text:
    CONTROL OF COUNCIL OVER. THE PLACING OF ELECTRIC WIRES IN THE STREETS.
    Court of Appeals for Hamilton County.
    The City of Cincinnati v. The Diamond Light Company.

    Decided, February 5, 1915.

      Municipal Corporations — Authority to Place Wires in the Streets— Must be Obtained from Council — Consent of Abutting Property Owners Can Not be Substituted — Statutory Provision Against Granting Exclusive Rights Not Nullified Thereby — Whether Such Authority Has Been Wisely Tested in Council Not a Judicial Question — Meaning of the Word “Through” as used in Section 9193.

    Electric wires, or conduits for carrying such wires, can not be placed in the streets, alleys or public places of a municipality, for the purpose of distributing an electric current for commercial purposes, relying upon the consent of the owners of abuting property without obtaining the consent of council.

      Walter M. Schoenle, City Solicitor, and Saul Zielonka, Assistant, Miller Outcall and Lawrence Maxwell, for plaintiff.

      Michael Muller and Joseph TY. Q’Hara, contra.
    Jones (Oliver B.), J.; Swing, P. J., and Jones (E. H.), J., concur.

      Motion for order directing Court of Appeals to certify its re'eord overruled March 9, 1915, For a contrary opinion, see Cincinnati v. Diamond Light Co., 16 N.P.(N.S.), 305.

   The city of Cincinnati by its solicitor under the direction of the city council brought this action in the court of common pleas against the defendant, seeking to enjoin it from laying, constructing and maintaining wires and.conduits in public streets and alleys for the purpose of conducting electricity for power and lighting for commercial purposes in said city.

The defendant, the Diamond Light Company, is a corporation organized and existing under the laws of Ohio, and has constructed and installed an expensive and effective plant, on the west side of Walnut street, between Fifth and Sixth streets, in the city of Cincinnati, for the generation and distribution of electricity, and is engaged in the business of generating and supplying electric current for light and power for commercial purposes to consumers within that city.

In furtherance of such purpose, without any consent from the council or other officers of the city of Cincinnati, said company has laid wires, and constructed conduits across the following public ways in said city: Vine street, between Fifth and Sixth streets; Hatters alley, between Walnut street and Lodge (Fountain) alley; Lodge alley, between H'atters and Thorp alleys; and Thorp alley, between Vine street and Lodge alley, below the surface of said streets and alleys without disturbing the pavements thereof. It also claims the right to use for such wires a conduit which had been constructed connecting premises on the west side of Walnut street with premises directly opposite on the east side of said street, known as the Commercial-Tribune building. It also claims the right to further extend its conduits and wires under the streets and alleys of said city for the purpose of supplying electrical current for commercial purposes to consumers.

Streets, alleys and public ways are held in trust for the public for the use for which they were dedicated or acquired, and subject to the property rights of the abutting owners they are for such public use under the absolute control of the legislative power of the state (Louisville & Nashville R. R. Co. v. Cincinnati, 76 O. S., 481). Electric light companies, in connection with telegraph and telegraph companies, are authorized to use and occupy the streets and highways of the state, county or municipality, under the provisions of Title 9, Div. 2, Sub-Div. 1, Chap. 2 of the General Code (Sections 9170 to 9198).

These laws were first enacted for telegraph companies and later were extended and applied to telephone companies by' R. S. 3471 (G. C. 9191), and afterwards were applied to electric light and power companies by R. S. 3471a, which reads as follows:

11 The provisions of this chapter, so far as the same are applicable, except section three thousand four hundred and sixty-one, shall apply also to any company organized for the purpose of supplying the public and private buildings, manufacturing establishments, streets, alleys, lanes, lands, squares and public places with electric light and power or automatic package carrier; and every such company shall have the same powers, except those given by said section three thousand four hundred and sixty-one, and be subject to the same restrictions, as are herein prescribed for magnetic telegraph companies. Provided, however, that in order to subject the same to municipal control alone, no person or company shall place, string, construct or maintain, any line, wire, fixture or appliance of any kind for conducting electricity' for lighting, heating or power purposes through any street, alley, lane, square, place or land of any city, village or town, without the consent of such municipality; and this inhibition shall extend to all levels above and below the surface of any such public ways, grounds or places, as well as along the surface thereof; but this inhibition shall not be applicable to any rights which have heretofore been received and exercised through proceedings of any probate court. Any person or company violating any portion of the inhibition aforesaid shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, be fined in any sum not less than one hundred and not more than five hundred dollars. The means thus created for enforcing said inhibition shall be held to be only cumulative to any other lawful means open to the municipality by way of injunction or otherwise; and this act shall apply to actions and causes of action or proceeding named in section seventy-nine of the Revised Statutes, except such as may be pending on error, and not on appeal, in any circuit court of the state.”

The substance of this section now appears in the General Code in Sections 9192, 9193, 9194 and 12644.

By force of these statutes, therefore, permission is given to an electric light company such as the defendant to use the streets and public ways in a city or village, but such use is placed under municipal control, and can be had only with the consent of the municipality, subject to such conditions as it may see fit through its council to impose.

Under the provision of Section 9178, G. C., which applies to telegraph or telephone companies, where the company fails to agree with the municipal authorities of the city or village as to the mode of use of the streets and public ways it is authorized to bring a proceeding in the probate court to procure from such court an order or judgment directing in what mode its line shall be constructed. This provision has been upheld in Zanesville v. Telegraph (& Telephone Co., 64 O. S., 67. But by the express provision of Section 9192, G. C., this proceeding is not applicable to an electric light company. And it has been held in Telephone Co. v. Cincinnati, 73 O. S., 64, that such proceedings in the probate court could not be had for the purpose of authorizing the construction and maintenance of underground wires and pipes or conduits for a telephone company, but that the consent of the city was an essential condition for their construction. In the opinion of the court, at page 81, the following language is used:

‘1 But taking the section of the statutes as a whole and considering the conditions imposed on the exercise of such right, it is not to be inferred that the municipal authorities are stripped of all power to finally determine any matter relating to the general subject. It will be remembered that by Section 2640 those authorities are given the control of the streets and are required to keep them open, in repair, and free from nuisance. It is to be noted, also, that by no statute is power given any tribunal to authorize permanent structures upon or in, or the use of any street, which will incommode the public, the dominant purpose being to facilitate public travel and transportation. Railway Co. v. Tel. Assn., 48 O. S., 390; L. S. & M. S. Ry. Co. v. Elyria, 69 O. S., 414. It seems, therefore, clear that there is no power in the probate court to authorize or direct the construction of conduits in subways under the streets of a city in the absence of consent by the municipal authorities. ’ ’

This principle has been recently re-affirmed in the case of Telephone Co. v. Columbus, 88 O. S., 466. The court in its opinion, at page 468, using the following language:

“It has been decided by this court that ‘the statutes of Ohio do not confer power on the probate court to grant to a telephone company the right to put its wires and apparatus in conduits under the streets of a city in the absence of consent by the municipal authorities.’ Queen City Tel. Co. v. City of Cincinnati, 73 O. S., 64.”

It is contended, however, by the defendant, that the consents of abutting property owners provide sufficient authority for the defendant to lay, construct and maintain said wires and conduits in the streets. ■ There is no question but that an owner of abutting property has a certain right to the use of the land in a public street for access, light and air to his property, and possibly other uses not inconsistent with the rights of the public for travel and other purposes-of such highway. This interest of adjoining lot owners in the street on which their land abuts has been recognized as a property right which is protected by the Constitution, by our Supreme Court, in numerous cases Crawford v. Delaware; 7 O. S., 459; Street Ry. v. Cumminsville, 14 O. S., 523; Railroad v. Williams, 35 O. S., 168; Daily v. State, 51 O. S., 348; Callen v. Elec. Light Co., 66 O. S., 166.

The question of the right of the owner or owners of property, located on opposite sides of the street, to connect such property for their own purposes by an electric wire, has been considered in the cases of Henry v. Cincinnati, 1 C.C.(N.S.), 289, and Butler v. Cincinnati, 2 C.C.(N.S.), 376. But it is not necessary to consider or discuss that question in this case, as no property owner is a party here, and the defendant does not claim on behalf of any property owner, or that in laying, constructing or maintaining any of the wires or conduits it represented any property owner as his agent, or acted for or on behalf of him, but insists that the wires and conduits were laid and maintained by it with the consent or permission of the property owners for the purpose of its business. The defendant, therefore, relies upon the consent of the abutting property owners, which it insists can be taken instead of the consent of the municipal authorities. Whatever the rights of a property owner on his own behalf might be, there is no authority of law to substitute his consent for that of the city. The evidence that has been introduced goes only to the extent of a permission or consent on the part of the owners of property, to the construction and use of such wire but does not in any case pretend to operate as a grant or conveyance of property rights in the street or alley to such defendant.

Defendant also claims that the enactment by council of the general ordinance No. 4285, providing general terms and conditions regulating the business of electrical illumination within its corporate limits, has in effect provided a general consent to all such companies and exhausts the subject of regulations and conditions, and that any company can, by observing the terms of such ordinance in all particulars, carry on such business with all necessary rights in the public highways. This ordinance is found as Section. 647 on page 265 of the Code of Ordinances of Cincinnati (1910-1913), and also appears at page 407 of the Code of Franchises of the city of Cincinnati (1914). It lays down general provisions which shall be applicable to all such companies, and the first paragraph of the ordinance shows, in its terms, that it is not intended to be a general grant to all companies, but simply states general provisions that shall apply to special grants. .The opening paragraph is as follows:

“That whenever permission is by ordinance granted to any person, company or corporation to engage in the business of electrical illumination, it shall be under the following express terms and conditions.”

This ordinance would not prevent council, in making any particular grant, from imposing any other provisions and conditions not found therein, in addition to or different from those of the ordinance. This ordinance can not be construed as granting a consent to the defendant company within the terms of the statute.

Counsel for defendant have argued with great ability that the word “through,” as it appears in G. C., 9193, should be construed so as not to include “across,” but rather to inhibit the laying of wires “along” the streets and alleys of the city, unless the terms of the section are complied with. In the interpretation of a statute words in common use are to be construed in their natural, plain and ordinary signification. And if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation (Slingluff v. Weaver, 66 O. S., 621, 627). The word “through” includes both “along” and “across.” It is defined in the Century Dictionary: “from one side or end to the other side or end”; and in the Standard Dictionary: “from one end, side or surface to the other.” The statute must, therefore, be construed to apply to such wires and conduits as those which have been laid and constructed by the defendant.

It is further argued on behalf of defendant that the city, by the refusal of its council to act upon the application of the defendant for its consent to the laying of the wires and conduits mentioned in the petition, has practically nullified the provisions of Section 9171, G. C., which prohibits exclusive rights, and that therefore the plaintiff does not come into court with clean hands; that the plaintiff has not shown any injury to itself or to the public; that the Union Gas & Electric Company is the moving spirit in this litigation and any damage to it should not be considered; and that the plaintiff has entirely failed to establish that clear and unexceptional right necessary to entitle it to the extraordinary remedy by injunction which it seeks. . >

The answer of the defendant admits that the action was brought at the direction of the council of the city of Cincinnati, and avers that the council has granted the right to different firms, persons and corporations to cross the streets and alleys of said city, above and below the surface thereof, with wires and conduits for the conveyance of electrical current and for other purposes for their own and for commercial uses and these facts appear from the evidence.

The care, supervision and control of the streets is vested in council by Section 3714, G. C., and Section 9194 gives express authority to enforce the terms of Section 9193 by way of injunction in addition to the penalty provided by Section 12644, G. C., and other remedies that might be authorized by law. The fact that the Union Gas & Electric Company may have vital interest in the matter and may have exerted potent influence upon the members of council in refusing to grant the desired consent to the defendant company and also had its counsel assist the city solicitor in the presentation of this case, does not change the legal status of the city of Cincinnati in its right to insist upon the enforcement of this statute. The question as to whether consent of the city should be given to the defendant is a matter of legislative policy to be determined by the council and officers of the city, and is not a judicial question for the determination of the court.

If the action of council in refusing to grant consent to a company to lay wires and construct conduits for electric lighting, results to the disadvantage of the citizens and property owners of the community, that is a matter that can be rectified by a change in the personnel of such council and public officials. Where the legislative authority has exercised its power in a manner that might be considered unwise or against the interest of the city or its citizens, the judiciary are not for that reason authorized to intervene and substitute the views of the court for those of the municipal authorities. The determination of whether consent should or should not be given, is vested .in the council of the city. It has refused such consent, whether wisely or unwisely, and no fraud or improper methods on its part having been shown by the evidence, it within the power of the city to insist upon its authority under the statute, and rather than take the matter into its own hands by removing the wires and the conduits or undertaking to cut them off, it has very properly submitted the question of its rights in the premises to the court by asking for an injunction. The law having provided that no such wires and conduits shall be laid or constructed without the consent of council, the injunction sought must be allowed.


source: Caselaw Access Project

license: Public Domain

text:
    WHEN THE DEFENSE OF RES ADJUDICATA IS AVAILABLE.
    Circuit Court of Cuyahoga County.
    Abbie A. Johnson, Administratrix, v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co.
    Decided, December 22, 1905.

      Res Adjudicate a Defense Only Where Issues are Identical — Action for Wrongful Death Not Barred hy Prior Action for Personal Injury, When.

    Although it appears that an action for wrongful death is based upon the same state of facts upon which a former action by decedent for personal injuries was based, the doctrine of res adjudicata does not apply unless it further appears that the issues are identical in the two actions.

      Myer & Mooney, for plaintiff in error.

      E. A. Foote, contra.
    I-Ienry, J.; Winch, J., and Marvin, J., concur.
   Judgment in this case was rendered for the defendant railway company upon the pleadings. It was an action for death by wrongful act and the defense successfully raised below was that of res adjudicate. The decedent had in his lifetime brought suit for the injuries which, pending the action, are said to have resulted in death. The action was reviewed and terminated in a verdict and judgment for defendant. The answer in this case sets up, and the reply admits, that the negligent injury complained of in the former action is the same as that averred in the petition here. But it is not alleged in this action what matter of defense was averred by the answer in the former action. For aught this record shows the issue in the former action may have been raised by reply to an answer which confessed and avoided the averments of the petition-therein. It may, for example, have turned upon an issue properly joined as to whether the decedent had not, for value, covenanted not to sue his employer for a certain period after his injury not then elapsed, and not to sue him at all in case he should then be recovered and restored to his position. It is enough to show the possibility of such an issue in the former action. We can not speculate as to what the issue in fact was. The pleadings here assert merely the identity of the causes of action, not the identity of issues. But the rule-of res adjudícala can be applied only where the issues are identical. Koelsch v. Mixer, Admr., 52 O. S., 207, 211.

For this error in rendering judgment on the pleadings against the plaintiff in error, said judgment is reversed and the cause remanded.


text:
    RAILWAY OWNERSHIP INCLUDES ALL APPURTENANCES.
    Circuit Court of Cuyahoga County.
    The Lake Shore & Michigan Southern Railway Company v. Myrtle B. Kearns, Administratrix.

    Decided, January 12, 1906.

      Pleading — Admission of Ownership of Railroad Includes Appurtenances.

    An admission by a defendant that it owns and operates a certain steam railway as alleged in the petition includes an admission of the ownership of side-tracks, cars and appurtenances mentioned in the petition.

      Brewer, Cook & McGowan, for plaintiff in error.

      H. Remington, E. J. Finney and G. W. Dille, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.

       Affirmed without opinion, L. S. M. S. Ry. Co. v. Kearns, 75 Ohio State, 605.

   This was an action for death by wrongful act, brought by the administratrix of the estate of James M. Kearns, an employee of the Lake Shore & Michigan Southern Railway Company, who was killed at a point between Coe and Kirtland streets in the city of Cleveland, August 31, 1902, while riding as a brakeman on an east bound freight train. It is supposed that he was sitting in the open doorway of a car, facing the north, and it is clear that he was injured by the projecting door of a freight car standing on a side-track next north of the main track on which his train was moving. The railway company here seeks a reversal of the judgment recovered against it by the administratrix, because of divers alleged errors in the record.

Complaint is made, first, because the trial judge asked witness Broughan, the train conductor, regarding the car with the projecting door, “was that owned and operated by the L. S. & M. S. Railroad?” and also because the witness was allowed to make answer and affirm that it was. It is said, however, that this question and ansAver, however erroneous, could not be prejudicial, because they relate only to a matter admitted by the pleadings to be true. We think this is a complete answer. The petition, after alleging defendant’s corporate character, avers that it “owned and operated a steam railroad, known as the L. S. & M. S. Railway, passing through” the locality where this casualty happened, and where as it further avers, “another track of defendant lay parallel with the one upon which said train was running and immediately north thereof.” The petition further alleged that the car with the projecting door was placed on that track by defendant.

The answer, by its first defense which is concisely phrased, denies generally everything in the petition which it does not expressly admit. But among the admissions is this, “That the defendant is a corporation, OAA'ning and operating a steam railroad, as alleged in said petition.” This is a plain admission of the OAvnership and operation by the L. S. & M. S. Railway Company of the railroad described in the petition and including those usual appurtenances' of train, side-track, cars, etc:, therein mentioned. Had the railway company desired to except from its admissions some or all of these usual appurtenances so mentioned in the petition, its answer should have particularly pointed out such exceptions. We think the pleadings clearly admit that the car Avith the projecting door was oAvned and operated by the L. S. & M. S. Railway Company, and that the answer of the witness to the same effect was not prejudicial error.

It is claimed, secondly, that the proof fails to show that this car or door was defective. We think, however, that this is a plain inference from the fact, which was clearly proved, that the door projected out from the side of the car at an angle of forty-five degrees.

A third assignment of error is that the evidence fails to disclose any notice to the railway company of such defect; but Section 3365-21 of Bates’ Annotated Ohio Statutes dispenses with affirmative proof of such notice in such cases.

The plaintiff in error urges, fourthly, that there is an utter want of proof that the decedent did not know of the defect and had no means, equal with his employers of knowing it. This proof was,.of course, indispensable (Hess, Admx., v. The Columbus. Sandusky & Hocking R. R. Co., 58 Ohio St., 167, 170). We think, however, that such proof was supplied as fully as the nature of the case would admit, or require. There is no proof as to how long the defect had existed or been visible, but it is highly improbable that the car door should have been thus projecting toward, and so dangerously near, the main track- of this railroad for any considerable length of time without being noticed and reported or removed by the employees on passing locomotives or trains. The only opportunity tha-t Kearns could have had of seeing it, so far as we can infer from the record, was while passing by on a train as on this occasion. The opportunity would probably not be so good while passing in the opposite direction on 'the other main track. At any rate, we think it fair to infer that this was an extremely dangerous condition and had not persisted long enough to afford him opportunity to see it, or, at least, that if he had seen it, the instinct of self-preservation would have impelled him to avoid it. It was not a case of taking chances, but of exposure to certain injury; and we think the jury might well have been instructed to find from all the evidence that the decedent had neither actual knowledge nor means equal with his employers of knowing of this defect. AVithout deciding that the court’s charge upon this subject was correct, we hold that since the proof requires the finding necessarily implied in the jury’s'verdict, there can be no prejudice in the instruction which they received.

It is claimed, lastly, that the agreement, as to watchfulness at all times and special care while on the sides or tops of moving ears, which Kearns made when he was employed, was violated by him, and that he was guilty of contributory negligence in failing to see this danger and in needlessly exposing his body beyond the side of the ear when not required to do so. And it is claimed that the court erred in what it charged and what it refused to charge upon this subject. AVe think there was nothing in his employment or his agreement requiring him to keep a lookout ahead on this occasion or forbidding him to sit or stand in the doorway of a car, if that is ivhat he did. The presumption is that he was not negligent and there is absolutely nothing in the evidence to overcome that presumption. The judgment is affirmed.


text:
    INJURY FROM DRIVING INTO A TRENCH WHICH HAD BEEN DUG BESIDE A COUNTY ROAD.
    Court of Appeals for Hamilton County.
    Josephine Whitney v. Bernard Niehaus and The Board of Commissioners of Hamilton County.
    Decided, February 13, 1915.

      Negligence in the Repair of County Roads — -Liability of Commissioners in Their Official Capacity — Rule of Respondeat Superior Applies — Pleading.
    1. The liability of county commissioners in tbeir official capacity, for damages resulting from negligence or carelessness in keeping roads under their jurisdiction in such a degree of repair as to render them reasonably safe for travel, is not limited to improved roads, but includes any public, state or county road or bridge.
    2. While it is true that notice of a'defect in a public road must be averred where due to the wearing away of the surface and not directly caused by any act of the public authorities, an allegation of notice is not necessary where the defect is one in the original plan or in the construction of the work; and where a negligent act in the improvement or repair of a road which has resulted in injury is averred, the petition is good against demurrer.
    3. Failure to allege that the defect complained of was in the improved or traveled way does not render a petition in an action for damages open to demurrer, where it is averred that a trench had been dug along side of the road within its limits and, at the point of intersection with another road, across its face.
    4. Where^the work which is being done in the improvement or repair of a county road is inherently dangerous, the county commissioners can not shift the responsibility for negligence upon the contractor, but the rule of respondeat superior applies.

      Robertson -& Buchwalter, for plaintiff in error.

      John V. Campbell and Charles Groom, Prosecuting Attorneys, contra.
    Gorman, J.; Jones (E. IT.), P. J., and Jones (Oliver B.), J., concur.
   This is a proceeding in error to reverse the judgment of the court of common pleas in sustaining a demurrer of the defendants, the commissioners of Hamilton county, to an amended petition of plaintiff, and dismissing said defendants at tlie plaintiff’s costs.

Briefly stated, the plaintiff’s petition and amended petition counted on negligence of the defendants as joint tort feasors, whereby she suffered grave personal injuries while driving a horse and buggy along the Lawrenceburg and Harrison road in "Whitewater township, Hamilton county. After setting out the official capacity of the commissioners, and that said road, was at the time of the happening of the events related a county road in Hamilton county and within the jurisdiction and under the control of said commissioners, plaintiff further states that the defendants (that means the commissioners and Niehaus) were on and prior to March 17, 1912, repairing and improving said county road by grading, draining and placing macadam, rock and other material thereon, at a point where the Whitney road, a township road, intersects said county road; that the defendants by their agents and employees negligently, wrongfully and unlawfully caused to be dug a ditch about six feet wide and two feet deep within the limits of said ■ county road at its said intersection with and across the face of said township road; that-said defendants in disregard of their duty negligently and wrongfully permitted said ditch to remain open, unguarded, unprotected and unlighted during the night of March 17, 1912, by reason whereof said defendants negligently and wrongfully permitted said county road at said place to be in bad repair, unfit and unsafe and inherently dangerous for use in public, travel. Plaintiff further avers that she was riding in a buggy drawn by a horse driven by her husband along said county road on said night, and while turning to the right to enter upon said township road the said buggy fell into said ditch on said county road, thereby throwing her violently out of the buggy and injuring her severely about her body. She prays for damages in the sum of $5,000.

A demurrer was interposed below to this amended petition by the defendants, the commissioners of Hamilton county, on the ground that the averments thereof did not state a cause of action against the demurring defendants.

The demurrer was sustained, and the plaintiff not desiring to plead further as to the defendant commissioners, they were therefore dismissed with their costs.

The case is now in this court on error, and the plaintiff in error asks for a reversal of said judgment, on the ground that the demurrer should have been overruled and not sustained. At the outset it is claimed by the prosecuting attorneys, who officially represent the commissioners, and conceded by counsel for plaintiff in error, that the commissioners are not liable for these injuries of plaintiff, however negligent they may have been unless there is a liability imposed by statute.

Section 2408, General Code, does impose a liability on the commissioners of a county in their official capacity for damages received by reason of- their negligence or carelessness in not keeping any public, state or county road or bridge in proper repair. This law was enacted in 1894, prior to which time no liability attached to the board of commissioners for any injuries or damages sustained by reason of its neglect to keep the highways or bridges under its control in proper repair. No right of action at common law could be maintained for such negligence, and the liability being statutory the statute must be strictly construed in favor of the county officials.

Now it is contended by counsel for defendants in error that the amended petition of plaintiff is fatally defective and open to demurrer, because of the failure to aver first that the county road in question was an improved road; secondly, that the board of commissioners had notice of the defective condition, either actual or constructive; thirdly, that it fails to aver that the ditch or trench complained of was in the traveled portion of the roadway; and, fourthly, that the doctrine of respondeat superior does not apply to negligent acts of an independent contractor performing work on the public roads under contract with the county commissioners, and that although the amended petition fails to aver that the defendant Niehaus was acting as an independent contractor, nevertheless the court must take judicial notice of the fact that, under the statutes, the commissioners had no power or authority to make improvements or repairs of a county road except by letting the work to an independent contractor, and therefore Niehaus must have been employed as an independent contractor for whose acts of negligence in the prosecution of the work the commissioners are not responsible, assuming that he was negligent and that his negligence was the proximate cause of plaintiff’s injuries-.

In view of the fact that this proceeding is one to review the action of the court below, we have considered the claims of counsel as though presented in the order made on the arguments on the demurrer in the court of common pleas.

As to the first contention of counsel for the commissioners, the court believe it is sufficiently answered by calling attention to the language of the statute, Section 2408, which imposes a liability on the commissioners in their official capacity for damages received by reason of their negligence or carelessness in- not keeping in proper repair any public, state or county road or bridge. The liability is not limited to damages arising from failure to keep in repair improved county roads only; and therefore no averment that the road was an improved county road was essential. Furthermore, the question of whether or not this Lawrenceburg and Harrison road was an improved or unimproved road is one that could be determined by the proof, and if the board of commissioners are liable for damages on improved roads only, then the question might again be raised on the trial under the evidence; or the commissioners may plead by answer that the road was an unimproved one for the repair of which no duty rested upon them. It is averred that the defendants were, at the time of the injuries sustained by plaintiff, engaged in improving and repairing said road, and this together with the averment that it was- a county road under the jurisdiction and control of the commissioners, together with the language of Section 2408, General Code, appears to us to be sufficient to make the amended petition proof against the demurrer as to this point urged.

As to the absence of an averment of notice actual or constructive, to the commissioners, of the existence of the ditch, it is true that for an ordinary defect in the highway caused by the wearing away of the surface and not caused by an act of commission of the public authorities, notice of the existence of the defect must be averred, or allegations must be set out showing the length of time the defect has existed so that constructive notice may be inferred; but where the defect is in' the original plan of the work or in the construction by the public authorities, no notice need be averred, as the public authorities are, in such cases, the original wrong-doers. See, Alliance v. Campbell, 17 C. C., 595 (affirmed without report, 53 O. S., 650); Village of Groveport v. Bradfield, 2 C. C., 145; Commissioners v. Mutchler, 137 Ind., 58; Rasch v. Dodge County, 43 Neb., 508.

The amended petition, and the petition, aver in the ease at bar that the defect in this road was caused by the negligent act of commission of the commissioners in the original construction of this work of improvement and repair.

The third claim of counsel for defendant is that the amended petition fails to state that the alleged defect, the ditch or trench, was in the traveled portion of the roadway and that inasmuch as no liability attaches to the commissioners for defects outside of the traveled way, the amended petition fails to show a case of actionable negligence.

It is true that our courts have held in several cases that the board of commissioners are not liable for injuries to persons or property caused by defects in the county or public roads outside of the improved or traveled way; but in the case at bar it is averred that this ditch or drain was dug along the side of the county road within its limits and at a point where the Whitney road intersects it, and across the face of the said Whitney road. Now the public traveling along the Whitney road had a right to enter this county road at the terminus of the township road, and if a ditch, or pitfall was constructed across the terminus of-this township road at the place where it intersects the county road, it would appear to be in a portion of the traveled way of this Lawreneeburg and Harrison road; it was apparently on that portion of the traveled way of said road which had to be passed over by those who entered or passed off the Whitney road; it was not at a place where no one would ordinarily have occasion to drive off to the side of the road, and therefore we believe that the amended petition in this regard shows that the defect was in the traveled way of this road.

As to the claim that the rule of respondeat superior does not apply to the county commissioners, it may be said that neither the amended petition nor the petition disclose that this ditch or trench was dug by an independent contractor, but so far as the averments of the pleadings disclose, the work was being prosecuted by the commissioners. It was held by this court in the case of Commissioners of Clermont Co. v. Judd, on error to the common pleas court of Clermont county, that the board of county commissioners are liable in their official capacity for damages resulting from their negligence in failing to keep a county road in proper and sufficient condition for reasonably safe use by the public, and if obstructions are carelessly or negligently placed thereon either by the county commissioners, their agents or employees, thereby blocking or obstructing the traveled portion thereof, it would be a failure to perform their duty to keep the road in repair, and would render the county commissioners liable for the injurious consequences resulting from such failure of duty. . In this case the commissioners of Clermont county were repairing a portion of the Ohio Turnpike and for that purpose had deposited along the traveled portion of said road a pile of screenings which caused an obstruction in the road and into which the plaintiff Mabel Judd ran while driving a horse and buggy along the road in the night time, there being no barriers, lights or safeguards to warn her of the obstruction. She recovered for injuries sustained by this accident, and the judgment was affirmed by this court, and by the Supreme Court without report. Unfortunately the opinion of the Court of Appeals of Clermont County was not published, but it is agreed by coum sel in this case, and was likewise admitted by counsel in the Judd ease, that a portion of this opinion is correctly set out in the brief of counsel for Mabel Judd in case No. 13935, Supreme Court of Ohio, a copy of which has been submitted to us by counsel in the case at bar. We are unable to see any distinction between an obstruction consisting of a pile of screenings in the roadway and a ditch or trench dug in a part of the traveled way, and believe that the rule laid down in the Judd case is decisive of the point raised by counsel for the commissioners in this case as to the rule of respondeat superior. Furthermore it is a sound rule of law that where the work done is inherently dangerous, as it is alleged in this ease it was, the owner can not relieve himself from liability by committing the work to an independent contractor. See Cov. & Cin. Bridge Co. v. Steinbrock, 61 O. S., 215.

The court is of the opinion that the ruling of the common pleas court in sustaining the demurrer to the- amended petition was erroneous, and the judgment dismissing the defendants the board of county commissioners of Hamilton county is prejudicial to the plaintiff in error, and said judgment is hereby reversed.

It is but fair to the judge who passed upon the demurrer to the amended petition to say that, after his decision, his attention was called to the case of Commissioners of Clermont Co. v. Judd, supra, which was affirmed by the Supreme Court on June 7, 1913, without report; and after that case was called to his attention a motion was interposed for a rehearing of the case and to set aside the entry sustaining the demurrer. In the opinion written by the trial judge below he stated among other things that in his opinion which he had previously rendered in this case (sustaining the demurrer to the amended petition) the construction he had given to the statute (Section 2408) was seemingly narrow, but that he thought he was following the rule laid down by the Supreme Court in the case of Ebert v. County Commissioners, 75 O. S., 474, but that it now seemed to him that the Supreme Court did not intend by the language it used in said case, at page 480, to hold that the county commissioners shall not be liable for negligence and carelessness in the act of repairing the county road. The trial judge further said that it was his opinion that justice to the plaintiff required, in view of the fact that the petition is based upon an alleged negligence of the county eommisioners while, engaged in repairing the county road, that the entry sustaining the demurrer should be' set aside and that the demurrer, upon a rehearing, should be overruled.

Unfortunately for the plaintiff in error in this cáse this conclusion was reached by the trial judge after the expiration of the term at which the entry was put upon the record sustaining the demurrer to the amended petition, and inasmuch as the trial court had no power or jurisdiction to set aside a former judgment or entry made at a previous term, be was unable to give force and effect to this last conclusion upon the demurrer to the amended petition.

For the reasons stated herein, the judgment of the common pleas court will be reversed and the cause remanded for such proceedings as are authorized by law.


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    COMPENSATION OF SCHOOL TEACHER FOR JANITOR SERVICES AND FOR TEACHING ADDITIONAL DAYS.
    Court of Appeals for Pike County.
    Board of Education of Benton Township v. Parker, an Infant.
    Decided, June 26, 1913.

      Schools — Action by Teacher for Services as Janitor — Also for Services in Teaching to Malee up for Holidays.

    Without any agreement with the board of education therefor, a teacher performed services as janitor in connection with his school duties. Having dismissed school on certain holidays during the school term he substituted and taught other days, upon requirement of the board, “to make up for said holidays.” Held: He can not recover . as upon a quantum meruit for the janitor services; not for the prorated amount of his stipulated monthly salary for the excess days taught. Third proposition of syllabus in Reid v. Board of Education, 6 N.P.(N.S.), 526, disapproved.

      John A. Eylar, for plaintiff in error

      Daugherty & Moore, contra.
    Jones (Thomas A.), J.; Walters, J., and Sayre, J., concur.
   This action is in the court of appeals on both petition and cross-petition in error from the court of common pleas.

The petition of the infant, Earl Parker, contains two causes of action. In the first he alleges he was employed to teach school for the school year of 1911-1912 and that he taught the same for eight months; that defendant failed and neglected to employ a janitor, and that he was compelled to and did the janitor work in connection with his school duties. He seeks judgment for the reasonable value of such janitor work.

The second cause of action alleges the employment, for the term of eight months, at the rate of forty dollars per month; that he dismissed school during the term for five holidays, and that thereafter the defendant compelled him to teach, and that he did “teach school for five days to make up for said holidays.” He asks judgment for ten dollars. This cause of action contains no allegation of reasonable value. The defendant interposed a general demurrer to the petition and filed an answer which alleged that plaintiff presented no bill for his services and that he waived his claim of compensation for services.

The ease was tried to the court upon an agreed statement of facts. The agreed statement substantially contains the facts alleged in the petition; it, however, states that the contract did not require the teacher to render janitor services; that the contract was “for the actual time he was employed in the school room and that plaintiff did not present his claim before bringing his suit.”

The court below found for the teacher as to the janitor service, and against him for the extra service in the second cause of action set forth.

Section 7690, General Code, empowers boards of education to employ janitors and to fix their salaries.

Section 7707, General Code, provides that no teacher shall be required to do janitor work, except as mutually agreed upon by special contract, and for compensation in addition to that received by him for services as teacher.

The contract in question was silent as to the janitorship.

The claim for services are founded upon a quantum meruit arising from an implied contract. This claim is not well founded. The statute expressly provides that contracts for janitor services must be mutually agreed upon by special contract, and thereby excludes the application of implied contract in this particular case.

Counsel for the teacher rely upon the ease of Reid v. Board of Education, 6 N.P.(N.S.), 526. We agree with the learned judge in that case in the application of liberal construction in order to carry out the evident policies of our school laws and to' conserve, the interests of the school youth of our state. But in the application of this rule of construction the learned judge failed to consider other important considerations in the case.

In the first place, it may be said, if the statutes' were open for construction, the interests of the public are safeguarded in cases of this kind by Section 7610, General Code. This section provides that if a board of education of any district fails- to provide school privileges for the youth of the district or to provide equitable school advantages for the youth, the county commissioners, upon being advised thereof, “shall perform any or all of such duties and acts, in the same manner as the board of education by this title is authorized to perform them.”

In the making of contracts and in administering public funds the Legislature has seen fit- to restrict its various agencies by acts limiting' their powers. While the rule of liability upon implied contracts may be generally conceded, it needs no citation of authorities in our own state at this time to support the proposition that not only are the powers of boards of this character strictly construed but that when their exercise are required to be performed in a certain manner that manner must be strictly followed.

Not only does the statute particularize that contracts of this kind, between teacher and board, must be mutually agreed upon, thus excluding all idea of an implied contract, but another restrictive statute is- met in the making of certain enumerated contracts and employments by boards of education. This section is 4752, General Code, providing that in resolutions employing janitors a public roll call and a record of the yea and nay votes must be made; that “in all cases- such roll call and record shall be complied with,” In an unreported case of the Supreme Court from Nocking county a teacher was not allowed to recover for his services, though fully rendered, because that feature of the statute had not been complied with. Board of Education of Green Tp. v. Brown, an Infant, 81 Ohio St., 528.

In holding a right of recovery on this issue the lower court erred.

Section 7687, General Code, provides that teachers may dismiss their schools on holidays without forfeiture of pay.

The second cause of action is not based on the reasonable value of the services, but on a right to recover for five days’ services, as teacher that he was compelled to teach in lieu of the holidays. Much of what was said as to his right of compensation as janitor applies here. Between teacher and board, contracts of employment are by statute express and are to be made in compliance with its provisions.

The teacher was not required to teach the five extra days and he had a right to recover his full salary without any substitution therefor. The agreed statement is that “plaintiff’s contract was for the actual time he was employed in the school room.” This statement is rather confusing; but when taken in connection with the other facts agreed on, it appears that the board, construed it as a requirement to teach the full time, and under their compulsion he taught the extra five days.

It is apparent that there was no express' agreement or understanding that the board was to pay for these services, and it is evident that the plaintiff knew that the board did not expect to pay therefor. Under the facts stated, there was no contract, either express or implied, but the services' rendered were gratuitous. C., H. V. & T. Ry. Co. v. Gaffney, 65 Ohio St., 104.

The judgment of the common pleas court as to the first cause of action is reversed, and judgment will be rendered in favor of plaintiff in error.

Judgment reversed.


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    PROSECUTION UNDER. THE SALARY LOAN ACT.
    Court of Appeals for Franklin County.
    P. L. Andrews v. State of Ohio.

    Decided, October, 24, 1914.

      Excessive Assignments of Wages — Construction of Salary Loan Act With Reference to — Partial Assignments Valid — Evasion in Statement of Amount Due — Section 63J/S-1, et seg.

    1. Averments to tbe effect that the accused is engaged in a certain line of business in accordance with a state law and also charging him with a specific oHense against said law, are reconcilable.
    2. The taking of an assignment of wages for three years amounting to approximately $3,00.9, as security for a loan of $35, violates both the manifest purpose and the express provisions of the salary loan law.

      Earnhart & Bates, for plaintiff in error.

      Eenry Scarlett, City Solicitor, contra.
    Allread, J.; Ferneding, J., and Kunkle, J., concur.

      Affirming Andrews v. State, 16 N.P.(N.S.), 59.

   The plaintiff in error was convicted in police court of a violation of the salary loan act. The judgment of the police court was affirmed by the common pleas court. The case is brought here on petition in error.

There is very little, if any, dispute as to the facts and the question is whether the evidence establishes an offense.

There is some criticism of the affidavit because it states as a preliminary fact that Andrews was engaged in the salary loan business in accordance with the state law and then proceeds to charge a specific offense against the state law. "We think these allegations may be reconciled. The former allegation was intended to state the general character of the business, while the latter was intended to state a specific act constituting an offense.

The offense disclosed by the evidence is based upon the averment of the affidavit that the plaintiff in error improperly and unlawfully filléd in a certain blank space in the assignment of salary and wages in the transaction in controversy by writing the word “all” before the words “dollars for services rendered and to be rendered by me within three years from the date hereof” instead of the proper and true amount of the loan which is alleged to be $36.15.

The evidence shows that Andrews loaned one Dixon $35 at the , time the assignment was given. Out of the amount of the loan was taken ten per cent, for expenses. The loan was made payable in thirty days with eight per cent, interest, and was permitted to run something like five months.

The printed blank for the assignment of the wages was filled up as averred in the affidavit by the writing in of the word “all” before the printed clause providing for the assignment of wages for three years. At the end of five months the assignment was sent to the employer and the month’s wages then due, amounting to something like $98 was paid to Andrews, who deducted the amount due him and paid the balance to Dixon.

The criminal provision of the salary loan act is found in Section 6, and is based upon any violation of the provisions of the entire act. Andrews had taken out a license and was therefore held to the regulatory provisions of the act in the conduct of his business. Sections 3, 4 and 5 of the act are chiefly involved.

It is contended on behalf of the plaintiff in error that the provisions of the act should be liberally construed in his favor. While it is true as a general proposition that doubtful provisions of criminal statutes are liberally construed in favor of the person charged with a criminal offense, yet this doctrine should not be carried so far as to destroy the efficiency and permit evasions of the plain purposes of remedial acts. The .business of making salary loans upon exorbitant charges and upon written assignments for larger sums than were required to compensate the loanor, called for legislation. That this business was within the police power and that the general purposes of the salary loan act are valid has been decided. We are, therefore, now dealing really with a construction of the terms of the act. Section 4 expressly prohibits the taking of a written assignment without the' blank spaces being filled in “with the proper names and figures.” “Proper names” as used in this section is defined in the latter part of the section. The meaning of the terms “proper figures” must be determined from the general scope of the act which was particularly specified in Section 5, fixing the limit of charges and making void all assignments which contemplates any payment in excess of the amount stipulated.

The purpose of the legislation underlying the provisions of this act was to simplify the salary loan business and make it impossible for the loanors to oppress the dependent class by exorbitant charges and by excessive assignments of salary. Here Andrews made the small loan of $35 and took an assignment of wages for three years amounting approximately to $3,000. If this transaction is to be Held legitimate, then the evident purpose of Section 5 of the salary loan act can be evaded and practically nullified. We think the taking of such exorbitant and excessive assignment of wages falls clearly within the manifest purpose, as well as the express provisions of the act.

Plaintiff in error contends that because of the accumulation of interest provided for in the note so authorized by the salary loan act, the exact figures could not be stated in the assignment and that, therefore, the accused should not be held for the failure to do an impossible thing. We think, however, the statement of the proper figures, in the written assignment in a transaction like the one at bar is not impossible. The amount was fixed at the time the loan was made and was capable of determination at the time the note became due or at any other period when the collection might be sought. The calculation of interest was only necessary to fix the sum total. The amount covered by the assignment in the present case was not a fair effort to determine the proper figures, but evidently was a subterfuge and an evasion of the statute.

Tt is also contended that a partial assignment of wages due at any particular pay day would not be valid security and could be refused by the employer.

Whatever may have been the rule in this respect under the common law, the employer as well as the employee is bound by public policy as expressed in the salary loan act. Assignments of salary and wages made in strict conformity to the salary loan act would be valid in favor of the loanor and against both the employee and the employer. There was, therefore, no necessity for the loanor to take an assignment of wages in substantial excess of the amount actually payable.

Finding no error in the record, the judgment of the court of common pleas and the police court are affirmed.


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    DUTY OF COURT WHEN INCOMPETENCY IS SHOWN IN MAKING A DEFENSE.
    Court of Appeals for Darke County.
    J. E. Stephenson v. The State of Ohio.
    Decided, January, 1915.

      Criminal Daw — Guaranty of a Fair Trial Not Fulfilled — When Incompetence is Shown in Conducting the Defense.

    Where a defendant in a criminal case states that he does not .desire counsel, and attempts to conduct the defense himself, and it becomes evident that he is mentally incapable of so doing, or understanding, the nature of the defense, it becomes the duty of the court to stop the trial and appoint counsel to defend; and' ■where this was not done, and the trial resulted in the conviction and sentence of the defendant, a reviewing court will reverse the judgment on the ground that virtually there was no trial.

      D. E. Mote and Robert T. Mattingly, for plaintiff in error.

      L. E. Kerlin and J. II. Porter, Prosecuting Attorneys, contra.
    Swing, P. J.; Jones (E. II.), J., concurs; Jones (Oliver B.), J., dissents.
   This case is here on error to the judgment of the Court of Common Pleas of Darke County,-and by consent of parties it was heard by the Court of Appeals of the First District of Ohio. The ease was submitted and argued on briefs, but.the court after considering the briefs and the record requested oral argument, which was had.

On the, 16th of September, 1914, plaintiff in error was convicted upon a'charge of embe®demein, and was sentenced tortile .penitentiary for a term of two-years.

This case is sui generis. It was tried by the prosecuting attorney of Darke county representing the state, and'the defendant representing himself. Before the trial defendant asked the court to appoint counsel to defend him, and the court thereupon selected one Theodore Shoekney, a member of the bar of said county. When the case came on for trial said attorney refused to act as counsel, and the record shows that the defendant not asking or desiring counsel, the case proceeded to trial, the defendant representing himself.

We think that the record shows that there was really no trial, so far as the defendant was concerned. It is quite evident that at the time of the trial the defendant was mentally incapable of comprehending the nature of his defense, and we think this fact must have been apparent to the court at the time. While defendant seems to have thought he was making a defense still it was really no defense, and, realizing this fact, we think the judge should have stopped the trial of the case and appointed some counsel to defend, so that the trial might have been properly carried on. We think that the law contemplates that a defendant should have a fair trial. The record in this case virtually shows that there was no trial, so far as the defense was concerned. Upon this broad ground we think the judgment should be reversed and a new trial granted.


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    UNCERTAINTY REGARDING RIGHT OF APPEAL.
    Circuit Court of Cuyahoga County.
    O. E. Lydrickson v. Charles Brenner et al.
    Decided, January 12, 1906.

      Judgments — Collection of Judgment Not Unjoined Unless Good Defense SKoioh — Appeal from Order Dissolving Restraining Order.

    1. To maintain an action to set aside a judgment it is necessary to allege and prove that there is a good defense to the cause of action.
    2. Whether or not error may he prosecuted to reverse an order of the court of common pleas dissolving a temporary restraining order, quaere.

      McGrath c& Stern, for plaintiff in error.

      J. C. Block and Feniger & Kastriner, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This proceeding in error is prosecuted to reverse an order of the Court of Common Pleas of Cuyahoga County granting a motion to dissolve a temporary restraining order allowed in an action to enjoin the collection of a judgment recovered by Brenner against Lydrickson before a justice of the peace. The motion to dissolve was heard on the petition alone, no affidavits or other evidence being offered. The action is still pending below.

We are in doubt whether the allowance of this motion is reviewable on error before final judgment in the court below.

The Superior Court of Cincinnati in general term has held that the dissolution of a temporary restraining order is not thus reviewable. The Cincinnati College et al v. The City of Cincinnati et al, 1 C. S. C. R., 255.

The Circuit Court of Hamilton County has taken the opposite view. The Chicago, St. Louis & Pittsburg R. R. Co. v. The City of Hamilton, 3 C. C., 455.

The Supreme Court apparently, still regards the question as an open one. Taylor v. Brick Companies et al. 66 Ohio State, 360, 366.

Inasmuch as we have reached a conclusion on the whole ease which makes it practically unnecessary to decide this question, we prefer to rest our decision upon the merits of the controversy, remarking, however, that the remedy by appeal, under Section 5226, is not fraught with doubt, and may perhaps afford an exclusive method of reviewing orders of this character.

The summons in the primary case was not endorsed with the amount sued .for, as required by Section 6475, Revised Statutes, but was in that respect blank. Tt is claimed that it is therefore void under Section 602, Revised Statutes. “Yoid” and “voidable” are terms not always used with precision, even in statutes. It was said by Martin, J., in the case of Robbins v. Clemmens, 41 Ohio St., 285, 286-7, that in case of actual service “by copy, accompanied by defects, in the summons, or its copy, the judgment might be voidable only,” since the defendant “has an opportunity to appear and take advantage of the irregularity before, or after, judgment. ’ ’ And it is claimed here that, inasmuch as there is a plain remedy at law, injunction will not lie. This is not true of void judgments. And in any event, whether the judgment here assailed be void, or, as we think, merely voidable, there is this prerequisite to the maintenance of an action to enjoin its collection, viz: that a valid defense to the action be shown to exist. Greene v. The Woodland Avenue Street R. R. Co. et al, 62 O. S., 67, 76.

Here the petition alleges that the plaintiff has such a defense, but it is not shown what that defense is. In the absence of other evidence on the hearing of the motion to dissolve the temporary restraining order, it was not error to grant such motion, and the order of the court of common pleas is therefore affirmed.


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    CONSTITUTIONALITY OF PROVISION FOR RECORDING CERTAIN CHATTEL MORTGAGES.
    Circuit Court of Cuyahoga County.
    Amos Burt Thompson v. The Chagrin Falls Electric Co. et al.
    Decided, January 19, 1906.

      Chattel Mortgages — When Valid if Recorded with County Recorder— Constitutional Law — Provision for Recording Certain Class of Mortgages Constitutional.

    1. Mortgages of real and personal property of telegraph, telephone or other like companies are valid when filed with the county recorder in counties in which the property intended to be covered thereby is situate, according to the provisions of Section 3256, Revised Statutes; and a mortgage so recorded operates as a valid lien upon the property of the company from the date the law became effective, notwithstanding the fact that the recording was at an earlier date.
    2. Section 3256a, Revised Statutes, providing for the recording of mortgages of the real and personal property of telegraph, telephone and other like companies with the county recorder, is not class legislation and- is constitutional.

      A. B. Thompson, for plaintiff in error.

      G. L. Gates, Carr, Stearns <& Chamberlain, E. P. Wilmot, White, Johnson, McGaslin & Cannon and Weed, Miller & Nason, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This is a consolidation of five appeals, by divers cross-petitioners, from the judgment of the Court of Common Pleas of Cuyahoga County. The original action was begun to foreclose a real estate mortgage given by defendant to plaintiff. The issues between the original parties have all been disposed of and the mortgage indebtedness paid.

During the pendency of the action below, A. D. Pettibone, as trustee of another mortgage given by defendant, intervened and procured the appointment of a receiver of all of the property of the defendant. The basis of fact justifying his intervention was that certain chattels covered by his mortgage were claimed by plaintiff to be fixtures and subject to the latter’s mortgage. Other unsecured creditors of the defendant thereupon intervened, claiming that the receivership was general, and involved the administration of defendant’s entire property as an insolvent for the benefit of all its creditors. The decree below provided for a sale of all the property, which was made accordingly, and the entire proceeds were ordered paid to the lien-holders. On account of a deficiency of assets, the general creditors were left without any relief, and several of them appeal.

Pettibone, trustee, in this court moves to dismiss all the appeals because the appellants are not proper parties to the action, alleging that their claims were not connected with the transaction which is the subject-matter of the original suit. This motion must be overruled. Whether the receiver was rightly or 'wrongly appointed, the appointment was in fact made, and the plant was operated by him at a profit, producing a fund which is in the hands of the court for administration. Appellants ar.e in fact parties with claims upon this fund. The circumstances of the appointment as shown by the transcript and original papers in the case, disclose, independently of the oral and other evidence adduced before us. that the receivership was intended by the court to be general, embracing the interest of all creditors secured and unsecured, and the decree holding Pettibone’s mortgage valid most vitally affected the interests of all unsecured creditors.

On the merits the issue here is as to the validity of Pettibone’s mortgage. It is claimed that it was a chattel mortgage and it appears that it was not filed with the township clerk of the township where the property was located and where the electric company had its principal place of business, but instead was recorded in the office of the recorder of Cuyahoga county.

Pettibone, trustee, relies however, first on the possession of the receiver being his possession, thus dispensing with the necessity of filing; but we have already shown that the receivership was as we think general, and therefore not to be construed as giving him who applied therefor such possession as he claims. Second, Pettibone further relies on Section 3256a, Revised Statutes, passed, it is true, after this record was made but providing that:

“Such mortgage (referring to those mentioned in 3256) of real property and personal when heretofore or hereafter made by a company organized to operate a line or lines of telegraph, telephone, district telegraph messenger service, or for the purpose of supplying gas or electricity- (or hot water), for lighting, fuel or other purposes, shall be held to be duly recorded if the same is recorded in the office of the recorder of deeds in the county and each of the counties in which the real or personal property intended to be mortgaged is situate or employed; and the mortgage so recorded shall be held to be a good and sufficient lien from the date of the filing of the same for record in each county where it is recorded as well upon the personal as the real property of the company.”

No question is made as to whether this act can validate the lien of a mortgage recorded before this act took effect. The language of the act and the absurdity of recording again a mortgage that is already recorded, warrant the conclusion that the act is in this sense and to this extent retrospective.

It is claimed, however, that it applies only to mortgages covering both real and personal property. But Pettibone’s mortgage in terms includes chattels affixed to the realty. These may be personalty as between the parties while they are at the same time and as to third parties parcel of the realty. And the basis of Pettibone’s intervention in this action is this very distinction. TIis mortgage is executed so as to comply with all requirements of a mortgage of both realty and personalty and we hold that it is a mortgage of both.

It is urged further that this act is class legislation and therefore void as in violation of Section 2 of Article I of the Constitution. We do not agree with this contention. The act points out a method of affording public notice of liens on the property of certain public service corporations that are peculiarly likely to have chattel property extending through various toráships of the same and different counties, and much of that property of an incorporeal nature the exact situs whereof by townships is often difficult to determine. We can not say, therefore, that the Legislature was not actuated by good reason in malting this discrimination. Under the authorities we can not hold this act unconstitutional unless we can affirm that no such reason exists.

We hold, therefore, that Pettibone’s mortgage constitutes a valid lien on defendant’s property. A decree may therefore be taken substantially as in the court below.


author: Henry, J.

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    PAYMENT OF SALARIES NOT LEGALLY COLLECTABLE.
    Circuit Court of Cuyahoga County.
    Robert C. Wright, Auditor, v. State of Ohio, ex rel George Linn.

    Decided, June 19, 1906.

      Equity Will Not Enjoin Payment of Salaries Equitably Due But Not Legally Collectable.

    Where county employees continue to perform labor after the law under which they were employed was so changed as to discontinue their employment unless they should be re^employed in a particular manner, the county commissioners having passed a resolution appropriating money to pay the sums to which they would have been eititled if they had regularly re-employed, equity will not interfere to enjoin such payment, but leave the parties as it finds them.

      Fred F. Klingman and G. M. White, for plaintiff in error.

      Stage ic& Armstrong, J. C. Mansfield and F. E. Kaiser, contra.
    Henry,. J.; Winch, J., and Marvin,. J., concur.

       Affirmed without opinion, State, ex rel, v. Wright, 77 Ohio State, 623.

   This is a proceeding to reverse the judgment of the court of common pleas in an action brought in favor of Section 1278,' Revised Statutes, by a tax-payer in the name of the state, to enjoin the auditor of Cuyahoga county from compensating three persons for services rendered as assistant county draughtsmen in making and correcting the tax maps of said county during the period of three months next succeeding the 26th day of April, 1904, when the law under which they had been appointed by the commissioner was so changed by “An act to amend Sections' 2789a and 2789Z) of the Revised Statutes of Ohio” (97 O. L., 489), as to discontinue their employment unless they should be re-employed by the county surveyor under authority from the commissioners.

They were not so re-appointed, and it is clear they could not recover in any actions brought by them. The commissioners have, however, passed a resolution reciting the foregoing facts, asserting that the county is. equitably bound to compensate these persons, and appropriating therefor the sums thus due to them, and it is alleged and admitted that payment will be made unless enjoined. A demurrer to the state’s petition was overruled in the court below, and defendant not desiring to answer, final judgment was rendered, perpetually enjoining the payment.

It will be observed that the county has all the time had the statutory authority to have work of this character done, and that the commissioners, before the amendment, had directed it to be done. Unless the law so requires, equity should not, under such circumstances, after the completion of the work, enjoin payment therefor. Many eases may be found where recovery of compensation has been denied to the party claiming it, where he has himself invoked the court’s assistance. Many others may be found where the courts have interposed to prevent the carrying out of illegal contracts. Still others exist wherein the payment of unconstitutional obligations, or those resting on no basis of statutory authority, has been enjoined. The decisions cited by defendant in error fall, we believe, into one or another of these classes, and none of them rules this ease. The circumstances alleged in the petition seem to warrant the application of the principle laid down in Buchanan Bridge Co. v. Campbell, 60 Ohio State, 406, that “courts will leave the parties to such unlawful transaction where they have placed themselves, and will refuse to grant relief to either party. ’ ’

We do not regard the alleged unconstitutionality of the original act or the alleged illegality of the original employment of these draughtsmen by reason of the provisions of Section 2834v as material here, where the services in question were rendered after the amendment'of the act although it is conceded that compensation .therefor could not be collected by action at law.

Here the statutory authority of counties to have work of this character performed is clear, the work has actually been done, the appropriation for paying for it has been made, and payment will be made unless affirmative relief can be granted upon principles of equity. Section 5 of Article X of the Constitution does indeed provide that “No money shall be drawn from any county treasury except by authority of law; but on the authority of Bridge Co. v. Campbell, above cited, we think affirmative relief can not be granted, and the judgment below will be reversed. ■

Henry, J.

After announcing the decision of the court in the case, T came to entertain serious doubts of its correctness; and, at my request, oral argument was allowed upon the defendant in error’s application for a rehearing. The amendatory act of April 26, 1904 (97 O. L., 489), is far from clear, and the county commissioners seem originally to have interpreted it as a mere continuation of the pre-existing authority of the county to employ map-makers, coupled, however, with the permissive power to appoint the county surveyor for that purpose and have him appoint assistants in such number not exceeding four, and at such pay, not exceeding $1,500 per annum, as the commissioner should determine. On the theory, apparently, that the new legislation was merely by way of amendment, and that the new powers conferred were merely cumulative and additional to those previously possessed, the board of county commissioners allowed the existing situation to continue for two or three months without change.

Without meaning to endorse this construction, my brethren are nevertheless of the opinion that, considering all the facts of this ease, the judgment already rendered, by this court herein ought not to be disturbed. • We are not free from doubt in the premises, and I may say, for my brethren as well as for myself, that we desire the force and effect of our decision to be restrained to the peculiar facts of this case.


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    CRIMINAL STATUTES MUST BE RESTRICTED TO THEIR DESCRIPTIVE TERMS.
    Circuit Court of Cuyahoga County.
    Charles Malata v. State of Ohio.
    Decided, May 15, 1906.

      Criminal Law — Statutory Construction — Molesting or Destroying Telephone Wires Not a Violation of Lato Regarding Telegraph Wires.

    1. A statute defining a crime or offense can not be extended by construction to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute.
    2. Section 3471, Revised. Statutes, does not extend the operation of Section 3461-3, Revised Statutes, so as to make the intentional injuring, molesting and destroying of telephone wires a criminal offense within the provisions of that statute.
    Henry, J.; Winci-i, J., and Marvin, J., concur.
   This proceeding in error was brought to reverse the conviction and sentence of plaintiff in error for unlawfully and intentionally injuring, molesting and destroying wires of the Cleveland Telephone Company, in violation of Section 3461-3, Revised Statutes.

This section is a part of the magnetic telegraph act (45 Ohio Laws, 34), which the state claims is made applicable to telephone lines by Section 3471, Revised Statutes. The latter section reads as follows:

“The provisions of this chapter shall apply also to any company organized to construct any line or lines of telephone; and every such company shall have the same powers and be subject to the same restrictions .as are herein prescribed, for. magnetic telegraph companies. ’ ’

It will be observed that this seetion does not in terms provide that the offenses defined in this chapter with respect to telegraph property shall be construed to in elude like offenses with respect to telephone property. And we. think the case is within the rule of State v. Meyers, 56 O. S., 340, that “A statute defining a crime or offense can not be extended, by construction, to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute. ’ ’

This would clearly suffice to dispose of the case before us, were it not for a dictum in Railway Company v. Telegraph Association, 48 O. S., 390, 423, that “without this section (3471) making the provisions of the chapter relating to telegraph companies expressly applicable to telephone companies, we think that the term ‘telegraph’ as a mode of transmitting messages of communications, is sufficiently comprehensive to embrace the telephone.”

Granting that this is the law with respect to the civil aspects of the legislation referred to, we can not overlook the principle that a criminal statute is not thus liberally construed, nor the fact that when Section 3461-4, Revised Statutes, was passed the telephone was wholly unknown and undreamed of. It is, indeed, a method of long distance communication analogous to the telegraph. But it is not merely a development of the telegraph. It is a novel and- revolutionary invention. And statutory crimes with respect to telegraph property can not, by mere construction, be so extended as to apply to telephone property.

The indictment does not contain allegations sufficient to bring it within the purview of Sections 6863, Revised Statutes, penalizing the malicious destruction of property in general.

It follows that the judgment below must be reversed for error in overruling the demurrer to the indictment upon the ground that it alleges no punishable offense under the laws of Ohio.

The further assignments of error are in our opinion unfounded. The use of the word “misdemeanor” in Seetion 3461-4, Revised Statutes, to characterize a crime punishable by imprisonment in the penitentiary is not in conformity with Section 6795, Revised Statutes, distinguishing and defining felonies and misdemeanors. But this circumstance does not, we think, violate the right o£ the party accused to be informed of the nature and cause of the accusation against him as provided by Section 10 of Article I of the Constitution of Ohio. It is true that the incidents of procedure are not altogether the same for misdemeanors as for felonies. But Section 3461-4 was enacted before that distinction ivas defined by statute; and, except perhaps as to the mere word itself, it is not repealed thereby, nor is its meaning rendered fatally uncertain. Though called a misdemeanor when enacted, the punishment provided for the offense is such as to bring it now within the definition of a felony.

The remaining claims of plaintiff in error we do not deem it necessary to refute.

The judgment below is reversed and the cause remanded with instructions to sustain the demurrer to the indictment.


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    FAILURE TO LOOK AT A RAILWAY CROSSING.
    Court of Appeals for Clark County.
    Erie Railroad Co. v. Harriet I. Dump, Administratrix.
    Decided, December 11, 1913.

      Death at a Railway Grossing — Failure to Look for Approaching Train at the Proper Time — Constitutes Contributory Negligence, When— Common Law Child of a Decedent — May be Made a Party and Plead, When.

    1. In an action to recover damages for death caused by negligence, where the petition avers that the decedent left no widow or children and that his father, mother, brother and sister are his next of kin, it is not error for the trial court to allow a child by a common law marriage to be made a party and file a pleading in which she1 avers that her mother, brother and herself are the next of kin of the deceased, and thus enable the court to protect the rights of the true beneficiaries.
    2. Where the deceased met his death while driving over a railroad crossing in the country, and the evidence shows that the train was approaching at the rate of twenty-five or thirty miles an hour, and that, if he had looked at a time when looking would have been effective, he could, in the exercise of ordinary care, have seen the engine in time to avoid injury, and no reasonable excuse exists for failing to look, the decedent was guilty of such contributory negligence as requires a reversal of the judgment rendered in favor of the plaintiff, the same being against the weight of the evidence as to contributory negligence.

      Zimmerman d Zimmerman, M. Ray Weihart and Gushing, íHddall d Lyon, for plaintiff in error..

      Keifer & Keifer, for Harriet I. Dump, administratrix.

      George G. Rawlins and G. V. 'Collins, for Florence Ruth Dump.
    Richards, J.; Kinkade, J., and Chittenden, J. concur.
    Error to the Court of Appeals for Clark County.
   In the court of common pleas Harriet I. Dump, as administratrix of the estate of Franklin Dump, deceased, brought an action against the Erie Railroad Company, under Sections 10770 and 10772 of the General Code, to recover damages arising from the death of Franklin Dump, which she alleged was caused by the negligence of the railroad company.

In her petition she averred that Franklin Dump was forty-four years old at the time of his death, was unmarried and left no widow or childern, and that he left as his next of kin a father, Samuel B. Dump; a mother, Harriet I. Dump; a brother, Ilarrv S. Dump, and a sister, Mrs. C. D. Koontz.

Florence Ruth Dump applied to the common pleas court for leave to be made a party to the litigation, and was granted leave to come in and file a pleading, which she did, denominated an answer and cross-petition.

In this pleading she set up, through her guardian to the suit, that Franklin Dump died, leaving a widow, viz., MJary Dump, and two children, to-wit, Alfred McKinley Dump and herself, Florence Ruth Dump; that Mary Dump was his common-law wife, and that Alfred McKinley Dump and herself are the offspring of such common-law marriage; and averred that they had been damaged by the death o£ said decedent, and she asks that the action might be prosecuted for their exclusive benefit and that the plaintiff might recover damages for such purposes.

Issue was taken on the allegations of this answer and cross-petition. The trial resulted in a verdict and judgment in favor of the plaintiff administratrix in the sum of $1,500, the jury finding, in a separate verdict, that Alfred McKinley Dump and Florence Ruth Dump are the legitimate children and only next of kin of Franklin Dump, deceased.

An interesting question arises in this case as to the legality of the action of the trial court in permitting Florence Ruth Dump to intervene as a party in the action and deny that the persons claimed in the petition to be the next of kin were such and aver that she and her brother and mother are the only next of kin.

The action brought by the plaintiff is one brought under favor of the statute, and did not exist at common law. The right of next of kin, who may be omitted as such in the petition filed by the administratrix and in the answer of the defendant, to come in and set up their claim, is not expressly provided for by statute, but to hold that the law will not allow such next of kin to intervene and set up their claim would be to turn the statute, in some cases, from a beneficent one, designed to aid in the administration of justice, into an engine of oppression.

Oases will readily occur to the mind where persons averred in the petition filed by an administratrix to be next of kin may have suffered little, if any, pecuniary damage by reason of the death of the decedent, while other persons, who are in truth the next of kin, may have suffered by that death large damages.

It is not infrequent, in cases of this character, that one or more of the next of bin have been guilty of contributory negligence, as in the case of Wolf, Admr., v. The L. E. & W. Ry. Co., 55 Ohio St., 517. If the true beneficiaries are not named in the petition nor their rights asserted by the answer of the defendant charged with negligence we hold it entirely proper that such persons may intervene, on leave of the court of common pleas first had therefore, and by appropriate proceedings set up the facts so that the rights of all the parties may be determined in one action.

It is worthy of note that the statute in force at the time of the death of Franklin Dump allowed a different maximum amount as damages, depending on whether the next of kin were children or others more remote in their relationship to the decedent.

We call attention to P., C., C. & St. L. Ry. v. Pritz, Admr., decided by the court of appeals in Hamilton county on July 3, 1913, and found in 17 C.C.(N.S.), 96. In that case the decedent was the father of two living children not named in the petition. The recovery was for the maximum amount allowed by the statute, and the court, in the course of the opinion, point out the liability of the defendant company to subsequent suits for the same negligent acts if the recovery had been for a less sum than the maximum amount allowed by law, as was the result in the case now under consideration.

Other circumstances might well exist of such a character as would indicate that injustice would arise if the rights of those who were the actual next of kin were not set up.

For instance, suppose the administrator would aver that the next of kin was an aged person who had never received any pecuniary advantages from the decedent, while in fact there were minor children of the decedent living who were the next of kin and who had been supported by him. • In all such cases, in order that the rights of the parties may be worked out by the courts, it is necessary that the interests of the actual beneficiaries be protected at the trial.

We hold, therefore, that the trial court committed no error in allowing Florence Ruth Dump to intervene in the action.

The bill of exceptions contains all of the evidence offered on the trial and is very voluminous. Numerous errors are assigned why the judgment is wrong and should be reversed, one, among others, being that it is not sustained by sufficient evidence.

It appears from the evidence that the death of Franklin Dump occurred on January 9, 1912, in this county, at a public crossing of the track of the Erie Railroad Company, in a little hamlet called -Snyderville, consisting of a few dwelling-houses.

The injury occurred between 4:30'and 5 o’clock in the afternoon of a very cold winter’s day, with a strong wind blowing from westerly direction and more or less snow falling.

Dump had lived at or near Snyderville nearly all his life, and was entirely familiar with all of the surroundings. ITe started to drive in a one-horse spring wagon on the occasion in question, along what is called Pole Cat road, in a southerly direction, then passed westerly for some four or five hundred feet to another road known as the West road. When reaching the so-called West- road, which runs nearly north and south, he drove in a southerly direction on that road, approaching the crossing where he met his death. As he neared that crossing a passenger train on the defendant company’s line was coming from the east at a rate of speed of twenty-five or thirty miles an hour.

There is much conflict in the evidence as to certain obstructions to his view, which are claimed to have existed, in the way of piles of railroad ties, the evidence being conflicting as to the number of piles, their location and height.

It appears from the testimony of a girl of about thirteen years of age, named Jennie Calloway, who was called as a witness by the plaintiff, Harriet T. Dump, that she saw the accident while she was standing on the .porch of her father’s residence, which is located about one hundred and fifty feet northwesterly of the crossing where the accident occurred. She saw the train approaching and saw Dump just as the front feet of his horse reached the northerly rail of the track, and she says that he had his right hand up to his'ear, his cap drawn down over his head, and that as she saw him he looked to the east and to the west.

The horse, when hit, was going about three miles an hour and was about midway of the track.

The only evidence in the case showing, or tending to show, that the decedent looked is the testimony of Jennie Calloway, and it shows that if he looked at the time she says he did, it was at such a time as would be ineffective to protect him from danger.

It seems clear from the evidence that if he had looked when he was fifteen or twenty feet from the track he could readily have seen the approaching train.

There is some evidence, it is true, of a depression in the road and some conflict as to the condition of the weather and, as already stated, the location and size of the piles of ties, but as the record stands we do not see that reasonable men could differ as to reaching the conclusion that if he had looked at the proper time he could, in the exercise of ordinary care, have seen the engine and preserved his life. Even at the highest rate of speed of the train, as given by any witness, the train must .have been as near to the crossing as the pile of ties at the time when he was fifteen or twenty feet from the track.

Some witnesses testify that from a point very near this crossing a train could be seen eastwardly on the track for a distance of a mile or more.

Without undertaking in detail a review of the evidence, which we refrain from doing for the reason that the case is to be remanded for a new trial, we are unanimous in the opinion that so far as the contributory negligence of the decedent is concerned the verdict is not sustained by sufficient evidence.

The ('.ase seems to have been very carefully and skillfully tried. While many errors are assigned, we have found none which are prejudicial except the one, relating to the weight of the evidence. For this error the judgment will be reversed, and the case remanded for a new trial.

Judgment reversed and cause remanded.