author: POWELL, J.

text:
    ASSESSMENTS,
    [Tuscarawas (5th) Court of Appeals,
    December 17, 1915.]
    Powell, Houck and Shields, JJ.
    Wincuell v. Dennison (Vil.)
    1. Special Assessments for Street improvements Limited to Benefits.
    Special assessments for improvement of the streets of a municipal corporation, cannot be levied and collected from property hounding and abutting on such streets in excess of the special benefits accruing to such property from such improvement except by special agreement and consent of the owners of such property.
    2. Signature of Abutter on Petition for Improvement Waives Limitations of Assessments, but not in Excess of Benefits.
    Where the owner of property abutting on a street in a village signs a petition, with others, to the council of such village, asking for the improvement of such street, under the provisions of Sec. 3836 G-. C., he thereby waives the limitation of assessments for the method of assessment designated in said petition, not however, in excess of the special benefits conferred on his property by the construction of such improvement.
    3. Waiver of Limitation of Special Assessment to Special Benefits Requires Abutter's Consent Express or Implied.
    The owner of a lot abutting on a street in a village may waive the limitation of a special assessment to the special benefits conferred on his property, but such waiver must be with his consent and agreement, either expressed or necessarily implied.

      J. A. Buchanan, for plaintiff in error.

      A. W. Elson. for defendant in error.
   POWELL, J.

This is an action to enjoin an assessment levied against a lot in the village of Dennison belonging to the plaintiff, A. F. Winchell, by the council of said village, or so much thereof as is in excess of the special benefits accruing to said lot by tbe improvement of McCrea avenue, on which said lot abuts.

No question is made as to the regularity of the procedure which resulted in the levy of the assessment sought to be enjoined. Complaint is made by plaintiff that said assessment exceeds in a substantial degree the special benefits received by the construction of the improvement for which said assessment was made and it is contended by defendant that plaintiff is estopped from complaining of said assessment and from maintaining this action for two reasons—

1. That he knew of the construction of said improvement and aided in its promotion, without objection until the same had been completed, although he had full knowledge of the manner in which the assessments for the improvement were to be made.

2. That he with other lot owners filed a petition with the council of said village, asking for such improvement to be made, and by the terms of which he waived all rights as to the limitation of the assessment to be made.

Trial was had in the court of common pleas and a special finding of fact was made, which, with the court’s conclusions of law and the judgment rendered thereon, is brought to this court for review.

The finding of fact shows that the lot of plaintiff was enhanced in value by reason of said improvement in the sum of $175; that the special assessment levied against the same for its proportionate share of the cost of said improvement was the sum of $472.50 or the sum of $297.50 in excess of the special benefits conferred.

The principle on which special assessments may be levied on private property for the expense of local public improvements is thus stated by our Supreme Court:

' “1. The fundamental principle underlying an assessment made on property for the cost and expense of a local public improvement is, that the property is specially benefited by the improvement beyond the benefits common to the public, and that a ratable assessment of the property to the extent of these benefits violates no constitutional right of the owner, and is just and proper. But it can in no case exceed the benefits without impairing the inviolability of private property.” Walsh v. Barron, 61 Ohio St. 15 [55 N. E. 164; 76 Am. St. 354].

The authority to levy special assessments to the extent of special benefits is justified in that it is a benefit to the general public as well as to the owner of the property, and it is in legal .. effect analogous to the exercise of the police power of the state for the general benefit. But any excess of assessment over the special benefits conferred is in violation of the- rights of private property and is in conflict with Art. 1, Sec. 19, of the Ohio constitution.

This rule applied to this case would show plaintiff entitled to the relief prayed for by him unless it appears that for some act of his own he is not entitled to the benefits of the rule.

The defense makes this claim upon two separate grounds, viz., estoppel and waiver. If -either of these grounds operates to defeat plaintiff’s claim, it must be by reason of some act of his own, or by some omission to act when he should have acted, whereby the defendant was misled to its disadvantage and loss.

It is contended by defendant that plaintiff participated in tbe promotion of said improvement; that he took an active part in inducing the council to order the improvement to be made; that he watched the progress of the work of constructing it, and had full knowledge of all the proceedings until the work had been completed, including the levying of assessments, the appointment of an equalizing board and the amounts finally assessed and charged to the respective properties assessed, including his own, without objection or protest and without making any claim for damages by reason of an excessive assessment or otherwise. Admitting the truth of all these contentions, are they sufficient to operate as an estoppel to maintain this action ? It must be remembered that plaintiff is asking only to have the excess of said assessment over special benefits remitted, and that the matters relied on to constitute an estoppel are not inconsistent with a willingness on his part to pay the full amount of special benefits received, as an assessment towards the cost and expense of making such improvement, and to this extent his acts would operate as an estoppel. But more than this is necessary to constitute an estoppel as to such excess. As to this, knowledge alone is not sufficient. His consent and agreement to pay such excess must be had, either by express agreement or by necessary implication.

Plaintiff had a right to i'ely on the assessments being made according to the mile adopted by the council in. its assessing ordinance, and that in constructing said improvement all the necessary proceedings for that purpose would be had according to law, and such reliance- on his part would not operate as an estoppel to the maintenance of this action. Our conclusion is the plaintiff is not so estopped.

Did he waive the statutory and constitutional limitations to special assessments by signing, with others, and filing with the council of said village, the petition set forth in the answer and finding of facts ?

Said petition was drawn and filed under the terms of Sec. 3836 G-. C., and contained a provision indicating the manner or rule of assessment to be followed in providing for the cost and expense of making such improvement.

There are three methods or rules of making special assessments, viz.: (1) By a percentage of the tax value of the property assessed. (2) In proportion to the benefits which may result from the improvement. (3) By the foot front-of the property bounding and abutting upon the improvement. (Sec. 3812, Q. C.)

The third method of .making such assessments was- designated in the petition filed with the council.

The principleswhich control in eases of this kind are the same as apply in construing contractual obligations. Before a party can be held to pay an excess assessment he must consent and agree to pay it. The petition presented to council was in the nature of the offer or proposition in a contract. To make it binding on the party making the offer there must be an acceptance by the other party. The acceptance must go to all of the terms of the offer. There was no such acceptance here on the part of the village. The plaintiff proposed one form of assessment by which he was willing to abide. The village adopted another form, with a different limitation to the amount that might lawfully be assessed. He can not be held to have assented to such change. It may be said that the village accepted and acted on the petition in so far as it proceeded to construct the improvement prayed for and in making the assessments so far as they were valid. But to this extent there could be no waiver, as the village had the right to do what it did lawfully do without any such petition having been filed. It is only to the proceedings beyond the statutory limitations that a waiver could be held to apply. The fact that council did not accept .the terms of the petition disposes of the claim of waiver in plaintiff’s favor. But if it were not so, this alone would not defeat plaintiff’s right to the relief asked for. The waiver would only be such as would apply to the limitations provided ror in assessments by the foot frontage. This .would be only a waiver of the 33 1-3 per cent, limitation up to and including the full amount of the special benefits received, but it would not waive anything beyond that. There is no question that a party may, by appropriate terms, waive any civil, statutory, or even constitutional, rights. No such waiver appears in this record.

It follow^ that the court of common pleas erred in its conclusions of law as applied to the finding of facts, and that its judgment should be reversed.

Proceeding to render the judgment that the court of common pleas should have rendered, we find that the whole of said assessment above the sum. of $175 is in excess of the special benefits received by plaintiff from the construction of the improvement complained of and is invalid, and that the collection of such excess should be perpetually enjoined.

Judgment reversed and judgment for plaintiff in error.

Shields and Houck, JJ., concur.


source: Caselaw Access Project

author: CHITTENDEN, J. KINKADE, J. CHITTENDEN, J. KINKADE, J.

license: Public Domain

text:
    CONTRACTS — EVIDENCE—RESCISSION.
    [Lucas (6th) Court of Appeals,
    July 10, 1916.]
    Kinkade, Chittenden and Richards, JJ.
    H. W. Buschmeyer v. Advance Machinery Co.
    1. Terms of Written Contract Cannot be Varied by Parol Evidence but Such Evidence is Competent to Show Circumstances of Execution.
    While the terms of a written contract may not be varied or altered by parol evidence, evidence may be introduced to show the surrounding' circumstances at the time of malting the contract, the situation of the parties, its subject-matter, and the purpose of its execution, to enable the court to better determine the intention of the parties and the meaning of the terms they used.
    2. Purchaser of Stock of Corporation on Contract of Employment may Rescind and Pursue Remedy.
    Where stock in a corporation in being and at the time operating its manufactory is purchased only because of an agreement to employ the purchaser, and the corporation is guilty of a breach of the contract to give employment, the purchaser may treat the contract as terminated and rescind it and pursue the remedy to which such rescission entitles him.
    [Syllabus by the court.]
    Error.
    Smith, Beckwith cfe Ohiinger, for plaintiff in error.

      Tracy, Chapman & Welles and E. W. Kelsey, for defendant-in error.
   CHITTENDEN, J.

This action was brought in the common pleas court and was based upon the rescission of a contract involving the purchase of sixty shares of the capital stock of the defendant company. The prayer was for the recovery of the amount paid for such stock. There was included in this action a claim for some unpaid salary and an amount claimed to be due for salary, representing the difference between the amount that had been paid to the plaintiff under the terms of his employment, and what he alleges to be the reasonable value of such services. This latter feature of the action is not of great importance in disposing of the case.

Upon the trial, at the conclusion of the plaintiff’s evidence, the court directed the jury to return a verdict in favor of the defendant which was accordingly done and judgment was entered upon such verdict. The principal question presented upon the error proceedings is whether the court was right in directing a verdict in favor of the defendant. A disposition of the case calls for a construction of the written contract entered into by and between the plaintiff and the defendant. This contract is as follows:

‘‘ Toledo, Ohio, October 28, 1914.
Mr. II. W. Busehmeyer,
Chicago, 111.
Dear Sir:—
You are to start in about November 9th, 1914.
You are to be a director and to be elected treasurer at the earliest possible moment, consistent with our by-laws.
For the first month your salary is to be $100,000. For the balance of the year, not less than $110.00 per month.
Thereafter your salary shall be arranged by the board of directors but shall be increased to $150.00 per month as soon as you can relieve Miss Gill and Mr. Gaughen of their work and handle it with the help of Mr. A. B. Taggart.
You are to buy at par six thousand dollars ($6,000.00) worth of the stock of The Advance Machinery Company, five thousand dollars ($5,000.00) of which is to be turned over to The Advance Machinery Company, the balance, one thousand dollars ($1,000.00) to be -turned over to Miss Gill.
The above stock to be surrendered by P. P. Hunter 2500.00 and J. A. Taggart $3,500.00.
Yours very truly,
The Advance Machinery Co.,
Per J. A. Taggart, Pres.
Accepted.”

It is urged in the first place that certain evidence sought to be introduced is incompetent because of the rule that the terms of a written contract may'not be varied' by parol evidence. This rule is elementary but its application does not preclude the application of another fundamental rule for the construction of contracts, namely, that the court shall view such contract as nearly as possible from the standpoint of the parties to such contract, so that the intention of the parties may be more clearly obtained from the words of the written instrument. The importance and purpose of this rule are well stated by Judge Sanborn in Kauffman v. Raeder, 108 Fed. 171, 175, where he says:

“It will be conducive to brevity and perspicuity to obtain a clear idea of the relations of the parties to the agreement to be considered, their respective covenants therein, and the moving consideration which induced them to make their stipulations, before entering upon the dismission of this issue. This conception must be secured by the light of the fundamental rule that the situation of the parties when the contract was made, its subject-matter, and the purpose of its execution are material to determine the intention of the parties and the meaning of the terms they used, and that when these are ascertained they must prevail over the dry words of the stipulations. ’ ’

Or, as is said by the Supreme Court in Merchants Nat. Bank v. Cole, 83 Ohio St. 50 [93 N. E. 465; 22 Ann. Cas. 779]:

“* * * The surrounding circumstances may be proven not to contradict or vary the terms of the writing but to enable the court to put itself in the place of the parties the better to understand the terms employed in the writing and to arrive at the mutual intention of the parties.”

Cases might be cited in support of this proposition from all the states in the Union, and the federal courts. We will add only the following citations: '

Carnig v. Carr. 167 Mass. 544, 547 [46 N. E. 117; 35 L. R. A. 512; 57 Am. St. Rep. 488]; Rock Island Ry. v. Rio Grande R. F. 143 U. S. 596, 609 [36 L. Ed. 277; 12 S. Ct. 479]; Cambria Iron Co. v. Keynes, 56 Ohio St. 501, 513 [47 N. E. 548].

Evidence was sought to be introduced tending to show the relations of tbe parties just prior to and at the time of entering into the above contract, and conversations had between the president of the company and the plaintiff, for the purpose of enabling the court to ascertain the intentions of the párties in 'the execution of this instrument. Some of this evidence was excluded and we think its exclusion was error, but such errors were very largely, if not entirely, cured by the fact that the court afterwards admitted substantially all the evidence that was sought to be introduced upon the subject. The evidence shows substantially the following facts:

The plaintiff at the time of entering into this contract was about fifty years of age. He was born in the city of Chicago and had lived there all his life up until about November, 1914, when he moved with his family to Toledo. He was a bookkeeper by profession and had during all his life occupied office positions. For about fourteen years, namely from 1899 to 1913, he had been bookkeeper for a la^ge manufacturing company. During the last six or seven years of that time he had also held the position of secretary of that company, and for the last eight years liad been head bookkeeper. He had been out of employment approximately a year when he observed an advertisement of the defendant company in a Chicago paper, which he answered. As a result thereof he came to the city of Toledo and had a conference with the president of the defendant company, which finally resulted in the execution of the contract above quoted. Pursuant to this contract he came to Toledo on about November 8,1914, and he was on the following day elected acting treasurer for the company. The minutes of the meeting of the directors of November 9 contain the following paragraph:

“It was moved by James Taggart and seconded by E. N. Grill that Mr. Buschmeyer be appointed acting treasurer to hold such office for the balance of the year at the end of which he is to be elected treasurer of the company in accordance with the contract under which he invested in the company. ”

Mr. Buschmeyer entered upon the performance of his duties and sixty shares of the capital stock of the company were issued to him in accordance with the terms of the contract for which he paid six thousand dollars. On January' 19, 1915, at the annual meeting of the company, Mr. Buschmeyer was “elected treasurer for the ensuing year,” as shown by the minutes of that meeting. He continued in the performance of his duties and, as he claims, assumed the duties oi Miss Gill and Mr. Gaughen as contemplated by the contract.

At a meeting of the board of directors on June 28, 1915, one J. S. Clark was employed to perform all the duties that had theretofore devolved upon the plaintiff, and it was ordered that the plaintiff’s salary should cease on and after June 30. The plaintiff refused to concur in this action of the board of directors. At or about the same time the president of the company informed the plaintiff that his connection with the company would cease on and after July 1, 1915. Plaintiff continued Ins' services until the evening of June 30, 1915, and thereafter presented himself at the office of the company and offered to continue the performance of his work but he was not permitted to do so. On July 13, 1915, the plaintiff wrote the defendant advising them in effect that he considered their action a repudiation of his contract and he returned, therefore, to the defendant with his letter the certificate of stock representing the sixty shares that had been issued to him, together with his resignation as director and treasurer of the company, and demanded of the defendant that they repay to him six thousand dollars which he liad paid for the stock. The defendant at a special-meeting of its board of directors on July 20, accepted tire resignation of the plaintiff but declined to accept the return of the stock, and returned the certificates to the plaintiff-’ with a refusal to repay the six thousand dollars or any part thereof. Subsequent proceedings with reference to the stock are not material. Thereafter in August this suit was begun.

Reverting for a moment to the conversations between the plaintiff and the president of the defendant prior to the execution of the contract, it is found, that at those conferences the plaintiff related to the president of the company his previous business experience and advised him that he was at that time out of employment': that he had accumulated some capital from the savings from his salary; and that he was desirous of investing in some company, but only upon condition that ho would be given empMvment that would enable him to make a livelihood, and that- his employment should be in such a position as would, permit him to watch his investment and have an opportunity to make a success of the business. The language of the plaintiff as shown in the bill of exceptions is as follows:

“I said that I would not make any investment in the company unless it was understood that I would permanently be connected with the company and in such a position where I could watch my investment and have an opportunity to make a succes of the business. ’ ’

This condition seemed to be entirely satisfactory to the president of the company. The evidence shows that at this conversation the plaintiff was informed that the stock had never paid a dividend. It • will be observed that • the written contract is -silent as to the length of time the employment was to continue. It only states when, the employment was to begin, namely, on or about November 9, 1914.

- We think it entirely clear from the facts as above related that the plaintiff was not a capitalist who was seeking a profitable investment in the capital stock of a corporation, but that he' was a professional office man who had reached an age where it is common knowledge that it is not easy to obtain employment in competition with equally capable younger men; and that he was willing to purchase with his savings stock in a company which would insure him employment that would enable him to earn a reasonable salary, and where at the same time he might watch the investment of his savings. We conclude, therefore, that the clause of the contract providing for his employment at the salaries named in the contract was the most important and vital provision in the contract, so far as fhe plaintiff was concerned, and that the purchase of the stock would not have been made except for such agreement for employment ; that the purchase of the stock was so dependent upon the agreement to employ that they become dependent provisions of an entire contract; and that a breach of the agreement for employment would be the breach of such an important member of the contract as to go to the root of the contract and amount to a discharge of the same if so treated by the other party thereto. We think that where there is such a breach of a . material and vital condition of a contract the other party thereto may either treat the contract as terminated and rescind it and pursue the remedy that such rescission entitles him to, or he may sue for damages for a breach of the contract. Page, Contracts, Secs. 1569, 1596 to 1599; Wellston Coal Co. v. Paper Co. 57 Ohio St. 182 [48 N. E. 888],

Acting upon this right of rescission the plaintiff asks recovery for the amount paid for the capital stock, after having .made tender of the certificates. Tt remains to be determined whether the evidence tends to show such a breach of the contract on the part of the defendant as justifies a rescission on the part of the plaintiff. The defendant by its answer alleges that the plaintiff was incompetent and incapable of performing the duties that he undertook to perform. The record, however, is silent upon the claims of the defendant in this respect for the reason that it never became necessary, in view of the action of the court, for the defendant to introduce any evidence. The evidence on behalf of the plaintiff tends to show that he wras capable and was performing all the duties that had devolved upon him as treasurer and director of the defendant company, and that his discharge was without any fault or failure upon his part to properly perform such duties.

It is contended that the term of employment being indefinite in character the defendant might rightfully discharge the plaintiff at any time. As has been stated, the written contract is silent as to the duration of the employment, but on the trial the plaintiff offered competent evidence tending to show that it was contemplated by both parties to the contract that the employment ivas to be permanent in character. It does not become necessary in disposing of the case to determine the exact meaning of that term. It at least must mean that the employment was to be for a reasonable length of time. The plaintiff had invested a large amount of money in the defendant company for the purpose of securing such employment. He removed with his family from the city where they had always theretofore lived, to a strange city, and it must be held that the parties contemplated more than a mere temporary employment. He was to be elected a director and treasurer of the company, the latter office carrying with it the duty of taking charge of all the books of the company. The by-laws of the company provided that such office was to be for the term of a year. The board of directors in electing the plaintiff acting treasurer on November 9, 1914, set forth that he was, at the annual meeting, to be elected treasurer “in accordance with the contract under which be invested in the company,” and on January 19, 391.5, he was elected treasurer “for the ensuing year.” These facts show an interpretation put upon the contract by the defendant to the effect that a reasonable time would not be less than one year from January 19, 1915, the date of the annual meeting, and we hold that he could not be discharged except for cause, before January 19, 1916. The contract, so far as the plaintiff was concerned, had been fully performed on his part up to the time of his discharge, as shown by the bill of exceptions. He had paid in the money required of him to be paid and had proceeded in the discharge of his duties. When a contract has been executed on one side the law will not permit the injusfiee of the other party retaining the benefit without fully performing the obligations upon his part to be performed. We find no such indefiniteness in the contract as presents an insuperable difficulty in adjusting the rights of the parties. Silver v. Graves, 210 Mass. 26, 39 [95 N. E. 948]; Wellston Coal Co. v. Paper Co. supra.

It is claimed by defendant in error that the decision of the common pleas court is in accord with the cáse of Stunt v. Tube & Steel Co. 12 Circ. Dec. 170 (22 R. 120); affirmed, no op., Stunt v. Tube & Steel Co. 67 Ohio St. 555. What the facts before the court in that case were is not made entirely clear by the opinion of the court, but it seems quite certain from the statement of the court, and their discussion, and from the cases cited .as the authority upon which they rested the decision in the ease, that tbe capital stock involved in that action was what might be denominated initiatory or organization stock. The rule as to such stock is, without exception, we think, that it is against public policy and fair dealing among the subscribers thereto to permit any condition to be attached to the subscription. However, the court found under the facts in that case that the condition of employment was a separate and distinct stipulation in the contract of subscription, and that the subscription was not dependent thereon, and the breach of such a stipulation would give rise only to an action for damages. We find under the facts in this case that the transaction between the plaintiff and the defendant was not a subscription to organization stock containing a stipulation, but that it was a conditional sale of stock by a corporation in being and at the time owning and operating its manufacturing plant, and that upon a breach of the condition which we find to be material and vital, the plaintiff might rescind and maintain an action to recover the price paid.

The court excluded evidence as to the expense incurred by the plaintiff in removing from Chicago to Toledo. We think that this was purely an item of damage arising out of the breach of the contract, and this action is distinctly asserted by the plaintiff not to be founded upon damage but upon rescission and the right to recover the amount paid for the stock under the contract. We think the court was not in error in excluding this evidence, nor in excluding evidence as to the difference between the amount paid for salary in accordance with the action of the board of directors and the amount which plaintiff asserts such services to be worth.

We find that the court was in error in directing a verdict :n favor of the defendant, for the reasons hereinbefore stated, and the judgment will be reversed and the cause remanded for new trial.

Richards, J., concurs.

KINKADE, J.

I concur in the judgment of reversal. The written contract between the parties being entirely silent as to the duration of the employment, the law will write into the contract the omitted member, to-wit, that the employment was for a reasonable time, and what constitutes a reasonable time is a question of law for the court when the facts are admitted or when they are found by the jury from the evidence. It is competent for the parties to a contract of employment which is entirely silent as to the duration of the employment to establish by evidence the facts and circumstances incident to the making of the contract, with the omitted member as stated,- in order that the court may determine from the contract and the facts associated with the making thereof, what constitutes a reasonable-time.

On application for rehearing, July 25, 1916.

CHITTENDEN, J.

The application for a rehearing assumes that the court imported into the written contract between the parties a new term derived from the parol evidence. One phrase in the main opinion may have been so worded as to give that impression, and that phrase has been corrected so as to avoid any such misconstruction of its meaning.

That the terms of a written contract can not be varied or contradicted by parol evidence is so elementary that no one would think of questioning it. "When a contract of employment does not specify the time it is to remain in force evidence can not be introduced to show that it is to be continued for a specific time, and, ordinarily, in a case of a simple contract of employment, it would be terminable at will. The contract between the parties to this action, however, is more than a simple contract of employment. Inseparably coupled with it was a purchase by the plaintiff of six thousand dollars of the capital stock of the defendant company. The facts surrounding the making of this contract were sufficiently reviewed in the opinion rendered on the decision of the case. That a contract shall be construed in the light of such surrounding circumstances is fully sustained by the authorities some of which are cited in the opinion. ¥e call attention, in addition to those authorities, to the rale as stated in 9 Ency. of Evidence, 374, and also to the statement of the law in Par. C as to what facts are excluded in the application of the rule. Also Hildebrand v. Fogle, 20 Ohio 147. We quote from the opinion by Judge Ranney on page 157 as follows :

“To enable the court and jury to be as wise as the parties, and so to arrive at and give application to the words they have used, and thus carry out their intentions, the law permits them to hear a full description, from evidence, of the subject matter of the contract, and of the circumstances that surrounded the parties at the time it was made; and to learn what were the motives and inducements that led to the contract, and the object to be attained by it.”

Construing the contract in the light of the circumstances ■attending its execution, as shown by the evidence, this court did not hold that the employment was for any specific time. It was not even held to be for “permanent” employment, whatever that may mean. It was only held that the character of the employment was something more than a mere hiring at the will of the employer. To hold otherwise would be to place the plaintiff wholly at the mercy or caprice of the defendant. The court must not in the application of a rule of evidence lose sight of fundamental rules of construction of contracts, and close its eyes to the facts and circumstances surrounding its execution. If the facts are as disclosed by the evidence for the plaintiff, it would be most uncónscionable to permit the defendant to obtain six thousand dollars from the plaintiff, under a pretense of giving him employment, and then, in less than a reasonable time, discharge him without cause. Surely the law is not so helpless as to be unable to afford relief against such a wrong. We have found from the facts in this cáse that the legal effect of this instrument is that the plaintiff was employed. for at least a reasonable time, and that by its conduct the defendant has construed such time to be not less than one year from January 19, 1915. How much longer than that a court might find a reasonable time might extend is not necessary to be determined here in view of what occurred before the expiration of that time. The law upon this proposition is well stated in 17 Cye. 570, as follows:

“The legal effect of a written instrument, even though not apparent from the terms of the instrument itself, but left to be implied by law, can no more be contradicted, explained, or controlled by parol or extrinsic evidence than if such effect had been expressed. Thus where no time of performance is specified in a contract the legal effect is that it is to be performed within a reasonable time and parol evidence is not admissible to show an agreement that it shall be .performed at a particular time.”

The portion of this section in Cye. cited by counsel for plaintiff in error in -their brief is not in conflict with the decision of this court in this case as is indicated by what has been said above.

See also, Douglas v. Campbell, 24 O. C. C. 241 (2 N. S. 62).

This case having been given a most careful examination by the court we are unable to find at this time any reason why the application for a rehearing should be granted, and such appli- . cation will therefore be denied.

Richards, J., concurs.

KINKADE, J.

What I said in a concurring opinion in the main ease had reference, of course, to cases like the one under consideration and had no application to a simple contract of service carrying none of the features embraced in the contract in the case at bar, even though such contract of service might be entirety silent as to the duration thereof. The following paragraphs from 2 Parsons, Contracts (7 ed.), 666 and 794, need no further comment.

“Where anything is to be done, as goods to be delivered, or the like, and no time is specified in the contract, it is then a presumption of law that the parties intended and agreed that the thing should be done in a reasonable time. But what is a reasonable time is a question of law for the court. They will consider all the facts and circumstances of the case in determining this, and if any facts bearing upon this point are in question, it will be the province of the jury to settle those facts, although the influence of the facts when they are ascertained, upon the question of reasonableness, other than that of time, are questions of facts for the jury.”
“If the contract specifies no time, the law implies that it shall be performed within a reasonable time; and will not permit this implication to be rebutted by extrinsic testimony going to fix a definite term, because this varies the contract. What is a reasonable time is a question of law.”


author: HOUCK, J.

text:
    MUNICIPAL CORPORATIONS.
    [Licking (5th) Court of Appeals,
    October Term, 1916.]
    Shields, Powell and Houck, JJ.

      Newark (City) v. James Richter.
    Emergency Ordinances Failing to Receive Two-Thirds Vote Invalid as General Ordinances Even After Lapse of Statutory Lapse of Time.
    Au ordinance introduced as an emergency ordinance, but failing to receive the votes of two-thirds of the members of council, does not thereafter become a valid general ordinance upon expiration of thirty days after its passage, but is and remains without force or effect.
    [Syllabus by the court.]

      Ralph Norpell. City Solicitor, and Fiizgibbon, Montgomery & Black, for plaintiffs in error.

      Phil. B. Smythe, 8. L. James and L. C. Russell, for defendant in error.

       Motion to certify record overruled.

   HOUCK, J.

The parties here stand in the reverse order from where they stood in the court below. The petition of the plaintiff below is as follows:

“On the 28th day of March, 1916, and for a long time prior thereto, the plaintiff was a duly appointed, qualified and acting policeman of the city of Newark, Ohio.
“On the 28th day of February, 1916, certain members of the council of said city and the above named defendants unlawfully conspired together to unlawfully discharge certain members of the police force of said city and to defeat the provisions of the statutes of the state of Ohio relating to civil service, and unlawfully conspiring to defeat the operation of the statutes of Ohio relating to the referendum of ordinances, caused to be introduced for passage in the council of said city two certain ordinances entitled, respectively, Ordinance No. 2570, fixing the number and salary of the police department, and Ordinance No. 2569, repealing Ordinances Nos. 2135, 2196 and 2291, and portions of Ordinances Nos. 2171 and 2031. Said ordinances are hereto attached and made a part of this petition.
“Said ordinances were introduced as and purported to be emergency ordinances, but the plaintiff: says that said ordinances did not receive the necessary number of votes to be legally passed, yet notwithstanding the same, defendants caused said ordinances to be published and thirty days after the passage thereof the above named defendants attempted to put said ordinances into effect.
“Plaintiff says that, relying upon the authority of said pretended ordinances, and without any charges of misconduct being filed against him, and contrary to the provisions of the law relating to the referendum of ordinances, said above named defendants have attempted to discharge plaintiff from his said position-as policeman, and from that time hitherto have refused 1o permit him to perform the duties of his said office and have refused to pay him the salary due him as such policeman.
“Plaintiff says that said pretended ordinances are wholly unlawful and invalid and not effective in this, that although the same purport to be emergency ordinances the same did not receive a sufficient number of votes to be passed as such. That the same are not valid as general ordinances or ordinances other than emergency ordinances for the reason that under the law of Ohio all general ordinances are subject to referendum, but when declared to be emergency ordinances they are not subject to referendum.
“That the plaintiff has no adequate remedy at law.
“Wherefore, the plaintiff prays that said two pretended ordinances be declared unlawful, invalid and of no effect. That his pretended discharge as such police officer be set aside and held for naught and that defendants be required to reinstate him as such officer and be enjoined and restrained from interfering with, him in the proper performance of his duties as such officer, and he prays for all proper relief. ’ ’ ,

The defendants filed the following answer :

“Now come the defendants and for their answer herein say that they admit that plaintiff was on the 28th day of March, 1916, duly appointed, qualified and acting police officer of the city of Newark, Ohio. That said defendants deny each and ••very other allegation contained in said petition.
“Further answering said defendants say that on the 28th day of February,. 1916, the council of said city of Newark, state of Ohio, duly passed an ordinance by the terms of which the number of authorized patrolmen of said city was reduced from sixteen to eleven; that said ordinance was in full force and effect March 30th, 1916, and still is in full force and effect; that when said ordinance went into effect there were fourteen patrolmen in the service of said city.
“On the 20th day of March, 1916, in order to comply with said ordinances the sendees of three patrolmen, to wit, Martin L. Shively, the plaintiff, James Richter, and John Jones were dispensed with in accordance with the civil service law of the state of Ohio, said three men having at that time been the most recently appointed policemen on the police force of said city.
“Wherefore, said defendants pray that said petition be dismissed at costs of plaintiff and for all proper relief, to which said answering defendants are entitled to in law and equity.”

Upon these pleadings and the evidence the cause was submitted to the trial judge, who found for the plaintiff below, the defendant in error. Error is prosecuted to this court, seeking a reversal of the judgment below, and while a number of alleged errors are complained of, as set forth in the petition in error, yet counsel for plaintiff in error in oral argument urged but one ground of error, namely, that the judgment is .against the evidence and is contrary to law.

From an examination of the record in this case we are of the opinion that only one question is presented for decision by this court, which will determine the proper solution of the questions raised by the issues made in the pleadings and the evidence offered in the cause, namely:’ Was the ordinance in question properly and legally passed by the city council of Newark, Ohio 1

Section 4 of said ordinance provided as follows:

“That this ordinance is hereby declared to be an.emergency ordinance for the reason that the amount of money collectible for use in the year 1916 for the department of public safety is insufficient to pay the salaries and expenses of said department on its present basis. ”

It is admitted by the parties to this controversy and as a matter of fact the testimony also shows that the city council of the city of Newark consisted of nine members and that the ordinance in question on final passage received five votes for its passage and four against it.

The evidence also shows as contained in journal No. 16 of the minutes kept by the city clerk of the city of Newark, as to proceedings had when said ordinance ivas on its final passage as follows:

“By Alexander, Curry, Adams.
“Fixing the number and salaries of the members of the police department.
“On motion of Alexander, seconded by Curry, that the rules be suspended and the ordinance passed on second and third reading and final passage'was lost by the following vote: Yeas: Adams, Alexander, Curry, Keyes, Knauber, five; nays: Seward, Shirer, Stasel, three.”

The ordinance under consideration, was an emergency ordinance and was introduced as such, and in order that it be legally X>assed it was necessary for it to receive upon a yea and nay vote two-thirds of all members elected to the city council, w’ cli is not the case here, there being nine members of the city council, and the ordinance on final passage received five votes for and four against it and therefore the minutes of the city clerk properly show that it was lost.

The minutes further show at the regular meeting on February 21, 1916:

“Ordinance No. 2570.
“By Alexander. Curry, Adams.
“Fixing the number and salaries of the members of the yjolice department.
“Note — Vote was taken by the council that is on page 227.”

The minutes further show that at a special meeting held on February 28, 1916, regularly called, all members notified under sworn statement for the purpose of transacting general business. Ordinance on third reading:

“Ordinance No. 2570.
“By Alexander, Adams, Curry.
“Fixing the number and salaries of the members of the police department.
, “ On motion of Adams, seconded by Curry, the ordinance was passed by the following vote: yeas, Adams, Alexander, Gurry, Keyes, Knauber, five; nays, Beadle, Seward, Shirer, Stasel, four.
“.Passed by a majority vote, five to four.”

But it is contended by counsel for plaintiffs in error that it could and did become a valid ordinance as a general ordinance after thirty days from the time it was filed with the mayor of said city, notwithstanding the fact that as an emergency ordinance it only received five votes on final passage.

We do not think this claim is sound because the ordinance was introduced as and for an emergency ordinance and it does not seem to us proper or reasonable to claim that after it failed to pass, under favor of the statute as an emergency ordinance, that it then could take life and become effective under the statute as a general ordinance. To ns this appears to be a clear evasion of the plain provisions of Secs. 4227-2 and 4227-3 G. C.

It is strongly urged by counsel for plaintiff in error that the decision in the case of Miami County v. Dayton, 92 Ohio St. 215 [110 N. E. 726], is decisive of the ease at bar.

We can not agree with learned counsel in their claim in (his respect. We have examined the opinion in the ease cited by counsel and hold that the doctrine laid down in that case is not applicable to the case at bar for tbe reason that the mode and manner necessary for the enactment of a measure into a law by the legislature of Ohio is entirely and wholly different from the proceedings necessary to pass an ordinance by a city council.

In view of what we have already said and upon an examination of the entire record in this case we find no error in the record prejudicial to the rights of the plaintiffs in error, and therefore hold that the judgment of the common pleas court should be affirmed.

Judgment affirmed.

Shields and Powell, JJ., concur.


author: RICHARDS, J.

text:
    LANDLORD AND TENANT — LIMITATIONS.
    [Lucas (6th) Court of Appeals,
    June 19, 1916.]
    Richards, Kinkade and Chittenden, JJ.
    Nasby Building Co. v. Walbridge Building Co.
    1. Lessor of Lease Forfeited for Nonpayment of Rent Waives No Right to Enforce Forfeiture by Foreclosure Proceedings or Receivership.
    Where a lease has been forfeited for nonpayment of rent, the • lessor does not waive his right to enforce the forfeiture by filing a cross-petition setting up his claims under a mortgage, nor by demanding judgment for accrued rent, nor by procuring the appointment of a receiver in the foreclosure action who collects the rents and holds them subject to the order of the court.
    2. Limitations not Applicable to Defenses not involving Set-off or Counterclaim.
    Statutes of limitation have no application to defenses not involving set-off or counterclaim.
    [Syllabus by the court.]
    Error.

      Howell, Roberts & Duncan and Geer $ Lame, for plaintiff in error.

      Tracy, Ghapmam & Welles, for defendant in error.
   RICHARDS, J.

In the court of common pleas the Equitable Life Assurance Society commenced an action for the foreclosure of a mortgage of one hundred and thirty-seven thousand dollars executed by the Walbridge Building Co. Among the defendants was a corporation known as the Nasby Building Co. which latter company had become the lessee of the premises involved, known as the Nasby Building in the city of Toledo, for a period of ninety-nine years from the first day of January, 1909. The Walbridge Building Co. filed a cross-petition setting up, among other things, that the lessee, the Nasby Building Co., had obligated itself to make the payments provided for in the mortgage already mentioned, and in addition had agreed to pay to the Walbridge Building Co. the sum of $13,000 by an unsecured obligation, and had agreed to pay also in installments certain rent for the premises. The Walbridge Building Co. further averred that the Nasby Building Co. was in default on making sundry of these payments upon the mortgage and on the rent, and was also in default in failing to make the payment of the $13,000 indebtedness. A receiver was appointed in the court of common pleas who took charge of and has been collecting the rent on-the premises. Thereafter the Walbridge Building Co. filed an amended and supplemental cross-petition making many of the same averments which were contained in its original cross-petition, and certain other averments in addition thereto showing that it was entitled to the possession of the premises in controversy, and praying that the lease and all the rights and interest of the Nasby Building Co. under the same be declared forfeited and possession awarded to the cross-petitioner. To this last pleading the Nasby Building Go. filed an answer admitting substantially all of the material averments contained in the amended and supplemental cross-petition, and denying other averments, and concluding its pleading by allegations of fraudulent representations on the part of the Walbridge Building Co. which induced the Nasby Building Co. to enter into the lease made in December, 1908. The Nasby Building Co. avers that by reason of these fraudulent representations it has been damaged in the sum of one hundred and twenty-five thousand dollars for which amount it asks a finding and judgment against the Walbridge Building Co.,

Numerous motions and demurrers were made and disposed-of in the court of common pleas and thereupon the Walbridge Building Co. moved for judgment in its favor against the Nasby Building Co. upon the pleadings, which motion was, on consideration, granted by the trial court and a judgment rendered excluding the Nasby Building Company from the possession of the real estate in controversy and awarding the same to the Walbridge Building Co. “free and clear of any and all claims of-said, the Nasby Building Co., on account of . any of the matters and things set forth in the pleadings heretofore filed herein.” To this judgment the Nasby Building. Company prosecutes error.

It is insisted that the judgment of the trial court is wrong for the reason that the Walbridge Building Co. having in its original cross-petition elected to demand payment of the rent which had accrued, and having procured the appointment of a receiver who had taken possession of the property, had thereby waived the right to insist on a forfeiture of the lease and to recover possession of the premises by reason of default in making the payments stipulated therein. We can not accede to this contention. This branch of the case is within the principles announced by Judge Hoadly in the ease of Campbell v. McElevey, 2 Dis. 574 (13 Dec. Re. 351), and does not fall within the terms of Owen v. Hickman, 2 Dis. 471 (13 Dec. Re. 289). The receiver is simply collecting the rent and holding the same subject to the order of the court.

Counsel further insist that the cross-petitioner is not entitled to recover the premises because of failure to make demand and give proper notice to justify a forfeiture of the lease. It is a sufficient answer to this contention that the lease itself waives these requirements, and those provisions we hold to be valid.

The most important question in this case is the one raised as to the application of the statute of limitations to the contention made by the Nasby Building Co. that the lease was induced by means of fraudulent representations of the Walbridge Building Co. Those representations, whatever they were, appear to have been made in December, 1908. The petition for the foreclosure of the mortgage in this ease was filed in April of 1915, and the amended and supplemental cross-petition of the Walbridge Building Co. was filed on August 21, 1915. The Walbridge Building Co. by reply set up the statute of limitations of four years, and insists that any claim made on account of fraudulent representations is barred by that statute. The court of common pleas sustained this contention and for that reason entered the judgment already stated. It will be noted from the pleading filed by the Nasby Building Co. that it does not ask for the cancellation or rescission of the lease by reason of the claimed fraudulent representations, but asks only for damages resulting to it by reason of such claimed fraud. The principle of law that defenses are held not to be barred by the statute of limitations is one which is well established by the authorities and is founded on reason. The rule is succinctly stated in 17 R. C. L., 745 and in 25 Cyc. 1063, and is applied in Hart v. Church, 126 Calif. 471 [58 Pac. 910; 59 Pac. 296; 77 Am. St. Rep. 206]; Butler v. Carpenter, 163 Mo. 597 [63 S. W. 823]; Williamson v. Brown, 195 Mo. 313 [93 S. W. 791] and Pinkham v. Pinkham, 60 Neb. 600, 611 [83 N. W. 837]. Manifestly the purpose of the statute of limitations is, as has been well said, to bar actions and not to suppress or deny matters of defense whether equitable or legal.

The lease provides not only for the payment of rent, but it contains appropriate provisions for the payment of the mortgage indebtedness held by the Equitable Life Assurance Society, and the allegations of the pleadings show that the defendant has violated its obligation in that regard as well as its obligation to pay the rent to the Walbridge Building Co. and to pay to the latter company the unsecured indebtedness of $13,000. In view of the fact that the Nasby Building Co. does not claim a rescission or cancellation of the lease on account of the alleged fraud, but seeks only to recoup damages by reason thereof, if the judgment in the court of common pleas had proceeded only to the extent of adjudging that the Walbridge Building Co. was entitled to the possession of the premises, it would be free from prejudicial error; but it goes much farther than simply to adjudge the possession of the premises to that company, and decides that that company shall hold the premises free and clear of all claims of the Nasby Building Co. on account of the matters averred in the pleadings. We have already seen that as to some of these claims, the claim for damages set up by the Nasby Building Co. is purely defensive and is not barred by the statute of limitations.

The judgment will be reversed and the cause remanded for further proceedings according to law.

Chittenden and Kinkade, JJ., concur.


author: JONES, P. J.

text:
    ERROR — MUNICIPAL CORPORATIONS — RECEIVERS.
    [Hamilton (1st) Court of Appeals,
    June 18, 1917.]
    Jones, Gorman and Hamilton, JJ.
    Edward G. Schultz, Recvr. v. Cincinnati (City).
    1. Receiver May Seek Review of Order Allowing. Claim Made by Appointing Court.
    ■ A receiver may appeal or prosecute error to the order of the court appointing him in allowing a claim against the estate which he is administering.
    2. Water Rents Due Municipality not Made Preferred Claim Against Personalty.
    In the aosence of any ordinance, by law or regulation thereunder, Secs. 3957 and 3958 G. C. create no lien on property for water rent in favor of a municipality. A city’s claim for water rent which accrued prior to the appointment of a receiver is not a preferred claim to be paid out of proceeds of personal property which was sold under the order of court by such receiver.
    Error.

      Burch, Peters' c& Connolly, for plaintiff in error.

      Chas. A. Groom, City Sol.; Saul ZielonJca and Oha/rles Tatgenhorst, Jr., Asst. City Sols., for defendant in error.
   JONES, P. J.

The question to be determined in this case is whether the city of Cincinnati is entitled to be paid, as a preferred claim, a claim for water rent, which accrued prior to the appointment of a receiver, out of the proceeds of personal property which was sold under the order of court and reduced to cash by the receiver. The claim of the city is that it has a first, valid and subsisting Hen for the full amount of accrued water rent upon the- money in the possession of the receiver. This claim was alio wed-in the trial court and the receiver ordered to pay the claim in full. To this order error was prosecuted in this court.

It is contended at the outset that the receiver has no power to except to the order of the court which appointed him, or to file proceedings to review that court’s order in regard to the payment of this claim. In Alderson, Receivers, Sec. 588, p. 797, the law is thus stated:

“Every claim presented against a fund in the hands of a receiver, if contested before the court, becomes in effect a suit against the receiver, which is ended by a final judgment allowing or rejecting the claim, and any party to the contest dissattisfied with the result may have the proceedings revised on appeal. The receiver as a party defendant to an action has the same right to appeal from a judgment of the court affecting the interests of the estate represented by him that the party or corporation to whom the estate originally belonged would have had if the suit had been brought by them. ’ ’

If this claim had been prosecuted as an independent suit by the city against the receiver with leave of court, instead of by a motion in the nature of an intervening petition in the case where the receiver had been appointed, there would be no question as to the power of the receiver to secure a review of the judgment of the court. Smith v. Folsom, 80 Ohio St. 218, 219 [88 N. E. 546]; Webb v. Staesel, 80 Ohio St. 122 [17 Dec. 320]. The power of a. receiver to secure such an appeal was sustained in Felton v. Ackerman, 9 U. S. C. C. A. 457 [61 Fed. 225], In the opinion of the court by Taft, J., it was said (p. 458) :

“While it is true that the receiver is an arm of the court in the administration of the property, yet where persons intervene to obtain relief against .him because they can not obtain full relief in any other forum, the issue raised by his answer to the petition makes the proceeding an adversary, one, in which the receiver represents the interests of the owners of .the- property, of which he is temporarily in charge. If, as such representative, he feels aggrieved by an order of the court made in an adversary proceeding of this character, it is difficult .to see why -he should not -be permitted to have the order of the court reviewed by the appellate tribunal to whom any other litigant may resort. Certainly, the owners of property, if aggrieved by the order against the receiver, might appeal, and there would seem to -be no justice in preventing - the temporary custodian of their property from doing so. ”

See also Bosworth v. Terminal, R. A. 26 26 U. S. C. C. A. 279 [80 Fed. 969], The rule is thus laid down in High, Receivers (4th ed. ), Sec. 264a:

“As to the right of a receiver to appeal from orders and judgments entered in the course of the receivership proceedings, it is held that he has the same right of appeal from an adverse judgment for the recovery of funds pertaining to his receivership as the party over whom he was appointed would have had. ’ ’

See also Beach, Receivers, pp. 295 to 296.

Under these authorities we hold that the receiver in this' case was entitled to prosecute this error proceeding for the review of the order complained of.

The city claims that water-rents due it are a preferred claim under Sec. 3958 G. C., which is as follows:

“For the purpose of paying the expenses of conducting and managing the water works, such director may assess and collect from time to time a water rent of sufficient amount in such manner as he deems most equitable upon all tenements and premises supplied with water. When more than one tenant or water taker is supplied with one hydrant or off the same pipe, and when the assessments therefor are not paid when due, the direct- or shall look directly to the owner of the property for so much of the water rent thereof as remains unpaid, which shall be collected in the same manner as other city taxes. ’ ’

There is no question but that a municipality in Ohio can construct water works and supply water to its inhabitants, and the director of public service of a city is authorized to manage such water works and to make sueh by-laws and regulations as he may deem necessary for such purpose, which regulations, under See. 3957 G. C., shall have the validity of ordinances. It is not, however, contended that any regulation of the city of Cincinnati has been made or attempted by virtue of which this claim for water rent would become a lien or first charge upon the assets of the Warner Equipment Company in the hands of its receiver, nor is any specific statute, ordinance or regulation pointed out by the city under which this claim would be deemed a preferred claim as against the receiver. It is argued that water rents are in the nature of taxes and that as general taxes become a lien against real estate, in some manner this claim should be a lien against this fund. In Alter v. Cincinnati, 56 Ohio St. 47 [46 N. E. 69; 35 L. R. A. 737], the Supreme Court in its opinion by Burket, J., at page 67, said:

"“Water rents are not, strictly speaking, taxes, and certainly not taxes on property to be regulated under article twelve of the Constitution.”

Even taxes are not a lien upon personal property, and become such only after judgment.

There is no question but that under proper regulations the city could protect itself in the collection of water rents by providing that the water be turned off and not turned on again until all back rent had been paid. Mansfield v. Manufacturing Co. 82 Ohio St. 216 [92 N. E. 233; 31 L. R. A. (N. S.) 301; 19 Ann. Cas. 842]. No doubt other methods might be devised equally efficacious to secure back water rents in eases of the appointment of a receiver for the management of manufacturing property, but no provision by law has been pointed out whereby this particular claim can be held a preference against the fund in the hands of this receiver.

The judgment below must therefore be reversed.

Gorman and Hamilton, JJ., concur.


text:
    MUNICIPAL CORPORATIONS — SIDEWALKS.
    [Lucas (6th) Court of Appeals,
    March 27, 1916.]
    Richards, Kinkade and Chittenden, JJ.
    Frances Ritter v. Toledo (City).
    Icy Sidewalk Inclining Ten Inches in Seven Feet not Cause of Action for Personal Injuries.
    A.petition to recover damages for personal injuries caused by slipping on an icy sidewalk, where the only complaint made against the walk is • that it has an incline of ten inches in seven feet, and was covered with ice produced by natural causes, does not state a cause of action.
    [Syllabus by the court.]

      Graves & Stahl, for plaintiff in error.

      Harry S. Commager, Dir. of Law, and Charles T. Lawton, for defendant in error.
   RICHARDS, J.

The action was commenced in the common pleas court to recover damages for a personal injury resulting from falling on an icy sidewalk. The petition was met with “a demurrer, which was sustained in the trial court, and, the plaintiff not desiring to plead further, final judgment was rendered dismissing her petition, and to this action of the court she prosecutes error.

The allegations in the petition as to the precise location and situation of this walk are somewhat complicated, but, for the purpose of determining the point involved, it is only necessary to say that the petition discloses that the walk was a slanting or inclined walk, extending a distance of seven feet from the outer line of the sidewalk to the curb line, and that in said seven feet the extent of the incline is ten inches. The petition alleges that five or six days before the injury this sidewalk became covered with ice and was very slippery, and that the plaintiff had no knowledge of its dangerous condition, but that its condition was known to the defendant or would have been known to it in the exercise of ordinary care.

The simple question for determination is whether these allegations show such a condition as casts a liability on the city. Counsel for plaintiff insist that the petition is sufficient and that the allegations, if established by evidence, would require that the case be submitted to a jury, and to sustain this position they rely very largely on the case of Gibbs v. Girard, 88 Ohio St. 34 [102 N. E. 299; 1914c Ann. Cas. 1082]. In that case the record disclosed what is called in the opinion a “sudden and immediate two inch drop” in the sidewalk, and it was held that the ease should have been submitted to the jury to determine as to the negligence of the village. That case was disposed of on a motion for a directed verdict, and the Supreme Court held that, for the purposes of the motion, the defect must be admitted. We can not extend the doctrine of the Girard case, founded, as it is, on a defective walk, to one where the only criticism of the walk is that it is built on an incline, as set forth in this petition. The case there under consideration was one of a defective walk and we have, therefore, to inquire whether the condition of the walk, as set forth in the petition in this case, discloses that the walk was defective.

We can not hold that a walk which is built on an incline of •ten inches in seven feet is a defective walk, nor one which of itself renders the municipality liable in damages to persons injured by falling thereon. To so hold would result in the bankruptcy of municipalities which were so unfortunate as to be built in hilly localities. A sidewalk in order to have drainage must be built either on a slant or crowning, and it could hardly be said that it was negligence for a municipality to permit a walk to remain in such condition; and neither can it be said that it is negligence to construct a walk on a street which is not level.

The Supreme Court held in Chase v. Cleveland, 44 Ohio St. 505 [9 N. E. 225; 58. Am. St. 843], that it was not actionable negligence for a city to suffer ice and frozen snow to accumulate on a sidewalk and be beaten smooth and slippery, and for that reason dangerous to those passing along it; and it is said in that case that the condition was transient in character and not such as to ordinarily require the interference of the city authorities for its abatement, the duty of the municipality being only to exercise ordinary care. To prohibit the construction of such a walk as is described in the petition in this case, or to hold municipalities liable by reason thereof, would be impracticable.

Another case to which I call attention is Norwalk v. Tuttle, 73 Ohio St. 242 [76 N. E. 617]. In that case, a recovery was denied the plaintiff for damages suffered by failing on an icy sidewalk, because the conditions did not disclose any structural defect in the walk, and the eity was not liable for the icy surface, that slippery condition being the result of natural causes.

Under the doctrine of the two cases last cited, a recovery would he impossible in the ease at bar without holding that the walk as constructed ivas structurally defective, and to so hold would overturn fundamental principles and he manifestly unjust to municipalities. A petition to recover damages for an injury caused by slipping upon an icy sidewalk, where the only complaint made against the walk is that it has an incline of ten inches in seven feet, and was covered with ice produced by natural causes, does not state a cause of action and the demurrer thereto ivas properly sustained.

The judgment of the court of common pleas will he affirmed.

Chittenden and Kinkade, JJ., eoneur.


author: CHITTENDEN, J.

text:
    COURTS — NEW TRIAL.
    [Lucas (6th) Court of Appeals,
    June 7, 1916.]
    Richards, Kinkade and Chittenden, JJ.
    Adolph Brand v. Michael Murray et al.
    Justice of Peace May Grant New Trial Because Verdict is Contrary to Law, not Sustained by Sufficient Evidence and Error in Admission of Evidence.
    The authority of a justice of the peace to grant a new trial is not limited to the grounds named in Sec. 10352 G. C., but since the amendment in 1902 of Sec. 6565 R. S., as now contained in Sec. 10361 G. C., a justice of the peace may also grant a new trial on the grounds named in that section.
    [Syllabus by the court.]
    Application for rehearing of motion to sirike hill of exceptions from the files.

      C. 8. Curtis, for plaintiff in error.

      Lawton é Saalfield and J. I. O’Connor, for defendants in error.
   CHITTENDEN, J.

This cause is being considered on an application for rehearing of a motion to strike from the files the bill of exceptions for the reason that' the same was not signed within the time required by statute. The cause was tried before a justice of the peace who rendered a decision and entered judgment on December 7, 1915. On December 10, 1915, a motion for a new trial was filed. The hearing on this motion was adjourned from time to time, and the motion was heard on December 20, 1915, and was overruled, exceptions noted and ten days allowed for the filing of a bill of exceptions. The bill of exceptions was signed and filed on December 29, 1915. The motion for a new trial was based upon several grounds, among others, that the judgment rendered is contrary to law, that it is not sustained by sufficient evidence and because of error in the admission of evidence.

It is contended by defendants in error that the exceptions should have been prepared, allowed and signed within ten days from the entering of the judgment, and that the motion for a new trial filed by the defendant below, not being based upon statutory grounds, can not operate to extend the time for the signing of such bill of exceptions. It is contended that the authority of a justice of the peace to grant a new trial is limited by the terms of Sec. 10352 C-. C., which, in substance, provides that a new trial may be granted when the justice is satisfied that the verdict was obtained by fraud, partiality or undue means, and that the causes mentioned are the only grounds for a new trial, and apply only when the ease is tried by a jury.

Reliance is had upon the ease of Thompson v. Ackerman, 32 Circ. Dec. 456 (21 R. 740), and that decision does sustain the proposition contended for by defendants in error. That decision was rendered in 1901 when there were no grounds for a new trial except those contained in Sec. 6560 R. S., now 10352 (3. C. At the time of that decision See. 6565 R. S., now 10360, 20361, 10362 and 10363 G. C., was in the form found in 93 0. L. 104. See. 6565 R. S., as there enacted, referred to no grounds for a new trial in addition or supplemental to Sec. 6560 R. S., and the same situation is true as relates to the decision of the Supreme Court in State v. Langenstroer, 67 Ohio St. 7 [65 N. E. 152], the facts in the latter case bringing it under the act found in 93 O. L. 1.04.

In 1902 See. 6565 R. S. was amended, and by the terms of the amendment additional grounds for a new trial were incorporated therein, as found in See. 10361 G. C., its provisions now being that if the “exception is to the decision of the court on a motion to direct a nonsuit or to arrest the testimony from the jury, or for a new trial because the verdict, or if the jury is waived, the finding of the court is against the law and the evidence, or on the admission or rejection of evidence, the party excepting must reduce his exceptions to writing” and present them to the trial justice within the time limited by the same section (now Sec. 10360 G. C.), which is within “ten days from the date cf overruling the motion for a new trial,” if such motion be made, etc. It will be seen that a radical change in the terms of Sec. 6565 R. S. was made by this amendment, and that the decisions cited by defendants in error were rendered with reference to the law as it stood before the amendment. The wording of the sections as now found in the. General Code is, we think, plain and unambiguous, and we hold that the bill of exceptions wai filed within the time provided by statute.

The application for rehearing will be denied.

Richards and Kinkade, JJ., concur.


text:
    ERROR.
    [Allen (3rd) Court of Appeals,
    March 16, 1917.]
    Chittenden, Richards and Kinkade, JJ., of the sixth district sitting by designation.
    Farmers Banking Co. of Pandora v. William H. Harper, Jr.
    Verdict Directed on Retrial for Defendant Because Reviewing Oourt Reversed Judgment for Plaintiff on Weight of Evidence, Evidence not Substantially Same, Held Erroneous.
    Where a former judgment for the plaintiff has been reversed on the sole ground that it was against the weight of the evidence, and on a retrial a verdict is directed for the defendant on the ground that the judgment of the reviewing court had established the law of the case, such order directing a verdict is erroneous when the evidence on the second trial is not substantially the same as on the first trial, and the plaintiff having made a prima facie case, the judgment on the directed verdict will he reversed.
    [Syllabus by the court.]
    Error..

      Hughes & Tripplehorn, for plaintiff , in error.

      Wheeler & Bentley and <7. W. Askins, for defendant in error.
   RICHARDS, J.

This action was brought for the purpose of holding the defendant liable as endorser on a promissory note which he had endorsed and transferred to plaintiff. On the first trial of the case each party, at the conclusion of all the evidence, moved the court for a directed verdict, and the trial judge, after due consideration, found and determined that the plaintiff was entitled to a judgment for the amount of the note and rendered judgment accordingly. Harper prosecuted error to this court and the judgment was reversed on the ground that it was contrary to the weight of the evidence, the decision of this court being announced on February 7, 1916, and the case being remanded for further proceedings.

It is said in argument that this court in rendering the judgment of reversal was mistaken in assuming as a fact that Harper did not prevail in a certain other action, some of the proceedings of which had been offered in evidence, it being now contended that as a matter of fact the action referred to has not yet been disposed of. Technically the statement of this court was correct in that Harper, of course, has not prevailed if the action referred to has not been disposed of. The record shows that the action to which reference was there made was commenced on September 5, 1911, and possibly this court had in mind the well known principle of equity that things which should have been done will he presumed to have been done, and from this principle reached the conclusion that the action must have been disposed of, it having been pending all those years. However, the dispose •> of that ease is a matter of little importance to a determinatu. of the case at bar.

On the retrial of the instant easu the trial judge at the conclusion of the evidence offered on behalf of the plaintiff directed a verdict in favor of the defendant, basing his action upon the ground that the court of appeals having already determined that the former judgment was against the weight of the evidence, had thereby established the law of the case and that the defendant was, therefore, perforce entitled to a verdict by direction of the court, the evidence on the retrial being the same.

This position is earnestly contended for in this court by counsel for the defendant. Tn order to determine whether the contention is correct it will he necessary to examine the record on the retrial of the case. That trial opened with the following statement made by counsel for plaintiff: ■ ■

“It has been agreed that we may read, all of us, the testimony on both sides that has been given in the former trial, subject, of course, to any objections to the competency or otherwise of the testimony.”

Counsel for the defendant then stated that the testimony could he read, instead of calling the witnesses again, and that this was all that they agreed to. After these preliminary stater ments the record recites that thereupon counsel for the plaintiff, to.maintain the issues upon its part to be maintained, called as a witness for cross-examination only, William H. Harper* Jr., who being first duly- sworn, testified as follows: the bill of exceptions then proceeding to set out in full his eross-examination. The only conclusion from which the court could draw the inference that the witnesses were not actually produced in open court and re-examined is based on the statements already made by counsel, and the fact that the testimony of the witnesses is contained within quotation marks. We assume that this testimony was read from the previous record in the ease.

It does not, however, appear that all of the evidence which was introduced on the first trial was introduced on the second trial of the ease. On the contrary, the record affirmatively shows that it does not contain all of the evidence which was introduced on the first trial. The judgment which was rendered on the first trial is shown by the journal entry thereof to have been rendered after both the plaintiff and the defendant had introduced evidence and rested; whereas the judgment rendered on the second trial is shown to have been rendered at the conclusion of the evidence offered on behalf of the plaintiff, and the bill of exceptions shows that it does not contain the evidence offered by the defendant on the former trial, because all of the witnesses are examined in chief by counsel for plaintiff, whereas if any of the evidence was that which had been offered by defendant on the former trial it would appear that the witnesses called by him had been first examined by his counsel.

It is manifest, therefore, that the bill of exceptions now before us does not contain any evidence offered on the former trial on behalf of the defendant, and we are not permitted to assume what that evidence may have been. Bach party, as is well known, is entitled to the benefit of all the evidence no matter by whom it may have been offered.

Reliance is placed on the Michigan Mutual Life Ins. Co. v. Whittaker, 29 O. C. C. 362 (9 N. S. 126). In this case the circuit court sitting in Hamilton county reversed a second judgment which had been rendered and entered a final judgment in favor of the plaintiff in error, basing its action on the ground that the former reversal had been on the weight of the evidence and that this having determined the law of the case a similar verdict should be directed on a retrial of the case in the absence of additional testimony. This ease was carried to the Supreme Court and is there found reported under the title of Whittaker v. Insurance Co. 77 Ohio St. 518 [83 N. E. 899], where the judgment of reversal is affirmed, but the final judgment rendered by the circuit court is reversed and the cause remanded for a new trial. The Supreme Court, however, did not determine whether the. principle announced by the circuit court was a correct statement of the law, but Shauck, C. J., speaking for the court, on page 521, said:

“Assuming the correctness of that view respecting the effect of the former judgment of the circuit court, there are two reasons why it should not have been applied in the present ease. ’ ’

One of the reasons found to exist in that case is mainifest upon the face of the record in the case now under consideration, namely, it appears that upon the second trial of this case all the evidence was not offered which had been offered on the former trial of the ease. Counsel did not claim at the opening of the trial that they were going to offer all of the evidence which had been offered on the former trial and, as already stated, the record itself shows that if they had made such contention it was not carried out.

If we assume the correctness of the decision cited in Michigan Mut. Life Ins. Co. v. Whittaker, supra, the authority can only be applied in a ease where the evidence on the retrial is substantially the same as on the first trial. If the record discloses that such is not the case, and if the plaintiff by evidence offered on a retrial makes a prima facie case, the sufficiency of the evidence would, of course, come within the general rule of law and have to be submitted to the jury for its determination. Manifestly when a reviewing court reverses a case for the sole reason that the judgment rendered was against the weight of the evidence, that holding could not be the law of the ease in any future trial unless the evidence on such future trial should be substantially the same as that offered on the former trial. In a ease where a judgment has been rendered for the plaintiff and a reviewing court, finding that the same is against the weight of the evidence, reverses and remands the cause for a new trial, the judgment of reversal may be based upon evidence which came from witnesses called by the defendant.

Upon the general question now under consideration see Sidney v. Schmidt, 33 O. C. C. 128 (14 N. S. 417), and Firemen’s Ins. Co. v. Stern, 11 Cir. Dec. 818.

Furthermore, it appears from the record that on the last trial IT. G. Eysenbaeh was called as a witness and testified and that he had not testified on the former trial of the case. Certain portions of his testimony are material to the issues between the parties, and the weight which should be given to his testimony was of course a matter for the jury. It may be, as has been stated, entirely cumulative and not very important, but it is certainly entitled to some weight, and the plaintiff was entitled to strengthen its ease by submitting on the retrial whatever additional evidence it might have, whether cumulative or otherwise, and was entitled to have the .weight thereof deterja ined by the jury.

Finding that the plaintiff on the retrial of the case introduced evidence making at least a prima facie ease in its behalf, and that the evidence was not substantially the same as on the former trial, it follows from what has been said that the judgment based on the directed verdict must be reversed and the cause remanded for further proceedings. .

Chittenden and Kihkade, JJ., concur.


text:
    DRAINS AND DITCHES — TOWNSHIPS.
    [Williams (6th) Court of Appeals,
    October 26, 1916.]
    Kinkade, Chittenden and Richards, JJ.
    John Raymond et al. v. Millcreek (Tp.) Trustees.
    1. Township Trustees Authorized to Employ Engineer to Supervise Construction of Township Ditch.
    The ditch laws were enacted for the purpose of securing a systematic and proper drainage of the country and it was the evident intention of the legislature that the work should he conducted by the township trustees with such engineering aid as is necessary to carry into practical and successful effect the project of drainage in a given territory and to equitably assess, the cost thereof, and such trustees are authorized to employ an engineer to supervise and inspect the construction of a township ditch, and to report on the same to such trustees.
    2. Discretion of Township Trustees not Interfered with by Court except in Case of Fraud or Gross Abuse.
    The courts will not interfere with the action of tribunals selected by the legislature to perform certain duties unless it is made apparent to the court- that the action of such board or tribunal is such as to amount to fraud, bad faith, or a gross abuse of the judicial discretion reposed in such board or tribunal.
    [Syllabus by the court.]
    Appeal.

      JC(hoard Gaudern, for plaintiff.

      Newcomer N Gebhard, for defendants.
   CHITTENDEN, J.

This is an action to restrain the certifying of certain ditch assessment to the county auditor on the ground that certain items included in the assessments are excessive and illegal.

The trustees of Millcreek township located a township ditch, with certain branches, aggregating in length approximately three miles. John Mattoon was employed by the trustees as the engineer to locate, level and measure the course of the ditch, to prepare plans and specifications therefor, to supervise and inspect- the construction of the ditch and accept the same for Hie trustees. The bill of Mr. Mattoon approved by the township trustees contained an item of forty and one-half days at $-1 per day for surveying and leveling and making a report to the trustees, amounting to $162.00. It is conceded that this total is not correct for the reason that the statute limits the amount of compensation that may be made by township trustees to engineers engaged in township ditch work to four dollars a day for field work aud three dollars per day for inside work. The evidence in the ease shows that eleven days were spent in the field and twenty-nine and one-half days in the office. Therefore, the hill should he corrected in this respect by computing the office work at three dollars per day instead of four dollars per day. The hill also contains an item of expense while engaged in the field work of $4.50. We find no statutory authority for the allowance of this item and it will, therefore, be excluded.

The principal item in controversy is one of $128.00 being tbe amount charged by the engineer for the supervision of the construction of thirty-two working sections of the ditch, allowing one day to each section. It is earnestly árgued that there is no authority whatever for the allowance of pay for such services. The question as to the validity of the item must largely binge upon a proper construction of Sec. 6612 G. C., which defines the duties of the trustees and empowers them to employ an engineer. So far as the section relates to the question here involved, it reads as follows:

“The trustees may employ an engineer to locate, level and measure the course of such ditch, and such other assistance as they need.”

Some light is thrown upon the section from which the above quotation is taken by See. 6619 G-. C. which provides for the fees to he paid officers and others in the locating and establishing of township ditches. This section provides that engineers may be paid four dollars per day for locating and three dollars per day for making plat, profile and specifications.' It is to he observed that the latter section allows pay for the making of a plat, profile and specifications, although ■ See. 6612 does not specifically authorize the trustees to employ an engineer for that purpose.

The ditch laws were enacted for the purpose of securing a systematic and proper drainage of the country arid it is evident that it was intended by the legislature that the work should be conducted by the trustees with such engineering aid as should be necessary to carry into practical and successful effect the project of drainage, in a given territory and equitably assessing the cost thereof. The drainage of a locality is essentially an engineering problem and is so recognized by the legislative enactments. Section 6612 as quoted indicates the legislative recognition of this statement in making provision for the employment of an engineer. In that section they specify the principal things to be done by the engineer, to-wit, level and measure the course of such ditch, and it being a matter of common knowledge that other engineering assistance may be needed it is by that section wisely left to the discretion of the trustees to employ such engineer to render “such other assistance as they need.’ The object to be attained by this legislation makes it manifest that this section should be read as though it contained the word “render” immediately preceding the word “such,” so that the section would read:

“The trustees may employ an engineer to locate, level and measure the course of such ditch and render such other assistance as they need.” We can see no other construction of this section consistent, with the purpose for which the section was enacted. When so construed it furnishes ample authority for the board of trustees of the township upon whom the duty of providing for proper drainage is imposed, to efficiently and in a businesslike manner discharge the duties thus east upon them. This construction in no way deprives the township trustees of the power to employ axemen and ciiainmen to assist the engineer. The power to employ such assistants is clearly implied from Sec. 6619 Gr. C-, which fixes the compensation of such employes, and furthermore such assistants to the engineer are but necessary incidents to the work that he is employed to do.

Certainly it would be inexcusable upon the part of the trustees to apportion the construction of a ditch and branches having a length of three miles, and permit its construction without giving it any supervision or inspection to know that the plans and specifications had been complied with. It would involve the independent labor of many different people on the various sections and supervision and inspection of such work are quite necessary in order that the completed ditch shall answer the purpose for which it is designed. If such inspection. had been made by the trustees they would, under the statute, be allowed one dollar and fifty cents each per day, or a total of four dollars and fifty cents per day, for making this necessary inspection, and it is self-evident, therefore, that by employing the engineer in question, who is conceded to be expert in this line of work, not only was scientific and expert inspection and supervision secured, but it was secured at a less expense to the land owners than would be an inspection by-the trustees themselves.

The.record further discloses that all that was done in respect to the hiring of the engineer was in the presence of and with the knowledge of the plaintiffs in this ease, and that it was done without any protest upon their part. The bill for services was presented to the township trustees and was approved by them at a meeting at which the evidence shows the plaintiffs were present, and they interposed no objection thereto. In view of these facts it is difficult to see how the plaintiffs have the right to . appear in a court of equity and ask the extraordinary writ of injunction to restrain the certifying of the bill, a.t least in so far as the work has been performed.

It is further claimed that even if the services were such that the trustees might legally pay for them, they are excessive; that the work should have been performed in much less time than that for which the charge is made. The duty of determining the correctness of the bill is by law devolved upon the trustees of the township.

The courts of this state are not authorized to, and ought not, interfere with the action of tribunals selected by the legislature to perform certain duties, unless it is made apparent to the court that the action of such board or tribunal is sueh as to amount to fraud or bad faith or a gross abuse of the judicial discretion reposed in such board or tribunal. This principle of law is so thoroughly established that it is unnecessary to cite authorities.

The petition does not allege any bad faith upon the part of the trustees but only that they have been guilty of gross negligence in allowing the bill of the engineer for the amount stated therein. The burden of proof is upon the plaintiffs to show such an abuse of discretion as would justify the interference of a court of equity. We find that the evidence of the plaintiffs falls very short of establishing any such state of facts as would justify an interference on the part of this court with the action of the trustees.

Finding, therefore, as we do, that there is statutory authority for employing an engineer to supervise and inspect the work, the allowance made by the trustees should be corrected by eliminating therefrom the item of $4.50 for expense of the engineer, and $29.50, the amount of the? excess charge for making plans and specifications, as hereinbefore slated. The apportionment should be modified as above indicated, and the defendants will be enjoined' from certifying anything in excess of that amount.

Richards and Kinkade, JJ., concur.


text:
    CONSTABLES — OFFICE AND OFFICERS.
    [Lucas (6th) Court of Appeals,
    July 22, 1916.]
    Chittenden, Richards and Kinkade, JJ.
    State ex rel. Stiles v. Gabe Cooper, Aud.
    Compensation of Constables in Prosecutions for Neglecting Chitaren.
    The limitation fixed in Sec. 3019 G-. C. of $100 per year for services rendered by a constable, does not apply to services rendered by him under Secs. 13436 and 13439 G. C. in prosecutions for neglecting minor children.
    [Syllabus by the court.]
    Mandamus.

      L. IS. Mallow and W. T. 8. O’Hara, for plaintiff.

      J. C. I)’Alton, Pros. Atty.,- and A. J. Seney, for defendant,
   RICHARDS, J.

This is an original action in mandamus filed in this court on June 39, 1916. The defendant has filed a demurrer to the petition. The petition sets forth, in substance, that the relator is a duly elected and acting constable in and for Washington township, this county, and the defendant is the auditor of the county, and tliat in February, 1916, Oscar Redding, a justice of the peace in said township, duly issued and delivered to relator a warrant for the arrest of a defendant upon a charge that such defendant was neglecting his minor children, in violation of Sec. 12970 G. C. The petition further avers that the relator, in obedience to the command of the warrant, arrested said defendant and brought him before the justice of the peace, and that thereupon the defendant waived, in writing, a trial by jury and was tried before said justice of the peace and adjudged to be not guilty, and was discharged from custody. The petition further avers that the fees taxed on behalf of this relator by the justice of the peace for pursuing and arresting the defendant and subpoenaing witnesses are the same as those allowed by law to the sheriff in criminal cases-, as provided for in Sec. 13436 G-. C., and that all other fees therein taxed are the fees allowed by law to constables as provided for by Sec. 3347 G. C., the total fees taxed in favor of relator being $3.80, and that this amount was duly certified by the justice of the peace to the defendant as county auditor. The relator further avers that there has been heretofore taxed in his favor by said justice of the peace, under Sec. 13439 G. C., during the year 1916, as fees in criminal cases brought before said justice of the peace wherein the defendants were charged with neglecting their minor children, the aggregate sum of $103.05. Relator avers that the defendant as county auditor neglects and refuses to issue a warrant in the amount of $3.80 in favor of relator, on the treasury of Lucas county, and he prays that said defendant may be compelled to issue his warrant in favor of the relator for said sum.

The action is brought to determine the construction of the statutes relative to fees of constables where defendants are prosecuted for the neglect of minor children. The provisions of the General Code which bear on the matter in controversy are Secs. 3016, 3017, 3019, 13436 and 13439. The first three sections cited supra have been embodied in the statutes of the state for many years and cover prosecutions under the general criminal laws of the state. Section 3019 G. C. is limited in its operation, by its terms, to felonies wherein the state fails, and .to misdemeanors wherein the defendant proves insolvent and the limitation of one hundred dollars which may be allowed to a constable in any one year is for services in the class of cases therein enumerated. No provision is made therein for any class of cases except the ones mentioned, to wit, “felonies wherein the state fails,” and “misdemeanors where the defendant proves insolvent.” The ease set forth in the petition in mandamus does not fall within either of those classes. Sections 13432 to 13440 G. C., inclusive, were originally Sec. 3718a R. S., first enacted in the year 1884, and were applicable to prosecutions for eruelty to children or animals, and for adulteration of food, etc. In that class of cases the general assembly saw fit to authorize prosecutions without empowering the magistrate to require security for costs, and to allow to constables increased fees for services in such cases, making the same allowances to such officer as are provided for sheriffs.

To-further stimulate the prosecution of such offenses, See. 13439 G. 0. not only dispenses with the duty of giving security for costs, but provides that if -the defendant be acquitted or discharged', or convicted and committed in default of paying fine and costs, “all costs of such case shall be certified, under oath, by the proper magistrate to the county auditor, who, after correcting errors therein, shall issue a warrant on the county treasury in favor of the person to whom such costs and fees are payable.” - This section and the allied sections are im effect a supplement to Sees. 3017 and 3019 G. 0., and cover cases not embraced within those sections.

We find no limitation in the General Code as to the amount which may be allowed in any one year to a constable for services rendered under Secs. 1.3436 and 13439 G. C. The provisions of the code fixing salaries for sheriffs and authorizing annual allowances for them in certain eases, have nothing to do with the amount provided by statute for constables.

The demurrer to the petition will be overruled and judgment entered for the plaintiff, awarding a writ of mandamus.

Chittenden and Kinkade, JJ., concur.