author: Jones, J.,

text:
    The State, ex rel. Pontius, Prosecuting Attorney, v. The Northern Ohio Traction & Light Co.

      Franchises — Power of county commissioners to annul — Term of franchise indefinite.

    (No. 14114
    Decided October 19, 1915.)
    In Quo. Warranto.

      Mr. A. Talmadge Snyder, prosecuting attorney; Mr. Henry W: Harter, Jr., assistant prosecuting attorney, and Mr. Hubert C. Pontius, for relator.

      Mr: John C. Welty and Messrs. Kline, Clevenger, Buss & Holliday, for respondent.

      Mr. R. T. Sawyer and Mr. G. M. Cummins, for The Cleveland Trust Co.
   Judgment for relator on authority of The East Ohio Gas Co. v. The City of Akron, 81 Ohio St., 33.

Judgment for relator.

Nichols, C. J., Johnson, Wanamaicer and Matthias, JJ., concur.

Jones, J.,

dissenting. The sole question in this case as presented is whether the board of county commissioners can revoke and annul a franchise granted by the state without having the power so to do delegated to it by the sovereign authority.

The question of the perpetuity of the franchise does not arise in this case. Did it arise, the question is fully met and answered by those provisions of the state constitution which authorize the general assembly, and that body alone, to alter or revoke any corporate law passed or special privilege conferred by the lawmaking power.

When the Dartmouth College case (4 Wheat., 518) was decided in 1819 Mr. Justice Story suggested in his opinion that the legislation of the various states conferring corporate rights and privileges, in order to avoid any inhibition of the contract-impairment clause of the constitution, might contain a provision reserving to the legislature the right to amend or repeal the rights so conferred. In accordance with this suggestion various states, including Ohio, prior to 1851, in the legislation granting corporate rights and privileges in perpetuity, expressly reserved the right to amend or repeal such statutes. But when the people of Ohio adopted the constitution of 1851 they, for their own protection, carried these provisions for the right of amendment, revocation or repeal into the constitution itself. Article I, Section 2, of that instrument provides that “No special privileges dr immunities shall ever be granted, that may not be altered, revoked, or repealed by' the general assembly,” and Article XIII, Section 2, provides that “Corporations may be formed under general laws; but all such laws may, from time to time, be altered or repealed.These provisions of the constitution become an integral part of every law passed by the legislature, and enter into all legislation subsequently enacted and into every contract made or franchise thereafter granted, with the same force and effect as if incorporated bodily into such contract or legislation. These two sections of the constitution have usually been construed together by both the state and federal courts.

The franchise granted was by its terms indefinite in time, and the county commissioners, because of that fact, claim the authority to terminate at any time, and at their will, the operation of the road and oust it from its franchise upon the public highways of the state.

The right of occupancy of the public highways is a franchise, and as such is derived from the state itself. It is true that municipalities and boards of county commissioners may consent or withhold consent for the occupation of the public highways, and may impose terms and conditions under which such occupancy may be had, but the franchise itself emanates from the state, which has power at all times to limit the control and supervision of its subsidiary agencies. The State, ex rel., v. Cincinnati Gas Light & Coke Co., 18 Ohio St., 262; The State, ex rel., v. Toledo Home Tel. Co., 72 Ohio St., 60; Farmer v. Columbiana County Tel. Co., 72 Ohio St., 526; Grand Trunk Western Ry. Co. v. South Bend, 227 U. S., 544, 555; Louisville v. Cumberland Telephone Co., 224 U. S., 649.

There are many special privileges enjoyed by corporations which do not accrue to individuals, and among others is the privilege or franchise of occupying streets of the municipalities and the highways of the state; the right of consolidation of corporate bodies; the power to make, alter and regulate rates of fare, etc. Shields v. The State, 26 Ohio St., 86, affirmed in Shields v. Ohio, 95 U. S., 319; Railway Co. v. Telegraph Assn., 48 Ohio St., 390, 432; Greenwood v. Freight Co., 105 U. S., 13. But it has been held that while these privileges and franchises, though perpetual in form, may be revoked, this does not divest the vested rights of the shareholders in the corporate property nor their rights of contract or choses in action. Greenwood v. Freight Co., supra.

This brings us to the main question involved in this case. Because the grant to the predecessor of the defendant was indefinite in time, could the board of county commissioners at any time revoke the franchise granted the former by the state and oust it and its property from the public highways ? And in this connection it must be conceded that there is no statutory authority whatever for the county commissioners to make such a revocation. Nor by the terms of the grant or resolution of the county commissioners to the predecessor of this defendant was there reserved such power. The question under consideration is highly important, and I know of no adjudicated authority, under the facts stated, which sanctions that view. No case has been cited in which this principle was sustained. The courts have held with practical unanimity that wherever one of the agencies of the sovereign power has endeavored to revoke a franchise which could only come from the state, it can be done only by virtue of the power directly delegated by the state or reserved in the grant itself under such delegation.

- There is a wide distinction between the regulative powers incidental • to municipal grants based upon the exercise of the police powers and the attempt, as in this case, to evict and destroy the public use. This distinction is plainly made in the case of Grand Trunk Western Ry. Co. v. South Bend, supra.

An examination of the revoking resolution of February 19, 1913, shows no complaint of the character of the use made as affecting the public welfare, but the resolution was based solely on the claim to terminate the franchise at will because it savored of perpetuity.

In this particular case the county commissioners of Stark county, Ohio, on February 22, 1892, passed a resolution granting to the predecessor of this defendant the right to construct and operate an electric road on the state highway between Canton and Massillon. This grant was not for a definite time, neither did the resolution of the commissioners reserve the right to revoke this grant. In the meantime large investments were made, bonds issued and the operation of the road continued. Later a controversy ■ arose between the commissioners and the company as to the reduction of fares between the two cities, and upon disagreement relating thereto, the county commissioners, on the 19th day of February, .1913, passed a new resolution, reciting that the term of grant was indefinite and continued only so long as the parties might agree. They therefore terminated the grant and ordered the prosecuting attorney to bring suit ousting the company from the operation of its franchise and directing the removal of all its property, equipment and belongings from the state highway. The result was this suit in quo warranto.

As already stated, the constitution of Ohio has lodged the power of revocation, alteration or amendment of corporate grants and privileges, whether perpetual or otherwise, in the legislative body of the state, and it alone has the power to revoke these privileges, which it may do either on its own initiative or by expressly delegating this power to its municipal agencies. And in this connection it may be stated, while a grant may be in terms perpetual, since the constitution has reserved to the state the right to repeal, it cannot be held to be perpetual when the state acts under its constitutional prerogative.

The following cases hold that where no power to alter or repeal has been reserved, either in the law or the municipal ordinance, any subsequent action repealing the franchise was an impairment of the contract and unconstitutional under the contract clause of the constitution: Grand Trunk Ry. Co. v. South Bend, supra; Owensboro v. Cumberland Telephone Co., 230 U. S., 58; Boise Water Co. v. Boise City, 230 U. S., 84; Hudson Telephone Co. v. Jersey City, 49 N. J. Law, 303.

In the first case Mr. Justice Lamar said, on page 555:

“In determining whether théy would grant or refuse that consent the municipal authorities were obliged-to balance the present and prospective inconveniences of having trains operated through its streets against the advantage of having the railroad accessible to its citizens. It could have refused its consent, except on terms; it could have forced the road to the outskirts of the town, or could have permitted the company to lay tracks in the more thickly settled parts of the city. When such consent was once given the condition precedent had been performed and the street franchise was thereafter held, not from the city, but from the state which, however, did not confer upon the municipality any authority to withdraw that consent, nor was there any attempt by the council to reserve such power in the ordinance itself.”

Mr. Justice Lurton delivered the opinion in both of the cases reported, in the 230 U. S. Report, and on page 72 of the former case said:

“When the grant was accepted and acted upon by the grantee it became a contract between the city and the telephone company, which could not be revoked or repealed, unless the power to repeal was clearly and unmistakably reserved.”

In that case Mr. Justice Day delivered the dissenting opinion, which was concurred in by three of his associate justices. However, it will be observed, upon examination of this dissenting opinion, that there was no contention as to the principle that the power of revocation must be delegated to the municipal authority, but was based solely upon the view that such delegation of authority had been made by the statutes of Kentucky, for Mr. Justice Day closes his opinion in the following language, page 83 of the Owensboro case:

“In my view the case in its present attitude comes to this: The permission to place poles and string wires in the city of Owensboro was granted under a charter vuhich expressly reserved the right to repeal by subsequent act of the municipal legislature.”

And in the New Jersey case of Hudson Telephone Co. v. Jersey City, supra, approvingly cited by Judge Lurton in the" former case, the learned judge there stated, on page 305:

“No provision is contained in the act under which the prosecutors were incorporated which confers upon a municipality the power to revoke a permission once granted. The grant of the franchise to this company was subject only to a repeal or alteration by the legislature, and when that corporation had acquired vested rights in the mode designated by their charter, it certainly was not in the power of a common council to strip them of any right so acquired.”

A judgment of ouster has been rendered by the majority in this case on the authority of the East Ohio Gas Co. v. City of Akron, 81 Ohio St., 33; but that case is readily distinguished from the case at bar. In the Akron case the legislation of the state with reference to gas companies became a part of the municipal grant, and that legislation provided that the municipalities were “empowered to regulate from time to time” the price of gas, and provided further that in case the price was fixed by the council for a period of not exceeding ten years, upon written acceptance by the company, it should not be lawful for the council to require gas to be furnished at a less price during the period agreed on, not exceeding ten years. Pursuant to this legislation council passed an ordinance on the 26th day of September, 1898, granting the company the use of its streets and attaching a condition that for the first five years it should charge not exceeding twenty-five cents per one thousand feet of gas and for the next five years not exceeding thirty cents per one thousand feet of gas. After the expiration of ten years from September 26, 1898, council passed another ordinance, fixing the price of gas to be furnished by that company at twenty cents per one thousand feet and providing that the company for the ensuing ten years should not charge more than this lower rate provided by the ordinance. The company declined to accept the terms and signified its intention of discontinuing its business in the city, whereupon the city endeavored to restrain it from withdrawing, claiming that its franchise was a perpetual one and that it was obliged to accept the changed rates provided by the city. The plain distinction between that case and this is that in the Akron case, both by statute and under the ordinance itself, a definite time could be fixed between the parties for the furnishing of gas, with a proviso, however, in both the statute and ordinance, that the rates for gas should' not be changed for a period of ten years. When this contract terminated between the parties, in case there was no renewal thereof, the franchise was at an end, and of course either party could withdraw from further continuance under the grant. The state of Ohio had specifically authorized council to make a grant “from time to time,” and when such a grant was made and accepted under the provisions of that law, the time did become definite. To hold otherwise than it did in the Akron case would require the parties to be held to a contract that necessarily lacked mutuality, and it is so stated by the judge delivering the opinion.

In this case the state of Ohio did not authorize the county commissioners to grant a franchise from time to time or to provide for any contract for time stipulation between the parties. The grant of the use of the public highway was indefinite as to time, and the principle involved here is covered by the following propositions of the syllabus in the case of Boise Water Co v. Boise City, supra:

“Where there is no limitation in the general law of the state, nor in the charter of the city, as to duration of franchises for public utilities in the streets, the grant of an easement for that purpose, not specifying a period of duration, is in perpetuity.”

“Where there is a limitation in the law of the state of duration for which easements in streets can be granted by municipalities, an easement-granted for an indefinite period continues for the statutory period.

“There is a distinction between a definite grant for a period longer than the law of the state permits and an indefinite grant; while the former may be altogether void as an effort to obtain that which is illegal, the latter is simply limited in duration to the period established by law, and during that .time it is protected from impairment by the contract clause of the Constitution of the United States.”

This distinction is also noted in Old Colony Trust Co. v. Omaha, 230 U. S., 100.

Another distinction is that in the Akron case there was a delegated power to the municipal council pertaining to gas-rate stipulations which they could agree upon from time to time, but in the present case the legislature has granted to the board of county commissioners the naked authority of permitting the county commissioners, outside of municipalities, to grant an easement in the public highways, and to fix terms and conditions of construction. Sections 3438-3443, Revised Statutes.

Regulatory powers are lodged in the county boards to make reasonable terms and conditions under which these highways shall be occupied, but they do not permit them to employ at their mere pleasure the destructive power endeavored to be utilized in this case. This power is lodged in the legislature of the state.

Upon the facts stated plaintiff is not entitled to a judgment of ouster.

Donahue and Newman, JJ., concur in the dissenting opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Barner v. Barner.

      Courts of appeals — Appeal and error — Jurisdiction in alimony — Must be challenged before decree entered, when.

    (No. 14859
    Decided October 26, 1915.)
    Error to the Court of Appeals of Cuyahoga county.

      Mr. Charles H. Olds, for plaintiff in error.

      Mr. T. J. Moffett and Mr. Paul Hozvland, for defendant in error.
   Judgment affirmed on authority of Cadwell v. Cadwell, ante, 23.

Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker, Jones and Matthias, JJ., concur.


text:
    Hess, Receiver, et al. v. Beard.

      Supreme court — Dismissals—Constitutional questions not involved.

    (No. 14806
    Decided November 9, 1915.)
    Error to the Court of Appeals of Miami county.

      Mr. L. E. Harvey, for plaintiffs in error.

      Mr. T. A. Billingsley, for defendant in error.
   The court finds that the jurisdiction of this court rn this proceeding in error was based on the allegation in the petition in error that it involves questions arising under the constitution of the United States and of the state of Ohio, and the court finds that the record does not disclose that the disposition of the case requires the consideration of any constitutional question, or that such question is involved.

It is, therefore, ordered and adjudged that this cause be, and the same is hereby, dismissed for want of jurisdiction.

Dismissed for zuant of jurisdiction.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    Hirsch v. The City of Cincinnati.

      Supreme court — Dismissals—Constitutional questions not involved.

    (No. 14882
    Decided November 9, 1915.)
    Error to the Court of Appeals of Hamilton county.

      Mr. James S. Myers, for plaintiff in error.

      Mr. Walter M. Schoenle, city solicitor, and Mr. Edwin S. Morrissey, municipal court prosecutor, for defendant in error.
   The court finds that the jurisdiction of this court in this proceeding in error was based on the allegation in the petition in error that it involves questions arising under the constitution of the United States and of the state of Ohio, and the court finds that the record does not. disclose that the disposition of the case requires the consideration of any constitutional question, or that such question is involved.

It is, therefore, ordered and adjudged that this cause be, and the same is hereby, dismissed for want of jurisdiction.

Dismissed for want of jurisdiction.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    Holmes, President, et al., Board of Trustees of Police Relief Fund of Cincinnati, v. The State, ex rel. Delaney.

      Police pensions — Sections 4616 to 4631, General Code — Suspension of payment — By board acting without authority — Mandamus proper remedy — Laches—Statute of limitations — Six years— Section 11222, General Code.

    (No. 14954
    Decided November 9, 1915.)
    Error to the Court of Appeals of Hamilton county.

      Mr. Walter M. Schoenle, city solicitor, and Mr. Saul Zielonka and Mr. Charles Tatgenhorst, Jr., assistant city solicitors, for plaintiffs in error.

      Mr. Denis F. Cash and Mr. Henry T. Hunt, for defendant in error.
   Judgment affirmed on grounds stated in the opinion of the court of appeals (5 Ohio App., 1).

Judgment affirmed.

Nichols, C. J., Johnson, Donai-iue, Newman, Jones and Matthias, JJ., concur.


text:
    The Marysville Water & Light Co. v. The Public Utilities Commission of Ohio.

      Supreme court — Original jurisdiction — Injunction.
    (No. 14969
    Decided December 11, 1915.)
    In Injunction.

      Messrs. Meeker & Gaskill and Messrs. Robinson & .Hoopes, for plaintiff.

      Mr. Edward C. Turner, attorney general, and Mr. Freeman T. Eagleson, for defendant.
   Demurrer to petition sustained for the reason that the court has no original jurisdiction in suits in injunction.

Demurrer sustained.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    Avery et al. v. The City of Akron et al.

      Supreme court — Dismissals—Constitutional question not involved.

    (No. 14982
    Decided December 11, 1915.)
    Error to the Court of Appeals of Summit county.

      Messrs. Otis, Beery & Otis, for plaintiffs in error.

      Mr. Jonathan Taylor, city solicitor, for defendants in error.
   It appearing that there is no constitutional question involved, it is ordered that the petition in error herein be, and the same hereby is, dismissed.

Dismissed for want of jurisdiction.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    Donahey, Auditor of State, v. The State, ex rel. Putnam.

      Civil service — Constitutionality of Sections 486-1 to 486-31, General Code (106 O. L., 400).

    (No. 15061
    Decided December 11, 1915.)
    Error to the Court of Appeals of Franklin county.

      Mr. A. V. Donahey, P. P., for plaintiff in error.

      Messrs. Addison, Taylor, Williams & Cole, for defendant in error.
   Judgment affirmed on authority of Ritsman v. Campbell et al., ante, 246.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman,' Jones and Matthias, JJ., concur.


text:
    Cerri, etc., v. Montalto, Admr. Cerri, etc., v. Tornincasa, Admr. Cerri, etc., v. Zappia, Admr. Cerri, etc., v. Zero, Admr.

      Administration of estates — Aliens dying intestate in Ohio — Foreign consuls eligible to appointment — Section 10617, General Code —Article 14, treaty of ign with Sweden — But not entitled to prior, paramount right, when — Article 17, treaty with Italy— Most-favored-nation clause.

    (Nos. 14965 to 14968
    Decided January 25, 1916.)

      Error to the Court of Appeals of Lorain county.

      Mr. Harry F. Payer and Mr. Frederick A. Henry, for plaintiff in error.

      Mr. George L. Glitsch and Mr. G. A. Resek, for defendant in error, Montal'to, Admr.

      Mr. G. C. Washburn and Mr. C. F. Adams, for defendants in error in three remaining cases.
   Judgments affirmed on authority of Pagano, Admr., v. Cerri, etc., ante, 345.

Judgments affirmed.

Nichols, C. J., Johnson, Wanamaker, Jones and Matthias, JJ., concur.

Newman, J., dissents.

• Donahue, J., concurs in judgment rendered in first three cases, but dissents to judgment in last case above.


text:
    Pollitz et al. v. The Public Utilities Commission of Ohio.

      Supreme court — Moot questions not determined.

    (No. 14928
    Decided February 1, 1916.)
    Error to the Public Utilities Commission.

      Messrs. Henry, Fauver, McGraw & Thomsen, for plaintiffs in error.

      Mr. Freeman T. Eagle son and Mr, S, H. West, for defendant in error.
   It appearing to the court that the order of the public utilities commission complained of has been fully complied with and carried out, that none of the steps provided by law for the keeping of said order in abeyance pending further proceedings were taken or complied with, and that there is nothing left upon which the judgment of this court might operate, the question presented is therefore a moot one and this cause is dismissed on the authority of Miner v. Witt, City Clerk, 82 Ohio St., 237.

Cause dismissed.

Nichols, C. J., Johnson, Donai-iue, Wanamaker, Jones and Matthias, JJ., concur.

Newman, J., not participating.


text:
    The Moody & Thomas Milling Co. v. The City of Akron et al.

      Supreme court — Dismissals—Constitutional questions not involved —Watercourses—Riparian owners.

    (No. 15019
    Decided February 1, 1916.)
    Error to the Court of Appeals of Summit county.

      Messrs. Rogers, Mather & Nesbitt, for plaintiff in error.

      Mr. Jonathan Taylor, city solicitor, and Messrs. Allen, Waters, Young & Andress, for defendants in error.
   It appears from the record that the court of appeals found from the evidence that the plaintiff has in no manner or degree suffered any injury, damage or impairment of its rights by anything the city of Akron has done or intends to do; that in the necessary and proper operation of the waterworks system of said city of Akron, in supplying itself and its inhabitants with water from said stream, no actual or substantial injury, loss or damage is likely to occur to the plaintiff; that the water impounded by the city of Akron in wet seasons does not deprive the plaintiff in error of sufficient water to operate its mill to its fullest capacity, and the water so impounded by the city of Akron, so far as plaintiff is concerned, would go to waste and be unused by it; that the water stored in the wet season and drawn by the city from its reservoir and discharged into the river above- the plaintiff’s mill will materially increase the natural flow of said stream in dry seasons, to the benefit of the plaintiff in error and not to its prejudice.

And it appearing from these findings of fact that the plaintiff in error has not been deprived of any property, either with or without due process of law, and that it has not in any manner or degree suffered any injury, damage or impairment of its rights by anything the defendant in error has done or intends to do, therefore the record in this case presents no constitutional question arising under the constitution of this state or of the United States,- for the consideration of this court, and, there being no constitutional question involved in this case, this court is without jurisdiction in the premises.

Cause dismissed for want of jurisdiction.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias,. JJ., concur.


text:
    The Cleveland-Akron Bag Co. v. The City of Akron et al.

      Supreme court — Dismissals—Constitutional questions not involved —Watercourses—Riparian owners.

    (No. 15020
    Decided February 1, 1916.)
    Error to the Court of Appeals of Summit county.

      Messrs. Rogers, Mather & Nesbitt, for plaintiff in error.

      Mr. Jonathan Taylor, city solicitor, and Messrs. Allen, Waters, Young & Andress, for defendants in error.
   It appears from the record that the court of appeals found from the evidence that the plaintiff has in no manner or degree suffered any injury, damage or impairment of its rights by anything the city of Akron has done or intends to do; that in the necessary and proper operation of the waterworks system of said city of Akron, in supplying itself and its inhabitants with water from said stream, no actual or substantial injury, loss or damage is likely to occur to the plaintiff; that the water impounded by the city of Akron in wet seasons does not deprive the plaintiff in error of sufficient water to operate its mill to its fullest capacity, and the water so impounded by the city of Akron, so far as plaintiff is concerned, would go to waste and be unused by it; that the water stored in the wet season and drawn by the city from its reservoir and discharged into the. river above the plaintiff’s mill will materially increase the natural flow of said stream in dry seasons, to the benefit of the plaintiff in error and not to its prejudice.

And it appearing from these findings of fact that the plaintiff in error has not been deprived of any property, either with or without due process of law, and that it has not in any manner or degree suffered any injury, damage or impairment of its rights by anything the defendant in error has done or intends to do, therefore the record in this case presents no constitutional question arising under the constitution of this state or the constitution of the United States, for the consideration of this court, and, there being no constitutional question involved in this case, this court is without jurisdiction in the premises.

Cause dismissed for want of jurisdiction.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    Dickerhoof v. The City of Akron et al.

      Supreme court — Dismissals—Constitutional questions not presented —Error waived, when.

    (No. 15022
    Decided February 1, 1916.)
    Error to the Court of Appeals of Summit county.

      Mr. W. E. Pardee and ikfr. J. M. Poulson, for plaintiff in error.

      Mr. Jonathan Taylor, city solicitor, and Mr. C. P. Kennedy, for defendants in error.
   This court finds that there was no dispute between the parties as to any constitutional question arising under the constitution of this state or of the United States and no such question is presented to this court.

This court further finds that the claims and erroneous proceedings referred to by the plaintiff were waived.

Cause dismissed for want of jurisdiction.

Nichols, C. J., Johnson, Donai-iue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    Poulson v. The City of Akron et al.

      Deeds — Grantee bound by covenants — Street assessments — Legal objections waived, when.

    (No. 15023
    Decided February 1, 1916.)
    Error to the Court of Appeals of Summit county.

      Mr.' J. M. Poulson and Mr. W. E. Pardee, for plaintiff in error.

      Mr. Jonathan Taylor, city solicitor, and Mr. C. P. Kennedy, for defendants in error.
   The judgment of the court of appeals is affirmed for the reason that it is shown by the record that the deed by which the premises described in the petition were conveyed to the plaintiff’s grantor contained covenants, the acceptance of which by the grantee operated to waive the legal objection to the proceedings which are referred to, and further that said deed contained a clause excepting from the covenants of warranty therein “all taxes and assessments on said premises that become due and payable after this date, the due payment of all which taxes and assessments is assumed by the said grantee, who, by accepting this deed, promises and agrees duly to pay the same as a part of the purchase price for said premises.”

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    Boettler et al. v. The City of Akron.

      Supreme court — Dismissals—Constitutional questions not presented —Watercourses—Riparian owners.

    (No. 15025
    Decided February 1, 1916.)
    Error to the Court of Appeals of Summit county.

      Messrs. Frank & Ream and Messrs. Rogers, Mather & Nesbitt, for plaintiffs in error.

      Mr. Jonathan Taylor, city solicitor, and Messrs. Allen, Waters, Young & Andress, for defendant in error.
   It appears from the record that the court of appeals found from the evidence that the defendant in error, the said city of Akron, in the exercise of its riparian rights, has not deprived the plaintiffs of any of their legal rights as such riparian owners; that it has not invaded or abridged any such rights of the plaintiffs, and that it has not threatened and is not about to exercise its riparian rights in such manner as will in the future, as claimed by the plaintiffs in their petition, deprive the plaintiffs of their legal rights or invade or abridge the same.

And it appearing from these findings of fact that the plaintiffs in error have not been deprived of any property, either with or without due process of law, and that they have not in any manner or degree suffered any injury, damage or impairment of their rights by anything the defendant in error has done or intends to do, therefore the record in this case presents no constitutional question arising under the constitution of this state or the constitution of the United States, for the consideration of this court, and, there being no constitutional question involved in this case, this court is without jurisdiction in the premises.

Cause dismissed for want of jurisdiction.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ.. concur.


text:
    No. 14749.
    Gawne v. The City of Cleveland.
    Decided October 13, 1915.
    Error to Court of Appeals of Cuyahoga county.

      Mr. M. P. Mooney; Messrs. Tolies, Hogsett, Ginn & Morley; Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews and Mr. E. J. Blandin, for plaintiff in error.

      Mr. Newton D. Baker; Mr. John N. Stockwell, director of law, and Mr. Arthur F. Young, assistant director of law, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur. Nichols, C. J., not participating.


text:
    No. 14790.
    The Racine Banking Co. et al. v. Crow.
    Decided October 19, 1915.
    Error to Court of Appeals of Meigs county.

      Mr. Manning S. Webster, for plaintiffs in error.

      Messrs. Bradbury & Miller and Messrs. Ervin & Crow, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Matthias, JJ., concur. Jones, J., not participating.


text:
    No. 14828.
    Bauer v. Nickol et al.
    Decided October 26, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Oscar W. Kuhn, for plaintiff in error.

      Mr. Stephen W. Jones and Mr. E. A. Tepe, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker, Newman and Jones, JJ., concur. Matthias, J., not participating.


text:
    No. 14862.
    Sears v. Steinhilber.
    Decided October 26, 1915.
    Error to Court of Appeals of Crawford county.

      Mr. R. V. Sears and Mr. Benjamin Meek, for plaintiff in error.

      Mr. L. C. Feighner and Messrs. Finley & Gallinger, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 14865.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Koenig.
    Decided October 26, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Maxwell & Ramsey, for plaintiff in error.

      Mr. Wm. C. McLean, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    No. 14871.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Hickman et al., doing business as Hickman-Williams & Co.

      Decided October 26, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Maxwell & Ramsey and Mr. Joseph L. Lackner; for plaintiff in error.

      Messrs. Stephens, Lincoln & Stephens, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    No. 14877.
    Leiser v. Hay.
    Decided November 9, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Bode & Jung and Mr. Mitchell Wilby, for plaintiff in error.

      Mr. C. B. Matthews and Mr. Harry T. Klein, for defendant in error.
   Judgment affirmed.

Johnson, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    No. 14894.
    Bittner, by etc., v. The Dolly Varden Chocolate Co.
    Decided November 9, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Cowell & Lamping, for plaintiff in error.

      Mr. Morison R. Waite and Mr. John Randolph Schindel, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson> Newman and Jones, JJ., concur.


text:
    No. 14895.
    The Cincinnati Traction Co. v. Lutz.
    Decided December 7, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs.

      Kinkead & Rogers, for plaintiff in error.

      Messrs. William J. & Oliver L. Creed, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur. Nichols, C. J., dissents.


text:
    No. 15002.
    The Cincinnati, Lebanon & Northern Ry. Co. et al. v. The City of Cincinnati.
    Decided December 11, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Maxwell & Ramsey and Mr. Joseph S. Graydon, for plaintiffs in error.

      Mr. Walter M. Schoenle, city solicitor; Mr. Carl M. Jacobs, Jr., assistant city solicitor, and Mr. Constant Southworth, acting city solicitor, for defendant in error.
   Judgment affirmed. See journal entry.

It appearing that Section 8897, General Code, is mandatory in its terms both upon the municipality and the railroad company, and that notice to the railroad company could not relieve either the com-, pany or the. municipality from compliance with the terms thereof, and it further appearing that the railroad company has had its day in court for the determination of the reasonableness of the overhead crossing construction and the reasonableness of the cost thereof, the court finds that said Section 8897, General Code, is not in conflict with the constitution, of the United States or the constitution of the state of Ohio.

It is therefore ordered and adjudged by this court, that the judgment of the court of appeals be, and the same is hereby,' affirmed, * * * .

And it is further ordered that said cause be remanded to the common pleas court of Hamilton county, with directions to overrule the demurrer to plaintiffs’ petition and for further proceedings according to law.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    No. 15003.
    The Cincinnati, Lebanon & Northern Ry. Co. et al. v. The City of Cincinnati.
    Decided December 11, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Maxwell & Ramsey and Mr. Joseph S. Graydon, for plaintiffs in error.

      Mr. Walter M. Schoenle, city solicitor; Mr. Carl M. Jacobs, Jr., assistant city solicitor, and Mr. Constant Southworth, acting city solicitor, for defendant in error.
   Judgment affirmed. See journal entry.

It appearing that Section 8897, General Code, is mandatory in its terms both upon the municipality and the railroad company, and that notice to the railroad company could not relieve either the company or the municipality from compliance with the terms thereof, and it further appearing that the railroad company has had its day in court for the determination of the reasonableness of the overhead crossing construction and the reasonableness of the cost thereof, the court finds that said Section 8897, General Code, is not in conflict with the constitution of the United States or the constitution of the state of Ohio.

It is therefore ordered and adjudged by this court, that the judgment of the court of appeals be, and the same is hereby, affirmed, * * * .

And it is further ordered that said cause be remanded to the common pleas court of Hamilton county, with directions to overrule the demurrer to plaintiffs’ petition and for further proceedings according to law.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    No. 14726.
    The Cincinnati & Columbus Traction Co. v. Burch.
    Decided January 25, 1916.
    Error to Court of Appeals of Hamilton county.

      Messrs. Matthews & Klein and Messrs. Dinsmore & Shohl, for plaintiff in error.

      Messrs. Healy, Ferris & McAvoy and Mr. Simeon M. Johnson, for defendant in error.
   On rehearing. Former judgment adhered to. See journal entry.

This court finds that the said traction company is not entitled to enforce the subscription contract sued on against the defendant in error. The record does not disclose that there are any outstanding-unpaid debts of the corporation and the rights of-creditors are not involved in this proceeding.

It is, therefore, ordered and adjudged by this court that the judgment of affirmance heretofore entered herein [92 Ohio St., 540] be, and the same is, adhered to.

Johnson, Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 14819.
    City of Akron v. The Akron-Selle Co.
    Decided February 1, 1916.
    Error to Court of Appeals of Summit county.

      Mr. Jonathan Taylor, city solicitor, and Mr. Scott Kenfield, assistant city solicitor, for plaintiff in error.

      Mr. G. M. Anderson, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    No. 15037.
    Butler v. The Cincinnati Northern Rd. Co.
    Decided February 1, 1916.
    Error to Court of Appeals of Paulding county.

      Messrs. Bentley & McCrystal, for plaintiff in error.

      Mr. Harry N. Quigley and Mr. L. J. Hackney, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Jones, JJ., concur. Matthias, J., not participating.


author: Matthias, J.

text:
    The Board of Commissioners of Mercer County et al. v. Deitsch et al.

      Error proceedings — Questions considered by reviewing court — Confined to errors challenged — Instructions- to jury — Conflict of special findings with general verdict — -Finding as to ditch — Section 6469, General Code — Fi-nal judgment cannot be entered on review, when.

    1. Under the well-established rule that the court of last resort will not consider questions, other than such as go to the jurisdiction of the subject-matter, which were not made in the trial court or assigned for error in the intermediate court, this court will not inquire whether in a given case the submission of interrogatories to the jury was competent where no objection was made to such interrogatories nor to the consideration of the answers thereto in either of the lower courts.
    2. Judgment should not be rendered on special findings of fact as against the general verdict unless such special findings, when considered together, are inconsistent and irreconcilable with the general verdict. The evidence cannot be considered in determining such conflict.
    3. In a proceeding in error from a judgment rendered in the probate court pursuant to the verdict of a jury in the trial of an appeal under Section 6469, General Code, which verdict was that “the ditch will be conducive to public health, convenience and welfare,” the reviewing court is not authorized to reverse and enter a final judgment in favor of the adverse party upon the ground that the special findings of fact “in connection with the evidence” are inconsistent and irreconcilable with the general verdict.
    (No. 14981 —
    Decided February 29, 1916.)
    Error to the Court of Appeals of Mercer county.
    A petition in due form was filed with the county commissioners of Mercer county, praying for the location, deepening, straightening and tiling of a ditch upon the route therein described. Upon hearing and actual view, in all respects in accordance with the requirements of law, the county commissioners found that the improvement sought was necessary, would be conducive to the public health, convenience and welfare and a benefit to the lots and lands’along the line thereof, and, further, that the route described was the best route; and ordered that the improvement proceed as provided by statute governing the same.
    The defendants in error, Catherine Deitsch and others, appealed from the finding and order .of the county commissioners to determine:

      “1. Whether said ditch will be conducive to the public health, convenience and welfare;

      “2. Whether the route thereof is practicable.”
    At the close of the trial and before the jury retired for deliberation the defendants in error submitted 30 questions, which, upon their request, the court directed the jury to answer, and accordingly answers thereto were returned by the jury and therewith the following verdict:
    “1. We find that the ditch will be conducive to public health, convenience or welfare.

      “2. We find that the route of said ditch is practicable.”
    A motion for judgment for defendants in error, notwithstanding the general verdict, was overruled, as was also a motion for a new trial, and judgment was entered on the verdict, which was affirmed by the court of common pleas. Error was then prosecuted in the court of appeals, which held that “The special findings of fact by the jury, in response to the request of plaintiffs in error are in connection with the evidence inconsistent with the general verdict, and therefore irreconcilable with the general verdict, and the general verdict should be set aside. And the court do find no other error in said record and proceedings in either of said courts below.”
    The court thereupon ordered the ditch proceeding dismissed and rendered final judgment for the defendants in error, to reverse which judgment the petition in error is presented in this court.
    The defendants in error have filed a cross-petition in error, by which they present the question of the validity of the action of the court of appeals, on June 25, 1915, upon the application of the defendants in error, directing that the entry reversing the judgment of the common pleas court be modified by entering the same as of date of May 12, 1915, which was the date of the filing thereof, instead of March 26, 1915, the date the decree was announced and opinion filed.

      Mr. John W. Loree and Mr. B. A. Meyers, for plaintiffs in error.

      Mr. J. D. Johnson, for defendants in error.
   Matthias, J.

The defendants in error, by a cross-petition in error filed herein, question the validity of the action of the court of appeals altering the date of its journal entry, claiming that the court’s action in that regard was without jurisdiction, and complain that but for such alteration of the entry the record would disclose that this court has not acquired jurisdiction of the case.

The rule has been so frequently stated and so universally recognized that judgments are under the control of the court which pronounces them, during the term at which they are rendered, that nothing further than a restatement of the rule and application thereof to this case seems necessary. It appearing that the judgment of the court of appeals reversing the common pleas was entered as of March 26, 1915, the date the decision was announced and opinion filed, whereas, by reason of delay occasioned by disagreement of counsel as to what the journal entry should contain, it was not approved by the court until May 12, 1915, it was within the power of that court at any time during the term to order the entry of its decree as of the latter date.

The defendants in error, being aggrieved by the order of the county commissioners that the ditch improvement petitioned for be proceeded with, appealed to the probate court under favor of Section 6469, General Code, upon the questions whether such ditch will be conducive to the public health, convenience or welfare, and whether the route thereof is practicable. In accordance with the provisions of Section 6475, General Code, the premises along the route of the ditch were examined by, and evidence was submitted to, the jury upon the matters given it in charge by virtue of such appeal proceeding. At the close of the trial and before the jury retired for deliberation, the defendants in error submitted 30 interrogatories and requested the court to require answers thereto by the jury, which was done and answers accordingly returned. The verdict of the jury was a finding that the ditch will be conducive to the public health, convenience or welfare, and that the route of said ditch is practicable. It was contended by defendants in error, both in the trial court and in the reviewing court, that the special findings of fact were inconsistent with the conclusion of the jury that the ditch will be conducive to the public health, convenience or welfare, and, therefore, in that regard controlling the verdict. No contention is made, however, that the answer to any interrogatory is inconsistent with the finding that the route of said ditch is practicable. Neither the probate court nor the common pleas was in accord with the view urged by defendants in error, but the court of appeals found that “Upon the question whether the proposed ditch will be conducive to the public health, convenience and welfare, the special findings of fact by the jury '* * * are in connection with the evidence inconsistent with the general verdict, and therefore irreconcilable with the general verdict, and the general verdict should be set aside.”

It is now contended by the plaintiffs in error that the verdict to be rendered by the jury in such proceeding is in no sense a general verdict, but is itself merely a finding of an ultimate fact from the conditions disclosed by a view of the premises affected by the proposed improvement and the evidence adduced, and that, therefore, the submission of these several interrogatories which call for a finding of particular facts was unauthorized. It appears, however, that the plaintiffs in error offered no objection whatever to such interrogatories, nor to any of them, nor to the direction of the court that the jury answer them; neither does it appear that plaintiffs in error objected to the consideration of such answers in either of the courts below. An objection to their consideration is made for the first time in this court, and it is now urged that such interrogatories were improperly submitted and should not have been considered by the court of appeals. However interesting and attractive the question thus presented may be, we are of opinion that discussion and decision thereof in this case are precluded by the rule that “Where a cause has been brought up for review from an intermediate court of appellate jurisdiction to the court of last resort, questions, other than such as go to the jurisdiction of the subject-matter, which were neither made in the court of first instance nor assigned for error in the intermediate court, will not be considered. Nor, with the limitation referred to, will a question which could have been, but was riot, raised in the intermediate court be considered by the court of last resort.” 2 Cyc., 676; State v. Wirick, 81 Ohio St., 343, and cases cited.

Necessarily assuming then, for the purposes of this case, that the verdict is a general verdict, the question arises whether, under the provisions of Section 11464, General Code, the special finding of facts is so inconsistent with such verdict as to control and authorize the court to disregard the verdict and render a judgment for the adverse party upon such special finding. The rule to be applied in reaching an answer to such, question is very tersely stated in the case of Davis v. Turner, 69 Ohio St., 101, as follows: “To be inconsistent with the general verdict as contemplated by Section 5202, Revised Statutes [11464, General Code], it must appear that the special findings are irreconcilable, in a legal sense, with the general verdict; and to justify the court in setting aside or disregarding the general verdict on the ground that it is inconsistent with such special findings, the conflict must be clear and irreconcilable.”

It seems quite apparent that when the court of appeals came to apply this test to the special findings in the instant case, the special findings standing alone were not regarded as sufficient to overcome the general verdict, for that court looked to the evidence and found that such special findings “in connection with the evidence” were inconsistent with the general verdict. In view of the finding by that court that the record discloses no other' error, the question, whether, in considering a motion for judgment on answers to interrogatories notwithstanding the verdict, inquiry ma!y be made into the evidence, becomes quite pertinent.

In the case of Gale v. Priddy, 66 Ohio St., 400, the court makes the observation that our statute upon this subject is identical with that of the state of Indiana, having been adopted from that state, and, hence, that the settled construction there is presumed also to have been adopted here.

The cases are quite numerous in which the supreme court of Indiana has construed the statutory provision here in question, and the holding has been uniform that, in considering whether facts specially found are irreconcilable with the general verdict, no inquiry can be made into the evidence adduced on the trial. The decisions covering such question particularly in point are Stevens v. The City of Logansport, 76 Ind., 498, and Shaffer v. Ryan, 84 Ind., 140. From the opinion in the former case we quote the following statement, at page 501, which we find particularly applicable to this case: “The question to be decided is not whether, in the light of the evidence adduced, the general verdict is inconsistent with the facts found; the remedy in case of such an inconsistency is a new trial. But, upon the motion for judgment non obstante, the general verdict prevails over the special findings, if there could have been, under the issues, proof of supposable facts, not inconsistent with those specially found, sufficient to sustain the general verdict; or, in other words, sufficient to reconcile the general verdict with the special answers.”

Unquestionably such rule should be applied in a case of the character of the one now under consideration, which is a special proceeding provided by statute whereby the particular questions upon which appeal is taken from the order of the county commissioners may be submitted to and determined by a jury, not alone upon the evidence adduced in court, but from a consideration of the physical conditions along the line of the proposed improvement, disclosed by an actual view of the premises, authorized by the statute governing such proceeding. Indeed, the information acquired by such view may be most influential, if not absolutely controlling, in the consideration of the special matters submitted to the jury.

Our next question is whether the special findings alone are so inconsistent with the general verdict as to be irreconcilable therewith. We deem it unnecessary to set out in detail these several interrogatories and answers. It is sufficient to state' that in answer to certain questions the jury found that the public highway crossed by said improvement would be afforded better drainage thereby; that within four rods of the proposed ditch there is a swale on each of two farms which would be drained; that the present ditch is not deep enough to carry off the surplus water which gathers along the line, permitting water to stand and become stagnant upon four different farms, and that the proposed ditch would conduce to the public health by doing away with such stagnant water. Upon an inquiry as to whether these special findings of the jury support a conclusion that the proposed ditch will be conducive to the public health, convenience or welfare it is proper to consider what is meant by such terms. “Conduce” means only to contribute to a result; hence, in order to support the verdict of the jury, it is essential only that it appear that such improvement will contribute to or promote the public health, convenience or welfare. It was held by this court in the early case of Chesbrough v. Commissioners, 37 Ohio St., 508, that it is not essential that the public at large shall be benefited, but only that part of the public affected by want of proper drainage. The court in that case observed that the injury from want of drainage and the benefits derived from a ditch are necessarily local in their nature, and it was there held that if the proposed ditch would be conducive to the health, convenience or welfare of the neighborhood through which it would pass, that was sufficient to authorize its construction. The rule there stated has been approved and applied in the later case of The Lake Erie & Western Rd. Co. v. Commissioners of Hancock County, 63 Ohio St., 23.

The finding of the jury from the evidence adduced and their view of the premises that the proposed improvement would drain swales and stagnant water that would otherwise stand upon the land in the vicinity of the line of said improvement fully supports the conclusion announced in their verdict.

Although in response to other interrogatories the jury returned answers which tend to show a lack of necessity for the proposed ditch improvement and eliminate from consideration certain facts which, had they been found otherwise, could also have been urged as' supporting the claim that the ditch would be conducive to the public health, convenience or welfare, yet' it is quite apparent that facts were found which are in entire accord with the verdict of the jury, and when taken together the special findings of fact are not irreconcilable with and repugnant to, but on the contrary fully support, the general verdict.

It follows that the court of appeals was in error in entering a final judgment for the plaintiffs in error in that court. Such judgment is therefore reversed and that of the common pleas and probate courts affirmed.

Judgment reversed.

Nichols, C. J., Johnson, Donahue, Wanamaicer, Newman and Jones, JJ., concur.


author: Jones, J.

text:
    Limbaugh v. The Western Ohio Railroad Co.

      Parties — Jurisdiction over actual wrongdoer — Appearance and substitution — Charge to jury — Special requests included in general charge.

    1. When the actual wrongdoer, who is not served or made a party defendant in an action, has been substituted for another mistakenly sued, and, after such substitution, appears by counsel and contests the merits, it cannot afterwards question the jurisdiction of the court over it.
    2. It is not prejudicial error to refuse special requests before argument, when the substance thereof has been- fully embodied in other requests given before argument, at the instance of the same party.
    (No. 14990 —
    Decided February 29, 1916.)
    Error to the Court' of Appeals of Allen county.
    The Western Ohio Railroad Company, as lessee, was, at the time of the injury to M. J. Limbaugh, operating its cars over an interurban railroad belonging to The Western Ohio Railway Company. Suit was filed against The Western Ohio Railway Company and service made on that defendant. After the issues were joined the case came on for trial in that situation, the defendant railway company being represented by the firms of Wheeler & Bentley and Goeke, Anderson & 'Musser as its attorneys. During the progress of the trial it developed that the negligent acts, if any, were committed by The Western Ohio Railroad Company, the operating corporation, and not by the defendant served. The plaintiff called one F. D. Carpenter as a witness, who testified that he was president of the railway company, the lessor, and was also general manager and vice president of the lessee railroad company, and that the two firms of counsel appearing for the defendant sued were also attorneys for the railroad company. On the development of these facts, and just before resting the case, the plaintiff moved the court for leave to amend the petition by substituting the name of The Western Ohio Railroad Company in place of The Western Ohio Railway Company. This motion was sustained by the court, and the record discloses that counsel excepted on behalf of the defendant, but for which particular defendant it does not appear.
    Immediately after such substitution counsel for. the defendant asked the court to “direct the jury to return a verdict in its favor of no cause of action.” This request was refused. Thereupon evidence was offered by the defendant in support of the defensive issues tendered. The defendant also requested special instructions, which were given to the jury before argument.
    A verdict and judgment were rendered against the substituted defendant in the sum of $548. The court of appeals reversed this judgment for the reason that the trial court “erred in substituting plaintiff in error as defendant below.”

      Messrs. Half hill, Quail & Kirk, for plaintiff in error.

      Messrs. Wheeler & Bentley and Messrs. Goeke, Anderson & Boesel, for defendant in error.
   Jones, J.

Jurisdiction over the substituted defendant could be obtained by its voluntary appearance in the action. Such appearance was entered when its counsel appeared and contested the merits of the action after the substitution had taken place. The record discloses that, before substitution, the vice president and general manager of the substituted compány was in court and testified that the law firms defending the railway company also represented the substituted defendant, the firm of Goeke, Anderson & Musser representing it generally and Wheeler & Bentley representing it locally at Lima. It also developed that if a tortious act had been committed, it had been committed by the operating company, the defendant substituted by the court. After the order of substitution by the court the original defendant railway company had, in effect, been dismissed, and the case thereafter proceeded with the railroad company ostensibly contesting the case upon its merits. Since the case proceeded under the original pleadings, with the same firms of counsel appearing for and defending the substituted defendant, the presumption is conclusive, under the facts developed, that such firms not only entered the voluntary appearance of the substituted defendant, but had authority so to do. Furthermore, the corporation actually operating and causing the alleged negligent act was the substituted company, a fact which, if not known when the issues were joined, was known at the time the substitution was made, and under our statute of jeofail, Section 11363, General Code, the court had full power to amend by substitution, where no abuse of discretion has been shown, if jurisdiction were acquired.

This principle is supported by the case of Boehmke v. The Northern Ohio Traction Co., 88 Ohio St., 156. In the present case, had the railroad company obtained a judgment in its favor on the merits, it would no doubt have availed itself of such favorable result, and in such event it would prob-' ably claim not only the fruits of victory but that it also consented to jurisdiction over it after substitution by entering the case defensively upon its merits. If the attorneys in the case had no authority to represent the substituted company, the latter company of course would not be bound, but every fact and presumption disclosed by this record support the conclusion that counsel had full authority to represent both companies in this action. Ordinarily an objection to the jurisdiction of the person should be taken at the earliest opportunity of the party. (Long v. Newhouse et al., 57 Ohio St., 348.) In the present case that opportunity arose when the new defendant was made a party, at which time it became incumbent upon it to stand upon the question of jurisdiction over its person. Had its counsel then definitely withdrawn from the cause, after the overruling of their motion at the close of the plaintiffs evidence, or had they later confined their defense solely to the question of jurisdiction over the substituted company in order to .supplement the record for review upon that question, a judgment against the substituted defendant would have been erroneous for the reason that neither service nor appearance had been obtained. However, with full knowledge that the substituted defendant was the real party against whom the wrongful act was claimed, its counsel accepted the situation, remained in the case and contested the issues of negligence, and it cannot now be claimed under such circumstances that there was no voluntary appearance to the action.

Although it appears from the journal entry that the court of appeals reversed the trial court because of the substitution referred to, defendant in error claims that the reversal should be sustained because of other errors committed on the trial, notably the refusal to give special instructions asked before argument. The defendant requested ten special instructions, six of which were given and four refused. Two of the requests refused were pertinent and unobjectionable. These referred to the quantum of care that should have been exercised by the plaintiff in approaching the railroad crossing'. However, this degree of care and the details of plaintiff’s approach were fully embodied in the other special instructions that were given by the court to the jury before argument at the instance of the defendant and which were substantially similar to the requests refused. The defendant’s counsel had simply gowned the subject in a little different form. There was, therefore, no prejudicial error committed by the court in refusing the two requests which had been substantially given.

The judgment of the court of appeals is reversed and that of the common pleas affirmed.

Judgment reversed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Matthias, JJ., concur.


author: Newman, J.

text:
    Hostetler v. Peters et al.

      Descent and distribution — Ancestral and nonancestral property — Testatrix died leaving sister — Devise to niece, who died intestate, without issue — Life estate in husband of niece — Fee simple title in her brother, when.

    M. J. S., by her last will and testament, devised her real estate to a niece, S. J. H. M. J! S., at the time of her death, left surviving a sister, E. P., and children of a deceased sister, her only heirs at law, who would have inherited the real estate had M. J. S. died intestate. S. J. H. and one E. A. P. were children of E. P., neither of whom would have inherited any portion of the real estate from M. J. S. had she died intestate. S. J. H. died intestate, without issue, leaving surviving her husband, D. M. PI. Held: The real estate of which S. J. PI. died seized was ancestral within the meaning of Section 8573, General Code, and upon her death it passed to and vésted in her husband relict during his natural life and at his death to her brother, E. A. P.
    (No. 14949 —
    Decided February 29, 1916.)
    Error to the Court of Appeals of Tuscarawas county.
    Plaintiff in error, David M. Hostetler, brought an action in the- court of common pleas of Tuscarawas county, in which he claimed to be the owner in fee simple of three tracts of real estate described in his petition and asked that his title thereto be quieted and that certain alleged claims of the defendants in and to said real estate be adjudged null and void. The court of common pleas decided adversely to plaintiff in error upon the several issues made by the pleadings. The case was appealed to the court of appeals and was there heard upon the pleadings and the evidence, and the court found that the defendant Edward A. Peters was entitled, by virtue of a certain lease, to the possession of the real estate described in the petition as tract No. 3 until the 13th day of March, 1919, that a certain legacy of $800, set up in the answer and cross-petition of two of the defendants, was intended to be and was a lien and charge upon all of said real estate, subject to the said leasehold estate of Edward A. Peters, and found further that plaintiff in error had but a life estate in the real estate described in his petition, subject to said legacy and said leasehold estate in tract No. 3, and that said Edward A. Peters was owner in fee simple of the remainder in all of said real estate, subject to said legacy and leasehold estate. The judgment and, decree of the court was, in substance, that if said legacy was not paid, within 30 days from the date of the decree, to the persons named therein, certain portions of the real estate be sold, and out of the proceeds of said sale, after the payment of costs and of said legacy, there be paid to plaintiff in error the value of his life estate, and that the remainder be paid to the defendant Edward A. Peters. Upon application of plaintiff in error the court of appeals was directed to certify its record to this court.

      Mr. Ed. C. Seikel, for plaintiff in error.

      Mr. Henry Bowers; Mr. John C. Welty and Mr. C. L. Cronebaugh, for defendants in error.
   Newman, J.

The' real estate in controversy was real estate of which the wife of plaintiff in error, who died August 22, 1911, intestate and without issue, was seized. The court of appeals held that plaintiff in error had but a life estate therein and this holding is challenged by counsel for plaintiff in error. If the real estate in question was ancestral, within the meaning of the statutes of descent, the holding of the court below was correct. To determine how this real estate passed from the wife of plaintiff in error, it is necessary to know how it came to her. It was originally owned by the maternal aunt of the wife of plaintiff in error, one Mary Jane Shroy, who died testate April 15, 1909. By her last will and testament this real estate was devised to this niece. Mary Jane Shroy left surviving her a sister, Elizabeth Peters, and three children of a deceased sister, her only heirs at law, to whom the real estate would have descended had she died intestate. Serena Jane Hostetler, wife of plaintiff in error, and the defendant Edward A. Peters were children of Elizabeth Peters, and it is conceded that neither of them would have inherited any part of the real estate in question from Mary Jane Shroy, for, as stated before, their mother was living at the date of the death of Mary Jane Shroy.

Section 8573, General Code, provides in part:

“When a person dies intestate, having title or right to any real estate or inheritance in this state, which title came to such intestate by descent, devise, or deed of gift from an ancestor, such estate shall descend and pass in parcenary to his or her kindred in the following course:
“1. To the children of such intestate, or their legal representatives.
“2. If there are no children or their legal representatives living, the estate shall pass to and vest in the husband or wife, relict of such intestate, during his or her natural life. ^
“3. If such intestate leave no husband or wife, relict of himself or herself, or at the death of such relict, the estate shall pass to and vest in the brothers and sisters of the intestate who are of the blood of the ancestor from whom the estate came, or their legal representatives, whether such brothers and sisters be of the whole or half blood of the intestate.”

The court of appeals took the position that the real estate in question came to the wife of plaintiff in error by devise from an ancestor. The wife dying intestate and there being no children or their legal representatives, the estate, under the provisions of subdivision 2 above quoted, passed to and vested in the husband, plaintiff in error, during his life, and at his death, under the provisions of subdivision 3, passed to and vested in the defendant Edward A. Peters, brother of the intestate, of the blood of the ancestor, Mary Jane Shroy, from whom the estate came.

It is the contention of plaintiff in error that the property was not ancestral and therefore was controlled by Section 8574, General Code, which in part is as follows:

“If the estate came not by descent, devise, or deed of gift, it shall descend and pass as follows:
“1. To the children of the intestate and their legal representatives.
“2. If there are no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate.”

This section has been construed to provide for the descent of all real estate which did not come to the intestate by descent, devise or deed of gift from an ancestor. (Brower et al. v. Hunt et al., 18 Ohio St., 311.) If this section is to control the descent of the real estate here involved, plaintiff in error would be the owner in fee simple under the provisions of the second subdivision thereof. In support of the contention that this is not ancestral property counsel rely upon Brewster v. Benedict et al., 14 Ohio, 368, where it was held: “Under the statutes of Ohio, to regulate descents, .etc., the property of an intestate, coming to him by devise, or deed of gift, when he would, by law, have inherited the same property, must descend to those heirs who are of the blood of the person who made the devise, or deed of gift, whether such person be the lineal ancestor of the intestate or not.”

In that case an uncle was held to be the ancestor of his nephew and that certain property devised by Lhe uncle to the nephew passed from the nephew, who died intestate, as ancestral property. Counsel contend that under the holding in the Brewster case the test is, Would the intestate have inherited the real estate had there been no will ? If this be true, then, in the instant case, the property would not be ancestral, for the wife of plaintiff in error would not have inherited the same, ás her mother was living at the time of the death of the aunt.

In Birney v. Wilson et al., 11 Ohio St., 426, Judge Peck, in the opinion, says: “In accordance with this view, it may now be regarded as the settled law of Ohio, that the word ‘ancestor,’ as used in our statutes of descents, means anyone from whom the estate was inheritable by. the intestate, as heir, in the absence of other and nearer heirs.” In support of this Brewster v. Benedict et al., supra, is cited. It is evident that Judge Peck placed a construction on the holding in the Brewster case different from the one for which counsel here are contending.

In the case of Springer & Taylor v. Fortune et al., 2 Handy, 52, where the facts are very similar to those of the case at bar, it was held that an uncle was the ancestor of his niece, within the meaning of the statutes of descent. We quote from the opinion of Judge Gholson, at page 58:

“In the idea of the term ‘ancestor,’ as derived from the legal definition of a descent, two things are to be observed: the character of the estate, and the personal relationship, or the act of law and the right of blood. It was in view of this personal relationship and right of blood that the legislature used the words 'any ancestor.’ The statute was framed in deference to a very common and almost instinctive desire that those of one’s own blood should inherit his estate. This desire was supposed to exist in any devisor or donor who might give an estate to one of his own kindred and blood.
“That this personal relationship was considered, is clearly shown by the provision of the statute, that, if there be no children, and no brothers and sisters of the intestate, of the blood of the ancestor from whom the estate came by a deed of gift, then such ancestor, if living, shall inherit the estate. And this provision, as to the case of a deed of gift from a living ancestor, shows that the test whether the donee would have inherited, cannot furnish a proper general rule; for how can it be known who would inherit, until the death of the ancestor ?”

Applying to the case under consideration the law which Judge Peck in Birney v. Wilson et al., supra, says was the settled law in Ohio, followed in Lessee of Prickett et al. v. Parker, 3 Ohio St., 394, where it was held that by an ancestor was meant anyone from whom the estate is inheritable, we are constrained to hold that the property in question is ancestral property and that it is controlled by the provisions of Section 8573.

In the brief of counsel for plaintiff in error objections are made to the holding of the court of appeals as to the leasehold estate and the legacy, but in oral argument these objections were withdrawn and the only question presented to us for consideration was the one which we have determined.

Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker, Jones and Matthias, JJ., concur.


author: Wanamaker, J.

text:
    The Cincinnati, Milford & Loveland Traction Co. v. The State of Ohio.

      Taxation — Public utilities — Gross earnings — Receipts under traffic agreement — Between interurban and street railway — Section 5418, General Code.

    Under Section 5418, General Code, “gross earnings” shall not be subjected to reduction by subtracting the amount of rentals paid by the company reporting to some other company, whether such rentals be in a lump, sum or arrived at by various computations as to passenger traffic, freight traffic or any other contract or agreement that the company reporting may have with any other company.
    (No. 14944 —
    Decided February 29, 1916.)
    Error to the Court of Appeals of Hamilton county.
    In 1904 The Cincinnati Traction Company was operating and maintaining, under a franchise granted by the city of Cincinnati, tracks and wires from a point in the center of said city to a point on Madison road where it intersected with an interurban railroad known as The Cincinnati, Milford & Loveland Traction Company, which latter company was maintaining and operating 28 miles of tracks and wires from said point of intersection to Blanchester, Ohio.
    On the 19th day of March, 1904, the Cincinnati company and the interurban company entered into a contract, which .contained among other things, these provisions as summarized by counsel:
    “(1) The Traction Company agrees to furnish to the Interurban Company for the transportation of its cars from the point of intersection to the Interurban Company’s passenger and freight depot in Cincinnati, tracks and electric power, the cars to be manned and operated by employes of the Interurban Company.
    “(2) The Traction Company agrees to allow the Interurban Company to run its cars, passenger, freight and combination of both passenger and freight, over its said tracks and to furnish the power for the running thereof.
    “(3) The Interurban Company agrees to collect not less than five (5) cents, the sum charged by the Traction Company for passage between these two points, from each passenger carried on its cars.
    “(4) The Interurban Company agrees to pay to the Traction Company:
    “(a) Three (3) cents out of every five (5) cents collected from passengers, and in order to prevent the indiscriminate riding on the cars of the Interurban Company of people who paid no fare, three (3) cents was to be paid for all passengers, whether or not the fare was collected.
    “(b) The proportion of the gross earnings derived from such traffic (freight) on each car, as the proportion which the car miles traveled on the line of the Traction Company bears to the total number of car miles traveled by each car on the line of both companies in the carriage of freight, and in order to prevent the indiscriminate carrying of express and freight matter free, three (3) cents per package or parcel carried as either express or freight matter free, on any of its combination cars, and further all express, freight or baggage matter carried on combination cars for charges, to be accounted for in the same manner as the accounting for freight articles carried on regular freight cars.
    “(c) For advertising carried in the cars, the same proportion of earnings derived therefrom as was provided for the carrying of express and freight matter.”
    The two companies proceeded to operate under this agreement, and on June 30, 1911, the interurban company reported to the state its gross earnings for the year preceding said date, and deducted from the total so reported, on which it admitted its readiness to pay its excise tax, the amount it paid to the traction company under the provisions of the above-mentioned agreement. The amount so deducted, if it had been included, would have increased the amount due by way of excise tax in the sum of $237.24. The traction company included this amount in its gross earnings in its statement to the state of Ohio for the year ending June 30, 1911, and paid its taxes on the same.
    The interurban company now claims that to include the same amount in its report of gross earnings to the state would be a species of double taxation, against which it is protected by the constitution. It further contends that the agreement between The Cincinnati Traction Company and the interurban company was in the nature of a mere traffic agreement and that the sum of three c’ents per passenger was collected by the interurban company and paid over to the traction company merely as agent for the latter company, and therefore the charge should not be made against said interurban company.
    The pleadings were so drawn as to raise a question of law on demurrer filed by the state of Ohio to the answer of the interurban company. The demurrer of the state of Ohio was sustained and judgment entered in its favor. This judgment was affirmed by the court of appeals of Hamilton county.
    Error is now prosecuted to this judgment.

      Messrs. Gordon, Morrill & Ginter, for plaintiff in error.

      Mr. Edward C. Turner, attorney general, and Mr. Clarence D. Laylin, for defendant in error.
   Wanamaker, J.

It is admitted that the tax sought to be collected in this case is what is known as an excise tax. An excise tax is a tax assessed for some special privilege or immunity granted to some artificial or natural person, based upon the grant of such privilege or immunity.

In the case of a corporation it is sometimes spoken of as a franchise tax. By reason of the fact that the corporation is chartered by the government, endowed with unusual powers, given special immunities and limited liability, it has been repeatedly held in the various courts of the various states that such exercise of the taxing power is valid and constitutional and is not a tax upon property, but a tax on privilege, on immunity, on special favor. The sole question here is whether or not, under the statute, the several amounts paid to the Cincinnati company should have been included in the gross earnings reported by the interurban company, and it is agreed that the statutes of the state of Ohio, taken in conjunction with the agreement between the Cincinnati company, and the interurban company, should determine this question.

The statutes pertaining to this controversy are as follows:

“Sec. 5418. The term ‘gross earnings’’ shall be held to mean and include the entire earnings for business done by any person or persons, firm or firms, co-partnership or voluntary association, joint stock association, company or corporation, wherever organized or incorporated, from the operation of any public utility, or incidental thereto, or in connection therewith. The gross earnings for business done by an incorporated company, engaged in the operation of a public utility, shall be held to mean and include the entire earnings for business done by such company under the exercise of its corporate powers, whether from the operation of the public utility itself or from any other business done whatsoever.”
“See. 5470. Each public utility, except express, telegraph and telephone companies, and street, suburban and interurban railroad and railroad companies, doing business in this state, shall, annually, on or before the first day of August, and each street, suburban and interurban railroad and railroad company, shall, annually, on or before the first day of September, under the oath of the person constituting such company, if a person, or under the oath of the president, secretary, treasurer, or chief officer in this state, of such association or corporation, if an association or corporation, make and file with the commission a statement in such form as the commission may prescribe.”
“Sec. 5473. In the case of each street, suburban or interurban railroad company, such statements shall also contain the entire gross earnings, including all sums earned or charged, whether actually received or not, for the year ending on the thirtieth day of June next preceding, from whatever source derived, for business done within this state, excluding therefrom all earnings derived wholly from interstate business or business done for the federal government. Such statement shall also contain the total gross earnings of such company for such period in this state from business done within the state.”
“Sec. 5478. On the first Monday of October, the commission shall ascertain and determino the gross earnings, as herein provided, of each street, suburban and interurban railroad company whose line is wholly or partially within this state, for the year ending on the thirtieth day of June next preceding, excluding therefrom, as to each of the companies named in this section, all earnings derived wholly from interstate business or business done for the federal government. The amount so ascertained by the commission shall be the gross earnings of such street, suburban or interurban railroad company for such year.”

The foregoing sections provide in substance what shall be considered gross earnings, and under Section 5484, General Code, the company is required to pay an excise tax of 1.2 per cent, on such gross earnings.

After a careful examination of the agreement between The Cincinnati Traction Company and the interurban company we are clearly persuaded that the amount to be paid over to The Cincinnati Traction Company was in the nature of a rental for the use of the latter company’s track, its motor power and terminal privileges that were used by and furnished to the interurban company in the transportation of its passengers and freight.

Section 5418, General Code, is a section of definition and therein the legislature provides what is meant by the words “gross earnings.” This being a public utility corporation, the latter part of that section clearly controls, where it is provided that “gross earnings * * * shall be held to mean and include the entire earnings for business done by such company under the exercise of its corporate powers, whether from the operation of the public utility itself or from any other business done whatsoever.”

In short, the paramount purpose of the state, in assessing an excise or franchise tax against a corporate public utility, evidently was to assess with reference to the amount of business done by such company, and it concluded, wisely no doubt, that as an evidence of the amount of business done it would base the assessment on the “gross earnings” of the company. If this were net earnings it would be more difficult of determination, for there would need to be deducted interest on its mortgage, or its bonds, expense of maintenance, motor power, rolling stock, office charges, etc. But the language, “gross earnings,” clearly requires that no deduction shall be made for any of these or for rentals of any of its connecting lines used or operated by such public utility company, such as the interurban company in this case.

If the amount of rental due from the interurban company to the traction company were a lump sum, certainly the interurban company would not contend that such lump sum for rental to The Cincinnati Traction Company of the latter’s tracks, motor power, terminals and the like, should be deducted from the other gross earnings of the company. But the mere fact that the amount is not a lump sum, but a sum arrived at by various computations as to passenger traffic, freight traffic, advertising and the like, should not make any difference in principle. The gross earnings would be determined in the same way.

The mere fact that the same gross earnings may be used as the basis of computation by two or more corporations or public utilities cannot affect the constitutionality of the act or the legality of the method of computation. That is but an incident to corporate dealings and transactions in their business relations, one with the other, and the same sum may pass from one corporation to another during the year, and therefore must be included as business done by, or gross earnings of, each one of the several corporations.

Judgment affirmed.

Johnson, Donahue, Newman, Jones and Matthias, JJ., concur.