author: Russell, J.

text:
    (First Circuit — Clinton Co., O.. Circuit Court
    May Term, 1897.)
    Before Cox, Smith, and Russell, JJ.
    (Judge Russell of the Fourth Circuit,taking tho place of Judge Swing.)
    STEPHEN FEIKE v. C. & E. RAILWAY CO.

      Mechanic’s Lien — Railroad Bridge — Work commenced as sub-contraetor, afterwards completed under direct contract with R. R. Co —

    _A mechanic’s lien can only arise on a contract made with the owner, and dates from the first item of work done under such contract. And where a party commenced the work as a sub-contractor, but the principal contractor abandoning the work, he afterwards completes the work under a contract made directly with the owner, his mechanics’ lien will only date from the first item of work done under such contract with the owner directly. And where such owner, a railroad company, in the meantime, and before such direct contract to complete the work, has executed a mortgage to a trustee covering all its property then in its possession, and afterwards to be acquired, to secure an issue of bonds, such mortgage will have priority over such mechanics’ lien.
    Error to Court of Common Pleas of Clinton county.
   Russell, J.

This action was brought in Clermont county common pleas by the plaintiff, asking for the appointment of a receiver of tbe defendant road, and was subsequently transferred to the Clinton county court of common pleas, for hearing. While the action was pending in Clinton county •common pleas, proceedings were taken in the District Court ■of the United States for the southern district of Ohio, by trustees for certain mortgage bond-holders, to foreclose the mortgage and sell tbe defendant’s road. The road was sold, proceeds all distributed, except enough to satisfy the claim •of Casement, Kelly & Co.,who filed their answer and cross-petition herein, claiming a prior right to the funds so re•served to that of the trustee of the bond-holders, Hon. B. R. Cowan.

The facts, as found on the trial of the cause, are as follows:

On the 26th day of June, 1876, The Cincinnati & Eastern Railway Company, then being engaged in the building of its railroad from tbe city of Cincinnati to Portsmouth, 0,, to secure the payment of seven hundred and sixty bonds, ■amounting to the sum of five hundred thousand dollars, (1500,000,) with which to raise money for the completion of its road, executed and delivered its mortgage deed of that •date, to a trustee upon all its real and personal property, legal and equitable, then owned by it or thereafter to be acquired, as well as the income thereof. That said mortgage deed was afterwards duly recorded in all the counties through which said road was afterwards built, That at the time of making said mortgage said railroad was only partially built, and no part of the line of said road had been located in the county of Scioto. That some time during the month of September, 1882, preliminary surveys were made for the bridge across the Scioto river near the city of Portsmouth, Ohio, and the permanent location of said bridge was made about October, 1862, near the line where the preliminary survey was made in September. Possession of the land on which the piers and bridges were afterwards built, was taken by said railroad company in the month of September, 1882, but no title was obtained by condemnation or purchase until November 2, 1882. That all of said bonds had been issued and sold before September, 1882. That some time in September, 1882, the said railroad company entered into a contract with the firm of Dewey & Campbell to construct a certain portion of its road, which included a bridge across the Scioto river, which required the building of seven piers. That the construction of said seven piers was, on the 21st day of September, 1882, sub-let to the firm of Casement, Kelly & Co., who some time in the month of September, 1882, began the work of constructing the said piers, and continued the same until the latter part of November, 1882, when the firm of Dewey & Campbell abandoned their said contract, owing Casement, Kelly & Co., for a large part of their work. Thereupon, Casement, Kelly & Co., entered into a contract with the railroad company, to complete the said seven piers, and the said company agreed to pay the sum then due from Dewey & Campbell,and for the balance of the work to be done. That Casement, Kelly & Co completed the construction of the said piers in the month -of April, 1883. That the firm of Casement & Kelly, as the survivors of Casement, Kelly & Co., on the 18th day of May, 1883, filed a verified account, according to law, with the recorder of Scioto county, for a mechanic’s lien on the said bridge and piers. That afterwards the said Casement & Kelly brought an action in the court of common pleas of Scioto county, Ohio, on the said claim, and recovered a judgment for the full amount of labor and material furnished in and about the building of the said seven piers. And the said court found that the said Casement & Kelly were entitled to a mechanic’s lien against the said bridge and piers for the same, and that they were entitled to a sale of the whole road. But said court found that the exclusive right to sell said road and determine the priorities of the liens, belonged to the said court in Clinton county. And by consent of parties, ordered “That the question of pirority of liens as between Csaement & Kelly and the mortgage creditors of said railway company, be reserved for consideration and determination by said Clinton county common pleas.” On the hearing of the case before the Clinton common pleas court, a decree was rendered in favor of Casement & Kelly for the amount of their claim,and giving them priority therefor over the trust. And from this decree the trustee, B. R. Cowan, appeals to this court. After the evidence was heard in this court, and before the argument was closed,a motion was made to dismiss the appeal, on the ground that the case is not appealable. This motion is overruled, this court holding that this case is appealable. On the fore-going facts it is claimed by Casement & Kelly,that they' have a prior claim to this fund, and a superior equity to that of the trustee for the bond-holders, because, by the judgment and decree of the Scioto county common pleas court, finding the amount due Casement & Kelly and decreeing the same to be a lien upon the bridge piers and land upon which the bridge stands, and the pleadings then before that court, that this question is res adjudicata.

We cannot agree with counsel on this proposition. Upon examining the record of the Scioto county common pleas,we find that court expressly reserved the question of the priority of liens as between the bond-holders and Casement & Kelly for a decision of the Clinton county court, in the following language in the decree:

“That the question of priority of liens as between Casement & Kelly, and the mortgage creditors of said railway company, be reserved for consideration by said Clinton common pleas.”

From this reservation, it is clear to us that the Scioto ■common pleas did not decide upon the question of priorities, but by the consent of parties, left it an open question to be determined by the Clinton common pleas court. Had this reservation not been made,from the record otherwise before us, we should be compelled to say that the court had not adjudicated on this question,because no finding of priorities is made by that court, and no presumption can be assumed in favor of one or other of the parties who were before that court contending for the priority, The law is well settled in Ohio by our supreme court, in the case of Petersine v. Thomas, 28 Ohio St., 596, as to when a matter will be presumed to have been finally determined, but the determination of the Scioto common pleas does not come within the rule there laid down, Having arrived at the conclusion that the question of priority has not been adjudicated, but is before us for a determination on the facts found by us from the evidence and pleadings, we proceed to the second claim made by Casement & Kelly, that their claim is prior in noint of time to the claim of the trustee, because, they say, their claim dates from September 21st, 1882, by reason of their contract with Dewey & Campbell as sub-contractors, and after the abandonment of the contract by Dewey & Campbell, their contract made the latter part of November, 1882, with the company,to complete the contract of Dewey & Campbell to finish these seven piers, and that the railway company did not obtain any title, legal or equitable, to the land upon which these piers were built, until the 2nd day of November, A. D., 1882. And that, when the railway company did get title to the land, these piers were being built upon it, and the company took it cum onere; That, therefore, Casement & Kelly’s claim is prior to that of the ■trustee. The evidence in the case shows that the railway company took possession of the land oh which these piers stand, some time in September, 1882, ran their preliminary-survey, and that afterwards, November 2, 1882, -it got the legal title to this land, and that Casement & Kelly did not have any contract with the railway company- until the latter part of November, 1882. We think the mortgage attached to. the equity of the company that it obtained by its possession in the early part of September, 1882, and would be prior in time to the contract made by Casement & Kelly with Dewey & Campbell; but, if this were not the fact, we are satisfied that Casement & Kelly could not have a lien as of date of 21st of September, 1882, on a contract made with the company in the latter part of November, 1882.

Where the right of third parties intervened, as in this case, the right of the trustee — however it might be that, as between the company and Casement & Kelly, the company might be estopped from denying the right of Casement & Kelly, — yet the trustee cannot be prejudiced by a contract of that kind.

The statute is plain. The contract must be made with the owner, and shall date from the first item, meaning the first item under that contract — not under any other person’s, contract.

When certain work or materials are furnished under a contract with the owner, the statute fixes the lien and should be liberally construed by the courts. But the courts have no power to substitute a contract made with another contractor and the owner, for one made by these claimants long afterwards with the owner.

The lien is not created by contract, but by statute; and the statute only creates a lien when certain other things exist, to-wit: work and materials furnished under a contract with the owner. Then the statute applies. Therefore it follows that work done for the owner and materials furnished without a contract with the owner, but on a contract with some other party than-the owner, can not create any lien against the property of the owner. Neither can the owner make a contract that will ante-date the making of the same, to create a lien superior to some other lien, because the lien is not a creature of contract, but of statute.

Therefore it follows that the bond-holders have a lien from September, 1882, on the equity of the company, and-a lien on the legal title of the company as of date of November 2, 1882, and that Casement & Kelley’s lien, dates as of the last of November, 1882, unless the third proposition of counsel for Casement & Kelly is the rule of law to be applied to this case, to-wit: that the bridge structure and piers are no part of the road of the company, and do not pass under the mortgage as after-acquired property until finally completed and attached to the road. That after-ac quired property passes by a mortgage of the kind given in this case, is no longer an open question in this state. See Cooper & Clark v. Wolf et al., 15 Ohio St., 523.

When does the bridge and piers become a part of the road so as to pass under the mortgage in this case — when they are being constructed on the line of the road and on the land of the company as a part of its line and road-way, or not until their final completion and attachment to the road to be used in connection with the main line?

Counsel for Casement & Kelly, contend that these piers do not become part of the road, so as to pass under the mortgage,until finally attached and made a part of the road.

. We can not agree with counsel on this proposition. We are of the opinion, that as soon as the railway company took' possession of the land on which these piers were to be placed, the company thereby acquired an equity in the land, which passed at once under the mortgage, to the mortgagee, and that when Casement & Kelly commenced to construct these piers, they did so on land already mortgaged to the trustee, under the clause as to after-acquired property. But. it is strenuously urged by counsel, that in the case of Bowman, trustee, v. Smith Bridge Co., 1 C. C. Rep., 64, the . circuit court held, that a bridge did not become a part of the road until it is attached to and made a part of the road, and that,therefore, these piers and bridge did not pass under the mortgage until so attached, and that they were not. attached until long after the lien of Casement & Kelly had attached, and, therefore, the railway company, took them with the burden of the lien of Casement & Kelly upon it. ■. •

We cannot agree with counsel in their views of what the court decided in that case. The learned judges, in deciding that case, used language that might be so understood, but we must look at the facts of that case to enable us properly to construe the language there used.

The learned judge says,on page 66:

“Starting then with these two propositions, a third is un- , avoidable, namely, a railroad bridge does not become an accession to the railroad so as to become a part of the road, in such a sense as to be inseparable from it.” The learned judge was speaking with reference to the statute. That under the statute, the bridges were not so attached that they could not be separated from the railroad so as to create a lien upon them separate from the road. That was the only question in that case in controversy, as the Smith Bridge Company’s lien was prior in point of.time to the mortgage.

J. TV. Bannon and J. J. Glidden, for Casement & Kelly

A. C. Thompson, "Walter A. DeCamp, and Thomas Hollister, for B. R. Cowen, trustee.

We have examined the other authorities submitted by-counsel, which it is claimed support his proposition.

'We do not think counsel is supported by them. We think the piers and bridge, from the beginning of the same, were covered by this mortgage. 1 Jones on Mortgages, secs.'152, 153,' and many other authorities that might be cited.

• It is finally claimed, that the equity and justice in this case is with Casement & Kelly, they having improved the' property of the mortgagees, and are only asking 'to have, out of 4his-fund, what théy have added to it, and therefore' the court ought to give them what they claim. There is' great force in this argument, and it would seem but just and equitable to take this view; but we are met by the law, as decided by courts of the highest authority, to the con-' tiary. And when we reflect but for a moment, courts are not authorized to make contracts for parties, but simply to construe them when made. And however hard it may be upon litigants that they have not made the contracts they should have made, courts can not make new ones for them.'

The decree in this case will be for the trustee, for the fund and costs.


source: Caselaw Access Project

author: , .Smith, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    WILLIAM HIEATT v. MARY S. BLACK, et al.
    By the provisions of a will, a life estate in certain real estate was devised to five parties named in equal proportions, the will providing that no partition during the life or lives of any of such life tenants should be made unless it could be done without a sale of the land. Suit for partition being instituted - by one of the life tenants, a decree therefor was granted and commissioners appointed by the court to make partition, who reported that the land could not be aparted, and should be sold. The other co-tenants, defendants in the suit, thereupon asked leave to file supplemental answers setting up the provision of the will against a sale i‘n partition of the land during the life oí any of the co-tenants. The granting of such leave being resisted, on-the ground that it was then too late to set up this defense after the matter had been heard and adjudicated by the court and a decree for partition made. Held: that it was discretionary with the court to permit the filing of such supplemental answers, although the right of the court to order a sale might be resisted when an application is made to the court to order a sale.
    Appeal from the Court of Common Pleas of Hamilton county.
    Motion by defendants for leave to file supplemental answers.
   , .Smith, J.

The facts in this case,briefly stated, are these:

The petition in the case was one filed- by the plaintiff against Mrs. Black and others, for the partition of certain real estate described therein. It avers that he was seized and possessed of the one undivided fifth part of said premises for life, and that four of the defendants named, were each entitled to the one undivided fifth part thereof for life. That the other defendants named, children of the life tenants, and those children which may be born to the life tenants hereafter, are, and will be, the owners in fee of said estate, subject to the estates for life therein of the life tenants named. The petition further sets out in haec verba, the fifth item of the will of William Hieatt, deceased, which it avers was duly admitted to probate by the probate court of Hamilton county,Ohio,April 26, 1866,“a copy of which is hereto annexed, marked ‘Last will and testament of William Hieatt, deceased,’ and made a part hereof, and said will contained among other provisions a residuary clause, as follows;” and then follows item five, under which the parties claim. No other provision of the will was given or set out in the petition in substance or effect. The petition further alleged, that the sale of the premises will be for the benefit of the life tenants, and will do no substantial injury to those owning rights in remainder and expectancy, and that plaintiff desired to lave his interest set off to him in severalty.

He thereupon prayed that thére be set off to him, in severalty, the one-fifth part of said premises, and that partition be made; or if that could not be done without manifest injury, that such proceedings may be had as are authorized by law, and that the court may direct a sale of the said premises free of the rights of all the persons parties to this suit, and of those interested who may yet be born, upon such terms as maybe to the best advantage of all of the parties, and that the proceeds of such sale be paid, or invested for the parties according to their respective interests, and for all proper relief to which the plaintiff, at law or in equity, may be entitled.

The foregoing is the substance of the petition in so far as is relevant to the question submitted.

To this petition a general demurrer was filed, and on the hearing the court of common pleas sustained the demurrer, and the plaintiff not desiring to amend his petition, the action was dismissed at the costs of the plaintiff. He gave notice of appeal to the circuit court, and the case was appealed,- and in this court the question was presented, whether the petition stated a cause of action against the defendants. It was held by the court that it did, and the demurrer to the petition was overruled, and the defendants not desiring further to plead, the court found that the allegations of the petition were true,and rendered a decree, finding that the plaintiff and four of the defendants, (naming them), were tenants in common in the real estate described, each having a legal right to one-fifth part thereof, for his or her life, and that plaintiff was entitled to have partition of said estate as prayed for; and that the rights of the defendants, the children, and issue born or yet to be born of the defendant Mrs. Black, one of the life tenants, attach to the share of said premises to be set off in severalty to her,' and that their rights in the other four-fifth part thereof will be divested — or, in case a sale be necessary, that the-rights of said issue will attach to the proceeds of said sale, and shall be provided for and protected by the further orders of this court in the investment thereof; and a like order was made as to the issue of the other life tenants. It was then ordered, adjudged and decreed by the court, that partition of said premises be made in the proportion above described; one-fifth being set off to each of said five life tenants, “the rights of the parties and persons entitled under the will of William H. Hieatt, deceased, attaching and being preserved as herein before found,” and three freeholders were appointed commissioners to make the same, and it was further ordered, that a writ of partition issue to the sheriff, commanding him that by the oaths of the commissioners above named, “he cause to be set off and divided to each of the above named life tenants, the part and proportion of said estate and premises to which they are severally found entitled, the rights of all other persons attaching as hereinbefore found; and if the same cannot be done without manifest injury to the value of said premises and estate, that then the said premises be appraised at their true value in money, according to the statute in such case made and provided, and of his proceedings herein, the sheriff is ordered to make due return”

This is the substance of the decree entered. The defendants sough t to have this decree reversed by the supreme court, but having failod to file briefs or record in time, it was dismissed by the court.

'A writ of partition was then issued to the sheriff, and his return, and that of the commissioners therein named, show that the premises could not be partitioned as ordered, without manifest injury to the value thereof, and an appraisement was returned as ordered.

In the will of Wm. Hieatt, among other provisions, which may be of importance to the rights of the parties, is this provision: — “And it is further my will and I hereby devise and direct that my said estate shall not be partitioned during the lives or life of my said children, or any of them, unless the same can be done without a sale thereof.”

The opinion of the court as announced, was, that the demurrer to the petition was not well taken — that the petition did state a good cause of action It was clear in our opinion, that if the premises could be aparted among the life tenants according to their -several interests, that the plaintiff was entitled to that relief. But it is also true, that the opinion was expressed by the court, that if partition could not be made, that a sale of the premises might properly be had, — but this was not necessary to the decision of the question submitted.

After the coming in of the report of the sheriff and commissioners, the defendants, or some of them, moved the court for leave to file a supplemental answer, setting up this last provision of the will and the fact that the report shows that partition can not be made by metes and bounds, and therefore, that a sale should not, and can not be legally made by the order of the court.

This is resisted by the counsel for the plaintiff, upon the ground, that this question has been heard and adjudicated by the court, and that it should not again be put in issue.

It is clear that the court has held that the plaintiff was entitled to a partition of these premises if it could be made in this action by metes and bounds, and so ordered. We think that the decree does not find that if partition can not be made, that a sale shall be ordered. It was the opinion of the court, as the matter was then presented, that a sale might be ordered by the court, if the premises were not aparted. But this, in our opinion, is not settled by the decree which was entered.

It is therefore a matter of discretion with the court, whether such answers may now be filed. We doubt whether’ it is'at all necessary that this be done, as in our opinion, the question of the right of the court to order the sale, can be resisted when an application is made to the court for an order of sale, it appearing by the report of the sheriff and commissioners, that the premises can not be aparted. But in view of the fact that the provisions of the will,except one item, are not stated in substance and effect, but the will itself is attempted to be made a part thereof by reference, (which is not good pleading, but which may have been waived by failure to object to it), and there might be difficulty on this point, we are of the opinion that the rights of the parties can be better preserved and protected by allowing such answers to be filed.

A. B. Benedict, for Plaintiff.

Frank Coppock, and Wm. Worthington, for Defendants.


author: Smith, J.

text:
    (First Circuit — Clinton Co., O., Circuit Court
    May Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    E. D. SMITH v. THE MERCHANTS & FARMERS BANK.

      Negotiable instrument entitled to days of grace payable on last day of grace—
    1. A promissory note, entitled to days of grace, is due and payable on the third day of grace, and the holder can not be compelled to accept payment thereof, before the time the same become due and payable, and is entitled to interest on the same, (if it bears interest), until it is so due and payable.

      Same — Payee entitled to interest to last day of grace—
    2. Where such a note is made payable at a bank owned and carried on by the maker thereof, and such maker on the day on which said note by the terms thereof, is payable, that is three days before the last day of grace, sets aside the principal of said note with interest to that time, for the benefit of the holder thereof, said note not then being in said bank for collection, and which was not presented for payment until the third day of grace, and said maker then tenders to the holder the amount so set aside for the payment of the note, this is not a good tender of the amount due upon said note, and the holder is not bound to receive the same in full payment thereof.

      Same — Tender—Depositing certificate of deposit with cleric not compliance with the statute—
    3. Where suit is brought afterwards upon said note, and a plea of tender of the amount so set apart is made, and the defendant, the maker of the note, does not deposit the amount so tendered with the clerk, but in lieu thereoi£deposits with the clerk a certificate ol deposit for said amount issued by his bank, payable to the order of the clerk, this is not a deposit of money, and is not a compliance with the statute.
    [Petition in error filed in Supreme Court in this case, dismissed Nov. 10, 1897, for want of printed record.]
    Error to the Court of Common Pleas of Clinton county.
   Smith, J.

We are of the opinion that the judgment of the court of common pleas, giving to the defendant in error the full amount of the principal and interest of the note sued on, with costs, was correct and should be affirmed.

Clearly the instrument was one on which the maker was entitled to days of grace. It therefore did not become due and payable until their expiration. The holder, until that time, could not maintain an action upon it, nor could the maker, as a matter of right, pay the same before the maturity thereof. Of course, by agreement of the parties, payment might be made at any time after its execution. But in this case, there is no pretense that there was any actual consent on the part of the holder of the note to receive payment before the full maturity thereof.

The claim is made, however, that because the note in question by its terms was made payable at the Blanchester Bank, of which the plaintiff in error, Smith, the maker of the note, was the sole proprietor, (he doing a banking business in that name), that the bank, viz: Smith, himself, was authorized, as he did do, to set aside a sufficient sum to meet the principal of the note, and interest up to the first day of grace, and direct his cashier to pay that sum for the note if it should be presented for payment, (which presentment, however, was not made until full maturity thereof), and by a subsequent tender of that amount, before suit brought, followed by the bringing of the money ■ into court, he can escape further interest and the costs of suit. And this on the ground .that the Blanchester Bank, that is, Smith, himself, was the agent of the holder of the note, and could in this way, prevent the further accumulation of interest against himself.

Savage & Smith, for Plaintiff in Error.

Mills & Clevenger, for Defendant in Error.

In this case, it must be noted that the instrument in question never was in the Blanchester Bank' for collection, and was not,in fact,in the possession of Smith or of the bank for any purpose. Oan it be possible that by simply making a note payable at a particular place, as at a bank, that such bank, without having the possession thereof, can legally receive payment thereof, either before or after the maturity thereof, or make any arrangement in regard thereto, which will change the legal rights of the holder? We know of no such principle of law, and if there were, it might lead to most disastrous results. In such case, if the note is in the possession of the bank, there would be an implied power to receive payment thereof when due. If it is not, the maker after its maturity, may offer to take it up, and if he has the money there to do it, may thus absolve himself from liability to pay further interest, and if other proper steps are taken by him, to be free from further' damages or costs, if suit be-brought upon the instrument. But surely, if the bank does not hold the note for collection,it has no right to receive payment of it, in whole or in part, for in such case it was never authorized to do this. The holder is not bound to leave it there for collection. He may have reason to fear the insolvency of the bank, and to exercise his undoubted right to receive the money himself.

2nd. The plea of tender in this ease, is therefore not good, for the reasons stated, viz: that the proper amount was not tendered, and for the additional reason that the money has not been brought into court as the statute requires. The deposit with the clerk of a certificate of deposit, issued for the amount by the Blanchester Bank to the order of the clerk, is not a deposit of money.

The original controversy being in regard to 33' cents, the interest on the principal sum for three day,and there being; in our opinion, no reasonable ground for the prosecution of the proceeding in error, the judgment of the common pleas will be affirmed,with costs and the statutory penalty.


author: . Price, J,

text:
    (Third Circuit, Auglaize Co., Circuit Court
    April Term, 1897.)
    Before Day, Price and Norris, JJ.
    THE LAKE ERIE AND WESTERN RAILROAD COMPANY v. THE VILLAGE OF ST. MARY’S.

      Ordinance requiring lighting R. R- tracks in corporate limits— Fixed time within which to comply essential—
    Where an ordinance is passed by a village or city council under sec. 2494 Revised Statutes, requiring a railway company, or other parties operating a railroad, partly within such city or village, to light its bridges or crossings, it is necessary that the ordinance specify a time within which the same ' shall be done; and the omission to so provide is not supplied • by the notice from the city or village clerk provided for by . sec. 296.
    Error to the Court of Common. Pleas of Auglaize.county.
   . Price, J,

On the 9th day of February, A. D., 1895, the council of the village of St. Mary’s, Ohio, passed the following ordinance:

“Ordinance 130.
“To require the Lake Erie & Western R. R. Company to light its railway and bridges within the corporation limits.
“Section 1. Be it ordained by the council of the village of St. Mary’s, Ohio, that the Lake Erie & Western Railroad Company, possessing and operating a line of railway within the village limits, be, and is hereby required, the same being deemed necessary by the village council, to light the portion of said railway within the corporate limits with electric light in the same manner that the streets are lighted therewith, and with poles, lamps, and Sxtures of the same kind, the number of said lamps to be seven (7), and to be suspended and placed at the following points along said railway, to-wit: One where Spring street in said village crosses said company’s right-of-way; one where Vine street crosses said company’s right-of-way; one where Pine street crosses said company’s right-of-way; one where Main steet crosses said company’s right-of-way; one where Wayne street crosses said company’s railway; one where Perry street crosses said company’s' railway and one where the Reservoir pike crosses said company’s railway; and said lamps be constructed in all respects like the lamps now used to light the streets in said village, and said lamps shall be "kept burning during the hours fob lowing: from the hour of darkness to the hour of daylight on each and every day.'
“Section 2. That the work of lighting said railway shall be done under the supervision, and to the satisfaction of the lighting committee, :and the village clerk is hereby instructed and directed to cause due notice to be given to said company of the passage of this ordinance, by delivering a copy of this ordinance according to law, and in case said company shall fail to comply with the requirements of the same for a period of twenty (20) days from the delivery of said notice, that said lighting committee is hereby directed to cause said lamps to be so suspended, poles erected, and lighting to be done as herein above set forth, the cost thereof to be assessed upon the property of said company according to law, or to be collected as directed by law.
“Done at the council chamber in the village of St, Mary’s, Ohio, on this the 9th day'of February, A. D. 1895.
“M. J. Mooney, Jr; Clerk. W. L. Smith, Mayor.’’

Nothing was done under the provisions of this ordinance, by either the Railroad Co. or village, until February 20th, 1896, more than a year — when the village clerk served upon one or more agents of the company a written notice, with a copy of the foregoing ordinance, and the company failing for more than twenty days to do the lighting therein required, the village authorities caused it to be done, and followed the same with an ordinance, passed March 17, 1896, assessing the expense of the lights placed at the several crossings at the rate of $2.00 per month, commencing April 1st, 1896, on the property of the Railroad Company, situate within the corporate limits.

This course was an assessment in advance for the entire year, beginning April 1st, 1896, at the rate of $42.00 per month, which, in itself, presents a question worthy of serious consideration; but we deem it unnecessary to pass on it now, as there is another and vital question, back of it, the decision of which disposes ,of the case.

The village brought suit in the ciurt^below to recover of, the company the amount assessed for the months of April, May, June, July and August, 1896, and obtained judgment for about all of the amount claimed.

The two ordinances referred to are part of the bill of exceptions, and it is contended by the Railroad Company that the first ordinance — requiring the company to light the several crossings, is invalid because it is not in accordance ■with sec. 2494 of Revised Statutes — which is the only section conferring power on municipal corporations to pass such ordinances. This section authorizes the council to require the individual or company owning or operating a railroad, to light bridges or railroads within a specified time.

The section- reads:

“When it is deemed necessary by the council of any city or village, to have any bridge, or railway, located in whole or in part in such corporation, owned, possessed or operated by any individual, company, association or corporation, or any portion of the same, lighted, the council shall pass an ordinance for that purpose, requiring the individual, company, association or corporation owning, possessing or operating the same, to light such bridge or railway within a specified time. '''

It seems from the language of this section, that the council is to judge when the exigencies of the situation call for the lighting of the crossings or bridges; and when it deems the same necessary, it may require by ordinance, the individual, company or corporation operating the railway to light the same. But this is not all, If the council exercises this power so conferred, and passes such an ordinance for that purpose, it shall require the work to be done “within a specified time.’’1 It is in this particular that the ordinance in question is wanting. It appears complete-enough in all else, but omits what is, by this statute, made an essential element to create and fix a liability upon the railway company.

To omit the time within which the company is required to light, leaves the ordinance as a dead letter, for if there is no time at or within which it shall be done, the railway company may take its own course, and light or neglect to light, and the village is powerless to enforce obedience.

Before the municipal authorities can place and maintain the lights at the expense of the company and assess the same upon its property, the ordinance casting the burden must give and specify a time within which the company must comply with its-requirements.

The only other description of the character of the ordinance is found in the next section, 2495. It says:

“The ordinance shall specify the manner in which such bridge or railway shall be lighted — the number and style of lamps, posts, lights and fixtures, and the time such lights shall be kept burning in each twenty-four hours. ”•

All this is sufficiently covered by the terms of the ordinance, as already obáerved.

It is claimed, however, for the ordinance, that its second section supplies what sec. 2494 Rev. Stat. requires as to the specified time.

In the second section, the council directs that:

“The work of lighting shall be done under the supervision * * of the lighting committee, and the village clerk is hereby instructed and directed to cause due notice to be given to said company of the passage of this ordinance * * * and if the company shall fail to comply with the requirements of the same for a period of twenty days from the delivery of said notice, the said lighting committee it hereby directed to cause said lamps to be suspended, poles erected and lighting to be done. * *

It is plain that this section of the ordinance defines the duties of the village clerk of, and adds nothing -to the first section,. which undertakes to impose a duty and create an obligation upon the railway company in reference to its bridges and railway crossings.

These duties of the clerk* are provided for by the statute in sec. 2496.

“Notice of such requirement to light any bridge or railway shall be given at least twenty days before any penalty or charge shall be imposed for default. * * *’’

Default in what? Not default in complying with the notide served by the clerk — but default in lighting within the'time specified in the ordinance. * And if the railway company fail to perform within such specified time, before any penalty, or charge, can be imposed for the default, the clerk must give the twenty days notice provided for by sec. 2496 Rev. Stat,, and which is carried into section 2 of the ordinance.

While the notice of the clerk is a step in the course to the making an assessment, it is not the foundation for the ¡same. That must be found in the first' ordinance passed under sec. 2496, and it must contain what that section requires. The language is plain and needs no construction.

It is the province of the council to legislate' on the subject, and the duty of the clerk to aid in enforcing such legislation; but he has no power to add to it.

These views are in harmony with the policy of the statute regulating ditch proceedings, construction of sidewalks, and many other improvements, where the adjoining land or abutting lots may be assessed for the expense. A definite time is fixed by the board or tribunal ordering the improvement, within which the land or lot owner may perform the required work himself.

We therefore hold the ordinance in controversy invalid on account of the omission stated, and no lawful assessment could follow it. This court made a similar holding in 1895, in Logan county, in the case of C. C. C. & St. L. R. R. Co. v. The Village of DeGraff.

Layton & Stueve, for Plaintiff in error.

John T. Schoonover, for Defendant in error.

There is another observation to be made in this case, bt is not averred in the petition, nor is there any evidence in the record, to show what, if anything, ivas the expense to the village of placing and manufacturing the lights. If this was the only weakness of the case, we would reverse and remand it, with an opportunity to amend. But-there is a fatally defective ordinance at the bottom of all the proceedings.

The judgment of the lower court is reversed and its findings set aside; and rendering the proper judgment, the petition of the village is dismissed at its costs.

Day and Norris, J. J., concur.


text:
    (First Circuit, Hamilton Co., O., Circuit Court
    Jan. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    O. V. LIMERICK v. THE STATE OF OHIO.

      Juror --Opinion formed or expressed — Examination—What required—
    1. The manifest purpose and intent sec. 7278 of the statutes, in that part of it which explicitly requires the court, when a juror says that he has formed or expressed an opinion, to examine hinras to the grounds of his opinion, is, that the court might then ascertain how the juror reached his conclusion ; whether it was on mere rumor and hearsay and not founded on any substantial basis, orín some other way, and in such manner as would render it difficult for any man, however honest he might be, to lay aside the opinion before formed, particularly if the facts testified to before the jury, should substantially agree with what he had before heard and on which his opinion had been founded,and the effort of the court should be to have this clearly appear. And a limitation of the examination of the juror by counsel for defendant to ascertain the weight of his opinion, is improper.

      Evidence— Conversations of prosecuting witness with third parties.

    2. Testimony as to a conversation by telephone between the prosecuting witness and his agent, in the absence and without the knowledge of the defendant,are incompetent.

      Conspiracy — Evidence as to guilt of co-conspirator not admissible before proof tending to show conspiracy.—
    3. When a conspiracy is charged, it is error for the court, in the trial of one of the alleged conspirators, to admit testimony tending to show the guilt of the other (jointly indicted with the defendant on trial,) of the crime charged against both of them, and also conversations had by other persons with such alleged eo conspirator in the absence of the defendant on trial, without at all connecting him therewith, and before there was any proof tending to show any conspiracy between the two to carry out the alleged scheme.

      Order of testimony — Discretion of court — What required.—

    ■4. While the order in which testimony shall be introduced, must of necessity be largely in the discretion of the trial court, yet this should be a legal and proper discretion, and such course should be pursued as should not prejudice the rights of the parties. Evidence of the acts or declarations of persons alleged to be co-conspirators with the defendant on trial, can not properly be received against, him, until the judge is satisfied that, apart from them, there are prima facie grounds for believing in the existence of the conspiracy.

      Charge of crime committed — Proof of conspiracy to commit the crime not sufficient under said charge.—
    5. Where the charge in the indictment is not that the defendant entered into a conspiracy to commit the crime, but that the crime was in fact committed, proof that the defendant had entered into a conspiracy with one or more persons to commit the crime, . would not, of itself, justify his conviction under the indictment; there must be an actual accusation, and this must be proved by the state before the defendant could properly be convicted.
    Error to Court of Common Pleas of Hamilton county.
   Smith, J.

The first question which we will consider in this case is, whether the trial court.properly overruled the challenge for cause interposed by the defendant to Mr. Heidcamp, who was examined on his voir dire as to his competency as a juror therein, and who was accepted as such by the court, and sat in the trial of the case; and in refusing to allow him'to answer a question put to him by defendant’s counsel as to his competency. If the court did err as to its rulings as to these matters, or either of them, it must be deemed to be prejudicial to the rights of the defendant below, for at that time he bad exhausted his peremptory challenges, and he was thus compelled to accept this juror as one of his triers. If he was not an impartial juror, the constitutional and statutory rights of the defendant have been infringed by this action of the court.

Sec. 7278, Rev. Stats., provides as to what shall be good cause for challenge to any person called as a juror on any indictment. One of those grounds is:

“That he has formed or expressed an opinion as to the guilt or innocence of the accused; but if a juror has formed or expressed an opinion thereon, the court shall thereupon proceed to examine such juror on oath, as to the grounds of such opinion,and if such juror shall say that he believes he can render an impartial verdict notwithstanding such opinion, and if the court is satisfied that such juror will render an impartial verdict on the evidence, he may admit him as competent to serve in such case as a juror.”

It is apparent from this language, that if a person called as a juror has formed or expressed an opinion as to the guilt or innocence of the accused, he is incompetent to sit on such trial, unless the other requirements of the statute are complied with, and if on an examination by the court, (or in its hearing by counsel, which we suppose is equivalent thereto), as to the grounds of his opinion, he,the juror, is able to say that he believes he will be able to render an impartial verdict, notwithstanding his present opinion, and convinces the court of that fact, he may be competent.

In the case at bar, Heidcamp was asked if he remembered reading of this case in March last,and answered that he did. He was then inquired of by the Prosecuting Attorney,“from what you then read,did youthen form or express an opinion as to the guilt or innocence of the defendant Limerick;” and he answered that tie did, and still had that opinion. Thereupon the court put this question to him: “Notwithstanding that opinion,if you were accepted as a juror, would you'render a fair and impartial verdict according to the law and the evidence?” And he answered, “Yes, sir.” The court then asked this question: “Would you set aside any predelictions you had one way or the other, and rely upon the "'testimony of the witnesses adduced in this trial only, and the charge of the court as you heard it, and render your verdict upon both, and upon them only?” The answer to this was, “I have my mind fixed.” The court then put this question: — “I say, would you put aside any opinion or any notion that you now have concerning the case, and according to your, oath and obligations as a naan, would you determine this case according to the testimony of the witnesses, and according to the law as I should give it to you?” The answer was, “Yes, sir.”

Thereupon the examination was resumed by Mr. Darby. Up to this time, there had been no statement by the witness that he believed that he could render an impartial verdict in the case notwithstanding his present opinion, but in answer to che Prosecuting Attorney, he substantially does so. On cross-examination by counsel for the defendant, be again testifies that he "had at that time an opinion as to the guilt or innocence of the defendant,and he was then asked,“How much evidence would it take on the part of the State, or on the part of the defense, to remove that opinion, and leave your mind a blank upon the question whether he is guilty or innocent?” This was objected to by the counsel for the State, and the objection was sustained, and counsel for defendant excepted. After some other questions the answers to which were ‘not cleár and explicit, except to the point that he still has his opinion, he was asked, “At what time during the progress of the trial will you throw that opinion to one side, and become an unprejudicial and unbiased juror?” His answer was, “I will hear both sides,and then I will render my thoughts.” Question: — '“You mean that you will carry the opinion with you until you have heard the evidence on both sides?” Answer:- — -“Yes, sir.” — He was then challenged for cause, and the court put this additional question to him: — “If you were sworn in this case as a juror, would you at the time you were sworn, put aside any opinion you have, and after being sworn, rely upon the testimony and the charge of the court in making up your verdict?” Answer: — “ Yes, your Honor.” The challenge was thereupon overruled, and counsel for defendant excepted.

From what has been stated, (and we have given the materia] questions and answers), it will be seen that there was no attempt whatever, either upon the part of the court or of counsel, to ascertain the grounds of the opinion of the juror as to the question of the guilt or innocence of the defendant. He was asked by the counsel for the State, if he had read of the case last March, and he answered in the affirmative. This is the only allusion to the matter during the whole of the examination. For all that appeared, he might have had frequent conversations on the subject with the prosecuting witness, or other witnesses of the State, or the defer dant. He might have read what purported to be the sworn testimony. He may have had personal knowledge of many of the facts in the case, and his opinion formed in this way might be much more firmly rooted in bis mind than if formed simply from a casual remark of some one who did not profess to have personal knowledge of the case or some statement made in a newspaper, giving simply rumors or suspicions afloat in the public mind. It would seem that the manifest purpose and intent of the statute, in that part of it which explicitly requires the court, when a juror says that he has formed or expressed an opinion, to examine him as to the grounds of his opinion was, that the court might then ascertain how it was that the juror reached his conclusion- — whether it was on mere rumor and hearsay, and not founded on any substantial basis, or in some other way, and in such manner as would render it difficult for any man, however honest he might be, to lay aside the opinion before formed, particularly if the facts testified to before the jury, should substantially agree with what be had before heard, and on which his opinion had been founded. In this case, too, the juror testified that he had expressed an opinion. How often,and how positively and under what circumstances? These are certainly most material matters in tie consideration of the question as to whether the man will be or can be an impartial juror. But none of these matters are referred to, notwithstanding the explicit direction of the statute. Under the circumstances of the case, and the admitted fact that this juror had an opinion as to the guilt or innocence of the defendant, and the very great doubt which arises on his own statement, meager as it is, whether he could hear the case impartially, we are of the opinion that the action of the trial court in overruling the challenge, was erroneous and prejudicial. Instead, too,of limiting the examination of the juror by counsel for the defendant, as was done in his effort to ascertain the weight of this opinion (not perhaps in a very satisfactory manner), the effort of the court should have been to have this clearly appear, and that thus the case should have been submitted to the decision of twelve men, impartial as between the parties. The importance of this is so clearly and forcibly stated by Judge Mcllvain, in his opinion in the case of Palmer v. The State, 42 Ohio St., 596, that we only need to refer to it, and we see nothing in the case of Goins v. The State, 46 Ohio St., 457, that conflicts with it. See also McCarthy v. The State, 5 C. C. 630.

It is urged that the court erred in admitting in evidence, over the objection and exception of the counsel for defendant, testimony as to a conversation by telephone between Mr. Frazer, the prosecuting witness in this case, and his agent, or the agent of the company which he represented, Mr. Crocker. This conversation was to the effect that Crocker had said to Frazer over the telephone, in the absence of Prendergast and Limerick, (who were jointly indicted, though only the latter was on trial), that he was afraid that he was going to be arrested; that there was some trouble found with the tablets; that they were found short, and that he wanted Mr. Frazer to come to Cincinnati to protect him; that Dr. Prendergast had told him that something was the matter with the tablets,and that he (Crocker) was to be arrested.

We see no ground whatever upon which such evidence was admissible as against Limerick. On the overruling of the motion made by defendant’s counsel to exclude it, the court said: — “On the understanding that it is to be supplemented with other testimony that a conspiracy existed that will make it competent, I will overrule the motion; otherwise, if it is not made competent by subsequent testimony, the motion will at the proper time be granted.” But suppose that there should be evidence afterwards introduced, which, in the opinion of the court, showed some conspiracy between Prendergast and Limerick to black-mail this prosecuting witness,how would that make a conversation between Frazer and some one else in the absence of Limerick or Prendergast, and without their knowledge, admissible against either? It was wholly incompetent. It is claimed by counsel for the State, that it was wholly immaterial,and therefore not prejudicial — ■ but if so, why urge its admission? But we think it was offering proof as to a material matter — the statement of Dr. Prendergast as to one of the facts involved in the case, and therefore prejudicial. Even if the conspiracy were shown by other valid evidence, this statement was not competent even against Prendergast had he been on trial, and even less so as to Limerick, if such could be the case — and, as wo understand, this evidence was never overruled by the court, but was allowed to stand.

It is further urged by the counsel for the plaintiff in error, that the trial court erred in the admission of testimony tending to show the guilt of Dr. Prendergast (jointly indicted with Limerick) of the crime charged against both of them, not only by proving the facts in the case, but by proof of many conversations had by other persons with Prendergast, in the absence of Limerick, and without at all connecting him therewith. That all such evidence was admitted by the court without any suggestion upon the part of the counsel for the State, that it was the claim of the State that there-was a-conspiracy between Prendergast and Limerick to commit this offense, or that it was the purpose of the State to show this, and therefore to show that what was said by one of the conspirators in the execution of the common scheme and purpose, was competent evidence against the other. There is no question from the record but that such was the fact— that is, that such conversations of different persons with Prendergast were allowed to be given toa very great extent, before there was any proof tending to show any conspiracy between him and Limerick to carry out the alleged scheme, and this over and against the objecticn and exception of counsel for defendant, and so far as the record discloses, without any assurance on the part of counsel fo.r the State that proof of the conspiracy would be supplied. Witho-ul such additional proof, it was clearly incompetent to admit such evidence. But it is claimed by the State that it was afterwards introduced,and that it thus became entirely competent; and it is perhaps true that such additional evidence was offered by the State, which,if it had been first introduced, would have justified the court in holding that a prima facie case of conspiracy between the two had been made, and in submitting the question to the jury, under appropriate instructions,as to whether such conspiracy had been proved to their satisfaction; and if so, that the evidence as to the conversations with, and the declarations of Prendergast, could properly be considered by them in this case.

But it is urged by the counsel for the defendant, that un■til this conspiracy was thus shown, the other evidence should not have been received,particularly so without any assurance on the part of counsel for the State, that the evidence of ■conspiracy would be introduced. The question thus raised, is an interesting and important one, and as to which it is probable that the authorities are somewhat in conflict. It ■must be conceded that the order in which testimony shall be introduced, must of necessity be largely in the discretion ■of the trial court. But this should be a legal and proper ■discretion, and such course should be pursued as should not prejudice the rights of the parties. It is clear that it would be most unjust to the rights of a defendant on trial for a .grave offense, to allow evidence of the guilt of other parties to be shown without some evidence to connect him with such ■parties, or make him responsible in some way for their con■duct,and great care should be exercised by the court in this regard. So far as we can see from our necessarily hasty examination of this question, the language used by courts in passing upon this question, is to the effect that “acts or declarations of a conspirator may, after sufficient proof of conspiracy, be given in evidence to charge his fellow conspirator. ” Patton v. The State, 6 Ohio, 467; Clawson v. The State, 14 Ohio St., 234; Roberts v. Briscoe, 1 C. C., 578; while in Goins v. The State, 46 Ohio St., 457, 463, it is said by Judge Bradbury, that “much latitude is necessarily left to the trial court in determining whether or not, there has been introduced sufficient prima facie proof of a conspiracy, to admit evidence of the acts and declarations of one ■claimed to be a co-conspirator with the defendant on trial;” yet there is no suggestion that the former holdings of the •supreme court referred to are not correct.

Such also seems to be the clear holding of the writers on the law of evidence. In 1st Greenleaf, sec. Ill, under the heading of “declarations of conspirators,” it is said: “The same principles apply to the acts and declarations of one of a company of conspirators, in regard to the common design as affecting his fellows. Here a foundation must first be laid by proof sufficient in the opinion of the judge to establish, prima facie, the fact of conspiracy between the parties, or proper to be laid before the jury as tending to establish such fact.” In 1st Wharton on Evidence, sec. 1205, the author says: “The least degree of concert or collusion between parties to an illegal transaction, makes the act of one the act of all. But the conspiracy must be first shown.” And Stephen in his Digest of the Law of Evidence, art. 4, with his usual clearness, states the law thus:

“When two or more persons conspire together to commit, any offense or actionable wrong, everything said, done, or written by any one of them in the execution or furtherance of their common purpose, is deemed to be so said, done or written by every one, and is a relevant fact as against each of them. * * * “Evidence of acts relevant under this article, may not be given until the judge is satisfied that, apart from them,there are prima facie grounds for believing in the existence of the conspiracy.”

As has been suggested, authorities may be found which to some degree would limit this doctrine of the law, or hold that while it is the better practice that such evidence should not be allowed in the first instance,yet,if the evidence after-wards introduced, and the whole evidence in the case,shows the conspiracy, the mistake in admitting it would be immaterial and not prejudicial. To this effect is 17 Kansas, 298; and some seeming sanction to the practice adopted in this case, is found for extreme cases in 122 111., page 8. But we are of the opinion that the great weight of authority is for the rule adopted in our own state,and that evidence of the acts or declarations of persons alleged to be co-conspirators with the defendant on trial, can not properly be received against him,“until the judge is satisfied that,apart from them, there are prima facie grounds for believing in the existence of the conspiracy.”

Exceptions were taken by the counsel for the defendant, to the charge of the court to the jury. The court,after stating the substance of the indictment against Pendergast and Limerick, and that Limerick alone was on trial, said:

“In order to find the defendant guilty,you must be satisfied beyond a reasonable doubt, that on or about the 13th of March, 1897,in the county of Hamilton,and state of Ohio,the defendant unlawfully and knowingly, did verbally accuse Horatio N. Frazer of a crime, punishable by the law of the state of Ohio; that is,the crime of selling within said county of Hamilton and state of Ohio, a certain drug, to-wit: medical tablets, the strength of which medical tablets fell below the professed standard under which they were then and there sold, and he did this with the intent to extort money from the said Horatio N. Frazer.” * * *.
“There are three ways in which the defendant, O. N. Limerick, can be guilty of unlawfully and knowingly, verbally accusing Horatio N. Frazer of a crime punishable by the laws of the state of Ohio, for the purpose of extorting money or other things of value from him, the said Horatio N. Frazer, provided the testimony shows one or the other of them.
“First — By O. V. Limmerick himself, accusing Horatio N. Frazer of a crime punishable by the laws of the state of Ohio, for the purpose of extorting money or other thing of value from him.
“Second — ■ By entering into a conspiracy with one or more persons to verbally accuse Horatio N, Frazer of a crime punishable by the law of the state of Ohio, for the purpose of extorting from him, the said Horace N. Frazer,money or other thing of value.
“Third — By aiding and abetting him to verbally accuse Horatio N. Frazer of a crime punishable by ihe laws of the state of Ohio, for the purpose of extorting money or other thing of value from the said Horatio N. Frazer.”

It is evident from this statement of the trial judge, that he was stating to the jury three different hypotheses, either of which,if shown to the satisfaction of the jury, should result in the conviction of this defendant,and to the statement •of the second and third of those hypotheses, the counsel for the defendant at the time excepted.

It may be stated here, that in each of these three statements to the jury, there is no reference to the particular •charge or accusation which the indictment avers was threatened to be made against the said Frazer, and the same is •true as to all other places in the indictment where this charge ■is spoken of,except in the paragraph hereinbefore first quoted in full, where it is referred to in the language of the indictment. In all the other places,it is stated that if the accusation was,that if he had accused Frazer,or had entered into a conspiracy to accuse him of a crime, (that is, any crime), punishable by the laws of the state of Ohio, he might be committed under this indictment. This can not be so — the evidence must conform to the indictment, and the court should have specified that crime charged in the indictment as the •one of which Frazer was accused. But we think, the second of these statements was radically wrong in another respect. Proof that the defendant Limerick had entered into a conspiracy with one or more persons, to verbally accuse Frazer of •a crime, for the purpose of extorting money from him, would not'of itself justify his conviction under the indictment; something more than this was essential — there must be an actual accusation. This was alleged in the indictment, and must be proved by the State before the defendant could prop•erly be convicted. The charge is not that he entered into a •conspiracy to do it, but that it was in fact done., The defendant might have entered into such a conspiracy, but before anything was done to carry it out, have wholly with■drawn from it,and taken no step in the execution of the conspiracy. Surely, there was a locus penitentiae for him, if he choose to avail himself of it.

We think the exception taken to the third statement of the court on the subject of aiding and abetting, is not well ■taken. It was held in Hanoff v. The State, 37 Ohio St., 179, that "sec. 0804, Kev. Stat., authorizes the prosecution, as well as the punishment of aiders and abetters, as principal offenders. Hence, one indieted as a principal may be, convicted on proof that he was an aider and abetter.”

Michie & Glare, Attorneys for Plaintiff in Error.

Prosecutiny Attorney, for Defendant in Error.

Other questions were presented in the argument of the, case, but in our opinion, it is unnecessary that we should, discuss or allude to them.

For the reasons stated, the judgment will be reversed,and the cause remanded to the court of common pleas for further proceedings.


author: Hale, J.

text:
    (Eighth Circuit — Lorain Co., Ohio. Circuit Court
    May Term, 1897.)
    Before Hale, Marvin and Caldwell, JJ.
    THE ELYRIA GAS & WATER COMPANY v. THE CITY OF ELYRIA et al.

      Suit by tax-payer to enjoin mis-appropriation of municipal funds-—Only maintainable for public rights—

    Generally a tax-payer is only authorized to bring an action to enjoin the city from an alleged misapplication of funds, under sec. 1778, Rev. Stats., to enforce public rights; such action can noi be maintained to enforce private rights of the tax-payer.

      Resolution declaring it necessary to build water works not one of permanent nature and not subject to sec. 1694 Rev. St.—

    A resolution by thecitv council declaring it necessary to build waterworks for such city’, is not a resolution of a general and permanent nature, and is not subject to the provisions of sec. 1691, requiring by-laws, resolutions and ordinances of a general and permanent nature, including those for the issue of bonds, shall be-fully and distinctly read on three different days, unless three-fourths of the members elected dispense with the rule.

      Indefiniteness of amount of bonds to be issued — What sufficient—
    Such resolution stating the amount of bonds to be issued for the payment of building water-works, “not to exceed $250,00.00,” is not. so indefinite as to invalidate the resolution.

      Same — Resolution stating double purpose—

    Such resolution stating that the bonds shall be issued “for the erection and purchase of water-works,” does not state such a double purpose as to invalidate proceeding.

      Variance in stating purpose of bonds in resolution, proclamation and ordinance—
    The resolution stating “for the erection and purchase” of waterworks, the proclamation by the mayor designating the purpose “for the erection of water-works/’ and the ordinance stating “for the erection or construction of water-works, ” is not such a variance as will invalidate the proceeding.
    Appeal from the Court of Common Pleas of Lorain county.
   Hale, J.

The case of The Elyria Gas & Water Company v. The City of Elyria comes into this court by appeal, and has been ■submitted upon an agreed statement of facts. The case has been prepared with more than usual care by the attorneys upon both sides. The city had, prior to the commencement of this action, taken certain preliminary steps towards the erection of water works to supply the city and its inhabitants with water, and was proceeding in the execution of the plan proposed when this action was commenced.

The plaintiff is a corporation, having its principal place of business in this city, and therefore a resident of the city, and a tax-payer. It requested the corporation counsel or ■solicitor of the city to bring an action to enjoin the city from proceeding further with that enterprise, on the ground that, to do so,was an abuse of corporate power; that the city was proceeding illegally in the execution of that enterprise.

It is objected, first, that the case made does not fall within the statute authorizing a tax payer, on the refusal of the •solicitor, to bring the action. It is somewhat doubtful whether this action is properly maintainable by this plaintiff.

■ Generally, if the action is to enforce the private rights ■of the corporation bringing the action, it could not be maintained.

It is only to enforce a public right that this action can be sustained.

There are certain allegations in the petition, and certain facts that transpired on the hearing, that certainly could not but raise a query in the minds of the court whether,in fact, the real object of the action was not to enforce some private rights of the plaintiff.

It will be conceded that by the statute of the state, ample authority is given to the city council or to a municipality to construct and maintain water-works for the purpose of supplying a city and its inhabitants with water. I suppose it will be further conceded that, except for the limitation contained in the statute, the power conferred upon the municipality is ample to enable it to construct water-works without a vote of the electors of the corporation, if there is money in the treasury subject to an appropriation for that purpose.

But it might defeat an enterprise of this kind to delay the commencement of the work until the money needed could be raised by taxation. That is, to get the money into the treasury by taxation before going forward with the construction, would necessitate a delay that would be entirely unreasonable.

The limitation to which I refer, is contained in sec. 2702, of the Revised Statutes, which provides that no contract, agreement or other obligation involving the expenditure of money, shall be entered into, nor shall any ordinance, resolution or order, for the appropriation or expenditure of money, be passed by the councilor by any board or officer of a municipal corporation, unless the auditor of the corporation, and if there is not an auditor, the clerk thereof, shall first certify that the money required for the contract, agreement or other obligation, or to pay the appropriation or-expenditure, is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose, which certificate shall be filed and immediately recorded. It will be seen that the corporation could not go forward with this work until the money was* in the treasury to pay the contracts that must be made to carry out the enterprise.

To enable the city to go forward with the work, the-legislature has conferred upon the municipality, with certain-restrictions, the power to issue and sell the bonds and put the money into the treasury.

The mode to be pursued in the issuing and selling of these bonds, is quite clearly defined by statute. Section-2835 of the Revised Statutes provides, in substance, that the trustees of any township or hamlet, or the council of any municipal corporation, may issue and sell their bonds-in amount and denominations such as they may deem necessary for the special purpose in view, whenever it is desired by the voters of such township or municipal corporation to make any of the following improvements, or to provide for any of the following purposes, and among those enumerated,, for erecting or purchasing water-works and supplying water to the township or corporation and the inhabitants thereof.

Sec. 2837 then provides for the steps to be taken in provding for the issue of bonds. Before any bonds are issued or tax levied, as provided in the next two preceding sections-the question of issuing the bonds shall be submitted to the voters of the township or municipal corporation at a general or special election. And whenever the trustees of any township, or hamlet, or the council of any municipal corporation shall by resolution declare it necessary to issue and sell the bonds of such township, hamlet, or municipal corporation, as the case may be, for any or either of the purposes mentioned in Sec. 2835 of the Revised Statutes, ire any amount specified in such resolution, and shall, by such-resolution, fix a date upon which the question of issuing and selling such bonds shall be submitted to the electors of such township, hamlet, or municipality, and shall cause a copy of such resoluton to be certified to the deputy state supervisor of the county in which such township, hamlet, or municipal corporation is situated, or board of election in such cities as have such boards, (and) such deputy state supervisor, or board of election, shall, within ten days thereafter, proceed to’prepare the ballots. The details of submitting that question to the electors are provided for.

On the 6th day of March, 1896, the council of the city of Elyria passed, or attempted to pass, this resolution:

“A resolution declaring it necessary to issue bonds for the erection and purchase of water-works for the supplynig of water to the inhabitants of the city of Elyria. Beit resolved by the council of the city of Elyria, Ohio, that it is necessary to issue and sell the bonds of the said city in a sum not to' exceed $250,000.00,for the purpose of the purchase and erection of water-works for the supplying of water to the inhabitants of the city of Elyria, Ohio. And that the question of issuing and selling the bonds of said city, what amount, &c., thereby be submitted to the electors of said city at a general election to be held in said city on the 6th day of April, 1896, and that the mayor be directed to give notice of the holding of such election in the manner provided by law.
“The Clerk is hereby authorized to transmit a certified copy of this resolution to the board of deputy state supervisors of elections of Lorain county.”

At the time that resolution was passed the council was composed of eight members; there was one vacancy. At this meeting there was an attendance of six members, one of the seven being absent. Of those present, four voted in favor of its adoption, and two against it, and the jesolution was declared adopted.

It is objected, first, that the resolution is of a permanent and general nature; that it should have been read before its final adoption,-at three separate meetings of the council, and, because it is not so read, is entirely void; and being; necessary to validate this proceeding,that the whole must fall..

By Revised Statutes, sec. 1694, it is provided:

“By-laws, resolutions and ordinances of a general and permanent nature, shall be fully and distinctly read on three different days, unless three-fourths of the members elected dispense with the rule.

There have been some changes in that section of the statute. As originally passed it read as quoted above. On the 28th day of February, 1890, 87 Ohio Laws 36, it was amended to read,

“By-laws, resolutions and ordinances of a general and permanent nature,,including those for the issue of bonds, shall be fully and distinctly read on three different days, unless three-fourths of the members elected dispense with the rule, ”

On the 31st day of March, 1893, evidently overlooking, the fact that this section had been amended in 1890, the legislature of the state again amended the original section practically as if it had not been amended in 1890. So that it now stands as first read.

The objects of this resolution in these proceedings in general terms may be said to be two.

First: To declare the necessity of providing means to carry out the proposed improvement by the issue and sale of bonds. So far it is declaratory only of an existing need.

' The second object is to provide for the necessary steps to be taken in the submission of the subject to a vote of the electors of the municipality.

’’ The resolution does not, in terms, provide for the issue' of bonds, but declares the necessity for such an issue. And when authorized and sanctioned by the electors, the council may then, by proper legislation, provide for the issue and sale of the bonds.

It is apparent that the council, in its discretion, after the vote is taken, may discontinue the enterprise or go forward with it

It would be entirely competent, if deemed wise,. for the legislature of the state to authorize directly the city council to issue and sell bonds to meet the costs of improvements of íhe nature of this improvement, but it has seen fit to limit the power of the municipality by requiring the proposed issuing of bonds to be sustained by the vote of the people to whom it must be submitted.

We are dealing, then, as all concede, with a preliminary resolution, declaratory of the necessity of the improvement, and providing a mode of submitting to the people the question or proposition.

The case of Upington against Oviatt, 24 Ohio St. 232, is relied on as an authority sustaining the proposition that this is not a resolution of a general or permanent nature, requiring the formality for its passage claimed by the plaintiff. That case related to a street improvement,-and it was held that •a resolution declaring the necessity of such improvement was not a resolution of a permanent nature.

In the case of Campbell against Cincinnati, 40 Ohio St. 463, the court had under consideration the passage of an ■ordinance relating to the condemnation of private property bo public use, and not a preliminary resolution. In that ■case the supreme court held that the ordinance was of a .general and permanent nature. ■

It is said by council for plaintiff, that no distinction can be drawn between the rule applicable to ordinances and to resolutions. That is undoubtedly true if the object to be attained can be attained either by ordinance or resolution, and if the ordinance required the formality for its adoption, then the resolution would.

But a preliminary resolution declaring the necessity of the .condemnation of land, or property, for the use of the public, may not stand upon the same ground asan ordinance condemning private property for public use.

One may be permanent, and tlie other not, depending apon the object and the place it fills in the proceedings to be taken.

In view of the fact that this resolution is such as I have indicated, we are of the opinion that it is not a resolution requiring the formality for its adoption claimed by the plaintiff, and that, in the manner in which it was adopted, renders the resolution a legal inactment.

I want to say that this question is, perhaps, not entirely free from difficulty, but we feel reasonably satisfied with the conclusion reached.

It is objected that the amount of the bonds to be issued is not fixed by the resolution; that the language is “not to exceed $250,000.00.’’ It is said, that this is too indefinite; that the exact amount should be stated, and to provide for the issue of bonds, not to exceed $250,000.00, gives no authority to issue any bonds. There is very little authority upon this particular point. It is claimed that the case reported in the 27th Pa. St. 389, is in point. In substance that case was founded upon the statute of the state of Pennsylvania, authorizing municipalities to subscribe for the stock of a railroad, and the limitation in the statute was, that that subscription should be made only by the grand-jury which passed upon the subject, recommending the subscription and fixing the exact amount of the subscription. The grand-jury considering the subject authorized and recommended the commissioners to subscribe for the stock of the company to an amount not exceeding $150,000. Inasmuch as the commissioners had no authority to fix any amount, and inasmuch as the grand-jury was the only power that had-that authority, and had not done it, the supreme court held the proceedings to be invalid..

But we do not think that case is in point. In this case the council had charge of that enterprise, not as in the case in Pennsylvania.

There is a case reported in the 7th Circuit Court Rep. which I will refer to upon another branch of the case very soon.

A municipal corporation of Butler county, having water works within the corporation, determined that they would enlarge the plant, and connect with it an electric plant. A jpreliminary resolution was passed, declaring the necessity of enlarging the water-works and building an electric plant, and authorizing the issue of bonds not to exceed 115,000. These proceedings were sustained, no objection, however, was taken that the resolution was indefinite as to the amount, and the case is not for that reason of much weight. Still,a transaction of this kind was sanctioned by the court.

We think that the objection that the resolution and the proceedings did not definitely state the amounnt, is not well taken; that it does not invalidate the proceedings.

It is further claimed that the resolution states a double purpose for which the bonds were to be issued.

First: And the language of the resolution is, “For the erection and purchase of water-works.”

This presents a question of considerable difficulty,a fairly debatable question.

In the case reported in the 3rd Circuit Court Reports, 210, that court had before it the question of construction or purchasing gas wells in the municipal corporation. The language of the resolution was, “Issuing bonds for the purpose of purchasing or constructing gas wells.” The circuit court of that circuit, the first circuit, held, that resolution was invalid,and the proceédings founded upon it were illegal and void, for the reason that the resolution contained a double purpose.

In the 7th Circuit Court Reports,page 30,that same.court had before it the case to whch I have referred, where there were proceedings to enlarge the water-works it and, in connection therewith, construct an electric light plant.

In the resolution submitted providing for a . submission to the vote of the people the object specified, waB for the construction of or to increase the capacity of the waterworks and to construct in connection therewith an electric light plant.

That court, in considering the question, say, there is no express provision in the statute, and we see no implication therein that the council may not unite in the proposed improvement, two or more things so authorized by law, if they are so intimately connected as'in fact to form but one improvement, as the evidence shows it to be in the case under consideration.

It may be, although it is not stated in the opinion, that the change made in the statute has affected this question.

But here we have a city proposing to supply the city and the inhabitants with water, having a plant already in existance.

The form of the resolution was, “To purchase and construct,” evidently contemplating that the existing plant, if purchased, was insufficient. The one enterprise of supplying the city with water was contemplated, and we are not, after as careful consideration as we can give this subject, prepared to hold that these proceedings were illegal for this reason.

I do not stop to refer to, or comment upon many cases that have been cited outside of the state; I have not time to do it.

It is said that there is a variance between the reading of the resolution; the proclamation issued by the mayor submitting the proposition to the people and the ordinance passed after the vote of the people providing for the issue of these bonds.

The resolution,I have already stated, was for the erection and purchase; the proclamation designated the purpose for which the.bonds were to be issued, “For the erection of water-works. ” The ordinance, “For the erection or construction of water-works. ” I do not think these two words add any thing.

E. G. Johnson & W. H. Wells, attorneys_ for Plaintiff.

W. W. Boynton and Lee Stroup, attorneys for Defendant.

The difference in the reading of the resolution, proclamation and ordinance that I have stated, does not, in our judgment, invalidate the proceedings, and it seems to us it would be applying a very technical rule to this transaction to so hold.

Another objection is taken, and that is, that a part of this work is to be done outside of the city limits. Certainly we think this not well taken. Home discretion must be left in all this transaction to the city council. That is where the law has put it; there is where it must be left.

It is said further, the manner of the selling of the bonds is not in accordance with the statute; that we think also, is not well taken.

We have nothing to do with the policy of this enterprise. That is lodged in other hands.

The decree will be for the defendant, dismissing the plaintiff’s petition.