author: VOORHEES, J.

text:
    CORPORATIONS — PLEADING—STREET RAILWAYS.
    [Stark (5th) Court of Appeals,
    January Term, 1913.]
    Voorhees, Shields and Powell, JJ.
    State ex rel. Charles Krichbaum, Pros. Atty. v. Northern Ohio Trac. & L. Co.

      1. Assignment of Interurban Railway Franchise not Defeated by Omission of Words of Transfer in Grant.
    A resolution adopted by a board of county commissioners, granting to the person nam'ed therein the right to locate, construct, maintain and operate an electric railway along a public highway, is not any the less a continuing contract because of the omission of terms in the grant which authorize a transfer to others of the rights therein granted; but the covenant in such a case must be regarded as a grant which runs with the land or subject-matter cf the contract, and the addition of the word “assignee” or “assigns” is not necessary to make the covenant effective to all persons to whom the property or rights may pass.
    2. Valid Interurban Railway Franchise without Time Limit Irrevocable after Rights Vested.
    When a franchise or contract rights have been granted by an exercise of power duly conferred and such rights have become vested, no amendment or alteration of the charter or contract can take away the property cr rights so vesting; and where the grant is without a time limit, and there are no« limitations upon the powers of the commissioners making the grant, the rights so conferred are not a mere grant at will, hut are indeterminate or perpetual, and can not be terminated by the commissioners, nor can such rights always be revoked by the general assembly.
    '3. Excessive Rates of Fare of Interurban Railway Exclusively in Public Service Commission not County Commissioners Granting Franchise.
    Where there is no complaint against a company, occupying a public highway with an electric railway line, of omission to do any act stipulated to be done or violation of any of the privileges granted, and the only allegation upon which it is sought to revoke the grant is the 'charging of excessive rates of fare, the relators have no- standing in court, but must seek relief before the state railroad commission.
    4. Implied Conditions not Read into’ Franchise Depriving Successors of Franchise Rights of Original Grantee.
    Moreover, where the .grant contains no express condition of forfeiture, no implied condition can be read into the contract which would deprive successors of the original grantee of the right to exercise the privileges so granted.

      5. Statutes of Limitation not Applicable in Franchise Ouster Proceedings to Facts not Appearing in Petition.
    But demurrer does not lie against a petition to oust a corporation from its franchise, where the petition does not allege that the action was commenced within five years after the act complained of was done or committed, or that the company has exercised the franchise for twenty years, exclusive of the time it was enjoyed by predecessors in title.
    [Syllabus by the court.]
    Quo Warranto.

      Hubert C. Pontius, Pros. Atty., and Frank N. Sweitzer, Asst. Pros. Atty., for plaintiff in error:
    Cited and commented upon by the following authorities: Osborn v. Bank, 61 Ohio St. 427 [56 N. E. Rep. 197] ; Yore v. Woodford, 29 Ohio St. 245; Huston v. Craighead, 23 Ohio St. 198; East Ohio Gas Co. v. Akron, 81 Ohio St. 33 [90 N. E. Rep. 40; 26 L. R. A. (N. S.) 92; 18 Am. Cas. 332]; Gas Light Co. v. Zanesville, 47 Ohio St. 35 [23 N. E. Rep. 60] ; Public Service Corp. v. Lighting Co. 67 N. J. Eq. 122 [57 Atl. Rep. 482]; 1 Page, Contracts p. 21; 36 Cye. 1363; Wabash Ry. v. Defiance, 52 Ohio S.t. 263 [40 N. E. Rep. 89] ; State v. Telephone Co. 5 Circ. Dec. 311 (11 R. 55) •. Booth, St Rys. p. 61, Sec. 33; 1 Dillon, Mun. Corp. See. 31; Wabash Ry. v¡ Defiance, 167 IT. S. 88 [17 Sup. Ct. Rep. 748; 42 L. Ed. 87] ; Cleveland Elec. Ry. v. Cleveland, 24 IT. S. 116 [27 Sup. Ct. Rep. 2Ó2; 51 L. Ed. 399]; Blair v. Chicago, 201 IT. S. 400 [27 Sup. Ct. Rep. 427; 50 L. Ed. 801] ; State v. Railway, 24 O. C. C. 609 (1 N. S. 146) ; Munn v. Illinois, 94 U. S. 113 [24 L. Ed. 77],

      Welly <& ATbaugh, for defendant.
   VOORHEES, J.

This is a proceeding in quo warranto instituted under favor of Sec. 12340 G. C., in which it is provided “that nothing in this chapter shall authorize an action against a corporation for forfeiture of charter unless it be commenced within five years after the act complained of was done or committed; nor shall an action be brought against a corporation for the exercise of the power or franchise under its charter which it has used and exercised for a term of twenty years; nor shall an action be brought against an officer to oust him from his office unless within three years after the cause of such ouster or the right to hold the office arose.”

Charles .Krichba'um, as prosecuting attorney of Stark county, Ohio, on August 13, 1912, filed a petition in the circuit court of Stark county, Ohio, alleging in substance that the Northern Ohio Traction & Light Company is a corporation duly organized under the laws of the state of Ohio, and engaged in operating an interurban electric railroad in Stark county, in the state of Ohio, on a public road, or highway known as the Canton-Massillon road between the cities of Massillon and Canton. The defendant is operating said interurban electric railway by virtue of the authority and right, which it claims to have as assignee or transferee under a certain resolution passed by the commissioners of Stark county on or about February 22, 1892, and recorded on pages 17, 18 and 19 of volume 8, commissioner’s journal of Stark county, and which resolution is set out in full in said petition. In said resolution it is resolved, that the right is thereby granted to William A. Lynch, and to such railroad company as he may cause to be incorporated for that purpose, to locate, construct, maintain and operate an electric railroad along either side of said road running between Canton and Massillon between the line of the Canton street railway and the corporate limits of the city of Massillon. Then the petition proceeds to describe the manner of constructing said railway under said resolution and the condition that said William A. Lynch, or the railroad company, before commencing any part of said.work should enter into a bond in the sum of $10,000, conditioned for the faithful performance of the conditions enjoined upon them by said resolution; it being further understood and provided that said William A- Lynch, or the railroad company, before commencing any part of said work, should enter into bond in the sum of $5,000, conditioned that said William A. Lynch, or said railroad company, should keep said county and said board perfectly harmless from. any and all liability to abutting property owners, growing out of the construction of said road. Said resolution was adopted and entered under the minutes of February 22, 1892.

On the margin of page 18 of said commissioners’ record is written, with red ink, “Transferred to Canton-Akron Ry. Co. July 2, 1902. W, M. Beed, Auditor.”

Plaintiff avers that said resolution under which defendant is operating its electric interurban railway is silent as to duration, and is indeterminate, and exists only as long as the parties thereto mutually agree. That the board of commissioners being the same authority originally granting said resolution under which defendant is operating its electric interurban railway, on or about March 27, 1912, adopted by a unanimous vote of the members of said board, a resolution which is set out fully in the petition. Said resolution, among other things, provided that whereas an electric railroad is being operated on the public highway between Canton and Massillon by the Northern Ohio Traction & Light Company, under the right conferred by a former board of county commissioners by virtue of a resolution passed February 22, 1892, in favor of William A. Lynch, and such railroad company as he might cause to be incorporated, said electric railroad is not being operated under any regular franchise. The fare charged by said company at the present time is twenty-five cents per round trip, between Canton and Massillon, or fifteen cents one way, and no transfers are given for transportation on either of the city lines in Canton or Massillon in connection with said above mentioned fare. It is declared in said resolution that in the opinion of said board of commissioners, the sum of ten cents for the fare one way between said cities of Canton and Massillon, with the privilege of a transfer on all lines operated by said company in either of the cities of Canton or Massillon, would be a fair compensation for transporting people the distance of eight miles between the two cities, and that the sum of five cents for the fare one way from Beedurban or any intermediate points to either the city of Canton or the city of Massillon, with the privilege of similar transfer as mentioned above would be a fair compensation for transporting the people said distance. Therefore said board resolves that unless said the Northern Ohio Traction & Light Company comply with the above mentioned matters of reduction of the amount of fare charged for transporting people between the cities of Canton and Massillon and their intermediate points, together with a transfer on the city lines of Canton and Massillon, on or before April 27, 1912, the said grant given to said William A. Lynch, on February 22, 1892, to operate an electric railroad between said cities of Canton and Massillon, is hereby declared terminated and the prosecuting attorney of this county is hereby instructed to take such legal proceedings as may be necessary to have said grant made null and void, and the said electric railway removed from said public highway between said cities of Canton and Massillon.

Immediately upon the adoption of said resolution said board notified said defendant company of its election to terminate said franchise unless certain conditions, in said resolution and notice contained, were complied with by said defendant by April 27, 1912. It is averred that said defendant company failed to comply with the conditions named in the notice and resolution by April 27, 1912, and that said election to terminate the right of the defendant to operate said interurban railway became operative on said April 27, 1912. It is further averred that the defendant has wholly refused', and still refuses and fails to comply with the conditions of said resolution and notice. It is further averred that on or about the — day of April, 1912, said board of commissioners reaffirmed its election to terminate said franchise and the right of defendant to operate its electric interurban railway between Massillon and Canton, by adopting, by a unanimous vote of the members of said board, a resolution which, among other things; provided that, a proposition is submitted to said board on April 26, 1912, at 3:40 o’clock P. M., by Mr. Charles Currie, general manager of the Northern Ohio Traction & Light Company, that the public highway between the cities of Canton and Massillon be widened from the width of 66 feet to the width of 100 feet; and further provided that a franchise be given the defendant company for a double track electric railway to be constructed in the center of the highway, with center pole construction, with the further provision that said franchise extend for a period of twenty-five years, and that the cities of Massillon and Canton extend their franchises to said company so as to expire at the same time as the said proposed twenty-five year county franchise expires. If said proposition were accepted by said board of commissioners said company further proposed certain terms to be incorporated in said proposed twenty year franchise. It is further averred that a majority of the owners of land lying along said public highway are opposed to any widening of said road and it would be a useless and extravagant expenditure of the public funds of the county and would be doing a wrong to the taxpayers over the entire county for said board to pay one cent towards said widening of said public highway for the purpose of giving said defendant company a double track; on said highway. And it is further averred that whereas said board had formerly passed a resolution on March 27, 1912, which provided that unless the said company meet the demands of said board in regard to the question of fare, etc., a former resolution passed in February, 1892, whereby said company was given the right to construct and operate said electric railway, as at present operated, would be annulled and rescinded. Therefore the said proposition as submitted by the said defendant company was rejected. It is further averred that whereas, in consideration of the fact that the defendant company is operating an electric railway on the public highway between the cities of Canton and Massillon, and since submitting the above proposition has made no statement or agreement to the effect that the demands of this board, as set forth in a resolution passed March 27, 1912, would be complied with, therefore that in the event that said demands of the board are not met by said company on or before the time mentioned in said resolution of March 27, 1912, the prosecuting attorney be and is hereby instructed to immediately proceed to have injunction proceedings tiled against said company restraining said company from operating said electric railway on said public highway between the cities of Canton and Massillon or running cars thereon, and to further compel said defendant •company to remove said railway from said public highway. It is further averred that said resolution provided that the same be contingent upon and in accordance with the conditions of said resolution passed by said board on March 27, 1912. It is further averred that shortly after the passing of said resolution of said commissioners, recorded in volume 8, commissioners’ journal aforesaid, that the Canton-Massillon Electric Railway Company, an Ohio corporation, was organized by William A. Lynch under the terms of said grant, and it did operate on said franchise and grant. The plaintiff further avers that the rights, and privileges contained in said grant were personal to said William A. Lynch, the grantee, and the Canton-Massillon Electric Railway Company, organized by said William A. Lynch, for operating under said grant and franchise could not be assigned under the terms and conditions of said grant without the consent and authority, and additional action of said board of commissioners. It is further averred that at the time of the assignment to the Canton-Akron Railroad Company said consent was not granted.

The plaintiff therefore contends and asks that, by reason of the matters and things set forth in the petition, the defendant-company be required and compelled to answer by what warrant it claims to have the use of and to enjoy the rights, privileges, and franchises, used and exercised by it on the operation of its said interurban electric railroad between the cities of Canton and Massillon; and that it be ousted from exercising the same and be 'compelled to remove its tracks and switches'.from said road between said cities.

To this petition, upon leave granted to the defendant, it filed a special and also a general demurrer to said petition, setting forth in the special demurrer that:

1. That this action was not brought within the time limited for the commencing of the same.

2. That this action is barred by laws of Ohio, and was not commenced within the time prescribed and provided for therein, and is therefore barred by the statute of limitations placed upon such action.

For its general demurrer the defendant sets forth five grounds, namely:

1. That the petition does not state facts sufficient to constitute a cause of action against the defendant.

2. That the petition does not state facts sufficient to entitle the plaintiff to the relief prayed for.

3. That this court has not jurisdiction to hear and determine this action or to grant the relief prayed for therein.

4. That this action is barred by the statute of limitations.

5. That the plaintiff has no legal capacity to try or to. bring suit.

This cause was submitted to this court on the demurrers of the defendant.

The plaintiff sets out at great length the various proceedings had by the commissioners of this county in regard to the occupancy of said road by said defendant company.

The action is a very important one, not only as to the property rights involved but also as to the interests of the general public therein. The case has been ably argued, both by written briefs and in oral argument. In the short time that the court has had to consider the questions submitted on the demurrers, it can not be expected that the court will enter into extended reasons for the conclusions it has reached, but its conclusions will have to be in many respects dogmatically announced for want of time to give the reasons therefor. In stating the facts set forth in the petition we have epitomized on analysis of the petition in order to present the material questions raised by the demurrers in the ease.

It is contended by the plaintiff that the’ resolution adopted by the board of commissioners on February 22, 1892, granted to William A. Lynch and to such railroad company as he might cause to be incorporated for that purpose the right to locate, construct, maintain and operate an electric railroad along said highway running between the cities of Canton and Massillon.

It is contended that this resolution, if it is to be considered as a contract, is only personal to William A. Lynch, and therefore could not be transferred or assigned by him to any other person or corporation, for the reason that it lacked terms in the grant that would authorize the transfer by him of said privileges granted to him by the resolution of February 22, 1892. In other words, the omission of the words “successors or assigns” made the contract or grant only personal to said William A. Lynch and an assignment or transfer of the grant by him to any person or corporation would be void.

The covenant or grant given by the county commissioners, to said William A. Lynch, and to such railroad company as he might cause to be incorporated to locate, etc., an electric railroad on said road or highway, was authorized by a statute in. force at the time the grant was given, said statute being Sec. 3438 B. S., now Sec. 9101 G. C., and is a covenant or grant that runs with the land or subject-matter of the contract, and the. word “assignee” or the word “assigns” is not necessary to-mate the covenant effective as to all persons to whom the property or rights' pass.

In 1 Smith, Lead. Cas. 208, it is said:

“It may be observed that the question of whether it is necessary to covenant for assigns as to anything not in esse at the time of the covenant discussed in the first and second resolutions of the leading case, has generally been passed over lightly in this country, and the use of the word ‘assigns’ considered of little importance, if an intention that the covenant run can be gathered from the whole instrument.”

In Masury v. Southworth, 9 Ohio St. 340, 352, the Supreme Court, in passing upon the question as to the necessity of the use of the words “assigns” in connection with the covenant which runs with the land, said:

“The important consideration is, whether the covenant is annexed to the estate and runs with the land. If this be so, the rights and liabilities of those who take the estate and possess the land during the term, flow from a privity of estate, and not from any assignment of right or contract. If the covenant cannot, or does not, run with the land, no words of assignment can. create a privity of estate; if a privity of estate be created, no-words of assignment are necessary.”

The language of the grant given to William A, Lynch in the resolution of February 22, 1892, granted to him and to-such railroad company as he might cause to be incorporated, the. right to locate, construct, etc., an electric road on said public highway. We are ol the opinion that it was not a mere personal grant to Mr. Lynch to be confined to his rights under the grant, but that the grant in this case, under this resolution, was a grant securing to Mr. Lynch the right to transfer the same to a third person or to a corporation.

There being no conditional limitations upon the powers of the commissioners granting the franchise, they could grant privileges which were perpetual or for a definite period which might extend beyond the corporate life of the grantee. Since in this grant there was no time limit the privileges are perpetual. When under power in a franchise or contract rights have been acquired and become vested, no amendment or alteration of charter or contract can take away the property or rights vested under the legitimate exercise of the powers granted.

“Property rights acquired under and by virtue o-f franchises thus granted are perpetual, unless otherwise limited in the grant; and there was no limit in this case, and this franchise is not void, as a consequence thereof. ’ ’ Booth, St. Ry. Sec. 17, and authorities there cited.

It is further contended that the grant to Mr. Lynch was without a time limit and therefore a mere grant at will, and that the commissioners could terminate the same at any time they saw proper to do so.

In support of this contention on the part of the plaintiff, we are cited to East Ohio Gas Co. v. Akron, 81 Ohio St. 33 [90 N. E. Rep. 40; 26 L. R. A. (N. S.) 92], as sustaining this contention.

We are of the' opinion that the case of East Ohio Gas Co. v. Akron, supra, does not apply in this ease. That a corporation like the East Ohio Gas Company is of a different nature than a corporation for public service, such as a railroad company or an electric railroad company, and therefore the principles announced in East Ohio Gas Co. v. Akron, supra, do not apply, but rather the principle recognized in the case of State v. Railway, 24 O. C. C. 609 (1 N. S. 145), does apply in this case. In that case it is held, that a franchise or privilege to construct and operate said railway granted and consented to without limitation of time, is perpetual, subject only to be terminated by the general assembly, under Art. I, See. 2, or Art. XIII, Secs. 1 and 2, of. the constitution of the state. Consent given without limitation of time to a corporation is not always revocable even by legislative authority. The case of Detroit v. Plank Road Co. 43 Mich. 140 [5 N. W. Rep. 275], we cite, in which Judge Cooley says:

“It can not be necessary at this day to enter upon a discussion in denial of the right of the government to take from either individuals or corporations any property which they may rightly have acquired.”

The commissioners in this case, having granted to William A. Lynch the right to occupy said public highway, fixing no time limit for its occupancy and permitting improvements to be made with reference thereto, are without authority to revoke said right and the grant is indeterminate.

The only complaint made by the commissioners against the defendant company is that it charges an excessive rate of fare between Canton and Massillon for a round trip, and for a single trip, and no privileges of transfers is given. In other words, there is no complaint by the commissioners of any violation of any privilege or grant given to Mr. Lynch or a corporation to be organized by him,' or its successors, as to any act done by it, or the omission of any act to be done by it, but the complaint is as to the excessive charges for fare complained of in the resolution of March 27, 1912.

As a relief for this complaint, the legislature has provided, we believe, the exclusive remedy for such complaint, and that is to apply to the railroad commission under favor of the act of the legislature found in 102 O. L. 553, 556 and 557, and if we are right in this conclusion the plaintiffs have no standing in this court and are not entitled to the relief prayed for in their petition.

But, if we are wrong in this conclusion there is another reason why the plaintiff is not entitled to the relief asked for in his petition, and that is for a forfeiture of the charter and grant under which said defendant is operating said railroad. Under the resolution of February 22, 1892, there is ño provision or condition of forfeiture contained in said resolution, and the resolution, being a contract between the parties, unless it provided an express condition of forfeiture, no condition of forfeiture by implication can be exercised by the board of commissioners. If the contract made with the commissioners and Mr. Lynch, by resolution of February 22, 1892, is to be considered as a contract of lease, and makes no provision for forfeiture for failure to comply with any express condition, it can not exercise the right of forfeiture by any implied covenant or condition not expressed in the resolution or contract. As no conditions of forfeiture are expressed in the resolution or contract none can be implied. There is no implied or express covenant in the resolution of February 22, 1892, for a forfeiture of said grant for a breach of any covenant contained therein. Therefore, we hold that there is no ground for a forfeiture of the grant secured by Mr. Lynch or enjoyed by said defendant company as his successor or assign, but even assuming that the board of commissioners has the authority to declare a forfeiture of said grant, have they so declared? You can search the various resolutions adopted by the board of commissioners at different periods but you will fail to find any unconditional declaration of forfeiture of said grant, but what they have done has been conditional and uncertain as to forfeiture, and as their pleading is to be tested by the fasts alleged in the petition, let the facts not alleged be as they may, they are to be construed most strongly against the pleader. Therefore the fact not being alleged that there has been a forfeiture, in testing it on the demurrer it is to be construed most strongly against the plaintiff, and therefore it is to be construed as though the allegation was that there was no forfeiture on the part of the plaintiff. That being so, the petition does not state facts sufficient to constitute a cause of action in this case.

It is contended by the defendant that the plaintiff’s cause of action is barred by the statute of limitations and our attention has been called to Sec. 12340 G. C., in support of this contention.

Upon a careful reading of this section it will be noticed that nothing contained in the chapter in quo warranto shall authorize an action against a corporation for forfeiture of charter, unless it be commenced within five years after the act complained of was done or committed. As ve have seen the only complaint made in the petition upon which a forfeiture could be based is tbe excessive fare charged by the defendant company, bnt just when said company commenced to charge its excessive rate of fare is not declared by the petition, and as the ground of demurrer for limitation must appear on the face of the petition, it does not clearly appear in this ease as to when the defendant company commenced to charge this excessive rate of fare. Therefore, the ground of demurrer as to the statute of limitations is not well taken. For that reason the same is overruled, as the statute for forfeiture in such ease would require the action to be commenced within five years after the act complained of was done or committed.

It is contended by the defendant that the action is barred by said section on the ground, that the twenty year statute bars the action. The time in which the defendant company has exercised the franchise has not been twenty years, unless the time that the defendant company has enjoyed said franchise can be tacked on to the time exercised by its predecessors in title.

We are of the opinion that this can not be done. That period must embrace the time that the defendant company has enjoyed said franchise independent of the time enjoyed by its predecessors in title.

“The general rule is that possession can not be tacked to make out title by prescription, where the deed under which the last occupant claimed title does not include the land in dispute. It must clearly appear in the deed that the particular premises were embraced in the deed or transfer in whatever form it may have been made.” 1 Enc. Law Proced. 1007.

In other words, where the party occupying is not claiming under any color of title, but simply by occupancy, such party must be in possession during the. required period of limitation. Therefore, it not appearing in the petition that the defendant company has been in possession twenty years without tacking on' to the possession of its predecessor in title, namely, Mr. Lynch and his successors, the defendant is not entitled to the contention that this action is barred by the twenty years’ limitation provided for in Sec. 12340 G. C.

Therefore, the demurrer as to the statute of limitations is overruled; but we hold that the general demurrer is well taken, and that the plaintiff has no cause of action and that the plaintiff has not the legal capacity to bring this, action. Therefore, the general demurrer is sustained on the ground that the petition does not state facts sufficient to constitute a cause of action, and the special demurrer that the plaintiff has not the capacity to bring the action is also sustained.

In the event that the plaintiff does not desire to plead further by amendment, the petition of the plaintiff will be dismissed at the cost of the plaintiff. Exceptions may be noted.

Shields and Powell, JJ., concur.


source: Caselaw Access Project

author: METCALFE, J.

license: Public Domain

text:
    COMPENSATION AND SALARIES — COUNTIES.
    [Guernsey (7th) Court of Appeals,
    April Term, 1913.]
    Metcalfe, Norris and Pollock, JJ.
    E. D. Stone v. State ex rel. Enos, Pros. Atty.
    County Commissioners on Quadrennial Board of Equalization Entitled to Additional Compensation of Three Dollars per Day.
    County commissioners while serving . as members of the-quadrennial county boards of equalization are entitled to the compensation allowed by Gen. Code 5597 as amended 102 O. L„ 279.
    [Syllabus by the court.]
    Error to common pleas court.
   METCALFE, J.

Plaintiff is a member of the board of county commissioners, of Guernsey county. 'While serving on the board of equalization Stone drew the per diem compensation provided by Gen, Code 5597, for services rendered as a member of that board. It is claimed that county commissioners while serving as members of county boards of equalization are not entitled to the additional compensation provided by that section, and that the only compensation to which they are entitled is that provided, by Gen. Code 3001 which fixes their annual salaries. This suit was brought by the prosecuting attorney to recover back the amount paid Mr. Stone as such member of the board of equalization, and judgment was rendered against him in the common pleas court, and he prosecutes error here.

The whole question depends uqon the proper construction of the sections of the general code above referred to. The annual board of equalization was created by R. S. 2804 and 2813a provided, for the compensation of the members. IR. S. 897 fixed the annual salaries of the county commissioners, and R. S. 897-2 provides that the compensation fixed by- R. S. S97 “shall be in full payment of all services rendered as such •commissioner.” Rev. Stat. 2S13a provides that each member of the county board of equalization shall be entitled to receive for each day necessarily employed in the performance of his •duties, including his duties as a 'member of the board of revision, the sum of three dollars. Rev. Stat. 2813 provides that the auditor, surveyor and commissioners shall compose the •county board of equalization. So that before the adoption of the general code R. S. 897 fixed the commissioners’ annual salaries, and R. S. 897-2 provided that the salaries so fixed ■should be in full payment for all services rendered as eommissionpr, while R. S. 2813a gave to the commissioners, as members •of the county board of equalization an additional compensation of three dollars per day. The provision of R. S. 897 fixing the annual salaries and the provision of R. S. 897-2 that ■such compensation should be in full for all services rendered as commissioner we find were inserted in- those sections by amendment subsequent to the enactment' of R. S. 2813a, and we are inclined to think that under the rule in Thorniley v. State, 81 Ohio St. 108 [90 N. E. Rep. 144], operated to repeal that section by implication. However that may be on February 14, 1910 the general assembly adopted the general code which is a compilation and revision of the laws in force at that time. The work which Mr. Stoue did, and for which he received the compensation which is sought to be recovered from him in this -action was after the passage of the general code, and the amendments hereafter referred to. In the general code R. S. 897 and 897-2 were reenacted as Gen. Code 3001; and R. S. .2813a was reenacted as Gen. Code 5597. It is undoubtedly the rule that where there is a general revision of statutes and. existing provisions .which may be in conflict are reenacted simply as part of a scheme of codification that they shall receive the same construction as they would have received before-the revision, so that if there had been no further action of the general assembly with regard to these particular sections excepting their reenactment as parts of the general code we think we would be required to hold that R. S. 2813a was repealed by implication, but after the enactment of the general code these sections were again taken up by the general assembly and various amendments made thereto. In 102 O. L. 514, Gen. Code 3001 was repealed and reenacted with some slight amendments» On May 31, 1911, 102 O. L. 198, Gen. Code 5597 was so amended as to give to the county surveyor, while acting as a member of the quadrennial board of equalization five dollars per day, and to each member of the board his actual necessary expenses incurred in the performance of his duties as member of such', board; and the provision for the payment of a per diem of three: dollars was left out, and the original section repealed, making' by this amendment a complete change with regard to the compensation of members of such board. Again, in 102 O. L.. 279, Gen. Code 5597 was reenacted with the provision giving to» members of the boards of equalization three dollars per day for their services as members of that board restored as the section: originally stood. It is our duty to ascertain, if possible, in construing these statutes, the meaning of the lawmakers. A familiar rule of interpretation is thus stated in 26 Am. & Eng. Ene. Law 216 “where there is in the same statute a particular-enactment and also a general one which in its most comprehensive sense would include what is embraced in the former the particular enactment must be operative and the general enactment must be taken to affect only such cases within its-general language as are not within the provisions of the particular enactment.” As the law now stands we have one section of the general code providing that the salaries of the county commissioners shall be full compensation for all services rendered by them as county commissioners. We have two sections. "both bearing the same number and both enacted on the same ■day, one of which provides a per diem for the surveyor and for the payment of the necessary expenses of all members of. the board, while the other section of the same number provides for ;a compensation of three dollars a day for each member of the board. It will not help in the interpretation of these statutes to criticize the apparent carelessness with which they seem to have been so complicated. We must suppose that the legislature did not intend to do an unreasonable thing, that it had an object in view in amending and reenacting these sections. We must presume that the legislators' had knowledge of the provisions of Gen. Code 3001 and amended Gen. Code 5597. If the legislature did not intend that the members of the county "boards of equalization should receive iho compensation for ■iheir services provided by Gen. Code 5597 what possible object ■could they have had in mind in reenacting that section in its ■original form after it had been repealed and amended with the provision for the compensation of the members of the board left out? It it reasonable, to suppose that the intention was to provide extra compensation for the extra labor imposed upon the commissioners as members of the boards of equalization. It either means this, or it is a nullity, and it is not a just presumption to assume that the general assembly simply legislated for the sake of legislating and intending that its work should be meaningless, We think that under the provision of 'Gen. Code 5597 as amended 102 O. L. 279 that the commissioners are entitled to the compensation therein allowed. Whether this section repeals Gen. Code 5597 as amended 102 O. L. 198 by implication, or what effect it has on that section me are not called upon to determine.

The judgment of the common pleas court is reversed.

Norris and Pollock, JJ., concur.


author: CHITTENDEN, J.

text:
    DAMAGES — FRAUD—JURY.
    [Sandusky (6th) Court of Appeals,
    October, 1913.]
    Kinkade, Richards and Chittenden, JJ.

      Frank S. Shoffstal et al. v. Robert A. Elder et al.
    1. Three-fourths Jury Provision Relates to the Remedy and Became Effective May 14, 1913.
    The amendment to Sec. 11455, G. C., 103 O. L. 11, passed February 6, 1913, and which went into effect on Mlay 14, 1913, providing that “in all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number,” relates to the remedy and is to be construed as if Sec. 26 G. C. was a part thereof.

      2. Act not Applicable to Actions Pending May 14, 1913.
    The words, “in all civil actions,” being general in character, are not sufficient to make the statute applicable, to actions pending when the act became effective, but an express provision is necessary to accomplish such result, and the act as amended applies only to civil actions commenced on or after May 14, 1913.
    3. Measure of Damages for Fraud and Deceit in Sale of Personal Property is Difference between Value Represented and Actual Value at Purchase.
    In an action to recover damages for fraud and deceit in the sale of personal property, the measure Of damages is the difference between the value of the property as it was represented to be and its actual value at the time of the purchase. (Linerode v. Rasmussen, 63 Ohio St. '545, followed). ■
    [Syllabus by the court.]
    Error to common pleas court.

      Jesse Vickery, for plaintiff in error.

      Parkhurst & Vickery and Garver & Garter, for the defendant in error.

      Reversing, Shoffstahl v. Elder, 23 Dec. 485.

   CHITTENDEN, J.

The action in the common pleas court was brought by the plaintiffs in error as plaintiffs against the defendants to recover damages alleged to have been sustained because of fraud and deceit practiced by the defendants in the sale to plaintiffs of a certain stock of merchandise. The transaction out of which the damage is said to have risen was the trade or exchange of certain real estate in Toledo for a stock of dry goods, millinery and fixtures in the city of Bellevue, Ohio, made on or about August 24, 1912. It is claimed by the plaintiffs that the defendants fraudulently represented the stock of goods to be of good quality, and that it would invoice $6,500. It is also claimed that the defendants represented that they had an established trade, and that their sales would amount to $12,000 per year. The plaintiffs claimed that these representations were false, particularly with respect to the amount of the inventory of such goods, and they alleged that the goods did not ,at the time invoice to exceed $1,516. They claimed that they relied upon the representations of the defendants in making the exchange, and the-y have' been damaged in the sum 'of $3,000. The real estate in Toledo owned by the plaintiffs and by them deeded to the' defendants in exchange, was encumbered by a mortgage of $2,000, and as a part of the bargain the plaintiffs agreed to and did execute and deliver to the defendants a promissory note' for the sum of $2,000, secured by a chattel mortgage upon the stock of goods conveyed- to them by the defendants. It appears that thereafter, to wit, December 31, 1912,, the defendants discovered some defect in the form of the chattel mortgage, and requested the plaintiffs to' execute a new note and mortgage in lieu of those theretofore given. They thereupon did execute a new mortgage and ten new notes, aggregating the sum of $2,000, which were secured by the mortgage, and another note for $40, representing the accrued interest, which was unsecured.

On March 21, 1913, the plaintiffs commenced this action in the court of common pleas. The defendants by their answer denied all the allegations of the petition charging fraud in the transaction, and set up a cross petition in which they sought to recover judgment upon the promissory notes, and also prayed for a foreclosure of the chattel mortgage securing the same. The cause went to trial on May 6, 1913; the court charged the-jury on May 20, and on May 21 the verdict was returned, signed by ten jurors who had agreed upon the verdict in which the other two jurors did not, concur. The verdict of the jury was in favor of the plaintiffs upon the cause of action set up in their petition, and their damages were assessed at no dollars. Upon the causes of action set up in the cross petition of the-defendants, the verdict ivas in favor of the defendants for the sum of $2,069.23, that being the full amount of the defendants’’ claim. A motion for a new trial was filed by the plaintiffs, which was overruled by the common pleas court, and judgment was entered upon the verdict, in favor of the defendants. Thereupon the plaintiffs prosecuted error in this court, and present a bill of exceptions containing all the evidence.

The first question challenning the attention of the court is. as to whether or not the court was in error in charging the-jury that when nine of their number had agreed upon a verdict, it might be returned into court. The amendment to. Sec. 11455 G. C., providing that “in all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number,” was passed by the general assembly-on February 6, 1913. It was approved by the governor on February 12, 1913, and was filed in the office of the secretary of slate February 13, 1913. By provision of the constitution, Art. II, Sec. lc, the law as passed by the general assembly did not beeome effective until ninety days after it had been- filed by the governor in the office of the secretary of state. It therefore, did not become effective until May 14, 1913. It will be seen, therefore, that the cause was upon trial at the time when theámendment became effective. It is claimed by the plaintiffs, that the amendment did not affect the case on trial because it. vlas pending at the time the law went into effect, and that the-amendment contained no provision expresslv making it applicable to pending eases. The amendment providing for a verdict, by less than the unanimous agreement of the jurors is one-clearly remedial in its nature. At the time.of its passage Sec. 26, G. C., was in full force and effect. The section reads as. follows :

“Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed* nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

The question presented is not one calling for construction of any constitutional provision, but only for a construction of the amended statute, number 11455, as it may be affe'cted by See. 26, G. C.

Section 5, Art. I, of the constitution of the state, providing that “the right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than thi ee-fourths of the jury,” does not by its terms enact that a verdict, concurred in by three-fourths of the jury, shall be sufficient. The constitutional provision only conferred upon the legislature the power to abolish the common law verdict requiring the unanimous agreement of the jury, and substituting therefor a verdict to be concurred in by not less than three-fourths of the jury. The amendment in question was passed by the legislature with the evident purpose of carrying into effect this constitutional provision.

In State v. Rabbitts, 46 Ohio St. 178 [19 N. E. Rep. 437], the court held:

‘ ‘ The statute relates- to the remedy, and must be construed in connection with Sec. 79, R. S.; so that, the language therein contained, ‘that in every instance where a judge of the court of common pleas is interested in the event of a cause * * * pending before the court in any county in his district,’ it may, ‘unless there is a judge residing in the county not so interested, ’ be removed to another county, does not, though general in form and expressed in the present tense, apply to a pending action, where the state of facts, constituting such, ground of removal, existed at the adoption of the statute. No generality of language used in an amendment relating to the remedy, will, under Sec. 79 R. S. make it applicable to a pending action, prosecution or proceeding; to make it so applicable the intention must be expressed in a provision to that effect.”

In discussing the effect of(See. 26, G. C. (formerly Sec. 79 R. S.) tbe Supreme Court in Travelers’ Ins. Co. v. Myers, 59 Ohio St. 332, 333 [52 N. E. Rep. 831], says:

“This section of the statutes was adopted for the reason that, though the legislature is denied by the constitution the power to pass retroactive laws, it had been held, that this did •not include laws relating to the remedy; and so to prevent abuses, of which there were many and somewhat discreditable instances, it was provided that where laws relating to the remedy were adopted they should not affect pending actions, prosecution or proceedings, nor existing causes of action, prosecution, or proceedings unless otherwise expressly made so in the amending or repealing act. The policy of the section suggests that it should receive a liberal construction to the end that its policy be not subverted; and that an act within its provisions should by clear language express that it was intended to apply to each classification of Sec. 79 — cause of action, prosecution and proceeding; and if it fails to apply to all, it should be applied no further than the language employed Requires. State v. Rabbitts, 46 Ohio St. 178.”

The same effect is- the decision in Charles v. Fawley, 71 Ohio St. 50 [72 N. E. Rep. 294], also State v. Barlow, 70 Ohio St. 374 [71 N. E. Rep. 363].

In interpreting a constitutional provision, the Supreme Court in the ease of Hupp v. Oil & Nat. Gas. Co. 88 Ohio St. 61, used the following language:

“Courts for the review of legal proceedings are, and have been, an essential part of our judicial system. Valuable rights acquired under a system in full and legal operation should not be held by the court to have been withdrawn and destroyed, unless by express language or by provisions, from which it must follow, by necessary implication, that such result was intended. This doctrine was upheld in Commonwealth v. Ralph, 111 Pa. St. 379; Endlich, Interp. Stat. Sec. 522.”

The common law jury of twelve men, with the necessity for a unanimous verdict, has been a part of the judicial system of this state since- its organization, and the right to have a proper case submitted to such jury has been a right enjoyed by all citizens; and, applying the language above quoted, such right “should not be held by the court to have been withdrawn- and destroyed, unless by express language or by provisions; from which it must follow, by necessary implication, that such, result was intended.”

In Art. IV, Sec. 2; and Sec. 6, and the schedule, Sec. 20,. of the constitution as adopted by the vote of the people on September 3, 1912, an intention upon the part of the people to-preserve existing rights in pending cases, is clearly shown. It-is contended that the words, “in all'civil actions,” clearly indicate an intention upon the part of the legislature to make the-amendment applicable to pending cases. We cannot agree with this contention. The language is general in its character, and is not to be held to take the place of the express language required by Sec. 26, G-. C., in order that it may be made applicable to pending actions. It will be noted that the Supreme-Court has distinctly stated that when construing a statute of this character it must be read as though Sec. 26 was in fact a. part of the section construed. The words quoted seem rather-to have been used so that the amended section would agree in its wording -with the words used in See. 5, Art. I, of the constitution, conferring the right upon the general assembly to-enact the amendment. It also has the effect, of specifically limiting the three-fourths jury verdict to civil actions, and to-no other class of actions or proceedings.

It is our conclusion that See. 11455, G. C. as amended by the act passed February 6, 1913, does not apply to actions, pending at the time of its going into effect, to wit, May 14, 1913. If it is deemed wise that the amendment should be made applicable to pending actions, it should be so determined by the: legislature in express terms, as the power to make it so applicable is legislative and not judicial in character.

It follows that the trial court was in error in charging the jury that a verdict might be returned upon the agreement of nine or more of their number. The judgment will therefore be reversed and remanded for a new trial.

In view of this result, certain other errors compiained of by the plaintiffs should be discussed in this opinion. At the conclusion of the evidence and before argument, the court was, requested by the defendants to give certain written instructions to the jury. Some of these requests related to the claim of plaintiffs that there was a representation as to what the stock would invoice. No question has been made as to the sufficiency •of the allegations contained in the petition in this respect. There may be some question as to whether an allegation that there was a representation that the stock of goods would invoice a certain amount, is the equivalent of a representation 1hat the stock was of a given value, unless the allegation is accompanied with the further statement that it was understood between the parties to be the equivalent of a statement of its value.

Special instruction number 7 in substance is to the effect that the plaintiffs had no right to rely upon the statements of the defendants, their interests being adverse to those of the plaintiffs, if the plaintiffs were so situated that they could, in 1lie exercise of ordinary diligence have examined and ascertained whether their statements were true or fraudulent. Whether this would be a correct statement of the law in a proper case need not now be determined; but we áre of opinion that it is not a correct statement of the law as applied to this ease, the evidence showing that the goods about which the representations were made consisted of a stock of dry goods and millinery; that the representations went not only to the quantity and quality of the stock, but also to the volume and extent of the business and the amount that the stock would invoice. Wé think that under these facts as shown by the evidence, the request as framed might have been misleading to the jury, and should not have been given.

The tenth written instruction is to the effect that the good will of the business was a salable asset in connection with the tangible property of the business, and that it is not necessary that the term, “good will,” be specifically mentioned in order to convey the same. This instruction would imply that there was an issue in the case as to whether or not the good will was included in the sale; whereas, by the answer olf the defendants and the reply of the plaintiffs, it is admitted that the good will was included in the sale of the premises. The giving of this instruction might be harmless were it not for the fact that there was a contention as to whether or not the good will might properly be included in an inventory of the stock. It is entirely clear that good will is not properly included as an item in the inventory of a stock of merchandise. The instruction, therefore, as framed, we think may have been misleading, and should not have been given.

We disapprove of the eleventh instruction as given, as being calculated to mislead the jury. It fails to state clearly that if the jury find from the facts proven that the plaintiffs, by the giving of the new notes and mortgage, thereby intended to waive any claim for damages arising from false representations, the plaintiffs could not recover in this action.

The only other error which we think needs to be discussed at this time is the error claimed to have been made in charging the measure of damages. The court charged that the measure of damages was the difference in value between the house and lot of the plaintiffs and the value of the stock of goods of the defendants on the date of the exchange. Counsel for neither party claimed any different rule. This charge was erroneous. The correct rule of damage is laid down by our Supreme Court in Linerode v. Rasmussen, 63 Ohio St. 545 [59 N. E. Rep. 220]. It is the difference between the value of the stock of goods as it was at the time of the exchange, and its value if it had been as represented by the defendants. This rule of damage has been followed by this court in numerous decisions.

The judgment of the court of common pleas will be reversed and the cause remanded for a new trial.

Kinkade and Richards, JJ., concur.


author: NORRIS, J.

text:
    CRIMINAL LAW — ERROR—INTOXICATING LIQUORS.
    [Ashtabula (7th) Court of Appeals,
    September 11, 1913.]
    Metcalfe, Norris and Pollock, JJ.
    Michael Deniel v. State of Ohio.
    Refusal by Common Pleas of Leave to File Error Proceedings to Review Conviction for Unlawful Sale of Intoxicating Liquors, not Reviewable in Court of Appeals.
    Where one who has been tried and convicted before a-magistrate for violation- of the law asrainst the sale of intoxicating liquors, applies to the court of common pleas for leave to file a petition ih error to review the proceedings and iudgm-ent of the magistrate. and the court -to wb^m the application is made refuses to grant, leave to file a petition in error such refusal is not reviewable on error in- the court of appeals.
    [Syllabus by the court.]
    Motion to strike off motion to file petition in error. s.

      Chadman & Appleby, for plain tiff in error.

      R. E. Mygatt, for defendant in error.
   NORRIS, J.

Motion for leave to file petition in error to review the refusal of the court of common pleas to permit a petition in error to he filed in the same ease and motion to strike off that motion.

Deniel was convicted before' a magistrate of violation of the law against the sale of intoxicating liquors. He made application to the court of common pleas for leave to file a petition in error to review the proceedings and judgment of the magistrate, which leave was refused. Application was made to this court for leave to file a petition in error to review that refusal, and motion made to strike off the motion for review.

We had supposed that the question of granting leave in such a case was settled by the Supreme- Court in the case of Canfield v. Brobst, 71 Ohio St. 42 [72 N. E. Rep. 459], the syllabus of which is as follows:

“Where one who has been tried and convicted before the mayor of a municipal corporation for violation of an ordinance, applied under See. 1752 R. S. (G. C. 4551), to the court of ■common pleas, or a judge thereof, for leave to file a petition in ■error to review the proceedings and judgment of the mayor, .and the court, or judge, to whom the application is made refuses to grant leave to file the petition in error, such refusal is not reviewable. on error in the circuit court.”

Now, it is urged that there is a distinction between this ■case, which is a prosecution for violation of the liquor law, and' a prosecution for violation of the village ordinance, but the Supreme Court do not put the decision in the Canfield case upon any such distinction as is urged by counsel. In this case application was to be made to the court. In the Canfield case it might have been made to the court or a judge thereof, but what may the court review? Section 6707 R. S. (G. C. 12258) provided:

“An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order which may be vacated, modified, •or reversed as provided in this title.”

Now, the Supreme Court in the Canfield case say that there was no action pending, simply an application for leave to file, and it could not be claimed that it was an order made in an action, and they say:

“The application for leave to file a petition in error, cannot be dignified by the name of a proceeding, special or otherwise. The term ‘special proceeding’ is sometimes defined as a proceeding in a court which was not, under the common law and equity practice, either an action at law or a suit in chancery. The term is used in code states in contradistinction to ‘action.’ The defendant in error sought to institute a proceeding. He could do so only upon leave of the common pleas court or a judge' thereof. The asking leave is not a special proceeding, and does not become such until the door of the court is opened for its entrance.”

Now, it would seem that this reasoning applies with equal force to proceedings under the liquor law, which .provides that no petition in error can be filed without leave of the court, and wben such leave is refused there is nothing for a higher court to review.

See also the case of Walder v. State, 82 Ohio St. 452, where the Supreme Court applied the Teasoning in the Canfield case to a case for violation of the law prohibiting the sale of intoxicating liquors. There is a further reason that under the new constitution the jurisdiction of the court of appeals is expressly limited as follows:

“The court.of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and to review, affirm, modify or reverse the judgments of the court of common pleas.”

As we have already found, there was no judgment of the court of common pleas in this ease, so that there was nothing for this court to modify or reverse. The motion to strike off the motion for leave to file a petition in error will be sustained and the motion stricken off.

Metcalfe and Pollock, JJ., concur.


text:
    MASTER AND SERVANT.
    [Guernsey (7th) Circuit Court,
    November Term, 1912.]
    Metcalfe, Norris and Pollock, JJ.
    National Coal Company v. Arthur Watkins.
    Timber Man in Coal Mine whose Duty is to Keep Safe Dangerous Places, Injured by Failing Roof in Repairing Same, Assumes Risk.
    The rule that the master must exercise ordinary care to provide a reasonably safe place in which the servant is to work, does not apply to cases in which the very work that the servant is employed in doing consists of making a dangerous place safe, or in constantly changing the character of the place for safety • as the work progresses. Therefore, when a timber man in a coal mine whose duty it is to repair the roof of the rooms and entries of a goal mine, and make a place safe for other employes to work in. by placing timbers thereunder, and repair and keep safe the dangerous places in the mine, is notified that the roof in a certain place in the mine is in a dangerous, condition, and is directed to repair the same by placing timbers thereunder with, no limitation as to caution he might take.-for his own safety, is injured hy the falling of the roof while engaged in that service, he assumes the risk and cannot recover for such injury.
    [Syllabus by the court.]
    Error to common pleas court.

      B. F. Scott, for plaintiff in error.

      Mr. Glenn, for defendant in error.
   NORRIS, J.

This case is here to reverse a judgment of the court of common pleas in favor of the defendant in error. Arthur Watkins brought suit against the coal company to recover damages for personal injuries sustained by him while in the employ of the company in one of its mines by the fall of slate from the roof of the mine, causing the injury complained of. '

In . his petition he sftys he was the timberman and that he was sent to this place to do certain work. He charges in his petition that at the time “in violation of its duty to provide plaintiff with a safe place to work, and to keep it safe, wrongfully, carelessly and negligently, by its said agents and servants, in authority over him, wrongfully, negligently, and carelessly directed plaintiff to enter into and engage at work in an unsafe and dangerous place, at a point about fifteen feet from the entrance to the entry known as entry number two, off entry number ten east. Said place was unsafe and dangerous in this: said defendant unlawfully, wrongfully, negligently and carelessly permitted a large amount of slate from the roof of said mine, and of waste and refuse from coal to be deposited theretofore, and to remain in said place at said time, and failed and neglected to make the roof thereover safe and secure by placing timbers to sustain said roof as the coal was removed, and failed to take down and remove the loose slate, and the slate about to become loosened, and thereby rendered said place dangerous and unsafe, and failed and neglected to properly and carefully inspect the roof to said mine at-said place; and failed and neglected to take ordinary and proper care for defendant’s safety, but, on the contrary, said defendant, by its said agents and servants in authority over said plaintiff, carelessly and negligently pretended to inspect said roof, and carelessly and. negligently informed plaintiff that said place was a safe place to. work and that there was no danger of a fall of slate.”

An answer was filed which denied every charge of negligence, and for a second defense alleges that the plaintiff himself under his employment, on April 5, 1911, and for a long time prior thereto, was required to repair and keep safe the defective and dangerous places in said mine; that he was sent to this place and was informed that the roof thereof, as described in. the petition, was loose and dangerous and he was directed to repair the same. The only error complained of in this record is that the verdict is against the weight of the evidence. We. have read all of the testimony. The record is not long and it appears that on this day the plaintiff went to this place, perhaps by direction of the foreman of the mine, to repair the roof that was stated to be in a dangerous condition and in need, of being timbered for the purpose of making it safe.

The placing of timbers in this mine was the duty of this plaintiff. He was employed for that purpose. Whenever it. was necessary to have timbers placed in any room or entry in. the mine, he was one of the men employed for the purpose of' putting those timbers in and making the roof and various, places safe. That was his duty. That was what he was employed to do in that mine, and in that business, it is assumed* he was an experienced man.

Now, in this testimony there was very little conflict in the-statement by the plaintiff and witnesses he produced and the-foreman as to what occurred, and, taking the most favorable-view for the plaintiff, he was directed to go to this particular place to fix the roof of this mine and to support it by placing timbers there. When he reached this place some of the men. with him told him that the boss had been there and directed him to make a cut in the side, I believe what we call a rib, for the purpose of putting timber therein to support the roof at that place. Both plaintiff and the witness Smith, who was there, testified as to what occurred, and when he went there he knew or had been informed that the roof of the mine was dangerous* -and the only reason for his going there to put the timbers in was because of that, that it needed timbers to make it safe.

Now, he was given outside of this one direction, no orders •as to how he should proceed and what he was to do with reference to protecting himself in this mine, nor with reference to the manner of pursuing this work and making this place in the mines a safe place in which to work. It was the duty of the mine boss, imposed by statute, to see that the roof was :made safe and some person must be employed to perform that work. It necessarily may be a dangerous work, but it is work that must be done in the mine and somebody is employed to do i't, and the question arises wherein was there negligence on the part of the foreman with reference to sending this man to do this work at this particular place?

It is testified by Mr. Smith that when the plaintiff came there he suggested that they put a post up in the center1 to protect the roof until they could get this work done that they had been directed to do. ' Bpth Mr. Smith and the plaintiff as the testimony shows, tested the roof of this mine at this particular place to see whether it was at that time in a dangerous and ■unsafe condition, and that both apparently reached the con'dusion that it was safe for the time being, sufficiently so that they might proceed with the work in hand without putting this ■post in the center while they were pursuing the work they were •directed to do at that particular place.

Now, what is the rule of law applicable to a situation of this liind ? Does the same strict rule apply with reference to providing a safe place for a person who is sent, who is employed to :make places that are unsafe safe, and is directed by his employer to go to a certain place to make the particular locality •safe for other people pursuing their work ?

Stated in Thompson, Negligence See. 3877, speaking of this rule as to the requirement of the master to make the place ■safe:

“Nor does the rule under consideration apply to cases in which the very work the servants are employed to do consists in making a dangerous place safe or in constantly changing the' character of the place for safety as the work progresses. ’ ’

Again, Thompson, Negligence See. 4705:

‘ ‘ The rule that the master must exercise, ordinary care to" provide a reasonably safe place in which the servant is to work», does not apply to cases in which the very work which the-servant is employed to do consists in making a dangerous place; safe, or in constantly changing the character of the place for1 safety as the work progresses. On the other hand, the very nature of such work conveys to the servant an obvious suggestion of peculiar danger, and charges him with an assumption, of the ordinary risks attendant upon the service in which he.is engaged.”

Now, that the plaintiff understood this rule is shown by his' testimony when he is examined as to what Smith said to him about putting a prop in there to protect Mm at the work in which they were engaged. The question is, “And you paid no attention to these other men around? A. How do you mean that? Q. That is, you didn’t care whether they were working under loose slate or not ? ’ ’ His answer was, ‘ ‘ Every man is supposed when he is in there to look after Mmself.” He understood the duty that was imposed upon him and others working in this mine. That was known by all the employes to be an unsafe place by reason of- the roof being unsafe and this man had known it. There were plenty of timbers if the plaintiff had seen, fit to use them, and it seems from this testimony that if it were-necessary, or he deemed it necessary in pursuing that work of timbering that peculiar locality to put temporary props under-that roof it was his duty without direction, from anybody t© put that timber in place, and he so understood it because apparently there was some discussion, at least Smith says so, as, to whether they should put in temporary props to protect the roof in this mine while they were cutting these places out; and taking the most favorable view of the record and testimony-on the part of the plaintiff we are unable to say that the verdict of this jury is not manifestly against the weight of the testimony.

Another question as to this slate that was located on the side of the room. It does not appear from the testimony that this was the approximate cause of this injury. It certainly did not have anything to do with the roof falling. Recently there had been a large fall of slate from this roof and some of the workmen were there engaged in piling it up, the “gob” I believe they call it, being removed for the purpose of cleaning it up. There is not any testimony showing that this slate had "been there any length of time; that the company had had opportunity to remove it if it were necessary to do so. An unfortunate accident, but is defendant liable under the law?

"We have examined all the' testimony in this case as carefully as we could in the light of the law and it seems to us that this verdict is manifestly against the weight of the evidence, and for that reason the judgment of the common pleas court will be reversed and the cause remanded.

Metcalfe and Pollock, JJ., concur.


text:
    ARREST — CONCEALED WEAPONS.
    [Ashtabula (7th) Court of Appeals,
    December 11, 1913.]
    Metcalfe, Norris and Pollock, JJ.
    John Rasey, et al. v. Virginia Ciccolono, Admrx.

      ~t. Police Officer without Warrant not Authorized to Arrest Person Peaceably Passing along Highway.
    A police officer is not authorized to arrest a person passing peaceably along a highway without a warrant on a mere venture without any knowledge or reliable information, though in fact, as afterwards discovered, concealed weapons were found on the person so arrested.
    2. Nor to Search Persons without Arrest or Reasonable Grounds for Arrest.
    A police officer has no authority to search a person passing peaceably along a highway of'a municipality until he has placed such person under arrest, and the circumstances must be such as to give reasonable and probable grounds to justify such arrest.
    [Syllabus by the court.]

      Error to common pleas court.

      H. B. Hill, for plaintiff in error.

      Charles Lawyer and M. A. Soules for defendant in error.
   NORRIS, J.

The defendant in error, the administratrix, brought an action in the court of common pleas against John Easey and his bondsmen to recover damages for Easey causing the wrongful death of her decedent.

John Easey was a police officer in the city of Ashtabula at the time of the wrongful death complained of, and the other defendants below were on his bond as such officer. It is charged . in the petition that Easey was in the discharge of his duties as a police officer when he wrongfully caused the death of Luigi Ciccolino. The verdict was returned in favor of the plaintiff below and judgment rendered according to the verdict and this proceeding in error is brought to reverse that judgment.

Some rulings of the court below on the questions of law are complained of. The first to which attention is called is the refusal of the court to give certain instructions found on page 141. This is what is contained in the record:

“And thereupon the defendants requested the court to give in charge to the jury, before argument, the following propositions of law, all of which requests to charge were refused by said court.”

Two things might be noted about this record. The first is the request is not made to give in writing, — no such request, is made. Second, these requests are asked as a whole and not separately. There could be no error on the part of the court to refuse all of them because they are not asked in compliance with the provision of the statute which says, written requests, and second, unless all of them ought to have been given to the jury, then it was not error of the court to refuse all of them.

We might stop here, but certain rules of law are applicable to this case which might be spoken of in connection with these requests. The court was asked to charge the following:

“The reasonable and probable grounds that will justify an officer in arresting without a warrant, one whom he suspects of felony, must be such as would actuate a reasonable man, acting in good faith.
“The usual and necessary elements of, the grounds of suspicion' are, that the officer acts upon his belief that the person he is about to arrest is the one guilty of the felony, based either upon facts or circumstances within the officer’s own knowledge, or upon information imparted to him by reliable and creditable third persons.”

There is not any evidence in this record, of any effort on the part of the officer to arrest decedent at any time. There is no evidence that so far as this officer' is concerned at the time, that there was any felony for which he was about to, .or intended to, arrest the decedent, and that would be sufficient to make this request very properly refused as asked for in accordance with the rules.

Again, this instruction was asked:

“At the time of making an arrest an officer has the right to search the prisoner and take from his. person, and hold for the disposition of the trial court, and property connected with the offense charged or that may be used as evidence against him or that may give a clue to the commission of the crime, or the identification of the criminal or any person or implement that might enable the prisoner to commit an act of violence, or effect his escape. ’ ’

Doubtless the law is applicable, but only in case of arrest, and there was no arrest of this man, or attempted arrest.

Third request :■

“If John E. Rasey at the time he stopped Luigi Ciccolino, on the night .of the shooting, in good faith believed Luigi Ciecolino had concealed on his person a gun or other concealed weapon, he, John E. Rasey, had a right, and it was his duty, to take such weapon or gun from him and to arrest him. ’ ’

That statement leads to an investigatión perhaps, of the duties and powers of a police officer, under the laws of Ohio, acting without a warrant.

Section 13492 G. C. reads as follows:

“A sheriff, deputy sheriff, constable, marshal, deputy marshal, watchman or police officer, shall arrest and detain a person found violating a law of this state or an ordinance of a city or village, until a warrant can be obtained.”

I would suggest here that this record fails to disclose any fact indicating that the deceased in this case was at the time of this occurrence violating any law of the state, or any ordinance of the city, in so far as there was any knowledge of this police officer.

Section 13493 G. C. reads:

“When a felony has been committed, any person without warrant, may arrest another whom he> has reasonable cause to believe guilty of the offense and detain him until a warrant can be obtained. If such warrant directs the removal- of the accused to another county in which the offense was committed, the officer holding the warrant shall deliver the accused to a magistrate of such county to be dealt with according to law. The necessary expense of such removal and reasonable compensation for his time and trouble,' shall be paid to such officer, out of the treasury of such county, upon the allowance of the county auditor.”

The claim on the part of the officer with reference to any crime having been committed- was, that the chief of police of the city of Ashtabula had telephoned him that somebody had committed some offense in the city of Buffalo in the state of New York, and that he might come in on certain trains that evening, coming in from the east, and to watch the heads of those trains for such person.

There is no evidence in this record anywhere that the deceased answered any description of this supposed fugitive, or that he did anything that night that indicated anything suspicious about him, or that he came from that train. The testimony is that he was peaceably passing westward along the Lake Shore) railroad tracks, until he came to the cross over the north and south railroad, with another companion, with his coat over his shoulder, and had reached within a few hundred yards of his own home, to which he was going, so that there seems to be nothing in this record that would bring the situation of these parties or this officer within any of the provisions of these statutes, and as they have been interpreted by our courts. It does not follow from this law that an officer may interrupt anyone whom he sees passing peaceably along the ways of the city. There must have been such situation, such suspicious circumstances, such surrounding conditions that a reasonably prudent man might believe the person so passing to have been guilty of crime, that he would be authorized to detain him long enough to procure a warrant.

In the ease of Ballard v. State, 43 Ohio St. 340 [1 N. E. Rep. 76], it is said in the opinion of the court on page 345:

“Under these circumstances, we think the officer was in the performance of official duty. This does not authorize such an arrest without warrant on a mere venture, without knowledge or reliable information, though in fact, as afterward discovered, concealed weapons were found.”

See also State v. Lewis, 50 Ohio St. 179 [33 N. E. Rep. 405; 19 L. R. A. 449], In the case of Britton v. Granger, 7 Circ. Dec. 182 (13 R. 281), the third syllabus reads:

“To constitute a probable cause so as to warrant the arrest o-f a person for the commission of a crime, there must be such circumstances and surrounding facts as will lead a person of ordinary prudence to believe in the guilt of the person arrested, and if the facts show that to be the ease, then there is probable cause for the arrest.”

Now, that perhaps is sufficient to- dispose of these requests. And now as to the charge of the court which is found on page 152 of the record and on that page the court defines the rule of law as to self-defense. It was finally claimed on the part of the defendants below that this officer shot the deceased in self-defense and we think the court very fairly gave the rule to the jury governing that feature of the case. The law that is given is as favorable to the defendants as they had a right to ask.

Now, it is insisted further that this verdict is against the evidence. I shall state in brief the situation of the parties. This deceased, Ciccolino and another man by the name of Tuseano, were passing along the railroad tracks of the Lake Shore railroad, going westward to their homes, there is no dispute about that. This officer overtook them and first stopped the companion of the deceased, and this is what he says occurred:

“I came to the first fellow. I don’t know his name, and. said, ‘What you got on you?’ He says, ‘Nothin’. I put my hands over him and thought' I felt something in his hip pocket and looked and found a razor in a box, and gave it back to him. Q. Then what did you do? I stepped by him and said to the other fellow, ‘What you got on you?’ Luigi Ciccolino says, ‘You no take my money?’ or something like that, and put his hand towards his hip pocket. I grabbed him by the shoulder, put my right hand on his shoulder, he had an overcoat thrown over his shoulder, I think, I don’t recollect how it was, and he commenced to resist — (Mr. Lawyer: object. The Court: Tell what he did.) He tried to get' away from me. I was satisfied that he had a gun on him or he wouldn’t resist. Q. Go ahead, tell what happened? He broke away from me, and I took my club and hit him on the left shoulder with it, his overcoat was on that shoulder, hit him on the left shoulder, and just then he drew a gun. Q. Where did he take the gun from? Hip pocket, I suppose, from the rear of his clothes somewhere. Q. After he broke away and pulled the gun, were you moving at that time ? Not at that time. Q. What did you do? I jumped back, put my club up ’and pulled my gun from my overcoat pocket and hollered, ‘Drop that gun or I’ll shoot.’ Then he brought the gun up on me in about this position — (Mr. Lawyer, What position?) Not quite level and brought it up like this, and then I shot four times. Did you fire until he pulled his gun and started to level it? No, sir, he had leveled it when I commenced. Q. When he drew the gun how far would you say you were apart? I should judge in the neighborhood of eight or ten feet, as near as I can recollect. Q. And about where at that time? Just a little east of the cross over, going west. Q. Where was Carmine Tuseano at that time? I don’t know, didn’t see him after I searched him. Q. He wasn’t around at the time of the shooting? No, sir. When you left him to search the other fellow, that was the last you saw of him? Yes, I think he went off. Do you know whether he ran or walked ? Don’t know. Then what happened ? I fired four shots and he turned to the left and ran on until he fell down, ran I should think 150 feet, then I see some people in the tower and went over there and asked if there was a telephone there, and they said there was a Bell.”

And then he telephoned to the chief of police.

Again, to show what occurred by his testimony:

“Q. You seem to be able to remember some things quite well. What did you say when you turned after searching that man Tuscano? I can’t remember exactly. Q. Now, how far was this other man, Ciccolino, standing from you when you searched Tuscano? Well, he stood on the left side of him, on my right, stood about two or three feet from him. Q. While you were searching the other man Ciccolino' made no attempt to do anything, did he stand right there? No, sir. Q. Ain’t that true that all the time you were searching this man that Ciccolino stood right there where he was in the first place and never tried to get away? No, sir. Q. Well, what did he do-while you were searching Tuscano? Ciccolino started off. Q. Started which way? Towards the west across the Lake Shore. Q. How far had he got before you said anything to him ? Oh, just a few steps off. Q. A few steps, how many? About six or eight. Q. How far? Well, four feet I should think. * * *
Q. When you hollered to him to hold on a minute, did he stop? Yes, sir. Q. Tell what occurred, what was done or said? I came up to him to search him. Q. Didn’t you say to him ‘What have you got?’ You said that to him didn’t you? I don’t know. Can’t remember that now. Q. And then he said ‘You can’t take my money?’ Yes, sir.”

This is his statement of what occurred.

The other witness who was there part of the time, testified quite differently, — that before any proceedings had taken place, that the police officer struck the deceased over the side of the head with his club, and there was evidence of a scar on the side of his head, as testified to by people who examined the body afterwards. And testimony of other disinterested witnesses was that these four shots did not all come at one time; that two of them took place one right after the other, then a short interval, then the other two. This man was hit twice, once in the abdomen and the other in the leg. .

But, was the officer justified by his own statement in what he did at that time, — and is it necessary in order that we may have police protection that we justify such proceedings on the part of a police officer ?

This deceased, as the testimony shows, was foreman on the tracks of the Lake Shore railroad, and had lived there a number of years. As I have stated, these two persons were peaceably passing along the railroad track on the way to their homes, no pretense that they were violating any law; there is no pretense on the part of the police officer in his testimony that he thought either of them had been violating the law, but he had a suspicion that each of them might be carrying a concealed weapon, and he searched the first one and then attempted to search the other, and because the other man perhaps, did not yield gracefully to a search by a policeman who may meet him anywhere, he raps him over the head. The officer claims he struck him on the shoulder but there doesn’t seem to be any reason for either blow, the one which he admits having given, or the other which the testimony shows, and which the jury might well find was given.

And he says the other man pulled out a gun, thereupon he told him to put it up, and without waiting for him to do so he shot four times, and that he was eight or ten feet away, he says. He was not, as I have stated, in this testimony, in any way attempting to arrest this man. Neither is there any statement on his part that he did arrest him, or that he desired to put him under arrest. If he had wanted to escape this gun he could have very easily done so. He simply wanted to search him. There is no evidence that he found anything about him to indicate that he was this person from Buffalo he was hunting.

The other man, Tuscano, says that this man did not pull any revolver out. The testimony shows that he had a revolver but that it was carried in the inside pocket of his coat, and it was found under his body after he yvas shot. The jury could well find that he did not even- take out his gun. And the jury was abundantly justified in so finding.

We think this officer largely exceeded any authority he had as a policeman of the city of Ashtabula, and that the jury were justified in finding that he wrongfully, acting as a policeman, caused the death of this decedent, and that there is no error’ in the record, and the judgment is affirmed.

Metcalfe and Pollock, JJ., concur.


author: POWELL, J.

text:
    REPLEVIN. -
    [Licking (5th) Circuit Court,
    October Term, 1912.]
    Voorbees, Shields and Powell, JJ.
    Fred S. Sperry v. Edward Allen.
    Verdict Failing to Assess Value of Property Replevined, Irregular in-case of Redelivery Bond Executed.
    A verdict which does not assess the value of the property replevined, in an action in which a redelivery bond has been, given, does not conform with the provisions of Sec. 12059 G. C. with reference to the redelivery bond, and the entering of judgment on such a verdict constitutes reversible error.
    [Syllabus by the court.]
    Error to common pleas court.

      Carl Norpell and C. N. Moore, for plaintiff in error.

      A. A. Stasel, for defendant in error.
   POWELL, J.

This action was in replevin. Plaintiff in error was the owner of a judgment against B. J. Smith and M. A. Smith, and on June 10, 1910, caused an execution to be issued on said judgment to the sheriff ’of this county. The sheriff levied the-same upon a stock of groceries and meats in the village of Utica, Ohio, as the property of said judgment debtors. On June 13* 1910, Edward Allen, defendant in error, commenced an action in replevin against the sheriff, William Linke, and repíe n id the stock of groceries, meats, etc., from him. Shortly after-wards, Fred S. Sperry, the execution creditor, was substituted for the sheriff, and gave a redelivery bond and took possession of the goods replevined. Said bond was offered in evidence; it is attached to the bill of exceptions as an exhibit, and was given under the provisions of Sec. 12059 G. C.

The case was tried to a jury, resulting in a verdict for the defendant, Allen. A motion for a new trial was filed; a bill of exceptions was taken, embodying all the evidence, and the case is brought to this court for reversal of the judgment of the court below. Numerous errors are assigned, but the principal errors relied on are as follows:

First. Error in the exclusion of testimony offered by the defendant below, and the admission of testimony against the objection of the defendant below1, now plaintiff in error.

Second. Error in the charge to the jury.

Third. Because the verdict is against the weight of the evidence.

Fourth. Because of misconduct of counsel for the plaintiff below.

We have examined the record carefully in reference to all the errors assigned, and especially in reference to the errors urged to the court and insisted upon in the argument of counsel. While there may have been error in the admission of certain testimony, as claimed by counsel for plaintiff in error, yet we think that it was not such error as would work to the prejudice of the plaintiff in error, and would not justify a reversal of the judgment. Neither do we think that the court’s charge is open to serious objection, of that the same was erroneous.

It is strongly urged that the verdict of the jury is against the manifest and overwhelming weight of the evidence. We are of the opinion that while the evidence was probably open to suspicion, and was such that the jury could readily and easily have brought in a verdict for the plaintiff in error, instead of for the defendant in error, yet we think that it was such a case and'the evidence was such that it was peculiarly within the province of the jury to determine. We do not think it is so manifestly against the weight of the evidence that a reviewing court would be justified in disturbing the verdict and judgment of the court below.

Again, it is urged strongly that, because of the misconduct of counsel in making certain statements to the jury relative to evidence that had been adduced upon the trial, error prejudical to the rights of the plaintiff in error was committed, and that the judgment should be reversed upon this ground. While we think that counsel probably exceeded the limits of proper discussion, and made statements in his argument to the jury which could not be borne out by the evidence, yet, because the particular statements complained of would only go to the argument cf opposite counsel, in relation to a certain book that was offered in evidence, by and with the consent of counsel for plaintiff in error, we think that this alone would not justify the court in reversing the judgment of the court below.

It is, however, assigned as error that the verdict of the jury was irregular and was not in conformity to law. The provisions of Sec. 12059 G. C., providing for the execution of a redelivery bond, provide that the same shall be conditioned that, in ease the judgment be against him (the defendant below, now plaintiff in error) he will return the property taken, or pay the value assessed, at the election of the plaintiff, and also the damages assessed for its taking, detention and injury, with costs of suit. In other words, the defendant in error would have the right, under the conditions of this bond, to demand that the property taken and returned to the defendant, Sperry, after the execution of the redelivery bond, should be returned to him after the verdict and judgment in his favor; and, in addition, he would have the right, under the terms of this bond, to collect whatever damages might be assessed by the jury for the taking and detention of such property.

The verdict of the jury in this case was as follows:

“We, the jury in this case, being duly impaneled and sworn, do find that, at the commencement of this action, the plaintiff had the right to the property in the goods- and chattels in the petition described, and was entitled to the possession thereof, and we do assess his damages against the defendant, Sperry, by reason of the premises, at $665; and we do find the value of the property, at the time it was delivered by the sheriff to the defendant at the sum of ....................dollars. ’ ’

It will be observed that the jury does not assess any value to the property replevined, and does assess damages against the defendant, Sperry, in the sum of $665.

We think that this verdict is not sustained, as the same is returned, by the evidence adduced. This verdict, we think, is irregular, and is not in conformity with the requirements of- the statute; that, by the terms of this verdict, as applied to the redelivery bond, the plaintiff in replevin, defendant in error, could demand from the defendant, Sperry, the goods replevined; and, in addition thereto, he could collect, as damages, the sum of $665.

We do not think that such is the meaning of the statute, and that the jury, in the return of this verdict, did not return it in compliance with the requirements of the statute, and left the matter open and uncertain.

For these reasons, and because it can not be determined from the evidence itself what the rights of the respective parties to the suit are, we think the judgment of the court of common pleas ought to be reversed, and a new trial granted.

We have examined the record in reference to all the errors assigned, and do not find, any other error in the record which we think would justify a reversal of the judgment of the court below; but we do think that, considering the uncertainty of the rights of the parties, under the verdict as returned by the jury, the judgment should be reversed.

The judgment of the common pleas court is reversed. Exceptions noted. The cause will be remanded to the court of common pleas for new trial, and other proceedings according to law.

Yoorhees and Shields, JJ., concur.