author: MARRIOTT, J.

text:
    MUNICIPAL CORPORATIONS — NEGLIGENCE-PLEADING
    [Wayne (5th) Court of Appeals,
    January Term, 1913.]
    Voorhees, Shields and Marriott, JJ.
    Ashland (Vil.) v. T. R. Marks.
    1. Village Liable to Tenant of Municipally Owned Building for Loss by Fire Negligently Caused by Village.
    When a village through its council contracts with a natural gas company for the installation, as an experiment, of certain heating apparatus in a municipally owned opera house building, such apparatus to be paid for by the village if found satisfactory otherwise to be removed by the gas company, and members of council directed the location of the heater and supervised its installation, the village is liable to a tenant of the building for loss of goods destroyed by the burning of the building caused by a gas explosion.
    2. Gas Company Installing Heating Apparatus Subject to Approval not Independent Contractor Liable to Tenant of Building for Fire Loss.
    A gas company installing certain heating apparatus in a municipally owned building under the direction and supervision of village officers, to be paid for by the village if found satisfactory, otherwise to remove it, is not an independent contractor. Hence, under the rule of respondeat superior the gas company, as a codefendant with the village in an action brought by a tenant of the building for loss of goods destroyed by fire resulting from a gas explosion, is properly dismissed.
    3. Verdict for Less than Total Fire Loss Indicates Protection by Court and Consideration by Jury of Owner's Rights as to Tenant’s Negligence in Preventing Removal of Property.
    In an action against a village by a tenant of a municipally owned
    • building for loss of goods negligently caused by fire, destroying the building and contents, a verdict for less than the value of the goods destroyed indicates that the rights of the village were protected by the charge of the court with reference to alleged negligence of the tenant in locking his door and failing to use due diligence in the removal of his goods.
    4. Sending Petition to Jury without Objection with Instructions to Disregard Averments Regarding Dismissed Defendant not Erroneous.
    While it is the better practice to file an amended petition from which a defendant who has been dismissed from the case has been eliminated, yet when this has not been done and the original petition is sent to the jury room without objection being made thereto, and the jury is instructed to disregard all averments regarding the defendant who has been dismissed, a reviewing court will not treat the sending of the original petition to the jury room as error.
    Error.
   MARRIOTT, J.

This case had its origin in Ashland county, Ohio. The suit was originally filed by F. R. Marks against the village of Ash-land to recover for damages to certain property of the plaintiff destroyed by fire, claimed to have been caused by the negligence of the officials of said village, managing and controlling thé opera house building owned by the village.

The original petition was filed on February 12, 1904, and the case has had a somewhat varied career in the courts from that time to the present.

The plaintiff claims that he occupied a room on the lower floor of the opera house building, in which he conducted a general supply store, dealing in stoves, tinware, etc., and also stored his wares under a contract of lease with the said village.

The cause was first tried to a jury, resulting in a disagreement, and thereafter the plaintiff amended his petition, making the Logan Natural Gas & Fuel Co. a party defendant, charging joint negligence of the village and said gas company. The gas company answered, and the cause went to trial upon the issues joined by the pleadings, at the October term of the court of common pleas of Ashland county, to wit, January 11,1907, resulting in a verdict in favor of the plaintiff against the Logan Natural Gas Co. for $500. A motion for a new trial was filed, overruled, and judgment rendered upon the verdict. The plaintiff below also filed a motion for a new trial, which was overruled, and both parties prosecuted error to the circuit court.

The cause was heard in the circuit court at the May term, 1907, where.the judgment against the gas company was reversed, the circuit court holding that Marks, under the pleadings, could not maintain as matter of law his action or recover against the gas company, and that the court below erred in refusing to> give to the jury certain charges requested by the gas company, and it was ordered that said judgment and proceedings of the court of common pleas against the gas company be, and the same were, reversed, set aside and held for naught, and the gas company restored to all things lost by reason of the judgment, and the cause was remanded to the court of common pleas of Ash-land county, to be proceeded in according to the rights of the parties.

The proceedings in error prosecuted by Marks against the village of Ashland, upon a petition in error, were heard by the circuit court at the November term thereof, 1907, where the record shows that the cause came on to be heard upon the petition in error, bill of exceptions, original papers and pleadings, and upon consideration whereof the judgment of the court of common pleas was reversed, for the reason that the court of common pleas erred in its charge to the jury and erred in rendering judgment against the plaintiff in error, F. R. Marks, and the cause was remanded to the court of common pleas of Ash-land county for a new trial and to be proceeded in as provided by law.

Thereafter, on November 24,1908, a motion by the plaintiff, Marks, was filed, praying for a change of venue, which motion was heard December 5,1908, and by order of the court the cause •was transferred from Ashland county to Wayne county, upon the ground, as the entry shows, “that a fair and impartial trial of the cause could not be had in Ashland county. ’ ’

After the cause was transferred to Wayne county, the defendant, the Logan Natural Gas & Fuel Co., withdrew its answer and filed a demurrer to the petition, upon the ground that the petition did not state facts sufficient to constitute a cause of action against the gas company. This demurrer was sustained by the court, and the gas company dismissed from the action, and the cause, as between the plaintiff and the village, came on to trial before a jury at the October term of court, to wit, November 23, 1911, resulting in a verdict in favor of the plaintiff, Marks, against the village of Ashland in the sum of $5,690.

Motion: for a new trial was filed by plaintiff in error, the village of Ashland, overruled, and judgment entered upon the verdict, to reverse which judgment these proceedings in error are now prosecuted to this court.

The petition in error alleges numerous grounds of error, but the principal grounds urged by plaintiff in error are: (1) That the verdict of the jury was not sustained by the evidence; (2) That the court erred in sustaining the demurrer filed by the gas company to the petition; and (3) in dismissing the gas company from the case.

The circuit court having had the question of the sufficiency of the petition before it in the proceedings prosecuted from the court of common pleas of Ashland county, and having there held, as the entry shows, that the plaintiff below, F. R. Marks, under the pleadings could not maintain, as matter of law, his action or recover against the gas company, this court will not review that finding, and therefore hold that there was no error in the judgment of the court below in sustaining the demurrer filed by the gas company to the petition.

This court is in accord with the finding of the circuit court of Ashland county in its holding that the plaintiff below, under the averments of the petition, had no right of action against the Logan Natural Gas & Fuel Co., nor could he recover in this action against that company.

Under the averments of the petition it is not shown or claimed that there was any contractural relation between the gas company and the plaintiff Marks, that there was any privity of contract between Marks and the Logan Gas Co. This being admitted, Marks could not recover against the gas company for any failure upon its part to properly perform its contract made with the village.

On the contrary the petition avers that the contract or permission under which the gas company installed the alleged dangerous and unsafe heating apparatus in the auditorium of the opera house was made between the village and the gas company; that the gas company performed its work in a negligent, careless, improper and unsafe manner, by reason of which carelessness on the part of the gas company the building was burned and plaintiffs property destroyed.

Under the averments of the petition we think there was no cause of action shown entitling the plaintiff to recover against the gas company.

In Bailey v. Gas Co. 2 Circ. Dec. 656 (4 R. 471), which case was affirmed, no opinion Bailey v. Gas Co. 52 Ohio St. 623, the doctrine here referred to is distinctly held. There the gas company entered into a contract with S. Bros, to install a fixture for heating by natural gas a steam boiler. The first time it was used the boiler exploded, and the claim was made that the explosion was caused by reason of the negligence of the gas company in putting in and connecting up the fixtures. But it was held that the contractural relations of the gas company were with S. Bros, alone; that there was no contractural relation between the gas company and the engineer; that the gas company owed no duty to the engineer that rendered it liable to him for the alleged negligence.

In the case of Morrissey v. Cincinnati, 33 O. C. C. 541 (14 N. S. 19), and which in its facts is very similar to the ease at bar, the plaintiff brought suit against the city as well as the contractor, alleging a joint liability and charging negligence against Mahoney, the contractor.

A demurrer was filed to the petition, as in the case at bar, upon the ground that the petition did not state the facts sufficient to constitute a cause of action against the contractor. The demurrer was sustained and Mahoney dismissed from the case. The cause then proceeded to trial upon the issues made by the petition, and the answer of the city, and at the close of plaintiff’s testimony the ease was withdrawn from the jury and judgment rendered against the plaintiff.

•The question of “independent contractor” was raised in that case, as in this. The case at bar is a much stronger case for the application of the rule discussed. In the case at bar there is no specific contract averred or shown in the record between the village of Ashland, the owner of .the opera house, and the gas company, under which the gas company was to install the heater. The averment is that the “defendant, the village of Ashland, authorized and permitted the defendant, the Logan Natural Gas & Fuel Col, to install a dangerous and unsafe heating apparatus in the auditorium of the opera house as an experimentetc. ■

We think it quite clear that under the averments of the petition the relation of master and servant existed between the village and the gas company, and not the relation of an “independent contractor.”

The general rule is that if the master authorizes or directs the doing of a particular thing, he is liable for the negligence of the servant, and if he employs another to do for him a particular thing, under his immediate authority or control, the master is still liable; that this liability rests upon the general rule of respondeat superior.

We think the court did not err in sustaining the demurrer of the gas company to the petition, and in dismissing the company from the ease.

It is further contended by the plaintiff in error that the verdict of the jury was not sustained by the evidence. It is claimed “that the proof does not show by a preponderance of the evidence that the fire in question originated at the heater.” On the contrary it is contended that the fire which destroyed the building originated upon the stage, from furnaces under the stage, which had long been in use and which were far removed from the newly installed gas heater.

The testimony as to the origin of the fire was quite conflicting, but we have read the entire record, and we think the evidence fairly establishes the contention of the plaintiff below that the fire started at the gas heater, and was the result of negligence and carelessness in placing and installing the same, and that the verdict of the jury was warranted by the evidence shown in the record.

The petition charges negligence on the part of the village in installing and placing in the auditorium of the opera house an apparatus for heating the auditorium with natural gas; that the same was by the authority and permission of the village installed by the gas company in “a negligent, careless, improper and unsafe manner, pursuant to said authority given it;” that by reason of the negligent manner in which said gas heater was installed and connected up, the building was burned and plaintiff’s property destroyed.

“Negligence is the want of care. It is the violation'of a duty which one owres to so'conduct himself and his business as not to injure others in person or property. In other words, it is the want of such, degree of care as a person of ordinary prudence or foresight would exercise under like circumstances.”

The question whether the doing of a certain act or thing is negligence depends largely upon the circumstances surrounding each particular case. Under certain circumstances and surroundings an act may be entirely proper and harmless, while the same act done under other and different circumstances would be grossly negligent or even criminal, depending entirely on the time, place and circumstances at and under which the act is done.

We think there was evidence of negligence quite sufficient to warrant the jury in returning its verdict for plaintiff Marks, and that the court committed no error in entering judgment thereon.

The plaintiff in error further contends that the Logan Natural Gas Co. occupied the relation of an “independent contractor, ’ ’ and that the city can not be held for the negligent acts of such contractor; and counsel have prepared and submitted to the court a very able and elaborate brief on the law of “independent contracts” and the rule exempting employers from liability for damages where work is done by an “independent contractor. ’ ’

This issue is not made in the pleadings, and the second amended answer, upon which this case was tried, makes no averment as to an “independent contractor.” Little if any evidence appears in the record tending to establish the claim made in argument that the gas company in its relation to the village was an “independent contractor.” We may nevertheless express our views upon that phase of the case.

We think the record falls very short of establishing a case of “independent contractor,” from whatever angle it may be viewed. Whether a person occupies the relation of an “independent contractor” must be determined from the terms and conditions of the contract. If the contract is in writing the language of the instrument will determine.

We have heretofore noted the fact that there was no written contract between the village and the gas company. The minutes of the proceedings of the city counsel are most meager and throw but little light upon the subject or the terms of the contract, if any was had. The village owned an opera house building, containing at least three rooms on the lower or ground floor, occupied by tenants, to whom the city owed a duty of protection against damage to person or property from wrongful or negligent acts of itself, its agents or employees. The upper or second story was used as an auditorium, where the public generally were invited to assemble and witness public entertainments at all times. The auditorium being a place of public resort, and being under the care and control of the village authorities, a very high degree of care for the protection and safety of the public was imposed upon those charged with so great a responsibility.

If those in charge of such a place wished to “experiment” with a dangerous appliance for heating, common prudence and a proper regard for the public safety would seem to have dictated that the experiment and test of the efficiency of the apparatus be made in some other place than the auditorium of an opera house. Yet the record discloses that the village council “authorized and permitted” the Logan gas company to install in the auditorium of this public hall one of its new and untested heating apparatus “as an experiment,” with the agreement that if it proved satisfactory, the city would permit the Logan Gas Co. to install two of its apparatus. If not, they would not pay for the one installed.

In pursuance of this agreement the gas company installed the heating apparatus, which the record we think fairly shows caused the destruction of the building, practically within two days after the gas was turned into it. It is fortunate that the fire happened at the noon hour instead of at night, when the auditoritím might have been filled by citizens of Ashland.

It is true, as a general rule, that one who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work, not in itself unlawful or of such a nature that it is likely to become a nuisance, or to subject other persons to unusual danger, according to the contractor’s own methods, and they being subject to control, except as to the result of his work, and subject to other qualifications hereinafter stated, will not be answerable for the wrongs of such contractor * * * * in the prosecution of such work.” See Thompson, Negligence, Sec. 621.

But the case at bar does not fall within the rule just quoted for the obvious reason that it is not shown that the work done by the gas company was not subject to the control of the village. On the contrary the record shows that one of the members of the council at least, MeAdoo, was in charge and had supervision of the installing of this heater.

Moreover, one of the “other qualifications” of the rule is “that if the master authorizes or directs the doing of. the particular thing,” he is liable for the negligence of the servant; * * * this liability rests upon the general rule of respondent superior. * * * This rule is founded on the power of control and direction, which the superior has the right to exercise, and which for the safety of other persons he is bound to exercise over the acts of his subordinates.

There is a class of cases where the liability of the employer can not be avoided by the employment of an “independent contractor.” One exception to this rule is found where the employer, from the nature and character of thé work, is under a duty to other persons to see that the work is carefully and properly performed. There is a class of cases where the owner of property is under such obligation to strangers and other persons to see that any work done on such property is done in a manner not to injure such persons or strangers, and the law will not permit him to escape this liability by the intervention of an “independent contractor.”

When the evidence brings any given case within this class, the employer will be held liable notwithstanding any contract he may make with a third person to perform the work. Thompson, Negligence, See. 539; Covington & C. Bridge Co. v. Steinbrock, 61 Ohio St. 215, 222 [55 N. E. 618; 76 Am. St. 375].

We think the case at bar, as shown by the evidence, is brought clearly within the foregoing rule. Moreover, the evidence shows that the village authorities not only directed where the heater should be placed, but reserved control over the manner of doing the work. They were present while the work was being done, supervised it, and inspected it after it was done.

We are of the opinion that the relation between the parties to the work in the case at bar was not an independent one, and that the rule of respondeat superior applies.

It is urged by counsel for plaintiff in error in their brief, but it is not one of the grounds assigned in the petition in error, “that the petition in the trial below went to the jury when they retired to deliberate, and we think the plaintiff should have filed an amended petition eliminating all reference to the Logan Natural Gas & Fuel Co.;” and they therefore claim that they were prejudiced by the submission of the ease to the jury in the form in which the petition went to the jury; that the allegations of the petition against the Logan Natural Gas & Fuel Company would have a tendency to prejudice the minds of the jury and to confuse the jury in their deliberations.

We do not think so. First, the record fails to disclose that counsel for plaintiff in error (defendant below) offered any objection to the submission of the case in the manner in which it was submitted, nor did they suggest to the court the propriety of requiring the plaintiff below to amend his petition, eliminating the Logan Natural Gas & Fuel Co. Moreover, we find that the court gave them complete protection in his charge, wherein he instructed the jury that they should not consider the averments of the petition relating to the Logan Natural Gas & Fuel Co. “for the reason that the Logan Natural Gas & Fuel Co. had been dismissed from the case, and all allusion to it as a defendant in the case should be eliminated from your consideration.”

We may notice one further claim urged upon the court by plaintiff in error. The answer of the plaintiff in error charges negligence upon the plaintiff below, and avers that he was negligent in that he locked the doors of his place of business and was not diligent in removing his wares from the building, and by reason of that negligence he suffered the loss.

No negligence is imputed to Marks as to the method of installing the apparatus, or as to the primary cause of the injury, to wit: the explosion of the gas, the burning of the building, which destroyed or damaged his property. But the negligence charged to Marks was in his failure to remove or permit the removal of his property from the burning building.

The negligence, if established, would not wholly defeat a recovery, but would only go to the extent and amount of the loss occasioned by his negligence in the reduction of the amount of recovery.

On the other hand, it is insisted that even though Marks might have removed some of his goods, he could not possibly have removed all, and that in the very nature of things he would be entitled to recover from the defendant (plaintiff in error) if the defendant was at all responsible to him for anything of value of so much of the goods as he could not have saved.

This question was fairly put to the jury by the court, and the jury were instructed to consider, the evidence reflecting upon Mark’s action in locking the door, if they found the door was locked, and in his negligence in failing to remove or to permit the removal of his goods, if they found that such refusal was shown in the evidence.

We think the instruction of the court was right, and that the plaintiff in error was thoroughly protected by the court’s charge. It would appear from the amount of the recovery, as compared with the amount of loss sustained, that the jury must have regarded the court’s charge in that respect and returned a verdict in such an amount as they found the plaintiff had been damaged.

Upon a full consideration of the whole case we have reached the conclusion that there is no error apparent in the record prejudicial to the plaintiff in error, and the judgment is affirmed with costs but without penalty. Cause remanded for execution.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    MORTGAGES — PAYMENT
    [Cuyahoga (8th) Circuit Court,
    June 8, 1908.]
    Winch, Henry and Marvin, JJ.
    Mary J. Shafer v. W. E. Ames.
    Decree Finding Conditions of Mortgage Performed is Bar to Action on Note.
    When the holder and assignee of a mortgage note and mortgage brings suit for foreclosure of the mortgage in the county where the land is situated without asking for personal judgment,, and the defendant by answer and cross-petition asks for cancellation of both note and mortgage on the ground that the amount of the note and mortgage has been paid to an agent of the plaintiff, a decree of the court finding that the conditions of the mortgage has been performed supports a plea of res adjucUcata when interposed as a defense to an action on the note begun in another county.
    Error.

      Burton & Dale and H, G. Gahn, for plaintiff in error.

      E. II. Herbkersman and Dorr E. Warner, for defendant in error.
   HENRY, J.

Below the defendants motion for judgment upon the pleadings was granted. Our attention is called to the fact that this motion was interposed before plaintiff was in default for reply to the supplemental answer, and that such reply was filed before the motion was granted. ¥e have, therefore, examined the reply and find that the denial therein contained of the' former adjudication pleaded in said supplementary answer is but a mere conclusion of law and does not imply a denial of the facts alleged in said answer; hence the latter is taken as true. The question, therefore, is whether it states a defense to the action.

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

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

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

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

The judgment below is affirmed.

Winch and Marvin, JJ., concur.


text:
    MASTER AND SERVANT
    [Richland (5tli) Circuit Court,
    October, 1908.]
    Winch, Henry and Marvin, JJ., of Eighth Circuit Sitting.

      Martha M. Snyder, Admx., v. American Cigar Co.
    1. Workman in General Employment of One, Servant of Another.
    A workman who is in, the general employment of one person, may become, by adoption, the employe also of another, when that other person has the right of control of the workman in his employment.
    2. A Verdict for Defendant Directed When Plaintiff’s Evidence only Shows Negligence of One Who Would be a Fellow-Servant, if Other Allegations of His Petition are True.
    When in an action for wrongful death, plaintiff’s petition and reply seeks to establish the relationship of master and servant, and makes allegations of negligence on the part of the employer in that he failed to furnish a safe place to work and employed a - servant whom he knew or should have known to be incompetent; and plaintiff’s evidence simply shows negligence on the part of one who would be a fellow-servant under his theory of the case but no negligence on the part of the employer, it is the duty of the court to direct a verdict for the defendant.
    3. Failure of Defendant to Aver Relation of Master and Servant if Plaintiff Fails to Establish Relation.
    When plaintiff seeks to recover upon the theory that the relationship of master and servant existed, but fails to introduce any evidence which would make defendant liable as an employer, it is of no moment that defendant in his answer has made no reference to the relationship of master and servant.
    Error.

       Affirmed no opinion, Snyder v. American Cigar Co., 81 Ohio St. 561.

   HENRY, J.

The action, below, commenced originally to recover damages for personal injuries sustained by Howard S. Snyder, since deceased, seems from the allegations of the petition to have been converted into or supplanted by an action under favor avowedly, of Sec. 6134 and 6135 R. S. (Secs. 10770 G. C. et seq.), for death by wrongful act, in which form it was brought to issue and tried, with the result that at the close of the plaintiff’s evidence, and on motion by the defendant; a verdict in the latter’s favor was directed by the court.

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

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

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

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

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

It thus appears to have been the purpose of the pleader in drafting the plaintiff’s petition and reply to set up the existence of the relation of master and servant between plaintiff’s intestate and the defendant, and to .count upon the rights and duties growing out of that relation; and it is indeed possible, under the decisions in this state, for one who is in the general employ of one person to become by a sort of adoption the employe also of another; the right of control being one at least of the tests applied to establish the existence of the relation of master and servant under these special circumstances. McCafferty v. Dock Co., 5 Circ. Dec. 262 (11 R. 457).

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

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

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

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

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

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

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

The judgment below is affirmed.

Winch and Marvin, JJ., concur.


text:
    MUNICIPAL CORPORATIONS — TOWNSHIPS
    [Summit (8th) Circuit Court,
    April, 1907.]
    Winch, Henry and Marvin, JJ.
    Northfield Tp. v. Macedonia Vil.
    Township Funds may be Divided between Township and Newly Created Corporation.
    The act of March 28, 1906 (98 O. L., 129), providing for the division of township funds between the township and a village which has been created out of a part of such township, is a valid exercise of the legislative power and is constitutional.
    Error.

      Grant, Sieber & Mather, for plaintiff in error.

      Stuart & Stuart, for defendant in error.
   HENRY, J.

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

Some of these contentions proceed upon the theory that the political sub-division of the state are entitled inter se, and as Between themselves and the state, to the constitutional rights of private persons. In truth, however, they are to be regarded, in these relations, merely as political agencies of the state, and, as such, within the scope of the authority of the legislature to deal with them as it pleases, subject to such constitutional limitations as specifically restrict the exercise of such authority. Worcester v. Worcester Consol. St. Ry., 196 U. S., 539 [25 Sup. Ct. 327].

The case of State v. Board of Education, etc., 12 Circ. Dec. 423 (22 R. 224) although correctly decided, should, we think, be distinguished from the case at bar and should not have been assimilated to Rairden v. Holden, 15 Ohio St. 207, relative to the impairment of the vested rights of private persons by retrospective legislation. We hold, also, that Howell v. Fry, 19 Ohio St. 556, relative to the right of jury trial, has no application to the case before us, inasmuch as the statute here in question provides substantially for an equitable accounting between political subdivisions of the state before a tribunal specially clothed with appropriate jurisdiction, to the end that a proper division of public funds in hand and in course of collection may be made between them. The parties to such a proceeding and the nature of the proceeding itself, alike negative the application of the constitutional guaranty of jury trial.

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

Nor does this act violate Art. 12 Sec. 5 of the constitution, providing that a tax shall be applied only to the distinctly stated purpose for which it has been lawfully levied. It specially provides that only “a proper division of the township funds” shall be made. Hence it forbids the division of the proceeds of any tax levied for a township purpose unless the laws provide for a correlative village purpose, to which a proper part of it may still be applied in the village which has been created from the township, and which helped to produce the fund. It is not to be presumed that the probate judge will administer this act in violation of the Constitution, since it may be carried out in consonance therewith.

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

The judgment below is affirmed.

Winch and Marvin, JJ., concur.


text:
    ABATEMENT
    [Summit (8th) Circuit Court,
    April, 1907.]
    Winch, Henry and Marvin, JJ.
    State ex rel Hagelbarger, v. New York Life Ins. Co.
    Abatement of Action to Cancel Certificate of Insurance Company.
    When the only relief which plaintiff could, in any event, have had is rendered obsolete by the lapse of time since the petition was filed, the petition will be dismissed.

      F. S. Monnett and Musser, Kohler & Mottinger, for plaintiff.

      Garfield, Howe <& Westenhaver, for defendant.
   HENRY, J.

This canse came on to be heard upon several motions of the defendant, one of which is in substance a plea in abatement founded upon the proposition that the only relief which plaintiff could in any event have had is rendered obsolete by the lapse of time since the petition was filed.

The defendant is a foreign corporation which, at the time of the filing of the petition herein, was licensed by the certificate of the superintendent of insurance, issued pursuant to Secs. 284 and 3604 R. S. (Secs. 646, 9365 G. C. et seq.), to transact the business of life insurance in Ohio. The former section provides that such certificates so issued shall expire “on the first day of April next after they were issued.” The defendant’s certificate in force at the commencement of this proceeding expired April 1, 1906.

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

Inasmuch, however, as the certificate in question has expired, the case falls within the principle announced in Security Mut. Life Ins. Co. v. Prewitt, 200 U. S., 466 [26 Sup. Ct. 314], the syllabus whereof is as follows:

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

It is true that on rehearing it was held, in Security Mut. Life Ins. Co. v. Prewitt, 202 U. S. 246 [26 Sup. Ct. 619] that:

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

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

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

But-though a foreign life insurance company’s certificate of authority to transact business in this state were revoked for sufficient cause, the prohibition to transact its business thenceforward in Ohio would not extend to the winding up of business already undertaken. In such case, Sec. 277 R. S. (Sec. 635 G. C.), provides that:

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

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

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

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

Winch and Marvin, JJ., concur.


text:
    MECHANICS’ LIENS
    [Summit (8th). Circuit Court,
    April, 1907.]
    Winch, Henry and Marvin, JJ.
    Caroline Culver Hale v. Isabella A. Coleman et al.
    Mechanic’s Lien not to be Antedated by Judicial Decree.
    A court has no'jurisdiction to amend by judicial decree a mechanic’s lien, by antedating the first item of the account as filed to mate it conform to the actual date of the furnishing of material.
    Appeal.

      Grant, Sieber & Mather, for plaintiff.

      Dick, Doyle & Bryan, Musser, Kohler & Mottinger, Wise, Laub and Boylan <& Brouse, for defendants in error.
   HENRY, J.

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

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

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

The authorities are in sharp conflict. For such amendment is Miller v. Condit, 52 Minn. 455, [55 N. W., 47], Against it is Landau v. Cottrill, 159 Mo. 308, [60 S. W., 64].

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

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

Winch and Marvin, JJ., concur.


text:
    JUDGMENTS
    [Cuyahoga (8th) Circuit Court,
    November 4, 1908.]
    Winch, Henry and Marvin, JJ.

      A. J. Cole v. T. Dave Brown et al.
    No Property Right can be Acquired under Judgment Subsequently Reversed.

      No property rights as between tbe parties thereto can be acquired under a judgment wbieb is subsequently reversed, even though the proceedings relied upon are had under a mandate from the Supreme Court affirming the judgment.
    Error.

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

      J. J. McCormick, for defendants in error.

      Affirmed no opinion, Cole v. Brown, 83 Ohio St. 507.

   HENRY, J.

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

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

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

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

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

The judgment below is affirmed.

Marvin, J., concurs.

Winch, J., not sitting.


text:
    TAXES — WORDS AND PHRASES
    [Cuyahoga (8th) Circuit Court,
    November 4, 1908.]
    Winch, Henry and Marvin, JJ.
    John Anisfield Co. v. Cleveland C., C. & St. L. Ry.
    "Taxes Levied” Means Taxes on Duplicate.
    In a covenant regarding taxes thereafter “levied” it is presumed that the parties meant taxes thereafter to be ascertained upon the preparation of the county auditor’s-tax duplicate.
    Error.

      Emil Joseph, for plaintiff in error.

      Cook, McGowan & Foote, for defendant in error.
   HENRY, J.

We are of opinion that the parties, in the covenant of their written contract of lease regarding the payment of taxes- and assessments thereafter “levied” meant to use the term levied in the popular, albeit possibly a loose, sense in which it has admittedly been employed sometimes both by the Supreme Court and the general assembly, viz., to mean ascertained on the preparation of the duplicate by the county auditor.

The judgment is affirmed.

Marvin, J., concurs.

Winch, J., not sitting.


text:
    COURTS — TRUSTS AND TRUSTEES
    [Cuyahoga (8th) Circuit Court,
    November 9, 1908.]
    Winch, Henry and Marvin, JJ.
    Arthur G. Pike et al v. Willis E. White.
    1. Probate Court Has no Jurisdiction to Supervise Testamentary Trusts.
    The probate court has no jurisdiction conferred upon it by law, to supervise or control the administration of a testamentary trust.
    2. Jurisdiction Cannot be Conferred in Testamentary Matters to Probate Court.
    Jurisdiction can not be conferred upon the probate court by will or any other private appointment, or by consent, empowering it to act as a court in supervising the administration of a testamentary trust.
    3. Probate Court Acts as Arbiter Only Under Will Conferring Supervisory Powers.
    When the probate court assumes to act under the provisions of a will conferring upon it supervisory powers over the administration of a testamentary trust, its action is that of a mere arbitrator from which error will not lie.
    Error.

      Burrows & Mason, for plaintiff in error.

      Gristuold & White and Alfred Glum, for defendants in error.
   HENRY, J.

The parties to this proceeding in error stand as they stood in relation to the original application in the probate court, and also in the proceedings in error prosecuted in the court of common pleas. . The facts in brief are as follows:

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

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

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

Upon examination of the statutes conferring jurisdiction upon the probate court, both generally,' as in Secs. 524 and 525 R. S. (Secs. 10492, 10493 G. C.), and with special reference to testamentary trustees, as in Sec. 6330 R. S. (Sec. 11031 G. C.) etc., we fail to find that the probate court has any jurisdiction whatever conferred by law upon it to supervise or control the administration of a testamentary trust. See Rockel, Ohio Probate Practice, Secs. 1295 and 1296.

On the contrary, jurisdiction in this behalf is vested exclusively in the court of common pleas by Sec. 6202 R. S. (Secs. 10857, 10858 G. C.).

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

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

Marvin J., concurs.

Winch, J., not sitting.


author: BY THE COURT.

text:
    JUDGMENTS — TRIAL
    [Hamilton (1st) Court of Appeals,
    February 14, 1914.]
    Swing, Jones and Jones, JJ.

      Frank Boggs v. J. Willard Haley et al.
    Weight of Evidence Presented Determines Judgment, Absence of Important Evidence can not be Considered.
    A court is bound by the evidence adduced at the trial and must give judgment accordingly, notwithstanding it regards with suspicion the failure to offer in evidence papers and documents having an important bearing on the issue joined and which were before the same court in a former case.
    Appeal.

      Clore, Dickerson & Clayton, for defendants.

      Kramer & Betiman and J os. A. Keadin, for plaintiff.

      Affirmed no opinion, Boggs v. Haley, 92 Ohio St. 526.

   BY THE COURT.

This is an action in which plaintiff sought to recover money which he had been induced through alleged fraud to invest with defendant in a chemical business.

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

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

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

Swing, Jones (E. H.) and Jones (O. B.), concur.


author: GORMAN, J.

text:
    STREET RAILWAYS
    [Hamilton (1st) Court of Appeals,
    June 1, 1915.]
    Jones, Jones and Gorman, JJ.

       Cincinnati (City) et al. v. David L. Carpenter et al.
    Street Railway Consents Statutes Unconstitutional.
    The provision of Sec. 9105 G. C., requiring that the consents of abutting property owners shall be produced before council can, by ordinance, grant the right to construct or extend a street railway line, gives to such property owners a voice in determining a question over which the municipality, speaking through its council, has exclusive control, and the provision is therefore a delegation of legislative power and is unconstitutional and of no effect.
    Error.

      Walter M. Schoenle and Alfred Bettman, for Cincinnati.

      Joseph Wilby and George H. Warrington, for Cincinnati Trac. Co. and Cincinnati Street Ry.

      Dinsmore & Shohl, for defendants in error.

      Reversed, Carpenter v. Cincinnati, 92 Ohio St. 473 [111 N. E. 153.]

   GORMAN, J.

This is a proceeding in error to reverse a judgment of the Superior Court of Cincinnati perpetually enjoining the plaintiffs in error, the Cincinnati Traction Co. and the Cincinnati Street Ry., from constructing and operating under ordinance No. 104 — 1913, on the Reading road between Clinton Springs avenue and the Paddack road, any street railway tracks or routes, and from placing any poles, wires, etc., for the operation thereon of an electric street railway.

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

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

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

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

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

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

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

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

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

Section.3777 G. C., among other things provides that:

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

The provisions of law “ relating to the construction, operation and extension of street railways within or without or partly within and without any municipal corporation” are to be found in Chap. 10, Div. 2, Title 9, part second of the General Code, under Private Corporations, Sec. 9105. Section 3777 above referred to is found under Part One, Title 12, Div. 3, Municipal Corporations, in the General Code.

Section 9105' among' other things provides that:

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

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

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

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

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

The title to the streets and highways within a municipality, under Sec. 3585 G. C., and the decisions of our courts, is vested in the municipality in trust for the use of and by the public. Cincinnati & Spring Grove St. Ry. v. Cumminsville, 14 Ohio St. 523; Callen v. Electric Light Co., 66 Ohio St. 166 [64 N. E. 141; 58 L. R. A. 782]; Louisville & N. Ry. Co. v. Cincinnati, 76 Ohio St., 481 [81 N. E. 983].

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

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

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

The right to consent or withhold consent to construct or extend a street railway has been held not to be a property right, but a personal right. It was not given for the purpose of protecting a property right. Hamilton, G. & C. Trac. Co. v. Parish, 67 Ohio St. 181 [65 N. E. 1011; 60 L. R. A. 531]; Roberts v. Easton, 19 Ohio St. 78, 88.

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

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

In the case of Isom v. Low Fare Ry. 29 O. C. C. 583 (10 N. S. 89), the circuit court of Cuyahoga county, Judges Wilson (of the second circuit), Donahue (of the fifth circuit), and Wildman (of the sixth circuit) held these sections, then Secs. 1536-188 and 1536-189 E. S., requiring consents as a condition precedent, to be valid and constitutional exercise of legislative power. The point was made in the attack upon them that they create a favored class upon whom a privilege is bestowed to the exclusion of others having equal rights, and that the privilege which the owners of a majority of the abutting feet frontage of lots and lands enjoyed in being allowed to consent or withhold consent to the grant of a right to construct and operate a street railway over a given street, operated as an arbitrary classification of individuals. It was contended that this privilege extended to these property owners is violative of Sec. 1 of the fourteenth amendment of the constitution of the United States, in that it denies to all persons equal protection of the law, and deprives persons of their property without due process of law. An examination of the printed record in that case, No. 10871 Supreme Court, at page 6, fifth assignment of error in the petition in error, will disclose that this was the constitutional objection raised to the validity of these consent statutes. The question of their conflict with any of the provisions of the constitution of Ohio was not raised in that case. A reference to the decision in this case by the circuit court, will disclose that the court was referring to the objections urged to the validity of these consent sections — that they provided for an arbitrary classification of individuals not based upon any substantial fundamental reason therefor; that the ereation of such a class and conferring upon it such a privilege (of consenting or withholding consents) as is conferred by these statutes were and are a mere arbitrary classification, and grant special privileges to such favored class. Now such an objection in the nature of things must be founded on the claim that these statutes are violative of the fourteenth amendment of the federal constitution and the section thereof above referred to. The judgment of the circuit court was affirmed, no opinion, Low Fare Ry v. Isom, 77 Ohio St. 638. There were several other points raised in that case, and in view of the past utterances of the Supreme Court itself we are not at liberty to speculate as to the grounds upon which the affirmance was based. The point was not urged, either in the circuit court or in the Supreme Court, that these sections are unconstitutional because there was a delegation of legislative power to these individuals by the general assembly. The circuit court recognized the force of the contention made that these statutes are unconstitutional on the grounds above stated, but was constrained to hold that the constitutionality of this legislation is no longer an open question in this state by reason of the decisions of the Supreme Court in Roberts v. Easton, supra; Mt. Auburn Cable Ry. v. Neare, 54 Ohio St. 153 [24 N. E. 768]; Hamilton G. & C. Trac. Co. v. Parish, supra, and other eases not cited.

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

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

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

In Dayton v. Bauman, 66 Ohio St. 379, 394 [64 N. E. 433] the court says:

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

In the case of Milwaukee Mechanics’ Ins. Co. v. Russell, 65 Ohio St. 230, 257 [62 N. E. 338; 56 L. R. A. 159] the court says:

“Assuming that they might have been made, it is perfectly clear that no question of the kind was either passed upon or considered by the court, or brought to its attention, or even alluded to by counsel. This plainly appears from the report of the case. It has long been the established rule of this court, as well as the settled law on this subject,-that: ‘A reported .decision, although in a case where the question might have been raised, is entitled to no consideration whatever as settling, by judicial determination, a principle not passed upon nor raised at the time of the adjudication. ’ Fouts v. State, 8 Ohio St. 98, 123. Where the questions were not raised nor considered, ‘it is as if they were not in the case at all. ’ State v. Pugh, 43 Ohio St. 121, 123; Wambaugh, Study of Cases, Sec. 17.”

To the same effect are the decisions in State v. Beacon, 66 Ohio St. 491-507 [64 N. E. 427; 90 Am. St. 599]; State v. Yates, 66 Ohio St. 546, 548 [64 N. E. 570].

As we have seen that the constitutional question raised as to these consent sections in the circuit court of Cuyahoga county and the Supreme Court in the Isom case, supra, was that of the federal constitution — fourteenth amendment — and not the question of the violation of the Ohio constitution, and inasmuch as no constitutional questions were raised, argued or decided in Roberts v. Easton, supra; Mt. Auburn Cable Ry. v. Neare, supra, and Hamilton G. & C. Trac. Co. v. Parish, supra, in which decisions these consent sections were assumed to be constitutional and valid, we feel that we are not precluded from considering the question of their validity under the constitution of Ohio, in view of the rule adopted by the Supreme Court above referred to.

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

In the case of Cincinnati W. & Z. Ry. v. Clinton Co. (Comrs.), 1 Ohio St. 77, Judge Ranney, in announcing the decision of the court in an able and exhaustive opinion, considers the question of the legislature delegating the authority with which it is vested by the constitution, Art. 2, Sec. 1, on page 87, well says:

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

And on page 88, he says:

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

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

In the case of Harmon v. State, 66 Ohio St. 249 [64 N. E. 117; 58 L. R. A. 618], the Supreme Court in passing upon the constitutionality of the Roberts law, which delegated to a district examiner of steam engineers the power and authority to grant or withhold a license to operate a steam engine, says, on page 258:

"Thus allowing the examiner of a district to, in effect, make the law for his district, limited only by his will as to what shall constitute the standard of the qualification of engineers, is granting legislative power to such examiner, and the appeal to the chief examiner does not change the matter, o
“By Art. 2, See. 1, of the constitution all legislative power is vested in the general assembly, and this power can not be delegated to individuals or officers. (Citing Matthews v. Murphy, 23 Ky. Law Rep. 750, [63 S. W., 785; 54 L. R. A. 415.])
“Said Sect. 6 of the Roberts law is therefore in conflict with said Art. 2 Sec. 1, of the constitution, and is void. ’ ’

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

See, also, State v. Garver, 66 Ohio St. 555-564 [64 N. E. 573], in which case the court says, in passing upon the constitutionality of the law to limit the compensation of county officers in certain counties depending upon the vote of the electors of the county:

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

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

Local option laws depending for their operation upon a vote of all the people of the district to be affected have been lately held to be valid, and constitutional, upon the theory that the voice of the people was not required to bring the law into existence, but only to give it operative force and effect, and therefore there is no delegation of legislative power to pass the law in such eases, but only a delegation of power to determine whether or not the law, after it is passed, shall be operative in the district. And while the weight of authority supports the validity of local option laws, nevertheless there are respectable authorities holding that such laws are unconstitutional as a delegation of legislative power. See Wall, Ex parte, 48 Cal., 279 [17 Am. Rep. 425]; Rice v. Foster, 4 Harr. (Del.) 479; Maize v. State, 4 Ind., 342; State v. Geebrick, 5 Ia., 495.

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

In Gordon v. State, 46 Ohio St. 607, 633, [23 N. E. 63; 6 L. R. A. 749], the court says: 1

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

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

A part of a statute may be unconstitutional and void and the remainder valid. 29 Am. & Eng. Ency. of Law 2d Ed., 570, and cases cited; Kelley v. State, 6 Ohio St. 269; State v. Yates, supra.

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

Furthermore, it may be that council under the grant of power in Sec. 3714 G. C. would have ample power to grant permission to construct or extend street railways by virtue of its control over the streets. See Hattersley v. Waterville, 26 O. C. C. 226 (4 N. S. 243).

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

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

No attempt has ever been .made to defend these statutes. They confer upon a favored class a personal privilege or an interest in the public estate, the public highways, which they can and in many instances do sell and resell for money and other valuable considerations, instances of which appear in Hamilton G. & C. Trac. Co. v. Parish, supra.

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

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

The judgment of the superior court will therefore be reversed.

Jones, (E. H.) and Jones (O. B.) concur.