author: COOK, J.

text:
    ELECTRICITY — NEGLIGENCE.
    [Summit (8th) Circuit Court,
    June Term, 1905.]
    Marvin, Winch and Cook, JJ.
    (Judge Cook of- the Seventh Circuit sitting in place of Judge Henry.)
    Willard E. Wheeler v. Northern Ohio Traction Co.
    1. Death by Excessive Current of Electricity — Prima Facie Case.
    Where an electric light company contracts with a bank to furnish it electricity for incandescent lights., requiring a current not to exceed one hundred and ten volts, which is harmless, and such bank fits up its banking room with wires and lamps for that purpose, it owning the same, and such company causes a current of electricity to pass over its secondary wires and into the bank, far in excess of the amount intended for lighting purposes, to wit, of from seven hundred to a thousand volts, which kills the cashier of the bank while handling a lamp in the performance of his duties: Held, that the fact of such excess of current entering the bank over the wires of the company makes a prima facie case of negligence against the company, and that it is error to refus'e to so charge the jury when requested so to do. 1
    2. Imperfect Lamps.
    In such ease, where the insulating material upon the cord attached to the lamp had become partially worn off by constant use, but still not sufficient to so impair the lamp as to produce any effect upon the person handling the same, when the current does not exceed one hundred and ten volts: Held, that it is error to charge the jury that if they should find, that if the insulation had been perfect that the excessive current would not have killed decedent, then they should find for the defendant.
    3. Proof Required to Rebut Prima Facie Case.
    In such case, it is not' sufficient to rebut the prima facie case for the defendant to simply prove by witnesses that its transformer was apparently in good condition soon after the accident and that its primary and secondary wires showed no evidence of having been in contact.
    Error to common pleas court of Summit county.
    Musser, Kohler & Mottinger and Noble, Pinney & Willard, for plaintiff in error:

      Prima facie ease made by plaintiff. Defiance Water Co. v. Olinger, 54 Ohio St. 532 [44 N. E. Rep. 238; 32 L. R. A. 736]; Iron By. v. Mowery, 36 Ohio St. 418 [38 Am. Rep. 597]; Boyd v. Electric Co. 40 Ore. 126 [66 Pac. Rep. 576; 57 L. R. A. 619]; Newark Elec. L. & P. Co. v. Buddy, 62 N. J. Law 505 [41 AtL Rep. 712; 57 L. R. A. 624].
    Duty to control dangerous substances. Gas Fuel Co. v. Andrews, 50 Ohio St. 695 [35 N. E. Rep. 1059; 29 L. R. A. 337]; Defiance Water Co. v. Olinger, 54 Ohio St. 532 [44 N. E. Rep. 238; 32 L. R. A. 736]; Bradford Glycerine Co. v. Manufacturing Co. 60 Ohio St. 560 [54 N. E. Rep. 528 ; 45 L. R. A. 658; 71 Am. St. Rep. 740] ; Cleveland Term. & Val. By. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142]; Tiffin v. McCormack, 34 Ohio St. 638 [32 Am. Rep. 408]; Wellington v. Oil Co. 104 Mass. 64.
    Rogers, Rowley, Bradley & Rockwell and Squires, Sanders & Dempsey, for defendant in error.
   COOK, J.

This ease is one of more than ordinary importance and presents some new questions, the solution of which is not entirely free from doubt.

The decedent, D. P. Wheeler, was the cashier of the Citizens National Bank of the city of Akron.

The bank had a contract with the defendant, The Northern Ohio Traction Company, to furnish it with electricity to light its bank with incandescent lamps and for no other purpose. The amount of electricity required for such purpose was 104 volts and should not exceed at furthest more than 110 volts as the incandescent-lamp was only calculated to carry that amount of voltage, as the traction company well knew. The bank was the owner of the wires inside the bank and also of the lamps and placed the same in position while the traction company was the owner and had exclusive control of the wires leading up to the wall of the bank where the same connected with the wires of the bank. Upon the alley adjoining the bank the traction company had a pole some thirty-six or forty feet high upon which were three transformers. Into these transformers ran the primary wires of the traction company carrying a current of 1,040 volts and these transformers were intended to reduce the amount of the current to 104 volts which, was carried over what is known as seconadry wires to the various business places lighted by the company, and it was these secondary wires that carried the current into the bank.

In this alley were also a large number of telephone and telegraph wires but no other electric light wires but those of the traction company, as it was the only person or company that had traction or light wires in the city of Akron. The bank for many years had had an electric lamp attached to a cord hanging from the ceiling which was used in opening the safe in the vault by throwing the light upon the dial of the safe. On Christmas morning Mi*. Wheeler, the decedent, as had been his custom for a number of years, on holidays, went to the bank at about 10 o’clock in the morning for the purpose of opening his mail and seeing that everything was right in the vault. He went to the vault, took hold ■of the handle of the door with his right hand and the electric lamp with the other to light him in opening the safe and immediately a current of electricity went through him of sufficient force to kill him. He was found about 2 o’clock in the afternoon dead with his right hand tightly clutching the safe door and his left hand the electric lamp, two of the fingers on his left hand being entirely burned off.

The evidence shows that a current of electricity of 104 volts, will not produce death or serious injury, and further that there were electrical disturbances the night before upon the wires connected with the pole, on which the transformers were placed, and further there were electrical shocks in other business houses, the wires of which were connected with the same transformer as the wires of the bank. From these facts we are convinced that a very high current went through the deceased, certainly more than 500 volts and probably the full current of the primary wires, 1,040 volts, and that this excessive current came from the secondary wires of the traction company leading into the bank, which was generated at its plant.

Under these facts the plaintiff asking the court by special requests to charge the jury as follows:

“7. If you find from the evidence that the defendant furnished to the Citizens’ National Bank electricity for pay and it was understood by defendant and the bank and the employes of the bank, including the decedent, that the current so to be furnished was to be of a harmless voltage, and you further find that on this Christmas day the defendant sent or permitted to pass over its wires and into the bank a current dangerous to human life without warning the bank or its employes, you may and should presume the defendant guilty of negligence, and the burden then would be on the defendant to remove that presumption and the plaintiff would not in the first instance be required to show how the dangerous current got on defendant’s wires and into the bank.
“8. If you find from the evidence that on this day a dangerous current, one which would kill a man, passed over defendant’s wires into the bank building and onto the wires therein and such current killed Mr. Wheeler, the law will presume that the defendant was guilty of negligence and the burden would be on defendant to explain how the current was on the wire and remove that presumption. ’ ’

The court did not give these requests but gave two requests of defendant directly to the contrary. We think these requests of plaintiff should have been given to the jury and that the refusal and the giving of the request of defendant to the contrary was error on the part of the trial court. It will be observed that the traction company had impliedly at least agreed to furnish a current of electricity of not more than 104 volts, which was harmless. Contrary to its agreement it had sent a more excessive current through it, one that was deadly and did kill the decedent. It had exclusive control over the plant that generated the electricity and of the wires that carried it into the bank. Whatever voltage came from its plant and over its secondary wires must of necessity go into the bank.

The bank had no control whatever over these appliances of the traction company. True the bank had control over its own wires but that .could not affect the case as it in no manner could control the amount of current that came over the traction company’s wires. Indeed for all practical purposes they were as much under the control of the traction company as its own wires. If the current was harmless it was harmless, if deadly it was deadly, and the bank could not control it. The employes of the bank were under the care and control of the traction company in this regard.

We think the cases of Iron Ry. v. Mowery, 36 Ohio St. 418 [38 Am. Rep. 597] and the Clev. C. & C. Ry. v. Walrath, 38 Ohio St. 461 [43 Am. Rep. 433], in the facts and the questions decided are very much like the case before us. In the former it was held:

“On the trial of an action against a railroad company by a passenger, for an injury received through a collision of the trains of the company, a prima facie presumption of negligence arises against the company.”

In the charge, page 419, the court said:

“It being admitted that the defendant is a carrier of passengers, that, on the occasion mentioned in the petition, the plaintiff was a passenger on defendant’s train, having paid his fare as stated, it was the duty of defendant to carry him safely to the point of his destination without injury; and when it is shown that defendant failed to carry the plaintiff safely to the place of his destination, this failure puts the defendant, prima facie, in the wrong, and the burden of proof devolves upon it to show that the injury was the result of a pure accident, and that it could not have been prevented by the exercise of the utmost care and skill which prudent men are accustomed to employ under similar circumstances.”

Upon page 422, the court says:

“Whether a presumption of negligence arises, in all cases, against a railroad company, from the mere fact that an accident has occured from which a passenger receives an injury while being carried over the road of the company, is a question not arising in the present case, and therefore is not determined; but where an injury results to a passenger from a collision of the trains of the company, we have no doubt that a prima facie presumption of negligence arises against the company, and that unless the company relieves itself from liability, by showing that the injury did not result from its carelessness, or by showing contributory negligence upon the part of the passenger, judgment should be rendered against it. ’ ’

In the latter case the rule laid down in the former is affirmed and enlarged, and it was there held, page 462:

“On proof of injury sustained by a passenger on a railroad train, by the fall of a berth in a sleeping car, and that the passenger was without fault, a presumption arises, in the absence of other proof, that the railroad company is liable.”

The charge, page 462, in that case complained of was:

“The burden of proof is on the plaintiff to show that he was injured by the defendant’s negligence, either in not providing safe and suitable cars, or in not properly - inspecting and- taking., care of said ears. A mere statement that a person was injured while riding on a railway, without any statement of the character, manner, or circumstances of the injury, does not raise a presumption of negligence on the part of the railway company. But if the character, manner, or circumstances of the injury are also stated, such statement may raise on the one hand a presumption of such negligence, or, on the other, a presumption that there was no such negligence. If the plaintiff was in fact •injured while sitting in his proper place, by the falling onto his head of the upper berth, while said berth ought to have remained in place above, such fact raises a presumption in the case of negligence, for which the defendant is liable.”

In the case of Claflin v. Myer, 75 N. Y. 260 [31 Am. Rep. 467], it is held:

“In an action against a warehouseman for refusal to deliver goods entrusted to him, where the refusal is explained by the fact appearing that the goods were lost by a burglary, the burden is upon the plaintiff to establish affirmatively that the burglary was occasioned by, or was not prevented by reason of some negligence jv omission of due care on the part of defendant; the court will not assume in the absence of proof that the loss was the result of his negligence.
. “The warehouseman in the absence of bad faith is only liable for negligence, and one bringing an action against him for the loss of goods must allege and prove negligence; the burden is never shifted; if plaintiff prove demand and refusal to deliver, this, unexplained, is prima facie evidence of negligence; but if it appear that the goods have been lost by theft, plaintiff must show that the loss arose from the negligence of defendant.
“Where, therefore, the facts proved are as consistent with due care-as with the want of it, plaintiff cannot recover. ’ ’

On page 262 the learned judge says:

“The cases agree that where a bailee of goods, although liable to their owner for their loss only in case of negligence, fails, nevertheless, upon their being demanded, to deliver them or account for such nondelivery, or, * # # where ‘there is a total default in delivering or accounting for the goods,’ * * * this is to be treated as prima facie evidence of negligence. * * * This rule proceeds either from the assumed necessity of the case, it being presumed that the bailee has ex-elusive knowledge of the facts and that he is able to give the reason for his nondelivery, if any exist, other than his own act or fault, or from a presumption that he actually retains the goods and by his refusal converts them.”

Mark the language, “either from the fact that the plaintiff’s evidence is exclusively within his knowledge, ’ ’ or that he has converted the goods to himself. When you make a demand upon the bailee for the goods, and he does not explain why he don’t deliver them, the presumption immediately arises that the goods were destroyed by his negligence, or he refuses to deliver them.

In Keasbey, Electric Wires Sec. 271, the doctrine of res ipsa loquitur is distinctly laid down as being the generally accepted rule in cases of this character where injury is sustained by defective or overcharged wires, and many eases are cited in support of the text, that where contractual relations exist between the parties, and the plaintiff shows actual negligence or conditions so obviously dangerous as to admit of no other inference, the burden thus thrown on the defendant is not that of satisfactorily accounting for the accident, but of showing that it used due care. Stearns v. Spinning Co. 184 Pa. St. 519 [39 Atl. Rep. 292; 39 L. R. A. 482; 63 Am. St. Rep. 807]; O’Neal v. O’Connel, 167 Mass. 388 [45 N. E. Rep. 758]; Harbison v. Railway, 9 App. D. C. 60; Burdon Cent. Sug. Refin. Co. v. Sugar Mfg. Co. 78 Fed. Rep. 417, 422; Anderson Lumber Co. v. Insurance Co. 79 Fed. Rep. 125; Donnelly v. Booth Bros. 90 Me. 110 [37 Atl. Rep. 874]; 56 Alb. L. J. 96; Steiner v. Presbyterian Church, 17 App. Div. 500, 502 [45 N. Y. Supp. 524]; Magee v. Brooklyn, 18 App. Div. 22 [45 N. Y. Supp. 473]; McCray v. Railvoay, 89 Tex. 168, 169 [34 S. W. Rep. 95]; Uggla v. Railway, 160 Mass. 351 [35 N. E. Rep. 1126; 39 Am. St. Rep. 481]; Clarke v. Railway, 9 App. Div. 51 [41 N. Y. Supp. 78; 6 Am. Elec. Cas. 234]; Trenton Pass. Ry. v. Cooper, 60 N. J. Law 219 [37 Atl. Rep. 730; 38 L. R. A. 637; 64 Am. St. Rep. 592]; Suburban Electric Co. v. Nugent, 58 N. J. Law 658 [34 Atl. Rep. 1069; 32 L. R. A. 700; 6 Am. Elec. Cas. 238]; Excelsior Electric Co. v. Sweet, 57 N. J. Law 224 [30 Atl. Rep. 553]; Newark Elec. L. & P. Co. v. Ruddy, 62 N. J. Law 505 [41 Atl. Rep. 712; 57 L. R. A. 624]; Bridges v. Railway, L. R., 6 Q. B. 377, 391; Larson v. Railway, 56 Ill. App. 263; Snyder v. Electrical Co. 43 W. Va. 661 [28 S. E. Rep. 733; 39 L. R. A. 499; 64 Am. St. Rep. 922]; Kepner v. Traction Co. 183 Pa. St. 24 [38 Atl. Rep. 416]; Western Union Tel. Co. v. State, 82 Md. 293 [33 Atl. Rep. 763; 31 L. R. A. 572; 51 Am. St. Rep. 464; 66 Am. Elec. Cas. 210]; Haynes v. Gas Co. 114 N. C. 203 [19 S. E. Rep. 344; 26 L. R. A. 810; 41 Am. St. Rep. 786; 5 Am. Elec. Cas. 264]; Seybolt v. Railway, 95 N. Y. 562 [47 Am. Rep. 75; Denver Tramway Co. v. Reid, 4 Colo. App. 53 [35 Pac. Rep. 269; 4 Am. Elec. Cas. 332].

We must not be understood as holding that the burden of proof is upon the defendant. Negligence is never presumed; but what we do hold is, that in a ease of this character where a contractual relation subsists evidence that this extreme current of electricity passing through the secondary wires of the traction company made a prima facie case of negligence which was its duty to’ explain and rebut. The distinction is made clear in the case of McDonald v. Miser, 25 O. C. C. 753.

Two other instructions requested by the traction company were given by the court numbers 18 and 22 which should not have been given.

18. “If you find that the electric light appliances in the building in which the decedent met his death, were not owned or under the control of the defendant company, and that the same were defective, and that but for such defects the escaping of the primary current into the secondary wires leading into said building, if you find the same so escaped, would not have caused the death of defendant, the defendant company would not be liable. ’ ’

22. “If you find that at the time of the accident complained of in plaintiff’s petition, the defendant company had no control of the wires, lamps, .sockets and other electrical appliances in the building of the ■Citizens’ National Bank Company, and you further find that said appliances were defective and that said injury would not have occurred except for said defective wires and electrical appliances within the building of the Citizens’ National Bank Company, then I say to you that the defendant company would not be liable in this case although the facts may show that an excessive current of electricity was upon the secondary wires at the time of the death of decedent. ’ ’

There was evidence tending to show that the incandescent lamp which the decedent had taken hold of was not perfect for the reason that by constant use part of the insulating material which covered the wire had been worn off and that if it had been of a certain character of lamp or the same kind with perfect insulation it probably would have taken care of 1,040 volts: the glass bulb might have been broken but the shell would not have been affected.

The obligation of the bank was to take care of not exceeding 110 volts, not 1,040 volts. That was all it was required to do. This lamp had been performing that duty for a long time without any preceptible effect upon persons handling it and the bank had no right to expect that a current ten times as strong and of sufficient power to produce death would be sent into that lamp; but on the contrary it had a right to assume that the traction company would perform its duty and not do such a wanton and negligent act. Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276]..

There was another question that was made specially prominent in the charge to the jury, and in the requests of defendant given by the court, and that is the claim of contributory negligence upon the part of the deceased.

We see no place for contributory negligence in this case and it was the duty of the court below instead of emphasizing that ■ question, to have entirely eliminated it. Certainly it could not be claimed that Mr. Wheeler was not in the exercise of due care by taking hold of the incandescent lamp. He had done that day by day for years without any preceptible shock. It is true that the night previous when the porter turned the key to one of the lights in a back room there was a flash and the light went out in that room, and that Mr. Wheeler was aware of that fact and. remarked that the wires in that room must be looked after but the lights in the front room, where the one that caused his death was, were in no manner affected or gave any evidence of any derangement. Why then should Mr. Wheeler be charged with negligence. Should a consumer be required upon every casual disturbance of a lamp to secure an electrician and have all the lamps in thé building examined; and if he had procured such an electrician he could only have reported that while the insulation upon this particular lamp was somewhat worn yet it was all right for the purpose it was intended. We think the court should have told the jury that there was no evidence of contributory negligence in the case and that they should not consider it at all and in - not doing so there was error.

This brings us to the only remaining question and that is. Was the verdict of the jury supported by sufficient evidence?

We have seen that the fact that the extreme amount of electricity that went over the secondary wires of the traction company which took the life of the decedent made a prima facie case of negligence on the part of the company and that it was' necessary for it to explain and rebut this presumption of negligence. Did it do it in a sufficient manner to justify the verdict of the jury? We do not think so. Practically all it did was to show that it did not know how the accident occurred. The increased current came from its plant; it sent it through the secondary wires. At best what did it show? That soon after the occurrence some experts not of very large experience or great ability visited the scene and that they could discover nothing wrong with the transformers or any evidence of contact between the primary and secondary wires and two years afterwards more competent experts testified that the transformer then in court was all right;'but in the meantime this transformer had been in use at several different places stored in the jail and otherwise subject to control by anyone desiring to do so. The evidence further discloses that the first one that examined the transformer and wires which was immediately after the discovery of decedent was an employe of the traction company, whose evidence plaintiff in good faith attempted to procure but after great diligence was unable to do so. The fact still remains that the excessive current went through its secondary wires and as we view the evidence from its plant.

As we have seen wires leading from the same transformers produced the same effect not so disastrous in another business house. Electrical disturbances were also seen around the pole on which the transformer was placed and either in it or close to it. The claim that other wires might have crossed outside of the city of Akron running from other electric plants, and through telegraph and telephone wires, in the alley communicated with the secondary wires of the traction company has no support in the evidence. Why then was the current from the primary wires communicated directly to the secondary wires? The company says it does not know; but it should know, and the jury should have been put in possession of the facts in order that it might say whether- or not the prima facie case had been met. It is not sufficient for the officers and employes of the company to say they do not know. That is what was claimed in the cases of Railway v. Mowery and Railway v. Walrath, supra, but it was not sufficient.

Indeed it seems to us that taking the evidence altogether it pretty clearly appears that the transformer was defective or the primary and secondary wires which were close together upon this high pole which, was liable to swerve became crossed or they came in such close contact as to conduct or produce in the secondary wires the extreme amount of electricity complained of, and that the company did not rebut the prima facie case made by plaintiff below.

The judgment of the court of common pleas will be reversed for the reason of the refusal of the court to give requests 2, 7, 8, 10, 11, 17 and 22 requested by plaintiff and in giving requests 2, 4, 17, 18 and 22 requested by defendant; also for error of the court in the charge upon the question of contributory negligence; also that the verdict is contrary to the evidence, and the case is remanded for a new trial.

Marvin and Winch JJ., concur.


source: Caselaw Access Project

author: GIFFEN, J.

license: Public Domain

text:
    BURGLARY — CRIMINAL LAW.
    [Hamilton (1st) Circuit Court,
    March. 11, 1905.]
    Jelke, Swing and Giffen, JJ.
    William E. Mason v. State.
    1. Actual Occupancy of Dwelling House at the Time a Material Element of Crime of Breaking and Entering an Inhabited Dwelling.
    A dwelling house which is temporarily unoccupied by reason of the extended absence of the owners from the country and the temporary absence-on business of the servants left in charge is not an inhabited dwelling house within the purview of Lan. R. L. 10441 (R. S. 6835) which defines the crime of burglary.
    2. Failure to State Effect of Recommendation for Mercy, not Prejudicial, Error, when no Request therefor made.
    It is the duty of the court, in the trial of an indictment for breaking and entering an inhabited dwelling house in the night season, with intent to, commit a felony, to instruct the jury as to the effect of a recommendation of mercy; but failure so to do is not prejudicial error when no request is. made for such instruction.
    Error to Hamilton common pleas court.

      P. S. Phillips and Wm. Sander, Jr., for plaintiff in error.
    H. M. Rulison, prosecuting attorney and Arthur Winning, assistant prosecuting attorney, for defendant in error..
   GIFFEN, J.

The plaintiffs in error were indicted and convicted for the burglary of an inhabited dwelling house, and now complain that the court of common pleas erred in its charge to the jury by stating, in substance, that a dwelling house, although not at the time of the burglary occupied by any human being, was nevertheless an inhabited dwelling house within the meaning of the statute.

That the court erred in charging the jury that they might recommend mercy without also stating the effect of such recommendation.

Laning R. L. 10441 (R. S. 6835), under which the prisoners were indicted, provides as follows:

“Whoever in the night season maliciously and forcibly breaks and enters any inhabited dwelling house with intent to commit a felony, or with intent' to steal property of any value, shall be imprisoned in the penitentiary during life; but upon recommendation of mercy by the jury shall be imprisoned not more than thirty years nor less than ten years.”

The object and purpose of imposing a penalty so severe as imprisonment for life manifestly is for the peace, repose and safety of families in the night season, who are occupying a dwelling house, the forcible breaking of which for felonious purposes during the hours which peaceable and law-abiding people give up to rest, would naturally cause alarm, distress and danger.

At the time of the forcible breaking of the dwelling house in this case, it was occupied by no human being, the owner and his family being absent in Europe, and the. two servants left in charge being temporarily away on an errand.

The alarm and danger of the occupants of the dwelling house could not occur for the reason that none was there; but it is suggested that it is the -possibility of the dwelling house being occupied at the time or of the occupants’ returning before the burglar had escaped, which the statute contemplates. But it is a well-recognized rule of law that penal statutes are strictly construed. By a liberal construction, a dwelling house may be deemed to be inhabited when one or more human beings are living in it continuously during the night season as well as the day, although the occupants may be absent for a few hours during any particular day, but a strict construction requires us to have regard to the mischief intended to be remedied. The legislature evidently intended to protect those dwelling in the house at the time the burglary is committed, and not those who might be there by reason of its being their usual place of abode.

This construction of the word “inhabited” was applied in the case of People v. Butler, 16 Johns. 203, where the court say:

“By the'addition of the word inhabited in the first section of the act, the legislature evidently intended to make a distinction between the act of burning a dwelling house while persons were actually in it, at the time, and burning an uninhabited dwelling house; the one offense being punishable with death, and the other by imprisonment.”

In that case, the extreme penalty for the burning of an inhabited dwelling house was imposed, not because of the loss of the building or of the furniture and other contents, but because of the danger to the persons actually in it. So in this case, imprisonment for life is imposed, not because of the breaking of the building or the loss of any of its contents, but rather to protect those who are at the time occupying the premises. It is true that afterwards the legislature of the state of New York amended this statute so as to read: “The dwelling house of another in which there is at the time a human being,” but this seems to have been done for the purpose of making certain, by statute, that which before was uncertain and determined only by judicial construction.

We are of opinion, therefore, that the court erred in its charge to the jury.

Concerning the other alleged error, it is the duty of the court to instruct the jury upon all the questions of law arising before them in the case, but a failure to instruct upon any particular point does not constitute prejudicial error unless the court is requested to so charge. While we think that the jury could not intelligently recommend the prisoners to mercy without knowing the effect of such recommendation, and that it is the duty of the court to so instruct, yet there being no request in this case, it was not error, for which the judgment could be reversed.

Judgment reversed, and cause remanded for new trial.

Jelke and Swing, JJ., concur.


author: MARVIN, J.

text:
    OFFICE AND OFFICERS — CITIZENS—ALIENS.
    [Cuyahoga (8th) Circuit Court,
    February 9, 1905.]
    Marvin, Winch and Voorhees, JJ.
    (Judge Voorhees of the-Fifth Circuit sitting in place of Judge' Hale.)
    State ex rel. Harvey R. Keeler v. Clarence J. Collister.
    1. Village Marshal and Councilman Must Be Citizens of United States.
    A person is ineligible to the office of village marshal or village councilman unless he is a citizen of the United States.
    2. Right of Person to Hold Office of Councilman May Be Tested in Quo Warranto.
    The right of a person to hold the office of village councilman may be determined by a court of. chancery in a quo warranto proceeding, when such right is challenged on the ground that the incumbent is ineligible because he is not a citizen of the United States. Laning R. L. 3097 (B. 1536-612), making the council the judge and qualifications of its members, does not affect the jurisdiction of the court in such a case.
    3. Foreigner Must Take Oath to Support Federal Constitution and to Renounce Allegiance to Foreign State, etc.
    A foreigner cannot become a citizen of the United States simply by taking the preliminary oath that it is his bona fide intention to become a citizen, and to renounce forever all allegiance and fidelity to any foreign state, sovereignty, etc., and receiving) a certificate of'the taking of such oath; it is essential that, at the time of his application to be admitted, he also take an oath 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 state, sovereignty, etc.
    4. Person Disqualified at Time of Election to Office Cannot Thereafter Qualify, etc.
    One who is disqualified from holding office at the time he was elected thereto and entered upon the discharge of its duties, because he was not a citizen of the United States, cannot thereafter qualify and hold the office by becoming a naturalized citizen.
    Quo Warranto.
    C. L. Selzer, for plaintiff:
    Petitions in quo warranto prosecuted on behalf of the state by the attorney-general to oust an incumbent of an office need not set forth the name of the person claiming to be entitled thereto. .State v. Heinmiller, 38 Ohio St. 101.
    Quo warranto may be maintained against a person who assumes the exercise of the office of member of the council from a ward which has no legal existence or under an election held without lawful authority. State v. O’Brien, 47 Ohio St. 464 [25 N. E. Rep. 121]; State v. Kearns, 47 Ohio St. 566 [25 N. E. Rep. 1027].

      Limitations on right of city council to judge of the election returns and qualification of its own members under original Sec. 1679 (repealed • 96 O. L. 96; see Lan. R. L. 3097; B. 1536-612). State y. Darby, 4 Cire. Dee. 124 (12 R. 235), affirmed by the Supreme Court; Darby v. State, 52 Ohio St. 611 [44 N. E. Rep. 1134],
    Quo Warranto, the proper remedy in this case. Harding v. Eichinger, 57 Ohio St. 371 [49 N. E. Rep. 306].
    As to citizenship-. 6 Am. &'Eng. Enc. Law (2 ed.) 15; Dryden v. Swinburne, 20 W. Va. 89.
    , Effect of election.wherein leading candidate is ineligible. See Gulich v. Hew, 14 find. 93 [77 Am. Dec. 49]; State v. Swearingen, 12 Ga. 23; State v. Giles, 1 Chand. (Wis.)112; State v. Smith, 14 Wis.' 497; Saunders v. Haynes, 13 Cal. 145; Elate v. Gastinel, 20 La. Ann. 114; . Lane v. Randall, 4 Dill. 425 [14 Fed. Cas. 1131]; Dillon, Munic. Corp. Chap. 9, Sec. 135.
    Kerruish, Chapman & Kerruish, for defendant.
   MARVIN, J.

Each of these cases, State ex rel. Harvey R. Keeler v. Clarence J. Collister and State ex rel. Harvey R. Keeler v. Caesar Collister, 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 April 6, 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 May 4 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 qualifications 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 May 4, 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.

Laning R. L. 3098 (B. 1536-613) provides as to the qualifications of member of the council that:

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

In Lan. R. L. 3248 (R. S. 1737; B. 1536-996) it is provided that:

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

In Lan. R. L. 3237 (R. S. 1727; B. 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 to vote, is a qualified elector.”

Section 4, Art. 15 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 qualifications of an elector.”

Section 1, Art. 5 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 Lan. R. L. 3097 (B. 1536-612), which reads:

“Council shall be the judge of the election and qualification of its members. ’ ’

The question here presented was before the Supreme Court in the case of State v. O’Brien, 47 Ohio St. 464 [25 N. E. Rep. 121]. In that case 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 cases 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 June 2, 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 tona-fide his intention to become a citizen of the United States and to renounce forever all allegiance or 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, lie 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 Sec. 2165 U. S. Rev. Stat. (3 Bates’ Ann. Stat., 4 ed., page 3770), as follows:

“An alien may be admitted to become a citizen of the United States in the following manner, and not otherwise:
“First. He shall declare on oath, before a circuit or district court of the United States, or a district or supreme eourt of the territories, or a eourt 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 iona 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.
“Second. 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 abjures 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.
“Third. 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 principles of 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.

It 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, 10 U. S. (6 Cranch) 176 [3 L. Ed. 190]. 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 Suffolk, 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. Insurance Co. 11 U. S. (7 Cranch) 420 [3 L. Ed. 391], 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, 29 U. S. (4 Pet.) 393 [7 L. Ed. 897], simply holds that where the records of the court having jurisdiction to admit one to citizenship shows that he was admitted to citizenship, it would be presumed 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 Sec. 2165 U. S. Rev. Stat. 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, on 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 abjures 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, but because of the conceded fact that these things have never been done by him.

We were cited in argument to Morse, Citizenship by Birth and by Naturalization, Appendix 228. We find nothing applicable to either of the cases 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 cannot 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 [9 Am. Rep. 489], 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 fhe incumbent be ousted from the office which he assumes to hold.

Winch and Voorhees, JJ.,' concur.


author: WINCH, J.

text:
    MUNICIPAL CORPORATIONS — STREET RAILWAYS.
    [Summit (8th) Circuit Court,
    April Term, 1905.]
    Marvin, Winch and Lauhie, JJ.
    (Judge Lauhie of the Seventh Circuit sitting in place of Judge Henry.)
    Akron (City) v. Northern Ohio Traction & L. Co.
    1. Ordinance Renewing Franchise Chanted to Street Railroad Construed as-a Whole, etc.
    An ordinance renewing a street railroad franchise will be construed as a whole in determining whether it is limited in its operation to that part only of the street in which the company has already laid its tracks and is operating its cars, or extends to all the rights, privileges and franchises granted by the original ordinance. Hence, an ordinance renewing a franchise granted in the entire street will not be limited to such parts of the street in which tracks have been laid and cars are in operation, thereby denying the right of the grantee - to construct tracks in the remaining portion of the street, unless the renewing ordinance as a whole will reasonably bear such construction.
    2. Notice must be Given before Declaring Forfeiture of Street Railroad Franchise, when.
    Where the ordinance granting a franchise provides that a failure of the grantee to comply with the terms and conditions of the franchise after twenty days’ notice shall operate as a forfeiture of all rights and franchises granted, a forfeiture cannot be declared by the municipal council for failure of the grantee company to comply with its terms and conditions with respect to laying tracks, until after said twenty days’ notice has been given by the council.

      3‘. Renewal of Street Railroad Franchises Waives Former Defaults. -
    The failure of the grantee of a street railroad franchise to lay tracks as therein provided, is waived by a subsequent ordinance expressly renewing all the rights, privileges and franchises granted by the original ordinance.

      Appeal from Summit common pleas court.
    C. F. Beery and S. D. Kenfield, for plaintiff:
    The ordinance of 1899 terminated the rights of the company in that part of College street in question without renewing them. State v. Railway, 3 Circ. Dec. 471 (6 R. 318) ; People v. Railway, 126 N. Y. 29 [26 N. E. Rep. 961]; St. Glair Go. Tpk. Go. v. Illinois, 96 U. S. 63 [24 L. Ed. 651]; Goosaw Min. Go. v. South Carolina, 144 U. S. 550 [12 Sup. Ct. Rep. 689; 36 L. Ed. 537]; Hannibal & St. J. Ry. v. Packet Go. 125 U. S. 260 [8 Sup. Ct. Rep. 874; 31 L. Ed. 731]; Minium v. Larue, 64 U. S. (23 How.) 435 [16 L. Ed. 574]; Northwestern Fertilizing Go. v. H-yde Park (Vil), 97 U. S. 659 [24 L. Ed. 1036]; Union Pass. Ry. v. Philadelphia, 101 U. S. 528 [25 L. Ed. 912]; Beach, Priv. Corp. Sec. 25.
    Whatever rights the company once had in the street in question have been lost by abandonment and nonuser. State v. Railway, 3 Circ. Dee. 471 (6 R. 318); People v. Railway, 126 N. Y. 29 [26 N. E. Rep. 961]; St. Clair Co. Tpk. Go. v. Illinois, 96 U. S. 63 [24 L. Ed. 651]; Snouffer v. Railway, 118 Iowa 287 [92 N. W. Rep. 79] ; Henderson v. Railway, 21 Fed. Rep. 358; Atchison St. Ry. y. Nave, 38 Kan. 744 [17 Pac. Rep. 587; 5 Am. St. Rep. 800]; State v. Latrobe, 81 Md. 222 [31 Atl. Rep. 788]; Booth, Street Railway Sees. 51, 52; Plymouth Tp. v. Railway, 168 Pa. St. 181 [32 Atl. Rep. 19]; Lake Roland Elec. Ry. v. Baltimore (Mayor), 77 Md. 352 [26 Atl. Rep. 510; 20 L. R. A. 126],
    Rogers, Rowley, Bradley & "Rockwell, for defendant.
   WINCH, J.

This action was brought to restrain the defendant from constructing a street railway on that part of College street in the city of Akron between Mill street and Market street.

From the petition it appears that on July 2, 1888, the council of the city of Akron granted to John S. Casement, his successors and assigns, a franchise for the period of twenty-five years to construct and operate a street railroad on certain streets in said city, including College street from Market street to Middlebury street, now known as Buehtel avenue, and that under said ordinance a street railroad was constructed upon said College street from. Mill street to Buehtel avenue, but none was ever constructed on that part of College street in question, a distance of about seven hundred feet, there being street railroads upon both Market and Mill streets, but no connection between the two on College street.

Thereafter the Akron Street Railway So Illuminating Company succeeded to all the rights of said John S. Casement under the ordinance mentioned, and receivers having been appóinted for said company, on March 13, 1899, the council of said city passed an ordinance entitled:

“An ordinance granting the Akron Street Railway & Illuminating Company, its receivers, successors and assigns, extensions and renewals of the rights, privileges and franchises now owned by it, so that the said rights, privileges and franchises will continue and be in force until the first day of February, a. d. 1924, and prescribing the terms and conditions of such extensions and renewals. ’ ’

The defendant has succeeded to all rights under the ordinances mentioned, and on April 4, 1904, notified the city of Akron of its intention to construct a line of street railway oh said College street between Mill street and Market street.

On April 11, 1904, the council of said city passed a resolution protesting against and objecting to the laying of street railway tracks by the defendant on College street between Mill street and Market street, and declaring the forfeiture of the privilege and franchise claimed by the defendant to lay said track and directed the solicitor of said city to ,take such legal steps as he might deem necessary to prevent said construction.

Whereupon the solicitor brought this action praying for an injunction against said proposed construction and that the forfeiture declared by said counsel of the right, privilege and franchise claimed by' the defendant to lay street railway tracks in College street between the points named be approved, confirmed, adjudged and declared by the court.

Plaintiff bases its right to the relief prayed for upon two propositions :.

First. That the ordinance of 1899 terminated the rights of the company in that part of College street in question without renewing them.

Second. That whatever rights the company once had in said street have been lost by abandonment and nonuser.

Let us examine these propositions in their order.

To maintain the first proposition plaintiff makes and relies upon three quotations from the ordinance of 1899, as follows:

From the .second.paragraph of the preamble: “Whereas, the Akron Street Railway & Illuminating Company, George W. Crouse and A. O. Beebe, receivers, now own and have in operation a street railroad in and along certain streets in said city, as follows, to wit:” Then follows the streets and parts of streets on which the company “own and operate” its road, but no reference is made to College street between Market and Mill streets.

From section 8: “It being' the intention to renew and extend all tbe franchises, rights and privileges now owned by the Akron Street Railway & Illuminating Company, George W. Crouse and A. O. Beebe, receivers, so as to grant permission to the Akron Street Railway & Illuminating Company, its receivers, successors and assigns, to and until the first day of. February, a. d. 1924, to maintain and operate a street railway * * * and the Akron Street Railway & Illuminating Company, its receivers, successors and assigns, are hereby granted permission to and until February 1, a. d. 1924, to maintain and operate a street railway” upon certain streets, naming them, but not mentioning the territory in question. ,>

From section 9: “The intention being that the terms of the franchises under which the said Akron Street Railway & 'Illuminating Company, George W. Crouse and A. O. Beebe, receivers, are now operating, shall continue in full force' and effect, and be as fully complied with, * * * as though the same were fully embodied herein, except where the provisions of this ordinance shall conflict therewith, in which case the provisions of this ordinance shall control.”

From the provisions quoted plaintiff claims that it is manifest that the ordinance of 1899 superseded the ordinance of 1888, and that as the ordinance of 1899 specifically enumerates the streets and parts of streets over which the franchises were renewed and does not mention the territory in dispute, and uses the words “maintain” and “operate,” which imply previous construction, the intention of the council is manifest to renew and extend the right of 'the company to maintain' and operate street railways already constructed, but not to renew or extend the right to construct new railways on territory originally granted, but not mentioned in the last ordinance.

Such conclusion might, perhaps, be drav/n, were there not other provisions of the ordinance of 1899, which we must not overlook.

In addition to the title of the ordinance, which has already been given, our attention is called to the following parts of the ordinance:

The third paragraph of the preamble:

“Whereas, it is conducive to the public interests that the time of the expiration of the franchises, rights and privileges now owned by the Akron Street Railway & Illuminating Company, George W. Crouse and A. O. Beebe, receivers, should be extended so that all the franchises, rights and privileges now owned by the Akron Street Railway & Illuminating Company, George W. Cronse and A. O. Beebe, receivers, shall expire on February 1, a. d. 1924.”

Section 4. “That the rights, privileges and .franchises granted to John S. Casement, by an ordinance entitled ‘An ordinance granting permission to John S. Casement, his successors and assigns, to construct and operate a street railroad in and along certain streets therein named,' and passed in council on the second day of July, a. d. 1888, which said rights, privileges and franchises are how owned by the Akron Street Railway & Illuminating Company, George W., Crouse and A. O. Beebe, receivers, be, and'the same are hereby renewed and extended until February 1, a. d. 1924.”

“Section 11. That from and after the passage of this ordinance, and the acceptance, and for the full term thereof, the improvement of existing lines and the construction of new lines of said railway shall be under the supervision,” etc. “The tracks * * * shall,be so constructed,” etc.

From section 16, regulating fares: “For each passenger from any point on the line of said railway within the city limits, to any point on streets upon which the Akron Street Railway & Illuminating Company, its receivers, successors and assigns, may now or hereafter operate a street railway within the city limits, or from any point on any street upon which the Akron Street Railway & Illuminating Company, its receivers, successors and assigns, may hereafter operate a street railway within the city limits, to any point on the line of said railway within the city limits, one continuous trip, either-way, a fare of five cents;” etc.

It is manifest, considering the ordinance of 1899, as a whole, that it extends and renews all the rights, privileges and franchises granted by the ordinance of 1888. Among other rights, privileges and franchises granted by the original ordinance was the right to construct a street railway on the street in question, and that right is therefore renewed and extended, unless it had been lost in some manner, which brings us to the second proposition made by plaintiff, that whatever right was originally granted, abandonment and nonuser have forfeited it.

If we examine the franchises again upon this proposition, we find that such contingency is provided for in both ordinances.

■ Section 2 of the ordinance of 1888 provides:

“A failure of said John S. Casement, his successors and assigns, to comply with the terms and conditions of this ordinance after twenty days notice from the city council, shall operate as a forfeiture by said John S. Casement, his successors or assigns, of all rights and franchises herein granted.”

Under this ordinance no notice was ever given the company to lay a track on College street between the points named, and we-hold that before a forfeiture of its right so to do would be worked or could be declared, such notice must be given as required by the ordinance.

Hence, at the time the ordinance of 1899 was enacted, the right to lay tracks on College street still belonged to the Akron Street Bailway & Illuminating Company, and said right was not only renewed by the latter ordinance, but the passage of the ordinance was an express waiver of any failure to lay said track theretofore.

The ordinance of 1899 contains in Sec. 21 a similar provision for forfeiture of all rights and franchises therein granted upon failure to comply with any of its terms and conditions after twenty days notice from the city council, and no such notice having been given regarding the failure to lay tracks on College street at the time the railway company gave the city notice of ..its intention to lay said tracks, it follows that said council had no right at that time to declare said privilege forfeited, and the petition must be dismissed.

Judgment accordingly.

Marvin and Laubie, JJ., concur.


author: JELKE, J.

text:
    ERROR — ATTORNEYS—COURTS.
    [Hamilton (1st) Circuit Court,
    March, 1905.]
    Giffen, Jelke and Swing, JJ.
    Newport & Cincinnati Bridge Co. v. August Jutte et al.
    1. Errors not Deemed of Essence in Trial Court Cannot be Successfully Urged as Grounds for Reversal.
    The refusal of the trial court to give certain requested instructions to the jury, but which were not, however, deemed of' essence by the party making the request, nor seriously pressed to the attention of the court, cannot be urged in a reviewing court for the mere technical purpose of securing a reversal of a judgment which is found to be correct, and which, from the record, appears to have given substantial justice.
    2. Duty of Counsel to Preserve Trial Court from Error, etc.
    A duty devolves upon counsel for both parties to endeavor to preserve the trial court from error.

      3. Request for Instructions Before Argument not -Affirmatively Shown by Record, when.
    A statement in the record: “And thereupon before argument the counsel upon both sides requested special charges to be given to the jury, as follows’’, does not affirmatively show a request that the charges referred to be given before argument.
    Error to Hamilton common pleas court.
    Maxwell & Ramsey, for plaintiff in error.
    Stephens, Lincoln & Stephens, for defendant in error.
   JELKE, J.

This cause was originally tried in the court of common pleas in April, 1899. The judgment then rendered in favor of the defendant company was reversed by this court in the January term, 1901, for reasons assigned in the opinion reported in Jutte v. Bridge Co. 12 Circ. Dec. 136 (21 R. 422). To this decision the company prosecuted error to the Supreme Court. Upon the hearing, the Supreme Court affirmed the judgment of this court, reversing the court of common pleas, and in its mandate said, for the reason that the court of common pleas had erred in that portion of its general charge which dealt with the question of contributory negligence.

The cause was then remanded to the court of common pleas, and was again tried in that court in April, 1904, resulting in a verdict and judgment in favor of the plaintiffs, August Jutte et al.

Error to that judgment is now prosecuted to this court, and is herein under consideration. ,

At this latter trial, it was contended by counsel for the bridge company that inasmuch as the Supreme Court had mentioned but one of the grounds for reversing the former judgment of the court of common pleas in its mandate, the Supreme Court intended thereby to indicate its disapproval and to overrule the reasons assigned by this court, in its opinion, Jutte v. Bridge Co., supra.

The trial judge refused to recognize this contention, and in its trial of the case generally followed the principles of law enunciated by this court heretofore and that of the Supreme Court in its mandate.

- The trial court, however, did not follow our former opinion strictly, but whatever modification it made of it, tended and was in favor of the defendant, the plaintiff in error herein. We do not think the contention of plaintiff in error as to the significance of the Supreme Court’s mandate is well taken. We think that the rulings and charge of the court below at this latter trial, are substantially right and in accordance with the law as laid down by this court and the Supreme Court, and we find no error therein.

Again, it is contended that there was error in the trial below in the refusal of the following charge and under circumstances detailed on page 296 of the record:

“It makes no difference in this case whether proper newspaper notices were published or not, if you find from the evidence that the plaintiffs had actual knowledge of everything which the secretary of war required to be published.
“The foregoing charge was tendered and not given and the defendant excepted, all under the circumstances following:
‘ ‘ Counsel for defendant had, during the trial, handed the court the printed record of the former trial and at this point stated that he wished each of the special charges asked, by the defendant on the former trial, as the same appeared in said record, given on this trial. Said charge was one of those so tendered. No special attention was called to said ¿articular charge, nor was there any argument upon it in the case, although there was argument on the charges. The court had examined the said printed record of charges and stated that he would not give any of them. Counsel for defendant then said: ‘To the refusal of each of these charges defendant excepts. ’
“In declining the printed charges the court overlooked the foregoing charge. If his attention has been specially called to the charge, he would have given it. The court made no objection, nor did plaintiff’s counsel, to the manner in which said charges were tendered. ’ ’

We are of opinion that the refusal to give this charge under the circumstances herein set forth does not constitute prejudicial error of a character to require or justify a reversal of a judgment otherwise correct and on the record appearing to give substantial justice.

Without resorting to a fine criticism of this charge to justify its refusal, we are willing to say that the forum of a reviewing court is not a place where, for the first time, a point which has not been deemed of essence at the nisi pros trial, and which has not been seriously pressed to the attention of the court, is to be brought to the front for the mere technical purpose of securing a reversal of a judgment which the court finds otherwise correct.

A nisi prius trial is not a game of chess or a match of the wits of counsel to achieve a technical result. Counsel on both sides owed it 'to themselves, to the trial judge, and to the administration of justice, to help the trial judge, and so far as possible preserve the nisi prius trial from error. Admitting that this charge ought to have been given, we nevertheless are of, the opinion that the failure to give the same had no controlling effect upon the verdict.

However, looking for a technical escape from such technical error, we might say that the statement on page 288 of the record: “And thereupon before argument the counsel upon both sides requested special charges to be given to the jury, as follows:” does not show a request that these charges be given before argument though the. sequence of the record shows that the request was made before the argument; the record does not disclose a request that the charges be given by the court before argument.

“To constitute error under this provision of the statute, the record must affirmatively show that the court was requested to give such instructions before the argument, and that its refusal to do so was the subject of an exception.” Monroeville (Vil.) v. Root, 54 Ohio St. 523 [44 N. E. Rep. 237].

“While it is the right of a party to have correct written instructions given by the court to the jury before the argument of the case to the jury commences, when properly asked, to constitute error as to this, it must affirmatively appear from the record that the court was requested to give such instructions before the argument, and that its refusal to do so was the subject of an exception.” Cincinnati St. Ry. v. Jenkins, 11 Circ. Dec. 130 (20 R. 256).

If this is not strictly a special charge within Lan. R. L. 8699 (R. S. 5190), the subject is treated in a general way on page 305 of the record in the general charge sufficiently to cure the court’s refusal to give it as written.

We find no prejudicial error in the record of the trial of this ease, and judgment therefore will be affirmed.

Giffen and Swing, JJ., concur:


author: VOLLRATH, J.

text:
    OFFICE AND OFFICERS — PLEADINGS.
    [Allen (3d) Circuit Court,
    April Term, 1905.]
    Norris, Hurin and Vollrath, JJ.
    John N. Hutchinson v. Lima (City).
    1. Clerk of Board of Waterworks Trustees of Municipality an Employe, not a Public Officer.
    A person selected as the clerk or secretary of the board of waterworks trustees of a municipality by such board prior to, and who continued to discharge the duties of the position under the board of public service after, the enactment of the new municipal code, is not an “officer but an employe, inasmuch as his duties were those of a subordinate, and all his actions were subject to the direction of both the board appointing him and the board of public service. State v. Jennings, 57 Ohio St. 415, followed.
    2. Board of Waterworks Trustees Discontinued by New Municipal Code.
    The board of waterworks trustees of a municipality, whatever its status, was legislated out of existence by the new municipal code. See See. 222 municipal code, Lan. R. L. 3234 (R. S. 1723; B. 1536-978).
    3. New Municipal Code Continued Clerk of Waterworks Trustees in Employment.
    A clerk of the board of waterworks trustees who was performing the duties of his employment at the time the new municipal code was enacted, to wit, October 22, 1902, was, by virtue of Sec. 213 thereof (Lan. R. L. 3229; B. 1536-912), continued in his employment until removed by the board of public service, which board superseded the former board.
    4. Averment that Employe of Municipality was Arbitrarily Removed Negatived, when.
    An averment in a petition filed by a person, who was removed from the position of clerk or secretary of the board of public service of a municipality, that he was arbitrarily and without cause removed by such board, is negatived by the further averment that he was removed while such board was acting within the scope of its duties as such board, and the • petition is, therfore, insufficient against demurrer. (Norris, J„ dissenting.)
    Error to Allen common pleas court.
    Becker & Beckwr, for plaintiff in error.
    H. O. Bentley, city solicitor, for defendant.
   VOLLRATH, J.

The original action herein was begun in the court of common pleas of Allen county, Ohio, by the plaintiff in error as plaintiff, and the defendant in error as defendant.

The petition below presents its cause of action substantially as follows :

On April 2, 1902, the board of waterworks trustees of the city of Lima, Ohio, elected the plaintiff, John N. Hutchinson to the position of clerk or secretary of said board for a period of two years from May 15, 1902, at an annual salary of $1,200, payable in semimonthly installments of $50 each. Said plaintiff duly -qualified for this position by giving bond in the sum of $10,000 and entered upon the discharge of his-duties. The board of waterworks trustees by which this appointment was made was legislated out of existence by the act of October 22, 1902,, known as the municipal code. Plaintiff, however, continued to hold his position as aforesaid under the board of public service established by ihe new code and which supplanted said board of waterworks trustees, in said city and continued to so discharge his duties as such clerk until October 2, 1903, when, as he claims, he was summarily removed from his position by said board of public service and has not since that time been permitted to discharge the duties of his said position although constantly ready and willing to do so and that he had not, during the period from said date of October 2, 1903, until May 16, 1904, the time at which his term of service would have been fully completed and ended, been able to secure any other employment. ' Wherefore plaintiff asks judgment against said defendant city for the amount of his salary that would have accrued to him during the time he was so debarred from his said office as aforesaid.

A general demurrer was interposed to this petition by the defendant below and this demurrer was sustained by the court. Error is prosecuted here to reverse this action of the lower court in sustaining this demurrer.

In order to obtain a proper conception of the issue thus presented it will be necessary to take a closer view of the petition in this case. After making the formal averments, showing corporate character of the city of Lima, its possession of a system of waterworks controlled by a board of waterworks trustees, and the appointment of plaintiff by said board as clerk, or secretary of said board, and his qualifications and entering upon the duties of his office as aforesaid, the petition proceeds to state as follows:

‘ ‘ That on May 16,1902, said plaintiff entered upon the duties of said office of clerk or secretary of said board as aforesaid, after having duly qualified, and continued to discharge the duties of said office as aforesaid dp to and including October 2, a. d., 1903, to the complete satisfaction of the said board of waterworks trustees, while they remained in office until May 4, 1903, and to the complete satisfaction of the board of public service of the city of Lima, Ohio, which board of public service-succeeded to the duties of said board of waterworks trustees, on May 4,. 1903, as provided by the municipal code of the state of Ohio. That the duties of said clerk or secretary of said waterworks, were to take charge of the boobs, papers and accounts of said waterworks; to have the care and control of the safe belonging to the city of Lima, Ohio, for the use of the said waterworks, and to keep and record the minutes of the board of waterworks trustees, while they were in office and had control of said waterworks and that afterwards, as such' secretary, he was required to and did perform precisely the same and similar services under and by virtue of his office for said board of public service, from May 4, 1903, up to and including October 2, 1903.
“That the duties required of him as such secretary remained precisely the same under the board of public service, as they were when he entered upon the discharge of his duties, under said board of waterworks trustees, up to the time he was excluded and prevented by said board of public service from performing the duties of said office, as hereinafter set forth, and that they still continue the. same under the rules and regulation of said board of public service, and as provided for by the municipal code of Ohio.
“Plaintiff says that on October 3, 1903, in the nighttime preceding said day, said board of public service of the city of Lima, Ohio,, did forcibly enter into and take poss.ession of the office room, wherein said plaintiff as such secretary aforesaid performed the duties of his said office, and wherein was transacted all the business of the board of waterworks trustees, and of said board of public service, so far as the control of and management of said waterworks was concerned, and also forcibly took possession of the books, papers and accounts belonging to said office, and in the care and control of said plaintiff as such secretary or clerk and also took possession of the safe and the money contained therein, belonging to the city of Lima, Ohio, and under the care and control of said plaintiff and then and there and thereafter prevented plaintiff from entering into said office room and also of performing any of the duties of said office, from and after October 2, 1903, up to and including May 15, 1904, the day on which the term of office expired to which said plaintiff was elected as aforesaid.
“That on the morning of October 3, 1903, to wit, at 7:30 o’clock, a. m., the said plaintiff demanded from said board of public service, at the said office room of the waterworks, the right and privilege of entering said office room and the possession of the books, papers, safe and all effects belonging to said office as such secretary and insisted on his riffht to enter said office room to perform the duties of such office, which demand said board of public service of the city of Lima, Ohio, refused to comply with, and did so refuse until the expiration of said plaintiff’s term of office, although said plaintiff did for a reasonable time, to wit, for at least the next ten days following said October 3, 1903, continue each morning at the time for opening the office of said waterworks, demand from those placed in the same to represent said board of public service the rights to perform the duties of his office, which demand was persistently and continuously refused.
“Plaintiff says, that he has ever since and at all times since October 2, 1903, up to and including May 15, 1904, stood ready and willing to do and perform all the duties of said office, of secretary or clerk of said waterworks, as aforesaid, but has been wholly debarred from so doing by the actions and refusal of said board of public service of Lima, Ohio, as such board, pretending to and while acting within the scope of their duties as such board.
i “Plaintiff says that he was unable to find other similar employment from October 2, 1903, to May 16, 1904.
“Plaintiff says, that said action of said'board of public service, was arbitrarily and without reason; that plaintiff had at all times performed his duties as such secretary or clerk, in full compliance with law and to the satisfaction of said board of public service and without any complaint or charges of neglect or wrongdoing preferred against him by said board of public service.
■ “Plaintiff says, that said defendant paid his salary, as and for such employment from May 15, 1902, up to October 1, 1903, and no more. That he has made demand of said defendant for his salary due him at the dates at which the same became due, and also for the full amount after his term of office.had expired, which defendant has refused to pay and still continues to refuse to pay.
“Wherefore plaintiff asks judgment for the total amount which he would otherwise have received as salary as such clerk during the period extending from October 1, 1903, to the' end of the term of his appointment, to wit, to May 16, 1904.”

The sole question as presented here is: Did the court below err in sustaining the demurrer to said petition ?

Plaintiff claims substantially that by virtue of said appointment he became a public officer and could not therefore be removed before'the expiration of his term except for cause and upon charges filed and presented; that the act of the board of public service in dispossessing and removing him as it did was arbitrary and unreasonable and without cause and therefore he was entitled to hold his position to the end of said term and was and is consequently entitled to receive from said city his stated salary for all of that time.

In the view which we take of this ease it perhaps matters little whether plaintiff was an officer of the city of Lima within the meaning of that term, or a mere employe of the board of public service. It is claimed on the one hand that he was an officer and denied on the other. The functions of a public officer are clearly defined in State v. Jennings, 57 Ohio St. 415 [49 N. E. Rep. 404; 63 Am. St. Rep. 723]. The second syllabus of this case reads as follows:

“To constitute a public office, against the incumbent of which quo warranto will lie, it is essential that certain public duties, a part of the sovereignty of the state, should be appointed to it by law, to be exercised by the incumbent, in virtue of his election or appointment to the office, thus created and defined, and not as a mere employe, subject to the direction and control of some one else. ’ ’

Under the principals here laid down it is difficult to understand how plaintiff could be considered a public officer. His position was that of clerk. His duties were those of a subordinate. All his actions were subject to the direction, first, of the board of waterworks trustees, and secondly, to the board of public service.

As stated above, however, the solution of this question does not enter seriously into our findings. Whatever may have been the legal statutes of the board of waterworks trustees it was legislated out of existence by the act of October 22, 1902, above referred to, and by Sec. 222 of said act, now designated as Lan. R. L. 3234 (R. S. 1723; B. 1536-978). This provides as follows:

“The first election under this act shall be held on the.first Monday in April, 1903, and all elective officers provided for in this act, shall be elected at that time, and the terms of all existing elective officers of municipalities except as' otherwise provided in this act, shall cease and determine on the first Monday in May, 1903, and their offices shall be abolished upon the qualification of the officers provided for in this act, and every year thereafter, * * * on the first Tuesday after the first Monday in November, an election shall be held in each municipal corporation, and such election shall be the regular municipal election, shall be held, canvassed, and the result certified in the manner provided by law with respect to municipal elections. The officers chosen at the first election held” hereunder and at all subsequent elections “shall begin their respective terms on the first Monday of May succeeding their election.”

Under other circumstances this might be construed to be the end of the subordinate positions created by said board of trustees and the consequent termination of all terms of employment, or offices created by it and the removal or election of the incumbents of same. This, however, is prevented by another provision of the municipal code known as Sec. 213 of the code (Lan. R. L. 3229.; B. 1536-912). This section reads as follows:

“All officers elected by the people or appointed by any authority, and all employes under any boards of officers in any municipal corporation, and all officers or employes in any educational, charitable, benevolent, penal or reformatory institution in any such corporation, now serving as such, shall remain in their respective offices and employments and continue to perform the several duties thereof under existing laws, and receive the compensation therefor until their successors are chosen or appointed and qualified or until removed by the proper authority in accordance with the provisions of this act. ’ ’

This section of the code doubtless continued the plaintiff in his office until “removed by the proper authority in accordance with the provisons of this' act,” or until his successor was chosen or appointed. There can be no question but what the proper authority in this ease was the board of public service. He was removed by the board of public service but claims that was arbitrarily done. Section 145 of the code (Lan. R. L. 3134; B. 1536-681), indicates how removals may be made by the board of public service. This section reads as follows:

“The directors of public service may employ such superintendents, inspectors, engineers, harbor masters, clerks, laborers and other persons, as may be necessary for the execution of the powers and the duties of this department, and may establish such subdepartments for the administration of affairs under said directors as may be deemed proper. The compensation and bonds of all persons appointed or employed by the department .of public service shall be fixed by said directors, and no person shall be removed except for cause satisfactory to said directors, or a majority of them. ’ ’

Particular attention is invited to the concluding portion of this section, to wit:

“The compensation and bonds of all persons appointed or employed by the department of public service shall be fixed by said directors, and no person shall be removed except for cause satisfactory to said directors, or a majority of them.”

This doubtless gives the board of public service power to remove any of their appointees or employes. This, under the circumstances of this case, would include the plaintiff as clerk of said board. The only condition is that he shall not be removed except for cause satisfactory to said directors, or a majority of them. That plaintiff was removed is evident. That his removal was satisfactory to the board of directors is also evident. Plaintiff, however, claims that he was not removed for cause, but simply arbitrarily removed. This claim might be good so far as the face of this petition is concerned were it not that the plaintiff in his petition makes an averment that this action of the board of public service was taken by the board “while acting within the scope of their duties as such board.” There can be only one legitimate inference from this declaration of the petition. If the board was acting within the scope of its duties in the removal of plaintiff, they must have been acting legally and his removal must have been for cause. There are other averments in the petition claiming that the removal was arbitrary and without reason, that plaintiff had performed his duties in compliance with law and to the satisfaction of said board and without any complaint or charges, etc., but under the familiar rule that a pleading of this nature must be construed most strongly against the pleader, the effect of the admissions above quoted must be apparent.

Note also that Lan. R. L. 3229 (B. 1536-912) provides that officers and employes affected by said act of October 22, 1902, and acting as such officers or employes at said date, shall remain, etc., and receive their compensation, etc., until their successors are chosen or appointed and qualified. This would apply to plaintiff as well as others. There is nothing in the petition, it is true, to show that a successor to the plaintiff had been appointed, but since the petition alleges that the board of public service acted within the scope of its duties in said matter, an inference to that effect might be justified.

Under these circumstances it is the opinion of the court that the demurrer was well taken. There are a number of other reasons assigned by defendant in error in support of the action of the lower court, but as the grounds noted above are sufficient to dispose of the case, we do not pass upon the others.

We find no error in the judgment of the lower court and the judgment of said court is therefore affirmed at the costs of the plaintiff in error. Judgment and execution accordingly and case remanded to the court of common pleas for execution.

Hurin, J., concurs.

Norris, J., dissents as to fourth clause of syllabus.