author: Bentley, J.

text:
    (Sixth Circuit—Ottawa Co., O., Circuit Court
    June Term, 1892.)
    Before Scribner, Haynes and Bentley, JJ.
    Village of Port Clinton v. The Cleveland Stone Co. et al.
    1. Where a municipal council instructs the treasurer to advance to a contractor who is unable to go on with his contract for lack of means, a sufficient sum to pay railroad freight on material to be used in the contract, the amount to be deducted from the next payment to be made to the contractor on an estimate for work done, to which the contractor consents, the transaction being entirely bona fide, the municipality is entitled to a credit for the amount so advanced, as against mechanic’s liens for work done and material furnished on such contract, although there was no resolution or ordinance passed by such council at the time providing for such advance payment to the contractor.
    2. Where a contract for a street improvement provided that payments should be made to the contractor as the work progressed on estimates of the city engineer, eighty-five per cent, of the proportionate part of the contract price to be paid such contractor on such estimates, and fifteen per cent, to be paid only on completion of the entire contract, and the contractor having abandoned the work, his sureties have completed the contract to save themselves, the work being completed at a loss to such sureties, such sureties are entitled to the said fifteen per cent, remaining unpaid, as against holders of mechanic’? liens for work done on such part of the contract provisionally estimated to the contractor.
    Appeal from the Court of Common Pleas of Otttawa County.
   Bentley, J.

The petition in this case was filed September 16, 1891, in the court of common pleas. It sets-forth generally, that in the summer of 1890, by due and proper proceedings, the plaintifflet a contract to one Philip Sullivan to improve Second street, in this village, between two certain streets mentioned in the petition ; that Sullivan gave bond for the performance of this work that he had contracted to do ; entered upon the performance of the work; did some portion of it, and finally in October of that year, 1890, abandoned the work. That certain of the sureties upon his bond, after the abandonment of the contract by Mr. Sullivan, gave notice that they would complete the contract as provided in the original specifications, as sureties upon Sullivan’s bond. That they thereupon, and with the assent of the village, completed the work, which was accepted by the village.

The petition states that no estimate had been given to Sullivan up to the time that he had abandoned the work. About the 31st day of October, 1890, plaintiff caused an estimate to be made of everything done in pursuance of the contract up to the time of abandonment by Sullivan, which estimate amounted to $2,414.58.

The petition further says that on completion of the contract by the sureties, the village paid the sureties all the contract price except $2,414.58, and it makes defendants to the petition the various parties who claim to have liens upon the fund in question, ■ and Mr. Sullivan himself. It asks that the court adjudge how this fund shall be distributed; thatthe'validity and priority of all liens and claims be determined; that the plaintiff may be directed in the payment of the same out of the funds; that the defendant Sullivan and the other defendants herein may be estopped from asserting any further liens or claims against plaintiff arising under said contract; and for all proper relief.

The petition, however, after alleging that the amount of $2,414.58 was the balance of the original contract price after the payment to the sureties, sets up that the village há's in fact paid out a portion of that amount, so that the whole sum of $2,414.58 is not in its hands.

The allegation'is this: “ Plaintiff says that soon after said Sullivan entered upon the performance of his said contract, being unable to go on with said work, plaintiff, to enable him to do so, in consideration that he would not abandon said work, in good faith, made a payment to said Sullivan of $200.00 on said contract, without any estimate having been furnished therefor as required by the terms of said contract; also that the plaintiff, with the assent of said Sullivan, he being still unable to complete said work for want of means, bound itself to the defendant, Geo. E. St. John to the amount of $496.27, in consideration that if he would contribute labor and materials for the completion of said work, plaintiff would pay him for moneys advanced on that account, without any estimate having been made to said Sullivan as provided by the terms of said contract.”

• There is scarcely any contest regarding the payment of this $200.00. While it was made in advance of the time provided for in the contract, yet it seems to have been made in good faith, and for the purpose named in the petition; and under the holding of the court in Schneidhorst v. Luecking, 26 Ohio St. 47, it seems that there could be no question about the payment of that item — that the village had a right to make the payment, and the sum $2,414.58 should be diminished by $200.00.

There is, however, a spirited contest about deducting the $496.27, it being claimed that the village had no power or right to make the contract set forth in the petition, and even if it had, it would have no right to deduct this sum from the above amount to the detriment of the creditors of Sullivan and the sureties. It is contended that there was no resolution or ordinance by the council regarding the payment of this sum; that, in fact, no binding agreement was made with the council regarding it; that at best it was 'a dealing of the members of the council with St. John, and was not binding on the village, whatever effect it would have on the members of the council.

It will be noticed in the case I have mentioned in the 26 Ohio St., that this was done and approved by the Supreme Court: “ A contractor after entering upon the performance of his contract, being unable for want of means to go on with the work, the owner, to enable him to do so, in consideration that he wmuld not abandon the contract, in good faith made payments to the contractor faster than he was required to do by the original contract, for which he was to be allowed interest; and also, with the assent of the contractor, bound himself to other parties, in consideration that if they would contribute labor or materials towards the completion of the work, he would pay them therefor. Held, that the money thus paid, and the liabilities thus assumed, were not payments in advance of the sums due, within the section of the mechanic’s lien law.” The defendants claim that there was no obligation entered into by the council of the village, or by the village, in the form prescribed by the statute for paying out the money of the treasury. It is contended that the council had no power to make such agreement.

The proof upon that subject shows that upon a regular meeting of the council, with a majority, if not all the members of the council present, it was made to appear by statements there that Sullivan had certain stone shipped to him here for the purpose of this improvement; that the railroad company required him to pay the freight; that he would have to abandon the contract unless something was done to help him pay the demands of the railroad company. Thereupon, St. John being present, and being treasurer of the corporation, a suggestion was made that he advance the money for this purpose, it being said that he had the money in his hands, and that, as the contractor consented that out of the first estimate made he should be repaid, St. John would be safe, and it would be proper for him to pay this money in advance to pay the freight. St. John declined to do this unless he was sure of getting his njoney. He was assured there by the members of the council that he would be safe in so doing. The proof also shows that St. John, relying upon the statements made and the situation there shown, in order that the contract might not be abandoned and the work might proceed, advanced, or paid through the contractor himself, all the freight due to the railroad company to whom the freight was coming, amounting to $496.27.

It is said that the proof of the application of these payments was not very clear. But whatever proof there vas is not contradicted. The village, after all the time elapsed, sets up that it obligated itself for freight to the amount of $496.26, and we think this $496.27 was thus paid.

The question is whether it should be deducted from this sum claimed to be due. Sullivan makes no claim that this money is coming to him. It seems to us clearly, under the authority in the 26 Ohio St. and perhaps one or two other cases, that if the village had made this $496.27 payment, the village would have been entitled to it as against the parties to this action. Now, we think, if Sullivan, whose rights to a certain extent are being enforced here, had himself sued the village for that amount claimed, had he completed the contract, it would have been very clear that he could not have recovered again the $496.27 thus paid in the manner I have pointed out, for his relief. He would not have been allowed to recover it over again, and we think in equity this matter should be determined as it would have been in such a ease. It has been paid by the village, and although irregularly, the village is not contesting it. There is no suit against the village to recover it, and it is making no contest, but it acquiesces in the payment. We think that the persons standing in the shoes of Sullivan are not in a position to make this claim which Sullivan would not be allowed to make had he brought suit to recover.

We think that this $496.27 should be regarded as paid, and the fund diminished that amount. That would leave the difference between $2414.58, and the $200, and the $496.27, as the fund to be distributed. That that fund should be increased in this case by interest upon it since the filing of the petition; the village should be charged interest at the rate of six per cent, on -this amount. It has retained the money in its own possession, from the creditors, instead of bringing the money into court. In a case in the 3 C. C. R., The P. Hayden Saddlery Hardware Co. v. Slade & Kelton et al., on page 71 the court says : “It is claimed on behalf of the owner, John Zelter, that the court erred in charging him with interest upon the amountdue the contractor from thetime it became due. This upon the theory that no order was made requiring him to pay thesameinto court, and that, as he by his answer expressed his willingness so to do, he ought not to be charged with interest. We do not think this claim is well founded. He was bound to pay it as soon as it fell due, and if doubtful as to the rights of the ¡parties to the same, he ought to have brought the money into court, and left it there for distribution. To relieve himself he should have done this; but having chosen to hold the funds, he cannot complain if the court charge him for the use thereof.”

Under the authority of that case, and because the plaintiff has not brought the funds into court to relieve it, we think that interest should be added to the fund, and when that is added, that constitutes the real fund to be distributed here.

Before passing to the main question in the case, there are some preliminary matters which I should dispose of regarding the validity of certain liens upon and other claims to this fund. It is agreed that all the parties whose claims were allowed by the court below, had taken such measures as to be entitled to a portion of this fund under section 3193, et seq., except those parties I shall mention. It is admitted that these amounts allowed by the court below are correct; also that the amounts claimed by all the other parties and which were not allowed by the court below are correct.

As to A. Couchie & Co. it was claimed that these parties had taken no steps to perfect a lien upon this fund for $14.70, the amount of their claim; the same is alleged regarding the claim of Charles Thompson, for $7.54. By examining the pleadings, we find this to be the state of facts : They allege that they have taken all the proper steps in the proper timé, and there is no pleading contradicting the allegations of their cross-petitions.

The cross-petition in the first case sets up : First, that there is due to them on a due-bill set out by copy $14,70. Second, that in pursuance of a verbal contract entered into between the defendant Philip Sullivan and one Jens Jensen, the said Jensen performed 9 8-10 days labor at $1.50 per day in and towards the construction of Second street, between Fulton and Madison streets, in this village, provided for in a written contract between said village and Philip Sullivan, dated July 30, 1890; that the labor was performed before the filing of said due-bill with the village clerk; that said Jensen, subsequent to the filing of said itimized statement and due-bill, duly assigned and transferred said account to these defendants, and that they are the owners thereof, and that no payments have been made thereon.

The claim of Charles Thompson seems to have been drawn up by the same attorney; the same allegations appear, and read as follows : “ Now comes the defendant Charles Thompson, and for answer says that there is due him from the defendant Philip Sullivan, on a due-bill for work and labor performed by him to and for said Sullivan, a copy of which is hereto attached marked Exhibit “A” and made a part hereof, the sum of $7.54. Second: This defendant further says that in pursuance of a verbal contract entered into between the defendant Philip Sullivan and himself, he performed labor in and towards the construction of the improvement of Second street between Fulton and Madison streets in said village, provided for in a written contract between said village and said Sullivan, dated July 30, 1890; that said labor was performed before the filing of said dne bill with the village clerk; and that on the 15th day of October, 1890, he filed with the village clerk of said village a sworn itemized statement of the amount and value of the labor performed by him ;” that no payments have been made; prays judgment for $7.54. Upon the face of these pleadings we think that these claims should be allowed.

In the case of Fred Grosh, more than six months had elapsed before a lien was filed ; that $30.00 should be excluded, and not allowed for that reason.

There is a claim of John Miner filed here, a part of which is contested, and a part of which is not contested. $32.20 is contested. The whole claim is $93.00 and something. I might say that this claim stands in the same way as the others. The answer and cross-petition sets up two due bills given to this claimant by Sullivan; and he attaches copies to the cross-petition, marked Exhibits “A” and “B.” The first-one is for this $32.20, and is dated September 30, 1890; the next is dated Oct. 31,1890. After setting out these due bills, the cross-petition says that “this defendant further says, that in pursuance of a verbal contract, he performed twenty-seven days work with his team of horses, in and towards the construction of Second street and the improvement of the same, in the village of Port Clinton, between Fulton and Madison streets, provided for in a written contract between said village and said Philip Sullivan, dated July 30, 1890; that he performed said labor during the months of August,' September and October, 1890; that on the 11th day of December, 1890, and within sixty days from the performance of said labor, this defendant filed with the council of said village of Port Clinton, and in the office of the clerk of said village, a sworn and itemized statement of the amount and value of such labor so performed, etc., containing a description of said promissory notes or due bills which were given him by Sullivan on account for said labor, etc.” It appears by this cross-petition that this man, in August, worked along and received an estimate from Sullivan in September ; then the next month he got a due bill. If this statement had not been made that within sixty days after he filed his account, etc.,” there would probably have been little question. We think that the whole claim for twenty-seven days work, being a contract complete, isto be allowed, not because of his due bill in September, but because the giving of the due bill did not deprive him of the lien he took after that. We allow the claim to the full amount.

There are claims filed by Heiberg, Plopfinger and St. John. Their cross-petitions simply say that certain persons worked on Second street, andassigned their claims to them, and they took them to the council; that the council have retained the accounts since then, but have not paid them. These claims are not liens. It appears that no verified statements were filed as required by law. We are unable to allow any of these claims to come in with the other liens on this fund, and as the liens will exhaust the fund, these claims will therefore be rejected.

The more serious question as to the division of this fund, now to be distributed, presents itself. It is agreed upon by the parties that these lienholders and material-men and laborers, whose claims have been allowed as indicated, are equal as regards pro rating any funds that are on hand. That is, their claims will be paid pro rata out of any money distributed to them. They together make ■ one set of claimants, and the sureties who took the work in the latter part of October, and completed it, make the other. So that the question is, how this fund is to be divided between these two sets of claimants, — the lienholders and the sureties. We had a case similar to this at Sandusky, and during the hearing of the case, we announced to counsel the conclusion we had arrived at in that case. That case and this seem to be alike, except in that case the sureties were more fortunate in being able to complete the contract within the original contract price; there was a little profit, and the sureties were claiming to be allowed the overplus they had created. What was done? They were allowed what they actually expended, but that did not exceed the' amount that the contractor had thus earned.

In this instance, unfortunately, the sureties have completed the contract at a loss, unless they shall be allowed to come in pro rata with these other claims upon this other part of the fund. We have gone over the whole ground with this question in our minds, whether by applying any equitable principles we can give the sureties the full amount of their expenditures out of the general balance. That subject is spoken of in some cases. In the case of Bullock v. Horn, 44 Ohio St. 424, the court says : “ The statute is highly remedial in its character, and should receive such liberal construction as will carry out the purpose of the legislature in its enactment. The labor of the workman and the material of the material-man having contributed to the erection of the structure; having, indeed, created in part the very property to which the lien is sought to be attached, the purpose of the law is to give to such parties the rights, where the contractor refuses to pay, to be paid for their labor and material out of the fund which has been earned under the contract, and out of the structure and the land on which it stands, such claim, as to amount, not to be in excess of the claim of the contractor as measured alone by the contract and his performance of it. In giving construction to this statute, by a fair inference it may be assumed that the rights of the workman and material man, as against the owner, are the basis of the latter’s contract with the contractor, and while they are subordinate to the contract, and are worked out through it, those parties have a right to rest in security upon it and the means provided by law to secure its application on their demands. In the absence of fraud they are presumed to have notice of the terms of the original contract. Hence, if the original contract showed that payment had been made in advance to the contractor, or if it contemplated the allowance, by the contractor, of aset-off then held or to be acquired by the owner as payment, such provisions would bind the workmen and material-men, as they would be held to have accepted employment of the contractor with an implied assent to such terms. But, where the contract was silent as to'advance payments, and as to claims of the owner against the contractor, workmen and material-men could not be held to have accepted employment with a view to such contingencies.” And in Dunn v. Rankin, 28 Ohio St., on page 142, the court says: If there be distinct jobs of the kinds enumerated in the statute, under separate contracts, though under contracts between the same owner and contractor, the liens of the sub-contractors are respectively confined to the amount due on the contract each one aided the contractor to perform ; the same as it would be if the owner had contracted each job to a different contractor; for the policy of the statute is not to give a general lien to the subcontractor, but to give him a right to the fund to which his own labor or materials have contributed.” It will be seen here that this idea has been enforced by the Supreme Court; that the creditor has recourse to the building or structure he has helped to build, and is to be paid out of that money which he has helped the principal contractor to earn. So that in distributing this fund along these lines, this fund must be regarded as in two parts; a part which was earned before Sullivan abandoned the contract, and that portion which arose on the completion of the contract by the sureties. Now', we have estimates which show how this division should be made. Sullivan never had an estimate, although the contract show's that he was to have one twice a month; but after he abandoned the work, and before the sureties took hold of it, the village caused an estimate to be made of all done under Sullivan, and it was found to be $2,414.58; that was the estimate of the engineer, the balance was done by the sureties. The bids for the contract give separate prices for certain parts of the work. I call attention to this portion of the contract regarding the ownership of the earth : The street and intersections to be graded to such grades, sub-grades and cross sections as shown by the plans, and as the civil engineer in charge shall direct; the sub-grade to conform to the proper crown of the street when completed; measurement of all earth work to be made in excavations ; the price for excavation to include all'filiing which may be necessary in either roadway, sidewalks or intersections; the balance of the earth required to be moved to belong to and must be-disposed of by the contractor.”

The fifth subdivision of the contract reads as follows : “Said first party agrees, upon presentation of a certificate of the Civil Engineer showing the completion of said work or a part thereof in strict accordance with this contract, to pay the sum shown by such certificate to be due for work done and materials furnished therein under this contract; provided, that until the completion and final acceptance of the whole of said work by the council, the second party is, in no event, to receive more than 85 per cent, of the amount due on this contract; said first party agrees that said engineer shall make such estimates and furnish certificates therefor on the 15th and 30th days of each month hereafter, and until the completion of said work ; that the final acceptance of said work by, the council shall not be delayed more than ten days after the completion of the same.”

Although this estimate of October, 1890, was not made for Sullivan before he abandoned the work, it was made officially, and, we think, in place of one of these partial estimates, as a partial estimate for him just before he abandoned the work. These partial estimates are not considered as finalities, and the Engineer, in making them, while he is supposed to be accurate, is a little liberal in making these estimates, because they can bo made right on the final estimates.

Now, although this estimate of the 24th of October, 1890, is practically uncontested, yet we must view it in the light of the whole proof in the case. We think that Sullivan had not earned the amount of |2,414.58 when he quit the work ; that it is to be regarded as a partial estimate, to be made more correct in the final estimate. It is noticed that only 85 per cent, is payable to him. He himself could have sued the village for it and received 85 per cent.; 15 per cent, was not due and payable to him. We are inclined to view the matter in this way : that this 15 per cent, which was earned after this estimate, is to be delivered to the sureties; that the sureties in completing the contract, did not do the work measured by the value after subtracting $2,414.58 from the contract price, but they put in an additional value that was still left provided for by the contract. Sullivan never became entitled to this 15 per cent.; we think he never earned it; that unless the sureties or somebody had completed the contract, Sullivan never would have been entitled to it. The amount due to these lienholders must be measured by the amountto become due Sullivan. We think that this 15 per cent should be held to have been earned by the sureties who completed the contract; that their work alone made it payable on this contract, and the facts in this case seem to require this as equity ; that each man should be paidoutofthe work that he has helped to perform; that the sureties did not help earn any part of this 85 per cent, and that the other claimants did. We are unable to see how the sureties can be entitled to any part of this 85 per cent., or how the claimants under Sullivan can have any claim on the 15 per cent, of this $2,414.58.

Now, as we view this matter, out of this $2,414.58, there should be taken $200.00, $496.27, and 15 per cent, of that amount, being $362.18, for the sureties, making in all $1,058.45 ; that after deducting that amount from $2,-414.58, leaving $1,356.13, this latter sum should be set apart as the fund to the lienholders, and to this is to be added interest — its portion of the interest, and to this $1,356.13 its portion of interest should be allowed. The $496.27 was a matter liable to create a question, and the way in which that matter was handled, invited a contest in regard to it. How much of the litigation was made by it we cannot know perhaps. Half of the costs will be assessed against the village, the other half to be paid out of the gross amount before distribution ; and distribution is to be made along the lines I have indicated.

T. J. Marshall, for the sureties.

Scott Stoll, for the village.

John Duff, H. H. Magruder, and others, for the lienholders.


source: Caselaw Access Project

author: Jenner, J.,

license: Public Domain

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Sept. Term, 1894.)
    Baldwin. Caldwell and Jenniob, JJ. (Judge Jenneb, of the 5th Circuit, taking the place of Judge Hale.)
    George Weiser v. The Broadway & Newburg Street Railway Company.
    1. The rule of law in Ohio is that a traveler crossing a steam or street railroad, must use his senses, look and listen for approaching trains But it is not the law of Ohio, as in Pennsylvania, that it is always negligence per se for.a traveler to fail to look and listen.
    2. The degree of care required is always ordinary care, under the circumstances of each particular case. The degree of care may be increased in different cases, owing to the character of the surrounding circumstances.
    3. Street ear companies running through the streets of a city have not superior but only equal rights with citizens whether pn foot or in vehicles. Both are required to use due care.
    Error to the Court of Common Pleas of Cuyahoga County.
   Jenner, J.,

(orally).

The case of Weiser against, The Broadway Street Railroad Company was brought in the court below to recover for personal injuries, alleged to have been sustained by the plaintiff through the negligence of tlie Railroad Company.

He aVers in substance, in his amended petition, that upon the 7th day of August, 1891, the Railroad Company was engaged in operating its cars by electricity. On that day, traveling along one of the streets of this city, attempting to cross the track, and using due care, that the Railroad Company, by its agents, operating its car, ran against his wagon, and thereby he was injured and damaged to the extent set forth in his amended petition.

The Railroad Company, by its answer, first denies generally the averments in the amended petition. Second, they aver contributory negligence on the part of the plaintiff below.

The questions that .arise are, as to the exclusion of certain testimony appearing in the record, and on the charge of the court to the jury.

The questions that arose on the exclusion of evidence came up in this form : The defendant below read the deposition of a certain witness who had been with the plaintiff, or near to him, at the time of the alleged injury. In reading the deposition in chief, these questions were omitted : “What, if anything, did you hear Mr. Weiser say prior to the accident, about his health ?” “A. I did not hear him say anything about his health.” “ Q. Hid you hear him complain any prior to the accident?” — (There was an exception there). “A. I heard him complain a little.” “ Q. What did he say?” “A. He said his head was hurt by the car.” Those questions were omitted in reading the deposition in chief. The plaintiff below objected to the omission of those questions, and then offered to read them on his own behalf, in chief, and the court ruled that the questions were incompetent.

We do not know of any rule of evidence that would justify these questions being read in evidence. The only material question of the three is the last: “What did he say?” “He said his head was hurt by the car.” That is, after this injury was received he details how it occurred.

The witness cannot detail the transaction — how the accident happened, and by so doing have it related to the jury as affirmative testimony. That does not strengthen the case. The testimony as to how the accident occurred must be submitted to the jury by witnesses who were present, who saw it.

The main question arises on the charge of the court. It is a long charge, and all I need state is the conclusions we have arrived at — it is not necessary to read at any length.

The legal questions involved have been so often adjudicated by the Supreme Court of our own state, as to the degreeofcare that must be exercised, and as to where the burden of proof rests — the books are full of it in our own state ; it isn’t necessary to go outside. We are cited to the Elliott case, in which it is laid down as a rule that where a traveler on the highway, passing over a railroad crossing, where he has an opportunity of seeing whether a train is approaching, if it is in daylight, and he could see by looking, and he fails to do that, even though the railroad company neglected the usual statutory signal by bell or whistle, that does not excuse the traveler from looking, that is, using his senses; that is the idea that runs through this and other decisions of our Supreme Court; the traveler is expected to use his senses of hearing and sight, in order to protect himself from accident. Of course, a duty devolves upon the railroad company. The employes of the railroad company must use ordinary care.

There are three exceptions to the charge; I might turn to those.

“Whereupon plaintiff excepted to that portion of the charge of the court relating to the question of negligence on the part of defendant, and what constitutes the same; also the instructions relating to contributory negligence; also instructions relating to the burden of proof.”

I may say as to the burden of proof, the trial judge put the rule in the ordinary way, that the plaintiff must, by a preponderance of the evidence, establish his case. He must do that by a preponderance of proof; the court used that language substantially.

Now, the next question. The court charges substantially that if the testimony of the plaintiff disclosed negligence on his part contributing to the injury, then that would defeat his recovery unless he, by his own testimony, relieved himself of the burden so cast upon him. It is said that was erroneous. I might call attention to one authority on that question, the 35 Ohio St. 627, and I will read a line or two. “If the plaintiff's own testimony in support of his cause of action raises a presumption of such contributory negligence, the burden rests upon him to remove that presumption.” Now, the court, not in that language, but in substance, charged that proposition, and he had this authority for it. That is the rule.

Next, as to the degree of care. The court proceeded at some length to show what care Weiser should use, and what care the railroad company should use. The manner in which the court put that is objected to, and exception noted It is said this was a very dangerous business, and that therefore the railroad should have exercised a very high degree of care. That is true, and yet after all, the degree of care was only ordinary care, under the circumstances of each particular case. The degree of care may be increased in different cases owing to the character of the surrounding circumstances. But it is always ordinary care, how men ordinarily would act under the circumstances of that particular ease. The court substantially charged the rule as laid down in the leading case, 8th Ohio St. 582, the Terry ease — it is really a leading case on that subject, often cited by trial judges. “It is obvious from this definition that the ordinary care required by the rule has not only an absolute, but a relative significance. It is to be such care as prudent persons are accustomed to exercise under the peculiar circumstances of each case. If called into exercise under circumstances of peculiar peril, a greater amount of care is required than where the circumstances are less perilous; because prudent and careful persons, having in view the object to be attained, and the just rights of others, are in such cases accustomed to exercise more care than in cases less perilous. The amount of care is indeed increased, but the standard is still the same.” Now, that is the rule, and it is the rule as charged by the trial judge.

There is one objection to this charge that we don’t understand the judge quite as counsel who argued the case seemed to understand him. We understood counsel to say that the court read from the Pennsylvania authority, and stated that it was an-unvarying rule that the traveler in attempting to cross a highway, or a street railway crossing, or a railroad track, must alway stop, look and listen. If the court had so charged, wo think it would have been error. We do not find it in the charge that way. He says it-is his duty to use his senses, to look and listen. Our books are full of that doctrine, but we do not understand it to be a rule of law that it is always negligence per se if the ti’aveler fails to stop and look and listen.

There is one proposition in the charge that we cannot endorse, and yet counsel have not excepted to it. And that is this :

There is this distinction to be observed between steam railroads and street railways. In the case of the former, they have the exclusive right to the use of their tracks at all times and for all purposes except at road crossings. Street railways have not this exclusive right. Their tracks are used in common by their cars and the traveling public. While this common use is conceded and is unavoidable in towns and cities, the railway companies and the public have not equal rights. Those of the railway companies are superior. Their cars have the right of way, and it is the duty of the citizen, whether on foot or in vehicles, to give unobstructed passage to the cars.” That is not the law in Ohio. Railway companies and travelers on the highway have equal rights, and only equal rights. The street car companies that run their lines through the streets of the city of Cleveland have no greater rights than the citizen on foot, or in his cart or carriage. They both are required to exercise due care. But counsel did not object to that part of the charge, and we think, if the attention of the court had been called to it, he would, no doubt, have corrected this, and for that reason it would not be proper for this court to reverse the case for that reason, so we will have to affirm it.

John O. Winship, for plaintiff in error.

Finney & Norton, for defendant in error.


author: Swing, J.

text:
    (First Circuit—Hamilton County, O., Circuit Court
    Nov. Term, 1894.)
    Before Smith, Swing and Cox, JJ.
    John Podesta et al. v. The Societa Di Unione, etc., et al.

      The funds of a society, organized to assist its sick and needy members, can not, without a change of its constitution, be applied to religious purposes.

    Appeal from to the Court of Common Pleas of Hamilton County.
   Swing, J.

In this case we think the plaintiffs are entitled to the relief prayed for.

The fundamental principles of this society, as expressed in what is dominated its fundamental statutes,” are : First— That the society is not to be interested in politics or religion; and second, it is constituted for the purpose of assisting the members in case of illness, to facilitate the relationship of the Italians as though members of one family, and to promote their instruction. The rules of the society, in carrying out these fundamental statutes, relate to the government of the society as to meetings, membership, etc., and those which relate to the expenditure of money pertain exclusively to those who are needy. Rule 56 provides that “the funds of the society shall be expended only for the purposes of the society.”

The history of the society is that it has been in existence some twenty-six years, during which time it had looked after its sick and needy members, and expended money to relieve them, and also had on several occasions, such as the fire in Chicago, the yellow fever in Memphis, and the earthquake in Italy, donated small sums in aid of the sufferers at these different points. At the time of the donation made in this case, the society had on hands funds aggregating some $12,000, of which $5,500 was attempted to be donated to Archbishop Elder, for the purpose of aiding the congregation of the Sacred Heart, an Italian church in Cincinnati, where most of the families belonging to the society worshiped.

In attempting to make this donation it seems to us that the society went beyond its powers. In the first place, they were prohibited from becoming interested in politics or religion. In this case they gave nearly half their accumulations virtually to a religious denomination. No doubt, many of them would be greatly benefited by this, and the object of the gift must in every way be commended and praised ; but it is clear and self-evident that this society cannot make any and all kinds of gifts simply because they are praiseworthy and commendable, even though they would be of some benefit to members of the society.

It seems manifest to us that the primary object of this society, as shown by their fundamental statutes and rules of governing it, especially those as to the expenditure of its funds, related to its sick and needy members, and even in these the rules are very strict and guarded.

It does not appear that the society had previously been in the habit of making donations such as the one in controversy.'

In the present case, nearly ODe-half its funds are taken away from it. If so much can be taken, all could be taken in the same way, and the original and fundamental purpose of the society Avould thereby be defeated.

It appears to us that this would be manifestly wrong and unjust; in fact it would amount to a fraud upon the rights of those members who objected. Every member has a right to see that the funds of the society are not diverted from the purpose for which the society was created and maintained ; funds can not be collected for one purpose and then devoted to another, unless authorized by the laws of the society.

Von Seggern, Phares & Dewald, for plaintiffs.

Paxton, Warrington & Boutet, for the Society.

In protecting, as we are bound to do, the rights of this society, we do not desire to reflect upon the motives of the members of the society who brought about this intended donation, for it seems to us clear that their purposes were of the most laudable character, and it may be that they may be able through a change or amendment to their fundamental statutes to bring about their desired object. But as the case is presented to us, we find that the attempted donation was beyond their power to make, and that it should be set aside and held for naught.


author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Nov. Term, 1894.)
    Before Smith, Swing and Cox, JJ.
    The P., C., C. & St. L. Railway Company v. H. A. Ensign.

      Facts which will justify the jury in giving punitive damages — Loss or injury by reason of mortification by being badly treated by conductor may be considered by jury in fixing damages — Exception to point in charge of court to jury must be specific to be considered on error.

    Ejrroe to the Court of Common Pleas of Hamilton County.
   Smith, J.

In this case we think the evidence shows that the plaintiff below, while rightfully a passenger upon a train of the defendant Company, having in his possession a mileage book belonging'and issued to himself, and which book was duly presented to the conductor of the train, (when he demanded of the plaintiff his fare for the trip), in strict compliance with the terms of the contract under which it was sold to him, was wrongfully and brutally assaulted and insulted by the conductor, on the unfounded pretense that he was not the owner of the book. No physical injury was inflicted upon the plaintiff, but in a rude and ungentlemanly manner, and with insulting language, in a car full of ladies and gentlemen, he was caught by the collar of his coat, and dragged into the aisle, and would have been ejected from the train, had he not paid his-fare in cash. We see no justification, real or apparent, for the conduct of this official. In our opinion the jury, on the proof as to what then took place, and by reason of the partial ratification of his acts by the defendant Company, and the subsequent conduct of its agents in regard thereto, and of the mode in which this case was defended by the company, was fully warranted, not only in finding a verdict for damages compensating the plaintiff for the injury done to him, and for his reasonable attorney’s fees for the prosecution of his case against the company, and for the value of his mileage book improperly confiscated by the agent of the company, blit in giving him wholesome and substantial punitive damages, for what was alleged in the petition, and as we think shown by the evidence, the wanton and malicious conduct of the. conductor. And in our judgment, the amount of the verdict was not so large as to justify us in reversing the judgment for this reason.

We think the court did not err in refusing to give the special charge asked for by the counsel for the defendant below. The general charge given by the court to the jury on the subject of malice as a ground for punitive damages was full, and it correctly stated the law upon the question, and no prejudice could have resulted to the defendant from the refusal of the trial judge to give the law in the language requested by the defendant.

It is earnestly urged by the counsel for the plaintiff in error, that in the use of the language quoted, the court assumed to tell the jury that the claim of the plaintiff below as to the manner in which he was treated by the conductor, was true, when in fact it was disputed by the evidence offered by the company, and that he thus usurped 'the province of the jury. The language°was this: “You have a right also to consider any loss or injury which the plaintiff may have sustained by reason of the mortification which he may have suffered by being treated, as it is claimed by plaintiff that he was treated in this case.”

It must be remembered that this paragraph is only part of a chai’ge given by the court, as to what elements might properly be taken into the account by the jury in fixing the amount of compensatory damages in case it should find that he was entitled to recover therefor. The judge had instructed them that if they found a verdict for the plaintiff in this case on the issues made, but they further found that the conductor acted honestly and sincerely in the matter, but upon mistaken judgment, and without malice, and without wantonness or malice toward the plaintiff, then that he could only recover compensatory damages; and then said that “in estimating this damage you would have a right to consider any actual physical injury or suffering that may have been sustained by the plaintiff on account of the conduct of the conductor in endeavoring to put him off, if he did make such endeavor.” And then follows the paragraph complained of.

It would certainly have been better if the trial judge had added to the end of this sentence, language like this, “if you find his claim to be true;” but we think that this was in substance what was said, as compensatory damages were to be allowed only if the plaintiff had shown to the jury that he was entitled to them.

In addition to this, we think the exceptions taken to the charge at the time, do not fairly raise this point. The only one that related to this subject in any way was in these words : “Also to that part of the charge of the court as to compensatory damages, relatiug to mortification, position of plaintiff, injury to feelings, and any element of physical injuries.” The evident meaning of this is that counsel dispute the law as given to the jury, that mortification, the position of plaintiff, injury to feelings, and any element of physical injuries might be taken into the account by the jury in fixing the amount of compensatory damages. One great object of an exception to a charge given to the jury is, that the trial judge may be advised of what the counsel except to, so that any verbal or substantial correction may be made by him, if he desires to do so. Here there was no special exception on the ground now urged. If there had been, doubtless the court would have made the addition suggested.

W. K. Maxwell, of Ramsey, Maxwell & Ramsey, for plaintiff in error.

A. W. Goldsmith, of Harmon, Colston, Goldsmith & Hoadly, for defendant in error.

We see no error in the record or proceedings for which the judgment should be reversed, and it will be affirmed, with costs.


author: Hale, J.

text:
    (Eighth Circuit—Cuyahoga County, O., Circuit Court
    Sept. Term, 1894.)
    Before Baldwin, Caldwell and Hale, JJ.
    R. B. Mahaffey et al. v. A. C. Rogers et al.
    1. A judgment taken on a cognovit note payable to A. C. R. & Co., in an action in which the plaintiff is described as A. B. & C. D., partners under the firm name of A. O. R. & Co., is not absolutely void as being unauthorized by the power of attorney.
    2. Where the plea of res judicata is interposed, parol evidence is admissible to show the distinctive issue on which a case was tried when the record is silent in this respect.
    Error to the Court of Common Pleas of Cuyahoga County.
   Hale, J.

The plaintiffs in error are trustees of the Order of Friendship and Good Will, a corporation organized not for profit. The action below was brought against them as trustees to enforce the payment of an indebtedness against the corporation contracted by them.

The petition alleges that A. C. Rogers & Co. recovered a judgment against the corporation; that execution was issued upon that judgment, and returned “no goods orchattels or other property found whereon to levy”; that the obligation upon which said judgment was raised, was a promissory note of the Order of Friendship and Good Will, and that said promissory note was given upon a balance due on account for goods sold and delivered, and labor and service performed by plaintiffs for the said corporation, and upon the order and contract of said defendants as aforesaid. In other words, the action is sought to be maintained by plaintiff against the defendants, the trustees of the corporation, on the ground that the corporation was insolvent, and that the trustees were responsible for the indebtedness of the corporation.

The first ground of defense is based upon the allegation that the judgment which was taken against the corporation was utterly void; and .that it was error to receive the record of it in evidence. This judgment was taken upon a promissory note with a cognovit attached, payable to A. C. Rogers & Co. The action was brought by A. C. Rogers and another, partners as A.C. Rogers &Co., and a judgment taken for plaintiffs. The claim is that this was not authorized by the power of attorney under which confession of judgment was had, and was such a variance as to make the judgment absolutely void. We cannot assent to that proposition. We think the judgment, in the absence of any proceedings in error, is clearly valid, and must be so regarded until reversed. Whether it could have been reversed or not, we do not say.

Second, it is claimed that this same cause of action against the same defendants in behalf of the same plaintiff, has been once tried, and judgment rendered in favor of the defendants. It is claimed that this is a bar to the present action. The facts relied on to support this claim are these : An action was commenced against these defendants by A. C. Rogers & Co., before Levi Bander, a Justice of the Peace, and judgment rendered in favor of defendants. The justice was called as a witness, and testified that that judgment was rendered upon the issue whether the corporation was in fact insolvent. At that time no judgment had been taken against the corporation, and the liability of the trustees being collateral and secondary, and the company not having been proceeded against, the action could not be enforced against the individual trustees. The justice testified that upon that ground alone he decided the case. It is claimed that that testimony was incompetent ; that the record should speak for itself.

Several issues were made in that case as to whether the defendants were trustees of the corporation ; whether the debt was contracted by them within the meaning of our statute, and whether the corporation was insolvent so that an action could be maintained against the individuals. These issues were all involved in that case. Bauder testifies that he decided it upon the technical ground that the action could not then be maintained, because it did not appear that the corporation was insolvent. That is the legal effect of what he said. We think where there are several issues invols’ed in a case, it is competent to show by parol testimony that the case was decided upon some technicality or some one issue, aud the others not passed upon. Wharton, in his Law of Evidence, section 688, after discussing the question, says : The same rule applies when the object is to prove that a former judgment was rendered, not on the merits, but on technical grounds. Evidence is also admissible to show the distinctive issue on which a case was tried when the evidence is silent in this respect.”

After this case was heard and.disposed of by Justice Bauder, the plaintiffs took judgment against the corporation, and failed to obtain satisfaction of such judgment. The testimony of Bauder, as appears from this record, is competent, and the judgment in connection with that testimony shows that the issue here is different from the one that was there decided.

Again, it is said that the claim here is not one for which the trustees are liable. Section 3261, Revised Statutes, provides as follows: “ Trustees of a corporation created for a purpose other than profit, shall be personally liable for all debts of the corporation by them contracted.”

George A. Groot and O. W. JBroadwell, for plaintiff in error.

M. B. ¿c H. H. Johnson, for defendants in error.

It is said the proof in this case fails to show that this indebtedness was contracted by the trustees of the corporation. We suppose this section was passed in pursuance 'of the provision of the constitution, which provides that dues of corporations shall be secured by such liability of stockholders and other means as may be provided by law. We are clearly satisfied that the charge of the court in this behalf was quite as favorable as should have been in behalf of plaintiffs in error ; and that the verdict of the jury in finding that the trustees were responsible for this indebtedness is fully sustained by the facts. The indebtedness was incurred in behalf of the corporation, and for its benefit. After it was created, the trustees authorized the giving of the note of the corporation for this indebtedness. A. C. Rogers & Co. refused to-take the note of the corporation, but took the note of the individuals which, on renewal later, was changed into the note of the corporation

We see no substantial error in this record. The judgment of the court below is affirmed.


author: Moore, J.

text:
    (Third Circuit—Defiance Co., O., Circuit Court
    Feb. Term, 1894.)
    Before Moore, Seney and Day, JJ.
    The Wabash Railroad Company v. The City of Defiance.
    1. Where a part of a county road comes by the annexation of contiguous territory within the limits of a municipal corporation, it is subject to the control and supervision of the municipal authorities, and may be improved as other streets of the municipality. „

      2. The municipal authorities have the power to establish the grade of such road, and in doing so can remove a bridge passing over a railroad, that crosses such road, and make the crossing at grade.
    3. The streets of a municipal corporation are to be held in trust for public uses and the power over them is to exercised by the municipal authorities for such public uses. Section 3283 of the Bevised Statutes, gives no right to the city authorities to barter away the rights of the public in the streets.
    4. It is in the discretion of the municipal authorities to determine at what grade its streets shall cross a railroad, the track of which runs through the municipality.
    On appeal from the Court of Common Pleas of Defiance County.
   Moore, J.

But little contest is made as to the facts, and they may be briefly stated. What is now known as the Wabash Railroad was first operated in about the year 1856. ' The line of road passed through Defiance county, the defendant, the city of Defiance, being situated upon the line. In constructing the railroad near the town of Defiance, it crossed what were known as the Holgate pike and Brunersburg road. These were state or county roads, and a short distance from where the railroad crosses each of them, they unite, forming an acute' angle. The distance at which they are apart at the points crossed by the railroad is some two hundred feet. The distance from the railroad crossing to the point of intersection is about seventy feet.

The railroad along its line where it crosses these two roads is at a grade about eleven or twelve feet below the surface of the ground. And at each crossing a bridge was constructed passing over the railroad, and until the year 1887, these bridges were at an elevation above the grade of .the railroad of sixteen feet ten inches. Some time after the construction of the railroad, and long prior to the year 1887, the territory through which the railroad passed and was crossed by these two public highways, became a part of the city of Defiance, and was in the year 1887, and is now within the territorial limits or such city.

The plaintiff, The Wabash Railroad Company, is the successor of the original corporation, and is entitled to all the franchises possessed by it, and that have been acquired by intermediate owners.

On the 26th day of December, 1887, the council of the city of Defiance duly passed the following ordinance :

“ An Ordinance. — Permitting the Wabash, St. Louis and Pacific Railway to construct bridges at Holgate pike and Brunersburg road.
Section 1. Be it ordained by the council of the city of Defiance, Ohio, That the Wabash, St. Louis and Pacific Railway Company is hereby authorized to erect new bridges over and across the track of the railway of said company where the same crosses the public streets in the Third ward of said city, known as the Brunersburg road and Holgate pike, provided said bridges shall be of good subtantial construction, placed in the center of said streets, eighteen feet wide roadway, with good and substantial sidewalks eight feet wide on each side of said bridges with proper railings on each side of said walks, said bridges and side walks to be at all times kept in good order and repair by said company. And said railway company is hereby further authorized to construct each of said bridges of sufficient height to give a distance of twenty-one feet in the clear between the tops of the rails of said railway at its present grade and the bottom of the floor beams of said bridges, provided always that said company shall provide and construct good and sufficient approaches and grade to each of said bridges, and extend the same to sufficient distance to give a grade of not to exceed one and one-fourth inches to the foot, and to conform to the width of the present streets, said grade to be made firm aud solid by either stone or gravel at the option of said company, provided that if gravel be used,, said city will permit it to be taken from their gravel bed without charge, and to construct and keep in constant repair good and proper approaches to said sidewalks, and brought to the proper level of the present walk by broad, safe steps where the grade would be too great for a safe incline, all to be done to the approval of the city, and all to be kept in repair to the extent of said compañas right of way, at all times by said company.
“ Section 2. The entering of the work of constructing said bridges by said company, shall be taken as an acceptance oí the terms thereof by said company, and shall be regarded as superceding any contract or agreement heretofore existing between said company and said city as to either of said bridges. _
_ “ Section 3. This ordinance shall take effect and be in force from and after its passage and due publication.
“Done at the council chamber in regular session,this 20th day of December, 1887. — Attest, James A. Kitchel, City Clerk.”

The Wabash, St. Louis and Pacific railway Company was at the time of the passage of the ordinance, in the hands of a receiver. The receiver proceeded to accept the conditions imposed by said ordinance, and caused the bridges, approaches and sidewalks to be erected as provided. Afterwards, the Wabash, St. Louis and Pácific Railway, with all its right, property and franchises, was sold at judicial sale, the said purchaser thereof being the plaintiff, which said plaintiff ever since and does now own the same. That the plaintiff since it has become possessed of the said property and rights, has maintained said bridges, approaches and sidewalks as provided for in the said ordinance.

By the provisions of this ordinance the railroad company was permitted to and did elevate the bridges to the height of twenty-one feet above the grade of the railroad, and about ten feet above the level of the surface of the earth at the points where they cross the railroad track. The Brunersburg road is now named Ralston avenue, and the Holgate pike is named Clinton street.

On the 6th day of February, 1893, the city council of the city of Defiance passed two ordinances, one to improve Ralston avenue, and the other to improve Clinton street. Without reading these ordinances, it is enough to say that each of said streets is to be cut down so as to cross the railroad at grade.

The ascent from the railroad in each direction on Clinton street will be about four and one-half feet per one hundred feet, extending sonth-easterly two hundred feet and northwesterly three hundred feet, and on Ralston avenue five feet to the hundred feet, extending south for two hundred feet, and about three feet per each hundred feet extending north a distance of three hundred and fifty feet. Such improvement is to be made at the expense of the city. These ordinances were passed in pursuance of the resolutions of the city council, passed September 11,1892, declaring the necessity of the improvements. The plaintiff was duly served with notice of the passage of the resolutions, and made no claim for damages.

Under the facts briefly stated, the plaintiff seeks to enjoin the defendant from enforcing the ordinance lowering the grade of the two streets named, and from in any manner taking down and destroying the over-head bridges, approaches and sidewalks leading thereto.

If the question were one in which alone the expediency of changing the street crossings was to be determined, it could be readily disposed of. That crossing at grade is much more dangerous than over-head crossing, goes without questioning.

Under the conditions as they exist at these crossings, both the streets and railway track passing through deep cuts near the intersection, renders the crossing at grade much more dangerous and unsafe than the ordinary grade crossing, and we must express surprise that a city council composed of intelligent gentlemen, should determine in favor of the change provided for by the ordinances passed in 1893. The city council, however, has determined that the improvement of the streets and change of grade is necessary, and by ordinance provided that such streets be so improved.

The sole question then, is whether under the facts existing, the city has the right which it claims to have, and which it is about to exercise, to so improve the streets as to cross the railroad tracks at grade. If the city council had such power or right, theu whether it was exercised as the court would have done, is immaterial That is, the court cannot control the legislative discretion of the city council.

Section 2640, Revised Statutes, provides: “The council shall have the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation, and shall cause the same tobe kept open and in repair, and free from nuisance.”

A claim is made that the Holgate Pike (now Clinton street) and the Brunersburg Road (now Ralston Avenue) are county and state roads, under the control- of the board of county commissioners. This position is not tenable. The Supreme Court have held in Steubenville v. Kiny, 25 Ohio St. 610:

Where territory, including a public road, connecting with the streets of a city, is annexed to the city, and the road continues to be used as a street or thoroughfare, it thereby becomes a public highway of the city within the meaning of this section, (section 2640), although it has never been accepted and confirmed by an ordinance specifically passed for such purpose,’ as provided in section 2650.”

Section 4906, referred to by counsel, applies only to improved roads, and has no relevancy to this case.

So, that the roads in question being within the territorial limits of the city of Defiance, are streets within the meaning of section 2640, and are under the care, control and supervision of the city council.

Again, it is claimed that under sec. 3283, the ordinance passed in 1887, authorizing the receiver to construct the bridges over the railroad, was a contract between the city and receiver, to whose rights this plaintiff has succeeded, that is equally binding on each of the parties, and which the city can not, by ordinance or otherwise, disregard and violate. That the plaintiff’s rights under it have vested by a performance of the contract, which rights being beneficial to the plaintiff, cannot be disregarded by the city. That the plaintiff' should be protected in what it acquired" under the contract.

Section 3283 reads as follows :

“ If it be necessary; in the location of any part of a railroad, to occupy any public road, street, alley, way, or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities, owning or having charge thereof, and the company may agree upon the manner, terms, and conditions upon which the same may be used or occupied; and if the parties be unable to agree thereon, and it is necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for in the appropriation of the property of individuals; but every company which lays a track upon any such street, alley, road, or ground, shall be responsible for injuries done thereby to private or public property lying upon or near to such ground, which may be recovered by civil action brought by the owner, before the proper court, at any time within two years from the completion of such track.” ■

This section gives the right to the railroad company to contract with the city for the right to use the road, street or public alley for its purposes, that is, to lay its track along the street, and the manner, terms and conditions upon which such street, etc., may be used. It does not, however, abridge or limit the right vested in the city in the care, supervision and control of the streets, as provided by section 2640. It gives the right to contract with the city as to what part of the streets it, the railroad, shall occupy, the manner in which its track stall be graded, ballasted, or provided with filling for crossings, etc., but not the right to limit the mode in which the city shall grade or use its street. Another section, section 3324, provides for crossings. The city cannot, by contract, barter away its legislative power, its right to change the grade of its streets, and the manner in which they shall be improved. Nor do we think that section 3283 is intended for such purpose. That the plaintiff has the right to occupy the street by laying its track across it is clear, and that the city has the right to cross the street at grade, or by over-head bridges, is equally as clear. The conditions may materially change, the necessity to change the grade of the street may exist, and the right to make such change and determine the grade is vested in the city council, and its action is not to be controlled by the courts, nor can it be abridged by contract..

The city, by permitting the railroad company to cross its street, did not part with its right to control such street, for without some special legislative authority, it cannot, make any such grant to a railroad company, if the effect of sueh grant would be to relinquish its own control over such street. The privilege of a railroad company to lay its track across a street, must be exercised in common with the general public. The streets are held in trust for the public use, and are public for all purposes, for free and unobstructed travel. For those purposes a city may improve and control them, and the power to do so is, in Ohio, vested in the city council.

To sustain the position I have attempted to briefly state, I refer to but few authorities. I read from Dillon’s Municipal Corporations, section 686 : “That .the power to grade and improve streets, like other legislative powers, is a continuing one, unless the contrary is indicated, has been frequently decided by the federal and state courts. It may therefore be exercised from time to time as the wants of the public may require. Of the necessity or expediency of its exercise, the governing body of the corporation, and not the courts, is the judge.”

The same author, section 97, says : “Powers are conferred upon municipal corporations for public purposes ; andas their legislative powers cannot be delegated, so they cannot, without legislative authority, express or implied, be bargained or bartered away. Such corporations may make authorized contracts, but they have no power, as a party, to make contracts or pass by-laws which shall cede, away, control or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties.”

In the ease of Indianapolis v. Indianapolis Gas Co., 66 Ind. 396, the court say : Contracts to violate the charter, or to bargain away or restrict the free exercise of legislative discretion, vested in a municipality or its officers in reference to public trusts,are void.” The City of Defiance, as we haveseen, has the control, care and supervision over the streets that have come within its territorial jurisdiction by annexation, as it has of the streets that were within its original boundary. The improving and grading of streets is within the legislative discretion of the city council, and such legislative discretion cannot be contracted away. It is not a subject of bargain or barter.

Again, referring to Dillon’s Municipal Corporations, section 94, the author says : “ Thus, where the law or charter confers upon the city council or local legislature power to determine upon the expediency or necessity of measures relating to the local government, their judgment upon matters thus committed to them, while acting within the scope of their authority, cannot be controlled by the courts. In such case the decision of the corporate body is, in the absence of fraud, final and conclusive, unless they transcend their powers. Thus, for example, if a city has power to grade streets, the courts will not inquire into the necessity of the exercise of it, or the refusal to exercise it, nor whether a particular grade adopted, or a particular mode of executing the grade is judicious.”

It is a general and fundamental principle of law, that all persons contracting with a municipal corporation, must at their peril inquire into the power of the corporation or its officers to make the contract; and a contract beyond the scope of the corporate power is void.

The city of Defiance had no power to contract away or restrict by contract the free exercise of its legislative discretion. The Railroad Company knew, or it is held to have known, when it erected the bridges making the overhead crossings, that the city had no such power.

The plaintiff has cited the court to the case of The Phil., Wilmington & Balt. R. R. Co. v. The City of Chester, decided by the Supreme Court of Penusylvania, and reported in 15 At. R. The syllabus reads : “Defendant agreed to establisb the grade of a street, about to be opened eighteen feet above plaintiff's track, to facilitate the operation of trains under the street, and plaintiff agreed to construct a bridge over its track. Held : That the contract, was within the act of Pa., March 12, 1873, authorizing defendant to grant to plaintiff the use of its street, whether opened or tobe opened, and defendant could not remove the bridge and change the. crossing to a level grade.''

The court say in its opinion : “The act of March 15, 1873, (Pa. L. 376), contains in the concluding clause, the following provision: “Such grants as aforesaid, when made and approved by ordinance of the mayor and council, shall be as valid and effectual to transfer the rights and privileges therein contracted for to the said companies, or any of them, or any of their successors and assigns, as if made between individuals ; and the mayor and council of said city shall have power to enact ordinances from time to time as they may deem advisable and expedient for the purposes of this act. The contract was approved by ordinance as provided August 17, 1874.''

The case is to be distinguished in two respects from the one under consideration.

First. — By express act of the legislature, the city was authorized to make the contract.

Second. — Under such express authority, the city contracted with the railroad company, that it would establish the grade of its street eighteen feet above the track. It was a street to be opened across the track. No express authority is given by the statutes of Ohio, to make such contract as exists in the Pennsylvania statute.

Again, if such power was granted, the city of Defiance never contracted with the Railroad Company, that it would establish the grade of its street so as to make an overhead crossing. All it did do was to authorize or permit the receiver of the railroad company to build overhead bridges. So we see the case cited has but little, if any, application to the case at bar.

It is further claimed, as averred in the petition, that further grading down of said highways as proposed by said ordinances will be an appropriation of the plaintiff’s property, and will also cast an additional burden upon the plaintiff in the establishing and maintaining of new grade crossings over its said track, for which no compensation has been provided in money for the plaintiff, and no tender thereof made to the plaintiff, and the failure so to do is in violation of the constitution of the state.

The city is not attempting to appropriate any of the property of the Railroad Company. The right of the Company is only to lay its track across the street; other.than that, it has no right in the street; with that right the city in the exercise of its power does not propose to interfere. The statute of the state provides, that every person or corporation operating a railroad shall maintain safe and sufficient, crossings at every highway and street where such railroad shall cross the same. It would therefore, necessarily follow, that such crossing must conform to the grade of the highway or the street, as determined by the authorities having the care and control of. the same. It would be unreasonable therefore to claim that because the grade of the street is now established, the city would have to condemn the property of the railroad in crossing. It is fortunate in Ohio that railroad companies do not own the streets; that they can have but an easement in them. The city is not extending its streets across this railroad. It is simply in the legally authorized manner trying to improve its own property. The railroad company w'as required by the statute to make the crossings, which by the permission of the city council, it did by the overhead bridges. These were for public use, and not the private use of the railroad company. These bridges were public property, and even if the bridges were to be considered as private property belonging to the railroad company, they were placed upon the public street subject to be removed, when the public through its authorized agent, the city council, so determined. The city now, for the first time, lias established the grade of these streets. The railroad company can have no higher or better right than abutting lot owners upon such streets. The Supreme Court has held in the case of the City of Cincinnati v. Grove J. Penny, 21 Ohio St. 499: “As a general rule a municipal corporation is not liable for injuries to buildings or lots, abutting streets and alleys, resulting from the improvement of such streets or alleys, or from their appropriation to a public use, provided its officers and agents in making such improvements or appropriation, act within the scope of their authority, and without negligence or malice.”

In The City of Akron v. The Chamberlain Company, 34 Ohio St., the Supreme Court again hold : “ The owner of a lot abutting on an unimproved street of a city or village, in erecting buildings thereon, assumes the risk of all damage which may result from the subsequent grading and improvement of the street by municipal authorities, if made within the reasonable exercise of their power.”

While these decisions are not directly in point, they establish the principle that where an owner of property abutting upon a street where the grade has not been established, makes improvements thereon, he does so at the risk of the injury that may result to his property, when the grade of the street is made under a reasonable exercise of the power vested in the municipality; and it is said that whatever latitude there may be in the exercise of discretion in fixing the grade of a street, is lodged in the municipal authorities, and not in the lot owners. The conclusion, therefore, to be reached is that not only is the plaintiff in no situation to have a condemnation of any property it has in the overhead bridges, made by the city before it can proceed with its improvement, but that its right to recover damages for any injury resulting from making the improvement is very questionable. It is verj clear that the city is not seeking to appropriate any of the property of the plaintiff, and no injunction should lie because of such claim. If any damage should result to the railroad company because of any act on the part of the city, an action at law would be the remedy, and nota suit in equity to enjoin a public improvement. The fundamental idea of a street-is not only that it is public, but public for all purposes of free and unobstructed passage, which is the chief and primary use. To say that the plaintiff had ^property rights in the overhead bridges so erected for crossing the tracks of the railroad, is inconsistent with the fundamental object and use of the streets.

When the city has determined upon the improvement of a street, it can remove whatever is within the street to accomplish such object. And, although the fee of the street may be in the adjoining lot-owner, the city in grading'the street may remove the soil, and use it in improving that street or any other street in the city. This right includes the right on the part of the city to dispose of the soil to others who will remove it. Or, if the adjoining owner does not remove the soil, the city may sell and dispose of it any Avay it deems proper.

The plaintiff has no right in the fee. It has no reversionary interest in the real estate. The bridges, when erected, became a part of the streets for public use and for free and unobstructed travel. They being within the streets are subject to removal, the same as if originally erected by the public. The fact that the city permitted the railroad company to make such crossings, did not divest the city of any of its right of ownership or control of the streets. If, perchance, the railroad company should be held to own the material of which the bridges are built, it will be time for it to complain when the city has converted such personal property, and seek its remedy either in replevin or for damages, for the injury it may sustain.

It is claimed that the railroad company will be at the mercy of the city council. If the city council establishes its grade, and a crossing is made to correspond thereto, it cannot afterward require the railroad company to expend money for another different crossing. It can lay no further burdens upon the railroad company. And if the city should seek to change its grade to an overhead crossing, it could'not do so at the expense of the railroad company.

Alex. L. Smith and Henry Newbegin, for plaintiff.

W. H. Hubbard, City Solicitor, and B. B. Kingsbury, for defendant.

The plaintiff's petition will be dismissed with costs.

Day, J., concurs.

Sjgney, J., dissents.


text:
    (First Circuit—Hamilton County, O., Circuit Court
    Nov. Term, 1894.)
    Before Smith, Swing and Cox, J J.

    Charles A. Morganfield v. R. M. Archibald, Sheriff.
    1. A trial under a writ of habeas corpus, allowed and returnable to one of the judges of the court of common pleas, may be heard and determined by another judge of the same court, if from any proper cause the case is brought before him. There is no difference, in this respect, between a proceeding of this kind and other civil actions.
    2. The judgment of discharge of a prisoner in one habeas corpus proceeding, is no bar to a different judgment in another proceeding, where the imprisonment is justified under a wholly different warrant issued for a wholly different purpose.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

We are of the opinion that there was no error in the proceedings or judgment of the court of common pleas in this case, and that the judgment should be affirmed, with costs.

It is claimed by the counsel for the plaintiff in error, that the judgment of the court on the facts was not warranted by the evidence, and that the court erred in not granting him a new trial. But it was clearly shown that an indictment had been found by the grand jury of Stafford county, Virginia, against Charles Morgan, alias Charles Augustus Morganthal, charging him with the crime of robbery, which is a crime in Virginia and Ohio, and said indictment appears to be in due form of law. That a requisition was duly made by the Governor of the state of Virginia upon the Governor of the state of Ohio for the apprehension of such personas a fugitive from justice, who had taken refuge in the state of Ohio, and his delivery to the agent of the state of Virginia, and that such requisition was accompanied by such papers and evidence as fully warranted Governor McKinley in issuing a warrant for the arrest of such person, and it was duly issued to the sheriff of Hamilton county, who, by virtue thereof, arrested the plaintiff in error, and in further compliance with said warrant and the law of this state, at once took him before the Hon. M. F. Wilson, one of the judges of the Court of Common, Pleas of Hamilton County, to be dealt'with according to law.

It further appears, that while he was still in the custody of the sheriff under this writ, and with the extradition proceedings in progress, this proceeding in habeas corpus was instituted, and the sheriff, as his justification for holding the relator in custody, by his return set out a copy of the warrant issued to him by the Governor. On the trial which was had under the circumstances hereinafter stated, the foregoing facts were shown, and it was also made to appear with great certainty and clearness, that the relator was the identical person who was charged in said indictment under the name of Charles Morgan, alias Charles Augustus Morganthal, and that it was he who was charged by witnesses before the grand jury, with being the man who committed the robbery, and that after the criminal act was committed, he had fled from the state of Virginia and had taken refuge in the state of Ohio. The evidence in the case was embodied in a bill of exceptions, and is all before us.

It is said to us that the extradition case, and the habeas cor pus case, were heard by Judge Wilson at the same time, and the evidence applied to both. And if this be so, it would seem entirely clear that it would be the duty of the court in the extradition case, under the laws of this state, and of the United States, which are binding in such cases upon all of us, to make proper order for the extradition of the person named in the warrant of the Governor, and his delivery to the agent of the state of Virginia; and in the habeas corpus case, to refuse to discharge the relator from the custody of the sheriff, unless something else was disclosed which would show that such orders were not legal or proper. It is said that such an order was made in the extradition case, (which is not before us in any way), and in the habeas corpus case the court did refuse to discharge the relator. And this last action comes to us on error, and it is the claim of the plaintiff in error, that the action of the court in other respects was void and erroneous, and should be reversed and held for naught.

It is claimed that the judgmént is absolutely void for this reason : that the judge who tried and decided it had no right whatever to do so. It appears from the record and evidence that the plaintiff in error, on December 24, 1894, filed in the Court of Common Pleas of Hamilton County his petition in habeas corpus; alleging that he was illegally restrained and deprived of his liberty by sheriff Archibald. Application was made on the sameday to Hon. Chas. Evans, one of the judges of said court, who at once indorsed thereon an allowance of the issue of a writ returnable at 11 o’clock, A. M., of said day, before himself. And an entry thereof was made upon the journal of his court; and on the same day the sheriff returned the writ before him in his court, and the case was then by entry upon the journal continued until January 10, 1895. On the day last named, the case was called before Judge Wilson, and as appears from the bill of exceptions, a protest was filed by plaintiff in error, sworn to by him, stating that the writ in the case had been allowed by and was returnable before Judge' Evans, and that he protests against Judge Wilson trying the ease, because be could not be fair and impartial, for the reason that the Adams Express Company was the prosecutor of the case against him, and had brought a civil action to recover money found on the relator when he was arrested, and because Judge Wilson had been the attorney for the Express Company for many 'years, and so continued until be went upon the bench in 1893, and was also a shareholder in said company, and that he had not the right to sit in the trial of this case because it was a special proceeding, partly heard by Judge Evans, and that Judge Wilson could not assume to sit in his absence. Counter evidence wasintroduced, showing that these allegations of facts were untrue, and the objection or protest was overruled by the court, and the judge ordered the trial to proceed, to which the plaintiff in error excepted.

' We. are of the opinion that the proceeding was one pending in the court of common pleas of this county, and of which any of the judges of that court had jurisdiction. Though the writ was allowed by Judge Evans, it was on the docket of the court, and was on the return day continued until January 10. If from any cause the case was then tried by a judge other than the one who allowed the writ to issue, the judgment rendered by him would be as valid as if rendered by the one who allowed it. We see no difference in this respect between a proceeding of this kind brought upon the trial docket of the court, and other civil actions.

As to the plea that the question involved in this proceeding had once been adjudicated, and that the judgment rendered in another habeas corpus proceeding discharging the prisoner from imprisonment under another warrant (or under no warrant), held by another person, is a harto a different judgment in this case, where the imprisonment is sought to be justified under a wholly different warrant, issued for a wholly different purpose, we are of the opinion that such claim should not be upheld. As we have said, the parties, and the subject-matter are wholly different. The claim that the right of the sheriff to hold a person arrested by him on a warrant issued by the Governor of the state in strict conformity with the laws of this state and of the United States, can be defeated or done away with, for the reason, that in some other proceeding an imprisonment- of a relator on a writ issued by another official has for any cause been held unlawful, though having some reference to the same offense, it may be, can not be correct. We see no law to justify it, and it is not reasonable.

Thos. F. Shay, for plaintiff in error.

Ramsey, Maxwell & Ramsey, for Mr. White.

Prosecuting Attorney of Stafford County, Va., contra.

The objection made to the deposition offered was not good, for the reason that the exception thereto was not taken at the time or in the way provided by the statute.

Thejudgment will be affirmed.