text:
    DETACHING FARM LANDS FROM CITIES AND VILLAGES.
    [Circuit Court of Paulding County.]
    The Incorporated Village of Grover Hill, Ohio, v. George A. McClure, and The Incorporated Village of Grover Hill v. William H. Eaton.

    Decided, March, 1905.

      Constitutional Law — Unplatted Farm Lands — Act Detaching Them from Cities and Tillages — Does not Confer Legislative Power Upon the Judiciary — Local Government — Words and Phrases— Discretion.

    1. The act of April 23, 1902 (95 O. L., 259), providing f.or detaching unplatted farm lands from cities and incorporated villages, and for attaching them to adjacent townships, is -not in conflict with any provision of the Constitution of the state of Ohio.
    2. This act does not confer legislative powers upon the judiciary, nor does it impair the system of local self-government guaranteed by ■the Constitution.
    3. The phrase “in. his discretion” contained in said act, refers to the judicial discretion of the court, and not to the legislative discretion.
    Hurin, J.; Norris, J., and Vollrath, J., concur.
    On error to the Common Pleas Court of Paulding County.

       Affirmed by the Supreme Court without report June 6, 1905.

   The petition in each- of these cases1 alleges that the plaintiff: is -the owner and in actual possession of certain lands in' Paulding county, Ohio, whch are unplatted farm lands, wholly within the limits of the incorporated village of Grover Hill, and that they may be deta.chéd therefrom without materially affecting the good government of the adjacent territory within the limits of the village of Grover Hill.

Both petitions pray that said lands be detached and annexed to and become a part of the adjacent township, to-wit, Latty township, and for all proper relief.

The amended answers allege that this action is brought under and by virtue of an act of the General Assembly, passed on the 23d of April, 1902, entitled “An act- to provide- for detaching unplatted farm lands from cities and incorporated villages, and for attaching the same to adjacent townships,” which said act is in conflict with the provisions of the Constitution of the state of Ohio, and especially with Section 1, Article II, Sections 1 and 4, Article IV, and Section 20, Article I, of said Constitution. That said act is not a valid exercise of legislative authority for the reason that it impairs the system of local self-government existing under the general laws of the state of Ohio, at the adoption of the Constitution ; that said act is contrary to public policy, and is void.

These answers were demurred to on the ground that they did not state facts sufficient to constitute a defense. The court sustained the demurrer and found from the evidence that the lands described in the petition are farm lands and may be detached without materially affecting the good government of any territory in the village, adjacent to said land. It is therefore ordered and decreed by the court that said lands be detached from Grover Hill andi attached to Latty township.

The sole question raised in each of these cases, is that of the validity and constitutionality of the act of April 23, 1902 (95 O. L., p. 259), now designated as Sections 1536-60-61, Revised Statutes.

It is claimed by plaintiff in error that this law is unconstitutional as conferring legislative power upon the judiciary, as contrary to public policy and as impairing the system of local self-government existing prior and subsequent to the adoption of the Constitution. Section 1 of that act provides that—

“The owner or owners of undivided farm lands lying within the corporate limits of any city or village, may file a petition in the court of common pleas of the county in which said lands are situate, in which such owner or owners shall be named as plaintiffs, and such city or village shall be defendant, setting forth the reasons why such land should be detached, and the relief prayed for. On such petition a summons shall issue, as in other actions, and such cause proceed as in other causes.”

Section 2 provides that—

e‘ On the hearing of such cause, if the court shall find that said lands are farm lands, and that the same may be detached without materially affecting the good government of adjacent territory within such city or village limits, an order and decree may be made by the court in its discretion, and entered on the record, that such lands be detached from such city or village and may be attached to the most convenient adjacent township in the same county, and thereafter such land shall not be a part of said city or village, and shall be a part of the township to which the same has been so attached, and the costs taxed as to the court may seem right. ’ ’

It will be observed that this act provides for the filing of the petition in the court of common pleas, naming the defendant and the issuing of a summons thereon, and that the cause shall proceed as in other causes. It further provides for a hearing by the court, a finding by the .court on the facts presented, and that if the court shall -find, first, that said lands are fa/nn lands, and second, that the same may be detached tuithout materially affecting the good government of adjacent territory witlvin such city or village limits, then the court may make an order and decree, etc. So far all the procedure is in judicial form, and apparently within judicial powers, but it is claimed that the phrase “in its discretion” which is applied to the decree of the court by the statute, discloses an intention to confer legislative powers on the court; that the discretion is a legislative discretion and not a judicial discretion, for the reason that the whole subject of the creation of municipal corporations and their increase or decrease by attaching or detaching territory, is strictly within legislative powers, and not within the judicial powers conferred by the Constitution.

In the ease of Forsyth v. The City of Hammond, 71 Fed. Rep., 446 (U. S. C. C. of Appeals, 7th Circuit, January 16, 1896), it is said that “the power to establish municipal corporations and to enlarge or contract their boundaries is. legislative;” and being a legislative power, it can not be conferred on or exercised by a court whose functions are judicial (See, also, Dillon on Municipal Corporations, Sections 9 and 54; Cooley’s Constitutional Limitations, 7th Ed., Section 266; The Board of County Commissioners of Laramie County v. Board of County Commissioners of Albany County, 92 U. S., 307).

In the case of Forsyth v. The City of Hammond, just referred to, the court, after discussing the difference between legislative and judicial powers, say, on page 449:

“But in so far as the board, in any such ease, determines questions of fact which are essential either to jurisdiction of the board in the proceeding, or to the right of annexation, as for instance, the fact and sufficiency of notice, contiguity and ownership of lands, or whether the land had been platted, its action is of a judicial character, and may properly be made subject to review on appeal.”

In State, ex rel Luly, v. Simons, 91 Northwestern Rep., 750, a statute of Minnesota is declared unconstitutional because it delegated legislative powers to the district court. In that case the court say:

“It will be observed that the duty of the court is not simply to enquire and ascertain whether certain specified facts exist, or whether certain specified conditions have been complied with, but to proceed and determine whether the interests of the inhabitants will be promoted by the incorporation of a village, and if so, what land ought, in justice, to be included within these limits. In short, it is left to the court to decide whether public interest will be subserved by creating a municipal corporation, ■and the determination of this question is left wholly to his views of expediency and public policy. That the determination of such questions involves the exercise of purely and exclusively legislative power, seems to us too clear to admit of argument.”

In the statute involved in the case at bar, no question of expediency or public policy is submitted to the court. Its conclusions as in any other judicial proceedings are based on its findings as to the facts, on evidence submitted. "Why, then, should the “discretion” of the court be construed to mean other than the judicial discretion upon which all courts are compelled to rely after hearing evidence and arguments. Every order made by any co;urt is an exercise of discretion, but it is a judicial discretion, and without such discretion any court would be useless.

The same distinction appears to have been made in the case of Hutchinson v. Leimbach, 63 L. R. A., 630, and The City of Wahoo v. Dickinson, 23 Neb., 426, cited in 36 N. W. Rep., 813.

In all of these eases, there is a clear distinction drawn between decrees of courts based on facts found, and those decrees when based on expediency, public policy and considerations of abstract justice; in other words, a purely judicial discretion is incidental to all courts, and does not include or imply a legislative discretion.

But even if the use of the word discretion were not susceptible of the interpretation we have given it, i. e., judicial discretion, and if the use of the term would, by itself, necessarily imply the granting of an unconstitutional power, yet if the remainder of the statute, taken by itself, would be constitutional, and that word ‘ ‘ discretion ” is n-ot essential to the sense of the statute, that word may be eliminated and the remainder of the statute upheld.

This principle is thoroughly established in this state (See State, ex rel, v. Dombaugh, 20 O. S., 167, and Gager, Treasurer, v. Prout et al, 48 O. S., 89 and 109).

In this latter ease the court say on page 108:

“By this rule a statute may be invalid in part by reason of some provision being repugnant to the Constitution and valid as to the residue, where it appears that the invalid part is an independent provision, not in its nature and 'connection essential to the other parts of the statute, nor so related to the general purpose of the statute as to warrant the conclusion that the Legislature would' have refused to adopt it with the invalid part stricken out.”

In the ease at bar the statute, eliminating the phrase “in his discretion,” is complete in itself, and calls for a judicial order or decree. The phrase “in his discretion” is unnecessary to a completed meaning, and may, under the abbove decision, be eliminated.

In State v. Sinks, 42 O. S., 346, it is said by the court—

That where it appears improbable and unreasonable that the Legislature would have passed a law without a certain provision which was included in it, and where that provision is unconstitutional, the whole act must be declared unconstitutional.

But this presumption ‘does not arise in this case, for the statute is, as we have seen, complete without the phrase “in his discretion,” and the word itself is fully capable of the meaning “judicial discretion,” which is in harmony with the constitutional powers of the courts, so that, on either supposition, the objection fails.

But it is claimed that, aside from this, this act involves a delegation of legislative powers to the court, because the power to establish municipal corporations and to enlarge or contract their boundaries is a legislative power.

“The Legislature can not delegate its power to make a law, but it can make a law to delegate power, to determine some fact or state of things upon which the law makes, or intends to make, its own action depend” (Locke’s Appeal, 72 Pa. St., 491, cited by Minshall, J., in State v. Messenger, 63 O. S., 398).

In the ease of Zanesville v. Telegraph and Telephone Co., as reported in 64 O. S., 67, reversing the decision in the same case, in 63 O. S., 442, our Supreme Court went to greater lengths than the courts of most states, for it there held that Section 3461, of Revised Statutes, whereby a probate court is -authorized to direct in what manner the telephone company’s lines shall be constructed when the municipal authorities and the company failed to agree, is constitutional and does not confer on the probate court legislative authority. The court say, page 84:

“And this fact alone of conferring on a judicial tribunal in the first instance, the power to act in a given matter, is of controlling importance, in giving judicial character to the nature of the power, though it "is not necessarily a conclusive test; for if it were, the existence of the statute would establish its validity, but it is decisive in that respect, unless it is reasonably certain that the power belongs exclusively to the legislative or executive department.’”

And the court, on page 84 of their opinion, quote with apparent approval a statement of Selden, J., in Cooper’s Case, 22 N. Y., 84, as follows:

“The principle obviously is, that where any power is conferred upon a court of justice to be exercised by it as a court, in the manner and with the formalities used in its ordinary proceedings, the action of such court is to be regarded as judieial, irrespective of the original nature of the power. The Legislature, by conferring any particular power upon a court, virtually declares that’it considers it a power which may be most appropriately exercised under the modes and forms of judicial proceeding.”

Were it not for the deference due to the Supreme Court, I, speaking only for myself, would not be willing to go to this extreme. The Legislature is by no means infallible on questions of law, and its conclusions as to constitutionality are not usually considered final by courts. And I can see no reason for holding that because the power conferred by the Legislature is conferred upon a court, it is thereby ipso facto made a judicial power. Yet such seems to be the rule as laid down by the Supreme Court of this state, with but a hint at a possible exception. We may safely, however, base our judgment on other grounds — those previously suggested.

Metcalf v. Findlay, 49 O. S., 586, is not in point, for it declares the general principle merely that “the power to detach territory from a municipal corporation is in its nature legislative, rather than executive or judicial. ’ ’ But while this is true as a general proposition, it does not preclude the possibility of a question of fact arising as to whether territory should be detached. or whether private rights are involved. It does not preclude the Legislature from providing legally and constitutionally for the submission of such questions to the court, nor preclude a legal trial by the court, of such question of fact, or a decree on the facts as found. And even where- the rule that the Legislature may not delegate its powers is most strongly held, it is subject to numerous exceptions.

Sutherland on Statutory Construction, Section 88: “The true distinction,” says this author, “is between the delegation of power to make the law which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first can not be done; to the latter no objection can be made.”

But objection is also made to the statute on the ground that it violates public policy. This objection is not well taken. “Statutes can not be declared invalid on the ground that they are unwise, unjust, unreasonable or immoral, or because opposed to public policy, or the spirit of the Constitution; unless the statute violates some expressed provision of the Constitution, it must be held to be valid” (Sutherland on Statutory Construction, Section 85; Probasco v. Raine, 50 O. S., 378-390).

But it is further claimed that this statute under discussion takes away the power of local self-government, existing prior to the adoption of the Constitution, and preserved by that Constitution, and that for this reason the statute is unconstitutional.

It is difficult to see in what respect the power of local self-government is interfered with by this statute. True, the question as to whether specific territory shall or shall not remain within the corporate limits of the village, is not left to the determination of the inhabitants thereof, but that is not essential to. our system of local self-government. Repeatedly in our state and in other states have small villages been absorbed' by large cities, without their consent — even against their violent protest. But such acts, when taken in accordance with the forms prescribed by law, have been upheld by the courts. I need only cite the ease of The State, ex rel, v. Cincinnati, 52 O. S., 419. This was apparently a most flagrant violation of local self-government, yet our courts upheld it.

It is now universally held that the people have transferred to the Legislature the right to provide the method by which such questions shall be determined, and having so transferred their power, they can not retain it in themselves.

But it is said that' because that power has been entrusted to the Legislature, it can not be delegated by the Legislature to the court.

It is admitted in argument that the Legislature may delegate to municipal councils, to boards of county commissioners, to township trustees, these powers of local self-government, and, in fact, our system of government admittedly requires such delegation. But it is claimed that legislative power can not be delegated to courts without violating the principle of local self-government. This is begging the question, for, as we have seen, the powers conferred on the courts by this act, if it does confer any power, are not legislative powers, but purely judicial. Hence there can be no violation of the principle of local self-government.

Snook & Wilcox, for plaintiff in error.

Snook & Savage, for defendant in error.

As we have seen, the law provides for the commencement of a suit in court, the filing of the petition, issuing of summons, further proceedings as in other eases, including impliedly the filing of answers, cross-petitions and other necessary pleadings, the hearing of testimony by the court — it also provides for a finding of fact by the court, an order or decree by the court in its discretion, which we have found to be a judicial discretion, all of which is in strict accordance with the constitutional powers of the court of common pleas, in which this statute provides that these proceedings shall be. prosecuted.

There is no surrender of any power of local self-government to be found in any of these proceedings, and no surrender of any constitutional right. On the contrary, full opportunity is given for a contest and the right to be heard in opposition is carefully safeguarded.

Hence we find that the law is constitutional, does not confer legislative power upon the judiciary, and is not an infringement of any power retained by the people.

Holding these views we find no error in the judgment of the common pleas court, in sustaining the demurrer to the answer of the defendant, and the judgment of that court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    ALLOWANCE OF ATTORNEYS’ FEES AND EXPENSES IN APPROPRIATION PROCEEDINGS.
    [Circuit Court of Richland County.]
    Anna L. Wiler v. Logan Natural Gas & Fuel Co.

    Decided, January, 1904.

      Constitutional Law — Sections 6434 and, 6435 — Relating to Condemnation Proceedings Abandoned After Verdict — Attorneys’ Fees and Expenses to Land Owner — Corporation Estopped — From Denying Validity of the Aot in Part — Authority of Probate Court to Impannel Jury — Prosecution of Error — Legislature may Determine what Shall be Regarded as Costs — Amendments of Acts — Evidence.
    1. Where a corporation abandons proceedings for the appropriation of .property after verdict, the probate court is authorized to include in defendant’s expenses his reasonable attorney’s fees, and the judgment of that court in that behalf will not be disturbed unless for a manifest abuse of discretion.
    2. On motion by the defendant for judgment for attorneys’ fees and expenses, evidence may properly be introduced for the purpose of showing the character and extent of the services performed on behalf of the defendant.
    3. The Legislature had authority in extending to certain corporations the right of eminent domain, to burden this privilege with the condition that where the land owner is subjected to; the annoyance and expense of litigation as to the value of land desired by ■the corporation, he shall be made whole in the event of the refu-sial of the company to. take the land after its. value has been fixed.
    4. Moreover, a Corporation invoking the aid of the courts to acquire private property by appropriation, and seeking to avail itself of the special privileges conferred under the law of eminent domain, is estopped from questioning the constitutionality of such parts of the law as impose burdens upon it.
    5. Where the probate court has. jurisdiction to hear and determine any question of fact, it has full power to impannel a jury, if either of the parties to the proceeding is entitled to demand a jury.

      G. It is within the power of the Legislature, in providing for special proceedings, to fix and determine what shall be denominated as costs, and to authorize the court to fix the amount thereof.
    7. A special proceeding having been provided and the means and method pointed out by which error shall be prosecuted im condemnation proceedings, a reviewing court acquires no jurisdiction where such proceedings are brought under the general statute.
    8. A designated mode of prosecuting error to all judgments entered in pursuance of the provisions of an act will be construed to apply to a proceeding brought under an amended section thereof.
    Donahue, J.; Voorhees, J., and McCarty, J., concur.
    Error to Richland Common Pleas Court.

       Affirmed by the Supreme Court without report, 2 O. L. R., 536 (72 Ohio State); Wiler v. Logan Natural Gas Co., 1 N. P.—N. S., 277, reversed.

   The action out of which this proceeding in error originates was brought by the Logan Natural Gas & Fuel Co., a corporation under the laws of Ohio, to appropriate private property for the laying of its gas mains and pipes, under favor of the provisions of Chapter VIII, title 2, Revised Statutes. The case was tried to a jury in the probate court of this county, and the jury returned a verdict fixing the compensation and damages to defendants in the sum of $10,250. The probate court entered a judgment confirming this verdict and no error was prosecuted to the same, but the plaintiff corporation failed and neglected to pay the amount of the verdict within the time specified in Revised Statutes, 6434, for the payment of the same, and thereupon the probate court on motion of defendants, proceeded to and did enter a judgment against the corporation in favor of defendants in that action for the amount of the expenses incurred by defendants, including time spent and attorney fees incurred by them, upon evidence offered in that behalf, in such amount as to it seemed just and reasonable, and that amount it fixed at $1,535.50. Error was prosecuted by the plaintiff corporation to this judgment of the probate court, in the common pleas court of this county, and that court reversed the judgment of the probate court for divers reasons stated in the entry of reversal, and error is now prosecuted by the defendants in the original suit to the judgment of the common pleas court reversing the judgment of the probate court.

The plaintiffs in error contend, first, that the proceedings in error in the common pleas court were brought under the general statute and not in accordance with the special statute directing the time in which error proceedings under this chapter should be brought, to-wit, thirty days; and further contend that the common pleas court erred in holding that Revised Statutes, 6434 and 6435, were unconstitutional; and that it erred in holding that improper evidence was admitted, and that the judgment below was excessive.

1. As to the introduction of evidence. We think it was perfectly proper for the defendants in that ease to show to the court the amount of expenses and attorney fees they had paid or would be compelled to pay. The question of its reasonableness, however, was still left to the court. We think the court had a right to advise itself in a legitimate way as to the services performed by counsel, the nature and extent of the same, and the character .of the litigation and the amount involved therein, in determining what would be just and reasonable, and we do not think there was any error in the admission of that evidence.

2. As to the contention of plaintiff in error that the amount allowed wa.s excessive. It is sufficient for us to say that the probate court has the authority to fix this amount at what is just and reasonable, and its judgment ought not to be disturbed unless it appears to be an abuse of discretion, or manifestly against the weight of the evidence. We think the services rendered, however, were reasonably ivorth the amount allowed. There is no question but that the ordinary fee in such ease would have been at least that amount, had the verdict been paid, and the fact that it was not paid by the defendant in error can not operate to lessen the amount of reasonable attorney fees; but if the contention of defendant in error is correct, that the property in dispute was not worth to exceed $1,000, even in the opinion of defendants below, and in their opinion only worth $250, and the services of counsel were so meritorious as to wrest a verdict from the jury of $10,250 to which no error is prosecuted, and in view of the fact that able counsel represented the other side of the ease, it would seem that that character of service is reasonably worth the sum charged, and few litigants would1 complain of the amount. We think the ability with which the legal service was performed and the result obtained, has something to do with fixing a fair and proper compensation to the attorney, and this is but a matter of common knowledge to the profession, and the profession does so regulate its fees.

3. The next contention, and in fact the principal contention urged upon us, is the question of the constitutionality of these sections. We think it extremely doubtful whether the defendants in error are in position to raise the question of the constitutionality of these sections. This whole chapter, with all its provisions, is a chapter conferring extraordinary and special powers upon corporations, far in excess of the powers in the individual. It gives the corporation a right to take private property without the consent of its owner. It is in effect one of the attributes of the sovereignty of the state. In other words, it is clothing corporations with a right of eminent domain, and in conferring extraordinary powers upon corporations, it would seem to be but just and fair to impose proper limitations and burdens.

This whole chapter with all its parts and parcels is but pne provision, notwithstanding the sections are differently numbered. The foundation of the whole was passed as but one act, and, with a few amendments added thereto from time to time, still remains as it was originally enacted in one act of the Legislature. Therefore we think that when a corporation comes into court and invokes the aid of a court to acquire and possess itself of private property, and avail itself of all the rights and benefits conferred by this chapter, that it is forever estopped to question the constitutionality of each and every part of the law that it is seeking to assert in its own behalf. This question is properly, fairly and fully disposed of in the case of Tone v. Columbus, 39 Ohio St., 281, in which it was held that a person asking a city council, by petition or otherwise, to proceed under an unconstitutional law to make certain improvements, was forever estopped to raise the question of the constitutionality of the act which he himself had asked the city council to proceed under.

It is argued that the right of trial by jury is taken away from this corporation by Revised Statutes, 6434, because it makes no provision for right of trial by jury. It is true that nothing is said in the statute of the right of the court to impannel a jury, but the right of the court to fix attorney fees in cases is granted by the other statutes in other cases in this state, notable instance of which is partition cases, and no question has ever been raised as to the right of the court so to do, and we think that even if it were not possible for the court to impannel a jury at the request of the corporation, that it is possible for the Legislature of Ohio to declare what shall be denominated as costs that a litigant may recover, and what may not be. The Legislature has so declared in other statutes, and where a special proceeding is provided for, why may not the Legislature fix and determine what shall be regarded as costs and give the court jurisdiction in such eases as well as under the general statute to fix and settle cost bills therein. But while we think the defendant in error was not entitled to a jury in this case, yet we do not wish to be understood as holding that the probate court has no jurisdiction to impannel a .jury to try this question. We think the authorities in Ohio are ample and conclusive that-wherever the probate court has jurisdiction to hear and determine any question of fact, that if either of the parties thereto is entitled to demand a jury for the determination of that issue of fact, the probate court has full power to impannel such a jury.

In the ease at bar the record does not disclose that the plaintiff demanded a jury. It merely shows that it objected to the introduction of evidence. Of course if the court had no power to impannel a jury, the law does not require any vain nor useless thing to be done, and the failure to demand a jury would not defeat the plaintiff’s right to a jury.

In the case of Railway v. O’Hara, 48 Ohio St., 343, and particularly on page 356, the court hold that by virtue of the provisions of Revised Statutes, 537, 539, 6411, the probate court has the same power and authority as has the common pleas court. Further on the court say:

' “In such case any order which it would be necessary for the common pleas to make in the impanneling of a struck jury or a sary to carry into effect the powers granted it in the trial of special jury, may be made by the probate court, because necesan issue upon which the parties are entitled to a jury.”

But if this opinion leaves the question at all in doubt, it is fully settled by the case of Doan v. Biteley, 49 Ohio St., 588. The second paragraph of the syllabus in that case is as follows:

“The probate court has jurisdiction to try any question of fact arising in such action therein prosecuted, or afford the parties a trial by jury when the nature of the issues entitle them to a jury trial, or render it appropriate.”

In the opinion in that case the court say:

“The record does not disclose that any demand was made for a jury trial but, if there were no means by which it could have been obtained, the failure to make the demand would not affect the question. We are satisfied, however, that ample power is vested in the courts of probate to award the parties a trial by jury in such cases, when the nature of the issues demands it. This, power may be found in Section 6143, Revised Statutes.”

But we do not think that the question as to whether the probate court had a right to impannel the jury or not is very material in the disposition of this cause. The original act passed April 23, 1872, and found in 69 O. L., 88, did not, as we read it, make any such provision as is now found in.Revised Statutes, 6434, but did provide in Section 10 that the probate judge should render judgment on -the verdict for the amount thereof and for costs-, “which judgment may be enforced by execution, as upon judgment at law.” This Section 10 was amended April 19, 1873 (70 O. L., 147), but it still provided that the judgment rendered -upon the verdict should be enforced by execution as upon judgment at law. March 23, 1875 (72 O. L., 74), this Section 10 was amended, and in this amendment to Section 10 the provision for enforcement of the judgment by execution was omitted, and a proviso added, which proviso is in the language of Revised Statutes, 6434 and 6435, and this is the last enactment of the Legislature upon this subject, and the division of this Section 10 of that act as amended on the date last above-named, has been separated into Revised Statutes, 6434 and 6435, by the codifying commission, but naturally we must look to the law as it was enacted in order to determine any question arising from the same, and Section 10 of that act is now separated not only into Revised Statutes, 6434 and 6435, but also portions of it are found in Revised Statutes, 6432 and 6433, so that Revised Statutes, 6432, 6433, 6434 and 6435, are Section 10 of the act as amended in 72 O. L., 74, and the whole section must be taken together in determining as to any of its parts.

The provisions of this amendment are solely for the benefit of the corporation bringing the action, and if this amendment is unconstitutional in the burdens imposed upon the corporation, the corporation can not claim its benefits in one breath and its unconstitutionality in another. It must stand or fall together. Of course, we recognize the rule that where a portion of a statute is unconstitutional and it can be separated without impairing the constitutional part of it, it ought to be done; but when a statute is amended granting specific and extraordinary rights to a corporation not theretofore enjoyed by it, and as a condition thereto attaching additional burdens, and fair and equitable burdens, viewed from any standpoint, we do not think^ihat the corporation claiming its benefits can attack that portion which increases its burdens. But if the contention of defendant in error is true, that this amendment granting this special privilege is unconstitutional, then the unconstitutional amendment could have no effect whatever upon the law as it then existed, and the repealing clause does not have the effect of repealing the original constitutional section.

So that if the contention of the corporation here is true, and it is permitted to make this contention, then the judgment of the court must be held to have been pronounced under the authority of the original act, and can be enforced by execution at law. So that, as we view it, the corporation by insisting upon the unconstitutionality of this section, takes away from itself the privilege to refuse payment of the judgment rendered upon the verdict. But, as we have already suggested, we do not think this statute is unconstitutional, and even if it were, we do not think this defendant in error, having proceeded under favor of this chapter, can now attack it.

One other argument advanced by counsel for defendant in error is, that the provision of that portion of the section which is now found in Revised Statutes, 6435, gives the owners of land a privilege that it does not give to the corporation, and therefore that, under the provisions of this section, the litigants do not, stand equal in the law, and for that reason the statute must be unconstitutional, but for the very reasons we have heretofore suggested, to-wit, that this section is in favor of the corporations and for it® benefit, and conferring upon it a privilege of refusing to take under the judgment, which is not extended in the same section to the owner of land, that when it exercises that privilege it can not be heard to complain that a privilege is afforded the landowner in the same section, upon their refusal to take, that is not afforded to it. We think, however, that the Legislature had a right in extending to corporations this privilege, to burden them with the conditions thereof, and it is for them to take or accept as they choose. There isi certainly no rule of right nor eonseionable theory upon which a corporation may harrass owners of land with litigation to subject the land to the use of that corporation, and when the judgment and verdict is unsatisfactory to it, abandon the litigation without making the defendants whole.

Aside from all these considerations, we think the question made by the plaintiff in error that the proceeding in error was not properly brought by the plaintiff in error in the common pleas court, according to the terms and within the time limited by Revised Statutes, 6437, must be sustained. The general laws for the prosecuting of error apply to all matters not specifically provided for, but where there is a special proceeding provided by statute, and where the means and method are pointed out in the same law, by which error shall be prosecuted to the judgment or finding of a court in these special proceedings, is definite and certain, the special provision must obtain.

Cummings, McBride & Wolfe and L. T. Neal, for plaintiff in error.

Brucker & Cummins, for defendant in error,

Section 6437 was Section 12 of the original act and provided, as originally enacted, that all the proceedings herein provided for in the probate court, shall be open to exceptions in the same manner that exceptions are or may be taken in the civil suits in the court of common pleas, and either party may file their petition in error in the court of common pleas of the proper county within thirty days from the rendition of the final judgment in the probate court, etc.

This Section 10, under authority of which the probate court rendered judgment in this action, preceded Section 12, and of course the various amendments of Section IQ take the place in the original act of the original section, and all amendments of that section are presumed to have been made in contemplation of the provisions of the subsequent sections of the original act. So that we think the provision that “a proceeding herein provided for in the probate court” found in the language of the original Section 12 is broad enough to include this judgment, and therefore we think it is specially provided in this original act, providing for this special proceeding, how error shall be prosecuted to each and all of the judgments entered in pursuance of the foregoing sections of the same act. This original Section 12 has never been amended; the codifying commission has left out the words that we have quoted, but that, of course, is not important. They are to be taken into consideration in construing the statute, and so considering them, we can not but find that this judgment is one of the final judgments named in this section, and if error is to be prosecuted therefor, it must be prosecuted under the provisions thereof.

We therefore find that the court of common pleas erred in reversing the judgment of the probate court, and that there is no error 'apparent upon the record of the proceedings in the probate court to the prejudice of the corporation defendant in error here; so that the judgment of reversal is reversed and the judgment of the probate court is affirmed, with costs, and said cause is remanded to the probate court for execution. Exceptions noted.


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    IMPLIED PROMISE TO PAY FOR SERVICES.
    [Circuit Court of Hamilton County.]
    James W. Brown v. B. Merrill Ricketts.
    Decided, February 20, 1905.

      Pleading — Not Defective for Failure to Aver Implied Promise to Pay for Services, When — Special Verdict — Judgment Granted Upon, When — Not Defective, When.

    1. A petition on an implied contract to pay the reasonable value of services rendered is not fatally. defective because it contains no averment of a promise to pay.
    2. A special verdict in such case finding that defendant by his conduct requested such services, and that plaintiff at the time expected defendant to pay him, and that defendant intended to become liable, sufficiently shows a contract.
    3. Such special verdict is not defective in failing to find the particular conduct from which the request is inferred', for that would be presenting the evidence and not the fact established by it.
    Gifeen, J.; Jelke, J., and Swing, J., concur.
   The plaintiff below, Dr. Ricketts, avers in his petition, in substance, that at the instance 'and request of defendant, James W. Brown, he rendered professional services to Frank Brown, a son of the defendant, and that the fair value of such services is $780.

The defendant by answer admits the performance of the services, but denes each and every other allegation of the petition, and further avers that Frank Brown, the son of the defendant, was over twenty-one years of age at the time of the alleged request by the defendant.

The jury returned a special verdict, the substance of which is contained in the first and fifth paragraphs, to-wit:

“That prior to the furnishing by plaintiff of the surgical operation and other services, board, lodging and nursing for the treatment and care of Frank Brown, the defendant requested plaintiff by his conduct to furnish the same; that at the time of said request plaintiff expected defendant to pay him, and defendant expected to pay plaintiff for the same; that the reasonable value thereof at the time they were furnished was $600; that the furnishing of the same was completed on March 31, 1900, and that payment thereof was then demanded by plaintiff from defendant and refused.

“That plaintiff expected to be -r>aid by defendant, and defendant expected and intended to become liable to plaintiff at the time when plaintiff furnished professional services, board and lodging in the healing and care of defendant’s son; that the reasonable value of the same at the time when the same was so furnished was $600; that the furnishing of the same was completed on .March 31, 1900, and payment thereof was then demanded by plaintiff from defendant and refused.”

It is claimed that the court erred in rendering judgment upon the special verdict in favor of the plaintiff for the reason that the jury did not find all the facts necessary to sustain such judgment. The verdict, however, responds to every material averment in the petition controverted in the answer, and if the special verdict is insufficient to support the judgment, the petition itself does not state facts sufficient to constitute a good cause of action unless they may be supplied by implication.

The principal objection to the special verdict is that the jury failed to find that the defendant promised to pay the plaintiff for the services requested. We think the better practice is to aver that the defendant agreed to pay the plaintiff as much as said services were worth (Swan’s Pleading and Precedents, 503), although the omission seems not fatal -to the cause of action (Bliss on Co-pleading, Section 152; Pomeroy’s Code Remedies, Section 538, and following).

At all events, the defendant made no objection to the petition but proceeded with the trial as though the petition contained such ' averment. If upon consideration of the whole record substantial justice has been done, the court will not reverse for failure to plead a promise to pay. It is said, however, that the jury should nevertheless have found such fact, and counsel rely upon Railway Company v. Gaffney, 65 O. S., 104, the first proposition of the syllabus being:

“The meeting of the minds of parties upon its terms is necessary to the making of a contract; and this is so whether it be an express contract or an implied one, if in the latter case the contract to be proved is an actual one as distinguished from a constructive contract. ’ ’

The jury in this case have found that the defendant requested plaintiff by his conduct to furnish the services; that at the time of said request plaintiff expected defendant to pay him and defendant intended to become liable to plaintiff. This shows a meeting of the minds of the parties upon all the essential terms of the contract unless it be necessary to find that the defendant promised to pay a reasonable value for the services. In the 15th Am. & Eng. Encyc. of Law, page 1081, the rule is stated as follows:

“It is well settled that where one performs the services for another at his request, but without any agreement or understanding as to wages or remuneration, the law implies a promise on the part of the party requesting the services to pay a just and reasonable compensation, unless there is a family relation existing between the parties, and this remuneration is recoverable on a quantum meruit.”

Professor Keener, in his work on Quasi-Contracts, at pages 4 and 5, says:

“ Suppose, “however, that A should write to a livery-keeper simply requesting him to send a coupe to his house at a certain hour, and the coupe was sent and used by A, there would certainly be no express contract, since A has never in words said that he intended to assume any obligation in favor of B. And yet A’s conduct speaks quite as loudly as words, 'and leaves no doubt of his intention to enter into a contract with B for the use of the coupe. No one would question that A had communicated such an intention to B, and that he can be fairly said to have promised to pay him for the use of his property.”

If the conclusion is so self-evident that no one would question it, then certainly it is such a conclusion as the court may draw from the facts already found by the jury. It would have added no fact to the special verdict had the jury found that a contract was made by the parties, and that the defendant thereby became indebted to the plaintiff, each of which is a conclusion of law.

Counsel for plaintiff in error also claims that the jury should have set forth in their verdict the particular conduct from which the request is inferred or implied, but this would be presenting the evidence to prove the fact and not the fact as established by the evidence, and, therefore, in violation of Section 5200, Revised Statutes.

W. A. Hicks and George H. Kaitenhorn, for plaintiff in error.

Bates & Meyer, for defendant in error.

This is the second trial of the case with a like result in each, and, substantial justice being done, the judgment will be affirmed.


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    CONTRACTS FOR SERVICE BY INFANTS.
    [Circuit Court of Greene County.]
    William A. Fisher, Infant, v. Samuel W. Kissinger et al.
    Decided, October 29, 1903.

      Quantum meruit — Recovery on, hy an Infant — Who has Avoided a Contract for Service.

    An infant is not precluded from recovery on a quantum meruit for services rendered under a contract for a given .time, which, he has avoided on the ground of his infancy after part performance; and this is true, notwithstanding he discontinued the employment without fault on the part of his employer.
    Wilson, J.; Sullivan, J., and Summers, J., concur.
   The plaintiff, an infant, filed a petition seeking to recover from the defendants for work and labor performed at their request. The infancy of the plaintiff is a conceded fact in the case.

For a first defense, the defendants denied that they were indebted to the plaintiff in any sum whatever for the work alleged to have been done, as stated in the petition. A demurrer was interposed to this defense-and properly sustained.

The second defense is as follows:

“For second defense to said alleged cause of action, defendants say that when said William A. Fisher entered the employ of these defendants on or about January 25,1902, he was then nineteen years of age; that he entered their employment under a contract in which he agreed with these defendants to work and labor for them upon their farm for a period of nine months certain, from and after March 1, 1902, until December 1, 1902. For said work defendants agreed to pay plaintiff seventeen dollars per month, during the said nine months, and, in addition, said plaintiff was to receive his board and room rent.

“Defendants further say that on account of plaintiff’s being sick and unable to begin his work on the day agreed upon in said contract, the plantiff did not begin work until on or about March 12, 1902, and that said plaintiff continued thereafter to work for these defendants' until September 25, 1902, a period of six months and five days, as alleged in plaintiff’s- petition.

“Defendants further say that this plaintiff left their employ before the completion of the term for which he contracted to work and has ever since refused to carry out his contract with these defendants.

“Defendants further say that plaintiff left their employ against their will and that he had no just cause for such leaving, or for refusing to perform his contract, and that they deny that they are indebted to him in the amount stated in plaintiff’s petition, or in any amount whatsoever. ’ ’

A demurrer was interposed to this defense and overruled. The plaintiff then replied, but subsequently, by leave of the court, withdrew his reply and asked leave to demur again to the defense, which was denied him; not wishing to plead further, judgment on the pleadings was entered against him.

The infancy of the plaintiff having been conceded, the question arises whether or not this was such a contract as from whicn an infant could retire, and if he did so, what effect it had upon his right to recover for the work and l-abor which he had performed. The rule as laid down in 16 Am. & Eng. Enc. of Law (2d Ed.), 290, is as follows:

“An infant’s contract to serve for a given time at a definite rate of wages may be repudiated by him at any time during minority, whether before or after completion of the term.

“After the contract has been avoided the parties stand in the same relation to each other as they would had the transaction taken place without any contract, and the infant may recover for his services on an implied promise to pay a reasonable price therefor, taking into consideration any benefit already received by him,”

R. H. Swadner, for plaintiff.

R. W. Baggett, for defendant.

This text is supported by a long line of authorities. Some of the earlier eases were to the contrary, but have, almost without exception, been overruled in subsequent cases. The text of Swan’s Treatise seems to hold to the contrary. On page 628 of the 17th Edition it is said:

“If hired to service by his parents by contract, void because not in writing, or if he does work in part payment of his own contract, or pays money upon it, he can not, by avoiding or abandoning the contract before full performance, on account of his infancy, get back the money, or recover compensation for his work; for, in general, like an adult, he can not exact performance and at the same time refuse to perform am executory contract. ’ ’

The authorities cited to sustain this text are: Abbott v. Inskip, 29 O. S., 59; McCoy v. Huffman, 8 Cow., 84; Holmes v. Blogg, 8 Taunt., 508.

Abbott v. Inspik is authority to the extent that an infant, retiring from a contract made by his parents, can not recover his wages. That is an entirely different question. If the parents are entitled to his services, the contract is binding, and the infant can not recover.

McCoy v. Huffman has been expressly overruled in the same court which rendered the opinion.

So has Holmes v. Blogg been overruled. The almost unbroken line of authorities is to the effect that the infant may retire from his contract and recover for his services upon a quantum meruit. Plis suing for the wages was a repudiation- of the contract and it is averred in the answer that he did in effect repudiate it by retiring from the service.

The answer states no defense against the infant’s right to recover for the services which he had performed, and the demurrer should have been sustained.

This court will direct that it be sustained, and remand the case to the court of common pleas for further proceedings.


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    Questions of negligence at a railway CROSSING.
    [Circuit Court of Franklin County.]
    The C., C. & St. L. Ry. v. Carrie L. Sivey, Administratrix.
    Decided, March 25, 1905.

      Negligence — Charge of Court — Words and Phrases — Failure of Electric Gong to Sound.

    1. It is error in a negligence case to charge the jury that the defendant, in order to be entitled to a verdict, must “satisfy” them as to the claim of contributory negligence, or to say that the defendant was bound to use such guards or warnings as would “prevent an accident” to a person using ordinary care.
    2. The only question for a jury with reference to an electric gong voluntarily placed at a railway crossing which was out of repair and failed to ring, is as to whether the company had used ordinary care under all the circumstances to prevent the accident. The fact that such a gong is not ringing does not relieve one about to pass over a railway crossingfrom the duty to look and listen.
    3. A warning to the jury that its special findings must consist with its general verdict, is vicious if not erroneous.
    4. A city avenue, extended through a sparsely settled region beyond the municipal limits, is noit a city street, but a country road.
    Dustin, J.; Walters, J. (sitting in place of Wilson, J.), and Sullivan, J., concur.
   This court regards the doctrine of Russell v. Russell, 6 C. C., 294, later affirmed by the Supreme Court, as sound, and hence has been accustomed to hold, whenever the point has been raised, that a charge in a civil case requiring the jury to be “satisfied” upon any question, is error. We think, therefore, that the court in this case erred in its charge where it says:

“To establish this (meaning contributory negligence), the burden is upon the defendant, and if the defendant has not satisfied you that the deceased himself was guilty of contributory negligence, you must resolve this claim in favor of the plaintiff.” See also Kelch v. The State, 55 O. S., 146-152.

Again we think there was error in giving special charge III requested by plaintiff below, which reads:

‘ ‘ If you find from the evidence that the defendant established and erected an electric gong at this crossing, I charge you that it was the duty of the defendant to keep the same in repair, and a failure to do so, whereby said gong did not sound when the train which caused the death of Albert Sivey approached and ran over the railroad crossing, is negligence, ’ ’ etc.

The placing of the gong at that crossing was a voluntary matter upon the part of the railroad company. It was not required by any statute or the railway commissioner of Ohio to put it there, or to keep it in repair. Hence, the above positive instruction that a failure to keep same repaired amounted to negligence, was wrong. It was proper only to consider the condition of the gong with reference to the company’s duty to exercise ordinary care under all the circumstances.

Special instruction VIII given at request of 'plaintiff below, viz. :

“It is admitted in the case that Eleventh avenue up to the defendant’s right of way was, at the time of the killing of Albert Sivey, a duly dedicated, appropriated, improved and traveled street of the city of Columbus, and I charge you that the fact, if you find it to be a fact, that the vicinity of said avenue is sparsely inhabited did not warrant or authorize the defendant to run its trains across said crossing as it might over a country road crossing, but that the speed of its trains must be that of reasonable safety, having regard to the nature, situation and use of said crossing. ’ ’

This implies, if it does not declare, that the highway at the crossing- was a city street and not a country road, and not governed by the same rules of law as the latter; whereas the evidence indisputably shows that the crossing in question was and is outside the city limits; and is, in law, a country road, although -called an avenue.

There was error, we think, in refusing to give charge No. 1(3 before argument, as requested by defendant below, viz.:

“If you should find from the evidence that the obstructions at and about the crossing and the noises of the moving conveyance in which the decedent was riding were such that the decedent could not without stopping hear the approach of a train from the north; and that the decedent knew, or m the exercise of ordinary care on his part ought to have known that such were the conditions; and you further find that if he had stopped. and -listened1 first before driving onto the railway track he would have heard the train which struck him, and avoided the collision; and if you also find that the decedent did not so stop and listen, but drove onto the track without taking this precaution, and was killed; then the decedent was guilty of contributory negligence, and the plaintiff can not recover in this action, but your verdict should be for the defendant. ’ ’.

The difficulty of hearing a train, by reason of intervening objects calculated to break the sound, and the noise of decedent’s wagon on the paved street, made it proper, we think, to submit to the jury the question whether or not Sivey in the exercise of ordinary care should have stopped to listen. R. R. Co. v. Suhrwiar, 22 C. C., 560.

Even upon the theory of plaintiff below that it is the duty of the railway company to keep the gong in order, nevertheless the traveler may in view of other noises be bound, in the exercise of ordinary care, to stop and listen for the ringing of the gong.

Again in the general charge of the court at the bottom of page 334 we find this language :

“Would a person of ordinary care be led or induced to injury by reason of the location of this bell and by reason of the fact that it did not ring, and relying upon the fact that it would ring in case a train was coming?”

This assumed, as proven or admitted, the fact that the bell did not ring; whereas that was a question in dispute.

On page 355 in the general charge we observe this language:

“If you should find that * * # said company had failed to adopt sufficient safeguards or warnings to prevent an accident to the person using ordinary care,” etc.

John F. Wilson, for plaintiff in error.

Gilbert H. Stewart, for defendant in error.

This would impose upon the company a duty much in excess of ordinary care, viz., an absolute assurance against accident.

We think also the instruction warning the jury that its special findings must consist with its general verdict or the latter would be set aside, was vicious if not erroneous. “The true finding of the issues submitted to them should not be disturbed or qualified by such a consideration;” just as it is wrong to instruct a jury that a verdict for a certain amount is necessary to carry costs. Railway v. Bartram, 11 O. S., 457.

The foregoing errors, we think, were prejudicial and by- reason thereof the judgment of the common pleas court should be' reversed, and a new trial granted.

The remaining assignments of error we think are not well taken.


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    ACTIONS ON PROMISSORY NOTES.
    [Circuit Court of Cuyahoga County.]
    The Independent Coal Company v. The First National Bank.
    Decided, February 21, 1905.

      Promissory note — Suit, Upon — Defense Against — Blanlc Endorsement of — Rule in Ohio as to Party in Interest — Pleading—Evidence— Sections 5086 and 4993.
    1. There is no warrant in the language of the Supreme Court in Brown v. Ginn for believing there has been a modification of the previous interpretation of the code, making it necessary that a suit on a promissory note be brought by the real party in interest.
    2. One who is not the owner is not the real party in interest, and the presumption of ownership arising from possession of the note ■endorsed in blank may be rebutted.
    3. No prejudice arises from the improper exclusion of evidence, where the fact which it was sought to prove was one which it was not necessary to prove.
    Marvin, J.; Winch, J., and Henry, ,T., concur.
    Error to tbe court of common pleas.
   Suit was brought by the First National Bank against the Independent Coal Company upon a promissory note. The petition is in the short form authorized by Section 5086, Revised Statutes.

The note sued upon was in these words:

“$491.81. Cleveland, 0., Sept. 24, 1902.

“One month after date we promise to pay to the order of Northern Ohio Coal & Coke Supply Co. four hundred and ninety-one and 81-100 dollars at the Woodland Avenue Savings & Loan Co.

“Value received.

(Signed) “The Independent Coal Co.,

“M. Schuerer, Secy, and Treas.”

(Endorsed): “Northern Ohio Coal & Coke Supply Co.,

“By H. J. Thrasher, Secy.

“F. P. Walthour, Mgr.

“H. J. Thrasher, “C, N. Quirk, Pres.

“F. P. Walthour,

“C. N. Quirk,”

To the petition the defendant filed an answer, in whjch no denial is made of the giving of the note nor of the endorsements made thereon, but avers that snch note “was transferred by the payee thereof, the said Northern Ohio Coal & Coke Supply Company, to said plaintiff by mere delivery, and for the mere purpose of collection, and with the design and for the purpose of accommodating said payee in attempting to avoid and evade the defendant’s set-off and counter-claim against it in the hands of said payee; and the defendant says further by way of answer that said plaintiff’s action is not prosecuted in the name of the real party in interest.”

With the pleadings in this situation the parties went to trial. The plaintiff .introduced the note and rested. Thereupon the defendant moved the court to direct a verdict for it, which motion -was overruled, and error is claimed for this action of the court. There was no error in overruling this motion. Whether it was necessary for the plaintiff to introduce the note at all need not here be determined, but surely the note with the blank endorsement of payee made a prima facie case for the plaintiff. See Osborn v. McClelland, 43 O. S., 284. The fifth clause of the syllabus of this ease reads:

“In case of the blank endorsement of negotiable paper, the endorsee, who is in possession thereof, is prima facie the owner, and entitled' to sue thereon, but this presumption may be rebutted and the rights of the real owner established.”

Later on in the trial the defendant amended its answer, at the suggestion of the court, and interlined the following words: “Defendant denies any liability on said note, and denies the plaintiff is or ever was the owner of it.” Whether this amendment was material or not, it in no wise prejudiced the defendant that the court required such amendment to be made, for it added nothing to what the defendant clearly meant to make as a defense in his answer as originally filed. Unless the answer as originally filed was in effect a denial of the ownership of the note by the plaintiff — about which we express no opinion — it was not a good answer.

This amendment having been made, the plaintiff replied, denying all the allegations of the answer except such as are admissions of the allegations of the petition. This amendment to the answer and filing of the reply took place during the trial. •The parties then proceeded with the trial, and the defendant introduced as a witness one P. B. Quayle, who stated that he was the manager of the Independent Coal Company, the maker of the note. He was inquired of as to whether he had dealings with the payee of the note, which was shown to be a partnership, and then this question was asked him: “You may state whether at the time you had a contract with this Northern Ohio Coal Company represented by these men?” To this question the plaintiff objected, and counsel for the defendant stated that he expected and offered to show that the witness did have a contract; that by virtue of that contract the payee of this note represented by these men are legally indebted to the Independent Coal Company for not having furnished such company coal as they had agreed, by reason of which the coal company had suffered damage. The court sustained the objection, and it is urged that the ruling was erroneous. The question was asked under a misapprehension on the part of counsel for the defendant as to what it was incumbent upon him to show as a defense to the claim made by the plaintiff. It was not necessary that, the defendant should show that if suit had been brought by the payee it would have had a defense. It was sufficient that the defendant show that the plaintiff ivas not the owner of the note. If he succeeded in showing this, he made a complete defense to the action, for if the plaintiff was not the owner of the note, then it was not the real party in interest as required by Section 4993, Revised Statutes. Under this section the -real party in interest who brings suit upon a promissory note must be the owner of that note. Such suit can not be maintained by one to whom the note has been transferred 'whether by endorsement or by mere delivery for the purpose of collection only. Nichols v. Gross, 26 O. S., 425; Osborn v. McClelland, 43 O. S., 284.

In the latter case, this language is used in the opinion:

“Let it be assumed that this note was negotiable after due, so as to confer upon the indorsee the legal title, and that prima facie he is entitled to recover.

“At common law this authorized the indorsee to sue in his own name, and it was no defense to show that he was not the owner.

“By the code the action must be brought in the'name of the real party in interest, except in oases of express trust, etc. If, therefore, the indorsee is not the real party in interest, nor the trustee of the real owner of a negotiable note, his action may be defeated by showing that some other person is the owner.”

Numerous authorities are cited in the opinion, and no modification of the rule there laid down has been announced by our Supreme Court since.

A question akin to this was raised in the ease of Brown v. Ginn, Trustee, 66 O. S., 316. In this case the suit was brought by the assignee of several claimants against one Brown of their several choses in action. The assignee, Ginn, was to receive as compensation for collecting these claims a certain per cent, of the amount collected, and' it was held in that ease that, though the plaintiff had an interest in these claims, he was not the real party in interest. In the opinion, Judge Spear uses this language:

“We are aware that the tendency of some courts has been to uphold actions brought upon negotiable instruments, transferred for collection only, on the ground that the plaintiff is the real party in interest, and that there are some authorities that point to that conclusion. Indeed, it may be admitted that the trend in some of the code states is in that direction. ’ ’

Surely there is no intimation in this language that Ohio has modified the rule laid down in Osborn v. McClelland, supra, and Nichols v. Gross, supra. It follows, then, as already said, that the defendant was in no wise prejudiced by the ruling of the court excluding the evidence, because the fact sought to be proved was one which the defendant did not need to prove to defeat the action.

Later on, the same witness was asked as to a conversation had between himself and certain representatives of the payee at a time when the cashier of the plaintiff was present, subsequent to the transfer of the note by the payee to the plaintiff. Objection was made to the evidence, and though we are not prepared to say that the reason given for the objection or the reason assigned by the court for excluding the evidence was good, we find no error in the ruling of the court excluding the evidence.

What was sought to be shown by this evidence, as stated by counsel for the defendant, was that “after this note fell due the payee, in company with the cashier of the plaintiff, appeared at the office of this defendant, and together they were anxious to have this matter settled up, and that thereupon and after a long consultation the payee, to-wit, Mr. Walthour and Mr. Thrasher, the principal persons in the payee, thereupon said to the manager of the defendant that they then were going to sue that note, the bank were going to sue on this note, and that thereupon the cashier of the bank made no objection nor made no claim to be the owner of the note.” If the witness had testified to exactly what counsel for the defendant stated he expected him to testify to, it would have had no tendency to show that the plaintiff was not the real owner of the note. It was not sought to show that the cashier representing the plaintiff said anything as to the ownership. Counsel for the plaintiff below and the court, from what appears in the bill, seemed to think that if the cashier of the bank had made a statement to the effect that .the bank was not the owner of the note, such statement being made after the note was transferred to the bank, it would not be admissible to prove that the cashier had so stated. But whatever ruling should have been'made, if it had been sought to show some statement of the cashier, no ruling was made on that question because it was not sought to show that the cashier said anything about it, but only that parties representing the payee said in the presence of the cashier that they proposed to sue the note. Did this call on the cashier to say anything? We think not. The circumstances were not such as that the cashier or any one claiming to own the note would be likely to interfere upon the statement being made by the payee, or those representing the payee that they were about to sue the note, to interfere and deny that they had any right to bring the suit. The natural thing was for the cashier under the circumstances to have said nothing; hence the evidence, if admitted, would have availed the defendant nothing. There was therefore no error in sustaining the objection to this evidence.

Kerruish, Chapman & Kerruish, for plaintiff in error.

Hamilton, Hamilton & Smith, for defendant in error.

This disposes of the complaints made, and. as we find no error to the prejudice of the plaintiff in error, the judgment of the court below is affirmed.


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    FEES COLLECTED BY MAYORS.
    [Circuit Court of Guernsey County.]
    The City of Cambridge, Ohio, v. James W. Smallwood.
    Decided April Term, 1905.

      Mayors — Fees Collected By, in Penal Cases — Where Salary of, has Been Fixed — Right of City to Recover.

    Under Section 126, Revised Statutes, 1536-633 of the Municipal Code, where the council of ithe city has, fixed the salary of the mayor and also the fees he shall1 collect for violation of the penal ordinances of the city, the mayor is required to pay into the city treasury the fees collected by him for the violation of such ordinances, and upon his failure to do> so, the city may recover from the mayor such fees in an action prosecuted for that purpose.
    Cook, J.; Burrows, J., and Laubie,-J., concur.
    Error to Guernsey Common Pleas Court.
   ' The action below was by the City of Cambridge against James W. Smallwood to recover certain fees retained by defendant, ■as mayor of the city, which it is claimed he should have paid into the city treasury.

The petition contains three causes of action:

First. Fees received by him in prosecutions for violation of penal ordinances of the city in which prosecutions the fees were collected by him from the accused.

Second. Fees collected by him from persons to whom he issued licenses for certain privileges within the city.

Third. Fees paid to him from the treasury of the city in cases of violation of the penal ordinances of the city in which the parties were convicted and sent to the workhouse and the fees could not be collected from the defendants.

Demurrers were sustained by the court below to each cause of action, petition of plaintiff dismissed at its costs and error is prosecuted in this court by the city.

The petition in each cause of action avers that the salary of the mayor had been fixed by the council of the city and also that the costs which he should charge in such eases had also been fixed by an ordinance duly passed by council in accordance with Section 1536-790, Revised Statutes; so that the question is squarely made whether or not the mayor has a right to have such fees in addition to his salary.

Section 126, Revised Statutes, 1536-633, requires him to pay such fees into the city treasury. That section is as follows:

“Council shall fix the salaries of all officers, clerks and employes in the city government, except as otherwise provided in this act, and, except as otherwise provided in this act, all fees pertaining to any office shall be paid into the city treasury. The salary of any officer, clerk or employe so fixed, shall not be increased or diminished during the term for which he may have been elected or appointed; provided, that the compensation of members of council, if any is fixed, shall be in accordance with the time actually consumed in the discharge of their official duties, but in no event shall exceed one hundred and fifty dollars per year in cities having a population according to the last or any succeeding federal census of 25,000 or less, and for every 30,000 additional inhabitants determined as aforesaid, said compensation may be, but shall not exceed, an additional one hundred dollars per year each, but the salary shall in no city be greater than twelve hundred dollars per annum; and provided further, that the salaries of members of council shall be paid semi-monthly and a proportionate reduction in said salaries shall be made for the non-attendance of any member upon any regular or special meeting thereof.”

But it is said Section 1536-643, Revised Statutes, is authority for his retaining such fees in addition to his salary. That section is as follows:

“All fines and forfeitures which may be collected by the mayor, or which may in any manner come into his hands, and all moneys which may be received by him in his official capacity, other than his fees of office, shall be by him paid over to the treasury of the corporation weekly; and at the first regular meeting of the council in each and every month, he shall submit a full statement of all such moneys received, from whom and for what purpose received, and when paid over; but all fines, penalties, and forfeitures collected by him in state cases shall be by-him paid over to the county treasurer monthly.”

■This section is not part of the Municipal Code as passed October 22d, 1902, but existed previous to the adoption of the Municipal Code and was Section 1751 of the Revised Statutes. It was not expressly repealed in the repealing clause of the act of October 22d, 1902, but it will be observed that by Section 200, Revised Statutes, 1536-854, this Section 1751 is made specially applicable to villages and by implication at least would be made to apply to villages ’alone to which class of municipalities Section 126, Revised Statutes 1536-633, does not apply.

It will furthermore be observed that Section 126, 1536-633, Revised Statutes distinctly sets forth “except as otherwise provided for in this act, all fees pertaining to any office shall be paid into the city treasury,” referring to the act of October 22d, 1902, and 'showing that the • intention of the Legislature was not to include the provision of any statute upon that subject previously existing. The evident object and purpose of the Legislature, no doubt, was that all officers of cities should receive salaries for compensation, and not be subject to the temptation of the fee system which is naturally demoralizing and which system the Legislature of late years has been trying to abolish.

If we should admit that Section 1536-643, Revised Statutes, original Section 1751, still applies to cities, yet the result would be the same as these two sections are irreconcilable and effect must be given to the one which is later. State, ex rel, v. Holliday, Auditor, 63 O. S., 165:

“Where the general provision of a statute and those of a later one are incompatible, the provisions of the latter statute must be read as an exception to the provisions of the earlier statute.” City of Cincinnati v. Holmes, Admr., et al, 56 O. S., 1044.

N. C. Collins, for plaintiff in error.

J. A. Troette, for defendant in error.

Furthermore, the act of October 22d, 1902, specially provides :

“This act shall supersede all acts or parts of acts not herein expressly repealed which are inconsistent herewith.”

It follows that the court of common pleas erred in sustaining the demurrers to the first and third causes of action of plaintiffs petition and for that reason the judgment of the court below must be reversed and the cause remanded for further proceedings.

As to the second cause of action counsel has referred us to no law by which mayors may charge fees for issuing licenses and.we know of none; therefore the mayor had no authority to collect such fees, as he could only collect fees where the same are expressly provided for by statute, and the fees so collected belong to the parties paying the same,, the city having no claim to them whatever.

The demtirrer to the second cause of action was properly sustained.


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    CONTRIBUTORY NEGLIGENCE OF CHILDREN.
    [Hamilton County Circuit Court.]
    The Cincinnati Traction Company v. Robert E. Blackson, an Infant, by his Next Friend, Millie Blackson.
    Decided, February 10, 1905.

      Presumption — None Arises as to the Capacity of Children — From Five to Twelve Tears of Age — To Avoid Danger — Contributory Negligence — Charge of the Court.

      1. Where the defense of contributory negligence has been interposed in the case of a boy eleven years of age, injured by being struck by an electric car, it is error to charge the jury that “in the absence of evidence of greater intelligence and capacity -than is common to boys of his age, the law presumes that he is incapable of being charged with contributory negligence.” No presumption arises in suck, a matter, but the .question of the capacity of the boy to avoid danger under the circumstances of the case is one to be left entirely to the jury under proper instructions.
    2. It is the duty of a jury in considering a case of this kind to first determine the standard of conduct to which a child- is to be held, by giving due consideration to its age, mental and physical development and environment, and- then having fixed this standard, to measure that which the child- has actually done by this standard, and determine whether or not the child has come up to it, or has failed.
    Jelke, P. J.; Swing, J., and Giefen, J., concur.
   This was an action brought by Robert E. Blackson, an infant, by his next friend, Millie Blackson, against the Cincinnati Traction Company, for personal injury alleged to have been received by the said Robert E. Blackson by being run down by the car of the defendant below, through the negligence of said, defendant’s servants, at the corner of Fifth and Plum streets, in this city.

Among other defenses was that of contributory negligence. Upon this subject, the court charged the jury:

“If', however, you find that this particular boy was more intelligent or had greater capacity to avoid danger than is common to boys of his age, then he should be charged with such intelligence and capacity. In the absence of evidence of such greater intelligence and capacity than is common to boys of his age, the law presumes that he is incapable of being charged with contributory negligence; but it is for the jury to say, from all the circumstances of the case, whether he is capable of exercising reasonable care and vigilance to see and avoid danger. If he is capable of so doing, he is chargeable with the exercise of reasonable care. If not, he can not be charged with contributory negligence.”

The Cincinnati Traction Company, plaintiff in error, complained that this charge constitutes prejudicial error.

“The degree of care and caution required of a child must be measured by his age and capacity. But while the law makes due allowance for the thoughtlessness and indiscretion of youth, it does not hold children necessarily irresponsible. To the extent that a child has knowledge and understanding of the danger to which he is exposed, or where it is of such a nature as to be necessarily obvious even to one of his years, he is under a legal duty to avoid it. The standard of his duty and responsibility is measured by such reasonable care and prudence as usually characterize children of his age, intelligence and experience, and to that extent only is he held responsible in law for acts contributing to his own injury. Much difficulty has been experienced in applying this rule; and, while in some cases courts have decided as a matter of law that an infant was clearly sui juris, and in others that he was not, in a far greater number of instances they have held that the capacity of the infant to understand and avoid danger was a question which should be submitted to the jury. Usually it is held that children under five years qf age can not be guilty of contributory negligence, and that children who have arrived at the age of twelve years may in law contribute to their own injuries. But within those limits courts have usually considered the question one of fact and not of law, unless the child was of more than ordinary intelligence or the situation was such that a child of ordinary intelligence must necessarily realize his danger” (Booth on Street Railway Law, Sec. 385, page 523).

It is the duty of the jury in considering a case of this kind to first determine the standard of conduct to which a child is to be held, by giving due consideration to its age, mental and physical development and environment, and then having fixed this standard, to measure that which the child has actually done by this standard and determine whether or not the child has come up to it or failed.

Wé are of opinion that it was error for the trial court to say:

“In the absence of evidence of greater intelligence and capacity than is common to boys of his age, the law presumes that he is incapable of being charged with contributory negligence,

At the time of the accident, Robert E. Blackson was about eleven years old. There is no presumption in the matter. It is a question to be left entirely to the jury under proper instructions, and we think that in this sentence the court committed error prejudicial to plaintiff in error.

Further, on the question of the responsibility of children and their capacity for contributory negligence, the whole charge is somewhat confused, and might very well have misled the jury.

Miller Outcalt, for plaintiff in error.

C. S. Sparks, for defendant in error.

We are therefore of opinion that the judgment herein should be reversed, and cause remanded for a new trial.


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    NEGLIGENCE IN RIDING ON “ BUMPER.”
    [Circuit Court of Franklin County.]
    The Columbus Railway Company v. Leroy Muns, an infant.
    Decided, March 27, 1905.

      Negligence — Street Railways — Riding on “Bumper” — Company Relieved of Liability for Accident, Unless — Custom not Proven by Occasional Instances.

    1. The “bumper” of an electric car is a place of manifest danger, and not designed1 for the use of passengers, nor is it a platform or step suitable or safe for a transferring passenger to use on his wiay to the inside of the car. To occupy it is negligence.
    2. Hlence a person with a “.transfer” who steps upon a “bumper,” thereby loses his rights to the high care due him as a passenger; and! if, while in that position, he is injured by a colliding car from the rear, he is guilty of contributory negligence, and can no.t recover, except for willful negligence on the part of the railway company’s agents.
    3. Occasional instances of passengers riding upon the “bumper” without objection by conductors, do not prove a custom; and conduct so obviously negligent could not ripen into a custom binding upon anybody.
    Dustin, J.; Wilson, J., and Sullivan, J., concur.
   Leroy Muns, the defendant in error, a minor sixteen years of age, with a “'transfer” in his hand mounted the rear “bumper” of a Columbus traction car. Before the oar started, another car belonging to plaintiff in error and in charge of its officers and agents, but unmanageable by reason of a broken brake and a burnt-out fuse, rapidly descended a decline in the rear of the car upon which Muns was standing and bumped into it. Just before the collision Mnns attempted to step to the ground and escape danger, but was caught and one leg so injured that it had to be amputated.

Through his guardian he brought suit against the railway company for damages, alleging that the defendant negligently and willfully ran the colliding car so as to cause the injury of which he complained.

There was no allegation of defective machinery or appliances, but testimony was admitted tending to show that the brake, originally manufactured for a short oar, had been spliced so as to make it do for this long car, which was composed of two short oars, and that it was too small and not properly welded.

No objection was made to that testimony, presumably upon the theory that it tended to show negligent running of the car, greater care being required on account of light and defective appliances.

If that testimony was admissible under the pleadings, the jury was warranted in finding that the company was negligent in attempting to run that long and heavy car with a light and defective brake. Aside from the brake, we think the great weight of the evidence shows that the officials of the company did all in their power to stop the descending car and to give warning to Muns of its approach, by shouting and ringing the gong; and we think the court below properly charged the jury that there was no evidence tending to show willful negligence.

We think further that the boy, by mounting the bumper, which was not a place for passengers, nor a step or platform en route to a place for passengers, lost his rights as a passenger to the high care which would have been due him as such.

It was, moreover, a place of manifest danger, else the bumper would not have been constructed. It amounts to a red flag of warning to all concerned. The peril was such as might naturally result and reasonably have been expected. (Neiber v. Electric Ry., 128 Mich., 486; Bard v. Traction Co., 176 Pa., St., 97).

An attempt was made to show by isolated instances that riding on the bumper was a custom, permitted by the company, and known to Muns. Objections to that mode of proving a custom should have been sustained. Muns testified that he and his companions had ridden on bumpers with the permission of certain conductors, but it did not appear that this conductor was one of them; or that he ever saw said conductor. On the contrary Muns says that he did not see the conductor and had not delivered his transfer. So that he did not rely on any past experience with this official.

Booth, Keatmg & Peters, for plaintiff in error.

F. S. Monnett and M. L. Boyd, for defendant in error.

Furthermore, if it had been a custom and proven so to be, it was one of such manifest negligence that it would not be recognized in law as binding upon anybody. Customary negligence is unknown to the law. (Ry. Co. v. Klauber, 9 Ill. App., 614; Hamilton v. Railway, 36 Iowa, 32; Ohio & Ind. Torpedo Co. v. Fishburn, 61 O. S., 620; Hickey v. Boston & L. Ry., 96 Allen, 433).

Still further it appears from the manifest weight of the evidence that there was room in the car, and that Muns made no examination of the situation and did not attempt to get upon the steps or platform. By the testimony of himself and others, it also appears that after he had mounted the bumper passengers were still getting on and 'off the car. But if the ear had been" crowded to the utmost, it was his duty to wait a reasonable time for another car upon which there was room. His companion (who had obtained a place on the car step, but alighted after the accident) found room upon the next succeeding car, where his transfer was available.

So it seems to be clear that Muns was guilty of negligence contributing directly to the accident, and can not recover.

We think the court erred in instructing the jury that a custom of riding on the “bumper” with the assent of the conductor would excuse Muns for taking that position, and especially where the court says if they found an assent “on this particular occasion,” there being no evidence whatever as to such assent.

For the above errors, and in not sustaining a motion for a new trial, the judgment of the common pleas court is reversed and the cause remanded.


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    PAROL TESTIMONY AS TO SEPARATE AGREEMENT.
    [Circuit Court of Hamilton County.]
    George A. Fitch v. A. R. Gottschalk.
    Decided, February 18, 1905.

      Evidence — Written Agreement Acknowledging Full Settlement of Claim — Separate Agreement Embodying a Condition not Admissible.

    A writing which, acknowledges payment in part with cash-and the remainder with notes “in full settlement of claim,” is evidence of •the extinguishment of the debt, and not a mere receipt; and testimony as to .a separate agreement, whereby the creditor was to have the right in the event the notes were not paid to surrender them and proceed on his original claim, is not admissible.
    Giffen, J.; Jelke, P. J., and Swing, J., concur.
   This action was commenced to recover upon an amount for groceries furnished in the sum of $91.70. The defense was that the plaintiff accepted and received in full satisfaction and discharge of the cause of action the sum of ten dollars in cash and defendant’s five certain promissory notes1 for $10 each, made payable to the order of the plaintiff. Plaintiff, by reply, alleged that the notes were taken in settlement upon condition only that they were paid when due, and averred that they were not so paid, and that he tendered the notes back.

The defense of full settlement of the claim is based upon the following written instrument:

“Cincinnati, 0:, April 2, 1903.

“Received of Chas. L. Hopping, attorney for George A. Fitch, fourteen and fifty one-hundredths dollars ($14.50) in cash, $10.00 to be applied on account, and $4.50 to meet payment of costs, and five notes, dated April 2, 1903, each for $10.00, and payable in one, two, three, four and five months after date, in full settlement of claim of A. R. Gottschalk, grocer, against the said George A. Fitch, in accordance with agreement of A. R. Gottschalk, and a further agreement to immediately release attachment, dismiss- suit pending before Chas. T. Dumont, J. P., and payment of all costs of said suit.

“(Signed) John Wentzel,

“Attorney for A. R. Gottschalk.”

The court received over the objection of the defendant testimony tending to prove that at the time -said settlement was made, before said paper writing was given, there was a separate agreement with A. R. Gottschalk referred to in writing by which it was agreed and understood that if such notes were not paid when due, the plaintiff should have the right on his original claim to enforce the same by action. That such first note was not paid when due, and that plaintiff had offered to return said note; to all of which the defendant excepted.

The paper referred to is something more than a mere receipt; it shows that the parties agreed upon a settlement of the account, and that in fulfillment of that settlement the defendant paid to the plaintiff $14.50, and delivered to him five notes of $10 each. This was an extinguishment of the original account, and the cash and notes were accepted- — in the language of the parties — “in full settlement.”

It is contended, however, that the clause “in accordance with agreement of A. R. Gottschalk” permitted the plaintiff to show that the notes were accepted upon condition that they would be paid when due. If the payment of the cash and delivery of the notes was settlement in full, there could be no condition attached thereto, and any testimony tending to prove such condition would contradict the plain terms of the instrument itself. The natural construction of the clause is that the receipt of the cash and notes in full settlement was in accordance with an agreement already made by the attorney’s principal. This conclusion is supported by the case of Jackson v. Ely, Executor, 57 O. S., 450, in which the first proposition of the syllabus is as follows:

“A written instrument in the following terms, ‘$15.50. Wooster, Ohio, May 13, 1890. This is to certify that I have this day settled with J-ohn Ely, and he has paid me all he owed me, up to this date, and I have no claims or demands against him of any kind whatsoever. — Mrs. Wm. Jackson,’ is not a mere receipt, but contains an agreement to the effect that the parties have come to a settlement of all the accounts then existing between them, and agreed upon the balance due from one to the other; its terms clearly import that all matters of account existing between the parties at the time were included in the settlement; and as parol evidence ivhich tends to prove that certain matters of account, then existing, were not included in such settlement, would contradict the writing in this respect, it is not admissible.”

Charles L. Hoppiig, for plaintiff in error.

John Wentzel, for defendant in error.

We are of opinion, therefore, that the court erred in receiving testimony objected to, and that the answer stated a complete defense to the cause of action stated in the petition.

Judgment reversed and cause remanded for new trial.