text:
    GAS AND OIL LEASES WITHIN THE STATUTE OF FRAUDS.
    Circuit Court of Cuyahoga County.
    John B. Coffinberry v. H. W. Blakeslee.
    Decided, May 18, 1908.

      Conflict of Laws — Statute of Frauds — Presumption that Interpretation of Statute of Another State same as in Ohio — A Partnership Agreement to deal in Oil and Gas Leases Must he in Writing — Statute of Frauds Complied With if all the Terms of an Agreement Appear in Signed Correspondence.

    1. Where it is shown that the statutes of a state in which a contract was made are the same as the statutes of Ohio, it will be presumed, in the absence of any evidence on the subject, that the decisions under those statutes are the same as the decisions in Ohio.
    2. In Ohio a partnership agreement made for the purpose of operating in oil and gas leases is within the statute of frauds and must be in writing.
    3. Several writings, though made at different times in the form of letters, may be construed together, for the purpose of ascertaining the terms of a contract required, by the statute of frauds, to be in writing.

      Whitney, Johnson, McGaslin & Gannon, for plaintiff.

      W. C. Ong, contra.
    Henry, J.; AVincii, J., and Marvin, J., concur.
   In this appeal the plaintiff seeks an accounting from defendant of profits of an alleged partnership formed with him about January 10, 1901, to deal in oil leases in and about Beaumont, Texas. Some agreement was admittedly entered into between the parties at Fort Worth, Texas, about that time. The plaintiff, Coffin-berry, was sojourning in that city in the employ, as right-of-way agent, of a Cleveland traction syndicate, who were then building an electric road in Texas. The defendant, Blakeslee, a lawyer and oil operator, was in Texas on a hunting trip, and a day or two after the great oil strike in Beaumont they met at a hotel or boarding house in Fort Worth. They had had previous dealings together. Plaintiff then and there called to defendant’s attention a newspaper report of the Beaumont oil strike. After talking the matter ovex', defendant started promptly for Beaumont, pursuant to an agreement which plaintiff claims provided that defendant was to give his whole time and attention to the business, receive a salary of $5 a day and expenses, and furnish three-fourths of the funds necessary for acquiring oil leases and for carrying on the business of the partnership; plaintiff on his part to furnish the other one-foxix'th -of the funds of salary and expenses, and the profits axid losses of the partnership to be divided between them in the ration of three-fourths to defendant and one-fourth to plaintiff.

Defendant’s version of the understanding is that because of certain inducements held out to him by plaintiff in respect to a division of expected commissions from a real estate deal connected with the traction enterprise, he offered to let plaintiff in with him to the extent of a quarter interest in such leases as he might thereafter acquire in .Beaumont, axid think proper to share with plaintiff.

The plaintiff insists that the partnership arrangement in regard to dealing in oil leases, had no connection whatever with the traction real estate deal. The latter, he claims, was as follows:

Part of a certain property known as the Handley farm was wanted by the traction company for park and other purposes in case certain pending legislation affecting that feature of their business should become a law. In order to get what the traction company required, it was necessary to take the whole farm, and plaintiff expected that the residue, which would be rendered very valuable in case the traction company used the part it required in the manner contemplated, might be so handled as to realize to hixu a commission of $800 or $1,000 and possibly other profits in addition thereto, through the organization of a real estate company and the sale of lots.

In talking the mattero over in Fort Worth with defendant, plaintiff sought and obtained the latter’s permission to use his name as that of the real purchaser, whom plaintiff represented in his negotiations for the acquisition of the ITandley farm. This ruse was to be resorted to, to prevent the seller from raising his pricje, as it was expected he would do if he were informed that the traction company was the purchaser. The plaintiff actually took an option in defendant’s name, but through failure of the pending legislation the traction company permitted it to lapse. Later on, however, it was renewed in plaintiff’s name and the property taken over by the traction company. Plaintiff was at that time working on a salary for the traction company, and as now appears, he never realized his expectations of profit from the ITandley deal. So at least .we find from ail the evidence.

Defendant, within a month or two after arriving at Beaumont, acquired a number of valuable oil leases out of which over .$25,000 profit was derived, lie kept up, meanwhile, a constant correspondence with plaintiff, the whole of which, taken together, is very voluminous. It is written in a very friendly, intimate and colloquial style, intended evidently to be humorous. It became evident, however, that as soon as defendant’s large success; was assured, he did not wish to divide with plaintiff on the basis then and now claimed by the latter. Minch is said about the fading prospects of profit from the Ilandley deal, and defendant intimates more and more pointedly that he intends' that plaintiff’s participation in the profits of the oil deals shall depend very largely on his payment of at least $400 to defendant, being one-half of the expected profit from the Handley deal. Finally on April 9th, defendant plainly exercises his undoubted right of terminating the partnership unequivocally. In the meanwhile, however, on January 13, 1901, at the very inception of the enterprise, defendant had written to plaintiff, expressly recognizing the existence of some agreement between them respecting his dealing in oil leases, for he speaks of enlarging their enterprise so as to include dealing in vacant property, and says “Of course you would be in that same as oil leases,” etc.

On January 17, 1901, defendant writes to plaintiff saying: “Send me a draft at once for $625. I will sendyou a check at once in return for $500 and a receipt for $125 on all of your one-quarter costs and expenses. ’ ’

On February 9, 1901, defendant writes “We couldn’t hire a man to do what I did yesterday and today for $50 and I get $10 for it, ’ ’ referring plainly to liis per diem of $5.

On February 19, 1901, defendant wrote a letter clearly recognizing the terms of the original agreement as claimed by plaintiff, except the Handley feature, which he still insists was a part of the agreement, but which in the aspect it had then assumed, he accepts; In his usual whimsical vein the defendant writes of an alleged meeting between himself and the field man, who was none other than himself, as the entire correspondence clearly discloses. He says, “We held a meeting at my office late last night and the field man said we were probably being worked some on that commission, but as the chances are so strong that there won’t be any commission to divide, that he would move to have the report accepted and spread upon the minutes of the meeting, also on the books of the company, and that our share be accepted as offered, viz: $400 out of the $886 and that we declare the original compact as to your having one-fourth of the profits, if any, and stand one-fourth of the losses on all deals, commissions, etc., made by me in this field, and that we furnish you as soon as convenient a receipt for the $125 you have paid in and a statement of the terms on which you are in, so that nothing can be construed to tie up, hamper or hinder the free and full control of all business by our most worthy and competent field man, whose name modesty forbids me to mention. ”

As a matter of fact, plaintiff’s letters to defendant, to which this was the reply, contained no outright offer to pay defendant $400 at all events, but only an offer to pay $400 out of the $886, commissions which plaintiff expected to realize out of- the Handley deal.

On February 11, 1901, plaintiff had written defendant:

‘ ‘ I have paid $100 down on the Handley farm and am having abstract made out and if bill becomes a law will close at once. Will take deed in my own name as trustee. The company will want about 200 acres of it. "Will have to let that go at cost, expect to get $2 per acre commission on balance of 440 acres. ’ ’

On February 16, 1901, plaintiff wrote:

‘ ‘ I had concluded some days since to allow our field man $400 out of the $886 if he made an early report and made it full.”

This was the proposition then which the defendant accepted and in connection with which, as thus understood, he re-affirmed the original compact, which his letter shows that now, at least, both parties in all respects understood alike.

It would be profitless to review the entire correspondence in detail here. Suffice it to say that it does not in any particular disagree with the statement thus made of the business relations of the parties.

The defendant’s explanation of this letter in his oral testimony, on cross-examination, is as follows:

“Q. We held a meeting at my office late last night, and the F. M. said we were probably being worked some on that commission, but as the chances are so strong that.there won’t be any commission to divide that he would move to. have the report accepted and spread upon the minutes of the meeting, also the books of the company and that our share be accepted as offered, namely, $400 out of $886. What company was that? A. There was no one tKerc but myself. I was there as my field man and considered some letter that he had probably written, in which, he might have offered the $400.
“Q. At that time you had gotten Mr. Coffinberry’s letter of February 3 6th which seemed to have satisfied you in regard to the street railroad matter, hadn’t you? A. I had gotten that letter, and I considered it in a favorable light.
1 ‘ Q. So you go on and say that at that meeting this further took place, ‘And we declare the original compact as to your having one-fourth of the profits or any, and stand one-fourth of the losses of all the deals, commissions, etc., made by me in the field.’ Was that the original compact that was made? A. No, sir.
“Q. Why didn’t you say so in this letter then? A. I meant by that, that according to the original compact of one-fourth and expenses — T meant if he would give me that $400 it would be satisfactory and I’d declare him in on the whole thing according to the original compact that he was in on the ground floor. I was willing to extend it to all of them according to the compact we made as to what he was to have.
‘ ‘ Q. So you intended in this letter of the 19th to advise Mr. Coffinberry that he was in with you fpr a fourth of all the deals you had made? A. I intended to say I’d let him in, but later I said if he paid over that commission — in the same letter. I wanted him to pay something on what he owed me. I was trying to get him worked up to that.”

This explanation does not appeal to us as at all satisfactory. The letter, jocular though it is in its style, is clear enough to. show with what had previously been written by the parties to one another, that however doubtful the realization of any commission whatever from the Handley deal .might be, defendant was content to accept $400 .out of the $886 which plaintiff still hoped to realize therefrom, and with that solution of. their differences the original agreement was re-affirmed, namely, that plaintiff shoxild have one-fourtli of the profits if any, and stand one-fourth of the losses on all deals, commissions, etc., made by defendant in the Beaumont oil field, the receipt of $125 to apply on plaintiff’s share of defendant’s salary of $5 per diem and other expenses being expressly acknowledged. • This re-statement of the understanding of the parties, to our minds, absolutely excludes any such limitation thereon as defendant now claims, but makes their partnership agreement applicable to all of the defendant’s dealings in oil leases in the oil field in Beaumont.

The testimony produced for the first time in this court when taken in connection with the facts as disclosed by the letters of the parties, does not suffice to discredit the plaintiff’s claims in this behalf.

The deposition of the witness Price can not be allowed to contradict the statements and implications of defendant’s letter of February 19, wherein he wrote, in addition to what has already been quoted:

“You remember Price mentioned 100 acres south of the railroad at Amelia. Our astute field man made a note of the name of the owner, namely, W. J. Collier, and said to us that he would have that piece of land, and the way to get it was by a bluff that he would not test the land out there unless they put in enough worth while. Those tactics worked, nothing else would. ’ ’

The plaintiff’s testimony, in reference to meeting Mr. Price and the conversation that ensued is thus entitled to credit in preference to the testimony of the defendant and Price himself denying the same and giving a wholly different version of plaintiff’s statements. So also with respect to the deposition of one of the members of the brokerage firm of Ross and Newland to the effect that they never had any difficulty with Mr. Blakeslee and that Mr. Coffinberry never helped to- straighten out any such difficulty. The documents in the case strongly indicate the contrary :

“Beaumont, Texas, April 25, 1901.
Mr. Í>. S. Ross and Mr. Newland :
“If yoii will bring me a customer that will take my 99-acre lease and pay me $15,000 in cash net, and bring said customer at five o’clock April 26, 3901, I will assign him all of my right, title and interest in the same for the said $15,000 net, with no commission to you. I will give the purchaser until noon Saturday to approve abstract if 10 per cent, of purchase money is paid on or before five o’clock Friday evening, April 26th, to bind bargain.
“If you can not find such purchaser by the time stated, then this deal is off and everything is even and settled -between us and you have no claim for commission or other claim against me.
“ (Signed) H. W. Blakeslee,
“D. S. Ross,
“W. V. Newland.
“4-26-1901.
“Received of TI. W. Blakeslee, $2,500 in full of our commission on the deal'for the above property this day made, and in settlement of all claims on him.
“D. S. Ross,
“W. Y. Newland.
“Witness to signature,
“ J. B. COEEINBERRY.”

On the whole evidence we reach precisely the same conclusion on the issues of fact as did the court below, namely, that the plaintiff is entitled to the accounting that he asks and to a decree awarding him one-fourth of the $25,000 and upwards of profits realized by defendant.

The only question of law in the case concerns the application of the statute of frauds to partnership agreements for the purpose of dealing in oil leases, or other interests in land. It is perhaps true in Ohio, contrary to the weight of authority in other jurisdictions, that a partnership agreement for dealing in oil leases or other interests in land, must, under our statute of frauds, be in writing. The Texas statute is conceded to be like our own, and in the absence of evidence as to its judicial construction in that state, we must presume that it would be construed in accordance with Ohio decisions. Watson v. Erb, 33 Ohio St., 35, seems to be in point, and in the opinion of the court by Johnson, C. J., it is said at pages 48-49 that:

“A parol agreement that another shall be interested in the purchase of lands or the declaration-that he -buys for another, where no money is advanced, comes directly under the statute of frauds. ’ ’

But it is also held in Ohio that:

“A contract falling within the statute of frauds may be enforced, if plainly made out in all its terms, from any writing of the party, or even from his correspondence,” although “it must all be collected from the writings, verbal testimony -not being admissible to supply any defects or omissions in the written evidence.” Williamson v. Hall, 1 Ohio St., 190; McGoveney v. State, 20 Ohio, 93.

And in Thayer v. Luce, 22 Ohio St., 62, the first two paragraphs of the syllabus are as follows:

“ 1. Several writings, though made at different times, may be construed together, for the purpose of ascertaining the terms of a contract required, by the statute of frauds, to be in writing and signed by the party to be charged therewith.
“2. If some only of such writings be so signed, reference must be .specifically made therein to those which are not so signed but it each of the writings be so signed, such reference to the others need not be made, if, by inspection and comparison it appear that they severally relate to or form part of the same transaction. ’ ’

In the same ease it was said by McIlvaine, J., at page 75:

“It is well settled that a writing, relied upon to take a ease out of the operation of the statute, may be executed after the verbal agreement is complete and at any time before action brought.”

The quotation I have made from the correspondence of the parties in the case before us, clearly show that an agreement was entered into between them, and that the terms thereof were substantially as claimed by the plaintiff. The evidence shows that the plaintiff never received any commission or profits out of the Handley deal, so that we need not consider whether or not a division of such profits was a part of the partnership agreement with respect to oil leases. If no profits were made, it is evidenced that defendant acquiesced in plaintiff’s statement, clearly made in the course of the correspondence, that none were to be divided.

The alleged want of equity in plaintiff’s claim, in that he contributed but $125 towards the expense of defendant’s very large business operations at Beaumont, is of no moment, in view of the defendant’s admission, in his testimony, that it was practically one-quarter of the whole amount which was required to be advanced before the business became self-sustaining.

The evidence does not support the claim that this contribution of $125 was intended by plaintiff, or received by defendant, as applying only to a part of defendant’s dealings in oil leases, .and even if the memorandum in writing sufficient to satisfy the statute of frauds could not be gathered from the correspondence of the parties, this contribution of $125 towards' the expenses of the enterprise would entitle plaintiff to relief in equity.

On the whole case we find the equities with the plaintiff and he may take a decree as in the court below.


source: Caselaw Access Project

license: Public Domain

text:
    DEFENSE OF PAYMENT IN FORECLOSURE SUIT.
    Circuit Court of Cuyahoga County.
    Mary J. Shafer v. W. E. Ames.
    Decided, June 8, 1908.

      líes Acljuclicata — Decree Finding Conditions of Mortgage Performed is a Bar to Action on Note.

    Where the holder and assignee of a mortgage note and mortgage brings suit for foreclosure of the mortgage in the county where the land is situated without asking for personal judgment, and the defendant by answer and cross-petition asks for cancellation of both note and mortgage on the ground that the amount of the note and mortgage has been paid to an agent of the plaintiff, a decree of the court finding that the conditions of the mortgage has been performed supports a plea of res adjudieata when interposed as a defense to an action on the note begun in another county.

      Burton & Dale and II. G. Galm, for plaintiff in error.

      E. E. Eerblcersman and Dorr E. Warner, contra.
    Henry, J.; Wincii, J., and Marvin, J., concur.
   Tlie parties to this proceeding in error stand as they stood below. There the defendant’s motion for judgment upon the pleadings was granted. Our attention is called to the fact that this motion was interposed before plaintiff was in default for reply to the supplemental answer, and that such reply was filed before the motion was granted. We have, therefore, examined the reply and find that the denial therein contained of the former adjudication pleaded in said supplementary answer is but a mere conclusion of law and does not imply a denial of the facts alleged in said answer; hence the latter is taken as true. The question, therefore, is whether it states a defense to the action.

The subject-matter of the action was a promissory note which was one of a series of notes secured by mortgage given by the defendant to O. C. Pinney, and by him assigned to one Shurtleff. This assignment was noted on the margin of the record of the mortgage in the recorder’s office of Geauga county, where the lands are situated. Shurtleff in turn assigned the notes and mortgage to the plaintiff in this action, who failed to record the assignment of the mortgage or to notify defendant of her ownership thereof.

Subsequently the defendant paid the entire mortgage indebtedness to Pinney, who died without having fully accounted to the true owner. _Plaintiff here brought her action in Geauga county for the foreclosure of the mortgage, in respect of the portion of the mortgage indebtedness, payment of which she had failed to receive, but did not ask for personal judgment. Defendant filed an answer, asking by way of affirmative relief for the cancellation of the mortgage and notes, and subsequently filed an amended answer and cross-petition, setting up among other things, that Pinney and another, as agents for plaintiff, had received payment in full of the mortgage indebtedness, and renewed his prayer for cancellation of the mortgage and notes Plaintiff, meanwhile, had sought to dismiss her petition for foreclosure and filed what she called a special answer in which she attempted to save the jurisdictional question. The Geauga •County Court of Common Pleas thereupon entered a decree against her for the cancellation of the mortgage, and specifically found therein that the conditions of the mortgage had been performed.

From the record of the Geauga county ease as set up in the supplemental answer here it is apparent that the court there was right in continuing to exercise jurisdiction over the plaintiff. It further appears that the conditions of the mortgage, which were found to have been performed, included the payment of all the notes secured thereby. The omission from the decree of any express cancellation of those notes was probably owing to the fact that equity will not afford such relief as amounts only to a defense in law against the notes themselves, if sued upon, but we may and must presume 'from the terms of the decree that one of the issues adjudicated adversely to plaintiff was the agency for her of the person or persons to whom defendant had made payment.

It follows that- although it may well be time that she became the owner for value of the note here sued on before its maturity in such wise as to have been able to maintain an action at law thereon, notwithstanding the payment of the mortgage indebtedness had been so made as to extinguish the lien of that instrument, yet her right of recovery upon the note is precluded here by reason of the adjudication of its payment by the G-eauga County Court of Common Pleas.

The judgment below is affirmed.


text:
    LIABILITY FOR INJURY TO AN EMPLOYEE OF ANOTHER.
    Circuit Court of Richland County.
    Martha M. Snyder, Administratrix of the Estate of Howard S. Snyder, Deceased, v. The American Cigar Company.

    Decided, October, 1908.

      Master ancl Servant — Although in the General Employment of One, a Person May he Servant of Another — Trials—A Verdict for Defendant Should he Directed When Plaintiff’s Evidence only Shotos Negligence of One Who Would he a Fellow-servant, -if the Other Allegations of his Petition are True.

    1. A workman, who is in the general employment of one person may become, by adoption, the employee also of another, where that other person has the right of control of the workman, in his employment.
    2. Where in an action for wrongful death, plaintiffs petition and reply seeks to establish the relationship of master and servant, and makes allegations of negligence on the part of the employer in that he failed to furnish .a ■ safe place to work and employed a servant whom he knew or should have known to be incompetent; and plaintiffs evidence simply shows negligence on the part of one who would be a fellow-servant under his theory of the case but no negligence on the part of the employer, it is the duty of the court to direct a verdict for the defendant.
    3. Where plaintiff seeks to recover upon the theory that the relationship of master and servant existed, but fails to introduce any evidence which would make defendant liable as an employer, it is of no moment that defendant in his answer has made no reference to the relationship of master and servant.
    Henry, J.; Winch, J., and Marvin, J., concur.

      Affirmed without opinion, Snyder v. American Cigar Co., 81 Ohio State, 561.

   (Sitting by designation as judges of the Fifth Circuit.)

The action below, commenced originally to recover damages-for personal injuries sustained by Howard S. Snyder, since deceased, seems from the allegations of the petition to have been converted into or supplanted by an action under favor avowedly, of Sections 6134 and 6135, Revised Statutes, for death by wrongful act, in which from it was brought to issue and tried, with the result that at the close of the plaintiff's-evidence, and on motion by the defendant, a verdict in the latter’s favor was directed by the court.

The petition further alleges that plaintiff’s intestate was in the employ of the defendant below, performing work as a carpenter in putting in automatic gates at the entrance to the elevator of the cigar company on the several floors of its building. While thus engaged, it became necessary for him to lean over one of the gates so that his- head was in the shaft, and the descending elevator took him unawares and caught his head between the floor and the gate on which he was working injuring him so that he finally died from his injuries.

The negligence complained of is the carelessness of the elevator operator in failing to stand in the proper place for controlling and stopping the elevator, from which place, had he stood there, he could have seen plaintiff’s intestate in time to have prevented the injury; and it is charged that the defendant below was negligent in that it employed this operator, knowing him to be incompetent, or having'the means by the exercise of or dinary care of knowing such fact.

It is furthermore charged that the defendant was negligent in not providing plaintiff’s intestate with a safe place to work and in failing to discontinue the use of the said elevator while the work was in progress-.

The answer alleges contributory negligence and avers that plaintiff’s intestate was not in the general employ of the American Cigar Company, but that he was performing’ the work in question as the employee of a carpenter contractor named Bloor, with whom the- defendant had contracted for the performance of the work.

The reply admits that plaintiff’s intestate “was employed by said Bloor generally but denies that he was wholly under the control of and in charge or said Bloor while said work was being performed, and at the time he received the injuries complained of; but avers the fact to be that said Bloor was only present a few hours, and that when iSRe work was begun, and then absented himself, leaving the deceased in charge and with the said defendant cigar company, supervising and controlling the conduct of deceased and the mode and manner of doing the work, and that the plaintiff Snyder followed the suggestions, direction and control thus made and exercised by defendant. ’ ’

It thus appears to have been the purpose of the pleader in drafting the plaintiff’s petition and reply to set up the existence of the relation of master and servant between plaintiff’s intestate and the defendant, and to count upon the rights and duties growing out of that relation; and it is indeed possible, under the decisions in this state, for one who is in the general employ of one person to become by a sort of adoption the employee also of another; the right of control being one at least of the tests applied to establish the existence of the relation of master and servant under these special circumstances. McCafferty v. Dock Co., 11 C. C., 457.

It seems moreover to have been defendant’s purpose to deny and disclaim the existence of the relation of master and servant as between the plaintiff’s intestate and the American Cigar Company, and it is said that the motion to direct a verdict was argued and sustained upon the ground of contributory negligence, disclosed as a matter of law in plaintiff’s evidence. It is evident from the argument and briefs furnished us by defendant here that such is still their theory of the ease.

There may indeed be enough revealed in the testimony offered on behalf of the plaintiff below to meet and neutralize the presumption that her intestate had exercised ordinary care for his own safety and to put the burden upon her of showing affirmatively that her intestate did in fact exercise such care. He knew, of course, that the ordinary use of the elevator had not been discontinued, and he knew that the only means of avoiding danger to him whenever any part of his body was in the path of the elevator was that he should see it coming or that the elevator operator should observe him there in the way of its approach and either warn him to get out of the way or else stop the elevator; Under the circumstances he had no right to depend wholly upon the operator in this behalf, for the law imposed an affirmative obligation upon him to look out for his own safety. He knew that the elevator was above him, because the cables by which it was suspended would have been in plain view before him had the elevator been underneath, whereas in fact, and because the elevator was above him, those cables were whoily out of his view. Other cables -at the side of the shaft, were equipped with certain buttons which changed their position slightly when the elevator was moved. These cables and buttons (though some of the cables were partially boxed up) were within his view, had he looked, and the buttons were situated but a foot or two from his head when he was injured. The elevator moved very silently and plaintiff’s intestate failed to either hear or see any signs of its approach until it caught him.

"Whether the question of his contributory negligence ought, under these circumstances, to have been submitted to the jury, is the question we are asked to decide, and a great number of similar eases, pro and con, are cited to us. We do not, however, find if necessary to pass upon this question, because we consider the ruling of the court below to have been correct, independently of contributory negligence. At the close of the plaintiff’s evidence the court was called upon to pass upon and decide whether the plaintiff, upon the theory of her case presented by her pleadings, had made out a case for the jury.

If the relation of master and servant existed, as manifestly contemplated by the theory disclosed in her pleadings, it was not enough to show merely that the elevator operator was negligent, for that would be, as in the case of McCafferty v. Dock Co., above cited, merely the negligence of a fellow-servant. It was necessary then to prove one of the other allegations of negligence in the .petition, namely, that the elevator operator was incompetent, or that the defendant furnished an unsafe place for plaintiff’s intestate to work, and that, actually or constructively, the defendant knew the plaintiff’s intestate was ignorant of the source or sources of danger aforesai'd. It is intimated that the petition is not quite perfect as regards its allegations of notice or want of notice; but we view that as cured if the evidence supplies such' defect. We have scanned the bill of exceptions carefully for any testimony in support of these allegations of negligence by the defendant. "We have found not a shred of evidence of the elevator operator’s alleged incompetency, although there is abundant evidence of his carelessenss on this particular occasion. Neither is there any evidence whatever of any negligence by defendant in failing to furnish a safe place to work in any respect whereof plaintiff’s intestate was not fully apprised.

The work was no doubt dangerous, but plaintiff’s intestate, knowing all there was to know about his environment, in law, assumed whatever risk attached to his accepting employment amid such surroundings.

It is of no moment .that the defendant’s theory of the case excludes the existence of the relation of master and servant in the premises. An answer may indeed be looked to when the averments of the petition are deficient and the admissions of the answer supply that deficiency. But where two antagonistic theories of the case are presented by the pleadings of the opposite parties, the plaintiff must recover, if at all, upon the merits of his own theory and the sufficiency of his own allegations and proof, not upon any weakness in his adversary’s position. This, of course, follows the rule that the burden of proof is upon the plaintiff.

In this ease, holding as we do, that the plaintiff’s evidence is insufficient to establish a prima facie case of liability in respect of any of the negligence complained of, the court below was justified in directing a verdict for the defendant, and such was its duty, upon motion properly interposed.

The judgment below is affirmed.


text:
    PROVISION FOR. DIVISION OF TOWNSHIP FUNDS VALID.
    Circuit Court of Summit County.
    Township of Northfield et al v. Village of Macedonia.
    Decided, April, 1907.

      G(institutional Law — Township Funds May he Divided Between Township and Newly Oreated Corporation.

    The act of March 28, 1906 (98 O. L., 129), providing for the division of township funds between the township and a village which has been created out of a part of such township, is a valid exercise of the legislative power and is constitutional.

      Grant, Sieber ¡<& Mather, for plaintiff in error.

      Stuart & Stuart, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This proceeding in error involves the constitutionality of the act of March 28, 1906 (98 O. L., 129), providing for the division of township funds when a village is created out of part of such township. It is contended that it undertakes to confer corporate power by special act; that it assumes retroactively to create“a right and to impose an obligation thereof; and that it works a diversion of public funds already devoted to specific purposes.

Some of these contentions proceed upon the theory that the political sub-division of the state arc entitled inter se, and as between themselves and the state, to the constitutional rights of private persons. In truth, however, they are to be regarded, in these relations, merely as political agencies of the state, and, as such, within the scope of the authority of the Legislature to deal with them as it pleases, subject to such constitutional limitations as specifically restrict the exercise of such authority. City of Worcester v. Worcester Consolidated Street Railway Company, 196 U. S., 539.

The case of State, ex rel, v. Board of Education, etc., 22 C. C., 224, although correctly decided, should, we think, be- distinguished from the case at bar and should not have been assimilated to Rairden et al v. Holden, Admr., 15 O. S., 207, relative to the impairment of the vested rights of private persons by retrospective legislation. We hold, also, that Howell v. Fry, Admr., 19 O. S., 556, relative to the right of jury trial, has no application to the case before us, inasmuch as the statute here in question provides substantially for an equitable accounting between political subdivisions of the state before a tribunal specially clothed with appropriate jurisdiction, to the end that a proper division of public funds in hand and in course of collection may be made between them. The parties to such a proceeding and the nature of the proceeding itself, alike negative the application of the constitutional guaranty of jury trial.

Nor is this act a special act. It applies to any township and village in the state, which being co-contributors through their respective tax-payers to a common fund actually existing or accruing, in the hands of the township treasurer, have separated one from the other within the designated period. The time limitation is exactly suited to the accomplishment of this purpose, viz: the distribution of current funds between separating subdivision of the state, and -it is not framed with any apparent intent or effect of making an unconstitutional classification of villages and townships. .

Nor does this act violate Section 5 of Article XII of the Constitution, providing that a tax shall' be applied only to the distinctly stated purpose for which it has been lawfully levied. It specially provides that only “a proper division of the township funds ’ ’ shall be made. Hence it forbids the division of the proceeds of any tax levied for a township purpose unless the laws provide for a correlative village purpose, to which a proper part of it may still be, applied in the village which has been created from the township, and which helped to produce the fund. It is not to be presumed that the probate judge will administer this act in violation of the Constitution, since it may be carried out in consonance therewith.

We are not unmindful of the difficulties and doubts that arise respecting the constitutionality of this act. But we heed the rule, expressed by our Supreme Court, that unless a law is clearly and palpably irreconcilable with the Constitution it should not be so declared. ,

The judgment below is affirmed.


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    ABATEMENT OF ACTION TO CANCEL CERTIFICATE.
    Circuit Court of Summit County.
    State of Ohio, ex rel Henry M. Hagelbarger, Prosecuting Attorney, v. The New York Life Insurance Co.
    Decided, April, 1907.

      Actions — May be Abated by Lapse of Time.

    Where the only relief which plaintiff could, in any event, have had is rendered obsolete by the lapse of time since the petition was filed, the petition will be dismissed.

      F. S. Monnett and Musser, Kohler <&. Moilinger, for plaintiff in error.

      Garfield, Howe ¡c&. Westenhaver, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This cause came on to he heard upon several motions of the defendant, one of which is in substance a plea in abatement founded upon the proposition that the only relief which plaintiff could in any event have had is rendered obsolete by the l^pse of time since the petition was filed.

The defendant is a foreign corporation which, at the time of the filing of the petition herein, was licensed by the certificate of the superintendent of insurance, issued pursuant to Sections 284 and 3604, Revised Statutes, to transact the business of life insurance in Ohio. The former section provides that such certificates so issued shall expire “on the first day of April next after they were issued.” The defendant’s certificate in force at the commencement of this proceeding expired April 1, 1906.

The object of this proceeding is to oust the defendant from doing business in the state and to appoint trustees to wind up its unfinished business in Ohio. The alleged grounds for this relief are substantially that its said certificate was obtained by false and fraudulent statements to the superintendent of insurance.

Inasmuch, however, as the certificate in question has expired, the ease falls within the principle announced in Security Mutual Life Ins. Co. v. Preqitt, 200 U. S., 466, the syllabus whereof is as follows:

"Where in a suit to cancel the revocation of an annual permit to do business in a state, the permit has ceased, since the writ of error was filed, to have any effect, and the plaintiff in error could not do business, even if successful without obtaining a new permit, an event has occurred which renders it impossible for this court to grant any relief, and, as only an absolute question remains to be decided, the writ of error will be dismissed.”

It is true that on rehearing it was held, in 202 U. S., 246, that:

“A writ of error having been dismissed, after full argument, as being a moot case, on mistaken assumption of fact justified by the record, and the petitions' for rehearing showing facts on which substantial relief can be granted the application for rehearing is allowed and the case decided on the merits on the arguments already made.”.

But the duration of .the certificate here in question is not alleged to be nor could it possibly be extended by renewal pendente lite, so as to prevent abatement of the action as was done under the laws of Kentucky in the case above cited.

It is said, however, that there still exist executory contracts of life insurance entered into in this state, under color of the certificate fraudulently procured, 'whereon premiums are to be collected, options allowed, and losses adjusted, and that these afford a sufficient subject-matter whereon to found our jurisdiction.

But though a foreign life insurance company’s certificate of authority to transact business in this state were revoked for sufficient cause, the prohibition to transact its business thenceforward in Ohio would not extend to the winding up of business already undertaken. In such case, Section 277, Revised Statutes, provides that:

“It is unlawful for the agents of such company to procure any new applications for insurance or to insure any new policies. ’ ’

No policy holder is here invoking relief in respect to any business transacted or policy issued in this state, under color of the authority conferred by the certificate in question, and this court will not assume jurisdiction thus to act in their behalf alone when no public interest is involved.

If this company is still doing new business in this state, it must be presumed to be transacting it in virtue of a new certificate of authority, issued by the superintendent of insurance since this action was begun, and in obedience to the laws of Ohio governing the subject.

We do not deem it necessary to discuss the other questions presented. The petition is dismissed.


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    INEFFECTUAL EFFORT TO CORRECT DATE IN MECHANIC’S LIEN.
    Circuit Court of Summit County.
    Caroline Culver Hale v. Isabella A. Coleman et al.
    Decided, April, 1907.

      Mechanic’s Liens Not to he Varied hy Judicial Decree.

    A court lias no jurisdiction to amend by judicial decree a mechanic's lien, by ante-dating the first item of the account as filed to make it conform to the actual date of the furnishing of material.

      Grant, Sieber fSf. Mather, for plaintiff.

      Dick, Doyle & Bryan, Musser, Kohler & Mottinger, Wise, Laub and Boylan & Brouse, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   In this case one of the defendants, the Akron Lumber Co., seeks to have a decree amending its mechanic’s lien by antedating, to conform with the alleged actual date of sale of the first item in its account as filed, which it alleges, “through inadvertence,” was thus erroneously transcribed. Plaintiff is a mortgagee whose lien attached between the dates in question and before the said mechanic’s lien was filed. If this relief were granted plaintiff’s prior lien would be made subsequent to that of the Akron Lumber Co. But she did not change her position on the faith of said mistake.

The Akron Lumber Company filed its original answer and cross-petition herein admitting that its lien was inferior to plaintiff’s, and it was not until after decree and a judicial sale of a part of the property that the court below on its application reopened the ease. After the claim now made was thus presented by amended answer and cross-petition the sale was, on plaintiff’s motion, confirmed, and the proceeds agreed to be treated as and for the property in question. The plaintiff was, therefore, not prejudiced by the sale, although if hers shall prove to be the junior lien it must in large part go unsatisfied.

The question is thus presented by objection to introduction of any evidence in support of the new claim made by the amended answer and cross-petition, whether an account filed, to secure a mechanic’s lien may, on account of mere mistake, be amended by decree in equity, so as to render it effective earlier than it would be on its face.

The authorities are in sharp conflict. For such amendment is Miller et al v. Condit et al (Minn.), 55 N. W., 47. Against it is Landon v. Cottrill (Mo.), 60 S. W., 64.

We think the latter is the better rule. This kind of a lien is purely a creature of statute, and we know of no power in a court of equity to amend the statute. When a lien is once secured it should doubtless .be most liberally construed. But it ought not to be transformed, or varied by judicial decree, in its apparent and' manifest scope and effect.

The plaintiff’s motion is granted, and the Akron Lumber Company’s amended answer and cross-petition dismissed.


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    UNUSUAL COURSE OF A REPLEVIN SUIT.
    Circuit Court of Cuyahoga County.
    A. J. Cole v. T. Dave Brown et al.

    Decided, November 4, 1908.

      ■Judgments — No Property Rights Can be Acquired Under a Judgment Afierwa/rds Reversed.

    No property rights as between the parties thereto can be acquired under a judgment which is subsequently reversed, even though the proceeding's relied upon are had under a mandate from the Supreme Court affirming the judgment.

      W. C. Ong and D. M. Bader, for plaintiff in error.

      J. J. McGormich, contra.
    Henry, J.; Marvin, J., concurs.

      Affirmed without opinion, Cole v. Brown et al, 83 Ohio State, 507.

   The parties to this proceeding in error stand related as they stood in the action below. That ivas an action in replevin commenced August 29, 1905. The goods in controversy were the same as those involved in a previous case in equity commenced by the same plaintiff, A. J. Cole, in the same court, June 30, 1904, against J. B. Eberling and William Amos, defendants1. On appeal to this court that suit was decided in favor of Cole and it was decreed that the defendant, Eberling, in performance of his contract so to do, deliver to the plaintiff the goods in question, bn or before July 18, *1905. Thereupon the present action Avas commenced and the goods replevied and sold. On October 9, 1906, the judgment of this court in the former action was affirmed by the Supreme Court of Ohio, as shoAvn by mandate filed in the common pleas court October 17, 1906. On October 30, .1906, the Supreme Court Amcated its first judgment of affirmance and rendered instead a judgment of reversal as shown by mandate filed in this court November 9, 1906.

Thereafter the replevin case came on for trial in the court of common pleas, and the entire record of the preceding action AAras offered in evidence; AAdrereupon the coArrt directed a verdict and rendered judgment for the defendant.

The reversal of this judgment is noAV sought, upon the ground that the Supreme Court AAras without jurisdiction to vacate its own judgment of affirmation after issuing a mandate thereon to the court below.

But, as announced by the presiding judge upon the hearing, we can not assume to ascribe a AArant of jurisdiction to the Supreme Court in a matter A\dierein it has in fact taken jurisdiction. That fact implies an adjudication of its right to do so, and the Supreme Court is the final arbiter of its own jurisdiction. We intimate no doubt A\hatever in the premises.

The suggestion A\ras, hoAveA^er, made from the bench upon the hearing, that possibly the plaintiff’s right under the then subsisting judgment of this court to the immediate possession of the goods taken by Avrit of replevin and sold could not be retrospectively altered by a subsequent judgment of reversal restoring to the defendant the right to such possession. But upon reflection we are clear that a judgment which is reversed is a nullity so far as any party to it is concerned. It becomes as if it never were. It is of no force evidential or otherwise. When offered in evidence in the court below, it was wholly ineffectual to show that title was or ever had been in the plaintiff. As to third parties, bona fide purchasers, the rule may be relaxed; but as to plaintiff in error her, in whose favor the judgment relied on was rendered, it is absolutely worthless.

The judgment below is affirmed.


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    CONSTRUCTION OF THE WORDS “ TAXES AND ASSESSMENTS LEVIED.”
    Circuit Court of Cuyahoga County.
    The John Anisfield Co. v. The C., C., C. & St. L. Railway Co.
    Decided, November 4, 1908.

      Interpretation of Contract — “Taxes Levied” Means Taxes on Duplicate.

    In a covenant regarding taxes thereafter “levied” it is presumed that the parties meant taxes thereafter to be ascertained upon the preparation of the county auditor’s tax duplicate.

      Emil Joseph, for plaintiff in error.

      Cook, McGowan Foote, contra.
    Henry, J.; Marvin, J., concurs.
   We are of opinion that the parties, in the covenant of their written contract of lease regarding the payment of taxes and assessments thereafter “levied” meant to use the term levied in the popular, albeit possibly a loose, sense in which it has admittedly been employed sometimes both by the Supreme Court and the General Assembly, viz., to mean ascertained on the reparation of the duplicate by the country auditor.

The judgment is affirmed.


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    COLLECTION MADE BY BANK.
    Circuit Court of Cuyahoga County.
    Dorr E. Warner, Assignee, etc., of the Glenville Banking & Trust Company, v. John Urfer.
    Decided, November 4, 1908.

      Trusts and Trustees — Banks and Banking — Where a Bank Wrongftilly Commingles Funds of a Creditor with Us Own, the Creditor is not Thereby Preferred Over Other Creditors.

    Where a bank has made a collection for one, and without his knowh edge or consent, opened an account in his name, crediting him with the amount collected and commingling the money with its own, and thereafter becomes insolvent with less money on hand than the amount so collected and commingled, no trust exists in favor of the creditor as he can not follow the trust res, nor is his claim as a creditor preferred to that of other creditors.

      Dorr E. Wewner, for plaintiff.

      A. L. Brewster, contra.
    Henry, J.; Marvin, J., concurs'.
   The finding of facts in this case shows that the bank, before its failure, made a collection for John Urfer; credited the proceeds to a new account which it opened in his name without his knowledge or consent; mingled the same with the other funds of the bank so that they can not be traced either in their original or in a substituted form, and finally made an assignment with but $200 cash on hand. Whether this was the minimum amount of cash which the bank had on hand during the entire interval between the mingling of funds and the assignment does not appear.

On this state of facts Urfer would, of course, be entitled to the return of his money in preference to the claims of the bank’s general creditors if he. could identify or trace it (Jones et al v. Kilbreth, 49 Ohio St., 401). But since it has been inextricably commingled with the other funds of the bank so that it can not any longer be identified or traced, either in its original or in a substituted form, the preference can not operate, for want of any specific property capable of being impressed with the trust which Urfer asserts. Reeves, Stephens & Co. v. State Bank of Ohio, 8 Ohio St., 465.

It is no doubt true that after commingling Urfer’s money with its own, the bank’s minimum cash balance thereafter on hand, would be deemed to consist, in whole or in part as the case might require, of his money; because as between the rightful paying out of its own money and the wrongful paying out of Urfer’s money to other persons, the former is presumed (Commrs. of Crawford Co. v. Strawn, Receiver, 6 O. L. R., 309). But as already stated, there is nothing to show here that the $200 on hand when the bank failed was in fact its minimum amount of cash on hand during that interval.

The argument that the entire assets of the bank at the time of its failure must be deemed to be augmented by the amount of Urfer’s money previously added thereto, is plainly malicious and fallacious. The ultimate insolvency of the bank implies that the diminution of its assets overbalanced all augmentation thereof. If there is any occasion for preferring Urfer, it is due to the fact that the bank’s assets have so diminished that they are insufficient to meet its liabilities. Some of the assets which the bank had when it was solvent are now gone. The moneys having been commingled, Urfer’s money is, for aught we know, among the assets which were lost while the bank was becoming insolvent.

Inasmuch as Urfer’s claim can not be preferred, but must take its place among the claims of the bank’s general creditors, the judgment below in his favor is reversed and final judgment for the assignee entered here.


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    ADMINISTRATION OF TESTAMENTARY TRUSTS.
    Circuit Court of Cuyahoga County.
    Arthur G. Pike et al v. Willis E. White, Executor of the Estate of Hannah K. Gray et al.
    Decided, November 9, 1908.

      Testamentary Trusts — Probate Courts- — Have no Jurisdiction to Supervise Testamentary Trusts.

    1. The probate court has no jurisdiction conferred upon it by law, to supervise or control the administration of a testamentary trust.
    2. Jurisdiction can not be conferred upon the probate court by will or any other private appointment, or by consent, empowering it to act as a court in supervising the administration of a testamentary trust.
    3. When the probate court assumes to act under the provisions of a will conferring upon it supervisory powers over the administration of a testamentary trust, its action is that of a mere arbitrator from which error will not lie.

      Burrows i& Mason, for plaintiff in error.

      Griswold >& White and Alfred Glum, contra.
    Henry, J.; Marvin, J., concurs.
   The parties to this proceeding in error’ stand as they stood in relation to the original application in the probate court, and also in the proceedings in error prosecuted in the court of common pleas. The facts in brief are as follows:

Benjamin Gray died in 1901, survived by his widow and leaving a will which devised his property to a trustee, for and during the life of his said widow, remainder to certain collateral relatives, the plaintiffs in error here. By the terms of this testamentary trust the entire income from his estate was to be paid to his widow, during her lifetime, and in ease her necessities should so require, the trustee was authorized to pay her such additional amount out of this estate as the probate court, upon application, should determine to be needed by her. Such application was made and the case separately docketed in the probate court. All other persons interested in the will were made parties defendant and upon healing had the probate court ordered that the trustee pay the widow $1,000 a yeLar, during the remainder of her life, in equal monthly installments, and that he should sell certain unproductive property of the estate, consisting of unimproved village lots, from year to year, in order to. provide the means of complying with this order. At that time the widow’s health was poor but she subsequently recovered, so that, as now claimed, her pecuniary requirements were greatly lessened. She lived for about five years after this order was made, but received only about half of the five thousand dollars that was payable to her by the court’s order, and of the amount received she left unexpended the sum of $1,000. A short time prior to her death, upon representation to the probate court that the unproductive property had proved unsaleable On the terms stipulated in the court’s order in such amount as to provide money enough to comply with that order, the court entered a supplementary order directing the trustee to sell certain productive real estate for that purpose.

Since the death of the widow, the defendant in error here, as her personal representative, was proceeding to collect the arrears of her allowance from the trustee under her husband’s will, when the plaintiffs in error here interposed a motion in the probate court for a modification of the previous orders in such wise as to prevent any further payments by the trustee, and possibly, also, to lay a foundation for collecting from the defendant in error the unexpended portion of the allowance that had been paid his decedent in her lifetime. Upon the hearing of this motion the probate court declined to receive any evidence, upon the ground that the matter was res adjudicata and the rights of the defendant in error here, to the full amount of his decedent’s allowance, had vested and become fixed in her lifetime.

The common pleas court affirmed this judgment, and we are asked to reverse the judgment of both courts below.

Upon examination of the statutes conferring jurisdiction upon the probate court, both generally, as-in Sections 524 and 525, Revised Statutes, and with special reference to testamentary trustees, as in Section 6330, Revised Statutes, etc., we fail to find that the probate court has any jurisdiction whatever conferred by law upon it to supervise or control the administration of a testamentary trust. See Roekel’s Ohio Probate Practice, Sections 1295 and 1296.

On the contrary, jurisdiction in this behalf is vested exclusively in the court of common pleas by Section 6202, Revised Statutes.

Nor can the will confer upon the probate court jurisdiction to act as a court in the premises, for it is elementary that jurisdiction can not be vested in any court by mere private appointment or consent but only by virtue of constitutional provision or legislative enactment.

It follows, therefore, that the probate court’s action in accordance with the appointment of the will of Benjamin Gray is entirely non-judicial. The probate judge for the time being simply acted as arbitrator in precisely the same manner that any other designated person might have acted. His action in the premises and his subsequent refusal to act further afford no proper basis for proceedings in error; hence the refusal of the court of common pleas to reverse the order of the probate court presents no prejudicial error and its judgment is affirmed.


author: By the Court.

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    JUDGMENT CAN NOT- BE AFFECTED BY EVIDENCE WITHHELD.
    Court of Appeals for Hamilton County.
    Frank Boggs v. J. Willard Haley et al.

    Decided, February 14, 1914.

      Weight of the Evidence Presented Determines the Case — Absence of Important Evidence Can Not be Considered.

    A court is bound by the evidence adduced at the trial and must give judgment accordingly, notwithstanding it regards with suspicion the failure to offer in evidence papers and documents having an important bearing on the issue joined and which were before the same court in a former case.

      Clove, Dickerson & Clayton, for appellants.

      Kramer & Beitman and Jos. A. Keaclin, contra.

      Affirmed by the Supreme Court without opinion, May 4, 1915.

   By the Court.

This is an action heard by this court on appeal, in which plaintiff sought to recover money which he had been induced through alleged fraud to invest with defendant in a chemical business.

Plaintiff’s petition alleges that he had paid $2,500 for a half interest in this business and was to be employed by the company which was carrying it on, in a position, for $150 per month; that he gave up his former employment and received pay from the company for six months, when he was told that the business was not sufficiently profitable to continue him and he was forced to withdraw; that he had been given 35 shares of stock in the company, which, he alleged, was not a corporation in fact .but was simply a device that had been- adpoted by defendant to use as a means’ of fraud in obtaining plaintiff’s money, and that the stock was therefore of no value; that not having received any dividends on this stock for three years, and relying upon representations of defendants that the business was not earning anything, he was induced to take $500 for his stock. Plaintiff_ alleged that the business had in fact been profitable, that there was no corporation in existence, and prayed in the alternative that if the court find .that there was a corporation his rights in the same should be reinstated, and if it should find that there was not a corporation that the money out of which he had been defrauded might be returned to him.

Before the introduction of any testimony, counsel for the defendant made an offer to retransfer to plaintiff the 35 shares of stock in said corporation, which had been originally issued to the plaintiff and had then afterwards been sold and transferred by him to the defendant, upon the return of the $500 which had been paid by defendant to plaintiff for such stock. The plaintiff upon the making of such offer in open court declined to accept the same and refused to return the $500. It thereupon became incumbent upon the plaintiff to show the nonexistense of the corporation. This he was unable to do by the evidence submitted.

While the court might view with suspicion defendant’s explanation of his inability to produce certain'papers and documents belonging to said corporation, which had been used in evidence in the trial of another suit before this court with reference to the same corporation, still this court is bo and by the evidence adduced at this trial, and must therefore find that plaintiff has failed to make out his case by the proof, and’ his petition is therefore dismissed. . ....


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    CONSENTS OF ABUTTING PROPERTY OWNERS NOT NECESSARY TO A STREET RAILWAY GRANT.
    Court of Appeals for Hamilton County.
    The City of Cincinnati, The Cincinnati Traction Company and The Cincinnati Street Railway Company v. David L. Carpenter et al.
    Decided, June 1, 1915.

      Constitutional Law — Control dncl Dominion Over the Streets of a Municipality — Vested in Council for Use of the Public — Rights of Abutting Oioners Limited to Ingress and Egress — Unconstitutionality of the “Consent” Statutes, Which Are Rased on an Arbitrary Glassification of Individuals.

    The provision of Section 9105, requiring that the consents of abutting property owners shall be produced before council can, by ordinance, grant the right to construct or extend a street railway line, gives to such property owners a voice in determining a question over which the municipality, speaking through its council, has exclusive control, and the provision is therefore a delegation of legislative power and is unconstitutional and of no effect.

      Walter M. Sohoenle and Alfred Bettman, for City of Cincinnati.

      Joseph Wilby and George 11. Warrington, for Cincinnati Traction Co. and Cincinnati Street Railway Co.

      Dinsmore <& Shohl, for defendants in error.
    Gorman, J., Jones (E. TI.), J., and Jones (Oliver B.), J., concur.
   This is a proceeding in error to reverse a judgment of the Superior Court of Cincinnati perpetually enjoining the plaintiffs in error, the Cincinnati. Traction Company and the Cincinnati Street Railway Company, from constructing and operating under ordinance No. 104 — 1913, on the Reading road between Clinton Springs avenue and the Paddack road, any street railway tracks or routes, and from placing any poles, wires, etc., for the operation thereon of an electric street railway.

On tbe 11th day of February, 1913, the council of the city of Cincinnati passed an ordinance, No. 104 — 1913, granting to the Cincinnati Street Railway Company and the Cincinnati Traction Company permission to extend the Avondale street railway line and route from a point at or near the intersection of Mitchell avenue, otherwise known as Clinton Springs avenue, over and along the Reading road to the intersection of the Paddack road; thence over the Paddack road northwardly to a point where .the Norfolk & Western Railway crosses said Paddaek road in or near the suburb of Bond Hill. The ordinance appears to be regular and to grant everything necessary to enable the said companies to construct and operate this extension without increase charges of fares.

It is set forth in the ordinance, and admitted to be true, that the consents of the owners of more than a majority of the front feet of the property abutting on the Paddack road were produced to the council before the ordinance was adopted, but that the consents of the abutting property owners on the Reading road were not produced to council. The council of said city, notwithstanding the failure to produce in writing the consents of! the owners of a majority of the front feet of the property on the Reading1 road, declared in the ordinance that the necessity and importance of this extension warrants the granting of the permission therefor without such consents.

On April 23, 1913, David L. Carpenter and several others,, property owners on Reading road, jointly filed a petition in the Superior Court of Cincinnati to enjoin the Cincinnati Traction Company and the Cincinnati Street Railway Company from constructing or operating said street railway extension over Reading road under said ordinance, alleging that the ordinance is null and void because owners of a majority of the front feet of the property on Reading road between Mitchell avenue and Paddack road did not consent to the construction and operation of said extension.

The city of Cincinnati upon its own motion, through its solicitor, was made a party defendant and filed an answer to the petition admitting that plaintiffs were property owners on the Reading road between the points aforesaid, and practically admitting all the allegations of the petition, and then set out a copy of the ordinance granting the permission to the said corporations to extend their tracks and routes as aforesaid on the terms and conditions therein set forth.

Defendants, the Cincinnati Traction Company and the Cincinnati Street Railway Company, demurred to the petition, and the plaintiffs demurred to the answer of the city of Cincinnati. These demurrers raised the question of law as to the jurisdiction or authority of the council of the city of Cincinnati to grant a right to extend the tracks of an existing street railway over any street or portion of a street without the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street along which it is proposed to construct such extension.

The demurrers to the petition were overruled, and the demurrer of the plaintiffs to the answer of the city of Cincinnati ivas sustained, and the court below held the ordinance granting the right, to extend, null and void, and perpetually enjoined the defendants, as above stated.

All of the defendants below prosecute error, and join in the prayer of the petition in error for a reversal of the judgment.

The sole question, therefore, submitted to the court, is oue of law: Did the court below err in holding the ordinance in question to be mill and void because of the absence of the written consents of the owners of the prescribed number of front feet of the abutting lots and lands on Reading road between Mitchell avenue and Paddack road?

Sections 3777 and 9105 of the General Code are the statutes relied upon by defendants in error to sustain their contention and the judgment of the learned judge who decided the case in the court below.

Section 3777, General Cede, among other things provides that:

“The council of a municipality may grant permission by ordinance to any corporation, individual or company owning or having the right to construct a street railroad, to extend the track, subject- to the provisions of law relating to the construction, operation and extension of street railways within or without or partly within or without any municipal corporation, on any street or streets where council deems such extension beneficial to the public.”

The provisions of law “relating to the construction, operation and extension of street railways within or without or partly tcithin and wiihotit my municipal corporation” are to be found in Chapter 10, Division II, Title IX, Part Second of the General Code, under Private Corporations, Section 9105. Section 3777 above referred to is found under Part One, .Title XII, Division III, Municipal Corporations, in the General Code.

Section 9105 among other things provides that:

“No such grant shall be made until there is produced to council, or the commissioners, as the case may be, the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way, along which it is proposed to construct such raiJway or extension thereof,” etc.

The grant referred to by this section, by reference to Sections 9100-9101, means the grant to construct or extend street railways within or without or partly within and partly without any municipal corporation. There appears to be no provision of law referred to in Section 3777, General Code, relating to the construction, operation and extension of street railways partly within or without any municipal corporation, unless it be the provisions of this Section 9105, General Code,. which relates to constructions and extensions within or without or partly within and partly without municipal corporations. We shall assume notwithstanding the use of the word “and” instead of “or” that Section 3777 when it speaks of the provisions of law relating to the “extension of street railways * * * partly within or without any municipal corporation” has reference to Section 9105, General Code, requiring consents to grants of extensions within or without or partly within and without any municipal corporation.

It is contended by the plaintiffs in error that this Section 9105, General Code, requiring the consents of abutting property owners to be produced before the council can by ordinance malm a grant to construct or extend a street railway, is unconstitutional because it delegates to property owners on a street or portion of a street the power to determine whether or not any ordinance shall be adopted by council, the legislative body of municipal corporations, granting permission to construct or extend street railways on the streets of the municipality. It gives such property owners a voice in the determination of the question of whether or not such an ordinance shall be adopted.

The grant, in municipalities, to construct or extend street railways can be made by ordinance only and by the council only. Section 9101, General Code.

The granting of a franchise to construct or extend a street railway by ordinance is an exercise of legislative power pure and simple. The control and dominion over the streets and highways of a municipality, to keep the same open, in repair and free from nuisances is expressly delegated to the council by'Section 3714, General Code.

The title to the streets and highways within a municipality, under Section 3585, General Code, and the decisions of our courts, is vested in the municipality in trust for the use of and by the public. St. Ry. v. Cumminsville, 14 O. S., 523; Callen v. Electric Light Co., 66 O. S., 166; L. N. R. R. Co. v. Cincinnati, 76 O. S., 481.

The administration of the trust reposed in the council over the streets and highways has been delegated to it by the Legislature, and must be for the use and benefit of the whole public and not for a part thereof. The granting of a franchise to construct or extend a street railway by ordinance is a legislative function and the power to make the grant by the Legislature, or by the council if authorized to act for the Legislature, is limited only by the rights of the abutting property owners.

It has been held that the ordinary use of a street for public travel does not in any way affect the property rights of the abutting owners. They have the right of access to their property from the street, the right of ingress and egress — a property right which can no more be taken from them under the Constitution and decisions, without compensation, than can their lands be taken without first being paid or secured to be paid. Unless the laying of a street railway track in a street affects the abutting property owner’s egress or ingress, no property rights are invaded by the laying of the tracks or the operation of the street cars thereon. If the tracks should be laid so near to the property line as to interfere with his access to this property; then the owner would have a right to require compensation before the laying of the tracks could be done. Street Railway v. Cumminsville, 14 O. S., 523. It was said by Judge Ranney, announcing the opinion of the court in this case, on pages 544 and 545:

"The use of a highway for the purposes of a street railroad, involves the application of new appliances and modes of travel, rather than of any new principle. ® ® * So far as the carrying of passengers by this mode is concerned, it differs in nothing from the exercise' of the common right of carrying them by coaches or omnibuses; and everything needing a .grant or the further authority of law, is the right to place and maintain in the highway, the necessary conveniences for this new description of carriages.”

The right to consent or withhold consent to coirstruct or extend a street railway has been held not to be a property right, but a personal right. It was not given for the purpose of protecting a property right. Traction Co. v. Parish, 67 O. S., 181; Roberts v. Easton, 19 O. S., 88.

All the property rights of the abutters are fully protected by the Constitution, those of the minority as well as of the majority owners of the feet front. Tf in the laying of street car tracks or in the operation of the cars over the tracks any property right should be affected, then any and all the abutting owners have a remedy by resorting to the courts to require compensation to be paid, and this right may be asserted by the minority owners of the front feet as well as by the majority owners, and regardless of whether consents were given or not given. Those who give their consents do not thereby preclude themselves from requiring compensation to be paid if their right of access to their property is affected.

The Supreme Court has never yet directly passed upon the constitutionality of this legislation.

In the ease of Isom v. Low Fare Ry. Co., 10 C.C. (N.S.), 89, the Circuit Court of Cuyahoga County, Judges Wilson (of the Second Circuit), Donahue (of the Fifth Circuit), and Wildman (of the Sixth Circuit) held these sections, then Sections 1536-188 and 1536-189, requiring consents as a condition precedent, to be a valid and constitutional exercise of legislative power. The point was made in the attack upon them that they create a favored class upon whom a privilege is bestowed to the exelu-. sion of others having equal rights, and that the privilege which the owners of a majority of the abutting feet frontage of lots and lands enjoyed in being allowed to consent or withhold consent to the grant of a right to construct and operate a street railway over a given street, operated as an arbitrary classification of individuals. It was contended that this privilege extended to these property owners is violative of Section 1 of the Fourteenth Amendment of the Constitution of the United States, in that it denies to all persons equal protection of the law, and deprives persons of their property without due process of law. An examination of the printed record in that case, No. 10871 Supreme Court, at page 6, fifth assignment of error in the petition in error, will disclose that this was the constitutional objection raised to the validity of these consent statutes. The question of their conflict with any of the provisions of the Constitution of Ohio was not raised in that case. A reference to the decision in this ease by the circuit court, pages 91, 92 and 93, will disclose that the court was referring to the objections urged to.the validity of these consent sections — that they provided for an arbitrary classification of individuals not based upon any substantial fundamental reason therefor: that the creation of such a class and conferring upon it such a privilege (of consenting or withholding consents) as is conferred by these statutes were and are a mere arbitrary classification, and grant special privileges to such favored class. Now such an objection in the'nature of things must be founded on the claim that these statutes are violative of the Fourteenth Amendment of the Federal Constitution and the section thereof above referred to. The judgment of the circuit court was affirmed without report by the Supreme Court, 77 O. S., 638. There were several other points raised in that case, and in view of the past utterances of the Supreme Court itself we are not at liberty to speculate as to the grounds upon which the affirmance was based. The point was not urged, either in the circuit court or in the Supreme Court, that these sections are unconstitutional because there was a delegation of legislative power to these individuals by the General Assembly. The circuit court recognized the force of the contention made that these statutes are unconstitutional on the grounds above stated, but was cojistrained to hold, that 'the constitutionality of this legislation is no longer an open question in this state by reason of the decisions of the Supreme Court in the reported cases of Roberts v. Easton, 19 O. S., 78; Railway Co. v. Neare, 54 O. S., 153; Traction Co. v. Parish, 67 O. S., 181, and other cases not cited.

From these eases in which the Supreme Court recognized this legislation and held that the consents were conditions precedent which must exist in order to authorize councils of municipalities to pass an ordinance maldng a grant to construct or extend a street railway, the circuit court in this Isom ease concludes that the Supreme Court is committed to the doctrine of the constitutionality of the legislation; and that in view of the many declarations of that court sustaining these statutes and requiring full compliance therewith, the rule of judicial subordination would require a court of inferior jurisdiction to hold the same constitutional and thus pass the question on to the Supreme Court as the only tribunal which has a right to review and reverse its declarations of the law.

These' conclusions of the Cuyahoga circuit court are Urged upon this court as reasons why we should adopt the position taken by that court in the case cited, and pass the question of the constitutionality of this legislation up to the Supreme Court in the instant ease. The rule of judicial subordination is claimed to operate as strongly in this case as in the one decided by the Cuyahoga county circuit court. But it appears to us that the question as to whether or not these sections are violative of the Ohio Constitution was not presented to the circuit court or to the Supreme Court in this-Isom case. Certainly the question of the delegation of legislative power was not raised or presented, nor have we been cited to any reported ease in which the question of the conformity of these sections to the Ohio Constitution has been raised or presented to the Supreme Court.

It is a well settled rule of the Supreme Court of this state that until a constitutional case is raised and argued and specifically decided, it will be deemed an open question. Many authorities in support of this proposition can be cited.

In Dayton v. Bauman, 66 O. S., 379, at page 394 the court says:

“It is urged that to affirm the judgment in the ease at bar involves the overruling of Meissner v. Toledo, 31 O. S., 387; Chamberlain v. Cleveland, 34 O. S., 551; Raymond v. Cleveland, 42 O. S., 522; and Krumberg v. Cincinnati, 29 O. S., 69. * * * Meissner v. Toledo construed the statutes then in force, and did not pass upon'their constitutionality, but assumed them to be constitutional. The question of their constitutionality was not raised or decided. The case of Chamberlain v. Cleveland, 34 O. S., 551, was decided in the light of Cleveland v. Wick, 18 O. S., 303, and the question as to whether money could be raised by assessment to pay for private property taken for public use was not-raised, and was not argued or decided, but was conceded by counsel and assumed by the court. ’ ’

Tn the case of Milwaukee, etc., Insurance Co. v. Russell, 65 O. S., at 257 of the opinion the court says:

“Assuming that they might have been made, it is perfectly clear that no question of the kind was either passed upon or considered by the court, or broug’ht to its attention, or even alluded to by counsel. This plainly appears from the report of the case. It has long been the established rule of this court, as well as the settled law on the subject, that: ‘A reported decision, although in a case where the question might have been raised, is entitled to no consideration whatever as settling, by judicial determination, a principle not passed upon nor raised at the time of the adjudication.’ Fouts v. State, 8 O. S., 98, 123. Where the questions were not raised nor considered, ‘it is as if they were not in the case at all.’ State v. Pugh, 43 O. S., 123, 123; Wambaugh’s Study of Cases, See. 17.”

To the same effect are the decisions in State, ex rel Attorney-General, v. Beacon, 66 O. S., 491-507; State, ex rel Guilbert, v. Tates, 66 O. S., 548.

As we have seen that the constitutional question raised as to these consent sections in the Circuit Court of Cuyahoga County and the Supreme Court in the Isom case, supra, was that of the Federal Constitution — Fourteenth Amendment — and not the question of the violation of the Ohio Constitution, and inasmuch as no constitutional questions were raised, ai’gued or decided in Roberts v. Easton, 19 O. S., Neare v. Railway Co., 54 O. S., and Traction Co. v. Parish, 67 O. S., in which decisions these consent sections were assumed to be constitutional and valid, we. feel that we are not precluded from considering the question of their validity under the Constitution of Ohio, in view of the rule adopted by the Supreme Court above referred to.

We come now to consider the question of whether or not these consent sections are violative of the provisions of the Ohio Constitution which vests in the General Assembly all legislative power, and which power can not be delegated to any other persons or body; and in the determination of this question we shall endeavor to apply the light of reason and such authorities as we find which will aid us in the solution of the problem.

In the case of C., W. & Z. R. R. Co. v. Commissioners of Clinton County, 1 O. S., 77, Judge Ranney, in announcing the decision of tlie court in an able and exhaustive opinion, considers the question of the Legislature delegating the authority with which it is vested by the Constitution, Article II, Section 1, on page 87, well says:

“That the General Assembly can not surrender any portion of the legislative authority with which it is invested, or authorize its exercise by any other person or body, is a proposition too clear for argument, and is denied by no one.”

And on page 88, he says:

“The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first can not be done; to the latter no valid objection can be made.1 ’

Now if we apply this very lucid and rational rule to the legislation under consideration relating to the giving of consents to the making of a grant by ordinance to a street railway company, what is the situation presented? The council of a municipality, the legislative body in the exercise of a legislative function, finds itself unable to pass a valid ordinance making a grant, unless these abutting property owners shall be consulted, give their consent in writing — vote upon the question, as it were, of passing the ordinance. In giving or withholding their consent to the ordinance, are thqy not as much participating in the exercise of legislative functions as the members of council? Has not the Legislature delegated to them a voice, in the making of this grant, in the passage of the ordinance? Could the Legislature by statute provide that street railways may be constructed or extended over highways or streets only on the condition that the property owners first consent that such a law may be enacted? Would not such a law be violative of the principle laid down by Judge Ranney in the above cited case, that there can be no delegation of power to make the laws? The ordinance can not be passed until the property owners say it may. Surely they then have a voice in making the law, and this they may not have without receiving a delegation of legislative power from the Legislature. The grant of such a power — the right to have a voice in the legislation — can not be delegated to them.

In the case of Harmon v. State, 66 O. S., 249, the Supreme Court in passing upon the constitutionality of the Roberts law, which delegated to a district examiner of steam engineers the power and authority to grant or withhold a license to operate a steam engine, says, on page 253:

“Thus allowing the examiner of a district to, in effect, make the law for his district, limited only by his will as to what shall constitute the standard of the qualification of engineers, is granting legislative power to such examiner, and the appeal to the chief examiner does not change the matter.
“By Section 1 of Article II of the Constitution all legislative power is vested in the General Assembly, and this power can not be delegated to individuals or officers. Mathews v. Murphy, 63 S. W. Rep., 785.
“Said Section 6 of the Roberts law is therefore in conflict with said Section 1 of Article II of the Constitution, and is void.”

Is there any more a delegation of legislative authority when the statute makes the consent of a district examiner a condition precedent to securing a license to operate a steam engine, than when a statute provides as a condition precedent that no street railway may be laid in a street of a municipality without the consent of certain property owners on the street? We are unable to see any distinction in principle, between the two eases; and as to the effect of the two laws, the one relating to the consent of property owners is fraught with much graver consequences than the other law.

See, also, State, ex rel Allison, v. Garver, 66 O. S., 555-564, in which case the court says on page 564, in passing upon the constitutionality of the law to limit the compensation of county officers in certain counties depending upon the vote of the electors of the county:

“Hence, tbe taking effect, as well as the enforcement of tbe statute, is made to depend on the approval of another authority than the General Assembly, namely, the will of a majority of the electors. The entire legislative power of the state is vested in the General Assembly and * * * it could not be delegated.” Citing R. R. Co. v. Com’rs, 1 O. S., 77, 87.”
“One of the settled maxims in constitutional law is, that the power conferred upon the Legislature to make laws can not be delegated by that department to any other body or authority. * * * The power to whose judgment, wisdom and patriotism this high prerogative has been intrusted can not relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.” Cooley on Const. Lim., 7th Ed., 163.
“But this does not so operate as to prevent the legislative bodies from providing for the organization, creation or abolition of municipal corporations and vesting them with' such legislative power as it deems necessary for purely local purposes. « * * The Legislature in these cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the state; and when it interferes, as sometimes it must, to restrain and control the local action, there should be - reasons of state policy or dangers of local abuse to warrant the interposition.” Cooley on Const. Lim., 7th Ed., 264-265; Bliss v. Kraus, 16 O. S., 55

But conferring power and authority on municipal corporations or the councils thereof, is quite a different proposition from conferring authority on private individuals to consent or withhold consent to legislative acts of councils or the Legislature.

Local option laws depending for their operation upon a vote of all the people of the district to be affected have been lately held to be valid and constitutional, upon the theory that the voice of the people was not required to bring the law into existence, but only to give it operative force and effect, and therefore there is no delegation of legislative power to pass the law in such cases, but only a delegation of power to determine whether or not the law, after it is passed, shall be operative in the district. And while the weight of authority supports the validity of local option laws, nevertheless there are respectable authorities holding that such laws are unconstitutional as a delegation of legislative power. See Ex parte Wall, 48 Cal., 279; Rice v. Foster, 4 Harr. (Del.), 479; Maize v. State, 4 Ind., 342; State v. Geebrick, 5 Ia., 495.

While local option laws are sustained in this state they appear to be held valid on the ground that they are merely regulatory laws under the police power and the constitutional provision giving the Legislature power to regulate the traffic in intoxicating liquors.

In Gordon v. State, 46 O. S., 607, page 633, the court says:.

“The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first can not be done; to'the latter no valid objection can be made.”

It is urged that if the provisions relating to consents should be held unconstitutional, then the entire structure of legislation relating to street railway grants will fall and there will lie no power to grant a franchise at all. We do not think that any such consequence WQuld follow.

A part of a statute may be unconstitutional and void and the remainder valid. 29 Am. & Eng. Ency. of Law. 2d Ed., 570, and cases cited; Kelley v. State, 6 O. S., 269; State v. Yates, 66 O. S., 546-548.

An examination of Sections 3770, 9105, 9106 and 9107, which are the only sections in which consents are referred to, discloses that they or the parts thereof relating to consents may be expunged entirely from the General Code, and there will remain ample power in the municipality to grant a franchise to construct or extend a street railway and prescribe all the conditions needed to protect the public and the corporation or person, to whom the grant may be made.

Furthermore, it may be that council under the grant of power in Section 3714, General Code, would have ample power to grant permission to construct or extend street railways by virtue of its control over the streets. See Hattersley v. Waterville, 4 C.C.(N.S.), 243.

No possible harm can result to the property owmers by the repeal of these statutory provisions or by a .judicial determination of their unconstitutionality. The property owners, both the majority and the minority, on every street over which a street car line is proposed to be operated have their remedy in case their property rights as abutters are affected by the construction or extension of a street railway, in an action for compensation.

The right to consent or withhold consent, is not a property right but a mere personal privilege conferred upon the owners of a majority of the foot frontage of the lots and lands abutting on the street. — a right withheld from the minority. It affords an opportunity to selfish and non-public spirited property owners on a street to prevent needed transportation facilities to an entire municipality, to inconvenience the public, to check the development of a city. It might afford an opportunity to barter and sell this privilege given by tire Legislature — to traffic in a gift of the General Assembly. It affords no possible benefit to the holders of the privilege, and works a great injustice to the public who are entitled to use the highways in as full and complete a manner as the development of modern modes of travel will permit.

No attempt has ever been made to defend these statutes. They confer upon a favored class a personal privilege or an interest in the public estate, the public highways, which they can and in many instances do sell and resell for money and other valuable considerations, instances of which appear in the Parish case, 67 O. S.

The Legislature, in our opinion, might with as much right and justice confer upon abutting property owners along a public highway the special privilege of consenting or withholding .their consents to the pedestrians or other vehicles than street cars, such as wagons, carriages, automobiles and omnibusses, to travel the streets and highways whereon their property abuts. But as the street car is no additional burden upon the street, and its operation is not an interference with the property rights of the abutter, upon what principle of right or justice can the Legislature confer upon these private individuals a part of the sovereign legislative power of the state to control or have - a voice in controlling the public ways, the title to which is held as a sacred trust for the use and benefit of the whole people?

Upon a full consideration of the question involved, after having been enlightened by the cogent oral arguments of able counsel and the exhaustive briefs submitted by them, we are of the opinion that the legislation relating to consents required to be produced under Sections 3770, 3777 and 9105 of the General Code, is unconstitutional and void, and that the ordinance passed by the council of the city of Cincinnati, above referred to, is a valid legislative enactment without the consents of the property owners on Reading road or on Paddack road.

The judgment of the superior court will therefore be reversed.