text:
    SEPARATE PROPER.TY AND LIFE ESTATE OF WIDOW.
    [Circuit Court of Lorain County.]
    Burt Moore et al v. Josephine Idlor et al.
    Decided, April 29, 1904.
    1. Where property is bequeathed ;to a widow by her husband for life, “with power and authority to sell, .transfer and assign the whole or any part thereof, if necessary, for her support, and she waives her right of dower and elects to take under the will, i.t is- not necessary that she exhaust her separate property or reach a condition of actual want before she can draw upon the corpus of the estaite.
    2. Under a provision of the will in this case the widow was given the privilege of disposing of a specified amount at her death, but the amount remaining to the estate at her death proved insufficient to permit of the carrying out of this provision, and the payment also of bequests made by the husband to children and grandchildren. Held: That the children and grandchildren take under a subsequent clause providing that the sum remaining be divided pro rata among them.
    3. The probate court has original and exclusive jurisdiction over an application for a first year’s allowance to a widow.

      4. A life tenant holds somewhat as a trustee, and the relation of •debtor and creditor does not exist between him and the remaindermen as such.
    5. The statute of limitations is not applicable to a continuing trust.
    Marvin, J. (orally); Hale, J., and Winch, J., concur.
    The case of Burt Moore, Emma Gorham and William Idlor against Josephine Idlor and others, comes into this court by appeal from the court of common pleas'.
   The facts are, that on May 15, 1878, Amandar Moore, a resident of Lorain county, Ohio, died testate, leaving a considerable estate. He left a widow, Charlotte Moore, who lived for about eighteen years after the death of her husband. The plaintiffs, Burt Moore, Emma Gorham and the defendant, Josephine Idlor, are the only children of said testator who survived him, and they together with the plaintiff William Idlor, who is his grandson, are the only beneficiaries under his will who have any interest in the subject-matter in this controversy.

The,first item of the will of said testator is as follows:

“Item 1. After all my lawful debts are paid, I give and devise unto my beloved wife, Charlotte Moore, my farm situated in Avon township, Lorain county, Ohio, in section eighteen, containing about twenty-five acres. I also give and devise unto her, two promissory notes, given to me by my brother Charles Moore, one for $1,200 and the other for $46 with all interest which may be due on them at the time of my decease, which noes are secured by mortgage on his home farm in Sheffield township, which mortgage I also give and devise to her. I also give and devise unto her two notes given to me by William Kramer, for $500 each, secured by mortgage, on part of lot No. 4 South Bass Island, Lake Erie, with the interest due thereon at my decease. Also one note given to me by M. R. Moore and Leonard Moore for $500 and the interest due thereon at my decease. All of the above property I give and devise to my said wife, Charlotte Moore, during the term of her natural life, with the power and authority- to sell, transfer and assign the whole or any part thereof, if necessary, for her support, and execute and deliver a deed or deeds in fee simple to.the purchaser or purchasers of said twenty-five acres in section eighteen, Avon. If, at the death of my said wife, and of said property, or enough thereof, remains undisposed of, I give and devise the same as follows: Two 'thousand dollars to be disposed of by my said wife by will or otherwise, absolutely as she may see fit; $1,000 to my daughter, Emma Gorham, now in California; $1,000 to my son, Burt Moore; $1,000 to my daughter, Josephine Idlor; $500 to my grandson, William Idlor.

“If at the decease of my said wife there should not remain undisposed of by her the sum of $3,500, then the same or what remains thereof is to be divided pro rata between my said daughters, Emma and Josephine, my son Burt, and grandson William Idlor, or to their heirs respectively. All of the above mentioned and described property, real and personal, devised to my said wife, is given and devised to her in lieu of her dower right in my estate. I also give and devise to my said wife, and of my household goods and furniture of every kind and description to be hers absolutely. ’ ’

Said widow elected to accept the provisions of this will. The executors of the said will in the settlement of the estate delivered to said Charlotte the personal property, except as hereinafter mentioned, which was bequeathed to her and took her receipt therefor; filed their accounts in the probate court claiming credit for the property so delivered to and receipted for by her, and their accounts were approved.

The exception as to delivering to her the property so bequeathed to her is, that instead of delivering to her the $500 note against M. R. Moore and Leonard Moore given to her by the terms of the will, they delivered to her in lieu of said note a United States government bond for $500. This is shown by her receipt therefor and by the accounts filed by the executors in the probate court. So that there came into the hands of said Charlotte from her husband’s personal estate notes given by Charles Moore amounting to $1,200; notes given by William Kramer amounting to $1,000; and the. United States government bond for $500. These notes were all secured by mortgage, and were all collected by her or for her; she had also the use of the twenty-five acres of land from the time of her husband’s death.

Mrs. Moore had property of her own, $8,000 or more, independent of her husband’s at the time of his death, which she continued to own until her death.

Charlotte Moore died testate in 1895; her will reads as follows :

“I, Charlotte Moore, declare the following' to be my will.

“Item 1. I give to Jay Idlor, of Put-in-Bay, and to Bertie Moore, of California, each the sum of $100.

“Item 2. All the balance of my estate real and personal I give and bequeath to Nettie Heeock, daughter of Isaac Heeock, deceased; Hattie Heeock, daughter of Sarah Woodruff, deceased; Kate Miller, daughter of Catherine Miller, deceased; Mary Day and Karl Day, widow and son respectively of Eugene I. Day, deceased, and to all of my nieces and nephews of my blood to share and share alike, save and except that said Mary Day and Karl Day shall together receive only an equal share with said other named parties who are to share and share alike as stated. I name Sumner Day as executor of this will. He shall have full power without order of court therefor to sell my real estate and deed to purchasers to make in fee simple. Pie need give no bond.”

The defendant, Sumner Day, duly qualified as executor of such will, and took possession of all the personal estate of which Charlotte Moore was possessed at her death, and proceeded to administer upon the same as her property. He also took possession of the twenty-five acre farm.

The only item of personal property which came into his possession in kind as it came from the estate of Amandar Moore was the $500 bond. It is true that the evidence is not such as to make it absolutely certain that the $500 United States government bond, which was in the possession of Charlotte at her death, was the $500 bond which she received from the executors of the will of Amandar Moore. Mr. Day thinks that she had this bond prior to her husband’s death; but it is certain that she received a $500 United States bond from the executors of the will of her husband, and as a part of his estate. It was said in argument — attention was called in argument to the fact — that the inventory filed by the executors of the will of Amandar Moore did not show such bond.' Schedule D, which was read to us, does not, but the inventory shows that there were United States bonds owned by him and a part of his estate, and the receipt of Charlotte to the executors of Amandar Moore show that in lieu of the $500 noté against M. R. Moore and Leonard Moore, she accepted a government bond which was not in terms bequeathed to her, So we find as a fact, that the bond which was in her possession at the time of her death was the same bond which came to her from the executors of the will oí Amandar Moore. No other personal property, which was by the will of Amandar Moore given to her was in her possession in kind at the time of her death. The notes against Kramer and against the other parties named, either were collected by or were collected for her.

There was some claim made that $1,000 collected upon these notes, two of them, never was paid to her, but the evidence did not show that. The notes were all secured by mortgage, and so far as we can determine from this evidence were all paid, so that she became possessed of the avails of these notes when she parted with them.

It is urged on behalf of the plaintiffs, that since by the terms of the will of Amandar Moore, the right to sell and dispose of the property which she took under the will of Amandar, could only be exercised in case it became necessary for her support, the language being: “All of the above property, I give and devise to my said wife Charlotte Moore, during the term of her natural life, with the power and authority to sell, transfer and assign the whole or any part thereof, if necessary, for her support. ’ ’ It is urged that because she had property of her own sufficient to have provided for her support — not necessarily the income of it, for it is shown that she was a considerable part of the time in such circumstances and in such state of health that she required assistance; but that in any event, whether the income of her own property, together with the income of the property left by Amandar Moore was sufficient for her support, she was bound to have used her own property, a part of it if necessary, for her support before she could avail herself of any part of the principal of the property left by Amandar.

In support of that we are cited to the ease of Hull v. Culver, 34 Conn., 403, and the language used in that opinion goes very far toward supporting the proposition urged here by the plaintiffs.

It should be said here, that the will executed by J;he wife and providing for the support of her surviving husband, provided ,in these words: “I give all my estate to my beloved husband, to use during his natural life, and if he should want for his support to sell any part or the whole of it for his maintenance, my will is that it shall be at his disposal.” The court held that the word “want”'meant “need;” and said that before he could make sale of that propety there must be an actual need; and in discussing that proposition the court used this language, page 405:

‘ ‘ The defendant however urges, certainly not without plausibility, that the husband was to be the sole judge of his necessity. But as we understand it, the contingency was to be his actual need and not his expectations or opiiiion of it. The authorities on this point seem to be conclusive.” Citing 1 Hilliard Real Prop., Chap. 57, Section 9, which wre have not examined; Minot v. Prescott, 14 Mass., 96; Stevens v. Winship, 18 Mass. (1 Pick.), 318, and Larned v. Bridge, 34 Mass. (17 Pick.), 339, which we have examined.

■Without stopping to read from those eases, the cases do not, it seems to us, support the proposition which they are here cited to support, if the proposition is to be taken as meaning that the husband must have been in danger of actual want from all sources before he could make a sale of any of the property which it was provided in the will of his wife he might make sale of if it became necessary for his support.

The other cases are where, by the language of the will it is clear, the support was to be out of the property bequeathed.

There is this difference also to be noted. As a proposition of law it is the business of the husband to support his wife; it is the business of the husband to make provisions for the support of his wife after his death, and if he fails to do it, the law. makes a provision for her.

It is true the law makes a provision for a surviving husband; but it is not in the same sense the business of the wife to provide for the support of the husband that it is the business of the husband to provide for the support of his wife.

The will which we are considering provides, in terms, that that which is bequeathed to the widow shall be in lieu of her dower. The inventory of the estate of Amandar Moore and the settlement of the account show that his was quite a large estate. If this widow had rejected this will, she would have received much more in value than she received under the provisions of the will, and she parted with a very valuable right when she consented to accept the provisions of this will. It would seem inequitable that she should be required before she could get anything more than the income óf the little twenty-five acre farm and of about $2,700 of personalty, she should exhaust all she had herself in her support, and we hold that that is not the law applicable in this case.

It is shown by the evidence that the necessities of this woman were such as to- make it reasonable to say that she required in addition to the income of her own separate property and the income from her husband’s, something out of the principal of this property. The evidence traces, as I have stated, no part of the personalty in kind, which was left by Amandar Moore, into the hands of the executor of the will of Charlotte Moore, nor into the hands of Charlotte Moore as remaining with her up to the time of her death, and we think it fair to say that she might very reasonably have expended in her support all of this personalty that was not still in her possession when she died, to-wit, the United States bond for $500.

It is further urged here on the part of the plaintiffs, that whatever property Charlotte left at the time of her death, that came to her from Amandar, is to go to the parties named in the first item of the will as remaindermen, as being entitled 1o the property, a life estate in which was granted to Charlotte Moore, and that no part of that could be disposed of, or in any event no part of it was disposed of by the will of Charlotte, and a somewhat troublesome question in this case is, whether Charlotte did dispose of any part of it by her will, and indeed whether she had any right to dispose of any part of it by her will.

The language is peculiar. It is easy to conceive of circumstances where the language of the will would not exactly dispose of all this property.

Having given to Charlotte a life estate in this property he says:

“If at the death of my said wife any of said property, or enough thereof,” enough for some purpose, “remains undisposed of, I give and devise the same as follows: Two thousand dollars to be disposed of by my said wife by will or otherwise absolutely as she may see fit.” If it was to remain with her up to her death, it is difficult to conceive of any way except by will that she could have disposed of it. But before she could dispose of it, as we construe this will, there must have been enough property to have not only — the wording is peculiar. “If at the death of my said wife, any of said property or enough thereof,” that is enough as we construe it to make the following bequests; if there is enough to do the things that I hereinafter speak of, she may dispose of $2,000 of it by will or otherwise, not necessarily by will. “Two thousand dollai’s of it to be disposed of by my said .wife by will or otherwise, absolutely as she may see fit; $1,000 to my daughter Emma Gorham, now in California; $1,000 to my son Burt Moore; $1,000 to my daughter Josephine Idlor; $500 to my grandson William Idlor.” Now, if there was $5,500 or more, he has provided for the disposition of $5,500. “If at the decease of my said .wife, there should not remain undisposed of by her the sum of $3,500 then the same or what remains thereof is to be divided pro rata between my said daughters Emma and'Josephine, my son Burt, and grandson, William Idlor, or to their heirs respectively.”

Now, as a matter of fact, there was less than $3,500 left of this property at the death of Charlotte. There was the land, which it is not claimed was worth that amount. It was stated to be worth about $1,400 by somebody, but no difference if it was worth $100 an acre, there being only the land and the bond, there was less than $3,500. There was not enough to make the disposition that he provided for, allowing Charlotte to dispose of $2,000. Now it is true, that here would be a curious situation if there had been $4,500. Whoever had the duty upon him to determine what this will meant, would have to read something into it to make it mean anything. But since that question isn’t, here we need not undertake to say what would be done, nor do we determine whether, if there had been $5,500 left, the residuary clause of the will of Charlotte would have been a disposition of $2,000 by her. That question is not here;' there was less than $3,500. That being true, we hold that the bond and the real estate go, under the will of Amandar Moore, to the plaintiffs and the defendant Josephine Idlor in the share of two-sevenths to each of the three children of the testator and one-seventh to the grandchild named.

C. W. Johnston and J. E. Leonard, for plaintiffs.

E. J. Johnson, H. C. Johnson and Lee Day, for defendants.

It appears in evidence, however, that the right of Josephine Idlor has been bought in by the executor, so that share will go to him as executor, whatever would otherwise have gone to Josephine. Two-sevenths to Day as executor, two-sevenths to Burt Moore, two-sevenths to Emma Gorham, and one-seventh to William Idlor.

Some other questions were discussed in the ease; one was, that no allowance was made to the widow, Charlotte, for her support for one year from the time of her husband’s death. No claim for such support seems ever to have been made; if it had been made, the court having original and exclusive jurisdiction in that matter has not been appealed to in this case, to-wit, the probate court, and we can not make any allowance for any support for the widow. It was urged on the part of the defendants here, that if these parties were entitled to anything, they were entitled as creditors and should have filed their claim for money with the executor. If they were claiming that Charlotte Moore in her lifetime was indebted to them, that would have been the way; but they make no claim that Charlotte Moore ever owed them anything; she did not owe them anything; she held some property in trust, she to have the use of it for her lifetime with a remainder over to these parties.

When Mr. Day became executor of her will that trust was forced upon him and he held this property in trust, and that trust has continued. No statute of limitations prevents plaintiffs from maintaining this action.

The decree may be that the real estate be sold, and of the net avails the disposition shall be made as indicated; that Day shall make disposition of the avails of this bond together with whatever accumulations there have been since the death of Charlotte oore, in the ratio already indicated. And the costs of this whole proceeding may come out of this property.


source: Caselaw Access Project

license: Public Domain

text:
    BENEFICIAL ASSOCIATIONS.
    [Circuit Court of Trumbull County.]
    The Supreme Court of the Independent Order of Foresters v. Christine Herlinger.
    Decided, February Term, 1905.

      Order of Foresters — Remedy within the Order for Payment of Benefit Certificate must he Exhausted — Finding of Jury as to Suicide— Error.

    Under the constitution, by-laws and regulations of the Independent Order -of Foresters, a beneficiary must exhaust her remedy in the tribunal's of the order for the payment of the death certificate before she can appeal to the civil courts.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Heard on error.
   The husband of the' defendant in error was a member of the Independent Order of Foresters and held a certificate of insurance for the sum of $1,000, payable to his wife. Upon his death this action was commenced to recover the' amount of the certificate.

Two questions made are:

First. That the decedent died by suicide.

Second. That the defendant should have exhausted her remedy in the order before she appealed to the civil courts.

As to the first, it is sufficient to say that the jury found that the husband did not die by suicide, and we are of opinion that the jury was fully justified in so finding.

The second question is one of more difficult solution. The Independent Order of Foresters, like kindred organizations of that character, was formed for the purpose of promoting the moral and social interests of its members, and also protecting them in cases of sickness; in death providing a fund to defray necessary expenses of burial and temporary provision by-insurance for dependents, the widow and children.

This organization in its insurance department is similar in all respects to beneficiary societies generally. The eonstitut-ion and by-laws provide for the manner of presenting claims for death benefits, and by these provisions the beneficiary would be bound, as she is presumed to know all the provisions of the constitution and by-laws and be bound by the same. Protective Home Circle v. Tisch, 1 C. C.—N. S., 185.

By these provisions it was her duty to make out a proof of loss including the medical certificate showing the manner and cause of death. This was to be presented to the local body known as the local court. It then became the duty of the local court to make out a statement of the facts and circumstances of death, and this statement, with the proofs of loss furnished by the beneficiary, must both be sent by the local court to the supreme secretary. This was done. It then became the duty of the supreme secretary to lay these papers before the supreme ranger, whose duty it was to allow or disallow the claim.

This was also done in this case, and the supreme chief ranger disallowed the claim for one thousand dollars for the reason that, in his opinion from the certificates, the insured member came to hs death by suicide; but did allow the claim to the amount of thirty-three dollars and thirty-four cents, the constitution providing that one-thirtieth of the claim should be allowed under such circumstances.

The supreme chief ranger sent his decision with a check or draft for $33.34 to the local court, with directions to carry the same to the beneficiary, leaving with her a copy of his decision, and the check or draft and take her receipt for the same. The local court sent a committee to the defendant in error with the papers and cheek, and she refused absolutely to receive the same or sign the receipt, and upon inquiry as to what she would do, said “she would do nothing; I have my lawyer and you will see him.”

The constitution, by-laws and regulations of the order provide that in ease of any complaint upon the part of any member or beneficiary, of the action of a court, local or supreme, or of any officer of the court or other officer of the order, that an appeal may be taken as therein provided, and specially provides that an appeal may be taken by a beneficiary from the decision, or action of the supreme chief ranger, to the supreme executive council' and from the supreme executive council to the supreme court of the order, which is the highest authority, ■and if the beneficiary is dissatisfied with the decision of the supreme court of the order, then the constitution further provides that in such ease the beneficiary may bring a suit,in the civil courts, provided she does so in six months.

Are these provisions conclusive of the rights of this beneficiary and preclude her from instituting and prosecuting her action! We think they are. The member, her husband, when he became a member of the order, promised that he would keep and perform and be bound by all the rules and regulations of the order, and the beneficiary occupies no better position than the member. Tisch v. Protective Home Circle, supra.

Why then should she not be bound by these provisions! They deprive her of no rights whatever.

In the case of Myers et al v. Jenkins, Admr., 63 O. S., 101, which was an action by annember against the order of Odd Fellows, it was held: ^

“When a member of such order claims to be entitled to sick benefits, he must seek his remedy, -in the first instance, in the lodge and the tribunals of the order, and the determination of the matter by such lodge and tribunals in substantial accordance with the laws of the order, will be final and conclusive of the right to receive such benefits.

“5. If the lodge refuses or neglects upon proper demand to have the right to such benefits determined in substantial accordance with the laws of the order, or refuses to pay such benefits after the same have been awarded to such member, then such member may sue in the civil courts for the recovery, of such benefits.

“6. Where, in a proceeding in a lodge in substantial accordance with its laws, it is determined that such member has no right to sick benefits, and the member appeals to the next higher tribunal in the order, and the lodge furnishes him a proper transcript of the proceedings, and he fails to secure a hearing of his appeal by reason of his own negligence, or by reason of the negligence of such higher tribunal or some officer thereof, such failure to secure a hearing on his appeal will not entitle him to sue the lodge for such benefits in the civil courts.

“7. A contract in advance to renounce and waive one’s right to appeal to the courts for the redress of wrongs, is void and of no effect.”

The opinion of Judge Burket, on pages 119 and 122, says:

“The claim of the lodge was, and it requested the court to so charge, that the claimant of benefits must seek his remedy in said tribunals of the order, and that their -determination was final, and that the civil courts had no jurisdiction of the matter. The eourt charged the jury that the claimant must in the first instance seek his remedy in the tribunals of the order, and wound up by the following:

“If that tribunal has been created, and has finally heard and determined this matter, that determination is conclusive upon the parties; but if, for any reason they have refused to hear and determine this matter in any of the various stages provided for its determination by the rules of the -order, then he may come into court and sue and ask the eourt to determine his right to recover; and if he has a right to-recover, he may recover it in the court.

“The next question is as to the charge as given, to which there was an exception. The lodge referred the dispute as to sick benefits to a committee of three as provided by the laws of the order, and .that • committee reported adversely to the claimant, and when he was present in the lodge and- no further notice to him required, the lodge acted upon the report and unanimously adopted it, and thereby determined that he was not entitled to sick benefits. This was conclusive against him unless he should succeed in changing the result by a proceeding in one of the higher tribunals of the order. lie gave notice of appeal, this seems to *be conceded by all. He says that he obtained a transcript from the secretary, while the secretary says he does not recollect of giving him a transcript and does not remember that he asked for or demanded one. There is no claim or pretense that "the lodge or the secretary refused to give him a transcript. The lodge, therefore, did all that the laws of the order required to enable the plaintiff to perfect his appeal and establish his rights to sick benefits before the grand committee. The fudge had a determination in its favor, and by giving him a transcript did all in its power, and ail the laws of the order required of it, to enable him to perfect his appeal; and if he thereafter failed in his appeal, it was his misfortune and not the fault of the lodge-; and the lodge could not be held in an action a.t law because he failed to secure a hearing before the grand committee on his appeal.”

Dickson & Clark and Charles Fillius, for plaintiff in error.

T, H. Gilmer, for defendant in error.

Then it is said:

“The court charged that ‘if for any reason they have refused to hear and determine this matter in any of the various stages provided for its determination by the rules of the order then he may come into court/ etc. This is too broad. The lodge was not responsible for what occurred in the various stages in the higher tribunals after it got beyond the lodge. The determination was against him in the lodge, and after the transcript was furnished to him by the lodge, the burden was thereafter on him to get rid of that determination, and if he failed in his appeal by reason of his own negligence or the negligence of others than the lodge, he can not hold the lodge responsible for such negligence, and can not make the same a basis of an action against the lodge. There was therefore error in the charge as given.”

And then the court held that no action can be taken in a court of justice until the beneficiary, or in this case, rather, the member, had exhausted his remedy by appeal in the lodge.

In this case defendant in error maue no effort to appeal her case to the supreme chief ranger. All that was required of her was to write a letter to him saying she appealed from his dech sion. No doubt even a mere statement to the committee that called upon her that she appealed from the decision of the supreme chief ranger, that her husband died by suicide would have been sufficient, but instead of that she refused to do anything, and her attorney commenced this action.

Under the constitution and by-laws of this order she particularly has no reason to complain, as after final decision by the order, it is specially provided that she may appeal to the courts of her country; whereas in many orders of this character, final decision of the order, where there was no fraud or undue means involved, would settle the matter.

What should we do with the case ? It is highly probable that we should render final judgment by dismissing the original action of plaintiff; but thinking possibly there may be some means by which the beneficiary may .correct the evident mistake she has made, we have concluded to remand it for a new trial. Judgment accordingly.


text:
    NATURALIZATION.
    [Circuit Court of Cuyahoga County.]
    The State of Ohio, on Relation of Harvey R. Keeler, v. Clarence J. Collister, and The State of Ohio, on Relation of Harvey R. Keeler, v. Caesar Collister.
    Decided, February 9, 1905.

      Office and Officer — Jurisdiction—As to Qualifications for Office of Councilman — Naturalisation—Declaration of Intention — The Required Oath — Quo Warranto.

    1. A court has jurisdiction to determine the right of a councilman to hold the office to which he has been elected.
    2. One foreign born, who appeared before a court of record prior to reaching the age of twenty-one years and made oath that it was his hona fide intention to become a citizen of the United States, and to renounce forever all allegience or fidelity to any foreign prince, potentate, state or sovereign whatsoever, and particularly to Victoria, Queen of Great Britain, whose subject he then was, did not thereby become a citizen of the United States or entitled to the privileges of an elector upon attaining his majority; and where such an one has been elected to the office of councilman and has taken his seat, a judgment of ouster will be entered against him.
    Marvin, J.; Winch, J., and Voorhees, J., concur.
    Quo warranto.
   Each of these eases is a proceeding in quo warranto, brought on relation of the prosecuting attorney of Cuyahoga county.

The case against Caesar Collister sets out that the defendant is a resident of the village of South Brooklyn, Cuyahoga County, Ohio; that on the 6th day of April, 1903, at a general election held in said village, the said Caesar .Collister received the largest number of votes cast for the office of village marshal and was declared to be duly elected to that office; and ’that on the 4th day of May of said year he assumed the office of village marshal of said village, and still claims to hold such office and is in fact performing the duties thereof; that the entering upon the discharge of such duties, and the assuming to be marshal of said village is a usurpation on the part of defendant, and the prayer of the petition is that he be ousted from such office; that at the time of said election and at the time the defendant assumed to take possession of such office he had not the qualification required by law for such officer, in that he was not then and there an elector of said village; that he was born in the Kingdom of Great Britain, a British subject, and that he has never become a citizen of the United States by naturalization.

The petition against Clarence J. Collister represents that the defendant at the election already spoken of received the largest number of votes for the office of member of the village council for the village of Brooklyn and was declared to be elected to such office, and that, on the 4th of May, 1903, he assumed the duties of such office and has ever since claimed to be such officer and is in fact discharging the duties of a member of such council'; that he is a native of the Kingdom of Great Britain, born a British subject, and has never become a citizen of the United States, and the prayer as against him is that he be ousted from said office.

Neither of the defendants is eligible to the position which he assumes to occupy unless he is a citizen of the United States.

Section 1536-613, Revised Statutes, provides ias to the qualifications of member of the council that—

“Every member of council shall be an elector of the city,” etc.-

In Section 1536-996, Revised Statutes, it is provided that—

“Each officer of the corporation * * * shall be an elector within the corporation,” etc.

In Section 1536-984 it is provided that—

“A person who, at the time of an election for municipal offices, is an elector for county officers and resides in the ward, or corporation 'if there be no- wards, in which he offers his vote, is a qualified elector.”

Section 4 of Article XV of the Constitution of the state provides that—

“No person shall be elected or appointed to any office in this state unless he possess the qualification of an elector! ’ ’

Section 1 of Article V of the Constitution of the state provides that—

“Every (white) male citizen of the United States of the age of twenty-one years who shall have been a resident of the state one year preceding the election, and of the county, township or ward in which he resides such time as may be provided by law, shall have the qualifications of an elector and be entitled to vote at all elections.”

In the matter of Clarence J. Collister a question is raised as to whether a court of chancery has jurisdiction to determine the right of the defendant to hold the office which he claims.

It is urged on the part of the defendant that the council and the council alone can determine who is a member of that body, and this is based upon Section 1536-612, Revised Statutes, which reads:

“Council shall be the judge of the election and qualification of its members,” etc.

The question here presented was before the Supreme Court in the case of State of Ohio, ex rel, v. O’Brien et al, 47 O. S., 464. In that ease the question was as to whether certain persons were members of the council of the city of Springfield, the claim being made on the part of the defendants that they were members by virtue of an election, and that the council, and the council alone must determine whether they were properly members of the council. It was not a question of the contest of an election, where one person was claiming as against another person the right to hold the office, but whether there was any office to be filled to which the defendant had -been elected; but in discussing the question presented, Judge Williams, in an elaborate opinion, pointed out the distinction to be made between oases where there is a contest of one’s election who claims to hold' an office and where, for some reason, there was no authority for one’s election to the given office. Without stopping to read from this opinion, we think it clear that the court has jurisdiction in a case like the present to determine the right of the defendant to hold the office which he assumes to hold. Nobody is contesting his election, but the claim is that under the law he was not eligible to the office; that he was not a citizen of the United States, and that, therefore, whatever effect it might have upon the election of somebody else to the office it could not be held by the defendant. As to the case against Caesar Collister no such question of jurisdiction arises, and holding as we do that we have jurisdiction in the case of Clarence J. Collister, we proceed to consider the two cases together.

The facts are these: Caesar Collister was born on the Isle of Man within the Kingdom of Great Britain on the 2d day of June, 1850. In March, 1867, he came to the United States, his parents not coming with him, and settled-in West Virginia, where he remained until July, 1876. In 1868 he appeared before a court of record in West Virginia and made oath that it was bona fide his intention to become a citizen of the United States and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state- or sovereignty whatsoever and particularly to Victoria, queen of Great Britain, whose subject he then was. He received from the court a certificate of the making of this oath, a copy of which is in evidence. It will be noticed that at the time this oath was taken he was less than twenty-one years of age. Upon arriving at the age of twenty-one years he, in good faith, believing that he had done all that it was necessary to do in order to make him a citizen of the United States, voted at an election held for public offices, and continued so to do until 1876, when he returned to the Isle of Man, and there remained until 1889. He then returned to the United States, and has lived here ever since, coming to reside in Brooklyn, where he now resides, about nine years ago. Ever since his return to the United States, including his nine years’ residence at Brooklyn, he has voted as a legal citizen and has done so in good faith, believing that he was a citizen. While he was living in the Isle of Man after his return there in 1876, the defendant Clarence J. Collister, who is his son, was born there, he coming with his father to the United States in 1889. No claim is made, certainly none could be sustained, that the son is a citizen of the United States unless his father is such citizen, nothing ever having been done by him to secure naturalization — and we proceed to inquire whether' the father is a citizen.

It is provided by Section 2165 of the statutes of the United States (Bates’ Annotated Statutes, 4th Ed., Vol. 3, page 3770), as follows:

“An alien may be admitted to become a citizen of the United States in the following manner, and' not otherwise.

“He shall declare on oath, before a circuit or district court of the United States, or a district or Supreme Court of the territories, or a j;ourt of record of any of the states having common-law jurisdiction, and a seal and clerk, two years, at least, prior to his admission, that it is bona fide his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly, by name, to the prince, potentate, state, or sovereignty of which the alien may at the time be a citizen or subject.

“He shall, at the time of his application to be admitted, declare, on oath, before some one of the courts above specified, that he will support the Constitution of the United States, and that he absolutely and entirely renounces and adjures all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty, and, particularly, by name, to the prince, potentate, state, or sovereignty of which he was before a citizen or subject; which proceedings shall be recorded by the clerk of the court.

“It shall be made to appear to the satisfaction of the court admitting such alien that he has resided in the United States five years at least, and within the state or territory where such court is at the time held, one year at least; and that during that time he has behaved as a man of good moral character attached to the Constitution of the United States and well disposed to the good order and happiness of the same; but the oath of the applicant shall in no case be allowed to prove his residence. ’ ’

If Caesar Collister has ever been naturalized, he has been naturalized in some other way than provided in the statute hereinbefore quoted, notwithstanding the language of the statute that an alien may be naturalized in the manner provided by the statute, and not otherwise.

U is urged that the naturalization laws should be liberally construed, and that they have been so construed by the Supreme Court of the United States.

Attention is called to the case of Campbell v. Gordon and Wife, 6 Cranch (10 U. S.), 175. A question in that case was whether one Wm. Curry, a native of Scotland, had ever been naturalized under the laws of the United States. He claimed to have been so naturalized in the district court at Suffold, Virginia, October 14, 1795. The law in force at the time, with which he was required to comply, provided that he must declare on oath that he had resided two years at least in the United States, and at least one year in the state or territory in which the application was made, and that he renounced all allegiance and fidelity to every foreign prince, etc., and that he should prove to the satisfaction of the court that during his residence in the United States he had conducted himself as a man of good moral character, attached to the principles of the Constitution of the United States, etc. The record of the court showed that he had taken the prescribed oath and a certificate thereof was furnished to him. It did not show that he proved character and attachment to the principles of the Constitution, as required by the statute. An employe of the office of the clerk of the court testified that before such certificate as was issued to Curry was given, the court always required proof of character, etc., as required by the statute, and it was held that it would be presumed that such proof was made to the satisfaction of the court. Nothing further was held on this point, or which is applicable to this case.

The case of Stark v. Chesapeake Insurance Co., 7 Cranch (11 U. S.), 420, shows that John Philip Stark was a native of Great Britain; that he applied for naturalization and made the required oath, and that he was admitted to become a citizen. It did not show that he made any proof of character, but the court held that that would be presumed because of the order of the court that he was naturalized.

Spratt v. Spratt, 4 Peters, 493, simply holds that where the records of the court having jurisdiction to admit one to citizenship show that he was admitted to citizenship, it would be prp.snmp.rl that he produced the proper evidence in court to entitle him to citizenship.

No case has been found, and it is believed that no case can be found, in which it has been held that one may become a citizen without taking the oath provided for in the statute.

It will be noticed that in order that one be admitted a citizen he must take a different oath from that taken by the defendant, Caesar Collister. He having come to the United States before he was eighteen years of age, might, under the provision of the sixth subdivision of Section 2165 of the statutes of the United States, have omitted the oath which he did take and simply taken, after he had been here five years and made proper proof of that fact and of his character, etc., the oath in the second subdivision of the statute already quoted. That is, whether he came here at such a time as that he must take the oath which he did take, or not, it is expressly provided that—

“He shall, at the time of his application to be admitted, declare an oath before some one of the courts above specified that he will support the Constitution of the United States.” This oath he has not taken. “And that he absolutely and entirely renounces and adjures all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty.” This oath he has not taken, but simply has taken an oath that it was bona fide his intention to renounce such allegiance.

It is said that there is a distinction here without a difference as to this last obligation; that when one declares, on oath that in good faith he intends to renounce and abjure allegiance, etc., it is in fact an allegation that he does so abjure allegiance and fidelity. The statute, however, makes the distinction, but especially. does the statute require that before one can become a citizen he make oath that he will support the Constitution of the United States. Defendant never having taken such oath, he has never become a citizen of the United States. It is not simply a case of where the records failed to show all that was done, but a case where, as a matter of fact, the oath has never been taken. It is not because of the weakness of the evidence that this man has done what is required to be done by him to become .a citizen, bnt because of the conceded fact that these things have never been done by him.

Chas. B. Selzer, for relator.

Eerruish, Chapman & Eerruish, for defendant.

We were cited in argument to Morse’s Citizenship by Birth and by Naturalization, Appendix 228. We find nothing applicable to either of the oases here being considered, in this authority. We do find that where one is chosen to an office which, by reason of some disqualification existing at the time of the election he can not hold, but which disqualification can be and is removed before the term of office begins, may hold the office. This is held in State v. Murray, 28 Wis., 96, and other authorities cited, but we have no such case here.

It is true that both of these defendants have, since they assumed to- enter upon the duties of their respective offices, been naturalized as citizens, so that they are now eligible to office, but these disqualifications were not removed until many months after they assumed to act in the official positions which they claim the right to hold.

Believing as we do that both of these men have at all times acted in the utmost good faith in relation to their citizenship, and they having been selected by their neighbors for the positions to which they believed themselves entitled, it is matter of regret to the court that we are unable to find that they are entitled to hold the offices.; but, under the law, it is clear that neither of these men at the time of the election mentioned, or at the time when they assumed to enter upon the duties of their several offices, was a citizen of the United States, and that, therefore, neither was an elector of the village of Brooklyn.

The judgment of the court is, in each case, that the incumbent be ousted from the office which he assumes to hold.


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    ELECTROLYSIS.
    [Circuit Court of Montgomery County.]
    Dayton v. City Railway Co.
    Decided, December 22, 1904.

      Street Railways — Operation of by Single Tr-oTley System — Damage to Water Pipes from Electrolysis — Equity will not Compel a Change of System — But Injunction will Lie to Prevent Negligent Operation — Negligence of Other Companies not a Defense.

    1. A street railway company, operating a single trolley electric system under a franchise manifestly contemplating such a system, is liable for injury to the water pipes of the city from the return current only to the extent that its operation of the system has been negligent.
    2. A court of equity is not warranted in requiring a street railway company to change to another electric system, when there is sharp conflict in the evidence as to whether the system in use is a proper system.
    3. Where a number of electric railway companies are operating in the same municipality under the same system, each of which is responsible in part for the injury occurring to the city water pipes from electrolysis, such fact constitutes no defense for the company against whom an action on account of the injury is brought.
    4. An injunction will lie upon the petition of a municipality to restrain an electric railway company from operating its system in such a manner as to cause injury to its water pipes, from the escape of electricity into ithe ground.
    Sullivan, J.; Wilson, J., and Dustin, J., concur.
    Appeal from Montgomery Common Pleas Court.
   This cause was at a former term heard upon the transcript of the testimony taken in the court below and depositions taken upon the appeal.

Omitting the several averments of the petition admitted by the defendant, those controverted by the defendant, stated substantially, are as follows:

That the railway company has not furnished a metallic circuit for the return to the power house of the electricity having been used to propel its ears, and hence the current is thus left to return as best it can. It escapes from the rails to the earth, and a division of the current takes place, the water pipes of the city receiving a part.

That the railway company so imperfectly and inefficiently connected the rails of its tracks that the return current, in a number of places, leaves the rails, escapes; into the earth and to the water pipes of the city, and thence back to the earth or rails.

That at the points where the return current quits the water pipes, returning to the earth or to the rails, the pipes are decomposed, the metal of the pipe removed, and there is left simply the soft material of the chemical compound constituting the pipes. By this action the pipes in some instances have been perforated with holes, at other points split, and in some instances wholly ruined, and in every case weakened.

That the city has already been compelled to dig up and replace by new pipe, at a number of places', where the pipes have been destroyed or so weakened by the action of the return current as described as to render them unsafe and inefficient to carry the water, and especially under the pressure necessary in case of conflagration.

That the injury is still being done and will continue unless the railway company is required to adopt some way to prevent it, and hence is a constant menace to its own property and the lives and property of its citizens.

That points where this damage is being done and the extent of it are not accurately known to the city, and can not be known without digging up all of its pipes. Hitherto notice of the injury being done has been brought to the city by leaks from the breaks, and hence not until the damage in such instances was completed.

That the injury, if continued, will still be greater, and that it is within the power of the railway company to adopt methods for the return of the electric current after use that will wholly prevent its continuance.

That the city advised the railway company of the injuries done and of their continuance, and of the city’s inability to do anything to prevent them, and demanded of the railway company that it adopt methods known to it to prevent them; but the railway company has taken no steps and still neglects to adopt some method to prevent the injury being done; that the city is without an adequate remedy at law and therefore prays that a mandatory injunction may issue commanding the railroad company to adopt such methods as will wholly prevent the injuries to the water pipes of the city set forth in its petition.

The railway company in its answer sets forth two defenses:

First, it denies that the rails of its track are not perfectly connected or bonded, and avers that it has adopted and keeps in use the best known systems as they are invented. As to whether the decomposition of the water pipes takes place by the action of its return current, as averred in the petition, it has no knowledge, and therefore denies that it does. It denies that it can adopt any system to prevent such action of its return current without the concurrence of the city; denies that it knowingly or purposely uses the water pipes of the city for such purposes, or that the city has ever proposed any plan to remedy the evil.

The second defense sets: forth that it purchased the Dayton street railroad and Fifth street railroad in 1893, being two systems of street railway theretofore operated in said city by horse power, setting forth the grants to the respective companies, to be found in the several ordinances as set forth in this defense, also the ordinances extending the grants to these respective railway companies to use trolley, storage electric, or cable motor power, for the purpose of propelling its ears; that these several ordinances constituted the contract between the defendant and the city; that the defendant, having acquired by purchase both lines of railway in pursuance of the grants to said respective companies, in the year 1894 equipped its lines so as to operate with electricity, and since that time has operated its railway by what is known as the single overhead trolley; that the equipment of its road with this system was done under the supervision of the proper officials of the city, and all was done with the knowledge, acquiescence and approval pf the city authorities; that the essential part pf this system wag the use of the rails to carry the current back to the power house, and the only system in use in the United States, and at the time was regarded as the only practical system for the operation of electrical railways. It was more economical and much simpler than any other known system, less dangerous to employes, indorsed by the Supreme Court of the state, and had the approval of scientific and practical men throughout the country; and in the city of Dayton the street railway known as the White Line had been in operation under the same system theretofore for the period of seven years.

It is averred in this second defense, since the grants to the defendant and the equipment of its lines with the single trolley, the city has granted to other street railway companies the use of its streets to construct and operate street railways with the same system for the application of electricity as a motive power — nine in number — with power houses within-the city, the lines of which railways cross and intersect with those of the defendant and each other.

Its legal obligation to use reasonable care to prevent the electricity escaping from its rails to the water pipes of the city is admitted, but it avers it has exercised such care and diligence.

It is also averred that it proposed a method of protection and to remedy the claimed mischief to the city officials, but this proposition was declined, and none was ever proposed or suggested by the city. That the petition of the city does not inform the defendant what system the court should compel the defendant to adopt.

The defendant admits knowledge of the system of double trolley being in use in the cities of Cincinnati and New York, and the conduit system in the city of Washington, District of Columbia, but claims that the adoption of either system would not obviate the danger or protect the water pipes of the city, so long as the other street railways in the city mentioned operate with the single trolley. It claims that the conduit system is impracticable and that the double trolley would involve an outlay of a very large sum of money, in the reconstruction of its road, so as to receive such equipment, largely increase the operating expenses of its road, largely increase the danger to its employes, requiring the use of so large a number of additional wires as to greatly increase the difficulty of handling fires.

In this defense the railway com-pany avers that there are various methods by which the city can protect itself, and the danger can be entirely obviated if the city would act in concert with the defendant, which the defendant is willing to do. It knows of no way by its own action to prevent the electricity used by it from escaping, except to keep its tracks in good repair and properly bonded. It claims to have always done this and is ready always so to do. That in locating the tracks of the city railway, as well as its water pipes and connections, any effort to prevent the escape of the current would he entirely futile.

The defendant claims in this defense that the several ordinances constituting the contract between it and the city, and in pursuance thereof, the city through its officials supervised the construction of its road to be equipped and the equipment of its road with the single overhead trolley, the same being approved and acquiesced in by the city officials; and relying thereon, it expended large sums of money in the construction of its road to receive said equipment and in equipping the same therewith; that by the contract it had the right to the use of its-rails for a return current. The city not having repudited its contract, this court is without authority to compel the railway company to make any change in the construction and equipment of its road. It further avers that the city has not in any of its departments taken any action requiring the change, and the railway company would be without power to make any change without permission of the city, even though this court might make such an order.

In conclusion, it avers that as to so much of the plaintiff’s petition as prays that the railway company may he compelled to adopt some new system, this court is without jurisdiction, such action being legislative and not judicial.

The railway company, renewing its assurance that it is ready at all times to perform its whole duty under the contracts, between it and the city, prays that it may go hence without day and have its costs.

The city in its reply to the first defense denies all allegations therein contained, and for reply to the second defense denies that the single trolley system was in successful use in the city prior to the defendant’s operating its road by the single trolley so far as. affecting the property of the city was concerned; denies that'any of the grants were for single trolley; avers that the grants were general, to use animal, electrical or cable power, and, unless implied in this general grant, the defendant has no authority to use the single trolley; that in their general grants to the railway company the city did not intend nor did it authorize the railway company to use the single trolley or any other system that would damage the' property of the city or its citizens. The city avers that the railway company had known for six years that the single trolley system interfered with the water pipes; that the electricity escaping from the rails of its. tracks caused the injury of which the city complains, but continued the use of the system and refused to take any steps to prevent further damage. That the- railway company, at the time it equipped its road with the single trolley, knew that a portion of the current used by it would pass from the rails to the earth and return along the water pipes.

The city admits that there was a conference between its officials with the defendant and other street railway companies within the city; but avers that the defendant and the other companies only offered to make certain metallic connections between the water pipes and the power houses, and because such connections would not prevent injury to the water pipes of the city nor remove the mischief, the city decided not to have it done and at the same time urged and insisted that the defendant and the other companies should adopt and use the double trolley. That whilst believing that the double trolley would prevent the injury being done, yet the city would be satisfied with any other system that would render the pipes immune; that would not obstruct the streets nor do damage to the city’s property or that of its citizens; avers that at the time of filing the petition in this case suits were also instituted against the •other street railways in the city using the single trolley system.

It then avers that no action on part of the board of city affairs or the city council is necessary to authorize the suit brought; but that the officers of the city have not only requested but demanded of the defendant that the method of operating its road be so changed and modified that no further damage will result to the water pipes of the city, to its property, or to the property of its citizens; and upon failure to do so that suit be brought against defendant to compel it to comply with the grant and use electricity as a motive power in such a way as not to endanger the property of the city or its citizens. It then sets forth the necessity of water works for the protection of the city, property and -the lives of its citizens in all the streets occupied by the defendant; that the water pipes were in most of the streets before the railway of. the defendant was established and constructed, and avers that it is not possible for the defendant in the use of any bonds known to exist to prevent the current escaping from the rails to the earth and thence to the water pipes so long as defendant uses the single trolley system.

It then denies each and every allegation of the railway company’s second defense not specially admitted in the rep]y, and renews the prayer of its petition.

The railway company contends that the city could not appeal to the courts to give it relief by a change of system without first having by proper authorities passed proper ordinances ordering a change in the system with permission to the defendant to do the things necessary to accomplish a change.

If the change demanded was definitely specified in the ordinance and not complied with, then action could be brought to compel a change if the council had the power to order a change.

All the city did was to pass a resolution authorizing a suit to compel some system that would not damage the pipes. With nothing more the defendant contends that the court can not grant the relief for it without authority, in the absence of such legislation by the city to order a change, though a state of facts was shown that a change should be made. The defendant in asserting this proposition assumes that the city by this action is seeking a change in the contract between it and the city, whilst it is the contention of the city that the action is to require the railway company to carry out its contracts. The city admits that the grant to the railway company to use electricity as a motive power is general in its terms, no system being named, but under the grant the railway company was not given the right to use the underlying earth nor the use of the water pipes of the city as a part of the railway operations, and hence the suit is to prevent the railway company, under the grant to it, to use the property of the city in the operation of its railway and thereby injure and destroy the property, and, if a change to the double trolley ox some other system is necessary for that purpose, the court should order it done. That the demand of the city that the railway company adopt some system that will prevent the electric current on its return to the power house of the company, escaping to and using the water pipes of the city as a return path, is simply asking that it be required to comply with the implied terms of the grant, and not asking the court to exercise police powers and, hence, no legislation by the city is necessary for such action, as full authority is found in the statute authorizing it. The relief, if any the city may be entitled to, arises upon the proof in the case. The testimony, takes upon the issues between parties and presented here upon transcript and depositions, covers some three thousand pages of typewritten matter — too voluminous to be set out in detail in this opinion, and, therefore, we shall not attempt-to do more than make occasional reference to particular parts of it bearing directly upon facts we think proven by it.

At the time the defendant equipped its road, the single overhead trolley was thought to be, and so pronounced by persons experienced in> the use of electricity as a motive power for the operation of street railways, as compared at least with the double trolley, the more simple, less liable to disarrangement, much cheaper, less liable to accident in blockading cars and less dangerous to its employes, and the most approved. There was but one road in the United States operated by the double trolley. It was contemplated by the parties at the time that, in the application of the current as a motive power, poles and wires were to be used, as the grant specifies the kind of poles, the distance the same were to be set apart, and that the location of the same was to be decided by the city’s engineer.

It also provided how high above the surface of the streets the wires used to convey the current to the cars should be suspended. Therefore, it was contemplated that the equipment was to be a trolley system. Part of the process of equipment was to be under the supervision of the city’s engineer. The work proceeded and was of a character that necessarily required personal observation of the authorized officials of the city during its progress. The streets were torn up and their use by travelers necessarily at times interfered with, and the material necessary to the equipment of a single trolley placed upon the streets in plain view, and at the time, and, since the equipment of the defendant’s road, several other street railways within the city, under special grants of the city, have been equipped with, and are now operated by, the same system. The White Line began operating with the same system in 1888. In 1893 injury by electrolysis to lead service pipes was discovered. The testimony does not show that this injury was due to the system; in fact, it does not seem to have attracted much attention. •

In September, 1893, a representative of the water works was sent by the city to a convention of the American water works, held at the city of Milwaukee, where electrolysis to water pipes was discussed. Whether the discussion included observations made where single trolley systems were in use- the testimony does not show. If it did, this representative does not seem to have been impressed with any claims made that it would occur where such system was used or he failed to convince the water works board that electrolysis to the pipes was likely to occur; for, in the year 1894, the railway company, partly under the supervision of the city’s officials and under the observation of all, as above stated, equipped its road with that system.

These facts are fully established by the testimony and prove, as we think, that the grant was for the single overhead trolley.

The testimony shows that it was then known that a constituent part'of this system was the use of the ground circuit and that portions of the current are unavoidably diverted through whatever conductors are in proximity, having themselves grounded circuits, returning to the source in which it originated. What, if any, injury would result by electrolysis, or whether it would occur in any such proximate conductors, was not known by the parties. The testimony shows that a sufficient quantity of the current, on its return to the power house of the company, is diverted to the water pipes of the city to injure them and, in some instances, destroy them.

The lines of the defendant’s railway at several points within the city, cross steam roads and also street railways operated by electric motive power, also cross the Miami river at two different points, one on a bridge part wood and part iron, and the other on a bridge solely of iron. At other points they cross streets where hoist bridges are used, all these present serious difficulties to be overcome in providing for the return current. Some of 'the bridges will not permit the use of .the standard 'rail on account of the structure of the bridge being light. The unavoidable shaking of the bridges by the passage of the cars ' makes it impossible to perfectly bond the rails; and, at the intersections and crossing of other roads, the pounding of .the passing cars upon the intersecting joints makes it very difficult to maintain perfect connection at such points for the return current, and all these difficulties tend to increase the resistance of the rail path and facilitate a diversion of the current to other conductors.

The decided weight of the testimony in this case shows that the bonding of the entire road of the defendant is not only inadequate, but very poor, and very far below the present standard of the art, and, as we have already seen from testimony, :this to a very great extent raises the resistance of the rail path, facilitating a diversion of the current to proximate conductors and, where the water pipes of the city are in proximity to the rail, they receive a portion of the diverted current. It is undisputed that the l’eturn feeders in use at the bridges across the river at points already named are not sufficient to prevent a -diversion of the current at those points, and that the use of • ground plates for the return current has been wholly inefficient 'and has been'almost universally abandoned. It it is also undisputed, if these several omissions were supplied and the difficulties at the bridge and railway crossings would be overcome, much less of the current would be diverted from the rail path.

There is a sharp conflict in the testimony as to the amount of current sufficient to cause electrolysis. Upon this question the views of the experts are widely apart. This is true, even where the opinions are based upon the same facts and conditions.

If the construction of the company’s road is brought up to the present standard of the art, the best known appliances used and the road kept in repair and operated with reasonable care, no witness pretends to say that the mischief would not be obviated, except certain experts-who claim that the mischief will continue so long as the single trolley is used, admitting, however, that if the road was brought up and operated according to the present standard of the art, much of the mischief would be overcome. How much of the mischief is traceable to either they do not advise the court.

The first notice that electrolysis had occurred to any of the water pipes of the city was the water escaping from breaks in the pipes and coming to the surface in the street. It is likely to occur at any point where the pipe is potential to the rail.Where such points are and how far the injury may have progressed, unless a break has occurred, could be discovered only by digging up the pipes.

It must be conceded that the defendant has the right to a reasonable use of the power granted it by the city, and such use must be exercised with due care; but' it is not made clear how the court is to determine whether the railway has abused the franchise in the selection of the system adapted for the application of the electrical current, when the testimony offered shows that part of the mischief is due to the negligent construction and operation of the road; and how much is traceable to these causes the testimony fails to show.

In view of the fact that the expert witnesses differ as to the quantity of current sufficient to cause electrolysis, how can the court say that, after the construction of the road is up to the present standard of the art and it is operated with due care, the current then diverted, if any, to the water pipes of the city will cause electrolysis or constitute actual negligence on the part of the railway in the use of the single trolley ?

E. P. Matthews, City Solicitor, for plaintiff.

McMahon & McMahon, for defendant.

Under the grant to the defendant by the city to equip with the single trolley, in the use of that system the defendant would be liable only for actual negligence. In granting such right the city must be taken to have contemplated, and condoned by anticipation, any mischief arising from the reasonable use of such system. Telegraph Co. v. Baker, 2 Chan. Div., L. R. (1893), 186.

When a corporation is exercising delegated authority for the public benefit by the use of due care, no action will lie agáinst the corporation resulting from the proper exercise of the authority. Hudson River Tel. Co. v. Railway, 135 N. Y., 393 (32 N. E. Rep., 148).

The law authorizes the action of the city.

The case presented does not authorize the court to require defendant to'change to another system.

The faulty construction of the defendant’s road and negligent operation of the same result in a continual damage to the water pipes of the city for which it has no adequate remedy at law.

The fact that other electric railways operated in the city by the same system are in part responsible for the injury to the city’s water pipes constitutes no defense for the defendant.

The defendant will be enjoined from operating its road in the condition shown by the evidence, and from negligently operating the same.

Jurisdiction of the case will be retained to give the defendant an opportunity to show what, if any, improvement it has made since the cause was submitted to this court, in the way of bringing up the construction of its road and in operating the same.

The question of costs of the appeal is reserved.


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    QUESTIONS ARISING ON TRIAL FOR. EMBEZZLEMENT.
    [Circuit Court of Allen County.]
    Amos Young v. State of Ohio.
    Decided, October, 1904.

      Criminal Laio — Embezzlement—Swearing of Jury on their Voir Dire —Jury not Under Duress, When — Embezzlement Complete, When —Repeal of Statute before Embezzlement is Complete.

    1. Where, in a trial' for embezzlement, the prosecuting attorney has upon request furnished a bill of particulars- of the several transactions which the state proposes to prove to maintain its case, the evidence should be restricted to such transactions.
    2. Jurymen need not be sworn upon their voir dire in a criminal case until challenged for cause.
    3. The mere fact that the jury is required' to consider a case for forty-eight hours, including a part of Thanksgiving day, does not show duress; and the permitting of the jury to exercise upon the street during such time, in the custody of the sheriff, is not an irregularity requiring a reversal of the judgment.
    4. The crime -of embezzlement is not complete until the agent or servant, who has lawfully received different sums at different times, finally refuses or is unable to account for the aggregate amount; .and it is not error to overrule a motion to compel the state to elect upon which item it will rely for conviction, where the indictment charges in one count the embezzlement of the aggregate sum on a particular dav.
    5. Where ahe statute defining embezzlement is- repealed during th-e period when the amounts- were received, and a new statute is enacted, it is error to admit evidence of the alleged embezzlement of the sums- received p-rio-r to the enactment of the new statute; and where confessions of the accused are so lacking as to time and amount as to render it impossible to determine whether reference is made to sums received before- or after the change in the statute, the confessions are incompetent.
    Winch,’ J. (orally); Day, J., and Norris, J., concur.
   Amos Young was indicted for embezzling the sum of $6,921 'from the Allen County 'Building & Loan Association Company on September 4, 1902. He was tried and found guilty of embezzling $1,800. A motion for new trial was overruled and a bill of exceptions prepared and filed with petition in error in this court. Some twenty-one errors alleged to have occurred at the trial in the court below are thus presented to us for review. The books of the loan association used on the trial and referred to in the bill of exceptions, were not produced with said bill and we are therefore unable to pass upon the claims that the verdict of the jury was against the weight of the evidence and not supported by sufficient evidence. All the other errors complained of we have considered and will pass upon without detailed statement of the facts of the case, or extended reasons for conclusions reached.

It is said that the court erred in refusing to place the jurors on their voir dire. Such does not appear to be the case. Every juryman challenged for cause was,, put upon his oath for further examination; this is all that is required by Revised Statutes, Section 7279.

With regard to the bill of particulars or list of errors furnished by the prosecuting attorney to counsel for the accused, we are inclined to think that the state should have been held strictly to the offering of evidence with regard to the several transactions therein noted, and no others.

Counsel for plaintiff in error, however, have failed to point out to us in the record where this course was departed from, and we have been unable to hunt out instances of such departure which may, perhaps, be found in the record, which is very voluminous.

We do not find that the trial court erred in compelling the accused to go to trial immediately after his plea of not guilty.

We find no error in the refusal of the' court to give to the jury defendant’s third request to charge before argument, nor in the refusal to give defendant’s requests to charge after argument, written and oral.

The jury .was out forty-eight hours in the consideration of this ease, but we find no facts or law upon which, by reason of their being held that length of time, part of which was upon Thanksgiving Day, it can be claimed that the jury was either under duress or unduly hastened in its consideration of the case, nor was there irregularity in permitting the jury to exercise upon the streets, so far as is shown by the record.

For a proper consideration of the remaining errors complained of, it is necessary to state a few facts with regard to the trial.

Amos Young had been secretary of the building association for several years prior to his indictment. The state, to prove the charge in the indictment that he embezzled some $6,000 on September 4, 1902, offered evidence of many alleged defalcations, on separate days, aggregating that amount. The statute in force when these acts were said to have commenced, was repealed April 29, 1902, and a new statute on that day enacted. Over the objection of defendant evidence was received as to irregularities before April 29, 1902, although the indictment alleged that the offense was committed after said day.

After the evidence as to these several irregularities, alleged to have been committed on different days and from time to time, was all in, defendant moved that the state be compelled to elect upon which one of the alleged separate offenses it would depend for conviction of the defendant. This motion was overruled, and, we think, properly. The nature of the crime of embezzlement is such that although money may be received by an agent or servant from time to time, as it carnes into his hands lawfully, there may be no completed crime of embezzlement until, having thus received several sums at different times, he finally refuses or is unable to account for the aggregate amount. This view of the case, taken by the trial judge as shown by his charge and ruling on the motion to elect, is supported not only by reason, but by authority. Brown v. State, 18 Ohio St., 496; Gravatt v. State, 25 Ohio St., 162; State v. Mook, 40 Ohio St., 588; State v. Bailey, 50 Ohio St., 636.

Now as to the effect of the repeal of the old statute and en¿etment of the new one defining the crime of embezzlement, on April 29, 1902. We are constrained, upon authority of the case of Campbell v. State, 35 Ohio St., 70, to hold that as the indictment charged the crime as committed since said repeal of the old statute, all evidence as to alleged offenses committed before said day should have been excluded and that the jury should have been charged that under the indictment it could only consider transactions of the accused since said day. It is immaterial that this proposition was not argued to the trial court, as is claimed. The evidence offered as to alleged shortages before April 29, 1902, was objected to and admitted over defendant's objection. Whether he gave the proper reason why it should be excluded is immaterial. He asked that it be excluded. It was his right under the authority cited to have it excluded. It was admitted over his objection and his rights were thereby ignored. Such being his rights it was also the duty of the trial judge to protect them in the charge to the jury and this was not done. Proper exceptions to the charge were taken and this we find to be the only error in the charge prejudicial to the defendant.

Ridenour & Halfhill and Richie & Richie, for plaintiff in error.

William Klinger, Prosecuting Attorney, for defendant in error.

Many exceptions to the admission of this incompetent testimony, too numerous to mention, are found in the bill of exceptions.

It remains, however, to point out that this vice is lurking in the so-called confessions of the accused. Not only were these alleged confessions altogether too general and lacking in particularity as to time and amount to be admissible, but as neither the court nor jury could determine whethey they referred to transactions before or since April 20, 1902, they should have been excluded.

It follows that the motion for a new trial should have been granted, and for error in overruling it and for errors in the admission of evidence and the charge, as specified, the judgment of the common pleas court is reversed and the case remanded to the common pleas court for new trial.


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    ASSESSMENTS FOR SEWERS.
    [Circuit Court of Lucas County.]
    Amanda R. Ayers v. City of Toledo.
    Decided, October 3, 1904.

      Sewers — Assessments for — Failure of Council to Fix Value of Property in Advance — No Presumption that Assessment is Inequitaole, When — Report of Assessing Committee — Allegation that Assessment Exceeded 25 per cent. Limitation not Material, When.

    1. Failure on the part of the city council or an assessing committee to fix in 'advance the valuation of property to be assessed for a sewer improvement, or to make a record of such valuation, are not under Section 22Í71 (repealed, 96 O. L., 96) such' vital ■irregularities as will invalidate the assessment, where it appears that the assessment is just and -equitable, and does not exceed the benefits -or the 25 per cent, limitation of the true market value of the property.
    2. The report of an assessing committee is- not conclusive as against ■the owners of the property, but an assessment based upon such a report will not be set aside in the absence of proof that it is inequitable or unjust.
    3. No presumption that an assessment is inequitable arises from the mere failure of council to make a record of the valuation of the property charged therewith.
    4. In a suit to collect an assessment, an allegation by the defendant that the assessment exceeds 25 per cent, of its general taxable value, is not material and should be stricken out, where the statutory limitation -of 25 per cent, refers to the fair market value of the property after the improvement is made.
    Parker, J; Hull, J., and Haynes, J., concur.
    Error to Lucas County Common Pleas Court.
   The action in the court below, was by the defendant in error against the plaintiff in error and others to recover certain sewer assessments. The plaintiff in error filed her separate answer, in which she avers, amongst other things, that the council of the city of Toledo- never determined the value of said premises or of any part thereof; that is to say, of her premises upon which, the assessment of which she complains was levied. And she claims that this was an irregularity in the proceedings which was vital, fundamental and fatal, rendering the assessment null and void.

The statute bearing upon the question, and which plaintiff in error says was not observed in this respect, is Section 2271, Revised Statutes, as passed April 21, 1896 (92 O. L., 271; repealed 96 O. L., 96). That statute contains this provision:

“In cities of the third grade, first class, the tax or assessment specially levied or assessed upon any lot or land for any improvement, shall not, except as provided in Section 2272, Revised Statutes (repealed 96 O. L., 96), exceed 25 per centum of the value of such lot or land, as determined by the council in advance of the assessment or at the time of making the same, which Valuation shall not exceed a fair market value of such lot or lands after the improvement is made, and the cost exceeding that per centum shall be paid by the corporation out of its general revenue.”

Section 2272, Revised Statutes (repealed 96 O. L., 96), referred to/ applies to cases where a petition for the improvement is filed, and there was no petition for the improvement in this case. Therefore, we are brought face to face with the question of the effect of the omission to make the valuation, or the effect of a failure to make a record of a valuation, if such valuation was made.

In the case of Blair v. Cary, 2 C. C.—N. S., 25, a similar question seemed to have been involved, and was debated. We held that we were not required to pass upon it, and did not pass upon it, because in that case there was a petition, but we said this, page 570:

“It is said, in the third place, that the assessment was invalid because the value of the property was never fixed by the council, so that no 25 per cent, limit could be observed, reference being had to Section 2270, Revised Statutes (repealed 96 O. L., 96), which requires that an assessment shall not exceed 25 per cent, of the value'of the property to be assessed. It does not appear to us that any valuation of the property was required in this case. It was held in the case of Strauss v. Cincinnati, 23 Bull., 359, by the superior court of that city, that a failure to fix a valuation did not render an assessment invalid in a case where it was required; and that holding was confirmed by the superior court at the general term, the report of the affirmance appearing in 24 Bull., 422; and if a valuation were required here, we would be inclined to the views, expressed by the court in that case.”

We gave the question pretty full consideration in that ease before we determined that it was not in fact involved, and that it was not necessary for us to pass upon it; and when we said that we felt inclined to the views expressed by the Cincinnati court upon that question, we said it after a full consideration of the matter, and we are not now inclined to adopt different views upon the subject. We think those views are sound and just,

I should perhaps go a little further with a statement of the facts. This issue as to non-valuation presented by the answer, the city undertook to meet by its reply, in which it says that it denies that the council of the city of Toledo never determined the value of said premises or any part thereof; further, that before any assessment was made against the property in the petition set out, the council of the city of Toledo, by ordinance, appointed three disinterested freeholders of the corporation of Toledo, to report to the council an estimated assessment of the cost on the lots and lands to be charged therewith, in proportion, as nearly as possible, to the benefits which might result from the improvement to the several lots or parcels of land so assessed, and that said freeholders determined the fair market value of said property of defendant, Amanda R. Ayers, and laid its assessment in proportion to benefits upon said property, after considering its fair market value. That thereafter said report of the said freeholders containing the assessment made and found, after due investigation and determination as to the value of said property, was regularly presented to the council of the -city of Toledo; and that thereupon the council of the city of Toledo, accepting the determination of said freeholders finding the assessment against said property in proportion to the benefits conferred upon the property, after a full consideration of the fair market value of said property, levied 'the assessment in plaintiff’s petition referred to, bnt neither did said freeholders above referred to, or said council, set out on their records their determination as to what was the fair market value of said lots and lands respectively.

When the ease came to be tried upon these issues, it was submitted upon an agreed statement of facts, and there is some question whether the agreed statement of facts fully sustains these averments of the reply as to the valuation having been made by the council. The agreed statement of facts sets forth that the committee (giving their names) selected by the council proceeded as follows:

1. They got the total cost of the improvement from the city civil engineer.

2. They obtained the description of all the property to be assessed.

3. They ascertained the amount of benefits to eaeh parcel and apportioned the same, having reference, in so doing, to the whole amount to be assessed, but they say that they ascertained and determined that the amount of benefits upon all the property to be assessed exceeded the total of the costs and expenses which they assessed thereon; that the amount of the assessment upon any parcel did not exceed, in any case, the benefits thereto, nor its proportion of the amount assessed upon all the property. They also determined the value of each lot so as not to exceed the limitation of 25 per cent., which they supposed they were required to observe; that is to say, that the assessment should not exceed the limitation of 25 per cent, of the value of the property. That in estimating the benefits, they viewed the property, they considered its location, the size and shape of each parcel, the extent of the frontage, the improvements thereon and the uses to which it was or might be devoted, and everything else that in their judgment had a proper and legitimate influence upon the estimate they were making of the benefits accruing thereto from the improvement; but they did not estimate the amount of the benefits accruing to all the property upon the street and sum the same up, or go through the arithmetical operation of adding the same and using the total as a basis of apportioning the benefits; and finding that the benefits exceeded the amount to be assessed, they proceeded with that amount as a basis, taking no account of the excess of the .total benefits over the total amount to be assessed.

It appears, therefore, that they proceeded about as a like committee did in the case of Blair v. Cary, supra, and which proceeding we found was substantially regular, and in accordance with the statute, and all that was required by the statute.

The agreed statement of facts sets forth that the report of assessing committee was as follows:

“We, the undersigned, a committee appointed by your honorable body, by resolution adopted July 29, 1901, to report an estimated assessment to pay the cost and expense of sewer No. 817 in the alley between White and Raymer streets, from sewer No. 271, in Nevada street, to a point twenty feet east of Whité street, etc., in accordance with said resolution and the instructions therein contained, which are made a part hereof, report as follows:

“We find that .the estimated value of special benefits conferred upon the lots and lands set forth in the ordinance providing for said improvement, passed December 17, 1900, is equal in amount to the total estimated cost of said improvement, including incidental’ expenses, as reported herein.

“We find and report an estimated assessment upon the lots and lands set forth in said improvement ordinance, passed October 17, 1900, which estimated assessment so reported herein, is made on the lots or parcels of lands to be charged herewith in proportion, as nearly as may be, to the special benefits which result from said improvement to the several lots and parcels of land specially benefited by said improvement in the proportion that the special benefit to each lot or parcel of land bears to the whole special benefits conferred by. said improvement. Said estimated assessment upon each lot or parcel of land so assessed as reported herein, is based upon the value of special benefits conferred upon the same by said improvement, and does not exceed the same, nor do they exceed the proportion of the special benefits conferred upon each lot or parcel of land by said improvement. ’ ’

It will be observed that it is not averred or claimed by plaintiff in error that she was assessed inequitably, or that the limitacent. limitation was not exceeded. The finding of facts sets forth in substance and effect that the committee did in fact assess her property equitably and fairly, and that the 25 per cent, limitation was not exceeded; that for the purpose of avoiding an exceeding of that limitation they had valued the property, and that their report to that effect was adopted by the council. It does not appear that they reported any valuation of the property to the council, or that the council when it came to confirm their action, which it did, had before it any valuation of the property made by itself or by the committee. Our view of the matter is, however, that the report of this valuation to the council and the making of a record of it is not fundamental; that is to say, that its omission would not be a vital defect that would render the assessment invalid. It is a means to an end. It is a method to be pursued in order that the assessment shall not exceed 25 per cent, of the value of the property. If the result is fair and equitable to the party, considering the matter with respect to the benefits accruing to the property of the party and the proportion of benefits as compared with the benefits accruing to other property assessed, we question whether it is essential that a valuation should be made.

We feel entirely clear that it is not necessary that any valuation shall be stated by the committee or by the council, or that any record shall be made of it; that what wás done by the committee here in maldng the valuation, and observed in making the assessment, was sufficient; and we think it comes, within the principle of the second clause of the syllabus in the case of Blair v. Cary, supra, which says:

“An assessment for a street improvement is not invalid for the reason that the council or its assessing committee did not proceed by a certain or prescribed method in determining its amount, if a just and equitable result is obtained, and even though the method pursued by the council or its committee is unscientific or informal if the amount assessed against a parcel of land does not exceed the benefits thereto resulting from the improvement, or its just proportion of the benefits thereby resulting to all the property subject to assessment therefor, the owner has no ground of complaint. ”

We do not think that the failure to make a record of valuation should raise a presumption that there was any inequity in the assessment which should require its being set aside.

However it may be as to the burden of proof, we think that there should be a complaint in some form upon the part of the person undertaking to impeach the assessment that there was some injustice done. The statute governing assessments in municipalities states a great many eases in which informalities are not fatal — Sections 2289a, 2289b, 2289c, and 2289d, Revised Statutes (repealed 96 O. L., 96), for instance — and provides with respect to certain informalities or defects in the proceedings that the assessment shall not be perpetually enjoined or declared void in consequence thereof, but the court in which any proceeding is pending to enjoin the collecting of such assessment or the levying of any such assessment “to pay for such improvement of any street, alley or other public highway, or the court in which such proceeding may hereafter be brought, shall allow the property owner bringing such proceeding as plaintiff; to show wherein he has been injured, if at all, by reason of such” informalities, etc. And we think that there being no express provision in the statute as to the kind of informality that is claimed here, we should adopt a rule analogous to that provided by the statute in the sections to which I have referred, that will permit the party claiming to be injured to have an opportunity to show it; that he should not be absolutely bound by the committee’s finding. In eases where notice is required by Revised Statutes 2278, of the time within which a party may come in and find fault with the assessment, if the notice shall be given, and the time for filing complaint or exception shall expire, and no fault is found therewith, we think that if, under such circumstances, no more is made to appear than such an informality as is here claimed, if a court of equity allows a party to come in afterwards and show wherein he has been hurt or damaged, it goes as far as it may or ought to go.

Our attention is called to the case of Thatcher v. Toledo, 19 C. C., 311, where we held that there was an omission in the proceedings that rendered an assessment — in that case a sidewalk assessment — absolutely null and void. But that was an omission in the proceedings required by the statute in the adoption of legislation on the subject, and we held that the council not having observed the express requirement of the statute as to the method to be pursued in adopting the legislation, and the statute being mandatory, that such omission was a fundamental error and defect which rendered the assessment invalid. But we think that this alleged error or omission stands upon a different footing.

B. A. Hayes, for plaintiff in error.

Smith & Baker and U. G. Denman, for defendant in error.

The demurrer to the original answer was properly sustained.

Had the plaintiff in error set forth in her amended answer the true value of her parcels of land, and had it appeared therefrom that the assessment thereon exceeded 25 per cent, thereof, that would have been material. Or had she averred generally that the assessment exceeded 25 per cent, of the true value, that might have sufficed. But the statement of the values at which they were assessed for general .taxation we regard as immaterial, and therefore we uphold the action of the court in striking such allegations: from the amended answer.

The judgment of the court of common pleas is affirmed.