text:
    (Third Circuit—Hancock Co., O., Circuit Court
    May Term, 1895.)
    Before Seney, Day and Price, JJ.
    THE STATE ex rel. JOSEPH DUNN et al. v. BENJAMIN F. FREED, TREAS., et al.
    Boards of education are possessed only of such limited powers as are expressly provided by statute, and persons who deal with such boards are held, and presumed to know, the limits within which they can lawfully transact business, and can secure no rights which are enforceable, by a contract, unless the contract is . clearly authorized by law.
    There is no conflict in the provisions of sections 3987 and 3995 R. S.
    Section 3995, R. S., is not repealed by implication or otherwise, but is in full force.
    The apparatus mentioned in section 3987 is the general furnishings necessary to properly equip a school room so as to make it convenient and fit for general use for school purposes.

      The apparatus mentioned in section 3995 is a special apparatus or appliance, and must be either philosophical or for the demonstration of branches of education taught in the district. Such special apparatus can only be purchased by township boards of education in virtue of the provisions of section 3995.
    Error to tlie Court of Common Pleas of Hancock County.
   Day, J.

Ou September 23, 1893, the Board of Education of Pleasant Township School District, Hancock County, Ohio, purchased of J. W. Bliler a lot of “Kenedy’s Mathematical Blocks, ’ ’ for the demonstration of lessons in arithmetic in the schools of the district, agreeing to pay therefor $308.00. The board caused the clerk to issue to said Bliler two orders on the treasurer of the board, Nos. 78 and 79, each for $154.00 — payable in September, 1894, and September 1895.

The relators, who are residents and taxpayers in the district, for themselves and others similarly situated and interested, and numerous, brought suit against Freed as treasurer, the Board of Education and Bliler, defendants, and in a petition set out the facts of the purchase of the blocks and the issuing of the orders; say the same was illegal' — -not authorized by any law, and, in addition, was procured by fraud by means of false and fraudulent representations of material facts, misleading the Board of Education into making the purchase. They say the order due and payable in September, 1894, is about to be paid by the treasurer, and pray for an injunction to restrain payment of the orders, on the grounds of their illegality and because procured by fraud. A temporary injunction was allowed. Bliler answers, the Board of Education and Freed make default. Bliler in his answer admits the purchase of the blocks by the board, the price to be paid and the issuing of the orders, all as stated in the petition. Denies the transaction was illegal, and denies all fraud and false representations, and prays judgment in his favor.

The relators demurred, to this answer. The demurrer was overruled, and the relators not wishing to reply or further plead, the court entered judgment on the demurrer, dissolving the injunction and dismissing the petition, and requiring the relators to pay the costs. This action of the court is complained of by the relators, and claimed to be erroneous. They prosecute error, and seek to obtain a reversal of the judgment of the common pleas and an order sustaining the demurrer to Bliler’s answer, and making a perpetual injunction against the payment of the orders by the treasurer of the board.

In the situation of the case, the charge of fraud being-denied and no evidence produced in support of it, it drops out entirely, and leaves a single proposition for the consideration and decision of this court, viz: Was the purchase of the blocks by the Board of Education and the issuing of the orders in payment thereof illegal, and so void.?

The powers of boards of education are limited. They have such authority, only, as is conferred by law, and when they take action outside of the law and against the plain provisions of law, such action is absolutely void. Persons who deal with boards having limited powers only, are held and presumed to know the limits within which such board can lawfully transact business; and they can acquire no rights which are enforcible, by a contract, unless the contract is clearly authorized by law.

The transaction in question was the purchase by the board of education, of “apparatus” for the use of the schools of the township district. There are two sections of the statutes authorizing the purchase of apparatus by boards of education. Section 3987, Rev. Stat., authorizes boards of education ‘ ‘ to build, enlarge, repair and furnish the necessary school houses, purchase or lease sites * * or rent suitable school rooms, provide all the necessary apparatus, and make all other necessary provisions for the schools under its control,” etc. In this section there is no limitation in the amount that may properly be expended in any one year for “apparatus.” Section 3995, Rev. Stat., also provides for the purchase of “apparatus” as follows: “The board of education may appropriate money from the contingent fund for the purchase of books, other than school books * * and in the purchase of' philosophical or other apparatus for the demonstration of such branches of education as may be taught in the schools of the district,” etc. Under this section only $37.50 per year can be expended in township districts. It is suggested, but not urged, by counsel for defendant that sec. 3995 is repealed by “An act to provide for the more efficient organization of the common schools in township districts” — known as the Workman law^ — passed March 15, 1892. By this law, section 3987, is amended by inserting the words, ‘ ‘ and provide all necessary apparatus. ’5 This is the only change made in sec. 3987, and, by virtue of the amendment, the word “apparatus” for the first time appears in that section. By the act of March 15, 1892 — the Workman law — section 3995 is not named as being repealed, but there is a general sweeping provision, that all sections or parts of sections of any law, ‘! in conflict with the provisions of this act, to the extent of the conflict are hereby repealed.” The suggestion is that section 3995, on the subject of ‘ ‘ apparatus, ” is in conflict with the amended provisión of section 3987 on the same subject, and hence is repealed by implication. We regard the suggestion as made in a jocular sense. Repeals by implication are not favored, and are not often accomplished in Ohio, and if they were', in this instance, the necessary implication is absent. There is ho conflict in the provisions of the two sections. A careful reading and comparison of their provisions, and noting the connections in -which they occur, makes it plain, we think, that the “apparatus” provided for in section 3987, is the ordinary general apparatus or furnishing, such as seats, heating apparatus,1-black-boards, desks, etc., necessary in all school-houses, to completely equip them an.d make them suitable and comfortable for the general purposes for which common schools have' been instituted. Nor was the provision, in my judgment, intended to apply in any case in which the board of education has title to the school building; for in such case, no provision was needed. Authority to furnish the school house is given by the first clause of the section. It would seem, authority to furnish the necessary apparatus, was only intended to apply in a case where the school building 'is owned by a third person and is rented, merely, by the board. In such case, the board is authorized to provide the necessary apparatus; i. e., to furnish rented rooms with seats, desks, heat, bláck-boards, charts, etc.; anything in the way of furniture and appliances necessary to thoroughly equip the school room in-a general sense,so as to make it convenient and fit, in such general sense, to be occupied and used for general' school purposes.

The apparatus provided for in section 8995, is the very opposite of that provided in section 3987; in that the latter is particular and special, while the former is general. The apparatus of section 3995 must be philosophical apparatus, or apparatus for demonstrating branches of education taught in the schools of the district. In either case, it is special apparatus, apparatus for a special purpose, and not a general purpose. If this reasoning is correct, we have in force two independent provisions of law; not in conflict with each other. One providing for one class of apparatus, and the other for another and very different class; and it is obvious that the problem submitted is solved by ascertaining to which class Kenedy’s Mathematical Blocks, for the purchase and payment of which the orders in question were drawn, belong. And this fact is not difficult of ascertainment. Both the petition and answer aver that Kenedy’s Mathematical Blocks are a device (apparatus) intended and used for the demonstration of lessons in arithmetic. We take judicial notice of the fact that arithmetic is one of the branches of education taught in all the common schools of the state including Pleasant township district in Hancock county; and this brings the ‘)Blocks”squarely within the description contained in section 3995, of “An apparatus for the demonstration of such branches of education as may be taught in the schools of the district. ’ ’ They are a special apparatus for the demonstration of a special branch of education. They could not, in a township district, be purchased under the provisions of section 3987, but must be acquired,if at all, under section 3995. ■

E. T. Dunn, for the relators.

B. W. Waltermier for Bliler.

We conclude the contract for the purchase of these blocks and the orders on the treasurer of the school fund for the payment hereof, were in violation of the express provisions of law; were not- authorized by any law, and are void. We find the court below erred in the respects indicated, and for that reason the judgment is reversed; and this court rendering the judgment the common pleas should have rendered; sustains the demurrer to the answer of Bliler; and on the facts which are undisputed, we find for the plaintiffs, the relators, and make the injunction perpetual, as prayed for in the petition. Execution is awarded for costs, and cause remanded for execution.


source: Caselaw Access Project

author: Scribner, J.

license: Public Domain

text:
    (Sixth Circuit-Wood County, O., Circuit Court
    April Term, 1894.)
    Before Haynes, Scribner and King, JJ.
    ARCHIBALD C. RIDER, ADM’R, v. THE CINCINNATI, HAMILTON & DAYTON RAILROAD CO.

      Action for damages for injury by railroad — Averments sufficient as against general demurrer.

   Scribner, J.

(orally).

This cause comes to this court on error from the Court of Common Pleas of Wood County.

The plaintiff, as administrator of the estate of Archibald D. Rider, filed ¡his petition against the [defendant railroad company, alleging that the deceased had been killed by the carelessness and negligence of the railroad company. The defendant filed a general [demurrer to the petition, which, upon argument before the Court of Common Pleas, was sustained, and the plaintiff not desiring [to plead further, the petition was thereupon dismissed, and judgment ¡rendered against the plaintiff for costs of the action. Thereupon the plaintiff, as plaintiff in error, filed his petition in error in this court to reverse the judgment of the Court of Common Pleas in sustaining the general demurrer to his petition and in dismissing his petition, 'alleging that the action of the Court of Common Pleas was error.

The petition in error so filed brings before us the question as to whether or not the [allegations and statements in the petition, so far as they are plead and which are admitted to be true by the demurrant, show sufficient facts to constitute a cause of action against the railroad company. After stating certain preliminary matters, the plaintiff in his petition below proceeds to aver that at the time of the committing by the defendant, the Cincinnati, Hamilton & Dayton Railroad Company, of the grievances herein complained of, it was, and it ever since has been and is a corporation organized under the laws of Ohio, and engaged in operating a certain railroad in Wood County, Ohio, extending in a southwesterly and northeasterly direction through said county, and through the incorporated village of Tontogany therein, and crossing certain lands, to wit: A farm of eighty acres owned by said parents of said Archibald D. Rider, deceased, lying about one-half mile south-westerly from said village;' and said railroad intersected and crossed certain public highways lying and extending along the north, south, and. west sides of said lands. That upon said lands was a private crossing over said railroad from the lands on the east thereof to the lands on the west thereof, which the owners of said lands and farm had a right to have and maintain, and had maintained and used, with the knowledge and acquiescence of said railroad company, continuously for many years prior to the 4th day of September, 1893. That on said 4th day of September, 1893, said Archibald D. Rider, then in full life (now deceased), while lawfully and rightfully walking upon the track of said railroad in a northeasterly direction at or near to said farm crossing, and while about seventy (70) rods south of the crossing and intersection of said highway that extends along the north side of said lands with said railroad, and about ninety-five rods north of the crossing of said railroad and the highway extending along the west aud south sides of said lands, and while going from one part of said farm to another part thereof in the performance of his lawful duties in the service of his said parents, and without any negligence or fault on his part, was struck by a locomotive which said defendant by its agents and servants then and there negligently, wantonly, wilfully and unlawfully caused to be propelled and run swiftly and noiselessly on, over and along said railroad in a northeasterly direction, and against and upon said Archibald I). Rider, whereby he was, then and there and thereby, instantly killed.

The said agents and servants of said defendant then and there operating said locomotive, negligently, wantonly, wilfully and unlawfully, failed and omitted to give any warning by ringing a bell or blowing a whistle, or otherwise, at any of said crossings of said highways and said railroad, or at said private crossing of said railroad, or elsewhere, of the approach of said locomotive, whereby said Archibald D. Rider, without any negligence or fault on his part, and without being apprised or warned of the approach of- said locomotive, and being unaware of tire approach thereof, was thereby struck and killed as aforesaid.

That said place, at which said decedent was walking as aforesaid upon said railroad track when he was so struck and killed, was, and for many years prior to said date had been lawfully used by himself and by the public as a footpath and thoroughfare, all of which was well known to and acquiesced in by the defendant.

Now, on looking closely to these averments, it will be seen that the place at which the deceased was killed was upon the farm of his father; that the deceased was a member of his father’s family; that the railroad intersected and crossed certain public highways and extended along the north, the south and west sides of said lands; that upon the lands was a private crossing over said railroad from the lands on the east thereof to the lands on the west which the owner of the said lands and farm had a right to have and maintain, and had maintained and used with the knowledge and acquiescence of the railroad company continuously for many years prior to the 4th day of September, .1893. That on the 4th day of September, 1893, said Archibald D. Rider, then in full life (now deceased), while lawfully and rightfully walking upon the track of said railroad in a northeasterly direction at or near to said farm crossing, and while about seventy rods south of the crossing and intersection of said highway that extends along the north side of said lands with said railroad, and about ninety-five rods north of the crossing of said railroad and the highways extending along the west and south sides of said lands, and while going from one part of said farm to another part thereof, in the performance of his lawful duties in the service of his said parents, and without any negligence or fault on his part, was struck by a locomotive which said defendant by its agents and servants then and there negligently, wantonly, wilfully and unlawfully caused to be propelled and run swiftly and noiselessly on, over and along said railroad in a northeasterly direction, and against and upon said Archibald .D. Rider, whereby he was, then and there and thereby, instantly killed.

That said agents and servants of said defendant then and there operating said locomotive negligently, wantonly, willfully and unlawfully failed and omitted to give any warning by ringing a bell or blowing a whistle or otherwise at any of said crossings of said highways and said railroad, or elsewhere, of the approach of said locomotive, whereby said Archibald D. Rider, without any negligence or fault on his part, and without being apprised or warned of the approach of said locomotive, and being unaware of the approach thereof, was thereby struck and killed as aforesaid. That the said place at which said decedent was walking as aforesaid upon said railroad track when he was so struck and killed, was, and for many years prior to said date had been lawfully used by himself and by the public as a footpath and thoroughfare, all of which was well known to and acquiesced in by the defendant.. These averments relate to the locus in guo,to the situation of the place where the deceased was walking, and to the right that he had to be there ; of course subject to the right of the railroad company to operate in a reasonably careful manner its line of railway through the farm of the father. Then it appears that at that time, according to the averments of the petition, the railway company, or the agents of the railroad compaiiy in charge of the engine at the time of this accident, omitted to give any warning by ringing the bell or blowing the whistle, or otherwise, at any of said crossings and said highway. Now, it appears there were highways at the south side of the farm, on the south of it and on the west of it, and according to the averments of this petition, no whistle was blown or any bell rung at any of the public crossings over which this line of railway passed .in reaching the farm.

Parker & Fries, for plaintiff in error.

P. D. Marshall and F. A. Baldwin, for defendant in error.

Then there is the averment that while the deceased was lawfully in the place where he was walking, where he had a right to he on the occasion set forth in the petition, in the performance of his lawful duties, in the service of his parents, without any knowledge or fault on his part, he was struck by the locomotive of the defendant, and instantly killed.

Now, it is alleged that this was negligently done; that it was wantonly done; wilfully done, and unlawfully done. In the argument, counsel for plaintiff in error stated that he did not mean by this averment to charge that the engineer of the railroad com] ¡any willfully and unlawfully run his locomotive upon the deceased, but the language used in this petition seems to require that construction.

Then there is the averment that in omitting to whistle and ring the bell, the parties in charge of the locomotive acted negligently, wantonly and unlawfully.

While it may be said that some of these averments are averments of mere conclusions of law, still it appears to us that they are averments of matters of fact.

It appears to us that the Court of Common Pleas erred in sustaining a demurrer to the petition. It seems to us that there is enough stated in the petition to entitle the plaintiff to a trial by jury as to whether or not the matters stated in the petition are true. We think, therefore, that the judgment of the Court of Common Pleas must be reversed, the demurrer to the petition overruled, and the case remanded to the Common Pleas Court for further proceedings, and it is ordered accordingly.


author: Smith, J.

text:
    (First Circuit -Hamilton Co., O., Circuit Court
    Jan’y Term, 1895.)
    Before Swing and Smith, JJ.
    THE BELMONT MINING CO. v. ALFRED G. ROGERS.
    1. In an action tor deceit brought to recover damages claimed by the plaintiff to have been suffered by it, by reason of its reliance on representations alleged to have been made by the defendant, which the plaintiff averred were false, and known by the defendant to be false when he made them, to authorize the plaintiff to recover, the representations must have been as to an existing, ascertainable • fact, as distinguished from a mere matter of opinion — on which latter the plaintiff was not authorized to rely.
    2. On the facts disclosed by the evidence in this case, the trial court did not err in sustaining the motion of the defendant to dismiss the attachment issued at the commencement of the action, which motion was based on the ground that the allegations of the affidavit, upon the filing of which the attachment issued, were untrue.
    Error to tlie Court, of Common Pleas of Hamilton County.
   Smith, J.

The question presented is, whether the court of common pleas erred in sustaining the motion to discharge the attachment which had been issued on the filing of the petition and of the affidavit for an attachment at the commencement of the action, and under which certain property had been attached and a garnishee served.

On March 21, 1891, the Belmont Mining Co. filed its petition against Rogers, the allegations of which were substantially as follows: It averred that it was a corporation under the laws of the state of Kentucky. That on February 20, 1888, the defendant being desirous of inducing the plaintiff to buy from C. P. Costigan and wife, who were then the owners thereof, a certain gold mine in the state of Colorado, to induce the plaintiff to do so, on that day and at divers times before and since, represented to the plaintiff, and to Harry Worthington, H. H. Hoffman, H. P. Thompson and A. J. Marlday, all of them directors of plaintiff and its agents, tliat said mine was a rich and valuable mine, and that the product thereof, as shown by the mill returns, showing the amount of gold produced therefrom, (which mill returns said Rodgers produced and showed to said plaintiff and to said officers), was rich in value — said Rogers at said time representing that said mill returns, as compared with the amount of ore taken out and crushed, showed a product of about $50 per ton. Said Rogers also representing that said mill returns were the result of the crushing of about 800 tons of ore, whereas in truth and in fact, as was at all of .said times well known to said Rogers, the amount of ore that had been taken out and crushed for the purpose of producing the gold shown in said mill returns, was in excess of 1400 tons; and that thereby, if said Rogers had shown said fact, it would have been apparent that said ore, instead of •producing an average of $50 per ton, had produced an amount not exceeding an average of $25 per ton, and that -therefrom it would have appeared that said mine, instead of being a rich and valuable mine, was substantially worthless, .and that the product therefrom was not sufficient to pay the •expenses of working the same. And that the said Rogers at the same time and with the same purpose, represented to the plaintiff and to said other persons, that he had no interest in the sale of said property, and that his sole compensation for inducing the plaintiff to purchase said property was that he would thereby receive a commission from this plaintiff, which said Rogers stipulated for, and which this plaintiff agreed to, and would thereby become and be this plaintiff’s agent for said property — -said Rogers representing at the same time that he held an option for the purchase of said property, at and for the price of $150,000, which said Rogers averred and stated to this plaintiff could easily be produced from said mine, so that after the making of the first payment of $15,000, all additional payments could be paid from the product of the mine without calling on the plaintiff for further payments. But plaintiff says that in truth and in fact at those times Rogers had a contract with the Costigans, whereby it was agreed that in case Rogers should sell the property to any purchaser for $150,000, the Costigans were to pay to the wife of Rogers a large sum of money. And thereupon, relying upon said representations, on said February 20, 1888, the plaintiff authorized Rogers to purchase for it said property for $150,000 — $15,000 to be paid on the delivery of the deed, $25,000 in six months thereafter, and the remainder in sums of $25,000 every two months till fully paid — -and Rogers was authorized to pledge the property for said deferred payments; with interest.

It is not directly averred in the petition that the purchase was actually made in pursuance of this authority, or that any part of the $15,000 was paid, but this further allegation is made, from which it perhaps may be implied that the purchase was made and part of the price paid. It says: “And plaintiff further says that thereafter, it being at all times impossible to realize from the working of said mine sufficient to pay the expenses of working the same, and it being impossible to realize therefrom any sum or sums applicable upon the payment of the purchase money therefor, this plaintiff then, out of its own means, laid out in the expenses of working said mine, in addition to the product thereof, and in the payment of the deferred installments of the purchase money, to the vendors, Emily Costigan and G. P. Oostigan, her husband, the further sum of $25,000, and that none of said sums would have been paid out or expended by this plaintiff unless this plaintiff had relied upon the truth of the representations herein before set out as made by said Albert Rogers, all to the damage of this plaintiff in the sum of $40,000.“ Wherefore judgment is prayed for that sum.

The affidavit which was filed by plaintiff alleged as the ground for the attachment, “that the defendant, Alfred G. Rogers, fraudulently incurred the obligation for which the suit is brought, as will more fully appear from the petition, filed herewith, the contents of which this affiant has read, and which this affiant is acquainted with, and the facts therein stated are within affiant’s personal knowledge and are true.”

The motion to discharge the attachment was based on the grounds: “1st, That the allegations of the affidavit were untrue; and, 2d, Because of other errors and defects in the affidavit. ’ ’

On the hearing of this motion affidavits were presented by each of the parties, and the court discharged the attachment, and the plaintiff excepted. A bill of exceptions containing all of the evidence was allowed, and a petition in error filed by the plaintiff to reverse the order so made.

We are of the opinion that in a case like this, the court is bound to look at the evidence thus brought into the record by the bill of exceptions to see if the order thus made was right. If it. is manifestly wrong it should be reversed. It is only the Supreme Court which is not bound to review the weight of the evidence, and determine whether on that the order was erroneous.

It is manifest from what lias been said, that the action was one to recover damages for deceit alleged to have been practiced by the defendant upon the plaintiff. That by means of representations made by Rogers to the plaintiff, which were untrue, and which when made were known to the defendant to be untrue, the plaintiff was induced (at least) to authorize Rogers to purchase for it the gold mine on the terms named, and perhaps the petition is open to the construction, if not looked at critically, that the purchase was made and that the plaintiff expended $40,000 therefor which sum, by reason of the falsity of the representations, was lost to the plaintiff.

In looking at the allegations of the petition it appears that as to some of the representations alleged to liavo been-made by the defendant, they are not such as the plaintiff was justified in relying upon, in accordance with well settled rules of law. The representations, if false and known to be false, must be of an existing ascertainable fact, as distinguished from a mere matter of opinion — on which latter the party to whom they are made are not authorized to rely. Of this character we think, are the allegations averred to have been niade, that the mine in question was a good and valuable one, and that the product from it would be so great that after the $15,000 were paid, it would be sufficient to realize enough for the deferred payments, and that plaintiff then would not have to pay anything further from its own means. This could be nothing else than a mere expression of opinion by Rogers, and even if he (Rogers) did not'believe what he said, and plaintiff did, he has no claim against Rogers on account of this. But as a matter of fact, we think the evidence does show that it was a rich and valuable mine, and was worth what was paid for it, and it is not at all sure but that if a proper expenditure had been made by plaintiff, that the opinion of Rogers as to its productiveness would have been realized.

There are other allegations in the petition as to representations made by defendant, which, if shown to have been false, and they were known by him to be false, and which were relied upon by plaintiff, and thereby it was induced to make this purchase to its injury, would entitle the plaintiff to recover damages in an action for deceit, for the injury-suffered. One of these is the allegation that the amount of gold, as shown by the mill returns produced, was the product of but 800 tons of crushed ore from the mine, showing an average of about $50 per ton, while in fact it was the product of over 1400 tons, and did not averge $25 per ton. The other is the allegation as to his representation that he had no interest in having plaintiff purchase the mine from the owners under his option, other than the commission he was to receive from the plaintiff, when at the time he had a contract with the owners of the mine that if he made a sale of it at the price named, his wife was to receive a large sum.

Such representations and conduct, if false, would be as to existing facts, and fraudulent.

But when we examine the testimony submitted to the court on the hearing of the motion, can it be said that the finding of the court was clearly against the weight of the evidence ? Indeed, as the fact of the making of these representations and of all fraudulent conduct, was clearly and explicitly denied by Rogers, it would seem that the burden of proof to establish the fraud was upon the plaintiff. In so far as the alleged representations as to the mill returns are concerned, several of the officers of the plaintiff testified that they were made substantially as averred in the petition.. And we do not understand that Rogers in his evidence denies this. But he does aver clearly that the statements made by him as to this were founded on information given to him by those parties who professed to have knowledge of the matter, and on due inquiry by him, and that he fully and implicitly believed that the representations so made by him were true. If so, no action for deceit.would lie on such representations, for there would be no fraud on his part in making them. But in addition to this,, we do not think that it is shown that the representations so made by him were untrue, or that the quantity of gold spoken of by him as produced from 800 tons of ore was the product of 1400 tons, or of more than 800.

As to the second ground, also we think there was a failure of proof It is true that the same witnesses for plaintiff say that Rogers made the representations alleged as to his having no interest in the contract, and they further say, (and the affidavit of each is as to all of these matters in exactly the same language), that since the happening of the things detailed in the preceding parts of this affidavit, he has ascertained the fact to be that at the time said Rogers' ‘ made the representations set ont, as in the petition, ’ ’ that said Rogers had a contract with the said George Costigan and Emily Costigan, his wife,” made in the name of Rogers' wife, for the purpose of concealing the fact that he had such interest, by which contract, he, Rogers, was to receive a large portion of the proceeds of said sale if effected. _

Harmon, Colston, Goldsmith & Hoadhj. for plaintiffs in error.

D. Thew Wright, for defendant in error.

The only fact here stated is that affiant discovered this to be so. There is no fact stated which shows that any such contract ever existed. There is not a syllable in any of the other evidence that tends to establish the truth of the allegation as to any such contract having ever been made. The judgment or order of the court of common pleas discharging the attachment will therefore be affirmed.

Judge Swing is further of the opinion that the petition of the plaintiff does not state a good cause of action. That it does not allege, as it should have done.that relying upon the representations so made, the plaintiff was thereby induced to make such purchase, and pay the $15,000 cash payment and the other amounts subsequently paid thereon, and that but for such representations the purchase or the payments thereon would not have beenmade.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan’y Term, 1895.)
    Before Swing and Smith, JJ.
    WILLIAM P. ANDERSON v. ELLIS B. GREGG. Assignee, et al. THE OHIO BUILDING CO. v. WM. P ANDERSON et al.
    1. The lien of a vendor on land sold by him, for the unpaid purchase-money, is not lost by the mere taking of collateral security for the payment thereof. If a distinct purpose to preserve, and rely upon the lien is shown, it will remain. And such was the. case here.

      2. Where such is the case, and no conveyance has been made of the land to a vendee, but only a contract made between the owner and the purchaser, by which the latter was authorized to execute to a Building Association a mortgage for not exceeding the value of houses to be erected thereon by the purchaser, who was then to execute to the vendor a second mortgage on the land to be prior to all liens and conveyances except the Building Association mortgages, and the purchaser contracted, without the knowledge or procurement of the vendor, with a Building Co. to erect houses thereon, which was done, and a builder’s lien placed therefor on the land, but the purchaser thereupon assigned the land to an assignee for the benefit of his creditors without having- executed and delivered the mortgage provided for, the land having been before conveyed at the request of the purchaser to a trustee for his benefit, and the same was done with a stipulation by the purchaser and his trustee, that there was to be no other liens prior to that of the vendor thereon, other than the Building Association mortgages, in such case the lien of the vendor is prior to that of the Building Co.
    Error to the Court of Common Pleas of Hamilton County,
   Smith, J.

We state very briefly our views as to the legal questions involved in these very complicated cases, supposing them to be decisive of the rights of the parties.

First — We are of the opinion that when Anderson contracted to sell the 125 lots in Addyston to (xeo. W. Benjamin for $30,000, payable in ten equal installments with interest, and the payments to be secured, 1st, by a second mortgage on the property to be conveyed, (the purchaser- to be allowed to give a first mortgage to cover the cost only of 100 houses to be built thereon by the vendee within one year), and, 2d, bj' certain collateral securities which were afterwards turned over to Anderson pursuant to the contract-, that the provision for the taking of this collateral security did not of itself operate, either as to the lots embraced in the contract, which under a modification of tlie said agreement subsequently made by Anderson and Benjamin, were conveyed to a trustee for Benjamin, or as to those lots the-title to which was retained by Anderson, (said lots never having been conveyed by him), to waive the vendor’s lien held by Anderson thereon, to secure the payment of the purchase money. The doctrine of the law, that the taking of collateral security for the payment of the purchase money,unpaid at the time of the conveyance of the land, is a waiver of the vendor’s lien, seems to rest upon the idea that he thereby intends to look to the other security taken. If, however, a distinct purpose is shown to preserve the lien, it will remain. It seems to us that the original contract and all of its modifications, recognize the fact that this lien for the purchase money is to be retained, and is not -waived.

Hecond — On the agreed statement of facts, on which the judgment sought to be reviewed in case No. 1858 was founded, we are of the opinion that the decision of the court of common pleas, which found that the lien of Anderson on these lots which lie had contracted to sell to Benjamin, but which had not been conveyed by him, was superior to that of the mechanic’s who under a contract with Benjamin alone had proceeded to erect buildings thereon, was correct. Anderson was the owner of the property as between himself and Benjamin, and he was entitled to be paid the amount of his purchase money, before Benjamin was entitled to a conveyance. The mechanic, dealing with the latter, and erecting buildings on the lots (without the knowledge or procurement of Anderson), stood in no better position than-did Benjamin. The judgment of the comomn pleas in this case is therefore affirmed.

Third — The facts in case No. 1577 differ from those in 1858 principally in this:. On January 10, 1800, a modification of the original contract of October 2, 1889, was made by Anderson and Benjamin, by which, among other things, it was provided, that the purchase money notes and the collateral securities were to lie delivered to Anderson, and this was done. Aiulerson was to and did then convey to Benjamin, 46 lots, (none of whieli are in question here), on which Benjamin was to build 88 houses. Benjamin was authorized to give building association mortgages on those lots, for, not exceeding as to each such mortgage, the aggregate, value of the houses upon the lots covered thereby; and was to give Anderson mortgages on all the lots securing his $80,000 purchase money notes, second only to such building association mortgages. After Anderson had received such second mortgages on all of those 46 lots, he was to convey to Benjamin 88 additional lots selected by Anderson, upon which Benjamin should then construct houses, and should' mortgage them back to Anderson, by mortgage second only to building association mortgages like those provided for as to the 46 lots. And when Anderson had received the mortgages on the second batch of 38 lots, he was to convey the remaining 87 lots to Benjamin, who was to mortgage them back to Anderson as the others. These mortgages it was provided were to be delivered before October 2, I860; and were to be “prior to all liens and conveyances except the Building Association mortgages.”

On April 26, 1890, another modification of the contract was made by the parties thereto. The second batch of 38 lots before mentioned was reduced to 25, and those were to be divided into two sub-batches, one of which, of six designated lots, was to be conveyed on receipt of the second mortgage on 22 of the lots already conveyed, and the other 19 (including those in controversy in this case No. 1577,) viz: lots 51, 54 and 90, were to be conveyed on receipt of second mortgages on the remainder of the lots before conveyed to Ware as Trustee for Benjamin. Ware was a party to this, and in the contract it was again stipulated that there were t'ó be no liens prior to Anderson’s mortgage, other than the Building Association mortgages.

On May 28, 1890, Anderson conveyed those three lots to Ware, taking from Benjamin a stipulation reciting that the mortgages had not yet been delivered to Anderson, and if they should not be delivered, that Anderson might proceed as if the deed to Ware had not been made. As a matter of fact, the mortgage was not delivered until after Benjamin liad assigned all his property to Gregg, and it was then worthless.

In the meantime, after the making of the original contract between Anderson and Benjamin, viz: October 2, 1889, Benjamin, on December 5, 1889, had contracted wdth the Ohio Building Company for the construction of 100 houses on the lots mentioned in the contract, and on March 1st, 1890, the Building Company commenced the buildings on the lots in controversy in case No. 1577, and they were completed July 9, 1890, and liens taken out thereon by the Building Company. The principal controversy in this case is as to the rights of Anderson under his vendor’s lien, if he has one, and of the Building Company under its mechanic's lien, if it lias one, to the proceeds of the sale of these lots.

We think that when the building contract was made, December 5. 1889, or when the work under it was commenced, March 1. 1890. Benjamin, with whom such contract was made, was not the owner of the property in any such sense as to entitle the Building Company to a builder’s lien thereon as against Anderson, or against any lien which he then had, and as lief ore stated, we think lie had such a lien. The Building Company could have no greater right as against Anderson, than Benjamin had, unless by the conduct of Anderson he had given the Building Company some' equitable right against him, so as to estop him from denying the validity of such claim. We see no element of that in this case. It is true that after the making of the building contract, and after the work under it was commenced, the original contract between Anderson and Benjamin was modified, but so far as we can see in no way to the prejudice of the Building Company. But we think tliey bad a right to change it as they did, and no conveyance having been made to Benjamin or- his Trustee till long after the work was commenced, the Building Company was bound to take notice, of the condition of the title, and assumed the risk in doing as they did.

Win. Woiiltiiifiton., for Anderson.

Win. Oldham, Coidra.

Nor in our judgment did the conveyance of the lots in question by Anderson to Ware as Trustee of Benjamin, on May 28, 1890, operate to deprive Anderson of his vendor’s lien, or to so place the title in the trustee of Benjamin as to make the lien of the Building Company superior to that of Anderson. It seems to us that these conclusions are sustained by the decision of the Supreme Court in the case of Neil v. Kinney et al., 11 Ohio St. 58; the facts in which, in many respects, are very similar to those in this case.

The conclusion at which we have arrived will require a modification of the judgment of the court of common pleas, giving the lien of Anderson priority to that of the Building Company.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Swing and Smith, JJ.
    CHARLES E. PAGE v. JAMES McCONVILLE. Agent.

      IVrror proceedings ins Muted bij one of several joint parties, the others nol joining therein, when to be dismissed. — -On the facts hereinafter stated, the motion to dismiss this proceeding in error should be granted. All of the parties in the original ac- ■ tion were proper and necessary parties to the proceeding to reverse the judgment rendered below, the reversal of which as to one of said parties would necessarily affect the rights of all of the other parties thereto. No one of such other persons was made a party to this proceeding in error, and more than six months having elapsed between the time of the rendition of the judgment complained of and the time of the filing of the motion to dismiss, the case will be stricken from the docket.
    Error to the Court of Common Pleas of Hamilton County.

      Motion to strike petition in error from the files, etc.
   Smith, J.

This cause was heard in this court on a motion filed on behalf of defendant in error, James McConville, agent, to strike from the files the petition in error, ándito dismiss the case for the reason that the plaintiff in error has failed to make the necessary parties defendants in error.

The original petition in the case, the judgment in which it is sought io have reversed, was filed in the superior court of Cincinnati, on March 2, 1889, by James McConville, as agent of the shareholders of the Metropolitan National Bank, against, Wra. H. Doane, Joseph R. Brown, C. E. Page, The Aetna Telephone Go., and others alleged to be stockholders in said Telephone company. The petition alleged that under and by virtue of the act of Congress approved June 30, 1876, he had been elected and had qualified as the agent of the stockholders of said bank, and that he brings the suit in his own behalf as on that of all the creditors of such telephone company, a corporation under the laws of Ohio. He sets up the recovery of a judgment by him as such agent against the telephone company, the issue of an execution thereon, returned unsatisfied, and that certain persons, naming them, were stockholders in the amount named, and that none of them had paid more than 20 per cent on their stock subscriptions, and that for the payment of the debts of the company they were each liable for the additional 80 per cent, and on their individual liability to an amount equal to their stock subscriptions. Wherefore he prays that the court would ascertain who the creditors of said company are, and the amount due to each of them, and the names of the stockholders in the company, and that they be required to pay the balance due on their subscriptions; and if there is a deficiency of assets to pay the debts, that each stockholder be required to pay his ratable proportion on his stock liability to pay the same.

Answers were filed by some of the defendants denying tlie validity of the claim of the plaintiff, and other persons alleged to be stockholders were brought in, and the case was referred to a referee to hear and determine the issues and state the account. Before the case was decided, and as early as December 17, 1891, an entry was made by the court finding that John F. Pogue was then the duly qualified agent of the stockholders of the bank and the successor to MeConville, former agent, and he was substituted as party plaintiff in place of MeConville, and the action ordered to proceed in his name.

On February G, 1892, Pogue as agent filed a supplemental petition, making a correction as to the amount of his claim, and praying for the same relief as was prayed for in the original petition.

On a hearing had February 20, 1893, the court found that the referee had erred in finding that J. R. Brown was a subscriber for 50 shares of said stock, and that W. H. Doane was a subscriber for 100 shares, and set aside so much of said report, and adjudged that Brown was a subscriber for only 25 shares, and Doane only for 50 shares. To this Page excepted, and on February 21, 1893, filed his motion for a new trial on the ground that the court erred in holding that Brown was a subscriber only for 25 shares and Doane for 50 shares, and for other reasons. This was overruled, and on March 24, 1893, a final judgment was entered fixing the indebtedness of the Telephone Company, determining the stockholders, the number of shares held by each, and the amount that each should contribute to the payment of such indebtedness, and directing each of said stockholders on or before March 24, .1893, to pay into the hands of Province M. Pogue, who was by such judgment appointed a receiver for the purpose of receiving, collecting and distributing' the money to be paid in pursuance of said order, the amounts adjudged against them severally. Page and John F. Pogue, agent, filed motions to set aside this judgment and for a new trial, but tlie motions were overruled April 1, 1898, and exception taken, and a bill of exceptions was then allowed containing all of the evidence heard.

On May 3, 1893, C. E. Page filed in the general term of the Superior Court a petition in error, the caption of which, giving the names of the parties, is as follows: C. E. Page, plaintiff in error, v. James McConville, agent, et al., defendant in error. It alleged the recovery of the judgment against him by the defendant in error in the case wherein the defendant in error was plaintiff, and the plaintiff in error was defendant. No other person was named as a defendant in error. Neither John E. Pogue, agent, Province M. Pogue, receiver, or any of the stockholders whose rights had been adjudicated in tlie case were named as defendants. No summons appears to have been issued, but the petition is endorsed as follows: “Summons waived and appearance entered by defendant in error by Pogue, Pottenger & Pogue, attorneys for defendant in error. “

We think it is entirely clear from the language of the petition in error, that, it was not the intention of the plaintiff in error to make auy one a defendant in error with McConville. No summons in error was issued for any one else, and the entry of appearance was for McConville alone. It does not appear that the attorneys who entered his appear-, anee were authorized to represent any of the stockholders, and as we remember, they claim they were not. They do appear to have represented John F. Pogue, agent; but he was not named as a defendant in error, and they did not enter his appearance. As McConville, as agent, was out of the case long before the rendition of the decree complained of, it would seem that he was not a proper party to the petition in error (Pogue having been appointed to succeed him), and if this be so, there is really no defendant in error before the court, for it can hardly be claimed that where one party has been substituted for another, as for instance where one administrator or guardian is substituted for another, and a judgment is thereafter rendered, it may properly be reversed on a petition in erorr filed against the first administrator or guardian alone.

But if it be conceded that McConville was a proper and only defendant to this petition in error, how does the case stand? He would then be the only person who could resist the reversal of the decree before rendered. That decree, as has been said, was one settling the affairs of the telephone company, and adjusting the conflicting rights of the creditors, and of the stockholders among themselves, with reference to the amount each should pay as a stockholder to satisfy the debts of the corporation. It wras in one sense several, for it fixed the amount to be paid by each stockholder, to a receiver appointed to receive and disburse it. But it was joint in other respects, for if the judgment, entered should be set aside and a new trial granted, it might be found that some stockholders not parties to the error proceeding had been assessed as the owners of too many or too few shares of the stock of the company; and this would require a re-adjustment of the whole account. It was eminently proper, then, and we think it was essential,' so far as the reversal might affect the interests of the stockholders, that they should be parties to the error proceeding, otherwise their rights would be seriously affected by the action of a tribunal in a proceeding to which they were not parties. But if it be said that the plaintiff in error in this proceeding is entitled to have the judgment reversed so far as it affects him, the answer is that it cannot affect him without affecting all the other stockholders, and may injuriously affect the creditors, none of whom are parties. Nor are they represented except by McConville, if he represents any body but himself, which we think he does not. The creditors, after the appointment of Province M. Pogue as receiver, were represented by him. He was not made a defendant in error — certainly no person who represented ihe other stockholders entered an appearance for them, or either of' them, and they were not before the court. How then can their rights be affected by this proceeding?

Alfred Hill, and Ramsey, Maxwell & Ramsey (Robert Ramsey of counsel), attorneys for plaintiff in error.

Pogue, Pottenger & Pogue, (Province M. Pogue of counsel), attorneys for defendants in error.

T. M. Hinkle, attorney for Doane and Brown.

We think this case differs essentially from that relied upon by the counsel for plaintiff in error, Wangerien et al. v. Aspell et al., 47 Ohio St. 250.

In that case the court held that the receiver, who represented the parties not served with process in the error case, being before the court, that it had jurisdiction of the case, and it is intimated that it might have been the duty of some of the stockholders in that case, defendants in error, to bring in the others or require plaintiff in error to do so. In this case none of' them were defendants, and were not represented by any one, and such duty was not imposed upon them. .

We consider it to be the law of this state as settled in the cases of Smithers v. Rainey, 14 Ohio St. 287; Jones v. March, 80 Ohio St. 20, and Burke v. Taylor, 45 Ohio St. 444, that “Statutes authorizing proceedings in error should be strictly pursued and such a proceeding brought to reverse a judgment for or against two or more parties should be commenced against all of them within the two years' limitation (now six months), prescribed by statute in order to confer upon the reviewing court jurisdiction to reverse or modify such judgment or any part of it as to either of such parties. ”

The statute not having been complied with in this case, and more than six months having elapsed after the entry of the judgment complained of and the filing of the motion to dismiss the proceedings in error, the motion will be granted, and the case stricken from the docket.


author: King, J.

text:
    (Sixth Circuit—Ottawa Co., O., Circuit Court
    July Term, 1895.)
    Before Scribner, Haynes and King, JJ.
    THE LAKE SIDE & MARBLEHEAD R. R. CO. v. WILLIAM KELLY.

      Damages for fire set by locomotive to land — What evidence competent. —In an action against a railway company to recover damages caused by fire set by its locomotive,the proof is subject to considerable latitude. It is competent to show, that the fire started in the grass along the track soon after passage of locomotive, and that about that time and immediately after the passage of the locomotive, other fires occurred in that neighborhood. Where the particular locomotive that is claimed to have sec the fire, is not traceable, it may be shown that the railway company was reckless in this particular, and it would be competent to show that every one of the company’s locomotives emitted fire.
    Sec. 8516-39, Rev. Stat., construed — Duty - of railway company under that statute defined.
   King, J.

(orally).

This is a petition in error to reverse the judgment of the Court of Common Pleas of Ottawa County, Ohio. The plaintiff below was William Kelly, and he recovered a judgment against the railroad company for something like $1,400. His action was brought to recover for injury to his growing peach trees, incurred by their being destroyed and injured by fire, which he alleged was caused by the negligence of the defendant company in running their locomotives without being properly constructed and without providing them with proper spark arresters, etc., and not keeping them in a proper state of repair. The record is very long, but the errors that are claimed may be stated to be two — that the verdict is not sustained by sufficient evidence, and the court erred in charging the jury.

First: It is claimed that the verdict is not sustained by any evidence that the fire was caused by the defendant’s locomotive. I can only refer to the testimony of several of the witnesses who testified to seeing the fire in question, that it started in the grass along the right of way of the defendant, and that it was seen after the. passing of the locomotive over the road; that it ran across the premises of the company, and ran across other lands, and then communicated to the lands of Mr. Kelly. The witnesses were permitted to testify that along about the time and immediately after the passing of the defendant’s locomotive, other fires occurred in that neighborhood. It is claimed the latter testimony is incompetent; also that all the testimony taken together does not prove that this fire came from this locomotive.

The manner of proving the setting of fires by locomotives is subject to considerable latitude. It has been held that where the fire in question could be traced to a particular locomotive, that the plaintiff would be confined in his proof to the using of- that locomotive, and that he could not show that fires had been communicated by other locomotives; and as to that one,that it had set other fires about the same time in the same neighborhood, either before or after, along the same road or territory. But where the particular locomotive is not traceable, he may show generally that the company was reckless in this particular, and from this the jury might find the defendant liable. In a case cited to us, reported in the Lawyer’s Annotated Reports, Vol. 16, page 299 (s. c., 144 Pa. St. 461) Henderson, Hull & Co. v. Philadelphia & Reading R. R. Co., the court says “Evidence that fires were repeatedly set out by sparks of unusual size from defendant’s engines on that part of the line where the property was situated is admissible in an action to recover the value of property alleged to have been destroyed by fire set out by the engines which cannot be identified, as tending to show general carelessness on the part of the company, when it has been shown that from the location of the destroyed property and the circumstances of the case, the fire probably originated as alleged; but such proof must be confined to the conditions existing at or about the time of the loss. ’ ’ And the court referring to the case of Albert v. Northern Central R. Co. 98 Pa. St. 316, quote as follows : “Where it appeared that the plaintiff’s loss,if indeed it was caused at all by the defendant’s' negligence, was attributable to the escape of sparks at a particular time from one of two particular engines, both of which were identical, evidence was held inadmissible on the part of the plaintiff in order to prove defendant’s negligence, to the effect that sparks of unusual size had been emitted for some time prior to the time of the fire by defendant’s engines generally.” In the case before us it was conceded that the defendant only had two locomotives, and at this time they were ouly running one of them. We think that it would have been competent to show that every one of the defendant’s locomotives emitted fire; but at the trial, acts of only one of the locomotives were proved, and that was the one in use. We think the verdict of the jury should not be disturbed on the ground that there was not sufficient evidence to support it. The fire started close to the fence, adjoining the company’s right of way, and there is no other source from which that fire could have originated.

In the course of the trial the railroad company sought to' offer evidence to show that the particular kind of spark arrester on their locomotive was in general use on the railroads in the United States. That proposition was argued to us at great length, it being conceded that the judgment of this court in the case of Railroad Company v. McKelvey, decided by the Circuit Court of Erie County, did not cover’ that proposition. We are not prepared to say that that kind of evidence would not be competent, but we. think that this question does not appear in the record, so that we .are not called upon to pass on that question.

The court submitted the case to the jury upon the ques-tion “whether the railroad company had exercised due and proper care in providing, and keeping in repair, such spark ■ arresters as the statute provides for. The statute,being sec. 8516-39, as amended April 18, 1894, requires every railroad, company to use on every locomotive some device or contrivance that will most effectually guard against sparks.

It is argued that if the company show that it used spark arresters such as are in general use on locomotives in the United States, that it is a compliance with the statute. We don’t think that there was any such evidence offered in the case. On page 239 of the record the witness, R. L. Hogg, was inquired of as to the size of the meshes used in spark arresters on the Baltimore & Ohio Railroad twelve years be'fore' — that was excluded. He was also inquired of as to the size of the meshes used by the Lake Shore & Michigan Southern and the ‘ ‘ Big Four’ ’ and the Baltimore and Ohio at this time, to arrest sparks — that was excluded. Then in the deposition of the master engineer of the Brooks Locomotive Works. “State if you know what"sized netting is generally used in locomotives?” This was objected to, and objections sustained. He said in answer, that the standard practice of the Brooks Locomotive Works is 2|- by 2-J mesh to the inch No. 12 Birmingham wire gauge. There are other sizes used throughout the country varying from 4 by 4 to the inch to 2 by 2, and wire gauge varying from No. 12 tolS and 14 Birmingham wire gauge — some roads use one kind of mesh and some another. It is a long answer, but it does not answer the inquiry as to the kind of meshes in general use in the United States.

In the case of the Railroad Co. v. McKelvey (cited above) the court held that the defendant did not have the right to show that other roads used a particular sized mesh. Again the witness was asked to state what road besides the Lake Side & Marblehead used this kind of netting in their spark arresters, and the witness goes on and names a large number of roads; then he names a number of roads that use another kind. We think the court did not err in excluding this testimony. Again he was asked if he knew what standard netting is? He answered, “No, sir; I don’t know that there is any standard.” He was also asked to state what sized net is generally used in the United States? “Positively, I cannot state; but as a matter of common knowledge, I believe that 2\ by 2|- netting is more generally used than any other individual size. There is another deposition, but none of the questions met the question which the defendants claim in this case. I don’t think that the defendant would have the right to prove by its witnesses that “A” road and “B” road and “C” road used the same kind of netting, to show that that kind of netting was in general use in the United States.

It is claimed that the rulings did not give all that was in dispute on the question, and counsel’s argument is that this was a kind of standard netting. The trouble with tire testimony referred to is, that from the testimony of some employees of the company that were at or near the fire, the jury might have found, and they were warranted from the evidence — that of Gouley,in finding that some meshes were about half an inch apart, and from which quite good sized sparks could escape. The engineer testified upon that point, and swore several times that he did not know when these holes in the net were made after the fire. It is claimed that this fire was on the 23rd of August, and on the 2nd day of September the holes were found. Hogg said that after the 23rd of August, and before the 2nd of September, he struck it with a sharp instrument, making holes in the net. The jury might well have found that the holes were there at the time of the fire. The engineer can say nothing about it, except that he is quite sure that they were made after the time of the fire.

Second — As to the charge of the court:

The court was requested to give two requests: First: “The defendant is by law allowed to use fire in the operation of its locomotives, and if it had provided its locomotives with a spark arrester which would prevent the escape of fire and sparks as completely as the best spark arrester or device then known and in general use, and which had been proved by experience to be such; and it was at the time of the injury complained of in good repair, and the locomotive was then properly managed; then it had discharged its whole duty in that regard, and would not be liable for damages to the planitiff caused by fire set by sparks from the locomotive. ”

Second request was: “That the defendant was bound to provide its locomotive with the best spark arrester then known and in general use, and which had been proved by experience to be such, and if it did so, and the same was in good order and repair, and the locomotive was properly •operated at the time, it would not be liable for damages by fire set by sparks emitted from its locomotive while running its road. ’ ’

As to the first of these requests, it requires the jury to pass upon questions not in issue, and which the defendant did not dispute.

The second required the court to say that if the defendant’s locomotive was provided with the best spark arrester then known and in general use, and it was kept in good repair, it would not be liable. It seems to us that that was a stronger statement of the company’s duty than could have been claimed. It would not have been error if that charge had been given. But whether it was error to refuse it depends upon whether the court had given or did give the substance of the law in the charge that it did give.

The court charged the jury on this point: “Railroad companies are in no sense insurers, but in this state are required by statute in the use of their engines, to prevent loss or damage by fire, to place on their locomotive or engines, and keep in good order, some device or contrivance that will most effectually guard against the emission of fire and sparks which would otherwise be thrown out by such engine or locomotive or ears, having regard to the enterprise in which they are engaged, and the objects to accomplish. And the law places no higher or further duty upon them than in this particular; and when they have performed that duty required of them by the statute, they are not responsible for accidental fires caused by the escape of sparks thrown from their engines. ’ ’

Judge Blandin and S. P. Alexander, for Railroad Com-, pany.

T. J. Marshal and Pratt & Wilson, for Kelly.

They were required to place upon their locomotives some device or contrivance which will • most effectually guard against the emission of fire and sparks which would otherwise be thrown out — that being the rule which the statute laid down, it was a proper rule for the court to give to the pry.

Now. the court having given that, we don’t think the court could have been required to have given the charge embodied in that request,for the charge which it had given covered the law on the subject. The charge which it gave covered the rule given by the statute; and it does not make the obligation of defendant so strong as in the request.

We cannot saj, in running over this record, that the court erred in refusing to give these requests.


author: King, J.,

text:
    (Sixth Circuit—Ottawa Co., O., Circuit Court
    July Term, 1895.)
    Before Scribner, Haynes and King, JJ.
    STATE OF OHIO ex rel. CHAS. INGRAHAM v. CARL LEHMAN.

      Township Treasurer — Election and term of office — Appointee to fill vacancy, hoiv long to serve. — Under sec. 1448, Rev. Stat., where a vacancy occurs in the office of township treasurer, the person appointed by the township trustees to fill the office holds not for the uenxpired term, but until a successor is elected and qualified, which, under the statute, is to the next general election thereafter occurring more than thirty days after the vacancy happened.
   King, J.,

(orally).

This ease is submitted to the court 011 a demurrer to the answer. The petition alleges that in April, 1894, a person was elected treasurer of Allen Township, of this county, for a full term of two years, to commence on the 1st day of September, 1894, and further alleges that the person so elected failed to qualify, and thereupon the trustees of that township appointed the defendant to fill the vacancy that was created by the failure of the person elected to accept the office, and that the trustees undertook to appoint the defendant for the full term of two years; that at the April election, 1895, the relator was elected treasurer for said township, claiming the office for the unexpired term, which would result and exist on account of the appointment of the defendant, which, as the petition claims, was until September 1st, 1896. And therefore the relator claims that he should be placed in possession of the office.

An investigation of the law upon that subject discloses the fact that the legislature does not seem to have been very clear in its legislation, and it is not to be wondered at that people who do not follow legislation or law closely would be badly confused upon this subject.

In 1885 the people adopted an amendment to the constitution of the state, which authorized the legislature to provide for the election of township officers in such manner and for a term not to exceed three years as they deem best. In 1886 the legislature provided for the election of certain township officers — three trustees, one .township treasurer and one township clerk. They provided that the trustees should hold office for three years, township treasurer and clerk one year. In 1888 that statute, being section 1488, • Rev. Stat., was repealed and amended, and retained-the provision which refers to township trustees, but provided .'that-the treasurer and clerk should be elected for two years; • and-provides further ‘ ‘ that at the next annual election after the passage of this act, and at the first election of apy new township, a treasurer shall be elected for one year, and a clerk for two years, and thereafter a township treasurer anil clerk shall not be elected at the same annual election. ” That law was passed and took effect on its passage, .which was the 30th of March, 1888, following which provisions of that statute a treasurer would be elected on the first Monday of April following that date for the term of one year, and a clerk for the term of two years. This statute also provided that the treasurer should take his office on the first Monday in September following his election, so that the treasurer elected at the April election,! 888, would enter into his office on the first Monday of September following his election, and hold his office until the first day of September, 1889, when his successor, elected at the April election in 1889, would hold the office for two years, and thereafter the officer would hold the office for two years, and if that statute had not been disturbed, his term of office expired on the first day of September, 1895, and if that statute was still in force, then the term of office of the person elected to fill the vacancy would expire on the first day of September, 1895, and not as argued on the first day of September, 1896. But to go a little further, in 1890, section 1448 as amended March, 1888, was repealed and amended, and the effect of that was to re-adopt all the provisions of section 1448 in exactly the same words, with this addition: “provided, however, that in case of a vacancy in the office of either clerk or treasurer, his successor shall be elected for the unexpired term, at the next annual election thereafter, occurring more than thirty days after such vacancy shall hap-. pen.” That enactment was passed by the legislature on March. 26, 1890, and took effect on the day of its passage, and it repealed section 1448, as amended March 30, 1888, wiping that from the statute books. The provisions of the section which I have just read indicate that an appointee to fill the vacancy of the office of treasurer shall only hold said appointment until the next annual election thereafter, and if that section is still in force, then the claim of the plaintiff is well taken.

I should say in this connection that this statute was passed in March, 1890, preceding the annual election, that it provides “that at the next annual election after the passage of this act, and at the first election of any new township, a treasurer shall be elected for one year, and a clerk for two years, and thereafter a township treasurer and clerk shall not be elected at the same annual election, etc.”

March 7, 1892, the legislature again amended section 1448, in respects not here material. In the section thus enacted they retained the provision in the same language as in The section adopted in 1888, relating to the election of a treasurer, as follows:

“At the next annual election after the passage of this act, and at the first election of any new township, a treasurer shall be elected for one year, and a clerk for two years, and thereafter a township treasurer and clerk shall not be elected at the same annual election.”

Also it contained the provision that in case of a vacancy in these offices, the successor should be elected for the unexpired term. This enactment repealed section 1448 'as amended March 30, 1888. It did not repeal this statute as amended March 26, 1890.

April 6, 1893, the legislature again enacted section 1484. The amendments that it made or attempted to make are not material to this discussion, but it retained the provision above quoted, relating to the election of a township treasurer at the next annual election after the passage of the act who should hold his office for one year, and his term thereafter should be two years, but dropped out of it the provision relating to a vacancy. This enactment repealed section 1448, as amended March 30, 1888, but did not repeal the enactment of 1892, nor that of 1890 in expressed terms.

These references indicate the loose matter in which a great deal of important legislation comes upon our statute books. The intention of the legislature in 1888, as clearly-expressed in the enactment of that year, is that thedreasurer and clerk shall be elected on alternate years. It was the first provision of that kind that had ever been upon .our statute books, and hence it was proper to say in the law, that át the first election after the passage of the act, -the treasurer should be elected for one year and the clerk for two years, and thereafter, they should be elected on alternate years and hold office for two years.

But it is obvious that when that statute came to be repealed and another supplied, that the provision as to the next election was no longer necessary. The election of these officers in alternate- years, having been providfed for and established, it was not necessary that that provision should be carried in the statute any longer, except as to new townships. The last enactment above referred to, that of 18-93, was passed April 6th. As a matter of fact, that day was after the election of that year, and hence it could not go into effect or force until the annual election in 1894, and if strictly construed according to its terms, it provided for the election of a treasurer at the April election, 1894, to hold office for one year, and thereafter that he be elected to hold office for two years. That changed the alternation as provided in the act of 1888, and in effect legislated out of office the treasurer elected in 1893, who took his office September 1, 1839, to hold for the term of two years. That was also the effect of the legislation in 1892, and likewise in 1890.

If that construction was adopted, the relator in this case would be entitled to his office, either under the provisions of this section, as passed in 1890 and 1892, standing unrepealed, or under the provisions of sec. 11 of the Revised Statutes, and which latter section, we hold, covers this case, if sec. 1448 did not. But we are not disposed to stop -with this construction of the statute.

It is clear from a reading of these different enactments that the legislature had intended’ at these various times to amend sec. 1448, in reference to matters not at all pertinent to the question here involved, and by inadvertence they have retained in this enactment the language of the original amended sec. 1448, passed in 1888, and have npt intended to change the time of the election of the county treasurer, or to legislate out of office any of those officers filling the same. We think, therefore, that the term of the election of the township treasurer has not been changed since the act of 1888.

Following out the provisions of that statute, we find thafi a treasurer should have been elected at the April election, 1888, for the term of one year, to take his office on the first Monday of September, 1888. His term of office would therefore expire on that day of 1889, and his successor should have been elected at the April election, 1889, and for a full term of two years. His term of office would expire in September, 1891, and the term of office of his successor would expire in Spetember, 1893, and the term of office of his successor would expire in September, 1895. The person elected in 1894 was not according to this reasoning properly elected, but it seems that the election has been treated on all hands as valid; the incumbent of the office at that time, it seems, vacated it, and thereby would have created a vacancy, had one not otherwise existed. The appointment by the trustees was regularly made, yet that part of their appointment which undertook to appoint the defendant for the term of two years was and is irregular. They could not appoint for a longer time than a vacancy existed, and, as we have already seen, a vacancy could exist only until a successor was elected and qualified, which should be at the next annual election thereafter occurring more than thirty days after the vacancy happened; and hence, the relator having been chosen by the qualified voters of the township to fill that vacancy, is entitled to the office, and he is entitled to. hold it for the balance of the term, and the term, as we have already seen, expires September 1, 1895, at which time a treasurer, who should have been elected at the April election, 1895, will be entitled to hold the office for the term of two. years thereafter.

G. I. TqvJc, for relator; T. M. Ritchie, for respondent.

We have made this opinion thus explicit, because of the. evident confusion in the language of these various enactments.

The judgment will therefore be in favor of the relator,, and against the defendant, ousting him from the office he now holds.