author: VGORHERS, J.

text:
    MANDAMUS — CITY COUNCIL — HEALTH OFFICER.
    [Stark (5th) Circuit Court,
    February Term, 1902.]
    Douglass, Voorhees aud Donahue, JJ.

      State ex rel. Miller v. Massillon (Council).
    L Health Officer not Contemplated Under Sec. 1717 Rev. Stat.-
    A health officer, appointed by a board of health, as provided by Sec. 2115 Rev. Stat., is not an officer or appointee, in contemplation of Sec. 1717 Rev. Stat., and the board of health may increase or diminish his salary while he is in office.
    S. Compensation of Such Officer not Affected by Sec. 2702 Rev. Stat.
    The council of a city can be compelled, by mandamus proceedings, to is^ue its order or make an appropriation for the payment for services of such officer, in the absence of the certificate from the proper officer, that there were funds on hand for the payment of his services at the time the liability was incurred or increased. Section 2702 Rev. Stat. does not apply to such officer.
    8. Sections 2115 and 2140 Rev. Stat., are Mandatory — A Police Regulation.
    Sections 2115 and 2140 Rev. Stat., the former, providing that boards of health may appoint health officers, etc., and the latter, for payment of expenses of-board of health, are mandatory in character; and the establishment of a board of health is a police regulation of the state.
    Heard on Appeal.
    A. A. Thayer and Mr. Young, for plaintiff, cited:
    Sections 2H5 and 2140 Rev. Stat.; Hibbs v. Franklin Co. (Comrs.), 35 Ohio St. 48.
    Section 2702 Rev. Stat. does apply to the action of the board of health in this case. Lima Gas Co. v. Lima, 2 Circ. Dec. 396 (4 R. 22, 28); Findlay v. Parker, 9 Circ. Dec. 710 (17 R. 294); Wilson v. Cin-' cdnnati, 10 Re. 123 (19 Bull. 10).
    All the authorities cited by counsel for defendants in-relation to this Sec. 2702, it will be noticed, are held to apply to contracts lor improvements and contracts made by the city council. And even in cases involving contracts for improvements, the many courts ot this state have held that section not to apply where the improvements are to be paid for by special assessments. Put-in-Bay (Vil.) v. Webb, 7 Circ. Dec. 478 (18 R. 780); Tyler v. Columbus, 3 Circ. Dec. 427 (6 R. 224); Cincinnat v. Honnigfort, 1 Dec. 563 (32 Bull. 32).
    It is a rule constantly observed in the construction of statutes, that where the general provisions ol a statute conflict with the mere specific provisions of another, or are incompatible with its provisions, the latter is to be read as an exception to the former. Cincinnati v. Holmes, 56 Ohio St. 104 [46 N. E. Rep. 514]; State v. McGregor, 44 Ohio St. 628, 631 [10 N. E. Rep. 66] ; Knox Co. (Comrs.) v. McCombs, 19 Ohio St, 320, 345; State v. Newton, 26 Ohio St. 200.
    All the provisions of the board of health statute, in relation to the council, are mandatory. Even the first provision of the statute compels the council to establish the board of health, and in like manner compels the council to provide for its expenses. Even the expenses of the board of health in quarantining infectious cases of contagious diseases are provided for by this same Sec. 2115 and Sec. 2140, and come clearly within the exercise of the police powers of the state. 18 Am. & Eng. Enc. Raw (1 ed.) 744; Thomas v. Mason, 20 S. E- Rep. 580 [39 V/. Va. 526; 26 E. R. A. 727]; Davock v. Moore, 63 N. W. Rep. 424 L105 Mich. 120; 28 E- R. A. 783, 788]; Rae v. Flint (City), 15 N. W. Rep. 887 [51 Mich. 526].
    It would be contrary to public policy to endanger the public health by snaking it imperative to employ help who would not be sure of compensation. Elliott v. Kalkaska, 25 N. W. Rep. 461 [58 Mich. 452].
    The law does not require the performance of a duty, and at the same time withhold the means necessary for its payment. Eabrio Manchester, 59 N. H. 120, 122 [47 Am. Rep. 179],

      A. Pomereae and Solicitor Howell, for defendant, cited s
    Findlay (City) v. Pendleton, 62 Ohio St. 80 [56 Kf. 38. Kep. 649]; Comstock v. Nelsonville (VIL), 61 Ohio St. 288 [56 N. E. Rep. 15|; McGrew v. Elmwood Place (Vil.), 6 Circ. Dec. 106 (17 R. 676); State v. Hofiman, 25 Ohio St. 328; Bister v. Springfield, 49 Ohio St. 82, 100 [30 N. E. Rep. 274]; Stone v. Davenpo'rt, 7 Re. 83 (1 Bull. 102); Harrell v. State, 1 O. S. C. D. 101 (23 Bull. 150); Commercial Gaz. Co. v. Dean, 11 Re. 207 (25 Bull. 250); Cope v. Wellsville (Vil.), 11 Re. 205 (25 Bull. 250); Bond v. Madisonville (Vil.), 1 Circ. Dec. 581 (2 R. 449); Drott v. Riverside (Vil.), 2 Circ. Dec. 565 (4 R. 312); Rhodes v. Toledo, 3 Circ. Dec. 825 (6 R. 9); Holmes v. Avondale (Vil.), 5 Circ. Dec. 188, 189 (11 R. 430); Ampt v. Cincinnati, 2 Dec. 504 (2 H. P. 332); Dowry v. Cincinnati, 7 Re. 81 (1 Bull. 102); East St. Eouis v. Freels, 17 111. App. 339; Prince v. Quincy (City), 28 111. App. 490-; Culbertson v. Fulton (City), 18 N. E. Rep. 781 [127 111. 30]; Prince v. Quincy (City), 21 N. E. Rep. 768 [128 111. 443]; Prince v. Quincy (City), 105 111. 138 [44 Am. Rep. 785]; French v. Burlington, 42 Iowa 614; Cook v. Cook, 57 N. W. Rep. 1085, 1086 [99 Mich. 63].; Superior (City) v. Norton, 63 Fed Rep. 357 L12 C. C. A. 469; 24 U. S. App. 59]; Thompson v. Phillips, 12 Ohio St. 617; Parker & Worthington Pub. Health & Safety, Sec. 142, p. 160; Watt v. Altoona (City), 23 Pa. Co. Ct. Rep. 410; Watt v. Altoona (City), 9 Pa. Dist. Rep. 235; Wood v. Pleasant Ridge (Vil.), 5 Circ. Dec. 516 (12 R. 177); Cincinnati v. Holmes, 56 Ohio St. 104 [46 N. E- Rep. 514] ; Put-in-Bay (Vil.) v. Webb, 7 Circ. Dec. 478 (18 R. 780); Platt v. Pennsylvania Co., 48 Ohio St. 228 [1 N. E. Rep. 420]; Mills v. Norwood (Vil.), 11 Re. 416 (26 Bull. 348); Clark v. Columbus, 10 Re. 760 (23 Bull. 289); Wilson v. Cincinnati, 10 Re. 123 (19 Bull. 10); see Sec. 3085; Cincinnati v. Honnigiort, 1 Dec. 563 (32 Bull. 32); State v. Burleman, 4 Circ. Dec. 506 (8 R. 482); 14 Am. & Eng. Ene. Raw (1 ed.) 182; State v. Yeatman, 22 Ohio St. 546.

      For common pleas decision, see 13 Dec. 292.

   VGORHERS, J.

This cause is a proceeding in mandamus and comes into this court on appeal. There is but little controversy on the tacts of the case, and such facts as we have are submitted to the court on an agreed statement, reduced to writing, and for the purpose of the decision it will not be necessary to refer to them in many instances, as we deem the question that is submitted more a question of law than a question of fací.

There arc two primary questions submitted for the consideration of the court. The first question is, whether the relator was a legal officer or employe oi tbs board of health of that city, and the board oí health having increased his salary while he was then in office, whether that could be legally done and would be such an act as would lay a foundation in his favor for service at the increased rate fixed by the board of health.

The second question is, whether the council oi that city. would be compelled to issue its order or make an appropriation for the payment of his services, in the absence oi the certificate from the proper officer that there were funds on hand for the payment of bis services at the tíme the liability was increased.

Perhaps I stated the propositions in the reverse order ia which they were presented, but we think this would be the logical arrangement of She question that is properly before the court.

The first contention then is, could the board oi health increase hijj salary while he was still in the employ of the board ? That depends on the nature of his office or employment. There is no difficulty in the proposition of law that an officer cannot receive the benefits of an increase in his salary during the term ot his office; aud that does not necessarily depend upon an elective office, but it also reaches an appointee to an office. But before passing upon that proposition we think that the word “appointment” has significance. A person is elected to an office for a term, and before his term has expired by resignation, death or otherwise, there may be a vacancy in the office, then that office may be filled by appointment; but such an appointee would stand in the same relation that the officer who was elected would stand, and cannot receive an increase ol salary during the unexpired term of that office. But that is not this case.

What is the office of this officer or appointee who was appointed by the board ol health ? He is called a “health officer.” But has he a term of office? That would be the first question.

The statute now applies to cases where there is an increase during the term. The word "term” has significance, as we think, under that section of the statute. It simply means to limit. That is, during the period that the office is limited, during that period his salary shall not be increased. But in this case there is no limit fixed by law. It is. at the pleasure of the board of health that gives the health officer his position. It is at their pleasure. It is not a term, for the reason there is no limit to it. It may be likened unto a tenancy at will, not a term, because it has no limitation. Therefore, it would be difficult to bring such an employe within the terms of Sec. 1717 Rev. Stat., prohibiting an increase of salary ol an officer during his term, whether he be elected or whether he be appointed. We think that this is the true meaning of Sec. 2115 Rev. Stat.

“The board shall appoint a health officer, who shall furnish his name and address and such other information as may be required by the state board of health; and shall appoint a clerk, and may appoint as many ward or district physicians as it may deem necessary for the care of thé sick poor, and persons under quarantine surveillance, and may provide for such quarantined persons necessary attendants, nurses, medicine and support until convalescent. The board shall have exclusive control of their appointees, and define their duties an'd fix their salaries; and all such appointees shail serve during the pleasure of the board.”

It will be observed that the duties of the appointee or health officer are not prescribed by statute. He is the servant of the board of health that makes the appointment.. He is under their absolute control and direction; and in addition to that, they fix his salary. His salary is at the will of the board of health? His term of office is at their will; -they may terminate it at their pleasure.

Then the question will arise, it that be so, does such a person hold the office for a term ? Is there any limit to it, to which he may claim by virtue of his appointment ? We think not.

It being then exclusively within the discretion and power of the board of health to fix his salary, there is no reason why it may not be changed at any time at the pleasure of the board, whenever necessity would seem to require it. And there would be wisdom in such a provision. Such an officer as this, the duties required of him not begin fixed and laid down by the law, but are fixed and determined by the' board of health, we can see very good reason why his services to-day, or for a week or month, might be much greater than at other times, dependent upon the condition and purposes for which the office is created, namely, to take care of these persons that require help, and ior whom it is the duty of the board of health to provide. Now, that being the nature of the employment, perhaps it is a misnomer here to call him officer at all. He is more like an employe or servant of the board ot health. Then, if the board of health has the exclusive right to fix his duty, determine the length of time he shall serve them, fix his salary, when they act on that matter, it is then in compliance with the statute fixing the liability of somebody to pay. So we hold that in this case as a fact, that the health office here was not such an office as would come within the purview of Sec. 1717 Rev. Stat.; that it is such an office that the salary is not fixed, and is liable to be changed at the will or pleasure, and the necessity, as it may be looked upon and seen by the board of health.

While we are on this branch of the case we want to make a further observation that will be pertinent to the next question. It is not discretionary with the board of health, whether they will Have a health officer or not. It is mandatory. It requires that they shall have one. The board of health shall appoint this health officer, and then provide how he shall be governed under their authority and direction.

Then we might further observe the purpose ol this statute. We think this is a mandatory statute to create this office. We think it mandatory and lor the interest and benefit not of a local place entirely, that is of a city or village, but it is such a requirement, or police regulation of the state, that would benefit the state and the citizens at large, that there be somebody to take control and be responsible for conditions that may arise as contemplated by this statute. This will also bear on the next question that we will consider.

This law and the establishment ot a board of health is a police regulation, and may be so characterized. It is mandatory, and the legislature has imposed this duty, and the council of each city is required to establish such a board. If so, then the council are to perform certain duties, and certain officers that may be appointed and employed are not to serve the public gratuitously. Their services are to be fixed and regulated'by the board thus created. Then the council’s duties are pointed out by statute, Sec. 2140 Rev. Stat., as follows:

“When expenses are incurred by the, board of health, under the provisions of this chapter, it shall be the duty of the council, upon appliestion and certificate from the board of health, to pass the necessary appropriation ordinances to pay the expenses so incurred and certified; and the council is hereby empowered to levy, subject to the restrictions contained in the ninth division of this title, and'set apart, the necessary sum to carry into effect the provisions of this chapter.”

There are some further duties that are also mandatory. It is not left discretionary with the council when these expenses have been incurred. Such expenses as are contemplated by Sec. 2115 Rev. Stat., the services and salary of a health officer, these are expenses that are contemplated or may be contemplated under this section of the statute. These expenses have been incurred, and they have been certified, and it is the duty now of the council to make provision for that, and they have refused so to do. The contention, or legal excuse ottered why the council will not pay was, that there was no contract made for the employment of this health officer, ás required by Sec. 2702 Rev. Stat., namely, “that no contract or obligation shall be entered into for the disbursement of public funds unless the proper officer certifies the funds on hand for the payment of such contract or such obligation.’’ That is the one and only vital question we have in this case. Then the first inquiry would arise, is the service of this officer such as is contemplated by the*law as coming within the provisions of Sec. 2702 Rev. Stat.? If not, then that objection by the council tor not making the appropriation will not avail. We think that that question has been decided, yet we know there is some uncertainty about it. We think that the case of Wilson v. Cincinnati, 10 Re. 123 (19 Bull. 10), is significant and pertinent to the question we have now under consideration. Peck, J., says:

“ This is an action to recover rent claimed to be due from the city lor the use of a building known as the Armory building, situated on Court street. Under an act of the legislature requiring the city of Cincinnati to provide an armory for the militia, the city authorities made a lease of the building for the term of five years, and put the first regiment in possession, and the regiment continue in possession during the term of the lease, and for a large part of the term the city paid the rent.”

Toward the latter part of the term the finances of the city got into such a condition that there was no money to pay the rent, and then certain questions were raised as to the validity of the contract of lease, under what are known as the Worthington and Burns laws, Secs. 2699, 2702.

Those questions were reserved on demurrer to the general term, and there it was decided that the allegation that when the lease was made there was no money in the city treasury specially set apart to meet the expenditure to be incurred under it, did not constitute a defense, because the act under which the lease was made (74 O. L. 235, now Sec. 3085 Rev. Stat.), is mandatory, and requires the city to provide an armory for the militia and pay the expenses of the same, while providing no method ol raising funds therefor. ¡

We think that the statute we are considering is just as mandatory upon the board of health. That is not only mandatory upon the city council to create the board of health, but it is equally mandatory upon the board of health to create the office of health officer and to fix his salary, etc. These are things which the legislature of the state has required shall be done; and if they are done and the expenses have been incurred, then what is the duty ol council under Sed 2140 Rev. Stat. ? That they must make appropriation to meet this expense. There is no discretion in it, and it is not a subject of contract, but is a mandatory duty cast upon the board by the state, and they owe that duty to the state.

Without taking more time we are inclined to that view, although we feel the force of the arguments that have been made against this proposition. It is not as clear and free from doubt as we would like to have the question. But we may make this further observation, this court is somewhat committed to this line oí decisions whether right or wrong. We had a case in Newark at our last term, when the smallpox was prevalent in that city. A physician had been selected and detailed to take charge of the smallpox patients. One of the questions in that case was the undue action of the board, and the question was raised whether a majority of the board, a quorum, could make such arrangements. We held in that case that they could, and we think the authorities bore us out in that conclusion. That question is perhaps out of this case, but if it were in, we would hold in this case, that it was of such a character that a majority of the board would be competent to make arrangements for the appointment of this officer and prescribe his duties and fix his salary. But the principal question in that case was, after he had incurred these expenses, and the services had been faithfully rendered, and there was no dispute as to the amount, when it was certified to the council of the city of Newark, they refused to pay it or make any appropriation for it. Suit in mandamus was brought, and the question as to there being no certificate that the fund was in the treasury for the payment of these services was raised. Upon full consideration at that time, we came to the conclusion that that was not necessary, it was not such a case as came within the purview of the section of the statute that I have already referred to. So we issued a peremptory writ of mandamus to compel the city council ol Newark to make an appropriation to pay the services of this physician. That case is in the Supreme Court, li we were right then we are right now. If wrong then, perhaps we are equally wrong now. It is' the duty of the ¿ourt to be consistent and take chances of reversal, an'd we will render the same judg« ment and decree we did there — a peremptory writ will- be issued, and costs to follow.


source: Caselaw Access Project

author: HULL, J.

license: Public Domain

text:
    [Lucas (6th) Circuit Court,
    July 1, 1902.]
    Haynes, Parker and Hull, JJ.
    Patrick Scanlon v. Lake Shore & Michigan Southern Ry. Co.
    1. Loading Railroad “Frogs” on Cars at Sides or Ends Immaterial.
    Although railway “ frogs” are usually loaded on flat or box cars which may be loaded at the side, a railway company, in furnishing a “gondola” car, opening only at the end, for such a purpose, is not, for that reason, liable to a man injured while loading a “frog” upon such car, it not appearing that it is more difficult or dangerous to load a “ gondola” then a “ flat” or “ box” car.
    2. Risk AssuKied by Experienced Employe in Regular Course of Work.
    An employe, experienced in the work in which he is engaged, having as much knowledge as his employer of its hazardous nature, cannot recover against his employer for an injury received in the regular course of such employment without any negligence on the part of the'employer.
    3. Customary Force to do Work Relieves Employer from Unforeseen Accidents. „
    A railway company, in furnishing only four men to load a “frog” upon a car, is not guilty of negligence which will render it liable to one of such men injured while so engaged, where such injury is due solely to the great weight such man is compelled to sustain by reason of the act of one of his fellow employes in letting go of the “ frog,” resulting from the latter’s fear of injury produced by the sudden slipping of the “frog.”
    4. Discovery of Means of Preventing Accident Subsequent to its Occurrence Cannot Impute Negligence.
    The mere fact that an employe of a railway company is injured does not raise a presumption of negligence. Hence, when an injury results to an employe from an unforeseen accident, the course of which by ordinary prudence could not have been anticipated by the employer, no recovery can be had. The fact that after the accident occurs appliances or methods of doing the work are discovered, which could have prevented the accident, does not in itself show negligence.
    Heard on Error.
    Orville S.Brumback, for plaintiff in error.
    Emory D. Potter, for defendant in error.
   HULL, J.

The action below was brought by Scanlon to recover damages lor injuries which he 'claimed he had sustained on account of the negligence of the railway company. The case was heard by the court and a jury, and, at the conclusion of the plaintiff’s testimony, on motion of defendant, the court directed *he jury to return a verdict in lavor ol the defendant, and judgment in lavor of defendant was entered upon that verdict. This action of the court is claimed to have been erroneous, and it is sought 1o reverse the judgment.

The plaintill was in the employ ol the Lake Shore Company and had been for some twenty-one years at the time of his injury, which occurred in the early spring of 1899. He had worked in different capacities, and at the time of the injury was working as a section man and had been so employed for something over two years. He was engaged at the time of his injury in assisting in the lifting of a heavy cast iron frog which they were attempting to load into a car called a gondola car, and it was alleged and claimed that the railway company was negligent in not furnishing a sufficient force of men and m undertaking to have this piece ol iron loaded onto the car in an improper manner and in not furnishing a proper and fit car for the purpose. These are the three grounds of negligence that are complained of against the defendant railway company.

The piece of iron was lying by the side of the track, nót lar from the Lake Shore depot in the city of Toledo, at a place called the Middle Ground. Four men, including Scanlon, were called by the foreman to load it in thenar. There were on the car two other men who were there lor the purpose of assisting in loading articles on the car, but who took no part in the loading of this piece of iron onto the car. The men rolled the piece of iron over the rail upon the track immediately at the rear of the car the end-board of the car being pushed up a foot or a foot and a half so that this frog might be loaded in. After it had been rolled into the middle of the track they ended up the frog, lifted up one end and turned it over so that one end of it rested on the bottom of the car, the other resting in the middle of the track, and under the end which rested on the track was placed a block, so that it was lifted up a little in order that it might be raised better. After the frog was in this position the foreman inserted in some holes which were in the frog (perhaps left there for that purpose) some bolts, in order that the frog might be lifted with a pointed crowbar, the bolts being for the purpose of holding the bar and to keep it from slipping off the frog. After this was done the men took the bar and placed it under the bolts, two men taking hold of the bar on each side of the frog, Scanlon and a man by the name of Fanning being on one side and the two other men on the other side and the foreman standing immediately in the rear. The men then undertook to lift up the end ol the frog which was resting on the track and slide the frog into the car, one end of the frog resting on the car. Scanlon was facing the car, and Fanning, who was on the same side of the frog with him, was with his back to the car and facing Scanlon, and the two men on the other side were in a similar position. When the frog was lifted a short distance from the bed ol the track (just how far does not appear exactly, but not a great ways) for some reason, probably because the side opposite to Scanlon was being lilted higher than the side he was on, the end of the frog which was resting on the car began to slip towards Scanlon and Fanning, and Fanning thereupon, according to Scanlon’s testimony, let go of the bar, which he was hold» ing with Scanlon on that side of the frog, in order that he might get out ot the way oí the frog, which he feared would fall on him, and came around on the other side of the bar to get another hold. This, as was claimed, threw a large part of the weight of the frog upon Scanlon, at least the weight of half of it, and he complains that the weight was so great and he was compelled to lift so much that he sustained internal injuries, the rupturing and tearing away of the muscles of his abdomen. They let the frog down on the track as soon as they could and Scanlon found himself to have been injured. The top ot the irog did not slip off the car, but slipped some inches towards the side of the car on which Scanlon was.

This is a brief statement oí the facts as disclosed by the record, and from which it is claimed there was evidence tending to show negligence on the part of the railway company, and that the case should, therefore, have been submitted to the jury.

It is a well-settled principle oí law that an employe does not assume risks which are due to the culpable negligence oí his employer, but that he does assume those risks which are fairly and reasonably incident to the employment in which he is engaged and which are not due to the negligence of his employer. As stated in a case cited by counsel for plaintiff in error, Van Duzen Gas & G. E. Co. v. Schelies, 61 Ohio St. 298:

“A servant assumes only such risks incident to his employment as will happen in the ordinarily careful management ot the business of the master; such as arise from the fault ol the master are not assumed, and the servant may recover for injuries therefrom, unless his own fault contributed to the accident.”

It is claimed by the defendant in error that the evidence offered by the plaintiü did not tend in any respect to establish negligence on the part of the railway company; that whatever dangers there were, or risks, in this employment were open and plain to Scanlon, and that he assumed them.

One ground of negligence claimed was the kind of car that was used in this work. It appears from the record that a flat-car or a boxcar had ordinarily and usually been used in doing this kind ot work (the loading of frogs of different kinds) theretofore. Scanlon testified that he helped to load frogs upon that kind of a car — into a box-car, open at the side, and a flat-car, being so built that the frog might be loaded at the side. But Scanlon was not injured when he was getting this frog onto the track at the rear of the car; he sustained no injury on account its being necessary to load this frog onto the end of the car instead of the side, and the floor oí the car itself does not appear to have been any higher than the floor of a box-car, or of a flat-car, and when the end-board was raised (as it was in this case) we are unable to see how this car was unfit for this use or why it was not as well fitted for the loading of a frog into as a flat-car or a box-car. The end-board was raised sufficiently high to clear the frog, and the difficulty seems to have been that the frog, for some reason, slipped or slid along the edge of the floor of the car, causing Fanning to let go, as has been stated, and resulting in the injury of Scanlon.

We are of the opinion that there was nothing in the evidence to show that there was any negligence on the part of the railway company in using this kind of a car. They were not bound under the rules of law, to use the very best appliances in the way of a car; they were bound to use ordinary care, and if, at this time, they had a car of this kind which they desired to use lor this purpose and if, for some reason, they did not wish to use another kind of a car. or did not have the other kind at hand, we see nothing in that to constitute negligence on the part of the railway company; in fact, we are unable to see why this ca* was not as safe for the loading of this frog as a box-car or a flat-car would have been.

It is claimed further, that the force of men was insufficient to do this work. Four men were engaged in lifting the frog, which weighed about 800 pounds, perhaps exactly, 815 pounds. They seemed to have had no special difficulty in rolling it over the rail onto the track, nor in '‘ending it up” so that one end rested on the rear of the car and the other on the railroad track, in fact, there was no trouble until this occurrence; until the sliding of the frog and Fanning letting go of the bar ag has been stated. Now it does not seem to us that such an occurrence as this was one that the railway company was bound to anticipate in the exercise of ordinary care. Four men were all, apparently, that could well use the bar that was placed under the frog, two on each side, and if the frog had not slipped there would have been no difficulty in lifting the end of the frog and shoving it into the car,- and if one side of the frog had not been lifted higher than the other side it is pretty clear that the frog would not have slipped. And it does not seem to us that such an occurrence as this was a thing that could reasonably have been antic-' ipated by the railway company. The foreman was standing immediately in the rear; of the men and the lrog, so that he might render assist* anee when the end of the frog was lilted — that he might assist in shoving it into the car. If Fanning had not let go, the weight of the frog would not have been thrown upon Scanlon as it was. It might not have been negligence in Fanning to let go; probably it was not, he seeing the frog slipping towards him, probably acted in a natural way in letting go of the bar; but, be that as it may, it appears that whatever did happen there was on account cl the acts of fellow servants of Scanlon whether it was negligence or whether it was an act of poor judgment, or whatever it may have been, his injury was due to the acts and conduct of the men, of the fellow servants who were assisting him in the doing of this work. It is, of course, well established, that an employer is not liable for injuries caused entirely by the negligent acts of a iellow servant.

It is urged that the company ought to have had men on the rear of the car to take hold ol the frog and prevent it from slipping in case anything of this kind occurred. It does not appear that it had ever been he practice to have these men stationed there; it does not appear that there had ever been an accident ol this kind before. It was an ordinary, simple piece of work, the picking up of this piece of iron, this iron frog, ending it up and shoving it into the car — as simple a piece ol work as loading a timber onto a wagon, or a log onto a sled or the loading oi any other heavy object into a vehicle; and tüe company seems to have proceeded, as it seems to us, in a way that a person of ordinary prudence would have proceeded, and we think there was no evidence offered tending to show negligence on the part of the company in this respect-Four men seem to have been ample to roll the frog onto the track and seem sufficient to end it up and to have been strong enough to put it into the car. The trouble came irom the frog slipping and sliding a these men lilted it. That was something that could have been anticipated by Scanlon as well as by the railway company. Injuries are liable to happen to men when they are engaged in work of this kind, but if that is as apparent to the employe as it is to the employer, if the employ® has as much knowledge of the danger as the employer has, the employer is not liable if something of this kind occurs without negligence on the part of the employe.

This question is discussed in a Michigan case, Nephew v. Whitehead, 123 Mich. 255 [81 N. W. Rep. 1083], a case where the facts were quite similar to the facts here. The syllabus is:

“An employe, experienced in handling heavy objects, cannot recover against his employer for injuries received by being struck by an iron beam which he was assisting to unload from a wagon on which he had helped to load it; the operation being a simple one, and the employer having no knowledge of danger that the employe did not himself possess.”

The court say, in the opinion:

“The raising was done by six men standing alongside ol the beam behind the wagon, who lifted the beam until it was even with the top of the wheel, and then pushed or threw it over. The beam rested, perhaps momentarily on the wheel. Being thus at an angle with the length of the wagon, the beam, in falling, cleared the wheels. Plaintiff was one of the six men thus employed. They all stood on the side of the beam opposite to the direction in which it was to go. The beam was lifted to the top of the wheel, but as it was pushed over, plaintiff, in some way unexplained by the evidence, was struck by the beam and injured. The beam went beyond the wheel, as it was intended. The plaintiff brought this suit to recover for the injuries thus received. The circuit judge directed a verdict lor the defendant. The plaintiff has brought the case here by appeal..
“If the plaintiff can recover in this case, an employer of labor would be liable whenever an accident occurred. The operation to be performed was a simple one. With the experience plaintiff must have had in handling heavy objects, he must have known as much about the danger involved in the unloading of these beams as any one. ” (Citing authorities.) “We do not deem it necessary to discuss the case.”

Scanlon, although he testifies he had never assisted in lifting a frog as large as this one and did not know the weight of this frog, still was an experienced railroad man and had worked for the railway company for some twenty-one years and had had experience in lifting lrogs of the tame character, though perhaps not quite so large, but it is clear that he knew that a chunk of iron ot the size of this one was heavy and that it would require rather heavy lifting, and it would be apparent to any one that if, in the course of lifting such a piece of iron onto the car, one of the men should let go ol the bar, as happened in this case, that it would throw the weight upon the man who still retained his hold upon the bar. This was something liable to occur. The proper carrying on of the work depended, as it always does, upon each man who was engaged in it performing his part. One of the risks that the employe takes is that his fellow servants — fellow employes — who are without any authority over him, will do their duty in the carrying on of the work.

It seems to us that this case comes fairly within the principle of the case decided by the Supreme Court of Michigan to which I have referred. The transaction here, as in that case, was a simple one — the loading of an object onto a car; and, unfortunately, in the doing of it Mr. Scanlon was injured, but without, so far as we can see, any negligence on the part of the railway company.

In this case, as in many other cases, it is easy after the injury has been done to point out how it might have been avoided. If there had been men on the car, taking hold of, this frog so as to prevent its sliding, perhaps Scanlon might not have been injured. Still he might, for he was injured by reason of Fanning letting go of the bar, but Fanning let go of the bar oh account of the frog’s slipping, as it was said. Although we may look back at the occurrence and see how it might have been avoided, that does not necessarily show that the railway company was guilty of negligence in not providing the means for avoiding it. If appliances were always provided so that an accident could not happen, of course no one would ever be injured. But accidents do occur in the performance of work of this kind and men are injured without any negligence on the part of any one. The mere fact that a man is injured does not show that any one has been guilty of negligence.

We have examined the testimony in the case offered by the plaintiff with a great deal of care and given consideration to the authorities and arguments urged by counsel for the plaintiff in error, and we are unable to find that the court erred in directing a verdict for the defendant.

The third ground of negligence, already discussed without mentioning it specifically, that the frog was not being raised in a proper manner, I need not discuss further. It seems to us that the work was being carried on in a proper manner and in the way that men of ordinary care and prudence would have carried it on, and that which occurred was an accident, and cannot be denominated anything but an accident. Unfortunately, Mr. Scanlon was injured on account ol it. We are unable to see any liability on the part ol defendant, and, the judgment ol the court of common pleas is affirmed.


author: CALDWELL, J.

text:
    MILITIA.
    [Cuyahoga (8th) Circuit Court,
    June 16, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Peter Witt, on Behalf of Cleveland, v. J. P. Madigan, Director of Accounts.
    Independent City Companies Part of the State Militia, When.
    An independent military company, orgauized under Sec. 3056 Rev. Stat., specifying the membership and requiring them to be subject to the orders of the mayor of the city where organized, and of the governor of the state, and entitled to privileges and exemptions accorded to members of the militia of the state, although no compensation is provided for from the state for camp duty or transportation, or for any other purpose, other than upon being called out by the governor, is a part of the active militia of the state, and as such must look to the state for payment of janitors of their armory and not to the city. An ordinance providing for the payment thereof is invalid.
    Appeal by Defendants.
    Samuel Doerfler, for plaintiff.
    Beacom, Baker, Payer, Gage & Carey, for defendants.
   CALDWELL, J.

This case involves Sec. 8056, Subd. 1, 2, 3, 4, 5 and 6 Rev. Stat., and is brought to enjoin the city of Cleveland from paying janitors for the care of armories occupied and used by certain military companies, which janitors are employed by and under the control of theocompany ■employing.

The main question in the case is, are the Cleveland City Guards a part of the. militia of the state? If they are, then all expense connected with such guards must be paid by the state. On the other hand, if the Cleveland City Guards are not a part of the militia of the state, but an organization purely local, then it is claimed that the law is constitutional and can be enforced.' And if this latter view is correct, the petition should be dismissed, otherwise the injunction should be made perpetual.

This section purports to give the citizens of Cleveland authority to •organize, arm and equip an independent infantry company consisting of not less than fifty nor more than one hundred active members, to be known as the Cleveland City Guards, and requires the members to sign an agreement to be subject to all calls of the mayor, or of the governor of the state, in case of insurrection or riot or when there is reasonable .apprehension thereof, which written agreement shall be deposited with the mayor of such. city.

Subdivision 1, Sec. 3056 Rev. Stat., gives the governor substantially the same control and authority over these companies that the law does over the militia of the state.

Subdivision 2 provides for contributing members, and the amount, or minimum of the amount, that each contributing member must pay. This same provision exists in regard to the militia of the state under the general provision.

Subdivision 3 provides how the members are to be governed, and the general provision is, that “ The active and contributing members of such company shall be entitled to all the privileges and exemptions allowed members of the Ohio National Guard.” And then provides the same penalties for refusing to respond to a call of the mayor or governor, as is provided in case of such refusal on the part of the National Guard; and provides the minimum number of men that shall be at all times in. the company. It then provides that the company shall have no pay from the state for camp duty, transportation, “or for any other purpose.” This “ or for any other purpose ” should be, under a well known rule of construction, confined to “ for like expenses ” to that of camp duty and transportation, and cannot be construed to apply to allowance for expenses when called out by the governor of the state.

Subdivision 4 provides for calling them out in case of riot or disturbance, by either the mayor or the governor, and, when so called, they shall be subject to the orders of such mayor or governor.

Subdivision 5 provides for existing independent companies organized and bringing themselves under this act.

Subdivision 5a provides for the city paying for janitors for the care of the armory occupied by, and used by, such companies for military purposes; the janitor to be employed by, and to be under the control of, the company.

It is our judgment that these companies, formed under the above provisions of law, are so far a part of the Ohio National Guard, and are to such an extent active militia under the laws of the state, that provision for their expenses, such as are involved in this case, are to be borne by the state, and not by the county or the city.

There are the same provisions in regard to organization, in regard to the duties to be performed, as to whose orders they shall be subject, as to contributing members, as to privileges, penalties and records, as to the number of members composing the companies, as in regard to the Ohio National Guard.

There are a number of cases cited on the hearing in this case, that these companies, being a part of the National Guard, must be maintained in any degree by taxation, by tax levied on all the property of the state, and a statute authorizing a local tax for such purpose, or providing for their pay, or expenses pertaining to their organization, out of the treasury of the state, without any'provision for repayment from the state, of such expense, is unconstitutional. The case of Hubbard v. Fitzsimmons, 57 Ohio St. 436, 447, 449; State v. Kreighbaum, 6 Circ. Dec. 654 (9 R. 619), and various other cases cited. Also Presser v. Illinois, 116 U. S. 252 [6 S. Ct. Rep. 580].

It is unnecessary in this connection to discuss the question of when the militia of a state passes from under the control of the state to that of the national government, as it would lead to no definite conclusion on the real questions involved in this action. The general rule, as established by the authorities, is well stated in the last case above referred to, and it is evident that these companies under consideration, if not private companies of the state, are a part of the militia of the state ; and, having found that they are a part of the militia of the state, it follows from the various decisions in this state, that the expense of maintaining them and providing quarters for them and caring for those quarters is a part of the state expense that must be raised by a state tax.

Our conclusion is, that the ordinance in question is unauthorized and invalid, and the injunction against the payment of the expenses of the janitors under the ordinance is made perpetual.


author: SIBLEY, J.

text:
    MUNICIPAL CORPORATIONS — SIDEWALKS.
    [Fairfield (4th) Circuit Court,
    January Term, 1903.]
    Voorhees, Donahue and Sibley, JJ.
    Thomas B. Cox, Jr., v. Lancaster (City).
    1. Resolution of Council Locating Sidewalk.
    The council of a city may prescribe, by resolution, that portion of the street ■which shall be used as a sidewalk.
    2. General Acceptances of Dedication — Effect Upon Line of Sidewalk Marked in Plat.
    An ordinance of a city, general in its terms, accepting an addition thereto, is not tantamount to an act of its council approving and fixing the line of the sidewalk of a street marked bv the dedicator in the plat of such addition. To have such effect more than a general acceptance must be shown. It must clearly appear that the council intended to make the line indicated the line of division between the street and sidewalk.
   SIBLEY, J.

(Orally.)

I need not take time to refer formally to the pleadings in the case. This is an action in equity seeking to enjoin the defendant, Cox, from proceeding to lay down a curbstone on a street in the city of Lancaster, whicb he had dedicated. The contention of the city is that his act is in derogation of its rights, as exercised by the council, in determining where the curbline of the pavement should be located and the curbstone placed.

There is no dispute as to the facts. It appears from the records and the evidence that some time previously to this period Mr. Cox made an addition to the city. In the plat filed, he not only indicated the lines of the street in question, but marked on the street a line for the pavement and showed where it should extend, and the curbstone line fall. On this line, afterward, and before the injunction was allowed he proceeded to put the curbstone.

This plat was accepted by an ordinance of the city, so as to make this a valid addition to the city of Lancaster. Nothing was specified in the ordinance in regard to the sidewalk. There is no claim here that the ordinance of acceptance was anything more than general in its terms. The contention by the defendant is predicated upon the proposition that an acceptance of the dedication, with the line of the sidewalk marked on the plat was tantamount to an action of the council making it the line of the walk. This is where the controversy lies in the first instance. Then it is further claimed by the defendant, that the resolution passed regarding the improvement of the street and marking out another curb line, varying a short distance from the one on the original plat of the addition, by not attempting to repeal or revoke what it is claimed was the effect of the former action, is void and of no effect; hence that it does not entitle the plaintiff to relief such as it seeks in debarring the defendant from laying the curbstone on the line of the plat.

I think this is a sufficient statement. I may say, however, there is no claim here that if the resolution had been an original action in the matter of establishing a sidewalk, it would not have been sufficient for its purpose.

This resolution of the council falls, as we think, in that class of municipal legislative action that may be done by resolution as well as by ordinance. It is of a permanent nature; it does not operate temporarily ; it operates until some further action is taken to revoke it. It is local also, relating as it does to a street in one portion of the city. Hence, it comes within that policy of the municipal statutes of the state as to giving notice to those only who may be affected by that form or mode of action.

On the other hand, in the case of an ordinance, in order to render it effective for the purposes for which it may be designed, it must be published.

We think it was within the proper legislative authority of the council to prescribe the portion of the street which shall be used for a sidewalk, and that this resolution is effective for that purpose, if the contention with regard to the dedication, and the acceptance by the council, does not affect the resolution in consequence of its not having revoked the earlier action.

This depends, we think, upon a single proposition; that is, whether one who is to make an addition to a city, in which is included a street, cannot only dedicate a portion of his land for street purposes, but can dedicate it specially as a sidewalk. It is perfectly settled that a sidewalk is a part of a street, and that the control of the city council over the streets and sidewalks alike is plenary, without any limitation except such as is imposed on the general powers of the body.

How is it now under the statute in respect to a dedication ? What may a man dedicate in a street? Can he so dedicate it as to determine what part shall be apportioned to the street, and what to a sidewalk, thereby in effect doing for the street in respect to its improvement and use, what the statute exclusively empowers the council to do ? It is not contended by the defendant that this can be done against the will of the council. The proposition is that having accepted the dedication with a line marked indicating the sidewalk, this is equivalent to an act of the council approving what was done by the owner of the land in fixing that as the line of the sidewalk. But we do not reach that conclusion. The section in regard to dedication is Sec. 2597 Rev. Stat., as follows:

Section 2597. “When any person wishes to lay out a hamlet or village, or subdivision or addition to any municipal corporation, he shall cause it to be surveyed, and a plat or map of it made by a competent surveyor; in which plat or map shall be particularly described and set forth the streets, alleys, commons, or public grounds, and all in-lots and out-lots and fractional lots within or adjacent to such hamlet or village, the description to include the courses, boundaries and extent.”

To us it seems as if the full extent of the power of one making an addition has been exercised when' he simply dedicates land for street uses. In order to make the contention of the defendant good, he must be able to go further than a general acceptance — must show an ordinance which in effect, if not in terms, makes it clear that the council in its action intended to make a line indicated upon the plat the line of its sidewalk in the division of its street.

Here the terms of the ordinance are general. The city council cannot be barred from its right to control the streets, unless it has done something by ordinance which would require a revocation or repeal. Can it be said in reason, that simply because the party indicated on a plat, that which the law required him to make out, when there is no provision for his marking the line of a sidewalk, that the city council in ac.cept.ing the street thereby fixed that line as the line of the walk ? We think no such effect can be given to the acceptance unless the action of the council is definite and clear.

That does not so appear in this case. Therefore, the defense sought to be made fails. Consequently, the relief which the city seeks by injunction against further action in putting the curbstone on the line indicated upon the plat, rather than the line required by the resolution, should be granted.

The judgment of the common pleas court is therefore affirmed.


author: LAUBIE, J.

text:
    INSURANCE — FIRE.
    [Ashtabula (7th) Circuit Court,
    January 31, 1902.]
    Burrows, Uaubie-'and Cook, JJ.
    Eureka Fire & Marine Insurance Co. v. Wm. Gray.
    1. Delay in Furnishing Proofs of Ross not Available to Insurance Company, When.
    Delay in furnishing proofs of loss on a fire policy requiring such proofs to be forwarded to the company within a reasonable time, but imposing no penalty for failure to do so except that payment cannot be enforced until such proofs are furnished, does not affect the rights of the insured to recover on the policy, notwithstanding the proofs are not filed within a reasonable time.
    2. No Recovery in Action for Total Doss Unless Proven — Partial Loss —Charge.
    Under Sec. 3643 Rev. Stat. prescribing the extent of liability upon a policy of fire insurance in cases of total loss, the amount to be recovered is a matter of public policy, and cannot be waived, nor arbitrated unless the loss is a partial one. Hence, in an action for the total loss of a building, in which the defendant set up an award, which is not denied, no recovery can be had unless a total loss is proven, and the only question for the jury to determine is whether the loss is partial or total.
    Heard on Error.
   LAUBIE, J.

The Eureka Fire & Marine Insurance Company v. Wm. Gray is a proceeding in error to reverse a judgment obtained by Gray upon a policy for the loss of a building, and in which the recovery was for a total destruction and the value of the building as mentioned in the-policy.

Various defenses were set up, only one of which need be noticed, to-wit, an agreement to arbitrate and an award by the arbitrators.

Exceptions were taken to certain testimony offered upon the part of the plaintiff below in regard to the proofs of loss, and what had taken place at the time the agreement to arbitrate was signed, no part of which was prejudicial to the defendant, because the only issue as to the proofs of loss was as to time in which they were submitted to the company. There was no provision in this policy which made it void, or which provided that no action could be brought upon the policy if proofs of loss were not submitted within a reasonable time. While it is stated in the policy that proofs of loss must be forwarded within a reasonable time, the only penalty for failure to do so is that payment of the loss will not be made until proofs of loss are furnished. They were forwarded in this instance some months after the fire, and even if they were not forwarded within a reasonable time, as the only penalty was that the loss should not be payable until they were furnished, all these exceptions in that behalf were immaterial, and the answers to the questions were not prejudicial to the defendant below. ,

As to the matter of the arbitration and award set up by the company, there was no denial by the plaintiff below, and, hence, on that account, unless there was a total loss, no recovery could be had, as the action was not upon the award. The Supreme Court of the state has held that the provision of Sec. 3643 Rev. Stat. in regard to the amount to be recovered in case of total loss, is a matter of public policy, and cannot be waived by the parties, but that would not apply if it was but a partial loss.

Where there is a partial loss only, parties may agree to submit the question to arbitrators to determine the amount of the loss, as was done in this case; but where the loss is total, the statute fixes the amount of recovery to be the value of the building as specified in the policy, and although the parties may have submitted to arbitration the question of the amount of the loss, the assured cannot be held to be bound by the award. This was recognized as the law by the court in its charge, and the jury were instructed that there could be no recovery in this case unless the evidence satisfied them that there was a total loss; and the court defined what a total loss was, and told the jury the amount that they must render judgment for in case they found there was such total loss. So, under the instructions which the court gave to them, the jury found that there was a total loss, and the evidence discloses conclusively that the loss was total. The evidence on this point submitted to the jury showed that even the walls that were left would be of no particular value in rebuilding. So far as the charge of the court is concerned, the court gave substantially the request of the defendant below, and gave instructions that were prejudicial to the plaintiff and in favor of the defendant upon the question of the proofs of loss. No such charge ought to have been given. The only question which should have been submitted to the jury was whether the plaintiff had proved a total loss or not.

The judgment of the court below will be affirmed.


author: LAÜBIE, J.

text:
    ELECTIONS — BALLOTS.
    [Columbiana (7th) Circuit Court,
    1902.]
    Burrows, Lauhie and Cook, JJ.
    State ex rel. Figley v. George W. Conser.
    L Quo Warranto Lies to Contest Election of Township Officers.
    Section 21, Art. 2, of the constitution, which provides that the general assembly shall determine by law, before what authority and in what manner the trial of contested elections shall be conducted, does not of itself, in the absence of any statute passed under its authority, change the mode of proceeding in such cases, and quo warranto, which was the proper proceeding before the adoption of the constitution, is still such, unless superseded by statute. Hence, there being no provision in the statute for the contest of the election of township officers, quo warranto is the proper proceeding to determine the validity of the election of a township trustee.
    2. Action of Judges of Township Elections not Conclusive.
    The purpose of the Australian ballot law, Sec. 2966-13 Rev. Stat. et seq., is to secure an elector the exercise of that inherent and invaluable right of the elective franchise, and protect him from the fraud, mistake or misapprehension of the judges of election. Hence, the action of the judges of a township election in rejecting and destroying ballots is not final and conclusive, but may be reviewed in a proceeding to contest such election.
    3. Right to Contest an Election — mere Inference of Statute will not Deprive.
    The right to contest an election for fraud or mistake has always been held an invaluable one as a matter of public policy, and a statute will not be construed as repealing or abridging this privilege unless such an intention is clearly expressed. It certainly cannot be done by mere inference.
    4. Parol Evidence of Contents of Ballot Competent in Election Contest.
    The rule that where the best evidence has been destroyed, or it is impossible to produce it in court, the next best may be resorted to, applies to ballots cast at a township election, and the contents of ballots rejected and destroyed by the judges at such an election may be proved by parol.
    5. Writing in Name of Candidate Under and Partly Over Another Candidate’s Name Erased, Requires Counting.
    Under Sec. 2966-35 Rev. Stat., which declares that “ no ballot shall be rejected for any technical error which does not make it impossible to determine the voter’s choice,” a ballot upon which a black pencil line is drawn through the name of a candidate and the name of an opposing candidate written near to and partly over it, must be counted for the latter candidate, although no cross-mark appears opposite the name of the latter.
    O. Candidate not Estopped to Contest Election — When.
    A candidate for office at a township election, who is present when the ballots are counted and makes no objection to the rejection of certain ballots, which, if counted for him, would cause his election, and declares himself satisfied with the result of the election, is not thereby estopped to contest the election.
    7. Writing in Name in Blank Space for Designated Office, Valid.
    An Australian ballot upon which there is a ticket containing no names of candidates, blanks being left under the printed designation of each office, becomes a valid ballot for a person for any office when his name is written in the blank beneath the designation of that office.

      8. Writing Name with Blue Pencil Does not Defeat Ballot.
    Although Sec. 2966-35 Rev. Stat. provides that “ all marks upon the ballot must be made by a black lead pencil,” a ballot containing a candidate’s name in blue pencil will be counted for such candidate, whether contestant expressly consents that it may be.
    Quo Warranto.
    George W. Conser was declared elected to the office of trustee in Hanover township by a majority of one in the spring of 1902. George Figley, his competitor for the office, had five votes which the judges refused to count. He commenced a contest proceeding in the nature of a quo warranto.
    W. G. Wells, for plaintiff, cited:
    Construction of Secs. 1, 6 and 21 of the constitution. State v. Marlow, 15 Ohio St. 114, 133.
    When no specified mode of contest is given quo warranto applies. State v. Marlow, 15 Ohio St. 114; State v. Harmon, 31 Ohio St. 250; State v. O’Brien, 47 Ohio St. 464 [25 N. E. Rep. 121]; State v. McLain, 58 Ohio St. 313 [50 N. E. Rep. 907]; State v. Water Co., 3 Circ. Dec. 30 (5 R. 58); State v. Funk, 8 Circ. Dec. 782 (16 R. 155).
    Ordinarily the mistake of the officers of election or the canvassers may be corrected, and proof is admissible to show such mistake. 10 Am. & Eng. Enc. Law (2 ed.) 840; Sinks v. Reese, 19 Ohio St. 306 [2 Am. Rep. 397] ; Howard v. Shields, 16 Ohio St. 184; Phelps v. Schroder, 26 Ohio St. 550; State v. Luy, 79 N. W. Rep. 776 [103 Wis. 524]; State v. Pierce, 35 Wis. 93; Davis v. Harper, 42 S. W. Rep. 788 [17 Tex. Civ. App. 88]; Dixon v. Orr, 4 S. W. Rep. 774 [49 Ark. 238; 4 Am. St. Rep. 42]; Young v. Deming, 33 Pac. Rep. 818 [9 Utah 204]; Spidle v. McCracken, 25 Pac. Rep. 897 [45 Kan. 356].
    W. S. Potts, for plaintiff, cited:
    Legislative intent in the Australian ballot law. State v. Tanzey, 49 Ohio St. 656, 661 [32 N. E. Rep. 750].
    J. A. Martin, for defendant, cited:
    Admissibility of parol evidence as to form of ballots cast at election, etc. State v. Tanzey, 49 Ohio St. 656, 657 [32 N. E. Rep. 750]; Oakes v. Finlay, 53 Pac. Rep. 173, 176 (Ariz.); Pusch v. Brady, 53 Pac. Rep. 176, 177; Anderson v. Likens, 47 S. W. Rep. 867 [20 Ky. Law 1001]; Daniel v. Simms, 39 S. E. Rep. 690 [49 W. Va. 554]; Weakley v. Wolf, 47 N. E. Rep. 466 [148 Ind. 208]; Chamberlin v. Wood, 88 N. W. Rep. 109 (S. Dak.); 6 Am. & Eng. Enc. Law (1 ed.) 389, art 7; case* cited by court in Oakes v. Finlay, supra.

   LAÜBIE, J.

(Orally.)

This is a proceeding in quo warranto, brought to contest the election of the defendant, Conser, as township trustee of Hanover township, in this county.

It seems that at the election in question there were three tickets on the ballot, known as the Australian ballot. There was a republican ticket, a democratic ticket and a citizens’ ticket, each so headed, and each printed in conformity with the laws of the state in reference to the Australian ballot. Conser was candidate for township trustee on the republican ticket, Figley on the democratic ticket, and their names, in accordance with the statute, were printed thereon as candidates, but on the citizens’ ticket there was no candidate’s name for that office printed on the ticket, or any township office; but in accordance with the statute, sufficient blanks were left under the printed designation of each office, so that the voters might write the name of such candidates as they desired to vote for.

In this case, according to the count as made by the board, Conser received one vote more than Figley, and they declared Conser elected. There were five or six ballots rejected, and without any dispute between the judges ; and these ballots, with the others, were burned in accordance with the provisions of the statute in that regard.

It is claimed upon the part of the defendant that this proceeding in quo warranto cannot be maintained ; that quo warranto will not lie and is not a proper proceeding to determine the validity of the election of a township officer. Reference is made to the constitution of the state, and to decisions of the Supreme Court in regard thereto as to the manner of contesting elections. The constitutional provision (Sec. 21, Art. 2) is that the legislature shall provide for the contest of elections ; but the legislature has not done so in regard to the election of township officers.- So that there is no statute of the state which provides, or attempts to provide for a contest of election of township officers. That being the case, we are at a' loss to know why this ancient proceeding in quo -warranto cannot be brought. It is one which is authorized by the constitution of the state (Secs. 2 and 6, Aft. 4), and may be brought, theretofore, in any case where it might have been brought, unless restrained by some other provision of the constitution. Prior to the adoption of the present constitution it was a proper proceeding to contest the election of officers of the state, and the Supreme Court has held that it is so now, except as modified by the provision of the constitution that the legislature shall provide for proceedings to contest the election of officers of the state. But where the legislature has not done so, does that deprive the courts of jurisdiction in quo warranto in such cases?

In the case of State v. McLain, 58 Ohio St. 313, 322 [50 N. E. Rep. 907], this is said by the eminent judge delivering the opinion :

“ It is argued, however, in behalf of the state, that quo warranto is the appropriate action for the trial of title to an office ; and that by Sec. 2, Art. 4, of the constitution, original jurisdiction in such actions is conferred on this court, of which it cannot be deprived, in any degree, by legislation. But that provision of the constitution should be construed with others in pari materia, and each so restrained as to give harmonious effect to them all. And hence, the jurisdiction conferred by that section is subject.to such legislative control as is authorized by other provisions of the same instrument; and legislation enacted in obedience to such provisions has the same effect as if contained in the constitution itself. In instance of this, by Sec. 21, Art. 2, power is" conferred on the general assembly to provide by law ‘ before what authority, and in what manner the trial of contested elections shall be conducted; ’ and a statute enacted in the exercise of that power was held, in State v. Marlow, 15 Ohio St. 114, to afford the exclusive remedy in such cases, and withdraw them from the jurisdiction of this court in quo warranto, nothwithstanding the latter mode of inquiry, in the absence of such a statute, was the appropriate one in such cases.”

That is, reference is made to the case of State v. Marlow, 15 Ohi-o St. 114, upon the question, as establishing the rule that in the absence of such a‘ statute, quo -warranto is the appropriate remedy in such cases.

So we pass this matter by with the conclusion that this proceeding is properly brought, as there is no statute providing for contest of election of a township officer or township trustee.

As I have stated, the board in this instance declared the vote in favor of Conser, the.republican candidate, by a majority of one ; and as to the ballots that were rejected, as there was no dispute about them, or difference in the minds of the judges, they were burned.

It is claimed on the part of the defendant, Conser, that the action of the judges was final and conclusive, and made so by the provision of the Australian ballot 1aw itself. If this were so, it would be a singular election law; not only a singular one, but an outrageous one, to undertake in such a manner, to defraud, substantially, the electors of a township by the fraud, mistake or misapprehension of the judges of the election. One of the inherent and invaluable rights of a citizen of this country is the elective franchise, and the Australian ballot law (Secs. 2966-13 Rev. Stat. et seg.) was passed especially to protect him in it, so that by no fraud or mistake on the part of the judges of the election, or of politicians and partisans running it, could his privilege be destroyed by taking away from him his vote, or not counting it after it was voted. If the ballot of one citizen may. be rejected by fraud or mistake, and beyond his power to question it, it may be done as to all. And in this case the proposition is well stated, that if a candidate was declared elected by a majority of one vote, while there were four or five votes uncounted that should have been counted for his opponent, then the majority of the electors in that township were defrauded of their rights, and the judges of the election usurped their power and their right of the elective franchise and took it away from them, and conferred the office upon the man whom the majority voted against. And it is claimed that by inference — not by any direct language in the Australian ballot law, but by a mere inference — that this precious right may be invaded, and the majority of the electors of a township, county or the state (because if it applies to one it applies to all) may thus be defeated of their intention and of their rights in an election of officers of such township, county or state by the judges through fraud or mistake.

The English language is not so devoid of words that if the legislature intended to destroy the right of contesting an election in such a case, it could not have expressed it, and the legislature has not expressed it in direct language. Such result is claimed only by inference from the language used; that, as there was no dispute over the rejected ballots, or differences in the minds of the judges as to them, the burning of such ballots ended the matter; that the legislature having directed that such ballots should be burned, the inference must be that the legislature intended that the action of the judges in their rejection should be final and conclusive. If the legislature so intended, it had the words at command to express that intention, and would have done so, and not left such new and important provision to mere inference.

The right to contest an election gained by fraud or mistake is one that has been always held in this state as an invaluable one as a matter of public policy, and if the legislature intended to repeal that inestimable privilege and to establish another and a different rule, the English language is-broad enough to have enabled it to express that intention beyond any question or dispute. The legislature_has not done so, and its failure to do so in express terms has convinced us that the legislature did not have any such intention.

Another proposition of defendant’s counsel is that parol evidence is not competent in this case to prove the contents of these rejected and destroyed ballots. In cases of this kind, it has always been held that where the ballots are destroyed, or where it is impossible to produce them in court, the next best evidence is competent; following the general rule that where the best evidence is unattainable, the next best may be resorted to. The ballots were destroyed, and admitted to be so, and hence could not be produced, and the universal rule must prevail, that parol evidence may be admitted of their contents.

The question, therefore, is, should these ballots be counted to ascertain whether or not the board of elections had arrived at a correct result in the determination of the poll ? I have already said that there were two candidates for this office — two party candidates — Conser on the republican ticket, Figley on the democratic ticket.

The Australian ballot law, Sec. 2966-19 Rev. Stat., provides that the name of any candidate cannot go upon the ballot twice. If there are two parties that wish to nominate the same individual for the same office, they may do so, but his name cannot go upon the ballot on the ticket of each. It can only go upon the ballot under the head of one ticket. And so on this citizens’ ticket neither Conser’s name nor Figley’s name could be printed, and was not. But on this citizens’ ticket there was a blank space under the printed words, “ township trustee, ” so that the citizens of the village of Hanover might write the name of Conser or Figley upon the ticket if they wished to vote for either for township trustee.

It is admitted on the part of the state that there was one ballot rejected by the board of elections that should have been counted for Conser. His name was written on the ballot in blue pencil, contrary to the provision of the statute that it should be in black, but it is conceded on the part of the state that that vote ought to have been, and may be counted for Conser.

On the other hand, there were two ballots that were cast on the republican ticket which, it is claimed upon the part of the state, should have been counted for Figley, and were not. The evidence shows conclusively that whoever voted those tickets intended to vote for Figley for township trustee. It shows conclusively that the voter first erased Conser’s name by drawing a black pencil line through it, and then wrote the name George Figley below it. The judges concede that they rejected it because the upper part of the capital letters G and F in Figley’s name ran up above the blank over the printed name of Conser. And partly from the whole evidence it appears it was only because of that fact that they rejected those two ballots. It is almost impossible to believe that a voter who ran pencil lines across the name of the printed candidate, and beneath his name, or over it, if you please, wrote the name of the opposing candidate, did not intend to vote for that opposing candidate. And we think that those two tickets should be counted for Figley irrespective, too, of the question whether there was a cross-mark made in front of Figley’s name on the tickets or not.

The statute provides that the elector may write in the name of any candidate he favors, and he may write it either in a blank space, where there is no candidate’s name, or over the name of the ticket’s candidate. And the latter part of Sec. 2966-35 Rev. Stat. declares that no elector’s vote shall be rejected unless it is impossible to determine who he intended to vote for. So that where he writes the name of his candidate in its proper place, who would say that the elector did not intend to vote for the individual whose name he wrote in under the proper designation of the office, whether he put the cross mark to the left of it or not. Would it be impossible, in such a case, to determine who he intended to vote for ?

In regard to the citizens’ tickets, it is claimed that there were three of those where Figley’s name was written in under the appropriate printed head of township trustee, indicating that the voter intended to vote for him. While there is some conflict as to the number, there is no dispute that there were two at least of these where Figley’s name was written in its proper place, showing that the electors intended to vote for George Figley for township trustee.. And the judges of the election honestly made a mistake in rejecting these ballots. In fact, the majority of them come here as witnesses and admit that they did make a mistake. They were honest in their action, but that does not afftct the right of the elector to have his vote properly counted; and we think, therefore, that these four votes for Figley were erroneously rejected, which would give Mr. Figley a majority of two votes.

It is claimed further that Figley cannot take advantage of this error, that he is estopped because he was present and made no objection to the rejection of these votes, and declared that he was satisfied with the result, and had run better than he expected. That he made no such objection and was honestly mistaken, as we think the judges were, as to the legality of the rejection of those ballots, than the mistake of the judges would no more bar this proceeding when he discovers the true state of affairs. When he finds out the true state of affairs, what rule of law is there that would estop him from attempting to secure his rights? Certainly this is not a case of estoppel. In this proceeding there was a mistake on the part of the judges, and Figley must be declared elected, and the relief is granted as prayed for by this relator.

A decree may be taken accordingly.