text:
    (Second Circuit—Miami Co., O., Circuit Court
    Oct. Term, 1895.)
    Before Shearer, Summers and Allread, JJ.
    RAILROAD CO. v. MORRIS.
    1. Where a bill of exceptions taken under the act of March 22, 1892' (89 Ohio L. 121) is signed and allowed, and an entry authenticating the same ordered by the trial judge within the time limited by that act, such entry, if omitted from the journal, may be supplied by an order nunc pro tunc.
    2. The filing of a bill of exceptions within the time prescribed by such act is not essential to its validity, where it has been properly signed, allowed and ordered to be made part of the record-within such time.
    3. Where the record of the trial court shows the signature and allowance of such bill of exceptions, within the prescribed time, such., record cannot be attacked in this court by evidence alunde, nor-can tbe certificate of the trial judge be impeached by evidence submitted to him at the time of signing the bill of exceptions and brought upon the • record by an independent bill of exceptions; such later bill of exceptions is unauthorized:
    4. If a petition states a cause of action triable to a jury, and issues are joined upon such petition, the filing also of cross-petitions containing equitable cross-actions, does not destroy the right of the plaintiff to have a jury trial upon his cause of action, unless sueh cross-petitions extinguish or supersede the case stated in the petition.
    5. Where a member of council claims to have contracted with a railway company to enter its employ and devote substantially all his time in the general management of said company’s business with, in his city and in the procurement of rights of way extending through such city, a necessary and substantial part of which comprises cession of rights over its streets and avenues, and such mem. ber thereafter, during the term of such alleged employment, assists, as such councilman, in granting and ceding valuable rights and interests from such city to such railway company, and where such rights so ceded by such city are so connected with the subject-matter of said employment as to have a tendency to influence the action of such member of council, such contract and employment contravenes public policy, and will not be enforced.
    Error to the Court of Common Pleas of Miami County.
    The original action in the common pleas court was brought by John W. Morris against the C. H. & D. Railroad Company on December 29, 1888.
    The cause was three times tried to a jury, resulting each time in a verdict for the plaintiff. The first verdict was set-aside by the trial judge. The second by the circuit court at a former term for error in the admission of evidence, and because the verdict was against the weight of the evidence. After the cause was remanded to the common pleas court, the plaintiff below,on May 1, 1894, filed his second amended petition, which contains two causes of action. The first asserts that the C. H. & D. R. R. Co. was duly organized as a railroad company and engaged in operating a railroad from Cincinnati to Toledo and to the east, of the Great Miami river from Piqua. That tbe Piqua & Troy Branch R.R, Co. was caused, to be organized by the C. H. & D. Co. to build a connecting line to the city of Piqua. That the said C. H & D. Co. by and through its own duly authorized agents as well as by and through the said Piqua and Troy Br. R. R. Co. acting in its behalf, “on or about April 1, 1885, employed” said Morris “on and about procuring of the right of way of the said The Piqua & Troy Branch Railroad Company, and to procure subscriptions to aid in the construction thereof, and to take the general management and supervision of the company’s business at Troy, Ohio.”
    That said Morris was authorized in cases where the right of way could not be purchased, to buy entire tracts, take the title in his name or others when directed by the company, and sell the excess beyond the right of way.
    That he made the following purchases:
    Dec. 9, 1885, Kinkead Lots.............. $10,296 00
    “ 31, 1885, Sayers “ .............. 1,150 00
    June 8, 1886, Alletu “ .............. 900 00
    “ 10, 1886, Helman “ .............. 600 00
    “ 10, 1886, Puller “ .............. 800 00
    “ 14, 1886, Schaible “ .............. 150 00
    “ 15, 1886, White “ .............. 850 00
    19, 1886, Reinfried “ .............. 1,350 00
    “ 28, 1886, Whitman “ .............. 1,400 00
    16, 1886, Kinkead “ .............. 500 00
    Aug. 11, 1886, Leffel “ .............. 905 00
    Sep. 8, 1886, McKaig “ .............. 500 00
    “ 27, 1886, McKaig “ .............. 750 00
    28, 1886, Barnett Condemnation........ 1,086 70
    Peb. 23, 1887, Morris Lots.............. 450 00
    Nov. 11, 1887, Cruikshank “ .............. 2,100 00
    Morris gives credit as follows:
    June 9, 1886,.......................... $ 7,650 00
    July 3, 1886,............................ 2,550 00
    June 12, 1887, Sale of Puller House and lot... . 596 50
    Nov. 26, 1887, Sale of Out Lot 40.......... 400 00
    “ 10, .1887, Sale of Lots 44 and 129...... 1,500 0Ó

      Sept. 10, 1888, Sale of Lots 43 and 44.. . .'. . 2,500 00
    Nov. 26, 1887, Sale of Lot 323............ 450 00
    After adjusting interest Morris claims $9,515.00 due him.
    For a second cause of action he asserts that on or about April 1, 1885, “he entered the service” of the C. H. & D. Co. “in the employment of procuring the right of way for the location, construction and operation of the Piqua and Troy Branch Railway, and of securing subscriptions from those supposed to be interested in the construction of said road to aid in the construction thereof, and in the general supervision and management of said defendant's business relating thereto at Troy, Ohio, and remained in the employ of said defendant from that date on, and continuously on, until December 26, 1888; and that while so employed rendered great and valuable services to said company, procuring for it a large portion of said right of way which, otherwise, said defendant would not have been able to secure but at vast expense: secured them many and valuable subscriptions, managed their business in and about all matters relating to the procuring of said right of way and said subscriptions; and did and performed for said defendant (C. H. & D. Co.) all and singular the duties required of him, and devoted almost his entire time and attention to it for the period of three years and eight months.”
    He alleges these services to be worth $13,000.00.

    He avers that he tendered to the C. H. & D. Co. good and sufficient deeds for all of the lands not disposed of, conveying them to the P. & T. Br. Co. which the C. H. & D. Co. refused to accept, but took possession of the lands and appropriated them to its own use.
    He also alleges various other tenders of conveyances to the C. H. & D. Co., some of which are brought into court as continuing tenders. He alleges that the C. .H. & D. Co. refuse to accept such deeds or, in fact, any deed.
    The C. H. & D. Co. by its answer: first, enters a general denial, except as to the corporate existence of the railroad companies.
    Second — Sets up that the said rights of way were-procured for the P. & T. Br. Co. under a written contract of date of May 19, 1886, for the sum of 110,200, and that said contract has been fully performed on the part of said railroad company, and said rights of way fully paid for.
    Third- — That said Morris,during said alleged agency, was a member of the council of the city of Troy. That the construction of said railway necessarily involved the acquisition from such council of valuable rights and franchises in the streets and avenues of such city over which said right of way necessarily extended, and^that Morris was active in the introduction and passage of certain resolutions and ordinances securing such right of way.
    The C. H. & D. Co. and the P. & T.' Br. Co. each filed cross-petitions, setting up the contract of May 19, 1886, and Morris’ failure to comply therewith, and praying for a specific performance thereof.
    The reply of Morris:
    1st. Attacks the good faith of the organization of the P. & T. Br. Co.
    2nd. Alleges the contract of May 19, 1886, was never intended to be a contract, and was never acted upon as such. That he ‘ ‘ proceeded to acquire said rights of way under his verbal contract of employment” with the C. H. & D. Co. “as if said alleged written contract had not been entered into.”
    3rd. Alleges said contract of May 19th did not cover the right of way already secured.
    1th, That said alleged contract of May 19th was signed after he had performed services and purchased real estate which defendant had appropriated.
    5th. Denies that he agreed to aid in the procuring of any rights or franchises from the city, or that he ever became ■obligated to do so. That lie never did so under any contract of employment, or that any act of his while a member •of council was then of value to said defendant.
    6th. That long prior to his employment it had been determined that Hydraulic avenue should be opened up and appropriated for the use of any railroad company which would build a railroad on it to the Troy Hydraulic and thence to a 'Chicago connection, and the fact that said plaintiff was a member of council was not in contemplation by either party. That before said contract of employment, C. C. Waite, Y. P. ■and General Manager of the C. H. & D. Co., having represented to the council that if granted the right of way over the streets and alleys of said city, such company would build to ■a Chicago connection, and thereby secured a pledge from the city council and each individual member thereof, individually and collectively, to grant such right of way whenever the. route of such company was denfinitely fixed, and that “whatever was done by plaintiff in council afterwards was merely formal and in compliance with said pledge and agreement, and solely in the interest of said city. That he has never expected, claimed or received any pay therefor, nor now expects, claims or desires any pay for it, and denies that he was ever employed by said defendant or by any person or corporation to procure any right of way over the streets and alleys of said city for any railroad whatever. ’ ’
    Separate demurrers were filed by each of the railway companies, which were overruled.by the court.
    The defendant thereupon moved, the court for a trial to the court without the intervention of a jury, which the court refused, and proceeded with a jury to try the case.
    At the conclusion of the plaintiff’s testimony the defendant moved the court to discharge the jury and render judgment for the defendant.
    1st. Because the contract claimed by the plaintiff was illegal and void.

      2nd. It was in contradiction to the written contract of May 19, 1886.
    The motion was overruled and exceptions were taken by the defendant.
    The trial thereupon proceeded, and resulted in a verdict for the plaintiff upon both causes of action.
    A motion for a new trial was made in due time and overruled, and a bill of exceptions taken.
    At the time of the allowance of the bill of exceptions by the trial judge, counsel for plaintiff below presented in writing 118 objections to the bill, some of which were supported-by affidavits.
    Some of these objections were sustained, and the bill corrected; the others were overruled, and the bill signed. To this action of the court in allowing the bill, the plaintiff below excepted, and within fifty days had allowed a bill of exception to the action of the trial court in allowing such former bill of exceptions.
    A cross-petition in error was filed in this court by Morris, among other things attacking the allowance of the bill of exceptions of the plaintiff in error.
   Allread, J.

We do not deem it necessary to discuss all of the numerous questions presented in the record or suggested by counsel. Those only which are considered important will be adverted to.

The validity of the bill of exceptions taken upon the trial of the cause is challenged upon the grounds following:

1st. That it was not properly presented:, allowed and authenticated.

2nd. That it does not purport to embody all of the evidence.

3rd. That the bill of exceptions as allowed is not true.

To sustain the claim that the bill of exceptions was not properly allowed or authenticated, it is proposed to show that the trial judge was not present in Miami county on the date of the journal entry, and hence could not and did not make the order authenticating the bill of exceptions.

Without deciding whether it is necessary for the trial judge to approve or. allow the entry of authentication in open court, it is sufficient in this case that it appears from the record, as certified, that the order was made in open court and is regularly on the journal of that court; hence the remedy, if any, is by application in the court below in the first instance to strike such entry from the journal. Sedam v. Meeksbach, 6 C. C. 219.

No extrinsic evidence can be received' here to dispute the record. Heddleson v. Hendricks, 49 Ohio St. 297; Sedam v. Meeksbach, supra.

It is further contended that the bill of exceptions was not allowed by the court or filed within the time provided by law.

The facts shown by the record are that the bill was presented to plaintiff’s counsel on the thirty-third day after the overruling of the motion for a new trial, and to the trial ■judge on the forty-first day thereafter, who extended the time for allowance ten days beyond the fifty days by endorsement on the bill.

On the fifty-ninth day after the overruling of the motion for a new trial, the bill was signed by the trial judge. On the evening of the succeeding day it arrived by express in the city of Troy, Miami county. The clerk’s office being closed, and the messenger not being able to find the clerk, the bill was retained until the following morning when it was deposited with the clerk.

On the same day, being the sixty-first day after the overruling of the motion for a new trial, an entry authenticating the bill of exceptions was placed on the journal, which,among other things, contained the following: “And thereupon said court on the 11th day of March 1895, allowed said bill of exceptions, and did thereupon sign the same and ordered it to be made part of the record of the case. * * This entry is in fact made the 13th of March 1895, (being the sixty-first day), and this day spread upon the journal, but by order of the court through the telegram hereto attached, is placed on the journal as of March 11, 1895.”

Section 5302 requires the bill to be alllowed and signed (where the ten days extension is allowed) within sixty days after the overruling of the motion for a new trial and provides: “The bill of exceptions shall be filed with the pleadings * * * and an entry of the allowance and signing of the same must be entered upon the journal within the time provided for such allowance and signing.’

The former practice required the journal of the court to be kept open for thirty days after the trial term adjourned, and that the entry of authentication be entered thereon as of the term.

It was then held that a compliance with this section was necessary to make the bill of exceptions available. Hill v. Bassett, 27 Ohio St. 597; Burk v. Ry. Co., 26 Ohio St. 643.

But it was held that where the order authenticating the bill was actually made within the proper time,the trial court had power thereafter to substitute such entry nunc pro time. Bothe v. Ry. Co., 37 Ohio St. 147; Mitchell v. Thompson, 40 Ohio St. 110; Toledo v. Preston, 50 Ohio St. 361; Cleveland Leader Printing Co. v. Green, 52 Ohio St. —.

The provisions of the act of March 22, 1892, concerning the entry of authentication, made to conform to the amendments as to time for allowing the bill, ought not to be construed so as to charge the party excepting with the duty of having the entry actually entered upon the journal.

When he procures his bill to be signed and allowed, and the order of authentication actually made, it becomes the duty of the clerk to enter it upon the journal, and if he fails to do it, the party ought not to be without remedy.

This provision, therefore, of section 5302, does not, in the opinion of the court, supercede the power of the court to make the entry of such order of allowance nunc pro tunc.

That, in our judgment, is the effect' of this entry, and we are bound to presume from the state of the record that the trial judge had before him, such state of facts as justified the entry of the order nunc pro tunc, and therefore such entry has the same effect as if it had been entered upon the journal on the 11th day of March, 1895, which was within the time provided by law for the allowance and signing of the bill.

The filing of the bill of exceptions within the time for allowance, etc., is not essential to its validity. Section 5302 has not been materially changed as to its construction in that regard since the decision of Patterson v. Mayer, 31 Ohio St. 103, which holds that the mere omission to file the bill with the clerk during the term will not invalidate it. It is there said that “when duly perfected and ordered to be made part of the record, it is in law to be regarded as part of the record, whether it come into the actual possession of the clerk during the term or not.” The expressions used by the learned judge delivering the opinion in the case of Young v. Shallenberger, 34 W. L. B. 166, were made with reference to the facts of that case, and do not conflict with the doctrine announced in Patterson v. Mayer, supra.

It is also claimed that the various exceptions complained of not having been reduced to writing at the time, are not available herein the absence of an order giving time “to reduce the same to writing not beyond fifty days after the overruling of a motion for a new trial.”

If the provisions of section 5298 alone governed, a strict construction might justify0such contention, but when taken in connection with the provisions of other sections relating to bills of exceptions, we can not see how such construction can fairly be given.

Prior to the recent amendments section 5298 provided, “The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exceptions to writing, but not beyond the term.”

Section 5301 then provided that in cases where the decision was not entered on the record or the grounds did not sufficiently appear in the entry,or the exceptions were to the opinion of the court on a non-suit, or upon a motion for a new trial, etc., “the party excepting must reduce his exceptions to writing, and present it to the court for allowance.” Section 5302 required the court, if the exceptions be true or after correction, to allow and “sign it before the case proceeds, or, if the party excepting consents, within thirty days after the term.”

In the case of The State ex rel. Otenberger v. Hawes, 43 Ohio St. 16, exceptions were taken during the progress of' the trial, and also after the verdict, to the overruling of a motion for a new trial. Counsel being unable to complete their bill of exceptions before the adjournment of the court, requested an extension of thirty days, and that the journal be kept open for the purpose of perfecting such bill. This-was denied on the ground that the trial judge wished to break up the lazy habit of postponing of bills until the last day of the term. On the same day the court adjourned. The bill was presented four days later, and the trial judge refused to allow it.

Johnson, J., deciding this question, says: “The effect of section 5302 is to extend the time for the performance of this duty (i. e. signing and allowing of the bill of exceptions) within thirty days after the term, with the consent of the exceptor. * * We hold that the relator upon the facts stated, had the same right to .present his bill within the thirty days as he had during the term, and that it was the duty of the court, if the bill be true, or, if not, then after it is corrected, to allow and sign the same.”

If the provisions of section 5298 as it then stood had controlled, and if the construction contended for here had been given, the trial judge there would not have been compelled to sign the bill of exceptions after the term. But, as there held, the provision of sections 5301 and 5302 imperatively required him to sign a true bill within thirty days after the term.

The recent amendments do not destroy the force of the Hawes case as a guide in the construction of the provisions of these sections as they now stand. The purpose of these amendments was to better secure to the parties, reasonable time and opportunity for the preparation and examination of the bill of exceptions taken during the progress of a trial; and in cases where, as provided in section 5301, “the decision is not entered on the record or the grounds of exception do not sufficiently appear in the entry, or the exception is to the decision of the court on a motion to direct a non-suit, or to arrest the testimony from the jury, or for a new trial for misdirection by the court to the jury, or because the verdict,- or if the jury is waived, the finding of the court is against the law and the evidence, or for the admission or rejection of evidence,5 ’ and the exception is not reduced to writing during the progress of the trial, the party excepting is entitled to fifty days from the overruling of a motion for a new trial, in which to have his bill of exceptions allowed by the trial court, subject to the conditions prescribed therein of presenting it to the opposite counsel within ten days, and to the trial judge within five days preceding the expiration of the fifty days, and subject also to the power of the judge to grant an extension of ten days beyond the fifty days.

In the case of Young v. Shallenberger, supra, these sections were considered, and it was there held that the trial court had discretionary power under section 5298, to fix a shorter period than fifty days for reducing the exceptions to writing, but that the time for the allowance of the bill as fixed by sections 5301 and 5302, can not be reduced by the court. And an order of the court fixing the time for the signing and allowing of the bill was construed as fixing the time for reducing the exceptions to writing.

In the case at bar the court did not limit the time for reducing the bill to writing, and in the absence of such order the full statutory period would be allowed, subject to the condition of presentation to counsel and the court within the prescribed time prior to the expiration of the fifty days.

It is next insisted that the certificate of the trial judge does not show that the bill' of exceptions allowed upon the trial is a true bill, or that it embodies all the evidence in the case. The certificate of the trial judge attached to the bill of exceptions is as follows:

“And the defendant therupon prays the court here to sign and seal this its bill of exceptions, and order the same to be made a part of the record in this cause, but not spread upon the journal; all of which is done and ordered this 11th day of March, A. D. 1895.“
“Before signing this bill of exceptions I call attention to the matters complained of by plaintiff’s counsel in 118 objections to said bill, filed February 22, 1895. As to some few of them my own memory sustains said counsel, and I have at different places in said bill made emendations in my own hand writing. Other matters I call attention to here, there not being any place left for their insertion in the body of the bill.
“1st. Said bill does not show the fact that upon the trial of this case in the month of November, 1894, after the impanelling of the jury, and before the offering of any oral testimony, the court sent the jury under the charge of the court constable, P. J. Goodrich, under the usual cautions, admonitions and instructions of the court, to which no exceptions were taken by either of the parties to this case, to view the locality of the line of railroad known as the Piqua & Troy Branch B. B.. Also the various pieces of property claimed to have been purchased by the plaintiff, for the defendant. Also the way and manner in which said railroad is located upon said lands, and also the location of said railroad with reference to the east bank of the Troy Hydraulic canal. That said jury did in fact under charge of said constable, view the said premises, and that no exceptions were made by either of the parties to this case to the manner of said view.
“2nd. It does not sufficiently appear in said bill that during the trial there was produced and read to the court certain documents alleged to be under the control of the defendant, which motion had been heard to another judge of this court, previous tc this trial, and found by him to be true,and an order made by hin} for their production,and the further order of this trial judge upon this third trial of this case, for their production before the court, and of the failure of the defendant to have produced some of those called for by plaintiff, all of which ought to have been inserted in full at the point marked by asterisks, or rather x’s, on page 250 of this bill. I only remember the substance, but not all of the details of said matter.
“3rd. It is my recollection that the charges of the court upon the second trial of this case, were not offered in evidence in this third trial, and how they appear, I do not know, except being attached to the bill of exceptions of the second trial, they inadvertently crept in, and they must therefore be eliminated from this bill.
“4th. There are certain crudities in the bill as to what the court ruled on some few occasions, but I do not attempt to correct them for the reasons which will immediately appear.

Having gone through the entire list of objections,and examined this bill with reference thereto I am not able to state from memory whether or not there are other enlargements or emendations of the record in said bill, the trial having continued through five weeks, and there having been almost continuously, cross-remarks between opposing counsel, and I could not undertake to tell what further corrections, if any,I could make without the aid of both stenographers, Miss Edgar for the defendant, and Mr. Grosvenor, the court stenographer in this case, with their original notes to compare with each other, and as I have spent all the days and late at night since the bill came into my hands until now, at the close of the sixtieth day, there Is no time left for that. Therefore except as herein allowed and corrected, each and every of said objections of plaintiff’s counsel are overruled by me, to which ruling each and every one exceptions were taken by said plaintiff’s counsel. Counsel on both sides except to said corrections, defendant’s counsel because not being correct, and plaintiff’s counsel because of their not' being full enough as they claim in some particulars, and said plaintiff’s counsel also excepts for the further claim that the bill ought not to be signed at all, as not having come into their hands within the time limited by law, which they offer certain affidavits to support.

“And now counsel ask me to fix a time not exceeding fifty days from this date for the preparation, allowance and signing of a bill of exceptions to the various matters now here done by me, including the signing of this bill, and accordingly the court fixes the 30th day of April, A. D. 1894, as said limit of time, being fifty days from this date.
“Signed and sealed this 11th day of March, A. D. 1895.
“John C. Miller, Judge of the Court of Common Pleas, and trial judge in the above entitled case. ’’ (Seal.)

This certificate is somewhat involved and obscure. The first and third statements, however, may be fairly construed to correct the bill of exceptions in the particulars named.

The second statement relates to a proceeding for the production of certain documents which the defendant below failed to produce. The proceedings were before the court, and were not evidence in the cause. It is not alleged by either party as prejudicial error. The plaintiff below obtained the order he sought, and, of course, could not complain so far as the action of the court is concerned. The defendant below failed to regard the oi’derfor the production of the papers. It wras the duty of the plaintiff below to resort to the remedies provided by statute in such cases, and if the trial court would then refuse to act, he might be prejudiced. We are unable, as the case stands, to see how the proceedings before the court necessarily belong in the bill of exceptions.

The trial judge suggests in his fourth statement that there are certain crudities in the bill, and undertakes to make a statement of what those crudities are. He says that he has gone through the entire list of objections made by the plaintiff below, and examined the bill with reference thereto, and is not able from memory to state any enlargements or emendations to the bill, and could not undertake to tell whether any further corrections could be made without the aid of both stenographers to compare their original notes, and not having time for that, he overrules further objections to the bill. We think by an examination of this statement the crudities suggested by the trial judge are artificial. He sees proper to set forth upon the record the amount of energy, and patience and time,'"and care given to the examination of the bill, and in substance says that having used all the time afforded him by the statute, he is unable to state wherein the bill of exceptions might be enlarged or corrected. It is certainly not for us to say that it still would have been the duty of the trial judge to have procured the assistance of b.oth stenographers and compared their notes. The trial judge himselfJraving discharged this duty to his satisfac* tion, having exhausted the time given him by law in its examination, and having then overruled all objections except where corrections were made, and having signed and certified the bill, and caused an entry of allowance to be placed upon the journal, it is not our duty to say in contradiction to his certificate and the journal entry of the court, that the bill is not a true bill.

Counsel for the plaintiff below, at the time their objections were presented to the trial judge, undertook to sustain the same by the affidavits of counsel and others, and when their objections were overruled and the bill was signed, the plaintiff below excepted, and thereafter attempted to perfect and have allowed against the objection of plaintiff in error, a bill of exceptions purporting to be their exceptions to the action of the trial judge in allowing as true, the bill of exceptions taken upon the trial of the case.

There is no authority for such latter bill of exceptions. Such practice would lead to great confusion. Bills of exceptions if such practice prevailed would be taken to the orders allowing each successive bill of exceptions ad infinitum.

The certificate of [the"trial judge that the bill is true, is conclusive. State ex rel. Hawes v. Beckman, 4 C. C. 246; State ex rel. Atkins v. Todd, 4 Ohio, 351.

Having disposed of these objections to the bill of exceptions, we may now consider some of the more important errors claimed by the plaintiff in error as a ground for a reversal of the judgment.

The plaintiff in error requested the trial judge to discharge the jury and proceed to try the cause.

It is clear to us that the issues made in the cause upon the petition were triable to a jury. While it is true that the cross-petitions were equitable in their nature, yet they did not extinguish or supercede the case made in the petition. Buckner v. Mear, 26 Ohio St. 514.

The main grounds of error claimed by the plaintiff in error are: First, that the contract as claimed by the plaintiff below is against public policy; and, second, that the contract as claimed by the plaintiff in error is not supported by the evidence. The question of public policy is made by the record in various ways, mainly, however, by the demurrer to the replies, the motion filed by defendant below to take the case from the jury and for a judgment in their favor upon the close of the plaintiff’s testimony, and by the charge of the court. It is not entirely clear that the question of public policy is fairly raised by the demurrer to the reply, and we will therefore consider the case as it stood when the defendant below made its motion at the close of the plaintiff’s testimony. It will be remembered that the plaintiff below sought to recover for moneys expended and for services rendered under a contract made about the month of April, 1885. He claims that from the time he entered the employ of the defendant below, he devoted substantially all his time and energy to the securing of the right of way from West and Clay streets in the city of Troy,through the city of Troy northwardly to a point some distance beyond, known in the history of the case as ‘ ‘Statler’s south line. ’ ’ That these services continued for something over three years. Morris was a member of the council of the city of Troy from April, 1885, until April, 1887. That, beginning in April, 1885, until April, 1886, Morris was active in council in securing to the Piqua & Troy Branch, rights of way over the streets and alleys of the city of Troy. He introduced and supported a resolution to open up Raper street and Hydraulic avenue. Proceedings were instituted to widen Raper street to meet the demands of the-company. Morris introduced and supported and voted for resolutions and ordinances extending and opening up Hydraulic avenue soutiiwardly and eastwardly to meet the proposed line of railway, at a cost to the city o'f from six to eight thousand dollars, and granting to the Piqua & Troy Branch Railway Company without cost rights of way thereon. He introduced and supported an ordinance granting rights of way over Market, Mulberry and other streets to such railway company. From the very nature of the case these rights of way acquired from the city, were of prime necessity to the railway company. From the correspondence introduced during the testimony of the plaintiff, it appears that the acquisition of these franchises from the city was the foundation for any steps whatever being taken by the company to build the road. The letter of Morris to Waite, dated October 7, 18S5, estimates the cost of the right of way at $12,-000. but he says: “At a meeting of city council (last night) an ordinance was adopted, granting the right of way to T. & P. B. R. R. over Raper street and all streets crossing from West street to Garfield avenue. A resolution was also adopted, requiring proceedings to be immediately instituted on behalf of the city to condemn property to open streets and avenues from West street to Main street. This will be done at the expense of the city, and if successful, the estimate (above $12,000) will be reduced probably $5,000, leaving the amount for damages and right of way from West street to township line about $7-, 000. 3 3 From that time on it was assumed by Waite, representing the railway companies, and Morris, that the city of Troy would condemn and open Hydraulic avenue at the expense of the city, so that the cost to the railway company would be reduced to $7,000.

Morris in his letter of November 15, 1885, says: “I have had a hard struggle to accomplish what has already been done — -right of way on Raper street, building of avenue, etc. - — and to accomplish more would, in my judgment, be impossible. ” And then proceeds to state what had been done as to the acquisition of other rights of way. It having been discovered that Raper street was only twenty feet wide, the railway company insisted upon a right of way sixty feet wide. In that connection Morris, in his letter of December 9, 1885, says: “Now Raper street is but twenty feet wide when opened, and acting upon your telegram, I introduced last night and had passed an ordinance changing the line of the avenue sixty feet in width to St. Clair avenue, so as to have it terminate near the junction of Plum and Grant streets.3 ’ The letter of February 9, 1886, of Morris to Waite, also carries out the same idea, to-wit: that the railway company was insisting upon their franchises from the city as the foundation of their proceeding in the matter of constructing the road.

Now, if we adopt the theory contended for by the plaintiff to support his causes of action, that from April, 1885, on, he was in the employ of the railway company, it would be to assume that Morris was engaged in serving two masters. As a member of council he would represént the interests of the city, and as an agent of the railway company he would be interested in securing these franchises from the city upon as favorable terms as possible. These attitudes were inconsistent. The city was entitled to the benefit of his unbiased judgment, his energy and his business capacity as a member of its council. The granting of these franchises to the railway company was an important transaction on behalf of the city. The question, therefore, is: is such contract against public policy? It is said by high authority: “In law as in morals, it may be stated that as a principle, no servant can serve two masters, for he would either hate the one and love the other, or else he would hold' to the one and despise the other. ’ ’

It is well established in all the repdrted cases that a contract against the policy of law will be given ‘ ‘ no countenance or assistance in fori civili.'' ’

Lane, J., says, in the case of Spurgen v. McElwain, 6 Ohio, 444: “The principle is of general application that contracts contrary to sound morals, public policy, or forbidden by law, will not be executed by courts of justice,”

It is said by Lord Mansfied: “No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.” And again in the same case (Cowp. 341) “whenever an agreement appears to be illegal, immoral, or against public policy, a court of law will leave the parties as it finds them.”

It is not material in this case to inquire whether the franchises actually granted by the city were beneficial to the city or otherwise. It is not a question as to whether the contract was a good or bad one, but the courts look only at the tendency.

Greenhood, in his work on Public Policy, on page five, says: ‘ ‘ The question of the validity of the contract does not depend upon the circumstance whether it can be shown that the public has in fact suffered any detriment therefrom, but whether the contract is in its nature such as might have been injurious to the public.”

In the well considered case of Piatt v. Longworth, 27 Ohio St., which involved a sale made by an administrator to a relative, the administrator having some secret interest, Johnson, J., says, on page 195: “In such cases the court will not suffer itself to be drawn aside from the application of this equitable rule by any attempt on the part of the purchasers to establish the fairness of the purchase,because of the danger of imposition and the presumption of fraud, inaccessible to the eye of the court.

“The policy of the rule is to shut the door against temptation in cases where this relationship exists; it is of itself deemed sufficient to create the disqualification. The sale will be set aside, not because there is fraud, but because there may be fraud.”

This principle is well stated by Elliott, J., in the case of Elkhart County Lodge et al. v. Curry, 98 Ind. 208: “A wholesome rule of law is that parties should not be permitted to make contracts which are likely to set private interest in opposition to public duty or to the public welfare. * * * It is not necessary that actual fraud should be shown, for a contract which tends to the injury of the public services is void, although the parties enter into it honestly and proceed under it in good faith. The court does not inquire into the motives of the parties in the particular case to ascertain whether they were correct or not, but stop it when they ascertain the contract is opposed to public policy, nor is it necessary to show that any evil was done by or through the contract. The purpose of the rule is to prevent persons from assuming position where selfish motives may impel them to sacrifice the public good to private interests. ’ ’

The evil tendency of a contract with a member of council to assist a railway company in the procurement of rights of way over the streets and avenues of the city its apparent.

And as stated by Williams, J., in the case of Kahn, Jr. v. Walton, 46 Ohio St. 207, quoting from Lord Mansfield: “If from the plaintiff’s own stating, or otherwise, thejcause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says, he has no right to be assisted., It is upon that ground that the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. ’ ’

So that in the case at bar, whenever it appeared from the plaintiff’s own stating, or otherwise, that the cause of action was against public policy,it was the duty of the court to dismiss the action. It is, however, claimed by the plaintiff beT low to avoid the question of public policy, that it had been determined by the council of the city of Troy, and even by the council of the village of Troy before it became a city, and by each member of the council individually, that HyT draulic avenue was to be dedicated and devoted to railroad purposes, and that the action of Morris in supporting and voting for these various resolutions granting rights of way, was merely formal and in compliance with such previous agreement. There was no agreement by the council of the village of Troy, or of the city of Troy, which would have required absolutely, the passing of these ordinances. Whatever may have been the individual agreement of the members of the council, it would not have prevented the council when in session and acting as a body, from refusing to grant these franchises. McCortle v. Bates, 29 Ohio St. 419.

It was the duty of such members of council to exercise their best judgment when the matter came before them in session, and whatever may have been their previous views or agreement, they had a right to change their mind and vote in accordance with their then judgment. Fuller v. Dane, 18 Pick. 472.

The more serious question in this connection is, whether public policy would prevent recovery of moneys advanced for rights of way as claimed in the first cause of action. The rule is laid down that where a contract is supported or based upon two or more considerations, if any one of them be opposed to public policy the contract is void, unless so much ■of the promise as is based distinctly and solely upon the good consideration is separable from the remainder. Green-Rood on Public Policy, page 17.

In the case of Widoe v. Webb, 20 Ohio St. 431, it is said that, “When however, fora legal consideration, a party undertakes to do one or more acts, and some of them are unlawful, the contract is good for so much as is lawful, and void for the residue. Whenever the unlawful part of the contract can be separated from the rest, it will be rejected, and the remainder established. But this can not be done when one of two or more considerations is unlawful, whether the promise be to do one lawful act, or two or more acts, part of which are unlawful; because the whole consideration is the basis of the whole promise. The parts are inseparable. * * * * And it has been said with much force, that where parties Rave woven a web of fraud or wrong,it is on part of the duty of courts of justice to unravel the threads and separate the sound from the unsound. ’ ’

In the case of Spurgeon v. McElwain, supra, the builder of a building to be devoted to the keeping of a nine-pin alley, (which was unlawful), was not allowed to recover, on the grounds that it was an erection sui generis whose ordinary use in such places is unlawful, and that it would thereby tend to aid the owner in an illegal action, and therefore ought not to be assisted by the law.

In the case of McQuade v. Rosecrans, 36 Ohio St. 442, it was held that the consideration of a mortgage was entire, and a portion being illegal, the court would not aid in its foreclosure even for the legal part.

It was also held in the case of Sullivan v. Hergen (R. I.) 20 Atl. 232, that where a clerk was employed in running a grocery and tending bar, (tending bar being illegal), the clerk could not recover quantum meruit for his services in conducting the grocery part. The contract being illegal, was entirely void.

The contract; therefore, set out in the second amended petition, providing for Morris’ services and for expenditure of moneys in acquiring right of way from West and Olay streets in the city of Troy to Statlers’ line being inseparably connected with the service and efforts of Morris as a member of council, and having a tendency to influence his action as such member of council, was contrary to public policy, and the doctrine “ ex turpi causa non oritur actio” applies.

The consideration being entire, it is not our duty to separate the sound from the unsound, but the Court will leave the parties where it finds them.

So far, therefore, as the evidence tended to support the contract set out in the petition,it was manifestly insufficient, for the cause of action which it tended to support arose ex turpi catisa.

But upon an examination of the whole record in the case we can not arrive at the conclusion that a verbal contract existed as claimed by the plaintiff.

To allow evidence of such verbal contract to be considered by the jury, it must appear either

(1) That the written instrnment of May 19, 1886, was nota contract, or

(2) That the subject-matter of the verbal contract was not included in such written contract or any of its modifications.

We are not unmindful of the rule which imposes upon the jury the duty of weighing conflicting testimony. But how stands the case upon the testimony of the plaintiff weighed in connection with the correspondence, contracts and documents introduced and submitted by him?

We do not deem it necessary to take up the different items of correspondence in detail, between Morris and Waite (representing the railway company,) and others which necessarily formed the res gestee in connection with the written contract in this case.

All of the documentary evidence, all of the correspondence between Waite and Morris and Judge Sullivan, point with reasonable certainty to the truth and good faith of the-contract of May 19, 1886. The negotiation proceeded step by step in natural and usual ojder. The parties were dealing at arms length and in an adversary way. If the contract was intended as a blind, why all this dickering in private letters between Morris and Waite?

After several months conferring verbally and by letter, Morris writes to Waite on March 10, 1886, foreshadowing the written contract and settling the adversary character of their negotiations. He says: “In your letter to Mr. Sullivan and .in your congratulatory dispatch to me, it seems-impossible to satisfy your mind that $7,000 furnished by the railway company, and the $3,200 subscribed by citizens is sufficient to secure the right of way and damages, from. West street in Troy to Skinner’s south line. You, therefore, seem to insist upon ‘a guarantee. ’ * * Now, to settle this question of ‘guarantee,’ I submit for your consideraion he following: I will myself give bond in he sum of one hundred thousand dollars to save the company harmless against any further expenditure of money than $7,000, provided the said company will place the amount of $7,000, together with the amount (represented good beyond question) of the subscriptions of citizens in the hands of W. H. H. Dye, Mr. Allen, The First Natonal Bank of Troy or any responsble depositary in trust to be paid to me as needed in settling for said right of way and damages. I believe this is substantially your proposition when here. I will accept of it — this contemplates a line of road within the options heretofore taken by me and with a view of running by Allen & Wheeler’s mill. Should A, & W. fail or neglect to make satisfactory arrangements, I will agree to procure the ‘Hydraulic line’ to Statler’s south line and give bond accordingly.’’

This letter Mr. Morris, in his testimony (on page 140 o "bill of exceptions) says was in good faith,and was intended to mean what it stated, and was not written as a blind. He says, however, that it was not acted upon.

It is true that it was not acted upon as a contract, but it was a step in the negotiations which led to the contract of May following; and being in good faith and in harmony with the purposes of the May 19th contract, it is an invaluable aid in determining whether the culmination of their informal negotiations was also in good faith.

Following this letter and the reply of Waite, Morris makes the draft of the contract of May 19th, which was submitted to Waite and Ramsey, and a modification appended. Morris signed the contract, and also the modification, and procured a guarantee to be signed by W. H. H. Dye and others. The contract and modification and guarantee were submitted to R. D. Marshall, president of the P. & T. Br. R. R. Co., who, before executing it on behalf of the company, wrote what is known as his letter- of construction of the contract. This letter of construction was accepted by Morris in writing, and the contract was executed by the company.

On September 17, 1886, the contract was again modified by releasing Morris from furnishing right of way north of the countynroad, forming Mrs. Dye’s south line.

The manner and formality attending the execution of this contract and its various modifications, together with the purpose expressed on its face, are inconsistant with the claim that it was. intended merely to deceive the public.

This question was presented to and considered by this court at a former term, and, among other things, it was said by Stewart, J., in deciding the case: “The contracts and letters between the parties wholly disprove the claim of the plaintiff that this was not the real contract between the parties, and indeed to accept the theory of the plaintiff’s counsel we must find not only that he and‘Mr. Waite were engaged in deceiving the public, but in deceiving each other as to the deception.”

Morris, however, (page 151, bill of exceptions) says of the contract of May 19th: “That the purpose for which that writing was intended was in good faith, and if they had constructed the road with reference to this writing and the purpose for which it was drawn, there would have been no trouble here.”

In all the subsequent letters of Morris, as well as in his receipts for the consideration, this writing is referred to as a contract, and its terms the basis of liability of the parties.

We cannot conceive of any reason or pretext for the letter of construction of Marshall for the modification of September 17th, consistent with the claim of this contract being a blind to deceive the public; and it seems Morris undertook to give none. He says (page 168): ‘‘There was trouble and controversy, and I did not know what the result might be in the fix I was in having signed that paper, and that’s the result of that paper of September 17th, or the paper is the result of that feeling. ” The effect of that is, as we understand it, that although claiming the writing of May 19th was intented as a blind, yet there being trouble and controversy about it, Morris, in order to secure the modification of Septeraer 17th, was willing to and did sign that as a contract. We do not consider how far this might be an affirmance of the contract of May 19th, but refer to the admission and failure to give any satisfactory explanation of the modification of September 17th, as confirming the position taken by us as to the contract of May 19th. Into the contract of May 19th was merged all questions concerning the right of way therein stipulated for.

It is contended that for the services of Morris and money expended in purchasing property not included in the written contract, he is entitled to recover.

The contract of May 19th requires Morris to “furnish” this right of way for a sum therein specified; and his services, as well as money expended in procuring this right of way, would be necessarily included in the contract price, and it would be inconsistent for Morris to assert a claim for services independent of the contract.

The material question, therefore, is: did Morris procure rights of way or make purchases not included in the contract? The right of way provided for in the contract is a continuous way from West and Clay streets in Troy to Statler’s south line on or near the Hydraulic, subject to the modification of September 17th.

We think the road was built and rights of way secured on the line contemplated in the written contract. Morris, however, claims for the price paid for the Kinkead and Sayer lots which were purchased prior to the execution of the written contract. He asserts that he made these purchases under a prior verbal contract. These tracts were much wider than needed for road way purposes, and it was claimed that Morris was to buy these tracts, take the title in his own name; the necessary amount was to^be used for right of way, the remainder was originally intended for depot purposes; but Morris denies he was authorized to sell the excess beyond the right of way, and account to the company.

Without going into details, we think this claim is clearly inconsistent with the letters and~the contract.

Waite, in his letter to Sullivan, calls his attention to the fact that in his estimate of cost of right of way the Morris’ (i. e. Kinkead and Sayer) land was left vacant. Morris, himself, answers this letter by his of March 10, 1886. If the Kinkead and Sayer's purchase was governed by a different contract, Morris would hardly have omitted reference to that fact in his letter, but instead of so doing, he, in line with Waite’s idea,proceeds to draw up a contract which provides for Morris receiving pay from the company for a fifty foot strip across these tracts. In the letter of R. D. Marshall accepted by Morris, and which formed a[part of thejcontract of May 19th, it was provided that the brick [house on the Kinkead property should not pass to the railroad company, but should be removed by the company, free of expense to Morris, to the portion of the lot north of said way.

Afterwards, and without the assent of the" company, in fact without consulting it, Morris barters the remainder of the Kinkead property, subject to the contract of[May[19th, for western land.

This was inconsistent with the claim of Morris, and taken in connection with the provisions of the contract, it is clear to us that no such verbal contract was made or could have been asserted if made.

As to the contention that the contract of May 19, 1886, was not acted upon or carried out, we may say the evidence shows the contrary. Morris received the contract price, $10,200.00, and receipted for it as in full for contract of May 19, 1886, and except as to the modification of September 17, 1886, Moiris fails to show wherein the company failed to carry out the contract. It appears that the company acted under this contract and its various modifications. Morris also acted under it.

It therefore follows that the written contract of May 19, 1886, was the only contract between theplaintiff and the P. & T. Br. R. R. Co., which was acting for the C. H. & D. Co., and that the evidence fails to support the verbal contract claim, and on that ground the verdict is against the manifest weight of the evidence.

But it appearing from the pleadings and the testimony of Morris, together with the exhibits introduced as a part of his testimony, that the alleged contract claimed in the plaintiff’s petition was in violation of public policy, the trial court erred in not granting the motion of the plaintiff in error', and dismissing the action as requested.

W. M. Ramsey, H. H. Williams, Robert Ramsey and A. F. Broomhall, for plaintiff in error.

Byrkett & Gilbert, Calvin D. Wright, T. B. Kyle and Clyde & McPherson, contra.

The judgment of the common pleas court will therefore be reversed, and this court proceeding to render such judgment as the court of common pleas ought to have rendered, it is ordered that said motion be sustained and the petition dismissed.


source: Caselaw Access Project

author: Bentley, J.

license: Public Domain

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1894.)
    Before Bentley, Scribner and Haynes, JJ.
    THE TOLEDO ELECTRIC STREET RAILWAY COMPANY v. THE WESTERN ELECTRIC LIGHT AND POWER COMPANY et al.
    1. The owners of a line of poles used to support wires for conveying electricity in a muncipality, may so devote and use said poles as to subject them to the power of the municipal authorities, in providing reasonable regulations regarding them, to authorize their being used to support the wires of other parties, upon payment or tender of the reasonable value of said use, without proceedings in the probate court to appropriate the right of said use.
    2. Prior to the Act of 1886, municipal councils were not authorized, by reason of their general control of streets, to grant the absolute right to erect and maintain electric light poles in the streets of the municipality.
    3. The power of municipal authorities under the act of 1886 to impose reasonable regulations governing the erection and maintenance of lines for the transmission of electric light and power within the limits of the municipality, is a continuing power, and under it, a requirement that the poles of such lines may also be used to support electric wires of parties other than the owners of such lines, upon making proper compensation, may, where such added use does not materially interfere with the business of such owners, be reasonable and valid.
    4. Such poles erected in the streets of the city prior to the act of 1886, or prior to a grant by the city of the right to erect and maintain them, are to be considered as in the streets by sufferance only, of the municipal authorities, and may be subjected to such reasonable regulations as the council may impose.

      5. Where the owners of such line of electric light poles and the parties to whom the municipal authorities have granted a right to use such poles, are in a court of equity for the determination of the amount of reasonable compensation to be paid by the latter party, such latter party will be adjudged to pay all ordinary costs in such action.
    6. Whether the fees of a stenographer taking the testimony before a special master commissioner in such case will be allowed as costs, query.
   Bentley, J.

I will say at the start that the condition of the plaintiff’s pleadings in this case, of course, is not such as to permit them to be commended as models for a basis upon which to carry forward the inquiries which we have finally permitted in the case; but the parties were before us, and as we thought we discerned in the pleadings the controversy which they really had, we formerly entered an order in the case respecting the injunction that had been allowed by the court of common pleas, and subsequently referred certain matters to a referee. We have concluded that the matter should be settled in the present case, and by a decree of the court.

Several of the important questions arising in this case were considered at some length when, on a former occasion, the motion to suspend the operation of the injunction granted by the common pleas was presented to us, and our views regarding them were stated when we allowed that motion. Thereafter, in consonance with those views, we ordered a reference for the ascertainment of certain facts which we considered it proper and necessary to know in finally determining the case, the proofs regarding which, but for the reference, we should have heard here in court on the trial. Our investigation of the case since its final submission has necessarily led us through the same fields as those traversed before, as well as others, and we are still impressed with the correctness of the general conclusions already announced, and that the pleadings present a basis for the inquiry as to what particular poles the plaintiff seeks to use, the owners and condition of the same, whether they are in the streets under such circumstances that the qity may lawfully grant to an electic lighting company other than the present owners and ocupants thereof, n.náin invitum as to them,the right jointly with them to use such poles to string electric wires upon for lighting either public or private buildings with electricity; whether the plaintiff has been lawfully granted such right by the city authorities, wherever such joint use is practicable, and if so, the amount which the plaintiff should pay for such use before entering upon it, and to whom payment should be made.

The defendants urge that if such use of their poles can be acquired, it must be by proceedings for appropriation in the probate court, and that a court of equity would have no jurisdiction of the case to determine the amount, unless by some contract, express or implied, the defendants have waived, forfeited or granted away their common law right to hold their property exempt from such seizure until it has been regularly appropriated under the statute in the probate court, and its value assessed by a jury, and paid. And, in the sense in which we construe it, this proposition is correct, and this leads to the inquiry which lies at the main root of the controversy, whether by voluntary act, viewed with reference to the facts and laws, these defendants have subjected their property to the liability of being thus practically taken without the compensation therefor being ascertained by a jury.

To determine this, a brief review of the laws bearing upon the matter will be requisite. It seems to have been always assumed by the legislature that municipal authorities would not have authority under their general powers as to streets,to allow telegraph, telephone and electric light poles to be placed in the streets, and from time to time statutes have been passed conferring upon them certain powers in this respect. And in this connection I call attention to the sections of the Revised Statutes from 3454 to 3471 a inclusive.

And in 5 Ohio Circuit Court, 340, it was held by the Circuit Court of Hamilton county, that until the act of May 12, 1886, municipal corporations had no power to allow in the streets poles and structures for electric light and power purposes. This holding has the apparent sanction of the Supreme Court, since it affirmed the judgment of the circuit court in that case, but without report.

The act of 1886 now appears in Smith & Benedict’s Statutes as section 8035-233, and provides as follows:

“That a company organized for the purpose of supplying electricity for power purposes and for lighting the streets and public and private buildings of a city, village or town, may manufacture, sell and furnish electric light and power required therein for such and other purposes, and such companies may construct lines ,for conducting electricity for power and light purposes, through the streets, alleys, lanes, lands, squares and public places of such city, village or town by the erection of the necessary fixtures, including posts, piers and abutments necessary for the wires, with the consent of the municipal authorities of the city, village or town, and under such reasonable regulations as they might prescribe. Provided, that all wires erected and operated under the provisions of this act shall be covered with a water-proof insulation, and said poles,piers, abutments and wires shall be so located and arranged as not to interfere with the successful operation of existing telephone and telegraph wires.”

It becomes important to consider the scope and meaning of the words “with the consent of the municipal authorities * * * and under such reasonable regulations as they may prescribe. ’ ’

It is evident that this power of regulation is something more than the city might exercise under its general authority over the streets, since if it means no more than that, the insertion of those words in the. statute would have been unnecessary, which the rules for the interpretation of statutes will not permit us to presume. Do these words confer the power to allow other electric companies to share in the use of such poles and structures when it would be practicable, and to prescribe reasonable terms and conditions upon which the added use may be had;? In this connection I will call attention to the case already mentioned of Brush Electric Light Co. v. Jones Bros. Electric Light Co. et al., 5 O. C. C. R. 340. In that case, after the court had announced what I have already mentioned, that there was no power previous to this act to entitle municipal authorities to grant the right to use the street for these purposes, on page 343 the court say this:

“There is nothing whatever to show, that after power was given to the municipal authorities to make such grant, any action required by these two sections was taken. And it is difficult to see how the alleged grant of this franchise is to become valid and binding on the city, or the public, by a mere acquiescence of the public authorities in its use for a while, when the statute is express that it can be granted in but one mode.
“But there is no such proof of continued acquiescence on the part of the municipal authorities as justifies the claim of the plaintiff. It is shown that on the second of November, 1889, the Board of Public Affairs directed the'city engineer “to withdraw all permits to erect electric light poles, heretofore used, until further orders;” and on November 3, 1889, such board by resolution provided that they would permit only one line of poles for electric lighting or power purposes, to be erected on any one street. And the board also provided thereby, among other things, that where any street was already occupied by such line of electric poles, that it would allow the company to whom the prior permit was granted, to maintain the line of poles, and would authorize any other company to which a permit had been granted to occupy portions of such territory, to use the poles already on the street, under the terms of the general ordinance of the •city. And in a subsequent clause it is provided that when a street is so occupied, tbe second company applying for the privilege, will be authorized, so far as the chief electrician and chief engineer may deem the same practicable, to occupy the iines of poles of any other company that may be upon the street * * * under the terms of the general ordinance.
“This general ordinance referred to is dated October 18, 1889, and contained substantially similar provisions, and fixed the terms upon which other companies might use the poles of the company which had erected them, viz: by paying a fair proportion of the original cost of the erection thereof, and a monthly rental equivalent to a fair proportion of the cost of the erection and maintenance thereof.
“Under this action of the Board of Public Affairs and of tbe council, it is shown that the plaintiff company has obtained permission to erect by far the larger number of its poles now in the streets of the city, and that the defendant companies have also received like permits, and particularly that they have been authorized by the Board of Public Affairs and its engineer to occupy the poles of the plaintiff, the use of which by them, the plaintiff company is seeking to enjoin, and have offered to comply with the terms fixed by the ordinance. It would seem, then, from the statements, that the plaintiff company is occupying the streets of the city, not under a valid or irrevocable grant, but by the mere license and permission of the municipal authorities, and which license is coupled with the condition, impliedly at least, accepted and acted upon by such company, that other companies to which like permits should be granted, should have the privilege of stringing its wires thereon. Can it claim not to be bound by this condition?”

And further on, at the bottom of page 344 and top of page 345, the court say:

“But tbe resolution of the Board of Public Affairs, under which the plaintiff company is now operating, made it a condition that the poles erected by it, should be subject to the use of other companies, to whom permits to occupy portions of such territory had been granted. And such permits have been given to these two companies, as is conceded, and this would seem to estop the plaintiff from saying that they are not so authorized. ’ ’

On page 346 is this paragraph:

“It seems to us manifest that it is, and it should certainly be the law, that the right to decide as to the use of the streets of a city by the corporations of this character, should be entrusted to the municipal authorities, and the use thereof by such companies, in the language of the statute, should be ‘under such reasonable regulations as they may prescribe.’ The idea that any number of such companies may erect their poles in the streets as they please, of course cannot be tolerated. It would be destructive to the interests of the public. It would seem that the regulations and provisions under which these companies are now using the streets of the city are reasonable and proper — but if not, it can only be said that the plaintiff has accepted the license subject to those terms, and must abide by them, so far as this case is concerned. ”

And thus they hold, it seems to us, that there being no authority prior to the act of 1886 for the municipal authorities to grant this right to use its streets for this purpose, if for any reason, or under an ordinance, (as there was one passed in that case,) poles had been erected in the streets,and were existing at the time that the act of 1886 was passed, these poles, under such circumstances, must be regarded as existing in the streets by the mere sufferance of the city authorities and that therefore they might require them to be removed as being there without authority, or they might annex to their maintenance there, such conditions as the municipal authorities might deem it be reasonable.

In that case it would seem that the permit which the court held effective and binding was not a permit of the council itself by a valid ordinance, since the ordinance which was passed seems to have been conceded to be invalid on account of some informality in its passage, but the permit was the permit of the Board of Public Affairs, without which, to be sure, a valid ordinance could not be passed, but which in and of itself has no power to pass a binding ordinance. This permission had been granted by such a board in that case, and the court hold that the companies having allowed their poles either to be erected under that permit, or having maintained their poles afterwards without any permission at all, it must be held that they were occupying the streets subject to the -regulation of the Board of Public Affairs. The court, as seen, deals somewhat with this statute as to interpretation, and in the last paragraph the court say, “The use, therefore, by such companies, in the language of the statute, should be ‘under such reasonable regulations as they may prescribe. ” And the indication is that if these regulations had been reasonable, they would have bound these companies as to these poles, although they had not specially consented to them or bound themselves to abide by the regulations.

In this connection I also call attention to the case of the Kinsman Street Railway Co. v. The Broadway & Newburg St. Ry. Co. et al., 36 Ohio St. 239. , I will read from the opinion, beginning at the bottom of page 250, where the court say:

“While we think that it was not within the power of the municipal authorities, by such agreement, to confer upon the plaintiff the right to use these streets for railroad purposes, to the exclusion of all other persons or corporations, if the public welfare or convenience should require a further similar use; we also think that no such exclusive right was intended to be conferred. If an exclusive privilege was intended, it should have been expressed, and we find in the ordinance and resolutions relied on, not only the absence of such expression, but, on the other hand, a different intention indicated. In the ordinance of September 20, 1859, it was declared that “any company organized for the purpose of laying down rails and running street passenger cars to be drawn by horses or mules through the streets of Cleveland, shall be guided, governed and regulated by the conditions (therein expressed) and such restrictions as the council may hereafter pass. ” And in the resolution of October 25, 1859, containing the grant of right to the plaintiff specially, it is provided that the right is granted “under the terms and conditions prescribed by said ordinance” (of September 20., 1859), “or which may hereafter be prescribed by the city council.” And a like stipulation is contained in the subsequent resolutions authorizing a change of route. We have no doubt, that under the power thus stipulated for (if such reservation had been at all necessary) the municipal authorities might at any time thereafter (if it'was thought the public convenience required it) grant the like privilege to another company to use and occupy the same streets, and indeed the same route, for railroad purposes, to be used in common with the company or companies to whom the privilege was first granted. ”

And on page 252:

“When, therefore, a right of way for street railroad purposes is granted over the same route to another company by the municipal authorities, the private property of the former cannot be appropriated by the latter company until compensation is first paid by the latter to the former company. And, in the absence of a stipulation to the contrary, it is quite clear to our minds, that the municipal authorities had no more power to fix the amount of the compensation that ■should be paid by the latter to the former company for the right of the joint use of such material, than it has to determine the compensation to be paid to other owners of private property taken for the same public use. In such case, if no ■agreement be made between the companies as to the matter of compensation, or the same be not assessed by a jury as in other cases of the condemnation of private property to public uses,the latter company should be enjoined from the forcible appropriation.
“But in this case we find a stipulation to have been made; namely, that the plaintiff would lay its tracks under the terms and conditions prescribed by the ordinance of September 20,1859,or which might thereafter be prescribed by the city council; and, also, that the East Cleveland Street Railroad Company (a corporation then in existence) should be allowed the use of the plaintiff’s track upon reasonable terms, to be prescribed by the council, unless agreed upon by the parties. The right of the council to prescribe ‘terms and conditions’ in the future, it seems to us, was sufficiently broad to cover a future exigency like the one then existing, and specially provided for; namely, an exigency arising from the necessity to provide for the public welfare by running the cars of other street railroad companies over the track of the plaintiff. And this being so, the only question remaining is, was the condition as to the compensation to be paid by the Broadway & Newburg Company to the plaintiff reasonable? In other words, was the compensation, as fixed by the council, fair and adequate? Upon this question issue was joined, but no testimony offered. The burden of showing its inadequacy rests upon the plaintiff. Under these circumstances, the injunction prayed for must be denied.”

A study of that case will show this: that the particular stipulation that the council might itself fix the compensation, did not apply, and was not made to apply especially to the company in question,but to another company; and the judgment must be supported upon the idea that the agreement that the council might prescribe terms and conditions was sufficient authority for the council, in fixing ‘terms and conditions,” to fix what was regarded as a reasonable compensation for the use of the property thus appropriated.

In the present case the ordinances which have been received in evidence do not go to the extent that the ordinances did in that case, but in that case there was no such statute as applies here; and the terms of the statute of 1886 in this respect seem to us as full and as ample as the provisions o£ the ordinances in this case in 36 Ohio St. So that here, instead of placing and maintaining the poles in the street under an implied agreement by accepting some ordinance allowing the council to fix terms and conditions for placing and maintaining them, the defendants maintain them under the general provisions of the law of the state, which would allow the council to permit them to be placed and maintained iii the streets under such reasonable regulations as the city authorities might impose.

The question as to some of these poles, at least, is, whether the power thus given in the statute of 1886 is to be regarded as a continuing power, or whether it must be exercised, if exercised at all, in fixing terms and conditions at the time that a permit is given to the companies to occupy the streets. If it is such a continuing power of regulating, does it so involve the power to fix reasonable terms upon which another company may use the poles, and justify the imposition of such reasonable terms upon the companies at any time for maintaining those poles? We have, upon such study as we have been able to give to it — and we have given a great deal —come to the conclusion that this statute in that respect is one that has a continuous operation. In view of the fact that the council has no power to grant an exclusive right in the streets, in view of the terms of the statute itself, in view of the public exigencies that must necessarily arise and may be supposed and presumed to arise, and should have been within the view of the legislature at the time it passed the stat ute, we must conclude that this provision of the act of 1886 is so continuing in its nature and scope that the council may regulate the use of these poles from time to time. Such regulation, of course, must always be reasonable, and must be had with a view to the rights and equities of those maintaining the poles.

As to this branch, we think the case in 55 N. W. Rep. cited by counsel may be of service. This was a case where the Supreme Court of Michigan finally enjoined the use by a subsequent company of the poles of the persons who had placed them in the streets before that; but in the course of the argument the idea upon which the court seemed to act all through finally appears. I call attention to a paragraph beginning on page 454, in which the’court say this:

“ Defendant Sands claims that there was a committee of the council empowered to act in the matter after this resolution was passed, and such committee could fix the manner of the use.

There was a provision, simply, that they might use the poles already in the streets under the direction of a committee of the council.

“The committee was known as the ‘street lighting committee, ’ but nothing appeared of record in the proceedings of the common council empowering this committee to act or to make any regulations for the use of the poles. It is contended, further, by the defendant Sands, that after the resolution was passed, he called upon the president of the complainant company, and was told by him to designate any poles he wished to use for public lighting, and he could use them, and that he would be charged in proportion to the number of wires used; and that, acting under this, and the direction of the committee, he attempted to put up the cross arms, when he was stopped by the injunction. There is no claim, however, on the part of the defendant that any arrangement was consummated with Mr. Hart,president of the company, as to the manner of the defendant’s use of the poles, or the manner of stringing the wires. The committee of the council who directed Sands to go on with the work and use the complainant’s poles,do not pretend that any regulations were adopted or the manner of their use fixed by the committee,or how many wires were tobe placed on the poles, or where located. There can be no doubt that under the charter provisions the common council had the power to pass the ordinances above set out, and to grant the franchise to the complainant, with the resolutions therein contained. After this was done, however, and the complainant had erected the poles, the council could not, by this resolution, do what was attempted to be done there, without first fixing in a definite way the use which it was attempted to confer upon defendant Sands. The power to make such reasonable regulations for the use of the poles is lodged by the statute in the council, and cannot be delegated to a committee. The language of the statute is that such corporation shall have power to lay, construct, and maintain, conductors for conducting electricity through the streets, etc., ‘with the consent of the municipal authorities thereof, under such reasonable regulations as they may prescribe.”

These are almost identically the words used in the Ohio statute in 1886. On page 455 the court proceeds:

“We are not able to say from this record that a joint use cannot be made of the poles by the Sands company and the complainant. If such joint use appeared conclusively to us to be dangerous, we should unhesitatingly set the ordinances and resolutions aside, granting to Sands any use of the complainant’s poles. We are not, however, satisfied upon that point, and shall in the present case only decide the resolution unreasonable, as not providing proper regulations for a joint use. ”

The court proceeds to hold that on account of a want .of provisions for definite regulations, that the parties could not go on and use the poles already in the streets, and the concluding paragraph is as follows:

“For the reason pointed out, the decree of the court below must be reversed, and decree entered here in favor of complainant, restraining defendant, Sands, from using its poles until the city, by its council, shall, after notice to the parties interested, adopt suitable rules and regulations for such joint use.”

In effect the Supreme Court of Michigan held that under a jirovision almost identical with the words of the Ohio statute of 1886, the council had the right and power to provide that existing poles in the streets might be used by another company or person for its or his electrical purposes; it holding in the particular case that there was a defect in the proceedings, not because the council has no power to grant it under those terms, but because they had not provided reasonable regulations, and that that must be done by the council; that the committee to which'this matter was referred had no power to exact any terms, or to fix them, and that, in fact, they did not fix them, but under the terms granted by the committee, the defendants might go on and use all of the poles that Sands had put in the streets, to the utter exclusion of Sands, and without any regulations"whatever. But the case in this respect is in line with our conclusion regarding the scope and effect of this statute of 1886, viz: that it confers a power and a continuing power upon the common council, to provide that another company may use the poles already in the streets, where it is practicable, and to fix the terms.

It was necessary, in order to sustain the plaintiff’s case as to all these poles, to find an underlying power of this nature that would affect all of the poles which were sought to be taken. That is, there were some of these poles that were not erected under the permission given by the officers of the city; some of them were erected by the Consolidated Company, and some of them had been in the street before that time; and it was sought to take some poles to which these permits accepted by the Consolidated Company, could not apply. Of course, the foregoing reasoning would affect all poles sought to be taken. There would be this additional reason in the matter of the poles which had been erected under the permits granted by the city civil engineer and superintendent of the fire alarm telegraph, that the Consolidated Company, having accepted that permission, had under it erected certain of its poles. As to the poles thus erected, whatever may be said as to the absolute authority of these officers to finally fix the rules and regulations under which the poles might be erected in the streets, yet they did assume to fix certain terms. In the Cincinnati case the Board of Public Affairs fixed certain terms under which it would permit the occupancy of the streets. It had no power in and of itself, and alone, to pass upon this matter finally, and yet the circuit court in that case, and apparently with the sanction of the Supreme Court, hold that that being the only permit under which the particular poles were erected, it was not competent for the parties themselves accepting those terms' to say that they erected the poles without any conditions, and were not bound by the conditions which they had accepted. So we think that, so far as the poles were erected by the Consolidated Company, it was in apparent acquiescence with and under the terms of its permits, and after they had been obtained, it must be presumed that they acquiesced in the permission, whatever it was, and agreed to its terms.

But it is said now, even if this were true, that this regulation here is improper and inadequate, because the municipal authorities themselves — that is, the city council — have not regulated'these matters, and that the case in Michigan would apply, and render these proceedings on the part of the plaintiff improper, This case differs from that in several respects as to the matter now under consideration. In the case there, it is said that the council had not conferred upon the committee any power whatever to make any regulations. In this, by a specific ordinance, the council had granted to these two officers of the city the power to grant these permits and to make certain designations in the permits. In that case it was said that there was nothing to prevent the defendants from utterly excluding the former owner of these poles from their use. In this case it is not sought by the plaintiff to have an exclusive use, but the application is for a joint and equal use of the poles. By the authority granted to the plaintiff by the ordinance in this case, there is this restriction: They can use the poles existing in the streets only in case the same is practicable; and under that term “practicable” we think there is quite a range of inquiry. If parties had already set in the streets certain poles which they were rightfully and lawfully using, it certainly could not be. held to be practicable for any officer or any authority to oust such parties entirely from the use of the poles, and give them exclusively to the applying person or corporation. In this case not only must the permits be given by two officers supposed to be skilled in matters of this kind, in the first place, but after the erection of the structures, and after everything is supposed to be ready for use, then there must be an inspection by these city officers, under the direct authority of the city, and they must certify in writing before the use commences, that these structures thus placed are proper and practicable. Under guards of this kind, we are unable to see that the same state of circumstances is presented as in the Michigan case. So wje think that there is a right and a power, under certain conditions and restrictions, for the plaintiff to acquire the right to use these poles.

We referred to the referee certain questions that it would be necessary for us to pass upon. I will first state, however, a little more directly, that m our view of the matter, in erecting these poles, or continuing to use them after the passage of the law in 1886, the companies owning them not only devoted them to public uses,but having erected or continued the use of them under the statute, that they thereby gave the municipal authorities the right of a continuous reasonable regulation.

Theymust be held to have acquiesced in that, and to have put their poles in the street,and maintained them there, with reference to that power, which might at any time be exercised. We,are not certain but that the council, and we think, under the holding in 36 Ohio St., that the council, perhaps, might have provided, either by itself or some agency, some manner of fixing the compensation in the first place; and that if that had been paid or tendered, the parties’ right to go into the use would have been perfect, in case the compensation thus fixed was reasonable — leaving, of course, the right to the owners of the poles to have objected, and to apply to a court for the purpose of determining that question.

We regard this case here as one of this sort; the plaintiff had the right, under certain circumstances and reasonable regulations, to go into a joint use of these poles,[if it were practicable, yet it was its duty, first, to attempt, in the absence of any regulation by thejcouncil allowing’it to fix compensation, to agree with the owners respecting the compensation; and that failing, it was not necessary for the plaintiff to go into the probate court, as in a condemnation proceeding, but it might apply to a court of equity to determine the rights of the parties in this regard. So this court, acting under that view of the case, referred the question of compensation, as well as certain other facts which we ought to know, to a referee. The referee has reported, among other things, that it is practicable to use these poles as is suggested and asked. And we take it, that that being practicable, the use is reasonable, and that it will not improperly or unjustifiably interfere with the use which the defendants may make of the poles. He has reported the ownership of the poles, the present use to which each pole is subjected, and what he finds is a reasonable compensation for the use which the plaintiff seeks. We have seen no reason for disturbing any of the findings that the referee has made in these respects.

• And now, if we are right in these propositions, it follows that if the plaintiff shall pay or tender the amount of this compensation thus fixed, which we must deem reasonable, and shall pay such of the expenses and costs as the court may adjudge, it will have a right then to enter upon this use. It will be remembered that this use must still be had under the continual and continued supervision of these two officers, and before anything can be done by way of using these structures, they must certify that the structures are proper and practicable and reasonable in effect.

The decree of the court will be entered as thus outlined — > confirming the report of the referee, finding these amounts to be the reasonable compensation that must be paid, and that upon its actual payment or tender, and the payment of the costs to be adjudged against the plaintiff, it may enter upon this use of these poles specified in the report of the referee.

As to the matter of costs it is to be considered that in this case the proceeding in this court is largely of the same nature that a case for appropriation would be,if prosecuted in the-probate court; and there, if the petitioner cannot agree with the-opposing party as to the value and as to the use and the taking of the property, he must apply to the probate court, and there such proceedings are had as shall fix the amount of compensation, and then he must pay it, and he must pay the costs of the proceeding when thus ascertained. And in analogy to what the statute provides, and perhaps in fairness and justice, the plaintiff should pay all the costs that would be necessarily and properly made in a proceeding of this kind. We have considered whether or not there were any of these costs that the court should pick out and differentiate, that would not come under this general statement now made. To be sure, this case has been fought with great tenacity, and it has been denied that tliere is any such power which the court has found to exist; but ihat controversy has employed more the efforts of counsel than it has the augmented the actual costs that would be taxable in a proceeding of this kind. The things that we-referred to the referee, for instance, were matters that it was necessary for him to find, and it was necessary by reason of the paintiff’s application here to fix them; and we think that the costs made before the referee were fairly and necessarily and properly made in determining the questions that were submitted to him. And the costs of this court — -the taxable costs — would necessarily be attributed largely to the same matter of contest between the-parties. We have therefore come to the conclusion that the-plaintiff should pay the costs of this proceeding which are-taxable. The costs that would be ordinarily taxable in a case if it were in the probate court will be included in this-order. What expense there may be by way of stenographer, whether that might or might not be taxable as costs in this-; case, we have not determined. As we referred this matter to the referee, he perhaps would have been justified in writing out this testimony in long-hand; but we are not at all certain but that’he might have been justified in employing a clerk to write in long-hand. We understand that a stenographer was in fact appointed or acted in the matter, perhaps by the concurrence of the parties. The statutes as to stenographers as applying to this court are in a very deplorable state, and how much of those costs would be taxable in our court it is difficult to say. If not directly taxable, whether or not they should be all taxed against the plaintiff is something we have not discussed at great length, and it is a matter that is still open.

John F. Kumler and Hurd, Brumback & Thatcher, for plaintiffs.

Doyle, Scott & Lewis, King & Tracy, B. B. Kinhade and Baker, Smith & Baker, for defendants.