author: Farr, J.

text:
    RIGHTS OF OWNER ABUTTING ON UNFENCED RAILWAY.
    Court of Appeals for Trumbull County.
    Nicholas Church v. The Baltimore & Ohio Railroad Company.
    Decided, September 27, 1918.

      Railroad Company — Must Maintain Fences Along Right of ~Way — Liability for Damages Resulting from Failure to Maintain — Limited to Injury or Loss on Right of Way.

    Where a railroad company neglects or refuses to construct and maintain fences along its right of way, under Section 8913 General Code, its liability to respond in damages is limited to such loss or injuries as occur upon its right of way, and not elsewhere, and an adjoining land owner can not recover the cost of herding his cattle or other animals upon abutting pasture lands where such company has neglected or refused to'fence its right of way along the same, nor can he recover for loss of profits from dairy cows by reason of their not being permitted to remain in such abutting pasture lands during the night season.

      William L. Countryman, for plaintiff in Error.

      Mine, Kennedy, Manchester & Conroy and Filling & Fillius, contra.
   Farr, J.

Church, plaintiff in error, was plaintiff below, and brought suit in the Court of Common Pleas of Trumbull County, to recover against the defendant company on two causes of action. The first, for the alleged failure to construct and maintain in good repair fences on either side of its right-of-way through certain premises, occupied by him for dairy purposes in said county, and on which two tracts of pasture lands abutted, containing sixty and eighty acres respectively; and that by reason of such failure, he was required to have his thirty-one head of dairy cows herded or “watched” on said eighty-acre tract of said pasture lands and away from defendant’s tracks for one and one-half seasons at an expenditure of five hundred and forty dollars, for which he asks judgment.

The second cause of action is for failure to fence said right-of-way, as required by law, and where it is alleged that said sixty-acre tract of pasture lands abuts the same, and which Church claims he used as a close for his dairy cattle during the-night season, and by reason of such failure he was required to stable said cattle at night, which he claims resulted in a lessened quantity of milk given by said cows, to his damage in the sum of one thousand one hundred and seventy-seven dollars, for which judgment is claimed.

A demurrer was filed to the petition, which demurrer was sustained, and the plaintiff, not desiring to plead further, error is prosecuted in this court.

The issue raised here, therefore, is whether the failure of the railway company to maintain along its right-of-way, fences sufficient to turn stock, renders it liable upon the causes of action set out in the petition. A railway company was not required at common law to fence its right-of-way; such obligation is therefore statutory and in Ohio is created by Section 8913, General Code, which provides, among other things, that a person or company having control or management of a railroad, shall construct and maintain in good repair on each side of such road, along the line of its right-of-way, a fence sufficient to turn stock. Said statute is in the nature of a police regulation and was enacted primarily in the interest and for the welfare of the public. As the number of railroads grew in this state, travel over them increased and likewise the dangers imminent to collisions of passenger trains with live stock; therefore, the.Legislature, largely from considerations of public policy, passed the initial act March 25th, A. D. 1859 (56 O. L., 62), entitled “An act, providing for enclosing railroads by fences and cattle guards,” and in the first section of which the legislative intent is disclosed as follows: “To prevent cattle and other animals from endangering themselves and the lives of passengers by getting upon such railroad.” The foregoing fully discloses the primary purpose of said statute, and further comment is therefore unnecessary.

■ It is provided by Section 8916, General Code, that if such company or person neglects or refuses to construct a fence, as required in said Section 8913, General Code, that the owner of such lands may construct the same, render an itemized account therefor and, if payment is not made, it may be enforced by suit after thirty days. Therefore, if a railroad company neglects or refuses to fence its tracks, as required, the abutting land owner has the alternative right to do it himself and require compensation from such company.

In the case at bar Church had a’right to‘use his abutting pasture lands for grazing purposes, regardless of the fact that the company neglected or refused to construct or suitably repair and maintain the fences along its right-of-way. He might very properly have permitted his cattle to be upon said lands without herding them away from the railroad, and if they went upon the tracks and damages resulted, he' could not be charged with contributory negligence; Railway Company v. Smith, 38 Ohio St., 410; Railway Company v. Scudder, 40) Ohio St., 173, and the company would be liable for any loss so sustained. It was not the legislative intent that a "land owner abandon the use of his fields because a railroad company neglected to perform' a duty enjoined by statute. If,‘however, a land owner should prefer not to éxercise such right,-‘he may- protect his Stoek from injury by constructing the necessary fences- himself and recover compensation therefor. He must, however, if the company neglects or refuses to fence, as in the statute provided, elect to use his abutting lands uninclosed as to such right-of-way, placing the responsibility for any injury upon the company or do the fencing himself and recover compensation.

He can not, however, refuse to do either and still require the company to keep his cattle and other animals safe. As above observed, the primary purpose of the statute is to prevent injuries to cattle and other animals upon railroad tracks, thereby “endangering the lives of passengers” on railway trains; it therefore relates solely to injuries upon such tracks.

In the instant ease Church sustained no loss from injuries to his cattle on the tracks of defendant company; he might never have sustained loss by permitting his cattle to graze unherded on his abutting pasture lands, and to hold that he would have sustained loss had his cattle not been herded, is to ‘ ‘ guess ’ ’ that he might or would have been injured.- The duty imposed upon a railroad company of excluding stock from its tracks or right-of-way is only for the purpose of preventing injury or damages thereon and not elsewhere, and to hold otherwise would be to impose a greater burden on a railroad company than was contemplated by the statute or than could be justified in reason, reason.

It is urged that said Section 8913, G. C., is mandatory. If indeed it be so, the penalty -for the disobedience of its mandate is that an offending railway company respond in damages for any loss sustained from injuries resulting by reason thereof. Where ? On abutting lands, in the surrounding fields ? Scarcely so, but on its right-of-way or tracks, and when its failure to fence was the proximate cause of such loss.

The issue under discussion here is practically determined in Railway Company v. Phillips, 81 Ohio St., 456, as follows:

“The liability of a railroad company, under Section 3324, Revised Statutes, to respond in damages for injuries to stock, in consequence of its neglect to construct and maintain a sufficient fence on each side of its road, is limited to loss or injuries occurring upon its own right-of-way.”

The foregoing is somewhat different from the instant ease as to facts, but the principle announced is fully in point. Section 3324, R. S., is now Section 8913, G. C., and holding practically to the same effect as the above case is Millhouse v. Railway Company, 7 C. C., 466, 467, both of which are well in point with the case at bar.

Another objection that might well have been successfully urged to both causes of action is that the claims made are so remote and uncertain in character, as to not warrant a recovery, and, while the objection applies to both, it is especially true as to the second cause of action in which damages are claimed for loss in the quantity of milk given by the dairy cows. The cases of Gaar, Scott & Company v. Snook, 1 C. C., 259, and Rhodes v. Baird, 16 O. S., 573, are fully determinative of this issue. In view of all the foregoing the conclusion is that the judgment of the court below is right,- and it is therefore affirmed.

Pollock and Metcalfe, JJ., concur.


source: Caselaw Access Project

author: Houck, J.

license: Public Domain

text:
    DEATH OF A LEGATEE BEFORE TAKING.
    Court of Appeals for Knox County.
    W. O. Phillips, as Executor of the Last Will and Testament of Thomas F. Cole, Deceased, v. S. P. Chase Cole et al.
    Decided, November 21, 1918.

      Wills — Vesting of Legacy at Death of Testator — Not Affected 6y Death of Legatee Before Distribiition, When.

    Wliere the vesting of a legacy is not postponed by the will, the death oi the legatee before payment does not cast the legacy -back into the estate but it becomes payable to the personal representative of the deceased legatee in the manner provided in the will.

      Ewalt & Blair, for Maud Cole Ball.

      Yorys, Seymour, Safer c& Pease, for Anna B. Cole, Executrix.
   Houck, J.

Appeal.

This is a suit brought for the purpose of having the last will and testament of Thomas F. Cole, deceased, construed. The following are the conceded facts

That on the 27th day of March, 1917, Thomas F. Cole departed this life, leaving a last will and testament, and W. O. Phillips was named as executor of said will, aud duly qualified in the premises; that at the time of the death of Thomas F. Cole, his son, M. Francis Cole, named as one of the legatees in Item Four of said will, was in full life, and afterwards, to-wit, on the 1st day of May, 1917, departed this life, leaving the defendant, Anna B. Cole, his widow, and the defendant, Maud Cole Ball, his daughter by a former marriage, his only heirs at law; that M. Francis Cole died testate, and that Anna B. Cole is the duly appointed, qualified and acting executrix of his last will and testament; that Thomas F. Cole left surviving him Charity Cole, his widow, and S. P. Chase Cole, W. U. Cole, M. Francis Cole, R. L. Cole, MJary Shellenbarger and Alice King, his children and legatees.

The will of Thomas Cole (in part) is:

‘ ‘ Item Third: I will and direct my executor hereinafter named to convert all of my property, both real and personal, into money as soon after my death as practicable, giving him authority to sell either at public or private sale, with or without appraisement, for the best price obtainable.
“I direct my executor hereinafter named, after the payment of expenses and indebtedness above named to invest the sum of ten thousand dollars ($10,000) within a year after my death in some safe security or securities of undoubted value, and the proceeds thereof my said executor to pay semi-annually, or half yearly, the income or interest arising therefrom to my wife, Charity Cole, .this to be in full of her interest in my estate, except one year’s support, both real and personal, the income therefrom will be sufficient to maintain and support her.
‘ ‘ Item Fourth: The rest and residue of my estate after the payment of debts above named and after setting apart and investing the said sum of ten thousand dollars ($10j,000) to be divided equally among my children as follows, share and share alike, M. Francis Cole, S'. P. Chase Cole, W. Utteridge Cole, Robert L. Cole, Mary Shellenbarger, Alice King. Should any one or more of my children above named die leaving a child or children, then said child or children shall take the parents’ share. If they should die leaving no child or children, or their legal representatives, then such share or interest I direct to be divided equally among the survivor or survivors.
“Item Fifth: At the death of my said widow, after the payment of the expenses attending her last siclmess and burial, I direct the sum above named which is to be set apart, to-wit: $10,000 for the benefit of my said widow, to be divided equally among my children aforesaid; should any of them not be living at the time of my said wife’s death leaving child or children, then such child or children shall take the parents’ share; and in the event of any one or more of my said children heretofore named should die without leaving a child or children, or their legal representatives, then the survivor or survivors of them are to receive said $10,000 in equal portions.”

"Question: Under these facts and the law applicable to wills, what are the respective rights of Anna B. Cole, as executrix of the will of M. Francis Cole, deceased; and his daughter, Maud Cole Ball, in and to the legacy of M. Francis Cole, as contained in Item Four of the will of the late Thomas F. Cole?

The facts disclose that M. Francis Cole survived his father only thirty-five days. This fact raises two questions: (1) Did the legacy of M. Francis Cole vest in him upon the death of his father, and upon his death go to his personal representatives? (2) By reason of the death of M. Francis Cole before the payment of said legacy to him, and before the estate of Thomas F. Cole was distributed, did said legacy go to and vest in the daughter of the legatee, Maud Cole Ball ?

• Certain fixed rules have been laid down by courts to be used in the construction of wills, but they are not to be applied where necessity does not require it. If the language is plain, and the intention of the testator can be ascertained from same, then the use of fast and court-made rules has no place in such eases.

Each will stands alone, and the purpose and intention of the testator must be found and ascertained from the language used in the instrument. It is the exception and not the rule where we find two wills presenting exactly the same question, and it follows that unless an adjudicated ease cited by counsel is directly in point, it has little weight with an interpreting court. In our examination of authorities cited by counsel, as well as an exhaustivé research on our part, we have been unable to find a case directly in point, or decisive of the question made here.

We hold that the vital point in this case is as to the legal effect .of the following language used in Item Four of the will of Thomas F. Cole, to-wit: ‘ ‘ Should any one or more of my children above named die leaving a child or children, then said child or children.shall take the parent’s share.”

The testator was bound to know the law, and that his will would speak from the date of his death, and that a legacy, where not specifically postponed by language clearly indicating such intention and purpose, vests Immediately, on the death of the testator, in the legatee. The language in question does not designate any stated time for the payment of the legacies, but as to this it is silent.

The testator was satisfied with the language employed, which in no wise postponed the time of vesting of the legacies beyond his death, and by his silence and failure so to do, the law intervenes and fixes the time to be the death of the testator. If he had intended the legacy now under consideration not to vest in his son, M. Francis Cole, upon his decease before that of his son, or desired its payment postponed to a certain time, or until the happening of some future event, he could have done so by making proper provisions for it by the use of such language as would definitely indicate such intention on his part.

A careful study of Item Four of said will discloses that the only event to which the contingency of death can refer is the death of Thomas F. Cole, which is the period or time fixed when the legatees would come into the enjoyment of their legacies, and at that time their rights and interests in and 'to their respective legacies became vested absolutely, and therefore were no longer under the dominion of said will.

Each legatee had a perfect right to dispose of his respective interest, and could pass a perfect title to the purchaser, or could convey same by will, as appears to have been done in the case at bar.

We find no condition attached to the gift, and no postponement as to the time of its taking effect, and therefore we hold that upon the death of Thomas F. Cole the bequest made in his will to M?. Francis Cole became a fixed and absolute estate in him, and that it should be paid to Anna B. Cole, as executrix of the last will and testament of the said M. Francis Cole, deceased.

Judgment accordingly.

Powell and Shields, JJ., concur.


author: Richards, J: By the Court.

text:
    LIABILITY ON A CHECK DRAWN AGAINST AN INADEQUATE DEPOSIT.
    Court of Appeals for Clark County.
    (Judge Rickards of the iSixth District sitting by designation in place of Judge Kunkle of the Second District.)
    William Paige v. The Springfield National Bank.
    Decided, February 19, 1919.

      Banks and Banking — Check Accepted by Bank Against an Insufficient Deposit — In Dispute whether Acceptance was Conditional on being Made Cpod — Other Small Checks Paid out of the Deposit — Duty of Bank if Acting as Collecting Agent — How Deposits shall be Used may be Designated by Depositor.

    1. As a mere drawee, a bank on which a check is drawn by one of its depositors may decline payment because of insufficient funds of the depositor and pay out the depositor’s balance from time to time on smaller checks, although drawn subsequent to the one on which payment was refused, and it is not the bank’s duty under such circumstances to refuse payment of the smaller checks so as to build up a balance large enough to meet the first check; but if the bank, when such check was presented, undertook the duties of a collecting agent, its rights and duties depend upon the terms of the agency.
    2. Whether the bank in such case assumed the duties of a collection agent is a mixed question of law and fact, to be determined by the jury under appropriate instructions of the court as to the law.
    3. The mere refusal of the bank to pay the larger check furnishes no ground for the subsequent refusal of later and smaller checks and the bank may safely pay such later cheeks if it has not assumed the duties of a collection agent for the holder of the first check, even though, if it had refused payment of the later checks, a balance would have been built up by deposits sufficient to pay the first check.
    4. A depositor having an open checking account in a bank may, by agreement with the cashier at or before specific deposits are made; provide that such deposits shall be used to .pay certain checks only, and such deposits become thereby appropriated to meet the designated checks and may not be applied by the banker to other purposes.
    5. If, when the Paige check was presented to the bank for payment, the payee was informed by the cashier that it was not good, but that the bank would take it and give him credit for it subject to collection, and credit was given-for the check on the holder’s pass book, and there were facts and circumstances in evidence tending to show that the bank may have assumed the duties of a collecting agent, it is error to instruct the jury that the sole duty of the bank was to charge the check to the drawer and thus relieve Paige whenever the drawer had sufficient funds to his general credit to pay the entire check at once.

      Hagan <& Hagan and William M. Boekel, for plaintiff in error.

      George S. Dial and J. E. Bowman, contra.
   Richards, J:

Error to the court of common pleas.

On August 31, 1916, one G-. A. Collier drew a check on the Springfield National Bank in favor of William Paige for $1,037.34. Mr. Collier at that time had a deposit account with the bank, but not of sufficient amount 'to pay this check and he requested Paige to hold the check a few days. William Paige, the payee of the cheek, also carried an account in the same bank. The check was presented by Paige to the bank on September 2d, and the testimony is in conflict as to what occurred between him and the cashier at that time. The cashier testified that he informed Mr. Paige that money was not then on deposit in the account of Collier sufficient to meet the check, but that the cashier would hold the check, credit Paige with the amount and enter it in his pass book, subject to a deposit which the cashier presumed Collier would make. He testifies that fie informed Paige that the check was not then good but probablv would be a little later, and that Paige said “all right.” The cashier testified further to the effect that some days after that, Mr. Paige again came to the bank and stated that he was going to want to use some of that Collier money and he was then informed that the check had not yet been paid but that he could go ahead and divide it up,if he.wanted to and the cashier would take the chance of being made good that afternoon, as he expected a deposit from Collier. Paige did, thereafter, cheek out a portion of the amount represented by the check. The testimony of Mr. Paige is to the effect that he.presented the check at the bank for payment and that it was credited on his pass Book and that he had no conversation with regard to there being 'insufficient funds to pay the same or with reference to having the check left for collection. The amount of the check was, in fact, credited on the pass book of Paige, but the cashier insists that this was done conditionally, while Paige contends that such credit was absolute payment of the check.

Collier, the drawer of the cheek, became bankrupt shortly thereafter and this action was brought for the purpose of recovering of Paige the amount of the check less the amount of the deposit of Collier applied by the bank toward the payment of the same and less, also, the dividend from the trustee in bankruptcy of the estate of Collier. The testimony tends to show that Collier made numerous deposits in his account in the bank shortly after this check was presented to the bank, but that at no time, at the close of business in the afternoon, was there a sufficient amount in his account to pay the check in full. The amounts deposited by Collier were, in fact, used to pay smaller checks drawn subsequently to the date of the check given to Paige.

The trial resulted in a verdict and judgment in favor of the-Springfield National Bank and this proceeding in error is brought to reverse that judgment.

The questions at issue between these parties involve very interesting principles of law as to the rights and obligations of a bank and its customers on the presentation of a check which is in fact for a larger amount than the drawer of the cheek had on deposit at the time the check was presented. The trial court, at the request of the bank, gave the following five propositions in charge to the jury:

“1. If when Mr. Paige presented the Collier cheek at the Springfield National Bank, he was informed by the bank that the check was not good, but that the bank would take it and give him credit for it, subject to collection, and the credit was made in his pass book accordingly, that did not constitute payment of the check by the bank and Mr. Paige remained liable to the bank for the amount of the check unless afterwards Mr. Collier had to his general credit an amount sufficient to pay the entire check at one time.
“2. Such an arrangement did not impose on the bank the ordinary duties of a collection agent for Mr. Paige, but it was only required to hold the check at its banking house and charge it up to Mr. Collier whenever he had a balance to his credit large enough to pay the entire cheek at once.
“3. Such an arrangement left it still the duty of the bank to pay smaller checks of Mr. Collier that might be presented after-wards and which did not exceed the amount to his credit at the time. It was not the bank’s duty to refuse payment of such smaller checks so as to build up a balance in Mr. Collier’s favor large enough to pay the check left by Mr. Paige.
“4. Such an arrangement did not prevent the bank permitting Mr. Collier to overdraw his account in anticipation of deposits to be made later to cover such overdrafts, or from making any other special arrangements with Mr. Collier at his request and to suit his convenience. It did not require the bank to shape its business with Mr. Collier so as to compel the payment of the cheek left by Mr. Paige, but its sole duty would be to charge that cheek to Collier and thus relieve Paige whenever and if ever Mr. Collier had sufficient to his general credit to pay the entire cheek at once.
“5. If the Collier cheek was left with the bank and the credit given Mr. Paige subject to the collection of the check,"then the subsequent writing up of Mr. Paige’s bank book would not affect the arrangement or the rights and obligations of the parties. ’ ’

The general charge of the court was along the same lines as covered by the above special instructions, and the vital and controlling matter for determination in this case is as to whether the charge is a fair statement of the law under the evidence contained in the record. This charge appears to be a fuller and more elaborate statement of the rule laid down in 8 Corpus Juris, 680, in the following words:

“Where a bank declines to pay a cheek because of lack of funds, it is under no obligation to the holder to reserve from future deposits a sufficient amount to meet the check if it is again presented.”

The rule as thus stated is the one applicable in the absence of any agreement between the bank and the payee of the check. The same rule is announced in Gilliam v. Merchants National Bank, 70 Illinois Appellate Reports, 592, the reason being that there is no presumption that the check remains outstanding for payment. But, in the case at bar, the check was in fact left by Paige with the bank and for this reason the bank is chargeable with knowledge that the check was not paid, if such was the fact. See also: Henderson & Co. v. United States National Bank, 59 Nebraska, 280; Lowenstein, &. Bros. v. Bresler, 109 Ala., 326; Harrington v. First National Bank, 85 Ill. App. Reports, 212; Coates v. Preston et al, 105 Ill., 470.

A summary of the rule is stated in 2 Morse on Banks and Banking, Section 450, in the following language:

“The fact of presentment for payment of an overdraft, appears to have no legitimate effect whatsoever upon the balance of the customer. It creates no lien upon it of any description; no sound reason suggests itself why it should be regarded as affecting it at all. The bank is in no possible shape the agent of the holder of such overeheck, to aid in securing him payment in full; whence it seems to follow that the simple refusal, without mor.e, of the larger cheek furnishes no ground for the subsequent refusal of the later and smaller one.”

The rule as stated is undoubtedly applicable in a case where a check which amounts to an overdraft is presented for payment, payment refused, and nothing more said and the holder of the cheek carries the same away with him. But we do not understand that this rule as laid down is applicable, without qualification, to a case where the bank retains possession of the cheek and evidence is introduced tending to show an arrangement between the bank and the holder of the check, which might, if the jury so find, modify what the rights of the parties would be in the absence of an agreement. See 2 Morse on Banks and Banking, Section 572.

We think there can be no question that if a bank credits a depositor with the amount of a check drawn upon it by another customer, and there is no want of good faith on the part of the depositor, the act of the bank in giving the credit is equivalent to a payment in money, if nothing is said to indicate a different result, even though the bank should later ascertain that the drawer of the check was without funds to meet the same, but it is also true that the bank could have received the check eondi-' tionally. 3 Ruling Case Law, 526.

It is for the jury to say, under the instructions of the court as to the law, whether the evidence introduced in this case as to what occurred when the check was presented and subsequently, when it is claimed permission was given to withdraw a part of the amount represented by the check, established any agreement which would govern the rights of the parties. With such evidence in the record, the trial judge went too far in stating the rule as he did, without qualification, that no duty rested on the bank to apply any part of the deposits of Collier to the payment of the check given to Paige. The rights of Paige under the circumstances disclosed by the evidence would not rest solely upon the principles of law announced, without considering whether the evidence established an agreement which would impose upon the bank the duty to apply to the payment of the Paige check such unappropriated funds of Collier as were in his account or might thereafter be deposited.

The bill of exceptions contains some evidence which is not, however, very clear, tending to show that Collier, who was purchasing grain and hay, paid for the same with checks on the Springfield National Bank, and that some of these checks would be presented at the bank when there were no funds in the bank to meet the same, and that under those circumstances the cashier of the bank would call Mr. Collier on the phone and Collier would ask that such checks be paid and promise that he would make deposits during the day to cover the same. If such an agreement, made before or at the time that such deposits were made, should be established by the evidence, then the funds so deposited for such purpose, would be appropriated to meet the payment of the specified checks and money so appropriated could not properly be used by the bank in the payment of the check given to Paige. The importance of distinguishing whether funds deposited have or have not been appropriated to specific purposes is clearly indicated in the old ease of Kilsby v. Williams et al, 5 Barnwell & Alderson’s Reports, 815. The original report of that ease, published in 1822, contains the following headnote .or syllabus:

“A plaintiff paid into his own bankers, a cheque of 250 pounds drawn upon them by a third person, which they received without any objection; and in the course of the same day the drawer of the cheque paid in a sum of money, part of which he appropriated, leaving a balance unappropriated of 237 pounds. The bankers, who were then creditors of the drawer to a large amount, wrote on the next morning to the plaintiff stating that the cheque was not paid but that they would keep it in the hope of there being money to pay it; and on that day a, further unappropriated balance was paid in, making altogether a sum exceeding the plaintiff’s cheque. Held, that, under these circumstances the plaintiff might maintain money had and received against the bankers, and that the latter, being his agents for recipt of the money, could not appropriate the balance to the payment either of their own general account against the drawer, or of two cheques presented on the same day, but subsequently to that of the plaintiff and paid by them.”

See, also, Johnson v. Parker Savings Bank, 101 Penn. State, 597; Wilson et al v. Dawson et al, 52 Ind., 513; Bank of the United States v. Macalester, 9 Penn., 475.

The charge to the jury in this case ignores the fact that there is a conflict in the evidence as to what occurred between Paige and the cashier of the bank, and fails to give due consideration to the claim that the bank assumed the duties of a collection, agent. If the jury should find that the conversation between them amounted to an agreement, in relation to what should be done by the bank with the cheek and with the deposits of Collier made or to be made, such agreement might have an important bearing on the rights of the parties and the court was in error in withdrawing from the consideration of the jury the effect of the testimony on this subject.

. We find no prejudicial error in the ease, except in the charge of the court in relation thereto, but for error in the charge the judgment must be reversed and the cause remanded for a new trial.

Allread and Ferneding, JJ., concur.

Decision on Re-hearing.

(Rendered. April 22, 1919.)

By the Court.

Richards, Allread and Ferneding, JJ., concurring.

Counsel for defendant in error contend that the bank accepted the cheek in controversy merely as accommodation and that it assumed no additional responsibility.

The bank’s evidence upon which the case rests was to the effect that it received said check and entered the same upon the holder’s pass book subject to a future deposit or subject to collection.

We can not escape the conclusion from the bank’s evidence that it acted in the dual capacity of drawee and collecting agent.

As a mere drawee the bank might have refused the check and paid out the depositor’s balance from time to time on smaller checks.

As collecting agent, however, the bank assumed a fiduciary relationship to the check holder. Jones v. Kilbreth, 49 O. S., 401; Hilsinger v. Trickett, 86 O. S., 286; Kilsby v. Williams (cited in the original opinion).

The scope of the agency is thus stated by Judge Spear in Hilsinger v. Trickett, at page 298:

“The delivery of the certificate in the manner shown by the admitted facts was a delivery for collection — of course to result in liability on the part of the bank in case of collection, and im- • posing the duty of reasonable diligence in efforts to collect. ’ ’

It is true that the bank in the discharge of its fiduciary obligation would be governed by the general custom of the banking business as to collections, but that limitation would not justify the bank in assuming an attitude inconsistent with the trust or of thwarting the execution of the trust by paying the funds otherwise applicable 'to the plaintiff’s cheek to the drawer or upon checks subsequently presented.

By the Ohio rule it is true that the payee of a check obtains no right or interest in the deposit unless accepted. Nevertheless the drawee may by acceptance, absolute or conditional, fix an obligation in favor of the check holder to be discharged out of present or future unappropriated deposits.

The issuing of a check confers implied authority upon the drawee to accept and discharge the same out of the drawer’s funds.

Whatever valid obligation is assumed by the drawee in the acceptance of a check is binding upon the drawer.

The drawer obtains no superior right by the over-issue of checks nor does the issue of subsequent checks operate as a cancellation of a former one. The rule that a bank may refuse a check in excess of the deposit and honor subsequent checks within the balance applies only where the bank acts exclusively as drawee and assumes no obligation to the holder of the larger check. Counsel for defendant in error present a persuasive argument in favor of the contention that the bank was not under obligation to make a pro tanto payment upon the Paige check, without special authority. The cases of Lowenstein v. Bresler, 109 Ala., 326, and Bank v. Bank, 127 Tenn., 288, are cited. The case at bar differs somewhat from these cases because the collecting agency in the instant case was of a continuing character. The bank agreed to hold the Paige check for a future deposit. In both the Alabama and' Tennessee cases the checks were returned before the deposit because sufficient to pay the checks. In neither of these cases did the bank undertake to hold the check for a future deposit. Here the bank pursuant to the agreement held the Paige check while deposits were made in excess of the amount of the check. There was evidence from which the jury might have found that Collier’s unappropriated deposits amounted to more than the Paige check and the jury should, therefore, have been instructed as to this feature of the case.

Counsel for defendant in error contend that there -was no such acceptance of the Paige check as to create an obligation against the bank, citing Savings Co. v. Walker Co., 92 O. S., 406. The check there had been accepted and paid by the drawee bank upon a forged endorsement and the question was whether such acceptance operated in favor of the real owner of the check. The court held that it did not. The decision was based upon the theory that the payment tinder the forged endorsement was void; that the check remained a living instrument under the law merchant, and that a written acceptance was required to bind the drawee. It is evident, we think, that the court did not intend to cover the question of acceptance for payment or of a constructive acceptance under other sections of the negotiable instrument act.

Here the check was presented for payment and entered upon the depositor’s pass book. This would create a prima facie obligation in favor of the payee as depositor and against the bank and the burden would be upon the bank to defeat that obligation by showing the non-fulfillment of the condition upon which the check was accepted for payment. But independent of that, if the bank assumed the fiduciary relation of collecting agent it stepped outside the strict rules of the law merchant and became bound by the general rules of the law of agency subject only to banking customs in making collections.

This is an important case and we have endeavored to give it the consideration which its importance demands, but upon full consideration are unable to escape the conclusion that the former decision should be adhered to.

Judgment adhered to on re-hearing.


text:
    TRANSFER OF SCHOOL DISTRICTS.
    Court of Appeals for Wayne County.
    Asa Ewing v. Charles Schopf, Auditor of Wayne County, Ohio, et al.
    Decided, February 5, 1919.

      Schools — Payment of Bonds of a Transferred District — Can be Sad died upon the Consolidated District — And Pre-existing Indebtedness Must be Met by the Neiv District.

    In transferring an existing school district to an adjacent rural school district an agreement that the territory so transferred shall be relieved from payment of its outstanding indebtedness is without authority of law, and demurrer lies to a petition for a perpetual injunction against the levy of any tax upon property outside of the transferred district for payment of bonds issued by said district prior to the transfer.

      Weygandt & Boss, for plaintiff.

      Joseph McGhee, Attorney-General, WüMqm J. Ford and Benton G. Hay, Prosecuting Attorney, contra.
   Houck, J.

This is an appeal ease and is here on demurrer to the petition of plaintiff.

From the petition it appears that on the 3d day of May, 1917, the county board of education of Wayne county, acting under the provisions of Section 4692, G. C., as amended 106 O. L., 396, by resolution duly adopted, transferred the whole of Doylestown village school district, in said Wayne county, Ohio, to Chippewa rural school district in the same county; that at the time said transfer was made the village district had an outstanding bonded indebtedness of $12,000, and that it was agreed that if said transfer be made it was to be free of indebtedness to the transferee, and that the village district was to remain intact for the disbursement of its then indebtedness; that the county auditor had already made a general levy upon all the taxable property of plaintiff and* other taxpayers of said Chippewa rural school district for the payment of said bonded indebtedness, etc.

Plaintiff prays that the defendant, the county auditor, be perpetually enjoined from the levy of any tax upon plaintiff to create a sinking fund for the retirement of said bonds, and prays the defendant, the county treasurer, be enjoined from collecting such tax, etc.

The question here presented — Is the demurrer well taken ?

The general rule of pleading is that the want of essential allegations necessary to be set forth in a cause of action or defense renders same subject to demurrer. Does the petition in the present case stand this test ?

We have examined all the sections of our school laws referred to by counsel in the case, and we are clearly of the opinion that the county board of education had full and complete authority in the premises to do just what it did with reference to the transferring of the school territory in question. However, we find no authority in law for the alleged agreement betwen the county board of education and the village board of education that the transfer of said territory should be free of said bonded indebtedness, and that being so, it neither adds to nor takes from said petition anything so far as it affects the rights of the parties hereto with reference to the demurrer.

In their attempt to make this so-called agreement said boards of education exceeded their authority and as such members of said boards of education are not bound, thereby.

We think the rule in Ohio is well fixed that when territory for school purposes is transferred pursuant to statutory authority, as is clearly admitted in the petition now before us, that those residing in such annexed territory may be taxed to pay preexisting indebtedness embraced in the new territorial district.

If this rule of law is sound then the allegations of the petition of plaintiff are not sufficient in fact and law to grant the relief sought. It follows that the demurrer is well taken and should be sustained. Demurrer sustained.

Powell and Shields, JJ., concur.


author: Sayre, J.

text:
    APPROPRIATION BY A FOREIGN RAILWAY COMPANY.
    Court of Appeals for Pike County.
    The Chesapeake & Ohio Northern Railway Company v. Keziah D. and John W. Barger.

    Decided, January 9, 1919.

      Appropriation — Proof Required of a Foreign Corporation — Right of Eminent Domain — Organization of New Company Tyy Officers and Employees of Existing Company — Necessity of Appropriation.

    1. In the trial of an action by a foreign railroad company to appropriate private property for railroad purposes in this state it must prove its de jure existence according to the law of the state where organize'd.
    2. Section 8759 expressly confers upon a foreign corporation which owns and operates a railroad the right of eminent domain in this state, and hence in such action it is not necessary to prove that the laws of the state in which such corporation was organized confer upon it such right.
    3. The legislative acts of a sister state may be proved in the courts of this state as provided by either Section 905, revised statutes of the United States, or Section 1149® of the General Code of Ohio.
    4. Officers or employees of one railroad company may legally organize another for the benefit of the former, if they, acting for themselves as individuals, subscribe and pay for their stock, elect directors and comply with the forms' of law in perfecting the organization. •
    5. In the trial of an action by a railroad company to appropriate property for its right of way, it is not necessary to show that its directors have by resolution declared it necessary to appropriate the land described in the petition.

      Bannon & Bannon and Levi B. Moore, for plaintiff in error.

      G. E. Blanchard, Robert J. O’Dell and Gt. W. Rittenour, contra,

       For previous opinions in same case see, 28 O. C. A., 92, and 21 N. P. (N.S.), 97.

   Sayre, J.

This court is called upon to determine the following questions :

(a) When, in a proceeding by a railroad company to appropriate land for a right-of-way, the court of common pleas affirms the probate court and both judgments are reversed by this court, shall the cause be remanded to the probate court or to the court of common pleas for a new trial ?

(b) Is it necessary for the plaintiff to prove its incorporation according to the laws of Kentucky, and that the power of eminent domain has been conferred upon it by such laws ?

(c) Must such proof be offéred as is required by Section 11498?

(d) Is the plaintiff a dummy corporation?

(e) Is it necessary for the plaintiff to prove that its board of directors, prior to the filing of the petition, passed a resolution declaring that it was necessary to appropriate the premises described in the petition?

(f) "Was evidence offered to show that the plaintiff was unable to agree with Keziah D. Barger?

1. The judgment of the probate court in the original action was affirmed by the court of common pleas and upon a reversal of both judgments by this court the cause was remanded to the court of common pleas for a new trial. The case has been retried in the court of common pleas and is here upon a proceeding in error, and defendants in error are, by cross-petition in error, challenging the former ruling of this court in remanding the cause to the court of common pleas for a new trial.

While this court is of the opinion that the Legislature, intended that a new trial should be held in the court of common pleas, whether that court affirms or reverses the probate court, yet from the report of the case of Pittsburg, Cleveland & Toledo Railroad Co. v. Todd, 72 O. S., 156, and the case of Cemetery Ass’n v. Cleveland, Bedford & Geauga Lake Traction Co., 93 O. S., 161-182, we have concluded that the Shipreme Court holds otherwise; and believing that if the question was presented again to that court it would stand by its former action, we have decided to remand the case to the probate court for a new trial.

2. It is necessary for the plaintiff to prove its incorporation according to law. (Cemmetery Ass’n v. Traction Co., 93 O. S., 161). And whether it is incorporated according to law is to be determined by the law of the state where it 'is organized. (American Ball Bearing Co. v. Adams, 222 Fed., 967). However, it is contended that by a recent amendment of Section 8759 (105-106 O. L., 347), the power of eminent domain is expressly conferred on foreign corporations owning and operating a railroad. That section as amended reads in part as follows:

“A company, domestic or foreign, or municipal corporation which owns or operates a railroad, may enter upon any land for the purpose of examining and surveying its railroad line, and appropriate so much thereof as it deems necessary for its railroad * * * .”

This seems to us to be a clear grant of the right of eminent domain to a foreign corporation which owns and operates a railroad. This right being granted by our statutes to a company organized under the laws of Kentucky, it was not necessary to prove the right of eminent domain conferred upon plaintiff by Kentucky laws, because there was proof offered that the plaintiff owned the railroad constructed by it from Edgington to AYaverly.

3. Oral evidence was admitted to show that Carroll’s Kentucky Statutes, 1915, 1916 Kentucky Acts of Legislature and 1917 Kentucky Acts of Legislature, contain all the general statutory law of the state of Kentucky, and these volumes were produced in court. The sections of the statutes which authorize the association of persons to form corporations for the purpose of constructing and operating railroads are found in Carroll’s Statutes. There was no evidence that these were published by the authority of the state of Kentucky as required by Section 11498, General Code of Ohio, nor do they purport to be published by the authority of the state of Kentucky. However, the sections of the statutes referred to, typewritten and certified to by the Secretary of State of the Commonwealth of Kentucky. to which was affixed the seals of that commonwealth, were admitted in evidence.

Section 905, Revised Statutes of the United States, provides that,

‘ ‘ The acts of the Legislature of any state * #. ® shall be authenticated by having the seals of such state * * * affixed thereto * *

The federal statute does not provide an exclusive method for proving .legislative acts of a sister state, but if proof is made in accordance with its provisions such proof is sufficient. (Title Guarantee & Trust Co. v. Trenton Potteries Co. (N. J.), 38 Atl., 422, Ridpath v. Heller (Mon.), 129 Pac., 1054, Hewitt v. Indian Territory Bank (Nebr.), 92 N. W., 741).

AYe understand the law to be that if proof is made in accordance with either the federal or Ohio statute no more is required.

4. Is plaintiff a dummy corporation?

The record discloses the following facts:

1. In order to carry freigtht, principally coal, from the Chesapeake and Ohio Railway Company, in Kentucky, to the Hocking Valley Railway Company, now controlled by the Chesapeake and Ohio, it was important to the former to have a railroad constructed from Edgington, Kentucky, to Valley Crossing, near Columbus, Ohio, and the plaintiff, the Chesapeake & Ohio Northern Railway Company, was organized for that purpose.

Mr. M. J. Capíes, elected president of the plaintiff at the first meeting of directors, testified as follows:

‘ ‘ Q. How does it happen that these men that are directors of the C. & O. Railway all became directors of the C. & O. Northern?
A. Because the Chesapeake & Ohio Northern is a subsidiary of the Chesapeake & Ohio; was intended, was built principally for the purpose of handling the business of the Chesapeake & Ohio.
Q. So that the C. & O. desired to have complete control of the mangement of the C. & O. Northern?
A. Ves * * *.
Q. Why didn’t the C. & O. build it under its own name?
A. Because the C. & O. had no right to do business in Ohio at that time, and it is much easier to organize a new corporation to build sucb property than to extend the operation of another one. It was a matter of convenience. We discussed this matter quite fully with the Public Utilities Commission of Ohio as to how we might organize for the purpose in it. This road was Duilt with the idea of improving the transportation facilities of the C. & O. Nothing to conceal about it. We want everything known that we know ourselves. * # *
Q. And the Chesapeake & Ohio Railway financed the Chesapeake & Ohio Northern all the way through, has it not?
A. Yes, except a few shares purchased by the individual shareholders.
Q. Those shares purchased by the individual share holders were for the mere purpose of qualifying them as officers, were they not?
A. Yes.”

2. The incorporators, original stockholders and directors were officers or employees of the Chesapeake & Ohio.

3. The Chesapeake & Ohio Northern was organized with a capital stock of fifty thousand dollars, divided into shares of the par value of one hundred dollars each.

4. Six of the original stockholders subscribed and paid for three shares each, and one subscribed and paid for two hundred and thirty-two shares of the capital stock.

5. The alleged incorporation was completed in May, 1914. The first meeting of directors was on May 29, 1914.

6. July 23, 1914, the capital stock was increased fifty thousand dollars. October 2, 1915, the capital stock was increased to three million five hundred thousand dollars.

7. This suit was commenced January 24, 1916. At the trial of this case in July, 1918, the Chesapeake & Ohio Railway Company owned all the stock of the plaintiff company except twenty-one shares owned by five individuals, of whom two were of the seven original stockholders.

In Cemetery Ass’n v. Traction Co., 93 O. S., 161, it appears that the party seeking to appropriate the. land never kept any books of account or bank books, or certificate books; that while one director paid in the ten per cent, of the authorized capital stock there was no record of it, and that the other directors never paid for their stock at all. It did further appear in that case that the Cleveland, Bedford & Geauga Lake Traction Company was the creature of the Northern Ohio Traction & Light Company. In American Ball Bearing Co. v. Adams, 222 Fed., 967, no money whatever was paid by any of the incorporators but the ten per cent, of the authorized capital stock was paid by one of the three companies for whose benefit the dummy corporation in that case was attempted to be organized.

Consideration of these two cases leads fairly to the conclusion that whether an organization may be adjudged a dummy corporation' or not depends upon whether the original incorporators and stockholders, excepting the case of a proper gift of stock, subscribed and paid' for their stock and were interested to the extent of the amount of such stock in the fortunes of the organization. If they are so interested it is of no consequence how much more they may be interested in some other organization. There is no Ohio law at least which prevents officers and employees of one corporation from organizing another, although for the benefit of the former, if they subscribe and pay for the stock of the latter, and thus become interested in good faith in it. Besides, by virtue of Section 8806:

“A company may aid another in the construction of its road, by means of subscription to its capital stock, or otherwise, for the purpose of forming a connection of the roads of the companies, if the road of the company so aided will not when constructed form a competing line.”

The evidence shows that the two roads referred to in this case will’ not be competing lines.

By the provisions of this section one company may purchase substantially all the capital ftock of another and absolutely dominate it, and as this may be purchased at any time the condition of things which appeared on the trial of this case, to-wit: an effort to appropriate land by one corporation, whose stock was almost entirely owned by another, did not deprive the appropriating corporation of its right of eminent domain, since its incorporation was effected in good faith and in accordance with the forms of law. The plaintiff has never been a dummy corporation, as it seem to us.

5. Objection was made to the proof of the minutes of the plaintiff showing- the meetings of incorporators, directors and stockholders. It is contended that they are not sufficiently identified.

Mr. Capíes, who signed the minutes as chairman, identified the book as the minute boob of the plaintiff company and testified that he was present at all the meetings. The assistant secretary of the company testified that the book offered in evidence was the minute book of the company and that he was the custodian of the same although he did not prepare any of the minutes. The fact that the minutes are authenticated by an officer whose duty it was to sign them and the book was identified as the record of the corporation by its custodian is sufficient proof of the book and its contents.

6. The former opinion of this court holding that the plaintiff must show that its directors have declared by resolution that it was necessary to apropriate the land described in the petition is erroneous. The statute has not conferred the power to determine the necessity for the appropriation upon the corporation seeking to appropriate the land for railroad purposes, but upon a court. The issue before the probate court is whether there is a necessity for the appropriation, and if the resolution of the plaintiff’s board of directors is introduced in evidence it must be to prove that issue. Such resolution, if introduced in evidence, would express the opinion of a certain number of individuals that it was necessary to appropriate the premises described in the petition. This opinion of the directors would be fatally defective as evidence upon the issue as to whether or not it was necessary to the plaintiff to make the desired appropriation. The question for the probate court is not whether in the opinion of the plaintiff ”s directors the appropriation is necessary, but whether it is necessary. This is a question to be determined by evidence, as in other cases, with the burden of proof on the plaintiff. Suppose the defendant was a railroad company and offered a resolution of its board of directors stating that there was no necessity for the appropriation, certainly no one would contend that such resolution would be admissible. And yet no one can point out any difference as to the probative value on the issue of necessity between such resolution and one passed by the board of directors of the plaintiff.

The question of necessity is a judicial one for the probate court, and only such proof as is admissible under the rules of evidence can be received on such issue, and a resolution by the board of directors of the plaintiff company declaring the appropriation of the property in question a necessity is no evidence whatever of such necessity. (State v. Proprietors (N. J.), 33 Atl., 252).

7. There is no evidence in the record to show that the plaintiff was unable to agree with defendant, Keziah D. Barger, although it appears that she is the wife of John W. Barger, with whom the evidence shows inability to agree. The mere fact that they are husband and wife is not sufficient to show that the husband had authority to act for his wife in the matter. The statute requires plaintiff to show inability to agree with the owner, and if there is more than one owner then proof must be offered of inability to agree with the owners.

The judgment will be reversed and the cause remanded to the probate court for a new trial.

Judgment reversed.

Houck, J., and Walters, J., concur. (Houck, J., of the fifth district, sitting by designation in the place of Middleton, J,, of the fourth district).


author: Dunlap, J.

text:
    LIEN OF MATERIALMAN.
    Court of Appeals for Cuyahoga County.
    Oscar T. Mayer et al, Plaintiffs, v. John Nemeth et al, Defendants.
    Decided, June, 1919.

      Mechanic’s Liens — Purpose of the Provision of Section 8818 for Notice —Owner must Require Affidavits — Sections 8812, 8318, 8314.

    One who has furnished material to a general contractor, for use in the construction of a building for the owner, and has filed a lien within the statutory time and served notice thereof upon the owner as provided in Section 8814, will not be deprived of bis lien because of failure to furnish the notice required by Section 8313.

      Buckley, Ilauxhurst, Saeger $ Jamison, for plaintiff.

      B. C. and Geo. II. Schwan, for defendants.
   Dunlap, J.

Appeal from the Court of Common Pleas.

These eases are here on appeal from the court of common pleas. Inasmuch as the cases are submitted upon an agreed statement of fact, there is involved only the law applicable to those facts, and the whole matter at issue may be very simply stated in the form of a question, viz.: Will a materialman who has furnished materials to a general contractor for use in constructing a house for the owner, and who has filed a lien within the statutory time and duly served the notice of same upon the owner as provided in Section 8314, General Code, be deprived of the fruits of his efforts and his lien be held invalid because he has not furnished the notice provided for in Section 8313, General Code? We shall not enter into any long discussion of the mechanic’s lien law of Ohio in attempting to answer this question.

To us it seems that the question should be answered in the negative; that the notice provided for under Section 8313, General Code, is not intended as a prerequisite to the attaching of a lien; that it is intended only as an extra safeguard to the mateT rialman, sub-contractors and laborers to protect them from the consequences of being left off the contractor’s affidavit.

■ The provision of Section 8312, General Code, to the effect that any payments made by the owner to a general contractor before he had received affidavits from the general contractor, shall be made at his peril, admits of no interpretation which will excuse the owner from requiring such affidavits. Our holding here is in accord, we believe, with the holdings in similar cases both in this and other states having similar provisions in their mechanic’s lien laws, and the question here presented is hardly a debatable one since the dictum of this court through Meals, J., in the case of Schraff v. Brennan, No. 1362, decided February 14, 1917.

A holding, exactly similar to the one we are making here was made by the Supreme Court of Michigan in applying a section of its mechanic’s lien law practically identical with the one under consideration. It will be sufficient to simply refer to it. Smalle v. Ashland Brown Stone Co., 114 Mich., 186.

This decision was followed later in the case of Blitz v. Field, 115 Mich., 675. We experience no difficulty in reaching a similar conclusion in applying our own law.

It follows that a decree may be drawn foreclosing the liens and granting the relief prayed for.

Washburn, J., and Vickery, J., concur.


author: Shields, J.

text:
    COMPETENCY OF TESTIMONY AS TO A PREVIOUS ARREST OF THE DEFENDANT.
    Court of Appeals for Wayne County.
    John Ballard v. The State of Ohio.

    Decided, January Term, 1919.

      Criminal Law — Relevancy of Previous Conduct and Acts of a Defendant — Permissible to Infer Intent from Other Acts than that Charged ■in the Indictment — Instruction to Jury with Reference to Testimony Relating to a Former Arrest — Complaint of Misconduct of Prosecuting Attorney in Argument to Jury — Flection between Counts.

    1. Prejudice can not be based upon the admission of testimony, the recital of which incidentally disclosed 'a previous arrest and detention of the defendant; on the contrary intent may sometimes be inferred from former criminal acts of the defendant, where the testimony relating to such acts is sharply limited in its application to its bearing on the quesion of intent in the case under consideration.
    2. In order that advantage may be taken of the alleged misconduct of a prosecuting attorney in his argument to the jury, it is necessary that objection be entered at the time and if overruled an exception be taken to the action of the court in so doing.

      Kean & Adair, for plaintiff in error.

      Benton G. Hay, Prosecuting Attorney, contra.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, May 13, 1919.

   Shields, J.

The plaintiff in error, John Ballard, prosecutes error to reverse the judgment of the court of common pleas of said Wayne county wherein he was convicted and sentenced for pocket-picking.

While the petition in error filed herein contains numerous grounds of alleged error, but three grounds only were argued and relied on:

1. Error of the court below in the admission of incompetent evidence upon the trial.

2. Error of said court in overruling the motion of the defendant below to compel the state to make an election under the two counts in the indictment upon which a conviction was claimed.

3. Misconduct of the prosecuting attorney.

1. It appears that during the trial testimony was given by one Christy Marks, assistant chief of police at Mansfield, O., and a witness for the state, that both the plaintiff in error and one Harry Martin, who together were arrested and charged with said offense, stated soon after their arrest that they were not acquainted and known to each other until the day before their arrest, having met and become acquainted with each other at Alliance, Ohio, on said day, as appears on page 31 of the bill of exceptions. Like testimony was also given by one Frank Mitchell, also a police officer at Mansfield, Ohio, and a witness for the state, as appears on page 36 of the bill of exceptions. To contradict these statements and as tending to show that they were not true, the state introduced several police officers of Chicago who testified that said Ballard and Martin had been seen together in said latter named city before their said arrest for the offense here charged; that said Ballard was known in Chicago under several different names, and that on one occasion, some ten days before said arrest, said Ballard and Martin were seen and known to have been together at the 'Dearborn street railroad station in Chicago when and where they were arrested and taken in charge by the police of Chicago and taken to a police station in said city. A deposition of one Charles L. Logue was also introduced on behalf of the state who testified that said Ballard and Martin were seen together at said railroad station at said time, and who with the witness William Sullivan further described the circumstances under which they were taken into the custody of said police officers at said time. Objection was made to the foregoing testimony and exceptions taken to the action of the court below in admitting it, for the reason, as claimed, that it tended at least to cast criminal suspicion upon the plaintiff in error and therefore its effect was prejudicial to him. This action upon the part of said court in admitting said testimnny is assigned as error for which it is contended that the judgment of conviction and sentence should be reversed.

Under the statement referred to that said Ballard and Martin were strangers and not known to each other until they met the day.before their arrest, it was not claimed but that it was competent to show that they were seen together before that time .in Chicago as tending to show that they were acquainted and were known to each other, and that their said statement was therefore untrue, but it was urged that said court erred in permitting said witnesses to give testimony as to the circumstances under which .they were thus seen, especially in reference to the fact that they were taken into custody by the police at Chicago and taken to the police station. By referring to page 80 of the bill of exceptions we find that the trial court in instructing the jury upon the foregoing testimony cautioned the jury as follows:

“Now certain testimony of gentlemen from Mansfield and Chicago has been admitted to you, and the.object of this testimony was not to prove to you that the defendant was guilty of committing some other crime. You should ignore testimony that has come to you in the case on that point.
“I will say to you that you must convict the defendant, if you convict him at all, on the evidence of this crime, the crime charged in the indictment, and not use any evidence, if you have received any, of any other crime. But the testimony of these witnesses from Chicago and those from Mansfield was offered to prove to you, as claimed by tbe state, that the defendant and the gentleman named as Harry Martin or Morton were acquainted with each other there, and knew each other before the day or time of the crime and at the time of the crime; that was the object of that testimony. ’ ’

It appears that the foregoing instruction clearly stated the object for which the testimony referred to was given, with the direction clearly expressed that it was permitted to be given for a specific purpose, and to be considered by the jury for that purpose only. Had the court seen fit to do so, said instruction given, in our judgment, might have been extended so as to include other recent acts of the defendant below of the same character, if such acts were shown, as bearing upon the motive and intent in the alleged commission of the offenses 'here charged. It will be noticed that no testimony of any written, accusation against said Ballard and Martin, or either of them, charging them with an offense in Chicago, was offered to be given. Counsel for plaintiff in error argued that the facts given in evidence tended to show that they had committed some crime. Not necessarily so, for a. party may be arrested, and yet such party may be entirely innocent of an offense subsequently charged. Counsel further argued that the offenses here charged can not be made out by proof that the plaintiff in error may have committed some other crime or crimes. Generally speaking this is true, for the policy of the law is to guard against what might be an indefinite multiplicity of issues, which a party charged with crime is not called upon to meet, nor prepared to meet, and the rule is, therefore, that the trial shall be limited to the accusations made, and that “other distinct unrelated offenses” shall not form the subject of inquiry on such trial. But it is laid down by text writers generally and in many adjudicated cases that “to this general rule there are exceptions which have been permitted from absolute necessity, to aid in the detection and punishment of crime. As stated in Yol. 1, Jones’ Commentaries on Evidence, Section 144:

“The intent and disposition with which one does a particular act must be ascertained from his acts and declarations before and at the time; and when a previous act indicates an existing purpose, which from known rules of human conduct may fairly be presumed to continue and control the defendant in the doing of the act in question, it is admissible in evidehce. In many cases it is the only way in which criminal intent can be proved; and the evidence is not to be rejected because it might also prove another crime against the defendant.”

Again the same author in Section 143 says:

“In criminal cases the conduct of the prisoner on other occasions is sometimes relevant, where such conduct has no other connection with the charge under inquiry than that it tends to throw light on what were his motives and intentions in doing the act complained of. The intention with which a particular act is done constitutes often the burden of the inquiry, and to prove the intent it becomes necessary, in many instances, to extend the examination beyond the particular transaction concerning which the accused -is upon his trial. For the purpose, therefore, of proving the intent, not of proving the act itself, it is often permissible to show other criminal transactions of the same sort springing from the like mental conditions. Bishop, in his work on Criminal Procedure, after giving various illustrations as to the proper application of this rule in criminal practice, sums up his conclusion in the following words: ‘It is, that though the prisoner is not to be prejudiced in the eyes of the jury by the needless admission of testimony tending to prove another crime, yet whenever the evidence which tends to prove the other crime tends also to prove this One, not merely by showing the prisoner to be a bad man, but by showing the particular bad intent to have existed in his mind at the time when he did the act complained of, it is admissible; and it is also admissible, if it really tends thus, as in the facts of most cases it does not, to prove the act itself.’ ”

In Brown v. State, 26 O. S., 181, Judge Gilmore, speaking for the court in that case, says:

“"While the general rule unquestionably is, that a distinct crime, in no way connected with that upon which the defendant stands indicated, can not be given in evidence against him on the trial, this rule is not applicable to a case in which it is clearly shown that a connection, in the mind of the defendant, must have existed between the offense charged in the indictment and others of a similar nature. When such connection exists, evidence of such other offense is admissible, not for the purpose of raising a presumption of guilt on the hypothesis that a man who commits one crime will probably commit another, but for the purpose of showing a motive or purpose prompting the commission of the offense laid in the indictment; and being competent for this purpose, it could not have been properly excluded on the ground that it tended to prove the commission of other and distinct offenses.” Ruling Case Law, Vol. 10, Section 105; Chamberlayne on Evidence,Vol. 4, Section 3222; Underhill on Crim. Evidence, Section 90; Wharton’s Crim. Evidence, Sections 884-5; People v. Molineaux, Book 62 L.R.A., 193-308.

If we were left to judge of the character of the testimony referred to, in the light of this record, we would unhesitatingly say that it developed a unity of design and part of the same scheme illustrated in the Orrville incident, as found by the jury in the case at bar. We are of the opinion that the action of the trial court in admitting said testimony was justified by the facts appearing in the record and that in admitting it there was no prejudicial error.

2. As to the second ground of error, it appearing that the offenses charged in the indictment arose out of the same transaction, the motion to compel the state to elect upon which count in the indictment it relied for conviction, was properly overruled. Bailey v. State, 4 O. S., 441; State v. Bailey, 50 O. S., 636.

3. The third ground of error charges misconduct on the part of the prosecuting attorney in the trial of the case. We have examined the record with reference to this ground of error and fail to find that any exception was taken to the statement, alleged to have been made by the prosecuting attorney in his argument to the jury, and we also fail to find that any objection was made to the trial court, or to any ruling made thereon authorizing any action by a reviewing court. Aside from the question raised by the state in reference to the record being silent as to what was said by the prosecuting attorney in reply to the challenge made by counsel for plaintiff in error in argument, in order to avail himself of the error claimed it was incumbent upon counsel for plaintiff in error to have made their objection to the court, and if overruled, to take an exception to the action of the court. Davis et al v. State, 20 C. C., 431-437.

Although not argued, an additional ground of error in the petition in error is that ‘ ‘ the verdict is not sustained by the evidence and the law.” It appears that the requests submitted on behalf of the plaintiff in error to be given in charge by the court to the jury were given, and the charge of the court, in our judgment, contained a correct statement of the law applicable to the case.

As to the evidence, we have no hesitancy whatever in saying that a reading of this record clearly shows that the jury were well warranted in finding the verdict returned by them. Under the testimony, it is apparent that the plaintiff in error and his pal, the latter of whom succeeded in eluding the vigilance of the officers after having been taken into custody and fled, thereby eccaping trial, selected this unoffending old man as their victim to be fleeced, on reaching Orrville, when it. became known to them that he was to change cars there, and how successfully they worked out their criminal purpose is fully shown by the testimony. With the testimony of the witnesses for the state unopposed, showing unmistakably the scheme planned by these “gentry with velvet fingers” to relieve their selected victim of his money as he was jostled by them in the aisle of the car in his attempt to alight therefrom, as shown by the testimony, and after stripping him of his money and leaving the old man, perhaps in a strange city, at the midnight hour, penniless, they hastily sought other quarters on the train in fancied security with their plunder. With the uneontradicted facts of the case before us, we are unanimous in our opinion that the verdict of the jury was fully sustained by the evidence and the law, and finding no error in the record prejudicial to the plaintiff in error, the judgment of the court of common pleas will be affirmed. Exceptions.

TIouck and Patterson, JJ., concur.


author: Powell, J. Shields, J.,

text:
    RESTORATION OF STREETS AFTER REMOVAL OF TRACKS.
    Court of Appeals for Knox County.
    City of Mount Vernon, Ohio, v. B. Berman and Matthew Reed, Partners as Berman & Reed.

    Decided, April Term, 1918.

      Street Railways — Abandonment of Line and Removal of Tracks — Parties Buying Rails and Ties for Junk — May be Required to Insure Restor ation of Streets to Normal Condition — Statutory Obligation of Municipality to keep its Streets Free from Nuisance — Implied Obligation of Railioay Company to Protect the City and Its Property Owners — Grounds for an Injunction — Insolvency of Defendants— Sufficient Remedy at Law — Provisions of Contract Embodied in Ordinance should be Construed in favor of the Municipality.

    Where a traction company voluntarily abandons the privileges granted to it by a municipal franchise, bond may be required securing the city that its streets will be left in as good condition as before the ties and rails were removed.

       Judgment reversed and holdings of the dissenting opinion affirmed by the Supreme Court, May 13, 1919.

   Powell, J.

This is an action for injunction and is in this court on appeal from the judgment of the court of common pleas of this county. The defendants are the purchasers of the property of the Mt. Vernon Railway Company, a corporation, whose franchise had been forfeited and whose property was sold under an order of the court of cpmmon pleas at receiver’s sale. A large part of the property so sold consists of a line of railway track on several of the streets of the city of Mt. Vernon for the operation of a trolley system of car lines in said city. Some parts of the property so sold have been removed. Such parts of the railroad tracks as could not be removed without injury to the streets on which they are located are still in place where located when said track was last laid. It is to prevent the removal of these parts of the track until a bond or other security is given conditioned that defendants will relay the paving that will necessarily be tom up in removing the rails from the streets. There is no question of ownership. It is conceded that the rails belonged to the railway company whose property has been sold at receiver’s sale and that the title to the property passed by such sale to the defendants in this action, who were the purchasers of the same, but subject to any rights or liens that plaintiff might have under the terms of the franchise. Plaintiff claims -some such right, which is being worked out in another proceeding in the court of common pleas. In 1907 the city of Mt. Yernon granted a franchise to the railway company for a period of twenty-five years. The ordinance granting the same is a part of the agreed statement of facts on which the case was tried in the court below and on which, in part, the same is tried in this court. All the rights of the parties are to be found in said ordinance and in proceedings had since its passage. The ordinance granting the franchise constitutes a contract when its terms have been accepted by the party to whom such franchise is granted. As is true of every contract, “the rights of the parties are defined by the contract itself. ’ ’ There is no question made as to the validity of the ordinance. It is conceded that it was regularly passed and that all the rights of- all the parties to the same are found or merged in the ordinance as it now exists. The contention of the parties grows out of what is claimed to be an implied obligation on the part of defendants to relay the pavement on the streets along the lines of track after the rails have been taken up and removed. This implied obligation is denied by defendants. There is no averment in the petition that the defendants or either of them is insolvent, either at the present time, or prospectively. Nor is there any other ground alleged in the petition which entitles plaintiff to an injunction as prayed for. The ordinance passed by the city February 11, 1918, after said sale had been made, does not affect the rights of the parties in any particular, nor is it sufficient to sustain an injunction, as is asked for by the plaintiff in this action.

A majority of the court is of the opinion that the rights of the parties hereto are contractual and are determined by the provisions of the franchise ordinance, either by express provisions, or under such implied obligations arising thereon as may be necessary to carry out the purposes for which the contract was made. The ordinance is entirely silent as to the removal of the rails and the other property of the railway company or its successors in title, either at the termination of the franchise or at the forfeiture of its franchise rights. It is a rule of law in this state that

“While much regard will be given to the clear intention of the parties, yet where the contract is entirely silent as to a particular matter, the courts will exercise great caution not to include in the contract, by construction, something which was intended to be excluded.” Gas Company v. Akron, 81 O. S., 33.

It is further held in the same ease, that where a franchise is not perpetual but indeterminate, the incorporated company may voluntarily forfeit its right to exercise its privileges within the municipality and wholly withdraw therefrom. “But in such case the municipality has no right to prevent the incorporated company from removing its property, nor to take possession of and make use of the same without due process of law. ’ ’

We think these rules are applicable in the case under consideration. The rights of the parties are contractual and are fixed and determined by the contract' itself. The plaintiff is without right to prevent the defendants from removing their property, provided the same is done with as little damage to the streets of the eity as possible. The duty of keeping its streets in repair is upon the city by statute and there is nothing shown in this record that transfers such duty from the city to the defendants. And the presumption arises that the matter of removal of the property of the defendants, when such removal becomes necessary, was considered and taken into account at the time of the passage of such franchise ordinance.

It follows that defendants are entitled to a judgment in their favor as prayed for in their answer and cross-petition'. Decree for defendants. Motion for a new trial, if filed, will be overruled and- exceptions may be noted.

Hughes, J., (of the Third District sitting in the place of Houck), concurs.

Shields, J.,

(dissenting):

I can not concur in the conclusion reached herein by my associates and the importance of the ease leads me to place the grounds of my dissent on record.

As indicated in the majority opinion, the controlling, if not the sole, question presented for determination by the record is, Can a street railway corporation obtain a franchise from the council of a municipality to operate its cars upon the improved streets of such municipality for a stated period, and after laying its tracks on such streets and operating its cars thereon for several years and finding it to be an unprofitable business enterprise, cause the property of such corporation, before the expiration of such period, to be placed in the hands of a receiver and sold to private parties who, to recover possession of the same, undertake to tear up such streets by removing the ties between the brick and the tracks laid thereon, thereby leaving said streets full of holes and rendering the same practically unfit and unsafe for public travel? Can such property be so removed without first requiring said parties to give bond to restore said streets to their former condition of usefulness ?

That the ordinance passed by the council of the city of Mt. Vernon became a contract upon its acceptance by the railway company is not open to question. That its successor acquired no more rights than the original grantee is equally true, and, as I view it, whatever rights the city has in this action are referable to the contract originally made with said railway company. Change of ownership by title acquired at judicial sale in nowise affects the terms of such contract.

It appears that the franchise was originally granted to the Mt. Vernon Electric Railway Company, which afterward transferred its title and interest in the same to the Mt. Vernon Railway & Light Company, which company afterward became em-b'arassed and its property was sold as stated. The contract was for the full term of twenty-five years. The injunction below, as shown to this court on the hearing, prevented the defendants from removing any portion of the ties and rails laid on the streets in question, and that none have been removed. Whatever the fact may be in this respect, the defendants claim the right to remove them and the judgment of this court-is that they have such right, holding

“that the rights of the parties hereto are contractural and are determined by the provisions of the franchise ordinance, either by express obligation, or under such implied obligations arising thereon as may be necessary to "carry out the purposes for which the contract itself was made. ’ ’

This holding rests upon the rule of law laid down by the Supreme Court in the case of East Ohio Gas Co. v. City of Akron, 81 O. S., 33, which in substance is a reassertion of the rule announced in the ease of Cleveland Elec. Ry. Co. v. City of Cleveland et al, 204 U. S., 116. In neither of these eases, however, is the question raised or determined as to the manner in which the owning company may take possession of its property at the termination of the franchise period. In the gas company ease it is held that,

‘ ‘ The incorporated company may therefore voluntarily forfeit its right to exercise its privileges within the municipality and wholly withdraw therefrom; but in such case "the municipality has no right to prevent the incorporated company from removing its property, nor to take possession of and make use of the same, nor to grant the right to use the same to another company, without due process of law.”

True it is held in that case that the gas company has the right to remove its gas mains laid in the alleys and streets, but it is silent as to the method or manner of removing them. Does it mean that it may dig up the alleys and streets to such a depth as gas mains are usually laid in the ground and after removing its gas mains leave the alleys and streets exposed and unprotected, for the city to repair in a passable and safe condition for public use and travel? Or does it mean that it may remove its gas mains by restoring the alleys and streets to the same condition they were in before such removal ? It would seem that the right to place its gas mains in the ground carried with it the obligation to replace and restore it as before. Under the statute authorizing a railway company to cross a public highway or street it is required that such railway put such highway or street in such condition as not to impair its former usefulness. State ex rel vs Dayton & Southeastern R. R. Co., 36 O. S., 434. And in Little Miami R. R. Co. vs Commissioners, 31 O. S., 338, which was also a railroad crossing case, Judge Boynton in announcing the opinion in said case says that ‘ ‘ the duty to restore is correlative with the right to intersect or cross. ’ ’ And in the case at bar the right to enjoy the use of the streets imposed the obligation to keep them unobstructed and in repair. While in the cases cited the express provision of the statute forms part of the charter of the railroad company, so here the ordinance granting the franchise contains the express provision with reference to repairs. The ordinance clearly contemplates that the continued úse of the streets for public travel should not be interfered with by the construction of this street railway thereon, except such as was necessarily incident to the operation of its cars. Any further grant of power was not delegated to the municipality to exercise. The council acted simply as trustees for the public and its powers were clearly defined by law.

Unlike an ordinary contract between individuals where the contracting parties are privileged to agree to do or not to do certain things, here the contract entered into by the council of the city of Mt. Vernon with the railway company was of a public character. It concerned the public and was impressed with legislation of a public character. It affected the property interests of every abutting property owner on the streets on which the tracks of the railway company were and are laid, covering as they do the principal business and residential portions of the city, and it likewise involved the observance of the statutory regulation that the streets of the city were to be kept open and free from nuisance, notice of which the railway company was chargeable with when it accepted the ordinance. In the majority opinion herein it is said that,

“the plaintiff is without right to prevent the defendants from removing their property, provided the same is done with as little damage to the streets of the city as possible.”

That the defendants have the right to remove this property is conceded, but the generosity of my associates would limit the exercise of such right to the condition that it be done “with as little damage to the streets of the city as possible.” It is unnecessary to remark that such work would scarcely be done with scrupulous regard for the interests of the city, especially by nonresidents of the city. Said opinion further says:

1 ‘ The duty of keeping its streets in repair is upon the city by statute and there is nothing shown in this record that transfers such duty from the city to the defendants. And the presumption arises that the matter of removal of the property of the defendants, when such removal becomes necessary, was considered as taken into account at the time of the passage of such franchise ordinance.”

As before stated, the controversy here, in my judgment, arises out of a construction of the contract between the city and the railway company and not between the city and the purchasers of this property. But assuming that it is as claimed by my associates, would not the statutory obligation upon the part of the city to keep its streets unobstructed and free from nuisance remain the same? There can be no transfer of this obligation under the law. It is fixed by statute and is beyond the domain of private contract. Hence the condition of the record in this respect, whatever it may be, is wholly immaterial and irrelevant.

As to the presumption following the action of the council that the removal of the tracks might become necessary at the expiration of the franchise period, it is enough to say that the presumption was then as now that the introduction of an electric railway in a city like Mt. Vernon signalized progress and advancement, and that is was natural to expect that it had come to stay,, ind that the owning company would not become defunct after half the life of the franchise period expired. But whatever was then in the mind of the council in this respect, I am of the opinion that there is an implied obligation, both moral and legal, resting upon this railway company, and upon those acquiring its property by purchase of otherwise, to protect the city, and through it the interests of the property owners on these streets against a ruthless invasion of their property rights, and that they should be required to give bond as prayed for, for the restoration of the streets to their condition before the work of dismantling the same is commenced. If the suggestion made in said opinion be followed, the inquiry naturally arises, "What would the consequences be of allowing the defendants to go forward and tear up these streets at their will, leaving them full of holes, impassable to public travel, and even dangerous to life and limb, as they necessarily would be? What relief would be afforded to each abutting property owner in front of whose property there w'ould be created a standing nuisance, especially in times of rain when the excavations made in the street by the removal of this property would accommodate the accumulation of water? And what would be the extent of the liability of the city in damages for injuries that might be sustained by reason of these exposed and unprotected streets, not to mention its liability under a criminal prosecution for maintaining what would be equivalent to a public nuisance ? Is the law powerless to afford relief by injunction against this conditions of things ? The answer is that courts of equity are provided to prevent the consummation of threatened wrongs, and the equitable remedy pointed out is by injunction. Parties are not relegated to the slow procedure of courts of law to work out their rights under the circumstances described. In High on Injunctions, Vol. 1, Sec. 580, it is laid down that,

“Where the legal remedy is plainly insufficient to meet the requirements of the case and to avert the threatened injury, equity will not compel the person aggrieved to await the tardy action of the ordinary tribunals. ’ ’

Nor are parties obliged to wait until tbe wrong is done, but they may avail themselves of the power that inheres in a court of equity to stay the hand of the wrong-doer and prevent the perpetration of threatened irreparable injury. As is laid down in High on Injunction, Yol. 1, See. 18:

“The remedy by interlocutory injunction being preventive in its nature, it is not necessary that a -wrong should have been actually committed before a court of equity will interfere, since if this were required it would in most cases defeat the very purposes for which the relief is sought by allowing the commission, of the act which complainant seeks to restrain. And satisfactory proof that defendants threaten the commission of a wrong which is within their power is sufficient ground to justify the relief.”

Of course this is upon the assumption that the petition here and the amendment thereto contain a sufficient statement of the. essential ultimate facts entitling the plaintiff to equitable relief, all of which I think duly appears, but it is to be observed that my associates hold that,

“there is no averment in the petition that the defendants or either of them is insolvent, either at the present time or prospectively, nor are there any other grounds alleged in the petition on which an injunction could be based as prayed for in the petition. The ordinance passed after the sale had been made by the city, can not and does not affect the rights of the defendants in any particular. ’ ’

If the position heretofore assumed is correct, namely, that the purchasers of this property are not relieved of the obligation claimed to be resting upon the original grantee of this franchise, then the want of an averment of the insolvency of the defendants is immaterial; otherwise it might be. Irrespective of this, insolvency alone in the face of this record should not defeat the relief asked for. In High on Injuetions, Yol. 1, Sec. 18, it is laid down that,

“Upon the question whether the mere insolvency of the defendant, unaccompanied by any other circumstances, is sufficient to justify relief by injunction, the authorities are conflicting. Although there are frequent intimations by the courts that mere insolvency is sufficient ground for equitable interference, yet the weight of the actual adjudications upon the question is clearly to the effect that the mere inability of the defendant to respond in damages at law, although it may be taken into consideration upon an application for the extraordinary aid of equity by injunction, does not of itself constitute sufficient foundation for. the relief.”

Counsel in their argument for the defendants contended that,

‘ ‘ The petition does not state a cause of action warranting the issuing of an injunction and the facts not only show that it is not entitled to such relief, but to the contrary, that it is not entitled to this relief.”

In High on Injunctions, Yol. 1, Sec. 30, it is laid down that,

“The mere existence, however, of a remedy at law is not in itself sufficient ground for refusing relief in equity by injunction; nor does the existence or non-existence of a remedy at law afford a test as to the right to relief in equity. To deprive a plaintiff of the aid of equity by injunction it must appear that the remedy at law is plain and adequate; in other words, that it is as practical and efficient to secure the ends of justice and its proper and, prompt administration as is the remedy in equity. And rmloss this is shown a court of equity may lend its extraordinary aid by injunction, notwithstanding the existence of a remedy at iaw. ’ ’

It is apparent that the cost of restoring these streets to their former condition of usefulness, including the elements of repair and damage and the interruption to public travel, is so indefinite and uncertain as to place it beyond the possibility of any reasonable computation in damages, thus showing that a remedy at law is not adequate to afford propert relief.

Quoting from the opinion of the gas company case already cited, my associates say:

“While much regard will be given to the clear intention of the parties, yet where the contract is entirely silent as to a particular matter, the courts will exercise great caution not to include In the contract, by construction, something which was intended to be excluded. ’

An as abstract proposition of law the foregoing is correct. While it is not the office of courts to read into contracts “something which was intended to be excluded, ’ ’ courts will not hesitate to take notice of that which was clearly intended by the terms of a contract to conserve public interests and protect public property from being destroyed, and further, courts will not hesitate to'enjoin the perpetration of a public wrong sought to be committed under the guise of a specious pretext of pursuing individual rights.

While I think that the equities of this case are with the eity, and that the relief prayed for should be granted on the grounds and for. reasons stated, there is an additional reason that might well be urged why such relief should be granted and that is, that the indefiniteness and uncertainty of the provisions of the contract in question are such as that they should be construed and resolved in favor of the eity as against the defendants, under favor of the recent holding of the Supreme Court in the case of Cleveland Ry. Co. v. City of Cleveland, 97 O. S., 122, wherein it was held that,

“The Constitution of Ohio provides that all property shall be ‘subservient to the public welfare.’ By virtue thereof, where a private person or corporation enters into a contract with the. public and such contract is of doubtful or uncertain meaning as to any of its provisions, that construction should be adopted that is most favorable and advantageous to the public interest and general welfare.”