author: By the .Court

text:
    WHEN THE QUESTION OF CONTRIBUTORY NEGLIGENCE BECOMES ONE FOR. THE COURT.
    Circuit Court for Richland County.
    J. P. Arras, Administrator, v. The B. & O. Railway.

    Decided, January, 1913.

      Negligence — Employee Pulling Truck Over Switch Track Struck by a. Freight Gar After Receiving Warning.

    The testimony indicating that the decedent had warning of his danger in time to have saved himself, the question of his contributory negligence became one for the court, and was not one to be submitted to the jury, and there was therefore no error in directing a verdict for the defendant.
    W. J. Bissman and W. S. Kerr, for plaintiff in error.

      McBride & Wolfe, contra.

      Affirmed without opinion, Arras v. B. & O. Railway Co., 89 Ohio State,

   By the .Court

(Taggart, Voorhees and Shields, JJ.).

This was an action in the court of common pleas to recover damages for the wrongful death of one Adam Arras, charged to have been caused by reason of the negligent acts of the defendant in error.

The averments of the petition are that the defendant owns, operates and controls a track leading from the main line of its road to and among the shops of the Barnes Manufacturing Co. near the city of Mansfield, in Richland county, Ohio, and that said track was so used by the defendant for the accommodation of said Barnes Manufacturing Co. in shipping its products; that said track was so located that the employees-of the manufacturing company were compelled, in the performance of their duties, to pass over said track, and for that purpose they had established a regular place for crossing the same; that said crossing has long existed and was well known to the defendant, its agents and servants ; that the time of moving cars upon said track is unfixed and is at the discretion of said company, and that the said decedent, Adam Arras, had no knowledge or notice thereof,- that the advance of the cars, by reason of the noise of the factory, can not be heard separate and apart from the other noise of the factory, all of which had a- tendency to render said track extremely dangerous; that, by reason of such dangerous condition, the defendant had caused a flagman or watchman to be -stationed at said crossing, at the time of moving cars, to give notice to the employees of said Barnes Manufacturing Co. and to notify and warn them of danger, and that the defendant relied upon such notice being given.

It further recites that on or about the first of June, 1910, the said Adam Arras was pulling a large truck along the passage way leading to and over the said crossing above specified; that the approach to said crossing was obstructed by buildings and that the crossing itself was left unguarded by defendant at that time, and no one placed by it to give warning of the approach of cars, and with no one on the front of the moving cars along said track to give warning to persons who had occasion to cross said track at said crossing; and without notice, knowledge or warning, and while exercising care on his part, and without negligence on his part, he entered on said crossing and was struck by a box car that was being pushed by an engine that was owned and controlled by the defendant and operated by the defendant, its agents and servants, and received injuries by reason of such collision which caused his death and which occurred on the day last mentioned.

The case was submitted to the jury upon the evidence of the plaintiff and at the close of plaintiff’s testimony, the court on motion directed the jury to return a verdict for said defendant. It' is this action of the- court in directing a verdict for the defendant that is complained of in the petition in error filed in this court to review the proceedings of the court of common pleas.

It is claimed by the defendant that the said Adam Arras was guilty of negligence contributing to his own injury and that by reason of such contributory negligence, the plaintiff would not be entitled to recover in this action.

The testimony discloses that, just- prior to the accident, a foundry foremán of the Barnes Manufacturing Co. passed the decedent, Adam Arras, who was then pulling a large truck towards the track of the railroad company, which truck was being pushed from behind by one Rudolph; that Rogers, the foreman, when he reached the middle of the railroad track, saw for the first time that the ears were being backed along the track from the south and towards the crossing, and immediately turned and gave warning to the decedent, throwing up his hands and saying to him ‘ ‘ Go back, ’ ’ and at the same time he almost immediately turned and stepped across the track, supposing that the decedent was in a place of safety.

The foreman further testifies that, when he was in the middle of the track, the decedent, Adam Arras, was from six to eight feet behind him when the warning was given, and that, supposing that he would protect himself and make himself safe, he himself crossed the track to the west side and the cars backed between him and the decedent and the other party who was pushing the truck. After the ear had passed about half the length of itself, he heard a crash and learned that the decedent had been struck.

The court is of the opinion, from the testimony of the witness Rogers, that the decedent had warning in sufficient time to have saved himself from collision with the moving cars; that the car was about 30 feet to the south when the warning was given, as shown by the evidence, and that he could have saved himself from injury; and that, as a matter of law, he was guilty of contributory negligence in proceeding toward the track after the warning had been received, and in coming in collision with the moving cars, by reason of which he was injured.

The court is of the opinion that whether or not the decedent was guilty of contributory negligence is not a question of fact to be submitted to the jury but is a question of law to be determined by the court; and that, for this reason, the action of the court"in sustaining a motion to direct a verdict was proper and was not error. The judgment of the court of common pleas is affirmed with exceptions.


source: Caselaw Access Project

license: Public Domain

text:
    OFFICERS OF A VILLAGE ADVANCED TO A CITY.
    Circuit Court of Summit County.
    Peter O. Wise, a Tax-Payer, on Behalf of the City of Barberton, v. City of Barberton et al.
    Decided, May, 1912.

      Municipal Corporations — Advancement of Village to City — Mayor’s Veto Power — Compensation of Couneilmen.

    1. Upon advancement of a village to a city as provided by law, village officers become city officers and the mayor, in such case, has the power of veto.-
    2. Where there is no valid ordinance fixing the compensation of councilmen, upon the induction into office of the first council elected after the advancement of a village to a city, such council can fix the compensation of its own members.

      O. D. Everliard and S. D. Kanfield, for plaintiff.

      Rogers, Rowley & Mathers and N. E. Boden, City Solicitor, contra.
    Winci-i, J.; Marvin, J., and Niman, J., concur.
   In -this case an order is prayed for to restrain the city of Bari berton from paying, and its several officials from receiving, certain salaries attempted to be provided for them by an ordinance passed by the council of the city of Barberton on the third day of January, 1912, said officers having been elected and their terms having begun previous to the passage of said ordinance.

The ease grows out of a situation developed by Barberton’s increase in population.

Barberton was a village until the census was taken in 1910; by that census it was developed that Barberton had a population of more than five thousand; that fact was later officially made known to the Secretary of State of the state of Ohio, and, on the 18th day of January, 1911, the Secretary of State issued a proclamation stating that fact. Thirty days later, to-wit, on February 17, 1911, Barberton became a city, by virtue of the last paragraph or sentence of Section 3498 of the General Code, which reads as follows:

‘ ‘ From and after thirty days after the issuance of such proclamation, each municipal corporation shall be a city or village, in accordance with the provisions of this title.”

The “title” thus referred to is Title XII, “Municipal Corporations,” which embodies the whole law upon the subject of municipal corporations, and is commonly called the municipal code. The only section of said code having reference to the transition of a village to a city is Section '3499. It reads as follows:

“Sec. 3499. Officers of a village advanced to a- city, or of a city reduced to a village, shall continue in office until succeeded by the proper officers of the new corporation at the next regular election, and the ordinances thereof not inconsistent with the laws relating to the new corporation, shall continue in force until changed or repealed.”

This meager legislation on the siibject produces difficulties and inconsistencies which can not be escaped.

Barberton became a city in February, 1911; its officers, originally elected as village officers, continued in office until January, 1912; from February, 1911, to January, 1912, were they village officers or city officers, and were their powers and duties prescribed by the statutes governing village officers or by the statutes governing city officers? The powers and duties of village and city officers are quite different.

•Since the statutes themselves do not answer the question the court is required to answer it in a manner which will produce the least confusion, and as seems most conducive to good government.

In examining the question here involved, the facts of this case alone have been considered, and it has not been deemed necessary to lay down any general rules governing all questions which might arise under the sections quoted.

The only things that are made absolutely certain by th'ese two sections are that Barberton was a city, from and after February 17, 1911, and the only officers it had until January, 1912, were the individuals who originally had been elected as village officers. December 13, 1911, the council of the city of Barber-ton, composed of the individuals who had been elected as members of the council of the village of Barberton, passed an ordinance fixing the salaries of the city officials recently elected, who would come into'office the following January.

This they had a right to do, but the mayor vetoed it, and said ordinance was never passed over his veto.

Did he have a right to veto this ordinance? If he did not it is still in force and the prayer of the petition should be granted. If the mayor had a right to veto the ordinance of December 11, 1911, a second question arises: Did the new council on January 3, 1912, have a right to fix the salaries of city officials whose terms began before said date?

The mayor of a city can veto an ordinance; the mayor of a village can not.

Though the learned Attorney-General of the state has given it as his opinion that in a situation like this the mayor would not be vested with the veto power, he does not sustain his opinion with argument, and we see no good reasons why the mayor should not have and exercise the powers of a mayor of a city. Was Barberton a city in name only, until January, 1912, or was it a city in fact? That it was a city in fact is to be deduced from language used in Section 3499 — “the ordinances thereof (of the village) not inconsistent with the laws relating to the new corporation, shall continue in force until changed or repealed.”

What is meant by the expression “laws relating to the new corporation”? It means that part of the municipal code which lays down the rules governing cities, if the new corporation is a city, as in this case.

The laws governing cities, then, apply here, and we hold that the law vesting the veto power in the mayor of a city applies and the mayor had a right to veto the ordinance of December 11, 1911, and it never went into effect, because it was not passed over his veto.

The argument ab inconveientum of counsel for plaintiff, has not impressed us. We see no difficulty in the village mayor giving up his place as president of the council and turning it over to the president pro tempore, the latter being a village officer capable of acting as president of the city council, thus relieving the mayor of any equivocal situation, growing out of his former power of deciding tie votes in the council, and also exercising his new veto power.

Now what was the situation which confronted the new officers after their terms began?

■There were several new officers; a city solieior, directors of-public safety and public service, and a city auditor; the village had never had such officers.

The mayor of a village receives a small salary and fees in state and municipal eases and certain license' fees; the mayor of a city can not receive fees in state eases. The old salary ordinance of the village of Barberton provided for the mayor’s compensation in accordance with the law regulating villages; the mayor of a city can not receive such compensation as was provided by said ordinance; said ordinance also failed to provide for the new city officers, hence said old village ordinance is “inconsistent with the laws relating to the new corporation,” and therefore it did not continue in force. (Section 3499.)

We now have the new city officers entering their terms with no salaries fixed for their compensation.

The new city council proceeded to fix their salaries on January 3, 1912, and it is the salaries thus fixed that plaintiff claims should not be paid.

He says that said ordinance contravenes Section 4213, General Code, which reads:

“The salary of any officer, clerk or employee shall not be increased or diminished during the term for which he was elected or appointed, and, except as otherwise provided in this title, all fees pertaining to any office shall be paid into the city treasury.”

This statute applies only to a case where a salary has been fixed and not where no salary has been provided.

In order to increase or decrease a salary, there must be something to increase or decrease. The Legislature can not have intended that salaries might not be provided where none had been provided before, for then there would be no way of compensating officers of newly created municipal corporations, and there would be difficulty in finding persons to fill such offices and perform the duties thereof.

This is the conclusion reached by Judge Evans, of the Franklin County Common Pleas Court, in a well-reasoned opinion citing authorities which abundantly sustain his views: State, ex rel, v. Carlisle, 3 N.P.(N.S.), 544.

That case was never carried higher, and we concur in the views there expressed.

The ordinance of January 3, 1912, fixed the compensation of eouncilmen at the same figure it had been under the village government, so that there is no question here of public policy forbidding a man fixing his own compensation, or acting as judge in his own case, as was suggested on the argument.

Nor have we here any part of the salaries to enjoin, under the Crosser act, for the ordinance was passed as an emergency measure, and we hold that it was such. Surely an emergency existed; no salaries had been provided for the city officials, and they might all refuse to act and the city government be crippled and paralyzed. This is a different situation from one involving an increase in salaries.

The petition is dismissed.


text:
    PROSECUTION FOR KEEPING A PLACE WHERE INTOXICATING LIQUORS ARE SOLD.
    Court of Appeals for Cuyahoga County.
    John A. Sanders v. State of Ohio; Jasper Post v. State of Ohio, and August Pfaff v. State of Ohio.
    Decided, March 25, 1913.

      Criminal Law — Accused Named, in the Affidavit by Ms Initials — Proof as to the Sale of Liquor on Sunday — Jury Trial Not Necessary on the Issue of Former Jeopardy Under Charge .of Unlawfully Keeping ' a Place "Where Intoxicating Liquors are Sold — Variance.
    1. Courts take judicial notice that Christian and surnames are abbreviated. Hence, in a prosecution before a mayor under General Code, 13195, for keeping a place where intoxicating liquors are sold in violation of law, the fact that accused is named in the affidavit by initials instead of his full name does not necessitate a reversal for variance under General Code, 13582, especially where no objection is made on the trial thereto and in his internal revenue certificate and state liquor tax application it appears that his name is designated by such initials.
    2. Proof of a single sale on Sunday of intoxicating liquors in a room furnished with bar fixtures, a bar tender and other indicia of a place where liquors are kept, justifies a conviction under General Code, 13195, for keeping a place where intoxicating liquors arte sold contrary to law.
    3. The inhibition of General Code, 13195, as to unlawfully keeping a place for sale of intoxicating liquors is not limited to dry territory but includes unlawfully keeping a place on Sunday.
    4. Plea of former jeopardy is properly heard and determined by a mayor under General Code, 4528, in a prosecution for unlawfully . keeping a place for sale of intoxicating liquors contrary to General Code, 13195, and, since the prosecution is for a fine only, a jury trial is not necessary.

      Geo. W. Shaw and M. Bernstein, for plaintiffs in error.

      John A. Chamberlain, David E. Green and Cyrus Locher, Prosecuting Attorney, contra.
    Jones, J.; Metcalfe, J., and Ferneding, J., concur (sitting in place of Judges Winch, Meals and Grant).

      Error to Common Pleas Court.
   Plaintiffs in error were each brought before and convicted by J. R. MaeQuigg, mayor of East Cleveland, upon affidavits based upon Section 13195, General Code, charging them with keeping a place in the adjoining city of Cleveland where intoxicating liquors were sold in violation of. law. The convictions were each affirmed by the common pleas court, and proceedings in error are here instituted to reverse the judgment of the lower courts.

The eases involve similar questions, except that in the Pfaff ease the additional claim is made that Pfaff, as shown by the record, has been once in jeopardy for the same offense before a Cleveland city justice of the peace; and that when he had demanded a jury before the East Cleveland mayor, upon a plea in bar, he was denied the same.

It is claimed in all three cases that the judgments below are against the evidence, in that the showing of a single sale could not be held to be a violation of the statute as to keeping, etc.; that the defendant, Sanders, was not shown to be the John A. Sanders who was on trial. The testimony refers to the defendant as “J. A. Sanders”; the internal revenue and state licenses were issued to “J. A. Sanders” but it is insisted that this “J. A. Sanders” was not shown to be the John A. Sanders charged in the affidavit. The record does not show that defendant made any issue of the fact on the trial, but reserved it for review only. The variance is not material. Courts will take judicial notice that Christian and surnames are abbreviated. If tried under indictment it would not appear to be prejudicial to the defendant under Section 13582, General Code. While the section is not made applicable, in terms, to procedure before magistrates, we think that no prejudice arose to the defendant which would necessitate reversal for that cause. Furthermore, no proper action was taken at the time by defendant objecting because of variance. What has been said as to Sander’s case applies as well to the Pfaff case.

Again, it is urged that proof of a single sale on a single „ day does not dignify the offense as one of keeping a place. Strictly speaking, that is true. Under the law a single sale is of itself an offense punishable as such. Where, however, a single sale is accompanied by proof evidencing the indicia of a place where liquors are kept, showing the connection wherewith a room furnished with fixtures, bartender or other evidence connecting such sale with the place, such proof in connection with a single sale may be sufficient to justify of “keeping a place,” etc. We are not convinced that there was a failure of proof in this regard, or that the judgment w'as against the evidence. in the circuit court of the fourth circuit has held, as above stated, in cases of similar character. But here appears'the additional fact that the sale in question ivas made on the first day of the week. Therefore, a showing of the place and a single sale therein, would fall within the inhibition of Section 13195, General Code. This view is supported by the case of Lynch v. State, 12 C.C.(N.S.), 330 (affirmed, without opinion, Lynch v. State, 81 Ohio St., 489).

While the sale in the foregoing case was in violation of law, as being made in dry territory, the principle is analogous where the violation of law claimed is under Section 13050, General Code.

Plaintiffs in error urge that Section 13195, General Code, applies only to the keeping of places and the violation of law in dry territory. It is somewhat difficult to follow counsel in this phase of the case, for the reason that Section 13195, General Code, was substantially as it is now, long before the local option laws were effective in this state, and in its original form applied to the entire state.

But the argument is wholly unavailing for the reason that the plain import of the section applies to any place where intoxicating liquors are sold in violation of law. Furthermore, under the local option sections of the code, Sections 13225, 13226, General Code, special provisions are made for punishment and abatement 'in eases where the places are wdthin dry territory.

The defendant below, August Pfaff, filed before the mayor of East Cleveland his plea in abatement, alleging former acquittal for the same offense before a justice of the city of Cleveland, and demanded a jury upon that issue; this the mayor refused, and himself heard the entire ease, including the issue of former acquittal. Plaintiff in error, Pfaff, relies on his right to a jury on Section 13630, General Code, found in title 2, part four of criminal procedure. Section 13630, General Code, is made applicable to criminal proceedings upon indictment and is lodged in title 2, part four.

Sections 10490 and 10491, General Code, do not apply the procedure of Section 13630, General Code, to justices’ and mayors’ procedure, as will be seen from an inspection of those sections.

Under Section 4528, General Code, the mayor has final jurisdiction in misdemeanor eases, unless the accused, is, by the Constitution, entitled to a jury trial. The offense charged under Section 13195, General Code, against the defendant was punishable by fine only. The mayor had complete and full jurisdiction to hear and determine the offense including every issue made, and including the plea of former jeopardy. Section 4528, General Code, clothes him with full final jurisdiction to “hear and determine any prosecution for a misdemeanor.” Any issue embraced within that “prosecution” may be therefore determined by him, without the intervention of a jury.

That, upon a second conviction, the defendant’s place may be abated as a nuisance and that a constitutional right to a jury trial would then accrue to him, and tha,t by force of the second, therefore, need not now be discussed, for obvious reasons. A second offense was not charged.

Upon an inspection of the record in the three cases, we are constrained to hold that no prejudicial error has been committed and the judgments of the mayor and the common pleas court will be affirmed.

Cause remanded to the mayor’s court for execution and for further proceedings according to law.


text:
    APPOINTMENT OF STREET COMMISSIONER..
    Court of Appeals for Huron County.
    State, ex rel Charles McCray, v. C. H. Burk et al.
    Decided, June 8, 1914.

      Municipal Corporations — Mayor’s Appointment of a Street Commissioner to Fill a Vacancy — Must he Confirmed by Council — Temporary Appointment Unauthorised, When.

    1. An appointment of street commissioner to fill a vacancy requires confirmation by the village council the same as an appointment for the full term as prescribed by Section 4363, General Code.
    2. An appointment of street commissioner of a village on or before the first Monday in February is limited by Section 4251, General Code, to an appointment for a full term of a year which under Section 4363, General Code, requires confirmation of the council; hence, a “temporary appointment” of one whom council refuse to confirm as street commissioner to “prevent a stoppage of public business” as prescribed by Section 4488, General Code, which applies only to civil service employees, is unauthorized and invalid.

      Wickham & Martin, for plaintiff.

      Craig & Primer and W. J. Tossell, contra.
    Richards, J.; Kinkade, J., and Chittenden, J., concur.
    Appeal from common pleas court.
   The action is one in mandamus to compel the defendants, members of the council of the village of New London and the clerk of said village, to authorize and direct the drawing of a warrant, and to draw such warrant, on the treasurer of the village to pay the relator the salary claimed to be due Him as street commissioner. The controversy turns on whether the relator was the street commissioner during the month of February, 1914, for which period he demands that an order be allowed and drawn to cover his compensation. In the court of common pleas the petition of the relator was dismissed.

It appears from the pleadings and evidence that one E. H. Hood was the street commissioner of the village, appointed by the mayor and confirmed by the council,' for the year 1913; that at the expiration of his year in the office, and withou waiting for any successor to take his place, he abandoned the duties of his office, in effect leaving a vacancy. On January 1, 1914, the mayor appointed A. B. Davis as street commissioner for one month and that appointment was confirmed by the village council, but Davis failed to give any bond to secure the performance of his' duties as such street commissioner, until February 5, 1914, although he in fact assumed to perform the duties of the office. On January 12, 1914, the mayor appointed George Reis street commissioner, which appointment the council declined to confirm. On February 2, 1914, the mayor appointed the relator, Charles McCray, as street commissioner, and the council declined to confirm his appointment. Thereupon the mayor submitted a written communication reading as folknvs:

“The council having failed without just cause to confirm my appointments for the office of street commissioner and no complaint having been offered as to the ability and efficiency of the appointees in question, I hereby appoint Charles McCray temporary street commissioner to prevent the stoppage of public business. Said appointment to terminate when the contingency has passed. (Signed) W. I. Bracy, Mayor.”

Mr. McCray executed a bond, .with sureties, on February 6, 1914, to secure the performance of his duties as street commissioner, conditioned as follows:

“Now if the said Charles McCray as such street commissioner (emergency) aforesaid shall faithfully perform the duties of his said office until the contingency caused by the failure of council of said village to confirm said appointment by mayor is removed, then the above obligation to be void. ’ ’

The controversy between the mayor and the village council arises from the construction to be placed on Section 4363, General Code, and other statutes in pari materia. The section above cited reads as follows:

“The street commissioner shall be appointed by the mayor and confirmed by council for a term of one year, and shall serve until his successor is appointed and qualified. He shall be an elector of the corporation. Vaeancies in the office of street commissioner shall be filled by the mayor' for the .unexpired term. In any village the marshal shall be eligible to appointment as street commissioner.”

Counsel-on behalf of the relator contend that by the plain reading of the statute the appointment of a street commissioner to fill a vacancy does no.t require the confirmation of the council, and it is contended by counsel for the defendants that all appointments for -street commissioner are incomplete until the same have been confirmed by the village council.

The record discloses that the street commissioner for 1913, Mr. Hood, in effect abandoned the office and thereby created a vacancy which should have been filled by appointment, the appointee to hold for the unexpired term and until his successor should be appointed and qualify. The mayor undertook to fill that vancaney by naming A. B. Davis, but this appointee failed to qualify until February 5, 1911, on which date he executed a bond in accordance with statute. He did, however, in effect, hold the office during the month of January and was at least the de fado street commissioner. By virtue of the provisions of Section 4251, General Code, it was the duty of the mayor to appoint a street commissioner between the second Monday in January and the first Monday in February, for the full term of one year. He attempted t-o perform that duty by naming the relator as street commissioner on February .2, 1914, and, on the council refusing to confirm the appointment, he then sought to name the same man as street commissioner for a -temporary period. The mayor assumed that Section 4488, General Code, authorized a temporary appointment, but that section applies only to appointments in the civil service. The only appointment which could have been made at that date would have been an appointment for the full term of one year, and such an appointment would, by plain language of Section' 4363, General Code, have required confirmation by the council.

The circuit court of the sixth circuit, sitting in Fulton county, in the case of State v. Darby, 12 C. C., 235, held that the misapprehension of the true tenure of the appointee, on the part of the mayor or others, could not abridge the term of his continuance in office. It would follow that any attempted limitation in the terms of the appointment would be ineffective and that the appointee, if he became street commissioner by virtue of the appointment of February 2, 1914, would hold for the period of one year and until his successor should be appointed and qualify.

We do not, however, rest the decision of this case on that proposition alone, but construe Section 4364, General Code, when read in connection with other parallel statutes, to require a confirmation by the village council of all appointments to the office of street commissioner, whether for a full term or a vacancy, in order to perfect the title of the appointee. It is doubtless true that a literal reading of the language of the section does not require such confirmation. Neither does it provide for the omission of such confirmátion in filling a vacancy in the office. The statute in question provides that an appointment for the full term shall be confirmed by the council, and all that the remaining portion of the section provides for is that in ease of a vacancy appointment, the appointee shall hold for the unexpired term. The section does say that the vacancy shall be filled by the mayor, but it does not say how it shall be filled, and the fair inference is that it shall be filled in the same manner as the office was filled for the full term, namely, appointment by the mayor and confirmation by the council.

To so construe this section as to allow the mayor to fill a vacancy in the office of street commissioner without the concurrence of the village council, would result in an anomaly in the statutes. By other sections of the statutes the street commissioner is under the direct control of the village council and that body has the power to determine whether he shall have assistants and this is true whether the official be an appointee .for the full term or to fill a vacancy.

An examination of the statutes shows a general legislative purpose to provide in cases where offices are to be filled by an appointment by one official and confirmation by another body, that vacancies occurring in such offices shall be filled in the same manner. An illustration may be found in the same chapter of the .statutes now under, consideration, where it is provided in Section 4359, General Code, that vacancies in the board of trustees of public affairs shall be filled by the mayor for the unexpired term, subject to confirmation by the council. Another illustration may be found as to state offices in Section 12,' General Code, in which it is provided that vacancy appointments made by the governor are to be subject to the advice and consent of the senate. Numerous other illustrations may be found in the statutes but these two will suffice.

It is allowable in case of ambiguity in a statute to examine the history of legislation on the subject and to consider the results which would follow a literal interpretation of the language used. See Slingluff v. Weaver, 66 Ohio St., 621.

If a vacancy appointment to the office of street commissioner required no confirmation by the council, then an unscrupulous mayor could easily keep one of his creatures in office despite the opposition of the council. Such an appmntee would hold under ihe statutes, until his successor should be appointed and qualify, and by refusing to make any other appointment, such appointee would continue in office indefinitely. We do not mean by this to criticize the action of any official in the present case or any person named as an appointee, for it does not appear from the record that any of them have been actuated by improper motives. What has been said was merely to illustrate the dangers that might arise if the construction contended for should be adopted.

It is not to be presumed from the language of Section 4363, General Code, that the General Assembly intended such a situation to arise. The section should rather be interpreted in the spirit suggested by Williams, C. J., speaking for the court, in the case of City of Cincinnati v. Connor, 55 Ohio St., 82, 89, in which that eminent jurist uses this language:

“It is an equally well established rule, that,the provisions of a statute are to, be construed in connection with all laws in pari materia, and especially with reference to the system of legislation of which they form a part, and so that all the provisions may, if prossible, have operation according to their.plain import. It is to be presumed that a code of statutes relating to one subject, was governed by one spirit and policy, and intended to be consistent and harmonious, in its several parts, And where, in a code or system of laws relating to a particular subject, a general policy is plainly declared, special provisions should, when possible, be given a construction which will bring them in harmony with that policy. And it is only when, after applying these rules in the endeavor to harmonize the general and particular provisions of a statute, the repugnancy of the latter to the former is clearly manifest, that the intention of the Legislature as declared in the general language of the statute is superseded.”

The statute in question in the case at bar is fairly within the terms of the language of the Supreme Court in Doyle v. Doyle, 50 Ohio St., 330, where the Supreme Court say that what is plainly implied in the language of a statute is as much a part of it as that which is expressed.

We hold that the appointment of a street commissioner to fill a vacancy requires confirmation by the village council the same as an appointment for a full term.

The petition of the relator will be dismissed.


text:
    ACTION TO ENJOIN ISSUING OF EXECUTION.
    Court of Appeals for Lucas County.
    Alfred H. Wittstein v. Wellington T. Huntsman, Clerk.
    Decided, June 2, 1913.

      Execution — Clerk of Court Can Not he Enjoined from Issuing, When— Remedy of the Defendant Ample at Law.

    Injunction against the clerk- of the court of common pleas to prevent him from issuing an execution to the sheriff of the same county, will not lie, in the absence of fraud, conspiracy or circumstances showing unfair advantage in issuing such execution, the remedy at . law by application to the court from which the execution issued, to have it set aside, being ample.

      Calkins & Storey, for plaintiff in error.

      Charles M. Milroy, Prosecuting Attorney, and Lewis E. Mallow, contra.

      Richards. J.; Kinkade, J., and Chittenden, J., concur.
    Error to common pleas court.
   In the common pleas court Wittstein brought an action against the clerk of that court to enjoin the issuing of an execution which he averred the clerk was about to issue for the purpose of collecting certain costs. The amended petition was met by a demurrer filed by Mr. Huntsman, which demurrer was sustained by the common pleas court and the plaintiff not desiring to plead further, a final judgment was entered dismissing his petition, from which judgment he prosecutes error in this court.

It appears from the averments of the amended petition that Wittstein was the owner of an interest in certain real estate in the city of Toledo, which property was involved in litigation relative to the collection of an assessment for the construction of a sidewalk and that in said litigation certain costs were taxed against him and in favor of the sheriff, witnesses and notary public, but that no personal judgment for costs was rendered.

The final judgment was rendered in that action on April 20, 1887, by.the circuit court of this county, the case having been taken to said court by appeal. It is averred, and of course admitted by the demurrer, that no execution was ever issued in said case. The plaintiff contends that by reason of the lapse of nearly thirty years without any proceedings being taken to collect costs due to the sheriff, witnesses and notary public, that no right to issue execution exists, and he asks that the clerk of courts be enjoined from taking such threatened action.

The ease has been presented to us solely for the purpose of determining the power of the clerk of courts to issue such execution, no question being made as to the propriety of the remedy by injunction. We regret that the view we take of the ease renders it not only unnecessary but unwise to undertake to determine the question sought to be made, for such a determination would be mere obiter dictum. We are clearly of the opinion that injunction is not the proper remedy. The execution which it is said is about to be issued is upon a judgment or order entered in this county and against .a party resident in this county, the execution to be directed, of course, to the sheriff of this county. Under such circumstances it is manifest that if an execution should issue, it would be entirely under the control of the courts of this county and plaintiff would have a remedy which would be entirely adequate in law by motion to direct the clerk to recall the execution. The amended petition in this case,’ of course, alleges that plaintiff has no adequate remedy at law, but the allegation is a mere conclusion and must be taken in the light of the well known principle that the officers of the court may be controlled by the court by motion on proper application made. If the amended petition contained appropriate averments of fraud or conspiracy or made a showing of an execution to be' issued to a foreign county, a different question might be presented.

We call attention to the ease of Miller v. Longacre, 26 Ohio St., 291. In that case an execution had been issued to the sheriff of Union county from the Common Pleas Court of Marion County, and even under those circumstances it was suggested that the more appropriate remedy would have been to apply to the court from which the execution issued to have the same set aside. The Supreme Court, speaking through Judge White, held that the objection that there was an adequate remedy at law came too late and for that reason, as well as for the reason that it issued from a foreign county, the remedy by injunction was sustained. The ease to which attention has just been called has been cited with approval in Darst v. Phillips, 41 Ohio St., 514, 518, and it is there said that in many cases the nature of the relief required and the necessity of additional parties may be such that an original action by injunction is indispensable. The circuit court in Cuyahoga county in the case of Krinke v. Parish, 9 C. C., 141, sustained an injunction in a proceeding somewhat similar to the case now at bar, but it appeared in that case that the petition for the injunction to stay a sale on execution was filed only three days before the sale was to take place, for which reason the remedy by motion to set aside the execution would have been inadequate. As a matter of fact the case was not in reality heard until a'considerable period of time after the date at which the sale was advertised to take place, and under such circumstances it is clear that the remedy by motion would have been no remedy at all, and that therefore injunction was properly held to be the remedy to which plaintiff was entitled. The general principle is entirely in accord with the rule as indicated that under ordinary circumstances injunction is not the appropriate remedy. See 1 Black, Judgments, Sections 361 and 362.

The only defendant in this action is the clerk of courts of this county. The issuance of the execution would be for the benefit of other persons who are claimed to be entitled to the costs. We think it improper practice to bring an action in injunction against an officer of the court under such circumstances. If an injunction would lie the proper parties defendant would not be an officer of the court but the persons at whose instance the execution is about to issue. This court will not, under such circumstances, entertain an injunction against one of its officials. If the parties interested in obtaining such an execution should be enjoined that injunction would operate upon such parties and through them upon all the officers of the court set in motion by such parties.

We call attention to the following cases: Olin v. Hungerford, 10 Ohio, 268; Allen v. Medell, 14 Ohio, 445; Howard v. Levering, S C. C., 614.

It is well said in 2 High, Injunctions, Section 1553; that it is not proper to join as defendants in such action merely ministerial officers of the court such as the clerk who issues the process or the sheriff who serves it, they having no interest in the subject-matter in controversy.

For the reasons given we think the court of common pleas committed no error in sustaining the demurrer to the amended petition and in dismissing that petition. The judgment of the court of common pleas will be affirmed.


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    CROSSINGS OF ELECTRIC AND STEAM RAILWAYS.
    Circuit Court of Huron County.
    Akron & Chicago Junction Railroad Company v. Sandusky, Norwalk & Mansfield Electric Railway Company.
    Decided, 1906.

      Railroad Crossings — Policy of the Law with Reference to — When an Overhead Crossing Will he Ordered — Apportionment Between Electric and Steam Railways of Cost of an Overhead Crossing.

    1. It is the policy of the statutes providing for the manner of one railroad crossing another to require crossing other than at grade, where practicable from an engineering point of view and reasonable as a business proposition; and where an electric road seeks to cross a steam road and an overhead crossing is, under all the circumstances, practicable and reasonable for both companies, a crossing of that character will be ordered.
    2. In apportioning the cost of an overhead crossing between an- electric railroad company and a steam railroad company, the steam company where first established, should be made to share the cost of constructing only that part of the crossing that is necessary to provide a way and support for the tracks of the crossing railroad;. the cost of ties, rails, ballast and the like must all be borne by the company crossing the older line.

      Arrel, Wilson & Harrington, R. G. Craig and W. Severance, for plaintiff.

      S. M. Young, contra.
    Parker, J.; Haynes, J., and Wildman, J., concur.
   This matter comes into this court by way of appeal. An application was made to the court of common pleas by the Akron & Chicago Junction Railroad Company, under an act (97 O. L., 548; Revised Statutes, 3333-1; General Code, 8834), entitled “An act to amend Section 1, of an act entitled 'An act to provide for one steam railroad’s crossing another steam railroad,’ passed May 10, 1902, relating to the crossing of railroads” to require that the crossing over its railroad proposed and designed by the Sandusky, Norwalk & Mansfield Electric Railway Co. should be made otherwise than at grade crossing.

From the order or judgment of the court of common pleas an appeal has been taken to this court, and we have heard the testimony of the witnesses pertaining to the reasonableness and practicability of the mode of crossing otherwise than at grade; we have also heard the arguments of counsel upon the matter and have also viewed the location of the proposed crossing.

It may be thought since we have arrived at a conclusion in the case very so.on after the arguments were closed, that we may not have given the case as full consideration as it merits; but I may state to counsel and parties interested that we have had the matter under consideration ever since the ease was opened to us and Judge Haynes and myself have had it somewhat under consideration ever since the matter was presented to us at chambers at Toledo, some time ago. We feel that we are about as well informed as to all the circumstances that should be taken into consideration as we would be if we should give the matter more extended consideration.

The railway company makes this application as the owner and operator of a steam railroad. At the point in question it has double tracks, and it appears from the testimony that it designs to have four tracks some time in the future; that the road is doing a great deal of business and that its business is rapidly increasing. Without doubt it is at the present time (saying nothing of the purpose for the future) a main trunk line, and at this point many trains are run over its road) some of them at a high rate of speed; this point lies not very near to any.village, upon a straight piece of track and a high rate of speed may be attained.

On behalf of - the company it is insisted that it would interfere materially with its traffic and with its operations if a grade crossing were established here, and that such a crossing would be likely to result in expense to it and in damage to the traveling public, both those traveling over its line of railroad and those traveling over the line of the electric-railroad. It is proposed by the electric road to cross the steam road at this point at right angles. The electric road is now constructed over a distance of about twenty-five miles and it is designed to be extended. It is said that its purpose, when it is fully constructed, when it has completed this crossing, is to run in the neighborhood of thirty cars per day. It appears that the steam railroad runs from forty to sixty trains per day over its line of road at this point.

From this brief statement of facts, it will appear that this will be a very important crossing of the railroads, and one where we think that even if the greatest precautions were observed by all the parties operating upon either line, accidents would be very likely to occur.

In applying this statute and in construing it, we feel that we should have in mind and in force the evident legislative policy of the state, as manifested not only in this statute, but in a number of other statutes upon the statute books of the state in pari materia; and it is very plain that that policy is to avoid in the future, as far as reasonable and practicable the construction of additional grade crossings, and to do away with grade crossing's that are at present in existence.

The statutes to which I refer, other than the one applicable to this case, are found in Revised Statutes, 3337-8 to 3337-17 (General Code, 8863-8873), and another statute of like character, Revised Statutes, 3337-17a to 3337-177t (General Code, 8874-8892), and the statute passed on April 25, 1904 (97 O. L., 546; Revised Statutes, 5332; General Code, 11605 et seq.), entitled "An act to provide how railroad and highway crossings may be constructed.”

Under this statute applicable to this case; it devolves upon the court to ascertain, determine and define by its decree, the mode of crossing which will inflict the least possible injury upon the rights of the company owning and operating the road which is intended to be crossed and if, "in the judgment of said court, or said judge, it is reasonable and practicable to avoid a grade crossing, it shall by-its process, prevent a crossing at grade.”

It is obvious that the mode of crossing that would be the least injurious to the company making this application would be some other mode than a grade crossing; that a grade crossing, in other words, would be the most injurious mode of crossing to that company.

It is urged, however, that it does not necessarily follow that such crossing would interfere with absolute rights of the company; that the rights of the company to that part of its road not to have it crossed, are not of that high degree, or not of that character that should receive great consideration in opposition to the project and rights of the electric railroad company; that its right, in other words, to operate its line of railway over the country, is subject to the rights of the public as represented by other public service corporations to cross over its tracks.

We agree that'the statute, in speaking of the rights of the company whose road may be crossed, has in view rights which are not absolute, but which are qualified in the-manner already suggested by counsel.

We have to consider, under the evidence, whether another mode of crossing is practicable, and as wo understand the testimony of the engineers, as an engineering proposition — as a physical question — the practicability of an overhead crossing at this point is beyond question. It may be done, and that, we think, is all that is intended by the word “practicability” in this statute. But, as we understand the statute, such a crossing is not to be required unless it is reasonable as well as practicable; so we have to consider the question of the reasonableness of such requirement.

It seems to us that the main question here is, whether as a business proposition it is reasonable to require this of the company, which has invested or which purposes to invest its money in this project. We have discussed this and we have taken into consideration in this connection the cost that would devolve upon the electric road of maintaining a grade crossing at this point.

It is clear from the evidence that the actual cost to the electric road of maintaining a grade crossing at this point would be about $500 a year, certainly not much less, and perhaps not a great deal more than that. Taking that into consideration and taking the loss of power which has been testified would result from the starting or the stopping of cars and the starting of cars again, as they are required to do at grade crossings, the delays incident to such stoppages, and to observe whether trains are coming and to wait for trains, if they happen to be coming, and the possibility — to put it no stronger — of loss resulting from accidents from collisions at crossings, we think it would be reasonable, as a business proposition, for this electric railroad company to build an overhead crossing at this point, even if the whole expense of it should fall upon the electric company. •

On the other hand, taking it from the point of view of the steam railroad, the slowing down that would be required in the operation of their trains, the breakages that would occur to wheels, as has been testified to, from the running over these frogs, the hindrances that would result when it became necessary to repair and replace the frogs, and the responsibility of the company for disastrous accidents, that would not be unlikely to occur and result in great loss to the railroad company, we think, as a business proposition, that this overhead crossing should be constructed, even though every dollar of cost should fall upon that company. Certainly then, we conclude that, if the cost is to be equitably divided so that the whole cost shall not fall upon either, as to both it is reasonable that this overhead construction should be made. Such a crossing should not be required, if the grade the electric company would be required to establish would exceed the maximum grade of the company crossing; and it is made clear by the evidence here that this would not be so; that this crossing may be made at a grade not to exceed 3 per cent. The electric railroad has grades upon its line exceeding 3 per cent. — grades that it has voluntarily established — and other grades running up to 6 per cent, and perhaps seven per cent.— at least 5 or 6 per cent. — where it is running over village streets upon grade established by the municipality. Neither should it be required, if it would result in the tracks being put below high watermark. It is clear from the evidence that that would not result here; so that we see no hindrance by the. intervention of anything provided for in the statute to the ordering of this overhead crossing. We have not discussed the matter of any other mode of crossing; that is to say, a crossing going under the steam railroad, because it seems to us that, if it is practicable at all, it is not so practicable as an overhead crossing.

The statute requires that the court shall, in its order, equitably apportion the initial expense of such construction or crossing, Avith the expense of maintenance thereof, among the parties interested.

Before coming to that, hoAvever, I should say something about another matter that is urged upon our attention, and that is, the probable results to the traveling public using the higlrvvay, the roadway being one of the principal highways of the county across this steam railroad at about the same point, also at right angles; in other words, the right-of-way of the electric railroad is immediately to the east of and parallel with the highway,- and it is said that the construction of such an embankment as Avill be required here to carry the electric road over the steam road will result in so obstructing the view of persons traveling along the public highway — obstruct their view of the railroad to the east — as that it Avill endanger them and endanger trains; and vice versa, that it will obstruct the view- of the enginemen upon trains to the east of the embankment — obstruct their view of the highway and of passengers thereon.

This is a matter Avorthy of consideration, to be taken into account, Ave think, under the head of the reasonableness of the requirement. But even then, Are think the greatest good to the greatest number, the greatest interests involved, should be considered, and that so far as the public travel along the highway is concerned, Ave do not see but that this construction may be so made as to avoid the dangers apprehended by counsel; in other Avords, that the embankment need not be carried so far toward the right-of-Avay of the steam railroad as to prevent a fair vieAv of the railroad to the east by persons along the public highway Avithin a reasonable distance of the railroad, so that if there Avere any danger to be apprehended, they might observe it before coming upon the railroad; and so that enginemen to tbe east of the embankment on trains passing westward might not have their view of the highway materially obstructed.

Our conclusion is, that an overhead construction should be required; but we are not prepared to set forth in a decree precisely what that overhead construction shall be. We think that the embankments and abutments should not be carried nearer than twenty-five feet of the right-of-way of the steam road; in other words, that there should be open spans covering the distance over the right-of-way, which is one hundred feet, and twenty-five feet beyond, on each side, which would make it one hundred and fifty feet- The central span should be sixty feet to admit of a four-track construction, if the steam railroad should so desire, so that it might be done without tearing down this construction or interfering with it. That would make necessary forty-five feet, I believe, in each of the other spans.

Just how those spans should be constructed, the weight of iron and the weight of steel, or the exact form of construction, we are not prepared to say — we are not prepared to set forth in a decree. We think that ought to be arrived at by agreement of the parties; that they ought to be able to come together upon the subject; if they are not able to do so, however, the court will take to its aid an engineer and have plans prepared, but that is an undertaking the court does not desire to enter upon, as it would be obliged to trust entirely to the judgment of engineers, and we think it would be better, if possible, to have it done by the parties interested.

We conclude, taking into consideration the advantages to resiilt to each party, their rights in the premises as public service corporations, the interest of the public and all, that the cost should be divided as provided in like cases by the statutes; that is to say, that each party should bear one-half of the expense of this construction. This, however, is not to include the cost of ties, rails or ballast, or anything of that sort, and is not to include the cost of land for supporting the embankment or damages to ..abutting landowners.' We think the electric railroad company should procure its own -right-of-way; that what-the statute contemplates here, is the cost of construction of such crossing, not the cost of the right-of-way.

Now, unless the parties can agree upon the amount of the cost' to be divided in this way, and upon the form of construction, the court will have to take to its aid, as before stated, an engineer and other competent persons to arrive at it, and then declare it. We think they should also be able to relieve the court of the burden of determining the manner or time of payment; and unless it is done by the parties the court will have to do it.

In view of the fact that the cost of maintenance will be inconsiderable — will be very light indeed, as compared with the cost of maintaining a grade crossing by the electric road — we conclude that, if the steam road, bears one-half of the initial cost, that should relieve it from any further burden with respect to this crossing; and we also conclude that the cost of this inquiry should be divided equally between the parties.

It should be understood that this decision at which we have arrived is not a settlement of the whole controversy which may arise between the parties; in other words, that it is subject to the rights of the steam railroad to deny a crossing to the electric railroad until they shall acquire their right by appropriation proceedings. The Constitution requires that an appropriation of property shall be made and that the costs assessed by a jury shall be paid, before one may enter upon the property of another; and this statute, if it undertook to do away with that provision, would be, of course, unconstitutional. But if such form of construction is made as we have described, and as we shall order, we think it proper to say now — what we may possibly be required to say some time in the future — that we can not see why the steam railroad should have more than nominal damages for the crossing.

We can not, as we understand the law, give the right for a temporary crossing; we can not give the right to any crossing; we can not give the electric railroad any light to cross overhead, underneath, or any way at all: we can only determine how they shall cross when they have acquired the right to cross.

We will hold the case open for a reasonable time to give the parties an opportunity to agree upon plans.

We think the control of the construction should be in the hands of the electric railroad company. It is their road; it will be their bridge, or their crossing.

Another matter that has occurred to us is, that it is a matter of indifference to the steam railroad what the grade of this bridge shall be, only so that the height required shall be attained. It maybe, that the electric railroad company shall prefer to make the bridge more abrupt and not have the grade 3 per cent., but have it 4 or 5 per cent. In that case there would be less cost — less cost would fall upon them and less cost would fall upon the steam railroad. That, however, will be a matter for them to consider. The court would not require them to build it at a grade exceeding the 3 per cent.

AVe shall treat this as our final judgment and we shall have the journal speak as of today. If the parties do not agree, we shall get the information required of us in the best way we can, and use it. AVe do not understand that in cases of this kind, we are required to sit in court as upon a regular trial of an ordinary. law or equity case. We might have proceeded in the ease without calling a single witness if we had chosen to do so.

The restraining order will remain in present force. The order should be modified, however, if necessary, so as to allow the electric road to proceed in condemnation.


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    CLASSIFICATION OF EMPLOYEES UNDER. THE CIVIL SERVICE.
    Court of Appeals for Hamilton County.
    State, ex rel Edward Mugavin and William S. Boyd, v. Edward S. Keefer et al, Civil Service Commissioners for the City of Cincinnati.

    Decided, October 24, 1914.

      Civil Service — Determination as to Whether a Valve-man is a Skilled or Unskilled Laborer — Status Where Unskilled Laborers Sold Over More Than Twelve Months Without Examination.

    A valve-man employed in the municipal service under the,former civil service law was in the unskilled class, and his appointment by the director of public service was legal and he became an “incumbent of the place” under the present act, and is entitled to remain in the position and to receive pay for his services, subject to his successfully passing a non-competitive examination when called upon to do so by the commission.

      Nelson & Hickenlooper, for plaintiffs in error.

      Walter M. Schoenle, City Solicitor, and Chas. A. Groom, Assistant City Solicitor, contra.
    Jones, E. H., J.; Jones, O. B., J., concurs: Swing, P. J., not sitting.

      Reversing State, ex rel Mugavin, v. Keefer et al, 12 O. L. R., 204.

   This is an action which involves the construction of the so-called civil service act passed by the Eightieth General Assembly of the state of Ohio and found in Volume 103 of the Ohio Laws at page 698. The action is one for mandamus, the prayer' being, in effect, that the defendant civil service commission for the city of Cincinnati be required by the court to certify to the payroll containing the names of relators, under Section 21 of said act.

The facts with regard to the two relators are not identical. It is conceded that the recent decision of this court in the case of Keefer et al, Civil Service Commissioners, v. State of Ohio, ex rel Fitzgerald, ante, disposes of the questions raised on behalf of the relator, William S. Boyd. We find, from an examination of the record, that such is the case, and a peremptory writ will issue in favor of Mr. Boyd on the authority of the case above referred to.

Edward Mugavin was appointed, or employed, by the director of public service as a valve-man, under a former civil service law which was repealed by the enactment of the present law. Under the former law “unskilled laborers” were not in the classified service. The rules, adopted by the civil service commission under that law classed valve-men as unskilled laborers and not falling within the provisions' of the civil service act. It is contended that this classification .is incorrect and that the duties of valve-men are such as to require skill and experience, and that valve-men should be classified and are not within the purview of the word “unskilled.” It is further contended that if this view is correct, then the director of public service had no authority to appoint Mugavin to the position or place which he fills.

With this contention we can not agree. There is no dispute between counsel as to the duties of valve-men and as to the na-' ture of the work which they are required to perform. Upon the agreed statement, in argument, or what these duties are, we are clearly of the opinion that the labor is such as is designated as “unskilled” by the civil service act in force at the time of Mugavin’s appointment, said work requiring no special training, practical experience, or apprenticeship. Having reached this conclusion, it follows that his selection or appointment by the director of public service was legal, and that at the time of the taking effect of the act under consideration he was an “incumbent of the place” under the'meaning of Section 10 of said act.

It is further contended that even if such be the case he is not now entitled to hold the position or to any compensation for labor 'performed in such position, since the 8th day of August of this year, for the reason that on said date the twelve months period within which he would be subject to a non-competitive examination had passed, and no examination has been taken by him. In this- connection it is conceded that no such examination has been held by the civil service commission. It does not appear why this apparently liberal time has been allowed to pass without an examination but there is no intimation, nor indeed can there be any, that Mugavin or any other employee of the city is responsible for this delay.

We believe that the reasonable construction of the last paragraph of Section 10, which contains this limitation of twelve months, is to hold that should the commission for any reason delay the non-competitive examination beyond the time prescribed, it must be held at the earliest time practicable, and that until such time the employees holding over as incumbents of “offices or places” at the time of the taking effect of the act, would continue to hold their places. If the examination is unreasonably or unnecessarily delayed by the commission, the proper remedy would be to proceed against the members in the way provided by statute for compelling officers to perform the duties imposed upon them by law.

Under the undisputed facts in this case as disclosed by the record, we find that the law supports the claim made by counsel for Mugavin, and that he is entitled to remain in his position and receive pay for services rendered, subject to his successfully passing a non-competitive examination when called upon to do so by the commission.

The judgment will be reversed, and judgment given here for both of the relators, plaintiffs in error. Writ of mandamus to issue.


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    DISCRIMINATION BETWEEN SHIPPERS IN THE MATTER. OF SIDE-TRACKS.
    Circuit Court of Franklin County.
    Quinn Coal Co. v. Hocking Valley Railway.
    Decided, January Term, 1905.

      Railvjays — Equal Facilities Must he Furnished All Shippers — Discrimination — Injunction.
    Where a railroad company, operating as a common carrier of freight, adopts as a part of its business policy any advantageous facility for handling its freight, such as laying side-tracks and making switch connection for coal shippers whose mines are located along its line of road, it must not discriminate between different shippers with respect to such facility, but must afford it equally to all; and injunction will lie to prevent such discrimination, and to compel an equal service to all.

      M. B. Earnhart, for plaintiff.

      J. n. Hoyt, Doyle & Lewis and C. D. Hunter, contra.
    Dustin, J.; Sullivan, J., and Wilson, J., concur.
   Plaintiff commenced its action by filing the following petition, to-wit:

‘ ‘ The said plaintiff is a partnership formed for the purpose of doing business in the state of Ohio under the name of the Quinn Coal Company, and is engaged in the business of mining and selling and shipping coal, and in pursuance of its purpose and business has purchased and now owns in Wilkesville township, Vinton county, state of Ohio, a tract of 150 acres of coal lands underlaid with two veins of four and one-half foot coal, the said lands lying along and adjacent to the said defendant’s main line of railway and right-of-way in said township, and upon the west side of said right-of-way.
“The said defendant is a corporation duly organized under the laws of the state of Ohio and as a railway corporation, for the purpose of operating a railway, and is so operating a railway, and moving freights between the city of Toledo, a municipal corporation of said state and the village of Pomeroy, a village of said state, its right-of-way and transportation of freights and passengers extending across said state and through, said township and county, defendant being a common carrier of freight and passengers for hire over its said line and connected with, and transporting its freight and passengers over other railway lines.
“The said defendant along its right-of-way, and adjacent to said plaintiff’s land, has constructed, and now maintains and operates, a side track or spur track, west of its main track, of the length of about 150 feet and said side track is used by the general public for the transportation of coal, lumber or other materials or products, and is now so used, the'said main track and spur or side track along said plaintiff’s premises running northward and southward, but the grounds of said company and those west of and adjacent to said side track are so raised and elevated that not to exceed two ears can be loaded at one and the same time, and said side track opens or is connected with the main track at a point east and opposite the plaintiff’s lands, the said lands not extending but some few feet north of said point where said side track connects with said main track, the said side track connecting with the main track at its south terminus opposite the plaintiff’s lands and extending ■ northward about 150 feet.
“Said plaintiff has opened said lands and mines at a point almost immediately west of said connection of main and side track and is able to ship two or more ears a day from said mine and is desirous of so doing, and has contracts with a firm called Maynard Bros, of Columbus, Ohio, on the line of said railway, and the Columbus Railway & Light Company requiring the shipment over said line of from one to two cars daily.
“The plaintiff says that said side track can be extended southward 200 feet upon said plaintiff’s lands or said defendants' right-of-way without any injury to or interference with said main track or other property of said company.
“The plaintiff says it has opened its mine and has prepared for a tipple for the coal mined therefrom at a point about one hundred feet south of the south end of said side track, at which point by the aid and use of the tipple it can, without loss or danger or injury to said defendant’s right-of-way or main track, load and transport its said cars.
“The plaintiff says by the said side track as now used by the defendant it is compelled in mining and transporting its coal to load the same in wagons, haul the same to said siding, and then load the same into the cars of said defendant company, and is often hindered and delayed in this by reasons of others, persons, firms' and corporations, using said side track.
“The plaintiff says there are many mines along said defendant’s right-of-way and that thousands of tons of coal are shipped therefrom; that the defendant company has placed sidings and tracks for their mines or their owner for the use of the coal operators, in shipping coal, these mines having lines, or side tracks, used only by the coal operators owning mines adjacent thereto, and these various coal operators having tipples from which to unload their coal into the ears of the defendant company, the company setting in its cars and receiving the coal from these side tracks and tipples.
“The plaintiff says that by reason of the hauling by wagons its said coal, said present short track and said raised land, and by reason of each of said facts, the expense of hauling its coal is very great. The plaintiff says that the unloading from tipples into ears is the common and well known method pursued by said company for its coal traffic and is safer, easier, less expensive and more expeditious and the said siding or side track as now permitted and used, does not give equal or reasonable facilities for loading coal, and is an unjust discrimination against plaintiff.
‘ ‘ The plaintiff has requested said defendant to extend its. said side track southward 200 feet and agreed to build, construct and maintain the same at its own expense but subject to the control, supervision and requirements of said defendant, the plaintiff under like supervision to make all required connections with said main track without increased danger or connections with said main track and to pay all costs, but said defendant refuses so to do or to permit the plaintiff so to do.
“The plaintiff says the defendant is the only railway by which it can transport its coal, and that it is denied the proper facilities for shipping its coal or those granted and extended-by said defendant to the other- coal operators similarly situated along said right-of-way, and if said side track was. extended and said connections made with said main track at the north end of said track as now located the cars could be more readily moved, as the grade is southward in slope, and if said extension was also made the plaintiff would be given facilities to operate its said mine, and similar or equal facilities given to the other coal operators upon the line of the defendant’s railroad.
“Plaintiff says if the said facilities are not given, it is delayed, hindered and deprived of the proper use of its said property, and it suffers great and irreparable injury thereby, that can not be properly measured in any action at law.
“Wherefore, the said plaintiff prays said defendant by the orders and judgment of this court extend its said side track, and keep or make the proper connections with its main track; that it be required not to discriminate in the condition of loading.
“That said plaintiff be allowed to load its cars from a tipple or other safe, usual or convenient mode upon said side track so extended, and for such other order in the premises as will prevent hindrances, delays and discriminations that are exercised against this plaintiff and not against said other coal operators, and other proper relief.”

A demurrer to the petition is filed, based upon the grounds that it does not state a cause of action against defendant, or that if it does, plaintiff has an adequate remedy at law.

The demurrer to this petition will be overruled, on the authority of Johnson Coal Min. Co. v. Railway, 1 N.P.(N.S.), 385.


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    APPROPRIATION FOR. HIGH SCHOOLS BY TOWNSHIP BOARDS.
    Circuit Court of Hamilton County.
    State, ex rel North Bond Village School District, v. Mt. Nebo Special School District et al.

    Decided, February 5, 1907.

      Schools — Township Board May he Compelled to Make Appropriation for High School — Limit of School Levy.

    1. A township board of education may, under Section 4009-15, Revised Statutes, which provides for the establishment and maintenance of joint township high schools, be compelled to appropriate its proportionate share of expense of the maintenance of such school from the tuition or contingent fund provided for by such section; but it can not be compelled to make the appropriation from a levy made for a subsequent year.
    2. The levy, under Section 3959, Revised Statutes, for all school purposes, is limited to twelve mills, and if the estimate and certificate of the board of education is insufficient the remedy is by application to the county commissioners under Section 3969.

      Louis A. Ireton, W. R. Collins, W. M. Schoenle and G. T. Poor, for plaintiff.

      H. J. Buntin, contra.
    Gifeen, J.; Swing, J., and Jelke, J., concur.

       Affirmed by the Supreme Court without opinion, State, ex rel, v. Mt. Nebo Special School District, 76 Ohio State, 637.

   We find no constitutional or other infirmity in Section 4009-15, Revised Statutes, which provides that:

“The funds for the maintenance and support of such high school be provided by appropriation from the tuition or contingent funds; or both, of each district, in propertion to the total valuation of property in the respective districts, the same to be placed in a separate fund in the treasury of the board of education having control of the school * * * but only for the purposes of maintaining said school.”

Hence it was the duty of the board of education of the defendant school district, if it had sufficient' funds in the treasury during the year ending September, 1906, to appropriate from the tuition or contingent funds, or both, its proportionate share for the maintenance of such school; but it can not be compelled to appropriate the same from funds derived from the levy made for subsequent year, unless it can be done without impairing the general school fund or the efficiency of the common schools.

The levy for all school purposes is limited by Section 3959, Revised Statutes, to twelve mills on the dollar of valuation of taxable property of district, and if the board of education failed to estimate and certify a sufficient amount within the limit, the remedy was an application to the county commissioners under Section 3969, Revised Statutes.

Upon the facts in this case, we think the relator not entitled to a writ of mandamus, and the petition will'be dismissed.


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    WHERE A LOSS MUST FALL UPON ONE OF TWO INNOCENT PARTIES.
    Court of Appeals for Hamilton County.
    Thomas L. Evans v. James P. Vaughan et al.
    Decided, March 4, 1914.

      Promissory Rote — Made Payable at an Attorney’s Office — Is Paid to the Attorney Who Absconds — Maher and Payee both Innocent of Intentional Wrong — Determination as to Whose Carelessness was Responsible for the Loss — Agency—Evidence.
    1. Where a promissory note is made payable at the office of an attorney and the maker and payee never meet but the amount of the loan was handed to the maker by the attorney in question, and for several years the maker paid interest on the note to the attorney and finally paid the principal upon the promise of the attorney to send him the canceled note, which was not done but the attorney thereafter absconded, a finding by a jury under proper instructions that a,s between the two innocent parties the carelessness of the payee was responsible for the loss will not be disturbed by a reviewing court.
    2. In such a case it is not error to exclude the answer of the payee as to whether he authorized the said attorney to collect the principal of the note.

      Overbeck, Kattenhorn & Park, for plaintiff in error.
    G. C. Wilson, contra.
    Jones, E. H., J.; Jones, O. B., J., concurs; Swing, J., dissents.
   The action in the court below was upon a note for $700 secured by a mortgage. The following is a copy of the note sued upon:

“$700.00. Cincinnati, O., March 21st, 1905.
‘ ‘ Two years after date I promise to pay to the order of T. L. Evans, seven hundred dollars. Payable at the law office of J. E. Humphreys, Cin. O., value received with interest at 6 per cent, per annum payable semi-annually. Privilege given to pay all at end of one year. (Signed) James P. Vaughan.”

The endorsements on this note showed payment of interest to September 21, 1910. The plaintiff asked judgment below for the principal and interest from September 21, 1910, and also asked for foreclosure of the mortgage given to secure the payment of this note.

Defendant James P. Vaughan in his answer pleaded payment. The evidence showed that he had paid the semi-annual installments of interest as they became due, to September 21, 1910, at the office of J. E. Humphreys; that he had also paid upon the principal the sum of $300 at the law office of J. E. Humphreys in Cincinnati, Ohio, on September 21, 1909, and paid the installments of interest as they became due upon the remainder of the principal; and that on November 10,1910, he paid at the law office of J. E. Humphreys the sum of $400 balance due on principal and also $3 as interest, which, as he alleged, was all that was then due upon the note.

It is not contended by Mr. Vaughan that upon any of these occasions when he called at Mr. Humphreys’ office to pay interest or principal, he saw the note. On the other hand, Mr. Evans, the payee of the note, testified that the note and mortgage were in his possession during all of this time. Mr. Vaughan says that on November 10, upon which date, as he thought, said note was fully paid, John E. Humphreys promised him to return properly canceled the note and mortgage. This Humphreys never did, The evidence shows that shortly thereafter' he absconded, having-failed to account to Mr. Evans for either the $300 or thé $400 which were paid -by Mr. Vaughan upon the principal. The evidence shows, however, that all the installments of interést, with the exception of the $3 paid on November 10, 1910, were remitted to Mr. Evans by Mr. Humphreys, and that after the payment of the $300 above referred to he continued to send remittances for interest the same as if said $300 had not been paid, when in fact he was receiving, after such payment, interest upon only $400 semi-annually. In other words, instead of paying the sum of $12 as interest to Mr. Evans after September 21, 1909, which sum was the amount actually received by him, he sent to Mr. Evans the sum of $21 as each installment of interest became due and payable, obviously for the purpose of concealing from Mr..Evans the fact that he had ever received the payment upon the principal.

The action below was one for a personal judgment, and was tried by a jury. The question presented by the pleadings and the evidence ivas, which of two innocent persons should suffer by reason of the defalcation or embezzlement of this money by Humphreys.

The court charged the jury properly, as we think, in a special charge, as follows:

“If you find that both this plaintiff and defendant are innocent of any intentional wrong, but that the loss in question in this case must fall upon one of them, then I charge you that the one of them whose carelessness Avas responsible for the loss, must suffer the loss, if you find there was such carelessness. ’ ’

The jury having found in favor of the defendants, it is but reasonable to conclude that under the charge of the court to the jury they found that the plaintiff had been guilty of carelessness, Avhich carelessness had induced the defendant Vaughan to make the payments to Humphreys upon the note. Unless this finding is clearly against the manifest weight of the evidence and in the absence of any error in the charge of the court or in .the admission or the rejection of material evidence, it follows that the verdict of the jury can not be questioned. The issue presented by the pleadings and submitted to the jury was one of fact to be determined solely by the jury on the evidence in the ease.

We have read the record in the case very carefully in order to satisfy ourselves as to the evidence and the' weight thereof as touching the respective claims of the parties. We can not, say, after this examination, that the verdict of the jury is wrong.

It is contended by counsel for plaintiff in error that the question as to the position occupied by Humphreys in this transaction, viz., whether in receiving the sums paid upon the principal of the note he acted as the agent of Evans or as the agent of Vaughan, Avas one of law and should have been determined by the court. With this contention we can not agree. The action being primarily one for a money judgment is triable to a jury. The jury was entitled to hear all the evidenee material to the issue, and all that would in any way enable them to decide whether or not the defendant had paid the note as claimed in his defense. It became a question, therefore, whether Mr. Vaughan had merely taken his money to Mr. Humphreys’ office and left it there in the custody of Mr. Plumphreys with the request, express or implied, that it should be applied in payment of the Evans note, or whether he had paid it to Mr. Humphreys, warranted in believing from all the circumstances that he represented Mr. Evans as agent in the transaction and as such was authorized by Evans to receive the principal and interest.

The facts in the ease in addition to those above stated are that although this note ran more than three years after it became due, the -payee and holder thereof made no demand upon Mr. Vaughan at any time for the payment of the note and, so far as the evidence discloses, gave the matter no attention whatever. Mr. Vaughan and Mr. Evans had never, seen each other before the trial of this ease in the court below. The note stated on its face that it was to be paid “at the office of J. E. Humphreys, Cincinnati, Ohio.” Vaughan was ignorant and-unaccustomed to business affairs. The law is well settled that to make a note payable at a bank does not authorize the maker to pay the note at such bank and discharge him therefrom upon doing so, unless the bank -at the time of payment has the note in its possession. Nearly all blank forms of promissory notes are printed so as to be made payable at some bank or financial institution, and little attention is usually given by parties to a transaction to the provisions of the note in this respect.

It seems to us to make a somewhat different situation where as in this case the words are inserted in the note making it payable at the private office of an attorney at law. This alone might not be important, but when it is borne in mind that the evidence in this case shows that Mr. Vaughan had never seen Mr. Evans; that Mr. Humphreys through an agent, Mr. Morton, was the one to whom he had applied for the loan; that the money was paid over to him by Mr. Humphreys; that he handed his note and mortgage to Mr. Humphreys who filed the latter for record; that he paid the interest for five years to Humphreys with the knowledge and without any protest from Evans; and, although the note was over-three years past due when it was paid, which fact usually brings some protest or notice from the payee that he never received any notice, all these circumstances combine to induce a man such as Vaughan to look upon Humphreys as the agent of Evans for all purposes of the transaction.

Cases have been cited by both sides, and c'ounsel for plaintiff in error rely upon the case of Antioch College v. Carroll, 25 W. L. 13., 289, decided by Judge Taft. That case ivas tried to the court without the intervention of a jury, it being an equitable proceeding. It is needless to say that none of the cases presented by either side present- the same state of facts as we find here. Such being the case, we should not be justified in discrediting the verdict of the jury in the case at bar, for the reason that it does not coincide with the views expressed in another ease, where the facts are not identical, however able and distinguished might be the jurist who announced the opinion.

Some alleged errors are pointed out in the brief for plaintiff in error in the admission and rejection of evidence. One of these objections touches a vital spot in this case, and for that reason we shall refer to it briefly here. On page 48' of the bill of exceptions plaintiff Avas asked this question:

“ Q. I will ask you whether you at any time authorized Mr. Humphreys to collect the principal of the note made by James P. Vaughan to your order in controversy in this case ? ’ ’

An objection to this question was sustained and the ruling was excepted to. The court, very properly stated, in passing upon this objection, that it Avas “Avhat AA'as said and done” that should be inquired into. The question, in the form in which it Avas presented, asked the Avitness to give his conclusions.

In order to bind Mr. Evans in this case by the payment to Humphreys it was not necessary that any express authority be shoAvn as having been given by him to Humphreys, but authority might be implied from the acts of the parties. Such being the case, the court properly refused to oIIoav the question to be answered.

This ruling upon the evidence involves in its legal aspect the question raised by an objection to the general charge of the court. The court charged the jury, in part, as found on page 57, as follows:

“Now an agent may be one who has authority to collect money, actual authority to collect or ostensible authority to collect it. Now ostensible authority to collect money is shown by the intentional acts between two parties, or by the want of ordinary care, causing the loss to a third person, and that would be Mr. Vaughan in this case, to believe Mr. Plumphreys had a right to collect this money on this note and mortgage. If you find from a preponderance of the evidence, Mr. Evans either actually or ostensibly permitted Mr. Humphreys to act as his agent in collecting this money, that he did this intentionally or by want of ordinary care, or by his own negligence led Mr. Vaughan to believe and .have reason to believe that Mr. Humphreys was his agent to collect the money, then Mr. Evans can not recover and your verdict will be for defendant.”

The law is correctly, though somewhat imperfectly, stated in this portion of the charge. It is manifest, therefore, that the court below having in mind the principle here enunciated refused to pérmit Mr. Evans to answer the question above quoted as to whether he had ever authorized Mr. Plumphreys to collect the principal sum of the note.

We think there was no error to the prejudice of the plaintiff in error here in any of the matters complained of in counsel’s brief.

The jury, under proper instructions from the court found that Mr. Vaughan in paying the money to Plumphreys regarded Mr. Plumphreys as the agent of the payee and as fully authorized to receive the money.

We think it was only natural Eor a man of Vaughan’s inexperience to be induced so as to believe and so to look upon Mr. Plumphreys, from all the facts'and circumstances in this case, and from the conduct of Mr. Evans himself. His silence for five years, and especially for the last three years when the note was overdue, would naturally tend to make Vaughan believe that the entire matter was in the hands, of Mr. Humphreys with whom alone he had transacted the business so far.

We do not say that Vaughan was free from any carelessness and negligence. It was his duty as a careful man to have held the payment of the principal of the n<?te until credit was given thereon in his presence or until when final payment was made the note was surrendered to him, but it seems that the implicit confidence which Mr. Evans placed in Mr. Humphreys, who was a stranger to Vaughan, inspired a feeling of .security and confidence in the latter.

The jury must have found, as before stated, that of the two innocent parties the negligence of Evans more directly contributed to the loss, and that therefore under the well settled doctrine of law he must be made to suffer.

Judgment affirmed.

Swing, J.,

dissenting.

There is no evidence in the case that shows that Evans ever constituted Humphreys his agent to receive payment of this note, and there is no evidence that tends to show that Evans in any ivay represented to Vaughan that he was so authorized, and the judgment therefore is not sustained by the evidence.


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    A CLAIM OF AGENCY NOT INVOLVED IN A REPRESENTATION. AS TO BACKING.
    Circuit Court of Morrow County.
    Citizen’s Bank of Cardington v. David High.
    Decided, June 25, 1903.

      Sales — Representations that Banlc is Baching a Purchaser, Rot a Representation of Agency.

    Representation by a dealer that a certain bank is backing him m the purchase of hay is not equivalent to-a representation that he is purchasing for the bank, and one who 'has sold him hay and taken his check in payment, can not upon the dishonor of the check, hold the bank as principal, merely because the dealer, when he shipped the hay, stated in the bill of lading that it was to the order of the bank and drew upon the consignee of the hay to the order of the bank for the purpose of securing his account with it.
    Winch, J. (sitting in place of Donahue, J.); Vooriiees, J., and McCarthy, J., concur.
   David High brought this action against the Citizen’s Bank of Cardington, a corporation under the banking laws of Ohio, alleging that the bank was indebted to him in the sum of $117.17 for hay sold and delivered to it. The answer was a general denial.

Verdict and judgment being for the plaintiff below, the bank has filed its petition in error, urging that the judgment is against the law and the evidence of the ease.

It appears from the bill of exceptions that in June, 1898, one John H. Pringle bought the hay in controversy from David High, who says that Pringle represented to him that he was backed in the hay business by the Citizen’s Bank.

High says that Pringle virtually represented himself as an agent for the bank in the purchase of the hay, but Pringle denies this. The hay was delivered hv High to Pringle at Ashley, Ohio, and pit aboard the cars there for shipment to Cincinnati. Pringle gave High his check on the Citizen’s Bank, but it was never paid. High says the cashier of the bank afterwards practically told him that the bank had bought the hay, but the cashier denies this.

It appears that the railroad company, upon receiving the hay, delivered to Pringle its bill of lading, reciting among other things:

“Ashley, Ohio, June 17th, 189.8. Received from J, H. Pringle by the Cleveland, Cincinnati, Chicago & St. Louis Ry. Co.” And the property is described below under “Description of Articles : one car baled hay, 20,000 lbs. Car, C. C. C. & St. L. 93, 117. Notify the Union Grain and Hay Co., Cincinnati, Ohio. Order, Citizen’s Bank, Cardington, Ohio.”

Pringle took the bill of lading and attached to it his draft as follows:

“Cardington, Ohio, June 17, 1901. At sight. Pay to the order of the Citizen’s Bank, seventy-five dollars. Value received and charge to account of J. H. Pringle. To Union Grain and Hay Co., Cincinnati, Ohio.”

There were several bills of lading and several drafts, but all are alike. Pringle delivered the bill of lading with the draft attached to the bank, which credited the amount of the draft to Pringle, with the understanding that his account was not to be checked against until the draft was paid.

The draft with bill of lading attached was sent by the bank for collection to its correspondent at Cincinnati, but the same was not paid. This is the reason the bank assigns for not paying Pringle’s eheck to High.

To us this transaction, so far as the bank is concerned, appears to be a straight banking matter. It does not appear that the bank was buying and selling hay.

This delivery to it of the bill of lading did not amount to a constructive delivery to it of a consignment of hay. The bill of lading was attached to the draft as a direction and authority to the consignee of the hay at Cincinnati to pay the bank; and notice to the consignee that it should pay no one else but the bank. The words, “Order Citizen’s Bank, Cardington, Ohio,” directed the railroad company to respect any orders of the bank concerning the hay; and this because the bank was backing Pringle in business and desired to be sure of his. honesty and fair dealing.

But backing another man in his business does not mean constituting him your agent for business that you are carrying on for yourself. To give this construction to the bank’s part in the transaction is to harmonize it with its powers as a bank and the common transaction of banks with drafts.

We do not think that the case of Hamet v. Letcher, 37 Ohio State, page 355, furnishes any rule to be followed in this case.

In the Hamet case one Jacob O. Rhoner, representing himself as agent of O. T. Letcher & Co., buyers and shippers of hogs, bought hogs of Iiamet, a fanner; and took the hogs to Lateher & Co., and sold them to said firm as his own and got the money for them. When Ilamet applied to the firm for his pay he was told that they had paid Rhoner.

The farmer knew that Letcher & Co. were in the hog business and that is what distinguishes that case from this.

In the case High knew that an incorporated bank can not buy and sell hay. It is ultra vires for it to do so and he had no right to rely upon any statements Pringle may have made him, that he was agent for the bank.

Again, after the transaction, he had no rights against the bank growing out of any representations its cashier might have made to him as to the bank’s being in the hay business. Any such representations, if they were made by the cashier, would not bind the bank. An agent of a corporation can not bind it to contracts beyond the powers of the corporation to make. Corporations act through their boards of directors; and no officer can bind a bank on a hay contract, such contract being clearly -beyond the powers of the bank to enter into, as High knew, or should have known, before he sold the hay to Pringle. We find the judgment is against the law and evidence, and it is therefore reversed.