author: PARKER, J. WILDMAN, J. HAYNES, J.

text:
    TAXATION.
    [Lucas (6th) Circuit Court,
    November 7, 1906.]
    Haynes, Parker and Wildman, JJ.
    National Land & Invest. Co. v. David T. Davies, Jr., Aud., et al.
    1. Rules Governing Boabds oe Review.
    The rules governing the present boards of review are those formerly governing decennial boards of equalization, as found in Rev. Stat. 2814 (Lan. 4226).
    2. Values at Time oe Decennial Appraisement Contbol Revaluations.
    In equalizing values and correcting errors made by the decennial appraisers, a board of review must at all time be guided and controlled by values as they existed at the time of making the decennial appraisement, and not by values as at present existing.
    [For other cases in point, see 7 Cyc. Dig., “Taxation,” §§ 726-730. — Ed.]
    3. Complaint PREREQUISITE to Revaluation to be Made by Taxpayer or Party ■ in Interest.
    The complaint mentioned in the statute as a prerequisite to a revaluation by a board of review must be a substantial complaint made by a taxpayer or party in interest, and coming to the board of review, and not • instituted by it or by its direction.
    [Syllabus by the court.]
    INJUNCTION.
    L. W. Storey, F. E. Calkins, Seney & Thurstin and W. S. Thurstin, for plaintiffs:
    2 Cited and commented upon the following authorities: Revised Statutes 2792, 2804, 2805, 2805f, 2813, 2814a, 2814-3, 2814-8, 2815, 2819-1 (Lan. 4172, 4190, 4193, 4201, 4220, 4227, 4231, 4236, 4239, 4245) ; Gaylord v. Hubbard, 56 Ohio St. 25 [46 N. E. Rep. 66]; Exchange Bank v. Hines,-3 Ohio St. 1; Scarborough v. Gibson, 13 Dec. 738; State v. Morris, 63 Ohio St. 496 [59 N. E. Rep. 226] ; Britton v. Baker, 12 Dec. 107; Ransom v. Potter, 12 Circ. Dee. 478 (22 R. 388) ; Toledo Commercial Go. v. Manufachiring Co. 55 Ohio St. 217 [45 N. E. Rep. 197]; Cincinnati v. Gnckenberger, 60 Ohio St. 353 [54 N. E. Rep. 376] ; Cincinnati v. Connor, 55 Ohio St. 82 [44 N. E. Rep. 582] ; Fratz v. Mueller, 35 Ohio St. 397; McCormick Harvesting Mach. Co. v. Sims, 14 Dec. 15; Hagerty v. Huddleston, 60 Ohio St. 149 [53 N. E. Rep. 960] ; Gray, Limitation of Taxing Power Sec. 1460; Wagonei v. Loomis, 37 Ohio St. 571; German Nat. Bank v. Kimball, 103 U. S. 732 [26 L. Ed. 469].
    Ulrey, Martin & Webster, for defendants.
   PARKER, J.

This is an action to enjoin the officers, whose duty it is to collect taxes, from collecting taxes in accordance with certain valuations placed upon certain properties by the municipal board of review for this city, in pursuance of Rev. Stat. 2819-1 (Lan. 4245).

We had expected that the opinion would be delivered by Judge Wildman, but after considering the matter for some time, the judge is in so much doubt about the correctness of the conclusions that have been reached by Judge Haynes and myself that he prefers not to deliver the opinion. And, just being apprised of this, I am not well prepared to deliver an opinion. We have considered the questions presented by this record very carefully; they involve the construction of a large number of the sections of the statutes on the subjects of the valuation of real estate for taxation, and the functions of various boards that have to do with the changing of values. All of such boards theretofore existing in this municipality, or having to do with the valuation of property here, have been superseded in their functions by this board of review. The statute does not seem to us to confer any new powers upon this board of review, but seems tó confer upon it powers theretofore existing and vested in other boards. This board, proceeding in pursuance of this statute has, according to the allegations of the petition, ignored the valuations placed upon, the properties by the decennial appraisers and the decennial board of equalization ; that is to say, it has not considered those valuations as, in any respect, binding upon it, where it has found that the values have changed since such appraisement and equálization were made.

The important question, as we understand it, in this case is, whether this board of review, in performing its duties, may take into consideration such changes and fluctuations of value in the real estate of the city as have occurred since the time of the decennial appraisement.

Having laid aside the authorities that we have considered, and allowed them to pass out of my mind, so that I cannot readily refer to them and can only give the impression the reading of them made, I am only prepared to state our conclusions in a very general way.

Our conclusion is, that this board is governed by the rules governing decennial boards of equalization, found in Rev. Stat. 2814 (Lan. 4226), and the construction of those rules brings us to the conclusion that the board of equalization must review, equalize and correct errors in the returns made by the decennial appraisers, and must all the time have in view and be guided and controlled by the values as they existed at the time of the decennial appraisement; that the intention and purpose of the statute is to give some stability to the decennial ap-praisements ; that the general scheme and policy of the law is to require the appraisement of real estate once in ten years, — decennial periods,— according to the values of such real estate at the time; and that, thereafter, during the decennial period, no change is to be made in the ap-praisement, because of any fluctuations in value, except in special cases of structures destroyed, or new structures erected, or where new property is brought upon the duplicate, which by some error has been omitted; that all corrections, all equalizations are to be based upon the values at the time of the decennial appraisement. Real estate is to be appraised once in ten years, personal property every year; and that there is no more authority for changing the values of real estate, because of fluctuations during the decennial period, than there is for changing the values of personal property, because of fluctuations in the values thereof, occurring during the yearly period.

In support of the demurrer counsel also raise the point that there has not been such complaint as is required by the statute. Since there has not been any complaint by a taxpayer that any error existed in said decennial valuations for the year 1900, which required a special equalization as between said taxpayer’s property and any other property of the city of Toledo, or between said taxpayer’s-property and said property of the plaintiff. I am not prepared to say for myself that a complaint need be made by anyone specially interested, though perhaps it ought to be made by a taxpayer; but I do think that the complaint should be of an error respecting the valuation of the year 1900; what is contemplated by the law is the correction of errors with respect to these valuations; and the requirement of the statute was not answered by making an alleged complaint that some property during the decennial period had become more valuable than it was at the beginning of the decennial period; that is not the kind of a complaint' contemplated by the law. I believe my associates have more definite and perhaps more radical views upon the subject of the complaint; I leave that for them to express for themselves.

The demurrer will be overruled.

WILDMAN, J.

We have all of us realized the importance- of an early decision of this matter, in order that the case may be taken by either party to the Supreme. Court, that we may obtain a decision from that court upon a question of such wide reaching importance. For myself, I have not been able to satisfy myself that the conclusion which Judge Parker has announced, as to the limitation of the power of the board of review, is correct ; in other words, that, in itá povTr of equalizing the values of property, it is limited to a mere correction of the returns as made by the assessors, and afterwards equalized by the decennial board of equalization, or by the board of review, sitting as such. The statute substitutes for the original county and city boards of equalization, both decennial and annual, a new board, under a new name, clothed with all the powers that belonged to the boards as originally constituted under the prior legislation. I am not quite clear that it must sit at one time as a board of equalization and at another time as a board of revision, or that its powers are limited to a mere correcting of the values as returned in the decennial year, in this case in the year 1900. It has seemed to me that perhaps in the case of Mitchell v. Franklin Co. (Treas.) 25 Ohio St. 143, cited by counsel in argument, Judge Mcllvaine has expressed the true rule; and yet, I am not, on the other hand, prepared to say that that announcement by him was necessarily called for by a consideration of the case; that it was anything more than a dictum, and possibly it is not conclusive authority in this case.

In the case of Black v. Hagerty, 9 Circ. Dec. 93 (16 R. 255), Judge Wilson, for the Hamilton circuit court, seems to agree with the view expressed by Judge Mcllvaine that the annual board of equalization is clothed, or was, under the statutes as then existing, with the power of fixing the values as determined by fluctuating conditions; or, in other words, ascertaining the fluctuating values during-the decennial period; and that that was an office to be performed by the annual board in addition to the mere fixing of values of new structures, or subtracting the values of structures destroyed or of property taken out of the territory of the city, or structures or additions or property brought into the city.

I do not wish to be understood, however, as being decided in this opinion. I desire to give it further consideration. Counsel are aware that within the last two or three weeks I have been just a little bit distracted by some other matters that have interfered somewhat more than I desired to have them interfere with the performance of my duties in the consultation room. I have tried to give careful attention to all cases; but I was subject to constant interruptions by various matters that have interfered with as careful examination of briefs of counsel and decisions cited as I should prefer to give them.

It is my judgment that the complaint mentioned in the statute as a prerequisite to a revaluation by’ the board of review, must be a substantial complaint, a complaint by some person in some way interested, whether the valuation that is to be made is an ascertainment of an existing value, or an ascertainment of what was the proper value at the beginning of the decennial period. In either event it seems to me that it should be a complaint that comes to the board of review, and not one that it institutes itself or causes to be instituted by an order on one of its officers. The petition alleges in substance that the board of review selected a block of buildings, or number of buildings, or blocks of properties as to which it designed to make a revaluation, and that it directed one of its officers to make a complaint. It seems to me that such a technical, formal complaint is not such a complaint as the legislators contemplated. And for that reason I am disposed to agree with my associates in overruling the demurrer to the petition. The demurrer, of course, concedes the facts properly pleaded in the petition, including this among others. Whether the attorneys for the parties pleading may desire to amend, or whether they prefer to submit the matter to the higher court, letting the judgment at once be entered here, I have no means of knowing. Of course, if an answer should be filed in which an issue should be raised as to the matter to which I have given special attention and have expressed myself, it might involve a reconsideration so far as I am concerned. I do not know as to my associates. As to the more important and main question involved in the case, I have not given it quite the attention that it seems to me its importance demands, although I have read the authorities and have examined somewhat the briefs of counsel and the pleadings.

HAYNES, J.

I wish to say a word or two in this case. The statute creating the board of review is one of those happy statutes that are passed by the legislature which, instead of stating explicitly and clearly what may be done by these boards of reviews, has given it the powers of several boards, and it is difficult to ascertain just what their powers are. I have tried, after reading the briefs of counsel in the case, to get some line or passage in the act upon which I can stand and say I clearly find that this board has power to raise these assessments in the manner in which they have done. I do not find any such power clearly given, nor given by necessary implication. The allegation of the petition is. as I understand it, that these appraisements have been raised without any reference to the decennial valuations, or the value of the land at the time of said decennial valuation; but that the board has taken the valuation of the lands at the existing times.

Now, in the legislation for Cuyahoga county, power was given to the board of review of the county of Cuyahoga to raise revaluations during the intermediate period between the decennial periods, the value o£ property according to the then existing values at the time that the raise was made. The Supreme Court held, in the case of Gaylord v. Hubbard, 56 Ohio St. 25 [46 N. E. Rep. 66], that so far at least as the annual boards were concerned, such boards had no such power, and because they bad no such power, and because the Cuyahoga law was of a general nature and gave such ■ power, it was unconstitutional and they so declared. Since that time, however, they have made this law, in a measure, a general law, but these same decennial boards now stand, with the same powers they had at that time; and the Supreme Court has declared in positive language that annual boards cannot during the decennial period raise the value of property to the value it is found to have at the time they attempt to make the raise. The question then was whether or no, acting as a board of revision, or as a board of review after the decennial appraisement, they could make the raise as claimed. Well, now, it seems to me, that in the case of State v. Morris, 63 Ohio St. 496 [59 N. E. Rep. 226 ], where there is a very full discussion of these statutes by Judge Burkett, the Supreme Court has thrown light upon the question. The question there raised was whether the ITendley act, so-called, was inconsistent with another act passed by the legislature at the same session, the so-called Royer act; and he makes a very careful examination of the statutes and it seems to me he very clearly states at the conclusion of the opinion that under the Royer act the board acts as a decennial board; that the board is to meet and adjourn at a certain time — it may be called again by the auditor — then it adjourns, but its whole business is to adjust and equalize the returns that are made by the assessors and are set forth in the duplicate made up from their report; and that by necessáry inference, almost by clear statement, their powers are confined to the review of that board and the raising and equalizing of the property on the duplicate according to the values at that time. And I am unable to find any point or any place where power is conferred upon the board of review to raise during the decennial period the valuation of property other than equalizing it from time to time, from any particular amounts that are made with the valuations at the time that the decennial appraisement was made. > ■

It has been suggested that if property be raised only to the actual valuation, there can be no complaint — and the case with which we are familiar, Wagoner v. Loomis, 37 Ohio St. 571, is cited; but that is not the question here — that does not bear upon the ease at bar. If they have no power to raise it, the whole business is invalid and of no effect, no matter whether they put it to the actual cash value of the property or any other amount. It is" a question of power and the Supreme Court has recognized the rule. There is where the ease stands with me at the present time. I think under the allegations of this petition, the demurrer should be overruled. An'd if the parties see fit to answer and make any other allegations and explain a little more fully, of course they should be given permission to do so; but as the case now stands, I am lead to the conclusion that the power has not been granted to this board to do what is done in this particular ease.

Judge Wildman: I think we are all agreed that the law is constitutional.

Judge Haynes: That has been decided by the Supreme Court in a case that went up from Ashtabula county — they declared the law to be constitutional.

Judge Wildman: They also held in State v. Clarke, 68 Ohio St. 463 [67 N. E. Rep. 887], that it repealed the act providing for annual city boards of equalization, which it could not do unless it was a valid act.

Judge Parker: By putting the construction upon the law that the majority of this court does, I see no reason to doubt its constitutionality. If it requires the other construction, however, it seems to me that then this board may exercise powers very different from those exercised by the county boards or by like boards throughout the state, and then it is a laiv of a general nature, not having uniform operation throughout the state, and therefore would not be constitutional. I think that to hold it constitutional requires the construction that the values to be fixed must be those existing at the time of the decennial appraisement.

As to the scope of the authority of the board of review to change valuations, I wish to add that the brief of Attorneys L. W. Storey and •F. E. Calkins, wherein the statutes are carefully analyzed, presents this phase of the case fully and clearly — and their reasoning and conclusions thereon are to me quite convincing and satisfactory.

Another question has been presented in argument upon this demurrer to which it may be well to make some further reference at this time. It is urged by the plaintiff that the petition falls short of showing grounds for interference by injunction because it is not alleged therein, distinctly, that the valuations by the board of review exceed the actual value of the property either when made or in the year 1900 — and the case of Wagoner v. Loomis, 37 Ohio St. 571, is cited on that point. ' It is there laid down as the law of this state that:

“Inequalities in the valuations, made under a valid law, of property for taxation, do not constitute grounds for enjoining the tax, in the absence of fraudulent discriminations by the agents and officers charged by the law with the duty of making such valuations” and that “even in such case equity will not relieve a taxpayer whose property is not assessed in a greater amount than would have been imposed upon it, in case all the taxable' property of the state had in fact been assessed by uniform rule and at its true value in money;” in the application of these principles relief was refused to the plaintiff though his property had been valued at 80 per cent of its true value in money, while other property in the county was valued at but 40 per cent of its true value, and though, as was said by Judge Me-Ilvaine in deciding the case, the record fully established that, “a gross, if not scandalous, inequality” was the result. But the court- places the decision upon the ground that no more was shown than a “mistake or error of judgment” on the part of the officers upon whom devolved the duty of fixing valuations under the law, and it is pointed out that the law has made ample provisions for the correction of such errors in tribunals specially provided for that purpose, and that parties complaining must (in the first instance, at least) seek redress in such tribunals. Manifestly a court of equity cannot enter upon such inquiries and attempt to adjust mere inequalities of burdens thus accidentally and inevitably arising, without superseding such special tribunals in the exercise of their functions, overburdening the court and reducing all to confusion, producing greater, evils than it would cure.

But here we have a ease where the petition sets forth that the tribunal providing for the correction of such errors has itself not merely erred in certain instances, but has proceeded and is proceeding according to a rule and system based upon an erroneous construction of the law and of its authority in the premises, that must result in wrong and excessive valuations unless by accident in some instances the right values may be hit upon.

To such a state of facts we think the case of Wagoner v. Loomis, supra, does not apply. In such a ease it does' not devolve upon the plaintiff to allege - specifically that his property has beep valued above its true value in money. As said by our Supreme Court in Exchange Bank v. Hines, 3 Ohio St. 1, 15: “Taxing by uniform rule requires uniformity, not only in the rate of' taxation, but also in the mode of assessment upon the taxable valuation.” The equality and uniformity required by the constitution require such a measure of uniformity. in the mode of fixing values that just results are at least possible, and will probably be attained. If the law requires— and we hold it does — that the values to be regarded are those of the year 1900, manifestly a rule and system whereby such values are to be disregarded and those of subsequent years taken instead, must in many, if not in most cases, result in destroying that equality and uniformity required by the constitution and aimed at by the law.

Among the eases we have examined that give light upon this point and tend, we think, to support our views, are those of Exchange Bank v. Hines, supra; Cleveland Tr. Co. v. Lander, 62 Ohio St. 266 [56 N. E. Rep. 1036]; Railroad Tax Cases, 13 Fed. Rep. 722; First Nat. Bank v. Lucas Co. (Treas.) 5 O. F. D. 467 [25 Fed. Rep. 749]; Taylor v. Railway, 88 Fed. Rep. 350; Cummings v. Bank, 101 U. S. 153 [25 L. Ed. 903].


source: Caselaw Access Project

author: WILDMAN, J.

license: Public Domain

text:
    BOUNDARIES.
    [Wood (6th) Circuit Court,
    1906.]
    Haynes, Parker and Wildman, JJ.
    Lewis Overly v. State of Ohio.
    Thread or Mats' Channel ano not Thread op Stream Governs where Non-NAVIGABLE RlVER IS BOUNDARY.
    Where the boundary between two counties is a nonnavigable river, the boundary line is determined as being the thread of the main channel of the river and not the thread of the river regardless of its channels and the islands between its banks.
    [For other cases in point, see “Boundaries,” §§ 163-166. — Ed.]
    [Syllabus approved by the court.)
    Error to Wood common pleas court.
    L. M. Conway, for plaintiff in error.
    J. E. Ladd and E. G. McClelland, for defendant in error.
   WILDMAN, J.

(Orally.)

The plaintiff in error, Lewis Overly, was charged and convicted in the justice’s court with illegally fishing in the waters of the Maumee river, and the sole question arising here, although presented in different forms, is really one of venue.

It is not contended on behalf of the plaintiff in error that the evidence does not disclose a violation of the law on his part in the act described in the indictment. It is substantially conceded, and the evidence shows that he did fish for black bass in violation of the statute, but it is claimed that he was improperly prosecuted and convicted in Wood county; that the precise point where he violated the law was within the boundaries of Lucas county, rather than in Wood county.

The matter has been very ably argued and numerous authorities have been cited in support of the contention in behalf of the plaintiff in error, and in behalf of the state.

It is not my purpose to review these authorities. It is sufficient to say that we are not disposed to disturb the conclusion arrived at by the court below, in his rulings during the trial and the instruction which he gave to the jury as to how the boundary line between Wood and Lucas counties was to be ascertained. He substantially followed the rule of the Supreme Court of Ohio in the case of Benner v. Platter, 6 Ohio 504, 505, following esspecially the language of Judge Wright, who delivered the opinion, as expressed on page 508 and following.

This rule was consistent, also, with the decision of this court in the case of Ludwig v. Overly, 6 Circ. Dec. 690 (19 R. 709), and also with certain decisions of the Supreme Court of the United States in determining boundary lines between some of the states along the Mississippi river on either side.

The question as presented in the case, Benner v. Platter, supra, is not altogether free from obscurity; nor indeed does the principle which governs eases of this character appear very well defined by the adjudications. It has been established by a long course of authority that in Ohio the boundary line between ownerships and probably between political territorial lands of the state where a stream of water is defined as a part of the boundary, will be the thread of the stream; in other words the middle line between the banks, having no regard for the depth of the channel.

It is claimed on one side that where an island intersects a part of said line lying partly upon one side of the line and partly on the other, that the line will still follow the middle of the entire stream. The substance of the holding in the case of Benner v. Platter, supra, to which I have referred, is that in legal contemplation the main channel, or the thread of the main channel rather of the stream is to be taken in such cases as the boundary line.

It is not, perhaps, apparent in that case that the island did intersect the middle line of the stream, but the court laid down the very broad general proposition that a boundary on a stream, not navigable, is a call for the channel or middle of the stream- — a-call for the main stream, not a mere branch or a narrow channel. Judge Wright, in this decision referred to says that, “Whether the tract claimed as an island be one, that is, land permanently surrounded by water, or a peninsula, sometimes insulated by. water flowing through a ravine, ór into a bayou, makes no difference. The boundary being the main channel or center of the creek, islands, properly so called,' will belong to the proprietor of that side of the channel where the island is found. This disembarrasses the case of the inquiry, whether the disputed land is an island or not;” the discussion suggested growing out of the fact that there was some question in the case whether the particular tract of land called an island was such, or whether it was a peninsula or part of the main land.

In the' case at bar, the island which the defendant in error claims shifted the boundary line further north, lies almost south of what would be the middle of the entire stream. It is not contended on behalf of the defendant below, the plaintiff in error here, that more than eight or ten feet in width of the island projected north of this line. The island, then, was substantially south 'of what would be the middle thread of the river, and the channel south of the island is not much more than half the width of that on the north. The north channel was properly deemed by the jury to mean the channel the center of which should mark the defined line between the two counties, the boundary line. Considering the case with this view, we are not disposed to disturb the verdict rendered, and the judgment rendered by the court thereon will be affirmed.

Haynes and Parker, JJ., concur.


author: PARKER, J.

text:
    ASSESSMENTS — MUNICIPAL CORPORATIONS — STREETS.
    [Lucas (6th) Circuit Court,
    April 2, 1906.]
    Haynes, Parker and Wildman, JJ.

      Josephine Lippert v. Toledo (Clty) et al.
    1. When Council to Apportion Stkeet ' Assessments.
    It is not necessary that the council should determine in advance of the „ assessing ordinance the proportion of the cost and expense of making a street improvement that is to be assessed upon the property abutting thereon.
    2. Effect of Apportioning Assessment in Preliminary Proceedings.
    The fact that the council may have, in the resolution and ordinances adopted and passed preparatory to the making of the improvement, indicated the proportion it intended to assess upon the abutting property, does not bar it from designating a different proportion in the assessing ordinance, provided it is within the limitations fixed by statute.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 169-195, 300-308; 6 Cyc. Dig., “Municipal Corporations,” §§ 1225 et seq. — Ed.]
    [Syllabus by the court.]
    ERROR to Lucas common pleas court.
    B. A. Hayes, for plaintiff in error:
    Authorities cited as follows: Bloom v. Xenia, 32 Ohio St. 461; Cincinnati v. Seasongood, 46 Ohio St. 296 [21 N. E. Rep. 630] ; Hunter v. Earl, 51 Ohio St. 573; Elyria Gas & Water Co. y. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335] ; Comstock v. Nelsonville, 61 Ohio St. 288 [56 N. E. Rep. 15] ; Scott v. Toledo, 6 O. F. D. 192 [36 Fed. Rep. 385; 1 L. R. A. 688] ; Freeman v. Htmter, 3 Circ. Dec. 689 (7 R. 117) ; Elyria Gas <& Water Co. v. Elyria, 7 Circ. Dec. 527 (14 R. 219). .
    C. S. Northrup, city solicitor, and O. W. Nelson, for defendants in error.

       Affirmed, without report, Lippert v. Parker, 75 O. S. 000; 52 Bull. 116.

   PARKER, J.

Josephine Lippert filed a petition in the court of common pleas, setting forth the facts respecting a pavement of Canton street and the assessment of a part of the costs thereof upon her property, and praying that a part of the assessment might be enjoined. The court of common pleas sustained a demurrer to this petition, and judgment was entered and the case is brought into this court for the reversal of that judgment.

It appears that the council proceeded in the regular and- ordinary way to make this improvement and to assess the cost thereof. It is claimed, however, that when they came to pass the ordinances assessing the cost, they assessed more of the cost upon the plaintiff and other abutting owners than was authorized or resolved upon by the ordinance preceding the assessment ordinance.

Graff M. Acklin was also a plaintiff in the ease and upon the court’s sustaining the demurrer to the petition Graff M. Acklin asked leave to amend and the case was divided. It is brought up by Josephine Lippert, but is pending in the court below on behalf of' Graff M. Acklin, he having amended his petition.

The averments respecting the resolution and ordinance fixing the amount that should be assessed upon the property abutting upon the improvement are as follows:

“Paragraph fourth. Plaintiffs further say that on the fourteenth day of March, 1904, said council passed an ordinance for the improvement of said Canton street from Cherry street to Jackson street, by repaving the central foi’ty feet thereof; that the fourth section of said ordinance provided, ‘that the cost and expenses of said improvement, less one-half (y2) the cost of repaving and less one-fiftieth (1-50) of the cost of paving and the cost of intersections, and except the cost of that portion of said improvement lying between the outer rails of the tracks of the Toledo Railways and Light Company, if any such tracks there be, shall be assessed in proportion to the benefits which may result from the said improvement, upon all the lots and lands bounding and abutting upon said Canton street from Cherry street to Jackson street, and of printing and publishing notices, resolutions and ordinances required, together with the cost of serving said notices, the cost of construction, and the interest on bonds issued in anticipation of the collection of deferred assessments, and all other necessary expenditures. ’
“Paragraph fifth-. Plaintiffs further say that on the sixteenth day of May, 1904, said council passed an ordinance determining to proceed with the improvement of Canton street from Cherry street to Jackson street, by repaving the central forty feet thereof; that the third section of said ordinance provided, ‘that there be levied and assessed upon the lots and lands hereinafter described, the costs and expenses of said improvement, less one-half (y2) the cost of repaving and less one-fiftiech (1-50) of the cost of paving and the cost of intersections, and except the cost and expense of that portion of said improvement lying between the outer rails of the tracks of the Toledo Railways and Light Company.’ ”

The tracks of the railroad company mentioned in the petition extend along the center of Canton street.

The contention of plaintiff in error is that, under the plan of assessing outlined, or formulated and provided for in this legislation, this being a ease of repaving, one-half of the whole cost should be ascertained and laid upon the city, and from the other half should be deducted the amount appoidioned to the railroad company and the amount of intersections, and the result would be, as we find from computations made and presented to us, the cost of the improvement being $41,472.54, that after deducting one-half of that total cost, $20,-736.27, and then the cost of intersections, $5,887.20, and the cost of the portions between the outer rails of the street railroad which would fall upon the street railroad, amounting to $14,542.40, there would remain to be assessed upon the abutting property $306.67. It is contended, however, upon the part of the city that this is not the true construction of the legislation; that what the council must have intended, and what they evidently intended, was the thing that is usually done in such eases by ihe council; to wit, the deducting from the total cost of $41,472.54, of these items of the cost of intersections and the cost of the portion between the outer rails of the street railroad, which would leave $21,042.94 to be divided between the city and property owners, one-half to be paid by each, or $10,521.47 to be assessed upon the abutting property. And it is pointed out or suggested to us in argument, and we suppose it is true, though we have no other evidence of the fact, that on Monroe street the same system was adopted, the same language was used in the resolutions and ordinances, with the result, if the contention of the plaintiff in error is upheld, that instead of the property owners paying anything for the pavement they would really have some $5,000 or $6,000 coming to them from the city on account of its laying the paving in front of their property. I suppose that could hardly be true. The result might be, however, that they would be relieved from paying anything whatever if the rule and con-stmction contended for by counsel for plaintiff were upheld.

I shall read one of these paragraphs again, since it has been seen what startling result would flow from sustaining the contention of plaintiff in error. I read from the ordinance of May 16, 1904:

“That there be levied and assessed upon the lots and lands hereinafter described the cost and expenses of said improvement less one-half (%) the cost of repaving and less one-fiftieth (1-50) of'the cost of paving and the cost of intersections, and except the cost and expenses of that portion of said improvement lying between the outer rails of the tracks of the Toledo Railways & Light Company.”

It seems to us that that language is entirely clear, and that it does not accomplish what it is said upon the part of the city it was the intention of the council to accomplish, but that the whole cost of the intersections and of the paving of the part the cost of which falls upon the railway company is to be deducted from the one-half of the cost of repaving which is to fall upon the property owners'.

We are told by the solicitor that this language of the ordinance results from trying to adopt a form in use when the statute did not contain the provision that “whenever special assessments have been levied and paid for the improvement of any street or other place the property so assessed shall not again be assessed for more than one-half the cost and expense of repaving or repairing such street or other place unless the grade of the same is changed;” and that to meet such conditions the old form was changed by inserting the words “less one-half the cost of repaving and,” as now found in the ordinances of March 14, 1904, and May 16, 1904. This seems to be the true explanation of the peculiar form now in use. Nevertheless, we must construe the language as we find it, and assume that it was meant by the council to have its usual and ordinary meaning. It will be readily seen that the old form was and is suitable for a case of original construction of an improvement, where the purpose is to except certain items from the whole cost and assess the remainder on abutting property, while the new form does not express a purpose to deduct such items from the whole cost and assess one-half the remainder upon the abutting property.

But it appeals from the petition that, notwithstanding this, the council did subsequently pass an ordinance in which it apportioned the cost differently; that is to- say, in the way that the solicitor says it was designed from the first to apportion the cost, and therefore we have to pass upon the validity of that assessment, which amounted to a radical change of base upon the part of the council.

The question is, might they lawfully do that or were they bound to follow out the scheme and plan and the ráte of proportions set forth in the preliminary legislation, or the earlier legislation? We are cited to the case of Freeman v. Hunter, 3 Circ. Dec. 689 (7 R. 117), decided by this circuit court at its September term, 1892. That was a case where property owners w^ere resisting part of the assessment on the ground that there had been included, in the amount assessed, items that could not be lawfully assessed against their properties. Indeed, the assessment which was there attacked was made up entirely of items of a character which they declared could not be lawfully assessed upon their property. Prior to that time assessments had been made for the ordinary cost of the improvement, to which no resistance was made, but when it came to the last assessment it covered awards of damages' on account of property taken, by changing the grade of the street, amounting to over $10,000, and court costs in the eases where these amounts were determined, amounting to $352 and some odd cents, the witness fees, the interest, and so forth, the whole amount being $12,-468.42. Now, the chief contention of the property owners in that case was, that these were items that could not be lawfully assessed as a part of the cost of the improvement, and that was the question which was discussed by the judge of this court who delivered the opinion. In starting out to discuss it, he says, page 691:,

“The question as to the constitutionality of the proceedings whereby these assessments were made, being of prime importance, will be first considered.”

And he proceeds to discuss it. That seems to imply a promise that he would come back to a consideration of the other question, but he did not, and one of the points made by the property owners complaining but which was not 'discussed by the court, was stated as follows:

“That even granting the power of the council originally to have assessed for any or all of said items, it did not determine to do so at the proper time; but, on the contrary, indicated by its action that it would not so assess them, and exhausted its power of assessing the cost and expenses of said improvement in making its said assessment of September 5, 1890.”

The ease went to the Supreme Court, and there is a very brief mention of the point upon which it was decided by the Supreme Court, found in Hunter v. Earl, 51 Ohio St. 573, as follows:

“Judgment affirmed on the ground that the ordinance of July 18, 1889, did not indicate an intention on the part of the city to assess on the abutting property, any part of the cost included in the assessment ordinance of October 27, 1890; nor was any opportunity given the parties assessed to be heard on or in opposition to the same.”

So that what was regarded by the parties and by the court below as the principal question in the case was not passed upon by the Supreme Court at that time.

In a later case it did hold, as this court-held in that ease, that the assessing of such items as were objected to there was unlawful; that the law which appeared to authorize it was in that respect unconstitutional.

Council for the plaintiff here cites this decision by the Supreme Court in support of his contention that the council, having declared and ordained in its ordinance of March 14, 1904, and again in its ordinance of May 16, 1904, that the assessment was to He made upon the basis which would relieve the property owners from paying any more than $306.67, it was not competent or lawful for the council afterward to change base upon this, matter and require the property owners to pay $10,521.47. It will be observed that the Supreme Court states the concurrence of the two things or elements entering into that case as the reason why the subsequent assessment ordinance was objectionable and invalid. First, that the council had not indicated by the earlier ordinance an intention to assess these items upon the property; and, secondly, that no opportunity was given to the parties assessed to be heard on or in opposition to the same. We do not understand it -to be true in this case that the parties were not given an opportunity to be heard in opposition to this assessment of $10,521.47; and so far as appears from the petition the council proceeded in the ordinary way to publish notice of the assessment, and property owners were given an opportunity to come in and be heard upon it. Does the mere circumstance then, that in the earlier ordinance the council had resolved upon a course which wrould result in less burden to property owners, forestall and hinder or prevent the council from afterward making an assessment which, it must be conceded, would be a lawful assessment if the steps taken were regular?

Upon looking into the statutes, we do not find that it devolved upon the council, or that it is required of the council that it shall, by these earlier ordinances* under circumstances like those set forth in the petition, declare the amount or the proportion that is to be assessed against the property owners. It should be remarked that there is no element of contract or estoppel here. The resolution and ordinances were passed by a sufficient vote of the council, so that no petition for the improvement was needed, and no petition was in fact presented. The council proceeded upon its own initiative. The property owners were bound to submit to any lawful thing that the council might do in the premises.

Under certain, circumstances, as set forth in Sec. 61 of the code recently adopted, passed on October 22, 1902 (96 O. L. 42; Lan. 3612; B. 1536-221), a petition would be required Section 50, 96 O. L. 39 (Lan. 3600; B. 1536-210), provides that the cost of such an improvement may be assessed by either one of three distinct methods:

“First. By a percentage of the tax value of the property assessed.
“Second. In proportion to the benefits which may result from the improvement, or
“lhird By the foot frontage of the property bounding and abutting upon the improvement.”

We understand that the assessment was made in this case upon the basis set forth in the second paragraph: i. e., in proportion to the benefits. Section 51, 96 O. L. 39 (Lan. 3602; B. 1536-211), provides, among other things, that there shall be a resolution declaring the necessity of the improvement and that—

“Not earlier than two weeks after the passage of said resolution, and before any such improvement is begun, council shall by ordinance, * * * determine the general nature of the improvement, what shall be the grade of the street, alley or other public place to be improved, as well as the grade or elevation of the curbs, and approve the plans, specifications, estimates and profiles for the proposed improvement,” and then this: “Council shall also determine in said ordinance the method of the assessment, the mode of payment therefor, and shall declare whether or not bonds shall be issued in anticipation of the collection of the same.”

The methods of assessment are required to be set forth in such ordinance, but we do not understand that the setting forth of the amount or proportion to be assessed against the abutting property, is any part of the method of assessment. The methods are what are mentioned in this statute: i. e., by a percentage of the tax value of the property assessed, or in proportion to the -benefits which may result from the improvement, or by the foot frontage of the property bounding and abutting upon the improvement. Those thing’s must be declared by such ordinance, but the matter of declaring the amount of the whole cost to be assessed upon the abutting property may be deferred.

Section 53, 96 O. L. 40 (Lan. 3604; B. 1536-213), provides a limitation of assessments. First comes the general provision that in all cases of assessment the council shall limit the' same to the special benefits conferred upon the property assessed. Then follow the provisions applicable to the case under consideration:

“Tn all municipalities the corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council may deem just, which part shall not be less than one-fiftieth of all such cost and expenses; and in addition thereto, the corporation shall pay the cost of intersections; provided, that whenever special assessments have been levied and paid, for the improvement of any street or other public place, the property so assessed shall not again be assessed for more than one-half'the cost and expense of repaving or repairing such street or other public place unless the grade of the same is changed.”

This was a case coming under this last provision, a case where the street was being reimproved, where the property owners had already been once assessed for an improvement of this character: It seems that it was within the power of the council, under the circumstances shown here, to have made this assessment $306.67, and, as we construe the two ordinances mentioned, they set out with that purpose and intention ; but we do not understand that in so doing they had exhausted their -power in the premises, but we hold that they might lawfully do subsequently what they did ; %. e., resolve upon putting more of this cost, but not exceeding $10,521.47, upon the abutting property; that they might do that without formally repealing or amending any part-of the ordinances theretofore adopted, and by the passing of ordinances that are irreconcilable therewith and which declare a different intention. That is the way they appear to have proceeded here.

After they passed this assessing ordinance, for aught that appears, they proceeded regularly under Sec. 68, 96 O. L. 44 (Lan. 3619; B. 1536-228), to appoint a board to report estimates of the assessment and, under Sec. 69, 96.O. L. 44 (Lan. 3620; B. 1536-229), to fix a day for the equalization of assessments, and Sec. 69, 96 O. L. 44, provides that when the assessment is confirmed by the council it shall be complete* and final and shall be recorded in the office of the clerk of the council. Among these sections we do not find any provision for the publication of a notice to the parties interested or for the filing of objections to the assessment, but tbosé provisions are found in Rev. Stat. 2278, 2279 (Lan. 3651, 3652; B. 1536-259; 1536-260) and by Sec. 94, 96 O. L. 51 (Lan. 3649; B. 1536-257), of this code they are preserved and kept in force, to wit: “All assessments provided for in this act shall be subject to the provisions of Secs. 2278, 2279 [Lan. 3651, 3652; B. 1536-259, 1536-260].”

We think that under the circumstances this legislation of the council whereby the change of proportion of the asséssment to be paid by the abutting owners was made which resulted in their being assessed $10,521.46, instead of $306.67, was regular and legal and should stand. For that reason we hold that the petition fails to set forth a cause of action, and that the judgment of the court of common pleas should be affirmed, and it is affirmed accordingly.

Haynes and Wildman, JJ., concur.


author: MARVIN, J.

text:
    DESCENT AND DISTRIBUTION — WRONGFUL DEATH.
    [Cuyahoga (8th) Circuit Court,
    March 4, 1907.]
    Winch. Henry and Marvin, JJ.
    Katherine Miller v. Andrew Miller et al.
    Recovery for Wrongful Death foe Exclusive Benefit of Husband or Wife.
    Where a resident of this state meets death hy wrongful act in the state of New York and his widow being appointed in Ohio -administrator of his estate settles the claim for the wrongful death without suit, the proceeds of such settlement are to be distributed under Rev. Stat. 6134, 6135 (Lan. 9673, 9675), which provide that actions by an administrator to recover for the wrongful death of intestate shall be for the exclusive benefit of the wife or husband, and children. Hence, the father of the deceased is not entitled to share as a distributee of such funds.
    [Por other cases in point, see 3 Cyc. Dig., “Executors and Administrators,” §§ 408-425. — Ed.]
    [Proof of this decision and syllabus was submitted to Judge Marvin and corrected. — Ed.]
    Error to Cuyahoga common pleas court.
    Smith, Taft & Arter, for plaintiff in error.
    E. P. Strong and Smith, Taft & Arter, for defendants in error:
    Conflict of laws. Snedecker v. Snedecker, 47 App. Div. 471 [63 N. Y. Supp. 580] ; Ott v. Railivay, 10 Circ. Dec. 85 (18 R. 395) ; affirmed, Ott v. Railway, 62 Ohio St. 661; Alexander v. Pennsylvania Co. 48 Ohio St. 623 [30 N. E. Rep. 69] ; Steel v. Kurtz, 28 Ohio St. 191; Wolf v. Railway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812]; Stuber v. McEntee, 142 N. Y. 200 [36 N. E. Rep. 878]; Wilson v. Tootle, 55 Fed. Rep. 211; McDonald v. McDonald, 16 Ky. Law 412 [28 S. W. Rep. 482] ; Merrell v. McMahon, 7 Dec. 136 (5 N. P. 77) ; Johnston v. Railway, 7 Ohio St. 336 [70 Am. Dec. 75] ; Leonard v. Navigation Co. 84 N. Y. 48 [38 Am. Rep. 491] ; Debevoise v. Railway, 98 N. Y. 377 [50 Am. Rep. 683]; Safford v. Drew, 3 Duer 627; Lucas v. Railivay, 21 Barb. 245; Cincinnati Trac. Co. V. Forrest, 73 Ohio St. 1; Usher v. Railway, 126 Pa. St. 206 [17 Atl. Rep. 597; 4 L. R. A. 261; 12 Am. St. Rep. 863] ; Dennick v. Railway, 103 U. S. 11 [26 L. Ed. 439] ; Stoeckman v. Railway, 15 Mo. App. 503; Missouri Pac. Ry. v. Lewis, 24 Neb. 848 [40 N. W. Rep. 401; 2 L. R. A. 67] ; Weaver v. Railway, 29 D. C. 499; Stewart v. Railway, 168 U. S. 445 [18 Sup. Ct. Rep. 105; 42 L. Ed. 537]; Degaramo’s Estate, Matter of, 86 Hun. 390 [33 N. Y. Supp. 502] ; Minor, Conflict of Laws 495, Sees. 201, 202; Woodard v. Railivay, 10 Ohio St. 121; Mover v. Pennsylvania Co. 25 Ohio St. 667; Brooks v. Railway, 53 Ohio St. 655 [44 N. E. Rep. 1131] ; Railway v. Fox, 64 Ohio St. 133 [59 N. E. Rep. 888; 83 Am. St. Rep. 739] ; Balt. & O. Ry. v. Chambers, 73 Ohio St. 16; Wooden v. Railway, 126 N. Y. 10 [26 N. E. Rep. 1050; 13 It. R. A. 458; 22 Am. St. Rep. 803]; Railway v. Fulton, 59 Ohio St. 575 [53 N. E. Rep. 265; 44 L. R. A. 520] ; Pitts. C. & St. L. Ry. v. Hine, 25 Ohio St. 629; Wolf v. Railway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812].
   MARVIN, J.

The facts in this case are, that one Anthony Miller, a citizen and resident of Cuyahoga county, Ohio, was killed on July 2, 1905, in Erie county near Buffalo, New York, by the wrongful act of the Buffalo and Depew Railway Company; he died intestate, without issue, leaving the plaintiff in error, Katherine Miller, his widow, and his father, Andrew Miller, a man of property and not dependent upon said Anthony Miller for support. Katherine Miller was appointed administrator of the estate of her deceased husband by the probate court of Cuyahoga county. "Without bringing an action against the railroad company for the wrongful death of her husband, she compromised the claim growing out of such death for the sum of $4,000. This was done with the approval of, and was confirmed by, said probate court. Upon motion duly made in that court for an order of distribution of this fund, it was ordered that one-half of the amount be paid to the said Andrew Miller and one-half to the said Katherine Miller. From this order an appeal was taken to the court of common pleas, and upon the hearing the same order was made, in that court, and to said last named order error is prosecuted here.

The statutes of the state of New York bearing upon the case, were introduced in evidence and are contained in the bill of exceptions filed in this court.

The action of the court in making the order complained of is claimed to be justified, because, it is said,, the order is in conformity with the distribution which would be required to be made under the laws of the state of New York; that an action for damages caused by this death could not have been maintained m the state of New York but for the statutes of that state authorizing such action,' and that it follows that the distribution must be made in accordance with those statutes.

A large number of authorities are cited in support of the proposition that distribution of funds obtained in an- action to recover damages for wrongful death, must be distributed in accordance with the statutes of the state in which the wrongful act was done.

Among these authorities see Dennick v. Railway, 103 U. S. 11 [26 L. Ed. 439] ; McDonald v. McDonald, 16 Ky. App. 412 [28 S. W. Rep. 482] ; Weaver v. Railway, 28 D. C. 499.

There are so many authorities in support of the proposition that it cannot be denied that, unless by reason of the statutes of Ohio, the rule that the distribution must be. made in accordance with the statutes of the state in which the death is caused, is changed, the distribution must be made in accordance with the statutes of such state.

It is said, however, that even if this be the rule still the distribution would be made as provided by the laws of Ohio in this particular case, because it is provided by Sec. 1903 of 'the statutes of New York, as appears by the bill of exceptions:

“The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent’s husband or wife, and next of kin; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts, and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action, and his commissions upon the residue; which must be allowed by the surrogate, upon notice, given in such manner and to such persons, as the surrogate deems proper.”

It is urged, as it does not appear from this section, that the distribution is to be as of “unbequeathed assets,” under the statutes of New York, that the administrator in Ohio having the fund in his hands, and being réquired by the statute of New York to distribute the same as “unbequeathed assets left in his- hands after payment of all debts and expenses of administration,” this may fairly be interpreted to be a direction to such Ohio administrator to distribute the fund as he would distribute “unbequeathed assets” under the laws of Ohio, and therefore would distribute this entire fund to the widow, and, in support of this contention, the case of Hartley v. Hartley, 71 Kan. 691 [81 Pac. Rep. 505], is cited.

"Whatever may be said as to whether the law is properly stated in this case, it does not support the contention of the plaintiff in error, because it is further provided by Sec. 1905 of the statutes* of New York that,

“The term ‘next of kin,’ as used in the foregoing sections (in-eluding Sec. 1903), has the meaning specified in See. 1870 of this act.”

And Sec. 1870 provides that,

“The term ‘next of kin,’ as used in this title, includes all those entitled under the provisions of law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent, after payment of debts and expenses, other than a surviving husband or wife, ’ ’ after the payment of debts and expenses.

So that, when Secs. 1905 and 1870 are read in explanation of the meaning of Sec. 1903,- it is clear that the provision contained in the last named section requires the distribution to be made to the, in this case, surviving wife, and those next of kin, who are defined in Secs. 1905 and 1870,

It follows that the order of distribution made in this case was the proper order to be made, unless our own statutes distinctly provide otherwise.

Attention is called to Rev. Stat. 6134 (Lan. 9673), which provides for a right of action against the person, natural or artificial, causing death by wrongful act,' in Ohio.

Revised Statute 6135 (Lan. 9675), provides who shall be the beneficiaries- of the fund derived from such action.

On March 25, 1851, the first statute in Ohio providing for an action against one causing death by wrongful act, was passed. This statute is found in 2 Curwen 1673, and consists of two sections; the first is, so far as it has application to the case now under consideration, substantially the present Rev. Stat. 6134 (Lan. 9673), and the second, substantially our present Rev. Stat. 6135 (Lan. 9675).

These provisions were carried into the revision of 1880, with the present sectional numbers.

On May 21, 1894 (91 O. L, 408), the legislature enacted Rev. Stat. 6134a (Lan. 9674). This Sec. 6134a was amended and placed in its present form on May 6, 1902 (95 O. L. 401). The enactment of 1894 reads:

“An act to supplement Sec. 6134 [Lan. 9673] of the Revised Statutes of Ohio, Sec. 1. Be it enacted by the general, assembly of the state of Ohio, that- Sec. 6134 [Lan. 9673] of the Revised Statutes be supplemented as follows:
“Section 6134a [Lan. 9674],” and then follows the supplementary section.

The amendment of Rev. Stat. 6134a (Lan. 9674) is entitled an act to amend Rev. Stat. 6134a (Lan. 9674), and reads: “Be it enacted by the general assembly of the state of Ohio, Sec. 1, That Sec. 6134a [Lan. 9674] of tbe Revised Statutes of Ohio be amended so as to read, as follows,” and then follows the present Rev. Stat. 6134a (Lan. 9674) and this reads:

“Whenever the death of a citizen of this state has been or may be caused by a wrongful act, neglect or default in another state, territory or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory or foreign country, such right of action may be enforced in this state within the time prescribed for the commencement of such action by the statute of such other state, territory or foreign country.”

As has already been said, Rev. Stat. 6135 (Lan. 9675) provides for the distribution of the funds obtained by such action, and the provision is:

“Every such action shall be for the exclusive benefit of the wife or husband, and children,” etc.

Clearly then, if this wrongful death had been caused in Ohio, under the facts in this case, the widow would have been entitled to the entire amount collected, and it can hardly be doubted that if Rev. Stat. 6134a (Lan. 9674) had been a part of the original act the distribution would have been to the widow alone in this case.

It is urged, however, on the part of the defendant in error that Rev. Stat. 6134a (Lan. 9674) is to be treated as an independent section, and that therefore the words of Rev. Stat. 6135 (Lan. 9675), “Every such action shall be for the exclusive benefit,” etc., refer only to such action as is named in Rev. Stat. 6134 (Lan. 9673). We do not so understand it.

The legislature in terms have said, in enacting Rev. Stat. 6134a (Lan. 9674), that it is a supplement to Rev. Stat 6134 (Lan. 9673). The word “supplement” is defined in .Webster’s Dictionary as meaning : “To fill up or supply by additions; to add to.C And, in Anderson’s Law Dictionary, the word “supplemental” is defined in these words: “Added to a thing to complete it; supplying a defect in something that precedes,” etc. So that by the enactment of Rev. Stat. 6134a (Lan. 9674), the legislature added to Rev. Stat. 6134 (Lan. 9673), and Rev. Stat. 6134a (Lan. 9674) became a part of the same statute as Rev. Stat. 6134 (Lan. 9673), and unless we are to assume that the legislature meant that although it was added to Rev. Stat. 6134 (Lan. 9673), yet that Rev. Stat. 6135 (Lan. 9675) should not apply to Rev. Stat. 6134a (Lan. 9674), then it is clear that our own statute directs the manner of distribution of this fund; we think it will not do to say that the legislature overlooked the provisions of Rev. Stat. 6135 (Lan. 9675) when it enacted Rev. Stat. 6134a (Lan. 9674). The last-named section has been before the legislature twice, as already pointed out, and it can hardly be doubted that it intended to leave Rev. Stat. 6135 (Lan. 9675) to apply to that section as well as Rev. Stat. 6134 (Lan. 9673)..

That being so, we have the case of an administrator appointed in this state, acting under the authority of a court in this state, and acting so far as the disposition of the funds in his hands is concerned, under the control of a court of this state, and we have a statute of this state directing the manner of the distribution of funds obtained (as these funds wei'e), whether obtained by reason of wrongful death caused in this state, under Rev. Stat. 6134 (Lan. 9673), or by reason of wrongful death caused in some other jurisdiction, under Rev. Stat. 6134a (Lan. 9674) yet, by Rev. Stat. 6135 (Lan. 9675), it is provided that the funds arising from “every such action shall be for the exclusive benefit,” etc.

Entertaining these views we hold that the judgment of the court' of common pleas should be reversed, and under the conceded facts in this ease the order should have been, that this entire fund be paid to the plaintiff in error, Katherine Miller, and it is so ordered here.

Winch and Henry, JJ., concur.


author: COOK, J.

text:
    NEGLIGENCE — STREET RAILWAYS.
    [Mahoning (7th) Circuit Court,
    March Term, 1907.]
    Burrows, Laubie and Cook, JJ..
    Mahoning Valley S. E. Ry. v. Hugh H. Houston.
    What Constitutes Negligence oe a Motobman op Steeet Railway Cab Ar-PKOAcniNG Frightened Horse.
    The failure of a motorman, when running a car at the ordinary speed, to stop or lessen its speed upon observing that a horse approaching from the opposite direction is frightened is not negligence, unless the circumstances indicate that the horse has, or will become unmanageable upon the approach of the car, and that the driver or persons with him are or will be put in imminent peril.
    [For other cases in point, see 7 Cyc. Dig., “Street Railways,” §§ 486-489.— Ed.]
    [Syllabus by the court.]
    ERROR to Mahoning common pleas court.
    Arrel, Wilson, Rowland & Harrington, for plaintiff in error.
    Hine., Kennedy & Robinson, for defendant in error.
   COOK, J.

The son of defendant was driving a horse and buggy along a public highway of this county. He was a young man, full-grown, of more than ordinary physical strength, and with him in the buggy was his sister also fully grown. The highway was some fifty or sixty feet wide, level and in good condition. On one side of the highway was situated the electric railway of plaintiff, leaving a driveway of at least twenty-five to thirty feet for vehicles. The railway of plaintiff is an ordinary interurban railway for the carrying of passengers, and the ears the ordinary cars. As the car of plaintiff approached the horse and buggy, the horse, when about six hundred feet away from the car, showed evidence'of fright, presumably from the approaching ear, and the nearer he approached the car the more frightened he became,- but was under full control of the driver until he got within fifty to seventy-five feet of the car when he suddenly plunged to the side of the road opposite the track and then back again onto the track immediately in front of the car and ■was killed.

The motorman saw the horse and buggy as it approached but did not reduce the power or put on the brake, until the horse became entirely unmanageable and plunged to the side of the road when he immediately shut off the power and put on the emergency brake, but it was too late to prevent the accident. The car was running from twelve to fifteen miles an hour, which was the ordinary speed. The young man testifies distinctly that he held a tight rein and was in full control of the horse until he got within fifty to seventy-five feet of the car. The action was by the father who owned the horse, to recover the value of the same.

The two primary grounds' of error assigned are: First, the verdict is against the evidence; second, the court erred in the charge to the jury.

As to the first ground, while there is some conflict in the evidence, yet it.generally tends to support the facts as we have stated them and the question that is to be determined is, “What is the duty of a motorman when he sees approaching him a frightened animal attached to a vehicle? Must he in all eases immediately bring his ear under control so as to be able to stop it at any minute, or may he go on relying on the presumption that the driver of the animal will retain eonirol of the animal and no injury will be done?”' ' .

“The rights of the driver of a horse and of the manager of an electric car meeting upon a highway are equal and each must usé the way with a reasonable regard for the safety and convenience of the other.” Ellis v. Railway, 160 Mass. 341 [35 N. E. Rep. 1127].

What is a reasonable regard for the safety and convenience of the other? The authorities differ very materially on this question. Some hold that it is the duty of the motorman to- immediately bring his-ear under control upon seeing a frightened horse approaching him, no matter what the degree of fright, while others hold that if a horse becomes .frightened at an approaching car and becomes unmanageable and runs away, injuring the driver and others, the company is not liable, unless the conduct complained of in the management of the car is attributable only to wanton or malicious disregard for the safety of the driver and occupants of the vehicle. 2 St. Ry. Rep. 642, 643, 644 and 645, note.

We think both of these rules are too broad. Very much depends ■upon the circumstances of each particular case: the age and sex 'of the driver of the vehicle; the width of the road and its condition; and many other circumstances that might be mentioned.

In a ease like the one we are considering we think the true rule is:

The failure of a motorman when running at the ordinary speed to stop or lessen the speed of a car upon observing that a horse approaching from the opposite direction is frightened, is not negligence unless the circumstances indicate that the horse will become unmanageable if the car approaches and that the driver or persons with him are in imminent peril. Terre Haute Elec. Ry. v. Yant, 21 Ind. App. 486 [51 N. E. Rep. 732; 69 Am. St. Rep. 376] ; Eastwood v. Railway, 94 Wis. 163 [68 N. W. Rep. 651]; Flaherty v. Harrison, 98 Wis. 559 [74 N. W. Rep. 360].

The case of Eastwood v. Railway, supra, is nearly parallel with the one we are sonsidering. In the opinion Mr. Justice Winslow says:

“The motorman of an electric car is not bound to slacken the speed or stop his car at the moment a horse upon the street within his range of vision begins to show signs of uneasiness; an inference of negligence is not justified from the motorman’s failure to stop the car upon seeing that a team about 175 feet in advance driven by a full-grown man, was beginning to prance, where it‘appeared that the team was in a well-traveled road at the side of a track nearly sixteen feet in width and was in perfect safety, and did not appear to be beyond the driver’s control.”

In Flaherty v. Harrison, supra, it was said:

“A street railway company cannot be chargeable with negligence' for the motorman’s failure to stop or slacken the speed of his car upon seeing that a team at the side of the track were uneasy, where the driver had full control of them until at the instant when they dashed on the track in front of the car.”

We are of opinion that the facts established by the evidence in this case are insufficient to sustain the verdict of the jury.

The objection made to the charge of the court is, that the jury-should have been instructed directly as to what was the duty of the motorman with regard to controlling his ear upon seeing the frightened condition of the horse; in other words, the circumstances under which it was his duty to slacken the speed of the car or stop it. The jury was only instructed that it was the duty both of the motorman and the driver of the vehicle to use ordinary care under the circumstances of the case or the situation in which they were placed.

We think the counsel for defendant is right, and that it was the duty of the court to have instructed'the jury directly as to what would constitute ordinary care under the particular circumstances of the case. Defendant in its requests called the court’s attention directly to this question and, while they were too broad, yet they suggested to the court that it desired a specific instruction upon the real issue in the case. Had the 'court instructed the jury as to the duty of the motorman under the' circumstances thus surrounding him and the care he should have used, it» is very doubtful if this verdict would have been rendered.

In Little Miami Ry. v. Wetmore, 19 Ohio St. 110, 111 [2 Am. Rep. 373], it is held: “A charge to the jury, though not strictly objectionable in point of law, but which leaves the jury to draw an incorrect inference from facts in the ease material to the issue, constitutes good grounds for a new trial, where it is reasonable to suppose, from a consideration of the whole evidence, that a different verdict would have been rendered if the jury had been fully instructed. The charge ought not only to be correct, but to be so adapted to the ease and so explicit as not to be misconstrued or misunderstood by the jury in the application of the law to the facts as they may find them from the evidence.”

The judgment of common pleas court, for the reasons that the verdict is against the evidence and for error in the charge, is reversed and the ease remanded for a new trial.

Burrows and Laubie, JJ., concur:


author: SULLIVAN, J.

text:
    RES ADJUDICATA — VERDICT.
    [Hamilton (1st) Circuit Court,
    November Term, 1906.]
    Wilson, Sullivan and Dustin, JJ.
    Michigan Mut. L. Ins. Co. v. Abner L. Whittaker, Admr.

      1. VERDICT CONSTRUED IN CONNECTION WITH THE RECORDS.
    Tnere being two causes of actions set out in a petition and issues being joined upon eacli, a verdict in such form as not to advise the court of the findings on the separate causes, though irregular, will not be set aside, when the meaning of the jury is clear when read'in connection with the pleadings.
    [For other cases in point, see 7 Cyc. Dig., “Trial,” §§ 687-789. — Ed.]
    ¡3. Former Holding on Same Pact Is Res Adjudicata.
    Where the circuit court reverses and remands a cause for retrial on the ground of insufficiency of the evidence, ánd' no new or additional evidence is offered on the retrial, the former holding of the circuit court) is res adjudicata on the question of the weight and sufficiency of the evidence, and no additional evidence having been offered, no reason exists for again remanding the cause for a third trial.
    [Por other cases in pioint, see 7 Cyc. Dig., “Res Adjudicata,” §§ 259-284. — ■ Kdg
    [Syllabus approved by Judge Sullivan.]
    ERROR to Hamilton common pleas court.
    Robert Ramsey, for plaintiff in error.
    C. W. Baker, for defendant' in error.
   SULLIVAN, J.

At a former term of this court — other members then sitting-proceedings in error in this cause [Michigan Mutual Life Insurance Company v. Abner L. Whittaker, Administrator of estate of John C. Dexter, deceased], upon the same record and transcript of testimony, were prosecuted by plaintiff in error, to reverse a judgment rendered against it in the court below.

The judgment was reversed by this court on the ground alleged in the motion for a new trial and the petition in error, that the verdict and judgment were not sustained by sufficient evidence, and the cause remanded for further proceedings.

A second trial was had before a jury on the same testimony set forth in the bill of exceptions taken at first trial and before this court in such former proceedings in error. The jury again returned a verdict in favor of the defendant in error, differing only from the amount of the former verdict to the extent of the accrued interest. Motion of plaintiff in error to set aside tbe verdict was again overruled and judgment entered upon the verdict.

In these proceedings we have, therefore, the same record and bill of exceptions that were before this court in the proceedings in which the first judgment of the court below was reversed. It is urged first by counsel for plaintiff in error that, the finding of the jury being on the issues joined in favor of the plaintiff below in a single sum, the verdict is irregular. There being two causes of action stated in the petition and issues being joined upon each, the jury should have returned a separate verdict upon each cause of action. That the verdict in its present form does not advise the court whether the jury found in favor of the defendant below, upon the first or upon both causes of. action. It is clear from the amount of the verdict that the jury included the full amount claimed in both causes of action, together with interest thereon for the period stated in the direction of the court. It is not necessary to look further than the pleadings and verdict to ascertain this fact.

If the meaning of the jury in its verdict is certain from its terms or becomes so when read in the light afforded by the pleadings, of which it is the duty of the court to take judicial notice, and if the judgment is in conformity with its finding, it ought not to be set aside. Fries v. Mack, 33 Ohio St. 52, 59.

“In considering the verdict itself with a view to its sufficiency, the first object is to ascertain what the jury intended to find and this is to be done by construing the verdict literally, with the sole view of ascertaining the meaning of the jury.” Miller v. Shackleford, 34 Ky. (4 Dana) 264, 271.

If the objection to the verdict was' sound, we are of the opinion the objection came too late. We, therefore, find this point by plaintiff in error not well taken.

In the former proceedings in this court, other members then sitting, the judgment entered at the first trial in the court below being reversed for error in overruling the motion of plaintiff in error to set aside the verdict because not sustained by sufficient evidence, and at the second trial the only testimony introduced being that introduced at the first trial, plaintiff in error contends that the court below should have sustained its motion to set aside the verdict and granted it a new trial because this court had adjudicated the right of the plaintiff in error to have such motion sustained upon the evidence in the record. If that adjudication was the law of the case, the motion should have been sustained. Whether the proceedings at the second trial should have been carried that far is discussed farther along. We have read the bill and briefs of counsel discussing the law and the facts, and in connection therewith the opinion of the members of this court who sat in the hearing of the former proceedings in error. The analysis of the testimony set forth in the transcript and the weight accredited thereto in that opinion is so in accord with our own convictions after carefully reading the testimony that we adopt it. It is so fair, full and thorough that any analysis undertaken to be written out here would be found nothing more than a repetition and hence of no additional value.

It follows, therefore, that we have arrived at the same conclusion that the verdict is not sustained by sufficient evidence, thus sustaining the contention of plaintiff in error on this point; for which reason the judgment must be reversed. Upon the state of the record, the question then arises, whether the cause must again be remanded for trial, or whether this court. can proceed to determine the judgment the trial court should have rendered, the ease having been submitted on the same testimony as at the first trial, and enter that judgment here. At the conclusion of all the testimony a motion to withdraw the case from the consideration of the jury to enter a judgment for the defendant below was not made.

No motion was made for a judgment in favor of the defendant below notwithstanding the verdict.

In our view neither was necessary. If the former adjudication of this eoiu’t on the weight of the evidence stood as the law of the case, then, the plaintiff below having failed to make out his case by proof, there was nothing for the jury to • consider, and the trial court of its own motion should have withdrawn the case from the consideration of the jury and rendered judgment for the defendant below. If upon the weight of the evidence in this kind of a case, this court is the court of last resort, then it is well established by almost an unbroken line of authorities that its decision in the former proceedings in error remains the law of the case. On this point we cite simply Dodge v. Gaylord, 53 Ind. 365, as a long line of authorities is cited in that case.

Remanding the case in that proceeding for another trial would then be for the purpose only of securing to the plaintiff below another opportunity to strengthen his case by additional testimony, if he could, and not for the purpose of again having reviewed by this court, the same testimony and record before it in the former proceedings; otherwise there would be no limit of the right of a party to have the same record reviewed by this court, on the weight of the evidence; and hence the salutary rule that litigation should be finally concluded would be of no force. Under the present statutes providing the jurisdiction of the Supreme Court in error, that court is not required in this kind of a case to pass upon the weight of the evidence. In its discretion it may do so, but neither party to a case of this kind has a legal right to require that court to do so.

It follows, therefore, that this court is the last court that parties have a legal right to require to pass upon the weight of the evidence and hence in that respect it is a court of last resort. Hence we are of the opinion that the trial court should have withdrawn the case from the consideration of the jury at the conclusion of all the testimony and rendered a judgment in favor of the defendant below, and not having done so, it is the duty of this court, upon the state of the record, to enter here a final judgment for plaintiff in error, as prayed for in its answer, which will be accordingly done.

Wilson and Dustin, JJ., concur.


author: PER CURIAM.

text:
    LIMITATION OP ACTIONS.
    [Huron (6th) Circuit Court,
    November, 1906.].
    Haynes, Parker and Wildman, JJ.
    James B. Swing, Tr. v. Ohio Cultivator Co.
    1. Decree of Supreme Court does hot Prevent Legitimate Defenses.
    The decree of the Ohio Supreme Court, entered in June, 1901, against the policy holders of the Union Mutual Fire Insurance Company, of Cincinnati, does not find that any one policy holder may not assert legitimate defenses in a suit instituted against him as a policy holder in accordance with said decree.
    2. Statute of Limitations as Defense to Claim Ordered Paid by Court.
    The defense that an action on such an assessment is barred by reason of the lapse of six years from and after the making of a prior assessment and notice thereof served upon the defendant with demand for payment, . is conclusive against a trustee seeking to enforce such subsequent assessment.
    [For other cases in point, see 5 Cyc. Dig., “Limitation of Actions,” 55 542-544. — Ed.]
    [Syllabus by the court.]
    Error to Huron common pleas court. •
    S. M. Young, for plaintiff in error.
    J. Vickery, for defendant in error ¡
   PER CURIAM.

The facts in this case, briefly stated, are as follows:

Suit was instituted in the court of common pleas of Huron county by the present plaintiff in error, against the Ohio Cultivator Company, based upon assessments ordered by the Supreme Court in June, 1901, against the policy holders of the Union Mutual Fire Insurance Company of Cincinnati, a corporation which, about the year 1890, was dissolved by order of the Supreme Court, and for which the plaintiff, .'Swing, had been by the Supreme Court appointed trustee. The defendant asserted in the court of common pleas that the plaintiff’s action was barred by the lapse of six years from and after the making of a prior assessment and notice thereof with demand for payment served upon the defendant. This defense was successfully maintained in the court of common pleas, which rendered judgment for defendant. To reverse this judgment the proceedings in the circuit court were instituted.

Our judgment is that the court below was right in its conclusions as to the claim of the statute of limitations asserted by defendant below, the Ohio Cultivator Company. While the findings and decree of the Supreme Court classifying the claims of creditors against the dissolved insurance company and. ordering assesments against policy holders classified according to the terms that such policies were in force cannot be collaterally impeached, this conclusion leaves as an open question the construction of such findings and decree. Our view is, that the Supreme Court did not intend to fix the liabilities of each policy holder or determine his specific defenses. True the finding of the court determines the rate of assessment which is to be made against the policy holders of the class to which the defendant belongs, but it does not find that any one policy holder of such class may not assert legitimate defenses in a suit instituted against such policy holder. If the court had contemplated the conclusive determination of the liabilities of each policy holder, there would have been no necessity for ordering suits by the receiver to collect assessments. A computation of the amount due upon each policy with an order for an execution to collect the same in case of default in payment upon notice of the assessment, would have sufficed.

The case at bar differs from that of Mills v. Whitmore, 12 Circ. Dec. 338 (22 R. 467), decided by the Hamilton circuit court, in the fact that in that case the order of the Supreme Court after fixing the classes of policy holders subject to assessment and fixing the assessment upon each class, concluded with the words: “'Subject to any defense which any individual member may have to show that he is not liable,” while no such qualification is found in the decree' of the Supreme Court, which is made the basis of this action. Notwithstanding the omission of such qualifying clause, we think that it should be read into the decree as a fair construction of the spirit and purpose thereof.

In this connection ‘ and in' support of the position which we have taken, reference may -be made to the case of Great Western Tel. Co. v. Purdy 162 U. S. 329 [16 Sup. Ct. Rep. 810; 40 L. Ed. 986], and especially to the language found in the opinion of the court, announced by Mr. Justice Gray, on page 337, as follows:

“But the order was not, and did not purport to be, a judgment against any one. It did not undertake to determine the question whether any particular stockholder was or was not liable in any amount. It did not merge a cause of action of the company against any stockholder on his contract of subscription nor deprive him' of the right, when sued for an assessment, to rely on any defense which he might have to an action upon this contract.
“In this action, therefore, brought by the receiver, in the name of the company, as authorized by the order of assessment, to recover the sum supposed to be due from the defendant, he had the right to plead the release or payment, or the statute of limitations, or any other de-/ fense, going to show that he was not liable upon his contract of subscription. ’ ’

"We are not apprised by the pleadings or the evidence as to the scope of the inquiry reported upon by the referee to the Supreme Court. It is unlikely that opportunity was given for the presentation before him of claims of specific defense such as that asserted before us. The pleadings and evidence do disclose the essential fact that in the year 1891, more than six years prior to the institution of this action, and again in 1897, a like assessment was made, not for precisely the same amount, but to cover the same losses, against the defendant. The statute of limitations applicable to liabilities of this character bars suit upon them after the lapse of six years.

If the assessments of 1897 and 1901 were on account of a further liability arising out of the fact that the assessment of 1891 was not sufficient in amount if collected to cover the liabilities to which defendant' in error was bound to contribute, then the fact that the assessment of 1891 was barred by the statute of limitations might not result in such subsequent assessments, or the entire amounts thereof, also being barred by the statute. But it appears to us from the evidence that the assessment of .1891 was designed to discharge, and if collected .probably would have discharged, all liabilities to the discharge of which defendant in error was bound to contribute, and therefore it was an assertion against him of the full and entire amount of his liability, and the subsequent assessments were merely reassessments to cover the same liability, and the purpose of making such reassessments may have been to give the claim against the defendant in error new life so that the bar thereof by the statute of limitations might be avoided; but this, we think, could not be done effectively.

We hold therefore, that the defendant below has presented and maintained a sufficient defense to the claim asserted by the trustee. Entertaining these views, the judgment of the court below will be affirmed.