author: COOK, J. BURROWS, J.,

text:
    CONSTRUCTION OF WILL.
    [Trumbull (7th) Circuit Court,
    October Term, 1903.]
    Laubie, Cook and Burrows; JJ.
    C. W. Owsley v. Thomas Price et al.
    Election or Widow to Take Under Will or Her Husband.
    Testator at the time of the execution of his will and at his death, was the owner of the undivided 19-28 of 51% acres of land and his wife was the owner of the other undivided 9-28 thereof, they having obtained title by deed executed to them jointly, the property constituting their homestead. He was also the sole owner of two other small parcels of land. His will provided that his widow should have a life estate in all of his real property, and at her death it was to be sold and the proceeds divided as directed in the will. The widow elected in the probate court to take under the will: Held, that the widow did not, by such election, waive her right to the fee in the 9-28 of the 51% acres; that she had a legal right to devise the same and that such devise would be upheld. Hibbs v. Insurance Co. 40 Ohio St. 543, distinguished.
    Appeal from tbe court of common pleas of Trumbull county.
    W. M. Owsley and T. H. Gillmer, for plaintiff.
    Arrel, McVey & Taylor, W. W. Zimmerman and Smiley & Weiss, for defendants.
   COOK, J.

Tbis is an action for partition of real estate and comes into tbis court on appeal.

Tbe question involved is tbe construction of the will of Thomas Price and tbe effect of an election by Mary L. Price, his widow, in tbe probate court, to take under tbe will.

At tbe time of making tbe will, and also at tbe death of Thomas Price, be and bis wife were the joint owners of 51 y2 acres of land in Trumbull county, be being the owner of 19-28, and she 9-28. These premises were their homestead and they bad jointly occupied it as such for a number of years, it being an ordinary small farm. They obtained title through a joint deed executed to them. Thomas Price at tbe same time was also the sole owner of two small tracts of land, one containing; one acre and the other one-fonrth of an acre. His will provided as< follows:

“Item 3. I give and devise all my real property which I do now' possess or may possess at the time of my death containing at the present; time the homestead of 51% acres, more or less, recorded in TrumbulT county records, Yol. 105, page 36, and Yol. 139, pages 6 and 7; also as-' recorded in county records YoL 142, page 26, containing one acre o£ land; also as recorded in county records Yol. 147, page 336, containing' one-fourth of an acre of land, to my beloved wife, Mary Louise Price, during her natural life, not to be sold nor exchanged by her; then after her death one year, it is my wish that my executor hereinafter named shall cause all of the said property, my real property as above mentioned, also any other that I may possess at the time of my death to be sold as he may see fit, and the proceeds to be by him, my executor, equally divided between the eight following named persons.”

The widow, Mary L. Price, on being cited to appear in the probate court, to elect whether or not she would take under the will, elected in court to take under the will.

The widow, Mary L. Price, after such election made a will by which she devised her 9-28 interest, or undivided part, of said 51% acre tract to Mary Jane Owsley and her husband, C. H. Owsley, as she expressed it in the will “as a reward for kindness and care that they have extended to me in years past, asking them that at my death they will see that I have suitable burial by the side of my deceased husband, Thomas Price. ’ ’

C. H. Owsley succeeded to all the rights of Mary Jane Owsley in said premises under such will, if she had any. The Owsleys were not included in the eight beneficiaries named by Thomas Price in his will.

It is claimed that this case is ruled by Hibbs v. Insurance Co. 40 Ohio St. 543. We do not think so. In that case the provision of the will was “ *1 give and devise to my beloved wife, in lieu of dower, the farm on which we now reside, * * * containing about 200 acres, during her natural life.’ ” Also, the will gave her a large amount of stock on the farm, bank stock, etc., and the clause concluded with the words, “ ‘At the death of my said wife, the real estate aforesaid I give, devise and bequeath to my grandson, William Miller.’ ” Eighty acres of the 200 had come to the wife by descent, was her sole property, and had been so incorporated with the farm for many years as to entirely lose its identity as a separate tract. The widow elected to take under the will and the court held by so doing she relinquished her fee in the eighty aeres under the doctrine as stated in the case, page 55.3, “that if a testator has affected to dispose of property which is not his own, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit.so, given to him must.make good the testator’s attempted disposition; but, if on the contrary he chooses to enforce his proprietary rights against the testator’s disposition, equity will sequester the property given to him, for the purpose of making satisfaction out of. it to the person whom he has disappointed by the assertion of those rights.”

And, again:

“ ‘It is a well-settled principle of equity, that where a will assumes to give to one of its beneficiaries property belonging to another person, for whom provision is likewise made in the will, the latter is bound to elect whether he will claim the property so disposed of, or take the provision made for him in the will; and that he cannot have both.’ ”

While there is no question but what this is the general doctrine as stated in the authorities, yet, they all agree that the rule is a harsh one, and in Charch v. Charch, 57 Ohio St. 561, 580 [49 N. E. Rep. 408], it is said:

“But it is also well settled that the language of the will expressive of the intent to give another’s property must be unequivocal.”

If the provision in question, taken in connection with the whole will, will reasonably admit a construction not involving a disposition of such property, that construction must prevail. In order to create the necessity for an election, there must appear on the face of the will itself a clear, unmistakable intention on the part of the testator to dispose of property, which is in fact not his own. The language must be so clear as to leave no doubt as to the testator’s design; as in Hibbs v. Insurance Co. supra, where the testator gave to the wife in unequivocal words the whole farm, “the farm on which we now reside,” and which was at his death to go to the grandson. The necessity for an election cannot arise from an uncertain or dubious interpretation of the will.

In Charch v. Charch, supra, the testator held a number of insurance policies upon his,life. Two of them were payable to his wife upon his death, she being named as beneficiary, while several others were payable to him or his estate. The language of the will was, page 571:

“I direct that my executor collect and realize on my life insurance policies, which I hold upon my life, and distribute the proceeds in accordance with the terms of my will and codicil. ’ ’

The will and, codicil provided that the wife was to receive during, her life $100 per month so long as her two daughters remained unmarried, and then $70 per month, and also to have the use of residence free of taxes and assessments during her life, and in addition thereto $1,000 in ■cash upon his decease. The court held that although all the policies of insurance were in the possession of the testator at the time he made the will and up to his death, yet it could not be said that he intended to bequeath the two policies in which his wife was named beneficiary; and although she elected to take under the will in the probate court and persisted in her election, yet the proceeds of .the two policies should go to her.

Judge Spear, in the opinion says, page 577:

“The subject-matter is his policies — my policies, is the phrase. The words following ‘which I hold’ would, in common parlance, signify manual possession, but the expression is subordinate to that which precedes, and taken in connection with it, implies possession of that which was his'. Nor is the result different if a technical legal meaning is given the word ‘hold.’ In deeds it signifies tenure. But tenure cannot exist in favor of one respecting that in which he has no property interest. If the question were as to a devise of land in this form, ‘all my land of which I have possession,’ would any intelligent mind assume that .the will evinced a purpose to convey land of another which might at the time happen to be in the possession of the testator ? Surely not. The canons of construction will not permit a provision clearly disposing only of property in the possession of the testator of which he is the owner to be held to include property in his possession which belongs to another.”

Again, he says, page 580:

“The case at bar is dissimilar from Hibbs v. Insurance Co. 40 Ohio St. 543, relied upon in argument, in this important particular. There the description of the property of the wife was clearly defined, and it was clearly included in the devise; here it is not only not clearly included, but is, as we think, clearly excluded by the terms of the codicil.”

In the case under consideration the property was an undivídéd interest in land. The husband’s possession would also be the wife’s, possession. The provision of the will is:

“I give and bequeath all my real property which I do now possess or may possess at the time of my death, to my beloved wife, Mary Louise Price, during her natural life, not to be'sold nor exchanged by her; then after her death one year, it is my wish that my excutor hereinafter named shall cause all of the said property, my real property as above mentioned, also any other that I may possess at the time of my death, to be sold as be may see ñt, and tbe proceeds to be by bim, my executor, equally divided between tbe eight following named persons.”

Tbe testator, it seems to us, took special pains only to include his own property. The provision is “my real property which I possess or may possess at my death.” Then again his executor is ordered to sell all of the said property, my real property, not his wife’s real property, but his own real property, which he possessed, of which he had the tenure.

In construing wills there is one rule applicable to all wills alike, and that is, that the meaning and intention of the testator is to be ascertained from the language of the will itself, so that but little aid is given in one case by the construction adopted in another.

In order, therefore, to make this ease on all fours with Hibbs v. Insurance Co. supra, it would be necessary to exclude from consideration the words “my real property which I do now possess or may possess at .the time of my death,” and to reject the inference connected therewith from the reference to the recorded deed of the farm in question, which shows that his real property consisted only of an undivided interest therein. Indeed not a shadow of resemblance could be made between that ease and this, were it not for the words “containing at the present time the homestead of 51% acres, more or less.” These words, however, are themselves equivocal, and taken in connection with the other words of the sentence, “I give and devise all my real property which 1 do now possess,” they are made still more equivocal, and the only consistent interpretation that can be put upon them is that the testator meant and intended to say ‘ ‘ contained in the homestead, ’ ’ instead of ‘ ‘ containing’ ’ the homestead. At all events it is impossible to say that the testator clearly intended to devise to his wife her own property— property he did not possess as his own — in using the words of description contained in this item. In one sense he was in possession of his wife’s share of the farm, that is, as tenant in common, but the words “which I do now possess or may possess at the time of my death” do not, and cannot be, held to refer to and include property thus held, because the testator himself limits their application to property owned •solely by himself: “I give and devise all my real property which I do now possess;” and “my executor hereinafter named shall cause all of the said property, my real property above mentioned,” to be sold.

This intent, so unequivocally expressed by the words, to include in the devise only that part of the real property which he himself owned,, should be the controlling factor in the interpretation of this will.

In the case of Melick v. Darling, 11 Ohio 343, the syllabus of the case is:

“To create a ease of election, there must be a plurality of gifts or rights, with an intention, expressed or implied, of the .party who has a right to control one or both, that one should be a substitute for the other.”

It is true that at that time the syllabus was not necessarily the law of the ease, but Wood, J., on page 350 of the opinion in the opening sentence uses the same language.

That was a case in which the testator and the devisee were tenants in common. The language of the will was, page 345, “I also give unto my grandson, Jeremiah Beatty, the southwest quarter of section seven, •township five, range ten.” In the same will provision was made for Abram Darling. The testator and Abram Darling were tenants in common of the southwest quarter of section seven in township ten, devised to Jeremiah Beatty, the patent having been issued to both of them. The court held that it was not the intention of the testator to devise both interests, and that Abram Darling was not required to surrender his moiety in order to retain the property devised and bequeathed to him by the will.

In Rancliffe v. Parkyns, 6 Dow 185, cited in note to Dillon v. Parker, 1 Swanst. 359, 394, Lord Elden said that:

“It is difficult to apply the doctrine of election where the testator has some present interest, in the estate disposed of, though not entirely his own.”

In French v. Davies, 2 Ves. Jr. 578, it is held that before you can prevent the legal right, the intention must be perfectly clear. The intention must be so clear that a judge can say it is impossible the testator could mean the defendant to have both.

Decree for plaintiff, ordering partition of premises as prayed for.,

Laubie, J., concurs;

BURROWS, J.,

dissenting.

I am not able to concur in the conclusion reached by the majority of the court.

If it clearly appears from the will that the testator, Thomas Price, intended and assumed, in the devise of the homestead, to dispose of the= interest of his wife therein, then the petition of plaintiff should be dismissed.

It is not suggested that the election of his widow, Mary L. Price, to take under the will was not duly and understanding^ made or that the-plaintiff stands on any higher or better ground than did Mary L. Price. Hence, the contention is necessarily limited to the question whether, by the terms of this will, Thomas Price made a disposition of the entire homestead consisting of '51% -acres.

It is held by the majority of the court that a doubt may be entertained as to'the meaning of the language: “I give and devise all my real property which I do now possess or may possess at the time of my death, containing at the present time the homestead of 51% acres, more or less, recorded;”'etc., and that" this language is consistent with an intention to devise only a two-thirds undivided interest therein, although the testator was and for many years had been, presumably in possession of the whole as the family homestead.

It must be conceded that apt and unequivocal language is employed to designate and describe the entire homestead lot as included in the devise. ITad -the wife been sole owner of it instead of part owner, no question or doubt would exist as to the intention of the testator to make disposition of the lot and the whole of it.

It is said that the use of the words “my real property,” containing the “homestead,” etc., indicates an intention to dispose only of such interest as testator had in the 51% acres. It will be observed, however, that the same phrase is also applicable to the one acre lot and the one-half acre lot of which he was sole owner, and which is also devised in the same item to his wife.

When we consider the evident object and purpose of the testator in making this will, all doubts as to the meaning of the alleged ambiguous words and phrases are dispelled. The testator gave his wife a life estate in all real property which he then had or which he might thereafter acquire including the 51% acres constituting the homestead, upon the express limitation that none of it was to be sold or exchanged by her during her lifetime, and that then, after her death one year, all of “said property” was to be sold by his executor and the proceeds equally divided between the persons who were the natural objects of their mutual bounty.,

No language could have been used to express more clearly the purpose of the testator to keep all of said real estate including the homestead intact, and undisposed of during the life of his wife, and upon her death to have it sold and the proceeds of the entire property equally divided between his children named in the will. The intention and attempt of the testator to make a complete and final disposition not only of his own interest in the real estate described, but of the interest of his wife in tbe homestead, is, I think, clearly and unequivocally expressed. In this state the rule of decision applicable to the facts in such case is mot open to dispute. The case of Hibbs v. Insurance Co. 40 Ohio St. 543, is substantially a duplicate .of the case, at bar in all essential particulars ; and the reasoning and citation of authorities in that case conclusively settle all controverted questions in this case. It is said that the case at bar may be distinguished from Hibbs v. Insurance Co. supra, in respect to the character of the interest of the wife in the homestead, and in the amount devised in lieu of such interests respectively. In the case under consideration, the wife held a joint interest with her husband, while in Hibbs v. Insurance Co. supra, she held separate title in fee to eighty acres of the tract constituting the homestead, and in both cases the whole tract must pass, if at all, under the general designa-tion “the homestead.” In Hibbs v. Insurance Co. supra, some importance is attached to the circumstance that the land of the wife was so situated and occupied that a “careful survey” would be necessary to determine and mark the boundary between the lands of the husband and wife; and the inference is apparently drawn from this circumstance, that there conld be no just inference of intention on the part of the testator to devise under such designation only a part of the whole tract that constituted the homestead. If an obliteration or removal of the lines of demarkation are important upon the question of intention, then surely the impossibility of making any lines of demarkation, as in the -case at bar, must be equally important. As to the other alleged distinguishing particular between the cases under consideration little need be said. That more ample provision was made for the wife in lieu of Iher interest in the homestead in Hibbs v. Insurance Co. supra, cannot .change the rule of decision; besides it is not apparent from the record that there was any disparity in this respect. In the case at bar the testator gave his wife a life estate in two other lots, the value of the use -of which may have far exceeded her interest as widow- in the estate of her husband and the value of her interest in the homestead. In respect to these two particulars and these alone, attempt is made to distinguish the ease at bar from Hibbs v. Insurance Co. supra, and I am compelled to say that in my opinion the authority of Hibbs v. Insurance Co. supra? has been ignored rather than distinguished in the decision of this ease.

The conclusion reached by the majority of the court is avowedly placed upon the later case of Charch v. Charch, 57 Ohio St. 561. In that case the court found that it affirmatively appeared that the testator did not intend to dispose of the certificate made payable to his wife, and that under the circumstances the language of the will was only applicable to other certificates held by the testator. The learned judge in his opinion approves of the decision of ílibbs v. Insurance Co. supra, in respect to its conclusions of 'fact as well as law, and points out the dissimilarity between the eases.

The case of Melick v. Darling, 11 Ohio 343, is also cited by plaintiff in support of his contention. The correctness of the decision in Melick v. Darling, supra, may be doubted since it was made by a divided court-judge Wood who gave the opinion said “the case is not so clear that he who runs may read.” But, if correctly decided, it is an authority for the defendant rather than the plaintiff. The decision is not placed on a want of clearness in the language by which the southwest quarter of section seven is devised to Jeremiah Beatty, nor on the fact that the testator held this quarter section as tenant in common with another, but solely on the ground that the “general design” of the testator as evinced by the whole will, was to make an equal distribution of his property to each class of heirs. The two grandsons, William and Jeremiah Beatty, each were given a quarter section of land; but to William he gave an undivided half, while to, Jeremiah he gave a quarter section in which he also held an undivided half interest. To give one double whát he gave the other was in conflict with the general scheme of the will; and therefore a majority of the court vras of the opinion that it was not clear that he intended to dispose of the interest of his cotenant in the quarter section devised to Jeremiah.

In the case at bar the general scheme and design of the will is in accord with the terms of the devise by which the entire homestead is disposed of, and is not consistent with any other interpretation.

The suggestion of counsel in their brief in Melick v. Darling, supra, that the doctrine of election should not be applied where the testator has some interest in the property' devised, was not noticed by the court in the decision of that ease, and has no support from any decision in this state.

Finally it is said that the doctrine of election in such cases is a. harsh one. It would in my judgment be a more harsh and unjust doctrine to hold that a devisee to whom a gift has been made, on condition that he surrenders certain of his own property to the disposition of the . devisor, should be allowed to receive the gift and repudiate the condition.


source: Caselaw Access Project

author: CALDWELL, J.

license: Public Domain

text:
    ATTACHMENT AND GARNISHMENT — EVIDENCE.
    [Summit (8th) Circuit Court,
    October Term, 1901.]
    Caldwell, Hale and Marvin, JJ.
    Goodyear Tire & Rubber Co. v. Rubber Tire Co.
    Evidence .Sufficient to Sustain Attachment.
    Evidence showing that a defendant corporation, in order to financially em barrass the plaintiff, bought of it a very large amount of goods, refused to pay for the same, and at the time suit in attachment was brought ■against it, was about to turn nearly half of its stock into debenture bonds which authorized the holder thereof to seize the assets of the company -upon short notice, thereby creating an indebtedness that did not exist when the goods were bought, and which would prevent plaintiff from collecting any judgment it might recover, is sufficient to sustain an attachment upon the goods of defendant.
    Error to Summit common pleas court.
    Slabaugh & Seiberling, for plaintiff in error.
    Musser & Kohler, for defendant in error,
   CALDWELL, J.

The Goodyear Tire & Rubber Company sued the Consolidated Rubber Tire Company and sued out an attachment. Motion was made to dissolve the attachment and was granted, and error prosecuted to this court, and that branch of the ease only is here.

This attachment was sued out on the ground that this debt was contracted without any intention of paying it, and that the defendant was disposing of its property. The facts are these s There is evidence tending to show that the defendant in error was buying goods of the plaintiff, and that they called a salesman to know how much of a loss the plaintiff could stand. He told them he thought $50,000 or $75,000 would stagger them — words to that effect. The orders immediately increased to a large amount, and they did not pay for them, and this suit is brought to get pay out of the defendant, and this attachment is sued out. There is other evidence tending to show that it was the purpose of the defendant, in buying these goods, to buy a very large amount (as it did), and refuse to pay for them and keep the plaintiff from obtaining the money, and putting it in financial embarrassment, if not breaking it up. This is not the only evidence. This is one of those cases where the evidence must all be put together.

The defendant is a corporation, and it has, if I remember right, over some four millions and a few hundred thousand or a few hundred dollars of common stock, and nearly the same amount of preferred stock. About this time the company got up a plan and was about to put it inte execution, when this suit was brought and this attachment sued out ta turn a large amount, nearly half of that stock, into debenture bonds; and the plan, as it is in evidence in the record, shows that the persons who should hold them, who would be the stockholders, would thus be turned into creditors, so that they could pounce upon this company at anytime with a very short notice whenever such and such things occurred; and those things were of such a nature that a claim could be set up and established at any time — established if the company and these new creditors were in league together to defeat the lawful creditors of the company, thus creating an indebtedness there that did not exist when they bought these goods. The purpose was to create an indebtedness, of over three millions of dollars to permit the creditors to seize the assets of the company at any time.

Now, in considering this case, it won’t do to consider what this company did by way of buying goods and not intending to pay for them— to consider that entirely separate from the other. Was it carrying on a fraudulent purpose í It was all one purpose, we think, in this testimony —just one purpose, and the purpose consisted of, perhaps, three, steps r We will buy an enormous amount of goods; we will refuse to pay; we will put ourselves into such shape that they never can collect if the plaintiff' gets judgment. Now, those three steps all constitute oné; as the motive was one; the purpose was one; and by dividing it up it can be applied, or, taking it as a whole, it should be applied to see whether the company was buying without intent to pay, and whether it was making a disposition of its property to defraud this plaintiff.

You may take this whole plan, together with what they said as to the purpose of the company in creating this debt, and in running it along and in ordering goods to several times the amount of business that it had been doing, or was expecting to do, and thus running up a debt suddenly and as. quickly as possible, and then getting itself in shape so that the plaintiff, if it recovered judgment, could not collect it, and we think this evidence was sufficient to hold this attachment, and that the court erred in dissolving the attachment.

The judgment is reversed and the case remanded for further proceedings.

Hale and Marvin, JJ., concur.


author: JELKE, J.

text:
    REPAIR OF A TURNPIKE AS REQUIRED BY ORDINANCE.
    [Hamilton (1st) Circuit Court,
    January 22, 1904.]
    Giffen, Jelke and Swing, JJ.
    Milford (Vil.) v. Cincinnati, Milford & Loveland Trac. Co.
    1. Equity may Require Performance of Franchise Conditions by Mandatory Injunction or Specific Performance.
    While, as equity never decrees a forfeiture, injunction cannot be employed to woyk an ouster or to forfeit a franchise, nevertheless a court of chancery may, by mandatory injunction or decree for specific performance, require the performance of the conditions under which a corporation exercises a franchise.
    2. Court Will Decree Specific Performance Notwithstandino Necessity of Continuing Supervision, When. '
    Although a court should he slow to enforce, by mandatory injunction ór " specific performance, the performance of the conditions under which a corporation exercises a franchise because of the continuing supervision which the enforcement of such an order or decree would entail upon the court, nevertheless this is not a conclusive obstacle, and when public rights are. involved, a court of chancery will not shrink from the maintenance, through its duly appointed officer, of such continuing supervision as is necessary to preserve the rights of the public.
    S. “Repair” of Turnpike Means What.
    The word “repair” as used in an ordinance stipulating that a given turnpike shall be “put in repair from gutter to gutter” does not mean a new road made to a new grade, but it does mean a filling of all the holes and an evening up of the surface so that the ordinary and expected travel of the locality may pass with reasonable ease and safety.
   JELKE, J.

We find on the evidence that the Cincinnati, Columbus & Wooster-Turnpike through the village of Milford is not in the condition of repair required by the third section of the ordinance of August 4, 1903, and that the Cincinnati, Milford & Loveland Traction Company, defendant herein, is in default in this regard, and has failed in the performance of this condition of its franchise.

Injunction cannot be resorted to, to work an ouster or to forfeit a franchise. Equity never decrees a forfeiture. A court of chancery may, however, by mandatory injunction or decree for specific performance require the performance of the conditions under which a corporation exercises a franchise.

The difficulty about such an order or decree in this case is the continuing supervision which its enforcement would entail upon the court.

This objection only furnishes one more reason why a court of chancery should be slow to intervene, but is not a conclusive obstacle, and when public rights are involved a court of chancery will not shrink from the maintenance, through its duly appointed officer, of such continuing supervision necessary to preserve the rights of the public. See Pomeroy, Contracts p. 31, n. 1, citing Joy v. St. Louis, 138 U. S. 1 [11 Sup. Ct. Rep. 243; 34 L. Ed. 843], and other eases. In the case at bar there is excuse for defendant’s dereliction in that the weather has made it impossible to dp this kind of work since Thanksgiving day.

There is also another reason why defendant should not at this time be enjoined in that it is under contract in its franchise to have its cars in operation by March 3,1904.

An injunction as prayed for will be denied, but under plaintiff’s general prayer for equitable relief the court will order defendant company to put said road in the repair required by the ordinance, that is,

* ‘ cause said turnpike to be put in repair from gutter to gutter with number two broken stone” by March 31, 1904.

There can be little or no sincere doubt as to what “repair” here means. It does not mean a new road made to a new grade, but it does mean a filling of all the holes and an evening up of the surface.

“To keep a street in repair is to have it in such state as that the ordinary and expected travel of the locality may pass with reasonable ease and safety.” McMahon v. Railway, 75 N. Y. 231, 236.

The condition of the ordinance is plain and defendant manifestly up to now has not lived up'to it. Defendant is not expected to repair the damage caused by the waterworks commission.

If defendant company cannot understand what to do under the ordinance and the foregoing, the court will appoint its own supervising engineer to direct the work.

Giffen and Swing, JJL, concur.


author: COOK, J.

text:
    CRIMINAL LAW — COURTS—OFFICE AND OFFICERS — MAGISTRATES.
    [Belmont (7th) Circuit Court,
    June Term, 1904.]
    Laubie, Cook and Burrows, JJ.
    State of Ohio v. William T. Hance.
    1. Jtjeisdiction or President or Council as Acting Mayor of Village.
    The president pro tem of a village as acting mayor, under Sec. 1536-864 (4 ed.) Rev. Stat. (96 O. L. 83, Sec. 200), has no jurisdiction to hear and determine a misdemeanor.
    2. Circuit Court Cannot Reverse Judgment Discharging Accused in Criminal Case.
    The circuit court has no jurisdiction to hear a petition in 'error filed by the state in a criminal case to reverse the judgment of the court of common pleas, discharging the accused.
    ERROR to Belmont common plea's court.
    Smith & Howard, for plaintiff in error:
    The president pro tem, as acting mayor, is an officer de facto, and his decisions cannot be collaterally impeached. State v. Gardner, 54 Ohio St. 24 [42 N. E. Hep. 999; 31 L. E. A. 660]; Strang, Ex parte, 2'1 Ohio St. 610; Gitsky v. Newton, 9 Circ. Dee. 682 (17 E. 484) ; State v. Bingham, 7 Circ. Dec. 522 (14 E. 245).
    The municipal code conferred judicial power upon the president pro tem of the council as acting mayor. Section 1831 Eev. Stat. as amended 95 O. L. 354; Sees. 1536-773a, 1536-854, 1754 Eev. Stat.
    E. T. Petty, for defendant in error:
    Section 200 of the new municipal code merely undertakes to clothe the president pro tem of the council with power to perform the executive, and not the judicial duties of the mayor, in the.cases referred to in said section.
    The powers of municipal corporations are classified by the new code under three different heads; executive, legislative and judicial. The executive power begins with Sec. 128, the judicial powers with Sec. 190, and the legislative power with See. 193.
    Section 200 is found under the chapter on executive powers, and all the powers referred to therein are purely executive and in no way refer to his judicial duties or powers.
    Section 1837 Eev. Stat. was not repealed by ,the new code, and confers the power to designate some justices of the peace to perform the duties of the mayor during the latter’s .absence or disability.

      While quo warranto is a proper proceeding to try title to office, it. is not the only remedy. France v. State, 57 Ohio St. 1 [47 N. E. Rep. lOil]; ’Flaiatr V. Mansfield‘(Yil.'), 7 birc. Dee. 39' (14' R.’592) ; Heck v. State, 44 Ohio St. 536 [9 N. E.’ Rép. 305]; Lloyd v. Dollisin, 13-23 O. C. C. 571; Logan Branch Bank, Ex paite, 1 Ohio St. 432; State v. MeGehan,, 27 Ohio St. 280; Hatch v. St. Clair, 1 Gire. Dec.'421 (2 R. 163); High,, Extra. Leg. Rem..Sec.-618; State y..Riley. Tp. (Bd. of Ed.) 3 Circ. Dee.. 703 (7 R. 152).
    The legislature’ could, not confer judicial powers upon a ministerial officer. Article 4, Secs. 1; 10, Const.; Logan Branch Bank,- Ex parte, 1 Ohio St. 432, 433, 434.
    Judicial power. State v. Harmon, 31 Ohio St. 250, 259, 260; Musser v. Adair, 55 Ohio St. 466, 472, 473 [45 N. E. Rep. 903] ; De Camp v. Archibald, 50 Ohio St. 618,‘ 624, 625 [35 N. E. Rep. 1056; 40 Am. St. Rep. 692] ; State y. Guilbert, 56 Ohio St. 575, 627, 628, 629' [47 N. E. Rep. 551; 38 L. R¡. A. 519; 60 Am. St. Rep. 756]; France v. State, 57 Ohio St. 1 [47 N. E. Rép. 1041] ; Van Slyke' v. Insurance Co, 39 Wis. 390 [20 Am. Rep. 51] ;■ 8 Cyc; 858;'Gough v. Dorsey, 27 Wis. 119; Wright v. Wallbaum, 39 Ill. 554.
    . The right- of a’ defendant to’ prosecute érror after pleading guilty is sustained in the base of Hogue v. State, 13-23 O. C. C. 567. ■
   COOK, J.

An affidavit was filed before the mayor of the village of Barnesvill© charging the defendant in error, William T. Hance, with unlawfully furnishing intoxicating liquors to a party named in the affidavit within the village of Barnesville, where such furnishing was prohibited under the provisions of the statutes known as the Beal act. When the accused was arraigned he objected to ’being tried before the mayor, for the reason that the mayor was biased and prejudiced; that he had been an eyewitness to the transaction upon which the state relied for conviction, and had expressed an-opinion from such personal observation of the transaction, that the accused was guilty.

Thereupon the mayor Considering himself disqualified, transferred all the papers in the case to the president pro tem of the council of the village, with instructions to hear and determine the case. When the case came ón for trial befor'é the president pro tem'oí the council the accused objected in due form to his proceeding in the case, for the reason that’he had no. jurisdiction in'the matter. This-objection was overruled,"to "which the accused excepted; and in' Order to save the expensé of' a trial he entered'a pléa of guilty' and was 'fined- $75 and costs. The-accused then filed a petition in error in the court of common pleas to> reverse the judgment, assigning as cause for such reversal, that the president pro tem of the council had no jurisdiction of the case. The' court of common pleas on this ground reversed the judgment and discharged the accused. The state now prosecutes error in this court to-reverse the judgment of the common pleas court.

The sole question made is: Had the president pro tem of the council jurisdiction to hear and determine the case upon a plea of guilty? It is claimed that he had; and in support of this claim Sec. 1536-854-(4 ed.) Rev. Stat., (96 O. L. 83, Sec. 200) is invoked. That section,, after providing for the election, term, qualifications and duties of the; mayor, in the second paragraph provides as follows:

“When the mayor is absent from the village, or is unable for any cause to perform his duties, the president pro tem of council shall be acting mayor. In case of the death, resignation or removal of the mayor, the president pro tem of council shall become the mayor and serve for the unexpired term, and until the successor is elected and qualified; and the vacancy thus created in council shall be filled as other vacancies therein, and council shall elect another president pro tem from their own number, who shall have the same rights, powers and duties as his predecessor.”

•Does this provision of the statute clothe the president pro tem of council with authority to hear and determine a case of this character? The affidavit charges a misdemeanor and See. 1824 (1536-876, 4 ed.) Rev. Stat. provides that the mayor of an incorporated village “shall have final jursdiction to hear and determine any prosecution for a misdemeanor, unless the accused is by the constitution entitled to a trial by juryand his jurisdiction in such cases shall be co-extensive with the county. ’ ’ This was a prosecution in which the accused was not, under the constitution, entitled to demand a trial by jury, therefore, the mayor would have final jurisdiction, and it is insisted that the president pro tem of the council, as acting mayor, would have- the same jurisdiction as the mayor.

It will be observed that Sec. 1536-854 (4 ed.) Rev. Stat. (96 O. L. 83, Sec. 200) is found in chapter two, which provides for the executive powers and duties of the officers of the village, and the first part of the section sets forth such duties of the mayor as are primarily ministerial. Chapter three provides for the judicial powers of the mayor and police courts, and in that chapter we find no provision that the president of council, as'acting mayor, shall possess any judicial powers whatever. "Mayors and justices óf tbe peace are elected by the people for the"-purpose of exercising judicial functions to a limited extent. Presidents pro tem óf coürfcils are not elected by the people, but appointed by council to. perform Certain specified duties. The judicial -powers of justicés of the peace to hear and determine criminal prosecutions with jurisdiction coextensive with the county, is a high -prerogative, and we 'do not think a member of council, who was not elected with any expectation that he would perform such important judicial functions, shoiild be held to be clothed with such power, unless the statute expressly so provides; and that all that was intended by the provision was, that in the absence of the mayor from the village, Or his inability for any cause to perform his duties, the president pro tem of council should then be noting mayor and discharge the ministerial duties of that office.

In Sec. 1837 (1536-773a, 4 ed.) Rev. Stat. it is provided that “in .<clties having no police judge, in the absence or during the disability of the mayor, he may designate a justice Of the peace to perform his duties in criminal matters, which justice shall, during the time, have the same -power and authority as the mayor.” We are not prepared to say, ás (Claimed by counsel, that this provision applies to villages. This provision, however, should have some effect in construing the section under consideration. The president pro tem of council of cities has the same powers as in, villages, when the mayor is disqualified from acting. The provisions as to cities and villages are very similar. Section 1774 (1536-664, 4 ed.) Rev. Stat. Why, then, should'the mayor of a city be required to call in a justice of the peace, in a city having no police ' judge, to perform his duties in criminal cases? Thé president pro tem of council could perform the duties as well in cities ‘as villages, but in cities he is deprived of that power. From these considerations We are persuaded that the president pro tem of a council of a village has not jurisdiction to hear and determine a prosecution for a misdemeanor.

This view is strengthened by the decision in case of Logan Branch Bank, Ex parte, 1 Ohio St. 432. On page 434 Judge Corwin says:

“It is not within the competency of the legislature to clothe with judicial power any officer or person, not elected as a judge.”

We aré not unmindful of the fact that police judges may be ‘appointed by council, and justices of 'the 'peace mky be appointed by the trustee's of the township to fill out unexpired terms, but they are appointed for the express purpose of exercising -judicial powers and by express authority of the general assembly.

We have said this much for the reason that'this was the 'only pilestion made in the case. However, this was entirely unnecessary,. as this court has no jurisdiction in this proceeding in error. The action, of the court of common pleas was a complete and final determination of thp case in favor of the accused. It held, as we have said, that the president of council as acting mayor had no jurisdiction, and discharge^ thp accused. That ended the case. Error cannot be prosecuted by th,e state from a judgment of a court having jurisdiction of a criminal case where the accused is discharged, in the absence of statutory authority for such proceeding. State v. Simmons, 49 Ohio St. 305 [31 N. E. Rep, 34]; State v. Bour, 4 Circ. Dec. 4 (10 R. 58).

There is no warrant in the statutes for such prosecution of error bj the state, and the petition in error will therefore be dismissed for want of jurisdiction in this court, at the costs of plaintiff in error.

Laubie and Burrows, JJ., concur.


text:
    ALIENS — STATUTES—DEATH.
    [Jefferson (7th) Circuit Court,
    May Term, 1904.]
    Laubie, Cook and Burrows, JJ.
    J. Oscar Naylor, Admr. v. Pittsburgh, C. C. & St. L. Ry.
    1.. Nonresident Aliens Entitled to Benefits Conferred by Secs. 6134, 6135 Rev. Stat. .
    Nonresident aliens are entitled to the benefits conferred by Secs. 6134, 6135 Rev. Stat., and an action may be maintained for their, benefit, for negligently causing death in this state.
    2. Citizens of Italy Have Right of Action in Ohio fob "Wrongful Death.
    Under th'e treaty between the United States and the Kingdom of Italy, ratified November 18, 1871, citizens of that kingdom haye the same right to enforce a claim in this country respecting property as o.ur own c(tiz;ens, and á claim in favor of next of kin for negligently caúsing death in 'this state is a property right.
    Error to Jefferson common pleas court.
    A. C. Lewis, Golcfzier, Rodgers & Froelich and D. M. (frqfier, for plaintiff in error:
    Alieps are entitled to the benefit of- statutes providing fpr Recovery for, death by wrongful act. 2 Cyc. 10.8; Mnlhall y. FaUpn, 176 Mas?,. 266 [57 N.'e. Rep. 386; 79 Am. St. Rep. 309] ; Yetaloro v.'Pprldns, íoí Red. Rep. 393; Luke v. Calhoun Co. 52 Ala. .115; Augusta fity. v„ G[ov.er, 92 Ga. 132 [18 S. É. Rep. 406, 413]; Philpott y. Railway,. §5 Mo, 164.; Kellyville Coal Co. v. Petraytis, 195 Ill. 215 [63 N. E. Rep. 94; 88 Am. St. Rep. 193]; Baker v. Portland, 5-Sawy. 566 [2 Fed.-Cas..472] ; Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1, 211 [6.L. Ed...23].. .
    The right of action under Sees. 6134, 6135 -Rev-. Stat is “property.” Wabash, St. X/. & P. Ry. v. Shacklett, 10 Ill. App. 404; Wabash, St. L. & P. Ry. v. Shacklet, 105 III. 364, 382; Goltra -v. -People, 53 Ill. 224, 225; Pritchard v. Norton, 106 U. S.-124, 132 [1 Sup. Ct. Rep. 102; 27 L. Ed. 104]; Hartfprd- & N. H. Ry. v. Andrews, 3.6 Conn.. 213, 214, 215.
    A right of action is a sufficient, asset, or.property, upon which to found administration in a county where' service can be had upon the defendant. Morris v. Railway, 65- la. 727 .[23 N. W. Rep. 143; 54 Am. Rep. 39]; Mo. Pac. Ry. v. Bradley, 51 Neb. 596 [71 N. W. Rep. 283]; Bruce v. Railway, 83 Ky. 174; Brown v. Railway, 97 Ky. 228, 230-, 232 [30 S. W. Rep. 639]; Findlay v. Railway, 106 Mich.- 700, 702 [64 N. W. Rep. 732]; Hutchins v. Railway, 44 Minn. 5, 6 [46 N. W. Rep. 79]; Boston & M. Ry. v. Hurd, 108 Fed. Rep. 116, 123, 124 [47 C. C. A. 615]; Wabash, St.'L. & P. Ry. v. Shacklett, 10 Ill. App. 404; Wabash, St. L. & P. Ry. v. Shacklet, 105 Ill. 364, 382; Goltra v. People, 53 Ill. 224, 225.
    Article 3 of the treaty between Italy and the United States, concluded February 26, 1871, provides, that “the citizens of each of the high contracting parties shall receive in the states and territories of the other most constant protection and security for other persons and property, and shall enjoy in this respect the samé rights and privileges as are or shall be-granted to the natives on their submitting themselves to the conditions imposed upon the natives.” Senate Exec, documents, Vol. 1, part 2, page 581, 48 Cong., second session.
    The constitution, laws and treaties of the United States are as much a part of the law of every state -as its own local laws and constitution. Article 6, U. S; Const.,; Hauenstein v. Lynham, 100 U. S. 483 .[25 L. Ed. 628];-Worcester v. Georgia, 31 U. S. (6 Pet.) 515, 575 [8 L. Ed. 483]; Owings v. Norwood, 9 U. S. (5 Cranch) 344 [3 L. Ed. 120]; Vare v. Hylton, 3 U. S. (3 Dali.) 199, 236 [1 L. Ed. 568]; 26 Am. & Eng. Enc. Law (2 ed.) 544, 557; Underhill, Evidence (Civil) Sec. 242; see Rice, Evidence; Adams v. Akerlu, 168 Ill. 632 [48 N. E. Rep. 454]; Scharpf v. Schmidt, 172 Ill. 255 [50 N. E. Rep. 182]-. ■
    ■The plea of. alienage ■ is discouraged in England, and., the-United States and is .a.-defense .not favored in the law. 1 2 Cyc.--107, -n. 89; p. 108; Denniek-v.:Railway, 103'U,-S!. 11, 13 [26 L: Ed.-439] -; Stewart v. Railway,- 168 TL U.-445,, 448; [IKSup.. Ct- Rep. 105; 42 L. Ed. :537]j •Handy'v. Insurance Co. 37-Ohio-St. 366,'370. ■

      Dunbar & Sweeney, for defendant in error.
   COOK, J.

The action below was to recover for negligently causing death of Bassillo Marino. The deceased was a native of the Kingdom of Italy, and had been but a short time in the state of Ohio, working for defendant in error but a few days. At the time of his death he had a wife and two children residing in Italy, and who still reside there. Defendant in error in the court below set up as a second defense in its answer, that the beneficiaries on whose behalf 'the action was prosecuted, were nonresident aliens, being residents of the Kingdom of Italy. To this defense a general demurrer was filed, which the court overruled, holding that it was a complete defense to the action, and the petition of plaintiff was dismissed.

The question and only question made upon error is: Can an action be maintained for negligently causing the death of a person in this state, where the beneficiaries are nonresident aliens?

This question has been determined differently in the different states, and from the decisions it would seem that it has been differently determined in England, where liability for negligently causing death was first created by statute, and that this question is not yet settled there.

The authorities being antagonistic, it becomes necessary to determine the question largely on principle, .giving to the decisions of the different states that consideration to which they seem to us to be entitled, and following those that we consider most in consonance with reason and correct principle.

Most of the difficulty arises from the difference of opinion existing as to the manner of construing the acts of the different states, fashioned after Lord Campbell’s act. Some eminent courts have held that such statutes, being in derogation of the common law, should be strictly construed, while others, particularly the Supreme Court of the United States, have held that they are remedial in their nature and therefore should be liberally construed.

This court followed the holding of the Supreme Court of the United States in the case of Schell v. Iron Sheet & Tube Co. 26 O. C. C. 209, where the authorities are referred to.

Keeping in view that' the purpose to be accomplished by these statutes is primarily to get.rid of a maxim ol the common law, regarding the surviving of personal actions and the comprehensiveness of pur.own statute’ it would seem ihat there ought not to be a .difference of opinion upon the question; and yet the courts of some of the states, with statutes as broad as our own, have held that nonresident.aliens can derive no benefit from this statute.

Section 6134 Rev. Stat. is very general. .It. provides:

‘ ‘ Whenever the death of a person shall be caused by wrongful act, neglect or default,. and the a.ct, neglect or default is such as. would (if death had not, ensued) have entitjed the party injured to maintain an action and recover damages in respect thereof, then and in every such case the corporation which, or the person, who. would have been liable if death had not ensued, * * * shall be liable to, an action for damages, notwithstanding the death of the person injured;” that is to say, the corporation or person shall be liable in damages in the same manner as if death had not ensued, and if the person or corporation is to. be liable in the same manner as if death had not ensued, how can it be said that this language is not sufficiently comprehensive to include nonresident aliens as beneficiaries?

Section 6135 Rev, Stat. is as follows:

“Every such action shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused. ’ ’

There is no question as to the liability of the person or corporation if death'had not ensued, and the same liability by express language of the statute attaches in case of death, the manner of proceeding and the parties to be benefited being fully provided for. To hold that such actions cannot be maintained for the benefit of nonresident aliens, it seems to us, would he a partial nullification of the statute.

The case of Deni v. Railway, 181 Pa. St. 525 [37 Atl. Rep. 558; 59 Am. St. Rep. 676], is the initial case holding to the restrictive rule and is the case generally relied upon in all the states that hold that an action cannot be maintained for the benefit of nonresident aliens. The syllabus reads:

“Under the act of April 26, 1855, P. L. 309, which gives a right to recover damages for an injury causing death, a nonresident alien mother has no standing to maintain an action against a citizen of the state of Pennsylvania to recover damages for the death of her son.”

It must be conceded that the statute of Pennsylvania is, in all essential particulars, the same as the statute of our own state. In that state the action is prosecuted directly in the name of the beneficiaries, while in our own ah administrator is appointed who prosecutes the suit for the benefit of the beneficiaries; but these distinetions are unimportant!

We are not impressed with, the reasoning of * the learned judge who delivered the opinion of the court in that case. He says, pagé 55.9:

“Our statute was not intended to confer upon,nonresident aliens rights of action not conceded to them or to us by their own country, or to put burdens on our own citizens to be discharged for their benefit. It has no extraterritorial force, and the plaintiff is not-within the purview of it. While it is possible that the language of the statute may admit of a construction which would include nonresident alien husbands, widows, children, and parents of the deceased, it is a construction so obviously opposed to the spirit and policy of the statute that we cannot adopt it. A nonresident defendant is not entitled to the benefit of our exemption laws, although the language of these laws may admit of a construction which would include him. It has been so held in a number of our cases. In this connection the language of Mr. Justice Sterrett in Collom’s Appeal, 2 Pennypaeker 130, is pertinent. In delivering the opinion of the court, he said: ‘While nonresident debtors may, perhaps, be within the letter of the act, we do not think they are within the spirit. As was said by Mr. Justice Woodward in Yelverton v. Burton, 26 Pa. St. 351, and afterwards quoted approvingly by the present chief justice in McCarthy’s Appeal, 68 Pa. St. 217, we do not legislate for men beyond, our own jurisdiction. ’ In one respect, at least, our act of 1855 resembles our exemption laws. It is intended primarily for the benefit of the family of which the deceased was a member. ’ ’

This would seem to be a very close and narrow construction of the statute; and the statement of the learned judge is in some respects inaccurate. His reasoning would seem to make, the case apply to all nonresidents whether residents of the other states of the Union or of foreign nations.. He says the statute “has no extraterritorial force.” That-is in direct conflict with the holding of the courts in nearly all the states and of the Supreme Court of the United States. See cases cited in Schell v. Iron Sheet & Tube Co. supra. Indeed, the courts of Pennsylvania enforce the statutes of the different states upon this subject. Knight v. Railway, 108 Pa. St. 250 [56 Am. St. Rep. 200]. Again he says “we do not legislate for persons beyond cur jurisdiction.” That is not ip accord with the generally accepted doctrine. As was said by Mr. Chief Justice Holmes, now of the Supreme Court of the United States, in Mulhall v. Fallon, 176 Mass. 266, 268 [57 N. E. Rep. 386, 387; 79 Am. St. Rep. 309]:

“It is true that legislative power is territorial, and that no duties can. be imposed by statute upon persons .who are within the limits of another state. But rights can be offered' to si^eh persons, and if, as is usually the ease, the power that -governs them 'makes no- objection, there is nothing-to" hinder their accepting what is offered.

Our'Supreme Court has-repudiated the doctrine of Knight v. Railway, supra, on the reasoning therein contained, that nonresident debtors are not entitled- to'the benéfit-of- our exemption laws under the general terms contained in the statute where there are no express words extend-' ing their benefit to nonresident debtors. In Sproul v. McCoy, 26 O. S. 577, it was held:

‘ - The exemptioná from execution or sale allowed to ‘every person who has a family,’ finder the1 provisions of the act of April 16, 1873 (70 O. L. 132), may be claimed'.by any-debtor against whom" an action is prosecuted in the courts of this state, whether such debtor be or be not a resident of this state.”

In Mulhall v. Fallon, supra, Mr. Chief Justice Holmes, after referring to-the different cases on the-subject, further says:

“The question, then, becomes one of construction, and of construction upon a point upon which it is probable that the legislature never thought when they passed the act. In view of the decisions to which we have-referred, we lay on one side,-as too absolute some expressions which are to be found in the English cases, some of which are Cited in Adam v. Steamship Co. 79 Law T. (N. S.) 31. Our different relation to our' neighbors politically and territorially, is a sufficient ground for a more' liberal rule, * * *
“One-or two cases may be found where a general grant of a right of action for wrongfully causing death has been held to confer no rights upon nonresident aliens. Deni v. Railway, 181 Pa. St. 525 [37 Atl. Rep. 558]; Brannigan v. Mining Co. 93 Fed. Rep. 164. But compare Knight v. Railway, 108 Pa. St. 250. On the other hand, in several states the right of the nonresident to sue is treated as too clear to need' extended argument. Philpott v. Railway, 85 Mo. 164, 167; Chesapeake, Ohio & S. W. Ry. v. Higgins, 85 Tenn. 620, 622 [4 S. W. Rep. 47]; Augusta Ry. v. Glover, 92 Ga. 132, 142, 143 [18 S. E. Rep. 406]; Luke v. Calhoun Co. 52 Ala. 115; 118, 120.
“Under the statfiteythe action for death without conscious suffering takes-the--place -of an action that would have been brought by the -employe himself'if the*harm'hád beén less, and by his representative if it had been equally j?reat, but the death had been attended"with pain. Stat/ 1887,-C.''270; See. 1;" Cl. 3: Tn the latter' ease tlreré would-be no exception to the'Mght'Of re'covery if-the 'next’of'-ldn‘were nonresident aliens.- It. would be .strange .to -read an exception-into general words when the wrong is so near identical, and when the different provisions are part of one scheme.”

The first paragraph of the syllabus of this case is:

.“A statute cannot impose duties, upon a nonresident -alien, but it mgy confer rights upon him. ■ Statute 1887, C. 270, ’ Sec. 2, confers a right to sue upon the next of kin,--who-is a nonresident alien; ”

From the foregoing considerations we- are of opinion that nonresident aliens are entitled to the benefit of our statute.- 'Our relations'with foreign countries, like the relations between thé states, are now too close to put a construction upon a statute of such character,' not necessarily required-by’settled rules of construction.- We should also take into consideration, in arriving at the intention of the legislature when it -enacted this law,- and the various amendments, the condition of business -and,the population of our state. Large numbers of foreign'citizens were ■employed upon our railroads, -in our manufactories and -industries, who lad dependent relatives in foreign lands. Can it be supposed that it was th.e purpose, and Intention of the legislature to -discriminate 'against these foreign dependents ? If so, it- would be -an act not only unjust and unconscionable, but would be placing a .premium upon the employment «of foreign labor to the exclusion of our-own citizens. ■ -It would be saying to employers of labor, “employ-a foreigner and, in the event of his ■death by negligence, you are not responsible; employ a citizen and,- upon lis death, under the same circumstances, you will be responsible.” To so hold would be imputing to the general assembly an intent to make a narrow and unjust discrimination.

There is another reason Why the'sustaining of the demurrer to the second defense was clearly wrong. The widow and children of the decedent were, subjects of the Kingdom of Italy. With that country and the United States there are treaty obligations, and the federal constitution provides in Par. 2, Art. 6:

“This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. ’ ’

The treaty, in article three provides as follows:

“The citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant protection. and security for their persons and property, and shall enjoy in this-respect the same rights and privileges as are or shall be granted to the-natives, on their submitting themselves to the conditions imposed ,by the-natives. ’ ’

The widow and children of Basslllo Marino have submitted themselves to the >conditions imposed upon the natives of this country and state. They have had an administrator appointed upon the estate of their deceased husband and father; they have come regularly into our courts, meeting all requirements of our practice and ashing that they have the same rights and privileges as our own citizens. Can we say, in the light of this treaty, that they shall not have and receive the same-consideration and rights as any person within the state ? We think not.. It is very doubtful if a statute, could be enacted by our legislature, discriminating against the residents of the Kingdom of Italy as to property,, and it is unnecessary to cite cases to show that such a claim as these-Jiext of kin assert in this action, is property. If the legislature did make-such discrimination, the courts could not enforce it, for the reason that it would be against the supreme law of the land. However that may be,, this treaty was ratified November 18, 1871, and our statute lias been, amended several times since that date and it is hardly to be supposed that the general assembly would continue to legislate in direct antagonism to this treaty; but on the contrary, the presumption is that the-intention was that the broad language used in Secs. 6134 and 6135 Rev.. Stat. should include nonresident aliens as well as residents of our own state.

The judgment of the court of common pleas will be reversed, with; instructions to sustain the demurrer to the second defense, and for further proceedings.

Laubie and Burrows, JJ., concur.


author: NORRIS, J.

text:
    ASSESSMENTS — NOTICE—INJUNCTION.
    [Auglaize (3rd) Circuit Court,
    April 23, 1904.]
    Mooney and Norris, JJ.; Day, J., absent.
    Grant Taylor et al. v. Wapakoneta (Vil.) et al.
    1. Council may Construct Tile Drain as Part of Street Improvement, When.
    As the power granted by the General Assembly to municipal corporations to build streets also includes the power to do the things necessary to accomplish that purpose, even though the council might do some of the things thus done under the other laws and by other methods, s village council is not required to take separate action by separate petition under other sections of the statute to construct a tile drain as part of a street improvement, even though it was not specifically requested in the petition for the improvement, nor specifically declared necessary in the resolution, nor specifically provided for in the ordinance, when the construction of the drain was necessary in order to effectuate and complete said street improvement.
    2. Construction of Tile Drain not Separate and Distinct Improvement When.
    The construction of a fifteen-inch tile drain along a street improvement is not a distinct and separate improvement when it appears that the construction of said drain effectually accomplished the purpose of draining the street and roadway and cost no more than if said street and roadway had been drained by some other customary method,of street drainage.
    S. Advertisement for Bids for Street Improvement not Misleading, When.
    An advertisement for bids for á village street improvement which directs prospective bidders desiring to see the plans and specifications of the proposed improvement to the office of the “city engineer” was in no wise misleading, although there was no such legally chosen officer in the village, when, it being necessary that a person qualified to make such plans and specifications be selected, a person so qualified was ■ appointed, who had been acting as village 'engineer for many years by appointment of the council With an officer in the office of the county surveyor, and these facts were matters of common knowledge in said village and vicinity.
    4. Collection of Street Improvement Assessment Will not be Enjoined Because of Insufficient Notice, When.
    While the statute is peremptory in its provision relating to advertisement for bids for. improvement of the streets of a municipality, yet when the facts show &at the assessment does hot exceed the benefits conferred upon the property by the improvement, and further, that the party who seeks to enjoin the collection of the assessment had full and legal notice of the filing'of the petition for the improvenient, the action of the council upon it, that the ‘improvement was to be made, that the cost thereof was to be assessed upon the abutting property, and was cognizant of each step taken to accomplish the improvement, and Stood by and allowed the improvement to be made and the money to be expended in payment for it, without objection taken by legal proceeding; the fact that the village clerk failed to advertise for bids "for the period of four weeks after the ordinance providing for the improvement went into effect, as required by law, does not warrant a court of equity in behalf of such party to restrain the collection of that part or portion of the assessment against his property, which is not shown to be in excess of the actual benefits directly resulting to the property from the improvement.

      5. COLLECTION OE STREET IMPROVEMENT ASSESSMENT WILL BE ENJOINED UNTIL, Improvement is Completed.
    Where it appears to a court of equity that a street improvement as to some of the property abutting thereon is not properly completed, so that water from an intersecting street cannot reach' the improved portion and thus pass off, but is dammed up, making an unsightly and unhealthful mudhole, the collection of an assessment for such' improvement will be enjoined until the defective condition complained of has been remedied without further expense to the abutting property own,er.
    Appeal from Auglaize common pleas court.
    W. E. Detweiler and F. M. Horn, for plaintiffs.
    Roy E. Layton, for defendants.
   NORRIS, J.

This ease comes into this court, on áppeal and is submitted upon the second amended petition, the answer thereto and the evidence. The action is to enjoin the collection of, amount for street improvement.

The plaintiffs, sixteen in number, each of them own lots abutting on Bast Auglaize street in this village. The method of assessment is by tbe foot front. They claim as reasons for enjoining the assessment:

1. That the council passed no resolution finding and decreeing the necessity of the improvement of the roadway.

2. The council passed no ordinance ordering and providing for the improvement of the roadway.

3. That as a part of said assessment is the cost of constructing a main sewer for a large sewer district, and as the council passed no resolution declaring the necessity of the construction of the sewer, and passed no ordinance providing for and ordering the building of said sewer, the action and proceedings of the council concerning the necessity for the improvement of said street, and the making of said sewer, and. providing for and ordering the improvement of the roadway* and the building of the sewer, are illegal and void for the reason that such resolution and such ordinance each contain two separate and distinct subjects, and provide for two separate and distinct improvements; that such ordinance provided that the clerk of said village should advertise for bids for making said improvements; that the ordinance" was published for the first time on January 3, 1901; that on the same date and before said ordinance was in force the clerk caused the advertisement for bids to be published and the same was published thereafter in four consecutive issues-of two newspapers published in said village, thus publishing said "advertisement only three times after such ordinance was in force, and that the bid of the contractor to whom said work was awarded was made in response to "such advertisement.

It was stated- in- said • advertisement -that 'the ‘-specifications -and plans for said - improvement -were ‘on file -in--.the office of-- the village engineer, when in fact'there was no such office or officer of said village, and that the contract and the performance of it for these reasons, in no wise effected to charge the costs of said work on the abutting property of the plaintiffs. - .-

4. The council passed no resolution finding- and declaring- the necessity of said sewer improvement, and‘passed no ordinance ordering- and providing for the construction of it.-' - ■ • . .

5. The village of Wapakoneta is-not situated in á county containing a city of the first- class, and the assent in - writing to levy a Special assessment upon property abutting on said improvement to pay the costs and expenses of the same was not -given by a majority of the owners of abutting-property, and for want of such assent of such ma-jority the council never acquired jurisdiction to levy said special assessment, upon plaintiffs ’ said lots.

6. The levy is without notice to plaintiffs; without opportunity given to plaintiffs to be heard in relation to the validity or amount thereof.

7. The legislative enactment under which the council proceeded, namely, Title 12, Div. 7, Chap. 4 Eev. Stat., are unconstitutional, being-particularly inimical to Sec. 19, Art. 1 of the constitution of this state, and in violation of the fourteenth amendment to the constitution of the United States, because said enactment-invades and violates private property without due process of law.

Plaintiffs say that said assessments should be reduced because.

1. Said street when the improvement was commenced had been, graded to an established grade and drained and graveled, and the .assessment here in controversy greatly exceeds the benefits, and by reason of this said assessment should -be reduced at least $30 as to each lot less than that as made.

2. The report of the board of- appraisers referred to in Sec. 5 .of the ordinance of the council is unfair in this: Lots 878, 879, 880, 881, and 435 were appraised at less than their value, so that under the law limiting assessments to 25 per cent of value, the effect as to these lots as appraised is to throw more than-a fair proportion of the costs of the improvement upon the lots of plaintiffs. • ■

3. That beeause --of.no -resolution finding the necessity, andi no ordinance providing -for the building'of said-sewer, the, council had no authority to assess any -part-of -the expense-incident to said • sewer,.on. plaintiffs’ said lots, and tbat ¡said assessment should be reduced by an amount equal to the expense 'of said setvér c'onstrutítion so assessed.

4. The sewer empties into a tank sewer at Water street and extends to Wood street, consisting of 1,-194 feet of 15-inch sewer pipe; 70 feet of 10-inch sew'er pipe-; 717 feet of 6-ihch sewer .pipe; 46.15 inch T pipe 12 feet 10-inch elbows, 4 manholes, and 15 catch-basins, the total cost of which, including labor, ámotaits to $1,305. No opportunity was given plaintiffs to be heard Concerning the plans and specifications of said sewer, and because of this as another reason, the council acquired no jurisdiction to assess the costs and expenses on the lots of plaintiff.

5. The sewer is larger and is laid deeper in the ground than necessary to drain the lots or the street -and roadway, but is made to drain intersecting streets, and the assessment was arbitrary and without consideration of benefits, and for this reason the amount should be reduced as to- each at least $25. Since the publication of said assessment ordinance, the council conducted from Wood street into said seiver a 12-inch sewer — another sewer 949 feet long'; that this is in fact -a continuation of said Auglaize street sewer, yet no part of the Auglaize street sewer was levied on the lots or lands abutting on Wood street, and for each of these reasons and for all of them plaintiffs seek to enjoin the collection, of said assessment and every part of it, because the same is thus void.

The answer denies the averments of the petition which attack the legality of the assessments, and which are assigned as grounds for the injunction, and the issues thus tendered are upon the evidence submitted to this court on appeal.

The evidence presents these facts: On May -15, 1901, a petition was presented to the council of the village of Wapakoneta, asking for the improvement of Auglaize street from the east rail of the C. H. & D. Ry. track to the west line of Wood street by paving, setting curbing, grading, etc., skid street, and requested that the cost of said improvement be assessed upon the abutting property. Their petition was duly referred tb their 'committee on streets with instructions to ascertain whether or not á majority 'of the property owners to be assessed were in favor of ‘the improvement and desired the council to permanently improve the street. Their 'committee reported that such majority had signed the petition, and the council accepted and adopted the report.

On May 21, 1901, an ordinance was passed to establish a grade on Eást Auglaize street, and bn May 29, 1901, the engineer having been directed in that "behálf, presented to "the council plans and speeificátióhs for pavihg and improving said street and the estimate of cost of said improvement and an outlet sewer at Water street. This report of the engineer and his plans and specifications were approved by the' council.

On June 5, 1901, a resolution was passed by the council, two-thirds of the members concurring, declaring the necessity of the improvement, grading, draining, curbing, paving and otherwise improving said street in accordance with said specification then on file in the office of the engineer, declaring that a majority of the property owners had signed the petition for said improvement, and declaring that a majority of the property owners to be charged with the cost of said improvement, having petitioned in that behalf, the cost of said improvement, less intersections, etc., be assessed per foot front on the lots abutting the portion of said street to be improved, and directing the village clerk to publish the resolution, etc., and appoint Nicholas Schubert to serve legal notices of the passage of the resolution on the owners of property abounding and abutting the proposed improvement and make his return of such service to the council.

Thereupon Schubert made such service vouched by his return and affidavit on all the owners of property abounding and abutting the proposed improvement.

Thereupon on July 3, the council passed an ordinance providing for the improvement in accordance with its aforesaid resolution, the cost to be assesed as aforesaid, fully going into detail in said ordinance concerning the improvement and its kind referring to the specifications and plans therefor and the assessment of the costs and expenses of it, and providing for the issuing of bonds to anticipate the fund to be raised by the assessment.

By Sec. 3 of the ordinance the clerk is directed to advertise for bids.

This ordinance to take effect after its passage and publication according to law.

The ordinance was published July 4, 1901. The notice to contractors inviting bids was published July 4, 11, 18, and August 1, 1901.

On August 16, 1901, the contract for the construction of the work was let.

On April 16, 1902, the assessing ordinance was passed and was published on the twenty-fourth and duly went into effect after its publication.

On April 16, the resolution for the sale of bonds was passed, bids were solicited and the bonds sold. The work having been finished the money was paid out. All the steps leading to. this final completion and payment thus appear from the evidence. And this action is to enjoin the collection of the assessment levied upon the abutting lots of the respective plaintiffs.

The evidence shows that the council did find and declare the necessity of the improvement, and did provide for the improvement by ordinance, and this upon a petition duly presented which bore the signature of a majority of those whose lots abutted upon the proposed improvement, and that these petitioners assented that the cost of the improvement be assessed on the abutting property.

In its proceedings on this petition, and in behalf of the improvement requested by it, all else being regular, it was the duty of the council and the members of that body to exercise good judgment and ordinary business sense, and to do the things necessary to accomplish the object requested by the petition. The improvement must be a permanent improvement in so far as its character imports durability and permanence, and it must be done in a workmanlike manner and without extravagance, and there must be no abuse of discretion either as to its character or its cost.

It was necessary in order to effectuate and complete this improvement to put in a 15-inch tile as was done here even though it were not specifically requested in the petition, and not specifically declared necessary in the resolution and- not specifically provided for in the ordinance, and if independent and without reference to the roadway, and if the surface of the street were not to be improved, this 15-inch drain or sewer would seem to be a separate improvement, and one which might be made at another time and by separate action of the council under other proceedings of the council relating to sewers, yet these facts would not limit the authority of the council to construct it as a part of this street improvement, if it accomplished the purpose without marked addition of expense for which it was considered to be necessary, namely, draining and making permanent the roadway. That the 15-inch tile serves other purposes as well, and was the means of extending other benefits to other property, and might be put to other uses by the residents along the street, while it at the same time performed the office of a complete method of draining the roadway and making the whole improvement a good substantial workmanlike job, would not seem to require the council to take separate action by separate petition under other sections of the statute to construct it, because it also could be built under such proceedings. The power granted by the legislature to build the street, also granted to the council the' power to do the things necessary to accomplish that purpose, even though the council might do some of the things thus done under other laws and by other methods. Longworth v. Cincinnati, 34 Ohio St. 101; Hastings v. Columbus, 42 Ohio St 585.

By the testimony of Mr. Craig (the engineer who prepared the plans and specifications by order of the council and who was the engineer in charge of the improvement) this 15-ineh tile as laid and at the depth laid in said street did effectually accomplish the purpose of draining the street and roadway, and cost no more as he says, perhaps less than 'if the said street and roadway had been drained by other methods of drainage resorted to for such purposes. Now if this- be true and there-is no evidence to the contrary, the putting down the 15-inch tile as it was laid in said street was good business method and not an extravagance- and abuse of discretion on the part of the council, and hence it must-be treated as not a distinct and separate improvement, but as a part and a necessary part of the improvement at bar under the - petition presented to the council praying for the improvement; and in this view the question of constructing a substantive and separate improvement in the nature of a sewer, and that the resolution and ordinance each contain two separate and distinct subjects, and provide for two separate and distinct improvements, are eliminated from this controversy.

The petition attacks the bid, the contract and its legality, and the legality of the advertisement requesting that bids of contractors be submitted.

It is claimed that the advertisement for bids notified contractors that the plans and specifications were on file in the office of the city engineer and might there be seen and inspected. It is claimed and conceded that there was not an officer of said village created by law, known as the village engineer, and that hence a direction to contractors that the plans were on file at the office of the village engineer was not a notification which would inform builders of the whereabouts of said plans, etc., or when or at what place they could be found and examined by contractors who 'desired to submit proposals to make the improvement.

A grant of power to do a specific thing carries with it the power to do all things necessary to carry into execution the power granted. It was necessary that the council select and appoint a qualified and skilled person to make plans and specifications of this proposed improvement and to act as engineer in charge of the work of construction, this, that the thing which the council was empowered to do might be properly-done, and this is applicable as well to other improvements and other work carried on by that body, touching said village and the improvements therein. That this was done and properly is evidenced without denial. Mr. Craig had been acting as engineer under appointment by the council for many years; he was well known and had been since 1893, as the person selected by the council to perform the duties of engineer where work of that sort was to be done. This employment had, it seems, been almost continuous. His office was in the office of the county surveyor which was always open during business hours. All of these facts were a matter of common knowledge in Wapakoneta and vicinity to h degree that Mr. Craig was known as the city engineer. We are of opinion that under- these circumstances the advertisement for bids directing the contractors desiring to see the plans of this improvement to the office of the city engineer was in no wise misleading, Ibut put such in possession of true and full information in that behalf.

It is urged as fatal to the advertisement for bids and all proceedings thereafter that the publication of the notice for sealed proposals was first made on July 4, 1901; that this publication of the ordinance providing for the improvement was made on July 4, 1901, and that the 'ordinance not going into effect until ten days after said July 4, the date ©f its publication, the advertisement for bids was not published for the requisite time after the ordinance became effective.

We are not of the opinion that this is a vice in the proceedings, oi that which followed in consequence of it, that will bear injunction of these assessments. There is nothing to indicate substantially that any property owner was prejudiced by it, or that any bidder-was prevented from making and submitting his proposal, or that the notice failed to reach any who intended to bid, or that the work might have sold for a less price, or that competition was prevented. It was not a jurisdictional matter, or an act in its nature legislative which the clerk was directed to perform. While all this would not cure such defect and failure upon the part of the clerk to advertise for bids strictly in compliance with the terms of the statute, which is deemed to be for the protection of the taxpayer and is regarded as peremptory, yet coupled with the fact that the plaintiffs had full notice of the filing of the petition and of the action of the council upon the petition, and that the improvement was about to be made, and that the cost was to be assessed upon abutting property, and were interested and cognizant of each step taken, and had as good reason then, before work had commenced under the contract and before the contract was let and before expenses had been incurred, as they have since to know, and, for anything to the contrary appearing in evidence, did then know of this defect 'in the advertisement for bids, as well as they now know it. And further, coupled with the fact that in the face of all, they stood by and allowed the improvement to be' made and the money to be expended without objection taken by legal steps.

All these facts it would seem present themselves for consideration in an action to enjoin the assessment when it comes to the application of the sections of the statute which are curative in their nature and are to guard the rights of all parties and prevent violations which might otherwise arise from mistake, ignorance, negligence or irregularities, or improvidence of municipal officers and be attributable to their conduct.

The result in such ease is that, while the assessment may not be and is not conclusive as to amount and is only enforcible to the extent of expense incurred, yet as to the apportioning between properties to be assessed of this amount and making it chargeable upon abutting property, the ordinance under which the improvement is made, is regarded as conclusive, the ordinance having been passed and the method of assessment having been determined upon before the bidding and before the contract was made.

It is not claimed that the expense of this improvement was not incurred. There is no criticism of the quality of the improvement or the fairness of the price of the work and material. The objection is that the improvement was made and charged up to this street improvement which the council had no right or power to make under that proceeding, and charge and assess, as a part of that street improvement. So that as we view the case this failure upon the part of the clerk to advertise for bids for the period of four weeks after the ordinance went into force in this action, does not effect the event and action to restrain the collection of an assessment invoking the principles of equity; the merits of the case presented by the complaining parties must show that he is entitled to substantial relief such in character as is offered by courts of equity.

The evidence clearly shows that under the circumstances, not least of which is that plaintiffs stood by and saw the improvement made and money expended without complaint and without taking legal steps to prevent it, and this, together With the fact that the expense is such as should be assessed against the abutting property, leaves the plaintiffs without that which would move a court of equity in their behalf.

It might be different if this action was to restrain the collection of something in the nature of a penalty.

It does not appear from the evidence that the amount charged tf each lot, though, computed and apportioned by the foot front, exceeds substantially in any instance the benefits conferred upon the property by the improvement. This being the case, the method of assessment, even if this assessment itself were without the criticism which follows the failure of the clerk to properly advertise for bids, would not invalidate the assessment in the amount which does not exceed the benefit. So that we cannot see where the objection, that the asessment is inimical to the constitution of this state and the constitution of the United States, would have application here.

The objection as to failure of notice to property owners is not made good in any respect. The evidence shows that full and complete and legal notice was given in each instance when notice was required.

Without prolonging this opinion by going into detail and without amplification in this regard, we find in neither of the five reasons set forth in the petition, for reducing the amount chargeable to each lot, cause for relief in that behalf. And, altogether, in our opinion, no ease is made to grant the injunction prayed in the petition.

It does appear, however, that the improvement as to some of the plaintiffs’ property abutting on the street is not properly completed. Notably as to the property of plaintiffs Benjamin Burden, Grant Taylor and Jacob Culp, and perhaps others to a less extent. Surely without denial as to the lots of the plaintiffs I have named, the improvement ends at the east line of the Burden lot, and is so left at the end that the water from the intersecting street cannot reach the paved street and so pass off, but is dammed up there by the insufficient grade or approach to the pavement, making an unsightly and unhealthy mudhole. Grant Taylor’s lot drains to a street running along the side of his lot, and intersecting the improved' street. The water draining from his lot reaches the side street .and because of the height of the surface of the improved street the water cannot flow off to the side street, and so is left to stagnate, and, from the evidence, the same is true of the lot of Jacob Culp, and perhaps of others.

This condition was not intended to result from the improvement and must be remedied, not only as to the plaintiffs whom I have speeifi-cally named, but as to the others, and wherever it exists, if it exists elsewhere. The parties are entitled to have the street so constructed and the intersecting streets so fixed and graded as to overcome the trouble of which they complain. It seems this may be accomplished without difficulty, and must be so done without further expense to them, as well those I have named as those I have not named, if conditions demand it. As to Burden, Taylor and Culp, the collection of the amount with which their lots stand charged will be restrained until a showing is made to this court that the defect of which I speak is made right. As to them the case is continued until the next term of this court in order that opportunity may be given the defendant to show that *t has complied with this condition. The injunction is refused as to the other plaintiffs, with the admonition, however, to defendant, that this court will hold defendant to the obligation to remedy any condition of the character described which may exit as to each and any of said other plaintiffs.

The costs because of the defect in the advertisement for bids, and the reason which said defect afforded for a possible remedy, are adjudged against the defendant, and the petition as to the plaintiffs other than •Burden, Taylor and Culp is dismissed and the injunction dissolved. Judgment for costs against defendant. Execution is awarded and the case is remanded for execution.

Mooney, J., concurs.