author: King, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    THE TOLEDO & MAUMEE VALLEY RAILWAY CO. v. THE TOLEDO TRACTION CO. et al.

      Street railroad — Arrangement by one to allow other road use of its tracks — Arrangement of such other road with third road to use tracks, when will not invalidate arrangement with the first road — •
    A traffic arrangement between two electric street railroads, by which road A., the city road, agrees to furnish power and permit road B., the suburban road, to run its cars and traffic over the tracks of road A., is not violated by road B. permitting a portion of its cars to run over the tracks of another connecting road as well as over its own and the tracks of road A., where the latter arrangement does not increase unreasonably the number of cars to be carried by road A.
    Error to the Court of Common Pleas of Lucas .county.
   King, J.

This is an action begun in the court of common pleas November 25, 1896, to enjoin the ' defendant, The Toledo Traction Company, who is,at the time of this trial, the successor of the other defendants by virtue of consolidations and otherwise, from interfering to obstruct and stop certain of its cars about to be run over the tracks of the defendant in the city of Toledo.

The petition alleges, that on June 1st, 1894, the plaintiff entered into a contra'ct with the defendant, whereby it acquired a right-to .run its cars over the tracks of the defendant in the city of Toledo therein described, .and sets forth in its petition the contract in full. The answer denies so much of the petition as alleges that the defendant is wrongfully stopping the cars, and alleges that the plaintiff had no right to run the cars in question over its track in pursuance of the contract described in the petition, or otherwise.

It appears from the pleadings and from the evidence, that in 1894, the plaintiff, an incorporation, was about to build and construct a railroad which should run along, near or adjacent to the Maumee river, on either side of it, and should run from the line of the corporation of the city of Toledo, on the west side of the river, to and through the village of Maumee, crossing the Maumee river near the village of Maumee, and running on the easterly side of the Maumee river to the corporation line of the city of Toledo, connecting at both of these points with certain lines of the defendant, and so wbeAcompleted there would be,pursuant to this contract, a complete belt line constructed and running through the city of Toledo, and on either bank of the river, and through the villages of Maumee on the western side of the river, and Perrysburg on the eastern side of the river. The road was constructed as proposed in this contract, and the parties to this case and to that contract entered into carrying out the provisions of it, and continued to carry them out for a period of time, perhaps a year and a half or two years, when, after the construction of the plaintiff’s road, and while the parties were in the execution of this contract according to its provisions and terms, about April, 1896, a corporation, called The Toledo, Bowling Green A Fremont Railway Company was chartered,and constructed, or was then about to construct,a railway from the village of Perrysburg to Bowling Green, some ten miles further south from Toledo than Perrysburg is situated, and proposed to connect it with the road of the plaintiff; and thereupon it entered into a contract with plaintiff in most of its terms substantially like that entered into between the plaintiff and the defendant in respect to running cars over its tracks. The road was constructed as proposed to Bowling Green, and the Toledo, Bowling Green & Fremont Railway Company entered upon the business of running cars over its tracks, and also entered into .carrying out the provisions of its contract with the plaintiff, whereby certain cars which ran over the road of the Bowling Green & Fremont Railway Company,also ran continuously from the point where that road connected with the plaintiff’s road,over the tracks of the plaintiff’s road, to the city of Toledo, and then ran over the tracks of the defendant’s road, making the circuit that had been contemplated by the contract between the plaintiff and the defendant. That running arrangement was carried on for some months, when the defendant interfered to stop certain of these cars, and did stop them, and this action is begun to enjoin those acts — to enjoin the defendant from obstructing the running of these cars over its road. The arrangement between the Bowling Green road and plaintiff in this case, for running cars, is set forth at some length in its contract, which was offered in evidence, and the arrangements there stipulated for, have, in some respects, been changed between those parties by their subsequent conduct, or by subsequent oral agreements between them, so that, at the time when this action was commenced and when the defendant interposed these obstructions to running the cars, the facts were substantially these: The plaintiff company furnished three of its own cars which had, up to that time been ordinarily used upon its own tracks and in its own business, to be run over the line of the Bowling Green road, from Perrysburg to Bowling Green and return, as well as over the line of its own road; and as actually operated-, they were run from the village of Perrysburg to and through Toledo and back, and thence to Bowling Green and return to the village of Maumee, and from the village of Maumee down its tracks to and through Toledo, making the same complete circuit stipulated for in the contract between these parties. The plaintiff road, up to the time it made this actual running arrangement with the Bowling Green road, had been running five cars upon its own road. When it made this arrangement, it took three of those cars and extended the distance that they were to travel in the manner that I have described. It added no more cars to its own line, and five cars were continued to be run over its line, two of them exclusively upon its line and the line of the defendant, and three of them upon the lines of the defendant and the line of the plaintiff, and the line of the Bowling Green road. I might say that the real purpose of that arrangement, so far as it can be obtained from the proof, was to obviate the necessity of a transfer of passengers at the village of Perrysburg from the Bowling Green line to the plaintiff’s line.

The written contract between the plaintiff and the Bowling Green road provides, among other things, in paragraph 2, following the preamble:

“Second party (Bowling Green road) shall furnish at its own expense and cost the power to propel and the men and labor to operate its cars over that portion of said road to be constructed by it, and it shall further pay to first party a sum sufficient to reimburse it for .all moneys paid out or expended by first party in furnishing the necessary men and labor to run and operate the cars of second party over the entire distance along and around said railway of first party.”

Again, in paragraph 4, is this provision:

“Second party shall deliver to first party and first party shall receive from second party, all cars of second party at the point where the said railway intersects the westerly line of West Boundary street in the village of Perrysburg. Said first party shall take charge of, operate, propel and run all of said cars from said point last above named in a northerly direction along its railway so to be constructed along or near the westerly line of Findlay street to Sixth street. ”

And then follows a description of the line of plaintiff’s road.

So'that contract, it appears, provides that in the interchange of cars and the-running arrangements that were made between them, that when the cars came upon the track of the plaintiff’s road, it was to operate, propel, and run them, and for the expenses of this operation and running, the Bowling Green road was in some manner thereafter provided for to'pay the plaintiff road.

There are used in that contract a good many expressions in reference to the Bowling Green road’s property,like “its cars;’’ but, as I have said, the conduct of the parties and their actual arrangements afterwards have so far changed this contract, that at the time when this litigation arose the Bowling Green road was running no cars of its own, but it was simply running the cars of the Maumee road over its railway under this contract with them, and when these cars came upon the track of the plaintiff’s road, the plaintiff was to have charge of them, have complete control over them, and was to operate them. These cars, then, upon the road of the plaintiff, were under its sole management and control.

This contract, which is made the basis of this action, should not and cannot be construed beyond its true intent and meaning; but that meaning, obtained from the document itself, and the whole of it, aided by any extraneous light that the other testimony in the case may throw upon it, should be given to it by the court, and full effect should be given to such meaning when it can be once ascertained. That contract is very long, and provides a great many stipulations covering a variety of things that were anticipated to arise between these two companies, and it sets forth in the first paragraph of the preamble that the plaintiff proposed to build a road over a certain route, and that route is particularly described; but here I notice that from the beginning to the end of this contract, there is no provision or stipulation from which it even could be inferred that either party, at the time of the execution of this contract, contemplated that by its ierms it should restrict the plaintiff from extending its road over any other route that it might thereafter desire to. It proposed to construct over this route, and that route is described, but it certainly is not by its language restrictive upon the plaintiff, either as to the exact line the plaintiff’s road should follow between the points named, nor that the southern, terminus of this road should be at either of the villages named. It is said now, in the third paragraph at the commencement of the contract:

“The parties hereto desire to make a mutual arrangement and agreement, whereby said roads may be connected so that the traffic over the road of second party may pass over the roads of first parties, so as t.o make a continuous circuit or belt line connecting the city of Toledo and the villages of Maumee and Perrysburg, and so that the traffic may be transported between the points named without, change of cars or delays of any kind.’’

Then the object of the parties when they got together,, was to make a contract by which all the traffic carried over the road of the Maumee company might be carried without change of cars when it should reach the line of defendant’s road. That was between the city of Toledo and the villages of Maumee and Perrysburg; but what effect has the placing in there of the villages of Maumee and Perrysburg, further than that they were points then contemplated where the road was to stop at the southern end? Had the parties at the time contemplated building a road, not to Maumee and Perrysburg, but to Napoleon or Bowling Green, there is nothing in the contract to show that the same provisions-would not have been inserted with reference to traffic arrangements. It is true that there is nothing in any of the provisions that I have or shall hereafter refer to, that the defendant is bound to carry the independent distinct traffic of any other railroad. This paragraph is referred to as having some bearing:

“Second party shall deliver to said first parties, and the first party shall receive from second party, all cars running over the road of second party at the southerly line of the city of Toledo, at the respective points on the east and west sides of the Maumee river above indicated,”

Then there follows the provisions as to fares, which are immaterial here. There is this further provision:

‘‘Second party shall forever indemnify and hold and save harmless said first parties, and each of them, from all liabilities, damages, costs, or expense, caused by the negligence or the wrongful acts of the employes of second party, in ■operating its cars over and along the tracks of the first parties, it being understood and agreed that the conductors, motormen and other servants and employes of second party, are not to be held or construed in any event or in any respect to be the agents, servants, or employes in any manner or form of said first parties, or either üf them.”

I refer to that for the purpose of distinguishing it from any provision there is in the other contract. There is no like provision in the contract with the Bowling Green road; on the contrary, the provision in that contract is, that the plaintiff’s road is to operate the cars that it receives from the Bowling Green road, and that the Bowling Green road is to pay it the expense of such operation. If that were carried out in accordance with the plain language and expressed intent and purpose of it, the plaintiff company would be responsible for the acts of negligence of the conductors and motormen upon the cars that it received from the Bowling Green road while they were running over its road. Whether it might fall back eventually upon the Bowling Green road is another matter, but this responsibility it assumes by its contract. By the contract said plaintiff is made •responsible for the running of its cars when they get into the city of Toledo. It there contracts with the defendant company that it will indemnify it against any liability or any loss that it may sustain by reason of any acts of its employes, etc.

We think that the only question now submitted to us is whether the defendant should be enjoined from obstructing the three oars which the proof shows were being run, not only over the plaintiff’s road, but over the Bowling Green road as well. We do not see fit, nor do we think it is important, to discuss or to decide upon any case or state of facts which are not before us. We seek only to ascertain if there has been such a substantial violation of the contract between these parties by the plaintiff, as authorized the defendant to stop these three cars under the circumstances described. The defendants here claim, not that it should not carry the passengers or traffic brought into the city over the defendant’s road from Bowling Green or from the Bowling Green road, but that it should not be required to allow the cars to run over the plaintiff’s road and under the plaintiff’s direction and authority, that have also been allowed to run over the Bowling Green road, to come into the city and run over defendant’s road,and use its power; that is to say, these three cars that have not only been used upon the plaintiff’s road to accomodate its traffic' — 'Carrying passengers that come upon the cars along its line — but also used to go beyond the limits of plaintiff’s road, and to carry traffic and passengers that came from points further away may be stopped. If these passengers and this traffic came from these further points by any means possible, and at Perrysburg or Maumee came upon the cars of the plaintiff company, it is conceded that defendants are bound to carry them. Now then, in this case these cars are the property of plaintiff. There is no evidence in the case showing under what terms and conditions they are allowed to run over the Bowling Green road; and while they run over the plaintiff’s road they are operated by and are under its exclusive control, and while they run upon its tracks they carry passengers to and from Toledo and from and to points along its line; and if these cars remain on plaintiff’^ line until they reach Toledo,it is said by the defendant they have a right to come into the city over defendant’s tracks; but if at some point along the line of plaintiff’s road they are allowed by the plaintiff to run off on a side track to some other place, and pick up other traffic and passengers there and bring them onto plaintiff’s road, they are not allowed to enter the city under the provisions of this contract. We do not think the contract should receive such a narrow construction as that would be, irrespective of any question of public policy or the rights of the public to travel upon tftese roads.

We deal only with the case that we have before us, and do not undertake to discuss anything that might arise hereafter. It might be conceded that if an unreasonable amount of traffic is furnished to the defendant’s road, or an unreasonable number of cars without traffic are furnished, that the defendant would have a right to relief in some form or other; but as long as its objection is not that it is receiving traffic, but that the traffic does not originate upon the line of plaintiff’s road, but comes from some other track and by some other means reaches the plaintiff’s road, we do not believe that their objection to running these cars is well founded. We do not believe it is a substantial objection,in other words,resting upon good and solid grounds, that would authorize us to say, as we would have to say if we dismissed this bill, that the defendants have a right to put obstructions in their track, and stop the running of these cars, carrying this kind of traffic. It is stated they have to furnish power, It is true they have contracted to do that; but the ultimate object and purpose of this contract was, to get business. It is idle to seek to evade it. It was supposed when the parties entered into it, that it would be mutually beneficial to both of them. That was the idea, in making it, that to secure the proceeds from the carrying of passengers would be mutually beneficial to both roads; and to say now that because those.passengers come from a few miles south of Perrysburg they should not be allowed to come into the city under thiis contract, would put a very strained construction on it, the only ground for resting it upon, being the fact that they rode continuously from their starting point to the city of Toledo on the cars of the plaintiff, To say that this will open up the roads of the defendant to the traffic of the country around here with every railroad whose traffic may be run into the city of Toledo upon it, is begging the question. We haven’t reached that point. This conclusion does not give the right to another company or individual to run its traffic or its passengers or its cars over the tracks of the defendant company. But we think all the facts in this case concur in making these cars and this traffic, the cars and traffic of the plaintiff road, that come fairly and squarely within the provisions of this contract, which the defendants are bound to receive under this contract in the manner in-which it has been tendered to them. Therefore the injunction prayed for will be made perpetual.

Smith & Salter, for defendants.

King & Tracy, for plaintiff.


source: Caselaw Access Project

author: Dat, J.

license: Public Domain

text:
    (First Circuit-Hamilton Co., O., Circuit Court
    Jan. Term, 1897.)
    Before Day, Price and Norris, JJ.
    (The judges of the Third Circuit sitting in the First Circuit.)
    JNO. KRAUSE v. AMANDA E. STICHTENOTH et al.

      Overruling Demurrer with leave to answer, is. not final order to which error will lie.

   Dat, J.

The ruling of the court of commón pleas, sustaining the demurrer to the petition in this case, and granting leave to amend the pleading in ten days, is not a final order to which error will lie.

The petition in error is dismissed.


author: Caldwell, J,

text:
    (Eighth Circuit — Cuyahoga Co., O., Cir. Court
    Dec. Term, 1897.)
    Before Caldwell, Marvin and King, JJ.
    [Judge King of the Sixth Circuit taking the place of Hale, J.]
    THE STATE OF OHIO ex rel. THE CITY OF CLEVELAND v. THE CLEVELAND ELECTRIC RAILWAY CO.

      Mandamus — When will not lie—
    (1) . Mandamus will not lie where there is no office, trust or station which the law specially enjoins upon the defendant. Nor will it lie where the relator has a plain and adequate remedy in the ordinary course of the law.

      Acceptance by street B. B. of conditions of ordinance, or franchise by county commissioners constitutes contract—
    (2) . Under sections 2501 and 2502, when a street railroad company accepts the conditions of an ordinance which fixes the terms and conditions of the construction and operation of its road upon a street of the city, the same constitutes a contract between the city and the street railroad company. By sec. 3439, the same is true as to county commissioners where that board grants the easement to the railroad company.

      State as a party in'mandamus — Extent to which state will proceed— Public and private rights—

    (3) . Where the relator is a private corporation or an individual, and the public is in no way interested, the state, though a party, will not go beyond the point where the rights of the relator cease. But in matters where the public is concerned the state may and often will go beyond the point where the rights of the relator cease.

      Same — Complete remedy at law—
    (4) . Where the rights of the relator are fixed by contract and the relator has a complete remedy at law to enforce such contract rights, and the state cannot proceed with the action without having the contract in question first construed and then enforce it as construed, the state will leave the relator to its remedy at law.
    Error to the Court of Common Pleas of Cuyahoga county.
   Caldwell, J,

The petition sets forth that the defendant, The Cleveland Electric Railway Company, has a line of road' in the city of Cleveland, commencing at Water street and passing over Superior street, and various other streets until it reaches Cedar avenue, and then over that avenue until it reaches the easterly limits of the city. This is known as its Cedar avenue line. Being anxious to extend this line without the city limits some eight years ago, it presented its petition to the county commissioners for a grant to lay its road on Cozad street from the end of Cedar avenue line to the May-field road, and from there over certain roads to its carbarns on Euclid avenue, and on other streets named, back to the point on the Mayfield road where Cozad street comes into that road.

This easement was granted by the county commissioners with all the conditions usual as to location of tracks on the roads, paving, manner of running cars, and others.

This grant specifies no time that it shall continue. It provides that all the cars passing over Cedar avenue shall pass over the roads and streets named in the grant. This grant was accepted by the company, and the extension built and operated,

Some four years ago, by an extension of the city limits, all of the streets and roads covered by the grant before referred to, became a part of the city. The name of Cozad street was changed to that of Murray Hill avenue. Prior to the bringing of this action, the defendant ceased to run cars over Murray Hill avenue, and extended its Cedar avenue line up Cedar Cien, and so on to Murray Hill. The city council by numerous resolutions and ordinances,sought to compel the defendant to continue running its Cedar avenue cars over Murray Hill avenue. The defendant refused to comply with any, or all of said resolutions and ordinances, and this action in mandamus was then brought by the city in this court, to compel the defendant to run its Cedar avenue cars over Murray Hill avenue,

This is a statutory action, and can be brought only when the statute authorizes the same.

The defemdant claims the statute does not warrant the bringing of mandamus by the city for the relief it seeks, for two reasons: 1st. Because there is no office, trust or station, which the law specially enjoins upon the defendant. 2nd. — 'Because the city has a plain and adequate remedy in the ordinary course of the law.

Sec. 6741 provides when a writ of mandamus may issue:

“Mandamus is a writ issued in the name of the state,to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

Sec. 6744 provides when it must^ not issue:

“The writ must not be issued in a case where there ’is a plain and adequate remedy in the ordinary course of the law; and it may issue on the information of the party beneficially interested. ”

If the defendant is avoiding or violating a public duty,or easement granted by the city, then a special remedy has been given the city, in sec. 1777, Rev. Stat., which provides certain duties of the city solicitor:

“He shall apply, in the name of the corporation, to a court of competent jurisdiction, for an order or injunction to restrain the misapplication of funds of the corporation, or the abuse of it corporate powers,or the execution or performance of any contract made in behalf of the corporation in contravention of the laws or ordinances governing the same, or which was procured by fraud or corruption. And he shall likewise, whenever an obligation, or contract, made on behalf of the corporation granting a right or easement, or creating a public duty, is being evaded or violated, apply for the forfeiture or specific performance of the same, as the nature of the case may require.”

The plaintiff contends, that the obligation of the defendant to operate its road on Murray Hill avenue, is not only a contract duty, but is a corporate duty resting upon it perforce of its charter, and this duty is a trust.

There is force in this claim. Whether this is a case where the state can, and will reach out beyond the contract of the city with the defendant, and enforce this duty upon the defendant as a charter duty resulting from a trust, is a question somewhat new in this state, and not free from difficulties.

Sec. 2501, Rev. Stat., imposes upon the city council the duty of fixing the terms and conditions of construction and operation of street railroads in the language following.

“No corporation, individual .or individuals, shall perform any work in the construction of a street railroad, until application for leave is made to the council, in writing, and the council, by ordinance, shall have granted permission and prescribed the terms and conditions upon, and the manner in which the road shall be constructed and operated, and the streets and alleys which shall be used and occupied therefor; and cities of the first and second grade of the first class, and of the second grade of the second class, may renew such grant at its expiration, upon such conditions as may be considered conducive to the public interest.”

Sec. 2502, Rev. Stat., provides, among other conditions: “That no grant nor renewal of any grant for the construction or operation of any street railroad, shall be valid for a greater period than twenty-five years from the date of such grant or renewal, * * * and * * * the municipal corporation shall not, during the term of such grant or renewal, relieve the grantee from any obligation or liability imposed by the terms of such grant or renewal of a grant.”

These statutes apply to street railroad grants given by the county commissioners, as will be seen by sec. 8439, of the statutes.

When the terms and conditions of a grant are fixed in an ordinance or resolution, passed by the authority having the power to grant, and they are accepted by the railroad company, they constitute a contract binding upon both parties.

The Cincinnati Str. R. R. Co. v. Smith, 29 Ohio St., 291; The Cincinnati & Springfield Ry. Co. v. The Village of Carthage, 36 Ohio St., 631; City of Columbus v. Str. Railroad Company, 45 Ohio St., 98.

In the Cincinnati Str. R. R,. Co, v. Smith, it was contended, that the streetsjbeing in the public, the grant is a contract made in behalf of the public, in the making of which the city does not act in its own behalf as a corporation,' but as the agent of the public, in the exercise of a governing power of the state, delegated to it in the particular instance to be exercised in the mode authorized. The court cites the statute as to recording plats, showing streets, alleys, etc., and that the effect declared by the statute, is to place the streets, etc., in the corporate name, in trust to, and for the uses and purposes so set forth, and expressed or intended. The court then say:

“This vests the fee of the streets in the corporation, subject to the right of the state to direct the mode of administering the trust.”

Then, after citing the statute placing all highways, etc., in the control of the city council, and the statute granting to the city council power to grant a company authority to construct its road in a certain street, etc., the court says:

“These sections, taken together, show that the state, in its sovereign character, has reserved no property interest in the streets in question. The revenues and profits that are to accrue from the use of the streets in the mode contemplated, will be the private property of the city, in which the state has no interest whatever.”

The state has created the defendant a corporation with powers to build and operate a street railroad in the city of Cleveland. On what particular street, or streets, it may be built,on what terms and conditions it may build and operate its road, and for what time it may occupy the grant of the street, are all to be determined by the city council under such restrictions as the state has imposed upon the granting power. The grant of the county commissioners, and the acceptance of the same by the railroad, constitute the contract governing the parties, and mandamus is not the proper remedy to enforce a contract,

The city contends, that the effect of the grant given by the county commissioners without naming any length of time it is to continue, is, by implication, to extend it for twenty-five years, or at least, until the expiration of the grant of Cedar avenue. The railroad claims,it only continues at the volition of either party, both parties thus admitting that the time grows out of the contract, and is a part of it. The ultimate right they agree, is a contract right. This being true, the authorities all agree that mandamus, is mot the proper remedy.

As we have pointed out, sec. 1777, Rev. Stat., affords the city a plain and adequate remedy. It follows, that for the two foregoing reasons, this court has no jurisdiction to determine the rights of the parties by this action in mandamus.

The relator, the city of Cleveland, it is claimed,may have a complete remedy for enforcing its contract, and hence it may not be able to avail itself of the action of mandamus. Yet, the state is a party, and a party in interest, and as to-the state, the remedy provided for the city is cumulative.. That the state has created the corporation to perform a public duty upon the streets of the city, and the powers and' duties of the corporation enjoin upon it a trust, and out of; this trust arise duties to the public which the state can,, and will command it to observe, even though the city may-have another remedy.

The authorities agree, that in actions in mandamus,'where the relator is a private .corporation, or an individual, and the public is in no way interested, the state will go only so far as the rights of the relator go, in maintaining the action. But in matters where the public is concerned, the state may, and often will, go beyond the point where the right of the relator ceases. The relator may be barred from bringing-mandamus, by reason of a contract, while the state may not thus be barred. The relator may have another plaint and adequate remedy,while the state may not. A rule that the state, in such cases, often adheres to, is, that it will go no further than the relator can go if such advance step must be governed by the contract of the relator. We have seen that the state has given up all interest in the streets of ■cities, except to declare their uses and to regulate such uses. All else is committed to city councils. Not only has this ■extensive control over the streets been conferred on cities, but the remedies to enforce this authority are equally broad. This seems to point with great certainty to the intention that the city should act without the aid of the state, and that the state should not exercise its power of mandate, except, as a rule, in cases beyond the remedy given the city, or in cases of emergency, or in cases instituted by (he At'torney-General. The supreme court of our state has, so far as we know, adhered to this.

The State ex rel. the Board of County Commissioners of Ross County, v. The Zanesville & Maysville Turnpike Road Company, 16 Ohio St., 308. In this case mandamus was brought by the county commissioners to compel the Turnpike Company to repair a bridge. The Turnpike Company was a public corporation, exercising its franchise in a public 'highway. The state was urged to go beyond the remedy of ‘the relator, because there was a trust. The court say:

“Granting for the purposes of this case as here presented, ’the full competency of the parties and the binding obligation of the contract, alleged according to its terms, we look in vain for- a duty, specially enjoined by law, ‘resulting from an office, trust, or station.’ Here is no office, no ■trust, no station, within any definition of that term known to the law. It is simply an obligation arising out of contract.” * * * “We do decide, that purely contract obligations, involving no trust, cannot be enforced by mandamus.”

The writ was demanded on the ground that it was the corporate duty of the Turnpike Company to keep the bridge in repair. To this the court said: “We will assume that it is the corporate duty of the company to keep the bridge in repair; but does it follow, that the relators are entitled to the peremptory writ?” The court mention the question as to whether this corporate duty is a trust within the meaning of the statute; but in substance,-say, that to call upon the court to decide that question, some one must be relator who represents the public; and the court will not decide it where the relator relies upon a contract and represents nothing but his own interest under that contract. The city appears in its corporate capacity, and as such it has no interest but its contract. It follows, that the court should go only so far as the relator can go.

Miner Gr Norton, and Gr. L. Phillips, for the Plaintiff.

Squire, Sanders & Dempsey, for the Defendant.

Should the state undertake to go beyond this, it would at once find itself involved in the contract between the parties. The state cannot authorize the city and the railroad company to enter into a contract,among other things,determining the length of the grant, and then by mandamus compel the-company to operate its road longer than it has agreed to. This would be authorizing parties to determine their rights by contract, and then the state compelling them to act beyond the contract. This would be impairing a contract which the state can not do, at least, in this way. It follows that the state can only construe the contract as to the grant. Is it for twenty-five years, or for the unexpired years of the Cedar avenue grant, or at the option of either party? After it is construed,then enforce it for such time. All this the city has ample power to have done without the-aid of the state.

We conclude the statute of mandamus gives us no jurisdiction of this action.

The peremptory writ is refused, and the petition is dismissed.


author: Parker, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court,
    Oct. Term, 1897.)
    Before King-, Haynes and Parker, JJ.
    CHARLES E. NEWBERRY v. THE STATE OF OHIO.

      Prosecution for conveying into prison things with intention to aid 4n escape — Sec. 6902 R. S.

    Bn the trial of one charged under sec. 6902, Rev. Stat., with having conveyed into a county jail a revolver and other articles useful to effect the escape of a prisoner lawfully detained .therein, and with intent to thereby facilitate the escape1^ of such prisoner, the court charged the jury that if the defendant gave the revolver to the prisoner with the intent that he should use it to effect an eseapelwhile^he was out of the jail for a temporary purpose in the custody of the sheriff, and to be returned to the jail when such temporary purpose was accomplished, then, while so temporarily out of the jail, he was a prisoner confined in the jail within the meaning of the statute, and such intent would be an intent to facilitate the escape of a prisoner detained in the jail within the meaning of the statute. Held: Not error.
    .Action' of trial court in overruling motion fin arrest of judgment based on many alleged defects in the indictment, sustained.
    Error to the Court of Common- Pleas of Lucas county.
   Parker, J.

An indictment was returned by the grand jury of Lucas ■county, Ohio, against the plaintiff in error, charging him •with having conveyed into the jail of said county articles useful to effect the escape of a prisoner detained therein, in violation of sec. 6902, Revised Statutes, a part of which, •applicable to the case in hand, reads as follows:

“Whoever conveys, or attempts to convey, into * * * ■a jail, * * * anything useful to effect the escape of any prisoner lawfully detained therein, and with intent thereby ;to facilitate the escape of such prisoner, whether an escape be effected, or .attempted, or not, shall, if such prisoner be detained for felony, be imprisoned in a penitentiary not ¡more than three years nor less than two years”, etc.

f The indictment.after ¡"setting forth that one Harry Davis had been charged with the crime of murder in Wood county, Ohio, upon which he had been arrested and ordered into the custody of the sheriff of Wood county to await the action of the grand jury, and for which he had afterwards been indicted by the grand jury; to which indictment he had entered a plea of “not guilty,” whereupon he was remanded to the custody of said sheriff to await his trial, and had been by said sheriff conveyed to Lucas county and confided to the custody of the sheriff of said county for safe keeping, proceeds to charge that:

“Charles F, Newberry and John Muchler, Jr. after-wards, and while the said Harry Davis was and remained in the custody of the said Charles E. Tual, sheriff of Lucas county, and while so confined in said jail of Lucas county, and before the said Harry Davis had been discharged or released by any order of any court, to-wit: On the 10th day of November, 1896, at the county of Lucas aforesaid, unlawfully, feloniously and purposely did convey' into the jail of Lucas county ten steel saws, one revolving pistol, one instrument commonly called a billy, one key, one-half pint of acid,and four quarts of whiskey,being tools, instruments and things proper to facilitate the escape, and useful to effect the escape of prisoners lawfully detained therein, and the same being such instruments and things aforesaid, then and there unlawfully and purposely did deliver the same without the consent or privity of the said Charles E. Tual, sheriff of said county of Lucas, to the said Harry Davis who was a prisoner in said jail as aforesaid, ■and was lawfully detained and confined in said jail for the crime of murder in the first degree as aforesaid, upon the order of the court aforesaid, said crime of murder being a charge of felony under the laws of the state of Ohio, and the said saws, pistol’ billy, key,- whiskey and acid being such instruments and things as aforesaid, were then and there so conveyed into said jail and delivered to said Harry Davis by the said Charles Newberry and John Muchler, Jr. as aforesaid, with intent then and there to aid and assist the said Harry Davis to escape and attempt to escape”.

The conclusion of the indictment being in the usual form.

Preceding the part of the indictment which I have just read, is a history of all the steps taken in the arrest and prosecution of Davis before the return of the indictment against him by the grand jury of Wood county, and it sets forth that the warrant for his arrest was issued by the mayor of the village of Bowling Green in Wood county, to the marshal of said village and the sheriff of said county; that “Richard Biggs and Alf. Farmer were duly appointed special marshals, and took oath of office as such special marshals, to assist Joseph F. Reed, the marshal.” That said special marshal Richard Biggs, arrested the said Davis, made his return of said warrant to said mayor, “whereupon the said Harry Davis, while then and there in the custody of said Richard Biggs was then and there, before said Aimer R. Campbell, the said mayor as aforesaid, charged in due form of law upon a complaint in writing upon the oath of one Alf. Farmer with having unlawfully, purposely, feloniously, and with deliberate and premeditated malice, killed one Jesse Baker, whereupon the said Harry Davis was duly arraigned before the said mayor upon said charge, and upon hearing said complaint read, pleaded not guilty to the same, and then and there did waive an examination and requested to be bound over to the court of common pleas of Wood county, Ohio. ” That he was held accordingly without bail. !‘Whereupon the said mayor issued a commitment for said Harry Davis addressed to the keeper of the jail of said county of Wood, commanding him to receive the said Harry Davis into his custody in the jail of said county there to remain until he be discharged or dealt with by due course of law, and delivered the said commitment to Joseph F. Reed, the marshal of said village of Bowling Green, and afterwards, upon the same day, the said Joseph F. Reed,marshal as aforesaid, delivered the body of the said Harry Davis then and there into the custody of said Richard Biggs” the sheriff and keeper of the jail of Wood county, who detained and confined him in said jail . That afterward “there being no sufficient jail in said county of' Wood in which to safely detain and confine said Harry Davis while awaiting his said trial the said Harry Davis-was, together with a copy of the commitment under which he was so detained and confined, delivered by said Richard' Biggs, the sheriff of Wood county, to Charles B. Tual, the duly elected, ‘qualified and acting sheriff of Lucas county, • Ohio, the said Lucas county being a county in the state-of Ohio, which adjoins the said county of Wood”. That-said sheriff of Lucas county received said Davis, and detaind and confined him in the Lucas county jail. That afterward, the grand jury of Wood county returned an indictment against said Davis charging him with murder in the first degree in the killing of said Jesse Baker, and that-said Harry Davis was arraigned upon the said indictment and entered a plea of not guilty, thereto; “and it was by the said court ordered that the said Harry Davis be tried at' nine o’clock in the forenoon of the 23rd day of November, A. D. 1896, and that the said Harry Davis be and remain-in the custody o'f the sheriff of Wood county to await his-trial uponjfhe said 23rd day of November, 1896, and thereupon the said sheriff of Wood county delivered the said body of the said Harry Davis back to the sheriff of Lucas; county, and the said Harry Davis was by the sheriff of Lucas county again confined and detained in the said jail of' Lucas county.’’ Then follows the part of the indictment which Í have read, charging Newberry and Muchler with having conveyed certain articles named into the jail of Lucas-county with the intent charged.

I have been particular in quoting from the indictment so that what I may say upon certain points urged against its-sufficiency may be better understood.

No exceptions were taken to this indictment until uponi the trial an objection was made to the introduction of cer tain evidence upon the part of the state, and after the trial, (which resulted in the conviction of the plaintiff in error), when, by a motion for á new trial, and a motion for arrest of judgment, the sufficiency of the indictment was challenged.

After the plaintiff in error had plead to the indictment, and the trial of the cause had begun,it was too late to raise objections to any faults in the indictment that amounted to mere defects in its form or in the manner in w hich the offense was charged. Sections 7249 and 7253,Revised Statutes, Bartlett v. State, 28 Ohio St., 669. So we need only consider such alleged defects as may be taken advantage of by-demurrer before plea, or by motion in arrest of judgment after trial and conviction. The motion in arrest of 'judgment in this case sets forth with particularity the defects which plaintiff in error claims, appeared upon the face of this indictment, to-wit:

1st. That it fails to show that at the time the mayor issued his warrant against Davis there had been filed with him an affidavit charging said Davis with an offense.

2nd, That it fails to show the proper and legal appointment of Richard Biggs and Alf Farmer as special marshals to assist Reed, the marshal of said village of Bowling Green.

3rd. That it shows that said warrant was issued to said marshal and to the sheriff of Wood county, and was served by the special marshal, Richard Biggs, thereby showing that said special marshal had no authority to arrest said Davis.

4th. It shows that Davis was arrested by said special marshal and was in his custody when he was arraigned before said mayor, and that thereafter said mayor issued a mittimus directed to the marshal of said village, and fails to show how the marshal obtained custody of said Davis.

5th. It fails to show that said mayor certified to the clerk of the court of common pleas of Wood county, a transcript of his records in the matter alleged to have taken place before him in the ease of the State of Ohio v. said Davis, and fails to show how said court of common pleas acquired jurisdiction over said matter.

6th. It fails to show that said mayor had jurisdiction of said cause, because it fails to show that the crime had been committed within the county of Wood, or within the limits of said village.

7th, It fails to show that said Davis, after having been put into the custody of the sheriff of Lucas county, was delivered to the sheriff of Wood county by virtue of a writ of habeas corpus issued by the court of common pleas of Wood county,as provided in sec. 7386, Rev. Stat.

8th. It fails to show that after said Davis was arraigned and entered his plea of not guilty to the indictment returned against him by the'grand jury of Wood county, the sheriff of Wood county found the jail of said county to be insufficient to hold the body of said Davis, and also fails to show that said sheriff found the jail of Lucas county most secure, as required by section 7382 of the Revised Statutes.

9th. It fails to show that after the arraignment and plea of said Davis he was delivered by the sheriff of Wood county to the sheriff of Lucas county with the copy of commitment by virtue of which said sheriff of Wood county held him, as required by. section 7383 of the Revised Statutes.

10th. That it fails to show on its face that whiskey is a thing useful or proper to effect the escape of said Davis.

11th, It fails to show that it was intended by said defendant Newberry to aid and assist the said Harry Davis to escape or attempt to'escape from said jail of the county of Lucas.

12th. It fails to show that at the time said things were alleged to have been conveyed into said jail, the said New-berry knew that said Davis was lawfully confined in .said jail.

13th. It fails to show that at the time the sheriff of Wood county first delivered the body of said Davis to the sheriff' of Lucas county, he tendered to said sheriff of Lucas, county the fees provided by section 7384 of the Revised Statutes, or that such fees were tendered the second time said Davis was removed to the jail of Lucas county.

It is urged by counsel for plaintiff in error, that because of these alleged apparent irregularities in the steps taken to effect the arrest and detention of the prisoner Davis, and of' the alleged failure of the indictment to show certain steps necessary to the legality of his arrest and detention, the alleged assistance given him by ' the plaintiff in error to-effect his escape was not, or could not have been illegal or criminal. In short, that it not being charged or shown that Davis was legally detained in the jail of Lucas county, the plaintiff in error might have lawfully conveyed into said jail articles useful to effect his escape while he was there detained. It is contended that the true criterion for determining whether the detention of Davis wras so far unla'wful as. to justify acts which would be a violation of sec. 6902 if the-detention were legal, is to be'found by inquiry and finding-whether the discharge of Davis from such custody could have been effected by a writ of habeas corpus — that is, if' his discharge could have been -thus effected, then any act or-effort to effect his escape or liberation would have been lawful. Without endorsing this proposition, we are willing to-resort to this criterion, since, by so doing, we cannot fall into any error that will be prejudicial to the plaintiff in error.

Our views and conclusions upon the several alleged defects in the indictment touching the proceedings leading up-to the detention of Davis in the Lucas county jail, make it unnecessary for us to discuss them severally or in detail.

It has been shown that by process or means, regular or irregular, Davis was brought before the mayor of Bowling-Green, and was arraigned upon a written charge of murder-in the first degree, and that thereupon he was committed to the custody of the marshal of the village who delivered him into the custody of the sheriff and jailer of Wood county to be detained until discharged according to law, and that, upon this order of commitment, a mittimus was accordingly issued to said marshal. That this action was taken upon Davis having entered his plea to the charge, and having waived examination and requested that he be bound over to court.

It has also been shown that the-indictment charges that when Davis was delivered by the sheriff of Wood county into the custody of the sheriff of Lucas county, the said Charles E. Tual received from the sheriff of Wood county a copy of said commitment.

We hold that thereafter his discharge could not have been effected by habeas corpus on account of any illegality or irregularity in or about his arrest or any of the proceedings prior to said commitment.

In Dows’ case, reported in 18 Pa. St., 37, the law is laid down in the syllabus as follows:

“In the case of the escape of the fugitive from justice from this state to Michigan, after having been charged in this state by indictment with forgery, his arrest in the latter state without legal authority possessed by those who made it, will not entitle the prisoner to discharge before prosecution, his release not being demanded by the executive of Michigan.’’

Dows was a fugitive from justice from the county of Allegheney, Pennsylvania, being at the time he fled, charged by indictment with forgery and with obtaining money' under false pretenses, and it having been ascertained that he was in the state of Michigan, a requisition was made by the governor of the state of Pennsylvania upon the governor of Michigan, upon which the governor of Michigan issued a warrant for the arrest of Dows; but he was not arrested in pursuance of that. He was arrested at Detroit by the officers of the steamer “Ocean” when on board said boat,and was carried away into the state of Pennsylvania, and there delivered to the sheriff of Erie county, and conveyed to Pittsburgh and lodged in jail. The arrest was without a warrant, and by persons not authorized to make the arrest. That the arrest was illegal was assumed by the court deciding the case, and it was said, that if the prisoner had been demanded by the governor of the state of Michigan, the Pennsylvania authorities would probably have been required to surrender him up to the state of Michigan. But it was held that the rights of sovereignty of that state did not reside in the prisoner, and he could not assert them; and that,on.his own account, he could not assert the want of authority for, or the illegality of his arrest as a reason why he should not be detained and prosecuted. In the opinion of the court many cases are cited in support of this doctrine, and it is said that it has been formally established and is founded on a principle of universal law.

Sections 5729 and 5741, Revised Statutes, (being parts of the chapter on habeas corpus),seem to us,standing alone, to furnish sufficient authority in support of this conclusion,

“Sec. 5729. If it appear that the person to be restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment or order,”

“Sec. 574Í. When the judge has examined into the cause of caption and detention of the person so brought before him, and is satisfied that he is unlawfully imprisoned or detained, he shall forthwith discharge him from confinement. On such examination the judge may disregard matters of form or technicalities in any mittimus or order of commitment by a court or officer authorized to commit by law.”

See also the cases of Hatch v. Sheriff, 2 C. C., 163; Madden v. Smeltz, 2 C. C., 168; State ex rel. v. Hamilton, 3 C. C. 10; In re. George, 5 C. C. 207-210; and Ex parte Mosler, 8 C. C. 324-325; which are holdings under these sections more or less in point, but which we will not now take the time to discuss.

The indictment sets forth that an order of commitment was issued, etc. It must be presumed that this was in due form, which required, (as provided by sec. 7188 Rev. Stat.), that the prisoner should be received into the custody of the officer “in the jail of the county aforesaid, there to remain until discharged by due course of law.”

If the proceedings in transferring the custody of Davis tc the sheriff and jail of Lucas county were otherwise lawful, we hold that his detention of the prisoner could have been justified under this warrant or demand; but, assuming without deciding that the charge in the indictment that Davis was confined and held “upon the order of the court aforesaid” (to-wit: upon the order for his detention made by the court of common pleas after he had entered his plea to the indictment), would preclude the state from relying, in this cas'e, upon any other order or warrant of commitment which had come into the hands of the sheriff of either county, we proceed to consider how the matter stands upon that order of the court.

We think it too'plain to require extended argument or much citation of authorities, that after Davis had entered his plea to the indictment without taking any exceptions to the steps in his prosecution preceding the indictment, it was too late for him to mak9 such objections even if such steps had before then been open to objection; and that, upon his entering such plea, it was within the power of the court to order him committed to await further steps in the case. Indeed, the court was not authorized in the case of murder in the first degree, to make any other oraer, and we hold that this order of the court was sufficient in itself to justify the detention of the prisoner by the proper custodian at a proper place, even though upon it, or in pursuance of it, no written authority had been placed in the hands of such officer. That if Davis had sought his liberation by habeas corpus proceedings, it would have been good and sufficient answer to his petition for the officer to set forth the pendency of the prosecution and the order of the court for his detention. Even if this is not correct,it does not follow that the detention of Davis would have been unlawful, for the war.rant or order of commitment might have issued after the writ of habeas corpus had been allowed, and in such case it would afford a justification for the holding of the prisoner when the matter should come on to be heard in the habeas •corpus proceeding, and we have no doubt an attempt' to hold the sheriff or jailer liable for false imprisonment in the interim would be defeated by an exhibition of this order of the court. Surely the plaintiff in error cannot claim greater rights, privileges or immunities in the premises for Davis and as a shield for himself than Davis could have availed himself of on his own account. In support of our conclusions upon this point we cite. The People ex rel,. James Trainor, appellant v. Samuel Baker, keeper etc., respondent, 89 N. Y., 460. A case (the title of which has escaped me) in 114 U. S., 417; and 9th American & Eng. Ency. of Law, 190.

The contention that because there was irregularity in the arrest and preliminary examination of Davis and a failure upon the part of the magistrate to certify a transcript from the records of his proceedings to the court of common pleas, the grand jury was without authority in the premises so that the indictment was unauthorized and invalid, and the imprisonment of Davis upon it was consequently unlawful, we ■deem utterly without foundation. It is entirely clear that 'the indictment needs no such support; that the grand jury -was authorized to inquire into the matter wi thout regard to whether there was or was not a preliminary examination, and that no possible irregularity, informality or illegality in the steps before, or proceedings upon the part of the magistrate could in any way affect the validity of the indictment, or the detention of the prisoner in consequence of such indictment.

It is also urged that because the prisoner was not returned to Wood county to plead to the indictment by virtue of a writ of habeas corpus, as provided by section 7386 of the Revised Statutes, his conveyance to Wood county on that occasion was unlawful',and that it follows that his subsequent detention by the sheriff of Lucas county, in the Lucas county jail, was also unlawful. We do not concur in the view that the transportation of the prisoner from the jail of Irncas county to the presence of the court in Wood county to plead to the indictment was unlawful because no writ of habeas corpus was issued for that purpose. The sheriff of Wood county was authorized to produce the prisoner, and he held him in his custody on that occasion by virtue of the order .of the magistrate and the mittimus before adverted to precisely as if he were bringing him from the Wood county jail to the court room for the same purpose; and while the sheriff of Lucas county might, have insisted upon a writ oi habeas corpus before surrendering the prisoner to the custody of the sheriff of Wood county, yet, his not having insisted upon it, did not in any way affect the legality of the detention and transportation of the prisoner from the Lucas county jail to the Wood county court house and his return to the Lucas county jail, but, if it were true that on this occasion the prisoner Davis was unlawfully surrendered, transported and returned, it does not follow that his subsequent detention by the sheriff of Lucas county would be illegal. Such act, even if unlawful, would not be so incurable and of such permanent and extensive influence as to vitiate all prior and all subsequent steps in the course of prosecution. It has been said by way of illustration that if the sheriff of Lucas county had taken the prisoner across the line into the state of Michigan, he could not have there lawfully restrained him of his liberty because of the lack of authority of the sheriff in that state. Conceding that this is true, if the sheriff had by any means secured the return of the prisoner to Lucas county he might there take and hold him,and the fact that the prisoner had been unlawfully detained for a season in Michigan would not affect the legality of such subsequent taking and holding.

Sec. 7382, Rev. Stat., reads in part as follows:

“The sheriff or person acting as such in any county having no jail or no sufficient jail shall convey any person charged with the commission of an offense or sentenced to imprisonment in the county jail, or in custody upon civil process, to the jail of such adjoining county as he deems most convenient and secure.’’

It is contended that, because the indictment in this case does not set forth that the sheriff of Wood county deemed the jáil of Lucas county most secure, therefore it does not appear that Davis was lawfully imprisoned in Lucas county, and that it follows that the plaintiff in error could not have been guilty of a violation of law in conveying into said jail and putting into the possession of said Davis, materials and things useful to effect his escape. If it should appear that the sheriff of Wood county did not deem the jail of Lucas county most secure for the purpose mentioned, would it follow that the imprisonment of Davis therein, would be so far illegal that a person might lawfully do what is charged against the plaintiff in error? We think not.

Coming back to the test suggested, if Davis had applied to a court for a writ of habeas corpus to secure his release from such jail, and had alleged as a ground that the sheriff of Wood county did not deem that jail most secure for the purpose stated, what would have resulted from this?

If a court should so-far consider it as to admit proof of the fact and as to regard it as something affecting the. rights of the petitioner in the premises, certainly it would not go so far as to discharge him absolutely from custody, and would go no farther than to order his transportation to a proper and lawful place of confinement. We doubt if'it is a matter touching or affecting the rights of the prisoner at all, and we are clear that it is not a necessary averment in this case, and that, if it were contained in the indictment,it would not be traversable; it would not be necessary to prove it,it would be,in short,merely surplusage; and, I may as well say here, that from our conclusion that the prisoner was lawfully held under the order made upon his entering his plea to his indictment, it follows that all of the averments in the indictment in this case of the steps leading up to the indictment of Davis were unnecessary; but since they* are here, we do not say that they need not be proved as stated.

On the point that the indictment fails to charge that the plaintiff in error knew that Harry Davis was lawfully confined in the Lucas county jail, we deem it sufficient to cite the case of The State v. Hilton, 26 Mo., 199, in which the court say: “That the custody of a person in the hands of a public officer would imply notice that the prisoner was lawfully held, and the rescue would be at the peril of the party making it. ’’ This states a general principle applicable to the case at bar. -

It is also urged that the indictment is defective: 1st. Because it shows on its face that whiskey is not a thing useful, or proper, to effect the escape of a prisoner; and 2nd. It does not appear affirmatively, by proper averments, that whiskey could,or might have been useful to effect such purpose in this case. Counsel undertake to make a distinction between such articles as appear naturally -to bé useful for such purpose, and such as do not appear to be so, but may be shown to have been so in a particular case. Or, otherwise stated, between such as’are per se useful for the purpose .stated, and such as may be shown by proper averments to have been useful for such purpose; and it is said •that such articles as explosives, fire-arms and saws, come within the first category, while articles like water, whiskey, etc., no apparent use of which could be made for the purpose stated, come within the second category. No authority is cited in support of this attempted distinction, and we ■are of the opinion that there is no basis in reason or authority for it, and that a general averment on the subject, like that in this indictment, following the language of the statute, is sufficient; but of course,the proof must show and satisfy, the jury that the articles named were, or may have been useful for the purpose of effecting the escape of the prisoner. The testimony in this case tended to show that the whiskby was used to stupefy prisoners and others about the jail,so tjaat they might not be aware of the work being done by Davis to effect his escape, sawing at the windows, etc., and that Newberry knew of this use. We think the question was properly submitted to the jury as a question of fact under proper instructions, though we will not say that the evidence as to the whiskey alone, was sufficient to support the verdict.

The point is also made against the indictment and against the evidence, and the charge of the court, that it must be averred and proved that the intent of the plaintiff in error, was to facilitate the escape of the prisoner, Davis, from the Lucas county jail. This is not charged in the indictment, and the proof tends to show that the articles conveyed by the plaintiff in error to the jail, were to be used by the prisoner, Davis, 'while he was temporarily outside the walls of the prison. The charge of the court upon the subject, to which exceptions are taken, reads as follows:

“¡“But if the defendant gave the revolver to Davis with the intent that he should use it to effect an escape while he was out of the jail for a temporary purpose, in the custody of the sheriff of Lucas county, and to be returned to the jail when such temporary purpose was accomplished, then, while so out of the jail, he was a prisoner confined in the Lucas county jail, within the meaning of the statute, and such intent would be an intent to facilitate the escape of a prisoner detained in the jail, within the meaning of the statute.”

We concur in this construction of the law.

We have attempted to notice the principal objections urged against this indictment — those that seemed to us to-be most worthy of consideration. We cannot touch upon every point urged against this conviction, as the record, which is very voluminous, is bristling with exceptions, and proves that counsel for the plaintiff in error,have been alert and careful to preserve his rights and save every possible question; and we feel like commending the care and industry, the indefatigable efforts of counsel for the plaintiff in error in his behalf, not only in this court, but, as made apparent by this record,in the court below.

We find no errors prejudicial to the plaintiff in error occurring upon the trial of the case, either in the admission or rejection of evidence or otherwise; and we find no error in the charge of the court, or in the action of the court in refusing to charge certain propositions requested. It would serve no good purpose to review the evidence in this case, but it is sufficient to say that we have read it carefully, and are of the opinion that it supports the verdict. In a word, we find no error in this record, and therefore the judgment of the court below is affirmed.

The opinion of Judge Pugsley, in passing upon the motion for a new trial and the motion in arrest of judgment, has been banded to us. We did not consider it, or even look at it at all, until we had reached our conclusion in this case, when, upon its perusal, we are pleased to say, that we. ■found the reasoning and conclusions of the learned judge to agree with our own. In so far as we have not covered the subject, we will say that we eoncur in his reasoning and conclusions.

W. H. Harris and Marshall & Fraser, for Plaintiff in Error.

C. F, Sumner and W. G. Ulery, for Defendant in Error.

I wish to say in conclusion, that the defendant appears to have been very ably defended, and to have had a fair trial. The crime, under the circumstances was one that was especially reprehensible in view of the fact that the prisoner .Davis, was in the custody of the plaintiff in error, who was bound to see that he was safely kept and held; therefore, there is more moral turpitude attached to the act than there would have been if it had been committed by a person not intrusted with the custody of the prisoner — a person having no duty devolving upon him in the premises; and we think that the judgment and sentence is moderate under the circumstances.


author: Day, J.

text:
    (Third Circuit — Marion Co., Circuit Court,
    September Term 1897.)
    Before Day, Price and Marvin, JJ.
    (Judge Marvin, of the Eighth Circuit, taking the place of Judge Norris.)
    ISAAC E. OSBUN v. SAMUEL H. BARTRAM.
    ■ Action against several defendants on joint liability — Judgment by default a,gainst one joint defendant before determination of case erroneous—
    In an action to recover on a claimed joint liability, arising on a joint contract of lease, against a number of defendants, who are jointly sued, and against whom a joint judgment is asked, it is error for the court to render a several judgment on default against one of the defendants, without first trying and determining the rights and liabilities of all the defendants, touching such claim.
    Error to tha Court of Common Pleas of Marion County.

      The facts, as they appear from the record in this case, are as follows: S. H. Bartram, defendant in error, was plaintiff in the lower court, and brought suit on a joint claim in his favor, arising on a joint contract of lease, against Osbun and four other persons; and in his petition stated a joint cause of action against all of them, with a prayer for a joint judgment, Summons was issued and served on all the defendants; all of them answered,in some form or other, except Osbun, who did not answer or demur but made default, and was in default for answer at the time of the rendition of the judgment against him. Afterwards, on the 18th of January, 1897, and before any trial on the merits was had, or any inquiry or investigation was made in the matter, as to the rights or liabilities of any of the defendants, the court on motion of the plaintiff Jfor that purpose, rendered a several judgment on default, for the full amount of the claim, against Osbun individually. The court overruled a motion to vacate and set aside the judgment, but it was allowed to stand, and was entered on the record and now stands as a valid and subsisting judgment against Osbun, who prosecutes error and seeks a reversal of the judgment on the grounds that it was erroneously given and entered. ’ *
   Day, J.

The single question presented by this record is: was it error for the court to render a several judgment against one party to a claimed joint liability, in advance of a trial, or inquiry and finding, as to the rights and liabilities of the other parties defendant?

It was the rule of the common law that where a joint contract or joint liability was the subject of an action, the recovery, if one was hád, must be against alio? neither of the defendants; and that rule is still in force, except 'in so far as it has been modified by statutory provisions. It has not been entirely abrogated, but has been modified, and to an extent only, by the provisions of sections 5311, 5312 and 5313, Revised Statutes. The-provision of section 5812 is as follows: “In an action against several defendants, the court may render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.’

The provisions of this section do modify the rule of the common law and authorize a several judgment, on a joint liability; but only when it is proper to render a several judgment. The court must notice the situation and conditions obtaining, m any given matter, in order to determine 'the proper action to be taken therein; and the question as to whether it is proper to render a several judgment against one of a number of defendannts, where a joint claim is asserted against all, can only be ascertained by an examina"tion of the facts. Clearly the modified rule requires a trial, or, at least some kind of an inquiry, and ascertainment, by the court, of the relative rights and liabilities of all the defendants, as a condition precedent to the rendering of a several judgment against either of them.

The decision of the supreme court in the case of Aucker v. Adams & Ford, reported in the 23 Ohio St., 543 is exactly in point and is decisive of this case. The third syllibus is as follows: 3. “ Where a joint suit against all the obligors in a bond is the only remedy of the plaintiffs thereon, it is error, under the provisions .of section 371 of of the code; for the court to render a several judgment against one or more of the defendants, leaving the action to proceed against the others.’’ Judge Mcll-vaine for the court, on page 550-51 discusses the question presented by this record. He says: “There can be no doubt that the cases wherein it -is improper to render a several judgment against one or more of the defendants, leaving the action to proceed against the others, are limited, as a general rule at least, to actions founded on joint contracts,’’ * * * * ‘ ‘This construction of the section harmonizes more fully with the general system of practice introduced by the code, and especially with the provisions of sections 38 and 77 of the code. So that, the rule would seem to be, that the court, in its discretion, may render a judgment against one or more of the defendants, leaving the action to proceed against the others whenever it appears that the plaintiff might have demanded a several judgment on the contract if he had elected to sue tjhe defendants separately. On the other hand in all cases, where the subject matter of the action is such that the plaintiff could not have prosecuted several actions, his only remedy being to demand a joint judgment in a joint action, he cannot have a several judgment against any of the defendants until the liability of each and all the defendants has been determined upon final trial of all the issues in the case. Upon such final trial, if all the defendants are found to be liable, then judgments should be rendered against all; and if some only are found to be liable and others not, the judgment should be against those found to be liable, and in favor of those who- are found to be not liable.”

Charles F. Garberson, for Plaintiff in Error.

8. H. & J. H. Bartram, for Defendant in Error,

We are of opinion there was error in the action of the court below, in rendering a several judgment against the plaintiff in error, on default and before a trial was first had, to ascertain and determine the relative rights and liabilities of all the defendants; and for that reason alone the judgment is reversed and remanded for further proceeding in accordance with law.


author: Haynes, C. J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    SARAH M. CULVER v. JOHN H RAGAN, et al.

      Building of blacksmith shop near a dwelling house in village — Injunction—
    Plaintiff sought to restrain defendant from moving a building upon a lot in the village of Bowling-Green and use of the same for a blacksmith shop:

      Held: Under the facts of the case an injunction should not have been allowed.
    Error to the Court of Common Pleas of Wood county.
   Haynes, C. J.

In this case a petition in error is filed to reverse the judgment of the court of common pleas in a case wherein Sarah M. Culver was plaintiff,and John H. Ragan and Jacob Snyder were defendants.

The case was beard upon the petition and a demurrer thereto, the petition being for an injunction,and setting out that the plaintiff, Sarah M. Culver, is the owner of the west thirty two feet of lot number one hundred and twenty nine (129) in the village of Bowling Green; that she and her husband for many years have, and still occupy a brick dwelling house thereon.and that its value is six thousand dollars; that the defendant, Ragan, has secured a lease of the lot immediately west of her lot, and is about to move an old unsightly frame building,one story in height, from another portion of the village, and will use it to carry on the business of horseshoeing, general blacksmithing and repairing of all kinds of vehicles; that he will place in the building, forges, anvils and other tools necessary to carry on such business; that he will use in his blacksmith business, large quantities of bituminous coal, thereby causing to be generated large quantities of smoke and soot which will escape through a low chimney in said shop, and be carried by the wind against, upon and into her house; that the soot and dirt will settle on her roof, and she will be unable to use her cistern water for domestic purposes; that she has seven windows on the west side of her house which she must keep open, and the said smoke will enter her house and befoul it and the contents; that the stench of burning hoofs and hoof parings incident to horseshoeing will pass from the shop to her dwelling and cause her and her family great discomfort and annoyance; that the noxious'1 smells and gases from the odor of the horses brought to and kept standing in said shop will float upon the atmosphere and into her rooms; that there will be a constant stamping and neighing of horses, and constant noise from the anvils which will be very disagreeable; that because of the very inflammable character of the furnaces to be used therein, the sparks from the chimneys to said furnaces will greatly endanger her dwelling and prevent her from obtaining re-insurance upon her dwelling, and that the value of her property will be greatly reduced if the defendant is permitted to place and use said building as aforesaid.

An injunction was granted. A demurrer was filed to the petition which was overruled, and the defendants not desiring to plead further, appealed the case to the court.

We think the court ought not to have allowed the injunction in the case, at the time it did. In the first place, carrying on the business of a blacksmith is a usual and very respectable business. It must be carried on somewhere. It certainly, unless there is some extraordinary reason for not carrying it on, should be allowed to be carried on in' the village of Bowling Green.

- This building was to be placed on a lot near the business portion of the village, and the right to do that we think is perfect in the defendant. He has a right to put his building there unless there is some ordinance or some authority of the village to restrain him from putting it there. The defendant has a right to carry on his business of blacksmithing if he does it in an ordinary and peaceable manner, and the court should have waited.until the work was commenced and the manner of carrying on that work was ascertained before it prevented the use of the building at all.

It may be that in carrying off smoke the chimney might, be so constructed as to carry it over and beyond the dwelling in question. It is true that coal smoke is not a very nice thing either in a city or village, but if you use coal you must have smoke. As used in a city, it comes down sometimes in large clouds, and is to’ some extent quite annoying, but nevertheless, people who live in cities must endure inconveniences and annoyances of that kind for the common benefit of all; They cannot have all the benefits of solitude and all the benefits of a city at the same time.

We think, also, that people would have a right to bring their horses to the shop to be shod, and in standing there they will be no more offensive than farmers bringing their horses to town and hitching them to hitching rails on the street,and allowing them to stand there.

The work in the shop can be carried on, we think, without any great amount of inconvenience or annoyance to the plaintiff. It is possible there might be at times some noise from the anvils as there is noise from wagons or omnibuses or street cars, and a thousand and one things in a city. People who live in cities may live where street cars change and cross and where there is a continuous noise. In fact, upon the main streets of a city like Toledo there may be so much noise that a person can hardly do business, yet this has to be endured in a city. We think that blacksmithing is a business that has to be done, but if the defendant was carrying it on in an unusual manner, he could be restrained.

It was my duty to sit in a case in Cleveland wherein the Transfer Company of Cleveland had established in the upper part of the city on a lot adjoining,I think, the house of Judge Hutchins, a barn where they kept horses and carriages in order to reach the railroad depots quickly, and there was great complaint made in that case in regard to horses standing there, from the odors that arose from the urine,etc., and after a full discussion of the case the court made some orders that should limit the manner in which the horses were to be kept, but we did not attempt to abate that 'business. They had the same question in regard to the car stables located on Ashland Avenue in ' Toledo, but they never obtained an order from the court to have them removed. They were controlled to some extent in the manner of carrying them on, but they were not abated.

Means & Haskell, for Plaintiff.

A. R. Campbell, for Defendants.

We are very clearly of the opinion in regard, to the case under consideration, that the action of the court was premature, and that the judgment of the court should be reversed, and the case sent back for hearing and trial. As we have indicated, we think no order should be granted by the court until there is an actual possession taken of the premiseSj and some action on the part of the defendant which indicates the manner in which he is to exercise his trade. There is no reason why the defendant should be compelled to go outside of the village limits to do business, or why a person who wishes to have his horse shod should have to follow the shop outside of the village limits.

The judgment of the court of common pleas is reversed and the cause remanded for trial.


author: Bv the Court:

text:
    (Third Circuit — Hancock Co., Circuit Court
    December Term, 1897.)
    Before Day, Price and Norris, JJ.
    WATSON A. FRANCE et al v. THE PEERLESS REFINING CO. et al.

      Where a receiver is appointed in c proper case by a court of competent jurisdiction of one county, it is error for such court, on mere motion, to discharge such receiver and order him to turn over the property to an assignee subsequently appointed by a court of another county, before hearing the case on its merits—
    Error to the Court of Common Pleas of Hancock county.
    On a petition filed for that purpose, a receiver was duly appointed for the Peerless Refining Company, a corporation having its principal place of business at Findlay, Ohio, by a judge of the court of common pleas of Hancock county, at Chambers, on August 13, 1897. Such receiver at once qualified and entered upon the discharge of his duties, was put in possession and control of the property and assets of the company, and was proceeding to administer his trust; when, on the 5th day of November, 1897, on motion of the defendant company to discharge such receiver, the court of common pleas, in advance of a trial -of said cause on its merits, sustained the motion and ordered the discharge of such receiver, and that he turn over, all the property and assets of such company in his possession, as such receiver, to an assignee appointed by the probate court of Cuyahoga county, subsequent to the appointment and possession of such receiver.
   Bv the Court:

Regarding the petition as an application for the appointment of a receiver, the facts stated therein, showing insolvency of the corporation, frauds and mismanagement of its board of directors and managers, to the detriment, present and prospective, of the corporation,its stockholders and creditors, justified the appointment of the receiver for the purposes specified in the order of appointment; and the receiver having qualified and entered upon the trust by being put in possession of the property and assets, and proceeded in execution of the order of appointment, the matter was within the grasp of the law for all proper purposes appearing upon a trial of the case on its merits; and, under the averments of the petition, and the facts appearing, it was error, for the court, on .a preliminary motion, in advance of such trial and disposition of the case on its merits, to discharge the receiver and relinquish the possession of the property and assets received by him, to an assignee subsequently appointed in another jurisdiction.

Thomas Meehan and Elijah T. Dunn, for Plaintiff in' Error.

Ross & Kinder, and Judge Blandin, for Defendants.

The order of discharge is reversed, with costs.