author: PARKER, J.

text:
    EXPLOSIVES — MUNICIPAL CORPORATIONS — EVIDENCE.
    [Wood (6th) Circuit Court,
    November 28, 1903.]
    Parker, Hull and Haynes, JJ.
    William W. Walter v. Bowling Green.
    1. MUNICIPAL ORDINANCE PROHIBITING TRANSFORATION OP EXPLOSIVES THROUGH Street not Inconsistent With Lan. R. L. 10622 (R. S. 6953).
    A municipality has power under the statutes of this state, not only to regulate, but to prohibit absolutely the transportaion of nitroglycerine through its streets; and an ordinance prohibiting the same is not inconsistent with the provisions of Lan. R. L. 10622 (R. S. 6953).
    2. A Fine op $100 for Violation op Such Ordinance not Unreasonable.
    An ordinance prohibiting the storage of nitroglycerine within the corporate limits of a municipality or its transportation through the streets thereof, and imposing a fine of $100 for the first violation thereof, is not unreasonable, nor is the fine excessive.
    3. Hearsay.
    Information acquired by a police officer from a third person, as to the amount of nitroglycerine transported over a certain street by defendant, etc., in violation of a municipal ordinance, is inadmissible in evidence under the hearsay rule.
    ERROR to Wood common pleas court.
    Beverstock & Donahey, lor plaintiff in error:
    A municipality does not have the authority or power to absolutely prohibit the storing or transportation of nitroglycerine; their power is limited to regulating the transportation of the same, and fixing the quantities which may be transported or stored. Section 1692 Rev. Stat. (repealed 96 O. L. 96) ; Lan. R. L. 10622 (R. S. 6953) ; Hays v. St. Marys (Vil.), 55 Ohio St. 197,198 [44 N. E. Rep. 924].
    The legislature, at the time of the passage of the ordinance in question, had not conferred upon municipalities the power to impose a fine or imprisonment for the violation of Sec. 1692 Rev. Stat. (repealed 96 O. L. 96) ; Whitcomb v. Springfield, 2 Circ. Dee. 138 (3 R. 244) -, Knoxville (City) v. Railway, 83 Iowa 636 [50 N. W. Rep. 61; 32 Am. St. Rep. 321]; Nevada v. Hutchins, 59 Iowa 506 [13 N. W. Rep. 634]; State v. Bright, 38 La. Ann. 1 [58 Am. Rep. 155]; St. Paul v. Laidler, 2 Minn. 190 [72 Am. Dec. 89 and note]; 96 O. L. 21; Alliance v. Joyce, 49 Ohio St. 7 [30 N. E. Rep. 270]; Sigler v. Cleveland, 4 Dee. 166 (3 N. P. 119); Canton v. Nist, 9 Ohio St. 439; Thompson v. Mt. Vernon, 11 Ohio St. 688.
    P. J. Chase, city solicitor, for defendant in error.
   PARKER, J.

(Orally.)

In this ease an affidavit was filed with the mayor of the city off. Bowling Green, Ohio, charging the plaintiff in error, William W. Walters-with violating a certain ordinance which prohibited the conveyance of nitroglycerine through the city. Various proceedings were had attack--ing the affidavits, etc., that we need not give attention to. The matter-finally came to a point where the plaintiff in error entered a plea of not guilty, the evidence of certain witnesses was adduced, and he was convicted and sentenced to pay a fine of $100 and stand committed to the workhouse at Toledo until the fine. and costs were paid. He prosecuted error to that judgment in the court of common pleas, the judgment was there affirmed, and he now prosecutes error to this court. He contends that the conviction is wrong, and the proceedings erroneous for various reasons:

First, because the ordinance is invalid, it being' prohibitive; his contention being that the council was without authority to pass a prohibitive ordinance upon this subject; that it only had authority to regulate; second, that the penalty is excessive and unauthorized; third, that the conviction is against the law because it is not supported by competent evidence; and fourth that the proceedings were erroneous because the court admitted certain hearsay evidence over his objection, and subsequently refused to rule it out, but considered it; that this evidence was important and its admission and rejection was prejudicial to the plaintiff in error.

We will discuss these questions in the order we have mentioned them.

Is the ordinance invalid for the reasons stated? It is pointed out to us that Lan. R. L. 10622 (R. S. 6953) provides as follows:

“It shall be unlawful for any person, firm or corporation, to manufacture the substance or material known as nitroglycerine, or any compound thereof, or to store the same in quantities exceeding one hundred pounds, within the limits of any municipal corporation, or within eighty rods of any occupied dwelling or public building, or without giving bond as hereinafter provided to pay any damages caused by the explosion of said substance. Within thirty days after the passage of this act, any and all persons, firms or corporations heretofore engaged in the manufacture or storage * * *, shall give bond in the sum of $5,000, with good and sufficient surety, to the county commissioners of such county with such surety or sureties as shall be approved by such county commissioners, conditioned for the payment of all damages that may be caused to persons or property by any explosion of any of said substance. And it shall be unlawful for any person, firm or corporation to transport or carry said substance in any package not having written or printed upon two sides thereof, in plain and distinct letters, the words ‘nitroglycerine-dangerous,’ or in any vehicle or water craft upon which any passenger is, at the same time being conveyed, or in any vehicle upon the two sides and rear end of which there shall' not have been printed, in plain distinct letters, large enough to occupy a space two inches wide by eighteen inches long, the words ‘nitroglycerine — dangerous.’ And anyone convicted of a violation of this section, either as principle or servant, agent or officer of such person, firm or corporation, shall be fined not more than $1,000, or imprisoned not more than three months, or both.”

Now it is urged that because this is not a prohibition but a regulation of the uses of nitroglycerine, its manufacture, storage, transportation, etc., an ordinance of a municipality going further, going beyond this, is obnoxious to it and in conflict with it, and therefore invalid. 'This argument proceeds upon the theory that since one is not prohibited by this statute from storing nitroglycerine within the limits of a municipality so long as the quantity stored does not at any time exceed a hundred pounds, that therefore the statute is permissive to that extent, and is a limitation of the authority of the municipality. We do not agree with this contention; we do not think it is intended to be so.

I shall, before closing, call attention to some remarks upon these provisions of Lan. R. L. 10622 (R. S. 6953) by our Supreme Court. But proceeding further, counsel contend that there is no express authority to municipalities to prohibit the storage in or transportation through a municipality, of any nitroglycerine, that'is to say, of nitroglycerine of any quantity whatever. Counsel for the state relies upon the authority given by subdivisions three and fourteen of Sec. 1692 Rev. Stat. (repealed 96 O. L. 96.) That section contains an enumeration of the principal powers of municipalities, and among other powers the village council is given authority to provide by ordinance, “to prevent injury or annoyance from anything dangerous, offensive or unwholesome, and to cause any nuisance to be abated;” and “to regulate the transportation and keeping of gunpowder and other explosive and dangerous combustibles, and to provide for license magazines for the same.” It will be observed that paragraph fourteen explicitly mentions “explosives” and that the authority given by that paragraph is not to prohibit the transportation or keeping of explosives, but to regulate the same.

It is conceded on bebalf of the city that under that paragraph standing alone, this ordinance which is prohibitory cou[d not be sustained, and on the part of the plaintiff in error it is contended that paragraph three is not intended to cover the subject-matter specifically covered by paragraph fourteen, and, further, that the only lawful method for the enforcement of .paragraph three, is by appropriate proceedings to abate the nuisance which by that paragraph the council has a right to prevent or cause to be abated.

We are cited to the case of State v. Bright, 38 La. Ann. 1 [58 Am. Rep. 155], and St. Paul v. Laidler, 2 Minn. 190 [72 Am. Dec. 89], in support of the proposition that a municipality has only such powers as are expressly given to it by statute, or, as is said in some states, where the general statute does not constitute their charter, such powers as are expressly given to them by the terms of their charters, and there can be no question but that is the rule, and unless we can find express authority for enforcing the provisions of paragraph three of Sec. 1692 Rev. Stat. by an ordinance imposing a penalty, then these proceedings would be unauthorized, and this conviction cannot stand.

We are also cited to the case of Knoxville (City) v. Railway, 83 Iowa 636 [50 N. W. Rep. 61; 32 Am. St. Rep. 321]. In that case it was held, reading from the syllabus:

“A municipal corporation has no authority to provide by ordinance for the punishment by a fine of a person guilty of a nuisance as defined by the ordinance. The power of the city is limited to provide for the abatement of the nuisance.” >

It appears upon looking into the ease that the authority of the municipality in the premises is found in Sec. 456 of the code of that state which reads, “they shall have power to prevent injury or annoyance from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated; ’ ’ reading, it will be observed precisely as does thi3 paragraph three of Sec. 1692 Rev. Stat. (repealed 96 O. L. 96), with the exception that in our statute the word “unwholesome” is used, where in the Iowa statute the word “unhealthy” is used. Now so far as appears from this report, the only authority so far as preventive measures or penalties, or method of procedure is concerned in the state of Iowa, was to be found in this paragraph of the statute which I have read, and in the course of the opinion it is said:

“Cities and incorporated towns have power to provide, by ordinance, for the abatement of nuisances, but not for the punishment, by fine, of those guilty of maintaining the nuisances.”

May that be said with reference to municipalities in the state of Ohio? We think not. We think there is no such limitation. Section 1861 Rev. Stat. (and for convenience we nse the old statute instead of the late revision) provides:

“By-laws and ordinances of municipal corporations may be enforced, by the imposition of fines, forfeitures, and penalties, on any person offending against any such by-law or ordinance; and the fine, penalty,, or forfeiture may be prescribed by each particular by-law or ordinance, or by a general by-law or ordinance made for that purpose; and the municipal corporation shall have power to provide, in like manner, for the prosecution, recovery and collection of such fines, penalties, or forfeitures. ’ ’

That is a general provision. We doubt, after reading the case of Knoxville (City) v. Railway, supra, if the statutes of Iowa contained such a provision; if they had, we cannot see how the court could have arrived at the conclusion it did in the case I have just read. We think that under Sec. 1861 Rev. Stat. (repealed 96 O. L. 96) the council had power and authority to provide for the prevention of injury or nuisance from anything dangerous, offensive or unwholesome, by the imposition of appropriate penalties for doing or attempting to do that which would result in injury or nuisance, or anything offensive, dangerous or unwholesome; and that the power to cause the nuisance to be abated was an additional power vested in the municipality. Neither do we think that paragraph fourteen of Sec. 1692 Rev. Stat. (repealed 96 O. L. 96) is exclusive on the subject of explosives; we think that gives; the council additional power over explosives. They may regulate-the transportation and keeping of gunpowder and other explosive and dangerous combustibles and provide or license magazines for the same;, but it does not follow that they may not also do that which would prevent injury or nuisance or anything dangerous, offensive or unwholesome. In other words, they may with propriety and reason, prevent the .storage of certain kinds of explosives within the limits of the municipality, and they may regulate the transportation and keeping therein of any gunpowder or other explosive. They may pass an ordinance that would be permissive in its nature and character up to a certain point, but with respect to certain other explosives in their judgment, and as a matter of fact, too dangerous to permit of their storage within thé corporate limits of the municipality, too dangerous to permit of their being transported through the corporation in any quantity, we have no. doubt they may go further and absolutely prohibit the storage and transportation of such explosives.

The council seems to have been of the opinion in passing this ordinance that nitroglycerine was an explosive of that character; so extremely dangerous that it was not wise to permit any quantity thereof to be stored within the corporate limits, or to permit any quantity of it to be transported through the city, and we cannot find from anything in this record, and we are not apprised of anything, that would cause us to doubt the wisdom of the action of council in providing for this absolute prohibition.

We do not find therefore, that the ordinance is invalid on the ground that the council exceeded its statutory authority. We might have decided this upon the authority of Hays v. St. Marys (Vil.), 55 Ohio St. 197 [44 N. E. Rep. 924], but since counsel has undertaken to distinguish between the ordinance there and the ordinance involved in this case and has pointed out that the court in that case did not reason upon the question, and urged that it may have entertained different views if such an ordinance as is here presented had been before that court for consideration, we have taken some pains to discuss the question. In’ that case it was held that an ordinance of a village prohibiting the storage within its limits and the transportation along its streets of dynamite or nitroglycerine in quantities larger than five quarts, being within the power conferred upon cities and villages by Sec. 1692 Rev. Stat. (repealed 96 O. L. 96) and not inconsistent with the provisions of Lan. R. L. 10622 (R. S. 6953) is valid. In the body of the opinion the court say, page 198 :

“The ordinance is within the power conferred upon cities and villages by subdivision three of Sec. 1692 Rev. Stat., ‘to prevent injury or annoyance from anything dangerous, offensive or unwholesome, and to cause any nuisance to be abated,’ and subdivision fourteen of the same section ‘to regulate the transportation and keeping of gunpowder and other explosive and dangerous combustibles, and to provide or license magazines for the same.’ ”

It is also contended, as I have said, that the penalty is excessive; a fine of $100 and costs of prosecution was imposed.

Section 1862 Rev. Stat. provides:

“Fines, penalties, and forfeitures which do not exceed the sum of $50 for any specified offense, or violation of the by-law or ordinance, or double that sum for repetition of such offense or violation; or which do not exceed $10 for each day where the thing prohibited or rendered unlawful is, in its nature, continuous in respect to time, shall not be deemed unreasonable; but where in any by-law or ordinance a greater fine, penalty, or forfeiture is imposed than as above specified, it shall be lawful for the court or magistrate, in any suit or prosecution for the recovery thereof, to reduce the same to such amount as may be deemed reasonable and proper, and to permit a recovery or render judgment accordingly. ’ ’

So that even if the penalty imposed were excessive, authority is found under this section to reduce the amount within the limits authorized; but, is this fine excessive? It is contended on behalf of plaintiff in error that Sec. 1862 Rev. Stat. (repealed 96 O. L. 96) provides a limit of $50 as the maximum amount of fine that may be imposed for the first offense. That question has been considered and passed upon by the Supreme Court in the case of Alliance v. Joyce, 49 Ohio St. 7 [80 N. E. Rep. 270], where it is said:

“Under See. 1862 Rev.-Stat. a fine prescribed in a municipal ordinance, of more than $50 for any specific offense, or more than double that sum for each repetition of such offense, is not to be deemed in all cases unreasonable; but, the ordinance may, in some eases, be enforced by a fine greater than is specified in Sec. 1862, it being lawful for the court or magistrate, in any suit or prosecution for the recovery of the increased fine, to reduce -the same to such amount as may be deemed reasonable and proper by the court or magistrate.”

The contention there was, that this section provided a limitation upon the maximum amount that might be imposed as' a fine for the first offense of $50, but the court did not sustain that contention. Judge Dickman, in the opinion says, page 19:

“But, the section of the statute under consideration, contains no words forbidding the enforcement of an ordinance by a fine in excess of $50 for the first offense. On the contrary, the reference to an imposition of a greater fine would indicate, that in some instances, it might become proper and necessary for municipal councils to attach a severer punishment than a fine of $50, as in the case at bar, in which the ordinance provides, that any person violating any of its provisions, shall, ^upon conviction thereof, be fined for the first offense, not less than $50 nor more than $200. And where it is provided in the statute, that a fine not exceeding $50, ‘shall not be deemed unreasonable,’ it would not follow, that a fine greater than that sum for an offense of a serious nature, would be deemed unreasonable for the enforcement of a municipal ordinance.
‘ ‘ It would seem, that by reason of the probable need of an increased fine in certain cases, the legislature incorporated in Sec. 1862 Rev. Stat. the provision we have before cited, that, ‘where in any by-law or ordinance a greater fine, penalty, or forfeiture is imposed than as shove ■specified, it shall be lawful for the court or magistrate, in any suit or prosecution for the recovery thereof, to reduce the same to such amount as may be deemed reasonable and proper. ’
“But to what amount shall such reduction be made? If in the •ordinance a fine of $200 for the first offense is imposed, it is not required that the fine shall be reduced to $50, as a reasonable and proper amount, but it will be within the meaning of the statute, if the court or magistrate either inflicts the full penalty, or reduces it to any sum between ■$50 and the maximum of $200.”

We are not apprised of any fact with respect to nitroglycerine and its probable effects upon life and property, should an explosion occur, that would justify us in saying that in our opinion a fine of $100 for the first offense of storing that substance, or for transporting that substance in or through a thickly settled community, a city like Bowling Green, where the destruction of life and property from its explosion might be enormous and appalling, is excessive. Indeed, in our opinion found from observation and investigation it is a most dangerous substance. That may be safely affirmed as a fact of common knowledge. The testimony in this case tends to show that a sufficient' quantity was transported through the town to have destroyed the lives and property of a great many inhabitants had an explosion occurred, and the general knowledge of the substance is, that it is likely to explode when an explosion is least expected; that it is liable to explode during the process of conveyance by the methods commonly used to transport it from the magazine to the wells where it is to be exploded; it is also likely to explode without apparent cause even where it is stored in magazines. In view of the result we have reached in this case, it may not be necessary for us to discuss or pass upon these questions specifically, but we ■deem it proper to do so, and to express the opinion that we entertain now, that a fine of $100 for the first offense is not excessive or unreasonable.

The contention that the conviction was against the law, because not supported by any competent evidence, we will not take time to discuss, but we will simply announce that we think there was competent evidence, in the main circumstantial, tending to show that the accused was guilty of the offense charged against him. We come now to the consideration of the last error assigned or argued, viz., that the mayor erred in admitting hearsay evidence. As I have said, most of the evidence tending to show that the defendant committed this offense, was of a circumstantial nature. He was seen driving out of town at an early hour of the morning with his nitroglycerine wagon; he was seen going towards tbe magazine where the company for whom he worked kept its nitroglycerine stored. He was seen returning to, and passing through the town at such time thereafter as would just fairly allow him to go to the glycerine magazine, load up his wagon and come back. He was followed to a well, some distance from the town, which it appears was shot with' nitroglycerine that day, perhaps with a hundred quarts. These,, and other circumstances tend to fasten the guilt upon him.

In the course of the examination, Mr. Reed, the chief of police was called as a witness. He had been apprised of the suspicious conduct of the accused and had followed him to the vicinity of this well that was shot. He does not appear to have learned a very great deal of what was going on there; at least not at first hand. He followed the wagon after it left the corporation, trailing it by means of the tracks that the wheels left, and finally came in view of the wagon; he followed the defendant until he disappeared at the well. Mr. Reed did not go to the well at once nor until after the shells containing the explosive had been lowered into the well, but he says he received some information as to the amount of nitroglycerine that was used in shooting this well. He was asked by the court:

“Mr. Reed, about how many quarts of glycerine were conveyed by means of this team of horses and wagon, through Wooster street, Bowling Green?” A. “I don’t know, only from the information I gained at the well. ’ ’

(Objected to.)

“Q. What was your means of information?” A. “I talked to the owners of the well, part owners interested in the well. ’ ’

(Objected to.)

By the Court: “If Mr. Reed is possessed of any information to give him knowledge of the amount of glycerine, that is the information we want.”

Counsel for defendant: “If he got his information from Mr. Walters, I presume he could tell it. I should object to his telling anything he got from anyone else. ’ ’

By the Court: “Yes, Mr. Reed may answer that question. If you know how many quarts of glycerine were there, it is a question of knowing. The question does not measure up the exact quantity. It is simply a question of about how many quarts, and if he has any means of knowing if there were so many quarts or about so many quarts, we are not interested especially where he -got his information, but as to whether he knows.”

(Objected to by counsel for defendant as incompetent.)

By tbe Court: “I think you may answer that question if you know. Do you know about bow many quarts were transported over Wooster street?”

(Objected to by defendant; overruled and exception.)

A. “Well, from one source, I ascertained it was 120 quarts; from another source I ascertained it was 115 quarts.”

(.Counsel for defendant asked that the answers be stricken out as hearsay evidence; motion overruled and exeeeption.)

On cross-examination the witness is asked:

Q. “The information you received was not from Mr. Walters?” A. “Not from Mr. Walters, no.”

(Defendant renewed his motion to strike answers from the record as hearsay evidence.)

By the Court: “He hasn’t said he got it as hearsay evidence.”

(Motion overruled and exception.)

We are only required to apply to this, certain elementary law upon the subject of hearsay evidence. There is not much difference in the statements of the writers upon the subject in the different text books. I will read from Bradner, Evidence (2 ed.) 2: :

“Hearsay is the evidence of those who relate, not what they know themselves, but what they have heard from others. Such mere recitals or assertions cannot be received in evidence for many reasons, but principally for the following: First, that the party making such declarations is not on oath; and secondly, because the party against whom, if it operates, has no opportunity of cross-examination.”

Reading from pages 412 and 413 it is said:

“It is a general rule that hearsay' evidence is not admissible to establish any specific fact which, in its nature, is capable of being proved by witnesses who speak from their own knowledge; or, in other words that evidence whether written or spoken, which does not derive its credibility solely from the credit due to the witness himself, but rests in part upon the veracity and competency of some other person from whom the witness received the information, is not admissible to establish a substantive fact. And this is the rule although the matter sought to be proved was, at the time it was made, against the interest of the person making it, and although no other evidence can possibly be obtained; as, where it is the declaration of a person who was the only eyewitness and who keeps out of the way to avoid being subpoenaed. The reason of the rule is, that such evidence requires credit to be given to the statement of a person who is not under the obligation of a,n oath •or any of the ordinary tests for ascertaining the truth of the statement. The above rule is subject to many exceptions which are as well established as the rule itself. These exceptions are mainly under the following-heads: 1. Admissions by parties in interest. 2. Pedigree. 3. Boundaries. 4. Dying declarations. 5. Relating to matters of general public concern. 6. Declarations or entries made in the course of office or business. 7. Ancient possession. 8. Declarations against interest by person deceased. 9. Testimony given by a witness on a former trial,, since deceased.”
“The term ‘hearsay’ is used to denote that kind of evidence which does not derive its value solely from the credit to be given to the witness-himself, but rests also, in part, on the veracity and competency of some-other person. Thus, testimony of a witness as to what he has been told, but who knows nothing personally, is mere hearsay; as, the testimony of a physician, that other physicians concurred with him in his opinion, is hearsay. So testimony of plaintiff, in an action for breach of promise, that she heard that defendant was very rich.”

Of course there are a multitude of illustrations. It seems to us that this evidence comes fairly and clearly within the rule prohibiting hearsay evidence. Mr. Reed does not say simply, that it was information he got at the well, but in answer to the question of the mayor as to his means of knowing, he says “I talked to the owners of the well.” He does not say that Mr. Walters said anything on the subject. He does not say that Mr. Walters was present and heard what was said. His statement was received as evidence upon a very material matter in the prosecution — the question whether in fact the substance used was nitroglycerine. Of course the quantity was not a matter of a very great deal of importance, but it had not been established that there was any nitroglycerine in the wagon; it had only been indicated circumstantially. But, assuming -that there was sufficient evidence on the point without this, where incompetent evidence upon a material point is received and considered, we cannot undertake to support a judgment upon the theory that there may have been sufficient evidence without it, or that the incompetent evidence may have been given little weight. The mayor insisted that this evidence be produced, and upon his insistence it war-produced, and in our judgment this was error, requiring reversal of this judgment, and therefore the judgment will be reversed, and the eause remanded to the mayor’s court to be proceeded with according t« law.

Hull and Haynes, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ASSESSMENTS — MUNICIPAL CORPORATIONS.
    [Lucas (6th) Circuit Court,
    October 3, 1904.]
    Parker, Hull and Haynes, JJ.
    Amanda R. Ayers v. Toledo (City) et al.
    1. Failuee of City Council to Fix Valuation of Property in Advance of Making Assessment not Fatal Under Sec. 2271 Rev. Stat. (Repealed 96 O. L. 96), etc.
    The failure of the city council and assessing committee to fix in advance the valuation of property to he assessed for a sewer improvement, or the failure of the council to make a record of such valuation in case it is reported by such committee, are not such vital irregularities under Sec. 2271 Rev. Stat. (repealed 96 O. L. 96) as will invalidate the , assessment, if a just and equitable assessment was made, and the amount thereof neither exceeds the benefits resulting to the property, nor the limitation of 25 per cent of the true market value of the property.
    2. No Presumption That Assessment Inequitable Fbom Failure to Record Valuation of Property Assessed.
    The presumption that an assessment is inequitable does not arise from the mere failure of the municipal council to make a record of the valuation of the property charged therewith.
    3. Report oe Assessing Committee not Absolutely Binding Upon Property OWNEES.
    The report of the assessing committee appointed by council to determine and report an estimated assessment of the cost on the property to be assessed for a sewer improvement, is not conclusive as to the owners of the property. But an assessment based upon such report will not be set aside in the absence of proof that injustice or inequity has been done.
    4. Allegation That Assessment Exceed 25 Per Cent of Property’s Tax Valuation, Immaterial, When.
    Where the statutory limitation of an assessment against property is fixed at 25 per cent of the value of the property, which valuation shall not exceed a fair market value of such property after the improvement is made, an allegation of defendant, in an action to collect the assessment, that the assessment against her property exceeded 25 per cent of its general taxable value, is immaterial, and should be stricken out.
    ERROR to Lucas common pleas court.
    B. A. Hayes, for plaintiff in error.
    Smith & Baker and U. G. Denman, for defendant in error.
   PARKER, J.

The action in the court below was by the defendant in error against the plaintiff in error and others to recover certain sewer assessments. The plaintiff in error filed her separate answer, in which she avers, amongst other things, that the council of the city of Toledo never determined the value of said premises or of any part thereof; that is to say, ■of her premises upon which the assessment of which she complains was levied. And she claims that this was an irregularity in the proceedings which was vital, fundamental, and fatal, rendering the assessment null and void.

The statute bearing upon the question, and which plaintiff in error says was not observed in this respect, is Sec. 2271 Rev. Stat., as passed April 21, 1896, 92 O. L. 271 (repealed 96 0. L. 96). That statute contains this provision:

“In cities of the third grade, first class, the tax or assessment specially levied or assessed upon any lot or land for any improvement, shall not, except as provided in Sec. 227,2 Rev.,Stat. (repealed 96 0. L. 96), exceed 25 per centum of the value of such lot or land, as determined by the council in advance of the assessment or at the time of making the ■same, which valuation shall not exceed a fair market value of such lot or lands after the improvement is made, and the cost exceeding that per centum shall be paid by the corporation out of its general revenue.”

Section 2272 Rev. Stat. (repealed 96 0. L. 96) referred to applies to cases where a, petition for the improvement is filed, and there was no petition for the improvement in this case. Therefore we are brought face to face with the question of the effect of the omission to make the valuation, or the effect of a failure to make a record of a valuation, if such valuation was made.

In the case of Blair v. Cary, 24 O. C. C. 560, a similar question seemed to have been involved, and was debated. We held that we were not required to pass upon it, and did not pass upon it, because in that case there was a petition, but we said this, page 570:

“It is said, in the third place, that the assessment was invalid because the value of the property was never fixed by the council, so that no 25 per cent limit could be observed, reference being had to Sec. 2270 Rev. Stat. (repealed 96 O. L. 96), which requires.that an assessment shall not exceed 25 per cent of the value of the property to be assessed:It does not appear to us that any valuation of the property was required in this case. It was held in the case of Strauss v. Cincinnati, 10 Dec. Re. 783 (23 Bull. 359), by the superior court of that city, that a failure to fix a valuation did not render an assessment inyalid in a case where it was required; and that holding was confirmed by the superior court at the general term, the report of the affirmance appearing in 24 Bull. 422; and if a valuation were required here, we would be inclined to the views expressed by the court in that case.”

We gave the question pretty full consideration in that case before we •determined that it was not in fact involved, and that it was not necessary for us to pass upon it; and when we said that we felt inclined to the views expressed by the Cincinnati court upon that question, we said it after a full consideration of the matter, and we are not now inclined to adopt different views upon the subject. We think those views are sound and just.

X should perhaps go a little further with a statement of the facts. This issue as to nonvaluation presented by the answer, the city undertook to meet by its reply, in which it says that it denies that the council -of the city of Toledo never determined the value of said premises or any part thereof; further, that before any assessment was made against the property in the petition set out, the council of the city of Toledo, by ■ordinance, appointed three disinterested freeholders of the corporation of Toledo, to report to the council an estimated assessment of the cost on the lots or lands to be charged therewith, in proportion, as nearly as possible, to the benefits which might result from the improvement to the several lots or parcels of land so assessed; and that said freeholders determined the fair market value of said property of defendant, Amanda R'. Ayers, and laid its assessment in proportion to benefits upon said property, after considering its fair market value. That thereafter said report of the said freeholders containing the assessment made and found, after due investigation and determination as to the value of said property, was regularly presented to the council of the city of Toledo; and that thereupon the council of the city of Toledo, accepting the determination of said freeholders finding the assessment against said property in proportion to the benefits conferred upon the property, after a full consideration of the fair market value of said property, levied the assessment in plaintiff’s petition referred to, but neither did said freeholders above referred to, or said council, set out on their records their determination as to what was the fair market value of said lots and lands respectively.

When the case came to be tried upon these issues, it was submitted upon an agreed statement of facts, and there is some question whether the agreed statement of facts fully sustains these averments of the reply as to the valuation having been made by the council. The agreed statement of facts sets forth that the committee (giving their names) selected by the council, proceeded as follows:

1. They got the total cost of the improvement from the city civil engineer.

2. They obtained the description of all the property to be assessed..

3. They ascertained the amount of benefits to each parcel and apportioned the same, having reference, in so doing, to the whole amount to-be assessed, but they say that they ascertained and determined that the: amount of benefits upon all the property to be assessed exceeded the total1 of the costs and expenses which they assessed thereon; that the amount, of the assessment upon any parcel did not exceed, in any case, the benefits thereto, nor its proportion of the amount assessed upon all the property. They also determined the value of each lot so as not to exceed the.' limitation of 25 per cent, which they supposed they were required to observe ; that is to say, that the assessment should not exceed the limitation of 25 per cent of the value of the property. That in estimating the benefits, they viewed the property, -they considered its location, the size and. shape of each parcel, the extent of the frontage, the improvements thereon and the uses to which it was or might be devoted, and everything else-that in their judgment had a proper and legitimate influence upon the estimate they were making of the benefits accruing thereto from the improvement ; but they did not estimate the amount of the benefits accruing to all the property upon the street and sum the same up, or go through the arithmetical operation of adding, the same and using the total as a. basis of apportioning the benefits; and finding that the benefits exceeded the amount to be assessed, they proceeded with that amount as a: basis, taking no account of the excess of the total benefits over the total amount to be assessed.

It appears, therefore, that they proceeded about as a like committee did in the case of Blair v. Cary, supra, and which proceeding we found was substantially regular, and in accordance with the statute, and all that: was required by the statute.

The agreed statement of facts sets forth that the report of the assessing committee was as follows:

- “We, the undersigned, a committee appointed by your honorable-body, by resolution adopted July 29, 1901, to report an estimated assessment to pay the cost and expense of sewer No. 817 in the alley between White and Raymer streets, from sewer No. 271, in Nevada street, to a, point twenty feet east of White street, etc., in accordance with said resolution and the instructions therein contained, which are made a part" hereof, report as follows:
“We find that the estimated value of special benefits conferred upon the lots and lands set forth in the ordinance providing for said improvement, passed December 17, 1900, is equal in amount, to the total. •estimated cost of said improvement, including incidental expenses, as reported herein.
“We find and report an estimated assessment upon the lots and lands set forth in said improvement ordinance, passed October 17, 1900, which estimated assessment so reported herein, is made on the lots or parcels of lands to be charged herewith in proportion, as nearly as may be, to the special benefits which result from said improvement to the several lots and parcels of land specially benefited by said improvement in the proportion that the special benefit to each lot or parcel of land bears to-the whole special benefits conferred by said improvement. Said estimated assessment upon each lot or parcel of land so assessed as reported' herein, is based upon the value of special benefits conferred upon the-same by said improvement, and does not exceed the same, nor do they' exceed the proportion of the special benefits conferred upon each lot or parcel of land by said improvement. ’ ’

It will be observed that it is not averred or claimed by plaintiff in error that she was assessed inequitably, or that the limitation of 25 per cent was exceeded. The finding of facts sets forth in substance and effect that the committee did in fact assess her property equitably and fairly, and that the 25 per cent limitation was not exceeded; that for the purpose of avoiding an exceeding of that limitation they had valued the property, and that their report to that effect was adopted by the council. It does not appear that they reported any valuation of the propery to the council, or that the council when it came to confirm their action, which it did, had before it any valuation of the property made by itself or by the committee. Our view of the matter is, however, that the report of this valuation to the council and the making of a record of it is not fundamental; that is to say, that its omission would not be a vital defect that would render the assessment invalid. It is a means to an end. It is a method to be pursued in order that the assessment shall not exceed 25 per cent of the value of the property. If the result is fair and equitable to the party, considering the matter with respect to the benefits accruing to the property of the party and the proportion of benefits as compared with the benefits accruing to other property assessed, we question whether it is essential that a valuation should be made.

We feel entirely clear that it is not necessary that any valuation shall be stated by the committee or by the council, or that any record shall be made of it; that what was done by the committee here in making-the valuation, and observed in making the assessment, was sufficient; and we think it comes within the principle of the second clause of the syllabus in the case of Blair v. Cary, supra, which says:

“An assessment for a street improvement is not invalid for the reason that the council or its assessing committee did not proceed by a certain <or prescribed method in determining its amount, if a just and equitable result is obtained, and even though the method pursued by the council ■or its committee is unscientific or informal if the amount assessed against :a, parcel of land does not exceed the benefits thereto resulting from the improvement, or its just proportion of the benefits thereby resulting to all the property subject to assessment therefor, the owner has no ground . of complaint.”

We do not think that the failure to make a record of valuation should raise a presumption that there was any inequity in the assessment which .should require its being set aside.

However it may be as to the burden of proof, we think that there •should be a complaint in some form upon the part of the person undertaking to impeach the assessment that there was some injustice done. 'The statute governing assessments in municipalities states a great many 'cases in which informalities are not fatal, Secs. 2289a, 2289b, 2289c, and 2289d Rev. Stat. (repealed 96 O. L. 96) for instance, and provides with respect to certain informalities or defects in the proceedings that the assessment shall not be perpetually enjoined or declared void in consequence thereof, but the court in which any proceeding is pending to enjoin the collecting of such assessment or the levying of any such .■assessment “to pay for such improvement of any street, alley or other public highway, or the court in which such proceeding may hereafter be brought, shall allow the property owner bringing such proceeding as plfi.intifP to show wherein he has been injured, if at all, by reason of such” informalities, etc. And we think that there being no express provision in the statute as to the kind of informality that is claimed here, we should adopt a rule analogous to that provided by the statute in the sections to which I have referred, that will permit the party claiming to be injured to have an opportunity to show it; that he should not be absolutely bound by the committee’s finding. In cases where notice is required by Lan. R. L. 3651 (B. 1536-259; R. S. 2278) of the time within which a party may come in and find fault with the assessment, if the notice shall be given, and the time for filing complaint or exception shall expire, and no fault is found therewith, we think that if, under such circumstances, no more is made to appear than .such an informality as is here claimed, if a court of equity allows a party to come in afterwards and show wherein he has been hurt or damaged, it goes as far as it may or ought to go.

Our attention is called to the case of Thatcher v. Toledo, 10 Circ. Dec. 272, where we held that there was an omission in the proceedings that rendered an assessment — in that case a' sidewalk assessment— absolutely null and void. But that was an omission in the proceedings required by the statute in the adoption .of legislation on the subject, and we held that the council not having observed the express requirement of the statute as to the method to be pursued in adopting the legislation, and the statute being mandatory, that such omission was a fundamental error and defect which rendered the assessment invalid. But we think that this alleged error or omission stands upon a different footing.

The demurrer to the original answer was properly sustained.

Had the plaintiff in error set forth in her amended answer the true value of her parcels of land, and had it appeared therefrom that the assessment thereon exceeded 25 per cent thereof, that would have been material. Or had she averred generally that the assessment exceeded 25 per cent of the true value, that might have sufficed. But the statement of the values at which they were assessed for general taxation we regard as immaterial, and therefore we uphold the action of the court in striking such allegations from the amended answer.

The judgment of the court of common pleas is affirmed.

Hull and Haynes, JJ., concur.


text:
    COUNTIES — ERROR—HIGHWAYS.
    [Wood (6th) Circuit Court,
    April 25, 1903.]
    Parker, Hull and Haynes, JJ.
    Cincinnati, H. & D. Ry. v. George J. Brossia et al.
    1. County Commissioners not Required Under Lan. R. L. 7951 (R. S. 4658)„ to Proceed De Noyo After Report of Reviewers.
    Where the report of road reviewers appointed by the board of county commis-; sioners is in favor of the establishment of the road petitioned for, or otherwise in agreement with the report of the viewers, the commissioners are not required by Lan. R. L. 7951 (R. S. 4658) W then proceed de . novo by reading and rereading the report of the reviewers upon two different days of the same session, but the proceedings should be resumed! where discontinued at the time of the filing of the petition for review.
    2. Order of County Commissioners as to Damages and Costs Sufficiently Complied With, When.
    Where the board of county commissioners orders the payment of the costs and damages forthwith as a condition precedent to the establishment of a road it must affirmatively appear that they were not paid forthwith in order to constitute error for which the proceedings should he reversed, It would be in substantial conformity with such order if the costs and damages were paid immediately prior to the time that the order was made for the establishment and opening of the road. As the commissioners could modify or waive the requirements of the order all defects in the record in that respect would be cured, if afterwards they permitted the payment to be made.
    8. Payment of Costs and Damages Should be Made Into County Tkeasuby.
    The costs .and damages arising from the establishment of a county road under the provisions of Lan. R. L. 7908 (R. S. 4637) et seq. should be ■ paid into the county treasury, and not directly to the claimants.
    ERROR to Wood common pleas court.
    R. D, Marshall and F. A. Baldwin, for plaintiff in error.
    E. G. McClelland, for defendant in error.
   PARKER, J.

(Orally.)

A proceeding was instituted before the county commissioners of this county by George Brossia and. other petitioners for a county road under the chapter upon that subject beginning with Lan. R. L. 7908 (R. S. 4637). The road was established by the county commissioners, and the plaintiff, the railroad company being dissatisfied and being interested, appealed to the probate court as it might do under the statute.. The evidence adduced upon the hearing before the probate court was simply and only- the record of the proceedings before the county commissioners, and upon that evidence the probate court entered -up judgment in accordance with the order of the county corpmissioners, i. e., confirming their action. Error was thereupon prosecuted to the court of common pleas and the judgment of the probate court was affirmed, and now the railroad company prosecutes error to this court to- obtain an order of reversal and the setting aside of the order of the county commissioners and the judgments of the probate court, and the court of common pleas.

It appears from the record that after the report of the viewers had been brought in, a petition was filed for a review, and an order to review was made, and a report of the reviewers was brought in, and that report, as well as the report of the original viewers, was in favor of the establishment of the road. The county commissioners, however, were of the opinion that the road was not of sufficient importance to the public to justify the. payment from the county treasury of the costs and damages that had been awarded, and therefore, proceeding under Lan. R. L. 7943 (R. S. 4651) the county commissioners ordered that the road should be established upon the petitioners paying these costs and damages, or a certain proportion of them, I am not certain which, which further order is authorized by Lan. R. L. 7943 (R. S. 4651). This order was, that as a condition of tbe opening of tbe road these costs and expenses should be paid. It appears from the record that within a few months the costs and damages were paid by the petitioners, and that thereupon the county ■commissioners ordered the opening of the road.

The complaint of the plaintiff in error is that after the report of the reviewers was brought in, upon its being read but one time, the county commissioners proceeded to make this order for the establishment and opening of the road. The section upon that subject is Lan. R. L. 7946 (R. S. 4653) which reads as follows:

“If the report of the reviewers be in favor of the road, the same shall be established, recorded, and opened, agreeably to the provisions of this chapter, and the persons bound for the same shall pay into the county treasury the amount of the costs of such review. ’ ”

Laning R. L. 7951 (R. S. 4658) is relied upon by the county commissioners. It provides that:

“If, on receiving such report, there is no legal objection thereto, and the commissioners of all the counties interested are of opinion that ■such road, if opened, would be of public utility, they shall order the same to be opened in the manner pointed out by this chapter.”

It is insisted by the plaintiff in error that the meaning of that provision is. that the county commissioners shall proceed substantially de novo, as if this were the original report of the original viewers, and that therefore in pursuance of Lan. R. L. 7942 (R. S. 4650) which it is said should be read with this, the report should be read on two different days of the same session, and if no application be made to them for a review of the road or any part thereof, if the same be capable of division, will be of public utility, and the report of the viewers is favorable thereto, and no damages have been claimed or assessed, shall on the third day of the session cause the report, survey and plat to be recorded.

These provisions apply to the original report of the viewers; it is insisted however that because of the phrase which I have read from Lan. R. L. 7935 (R. S. 4643) they apply as well to the report of the reviewers and that their report should be read on two different days before action is taken upon it.

We are of the opinion that the true construction of this section is given in Giauque, Road & Bridge Laws 42, paragraph 155 reading:

“When the reason for discontinuing the proceedings provided for before paragraph 123, above, is the filing of a petition for review, and the reviewers accordingly appointed also report in favor of the road, or •otherwise in agreement with the report of the viewers, these proceedings should be resumed where left off, and the orders as to establishing and opening the road should be made and recorded, with such modification» only as the proceedings on the petition for review have made necessary. ’’

v We can see no reason for requiring the reading and rereading of the report of the reviewers upon different dates, neither do we thinly that the statute requires that,

1 There are circumstances under which the county commissioners are required to go back to the petition and begin de novo; for instance in Lan. R. L. 7944 (B. 4651a) Where the report of the viewers comes in and it is found there is a substantial irregularity in the proceedings; in a case of that kind it is provided that the proceedings shall recommence at the point provided for by Lan. R. L. 7934 (R. S. 4642) and shall proceed as before; and turning back to that section and observing what is required from that point, we find it leaves nothing substantially but the petition on file as a basis for a proceeding for the establishment of the road. That is a reasonable provision, and in view of the fact that there is this specific provision with respect to this kind of a case, we think it adds force to the construction that Giauque in his work has given to the statute. The county commissioners made an order substantially for the suspension of the proceedings until a report of the reviewers came in. Upon the report of the reviewers coming in, it being confirmatory of the reviewers’ report, they took the proceedings up at the point where they had suspended them and proceeded to the end, i. e.f the establishing of the road.

It is said there is error in this record, because of the fact that the county commissioners ordered the payment of the costs and damages forthwith as a condition precedent to the establishment of the road, and that it does not appear that they were paid forthwith. Indeed, it does not appear that they were not paid forthwith, and if there was any error in that, if it would be an error to proceed unless they were paid forthwith,, that should affirmatively appear as a ground for reversing the proceedings. But we think that even if the costs and damages were not paid! until immediately prior to the time that the order was made for the establishment and opening of the road, that that would be a substantial conformity to the order that they should be paid. At all events, the authority providing this condition might waive it, or modify it, and by afterwards permitting the payment to be made and ratifying it, all possible defects in that respect would be cured.

It is said too that the payments should have been made directly to the claimants. Payments were made, it appears, to the county, i. e.,. the money was paid into the county treasury, and we think that was. proper. We think it would lead to confusion and difficulty to undertake to work it out in any other manner, especially the manner suggested. We think this is not only a substantial compliance with the statute, but the other course should not be encouraged, and perhaps would not be proper at all. At any rate, we find there is no error in this proceeding. As to this being a conditional order, I have already stated that Lan. R. L. 7943 (R. S. 4651) provides for just such an order.

What the statute provided on this subject at the time of the decision by the Supreme Court, cited to us, to the effect that an order of this character may not be conditional, we have not examined. We are satisfied that the order in this case was in substantial conformity to the statute and that the proceedings all through are so; that there is no material error, and therefore the judgment of the court of common pleas will be affirmed.

Hull and Haynes, JJ., concur.


text:
    CRIMINAL LAW — TRIAL—JURY—MAYORS.
    [Wood (6th) Circuit Court,
    November 28, 1903.]
    Parker, Hull and Haynes, JJ.
    Arthur Hillier v. State of Ohio.
    1. Teiai, by Jury Waived by Plea of Guilty.
    The right of trial by jury is waived by entering a plea of guilty in a criminal prosecution before a mayor having complete jurisdiction.
    2. Mayob Has Complete Jurisdiction of Misdemeanors, Under Lan. R. L. 3363 (B. 1636-781; R. S. 1820), Without Jury, etc.
    Pull and complete jurisdiction is conferred upon mayors by Lan. R. L. 3353 (B. 1536-781; R. S. 1820), to proceed to trial in a misdemeanor prosecution without the intervention of a jury when it is waived, or to proceed to trial with a jury when it is not waived.
    3. Plea of Guilty Has Effect of Verdict by Jury — Mayor's Jurisdiction Under Such Plea.
    A plea of guilty has all the force and effect of a verdict by a jury; and when such plea is entered by the accused, in a misdemeanor prosecution before a mayor, such court has complete jurisdiction to proceed tG judgment and sentence without a waiver in writing, signed by tha accused, waiving a jury.
    4. Discretionary Power of Mayor Under Lan. R. L. 3354 (B. 1536-782; R. S. 1821).
    Discretionary power is conferred upon mayors’ courts by Lan. R. L. 3354 (B. 1536-782; R. S. 1821), to decline to have a criminal case tried by a jury and to hold the accused to answer to a higher court.
    Error to Wood common pleas court.

      Beverstock & Donahey and A. R. Campbell, for plaintiff in error:
    The proceedings were absolutely void and not erroneous; the mayor had no jurisdiction to impose the sentence of imprisonment and fine which he did. Laning R. L. 3348, 3349, 3351, 3352, 3353, 3354, 3355,' 10899 (R. S. 1816, 1817, 1818, 1819, 1820, 1821, 1822, 7146); Ward v.' State, 5 Dee. 230 (5 N. P. 81) ; Hanaghan v. State, 51 Ohio St. 24 [36 N. E. Rep. 1072],
    E. G. McClelland, prosecuting attorney, for defendant in error.
   PARKER, J.

Complaint was filed against Arthur Hillier before the mayor of the city of Bowling Green, charging him with a misdemeanor, to wit: cohabiting with one Martha Shupe in a state of fornication, under Lan. R. L. 10732 (R. S. 7020). He was brought before the mayor, and plead guilty to the offense with which he was charged. Thereupon he was sentenced to pay a fine of fifty dollars and costs of prosecution, and to be committed to the Toledo workhouse for a period of thirty days, and to stand committed to said workhouse until said fine and costs should be paid, or until he was otherwise discharged by due process of law.

After entering this plea of guilty and being sentenced, the defendant then filed a petition in error in the court of common pleas, averring that the judgment of the mayor was contrary to law; that the court had no jurisdiction to render the judgment it did, and generally, that there were other errors prejudicial to the defendant.

The judgment of the mayor was affirmed by the court of common, pleas, and now error is prosecuted to this court and upon the same grounds; that is to say, that the judgment of the court was erroneous and in fact void because the mayor had no jurisdiction to proceed to sentence upon this plea of guilty.

Our attention has been directed to a number of sections of the revised statutes bearing upon .the question of the jurisdiction of the mayor, viz: Lan. R. L. 3348 to 3355 (R. S. 1816 to 1822) inclusive. It is said that but few of these sections have any special bearing upon the case at bar.

Laning R. L. 3349 (B. 1536-777; R. S. 1817) provides he shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is, by the constitution, entitled to a trial by a jury; and his jurisdiction in such eases shall be coextensive with the county.

Laning R. L. 3351 ('B. 1536-779; R. S. 1818) provides that he shall have such jurisdiction in the cases mentioned in the last two sections, notwithstanding the right to a jury, if, before the commencement of the “trial, the accused waive a jury trial. “The last two sections,” refer to Lan. E. L. 3348 and 3349 (E. S. 1816 and 1817), the first of which covers prosecutions under an ordinance.

Laning E. L. 3353 (B. 1536-781; E. S. 1820) provides:

“If the charge is the commission of a misdemeanor, prosecuted in the name of the state, and the accused, being entitled to a jury, does not "waive the right, the mayor may, nevertheless, impanel a jury, and try the case on the affidavit, in the same manner, and with like effect, as such cases are tried in the court of common pleas on the indictment.”

It will be observed that this section gives to the mayor full and complete jurisdiction, in eases of prosecution for misdemeanors, to proceed to trial without the intervention of a jury if a jury is waived, or "to proceed to trial with a jury, if a jury is not waived.

Laning E. L. 3354 (B. 1536-782; E. S. 1821) gives the mayor discretionary powers to decline to have the case tried before him by a jury and to hold the accused to answer to a higher court.

It will be observed in the case at bar that the accused did not expressly waive a jury; that if he waived a jury, he did so by his plea of ■guilty.

In a case to which our attention has been called, the case of Hanaghan v. State, 51 Ohio St. 24 [36 N. E. Rep. 1072], it was held with respect to proceedings of a like character before a justice of the peace, "that such justice of the peace was without jurisdiction to sentence upon ■a plea of guilty, or to proceed to trial in case of a misdemeanor unless 4he accused expressly and in writing waived a jury.

The sections bearing upon the question, and referred to in the opinion of Judge Williams, are Lan. R. L. 10899, 10900 (R. S. 7146, 7147). It will be observed, however, upon reading these sections, that Lan. E. L. 10899 (R. S. 7146) undertakes to safeguard the interest of society so as to prevent collusion between the accused and some friend by whom he may be brought into court and without the magistrate being ■advised of the gravity of his offense, or the aggravating circumstances that may attend it, the offender may enter a plea of guilty and have a sentence imposed that would be wholly inadequate to the punishment of -the offense of which he is guilty. That section provides that if the complaint is not by the party injured, and the party accused pleads guilty, the magistrate shall require the.party so accused to enter into a recognizance to appear at the proper court, as provided in a case where there is no plea of guilty, and the magistrate upon inquiry finds that he is probably guilty.

There is a similar provision in the statutes with reference to the proceedings of mayors under like eases, and Lan. R. L. 10900 (R. S. 7147) contains’ a provision with reference to the waiving of a jury, that it must be in writing, subscribed by the accused and filed before or during the éxamination.

Now, with respect to that provision, it was held by the Supreme Court in this case that it was jurisdictional; a prerequisite — that is to say, the filing of this waiver in writing by the accused — without it such magistrate was without jurisdiction to proceed to trial. His jurisdiction was much more limited than that of a mayor. A mayor’s jurisdiction in such case is to all intents and purposes as broad and complete as the jurisdiction of the probate court or the court of common pleas.

It was held that where one entered a plea of guilty before a magistrate who had not complied with the statute or had not followed the statute with respect to waiving a jury by a writing filed in the case, signed by him, that such plea of guilty should be regarded as having the v effect of waiving an examination into the facts; and it then devolved upon the magistrate to hold him by recognizance to answer to a higher court.- But before a mayor having complete jurisdiction in cases of misdemeanor, we cannot see why the same effect should not be given to a plea of guilty, as is given to such a plea in any other court having full jurisdiction in the matter.

Now, the entering of a plea of guilty authorizes a court to proceed to judgment and sentence in a case — that it has all the force and effect of a verdict of a jury, is a rule so well known and understood by the profession, we think, that it does not require the citation of authority in its support. We know that it is every-day practice in the probate court, and in the court of common pleas for a person to enter a plea of guilty, for judgment to be passed thereon, and it can hardly be claimed by any member of the profession that the accused could prosecute error because among the records was not found a written waiver of a jury. No written waiver of a jury is required in those courts or before the mayor. The provision is general that he may waive a jury. So that we think that this ease cited in Hanaghan v. State, supra, is not opposed to the view we have expressed — that before a mayor, the plea of guilty has the same force and effect as a plea of guilty in the probate court, or the court of common pleas.

We have been cited to some authority as to the effect of a plea of guilty, and I call attention to a single sentence from the opinion of the court in the case of Hirn v. State, 1 Ohio St. 15, 23. The opinion is by Bartlet, J., and in it he Says:

“In a criminal case in tbis state a defendant cannot waive a jury trial, in any other way than by a plea of guilty.”,

It seems to be recognized as not only a proper way, but the only way; though, as we have pointed out, there is now another way provided in proceedings before a justice of the peace.

Entertaining this view' of the matter, we hold that the magistrate had full and complete jurisdiction; that he did not err, and consequently the court of common pleas did not err in affirming his judgment, and the judgment of the court of common pleas will be affirmed by this court.

Hull and Haynes, JJ., concur.


author: PARKER, P. J.

text:
    MUNICIPAL ASSESSMENTS — ESTOPPEL.
    [Lucas (6th) Circuit Court,
    June 25, 1904.]
    Parker, Hull and Haynes, JJ.
    Moses G. Bloch v. Wm. M. Godfrey, Aud., et al.
    1. Assessment Should be Apportioned Among All Lots Under Sec. 2601-1 Ret. Stat. — Rule por Apportionment.
    Under Sec. 2601-1 Rev. Stat. (repealed 96 O. L. 96), which provides that before the common council of certain cities shall accept the plat of any property upon which there is due any special assessment, the city civil engineer shall apportion the assessment among the different lots of such plat which are affected by such assessment, such assessment should ' be so spread out on all the tract that each part or lot will bear its just share. Rule adopted in this case apportions to each lot its share according to the square feet, after excluding streets and alleys.
    2. Owner op Tract Acquiescing in Irregular Apportionment op Assessment Under Sec. 2601-1 Rev. Stat. (Repealed 96 O. L. 96) — Estopped prom Objecting, etc.
    The fact that the city civil engineer in making the apportionment required by Sec. 2601-1 Rev. Stat. (repealed 96 O. L. 96), relieved certain lots altogether, will not, in the absence of evidence that injustice was done, invalidate the assessment as against the owner of the tract, or his grantee, who acquiesced in the apportionment at the time it was made.
    S. City Clerk Without Authority to Certify Apportionment Under Sec. 2601-1 Rev. Stat. (Repealed 96 O. L. 96), When.
    No authority is vested in the city clerk' to certify the apportionment of an assessment against a tract of land, provided by Sec. 2601-1 Rev. Stat. (repealed 96 O. L. 96), before the city civil engineer has proceeded thereunder. •
    B. A. Hayes, for plaintiffs.
    W. G. Ulery, U. G. Denman and Frank Crane, for defendants.
   PARKER, P. J.

This action is brought by Mr. Bloch to enjoin the assessments on lots 1 to 29 in Industrial Heights addition, on account of the improvement of Woodville street.

It appears that when Wogdville street was improved these lots were a part of a tract of about eleven or twelve acres of land, and that the assessors appointed under the statute to determine the amount to be assessed, determined, that a certain amount should be assessed against this whole tract, and an assessment was made accordingly by ordinance. Subsequently, upon Mr. Hayes, who was the owner of the tract, presenting to the council a plat subdividing this tract into lots which he desired to have adopted, the city civil engineer, in pursuance of Sec. 2601-1 Rev. Stat. (repealed, 96 O. L. 96), apportioned this whole assessment to these lots now owned by Mr. Bloch. Mr. Hayes, then the owner of all this property, at that time acquiesced in and consented to this reapportiohment. Subsequently he conveyed these lots to Mr. Bloch. It is insisted by Mr. Bloch, however, that the action of the city officers was not authorized by law, is irregular and void, and that this assessment upon these lots should not stand, notwithstanding the consent thereto of his grantor, and notwithstanding the fact that he afterwards received a conveyance •of this property, in which there is a warranty except as to assessments upon the lots.

Section 2601-1 Rev. Stat. reads:

“In cities of the third grade of the first class, before the common, council shall accept the plat of any property upon which, or any portion of which there is any special assessment either due or to become due, the city civil engineer shall make an apportionment of such special assessment among the different lots of such plat affected by such assessment.”1

It is contended that this action was irregular and void because all this twelve acres was affected by the assessment theretofore levied, and therefore each and every part of it was thereby affected, and therefore each lot of the subdivision was affected, and that under this statute the engineer was not authorized to place it upon certain lots and relieve others altogether, but that he must so apportion it that each and every lot must bear some part of the burden of the assessment. That is the contention on the part of the plaintiff. We are of opinion that this is giving rather too narrow a construction to this statute; that It is adhering rather too closely-to the exact letter of the words “among the different lots of the plat affected.” The letter of this statute as construed by plaintiff could be observed by levying one penny against each of the other lots than these twenty-nine lots, and levying all the remainder upon these twenty-nine lots. That, of course, would be absurd. The statute does not require that, and it should not receive such a construction.

There is nothing in this statute requiring that the assessment shall be spread out on all the lots according to the benefits that the engineer shall conceive each lot has received; and if that were required, it does not appear but that all the benefit accrued, as a matter of fact, to this front 120 feet, of which is made up lots 1 to 29 inclusive.

We are of the opinion, therefore, that there having been no objection made by Mr. Hayes at the time this apportionment was made, but he having acquiesced in it, that he is bound by it, and that the fact that some part of the assessment was not levied upon these other lots, in the absence of any evidence that there was any injustice therein, this apportionment of the whole cost of the improvement to lots 1 to 29, does not present any legal ground for invalidating the assessment or enjoining the levy. Therefore all the assessments which have been certified over in pursuance of this apportionment by the city engineer, shall stand and be collectable.

But it appears that a part of this assessment has been certified over by the city clerk, some upon the whole tract and some against the 120 feet abutting on Woodville street, before the' engineer had .thus proceeded in pursuance of this statute. By what authority or for what reason, we cannot tell; we do not know, we are not enlightened. We find no authority for it. There must have been some reason for it, but we do not know what it was. So far as we are informed, it appears to have been done upon the mere ipse dixit of the clerk and auditor, without any suggestion from "anybody else, or any good or valid reason for it. We do not see how that proceeding and condition of things can be upheld. Justice and equity require that this assessment shall be so spread out on all the tract that each part or lot must bear its just share and proportion. What that would be we cannot tell, and we do not know that anybody can tell. We are not sure that there is any statute or any authority for such adjustment. We can think of no rule by which to apportion it, except to apportion to each lot its share, according to the square feet, after excluding the streets and alleys. But the parties owning the property other than lots 1 to 29 do not appear to be in court. They would certainly not be bound by any decree that the court should enter with respect to their property.

We will allow to stand against this particular property its proportion, according to area, which cannot be more than its share since these lots abut upon the improvement, and the remainder will be enjoined as against these particular lots.

Hull and Haynes, JJ., concur.


author: JELKE, J.

text:
    CONSTITUTIONAL LAW.
    [Hamilton (6th) Circuit Court,
    July 30, 1904.]
    G-iffen, Jelke and Swing, JJ.
    State ex rel. F. C. Ampt et al. v. John H. Gibson (Treas. of Hamilton Co.) et al.
    Act of April, 1904,- for Relief of Certain County Officers not Unconstitutional.
    Act of April, 1904, entitled an “act for the relief of 'county treasurers and county commissioners,” does not.contravene Sec. 16, Bill of Rights; See. 32, Art. 2; or Sec. 1, Art. 4, Const, as being legislative interference with the judgment of a court; neither is said act opposed'to Sec; 28, Art. 28, Const, as being retroactive.
    ERROR to Hamilton common pleas court.
    F. C. Ampt, L. A. Ireton, N. R. Collins and W. M. Schoenle, for plaintiffs in error.
    F. F. Dinsmore, for defendants in error.
   JELKE, J.

We are of opinion that the act of April, 1904, entitled an, “Act for the relief of county treasurers and county commissioners” does not contravene Sec. 16, Art. 1; See. 32, Art. 2; or Sec. 1, Art. 4 of the constitution, as being legislative interference with the judgment of a court.

This act is passed in recognition of the binding force and effect of the judgment of the Supreme Court in cause No. 8737, in deference to said judgment and because of it.

Neither is said act opposed to Sec. 28, Art. 2 of the constitution as being retroactive. The power to make laws recognizing the moral claim involved in past transactions has always been recognized by the highest tribunals and never held to be retroactive in the sense provided against this and similar constitutional sections.

The legislature was fully informed as to all facts with which it was dealing, and no mistake of fact appearing, no matter what we may think of the wisdom or'moral purpose of this act, the conscience of the legislature is not to be measured by the conscience of this court.

The courts will not review this phase of an act of the legislature. We approve the opinion of the court below and its judgment will be affirmed.

Giffen and Swing, JJ., concur.