revised Statutes.

The position is taken, however, that a suit of this kind can not be maintained under that section of the statutes; that the only suit provided for or allowed under the statutes of' Ohio is a suit under section 1277, by the prosecuting attorney of the county, and if he fails to perform his duty in that respect, that any tax-payer may, under section 1278, make application tó and demand that he proceed to bring suit, and upon his refusal to do so, then the tax-payer himself may proceed in the name 'of the state upon certain terms and conditions. It is argued that this method of proceeding is an exclusive method, and inasmuch as there is no averment in the petition that the prosecuting attorney has ever been called upon, or refused to proceed to bring this action, that therefore the action cannot be maintanied by the present plaintiff. This question is one that is not free from doubt and uncertainty. The general intention, I presume, of the legislature was, that an action of this nature should be brought and prosecuted by the prosecuting attorney for the county, and upon his refusal to do so, that a taxpayer might then come under the' statute and prosecute the suit in the-name of the state of Ohio. That, however, does not decide the question as to whether the taxpayer has not the right under the common law to come into court and invoke the protection of the court in a case of this kind.

This action is brought by the plaintiff, Robert Pargillis, a' resident, property owner and taxpayer of Wood county, to restrain the county commissioners from entering into a certain contract with one T. B. Townsend for the furnishing of a heating apparatus for the heating of the new court house, and it is alleged in general terms that the contract for. heating about to be entered into is more expensive than certain other systems of heating that might be had, and that if the ■county commissioners are allowed to proceed, it will impose larger burdens upon the taxpayers than if the contract had been submitted to the competition of public bidding, and a saving of several thousand dollars would have been made to plaintiff and the other taxpayers of the county if there had been competition.

The petition reads, “The plaintiff, Robert Pargillis, says he is and has been for many years last past a resident and property owner, and taxpayer in Wood county, Ohio.”

That the subject of this action is of common and general interest to all of the taxpayers of said county of Wood, who are so numerous that it is impracticable to bring them all before the court, and for that reason plaintiff prosecutes,this action for the benefit of all as well as for the benefit of himself.

He further says that the defendant, the Board of County Commissioners, is and was at the time of the grievances hereinafter complained of composed of the following persons, to-wit:

Samuel Knight, James Gibson, and Christopher Gundy.

That the defendant, T. B. Townsend, is the contractor engaged by said Board of County Commissioners to build the Wood county court house, now in process of construction by the said Townsend, under contract with the said defendant, the said Board of County Commissioners.

That by the special act of the General Assembly of the .State of Ohio,passed Feburary 2,1893,said Board of County Commissioners was authorized to erect a new court house in-said county, and which said court house is in process of construction, but the construction thereof will not be completed under one year from this date, and probably not within a: longer period.

That by the terms of the said special act of the general assembly, the judges of the circuit court of_ said county were' required to, and did upon the passage thereof, appoint fourcompetent freeholders of said county, to-wit: Earl Merry, Edward B. Beverstock,Frank A. Baldwin and John A. Ault, which building committee was required to act and vote with said board of county commissioners, in procuring, making ■ and approving plans, estimates and specifications for said court house, in awarding contracts for labor and materials used in building the same, and for furnishing said court house when completed, and determining all questions connected therewith until said court house should be completed and furnished according to contracts made and accepted by a majority of said commissioners and of said committee.

That by the terms of said special act, said commissioners-, and committee were and are authorized to advertise for proposals, either for the entire work of erecting said courthouse,' or for furnishing the same at a single job, or to advertise-for proposals for separate portions thereof, and let contracts to the lowest responsible bidder, and to receive and accept bids therefor.

That all cost and- expense of erecting and furnishing said court house is to be paid for by taxation upon the property of plaintiff and other taxpayers of said county.

That the said defendant,the board of county commissioners, in disregard and disobedience of the provisions of said ■special act, have refused to recognize or co-operate with said building committee in or' about any of the matters or things'done by said commissioners and said committee in erecting" or furnishing said court house, but have unlawfully let and entered into contracts for the construction and in furnishing in part, of said court house upon their own motion and responsibilty, and without permitting and having refused to1 permit said committee to act in relation thereto. That on the 26th day of April, 1894, said board of commissioners, without consulting or co-operating with said committee, as aforesaid, but refusing to consult, act or co-operate with said commitee,made and entered into a contract with'said defendant, T. B. Townsend, in which the said Townsend was awarded the job of providing for the heating of said court house, for the sum of nine thousand four hundred dollars, which award was made to the said Townsend without any proposals for bids being submitted to other reputable persons and firms who stood ready and desirous to offer said commissioners terms and propositions leading to a contract, for said heating of said court house, at a much less price than said board of commissioners, by virtue of said contract with said Townsend, agreed to pay therefor.

That the said board of county commissioners -did at no time before the making of said contract with said Townsend, advertise for bids, for the purpose of letting said job for heating said court house, with a view of submitting said contract as required by the specifications to the lowest bidder; but awarded it to said defendant Townsend at a greatly exorbitant sum, to-wit: the sum of nine thousand four hundred dollars, as hereinbefore mentioned, to the prejudice of this plaintiff and all other taxpayers of the county.

Plaintiff is informed and believes, and therefore charges that if said contract had been submitted to the competition of public bidding by the various firms that desired to furnish said heating according to the plans and specifications, a saving of several thousand dollars would thereby have been made to plaintiff and the other taxpayers of this county.

Plaintiff further avers that said contract was made by said board of county commissioners without permitting said building committee to participate in any of their deliberations or acts in reference thereto, and wrongfully awarded said contract to the said Townsend without their knowledge or consent and in violation of their duty which the special act of the Legislature of the State of Ohio in reference to the building of said court house imposed upon them.

That it was the duty of the said board of county commissioners to have awarded the contract for the heating, if they awarded it at all, to the lowest responsible bidder therefor, considering the several elements of price, material, design, and workmanhsip.

That divers persons and firms were at the time said contract was let, able and willing to enter into a valid and binding contract with said board of county commissioners to furnish said heating at a price much lower than that awarded the said Townsend, and of material, workmanship and quality equal, and were ready to give a good and sufficient bond for the faithful performance of said contract if the same should have been awarded to said parties.

That said parties are now ready and willing to make bids for the said heating of said court house if they are permitted to do so.

The said board of county commissioners, in failing to submit said contract to public bidding, and awarding the same to the said defendant Townsend, have been guilty of gross want of or abuse of the discretion required of them in the discharge of their duties as members'of the said board of county commissioners, and which want or abuse of such discretion will,unless the relief hereinafter prayed for be granted, result in great and irreparable damage to the plaintiff and other taxpayers in said county, for which they have no adequate remedy at law.

That the said contract so as aforesaid pretended to be entered into with the said T. B.Townsend was and is unlawful and void,in this:

1st. That said proposal and contract with said Townsend was made without the bid or proposal of the lowest responsible bidder for heating said court house, taking into consideration the price, design, workmanship, material and designs of the several parties who desired to obtain said contract.

2nd. That said contract does not contain,nor is there filed in the office of the said board of county commissioners, any plan or specifications describing or specifying the style of said heating apparatus.

3rd. That said pretended contract was made and entered into with the said Townsend by the said board of county commissioners without permitting said building committee to take any part whatever in awarding or making thereof, or in determining the price to be paid, or the design according to which, or the material of which said heating apparatus is to be constructed, or the character of the workmanship to be expended thereon.

4th. For other reasons, appearing on the face of said contract and proceedings of said board of county commissioners, by and in relation thereto.

Plaintiff further says that unless the relief herein prayed for be granted, the defendant T. B. Townsend will unlawfully proceed to furnish said heating apparatus to said board of county commissioners, by placing the same in the court house now in the process of construction, as hereinbefore mentioned, and said board will proceed to pay therefor out of the funds of the county, the said price agreed upon by said pretended contract, whereby the plaintiff and all other taxpayers of said county will sustain great and irreparable injury.

Plaintiff therefore prays that the defendant T. B. Townsend be enjoined from furnishing said heating apparatus upon said pretended contract herein averred, and that the board of county commissioners be enjoined from receiving or paying for the same under said contract; that said contract be held and declared null and void; that said board of county commissioners be enjoined from making or entering' into any further contract respecting the heating or completing of said court house without the assent or permission of the said building committee,or without first permitting them, to participate in the matter of making and entering into such contracts, and for all proper relief.

Speaking for myself I had been taught or rather brought up to the opinion that an action of this kind could not be-maintained by a taxpayer, unless he appeared in court in the-manner pointed out by the statute — sec. 1278; nevertheless, I am unable to point to any decision in Ohio, nor can I recollect any decision where any court in this state has so decided. Authorities have been produced of other states, and in some of those states such a doctrine has been maintained, and it has been maintained that where a contract is entered into by public officers, and there is supposed to be a violation of the powers or duties or obligations by the officers, that then the authority for interfering is vested in the sovereign power of the state, and it must be invoked by some officer who represents that power.

Decisions may be found, however, that a taxpayer may come into court and invoke the power of the court upon behalf of himself and .other taxpayers, whose rights are threatened to be affected by officers who are supposed to act.

We have discussed the question at considerable length, and we think the question in the present state of affairs is not very important, because if the petition is dismissed on this ground, all that will be necessary to be done is, to make application to the prosecuting attorney, and if he declines to proceed, then the taxpayer will have full power to proceed. So that in one form or another; the question to be decided can quickly be brought before the court, and we have therefore^concluded that we will not sustain any objection to the-right of the plaintiff to sue, and let the case proceed at the present time with the assumption that the plaintiff had the right to bring this action on behalf of himself and his co-taxpayers.

A more weighty question follows that one: The petition goes on to say that ‘ ‘the county commissioners, proceeding in their efforts to erect a new court house, have decided to let to a certain party, one T. B. Townsend, the contract for heating the building- when completed, and the petition sets forth that on the 26th day of April, 1894, said board of county commissioners, without consulting or co-operating with said committee as aforesaid, but refusing to consult, act or co-operate with said committee, made and entered into a contract with the said defendant, T. B. Townsend, in which the said Townsend was awarded the job of providing for the heating of said court house, for the sum of nine thousand four hundred dollars, which award was made to the said Townsend without any proposal for bids being submitted to other reputable persons and firms who stood ready and desirous to offer said commissioners terms and propositions leading to a contract for said heating of said court house at a much less price than said board of county commissioners by virtue of said contract with said Townsend agreed to pay therefor. That the said board of county commissioners did at no time, before making said contract with said Townsend, advertise for bids, for the purpose of letting said job for heating said court house with a view of submitting said contract, as required by the specifications, to the lowest bidder; but awarded it to the said Townsend at a greatly exorbitant sum,to-wit: the sum of nine thousand four hundred dollars as hereinbefore mentioned, to the prejudice of this plaintiff and all other taxpayers in said county.

“Plaintiff is informed and believes,and therefore charges, that if said contract had been submitted to the competition of public bidding by the various firms that desired to furnish said heating, according to the plans and specifications, a saving of several thousand dollars would thereby have been made to plaintiff and other taxpayers of this county.’ ’

During the argument, the question was propounded to counsel more than once by the court whether there was any charge of fraud on the part of the county commissioners making the contract, and the reply was, there is not, and it is true that there is no charge of fraud made, or that the board of county commissioners acted corruptly or fraudulently in the performance of its duty.

It is said there were no plans or bids made or competition allowed in procuring this heating apparatus, and that other parties stood ready and were desirous of furnishing just as good a heating apparatus as Mr. Townsend, and at a much less price. Now, it will be observed that the petition nowhere alleges that other parties stand ready to bid or to offer to bid for the use of the same kind of heating apparatus, and put'in the same system of heating that is proposed by Mr. Townsend, and which has been accepted by the county commissioners, and we take it from the averments in the petition and the knowledge we have of public affairs generally, that the averment simply amounts to this: that he, Townsend, has a system of heating that is, perhaps, patented and exclusively his own, and cannot be used by any parties without his consent, and there are other parties who have systems of heating which they say are equal in merit to that of Townsend; that the material they will furnish, and their system of heating is equally as good as Mr. Townsend’s; that is to say, in our judgment there is a contest here between the parties who have different systems of heating, each claiming that his system is as good as that adopted by the county commissioners, and claiming that the county commissioners should have taken his system, because he would have put it in at a less price than Townsend had offered to do it for; and that is about the sum and substance of the averments so far as they appear in the petition.

Well, now, it should be remembered that in the distribution of powers under the constitution of the state of Ohio, that certain political and civil powers are vested in certain public bodies; they commence with road district supervisors, township trustees, county commissioners, and in municipal corporations certain officers, and to them is committed by the constitution and the laws of the state the authority, duty and power of carrying out certain governmental functions like the maintenance of roads, erection of public buildings and various other matters and things that are familiar to us all, and which are necessary for the convenience, well-fare and prosperity of the people of the state.

Those powers are vested in those bodies, and they are not vested in other bodies; that is to say: we have an executive authority vested in the governor, legislative authority vested in the general assembly, judicial authority vested in the judges of our courts; these are specific and distinct. The powers granted to the county commissioners are not granted to the various courts of the state; nor the powers granted to the courts granted to the county commissioners.

Courts are to exercise certain judicial powers, and generally speaking they are well known and understood ;and county commissioners have certain powers, and those powers are vested in no other body. The courts cannot reach or control them in the exercise of the power conferred upon them, as I understand the law, unless by some act the commissioners have brought themselves within the judicial cognizance of the courts, as for instance in matters of fraud.

The courts have a right under the statute where officials are proceeding to make an illegal contract, to interfere and enjoin. Possibly they have the right to some extent to interfere where there is a gross abuse of power; but we fail to see any allegation in the petition that brings the commissioners within either the equity or statutory jurisdiction of the court in that regard.

The commissioners have acted apparently in good faith within the discretion conferred upon them by the statutes.

Were we to interfere here, it would simply be opposing our opinion and discretion against the discretion and opinion of the commissioners, and not by the exercise of any jurisdiction conferred upon the court.

It is said here that the county commissioners are acting illegally in this matter,in that they are proceeding to award the contract without advertising for bids, without calling for competition, and without making certain specifications,plans •and drawings. •

We have examined|the sections of the statute 794 and 795, and the others to which we^have been referred, and are unable to come to the conclusion that those statutes apply to this contract or this work, and we cannot therefore, as at present informed, interfere with the action of the county ■commissioners in this regard.

There lies beyond the above another and very grave question, and one upon which we have not been able to arrive at the same conclusion; and that is, whether the county commissioners could alone enter into a contract with this party for this work, or whether there should not have not been the intervention of the building committee as provided by the special act under which the county commissioners are authorized to proceed in the erection of this new court house. It is averred in the petition and admitted by the demurrers that the committee was appointed by the body authorized to make the appointment;.that the building committee accepted the appointment, and offered to meet and act with the county ■commissioners, and that the county commissioners refused to recognize them in regard to the letting or making of the -contracts which were to be made for the building and furnishing of the new court house.

This question is a question of some difficulty; it is an important and weighty question. The one thing that this court has to do, is to examine the statute and see what its terms are, and to declare whether its provisions are within the legislative power of the general assembly. Second: Whether they in any manner contravene any of the provisions of the’constitution of the state of Ohio.

With the policy of the law or the wisdom of the legislature in passing the law, this court has nothing to do, but it should be noted in the commencement that the right of the general assembly to pass local or special acts authorizing the building of a new court house in particular counties in this state has been established by the Supreme Court.

Speaking for myself, if there was any question as to the constitutionality of a statute of this kind, I should have predicated its unconstitutionality, first, upon the clause of the constitution that all laws of a general nature should have a uniform operation throughout the state, and that the law must.be a general, and not a local one.

We must stand first, upon the proposition that the legislature had the right to pass the special act to build the court house, and to authorize the issuing of bonds to raise the necessary funds for paying for the same.

Now, it is said this law is not binding upon the county commissioners, because many of its provisions are different from those that are found in the general statute providing for the erecting of court houses. It is true that this statute is different in some respects from the general statute. The general statute provides that no board of county commissioners shall proceed to erect any court'house that shall cost more than $10,000.00 unless the question has first been submitted to the people, and has been approved by a majority of the voters; but the very first thing we find in this special statute is, that the county commissioners are authorized to build a court house to cost not to exceed two hundred thous- .and dollars without submitting the question to a vote of the people of the county. Then in the seventh section of the act it is provided that “said commissioners and committee may in their discretion advertise for proposals for the entire work as á single job, or separate portions thereof, to the lowest responsible bidder, and receive and accept bids therefor.” Now, the general statute provides that there shall be plans and specifications drawn, and bids shall be advertised for separate portions of the work, and that contractors shall be permitted to bid for those separate departments without bidding for the same as a whole, and provides the method and manner by which the county commissioners are to ascertain the results and finally adopt that which shall be the lowest bid, for the whole.

Now, the county commissioners are allowed to depart from the general statute, and we see no reason why it was not competent for the legislature to authorize the countjr commissioners to depart from the general statute in regard to these details as fully as it might authorize them to depart from the statute that required the question of building 'shall be submitted to a vote of the people before a court house shall be built; so that upon the point made by the defendant below, that there has been a departure from the general statute, a majority of the court see no legal objection.

I come now to what is the final and important question in the case, and that is, the provision of the special act relating to the appointment of the “building committee,” to use the words of the statute.

The second section of the act provides:

“To carry out the provisions of this act, said commissioners are hereby authorized, by taxation upon the property in said county subject to taxation, to raise the amount necessary for the purpose, not exceeding the sum above named. And in anticipation of the collection of such taxes said commissioners shall have power to issue the' bonds of said county with interest coupons attached thereto, interest payable semi-annually in sums of not less than five hundred dollars, principal and interest payable at the office of the treasurer of said county, or at such other place as may be designated in the bonds; said bonds to be due and payable at such times as such commissioners may in their discretion deem for the best interest of the said county; provided that none of said bonds shall be due and payable at a longer period than twenty years from their date; and provided futher, that the aggregate of the principal of said bonds shall not exceed the sum of two hundred thousand dollars; said bonds to bear a rate of interest not exceeding six per centum per annum, and to be sold for not less than their par value.”

Now, that refers to the county commissioners, and what they have the power to do; and no one else has the right to interfere with them.

Section 8 provides that certain bonds shall be issued: Said bonds shall be issued and signed by said commisisoners, and countersigned by the county auditor, who shall keep and preserve a record of the bonds so issued, and said bonds shall be numbered consecutively and made negotiable.”

Section 4 provides: “Said commissioners shall annually hereafter, at their June session, levy such an amount of taxes upon the tax duplicate of the county as shall be necessary to pay the accruing interest upon said bonds, and such part of the principal thereof as falls due each year until said indebtedness is fully discharged. Said commissioners are hereby authorized and impowered to purchase any of said bonds at an earlier period than their maturity,provided a surplus fund may be on hand applicable to that purpose.”

Now, we have,first the authority, and secondly, the means.

Then section 5 points out the way: ‘ Upon the passage of this act there shall be appointed by the judges of the circuit court of said county, four competent freeholders thereof, not more than two of whom shall be members of the same political party, to be known as the ‘building committee,’who shall hold their office for two years, or until said court house is completed, unless the court shall sooner remove them. They are hereby authorized to act and vote with said commissioners in procuring, making and approving plans, estimates and specifications for said court house; in awarding contracts for labor and materials used in building the same, and for furnishing said court house when completed, and in determining all questions in connection therewith, until it shall be completed, and furnished according to contracts, and accepted by a majority of said commissioners and said committee; and said judges are authorized to fill any vacancy arising in said committee from any cause, should they deem it necessary and advisable so to do.”

Now, it is urged in argument that this section of the act is miconstitutional; that it contravenes the first and second sections of article 10 -of the constitution of 1851, in that the. members of this committee are county officers, spoken of as public officers, and they must be elected by a majority of the votes of the county.

Section 1, of article 10, provides: “The general assembly shall provide by law,for the election of such county and township officers as may be necessary.”

Section 4, of article 10, provides that “Township officers shall be elected by the electors of each township, at such-time, in such manner, and such term not exceeding three j'ears, as may be provided by law;” and then there is a provision that officers shall hold their offices until their successors are elected and qualified.

Th'e only case that I think we have been referred "to in regard to the question of officers, and a definition of the word “officers,” is that of The State ex rel.v.Brennan,in the 49th Ohio St., commencing at page 33. In that case there is a discussion, and perhaps a definition of what is meant by the word ‘' officer, ’ ’ as used in that article of the constitution; and without going through that decision or reading and discussing it, it is, perhaps, sufficient for me to say that in the opinion of a majority of the court, this “building committee” do not possess the qualifications, nor have they the character of public officers; that they are in fact what they are denominated, a committee, or commission, for the purpose of acting with the county commissioners, and of voting with them upon certain questions in relation to the building of the court house. While they exercise powers that are exercised by public officers, they do not have that continuity of office which it seems to us is necessary to constitute and make them public officers.

They are appointed for a definite purpose, and when that purpose is carried out, and that duty performed, their rights and duties terminate.

If one of them dies there is no compulsion on the part of any one to appoint another; the circuit court can appoint another, but they may decline to do so.

They are not a body which is required to continue in office with succession; to hold their offices until their successors are elected and qualified, or to continue on from time to time for the purpose of carrying out the general governmental duties of the county, and a majority of the court think they do not come within the class enumerated in section l,of article 10, of the constitution,which reads: “The general assembly shall provide. by law for the election of such county and township officers as may be necessary,” and for that reason a majority of the court are of the opinion that the general assembly was not prohibited from passing this law, and that section 5 of the special act is not inimical to the constitution.

Considerable discussion is had as to the manner in which this power should be exercised, and while it is not necessary for us to pass upon that question, I desire to call the attention of persons who may be interested to the case of Thomas Brophy v. Fannie Landman, in 28 Ohio St., at page 542. It seems that at one time in the history of the government of the city of Toledo we had a statute that provided for a board of city improvements. The statute provided for the election of three commissioners, who should hold their office for a certain period; they were called the board of commissioners, and in connection with the city engineer and the mayor of the city, they constituted the board of improvements, and before any street could be improved, it was required that the ordinance for the improvement should be first passed upon by this board of improvements, and recommended by them. In short, no public improvement could be made, as was held by the Supreme Court, except as the board of improvements authorized the same. An application was made to improve Elm street, and it was improved. Mrs. Landman was the owner of property on that street, and when she was assessed, objection was made to the whole assessment on the ground that the improvement was never passed upon by the board of improvements. It appeared by the records that it had been before the board, that there was but one commissioner present with the mayor and engineer; the mayor and city engineer voted for, and the commissioner against the improvement, and it was declared carried, and the street improved. The Supreme Court held with Mrs. Landman, that the improvement was illegal for that the board of improvements had not passed upon it.

Parker & Fries, for plaintiffs in error.

Cole & Chase, F. A. Baldwin and James O. Troup, for defendant in error.

You will find in the opinion that the court say: “We do not now decide that it is impossible for three of this board to transact its bsuiness, but whatever number is present at a meeting, in order to make a valid recommendation in • the matter of public improvement, it is necessary that there should be at least three votes in its favor. That is to say, the mayor and the city engineer might vote, but they must have one of the commissioners to vote as they do in order to make the necessary majority.”

We think that in the case at bar, that perhaps a majority of the board should have met, being seven; and that there should have been at least a vote of four in favor of any proposition of contract, and that before any contract should be let or signed by the board, it should be approved by a vote of at least four of that body, and because of the showing in this petition that this contract in this case has never been approved by a majority of the seven members of this board, we hold that the county commissioners have not the power or the authority to enter into this contract, and for that reason the"judgment of the court of common pleas will be affirmed.

Judge King dissents.


source: Caselaw Access Project

author: Scribner, J.

license: Public Domain

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Scribner, Haynes and King, JJ.
    FRANK E. SEAGRAVE v. WM. O. HALL ET AL.

      Authority of court, after jury has retired to deliberate upon their verdict, to further instruct the jury in the absence of parties and counsel, and without attempt to notify them. — It is a clear violation of the duty of the court and of the rights of the parties, to instruct the jury in the manner in which they were instructed by the court in this case, at the bar of the court, without some effort being made to get notice to counsel in order that they might be present and protect, so far as they might deem it necessary to do so, the rights of their clients in whatever communication might be made to the jury by the court upon that occasion.' — Sec. 5191, Rev. Stat., considered and authorities reviewed.

      Motion for neto trial — Second motion filed after three days’ elapsed, on grounds not within knowledge of counsel within three days after verdict — The court doubts whether the three days’ limitation for filing motion for new trial applies where the knowledge of the matter complained of comes to the party complaining after the expiration of the three days from the date of the rendition of the verdict, in the absence of laches on his part.

      When motion for new trial not required — Where the party claims that the verdict is against the evidence, or not sustained by sufficient evidence, there it is necessary that there should be a motion for a new trial; but when the party bases the exception upon the ruling of the court during the progress of the trial, or to the action of the court in its charge to the jury, in giving instructions or refusing instructions requested, exceptions being duly taken, no motion for new trial is required.

      Amendment, more than three days after verdict, of motion for neio trial previously filed. — Sec. 5114, Rev. Stat. — Under the broad power of amendment afforded by the statute, it is competent to amend more than three days after verdict the original motion for a new trial filed within the proper time, by adding as an additional assignment and ground of the motion, new matter complained of as error.
   Scribner, J.

(orally).

The original action in tbis case was brought by the defendants in error against the plaintiff in error to recover a sum' of money alleged to be due to the defendants from the plaintiff. The action was regularly tried to a jury in the court of common pleas, and, at the conclusion of' the trial it appears that the- jury retired to consider their verdict.

This was on the 16th of May, 1893. At some time during the day following — which was the 17th of May as the record shows, at 1:30 o’clock P. M., the jury being in court and not having yet arrived at a verdict, the court, in the absence of all the parties, and also in the absence of all the counsel engaged in the cause, proceeded further to instruct said jury, and did instruct them as follows:

‘ ‘ Gentlemen: — As you probably understand, the verdict of a jury is the opinion of twelve men, and no less a number. As the court remarked to you at the outset of this trial, on the trial of this case which has been submitted to you, you should reserve your opinion until you retire to your jury room and deliberate together. Your opinion should be the opinion of all. It is better not to make up a positive judgment or conclusion in the case so as to be fixed and unchangeable, until after you have heard from your associates and heard all that can be urged in the case, in your discussion. Now, of course, no man can change his opinion unless he is convinced; but he should not settle down upon an opinion, fix it, and hold it stubbornly as one that you will not change; but if you cannot, why, of course you cannot; but where there are several or a number of the jury, quite a majority, of one opinion, and a few of them have an opposite or different opinion, it is well, perhaps, for the few to examine their opinion very carefully and look into the ground of it, hear all that may be urged on the other side, and if you can see reason to change it, change it. Go according to the best reasons that you are capable of. Plear the reasons of your associates, -fairly and reasonably apply them, look into the evidence. See whether or not, fairly and reasonably, a different conclusion can be arrived at from the one that you have formed — on the whole.
“I didn’t ask you, Mr. Foreman, whether you disagreed on a matter of fact or a matter of law ?

The Foreman: — “It is a matter of fact, your Honor.

The Court: — -“That is for the jury. You must say, on all the evidence, how it is. It is important when cases are tried, as this has been, and as all cases should be, fairly and carefully, with the labor and thought and expense to the parties and to the public — because these trials are expensive to the public — I say it is important that one trial should end the case, if it fairly and reasonably can.

“Now, I submit these instructions to you and ask you to deliberate further on your verdict. You may retire and see what result you can reach. ’ ’

And the bill of exceptions further shows:

“Whereupon said jury again retired to their room to further consider their verdict, and thereafter and on the same day returned into court with their verdict, which verdict was in favor of the plaintiff and against the defendant, as shown by the verdict returned, signed by the foreman of said jury.
‘ ‘ And thereupon, and within three days after the rendition of said verdict, said defendant, by his counsel, filed his motion in writing to set aside said verdict, on the grounds and for the reasons therein stated, and praying for a new trial in said cause. ”

This motion, which is found among the files constituting a part of the record, appears by the indorsement thereon to have been filed on the 17th of May, 1893 — the same day upon which the verdict of the jury was returned. The record further shows:

“That thereafter and before the hearing of said motion before the court, and on the 9th day of June, 1893, said defendant, by his attorneys, came and filed his additional motion in said cause to set aside said verdict and grant him a ne.w trial thereon, for further and additional reasons therein set forth, which said motion, in writing, was as follows:”

And here appears the second motion for a new trial, the grounds assigned being the action of the court in instructing the jury, or expressing to the jury the advice shown in the instructions given, which has just been • read from the record. And it is alleged in that motion, also, that the court erred in its instructions to the jury: “To which the said defendant by his counsel excepted at once upon obtaining 'knowledge that such instructions had been given,” in this:

“Irregularity and abuse of discretion in the proceedings of the court herein, by which the defendant was prevented from having a fair trial, in that the court, after having given its charge to the jury, and after the jury had retired to consider its verdict, before it had rendered the verdict herein, and in the absence of the defendant and his counsel, and without giving or attempting to give any notice to said defendant or his counsel, or to procure the ■ attendance of either, gave further instructions to said jury.”

It abundantly appears from the bill of exceptions and the record of the case, that neither of the parties was present on the occasion when the presiding judge gave the instructions to the jury, or expressed to the jury the advice which appears on the record as shown herein; neither of the parties and neither of the counsel was present; and it fairly appears that they had no notice of what had taken place until several days after the occurrence, and, so far as the record shows, no attempt was made to advise the counsel or either of the parties of what the presiding judge proposed to do, except as shown in this affidavit of the court bailiff:

“State of Ohio, Lucas County, ss:
“Orrin S. Whitten, being first duly sworn, says that he now is, and has been for the past three years, the bailiff in Judge Harmon’s court, and during all of said time, under instructions received from said court, it has invariably been his rule to notify counsel engaged in a cause, after a jury have retired for deliberation, if the court intended to give them further instructions. Affiant says that he was present during the trial of William O. Hall, Admr., et al. v. Frank E. Seagrave, and had charge of the jury after it retired for verdict; he remembers that the court further instructed the jury in the absence of defendant and his counsel; but before said jury were thus instructed, he was directed by the court to telephone counsel in the case, and to the best of his knowledge, he did so.”

The statement of the bailiff in this affidavit is that he was instructed to telephone the counsel of what was about to take place,and,to the best of his knowledge, he did this; but this does not establish that any such notice was given to the counsel, and the record shows that counsel were present in the city and that no such notice was received by them, or by either of them, upon that occasion.

As the record stands it appears satisfactorily to us, that we cannot find that either of the parties, or their counsel, had notice of the action of the court in giving the jury further instructions, as was done upon the 17th of May, the day upon which the verdict was rendered; and all the testimony taken together satisfies us that no such notice was given. The affidavit of the bailiff is very unsatisfactory in its character, and cannot overcome the other evidence upon the subject. Upon these facts the question arises as to whether or not the court erred in giving instructions to the jury after they had been engaged in the consideration of the case for several hours, without seeing to it that any attempt was made to notify counsel of what the presiding judge proposed to do. Upon this subject we have some cases in our own state to which I will briefly call attention.

The case of Campbell v. Beckett, 8 Ohio St. 211, cited in the argument, holds this:

“It is error for a judge, during a recess of his court, in the absence of the party and his counsel, and without notice to them, to give instructions to the jury to whom the case has been submitted.”

The facts in that case show that while the jury were out, and the next morning after they had gone out, as the report ■says:

“On the next morning, about nine o’clock and during the recess of the court, the jury still failing to agree, again requested further instruction in the case, whereupon the judge appeared before them in the court room, and in the absence of botli parties and their counsel, and without notice to either, instructed the jury upon a question of law materially affecting the rights of the plaintiff; and the jury again retired, and after further consultation, returned a verdict for the defendant.; ’ •

Judge Sutliff, who delivered the opinion of the court, in the course of his opinion, says:

“It is provided by our code, section 2(5(5, that, upon the trial of a cause before a jury, either party may request instructions to the jury on points of law, which shall be given or refused by the court, etc. It is also provided by sec. 270 of the code that, after the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court, where the information upon the point of law shall be given, and the court may give its recollection as to the testimony, on the point in dispute, in the presence of, or after notice to, the parties .or their counsel. ’!

The learned judge then proceeds to express, in strong, clear terms, the view of the court on the-question presented, and states as the conclusion of the court that the presiding judge erred in giving the jury instructions upon matters of law upon which they asked information, during the absence of counsel. The' plaintiff says in regard to this case, that it seems that these instructions were given during the recess of the court and at a time when the parties could hardly be expected to be present, and when it could scarcely be said to be their duty to be present to look after the proper progress and consideration of the case. But we think that does not make any essential or material difference with the rule laid down.

In the 13 Ohio St. p. 1, in the case of Preston v. Bowers, we find the following as a part of the syllabus:

“The jury having retired to consider of their verdict, and afterwards coming into court, during its regular session in tlie daytime, and asking further instructions, and parties and their counsel being loudly called at the door, it is not error for the court to further instruct the jury in the absence of a party or his counsel. ’

Here it would seem that the court was in session when the jury came in, and the parties were called at the door and failed to respond, and the Supreme Court held that under those circumstances, the court did not err.. The court in the opinion (p. 14) say:

“Under the circumstances disclosed in the bill of .excep- • tions, there was no impropriety and no error in the fact that the court, at the request of the jury, gave them further instructions in the absence of plaintiff in error and his counsel.”

The same ruling is made in the case reported in 10 Ohio St., cited by the court in 13 Ohio St. The counsel were called, but failed to respond. A'reasonable effort was made to notify them, but they did not come into court.

A case was cited from 1 Disney, 327 and 337, where the Superior Court of Cincinnati held :

“A court is not required to send for absent parties or their attorneys, whenever it may become necessary to instruct or re-instruct the jury upon questions of law.”

The court say, in the opinion (and the instruction complained of was given in the absence of and without notice to the counsel of the plaintiff):

“It is claimed that the provision of the code which undoubtedly requires the presence of the counsel, or notice to him when the court states its recollection as to the testimony, equally applies to an instruction as to any matter of law. We do not think that this view can be sustained either upon reason or the language of. the code. It is the duty of the court to inform the jury upon a point of law, and by the •statute it is made imperative. . The court is not bound to give its recollection as to the testimony, though requested by the jury. It- may do so,- but this must be done in the presence of or after notice to the parties or their counsel.”'

Here the distinction is taken in the right of the court to instruct the jury upon questions of law and upon a matter of fact, and the court holds that the court may instruct the jury upon a question of law,but it may not instruct the jury upon a matter of fact, in the absence of counsel, unless opportunity is given counsel to be present.

Sec. 5194 of the statute regulates this matter, so far as the statute undertakes to regulate it:

“After the jurors have retired for deliberation, if there ‘be a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court, where the information upon the matter of law shall be given; and the court may give its recollection as to the testimony on the point in dispute, in the presence of or after notice to, the parties or their counsel.”

It may be remarked in this connection that, whatever may have been the instructions of the court, it did not instruct them upon any matter of law arising in the case, unless the course of conduct to be observed by the jury in attempting to' reconcile their differences or adjust their views as to the evidence in the case so as to harmonize them and come to a conclusion that should express the unanimous verdict of the jury shall be considered a matter of law. The jury were instructed that, without surrendering their views, they should endeavor to reconcile their differences— their diverse views of the testimony which had been given in the case. We hardly regard this as an instruction to the jury upon a question of law applicable to the facts proved in the case itself: it is, in some sense, an admonition to the jury of their duty in endeavoring to reconcile conflicting views as to the effect to be given to the testimony in the case.

Paragraph 7 of sec. 5190, has application to the question arising here:

“The court, after the argument is concluded, shall,before proceeding with other business, charge the jury; any charge shall be reduced to writing by the court if either party, before the argument to the jury is commenced, request it; a charge or instruction, when so written and given, shall not be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on file with the papers in the case.

Upon this provision the court undertook very carefully to charge concerning the rights of the parties, and subsequently, it seems, they retired to their room to consider of their verdict. Upon the question of the power of the court to interview the jury without notice to the parties, reference may also be made to cases reported in 51 Howard’s Reports; 51 N. Y. 558; 11 Bulletin, 225. On the part of defendant in error, there was cited, in argument, a case reported in 42 Indiana, 222, which considers somewhat the power of the court to instruct the jury upon their duty to harmonize their views; a case in 48 N. J. 607, which holds, very positively, that the court may send for the jury without notification to counsel in order to give them further instructions; and also to a case in 26 Wisconsin,195, to the same effect, and a case in the Superior Court Reports, page 36, in which the same view is entertained as in the 1st of Disney before cited; 50 Georgia, 53; 81 Alabama, 335. These cases are cited by defendant in error.

A case in 36 Hun, 164, holds with the defendant in error on the main proposition; but the learned judge who delivered the opinion says, referring to the opinion in 8 Ohio St., which I have noticed:

“The cases in Ohio of Campbell, v. Beckett, 8 Ohio St. 211, and Kirk v. State, 14 Ohio, 511, arose under a statute providing that additional instructions shall only be given in the presence of,or after notice to the parties or their counsel."

And that court gives as a reason for disregarding the doctrine stated in the Ohio courts, the fact that those courts place stress in their decisions upon the express provision of the statute of the state upon that subject, and the 'judge says:

‘ ‘ There is no statute or rule of practice in this state which prohibits the court in civil cases from instructing the juy in the absence of counsel.”

On the construction given to our code' by the Superior Court of Cincinnati, there is nothing in this provision of the statute to which the New York court refers, that would make it necessary to call in counsel where instructions are given upon questions of law. The Cincinnati court holds that this is only necessary when instructions are given relating to questions of fact.

We have come to the conclusion, after a very careful examination of all these cases, and spending more time, perhaps, on them than was necessary, that it was a clear violation of the duty of the court and of the rights of the parties, to instruct the jury in the manner in which they were instructed by the court, when they appeared on the 17th of May, 1898, at the bar of the court, without some effort having been made to get notice to counsel, in order that they might be present and protect, so fai; as they might deem it necessary to do so, the rights of their clients, in whatever communication might be made to the jury by the court upon that occasion.

A question is made in the case, as to whether the second motion for a new trial, which was filed on the 9th of June, 1893 — -the- verdict having been rendered on the 17th of May, 1893 — was filed in time. The statute provides, sec. 5307:

‘ ‘ The application for a new trial must be made at the term the verdict, report or decision is rendered; and, except for the cause of newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be made within three days after the verdict or decision is rendered, unless such party is unavoidably prevented from filing the same within such time. ” ■ ■

Section 5309 provides for an application for a new trial after adjournment. This application was made during the term at which the verdict was rendered. The first motion for a new trial was filed within three days after the return of the verdict. At the time that motion was filed the counsel and parties were ignorant of the fact that further instructions had been given to the jury by the court on the day when the verdict was rendered. That motion having been filed within due time, the matter passed along until the 9th of June, when the party defendant in the action and his counsel, having learned of the proceeding complained thereof — the action of the court to which objection was made — filed what is termed a second motion for a new trial, alleging as the .ground of this motion the irregularity in the action of the court in instructing the jury upon the 17th of May, without notice to the parties or their counsel. It appears in the record of the case that the party defendant in the proceeding,Mr. Seagrave, had obtained information of the action of the •court there complained of, more than three days before the second motion for a new trial was actually made,but after the expiration of more than three days from the date of the verdict. It appears in the case, however, that at the time counsel for defendant was out of the city, and that promptly upon his return the motion was filed. We have much doubt if, under the circumstances, the statute making the limitation applies, where knowledege of the matter complained of comes to the party complaining after the expiration of three days from the date of the rendition of the verdict, in the •absence of laches on his part. But, however this may be, if the court erred in respect to the matter complained of, as to that, no motion for a new trial was necessary. It does not matter, therefore, when it was filed.

In the case of William Earp, Supervisor, etc., v. R. R. Co., 12 Ohio St. 621, the court holds: “The ouly question reserved in this case is whether a party who, on the 'trial of an action, takes exceptions to the decisions of the court upon the admission of testimony, and to the charge of the court to the jury, and has those exceptions reduced to writing during the term and signed by the judge, may allege error in a petition filed in the district court, without having also made a motion in the court of common pleas for a new trial on the ground of : error of law occurring at the trial and excepted to by the party making the application. ’ We think that he may. The right of exception secured by the code, section 290, etc., does not depend on the exercise of the right to move for a new trial, secured by the code, sec. 297, etc.”

On this question see 26 Ohio St. p. T; 24 Ohio St. 133.

The rule is, as we understand it, that where a party places his ground of complaint upon an alleged error of. the court in overruling his motion for a new trial for the reason that the verdict is against the evidence, is not sustained by sufficient evidence,that in such case it is necessary that there should be a motion for a new trial; but when the party bases his exception upon the ruling of the court during the progress of the tiral,or to the action of the court in its charge to the jury, in the giving or refusing instructions, exceptions having been duly taken, that there no motion for a new trial is necessary. This has been the established course of practice in this court since we have had our attention called to the question. I am not speaking particularly of the necessity for an exception to the action of the court, but to the necessity for a motion for a new trial in order that a party may avail himself of the exception which he has taken to the judgment of the court. Here, the matter that we are considering relates to the necessity of a motion for a new trial and when it should be filed. We think that the action of the court in its instructions to the jury in this case was erroneous, and as it appears according to the bill of exceptions and upon the record that the matter complained of may be insisted upon, the plaintiff in error may here avail himself of it, although he has filed no motion for a new trial.

And again, we think, under the broad power of amendment afforded by the statute, that it was competent to amend the original motion filed for a new trial, by adding as an additional assignment and ground of the motion, the matter complained of in the second motion.

It will be remembered that this motion for a new trial, the original one, was filed in due time. At the time of the filing of the 'motion, and for several days afterwards, the party complaining was ignorant, of the matters which he assigned as the ground of the second motion. Before that motion was disposed of, and while it was still upon file, the second motion was filed. The statute, section 5114, confers very broad powers upon the subject of amendments:

“The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out any party, etc., etc."

In the case of Knox Co. Bank v. Doty et ah, 9 Ohio St. 506, the facts were these: A judgment had been taken upon a cognovit, against four parties. One of them filed a motion to set aside the judgmeut, alleging as a ground of the motion, (1) that the bill had been altered after execution by him, in a material part, without his consent; and (2) because the warrant, of attorney was not filed with the papers. The motion ran along for several terms, until, subsequently, another of the parties came in and filed — not exactly a new motion, but made himself a party to the old motion. In the language of the court:

Loyd, one of the defendants, at the term in which it was rendered, filed his motion to vacate the judgment for this cause, and that motion was regularly continued from term to term, until it was finally disposed of by setting aside the judgment. A motion thus made, continued, and determined, is, in legal contemplation, as if made and decided at the trial term. A motion to vacate a judgment for irregularity is a ‘proceeding’ authorized by the code, and as such is amendable. There was not, therefore, any error in permitting tlie defendant Thompson, to become a party thereto at the second 'term after rendition of the judgment, such amendment being authorized by section 137 of the code,” which is the same section that I have read, as renumbered. The proposition established there is this: A motion is filed at one term to set aside a judgment, by one of the parties. That motion is continued for several terms, and then another party comes in and makes himself a party to the motion, and amends it, in fact. The court treats this action as an amendment of the original motion, and disposes of the. case accordingly.

Pratt & Wilson, for plaintiff in error.

Samuel Kohn, for defendant in error.

Attention was called to the provisions of the statute, sections 5297 and 5298, providing for exceptions to the judgment or proceedings of the court where it is desired to prosecute error on the ground of erroneous rulings of the court. Here, there was no opportunity to take an exception, which may be, perhaps, stated as an additional reason why the court should not be permitted to give instructions to the jury in the absence of counsel, without making a reasonable effort to secure their presence.

But the question upon which we hold that the court erred the one upon which we lay especial stress, is not particularly the matter which the court stated to the jury, but upon the fact that it called the jury in and undertook to instruct them in the absence of counsel and without any attempt being made to give counsel an opportunity to be present.

We have not considered the questions made in the main case, but, being of opinion that the court erred upon the particular matter which has been brought before us here, the judgment of the court is that the judgment of the court below must be reversed, and the verdict set aside and a new trial granted, and the case remanded for further proceedings according to law.


author: King, J.,

text:
    (Sixth Circuit—Ottawa Co., O., Circuit Court
    July Term, 1895.)
    Before Scribner, Haynes and King, JJ.
    CHAS. J. DECKMAN v. THE VILLAGE OF OAK HARBOR ET AL.

      Mandamus — Practice.—An alternative writ of mandamus to be effec tive under the statute must contain a copy of the petition, that the defendant may know what act he is required to perform.

      Act required impossible to be performed. — Where in an action to compel a municipal council to award to plaintiff a contract for paving a certain street, it appears from the pleadings that before the alternative writ of mandamus was served upon defendant, a contract had been entered into and performed and at least ninety per cent, of the contract price paid, so -that council could not comply with the. order of the court if ordered to do so, no writ of mandamus will be allowed.
   King, J.,

(orally:)

Tbe pleadings show in this case that the plaintiff seeks to have the council of the village of Oak Harbor award him the contract for paving a certain street in the village of Oak Harbor, and the pleadings show that before the alternative writ of mandamus had been served upon the defendant, a contract had been let and entered into between the village and defendants Jacobs & Stewart, and that said contract had been performed and fulfilled and the village had paid the contract price, or at least ninety per cent, of it.

It was ascertained at the last term of this court that the alternative writ served upon the defendants was not the writ which the statute required. It did not contain a copy of the petition, so the defendant could not know the act it was required to perform. The examination that we have made of the. authorities upon this question and the statute leads us to the conclusion that the demurrer of the defendant should be sustained. The statute provides in the first place that ‘ ‘ Mandamus is a writ issued in the name of the state, to an inferior tribunal, a corporation, board or person, commanding the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station.” The application must be made by petition. The writ will not issue when there is a plain and adequate remedy at law. It must be made on application to the court or judge thereof. When it is apparent that no valid excuse can be given for not performing the act,the court may allow a peremptory mandamus, but in all other cases an alternative writ must be allowed. The defendant must do the act required to be performed, and in case of an alternative writ he must perform the act or show cause before the court why he does not do the act.

The judgment is then that the defendant do the act required, and if judgment, says section 6753, “be given for the plaintiff, the relator may recover damages which he has sustained, to be ascertained by the court,'the jury, or by a referee or master, as in a civil action, and costs, and a peremptory writ shall also be granted to him without delay.”

That is the judgment authorized by the statute — that the defendant do the act which he refuses to do. But can the court give that kind of a judgment when it is apparent upon the face of the pleadings that it can have no possible effect because the defendant cannot perform it? . ■

It is said that he has put it out of his power, and that that is no excuse. But lie did not put it out of his power after the service of the writ. The action was not commenced until proper service of the writ was made. A copy of the petition must be served upon the defendant that he may know what he is expected to do. This was not done. Now, an order made at this stage of the case would be wholly useless. The village cannot let this contract. This contract was let and completed before this action was properly commenced, and the money paid for the performance of it. The contract has been executed. The judgment would be one for damages — where there has been a proper service of the writ before the execution of the contract. After the service of the writ the defendants have nothing further to do than to make their answer to the court, and if they go on and let the contract, then this action for damages would lie.

Buckland & Love, Judge Finnefrock and H. B., Magruder, for Deckman.

John Duff, for the village and council.

We have been cited to no authority, and we decide this case upon the one ground: That the pleadings show that the act which the plaintiff desires may be performed by defendants, to-wit: the awarding and execution of the contract for the improvement of the street mentioned, was let and executed between the village and the defendants Jacobs & Stewart prior to the service of the alternative writ of mandamus in this case on the defendants or either of them.

Judgment for the defendants. Petition dismissed.

Defendants recover their costs.


author: Swing, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1894.)
    Before Swing, Cox and Smith, JJ.
    P. C. & ST. L. Ry. Co. v. AUGUST N. HART.

      Bill of exceptions — Journal entry after term amending bill. — -To make a paper a part of a bill of exceptions, it must be incorporated in it, or attached to it, or filed with it, and so described as to leave no doubt as to its identity. When not so made a part of the bill, the defect can not be cured by obtaining an entry in the trial court at a subsequent term, directing it to be taken as a part of the bill.

      Contributory negligence — Proof.—It is error for the court to charge the jury that plaintiff not only must prove defendant’s negligence, but also prove affirmatively that he did not contribute to his injury. The burden of showing contributory negligence is on the defendant.

      Erroneous charge to jury — Error presumed. — Parties are entitled to a correct statement of the law by the court in its charge' and error will be presumed when the law is not correctly stated, but the error must appear to be prejudicial to plaintiff in error.
   Swing, J.

This case was heard some time ago, and should have been ■decided sooner, and it would have been, had it not been for the fact that the court was divided as to one important question in the case.

There are several grounds of error assigned, but we will confine our remarks to the two grounds which seem to be-the ones principally relied on by plaintiff in error.

The defendant in error. Hart, recovered a judgment against the plaintiff in error, in the Hamilton County Common Pleas, for injuries received on defendant company's, road in the state of Pennsylvania, ’while employed by the Adams Express Co,, running on said road from Cincinnati to Pittsburgh. . ■

It was claimed in the court of common pleas, by the plaintiff in error,‘that defendant in error’s right to recover must be governed by the law of Pennsylvania. And the law of Pennslyvania, as stated in 96 Penn. St., was offered in evidence; but within the time allowed for signing the bill of exceptions it was not made a part of the bill of exceptions. -Upon the trial of the case in this court, this omission was-pointed out, whereupon counsel went to the court of common pleas, and upon motion at a subsequent term, the correction-was made, and the bill of exceptions amended. Could this be done? We think not. We are not aware that the rule-laid down in Busby v. Finn, 1 Ohio St. 409, has ever been changed by our Supreme Court. It seems to us that the-second proposition of the syllabus in that case is directly in point as well as the language of Judge Thurman in his opinion on page 414. If we are correct as to this matter, we can not consider the question attempted to be raised. Neithei” can we consider the question of error, that the verdict is against the evidence, as all of the evidence is not before us.. On this point there is no decision, of the court.

The next question of error arises on the charge of the court..

That portion of the charge about which the court is divided, and as to the correctness of which there is great doubt, commences on page 112 of the bill of exceptions at the words, “right here,and ends on page 118 with the words ‘ ‘ upon himself.

Unquestionably the court did not state the law’ correctly in that portion of the charge, when it says: “Then it is incumbent, and the burden of proof is cast upon the defendant to show that the negligence of the railroad company did not produce the injury complained of, and that the plaintiff contributed to his own injury in this case.” If this charge was alone, and slated as an independent proposition of law, it being erroneous, the judgment would have to be reversed; but it is not stated as an independent proposition, but is given in connection with what precedes it, and as a part of it. In that portion of the charge which precedes it, is stated very strongly against the plaintiff, and in this there'is undoubtedly error, prejudicial to plaintiff. The court says that before they can give judgment for the plaintiff, the jury must find, not only that the defendant was guilty of negligence, but ¿liso that he did not contribute to his own injury. This point is repeated and emphasized, and under this charge the jury were not authorized to find for plaintiff, unless they found these two facts, viz: that the defendant was guilty of negligence, and that the plaintiff did not contribute to his own injury, and they must find this under the instruction that the plaintiff must show this, and this was more than the law required of him, for the burden of showing contributory negligence was on the defendant. Being first required to find this, it seems to us that the use of the word “and’ ’ instead of “or” in the sentence that followed,was not “calculated” to mislead the jury.

The charge must be construed as a whole, and as a whole it certainly is against the plaintiff.

As against this view, we are confronted with the decisions of our court to the effect that the parties are entitled to a correct statement of the law, and that error is presumed when it is not correctly stated. And in attempting to har.monize those rules, we are in doubt as to the correctness of our decision; but it is incumbent on plaintiff in error to show error to his prejudice — and this a majority of the court think has not been done.

As to the other errors assigned we think they are not well taken; they arose on questions which were within the discretion of the court.

The judgment will therefore be affirmed, with costs, without penalty.


author: Jenner, J.

text:
    (Fifth Circuit—Stark Co., O., Circuit Court
    Feb. Term, 1895.)
    Before Jenner, Pomerene and Adams, JJ.
    P., FT. W. & C. RY. CO. v. CITY OF CANTON et al.

      Adverse possession — By grantor of land, what required to constitute. —The mere undisturbed possession of land by the grantor, after delivery of the deed, for any length of time, will not be considered adverso as against the grantee. Nothing but a clear, unequivocal and notorious act on the part of the grantor that would at once advise the grantee of the purpose of the grantor to hold the land against the grantee, would bar thedatter’s right if continued for twenty-one years.
   Jenner, J.

(orally.)

The Pittsburg, Ft. Wayne & Chicago Railway Company and the Pennsylvania Company against the city of Canton et al., was an action in the court below, brought by the city of Canton and the other plaintiffs named against the two railway companies, alleging, among other things, that these plaintiffs were the owners of certain real estate described in the petition, lots, or parts of lots in the city of Canton, and the city of Canton claimed to be the owner of a certain alley, also described in the petition; and they aver that the defendants threatened and are about to remove the fences now bounding and separating the several tracts of the jjlaintiffs,- and to remove the other improvements that may be on said strip of land claimed by the defendant, and they threaten to take possession of the real estate described, and they ask that the defendants be restrained during the pendency of this action, and on final hearing the claim of each of the defendants may be held to be null and void, and title quieted. That is substantially the claim made in this petition.

The defendants answer, and admit that they are about to enter upon and take possession of the alley and of the strip of land, and they deny the existence of any public alley as claimed in the petition. And they aver that they are entitled to the exclusive possession of the ground described in the petition. That presents the issue that was tried in the court below.

Counsel do not differ very much as to the facts of the case. The record shows that Joseph Meyer, January 1, 1851, owned all of the real estate described in the petition. It also appears in the record that on that date, by deed of general warranty, he conveyed to The Ohio and Pennsylvania Railroad company, a strip of land lying on each side of its railroad fifty (50) feet from the center line of the track, and it is admitted that the land conveyed by that deed comprises the land now in dispute. So much of the deed as described the conveyance to the railroad company by Meyer reads as follows: “A strip of land one hundred (100) feet wide running eastwardly and westwardly through said quarter, being that part of said quarter appropriated and occupied by the said Ohio and Pennsylania Railroad company for their said road as now located; the same containing and occupying fifty (50) feet on each side of the center line of said road, and no place to exceed one hundred (100) feet in width.”

The record also shows that Meyer, through his tenants, continued to farm this land so conveyed, at least up to a fence that was erected on each side of the railroad track. He continued to do this until his death, in 1869. ' It also is an admitted fact that twenty-four or five years before the bringing of this action the railway company constructed fences on each side of the railway track; that these fences were thirty-three (88) feet from the center line of the railroad..

Now, it further appears that at the death of Meyer, by the provisions of his will, this real estate passed to his widow, giving to her at least a life estate, with probable remainder over to minor heirs.

It appears also that in 1887 proceedings were commenced to sell part of this real estate, the part lying on one side of the railroad track; and such proceedings were had that an order of sale was issued and the sale made. And later, another proceeding was instituted for the purpose of affecting a sale of the residue, and that was sold in 1886. One of the purchasers of a portion of the land, platted it, laid it out in lots, and sold a number of the lots.

Another question that was raised is this, as to whether or not the acts of Meyer, and of Meyer’s widow, and I may say of those claiming under them, by virtue of the proceedings that were instituted in the court,, and the sale thereafter, as to whether or not those were such acts as constituted adverse possession as laid down by our Supreme Court.

On the one side it is claimed that the grantor could not by any act of his by remaining in possession and simply using the land for farming purposes — by no length of time would he acquire title as against his deed unless by some open and notorious act he made it known that he did claim the property as his own as against the deed,so that the grantee would understand that he was making that claim.

On the other side it is maintained that all that was necessary was for him to exercise such acts of ownership as if a stranger to the deed had done the same thing it would result in twenty-one (21) years in a perfect title.

Now, I want briefly to refer to a few authorities and very briefly. We are cited to this case in the 13th Ohio St., case of Lane v. Kennedy et al., which announces the general doctrine and I read from page forty-six and forty-seven. “But the mere undisturbed possession of lands for any length of time, which is all that the charge assumes, does not of itself create such bar as against a natural person. To have such effect the possession must not only have been open and notorious, but it must also have been adverse during the whole period of twenty-one years.” That is the doctrine of continuous possession. "The fact of possession per se is only an introductory fact to a link in the chain of title by possession, and will ^^ot simply of itself,however long continued, bar the right of entry of him who was seized; aud, of course, creates no positive title of any kind. ’ ’

Now, the court in announcing this principle does not refer to a grantor; but it is the general doctrine as against a party not a grantor. “To make such possession adverse there must have been an intention on the part of the person in possession to claim title, so manifested by his declarations or his acts, that a failure of the owner to prosecute within the time limited, raises a presumption of an extinguishment or a surrender of his claim .! ’

That is the general doctrine, and the 40th Ohio St. 305, simply states also the general doctrine of adverse possession. We are cited to 1 Wendell, case of Brown v. Burton, 341, in which this principle is announced. “In ejectment, where the grantor of a small lot of land remains in the possession of the premises conveyed for twenty-seven years, and no entry or act of ownership on the part of the grantee was shown,it was held that such possession was not adverse. It remained in the possession for tweilty-seven years, and nothing but a clear, unequivocal and notorious disclaimer of the title of the grantee could render the possession, however long continued, adverse. ”

And we are cited to a late case reported in this 25th Atlantic Reporter, page 802, case of Connor et al. v. Bell et al., Supreme Court of Pennsylvania, in which the opinion was announced January 3, 1893. “ The mere continued possessio'n by a vendor of a portion of the land sold is not, when unaccompanied by any further assertion of claim, adverse. ’ ’

In that case Bell had been the owner of the land at one time; Bell was the grantor, and he conveyed it, and the court in the opinion said. this among other things: “It will thus .be seen that Bell claimed the land in opposition to his own deed, and rested his claim upon the adverse possession of a portion of lot number 591; this possession was again taken by Strip, or his successor in title. Strip purchased the lot, and immediately took possession of a portion of it for the purpose of drilling on oil well thereon, and further the adverse holding was that mere continuation by the vendor of the j)ossession he had when he sold to Strip. The mere possession by the vendor of the land is not adverse as against the vendor. ’ ’ We are cited to these authoritiaes and some others.

Counsel on the other side claim the rule is as announced in the 18th and 40th Ohio St. The reason for the rule, if we are to go back to the reason, would seem to be a very good one, as announced in this Wendell, and in'this Pennsylvania State case. Can a man sell land, convey it by deed, and then, because the other party does not take possession of all of it, and that continues for twenty-one years,or longer, can he say, “why, as against my deed, I am the owner?” Can he do that, without, after the delivery of the deed, doing some such positive act that would put the grantee upon notice? It would seem that ought to. be the law as announced here. Certainly we must hold it to be so in the absence of any authority to the contrary. There is nothing in our state, that we know of, and indeed we know of nothing elsewhere, that would relieve the grantor from [doing some such positive act that would at once advise the grantee that he intended as against his own deed to hold the land sold, and if he did that, and twenty-one years is allowed to elapse, then, of course, a perfect title would be acquired.

We have been referred to the case of Chapman against the Railroad Company, which was disposed, of in this court at a former term. It is stated that the opinion in that case, the conclusion the court then came to, is contrary to this holding as I have indicated. We do not think so. In that case, in 1852, Teeters made a verbal contract with the railroad company for six acres of land; no deed was executed; it runs along for years, many years; Teeters, in the meantime, platted that same land, or part of it, in town lots, sold the lots adjacent to or abutting upon the railroad. Buildings were erected up to the line of the railroad, indicating clearly just where the line of the lots was. There happened to be one or two vacant lots that had been controlled by Teeters; the city prison had been located upon it, and used as a kind of dumping ground for refuse, with the permission of Teeters.

Caray, Boyle- & Mullins, for plaintiff in error.

P. J. Collins, City Solicitor, for defendant in error.

Years after, when this verbal contract seemed to have been abandoned, the suggestion was made by the officers of the company, Teeters, will you still convey that land, or what would you insist upon?” “Well,” he says, “if you pay me $785.00 an acre and all the taxes I have paid, you can have it.”

They assented to that; said that is reasonable, and thereafter they send the deed to him, which he executed without very careful examination, but nevertheless it was apparent that there was a mistake. That was the principle upon which that case was disposed of, and there was no intention, and could not have been any intention to convey those buildings, or any part of them; and they indicated the line along which the railroad company intended to claim, and Teeters intended to convey.

W'e think the finding and judgment of the court below is erroneous in this case, and we will reverse it; and a decree may be rendered here in favor of the company.