text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Oct. Term, 1893.)
    Before Bentley, Haynes and Scribner, JJ.
    THE CITY OF TOLEDO v. THE L. S. & M. S. RY. CO.

      Railroad Bridge at crossing of unimproved street — Duty to maintain bridge—

    fl). It is not necessary that a street should be placed in prime condition for public travel in order to lay upon a railroad company passing over it the obligation to maintain a bridge over it.

      Same — Doubt as to existence of street at time of locating railroad —Forty years’ acquiescence — Effect—
    ■(2), In an action to compel a R. R. Co. to maintain a sufficient bridge where its track passes over a public street, the R. R. Co. denied its liability to construct and maintain such a bridge, on the ground that when its right of way was located there, there was no public street at that point; that such street was opened there after the location of the railroad, ■and that the erection of the bridge there forty years ago, was merely an act of complaisance on its part towards the public; held, that although the evidence whether there was a public .street at this point at the time the railroad and bridge there was constructed was doubtful, yet from the fact of the continuation of this condition and the acquiescence of all the parties therein for forty years, the court holds the R. R. Co. liable to maintain the bridge at that point.
    Appeal from' the Court of Common Pleas of Lucas county.
   Bentley, J.

The questions in this case are worthy of more elaborate treatment than we shall be able to give them in announcing ■our opinion.

In April, 1853, the Northern Indiana Railroad Co,, the predecessor of the defendant, The Lake Shore and Michigan Southern Railway Co,, began proceedings in the probate court of this county fur the appropriation of a strip of land on the northerly side of subdivision 2 of river tract No. 5 in this city, for a right of way for its contemplated railroad, said strip being about 150 feet in width. On June 10, 1853, such appropriation was completed by the payment of the amount of the award in the probate court. Some two years later said railroad company caused the grading necessary for its roadbed, through said strip lengthwise, to be done, and in so doing made a cut at the point where Broadway crosses said right of way at the present time, to the depth of about twenty feet. Over this cut, and at that, point, the company then, at an expense to itself of $1,800, constructed a substantial bridge “to accommodate the public travel,” as it says in its answer in this case; and it and its successors in the title and use of said railroad, including the defendant, have, at their own expense, maintained a bridge there ever since, which has been used constantly by the public ever since Broadway has been a public street until a time not long prior to the commencement of this action, when the bridge at that place had become inefficient for the needs of the city, and unsafe and dangerous to those who might have occasion to pass there, and especially unsafe for the passage of street cars which the city had authorized to run acrbss there. Thereupon the city having-condemned the bridge as unsafe, notified the defendant it was required to build a new bridge at that point sufficient for the accommodation of the public travel along Broadway, which was largely increased, and the street tracks, bearing heavy electric motor cars having been laid thereon since the present bridge was built. The company refusing to construct such new bridge, the city began this action for a mandatory injunction to compel the defendant to construct it. The railway company admits that a new bridge over its-track at Broadway is needed, and that it is competent for the court to grant the relief prayed for if the company is under obligation to maintain any bridge there; but it denies that it is so obliged, for the reason that while it is admitted that Broadway was at the commencement of the action, and is now, a public street of the city, it' was not such street when the predecessor of said defendant appropriated said right of way, nor when it constructed its grade,.and it is claimed that in constructing said original bridge, and in maintaining and renewing it from time to time, the Northern Indiana Railroad Company, and afterwards the defendant, each acted under soma misapprehension of its rights and duties, or that each acted in that regard simply by reason of the complaisance of certain officers or agents, or their desire to manifest their general good will, and that there was, in fact and in law, no such obligation upon the railroad companies; that this construction and maintenance "jf a bridge in no wise interferes with the right of the defendant,nor to maintain its denial that there was any original liability of the Northern Indiana Railroad Company to construct any bridge.there, or any liability for it or the defendant at any time^since^to maintain one there. On the other hand, the city claims that there was a valid and existing street there at the time'tbat the appropriation proceedings were begun and werejconcluded, and when the track was graded.

s The testimony which was”produced before us brings up many interesting factspn the|history of the city, and enables us, almost judicially, to refute the ancient slander that the Maumee country was unhealthful; because a large company of bale and hearty^persons appeared before us as witnesses, who had enjoyed the felicity of a residence in this salubrious region, some o£|them for ten, others for fifty and sixty and even seventy years, and their appearance would indicate that the conditions there were favorable to longevity, at least.

The testimony bore more particularly upon the situation of Broadway in the oldMays, before this appropriation of 1853, and during that year and during the years since.

There is a statute bearing"jupon this matter, found in section 3284, Revised Statutes, which reads as follows:

“A company may, whenever it is necessary in the construction of its road to cross a road or a stream of water, divert the same from its location or hed; but the company shall, without unnecessary delay, place such road or stream in such condition as not to impair its former usefulness; and any or all railroads hereafter constructed, which shall cross any avenue or public highway leading from a city of the first or second class, to a public cemetery of such city, situate within or without the limits of any such city, shall be constructed so as either to pass under or over such avenue or public highway, at such elevation or depression as the case may be, as will allow the unobstructed passage of all wagons, carriages, or other vehicles which it may be necessary for any person to use upon such avenue or public highway,”

And it is claimed that by reason of this statute, a statutory liability was incurred by the predecessor of the defendant to build this bridge,and by itself and its successors to maintain it. It is also claimed that, independent of a statute, if there was a public highway across the right of way of a railroad company at the time it acquired such right of way and constructed its road, there was a common law obligation resting upon the railroad company, in reason and in fairness, to make it possible at that point to safely cross its railway, and to erect and maintain auch structures as would be reasonably necessary for the public highway at that place.

As is well understood, the principal controversy in this case is as to whether Broadway was, in legal acceptation, a road or street of the city, at the time of this appropriation; or, as another phase of the question might put it, at the time that the grade of this railroad was constructed at that point; and to this question mainly the testimony of witnesses and the evidence introduced were addressed. It was claimed upon the part of the city that before the acquisition of any right by the original railroad company at this point, there was a legal and valid establishment of Broadway at that point, and it is also urged on behalf of the city, that whether that is true or not — that is, whether the road had been established according to the forms of any statute bearing upon it — 'there was in fact a public highway there, recognized and used by the public, and an obligation upon the city to keep it in repair as a street of the city; and if this road was not laid out and established by the ordinary processes under the statutes, it had become so by a aommon law dedication upon the part of the owners of the lands and an acceptance of the dedication by the public authorities. The contention of the city is, that in either view of the case, the obligation of the railroad company to construct and maintain the bridge was equally binding.

It is common learning, that in order to establish a public highway without the ordinary forms prescribed by the statutes, the owners must be willing to dedicate the land for the purpose, and they must in fact dedicate it, and in addition to that, the public-authorities must accept the dedication. If either of these things is wanting, there is in law no public highway at the point. This being the law, it became and was proper to receive any testimony or evidence which would bear upon either of these phases of the question — 'that is, which would tendeo show a dedication upon the part of the owners, or its actual acceptance by the city and public authorities, or the public.

During the introduction of the evidence in the case, various objections were made by the defendant’s counsel to the introduction of evidence as to certain things done by the city council by way of approving of certain maps which had been made, which exhibit Broadway as extending over this point in question before 1853; the ordinance of February 21, 1852, and the reports of the assessors in this case; the ordinance or resolution by the council approving the Hart map — so-called; the ordinance of September 15, 1853, establishing the grade of Broadway; the ordinance of December 9, 1853, under which a contract was made with one Oonolly for grading Broadway; and various other items which were claimed by the railroad company to be inadmissible as evidence, on the ground that even if said proceedings were had, they did not accomplish the purpose which the city claims was in fact accomplished. All this evidence, and I will not go over it further in detail, was received temporarily by the court, with an intimation that it might be hereafter ruled out upon application by the attorneys of the railroad company, if, upon further investigation, we should conclude that it was inadmissible. In considering the case, and in View of our understanding of the law’ regarding the facts that may bear upon the question of dedication, we think that all of the testimony, each item of evidence thus received, should be considered by the court; and the motion to exclude it will be overruled, and it will be considered for such purposes for which, as we think,it is properly receivable.

There was a great deal of testimony given through the course of the trial as to there being what was called in those days the “River Road'’ between Toledo and Maumee, Upon the one hand, the city sought to show that this road, however called, was a road that since a time long prior to April, 1853, followed substantially the course that Broadway now takes, and especially at the point where Broadway now crosses this railroad. On the other hand, it was contended by the defendant that the river road was wholly northerly from that point, and surveys of that road made at various times, were introduced, and testimony was addressed to the point as to where, in fact, such a road was used. Now, upon this question of fact, so far as it may be necessary for us to announce any opinion regarding it, we conclude from all the light that we have been able to .focus upon it, that the river road, as legally laid out and established, was not at the point in question over what is now the line of Broadway, but was northerly of Broadway, and that as a general thing the travel along what was called the “River Road” went northerly from the place in question. There is, however, testimony tending to show that there was a public travel over the line of what is now Broadway at this point, and that whether it followed the legally established River Road or not, it was the customary way for the public to travel,for a great many years, and that in fact there was a public road there, which, under the charter of the city and the laws applicable to the case, became one of the public streets of the city, however named, or whether having any name or not. As I say, there was some testimony tending to show that. Some of the witnesses stated their recollection that that was the case. We are inclined to think that there was quite an amount of travel from time to time over what is now called Boradway, perhaps this side of the ravine which was largely spoken of by the witnesses, and this side of the railroad crossing, and perhaps again on the other side. We would be unable to conclude, however, that this travel was sufficient to establish, by a mere user, a road there; the length of time and character of travel would not warrant such a conclusion; and neither is there sufficient testimony that the road was so used at this point, so uniformly and long, with the knowledge of the proprietors of the land, that any common law dedication might be presumed or found to have been made by the owners. If there was a street there, we think it must be gathered from other considerations than the mere fact that the public .bad travelled over there a long while and had-established it by user. Better than the recollection of witnesses as to roads among the trees and through the woods, many years ago, having more probative force, we think are the records that were made at the time by skilled persons actually'measuring the point in qunestion and surveying it, and noting their observations at the time, when there is no chance that there was any idea of controversy, present or 'future over the facts they thus state. And we are inclined to think that, the road which was followed by the travel in general,at this point deflected to the north, and went around the head of this ravine, rather than right through it at this point. We-gather this not only from the testimony of the witnesses as. to the actual use of the road there, but from the evidence-showing the situation and character of the land at this-point in question.

There is other evidence bearing upon the main issue here-which we will now proceed to consider, I may not state it-in its proper order, but will endeavor to follow the line of' the main features, so that it may be seen upon what basis we have placed th3 conclusion at which we have finally arrived. As I said, we think it is proper to consider all of' the facts and circumstances bearing upon the situation hereabout 1852, or shortly before that, and at some time after that, the acts of the parties owning this land, and the action of the public authorities regarding this street. I will’ recite now some of these things that might be considered as bearing upon one or the other of these points.

In 1847, there was a plat of the streets and alleys dedicated to public use, upon which was shown this end of' Broadway as dedicated to the public as far as Newton street, and not further. .On September 4, 1851, there was quite a-large number, or several persons, who owned what was called “River Tract No. 5.” The railroad strip of land was taken off of the northerly side of River Tract No. 5, or a portion of it. September 4, 1851, there was a suit begun in the court of common pleas of the county between all of the owners of this tract and some other tract, in order to obtain a partition of the lands between the several owners. Commissioners were appointed in the course of that proceeding under the statute, and finally they made a report-on February 23, 1852, in which they partitioned the land. A plat accompanied their report, and was made a part of it,. which was a map of the lands in question. Their report was written upon this map, and in order to understand that report, or to determine what tracts were set off to each of the owners, a resort must be had to the plat, They set off to one of the owners a tract wnich they designated as subdivision 2 of this river tract No. 5, the sides of which came up to the north line of river tract 5. ' This subdivision 2 was set off to one of the parties to the action, named Neis-wanger. This map exhibits a prolongation of Broadway from Newton street in the direction of Broadway that had already been dedicated, through the entire tract of land, as far as the city limits, now South street. The plat or map showed this street, and upon it was written “Broadway,’1 but there were no words in the report which said that that was a street which the commissioners had laid out or dedicated, but it simply exhibited a street there and called it “Broadway.” Upon this street, however, some of these subdivisions were bounded. Subdivision 2, of which I have spoken, extended both sides of this projected street, but other subdivisions were bounded upon the center of this street. This report and return of the commissioners was confirmed by the court, and apparently the parties acquiesced in the partition. I will repeat that the report was made and confirmed February 23, 1852. On February 21, 1852, the council passed an ordinance extending Broadway along the very line that two days afterwards appeared in the report of these commissioners, and providing that the land be condemned for the purposes of a public street there, and appointing commissioners to assess the damages to the owners. It seems that the commissioners who were appointed were O. 0. Helsey, 0. D. Woodruff and P. H. Shaw. On February 23, 1852, they made a report stating that they had viewed this line of Broadway to estimate the damages and found that no damages would be suffered by the owners. That seems to be the last of that proceeding, so far as it is exhibited in the public records of the council. On March 6, 1852, the map which is called the Hart • map —'Showing Broadway established as indicated in this partition plat, and as also indicated in the ordinance of the council just alluded to, was by ordinance approved by the council. On April 23, 1853, Northern Indiana Railroad Company filed its petition to appropriate this land for railroad purposes. On May 23 and 25, 1853, there was a verdict of the jury awarding damages, and June 10, 1853, the company paid the money awarded into the probate court (the probate court having confirmed the verdict, it seems, May 25, 1853, and at the same time that it was returned). September 15, 1853, an ordinance was passed by the council which established the grade of Broadway along this line clear through to South street — the city limits. On December 9, 1853, an ordinance was passed for the actual grading of Broadway along this line, and under this ordinance, not long afterwards, a contract was awarded to one Conolly :to do the grading. In the line of evidence and testimony •there comes next in chronological order the testimony of Mr. Marston, small portions of which I will read. We regard his testimony as important. He was a surveyor, a civil engineer, and he came here December 4, 1853, and ■says he was in the service of the city engineering department, and thereupon this question was asked him:

“Q. You may go on and state what the work was, or ■service, where it was performed, and what it was about? A. Well, the first that we went on to Broadway was May 22d, We run levels over Broadway in 1854.
“Q. Whereabouts did you begin? A. I don’t remember where, but I think we- — my recollection is that we run the ■entire length of it.
“The Court: Q. You commenced that day, and ran the lines where? A. I am not positive — -
“Mr. Potter: Q. What was the day? A. May 22d.
“Q. Under what contract for improvemént was that — in what contract? A. I don’t think it was under any contract. I think it was merely for the purpose of making a profile, or something of that kind.

And he worked only that day at that time.

“Q. And where did you start from and where did you go to? A. As I said before — I wouldn’t say positive, because we only ran levels over Broadway. I should think by that, that we went over the entire length of it — because the next time we were there I put down that we ran the levels over a part of Broadway, and if we hadn’t gone over the whole of it at that time, I should have probably have noted then that it was only a part.”

Lower down he says, in answer to this question:

”Q. At that time, what was the condition of things up there so far as Broadway was concerned — what condition was that locality in or the road in? What did you find? A. I won’t say positively, but I don’t think there had been anything of any grade made then; I think as far as around the railroad — all beyond the railroad — there had been no grade of any consequence at all; my recollection is that there was not any. .As near as I remember it, we ran that profile as a sort of a test of the levels of some previous levels which had been taken before.”

Then he speaks of the condition in which he found the ravine, and further over is the further question:

”Q. What.was the condition of Broadway as to being opened up when you went there to run these levels the first time? A. I can't say anything more about that first time that I was there I have said. The next time I was there was September 20, 1854. I don't know any reason why we didn’t go up there any oftener except that it was the year of the cholera and there was not much work done. There was not any engineering work done there during that interval. because if there was any done, why, I went. Then I ran levels over a part of Broadway; and at that time the grade had been commenced on both sides of the ravine and the ravine partly filled up, and the road had been cut out beyond the railroad — I don’t remember how far, but at least beyond Western avenue — cut out its entire width at .least beyond Western avenue, and it was partly graded down on both sides of the ravine, and the ravine partly filled up, September 20th. • At that time the street was under contract with Conolly.”

Then M.r. Marston proceeds to state regarding the river road and some surveys regarding that.

The contract being made with Mr. Conolly at some time previous to the time that Mr. Marston speaks of here, the grading was completed in 1855, and on November 13, 1855, an assessment to pay him was confirmed by the council. Some time after this, the railroad company being assessed to pay a portion of this grading which had been done under Mr. Conolly, refused to. pay it. Suit was brought by Mr. Conolly against the railroad company to compel its payment, and this finally went to the supreme court, the case being reported as Railroad Co. v. Conolly, 10 Ohio St., 159, and the railroad company was compelled to pay this assessment. When the railroad company came to make its grade, which was perhaps in 1855 and 1856, it cut down the grade at this point of extended Broadway about twenty feet, and, as I have already recited, it constructed at an expense of some Si,800 this bridge, it says to accommodate the public travel, It and its successors are to maintain that bridge, or a bridge, at that point, until the present time, and from that time on the public have had possession of Broadway, and travelled it constantly, and the city authorities have treated it as a public street. Everybody seems to have acquiesced as if that' ordinance was valid.

On the other hand, the claim by the railroad company is, that there was no street there at the time that it acquired its right of way, viz.: in 1852 and 1853 — in the summer of 1853. It says that the ordinance passed by the council in 1852,seeking to condemn that property for street purposes, was utterly void and of no effect, because, while that proceeding' might have been in conformity to the original charter of the city which had been granted years before, yet in the meantime the new constitution of 1851 had been adopted, and there was no provision made, as required by’ the new constitution, for the assessment of damages to the property owners by a jury where property was condemned for public purposes, and that as certain sections of the constitution required that, an attempted condemnation under the old form of proceeding was void by the very force of the new constitution, As a strict matter of law, we suppose that that was true; we suppose that the ordinance thus passed by the council did not effect the legal condemnation of that property, did not estop nor prevent the owners from asserting ownership over it, if they had seen, fit; but it will be remembered that the new constitution had gone into effect but a short time before that, and there was yet no decision of the supreme court construing these new provisions or defining what their effect would be upon such proceedings taken under old charters or old laws. The court afterwards did pronounce upon that subject, in a case reported in the 2 Ohio St., I believe. But it would seem that no party connected with the transaction here in view, regarded the effect of the provisions of the new constitution. The attorney who represented the railroad company in defending against that assessment suit of Conolly to enforce that assessment (being Honorable Morrison R. Waite) did not urge this point, but seemed to rely upon the claim that as the railroad company simply®had an'jeasement or right of way for public and railroad purposes, it was not the owner of lands in such a sense on either side of Broadway as would warrant an assessment against it as the owner of land. The council, after the passage of this ordinance, passed other ordinances, on several occasions, regarding and fixing the grade of the street. They sent their engineers upon it to make surveys; they surveyed the road; they levelled it, and coirected those levels in other occasions, and awarded this contract to Conolly. And it seems from the testimony fairly considered, that prior to the time that the railroad company had acquired its rights under these condemnation proceedings, for some purpose or other, and by some person or other, the street, as extended upon these maps and plate, had been cut out. Mr. Marston went there September 20, 1854. At that time the street had been cut out to its full width, and he noticed particularly that the trees on either side were so tall that they met in the center, thereby embowering the road. And that in connection with the testimony of the witnesses — quite a number of them —who resided in the vicinity at that time, some of whom owned property in the vicinity, to the effect that the road had been cut and the trees had been sufficiently cut out that wagons could go along there, and some testimony — ■ quite an amount of it we might say — that wagons went over some portion of this extended Broadway, and were accustomed to pass along there before that time, and the fact that no owner of land interfered in any way, and the action of. the railroad company in 1853 regarding the bridge and regarding the grade, and all of the circumstances surrounding the situation at that time, lead us to conclude that every person concerned — attorneys, the council, officers, owners of land and everybody — supposed that Broadway had been legally acquired by the public as a roadway. And the railroad company, acting upon that supposition, went to this expense of some SI,800, to make that bridge. It is noticeable also that when the railroad company began these condemnation proceedings it described the tract of land that it wante'd to appropriate as a strip off of the northerly side of this subdivision 2. This subdivision 2 was not known in the records other than as it was shown upon these proceedings in partition and the record of that plat, which was afterwards placed among the city records. The railroad company therefore seemed to be cognizant of these partition proceedings and what had been done regarding them when it entered upon its appropriation proceedings. So far as it is made to appear from the testimony, all the proprietors acquiesced in these proceedings dealt with the property and acted exactly as they would if this Broadway had been actually laid out.

It is claimed upon the part of the railroad company, that the intention of the owners to dedicate this street is not sufficiently evinced by this plat. Counsel sought to distinguish this case from one reported in 19 Ohio St., because in the latter case the report of the commissioners in partition had said in so many words that the streets and alleys designated on that plat which they returned were “hereby forever dedicated to public purposes,” or words to that effect; but that in the present case there were no such words of dedication, and nothing to indicate a dedication, except the showing of the projected street upon the map, and the name written or printed upon it. But we are unable to conclude that as far as the proprietors are concerned this makes really any substantial difference in the rules to be applied to the two cases. We are clearly of the opinion that those circumstances evince a willingness and an intention upon the part of the proprietors, so far'as they were concerned, to dedicate such a street, substantially as laid down upon this partition plat. All the acts which had been done theretofore, all the acts which accompanied this and followed it from that time, would seem to be in line with this idea; that they were willing that this piece of land should be thus used for a public street, and that they intended that it should be dedicated to the public for that purpose. We think the railroad company was fairly charged with notice of that fact, and notice and knowledge of these circumstances, and the intent of the proprietors.

Now, when it came to grade its road, all. these matters were very fresh in the memory, and were open, many of them, to the sight; where the public had travelled; bow far Broadway was cut out; how much it had been travelled; and everything, that bore upon the question would seem to have beón then fairly before their eyes, to determine the question whether or not it was then and there a street or otherwise. Acting upon what we must suppose was fairly and fully known to it, it voluntarily built this bridge at this large expense. We are unable to think that it did it for the mere purpose of obtaining the approval of any private persons, or of evincing a general good will towards any person that might possibly want to stray along that way and go over that portion of the track. We are inclined to think that at that time, its officers and agents regarded it as a public street, acquiesced in it, found themselves, as they thought, in a situation where they would be required to expend a large sum of money to build and maintain a bridge.

This may bear not only upon other portions of the case, but upon that portion of the testimony which might be regarded as otherwise somewhat doubtful as to the real situation of the matter. At that time it would seem that the city, so far as it could or would naturally be expected to, had acted upon the supposition that, that was a public street, and so far as it was necessary for the city to accept any dedication that might have been made or acquiesced in by the proprietors of the ground, such acceptance had been shown by all of these acts.

We think it would not be necessary that a street should be placed in prime condition for public travel in order to lay upon a railroad company cutting through it the obligation to maintain a bridge over it. That it was not graded to any great extent at that time is quite probable. Some of the testimony indicates however, that the grading had been begun there; some of the testimony indicating possibly a purpose to begin a grade at that point, and to begin it there first to accomplish some public purpose, perhaps. However that may be, we find that very soon after the appropriation proceedings had been taken by the railroad company there was something of a grade established there. We think the testimony fairly warrants us in concluding that the street had been cut out before that time, and that to all intents and purposes it might have been regarded as a street, in possession of the public authorities at the time of the appropriation.

There is another question that we will allude to.’ In this ■case the arguments addressed to us were for the most part -as to the situation of affairs at the time the appropriation proceedings by the railroad company were instituted and •completed. We are not at all certain that that is the time which actually fixes the duty of the railroad company. It will be noticed that the staiute says, a company, “whenever it is necessary in the construction of ité road to cross a road,” etc. The duty comes to the railroad company when it constructs its road across a road. Now, at that time the inquiry would at least be interesting as to whether, if there was a road at the time of the construction of the railroad, it makes a difference just what the situation was at the time that the railroad company first appropriated it as a right of way. Frequently it happens that a right of way is condemned by a railroad company years and years before a road is actually constructed upon.it, or before any grading is done; and now,if during those intervening years it would be impossible for the public to cut a road for a public way ■over the projected right of way of a railroad company, and •construct a road so that the railroad company would, under ■the law, be obliged to maintain a proper crossing over it, it might then be urged that the time of the beginning of the •appropriation proceedings was the time to be considered. Hut is that true — can it be regarded as a.fair statement of the law upon the question? For myself, it seems that the inquiry is very pertinent; what was the condition at the time of the construction of the railroad itself? If at that time there was, either by dedication, or by condemnation, or any other legal proceedings, in fact and in law, a public street over the railroad, it would seem to me to present a case where the railroad company would be obliged to keep up the bridge or crossing. If it had been condemned after proceedings by the railroad company, it is possible that the fact that it might thereafter, by constructing 4ts line, be obliged thus to construct and maintain a bridge over that point, should be considered in determining the proper rule of damages to be applied in such a case.

Now, in addition to these considerations which lead us to the idea that the law would require the railroad company to construct a bridge at this point, it may be said that that is not just the question presented to this court at this time. It is not a question, of the original construction of a bridge whether, after the railroad has in fact constructed a bridge' at its own expense, maintained it, and acquiesced in the idea that its duty was to maintain it, for forty years; when the public authorities of the city have maintained the street' with reference to that, have allowed, as we may say, the railroad company to maintain a bridge at the crossing, taking its chan.ces as to its liability in case of accident on such bridge; have constructed and improved the street on both sides of this crossing for all these years with reference to this act of the company and its acquiescence in this situation of affairs; then the question whether such a bridge-shall be maintained at that point where it has been maintained by the uninterrupted act of the company for forty years — whether that is the same question that would be presented if we could place ourselves back to 1854 or ’5 in order to determine whether it should originally build a bridge or not, I think is somewhat doubtful. I th’nk other considerations come in, or may come in. to determine the true view to take of such a case. 1 think to the ordinary apprehension it would appear to be the Jaw that where the condition of things has remained and been acquiesced in by all parties for forty years, a very clear and definite and overpowering reason should be given why it should be broken up and changed at the instance of one of the parties involved.

Upon the whole case, and without attempting to go into it further, we are unanimously of the opinion that this railroad company is obliged to construct this bridge, or a sufficient bridge, according to the prayer of the petition; aud that will be the order of the court. The costs will be adjudged against the defendant, the railroad company.


source: Caselaw Access Project

author: NoRRis, J.

license: Public Domain

text:
    (Third Circuit—Allen Co., O., Circuit Court
    Nov. Term, 1898.)
    Before Day, Price and Norris, JJ.
    WALTER ZINN, on behalf of himself and others, v. S. A. BAXTER et al.

      Fraudulent action of bank direetors breaking bank — Right of one who lost his stock thereby to sue them.

    (I)- Z. was the owner of stook of a bank incorporated and organized under the laws of the ..United States. An assessment of the stock was made by order of the comptroller of the currency to make good the impairment of its capital. Z.not being able to meet the assessment, his stock was sold at assessment sale. The capital of the bank was dissipated by its officers and directors and through their negligence. Z.brings action against said officers and directors on behalf of himself and all the stockholders to recover for loss thus occasioned to the bank and its shareholders and creditors, and asks for'judgment for himself and the other shareholders.
    Held: that the cause of action was not in favor of Z., but was in favor of the bank; chat the liability of the defendants was to the bank, and was an asset of the bank; and that the interest of Z. followed the stock so held by him, and when he ceased to lee a stockholder,his right to bring'and maintain the action terminated.

      Error to the Court of Common Pleas of Allen county.
   NoRRis, J.

' The plaintiff in error, Walter Zinn, who was the plaintiff below,sets forth the following facts in his petition, and upon these facts he rests his action against the defendants below, who are the defendants in error here.

He says that on and prior to January 1st, 1893, the First National Bank of Lima, Ohio, was and is organized and incorporated and doing business under the laws of the United States. That on and prior to the 1st day of January, 1893, he was the owner of 100 shares of the capital stock of said bank for which he paid the sum of thirteen thousand dollars ($13,000), and that he continued to be the owner of said stock until some time in 1895, when his shares were sold for the non-payment of the assessment thereon. The capital stock of this bank was. one hundred thousand dollars ($100,000), and he gives the names of the directors and of the officers of said bank, who were duly elected and chosen and served as such during the years 1893 and 1894, and gives the periods between which each served; R. C. Eastman is made a party to the action by reason of having been made executor of the estate of J. M. Coe, deceased, who during a portion of the period named was one of the directors of said bank,

The plaintiff says, that the officers and directors of this bank knowingly permitted the total liabilities to said bank of a corporation known as the Monroe Manufacturing Company, of this city, for money borrowed, and including the liabilities of the individual members of the said Monroe Manufacturing Company, to exceed one-tenth part of the capital stock of said bank actually paid in; and that the comptroller of the currency found the capital impaired on and prior to the 1st of October, 1894, and ordered an assessment of one hundred per cent. (100%) on its stock to be made, and such assessment was made.

That the indebtedness of the Monroe Manufacturing Company, and its members, to said bank, which arose and accumulated from about the 1st of July, 1893, to the 1st of November, 1894, for money borrowed, amounts to a total of $145,150.00, and all without security of any kind. The amount and date of each loan is set out in the petition, and he says that at the respective date of these Joans the manufacturing company and the bank were both insolvent, and that the officers and directors of the bank knew it, or by inquiry which it was their duty to make, could have known of the insolvent condition of these institutions.

The plaintiff alleges the facts in his petition, which warrants the assertion therein made that this indebtedness of the Monroe Manufacturing Company and its members to said bank was contracted from time to time with the express or constructive knowledge and assent of these officers and directors of the bank, and that they knew that its money was thus being loaned without security of any kind to an insolvent concern.

That during all the time that this liability was accumulating the directors knowingly and carelessly suffered the president and cashier to manage the business affairs of the bank without any supervision or investigation, and that the making of these loans to said manufacturing company was the result of their negligence, incompetency and dishonesty.

That the cashier of the bank willfully concealed to the aggregate of over $80,000 worthless drafts and notes of said manufacturing company, upon which the money had been, advanced by the bank and which, when sent for collection,, went to protest and were returned.

That for those years, ’93 and ’94, the directors knowingly and negligently failed to require the cashier to execute his bond as such cashier in accordance with the by-laws of said bank.

That the cashier unlawfully and falsely, and to conceal the liabilities of said bank, falsely marked certain valid and unpaid certificates of deposit as void or paid; and much else of bke import is set out in the petition at length.

The plaintiff says that during this time he lived in Columbus and had no knowledge, either directly or indirectly, of these gross frauds and of this careless management, and of the enormous sums of money thus loaned, until on the 4th of October, 1891, he received notice from the president of the bank that an assessment had been made upon his stock, and that its payment was required.

And he says; that all of this impairment and misapplication of the capital stock of this bank and of its profits, and its consequent insolvency and collapse, and the requirement of its re-habilitation by the 100% assessment upon its capital stock, was occasioned by the negligence of the defendants, the officers and directors of said bank, and their mismanagement and violation of their duty and the law, And that by reason of these omissions and commissions of these defendants, the officers and directors of said bank, he lost his stock; he was not able to pay the assessment, and his stock was sold by order of the comptroller of the currency.

Plaintiff says that since that sale he has served notice at various times on the officers and directors of said bank requiring the payment of the value of his stock which he says was up to the time it was impaired by the acts recited, worth 113,000, or that the directors of said bank cause action to be brought against the defendants, who had thus been delinquent, with a view that this sum be made good; but to all this no attention has been paid and no action has been taken.

The efforts of the plaintiff to thus induce proceedings against the defendants upon the part of said bank and its officers being futile, ho says that he now brings and prosecutes this action on behalf of himself and all other stockholders who desire to become parties thereto.fAnd^he' asks that an account be taken of the loss and damage to said bank and its shareholders and creditors, sustained by reason of this misconduct and mis-management of the defendants, and that he have a judgment for his thirteen thousand dollars against the defendants and each of them, and for a judgment for the other shareholders of the bank in such sums as the court may determine.

Tendering the facts in substance as I have recited them, and making parties to the action each officer and each director of the bank, whose service covered the years 1898 or 1894, or any part of those years, and making the bank itself also a party, the plaintiff seeks the relief prayed for in his petition.

To this petition each of the defendants tiled a demurrer. The grounds of each demurrer are:

First: That plaintiff has not legal capacity to sue.

Second: That several causes of action against several defendants are improperly joined.

Third: That said petition does not state facts sufficient to constitute a cause of action.

The first and third grounds of these respective demurrers to the petition the court below sustained; neither party pleaded further, and the court entered judgment on the demurrer, dismissed the plaintiff’s petition and adjudged the costs against him.

To this ruling and judgment of the court below the plaintiff prosecutes error in this court; and assigns as his reasons for reversal, that the common pleas erred in sustaining the first and third grounds of the defendants’ demurrers,and in dismissing his petition and entering judgment against him.

There is little room for controversy as to what relation- . ship exists between a shareholder in a corporation and a corporation in which he owns the stock, and between the officers and board of directors of the corporation who con-rol its management and have custody of its property and assets,and their dnties to the corporation and its shareholders.

The first purpose of its capital stock and the amount paid in'by its shareholders, is to meet the liabilities of the corporation and to pay its debts, and beyond the face value of its stock, representing the amount paid in for this purpose assessments may be made upon the stock to an extent fixed by the law which creates the corporation, all to meet and discharge its liabilities. And this burden follows the stock wherever it may go, and postpones every other claim upon the assets of the corporation, and is paramount to every right which stock may avouch to one who owns it.

Its paid-up capital is a fund which belongs not to’the shareholders, but to the corporate body which the law has created, the corporate entity which the law has clothed with powers and defined them, and upon which the law has enjoined responsibilities and determined them.

The ownership of stock, says Judge Boynton, in the case of Jones v. Davis, 35 Ohio St., 477, “involves the right to participate in dividends declared from the profits of the business, and upon dissolution of the corporation to a proportionate share of the corporate funds remaining after payment of the debts of the corporation. The right of the shareholder does not enable him to withdraw any portion of the capital stock of the corporation from its control, nor to exercise any authority over it further than to participate to the extent of his stock in the election of a board of managers charged with the conduct of the business for which the corporation was created.”

Between the shareholder and the directors subsists the relation of trustee and cestui que trust. It is the duty of the directors, says Judge Williams in case of Rouse, Trustee, against The Bank, in 46 Ohio St., 502, “to so administer the"trust as to best promote the interests of the shareholders, to pay their appropriate dividends from time to time and upon the dissolution of the corporation to distribute to them their respective shares of the corporate property after the payment of its debts.”

And we think these cases put the matter very plainly. A stockholder in a corporation does not stand to the corporation in the relation of a creditor. One of the objects of the creation of a corporation is to obtain credit; its very creation is of itself a pledge of its capital stock to its creditors. While its creditors may in equity follow the corporate property which has been deflected from the primary object of paying its debts, up to the threshold of a bona fide purchaser for value without notice, and enforce his lien upon it; a stockholder has no equity as an individual, but his rights as such stockholder must be worked out in the first instance through the corporation itself. Its rights are but ncidentally his rights, such rights as are communicated by his relation to the corporation as an owner of its stock. And if this right — which is a mere incident of his stock — has been lost to him by the law; if his stock which carries with it its burdens as well as its benefits, has through legal channels passed out of his hands and his rights are thus by the law lost to him, equity can not restore them, and he becomes a mere stranger to the corporation and its burdens and its benefits. His relation to the corporation which existed only by virtue of his stock, has ceased and determined.

So in this case, the position of counsel that this plaintiff having once been a stockholder in this bank, and having parted with its stock through the agency of the law, still has rights which in equity can and should be saved to him in an action of the character at bar, in untenable.

There can be but little doubt that if this plaintiff, supplemental to the facts set up in his petition, had continued to the present time a stockholder in the defendant corporation, that the status for recovery would appear in this action. But his chiefest claim is that he ceased to be a stock-bolder from the causes assigned in bis pleading. That the necessity for an assessment of the capital stock existed j that this was determined and the assessment was ordered to be made and was made by lawful authority; that he was unable to meet the demand which his stock thus made upon him,and that by legal process, the stock was sold to meet this assessment and his stock was thus lost to him; all bj the fault of the defendants, not in robbing him of his money, but in allowing the bank to be looted and its capital dissipated.

His story, which is admitted by the demurrers tobe true, is to the effect and to no other, that these defendants are indebted to the bank because this condition of. the bank arose through their fault and negligence, and with their knowledge and assent, and that they are liable to the bank,, and incidentally through its directors, who are the trustees of its fund for the benefit of its stockholders, to those who' own the shares of its stock. And that he is not one of those who own any of the shares of its stock.

Now, that is the case made in the petition. It is only for the benefit of the bank that the suit could be maintained, and the bank is the only beneficiary. It is only by the bank or upon the refusal of its officers, and upon it being made to appear that otherwise there would be a failure of justice, then by one or more of its stockholders, for its benefit, that the action can be maintained, for the reason that the cause of action belongs to the bank.

There is no doubt that by this petition the defendants are liable to the bank, and only to the bank. There can be no double liability, and if liable-to the bank, they can not be liable to the plaintiff. This claim against the defendants is an asset of the bank, and as such might well be considered in measuring the value of stock at an assessment sale. In the assets of the bank this plaintiff at the time of the commencement of this action, was in no wise interested, either as a creditor of the corporation, or as an owner of its stock.

John P. Wentzel and P. H. Kumler, Pidenonr & Half-hill, for Plaintiff in Error.

FI. P. Williamson, Ritchie & Ritchie, Wheeler & Brice, for Defendants in Error,

This position appears impregnable, both in reason and precedent; the books are full of cases sustaining it, notably among those furnished in the brief of counsel which are at hand, (18 At. R., 824; 23 At. R., 224; 28 P. R., 788; 21 P. R., 894; 30 P. R., 46; 49 N. W. R., 197; 45 Fed. R., 668; 58 Fed. R., 986, and other cases.)

So that whatever may be his redress, the one here sought by the plaintiff is not the remedy. We think the demurrers were properly sustained, and find no error in the records to the prejudice of the plaintiff in error. The judgment of the common pleas is therefore affirmed at the costs of plaintiff in error, and the case is remanded for execution.


author: SMITH, J.

text:
    (First Circuit—Hamilton Co., O. Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    THE CITY OF CINCINNATI, for the use of John Weisman, v. ANNA M. JOHNSON.

      Resolution to improve sidewalk in Cincinnati — Must be read on three different days—
    Section 1694 Revised Statutes, relating to power conferred upon council, and requiring that an ordinance to improve must be read on three different days,etc., applies to resolutions to improve pending before the Board of Public Works of Cincinnati and its successors, the Board of Administration, and the Board of City Affairs.
    Appeal from the Court of Common Pleas of Hamilton county.
   SMITH, J.

We are of the opinion that the same decree should be entered in this court as was entered in the court of common pleas.

Section 2328, Revised Statutes, by various amendments, gave successively to the board of public works, the board of administration, and by the section as it now stands, to the board of city affairs of this city, in substantially the same language, the same right to provide by ordinance for the construction and repair of all necessary sidewalks within the limits of the corporation that was given by the first part of the section to councils of other municipal corporations, “provided, however” (in the language used), “that in cities of the first grade of the first class all duties and powers herein otherwise imposed on or conferred upon council in relation to sidewalks, or the construction or repair of the same, shall be exercised by the board of administration” (or of city affairs) “of any such city, audit shall not be necessary to have the action or concurrence of council in any of such proceedings.”

This action is to recover an assessment made by the board of administration on the property of the defendant, for a sidewalk which was ordered by said board to be constructed, and which, on the failure of the owner to comply with the order, was constructed by the contractor under the order of the city, and then an assessment levied upon the property to pay the cost thereof, and this assessment transferred to the contractor.

The answer of the defendant, in effect, first, denies that there was any legal or valid assessment against her property for such sidewalk; and, second, it avers that before and up to the time that the plaintiff claims to have constructed said sidewalk, she herself had constructed and maintained said sidewalk in front of her said property, as ordered by the board of administration of said city and its predecessors in office.

The principal contention of the defendant, as we understand, is that the resolution of the board of administration ordering this improvement was not read on three different days by the board, nor were the rules requiring this to be done suspended, but it was passed on one reading; that by the statute of the state the council of any municipal corporation which has authority in the construction of sidewalks, must pursue this course, and therefore that the board of administration, which in this city has the same jurisdiction and power and must perform the same duties, must in the passage of the resolution act in the same way and as it was not-done, that the decision of the supreme court in the case of Campbell v. Cincinnati, 49 Ohio St., 463, is decisive of this case.

We think this claim is well founded. Section 1694, Revised Statutes, certainly made it the duty of all councils having jurisdiction of matters of this kind to pursue this course. It is so mandatory in its requirements that if not complied with,the whole proceedings are void, as is held in the case above referred to. Section 2828, before mentioned, expressly provides that “all duties and powers herein otherwise imposed or conferred upon councils in relation to sidewalks or the construction or repair of the same, shall be exercised by the board of administration,” etc. If it was the duty of council to so act, why was it not the duty of the board also? The same reason would seem to require it in the one case as in the other. It is for the protection of the citizens against hasty and ill-advised legislation.

But it is argued by counsel for the city that the statute , in regard to the board of city affairs points out the mode in which its business is to be transacted, and that there is nothing in the statute which requires the reading of any such resolution or ordinance more than once, or makes any provision for a suspension of the rules. It is true that as to the board of city affairs now in existence, there are tw.o sections, Nos. 2208 and 2209, which make some provision as to the manner in which the duties of such board shall be oerformed. For instance, section 2208 provides that the board shall hold daily meetings, and that three members shall constitute a quorum for the transaction of business; that the ayes and nays shall be called and entered upon a journal upon the passage of every resolution or order of any kind, and that no resolution or order shall be adopted unless three votes are recorded in its favor; while section 2209 provides that the board shall keep a complete record of its proceedings. So far as we can see, those provisions were not in force as to the board of administration, but 'if they were, we think that they only state additional requirements to be followed by the board, and do not in any way change the duty imposed upon it by the other statutes.

H. K. Rodgers, for the City.

Frank M. Coppock, contra.

As before stated the claim is made in the answer that at the time this work was done by the city,defendant had a sidewalk in front of her premises, built by her in compliance with the order of the board of administration or its predecessor. We recall no evidence offered on this point, and place the decision of the case on the ground before stated


author: Noeeis, J.

text:
    (Third Circuit—Hancock Co., O., Circuit Court
    Dec. Term, 1898.)
    Before Day, Price and Norris, JJ.
    THE CITY OF FINDLAY, by M. G. Foster, City Solicitor, v. W. S. PARKER et al., Trustees of the Gas Works of the City of Findlay, et al.

      Gas trustees — Incidental powers in management of gas works—
    (1). When a city has under the law acquired a gas plant, to the end that the inhabitants may be provided with light and fuel, the power to operate the plant and to do the things necessary to accomplish the purpose for which the plant has been _ acquired, and to preserve the property from destruction and impairment to a degree not amounting to rebuilding or extension, is incident to and goes with the power to own as a current necessity.

      Same — Current expenses not within Burns law—
    (2). Operating a gas plant of the character and for the purpose thus intended, is a business of hiring and buying and selling in which the current expenses are intended to be paid out of the income, and in relation to which it is not intended that each item of such current expenses shall be anticipated by certificate of the city clerk under section 2702, in order to make lawful the outlay for its payment.

      Cas Trustees are city officers—
    (ñ). “The trustees of the gas works” of a city are “officers” of the city, as contemplated by sections 6976 and 1645-79, of the Revised Statutes, and are subject to the provisions and penalties of those sections,

      Gas trustee can not deal with Board—
    4.) When a municipality is allowed to embark in the business of buying and selling gas, those who conduct the business and control it, are not permitted by these sections, to directly or indirectly buy for it, and at the same time sell to it either material or labor.

      Same — Employment by board within one year of expiration of term of office—
    (6). Neither may they direct its future policy while in office,and upon retirement within the time inhibited in section 6976, take advantage of opportunities which thus may be created.
    Appeal from the Court of Common Pleas of Hancock county.
   Noeeis, J.

M. G. Foster, as the city solicitor, on behalf of the city of Findlay, Ohio, brings this action by authority-granted in section 1777, of the Revised Statutes. His petition offers for cause of action, that the city of Findlay owns a natural gas plant which supplies the city and inhabitants with natural gas for light and fuel. That the defendants, Parker, Cook, Funk, Baker and Welsh, are the trustees of the gas works of the city of Findlay, and constituting such board of trustees are in management and control of said gas plant. The salary of these trustees is fixed by the city council of the city of Findlay at $200 per year each, which is the only compensation by law allowed them. That the council by resolution authorized said trustees to appoint and employ one of their number to go over the territory embraced in the gas leases of said city to look after said territory and the leases and rental payable under them, and to renew expiring leases and take new ones, and to perform other services about the operation of said gas plant. That the gas trustees acted upon this resolution of the council and fixed the compensation for the services thus to be performed at $2.00 per day. And on the 12th of April, 1898,made a contract with the defendant, J. H. Cook, one of said trustees, and appointed him to do and perform these services and receive this compensation, and all this in addition to his duties and salary as such trustee, And that, to carry out and make complete this appointment and contract, said trustees intend to and will apply the funds of said city held bj them as such trustees in payment and allowance of this salary and compensation unless restrained by the injunction of this court. And that the appointment of said Cook to do these things and the contract to pay him for the services in such employment 'is a misapplication of the funds of said city, and is in excess of and is an abuse of their powers as such trustees,and is all without legal authority. As another, and a further complaint, plaintiff says that the trustees, without authority from the council and against the law, passed a resolution which purports to create the office of general manager of the gas plant, and determines and fixes the salary of such general manager at $1,500 per year, and under this self-created authority made the defendant, W. H. Gross, such general manager, ‘and gave to him the direction and supervision and control of the operation of said plant, and made in this behalf with Gross a contract to that effect, agreeing thereby to pay him this salary, and that said contract is now being carried out by the trustees,and that the funds of said city now in the hands of said trustees are being and will be diverted to pay this salary. That this is all being done without legal authority, and is, and will be, a misapplication of the funds of said city, to prevent which it is necessary that this court interpose its injunction.

The fact which colors this act of the trustees with violation of corporate powers and breach of the law,is that Gross at the time of said contract and appointment had but just retired from said board of trustees as a member thereof, and that such employment and contract will cover the period of one year next immediately after he became such retiring member. That both of these contracts contemplated the misapplication of the city funds, to Cook as a serving trustee, and to Gross as an ex-trustee within one year after his term of service had expired. That no certificate of the clerk of said city was made as required by law, that the money to meet the expense incurred by these contracts, or either of them, was in the city treasury to the credit of any fund and nit unappropriated, out of which payment could be drawn.

And plaintiff seeks to enjoin defendants from performing these respective contracts on their part or on the part of either of them, and from applying the funds of said city as contemplated by the terms of the contracts to the payment of these agents or either of them.

The defendants, the trustees of the gas works,filed a separate answer which, in substance, presents the necessity of the service contemplated by these contracts and the entire competency and integrity of the defendants, Oook and Gross, who are thus employed, and makes it appear clearly that the performance of the services by men who are experienced in that regard is for the safety of the life and property of the citizens and the preservation of the gas plant itself, and asserts that all these acts of the council and the trustees are evidence of due care and judicious management, and are cognizant with the authority of said trustees and the laws and ordinances under which they act.'

The answer denies that execution of these contracts will be misapplication of the funds of the city, and admits that Cook is a member of the board of trustees, and that Gross did but only just retire from the board when he was thus appointed, and that his service under such appointment will cover the year next immediately after his retirement from the board of trustees.

The defendants, Cook and Gross, file separate answers adopting the allegations and averments of the answer of the trustees. The case comes into this court on appeal, and the evidence reveals the facts to be as I have recited them in the statement of the case, that is to say, stripped of verbiage.

The city of Findlay owns a natural gas plant which was and is operated for the purpose legitimate to that branch of municipal economy, all in control of the trustees of the gas works of said city. This board of trustees is constituted by legal authority and governed by the laws which prescribe and limit its duties and powers.

The condition existed and exists which made necessary a man to look after the interests of the city in its gas territory and leases, and to engage in other kindred employment. The trustees by authority of the city council chose one of their number to perform these services, together with his duties as such trustee, and to receive the emoluments of the position in addition to his salary as trustee. He is competent in all respects, and his pay is not exorbitant for the services required. The exigency is present that makes it necessary, in order to preserve the plant and to make more safe the property and lives of the people of the city, that a general manager of the plant with all that the word implies, be selected and clothed with power to perform the duties demanded by that position, and for this office, the trustees, by authority in them considered to be vested, selected a man and clothed him with power to act, and fixed his salary and term of service.

The man selected has but just retired from the board of gas trustees to which he had been legally chosen; he had retired by reason of the expiration of'his term of office, and the period of his employment as general manager covered the year immediately next after the end of his service as a member of the trustees of the gas works of said city. He is exceedingly competent to discharge the duties of his new position, and the salary determined by his contract of employment is not exorbitant.

When these two contracts were made, no certificate had been filed by the city clerk that money requisite to meet the expense to be incurred under either of the contracts stood unappropriated to the credit of the proper fund in the treasury of said city.

ft is claimed by the plaintiff that for thiB reason the trustees cf the gas works had no authority to make the contract; and further, that as defendant Cook, was, and still is, a full fledged and acting member of said board of trustees, he was, and is ineligible to the employment required by the contract; and that Gross, being so recently a trustee, is not a person whom the board had authority to select as general manager; and that the action of the board of trustees is hence illegal in both instances, and without authority. These assertions of the plaintiff are controverted by the defendants, who claim that resting upon these facts, the acts of the board are in all respects in conformity to law, and within the scope of its authority. Ho that the only question is, did the board have the legal power to hire and pay Cook as he is hired and is paid, and to appoint and hire and pay Gross as general manager; the first being a member of the board, and the second just having retired at the end of his term.

Section 6976, of the Revised Statutes,.provides:

“That an officer of any municipal corporation who is interested directly or indirectly in the profits of any contract, job, work or Bervice for the corporation, or acts as commissioner, architect, superintendent or engineer in any work undertaken or prosecuted by the corporation during the term for which he was elected or appointed, or for one year thereafter, shall be fined not more than oue thousand dollars, nor less than five hundred dollars, or imprisoned not more than six months nor less than thirty days, or both,and shall forfeit his office.”

Section 1545-97, provides:

“That no contract for work xo he done for or material th'be supplied to the city or any department thereof shall be made with any councilman, officer or employe of the city, or with any firm, partnership, corporation or association of which such councilman, officer or employe is a member or stockholder, or by which he is employed in any capacity; and if, during the term for which he shall have been elected or appointed, he knowingly acquires an interest in any such contract, he shall forfeit his office. ”

There can be no doubt of the authority of the trustees of a gas works to employ such service as is necessary to carry on the business of the plant, and to preserve it and make its operation safe to life and property; all this lies within the radius of the use and purpose of the plant, and appears to be in. contemplation of the law which empowers its construction, as incident to its establishment and control. When the law authorized the purchase and construction by the city of the gas plant to the end that the inhabitants might be provided with light and fuel, the things necessary to accomplish in a safe and reasonable manner, the object for which the plant had been acquired, and to preserve the property so constructed from destruction and impairment to a degree not amounting to an extension or rebuilding in whole or in part, are incidental to and go with, and continue with the power to construct and acquire and own as current necessity. The expenses thus incurred are but the current expenses of operating, and to require certificates of the clerk as a condition to authorize these current expenses, and to anticipate each item thereof, would render it almost impossible to operate an institution of the character at bar. So we do not think that the certificate of the clerk is necessary to make lawful an outlay of the kind arising under defendants’ employment.

' Now, while this is true, the legislature had in view the necessity of hedging in and making safe from probable and apparent dangers in every way possible, the treasury of a municipality. In the problem of municipal government which always confronts the law-making power, a looted treasury is in no wise in the'back ground, and to prevent this the legislature has not and does not hesitate to resort to any devise, coupling an infringement of the laws in that regard with fine and imprisonment and forfeiture of office, and hence the enactment of the sections from which I have just quoted. When a municipality is allowed to embark in a business enterprise such as operating a plant to furnish its inhabitants with light and fuel, and to carry on the business of buying and selling gas where of necessity the conduct and management and control of the business is in the hands of those who are not personally interested in the assets of the business, who take no part in its savings, who pay no part of its liabilities; who are strangers to its profits, and not directly affected by its expense, the necessity of-every safeguard is most apparent. Those who conduct the business and control it, may not directly or indirectly both buy for it and sell to it either material or labor, and this however honest and competent may be the one who thus serves it. And an officer of a municipal corporation who has retired from the office to which he has been selected or appointed, may not be interested either directly or indirectly in any work or service for said Corporation until the expiration of one year after his retirement from office. He may not direct or control its future policies while in office, and then upon retirement stand ready to acquire as an individual the harvest which he has hoarded as a public officer,and this however honest he may be, and however competent.

G. M. Foster, George H. Phelps, Pendleton & Whitely, for Plaintiff.

Boss & Kinder, and W. F, Duncan, for Defendants.

These trustees of the gas works are public officers; they are elected by the people, they qualify, they take the oath of office and give an official bond, and are entitled to the emoluments of the office, and without any of this, the nature of their duties make them officers of the corporation, and make more applicable to them than to any other officers of the municipality, these sections of the statute which look to the honest administration of every department of municipal government. And whatever authority the trustees of the gas works had to employ men to perform the services required of these defendants by the contracts here sought to be enjoined, these defendants, the trustees were not allowed to employ. The finding of the court is for the plaintiff, the city of Findlay, and against the defendants. An injunction is granted as prayed for in the petition; the costs are adjudged against the defendants, and the case is remanded for execution.