author: Dunlap, P. J.

text:
    VENUE IN ACTIONS ON FIRE INSURANCE POLICIES.
    Bond v. Ohio Farmers’ Insurance Co.
    Court of Appeals for Lorain County.
    Decided, October 6, 1919.

      Fire Insurance — County in ’Which Action May he-Filed Against Com- . pany Not Limited to County in Which Action Arose.

    The provision of Section 11272, G. C., that “if such corporation is an insurance company, the action may be brought in the county wherein the cause of action or some part thereof arose,” does not limit the venue of such action to a county in which the cause of of action or some part thereof arose, and such companies may be sued as other corporations in any other county which comes within the general provisions of said section.

      Glitsch (& Stack, for plaintiffs in error.

      Frank Taggart and Stroup & Fauver, for defendant in error.
    Heard on error.
   Dunlap, P. J.

Error is prosecuted in this cause from the action of the court of common pleas of Lorain .county, which sustained a demurrer to the petition of the plaintiff, the ground of the demurrer being that the court had no jurisdiction of the person of the defendant or of the subject matter.

It was alleged in the petition, that the defendant issued a policy of insurance to the plaintiff, Lucy F. Bond, thereby insuring her against loss or damage by fire, covering certain property owned by her in Mercer county, Ohio, that the premises were destroyed, and that by reason thereof the defendant was indebted to the plaintiff to the amount set forth in the petition.

As the property was located in Mercer county, and as this action was brought in Lorain county, it was claimed by the defendant, in support of the demurrer, that the court was without jurisdiction, as we have before stated. This contention was made under the statute, See. 11272, G. C. The question arises as to the proper interpretation of this statute, and whether or not service of summons made on an agent of the defendant in Lorain county required the defendant to answer in this action in said county.

To sustain this judgment, learned counsel for the defendant in error are of necessity driven to the claim aiid contention that the venue for a suit against an insurance company, under the legislation of Ohio, is limited to the county “where the cause of action or some part of it arose.” It is claimed that unless the cause of action arose in such county the insurance company can not be sued in the county in which it is situated, or has or had its principal office, or has an office or agent, or in which a summons may be served upon the president, chairman or president of the board of directors or trustees, or other chief officer, even though Sec. 11272 allows suit to be brought against corporations in general in any county where one of those conditions prevails; that the necessary, prime'and sole requisite is that the venue must be in the county where the cause of action or some part of it arose. This contention is based solely upon certain permissive words in the statute, which are as follows:

“If such corporation is an insurance company, the action may be brought in the county wherein the cause of action or some part thereof arose.”

In our opinion, it is sufficient answer to this contention to point out the fact that if it were not for these permissive words in this section of the statute an Ohio insurance company could not be sued in the county where the cause of action or some part thereof arose, unless one of the situations presented by the preceding clauses of the section in question existed. That is to say, unless the corporation had in such county its principal office, or place of business, or had an office or agent, or unless the county was one in which a summons might be served upon the president, chairman or president of the board of directors or trustees, or other chief officer; and yet it is most apparent that it is desirable that such insurance company could be sued in the county where the cause of action or some part thereof arose, regardless of the co-existence of any one of these other conditions.

It is not necessary to give reasons why such a situation would be deemed desirable on the part of the Legislature. We will, however, mention the fact that the necessary witnesses in such a lawsuit would naturally be residents of such county. So we think it cpiite plain that the Legislature, realizing that even with all the generous provisions made for the securing of service upon insurance companies it had omitted to provide for a situation enabling suit to be brought in the county where the cause of action or part thereof arose, regardless of the co-existence of one of the other conditions enumerated, saw fit to remedy what it regarded as an obvious defect in the statute and added thereto diese permissive words.

For us to now hold that this added provision limits the venue to the county where the cause of action arose, when there appears such excellent reason for regarding it only as furnishing an additional forum necessary for the speedy and convenient administration of justice, would, as we view it, be doing violence to the plain provisions of this section. There is no statutory rule of construction of which we are aware requiring ns to wrench out of this statute the word “may” and substitute for it the word “must,” and, indeed, we think we are positively prohibited from doing so by the careful and discriminating use of the words “must” and “may” in the different sections of the code relating to the venue of actions.

We hold that the venue of this suit is properly laid in Lorain county, and this judgment is reversed and remanded with instructions to overrule the demurrer to the petition.

Judgment reversed, and cause remanded.

Vickery and Washburn, JJ., concur.


source: Caselaw Access Project

author: Metcalfe, J.

license: Public Domain

text:
    ACTS FORBIDDEN BY THE CONSTITUTION BUT AS TO WHICH THE GENERAL ASSEMBLY HAS NOT ACTED.
    Court of Appeals for Jefferson County
    Abe Hoffrichter v. The State of Ohio.
    Decided, May 27, 1920.

      Mayor — Improper Statements by, not Prejudicial to a Defendant, When • — One Accused of Keeping a Place Where Intoxicating Liquors are Sold not Entitled to a Jury — Effect of a Constitutional Declaration Mahing an Act Unlawful.

    1. Improper statements made by a mayor regarding the course he would pursue with persons brought before him charged with offenses will not be regarded as prejudicial in a case where on the undisputed evidence it was the duty of the mayor to convict.
    2. In a prosecution under Section 13195, General Code, the defendant is not entitled to a trial by jury. Inwood v. State 42 O. S., 186, followed.
    3. Section 9, Article 15, Constitution of Ohio in effect May 26th, 1919, forbids the sale of intoxicating liquors as a beverage. The sale of such liquors after that date was in violation of law, without regard to the fact whether the General Assembly had enacted legislation to enforce such provisions with penaltties or not. It is not the penalty which makes the sale unlawful, but the fact that it is prohibited. Hence, keeping a place where intoxicating liquors were sold as a beverage after May 29th, 1919, is punishable under the provisions of Section 13195, General Code.

      Jay Paisley, for plaintiff in error.

      Roy R. Carpenter and E. B. McMaster, for defendant in error.
   Metcalfe, J.

The plaintiff in error was arrested upon a complaint made before the mayor of New Alexandria, charging him with keeping a place where intoxicating liquors were unlawfully sold in violation of law, and upon trial before the mayor was convicted.

The plaintiff urges the following errors. First, that the mayor was so prejudiced he could not give the plaintiff a fair trial. Second, that the mayor had no jurisdiction. Third, that the plaintiff had the right of a trial by jury, and fourth, that there was no law in force making the sale of liquors unlawful within the state of Ohio at the time the alleged offense was committed, and consequently there could be no prosecution for keeping a place where liquors are sold contrary to law.

As to the first proposition, an affidavit was filed by the plaintiff in which, after stating the circumtsanees of his arrest, he avers that the mayor had stated in court at some time, not at the time he was upon trial, that persons who were brought before him and who pleaded “Guilty” would be fined $300, and that those who stood trial wtould be fined $500; thus, giving notice to those who were brought before him charged with a crime they would be convicted in any event, and if they stood trial that they would receive a much more severe punishment than if they pleaded “Guilty.” Of course, tais statement, if made, was exceedingly improper, and if there was anything in the record to show that that attitude of the mayor was carried into this case, it would reverse the case undoubtedly, but we do not find that it Worked to the prejudice of the plaintiff, for upon the undisputed evidence in the case it was the duty of the mayor to convict him.

As to the question of the jurisdiction oi the mayor to try this ease without the intervention of a jury Section 4536 gives to the mayor authority co-extensive with the county, to try cases of misdemeanor where the penalty is by fine only.

In the ease of Inwood v. State, 42 O. S., 186, the Supreme Court held in cases of prosecutions for misdemeanors where the punishment was 'by fine only that the defendant did not have a constitutional right to a trial by jury.

In Cincinnati v. Steinkamp, 54 O. S., 290, the case is cited with approval, and in In re Kinsel. 64 Kansas, 5; 56 Lawyer’s Reports Annotated, 475, the case is discussed and followed’.

The same question was before the Kansas court as in the Inwood case. The Inwood case is expressly followed in State v. Smith, 69 O. S., 196, and is cited as determining that question authoratively in State v. Borham, 72 O. S., 358. So, we think that question is not an open question now.

The only remaining question in this case as to whether there was at law in force which made the sale of intoxicating liquors at the time the acts charged in this affidavit were committed, unlawful. i _ ,

Section 13195 provides:

“Whoever keeps a place where intoxicating liquors are sold, furnished or given away in violation of law, shall be fined, etc. ’ ’

This act is charged to have taken place on the 9th day of October, 1919, subsequent to the 26th day of May, 1919, when the Prohibition Amendment to our Constitution went into effect. It is insisted that by virtue of that amendment the existing laws relating to the sale of intoxicating liquors were repealed.

Section 9 of Article 15 is the section prohibiting the manufacture and sale of intoxicating liquors and reads as follows:

‘ ‘ The sale and manufacture for sale of intoxicating liquors as a beverage are hereby prohibited. The General Assembly shall enact laws to make this provision effective. Nothing herein contained shall prevent the manufacture or sale of such liquors for medicinal, industrial, scientific, sacramental, or other non-beverage purposes.”

' At the time that the acts charged in this affidavit were committed, it is said that there was no law in effect providing penalties for the sale of intoxicating liquor. No laAv has beén passed that was effective, at least, to carry into effect the provisions of the prohibition amendment, and probably most of the legislation relating to the sale of intoxicating liquors Avhich Avas upon the statute books, was repealed or at least became inoperative when the prohibition section Avent into effect.

But, would the constitutional amendment repeal a laAv AAdiich was not in any way obnoxious to any of its provisions? That section Avas in effect before the constitutional amendment was passed. But the amendment does not expressly or by implication repeal it. If it repealed any laws at all, it would be oníy such as were obnoxious to its provisions or such lavrs as' it was designed to do avmy AV'ith like the various local option laws, but, would it repeal a law AAdiich imposed a penalty for keeping a place where intoxicating liquors were unlawfully sold? We think not.

It is insisted that the laws passed by the General Assembly at that time imposing penalties for sales of intoxicating liquors, were not in force, there could be no unlawful sale, and consequently the keeping of a place would not be unlawful; but does it follow that the sale of intoxicating liquors as a beverage was not unlawful because no penalty was attached to the act of selling it ?

The sale is expressly prohibited by the Constitution itself: therefore, it is unlawful. It is true that no penalty attaches to the sale of intoxicating liquors until the Legislature has enacted laws which impose a penalty, but that makes no difference with the fact itself that the sale of intoxicating liquors was unlawful. Tt was unlawful because it was prohibited by the Constitution.

It is not the penalty itself that makes the sale unlawful, but it is unlawful because it is prohibited. The sale itself, being unlawful, it follows that keeping a place where intoxicating liquors are sold as a beverage is keeping a place in violation of law, to-wit, in violation of the constitutional provision forbidding it.

Therefore, we think there is no prejudicial error in the record in this case and the judgment is affirmed.

Judgment affirmed.

      Affirmed by the Supreme Court, February 15, 1921.


author: Hamilton, J.

text:
    INFERENCE AS TO OWNERSHIP.
    Court of Appeals for Hamilton County.
    Byrnes v. Hewston.

    Decided, February 16, 1920.

      Negligence — By a Contractor in Leaving Blasting Caps Scattered About —With the Result that a Boy Exploded. One and was Injured.

    1. In an action for personal injuries received by a boy about ten years of age, resulting from an explosion of blasting caps picked up by him in a field where the defendant contractor had had a camp sis months previous, the evidence showing that the caps were scattered on the ground near where defendant’s tool box had been placed and the defendant had used caps in blasting and that no other work of a similar character had been done in the neighborhood, the. jury might properly infer that tho caps were the property of tho defendant and had been carelessly left by him or his servants in the field; although there was a conflict of testimony as to whether tho caps used by defendant were of the same manufacture as those found by the boy, and defendant offered evidence of the careful manner in which he handled the caps used and that all not used there had been taken away. .
    2. Ordinary care requires that dangerous instrumentalities such as blasting caps should be cared for with the utmost caution.

      Frank E. Wood and Rogers & Headley, for plaintiff in error.

      Walter W. Clippinger and Thos. L. Michie, for defendant in error.

      Motion to require the. Court of Appeals to certify its record in this case overruled by the Supreme Court, ,Tune 3. 1920.

   Hamilton, J.

Heard on error.

The action below was one for personal injuries received by Dana K. Hewston, a boy about ten years of age, as a result of the explosion of some blasting caps picked up by the boy in a pasture, where he had gone to drive home a cow. The boy took the caps home and not knowing their character, he put some of them on burning coals in the cook range. An explosion followed by which he was severely injured.

The defendant, Joseph A. Byrnes, is a contractor, and about six months prior to the injury had been engaged in making a road. He had used a number of men and teams, and had had a camp on the pasture land in question. During the progress of the work they had done some blasting and had used percussion caps to ignite the dynamite.

There was a conflict of testimony as to whether the caps which Byrnes had were of the same manufacture as those which the boys found. The defendant offered evidence to the effect that when the caps were purchased they were put in charge of one Dodds, the foreman, and placed in a small house on wheels, which served as his office and sleeping quarters; that on each day, ivhen the blasting was done, the box containing the caps was returned to Dodds, who placed it under lock and key in the house wagon. After all the blasting was finished, defendant’s witnesses testified, the box and the remaining caps were given to another contractor who took them away.

The court submitted to the jury the question of the negligence of the defendant below.

The jury rendered a verdict in favor of the plaintiff, upon which the court entered a judgment against the defendant, who now prosecutes error.

The principal error complained of is that the evidence is insufficient to support the verdict.

There is direct evidence that Byrnes’ employes had been in the field where the caps were found, and that there had been, a tool box near the place where the boys picked them up. There is evidence that there was no other work of a similar character being done in the neighborhood. The jury had a right to infer that these caps were the property of Byrnes, and had been carelessly left by him or his servants in the open field.

The real point of difference presented' was one of fact — as to whether or not Byrnes was the owner of the caps and was responsible through his agents for the caps being in an exposed place.

The evidence is that some caps were found scattered on the ground near the tool box and were picked up by the boy, Hewston, but were taken by another boy. While the Hewston boy found the caps which caused the injury a little distance away, near the cow path, all the caps were found on grounds occupied as camping grounds by Byrnes’ employes six months before.

The trial court submitted the case to the jury upon the theory that the defendant was liable only if he was negligent in the manner of keeping the caps in question, and no complaint is made of that charge. In this respect it was at least as favorable to the defendant below as the law required. The jury had a right to find from all the evidence that the caps which the boys picked up were those which had belonged to Byrnes. On the question of negligence in the manner of keeping the caps the authorities show that the fact that they found their way from the possession of the defendant and onto an open field, under circumstances like these here shown by the evidence, has a tendency to prove that a proper degree of care was not used in keeping them. Ordinary care requires that such dangerous instrumentalities should be cared for with the utmost caution, with a degree of caution in fact quite inconsistent with the idea.of their being found lying loose upon the ground. Eckart v. Kiel, 123 Minn., 114 [143 N. W. 122], and Mathis v. Granger Brick & Tile Co., 85 Wash., 634 [149 Pac. 3], While the evidence offered on behalf of, the defendant tended to an opposite conclusion,. the jury were the sole judges of the credibility of the witnesses. Their conclusion, inconsistent with such testimony, is not necessarily contrary to law.

The judgment is affirmed.

Shohl and Cushing, JJ., concur.


author: Lieghley, J.

text:
    AS TO WHETHER A HOUSE WHERE GUESTS ARE ENTERTAINED IS A PUBLIC INN.
    Court of Appeals for Cuyahoga County.
    The Central District of the Christian Missionary Alliance v. Merrill.
    Decided June 25, 1917.

      Inkeepers — Liability of for Valuables of Guests — Determination as to Whether a House Receiving Guests for Hire is an Inn — Maintainanee of Safe for Valuables — Section 59'81.
    1. Whether a house where a guest is entertained is a public inn or a private house, is a question of fact.
    2. An establishment maintained by a Missionary Alliance, which consists of thirty rooms, to which reputable persons are admitted for hire, whether they be members of the association or not, and where they may obtain board for a day, week or month and where a register is kept, is a hotel, and said Alliance is liable to a guest for goods lost where it has not complied with the provisions of Section 5981, General Code, by maintaining a safe for the reception of valuables or by posting the required notice in the rooms.

      Carver & Thompson, for plaintiff in error.

      I. N. Loeser, for defendant in error.
    Heard on error.
   Lieghley, J.

The parties were in reverse order below and will be so mentioned here.

Tbe defendant maintains an establishment at Beulah Park, consisting of thirty rooms, to which reputable persons are admitted for hire, whether they be members of the Alliance or not The proof tends to show that an applicant may obtain board for a day, a week, or a month; that a register is kept; that there is no sign on the building; that on August 1, 1916, the plaintiff, a non-member, was received as a boarder or guest; and that on August 26, 1916, while she was absent from her room, jewelry and valuables were stolen therefrom by some intruder breaking the lock on the door. It is not claimed by the defendant that it complied with Section 5981, General Code, by maintaining a safe for the reception of valuables, or that notices were posed in the rooms as per said section.

The plaintiff filed her statement of claim in the municipal court to recover from defendant tlie value of the goods stolen. A trial thereof resulted in a judgment for plaintiff, to reverse which judgment error is prosecuted to this court.

In the trial of the case below the defendant claimed that it maintained a boarding house only. The plaintiff calimed that the defendant at the time maintained a hotel. The trial of the case involved principally a determination of the question of whether or not the defendant kept a boarding house or was an innkeeper. From the proof we are not inclined to say that the trial court was wrong. The question whether a house where a guest is entertained is a public inn or a private house, is a question of fact. (Beale on Innkeepers and Hotels, Sections 13 and 14). For authority as to who is a guest, see Arcade Hotel Co. v. Wiatt, 44 Ohio St., 32.

The position maintained by the defendant having been determined to be wrong, the defendant became responsible for the safety of the personal possessions of the plaintiff left by her in her room while a guest of said hotel in the absence of any substantial or proyen claim of negligence on her part. Fuller v. Coats et al, 18 Ohio St., 343, and Palace Hotel Co. v. Medart, 87 Ohio St., 130.

Judgment affirmed.

Grant and Carpenter, JJ., concur.


author: Jones, P. J.

text:
    WHEN DEBTS MUST BE PAID FROM CORPUS OF ESTATE RATHER THAN FROM INCOME.
    Hegner et al v. Hegner, Admr., de Bonis Non.

    Court of Appeals for Hamilton County.
    Decided, April 30, 1917.

      Wills — Widow Given Income for Life — Debts and Expenses must be Paid from the Corpus — Widow Entitled to Year’s Allowance Unless Will Otherwise Directs — Compensation of Executrix to be Calculated on Entire Estate.

    1. Where a will specifically gives the widow tlie income of all of testator’s estate during Iter life, she is entitled to the income from the time of the testator’s death, and debts of the testator and the expenses of administration must bo paid from the corpus of the estate.
    2. In such case, where the will does not otherwise expressly direct, the widow is entitled to receive the -year’s allowance provided by Section 1-0572, General Codo.
    3. In determining the compensation to be paid an executrix the statutory commissions, as provided in Section 10337, General Code, are to be calculated upon the entire estate.

      Herman P. Goebel, for plaintiffs in error.

      Bettinger, Schmitt & Kreis, for defendant in error.
    Heard on error.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme -Court, June 17 1817.

   Jones, P. J.

This case originated in the pro-bate court upon eseeptions to the account filed by the executrix in the settlement of the estate of Frank Messang, deceased. It was heard in the common pleas court on appeal, and this error proceeding was brought to review the judgment of the common pleas court disposing- of said exceptions.

Four questions are presented by the record:

1. Whether the widow was entitled to receive the income of testator’s estate from the date of his death, or whether part of that income, so far as was neeesary, was to be used for the payment of testator’s debts.

2. Whether the widow was entitled under the circumstances of the ease to receive her year’s allowance.

3. Whether the executrix was entitled to the statutory compensation charged in the account.

4. Whether the counsel fees paid to the attorney for the executrix were excessive.

Frank Messang’s ¡will contained the following items:

First: I desire that all my just debts and funeral expenses be paid ¡by my hereinafter named executrix.
“Second: I give and bequeath to my beloved wife, Louise Messang the income of all my estate, real and personal, for and during her natural life.
“Third: Subject to said life estate and the power of sale as hereinafter set forth, I give, devise and bequeath all my property, the real estate in fee simple and the personal property absolutely, to my nieces and nephews, to-wit: S'allie Hegner Saemann, Lillie Hegner Sargent, Cora Hegner Sargent, Stell-a Hegner, Frank Hegner, Walter Hegner, William Hegner and Lawrence Hegner, to be divided equally between them, or their heirs.
“Fourth-. I hereby nominate my beloved wife, Louise Mes-sang, as Executrix of this my last will and testament to serve without bond; and I hereby give her full power and authority to sell without order of court or application thereto, any or all of my property, at public or private sale, and on such terms as to her shall seem best, and to invest and re-invest the proceeds thereof, and in case of the sale of my real estate, to execute and deliver to the purchaser or purchasers proper deeds in fee simple therefor, and the purchaser shall in no case be required to look to the application of the purchase money.”

1. The will specifically gives to the widow the income of all of testator’s estate, real and personal, for and during her natural life. This bequest entitles her to the income from the time of testator’s death.

Plaintiffs in error contend that because under the statute in force at the time of testator’s death a settlement of the estate was not required until eighteen months from that date, the income of stocks and bonds should be accumulated by the executrix and used as a fund for the payment of debts, and the widow under the will was not entitled to receive any income until the debts had first been satisfied.

Such a construction would place upon the life-tenant the burden of the entire payment of the debts and costs of administration. This is contrary to the general rule, which is well stated in 40 Cyc., 1882, where numerous authorities in support are cited.

We think under the terms of the will the debts and expenses of administration should be paid out of the corpus of the estate, thus throwing the burden not only upon the remainderman but upon the life-tenant. The action of the probate court and the common pleas court in overruling this exception was correct; and in that respect the account and judgment are approved.

2. The will does not in any respect undertake to prevent the widow from receiving the year’s allowance provided by Sectior 10572, General Code. The allowance was duly fixed in accordance with the statute at $2,000. No exception has been taken to the amount as thus fixed, or to the method in which it was determined, but it is contended that because provision was made for the widow by giving her the income of the entire estate it was unnecessary to add to that income for the purpose of her firs* year’s support.

The ease of Collier v. Collier’s Exrs., 3 Ohio St., 369, is conclusive to the effect that, where, as in this case, the will does not otherwise expressly direct, the widow is entitled to such an allowance. The lower courts were therefore right in overruling exceptions in that respect.

3. In fixing the compensation of the executrix,' statutory commissions, as provided in Section 10837, General Code, were calculated upon the entire estate. Tt is objected to by plaintiffs in error, who contend that commission should be allowed only upon the amount of $5,901.67, being the amount of cash received and disbursed, and that no commission should be allowed upon the stocks and bonds, on the ground that that portion of the estate had not been collected and accounted for by the executrix.

All of the estate had undoubtedly been collected, and, so far as the terms of the will permit, it was entirely accounted for by the executrix. It is true that the account shows that the stocks and bonds are retained by Louise Messang, executrix, the income of which is to go to her for life under item second of said will. This wias a proper and complete settlement at that time. However, after the expiration of the life of Louise Messang it would become necessary — as appears from this record has now been done — that an administrator de bonis non with the will annexed should be appointed for the purpose of distributing this property to the remainderman entitled thereto under the terms of the will. To that extent, therefore, the estate of Frank Messang was not entirely settled by the filing of this final account.

As held by this court in Bates, Admr., v. Creed, 15 C. C. (N.S.), 433, at page 437:

“When, by reason of the death of the original executor or because of his resignation or removal, it becomes necessary to have an administrator de bonis non succeed him, or for any reason successive administrators are appointed to complete the administration of one estate, it is not intended that the costs of administration should thereby be increased, but the statutory commissions should be equitably apportioned between or divided among the successive executors and administrators in proportion to the value of the services rendered by them, respectively, in such administration. ’ ’

The same question was before the court of appeals of the sixth district in Thurston v. Ludwig, 25 C. C. (N.S.), 298, where the same ruling was made. In the opinion of the court in that case Judge Richards enters into a full discussion of the question; and supports the ruling by citation from other states.

Under this ruling the probate court made an allowance to Louise Messang for the statutory commission of $1,000, leaving a balance of such statutory compensation, $426.48 undisposed of to be used in meeting the expense of the subsequent administration of the estate by the administrator de bonis non. We think that this ruling of the probate court was proper, and to that extent the decision of the common pleas court in allowing the executrix the entire amount claimed in her final account was erroneous, and to that extent the judgment of the common pleas court should be modified.

4. The remaining question to be considered is whether $1,200 the amount paid by the executrix to her attorney for legal services rendered in the settlement of this estate was or not excessive. It is contended by plaintiffs in error that this amount was excessive and unreasonable, and more than such services were fairly worth.

We have carefully considered the evidence contained in the record in this respect and find that, considering the services rendered and the fact that the estate inventories more than sixty-five thousand dollars, and that its settlement involved considerable time and attention, the amount allowed must be deemed fair and reasonable and not in excess of the value of the services to such estate. In that respect therefore the judgment of both the lower courts is approved.

The judgment of the court of common pleas is therefore affirmed, except in respect to the matter of the statutory compensation of the executrix, as' to which the judgment of the probate court is approved rather than that of the court of common pleas.

Judgment accordingly.

Gorman and Hamilton, JJ., concur.


author: Dunlap, P. J. Vickery, J.-

text:
    LIABILITY OF CITY FOR NEGLIGENCE OF A GARBAGE WAGON DRIVER.
    Court of Appeals for Cuyahoga County.
    Sebastiano Russo, Administrator, of the Estate of Rosario Galati, Deceased, v. The City of Cleveland.
    Decided, February, 1920.

      Wrongful Death — Liability of City Where Its Own Negligence was Admitted — But a Question was Injected as to Contributory Negligence of the Decedent.

    The driver of a city garbage wagon, while passing through an allefrom west to east contrary to an existing ordinance, left his horse unhitched and unattended, which was also in violation of an ordinance in full force and effect, and while he was engaged in gathering up garbage the horse started and the wagon crushed decedent against a wall. Held:

    It was for the jury to determine, under proper.instructions, whether the admitted double violation of' city ordinances was the proximate cause of the accident, and if so whether the decedent was guilty of contributory negligence of a hind that would prevent recovery; and a charge to the jury which ignored the fact that the conduct of the city was negligence per se, and left it to the jury to weigh the negligence of both parties, was prejudicial error and requires a reversal of the judgment.

      Gilbert Morgan, and B. D. Nicola, for plaintiff in error.

      James Cassidy, for defendant in error.
   Dunlap, P. J.

In the common pleas court the plaintiff, as administrator sued the defendant, the city of Cleveland, for damages for wrongfully causing the death of plaintiff’s decedent, Rosario Galati, caused-as was claimed by the negligent act of the city of Cleveland, as set out in the petition.

The evidence tended to show that plaintiff’s decedent was injured while pushing a cart in an easterly direction on an alley called Parkman Court, in which alley the driveway, or paved portion upon which vehicles could pass, was only about eight feet wide, there being a sidewalk on each side of the same approximately two feet wide, slightly elevated above1 the roadway. As he was proceeding in this easterly direction a garbage wagon driven by an agent and servant of the city of Cleveland had just previously been driven up to a certain point in this alley and left standing there, the same having been driven from the west. The immediate cause of the accident was a movement of the horse drawing the wagon 'by which the cart was carried or moved in the direction the reverse from that in which it had come, and the plaintiff’s decedent was crushed by the handle of the cart against a house bordering on said alley. .

There is some dispute in the testimony as to whether plaintiff’s decedent had pushed his cart so far that it had come' in contact with some part of the wagon and had thus perhaps startled the horse and caused it to move forward, or whether he had stopped at some short distance from the wagon and from contact therewith, and was waiting for the driver of the wagon to return.

There is no dispute in the testimony, however, but that the horse attached to this garbage wagon was headed in a westerly direction, and that it had been driven in a westerly direction, which was contrary to a general ordinance of the city of Cleveland requiring vehicles using alleyways of that width to drive only east thereon; and there was no dispute in the testimony, in fact it was conceded by the driver of the garbage wagon that the horse was left unattended and unhitched, without anybody to take care of it while the driver went into a jmrd close by for the purpose of collecting garbage.

Ordinances of the city of Cleveland, admitted by the defendant to be existing and valid ordinances, were admitted, which are as follows:

Sec. 1267. “No person shall leave any horse or horses, whether attached or unattached, to any carriage, wagon, cab or other vehicle, standing on any street, lane, alley or public ground, unless said horse or horses be securely hitched or fastened, or unless the reins be in the hands of some person in charge of said horse or horses, or within his immediate reach, and it shall be unlawful to hitch or fasten any horse or other animal to any tree or shrub in any street, alley, public ground or public place in the city of Cleveland.”

Sec. 1341. '‘The owner, operator, driver or person in charge of any cart, dray, wagon, etc., or other vehicle used, propelled or driven upon the streets of the city of Cleveland shall conform to and observe the folio-wing rules of the road upon all such streets, alleys, avenues and places in said city.

1. Vehicles shall be driven in a careful manner and with due regard for the safety and convenience of pedestrians and all other vehicles.

2. Vehicles shall keep to the right side of the street except when necessary to turn to the left in crossing or overtaking another vehicle.

3. -Vehicles shall pass each other on the right.”

See. 1343-H. (Direction of traffic in alleys.) “In all alleys where the driveway is less than twelve feet wide all vehicles must enter or pass over the same as follows: In those alleys running north and south the direction of the traffic shall be from north to south, and in those alleys running east and west the direction of the traffic shall be from east to west.”

The violation, therefore, of at least two of the city’s ordinances by one of its own employees driving this garbage wagon is undisputed, and must be regarded as a settled and determined fact' in the ease.

The question of whether or not the plaintiff was guilty of contributory negligence which p-roximately caused or contributed to cause his injury, was a proper question for solution by the jury as was also the question of whether or not' the undisputed negligence of the city was the proximate cause of the death of plaintiff’s decedent. The jury found in favor of the defendant, upon which finding judgment was entered, and this petition is filed seeking a reversal of this judgment.

It is claimed by the city that the death of plaintiff’s decedent was not due to the accident, and that sufficient evidence is offered upon this question of fact to warrant the .verdict of the jury upon this theory alone. We unanimously and emphatically agree that this judgment can not be affirmed upon this theory. The evidence to our minds clearly shows that the death of plaintiff’s decedent was due to the. accident, and we have no hesitation in saying that such a finding on the part of the jury, if made, was manifestly against the weight of the evidence.

If this judgment is to be affirmed, it must be upon the theory that the jury was justified in finding that plaintiff was guilty of contributory negligence. Upon this point we recognize the fact that minds may differ. That question was a proper one for submission to the jury under a charge correctly stating the law, and we cannot say -that in this respect the finding of the jury was manifestly against the weight of the evidence. Nevertheless we are of the opinion that the question of contributory negligence of the plaintiff was submitted to the jury-under a charge that was misleading and erroneous and sufficiently prejudicial to warrant a reversal of this judgment. As we have before stated, the violation of the two ordinances by the defendant through its driver was undisputed and conceded, and by all the rules of evidence it became an admitted and determined fact in the case. It is not for the jury to determine in such a situation whether or not the conduct of the city through its driver is negligence. The law makes such conduct negligence per se, and makes it. unnecessary for the jury to further find upon the question of the city’s negligence.

A proper charge under the situation revealed by this ease would in effect instruct the jury that the violation of said ordinances ¡being admitted, the negligence of the city in this case is a conceded fact, and "so far as you are concerned you are to -regard such negligence as proven. It is only for you to determine whether or not such negligence was the proximate cause of the injuries to plaintiff’s decedent which caused his death, and the further question of whether or not plaintiff’s decedent was guilty of contributory negligence.”

It' seems to us that these two questions are the only questions in this case to be determined by the jury upon the question of liability. The court, however, charged:

“Now it is for you to decide in the light of this testimony whether or not the city was guilty of negligence. If it was, whether or not the plaintiff’s decedent was also guilty of negligence or not.”

This left it for the jury to conclude that the violation of an ordinance is to be excused, overlooked and condoned at its pleasure. It puts the jury upon a higher plane than the city council. It makes more or less of a farce out of the solemn passage of an ordinance and holds it to be a mere scrap of paper which may be regarded or disregarded at the whim or caprice of the minds of the men on a jury. The prejudice to plaintiff’s rights here is most apparent, for it is- easily conceiveable that the jury reasoned that the mere leaving of a well-trained horse, such as the evidence showed this horse to be, unhitched upon the public street was not an act of negligence; that the happening of any serious result from such a natural course of conduct could hardly be anticipated; and inasmuch as the jury was given untrammeled license to so treat this act either as negligence or not as it deemed fit, it becomes quite natural to suppose that its verdict was reached rather from such considerations than from a consideration of the subject of the contributory negligence of plaintiff’s decedent or the subject of proximate cause.

There are vices, we think also, in the hypothetical questions submitted to the expert witnesses for the city. Thus in the hypothetical question there is included the statement “he was dismissed from the hospital as cured and able to perform all necessary duties.” The testimony of the only witness for the defendant who testified as to decedent’s condition on leaving the hospital is best summed up in the words of this witness as found on page 165 of the record where the statement is made:

‘ ‘ He was considered in a condition fit to be discharged from the hospital. He got up himself out of bed, went to the toilet, and he was able to perform all' the things that a , man convalescing needs to perform without assistance.”

We do not want to ’be captious and do not reverse this cause because of the faulty hypothesis, realizing the discretionary, power of the trial court, but our own opinion is that the hypothetical questions do not hew as closely to the line of fact as is at least desirable in a proper administration of justice. We reverse this case, however, for error in the charge of the court as indicated in this opinion.

Judgment reversed and remanded.

Washburn, J., concurs.

Vickery, J.-

Concurring in the view that the death of plaintiff’s decedent whs due to the accident, and concurring in the view that insofar as this judgment should be reversed as being against the weight of the evidence if the verdict of the jury was founded upon that theory; but does not concur in the view that the violation of the ordinance upon the part of the employee of the city was negligence per se, and for that reason dissents from the judgment.


text:
    JURISDICTION IN DIVORCE PROCEEDINGS.
    Court of Appeals for Hamilton County.
    Schmid, by etc., v. Schmid.
    Decided, May 7, 1917.

      Divorce — Dismissal of Petition 'Without Hearing — Confers Jurisdiction on Error in the Court of Appeals — Proceedings may he Brought Either in County of Residence or County Where Cause of Action Arose, if in Ohio.

    1. The court of appeals has jurisdiction of a proceeding in error to review a judgment dismissing, without hearing, a petition for divorce on the ground of non-residence of the plaintiff.
    2. Under Section 11980, General Code (106 O. L., 339), a plaintiff, who has been a resident of this state at least one year before filing the petition, may institute proceedings for divorce either in the county in which such plaintiff has been a hona fide resident for thirty days or in the county where the cause of action arose.

      Hicks & Hicks, for plaintiff in error.
   Jones, P. J.

Heard on error.

The original action was brought by Frank Schmid, by his father and next friend, Albert Schmid, against Amanda Schmid, as defendant, in the court of common pleas of Hamilton county, Ohio, division of domestic relations, for divorce, on the grounds of extreme cruelty and gross neglect of duty.

, As amended the petition alleged that plaintiff was and had been a resident of the state of Ohio for more than one year, and of Clermont county for more than thirty days prior to the filing of the petition, and that the acts of which he complained occurred in the county of Hamilton and state of Ohio.

The defendant was personally served with summons and a copy of the petition. She filed no answer or demurrer, and when the ease came on for hearing she did not appear and was not represented by counsel. And the court of. its own motion, upon the allegations of the petition, without having heard any evidence, entered judgment dismissing plaintiff’s petition without a hearing, on the ground that the court had no jurisdiction of the action because the plaintiff was not a resident' of Hamilton county.

This error proceeding was then filed to secure a reversal of that judgment.

In the case of Pappalardo et al v. Pappalardo (28 O. C. A., 449, 6 Ohio App., 291), decided by this court January 8, 1917, we had occasion to consider the jurisdiction of the court of appeals, under the present law, to review a decree of divorce granted by the court of common pleas, and we there held that a judgment granting a divorce is not subject to such review because contrary to public policy and the uniform decisions of our courts.

In the instant case, however, no decree for divorce was granted, nor was it refused, but the court refused to hear the case and dismissed the petition without a hearing, holding that it had no jurisdiction of the action for the reason that the petition disclosed that the plaintiff was not a resident of Hamilton county, but a resident of Clermont county, Ohio. The reasons for the refusal to entertain error proceedings in the Pappalardo case, therefore, do not obtain here, and this court has jurisdiction in this case. This by analogy is shown to be the policy of the law by the terms of Section 12002, General Code, which provides that no appeal shall be allowed from a judgment or order in divorce cases “except from an order dismissing the petition without final hearing.” The change in Section 6, Article IV of the Constitution, defining the jurisdiction of the court of appeals, would not permit the hearing of the case on appeal de novo, but the fact that the section has not been repealed indicates the legislative intent that a review should be had where there has been no final hearing.

The statutes in relation to divorce and alimony are found in Title IV, Division VII, Chapter 3, containing Sections 11979 to 12003, inclusive, General Code. Section 11980 now reads as follows:

“Except in an action for alimony alone, the plaintiff must have been a resident of the state at least one year before filing the petition. Actions for divorce or for alimony shall be brought in the county in which the plaintiff is and has been for at least thirty days immediately preceding the filing of the petition, a bona fide resident or in the county where the cause of action arose. The court shall hear and determine the case, whether the marriage took place, or the cause of divorce occurred, within or without the state.”

By the terms of the above section, in order to bring an action in this county, the following requirements must appear in plaintiff’s petition:

1. Plaintiff must have been a resident of the state at least one year before filing his petition,

2. The action shall be brought (a) in the county of which the plaintiff is, and has been for at least thirty days immediately preceding the filing of the petition, a bona fide resident: (b) or in the county where the cause of action arose.

The requirement as to thirty days residence in the county was inserted in the recent amendment of this section, found in 106 Ohio Laws, 339, but in other respects the wording of the section in the General Code is substantially the same as it appeared in Section 5690, Revised Statutes, and as it has stood for many years.

The language employed clearly provides that the action may be brought either in the county where the plaintiff resides or in the county where the cause of action arose. The meaning of the language is clear and without ambiguity. The use of the disjunctive “or” provides for an action in either county. To hold otherwise would be to eliminate an entire clause from the section, or to ignore the clear import of the words used. All rules of statutory construction require that a statute should be so construed as to give force and effect to every part of it.

The meaning of this section is so clear that is entirely unnecessary to consider the reason for its provisions. But it can be readily seen that while it is usually a matter of convenience for a plaintiff to bring his action in the county of his residence, it might in some cases be much less expensive and more convenient to bring the action in the county where the cause of action arose and where the necessary witnesses reside and are available. These, however, are matters for the consideration of the Legislature; and, where the meaning is clear, as we hnd it to be in this provision, nothing remains but to follow the law as it is written.

The petition in this ease contains all the necessary averments as to the jurisdiction, and the court below was clearly in error in refusing to hear the case.

Judgment reversed and cause remanded to the court below with instructions to hear and determine the case, and for such proceedings as may be authorized by law.

Gorman and Hamilton, JJ., concur.


author: Hamilton, J. Cushing, J.,

text:
    UNLAWFUL MUNICIPAL AID TO A STREET RAILWAY COMPANY.
    Court of Appeals for Hamilton County.
    Harth v. City of Cincinnati et al.

    Decided, April 12, 1920.

      Constitutional Law — Statutory Provision for Replacement Toy Municipality of Worn Out Street Raihoay Tracks and Assessing the Cost Against the Company Invalid Because in Wffect a Lending of the City’s Credit.

    Sections 3812-2 and 3812-3, General Code (108 O. L„ 215-218) which provide for the replacement or repair of worn out or- defective rails, ties, etc., of street railway companies in streets of municipalities, when such streets are to be paved, repaired, improved, etc., and in case the railroad companies fail to do so authorize municipalities to make such replacements, repairs, etc., and to assess the' cost against the railway companies, and issue bonds in anticipation of their collection, are invalid, being in contravention of Article VII, Section 6, of the Constitution of Ohio, which prohibits municipalities from raising money for or loaning their credit to any joint stock companies, corporations, or associations.

      Walter M. Schoenle, for plaintiff.

      Saul Zielonka, City Solicitor, and William Jerome Kuertz, Asst. City Solicitor, -for defendants.

       Affirmed by the Supreme Court, June 22, 1920.

   Hamilton, J.

Heard on appeal.

The plaintiff, Edward J. Harth, as a taxpayer of the city of Cincinnati, Hamilton county, Ohio, on January 23, 1920, in writing, requested the city solicitor of Cincinnati to file proceedings in a court of competent jurisdiction to enjoin the defendants from proceeding further under the resolutions of the- city council of Cincinnati, passed November 18, 1919, declaring the necessity of requiring the Cincinnati Street Railway Company and the Cincinnati Traction Company to renew and replace rails, etc., along Freeman avenue, under the ordinances of the city of Cincinnati passed November 2-5, 1919, and December 23, 1919, being ordinance No. 344-1919 and ordinance No. 388-1919, and to enjoin the city auditor from delivering to the trustees of the sinking fund of the city of Cincinnati -the assessment bonds for the improvement of Freeman avenue by the construction of rails, ties, road-bed and tracks, authorized under ordinance No.' 388-1919, in the sum of $60,800, which the board of sinking fund trustees had agrees to purchase.

The solicitor refused to bring the action requested, and the plaintiff as such taxpayer of said city brought the action on behalf of the city in the superior court of Cincinnati for purposes as stated in the above request to the city solicitor, and, by the petition, challenged the constitutionality of the statute of the state of Ohio passed April 17, 1919, found in 108 O. L... part 1, 215 to 218, inclusive, which is the authority for the ordinances and resolutions above referred to.

The defendants filed demurrers to the petition on the ground that the petition did not state facts sufficient to constitute a cause of action against them. The court below sustained the demurrers to the petition, and, the plaintiff not desiring to plead further, judgment was entered in favor of the defendants and the petition was dismissed. Thereupon, the plaintiff appealed the ease to this -court.

The question for determination involves the constitutional- or provisions of the Constitution limiting or prohibiting an as-April 17, 1919, and found in 108 O. L., 215.

In substance, this statute provides that where a municipality finds it necessary to improve a street by paving, repaving or resurfacing, and in said street there are located railroad rails, ties, roadbed or tracks of a street railway company, which rails, ties, roadbed or tracks have become worn out or defective, and, upon notice, the street railway company fails or refuses to renew, replace or reconstruct the rails, ties, roadbed or tracks in accordance with the plans and specifications furnished by the municipality, the municipality may proceed to make such reconstruction, and assess the costs thereof against said railway company; and, apon failure of the company to pay the assessment of the C'ost in cash, the municipality may, by ordinance, provide for the payment of said assessment in not to exceed ten annual installments with interest thereon, and bonds of the city’ may be issued in anticipation of collection of said installments. Tt is further provided that for any unpaid installments due after the expiration of the company’s franchise the company shall not be liable, unless it continues to use the track or tracks after such franchise has terminated.

Council of the city of Cincinnati has proceeded under this statute by legislation to the point of issuing and delivering bonds of the city of Cincinnati in the sum of $60,800, the estimated cost of the labor and material for replacing the rails, ties and tracks of the street railway company on Freeman avenue, Cincinnati, and the bonds have been accepted by the sinking fund trustees of the city, but delivery thereof has not been made.

The petition asks for an injunction against the delivery of the bonds and against further proceeding under and by virtue of said statutes and ordinances relating thereto.

Article 7, Sec. 6, of the Constitution of Ohio, provides:

“No laws shall be passed authorizing any county, city, town or township, by vote of its -citizens, or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever; or to raise money for, or to loan its credit to, or in aid of, any such company, corporation or association.”

The question for determination is: Does the statute authorize a municipality to raise money for, or loan its credit to or in aid of a street railway company or companies? If so, it necessarily contravenes Art. 7, Section 6, of the Constitution of Ohio, and the statute and all proceedings thereunder would be invalid.

It is urged in defense of the statute that tire purpose of the statute is to enable the municipality, while the street is undergoing improvement, to place the tracks, rails, etc., of the street railway company in good condition, thereby avoiding the’ frequent tearing up or damage to the street after the improvement is made, and that by doing the work all at one time better results are obtained.

However laudable the motive may be it is not within the province of the court to consider the wisdom or laudability of a purpose, and these considerations can have nothing to do with the authority of a municipality to loan its credit, if it does' so. ‘ ‘ The constitution is the superior law arid the ultimate criterion. The court’s sole duty is to enforce it.” State v. Cincinnati St. Ry., 97 Ohio St., 283, 309.

Stripped of all verbiage and considered from the standpoint of legal interpretation only, we find this situation. Under authority of the statute in question the city notified the street railway company that on certain streets under improvement its rails, ties, tracks, etc., were worn out and defective; that the city had made all necessary surveys and estimates of the cost of replacing these tracks, rails and ties, both for labor and material ; that if the railway company did. not within the time named in the ordinance furnish the material and labor to replace the tracks, rails, ties,- etc., the city would proceed to contract on its own responsibility to have this material furnished and work done; that when completed it would be the property of the railway company and the company would be given an opportunity to pay the cost thereof in cash, but if it did not do so the city would permit it to pay for the same in ten equal annual installments; that to raise the initial money to pay the costs of the construction to the contractor the city would issue its bonds, pledging the full faith and credit of the city to the payment of the bonds; and that the city would take a lien on all the property of the company to secure the payment of the installments as they should become due.

In effect the city further said to the street railway company that in ease its franchise expired before all installments were paid it would be relieved from the further payment of any installments unless it continued to use the tracks after the franchise expired.

Under what guise or analysis of facts can it be claimed that this is not a furnishing of money or loaning of the credit of the city? It is not a part of the street improvement. If it were, this cost could be assessed upon the abutting property.

The assertion that it would give long life to the street by preventing the street car company from tearing up the tracks or laying defective materials only argues an excuse for the violation of an express inhibition of the constitution.

It is urged that the proceeding is authorized by the police power possessed by the municipality, but police power is only authorized for the benefit of the health, morals, and, perhaps, in some instances, safety of the people. Certainly the replacing of worn out rails and ties of the railway company can in no wise be construed as affecting the public health or morals of the community. The question of police power has no place in the consideration of this case.

If the statute in question were to be upheld as not violating the provisions of the constitution, then a statute providing that a municipality may at the time of the improvement of the street relay new gas pipes, new conduits, new water mains, if the water system is privately owned, and the issuing of .bonds under such circumstances, would likewise be constitutional. And, if a municipality may do all these things under the present statute, or similar statutes, then it becomes at once apparent that the city may be furnishing the money or loaning its credit to the maintenance of all public utilities. This illustration is suggested to show where such statutes might lead, and brings the proposition to the very groundwork of the reason of the constitutional inhibition.

In the case of Taylor v. Ross Co. (Comrs.), 23 Ohio St., 22, at page 83, the court says:

“Where public credit or money is furnished, to be used in part construction of a work, which, under the statute authorizing its construction, must be completed, if completed at all, by other parties out of their own means, who are to own or have the beneficial control and management of the work when completed, the public money or credit thus used, can only be regarded, within the meaning of the constitutional provision in question, as furnished for, or in aid of such parties.”

While the main question in that case was a joint transaction, which is prohibited, the principle applying to the instant ease is clearly stated. In this ease the city is advancing the money to the contractor, and issuing its bonds, pledging the full faith and credit of the city to their payment, and when the work is completed the ownership is absolutely in the street railway company. The mandate of the constitution is that such aids shall never be authorized.

While it may not at first be apparent that the statute under consideration manifests an intent to authorize the municipality to raise money or to loan its credit directly, examination and reflection shows that it does so indirectly. It. is axiomatic that what the General Assembly is prohibited from doing directly, it has not power to do indirectly. Taylor v. Ross Co. (Comrs.), supra, and Wyscaver v. Atkinson, 37 Ohio St., 80.

The assessments contemplated and the bonds sought to be issued are not assessments for street improvements,' but the proceeding is an attempt to assess or issue bonds of the city for the payment of the work and material for replacing, relaying and repairing worn out and defective rails, ties and tracks, the private property of the street railway company. This we hold to be raising money for or loaning its credit to the street railway company, which is prohibited by Art. 7, Sec., 6, of the Constitution of Ohio. We, therefore, hold that supplementary Secs. 3812-2 and 3812-3, G. C., of Ohio, reported in 108 O. L., 215, passed April 17, 1919, contravene Art. 7, Sec. 6, of the Constitution of Ohio, and are therefore invalid, and that all proceedings conducted by the city under and by virtue of the authority contained in said statutes are void.

A perpetual injunction will be granted.

Shohl, J., concurs.

Cushing, J.,

dissenting. I do not concur in the opinion of the majority of the court. Their determination of the case is based solely on a consideration of Art. 7, Sec. 6, of the Constitution, and an extract from the' opinion in the case of Tailor v. Ross Co. (Comrs.), 23 Ohio St., 22, at page 83. They have not considered Art. 13, See. 6, relating to the powers of cities in assessment cases.

The facts in Taylor v. Ross Co. (Comrs.), supra, were that a statute authorized a county, township or municipality to levy taxes not above a given per cent, on the taxable property of the locality, for the purpose of building so much of a railroad as can.be built for that amount, and it was in fact a gift to the railroad company.

The questions that have been litigated under Art. 8, Sec. 6, of the Constitution, have been the use of money or credit of the municipality in private enterprises for profit, or as bonuses. These are both clearly prohibited.

In the case of State v. Cincinnati Street Railway Co., 97 Ohio St., 283, 303, the court in its opinion quotes with approval from Walker v. Cincinnati, 21 Ohio St., 14, 54:

‘ ‘ The mischief which this section interdicts is a business partnership between a municipality or subdivision of the state, and individuals or private corporations or associations. It forbids the union of public and private capital or credit in any enterprise whatever. In no project originated by individuals, whether associated or otherwise, with a view to gain, are the municipal bodies named permitted to participate in such manner as to incur pecuniary expense or liability. They may neither become- stockholders nor furnish money or credit for the benefit of the parties interested therein.”

Justice Brewer delivering the opinion of the court in Pleasant Township v. Aetna Life Ins. Co., 138 U. S., 67, at page 75 (34 L. Ed., 864), approves the language of the Supreme Court of Ohio in Walker v. Cincinnati, supra. At page 69 he says:

“This provision was inserted in the constitution, and adopted by the people, in view of the fact then and since well known in the history of all states, particularly in the West, that municipal bonds to aid railroads were freely voted in expectation of large resulting benefits — an expectation frequently disappointed. It was a declaration of the deliberate judgment of the people of Ohio that public aid to such quasi public enterprises was unwise, and should be stopped.”

In case tbe city is empowered to construct a completed street for tbe convenience of tbe public, for travel by vehicle and street car^ it proposes to charge the part of the cost it has determined is for the benefit of the railway companies to them.

It is claimed by the city that the statutes and ordinances are within the provision of the Constitution authorizing it to make improvements and levy assessments to pay for them, and that the necessity for an improvement and the authority to levy assessments to pay for it are by the Constitution vested in the legislative branch of the government and can not be interfered with by a court.

In Scovil v. Cleveland, 1 Ohio St., 126, Judge Ranney, at page 137, quotes from the opinion of Chief Justice Marshall in Providence Bank v. Billings, 29 U. S. (4 Pet.), 514 (7 L. Ed., 939).

‘1 The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. * * »:< p0yrer may ke abused, but the interest, wisdom and justice of the representative body, and its relations with its constituents, furnish the. only security against unjust and excessive taxation, as well as against unwise legislation.”

In Hill v. Higdon, 5 Ohio St., 243, Judge Ranney, in passing on the authority of the legislative body to levy or authorize assessments, says at page 244:

“The subject is very important in its practical bearings, and not without' serious difficulty; and for myself I am bound to admit, that the: doubts which I at first entertained have not been entirely removed. But it is not upon doubts that this case is to be decided. The .question can only be solved by a construction of several provisions of the constitution; and a proper construction can- only be given, when the intention of those who framed and adopted that ■ instrument is ascertained. We are bound to presume that the Generál Assembly have continued to pass laws, conferring this' authority, upon a settled conviction of their power to do so; and it-is only when a clear incompatibility between tbe constitution and'the lay is made to appear, that the courts are authorized to interfere.”

In Parsons v. Columbus, 50 Ohio St., 460, 467, Judge Minshall quotes with approval the following language:

“This obviously enjoins upon the legislature the duty of providing suitable and proper restrictions upon the enumerated powers; but in what these restrictions shall consist, and how they shall be imposed, are subjects left to the discretion or sense of duty of the legislative department, with the exercise of which the courts can not interfere.” ; ,

In Walker v. Cincinnati, 21 Ohio St., 14, the fifth proposition of the syllabus is:

‘! The authority and duty to prevent an abuse of the powers of taxation and assessment by municipal corporations, is entrusted by the Constitution to the General Assembly, and not to the courts of the state. And the power of the legislature to authorize local taxation can not. be judicially denied on the ground that the purpose for which it is exercised is not' local, unless the absence of all special local interest is clearly apparent.”

The question in this case, as I understand it, is whether the statute and ordinance amount to loaning credit under Art. -7, See. 6, or to an assessment proceeding under Art. 13, See. 6, of the Constitution.

Article 13, Sec. 6, is as follows:

“The General Assembly shall provide for the organization of cities, and incorporated villages, by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power.”

In addition to authorizing the organization of cities, it directs the legislature to pass laws restricting their powers of taxation, assessment, borrowing money, contracting debts, and loaning their credit.

Loaning credit, .used in this provision of the Constitution, must be in connection with the powers granted — among, them levying assessments.- Assessments shall be levied when the council shall have declared that the improvement is conducive to the public convenience or welfare. Sec. 3812, G. C.

Heretofore assessments have only been levied on real property abutting the improvement. I have not found any cases, or provisions of the constitution limiting or prohibiting an assessment on property within the municipality, particularly when it has been benefited by the improvement.

A consideration of the apparent conflict in the use of the words “loaning credit” in Art. 7, Sec. 6, and Art. 13, Section 6, leads to the conclusion that they are not in conflict.

Article 7, Sec. 6, is a general provision limiting the power of the legislature in its enactment of laws.

Art. 13, Sec. 6, is special, being limited to subjects specified —among them that of1 assessments.

It is the law that all provisions of an instrument, if they part' must be given effect, and where two provisions of a constitution are in conflict, one being general and the other special, and the special relates to a particular subject or subjects, its provisions are to control over the general provision.

Judge Shauck in delivering the opinion of the court in Akron v. Roth, 88 Ohio St., 456, 461, says:

“The rule is that special provisions relating to a subject will control general provisions in which, but for special provisions, the subject might be regarded as embraced.”

In People v. Metz, 193 N. Y., 148, 149, 157 (24 L. R. A., 201n), the court said:

“In construing a constitution all its provisions relating directly or indirectly to the same subject must be read together and any amendment in conflict with prior provisions must control, as it is the latest expression of the people.”

This ease is cited in People v. Cassidy, 50 Col., at page 520.

Judge Shaw in Mascolo, In re, 25 Cal. App., 92, says:

“A construction which raises a conflict between parts of a constitution is inadmissible when by any reasonable interpretation they may be made to harmonize, and in case of irreconcilable repugnancy tbe provision last in order of time should prevail.”

In Hoag v. WasMngton-Oregon Corp., 75 Ore., 588, 613, the Court says:

“It is a familiar rule of construction that, where two provisions of a written constitution are repjugnant to each other, that which is last in order of time and in local position is to be preferred.”

There is no question but that the proper construction of streets, including railway tracks, is for the welfare of the public. It saves the expense to the property owners and taxpayers of frequent repair and resurfacing of streets. The convenience of the public is promoted by having streets and car tracks suitable for rapid transit. The determination of the question of public welfare and convenience is vested in the legislative branch of the government.

The conclusions deducible from decided 'eases and the considerations stated are that the legislation in question is within the purview of Art. 13, See. 6, of the Constitution, and that that section governs; that the convenience of the public, the wisdom and justice of such legislation, rest in the legislative branch of the government, with which the judicial branch may not interfere; that the legislation here complained of is not clearly in violation of constitutional prohibition, and must therefore be upheld.


author: Sayre, J.

text:
    FORFEITURE OF CHECK OF'BIDDER WHO FAILED TO EXECUTE CONTRACT.
    Court of Appeals for Meigs County.
    The Village of Pomeroy, etc., v. W. H. Ringwald et al.
    Decided, March 10, 1920,

      Municipal Corporations — Chech Deposited by Bidder as a Guaranty of Good'Faith — Forfeited for Failure to Enter into the Contract Avjarded to Him.

    When a municipality accepts the bid of a contractor whose bid was accompanied by a certified check in compliance with Section 4222 and the contractor fails to enter into the contract within the time required, the municipality is authorized to collect the amount of the check for its use and benefit.

      H. C. Fish, for plaintiff in error.

      Russell & People, for defendants in error.
   Sayre, J.

Heard on error.

This is an action by defendants in error to recover two hundred and fifty dollars, the amount of a certified check which accompanied their bid for street paving in Pomeroy. The bid was accepted by the council, but defendants failed to enter into the contract and execute a bond within ten days, as required by the instructions to bidders, and the contract was subsequently awarded to another. The check was cashed by the village and the proceeds thereof passed to its treasury. The records of the council are silent as to any forfeiture by the council of the money evidenced by the certified cheek.

The statute, Section 4222', provides that:

“Each such bid shall contain the full name of every person or company interested in it and shall be accompanied by a sufficient bond or certified check on a solvent bank, that if the bid is accepted a contract will be entered into and the performance of it properly secured * * *

The notice to the contractors contained the provision that:

“Each bid must be accompanied by a certified check in the sum of $250.00 as a guaranty that if said bid is accepted a contract will be entered into and its performance properly secured.”

The “instructions to bidders,” which were made part of the plans and specifications and to which the bid of defendants in error was attached, contained the following language:

“The bond shall be for an amount equal to the amount of the bid. Or the bidder may, at his option, file with the clerk a certified cheek for the sum of three hundred dollars, the same to be payable to the village if the bidder fails to enter into contract within ten days after the acceptance of his bid by the council. ’

The notice to the contractors provides that the check shall be a guaranty that the contract will be entered into and its performance properly secured, and the “instructions to bidders” provides that the check shall be payable to the village if the bidder fails to enter into the contract.

So, if the village was authorized by the statute to make the certified check such guaranty, and payable to the village in case the bidder failed to enter into the contract, then the contention of the plaintiff in error must be upheld.

It will be observed that the statute is silent as to what shall be done with the certified cheek if the contract is not entered into. But certainly the Legislature never intended that the furnishing of the certified check should be a meaningless performance. The purpose of the bond or check required by Section 4222 is to compel the bidder to enter into the contract if his bid is accepted or lose the amount thereof if h,e fails or refuses to do so. Further, it is to compensate the municipality, to. some extent at least, for loss of time required to again advertise if that is necessary, for the expense of advertiseing and by being required, possibly, to pay a greater sum for the work to be performed. The amount of the bond or cheek stands as liquidated damages for the loss sustained by the village. The council by fixing the amount beforehand, and the bidder by his making a bid, have fixed a definite sum as damages for the failure on the part of the bidder to enter into the contract. Wheaton B. & L. Co. v. City of Boston (Mass.), 90 N. E. 559. McQuillen on Municipal Corporations, section 1221.

The fact that the council has not passed any ordinance formally forfeiting the amount of the certified check is not a defense, as it seems to us. By its refusal to pay over the money there is an actual forfeiture, and this is sufficient.

The judgment will be reversed and a judgment may be entered in favor of the plaintiff in error.

Judgment reversed.

Walters and Middleton, JJ., concur.


author: By the Court.

text:
    DUTY OF MOTORMAN TO STOP TO BE DETERMINED FROM THE CIRCUMSTANCES.
    Court of Appeals for Hamilton County.
    Cincinnati Traction Co. v. Cahill, Admr.

    Decided, April 19, 1920.

      Street Railways — Motorman to he Guided hy Ordinary Prudence — In Deciding whether Danger Portends and the Oar Should he Stopped —Charge of Court in an Action for Death of a Child Struck hy a Car.

    In an action for damages for the wrongful death of a child who ran across a street in front of a car, between crossings, it is error to charge “if the jury believe from the evidence that the motorman on defendant’s car which killed Albert Cahill as alleged in the petition and admitted in the answer, was running said car at a high and excessive rate of speed, under the circumstances then prevailing on Harris avenue, when he did see or ought to have seen him in time to stop said car before it hit him, and he did not do so, then th,e said motorman was guilty of negligence and the defendant is liable.” A motorman is not required to stop unless he is aware of something which would lead a person of ordinary care and prudence to believe that failure to stop would cause injury.

      Rogers & Headley, for plaintiff in error.

      Crosley & Rogers, for defendant in error.

      Motion to direct the Court of Appeals to certify its record in this cáse overruled by the Supreme Court, June 28, 1920.

   By the Court.

Heard on error.

The defendant in error brought an action'in the court of common pleas against the Cincinnati Traction Company for negligently causing the death of Albert Cahill.

The defendant in its answer admitted that one of its cars ran over and killed the boy, but denied all other allegations of the petition. This put at issue the averments of negligence, including the charge of excessive speed, failure to give warning by sounding a bell, or otherwise, and failure to maintain the proper lookout for pedestrians who might be crossing the street. The case was tried to a jury, and a verdict for the plaintiff for $1,500 was rendered. To the judgment on this verdict, the defendant prosecutes error.

The record shows that the plaintiff’s intestate, a four year old boy, had crossed the street in the middle of the block to sell some pieces of metal to a junk dealer, whose wagon was almost opposite his home. The street at this point was 40 feet wide. The distance from the south rail to the curb was 14 feet. The boy was at the wagon as the car approached it. As he ran back across the street toward his home, he was struck and killed by the car.

The contention of the defense was that the accident was unavoidable, and that the boy suddenly and unexpectedly came into the path of the oncoming car when it was at such distance that the motorman was unable to avert the injury.

Several specifications of error are relied upon.

At the request of plaintiff below the court gave several charges.

Plaintiff’s special charge No. 1 was as follows:

“If the jury believe from the evidence that the motorman on the defendant’s ear which killed Albert Clahill as alleged in the petition and admitted in the answer, was running said ear at a high and excessive rate of speed, under the circumstances and conditions then prevailing, on Harris Avenue, when he did see, or ought to have seen him i-n time to stop said car before it hit him, and he did not do so, then the said motorman was guilty of negligence and the defendant is liable.”

A motorman is only required to stop his ear when he sees a person in the vicinity, if there is something that should lead a person of ordinary care and prudence to believe that faihire to stop the car would cause injury. The statement of law in the charge given would require the motorman to stop without regard to whether there was anything in the circumstances that would or should cause him to expect someone to come in the path of the car. The cause falls within the rule stated in Cincinnati Traction Co. v. Simon, 8 C. C. (N. S.), 515. This error concerns the vital issue in the ease and necessitates a new trial.

The court' was not warranted in stopping counsel in the mating of an argument which careful analysis shows was not improper; but under all the circumstances this ruling alone would not appear to have been so prejudicial as to require a reversal of the case.

We have examined the other errors assigned, but find them not well taken.

The judgment will be reversed and the cause remanded for a new trial. . i

Shohl, Hamilton and Cushing, JJ., concur.


text:
    GUARD RAILS ON THE APPROACHES TO COUNTY BRIDGES.
    Court oí Appeals for Lawrence County.
    H. L. Harrigan, Admr., v. The Board of County Commissioners in and for Lawrence County, Ohio.
    Decided, June 25, 1919.

      County Commissioners — Duty of with Reference to Providing Guard Rails — For Approaches to Certain County Bridges — Purpose of Such Rails — Province of the State Highioay Department — Liability for Accident.

    1. The principal purpose of requiring guard rails to be erected at the ends of certain county bridges and on each side of the approaches thereto, as required by Section 7563, is to warn drivers of the location of danger.
    2. -The duty enjoined on county commissioners by the provisions of such sections was not relieved by the passage of the State Highway law (105-106 O. L., p. 623-666) or any later amendment thereof.

      Johnson & Jones and Daugherty & Riggs, for plaintiff in error.

      T. A. Jenkins, Prosecuting Attorney, and Andrews & Irish, for defendant in error.
   Sayre, J.

Heard on error.

April 1G, 1917, plaintiff’s decedent lost her life by the falling of an automobile, in which she was riding, from a county bridge over Lick Creek, about five miles above Ironton, near the Ohio River. The negligence complained of was the failure of the) county commissioners to erect guard rails along the approach to and at the end of the bridge.

There were no guard rails erected on the approach to the bridge where the accident happened. One witness testified that the car ran off the approach to the bridge, but the overwhelming weight of the evidence was that it ran on the upper chord of the bridge and fell from there about eighteen or twenty feet to the bank of the stream. There was evidence tending to show that state aid was used in the improvement of the road from the floor of the bridge for a distance toward Ironton, and that it was at the date of the accident á state road and under state control, being an inter-county highway and main market road.

The trial court directed a verdict in favor of the defendant at the close of all the evidence.

There were five defenses: The first was, the accident was not caused by the lack of guard rails upon the approach to the bridge, as the car ran off the bridge and not off the approach; the second was, that if guard rails had been erected, or a hedge fence grown as provided in Section 7564, that would not have prevented the accident because of the excessive speed of the automobile; the third was, that as the State Highway Department has control and the duty to repair and' maintain the road the defendant, the board of county commissioners, is not liable; the fourth was, that the driver was intoxicated, with the assent and procurement of plaintiff’s decedent: the fifth was, defective lights, known to plaintiff’s decedent.

Section 7563 reads as follows:

“The board of county commissioners shall ercet or cause to be erected and maintained where not already done, one or more guard rails on each end of a county bridge, viaduct or culvert more than five feet high. They shall also erect or cause to be erected, where .not already done, one or more guard rails on each side of every approach to a county bridge, viaduct or culvert if the approach or embankment is more than six feet high. * * •”

Section 7564 provides:

“It shall be a sufficient compliance with the provisions of the next preceding section if the county commissioners, shall cause to be erected and maintained, a good stock-proof hedge fence where a guard rail is required. Such guard rails or hedge fence shall be erected in a substantial manner, having sufficient strength to serve a protection to life and property, the expense thereof to be paid out of the county bridge fund. ”

Section 7565 makes the county liable for injury resulting from a-failure to comply with these provisions.

The defense, that as the car- ran off or dropped off the bridge and not off the approach the county is not liable, would be complete if the sole purpose of guard rails or hedge fences was as a permanent buffer intended to hold back wagons, carriages or automobiles from going over the embankment when such vehicles come in actual contact with the guard rails or hedge fences. But it seems to us that one of the principal purposes of guard rais is to warn drivers of exact point of danger so that they may. know where to drive to avoid it, just as a lighthouse warns of danger near it. The driver in this case testified that he did not. know that he was near the bridge until he was on it, but thought that the curve was only a curve in the road. Now guard rails might have warned him of the nearness of the embankment, and with that knowledge he might have kept further to the right and avoided the injury. So we hold that the court could not say, as a matter of law, because the car fell from the upper chord of the bridge that the defendant was not liable. "Whether the accident was caused by the drunkenness of the driver, assented to and procured by plaintiff’s decedent; whether to defective lights, of which plaintiff’s decedent had knowledge, and notwithstanding continued on the journey; whether by the speed of the automobile, or by the absence of guard rails, were questions for the jury-

It is contended that since the road has come under the control of the State Highway Department the county commissioners were relieved of their duty to comply with Sections 7563 and 7564. Plowever, these sections have not been expressly repealed and if they are now superseded by the State Highway law it is because they are inconsistent with such law. The following is the last section of the act of June 5, 1915 (105-106 O. L., p. 666);

"This act shall supersede all acts and parts of acts not herein expressly repealed, which are inconsistent herewith * *

Section 7464 provides that inter-county highways and main market roads constructed by tbe state, or taken over by it, shall be maintained by the State Highway Department.

Section "7465 provides that under certain conditions county and township roads may become state roads.

Section 1178 provides:

“There shall be a state highway department for the purpose of affording instruction, assistance and co-operation in the construction, improvement, maintenance and repair of the public roads and bridges of the state * *

These sections, and others, show that the Legislature intended to create a State Highway Department and give it control over certain highways for the construction, improvement, maintenance and repair of the same. But our attention has not been called to any provision, nor have we found any, which makes it the duty ©f the State Highway Department to erect guard rails. If by the State Highway law the duty to erect guard rails had been placed on the Highway Department then there would have been an inconsistency between its provisions and the provisions of Sections 7563 and 7564, and the former would supersede the latter. But we can see no inconsistency between a law which confers authority upon the officers' of a department to construct, improve, maintain and repair certain roads and a law Which directs other, officers to erect guard rails on the approaches and ends of bridges. The Legislature may have concluded that since it was the duty ©f eounty commissioners to erect guard rails, where required, at all other bridges in the county it might remain their duty to place guard rails, where required, at bridges on roads under state control.

Besides, the Legislature may have considered, in enacting the State Highway law, that to put the duty of erecting guard rails on the State Highway Department would be virtually eliminating a right of action for injuries where one should exist, and left the duty and liability remain.

The judgment of the court of common pleas will be reversed, and the cause remanded to that court for a new trial.

Judgment reversed.

Middleton and Walters, JJ., concur.