author:
Wildman, J.
      Haznes, J.

text:
    FIXING OF REVALUATIONS BY A BOARD OF REVIEW.
    [Circuit Court of Lucas County.]
    The National Land & Investment Company v. David T. Davies, Jr., Auditor, et al.
    Decided, November 7, 1906.

      Taxation — Rules Controlling Beards of Review — Equalisation and Correction of Errors — Values as They Existed at the Time of the Decennial Appraisement — Must Control Revaluations — Character of Complaint Necessary to Invoke Action l)y Board — Injunction— Section 2814, Relating to Equalisation.

    1. The rules governing the present boards of review are those formerly governing decennial boards of equalization, as found in Section 2814, Revised Statutes.
    2. In equalizing values and correcting errors made by the decennial appraisers, a board of review must at all times be guided and controlled by values as they existed at the time of malting the decennial appraisement, and not by values as at present existing.
    3. The complaint mentioned in the statute as a prerequisite to a revaluation by a board of review must be a substantial complaint, made by a tax-payer or party in interest, and coming to the board of review, and not instituted by it or by its direction.
    Parker, J.; Haynes, J., and Wildman, J., concur.
    This is an action to enjoin the officers, whose duty it is to collect taxes, from collecting taxes in accordance with certain valuations placed upon certain properties by the municipal board of review for this city, in pursuance of Section 2819-1 of the Revised Statutes.
    We had expected that the opinion would be delivered by Judge AVildman, but after considering the matter for some time, the judge is in so much doubt about the correctness of the conclusions that have been reached by Judge Haynes and myself that he prefers not to deliver the opinion. And, just being apprised of this, I am not well prepared to deliver an opinion. We have considered the questions presented by this record very carefully; they involve the construction of a large number of the sections of the statutes on the subjects of the valuation of real estate for taxation, and the functions of various boards that have to. do with the changing1 of values. .All of such boards theretofore existing in this municipality, or having to do with the valuation of property here, have been superseded in their functions by this board of review. The statute does not seem to us to confer any new powers upon this board of review, but seems to confer upon it powers theretofore existing and vested in other boards. This board, proceeding in pursuance of this statute has, according to the allegations of the petition^ ignored the valuations placed upon the properties by the decennial appraisers and the decennial board of equalization; that is to say, it has not considered those valuations as, in any respect, binding upon it, where it has found that the values have changed since such appraisement and equalization were made.
    The important question, as we understand it, in this ease is, whether this board of review, in performing its duties, may take into consideration such changes and fluctuations of value in the real estate of the city as have occurred since the time of the decennial appraisement.
    Plaving laid aside the authorities that we have considered, and allowed them to pass out of my mind, so that I can not readily refer to them and can only give the impression the reading of them made, and I am only prepared to state our conclusions in a very general way.
    Our conclusion is that this board is governed by the rules governing decennial boards of equalization, found in Section 2814; and the construction of those rules brings us to the conclusion that the board of equalization must review, equalize and correct errors in the returns made by the decennial appraisers, and must all the time have in view and be guided and controlled by the values as they existed at the time of the decennial appraisement; that the intention and purpose of the statute is to give some stability to the decennial appraisements; that the general scheme and policy of the law is to require the appraisement of real estate once in ten years, decennial periods, according to the values of such real estate at the time; and that thereafter during the decennial period, no change is to be made in the appraisement, because of any fluctuations in value, except in special cases of structures destroyed, or new structures erected, or where' new property is brought upon the duplicate, which by some error has been omitted; that all corrections, all equalizations, are to based upon the values at the time of the decennial appraisement. Real estate is to be appraised once in ten years, personal property every year: and that there is no more authority for changing the values of real estate, because of fluctuations during the decennial period, than there is for changing the values of personal property, because of fluctuations in the values thereof, occurring during the yearly period.
    In support of the demurrer counsel also raise the point that there has not been such complaint as is required by the statute. Since there lias not been any complaint by a tax-payer that any error existed in said decennial valuations for the year 1900, which required a special equalization as between said tax-payer’s property and any other property of the city of Toledo, or between said tax-payer’s property and said property of the plaintiff. I am not prepared to say for myself that a complaint need be made by any one specially interested, though, perhaps it ought to be made by a tax-payer; but I do think that the complaint should be of an error respecting the valuation of the year 1900; what is contemplated by the law is. the correction of errors with respect to those valuations; and the requirement of the statute was not answered by making an alleged complaint that some property during the decennial period had become more valuable than it was at the beginning of the decennial period; that is not the kind of a complaint contemplated by the law. I believe my associates have more definite and perhaps more radical views upon the subject of the complaint; I leave that for them to express for themselves. .
    The demurrer will be overruled.
   Wildman, J.

We have all of us realized the importance of an early decision of this matter, in order that the case may be taken by either party to the Supreme Court, that we may obtain a decision from that court upon a question of such wide-reaching importanee. For myself, I have not been able to satisfy myself that the conclusion which Judge Parker has announced, as to the limitation of the power of the board of review, is correct; in other words, that in its power of equalizing the values of property, it is limited to a mere correction of the returns as made by the assessors, and afterwards equalized by the decennial board of equalization, or by the board of review, sitting as such. The statute substitutes for the original county and city boards of equalization, both decennial and annual, a new board, under a new name, clothed with all the powers that belonged to the boards as originally constituted under the prior legislation. I am not quite clear that it must sit at one time as a board of equalization and at another time as a board of revision, or that its powers are limited to a mere correcting of the values as returned in the decennial year, in this case in the year'1900. It has seemed to me that perhaps in Ik" case of Mitchell & Walson v. The Treasurer of Franklin County, 25 O. S., 143, cited by counsel in argument, Judge Mcllvainc has expressed the true rule; and yet, I am not, on the other hand, prepared to say that that announcement by him was necessarily called for by a consideration of the case; that it was anything more than a dictum, and possibly it is not conclusive authority in this ease.

In the case of Black et al v. Hagerty, Auditor, 16 C. C., 255, Judge Wilson, for the Hamilton Circuit Court, seems to agree with the view expressed by Judge Mcllvaine that the annual board of equalization is clothed, or was, under the statutes as then existing, with the power of fixing the values as determined by fluctuating conditions; or, in other words, ascertaining the fluctuating values during the decennial period: and that that was an office to be performed by the annual board in addition to the mere fixing of values of new structures, or subtracting the values of structures destroyed or of property taken out of the territory of the city, or structures or additions or property brought into the city.

I do not wish to be understood, however, as being decided in this opinion. I desire to give it further consideration. Counsel are aware that within the last two or three weeks I have been just a little bit distracted by some other matters that have interfered somewhat more than I desired to have them interfere with the performance of my duties in the consultation room. I have tried to give careful attention to all eases; but I was subject to constant interruptions by various matters that have interfered with as careful examination of briefs of counsel and decisions cited as I should prefer to give them.

It is my judgment that the complaint mentioned in the statute as a prerequisite to a revaluation by the board of review, must be a substantial complaint, a complaint by some person in some way interested, whether the valuation that is to be made is an ascertainment of an existing value, or an ascertainment of what was the proper value at the beginning of the decennial period. In either event it seems to me that it should be a complaint that comes to the board of review, and not one that it institutes itself or causes to be instituted by an order on one of its officers. The petition alleges in substance that the board of review selected a block of buildings or number of buildings or blocks of properties as to which it designed to make a revaluation, and that it directed one of its officers to make a complaint. It seems to me that such a technical formal complaint is not such a complaint as the legislators contemplated. And for that reason I am disposed to agree with my associates in overruling the demurrer to the petition. The demurrer, of course, concedes the facts properly pleaded in the petition, including this among others. Whether the attorneys for the parties pleading may desire to amend, or whether they prefer to submit the matter to the' higher court, letting the judgment at once be entered here, I have no means of knowing. Of course if an answer should be filed in which an issue should be raised as to the matter to which I have given special attention and have expressed myself, it might involve a reconsideration so far as I am concerned. I do not know as to my associates. As to the more important and main question involved in the case I have not given it quite the attention that it seems to me that its importance demands, although I have read the authorities and have examined somewhat the briefs of counsel and the pleadings.

Haznes, J.

I wish to say a word or two in this case, before I forget it. The statute creating the board of review is one of those happy statutes that are passed, by the Legislature which, instead of stating explicitly and clearly what may be done by these boards of reviews, has given it th? powers of several boards, and it is difficult tt> ascertain just what the powers are. I have tried, after reading the briefs of counsel in the case, to get some line or passage in the act upon which I can stand and say I clearly find that -this board has power to raise these assessments in the manner in which they have done. I do not find any such power clearly given nor given by necessary implication. The allegation of the petition is, as I understand it, that these appraisements have been raised without any reference to the decennial valuations, or the value of the land at the time of said decennial valuation; but that the board has taken the valuation of the lands at the existing times. Now in the legislation for Cuyahoga county, power was given to the board of review of the county of Cuyahoga to raise revaluations during the intermediate period between the decennial periods, the value of property according to the then existing values at the time that the raise was made. The Supreme Court held, in the case of Gaylord v. Hubbell, 56 O. S., 257, that so far at least as the annual boards were concerned, such boards had no such power, and because they had no such power, and because the Cuyahoga law was of a general nature and gave-such power, it was unconstitutional, and they so declared. Since that time, however, they have made this law, in a measure, a general law, but these same decennial boards now stand, with the same powers they had at that time; and the Supreme Court has declared in positive language that annual boards can not during the decennial period raise the value of property to the value it is found to have at the time they attempt to make the raise. The question then was whether or no, acting as a board of revision, or as a board of review after the decennial appraisement, they could make the raise as claimed. Well, now, it seems to me that in the case of The State v. Morris, 63 Ohio St., 496, where there is a full discussion of these statutes by Judge Burket, the Supreme Court has thrown light upon the question. The question there raised was whether the ITendley act, so-called, was inconsistent with ánother act passed by the Legislature at the same session, the so-called Royer act; and he makes a very careful examination of the statutes and it seems to me he very clearly states at the conclusion of the opinion that under the Royer act the board acts as a decennial board; that the board is to meet and adjourn at a certain time — it may be called again by the auditor — then it adjourns, but its whole business is to adjust and equalize the. returns that are made by the assessors and are set forth in the duplicate made -up from their report; and that by necessary inference, almost by clear statement, their powers are confined to the review of that board and the raising and equalizing of the property on the duplicate according to the values at that time. And I am unable to find any point or any place where power is conferred upon this board of review to raise during the decennial period the valuation of property other than equalizing it from time to time, from any particular amounts that are made with the valuations at the time that the decennial appraisement was made.

It has been suggested that if property be raised only to the actual valuation, there can be no complaint — and the case with which we are familiar in the 37th O. S., Wagoner v. Loomis, is cited. But that is not the question here — that does not bear upon the case at bar. If they have no power to raise it, the whole business is invalid and of no effect, no matter whether they put it to the actual cash value of the property or any other amount. It is a question of power and the Supreme Court has recognized the rule. There is where the case stands with me at the present time. I think under the allegations of this petition, the demurrer should be overruled. And if the parties see fit to answer and make any other allegations and explain a little more fully, of course they should be given permission to do so; but as the case now stands, I am led to the conclusion that the power has not been granted to this board to do what is done in this particular case.

Judge WilDmívn:. I think we are all agreed'that the law is constitutional.

Judge Haynes: That has been decided by the Supreme Court in a case that went up from Ashtabula county — they declared the law to be constitutional.

Judge Wildman: They also held in State v. Ciarle, 68 0. S., 463, that it repealed the act providing for annual city boards of equalization, which it could not do unless it was a valid act.

Judge Parker: By putting the construction upon the law that the majority of this court does, I see no reason to doubt its constitutionality. If it requires the other construction however, it seems to me that then this board may exercise powers very different from those exercised by the county boards or by like boards throughout the state, and then it is a law of a general nature, not having uniform operation throughout the state, and therefore it would not be constitutional. I think that to hold it constitutional requires the construction that the values to be fixed must be those existing at the time of the decennial appraisement.

As to the scope of the authority of the board of, review to change valuations, I wish to add that the brief of attorneys L. W. Storey and F. E. Calkins, wherein the statutes are carefully analyzed, presents this pháse of the ease fully and clearly — and their reasoning and conclusions thereon are to me quite convincing and satisfactory.

Another question has been presented in argument upon this demurrer to which it may be well to make some further reference at this time. It is urged by the plaintiff that the petition falls short of showing grounds for interference by injunction because it is not alleged therein, distinctly, that the valuations by the board of review exceed the actual value of the property either when made or in the year 1900 — -and the case of Wagoner v. Loomis, 37 O. S., 571, is cited on that point.. It is there laid down as the law of this state that: “Inequalities in the valuations, made under a valid law, of property for taxation, do not constitute grounds for enjoining the tax, in the absence of fraudulent discriminations by the agents and officers charged by the law with the duty; of making such valutítions” and that “evhn in such case equity will not relieve a taxpayer whose property is not assessed in a greater amount than would.have been imposed upon it, in case all the taxable property of the state had in fact been assessed by uniform rule and at its true value in money”; and in the application of these principles relief was refused to the plaintiff though his property had been valued at 80 per cent, of its true value in money, while other property in the county was valued at but 40 per cent, of its true value, and though, as was said by Judge Mcllvaine in deciding the case, the record fully established that “a gross, if not a scandalous inequality” was the result. But the court places the decision upon the ground that no more was shown than a “mistake or error of judgment” on the part of the officers upon whom devolved the duty of fixing valuations under the law, and it is pointed out that the law has made ample provisions for the correction of such errors in tribunals specially provided for that purpose, and that parties complaining must (in the first instance, at least) seek redress in such tribunals. Manifestly a court of equity can not enter upon such inquiries and attempt to adjust mere inequalities of burdens thus accidentally and inevitably arising, without superseding such special tribunals in the exercise of their functions, overburdening the court and reducing all to confusion, producing greater evils than it would cure.

But here we have a case where the petition sets forth that the tribunal provided for the correction of such errors has itself not merely erred in certain instances, but has proceeded and is proceeding according to a rule and system based upon an erroneous construction of the law and of its authority in the premises, that must result in wrong and excessive valuations unless by accident in some instances the right values may be hit upon.

To such a state of facts we think the case of Wagoner v. Loomis does not apply. In such a case it does not devolve upon the plaintiff to- allege specifically that his property has been valued above its time value in money. As said by our Supreme Court in Exchange Bank v. Hines, 3 O. S., 1-15: “Taxing by uniform rule requires uniformity, not only in the rate of taxation, but also in the mode of assessment upon the taxable valuation.” The- equality ' and uniformity required by the Constitution requires such measure of uniformity in the mode of fixing values that just results are at least possible, and will probably be attained.' If the law requires — and we hold it does — that the values to be regarded are those of the year 1900, manifestly a rule and system whereby such values are to be disregarded and those of subsequent years taken instead, must in many, if not in most cases, result in destroying that equality and uniformity required by the Constitution and aimed at by the law.

F. E. Calkins and L. W. Storey, for plaintiffs.

Seney & Thurstin and W. S. Thurstin engaged in other cases of like character, filed briefs and made arguments in support of the position -of the plaintiff herein.

TJlery, Maadm & Webster, for defendants.

Among the cases we have examined that give light upon this point and tend we think to support our views, are those of Exchange Bank v. Hines, 3 O. S., 1; Cleveland Trust Co. v. Lander, 62 O. S., 266; The Railroad Tax Cases, 13 Fed. Rep., 722; First National Bank of Toledo et al v. Treasurer of Lucas County, 25 Fed. Rep., 25; Taylor et al v. Louisville & N. R. R. Co., 88 Fed. Rep., 350; Cummings v. National Bank, 101 U. S., 153.


source: Caselaw Access Project

author: By The Court.

license: Public Domain

text:
    SUPERIOR. AND FELLOW-SERVANTS.
    [Circuit Court of Knox County.]
    The J. B. Foote Foundry Company v. James A. Young.
    Decided, October 12, 1906.

      Negligence — Master and Servant• — Test as to Whether One is a Superior or Fellow Servant — Injury to an Employe — Error.
    A servant who is injured while responding to a request or order from another to assist in doing a certain part of the master’s work, is without recourse against the master, unless it appear that the one who made the request or gave the order was in so doing acting under the authority of the master or some one standing in his place.
   By The Court.

The defendant in error obtained a judgment against' the plaintiff in'error in an action wherein he claimed that he had been injured in consequence of the negligence of the plaintiff in error herein, or his servants, whereby he was entitled to recover for said negligence, and proceedings in error are now prosecuted to reverse the judgment.

The most important question herein is the error complained of that the verdict of the jury is manifestly against the weight of the evidence in this ease, and is contrary to and against the law of the case. These grounds were set out in a motion for a new trial, and are carried into the petition in error, which requires us to investigate this entire record, which we have done.

It appears from this record that the plaintiff was employed by the defendant to work in his paint shop, and that a few days after entering the employment, he was in a portion of the defendant’s shop where a machine known as a “rattler” was being operated by one of the defendant’s servants,-Hofleek; that a belt, which in the operation "of said, shop was to be placed upon a pulley, which would start and operate the machine known as a “rattler,” was not upon said pulley, and that the plaintiff attempted to place the same thereon so as to start the machine, and that while engaged in this his arm was caught, and so severely injured, that it required its amputation. He says it was in consequence of the negligence of the defendant and of his servant, Hofleek. It is his claim that the servant, Hofleek, was his superior, and that in performing the work in and about the pulley and belt, he was acting in obedience to the direction and orders of Hofleek, who stood in the capacity of vice-principal or superior to him.

We may go to the extent of assuming that the record shows that Hofleek did- order and direct the plaintiff to assist in adjusting said belt upon the pulley, but we simply assume this situation for the purpose of this opinion. We do not, by any means, so decide. But assuming that that situation existed, is there any proof in this record that Hofleek stood in the relation of a vice-principal or superior to the plaintiff, or was he simply a fellow-servant? If he was simply a fellow-servant, without authority to direct, and the record so shows, then the verdict is not sustained by sufficient evidence and is contrary to law. If he stood in the relation of a vice-principal or superior, and directed and ordered the plaintiff to assist, and the record was otherwise sufficient, then the verdict should be sustained.

In the case of The Kelley Island Lime & Transport Company v. Pachuta, 69 O. S., at 468, the Supreme Court gives a test to be applied in determining whether a particular servant is a vice-principal or a fellciw-servant:

“In Ohio the test to be applied in determining whether a particular servant is a vice-principal or a fellow-servant, except in certain cases where the rule has been modified by statute, is whether or not he has been placed by his employer in a position of control or authority over his co-employe. ’ ’

That this, rather than the nature and character of the work being done, is the controlling and governing test in this state is shown by the following authorities: Railroad Co. v. Keasy, 3 O. S., 21; Railway Co. v. Lewis, 33 O. S., 196; Railway Co. v. Ranney, 37 O. S., 665.

In Railroad Co. v. Keasy we find the following syllabus:

“But a principal is not liable to one servant in his employ for injuries resulting from the carelessness of another servant, when both are engaged in a common service, and no power or control is given to the one over the other. They stand as equals to each other, and are alone liable for the injuries they may occasion. ’ ’

The Circuit Court of Cuyahoga County, in the case of Toomey v. Avery Stamp Company, in the 20th Circuit Court Reports, at page 183, has also defined what constitutes a fellow-servant,:

“It is the rule, in Ohio that the master is liable for injury to one servant from the negligence of another, where both are engaged in a common employment and one is given control over the other. Mere working together where the advice of one is accepted by another, and where by superior knowledge one gives all the advice and direction for the work, is not alone sufficient to charge the master with the negligence of either by which the other is injured, but such direction and authority rniosl be by the authority given by the master or some one standing in his place.”

Now, we have carefully gone over this record and we fail to find any place in the record where the servant, Hofleck, was given by the master any authority or power to control and direct the work of the defendant in error herein. The most that we find from the record, is that he requested the assistance of other servants of the plaintiff in error and that that assistance was given, but that the master had ever conferred any authority or power on him to control or direct this work, or any other work, on the part of this person Hofleck, we fail to find it set out in the record or shown by the proof. This being so, even if the defendant in error was directed by the person Hofleck to do this work, it does not appear that it was done under the direction or authority of the master. That being so, the record fails to show that Hofleck stood in the relation of a vice-principal or superior and the engaging in this work by the defendant in error was not in consequence of any act or direction of the master.

We have, for the purposes of this opinion, assumed every element necessary for the defendant in error to recover, and all that the defendant in error could claim in his own behalf up to the point we have been discussing, but as this is essential and necessary to be shown in the case and is not shown, it is our judgment that the verdict of the jury is against the manifest weight of the evidence and is contrary to the law of the case. Therefore, the motion for a new trial should have been granted, 'and the court was in error in overruling said motion. For this error the judgment of the court of common pleas will be reversed, with exceptions, and the cause remanded to the court of common pleas for further proceedings according to law. Judgment will be entered in favor of plaintiff in error for the costs in this court.

li. C. StilkueU, for plaintiff in error.

w. V. Owen, for defendant in error.


text:
    QUESTIONS IN APPROPRIATION PROCEEDINGS.
    [Circuit Court of Hamilton County.]
    Cincinnati Iron Store Co. v. Trustees Cincinnati Southern Railway.
    Decided, December 29, 1906.

      Eminent Domain — Separate Trials as to Separate Parcels Appropriated —Doss of Future Business — Admissibility in Evidence of Plans of Building and Machinery■ — Plans must be Attached to Bill of Exceptions — Value of Switch Trade on the Property Condemned— Evidence of Values as Fixed by Compromise with Other Oioners— Error Proceedings.

    1. A property owner who has submitted without exception to a joint trial for the assessment of damages for various properties appropriated for railway purposes, can not be heard,to complain in the reviewing court that he was not given a separate trial.
    2. The amount of monthly sales and of freight transported over a switch track are incompetent as evidence, where offered for the purpose of proving loss of future business.
    3. Plans of a building and of machinery are probably admissible, but whether or not their exclusion was prejudicial can not be determined where the plans are not attached to the bill of exceptions.
    4. The cost of transporting merchandise by trucks is not competent evidence for the fixing of the value of a sw'itch track on the property condemned.
    In this case a large amount of property was appropriated for railway- purposes in a single action. As to many parcels agreements were reached, between the time of the filing of the petition and return of the verdict, whereby the amount to be paid to 'the owners was fixed. The value of the property of the present plaintiff was determined by the jury, and the plaintiff being dissatisfied with the award prosecuted error.
    Giefen, J.; Jelke, P. J., and Swing, J., concur.
    The question whether the condemnation proceedings should have been separate as to each individual property owner does not arise upon the record made, the Cincinnati Iron Store Co. interposing no objection in the trial court.
    The amount of the annual sales of the company and the value of the goods transported monthly over the switch track on the company’s premises were sought to be shown evidently for the purpose of proving the loss of future business, which is too remote, uncertain and speculative to be allowed. Railway v. Railway, 30 O. S., 604.
    The plans of the proposed beam or crane, if not those of the office building, were probably admissible evidence under the authority of Railway Co. v. Longworlh, 30 O. S., 108; but neither set of plans being attached to the bill of exceptions the court can not determine whether their exclusion was prejudicial. Palmer v. Yarrington, 1 O. S., 253.
    In proving the value of a switch track upon the premises sought to be condemned the cost of transporting by trucks the same amount of merchandise as that handled over the switch is not competent evidence. Evidence of sales by other lot owners made by compromise is inadmissible upon re-examination, although on cross-examination the witness has been asked concerning voluntary sales in the vicinity.
    The question and answer objected to on page 52 of the bill of exceptions were not prejudicial, nor that on page 112.
    Notwithstanding the wide difference between the values fixed by the witnesses for the trustees and those testified to by the company’s witnesses, none of which was binding upon the jury, we think they arrived at a fair and just valuation, and finding no error in the record the judgment will be affirmed.

      C. W. Baker and II. C. Busch, for plaintiff in error.

      John W. Peck, for defendant in error.'


text:
    SPECIFICATIONS ON BIDDING ON PUBLIC WORK MUST BE DEFINITE.
    [Circuit Court of Cuyahoga County.]
    State, ex rel Sylvester V. McMahon, v. Richard J. McKenzie et al.
    Decided, January 14, 1907.

      Bids and Bidding — Specifications for Construction of a Court House— Definiteness as to Material — Monopoly in Varieties of Material— Items which Preclude Competition — Reservations to Meet such Expenditures — Consiiiutiona'ity of the Court Howe Commission Act — Section 701.

    1. The provision in 97 O. L., Ill, and 98 O. L., 53, requiring a judge or judges of the court of common pleas to appoint the four members of a court house commission (other than the county commissioners) and to fix their salaries does not render these acts unconstitutional in that legislative and executive powers are thereby conferred.
    2. In inviting bids for a public building the building commission are without authority to require bidders to include in the total amount of their bids an arbitrary sum, which the commission reserves the right to expend at its discretion for particular items that are not of such a nature as to render competition at all admissible. But items of a necessarily non-competitive character may be contracted for without this procedure, and it is competent for- the commission to reserve such items for further lawful action.
    3. Before bids are invited for a public building, the commission having the matter in charge must make the specifications so definite and certain as to material as to leave no discretion with the commission in the acceptance of the lowest bid, and where the material is controlled by a patent or other monopoly, alternative varieties of material should be specified in order to open tho way for actual competition.
    Henry, J.; Marvin, J., and Burrows, J. (sitting in place of Winch, J.), concur.
    .In this appeal it is sought to enjoin the Cuyahoga court house commission from entering into a contract with Andrew Dali & Son, for the construction of a court house in said county.
    The first ground alleged is, that the acts under which this eomsion is organized (97 O. L., Ill; 98 O. L., 53; Rev. Stat., 794-1) are unconstitutional, because they attempt to confer legislative and executive powers upon judicial officers, in requiring a judge or judges of the common pleas court to appoint and fix the salaries of the four members of the commission other than the county commissioners. This contention was not strenuously urged in argument before us, and if it were, we should be content with the views expressed by the learned judge in the opin ion below, vindicating the constitutionality of these laws.
    It is complained, secondly, that the commission’s invitation for bids is fatally defective, in that it undertook to suppress competition as to the items of statuary, hardware, etc., by requiring all bidders to include in their total bids, arbitrary sums aggregating some $98,000 to cover these items, which amount, more or less, the commission reserves the right to expend at discretion therefor.
    If this is a means of getting $98,000 out of the county treasury and into the commission’s hands for future discretionary expenditure, it clearly has no warrant in law. If such is not its object, we see no reason for requiring this, or any other amount of money for these items to be included in the bids. The duties sought to be imposed upon the successful bidder, with respect to the items in question, ought not to require the cost thereof to be included in the bids of persons who in no event are to provide them. Such a procedure is both awkward and ambiguous.
    There is nothing in Section 794, Revised Statutes, when properly interpreted, to prevent reserving these items for further lawful action by the commission in procuring them, in so far as their artistic character is such as to preclude their purchase by competitive bidding; for work of a necessarily non-competitive nature may, no doubt, be contracted for without that procedure. When, however, this characteristic inheres merely in the design, as distinguished from the final workmanship, the competitive principle applies to the latter, and must be followed. And this, we think, is peculiarly true of hardware to be specially designed for this structure, and perhaps also of certain other excepted items. In short, we hold, as hereinafter pointed out, that there must be competitive bidding in all cases when competition is at all admissible. And competition, where it is admissible, can not, without plain necessity for postponement, be deferred to a date later than that upon the main contract in view of the provisions of Section 794, Revised Statutes. In construing, however, the specifications on which the proposed contract in this case must be founded, we are of the opinion that the sum of $98,000, to be included in the bids for these items, can not of itself operate as an appropriation of that amount, though in extending a new invitation for bids, the means employed for accomplishing the end in view, so far as that end is admissible, ought to be rid of any room for doubt or argument in this behalf.
    It is further urged that the competition in this case was illusory and unlawful, because it reserved to the commission a discretion, after opening the bids, to determine which of the several kinds of material named in the specifications, to-wit, limestone, sandstone and granite, should, in fact, be used, and also because it impliedly reserved to the commission a further discretion after opening the bids and fixing upon one of these kinds of material, to select which of the several varieties of that material as specified by bidders, pursuant to requirement of the specifications, should likewise be used.
    The commission, in the exercise of the discretion so reserved, has in fact, since the bids were opened, selected granite as the main material to be used, and, in undertaking to accept Andrew Dali & Sons’ bid, has likewise selected that variety of granite known as Pink Milford, as the particular sort of granite to be used. There were bids filed and opened for each of the three kinds of material, limestone, sandstone and granite, respectively, but the lowest bid was not for granite. There were several bids for granite; but Andrew Dali & Sons’ bid was not the lowest for that kind of material. There were several bids for Pink Milford granite, and Andrew Dali & Sons’ bid was the lowest for that variety of granite. But the selection of granite as the kind of material and the selection of Pink Milford granite as the particular variety thereof, were not made until after the bids were opened. Is this procedure warranted by law?
    Section 799, Revised Statutes, provide^ that contracts relating to public buildings “shall be awarded to, and made with, the person or persons who offer to perform the labor and furnish the material at the lowest price.” This section applies to aggregate bids of the sort here under consideration. Combinations of partial bids fall under the somewhat different provisions of Section 794, Revised Statutes.
    It is objected, however, on behalf of the defendant, that Section 794, Revised Statutes, applies only to boards of county commissioners, and not to this building commission, composed, though it is, of four other members, in addition to the county commissioners.
    Three cases are cited in support of this view, namely: Wood Co. (Gomrs.) v. Pargillis, 10 C. C., 376, affirmed without report in Wood Go. (Gomrs.)’ v. Pargillis, 53 Ohio St., 680; State v. Marion Co. (Gomrs.), 39 Ohio St., 188, and Boren v. Darke Go. (Gomrs.), 21 Ohio St., 311.
    With regard to Wood Co. (Gomrs.) v. PargUUs, supra, it is enough to say that the dictum therein, to the effect that certain of the sections of the Revised Statutes embraced in Chap. 1, title 6, entitled “public buildings,” being Sections 782 to 803, Revised Statutes, inclusive, are inapplicable to the proceedings of a special court house commission, was wholly unnecessary to the decision of that case, and no reason whatever .is set forth in the opinion to justify the dictum in question.
    With regard to Slate v. Marion Co. (Gomrs.) and Boren v. Darke Co. (Gomrs.), supra, it is true that they identify Sections 795 to 799, Revised Statutes, with corresponding sections of the act of April 27, 1869- (66 O. L., 53), which was plainly restricted in application to boards of county commissioners.
    Section 794, Revised Statutes, of the same chapter is now, however, significant, as bearing upon the present scope and application of the subséquent sections. The last-named section opens with the words:
    “When any board of commissioners, board of trustees, officers, or board of directors of the state, or of any county, township, city, town, village, school or road district of the state, or of any public institution belonging to the same, or any common council, or other .municipal authority, who are now or at any time shall be authorized to contract or engage for the erection, repair, alteration, or rebuilding of any state house, court house, ’ ’ etc.
    These words seem broad enough to comprehend all public authorities, including this commission, unless otherwise expressly provided by law. The entire section is to be construed in connection with the following sections, and they with • it. This seems to be the effect of the decisions in State v. Marion Co. (Comrs.), supra, which holds that:
    “Section 794 provides for letting contracts, in certain cases and under certain conditions, to separate bidders representing different trades, in respect to which the provisions of that section, and not Section 799, apply. In all other cases the provisions of the latter section govern.”
    The chapter of the Revised Statutes, entitled, “public buildings,” is thus designated manifestly to cover the entire subject, except where it is inconsistent with other express provisions of statute. The provisions regarding county buildings to be erected by the county commissioners are equally applicable to this commission, whose other members are acting with the county commissioners and performing the duties that were formerly imposed upon them alone. It is true that this commission may act affirmatively with the concurrence of but a minority of the county commissioners; but its votes and proceedings are by law required to be recorded upon the journal of the county commissioners, and it is acting for the county in a distinct but entirely similar organic capacity to that of the county commissioners themselves. It is not to be presumed that the larger and more responsible duties that called the commission into existence should be attended with an abolition of the safeguards^ provided by law for the conduct of smaller enterprises of precisely the same kind. Such is by no means the apparent intention of the Legislature, and the opposite construction, being at least permissible with respect to this section as now found in the codified laws, it must prevail.
    It-is objected further by the defendants that even if Section 799, Revised. Statutes, applies, as we .hold it does,' still the decided eases warrant the conclusion that there may be a reservation of the choice of materials until after the bids are opened, whereupon quality, as well as price, may be looked to in determining who is the lowest bidder. Particular reliance is placed on the decisions of the circuit, or Supreme Court, or both, in Ampt v. Cincinnati, 17 C. C., 516, affirmed, without report, in Ampt v. Cincinnati, 60 Ohio St., 621; State v. Toledo (Bd. of Eel.), 14 C. C., 15, and Polhamus v. Board of Ed., 21 C. C., 257, 259.
    But an examination of these cases shows that there was something essentially non-competitive, or but imperfectly competitive, in the subject-matter under consideration, in every instance, to-wit: a heating system, a fire proofing system, or a water works pumping system. In the case affirmed by the Supreme'Court, without report, the statute under consideration required the letting of the contract to the “lowest and best bidder,” and the procedure adopted, which reserved some discretion to' the authorities inviting bids, was approved.
    In the cases, Slate v. Toledo (Bd. of Ed.) and Polhamus v. Board of Ed., supra, the statute under consideration forbade acceptance of any collusive bid, and any but the “lowest responsible bid,” and it was held — the nature of the subject-matters being at least partially non-competitive- — that a discretion might properly be reserved and exercised.
    Shall we allow these precedents to emasculate the statute? Shall we swing wide the door of official discretion which experience teaches is -too- often but another name for graft and corruption? No corruption is charged or indicated in this case. But we are asked so to construe this section as to make it easy for dishonest officials to defraud the tax-payer. Probably no statute, however skillfully framed or wisely construed, can wholly prevent dishonest officials from following their bent. But graft can be made by law more difficult and dangerous, and the courts must be alert so as to construe such laws as to give them the effect intended.
    . Even if the proposed construction of this law preserves the letter, it strangles .the spirit and intent of it. Undoubtedly when the subject-matter is practically non-compbtitive Under the ordinary procedure, it is useless to pursue the letter of that procedure, and if no really competitive procedure under the law can be devised, then there is nothing' left but to abandon the principle in such cases, and procure the thing desired by direct negotiation, instead of competition. To '.the few instances where this is absolutely the case, Section 799, Revised Statutes, and similar sections can not apply. But the number of sucb instances must not be needlessly enlarged. And when materials of common use in ordinary construction are needed, it is idle to say that they are non-competitive simply because it is possible to fix upon a variety cf g'ranite, or marble, that is produced in but one quarry, or a variety of wood or iron that is monopolized by a single dealer. If such a monopoly is to be utilized at all, its attendant evils can be avoided or minimized only by specifying alternatives of the same quality, or of equal excellence, and by then awarding the contract to the lowest bidder.
    Summarized, our understanding of the law is, that wherever public authorities are by law required in. letting' contracts for construction, to invite sealed bids and to let the contract to the “lowest bidder,” it. follows:
    First. That there must be opportunity afforded for bona fide competition wherever the nature of the construction makes it possible; and a specification of non-competitive workmanship or material is unlawful in every case where such specification can reasonably be avoided.
    Second. Upon the opening of the bids, the contract must be awarded to that bidder whose bid, without subsequent alteration or explanation, is, on its face, the lowest one that fulfills the terms of the invitation, unless all bids are rejected, or the nature of the subject-matter compels the exercise of discretion.
    Third. When the contemplated construction is essentially and absolutely non-competitive, because of its artistic nature, or is strictly monopolistic, because the function to be performed, thereby is necessarily dependent upon a single means which is the subject of an exclusive patent, or franchise, or sole source of supply, then the principle of competition is, so far forth, inapplicable.

      Fourth. When the contemplated construction iis but imperfectly competitive, though not absolutely non-competitive, as where the function to be performed is dependent upon some one of various monopolistic means, the principle of competition, so far. as it can reasonably be made applicable, must be strictly pursued; but, in cases of that kind, after the application of the competitive principle has been exhausted, a sound discretion may then be exercised in choosing the most economical means, all things considered, among those that are offered.
    Applying these principles to the concrete case before us, it comes to this:
    If this commission determines to build of granite without more particular specifications of variety or quality, it must so determine before asking for bids, and then let the contract, if at all, to the lowest bidder who comes within the specifications. If it determines to build of Pink Milford' granite, it must likewise so determine beforehand. But if Pink Milford granite is a monopoly, so that specifying that material alone precludes competition, then it should specify a sufficient number of alternative varieties, by name or fixed standard of quality, so that there may be actual competition, and then it should award the contract to -the lowest bidder who comes within such specifications.
    In the matter of general materials for a public building, no discretion as to the choice can lawfully be reserved until after the bids are opened, when the statute expressly requires, as it does here, that specifications should be made in advance, and that the contract should be let to the lowest bidder. To hold otherwise would be to strike at the very root and foundation of these requirements of the statute. For if the law does not apply in letter and spirit to gross raw materials like these, what is left? The law forthwith becomes a dead letter. But it is said that we held otherwise in Emmert v. Elyria, 6 C. C. —N. S., 381,- and that the Supreme Court affirmed that decision in Emmert v. Elyria, 74 Ohio St., 185. But an examination of that case will show that the point specially urged there was not suppression of competition, but the delegation by the council of its legislative power to an executive board;' And though the opinions of both courts do incidently refer to the merits of a procedure like that here adopted in stimulating competition when honestly pursued, yet the endorsement thereof by this ccurt really turned on a curative act whereby the Legislature had set the seal of its approval on this practice, as applied to street improvements. And the exact point here in question was not before the Supreme Court at all, in view of the findings of fact there considered. For aught there appearing the choice of materials may in fact have been determined before bids were invited.
    This case, and those before cited, have, indeed, given us pause. But we hold that the reservation, by the commission, of the right to determine, after opening the bids, the materials to be used in constructing the Cuyahoga county court house is unwarranted and illegal. On the remaining point we entertain, if possible, even less doubt. For though the same difficulty arises with respect to the discretion reserved in the choice of the varieties of marble to be used for floors and other interior work, there is, in addition thereto, another irregularity. The successful bidder filed with his bid certain specimens of marble, as he was required to do. After the bids were opened, he and the other bidders were permitted to designate further specimens of marble as those which they were willing to use. Under circumstances which must have led Andrew Dali & Sons’ representative to believe that he was thus designating the specimen chosen by the commission, although no such choice had then been formally made, he picked out a specimen of marble differing from many that his firm had filed, and upon the specimen thus designated, it is proposed now to enter into the contract here sought to be enjoined.
    In Herrmann v. Stats, 11 C. C., 503, this exact procedure is condemned, and it is held in Berner v. Institution for BUnd, 19 Ohio St., 97, that amendments and alterations of bids after the same are opened can not be permitted. And because it was permitted in this case — for we can not come to any other conclusion from the evidence — as well as because the commission reserved the choice of materials until after the bids were opened, the proposed contract must be permanently enjoined.

      Our brother Burrows, who sat in place of our brother Winch, is of opinion that the requirement of a corporate surety on the successful bidder’s bond was unauthorized and oppressive; that the size and duration of the bond after completion of the contract are likewise unreasonable, and that the provision in regard to the monumental character of the building is indefinite and hence a deterrent to fair competition. But we do not found our judgment on these grounds.

      B. G. Starr, for plaintiff.

      C. -W. Stage, for defendants,


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    VERDICT VITIATED BY IMPROPER CONDUCT AT VIEW OF PREMISES.
    [Circuit Court of Medina County.]
    Nypano Railway v. Wadsworth Salt Co.
    Decided, September, 1906.

      Eminent Domain — Award, to Sait Company for Injury from Smoke and Dirt from Locomotives — Charge of Court — Evidence—New Trial— Improper Conduct on View of Premises.

    1. In an .appropriation proceeding brought by a railroad company against a salt company for land for switch purposes adjacent to defendant’s plant, an award by the jury will not be disturbed for having been based largely on injury to the defendant from the .smoke and dirt from plaintiff’s locomotives. Railway v. Gardner. 45 Ohio State, 309, followed.
    2. Where a jury in an appropriation case views the premises in question, and attorneys and representatives of both parties call to their attention on such view certain facts pertinent to the case, a verdict based on such facts will not be allowed to stand. The misconduct of the parties vitiates the verdict, and notwithstanding both are guilty the one ought not to be allowed to profit thereby ás a penalty upon the other.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Error to Medina Common Pleas Court.
    This-is a proceeding in error brought to reverse a judgment of the' Common Plea's Court of Medina County, which affirms a judgment of the probate court of said county in an appropriation case wherein the railroad company sought to appropriate a strip of land off one side of the salt company’s land for switch purposes. The salt company claimed damages not only for the land taken, but also growing out of obstruction of access to its premises and damages to its business of salt making by smoke and cinders from the railroad. The jury in the probate court awarded $250 for the land taken and $6,750 as damages to the residue of the tract. It is claimed that said judgment should be reversed for three reasons:
    First. Because the verdict is excessive and not sustained by sufficient evidence. On this point it is urged that the obstruction to access was slight and could be overcome at small expense, and that the jury must have given too much consideration to the claim of the salt company that its salt was soiled and rendered unsaleable by smoke from locomotives upon said switch.
    It is established by the . case of Railway v. Gardner, 45 Ohio St., 309, that in an appropriation ease like this, it is competent to take into consideration evidence of substantial injury and loss to the property (not common to the community at large) caused by smoke, noises and sparks of fire, occasioned by running locomotives and,cars along the track in front of the property. Bearing this in mind, we find that the record exhibits evidence tending to sustain the verdict, and we are not disposed to reverse the judgment because the verdict is excessive.
    Second. It is said that plaintiff’s sixth request to charge should have been given. It réad.s as follows:
    “In this case you were sent to view the premises in controversy herein. In making up your verdict you should not consider as evidence any statements made to you during such view by any of the parties or witnesses herein or any statements of anyone else. Nor should you consider as evidence any- , thing you may have seen on such view of the premises where evidence of such fact or facts has been expressly excluded from evidence. ’ ’
    The first sentence in this request is not only the law, but "should have been given, if it stood alone, notwithstanding the record fails to show that the court’s attention had been called to the fact that statements had been made to the jury during its view of the premises.'
    The last sentence of Section 6429, Revised Statutes, reads:
    "The expenses of taking the view shall be taxed in the bill of costs, and no evidence shall be given on either side at the taking thereof.”
    TIad the trial judge questioned counsel proposing this charge as to whether any statements had in fact been made to the jury during the view, and counsel had replied: "I don’t know, but there may have been, and as the statute is specific on the subject, I ask the court to charge according to it,” we are of the opinion that the trial judge should have recognized his duty1-and plaintiff’s right, and charged as requested.
    But the second sentence in this request has given us more trouble. The evidence of facts expressly excluded from evidence, mentioned therein, has reference to testimony offered with regard to damages to the business of plaintiff from the blackening of salt by smoke and cinders. Such evidence, offered by the salt company, was improperly excluded, as we think, in view of the decision of the Supreme Court in the case of Railway v. Gardner, supra. To be consistent, the trial judge should have charged as requested, but as we hold that it was error to exclude such evidence, it follows that the last sentence of the sixth request of the plaintiff does not correctly state the Jaw, and part of the sixth request being bad, it was not error for the court to refuse to give it.
    This conclusion is reached by a majority of the court only, by construing the word “evidence,” as used in Section 6429, Revised Statutes, to mean “testimony.”
    Judge Henry is of the opinion that the view can not be used by the jury as evidence, while the majority is of the opinion that the proceedings for appropriation of. land are special proceedings and not a civil action, and that the jury, as assessors, are entitled to take into consideration what they may have learned on view, in arriving at the damages they may assess.

      Third. The motion for a new trial was based partly upon misconduct of the parties and the jury, occurring at the view, and supported by affidavits showing that plaintiff’s counsel first spoke to the jury, or some of them, calling their attention to the fact that from the construction of the salt company’s buildings, smoke from locomotives could not enter to spoil the salt. The representative of the salt company thereupon directed the attention of members of the jury to salt which was dirty, intimating that the dirt came through windows higher up, but near the switch.
    Thus both parties violated the positive injunction of the law. In such eases it will not do to say that the losing party was equally guilty. .It is better that the administration of the law be kept free from the least taint of improper practice, than that a verdict rendered under such circumstances be allowed to stand as a penalty upon one party, leaving the other party to hold what he may have unduly obtained thereby. There are other methods of punishing the guilty, which should be resorted to by the trial court.
    There was no error in excluding the contract offered in evidence by plaintiff.
    For misconduct of parties and the jury on the view of the premises, the judgments of the common pleas and probate courts are ’ reversed and_ the cause remanded to the common pleas court for further proceeding's.

      Tibiáis & Trank, for plaintiff in error.

      Grant & Sieber, for defendant in error.


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    RECOVERY OF CORPORATE FUNDS UNLAWFULLY DISBURSED.
    [Circuit Court of Cuyahoga County.]
    T. K. Dissette, Executor, etc., v. Lawrence Publishing Company et al.
    Decided, November 12, 1906.

      Corporations — Directors—Stockholders—Appropriation of Earnings for Salaries — Properly Applicable as Dividends — Action for Recovery of — Pleading.
    One who has parted with his -stock in a corporation can not maintain an action in equity against the corporation and its directors and • officers to recover money unlawfully disbursed by them while he was a stockholder.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Error to the Court of Common Pleas.
    This was an action brought by plaintiff against the defendant company and its directors and officers to recover his share of money claimed to have been unlawfully paid out by the company to said officers and directors as salaries, when it should have been paid out as dividends. He alleges that he was a stockholder in the company at the time the acts complained of occurred and that he brings his action for the benefit of all stockholders who may desire to join with him in prosecuting the same.
    There is no allegation that plaintiff was the owner of any stock in the eoi’poration at the time he brought his action, and for this rea-son a demurrer to the petition was sustained.
    The allegation with regard to the wrong-doing of the officers and directors is as follows:
    “That in the month of October, 1904, the defendants or said directors, being officers and employes of the Lawrence Publishing Company, without any notice to this plaintiff, at a meeting of said directors, did make a distribution or dividend of the net earnings of said company to the amount of about forty-five thousand six hundred ($45,600) dollars. That said sum of forty-five thousand sis hundred ($45,600) dollars was in fact a dividend duly .declared out of the profits of said company by said directors, but in order to defraud this plaintiff of his proper proportion of said dividend, said sum was made payable to themselves alone by way of salaries, said salaries in said resolution being made to date back some ten months prior to the passage of said resolution. That besides the said estate and defendants herein, "there is but one stockholder of said corporation. That no one not a director or an employe shared in said dividend, but said directors wrongfully converted the entire sum of $45,600 to their own use, and have refused and do now refuse to give to this plaintiff his proper proportion of said dividend. That said salaries were excessive and were fixed by their own votes alone and for the purpose of depriving non-office-holding stockholders of their fair share of the profits.”
    If this allegation is to be construed as intending that the directors duly declared a dividend of a certain per cent, payable to all stockholders of record at the time, which fund the officers subsequently converted to their own use, then, manifestly, plaintiff might maintain his action at law against the corporation for this debt due him. But we do not so construe the language of the petition. We think the pleader states that instead of declaring- a dividend, as they should have done, the directors voted the surplus funds to themselves and other officers, as additional salaries.
    This wrong-doing- created a cause of action in favor of the corporation for the recovery of the money thus unlawfully disbursed. The money when recovered would be available for a dividend to be then declared, payable to the stockholders then owning the stock. Upon the corporation’s refusing to bring the action, any stockholder might bring it in behalf of the corporation, but one who had ceased to be a stockholder could not bring it. lie has no further interest in the corporation, for* undeclared dividends belong to the pxirchasers of shares.
    This view is recognized by the ease of Zinn v. Baxter, 65 O. S., 341, 366.
    Counsel for plaintiff contend that unless such action can be brought by one who owned stock at the time the wrong occurred, ’ but lias since parted with his stock, then no action can be brought by anybody, because a stockholder who acquires his stock thereafter can not maintain the action,
    This argument not only involves a non seqidiur, but the last proposition is not the law in Ohio.
    The case of Hawes v. Oakland, 104 U. S., 450, is cited as authority for the rule that only a stockholder, who was such at the time of the transactions of which he complains, can maintain an action in equity against the corporation and its directors and officers to recover on rights primarily assertable by the corporation.
    It is true that such is the doctrine of the federal courts and at the time the case cited was decided by the Supreme Court of the United States formulated that principle as a part of rule 94 of practice in equity.
    The reason for the holding as well as for rule 94 is apparent. There had been so many collusive transfers of stock for the purpose of vesting' jurisdiction of such cases in the federal courts, that extreme measures were necessary to prevent the practice.
    Wo are inclined to think that the more reasonable rule and the one most likely to be adopted in a proper case in Ohio, is expressed by the Supreme Court of North Carolina in the case of Moore v. Silver Talley Mining Company, 104 N. C., 534, where it is said that it should appear that the plaintiff is a bona fide owner of stock; that he bought the same in good faith and not for mere vexatious purposes.
    Judgment affirmed.

      Dissetle, Disselle (0 Dissellc and Wm. M. liaynolcls, for plaintiff in error.

      Carr, Stearns & Chamberlain, for defendants in error.


text:
    RECOVERY OF COAL MINING ROYALTIES.
    [Circuit Court of Portage County.]
    The Hutson Coal Company v. Ann Hughes et al.
    Decided, October, 1906.

      Mines and Mining — Royalties for Goal — Action for Recovery of — Proper Parties where the Land was Oioned hy a Decedent — Evidence as to Meaning of Phrase “Merchantable Goal."

    1. An action to recover for the royalty due upon a Bale of coal in place, is a personal action, and must be brought in the name of the personal representative, and not in the name of the heirs at law, although the. estate is otherwise fully settled up.
    2. Where a contract for the sale of coal in place provides that royalty shall be paid upon all merchantable coal mined, parol evidence is admissible to show that in the locality where the coal was situate and the contract made, the phrase “merchantable coal” had a special signification and was so used and understood by the parties to the contract.
    Cook, J; Burrows, J., and Laubie, J., concur.
    Tbis action was to recover for the royalty upon a large' number of tons of coal mined and shipped by the Hutson Coal Company. The action was by Ann Hughes, Fanny Johns and Askenas L. Davies, heirs at law of John A. Davies, deceased.
    John A. Davies, the ancestor, by written contract bargained and sold all the mineral and stone coal underlying two hundred and sixty acres of land situated in this county to a number of parties, who afterward transferred their interest in the contract and coal to the Hutson Coal Company. The contract provides :
    “That in consideration of one dollar received, and of the covenants and agreements of the second party to be performed as hereinafter stipulated, the said party of the first part does hereby bargain, sell and convey unto the said second party all the mineral and stone coal that may underlie the following described tract or lot of land situate in the township of Palmyra, county of Portage and state of Ohio, and is bounded and described as follows: ’ ’

      That is the 260 acres. The agreement further provides that—
    “It is agreed by the party of the second part that they will within six months from the date of this contract, test said land by drilling or otherwise; and in case there should be discovered a mineable vein or basin of stone coal of sufficient quantity and quality to justify the opening and mining of said coal in the opinion of said second party, then they agree -to mine out said coal and pay the following rate per ton for all coal mined on said premises, to wit: When in thickness two feet and under, ten cents, over two and under three fifteen cents, and three feet and over twenty-five cents for each ton of 2240 pounds of merchantable coal. Payments to be made in the following manner:” here setting forth the manner of payment.
    The agreement further provides “Said party of the second part shall have the right to abandon this contract at any time they shall determine that said coal in quantity, quality, or condition is no longer mineable with economy and profit and they may remove the machinery and other structures and property from said land.”
    The first question made is: Are the plaintiffs as heirs at law of John A. Davies the proper parties to bring the suit. The defendant by its answer objects to the plaintiffs prosecuting the suit and insists that the suit should be brought by the personal representative. The solution of this question depends upon whether this contract was a lease of the coal, or an absolute sale of the same. On behalf of plaintiff in error it is claimed that it was an absolute sale of the coal notwithstanding the provision that the parties of the second part might abandon the premises and remove their appliances upon the contingency set forth; and that the provision for the payment of royalty at fixed times was mere payment of the purchase money for the coal and not as rent.
    The case of Edwards v. McClurg, 39 O. S., 41, is almost identical with the case under consideration. The contract in that ease providing: “The first party has agreed to sell, and does hereby give, grant, bargain, sell and convey unto said second party, their heirs and assigns, all the mineral stone coal lying and being in and under the following premises, in consideration of thirty cents per ton on all coal when mined,” That contract also contains -the following clause: “The second party shall have the right to abandon the contract at any time when they shall determine, in their judgment, that said coal in quantity, quality and condition is no longer mineable with economy and profit.” Under that contract it was held — •
    1st. “All mineable coal in place passed absolutely to the grantees. ’ ’
    2d. “After such conveyance no interest in the mineable coal remained in the grantor subject to be mortgaged as land.”
    3d. “A mortgage upon the remaining interest of the grantor in the land did not cover the purchase money due or to become due from the purchaser of the coal.”
    Upon page 49 it is said in the opinion:
    “This is not a case for the application of the doctrine that a mortgagee, after condition broken, may demand the rents from the lessee of the mortgaged premises. The Vienna Coal & Iron Company is not lessee of any part of the premises mortgaged by James L. to Darius M. McClurg. The moneys due and to become due from the company under the deed, September 28, 1867, are not rents but purchase money.”
    This would seem to be conclusive that the claim for royalty was a part of the personal estate of the decedent, which, upon his death, vested in his personal representative.
    It may be conceded that the estate of John A. Davies had been fully settled up as he died in 1888, yet that would not affect the question as to who should be parties plaintiff.
    In the case of Davis et al v. Convine and McGuire, Excrs., 25th O. S., 668, it is held that—
    “The heirs of an intestate can not, even after settlement by the administrator, and where there are no outstanding debts, maintain an action in their own names' to recover possession of assets belonging to the estate, or to compel the executors of a party who had a life interest in such assets, and has wrongfully disposed of them by will, to account for the same.”
    In the opinion it is stated specifically that “all personal actions must be brought by the administrator and can not be brought by the heirs.”
    In the case of McBride v. Vance, 73 0. S.j 258, it was held—

      “The personal property of a deceased person does not vest in his heirs but is in abeyance until administration is granted and is then vested in the administrator by relation from the time of death, and no right of action on a promissory note belonging to a deceased person is shown by a party in an action ion the note by proof of possession, and that he is the sole heir of the decedent.”
    We, therefore, hold that the suit was improperly brought in the name of the heirs.
    The second question made goes to the exclusion of certain evidence offered by defendant below. The defendant in mining and shipping of coal had three grades, lump coal, nut coal and slack. '
    The contract, as we have seen, provided that the party of the second part should pay as royalty so much for all merchantable coal mined — monthly statements were required to be made and the royalty paid. The company made regular statements of the lump coal mined and shipped and royalty was paid upon the same, which was accepted by -the representatives of Davies and receipts given for the same for a long number of years. No statement was made of the nut and slack sold and shipped by the company and no complaint was made of such omission during all those years by the representative of Davies and no demand made for payment of royalty upon the nut and slack.
    This suit is to recover the royalty upon this nut and slack coal sold and shipped by the coal company, the -mine being now abandoned, and for the same royalty as upon the lump coal.
    The line of evidence offered by the defendant and excluded by the court was that at the time this contract was made, to-wit, in 1884, the phrase “merchantable coal” had a trade significance in the locality where this land was situated and the contract made; and that it meant lump coal. This evidence under objection was rejected by the court upon the theory, as we are informed by counsel, that the word “merchantable” is in no way ambiguous and could not be explained by parol evidence.
    Should this evidence-have been admitted? True, the word “merchantable” has a general signification, but may it not also have a trade signification? Webster’s definition is. “Fit for market; such as is usually sold in the market, or such as will bring the ordinary price”; but he adds to his definition “sometimes a technical designation for a particular kind or class.” Had it a technical meaning in this contract ? For nearly fifteen years, close up to the time they would have been barred by the statute of limitations from the recovery of the greater amount of their claim, they remained silent. Month by month they accepted the statements as if the word “lump” was the equivalent of “merchantable.” The important matter is, how did these parties understand this word as applicable to this contract and how did they use it ? If in the locality where this land was situate at the time the contract was made, it had a technical or trade signification, and nut and slack had no market value, and only lump coal was sold and shipped, could it be said that the parties used the term in its general sense, especially when the parties themselves seem'to have understood it in a different sense? Furthermore, from what we know of royalty upon coal, the price in this case was an exceedingly high one. Is it to be supposed that these parties intended to pay from ten to twenty-five cents a ton royalty upon nut and slack?
    Be that as it may, why should not the defendant have been permitted to show the circumstances surrounding the parties at the time the contract was made and the custom of trade and the kind of coal that was in fact sold in the market?
    In the case of Cullen v. Bimm, 37 O. S., 236, evidence was admitted to show what was meant by the term “merchantable ice.”
    In the case of Barrett v. Allen, 10 Ohio, 426, it was held—
    “Where'a note is payable in cloth ‘at a fair wholesale factory price,’ parol evidence is admissible to show that a certain scale of prices was intended different from the actual wholesale prices in the market.”
    In 6 L. R. A., in the note it is said—
    “A special sense which vernacular words have acquired in a particular trade, may be shown, coupled with proof that the parties were contracting with reference to that trade.”

      That was what the defendant below proposed to prove in this case. That the words “merchantable coal” were vernacular words in the trade, meaning the same as “lump coal.” That in fact there was no traffic whatever in nut and slack coal, and therefore the parties were contracting with reference to “lump coal,” in the payment of royalty.
    The evidence should have been admitted, and it was error to exclude it. !
    Judgment of court of common pleas will be reversed and the cause remanded for such proceedings as may be required by law.

      W. J. Becldey, T. II. Johnson and A. T. mils, for plaintiff in error.

      A. S. Cole and Iline Kennedy d& Bobinson, for defendant in error.


text:
    CIRCUIT COURT JUDGMENTS ON WEIGHT OF THE EVIDENCE.
    [Circuit Court of Hamilton County.]
    Michigan Mutual Life Insurance Co. v. Abner L. Whittaker, Administrator of John C. Dexter.

    Decided, January 26, 1907.

      Life Insurance — Payment of Policy Declined — For Failure of Applicant to Disclose Condition of Health — Judgment for Administrator Reversed on Weight of the Evidence — Cause Retried on Precisely the Same Evidence with Same Result — Former Adjudication on Weight of the Evidence Stands as the Law.

    1. An objection to a verdict, on the ground that it does not advise the court on which of two causes of action the jury found against the defendant, is not well taken when it is manifest from an inspection of the pleadings and verdict that the jury found for the full amount upon both causes of action; and were this not true, the objection comes too late if postponed until the hearing on review.
    2. Where a court of last resort on the question of the weight of the evidence reverses a judgment because not supported by sufficient evidence and remands the cause for retrial, the judgment of the reviewing court on the weight of the evidence stands as the law of the case; and if upon second trial no new testimony is offered, and the case is submitted on the record as made at the first trial, it is the duty of the trial judge to withdraw the case from the jury on his own motion and render judgment for the defendant.
    Sullivan, J.; Dustin, J., and "Wilson. J., concur.
    At a former term of this court, other members then sitting, proceedings in error in this cause upon the same record and transcript of testimony, were prosecuted by plaintiff in error to reverse a judgment rendered against it in the court below.
    The judgment was reversed by this court on the ground alleged in the motion for a new trial and the petition in error, that the verdict and judgment was not sustained by sufficient evidence, and the cause remanded for further proceedings.
    A second trial was had before a jury on the same testimony, set forth in a bill of exceptions, taken at first trial and before-this court in such former proceedings in error. The jury again returned a verdict in favor of the defendant in error, differing only from the amount of the former verdict, to the extent of the accrued interest. Motion of plaintiff in error to set aside the verdict was again overruled and judgment entered upon the verdict. In these proceedings we have, therefore, the same record and bill of exceptions that were before this court in the proceedings in which the first judgment of the court below was reversed.
    It is urged by counsel for plaintiff in error, that the finding of the jury being on the issues joined in favor of the plaintiff below in a single sum, that the verdict is irregular, there being two causes of action stated in the petition and issues being joined upon each, the jury should have returned a separate verdict upon each cause of action; that the verdict in its present form does not advise the court whether the jury found in favor of the defendant below, upon the first, or second, or upon both causes of action. It is clear from the amount of the verdict that the jury included the full amount claimed in both causes of action, together with interest thereon for the period stated in the direction of the court. It is not necessary to look further than the pleadings and verdict to ascertain this fact.

      “If the meaning' of the jury in its verdict is certain from its terms, or becomes so when read in the light afforded by the ■pleadings of which it is the duty of the court to take judicial notice, and if the judgment is in conformity with its finding, it ought not to be set aside.” Fries v. Mach, 53 Ohio State, 59.
    “In considering the verdict itself, with a view to its sufficiency, the first object is to ascertain what the jury intended to find, and this is to be done by construing the verdict liberally, with the sole view of ascertaining the meaning of the jury.” Miller v. Shachelferd, 4 Dana, 273.
    If the objection to the verdict was sound we are of the opinion the objection came too late. We, therefore, find this point by plaintiff in error not well taken.
    In the former proceedings in this court, other members then sitting, the judgment entered at the first trial in the court below being reversed for error in overruling the motion of plaintiff in error to set aside the verdict because not sustained by sufficient evidence, and at the second trial the only testimony introduced, being that introduced at the first trial, plaintiff in error contends that the court below should have sustained its motion to set aside the verdict and granted a new trial, because this court had adjudicated the right of the plaintiff in error to have such a motion sustained upon the evidence in the record.
    If that adjudication ivas the law of the case, the motion should have been sustained. Whether the proceedings at the second trial should have been carried that far is discussed farther along. We have read the bill and briefs of counsel, discussing the law and the facts, and in connection therewith the opinion of the -members of this court, who sat in the hearing of the former proceedings in error. The analysis of the testimony set forth in the transcript and the .weight accredited thereto in that opinion is so in accord with our own convictions after carefully reading the testimony that we adopt it. It is so fair, full and thorough that any analysis undertaken to be written out here would be found nothing more than a repetition and hence of no additional value.
    It follows, therefore, that we have arrived at the same conclusion — that the verdict is not sustained by sufficient evidence, thus sustaining the contention of plaintiff in error on this point. For which reason the judgment must be reversed.
    Upon the state of the record, the question then arises, whether the cause must again be remanded for trial, or whether this court can proceed to render the judgment the trial court should have rendered, the case having been submitted on the same testimony a-s at the first trial, and enter that judgment here.
    At the conclusion of all the testimony a motion to withdraw the ease from the consideration of the jury and to enter a judgment for the defendant below was not made. No motion was made for a judgment in favor of the defendant below notwithstanding the verdict.
    In our view neither was necessary. If the former adjudication by this court on the weight of the evidence stood as the law of the case, then the plaintiff below, having failed to make out his case by proof, there was nothing for the jury to consider, and the trial court on its own motion should have withdrawn the case from the consideration of the jury, and rendered judgment for the defendant below.
    If upon the weight of evidence in this kind of a case, this court is the court of last resort, then it is well established by almost an unbroken line of authorities that its decision in the former proceedings in error remains the law of the case. On this point we cite Dodge v. Gaylord et al, 53 Ind. There is a long line of authorities cited in that case. Remanding the case in the former proceedings in error for another trial would then be for the purpose only to secure to the plaintiff below another opportunity to strengthen his case by additional testimony if he could, and not for the purpose of having again reviewed by by this court the ¡same testimony and record before it in the former proceedings. Otherwise, there would be no limit of the right of a party to have the same record reviewed by this court on the weight of the evidence, and hence the salutary rule that litigartion should be finally concluded would be of no force. Under the present statute providing the jurisdiction of the Supreme Court in error, that court is not required in this kind of a case to pass upon the weight of the evidence. In its discretion it may do so. ' But neither party to a case of this kind has a legal right to require that court to do so.
    It follows, therefore, that this court is the last court that parties have a legal right to require to pass upon the weight of the evidence, and hence in that respect it is a court of last resort. Hence we are of the opinion, that the trial court should have withdrawn the case from the consideration of the jury at the conclusion of all the testimony and rendered a judgment in favor of the defendant below, and not having done so, it is the duty of this court upon the state of the record to enter here a final judgment for plaintiff in error, as prayed for in its answer, which will be accordingly done.

      G. W. Baker, for plaintiff in error.

      Robert Ramsey, for defendant in error.

      For previous report of the same case in the same court, see 7 C. C.— N. S., 1;