text:
    CONSTRUCTION OF THE ONE PER CENT. LIMITATION ON MUNICIPAL BOND ISSUES.
    Circuit Court of Lucas County.
    Harvey P. Platt, a Tax-Payer, on Behalf of the City of Toledo, v. The City of Toledo et al.

    Decided, November 18, 1908.

      Municipal Corporations — Limitations of Bond Issues — What Bonds May be Excluded in Determining Whether Limitation has been Reached —Bridges—Validity of Ordinance Providing for Less than a Completed Structure — Intention to Complete the Structure — Sections 2835 and 2835b.

    1. A. municipal council has power and discretion to authorize contracts to be entered into and to issue bonds for the completion of parts of a bridge over a navigable river within the municipal limits without making provision for the construction of a draw or other method of spanning the river. The fact that an expressed intention to complete the bridge is revokable will not defeat the exercise of such power.
    2. An issue of bonds amounting to $525,000 by a city having an aggregate of $370,000 of bonds authorized and a tax valuation of $79,-000,000, will not be deemed as in excess'of the 1 per cent, aggregate limitation prescribed by Section 2835,- Revised Statutes, if in view of the modification of Section 28350, eliminating all bonds issued prior to April 29, 1902, wjhether they be original bonds to provide for payment for construction of water works or bonds to refund indebtedness created by such original issues, the proposed issue added to that already authorized not within the excepted b.onds, does not exceed the prescribed limitation.

      B. A. Hayes, for the plaintiff.

      C. S. Northup and J. P. Manton, contra.
    Wildman; J.; Parker, J.,and Kinkade, J., concur.

       Affirmed by the Supreme Court, without report, Platt v. Toledo, 80 Ohio State, —.

   This case is one of so much importance to the litigants and 'to the - community .as to invite a larger discussion .of the issues involved than I feel justified in entering into; indeed I shall refrain from any elaborate review of-the very able arguments of counsel and the computations and estimates made, because of what seems almost certain, that whatever decision may be rendered by this court will not bo a finality — in other words, the ease will almost inevitably go to' the Supreme Court of the state for final review. I assume that, because of the large interests involved and the importance of the questions presented. The case is in this court upon appeal, it having been instituted in the court of common pleas by ITarvey P. Platt to enjoin the issue of city bonds to the amount of $525,000 for the construction of a bridge — or what is claimed upon one side, to be a part of a bridge — across the Maumee river in this city.

It is said that there are two substantial reasons why this issue shotild be enjoined: first, that by the issue of such bonds, coupled with .other bonds authorized by the city during the current year of 1908, the limit of one per cent, of the taxable value of property 'of the city will be- exceeded; and also that there is no authority given 'by law for the issue of bonds to construct anything but a completed bridge.

As to the. second of these propositions just recited, this court has already expressed its view in a previous suit instituted by this same plaintiff against the city to enjoin the issue of other bonds for this same structure. In that case, the opinion in which was announced by Judge Kinkade, it was said, in substance, that the court saw no reason to hold that the contention of the plaintiff in that regard was correct. The matter has, however, been very ably re-argued, and in courtesy tó counsel, the arguments might receive some additional attention notwithstanding the opinion which has already been expressed and the decision which has been rendered by this court. But the question was just as completely involved in the former case, of course, as in the present one, and we are disposed to adhere to the views therein expressed.

It is true that it may not be within the purview of the statute to authorize a' municipality, under the guise of constructing a bridge, to issue bonds for the construction of something which is not a bridge, and we do not quarrel very much with the definitions offered by counsel for plaintiff of the term‘“bridge.” There is, however, in the ordinance passed by the city council in evidence before us, a very clear expression of an intention that a complete bridge, including a draw, or some other means of spanning the stream, shall be constructed; and it is apparent that the present issue of bonds was limited to the sum of $525.-000, an amount insufficient for the construction of an. entire bridge, including a draw • or other means of completing the structure, because of the requirements of the statute that the limitation of one per cent, shall not be exceeded, or perhaps because of the desire of the council to protect the city against any unnecessary. payment' of interest upon its bonds until the time shall arrive when it -is necessary to make payments for a completed-structure. It is said that the intention, so expressed-in this ordinance, is in no wise binding, upon either the present council or future councils — that it is revokable, and that -there should be something in addition to it in the way of authorization of the board of service to construct an entire bridge; but we are inclined to think that the- expression of the intent of the legislative body of the city in the present case is no more revokable than- was, the apparent authorization to the board of service given for the construction and extension of a filtration plant, the facts concerning which are recited in Yaryan v. Toledo, 8 C. C.—N. S., 1. In that case, it is true, there was not only a section expressing the intention of the council that an entire filtration plant should be constructed, but also an expressed authorization to the board of service to construct; but this authorization was more apparent than real, because the board of service was powerless to act until the means were provided for the carrying out of -the contracts into which it might enter. The contracts themselves would be of no validity until the funds were provided for carrying out the obligations thereby incurred. On page- 26 of the opinion- announced by my associate, Judge Parker, in the Yaryan ease, supra, after quoting the expressions in the ordinance of claimed authorization to construct the-entire plant, this language is used:

"This, we think, is within the power and the discretion of the council. Of course, such plans might be defeated by the subsequent action of the council or by another council, because one council can not bind its successors, and the whole plan might be overturned in so far as its overturning would not interfere with contracts lawfully entered into or other vested rights.”

It does not appear that the expression of an intention to build an entire bridge is any more revokable at the instance of the present council, or any subsequent one, than was the expression of intention and apparent authority in the Yaryan case, and we are disposed to apply the principle of that case to the present one, and to hold that the 'council in exercising the power conferred upon it by law and in the protection of’ the best interests of the city of Toledo, may authorize contracts to be entered into and provide the means for their fulfillment, for the completion of parts of such structures as the statute says they may provide means to pay for, by the issue of bonds or otherwise. We think that this contention that the council was powerless to'issue bonds for the construction of a bridge without making provision for the construction of a draw or other method of completely spanning the stream, should not be sustained, and we adhere to the decision made in this respect upon the other trial between the same parties.

As to the other issue — whether the attempted issue of $525,000 of bonds, added to the amount of other bonds authorized -to be issued during the year -1908, exceeded the limit established by the statute — the question is to be determined by the consideration of the various estimates of values, the figures given us as to the issues of other bonds in connection with certain qualifications of the statutory limitation found in Section 28355 of the Re-vised Statutes. There are several sections which touch more or less directly upon the questions under consideration. Without reading them, I may cite Revised Statutes, 2835, 28355, 1536-523, and an act for the issue of refunding bonds, 1536-282.

I have before' me notes of the agreed amounts of bonds issued in the several years prior to 1908, together with those authorized to be issued during the present year. There is an aggregate, of $370,000 of bonds authorized to be issued in 1908 besides the issue now sought to be enjoined, making a total of $895,000. It. is agreed that’ the valuation of the city property does not .exceed $79,000,000, one per cent, of which would bo $790.000, so that if the qualifications in the section to which I have referred — 28356—do not decrease the amount of the bonds below the present amount authorized, there is no question that the issue would be in excess- of the limitation allowed, and the decrease would have to be to a total amount of not to exceed $790,-000. I will not -tarry long upon a discussion of the construction of Section 28356, but -will simply express my own opinion — and probably that of the other members of the court — that sufficient emphasis has not been placed, in -argument, upon the last clause or two of Section 28356, and especially the expression of what is to be considered in arriving at the limitation therein provided. To make intelligible the view -at which we have arrived, it -is necessary to read this section:

" Provided, further, that the limitations of one per -cent, and four percent, prescribed in Section 2835, R. S., shall not be construed as affecting bonds issued under authority of said Section 2835 upon the approval -of the electors of -the- corporation; nor shall bonds which are to be paid for by assessments specially levied upon -abutting property; nor bonds issued for the purpose of constructing, improving and extending water works when the income from such water works is sufficient to cover the cost of all operating expenses, interest charges and to pass a sufficient amount to a sinking fund to retire such bonds when they become due, nor any bonds issued prior to the passage of Section 2835, R. S., as amended April 29, 1902, be deemed as subject to the provisions and limitations of said section, or be considered in arriving at -the limitations therein provided.”

Without going over the mass of figures submitted to us, I invite especial attention to the language which I have now read, in the closing -part of this section: “Nor [shall] any bonds issued prior to the passage of Section 2835, R. S., as amended April 29, 1902, be deemed as'subject to the provisions and limitations of said section, or be considered in arriving at the limitations therein provided. ’ ’

It seems to us that there is no escape from the conclusion that in determining the one per cent, of the tax valuation of property in the city, or rather, in determining the amount of bonds which may be issued under the limitation, all bonds issued prior to the amendment of Section 2835, on April 29, 1902, should lie excluded, whether they be original bonds to provide payment for the construction of water works, or bonds to refund indebtedness created by such -original issues, and under- that view, if we understand aright the contention of counsel for plaintiff, they substantially concede that the limit of one per cent, is not exceeded by the issue of $525,000 of bonds added to the bonds already authorized for 1908, when the amount of the bonds for water works purposes is .taken with the qualification that such bonds shall not be considered when the revenue from the water works rentals is sufficient to provide for the Expenditures, maintenance and repairs and to pay the interest on the bonds and provide a sinking fund for'their payment at maturity. I do not care to go into the figures which led to the agreement and concession which have been made in the case. The amount of the bonds issued prior to the date of the amendment of Section 2835 referred to in the statute, should be, as I' have said, eliminated from our enquiry, and taking the bonds issued subsequent to that date — i. e., to the' amending of that section — the income derived from the water works in 1907, to-wit, $204,000, would be sufficient for the purposes expressed in the statute so as to prevent the application of the amount of issue of water works bonds in 1908 — $230,000—upon the aggregate amount permissible under-the statute.

The conclusion at which we arrive is, that the plaintiff’s contention that the council is exceeding the issue permitted by Section 2835 and Section 28356, is not maintained; and, entertaining .these views as to both of the questions presented, we can arrive at n-o other conclusion than that the -plaintiff’s petition should be dismissed, and such will be the judgment.


source: Caselaw Access Project

license: Public Domain

text:
    NEGLIGENCE ON PART OF MUNICIPALITY.
    Circuit Court of Hamilton County.
    Cecelia Cavey v. City of Cincinnati.
    Decided, June 19, 1909.

      Dangerous Sidewalk — Bordering pn Unguarded Wall Over which a Pedestrian Might Fall — Liability of the Municipality — Pleading-Variance — Interrogatories. ‘

    Where a street and.sidewalk run so near an unguarded retaining wall as to create the impression that the wall is within the line of the sidewalk,' the municipality is liable for injuries sustained by á pedestrian who fell over the wall; and a variance between the . . ■ allegations of the petition and the proof as to the location .of the . wall.is not material. .

      Charles F. Williams and Outcalt & Hickenlooper, for plaintiff in error.

      Albert H. Morrill, for the city.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   Interrogatory No. 1 when strictly construed is not relevant to the issues and is misleading. It is as follows:

•“Was the sidewalk within the limits of the lines of Oregon street, at the place where the plaintiff was injured, in a reasonably safe condition for travel in the ordinary modes ? ’ ’ Answer: “Yes.” ......

This was equivalent to asking the jury whether a traveler or footman who kept within the limits of .the lines of the street 'would, be safe. No .such'issue was presented, by the pleadings. The danger lay not within the lines of, the street, but adjacent, and consisted of a precipitous retaining wall, over which a footman using the sidewalk-in the ordinary'way 'might -fall, not because within' the lines of the street, but bebause So near them that such result might and would be reasonably anticipated:

Interrogatory No. 13 is as follows:

“Was the street and, sidewalk within the limits of Oregon street, at the point where and at the time when plaintiff 'ivas injured, dangerous under ordinary circumstances to persons using' ordinary care to-keep upon the proper path?” Answer: “No.”

Strictly speaking neither the street or sidewalk was in itself dangerous, but the nearness of the sidewalk to a steep unguarded wall made it dangerous for use in 'the ordinary mode.

The answer to interrogatory No. 14 that the city had no notice of the dangerous condition is nob material, as it existed so long that the law presumes notice.

The answers to interrogatories- 2, 5, 6, 11 and Í2 are consistent with the general verdict in favor of the plaintiff, ’and determine the essential facts in issue. It follows therefore that the court erred in rendering judgment for the defendant.

The variance between the allegation of the. petition and the proof of the location of the wall is not material- because to the ordinary observer it was a part of the sidewalk and within the limits of the street, although in fact without. The liability of a municipal corporation for not guarding against a danger so near the sidewalk is recognized in the case of Kelley v. City of Columbus, 41 O. S., 263.

Judgment reversed and judgment for plaintiff in error on the authority of Cincinnati Gas & Electric Co. v. Archdeacon, Administrator, 80 O. S., -.


text:
    JUDGMENTS-EXECUTION — LIEN—PRIORITY—SECTION 5415.
    Circuit Court of Hamilton County.
    Humphreys v. Schlenk et al.
    Decided, June 26, 1909.
    Where the levying of., execution .on a judgment is delayed for. more than one year, the.judgment creditor while retaining his lien loses his priority to a subsequent judgment under which execution was levied upon the land of the debtor'within one-year.

      Morison R. Waite, for plaintiff in error.

      Owen. N. Kinney, for defendant in error.

      Swing, J.; Giffen, P. J., and Smith, J., concur.
   This is a question as to priority of liens. Schlenk’s judgment is prior in time and is a lien on the lands in controversy, but not having been levied on the lands of the debtor within one year from the time of the rendition of the judgment under the provisions of ' Section 5415, it lost its priority to- the judgment' of Humphrey’s, which was rendered subsequent and which was levied on the lands in question. 3 O., 135-6; 2 O. S., 36;' 7 C: C., 285.


text:
    OFFICE OF CERTAIN MOTIONS AND DEFENSES.
    Circuit Court of Hamilton County.
    Sid Black et al v. Wm. A. Goodman, Jr., trustee, et al.
    Decided, June 19, 1909.

      Pleading — Motion for Judgment and to Malte more Definite and Certain . —Good Faith in the Filing of Answer or Gross-Petition not 'Material; When-^-Frror.

    1. While the overruling of a motion to make definite and certain may constitute reversible error, the question whether or not the overruling was proper can not be determined on a motion for judgment, • but only on a petition in error.
    2. The object of a motion to strike from the files is to test the correctness of its form or -the regularity of its filing; and i if an answer contains a good defense or a cross-petition a good cause of action, it is immaterial whether or not it was filed in good faith, or for purposes of delay only.

      Murray M. Shoemaker, for plaintiff in error.

      Healy, Ferris & McAvoy, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The bill of exceptions having been stricken from the files, the defendants in error move the court for a judgment in their favor “upon the pleadings and. record herein.”

The first ground of error alleged is in overruling the motion of plaintiff in error for defendants in error to make their petition definite and certain. This is held to be reversible error in the case of Railroad Co. v. Kistler, 66 O. S., 326, but whether the motion, was in .fact well founded must be determined when the case comes on to be heard upon the petition in -error and can not be summarily disposed of on motion. for judgment.

Another error, alleged is in granting- the motion -of defendants in error to strike the answer of plaintiffs in error from-the files.

The office -of a motion to strike a pleading from the files is.- to test the regularity connected with the filing, as when filed after the time allowed by statute, or the form of such pleadings as when not verified, its office is not to inquire into the merits of the ease either in law or in fact. Finch v. Finch, 10 O. S., 501, 505.

If the answer and cross-petition is frivolous and was filed for the purpose of delay inereljq as stated in the motion, and all this appears from the pleading itself, the motion was properly sustained; but if the answer contains a good defense," or the’cross-petition a good cause of -action, it is immaterial whether filed in good faith or for purposes of delay only, and the motion should have, been overruled. Traction Co. v. Parish, 67 O. S., 181.

In either event this is not the mode provided by statute for reviewing a case on error, and the motion for judgment will be overruled.


author: Donahue, J. Taggart, J.

text:
    EVIDENCE ESTABLISHING A COMMON LAW MARRIAGE.
    Circuit Court of Stark County.
    Lee Umbenhour v. Hazel Umbenhour et al.
    Decided, September, 1909.

      Husband and Wife — Marriage per Verba de Praesenti, Valid, When — ■ Agreement not Made in the Presence of Witnesses — Competency of Testimony of the Parties thereto — Death of One does not Preclude Receiving Testimony of the Other — Question of the Validity of the Marriage One of Fact for Jury or Court, When — Sections . 59J/1 and 58/,2.
    1. A mutual agreement entered into in good faith between competent parties to contract the relation of husband and wife, followed by cohabitation as such, constitutes a valid marriage, even if the agreement was not made- in the presence óf witnesses.
    2. When it appears that the relation between the parties was in its inception meretricious and not accompanied by any evidence of marriage, but subsequently their relations to each other assume a matrimonial character by being surrounded by evidence of a valid marriage, a question of fact is presented for the determination of the jury or court trying the issue of marriage or no marriage between the parties.
    3. In such case either party is a competent witness to prove the agree'ment. After the matrimonial status is fixed by cohabitation, the parties thereafter come under the rule of exclusion as is provided in Subdivision 3 of Section 5241, Revised Statutes.

      4. In this case, notwithstanding the husband is dead, not being a party the wife is not rendered incompetent as a witness by Section 5242, Revised Statutes.

      McCaughey, Lynch & Day, for plaintiff.

      Shields & Pomerene, contra.
    Voorhees, J.; Donahue, J., concurs in a separate opinion; Taggart, J., dissents.
   This cause of action comes into this court on appeal, and is submitted to the court on the pleadings and evidence.

The main dispute or contention is over the question whether one Willard P. Umbenhour and Margaret Labus, otherwise known as Margaret Umbenhour, ever entered into a legal contract of marriage. There was no-ceremony or public solemnization of the cpntract between them, or marriage, according to the. statutes of Ohio regulating marriages; but it is contended by the defendant, John J. Weffler, as guardian of Grace Helen Umbenhour, a minor, that on or about the 12th day of May, 1901, at the city of Massillon, in Stark county and in the state of Ohio, the said Willard P. Umbenhour and said Margaret Labus entered into a contract of marriage, and thereafter cohabited together as man and wife, until the death of said Willard P. Um- ■ benhour, which -occurred on or about the 14th day of February, 1907. ' He died intestate, leaving as the only issue of his body the plaintiff, Lee Umbenhour, the defendant, Hazel Umbenhour, and the said Grace Helen Umbenhour. Said Margaret is not a'party to this action.

At the the time of making said alleged contract of marriage said Willard P. Umbenhour was a single man, and said Margaret Labus was a single woman, both being of marriageable age, and no- legal impediment existing to prevent their entering into a valid contract of marriage. The said Willard P. Umbenhour had been previously married, but prior to said 12th day of May, 1901, an absolute decree, of divorce had been granted to his former wife. The direct proof of the.making of the contract -of marriage consisted of the testimony of Margaret Labus of the fact. She admitted'in her testimony that she and Willard P. Umbenhour had sustained meretricious or illicit relations with each other prior to the 12th day of May, 1901. They lived iu the city of Massillon. He was.,a bartender at the. Hotel Conrad ; she was laundress at said hotel. There .is no evidence, nor is it even claimed that they there cohabited together, prior to May 12, 1901; he had a room in a tenement house on Park Row in said city. The evidence does not disclose whether she roomed at the hotel, or had a room in said tenement house -on Park Row. It was not shown or admitted by her that' they had co.habited together prior to May 12, 1901, the admission only going to the extent that prior to the date named-they had illicit relations with each other. On the day named, she was at the room in said tenement house on Park Row where said Willard P. .Umbenhour roomed, at which time and place she testified the agreement was made. As to what occurred at that time she testifies in chief, as follows: that "Billy (meaning said Willard P. Umbenhour) said to me, ‘The court won’t give us no license,’ and he took my hand and he said, ‘ I pledge myself as a true and lawful husband to you the longest day I live’; and I said'to Billy, ‘I pledge myself as a true and lawful wife to you the longest day I live’; he slipped his mother’s wedding ring on my finger, and he kissed me, and he said, ‘If we ever have any children they will hold us together.’ ” And on cross-examination she testifies as follows: "Willard said to me ‘The court wouldn’t give no license,’ and he took my hand and he said, ‘I pledge myself as a true and lawful husband to you the longest day I live ’; and I said to him, ‘ I plede myself as a true and lawful wife tq you the longest day I live’; then he kissed-me and slipped a ring on my finger.

From this time, to-wit, May 12, 1901, until the death of said Willard P. Umbenhour, they cohabited as husband and wife — so treated each other, and-held themselves out as such to the community. They established themselves in a home in said tenement house in Park Row in the city of Massillon, where they lived for-a time, and were recognized as husband and wife by those who had occasion to come in contact with them. True, for about two weeks she continued to work at the hotel as laundress, until they could fill her place. At .the time the alleged agreement was made Willard P. Umbenhour was working at Sim Weffler’s, a brother of Squire Weffler, the guardian of said Grace Helen Umbenhour, and defendant in this suit. They prepared their meals in said room and established themselves in it as a home. After living in Massillon for about a year, they moved to the city of Alliance in said county of Stark, and took up their residence there, living in Mrs. Rastetter’s house for a while, and later moved upon another street. They kept house in said last named city in the usual way -that married people do. True, their acquaintance in this latter city was limited, they were strangers there, but so far as people became acquainted with them, they were recognized as man and wife, and were introduced as such to callers and neighbors who had occasion to meet them. Before moving to Alliance, Willard’s uncle died, and he attended the funeral, taking with him said Margaret, and there introduced her to his relatives as his wife.- While living in Alliance a child was born, which child had been conceived after the making of said agreement or contract. The husband — or we will still designate him by his name of Willard P. Umbenhour — secured the services of a physician to attend his wife in confinement. lie said to the doctor, he "wished to engage his services to attend his wife in confinement.” The doctor did so, was introduced by Willard to this woman as "his wife,” the child was born on the 3d day of October, 1902, and is still living, and through its guardian, the defendant, John J. Weffler, is contending for its rights as a child and heir of the body of Willard P. Umbenhour. Willard put its name, giving the name as Grace Helen, in the Bible belonging to them, among the names of -other children and members of his family. When speaking to or concerning this child, he always- referred to it as his, and when referring to this woman, either as his wife, or "mama” when • desiring the child to go to her. Other facts, circumstances, and acts in recognition of .their relation to each other as that of husband and wife might be mentioned, but this is the trend -of the testimony bearing on the question of the agreement and of their cohabitation. These circumstances and facts tend to corroborate the wife in her claim that the contract of marriage was made before these acts and relations were done and assumed.

It is true that the relation between these parties was at one time, in its inception, and prior to May 12, 1901, meretricious and not matrimonial. We concede that a relation so commenced will be presumed to continue of the same character in the absence of proof of a change in its nature; but the parties might assume legitimate and proper relations, and it is admissable to show that such change took place, if it did.

In this case there was a change after the contract was made as we have shown. The only thing to militate against the validity of this marriage, as a common law marriage, is the claim that Willard P. Umbenhour at one time and after the making of the alleged contract said he was married over at Wooster, Wayne county, this state, by a minister.. He did not deny or say he had not married this woman, but gave a false statement as to where and how he was married. On another occasion, referring to this child, Grace, he expressed a hope or desire that she should share in his property as his child, and on one occasion, and shortly before his death, or last sickness, in speaking about a ceremonial marriage, he said that “we ought to get married” or “we ought to get married now.”

It is further contended that she, Margaret, gave a false statement concerning the marriage, stating that she was married on some big water. This statement like his, as to where they were married, or that they ought now to have a ceremonial marriage, did not deny the making of the agreement, or that there was a marriage relation existing between them, but the statements were untrue as .to the place and manner of their marriage.

These statements we think can have no other effect or force than as they tend to discredit her contention that a contract of marriage had been made between them at the time, place and manner now claimed by her on this trial.

Whatever was said by Willard, or by her, as to when and where they were married inconsistent with the present claim, we think, in the light of all the circumstances and conduct of these parties as disclosed in the evidence, from and after the date of the making of the contract, could not and do not destroy the effect of such a contract so made, followed by cohabitation, to establish a legal marriage between these parties.

It is necessary to consider some questions urged at the trial as to the competency of this woman as a witness in this case. It is contended by plaintiff that she is an incompetent witness to testify to the making of the contract. The objection is not laid upon any special ground, but of general incompetency.

Under Section 5240, Revised Statutes, she is a competent witness unless some ground of exclusion is shown. She is not excluded by Section 5241, unless it would be under the third subdivision of this act. If she is or ever was the wife of Willard P. Umbenhour, ■ her competency as a witness would be limited by this section. If this contention is sound, would it not be the end of this case? We think the contention that she is not a competent witness to prove the making of the agreement is not tenable.

Marriage, strictly speaking, is not a mere civil contract, but is a stakes created by contract. It is true it is founded” on consent of the parties, but .the consent is the contract, because of which the stakes is created. The contract being made by words in praesenti, followed by cohabitation, fixes the slakes. Until the stakes is fixed by cohabitation, either party to'the making of the agreement for a present marriage is a competent witness to establish the fact of the agreement, but after the agreement is made, followed by cohabitation, the stakes is fixed, and then the parties would thereafter come under the exclusion as to communications and acts done between them, unless in the known presence or hearing of a third party competent to be. a witness, as is provided in Subdivision 3 of Section 5241, Revised Statutes. There is some of the testimony of this- witness which we think will come under this rule of exclusion, and the objection to all such testimony is sustained, and, so limited, the -testimony coming under this rule is excluded, namely: acts done and conversations had between these parties occurring after they had made the contract and commenced to cohabit under the agreement as- man and wife, unless in the known presence of a third party, would be incompetent and is excluded. But she is a competent witness to prove the making of the contract, and to all acts and conversations between them until the marriage was consummated by cohabitation after the agreement was made. She is a competent witness under Section 5240, and not affected or rendered incompetent under Section 5241 until- the marriage slakes is fixed by cohabitation.

“Cohabiting together as husband and wife means living together publicly in the face of society, as if the conjugal relation existed; living in the same house, in like manner, as marks the intercourse between husband and wife.” Bush v. State 37 Ark., p. 215.
“Cohabitation does not mean sexual gratification only, but it means to live or dwell together, to have the same habitation, so that where one lives and dwells there does the other live and dwell also.” People v. Leahmesser, 38 Pac., p. 422; 104 Cal., p. 631.

This leads us to the consideration of the legal question involved, namely: Is a common law marriage recognized as a' valid marriage in Ohio? We state the proposition thus broadly for-the reason that if no marriages other than such as are solemnized under and by virtue of the statutes of Ohio regulating marriages are valid, such a conclusion would be the end of this case so far as the rights of this child, Grace Helen Umbenhour, are concerned. We think the common law marriage is recognized in Ohio as a valid marriage, but we think conditions must attend to make,, it valid. We adopt as a correct exposition of-the law on this subject the clear and succinct statement of Judge Phillips in his charge to the jury in the case of Mieritz v. Insurance Company, 8 N. P.—N. S., pp. 422-424, when he says:

“Marriage in Ohio may be ceremonial, as I will call it for convenience, or, it may be by mere agreement and cohabitation, and without ceremony, and without license, and without the publication of banns. So that in Ohio, a man and a woman that are marriageable may become husband and wife by the official solomnization of a marriage, by virtue of a license or after the publication of banns and without a license, or by what is called a common law marriage. If a man and a woman that are marriageable agree between themselves to become husband and wife and they agree to become such at once, and they thereafter continuously cohabit as husband and wife, sustain the relation toward each other that is proper only for husband and wife, then the law says they are husband and wife. By such agreement .to become husband and wife and by such cohabitation and carrying out of that agreement they become as legally and validly married as though they were married by official ceremony and by virtue of a license or by publication of banns-. Cohabitation alone would not make them husband and wife, nor would the agreement if not consummated in the,way I have stated malm them husband and wife; but it is the agreement entered into at once, and the Continued cohabitation in that relation, and the treatment of each other not only between themselves, but in the community, as husband and wife, that makes- them such. ’ ’

We believe this is the rule of law recognized by the great weight of authority in- this country, and there is no conflict with the principle announced by Judge Phillips, unless- it may be found in the reasoning of the judge announcing the opinion of the Circuit Court in the case of Bates v. The State of Ohio, 9 C. C.—N. S., p. 273.

The record in that case as shown in the opinion of the court reversing the court below, fails to show any contract of marriage in that case, and the Supreme Court in affirming the circuit court and reversing the common pleas say in its memorandum of affirmance (77 O. S., pp. 622-623): “Judgment affirmed on the ground that evidence did not establish a common law marriage.” This by no means sustains the contention that common law marriages are not recognized in Ohio. Without undertaking to cite generally the authorities outside of this state in sustaining such a marriage as- we have in the case at bar, we will call attention to a few.

In the case of Elizas v. Elizas, 171 Ill., p. 632, s. c. 49 N. E., p. 717, affirming the 72 Ill. App., p. 94, the court held:

“Although the relation between the parties was in its inception meretricious, a marriage is sufficiently proven by the woman’s testimony that they made a contract of marriage, the fact that they immediately moved from disreputable into respectable quarters and continued to live as man and wife, he introducing her as such, and on the birth of their child sent her congratulations, ’ ’ etc.

Where it appears, as in this case, that the intercourse between the parties was illicit at first, but subsequently is assumed a matrimonial character and was- surrounded by evidence of cohabitation apparently decent and orderly, a presumption of more or less strength is raised that the parties have been duly married. While such cohabitation does not of itself constitute marriage, it tends to prove that a marriage contract has been entered into between the parties. Such conduct and cohabitation are in corroboration or tend at least to corroborate the testimony of the wife in her claim that a contract was entered into as testified by her. The principle as here stated is supported by many authorities and especially in the case of Gall v. Gall, 114 N. Y., p. 109.

One of the latest cases bearing upon a common law marriage is the case of Travers et al v. Maria L. Reinhardt, by the Supreme Court of the United States, reported in -the May number, May 15, 1907, of "All Opinions of the United States Supreme Court. Advance Sheets,” page 563, where the court say in its second paragraph of the syllabus:

"Marriage — Per verba de praesenti. Persons whose alleged marriage in Virginia might have been invalid for want of a license had they remained there, might also for want of á religious ceremony have been invalid in Maryland, must be deemed married in New Jersey when as husband and wife they took up their permanent residence there and lived together in that relation continuously in good faith and openly, up to the time of the man’s death, being regarded by themselves and in= the community as husband and wife, since their conduct towards each other in the eye of the public while in New Jersey taken in connection with their previous association, was equivalent in law to a declaration hy each that they did, and during their joint lives were to occupy the relation of husband and wife, which was as effective to establish the status of marriage in New Jersey as if it had been made in words of the present tense after they become domiciled in that state.”
"A contract can not be implied as a matter of law, yet there may be an inference from facts proved, which fairly lead to the conclusion -that there was a contract. When the conduct of parties are susceptible of two opposite explanations, the law assumes it to he moral rather than immoral; and credit is'to-be given to their own assertions whether expressed or implied, of a fact within their own knowledge." Port v. Port, 70 Ill., p. 484.

In Hays v. People, 25 N. Y., p. 390, the principle is stated thus :

" It is a settled rule in this state, and in many other states that a marriage in fact may be shown by proof of an agreement between two persons of opposite sex to take each other presently as husband and wife, consummated by cohabitation. ’ ’

Without pursuing the discussion further on authority or otherwise, we are of the opinion, and so find, that these parties were legally married; that Grace Helen Umbenhour is the legitimate child of such marriage, and is an heir of the said Willard P. Umbenhour, and is entitled to one-third interest in the premises described in -the petition, and is entitled to the relief prayed for in the answer and cross-petition of the defendant, John J. Weffler, guardian of said Grace Helen Umbenhour. And an order of partition is ordered in accordance with this- finding and decree. To which finding and decree the plaintiff excepts.- Motion for new trial filed and overruled; exceptions; statutory time for bill of exceptions; -twenty days for separate finding of facts and conclusions of laAv.

Donahue, J.

The opinion already written by my associate so fully covers every question in this case that I do not care to discuss any of them -at length, -but simply to give my reasons for concurring in the majority opinion. -

I agree with both of my associates upon the question that there may be a valid common law marriage in Ohio, and the essential elements necessary to constitute such a marriage. It may be a matter of regret that such is the law, but it is not the province of the court to legislate upon such subjects; we have discharged our full duty when we declare the existing law and apply it to the facts and circumstances of the case at issue. I do not agree with our dissenting associate that the correct solution of this case depends entirety upon the evidence- of the witness calling herself Margaret Umbenhour. True, we must have recourse to her evidence, for any oral evidence touching the contract in praesenti; and if her evidence in that behalf were not corroborated by other facts proven in this case I would very readily agree with the contention of counsel for plaintiff and defendant, ITazel Umbenhour, not that the witness so unfavorably impresses me as to discredit her own evidence in that behalf, but the language that -she stated was- used in the making and entering into this contract is hardly the language that you would expect persons in their situation and condition of life to use; -but, notwithstanding that fact, it is just as certain that some change came into their lives -about that time. It is undisputed in this evidence that about that time, or within .two weeks thereafter, and just as soon as the hotel could secure another laundress, this woman gave up her position there and went to live with Willard P. Umbenhour, and their- relations thereafter were to all intents and purposes the same as the relations of husband and wife. Willard P. Umbenhour shortly -thereafter told, a friend of his that he had been married at Wooster, and to whatever persons they came in contact with iii Massillon during the remainder of the time they lived there, they introduced each other as husband and wife, and after they removed to Alliance their relations were such and conduct was such, and their treatment of each other and the child was such- as it would have been had they in truth and fact been- married. So that every thing that follows up until the death of Willard P. Umbenhour from and after this claimed contract or pledge was made is perfectly consistent with the claim, and especially the fact that he took Margaret to the funeral of his uncle and there introduced her to his relatives as his wife; It is true that prior to his death and after the birth of the child, he said to Margaret, “now, we ought to be married, ” but this does not necessarily preclude the possibility, or even the probability, of a common law marriage having taken place between them; for I am inclined to-the belief that even though all transpired that has been testified to by Margaret, yet -these people were, perhaps, of the. opinion that they were legally married, but their opinion upon the subject is not important. If this were a criminal prosecution of Margaret or Willard for bigamy, or a prosecution against Willard for failure to provide, his mere opinion as to whether he had or had not -been legally married to Margaret would be of no avail, but the case would be determined upon the facts proven, and not otherwise.

I am also thoroughly in accord with what is stated in the dissenting opinion, as to what these people should have done had they had any decent regard for society or for the welfare of their offspring; but I am not in accord with the statement that a court ought not, at the expense of two innocent children, divide their-patrimony and give it to their unfortunate child. This child is just as innocent of wrong as the two children who are conceded to be legitimate. Its rights ar.e just as sacred to this court, and ought not to be sacrificed upon the mere suspicion or mere possibility that Margaret Labus or Margaret Umbenhour is telling an untruth. This child has much more at stake in this litigation than the dollars and cents it will acquire in this partition suit, and if it is in fact legitimate these other children, Lee and Hazel Umbenhour, are -interested and ought to be concerned-in having its legitimacy determined, even if by doing so their share of the patrimony should be less, yet it is certainly to their advantage, and ought to be a source of great gratification to them, and certainly will he when they reach more mature years, to know that their half-sister is legitimate, and that the last hours of their father’s life was not spent in criminal relations with the mother of this child. But these considerations by no means determine the questions at issue. The evidence must control, no matter who it helps or hurts.

These matters are referred to only as showing the gravity of the case and the care and consideration that courts should exercise in determining the rights of the respective parties, and after careful and mature consideration of all this evidence I have reached the conclusion that there was such a contract in praesenii as the law requires, and that such contract was followed by a change in the relations of the parties, and was followed by cohabitation and the holding each other out to the world as husband and wife, and that by reason thereof there* was a valid common law marriage between Willard P. Umbenhour and Margaret Labus, and that the defendant, Grace Helen Umbenhour, was and is the legitimate child and heir of Willard P. Umbenhour, and as such comes within the provisions of the deed of Jacob Umbenhour to Willard P. Umbenhour for “his natural life, and to the heirs of his body,,if any he have.”

Taggart, J.

I can not concur with the judgment of the majority ,of the court for the following reasons.-

On December 1, 1887, Jacob Umbenhour by deed conveyed to Willard P. Umbenhour the undivided one-fourth part of certain premises in Stark county, Ohio, during the natural life and “to the heirs of his body, if any he have.” There are other provisions in this deed, but they are unnecessary to note in the determination of this case.

Willard P. died February 14, 1907. Lee and Hazel Umbenhour claim to be the only heirs of his body, and if found to be such are entitled to the property involved in this ease.

It is not disputed that these two are the children of Willard P. and Lucy Umbenhour, born in lawful wedlock. Willard P. and Lucy were divorced some time in February, 1901.

On October 3, 1902, Grace Helen, a daughter of Willard P. and Margaret Labus, was born, and through her guardian, claims the undivided one-third of this property. On her behalf the claim is made that, after the divorce of Willard P. and Lucy, that Willard P. and Margaret Labus on May 12, 1901, entered into a consensual marriage, and that this relation existed until the death of Willard in 1907. •

The evidence fully establishes the fact that, prior to the divorce of Willard and Lucy, the relations between Willard and Margaret Labus were illicit, and continued so until, as she claims on May 12, 1901, they agreed to become husband and wife. The only evidence of the contract of marriage is found in the testimony of the witness, Margaret Labus. She says, in speaking of their relations, that " Before the divorce the same were illicit. ’ ’ “After he was divorced he said to me, ‘Mag, you get the blame and we might as well have the game.’ So he said, we will be married, and it went on till May.” Then in May, down in his room, she says the following took place: “Well, in May — it went on till May, and Billy said to me, the court won’t give us no license, and he took my hand and he said, ‘ I pledge myself as a true and lawful husband to you the longest day I live. ’ And I said to Billy, I pledge' myself as a true and lawful wife to you the longest day I live. ’ He slipped his mother’s wedding ring on my finger, and he kissed me, and he said, ‘if we have any children, they will hold us together. ’ ’ ’ These are the words of the contract or agreement in praesenti, which, it is claimed, fixed the status of these parties, as there is proof of cohabitation continuing from about this time until the death of Willard in 1907. This agreement was the only contract-claimed to have been made between these parties, and there is no claim of any other, or different, contract or marriage ceremony. This case rests on the truth or falsity of this testimony.

If this story, taken in connection with all the circumstances of the case, is unworthy of belief, then the claim of Grace Helen to part of this property must fail.

A witness is entitled to be believed unless impeached by other witnesses on his own story, or discredited by the circumstances of the case.

This ivilness is impeached by her own story. She gave an altogether different account of her relations with A¥illard shortly after his death. She then claimed that she had been married by a minister on a large body of water, a distance from the. shore. She explains that she gave this account of her marriage because she was ashamed to tell the truth. She tells this story shortly after Willard’s death, when she did not have the time to fully make up or invent the story that-she now tells. This contract or pledge was kept a profound secret; never brought to light until testified to in court. .Both of these parties knew that the usual and ordinary way to enter into the marital relation was in public, and by employing the offices of priest, minister or magistrate. It is not shown that either knew that the marriage relation might be entered into without a solemnization by a magistrate or minister. It does not appear from the'proof that either knew that this so called pledge had any binding force or effect. On the contrary, there is proof that they did not deem it binding or valid. ‘

Recurring to the testimony of Margaret: “Willard said, before his death, ‘we ought to be — ive ought io get married notv.’ “And tvhai did you say? Did you agree to that?” “Why, sure I did.” “Did Billy speak about getting a license and getting married after May 12, 1901, and up to the time of his death!” “Not until up until a little while before his death.”

There is not a .single declaration or admission of either of these parties as to the fact that a marriage ceremony, or a marriage contract, as testified to by Margaret, had taken place.

While Willard P. entered the name and date of birth of Grace Helen in the fiy leaf of the Bible, with that of his other children, he does not enter the fact of this marriage, or the date of it in the. Bible, or, in connection with the date of the birth of Grace Helen. He, in fact, knew that his marriage with Lucy was a matter of record and its proof easy. He does nothing to bring to light the secret and unusual transaction, as testified to by Margaret Labus. The witness herself says that she never told any one how or when they were married or told the story she now tells.

The slory of the pledge is not credible. The language employed is not such as persons situated as these persons were, would employ. Nor would they employ this manner of getting married. The proof does not show that either ever knew of such, a formula being employed, or of such a marriage, ever having taken place. It is consent or agreement, and not cohabitation, that fixes the status of marriage, and this consent, or agreement, is not established by the proof. The circumstances of the case are-against the claim that there ivas a marriage and not a mere coniirmalion of the illicit relation.

The following rules are well established, understood and supported by abundant authorities: Relations illicit at the inception, when there is no impediment to marriage, the presumption is, that their continuance is of the same character. The fact that a woman assumes a certain name is not any evidence that she is married to the man of that name.

Acknowledgement of marriage. Marriage will not be presumed from mere acknowledgement, when the acknowledgement is as referable to improper relations as to matrimonial; or when it appears that the acknowledgement is made to conceal the unlawful relation. Mere reputation that parties are husband and wife is not enough to warrant a presumption of marriage. This reputation must be general and uniform.

Proof of change in relations. The evidence must establish that the change was referable to the contract of marriage, or to a valid marriage, or the presumption will obtain that the illicit relations continue.

That there was any change in the relation of these parties can not fairly be claimed. Their association before this so-called pledge was meretricious, and they made no change, except to continue the relations *more openly; carefully concealing the fact that anything like the semblance of a marriage had taken place. Had either of these parties desired to make public the fact that they were not continuing their former relations, but that they had in fact been married as claimed, it could easily and surely have been done by stating the fact to -relatives or acquaintances, in the presence .of the other, and silence or the admission of the fact would have been proof that it had taken place. The very fact that during these years no such admission or public declaration was made by either, negatives the idea that the pledging ever took place, and the holding out was, in fact, to cover a relationship that was improper. The writing of the name “Grace Helen” in the Bible, and the acknowledgment of her as their child, does not establish á marriage. She was their child, but the acknowledgement does not prove that she was born in wedlock. Many a natural father has acknowledged his child, and acknowledged the mother of the child as its mother, but. that does not establish the fact that she was his wife. He said in his last days, “He wished that Grace might share with the other heirs. ’ ’ Had there been a contract between these parties, dating from May, 1901,' and it was believed or known that it was binding, why thus wish that the child might share with his other children?

Finally, there is no reason given for their taking up with each other, and living as they did, if they desired to change their meretricious relation to one matrimonial. They kneyr that people in these days, in a respectable community, publicly unite in marriage, so that tlieir status, and that of their children, will not be left to anjr uncertainty. They knew that a public marriage is deemed and held respectable, and that a secret one is looked on with suspicion. Did they desire to make amends for their past conduct, they would have been married publicly by a magistrate or a minister. Even after the birth of their child, if they had any regard for its future, they would have made some permanent provision, so that its rights would not have been left to very uncertain testimony of a single witness and its legitimacy left in doubt. ' Their conduct is only explained by the belief that they were never married, or that they never had any regard for their child,'or hoped that some court, at the expense of two innocent children, would divide their patrimony, and give it to their unfortunate child, thus giving it a status and legitimacy which they, without a decent respect for the usages and customs of respectable society, had denied it.


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    AS TO THE APPOINTMENT OF DIRECTORS OF PUBLIC SAFETY.
    Circuit Court of Franklin County.
    The State of Ohio, ex rel Samuel C. Slaybaugh et al, v. Sylvester C. Noble, as Auditor of the City of Columbus.
    Decided, October 12, 1909.

      Municipal Corporations — Quo Warranto — Involving Validity of Appointment of Director of Public Safety, where Made August 1, 1909— Section 146 and Other Sections of the Municipal Code as Amended April 29, 190S.

    Under the sections of the municipal code as amended, departments of public safety went out of existence on August 1, 1909, and the appointment of directors of public safety on that date was authorized by law.

      Williams, Williams & Taylor, Simeon Nash and H. M. Myers, for plaintiff.

      George S. Marshall and Edgar L. Weinland, contra.
    Sullivan, J.; Dustin, J., and Allread, J., concur.
    Mandamus.
   The petition of relators shows that they furnished for use of the fire department of the city of Columbus a quantity of oáts, which was’accepted by the city, and that a'vou-ch'er therefor was approved by Foster G-. Burdell, as director of the department of public safety of said city; that they presented said approved voucher to the respondent and demanded that he issue his warrant as city auditor on the treasury of said city for the amount of said approved voucher, which was refused by' said respondent, and that he still refuses to issue the same. They, therefore, pray that they may have the order of this court requiring him to do so.

To this petition the respondent' has demurred, and for his ground of demurrer states that the petition' does not state facts sufficient, to constitute a cause of action, and to entitle the relators to the relief prayed for, Counsel for respondent in support of the demurrer contends that Foster G. Burdell was not at the time he approved said voucher, or at any time theretofore, or now is the director of the department of public safety of said city, and therefore was without authority to approve it, for the reason that his appointment to said position by the mayor of said city was without authority of law; that Section 146 of the municipal code as amended April 29, 1908, by favor of which said appointment is claimed to have been made, does not take effect until the 1st day of January, 1910. Therefore, said appointment was premature and of no effect. Though Section 3 of said act, in language of plain import, provides that the several sections relating to the department of public safety, including Section 146, shall take effect and be in full force on and after August 1st, 1909, yet when the several sections of the act, including Section 146, are construed as a whole, observing the well established, rules of statutory construction, it is claimed that the Legislature did not intend what it said in plain language, but did intend that said section should not take effect until January 1st, 1910.

It is claimed first by respondent’s counsel that this is apparent from the provisions of Section 154a. This section provides for a board of control, to be composed of the mayor, the director of public safety, and the director of public service, and as there can not be an appointment made to the last department until January 1st, 1910, the board of public service, by favor of Section 3 of the act, remains in office and in charge of that department until said date, consequently there can be no board of control until then.'

The duty of this board is simply to determine whether the director of public safety and of the public service shall award contracts involving an expenditure of 'the public money in excess of $500. The mayor is ex officio president. A record of the board’s proceedings is to be kept; all votes shall be by yeas and nays and entered of record, and a majority of all the members shall be necessary to adopt any question.

By Section 154 the director of public safety is positively for- • bidden from creating an obligation in his department against the city in excess of $500, without being first authorized and directecl by ordinance of council; and in making contracts for such an expenditure, he is to be governed by the provisions of Section 143. By the provisions of this section, the director of public safety must first advertise for bids. When the expenditure has been authorized and directed by council, the director shall make a written contract with the lowest and best bidder. The contract shall be between the corporation and the bidder. It would seem from these sections that when the council authorized and directed the expenditure, that the duty enjoined upon the director of public safety was imperative, and the contract would have to be entered into in accordance with the provisions of Sections 143 and 154. These sections are for the purpose of restraint upon the respective directors. When an expenditure exceeding $500 is suggested or said to be needed by either of the directors, the council has the authority to pass upon the wisdom and necessity of the same.

The matter proposed to be safeguarded by Section 154a, ive think finds ample and better protection in Sections 143 and 154, and that the interests of the municipality would not suffer materially if the taking effect of 154a was not only delayed until January 1st, 1910, but indefinitely postponed. We think it more reasonable to assume that the Legislature did not intend 154a to go into effect until January 1st, 1910, than to say it did not intend by the plain language of Section 3 that 146 should take effect August 1st, 1909.

The second ground of respondent’s contention is that if proper force is given Sections 162 and 166, it is clear that the Legislature intended to continue the present system of civil service in force until January 1st, 1910; that Section 162 lends strong color to this conclusion and Section 166 puts it absolutely beyond doubt, and therefore clear, that the contention of respondent is correct as to the legislative intent.

Section 162 provides in effect that chiefs and members of the police and fire departments shall be dismissed for the causes designated in Section 152, and the proceedings in such cases shall be as provided in the latter section, except the appeal shall be to the civil service commission. Dismissals under Section 162 can not be had until it goes into effect, which is January 1st, 1910. When it does take effect the provision of 152, providing for appeals, would not apply to appeals under Section 162, and yet 152/if counsel’s contention was correct, would still be in force by virtue of 166, which provides that no officer, secretary, patrolman, fireman, etc., shall be dismissed at the time it took effect, except in accordance with the provisions of 152. Hence, there would be. two tribunals to which appeals could be-taken. We think this was not intended. The apparent inconsistency between- these sections- furnishes no reason why effect should not be given other sections where the intent of the Legislature is expressed in plain terms capable of literal interpretation.

The several amended sections creating the department of -public safety,-the appointment of a director to administer the department, defining his powers and duties, are sufficient within themselves to be capable of execution without reference to other sections of the act. The sections of the act repealing the old sections and fixing the date when the same shall take effect are in plain and unambiguous- language and easy of interpretation, and -if liter-ally construed, the sections creating the board of public safety, ei seq, were repealed, and the repeal took effect and was in force on and after August 1st, 1909. As the single director is a substitute for the board if the merit system is to continue during the interim, no violence will be done the language of Section 152^ to hold that the appeal therein provided for can as well be taken to the director as theretofore to the board. -

"If the language of the statute is plain and free from ambiguity, and expresses a single, definite and sensible meaning, that meaning is conclusively presumed to be the meaning which the Legislature intended to convey. Tn other words, the statute must be interpreted literally.” Black on Interpretation of Laws, pp. 35 and 36, and cases cited.

Apply this rule in the interpretation of Sections 2 and 3 of the act under consideration, and the conclusion is forced that the amended sections relative to the department of public safety went into force on August 1st, 1909; that the board of public safety went out of existence at that date; and therefore the appointment of a director to that position on the date named was authorized; therefore †-he demurrer to the petition is-overruled at defendant’s costs,


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    PROOF AS TO DAMAGES FOR. WRONGFUL DETENTION.
    Circuit Court of Hamilton County.
    Sadie Arnold v. Rudolph Wurlitzer Co.
    Decided, March 6, 1909.

      Replevin — Competency of Evidence — As to Damctges for Wrongful 'Detention of Musical Instruments — Probable Earnings of Such Instruments.

      M. C. Lykins, for plaintiff in error.

      Wm. S. Little, contra.
    The jury fixed the damages for the.wrongful retention of one piano and one harp at $150. It was claimed that the testimony, offered by the plaintiff below, Wurlitzer Company, as to the probable earnings of these instruments during the period of wrongful detention, was improperly admitted.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   We do not think the evidence objected to -by the plaintiff in error was erroneously admitted on the question of damages, and the judgment of the court below will be affirmed.


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    QUIETING TITLE TO PROPERTY (CLAIMED AS A STREET.
    Circuit Court of Hamilton County.
    Sophia Drucker v. Village of Home City.

    Decided, November 23, 1907.

      Title — To Property Ineffectually Dedicated for Street Purposes — Rights of a Subsequent Grantee — Adverse Possession.

    1. The dedication of a street of a village can not take place before the creation of the village, and where an attempt is made to dedicate property for a street, but before the creation of the village the dedicator conveys the property to another by deed in the usual form, such conveyance amounts to a revocation of the dedication.

      2. Title is obtained by adverse possession as against a corporation, where tlie probabilities as to the situation bear out the positive testimony of the plaintiff asserting such possession.

      Albert Bettinger, for plaintiff.

      James B. Matson and Sayler & Sayler, contra.
    The plaintiff in this ease sued to quiet title to a strip of ground claimed by the defendant village as a street. The contention of the village was that certain streets within the territory which now- forms a part of the village were dedicated by the owner of the lands in 1849, thirty years before the incorporation of the village. The plaintiff built a fence across one of these streets and for many years used the space as a garden.
    Swing, J.; Giffen, J., and Smith, J., concur.

       Affirmed by the Supreme Court without report, Village of Home City v. Drucker, 81 Ohio State.

   We are of the opinion that the plaintiff is entitled to the relief sought on two grounds:

1st. She has title to the premises through deeds from the Cincinnati Building Association. The dedication of the building association could not have taken effect before the creation of the village of Home City in 1879. There was no grantee in existence to take, and of course there could have been no acceptance until after the creation of the village. Long before this, to-wit, in 1860, the building association deeded away this property, and therefore under the decision in the case of Lockland v. Smiley, 26 O. S., 94, the conveyance operated as a revocation as to the property conveyed.

2d. She is entitled to recover as owner by reason of adverse possession for more than twenty-one years under a claim of right. Title by adverse possession in Ohio is as good against a corporation as against an individual, the only difference being in the character of the proof required. 17 C. C., 472, affirmed by the Supreme Court.

The evidence here was conflicting, as it generally is when witnesses are testifying to facts which existed twenty years before. All the witnesses seemed to be honest and fair and disinterested, but we feel bound to think that the witnesses for the .plaintiff had the best opportunity to observe the conditions that existed there, especially the Crosses, and not only this but it would seem very unreasonable that Drucker should have maintained a fence around only a portion of her garden at the point where she did. It would seem that a fence was necessary to protect her garden, which she planted yearly on the ground in question. Without a fence she could not hope to raise a crop, and all the witnesses agree that she raised crops yearly on this property, and there was no evidence that any of her crops were ever injured by animals or otherwise.

We feel therefore that the probabilities as to the situation bear out the positive • evidence of the plaintiff.

Decree accordingly.


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    ASSAULT AND BATTERY-SELF-DEFENSE.
    Circuit Court of Huron County.
    H. C. Aurand v. State of Ohio.
    Decided, 1909.

      Criminal Lato — Defense of Self-Defense Against a Charge of Assault and Battery — Reasonableness of Belief of Accused that he was in Danger — Burden of Proof.

    A charge to tile jury in a prosecution for assault and battery in which self-defense is asserted is erroneous where it instructs the jury that the burden is on the defendant to show that he was in actual danger, that the exigency demanded self-defense, and that he used no more force than was actually necessary, ignoring any question as to a reasonable belief that he was in danger and that the force used was necessary to his defense.

      McKnight & Thomas, for plaintiff in error, cited and commented upon the following authorities:
    State v. Johnson, 58 Ohio St., 417; People v. Rodrigo, 69 Cal., 601; State* v. Shea, 104 Iowa, 724; Commonwealth v. McKie, 67 Mass. (1 Gray), 61; United States v. Lunt, 1 Sprague, 311; People v. Shanley, 62 N. Y. Supp.; 389; State v. Schmidt, 19 S. Dak., 585; State V. Fowler, 52 Iowa, 103; People v. Lynch, 1Ó1 Cal., 229; Marts v. State, 26 Ohio St., 162; Goins v. State, 46 Ohio St., 457; Darling v. Williams, 35 Ohio St., 62; Jordan v.
      State, 13 C. C., 471; Stewart v. State, 1 Ohio St., 66; Bennett v. State, 10 C. C., 84.

      Don J. Young, for defendant in error.
    Wildman, J.; Parker, J., and Kinkade, J., concur.
    Error to Huron Common Pleas Court.
   In this case Dr. H. C. Aurand was indicted for an assault upon one Harry Tuck with malicious intent to disfigure him and was convicted in common pleas court- of assault only. To reverse the judgment of the court -of common-pleas, this proceeding is instituted here.

A number of errors are presented, but specific attention need be given to but one which seems to us of sufficient importance to justify very careful consideration.

The charge of the court given to the jury after argument is brief and in but one part of it touches the question of asserted justification of self-defense. The language of the court is found on page 132 of the bill of exceptions and is as follows:

“In behalf of the defendant, it is claimed that if he injured Tuck, he was acting in so.doing in defense of his own person.
“A person unlawfully assaulted by another may use all the force necessary to repel the assault, but no more. Self-defense under such circumstances is in law'a justification.
“The burden is on thedefendant to prove by a preponderance .of the evidence that lie acted in self-defense. It is not enough for him to show that he was so acting, but it must further appear that no more force was used by him than the exigency necessarily demanded. If he were guilty of an unreasonable and disproportionate degree 'of violence toward the person of. another, he is liable for the excess of force used by him beyond.what was reasonably necessary under the circumstances.” .

And on page 133, the court is reported to have said:

“While the burden is on' the defendant to show by a preponderance of the evidence that if he assaulted Tuck, he was justified by the necessity of self-defense in so doing, in all other respects, as to every material question in the case, the burden is on the state.”

In the case of Marts v. State, 26 Ohio St., 163, in the second paragraph of the syllabus, the Supreme Court laid down this rule applicable to this class of cases and indeed applicable and applied to a case of homicide. The- paragraph referred to is as f oIIoavs :

“Homicide is justifiable on the ground,of self-defense, where a slayer, in the careful and proper use of his faculties, Iona fide believes and has reasonable ground to believe,'- that he is in imminent danger of death or great bodily harm, and that his -only means of escape from such danger will be by taking the life of his assailant; though in fact he is mistaken as to the existence or imminence of the danger.”

The rule so expressed has been repeatedly followed in later adjudications of the Supreme Court and other courts of the state.

I would cite, without reading, the case of Darling v. Williams, 35 Ohio St., 58, and especially the language of Judge Boynton on page 62; also the case of Goins v. State, 46 Ohio St., 469. I might cite others, but it is sufficient to say that there has been no departure from the rule, and it becomes important, for this reason, to determine whether the trial court in the case at bar has given the jury an opportunity to apply it in behalf of the defendant. There is no reference in the charge from beginning to end, to the belief of the defendant that any'action was necessary on his part to defend himself, either in striking Tuck in the first instance, or in continuing to strike him afterwards in the assumed defense of his own person. Indeed, hardly any inference could be drawn by the jury from the language of -the court other than that he would have no right to use more force than was actually necessary to defend his person, or, he would have no right to strike the other except in such an exigency as actually demanded defense; and although it might be a case where there was no danger, yet the surrounding circumstances, taking the appearance of the other party to the affair, might be such that the accused fully believed that he was in danger and had reasonable ground for such belief.

We have been unable to find any language in the charge anywhere, or in any instruction given before or after argument at the request of counsel, that relieves this instruction 'in the general charge from the infirmity to which I have invited attention.

Our judgment is that the court’s language constituted prejudicial error, and for this reason the case should be reversed.

We have examined critically the testimony of the witnesses and such other evidence as appears in the way of exhibits, and we have discovered no other prejudicial error in the ease, but for the instruction to which I have referred, in the general charge, the judgment of the court below will be reversed and the cause remanded for a new trial.


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    AS TO PAYMENT BY BANK OF SAVINGS ACCOUNT.
    Circuit Court of Lucas County.
    David Robison, Jr., & Sons v. Thomas A. Upton.
    Decided, June 12, 1909.

      Banks and Banking — Burden of Proving Payment of a. Savings Account — Charge of Court — Error.
    A bank, in an action by a depositor to recover the balance of a savings account, has the burden of proving an alleged payment or withdrawal by the depositor. The burden is not on the depositor to show the balance claimed and that payment has not been made.

      Hamilton & Kirby, for plaintiff in error.

      C. T. Johnson, for defendant in error.
    Wildman, J.; Parker, J., and Kinkade, J., concur.
    Error to Lucas Common Pleas Court.
   Upton sued plaintiffs in error, a banking firm, for an alleged balance of savings account, amounting to $178.66. The controversy between the parties is as to whether a certain payment of that amount was made by the bank to Upton upon one occasion, October 16, 1907. The bank admits that Upton had an account with it, but claims that on the date named he withdrew or checked out from the bank the amount claimed. A question is raised as to the burden of proof in the case. The court below instructed the jury that the burden was upon the plaintiff to show this alleged payment upon the account. It was urged upon the other side that as he was suing upon an alleged balance of account, the burden was upon him to show that the balance was as claimed and that the payment had not been made. We think, however, that the contention of the depositor that the burden is upon the bank to show that he had withdrawn it, that he had received the payment, is correct. We think that the court did not err in this regard. The only other claim made is that the verdict rendered in the court below in favor of Upton was not justified by the evidence. The evidence is decidedly conflicting, and we have gone over it with care in an endeavor to ascertain the exact facts, and we can not conclude that the verdict of the jury is manifestly against the evidence. There are no other errors, I believe, claimed in the case.


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    INJURY FROM SUPPING ON A GREASED STREET RAILWAY RAIL.
    Circuit Court of Hamilton County.
    The Cincinnati Traction Co. v. Angie S. Cramer.
    Decided, July 3, 1909.

      Orease and Oil on Street Railway Tracks at Much TJsed Grossing— Negligence- of Company in so Smearing Its Rails — Verdict Owing Damages to an Injured Pedestrian Upheld.

    1. Where a street railway company admits placing grease and oil upon its rails at an intersection of two streets where great numbers of people are constantly crossing, and the testimony is to the effect that the grease was negligently applied and the rails smeared with it, the question of negligence on the part of the company ceases to be one of fact for the jury and becomes' one of law for the court.
    2. A verdict of $3,500 is not excessive, where the plaintiff is a woman who slipped on a rail so greased and suffered a miscarriage as a consequence of her fall.

      Outcalt & Hickenlooper, for plaintiff in error.

      W. J. Davidson, contra.

      The defendant in error, while crossing the street at Sixth and Vine, fell and was so severely injured as to cause a miscarriage. In her petition for damages she alleged that the traction company. had greased the rails on the curves in its tracks at that point, and that this had been done in a careless and negligent manner, and grease had been smeared over the rails in such a way as to make it dangerous for pedestrians to step upon them, and that it was the grease so placed that caused her to slip and fall. The jury gave her a verdict of $3,500. .
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The admission in the answer of the defendant “that it is necessary to oil and grease said'rails at curves,” and the testimony of the plaintiff and the police officer as to the location, quantity and character of the grease warranted the inference that the defendant not only put it. there, but did it in a negligent manner. These facts being once found no two persons of ordinary intelligence could disagree as to whether a reasonably prudent man, not in the- ordinary course of events, but under the surrounding circumstances, would foresee that the acts done would be liable to cause damage or injury. It ceased to be a question of fact for the jury, and became one of 1-aw for the court. There was no intervening cause alleged or proved that required or rendered pertinent the instruction requested by the defendant after the general charge to the jury.

Judgment affirmed.

       Dismissed in Supreme Court by consent of parties at costs of plaintiff in error.


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    DEMURRAGE AND CAR. SERVICE CHARGES.
    Circuit Court of Franklin County.
    The Railroad Commission of Ohio v. The Ann Arbor Railroad Company et al.

    Decided, October 12, 1909.

      State Railroad Commission — Powers of, with Reference to Gar Service and Demurrage Charges — State Commerce and Interstate Commerce — Application of the State Act to Transportation and'Terminal Facilities — Commerce Clause of the Federal Constitution — Discrimination.

    The power to regulate car service and demurrage charges as to cars employed in interstate commerce is not conferred upon .the state railroad commission by the act of April 2, 1906 (98 O. L., 342) ' creating and prescribing the duties of the State Railroad Commission of Ohio.

      U. G. Denman, Attorney-General, Freeman T. Eagleson, O. E. Harrison and John R. Horst, for plaintiff in error.

      Wilson, Wilson & West, C. O. Hunter, Edward Colston, Theodore W. Reath, F. A. Durbin and Squire, Sanders & Dempsey, contra.
    Allread, J.; Dustin, J., and Sullivan, J., concur.
    Heard on error.

       Affirming Ann Arbor Railroad Co. et al v. Railroad Commission of Ohio, 8 N. P.—N. S., 233.

   The action in the court below was brought by a number of railroad companies located in this state and engaged in state and interstate transportation, against the railroad commission of the state, to enjoin it from enforcing certain rules and regulations affecting car service and demurrage.

The case was submitted to the court below upon demurrer to the second cause of action. The first cause of action, which challenged the reasonableness of the rules, was withdrawn or at least not involved here and no question is made so far as the second cause of action is concerned as to the reasonableness of the rules, but only as to the power of the state commission to promulgate and enforce them.

The court of common pleas held the rules valid except as affecting cars employed in interstate commerce. And a permanent injunction was only allowed to prevent their enforcement to that extent.

The railroad commission prosecute error to this court to reverse so much of the judgment as enjoins the enforcement of its rules to the extent above stated.

The principal argument of counsel is directed to the effect of the “commerce clause” of the national Constitution, delegating to Congress the power to regulate commerce among the states. In this connection it may be remarked that this clause has been the subject of repeated adjudications by the Supreme Court of the United States. But, notwithstanding all that has been expressed, the line of demarcation between federal and state jurisdiction is not clearly established, and the power to regulate terminal facilities and car service lies within the area of doubt and dispute. But aside from the constitutional question is one raised by counsel in the case as to the construction of the state railroad commission act. It is apparent that the state railroad commission has only such powers as the act creating it confers. It can not prescribe rules or assume powers not conferred by the act. We may, therefore, properly inquire what power is conferred or assumed to be conferred by the state act in relation to ear service rules and charges as affecting interstate shipments.

In the construction of the act it may be assumed that the state Legislature sought to avoid any constitutional infirmity in the provisions of the act and intended to keep safely within the limits of state jurisdiction.

The act itself carries this legislative construction in Section 2a:

“That the provisions of this act shall apply to the transportation of passengers and property between points within this state, and to the receiving, switching, delivery, storing and handling of such property, and to all charges connected therewith, including icing charges and mileage charges.”

It is contended by the Attorney-General that the limitation of the application of the act to state commerce refers only, to the transportation and not to local or terminal facilities. But it will be observed that the limitation of the scope of the act to property involved in state commerce applies not only to transportation of property but to the terminal service of such property as well. The character of the property to be moved is made the test in both classes of service. If the property moves in state commerce, the act applies both as to actual transportation and as- to receiving, switching, delivering, storing, handling, and all charges connected therewith. But the act does not assume to apply as to either transportation or terminal facilities, if the property which is the subject of shipment moves in interstate commerce.

It is also contended by the Attorney-General that Section 3 of the act, relating to discrimination in rates, is general in terms and .applies to all railroads, regardless of the nature and character of the property transported. ' We are of the opinion, however, that the legislative construction in Section 2a underlies the whole act and is the limitation of its scope. The subject-matter of Section 3 is the charge for transportation of passengers and property as well as the terminal facilities. Now, the terms- employed in Section 3 have been construed and applied in Section 2a to intrastate shipments, and it necessarily follows that the use of these terms in Section 3 or any other section in the act, unless a contrary intention appears, must follow the definition and applicating of the preceding section. This is confirmed by the language employed in Section 24, prescribing the penalties.

It is not necessary to express an opinion as to whether the requirements of Section 4, 10a, and 12 of the act fall within the legislative construction prescribed in Section 2a relating to transportation and terminal facilities.

The act under consideration in Section 21 gives the state commission power to investigate freight rates on interstate traffic, and if found to be unjust or discriminatory, to request the railroads affected to revise the tariffs, and in case of failure, to petition the Interstate Commerce Commission for relief. This is the only section in the act which refers expressly to interstate commerce; and in view of the legislative construction in Section 2a of the act, and the doubt and conflict that exists as to the limit of state jurisdiction, we may fairly assume that the power conferred in Section 21 is the only authority intended to be conferred upon the state railroad commission as to interstate commerce or the facilities and instrumentalities employed therein; and that all other grants of power contained in the act are to be confined to state coriimerce.

The Attorney-General argues that cars may often be ordered or furnished without definite knowledge or intention as to consignee or place of destination, and that an important field for regulation might thus be left open and free from control by either state or federal commission. This question, however, is not before us in the present record. The injunction allowed by the court below restrains the commission only as to ear service so far as it affects interstate shipments. Until interstate commerce is in some way impressed upon the instrumentality sought to be controlled or regulated, the injunction does not apply. The only question here is as to whether the state railroad oommissioji can enforce its rules as to cars which have been impressed as instrumentalities of interstate commerce.

It, therefore, follows that in the opinion of this court, the state railroad commission had no power under the act creating it to enforce car service or demurrage rules as to ears employed 'in interstate commerce.

In this view, it is not necessary to discuss or express an opinion as to the constitutionality of an act conferring such' power upon a state railroad commission.

The injunction in the court below was, therefore, properly awarded, restraining the commission from the enforcement of its rules as to car service and demurrage so far as affecting interstate commerce; and the judgment is, therefore, affirmed.-