text:
    SUSPENSION OF RIGHT TO TAKE TOLLS.
    [Circuit Court of Hamilton County.]
    The Ohio Turnpike Company v. Ernest Waechter; heard on error to the Court of Common Pleas of Hamilton County. The Ohio Turnpike Company v. C. M. Edwards et al; heard on error to the Court of Common Pleas of Clermont County. State, ex rel C. B. Nichols, v. John D. Martin; quo warranto from Clermont County.
    Decided, December 16, 1903.

      Turnpikes — Suspension of Right to Take Toll Upon — Must Be hy Due Process of Law — Impanneling' of Jury — Without Express Authorisation of Statute — Inherent to Jurisdiction — in Quo Warranto— Constitution Loes Not Execute Itself.

    1. A suspension of the right to take tolls under R. S. 3484 and 3485 is a taking of property no different in kind, only less in degree, than that defined in the case of Turnpike Company v. Parks et al, 50 O. S., 568, and as such can only be had by due process of law.
    2. The Constitution does not execute itself, and where in a special proceeding a jury is necessary, provision should be made therefor by statute.
    3. The right to impannel a jury to try issues of fact is inherent in the exercise of jurisdiction in quo warranto.
    Jelke, J.; Gifeen, J., and Swing, J., concur.
   These three eases growing out of the same property, the Ohio turnpike, and presenting substantially the same questions, will be considered, together.

The first two, error cases, were begun in magistrates’ courts and were prosecuted under R. S. 3484 and 3485. In both cases it was contended that a suspension of the right to take tolls was a taking of private property, and under the ease of Turnpike Company v. Parks et al, 50 O. S., 568, was in violation of :

“1. Section 5, Article 1 of the Constitution: ‘The right of trial by jury shall be inviolate. ’
“2. Section 16, Article 1 of the Constitution: ‘Every person, for an injury done him in his land and goods, shall have remedy by due course of law.’
“3. The provision, of Section 1, Article 14 of the amendments of the Constitution of the United States, that no person shall be deprived of property without due process of law.”

In the Edwards case in the Common Pleas Court of Clermont County, the court offered to impannel a jury to try the issues of fact as to the condition of the road, etc., but counsel for the turnpike company, while contending that said company could not be deprived of its property without due course of law, that is, without the intervention of a jury, nevertheless denied the power of the court to impannel such jury without express authorization by statute so to do.

Dickman, J., in the Parks case, supra, said:

“The right to take toll upon a turnpike is a franchise, and when properly exercised becomes a useful and valuable right— a source of income and the means of reimbursing the company for keeping the road in repair for safe and convenient use. And this franchise, which in the case at bar it is sought to extinguish, is to be regarded as property in the enlarged sense of the term.
“A franchise is property, and nothing more; it is incorporeal property, and it is its character of property only which imparts to it value, and alone authorizes in individuals a right of action for invasions or disturbances of its enjoyment.” Daniel, J., in West River Bridge Company v. Dix, 6 How. (U. S.), 507, 534, cited in the Parks case, supra.

We are of opinion that a suspension of the right to take tolls is a taking of property no different in kind, only less in degree.

There are two contentions on behalf of the plaintiff below:

First. That this is not an absolute taking of property but a sequestration of the same to enforce the court’s order as to repairs, in analogy to a mesne process from a court of chancery. The answer to this is that this is not an equitable proceeding because it is begun, and, in default of appeal, may be ended in the court of a justice of the peace who has no equitable jurisdiction. In a proceeding at law, then, property can only be taken by due course of law.

Second. That an appeal is provided by R. S. 3485 to the court of common pleas, and that a jury may be had in that court. In the Waeehter case this was denied by the court below.

If we find that this proceeding is the taking of property and can only be had under the Constitution by the intervention of a jury, as the Constitution does not provide for the impanneling of a jury and as the Constitution does not execute itself, we must look to the statutes to find what provision, if any, is made for a jury in such proceeding. The provisions for the impanneling of a jury by the common pleas court in criminal cases can not apply. R. S. 7267-7275-7276, etc. Neither can the general provision of R. S. 5130 in civil actions apply.

“Issues at law must be tried by the court, unless referred as hereinafter provided; and issues of fact arising in actions for the recovery of money only, or specific, real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered as hereinafter provided. ” R. S. 5130.

Now we find that the jury on appeal in road cases is specially provided for in R. S. 4700 (which saves the constitutionality of action by viewers). We find further that in all special proceedings in which a jury is needed, special provision is made for the same by statute, viz., condemnation, bastardy, will contests, etc. In the absence of such provision we fail to see how the constitutional right of the turnpike company can be secured to it.

The same objection is urged by counsel for the turnpike company in the quo warranto case. In this case the taking of property sought is absolute, and unless the issues of fact can be determined by a jury impanneled by and under proper instructions from a court of competent jurisdiction, under the Parks case, must fail.

. Jurisdiction in quo warranto is conferred by R. S. 6768. Where the constitutional right to a jury trial is recognized, the right to impannel a jury to try issues of fact is inherent in the exercise of jurisdiction in quo warranto (23 A. & E. Encyl. of Law, p. 626). It pertains to the jurisdiction conferred. If then in this ease in this court a jury were demanded we would proceed to impannel one as provided in R. S. 5168. The eonstitutional right being thus secured in this kind of an action in this court, the objections of the Parks case are avoided and this court in a proper case could forfeit defendant’s franchise.

We are of opinion that when the individuals, defendants herein, took this property under the act of May 5, 1868 (65 O. L., 136), the same vested, “in them in the same manner” as franchises vested in the original corporators and subject to the same visitation on the part of the state through its courts as obtained against the original corporation, and this action would lie either under R. S. 6760 against a person who unlawfully holds a franchise, or R. S. 6761 against a corporation when it has committed or omitted an act which amounts to a surrender of its corporate rights, privileges and franchises, or when it has •misused a franchise, privilege or right conferred upon it by law.

In quo warranto the court has the widest latitude of discretion in granting and withholding the writ in consideration of general justice, public and private, and can take into consideration all the conditions and even the protestations of what defendants purpose doing immediately.

In view of the changes which brought about the conditions complained of, the promise of defendants to make immediate . repairs and restoration, the season of the year, etc., the court will give the defendants until April 1st, 1904, to repair the road to conform to the requirements of R. S. 3477 — “at least sixteen feet (in width) shall be made an artificial road composed of stone, gravel, etc., well compacted together in such a manner as to secure a firm, even and substantial road” — and proceedings herein will be stayed until then.

We are of opinion that R. S. 3484 and 3485 do not afford what the Constitution vouchsafes, and the error cases will be reversed.


source: Caselaw Access Project

license: Public Domain

text:
    INFORMALITIES IN THE LEVYING OF A STREET ASSESSMENT
    [Circuit Court of Lucas County.]
    Harriet A. Blair v. C. K. Cary.
    Decided, February 23, 1903.

      Assessment for Street Improvement — Excess of Benefits Need Not be Determined — Irregularities in Council Proceedings — Method of Recording Yea and Nay Vote — If Assessment Just, Method of Fixing it Unimportant — Valuation of Property Not Necessary, When —Tax Sales — Valid Title Can Not be Obtained Where Any of the Tax Was Illegally Imposed.

    1. An assessing committee of council having found and determined that the benefits accruing to all the property to be assessed on a street for a contemplated improvement is equal to the amount to be assessed thereon, it is not necessary to go further and determine the extent, if any, that the benefits will exceed the amount to be assessed; provided, that the amount to be assessed is equally apportioned and assessed, and that the assessment does not in the ease of any particular lot exceéd the benefits accruing thereto, nor its proportion of so much of the total benefits as equaled the total amount to be assessed.
    2. When a just and equitable result has been obtained, and abutting lot owner will not be heard to complain because the method by which the result was reached was not scientific, or was informal, or even the result of an accident.
    3. Although, in the opinion of the court, there is a better way of recording a yea and nay vote, yet where the record of the proceedings in council with refereneé to'a street improvement ■ resolution sets forth the names of the members present, and that a vote was taken and the resolutions adopted, and the number voting corresponds with the number whose attendance is noted; the validity of the action can not be successfully questioned.
    4. A failure to fix a valuation of the property to be assessed does not render an assessment invalid, in a case where no valuation was required under Section 2272, and two-thirds of the property owners on the street signed the petition for the improvement, including the plaintiff.
    Parker, J.; Haynes, J., and Hull, J., concur.
    Heard on appeal.
   Suit was brought in tbe court below by Harriet A. Blair, who was the owner of lot No. 21 and the westerly thirty feet of lot No. 22, in the Virginia street addition to the city of Toledo, to have her title quieted as against certain claims against said property which Avere asserted by the defendant, Cary. It appears that the property had been sold by the treasurer of Lucas county at a delinquent tax sale to Cary, for the sum of $128.05, the same being the amount of taxes charged upon the tax duplicate of said county against the property for the year 1899; that in pursuance of this sale the auditor of the county issued and delivered to the defendant a certificate of purchase of said premises. It appears that a part of the taxes making up this amount were state, county and city taxes, for general purposes, for the year 1898, and a part of the amount was made up of fifteen per cent, penalty thereon, and part was state, county and city taxes for general purposes for the year 1899; and on account of an assessment for the paving of Virginia street, $73.40, and on account of an assessment for printing notices, $3.40.

Now it is averred in the petition — and this is not disputed— that a part of this general tax was levied because of a debt of the county arising out of the building of an armory in pursuance of “an act to provide for acquiring land and building an armory in the county of Lucas, for the use of the Ohio National Guard, and to create a fund to pay for the same” (87 O. L., 598). It also appears that that act has been held to be unconstitutional, and the levies to raise funds to discharge this debt have been held to be invalid; and in consequence thereof no valid title to property can be obtained at a tax sale where any of these taxes make up a part of the taxes on account of which the sale is made. So the defendant here does not undertake to claim title to the property, nor to enforce the collection of the penalty, nor to maintain his lien for the penalty. The contention in this case, therefore, is narrowed down to the assessment for the paving of Virginia street. It is contended on behalf of the plaintiff that this assessment is invalid — this assessment of $73.40 due and payable in the year 1899, for various reasons set forth in her petition. There are other installments of this assessment on account of the improvement of Virginia street by paving, for the years 1900, 1901, 1902 and 1903, the total of the amount of this • assessment upon this property being $281.06. The defendant paid this item of $73.40 at the time he made this purchase. It appears, I believe, that he has since paid one other installment, and he undertakes to maintain his lien for these parts of this assessment upon the Virginia street property. Now the plaintiff avers that this assessment is invalid, “is null and void, for the reason that said city council did not determine the value of the premises, or any part thereof, hereinbefore described, either in advance of said assessment or at the time of making the same.” Also, “that said assessment for the improvement of Virginia street was, in the first instance, made by the assessing committee appointed by said city council, to make an assessment in proportion to the special benefits conferred by said improvement upon the lots and lands benefited thereby, in pursuance of a resolution therefor, but plaintiff says that neither said assessing committee nor said common council ever made a total valuation of the special benefits conferred by said improvement upon the lots and lands benefited by the same, as provided by law and by the resolution of said common council appointing said committee, for which reason said assessment is wholly null and void.”

Counsel for plaintiff in error contends that because the assessing- committee failed to ascertain and used as a basis for the apportionment of the assessment the total of the benefits accruing to the property on the street, the assessment can not, in the nature of things, be correctly apportioned. He quotes the provisions of Sections 2264 and 2277, Rev. Stat., relating thereto and cites the case of Chamberlain v. Cleveland, 34 Ohio St., 551, and urges that to meet the requirements of the statutes and the smles laid down in this case, the sum of the benefits must be ascertained and used as a basis in the mathematical problem necessarily involved and submitted to the city council and assessing committee for their solution. I quote from his brief:

‘ ‘ This proposition may be stated mathematically as follows:
The wfiole special benefits
are to
the special benefit of a particular lot
as
the whole amount to be assessed
is to
the assessment on the particular lot.
“But it is alleged in paragraph seven of the petition that neither the assessing committee nor the council ever made a valuation of the whole special benefits conferred by the improvement (and this allegation is denied in the amended answer as interlined, but the testimony supports the petition). It therefore follows that as the first term in the above proportion was never determined it was mathematically impossible to determine the fourth term.”

Now the report of the assessing committee is as follows:

. “We find that the estimated value of special benefits conferred upon the lots and lands set forth in the ordinance providing for said improvement, passed August 9, 1897, is equal in amount to the total estimated cost of said improvement, including incidental expenses thereof as reported herein. We find and report an estimated assessment upon the lots and lands set forth in said improvement ordinance passed August 9, 1897, which estimated assessment so reported herein made on the lots and parcels of land so assessed and is apportioned among the several lots or parcels of land specially benefited by said improvement in proportion that the special benefit to each lot or parcel of land bears to the whole special benefits conferred by said improvement. Said estimated assessment upon each lot or parcel of land so assessed and as reported herein, is based upon the value , of special benefits conferred upon the same by said improvement, and does not exceed the same nor do they exceed the proportion of special benefits conferred upon each lot or parcel of land by said improvement, and said assessment, so made as aforesaid, is as follows:
[Among the list of property described appears the following: “Lot 21 and Wly 30 ft. lot 22 Virginia street Add (1899) $73.40, (1900) $55.42, (1901) $53.08, (1902) $50.75, (1903) $48.41, (total) $281.06.”]
“Respectfully submitted,
“A. E. Forster,
“Geo. Vogel,
“John G. Keller,
“Toledo, O., August 25, 1898. “Committee.
“Confirmed October 10, 1898.
“Attest: Lem P. Harris, City Clerk.
“Ordinance to confirm assessment, Vol. T. Journal, p. 294.
“Yea and nay vote duly recorded council meeting October 3, 1898.”

Keller and Forster, two of the assessing committee, testify orally as to the course they pursued in making the assessment. They agree in their statements, and it is agreed by council that Togel, the third member of the committee, if called, would testify the same. They say, in substance, that they proceeded as follows:

1. They got the total cost of the improvement from the city civil engineer.

2. They obtained the descriptions of all the property to be assessed.

3. They ascertained the amount of benefits to each parcel and apportioned the same, having reference in so doing to the whole amount to be assessed. But they say that they ascertained and. determined that the amount of benefits upon all the property to be assessed exceeded the total of the costs and expenses which they assessed thereon; that the amount of the assessment upon, any parcel did not exceed in any ease the benefits thereto nor its proportion of the amount assessed upon all the property. They also say that they determined the value of each lot so as not to. exceed the limitation of twenty-five per cent., which they supposed théy were required to observe — that is to say, that the assessment should not exceed twenty-five per cent.' of the value of the property; that in estimating the benefits they viewed the property; they considered its location, the size and- shape of each parcel, the extent of the frontage, the improvements thereon and the uses to which it was or might be devoted, and everything else that in their judgment had a proper and legitimate influence upon the estimate they were making of the benefits accruing thereto from-the improvement, but they did not .estimate the amount of benefits accruing to all the property upon the street and-sum the same’up or go-through- -the - arithmetical ¡-’operation ’ of adding the same and using the total as a basis for apportioning the benefits, and, finding that the benefits exceeded the amount to be assessed, they proceeded with that amount as a basis, taking no account of the excess of the total benefits over the total amount to be assessed.

Counsel for plaintiff: in error relies very much upon the case of Chamberlain v. Cleveland, supra. We do not understand that the court in that case attempted to lay down any certain rule, method, or modus operandi for apportioning such burdens or making such assessments, or that anything there held supports the contention of counsel that the total of the benefits accruing to all the property benefited and to be assessed must be ascertained and stated and used as a basis or as one of the terms of a mathematical problem to be worked out by the assessing committee or the council. The fundamental fault in the proceedings in that case manifest upon the record, was a failure to consider at all the question of benefits in making the assessments, and proceeding upon the assumption that the cost of the improvement was to be assessed upon the abutting property at all events.

In the ease at bar the assessing committee having found and determined that the benefits accruing from the improvement to all the property upon the street to be assessed therefor was as much as the amount to be assessed thereon, we are of the opinion that it was not required to go farther and determine the extent, if any, that the benefits exceeded the amount to be assessed. In other words, if the total of the benefits to all the property exceeded the amount to be assessed, the amount of such excess was unimportant. It was only important that the amount to be assessed should be equitably apportioned and assessed, and that the assessment should not exceed, in the case of any particular lot, the benefits accruing thereto, nor its proportion of so much of the total benefits as equalled the whole amount to be assessed. This result they say they obtained. Whether they used it as the first term in the problem, as stated by counsel, the, total of benefits to all the property, or only so much of the total benefits as they were required to apportion and assess, the result would be the same. In other words, if $20,000 were found to be the total of the benefits, and $15,000 the amount to be apportioned and assessed, it would follow that an amount equal to but seventy-five per cent, of the benefits accruing to each parcel should be assessed against the same. Proceeding to make the apportionment and assessment of the $15,000, if they considered the just proportions, they necessarily assessed upon each parcel but seventy-five per cent, of'the benefits accruing thereto. They report and they declare that they considered these elements of the problem, and that they obtained the results that in their judgment was right and just after giving full consideration and according full influence thereto; that they did not assess any parcel in excess of the benefit resulting thereto nor more than its just proportion of so much of the total benefits as equalled the amount to be assessed. This, as we understand it, is the substance of their report and testimony, and this we believe is a compliance with the spirit and the letter of the law.

But, even if this were not made to appear affirmatively, the plaintiff would not therefore be entitled to a decree against the enforcement of this assessment. In our judgment she must go farther than to show that the committee did not proceed by a certain or even by a prescribed method to attain the result. In order to entitle her to such relief at the hands of a court ■ of equity she must make it appear that, in her case, a just and equitable result was not attained. Even though the method pursued by the committee, or the council, was not scientific, or was informal, if the amount assessed against their property did not exceed the benefits thereto resulting from the improvement, and did not exceed her just proportion of the benefits thereby resulting to all the property subject to assessment therefor, she has no ground of complaint.

Now it is admitted in the agreed statement upon which (as supplemented by oral evidence) the cause was submitted to us, that the whole amount assessed upon the property upon the street does not exceed the whole of the benefits thereto, and that the amount assessed against plaintiff’s property does not exceed the benefits thereto; and she does not aver nor attempt to prove that the amount assessed against her property exceeds, or even equals its just proportion of the total benefits to all the property assessed; she simply avers that the committee or council never ascertained the total of benefits to all the property, and urges that because of this omission it was mathematically impossible for it to make a just distribution of the burdens.

Enough has been said to indicate our views upon that proposition; but, even if that were true, if a just result so far as plaintiff is concerned had been attained by other than scientific methods, or even by accident, she is without ground of complaint, and it devolves upon her to show that her property has been over-assessed — that the law has been disregarded to her hurt and injury. In this she has totally failed; indeed, she has not attempted to make such a showing. We hold, therefore, that she is without just ground for complaint on this head.

The petition contains the averment that:

‘ ‘ Said contract was null and void for the reason that the resolution confirming it was not adopted by a yea and nay vote, nor were the yeas and nays on the adoption-thereof entered upon¡ the journal of said city council. ’ ’

Section 1693, Rev. Stat., requires that the vote on the adoption of ordinances, resolutions and by-laws “shall be taken by yeas and nays, and recorded on the journal,” and that the concurrence of a majority of all the qualified members of the legislative body shall be necessary to their adoption. The agreed statement of facts on that subject reads as follows:

“3. That there is recorded in volume K of resolutions, at page 213, the following:
“ ‘Resolved, By the common council of Toledo that the contract with F. E. Cole for the improvement of Virginia street, from Collingwood avenue to Lawrence avenue, by paving the central twenty feet thereof with Trinidad asphalt No. 1 laid on a foundation of concrete six inches thick to the established grade, and providing the necessary grading, curbing, drainage, etc., be and the same is hereby confirmed.
“ ‘Adopted October 11, 1897.
“ ‘Attest: Lem P. Harris, Approved October 13,1897.
‘City Clerk. S. M. Jones, Mayor *
“4. That the,only records of the passage- of the resolution set out in paragraph three above is the following, recorded in volume F of the journal of board of aldermen, at-page 305:
“ ‘A resolution to confirm contract for the improvement of Virginia street, Collingwood avenue to Lawrence avenue, by paving, adopted, yeas, fifteen.’
“And the following recorded in volume S of the journal of the board of councilmen, at page 470:
“ ‘A resolution to confirm contract for the improvement of Virginia street, Collingwood avenue to Lawrence avenue, by paving, adopted, yeas, twenty-nine.’
“5. That the record of the meeting of the board of aldermen at which the resolution set out in paragraph four was passed shows that at the opening of said meeting the following members were present, to-wit: Bacon, Braunseliweiger, Brown, Fellows, Jackson, Jefferson, Laden, Metz, Mathias, Roulet, Stewart, Sullivan, Valentine, Whalen and Meissner — fifteen.
“That the record of the meeting of the board of eouncilmen at which the resolution set out in paragraph four was passed shows that the opening of said meeting the following members were present, to-wit: Abele. Austin, Bretch, Calkins, Champion, Chase, Coleman, Connell, Bawson, Brane, Engelhart, Hales, Hoffman, James, King, Kraus, Masten, Roll, Reeves, Schneider, Schirks, Shovar, Stark, Truman, Wylie, and McAleese — twenty-seven ; and that after said meeting was opened, and before said resolution was voted upon, the following members came in and took their seats, to-wit: VanLoo and Stevens.”

It is urged that this does not show a compliance with the law, but that it discloses that the law was not complied with. In supporting this conclusion counsel cites Steckert v. East Saginaw, 22 Mich., 104. The statute there under consideration required that “the votes of all the members of the common council, in relation to any act, shall be entered at large on the minutes,” and the record under consideration set forth the names of the eouncilmen attending, and that the resolutioh in question was ‘ ‘ adopted unanimously on call. ’ ’

In the case at bar it will be observed that the record says that certain yea and nay votes were taken, and the members are given, and the numbers correspond with the numbers of councilmen and aldermen in attendance, or whose attendance is noted. It is perhaps a fair inference, possibly a necessary conclusion, that all those named voted aye and that none other voted, or were present to vote. Nevertheless we do not mean to approve of the method of recording a yea and nay vote, and think that much that is said by Judge Cooley in his opinion in the ease cited, is applicable to proceedings under our statute. He says, in part, page 107:
“Unless the minute is a compliance with the section of the charter in question, it is not claimed by the defendants that it has been complied with at all; but their argument is that the record shows, first, the names of the several aldermen who were present when this action was had; second, that the roll was called on the vote; and, third, that each of them, when the roll was called, voted for the adoption of the resolutions. This being so, the vote is, in effect, entered at large on the minutes, and the repetition of the names of the aldermen in the minutes, when the precise position of each upon the resolutions submitted was already recorded, would have been only an idle ceremony, accomplishing no useful purpose.
“We have found ourselves unable to take the same view of this record that is taken by the counsel for defendants. There can be no doubt that the provision of the statute which requires these votes to be entered at large on the minutes, was designed to accomplish an important public purpose, and that it can not be regarded as immaterial, nor its observance be dispensed with (Spangler v. Jacoby, 14 Ill., 297; Supervisors of Schuyler Co. v. People, 25 Ill., 183). The purpose, among other things, is to make the members of the common council feel the responsibility of their action when these important measures are upon their passage, and to compel each member to bear his share in the responsibility by a record of his action, which should not after-wards be open to dispute. * * *
“What is designed by this statute is, to fix upon each member who takes part in the proceedings on these resolutions the precise share of responsibility which he ought to bear, and that by such an unequivocal record that he shall never be able to deny either his participation or the character of his vote. But manifestly we can not determine in the present case, with any certainty, that any one of the aldermen named — Alderman Buckhout, for example — actually voted for the resolutions in question. We know he was present when the council convened, but we have no record which points specifically to his individual action afterwards. Suppose he were to contest the tax as illegal, and the city authorities were to insist upon an equitable estoppel arising upon his vote in its favor, and he should deny such vote, we should, look in vain in this record for anything absolutely inconsistent with such denial. Suppose his constituents, dissatisfied with this vote, undertake to call him to account for his participation, and he were to say to them, ‘I was not present when these resolutions were adopted; I was indeed present when the council convened, but was called away soon after on private business’; this record plainly could not be relied upon to contradict his assertion. The persons arraigning him would be obliged, in order to fix his responsibility, to resort to the parol evidence of his associates or of by-standers. But the Legislature understood very well the unsatisfactory character of that kind of evidence, and they did not intend that the power to call an alderman to account for misconduct, delinquencies or errors of judgment in the performance of this official duty, should be left to depend upon it. They have imperatively required that there should be record evidence of a character that should not be open to contradiction, or subject to dispute; and their requirement can not be complied with according to its terms, nor satisfied in its spirit and purpose, without entries in the minutes showing who voted on each resolution embraced by the section quoted from the charter, and how the vote of each was cast. In other words, the ayes and noes on each resolution must be entered at large on the minutes, so that the presence or participation of any member shall not be left to conjecture or inference.”

It does not appear that these councilmen did not in fact all vote “aye” upon this resolution; it is only charged, and it only appears that they are not recorded as having voted in that way. If they in fact so voted, the resolution would have been regularly adopted to all intents and purposes so far as it affected the rights of all parties who could possibly have-any interest in it, even though the record did not affirmatively disclose the fact. As was decided in the case of Drott v. Village of Riverside, 4 C. C., 312, where a certain resolution embodying a contract did not appear to have been adopted at all, the fact that it was adopted might be shown by parol. Of course it would not be within the power of the city to defeat the rights of the contractors because of a failure of the recording clerk to make correct minutes of the transactions of the councilmen.

But, even if we should adopt the rule laid down in the Michigan case referred to, we can not see that the plaintiff may insist that a duty to her rested upon the city to deny payment under this contract, and that the city might have done so successfully and thereby relieved the plaintiff of the burden of the assessment; and it seems to us that this should be made to appear, in order to justify the contention of the plaintiff here that this assessment should be held invalid; that is to say, it should appear to us that the duty rested upon the city to declare that it had assumed no obligation and to refuse to pay anything to the contractor for furnishing material and labor for making the improvement after it had stood by allowing these things to be furnished, and that the city could have successfully maintained that position, in order to allow the plaintiff to maintain her contention here under that head; and we are of the opinion that neither of these is true. We are not cited to any authority, and we have searched for none, but we do not believe that the city could stand by and allow this work to be done in pursuance of a contract and afterward successfully resist payment on the ground and because of an informality on the part of the council in adopting the contract, even if it were true that that informality existed, and we do not think it was a duty which rested upon the city to interpose such defense for the benefit of the plaintiff and others upon that street;

It is said, in the third place, that the assessment was invalid because the value of the property was never fixed by the council, so that no twenty-five per cent, limit could be observed, reference being had to Section 2270, Rev. Stat., which requires that an assessment shall not exceed twenty-five per cent, of the value of the property to be assessed. It does not appear to us that any valuation of the property was required in this case. It was held in the case of Strauss v. Cincinnati, 23 Bull., 359, by the superior court of that city, that a failure to fix a valuation did not render an assessment invalid in a ease where it was required; and that holding was confirmed by the superior court at the general term, the report of the affirmance appearing in 24 Bull., 422; and if a valuation were required here, we would be inclined to the views expressed by the court in that case; but it seems to us that no valuation Avas required here (although the assessing committee say that they did consider the value of the property and Avere careful not to exceed the twenty-five per cent, limit), because of the express provision in Section 2272, Rev. Stat., applicable to this case. I read from the latter part of. that section:

“Provided, that in cities of the third grade of the first class, when a petition has been regularly presented to the council, asking for the improvement of a street or alley, and the lot or land of one who subscribed said petition is assessed, said assessment shall be a valid lien against said lot or land for the full amount of said assessment, although it may exceed said twenty-five per centum of the value thereof. ’ ’

Now it appears that this petition was not only sighed by two-thirds of the property owners upon the street, but that it was signed by the plaintiff in error as well, and this language of the statute, it seems to us, is very clear and capable of but a single construction.

It is urged by counsel for plaintiff in error that the ease of Birdseye v. Village of Clyde, 61 Ohio St., 27, is in point here and has some influence upon the construction of this provision of Section 2272, Rev. Stat., but we can not so understand it, and we do not think that is true. In that case the act under consideration was a special act for the city of Clyde, and it contained no limitation whatever; it did not contain a provision, as this section does, that the assessment should be a valid lien against the property, although it might exceed twenty-five per centum of the value; it contained no provision upon the subject.

Our construction of the law was that that being the only act invoked (the petition being under the act), and it containing np limitation, there was no limitation, and that, therefore, they might disregard the twenty-five per cent, limitation fixed in Section 2270, Rev. Stat. The Supreme Court, however, took a different view; it held that in the absence of any express provision, the limitation fixed by Section 2270, Rev. Stat., should be read into it and be considered as a part of the act, and that for the protection of persons proceeding under that special act as well as others. But here we have a ease of an express provision applicable to the city of Toledo to the effect that nothwithstañding an assessment may exceed twenty-five per cent, of the value, it shall be valid as against persons signing the petition; and we think, therefore, that the plaintiff has no ground of complaint upon that score.

We have tried to give this matter careful consideration, but we do not arrive at the conclusion which the court below seems to have reached in respect to this assessment. We see no ground for impeaching its validity, and we hold that it is valid; that the plaintiff has a right to have her title quieted as against the penalty and as against the assessment on account of the bonds issued for the armory, but not as against this assessment. The judgment will be the same as in the court below, with the addition to the claim of the defendant of this assessment, and the costs in this court will be adjudged against the plaintiff, and the costs in the court below we think should be paid by the parties equally, i. e., each one-half thereof.

B. A. Hayes, for plaintiff.

F. S. Monnett and N. 0. Winter, for defendant.


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    JUDGMENTS FOR TAXES BEAR INTEREST.
    [Circuit Court of Lucas County.]
    The State of Ohio, ex rel William W. Crapo, Trustee, v. Peter Parker, as Treasurer of Lucas County, Ohio.
    Decided, July 3, 1903.

      Interest — On a Judgment for Taxes Against Beal Estate — Collectable Under Section 3181 — Meaning of the Word “Transaction” as Used In This Statute.

    A judgment in a suit brought for the recovery and enforcement of a lien for taxes against real estate bears interest from the time it was taken until it is paid.
    Haynes, J.; Hull, J., and Parker, J., concur.
   In this case a petition is filed for a writ of mandamus to compel the defendant, Peter Parker, Treasurer of Lucas County, to receive the amount of a certain judgment according to the amount stated in the judgment, and without any accruing interest upon the judgment — the real question being whether a judgment in a suit brought for the recovery and enforcement of a lien for taxes against real estate will bear interest from the time it was taken until its payment.

We have stated our doubts as to whether this is a case where the proper remedy is mandamus; but, waiving that, we have examined the question and come to some conclusions in regard to the case.

It is claimed on behalf of the relator that the right to recover interest is founded upon Section 3181 of the Revised Statutes. Assuming that to be true, we have examined the statute, which is as follows:

“In eases other than those provided for in the two preceding sections, when money becomes due and payable upon any bond, bill, note, or other instrument of writing hereafter made upon any book account, or settlement hereafter made between parties, upon all verbal contracts hereafter entered into, and upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of a contract hereafter made, or other transaction which hereafter occurs, the creditor shall be entitled to interest at the rate of six per cent, per annum, and no more. ’ ’

And a discussion is made upon the definition or proper understanding of the word “transaction.” It is claimed on the part of the relator that the levying of taxes and the collection of the same by judgment is not a “transaction” within the proper definition of the word, and that there being no statute which provides for the collection of interest upon taxes, or upon a judgment for taxes, that therefore no interest can be legally allowed. I have said — assuming that this statute governs, and I am of opinion that this does govern — at common law the matter of interest was entirely a question of damages, but it has come to be in this country a matter of contract, and very largely a matter of statutory right. Now this is not a bill, or a note, or any of these matters that are set forth in the different sections of the statute, and we think it is a proper statement to make that it must be included within the term “transaction.”

If we look at Anderson’s Dictionary of Law, at page 1047, under the heading “ Transaction, ” we find this definition to be given:

“Whatever may be done by one person which affects another’s rights, and out of which a cause of action may arise. It is broader than ‘contracts.’ A contract is a transaction, but a transaction is not necessarily a contract. In a statute, limiting counter-claims to demands arising out of the same transaction; some commercial or business negotiation; not a wrong of violence or fraud.”

That is, in relation to counter-claims growing out of the same transaction, and according to that it must be some commercial or business negotiation, not a wrong of violence or fraud. But, under this first definition: “Whatever may be done by one person which affects another’s rights,” the levying of a tax made by the supreme authority of the state, and by the officers of the state placed upon the duplicate, 'by the statute becomes a lien upon property. The statute states that the treasurer is authorized to bring suit, if taxes are not paid, and to force the lien to judgment and decree for the sale of the property, which would seem to come explicitly within the definition of “Whatever may be done by one person which affects another’s rights, and out of which a cause of action may arise.”

Our ancient friend, Webster, has a definition also, at page 1402:

“The doing or performing of any business-, management of any affair. That which is done; an affair, as, we are not to expect in history a minute detail of every transaction. (Civil law). Ah adjustment of a dispute between parties by mutual agreement. Synonym: proceeding; action ; process. A transaction is something already done and completed; a proceeding is either something which is now going on, or if ended, is still contemplated with reference to its progress or successive stages. The proceedings at the trial of Lord Russell were marked by deep injustice, and they led to a transaction, in his beheading, of flagrant enormity.”

It strikes us that the definition in regard to the proceedings upon the trial of Lord Russell and his execution, was a very fortunate illustration of the subject; that was a proceeding by one party which resulted in the decapitation of Lord Russell, and the other is a proceeding by one party which often results in the decapitation or taking in law of a man’s property. At any rate it is a definition and illustration given by the dictionary —an act by one party which affected another and out of which an action might arise and judgment may be taken.

It was always supposed that every judgment drew interest. It was argued by counsel that it is usually stated in the decree that the judgment shall draw interest. Now our experience and our understanding is to the contrary. In an ordinary judgment or a decree taken for a specific' amount, it ,has not been customary, so far as we know, to make a .statement in regard to interest. The decree finding the amount due and declaring a lien upon the premises is a judgment, and the general terms and meaning of a judgment has been defined in the ease of Doyle v. West, 60 O. S., 438.

W. H. A. Read, C. F. Watts, H. A. Merrill, for relator.

W. G. Fiery, for defendant.

I think it will be found that the definition of this word as claimed by counsel for the relator should prevail — that: there are a large number of judgments which will not draw interest. As, for instance, judgments for torts, or for negligence, that do not arise out of any agreement between parties. In eases of assault and battery, libel, slander and all that class of cases, they are matters which are not consented to by the other party, nor have they arisen out of any agreement or arrangement between the parties, but they are acts of one party committed upon the other in violation of the rights of one party, which gives them a right of action, and that right of action is merged into a judgment, and that judgment should certainly be entitled to draw interest on the principles of equity and the true and proper construction of the statutes.

Without discussing the matter farther, we are very clearly of the opinion ourselves that this decree does draw interest from the time it was taken, and that has been the understanding of this court. The case referred to (Wheeling & Lake Erie Railroad Co. v. Treasurer, 15 Circuit Court Reports), we assume to be the law of this court. The point decided there was another point and followed a decision which ivas made by the court in the seventh circuit, in Belmont county, and was originally a question of penalties, and not a question of interest — except as the question of interest may have been drawn in prior to the time the decree was taken.

The petition of the plaintiff for a writ of mandamus will be dismissed.


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    DECLARATIONS BY TESTATOR. SUBSEQUENT TO EXECUTION OP WILL.
    [Circuit Court of Hamilton County.]
    Elizabeth Schmitt Kuhl, Executrix, et al, v. Margareta Reichert et al.
    Decided, December 16, 1903.

      Wills — Declarations by Testator, Made Subsequent to the Will, Admissible as Evidence for the Purpose of — Charge of Court Capable of Being Misunderstood — But Interrogatories Answered Show it was Taken in Proper Sense.

    1. Declarations as to testamentary intentions by a testator in advanced age and in feebled condition, made during last sickness and shortly after execution of will, are admissible to show the state of mind of the testator at the time the will was executed; and where, in answer to interrogatories, the jury find that the testator was not unduly influenced, and did not have at the time the will was executed sufficient mental capacity to make a will, a charge by the court that might have been interpreted by the jury to mean that such declarations were competent to prove an intention other than that expressed in- the will, was not prejudicial, and the verdict will not be disturbed because of the error in the charge had it been so interpreted.
    Giffen, J., Jelke, J., and Swing, J., concur.
   No exception was taken to the charge of the court, and hence any alleged error therein will not be considered, unless upon the whole record it appears that injustice has been done to the party complaining.

That part of the charge now objected to is as follows:

“Declarations made by the testatrix at, before, and after the making of the purported will as to her intentions in making the will are admissible to prove not undue influence, but capacity and intention, and should be considered in determining the state of the testatrix’s mind.”

If the court meant that such declarations were competent to prove an intention other than that expressed in the will, it was erroneous, because oral testimony is no more admissible to vary or contradict the terms of a written will than the terms of a contract in writing; but concerning the other proposition in the charge, to-wit, “Declarations made by the testatrix * * * should be considered in determining the state of the testatrix’s mind,” it is said in Paige on Wills, p. 474: “Any declarations of testator which tend to show the condition of his mind at the time that he made his will are admissible to determine his mental capacity at that date. So, statements made by testator relative to his intentions of disposing of his property are admissible, not for the purpose of contradicting the contents of his written will, but to show his state of mind at the time that he executed such will;” in support of which many cases are cited.

The strongest case cited by the plaintiffs in error in support of their contention that such declarations were inadmissible is Crocker v. Chase, 57 Vermont, 413, the first proposition of the syllabus being as follows:

“The declarations of a testatrix, made subsequently to the execution of the will, and at a time when she was of sound mind, are not admissible for the purpose of showing her mental condition when the will was executed. There is no logical relation between such declarations and the fact sought to be proved; although it is otherwise when mental unsoundness exists at the time the declarations are made.”

The difficulty encountered in applying this case to the one before us, is that it is not clear that the testatrix, Philipina Schmitt, was, at the time the declarations were made, of sound mind. The particular declarations complained of and recited on pages 10 and 11 of the bill of exceptions were made at the time of her last sickness and shortly after the execution of the will. ITer feeble condition by reason of her last sickness beginning a few weeks before the execution of the will, together with her advanced age, tended to corroborate the witnesses who were of the opinion that her mind was enfeebled.

We are of the opinion therefore that the declarations of the testatrix concerning her testamentary intentions were admissible to show the state of her mind at the time the will was executed, and if they were considered by the jury for any other purpose it was not prejudicial because the jury in answer to two special interrogatories found that the testatrix was not unduly influenced and did not have sufficient mental capacity to make a will at the time the will in question was executed.

Benner & Benner, contra.

Gloss & Luebbert, for plaintiff in error.

The verdict'of the jury was not so manifestly against the weight of the evidence as to require a reviewing court to set it aside.

The judgment will be affirmed.


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    MONEY DEPOSITED IN LIEU OF BAIL.
    [Circuit Court of Lucas County.]
    Fred B. Brusoe v. The Retreat and The City of Toledo.
    Decided, October 3, 1903.

      Arrest Without Warrant — Where there is No Evidence that the Accused was in Commission of the Crime Charged — Money Deposited in Lieu of Bail — Not “Voluntary” Where the Arrest was Illegal— And may he Recovered, Even though it has Passed to a Beneficiary.

    1. Where money is deposited in lieu of bail demanded under an illegal arrest, the payment thus made is not voluntary, and may be recovered back.
    2. Money thus deposited with police officials is held by the city as trustee, and where paid over by the city to a designated beneficiary, the beneficiary acquires no better title thereto than that of the trustee, and is bound upon demand of the one entitled to the fund to surrender it to him.
    Parker, J.; Haynes, J., and Hull, J., concur.
   This action was brought by Brusoe in the court below against The Retreat and the City of Toledo, to recover back one hundred and sixty dollars which he had deposited in lieu of bail, in the .police court of the city, and which money had been forfeited and withheld from him. It appears that on the 6th day of August, 1900, Mr. Brusoe and his wife, and some other women who were said to have been living at a place kept by himself and wife, were arrested by a police officer and taken to the police station on a charge of keeping a house of prostitution — that is to say, Brusoe and his wife were arrested on that charge, and the others were arrested on the charge of being inmates; and that they were arrested without affidavits having been previously filed charging them with these offenses and without warrants having been issued and put into the hands of the officers for their arrest.

It is charged in the petition in the case that these moneys were wrongfully and unlawfully exacted from Brusoe, and such money unlawfully detained and delivered' to The Retreat established in the city of Toledo for a home for friendless girls, which, under a certain statute of the state of Ohio, is authorized to receive all funds or forfeitures arising from the prosecution of houses of ill-fame or prostitution. It is not charged in the petition that the arrest was made without warrant, but the evidence in the ease tends to show that that was true. Upon trial of the ease in the court of common pleas a verdict was returned by the jury in favor of both defendants— both Toledo and The Retreat. On motion of plaintiff that verdict was set aside as to The Retreat, but it was allowed to stand as to the city. Error was not prosecuted to that order or to the judgment founded upon it in favor of the city, and the petition in error in this case was not filed within four months from the date of that judgment, so that the case against the city came to an end. Subsequently the case was re-tried as against The Retreat, and after the evidence was in on behalf of the plaintiff, a motion was made to rule the evidence from the jury and to enter judgment in favor of The Retreat. It does not appear from the bill of exceptions that this motion was acted upon, and witnesses were then called on behalf of the city, who gave some testimony, and thereupon the motion was renewed and the court ruled in favor of The Retreat, and directed the jury to return a verdict in favor of The Retreat, which was done; a motion for a new trial being made and overruled, judgment was entered, and now error is prosecuted here by Brusoe.

The testimony in the case tended to show that Brusoe and his wife were arrested without a warrant having been legally issued, no proper affidavit having been filed; it tends to show that the arrest occurred about 11:30 p. m. of August 6th, 1900. Mr. Brusoe testified that he was in custody not to exceed twenty minutes; that then the bail was fixed by some officer, in his case at $100, and in his wife’s case at $100; they having previously searched him and taken from him about $117, or, as other witnesses say, $122; that he desired them to retain $100 of his money as the bail in his case, and as he was not able at the time to furnish bail in his wife’s case, the $100 was retained and the excess was returned to him. On the next day, the bail in his wife’s case having been reduced to $50, he produced $50 and paid it over in lieu of entering into a bond, and thereupon his wife was released. The records introduced in the case tend to show, from their dates, that the affidavits charging these offenses upon Brusoe and his wife, were made out and signed upon the following day, to-wit, upon the 9th of August, and that the warrant was issued upon the 9th of August. The cases were continued by the police court for a few days to a time set for trial, and neither Brusoe nor his wife appearing to answer the charges, the bail was declared forfeited. The evidence tends to show that this money was paid to The Retreat in pursuance of the provisions of the statute which I have mentioned.

Now it is insisted on behalf of The Retreat that the evidence shows clearly that this money was voluntarily paid into the hands of the city officers in lieu of bail, and that, therefore, it can not be recovered back, and that, therefore, the direction of the court to the jury was right. And the testimony does tend to show, and perhaps it would not be out of place to say that as it stands it does show that Mr. Brusoe was not willing, under the circumstances, to deposit this money to obtain the freedom of himself and his wife; indeed that he was quite willing to do so. lie did not tender a bail bond; there is nothing tending to show that he tendered such a bond, and that it was declined, and that the money was exacted in lieu thereof, but it tends to show that it was at the suggestion of Mr. Brusoe that the cash was taken in lieu of a bond.

Now that such an exaction of cash is illegal, and that it may not be retained by the city, is decided in the case of Reinhard v. Columbus, 49 O. S., 257. It is also decided in the case of Columbus v. Dunnick, 41 O. S., 602, that where one is arrested and at his own request makes a deposit -of cash in lieu of bail, such deposit of cash, being voluntary, it may be retained and can not be recovered back. It appears, however, in that ease that the arrest was lawful, that is to say, legal. In the case at bar, however, and in the case of Reinhard v. Columbus,supra (as held in the ease), the arrests not being upon affidavit and warrant, were prima facie unlawful; and it is therein held that where an arrest is unlawful it can not be said that if cash or a bond is exacted, that the cash is “voluntarily” paid or the bond “voluntarily” given. The case of Reinhard v. Columbus, supra, seems to. us to answer every legal question submitted to us in this case, and I read from the syllabus:

“1. It is illegal, unless authorized by statute, for a police officer or magistrate to receive money in lieu of bail for the appearance of a person accused of a criminal offense.
“2. A police officer arrested a person for an alleged misdemeanor under a state law before any charge had been preferred against him or warrant had been issued for his apprehension; and demanded from him, while under arrest, a deposit of money in lieu of bail for his appearance before the mayor, which deposit was made by the person arrested, to avoid imprisonment. The money was paid into the city treasury, and afterwards the city, by its promissory note, paid the same to the county'; but while the money was in the hands of the city the party who was arrested demanded of the city that it pay over the same to him, which the city refused to do. In an action against the city by the party arrested, to recover the money, in which the legality of his arrest became a material issue, it was incumbent on the defendant to show that such a state of facts existed as justified the officer in making the arrest without the previous issue of a warrant, and that he did not detain the party arrested an unreasonable time before obtaining a legal warrant.
“3. Unless established by satisfactory evidence that the circumstances were such as to authorize the officer to make the arrest without the previous issue of a warrant, the payment of the money by the party arrested as a substitute for bail for his appearance, and to avoid imprisonment, is to be deemed an involuntary payment, and the sum so paid may be recovered by him in an action against the city, as money by it had and received for the use of the plaintiff. ’ ’

The.matter is fully discussed by Dickman, Judge, and in the course of his opinion a number of authorities are cited in support of the decision and of what is set forth in the syllabus.

In the case at bar there was no evidence submitted tending to prove that the defendants in the police court — Brusoe and his tvife — were in the commission of the crime charged, or were discovered by the officer in the commission of the crime charged, at the time he made the arrest without a Avarrant. Therefore, there being in the case at bar no testimony tending to shotv that there had been a legal arrest, and it appearing prima facie to have been an illegal arrest, the exaction of the money under such circumstances can not be said to have been a voluntary payment or delivery of the money. Precisely what the court beloAV had in view, precisely Avhat defect it found in the plaintiff’s case, Ave are not advised.

Peter Emslie and A. C. Bowersox, for plaintiff in error.

M, B. Brailey, City Solicitor, for defendants in error.

It is argued that even though the plaintiff had a cause of action against the City of Toledo, he has none against The Retreat ; that the money can not be followed into the hands of this institution. Now it appears that the money was not received by The Retreat in the ordinary course of business, as that phrase is used in law — it Avas not received for a consideration. The Retreat Avas the beneficiary; The Retreat received the money as a gift, a gratuity, and the court holding in this case of Reinhard v. Columbus, supra, that in a case of this kind the money can be recovered back as money had and received to the use of the person paying it, the city became substantially a trustee for the parties paying in the money, and Avas bound to hold the money for them, and one receiving these funds from the trustees without consideration, acquires no better title thereto than the trustee had, and is bound upon demand of the person entitled to the fund, to deliver it up, and, therefore, in our opinion, a prima facie case was made out against The Retreat, and the action of the court in taking the ease from the jury was Avrong and erroneous, and for that reason the judgment of the court below will be reversed and the case remanded for a new trial.

It may be that upon the first trial there was some testimony that convinced the jury that the arrest was legal, and that therefore the city was exonerated. Unless that Avere true, we can not understand why the city should have prevailed.


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    ERROR PROCEEDINGS IN CONDEMNATION CASES.
    [Circuit Court of Lucas County.]
    The State of Ohio, ex rel Henry Keller, Frank Keller and Andrew Keller, Jr., as Keller Brothers, v. Richard Waite, Probate Judge of Lucas County, Ohio.
    Decided, October 10, 1903.

      Appropriation — Proceedings in Probate Court — Final Order — Prosecution of Error Stays Execution of Judgment — What Damages the Bond Should Cover — Section 6434 — Mandamus Will Not Lie to Compel Payment of Verdict.

    1. An order of the probate court confirming a verdict in an action by • a railroad company for the appropriation of land is a final order, to which error can be prosecuted without first paying the amount of the verdict into court. (Parallel eases — 6 C. C., 362, and 6 C. C., 531).
    2. The prosecution of error by the railroad company, and the giving of a sufficient bond, acts as a stay of execution of the judgment confirming the verdict, and the probate court can not be compelled by mandamus to require that the amount of the verdict, with interest and costs, be paid to the parties. entitled to it, or deposited in court “within the time required by law.”
    3. The supersedeas bond required in such a case should be sufficiently broad to cover all the damages or loss that may result to the land owner by reason of the prosecution of error, including costs in the probate court, and expenses and attorneys’ fees, in the event the railroad company should finally refuse to take the .property; but it is not the office of a bond in such a case to protect the land owner against such loss, if any, as he may suffer from his inability to sell or encumber the land during the pendency of the error proceedings.
    Hull, J.; Haynes, J., and Parker, J., concur.
   This is an action in mandamus brought to require Richard Waite, Probate Judge of Lucas County, by writ of mandamus, to make a certain order in an appropriation proceeding in the probate court of this county. The defendant refused, upon motion, to order the Toledo, St. Louis & Kansas City Railroad Company — known as “The Clover Leaf” — to pay into court the” amount of a verdict, to-wit, $8,411, awarded by a jury to the relators in this case, in a proceeding to condemn and appropriate property for railroad purposes. The refusal of the judge to make this order is the basis of this action, and the petition asks that the judge be required to amend the journal of the court so as to allow said order instead of refusing it. The action came on for hearing before us on a petition applying for a writ of mandamus and a demurrer to the petition, the demurrer being made upon the ground that the petition does not state sufficient facts to warrant the issuing of a writ of mandamus. The question might have been raised without the filing of a demurrer, but simply upon the face of the application.

The facts briefly are that proceedings were commenced in the probate court to condemn and appropriate certain land belonging to the relators, and after the preliminary proceedings and the finding by the court that it was necessary to appropriate, a trial was had in due and proper form, and on the 13th day of August, 1903, a verdict ivas rendered by the jury for $8,411. On the 25th of the same month a motion for a new trial, made by the railroad company, was overruled and the verdict was confirmed by the court according to the provisions of the statute, and a judgment entered. After that, on the 21st day of September, a petition in error was filed by the railroad company in the court of common pleas to reverse the judgment, and bond given to stay the execution of the judgment, under Section 6718 of the Revised Statutes. Within ten days after thirty days had expired from the time the judgment was confirmed, the motion to Avhich I have referred was filed in the probate court, under Section 6434, Revised Statutes, and on the 30th of September the motion was heard by the court and overruled, the court refusing to order the railroad company to pay into court the amount of the verdict, on the ground that the railroad company had filed a petition in error in the court of common pleas to reverse this judgment, and had given an undertaking in the court of common pleas in said cause, under Section 6718, to stay execution in said cause. These reasons for the action of the court are set forth in the journal entry.

It is argued that the railroad company, by letting the time go by, within which they are required by Section 6434, Revised Statutes, to pay the money into court — and instead of doing which, they have prosecuted error in the common pleas court— should be regarded as having abandoned their rights in the premises to appropriate; that the probate court, under Section 6434, should have ordered the railroad company to pay this money into court notwithstanding the fact that it was prosecuting error in the court of common pleas and had given an undertaking there to stay execution.

It is contended by the relators that they should not be required to wait until error is prosecuted through the various courts by the railroad company; that .they have a right to have the appropriation proceedings in the probate court ended, one way or the other — either to have their land taken and paid for, or the railroad company adjudged to have abandoned its rights, and required to pay the costs and expenses of litigation, including attorney’s fees, as provided in Section 6434. It is urged that the pendency of these proceedings in the courts creates a cloud resting upon the title of this property that prevents the owner selling it and converting it into money, if they see fit, or encumbering it by mortgage or otherwise; that, in fact, their property is tied up and their right to sell or encumber it as their own private property is interfered with and taken from them during the pendency of these proceedings, and that for such interference they have received no compensation, and that in view of these facts they were entitled to the order which they asked of the court.

The Constitution of the state provides that private property shall not be taken for such a purpose as this unless compensation is first made in money or secured by the deposit of money. The various sections of the statutes relating to appropriation proceedings lay down the method in which the appropriation of property shall proceed, which are in accordance with the safeguards and provisions of the Constitution. It is claimed that a railroad company can not prosecute error from an order of the probate judge confirming a verdict — that it is not a final order; that error can not be prosecuted until the amount fixed by the jury has been paid into court. We hold, however, and it has been decided in this court, that the order of the probate court confirming a verdict is a final order to which error can be prosecuted under Section 6708, Revised Statutes. That order is a judgment, and it is so called in the statute; it is a judgment to all intents and purposes, although it does not require the company to absolutely pay the money in; it has an option to pay it in, or abandon; but before it pays the money in it may prosecute error to the order of confirmanee. This has been held by this court in a case decided at the January Term, 1892, and the question fully discussed by Judge Haynes, who delivered the opinion. The case is reported in the 6 Vol. Circuit Court Reports, page 521 (Toledo, Ann Arbor & North Michigan Railway Co. v. The Toledo & Michigan Belt Railway Co). The syllabus is:

“A petition in error can not be prosecuted to reverse the finding and order of the probate court made upon the preliminary hearing in proceedings instituted and conducted under the provision of Section 6414 and 6453, Revised Statutes, relating to the appropriation of private property for public uses until after the verdict of the jury has been rendered, and judgment under Section 6432, confirming it, has been entered.”

And in another ease found in the same volume, page 362 (Toledo Consolidated St. Ry. Co. v. Toledo Electric St. Ry. Co.) —two cases being heard together; it is so decided, also by this court, the opinion being delivered by Judge Scribner, and in which many other questions were discussed.

The sixth paragraph of the syllabus is as follows:

“Where, in appropriation proceedings, instituted and carried on in the probate court under the Revised Statutes (Sections 6414, 6453) a verdict fixing the amount of compensation to be paid has been rendered by the jury empanelled in the case, and an order or judgment of confirmation of such verdict entered by the court under Section 6432, proceedings in error may be prosecuted under Section 6708, by the defendant in the proceedings, to reverse such order or judgment of confirmation, before the compensation awarded by the jury has been paid, or the order provided for in Section 6433 made.”

This case went to the Supreme Court and was affirmed (Toledo Consolidated St. Ry. Co. v. Toledo Electric St. Ry. Co., 50 Ohio St., 603). While this question was not discussed by the Supreme Court in the opinion, it was before the court, and if error could not have been prosecuted in the ease the Supreme Court would have had no. jurisdiction to hear it. The same holding was made in Cincinnati, J. & M. Ry. Co. v. Barcalow, 4 C. C. R., 49, the opinion being delivered by Judge Smith.

So that the railroad company is properly and lawfully prosecuting error to this order of the probate court confirming the verdict, without first paying in the money; and they have given an undertaking to stay execution under Section 6718, which provides that:

“No proceeding to reverse, vacate, or modify a judgment or final order rendered in the probate court, common pleas court or circuit court, except as provided in the fourth subdivision of this section, and in sections six thousand seven hundred and twenty and six thousand seven hundred and twenty-one, shall operate to stay execution, unless the clerk of the court in which the record of such judgment or final order is made take a written undertaking, to be executed on the part of the plaintiff in error to the adverse party, with sufficient surety as follows:
‘ ‘ 1. When the judgment or final order sought to be reversed directs the payment of money, the written undertaking shall be in double the amount of the judgment or order, to the effect that the plaintiff in error will pay the condemnation money and costs, if the judgment or final order be affirmed, in whole or in part.”

Pursuant to this section the company has given an undertaking in the amount of $17,000. Section 6437 of the chapter on the Appropriation of Property provides expressly for error proceedings in appropriation cases. It provides: ■

“Either party may file a petition in error in the court of common pleas ,of the proper county, within thirty days from the rendition of the final judgment in the probate court, and the proceedings in error shall be conducted as in civil actions; but the corporation may, on the rendition of the final judgment in the probate court, pay into said court the amount of the judgment for compensation and costs therein rendered, and proceed to enter upon and appropriate the property, notwithstanding the pendency of the proceedings in error.”

The statute therefore provides that the corporation may, if it choose, pay into the probate court the amount of the judgment, notwithstanding the pendency of proceedings in error, and take possession. In this case it lias not paid in, but bas proceeded in error without so doing. Section 6438 provides that if the judgment is reversed in the court of common pleas the case shall be set down for trial in that court. The case does not go back to the probate court, but is tried in the court of common pleas de novo, except so far as the preliminary proceedings are concerned, which are not heard over again by the common pleas court, but the appropriation proceedings proper by way of determining the value, etc., are tried in the common pleas court before a jury the same as in the probate court; and there are various provisions as to costs. And it has been decided by the Supreme Court that the reversal by the common pleas court of the judgment of the probate court can not be reviewed by the circuit court or the Supreme Court on error, but the ease must then be set down in the common pleas court for trial according to the provisions of this section.

So we find that there was a final judgment entered in this case; that proceedings in error are properly being prosecuted from that judgment, and the question is, whether, under this state of facts, the land owners had a right, under Section 6434, to require the railroad company to pay this amount of something over $8,000 into court, or, failing to do that, that it be held to have abandoned its rights in the premises, and be required to pay the costs, including the attorney’s fees, and lose its right to appropriate the property! This is the claim of the relators; and it is further claimed that in any event the bond which was filed in the court of common pleas is not sufficient to protect the relators in all of the damages 'that they may suffer on account of these proceedings in error.

Section 6434 provides:

“The corporation may abandon any case or proceeding after paying into court the amount of the defendant’s costs, expenses, and attorney’s fees, as found by the court. If the corporation fail in any case to make payment or deposit, as provided in the preceding section, within thirty days after confirmation of the verdict, the probate judge, on motion of the party entitled to such payment, to be filed within ten days after the expiration of said thirty days, shall enter an order directing the corporation to make such payment or deposit within thirty days after the date of such order; and unless such corporation, within said thirty days, make such payment or deposit, it shall be held and considered to have thereby abandoned the property, rights, or interests so appropriated and all claims thereon, under its proceeding, and the judge shall issue an order to that effect; the judge shall also enter a judgment against the corporation, and in favor of the party entitled to such payment, for such amount of expenses, including time spent, and attorney’s fees incurred by him in the proceeding, as the court, upon the evidence offered in that behalf, deems just and reasonable, for which execution may be issued against the corporation; and the directors of the corporation, individually, shall be liable upon such judgment, and may be made parties thereto by action.”

In this case more than thirty days have expired from the time of the confirmation of the verdict. The relators filed a motion within ten days after the expiration of the thirty days, asking the court to enter an order directing the corporation to pay the money into court, or deposit it with the court within thirty days. This the court refused to do; and, there being no such order as that on the journal, it is urged that the relators had no right to make a motion, and that the court had no jurisdiction to entertain a motion to require them to pay the costs and attorney’s fees. That motion and order is predicated upon the former one, which required them to pay the money into court, and they claim that they now have the right to have their attorney’s fees and expenses. I will quote the exact language of the petition showing what we are asked to do in this case, which is found in the prayer of the petition:

“Wherefore, plaintiffs pray that the said defendant may be ordered and required to correct the journal of said court, and to enter thereon, as of the proper date, the order asked for in said motion, by said judge overruled on said 30th day of September, 1903, and for all other and proper relief.”

And that motion was this:

“Now come the defendants Henry Keller, Frank Keller and Andrew Keller, Jr., and move the court to direct the plaintiff, The Toledo, St. Louis & Western Railroad Company, by order, in the manner provided by law, to make payment to the parties entitled thereto, or deposit with the probate judge the amount of the verdict in this action, to-wit, eight thousand four hundred and eleven dollars, with, interest and such costs as have lawfully accrued in the case up to the time of said payment, within the time allowed by law. ’ ’

This exact question has never been passed upon by the Supreme Court, but there are several decisions of the Supreme. Court bearing on different questions arising out of the appropriation of property and the rights of the parties and the powers and duties of the court.

It was held by the Supreme Court in State v. Meiley, 22 Ohio St., 534, that a probate judge could not be compelled by mandamus to pay the money over to the party entitled to it after it had been paid into his hands, for the reason that the probate judge was liable in an action personally upon his bond, and therefore that mandamus would not lie.

In State v. Railway Co., 17 Ohio St., 103, the court held that where a railroad company had abandoned the proceeding after verdict it could not be compelled to pay the amount found to be the value of the land by the jury; the railroad company in that ease having expressly abandoned the land, and, besides that, having constructed the railroad over another piece of land.

And in Meily v. Zurmehly, 23 Ohio St., 627, the court hold that when a railroad company takes land and takes possession of it, it must pay the money into court and the probate judge must pay the money over to the land owner, notwithstanding proceedings in error have been commenced by the railroad company. After stating the facts this is stated in the syllabus:

“Ileld: That it was the duty of the probate judge on the demand of the party in whose favor the judgment was rendered, to pay over to him the amount of such judgment, notwithstanding the pendency of the proceedings in error and the objection of the corporation; and his failure to do so is a breach of his official bond.”

So that we find by this case, that if the probate court had required the Clover Leaf Road .to pay this $8,411 into court, that the land owners would have had the right to demand the money of the court and the court would have been compelled to pay it over to the land owners, and the railroad company would have had to take its chances on being able to recover back any of the money, in case the judgment should finally be reversed by a court of error on the ground that the judgment was excessive or that the court had proceeded according to some erroneous rule as to the measure of damages, or for any other reason. The moment the money is paid into the hands of the probate judge the land owner has a right to it and it is the duty of the judge to pay it over to him.

Wagner v. Railway Co., 38 Ohio St., 32, is an interesting case. In discussing "some of the questions arising upon matters of this kind, the court say, on page 36 :

“Something more than a verdict of the jury is required before the corporation can deposit the money and demand possession. ’ ’

The question there was whether the railway company had a right to go into possession of the property before the verdict had been confirmed by the court, under Sections 6432, 6433.

Section 6432 provides:

“The jury shall render its verdict in writing, signed by the foreman, to the judge, who shall cause it to be entered of record; and unless for good cause shown, upon motion to be filed within ten days after verdict is rendered, a new trial be granted, the judge shall enter a judgment confirming such verdict.”

Section 6433 provides:

“Upon payment to the party entitled thereto or deposit with the probate judge, .of ..the amount of the verdict, and such costs as have lawfully accrued in the' ease-up to the time.against.the. corporation, the corporation shall be entitled to take possession of, and shall hold the property, rights, or interests so appropriated, for the uses and purposes for which the appropriation was sought, as set forth in the petition, and the judge shall enter of record an order to that effect, and if necessary, proper process shall be issued to place the corporation in possession thereof.”

The court held in Wagner v. Railway Co., supra, that the railroad company could not take possession of the property and proceed to convert it to its own use until the verdict had been confirmed by the court. ' They say, on page 36:

“The Constitution contemplates a judicial proceeding, in which the effect of the judgment is to divest the owner of the title and possession of his property, and to invest both, to the extent of the condemnation, in the corporation. No right of possession is divested until the appropriation is complete.”

It appears from the Constitution and these sections of the statutes as stated here by the Supreme Court, that a judicial proceeding is contemplated; that a jury shall be -in the jury-box to pass upon questions of fact, and a judge on the bench to decide the questions of law, and the jury is charged and the trial proceeds in the ordinary way; and under the sections relating to error, the railroad company has the right, upon confirmation of the verdict by the court, to prosecute error, as in civil eases, to the court of common pleas. And in our judgment the prosecution of error and the giving of an undertaking, if one be given sufficiently broad to cover any damage that the land owner may sustain, acts as and causes a stay of the execution of the order and judgment of the probate court confirming the verdict of the jury. That judgment is in the nature of a judgment for money, but the railroad company is not required to pay it, for it may abandon its rights; but if the railroad company desires to take possession, as provided for by Section 6434, which has been read, the company is first required to pay the money into court for the benefit of the land owner. But it is of this judgment confirming the verdict that the railroad company complains. It complains in its motion for a new trial and in its petition in error, among other things, that the court permitted damages to be awarded to the land owners for personal property — for machinery, and perhaps some other property which were not fixtures — it complains of that ruling of the court; complains that the judgment is excessive, and to correct these errors which it claims occurred upon the trial, it filed its petition in error in the court of common pleas and gave, its bond to stay execution. Now it would be of but little value, in many eases to the railroad company to provide that it might prosecute error when such a judgment is entered, and at the same time to require that it immediately pay into court for the benefit of the land owner the amount of money that had been awarded by the jury. Error is prosecuted in such a case, not to settle some.mooted question of law,-something in debate or dispute, but it is prosecuted in order that by the jiidgment of a reviewing court a less amount may be awarded to the land owner, upon the ground that errors have been committed by the court or jury and a larger amount has been awarded than should be to the owner, and the plaintiff in error seeks in such a ease to reduce the amount that shall be awarded and paid; and to require the company, in order to retain its rights, to pay into court the amount of the judgment of which it is complaining notwithstanding a bond has been given, and to have it paid over to the land owner, we think would be very far from a proper construction of these statutes. Section 6434, providing for this order and the payment of the money into court, is to be construed in connection with the other sections of the statute providing for error proceedings; it is to be read in the light of those sections; it was the purpose of the Legislature to provide means for the railroad company to prosecute its case in error in the ordinary way, and to preserve its rights in the same manner that they might be preserved in a civil action. The statute says that error may be prosecuted from the judgment of the probate court as in civil actions. We are of the opinion, assuming that the bond was sufficient, that Judge Waite was right -when he refused to enter the order asked in this case requiring the money to be paid in court, upon the ground that error was being prosecuted in the court of common pleas and that an undertaking had been given. We take only this exception to the proceedings — which may be cured — and that is, that the bond which was filed in the court of common pleas, in our judgment, is not broad enough to cover all of the damage or loss that might result to the land owner by reason of the prosecution of the proceedings in error, in that there is no provision in the bond securing the payment of the costs in the probate court and expenses and attorney’s fees in that proceeding, in case the railroad company should finally abandon its rights to appropriate and refuse to take the property if the jugdment should be affirmed in the higher courts. For the railroad company would still have the right, as provided in Section 6434, to abandon its rights in the probate court and refuse to take the property, and in that event it would be required to pay the costs, expenses and attorney’s fees which accrued in that court. There is nothing in this bond which was filed to cover such possible costs or expenses. The bond was perhaps large enough to cover any probable amount of epsts and expenses that might accrue in addition to the judgment, it being for $17,000 — but we are of the opinion that an additional bond should be filed, under Section 6725, which provides:

“Execution of a judgment or final order, other than those enumerated in this chapter, of any judicial tribunal, or the levy or collection of any tax or assessment therein litigated, may be stayed on such terms as may be prescribed by the court in which the petition in error is filed, or by a judge thereof.”

It is our judgment that the court of common pleas, proceeding under this section, should prescribe the form of the bond and the amount, to secure these possible costs and expenses to which I have referred. It is plain here that the railroad company is prosecuting error in good faith and have undertaken to give a bond which would protect the land owner, and we take it for granted that a bond will be given in the court of common pleas in accordance with the suggestions made in this opinion; and when that is done, the petition may be amended setting that forth, or an answer may be filed setting that up, and the application for a writ of mandamus will then be denied and the petition dismissed. We think counsel should go to-the court of common pleas and ask that court to fix the amount and prescribe and approve of the form of the bond as provided in Section 6725.

It is argued that there is no provision in the bond that has' been given to protect relators, the land owners, against any damage they might suffer by reason of their inability to sell their land or encumber it by mortgage or otherwise during the pendency of these proceedings in error, and that therefore they are not fully protected. We are of the opinion and hold that they are not entitled to such a bond. Although these proceedings are pending, they still have the right to sell,their property. It is not exactly a cloud upon the title, and whoever bought the property would take it subject to these proceedings, but a man who buys any property takes it subject to the right of a corporation to condemn it by appropriation proceedings. Relators’ right to sell their property is'not taken from them or their right to encumber it. If an action was brought to foreclose a mortgage upon property, and the mortgage had in fact been paid, such an action would be a cloud upon the title, but error proceedings might be prosecuted to a judgment, adjudging the mortgage paid and canceled, and such proceedings pending would interfere with the sale of the property as much as this proceeding, but the plaintiff in error would not be required to give a bond to protect the land owner from any damage that he might suffer on account of not being able to sell his property; he would still have the right to sell it or encumber it, and the purchaser would have to take his chances upon the pending litigation. We find no provision of the statute, nor do we think justice requires a bond to be given to cover such possible damage; if there is any damage of that kind, it would come within the rule of damnum absque injuria.

James M. Broten, Frank G. Crane, for relators.

Clarence Broten, Charles A. Schmettan, for respondents.

For the reasons stated, if this bond is given in the court of common pleas in the form suggested by the court, the application for a writ of mandamus will be denied and the petition dismissed.

[Said bond was given forthwith, and judgment entered against the plaintiff.]