author: SULLIVAN, J.

text:
    TAXATION — STATUTES —CONSTITUTIONAL LAW.
    [Franklin (2nd) Circuit Court,
    November, 1903.]
    Sullivan, Summers and Wilson, JJ.
    Ellis O. Jones v. Franklin County (Comrs.) et al.
    1. Legislature May Repeal Statutes Without Reason Therefor.
    The legislature has power to repeal a statute although no reason be assigned therefor, or if a reason be assigned which fails, or proves wholly insufficient, the repeal still remains effective.
    2. Courts Will not Correct Legislative Mistakes, When.
    Courts will not correct errors in a statute, or declare it repealed by mistake, unless the errors or mistake appear beyond doubt from its face, or by reading it in connection with others in pari materia; a fortiori where the repealing statute expressly recites the substance of the one repealed.
    3. Statute not Held Repealed by Mistake,.When.
    The fact that a repealed statute is not inconsistent with any of the provisions of the repealing act, or relates to an entirely different subject, is not sufficient to warrant a court in declaring it repealed through mistake; nor will a court determine whether the repealed statute is inconsistent with the repealing act when it is expressly repealed.

      4. Act may Contain Two Subjects — Effect Thereof — Constitutional Law.
    Section 16, Art. 2 of the state constitution, which provides that “no bill shall contain more than one subject, which shall be clearly expressed in the title,” is directory merely; hence, Sec. 231 of the act of October 22, 1902 (96 O. L. 96; commonly called the “new municipal code”) expressly repealing Sec. 2823a Rev. Stat., is constitutional, and effectually repeals said section, notwithstanding the latter relates to county tax levies and is in no way connected with the subject of municipal tax levies or the other provisions of said act.
    5. Taxes for County Purpose May be Levied Under Sec. 2823 Rev. Stat.
    The county commissioners have power to levy -taxes for county purposes and the bridge fund under Secs. 28:23 and 2824 Rev. Stat., upon all the taxable properly within the county; and regular levies made thereunder will be upheld, notwithstanding the same levies might have been made under Sec. 2823a Rev. Stat., before its repeal.
    6. Repeal of Supplementary Act does not Affect Act to Which it was Supplementary.
    Section 2823a Rev. Stat., and the amendment thereto of April 23, 1902 (95 O. L. 255; repealed, 96 O. L. 104, Sec. 231), was only supplementary to, and did not repeal, Sec. 2823 Rev. Stat., and the latter statute being in existence at the time of the passage of said supplementary act, and specifically authorizing tax levies for county purposes, was not affected by, or included in the limits of, said supplementary act.
    Section 2823a Rev. Stat. (Repealed) Inconsistent with Municipal Code. -1*
    Under Sec. 860 Rev. Stat., a municipal corporation is not entitled to demand any part of the bridge fund levied by the county commissioners upon the taxable property of {he municipality; and as Secs. 7, 9 and 28 of the new' municipal code (Secs. 1536-100, 1536-102 and 1536-131 Rev. Stat.) confer power upon municipal councils to control, improve and repair bridges within the municipality, and to levy taxes for such purposes, and transfers such duties and powers from the counties to the municipality, it would seem that Sec. 2823a Rev, Stat., which also authorizes county commissioners to levy taxes for such purposes, is inconsistent in such respbcts with said provisions of the :ode.
    ,8. Tax Levies by Counties for all Purposes Must not Exceed One and Eight-Tenths Mills, When.
    The county commissioners are authorized, under Sec. 2820 Rev. Stat., et seq., to levy in each year for all purposes, and are strictly limited to, not exceeding in the' aggregate one and eight-tenths mills on each dollar of value of taxable property within their county, except in cases where it becomes necessary to repair, or rebuild county buildings damaged or destroyed by fire and other casualties.
    9. Levy for County Purposes Must not Exceed One and Three-Tenths Mills— Bridge Fund Five-Tenths Mills — How Reduced.
    A tax levy of seven-tenths mills on each dollar of value of taxable property is authorized by Sec. 2823 Rev. Stat., for county purposes, except that when such levy is deemed insufficient it may be increased six-tenths mills, or one and three-tenths mills in all, in which event the levy for other purposes provided in said section shall be reduced to such extent; under Sec. 2824 Rev. Stat., a levy not exceeding five-tenths mills in any event is authorized for the bridge fund. Hence, a levy of two and four-tenths mills for county purposes (the seven-tenths mills levy being deemed insufficient) will be reduced to one and three-tenths mills, and a levy of one and four-tenths mills for the bridge fund will be reduced to five-tenths mills, the maximum amount allowed by law in each case, respectively; but the total deduetion cannot be made from the bridge fund levy alone.

      10. Whether Levy Excessive not Determined on Demurrer, When.
    A court will not determine on general demurrer whether the levy made for the bond redemption fund w-ill yield a sum greatly in excess of the amount required to pay the principal of the maturing bonds and interest thereon for the year, where the petition does not set forth the amount of the face value of the maturing bonds and the accruing interest. Such question is one of fact which cannot be determined on general demurrer.
    11. Constitutionality of Sec. 2823a Rev. Stat. not Decided.
    Whether Sec. 2823a Rev. Stat. was unconstitutional before its express repeal by the new municipal code, not decided.
    Appeal from court of common pleas of Franklin county.
    M. E. Thrailkill and M. B. Earnhart, for plaintiff:
    Right to sue. Sections 5008 and 5848 Rev. Stat.
    Constitutional limitations on taxation. Section 5, Art. 12 and See. 5, Art. 10 of the constitution of Ohio; Sec. 2861 Rev. Stat.
    ' Power to tax. Adler v. Whitbeck, 44 Ohio St. 539, 567 [9 N. E. Rep. 672] ; Mays v. Cincinnati, 1 Ohio St. 268; Debolt v. Insurance Co. 1 Ohio St. 563; Bank of Toledo v. Toledo, 1 Ohio St. 623; Cummings v. Fitch, 40 Ohio St. 56, 62; Cleveland v. Heisley, 41 Ohio St. 670, 676; State v. Plumphreys, 25 Ohio St. 520; Sec. 2834 Rev. Stat.
    No emergency clause in the constitution. Bonham v. Hamilton, 66 Ohio St. 82 [63 N. E. Rep. 597]; State v. Spellmire, 67 Ohio St. 77, 90 [65 N. E. Rep. 619],
    Tax levies. Sections 964a, 2822, 2823 and 2824 Rev. Stat.; State v. Strader, 25 Ohio St. 527, 536.
    The county expense fund is provided for only in Sec. 2823 Rev. Stat.
    The bridge fund is provided for by Sec. 2824 Rev. Stat.
    The excess over the lawful levy may be enjoined. Burroughs, Taxation 399; Cooley, Taxation 347; 25 Am. & Eng. Enc. Law (1 ed.) 191.
    Addition to levy was invalid. Wheeling & L. E. Ry. Co. v. Stewart, 7 Circ. Dec. 193 (13 R. 359) ; Sec. 2825 Rev. Stat.
    The levy under Sec. 2823a Rev. Stat. after its repeal was void. Hirn v. State, 1 Ohio St. 15; Cass v. Dillon,. 2 Ohio St. 607.
    Section 16, Art. 2 of the constitution is directory merely. Miller v. State, 3 Ohio St. 475; State v. Covington, 29 Ohio St. 102; Bloom v. Xenia, 32 Ohio St. 461, 463 ; Seeley v. Thomas, 31 Ohio St. 301.
    Section 2823a Rev. Stat. was unconstitutional. Hixson v. Burson, 54 Ohio St. 470, 481 [43 N. E. Rep. 1000]; New York, C. & St. L. Rv. Co. v. Kistler, 66 Ohio St. 326, 332 [64 N. E. Rep. 130] ; State v. Michael, 12 Dec. 674; State v. Bargus, 53 Ohio St. 95 [41 N. E. Rep. 245] ; State v. Yates, 66 Ohio St. 546 [64 N. E. Rep. 570]; Gaylord, v. Hubbard, 56 Ohio St. 25 [46 N. E. Rep. 66] ; Commissioners v. Rosche Bros. 50 Ohio St. 103 [33 N. E. Rep. 408] ; State v. Ellet, 47 Ohio St. 90 [S3 N. E. Rep. 931]; State v. Brown, 00 Ohio St. 462 [54 N. E. Rep. 525] ; Root v. Board of Education, 52 Ohio St. 589 [41 N. E. Rep. 135] ; Pittsburgh, Ft. W. & C. Ry. Co. v. Martin, 53 Ohio St. 386 [41 N. E. Rep. 690] ; Barbour v. Bank, 50 Ohio St. 90, 94 [33 N. E. Rep. 542; 20 L. R. A. 192] ; Meyer v. Dempsey, 62 Ohio. St. 637; Botefuhr v. Leffingwell, 11 Circ. Dec. 650 (2Í R. 584) ; Cincinnati v. Trustees, 66 Ohio St. 440 [64 N. E. Rep. 420] ; Sec. 2, Art. 12, Const.
    Repeals are to be interpreted by considering the mischief intended to be remedied. (In this case it was trying to remedy special legislation.) When the whole subject of legislation is intended to be revised (as when the code was adopted), and restated and intended as a substitute for former acts, all laws in conflict are repealed. Section 2823a Rev. Stat. which was repealed, was in conflict with the new code, and therefore had to be repealed. 12 Mass. 545; Sutherland, Stat. Constr. Sec. 155; 5 Hill 221, 226.
    E. L. Taylor, Jr., A. T. Seymour and K. T. Webber, prosecutors, for defendants.
   SULLIVAN, J.

This is an action brought by Ellis O. Jones against the board of commissioners, Ewing Jones, county auditor, and W. G. Bowland, county treasurer of Franklin county.

Omitting the averments of the petition setting forth the official capacity of the several defendants and proceeding at once to state the substance of the several averments, upon which plaintiff claims the relief he prays for upon behalf of himself and other taxpayer’s of Franklin county, Ohio, which are as follows: ,'

First, that the population of Franklin county on June 3, 1903, was 164,000.

That the tax valuation of all property of said county was more than $80,000,000, ánd less than $100,000,000, being about $90,000,000.

That said county commissioner on said date made a tax levy of five and eighty-five hundredths mills, on the taxable value, of all property in Franklin county, by the adoption of a resolution by said board — one-half of the tax to be paid December 20, 1903, and the last half June 20, 1904, and in which was included levies for the following purposes:

(1) Two and four-tenths mills county purposes.

(2) One and four-tenths mills for bridge fund.

(3) One and forty-five hundredths mills for payment of bonds and interest.

That the foregoing, together with other levies for the various purposes designated in the resolution, made the total five and eighty-five hundredths mills upon all the taxable property of Franklin c.ounty for the fiscal year of 1903. No other levies were made for said year.

It is averred that the defendant (county auditor) is preparing a tax duplicate for Franklin county, and that he will make up a complete list of all taxable property in said county in the form of a tax duplicate, and under said resolution levy upon all such property said five and eighty-five hundredths mills, and will determine the amount of taxes which may be assessed and levied against each dollar of valuation of such taxable property, including plaintiff’s (thereby casting a cloud upon the title to all of said taxable property), and when complete will deliver said duplicate to the defendant (county treasurer) for collection, who will proceed to collect the same. Whereby the plaintiff and all other taxpayers of said county will suffer irreparable injury.

It is averred that said levy was made under Sec. 2823a Rev. Stat.; that said levy is illegal, unconstitutional, fraudulent and void, for the following reasons:

1. Because the section under which said levy was made was repealed by the general assembly of Ohio on October 22, '1902.

2. That said section was a special act relating alone to Franklin county, and hence in contravention of Sec. 26, Art. 2; Sec. 1, Art. 13; Sec. f>, Art. 10; and Sec. 5, Art. 12 of the constitution of the state, because said act conferred corporate power, and the subject of taxation is of a general nature and said section is not legislative, but judicial and administrative; that the several items of said levy hereinbefore set forth exceed the authority of the statutes in force at the ti'me the same was made, and that no emergency existed at the time.

Plaintiff therefore prays that said auditor be enjoined from making the duplicate above described and delivering same to the county treasurer, and the latter be enjoined from collecting said illegal levy, or so much thereof as may be in excess of the power of the county commissioner to make.

That said excessive levies may be declared illegal and void, and for such other and further relief that plaintiff and other taxpayers, upon the, facts shown, may be entitled to, and upon the final hearing that said injunction, to the extent of said excess, might be made perpetual.

The-petition in effect assails the entire levy, but as counsel for plaintiff, in argument, insisted upon such relief as might be granted, should relate only to and affect the three several items above stated, they have alone been considered. To this petition a general demurrer is filed. Counsel for defendant concede that no levy can be made by the commissioner not authorized by express statute, so that the inquiry is whether the statutes in force at the time the levy was made authorized The amount of levies made for the several purposes above mentioned.

In support of the demurrer, counsel for defendants insist that Seci 2823a Rev. Stat., under which said levies were made, is not repealed by the act of October 22,1902, though it appears among the repealed sections, for it is manifest from the title of the act of October,-1902, that its appearance in the list of repealed statutes is a mistake. The title of the act of October 22, 1902, 96 O. L. 20, reads as follows: i

“An act to provide for a reorganization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent the abuse of such powers, as required by the constitution of Ohio, and to repeal all sections of the Revised Statutes inconsistent herewith.”

There are 231 sections contained in the act, each section representing a different subject in municipal - affairs, and counsel for defendants contend that Sec. 2823a Rev. Stat. neither relates to nor affects any affair pertaining to municipalities, and therefore not inconsistent with any of .the provisions of the act of October 22,1902, and hence furnishes an additional fact in support of their claim that the repeal -of Sec. 2823a Rev. Stat. was a mistake; that Sec. 2823a Rev. Stat. bore no relation to the conditions which the general assembly sought to relieve, but related solely to the power of the county commissioners of Franklin county to levy a tax and appdrtion the same, and therefore is not inconsistent with any provisions of October 22, 1902. Hence it cannot be said it was included in the title to the latter act.

We have had a judicial construction .of Sec. 16, Art. 2 of the constitution, which provides that:

“No bill shall contain more than one subject, which shall be clearly expressed in the title.”

It is only necessary to call attention to one case, as that fully amplifies the judicial construction given the section and the recognized reason for such construction. State v. Covington, 29 Ohio St. 102, 116:

“The provision of the constitution is directory, and not ■mandatory. * * * This is a rule of decision, and is based on grounds of expediency. The rule is amply recognized by all courts of law, and the reason of the rule is this, that less injury results * * * by disregarding than by enforcing the letter of the law.”

So that if Sec. 2823a Rev. Stat. was not inconsistent with any of the provisions of the act of October 22, 1902, yet the fact that the intention to repeal it was not expressed in the title of the bill could not be considered as supporting the claim that its repeal was a mistake. The power of the legislative body to repeal an act must be conceded, though no reason be assigned for the repeal, or if one is given, and it appears wholly insufficient, the repeal is still just as effective. We think therefore, though said section may not fall within the class of those inconsistent with the act of October 22, 1902, yet that fact could not be sufficient to supply the requirement of the rule observed by courts in correcting mistakes in statutes, which is as follows : The claimed “error * * * must appear beyond doubt from the face of the act, or when read in connection with other acts in pari materia.” State v. Archibald, 52 Ohio St. 1, 9 [38 N. E. Rep. 314].

1 Section 2823a Rev. Stat. is repealed by reciting the full substance of 'the section (9G O. L. 104), which alone would seem a sufficient answer to defendant’s claim, that its repeal was a mistake, and a sufficient reason for the court declining to consider the question, whether the act was not inconsistent with any of the provisions of the act of October 22, 1902. But can it be said that it is not inconsistent? Under Sec. 860 Rev. Stat. the city' of Columbus is not entitled to demand any part of the bridge fund levied by the county commissioner, arising from the levy upon the taxable property of the city. Act 96 O. L. 21, Sec. 7, Par. 18, confers power upon «council to control, improve, keep in order and repair, streets, bridges, etc., within the municipality; 96 O. L. 31, Sec. 28, provides that council shall have the care, supervision and control of public highways and bridges within the city, and shall keep them in repair; and 96 O. L. 26, Sec. 9,, authorizes a levy for such purposes. It would seem, from these several sections of the code, that repair of bridges and public roads and. perhaps construction of same, within the city limits and raising funds for such purposes, was to be transferred to the municipality, and if so, to this extent at least Sec. 2823a Rev. Stat. would be inconsistent with the provisions of the code cited.

Act 96 O..L. 21, Sec. 7, Par. 18 of the code expresses no distinction as to bridges already constructed and those constructed after the code went into effect, so that it would seem that the entire burden at least of keeping such structures in repair within municipalities would rest alone upon them. Whether Sec. 2823a Rev. Stat. is inconsistent with any of the provisions” of the code would be- a matter of judgment alone and a question upon which perhaps there might appear strong reasons for á difference of opinion between members of the legislative body, but that a conclusion to repeal it was reached after a consideration of the section, there seems no reasoii for doubt, and hence the repeal' was not through inadvertence or mistake.

This brings us then to the next question. If Sec. 2823a Rev. Stat. was repealed, what, if any, authority did the commissioners then have to levy a tax for the several purposes contained in the resolution of June 3, 1903? Section 2823a Rev. Stat. and the amendment thereto of April, 1902, was a supplementary act to Sec. 2823 Rev. Stat., and it provided that no levies specifically authorized by statutes should be included within the limits fixed in the supplementary act, and therefore it did not repeal Sec. 2823 Rev. Stat. By the latter section they are authorized to levy for 'county purposes seven-tenths of a mill, and under Sec. 2824 Rev. Stat'., for bridges, five-tenths of a mill, and Sec. 2823 Rev. Stat. provides that -whenever, in any county, the levy provided for in the first part of Sec. 2823 Rev. Stat., is deemed insufficient for general county purposes, the commissioners may increase said levy by any amount not exceeding six-tenths of a mill on the dollar valuation, but in such cases the levies for other purposes shall be reduced to the same extent, so that the total levies for all purposes shall not exceed the limits provided in the title and chapter in which said section appears. The 'limits for all purposes in the 'chapter is one and eight-tenths mills, except where it becomes necessary to levy an additional tax to repair or rebuild county infirmary buildings, children’s home buildings, etc., that may have been destroyed by fire or other casualty and then the amount raised should not exceed $10,000.

The .one and eight-tenths mills are divided as follows:

County purposes, seven-tenths of a mill.

Infirmary purposes, six-tenths of a mill.

Bridge purposes, five-tenths of a mill.

Counsel for plaintiff contend that when the commissioners levy six-tenths of a mill provided for by Sec. 2823 Rev. Stat., because the levy of seven-tenths of a mill is insufficient for general county purposes, and made levies for any other purposes provided for by Secs. 2823 and 2824 Rev. Stat., that to the extent of six-tenths of a mill such levies must be reduced, and that the commissioners not having made any other levy, under chapter five, but for county general expense fund and bridge fund, therefore a reduction should be made in the bridge fund. We do not so understand these sections of the statute.

Under Sec. 2823 Rev. Stat., commissioners are authorized to levy for infirmary purposes, six-tenths of a mill. They did not make such levy in this instance, and the levy for county purposes and the bridge fund and the six-tenths of a mill provided for in the concluding provisions of Sec. 2823 Rev. Stat., did not exceed the amount of levy the commissioners were authorized to make. We understand that the purposes of the provision in Sec. 2823 Rev. Stat, providing for the reduction of other levies when seven-tenths of a mill for county purposes has been made and the commissioners should levy the six-tenths of a mill in addition, is to prevent the county commissioners from exceeding the limit of the levies for all purposes provided for in chapter five. Therefore the commissioners were authorized to levy for county purposes one and three-tenths mills, and for bridge purposes, five-tenths of a mill, to which rate these two several levies will be reduced.

Counsel for plaintiff contend that the levy of one and forty-five hundredths mills for the bond redemption fund will yield a sum largely in excess of that required to pay the maturing bonds and interest thereon maturing in the year 1904. He claims that the estimate made by the county commissioners, including interest and the amount of such bonds, is $113,530, but that the levy made will yield a sum of over $130,500.

The petition does not set forth the amount of the face and accruing interest of the maturing bonds of 1904, and as the question presented here is on the general demurrer to the petition, and as to whether the amount claimed by plaintiff is correct is a question of fact, so that the court in considering the general demurrer in the petition cannot pass upon the question.

We are therefore of the opinion that the judgment of the court below upon the demurrer Was correct, and the same judgment will.be entered here, at defendant’s costs. In view of these conclusions, the claim that Sec. 2823a Rev. Stat. was unconstitutional becomes wholly immaterial and therefore unnecessary to be determined.


source: Caselaw Access Project

author: LAUBIE, J.

license: Public Domain

text:
    HEALTH — PESTHOUSE—NUISANCE.
    [Mahoning (7th) Circuit Court,
    October Term, 1903.]
    Laubie, Cook and Burrows, JJ.
    Youngstown Township (trustees) et al. v. Youngstown (city) et al.
    1. Pesthouse Near Public Road and Schoolhouse a Public Nuisance, When.
    A smallpox hospital established in 1878 under the act of March 23, 1875 (72 O. L. 77),_ by a municipality, outside of the corporate limits but within the township in which the municipality is located, on a lot facing a public highway, but over 250 feet back therefrom, and then, and frequently thereafter, used for such purpose, will not be abated as a public nuisance, although dwellings have been erected adjacent to said lot since such hospital was established, together with a large township schoolhouse built on such highway directly opposite such lot.
    2. Specific Acts Abatable as Nuisances Create no Right to Have Pesthouse Abated.
    The fact that the refuse of table and kitchen of said hospital is deposited on such lot near to such pesthouse, and accessible to the dogs and cats of the neighborhood, and that nurses and convalescents are permitted to occasionally promenade such highway, creates no right to have such pesthouse itself abated as a nuisance, as such acts may be prohibited by injunction upon proper, application.
    3. Erection of Additional Building for Pesthouse Will be Restrained, When.
    The erection of an additional building for such hospital purposes on such lot, within fifty feet of such highway, and directly opposite such schoolhouse, by such municipality, will however be restrained as a public nuisance.
    Appeal from court of common pleas.
   LAUBIE, J.

This case is brought for the purpose of abating an alleged nuisance —a pesthouse — which the city of Youngstown established outside of the municipality.and within the limits of the township; and in addition thereto plaintiff asks for an injunction to restrain the city and its board from erecting upon the premises in question an additional pesthouse.

So far as the first proposition is concerned, it appears from the evidence that the city obtained this lot and building for a pesthouse, or smallpox hospital, and not as a mere quarantine, and established the same and obtained the deed therefor in 1878. At that time the statute of the state (act of March 23, 1875, 72 O. L. 77) authorized municipalities to establish pesthouses either inside or outside of the limits of the municipality without any restrictions whatever. Counsel for defendants called our attention to a subsequent act, that placed some restrictions upon the power of a municipality. But as that act does not relate to pesthouses or smallpox hospitals, but only to permanent quarantine establishments, we think it has no application to this case.

This property was obtained for the purpose stated, and the pesthouse is nearly 300 feet back from the highwa}'- and was established before the neighborhood was in anywise thickly populated, and before the location of the schoolhouse that was erected by the township on the opposite side of the road. It is immaterial whether the township-trustees had actual notice of this or not. They were bound to take notice of it, and therefore must be considered as having erected their schoolhouse with notice that an the opposite side of the road, on the lot referred to, the city had established a pesthouse, authorized by law, and the)1' cannot, at this late day, ask to have that pesthouse abolished as a nuisance.

The fact that refuse of table and kitchen was deposited where dogs and cats of the neighborhood could reach it, and that nurses and convalescents were permitted to promenade such highway occasionally, would not be ground sufficient to authorize the abatement of.the pesthouse itself as a nuisance, as such acts could be restrained by injunction, upon proper application.

This does not, however, deprive the plaintiffs of the right to have the city enjoined from erecting the building which it threatens now to locate upon the lot.

By the answer of the defendants, they claim a right to build this addition or separate building, and allege that they are going to do it, and erect it within fifty feet of the highway directly opposite to the schoolhouse in question, where the school children of this township attend school.

So far as this proposition is concerned we think that it would be highly dangerous to the neighborhood and to the people living in the township and the children attending school at this place, to permit this building to be erected so near to this highway and the schoolhouse in question.

We look at this as a separate and distinct proposition from the first, wherein the plaintiffs seek to prevent the city from using the old building at the rear end of the lot for the purpose specified. We say that while the plaintiffs cannot have the pesthouse as maintained in the old building abolished as a nuisance, yet it would be an insufferable nuisance to permit the city to erect a building for the purpose designated, within fifty feet of a very extensively traveled highway and much nearer such schoolhouse and dwellings which have been erected during the years when the pesthouse was not maintained, and for these reasons the injunction, so far as the erection of this building is concerned, is 'granted, and the order made as asked for in the petition.

We think because the city did obtain the present building and established therein and maintained, whenever required, a pesthouse or hospital for smallpox patients, that this did not give the city a right to erect on the same lands another building for a pesthouse so near' the highway as to be dangerous to the public, against the protest of the township trustees.

The order therefore will be, that the city shall be enjoined from attempting in any way to erect a building on the site proposed, and the order will be made, as I have saisl, in conformity with the prayer of the. petition in this respect, and at the cost .of the city of Youngstown.


author: HULL, J.

text:
    MASTER AND SERVANT — NEGLIGENCE—TRIAL.
    [Lucas (6th), Circuit Court,
    October 10, 1903.]
    Parker, Hull and Haynes, JJ.
    Anna S. Kracht v. Lake Shore & M. S. Ry. Co.
    1. Master's Duty to Provide Safe AVorjong Place and Establish Rules to Protect Servant from Danger.
    The master is bound to use ordinary care to provide a reasonably safe place for his servants to work and to establish reasqnable rules or regulations whereby the servant may be guarded and protected against danger and injury incident to the performance of his duties. Hence, where a servant is ordered, either by general or special direction, by the foreman of his department to repair a car in which work it is necessary to raise the same and place it on supports for the purpose of removing the trucks, and while engaged in such repair it is necessary for the servant, along with others, to work underneath the car as thus raised and sit upon the ground at one end thereof with his eyes directed to the floor of the car above him in order to see what he is doing, and while he is so at work, other servants are also engaged in the same work at the other end of the car, and in the course of making the repairs it becomes necessary to have such other end of the car raised and the supports thereunder taken out, and while engaged in his work in such position the servant could not see and did not know what was going on at such end, the master is charged with knowledge of the dangerous situation and -the known and apparent danger to the servant by the raising and falling of the car, and it is a question for the jury whether or not it is the master’s duty, while such work is going on, to have some one out from under the car, or provide some other method, to give timely notice or warning to the workmen under the car that the same was about to be raised. In such case the master may be liable fpr the injuries sustained by the servant by reason of the car falling upon him, notwithstanding the combined negligence of fellow servants in raising the car.
    2. Not Negligence per se to Engage in Dangerous Work — What are Proper Questions for Jury.
    It was not negligence as a matter of law for a servant, who was experienced in such car repairing, to remain at his work under the car, unless he had notice that the car was about to be raised; but where there was a conflict in the evidence as to such notice the question whether or not the servant was negligent and the question as to the duty of the master under the circumstances, to make rules or other provisions for giving notice or warning of what was about -to be done by the workmen at the other end of the car should have been submitted to the jury; and it was improper for the court to take the case from the jury and direct a verdict for the defendant.
    Error to the court of common pleas.
    E. L. Twing, Esq., for plaintiff.
    E. D. Potter, Esq., for defendant.
   HULL, J.

This action was brought in the court of common pleas by the plaintiff in error, who was plaintiff in the court below, as administratrix of her husband's estate, to recover damages for the death of her husband, caused —as claimed by the plaintiff — by and through the negligence of the defendant railway company. At the conclusion of plaintiff’s testimony, on motion of the defendant, the common pleas court directed the jury to return a verdict in favor of the defendant. After the overruling of a motion for a new trial, judgment was entered on that verdict in favor of the railway company, and it- is to reverse that judgment that a petition in error was filed in this court. The case raises the question of the duty of the railway company in the premises and whether the evidence offered by the plaintiff showed any negligence on the part of the railway company; and, further, whether it showed that the deceased was guilty of such contributory negligence as would bar a recovery by his adminis-tratrix for his death.

The accident occurred in September, 1901, at which time Kracht was in the employ of the railway company, as a car repairer, and had been employed in such work for some time prior to the accident. He was a man of ability and of experience in the performance of that kind of work; there is no claim that he was inexperienced. It was a portion of his duties to aid in the repair of cars which were in the yards of the company; and, for the purpose of repairing these cars, there was a side track upon which such cars were run and left standing near Air Line Junction in the city of Toledo, and after the cars were run upon this track, if they needed repairs that necessitated the taking of the trucks out from under them, they were “jacked up” as it is called, and the body of the car was set op heavy barrels, and after the trucks had been taken out, if repairs were necessary to the bottom of the car, men would go under the car to make those repairs. In this case, Kracht and three other men were directed to make repairs upo~ a car. The car was jacked up in this way— Kracht assisting in doing it — and after the body of the car had been raised'' sufficiently, both ends of the car were set upon heavy barrels — a barrel under each corner, and timbers extended across the barrels — and thus the body of the car rested and the trucks were taken out.

There was something out of repair underneath this car, the nuts on the bolts needed tightening, and also something out of repair at one end, and some apparatus was out of repair, situated about the middle of the car underneath. After they got the car upon the barrels, Kracht and a man named Buck, another employe, went under the car to work, near the west end of the car, perhaps* two or three feet from the end. Two other meta were working near the middle of the car, repairing the truck apparatus. After they had been at work for some time — having commenced to work in the morning — the foreman came to them and inquired whether they were going to get the car “fixed” that day, and some of the men said they thought they would; but the time went on and they did not get it finished and the foreman came again, and for some reason, it seemed to be desirable to' have the car repaired that day, so the foreman, - in the afternoon sent three other men. to aid in the repair of the car, had told them to assist, saying to them, and perhaps to all of them, to be careful and not to. get hurt.

.These three men first repaired the end board of the car, at the west end, which work occupied them but a few minutes. After that they went to the east end of the car — which had been also jacked up and was resting on barrels at each corner- — and, procuring jacks, proceeded to raise that end of the car, Kracht and Buck being at work under the other, end of the car which was thirty-five to forty feet lo-ng. Perhaps only two of the men went to the east end. After they had jacked up the car at the east end and had taken out the barrels and timbers, according to the weight of the testimony, they then undertook to put the truck under the body of the car, and just as th$y had gotten 4 very little of it under the body of the. car, for some reason, which is not very clearly shown in the record, the car slid, or “slewed,” as stated by some of the witnesses, to the north. The record does not state just how many feet this car was from the ground, but it was so near that the men who were working ünderneath it sat on the ground and did thei” work of tightening the bolts and the other work in that way; it was probably about four feet from the ground. The car, just as they got the edge of the trucks under it, slid to the north — the northwest corner of it, near where Buck and Kracht, the decedent, were working also, sliding to the north. These four men were still all working under the car. Kracht nocked that the car was falling and called 'out to “Look out! The car is falling,” or that in substance. Buck, who was working at his side, leaped to the south and the two men near the middle sprang out, and those three escaped. Kracht undertook to escape towards the north, but the car slid in that direction and fell upon him and he was so injured that he died within two or three days afterwards.

It was claimed by the plaintiff in her petition and upon the trial of the case, that Kracht was in the line of his 'duty at this time and that without any negligence on his part, he wa's injured in the manner described and that the railway company was negligent and liable, on account of that negligence, which is stated in her petition as follows: That the defendant — •

“Well knew, or by ordinary care could have known, that decedent and its other employes would necessarily work unc[er said and other cars while so resting on said barrels, yet defendant was careless and negligent in the premises, in that, that it failed and neglected to make reasonable ’.provision and regulations for the protection of decedent, and its other employes,, against the danger of having said car raised, moved, or in any wise disturbed while said car was resting on said barrels, and while the decedent, and its other employes, were working thereunder, and in failing to provide that notice or warning should be given to those under said car when the same was about to be raised, moved, or in any wise disturbed, and in failing to make an)' reasonable provision for decedent’s protection while he was at work under' said car, and to guard him against the danger of said car being thrown upon him.”

The defendant denied all allegations of negligence and alleged that if the decedent sustained any injury by reason of the negligence of am-one other than himself, it was the- negligence of fellow servants — coem-ployes in the same common service' — for which the defendant could not be held responsible, and set up, further, that whatever injury he had sustained was on account of his own negligence. So that the question presented is, whether the evidence which was offered by the plaintiff, tended to show negligence on the part of the railway company, or failure of duty on the part of the railway company towards this employe in any respect; and, whether, if this were true, there was evidence which showed that the decedent was guilty of contributory negligence which would prevent a recovery. It is claimed by the plaintiff, as set forth in her petition, that it was the duty of the railway company to protect the decedent, Kracht, against such an accident as this, while he was under the car at work; that either the foreman, or some one, should have been on the ground to notify him in case the car was raised at the other' end, to notify him that that was being done, so that he might get out, and that it was the duty of the railway company to have provided some rule or regulation requiring’ such notice to be given to men at work under cars in this manner, before the car or any part of it, was raised; and it is claimed that the failure to provide either of these things was negligence.

It is claimed by the railway company, that this was an ordinary piece of work, the repairing of this car, a very common piece of work; that Kracht had been engaged at such work for a long time; that the fact that the car might possibly fall, was known to him and that the company was not under obligation to have such rules as these, or to lmve any one posted outside of the car to call out to the men underneath the car in a case of peril of this kind; and it claimed further, that this was one of the assumed risks of the work in which Kracht was employed, he knowing the danger when he did that work; and, further, that Kracht himself was guilty of contributory negligence in this, as claimed, that the record discloses that Kracht knew that these men who came to assist had gone to the other end of the car, and that while there they would raise the car, jack it up and take the barrels out and put the trucks under. It is claimed that Kracht had full knowledge of this from what was said there and done there aside from his knowledge of the work, and that he voluntarily remained under the car with this knowledge, and therefore assumed the risk himself and took the chances of injury, and, instead of getting out from under .the car or keeping watch to see when the men undertook to put the trucks under the car and getting out from under the car then for his safety, it is said that he remained under, knowing that this was being done, and that he therefore assumed the risk and contributed directly to whatever injury he suffered. ' .

The court found under the evidence offered by the plaintiff that plaintiff could not recover; that there was no evidence tending to show liability on the part of the railway company that there was no duty resting on the railway company to make any such rules or regulations or to keep watch as claimed by the plaintiff.

We have read the record through very carefully, and it appears that when these three men left the west end of the car, according to some of the testimony offered, some one said that they would go to the other end of the car and do what was necessary to be done there; and that was heard by some of the men — perhaps by some of the men working under the middle of the car — or one of them, and it is claimed, on the question of contributory negligence, that Kracht must have heard this and known it. But Buck, who was working by the side of Kracht and only a few feet from him, testified that no notice was given to him that the men at the other end of the car were about to jack it up and put the trucks under, that he had no knowledge that they were about to do anything of that kind, and that he did not hear anything said by the men about going to the end of the car to do anything of the kind; and the weight of the testimony is that it was customary when work of that kind was done at the end of the car, with men under it, for the men to get out from under the car; and Buck testified that if he had known they were about to do this or anything else of this kind at the other end of the car, he would have gotten out and not have remained under it. Kracht is dead and cannot testify as to whether he knew what these men were doing at the other end of the car ór not. But the man who was at work beside him testified that he knew nothing'about that; that he had no notice or. knowledge, and that, so far as he knew, Kracht had no knowledge. They were both at the time with their backs towards the east end of the car where this work was going on, sitting on the ground and looking up at the floor of the car over their heads and Kracht was engaged in tightening nuts on some bolts directly over his head, looking at them and intently engaged at his work. It seems to us that it cannot be held as a matter of law that Kracht was guilty of negligence contributing to his injury in not knowing or seeing what was going on at the other end of the car. We think thát we could not, and ought not as a matter of law, to hold that Kracht had knowledge of what was going on there; that was a question to submit to the jury, under all the circumstances. If the jury should find that he did have knowledge, and staid under the car, taking his own risk, the court could not say that the jury were not warranted in so finding; but there was the evidence of Buck tending quite strongly to show that he had no such, knowledge or notice.

' As to the duty of the railway company, whether there was any duty imposed upon it to care for him and to guard him against such injury while he was under the car, or to have a rule of some kind to provide for this, the general rule, well established, is that the employer is bound to furnish his employes a reasonably safe place in which to work and is bound to exercise ordinary care in that respect and that the employe does not assume the risk consequent upon the failure of the employer to perform this duty. The question here is, whether there was any evidence tending to show that the railway company had failed in its duty to exercise ordinary care in furnishing a reasonably safe place for Kracht to work. He was directed by a foreman — either by special or general direction — to repair this car. In order to do so it was necessary for him to go beneath the car; it was-necessary to jack up the car as was done. This car weighed many tons, and to do this work properly it was necessary for Kracht to sit down on the ground under the car with his eyes directed towards the floor above him in order to see what he was doing; and while he was in that position he could not see or know fully what was going on at the other end of the car. It was necessary some time in the course of this work to have the other end of the car raised and these barrels taken out and the trucks put under. All this was known to the railway company and its officers and foreman. A Mr. Bay was the foreman, or assistant foreman, immediately in charge of this work. He was in the yard, or about there, but was not on the ground at this car when the accident occurred. He had directed these three men to go to this car and aid in the performance of this work and knew that in the doing of this work all these things would have to be done. Knowing the position in which Kracht and the other men were, he must be presumed to have known the danger of the car falling upon them in case the men undertook to move the car at one end while the men were under the car. The evi~ dence shows that liobod}^ had ever been hurt in this yard in this way before but it does not show that cars had not fallen in this manner before, but it tended to show that the men always got out from under the car before anything of this kind was done.

The leading case of Lake Shore & M. S. Ry. Co. v. Lavalley, 36 Ohio St. 221, prescribes the duty of the railway company where an employe is put to work in a place of peril. The second paragraph of the syllabus in that case is:

“It is the duty of a railroad company to make such regulations or provisions for the safety of its employes as will afford them reasonable protection against the dangers incident to the performance of their respective duties.”

And again, in the syllabus:

“That it was the duty of the foreman, in putting the hand to work under the car, to use reasonable care to protect him, while thus engaged, from the danger arising from the switching of cars and the making up of trains on the same track; and for an injury resulting from the want of such care, the company is liable.”

This was a case, as is well known, where a man was put tó work under a car in a yard where they were moving cars, and other cars were liable to run into this car, and while the man was there at work, another car was run into the car that Lavalley was working under and he was hurt- — Lavalley being a car repairer, and it was held that the railroad company was liable. The whole question is discussed fully in the opinion.

Another case bearing somewhat on this same question is Railway Co. v. Henderson, 37 Ohio St. 549. This is the syllabus:

“Where the superintendent of a railroad company has made an order as to the management of a particular train, which order will be reasonable or unreasonable according to the circumstances under which it is to be enforced, the question whether in any particular case such order is to be deemed reasonable or unreasonable is a question of mixed law and fact, to be determined by the jury under proper instructions.
“Where an action is brought against a railroad company by one of its employes to recover damages for personal injuries sustained by the enforcement of an order made by the superintendent of the compány, as to the management of a particular train, which order was unreasonable, and the enforcement of the same was dangerous to such employe, the fact that the negligence of a fellow servant of the injured person, while executing such order, contributed in producing the injury, affords no defense to the action.”

As is said in some cases, rules may be required, and are sometimes required, in the exercise of ordinary care and other precautions may be necessary for the purpose of protecting employes against the negligence of fellow servants. As in Lake Shore & M. S. Ry. Co. v. Lavalley, supra, it may be said that the employes who ran the car against the one undsr which Lavalley was working, were negligent, but this did not preclude a recovery.

In Dick v. Railway Co. 38 Ohio St. 389, the Supreme Court say, in the syllabus:

“As between employes of a railroad company, whose duty it is to repair its track while trains are using the same, and the company and its representatives, who are engaged in running trains over the same where the trackmen are so employed, it is the duty of the latter, as far as is practicable, to adopt such precautions as will guard its employes on the track from dangers incident to their employment.”

These questions are discussed in the opinion, and Lake Shore & M. S. Ry. Co. v. Lavalley referred to' and cited with approval. These are cases where an employe was injured by a moving car or a moving train. In our judgment, the principle is the same where an employe under a car is injured by reason of the car being moved or struck in any other way, if such a thing was liable to happen; it makes no difference whether it was a moving train or any other object or a person that moved the car, if the man was under it, or whether it was thrown down, as this was, or knocked over, if it was something that was liable to happen, if it was a thing that was imminent and impending while the man was under the car.

Lake Shore & M. S. Ry. Co. v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403] is in point. The man in that case who was killed was put at work upon a railroad track which was straight with the view unobstructed, and while he was at work there a train came along, struck and killed him. It was claimed that the railroad company should have made some provision to protect him while at work; should have had a rule requiring notice to be given, and should have had some one there whose duty it was to warn him of the approach of trains.. The Supreme Court held, as stated in the syllabus:

“It is the duty of a railway company to afford reasonable protection to its employes against dangers incident to their work. And if, under the circumstances of this case, a rule providing for warning was necessary, and by the exercise of reasonable care on the part of the company, that necessity could have been foreseen, it was the duty of the company to prescribe such rule. Whether it ought to have so provided or not, was a question for the jury.”

Upon the question of contributory negligence, the court say, in the last paragraph of the syllabus:

“The evidence as to contributory negligence on the part of deceased made a case which, at least, was doubtful, and about which different minds might differ as to the proper inference to be drawn. Such a question cannot properly be determined by the court as matter of law, and should be submitted to the jury.”

The question is fully discussed in the opinion. The court say, on page 14-3, Judge Spear delivering the opinion:

“Negligence is always an inference from facts put in evidence, as contrasted with a fact which is the subject of direct proof. The proof disclosed facts calling for logical, as distinct from legal, deduction. Where that is the case the question is for the jury, and not for the court. And, whether or not, under the circumstances of the case at bar, the company-should have anticipated the necessity, and exercised proper precaution, by prescribing a rule requiring warning, was clearly a question for the jury. Of like character was the question of contributory negligence. As matter of law the court could not say that it would not be the duty of the company to provide any means to warn men in that position of approaching danger, nor that, as matter of law, the deceased was negligent because he did not interrupt his work sufficiently to protect himself from approaching trains.”

It seems to us that Lake Shore & M. S. Ry. Co. v. Murphy, supra, was a stronger one for the railway company than the case at bar. Murphy, as I have said, was at work on a straight track and had an unobstructed view of the train which came down the track in broad daylight and struck him, but the Supreme Court held that he could not be presumed to have seen the train or to be guilty of contributory negligence. In the case at bar, Kracht was seated upon the ground under the car, with his eyes upon the floor of the car, intent upon his work, and the acts which resulted in the car falling upon him were going on at the east end of the car, behind him. And it seems to us that under the rule laid down in Lake Shore & M. S. Ry. Co. v. Murphy, supra, the court could not say that Kracht was guilty of contributory negligence, nor that the railway company was not guilty of any negligence in the premises. It is clear that if there had been some one on the ground to notify the men under the car that this work of raising the car was being done, that they would have gotten out from under the car safely. It is clear that if there had been a rule requiring notice to the men engaged under the car to get out whenever work of this kind was commenced, if the rule had been complied with, Kracht would have been saved. Whether ordinary care required such a provision or rule requiring the foreman to give the men notice,- or requiring some one to do it — whether ordinary care required that — we think was a proper question to submit to the jury. This was not a risk that Kracht assumed, if it was a danger caused by the negligence of the master; as was said by the Supreme Court in Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998] :

“A servant assumes only such'risks incident to his employment as will happen in the ordinary careful management of the business of the master; such as arise from the fault of the master are not assumed, and the servant may recover for injuries therefrom, unless his own fault contributed to the accident.”

In Rex v. Pullman Palace Car Co. 43 Atl. Rep. 246, 248 [2 Del. 337], Chief Justice Lore at the February term, 1891, in his charge to the jury in a negligence case, uses this language:

"This is a case of master and servant, and the rights, duties and obligations of that relation govern it. The primar)'- duties of the master are: First, to provide a reasonably safe place for the servant to work in or upon; second, to provide him with reasonably safe tools and machinery with which to do his work; third, to employ reasonably competent and careful coworkers and fellow servants; fourth, to promulgate proper rules for the government of such servant, in operating his business, where the extent of that business exceeds the limits of his personal supervision. The servant assumes no risk whatever as to these primary duties of the' master when he accepts employment; but he does assume all the ordinary risks of the employment, including therein, the negligence of his fellow servant.”

In Beach, Contrib. Neg. Sec. 304, the author says:

“AVhenever the negligence of the master, united to the negligence of the fellow servant, contributes to the injury, the servant injured thereby may recover from the common employer. The servant will not be held to have taken any chances of negligence on the part of the master, and it is believed that no case has gone so far as to hold that where such combined negligence contributes to the injury the servant may not recover. It would be both impolitic and unjust to allow an employer, under those circumstances; to evade the penalty of his misconduct in neglecting to provide for the security of his servant. Contributory negligence in order to defeat a right of action in such a case must be solely the negligence of the party injured, or the negligence of a coemploye unmixed.with any negligence or default upon the paft of the common employer.”

Upon the general principles involved in this case may be cited: Stockstill v. Railway Co. 24 Ohio St. 83; Kelly v. Howell, 41 Ohio St. 438; Wells v. Railway Co. 6 Circ. Dec. 137 (9 R. 340); Union Stock Yards Co. v. Conoyer, 38 Neb. 488 [56 N. W. Rep. 1081]; Union Stock Yards Co. v. Conoyer, 41 Neb. 617 [59 N. W. Rep. 950] ; O’Malley v. Railway Co. 113 Mo. 319 [20 S. W. Rep. 1079] ; Webb v. Railway Co. 49 N. Y. 420 [20 Am. Rep. 389],

It is clear that the place in which Kracht and the other three men were at work was a place of danger; and it was apparent that in the performance of the work it would be necessary to raise the other end of the car to put the trucks under; and, clearly, while that work was being done, it would be very dangerous for these men to remain beneath the car and if they were left there, they were in danger of being crushed by the falling of the car. It does not require expert testimony to show that where a car is rested upon barrels as this car was, to lift one end of it with jacks to put a truck under it might easily result in the car being tipped or slid over to one side, either by the ground sinking, the car slipping, or by one end being raised higher than the other, or in many ways, and for men to be under the car while that kind of work was going on, was extremely perilous. And we are of the opinion that the question whether the railroad company should have made provision to notify Kracht, if anything like this was to be done to the car, was a question to submit to the jury; and whether it was the duty of the railway company, through its foreman, to have either done that himself or to have had some one there in his absence, or whether a rule was necessary requiring notice to men under a car in a situation of peril such as this, was a proper question for the jury. The question whether Kracht was guilty of contributory negligence, was not a question to be determined by the court. The most that can be said is that the evidence on that point was conflicting. The rule in this state is, that where there is any evidence tending to sustain all the material elements of the plaintiff’s case, the court cannot withdraw the case from the jury but it must be submitted to them for their decision upon the questions of fact.

We are of the opinion that the court of common pleas erred in directing a verdict for the defendant in this case; that the motion to that end should have been overruled and the case submitted to the jury upon proper instructions as to the law, by the court. For these reasons the judgment of the court of common pleas will be reversed and the case remanded for a new trial.


author: COOK, J.

text:
    LIMITATION OF ACTIONS — MORTGAGES.
    [Monroe (7th) Circuit Court,
    November Term, 1903]
    Laubie, Cook and Burrows, JJ.
    Thomas Baird v. Isaac W. Ramsey et al.
    Statute of Limitation — Mortgage—Quieting Title.
    In an action 'to quiet title to- real estate against a' mortgage upon the same, given to secure a promissory note which matured more than twenty-one years before the beginning of the action, and upon which note a partial payment had been made and indorsed thereon more than sixteen years previous to the commencement of the action: Held, the plaintiff was entitled to a decree quieting his . title against such mortgage.
    Appeal from common pleas court.
    Moore & Jeffries, for plaintiff.
    Spriggs & Son, for defendant.
   COOK, J.

August 30, 1901, plaintiff filed a petition in the common pleas court to quiet his title to certain real estate which he claimed to own and be in the possession of, situated in this county. He set forth in his petition that the defendants claimed to hold a certain mortgage upon such real estate which was of record in the recorder’s office of the county uncancelled; that the same was invalid, and was a cloud upon his title.

The defendants answered, setting up, that on December 27, 1877, the plaintiff, his wife joining with him, duly executed and delivered to one Aaron F. Ramsey, the mortgage referred to in the petition of plaintiff, to secure a promissory note given by plaintiff for the sum of $2,216.13, payable December 24-, ISIS; that on July 29, 1884, the plaintiff made a payment upon said promissory note of $103.87, which was indorsed by said Aaron F. Ramsey upon said note of that date in the presence of plaintiff and at his request; that on January 17, 1889, Aaron F. Ramsey duly assigned and transferred the note and mortgage for value to Isaac Aaron Ramsey, Aaron Nolan and Aaron Ramsey Sharon, his grandchildren, who with their guardian, are the parties defendant to this action; and that by reason thereof they not only have a valid interest in the property, but are legally entitled to the possession thereof.

To this answer the plaintiff makes reply, denying that said payment was made; also denying the transfer of the note and mortgage, and further insisting, that if such payment and transfer were made, yet the rriort-gage is invalid and has no legal force and effect, as from the averments of the answer it is barred by the statute of limitations.

We find as a fact from the evidence, that the payment and transfer were made as averred in the answer, and that brings us directly to the question as to whether or not the claim of defendants in or to the property under-the mortgage is barred by the statute of limitations.

It will be observed that the payment was made more than fifteen years, but less than twenty-one, previous to bringing this action by plaintiff to quiet title; and further, that the note to secure which the mortgage was given matured more than twenty-one years before the bringing of the action. It is conceded, as it must be, that suit could not have been successfully maintained by defendants to foreclose the mortgage, as more than fifteen years had elapsed from the maturity of the note and also from the making of the payment. Kerr v. Lydecker, 51 Ohio St. 240 [37 N. E. Rep. 267; 23 L. R. A. 842].

It is insisted, however, that as less than twenty-one years had elapsed from the making of the payment, the defendants could maintain an action of ejectment, and therefore their answer is a valid defense.

That the mortgagee or his assignee might maintain an action of ejectment against the mortgagor after condition broken there is no question.

In the case referred to, Kerr v. Lydecker, supra, page 250, in the opinion it is said:

“After condition broken, the title is vested in the mortgagee, as between him and the mortgagor, and as the right of the mortgagee to recover the possession of the land by ejectment, always existed at common law, and has not been taken away by statute, it still exists in this state. Doe v. Pendleton, 15 Ohio 735; Allen v. Everly, 24 Ohio St. 97; Hibbs v. Insurance Co. 40 Ohio St. 543, 559 ; Rife v. Lybarger, 49 Ohio St. 422, 427.”

On page 251 it is said:

“A strict foreclosure, was, therefore, in no sense a recovery of either title or possession, because he already had the title vested in him, and the strict foreclosure did not give him possession.
“The same is true of a foreclosure and sale under the code. The right to redeem is cut off by the foreclosure, but no title is thereby recovered by the mortgagee, because the title, as between him and the mortgagor, is already in the mortgagee.”

In Doe v. Pendleton, 15 Ohio 735, 736, the leading case referred to is Kerr v. Lydecker, supra; it is decided:

"When the condition of the mortgage is broken as between the parties, the title to the mortgaged premises vests in the mortgagee, and remains in him until satisfaction.”

From these authorities it would seem that the law is conclusively set-tied in this state, that after condition broken, in this case from the maturity of the note, the title to the mortgaged premises as between the parties is vested in the mortgagee, and that at that time and from any time after-wards, the mortgagee might bring ejectment against the mortgagor to recover the premises.

It follows, therefore, necessarily, that the title to the premises having vested absolutely in the mortgagee on December 24,1878, that action must have been commenced within twenty-one years from that date to recover the possession of the mortgaged premises or he could not do so against the objection of the mortgagee; unless the payment made July 29, 1884, took the case out of the statute. Bradfield v. Hale, 67 Ohio St. 316 [65 N. E. Rep. 1008],

We do not think the payment could in any way affect the title. It might renew the note, so that foreclosure proceedings in equity might be prosecuted, for the period of fifteen years. On that question we express no opinion, but more than fifteen years had elapsed from the payment to. the commencement of the action.

How could the partial payment affect the title? Section 4992 Rev. Stat. provides:

“When payment has been made upon any demand founded upon contract * * * afi action may be brought thereon within the time herein limited, after such payment.”

The mortgage was in' no sense a contract for the payment of money. It was not a demand founded on contract, but a security for the payment of the note; a deed with a defeasance which became absolute upon the nonpayment of the note. The title to the property vested immediately upon failure to pay the note, and the mortgagor could only regain the title by its full satisfaction. If, by partial payment the title again becomes yested in the mortgagor how long does it so continue; after payment does it go back again to the mortgagee? If so-, upon every payment the title changes twice, which leads to an absurdity. We do not think that Sec. 4992 Rev. Stat. has any relation to the vesting or divesting of the legal title to the premises described in the mortgage.

No question has been made as to the effect of the transfer of the note and mortgage to the defendant, and we cannot see that it has any effect-upon the title of the premises whatever; they have the same legal rights as the original mortgagee, and are affected with the same legal liabilities.

The plaintiff is entitled to have his title quieted in the premises. Decree accordingly.


author: DAY, J.

text:
    ELECTIONS — MUNICIPAL CORPORATIONS — INTOXICATING LIQUORS.
    [Logan (3rd) Circuit Court,
    March, 1903.]
    Norris, Day and Mooney, JJ.
    Huntsville Local Option Election, In re.
    1. Conditions Precedent and Jurisdictional Facts Must Affirmatively Appear Before Ordering Beal Law Election.
    An election under the act of April 3, 1902 (95 O. L'. 84; Sec. 4364120 Rev. Stat. ct seq., commonly called the Beal law), cannot be ordered by a municipal council until a petition signed by at least forty per cent, of the municipal electors has been presented to council requesting the holding of an election to submit the question of the sale or no sale of intoxicating liquors within the municipality. Such petition is a condition precedent and jurisdictional to the exercise of such power by the council, which will not be presumed from the fact that an election was held, but must affirmatively appear from the council record, or the election will be void. But where such jurisdictional facts do so appear, the presumption is that the order for the submission of the question was properly made, unless the proceeding was so irregular and erroneous as to invalidate it.
    2. Record Affirmatively Shows Jurisdictional Facts, When.
    Such jurisdictional facts affirmatively appear from the council record, although there is no formal finding that forty per cent, of the municipal electors signed the petition, where the record shows that a petition for such election was presented to council; that the council took action by appointing, on motion made for such purpose, a committee to investigate the petition and report the facts; that such committee did investigate and reported that forty per cent, of the ■mpnicipal electors had signed .the same; that such report was accepted and acted upon by unanimous vote of council, and an order made appointing the date for holding the election. Under such a record, an objection that no formal finding was made as to the number of electors signing the petition, is not of the essence of the proceeding, but purely technical.
    Error to the court of common pleas of Logan county.
    James Kernan and J. A. Price, for plaintiff.
    S. H. West and West & West, for defendant.
   DAY, J.

On August 4, 1902, an election was held in the village of Huntsville, Logan county, Ohio, under the provisions of the Beal municipal local option law (act of April 3, 1902; 95 O. L. 84; Sec. 4364-20 Rev. Stat. et seq.). On the face of the returns the proposition to prohibit the sale of intoxicants was carried by a majority, slightly attenuated but sufficient, if the proceeding was conducted in accordance with law so as to be valid -and effective.

A contest of said election was instituted in the probate court to- have it adjudged void and invalid on the grounds: First, that there was no mayor of said village qualified to make a proclamation of. said election, as required by law; second, that forty per cent, of the qualified electors of said village did not petition the. council for the privilege of determining by ballot whether the sale of intoxicating liquors as a beverage should be prohibited in said village, and that the council never found or determined that forty per cent, of said electors had signed such petition; third, that a majority of the votes cast at said election were not against the sale of intoxicating liquors as a beverage; and, fourth, that the statute under which said election was held is contrary to the constitution of the state of Ohio and invalid.

On August 20, 1902, the probate court of this county after hearing all of the evidence and argument, gave judgment against the contestors and in favor of contestees, sustaining the election, and held said election in all respects according to law and valid; and the court overruled a motion to set aside the finding and judgment and for a new trial. The contestants secured a bill of exceptions, containing all of the evidence and the rulings of the court admitting and excluding evidence on the hearing. Error was prosecuted in the common pleas»court, and upon the hearing there the finding and judgment of the probate court was affirmed. Error is prosecuted here to reverse the judgment of both the lower courts.

There is a general assignment of error in the petition in error, viz., that the lower court erred in affirming the findings and judgment of the probate court.

In the lower court the unconstitutionality of the so-called Beal local option law, and that there was no qualified mayor to make the proclamation to the voters was urged and insisted on, but in this court while they are not abandoned entirely, they are waived so far as this court is concerned, with the statement of counsel for plaintiff in error that the Supreme Court has upheld a similar law as against the charge of invalidity, and that the mayor of the village of Huntsville, did, in fa'ct, make the necessary proclamation. ■

Under the provisions of the law, forty per cent, of the qualified electors of the municipality must make and sign a petition to council asking the submission of the question to a vote before the council can have any authority or right to order a vote. That is jurisdictional — is a condition precedent to the exercise of the power to order a vote by the council, and if the condition is not present, if forty per cent, of the electors did not so petition, the election must be held of no effect; and this jurisdictional fact may not be presumed from the fact that an election was ordered by the council, but must affirmatively appear in the record in some form or other. If it does so appear then the presumption arises that the order made was properly made and is valid, unless the proceeding was so irregular and erroneous as to invalidate it. Such was the holding of this court in the case of Smith v. Frenzer, 5 Circ. Dec. 658 (13 R. 250). This case was approved and affirmed by. the Supreme Court, and may, for the present, be said to be the law on that subject.

The only question we have here is the one: Does it appear from the record, affirmativel}’’, that forty per cent, of the electors petitioned for the submission of the question of prohibition in Huntsville to the electors of that municipality ? We are all of the .opinion that such fact does clearly appear of record. The record of council shows that a petition for an election was presented to the council under the Beal law and the council took action b}' appointing, on motion for that purpose, a committee to investigate the petition and report the facts to the council. The committee did investigate and report to the council that forty per cent, of the voters of Huntsville have signed the petition. This report was accepted and acted upon by the council by unanimous vote and an order made appointing August 4 as the date that an election should be held. True there is no formal finding of the fact of forty per cent, of the voters signing the petition appearing of record, but by the fairest inference it appears that such fact was then acted upon by the council and by each and every member thereof present and participating in the proceedings. This objection appears to us to be not at all of the essence, but purely and wholly technical. There is in substance and effect a finding by the council of the jurisdictional fact, and if there is any doubt of that, it is made to appear on the trial of the contest in the probate court, that in fact more than forty per cent, of the voters did sign the petition. We are of the opinion that the fact that forty per cent, of the electors signed the petition is quite, apparent on the record and that the council so found is also apparent. This gave jurisdiction and no prejudicial thing being made to appear, the presumption is that the order made was properly made, and the judgment is affirmed with costs but.without penalty.

Judgment for costs, execution is awarded and remanded for execution.


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    INJUNCTION — CONTRACTS—EQUITY.
    [Franklin (2nd) Circuit Court,
    February 1, 1904.]
    Surhmers, Sullivan and Wilson, JJ.
    State, ex rel. Edward L. Taylor, Jr. v. Nathan B. Abbot et al. (Trustees).
    1. Trustees of Memorial Association Enjoined From Carrying out Contract Because of Variance Between Specifications and Bid.
    Where trustees of a county memorial association appointed under and deriving their authority from the act of March 12, 1902, as amended March 31, 1902 (95 O. L. 41, 75; Sec. 3107-44a Rev. Stat. et seq.), advertise for sealed bids under several methods for the construction of a memorial building in accordance with plans and specifications which have been duly adopted by the trustees, one of which methods calls for.supplemental bids to be accompanied by the bidder’s specifications relative to his proposed method of construction, etc., and bids are accordingly submitted by several contractors, and the trustees in good faith, without fraud or collusion, award the contract to the bidder who has submitted the only supplemental bid; but which bid is based upon specifications which omit certain parts of the proposed building and also substitutes different forms of construction, decoration and material for certain parts of the work than that called for in the plans and specifications adopted by the trustees and upon which all bids were to be based, which omissions, changes, and substitution amount to about $21,000 and were not authorized or contemplated by the plans and specifications of the trustees, but were all made for the sole purpose of enabling the contractor to ■ construct the building at the price named in his bid, in such case the supplemental bid submitted and accepted by the trustees not being responsive to the trustees’ plans and.specifications under which bids were called for, the trustees were therefore without authority to accept the same, as to do so would destroy the competitive bidding required by the act, and the contract awarded under such bid is illegal and void and the trustees will be enjoined from carrying out its terms. The fact that the material substituted will answer the purpose of the material called for by the adopted plans and specifications, and the building when constructed would, in its essential parts, be substantially the same as if constructed thereunder, is immaterial.
    2. Alternative Bid Must be Responsive to Specifications.
    Alternative bids submitted upon condition that if certain parts of the proposed building are omitted and other material allowed to be substituted, but which omissions and substitutions are not authorized or contemplated by the plans and specifications under which bids are called for, cannot be accepted by the trustees, notwithstanding they have power to invite alternative bids. Such bids must be responsive to the plans and specifications under which they are ,. invited.
    3. Meaning of Language in Plans and Specification Determined by Contractors.
    The meaning of language used in plans, specifications and propositions for the construction of buildings, and under which bids are invited from contractors, is to be determined by what contractors familiar with such language understood it to mean, and not from the opinion of the architect who prepared the plans and specifications or the trustees who have charge of the erection of the building.
    4. Doctrine of Laches not Imputed to County Under Illegal Contract.
    Equity applies the doctrine of laches according to its own ideas' of right and justice, and although a contract has been in good faith awarded to a contractor for the construction of a public county building, and arrangements .have been made thereunder for its partial construction, large contracts entered.into with others for material, and large sums of money expended, yet where it appears that the bid accepted and under which the contract was awarded was not responsive to the plans and specifications under which it was made, but contained omissions and changes not authorized or contemplated therein, that the trustees who accepted the same had limited authority and were without power to accept it as made, and its acceptance destroyed the competitive bidding required by the statute under which the trustees were acting, the doctrine of laches will not, in such case, be imputed to the county.
    Appeal from the court of common pleas of Franklin county.
    E. L. Taylor, Jr., and C. J. Pretzman, for plaint'
    J. E. Safer, for W. H. Ellis & Co.
    Pugh & Stoddart, for trustees.
   SULLIVAN, J.

This action is brought to perpetually enjoin the trustees above named, as trustees of the memorial association of Franklin county, Ohio, from carrying out or completing a contract, entered into by them as such trustees on November 7, 1903, with their codefendant, W. H. Ellis & Company, a firm doing business as general contractors under that name; also to perpetually enjoin said firm, their agents, employes, subcontractors, etc., from carrying out or completing said contract, or doing any act or thing toward the completion of the same, and that the auditor of the county be enjoined from issuing any vouchers to said Ellis & Co., upon said contract, and that the treasurer of the county be enjoined from paying out any money out of any funds in his hands to said Ellis & Co., under said contract.

It is claimed by the plaintiff through its representatives, the prosecuting attorney of Franklin county, that the contract, entered into as above stated and which it assails, is an illegal and void contract and in contravention of the laws of Ohio, because it is .a contract for the construction of a memorial building, under an act of the legislature, passed March 12, 1902, 95 O. L. 41, 42, 43 and 44, entitled an act “To provide for the construction and maintenance of a county memorial building to commemorate the services of the soldiers, sailors, marines and pioneers of the several counties of the state,” and said contract is'not based upon any detailed plan, specifications, forms of bids, and estimates of cost theretofore adopted by said trustees. By Sec. 6 of said act the board of trustees are authorized to employ architects, and Sec. 8 gives the board “power to prepare or cause to«be prepared plans and specifications and to make contracts for the construction of a memorial building for the purposes herein specified and within the amount authorized.” In making the contract authorized by this section, the board are to be governed by the provisions of the several paragraphs that follow and are contained in Sec. 8. The first paragraph provides, that “Contracts for construction shall be based upon detailed plans, specifications, forms of bids and estimates of costs, to be adopted by the board,” and the third paragraph provides, that “No contract shall be let except to the lowest and best bidder who shall give a preliminary and a final bond conditioned respectively, that he will enter into the contract.” And paragraph second of said section, that “The contracts shall be made in writing upon a concurrence of a majority of the board of trustees, signed by the president and secretary of the board and by the contractor, after an advertisement in two newspapers published or of general circulation in the county, for a period of thirty days.”

The plaintiff avers that said board employed Frank Packard as an architect to prepare detailed plans, specifications, estimates of costs, which was done by said architect and upon the completion of the same, the board caused to be advertised in two newspapers and of general circulation in said county for a period of thirty days, that it would receive sealed proposals up until twelve, noon, October 31, 1903, for performing the labor, furnishing the material to erect said building, according to the plans, descriptions, bills and specifications, prepared by Packard the architect, to be found on file at the office of the association room 1310,„ New Hayden block in the city of Columbus, where the same would be open public inspection between the hours of eight A. M., and five P. M., on all working- days during the ’said period of thirty days. The plans, specifications, etc., prepared by Packard, the architect, and upon which sealed proposals were invited by the above advertisement, contained the following, under the head of supplemental bids and designated as proposition No. 2: “Supplemental bids will also be entertained for constructing the entire building including all exterior walls, inside partitions, floor construction, girders, columns of Ferro concrete construction or other reenforced concrete construction. Bids for this class of work, however, must be accompanied by complete specifications and data relative to the methods of constructions, the composition of the concrete, and the method of reenforcing the same.

“It is understood that in making a bid for this method of construction, that the inside finish, the general lay-out of the building, and in fact all work excepting partition walls, floor construction, girders, and columns are to be the same as described in the within specifications.”

The 'defendant, 'Ellis & Co., submitted a bid under this proposition, together with specifications in which they offered to furnish all the material and construct the entire building, walks, driveways, etc., .for the sum of $211,305, and in the first paragraph of the specification attached7 to their bid stated that the same contained certain changes which were .necessary in the various branches of the work to enable the said firm to perform the work for the sum stated, whereupon Packard, the architect, prepared supplemental specifications, which in many particulars were based upon the provisions contained in those of Ellis & Co., in which there appears many material changes and omissions of matters contained in the original plans and specifications -upon which sealed proposals were invited.

The claim of the contractor, Ellis & Co., is that the omissions and changes contained in the supplemental specifications were necessary to the change from standard to concrete construction, and made for the purpose of economy, the board being fully authorized to do so by law, and under the detailed specifications prepared by them, and therefore the bid was responsive to the invitation, and being a lawful and the lowest and best bid, contract is not illegal and void.

The claim made by the trustees in their answer is substantially the same as made by Ellis & Company.

The changes required by said Ellis & Company, to construct the building, walks, driveways, etc., for the price named consisted of several omissions of parts of the buildings set forth in the original specifications, whilst others consisted in changes in form of constructions, decoration and material; all were to be made, however, for the purpose of enabling Ellis & Company to construct the building, driveways, etc., for the price named in their bid.

The estimated cost alone of the omission based upon the statement of Ellis & Company amount to several thousand dollars, the largest item being the sixteen columns, $10,000; ventilating fan, $6,000; and the change from a Scotch marine to the tubular boiler, $2,500. There are other changes and omissions, the items of which are small, but in the aggregate amount to -at least $2,000. The difference in change of material and in inside finish from cabinet to first class carpentry and joiners work, under the testimony produced by plaintiff, would be large, and as it is stated in the first paragraph of the specifications submitted by Ellis & Company with their bid, that the changes suggested were necessary to enable them to construct the building, driveways, etc., for the stun stated, and it must necessarily follow that all changes except those necessary to construct the building of Ferro concrete, were made because the material proposed and change in finish, in place of those set forth in the original specifications, cost less money.

The specifications submitted by Ellis & Company as to these changes and omissions were adopted by the board and the contract assailed by plaintiff entered into -immediately upon their adoption.

Under the provisions of the original plans and specifications, inviting bids for Ferro concrete construction, we think it clear that persons submitting bids under it were not authorized to include in the specifications required to accompany the bid any omissions or changes from the original plans and specifications, except such as were necessary to that method of construction. The invitation to bid under proposition No. 2 of supplemental bids explicitly states that such bids will be entertained for constructing the entire building, including all exterior walls, inside partitions, floor construction, girders, columns, etc., of Ferro concrete construction. The columns are not to be omitted, but instead of being constructed out of the material provided in the original specifications, concrete may be used.

The entire proposition should be construed together, so that the exception found in the second paragraph of the proposition relates simply ■to the material that was to be used in the construction of the inside partitions, floors, girders, columns, etc. The inside finish '■could not be changed, except perhaps where a change to Ferro concrete construction required it. But the inside flnish, general lay-out of the building, was to be the same as provided in the original plans and specifications. Upon the claim of the defendant that under the exception contained in proposition No. 2, the omissions, changes in material and finish named in the specifications furnished by Ellis & Company could be made and in that respect adopted by the board, plaintiff called several witnesses who follow the business of contracting for the construction of buildings of this character, and whose testimony showed they had had large experience, several of whom inspected the original plans and specifications with a view of submitting bids, and this testimony was uniform, that in their opinion the omissions, provided for in the supplemental specifications, were not included and not necessary in the adoption of. the Ferro concrete construction. They submitted no bid upon either method of construction, for the reason that having personal knowledge as to the amount of funds the trustees had on hands to expend for the purpose, they knew the building, by either method, todld not be constructed for that amount upon the plans and specifications upon which they were invited to bid. It is not what the trustees or the architect may have understood proposition No. 2, including the exception, to mean, but how it was understood by contractors familiar with the language employed. Pease v. Ryan, 3 Circ. Dec. 654 (7 R. 50).

In the proposition, no reference is' made to the exhaust fan or any change from a Scotch marine to the tubular boiler, though they constitute large items in the omissions, and the testimony shows that concrete construction would not require the omission of either.

It is true that it is shown that the tubular boiler will perhaps answer the purpose intended fully as well as the Scotch marine, but there is no ' provisions in the original specifications that a bid might be made for a tubular boiler.

There are other changes and omissions, but a sufficient number and cost of same have been mentioned to sustain the conclusion reached and hereinafter stated. Whether these omissions or changes were such as did change any essential part of the building or if constructed as provided by the supplemental specifications, there would be in all the essential parts substantially the same kind of a building as provided for by the original specifications, we think not material. The question is, were the specifications upon which bids were invited in such form and expressed in such words so that those to whom the invitation was extended, could understand that each bidder submitting a bid under proposition No. 2, could,» in the specifications accompanying his bid, require the changes and omissions set forth in the bid of Ellis & Co., or that any such changes and omissions were permissible?

In view of proposition No. 2, as stated, and the testimony produced by plaintiff already refererd to we are of the opinion they were not permissible, and therefore, the specifications upon which the contract with Ellis & Company was made were not those upon which competitive bids were asked.

The authority of the trustees to invite alternative bids being conceded, does the statute by which all the authority they have is conferred, authorize them to accept any alternative bid, submitted on conditions, that if they will omit certain parts from the building, and changes in finish, etc., that were not contemplated or intended, nor provided for anywhere in the specifications upon which competitive bidding was invited, that the bidder will construct the building, etc., for the sum stated in his bid ? If so, then the trustees are authorized to enter into, a contract without any reference to the plans and specificatiofis upon which sealed proposals have been made, and the bidder who could succeed in getting in the greatest number of omissions and changes would be the successful one if the changes and omissions made his bid the lowest.

If plans and specifications aré to be adopted by the board after all bids are in, then Sec. 8, Par. 3, is of no force. Section 6 authorized the board to employ an architect, and as contracts for construction can only be based upon detailed plans and specifications, forms of bids and estimates of costs, it is apparent for what purpose his employment is authorized.- And as the contract for construction can be based alone upon detailed plans and specifications, and as provided by Sec. 8, Par. 3, that no contract shall be let except to' the lowest bidder who shall give bond, etc., it is clear, we think, that the legislature intended to and did provide the same safeguards to be found in other statutes pertaining to like matters, with the view to secure the benefit and advantage of fair and just competition between bidders and at the same time close every avenue to favoritism and fraud and to insure the accomplishment of the work at the lowest price by subjecting the contract for it to public competition.

There is no fraud or bad faith charged in this case, and the evidence clearly shows that the trustees, as well as the contractor, have proceeded in good faith and with no intentional wrongdoing, but it does show that the contract entered into with Ellis & Co. is clearly in contravention of the statute under which they were acting, and therefore void.

The contractor and the trustees could reasonably be expected to be governed by the understanding the architect might have as to any provision of the specifications prepared by him, but this would not avail either, if such understanding was different from that of contractors invited to bid familiar with the language employed.

It is claimed further by the contractor, and also by the trustee, that the delay upon the part of the prosecuting attorney in bringing- the action was unexcusable; that as a result of such unexcusable delay, the contractor had incurred large expenses in the necessary preparation for the prosecution of the work, by moving to the site of the building, at a large expense, the apparatus to be used, bringing material upon the ground, entering into contracts for material, to a large extent, also the execution of the bond required, and procuring the required sureties thereon, so that if the prayer of plaintiff’s petition should be granted the contractor would sustain serious loss; that being in a court of equity, whether notwithstanding the fact that the contract was illegal and void, yet in view of the foregoing, the court looking to the equities of the’ parties should “remain passive and do nothing in the premises.”

A court of equity applies the rule of laches according to its own ideas of right and justice.

The state -has necessarily to depend upon its represehtatives and agents in matters of a public nature, and when the interests of the. public are materially injured by illegal proceedings, whether by fraud or otherwise, it cannot have the facilities of discovery -where simply individuals are interested and affected, and courts of equity have recognized this fact in the doctrine of laches.

If during the period necessary to enable the state through its representatives to prepare its action to avoid and prevent a wrong to the public and protect it against loss, a contractor, who has obtained an illegal contract, out of which the injur}' arises, proceeds, as it is claimed was done here, and thereby the state is estopped from preventing the injury and loss, and the public must submit, then it may be said that in almost every case, when the state and the public are interested, the doctrine of laches would apply. The claim of laches here we think is not sustained.

The further claim is made that if the prayer of the petition is granted, that no benefit will result to the public, or if any should result, it would be very little and so trifling that a court of equity should not extend its aid. If the prayer is granted the only additional expense made apparent by the facts disclosed will be the advertisement for bids upon the detailed plans, specifications, etc., as modified. This will insure the competition required by the law. Upon the testimony produced, it is shown that an opportunity will be afforded of determining whether the building, etc., upon such modified plans and specifications cannot he built for very much less than the bid upon which the contract was awarded, saving to. the .memorial fund several thousand dollars.

There is testimony in the case, worthy of belief, showing that under the supplemental specifications upon which this contract was awarded this building with the walks, driveways, etc., can be built for $190,000, and at a profit to the contractor. Here is a difference of $21,000 which cannot be regarded as a trifling sum.

It is- ¡further claimed, that if the prayer is granted, that it might result in the ultimate defeat of the building; whilst this is a claim wholly immaterial, and one not proper for the court to consider under the issues made, yet we are unable to see why such a result should follow when the relief if granted will save several thousand dollars to the fund provided for the purpose, and at the sainé time enable the trustees to proceed according to the statute.

The contract entered into between the trustees and Ellis & Company is illegal and void.

Because the plans and' specifications upon which it was awarded were not those caused to be prepared by the board, and upon which bidders were invited to bid, and hence not responsive to the invitation, and other bidders did not have an opportunity to bid for the contract awarded Ellis & Co., it therefore follows that plaintiff is entitled to the relief prayed for in its petition, and the same is granted.