author: Parker, J.,

text:
    IMPROVEMENT UNDER THE COUNTY DITCH LAW.
    Circuit Court of Fulton County.
    John R. Mason et al v. Commissioners of Fulton County et al.
    Decided, May, 1907.

      Ditches and Drains — Power of County Commissioners to Improve Watercourse which is Partly Artificial — Water-course Established by Prescription — Location of Ditch in Living Stream — Injunction against Collection of Ditch Assessment — Estoppel—Apportionment• of Expenses — Finding of Commissioners Final, When — Defect in Proceedings not Fatal, When — Sections 4490, 4491 and 4500.
    1. County commissioners have power to improve a water-course, partly natural .and partly artificial, hy deepening, widening, straightening and otherwise improving it. Greene County Commissioners v. Harbine, 74 O. S., 318, distinguished.
    2. Although Section 4500, Revised Statutes, provides that the uninterrupted use of an established ditch for seven years constitutes a natural water-course, notwithstanding errors, defects, or irregularities in the location, establishment, or construction thereof, it was not designed to take away rights which the public had acquired over it as a ditch or drain.
    3. County commissioners may locate a ditch substantially along the line of the channel of, or adjacent to, or in the valley of, a living stream or water-course, though they have no power to convert a living stream of water into a ditch by proceedings for the location and construction of a ditch.
    4. Plaintiffs are estopped to question the right of county commissioners to establish and maintain a ditch or water-course, which has existed for a great many years and has been improved on several occasions by proceedings instituted by the county commissioners, and the plaintiffs have in some of these proceedings paid the assessments without objection.
    5. Where plaintiffs, by reason of artificial improvements on their own lands above, helped to make it necessary for the protection of the lands below that improvements be made in a ditch or watercourse, they should contribute toward payment thereof.
    6. Unless injustice is apparent in the assessment of the expense incurred in ditch improvement proceedings, a court of equity will not disturb the findings of the county commissioners.
    7. Under Sections 4490 and 4491,-Revised statutes, the failure of county commissioners to find affirmatively and enter upon their docket that a ditch improvement is conducive to the public health, convenience and welfare is an irregularity that may he disregarded or cured, and is not necessarily fatal to the validity of the proceedings.
    Wildman, J.; ITaynbs, J., concurs; Parker, J., concurs in a separate opinion.
   Heard on motion to dismiss action, made at close of evidence on behalf of plaintiff.

I approach the consideration of the case, the title of which I have just given, with considerable misgiving and with an appreciation of the great importance of the issues involved and the magnitude of the investigation that would be required to apprise the court of the precise character and condition of every tract of land involved in the inquiry, with a view to the ascertainment of the equity or inequity of the assessments made on such lands.

We have before us a proceeding to enjoin the collection of assessments for an improvement under the county ditch law. I will not go into any elaborate recital of the facts which have been disclosed to us by the evidence. The petition is brought by one John R. Mason in behalf of himself and some three hundred or more others who, he informs us, are interested in like manner with himself in the restraining of the collection of the assessments upon the lands assessed for said improvement.

The ditch or water-course sought to be enlarged, widened and deepened by the proceedings of the county commissioners seems to be of a somewhat double character. The' proceedings are described as the improvement of what is known as “the Bean Creek Improvement” and also “Chesterfield No. 2.” The claimed water-course extends from a point in the northerly line of the county of Fulton southwesterly until it strikes the line of Williams county, and its entire extent is said to be some twenty-five miles. It is supposed to drain a large section of territory, the precise acreage of which it is not essential to state, but it runs well up into the thousands, something over 75,000 acres, I believe, if we consider the land which the persons favoring the improvement claim to be benefited by it.

The first question which confronts us — not the one first stated in argument or brief, but the one which seems of vital consequence to the whole inquiry — is as to the jurisdictional power of the county commissioners to make the sort of improvement which is described in this proceeding and to make it by the procedure which has been adopted. We are confronted with a recent decision of the Supreme Court of this state, that of Greene County v. Harbine, 74 Ohio St., 318, which for the first time, so far as we are aware, attempts to add to the statutory definition of the word “water-course,” as used in the county ditch law. The statute, Section 4447, Revised Statutes, provides, substantially, for two things, which will be noted ás I read the section:

“The commissioners of any county, at any regular or called session, may, in the manner provided in this chapter, when the same is necessary to drain any lots, lands, public or corporate road or railroad, and will be conducive to public health, convenience, or welfare, cairse to be located and constructed, straightened, widened, altered, deepened, boxed, or tiled, any ditch, drain, or watercourse, or box or tile any portion thereof.”

That is the first sort of improvement to which I referred, and the provision following the word “or” which I now read constitutes the second kind of improvement to which I have made reference—

“Or cause the channel of all or any part of any river, creek, or run, within -such county, to be improved by straightening, widening, deepening, or changing the same, or by removing from adjacent lands any timber, brush, trees, or other substance liable to form obstruction therein.”

The first part of the section provides for the improving of a ditch or drain, the second part of the improving of a natural water-course comprised within the terms “river, creek or run.”

In Section 4448, Revised Statutes, we have the statutory definition of the word “ditch” as follows: - '

“The word ‘ditch’ as used in this chapter shall be held to include a drain or water-course.”

The Supreme Court, having this section before it, after discussion by counsel for the litigants in the case cited, gave a construction of its own, which 1 read in the syllalms, on page 318:

“The word ‘water-course’ as used in the county ditch law, Title 67Chap. 1, Rev. Stat., is synonymous with the word ‘drain,’ and the county commissioners are without authority to convert a living stream of water into a ditch by proceedings for the locating and constructing of a ditch.”

In the case before the Supreme Court, it was contented by the owner of a certain milldam that the object of a contemplated improvement of a stream by the county commissioners was to destroy his milldam and to do it without recourse to another section of our statutes which I need not stop to read, under which the county commissioners are authorized to proceed for the removal of a milldam from a water-course. This was denied by the defendants in the case, but it was not denied that the stream in which the milldam was maintained was a natural water-course; that-it was such a stream as would not come under the ordinary definition of the term ditch. It was contended, however, by counsel who were seeking to collect the assessment that the statutory definition which I have read in Section 4448, Revised Statutes, so enlarged the term “ditch” as to make it include not only a water-course which had been constructed by artificial means, but also a natural stream such as has the character of a river. The Supreme Court, however, did not adopt this contention and came to the conclusion which is embodied in the syllabus which I have read. And this latest announcement of the Supreme Court upon the subject would seem to dispose of the question of the present power of the county commissioners to change a living stream having a natural flow of water within banks, such as we know to be a river, or creek, or brook, into a ditch or drain.

There is no qualification, however, in this decision, of the power of the commissioners to remove obstructions from a river or cause the channel of a river, creek or run to be improved in the other ways specified in Section 4447, Revised Statutes, to-wit, by widening, deepening or changing the same.

The petition before us and upon which the plaintiff bases his claims to equitable relief on behalf of himself and other persons affected, recites that the petition which was theretofore filed with the commissioners prayed for the deepening, widening, straightening and otherwise improving a certain water-course, partly natural and partly artificial, known as Bean creek, with its branches in said county.

Without tarrying long upon this particular branch of the ease, important as it is, we have arrived at a conclusion from an examination of the evidence offered on behalf of the plaintiff, I should have said, perhaps, in my statement of the present status of the case, that at the close of the plaintiff’s evidence a motion was made to us by the defendants for a judgment, upon the ground that the evidence offered by the plaintiff would not justify the equitable interposition of the court. The evidence clearly discloses that from a very early period in the history of this county a water-course has been maintained along the greater part of the line of the proposed improvement. It has perhaps been extended from time to time, and it has certainly been improved at different times in the course of the years, and assessments have been made upon property owners near and remote for the cost of such improvements. Up to the present time, so far as we are informed, no contention has been made by anyone that this had not become a drain or water-course subject to the jurisdiction of the county commissioners under the statutes as to ditches, drains and water-courses.

Now, we have one section of the ditch law which may have some incidental bearing upon the effect of this long recognition of the so-called Bean creek improvement as a county ditch. It is Section 4500, Revised Statutes. I read it:

“AYhen a ditch has been established and constructed for the public health; convenience, or welfare, either by private agreement between two or more individuals, whose real property has been affected thereby, or by a board of township trustees, or by a board of county commissioners, and such ditch has been used for the purpose of drainage of private lands or public highways for seven years or more, without obstruction or interruption, the same shall be, and hereby is declared to be, a public watercourse, notwithstanding errors, defects, or irregularities in the location, establishment, or construction of the same, and such public water-course shall, in all respects, be considered and treated as a natural water-course, and the public shall have and possess, in and to such public water-course, the same rights and privileges which pertain and relate to natural water-courses,”

The last clauses of this section are somewhat peculiar and at first reading might seem to throw some obscurity upon the construction of the section. It can hardly be contended, however, that it was the intention of the legislators that after the uninterrupted use of an established ditch for seven years, even if it had been erroneously or irregularly located, it should become a public water-course and that thereupon the commissioners should lose their jurisdiction over it to improve by deepening or enlarging or straightening its channel. We think that this is rather a statutory limitation against claims of error and irregularity in the original construction, and that, although the section says that it shall be treated as a natural water-course and the public shall have and possess in and to it the same rights and privileges which pertain and relate to natural water-courses, it was not designed to take away any rights which the public had acquired over it as a ditch or drain.

Now, the principal error, which it is claimed is a jurisdictional one, is substantially this, although not stated, perhaps, in precisely these words, that the county commissioners in the original location of this ditch and in their location of the contemplated improvement, are placing it along the line of the channel of a living stream or water-course, and that that sort of a location is one which the law will not permit, and it is contended that the decision in Greene County v. Harbine, supra, substantially so asserts. The ITarbine case says that the county commissioners are without authority to convert a living stream of water into a ditch by proceedings for the locating and constructing of a ditch. It does not say that the commissioners may not locate a ditch substantially along the line of one, or adjacent to, or in the valley of, a living stream or water-course. But if they could or not, the error would be one in locating the ditch where they had no jurisdictional or proper power to locate it. But here we have a construction which in the petition is described as partly natural and partly artificial, and which has existed for I know not how many years, but certainly a good many, and which has been improved upon several different occasions by proceedings instituted before the county commissioners. In some of these proceedings some of the very lands now sought to be assessed and owned or managed' by some of these .claimants said to be represented by Mr. Mason, the plaintiff, were assessed to pay for those former improvements, and no objection seems to have been raised.

We think that, applying the general principles as to the acquiring of easements by prescription, and also the principles embodied in Section 4500, Revised Statutes, it is too late now to question the right of the commissioners to the establishment and maintenance of what is known as the Bean creek improvement. That rights are acquired not only by individuals by long use, but that the public may also acquire such rights is a doctrine which needs no support by citation of authority. It would not be hard to find numerous adjudications in support of the position. In a case which happens to have been cited for another purpose I have found some authority which would entirely justify, I think, the holding that the public have established by long, public and undisputed use the character of this improvement. The case to which I refer is Cleveland v. Bag & Paper Co., 72 Ohio St., 324. It was cited, perhaps, by counsel for the purpose of showing the acquisition by long use of a right by a private individual, but the principle of the ease applies just as clearly in favor of the public, where there has been a like uninterrupted and undisputed public use.

This improvement is said by the plaintiff to be partly natural and partly artificial, or, rather, that it is the deepening, widening, straightening and otherwise improving of a certain watercourse, partly natural and partly artificial, known as Bean creek, etc. And the question presents itself as to what are the rights of the landowners along the line of such a water-course, or landowners near to such water-course and who drain toward it and ultimately into it.

It is urged with very much force and after industrious research among the authorities and unquestionably industrious examination of the facts involved in this case, that lands owned by the plaintiffs here and lying, some of them, miles from the proposed improvement, are not benefited within the meaning of the law so as to justify the imposition upon them of any part of the cost of the improvement. And it' is also insisted, as an incident to this claim, that these landowners have a right to discharge the surface water from their lands or to drain their lands by tiling in such wise as even to increase the flow of streams running into Bean creek. It is said that where there is a natural water-course — a living stream — the owners, in the first place, have a right to the natural drainage of their lands; that when they bought their lands they bought the lands with the right attached to them as an incident, and that the lower lands over which the waters might flow owe a service to the land above. Authority has been cited in support of the contention, and we think that some of it goes the full length of the claim made by counsel for plaintiff. But is this the law recognized in Ohio ? Is it in harmony with the principles which have been established or suggested in the adjudications which have reached our court of last resort?

In a case much relied on and often quoted in the progress of the case, Blue v. Wentz, 54 Ohio St., 247, the Supreme Court held that certain lands were not liable to assessment for the cost of a ditch improvement, and in arriving at this conclusion laid down certain principles to which we may justly look for guidance in the determination of the rights of the present litigants. I read from page 247 (this language is in the syllabus) :

“A lower tenement,is under a natural servitude to a higher one to receive from it all the surface water, accumulating from falling rains and melting snows, or from natural springs, that naturally flow from it to and upon the lower 'one. This advantage of the higher tenement is a part of the property of the owner in it, and he is not indebted to the lower tenement therefor.
"In making an assessment on lands, benefited by„artificial drainage, the extent of their watershed is not the proper rule, but the amount of surface water for which artificial drainage is required, to make them cultivable, and the benefits that will accrue to the lands from such drainage. However much water may fall on them or arise from natural springs, if, by reason of their situation, they have adequate natural drainage therefor, they are not liable for the cost of artificial drainage to other lands. ’ ’

On pages 254 and 255 Judge Minshall, who announced the opinion for the court, very carefully guarded th,e rule which he was laying down to cover this class of cases. He says (using a portion of the language which we find embodied in the syllabus and with other phraseology qualifying the doctrine) :

"It is a principle of property well recognized in many of the states, and particularly in Ohio, that, where lands are situated as above supposed, the lower tenement is under what is called a natural servitude to receive such waters as flow to and upon it from a higher one, provided the industry of man has not been used to create the servitude. The right which the higher tenement has to require the lower one to receive from it the surface water that naturally drains to and upon it, is a right incident to the higher tenement, and a part of the property of the owner in it; and for any invasion of this right the law will afford him a remedy.” ■

Several authorities are cited in support of the doctrine, among them Washburn, Easements, from which several quotations have been read by counsel for plaintiff.

Among the cases cited in support of the qualification of this doctrine is the case of Butler v. Peck, 16 Ohio St., 334, holding that where upon the lands of B there is a marshy basin, from which, in times of high water, a portion of the water contained in the basin overflows its rim and naturally finds its way through a swale to and upon the lands of P, while the remaining portion of the water of the basin has no outlet, and is dissipated by evaporation, B can not rightfully, by an artificial drain, conduct the water that has no natural outlet from the basin, and along said swale, so as to cause them to flow upon the lands of P to his damage.

Of course, there is no suggestion in that case as to riparian rights; that is, the right to increase the drainage from land by artificial means, so as to accelerate or increase the flow in a natural water-course — a stream or river; a swale is mentioned in the decision. But after all, the general principle seems to be enunciated that a person has certain natural rights which he may maintain with regard to the discharge of water from his land and he is not liable for damages arising therefrom; but in this case as in the other, the doctrine seems to be qualified by the feature that when he increases or changes the natural course of events by his own industry, or by artificial means, then he becomes, to a certain extent, responsible for the results.

There is no claim in the present suit for damages. There is no suit brought against these upper landowners upon the theory that they have damaged some one below, but it seems to be a conceded fact that, as to a number of persons who are said to be represented by the plaintiff, they have treated their lands artificially ; that they have improved the drainage of their lands into the various tributaries to Bean creek, and that they may thereby have increased or accelerated the flow of water in Bean creek. Even if no more water flowed into Bean creek by reason of this artificial drainage than flowed before, still the constant or more rapid accumulation of the waters by artificial drainage might cause such injurious results below as would call for the more rapid taking away of the water from the lower part of the stream. But it can not be said that there will be no increase in the actual aggregate dicharge of water during a season by reason of artificial drainage, because the water which is permitted to stand upon the surface of the lands will oftentimes by gradual evaporation pass off in another direction, instead of taking the course by rivulet, brooklet or creek, and so finding its way down to the larger streams.

The county commissioners deemed these upper lands benefited in greater or less degree by reason of the improvement of what we have called the Bean creek improvement and Chesterfield No. 2. It is not now altogether a.question as to the extent to which the lands above have been artificially drained. If, by reason of the improvement of Bean creek improvement and Chesterfield No. 2, facility is given to the carrying away of water which may be brought down by future artificial drainage from above, we think that it is a matter which has to be taken into consideration, and we have the evidence of several witnesses who have apparently permitted Mr. Mason to represent them as their agent in the bringing of this suit, that they have actually tiled to a considerable extent their lands, both upland and lowland, which are said by the commissioners to be benefited and which are sought to be assessed. Mr. Ely so testified with rer gard to his land, Mr. James Randel as to his, Mr. E. IT. Butler, Mr. A. M. Rogers, Mfi. J. M. Keesy, Mr. W. M. Griffin, and perhaps others. This is but illustrative of the fact that many of these people deem it beneficial to their lands to drain them by artificial means; they are not satisfied to let the water flow away by merely natural means.

Tootle v. Clifton, 22 Ohio St., 247, was a case of damage caused by the increased flow of water from upper land upon lower. It was held that the erection of an embankment upon one’s own land, whereby the surface water on the adjoining land of another is prevented from flowing in its natural course, and caused to flow off in a different direction over the land of the latter, is a nuisance for which an action may be maintained without showing any actual damage, and for which nominal damages, at least, may be recovered. In that case it was also held that title by prescription may be acquired by twenty-one years’ adverse enjoyment of an easement. In Washburn’s work on Easements I think,there is, to a certain extent, a recognition of the same idea as to the increase of the flow of water by artificial means, and 'that it is not treated as a right to which protection will be afforded in the way claimed by counsel here.

In Blue v. Wentz, supra, the court lay down another rule exactly in line with the idea which I am endeavoring to express. On page 255 it is said:

“But if the lands of the plaintiff were subject to assessment, the rule adopted for making the apportionment would still be open to objection. The benefits for which an assessment may be made, must relate to the betterment of the land for the purposes to which it may reasonably be put. It is difficult to see how this may be done by simply establishing the amount of its watershed. It is not the rain that falls on the land that determines its need of drainage — rain is necessary to its fertility —but it is the amount that falls on it for which artificial drainage is needed. This, from the natural situation of the land, may be little or nothing; and where it is nothing, there can be no ground for an assessment upon it for the purposes of drainage, however much rain may fall on it. The situation of lands with respect to drainage is a controlling factor in their value; the purchaser pays for this advantage in acquiring his property; and there is no principle of justice upon which others, less favorably situated, can compel him to contribute toward making their lands as good as his in the matter of drainage. Each owner has the right to enjoy his property with its advantages - and he can not be deprived of his advantages for the benefit of others upon some fictitious notion of benefits conferred.”

There is no hint or suggestion in these Ohio cases that the criterion of assessability. upon plaintiffs’ land is to find, if we can, whether the waters below in the improvement will back up upon the plaintiffs’ lands. I find no suggestion of that kind. Counsel, however, seem to have entertained the view that if with perfect facility the plaintiffs may discharge the water from their lands by either natural or artificial means and if those waters can not get back to them, that then they will not be benefited by any improvement below. We think that this is not a just rule nor the rule contemplated by the law. We think that if, by reason of the artificial improving of their own lands above, the plaintiffs have helped to make it necessary for the protection of the lands below to make these contemplated improvements, then they should equitably help to pay for them. Surely there is nothing unjust in that; if they have necessitated this expense they should' contribute to its payment. We are not inclined to think that by the present contemplated improvement or improvements, in time of flood or freshet the waters will be prevented from backing up upon the lands of the plaintiffs. We are entirely in harmony with the contention of the plaintiffs in that regard; but our judgment is, that that is not the determining principle here. The question is: Will they be benefited by having conferred upon them the right to pour this water out from their lands in such wise that it will increase the flow in the improvement below? If they are assessed for this benefit or claimed benefit, it is by reason of this principle.

The case of Winters v. Fangboner et al, decided by this court in Sandusky, is, in this respect^ quite analogous to the present case, and the same conclusion was reached by the court.

There are some incidental matters involved here. I think that I have sufficiently discussed the two leading questions which have been presented to make clear the views entertained by the court. There are certain minor questions which, perhaps, should not be forgotten, and to which I will briefly refer.

It is claimed that the assessments made are inequitable; that they were not made upon a careful examination of each tract of land; that the commissioners did not go upon all of these premises and view them; and that, therefore, there ought to be a readjustment and reapportionment, if the assessments are permitted to stand at all. The burden is upon the plaintiff to show the inequitjr of the apportionment, and we are not satisfied that there is anything substantially inequitable in the principles upon which the commissioners have made the assessments. We do not think that the law requires them to go upon each individual tract of land. The law does require that they shall go along the line of the contemplated improvement; that they shall do it with a view of determining the necessity for it, and, of course, they should avail themselves of all proper means to make a just estimate of the benefit to each tract of land by reason of the contemplated improvement. This, we think, they have sought to do, and the presumption is, that their judgment is not at fault. We can not presume error in this regard, and the law indeed does not permit us to disturb the assessments which they have made except for gross inequity or injustice. Such has not been disclosed to us. There is another matter to which I wish to refer beforé I end what I have to say, and that is the sort of doubtful position occupied by the plaintiff here in the representative capacity in which he brings this suit, and also the incidental question raised by the demurrer. Demurrers were filed by the auditor, treasurer and county commissioners, setting up different grounds of claimed insufficiency in the petition. One was, that there was a misjoinder of causes of action; another, that there was a misjoinder of plaintiffs. There is but one plaintiff in fact, although he seeks to sue for the benefit of all.

We think that there is much force in the contention of counsel for defendants, that, even if these three hundred or more persons were all nominal plaintiffs, after we got past the question of jurisdiction to establish the improvement, they are not precisely upon the same footing. The interests of the so-called plaintiffs are identical in claiming that this is a natural water-course and that the commissioners have no right to make the improvement with regard to it which they seek to make. We have disposed of that question. But when it comes to an adjustment of the assessments, no one landowner is interested in having the assessment upon any other landowner decreased; he is interested in having the assessment upon his own land decreased, and that might very naturally result in an increase of the assessments upon others. Their rights do not lie along the same line; they are rather antagonistic than harmonious. It is to. the financial interest of each landowner to place the assessment upon others rather than himself, if the burden is to be borne by assessment at all; and while each individual landowner might have a claim for a reduction of the assessment upon him, or to the setting of it aside altogether, we fail to see that he has any such interest in the assessments made upon others as would justify the joining of them in one action. Perhaps I ought not to say that we fail to see that this could be done. What I mean to say is, that we think, as I said at the outset of this particular branch of the inquiry, that there is much force in the contention of' the defendants, and if we found it necessary to touch that question and if these persons were all plaintiffs, we should, perhaps, hold the demurrer upon the ground of misjoinder of claims well taken.

The real plaintiff is John R. Mason, suing in his own behalf and in behalf of others. So far as his land is concerned', his assessment is trivial, and he says Jiimself that it is more a matter of principle than of money; it makes no difference whether the assessment is fifty cents or whether it -is five dollars, or whether it is any other sum, he is contending for a principle rather than to be saved from as expenditure of money. Courts do not sit to decide abstractions; there are too many substantial matters constantly pressing upon the courts for their consideration to permit the spending of very much time in the consideration of abstract principles. It is true, however, that courts will decide questions of right and will maintain the right of a party to litigate, although they may render judgment for nominal damages, when going with the awarding of nominal damages is the setting of some principle which may be important to him in the future. A trespass case, for instance, will be maintained, where 'one is trespassing upon land under- claim of right or title, for which the courts will award nominal damages, although he may have done no mischief, because there is involved the determination of whether his right to enter and persist in entering can be maintained.

I will not tarry longer upon the question of the right of Mr. Mason to sue, except to make a mere reference to the ease of Quinlan v. Myers, 29 Ohio St., 500, which holds, in substance, that if the nominal plaintiff, who sues not only in his own behalf but in behalf of others, fails to maintain his individual action, the whole case will fall, and to refer to'1 the statement made by Mr. Mason in evidence, that along in the year 1905, I think it was, he wanted the ditch improvement below him extended to his place, or else that he should not be assessed, implying a concession that, if that improvement were extended to his land or upon his land, then the assessment might be made. I do not know that we should place very great weight upon such concession, but it bears upon his right to question the legality of these improvements; it is a question whether there has not been an acquiescence upon his part in some of these improvements that have been established in years past.

I have not time to refer to the other discussion incidental to these main questions, which I have treated somewhat briefly, perhaps hastily, and it suffices to say that it is the judgment of the court that this important improvement, which, we believe, from all the indications of the evidence, is one demanded by the public welfare and convenience, should not be stayed by any action of ours in disturbing the assessments which have been made upon these landowners. We think that the commissioners have sought to make a just distribution of the cost of the improvement. The setting aside of their first estimate and the adoption of an improvement costing little more than half the first, against which remonstrances had been filed, indicates an intention on their part to deal fairly with the people in this corner of the county. No intimation has been made, indeed, of any intentional injustice or favoritism. It is said, to be sure, that one of the commissioners owned land lying upon, or adjacent to, this improvement, subject to assessment; but, without comment, upon authorities or making citations, it is enough to say that we do not think that a sufficient ground is thereby afforded for interference with the action of the commissioners or disturbance of these assessments. Indeed, after as careful an examination as we have been able to make of the whole iield of inquiry, we have been unable to arrive at the conclusion that plaintiffs’ petition should be sustained.

(7. L. Newcomer, for plaintiffs.

Handy Wolf, for defendants.

Our judgment is that neither Mr. Mason, nor the other persons associated with him and whom he seeks to represent, have any claim to the equitable interposition of the court to set aside the assessments Vhich -have been made upon them, and for this reason the finding of the court will be in favor of the defendants upon the motion which'has been made for a judgment of dismissal of the plaintiffs’ petition.

Parker, J.,

concurring.

Judge Haynes calls my attention to the fact that in the course of his opinion Judge Wildman did not mention the contention respecting the failure of the commissioners to find affirmatively and enter upon their docket that this improvement was conducive to the public health, convenience and welfare. If he mentioned the contention, he failed to mention certain sections of the statutes that we think bear upon that question. Under Sections 4490, 4491, Revised Statutes, we think that an error of that kind may be disregarded or, in effect, cured; that, where an application for injunction, like this, is made to the court, it is not necessarily fatal to the validity of the proceedings. I read a part of it:

<<=* * =» the court in which any such proceedings are begun shall allow parol proof that said improvement is necessary and will be conducive to the public health, convenience, or welfare, and that any steps required by law for any improvement have been substantially complied with, notwithstanding the record required to be kept by any board or officer.”


source: Caselaw Access Project

license: Public Domain

text:
    CERTIFICATES AS TO “ FULLY PAID AND NON-ASSESSABLE STOCK.”
    Circuit Court of Cuyahoga County.
    Joseph R. Nutt v. Minnie A. Wheeler.
    Decided, October 21, 1907.

      Corporations — Liability of President for Deceit — In Certifying that Stock is Fully Paid and Non-Assessable — Does not Arise, When.

    One who purchases stock in an Ohio corporation on the open market for about twenty-five per cent, of its face value, without inquiry as to the assets of the company, or the representations made upon the face of its certificates of stock, can not, upon.'the subsequent insolvency of the company, recover the amount paid for said stock from the president of the company in an action for deceit, upon an alleged misrepresentation made by him when he signed certificates of stock certifying that they were “fully paid and non-assessable,” notwithstanding said president knew that upon the original issue of said stock property greatly over-valued had been received by the company in payment for it.
    Winci-i, J.; Marvin, J., concurs; Henry, J., not sitting.
    Error to the Court of Common Pleas.
   It appears from the record of this case that defendant in error, who was plaintiff below, was a school teacher, who also speculated in stocks dealt in on the stock market in Cleveland, Ohio, and that in September, 1902, through a broker in said city, she bought on the open market thirty-five shares of the capital stock of the Springfield & Xenia Traction Company, for which she paid $28 per share. Her instructions to her broker were contained in the following letter to him:

“Garrettsville, Ohio, September 16th, 1902. “Mr. Carl S. Russell.
Dear Sir: I beg leave to acknowledge your favor of the 15th. Accept my thanks for the execution of the Western Railway commission upon such favorable terms. I also desire to thank you for taking such very good care of my interests in the C., D. & T. deal. I wish you would expend the proceeds from the sale of that stock in the purchase of some good traction stock which your best judgment leads you to believe will be a rapid riser. Iiow is that new Springfield & Xenia road financed? I have faith in any road under the Mandelbaum and Pomeroy syndicate, or in the ultimate success of a company financed by the Everett-Moore combination. I am out of the city, so can not talk over the investment with you, but I assure you my previous transactions lead me to trust implicity in your business sagacity. Yours truly, -
‘ ‘ Minnie A. Wheeler. ’

This stock did not prove a “rapid riser,” but turned out to be a “rapid faller,” the company defaulting in the payment'of interest on its bonds, a receiver being appointed, and a suit being brought in behalf of its creditors in the Common Pleas Court of Clark County, against Miss Wheeler and other stockholders of the company, to enforce their stockholders’ statutory liability.

Thereupon Miss Wheeler brought an action in deceit against Nutt, he being president of the company at the time her stock was transferred to her, and having as such signed the certificate for thirty-five shares issued to her, which on its face he certified to be “fully paid and non-assessable.”

In her petition she sets forth what she claims to be the transaction whereby $500,000 of the stock of the company was originally issued to' said Nutt and his associates, without any consideration whatsoever;, that Nutt signed her certificate as. president of the company, knowing at the time he signed it that the company had never been paid for it; that at the time of the disposal of the stock of -the company, it was insolvent and that Nutt knew of its insolvency.

The petition further alleges that certificates so issued found their way into the market, where Miss Wheeler, relying upon the statement upon their face, that the stock was fully paid and non-assessable, bought thirty-five shares for which she paid $980; that she believed said statement to be true and later discovered that it was untrue and that her stock was worthless.

The prayer of the petition is that she recover from Nutt the money she paid another for her stock, plus the amount which she alleges as her contingent liability in said suit pending in Clark county.

The conceded facts regarding the deal whereby the $500,000 of stock of the company was originally issued, as shown by the record, are as follows:

One Martin and associates having acquired franchises for a traction company in the cities of Springfield and Xenia and made some progress towards acquiring a right of way for a suburban road between said cities, and being unable themselves to finance the proposition, applied to Nutt to help them out. He agreed with them to organize a company with $500,000 stock, cause it to issue $400,000 of bonds and deliver to Maytin and associates $140,000 of said stock and $40,000 of bonds, and sell the balance of the bonds, $360,000, using the proceeds thereof in completing and equipping the proposed road. Martin and associates were to deliver to Nutt or the company so to be organized by him, all their franchises and property,* and also agreed to furnish a complete private right of way between Xenia and Springfield along lines satisfactory to the purchasers.

This agreement was carried out, but Nutt, in turning the property over to the company, which later became known as the Springfield & Xenia Traction Company, induced it to. issue to him therefor $500,000 of stock and $40,000 in bonds. He delivered to Martin and associates $140,000 of this stock and $40,000 of bonds, as he agreed, though this is questioned by one of Martin’s associates who thinks only $30,000 in stock and $30,000 in bonds were so delivered. Whether Martin dealt fairly with his associates, however, is immaterial.

The $360,000 of stock remaining in Nutt’s hands by this transaction he gave as a bonus to the subsequent purchasers of the $360,000 of bonds sold for construction purposes, each purchaser of a $1,000 bond thus receiving ten shares of stock.

It is a part of this bonus stock which subsequently found its way upon the market in Cleveland, and was bought by Miss Wheeler, not from Nutt, but from some third person.

Upon the fact that Nutt paid Martin some $360,000 less for the property than he sold it to the company for, and the opinion of one expert, A. B. Dupont, that at the time it was probably not worth more than $100,000, the point was attempted to be made by the plaintiff below, that the stock issued by the company was never paid for. This expert, however, admitted that if the franchises “were in the hands of somebody who had the power and would build the railroad, he could probably unload the railroad at a great deal more than its physical cost.”

On the other hand, five experts for the defendant, all well-known traction men, testified that the franchises transferred to the company were worth from $500,000 to $750,000.

The trial court submitted the cause to the jury, limiting the plaintiff’s right to recover to the amount she had paid for her stock, with interest, and the jury brought in a verdict for her in that amount.

In this court several errors in the record are complained of, but the most important ones, in our view of the case, are that the verdict is against the weight of the evidence, and that the motion of defendant at the close of plaintiff’s evidence, to direct a verdict for the defendant, should have been granted.

If Mr. Nutt made any misrepresentation to Miss Wheeler, it was made either by the express language on the face of the stock certificate which she bought, or it was implied from the existence in the market of stock certificates signed by Mr. Nutt, or placed on the market directly or indirectly by him.

As the record discloses that Miss Wheeler never saw a stock certificate of the Springfield & Xenia Traction Company until after she had bought her thirty-five shares and had her own certificate issued to her, there was no express representation to her, and as her testimony shows that she had no thought as to the difference between “certificates of stock” and “stock” itself, but was looking for a “rapid riser” as a speculation, there was no implied representation arising from the presence' of certificates of stock in the market.

In other words, bearing in mind that the original issue of this stock was not absolutely void, as in the case of fraudulently issued or over-issued stock, but, at the most, was voidable only, we think that no material representations upon which Miss Wheeler relied as to the value of this stock arose from the mere presence of certificates in the market which, indeed, purported to be fully paid and non-assessable, but which she had never seen, heard of, or, apparently,' thought about. She wanted to get rich quick and more than one broker having told her that Springfield & Xenia was good “stock,” and believing it would be a “rapid riser,” she bought without inquiry as to its assets or the amount of stock it had issued, and paid $28 per share.

The price she paid for the stock is significant, as pointed out by Judge Sharswood in the case of McAleer v. McMurray, 58 Pa. St., 126, 129, and rebuts the remote inference arising from the mere presence of stock certificates on the market, that they had been issued but a short time before her1 purchase upon the payment of par for them.

It is unnecessary to recite Miss Wheeler’s evidence at great length, but is sufficient for us to say that as we weigh it, she failed to show that she parted with her money at the time she bought this stock by reason of her reliance upon the representation which she now says Nutt falsely made to her.

As we view this case, there is another reason why Miss Wheeler can not recover under any view of the evidence.

Miss Wheeler is a transferee of stock, not a creditor of the company. The representation made to her and the class she belongs to, to-wit, stockholders, in law is no misrepresentation, but is true.

Nutt, when as president of the company, he signed stock certificates purporting to be fully paid and non-assessable, stated to the persons to whom he issued said certificates and their transferees, what was clearly true under the facts of this ease.

This court held in the case of Orton v. Edson Reduction Machinery Company, 5 C. C. — N. S., 540, 543 (affirmed without report, 75 O. S., 580), that:

“A corporation having issued its stock as fully paid, in .exchange for property transferred at an agreed valuation, can not thereafter, without the consent of the stockholders, treat his stock as only partially paid and assess him for the difference between the market value of said property and the par value of the stock issued in exchange for it. ”

At the bottom of page 543, we say:

“The authorities, however, agree that:
“The corporation itself, after issuing its stock as paid up stock, and declaring it so to be, can not subsequently repudiate that declaration and agreement and proceed to collect, either from the person receiving the stock, or his transferee, the unpaid part of the par value. It is estopped from so doing. Where, however, actual fraud enters into the transaction, then a corporation is not estopped from having the agreement set aside. The person receiving the stock can then be compelled to return the stock or its market value, and take back that which he gave to the corporation for it. But, the corporation can not-hold him liable for the par value of the stock.” (1 Cook on Corp., Section 38). See also 2 Thompson on Corp., Chapter XXVII, passim.

So we see that this representation, as made to stockholders and transferees, was truthful and it was Nutt’s duty, as president of the company, to make it to them.

As to the right of stockholders, as such, among themselves, if Nutt ever received stock which he never fully paid for, and as to the rights of creditors in such case, we say nothing. We simply hold that Miss Wheeler has misconceived her remedy against Nutt, which must be for the fraud in his original transaction with the company, if any, and not for his subsequently signing and issuing stock certificates.

In this connection it is significant that the pleadings and record disclose that the creditors of the company in the case pending in Clark county have not claimed that there was any fraud in .the original issue of stock, but are suing for an assessment of the stockholders’ statutory li&blity. There the matters here complained of can be fully investigated, while here the fact that the property was over-valued when stock was issued for it, is made to depend upon the opinion of one expert, contradicted, as he is, by five others, equally good. However, we do not desire to be taken as approving the example of high finance here made public.

There are other errors in the record, besides the overruling of the defendant’s motion to direct a verdict in his favor, which we shall briefly mention.

We think it was error to admit in evidence the Kushman stock certificates, as it was not claimed that the plaintiff had ever seen them before she purchased her stock.

McGraw c& Messiah, for plaintiff in error.

Arnold Green and Thomas Gibbons, for defendant in error.

It was error to refuse to submit the defendant’s eleventh and twelfth interrogatories to the jury.

By the jury’s answer to the defendant’s third interrogatory it showed that it did not understand the case submitted to it. The interrogatory and answer are as follows:

“What misrepresentation, if any, was made to the plaintiff by the defendant, with knowledge on the defendant’s part of its falsity and with intent to deceive and on which she'relied in making her purchase ? ” _
Answer: “The fact of J. R. Nutt being connected with the Springfield & Xenia Traction Company as president.”

This “fact” was not a misrepresentation, nor was it the one charged in the petition.

The answer is not responsive to the question, and, of course, is no justification for the jury’s verdict. While we would not say that this special finding is so contrary to the general verdict as to warrant a judgment on it for the defendant, it nevertheless shows plainly that the jury had no intelligent conception of the case before it, and would be sufficient reason for a new trial, were we disposed to send the case back for further proceedings.

For the errors pointed out the judgment is reversed, and because, upon the conceded facts as to the original issue of stock, we think the plaintiff below has misconceived her remedy, judgment is rendered for- the plaintiff in error.


text:
    WHEN JUDGMENT MAY BE SET ASIDE AT A SUBSEQUENT • TERM.
    Circuit Court of Wood County.
    Frank Frazier et al v. William Walker.
    Decided, April 27, 1907.

      Judgments and Decrees — Action upon, at Subsequent Term — Motion for, must be Filed, When — Appeal—Dismissal of, for Default for Petition — Sections B5S9 and 5354 to 5357 — Error—Pleading—Continuance — Notice.
    1. A motion to set aside a default judgment and revive the cause for further consideration may be heard at a term subsequent to that of the entry of the judgment, only when the motion has been filed during the term of the entry and duly continued.
    2. An appellate court has authority, under Section 6589, to dismiss an action and adjudge the costs against the appellant on, its own motion, when the appellant is the plaintiff and is in default for a petition.
    Parker, J.; ITaynes, J., and Wildman, J., concur.
    Error to Wood Common Pleas Court.
   William Walker sued Frank Frazier and Richard Priest before a justice of the peace on November 8, 1905, in an action for money. The verdict of the jury upon the trial was against plaintiff and judgment was entered on this verdict on December 31, 1905; he gave notice of appeal and perfected his appeal to the court of comomn pleas by giving bond and filing his transcript in that court on January 15, 1906. The transcript was due January 15, 1906; it was in fact filed upon January 4, 1906, so that it was filed in due time. The petition was due on the third Saturday after January 15, which would be upon February 3. 1906. No petition was filed at that time or during that term, which was the January term. No petition was filed at the following term, which was the April term, and on May 7, 3906, the action was dismissed.

The journal entry dismissing the case reads as follows:

“This day this cause came on for trial, and it appearing to the court that the plaintiff has failed and neglected to file his petition herein and has neglected to prosecute said cause to final judgment, and that the time has long since passed for the filing of said petition, it is hereby ordered and adjudged that the said cause be dismissed and that plaintiff pay the costs herein taxed at $-, and execution is hereby awarded.”

It does not appear that any action was taken by the defendant, Frazier, to bring about the dismissal of this cause; so far as appears the court proceeded upon its own motion, upon the matter being brought in some way to its attention.

It is suggested that there was some irregularity in this proceeding, because it should have been based upon a motion, and Walker should have received notice of the motion in due time so as to be present and resist it. Section 6589, Revised Statutes, provides:

“If the plaintiff, in the action before the justice, shall appeal from any judgment rendered against such plaintiff, and after having filed his transcript and caused such an appeal to be docketed, according to the provisions of this chapter, shall fail to file a petition, or otherwise neglect to prosecute the same to final judgment, so that such plaintiff shall become non-suit, it shall be the duty of the court to render judgment against such appellant, for the amount of the judgment rendered against him by the justice of the peace, together with interest accrued thereon, and for costs of suit, and to award execution therefor, as in other cases.”

We think that necessarily includes authority, where there is no judgment to be rendered against the plaintiff except a judgment for costs, to dismiss the action for want of prosecution and render judgment against the appellant for costs, and that this may be done by the court upon its own motion because of the non-prosecution of the action. So we hold that there was no irregularity in that proceeding.

At the April term, to-wit, June 11, a motion was filed by Walker to have this judgment of dismissal set aside; the ground of the motion was that he was prevented by an unfortunate casualty from looking after his case — that he had received an injury about the time his petition was due and' that he has been disabled and confined.to his house ever since so that he could not look after his case. The motion was not verified. It does not appear that any notice of the filing of the motion was served upon anybody, though it is stated in argument, and we will assume that it is correct, that counsel for Frazier were advised of the motion and were present to resist it at the April term. There is nothing in the record however disclosing whether that is so, but that we regard as immaterial. No action was taken upon this motion at the April term. The next thing that appears in the record is an entry under date of November 16, 1906, which was at the September term, as follows:

“This day this cause came on to be heard upon plaintiff’s motion filed at the preceding term ofrthis court to set aside the judgment by default rendered at said term on account of failure of plaintiff to file his petition herein and for leave to plaintiff to file a petition in said cause, and, on due consideration thereof, and of the affidavits and all the proceedings in said cause and being fully advised in the premises, the court does grant said mo- • tion. It is, therefore, ordered and adjudged that the judgment by default heretofore rendered in this cause, be, and the same hereby is, set aside and held for naught, and the plaintiff is hereby granted leave to file his petition herein by November 24, 1906; to. all of which the defendant excepted. ’ ’

Now Frazier prosecutes error in this court to reverse this action of the court of common, pleas in setting aside the'judgment of dismissal and reinstating the cause and giving the plaintiff leave to file his petition.

We are of the opinion that the court of common pleas erred. That it had no authority in the premises to make this order. We do not quite agree upon all points — that is to say, we do not all arrive at this conclusion by the same process of reasoning, but we are all agreed in the conclusion, which is after all the material thing. The question has been debated before us and by us whether this motion, filed during’the term at which the judgment was dismissed, could keep alive the matter with respect to which it had invoked the action of the court — whether thereby the matter could be kept pending in court until another term so that the court might at such subsequent term hear and act upon the motion. About that we have differed somewhat; some of us being of the opinion that by a specific or a general order of continuance it might have been kept pending so that it could have been lawfully acted upon at a subsequent term, but those of us entertaining that view also entertain the view that it was not so kept pending, because- there was no order of continuance either special or general, and we are of the opinion that a matter of that kind, a proceeding to vacate a final judgment which has finally disposed of a case, differs essentially from an undetermined cause, which will remain pending until it is disposed of; that this proceeding can not be kept alive from term to term without an order of continuance of some description, either general or special. One member of the court is inclined to the opinion that if it could be acted upon at all at a subsequent term as a motion, it might be continued by operation of law or might be regarded as still pending until disposed of. Those of us entertaining the opinion that it could have been continued are of the opinion that if continued it might have been acted upon at a subsequent term as a motion, while the member who is of the opinion that it might have been continued by operation of law is of the further opinion that even if that were done, it could not as a matter of law be acted upon at a subsequent term by reason of the provisions of Sections 5354 to 5357, Revised Statutes, and especially Section 5358. These sections are in a chapter upon the subject ói new trial and other relief after a term at which the judgment is entered, and Par. 7 of Section 5354, Revised Statutes, has reference to the rule 'for relief from the consequence of unavoidable casualty or misfortune, preventing a party from prosecuting or defending an action, and Section 5358, Revised Statutes, provides that proceedings upon that account must be by petition, duly verified, whereas in this case there was no petition and no verification of the application.

I have said enough perhaps to indicate the conclusion of the court, i. e., that if the application could have been heard and granted upon a motion at a subsequent term it must be by reason of tbe motion being filed during the term and duly continued, and a majority of the court are of the opinion that it' might have been done in that way. And we are of the opinion that if it could not be acted upon at the subsequent term as a motion — if the failure to continue amounted to a discontinuance of the motion, no petition having been filed, then it follows that the action of the court was erroneous; and we- all agree that upon one or the other of these grounds, the action of the court was erroneous, and therefore it is reversed, with costs.

Baldwin & Harrington, for plaintiff in error. _

Eugene Rheinfrank, for defendant in error.


author: Per Curiam.

text:
    CONSPIRACY TO INJURE BY LIBEL OR SLANDER.
    Circuit Court of Erie County.
    Ed. H. Zurhorst v. Katharine Kroll and Charles P. Caldwell.
    Decided, September, 1907.

      Conspiracy — Libel or Slander — Actions for, Distinguished — Gravamen of, Where Combined — Pleading and Evidence Required — Resulting Injury — Where Loss of an Office is Alleged — Damages—Application of the Statute of Limitations — Sections 498$ and 4983.

    1. An action for conspiracy to injure one by libel or slander and an action for libel or slander are not so identical in character as to bring them both into one category under the statute of limitations; and where the conspiracy forms the gist of the action and the libel or slander is merely incidental to the accomplishment of that purpose, the action is not barred by the statute applying to libel or slander.
    2. In an action for conspiracy the damage sustained constitutes the gravamen, and proof of special damage is required and can not be implied from the mere effort to injure the plaintiff by a conspiracy to that end, although the efforts in that behalf may consist of declarations which would raise such an implication in an action for libel or slander.
    3. Valiere the petition charges an unlawful conspiracy to injure the plaintiff'in his reputation and deprive him of a public ofEqe by uttering and publishing slanderous words and a certain libelous affidavit, there is an entire failure to show an accomplishment of the purpose alleged, where 'the testimony merely establishes the means used for the carrying out of the conspiracy, and fails entirely to show any resulting injury; and it is not error in such a case to instruct the jury to return a verdict for the defendants.
   Per Curiam.

Haynes, J., Parker, J., and Wildman, J.

The action, was instituted in the common pleas court by the plaintiff in error against defendants in error, charging them in much detail with unlawfully conspiring to injure plaintiff in his reputation and deprive him of the position of United States Collector of Customs at Sandusky; and averring that in furtherance of said conspiracy they falsely wrote and published a certain libelous affidavit concerning him and spoke in the hearing of divers persons certain slanderous words. It is claimed that the wrongful purpose of the conspirators was accomplished, that by reason of their acts said official position was lost to him, and that he suffered other loss in the way of injury to his good name, pain and humiliation, all to his damage in the sum of $30,000.

The action failed below, the court, at the close of the plaintiff’s evidence, directing a verdict for defendants, and judgment was given accordingly. To reverse this judgment the proceeding is before us.

The petition does not disclose when the acts of the defendants in the carrying out of their alleged unlawful purpose terminated; but the case as developed by the evidence failed to show the writing or speaking of defamatory words within the year prior to the commencement of the suit.

The action of the trial court in directing a verdict for the defendants was invoked by a motion based upon the following grounds:

1. Absence-of evidence to sustain the charge of conspiracy;

2. Bar of the statute of limitations; and,

3. Absence of proof of damages resulting from the acts of defendants, either jointly or severally.

No opinion of the trial judge in support of his ruling is furnished us, but we are informed by counsel for plaintiff in error that he based his action on, the view that the case was one for slander and libel, and that the action was barred by the statute of limitations of this state, limiting the period for bringing such actions to one year (R. S. 4983). Counsel for defendants does not quite concede that this was the sole basis of the decision. • But whatever the views of the trial judge, his decision should not be disturbed if warranted by the character of the action and the evidence.

There was, in our judgment, evidence tending to sustain plaintiff’s averment of a combination or conspiracy, and the first ground of the defendants’ motion was not well taken. The ruling of the court must be supported, if at all, by one or both of the other grounds.

Cases of this general character are not infrequent in the adjudications of this country and England, and the right of action for conspiracy to deprive one of an office or employment or to injure his business, not only by defamation of his character but by other undue or -unlawful means, is clearly established. The action will not lie, however, for the conspiracy alone. It must be consummated by some act or acts resulting in injury to the •plaintiff. But the courts do not hold that the defamation of character, where that is the means employed to accomplish the wrongful purpose of the conspiracy, is anything more than such means. It is no more the gist of the action than are malicious acts of any kind to effect the unlawful purpose of the conspirators. It is distinguished from a libel or slander suit in that it is unnecessary to plead the words of the verbal or written statements made to the injury of the plaintiff or to allege declarations that would sustain .an action for libel or slander. It is further distinguishable in this, that a conspirator may be held liable for either the written or spoken words or the conduct of his confederates; but one person, not conspiring with another, can not be held liable for the libels or slanders or other conduct of such other. As to verbal slander, it has been held that there can be no joinder of defendants, because, to quote one of the pioneer judges of our own Supreme Court, “verbal slander can not be jointly committed by two or more.” Orr v. Bank, 1 Ohio, 46.

The action for conspiracy, then, and the action for libel or slander, are not so identical in character as to bring both into one category under the statute of limitations. Section 4983 of our statutes limits the bringing of actions for libel or slander to one year from the utterance or publication of the defamatory words; but no section of the statute of limitations so limits the bringing of actions for conspiracy, although the means adopted to accomplish the purpose of the conspiracy be libel or slander. In the one case, the libel or slander is the gist of the action; in the other it is a mere incident to the accomplishment of the purpose for which the conspiracy was formed.

This distinction is clearly drawn by the Supreme Court of Texas, in Brown et al v. Amer. Freehold Land Mort. Co. of London, 80 S. W., 985, the case especially relied on by plaintiff in error, and upon the authority of which it is said in the brief of his counsel the petition in this case was drawn. ’ It is recognized with equal clearness and supported by exhaustive reasoning in the able case of Van Horn v. Van Horn, 56 N. J. L., 318 (28 Atl., 669).

To the extent that the petition before us involves and charges a libel and slander, setting out in haec verba the alleged defamatory written and oral statements, the statutory limitation as to actions for slander and libel would, doubtless, apply, upon failure to prove the alleged conspiracy and an effort to base a judgment on the slanders and libel alone. In view of this double aspect of the petition, the statute of limitations was properly invoked; but if the conspiracy and the■ accomplishment of its wrongful purpose, to the plaintiff’s injury, were shown, the one year limitation was not available to bar the action.

It is not contended by defendants in error that sufficient time has passed since the accruing of the right to sue, to effect a bar under any other section of the statute. It is probable that Section 4982 of the statutes is the one applicable to this class of actions as one for “an injury to the rights of the plaintiff not arising on contract and not hereinafter enumerated.”.

II. C. Delian, for plaintiff in error.

II. L. Peake, for defendants in error.

It is our judgment, however, that the evidence offered to support the claims of the petition does not tend to establish the accomplishment of the purpose of the alleged conspiracy. It tends to show the use of means to reach the desired end, but it utterly fails to show any resulting injury. True, the plaintiff asserts in general words that he lost his office thereby, but this is barely more than an argumentative statement, a claimed con-, elusion rather than the assertion of a fact, and has no valid force when coupled with his testimony that he filed his resignation with the Secretary of the Treasury at Washington, asking for its immediate acceptance, and not claiming that he had been requested by any superior to resign. It is said that the term of his appointment had expired, and that he was not re-appointed, lie was, however, continuing to hold the office and no successor had been appointed. When we add that the record fails to disclose any previous assurance by the appointing power that his tenure would be extended by re-appointment, or any expression of loss of confidence in him as an official or otherwise, it becomes manifest that his action, so far as proof of loss of office is concerned, fails. There is.no evidence that he was engaged in any other occupation which suffered impairment, or that he received substantial injury in any other respect.

The courts have not held, so far as we are apprised, that damage will be implied from the mere effort to injure one under a conspiracy to that end, although such effort may consist of declarations which would raise such implication in a suit for libel or slander. Proof of special damage seems to be required, and the damage, not the conspiracy, is said to be the gravamen of the action.

We think that the court did not err in instructing the jury to find for the defendants, and we find no prejudicial errors in any other respect.


text:
    OVERLAPPING OF LOCAL OPTION DISTRICTS.
    Circuit Court of Scioto County.
    John Kilcoyne v. Wells A. Hutchins, Mayor of the Municipality of Portsmouth, Ohio.
    Decided, November 8, 1907.

      Elections — Under the Jones Local Option Law — Overlapping of Districts — Motive of Signers of Petitions can not he Inquired into— Policy of the State Tending toward a Stricter Regulation of the Liquor Traffic — Construction of the Phrase “Residence Districts.”

    On May 21, 1907, a majority of the electors of a residence district in the city of Portsmouth signed a petition under the act, 98 O. L., 68, in favor of prohibiting the sale of intoxicating liquors in that district. This petition was filed with a judge, found sufficient, and the residence district duly established prior to October 24, 1907. On the latter-date another petition was filed with the judge, also in favor of prohibiting the sale in the residence district described in it. The residence district described in the second petition overlapped the first and was identical with it, except that the second had an additional block attached containing forty-five electors.

      Held: Residence districts established under said act are territorial units; the act does not authorize the overlapping of a valid prior residence district by a later petition.
    Jones, J.; Ciierrinston, J., and Walters, J., concur.
   This case comes to this court on error. It appears from the record of this case that on May 21, 1907, a petition was filed with the judge of the court of common pleas of this county, under what is known as the Jones law, being an act in 98 Ohio Laws, page 68, signed by a majority of the electors of a certain residence district, in favor of prohibiting the sale of intoxicating liquors as a beverage in that district.

The, judge of the court of common pleas held that petition sufficient, and thereupon a certificate was filed with the clerk of the municipal corporation. The finding by the judge was made on June 24th, 1907, and under that finding the petition became effective. • ...

Later, on October 24th, 1907, another petition was filed with the same judge, signed by a majority of the electors of a residence district, which residence district was constituted largely from the territory that was incorporated in the first petition, with an additional block attached to it, in which there were forty-five electors. The latter petition was presented to the common pleas judge, under Section 1 of this act aforesaid, for the purpose of having him pass upon the sufficiency of that petition, and for the purpose of declaring the second residence district dry.

It is .an undisputed fact in the ease that the territory in the second petition overlaps that contained in the first. The only additional territory in the second is this block that I have spoken of in which there was an additional number of electors to the number of about forty-five.

A motion was made to dismiss this petition. It came on for hearing upon the motion and upon the agreed statement of facts. Arid the case is presented to us to determine the construction of the Jones law, and to determine whether or not the common pleas judge erred in overruling the motion apd 'sustaining the second petition.

I will say that, ordinarily, we would not pass upon a question of such importance as this immediately after the close of the argument, as we do in this case, were it not for the fact that we are fully satisfied with the position that we are now taking.

The first question presented is this:

It appears that some of the petitioners who had the first district established by the petition of May 21st, 1907, were acting in behalf of the saloon interests, and that it was partly through their efforts that the first district was established; and their motive is attacked in this case. We do not think that the motive of the signers of this first petition can be inquired into in. this court. But 1 will say upon that question, were we to .pass upon it — were it necessary to pass upon it — we would probably hold that, when the first petition was filed, May 21st, 1907, the motive could not be considered in the case under the authorities as we view it.

Under Section 1 of the act the electors of any residence district have the right to sign the petition. Therefore under that act a statutory right was given them. And the case of The Cincinnati Volksblatt Company v. Hoffmeister, 62 Ohio State, page 198, will probably apply here, where Judge Spear, citing a number of authorities, says:

“Ordinarily the motive, or purpose, oil the party who is in the exercise of, or is about to exercise, a clear legal right, is unimportant. * * * We are of the opinion that where a suitor demands the enforcement of a clear right given him by the law, whether the remedy be legal or equitable, his motive for such action is not a proper subject for judicial investigation. ’ ’

It appears from the opinion of Judge Spear that since the qualified electors of any residence district have a right to sign a petition, whether it be one to create a dry district or a wet district, that their motive can not be called in question. Of course in cases of this hind the motive of one section of the residence district is for the purpose of creating a dry territory, and of the other section of the same district probably will be to do all it can to create a wet territory. No more, do we think, can the motives of a signer of these petitions be attacked because he was interesting himself on the wet side of the proposition than could the motive of one who is interesting himself upon the dry side of a proposition. But, however that may be, it can not be questioned'in this ease, because that would be drawing the question into the case collaterally; if it could have been raised at all, it should have been done when that first petition was filed; but. here we have the finding of the judge passing upon that petition — upon every incident connected with it — and his adjudication that the petition was sufficient.

Coming down to the real question at issue it is this:

That when dry territory has been created under Section'l of the act, by a majority of the qualified electors of the residence district who sign a petition, present it to the common pleas judge, and a residence district established, whether or not a second petition could he filed which overlaps the first district.

In the construction of statutes, where statutes are ambiguous, the rule is without question that the purpose of the court is to ascertain, if it possibly can, what the legislative intent was. If there is no ambiguity, the court can only follow the statute as it finds it. ■ We agree also to the proposition that the policy of legislation for years past has been tending towards the stricter regulation of the liquor traffic. And the trend of judicial decisions for a number of years has been to the same effect. The power of the Legislature is supreme when it comes to legislating upon the question of the sale of intoxicating liquors. It comes, as we have heretofore held in one of the counties of this circuit, within what we term the police power of the state.

We have no doubt but that the Legislature, if it felt proper to do so, could have created by positive enactment a law which would provide for the overlapping of territory in a second petition. We think it could have provided, and it would probably be an answer to the argument of counsel in this case, that if it had so provided for county local option, that the county would in that case be a unit, and the vqte taken latter on county local option would control the smaller units, such as towns and townships. But we do think that the authorities cited by counsel in support of that proposition depend largely upon the fact that the Legislature of Texas and Kentucky, and of other states, has given by exact terms the power for the larger unit to control the smaller.

Now in construing this act, counsel must concede that we must construe its sections so as to make them all harmonize, if possible. The three sections of the act that are important in this case are the first, second and sixth. I will read-briefly from the three sections.

Section 1 provides, in substance, that whenever a majority of the qualified electors of any district of any municipal corporation sign a petition in favor of prohibiting the sale of intoxicating liquors as a beverage in such residence district, and file the petition with the judge of the court of common pleas of the county, that the judge shall examine the petition at a public hearing, and cause a copy of his decision to bp filed with the clerk of the municipal corporation.. Then provided, that if it shows that a majority of the voters of such residence district are in favor of prohibiting the sale of intoxicating liquors as a bevérage, that it shall be prima facie evidence that the selling, etc., shall be unlawful.

Section 2 provides, in substance, that whenever a majority of the qualified electors of any residence district in which the sale has been prohibited under the provisions of Section 1 of this act, shall sign a petition against prohibiting the sale of intoxicating liquors in the same residence district, and file a petition with the judge of the court of common pleas, the judge shall decide upon the sufficiency of that petition and cause a copy of his decision to be filed with the clerk of the municipal corporation. And that shall be taken as prima facie evidence that the sale of intoxicating liquors in the residence district is not then and there prohibited.

Then the section provides that the petition provided for in this section shall not be filed until after two years or more shall have elapsed after the filing of the petition provided for in Section 1 of the act.

Section 6 of the act provides, in substance, that the territory enclosed by the boundary of any residence district within which the sale of intoxicating liquors has been prohibited, as provided for in Section 1 of this act, shall be controlled by the result of such action, and the law shall remain1 in full force and effect in such residence district for two years and thereafter until another petition is presented under the provisions of Section 2 of this act in said residence district. After a petition against prohibiting the sale of intoxicating liquors has been presented, and held sufficient by the judge, another petition can not be presented for two years thereafter.

It is claimed here that under the provisions of Section 1 of this act, which provides that whenever a majority of the qualified electors of “any residence” district shall file a petition in the first instance, that they have a right under the purview and the construction of that section to create as many districts as they may please, any one of which may overlap prior districts. And the force of the argument is spent upon the words found in the first section, that electors of “any residence” district may-take such action. And they say the court must construe the various sections of this act so as to give effect to that language in Section 1. But with due deference to the very able and certainly very ingenious argument of counsel who represent that view of the case, we are unable to come to that conclusion. And I will give our reason, very briefly, for it.

As I have stated, all the sections of this act should be harmonized, if possible, and none of them should be in effect nullified or repealed by action of the court. The judiciary can not legislate. Nor can it nullify legislation. And we think that were we to give the effect to the act that counsel claim, it would be in effect a nullification of certain provisions found in Sections 2 and 6.

The Legislature has provided by Section 1 of the act that the qualified electors of any certain district may carve out a district, present their petition, and that district shall remain dry for the space of two years or more. In two years thereafter, or at any time after two years, the same electors or a majority of them may file a petition, if they see fit, seeking to create a wet territory out of that dry territory. Now there is no room, we think, for the construction of these various sections. And we think that the Legislature has established these districts as units; and that when the "district has been established it remains a district; and that action on various petitions that may be filed thereafter must be taken in connection with that fact; that if one district has been established, and a court has passed upon it, certain rights have accrued to the electors of that district.

Take the case in question. Here was a residence district, created in May, 1907, which, by the action of the judge of the court of common pleas, was made dry. Under a later petition, dated October 24th, 1907, various electors of this dry district aforesaid, together with forty-five others, in a block of territory attached to it, have filed another petition asking that this overlapping district be also constituted dry territory. Can that be done? What would the effect be? Unquestionably, unde]’ Section 2 of this act, when a district has been created by the finding of the court as dry territory, the qualified electors of that district in two years time have the right to change the character of that district by petition. The electors residing in the district established by the petition of May 21st, 1907, on May 21st, 1909, have a right to again petition that the sale of intoxicating liquors shall not be prohibited. But suppose that the judge of the court of common pleas should have found the second petition also sufficient and valid (which overlaps the territory in the first), what would be the effect?

Assume, for instance, this proposition: That the electors residing in the first territory would be perfectly satsified to rest under the rights acquired by them under the first petition. They would not only rest satisfied for a period of two years, but for a period of three years, or indefinitely. Now with that assumption, assume now that the qualified electors of the second district in two years' after October, 1907, or in October, 1909, would again petition for the purpose of establishing a wet territory; that the judge would thereupon find that petition sufficient. What would be the effect of it? That territory or part of it would necessarily be wet. What part of it would be wet? Could the first residence district be wet? Unquestionably, no. Because its electors have acquired rights under these various sections which accrue to them as residents of the first district.

The contention further, as I understand it, however is that all the territory in the second district would not be wet after October, 1909, but the block that was attached to it only would be wet under a petition of that kind. And what would be the result? The result would be that in the residence district, created by the second petition, part of that residence district would inevitable have^ to be dry and part wet. And the part wet, in the case at bar, would have but forty-five qualified electors. I think counsel understand me when I take the proposition as counsel claim it. And I will state it again, although I may state it possibly more at length than I shoxild in my judicial opinion, which is this:

If the qualified electors of the first district established by the petition of May 21st, 1907, were content to rest upon their rights acquired under that section for a period of two, or three, or four years, and no petition should be again filed for that district, but if under the second petition filed on October 24th, 1907, that district with an additional block attached, a majority of the electors of the second district in October, 1909, should again file their petition in the interest of wet territory, and such third petition found sufficient by the judge, the effect would be to do either one of two things. Either to make the entire second district wet, which would be in contravention of Section 2 of this act, under which the electors of the first district would have a right in their own limits after two years or more to petition ; or it would create in the second territory or district a state of affairs as folows: it would create part of a district wet (which would be the block in question, containing forty-five electors) and the balance of that entire district would have to be dry. The result would be, we would have a wet district containing forty-five electors, when the statute required that every district— residence district — tinder the provisions of this act must have at least three hundred.

Secondly. If you can overlap territorj'- by a second petition, you can do it by a third, you can do it by a fourth, you can do it ad inftniium; and if these various dry districts are overlapped, and remain in stalu quo for a period of two years or more, respectively, and contests came on from the other or wet side of the issue, it would do this — we would have this condition of affairs — that there would be no finality with reference to any residence district in any municipal corporation, because after two years time if there had been various overlappings before that time, the wets could come in and file petitions time after time, or according to the number of petitions that have been filed for the drys, and the result would be contests in the same residence district by one side or the other. This, of course, may be an extreme assumption, but it could be done, and when we take into consideration the motives that underlie the action of parties where this issue is in question, why-it might be done frequently. When the qualified electors.of the first district signed — the majority of them signed the first petition in this case — we think that they acquired a vested right which could not be interfered with except by legislative authority. Counsel upon both sides will probably agree to that proposition, but they will disagree as to the next proposition, whether or not that right has been interfered with.. The right which they have acquired is that the electors of that district should have that district dry for a period of two years and more. Now, speaking for the full court, this right is interfered with should we follow the construction asked by counsel in support of the second petition. I say, it might be interfered with. For instance, if, under the second petition or under a third petition overlapping territories that were incorporated in the first petition, which are entitled to remain dry for a period respectively of two years, later petitions from the wets came in to create or establish such as wet territory, we would have additional territory overlapping the first in which electors had rights acquired under the first petition and in its exact territorial limits. In other words, it is not impossible to assume that in this class of cases after two years of time have passed, that the electors of such first district may sign wet petitions, thus establishing wet or dry districts as they see fit in their own residence district.

Now when we construe (and we think it really needs no construction), but were we asked to construe the words “in residence district” in Section 1 of this act, we think that that means a district that has been established by petition as a unit. And that when the said district is afterwards referred to in the various parts of this act as the “same district,” or as the “said district, ’ ’ it refers to that unit as established by such a petition. We think any other holding would in effect be a judicial nullification of Sections 2 and 6 of this act. What else could Section 6 mean than a nullification were we to hold otherwise? That section provides that the territory enclosed by the boundary of any residence district, in which the sale of intoxicating liquors has been prohibited as provided by Section 1 of this act, shall be controlled by the result of such action, and the law shall remain in full force and effect in said residence district for two years.

Theodore K. Funk, Nathan Gumble and Oscar W. Newman, for plaintiff in error.

Wayne B. Wheeler, Harry Ball and W. B. Richardson, for defendant in error.

If a petition is filed in the second district it surely can not affect the first district under the provisions of Section 6. And if it could not affect the provisions of the first district under Section 6 it would mean nothing more or less than what I have said, it might have the effect of creating a block of wet territory out of the district in question, leaving only the balance of that residence district dry — leaving a residence district partly dry and partly wet..

Counsel have cited but very few authorities in this case bearing upon the question here, except those that have been cited for the second petition, to which I have alluded. They are correct in principle and were they applicable to the case here we would be inclined of course to follow them. But we think undoubtedly that the position that we have taken in this case is the only construction that can be harmoniously given to the various sections of the Jones residence local option law, and uphold the entire law. We have no doubt. The result will be that the action of the lower court, or the judge rather, will be reversed. The petition will be dismissed.