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    SEWERS, DRAINAGE AND RIPARIAN RIGHTS.
    [Circuit Court of Lucas County.]
    Samuel Hildebrand v. City of Toledo et al.
    Decided, February 27, 1905.

      Seioers — Availability of; to Abutting Owner — May Contest Validity of ■ Assessment — Although a Petitioner for, When — Right to Pollute Water — Not a Part of Riparian Right — Pollution by City — Estoppel — Local Drainage — Permanance of Structure.

    1. An objection by an abutting owner to a sewer assessment, based upon the ground that the sewer is not available to -his lots, is not sustained where the proof shows that the lots for a distance of from fifteen to fifty feet back towards their rear, are on a level with the grad'e of the street in which the sewer is built, from which point they descend from fifty to sixty feet to a river bounding them on the rear, and the sewer is from fifteen to seventeen feet below the surface of the street, and it also appears that with respect to several of the lots the houses and improvements thereon are so built as to permit the carrying off of sewage from cellar levels through such sewer.

      2. The mere fact that an abutting property owner petitioned for a sewer improvement, and stood by without objection or protest and saw it built, does not estop him from thereafter contesting the validity of the assessment against bis property to pay the costs thereof, on the ground that his property is not specially benefited thereby.
    3. The fact that a municipality owning lands abutting on a stream has not taken wholly effective measures in all cases to prevent the pollution of the water thereof, which goes into its water works system, will not hinder or prevent it from taking measures, such as the building of a sewer, to divert the sewage to another course; nor will such fact prevent the collection ofi an assessment levied against the property specially benefited by such sewer, to pay the cost thereof.
    4. The right to pollute the waters of a natural water course forms no part of the riparian rights of the abutting owners; and in order to prevent such pollution it is not essential that a municipality, or other riparian owner who is affected thereby, should condemn any right which such abutting owner-may have or claim in the water.
    5. A municipal riparian owner is not estopped from exercising its right and power to prevent the pollution of a natural water course, simply because it has been guilty of the same offense by emptying its sewage into the stream. Hence the collection by a municipality of an assessment, to pay the cost of constructing a sewer to carry off sewage which otherwise would be drained into the stream, can not be enjoined merely because the municipality has also emptied its sewage into the stream.
    6. Lots are not provided with adequate local drainage, such as will exempt them from paying their share of an assessment, levied to pay the cost of a sewer improvement, unless the right exists to dispose of sewage as it is at the time being disposed of, and the right to continue so to do is one that can not be interfered with— that is, the present right must include not only permanency of structure but also of control. Hence a claim of adequate local drainage, based upon the right to allow sewage to drain into a natural water course running through" a municipality, is not sustained where such drainage will pollute the stream and create a nuisance and imperil the health of other riparian owners.
    Parker, J.; Hull, J., and Haynes, J., concur.
    Appeal from Lucas Common Pleas Court.
   A large number of persons join here as plaintiffs, and they bring their action to obtain relief from assessments laid upon their lands and lots on account of a sewer in this city. The action was begun in the court of common pleas and is in this court upon appeal. Their lots and lands are described in the petition, .and it is only necessary to say with respect to their location, in a general way, that they lie along the bank of the Maumee river in the upper part of the city of Toledo in the vicinity of where the water works standpipe and power house, etc., stand, extending from along in that vicinity up the river; and at about that point the water, which is supplied to said city by an intake pipe, is taken from the Maumee river. These are all so-called “river lots;” they face upon Broadway and extend from .Broadway back to the river, the owners of said lots having the ordinary riparian rights attaching to lots and lands along the river. The sewer on account of which their lots and lands are assessed, begins in Broadway and extends along the fronts of their lots until it connects with another sewer by which the sewage is carried in a northwesterly direction until it empties into Swan creek. By Swan creek it is brought down a distance of perhaps three miles or less, into the Maumee river at a point three miles below the water works plant or power house. The sewer at the front of these lots is from sixteen to seventeen^.feet below the street grade. The greater part of each of these lots is below the street grade. The depth of the lots upon the street grade, that is to say at the same elevation as the street grade, varies from fifteen to fifty feet, and it appears that all of the lots have pai’ts that abut upon the street and have as great an elevation as the street grade. From these poixxts — from fifteen to fifty feet back from the street — 'the lots descend from forty to sixty feet with more or less abruptness to the water, and the whole depth of each of the lots is from 150 to 250 feet.

No fault is found with the proceedings except in the matter of the laying of the assessxnents. No complaint is made of any irregularity in the proceedings affecting the validity of the assessments, but it is claimed that no pax*t of the costs of this sewer may be rightfully laid upon these river lots, for several reasons:

First. Because they have “sufficient natural drainage and sewerage into said river,” and under the statute, original Section 2380 (repealed 96 O. L., 96; see 1536-213), where a lot has sufficient natural drainage, it can not be assessed for artificial drainage.

Second. Because the sewer is not available to these lots, it being laid at too high a level above these lots to make it possible for these lots to use it for the disposal of their drainage.

The attack is upon the assesssment in toto. If any part may be sustained, it is not shown nor contended that the amounts levied are too large.

Disposing of the second claim, i. e., that the level of the sewer is laid too high to be available to these lots, the proof shows that the fronts of the lots, as I have said, on the street, for a distance of from fifteen to fifty feet back towards their rear, are on a level with the grade of the street; that from this point they descend to the river, so that it is apparent that these parts of the lots so on the level of the street are from sixteen to seventeen feet above this sewer and, therefore, they are in a situation so that they could use this sewer for sewage. In the ease of many of these .lots the houses and improvements upon them are built towards the fronts of the lots and on levels permitting of the carrying of sewage from closets, etc., even at cellar leyels, into this sewer and, therefore, they can not escape all the b'ltrdens of the costs of this .sewer on the ground that the sewer can not be used for them; and, as before stated, if any part of the assesssment may be upheld, it is not shown that the amounts levied are excessive; there is no claim of that kind made and no evidence submitted that would enable us to consider it if the claim were asserted; so that we find and hold that the plaintiffs have failed to sustain that ground of relief.

There remains the other ground, i. e., that they have and always have had sufficient natural drainage or sewerage; and this they assert with respect not only to the parts of lots which lie on the side of the hill, but with respect to the parts that are at as high or higher levels than the street grade.

This allegation of fact the city denies. It is conceded by the city that the property lies so that it may be readily drained into the river and so that its sewage may be readily disposed of by emptying the same into' the river; but the city insists that the rights of the proprietors to thus dispose of their sewage is qualified by the rights of the city and the community and persons having riparian rights in and to the river and especially of the lower proprietors, to have the stream kept pure, and by the right and power of the city in the exercise of its police and governmental power to prevent the putting of anything impure into the river that may contaminate or lender unwholesome the water supply of the city; and the city contends that the plaintiffs’ right to east impurities into the stream, as thus qualified and subject to control and even prohibition, does not amount to adequate means or facilities for sewerage, within the purview of the statute.

And the city further says that in this particular instance the casting of sewage from these lots into the river will contaminate the water so near to the intake of the water works system whereby water is furnished to the residents of the city for drinking and culinary purposes, that such water will be rendered impure and unwholesome, and that part of the purpose and design of the city in diverting this sewage and other sewage that may originate on these lots and in that locality, to Swan creek and thence into the river, is to accomplish the sanitary result of keeping the water pure in the region of the water works intake.

The plaintiffs assert, in part in their petition (evidently in anticipation of this defense) and in part in their reply, that the drainage and sewage from their lots does not or would not pollute the water of the river so as to render it inimical to health or in any way injurious to the people using the water of the river for drinking or culinary purposes. They also aver in their petition:

‘ ‘ That the said council of said city are trying to prevent said landowners from using their natural and adequate sewerage and 'drainage, to-wit, the Maumee river, for the drainage of their said lands, and are trying to compel these plaintiffs to drain into Swan creek over a mile away, at a very large expense to plaintiffs, all on the ground and for the reason to preserve the purity of the water of said river for drinking and culinary purposes for the people of said city generally; that the public water works of said city located on said river takes'water from said river a short distance below plaintiffs ’ said property, and the said city of Toledo is seeking to prevent these plaintiffs from utilizing the natural drainage of their lots for the benefit of the public at large of said city.

“The council of said city drain the sewers of said city into said river below said waterworks and thereby use said river for the outlet of its sewers, and by the construction of said sewer No. 858 the said council seeks to prevent these plaintiffs from using the natural, sufficient and adequate drainage of their lots and to compel them to pay for the useless and expensive sewer without any special benefits to the plaintiffs’ said lands.

■ “That it is one of the property rights of the owners of each of said lots and parcels of land bounding on said river, to drain his real estate into said river, and such right has never been condemned, acquired or taken away by the said city or otherwise. ”

And also in their reply:

“Plaintiffs further say that the sewer described in plaintiffs’ petition and constructed in Broadway empties into the Hawley street sewer, which empties into Swan creek, which empties into the Maumee river about one mile below the public water works of said city; that the water in the Maumee river flows up or down said stream according to the direction of the"winds; that when the winds are from the northeast, which is a, considerable portion of the time, the water of said river flows through the said city southwesterly up stream past the mouth of Swan creek and all the sewers constructed by said city into said river and beyond the public water works and thereby carries the sewage emptied into said Swan creek and said river by the sewers of the city including the said Hawley street sewer up past the water works of said city, where the said water works takes water for the supply of the inhabitants of the city, and thereby the Broadway sewer pollutes the water of the said Maumee river, and these plaintiffs say that when plaintiffs’ said property is drained and sewered into said Broadway sewer as constructed by the said city, the sewage therefrom ultimately empties into the Maumee river, and the water of said rivér will be affected the same 'as if plaintiffs’ lots were drained and sewered into said river direct.”

These allegations are denied by the city. Those averments in the petition are specifically denied, and those averments in the reply are denied under the law. Now the plaintiffs by these averments deny that they do or will pollute the water of the river.

Secondly, they assert as an absolute right their right to cast sewage into the river, even if the result will be to pollute its waters, and that that right will endure until taken away from them by condemnation proceedings whereby they would recover compensation on account of the deprivation.

Thirdly, they seem to assert, as a sort of estoppel, or as something that renders the city in pari delicto, so that it can not come into court with clean hands — so that it must first cast the beam out of its own eye before it may rightfully complain of the mote in plaintiffs’ eye — that the city is rendering the water of the river impure even at the water works intake, by emptying its sewers into the river at points lower down the river. This reminds one of the fable of the wolf that complained of the lamb, farther down the stream, that it was muddying the water; but the evidence gives it a slightly different aspect here.

Before proceeding to discuss the facts established by the evidence upon these issues and the law applicable thereto, I will dispose of another matter.

It is alleged in the answer by the way of estoppel, that the plaintiffs petitioned for this sewer and stood by and saw it built and made no objection or protest, though they must have known they would be called upon to help defray the expenses of its construction. That appears to be true, as to some of them at least, but we find nothing in that to estop them from insisting that they shall not be compelled to pay any part of the cost on the ground that they are not at all specially benefited. They may well ask the city to make an improvement in their part of the city that may operate as a general improvement to that quarter of the city, without waiving their right to be exempt from any >'neeial assessment unless they receive a special benefit.

Now, I shall give a little attention to the evidence upon these disputed questions, as to whether the plaintiffs are rendering the waters of the river impure at a point where it is likely to affect deleteriously the waters used for culinary purposes and drinking purposes by the city, and as to whether the city is offending in the same way or in the same degree. We have listened to the testimony of the people of the neighborhood, who are unlearned with respect to the science of bacteriology, that has been brought forward here; men of ordinary information and judgment; men generally who were interested somewhat in the controversy; and they seem to think, and undoubtedly do think, and testify that there is, at times, such a setback of the currents of the river from downstream upstream, so to speak, as to bring to the water works intake all the impurities cast from the sewage system of the city into the river lower down; and they also testify that the sewage that they empty into the river by their private drains is infinitesimal in comparison with the vast volume of sewage that is emptied in by the city lower down; and this they testify to in support of their allegation with respect to the rendering of the water impure; that the city is the greater offender and does not stand in an attitude where it can complain, or, indeed, enforce any sort of regulation which will prevent impurities from being east into the river by private proprietors.

It appears from this evidence and other evidence in the case, that from a point some distance above the water works intake down to the bay and thence to the lake, the water in the Maumee river and bay stands practically at a level. It has been described, and with propriety, we think, as a sort of estuary. Of course, there is a current to the outlet at the lake — there must be — for all the waters that come from up the river find their way into the lake; and there is generally a very distinct current, especially about the center of the river. About the point where the water works powerhouse is situated, the standpipe, etc., there must be a double channel, the shallowest channel, perhaps, being that on the westerly side of the river and adjacent to these lots; and between that channel and the main or deeper channel are shallows and outlying islands. At times, when the winds are strong from the southwest, the waters in the river at this point and lower down, appear to be driven out into the lake so that the river falls below its normal level several feet — perhaps, four or five feet — and at other times, when the wind sets in strong from the northeast and prevails for some hours, the water is driven back so that it not only reaches its normal level, but raises above that several feet. It is said that when this occurs —these winds from the northeast — there is a very perceptible current in the river upstream — the water flowing back. The fishermen who have made observations of this testify to it— ■testify to the effect upon their boats, their nets, etc., their 'trot-lines, I think they call them. "We are told by the gentlemen of scientific attainments who testified, that as a matter of fact this current is in the upper surface of the water — the upper levels, the upper third of the body of water — that it is not so pronounced at the very surface as it is somewhat lower down, but that the lower two-thirds of the water is not much disturbed, and that, therefore, the matter in the river lower down than the wafer works intake, that which settles into or below this lower two-thirds of .the water, does not carry upstream, and only the matter in the upper third of the water, flowing upon the surface, is carried upstream.

It seems that some of the matter upon the surface of this water that is canned upstream, appears at times to one looking at it, and not making a careful analysis of it, as very obnoxious, so much so that one would not readily and willingly take it into his stomach, without some treatment at least; but the scientific men tell us that this is not as bad as it looks.

We know as a matter of common information, that we can not judge of the wholesomeness of water, or the contrary, by its appearance; that sometimes muddy, roily, nauseating-looking water is comparatively harmless, whereas water that appears to the eye to be entirely pure and even sparkling, sometimes contains the most deadly poisons; and these men who have made a study of sewage and bacteriology — which enters into it to a great extent — say that the matter emptied into the river from the sewers, offensive matter, poisonous matter, the matter that would be injurious to the health of.the people, settles to the bottom of the river, and that even where the winds, as in this instance, prevail from the northeast so as to carry the water up the stream, poisonous matter from the sewers is not to any appreciable degree carried up to the water works intake.

This testimony relative to the effect of the sewage which is emptied into the river below the water works intake, stands uncontradicted; we must rely upon it; we can not despise or lay 'aside the testimony of these men. They are learned in these matters. They are called in to assist and guide the court and their testimony is not disputed. Often, where expert testimony is given, other experts may be found to testify to an entirely contrary state of facts; but in this case experts were not called on behalf of the plaintiffs, and we are bound to say that this testimony should, in our judgment, prevail over that of the opinions of these men upstream, who have formed their judgment from simply observing casually the appearance of the water. I say this with respect to the sewers emptied down the stream; and I should say that the testimony shows that sewers are emptied into the stream as alleged in plaintiff’s pleadings, by the city, at Swan creek and lower down, and one or two sewers nearer to the water works intake.

There is other testimony upon this subject, to which we are bound to give weight and oonsideration — though it was a revelation to us — and that is, that less harm results from the large main sewers, especially where they traverse a considerable distance, even though they carry a large amount of sewage, than results from these small private drains emptying their sewage which originates close to the fresh water, and is emptied directly into the fresh water. I can not undertake to recite or even state — except in the most general and unscientific way — what these gentlemen have testified to; but the effect of it is, that as this sewage flows along in the sewers before it reaches the fresh water, it becomes not exactly purified, but is rendered harmless in a degree; that the bacteria which are injurious to life, and health are assailed and combated and destroyed by other bacteria which are not injurious to the life and health of persons, and that, if the sewage is carried far enough before it reaches the fresh water, these non-injurious bacteria wage upon the others a 3var of extermination and entirely destroy them unless fresh water is reached before their work is completed. But, if the injurious bacteria reach the fresh water without being thus destroyed they may survive for a considerable length of time and be carried a considerable distance in the fresh water, where they receive oxygen, upon which they thrive. Instances are given of such bacteria being carried five and even ten miles in a stream of fresh water. On the other hand the sewage emptied from the houses directly into the river carries with it, without any destruction or mitigation, all of the disease breeding bacteria, and when they reach fresh water there, they survive and thrive.

So the conclusion is drawn by these scientific men from these facts — which are testified to as facts — that even if this water from the city was pushed up by the winds from the northwest towards the intake at the water works, it would carry but little, if any, of the disease breeding bacteria or poisonous substance; whereas the sewage emptied into the river by these proprietors along the bank and originating close to the bank, is carried by the natural currents of the river down to the water works intake, and there is taken into the water works system and ultimately into our systems, if we drink water.

Now that is the situation as it is disclosed to us — stated in a general and imperfect way — and as applicable to the issues here presented.

Taking up these questions presented in the order thus stated:

First. Does or will the sewage from these lots pollute the water of the river, so as to make their use for drinking and culinary purposes inimical to the health of the people of the city?

From what I have already stated, it is apparent that we are led to the conclusion that we must answer this in the affirmative. It does not appear that there is a great deal of this sewage being emptied into the river above the waterworks intake just now; but the plaintiffs are asserting their right to continue to empty it; and, apparently, if this right is maintained, sewage of this character will continue to be emptied in, not only from these lots, but from other lots all along up the rver, in increasing volume, until the water will be rendered entirely unfit to be taken into our water works system.

Second.' Have the plaintiffs such right to drain sewage into the river as they assert and enjoy, without regard to consequences, until it is taken from them by appropriation proceedings ? That is one of the rights which they assert here.

We are cited to the ease of Blue v. Wentz, 54 Ohio St., 247, a case which does not seem to give us any light upon this particular question, nor to be of any special aid to us. It lays down the general principles applicable to surface drainage, defining what may be called the dominant estate and the servient estate, showing the nature and extent of the rights of the dominant estate to flow its water onto and over the servient estate. That is not involved here, we think.

We are cited to Gould on Waters, and I read from Section 544:

“But where perceptible pollution is shown to the damage of the plaintiff, an injunction will be granted to prevent its continuance, although the damage may be merely nominal. * * * A corruption of water will be enjoined, if causing injury to the plaintiff in any rightful use of the water, as by rendering it unfit for manufacturing purposes, or for domestic uses, or for the drink of cattle, or for fish to live in, or when it impairs the health of those in the community. So the accumulation of corrupting deposits in a stream, the pollution of a canal or ditch, the discharge into a stream of heated water, or of the obal of abattoirs, or of sawdust from a mill, will be prevented-by injunction. And the fact that others also pollute the stream, and that the pollution caused by the defendant is an inconsiderable part of the whole corruption is no bar to an injunction. If the defendant has a right to discharge corrupting matter into the stream to a certain extent, he may be enjoined- from polluting the stream beyond his right; but the plaintiff, of course, must show that there has been such an increase. The same, rules apply to the corruption of navigable or tidal waters as to private streams.”

Mansfield v. Balliett, 65 Ohio St., 451, is cited to us. That case is so radically different from this, that it may be said to stand in direct opposition, or to show the opposite side of the shield, for there the municipality was corrupting the waters of a stream and the private proprietor was insisting that he had a right to have the waters come down to him pure and uncorrupted, and that that right could not be taken away from him by the city by the pollution of the waters, unless they first conclemned his right to have the waters come to him pure and uncorrupted. That right was sustained in favor of the plaintiff. I need not stop to consider the case farther. The claim here on the other hand seems to be,'that the right to pollute the waters is a part of the riparian right of these proprietors, that is to say — if we are to give heed to what we regard as established by the evidence here, %, e., that they are polluting this water; though, perhaps, it is hardly fair to counsel to say that they undertake to maintain this position, because their claim is, that they are not polluting the waters. But since we find that they are doing so, we may say — that the right to pollute the water is no part of their riparian right, and to prevent them from polluting the water, it is not necessary for the city, nor for anybody else, to condemn any right that they may have in the waters. Therefore, this question as to their right, we answer in the negative.

Third. Dees the fact that the city may not have taken wholly effective measures in all cases to prevent the pollution of such waters as go into the water works system, hinder or prevent them from taking such measures as they have taken in this instance to divert this sewage to Swan creek, or from enforcing the assessment for such sewer?

We think not. In the first place, it should be borne in mind that the evidence discloses that the harm that may result from the sewer emptying lower down, is trifling as compared with that resulting from such pollution of the waters above the intake. Also that if plaintiffs have the right asserted, the same right inheres in the proprietors of all property lying on and along the river above the water works intake, so that the utter destruction of the stream as a source of water supply may result, unless the city shall condemn and extinguish the right of the proprietors to pollute this stream, and this, we have already said, the city is not required to do.

It is said that the city has no right to pollute the stream. But this is rather aside from the question that we have to consider here, we think. I read from Gould on Waters, Section 545, upon that subject:

“The pollution of streams by municipalities and public bodies in charge of sewage and drainage has occasioned frequent exercise of the preventive powers of equity. Upon principle a public body has no- more right at common law than a private person. Its duty to prevent public nuisance, by taking care of the sewage or drainage of a district, gives it no right to create another nuisance by the pollution of a stream. If special powers have been granted to it by statute for the performance of a given object, it is bound to act strictly within its powers. If it exercises such powers so as to injure the property of individuals, it is responsible for the injury as a tort, unless the act done was strictly necessary for the performance of the object for which the powers were granted; and in such case the remedy of the individual is under the compensation clauses of the act, or, in America, usually under the provisions for exercising the power of eminent domain. Any pollution of a stream by a public body, in taking care of sewage, is, therefore, a nuisance unless expressly authorized,’ and is liable to injunction.”

To acquire the right to pollute waters, condemnation proceedings are appropriate and necessary. But this violation of the law by the city in this respect does not deprive it of i'ts power to mitigate the evil; that is, assuming that it has violated the law by emptying its sewage lower down. It is not necessary that the city shall undo or correct all that it may have done or permitted as a public agency in the matter of drainage deleteriously affecting the waters of the river, either above or below the intake, before it can begin tio exercise the power vested in it, to so plan and provide for the disposal of sewage as to keep the water supply of the city pure and wholesome, or comparatively so. Any blunder that it may have made in this respect does not divest it of jurisdiction or leave it shorn of its power. Were it not so, its blunders, if any, might forever prevent it from improving sanitary conditions. The case is not that of a discrimination in the exercise of police regulations, like that in the ease of Sipe v. Murphy, 49 Ohio St., 536, to which we have been cited.

This attempt to prevent the discharge of sewage into the river above the intake in pursuance of the authority found in’ Revised Statutes, 2433 (1536-544), is, of course, wholly aside from and independent of the question whether both plaintiffs, and the city may not have violated Revised Statutes, 2433 (1536-544), especially as amended April 20, 1904, since it was so amended. Whether they have done so or not, either or both of them does not touch the question of the validity of this assessment laid to cover the expense of a sanitary measure adopted before the amendment of this statute. We conclude that the collection of the assessment can not be prevented on this ground.

The remaining question — which is the primary question — is: Have the plaintiffs adequate drainage, and had they such drainage before this sewer was built 1 The answers made to the questions above stated, at the same time, in a measure, answer this. The plaintiffs had but a qualified right to discharge sewage into the river. The city has a right to prevent ‘the discharge of sewage from their lots into the river directly, and has the right -to divert it into Swan creek, and so into the river lower down. As said by the Superior Court of Cincinnati, in Frey v. Millikin, 2 O. L. R., 303:

“ ‘Adequate drainage for the usual purposes of sewerage’ required to ‘work an exemption for the land from the assessment’ * * * includes not only the idea of permanency of physical structure as intimated by the court * * * but of control. ’ ’

They must not only have the means and facilities for disposition of their drainage, but they must have a right to dispose of it, as they are disposing of it, and the right to continue to do so, and a right that can not be interfered with by the city, and that right we think they do not possess.

From Ford v. Toledo, 64 Ohio St., 92, 94, a case which went up from this court, I quote a single remark which indicates the opinion of the Supreme Court upon this subject. This was a ease which arose in the northwestern part of this city, where an outlet of a local sewer was being carried across some low lands, and in some places was carried over the surface of the ground. The bottom of' the sewer, in places, was higher than the lands, and yet an assessment for local drainage was sustained by this court with repeat to those lands which were lying lower than the sewer. Manifestly, in such case, it could not be assessed so heavily as lands more favorably situated with respect to the sewer; but this assessment was sustained by this court and by the Supreme Court. In this case, the parties undertook to escape from the burden of the cost of the sewer, insisting that they had sewerage facilities; that they could drain into Ten Mile creek, and possibly that was so; but we held that that was not sufficient and made application of the principles that I have already stated.

This is the language of the judge delivering the opinion in the Supreme Court, upon that subject, page 99:

“The drainage of sewage into an open ravine in a city would be inimical to public health, and can hardly be considered such local drainage as the statute contemplates.”

In the case of Stanley v. Cincinnati, a case decided by the Superior Court of Cincinnati, in the fifth clause of the syllabus, the same language is used:

“Drainage of sewage into an open ravine in a city is inimical, to the public health and can not be considered such local drainage as the statute contemplates.”

In the case of Wilson v. Cincinnati, 5 N. P., 68 and 70, it was said with respect to a situation where the outlet might have been cut off by a private proprietor of the land, and where the city, perhaps, might have had a right to interfere, page 244:

“But it is admitted that the old sewer begins and ends on private property; and, therefore, as it is subject to be closed up at any time, and has in fact no proper outlet, we think that it does not satisfy the requirements of the statute, and plaintiffs can not claim exemption thereby.”

That was also a decision of the Superior Court of Cincinnati.

These are all the expressions of opinion we find on the part of any courts as to this particular provision of the statute; but we think they are quite sufficient to warrant us in saying with respect to this case that these proprietors of these lots have no such right to permanently empty their sewage into this stream, the Maumee river, at the'places where their lots touch the river, as exempts them from the cost of a sewer like this— intended to convey the sewage to a point where it may be harmless. We say this qualified right to drain into the river, which does not include the privilege of polluting the stream so as to create a nuisance, and so as to imperil the health of the people who get their water supply from the river below this point, does not amount to sufficient drainage under the statute, or to opportunity for drainage that will exempt plaintiffs’ property from this assessment. This sewer specially benefits their property because it affords them the only feasible and lawful means of sewage disposal from their lots, and it is available for at' least so much of their lots as lie near to or above the level of the grade of the street. What shall be done with their sewage that can not be conducted into this sewer, we are not called upon to say. Presumably they are not assessed on the theory that this sewer affords a means of disposal thereof. One thing seems clear: that they can not lawfully put it into the river until it is sterilized and rendered harmless, and they should not be permitted to do so.

There is another case which throws some light upon the question, and to which I will refer, a decision by the United States Circuit Court for the Southern District of Ohio, Cleneay v. Norwood, 2 O. L. R., 462. In that case the parties were undertaking to escape the burden of a sewer assessment on several grounds, and one ground was that the sewer did not have a proper outlet, that the outlet that was given was one that might injure the health of the community. In discussing that matter, Judge Thompson says, page 465:

“It is claimed, however, in the bill that this sewage system has not a proper outlet ‘and the complainants have as yet no sewers, in fact, to drain their said lots and lands,’ and consequently have not been benefited by the improvement; but in the stating part of the bill, it is alleged upon information and belief:

“ ‘That said sewerage system consists of a large main sewer, into which various smaller sewers, known as laterals or branches, drain, and that the said main sewer, which is the only outlet to the entire system, empties into a small stream, which is not a river or other proper place as required by Section 2370, Revised Statutes of Ohio, and which stream is mostly stagnant during the larger part of the dry or summer season, 'and in which at no time is the volume of water or the current sufficient to carry off the sewage. This stream is known as “Duck creek,” # # * >

“Original Section 2370 (repealed 96 O. L., 96; see 1536-241), provides as follows-:

“ ‘The plan so devised shall, in the discretion of the council, be formed with the view of the division of the corporation into as many sewer districts as may be deemed necessary for securing efficient drainage and sewerage; each of the districts shall be designated by name and number, and consist of one or more main or principal sewers, with, the necessary branches and connections, the main or principal sewers having their outlet in a river or other proper place; and the districts shall be so arranged as to be independent of each other so far as practicable.’

“By the express terms of this section the determination of what is a ‘proper place’ is confided to the discretion of the council, and the lot owners are bound by its action. It is not shown that there is no outlet or proper place, but only that Duck creek, into'which the main sewer empties, ‘is mostly stagnant during the larger part of the dry or summer season, and in which at no time is the volume of water or the current sufficient to carry off the sewage.’

“Manifestly, in the opinion of the complainants, the outlet is- insufficient, but it is not stated as a fact that Duck creek fails to. furnish-any outlet for the sewer. The language, ‘and at no time is the volume of water or the current sufficient to carry off the sewage,’ in the connection in which it is used, means that it does not carry off all the sewage, not that it does not carry off any of the sewage. If it were a fact that the creek Avas insufficient to carry off any or a large part of ’the sewage, unequivocal and explicit language would have been used in stating the fact.

“The bill also calls attention to certain statutes -enacted by the General Assembly of the state of Ohio in the exercise of the police poAver prohibiting the pollution of streams, etc., and prescribing penalties for the violation thereof. The village or its ‘officers and agents may be liable for the violation of these statutes,' but that fact affords no ground for setting aside the assessment.”

And that I quote with more especial reference to the claim that these people should be relieved because the city is emptying its sewage into Swan e^eek, and thence into the river, Now, what we might feel called upon to do in a case that we might suppose of the city emptying its sewage by some system directly into this river at this same point in the manner in which it is emptied there by the plaintiffs, we 'are not called upon to say. It might present a case which would require different action upon our part, but this, as we view it, is a very different case from that.

C. W. Everett and M. D. Merrick, for plaintiff.

U. G. Denman and E. D. Crcune, for defendant.

Our judgment is, that the petition shall be dismissed and judgment will go against the plaintiffs for costs.


source: Caselaw Access Project

license: Public Domain

text:
    SALE BY ONE PARTNER OF ALL THE PARTNERSHIP PROPERTY.
    [Circuit Court of Hamilton County.]
    Michael Sullivan v. The Franklin Bank.
    Decided, February 6, 1905.

      Partnership — Bill of Bale — Covering all Partnership Property — Executed by One Partner — Rights of Creditors — And of Non-Assenting Partner — Attachment—Bet-Off—Pleading—Charge of Court— Possession After Attachment — Bill of Exceptions.

    1. A bill of sale executed in the name of tbe partnership to whom the property belongs, but by one of the partners only, conveys a good title as against a subsequent attaching creditor.
    2. The objection that the plaintiff has not legal capacity to sue is - waived by a failure to plead it, either by demurrer or answer.
    3. Failure of the constable to keep ,a watchman in charge of the property attached, or to prevent the defendants from resuming possession and control of it, is not of itself sufficient to render the levy void, but such action should be submitted to the jury together with all the other facts in the ease for their determination as to whether the levy has been allowed to become void.
    4. A bill of exceptions is not rendered invalid by reason of the fail-1 ure of the trial judge to certify, that it was “settled,” where there was no controversy over the bill, but it w.as allowed as presented.

      5. A refusal to submit interrogatories to tbe jury is not erroneous when there is no request that they be answered in case a general verdict is returned.
    Giéeen, J.; Jelke, J., and Swing, J., concur.
   The Franklin Bank, as plaintiff, brought an action in replevin to recover the possession of certain property belonging originally to the firm of McCarren & Dawson, composed of Frank C. McCarren and William C. Dawson, and alleged that the defendant,' William C. Williams, constable, wrongfully detains the property from the plaintiff.

The defendant, by answer, made a general denial, and also set up the levy of an execution upon the property described in the petition. The ownership and right of possession of the bank to the property is founded upon a bill of sale executed in the name of the partnership by one of the partners only, and dated prior to the levy. The non-assenting partner did not ratify the sale until after the date of the levy of the execution.

The special charges of the court present the question whether one partner without the knowledge and consent of the other, can sell substantially all of the property of the partnership not kept for the purpose of sale, but for continued use in the prosecution of the business.

The plaintiff in error claims that this can not be done, and cites many authorities outside of this state in support of the proposition, but these afford little aid in view of the fact that our own Supreme Court has repeatedly recognized the conflict of authorities upon the quesetion, and has adopted those only which seem to be supported by the better reason. Reliance, however, is placed upon the ease of Holland et al v. Drake et al, 29 O. S., 441, the syllabus of which is as follows:

‘ ‘ One of the members of an insolvent firm can not, either before or after dissolution of the partnership,, make a valid assignment" of all its effects for the benefit of creditors, against the will of a co-partner, or without his assent when he is present or accessible.

. “Where an assignment is so made against the will of the non-executing partner, or when he is present and not assenting, and he subsequently ratifies the assignment, the ratification will relate back to the time of executing the assignment, and give it effect from that date; but not so as to defeat the rights of third persons, acquired in good faith in the meantime.”

While there has been no disposition in subsequent decisions to overrule that case, there is a manifest purpose to limit the application of the principle there announced to the facts of the case. The H. B. Claflin Co. et al v. Evans et al, 55 O. S., 183; Geo. W. McAlpin Co. v. John Finsterwald et al, 57 O. S., 524.

The syllabus in the case of Claflin v. Evans is as follows:

“A managing partner entrusted with the sole charge of the business and effects of the firm, may, in case of its insolvency, make a valid assignment of its property for the benefit of its creditors, without having obtained the consent of a co-partner who is a non-resident of the state where the business was carried on, and absent therefrom; the assent of the absent partner to the assignment in such case will be presumed.”

And on page 190, it is said:

“It is not doubted that one partner may sell any part of the partnership property to one or more of the creditors in payment of the partnership indebtedness, or sell all of its effects to all of its creditors, and if insufficient to satisfy their debts in full, the sale may be so made to them as to secure a pro rata division; and it is not surprising that authorities are found which strenuously maintain that the power of the partner to accomplish the same result by an.assignment to a trustee to make such distribution is included in the agency resulting from the partnership relation. The dissolution of the partnership ensues not less certainly from a sale of the whole of its effects directly to the creditors, than from the transfer to a trustee for their benefit. But we are not disposed to depart from the rule laid down in Holland v. Drake, supra, nor are we disposed to extend it.”

This dictum is so broad and comprehensive that it would hardly go unchallenged unless the court were of the opinion that- it was the law of this state. In the case of McAlpin v. Finsterwald, the proposition of the syllabus is as follows:

“Where, in good faith and for a firm debt, a judgment has been rendered against the firm, by confession, on a warrant of attorney executed in its name and on its behalf by one partner only, without the assent of his co-partner, such judgment can not be impeached, or set aside by a creditor of the firm.”

The distinction is clearly drawn in this case between the right of the non-assenting partner of the firm and the creditor of the firm, the former being entitled under certain conditions and by proper proceedings to question the transfer made by the other partner while the creditor is not.

Under this decision we are of the opinion that the bank acquired a good title to the property by the bill of sale, if executed prior to the levy.

The answer contained no new matter constituting a defense, counter-claim or set-off, as the defendant could prove the levy and the execution under this general denial. Baily v. Swain, 45 O. S., 657.

The motion for judgment, notwithstanding the verdict, was properly overruled, because the objection that the plaintiff has not legal capacity to sue, is waived by a failure to plead it, either by demurrer or answer.

The court, at the request of plaintiff, charged the jury as follows:

“If you find that the constable, Williams, levied upon the chattels described in the petition, but did not continue to maintain a watchman in charge of the property levied upon after March 20, 1899, but on said date left the same where levied on, with no one in charge thereof, and McCarren & Dawson resumed the possession and control of said property, using same in completing their work on the sewer, and continued to do so up to the time of the commencement of this action, then I charge you that said levy made by said constable became void and of no effect.”

And in its general charge, as follows:

“But when Williams made a levy under this judgment and put Meyer in charge as his watchman, if Meyer left a few days later and no one was put in his place, and McCarren & Dawson later took possession of the property again and continued in this possession until the replevin suit was begun, then Williams ’ levy became void.”

The jury would naturally infer from these charges that unless the constable kept a watchman in charge of the property, and prevented McCarren & Dawson from resuming possession And control of the property, whether by his consent or otherwise, the levy became void. Such acts alone were nob sufficient in themselves to make the levy void, and whether they, together with other circumstances, would cause the levy to become so, was a question of fact which should have been submitted to the jury. Murphy v. Swadener, 33 O. S., 85.

Louis J. Bolle, for plaintiff in error.

Burch & Johnson, for defendant in error.

The charges were therefore erroneous, but counsel for defendant in error claims that it was not prejudicial for the reason that the jury by their verdict found that the plaintiff was the owner and had the right of the possession of the goods and chattels taken in replevin, and that they must necessarily have found that the bill of sale was bona fide and not fraudulent; and if the court’s instructions were correct, that one of the partners had power to execute the bill of sale, then any question of levy or the continuance of the levy became unimportant and not material, for if the bill of sale was lawful, any levy was unlawful and a charge as to what did or did not constitute an abandonment of the levy became immaterial. This is true if the jury found that the bill of sale was executed and delivered prior to the levy, but under these instructions, the jury may have found that the bill of sale was executed and delivered after, the levy and before this suit was commenced, and yet returned a verdict for the plaintiff.

It is further claimed that there was no bill of exceptions before this court for the reason that the trial judge did not certify that the same was settled, but only that it was allowed, signed, sealed, and made a part of the record. There was no controversy over the bill, but it was allowed as presented; hence there was nothing for the court to settle, within the meaning of the statute.

The refusal to submit certain interrogatories to the jury was not erroneous, inasmuch as the request therefor contained no condition that the questions, when submitted, shall be answered in case a general verdict shall be rendered. Gale v. Priddy, 66 O. S., 400.

Judgment will be reversed for error in giving the charges above referred to.

       For opinion below, see 1 N. P.—N. S., 559.


text:
    “DEPENDENTS” UNDER. BENEFICIAL ASSOCIATION POLICIES.
    [Circuit Court of Lucas County.]
    Clara A. Starr v. Knights of Maccabees of the World et al.
    Decided, March 18, 1905.

      Mutual Benefit Societies — Authorized Glasses for Whom Policies may Issue — Husband and Wife — Woman Unlawfully Occupying Relation of Wife to Insured — Is a “Dependent,” When.

    1. A woman who has occupied .the relation of wife for a period of twelve years in the honest belief that she was the wife of the man with whom she was living, which relation however was unlawful in that he had a wife living at the time from whom he had never been divorced, is1 a “dependent,” within the meaning of the charter and by-laws of a benefit society which authorizes the designation of dependents as beneficiaries in policies of insurance issued to their members, and is, therefore, as against the lai^ful wife or the heirs of the assured, entitled to the proceeds of a policy of insurance issued to him by the society without notice of such relation, in which she was referred to as his wife and designated as the beneficiary, notwithstanding the policy was issued after she discovered the unlawful relation referred to.
    2. A person who is not of the class for whose benefit a benefit society is authorized to issue a policy of insurance, can not legally be made a beneficiary in the policy, or demand the amount payable upon the death of the assured.
    Parker, J.; Hull, J., and Haynes, J., concur.
   It is not worth while to increase the literature of this case very much. The facts of the case are so well set out in the opinion of Judge Tyler, of the common pleas court, that I shall adopt his statement thereof. And Judge Tyler has cited and commented upon many of the authorities that counsel rely upon, and with his reasoning and conclusions thereon we are contented. His statement of'facts and opinion is as follows:

“This is an action brought by the plaintiff, Clara A. Starr, to recover of the defendant, The Supreme Tent of the Knights of Maccabees of the World, the sum of $1,000 upon a life benefit certificate by it issued to oue Charles E. Starr, on March 26, 1895, whereby it promised and agreed to pay the said plaintiff, as Clara E. Starr, at the death of the said Charles E. Starr, one assessment on its membership, not exceeding in amount the sum of $1,000, upon satisfactory proof of his decease, together with the surrender of said certificate, provided he had, in every particular, complied with its laws then in force or thereafter adopted, and had not obtained his membership by fraud or misrepresentation as to his age, physical condition or occupation.

“The defendant, not denying or desiring to contest its liability, filed an affidavit in this cause, setting forth that one Sarah Styre, without collusion on its part, claimed said sum of $1,000, and that it was ready to'pay the same as directed by the court. Upon its motion the said Sarah Styre was required to appear and to assert her claim or be barred therefrom, and it was ordered to pay said sum into this court.

“With that order the defendant has complied, and the cause proceeds as between the plaintiff and the said Sarah Styre, for the purpose of determining to whom the fund now in court shall be paid.

‘ ‘ The said Sarah Styre has filed an amended answer and cross-petition and an amendment thereto, which are skillfully drafted and reflect credit upon her counsel. The allegations thereof evidence a thorough appreciation of the legal questions involved, and the plaintiff, by filing a general demurrer thereto, has presented them to the court for adjudication.

“The defendant, the Supreme Tent of the Knights of the Maccabees of the World, is a corporation, incorporated on September 12, 1885, under a law of the state of Michigan which, among_other things, provided, ‘ That any number of persons, not less than five, may become a body corporate and politic, for the purpose of securing to the families, or heirs of any member, upon his death, a certain sum of money, to be paid by such corporation, either out of its funds or by an assessment made upon the members of such corporation,’ and that it should ‘only issue certificates or policies payable to the husband, wife, family, heirs, creditors, or assigns of any member.’

“The articles of association of said corporation authorized and empowered it:

“ ‘3. To establish a benefit fund or funds from which, on satisfactory evidence of the death or disability of a member who has complied with all its lawful requirements, the sum of $2,000 in case of 'death shall be paid to his family, orphans, dependents, or legal heirs, as such member may direct.’

“The rules and regulations of said corporation provided, among other things, as follows:

“ ‘Section 174. No beneficiary or life benefit certificate shall be made payable to any person other than the wife, children, dependent, mother, father, sister, brother, aunt, uncle, nephew, or niece of the member. ’

“ ‘Section 175. In the event of the death of the beneficiary or beneficiaries named in the certificate of membership before the decease of such member, if no other designation be made, the benefits shall be paid first to the widow, if living; if no widow, to the children; if no children, to the dependents,’ etc.

“May 25, 1893, the Legislature of the state of Michigan enacted a law pertaining to corporations of the class to which the defendant belonged, whereby it was among other things provided that, ‘Payment of death benefits shall be made only to the wife, husband, 'children and dependent children, mother, father, sister, or blood relatives to the fourth degree, of the member;’ provided further, that, ‘When the laws of any such association already provide that an affianced wife or any other person who is dependent upon the member for maintenance, food, clothing, lodging, or education, may be made a beneficiary, payment of death benefits may be made to such beneficiary, but no certificate of membership shall be made payable to, nor any death benefits be paid to an affianced wife or any beneficiary by reason of dependency as hereinbefore provided, unless satisfactory proof of such affianced relation or dependency shall have been filed with and accepted by the executive officers of such association.’

“On February 15, 1872, the-cross-petitioner was duly and legally married to one Charles E. Styre, who thereafter assumed the name of Charles E. Starr, and as the issue of such relation, two children were born.

“In the spring of 1875, he willfully abandoned his family and subsequently, without having procured a divorce from his wife, he married the plaintiff with whom he lived and cohabited continuously thereafter until his death, which occurred on February 5, 1904.

“In June, 1894, the said Charles E. Starr became a member of one of the local divisions of the defendant, known as Maumee Tent- No. 9, and on March 25, 1895, the death benefit certificate, upon which this action is based, was issued to him.

“In the certificate the plaintiff is described as bearing to the assured the relations of wife, though the defendant had no knowledge of the facts hereinbefore recited.

“Upon these facts the cross-petitioner bases the claim that the plaintiff is not within any of the classes of persons to whom the defendant was authorized by law to make payment of the fund; that there was a failure on the part of the assured to designate •a lawful'benefieiary, and that'/under Section.,175 of the constitution and by-laws, she is entitled thereto.

“Is the plaintiff a legal beneficiary? It will be conceded by me that the person designated as a beneficiary must be one of the class or classes to whom the insurer is authorized by law to pay the fund.

“In Michigan Mut. Ben. Assn. v. Rolfe, 76 Mich., 146, 151 (42 N. W. Rep., 1094), it is said:

“ ‘No person who is not one of the class for whose benefit the association was authorized can be a beneficiary.’

“To the same effect is Wolf v. Grand Lodge, 102 Mich., 23, 34 (60 N. W. Rep., 445); National Mut. Aid Assn. v. Gonser, 43 Ohio St., 1, and many others.

“In Keener v. Grand Lodge, 38 Mo. App., 543, George Keener, the assured, having a lawful wife, Nellie, abandoned her and thereafter lived with Katie Burke ‘in an unlawful, illicit and licentious way.’ During this relation a death benefit certificate was issued him, payable to her as 'his friend. Subsequently it was surrendered and a new one issued, payable to her as his wife. Thereafter and upon his death bed they were married. It was held:

“First. The power of the assured is limited to appointment of his beneficiary, and no one not so appointed, is entitled to the fund.

“Second. The appointee must be of the class named in the law which ‘brings the association_into being.’

“Third. The relation between the assured and Katie Burke was-unlawful, illicit and licentious; ‘that she was not a dependent or a member of his family.’

“Fourth. That the fund belonged to neither the claimant, but, under the by-laws of the association, to the Heirs of the assured.

“In Carmichael v. Benefit Assn. 51 Mich., 494 (16 N. W. Rep., 871), the beneficiary lived with the assured from her early youth until the latter’s death, in old age, when she was thirty-six. She was not related to him by blood or marriage, and the only question involved was: ‘Were they of the same family, within the meaning of the statute?’ The court held that they were, and says, page 495:

“ ‘The facts are that they resided under the same roof, and as constituents of the same social and domestic circle, from her early youth until his death, in old age, and when she had reached the age of thirty-six years. He was never married, so far as appears, and had no other home, and there was no finding that any relatives remained to him. lie regarded the plaintiff very much as a daughter, and she treated him with much of the care that relation would naturally call out.

“ ‘These are the conspicuous facts reported by the judge on this point. * * * Now this word “family,” contained in the statute, is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children and living alone together, or it may meán children, or wife and children, or blood relatives, or any group constituting a distinct domestic or social body.’

“In Crosby v. Bull, Ont., 496, a benefit certificate was issued to Philip Crosby by this same defendant payable to Mary Crosby, his wife. At the time of their marriage he had a lawful wife living, but Mary did not know of this until some time thereafter, and continued until his death to live and cohabit with him as his wife. The fund was decreed to Mary, upon the ground that her relation to the assured was not illicit, though continued after knowledge of his duplicity; that he was morally bound to support her, and that she was a ‘dependent’ within the meaning of Section 174 of the association by-laws.

“The decision rendered in the case of McCarthy v. Supreme Lodge, 153 Mass., 314 (26 N. E. Rep., 866), defines the word ‘dependent’ and holds that a girl engaged to the assured, and who leaves one position to accept another at lower wages upon his promise to pay the difference, is a dependent and may be his beneficiary.

“In Supreme Lodge v. Hutchinson, 6 Ind. App., 399 (33 N. E. Rep., 816), the assured, representing himself as a widower, was married to Margaretta, who lived with him as such until his death. In fact he had a lawful wife living, whom he had abandoned. It was held that Margaretta. though not his legal wife, was a dependent and entitled to the fund.

“In Story v. Benefit Assn., 95 N. Y., 474, the assured, having a wife then living, married Hannah Wright, with whom he lived until his death. The defendant was the insurer which sought to avoid liability because the plaintiff was not the widow of the assured. The court says, page 476:

“ ‘We think the instrument of June, 1878, operated as an assent by the association to the appointment of the plaintiff as beneficiary of the fund which shoixld become payable on the death of Robert Story, and entitled her, upon his death, in the absence of any other or different appointment, to demand and receive it. It may be true that the by-law, which prescribes the obligation and duty of the association on the death of a member, contemplated a payment to the person who should be the lawful widow of a deceased member. But this was not a limitation of the power of the company so as to prevent it from recognizing as the beneficiary a person who might be designated by the member as holding to him the relation of wife. Such designation made during the lifetime of the member and assented to by the company, until changed by the mutual agreement was repudiated by one of the parties thereto, was binding. The nondisclosure by Story of the prior marriage was not a fraud upon the association. The plaintiff for sixteen years lived with Story, making the plaintiff the beneficiary, Nor did the appropriation of the fund for her benefit contravene the policy or objects of ihe association. The plaintiff for sixteen years lived with Story, believing herself to be his lawful wife. They had children dependent upon them for support. It was a case where it was the duty of Story to provide for them and the provision he made through this insurance was in entire accord with the objects of the defendant’s organization.’

“In Supreme Tent of K. O. M. v. McAllister, 132 Mich., 69 (92 N. W. Rep., 770), decided by the Supreme Court of Michigan, Clara Baker, believing herself divorced from her husband, married William McAllister, with whom she lived as his wife, until his death. During the continuance of this relation, and in 1890, a death certificate was issued by him, payable to his wife Clara. Upon his death the fund was claimed by her and the decedent’s mother, who alleged that there had been no divorce, and that the marriage of her son to Clara was void. The court says, page 771:

“ ‘The validity of a marriage does not depend upon the good faith of the parties entering into it. Both parties must be competent to contract. Unless both are single, their marriage is void, however innocently they may have entered into that relation. It is not necessary to cite authorities to this proposition. But this rigid rule has not been applied in insurance policies of the mutual benefit associations, now so common, where the partit ? have acted in good faith. ’

“The court follows the decision rendered in Story v. Benefit Assn., supra; also Supreme Lodge v. Hutchinson, 6 Ind. App., 399 (33 N. E. Rep., 816), and distinguishes Keener v. Grand Lodge, 38 Mo. App., 543.

“The court further says, page 772:

“ ‘Though she may have failed to show a valid divorce, we think it not contrary to public policy to permit these mutual benefit associations to issue policies in favor of those occupying such a relation, in the honest belief that they are husband and wife. ’

“The decision rendered in the case of Bolton v. Bolton, 73 Me., 299, I do not regard as pertinent, for the reason that the contract was to pay the widow of the assured, who was not designated by name.

“In the case under consideration, it is not alleged that the plaintiff, at the time she entered into the marriage with the said Charles E. Starr, had any kowledge of his previous marriage with the eross-petitioner, and therefore it can not be said that their relations were illicit or .licentious, or that they became so when she discovered the facts..

“By reason of the authorities above cited I am of the opinion that the plaintiff is entitled to the fund and that the demurrer must be sustained.”

To this opinion I will add somewhat, chiefly on points not discussed by Judge Tyler.

It may be observed from the mere reading of these by-laws that it is provided by Section 174 that only persons' bearing certain relationships to the insured may be beneficiaries. .That, obviously, is so that this insurance may not be carried on'as a mere matter of speculation, which would be against public policy — as some lines of insurance have been carried on, for instance such as has been known as “graveyard insurance.” It is so that provision may be made for those in whom the insured has a real interest, and those who are dependent upon him, and who have a real interest in his life.

The following section, 175, provides that “In the event of the death of the beneficiary or beneficiaries named in the certificate of membership before the decease of such member, if no other designation be made, the benefits shall be paid first to the widow” then to the children, and so on down. We think there can be no question but what the person that the insured desired to have received this insurance was the plaintiff, Clara E. Starr, the so-called second wife. She is named as the beneficiary. It is not insurance running to his wife, but it is insurance running to Clara E. Starr described in th.e certificate as “bearing the relationship to him of wife, ’ ’ and that, we take it, was merely his method of description of the person, The person intended by the insured was the woman he was living with as his wife at the time he took out this insurance, and not the cross-petitioner, the abandoned wife. It turned out that this Clara E. Starr was not his lawful wife. She appears to have been innocent of all knowledge of the fact that he had an undivoreed wife living, until a few years before this insurance was taken out, and after she had been living with him for upwards of twelve years. Technically the relationship was bigamous, illicit and immoral in the case of the man, but so far as she was concerned it was not so — it was all right and proper.

It is said that when she discovered that she was not his true and lawful wife, good behavior on her part, proper respect for the laws of the country, religion and morality, required of her that she take measures to sever the relation — she should have quit living with him. We have presented here only the bare bones of the situation — we have not the evidence before us. We do not know what all the circumstances were or might have been. So far as appears, this first wife was entirely content with the severance of the relations of herself and her husband, and so far as. she was concerned, she may have been entirely content with his living with this other woman, and there may have been circumstances of their lives and situation that would have made it a great hardship for her to have at that period undertaken to break up the relation that she had entered into in this way. While under the criminal law she might thereafter have been guilty of living with the man in a state of adultery and it would be fair to describe the relationship as illicit — knowingly so— yet in the construction of these rules of beneficial orders the law of life insurance upon the subject is more tolerant of such conditions than the criminal law, and the judge of the court below cited a number of cases in which persons not the lawful wives but made beneficiaries as such were allowed to avail themselves of the benefits of this form of insurance; though -we find no ease in which it is shown that the person occupying that position was aware that she was not the true and lawful wife.

But, even if not the true and lawful wife, even if the description of Clara E. Starr as a person bearing the relationship to him of wife may not be accurate, may not be true, yet he was authorized, as we find under the laws of the state of Michigan, to insure himself for the benfit of dependents; and it may well be so far as anything appears in these pleadings, that she actually and legally occupied the relationshin to him of a dependent, and would therefore be entitled to this insurance under such description. The person who is to take, being made certain by the certificate, the matter of description is not so material, provided she comes within one of the classes on whose behalf he was authorized under the laws of Michigan to take out insurance.

Now it seems to us that there is another reason why it may be said that there is no error of. which Sarah Styre may rightfully complain, even though Clara E. Starr may not be entitled to this money. It seems to us entirely clear that in any event Sarah Styre could not recover this money; that she has no interest in it; that if it did not go to Clara E. Starr it would not go to her. To test her right we must look at the situation as it would be if she were undertaking to enforce payment of this policy to her by the insurer, and as if Clara E. Starr were not here to controvert her claim at all; or as if the insurer had paid the claim to Clara E. Starr without taking Sarah Styre into consideration, and then Sarah Styre should come in and assert her claim. And we can not see that under the laws and rules of the association as we have them before us here in these pleadings, Sarah Styre is entitled to any of this fund. She is not named or described as a beneficiary; she is not the person intended.

But it is urged that if the money may not be lawfully paid to Clara E. Starr, then there is a failure to designate a beneficiary to whom the money may be lawfully paid, and that in that event it should go to the other persons having this insurable interest, in the order named in the rule, to-wit, to the wife, the children, dependents, father, mother, sisters, etc. We find no provision, in the certificate of the association or in any statute governing the matter, to the effect that if the insured fails to designate a beneficiary, or if the beneficiary named is not qualified to take (that is, the one named and designated by the insurer as occupying a certain relation, does not occupy such a relation) the insurance shall then insure to the benefit of the widow or to the heirs or the estate, or to some other person. The rules provide for such a devolution only in the event of the death of the beneficiary named by the member occurring before the decease of such member, and we know of no rule or authority for saying that the failure to designate a person as beneficiary, or the designation of a person not qualified to take, shall amount to the same thing in law as death of the named beneficiary, in the lifetime of the insured.

The rights of the parties are contractual; they depend upon the contract, and the order has not promised by this certificate that if no person shall be named .as beneficiary, or if the person named shall be disqualified to take, the benefit shall go to certain other persons; and we know of no statute of Michigan providing, and no rule of law to the effect that the policy shall receive that construction or shall be enforced in'that manner. Our view of the matter is, that if it should turn out that there is no person authorized to take, the insurance would lapse and the fund would go back to the insurance company.

Sarah Styre has no claim that she may enforce in opposition to the claim of Clara E. Starr and has no standing to oppose payment to the latter on grounds of morality or public policy. She does not represent the state or the general public in this matter. Neither do we find that there is such an objection on the ground of morality or public policy to the payment of this insurance to Clara E. Starr as should move the court to interfere sua spombe and prevent such payment.

It is suggested in the brief of plaintiff in error that there are certain authorities in Michigan holding that where there is no beneficiary named in the certificate qualified to take, the fund goes to the heirs. It appears that in the ease of Wolf v. Grand Lodge, 102 Mich., 23, 34 (60 N. W. Rep., 445), it is stated that it was so held in the case of Michigan Mut. Ben. Assn. v. Rolfe, 76 Mich., 146 (42 N. W. Rep., 1094); but on looking at the case last mentioned we find that there the policy provided that the fund was to go first to the wife, and second, to the heirs, and so on. That is' the construction put upon it by the court.

The heirs are designated as the persons to whom it shall go in the event that the wife does not survive to take the insurance, and the question raised and controverted there was whether by the heirs named in the certificate, was meant those of the beneficiary (the wife), or the heirs of the insured; and the court held that it meant the heirs of the insured; and one reason given was, that the heirs of the beneficiary would not be qualified to take under the laws of the state; that under the rules of the order they could not have been insured unless they sustained certain relations to the insured, and in that case they did not; and it was said that the beneficiary named had no vested interest in the insurance until after the death of the insured, and as she died béfore the insured died, having no vested interest, nothing would devolve from her upon her heirs. This case of Wolf v. Grand Lodge, supra,, though it arose in Michigan was controlled largely by the laws of Illinois, and it was held in that case that the person claiming that fund was entitled to have it, and it was given to such person because she was designated to receive it; and it seems that under the statutes of Illinois she might take it although not of any of the classes named as beneficiaries in the rules of the association, because the statute of Illinois permitted one of her. class to take, and the rules of the association would not be permitted to defeat the policy of the statute. That was the real question involved in that case.

We hold, therefore, with the court of common pleas, that this plaintiff was entitled to receive this fund, that is, as between her and the cross-petitioner. What her rights might have been had the insurance company undertaken to defend against her claim, we arc not called upon.to say; what her rights might have been if some one representing the state should intervene we are not called upon to say. We simply say that Sarah Styre is not in a position to intervene to prevent the payment of this fund to the plaintiff; we hold with the common pleas court upon the ground that the judge has stated, and upon the further ground that Sarah Styre had no right and no standing to intervene to prevent the payment of the money to the plaintiff. The judgment of the court of common pleas is affirmed. The question of costs has been overlooked and we will have to take that subject up another time.

Kohn & Northup, for plaintiff.

M. D. Merrick, J. C. Jones, and O. W. Nelson, for defendants.