text:
    OBTAINING TITLE TO STREET BY ADVERSE POSSESSION.
    [Circuit Court of Lucas County.]
    S. Belden E. Seese v. The Village of Maumee.
    Decided, October 30, 1905.

      Streets — Adverse Possession of — Title Obtained Thereby, When — Encroachment upon, by Valuable Permanent Structures — Permissive, and Partial Encroachment by Fences and Sedges — Action by Oc- . cupant to Quiet Title — Application of the Statutes — Right of Public "to" Distinguish from Right of the Public “in" a Street — Estoppel of Municipality — Admissions by Claimant Subsequent to his Seizure — Do not Suspend the Running of the Statute, When.

    1. Whether Section 4977, having reference to actions to quiet title to streets held adversely for more than twenty-one years, and more especially that part of it which was added by the amendment of 1889, applies to a case where the streets have been opened, is a matter of grave doubt.
    2. But notwithstanding the uncertainty as to the application of- the statute, it is entirely clear under the authorities that one may by adverse possession obtain title to streets which have been regularly laid out and opened.
    3. There is a marked difference between an encroachment upon a part of a street, and the entire occupation of the street; where the exclusion Is entire for twenty-one years, the fact that the barrier was frail and unsubstantial does not prevent the possessor from successfully asserting title, and the public loses its rights both in and to the street. (Wright v. Oberlin, 3 C. C. — N., S., 242, and Morehouse v. Burgot, 22 C. C., 174, questioned; Mott v. Toledo, 17 C. C., 472., approved).
    4. The remark incidentally made by one who had fenced in a parcel of land that the street was included within the fence does not amount to a declaration on his part that the right of the public is superior to-Ms own in the strip once platted as a street, which has been enclosed.
    Parker, J.; Haynes, J., and Wildman, J., concur.
   The plaintiff began 'this action in the court of common pleas of this county on the 2d day of October, 1903. It is in the nature of an action to quiet title to certain tracts or strips of land that were at one time laid out as streets in the village of Maumee, in this county. From the judgment of the court of common pleas- in the case an appeal has been taken to this court and the case has been tried before us. The plaintiff says in his petition that he is the owner -of lots 1, 2, 3, 4, in block No. 9, and lots number 1, 2, 3, 4, 5, 6, in block No. 10, and wlater-lots number 6, 7, 8, 9, 10 and 11 of that village; that all of these 1-ots are in Wolcott’s/addition to the village of Maumee, Lucas county, Ohio. It appears that the lots mentioned in the blocks named comprise the whole of these blocks 9 and 10, and that these blocks lie upon the south -side of one of the main streets of the village, called W-oleott street; that this street is sometimes called the river road, sometimes Detroit avenue. It runs east and west by these premises, -and these 1-ots lie between this street and the Maumee river. T-h-e water lots lie south of blocks 9 and 10, being separated therefrom by Water street. Johnson street, a part of which is in dispute here, lies -between -blocks 9 and 10, block 9 being -on the upper or w-es-t side and block 10 being on the lower or east side of this street. The dedication of the plat in which these lots are described -and in which these streets are dedicated by Mr. Wolcott occurred in 1837.

It has been said that this action is brought by the- plaintiff under favor of Section 4977 of the Revised Statutes, more especially -the part of that section which was added by amendment in 1889. But it is contended on behalf of the village that the -action is not maintainable under these provisions of the statute, because these streets were at one time -open and the statutes applies' only to cases where streets have not been opened.

It is perhaps inaccurate to speak of the ease as being brought under the statute -at all. The statute does n-ot provide for any actions or any remedy; it is a part oE the statute of limitations ■and it provides primarily for .a defense. These provisions added in 1889 applied specifically to streets, and seemed to provide the results of certain actions with respect to streets— that is to say, the effect of fencing -up certain streets. While, as I have said, we deem it inaccurate to speak about the action as having been brought under any of the provisions of this section, yet the result of adverse possession for twenty-tone years, under certain circumstances, is to give to the possessor a title, and the question we have to consider is whether under any of the provisions of this section, the plaintiff has such title as that he may maintain an action to quiet title, or may resist a claim to the streets made on behalf of the village.

I shall not stop to read the section, but will say that we entertain very serious doubts whether the plaintiff has brought himself within the provisions of this amendment to the statute made in 1889; that is to say, we question very much whether this part of the statute applies to eases where streets have been opened; and we find in this case that in pursuance of an ordinance for the improvement of these streets, passed May 29, 1843, these streets were 'Opened; we find ‘the preponderance of' the evidence is to that effect; that is to say, that sufficient- was done by and on behalf of the village to amount to the opening of the streets, though we do not believe that the streets were improved as provided by that ordinance; but that sufficient authority was exercised over the streets and sufficient use was made by tbe public to amount to an opening of the streets. The ordinance provided for the grading of Water street, -which runs in an easterly and westerly direction at this point between Wolcott street and the river, and it appears that at about this point there was some grading done upon what was supposed to be Water street, some leveling up to- make it passable -by teams. But we find that whatever was done with respect to the attempt to improve Water street was not done upon what was actually Water street at all; that Water street, in fact, was in such position on the bank of the stream, the side of the hill forming the upper -bank, that it could not he traveled over with teams, and that the teaming that was done, according' to the testimony of witnesses, must have been done upon these water-lot® between Water street and the river; and it is very evident to us that there was never any teaming done over Johnson street between Wolcott street and the river. We are entirely satisfied upon that point.

The ordinance in question provides for the improvement of Tap.pam street, which was along the east side of block 10 extending from Wolcott street down to Water street, so that it might be traveled by teams; the ordinance provides specifically 'for that, and it provides for the improvement of Water street to the westward as far 'as Forrer street; and it seems entirely clear to us from the testimony of witnesses that whatever was done by way of improving the street so that teams might travel from Wolcott street down to Water street, was done upon Tap-pan street. Indeed, it appears from the testimony that in early .times there were some docks built in this vicinity, some in the immediate vicinity of these water lots, some further east and that there was considerable traffic here, there was some boat building, etc., and occasion for people to go rip and down the banks and to do hauling up and down there. But that all seems to have come to an end about the middle of the last century and the traffic ceased, and the docks and whatever improvements there were in 'that vicinity were allowed to go into disuse 'and decay, so that there is very little, if anything, now’ evidencing such former occupation and use.

Now, notwithstanding the fact that the plaintiff’s case may not come within in the provisions of this amendment to this section because of the streets having been opened up, we think it is entirely clear under the authorities that one may obtain a title to streets, which have been regularly laid out and opened, by adverse possession to the exclusion of the public for a period of twenty-one years, and the question that we have considered and that we shall pass upon is whether there has been such use and occupation of the predecessors in title of Mr. Seese as puts him in the position where he may have his title quieted to the parts of Johnson street and Water street which are in controversy.

In certain of the earlier cases; one, Cincinnati v. Church, 8th Ohio, 299; another, Williams v. Church, 1st Ohio St., 478, and another, Cincinnati v. Evans, 5th Ohio St., 549, the doctrine appears to have been recognized that title to parts of streets might be acquired by adverse possession. It has been said in later eases with respect to these holdings that while the judgments were right, they should have been put upon the ground that the city was estopped from claiming the parts of streets occupied by private structures, and there seems to be good reason for this contention; and if in cases like this, the city might be estopped, it is apparent that it would not require a period of adverse possession of twenty-one years in order that the estoppel might be effective; the estoppel might be effective in a very short period of time, the twenty-one years’ period would have no influence upon that question at all, at least it would not have a controlling effect. These earlier cases are reviewed by our Supreme Court in several late cases and I call attention especially to the case of Heddleston, Supervisor, v. Hendricks. 52 Ohio St., 460, where they are reviewed by Chief Justice Minshall, and I can not do--better in discussing this ease and these earlier cases than to read what Chief Justice Minshall has said about them. I read from page 465:

“The general rule is that the statute of limitations does not apply as a bar to the rights of the public, unless expressly named in the statute; for the reason that the same active vigilance can not be expected -of it as is known to characterize that of a private person, -always jealous of his rights and prompt to repel any invasion of them. But in the cases- of The City of Cincinnati v. The First Presbyterian Church, 8 Ohio. 298, and of The City of Cincinnati v. Evans, 5 Ohio St., 294, a different ru-l-e was applied, .and, in the first case, the right of the city to a portion of its public square occupied by the church, -and, in the other ease its right to a portion of -one of its streets, encroached upon by the building of the defendant, a private person-, was, in -each -case, held barred by an -adverse possession of twenty-one years. But these eases are regarded as exceptional; and confined to municipal corporations in eases where their possession has been disturbed by the erection of large -and valuable structures under such circumstances as preclude the idea that the encroachment was -simply permissive on the part of the municipality. Thus, in Lane v. Kennedy, 13 Ohio St., 42, where a landlord extended his fences so -as to include a portion of the highway not then used or needed for the public travel, and continued the same for 'twenty-one years without any objection, it was held that such partial encroachment was not necessarily adverse to the public, nor inconsistent with its easement, and, therefore, constituted no bar to its reclamation by the supervisor when required by the public travel. The encroachment in this case was upon a highway within the town of Oxford, and which then formed a part of one of its streets. And Peck, J., in distinguishing the case of Cincinnati v. Evans observed -that ‘by a reference to the facts therein stated, it might with equal, if not greater propriety, have been placed upon the ground of an 'estoppel in pais on the part of the city authorities; the building having been located by the city surveyor and upon lines previously established and built upon.’ Again, it is held in McClellan v. Miller, 28 Ohio St., 488, that an encroachment on a highway regularly laid out and established, by putting up a fence or planting a hedge within .established limits, does not constitute such adverse possession as will confer title. After reviewing the previous cases Wright, J., said: ‘When roads are laid out and travel is limited, necessity may not require that the whole width should be opened when a less quantity answers every purpose. But the fact that a portion of the highway remains in the possession of adjoining owners is merely a matter of sufferance, from which rights can not accrue. If, as in 5 Ohio St., 594, such proprietor should erect permanent improvements upon the ground in question, indicating an intention permanently to appropriate the land, a question of adverse possession might arise.’ He then adds: ‘A fence is not such permanent improvement. Nor does the fact that a hedge was planted vary the case. The public have a mere easement for the road. The proprietor still owns the fee, and may use it in any way not inconsistent with the purposes of a road. He may plant trees; he is entitled to the herbage; and the setting out of a hedge entirely comports with his own rights, while it does not conflict with those of the public. ’ ’ ’

And there is a further discussion of the matter. Now counsel for the village insist that what is here said about fences, hedges and the like is clearly applicable to the case at bar, because the only obstruction that was placed across these streets by the owners of these lots was by way of fences cross Johnson street on the line of Wolcott street, and by way of a fence at either end of that part of Water street which traverses the southern boundary of blocks. 9 and 10.

But a study of this case and others discloses a marked difference between an encroachment upon a street by a partial occupation thereof by the construction of ordinary structures, (not permanent, as in the Cincinnati ease), and an entire exclusion of the public from the streets, and we think that where the public is entirely excluded from use of the street for a period of twenty-one years, it makes no difference how frail or unsubstantial the barrier may be that excludes the public; that it is not necessary to exclude them by a permanent structure; it is sufficient that the public is excluded. We think that this distinction was lost sight of by Judge Caldwell when he came to decide the ease of Wright v. Oberlin, 3 C. C. — N. S., 242, and Morehouse v. Burgot, 22 C. C., 174, but that the distinction was recognized in the case of Mott v. The City of Toledo, 17 C. C., 472.

We conclude that the evidence supports the contention of the plaintiff that the public has been excluded from the use of these streets by the fence across them at the points I have described for a period of more than twenty-one years before this action was begun. Mr. Darmstadt became the owner of the premises by a tax title about 1867, and it seemed that he went into the occupation of the premises about that time; his title was perfected by deed in 1873, but the testimony shows that he built a fence ■along the line in front of blocks 9 and 10, along the south line of Wolcott street and across Johnson street at that point, as early as 1870, and that about that same time he built a fence from the northeast corner of block 10 down to the river, thereby crossing Water street, and from the northwest corner of block 9 down to the river, thereby crossing Water street. The first fence he built appears to have been substantially around block 9; according to the testimony of some of the witnesses the other fence was built ■a few months later; according to the testimony of other witnesses a year or two later. But we are convinced from the testimony that from about the year 1870 until a year or two before the beginning of this suit, these fences were maintained continuously, though at times they were decayed and out of repair, yet they were kept in condition so that they would turn stock at any time and so that the public could not use these streets for traffic, and eould not pass upon these streets as foot passengers otherwise than by passing through the barriers by way of a gate part of the time, and by way of bars part of the time, erected by Mr. Darmstadt as a part of his fence across Johnson street. Upon the south line of Wolcott street upon Water street, there was no way of getting by the fence other than by climbing over it or under it. The fence would turn stock. This first fence, which, -as I have said, was built substantially -around block 9, does not appear to have conformed to the line of block 9 upon the south, but it went far enough south at the east end to take in about half of Water street: it was then continued in a westerly direction to about the south side of Water street, or within about a foot of -that point, where it joined the fence leading from Wolcott street to the river, so that this fence at the west end took in all of-Water street but about one foot. Perhaps it left no obstruction, for a while, to that part of Water streeUwhieh had been used by the public in earlier times, or I should say that part of the territory which was supposed to be Water street and so used by the public in early times, to-wit, the water-lot line of travel on the level land.

Upon the proposition that this amendment to Section 4977, probably does not apply to- the -ease at bar, I meant to state, and will now cite the case of McClelland v. John Miller, 28 Ohio St., 489, and Grore v. Graham, 41 Ohio St., 303, and this- case of Heddleston v. Hendricks, 52 O. St., 460, which comes under Section 4668 of the Revised Statutes, a section applicable to county roads that have not been opened and similar in its provisions -or its general scope and purpose to this amendment to Section 4977. It was held in th-ose eases that -the statutes applied only to roads that had not been opened at all. But the first clause of Section 4977 applies as well to streets as to cases where the ownership -or right is claimed by municipal corporations as to other territory, where the claim is made by private proprietors. The cause which I refer to is “an action for the recovery of title or possession of real property- can only be brought within twenty-one ■ years after such action -acrues, ’ ’ and while, as I say, that was intended to be used defensively— provides a defense-^-it results when an .action is brought like this to quiet title and claim to the property is made on behalf of another, that it may be used in support of the cause of action of the plaintiff.

It is contended by counsel for the village, as we understand it, that this fence was in the nature of a nuisance prohibited by statute, and that there is no statute of limitations under which one may claim a right to maintain-a fence; that no length of time will bar the public authorities from proceeding to remove the nuisance from streets, and that being true, it must result that there is no bar to the right of the city here to claim these streets and to ask for the removal of these fences. We are cited to the case of Little Miami R. R. Co. v. Comrs. Green Co., 31 Ohio St., 338. It appears that that was a case in which the railroad company was permitted to encroach upon a public road under an agreement which contained the 'condition that the road was to be restored to its former state or in a sufficient manner not to impair its usefulness, and it was held that under this agreement and arrangement, the public authorities had the right to require the removal of the obstruction; that it did not authorize the company to permanently appropriate any portion of the public highway, by the obstruction. Now in the course of discussion in this ease, reference was miade to the law upon the subject of public nuisance. We take it that principle applies in a case where the authorities maintain their rights in a street or to a street and one undertakes to obtain, an easement or a right therein by erecting a nuisance, and not to a case where one, by a fence or other structure, entirely excludes the public from the street; that the public’s right to a street and the public’s right in a street are two different things. Where the public claims its thoroughfare, maintains its rights to its thoroughfare, one may not by transgressing upon the limits-of that street by an unauthorized obstruction defeat the right of the public to have that obstruction removed. There is another case upon this subject, where one claimed an easement in the street by reason of certain pipes erected along and under the surface of the street (that was a Springfield case I believe). These pipes were destroyed by the construction of a sewer. This is the case of Eister v. Springfield, 49 Ohio St., 92, and there this doctrine was enforced. Bnt we understand it to be well settled that where the public is entirely excluded from the use of the street, where the whole street is occupied by one using it adversely, claiming it adversely to the public, that the public may lose its right in the street and to the street altogether.

It is urged on behalf of the village here that this use of it, even if it has been for a period of twenty-one years, has been permissible, or that the rights of the village-had been recognized by the Darmstadt’s, who fenced up the street and used it; and emphasis is laid upon by the testimony of Mr. Wagner, who says that the elder Darmstadt, through whom this later proprietor claims, in 1889 said to him, pointing to the part of the street whch was láid out as Johnson street, “What is a street.” It appears that that was fenced in at the time, and fenced in as part of block 10, and the fact that it was fenced in with block 10 is what called for the question upon the part of Mr. Wagner, that brought this response from Mr. Darmstadt that it was fenced in and had a gate leading from Wolcott street. Part of this was cultivated and this part which had been Johnson street was uncultivated; Mr. Wagner inquired of Mr. Darmstadt why this was that he kept it in that rough uncultivated condition and Mr. Darmstadt said that was a street.

Well, now, what effect is to be given to that. As a matter of fact it was fenced up; the public could not use it for travel at all, excepting foot passengers and those must use it by the gate or piair of bars or climb the fence that had been constructed there by Mr. Darmstadt. The whole subject of such declarations made by an occupier is very fully discussed in the case of McAllister v. Hartzell, 60 Ohio St., 69. I can not take time now to read much from this ease, but most all of what is said in the opinion of Judge Spear upon the branch of the ease which involved declarations of the occupier, is applicable to the case at bar. What Mr. Darmstadt said upon this subject at this time was quite proper. In a sense that was a street; it had been regularly laid out and platted as a street; and yet he might have mentioned it as such street as he was using as a lane for hi® cattle down toward the river at this point. There is much testimony tending to show that parte of the land that was fenced up was much, narrower than the street as laid out; that the fences leading toward the river at this point were not more than eight or ten feet apart; and this must have been so part of the time that it has stood there1; at other times they were as much as fifty feet apart, yet the street itself was sixty feet wide. But these declarations did not amount to an acknowledgment upon the part of Mr. Darmstadt that he did not hold it adversely; did not amount to an acknowledgment upon the part of Mr. Darmstadt that the public had a superior right to that than he; and Mr. Darmstadt may not have appreciated at that time the fact that he had occupied it so long that he might success-^ fully deny the right of the public to any use of the street.

Now I will read the first clause of the syllabus in this case of McAllister v. Hartzell, 60 Ohio St., 69:

“Where the statute of limitations is interposed in an ¡action of ejectment, and it is shown that the original seizure was a disseizin, any ¡subsequent act or declaration of the claimant, or his predecessor in title, which does not estop the claimant to plead the statute, nor suspend the right of the holder of the title to prosecute an action to recover possession, will not be sufficient to arrest the running of the statute. Neither a mere offer to buy within the twenty-one years, nor án acknowledgment by the claimant within that time that the title is in another, or that the claimant does not own the lands, will have that effect.”

Mr. Darmstadt did not say so much as is covered by this decision ; he did not offer to buy; he was not talking to any representative of the village; he did not acknowledge the ownership of the village; he did not say that he did not own it himself, As I say, this matter is discussed very fully by Judge Spear in this case, and I will read part of the opinion found on page 93.

But first I will refer to Dayton v. Marshall, I Rice Eq., 373. I will read what the holding in that ease was, from page 386:

“It is believed that no case can be put in which a man knows that another claims and is in enjoyment of what belongs'to him, where there is nothing to prevent his doing so, that he will be barred by the statute,”

Now speaking of this case, Judge Spear says on page 93:

“We are of the opinion that the principle announced in Dayton v. Marshall, supra, is a just one, that it is applicable to the facts of this case, and that the rule should be that where it is shown that the original seizure was a disseizin, no subsequent act or declaration of the claimant should be held to toll the statute which does not deprive the holder of the title of his right to prosecute his action to recover possession or suspend the same. This is a simple, easily understood text, and-we believe is not only within the letter, but clearly within the spirit, of the statute Applying this rule to the ease at bar it is clear that neither the mere offer to buy, nor the acknowledgment of the claimant that the title was in another, or that he did not own the land, is sufficient to suspend the running of the statute. Such acts and declarations raise no conclusive implication that the claimant intends to attorn to the holder of the title or yield the possession.”

Here we find that the public was excluded; we find tha,t this is an act, which, in the absence of any evidence of permission given by the public, is unequivocal; it speaks louder than wprds; that it disclosed a purpose to use this to the exclusion of the public. If the public submits to such exclusion for a period of twenty-one years, we hold that if may not thereafter assert successfully a claim to the street. Upon the whole we conclude that the decree should be for the plaintiff, quieting his title.


source: Caselaw Access Project

license: Public Domain

text:
    CONTINUING THE BUSINESS OF A DECEDENT.
    [Circuit Court of Hamilton County.]
    C. H. Rembold, Administrator, etc., v. Sophia G. White, Administratrix.
    Decided, March 17, 1906.

      Administrator — Continuation of Business of Decedent by — Claims of Heirs for Services and Moneys Advanced — Can Not -Be Denied, When — Are not Enforceable, When.

    1. Where an administrator continues the business of the decedent in good faith at a profit, a subsequent administrator de bonis non will not be permitted to deny the validity of claims presented by sons and heirs of the decedent on account of services rendered and money advanced in connection with the business and which resulted in increasing that part of the estate.
    2. But where the business of the decedent was' carried on without any authorization of law and at a loss, heirs who joined therein, although acting in the best of faith, will be charged with knowledge of the want of capacity of the administrator, and can not thereafter assert their claims for contributions of money or'services, either against the assets involved in the business or the general assets of the estate, in preference to the claims of original creditors.
    Jelke, P. J.; Swing, J., and Gieeen, J., concur.
   It appears that Arthur E. White and Florence C. White, administrators of the estate of Alfred White, deceased, undertook and did, for a period of time, carry on, the business of their decedent on West Fifth street, in this city, without any authority of law. That during this time, Walter T. White and Alfred R. White performed certain services and advanced money in connection with said business so carried on after the death of their father, Alfred White, deceased.

Subsequently, there was an auction sale of the personal assets of the estate at which the said Walter T. White and Alfred R. White bought in certain articles, and in payment therefor gave their promissory notes. These notes are in the hands of C. H. Rembold, administrator de bonis non, and in an action upon the same in the court below, the defendants set up as. an off-set against the amounts of these notes, their claims against the administrators for the services performed and moneys advanced as above set forth. The administrator de bonis non denied their right to make such set-off.

The law in this case is indicated by the decision in the case of Lucht, Admr., v. Behrens, 28 O. S., 231, the first and second proposition of the syllabus being as follows:

“Where the executor of an estate, who is not authorized to do so, takes the personal assets of his testator, and uses them in carrying on the former trade and business of the testator for a series of years, for the purpose of making money to be used in paying the debts and supporting the family of the testator, consisting of a widow and minor children, and also for the purpose of keeping up the business for the minor sons when they should be old enough to take charge of it, and in so doing, pays off all the debts of the testator—
“Held: That the general assets of the testator in the hands of an administrator de bonis non, are not liable for money borrowed by the executor for, and used in carrying on such trade and business, though the executor acted in good faith. The general estate, real and personal, of the testator, not embarked in such business, can not be subjected to the liabilities incurred in its prosecution in the absence of clear and explicit authority conferred by the will, even though the executor acted in good faith. ’ ’

There is no doubt that the general assets of the estate of Alfred R. White, deceased, can not be subjected to these claims of Alfred R. White and Walter T. White. This decision of the Supreme Court seems to recognize a difference and distinction between the general assets of the estate and the assets embarked in the business. We incline to the opinion that this decision of the Supreme Court will justify us in saying that if the administrators carried on this business in good faith at a profit, and the services rendered and money advanced inured to the benefit of, and increased that part of the estate so embarked in the business, that the administrator de bonis non would not be permitted to deny the claims of those who had contributed to that part of the estate by their services and money.

Although the administrators acted in good faith in conducting this business, they did so absolutely without authorization in law, and Walter T. White and Alfred R. White doing business with, them, and being sons and heirs of the decedent, were certainly charged with the knowledge of the administrators’ want of capacity. The administrators conducted this business at their peril; and Walter T. White and Alfred R. White, although acting in the best of faith, were likewise subject to the same peril. If said business lost money, Walter T. White and Alfred R. White can not assert their claims as charges upon this part of the assets or the general assets in preference to the claims of original creditors. The record does not disclose whether or not .all the personal assets of the estate of Alfred White were embarked in this business, or whether it was a separate and definite part of the same; neither does it disclose whether this business made or lost money; nor does it disclose whether or not the goods purchased by Walter T. White and Alfred R. White were part of the assets of the estate embarked in the business, or part of the general assets. Giving the law the most favorable possible construction, for said Walter T. White and Alfred R. White, the record does not bring this case within such construction. Whatever may have been the reciprocal rights between the administrators and Walter T. White and Alfred R. White, their only claim against the administrator cle bonis non would be on account of a charge which they were entitled to assert upon the assets which pass into his hands, and we do not find that the testimony in the record reveals such legal charge.

W. T. Porter, for plaintiff: in error.

Alex Murry, for defendant in error.

We are, therefore, of the opinion that this case should be reversed.


text:
    THE PROSECUTING ATTORNEYS’ SALARY ACT.
    [Circuit Court of Lucas County.]
    The State of Ohio, on the Relation of Lyman W. Wachenheimer, Prosecuting Attorney, v. The Board of County Commissioners of Lucas County, Ohio.
    Decided, March. 17, 1906.

      Constitutional Law — Provision for Salaries for Prosecuting Attorneys Invalid — No Provision for Minimum, Compensation or Authority to Fix Compensation.

    1. Prosecuting attorneys are not local officers, but are a part of the permanent organization of the government of the state; hence Section 1297, Revised Statutes, providing for their compensation, which specifies the maximum amount thereof in certain counties, and fixes the salary in other counties on a basis of population, is unconstitutional and void, as being a law of a general nature lacking uniform operation throughout the state.
    2. Whether Section 1297, Revised Statutes, providing for the compensation of prosecuting attorneys, is not void for uncertainty in its operation, in establishing maximum salaries, but fixing no minimum amounts, and in failing to name the authority to determine the same in the several counties — Quaere?
    Wildman, J.; TIaynbs, J., and Parker, J., concur.
   This court recently announced its judgment that the demurrer to the plaintiff’s petition, which is one asking for a mandamus, should be sustained. We have been asked to put our reasons for this decision in such form that the case may be reported. The question involved is so important, as affecting the prosecuting attorneys of the entire state, as to justify this request and the assent of the court to it.

The petition, I have said, is one for mandamus, brought by Lyman W. Wachenheimer, who is Prosecuting Attorney of Lucas County and who seeks to compel the county commissioners to take action under Section 1297, Revised Statutes, by fixing the times and amounts of installments for the payment of his salary as such prosecuting attorney under said section. The section reads as follows: ,

“The prosecuting attorney shall receive an annual salary not exceeding the sum herein named, to-wit: In Hamilton county, thirty-five hundred dollars; in Cuyahoga county, four thousand dollars; in Lucas county, two thousand dollars; in Franklin county, two thousand dollars; in Montgomery county, two thousand dollars; in each county containing less than twenty thousand inhabitants by the last federal census, four hundred dollars, and in each other county two dollars for each one hundred inhabitants such county contained at the next preceding federal census, to be paid at such times and in such installments as the county commissioners may direct.”

Our view, as previously announced and as still held, is that this enactment is clearly an infraction of Section,26, Article II, of the Constitution of the state.

Prior to the decision of the case of The State, ex rel Guilbert, Auditor, v. Yates, Auditor of Pickaway County, 66 O. S., 546, acts of this character, fixing the compensation of county officers were understood and had been held by the Supreme Court to be constitutional and valid.

In the case of Pearson, Auditor, et al v. Stephens, 56 O. S., 126,'such an act had been sustained. But in the Yates case, supra, the following holding was made:

“County officers are not local officers, but are a part of the permanent organization of the government of the state, and the subject of compensation to county officers is not local in its nature, and an act of the General Assembly upon' that subject is a law of a general nature which must operate uniformly throughout the state. Pearson et al v. Stephens et al, 56 Ohio State, 126, overruled.”

This case was decided by a majority of the court, Judge Davis announcing the opinion, and Burket, Shauck and Price concurring. Judge Spear announced no dissenting opinion, but his name is not among.the judges so concurring.

In the subsequent eases of The State, ex rel Allison, v. Garner et al and State, ex rel Allison, v. Mackey et al, 66 O. S., 555, the court held, as expressed in the first syllabus:

■ “The act ‘to limit the compensation of county officers in Holmes county,’ passed April 26,.1898 (93 O. L., 660), is a law of a general nature which does not operate uniformly throughout the state; and it' is therefore in violation of the Constitution, Article II, Section 26; State, ex rel Guiltert, v. Yates, ante, 546, approved and followed.”

In this case it was very earnestly urged by counsel that since the decision of the Pearson v. Stephens case, supra, and in relianee upon it, local laws had been passed in eighteen counties in the state providing for the compensation of county officers, and it was argued that to hold such legislation invalid would be to plunge the county affairs of eighteen counties into hopeless and almost inextricable confusion. Notwithstanding this appeal the court adhered to its decision in the Yates case, Judges Burket, Shauek and Price again concurring with Judge Davis, who announced the opinion. Judge Spear concurred in the judgment upon another ground but not upon the ground which has been stated.

But in the later case of The State, ex rel Guilbert, Auditor of State, v. Lewis, Auditor of Hamilton County, 69 O. S., 202, the entire court united in this decision:

“The doctrine stare decisis will not be allowed to interfere with the overruling of a former decision upon á constitutional question when such former decision is clearly erroneous and it does not appear that such decision has been acted upon as a rule of property, or that rights have vested under it so that more injury would follow if it were overruled than if it were allowed to stand.
“State, ex rel Guilbert, v. Yates, 66 Ohio St., 546, is approved and followed, and State, ex rel Attorney-General, v. Judges et al, 21 Ohio St., 1, is overruled.”

We have then the entire Supreme Court finally concurring in the approval of the Yates case, and consequently the judgment that legislation of the character now under consideration is invalid as an infraction of the section and article of the Constitution which have been mentioned.

This act provides that the salaries of prosecuting attorneys in Hamilton, Cuyahoga, Lucas, Franklin and Montgomery counties shall not exceed the amounts stated, but that in each county containing less than 20,000 inhabitants by the last federal census, $400, and in all the other counties of the state $2 for each one hundred inhabitants. A peculiarity of this enactment is that no provision is made for a minimum compensation in any of the counties of the state, nor is any authority named which may determine the amounts of the salaries in the several counties.

A query naturally arises, and we desire to suggest it, as to whether this act, without regard to the Constitution, may not be invalid because of uncertainty in its operation. It is an evolution from an earlier statute which provided that the county commissioners might fix the salaries .in certain counties, but should not fix them in any amount exceeding the amount or amounts named; but in the amendment of the statute and in the enactment of the section now before me, the provision giving to the county commissioners such power is eliminated, and no other tribunal or authority is substituted. The only power given to the county commisioners seems to be that whatever salary is allowed is to be paid at such times and in such installments as the county commissioners may direct. It is not necessary to our decision that we should hold this act invalid for this reason. It is enough to base our decision on the adjudications of the Supreme Court to which reference has been made, and upon those adjudications and in recognition of the far-reaching conseT quenees of such holding, affecting the salaries of all prosecuting attorneys in the state, we are still constrained to sustain the demurrer to the petition upon the ground that it States no facts entitling relator to the mandamus sought.


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    CONTRACT FOR RENT OF PREMISES.
    [Circuit Court of Hamilton County.]
    Leopold Burckhardt v. Lewis H. Greene.

    Decided, 1902.

      Lease — Contract for, is an Entire Contract, When — One Breach and One Recovery — Part Performance — Statute of Frauds.
    1. Where a lease, is made of premises at a monthly rental and a six months’ term, the contract is entire and there can be but a single breach and recovery; and where the lessee refuses to enter, a recovery of judgment for the first month’s rent and its payment constitute a bar to further actions for recovery under the lease.
    2. The things done in this case were not of a character to take the contract out of the provisions of the statute, and being a contract affecting real estate and not in writing can not be enforced.
    Jelke, P. J. (orally); Gieeen, J., and .Swing, J., concur.

       Affirmed by the Supreme Court without report, 68 Ohio State, 711.

   This action was brought in a magistrate’s office for an installment of rent which it is alleged was arranged between Mr. Burckhardt and Mr. Greene for the occupancy of his residence in Mt. Auburn, for a period of six months, at a monthly rent of $100 per month. There are two defenses to this action. The first is that Mr. Burckhardt sued for the first month’s rent under this alleged contract, and recovered, and the judgment was paid. We are of opinion that the contract was an entire contract, although the rent was payable monthly, and that there was no .occupancy upon which there could be monthly recovery for occupancy. There was but one breach of an entire contract, and there could be but one recovery, and the recovery of the first $100 is a bar to anything further upon this contract.

Goebel & Bellinger,-ices: plaintiff in error.

Galvin <& Galvin, for defendant in error.

Further than that, the defendant has urged that it is a contract affecting real estate, and under the statute of frauds, it not being in writing, can not be enforced. The reply to that is that there was a partial performance, and allegations are that Mrs. Burckhardt prepared the house, made some changes preparatory to Mr. Greene’s occupancy, and let a former tenant go, and upon a certain date went and tendered the keys to' Mr. Greene.

There is one general principle laid down in Ohio, that anything done to take a contract out of the provisions of the statute of frauds must be done strictly with reference to the contract, and if the things done can be made referable to anything else, then they are not referable to the contract. Now, the small things done up there at the house are not of such a nature but that they might have been done under any circumstances, and it appears from the evidence that the former tenant, Judge Thompson, left at the expiration of his term, which expired some time before this six months’.period was to begin; and so far as the tender of the key is concerned, that it is not a performance; if it is anything, it is a tender of performance. Therefore, on the second ground, we are of opinion that there has been nothing done which would take the contract out of the provisions of the statute, and it being a contract affecting real estate, and not being in writing, can not be enforced.

Therefore, on both grounds, the judgment will be affirmed.


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    DESCENT OF REALTY IN WIFE’S NAME.
    [Hamilton County Circuit Court.]
    Charles Bernhardt v. Charles Bernhardt, Administrator, et al.
    Decided, February 10, 1906.

      Title — Property in Wife’s Name — Purchased with Funds of Husband— Not Held in Trust by Her — Husband not Relative of Wife — Within Meaning of Section 5971 — Descent of Property.

    1. Where the title to real estate is in a wife, evidence that the funds for its purchase and improvement were furnished by the husband does not afford ground for declaring that she holds in trust for him and his heirs.
    2. A husband is not a relative of his wife within the meaning of Section 5971, and property devised by her to him does not, in the ' event of his prior death, pass to his children by a former marriage, but goes to relatives of the wife by blood.
    Gteeen, J.; Swing, J., concurs.
   This is an action in partition in which the plaintiff and the defendants, Phillip Bernhardt, Barbara Ruehlmann, the brothers and sister, and the minor defendants, the children of a deceased brother of Catherine Schaefer, deceased, claim title to certain real estate as her heirs at law; the other defendants, Louis Schaefer and Lizzie Berberich, claim title as children of Ludwig Schaefer, the deceased hiisband of Catherine Schaefer.

Their claim is based: First, upon the allegation that The land in question was purchased with funds belonging to Ludwig Schaefer, and the title being vested in Catherine Schaefer, the wife, a resulting trust was engrafted on the deed absolute; and if this be not found, that the improvements upon the land were made with funds belonging to Ludwig Schaefer, and that a trust resulted to the extent of such improvements. Second, that Catherine Schaefer, having .devised the real estate to her husband, who died prior to the death of the testatrix, they claim as the issue of such devisee, under Section 5971, Revised Statutes.

While we are of the opinion that by a preponderance of the evidence it is shown that Catherine Schaefer furnished the purchase money for the land, and her husband, Ludwig Schaefer, the funds with which the improvements were made, it may be conceded that all the funds were furnished by the husband and yet find that the title was in Catherine Schaefer. Counsel seems to assume that having shown that all the money was being furnished by the husband, the title was necessarily held in trust by the wife.

In the case of Creed v. Lancaster Bank, 1 O. S., 1, the second proposition of the syllabus is as follows:

“When a person purchases property with his own funds, and places the title in the name of a stranger, the legal presumption is that he made such purchase for his own use, and that the property is held in trust for him.
‘ ‘ But where such purchase and conveyance is made by a man to a member of his own family, the presumption is that the property is intended as a gift or advancement.”

We think the evidence in this case shows not only that Ludwig Schaefer knew that the conveyance had been made to his wife, but that he intended the title absolute to remain in her.

Section 5971, Revised Statutes, upon which the other claim is based, provides as follows:

“When a devise of real estate or personal estate is made to any child or other relative of the testator, if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter, leaving issue surviving the testator, in. either case such issue shall take the estate devised in the same manner as the devisee would have done . if he had survived the1, testator.”

The argument is that the husband is a relative of the wife within the meaning of this section, and that the issue of such husband, although not the issue of the testator, take the estate devised in the same manner as the devisee would have done.

It has frequently been held in other states where a like statute exists, that the word “relation” includes only those related by consanguinity. In the ease of Cleaver et al v. Cleaver et al, 39 Wis., page 96, the first proposition of the syllabus is as follows:

“In Section 29, Ch. 97, Revised Statutes (which provides that ‘when a devise or legacy shall be made to any child or other relation of the testator, and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given’), the word ‘relation’ includes only relations by consanguinity.
“.2. The testator’s wife having died before him, a bequest made to her by the will lapsed, although she left issue which survived him.”

And at page 102 it is said:

“The words of the statute are, ‘child or other relation.’ Noscitur a sociis. Child or ’other relation must signify child, or other relation of like character as a child; that is, other relation of the testator’s blood.”

A like construction of similar statutes will be found in Esty v. Clark, 101 Mass., 36; Benton v. Matthews, 10 Wash., 533; Kenniston v. Adams, 80 Maine, 290.

The statute in this state was construed in the case of Phillips, Executor, v. McConica, Guardian, 59 O. S., p. 1, the third proposition of the syllabus being:

“When a legatee dies before the testator, the legacy lapses unless such legatee was a child or other relative of the testator, and left issue surviving the testator as provided in Section 5971, Revised Statutes. An adopted child is not such issue.”

At page 8 the court say:

“The word ‘issue’ in this section means child of the body, or heir of the body, of the deceased relative of the testator, and does not include a child adopted by such decedent. The issue in such case must be of the blood of the testator and of the deceased child or other relative by birth. ’ ’

Applying this construction to defendants, Louis Schaefer and Lizzie Berberich, they are not of the blood of the testator, although the issue of the devisee by a former wife.

It must be admitted, however, that this construction is in conflict with the unreported case of White v. Agnew, a statement of which is found in the 38th Weekly Law Bulletin, 47. But the express construction of a statute which is determinative of the issue in a case is of higher authority than that which is inferred only from the affirmance of a judgment without report.

John G. Heady and Powell & Smiley, for plaintiff.

Jacob Shroder and Edward G. Beemelin, contra.

We are of opinion, -therefore, that the defendants, Louis Schaefer and Lizzie Berberieh, have failed to show any title to the land, and a decree may be entered accordingly.


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    IMPROVEMENT OF STREET UNDER. AN INVALID LAW.
    [Circuit Court of Lucas County.]
    Abbie Whipple et al v. The City of Toledo et al.
    Decided, September, 1905.

      Street — Improvement of, hy Straightening — Jurisdiction of Council over Petition — Not Lost hy Delay in Acting upon, When — Change in Law Regulating Assessments Pending Action — Irregularities in Procedure — Validity of Assessment Against Grantees.

    1. A municipal council does not lose jurisdiction over a petition for a street improvement by reason of a delay of two years in taking action thereon, nor are the petitioners relieved from their obligation to pay the assessment by reason of such delay.
    2. A change in the law regulating the levying of assessments for street improvements, made while the petition for the improvement is pending before council, does not have the effect of invalidating the assessment, where it does not appear that the petitioners abandoned the effort to secure the improvement, and the validity of the assessment is based upon their agreement to pay it, and not upon any statute.
    3. Moreover, as the law stands now, and as it stood at the time this improvement was ordered, a petition was not necessary to render valid an assessment to pay the cost of acquiring property for the purpose of straightening a street.
    4. Failure of council to determine in advance the manner in which an assessment shall be levied, or to give notice to property owners of an intention to levy an assessment, does not render the assessment invalid, where the petition for the improvement did not specify the manner in which it was desired the assessment should be levied or particularize in other ways as to the plan to be adopted in proceeding with the improvement,

      5. The lien of an assessment attaches from the date of the passage of the assessing ordinance. Purchasers of property prior thereto and without notice are not liable for the assessment.
    6. The whole cost of the improvement in question was assessed against the petitioners, who were less than a majority of the abutting owners both in numbers and feet front. The court holds that this was inequitable, and not in accordance with a fair construction of the petition; and orders that the assessment be set aside and that a new assessment be levied, which will place upon the property of the petitioners only their fair proportion of the cost of the improvement.
    Parker, J.; PIaynes, J., and Wildman, J., concur.
   This ease is here on appeal. It is an action to enjoin certain assessments levied by the city. The assessments are for the costs of the acquiring of certain 'real estate to straighten Twelfth street at a point where it runs into Union street, so as to make it continuous to Union street without a jog, which requires the taking of lots 92, 93 and part of lot 94, lying upon the west side of Union street and the north side of Jackson street. It appears that the city acquired this property by condemnation proceedings for the purpose of straightening the street, as is stated; and that the cost, the entire cost, including the costs which were assessed upon certain property upon Union street and upon Twelfth street, amounted to about $2,650.

The persons whose property was assessed to pay these costs joined in -this case to enjoin the assessment. Their properties lie along Twelfth street, between Adams and Jackson, and on Jackson street and Union street, between Jackson street and Woodruff avenue. They contend that this assessment is invalid on various grounds that I will take up and discuss in their order. But first' it may be said that it is conceded on all hands that in a strictly adversary proceeding, the assessment may not be made upon private property for the costs of an improvement of this character. It has been so held in the case of The Cincinnati, Lebanon & Northern Railroad Co. v. The City of Cincinnati, 62 O. St., 462, and more distinctly in the case of The City of Dayton v. Bauman, 66 Ohio St., 379. It was held in those cases that the law providing for the assessment of the costs of improvements of this character upon beneficial property is unconstitutional.

But this is not the only ground upon which plaintiffs undertake to have the assessment enjoined; for it is insisted upon the part of the city that the circumstances of this case are such as that these property owners are required to pay the costs of this improvement under the doctrine of agreement and estoppel laid down and enforced by this court, /as we believe in accordance with the decisions of the Supreme Court in the case of Hendrickson v. Toledo, 3 C. C. — N, S., 355. The plaintiffs insist, however, that this case does not apply to the case at bar; that there is nothing in the circumstances of this case that would justify the levying and collecting of this assessment upon the theory that there had been an agreement to pay, or that there was any estoppel.

The history of this ease, briefly, is as follows: In 1900, in the latter part of the year, and the early part of 1901, a petition was circulated among the property owners along this part of Twelfth street and Union street, which was signed by some of them, including the plaintiffs here, or part of the plaintiffs here, asking the council to straighten Twelfth street by acquiring this property so as to take out the jog where Twelfth street and Union street come together. It appears from the oral testimony that we have heard that this place was very unsightly and the people of the neighborhood were anxious to have this improvement made for that reason; that the lots were low and had been filled in with all sorts of debris and just at this point jutting out into the street where it was plainly visible from all these properties (which was residence property), there was an old shanty that was sort of an eyesore of the neighborhood. So it appears that this petition was prepared and circulated and signed. The persons who were active in forwarding this enterprise and had this improvement made were Mr. Macomber, Mr. Drago and Mr. Thomas, each of whom owned property in the neighborhood. That petition reads as follows:

“To the Honorable Council of the City of Toledo, Ohio—
“Gentlemen: We, the undersigned, owners of property fronting upon or abutting upon Twelfth street, between Adams street and Jackson avenue, and on Union street between .Jackson avenue and Woodruff avenue, respectfully petition your honorable body to take the necessary steps to condemn and appropriate for public use and highway, lots 92, 93 and so much of lot 94 as is necessary in Central Addition to said city for the purpose of extending Twelfth street a uniform width to Union street and widening said Union street. We believe and acknowledge our respective properties would be benefited by the opening and widening of said street, as stated above. We consent that a special assessment be made upon said street- as stated above. We consent that our respective properties, be so assessed for the purpose named herein as provided by law.”

When this petition was first prepared, instead of being addressed as I have read to the honorable council, was addressed to the honorable common council. It seems that during the pendency of these proceedings in the council, the new code was adopted, and that the designation of the council became simply the council, instead of, as it had been formerly, the common council. And some one has made it conform to the new name by striking out the word “common”; otherwise the petition itself is unchanged.

Mr. Lowenshal was the' agent of the parties circulating this petition, and it appears that he was actively engaged in forwarding this work until sometime in June, 1901. He had filed the petition with the proper officers of the city -somewhat earlier, but he still manifested interest in the matter, and on the 2-2d day of June he attached a certain affidavit to the petition and he says that upon that day he urged the city solicitor to push the matter forward. I am particular about mentioning these dates because it is urged upon the part of these property owners as one of the grounds of relief that the council of Toledo was so long in acting upon this petition that they lost jurisdiction of the matter. That, as we understand it, is the substance of the claim on the subject of delay, and that in the meantime before action was taken by the counsel there had been a change in the law on the subject.

Now it appears from the testimony of Mr. Northup, who was assistant city solicitor at that time, that he endorsed upon the wrapper then upon the petition, in accordance with the customs of that officer, that the petition was not approved, and I believe he stated in Jiis testimony that he did that upon the ground there was not a sufficient number of signatures to it. It seems that the matter was taken up afterwards and other names were signed to the petition and a new back was put upon it; that the people upon the streets were not content to give up, but still desired to have the straightening of the street accomplished; so it seems to have been circulated again, some .six Jor seven other signatures were obtained and the petition was then refiled on May 15, 1903. In pursuance of this petition a resolution to condemn was adopted on the 29th day of June, 1903, and an ordinance to appropriate was passed on the 28th day of July, 1903. In pursuance of this the property was acquired, and on the 11th day of April, 1904, a resolution to •assess was adopted, the report of the assessors was received on May 4, 1904, and the assessing ordinance was passed on July 18, 1904; and soon thereafter in pursuance of law the assessments were certified to the county auditor and entered upon the tax duplicate against these properties.

Now we are of the opinion that this delay alone was not sufficient to invalidate the petition, notwithstanding the fact some changes in the law were made in the meantime. The parties never withdrew their petition or took any steps at all towards dropping or abandoning it; and the change that was made in the law -appeared to be a very immaterial matter; for, if these assessments- -are to be sustained at all, they are.not to be sustained upon the theory -that the law authorizes them, but upon the theory that the parties had agreed to be assessed; had agreed, in other words, to pay. the costs of acquiring this property for the straightening of thi-s- street; and that therefore they were bound to pay, because the city had gone forward and acquired the property and incurred the expense in pursuance of their request and their promise.

'The effect of such action, according to the views of this court, is very fully discussed in the Hendrickson case, and it is not worth while to go over that branch of the subject again. I simply add the remark, however, which I think appeared in that report as well, that the law is only effective to this extent (the law being invalid or unconstitutional and not enforceable .at law), that it is looked to and regarded as a scheme or plan for the making of the assessments which is -adopted by the parties as a part of their agreement, when they request that an assessment shall be made and agree that they will pay it.

At the time this petition was filed there was a law upon the statute books which provided for assessing the costs in this sort of an improvement, and it gave in detail the plan for making the assessments. After this decision by the Supreme Court holding that that law as to this class of cases was unconstitutional, when the Legislature came to the adoption of the new code they did not undertake to provide for the assessment of costs of this character upon the property of a private owner, and that is the change in the law referred to. Bxrt the law, after it was repealed, it seems to us was about as effective in the way of stating a plan of operation as it was before, it being only necessary for that purpose to find that the parties referred to that law for that plan and adopted it as their plan and made it part of their agreement; and we think that this was so in this instance; and we think that if there were nothing else in the way of the enforcement of these .assessments, they might be and should be enforced upon the theory and principle laid down in the Hendrickson case.

It was said in the Hendrickson case that the only objection urged on the part of the property owners to the assessments there was that the law was unconstitutional; but here, as I have indicated, there are other objections made to them, and one of them which the plaintiffs seem to regard as very material is that the owners of property between the points where the assessments are levied, between Adams street and Woodruff .avenue, that there was not a majority of the owners signed the petition, not a majority of the owners of the feet front, and ■they call attention to Section 2267 of the Revised Statutes of Ohio, which they contend requires such majority; -and it is said in argument that we seem to have regarded that as important in the Hendrickson ease. We referred to it there — and there had been a majority signed the petition in that case, but upon an examination of the statute we find that the law has been changed in that respect since the transaction involved in the Hendrickson case; that at that time such a majority of signers was required, and therefore we hold that it must have been contemplated by the petitioners when they signed this petition — even regarding it as a proposal or basis of an agreement; it must have been contemplated that a majority would sign, and that the agreement or the proposal would not be binding until a majority had signed. And so counsel urge here that the council of the city was not authorized to act upon this as- a proposal and make of it an agreement until it had been signed by a majority; but as I say the statute in that respect has been materially changed. Section 2267, as it then read will be found in Volume 92 of the Ohio Laws, pages 340-341. As it read at the time of the transactions at bar it will be found in Volume 94, Ohio Laws, at page 161; and with respect to making assessments upon petitioners in cities of this grade and class contains in parentheses this exception:

‘ ‘ Except sidewalks, sewers and the appropriation or otherwise acquiring lots or lands for the purpose of laying off, opening, extending, straightening or widening streets, - alleys, or other public highways, for the power to make which improvement no petition shall be necessary.”

That is, for improvements of that character, no petition was required. The statute that I have been referring to is Section 2267. Turning now to Section 2271, which is also invoked, we do not find that it requires a petition at all in a case of this character. Our construction of that section is that a petition is only required, or was -only required a® the law stood at the time of these transactions, in order to authorize an 'assessment upon property for -an improvement of this character, where it was sought to assess back upon property from which the street or part of the street was taken, or where it was sought to assess upon property upon intersecting streets', generally a petition was not required at all, and a petition would not be required of persons standing in the relation to the improvement that the plaintiffs here stand to this improvement.

It was' ‘also urged that Section 2264 of the Revised Statutes of O'hi-o provided certain prerequisites to the making -of an assessment, which must be observed; otherwise the assessment would not be valid. That section as it then read was as follows:

“In cases provided in Section 2263 and in cases where an improvement of any kind is made within cities of the second grade of the first class, and in corporations in counties containing a city of the second grade of the first class, of an existing street, alley, avenue, navigable water-course or other public highway, and whenever any street, alley, avenue, navigable water-course or other public highway is opened, extended, straightened, widened or improved, the council of such cities or corporations may decline to assess the costs and expenses mentioned in Section 2263 or any part thereof, or the cost or expense of any part thereof of such improvement, except as hereinafter mentioned, on the general tax list, in which event such costs and expenses, or any part thereof; which may not be so assessed on the general tax list, shall be assessed by the council of such cities on the abutting and such adjacent and contiguous' or other benefited lots and lands in the corporation, either in proportion to the benefit which may result from the improvement, or according to the value of the property assessed, or by the foot front of the property bounding or abutting upon the improvement, as the council by ordinance, designating the territory to be assessed, may determine before the improvement is made, and in the manner and subject to the restrictions herein contained.”

Then there is a further provision as to how the assessment shall be paid. It does not appear that the determination of the property to be assessed, or how the property should be assessed, was made by the council before they acquired this property.

We are cited to some decisions to the effect that this is a necessary prerequisite to the validity of the assessment. But as I have remarked before, this was not a strictly adversary proceeding; it was not adversary at all. If it is to' be sustained at ■all, it is to be sustained upon the theory of agreement; and we do not understand that in a case of this character where an assessment is to be sustained upon the theory of agreement or estoppel, or both, that the council is required to observe all these provisions as to the mode of proceeding. They must be substantially what is requested, what is agreed upon. They must acquire the property, levy and assess the cost thereof upon petitioners according to the plans provided for by the statute. The petitioners for the improvement are, so to speak, in. court. They have gone before the council. They are subject to its jurisdiction; it is not necessary to serve them with notice of what is going on at every step. They have come in and asked this to be done; they must take notice of what is being done, so long a® there is no attempt at concealment or fraud or undue advantage. They have petitioned for this improvement and ■they ask that it be assessed upon certain property; therefore, it is not important to them if the council before it proceeds should determine upon what property the assessment is to be laid, for if the agreement to assess has been agreed upon, it is not important to them if the council should determine before it acquires- the property upon what plan the assessment shall 'be made; for they have agreed as we construe this proposal that it shall be 'assessed according .to any lawful plan provided in the statute in such cases; and there seemed to have been several plans provided in the statute in such cases; and the plan adopted here was to -assess according to the benefits, according to the report of the assessor, and certainly that would not be- an inequitable or unfair plan. That was one of the plans in the statutory scheme of assessments.

Now upon this subject, or, as being related to it, I call attention to the decision in the case of Murdock v. Cincinnati, 44 Fed. Rep., 726, by Judge Jackson of the Circuit Court of the United States for the Southern District of Ohio. The decision was made January 7, 1891. I read from the syllabus:

“A property owner who petitions, for a street improvement, expressly requests that an assessment be made to p-ay it, and agrees to answer for -a deficiency in the collectibility of the assessments against other property owners, thereby waives to insist upon notice or an opportunity to be heard before the assessments are levied.
“The proceedings of city authorities in levying an assessment for a street improvement, in the exercise of the power conferred on them by statute, and in compliance with a petition therefor, can not afterwards be impeached by an abutting owner, as being without due process of law, for the lack of notice or opportunity to be heard.”

There is more to the same effect in the opinion, but what I have read from the syllabus indicates what will be found in the opinion. The whole opinion upon the subject is worthy of perusal by parties interested; and we think the principle there laid down .and discussed is applicable to what I have been discussing, with reference to these preliminary prerequisites in the council. And it is applicable also to the next proposition urged by counsel, that no notice was given to them of the proceedings or of the purpose to assess, etc., and I shall not discuss that further. The ordinary statutory notice was given or the one provided by law; that is to say, the published notice in the newspaper that an assessment had been made and was on file, giving the parties an opportunity to come in and object. And it appears that nobody came in, n0' objection was made; thereupon the assessment was confirmed. The statute provides that upon objection proceedings shall be taken to correct the assessment or make it just and right.

It is also urged on behalf of these plaintiffs that the council has not given them what they asked for; that instead of giving them a street, instead of straightening Twelfth street, widen-, ing Union street, they have acquired the property and turned it over to somebody else as a dooryard or private park, or something of that sort. It does appear that immediately contiguous •to this piece that was acquired by the appropriation proceedings Mr. Macomber has built a flat building and that he has filled up his low ground in front and sodded it and put in some trees. This appears to have been done upon the permission of the board of public improvements, 'and seems to have been a sort of improvement for -the neighborhood, because it made the place more sightly. But that it belongs to the city there can be no question and it is a part of this street, and it wiil be observed that the petitioners here have not asked for anything more than that it shall be acquired as part of the street. They have not asked that it be improved by paving or otherwise, and it is not to be supposed that upon the proper application the city would not take possession of it by paving it; in removing the old structure that stood there and making the place sightly, it seems that the real object desired by the petitioners has been substantially accomplished. But we hold that it is a part of the street — what the petitioners have asked for has been done.

Certain of these plaintiffs have acquired the lots assessed since, these proceedings were instituted — I mean after the petition was filed in the council. Now an assessment becomes a lien upon property under Section 2255 of the Revised Statutes from the time it is made, which we understand to be from the time an ordinance was passed levying it; and those who have purchased lots upon the street without notice prior to the passage of the ordinance are not bound by the assessments upon their lots, It is said by the city solicitor that all ought to be bound who purchased since the passage of the ordinance providing for the appropriation. But we think not; there is no reference in that to any assessment, ndthing said about making any assessment in that, because the first time the council tabes action looking to an assessment to bind the property is when it passes the assessing ordinance. Of course preliminary to that it had sent out the assessors.

Now this whole cost, as I have said, has been assessed upon the property of the petitioners. They are less than a majority of the owners of property within the limits described in the petition. They own less than a majority of the foot front of property. Other property situated just as their property is situated, benefited in the same way, to the same degree, has escaped the assessment altogether. Of that perhaps they would have no right to complain, were it not for me fact that the assessments which would naturally have gone upon that property, if all the property had been assessed, 'has gone upon their property ; and it has increased their burden. It is urged by the city solicitor that those who signed the petition agreed that they would bear the whole burden. It would follow that the council might have taken action upon one person signing the petition and assessed the whole cost against him upon -his property, or that they might have proceeded with a petition signed by two or three. Undoubtedly the parties might agree to such a thing and be bound by their agreement. But we think that it should appear very clearly they 'had agreed to that before the court, would undertake to enforce a thing which would seem to be so unreasonable and inequitable. We do not put that construction upon this petition. When the petitioners have asked that the cost and expense be assessed upon the property abutting upon said streets as set forth above, we think that they meant, and that it is very clear, that they meant, the property bounding or abutting on Twelfth street, between Adams and Jackson, and on Union street, between Jackson and Woodruff:, and that they agreed to pay only their fair proportion of the costs, taking into account all this property between Adams street and Wood-ruff avenue. For the reason that this assessment has not been made according to that plan, we feel compelled to set it aside, and we do set it aside. But we believe a valid assessment may be made in pursuance of that petition if the council will take into account all of the property between those streets in such manner as to only assess upon these properties, the properties of these plaintiffs, their fair and equitable proportion; and therefore we set this assessment aside, without prejudice to the rights of the council to proceed in pursuance of law and make a reassessment.

Alvord & Pnce, A. T. Goorley, Templeton & Templeton, for plaintiffs.

U. G. Denman, City Solicitor, and G. E. Friedman, Assistant City Solicitor, for defendants.

The costs in this case will be adjudged against the city.


author: Per Curiam.

text:
    ATTACHMENT SERVED UPON A MANAGING AGENT.
    [Circuit Court of Hamilton County.]
    Amy B. Foote v. The Central American Commercial Company.
    Decided, July 26, 1904.

      Attachment — Authority of Common Pleas to Discharge on Error to Justice of the Peace — Service by Publication — Managing Agent of Foreign Corporation — Sections 6480, 6733 and 6496.
    1. The jurisdiction of the court? of common pleas is limited, in an attachment suit presented on error to a justice of the peace, to the entering of a judgment of reversal with judgment for costs accrued up to that time.
    2. A plaintiff in an attachment suit, upon a showing that summons can not he served upon the defendant within the county, is entitled to obtain service by publication.
    3. The collection of subscriptions for lands of a foreign corporation does not make the collector a “managing agent” of the corporation upon whom service of summons may be made, notwithstanding he is a director of the company.
    Heard on error to the court of common pleas.

      The plaintiff, Amy B. Foote, brought suit against,the defendant company before a justice of the peace. Summons issued for the company was returned, not found. An alias summons was then issued, which was served on Herman Duhme as “managing agent” and was so returned. An attachment and garnishment was also issued, and this was served upon Mr. Duhme as garnishee. The company, claiming that Mr. Duhme was not and never 'had been its “managing agent,’” filed a motion before the magistrate to set the service aside. This motion was overruled, and the attachment and garnishment sustained, and judgment for the amount prayed for was rendered against the defendant company. The company entered its objection to all the proceedings, and took a bill of exceptions.
    It appears that Duhme was a director of the Central American Commercial Company, and that he was a subscriber to the lands, and had collected payments, from other subscribers in his vicinity, reserving his commission therefor, but had transacted no other business for the company. The service of summons was attempted to be made under Section 6480, Revised Statutes, providing for service on foreign corporations generally by serving its “managing agent.”

      Theodore Hallam, for plaintiff in error.

      Joseph L, Laohn&r, for defendant in error.
   Per Curiam.

Herman Duhme was not the managing agent of the defendant, a foreign corporation, within the meaning of Section 6480, Revised Statutes, upon whom service of summons could be had, and the court’of common pleas properly reversed the judgment of the justice of the peace. There was error, however, in discharging the attachment, as the court was authorized under Section 6733, Revised Statutes, to render only a judgment of reversal and for costs accrued at that time.

The plaintiff below was entitled, upon a showing that summons could not be served upon the defendant within the county, to obtain service by publication. Section 6496, Revised Statutes.

The judgment for reversal and for costs will be affirmed, and in all other respects the judgment will be reversed,