author: Price, C. J.

text:
    (Third Circuit-Hancock Co., O. Circuit Court,
    May Term, 1899.)
    Before Price, C. J., Day and Norris, JJ.
    OSCAR V. WOOD v. C. R. ROSENDALE.

      Note payable at certain city — Removal of maker to place unknown— Notice to endorser of non-payment

    (1) . A negotiable promissory note, made payable generally at a particular city where all the parties thereto reside when it was executed, and from which city the maker, prior to maturity of the note, has removed to another locality not known to the holder, may be presented for payment at the late residence of the maker in such city; and if tbe. presentment is made on the proper day, where there is a system of postal collection and mail delivery by carriers, notice of dishonor to an endorser may be given by mailing the same in a duly stamped envelope properly addressed to such endorser at his place of residence in such city.

      Act abolishing days of grace not applicable to notes previously xecuted.

    (2) . Wnere such note was executed an delivered on the 7th day ■ of November, 1892 and payable four years after date, the same was entitled to three days of grace, and became due and payable November lOtn, 1896, notwithstanding the amendment of section 3175 of Revised Statutes, passed March 12th, 1896, which abolished days of grace in such instruments. The amendment does not affect the obligation of contracts existing when the same was passed; and presentment of such note for payment and notice of dishonor on the 7th day of November, 1896, were premature, and did not bind the endorser.
    Error ot the Court of Common Pleas of Hancock county. The suit in the lower court was upon a promissory note for $450, executed and delivered by Ollie E. Yager to Oscar V. Wood, on the 7th day of November, 1892, which by its terms, was negotiable and to become due and payable with interest four years from its date. The note was made payable at “Fostoria, Ohio”, where the maker and payee then resided, Before maturity and for valuable consideration, the payee sold and transferred it by blank endorsement to C. R. Rosendale, defendant in error,

      On the 7th day of November, 1896, a notary public who had possession of the instrument, took it to the late residence of the maker in Fostoria, for the purpose of demanding payment, but she had removed from the city at some time previous, and the only information he could gain, was that she then resided in Springfield, Ohio, but the information was not of a certain or positive character. Thereupon the notary protested the note for non-payment, and on¡ the same day, enclosed in an envelope, properly stamped, a notice to Wood, the endorser, that the noté had that day been presented for payment, which was refused, and that the holder, Rosendale, would look to him for payment. The stamped envelope containing this notice, was addressed to Wood at his residence, in Fostoria, where there was a system of postal collection and mail delivery by carriers at that time.
    No other demand was made or notice given. The endorser refused to pay, and suit was brought and recovery had in the lower court.
    It is contended for the endorser, that no proper presentment was made, and that the attempt to make demand and the giving of the notice of non-payment were premature, as the note was entitled to days of grace. £

    The defendant in error contends that the statute in force when the note was executed, as to days of grace, was remedial in its nature; that they were not part of the contract as to time of payment, and that the amendment of section 3175, passed March 12, 1896, abolishing days of grace, applies to this note although it was not then due.
   Price, C. J.

Two questions arise on the facts stated:

First: Was such presentment of the note made as would bind the endorser ?

Second: Were the presentment and notice of dishonor on the proper day?

We answer the first question in the affirmative.

The parties to the instrument resided in Fostoria at the date of its execution and delivery, and were content to have the place of payment “at Fostoria” without designating any particular place in that city. If the maker resided in the city when the note matured, presentment should have made at such residence, or to the maker personally. Eithe.r would have been due presentment. But where no definite place in the city has been fixed, and the maker has no residence or place of business therein, Chancellor Kent has said, that the instrument may be protested in the city on the proper day without further inquiry.

See Kent’s Commentaries, volume 3, (5th edition) pages 95-97, where the author states:

“If there be no particular and certain place identified and appointed, other than a city at large, and the party has no residence there, the bill may be protested in the city on the day without inquiry, for that would be an idle attempt.
“The general principle is, that due diligence must be used to find out the party and make demand; and the inquiry will always be, whether, under the circumstances of the case, due diligence h'as been used.”

In the case at bar, the payee, who afterwards became the endorser, accepted the note containing a general place of payment, and should be held to have contemplated the probability, that during the four years, the maker might reside elsewhere; and when he endorsed it to Bosendale, he assumed to be governed by the exercise of such diligence in its presentment, as change of residence and circumstances might require.

This view seems to find support in section 234, of Story On Promissory Notes:

“From what has been already said, it may be inferred, and indeed it is a clearly established doctrine, that where a promissory note is made payable at a particular place, as for example, at a bank or bankers, in every such case, it will be sufficient for the holder to present the same for payment at the specified place,, and he is under no obligation whatsoever, in case of dishonor at that place,to present it for payment elsewhere, or personally to the maker, The reason is, that by making it payable at that particular place, the maker impliedly dispenses with the necessity of making any demand upon him, either personally or elsewhere. And this doctrine applies as well to the case of endorsers as to the maker of such promissory note; for the endorsers equally with the maker in such case, impliedly agree, that presentment at the place shall be sufficient to bind all the parties. ”

And we further observe as one of the facts of this case, that when the notary visited the late residence of the maker, it was for the first time ascertained that she had removed from the city, and as the information as to her new place of abode was uncertain, an effort to find her might have been a vain thing.

Besides all this, the informatijn came too late to make demand at her then residence on that day.

Hence, we hold that if the attempt to make demand was on the proper day, due-diligence was used for that purpose,

Second: Were presentment made and notice of dishonor given on the proper day ?

We anwser this question in the negative.

If the instrument in controversy was entitled to days of grace, it is quite clear, that the presentment and notice were premature. It was executed November 7th, 1892, and payable four years from date, and including three days of grace, became due and payable November 10th, 1896. The notice of dishonor was given November 7th, 1896, and at no other time.

It is beyond reasonable controversy, and we need not cite authorities to show it, that as the law stood when this note was executed and indorsed, it was entitled to three days of grace, The legislature of Ohio, at an early day, adopted many features of the law-merchant as to commercial paper, and which find expression in sections 3171 to 3175, inclusive, of Revised Statutes, and prior to the amendment of section 3175, passed March 12, 1896:

“All bonds, notes, bills and checks payable at a day certain after date, or after sight, shall be entitled to three days of grace in time of paymenl * *

This was the law in force when the note in suit was executed, and if the days of grace became part of the contract, the general assembly could not withdraw them from it by a subsequent change of the statute.

We hold that days of grace became an important element of the note, inserted by existing law, as part of the agreement of the parties, and consequently it did not become payable until the third day of grace, on November 10th, 1896.

In Story on Promissory Notes, section 215, the author says:

“* * * These days of grace, which take their name from being days of indulgence or respite, granted the maker for the payment of the note, seem to have had their origin at a every early period in the history of negotiable paper. They were probably, originally introduced by the usage of merchants, in the first place to enable the acceptor of a bill, to more easily make payment of his acceptances as they became due; * * * and in the next place, to point out to the holders, what time he might reasonably grant to the acceptor for such payment without being guilty of laches, or endangering his right of recourse against the other parties thereto. In both views, the usage was at first probably discretionary and voluntary on the part of the holder, and gradually, from its general convenience and utility, it ripened into a positive right, as it certainly now is, and was also applied to promissory notes.”

In his work on Negotiable Instruments, section 614, Daniels states the history and effect of days of grace as follows:

“They were originally days allowed by wav of favor to the drawer of a foreign bill, to enable him to provide funds for its payment without inconvenience, and were called ‘days of grace’, because they were gratuitous, and dependent upon the holder’s pleasure * *■ *. By custom, however, they became universally recognized, and although still termed ‘days of grace’, they are now considered, wherever the law-merchant prevails, as entering into the constitution of every bill of exchange and negotiable instrument, both in England and the United States, and form so completely a part of it, that the instrument is not due in factor in law, until the third day of grace.”

In Ogden v. Sanders, 12 Wheaton, 213-342, Chief Justice Marshall used this language in part:

“The usage of banks by which days of grace are allowed on notes* payable and negotiable in bank, is of the same character * * *. Usage has extended the time of grace, generally to three days. This usage is made a part of the contract, not by the interference of the legislature, but by the act of the parties * * *. In all such cases, the bank receives and the maker of the note pays interest for the days of grace. This would be illegal and usurious, if the money was not lent for those additional days * * * Since by the contract, the maker is not liable for his note until the days of grace are expired, he has not broken his contract until they expire. The duty of giving notice to the endorser of his failure, does not arise until the failure has taken place.”

It seems to us unprofitable to quote further authorities on so plain a proposition; but we have two Ohio cases which contain the same doctrine, but in a different form.

In McMurchy v. Robinson, 10 Ohio Reports, 496, our supreme court decided that a demand on the second day of grace is not good.

In Lewis v. Moon, 1 Circuit Court, 211, the circuit court of Fayette county, held that a judgment rendered on the third day of grace, was without jurisdiction. In that case, judgment was confessed by warrant of attorney on the third day of grace, and it was decided that the judgment was not only erroneous, but without authority and invalid. The holding of the circuit court was afterwards affirmed by the supreme court without report, as seen in 23 Law Bulletin, page 319. The reason why the demand on the second day of grace was not good in McMurchy v. Robinson, supra, evidently was, that the note was not then due. And in Lewis v. Moon, the judgment was invalid, because taken before the note was due. The maker had the whole of the third day of grace to make payment, and an action brought •on such note on the third day of grace, could not be ma'intained, Therefore, the note here involved was entitled to-•days uf grace, although it did not mature for several months after the passage of the amendment of section 3175, Revised Statutes, March 12, 1896. (92 Ohio Laws, page 61).

John Poe, for Plaintiff in Error.

Ross & Kinder, for Defendant in Error.

By that amendment, days of grace were abolished, but not as to pre-existing contracts. Its provisions could only apply to and govern subsequently executed instruments. It •was not competent for the legislature to impair the obligation of existing contracts, and an attempt to do so would be ••unconstitutional,

The foregoing principles establish that the grace allowed by the law when the note in suit was executed, was a contract right and did not pertain merely to the remedy to enforce it, and such right could not be taken away by a subsequent amendment of the statute.

The presentment and notice on November 7th, were premature and did not bind the endorsers,

The lower court erred in rendering judgment' for the bolder of the note, Rosendale, for which error its judgment is reversed.'

And this court making the proper finding on the undisputed facts, finds for the plaintiff in error, and enters judgment accordingly.


source: Caselaw Access Project

author: Norris, J.

license: Public Domain

text:
    (Third Circuit, Hardin Co. O., Circuit Court
    Nov. Term, 1897.)
    Before Price, C. J., Day and Norris, JJ.
    BOARD OF COUNTY COMMISSIONERS OF HARDIN COUNTY, OHIO, v. JOSEPHINE M. COFFMAN, Administratrix of the estate of FREEMAN J. COFFMAN, Deceased.

      County Commissioners’ liability for injury from defective bridge—
    (1) . Section 845 of the Revised Statutes imposes no new duty upon boards of county commissioners. The-duty of keeping-county bridges in repair, was a duty which.arose when such boards were created, and has continued since such boards becaine a part of our system of local government. Section . 845, provides the remedy. By it boards of county commissioners are made liable in their official capacity for injury resulting from their negligence in keeping a county bridge in repair.

      Same — Want of provision for fund from which to pay damages—
    (2) . A person so sustaining injury, is not precluded from recovery because of the fact that no special fund is designated or set apart against which damages thus sustained are chargeable, and out^of which the amount recovered is to be paid.

      Same — Threshing machines and power are ordinary burden for bridges — {Reyersed by Supreme Court.)
    (8). It is the duty of the board of county commissioners to keep county bridges in such repair as will make them safe for such burdens and traffic as ordinarily pass over them. Ordinary traction thrashing engines, impelled by their own power, are in common service and of common necessity. Passing over the public highways, as they constantly do in moving from place to place, they belong to a class of vehicles which to county bridges are ordinary burdens.
    (Reversed by Supreme Court, holding that the County Commissioners are bound only to ordinary care to keep bridges in a sale condition for all usual and ordinary modes of travel and transpoi tation. Also that it is a question for the jury whether propelling of .a traction engine by steam over the bridge was a usual and ordinary mode of travel and transportation or not. See 42 Bull. 205, 61 Ohio iSt. —.)
    Error to the Court of Common Pleas of Hardin county.
   Norris, J.

The defendant in error was the plaintiff, and the plaintiff' in error was the defendant in this case as presented to the court below.

As the administratrix of the estate of Freeman J. Coffman,deceased, the plaintiff, Josephine E. Coffman, brought her action in the common pleas of this county,to recover damages from the defendant for negligently causing the death of her decedent, Shejallegesjn her second amended petition, that a certain county road in this county crosses the Blanchard river, at which point was kept and maintained by defendant for the' purpose of travel and traffic, a public county bridge. That on the^ 5th jof July, 1895, the deceased Freeman J. Coffman, was^traveling along said road with one ordinary thrasher engine and water tank, and while passing over this bridge, at a point about the middle thereof,the bridge gave way; that Coffman went down with the bridge,and sustained injuries from which he died on the 8th of July, 1895. She says that this bridge was built of unfit, unsuitable and insufficient material. That the truss was of improper design and construction, That the cross-pieces which supported the floor were unsound and defective. That the rods by which the cross-pieces were suspended from the truss were defective. That there were no washers at the bottom of the rods under the crosspieces. That the cross-pieces rested only upon a burr at the end of each rod. That the holes through which the rods penetrated the cross-pieces were much larger than the rods, and unfilled and exposed to the weather, and that the wood around the rods become and was rotten and decayed. That at the time of this accident,' the beams and supports and timbers of this bridge, by reason of these defects in its construction, and of the improper material of which it was built, and being so exposed to the weather and rotten and decayed, were insufficient and unsafe to sustain the travel and traffic that passed over the bridge.

That long prior to the time of this accident, the defendant had knowledge of the condition of this bridge, and failed and neglected to make the same safe for public travel.

That by reason of the condition.of the bridge and the negligence of defendant in making it safe, the bridge fell and caused Coffman’s death without any fault on Coffman’s part. The petition names his next of kin, and prays for damages. To this second amended petition, defendant filed a demurrer, which was overruled by the trial court.

And thereupon defendant answered and admits the appointment etc. of plaintiff as administratrix; admits that the bridge was kept and maintained by defendant for public travel; admits that Coffman is dead; that those named in the petition are Coffman’s next of kin; but except these, denies the allegations of the petition,and says, that if Coffman was injured as claimed in the petition, it was caused wholly by his own negligence and without fault of defendant.

The issues as thus made up, were presented to a jury in the trial court at the May term of the present year, which resulted in a verdict for the plaintiff. Defendant’s motion for new trial was not allowed. Judgment was entered upon the verdict,and defendant, now as plaintiff in error,seeks to reverse the proceedings of the common pleas; and for this makes ten assignments of error in his petition in this court and in his motion for new trial in the court below.

The first reason urged is, that the common pleas erred in overruling the demurrer to the second amended petition. The demurrer questions the capacity of plaintiff to maintain the action, and asserts that the facts stated in the petition are not sufficient to constitute a cause of action. We think the court properly overruled this demurrer. One of the reasons urged by counsel for defendant why this demurrer should have been sustained is: That the duties of a board of county commissioners concern the public only; that in maintaining roads and highways and bridges, they owe no specific duty to any particular individual. That the nature of these duties are such that a failure to perform them would suggest no remedy to a citizen who suffered by the neglect. That they were to maintain this bridge and keep it safe for the public,and not for the benefit of Coffman, and if they failed, not Coffman, but the public must complain. And this being the case, he resorts to section 845 of the statutes, which gives him his remedy and makes the commissioners liable in their official capacity, for negligence in keeping bridges in proper repair. That while this statute suggests to him a remedy, gives him a right of action, it yet provides no method of compensation,and creates and authorizes no fund out of which a claim for injury is to be paid, and hence this action is futile, and to maintain it is a vain thing to do, and that there being no method of executing the judgment, then the action itself cannot be maintained. In this we do not agree with counsel.

There are no new duties imposed by section 845. By it boards of county commissioners are made liable in their official capacity for negligence or carelessness in keeping a bridge in repair. The board being created for the benefit of political society, the duty was imposed when the board was created, and has existed since such board became a part of our system of local government.

The amendment gives the citizen the' right to recovery. His claim when reduced to judgment is a claim against the county, to be paid out of the county fund, or if not that, to be paid from taxes levied for that purpose, and a refusal to levy invokes compulsion by mandamus. The responsibility attached wherever the cause existed; whether the fault was in construction or in-suffering the bridge to become dangerous, the responsibility attached because the duty existed. The statute only affords the remedy.

The petition states that the commissioners had knowledge of this defect long prior to the day the accident happened. This we deem a sufficient allegation of notice of the condition of the bridge; this is followed by the allegation that they suffered it to remain in that condition until it became rotten and unsafe and collapsed. We deem this a sufficient description of time to make the petition good,

We find no error either in the admission or in the rejection of evidence.

It is urged that Coffman was not connected with nor employed by the owner of the thrasher engine upon the tank of which he was riding when the bridge fell; that he was simply a pedestrian, and that being upon this tank, placed him in a position where all dangers were at his own risk. That the county commissioners are not common carriers for hire.

No citizen can become a trespasser while he is legally upon and properly conducting himself upon the public highway. Coffman might have been a trespasser upon that tank, had he placed himself there without the onwer’s consent; but the testimony shows he was there with the owner’s permission, and rightfully there. He assumed no risk by riding on the tank so far as defendants are concerned, unless he had knowledge or reason to believe that the bridge was unsafe, but this the testimony fails to establish. Why should he be required to know of this, when those whose duty it was to know- did not know? This man was where hs had a right to be, riding upon a machine the like of which has become and is of ordinary use, and which are every day and of necessity moving from one farm to another over our public higwhays. That thrasher engines were of common use in Hardin county; that they were a necessity;, that they were being moved every day .along the highways and over the bridges, was a fact to which the commissioners could not shut their eyes. That it was their duty to keep the bridges safe for such vehicles as ordinarily passed over them, was a fact to which they could not render themselves oblivious. The testimony clearly shows that they had earning that this bridge was unsafe; they were so informed by several witnesses, indeed they even went so far as to repair a part of this same bridge, and while they did this, the testimony shows that to the weakest part, to the part most likely to rot and give way, they paid no attention. They made no inspection; standing off twenty-five feet and looking at one side of a stick of timber is no examination at all.

A careful and critical examination of a structure of that kind, by a man skilled and competent to do so, who knows enough to look at all of it, the weak places as well as the strong, is only ordinary care. In this, the commissioners were negligent, and negligent with notice, or with ample means and opportunity to know of the condition of the bridge long enough before the accident to have made it safe.

As to the special requests to charge, the first and second do not, as we think, properly state the law. Absolute knowledge upon the part of the commissioners as to the condition of the bridge, was not necessary. If they could have known by use of ordinary care, is sufficient.

We do not think the third request is pertinent to the issues

As to the fourth, we do not agree with counsel that bridges upon public highways are only made for ordinary wagons and teams with their loads, but think that a bridge with an ordinary thrasher engine crossing it, is bearing in these days an ordinary burden only.

The fifth request was given substantially in the charge as given.

The sixth request which goes to Coffman’s right to ride upon the tank is not the law, and as a whole, was properly refused.

The seventh, which fixes the 13th of April, 1894-r-the date of amendment of section 845 — as the beginning of defendant’s liability for negligenece, we do not think is the law of this case.

As to the eighth, the part of it which is the law, was in substance given.

We find no error in the charge, nor in the refusal to charge.

John stillings, for Plaintiff in Error.

Crow & Durbin and George E. Crane, for Defendant in Error.

We find that the verdict is sustained by the evidence. We find that the damages are not excessive, and that there are no errors in the record.

Judgment affirmed at costs of plaintiff in error, and case remanded for execution.


text:
    (Third Circuit — Hancock Co., O., Circuit Court
    Dec. Term, 1898.)
    Before Price, C. J., Day and Norris, JJ.
    GEORGE H. JONES v. GEORGE P. JONES, Adm’r.

      Continuing and subsisting trusts — Limitation—■
    (1) . Section 1971, of the Revised Statutes, in excepting from limitation of actions, continuing and subsisting trusts, simply recognizes and saves an existing rule.
    Trusts of this character, arising as they do by appointment of law or by contract or by deed, there is no time when the cause of action accrues; but the cause of action exists at all times from the creation of the trust, and continues and subsists with the continuing and subsisting obligation enjoined by the trust, and is a part of it. The trust can only be satisfied by performance.

      Partner’s claim on dissolution of firm not subsisting trust—

    (2) . When at the dissolution of a partnership, the only duty of one partner is to pay to his co-partner the amount due him under the agreement of dissolution, such obligation to pay does not assume the character of a continuing trust. But when the obligation to pay becomes absolute, and the obligor ceases .to be a partner and becomes a debtor, the right to compel payment by action accrues and, from that time the statute of limitation runs.
    Error to the Court of Common Pleas of Hancock county
   Norris, J.

The plaintiff in his third amended petition rests his cause of action upon the following allegations of fact:

The defendant is the administrator of the estate of Elijah P Jones, deceased.

Elijah P. Jones, or, E. Pelton Jones as he is called in the petition, who died on the 19th of July, 1894, was on the 27th of November, 1857, a resident of Findlay, Ohio, and the plaintiff was a resident of Oregon, and on that date, at Findlay, Ohio, they made this contract in writing: They each agreed to place $15,000 together as a capital stock of $30,000, and to devote the same for their joint profit so long and in such manner as they could agree and no longer. The name of the firm was E. Pelton Jones, and George H. Jones & Company.

It is stipulated that at the discontinuance of this agreement all the net proceeds of the partnership business shall be added to the capital stock and the whole be equally divided between the parties.

Each agreed to devote his time, labor and talent to the partnership business.

On the same day, the 27th of November, 1857, a further agreement was entered into which is supplemental to the foregoing. It recites that George H. Jones has put into this firm $15,000 in Oregon war script which is his full share of the capital stock, and E. Pelton Jones has put in $8864,81 in Oregon war script, and also his note for $6134,69. This note was executed to the firm,and was payable when the Oregon war script belonging to the firm should be paid by the government, and the note to be under the same conditions of interest the war script shall be to the firm.

This contract then recites the object and scope of the partnership, which was to deal in Washington and Oregon war script,- and to invest the proceeds thereof for the benefit of the firm. The contract then recites that George H. Jones deposited with said firm in war script the further sum of $2432,40, which is to be placed to his credit on the books and converted into money as soon as the government pays the script And it is provided that jf any of this script put into the capital stock shall not be allowed in full by the government, George H, Jones agrees to make up to the firm and to B. Pelton Jones the deficiency in said stock, This is because, says the contract, George H. Jones sold E. Pelton Jones the war script which he put into said firm with the express agreement to make it good to him.

But if no part of this war script is paid by the government, the script is not by said George H. Jones to be made good,

The contract and this supplement to it are both in writing,and both signed by the parties at Findlay, Ohio. Under these stipulations the firm dealt in Oregon and Washington war script. E. Pelton Jones presented to the government and collected the script so handled by said firm, and the plaintiff executed to E. Pelton Jones his full power of attorney to enable and to expedite the' conversion of this script into cash. The petition gives the amount of script handled by the firm, and claims the amount due plaintiff from the said firm, in full of his interest in its transactions, was $11,927.95. The last amount in making up this sum was received by E. Pelton Jones on the 18th of October, 1861, and it was the last transaction of said partnership. It all came into the hands of E. Pelton Jones prior and up to that date. The petition says he returned it and made ■ no account to plaintiff up to his death on the 19th of July, 1891, and since then that the defendant, the administrator, has received and kept it.

Plaintiff presented his duly probated claim to the administrator who refused to allow it as a valid claim against the estate of E. Pelton Jones, deceased. The plaintiff asserts that under the facts recited E, Pelton Jones during bis lifetime, and this administrator since his decease, are as to the assets of said firm and this liability trustees of a continuing trust, and that defendant is as such~trustee required to account and to pay to the plaintiff his interest in said assets, whioh is claimed to amount to, $11,927.95, and for this relief he prays.

There is a second cause of action in the petition to which a demurrer was sustained, but which cuts no figure here. To the first cause of action in the third amended petition defendant filed a demurrer, the grounds of which are:

First. That the first cause of action does not state facts sufficient to constitute a cause of action.

Second. Because said first cause of action and all remedies therein are barred by the statute of limitations. Because no right of action has accrued thereon for more than six years and for more than ten years, and for more than thirty-five years before the commencement of this action.

This demurrer was submitted to the court of common pleas,and was sustained. The plaintiff not pleading further, the court rendered judgment on the demurrer and dismissed the third amended petition,and adjudged the costs against the plaintiff. To this judgment of the common pleaB the plaintiff prosecutes error. The error assigned and urged here for reversal is in sustaining the demurrer to the first cause of action in the third amended petition.

The plaintiff claims that the facts set up in the first cause of action in the third amended petition places him in the position of cestui que trust of a continuing and subsisting trust, with the defendant succeeding the decedent as the trustee of this continuing and subsisting trust, and that trusts of this character being especially excluded from the operation of the statute of limitations, the demurrer is not well taken and should have been overruled.

This exception by the legislature was merely recognizing and saving a rule that already prevailed. It does not appear that either the decedent and the defendant after him are charged with fraud or concealment of any fact which would class them or either of them as a trustee ex maleficio. But that the trust which is here sought to be enforced belongs to that technical character of trusts^ which arise by appointment of law or by contract or deed,in which case there is no time at which the cause of action accrues, but the cause of action exists at all times from the creation of the trust,and so continues and subsists with the continuing and subsisting obligation enjoined by the trust,and is a part of it. Trusts of this cüaracter, continuing and subsisting trusts; trusts which arise only by appointment, or by contract, the purpose of which is to create them, are only cognizable in equity, and without the statute can only be satisfied by performance,

, These parties, the plaintiff and E. Pelton Jones, were”no doubt partners; the purpose of this co-partnership was to deal in.Oregon and Washington war script, and to induce the general government to accept this script as a valid claim and pay it; by the stipulations of the partnership poutiact no other business venture was to be considered or embarked in by the firm, and the firm did embark in no other, but only dealt in warscript; that was what the parties agreed to do; that was the agreement. At the discontinuance of the agreement, says the contract, the net proceeds of the co-partnership business shall be added to the capital stock and the whole divided between the parties.

Now, when did this partnership end; when did the agreement discontinue; when did the partnership cease, for then they were to divide. Why, it ceased when there was no longer business to do; it ended when its assets had been all converted into cash, or the equivalent of cash, after which time no business of any kind was transacted by the firm. This was on the 18th of October, 1861, nearly thirty-six years before this action was commenced. The contract of partnership itself fixed the time for accounting. The time for accounting was when the partnership terminated, when there was no further necessity for its com tinuance, and nothing else for it to do. There was no exigency rendering further time for an accounting necessary, and there was no agreement that there should be further time to account. E. Peiton Jones held the assets of th^ firm. The interest of each was fixed; all he had to do wa$ to divide the assets by two and pay to his co-partner, the plaintiff, his half, by adding the net proceeds to the capital stock and dividing it by two. So he was charged with no duty but to pay this to his partner, and this duty arose in 1861,after the 18th of October. And the right of the plaintiff to compel payment then arose, his right of action then accrued. And when the defendant saw that one who had ceased to be his partner but bad become his debtor and was holding this money for a longer time than was consistent with good faith, he should have commenced his action, and not allowed such time to have elapsed as imported bad faith upon his part. So that,upon the authority in 46 Ohio St.,, 652, and elsewhere, we are not of the opinion that the third amended petition shows such a state of facts as will support a subsisting and continuing trust in favor of the plaintiff, and conclude that the demurrer is well taken.

Bittler & Dwiggins and A. Blackford, for Plaintiff in Error.

J. A. & E. V. Bope, for Defendant in Error.

The judgment of the common pleas court is therefore affirmed at the cost of plaintiff in error, and the’ case is remanded for execution.


author: Smith, J,

text:
    (First Circuit — Butler Co., O., Circuit Court
    April Term, 1899.)
    Before Smith and Swing, JJ.
    MARY A. NEWDICK v. THE CITY OF HAMILTON.

      Injury by city’s servant — Knowledge of incompetency of servant required for liability—
    In„an action brought by the plaintiff against the city of Hamilton, and another person to recover damages for personal injuries averred to have been received by her from the negligence and carelessness of a person employed by said defendants to repair a street in said city, and while said servant was doing said work under the control of the defendants as the petition averred, only the city was served with process or entered an appear- . anee, and the case proceeded against the corporation alone, which defied any employment of the servant or any responsibility for his acts. At the trial of the case evidence was offered tend ng to support all the allegations of the petition and of the answer of the city. The court, over the objection and exception of the plaintiff,charged the jury, that if the defendant had hired the servant, and at the time of such hiring had reason to believe that he was a fit and suitable man for the business, the city would not be liable for damages to the plaintiff occasioned by the negligence or carelessness of the servant, unless afterwards, and before the injury the master had knowledge or notice that he was an unfit person for such employment. Held, that such instruction was erroneous, and prejudicial to the plaintiff.
    Error to the Court of Common Pleas of Butler county.
   Smith, J,

The question submitted to us in this case is, whether the court erred in the charge given to the jury, or in refusing to charge as requested. The bill of exceptions does not contain any of the evidence given to the jury on the trial of the case, but only states that the

“Plaintiff offered evidence, and which was received by the jury, tending to prove each and all the matters stated in her petition and the allegations thereof, and that the defendant offered evidence tending to disprove all the matters and things so offered by the plaintiff which was not admitted by the defendant’s answer, and also to prove the matters stated in its answer. ’’

The action was one brought by the plaintiff against the city of Hamilton, and one Barton, to recover against them damages for an injury alleged to have been sustained by her by the negligent and careless conduct of a servant of the two defendants in driving against a pile of logs, negligently and carelessly placed by said defendants in one of the streets of the city, thereby throwing one of said logs against her, by which she was without fault on her part, severely injured. Barton was never served with process, nor entered his appearance in the case, and the action proceeded against the city alone, and resulted in a verdict for the defendant.

The petition in the case was a very lengthy one, but I state the substance of it so far as it is necessary to do so. It avers that the city of Hamilton is a city of the third grade b, of the second class, and describes several streets therein, which have been public streets for more than fifty years, and that it was the duty of the city to cause the same to be kept open and free from nuisance. That on February 23, 1897, in pursuance of law, a contract was made between the city and B. D. Barton for the improvement of High Street, one of said streets; and much space is occupied with stating the terms of said contract. This is set out, we suppose, to show that under the contract Barton was not an independent contractor to do this work, and as a consequence, that the city was also liable for any injury which might have happened to plaintiff from the negligent conduct of those who were engaged in the repair of the street, though they may have been employed by Barton, and not by the city. But we may say that looking to the terms of the contract so far as they are set forth in the petition, we are of the opinion that the city did not by such contract retain the control and direction over the mode and manner of doing the work, so as to make it liable to answer for an injury-resulting from the negligence or misconduct of Barton, or one of his employes, unless it was the result of a nuisance in the streets, or something of that kind which it was the duty of the city to abate. The petition however, after stating the terms of the contract between the city and Barton, alleges as follows:

“Plaintiff says that in doing all said work, and furnishing and handling all of said material required to be done by said contract, said Barton was under the control and direction of said board of commissioners of sewers and of the city engineer of the city of Hamilton.’’

We have said that we think this does not appear from the terms of the contract in so far as they are stated in the petition, and we suppose this allegation is to be taken as the meaning the pleader attaches to the contract. But if it is to be taken as more than this, and as an allegation of fact, we suppose that it is substantially an allegation of fact that Barton was not an independent contractor, and therefore, on the authority of Cincinnati v. Stone, 5th Ohio St., 38, the city must be liable for the negligent acts of those employed by Barton.

But the fact as to this seems immaterial, when we look to other allegations of the petition. In it are averments that the defendants having excavated the street to the depth of several feet for its repair, had negligently placed some cross ties at a street crossing, so that persons could go down from the side walk to the street for the purpose of crossing the same, and had not protected said ties from being struck by passing wagons; and then it is averred that the plaintiff being about to cross said street, by stepping on said ties to the street, stood on the curb of the pavement until a street car should get out of the road on the crossing, and

“Just then a wagon, loaded with asphalt block, belonging to and contracted by said defendants and drawn by two wild and unsafe horses, and driven by one William Taylor, acting under orders and control of defendants, drove northwards on the east side of Second Street, and suddenly and without warning turned close up to said south east intersection of Second and High Streets, there being no stone there to prevent, and then eastward along High Street close to said curbing and against the west end of said railroad ties, causing one of them to fly up and strike her, causing the injury complained of. All of which conduct on the part of the defendants and the driver of said team,acting for and under the control of defendants, was wrongful, caieless and negligent.”

We think it clear that the negligence complained of was the driving of the wagon against the ties, causing one to fly up and strike plaintiff. This was the proximate cause of the accident, and the allegation is that Taylor was then the servant of both defendants, acting under their order and control, and that his conduct was careless, wrongful and negligent. If these allegations be true, (of which there is much doubt,' as in all probability Taylor was only the servant of Barton), why was the city not liable?

And yet the court in its charges to the jury, more than once makes the question of the liability of a master for an injury to another, brought about by the negligence of the servant, to depend on the fact whether there was negligence in employing him. If there was not — that is, if the master had reason to believe that he was a fit and suitable man for the business, that the master would not be liable for damages occasioned by the negligence of the servant, unless afterwards, and before the injury, the master had knowledge or notice that he was an unfit person for such employment.

For instance, this charge marked-No. 12 in the margin, was given and excepted to by the plaintiff:

“The court will say to you further that the city of Hamilton would not be liable for the acts of this driver, unless there was negligence in employing him. If he was known to be an ordinarily careful, prudent driver, used to horses and driving them, and those facts were known and understood by persons who employed him, neither they nor the city would be liable for anything that may have happened in consequence of the driving, unless it was done through his negligence — unless the parties who employed him or the city who employed these parties had some knowledge of that fact. Otherwise it must be held to be an ordinary accident, an accident which ordinary human prudence could not have provided against.”

Millikin, Shotts & Millikin, Attorneys for Plaintiff in Error.

Mr. Jones, City Solicitor, contra.

This we think was manifestly wrong, and we know of no authority in support of it, The true rule, and the ground of it are stated in Wood on Master and Servant, sec’s. 277-8-9.

There are perhaps other technical objections to this charge as given, but it may be questioned whether they are so prejudicial as to require us to reverse the judgment on those grounds. The same objection, however, applies in less degree to the first exception taken to the charge of the court, and it is on these grounds that we feel compelled to reverse the judgment, and award a new trial to the plaintiff.


author: King, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1899.)
    Before King, Haynes and Parker, JJ.
    GEORGE W. POLLITT v. WILLIAM J. FARRAR.

      Act establishing city and justices’ courts in Toledo — Requirement that appellants from those courts pay all costs adjudged before appeal unconstitutional--

    So much of the act of the legislature, passed April 25, 1898, (98 O. L., 322 sec. 621-5, R. S., Bates Statutes), as requires parties who taire their cases from the city and justices’ courts of Toledo, created by that act, to the cuurt of common pleas, to pay all of the costs adjudged against them in such city and justices’ eourts, constitutes a condition not required by the general law of the state relating to appeals from justices’ courts,and is unconstitutional ; and the common pleas court of Lucas county has no-jurisdiction to dismiss a case appealed to it from such city and justices’ court, for failure of the appellant to pay all the costs adjudged against him in such lower court.
   King, J.

August 16, 1898, the defendant in error, as plaintiff, recovered a judgment against plaintiff in error in the city and’ justice court of Toledo and Port .Lawrence township for '$10.40 debt and $7.75 costs of suit. On August 25, 1898, the defendant below gave his appeal bond, to the approval of the justice of said court. September 18, 1898 — less-than thirty days from the rendition of said judgment — the transcript and papers were filed in the clerk’s office of the-court of common pleas of Lucas county. ¡September 14, 1898, the plaintiff below moved to dismiss the appeal, because the plaintiff below had procured and filed a transcript without paying the costs taxed and adjudged against him, and without the plaintiff’s consent. This motion was heard by the court below, sustained and the appeal dismissed.

This action of the court of common pleas is assigned as error. On the hearing of the motion the plaintiff offered in evidence the affidavit of his attorney, A. F, Hanson, to the effect that he had informed plaintiff’s attorney and also the clerk of said court that for the defendant to appeal he must pay the costs. Plaintiff’s own affidavit is also filed to show that he was required by the clerk of the city and justice court to pay, and that he did pay, when he commenced his action, the sum of one dollar, and, on the rendition of the judgment the further sum-of $11,35. The affidavit of Hanson above mentioned has no other effect on the question here raised than to show that the plaintiff had not waived in any manner the payment of costs. There was also filed the affidavit of the clerk of the city and justice courts to the effect that defendant’s attorney demanded of him a transcript, and the clerk having made one had delivered the same to him, first requiring him to pay the costs of the' transcript, $2.40, which the defendant’s attorney paid,, and the clerk did not require the other costs taxed in the case, amounting to $7.75, to be paid, nor request that they, be paid, and the same were not paid.

This evidence is embodied in a bill of exceptions, and it •was upon this evidence that the court below dismissed the •appeal. It is conceded that it was dismissed by the court •below because the appellant aid not comply with the provisions contained in the act under which these justice’s •courts are now organized.

Tnis act was passed April 25, 1898, and is found in volume 93 O. L. ,at page 322. A part of this act is section 621-5, which contains these provisions, after providing for certain fees to be taxed; for instance, the plaintiff on commencing ■the suit is to pay one dollar; and hefore the trial of the case, the further sum of one dollar, and the party recovsring judgment shall be entitled to have taxed as a part of the costs in the case a fee of five dollars for his attorney, and there are some other provisions to that section, and it •closes up in this way:

“* * * Except that if any party to such action desires to take sai 1 case to a higher court, as provided by law, he shall first pay to the clerk of said court the further sum of two dollars, which shall be in full for making out the necessary transcripts, papers, etc., to take said case to said higher court, and a like fee shall be paid in the same, manner for a transcript for a lien, and he shall pay all the costs accrued lo date, and said clerk shall not deliver up said papers until said fee and costs are paid. The sum or sums so paid shall be taxed as costs of suit in favor of the party paying the same, if he be the prevailing party in the suit, in addition to any other costs to which he may be entitled by law. In criminal cases the same costs shall be paid, and in the same manner as in such proceedings before justices of the peace in townships, except that the same ■shall be paid to the said clerk, as in civil cases as provided.”

This is a long act. It amends section 621 in some ■ respects, and then adopts as supplemental to it certain sections up to and including section 7,aud then amends sections '6475, 6182, 6449, and then supplemental to that’! are five •other sections which prescribe the manner of getting jurors áor this court.

•This act in the sections supplemental to sections 621 and 649 — which are now in the statutes and made as additional sections to the original sections here amended ■ — 'provides in the first of these, either expressly or by implication, and that provision is carried through — that:

. “In all cities of the third grade of the first class, and township or townships therein, there shall be four judges and justices of the peace in and for said cities and townships.

Now,all these provisions contained in the supplementary sections are only applicable to those officials, whatever they may be, and therefore those provisions are only applicable 'to a city of the grade and class named in section 621- 1, which, it is conceded, is the city of Toledo, and therefore, in Toledo, in order to appeal a case from this court, created by this act, to the common pleas, it is necessary for the appellant to pay all of the costs that were adjudged against him in this city court, and that provides a new condition to the right to enter the court of common pleas of Lucas •county, Ohio,and that condition attaches, not to the citizens of Lucas county, but only to those who live in the city of Toledo, and the question is, is that a valid condition ?

- We are not called upon to discuss any other part of this •statute, or to refer to any other part, but only to determine •whether or not the court of common pleas was authorized to •dismiss this appeal because the appellant had not paid the costs before he took the transcript from the justices’ clerk. That would not seem to need much discussion. The supreme court of Ohio as long as the case of Kelley v. The State (6 Ohio St., 269) held that all acts and provisions relating to the jurisdiction of the court of common pleas are acts of a general nature and must have a uniform operation throughout the state. You cannot create, under the constitution of Ohio, a different condition or jurisdiction for the court of common pleas of Lucas county than in any other county in the state; nor for any township of Lucas county,, or for any city in Lucas county. This particular clause of the statute relates only to the right to go into the court of common pleas, and we are not here discussing whether it is-a valid provision to tax attorneys’ fees; although, if we were, I would say that it is a provision that has not been, looked upon with favor by the courts of Ohio. The question is — -after a judgment has been recovered and rendered, by this court, after it stands as a judgment against a party, can a party go on #nd go into the court of common pleas — - can he appeal this action, if it be such a one as under the general laws of the state is appealable, and before he appeals must he pay all the costs? The general law provides that actions may be appealed by giving bond to the satisfaction of the justice of the peace within thirty days after the rendition of judgment and securing from the justice of the peace a transcript of the proceedings had before him, for which the justice is entitled to receive his fee; then' when this transcript is filed with the court of cjmmon pleas, that makes a valid appeal to the court of common pleas. The supreme court said in a case in 53 Ohio St., 24.

“We do not think the general assembly has power to discriminate between persons and classes respecting the right to invoke the arbitrament of the courts in the adjustment of their respective rights.’’

And they say some things there with reference to attorneys’ fees, which are not pertinent here, but indicating that they would not be looked upon favorably. However, this is aside. We are clearly of opinion that the legislature-have no power to affix to the right to appeal to the court of common pleas of Lucas county, or from any township in the county, any different conditions of appeal from those-prevailing in the whole state,and therefore we hold that that part of the section is invalid. We are also of opinion that the court of common pleas was not justified in dismissing. this appeal upon the evidence, if the act were valid. The evidence shows that the clerk delivered the transcript to appellant and demanded of him the fee for the transcript, which he paid, and thereupon he filed it in the court of common pleas. Now it would seem, that having done and having paid all that was demanded of him, if there was attached a condition that these fees should be paid, that the court of common pleas should have merely held that to be a defect which did not authorize the dismissal of the appeal until a ■reasonable opportunity had been given to the appellant to comply with the provisions of the statute. But we hold that provision invalid, so that there need not be any ques. tion about our judgment upon that point, and reverse the case and remand it to the court of common pleas for further proceedings.

C. E. Longwell, for Plaintiff in Error,

A. F. Hanson, for Defendant in Error.


author: Smith, J.

text:
    (First Circuit — Butler Co., O., Circuit Court
    January Term, 1899.)
    Before Smith and Swing, JJ.
    THE STATE OF OHIO ex rel. WARREN GARD, Prosecuting Attorney of Butler County, Ohio, v. MICHEAL ZOLLER et al. County Commissioners of Butler County et al.
    v Construction of Elevator in Courthouse costing over $1000 — Advertisement for bids required—

    By the express provisons of sec. 798, Rev. Stats., where the estimated cost of any public building, or of making any addition to, or repair of any pnblic building, exceeds $1,000, and the ■plans, desoriptions, billB of material, specifications and estimates ■have been approved by the county commissioners, the notioe provided for in such section must be given, and without this •such county commissioners have no right to enter into a contract for such improvement or repair, and the contract made in this case for the repair of the court house by putting aD elevator therein, was illegal and void-
    Appeal from the Court of Common Pleas of Butler county.
   Smith, J.

The question submitted to us in this case is whether upon the pleadings and the facts as agreed upon,the commissioners of Butler county had the right, and were authorized by law to enter into a contract with Carr & Company as they undertook to do, by which Carr & Company were to erect an elevator in the Butler county court house, at their bid of $1,490.

It is admitted that when the court house was erected about thirteen years ago,there was constructed and built as a part of said building, an elevator shaft of brick and mortar, extending from the basement of the building to the fourth story thereof, with openings and doors leading to the various floors of the building for access to and egress therefrom; that an elevator has never been placed in said shaft, and which shaft is now in said courthouse ready to receive an elevator.

On October 15, 1898, Carr & Company made to the county commissioners a proposition in writing to furnish and erect in said shaft one Haven hydraulic passenger elevator, to be built in accordance with the plans and specifications, furnished,for $1,490. The proposition was received by the board, and ordered to be filed without other action. On November 5, 1898, one of the commissioners, Smyer, offered a resolution awarding the contract to Carr & Company at their bid of $1,490 according to the plans and specifications submitted by them. Thereupon another of the commissioners, Mr. Zoller, moved to amend the resolution, so as to make it a resolution to advertise for bids for building an elevator; this was lost and the original resolution passed, two of the commissioners voting for it and one against. At the time of the awarding of this contract to Carr & Company there was sufficient money in the county 'treasury to the credit of the building fund for the payment of the $1,490, the contract price, and has been ever since, but the auditor of the county inadvertently omitted to certify this, and it was not so certified until December 13, 1898, long-after the filing of the petition in this case, and perhaps not until the case was decided by the court of common pleas.

The first question presented is whether in an improvement of this character, where the contract price is over $1,000, the county commissioners are authorized to make the contract for the doing of the work without advertising for proposals therefor. Section 798, which appears in chapter 1, title 6, under the head of “Public Buildings” provides as follows:

“After such plans, descriptions, bills of material, specifications and estimates are made and approved as required by this chapter, the county auditor shall give publie notice in two of the principal papers in any such county * * * of the time and place when and where sealed proposals will be received for performing the labor and furnishing-the materials necessary to the erection of any public building * * * or any addition to or alteration thereof, and a contract or contracts based on such sealed proposals will-be made. ”

And provision is then made as to the time of publication of such notice, and what it shall contain. Then follows this sentence:

“But when the estimated cost of any public building * * * or of making any addition to or repair of any public building * * * dees not exceed $1,000 the same may be let at private contract without publication.”

It seems clear to us that if the putting in of this elevator into the court house is an addition to or repair thereof, that the commissioners, by the terms of this section, mast advertise as provided in the section, if the estimated cost is over $1,000, as was the case here. And it seems equally clear to us that the improvement in question was an addition to or an alteration of the court house. It is evident from the proposals submitted and'the specifications of the character of the work to be done, and what it would be when completed and attached to the building,that it would be a part thereof — 'Certainly a fixture, and would pass with the realty. We see no reason whatever for likening it to articles of furniture, purely personal poperty, as to which the claim is that any amount may be purchased at private sale by the commissioners, which is doubtful.

On this ground alone we would be of the opinion that the ■ commissioners should be perpetually enjoined from carrying • out this alleged contract. The counsel for the defendants however argue that section 851, Revised Statutes, allows, .(by implication at least), the commissioners to make such a ■ contract. It says:

“No proposition of any character involving an expenditure of $1,000 or upwards, shall be agreed to by the board unless the period of twenty days has elapsed since the introduction of the proposition, except by the unanimous consent of all the members present of the board, and such consent shall be taken by yeas and nays and entered on the record.”

This section appears under the heading of “ County Commissioners”, and points out their general duties and powers, ■ and was passed long before the other section to which we have referred. We see, then,no reason for holding that this r section in any way interferes with the express provisions of section 798. The design of it seems to be to prevent hasty action on the part of the commissioners in any proposition involving an expenditure of $1,000 or upwards, and to re- . quire that such expenditure be not authorized, unless the period of twenty days has elapsed since the introduction of the proposition, except by the unanimous consent of the members present,and can not in aDy way to interfere with or • change any provision which makes it the duty of the board to advertise for proposals when so directed by any statute. Entertaining this view, we do not deem it necessary «to express an opinion on any of the other questions argued, as to the failure of the commissioners to comply with the terms of the statute, or of the auditor to make the proper certificate under the provisions of section 2834b (93 Ohio Laws, 218). Their action in these matters might perhaps be corrected. But on the ground that this contract was entered into without advertising for bids under section 798, the injunction prayed for will be allowed.

Warren Gard, for Plaintiffs.

Morey, Andrews & Morey, for Defendants.


author: Caldwell, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Caldwell, Hale and Marvin, JJ.
    THE ARCADE TEA COMPANY v. JULIUS GLUECK. F. J. BATES v. THE CLEVELAND STORE FIXTURE COMPANY, [Two Cases.]

      Laws conferring special powers on common pleas court of certain county unconstitutional — Act authorizing transfer of cases on appeal from J. P. to common pleas of Cuyahoga county, to the court of insolvency of that county—
    Laws relating to the jurisdiction of the court of common pleas are laws of a general nature and must, under our constitution, have a uniform operation throughout the state. Therefore the act of the legislature,passed March 17, 1898, (93 O. L., 461),pro-viding for the transfer, by court of common pleas of Cuyahoga county, to the court of insolvency of that county, of cases cooir ing to the said common pleas court on appeal from justices of the peace, to be tried there, confer a power on the common pleas court of that county which the common pleas courts in other counties of the state do not possess, gnd is therefore unconstitutional. (On the authority of Gill v. Sealbridge, 17 O. 0., 390).
    Error to the Court of Common Pleas of Cuyahoga County,
   Caldwell, J.

The Arcade Tea Company v. Julius Glueck, and F. J. Bates v. The Cleveland Fixture Company are both disposed of in the same way although they are two separate and distinct cases. The legislature at its last session passed an act providing that the court o£ common pleas could transfer any case brought into that court by appeal from the justice of the peace to the insolvency court to be tried in the insolvency court. Now, that part of the statute conferring upon the court of common pleas authority to do that is called into question as to whether or not it is constitutional.

It is claimed that this question has been decided by the the circuit court of Butler county, in the case of Gill v. Sealbridge, 17 C. C. 390, and what that court has said about it, I will read which is better than for me to state it; and the statute there involved precisely the same question, although that pertained to the probate court.

I am reading from the 17th Ohio Circuit Court Reports, 390.

“Section 2nd of this statute attempts to confer upon the court of common pleas, of Butler county the right and jurisdiction to transfer to the probate court of the county all cases then pending in said common pleas court on appeal from justices of the peace, or which might thereafter be appealed to said court, and to confer jurisdiction on said last named court to hear and determine the same. It is expressly held in the case Kelly v. The State, 6 Ohio St., 269, that any law which relates to and regulates the jurisdiction of the court of common pleas is a law of a general nature, and must by the terms of another section of the constitution have a uniform operation throughout the state. It is clear that this section of the law under discussion does not do so. It anplies only to Butler county, and no other court of common pleas in the state has the right or authority to transfer cases pending in that court to a probate court for trial,and we are of the opinion therefore that this whole section is invalid, and that the court of common pleas had no right to transfer this case to the probate court, and con'aequently that the probate court had no right or jurisdiction to try it, and that its action was a nullity.”

The only principle involved in it is that any law that regulates the duties of the court of common pleas of the state is a law of a general nature, and such a law must have uniform operation throughout the state, and that this law for Butler county did not give such operation, and that, therefore, so far as a local law undertook to confer authority upon the court of common pleas, it was q nullity — it was unconstitutional. The same reasoning precisely applies to the question involved in these two cases, The statute gave the common pleas court authority to transfer any appeals, and errors also, that might come into that court from the justices of the peace courts, to the insolvency court, and there to be tried; and if the Butler county law is unconstitutional, this certainly is, and we see no error in Judge Smith’s reasoning in his opinion, and we therefore follow it; and that being true — the law being unconstitutional, the act under that law, of the common pleas court in transferring these two cases to the court of insolvency, was a nullity, amounted to nothing, and stands then as if it had never been done. That being true, the cases are still pending in the common pleas court, and the court of insolvency having obtained no jurisdiction over these cases, as a matter of course it follows that we have not jurisdiction, and the cases will both be dismissed here for want of jurisdiction. As to any other question.that might arise as to the jurisdiction of the insolvency court in other matters not involved in these cases, we say nothing about. One of these cases came into the court of common pleas on error, and the Tea Co. case and others came into court on appeal, That being true, they both could, under the law I refer to, and are both to be tried the same way. One is still pending in the court of common pleas on error,and the other is stilf pending there on appeal.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    THE STATE OF OHIO ex rel. C. B. MATTHEWS v. HENRY P. BOYDEN, Auditor.

      Board of Elections of Cincinnati — Authority to employ attorney—

    (1) . On the admitted facts in this ease, as hereinafter stated. Held, 1st, that the board of elections of Cincinnati had the right to employ the relator, an attorney at law, to perform the services rendered by him to such board, and from the funds appropriated to the use of said board to pay him a reasonable fee therefor, and that the same was not invalid under the provisions of sec. 1781, Rev. Stats.

      Same — Duty of City Auditor — Voucher failing to state fund on which drawn—
    (2) . Under the provisions of sec. 1765a. Rev. Stats., sub. 2& 3, it is the duty of the auditor of the city of Cincinnati, “to keep separate accounts for each specified item of appropriation made to each department, and require all vouchers to state specif!eally against which of said items the same are drawn”, and ■ that “he shall not allow the amount set aside for any appropriation to be overdrawn, or the amount appropriated for one item of expense to be drawn upon for any other purpose * * * nor unless sufficient funds out of which said voucher is payable, shall actually be in the treasury at this time to the credit to the item upon which it is drawn”. These provisions are mandatory, and as the voucher it, this case was not drawn upon any particular item, and as there were not sufficient funds to the credit of the account upon which the voucher should have been drawn to meet the same, the auditor was justified in refusing to draw his warrant in payment of the same. ■
    Mandamus.
   Smith, J.

The relator, Mr. Matthews, avers in his petition that he is an attorney at law, and that on February, 1899, he was by resolution of the board of elections of this city, employed to render legal services to it and its members, concerning their official duties pertaining to a primary and general municipal election then pending in said city, andjespecially in connection with certain injunction proceedings pending in the superior court of this city, and contempt proceedings issued against the judges of the election for the alleged violation of said injunction by reason of the performance of their official duties according to law, and the order of said board of elections. That under the statutes of the state, the board was empowered to instruct the judges acting at the election, touching their duties at such elections and the receiving and counting of ballots cast. That such court had taken jurisdiction over said primary elections,and instructed the judges of said elections in the matter of receiving and counting ballots, and had taken from said board of election their just and legal powers under the law, and said orders had been served on the very day of said election, in the afternoon when it was impossible to get authentic information to the judges of said election by proper official writs or notice, and the actiun of said judges in the confusion thereby created, was charged against them and against the clerk of said board, in contempt proceedings, which proceedings involved the right of said court to issue said injunction and interfere with and usurp the legal and statutory rights of said board of elections — that said injunction proceedings were wholly without jurisdiction and authority of law, and impeded the said board audits secretary in the discharge of their official duties pertaining to said elections,

That upon the hearing of said injunction and contempt proceedings before the judge hearing the same, it was held that the duly elected and qualified counsel for the city could not appear as an attorney therein, and that the relator by virtue of said employment attended the trial and hearing of said cause, and gave advi.ce to ssid board pertaining to its official duties therein; and presented a true and correct account to said board for his services in the sum of $500, which sum they were reasonably worth. That the board approved said account, and ordered the payment thereof, which action was duly certified by its president and secretary to the said H. P. Boyden, auditor of said city,after having been duly approved by Ellis G. Kinkead, corporation counsel. That there was then and is now money in the hands of the treasurer of said city to the credit of its general fund, and of the residue thereof, and of the appropriated estimate for the said board, and to its credit, and not otherwise appropriated, sufficient to pay relator’s claim, yet the defendant refuses to issue a warrant therefor. Wherefore it is asked that he be required to do so.

The answer of the defendant admits that the relator is an attorney at law, and the defendant is the city auditor, and' that the board of election issued to relator a voucher, addressed to the defendant, for $500, approved by the corporation counsel, in payment for certain legal services alleged to have been rendered to the board by the relator, and that the defendant refused to draw his warrant upon the treasurer therefor. He further admits that Judge Jackson of the superior court refused to allow the corporation counsel to appear for the respective defendants in the injunction and contempt proceedings. Thereupon he denies all the other allegations in the petition not admitted.

And by way of further defense defendant avers: First, that the' board of elections was not a party to either of said injunction or contempt proceedings; that the injunction proceedings were against certain judges of elections in individually,and the contempt proceedings were against Green and certain judges of election individually, and therefore said legal.services were rendered to the respective defendants individually, and not to the board of elections.

Second: The employment of relator by the board, was not authorized by a resolution of the board of legislation or council of said city, and therefore was contrary to the provisions of section 1781, Revised Statutes.

Third: There were not at the time said vouchers was preseated to defendant, nor are there now funds in the city treasury to the credit of said board, and not otherwise appropriated, sufficient to pay said voucher.

Fourth: Said voucher does not state specifically against’ which item of appropriation for the use of said board it is to be drawn, and it is therefore defective and contrary to the provisions of section 1765a, subdivision 2,Revised Statutes, etc.

Fifth: That the board employed the relator, approved' and issued said voucher without the certification of the city auditor that the money to pay therefor was in the-city treasury, specially set apart to meet said expenditure, as is required by sections 2699 and 2702,Revised Statutes..

It is earnestly urged by counsel for the defendant that if the relator on other grounds was entitled to the relief asked by him, that the fact that the legal services admittedly rendered by him, at the instance of the board, were rendered, in part’at least, for the benefit of, or in cases where the judges of election, and the clerk of the board were parties, individually, and where the board itself was not, would make a case where it was clear that the relator should not have compensation from the funds in the city treasury appropriated for the purposes of this board. While there was-a formal denial of the allegations of the petition not expressly admitted by the answer, we understand that many of the allegations of the petition as to the circumstances under which the employment of Mr. Matthews was made, the situation of affairs at the time, and the character and value of the services were substantially admitted, and some of them are.of common knowledge That under the statutes of the state, the board of elections had authority to instruct the judges of election as to their duties at an election and the receiving and counting the votes cast, and that this duty had in a manner been usurped by one of the courts, as afterwards held by the court itself, and that the just and •acknowledged powers of said board might be upheld and maintained, (as the corporation counsel was not allowed by •such court to appear in court, and represent the board), it ■seemed necessary and proper that counsel should be employed and appear for the board. If it had under any circumstances the right to employ counsel, without an authorization of the board of legislation of the city, in accordance with the provisions of section 1781, Revised Statutes, it -would seem that it should have been done in this case, and that the mere fact that the services, (in part at least) were rendered in cases to which the board was not a formal party, but the decision of which in fact vitally affected its rights, privileges and duties, ought not to prevent the board from making proper payment for such services. But in this case the allegations of the petition were that services had been rendered by the relator to the board, outside of those suits =and proceedings,

We are further of the opinion that the decision of this court in the case of Yaple v. the Board of Police Commissioners of this city, reported in 2nd Circuit Court, 406, and affirmed by the supreme court without report, 25th Law Bulletin, 336, applies to this case, and for the general reasons therein stated, that the board of elections, not withstanding the provisions of section 1781, Revised Statutes, may in a proper case employ counsel, and from the funds appropriated to their use, pay them, when it becomes necessary to protect the rights of such board,

With reference however to the third and fourth special defenses interpused by the defendant, it was shown by the ■evidence introduced in the case that the board of legislation of this city, by a specific and specific apporpristion, made in conformity with the provisions of section 2690h, Revised Statutes, provided for the board of elections for ■the first six months of the year 1899, under four beads: First, for salares of members and clerks; second, for sundry ■election expenses; third, for stationery and printing, and fourth, for pay-rolls, judges, registrars and clerks — with a certain sum total for each. It is clear we think that this bill should have been drawn on the second item, viz: for sundry election expenses. The evidence shows that when the voucher for Mr. Matthews was presented, there was $365.89 to the credit of that fund, and that there is now less than $25.00 Section 1765a, subdivision 2 and 3, provide as follows:

Robertson & Buchwalter, for Plaintiff.

Mr. Hollister, for Defendant.

“Second: He shall keep separate accounts for each specified item of appropriation made to each department, and require all vouchers to state specifically against which of said items the same are drawn. Each account •shall be accompanied by a statement in detail, in separate columns, of the several appropriations, the unpaid contracts •charged against each, and the balance standing to the credit of each. ”
“Third: He shall not allow the amount set aside for any appropriation to be overdrawn, or the amount appropriated for one item of expense to be drawn upon for any other •purpose, or by any department other than that for which the appropriation was specifically made, nor unless sufficient funds out of which said voucher is payable.shall actually be in the treasury at the time of the credit of the item upon which it is drawn.”

These provisions are mandatory,and a penalty is imposed by the same section upon the auditor if he violates them. And as there were not sufficient funds to the credit of the account upon which the voucher should have been drawn to meet the same, and as the voucher in fact was not drawn upon any particular item, the auditor was justified in refusing to draw a warrant for said services of the relator on said voucher, or until a proper voucher is presented, and there be sufficient funds in the treasury applicable thereto to meet the same. The writ will therefore be refused.


author: Douglass, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Adams, Douglass and Voorhees, JJ. (Of the Fifth Circuit, sitting in the First Circuit.)
    CALEB DODSWORTH v. THE CITY OF CINCINNATI et al.

      Successive assessments for same improvement valid—
    (1) . One assessment levied to pay the cost of improvement of a-street does not exhaust the power of council in that behalf;.: where such assessment is insufficient to meet the- whole cost of the improvement, a subsequent assessment, levied to pay. damages for change of grade, that item having been omitted' from the first assessment, held valid. Sections 2290 and 2300-construed.

      Absence of provision in ordinance for payment of assessment in ¡ cash—
    (2) . That the assessing ordinance does not provide for payment. of the assessment in cash if the abutting owner wishes so to pay, does not make the assessment absolutely null and void;: the owner has this right, and may exercise it if he desires.

      Change of grade incidental merely to improvement, Cost properly-assessable—
    (3) . Where a change of grade is not the thing that occasioned' the making of an improvement, but mere incident to such improvement, the cost of such change of grade is a proper item< to be included in the assessment.

      Condemnation of land to widen street separate from improvement' of its surface—
    (4) . Independent proceedings for the condemnation of a strip of land necessary for the improvement of a street to width ordered having been taKen, it is no defense that the sum of the condemnation and improvement assessments exceeds the preliminary estimate for the cost of the improvement. The con^-damnation and surface improvements are separate and distinct.

      Assessment for widening street assessable on lots abutting on the■ part widened—
    (5) . The condemnation being a separate improvement, the assessment therefor should not be levied on the entire length of the street improved, but only on such leDgth of the street as is' ■ widened, both sides of the street widened to be assessed.

      Assessment on remaining land of award for land taken by condemnation without regard to benefits unconstitutional—
    (6) . An assessment re-condemning from a property owner an' award made to him for property taken from him,by imposing on his abutting property an assessment by the front foot, without reference to Bpeeial benefits, is in violation of“both the state and federal constitutions, and invalid.
   Douglass, J.

This case came to this court on appeal. It is a suit .brought by Caleb Dodsworth to enjoin the collection of two assessments levied by the city of Cincinnati on property abutting on a street known as-Hamilton avenue. The initial proof was made of ordinances and legislation necessary •to the improvement, and is out of the case.

Of these assessments sought to be enjoined,that of January 25, 1893, is an assessment to cover damages paid to ■abutting property owners by reason of a change of grade, and the assessment of February 15th is an assessment to pay the cost of property condemned and the expenses of the condemnation proceedings to widen Hamilton avenue,

Caleb Dodsworth, the plaintiff, was the owner of a parcel of land along the line of this street improvement. He claims that both of these assessments are illegal ’and void, the one levied January 25th because:

First — 'An earlier ordinance, passed December, 1892, levying a tax for the surface improvement, which ]was paid by him, exhausted the power of the council in (thatjbehalf, and made future and independent additional assessments ■illegal and void.

Second-r-Because his property does not abut on the street as ordered improved.

Third — Because the plaintiff was not"afforded an opportunity to pay any of said assessmentsln cash,

Fourth — 'Because the assessment of January 25, 1893, amounting to $2.38x, added to the assessment] of $6.53x, •exceeds the preliminary estimate for thej'totalj'cost of the work, which was $>7.68x.

Fifth — Because the damage sought’ to be [assessed was occasioned by a change of grade, and the owners]: were not liable to be assessed therefor under section 2301 of the-Revised Statutes.

By way of narrowing this contention, the city of Cincinnati concedes that the assessment of January, 1893, should be reduced so as to bring it within the preliminary estimate of 1892 when added to the assessment levied in December, which was paid.

As to the first of these contentions it is argued that because the ordinance, passed December 27, 1892, had levied an assessment to provide a fund to pay one-half the entire cost and expenses of improving Hamilton avenue, and the city having exercised this right of assessment, it is estopped from making any additional assessments under the statutes of Ohio as construed by the supreme court, and that Council at no time had the power to make any additional assessments.

Section 2290 provides:

“When it appears to the council that a special assessment is invalid, by reason of informality or irregularity in the proceedings, or when an assessment is adjudged to be illegal by a court of competent jurisdiction, the council may order a re-assessment, whether the improvement has been made or not. ”

. Section 2300 provides that:

“If an assessment proves insufficient to pay for the improvement and expenses incident thereto, the council may make an additional pro rata assessment to supply such deficiency;”

And is for an emergency of this kind.

The court does not subscribe to the view taken and claim made in this case that the power of the city council was exhausted in making the assessment of December, 1892, and that no further assessment can be made. We think sections 2290 and 2300, as construed by the supreme court, give the right to make a re-assessment; and that the assessment of January 25, 1893, comes within the provisions of these sections; and that they do apply in a case of this kind-

It is said that because the Dodsworth property does not abut upon the street as ordered improved, the assessment is invalid. The evidence in this case Bhows that the strip of ground appropriated was necessary in order to make the street the width to which it had been ordered made, and we-think that, as a matter of^fact, this objection falls to the' ground.

As to the contention that the plaintiff was not given an opportunity to pay in cash, we hold that the plaintiff has a right so to pay his assessment, and may exercise it if he desires; but that the assessing ordinance does not make provision for such a payment does not make the assessment, absolutely null and void.

As to the objection that the assessment of $2.38x, added to the assessment of $6.5369x levied December, 1893, exceeds the preliminary estimate, this does not make the assessment void except pro tanto, which is conceded by the-city.

The fifth defense to the assessment of January 25, 1893,, is that the assessment is to cover damages occasioned by reason of the change of grade. The claim is that property owners cannot be assessed for such damages, and this is-true under certain circumstances. If an improvement had-formerly been made and the property owners had paid for-it, and a change of grade was sought to be made, and that was the purpose of the improvement and no other, and not because a surface improvement had to be made, the case would be different. As far as the record shows, the declarations of the officers making the improvement that this property had not been assessed for a former change of' grade, made the change in this improvement an incident to such improvement. The change .of grade is not the thing that occasioned the making of this improvement, and we think it is only in a case where it is shown by the proof and • as a fact that that change of grade occasioned the expense, and was not a simple incident to the improvement, that as-sessments can not be made. In any event, the whole end •and purpose in this case being to improve the street, we ■think that that point is not well taken.

On this first assessment our conclusion is that on this -branch of the case as to the assessment levied January, 1893, the same be enjoined only as to the excess above the .preliminary estimate.

The validity of the assessment of February 15, 1893, is • attacked on all the grounds just considered, and in addition it is said, first: that the assessment is void because it should ■have been apportioned on all property abutting on the entire length of the avenue; and because said ordinance as.-sessed the cost of condemnation only on the property abutting the part which was appropriated on the west side of Hamilton avenue; that if it should not have been assessed ■on the whole length of Hamilton avenue as ordered improved, it should at least have been assessed on both sides • of such part of Hamilton avenue as . included the property • appropriated to widen the street. This last proposition is ■ conceded by the city. It is further contended that the as-sessment is invalid because the ordinance is unconstitutional in this: that you cannot condemn property and pay • condemnation money,and then, under the guise of taxation, without reference to benefits by alleging front foot assessments, re-condemn the money out of the pocket of the owner • of the land. Further, that the assessment is invalid because the sum of the three assessments is in excess of the preliminary estimate. This objection is not good, because independent proceedings concerning this condemnation resting upon a basis of its own are what the condemnation rests on.

Now, in addition to the contentions to whichjl have referred very briefly,is the contention that where the land, aa fin this case, goes for the purpose of widening the^street, its cost should be assessed upon the whole length of the street as.ordered improved.¿¿We think the widening of the street at this point was a separate improvement, and that the assessment for its cost should be' local, and ;ithe assessment will be held valid and binding only as to such lots and lands as bound and abut on this improvement. The improvement, within the constitutional meaning, has reference to the specific thing of definite location which has been already added to the street improvement. So that we conclude that the contention of the city is right in this regard; but that the assessment cannot be justified under the holding in 172 U. S. Reports, known as the Baker v. Norwood case, because that case is authority for the fact that no authority exists for paying the owner his condemnation money, and then adopting a rule of assessment whereby, in violation of the constitution, both state and federal, the entire award to him is re-condemned by imposing on his abutting property an assessment by the front foot without reference to special benefits.

Drausin Wulsin, for Plaintiff.

Ellis G. Kinkead and John V Campbell, Corporation Counsel, for Defendant.

The injunction as to this second, or we may call it the third or condemnation assessment, is made perpetual, and the second assessment, in so far as it exceeds the preliminary estimate,is also enjoined.