text:
    HARPSTER v BIG FOUR COAL CO HARPSTER v VAIL
    Ohio Appeals, 6th Dist, Lucas Co
    Nos. 2327 & 2328.
    Decided March 31, 1930
    Tracy, Chapman & Welles, Toledo, for Harpster.
    Marshall, Melhorn, Marlar & Martin, Toledo, for Coal Co and Vail.
   WILLIAMS, J.

In our opinion the petition in the Vail c,ase is demurrable for the reason that the only request for the statement of profit and loss and balance sheet was made by the plaintiff from The Big 4 Coal Company. There is no allegation in the petition to show that the defendant Vail ever had any knowledge that a request had been made of the corporation. He could hardly be personally liable for a penalty until he was áware that a shareholder desired a statement and balance sheet and a request made upon the corporation would not be a request upon one of its officers, at least without knowledge by such officer that such request had been made. The petition in the Vail case, as amended, was therefore fatally defective.

In The Big 4 Coal Company case there is no claim made that the amended petition does not state facts sufficient to constitute a cause of action, if 8623-127, GC., is constitutional. The contention made by defendant in error, however, is that this section is unconstitutional for the reason that it is so excessive as to penalties that it denies equal protection of the laws and deprives the defendant in error of its property without due process of law. Many cases have been cited but they are not vefy helpful, as none of them involves the exact question presented here. It is not contended that penalties may not be imposed to compel the performance of duties on the part of a corporation, providing such imposition does not deprive the corporation of its constitutioanl rights. If the penalties are reasonable and not excessive, the claim as to uneonstitutionality must fail. Counsel for defendant, in their brief, use the following language:

“It is the possibility of excessive penalties, and not their actuality, that denies equal protection. It is enough if the penalties threaten great financial loss. Thus a corporation, doubtful of the intended scope of the statute, which failed to mail statements to one thousand shareholders, would immediately be subject to a penalty of $100,000.00 plus $10,000.00 for each day thereafter, all of which; at the end of .the statutory period of one year allowed by Sec. 11225, GC., for bringing action on a penalty, would amount to $3,750,000.00. A holder of one share would likewise recover about $3,750.00.”

One answer to this contention is that the penalty can easily be avoided by mailing the statement. The penalty must be large enough to compel the performance of the duty and we can easily imagine a case where a penalty of only a dollar a day would run into figures greater than those used in the illustration. Many of the great corporations have more than a hundred thousand shareholders, and if such corporation should fail to mail statements on request to 20,000 shareholders, the aggregate penalty at the end of the year ,at $1.00 a day would amount to $7,300,000.00. It is thus apparent that no matter how small the penalty, the total amount recoverable will be large if a large number of requests for statements are not complied with. The corporation laws of this state require publicity so far as shareholders are concerned, and the General Assembly may make the penalty sufficient to secure that publicity. In our judgment it does not exceed such amount as is well calculated to require the performance of the duty imposed and require it with reasonable promptness. The statute is not in contravention of the constitutional provisions referred to and the amended petition in The Big 4 Coal Company case, therefore, stated a' good cause of action.

For the reasons given the judgment in the Vail case will be affirmed and the judgment in The Big 4 Coal Company case will be reversed with directions to overrule the demurrer and for further proceedings according to law.

LLOYD and RICHARDS, JJ., concur.


source: Caselaw Access Project

author: VICKERY, PJ.

license: Public Domain

text:
    MITZEL CO et v SHIELDS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10629.
    Decided March 24, 1930
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland for Mitzel Co, et.
    William H. Hill, Cleveland, for Shields.
   VICKERY, PJ.

It would seem, at first blush, that this answer invoked the rule against varying a written contract by parol testimony and apparently that is the,view which the court took of it. In other words, that the defense set up in the statement of defense would, in effect, destroy the instrument by the introduction of the testimony of the parol contract that was made at the time the instrument was given and, therefore, it did not state a defense inasmuch ,as the things set up in the statement of defense and the amended statement of defense could not be introduced in evidence and would not be a defense for that reason.

It must be remembered that this action was between the original parties to this paper, the maker of it and the payee of it, and the endorsement on the back of it intimates that there was an agreement before the endorsers would endorse this paper, for it says: “according to the agreement.” Now the pleading set up that this oral agreement was made as an inducement concurrently with the execution of the note. We are well informed of the rule that one cannot vary or change a written obligation either to enlarge or to detract from it by parol testimony made before or at the time of the making of the paper. But there are some exceptions to this rule. One of the exceptions is that a note or contract complete on its face in every detail, signed and delivered, might be shown not to be operative until the. happening of some thing in the future. Now this does not change or vary the terms of a written instrument. It simoly goes to the effect that, although the instrument is complete in its makerup, and for all intents and purposes so, far as it might appear it was a complete instrument, yet by the agreement that was made concurrently with it as an inducement for the making of the contract, it was understood and agreed that this was not as a matter of fact to be a contract between the parties until the happening of some event in the future.

In this case, apparently, according to the statement of defense this paper writing purporting to be a note complete in every detail, was not to be enforcible until the happening of something which was to take place in the future. Now it was not attempted, by this pleading, to vary the terms of this note, but only to show as a matter of fact that, though complete in form, it was r.ofc enforcible as a note because at the time the suit was brought, the event that w,as the basis of the agreement had not taken place. Now, I sa" this is one of the exceptions to the oral testimony rule and if one analvzes it, it is perfectly logical and sound because, as ahead" stated, it did not change or vary the terms of the writing in the least. It is admitted that this writing w,as given. It is admitted that it is complete; but by virtue of the agreement it did not become actionable between the parties until the happening of an event in the future which was set up in much detail in the statement of defense.

Now it must be borne in mind that the rule might have been entirely different had this paper been endorsed either in blank or to a specific endorsee who had no knowledge of the agreement, before the note had become due, for a valuable consideration, for it being completei upon its face, if an innocent' holder had come into the picture he would have been protected against the agreement that existed between the original parties. But the rule does not obtain when the suit is brought between the original parties. Any defense, legal or equitable that exists between the parties may be interposed ,as a reason why a judgment should not be taken upon the paper against the parties liable upon the same.

In this case it was this agreement that was a defense and as between the maker and the endorsee of this paper on the one side and the payee on the other, that was a complete and proper defense and, as already stated, it did not impair or change the contract in the least, and we think that the statement of defense set up a complete defense at that time to the enforcement of this obligation, .and we think the court erred in sustaining the demurrer to the first statement of defense and, we thing the court erred in striking off the amended statement of defense and it would, therefore, follow, that the court erred in rendering judgment upon this note against the maker and the endorser, and for these errors the judgment of the Municipal Court will be reversed and the cause remanded to the Municipal Court with instructions to overrule the demurrer or demurrers and the motion or motions to strike off, for the statement of the defense and the amended statements of defense each set up a good ' defense as between the parties to this note’s enforcement at the time it was sought to be enforced if, as a matter of fact, the statements set up in the statements of defense could be¡ proven, but that is a matter to which evidence should be addressed.

Therefore, the court erred and the judgment will be reversed and the cause remanded to the Municipal .Court.

LEVINE, J. concurs.

Sufiivan, J., not participating.


author: •CROW, J.

text:
    STATE ex LEDMAN v GUYTON, etc.
    Ohio Appeals, 3rd Dist., Allen Co
    No 519.
    Decided April 9, 1930
    Henderson & Durbin, Lima, for State ex.
    Gilbert Bettman, Attorney General and Thomas Herbert, Special counsel for Public Utilities Commission.
    Eugene A. Lippincott, Lima, and A. M. Rodgers, Lima, for Guyton.
   •CROW, J.

Defendant has demurred to plaintiff’s said pleading, on the ground that it fails to state a cause of action.

Although defendant has not specially raised the point, it is readily apparent that the absence of an allegation of timely objection by relator, to the exercise of jurisdiction, leaves the pleading fatally defective, under the decisions in 117 OS. 481 and 118 OS. 637, inasmuch as for aught that appears in the pleading, the motion therein referred to “to discharge this relator”, pertained to matters wholly exclusive of any claim of disqualification by reason of pecuniary interest.

The demurrer w,as argued by all counsel as only presenting the question of disqualification of relator to hear and determine the affidavit, because of such pecuniary interest in the outcome, as would bring him within the decision of the Supreme Court of the United States in the case of Ed Tumey v. State of Ohio, 173 United States Supreme Court Reports, 510.

We shall not add any extended comment to the numerous views so many of which are regrettably inharmonious, already expressed by judges of courts of inferior jurisdiction, concerning the doctrine and scope of the Turney case, but we do not hesitate to say it is unmistakable authority for the proposition that where ,a criminal charge is made before a magistrate empowered to decide the charge either in favor of, or against, the accused, and the magistrate has by law, a direct and pecuniary interest in deciding the charge against the accused, such interest disqualifies the magistrate if timely objection be made by the accused.

Defendant’s jurisdiction of the matter set forth in the affidavit involved herein, existed by virtue of 13422 GC, not being within the terms of 13423 GC as those Sections then stood; and the procedure so far as is material to our present inquiry, is governed chiefly by 13511 and 13513, GC.

They provide that when there is no plea of guilty, the magistrate shall inquire into the complaint, if it appear that an offense has been committed and there is probable cause to believe the accused to be guilty, the magistrate shall order the accused to enter into a recognizance with good and sufficient surety in such amount as may be deemed just, for the appearance of the accused at the proper time and before the proper court; otherwise the accused shall be discharged from custody. If the offense charged be a misdemeanor and the accused in a writing subscribed by him and filed before or during the examination, waive a jury and submit to be tried by the magistrate, the latter may render final judgment.

Inasmuch as relator did not waive a jury and submit to be tried by the magistrate, we need look no further than to ascertain whether, upon a hearing before respondent which would, as we have shown, necessarily be confined to determining whether probable cause existed to believe the accused guilty of the offense set forth in the affidavit, the fees of the magistrate would become directly and substantially dependent on his decision.

No statute has been cited by counsel, and we have not found any, possessing that effect.

Noticing some which were mentioned in the briefs, we find that under 3016 GC, the fees of a justice of the peace, upon conviction of a felony, are to be inserted in the judgment of conviction and when collected, are to be disbursed by, the clerk; and in minor cases, such fees are likewise to be inserted in the judgment of conviction, and when collected disbursed to the persons entitled; • and in all cases when recognizances are taken, forfeited and collected, the amount recovered shall be paid into the county treasury, and if no conviction be had, the magistrate’s costs shall be paid by the county upon the allowance of the county auditor.

Section 3019 GC, empowers the county commissioners to make an allowance to a justice of the peace in lieu of fees in felonies wherein the state fails and in misdemeanors- wherein defendant proves insolvent. Such allowance to not exceed one hundred dollars during the calendar year, and to be pro-rated if there be more than one incumbent.

Section 3020 GO, makes the allowance subject to certain limitations which are of no moment herein.

The magistrate could not have a direct and substantial pecuniary interest in reaching his conclusion in a case such as the one in controversy herein, where a recognizance would be taken by the magistrate, or subsequently, upon forfeiture of such recognizance, for the reason that the fees of the magistrate could not be paid without the allowance of the county auditor.

Concerning the fees in felony cases where conviction fails, ,and in misdemeanor cases wherein defendant proves insolvent, covered by 3019 GC, it is sufficient to say that the trial for felony must necessarily have been preceded by indictment with which the magistrate could have no possible direct conection, and the misdemeanors mentioned in that Section, must be held to mean those where conviction resulted from a trial, or upon an admission of guilt.

There being no statute under 'which the magistrate could derive a direct and substantial pecuniary interest as the result of his decision, so far as concerned the relator, the doctrine of the Turney case does not apply and there is no principle of law otherwise enunciated which would render defendant ineligible to ascertain whether relator should be held to another court to answer the offense, charged against him.

It follows that the demurrer must be sustained.

Before Judges Hughes, Justice & Crow.


author: LEMERT, PJ.

text:
    BUMBAUGH v STATE
    Ohio Appeals, 5th Dist, Muskingum Co
    No. 419.
    Decided March, 1930
    Clarence J, Crossland, Zanesville, for Bumbaugh.
    L. M. Soliday, Zanesville, for State.
    LEMERT, PJ and SHERICK, J (5th Dist) and ROBERTS, J (7th Dist) sitting.
   LEMERT, PJ.

There were a number of assignments of error set forth in the Petition in Error, but in oral argument and in written brief the plaintiff in error seems to stress particularly two assignments of error; the first of these being the question of variance between the allegations of the indictment and the proof, being entirely upon the date of the prior conviction; and the other chief assignment which is particularly stressed by plaintiff in error is that of the right of the State to prosecute a Third Offense where the two prior convictions took place on the same date.

As to the question of variance, we find that subject very ably treated in Underhill’s Criminal Evidence, Third Edition, page 75, wherein the author used this language:

“But though the general rule is that the crime which is laid in the indictment must be proven substantially as alleged, no variance will be material if the allegations of the indictment are separable ,and the substance of the crime is proved.”

The author further says that in determinin'- whether a variance is material, the question to be considered is, does the matter so far fully and correctly inform the defendant of the criminal act with which he is charged, and taking into consideration the proof which is introduced .against him, he is not misled in making his defense, or placed in danger of being twice put in jeopardv for the same offense.

In the indictment in the instant case it is noted that Carl C. Bumbaugh entered a plea of guilty to a charge'of possessing intoxicating liquor on the 8th day of June, 1927, and the only variance complained of is as to the correct date on which the plea of guilty to that charge was entered.

We fail to see in what wa^ the plaintiff in error could have been misled because of. the fact of his plea of guilty to an offense charged on a certain date was a fact which was within his own knowledge and was definite as to the date or time of his violation. The same argument would apply to the criminal variance in the second prosecution, that offense having been committed October 18, 1927.

The record in the case before us discloses that an affidavit was filed against Carl C. Bumbaugh, charging him with an unlawful possession of intoxicating liquor on the 8th day of June, 1927; that a plea of not guilty was entered by him at that time and that nothing further was done with that charge until October 22, 1927. In the meantime, on October 8, 1927, he was again arrested on an affidavit charging unlawful possession of intoxicating liquor on the 8th day of October, 1927; and on the 22nd day of October, 1927, he came into Court, changed his former plea of not guilty to one of guilty; and on both charges was sentenced by the Court. The Journal Entry, however, in each case was not placed, upon the Journal on the 22nd, which was on Saturday, but was journalized on the following Monday, October'24, 1927.

The record also discloses that both fines imposed in both cases were paid on the 22nd day of October, 1927.

The question raised in this Court by the plaintiff in error is as to whether or not the Third Offense charged could be predicated upon two former offenses; there being no question but what the two former offenses were completely adjudicated long before the time of the charge of this Third Offense upon and for which the plaintiff in error was indicted: or, in other words, would the mere fact that these two former offenses, one actually committed on June 8, 1927, and the other one on October 18, 1927, keeping in mind that they were both disposed of and finally adjudicated upon the same date, to-wit, on the 22nd day of October, 1927, bar the indicting and subsequent conviction of plaintiff in error for a Third Offense.

We believe that it is well settled by the law; of this State, as well as other states, that where two offenses have been finally and completely adjudicated, and after such adjudication another violation of the same statute is committed, that this violation plainly comes within the meaning of a Third Offense.

In the case of Hocking vs. State, decided by the Court of Appeals of Logan County, January 27, 1928, and renorted in 161 N. E., pao-e 284, in the Opinion of the Court, as found on page 287, the Court used this language in referring to 6212-17 GC. guage in referring to 6212-17 GC.

the provisions of the Act must be liberally construed. AS we interpret them, they clearly provided for the prosecution as for a felony of any person who prior to an alleged Third violation had been twice charged with and convicted of an offense under the Act.”

The Court of Appeals of the Fifth Ohio District, in Licking County in case of Sissea vs. the State, held that where two or more convictions which have been finally adjudicated apDear of record as against the defendant, that opens the way and makes it clear for the maintaining of and conviction for a Third; -Offense; it not being necessary to allege in an indictment for a Third Offense that there had been a First and Second Offense committed, but if there had been two offenses or convictions or two pleas of guilty, as in the instant case, fully completed and adjudicated of record, then an indictment can be maintained for a Third Offense.

The jury in the instant case found the defendant guilty of a violation so alleged to have been committed on December 3, 1929, to-wit, a Third Offense, and returned a verdict of guilty for a Third Offense violation.

From the facts and from the evidence in the record before us and under the law of this state we hold that the plaintiff in error was properly charged with and convicted of a Third Offense, and we find no error prejudicial to the rights of plaintiff in error in the record before us; so it follows that the judgment of the Court below will be and the same is hereby affirmed. Exceptions may be noted. ,

Sherick, J., and Roberts, J., concur.


author: PER CURIAM

text:
    ERNEST NOSKER et v ROBERT S. NOSKER et
    Ohio Appeals, 9th Dist, Wayne Co
    No 865.
    Decided April 23, 1930
    Hiram B. Swartz, Wooster, for plaintiffs.
    Weiser & Weimer, Wooster, for Defendant Robert S. Nosker.
    Critchfield, McSweeney & Critchfield, Wooster, for Defendant Carolyn Nosker.
   PER CURIAM

From the evidence introduced in the trial of this action in this court and the admissions of counsel, we find that said allegations of the .answer are true and that this action, so far as the parties to it are concerned, is a collusive one.

A suit is collusive when brought by seemingly adverse parties under secret agreement and co-operation, with a view to having some legal question decided which is not involved in a real controversy between them.

In this case, the evidence conclusively shows that the suit was brought in the Court of Common Pleas for the sole purpose of affecting the rights of Carolyn Nosker, with the implied, if not express, understanding between plaintiffs and Robert S. Nosker that he would not contest the same and that it should affect only the rights of Carolyn Nosker.

But it is claimed that in this court the suit has ceased to be collusive and has become adversary, for the reason that plaintiffs are now prosecuting the same for the purpose of obtaining relief against their father, Robert S. Nosker.

With this contention we cannot agree. When brought the suit was clearly collusive and the sole purpose in bringing it was to affect the rights of Carolyn Nosker. It was such collusive action that w,as tried in the Court of Common Pleas, and it was such collusive action that was appealed to this court, and the element of affecting the rights of Carolyn Nosker and the alimony settlement made between her and Robert S. Nosker is still present in the case; and the fact that Robert S. Nosker does not desire to carry out the dishonest arrangement made by him in fraud of the rights of his wife, does not work a change in the character of the action.

Where there is secret or dishonest arrangement in fraud of the rights of another, there is collusion, and a suit brought in pursuance of and in carrying out such collusive arrangement, should not be entertained either by the trial or appellate courts.

The petition -of the plaintiffs will therefore be dismissed, at their costs.

Funk, PJ., Pardee, J., and Washburn, J., concur.


author: LEVINE, J.

text:
    SMERDA, etc v KOSKY, et.
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10660.
    Decided May 5, 1930
    P. L. Abrams, Cleveland, for Smerda.
    A. J. Bradley, Cleveland, for Kosky.
   LEVINE, J.

An examination of the counter-claim discloses that the defendant in error relied as the basis of his recovery, upon the counter-claim, upon fraud and misrepresentation as to the condition of the Brunswick P.anatrope radio. The evidence in our opinion does not disclose that plaintiff in error was guilty of fraud and misrepresentation. Quite the contrary, the various efforts made by plaintiff in error to put the machine in condition, as well as his general attitude, would indicate that he was free from the charge of fraud ,and misrepresentation. At most, defendant in error could have urged either an express or implied warranty as to the efficiency of the Brunswick Panatrope radio.

It is unnecessary for us to state at this time as to what our holding would be if a claim based upon such warranty were urged before us. This much is quite clear, that defendant in error misconceived the nature and character of his action. It will be seen at a glance that the net result of the verdict of the jury,, were it to be allowed to stand undisturbed, is to have permitted defendant in error to retain the machine for a period of one year and ten months to have enabled him to recover every dollar paid by way of -installments to cover the purchase price and to tax the plaintiff in error $170.00 for a used Victor machine which was allowed by way of credit ,at the time of the purchase of the new radio.

We are of the opinion that the interest of justice requires that this case be reversed and that the same be remanded for a new trial. It will then be possible for defendant in error to frame his pleading under ,a proper theory and have the case decided in accordance therewith.

Judgment reversed and cause remanded for further proceedings according to law.

Vickery, PJ., and Sullivan, J., concur.


text:
    STATE ex DIECKROEGGER v CONNORS et
    Ohio Supreme Court
    No 22158.
    Decided May 28, 1930
    Kinkade, Matthias, Day and Allen, JJ., concur.


text:
    BECKMAN v STATE
    Ohio Supreme Court
    No 22173.
    Decided May 28, 1930
   Judgment affirmed.

Marshall, CJ., Kinkade, Robinson, Jones, Matthias and Day, JJ., concur.


text:
    WILLIAMS v BOHLEY et
    Ohio Appeals, 9th Dist, Medina Co
    No. 102.
    Decided April 25, 1930
    J. B. Palmquist, Medina, for Williams.
    John A. Weber, Medina, for Bohley, et.
   PER CURIAM

The principal error complained of is that the finding of the trial court is against the weight of the evidence.

Whether the finding was justified depends entirely upon whether the trial judge believed the testimony of the witnesses for defendant in error or the witnesses for plaintiff in error.

After a careful consideration of the evidence as disclosed by the record, we are unable to reach the conclusion that the finding of the trial court is against the weight of the evidence.

The claim is made that the court was in error in ordering plaintiff in error committed to the jail of the county until the costs of said proceedings are paid, and we agree with this contention.

One found guilty of contempt in violation of an injunction of the court may be ordered to pay a fine and imprisoned until such fine is paid, but the court is without power to order him committed to jail until the costs are paid.

The judgment in this ease will therefore be modified sa as not to provide for imprisonment for nonpayment of costs, and as so modified the judgment is affirmed.

Funk, PJ., Pardee, J., and Washburn, J., concur.


text:
    SOUSA v SCHULTZ
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10425.
    Decided April 28, 1930
    Francis J. Cook, Cleveland, for Sousa.
    Schwan, Schwan & Thobaben, Cleveland, for Shultz.
   VICKERY, PJ.

The argument is very ingenuous by which counsel seeks to maintain an action for the damages which resulted irrespective of what caused them. He admits that an action for assault and battery would be barred in one year and he admits, for he must do so, that his action w,as not brought within the year, but he says it is the damages that he is after. That is a very naive statement. Of course, lawsuits of this sort are brought for damages, but how the damages can be separated from, the cause which created them is rather mysterious. If there had been no assault, there would not have been any damages, and so the damages must necessarily relate to the assault and the battery. Learned counsel seems to forget that in assault and battery cases and damages resulting from assault and battery, the time when the action must be brought is governed by a special statute and that takes it from under the general statute which he invokes to make his argument.

There are only two rights of action that grow out of an assault and battery case: one is by the State for breaking the peace and dignity of Ohio, which is a criminal action prosecuted in the name of the State; and the other is the right of the injured party to recover for such injuries as he or she — she in this case — received from the assault and battery.

I followed very closely the rather ingenuous argument of the learned counsel and I confess I cannot quite see the point that he is making, but I am satisfied of one thing: that so far as this lawsiut is concerned, if there had not been an assault and battery there would not have been a right to recover, and the right to recover in an assault and battery case depends upon the time within which the action is brought, ,and the statute has been construed in this State many, many times to mean that the action must be brought within one year from the time of the accruing of the cause of action.

There is no direct authority that is cited to us, but there are a few cases that seem to point that way that have been cited to us. We can come to no other conclusion but that this action was for assault and battery, or damages -that resulted from the assault and battery, and the petition is very explicit in setting up that this was a wilful malicious assault, and inasmuch as it was not brought within one year from the time of the assault, — from the time of the accruing of the right of action, — and there being nothing to show that the party was under disability ,and could not bring suit before, the question having been properly raised by a snecial demurrer setting up the statute of limitations, we cannot see how the court could have done other than it did. i

Not finding any error in this record that would warrant us in disturbing the judgment of the court below, the same will, therefore, be affirmed.

Sullivan and Levine, JJ., concur.


author: PARDEE, J.

text:
    DAVIS v ELYRIA (city)
    Ohio Appeals, 9th Dist, Lorain Co
    No 521.
    Decided April 30, 1930
    F. M. Stevens, Elyria, Cyril J. Maple, Elyria and Frank E. Stevens, Cleveland, for Davis.
    Harry M. Redington, City Solicitor, Elyria, for City.
   PARDEE, J.

At the outset we are unfortunately confronted with the fact that a copy of the ordinance was not made a part of the record, so we cannot properly consider the questions raised by the attorneys for the plaintiff in error;.and, there being no other question presented for our consideration, the judgment of the Common Pleas Court will have to be affirmed.

The bill of exceptions has attached to it what purports to be a copy of the ordinance, but the ordinance was not offered in evidence in the trial court, and reference is not made to it in the evidence, as disclosed by the bill of exceptions, and the mayor did not certify that it is a part of the bill of exceptions; therefore it is not a. part of the record and cannot properly bé considere^ by this court in a review of the case.

This holding is in accordance with the prior holdings of this court and of many other Ohio courts, some of which are as follows:

City of Elyria v. Laemonouz, and City of Elyria v. Halli, Nos. 225 and 226, respectively, Lorain Co. Court of Appeals decided by this court Feb. 16, 1923.
Sours v. City of Akron No. 493, Summit Co. Court of Appeals, decided by this court Nov. 11, 1921.
Esch v. Elyria, 27 O. C. C. 446, 7 O. C. C. (N. S.) 9.
Evans v. Wooster, 28 O. C. A. 285, 30 C. D. 251.
Nelson v. Berea, 12 C. D. 329, 21 O. C. C. 781; affirmed, 66 OS. 668.
Grossner v. State, 18 C. C. (N. S.) 46, 36 C. D. 587.
Lutkehaus v. Mt. Healthy, 11 C. C. (N. S.) 536, 21 C. D. 281.
Toledo v. Libbie, 19 O. C. C. 704; affirmed, 51 OS. 562.
Levine v. Cleveland, No. 2411, Cuyahoga Co., Unreported Decisions 8th Dist. Court of Appeals, Vol. 17, p. 21.
Gates v. Cleveland, 18 C. C. (N. S.) 349.

Funk, PJ., and Washburn, J., concur.


text:
    STATE ex HUNT, Prosecuting Attorney v SULLIVAN, et as Board of Elections of Lucas County
    Ohio Appeals, 6th Dist, Lucas Co
    No 2387.
    Decided April 30, 1930
    Leroy W. Hunt, Prosecuting Attorney, Harry W. Commager, Assistant Prosecuting Attorney and James Nye, all of Toledo, for State ex.
    Scott Stahl and Seeley, Wolfe & Rogers, all of Toledo, for Sullivan, et.
   PER CURIAM

This court has concluded that the power to enter into a lease to commence after the personnel of the Board changes exists in the Board in the absence of an abuse of discretion in the exercise thereof and that when questioned the burden rests upon the members thereof to show that the lease so sought to be made is for the public interest and therefore justified in the exercise of a sound discretion. The court of common pleas granted a temporary injunction on motiofi of the plaintiff therefor and thereafter, on hearing had thereon, dissolved the injunction so granted. From this order plaintiff appeals to this court, seeking a temporary injunction.

It is important to note that the defendants have offered proof, in the shape of two affidavits, and that the plaintiff has offered none except the petition, which is positively sworn to. An examination of the affidavits filed on behalf of the defendants discloses that many facts are set forth therein tending tó show that reasons of economy and the suitability of the present quarters justify the making of a new lease demising the same. These facts are not denied in* the petition, and as no counter affidavits have been filed, we must take them to be true and we can only find from the evidence adduced in defendants’ affidavits and not contradicted, that the proposed action in making- a new lease for the present quarters is not an abuse of discretion.

■We note, however, that defendants say that they are satisfied to enter into a lease of the present quarters for not more than one year and at a rental not exceeding that which is paid at the present time. In view of the situation presented, this court grants a temporary injunction restraining the defendants from entering into a contract leasing the present quarters for a period which exceeds one year, and from paying an .additional or increased rental during said period of one year, but no further temporary injunction will be allowed, in view of the state of the record.

Williams, Lloyd and Richards, J., concur.


author: BY THE COURT

text:
    GREENVILLE ELECTRIC LIGHT & POWER CO v PUTERBAUGH
    Ohio Appeals, 2nd Dist, Darke Co
    No 355.
    Decided March 29, 1930
    John F. Maher, Greenville, T. A. Billingsley, Greenville and Vernon S. Marchal, for Light & Power Co.
    Marion Murphy, Greenville, and George W. Porter, Greenville, for Puterbaugh.
   BY THE COURT

It .appears from the record that a bumblebee flew into the cab of the truck and lighted on the shoulder of the driver of the truck; that the driver of the truck and his companion engaged in an attack upon the bumblebee and thereby lost control of the truck which resulted in the collision and injuries to defendant in error. We have read the record in this case and also considered the very exhaustive briefs filed by counsel in support of their respective claims. We shall not attempt to discuss the testimony in detail as counsel are thoroughly familiar with the same. From such reading of the record, however, we are of opinion that the same discloses negligence upon the part of the driver of the truck. Counsel for plaintiff in error especially complain of a question asked Dr. Moffet on page 159, bill of exceptions. It appears that Dr. Moffett had made a physical examination of the defendant in error. The witness was asked at whose request such examination was made. The answer was—

“Of a representative of an insurance company at Chicago.
Mr. Maher: I object to the question, your Honor.
Mr. Billingsley: I move to strike the answer out.
The Court: The application is sustained. The answer of the witness is stricken from the record and the jury instructed to disregard it.
Mr. Murphy: “Exceptions.”

It might be inferred from this answer that the plaintiff in error was carrying insurance upon this truck. If so then such testimony may have been admissible. While the record does not disclose this fact nevertheless counsel for defendant in error insists that when the question was asked they assumed that the plaintiff in error had made the request for such physical examination. ■ It would have been proper to show that the examination was made at the request and demand of plaintiff in error. When it was disclosed by the answer of the witness that a construction might be placed upon the answer which would be objection-r able, the objection of counsel for plaintiff in error was promptly sustained and the jury was instructed to disregard the answer. From'the state of the record we would not feel warranted in holding that the answer of the witness constituted error prejudicial to plaintiff in error.

It is also claimed that counsel for defendant in error were guilty of misconduct in their remarks to the jury in reference to this subject. We do Inot think the remarks complained of could be held as constituting prejudicial error. We think they fall within the principle announced by our Supreme Court in the case, Dock vs. Trapnell, 88 OS. 521. Counsel for plaintiff in error also insist that the verdict for $6700 is excessive and that a remittitur should be made or the judgment reversed upon the ground that the same is excessive and was the result of passion or prejudice upon the part of the jury. We have considered this phase of the testimony very carefully. The verdict, in our opinion, in quite liberal but from a consideration of ail the evidence which discloses a complete loss of the sight of one eye; a serious injury to the skull and other injuries all of which incapacitate her from performing her usual household duties, which she was accústomed to perform prior to the accident and which render it necessary for her to remain in bed some hours every day to secure relief from the pain and suffering, which she claims to endure, we are of opinio nthat a reviewing court would not be warranted in disturbing the verdict upon the ground that it was so excessive as to indicate passion or prejudice upon the part of the jury.

We have considered all of the errors urged by counsel for plaintiff in error in their brief but finding no error therein which we consider prejudicial to plaintiff in error, the judgment of the lower court will be affirmed.

Kunkle, PJ, Allread and Hornbeck, JJ, concur.


author: WILLIAMS, J.

text:
    HURON COUNTY COMMISSIONERS v MIDDLESWARTH
    Ohio Appeals, 6th Dist, Huron Co
    No 266.
    Decided April 28, 1930

      Parkhurst & Buckingham, Bellevue, for Commissioners.
    Young & Young, Norwalk, for Middleswarth.
   WILLIAMS, J.

Appeal lies in such a case and the corrected record shows the appeal to have been taken according to law. Board of Commissioners vs. Gibson, 110 Ohio St., 290.

There is evidence tending to show that Goodrich Road is a highway on the outskirts of Bellevue and that the portion vacated leaves the property of the defendant in error on a cul-de-sac or blind road. The premises of the defendant in error abut upon Goodrich Road about a quarter of a mile or so from the vacated portion thereof. Goodrich Road formerly extended east and west and afforded an outlet in both directions. The vacated part is to the east, and defendant in error now has no means of ingress or egress except to the west. How much further the defendant in error will have to go to reach points to the east from his premises, since the vacation, does not definitely appear. There is evidence, however, tending to show that the additional distance would be more than a mile.

Before the vacation was made, the defendant in error received mail deliveries on his premises. About 3 acres of the land of defendant in error is within the corporate limits of Bellevue. His residence is situated on these 3 acres and fronts upon Goodrich Road, which at this point is within the corporate limits of Bellevue. Since the vacation, deliveries of mail are no longer made there and he is either compelled to get his mail at Castalia Street, a half mile away, or go to the post office, which is still farther. Goodrich Road is improved and there was considerable travel thereon prior to the vacation, but since then, travel is very limited.

'> The court submitted to the jury the question whether or not Middleswarth suffered an inconvenience by reason of the vacation, different in kind from that of the general public, but refused to submit to the jury, over the objection and exception of the plaintiffs in error, one of the requests submitted by them, which reads as follows:

“A property owner on a road, a portion of which other than the part on which he abuts is vacated by the county commissioners, has no right to recover damages by reason of such vacation where he has reasonable access to his property over a portion of the road vacated.”

Many cases support the doctrine that where access to property from one direction is cut off by the vacation of a part of the street and such property is left fronting on a culde-sac, the owner may recover damages. 49 A. L. R., 351. We are not compelled, however, to seek authorities in other jurisdictions, for the reason that we have many decisions in this state:

Cohen vs. Cleveland, 43 Ohio St., 190; Kinnear Mfg. Co. vs. Beatty, 65 Ohio St., 264;
Schimmelmann vs. Railroad, 83 Ohio St., 356;
Hall vs. Railroad, 85 Ohio St., 148; Neudoefer Silcox Co. vs. The Marting Bros. Co., 17 Ohio App., 286.

We are of the opinion that all of these Ohio cases can be reconciled and that the language used in the different opinions, when construed in the light of the facts involved, is wholly consistent. The Supreme Court has laid down the rule that the owner can not recover damages resulting from the vacation of a highway on which the land involved does not abut where he has reasonable access to his property by another highway or highways, even though the distance he may have to travel may be greater than it was before the vacation.

Under the evidence adduced in the instant case the question whether or not the defendant in error had reasonable access to his property after the vacation was one of fact for the determination of the jury under the instructions of the court. We are therefore of the opinion that the court erred in refusing to give the request above noted. We call attention of the court to Roe vs. National Supply Co., 10 Court of Appeals Opinions, 6th District, unreported, p. 149, and 1st National Bank of Fremont vs. Hocking Valley R. R. Co., 13 Court of Appeals Opinions, 6th District, unreported, p. 152. We do not regard the opinion in the instant case as being in conflict with the views expressed in these cases.

We have examined all the errors complained of and find none other prejudicial to plaintiffs in error, but for the reasons stated the judgments of the courts below will be reversed and the cause remanded for a new trial.

Lloyd and Richards, JJ., concur..


author: MIDDLETON, PJ.

text:
    MERSHON v STATE
    Ohio Appeals, 4th Dist, Scioto Co
    Decided April 30, 1930
    N. B. Gilliland, Portsmouth, for Mershon.
    Dustin W. Gustin, Prosecuting Attorney, Portsmouth, for State.
   MIDDLETON, PJ.

• It seems to be the theory of the plaintiff in error in this contention that by analogy at least his former testimony was protected by the provisions of 13660 GC. This claim is not supported by the section in question. That section grants immunity only to witnesses called by the State of Ohio. The plaintiff in error was offered as a witness by the defendant. There is no realtion whatever between the two situations. One is a special immunity created by the state for its own protection and in its behalf the better to enfroce the law and bring the guilty to justice. The conditions under which the plaintiff in error testified were created by the defendant in the former case alone and his testimony was for the defense. Under such conditions the protection contended for, if allowed, would defeat the claims of the state rather than assist it in the administration of justice.

It follows that the objection of the plaintiff in error to the admission in the instant case of his testimony given in the trial of his father was properly overruled.

We find no substantial error in the record and the judgment of the Court of Common Pleas affirming the judgment of the Municipal Court is affirmed.

Mauck and Blosser, JJ, concur.


text:
    REICHLIN, REIDY & SCANLON CO v BRIGHTMAN
    Ohio Appeals, 9th Dist,, Lorain Co
    No 519.
    Decided April 30, 1930
    F. M. Stevens, Etyria and Cyril J. Maple, Elyria, and Frank E. Stevens, Cleveland, for Company.
    Rowley & Carpenter, Norwalk, and Stetson & Butler, Elyria, for Brightman.
   PER CURIAM

Said company had its floor lamps, which were for sale, displayed along an aisle, or passageway, with lamp cords running from the lamps to convenient electric light sockets, so that the lamps could be lit in showing them to customers. Jennnie Brightman was taken by a clerk of the company to where the lamps were being displayed, for the purpose of selling her a lamp, and as they walked down this asile, the clerk being just in advance of Jennie Brightman, said Jennie Brightman tripped upon a lamp cord in said aisle and fell upon her knees and was injured; ,and just as she was falling, said clerk, who had passed said cord, remarked, “Oh! I was just going to tell you to be careful of that cord.” Jennie Brightman testified that the clerk’s presence just in front of her obstructed her view and that she did not notice the cord.

The company claims that said remark of the clerk was not competent evidence; but we find that it was a part of the res gestae and competent.'

Said company strenuously urges that insomuch as the evidence does not show how long said cord had been in said passageway, and insomuch as there was no evidence that the company knew it was there, there was no basis for claiming that the company was negligent in reference thereto.

It is conceded that where the substance or device that causes a defective condition in a store is not a substance or device directly connected with the store, there must be some evidence bringing knowledge home to the owner of the store of the presence of such defective condition before the owner can be charged with negligence; but that rule has no application to a case such as this, where the defective condition is caused by an instrumentality employed by the owner of the store in the conduct of the business of the store.

The electric cord in question was a part of the lamps being exhibited for sale and was in use for that purpose, and if it was so placed and arranged in or across the aisle as to render the aisle unsafe for use by customers, the inference is that the company was negligent in the manner in which it arranged its merchandise for sale; and the' company offered no evidence to destroy or overcome that inference.

It is not a case of a dangerous condition being caused by the presence of something not connected with the operation of the business, where knowledge, actual or imputed, is a necessary predicate of negligence, but it is a case where the jury might well find that it was the duty of the company to so arrange its merchandise that neither the articles themselves, nor anything used in connection therewith, would render the aisles unsafe for use by customers, which it invites to use them.

Our conclusion is that the evidence objected to was competent; that the motion for a directed verdict was properly overruled; that the verdict and judgment are not against the weight of the evidence, and that there was noi error in the rulings of the court in reference to requests to charge before .argument, and no error in the charge after argument which was prejudicial to said company.

We find an error in the charge in reference to the burden of proof as to contributory negligence, but that was in favor of the company.

Punk, PJ., Pardee, J., and Washburn, J., concur.


author: RICHARDS, J.

text:
    LIPSTRAW CO v SEUFERT, et
    Ohio Appeals, 6th Dist, Ottawa Co
    No 127.
    Decided April 7, 1930
    Stahl, Stahl & Stahl, Fremont, and N. C. Rosenstreter for Lipstraw Co.
    Graves & Duff, Port Clinton, for Seufert, et.
   RICHARDS, J.

It has long been a settled rule of law that a promise to do a thing which the promissor is by a subsisting contract bound to do is not a sufficient consideration to support a promise made to the person upon whom the liability rests to induce him to perform what he is already bound to do. This plain and simple rule of law has long obtained, as appears in the text books and innumerable decisions. In no place is it stated with more directness than in Shannon vs. Mortgage Co., 116 Ohio St., 609, where it is held that ■ a promise to pay a debt for which the promissor is already bound, does not constitute a consideration sufficient to support a new contract.

This well-recognized principle of law, however, must be taken in connection with another well-established principle, that if a new consideration exists* then the promise so made is valid and binding. Among the authorities quoted with approval by Day, J., in the case just cited is 6 R. C. L., 664, par. 73. in'which the following language occurs:

"Where a legal obligation exists, a cumulative promise to perform it, unless upon a new consideration, is a nullity.”

In order to determine whether a new consideration is averred in the second amended petition, we must advert to its language, which must be construed liberally in favor of the pleader. It appears from those averments that the defendants were already indebted to the plaintiff in the amount of $359.32 for coal, and desired to purchase additional coal on credit. Under the averments the plaintiff would be entitled to prove that while he had coal for sale and was desirous' of selling same, he was unwilling to sell more coal to the defendants on credit and informed them of that fact, ,and that he would not sell them more coal on credit unless the defendants would uncoditionally assure him that they would pay the amount then due within six months, and that if they would do so the plaintiff would extend the time of payment on the overdue account for said period of six months. The plaintiff would have the right to require that such payment and extension of time be a provision of the new contract to sell additional coal to the defendants on credit. The plaintiff would gain thereby the benefit derived by him in disposing of the coal and the defendants would secure on credit the coal which they desired. The general rule of law is that if there be any benefit to the creditor, it will be a consideration to support the agreement, and even though a slight benefit to the one or disadvantage to the other, it will be sufficient in law. The transaction involved more than a mere cumulative promise to pay an already overdue indebtedness. It involved the agreement of one party to sell and an agreement of the other to buy coal, conditioned upon the payment of the accrued indebtedness, and this formed a separate and distinct consideration, and the contract, if proved, would be upon a valid and sufficient consideration.

For the reasons given the pleading stated a good cause of action and the judgment must be reversed and the cause remanded for a new trial.

Williams and Lloyd, JJ., concur.


author: ROBERTS, J.

text:
    BABJAK v IVANIK, et
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided March 28, 1930
    Wirt & Gunlefiger, Youngstown, for Babjak.
    Aaron Esterly, H. G. Bye and Wirt & Gunlefinger, all of Youngstown, for Ivanik, et.
   ROBERTS, J.

That part- of the undivided interest in the land owned by the wife at her decease and which came to her by purchase, would descend to her surviving husband under the provisions of 8574 GC. That part which came to her by descent from her husband would pass under the provisions of 8577 GC. one-half to the brothers and sisters, as the case might be, of the first deceased husband, and one half to the brothers and sisters, as the case might be of the surviving wife now deceased.

The industry of counsel failed to discover authorities very directly in point or decisive of this issue, and the court has likewise been unable to discover .any very close authority for determination of the propositions involved. Upon one side it was claimed that the wife having deeded her second husband the undivided one-half interest in the whole tract of land, one-half of which she owned by purchase and one-half of which came by descent from her first husband, without any designation or further description as to what interest she was conveying, there was a presumption in law that she would convey that part which came to her by purchase. On behalf of other parties interested it was claimed that the presumption would be that she was conveying that part in which her relatives had special estate; that is, that part which came by descent from her husband.

We fail to find foundation for any presumption in this matter as claimed upon either side. We think that the proper disposition of this matter and the interests as they developed by reason of this complication of circumstances is that when the wife died, owning the whole tract, one-half of which having originally come to her by purchase, and one half by descent from her husband, and which if not disposed of by her in her lifetime would go one-half to her sisters and one-half to the surviving sister of the first husband; that these different and respective undivided interests became thoroughly commingled in an admixture of the two undivided parts or interests, and that when a conveyance was made of an undivided one-half interest in the whole tract that it conveyed proportionate amounts of these two separate kinds of ownership, if they may be so designated.

After the death of the first husband the wife owned the one-half that she previously owned by purchase and the other half came by descent from the husband and was subject to the provisions of 8577 GC. She deeded away a one-half interest of the whole. Previous to so doing one half of the tract was subject to the provisions of 8577 GC. and if not disposed of by the wife would go to these relatives. The result was that she deeded away one-half of what she acquired by purchase, and one-half of that which came by descent from her husband, leaving in her ownership one-half of the one-half, or one-fourth, of this land, subject to the provisions of 8577 GC. and at her death this one-fourth descended, one-half, to her husband’s sister, Mary Hutera, that is one-half of the one-fourth, or one-eighth, and the other one-half of the one-fourth, or one-eighth, descended to the two sisters of the wife, Anna Jasebova and Lotta Babjak, an undivided interest of one-sixteenth each. The balance of the tract, an undivided interest to the surviving husband, Stephen Ivanik, so that our conclusion is that Stephen Ivanik owned three-fourths of this property, Mary Huerta, one-eighth and Lotta Babjak and Anna Jasebova each one-sixteenth in undivided interests.


text:
    KLAN v. STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10626.
    Decided April 21, 1930
    Artl & Smolka,' Cleveland, for Klan.
    F. W. Garmone, Cleveland, for State.
   VICKERY, PJ.

The evidence of the police officers, three of them, is not very strong. The officer who was in the automobile says that he smelled liquor on the breath of the plaintiff in error, but that his walk was natural; at least, there was nothing’ unusual about it; that his voice was a little husky. As to the other two officers, one of them said that his breath smelled of liquor and the other that his voice was gruff, and that he walked rather unsteady. This is all the evidence that the State introduced.

Now on -the part of the plaintiff in error there was himself, his wife and the boy and they .all testified that the plaintiff in error did not drink anything that day. The boy testifies clearly and concisely that he was with his father and that they stopped nowhere except at those places where they wanted to get window panes and that his father went to three separate places; that in going down-town and in going home, he stopped at all the red lights and that his father did not drink anything after they left home. Both the plaintiff in error and his wife testify that he did not drink anything beforehand. It is true the father said he had a bad cold and that on the day before he had a hot drink, but for all his testimony that hot drink might have been Bulgarian tea or any other hot drink that one might take for a cold; however, he admits it was liquor but that he had none that day. If that be true, there hardly would be a smell of liquor lasting over the night and well into the afternoon of the next day.

In the face of the positive testimony of the plaintiff in error, his wife and his son, and in the face of the fact that he had driven this automobile through all the traffic from East 131st Street down through the town through the heavy traffic, and had driven it back again with no indications of anything being wrong, it would seem that it would take more than a mere smell of liquor on one’s breath to prove that one was intoxicated.

One cannot help but sympathize with the trial court in trying to stop the driving of automobiles upon our streets by intoxicated persons, but it is rather difficult to set a hard and fast rule to govern all cases under such circumstances. Anyway before a man should be convicted and sent to the Workhouse and have a fine imposed upon him for Two Hundred Dollars, there must be evidence which would warrant such a punishment and, so far as this record shows, this man was a hard working individual and had no record of any kind against him, and it seems like a rather severe penalty to assess upon him for the offense that was committed, if any were committed, in this case.

I suspect that the policeman driver of the automobile which came in contact with the automobile driven by the plaintiff in error was incurred by the verbal controversy that took place between them when he called this man down for driving into him. Probably had he been in his uniform there would not have been any controversy, and hence no arrest.

However that might be, we think the evidence in this c,ase' is not sufficient to warrant the imposition of a fine and the sentence that was meted out upon the plaintiff in error in this case.

Taking the whole record, one cannot help but doubt whether this man was intoxicated or not, and whatever doubt there is, must be given to the defendant, the plaintiff in error here.

Having gone over this whole record, we are constrained to come to the conclusion that there is not sufficient evidence to sustain the conviction in this case and the Judgment of the court will be reversed and the plaintiff in error discharged.

Sullivan and Levine, JJ., concur.


author: SULLIVAN, J.

text:
    PHELAN v CLEVELAND (City)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10639.
    Decided April 21, 1930
    Louis Fernberg, Cleveland, for Phelan.
    Fred A. Garmone, Cleveland, for City.
   SULLIVAN, J.

The claim is made by counsel for plaintiff in error that the record is insufficient to show, under the rules of criminal law, that the plaintiff in error was the driver of the vehicle at the time of the commission of the offense. The automobile in which he was riding had been in two accidents wtihin a short time prior to the arrest. Evidence of a credible nature was adduced at the trial to show that he not only admitted to the officers that he was the driver but a witness who was called on behalf of the city testified that at the second accident which occurred several hundred ■feet away from the first accident, that the plaitiff in error was found behind the driving wheel of the automobile, ,and in connection with this it appears that he, himself, was the owner of the automobile.

There is evidence also on the part of the officers that after arrest and on the way to the station he admitted that he was the driver of the car, and this was again repeated, according to the testimony of another witness at the police station, after plaintiff in error arrived at the destination to which he was taken by the policeman.

It is true, however, that the plaintiff in error claimed by the record that on his way to the station, while under arrest, he denied that he was the driver but in the absence of any testimony denying the testimony just noted, it is our judgment that the question as to whether he was the driver of his own machine at the time of the commission of the offense, was one for the jury, and that tribunal was justified in taking into consideration the fact that the plaintiff in error did not take the stand to deny these accusations, and this, since the amendment to the constitution, making thé absence of any denial on the part of the accused, a proper subject for discussion before the court and jury, is very significant because its effect, in the absence of denial under charges, is that of corroboration of the witnesses for the prosecution.

It is urged that the reason the plaintiff in error did not take the stand was because a city fireman was in the machine with him ánd in control of the car and sitting at the driving wheel but this is not a sufficient explanation of the absence of plaintiff in error on the witness stand while under fire. It reduces itself to a minimum of consideration because it appears that he did not know the name of the fireman, nor where he was located and such a situation is contrary to the principle of self-preservation of which the plaintiff in error could have taken advantage to save himself, and such a status would only appear justifiable with an explanation that would show such a motive as would make it necessary to refrain from taking the witness stand. No such circumstance appears in the case. If the city fireman was an actuality, the strong presumption is that the plaintiff in error would have taken the witness stand and given the prosecution, the court and the jury the opportunity to declare his innocence by a verdict of acquittal. Therefore upon the question as to whether the plaintiff in error was the driver, we have come to the conclusion that there is credible evidence of sufficient strength, applying the rules of criminal law, to sustain the conviction and a reviewing court in the face of such a record is not warranted in deciding the facts different from the interpretation given the evidence by the jury.

On the question as to whether plaintiff in error was intoxicated, we find from the testimony of the officers that he smelled of intoxicating liquor and that he acted as if he had been drinking, and one of the witnesses who was at the scene of the accident and who testified that he saw plaintiff in error at the wheel of the machine, related on the witness stand that he not only smelled of intoxicating liquor but that he staggered, and this testimony is corroborated by other credible evidence in the case and the two- accidents occurring at close intervals lend corroboration to the credibility of the testimony with respect to whether the plaintiff in error was driving while intoxicated.

It is true that the offense is driving while intoxicated and this must be shown under the rules of criminal law by evidence which appears to be upon the record, that would establish guilt beyond the existence of a reasonable doubt. The only way a reviewing court can ascertain whether the evidence went to this degree is from the face of the record and that, upon examination, appears to be strong enough to destroy the hypothesis of innocence which is the foun-. dation for the creation of a reasonable doubt. The mere smell of liquor is not sufficient fo convict of an offense under the ordinance but it is necessary to show intoxication and that means that to some degree at least the faculties necessary to the exercise in the case of driving an automobile are impaired to such a degree that it can be said that the party accused was not in the full possession and control of his faculties. Any impairment to a substantial degree would mean intoxication because it is the intoxication which is the cause and source of the impairment of the faculties.

Holding these views, the judgment of the' lower court is hereby affirmed.

Vickery P. J. and Levine J. concur.


text:
    HALPER v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10619.
    Decided April 14, 1930
    Francis J. Horvath, Cleveland, for Halper.
    Gilbert Bettman, Attorney General and Wm. R. Walsh, Cleveland, for State.
   SULLIVAN, J.

Section 5536 GC. is as follows:

(Here follows quotation)

Thus it will be seen that the offense is the engaging in-business as defined in the act, without having filed with the tax commission the certificate provided for in 5528 GC, together with a bond in form and amount prescribed by 5528-1 GC.

Now, when we recur to the affidavit we find the defendant charged with being a dealer doing business in the State of Ohio between September 6, 1929, and September 17, 1929, as defined in 5526 GC, and being engaged in the importation in the State of Ohio of certain motor fuel, to-wit, gasoline, for use or sale and delivery in Ohio. Up to this point we find that the language is merely descriptive; that the dates above mentioned do not have any application to anything excepting to a dealer under 5526 GC, and it in no way establishes the date of the commission of the offense which is attempted to be charged.

Now, when we follow the affidavit from this point, which relates to description only, we find the language,

“****did unlawfully fail to file with the Tax Commission of Ohio a certificate and bond, stating the name under which the aforesaid dealer was transacting business in the State of Ohio and the location of principal office within the State.”

Thus it is obvious on the face of the affidavit as to the language concerning the commission of the crime that there is absolutely absent therefrom any date respecting the commission of the act as has been noted. The dates mentioned in the affidavit apply only to the time when the defendant was a dealer but there is no language which imports the commission of an offense committed with the dates inserted in the affidavit.

The language absent is vital ,and material because the charge of “unlawfully dealing” must have a date and there is no connection between the dates applying to the dealer and the act which is charged to be unlawful. Therefore our conclusion is that upon this point under discussion there is an utter failure to charge the time of the commission of the offense charged against the plaintiff in error.

Again if we will examine the affidavit as to its sufficiency we find that notwithstanding the offense named in the statute applies to a dealer engaging in the business prohibited, yet the affidavit instead of charging the offense named in the statute, alleges an unlawful failure to file a certificate and bond with the Tax Commission of Ohio.

From a reading of the statute it is plain that the commission of the offense is not the failure to file the certificate. It is the engaging in the business denominated as unlawful by the statute. The only connection which the failure to file the tax has with the engaging in business is that the business shall not be engaged in by the dealer unless he has filed with the Tax Commission the certificate as provided by 5528 GC.

Thus, the charge in the affidavit does not apply to the offense as defined by the legislature but only to that qualifying clause or condition which relates to the filing of the certificate mentioned in the statute. Thus upon this point also we hold that the affidavit is insufficient in law, because the offense itself is not charged but merely that portion of the offense which is a qualifying clause or condition which determines whether the law has been complied with or violated.

Upon the question as to whether the court committed error by adding up the fines of each day and assessing the total, we are of the opinion that there is no warrant in law for the grouping of the offenses under one general sentence where the law, as in this case, distinctly and directly prescribes that each day shall constitute a separate offense. If the separate offenses had been charged separately under one affidavit there would not be so much ground for the assertion of error but inasmuch as each offense was added to the others and a sentence made upon the total, it is clear that there is no authority for such ,a procedure.

Different offenses of the same character may be charged under one indictment but they must be separately and distinctly numbered and stated and not appear in mass formation so to speak.

Holding these views it is our judgment that no offense has been charged in the .affidavit under the section of the statute named and that therefore the conviction is unlawful and inasmuch as the cause of reversal is based upon this reason the plaintiff in error is not immune from answering to the law when proper charges are made under -the provisions of the statute herein discussed.

The judgment of the lower court is therefore reversed and the plaintiff in error discharged.

Vickery, PJ, and Levine, J, concur.


text:
    BALTIMORE & OHIO RD CO v P U C PENNSYLVANIA RD CO v P U C
    Ohio Supreme Court
    Nos 21636 & 21647.
    Decided June 4, 1930
    Marshall, CJ., Kinkade, Robinson, Jones, Day and Allen, JJ., concur.


text:
    COLUMBUS, DELAWARE & MARION ELECT CO v O’DAY, Admrx.
    Ohio Supreme Court
    No 22134.
    Decided June 4, 1930
   Judgment' affirmed.

Kinkade, Jones, Matthias and Allen, JJ., concur, Marshall, CJ., and Robinson, J., dissent.


text:
    KENZIG v CIBULA
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10662.
    Decided April 14, 1930
    J. W. Kulka, Cleveland, for Kenzig.
    Fred E. Bruml, Cleveland, for Cibula.
   VICKERY, PJ.

The only question then is, was the judgment against Mrs. Kenzig for Four Hundred Dollars right in this case?

Several errors are urged as to why this judgment should not be sustained, but we think they are unavailing. A suit was brought on a contract. We think that the plaintiff had performed his contract; he had brought these parties together and had them enter a binding contract, and the only reason why the conveyance was not made was because of the default of Mary Kenzig, the defendant in this action, and so if there was not a full performance of the contract, it was because the action of Mary Kenzig made it impossible to perform. There w,as no way that the real estate man could either bring a suit for specific performance or compel Mary Kenzig to live up to her contract. The real estate man had done all that it was possible for him to do and it cannot be possible that a person can escape responsibility after' the other parties had gone to the extent that they went in this contract by simply changing his mind after the work has all been done. Of course, had the other party, Mrs. Chafetz, backed out and Mary Kenzig were ready, able and willing to perform her contract, she would not be liable for her part of the commission, and that is the reason why the other party would not be liable for a commission in this case. If Cibula had brought an action against the other party, Mrs. Chafetz, for his commission he would be met with this original contract and that party being ready, able and willing to¡ go forward and Mary Kenzig not going forward it would be a complete defense for that party against any commission that Cibula might seek to recover against her.

But that is not the situation with respect to Mrs. Kenzig. For all intents and purposes this conveyance was made, so far- as Cibula was concerned. He had done all that he could do and the only reason that he did not get his money was that Mrs. Kenzig after having entered into a binding contract had refused to go forward with it; in other words, she made impossible a more complete performance by the real ■ estate man for, inasmuch as it would be beyond his power to order a conveyance by Mary Kenzig, and not being able to make it himself, he was powerless and, inasmuch as he had done all that he was called upon to do, he had in effect performed his contract fully, and the only reason the conveyance was not made being because of the wrongful conduct of Mary Kenzig, we do not see why he should not be entitled to recover. The memorandum in the contract of mutual exchange was signed by both parties and hence by Mary Kenzig and the amount of his compensation was clearly set forth and who was to pay it.

We think the court was right in refusing to permit the plaintiff to recover on the second cause of action, although that is not before us, for there was no stipulation in any way that would make Mary Kenzig fiable for Three Hundred Dollars.

Having gone over the record we can come to no other conclusion than that the court below was right and the judgment will be affirmed.

Sullivan and Levine, JJ., concur.


author: MAUCK, J.

text:
    ROWLAND, Admr, etc v STOUT, Exrx, etc
    Ohio Appeals, 4th Dist, Athens Co
    Decided April 10, 1930
    Woolley & Rowland, Athens, for Rowland.
    Jones & Jones, Zanesville, for Stout.
   MAUCK, J.

The question actually argued is whether or not the third paragraph of the contract, as above quoted, by its terms avoided the contract when Hayes defaulted in his payments for a period of two months. The claim of the plaintiff in error is that by the paragarph quoted the instrument sued on became absolutely void and of no effect as against either party whenever Hayes was two months in default. The claim of the other party is that the instrument was voidable only at the election of the vendor and that Hayes .and those claiming under him can' not take advantage of his default and avoid his obligation to pay in full, as he is bound to do by the first paragraph of the contract.

It is, of course, quite well understood that the provisions against default in contracts for the sale of real estate are ordinarily provisions against the default of the vendee and are stipulated for the benefit of the vendor, for the reason that the vendor has already fully performed and the executory provisions of the contract await performanee by the vendee only. The plaintiff in error, however, points out that in Mackenzie v. Stuber, 119 Ohio St. 588, the parties in a land contract may provide by appropriate language for a default on the part of the vendee releasing the vendee himself from further performance. It is true that such a contract may be drawn, and such a contract was before the court in the Mackenzie case.

There is no provision in the instant contract for making all subsequent installments due upon default of an earlier one. There is no provision for the vendee yielding possession of the property on default and ne did not so yield possession, and while in the contract there is a provision that in case the contract becomes void the vendor shall not refund any payments made by the vendee there is no provision that payments actually made shall be full compensation for the use and occupation theretofore enjoyed by the vendee. The Mackenzie case is consequently not controlling.

We are of the opinion, therefore, that there is nothing in this contract that defeats the . general rule that the provision of a forfeiture in this case was made for the benefit of the vendor ,and that the vendee could not take advantage of his own default and avoid the obligation imposed on him by other provisions of the contract.

There is another and more difficult question in the case, however, and that is as to whether or not the vendor can employ the remedy that he invokes in this case. The plaintiff sued at law. He recovered a judgment, the effect of which is that he has a judgment for so much of the contract price as is past due and a finding that the defendant administrator shall allow as a valid claim against the decedent’s estate the installments not yet due. So far as the finding relates to the payments not yet due it would seem to be open to the objection that such a claim must be presented to and allowed by the probate court under Section 10748 GC., and that the administrator could not allow such claim nor by his rejection thereof give jurisdiction to the common pleas court to allow such claim at law. ' The difficulty, however, transcends even the section referred to. If this judgment stands Hayes’ administrator is required to carry out the contract of his decedent, make all the payments, and when he has done so the vendor will have the money and the legal title to the property, for there is nothing in this judgment which requires conveyance by the vendor and a court of law would be powerless to require it. The petition recites that upon full performance

“the plaintiff will be ready and willing to execute to the person or persons entitled thereto a deed for said premises.”

It has made no such deed and only expresses a willingness to do so. Imputing to the parties the best of faith, and having in mind only the possibility of the death of the party now standing in vendor’s shoes, it is easily seen that after the property is paid for in accordance with the judgment herein the vendees may be put to great expense to secure the title which would be their due. These facts are recited because they indicate the very apparent fact that by this judgment the vendor is acquiring all the benefits of an .action in specific performance without pleading a performance of those things necessary to obtain specific performance and without affording the vendee the perfect protection that a court of equity would provide in an action to specifically perform. Page on Contracts, Section 3219 says:

(Here follows quotation)

The difficulties suggested arise thru the attempt of the vendor to collect the purchase price at law. Isolated cases may be found where the vendor has been sustained in his attempt to recover the purchase price, but the rule is to the contrary. In Colson v. Shurman, 197 N. W. 674, 35 A. L. R. 924, the Nebraska Supreme Court says:

(Here follows quotation)

The Iowa Supreme Court in Prichard v. Mulhall, 127 Iowa 545, 4 Ann. Cas. 789, says: (Here follows quotation)

And the editor of the Annotated Cases in the note on that case says:

(Here follows quotation)

While the identical question has not been passed upon in this state the principle has been recognized. In Dayton, etc. Turnpike Co. v. Coy, 13 Ohio St. 84, the court questions whether an action can be sustained upon an executory contract for the sale of property where title has not passed.

Without multiplying authorities we conclude that while the plaintiff had an action in equity to specifically perform, which in practical effect would be a foreclosure or an action at law in damages, she had no action for the purchase price.

This opinion had proceeded to this point when on April 2, 1930, the opinion of the Supreme Court w.as haded down in Will-O-Way Development Co. v. Mills, in which that court holds that the vendor can not in an action of the kind now under consideration recover from the vendee the full purchase price provided for in a land contract without alleging tender of a deed of conveyance. „The effect of this decision, of course, is to require reversal of the judgment now under review. In the Will-O-Way case the court was required to go no further because a final judgment had been rendered for the vendee in the trial court. In the case at bar, if we should go no further than was gone in the Will-O-Way case, we would only reverse the judgment herein and remand the same to the Court of Common Pleas, where it is possible that the petition might be amended setting up a tender. This would likely require a second review of the case. If, however, we adhere to the veiw already arrived at as expressed above, that with or without a tender of conveyance an action does not lie by the vendor to recover at law the purchase price of his contract, this court must not only reverse the judgment below but dismiss the petition. This we do with even more confidence since the doctrine involved is set forth in Prichard v. Mulhall, supra, and that opinion is given express approval by our Supreme Court in the Will-O-Way oninion.

'The judgment of the Court of Common Pleas is reversed, and coming to render the judgment that that court should have rendered the petition of the plaintiff is dismissed.

Middleton, PJ., and Blosser, J., concur.


author: LLOYD, J.

text:
    FOSS v STATE
    Ohio Appeals, 6th Dist, Lucas Co
    No 2330.
    Decided April 14, 1930
    Mulholland & Hartman and J. W. Hackett, all of Toledo, for Foss.
    Leroy W. Hunt, Prosecuting Attorney and Clarence A. Irwin, Assistant Prosecuting Attorney, both of Toledo, for State.
   LLOYD, J.

The evidence discloses that the obvious purpose of the two- men who jumped at Irwin when he entered his office was to subdue him and take from him such jewelry as was on his person and with his aid or otherwise, open the safe and take therefrom whatever diamonds and other merchandise might be found therein. It is evident that the outcry of Irwin induced the shooting and the hurried exit from the latter’s office. Had there been no outcry, likely to be heard by other tenants, the intent and purpose to rob, no doubt, would have been accomplished. It is clear to us that when these men sprang at Irwin from the closet, there was no intent to shoot. The necessity arose thereafter, to assure their escape. In other words, the unexpected happened and they did what momentary thought suggested, but the fact that their original purpose was thwarted and Irwin was shot, does not in any way destroy the intent with which primarily the assault was made. Foss may have been guilty not only of shooting with intent to kill but also of an assault with intent to commit robbery. We see no reason why the one may not be incidental to and yet separate and distinct from the other. The case of State vs. Rose, 89 OS. 383, has been cited with approval in subsequent decisions of the Supreme Court, among which are State vs. Corwin, 106 OS. 638, and Duvall vs. State, 111 OS., 657, and we believe is decisive of the questions presented in the instant case. The court there said at page 387:

“It is not enough that some single element of the offense charged may have a single element of some other offense as to which the defendant had theretofore been in jeopardy, but the constitutional provision requires that it shall be the “same offense”. The usual test accepted by the text-writers on criminal law and procedure is this: If the defendant upon the first charge could have been convicted of the offense in the second, then he has been in jeopardy.”

An assault to commit robbery involves an assault and an intent to commit robbery. Shooting with intent to kill or wound involves shooting or shooting at, another person with malicious intent to kill or wound such person. Obviously Foss could not have been convicted of an assault with intent to commit a robbery in the trial had under the prior indictment. The crime of shooting with intent to kill or wound and that of an assault with intent *to committ robbery are, in our judgment, separate and distinct offenses, ,and conviction as to one of them, or of an .included offense, or acquittal, would not operate as a bar to indictment and trial as to the other. Admittedly this conclusion is not in harmony with decisions in some other jurisdictions, but we believe it to be in accord with those of our own state.

Finding no erros in the record prejudicial to plaintiff in error, the judgment of the court of common pleas is affirmed.-

Williams and Richards, JJ., concur.


text:
    INDUSTRIAL COMMISSION v HOFFMAN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10570.
    Decided May 19, 1930
    Raymond D. Metzner, Cleveland, for Commission.
    Joseph H. Mellen, Cleveland, for Hoffman.
   SULLIVAN, J.

In the face of these facts in the record the claim that there is no evidence of any nature to support the contention of the plaintiff is without foundation because its very essence is evidence of a circumstantial nature at least and corroborated by the direct testimony of plaintiff that the hernia resulted from the injury complained of.

The record discloses, in our unanimous judgment, that it is not a question as to no evidence but a question as to whether the judgment is clearly and manifestly against the weight of the evidence and from the record there is credible evidence of both a direct and circumstantial nature which, in our judgment, under the rules which a reviewing court is bound to follow, supports the judgment and it would .be an invasion by the reviewing court to pass upon the facts as to their credibility when its province is to determine whether there is credible evidence on the material issues and if so not to disturb the judgment.

Thus holding, the judgment of the common pleas court is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


text:
    GLASS et v O’TOOLE et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10559.
    Decided Nov 12, 1929
    C. T. Austin and C. J. McNamee, both of Cleveland, for Glass, et.
    Nathan E. Cook and Wm. F. Marsteller, both of Cleveland, for O’Toole, et.
   LEVINE, J.

While the assignments of error are stated in various forms, the major point sought to be established by plaintiffs is that the Common Pleas Court committed error in permitting the conversations, in the nature of representations and promises made by the lessors to the lessees, to be introduced in evidence.

A very excellent brief is presented by plaintiffs wherein the parol evidence rule is defined, and the application given the same by the courts is set forth in detail.

It may be stated at the outset that there is no evidence of a legal fraud on the part of lessors because the alleged statements made by the lessors to the lessees were in the nature of a promise to be performed in the future, namely: “that he, J. O. Glass, would fix it with the officials and authorities of the Village of Wiekliffe, Ohio, and secure a permit enabling the lessees to erect ,a frame building to be used as a gasoline station.”

It is, of course, elementary law that a misrepresentation of fact, in order to amount to fraud, must relate to a past or existing event. If the evidence presented by the lessees is to be given full credit, it would show that, prior to the time and at the time when they entered into the written lease, there was a collateral promise and agreement on the part of one of the' lessors that he would fix it with the authorities of Wiekliffe, and that he would secure a permit enabling the lessees to erect a frame building on said lot, to be used as a gasoline station. The introduction of the conversation which seeks to establish a collateral agrément preceding the execution of the lease, does not in any way add to, vary or contradict the terms of the written lease. It merely seeks to show that this collateral, 'verbal agreement entered into between the parties, formed the inducement which caused the lessees to enter into the written lease.

“Agreements or representations, though resting in parol and made prior to the written contract, but by which the party was induced to execute the writing, may be shown. In other words, where a parol contemporaneous agreement was the inducing and moving cause of the written contract, or where the parol agreement forms part of the consideration for a written contract, and it appears that the written contract was executed on the faith of the parol contract or representations such evidence is admissible.”
Jones Commentaries on Evidence,
Second Edition, Volume 3, Section 1492.

A long line of authorities is cited by the author supporting this statement of the law.

To deny the admission of evidence in a case like the case at bar would, in effect, operate as a fraud upon the lessees since, if their version be correct, the parol contemporaneous agreement formed the inducement which caused them to enter into the lease. It may be stated in another form: the parol contemporaneous agreement introduced in evidence is tantamount to an agreement between the parties that the terms of the written lease will not be enforced against the lessees and that the lease will not be effective, unless the lessors perform their verbal obligation, namely, to secure a permit from the Building Department of Wiekliffe, Ohio, to enable the lessees to erect a frame building to be used as a gasoline station.

It appears from the record that, after one or two payments of One Hundred Dollars each were made, the lessess made plans to erect a frame building; that they negotiated with a building contractor for that purpose; that one of the defendants applied to the Building Department of Wickliffe, Ohio, for a permit to erect a frame building, which application was promptly refused; that when the plaintiff, J. O. Glass, was informed of the fact, according to the testimony of defendants, he stated, by way of ameliorating them, that they could sell the lease and make a thousand or fifteen hundred dollars profit, and also that he would sell it for them and make them a profit. ■

The Common Pleas Court found that the verbal agreement preceding the execution of the lease between the parties was in, fact made between them; that the plaintiffs undertook and obligated themselves to secure the permit in question and that this obligation was at no time performed by the lessors.

We are of the opinion, therefore, in view of this finding by the Common Pleas Court, that the written lease entered into between the parties, is not enforcible because of the verbal agreement between the parties which formed the inducement for entering into the lease. In so far as the Seven Hundred Dollars paid by the lessees to the- lessors and for which a judgment was entered in their favor against the lessors, we are inclined to the view that this judgment is erroneous, for the reason that the defendants continued to pay rent for some five months after they were informed by the Building Department at Wiekliffe, Ohio, that no permit would be issued for the erection of a frame building. The payments were voluntarily made and we find no basis in. law for the recovery of money voluntarily paid. We have already stated that there is no legal fraud in this case so as to render the payment involuntary, nor do we find that the money was paid under a mistake of fact.

The judgment of the Common Pleas Court will, therefore, be modified, so as to enter judgment in favor of the defendants upon the plaintiffs’ petition and in favor of the plaintiffs on the defendants’ cross-petition. ■

Judgment affirmed as modified. A journal entry will be drawn accordingly.

Vickery, PJ., and Sullivan, J., concur.


text:
    SMITH et v SUMMIT COUNTY COMMISSIONERS et
    Ohio Appeals, 9th Dist, Summit Co
    No 1823.
    Decided May 14, 1930
    Waters, Andress, Hagelbarger, Wise & Maxson, Akron, for Smith, et.
    Don Isham, Prosecuting Attorney, W. A. Spencer, Assistant Prosecuting Attorney, and Mottinger & Evans, all of Akron, for Commissioners.
   PER CURIAM

This improvement is being made by public authorities in accordance with and in the method pointed out by the general assembly. It is being made by them for a public purpose for the benefit of the people who own real estate in the two sewer districts hereinbefore referred to, including the owners of property abutting upon said highway; and the laying of the water line in the road and beneath the surface will not interfere with plaintiff’s access to his property nor with the other incidental rights which their property has in connection with said road.

It is conceded that abutting owners on streets in municipal corporations, as well as on country highways, have certain rights which cannot be interfered with by the public unless compensation therefor is made; such ,as the right of ingress and egress and of air, light and view.

It is true that when highways were first created they were used for purposes of travel only; but when the territoy through which a highway extended became thickly populated, public health and- convenience demanded sewer and water facilties, and the courts very properly held, in certain instances, that it was contemplated that when the necessity arose the highways could be uséd for the purpose of providing such facilities and that such use was a proper highway one and did not constitute another additional burden.

The cases so holding were ones where the territory involved had been organized into or annexed to a municipal corporation, and it is settled that as to highways within a municipal corporation the public has a right, without compensation to owners of abutting property, to use the highways for any public improvement, so long as the abutting owners’ right of access to his property and his light, air and view are not interfered with.

The logic of these decisons is that when the highways were acquired it w,as not expected that conditions would always remain the same but that there would be progress and development and that when, by reason thereof, it becomes necessary and desirable, the people, through the legislature, have the power to create agencies to protect and promote the public health, welfare and convenience, and that the creation of municipal corporations and the use of the highways therein for sewer and water purposes is a proper exercise of that power.

For the purpose of providing for sewer and water improvements, which are well known municipal functions, the legislature authorized the creation of the districts in question, and when, pursuant to such legislative authority, the county commissioners organized this territory into said improvement district for said purposes, it had the same effect, in law, so far as the right of the public to use the highways for such improvements is concerned, as would have been accomplished if the territory had been organized into or annexed to a municipal corporation.

We hold that the creation, pursuant to legislative authority, of sewer and water districts, and the use of the highways therein for sewer and water purposes, is a proper exercise of such power, and that it is reasonbale to conclude that when this highway was acquired by the public it was contemplated that if conditions developed such as now exist, such highways would be put to the use now proposed — that is, the laying of water pipes therein by the public authorities for the purpose of promoting the health and supplying the wants of the people.

We are unanimously of the opinion that the use to which the public authorities intend to put said highway is not an additional burden cast upon the owners of the fee and is a proper highway use, and does not violate any of the property rights of the plaintiffs.

A decree may therefore be drawn, dismissing the petition of the plaintiffs at their costs.

Funk, PJ., Pardee, J., and Washburn, J., concur.