text:
    AS TO THE QUALIFICATION OF A COUNCILMAN WITH RESPECT TO RESIDENCE.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel Fred Weber, v. Frank Hathaway.
    Decided, November 19, 1908.

      Officers — Residence Required of City Oouncilmen.

    1. The residence which is required by Section 1536-613, Revised Statutes, to qualify one to hold the office of city councilman, is the residence which is required to qualify one as an elector.
    2. Where a councilman removes outside the state to accept employment, without any fixed intent either to stay or return, the office which he has held does not thereby become vacant.

      Green &■ Zmunt, for plaintiff.

      Deutsch, Hotvells & Grossman, contra. •
    Henry, J.; Marvin, J., concurs.
   The ouster of a village councilman from his office is sought by this proceeding, the turning' point of which is whether a vacancy therein was caused by the removal from the village or by the subsequent resignation of the prior incumbent. In the former ease the relator, who is the mayor’s appointee, is entitled to the office. In the .latter case the defendant, who is incumbent under the council’s appointment, is entitled to it.

We intimated our possible conclusion at the close of the hearing this morning, but we took the case under advisement for the sole purpose of confirming our prima facie impression, that the removal from the municipality contemplated, by Section 3536-613, Revised Statutes, had not been made by councilman Wagner in such manner as to render his office vacant.

We have examined some of the authorities, and have paused to look again over the brief of counsel, or citation of authorities, handed us a few moments ago, to determine whether or not there were any cases there that put a different complexion on the matter, other than the cases we had already examined; and we are prepared now to confirm the intimation we gave this morning upon the subject.

The section so far is it bears upon the narrow question on which we had evidence this morning, is:

“Councilmen at large shall have resided in their respective cities, and councilmen from wards shall have resided in their respective wards, for at least one year next preceding their election. Every member of. council shall be an elector of the city. Any member who shall cease to possess any of the qualifications therein required, or shall remove from his ward, if elected from his ward, or from the city, if elected from the city at large, shall forthwith forfeit his office.”

Our impression this morning was, and it is confirmed by our subsequent inquiry, that the residence which is required by this section of the statutes, for the purpose of maintaining the right to hold the office of councilman, is precisely the residence which is required to qualify a person as an elector. There is a hint, of course, of tautology in the language of the statute, “Any member who shall cease to possess any of the qualifications therein required,” that is, ceasing to be an elector of the city, and the other requirement in the same sentence, “or shall remove from his ward, if elected from his ward, or from the city, if elected from the city at large.” That is to say, there is a hint in this language, that possibly the same thing is said twice, that it was unnecessary to say anything about removal, if the requirement of being an elector were observed; and the argument is suggested from that hint of tautology, that possibly the Legislature meant something different when it undertook to say that removal from the ward or city would also work a vacancy in the office. But on further investigation, it appears that this language is not open to the charge that it is tautological, on the interpretation we place upon it, for the reason that we must consider this statute as applying not only to villages where all the councilmen are elected at large and where the question of residence in a ward is of no account, but also to cities divided into wards, where residence in a given ward is one of the qualifications of a councilman. In other words, applying this section to the ease of a city, it may well be time that one holding the office of councilman might continue to be an elector of the city, though removal from the ward would work a vacancy in his office as councilman.

Now what are the qualifications which an elctor must -possess in regard to residence ? What has been the history of our legislation on this subject, as bearing upon removal? In this connection, holding as we do.that the qualifications of councilmen 'in respect of residence resemble those of electors, we refer to the case of Lehman v. McBride, 15 O. S., 573, where, in the opinion of the court, at pages 600 and 601 reference is made to the act of 1841, being an act “to preserve the purity of elections,” wherein the word “residence” is thus defined:

“First: That place shall be considered and held to be the residence of the person, in which his habitation is fixed, without any present intention of removing therefrom; and to which, whenever he is absent, he has the intention of returning. ’ ’

We note particularly the use of that word “removing,” which is exactly the word we are discussing and to which our attention has been called. And again, in the same opinion, further quoting from the act of 1841, this language is used:

“A person shall not be considered or held to have lost his residence who shall leave his home and go into another state or county of this state for temporary purposes merely, with an intention of returning.”

Now the evidence which was adduced this morning is, of course, somewhat in conflict. It is noticeable that Mr. Wagner does not undertake to contradict (perhaps on account of lack of memory on his part) the testimony of the witness in whose home he used the telephone as to said Wagner’s language both then and after the telephone conversation was finished. Moreover it is, to say the least, left in A^ery grave doubt Avhether he had ever formed any intention A-vhatever different from that which the laAv imputes to him in regard to vdiere his residence Avas fixed Avhen lie left the state of Ohio to go into the service of the electric railroad Avhich operates betAAreen Baltimore and Annapolis. Employment is not presumptively permanent, nor Avas this by any means certainly so. All the circumstances go to sIioav that Avhile he entertained some doubt in his mind as to Aidiat his future might be, still he did not form any definite intention, as Ave vieAV the evidence, of renouncing his then existing residence and accpiiring a nevT and definite residence elseAvhere. If he had presented himself as an elector at the polls at the election next folloAving his return, supposing the same conditions existed as at the time he returned to his mother’s home, can it be doubted that he Avould have had the right to cast his vote; that his Arote Avould haA'e been received? We think not. We think that clearly under these circumstances, his vote AA^ould haATe been alloived, unless some different evidence had been produced to the election officers from that Avhich has been produced to us.

We are not unmindful of all that counsel urge regarding the rule as expressed in Slurgeon v. Korte, 34 O. S., 534 and 535. We appreciate that though a person may not have any -fixed determination to renounce his previous home, AAffien he leaves the home AA'here he has theretofore lived, yet, he may, by forming a determination in that behalf, after he leaves, accomplish the same result; that is, he may change his residence definitely by a determination conceiA^ed and fixed in his mind after his departure. But there is no evidence hero as to what his state of mind became after he left Ohio, except this letter of resignation ; outside of this we have absolutely no light on the subject at all. In his letter he expresses some doubt as to whether or when he will return. Certainly it is not indicated that he had theretofore come to a fixed determination to renounce his former home and to acquire a new one. We do not attach any specific importance to the use of the word ‘‘home” because that is the most natural word to use, in common parlance, when referring to the home of one’s parents. Taking the whole matter of the letter together, the entire language of the letter, he does not herein express any fixed determination to renounce his lawful residence and to acquire a new one. We are unable to say, amid the conflict of oral testimony, that the' preponderance of evidence is in favor of the proposition that he had renounced his home, but we are, on the contrary, inclined to infer from the evidence affirmatively that he had not so done. That being our inference of fact our determination necessarily is favorable to the relator, and the judgment of this court will be that the defendant, Frank Hathaway, be and he is ousted from his office as councilman of the village of South Newburg, and the relator inducted into that office. There is no other dispute as to the validity of the relator’s election, ns indicated in the answer of the defendant.


source: Caselaw Access Project

license: Public Domain

text:
    AS TO PAYMENT FOR. AN AUTOPSY PERFORMED AT REQUEST OF THE CORONER..
    Circuit Court of Cuyahoga County.
    The Board of County Commissioners of Cuyahoga County v. A. P. Hammond.
    Decided, March 28, 1908.

      Physician — Right to Compensation for Performing Autopsy.

    Section 1305, Revised Statutes, creates no liability on the part of the county in favor of a physician or surgeon who has made a post mortem examination at the instance of the coroner if the county commissioners refuse to allow him compensation.

      G. W. Stage, for plaintiff in error.

      E. P. Eirich and William EToiueZZ/contra.
    Henry, J.; Winch, J., and Marvin, ,J„ concur.
   The defendant in error presented his bill to the county commissioners of Cuyahoga county, duly approved by the coroner of this county, for medical services rendered in performing an autopsy ordered by that official. The claim was based upon Section 1305, Revised Statutes, but the commissioners rejected it; thereupon Dr. Hammond appealed to the common pleas court, under favor of Section 896, Revised Statutes, whereupon the commissioners moved for dismissal of the appeal for want of jurisdiction. This motion was refused, and exception reserved, whereupon judgment on the merits was rendered in favor of Dr. Hammond for the sum of filio.

In this proceeding in error it is urged that the court of common pleas erred in refusing to dismiss the appeal.' Section 1305 reads as follows:

“When a physician 5r surgeon malíes a post-mortem examination at the instance of the coroner or other official he shall be allowed such compensation for his services as the county commissioners of the proper county may direct.”

The language of this section seems to be perfectly analogous to the phraseology of the statutes which were construed in Commissioners of Geauga County v. Ranney et al, 33 O. S., 388, and Long v. Commissioners, 75 O. S., 539, where it was held in both instances that an attorney has no right of appeal from the decision of the county commissioners for allowing a sum alleged to be inadequate, in payment for services in defending an indigent prisoner, pursuant to assignment in that behalf by the common pleas court.

Comparison of these cases with Shepard v. Commissioners of Darke County, 8 O. S., 354, and Trustees v. While et al, 48 O. S., 577, discloses the true test to be: Does the statute of itself create the liability which ip asserted, or does the statute merely authorize the county commissioners to create the liability? In the former case the right of appeal exists from the decision of the county commissioners refusing to recognize any liability; in the latter instance no such right of appeal is allowable.

Section 1305 seems clearly to provide that the legal demand or liability for compensation to a physician who performs a postmortem examination at the instance of a county officer arises only when the county commissioners have allowed such demand. If they refuse to allow anything, no liability exists. The judgment of the court of common pleas is therefore reversed for error in refusing to dismiss the appeal for want of jurisdiction. And proceeding to render here the judgment which the court below should have rendered, the appeal from the decision of the board of county commissioners is dismissed.


text:
    REGULARITY OF BIDS FOR. A PUBLIC BUILDING.
    Court of Appeals for Hamilton County.
    State of Ohio, on the Relation of Howard Ayres, a Taxpayer, v. James A. Green, et al, Composing the New Court House Building Commission of Hamilton County, Ohio, et al.
    Decided, July 12, 1915.

      Bids and Bidding — Defects in Form which May be Waived — Separate Trades Placed on Same Footing as Bidders for the Entire Job— What Constitutes Competitive Bidding — Separation of Labor and Materials — Interlineations and Erasures — Bill of Exceptions — Correction of Omissions and Errors.

    1. A motion for a new trial is in time if filed within three days from the entry on the journal of the judgment of the court. Cincinnati v. Kilgour, 18 C.CJN.S.), modified.
    2. Under the power given to courts to correct mistakes in furtherance of justice or to supply omissions in bills of exceptions, a trial court has authority to correct a mistake in the number which has been given a bill of exceptions and to make a notation of the real date of the filing thereof, and where such a correction is made it relates back to the real date of the filing.
    3. The fact that a bidder for the constructio'n of a- public building wrote one proposition on the proposal sheet, which he did not find in the printed form, is a defect which the building commission has power to waive, and where its waiver has the effect of saving money for the people it will not be condemned by the courts.
    4. The purpose of Sections 2363 and 2364 is to extend the opportunities for competition by giving separate trades an opportunity to bid separately for their separate branches and receive the same consideration as those who bid for the entire work, and these sections permit a bidder for a part of the work to make his bid cover more than one kind of work or materials, even to the extent of bidding for all branches of the work except one.

      Matthews & Klein and G. C. Williams, for plaintiff in error.

      John Y. Campbell and Chas. A. Groom. Prosecuting Attorneys, and Moulinier, Bettman S Hunt, contra.

      Jones (Oliver B.), J.; Jones (E. H.), J., and Gorman, J., concur.
   A motion has been made to strike the bill of exceptions from the files. The reasons urged are:

1. That the motion of plaintiff below for a new trial was not filed within three days after the decision was rendered (Section 11578, General Code, although it was filed within three days from the date of the journal entry of judgment'for defendant and dismissing the petition.

2. That the bill of exceptions was not filed in this case within the time fixed by Section 11564, General Code, — that is, not later than forty days after the overruling of the motion for a new trial.

It appears from the bill of exceptions that the court rendered a decision in favor of the defendants on their motion to dismiss the petition, on the 24th day of April, 1915. No record, however, of any such decision is found on the appearance docket or upon the journal of the court. The appearance docket and the journal do show, however, and so does the bill of exceptions, that judgment was entered for defendants dismissing the petition on May 6,1915, and that a motion for new trial was filed on the same day. On May 13, 1915, an order was made by the court overruling this motion for a new trial, to which exception was then taken by the plaintiff. On June 14, 1915', a motion was filed by plaintiff under leave of court duly given on that date to compel the attachment of original exhibits to the bill of exceptions ; and an order was on that day made by the court granting said motion and compelling defendants to produce the original exhibits, offered in evidence and made part of the record in the trial of this case, for attachment to the bill of exceptions and permitting the substitution of copies thereof if desired.

A bill of exceptions was filed in the court of common pleas setting out the evidence and exhibits offered in the case below, on June 14, 1915. Tb’is bill of exceptions was filed under the proper caption of .the cause below, but, through the inadvertence of the official stenographer, instead of bearing the correct number of the case below, to-wit, No. 158809 it bore the number 158782 which was the number of a ease brought by Howard Ayres as a taxpayer against the same defendants that were in ease No. 158809, which ease had been discontinued because of the fact that said taxpayer before filing his petition failed to make application to the prosecuting attorney to bring such a suit as provided by Section 2922, G-eneral Code. The filing of this bill of exceptions on June 14, 1915, was therefore not noted upon the docket of case No. 158809, but was probably noted upon the docket under the ease number which it then bore.

On June 25, 1915, the error being discovered, a motion was made to amend this bill of exceptions by changing its number from 158782 to 158809, and for an order showing the filing of the bill of exceptions under No. 158809 on the 14th day of June, 1915. An order was made by the trial court granting that motion so far as to change the number on said bill of exceptions but refusing it so far as it asked for an order showing the filing of a bill of exceptions under No. 158809 on said June 14, 1915. Without any additional filing than as above set out, the bill of exceptions, with the objections that had been filed thereto, was thereupon taken up by the trial judge, and was corrected and allowed by him on June- 29, 1915.

The defendants in error contend that the motion for new trial in order to be effective should have been filed within three days after April 24, 1915, the day on which the trial judge handed down his decision in the case, and rely upon the case of Cincinnati v. Kilgour, 13 C.C.(N.S.), 415, for their construction of Section 11578, General Code.

It is true this case holds that the time the “decision is rendered” under the terms of that Section means the announcement of the opinion of the court, whether an oral or a written opinion. The difficulty, however, of such a construction as that, unlike the verdict of a jury, there is no provision made by statute for making a record of such decision by the court either by the filing of a written opinion-as' one of the papers in the case or by the noting on the docket of an. oral announcement of its decision by the court. And, as already stated,- in this case there is nothing in'the record, to show that a- decision was fnade prior to the entering of the judgment except the fact so stated in the bill of exceptions. The ease relied upon by defendants in error is in conflict with the decisions of the Supreme Court in Buckeye Pipe Line Co. v. Fee, 62 O. S., 543, at 555, and Eldridge v. Barrere, 74 O. S., 389, at 395, where it is held that a court of record can only speak by its journal, and that the judgments, orders and decrees of a court of record do not rest in parol, but become effective only when entered on the journal of the court. It must be held, therefore, that the motion for new trial in this case was filed within time, and the time fixed for filing the bill of exceptions would date from the overruling of this motion.

The bill of exceptions was properly filed with the clerk on June 14, 1915, but, because of the error in its number, was not noted upon the appearance docket of the ease in which it was taken, and instead was noted upon the appearance docket in the discontinued case. The motion, however, which was made for the production of exhibits and their attachment to-the bill of exceptions was noted on the docket of this case, and was so made in connection with this bill of exceptions as to advise all parties interested in the case that it had been filed. Under the authority of King v. Penn, 43 O. S., 57, 60, and Burchard v. State, 83 O. S., 1, 10, this bill of exceptions must be deemed as having been filed in the proper case. Under the-power given to the court for the correction of mistakes in furtherance of justice, Section 11363, General Code, and to correct omission in bills of exceptions, Section 31572-a, General Code, the court below had authority to correct the mistake in the number of this bill of exceptions, and also to note the real date of its filing thereon. Hazelwood v. Parker, 2 Disney, 429; Traction Co. v. Ruthman, 85 O. S., 602, 608; Pace v. Volk, 85 O. S., 413.

The-number was duly corrected, and this corretion related back to the filing of the bill of exceptions and rendered unneeessary a new order of notation of such filing, although the court should have granted the motion in that respect and the clerk should have noted the filing upon the a-pperance docket of the corrected number. The parties, however, and the court as well, treated tin* bill of exceptions as though it had been filed under the correct number in the live case in which it ivas taken, and it was duly signed and allowed by the court within the time fixed by statute, and properly became a part of the record.

The motion to strike the bill of exceptions from the files must therefore be overruled.

By this proceeding in error it is sought to reverse the judgment of the common pleas court refusing to enjoin contracts for the mechanical and electrical equipment of the new court house, as awarded by the building commission to the Standard Engineering Company and the Standard Plunger Elevator Company.

Under elaborate specifications prepared by direction of the building commission bids were taken not only for the whole work but for the various branches of the work such as boilers, steam engines, electric generators, heating and ventilating systems, elevator equipments, etc. Under the provisions of Sections 2362, 2363 and 2364, General Code, forms were prepared permitting lump bids for the entire work and materials, and also separate and distinct proposals for materials and labor for each separate and distinct trade or kind of mechanical labor, embodying twenty-one distinct branches or items. In addition a number' of alternatives were provided under many of these items, making some sixty-four possible alternatives. Many bids were received from many different bidders, both for the entire work and separate bids for the different branches of work, different parties bidding as they saw fit under the provision contained in the following paragraph of the bid form:

“Bidders are at. liberty to submit proposals for various branches of the Avork, or for the entire work covered by the drawings and specifications as a Avhole, as provided for in the proposal sheets.”

On full consideration of all the bids received for such work, on recommendation of the architects and engineers certain alternatives were adopted by the building commission, and certain fixtures and alternatives were omitted by them in order to reduce the amount to be expended upon the mechanical .equipment so that the total cost of the building structure, jail and the mechanical equipment should-not exceed the amount of the bond issue for the erection of the building; and upon a comparison of the bids, using the alternatives decided upon, it was ascertained that the Standard Engineering Company’s proposal or bid for the mechanical equipment exclusive of elevators, amounting to $203,350, and the Standard Plunger Elevator Company’s proposal for elevators, amounting to $103,855, were the lowest bids, and were together lower in amount than the total of the bids for the same work submitted for each branch of the work by separate bidders; and the contracts were therefore awarded to said bidders on their said proposals.

Plaintiff below contended that the awards so made were not to the lowest bidders. A careful consideration of the record, however, shows that the bids of said companies so accepted were the lowest bids for the work.

The power of the building commission to receive bids in the alternative, which question is raised by the plaintiff in this case, was sustained in the consideration of the contract for the building of this court house which was before this court in State, ex rel Waltz v. Green, Vol. 22 C.C.(N.S.), 1.

This leaves for consideration, therefore, the question as to whether the bid under which the award was made to the Standard Engineering Company was in accordance with the advertisement and specifications, and was authorized by law.

The proposal sheets as prepared for bidding contained, in paragraph known as MAIN BID A, a form for an entire bid for tñe whole work. In this form the Standard Engineering Company made a bid of $352,800, separating it into $265,500 for material, and $87,300 for labor, and upon the same page they inserted with a pen the following: “Alternative Bid A-l, same as Main Bid A, omitting elevator equipment, $232,800.00.” This form was also followed by separate form for each branch of the work. As before stated, there were some twenty different branches, with alternatives under many of these branches. The award was made to the Standard Engineering Company under its Alternative Bid A-3. Plaintiff contends that this 'is not a valid bid and could not be considered by the commission.

Plaintiff claims that this bid is not upon the proposal form prescribed by the commission and is not an alternative bid called for by the advertisements and specifications. It is true that no such alternative was printed upon the form used, but in effect it amounts to the same thing as though each of the twenty printed alternatives for the twenty branches had been bid upon, omitting to bid’only upon the elevator equipment, with the provision that the bidder would insist upon an award of all or none of these twenty branches. In other words, instead of detailing twenty bids for the twenty separate branches bid upon, with the provision that all or none should be taken, the bidder simplified the matter by his written alternative bid A-3, giving the aggregate for the twenty separate branches which he desired.

The legality of a bid for all or one of a number of branches is upheld in the case of Yaryan v. Toledo, 8 C.C.(N.S.), 1, at pages 24 and 25 (aff. 76 O. S., 584). The fact that this proposition was written upon the bid form by the bidder, instead of being provided for in the printed form itself, constitutes a defect which the commission had power to waive, in the form of the bid, and where its waiver operates to effect a saving of money to the people they represent, sucll waiver should not be critized by a disinterested tax payer or condemned by the court. The power to waive defects is sustained by the case of State, ex rel Ross, v. Board of Education, 42 O. S., 374, and Yaryan v. Toledo, supra.

It is also contended that such bid is not a competitive bid, since none of the other bidders were called upon to make such a bid or knew that such a bid would be considered. As stated above, all bidders had the privilege under the form used, without question, to submit bids as to the twenty branches, and all separate bids given for these twenty branches were in direct eompétition with this bid of the successful company shown in its Alternative Bid A-l, and not only were the lowest combination of these bids upon these separate branches in this competition but when taken in connection with the lowest separate bid for the remaining branch, to-wit, elevator equipment, they were also in direct competition with all lump bids under Main Bid A.

Such a consideration of Sections 2363 and 2364, General Code, is given by the Supreme Court in State v. Commissioners, 39 O. S., 188; State v. Hanna, 13 O. D., 321, 324.

The purpose of Sections 2363 and 2364 is undoubtedly to extend opportunities for competition to such an extent that separate trades bidding separately for their respective branches can have full consideration in connection with those bidders who are able to make proposals for the entire job; and these sections undoubtedly permit such separate bidders to bid for more than one kind of work or materials to the extent, as in this case, of bidding for all branches except one. And such bids, all of them, come in direct competition with each other.

Further objection is made that this bid does not state separately the amount bid for work and the amount bid for material, as required by Section 2362, General Code. It must be noted that the language of Section 2362 leaves this separation of bids for furnishing material and doing work to the sound discretion of the commission, and is not stated in the mandatory language employed in Section‘4329, General Code, which leaves no discretion. But, outside of the language of the statute, such separation of labor and materials must be made with reference to its practicability in the particular ease. Labor enters into all materials. The finished product of one trade becomes the raw material of another. The or'e of the miner is to him material; the pig-iron is the finished product of the furnace; the bar iron of the rolling-mill; and so on, up the line until the highest form of machinery is reached. A consideration of the items bid upon in the contract before the court shows that there has been no abuse of discretion by this building commission in refusing to consider Alternative Bid A-l because of the fact that it contains no separation of labor and material,' — which, if it were made, must under the circumstances of the case be purely arbitary and inexact; and' as separated bids made in competition failed to show that any lower or better price could have been obtained by considering labor and material separate, no injury has resulted to the tax-payer. This matter of the separation of labor and material has been frequently before the courts, and has been similarly considered in other eases. Attention is called to State, ex rel, v. Board of Education, 14 C. C., 15, 23; Fergus v. City of Columbus; 6 N. P., 82, at 91.

Another objection is that the bid as made by the Standard Engineering Company shows marks of erasure in its figures. The figures upon the bid, however, are perfectly clear and intelligible. Mo claim is made that any erasure or change was made after the bid was received by the commission or that there is anything improper in regard to the erasure. It is claimed that this erasure, and the fact that Alternative Bid A-l. was written in with a pen, constitute a violation of the instructions contained at page 13 of the specifications in the general conditions which provide, that the bids shall be “without interlineation, alteration or erasure.” These defects are such as might have been considered by the commission in determining whether or not the bid should be received, and, as stated above, are such as the commission had power to waive. They do not appear to have prejudiced the rights of other bidders in any way, and it appears that it was not only the right but the duty of the commission to have considered and accepted this bid notwithstanding these defects.

A careful examination of the entire record leads the court to the opinion that the contracts as made are in strict accordance with law, and the judgment below is therefore affirmed.


text:
    DEATH OF A COUNTY COMMISSIONER. DOES NOT PREVENT TRANSACTION OF BUSINESS BY THE REMAINDER OF THE BOARD.
    Court of Appeals for Lucas County.
    State of Ohio, ex rel John C. D’Alton, Prosecuting Attorney, v. Roy E. Davis and Charles J. Romeis, as Commissioners of Lucas County, Ohio.
    Decided, July 12, 1915.

      County Commissioners — Are a Quasi Corporate Body — Transaction of Business Not Stopped by the Death of One of the Members.

    In case of the death of one member of the board of county commissioners, the vacancy thus created remaining unfilled, the surviving members have authority, acting together, to perform the duties of the board.

      John G. D’Alton, Prosecuting Attorney, and Allen J. Seney, for plaintiff.

      Webster, Kirtley & Connolly, contra.
    Richards, J.; Chittenden, J., and Kinder, J., concur.
    Appeal from the court of common pleas.
   This action is brought by the Prosecuting Attorney for the purpose of restraining the defendants from entering into a contract with Phil Garrigan & Son, for the construction of a certain improved road in the county of Lucas. The sole ground on which the prosecutor seeks the injunction is-that the two persons named do not constitute a board of county commissioners, the third member’ of said board being deceased and the vacancy never having been filled by the appointing authorities.

A demurrer was filed to the petition in the court of common pleas and sustained by that court, and, the plaintiff not desiring to plead further, the petition was dismissed and from this decree an appeal has been taken to this court.

It appears from the averments of the petition that the third member of the board of county commissioners of Lucas county, Frank W. Westfall, died on May 26, 1915, and that before his decease certain legislation had been passed by the board providing for the construction of the road in question, and that this included the sale of bonds of the county in the amount of $30,-000. Bids had been duly advertised for, and on June 29, 1915, the defendants, pretending to act as a board of county commissioners, received and opened among other bids the bid of Phil' Garrigan & Son in the sum of $27,953.70, and it is to prevent the execution of a contract with-this bidder that this injunction is sought.

It is provided by Section 2395, General Code, that the board of county commissioners shall consist of three persons, and by Section 2103, General Code, that a majority of the board shall constitute a quorum thereof. Section 2397, General Code, provides as follows: '

“If a vacancy in the office of commissioner occurs more than thirty days before the next election’for state and county officers, a successor shall be elected thereat. If a vacancy occurs more than thirty days before such election, or within that time, and the interest of the county requires that the vacancy be filled before the election, the probate judge, auditor, and recorder of the county, or a majority of them, shall appoint a commissioner, who shall hold his office until his successor is elected and qualified.”

Tt is a fair inference from the language of the section just quoted that the General Assembly contemplated that a vacancy might or might not be filled, depending upon the judgment of the appointing power. It could not be assumed that the General Assembly contemplated that the business of the county must stop by reason of the death of one member of the board of comity commissioners. The public necessities naturally would require that the public business of the county should be transacted, and the language of this section justifies the inference that the law making authorities had in view that under certain circumstances such business might properly lie transacted by two members of the board after the decease of the other member. The language of the statute providing that the board of county commissioners shall consist of three persons is in all material respects similar, so far as this question is concerned, to the language of Section 1466, General Code (103 O. L., 408), which provides that the Supreme Court shall consist of a chief justice and six judges, and yet it is common knowledge to all, that, notwithstanding the decease of a member of the Supreme Court, that body continues the hearing and decision of cases and the. transaction of such business as may properly come before it. This is by virtue of the- constitutional provision that a majority of the Supreme Court constitutes a quorum and has authority to pronounce a decision except in certain specified cases.

In 7 Euling Case Law, 999, the cases are collected on the question, and the general rule stated to be that the death of one member of a court will not deprive the survivors of authority to transact the business of the court; and a similar rule is applicable to a boárd of county commissioners.

The greatest inconvenience would arise in the transaction of public business if boards or eom’ts were powerless to transact business upon the death of one of their members, and it must be 'remembered that the hoard of county commissioners is a quasi body corporate, having existence in perpetuity and capable of suing and being sued as such body.

The question was under consideration in Cupp et al v. Board of Commissioners of Seneca County, 19 O. S., 173, and the court in that ease discusses the power of a majority of the board of commissioners to act, and, while the claimed infirmity there was the absence of a commissioner and not his death, yet the discussion of the court in the opinion by Welch, J., is instructive.

In State of Ohio, ex rel, v. Orr, 61 O. S., 384, it was held by the Supreme Court that the removal from his ward of a member of a city council should be regarded as creating a vacancy in the office, and that where such vacancy existed the remaining members might lawfully act. The ease is a valuable one as indicating the view of that court that the existence of a vacancy did not prevent the transaction of business by the city council so long as a legal quorum remained.

A very instructive case shedding much light on the question under consideration is Swedback v. Olson, 107 Minn., 420. In that ease the board of county commissioners under the statutes of the state was composed of five members, each representing a district within the county. A representative of one of these districts had failed to qualify and the vacancy thus arising had not been filled, yet the court held that four members could lawfully exercise the powers of the board. The -conclusion is arrived at after a careful review of the authorities and a discussion of the principles involved. It is true that the court in discussing the case quotes from a nisi prius decision language expressing doubt whether if a public duty is entrusted to three persons and one dies or is disqualified, the others can act alone, but, under the statutes of Ohio already cited, power is entrusted to a majority of three constituting the board of commissioners, to act, and, therefore, it is apparent that the doubt suggested is not tenable under a statute similar to the one in our state.

Much reliance is placed by counsel for plaintiff on Wentworth v. Farmington, 49 N. H., 119, and the cases there cited. The New Hampshire statute on which that decision is based is quoted in part in Palmer v. Conway, 22 N. H., 144, 150. It appears from this ease and the various statutes to' which reference is therein made, that the appointing power in that state had full authority to fill any vacancy that might arise, temporary or-otherwise, at any time, and that the statutes of that state contemplate that the board should always have its full complement of members when action is taken. It is noticeable that Wentworth v. Farmington, cited supra, relies for its conclusions upon no authorities except those within the state of New Hampshire, and we. think the .authority is not applicable under the statutes of Ohio. We conclude therefore that the two surviving members acting together, are vested with full power to perform the duties of the board.

For the reasons given, the demurrer to the petition will be sustained and the petition dismissed.


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    RESTRICTING THE ISSUE IN FORCIBLE ENTRY AND DETAINER..
    Court of Appeals tor Clermont County.
    C. E. McKibben v. Charles J. Rosselot.
    Decided, April, 1915.

      Forcible Entry and Detainer — Employee Discharged and Judgment Given Employer for Possession of the House He Occupied — Reason for the Discharge Not Competent.

    3. In an action in forcible entry-and detainer, brought by an employer against an employee who was given house rent free under his con- ■ tract of employment, a case has been made out by the employer when he shows a termination of the employment.
    2. Testimony in such a case as to the reason for the discharge is incompetent but not prejudicial, and a judgment in iavor of the employer will not be disturbed by a reviewing court on the ground of the admission of such testimony.

      Alfred N. Paxton, for plaintiff: in error.

      C. B. Nichols, contra.
   Per Coriam

(Edward IT. Jones, Oliver B. Jones and Gorman, 33.).

This was an action in forcible entry and detainer before A. W. Predmore, a justice of the peace for Jackson township. Judgment was awarded defendant in error by the justice of the peace, and on error to the common pleas court that judgment was affirmed.

It is claimed in this court that the judgments of the justice and of the common pleas are erroneous and should be reversed because of the admission before the justice of certain testimony of the defendant in error which-it was claimed was prejudicial to plaintiff in error.

The relation existing between the parties to this proceeding prior to the commencement of the forcible entry and detainer action arose under a contract of employment in writing whereby Charles J. Rosselot hired C. E. McKibben as a general farm hand for a period of one year from February 18, 1914, his compensation to be $25 per month, and to be furnished during the year with a dwelling house and garden, pasture and feed for one cow, wood sufficient for his use to be cut in his own time by Mc-Kibben, also the right to keep a reasonable amount of poultry. McKibben began work under this contract and entered into possession of the premises allotted to him as a dwelling house, garden and pasture, in accordance with said agreement.

On June 10th, 1914, the action in forcible entry and detainer was commenced to dispossess McKibben of said premises, claiming in the complaint filed by Eosselot that McKibben “hath ever since the 6th day of June, 1914, and doth still unlawfully and forcibly detain” from plaintiff said premises.

A transcript of the docket and journal entries, and a bill of exceptions and the original papers of the trial before the justice are filed in this court. The bill of exceptions does not purport to contain all the evidence adduced on the trial before the justice.

' It is claimed by counsel for plaintiff in error that because of the admission of irrelevant testimony the judgment should be reversed. The testimony objected to was that of defendant in error Eosselot who upon the witness stand proceeded to relate the shortcomings of McKibben as a farm hand; wherein he was slow in his work and not a good farmhand; took too long to feed and care for the stock and was otherwise unsatisfactory.

¥e are of the opinion that this testimony’was not competent because of the question of the kind of a farmhand McKibben was, was not an issue in the forcible entry and detainer .case. The question to be determined by the justice and the jury in the case was the right of McKibben to hold possession of the premises. If he had been discharged by Eosselot and the contract terminated, either rightfully or wrongfully by the dismissal of Mc-Kibben, then in our opinion Eosselot would be entitled to maintain this action and recover possession of the premises. If the breach of the contract was on the part of Eosselot in wrongfully terminating McKibben’s employment, McKibben would have his remedy in an action for damages for breach of contract; and in such an action one element of the damages, if he should be held to have the right of recovery,' would be the reasonable value of the use of the premises for the time he had been wrongfully deprived thereof. He, McKibben, could not hold possession of the premises after his discharge by Rosselot, even though his dismissal were wrongful. Therefore it would appear that the question of the rightful or wrongful dismissal of McKibben could not be inquired into, and if the testimony of Rosselot as to the character of a farm hand McKibben was, was for the purpose of showing a justification of his discharge, it was irrelevant.

But we are of the opinion that the admission of the evidence was not prejudicial error, because all that Rosselot need to have shown in order to maintain the issue on his part was the termination of McKibben’s employment without entering upon the reasons for his dismissal. For all we know from the incomplete record before us, that fact was shown to the court and jury, and we must presume in the absence of evidence in the record to the contrary, that there was evidence before the justice and the jury to warrant a finding that McKibben had been discharged and his right to occupy the premises terminated before the action had been commenced.

There being no other errors claimed in the record except the admission of this testimony, and that not being prejudicial error, the judgment of the common pleas and justice’s courts should be, and they are affirmed.


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    USE OF STREETS FOR. PUBLIC PARADE AND ASSEMBLY.
    Court of Appeals for Hamilton County.
    State of Ohio, on the Relation of Herbert S. Bigelow, v. Frederick S. Spiegel, Mayor of the City of Cincinnati.
    Decided, June 24, 1915.

      Control of the Use of the Streets — Ordinance so Providing Must be Construed in a Reasonable Manner — Disturbance and Nuisance Only to be Avoided — Streets Not Reserved Exclusively for Public Travel— Limitation of the Right of Assembly an Encroachment on Constitutional Rights — Issuance of Permit for Use of the Streets for Public Speaking Compelled by Mandar»,us.

    1. An ordinance pertaining to street processions and assembly in the streets must be regarded as merely regulatory, its chief purpose being to advise the city authorities when, where, and in what manner it is proposed to assemble or parade; and the action of the authorities in granting or refusing permits for such use of the streets must be reasonable, and not arbitrary or governed by whim or caprice.
    2. Where, in an action for a writ of mandamus to compel the mayor of a city to grant a permit for public meetings on the streets, evidence is adduced sustaining the allegations of the petition that the action of the mayor in refusing the permit was not based upon an exercise of discretion but was arbitrary, whimsical and actuated by bias and prejudice toward the relator or the cause advocated by him; and where the evidence furnishes no basis for fear of disturbance, or public inconvenience from the holding of such meetings and shows that permits for like meetings are freely and frequently granted to other persons and organizations, such evidence, uncontradicted, furnishes ground for the issuance of the writ. •
    3. It is always incumbent upon respondent in a mandamus' action to appear in obedience to the command of the court and t.o’ show cause why a peremptory writ should not issue. And, where he fails to appear, without explanation or reason for his absence given, such absence on his part lends added proof that the complaint of relator is true and that no reasonable ground exists for denying to relator the desired permit.

      Thos. L. Micfvie and Eel. F. Alexander, for relator.

      Walter M. Schoenle and Saul Zielonlta, City Solicitors, for respondent.

      Jones (E. PI.), J.; Jones (Oliver B.), J., and Gorman, J., concur.
   The petition in this ease alleges that the relator, Herbert S. Bigelow, is and has been for a long time pastor of the People’s Church, a religious society within the city of Cincinnati; that the membership of said church authorized and requested the relator as pastor to arrange for open air meetings during the summer months; that on or about the 15th day of June, 1915, relator applied to the defendant as mayor of the city of Cincinnati for a permit authorizing him to hold certain street corner meetings as follows:

Sunday, June 20th, 7:30 p. m., Fifth and Race, northeast corner, near middle of block; Monday, June 21st, 7:30 p. m., Brighton; Tuesday, June 22nd, 7:30 p. m., Knowlton’s Corner; Wednesday, June 23d, 7:30 p. m., Madisonville; Thursday June 24th, 7:30 p. m., Peebles Corner; Saturday, June 26th, 7:30 p. m., Findlay Market; that relator stated in his said application that said meetings were to be held for the purpose of discussing the application of the ethical teachings of the Bible to modern social problems, and that the discussion would be under the general subject, “The Bible and the Labor Problem.” The relator further requested from the defendant a blanket permit for any further meetings of similar character which he might desire to hold in the city during the summer.

Then the petition of relator sets out that in response to the above request the respondent Frederick S. Spiegel, Mayor of the city of Cincinnati, wrote to him as follows, refusing his request:

“City op Cincinnati,
“Frederick S. Spiegel, Mayor.
“George F. Craweord, Secretary.
“June 18, 1915.
“Mry Dear Sir: I have given careful consideration to the letter, addressed by Mr. Carl Brannin, executive secretary of the People’s Church, to the chief of police, reading as follows:
“ ‘The People’s Church is planning to hold street-corner meetings this summer for the purpose of discussing the application of the ethical teachings of the Bible to our modern social problems. These, discussions will be under the general subject, “The Bible and the Labor Problem,” a different subject being used each week.
“ ‘We would like to begin these meetings Sunday night, June 20th, at 7:30 p. m., at Fifth and Race, N. E. corner, near the middle of the block, and continue during the week according to the following schedule: Monday, June 21, 7:30 p. m., Brighton; Tuesday, June 22, 7:30 p. M., Knowlton’s Corner; Wednesday, June 23, 7:30 p. m„ Madisonville; Thursday, June 24, 7:30 p. m., Peebles Corner; Friday, June 25, 7:30 p. m., Norwood; Saturday, June 26, 7:30 p. m., Findlay Market.
“ ‘A schedule of the meetings planned for the following week will be sent you at the proper time, unless you will accede to our request for a blanket permit, which would make same unnecessary.’
“I have also carefully considered your letter, in which you inform me that the safety director and the chief of police have verbally refused your request, but that, under the ordinance, the request should have been addressed to the mayor, which is correct^ and that, therefore, you desire that I should pass upon the matter.
“Section 3714 of the General Code of Ohio, provides that municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law, and that council shall have the care, supervision and control over them.
“In accordance with this power, council has passed an ordinance, of which Section 677 (page 282, Code of Ordinances) provides that all street assemblages, with certain exceptions, under which your request does not fall, are forbidden, unless a permit therefor shall have previously been obtained from the mayor.
“The letter from Mr. Brannin states that the People’s Church is planning to hold street-corner meetings this summer, • for the purpose of' discussing the application of the ethical teachings of the Bible to our modern social problems.
“No such request to use the public streets of our city has ever been received by me from any church or religious denomination. The streets are made for the purpose of traffic, open to vehicles and pedestrians, and it is the duty of the city authorities to keep the same free and clear from gatherings, impeding public travel.
“Sincé the law does not contemplate the granting, of permits for the use of our streets for a series of public lectures, either religious or economic in their nature, for which churches and halls have been built, I must respectfully decline to grant these permits.
“A copy of this letter has been sent to Mr. Carl Brannin. executive secretary of the People’s Church.
‘ ‘ Very respectfully,
“(Signed) Frederick S. Spiegel,
“Mary or-
“Mr. Herbert S. Bigelow, Leader,
“The People’s Church,
“Odd Fellows Temple.
“City.”

The petition then contains a copy of Section 677 of the ordinances of said city, as follows:

“Section 677. Street Parades. — That all street parades, processions and street assemblages occupying, assembling, or marching upon any street, lane, alley, highway, wharf or public square of the city of Cincinnati, excepting posts of the Grand. Army of the Republic, the National Guard of the state of Ohio, funeral processions and the fire and police forces of the city of Cincinnati, are forbidden, unless a- permit therefor shall have previously been obtained from the mayor. Written notice of the object, time and desired place or route of such procession, parade or assemblage, and the character, purpose and names of the officers of the same, shall be given by the chief officers thereof, together with the permit from the mayor not less than twenty-four hours previous to its forming, assembling or marching, to the chief of police, and to protect the business interests of the citizens and to prevent delay in travel, and to preserve peace and good order of the city, the said chief of police- shall designate to such procession, parade or assemblage what and how much of the streets, lanes, alleys, highways, wharves or public squares - it may occupy; and, it shall be the duty of said chief of police to furnish such escort as may be necessary to protect persons and property and maintain public peace and good order of the city.”

The petition also states that upon the receipt of said written request it became the duty of said defendant in the exercise of sound discretion to grant a permit to the relator for the holding of said meetings; that the refusal of said defendant to grant said permit is an abuse of the discretion vested in him by law, and is arbitrary and capricious; that the reasons -assigned for said refusal are trivial and. insufficient to warrant the refusal of the permit and amount’to a complete denial óf the right of assemblage and free speech on the public streets and squares, except at the whim of the defendant or his successors .in office; that other permits have been granted for said meetings by the defendant and his subordinates, to the Salvation Army, Gospel Wagon, Republican, Democratic and Socialist political parties, and to other organizations for various purposes, religious, political, commemorative and otherwise.

The relator then prays that a writ of mandamus issue to Frederick S. Spiegel, mayor of the city of Cincinnati, commanding him to grant to the relator herein a permit to hold the meetings aforesaid.

Upon the presentation of the matter to this court and upon an application for an alternative writ of mandamus, the same was allowed, returnable on June 23d. At that time the answer of the respondent had been filed, admitting the allegations of the petition as to the relation of relator to the People’s Church; admitting that the letter incorporated in the petition is a correct copy of the letter mailed to relator refusing to grant the application; admitting that the ordinance in question is a valid ordinance and that he, the mayor, has granted permits in accordance with the terms of the same. Respondent then denies each and every other allegation of the petition in man-damns, and prays that the petition of relator be dismissed at relator’s, costs.

Upon these pleadings and the issues made therein this case was tried, and on account of the nature of the ease and the dates fixed for the proposed meetings the cause was advanced and proceeded to trial upon its merits.

The command of the alternative writ issued was that said Frederick S. Spiegel, mayor of the city of Cincinnati, “do immediately upon the service of this writ grant the permits required by law to the relator herein for the holding of street meetings as requested by said relator,” “or that at the time and place of the return of this writ he show cause why he has not done so.”

At the trial respondent appeared by counsel only, and the only expression we have from the mayor throwing light upon his refusal to grant the permit is his letter to Mr. Bigelow — a complete copy of which appears above. Mr. John R. Holmes, director of public safety under appointment by the mayor, and Mr. 'William Copelan, chief of police, appeared in court and testified. Their evidence shows that prior to the formal application in writing by Mr. Bigelow a request had been made by one Carl Brannin, who is an officer of the People’s Church, which request was addressed to said Copelan and by him referred to said John R. Holmes, his superior. This request was refused by these officials, and then it was that Mr. Bigelow made the written request in full conformity with the terms of the ordinance in question. The request by Mr. Brannin to the subordinate officers named was made in compliance with a custom, or a working rule, as it was termed by witnesses, which prevails in the matter of granting these permits, under which rule scarcely any of the applications are ever brought to the attention of the mayor. A very large percentage of them are. acted upon by the chief of police and only in rare instances are they referred to the director of public safety, and much more rarely to the mayor.

Messrs. Bigelow, Brannin, Holmes and Copelan were the only witnesses called. Their evidence establishes without contradiction or dispute that Mr. Bigelow for over twenty years has been the pastor of the People’s Church; that during that time he has spoken frequently upon political, social, economic and religious questions in public buildings and on the streets of the city of Cincinnati and elsewhere. The evidence of the officers named shows that he usually draws large crowds, and it is admitted that at no time has any disturbance occurred at any of his meetings or has anything’ been done or said calculated to create any disturbance or to provoke a breach of the peace or disorder of any kind. While there is no evidence to that effect, it is a matter of history that Mr. Bigelow was selected by the electors of Hamilton county as one of their delegates to the late state constitutional convention, and that he was chosen by the assembled delegates as presiding officer of that body. His selection to that position was manifestly not on account of his being a minister of the Gospel, but rather on account of his known interest in and lifelong study of public questions social and political. So that Mr. Bigelow not only has the presumption that he intended no wrong, in his favor, but in addition thereto has the uncontradicted evidence of good citizenship and a knowledge of and ability to discuss from his viewpoint the subject or subjects indicated in his application.

These things it was the duty of the relator to establish in this ease, and the duty has been fully met.

It then became the duty of the mayor under the express command of the writ, -to show cause why the permit should not be issued. It was not necessary for him to show a cause that would appeal to or be sufficient in the minds of this or any other court; all that was necessary for him to do was to meet the issue tendered in the petition and denied by him in the answer, namely, that his action in refusing the permit was not based upon an exercise of sound discretion, but that the same was arbitrary and capricious.

The allegation of the petition that permits had been granted to the Salvation Army, Gospel Wagon, Republican,. Democratic and Socialist political parties, and to other organizations for various purposes, religious, political, commemorative and otherwise, though denied in the answer, is admitted afterwards by the city officials upon the stand, and fully established by the evidence in this case.

The evidence in fact shows that permits are granted to the Salvation Army, Gospel Wagon and different church organizations of the city without investigation or formality, and practically as a matter of course upon application, and that such permits are readily granted by the chief of police without being called to the attention of the mayor or any other superior officer. We think then that from the nature of the People’s Church, under whose auspices the proposed addresses are to be given and from the evidence as to the character and standing of Mr. Bigelow, relator has established the facts in support of his petition, which raise a presumption or reasonably give rise to the suspicion that the action of the mayor in refusing the permit was an arbitrary one and not the result of the exercise of that sound discretion which the ordinance in order to be valid must contemplate that he should exercise.

In this connection we might say that no attack is made upon the ordinance by relator or his counsel. On the contrary it is admitted by the pleadings that the ordinance is a valid enactment. But counsel for relator make such admission upon the condition that the language of the ordinance is to be given a reasonable construction and one that makes it incumbent upon the mayor to exercise discretion and not to act arbitrarily or unreasonably.

We deem it unnecessary to cite any of the numerous authorities which might be cited to show that this ordinance if construed so as to vest in the mayor an arbitrary power to grant or refuse permits at will, governed only by whim or caprice, would be absolutely void. There is nothing either in the language of the ordinance or the manifest reason for its enactment to indicate that such power was intended by council to rest with the mayor. On the other hand, the ordinance contemplates a reasonable exercise on the part, of the mayor of the power given him. It must' he regarded as merely regulatory, its chief purpose being not to limit or restrict the right of citizens to parade or assemble on the streets of the city, but. rather to advise the city authorities where, when and in what manner such things are to take place and be held. It is only when so interpreted and understood that the ordinance can be deemed a valid law.

As already stated, the letter written by Mayor Spiegel to Mr. Bigelow is the only word from him explaining the refusal to grant a permit. This letter was not offered in evidence by either side, but was referred to in argument and will be considered insofar as it has any bearing upon the issues in this ease.

The first alleged ground of refusal contained in the letter of the mayor is near the end thereof, and is couched in the following words: “No such request to use the public streets of our city has ever been received by me from any church or religious denomination.” This sentence certainly can not mean that no request was ever made to use the public streets for public meetings, but the words “such request” must have reference to the subject- of the lectures, which is given in the preceding paragraph of the letter, as follows: “For the purpose of discussing the application of the ethical teachings of the Bible lo our modern social problems.” To refuse the application upon the ground that that particular subject, or that a subject described in that precise language was never before embodied in a like request we do not regard.as a sound reason, or as indicating the exercise of a sound discretion on the part of the mayor.

Immediately following the above language we find the following statement in the letter of the mayor:

“The streets are made for the purpose of traffic, open to vehicles and pedestrians, and it is the duty of the city authorities to keep the same free and clear from gatherings, impeding public travel.”

With reference to this alleged reason we may say that we doubt very much the power of the mayor to carry out such a policy and to prevent absolutely all gatherings upon the streets. But it is admitted by the evidence in this case that no such intention is entertained nor any such policy followed by the city authorities. On the contrary, the evidence shows that permits are frequently granted for public meetings in the streets, and that, too, during seasons of the year when no political campaign is on. The nature of the organizations which enjoy these privileges has already been given and bears close relation to that of the organization under whose auspices and for whose benefit this permit was requested.

Next, the mayor contends:

“Since the law does not contemplate the granting of permits for the use of our streets for a series of public lectures, either religious or economic in their nature, for which churches and halls have been built, I must respectfully decline to grant these permits. ’ ’

Wc. are not sure of the mayor’s premise from which the conclusion in this last paragraph is drawn. We have made careful examination of the authorities upon the question, both those cited by counsel and others which have come to our attention, and we are not prepared to say with the mayor that the law does not contemplate the granting of permits for the use of our streets for a series of public lectures either religious or economic in their nature. Tn this connection we will cite a feAv authorities only.

In the case of Anderson v. Wellington, 40 Kansas. 173, the question involved the constitutionality .of a city ordinance which made it a misdemeanor punishable with fine or imprisonment or both, for any organization to parade in any public streeet shouting, singing or beating drums or tambourines, etc. The court held such ordinance void, as it was not a reasonable regulation to vest the power arbitrarily in the mayor to grant or refuse the permission to parade the streets for lawful or meritorious purposes.

In Chicago v. Trotter, 136 Ill., 430, the court said.-

“Parades and processions upon the streets of the city, are not necessarily productive • of danger and disorder so as to render them per se the creators of public disturbances, nor are they necessarily nuisances. There is no authority, therefore, in the municipal corporation to suppress such demonstrations of all kinds, at all times and under all circumstances. Citizens have the constitutional right of pursuing their own happiness, and on suitable occasions and for lawful purposes, and in a peaceable manner they may gather together in street parades and processions if they so desire,” etc.

In the case of Rich v. City of Naperville, 42 Ill. App., 222, the court in the syllabus of that case held:

“1. Ordinances to be valid must be reasonable; they must not be oppressive; they must be fair and impartial, and not so framed as to allow their enforcement to rest in official discretion.
“2. Where public parades and demonstrations whether religious or political, do not threaten the public peace, or substantially interfere with the rights of others, every measure repressing them, whether ‘by legislative enactment or municipal ordinance, is an encroachment upon fundamental and constitutional rights.
“3. Upon proceedings against members of the Salvation Army, for the breach of an ordinance prohibiting the parading of streets by any organization without first securing the permission of-the city council, this court holds the same to be void, upon the ground of its being unreasonable, oppressive and so framed as to allow its enforcement to rest in unregulated official discretion. ’ ’

And in the opinion of the same case the court uses this language :

“Ever since the landing of the Pilgrims from the Mayflower the right to assemble and worship according to the dictates of one’s conscience, and the right to parade in a peaceable manner and for a lawful purpose, have been fostered and regarded as among the fundamental rights,of a free people. The spirit of our free institutions allows great latitude in public parades and demonstrations, whether religious or political, and if they do not threaten the public peace, or substantially interfere with the rights of others, every measure repressing them, whether by legislative enactment, or municipal ordinance, is an encroachment upon fundamental and constitutional rights.”

The Michigan Supreme Court, in the ease of Andrew Frasee, 63 Mich., 396, on page 404 uses the following language:

"It has been customary from time immemorial, in all free countries, and in most civilized countries, for people who are assembled for common purposes to parade together, by day or reasonable hours at night, with banners and other paraphernalia, and with music of various kinds. These processions for political, religious and social demonstrations are resorted to for the express purpose of keeping up unity of feeling and enthusiasm, and frequently to produce some effect on the public mind by the spectacle of union and numbers. They are a natural product and exponent of common aims, and valuable factors in furthering them. They are only found to any appreciable extent in places having collected inhabitants, for spectators are generally as important as members. They are among the incidental conditions of city life, and are as much to lie expected, on suitable occasions, as any other public meetings, and not necessarily any more dangerous.”

And on page 405:

“Tt is only when political, religious, social, or other demonstrations create public disturbances, or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, that the law interferes.”

Space forbids further citations, but innumerable quotations could be made from eminent authorities to the same effect as those above given.

We therefore can not concur with the judgment of the mayor that “the law does not contemplate the granting of permits for the use of our streets,” etc. On the contrary we believe that the law does contemplate such permits, and that they should be granted with great freedom and with little formality, and refused only in eases where disorder and lawlessness might be well considered the natural result of the permit sought, or unless other good cause be shown why they should not be granted. The granting of' permission should never depend upon the attitude of the one in whom the granting power is vested to ward the applicant or the cause advocated by him.

A fair and interesting discussion of the principles involved in this case will be found on page 858 or the 19th Volume of the Lawyers’ Reports Annotated.

We, therefore, are of the opinion that the allegations of the petition, that there was no sound discretion exercised and that the refusal was made arbitrarily, have been proven by the evidence in this case, which upon this point stands uncontradieted. Not a word has come from the respondent during the trial of this ease by way of explanation. We think that we have shown that the alleged reasons contained in his letter to Mr. Bigelow are not sufficient. They are inconsistent with the conduct of the mayor in granting permits, and in no sense, either severally or collectively, constitute any ground for a denial of the natural and ever zealously guarded right of free speech and the right to assemble.

As already stated, Mr. John R. Holmes, director of public safety, appeared and testified in this case on behalf of the respondent. Under our municipal code he occupies a position of much responsibility, is an appointee of the mayor and in the nature of things is in close contact with the executive officer of the city, being at the head of the police and fire departments. The matter of granting this permit was referred to Mr. Holmes, as before stated, by Chief Copelan. The only reason given at the time, by Mr. Holmes, for his refusal to grant the permit, was that it seemed to him to be an ‘ ‘ I. W. W. ’ ’ proposition. He was questioned about this on the stand, and was asked whether or -not he believed Mr. Bigelow to be a member of the I. W. W. His answer was that he had no reason to disbelieve it. His evidence and demeanor on the stand plainly showed him to be very strongly prejudiced against Mr. Bigelow for- some reason. He admitted that although he had been a resident of the city of Cincinnati during all the years that Mr. Bigelow has been so conspicuous as a preacher and public speaker, he had never heard his voice until he heard it in this court room. The evidence in the ease plainly shows that the action of Mr. Holmes, therefore, in declining to issue the permit was purely arbitrary and prompted by ill-will towards Mr. Bigelow or some principle or cause which he advocates, or both. Mr. Plolmes was fair about this, and made no attempt to conceal his feeling. Whether or not this feeling is shared by the mayor we do not know; but Mr. Holmes ivas brought here on behalf of the mayor, and we think it only fair to assue that the reasons given by him, or rather the want of reasons shown by him for refusing the permit, must be to same extent imputed to the mayor.

There being no valid or sound reason shown why the permit was refused, and the respondent having failed to show any proper reason for said refusal, the prayer of the petition will be granted and a peremptory writ issued in accordance therewith.

      Not in Cincinnati; therefore no permit required.


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    INJURY OF AN EMPLOYEE WHILE INTOXICATED.
    Court of Appeals for Lucas County.
    William J. Barrett v. Pere Marquette Railway.
    Decided, January 5, 1914.

      Muster and Servant — Ordinary Oare Required of an Intoxicated Employee — notice to the Employer of His Condition.

    Voluntary intoxication will not relieve an employee from the duty of exercising such ordinary care to avoid injury to himself as is required under like circumstances from sober men.

      G. B. Keppel, for plaintiff in error.

      J. H. Tyler, contra.
    Richards, J.; Kinkade, J., and Chittenden, J., concur.
    In the court of common pleas WUlliam J. Barrett brought an action to recover damages for the loss of an arm, caused, as claimed by him, on account of the negligence of the defendant company while he was in its employment as a yard switchman at Flint, Michigan. The injury, occurred about 11 o’clock at night on December 11, 1909. At the conclusion of the evidence offered on behalf of the plaintiff, the trial judge directed the jury to return a verdict in favor of the defendant company, which was done, and- judgment entered accordingly.
   It appears from the evidence in the case that when Barrett went to the yards of the company in Flint to go on duty, about (i:30 o’clock in .the evening of December 11, he was in an intoxicated condition, and that fact was known-to his superior officers. Shortly after that hour he was directed by Grant, the yard conductor of the crew, to go into the yardmaster’s office and lie down, which he did. About 9:00 o’clock at night, while he was still in the yardmaster’s office, the telephone rang, lie answered it and was told over the telephone to get out a.nd go to work. It does not appear that Mr. Sharroek, who gave that order over the telephone and who was the night ya.rdmaster, Lad knowledge that Barrett was intoxicated at that time. It appears from the testimony of Mh.\ Grant that when Barrett came back to work he said to the engineer, ‘ ‘ I am going to let the brakes off,” and that he then started to go on top of the ear for that purpose. Grant states in reply to an inquiry as to what Barrett’s condition was as to being intoxicated, that he couldn’t say, that he was not very close to him then. Barrett, following his statement that he was going to let the brakes off, climbed to the top of the freight car next to the engine. He says that in attempting to release the brake he fell off the top of the car and that his arm was run over by a passing freight train on an adjacent track. He furnished to the company on January 24, 1910, a’ statement in writing of the circumstances of his injury, in which statement he says:

‘ ‘ I was letting brakes off cars and came to one that was pretty tight and was swinging on brakes and had to kick the dog, and when the dog let go the ratchet, there was so much pressure on brake that it came around so quickly that it threw me off car and fell under moving cars on next track.”

He also says in this written statement that the accident was not caused by any bad condition of the tools or machinery and that no person was at fault. Nowhere in the testimony of the plaintiff does he attempt to explain or contradict the written statement made by him and furnished to the company within a few weeks of his injury. He does say, however, in his testimony, that after he climbed to' the top of the car he had no knowledge of what occurred, until after his injury, and that the first thing he recalled after the injury was his trying to get on the engine, not knowing that his arm was off.

The rule of law as .to the contributory negligence of an intoxicated person has been often laid down by the courts and is not susceptible of doubt. It is well stated in 29 Cyc., 534, as follows :

“The condition produced by intoxication being voluntary does not relieve the person injured from the-necessity of exercising the ordinary care to avoid injury required under like circumstances of a sober man. Intoxication alone is not a bar to recovery, unless by reason of such intoxication he fails to exercise the ordinary care of a sober man, or is unable to take the proper precautions to avoid danger. Yet intoxication in any degree is a circumstance to be considered in determining the question of contributory negligence.”

Also to the same effect is Vizacchero v. Rhode Island Co., 26 R. I., 392.

The evidence in this record leaves no room for doubt that the plaintiff was guilty of contributory negligence directly producing his own injury. It is said, however, that notwithstanding this he may recover because of the claim that the defendant company had knowledge of his ■ condition, and much reliance is placed by counsel for plaintiff on the case of Parker v. Railway, 83 Minn., 212. In that case there was no notice or knowledge of the condition of the employee conveyed to the company, and the court said that it assumed, without deciding, that if the conductor or brakeman was fully apprised of the intoxicated condition of the deceased and his consequent peril, it was his duty to take active and reasonable measures for his protection. Whatever may have been said on that matter in the course of-the opinion would naturally be obiter d.ictum. We are not, however, disposed to quarrel with the rule stated if it be construed to mean that the company be rendered liable if it first had knowledge that its employee was in such a state of intoxication as to be unconscious of his own danger or unable to protect himself from injury.

The evidence in the case at bar does not show that the defendant company had knowledge that the plaintiff was, at 11 o’clock at night, in such a helpless or unconscious state of intoxication as rendered him unable to appreciate danger or unable to protect himself therefrom. Tt appears from the evidence that the plaintiff did in fact, know the conditions surrounding him in the company’s yard. He knew that his engine was coupled to cars, was on the set-off track and that the brakes were set. He knew that it was his duty to go on top of the cars that were fo be switched, and that the ears could not be moved until the brakes had been released. 'lie knew, without being told, that it was his duty to go on top of the cars and release the'brakes, and he had the ability to climb on top of the cars for that purpose and did so voluntarily. We think it plain from the evidence fhat the defendant- did not have such knowledge as to the condition of the plaintiff, at 11 o’clock at night* as required it to conduct itself in any different manner from what it did on the occasion under inquiry, and that therefore it does not appear that the defendant was guilty of any actionable negligence. We are satisfied from the whole case, as contained in the record, that substantial justice has been done, and the judgment of the court of common pleas will be affirmed.

Judgment affirmed.


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    DESIGNATION OF A CASE AS ONE FOR AN ACCOUNTING DOES NOT MAKE IT APPEALABLE.
    Circuit Court of Cuyahoga County.
    James R. Goldson v. Amanda S. Corlett et al.
    Decided, April 3, 1908.

      Appeals — What Gases Not Appealable.

    1. Where an action was brought against several parties asking reconveyance of property as to certain parties and a judgment for the value of the property as against others in case reconveyance could not be decreed, and the parties against whom reconveyance is asked are dismissed from the case before its submission to the court. Held: That what remained was an action for money .only and not appealable.
    2. The fact that an action is designated an action for accounting and equitable relief will not make it appealable, when it is in effect an action for money only.

      A. H. Martin and. A. T. Hills, for plaintiff in error.

      Burton & Dahe, contra.
    I-Ienry, J.; Winch, J., and Marvin, J., concur.
    This is an appeal from the judgment of the court of common pleas in an action to avoid conveyances, under favor .of Section 5404, Revised Statutes, and for other relief. The petition alleges that in February, 1894. certain lands of plaintiff were sold at sheriff’s sale to John Gallagher, one of the defendants herein, who, with his wife, shortly afterwards conveyed the same to Lawrence Sinnott, also a defendant herein. Sinnott had been one of the appraisers, under whose valuation of the land in question the sheriff’s sale took place. In December, 1898, Sinnott reconveyed an undivided half interest in this land to the said John Gallagher, who, with his wife, a few days later joined with Sinnott, and the latter’s wife, in a conveyance of the property to William T. Corlett, who, in turn, quit-claimed the same to Amanda S. Corlett.
   The petition alleges that Sinnott and Gallagher conspired together to enable the former to acquire the- property, or an interest therein, in defiance of the prohibition of said Section 5404, prohibiting the purchase of propeiW at an official sale by one who appraised the same for the purpose of such sale.

The decree of the court of common- pleas, rendered January 8, 1908, is as follows:

“Jan. 8, 1908. To Court. .This cause'came on to-be heard upon the pleadings and evidence, and during the trial the plaintiff dismisses his action as to the defendants, Amanda Corlett and William T. Corlett, at plaintiff’s costs, for which judgment is rendered against him. And after due trial said cause was submitted to the court on the pleadings and evidence, on consideration whereof, the court finds on the issues joined, for the remaining defendants, and the petition is dismissed. It is therefore considered that said remaining defendants go hence without day and recover from said plaintiff their costs herein. Judgment is rendered against said plaintiff for his costs herein. The amount of the bond for appeal herein is fixed at the sum of $100.”

At the outset of the trial in this court, the defendants Gallagher and Sinnott, being the only defendants left in the ease, moved for a dismissal of the appeal for want of jurisdiction upon the ground that the action below was triable to a jury.

The prayer of the petition concludes with these words:

“That if for any reason the court should find the plaintiff not entitled to any relief against the said defendants William T. Corlett and Amanda S. Corlett, then and in that case the court order the said defendant Lawrence Sinnott to account to plaintiff for the full value of said property in addition to his accounting for the use and occupation and profits of same foi\ that period of time during which the court shall find his use and' occupation of said property continued, and for judgment accordingly; and for all other and further relief proper in equity.”

In Grapes et al v. Barbour et al, 58 O. S., 669, it is said in the opinion of the court, by Shauck, J., at page 675:

“Whether the case is appealable is to be determined from the nature of the issues when it was submitted in the court of common pleas.”

The transcript here discloses that “during the trial the plaintiff dismisses his action as to the defendants, Amanda Corlett and William T. Corlett,” whence it appears that the time the cause was submitted in the court below, the actual restoration of the land was no longer sought.

In Doney v. Clark, Admr., 55 O. S., 294, it was indicated in the fourth paragraph of the syllabus and at page 305 of the opinion of the court by Shauek, J., that:

“This was an action for the recovery of money only. In view of the fact that the fraudulent grantee had conveyed a valid title to the subject of the trust no decree in equity was needed or sought. Although the principles upon which recovery was sought may be of equitable cognizance, neither party is entitled in an action for the recovery of money only, to have the issues determined by a jury. ’5

In Gunsaullus, Adm’r, v. Pettit, Adm’r, 46 O. S., 27, it was said in the opinion of the court, by Minshall, J., at pages 28, 29:

“The suit below was brought by the administrator of a deceased wife against the administrator of her deceased husband, and sought to charge his estate with a claim for money had and received by him in trust for her. * * * The fact that prior to the code the only remedy would have been a suit in equity, does not affect the right of either party to demand a jury trial upon the issues of fact joined in the action. * * The case then was not appealable and the circuit court erred in not sustaining the motion to dismiss the same.”

The right to demand a jury trial in the court below when the cause was finally submitted was thus not precluded by the fact that the cancellation of a fraudulent conveyance had originally been demanded and afterwards abandoned, nor by the fact that the ease in the posture which it then assumed called for the ascertainment of a trust as the basis upon which a judgment fpr money only could be rendered. Nor did the fact that an accounting was demanded necessarily require the awarding of equitable" relief, in case the plaintiff' prevailed.

In Black, Receiver, v. Boyd, 50 O. S.. 46, in the opinion of the court by Bradbury, J., at page 52, it is said:

“The circumstances that will warrant a court of equity to assume jurisdiction in matters of account have long been the subject of discussion by courts of- the highest authority. Where the accounts are mutual and complicated to a degree that makes their examination by a jury difficult and unsatisfactory, equity will generally assume jurisdiction, though no rule of certain application can be laid down. The court should be satisfied of the inadequacy of proceedings at law'to do justice between the parties. The doctrine is discussed, and the jurisdiction of equity, in the case of complicated mutual accounts, has been sustained by most, if not all, of the authors of the text books upon the subject of the jurisdiction of courts of equity.”

In the ease before us, it is not urged that there was either complication or mutuality in the accounts with respect to which relief is demanded. Nor is there anything in the nature of the case to indicate inadequacy of legal remedy. In Bricker v. Elliot, Administrator, 55 O. S., 577, it was held in the syllabus:

“A suit to compel a trustee to account to the beneficiaries of his trust and for a judgment for the amount which, upon such accounting, may be found in his hands is not an action for the recovery of money only; and from the judgment of the court of common pleas in such action either party may appeal to the circuit court.”

But in the opinion of the court by Shauck, J., at page 579, it was said, concerning actions for money:

“The adjudications of this court determine that, if the action is for that purpose only, it is triable by jury even though the principles upon which a recovery is sought are equitable in their nature and origin. They also determine in those cases which are triable if the remedy of accounting in equity is not necessary to full and adequate relief even though disclosures from the defendant may be desired. ’ ’

It is further said at page 580:

“In the original petition the plaintiff did not allege an indebtedness for a definite amount due from the defendant. ITe alleged facts which excused him from doing so, by showing that, although the parties were adversary in the suit they'had not been so in the transactions out of which it arose.
“The case alleged showed that the defendant was a trustee; that in consequence of the trust and confidence reposed in him by his mother, he was in possession of funds belonging to her, whose amount he knew and she did not. The case was not for money only. It invoked the exercise of equitable jurisdiction to 'compel the trustee to render an account necessary to the ascertainment of the amount due, and for a' judgment for that amount when ascertained.”

The case before us is not the case of an express trust, but of a resulting trust, formerly cognizable, it is true, in equity alone, but no longer triable as of right without a jury if the ultimate relief sought is a judgment for money only. Chapman v. Lee, 45 O. S., 356.

In Lange v. Lange, 69 O. S., 346, the syllabus is as follows:

“In an action for money, not requiring a decree granting some mode of equitable relief, an appeal can not, under Section 5226, Revised Statutes, be taken from the court of common pleas to the circuit court, although the determination of the rights of the parties may involve the application of principles which are of equitable origin and nature.”

And at page 349 in the opinion of the court by Shauck, J., it is said:

“However uniformly it may appear that appealable actions are equitable the Legislature has not used appropriate terms to make all equitable actions appealable. AVhile the constitutional requirement that the right of trial by jury shall remain inviolate has been effective to continue that right in all cases which were triable to a jury at the time of the adoption of the Constitution, it has not prevented, nor was it intended to prevent, the extension of the right of tidal by jury to cases which were not so triable at the time of the adoption of the Constitution; and every ease included in such extension of the right of trial by jury is’thereby excluded from the category of cases appealable, however clearly it may appear that the rights of the parties depend upon the application of principles which are of equitable origin and nature.”

It is true that there is language used in many earlier cases which seems somewhat at variance with the conclusions we reach in this case, notably in Pierce, Assignee, v. Stewart, 61 O. S., 422; Raymond v. Railway Company et al, 57 O. S., 271; Hull et al v. Bell Brothers & Co., 54 O. S., 228; Gill et al v. Pelkey et al, 54 O. S., 348; National Bank v. Wheelock, 52 O. S. 534; Ellsworth v. Holcomb et al, 28 O. S., 66; Rowland v. Entrekin, 27 O. S., 47; Converse v. Hawkins, 31 O. S., 209; Rankin v. Hannan, 37 O. S., 113; McCrory v. Parks, 18 O. S., 1; Reed’s Administrator v. Reed et al, 25 O. S., 422, and many others.

None of these eases have been overruled and we think they are all distinguishable from the eases above discussed. While the matter is not entirely free from doubt, we look upon the case before us as one where.the right to demand a jury in the court of common pleas existed. Therefore, the action was not appealable, and the motion to dismiss the appeal for want of jurisdiction is granted.


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    LIABILITY OF HUSBAND FOR. GOODS PURCHASED BY HIS WIFE.
    Circuit Court of Cuyahoga County.
    Leo W. Lederer v. W. J. White.
    Decided, March 28, 1908.

      Husband and Wife — Necessaries.
    1. A husband who suitably supplies his wife with necessaries, or with the money to purchase them, will not be held liable, on the basis of a presumption of authority or of an implied agency, for goods purchased by her on his credit, without his knowledge or consent, of one with whom he had no previous dealings, though the goods be of the quality of necessaries.
    2. A tradesman supplies goods to the wife at his peril when the husband is guilty of no neglect of duty in the premises, and when, consequently, there can be no necessity for her purchasing on his credit.

      Howland & Niman, for plaintiff in error.

      Clifford B. Haskins, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   Plaintiff in error sued before a justice of tlie peace for necessaries furnished to the wife of defendant in error while living separate and apart from her husband in the family homestead. He recovered a judgment, which on error to the court of common pleas was reversed, and thereupon, the case being retained for trial, as required by statute, trial by jury was waived and upon evidence the court rendered judgment for the defendant. The error assigned is that the judgment is not supported by the evidence and is contrary to law. Two questions are thus raised; first as to the authority of the wife to bind her husband for necessaries purchased by her when she is already amply supplied by her husband with the means to purchase the same, as is shown by the evidence to be the case here, and secondly, whether the husband has not in fact ratified the claim made against him here in that the entire principal of the account, interest whereon is the subject-matter of the present action, was paid- out of moneys received from -him and held by his attorneys for the settlement of his wife’s pecuniary claims against him.

We do not think the evidence of ratification is such as to warrant us in reversing the judgment ol! the court of common pleas for that reason. The circumstances of the payment made with the husband’s funds are quite consistent with the theory that it was solely the wife’s obligation and not his own that the husband-was paying.

Upon the other question there is a surprising’ dearth of authority, and among what few decisions there are directly in point there is much contrariety. We think, however, the better rule is laid down in Clark v. Cox, 32 Mich., 204, wherein the fourth and fifth paragraphs of the syllabus are as follows:

‘ ‘ A husband who suitably supplies his wife with necessaries or with the money to purchase them, will not be held liable, on the basis of a presumption of authority or of an implied agency, for goods purchased by her on his credit, without his knowledge or consent, of one with whom he had no previous dealings, though the goods be of the quality of necessaries.
“A tradesman supplies goods to the wife at his peril when the husband is guilty of no neglect of duty in the premises, and when, consequently, there can lie no necessity for her purchasing on his credit at all.”

The judgment below is affirmed.