text:
    The Variety Iron & Steel Works Company v. Poak.

      Master and servant — Duty of employer to countersink set-screw, when — Section 1027, General Code — Failure to comply therewith negligence per se — Charge to jury.

    1. Section 1027, General Code, imposes upon the owners and operators of shops and factories the absolute and positive duty to cover, cut off or countersink keys, bolts, set-screws and all parts of wheels, shafting' or other revolving machinery projecting unevenly beyond the surface of such revolving machinery.
    2. In an action for damages predicated upon the failure of such owner or operator to comply with the requirements of this statute it is the duty of the court to instruct the jury that such failure is negligence per se.

    (No. 14265
    — Decided February 3, 1914.)
    Error to the Court of Appeals of Cuyahoga county.
    The action out of which this error proceeding arises was brought in the common pleas court of Cuyahoga county by Cortes Poak against The Variety Iron & Steel Works Company to recover damages for injuries alleged to have been sustained by reason of the negligence of the company.
    Poalc was in the employ of the company in the capacity of a drill-press operator. The drill press, as described in the petition, consists of a table, two arms or rods extending upwards, and joined at the top by an arm to hold the rods firmly, and a shank which is attached to a shaft by means of a belt, from which shaft the drill gets its power; the belt is manipulated by a belt shifter which will shift the belt from a loose pulley to a power pulley; the table may be raised or lowered by means of a crank; the drill is fastened into and held by what is known as a shank or shoulder by means of a set-screw, and the head of said drill may be raised and lowered by means of a crank.
    Plaintiff alleges that on the 23d day of December, 1910, he was operating the drill press and was engaged in boring holes through steel plates; that he had finished boring several holes, and was in the act of shifting the steel plates so as to get the plates into position to drill another hole, when suddenly and without any warning, and without any knowledge on his part of impending danger, the sleeve of his shirt suddenly caught upon the set-screw which held the drill into the shank or shoulder, and which set-screw projected out from the side of the shank or shoulder about an inch and a half, the drill at the time being in operation in the shaft, and the setscrew revolving at a high rate of speed; that as a result of being caught upon said set-screw, the sleeve of his shirt was wound about the screw, and plaintiff was raised from the ground and whirled around the machine, and his right arm was torn, mutilated and broken to such an extent that the same had to be amputated at the shoulder.
    It is alleged that the said set-screw was included in the class of set-screws required by the statutes of Ohio to be countersunk.
    Plaintiff bases his right of recovery upon the failure of the company to cover, cut off or countersink the set-screw, as required by the provisions of Section 1027, General Code. He alleges, among other things, that the defendant was guilty of negligence and carelessness in having and maintaining and permitting to be operated the drill-press machine with the projecting set-screw, well knowing that the projecting set-screw was exposed and that the same projected unevenly beyond the surface of the revolving machinery, and that should any portion of the clothing of plaintiff come in contact with the same while he was at work upon said machine in the performance of his regular duties, the same would result in serious and permanent injuries to the plaintiff.
    Plaintiff avers that at the time of the accident he was without fault on his part in any way contributing to the'accident; that by reason of the injury sustained he was confined in a hospital for several months and confined to his house for a long period ■(•hereafter, during all of which time he suffered great and excruciating pain, both of body and mind; that he will continue to suffer for a long period of time, and that he has been rendered a helpless crinóle for the balance of his life, and judgment in the sum of $20,000 is asked.
    The answer of the company admits its corporate Existence, the employment of plaintiff and that in the performance of his duties he used a drill press, and that .while using it he received some injury, and for want of information as to the nature of the same, the allegations of the petition pertaining thereto are denied. There is then a denial of each &nd every allegation in the petition not specifically 'admitted, and the further defense of contributory Negligence. Plaintiff replied denying contributory Negligence.
    The court instructed the jury that the violation Df Section 1027, General Code, was negligence per se, the language used by the court in this connection being set out in full in the opinion.
    There was a verdict in favor of plaintiff in the sum of $5,000. A motion for a new trial was filed and overruled, judgment rendered on the verdict and error prosecuted in the court of appeals, where the judgment of the common pleas court was affirmed.
    To reverse these judgments plaintiff in error has brought this proceeding in this court.

      Me'ssrs. Howell, Roberts & Duncan, for plaintiff in error.

      Messrs. R. B. & A. G. Newcomb; Mr. G. M. Skiles and Mr. Frank M. Cobb, for defendant in error.
   Newman, J.

The question chiefly discussed by counsel in their briefs, and the only one to which our attention was directed in oral argument, is whether the court erred in instructng the jury that the violation of the statute was negligence per se. The company in its answer admitted that Poak received some injury, but for want of information denied the allegations of the amended petition pertaining to the manner in which the injury was received. There was evidence tending to show that Poak did not catch his sleeve on the set-screw, but that his glove was caught on the point of the drill. However, the court of appeals in reviewing the evidence on this proposition was clearly of the opinion that there was sufficient evidence to warrant the jury in finding that the catching of the shirt sleeve on the set-screw, as claimed by Poak, was the immediate and proximate cause of the injury, and counsel concede that they are precluded from discussing this question here, for it involves the weight of the evidence.

The set-screw which held the drill in the shank or shoulder projected unevenly beyond the surface of the revolving portion of the drill press. There was no dispute as to this fact, and besides it is conceded by counsel.

The court in its charge to the jury used this language:

“It is- admitted by the defendant that the setscrew upon this machinery did extend out in some degree beyond the surface of the revolving portion of the press drill; and I say to you, as a matter of law, that this was in violation of the statute, and that if this extended set-screw did engage the shirt of the plaintiff, as claimed by him, and that this engaging of the shirt sleeve by the set-screw was the proximate cause of the injury complained of, then the having and maintaining of such set-screw would constitute negligence on the part of the defendant ; but I say to you further in that connection, that though the set-screw did extend out, and though the defendant was negligent in that respect, yet that would be of no importance in this case unless the set-screw engaged the shirt sleeve of the plaintiff as claimed by him, and caused the injury complained of.
“So, gentlemen of the jury, if you believe the plaintiff has maintained by a preponderance of the proof his claim that the set-screw, as the same then and there existed, did engage his shirt sleeve, and that the engaging of his shirt sleeve in the setscrew caused the injury in this case, and find also that the plaintiff was without fault on his part, then he is entitled to a recovery at your hands.”

This part of the charge is challenged by counsel for the company, the contention being that the court should have submitted to the jury whether or not the defendant exercised reasonable care in furnishing plaintiff a safe place in which to work, and should have charged that the violation of the statute might be taken into consideration in determining that question, and that such violation was some evidence of negligence but not negligence in itself. The basis of negligence in this case, it is claimed, is that the master failed to use reasonable care in furnishing the servant “a safe place or a safe instrumentality at which to work,” and liability on the master’s part could be sustained only by failure to use such reasonable care.

The provisions of the statute which apply here are as follows:

“Section 1027. The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contact with machinery therein or any part thereof as follows: * * *
“3. They shall cover, cut off or countersink keys, bolts, set-screws and all parts of wheels, shafting or other revolving machinery projecting unevenly beyond the surface of such revolving machinery.”

This is a penal statute and the person, firm or corporation failing to comply with its provisions is subject to a fine for every offense.

By the provisions of the statute a positive and absolute duty is imposed upon the owners or operators of shops and factories. They are required to cover, cut off or countersink bolts, set-screws and all parts of wheels, shafting or other revolving machinery projecting beyond the surface of such revolving machine. There was a failure on the part of the company in this'case to comply with this mandate in reference to the set-screw.

The common-law duty of the employer to exercise ordinary care to provide for the employe here a safe place in which to work is changed by this statute. Whether or not the employer was in the exercise of ordinary care in not covering, cutting off or countersinking the set-screw is not the test when negligence is charged. The legislature in positive terms has defined the duty of the employer in this respect. It is not for us to question the wisdom of such legislation, were we so disposed. The plain duty devolves upon the court to enforce the law unless it appears that the legislature has exceeded its authority and the act is clearly repugnant to the provisions of the constitution.

Negligence in a legal sense is the omission of some duty imposed by law, a failure on the part of ihe defendant to perform a legal duty that is owed to the plaintiff. Here the company, under the plain and express terms of the statute, owed to the plaintiff the duty of making a suitable provision to prevent injury to him in using the drill press, and the company in furtherance of this was required to cover, cut off or countersink the set-screw. This it did not do. Its failure to comply was therefore a violation of duty, and this was negligence. There was nothing to be submitted to the jury on this proposition. Negligence is ordinarily’ a question for the jury, and is always so when there is a reasonable doubt either as to the facts or inferences of fact to be drawn by the jury. But here there was no doubt as to the facts. The statute has been violated, and the court rightly charged as a matter of law that the company was guilty of negligence. It then remained for the jury to say whether or not the violation of this duty was the proximate cause of the injury.

In Krause v. Morgan, 53 Ohio St., 26, statutes requiring the operator of a coal mine to keep the same free from gas and have the working places examined every morning with a safety-lamp before workmen are allowed to enter, and which statutes gave a cause of action to a person injured for direct damage occasioned by any violation or wilful failure to comply with the requirements of the statutes, were before the court for consideration. The court used this language: “While the statute, as we construe it, does not make the operator of the mine absolutely liable to a party injured by an explosion of gas where the operator has not complied with the statute, such conduct is negligence per se, and the employer cannot escape liability by showing that he took other means tp protect the workmen equally efficacious. Proof of failure to obey the statute is all that is necessary to establish negligence on the part of the operator.”

In Coal Co. v. Estievenard, 53 Ohio St., 43, the action was brought under the provisions of Section 6871, Revised Statutes, which provided that the owner, agent, or operator of every coal mine should keep a supply of timber constantly on hand, and should deliver the same to the working place of the miner, and no miner should be held responsible for accidents which might occur in mines where the provisions of the section have not been complied with by the owner, agent, or operator thereof. This section further provided that it shall be the duty of the miner to securely prop the roof of any working place under his control. The court held that, under the provisions of this law, it is the duty of the owner, agent, or operator to have the timber constantly on hand, and to deliver it to the working place of the miner. And then used this language: “All he [the miner] has to prove to make his case, as to that point, is that in fact a delivery was not made. * * * And a failure' on the part of the owner, agent, or operator to so deliver timber to the working place of the miner, is negligence, and if injury is thereby proximately caused to the miner, an action will lie therefor.” And in McGarvey v. D., T. & I. Ry. Co., 83 Ohio St., 273, an act to promote the safety of the employes and travelers upon railroads, passed by the general assembly March 19, 1906, was before the court for construction. The court held that the statute imposed a positive and absolute duty on the railroad company.

No reference is made to these cases in the brief of counsel for plaintiff in error, but in oral argument they would distinguish them from the case here, and they insisted that they are not authority for holding that the violation of the provisions of Section 1027 is negligence as a matter of law. Counsel suggested that the statutes construed in those cases provide for an action for damages in the event of a violation, and that in one of them at least the defenses of assumption of risk and contributory negligence are not available. The absence of such provisions is immaterial, as is pointed out in the Narramore case, to which we shall refer presently. It is sufficient to say that the scope and effect of statutes imposing an absolute duty are ably discussed in these three Ohio cases, and the consistent holdings of the court in reference thereto bear directly upon the question presented here and sustain our position.

The case of Krause v. Morgan, supra, is referred to by Judge Taft in his opinion in L. E. & W. Ry. Co. v. Craig, 73 Fed. Rep., 642. Our statute requiring the blocking of frogs, for the safety of the employes of railroads, was under consideration by the court, and this language is used by this judge: “We have already held, in Railroad Co. v. Van Horne, 16 C. C. A., 182, 69 Fed. Rep., 139, that the effect of this statute is to make a failure by a railroad company to comply with it negligence, as a matter of law. This is the ruling of the supreme court of Ohio in construing an analogous statute enacted to compel mine owners to adopt safety appliances for their employes. Krause v. Morgan (Ohio Sup.), 40 N. E., 886.”

And the same judge, in the well-known case of Narramore v. C., C. & St. L. Ry. Co., 96 Fed. Rep., 298, said: “We have already had occasion to consider in a more or less direct case the effect of the statute. Railway Co. v. Van Horne, 16 C. C. A., 182, 69 Fed., 139; Railway Co. v. Craig, 16 C. C. A., 631, 73 Fed., 642. In these cases we held that the failure on the part of a railway company to comply with the statute was negligence per se. A further consideration of the statute confirms our view. The intention of the legislature of Ohio was to protect the employes of railways from injury from a very frequent source of danger by compelling the railway companies to adopt a well-known safety device. It was passed in pursuance of the police power of the state, and it expressly provided, as one mode of enforcing it, for a criminal prosecution of the delinquent companies. The expression of one mode of enforcing it did not exclude the operation of another, and in many respects more efficacious, means of compelling compliance with its terms, to-wit, the right of civil action against a delinquent railroad company by one of the class sought to be protected by the statute for injury caused by a failure to comply with its requirements.”

And again in Cooper v. B. & O. Rd. Co., 159 Fed. Rep., 82, the court of appeals of the sixth circuit had before it for construction the act of April 25, 1898 (93 O. L., 342), requiring railroad companies, to block all angles in frogs, switches, and crossings in all yards where trains are made up, etc., and quote with approval the language used by Judge Taft in C., H. & D. Rd. Co. v. Van Horne, 69 Fed. Rep., 139: “There was no issue before the jury as to whether the failure to insert a block was negligence on the part of the railroad company. It was negligence, as a matter of law, and the court prorerly charged the jury that, if the block was not there, and the absence of it caused the accident, the defendant was liable.”

The principle announced in these cases is approved and adhered to by the supreme court of the United States in several cases which were cited by counsel for defendant in error. In the case of St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S., 281, it is held that the safety-appliance act of March 2, 1893, supplants the common-law rule of reasonable care on the part of the employer as to providing the appliances defined and specified therein, and imposes upon interstate carriers an absolute duty, and the common-law rule of reasonable care is not a defense where in point of fact the cars used were not equipped with appliances complying with the standard established by the act. In that case, Mr. Justice Moody goes into the question fully and ably and discusses the question as to the right of the legislature to enact laws similar to the one under consideration here. His language is quoted at length and with approval by Mr. Justice, Harlan in the case of C., B. & Q. Ry. Co. v. United States, 220 U. S., 559.

Cases decided by the courts of last resort in a .dumber of states are cited by counsel, in which cases the courts have placed upon statutes similar to the one in the case at bar the same construction we are giving it here.

Meek v. Pennsylvania Co., 38 Ohio St., 632, is cited m support of the contention of plaintiff in error that it was erroneous and prejudicial for the court to have charged the jury that the violation of Section 1027 was negligence in itself. The syllabus of that case must be read in connection with the facts there before the court. Plaintiff was struck by a car moving at a rate of speed exceeding the rate prescribed by a certain ordinance. He did not predicate his right of recovery upon the violation of the ordinance. No reference is made to the ordinance in the petition, the charge of negligence being that the company carelessly, wrongfully and with gross negligence ran and moved its cars. The trial court rejected the ordinance when tendered in evidence, but this court held that it was admissible, and that proof that the company was moving its cars in violation of the city ordinance at the time the injury was inflicted, while not sufficient per se to create a liability, is yet competent to go to the jury as tending to show negligence.

It cannot be claimed that in the enactment of this ordinance the purpose of the municipality was to supplant the common-law duty of railroads in respect to the movement of their cars. Notwithstanding the existence of this ordinance, the question for determination after all was whether the railroad was in the exercise of ordinary care when plaintiff received the injury. A full compliance with its provisions would not have relieved the company if the jury were of the opinion that the rate of speed prescribed was excessive and dangerous to human life. This court very naturally held that the violátion of the ordinance was not conclusive proof of the company’s liability. This case, therefore, is not decisive of the question raised here, nor are Davis v. Guarniera 45 Ohio St., 470, and Jacobs v. The Fuller & Hutsinpiller Co., 67 Ohio St., 70. In the opinions of the court in these cases, the holding in the Meek case seems to meet with approval, but the law announced in the cases does not in any way sustain the claim of counsel.

The plaintiff in the case at bar predicated his right of recovery upon the violation of the statute, which made it an absolute duty on the part of the employer to adopt certain measures to protect its employes. It was not for the jury to say whether a failure to comply was negligence. To use the language of the court of appeals: “As no jury is allowed to. say that which is not the law shall be the law, so they should not be’permitted to say that which is the law, is not the law.” The violation of this statute in this case was negligence as a matter of law. If this negligence was the proximate cause of the injury, the company was liable. The court correctly charged the jury in this respect.

In the brief of counsel other exceptions to the record in the common pleas court are pointed out, but none of them was pressed in oral argument, counsel relying upon the one proposition which we have been considering. We have, however, examined the record and are clearly of the opinion that they should be disregarded and that the court of appeals did not err in overruling them.

There being no error in the judgment of the court of appeals the same is affirmed.

Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donai-iue, Wanamaker and Wilkin, JJ., concur.


source: Caselaw Access Project

author: Donahue, J.

license: Public Domain

text:
    Jordan v. The Breece Manufacturing Company.

      Real property — Roadzvay—Presumption as to use — Necessity of roadzvay determined, hozv — Rights of owners and grantees.

    1. Where the owner of several tracts of land uses a part or all of one tract as. a roadway for his own convenience while he is the owner and in occupation of all the several tracts, no presumption arises therefrom that the tract so used is devoted to a way appurtenant to one of these tracts purchased by him at a different time and from a different proprietor.
    2. The question of whether a roadway is reasonably necessary to the enjoyment of premises conveyed is one that must be determined from the conditions existing at the time of the conveyances.
    3. Where a portion of a farm is purchased by an adjoining proprietor and while he remains the owner of the tract so purchased he uses a roadway over and across the adjoining premises owned by him for his own convenience while in the use and occupation of all his land, including this parcel, and later this parcel is conveyed to the owner of the farm from whom it was originally purchased and who thereupon reestablishes the original lines of his farm and constructs a partition fence thereon, and being still the owner of the entire farm lying and abutting on a public highway, a roadway over and across the grantor’s land is not reasonably necessary to the enjoyment by the grantee of this parcel of his own farm reconveyed to him by the grantee of the original purchaser.
    (No. 13498
    — Decided February 3, 1914.)
    Error to the Circuit Court of Scioto county.
    On the 24th day of July, 1889, the board of trade of the city of Portsmouth, Ohio, purchased from the heirs of John Rhodes a part of what was known in that vicinity as the “Rhodes farm,” which farm lies directly east and contiguous to a farm then owned by John G. Peebles. The amount of land purchased consisted of 6.24 acres of land 90 feet south of the C, W. & B. tracks (which run through both of the above-named farms) and north of the Ohio river, and bounded on the west by the Peebles farm, also a strip of ground 30 feet wide on the west side of the Rhodes farm, bounded on the west by the Peebles farm, and extending 1208 feet north to the Haverhill free turnpike, commonly known as the “Gallia pike,” and caused said land to be conveyed to A. T. Holcomb, trustee, for the purpose of being conveyed by him to The Little Kanawha Lumber Company when it should comply with a certain contract entered into by it with the board of trade of Portsmouth to erect, complete and start in operation a sawmill upon this 6.24-acre , tract. On the 17th day of January, 1891, Holcomb, as trustee, did convey this land consisting of 6.24 acres and the 30-foot strip extending to the Gallia pike, all of which had theretofore been a part of the Rhodes farm.
    On the 24th day of July, 1889, the same day of the conveyance of this land to Plolcomb, trustee, the heirs of John Rhodes, deceased, conveyed to The Little Kanawha Lumber Company a certain other tract of land which was also a part and parcel of the Rhodes farm. This consisted of about 4.72 acres lying north of the 6.24-acre parcel of ground above referred to, and being a strip of ground immediately north and adjoining the right of way of the C., W. & B. Ry., 200 feet in width, entirely across the Rhodes farm from east to west, excepting therefrom a strip of ground 30 feet wide from east to west and 2Q feet long from north to south on the west end of this tract adjoining the Peebles land that had theretofore been conveyed by the Rhodes heirs to Holcomb, trustee.
    On the 3rd day of August, 1889, The Little Kanawha Lumber Company purchased directly from John G. Peebles a part of the Peebles farm containing about 3 acres 73 feet south of the C., W. & B. Ry., contiguous to and bounded on the east by the 6.24-acre tract conveyed to it by Holcomb, trustee. It was provided in this deed that if the grantee, The Little Kanawha Lumber Company, failed to erect and complete a sawmill within a period of two years from the date of the deed, either upon the 6.24 acres purchased from the Rhodes heirs or upon these 3 acres purchased from Peebles, it would re-convey to Peebles this 3 acres upon condition that he return the $500 purchase money without interest.
    On the first day of July, 1891, John G. Peebles executed a lease for ten years to The Little Kanawha Lumber Company of a strip of land 330 feet in width, bounded on the east by the Rhodes farm, on the north by the Haverhill Free Turnpike, on the south by the line of the B. & O. S. W. Rd., the west line of said 10 acres being 330 feet west of the partition line between the Rhodes and Peebles farms. This lease also provided for a 16-foot alley on the west side of the 330-foot strip leased, and further provided for the erection and maintenance by the lessee of a board fence 8 feet high along the west side of the alley. This lease also provided that The Little Kanawha Lumber Company should grant to Peebles “the free right of egress and ingress over and along the streets on the east side of said leased premises, over the Rhodes lands to and from and switches on said leased premises and the use of the same for the purpose of loading or unloading cars at such times as would not interfere with the use thereof” by The Little Kanawha Lumber Company.
    The Little Kanawha Lumber Company being the owner of that part of the Rhodes farm conveyed to it by Holcomb, trustee, and of that portion of the same farm purchased directly from the heirs of Rhodes, and the owner of the 3-acre parcel of the Peebles farm purchased by it from Peebles and contiguous to its 6.24 acres of the Rhodes farm owned by it, and being the lessee of these 10 acres of the Peebles farm, with the right of a 16-foot alley the entire length of said leased premises from the railroad tracks to the pike, continued in the use and occupation of this property until December 17, 1897, when its business and all of its real estate holdings were sold by a receiver to Newman & Spanner, of Ironton, Ohio, who were also engaged in the sawmill business.
    The following plat shows these several parcels of land owned by and leased to The Little Kanawha Lumber Company:

      The parcel marked IR and 2R is the land purchased by the board of trade of Portsmouth, Ohio, from Rhodes, and conveyed to The Little Kanawha Lumber Company by Holcomb, trustee; 3R is the 4.72 acres of land purchased by The Little Kanawha Lumber Company directly from the Rhodes heirs; 4P is the 3-acre tract purchased directly from John G. Peebles by The Little Kanawha Lumber Company; 5P is the tract of land leased by John G. Peebles to The Little Kanawha Lumber Company ; 6P, consisting of 4P and 7P combined, is the tract of land conveyed by devisees of John G. Peebles to The Portsmouth Rim & Spoke Company by deed hereinafter mentioned (this includes the tract marked 4P, consisting of 3 acres, and the tract marked 7P, consisting of 1 acre) ; 8P is the 60-foot strip off of the north portion of 6P conveyed by deed hereinafter mentioned by The Portsmouth Rim & Spoke Company to The Norfolk & Western Railway Company. .
    On April 23, 1898, John G. Peebles, by a written endorsement upon the lease theretofore executed by him to The Little Kanawha Lumber Company, agreed to this transfer to Newman & Spanner. On the 4th day of February, 1898, all of this real estate was conveyed to The Yellow Poplar Lumber Comp'any. This company wrecked the sawmill, sold and moved the buildings and machinery from the premises, and discontinued the operation of the sawmill and the manufacturing- business theretofore conducted on these premises. Shortly prior to the expiration of the lease for the 10-acre tract, Peebles purchased from The Yellow Poplar Lumber Company the 3-acre tract he had originally sold to The Little Kanawha Lumber Company, paying therefor the sum of $500, being the same price without interest paid him by the original grantees. There was then upon this property a brick building that had been partly destroyed by fire. At the same time The Yellow Poplar Lumber Company surrendered to Peebles the 10 acres held by it under the original lease from Peebles to The Little Kanawha Lumber Company. This land then had upon it a board fence constructed by the original lessee, which, by the terms of the agreement to surrender, became the property of Peebles, he agreeing in consideration of such surrender to release the lessee from the further payments of rent and to build at his own expense a partition fence between his farm and the Rhodes farm. After the reconveyance of this 3 acres and the surrender of the lease, the lines of the Peebles farm were the same as they had been prior to any of these transfers.
    Neither Peebles nor his devisees used this land for sawmill purposes or manufacturing purposes of any kind. On May 14, 1902, the devisees of John G. Peebles conveyed to The Portsmouth Rim & Spoke Company, now The Breece Manufacturing Company, the defendant in error herein. 4 acres on the east side of the Peebles farm and south of the railroad (6P). Of this tract of 4 acres the 3 acres originally deeded by Peebles to The Little Kanawha Lumber Company was a part. On November 21, 1903, The Portsmouth Rim & Spoke Company, the predecessors in title of the defendant in error, conveyed to The Norfolk & Western Railway Company a strip of land 60 feet wide off of the north end of this 4 acres. This strip is designated on the plat as 8P and adjoins the railway’s right of way. On the 7th day of October, 1909, The Yellow Poplar Lumber Company conveyed to the plaintiff in error, Allen Jordan, the 6.24 acres (1R), the 30-foot strip on the west side of the Rhodes farm extending to the Gallia pike (2R), and the 4.72 acres, part of the Rhodes farm north of the railway track (3R). On February 17, 1891, that part of the Rhodes farm lying north of the 4.72-acre tract (3R) and east of the 30-foot strip (2R) was platted in lots, streets and alleys, and designated as New Boston. This plat purported to show a 60-foot street extending from Gallia pike south along the line between the Rhodes and Peebles farms and the 4.72-acre tract (3R). This 60-foot strip, however, included the 30-foot strip of land conveyed in fee simple by the Rhodes heirs to Holcomb, trustee, and of which the plaintiff in error is now the owner through mesne conveyance.
    After the plaintiff in error acquired title to this strip of land he instituted an action against the village of New Boston to quiet his title to this 30-foot strip, and a decree was entered against the village of New Boston as prayed for in the petition, quieting the title of Jordan and enjoining the village from the use of this 30-foot strip of land as a street in said village. During the time The Little Kanawha Lumber Company was in possession of these premises it used the 30-foot strip of land conveyed to it by Holcomb, trustee (2R), as a roadway to and from these premises, including not only the lands purchased from Rhodes but the 3-acre tract purchased from Peebles, and after the sale of this 3-acre tract to Peebles it continued to use the same roadway to and from the Rhodes lands owned by it until it conveyed the same to the plaintiff in error.
    It also appears that since the time of the conveyance of The Yellow Poplar Lumber Company of this 3-acre tract of land to Peebles, the owners of that land have been using the same 30-foot strip on the Rhodes farm as a roadway to and from these premises, and the original action was brought in the common pleas court to enjoin the plaintiff in error from obstructing this strip of land by fence or otherwise and from interfering with the plaintiff in its use thereof.

      Mr. T. C. Anderson; Mr. Joseph P. Coates and Mr. Joseph W. O’Hara, for plaintiff in error.

      Messrs. Holcomb & Millar, for defendant in .error.
   Donahue, J.

There is no conflict of evidence in this record upon any point material to the disposition of this case. The only question presented by the record is whether at the time Peebles repurchased this tract of land from The Yellow Poplar Lumber Company this roadway that was then being used by The Yellow Poplar Lumber Company over its own property was a way appurtenant to the 3-acre tract. This claim cannot be sustained upon any theory of right reasoning. This land was owned by The Yellow Poplar Lumber Company and its predecessors in title in fee simple. That it devoted this tract to road purposes for its own convenience in no way affects the question. This 30-foot strip was purchased in fee simple by the board of trade of Portsmouth, Ohio, yet evidently it was purchased for the purpose of a roadway from the pike to the 6.24-acre tract purchased by it at the same time from the Rhodes heirs. It was in fact a part and parcel of this same purchase, and so far as source of title is concerne4 had nothing whatever to do with the 3 acres purchased from Peebles. That transaction was separate and apart from the purchase of the Rhodes land by the board of trade. This 30-foot strip was not purchased for the purpose of the Peebles 3-acre tract as a way appurtenant to it. The situation is not different than it would be had these 3 acres of the Peebles tract been purchased by a person or corporation other than the owner of the Rhodes tracts. In such case the only way this 30-foot strip off of the Rhodes farm could become a way appurtenant to the Peebles tract would be by purchase or prescription. The use of this strip of land as a roadway by The Little Kanawha Lumber Company, which was then the owner of all these tracts, for its own convenience, could not create a title by prescription or start the running of the statute cf limitations. It had a right as the owner of this land to travel over any part of it in any direction, and that it chose to locate its roadway over this strip of land was a matter of no concern whatever to strangers to the title. The time that this strip was used as a roadway by the owner of all the property can not be included in the prescriptive period with the time it was used as a roadway by Peebles and his devisees and their grantees after The Yellow Poplar Lumber Company had conveyed this 3-acre tract to Peebles, even though it should be held that the later use of this roadway by defendant in error and its predecessor in title in common with the owner of the other tracts was an adverse user.

When this 3-acre tract of land was reconveyed to Peebles by The Yellow Poplar Lumber Company Peebles must have known the history, of this entire transaction. He knew when he deeded it to The Little Kanawha Lumber Company that there was then no way appurtenant to it. When he accepted the surrender of this lease and the reconveyance of this land his farm lines were just the same as before he had sold or leased any part of his farm to The Little Kanawha Lumber Company. He could then travel over and across his own land to the Gallia pike, and that being the fact he could not claim a way of necessity over the adjoining land of his grantor. The deed from The Yellow Poplar Lumber Company to Peebles of this 3-acre tract did not purport to grant any rights or easements in this particular 30-foot strip. The grant in that deed is as follows: “All the estate, title and interest of said grantors, either in law or in equity of, in and to said premises, together with all the privileges and appurtenances to the same belonging.”

It is clear that unless this was at that time a way appurtenant to this 3-acre parcel of land, this deed did not convey to Peebles any interest or rights therein. That it was not at that time or at any other time a way appurtenant to the 3-acre tract is too clear for dispute. The use of this roadway by the owner was not different than if it had been used in connection with the leased land. The fact that it did serve the purpose of a way to this 3-acre tract, with other tracts, while all this property was owned and occupied by the same owner, does not evidence any intention on the part of the owner to devote this parcel to the use of the 3 acres as a way appurtenant thereto. When the sawmill business was discontinued upon this and the adjoining tract Peebles repurchased this land at the price that he had agreed to pay for it in the deed from himself to The Little Kanawha Lumber Company. It may be, however, that that provision of his deed to The Little Kanawha Lumber Company did not control the price that he paid for this property. It is nevertheless a significant fact. It is hardly within the range of possibility that he believed or expected that he was purchasing from The Yellow Poplar Lumber Company any more than he had granted to its predecessor in title, The Little Kanawha Lumber Company, except the structures or parts of structures still standing thereon. After the sale to Peebles of this 3-acre tract it practically lost its identity as a separate parcel and became a part of the original Peebles farm, as it was before the original conveyance. Later a deed was made by Peebles’ devisees of a 4-acre parcel of this land to The Portsmouth Rim & Spoke Company. The fact that this 4-acre tract included the 3-acre tract originally deeded by Peebles to The Little Kanawha Lumber Company has little or no significance. It might just as well have been any other 4-acre tract out of his farm. .The claim that this roadway had become appurtenant to the 3-acre tract could not by any flight of imagination develop into a claim of a way appurtenant to the whole Peebles farm. If the’ claim could be sustained that this was a way appurtenant to 4 acres of the Peebles farm, it could be shown by the same reasoning to be a way appur- ' tenant to all the farm. After these conveyances had been made to The Portsmouth Rim & Spoke Company it conveyed to The Norfolk & Western Railway Company a 60-foot strip off of the north end thereof, thereby severing the connection of the remainder of the 4 acres held by it with the 30-foot strip now claimed as a roadway. In this deed to the Norfolk & Western Railway Company no right of way is reserved over the 60-foot strip. It is true that the testimony shows that the railway company has put in a crossing running diagonally from the residue of defendant in error’s land to this 30-foot strip, but there is no claim that the defendant in error has any right to the use of this crossing except at the will of the railway company. This 30-foot strip extends only to the north side of the railway tracks and never did extend to this 3-acre tract. True, the driveway was continued beyond this 30-foot strip over and across the railway tracks and upon the lands purchased from the Rhodes heirs, for the purposes of the successive owners of all this property, up until the time of the severance of title by the reconveyance to Peebles. This litigation, however, is confined to the strip of ground 30 feet wide and extending 1208 feet south from the Gallia pike. It is this strip of land that is described in the amended petition; it is this strip of land that defendant in error claims the right to travel over, and it is this strip of land that the amended petition charges the plaintiff in error with fencing and refusing to permit plaintiff to pass over or use as a roadway. It is clear from the evidence that this strip of land, although it has been used as and for a roadway, is neither contiguous to nor appurtenant to the 3-acre tract, nor was it ever devoted to that exclusive purpose. The most that can be said about it is, that while one proprietor owned all these tracts it used this roadway for its own convenience and for its own purposes, irrespective of the different parcels of land owned by it.

It is urged upon the attention of this court that the circuit court found as a fact that this roadway was reasonably necessary to the enjoyment of the premises owned by defendant in error and added materially to the value of said premises. That is undoubtedly true in so far as it applies to the conditions existing at the time of the commencement of this litigation, but it was not the fact nor is there any evidence tending to prove that that was the condition at the time the property was reconveyed to Peebles. - On the contrary, it is admitted that Peebles then owned the entire farm reaching to the Gallia pike, and that he could travel over his own farm to the highway. At that time there was a 16-foot alley on the west side of the land Peebles had leased to The Little Kanawha Lumber Company which extended from the railway tracks directly north of this tract to the Gallia pike, so that Peebles could not then claim that a way over other lands of his grantor was reasonably necessary to the enjoyment of the premises conveyed to him, and the rights of this defendant in error must be measured by the same rule that would apply to Peebles at that time, and not to the conditions as they existed at the time of the commencement of this action.

Our attention is also called to the statement that the circuit court found as a fact that this roadway, was appurtenant to said premises. There is no such finding by the circuit court. On the contrary, the language is as follows: “And was used as an appurtenance to said premises, since the date of the purchase of the same by the plaintiff.” Defendant in error relies on the claim that this roadway was appurtenant to the premises at the time The Yellow Poplar Lumber Company conveyed to Peebles. Unless it was then a way appurtenant thereto Peebles acquiréd by his deed no right or interest therein, and of course could pass none to his devisees, nor could they in turn convey any interest therein to their grantees. If the circuit court had found as a fact that this was a way appurtenant to these premises at the time of the repurchase by Peebles from The Yellow Poplar Lumber Company, such finding would not foreclose further inquiry by this court. That is a question of law, especially where there is no conflict of evidence, and even if there had been a conflict of evidence, then, resolving every disputed question of fact in favor of the plaintiff below, the question of law would still be presented whether there is any evidence in support of a finding that the way was a way appurtenant to the premises at the time of the conveyance to Peebles. Clearly. There is no such evidence.

For these reasons the judgment of the circuit court will be reversed and judgment for plaintiff in error upon the facts found by the circuit court.

Judgment reversed. Judgment for plaintiff in error.

Nici-iols, C. J., Shauck, Johnson, Wanamaker and Wilkin, concur.

Newman, J., not participating.


author: Donahue, J. Shauck, J.,

text:
    Link v. Karb, Mayor.

      Constitutional law — Amendments effective January I, 1913 — Do not affect city ordinance, when — Bond issues — Taxing authorities must provide for interest and retirement — Section 11, Article XII, Constitution — Such levy must be provided, how —And be determined, how — Blections—Jurisdiction of contested elections — Section 21, Article II, and Section 1, Article IV, Constitution — Court will not enjoin issuance of municipal bonds — Voted for at alleged irregular election, when — Petition presents equitable or contested election question, when.

    1. The amendments to the constitution of this state, taking effect January 1, 1913, do not affect the validity of a city ordinance authorizing the issuing of city bonds, passed June 17, 1912.
    2. Section 11 of Article XII of the Constitution of Ohio requires the taxing authority of any political subdivision of the state proposing to issue bonds to provide at the time the issue of bonds is authorized, for levying and collecting annually by taxation an amount sufficient to pay the interest on the bonds proposed to be issued and to provide for their final redemption at maturity. This provision made at the time the issue of bonds is authorized is mandatory on all subsequent taxing officials of that political subdivision during the term of the bonds.
    3. This provision of the constitution does not require that at the time the issue of bonds is authorized there shall then be levied any specified amount or any specific rate, but it does require that provision shall then be made for an annual levy during the term of the bonds in an amount sufficient to pay the interest on the bonds proposed to be issued and to provide for their final -redemption at maturity, which levy must be made annually in pursuance of the provisions of the original ordinance or resolution requiring the same. The amount necessary to be levied for the purposes specified is to be determined by the taxing officials at the time the levy is made.
    4. Elections belong to the political branch of the government. The authority conferred by the general assembly of Ohio in pursuance to Section 21 of Article II of the Constitution to try contested elections is not judicial power within the meaning of Section 1 of Article IV of the Constitution which requires the judicial power of the state to be vested in. the courts.
    5. A petition averring irregularities and illegalities in the conduct of an election, at which a proposition to issue bonds is submitted to the electors of a city, presents no case authorizing a court of equity to interfere by injunction to prevent the issue of such bonds on the theory that the contest of the election is merely incident to the suit.

      6. Such a petition presents no question of equitable jurisdiction whatever. The issue so tendered is no more or less than a contest of election, and upon the determination of this contest of election depends the right of the petitioner to relief. The fact that the prayer is for equitable relief does not change the nature of the issue tendered.
    (No. 14419
    — Decided February 3, 1914.)
    Error to the Court of Appeals of Franklin county.
    On the 3rd day of August, 1912, Charles I. Link filed a petition in the court of common pleas of Franklin county, Ohio, making the mayor, city auditor, members of the finance committee of the city council, and trustees of the sinking fund of the city of Columbus, defendants, asking a perpetual injunction against these city officers, restraining them and each of them from selling or offering to sell bonds in the sum of $700,000 for the purpose of raising funds to pay the city’s portion of cost of eliminating certain grade crossings. On the 12th day of December, 1912, the plaintiff filed an amended petition. To this amended petition the defendants filed a general demurrer. On the 26th day of February, 1913, the plaintiff filed-a supplemental petition, and to this supplemental petition the defendants also filed a general demurrer.
    ■ The amended petition avers that the plaintiff is a citizen of Franklin county and a taxpayer of the city of Columbus, Ohio; that he requested Honorable Stuart R. Bolin, city solicitor, to bring this action, but that he failed, neglected and refused to do so, and that plaintiff brings this action as a taxpayer on behalf of the city of Columbus. The petition further avers that on the 21st day of December, 1911, the city council duly adopted and passed a resolution declaring the necessity of issuing bonds to the amount of $700,000 for the purpose of raising funds to pay the city’s portion of the cost of eliminating certain grade crossings, and further providing that the question of issuing bonds in this amount for this purpose should be submitted to the vote of the qualified electors of the city at a special election on Tuesday, the 21st day of May, 1912; that in pursuance of said resolution the the mayor of Columbus gave public notice and proclamation, made and published according to law, of the time and place of holding the election, in which proclamation and notice it was stated that the polls should be opened at 5:30 o’clock a. M. and remain open until 6 o’clock p. M., central standard time; that the clerk of the city council, in pursuance of the resolution, duly certified a copy thereof, as required by law, to the board of deputy state supervisors and inspectors of elections of Franklin county, and thereupon such election was had, on the 21st day of May, 1912, but that the judges and clerks of said election closed the polls at 5:30 o’clock p. m., central standard time, instead of 6 o’clock p. m., central standard time, as provided in the mayor’s proclamation. It is further averred that by reason of closing the polls at 5:30 o’clock p. m. instead of 6 o’clock p. m., many of the qualified electors in each of the two hundred and six election precincts of the city were prevented from voting at said election; that at said election 14,198 votes were cast for the issuance of said bonds and 6,105 cast against the issuing of said bonds. The plaintiff also avers that persons not having the qualifications of electors of said city were permitted to vote upon this question, and that their votes were received, deposited in the ballot box and thereafter convassed and counted; that plaintiff is unable to determine the exact number of such persons without proper qualifications, but he says that there is a large number of such persons that so voted, and that without such illegal votes the proposition would not and could not have received the necessary two-thirds of the total vote cast. Plaintiff also avers that he does not know and has no means of ascertaining with definiteness and precision the number of duly registered and qualified electors of the city of Columbus who desired to vote against this proposition to issue bonds and who were prevented from so doing by reason of closing the polls at 5:30 o’clock p. m., but he avers that the number of voters who desired to vote against said proposition and who were prevented from voting by reason of the premature closing of the polls was more than enough to prevent the carrying and adoption of said bond issue. Plaintiff avers that after said vote was canvassed and the result certified, the city council, on the 17th day of June, 1912, adopted an ordinance authorizing the issue of these bonds in the sum of $700,000 for the purposes named in the resolution, and that the defendants, above named, officers of the said city, are now proceeding to advertise and sell said bonds, and will sell the same unless prevented by the order of the court, and prays a perpetual injunction restraining the issue of said bonds.
    Plaintiff for his supplemental petition avers the adoption of an amendment to the constitution of Ohio, taking effect January 1, 1913, and known as Section 11, Article XII. This section is copied in full in the supplemental petition, and the further averment is made that the bonds have not been issued and that the council of the city has not made provision or passed any ordinance or resolution for levying and collecting annually by taxation an amount sufficient to pay the interest on said bonds and provide a sinking fund for their final redemption at maturity or any portion thereof.
    The common pleas court sustained the demurrers to the amended and supplemental petitions, and the plaintiff not desiring to plead further his petition and supplemental petition were dismissed at his cost. The court of appeals of Franklin county affirmed this judgment of the common pleas court, and proceedings in error are now prosecuted in this court to reverse the judgment of both the lower courts.

      Mr. George B. Okey, for plaintiff in error.

      Mr. Stuart R.'Bolin, city solicitor; Mr. George D. Jones and Mr. J. A. Miles, for defendant in error.
   Donahue, J.

The question raised by- the demurrer to the supplemental petition involves the effect of Section 11, Article XII of the Constitution, adopted on the 3d day of September, 1912, and which came into operation and effect January 1, 1913, upon the right of the city to issue these bonds in accordance with the provisions of ordinance No. 26,594, passed June 17, 1912, and that question will be considered first.

The resolution providing for submitting the question of issuing and selling these bonds, for the purpose named and in the amount named, to the qualified electors of the city of Columbus, was adopted by the city council of the city of Columbus on the 21st day of December, 1911.

On the 21st day of May, 1912, this question was submitted to the electors of the city, and there were cast at this election on the proposition in favor of issuing these bonds 14,193 votes and against the proposition 6,105 votes.

On the. 17th day of June, 1912, the city council of the city of Columbus, in accordance with the provisions of the original resolution and the vote of the electors on the proposition of issuing bonds, passed ordinance No. 26,594, authorizing an issue of bonds in the sum of $700,000 for the purpose of. raising funds to pay the city’s portion of the cost of eliminating certain grade crossings named in the ordinance and resolution, in the denomination of $1,000 each and numbered from one to seven hundred, inclusive, beariñg interest at the rate , of 4 per cent, .per annum, payable semi-annually on the first days of March and September of each year, and directed the committee of finance of council to prepare, execute and sell these bonds and deposit the moneys arising therefrom in a fund to be known as “grade crossing elimination fund No. 3,” authorizing- and directing the director of public service to enter into any necessary contracts to carry out the purpose of the ordinance, and to issue his requisition upon the auditor against the fund so created to pay the consideration for the same.

On the. 3d day of August, 1912, the original petition of plaintiff was filed. Section 11 of Article XII of the Constitution went into effect on the 1st day of January, 1913. That section reads as follows: “No bonded indebtedness of the state, or any political subdivisions' thereof, shall be incurred or renewed, unless, in the legislation under which such indebtedness is incurred or renewed, provision is made for the levying and collecting annually by taxation of an amount sufficient to pay the interest on said bonds, and to provide a sinking .fund for their final redemption at maturity.”

These bonds had not in fact been issued on the first day of January, 1913, and therefore, under the provisions of Section 3950, General Code, no indebtedness was yet created nor could be created until the delivery of the bonds under the contract of sale. This constitutional provision, however ■ is not directed to the issue of the bonds, but is directed to the legislation under which bonded indebtedness is incurred or renewed. If this legislation refers to the act of the general assembly of Ohio, then there was at that time and long prior thereto ample provisions for the annual levy and collection of a tax to pay the interest and provide a fund for final redemption. The following statutes would seem to cover this subject:

“Section 3953. For the payment of all bonds herein authorized, unless the interest thereon and redemption thereof is otherwise provided for, council shall levy each year during the periods the bonds have to run, a tax in addition to all levies authorized by law, sufficient to pay the interest thereon as it matures, and provide a sinking fund for their redemption at maturity.”
“Section 4506. Municipal corporations having outstanding bonds or funded debts shall, through their councils, and in addition to all other taxes authorized by law, levy and collect annually a tax upon all the real and personal property in the corporation sufficient to pay the interest and provide a sinking fund for the extinguishment of all bonds and funded debts and for the payment of all judgments final except in condemnation of property cases, and the taxes so raised shall be used for no other purpose whatever.”
“Section 4513. On or before the first Monday in May of each year, the trustees of the sinking fund shall certify to council the rate of tax necessary to provide a sinking fund for the future payment of bonds issued by the corporation for the payment of final judgments, except in condemnation' of property cases, for the payment of interest on'bonded indebtedness, and the rents due on perpetual leaseholds of the corporation not payable from a special fund, and the expenses incident to the management of the sinking fund. The council shall place the several amounts so certified in the tax ordinance before and in preference to any other item and for the full amount certified. Such taxes shall be in addition to all other taxes authorized by law.”
“Section 5649-1. In any taxing district, the taxing authority shall levy a tax sufficient to provide for sinking fund and interest purposes.”

The schedule to the amendments to the constitution provides that all laws in force at the time the amendment shall take effect, not inconsistent therewith, shall continue in force until amended or repealed. This court has heretofore held that this would be true even in the absence of such a provision. Cass v. Dillon, 2 Ohio St., 607.

These sections of the General Code are not only not in conflict with this amendment to the constitution but in direct accord therewith, so that if the word “legislation” as used in this amendment refers to an act of the general assembly of Ohio, such legislation was then in full force and effect. On the other hand, if the word “legislation” means the resolution declaring the necessity for issuing these bonds and the ordinance passed by the city council authorizing the issuing thereof, then and iri that event this legislation had been enacted long before this amendment became a part of the constitution of our state. The validity of this legislation must be determined by the constitution and laws of the state as they existed at the time such legislation is passed. The city council, in providing by resolution and ordinance for the issuing of bonds, is neither required nor permitted to anticipate changes in the constitutional or státutory law of this state. If the council was authorized to adopt this resolution when it did adopt it, if it was authorized to pass this ordinance when it did pass it, if this resolution and this ordinance were then and there a valid resolution and a valid ordinance, requiring only the action of ministerial and executive officers to carry their provisions into full force and effect, it would be idle to say that any subsequent change in the law could affect their validity or render invalid any proceedings of council that were valid at the time such proceedings were held. The fact that these officers have been delayed by this injunction suit in carrying into effect the command of the city council, expressed through an ordinance valid at the time it was enacted, cannot bring the transaction within the purview of this amendment to the constitution. These bonds, no matter when issued, are issued under the authority of a valid ordinance, and while it is true the debt is not incurred until after the bonds áre actually delivered, yet if the ordinance under which the debt is incurred, is the legislation to which this constitutional amendment refers as “the legislation,” then this ordinance, having been passed before the amendment was adopted, is not affected thereby. Nor will the bonds issued under the authority of this valid and subsisting ordinance be affected by any change in the constitution in reference thereto. There is much force in the contention of plaintiff in error that the amendment to the constitution having gone into effect prior to the delivery of the bonds no debt is yet incurred, and therefore this amendment must control, but when this amendment is closely examined it will be found that its provisions relate and are intended to relate to the legislation under which such indebtedness is incurred or renewed. The conclusion is irresistible that this constitutional amendment does not purport to invalidate any prior legislation under which bonded indebtedness has been incurred or authorized to be incurred, otherwise it would be retroactive in its nature. If, however, such a construction would obtain in this case, ■ still the supplemental petition would make no case for an injunction. This pleading avers the adoption of this amendment to the constitution, and copies it in full. It avers that the bonds have not yet been issued and the indebtedness not yet incurred. It also avers that the city council has not made any provision or passed any ordinance or resolution in compliance with the commands of this amendment, but there is no averment that the city council refuses to do this, or that it will issue these bonds, without making such provision, unless restrained by an order of this court, so that if this constitutional amendment applied to this case, there is'nothing to prevent the city council from complying with its terms before the bonds are issued.

The question of the proper construction of this constitutional amendment and its effect upon the issuing of bonds is presented by the demurrer and the supplemental petition, and, in view of the necessity of an early adjudication of this question, should be disposed of at this time and in this case. Section 1 of Article II of the Constitution provides that the legislative power of this state shall be vested in the general assembly, yet in Section 8 of Article XVIII of the Constitution-is found the phrase “the legislative authority of any city or village,” so that without doubt the ordinances and resolutions passed and adopted by municipal councils are legislation in the broader and more comprehensive meaning of that term, and if it were not for the fact that other political subdivisions of the state are authorized to issue bonds, there would be little difficulty in determining the meaning of this language as here used. It is unfortunate that the framers of this amendment did not use language that would make the meaning clear beyond any dispute or controversy and alike applicable to all authorities proposing to issue bonds, for while the ordinances of city councils may well come within the definition of legislation, yet county commissioners, boards of education and other local authorities are authorized to issue bonds, and these boards are not legislative bodies in any sense of the word. Nor would any resolution adopted by either of these boards ordinarily be classed as legislation, yet in the last analysis the resolution of a board of county commissioners or a board of education, authorizing the issuing of bonds or the refunding of a bonded indebtedness, is the immediate authority under which the indebtedness is incurred or renewed, whether such resolution may be called legislation or not.

In view of the fact, however, that, at the time this amendment was adopted and went into effect, there was legislation by the general assembly of Ohio in harmony with its provision, it would seem that something other and further than this legislation was intended. These boards are authorized and required by law to levy and collect annually by taxation an amount sufficient to pay the interest on bonds and to provide a fund for their final redemption, and, therefore, it would appear that this amendment to the constitution was framed and adopted for the purpose of requiring not only the legislature of the state but the taxing authority of any political subdivision of the state proposing to issue bonds to include in the law, resolution or ordinance, under which such indebtedness is incurred or renewed, the provision for levying and collecting annually by taxation an amount sufficient to pay the interest and retire the bonds, otherwise the only effect of this amendment would be to carry into the organic law of the state the existing statutory provisions. In many instances this is a wise and proper thing to do, for it at once removes an important public policy from the realms of uncertainty and no longer permits it to become the battledore and shuttlecock of legislative fancy. However that may be, this provision of the constitution must be held to serve some substantial purpose, and to the end that the will of the people may not be defeated by too narrow an interpretation of its terms, we have reached the conclusion that, in obedience to this amendment to the constitution the taxing officials of any political subdivision of the state must provide in the resolution or ordinance authorizing such issue, or in a resolution or ordinance in relation to the same subject-matter passed prior to the issuing of such bonds, for levying and collecting annually by taxation an amount sufficient to pay the interest thereon and provide a sinking fund for their final redemption at maturity. This, of course, does not require the immediate levying of a tax certain, either in amount or rate, for the provision of this amendment is that this tax shall be levied annually and collected annually, but it does mean that, at the time the issue of bonds is authorized, the taxing authorities proposing to issue such bonds shall provide that a levy shall be made each year thereafter during the term of the bonds in an amount sufficient to pay the interest thereon and retire the bonds, and such provision, so made at the time the bonds are authorized, shall be binding and obligatory upon these taxing officers of that political subdivision and their successors in office until the purpose of such levy shall have been fully accomplished by the retirement of the bonds so issued. Such a provision fills the full purpose of this amendment to the constitution and is not subject to the objection that it is impossible at the time of issue to determine either the amount that must be raised for that purpose or the rate that must be levied to raise such an amount. That amount may be determined from year to year, and levied annually, for that is the command of the amendment itself; but having declared at the time of the issue of such bonds that a levy shall be made in an amount sufficient, there then remains for the taxing officials the mere matter of calculation as to the amount. The levy must be made at all events in pursuance to the original provisions therefor, and subsequent taxing authorities must make such annual levy, regardless of what exigencies may arise in the future.

Another very important question in this case is presented by the amended petition and demurrer thereto. There can be no doubt of plaintiff’s right to bring this suit. Under the provisions of Section 4311, General Code, the solicitor is authorized to bring an action to enjoin or restrain a misapplication of funds of the corporation, or the abuse of its corporate powers, or the execution or performance of any contract made in behalf of the corporation in contravention of the laws and ordinances governing it, or which was procured by fraud or corruption. Where the city solicitor fails, upon written request of any taxpayer of the corporation, to bring such suit, the taxpayer may institute an action in his own name, on behalf of the corporation, under the provisions of Section 4314, General Code. It was held by this court in the case of The Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St., 374, that “Where the proceedings of a municipal corporation are unauthorized and void, either for want of power or its unlawful exercise, and are designed to raise a fund by the sale of its bonds or by taxation to be applied to the object contemplated by the proceedings, a suit to enjoin them may be brought by a taxpayer, under Sections 1777, 1778, of the Revised Statutes, without waiting until the fund is raised ready for expenditure. The abuse of corporate powers, within the purview of Section 1777, includes the unlawful exercise of powers possessed by the corporation, as well as the assumption of power not conferred.” Section 1777, Revised Statutes, is now Section 4311, General Code.

Notwithstanding the right of the taxpayer to maintain this suit it by no means follows that the election at which the question of issuing the bonds was submitted, to the electors of this city can be contested in this action. Since the submission of this case counsel on request of the court have furnished additional briefs covering this question. There is no claim made in the petition that this election was unauthorized and therefore void. It is admitted that by resolution of council this proposition to issue bonds was properly submitted to the electors of this city. In the case of Gas & Water Co. v. Elyria, supra, the right to injunction was predicated upon an averment in the petition that the resolution of council declaring it to be necessary to issue and sell bonds, and providing for the submission of the question of their issue to the electors, was improperly passed, and for that reason the action of council in that behalf was invalid and the election held thereunder a nullity. In such a case, of course, the court had the right to determine whether or not an election was authorized by law. If there was no lawful authority for holding the election, then there was no lawful election, and nothing to be contested. In such a case the election officers would not have jurisdiction to ascertain and declare the result of the election, and their certificate thereof would be binding upon no one. This case, however, presents no such question. The petition does not challenge the authority to hold the election under the resolution of council, but, on the contrary, challenges the conduct of the election itself. It was held by this court in the case of Peck v. Weddell, 17 Ohio St., 271, “That allegations of fraud and illegality in conducting the election, constitute no sufficient ground for injunction. Wrongs of such a nature can be inquired into and redressed, only by means of a contest of the election.” That action was to enjoin the defendant as clerk of the common pleas court of Wood county from recording the abstract of the vote in that county upon the question of the removal of the county seat from Perrysburg to Bowling Green. In disposing of the case, Scott, J., said: “It is evident that this mode of inquiring into alleged frauds in elections, and of ascertaining the will of the majority of the electors, as expressed by the legal ballots, would be very illy adapted to accomplish the end proposed, and would be as likely to facilitate the perpetration, as the correction, of frauds against the public.”

In the case of The State, ex rel. Ingerson, v. Berry, 14 Ohio St., 315, the relator sought a peremptory writ of mandamus directed to the clerk of the court of common pleas of Wyandot county, directing him to count certain returns which were alleged to have been improperly excluded by him, and directing him to declare the relator elected to the office of sheriff. The court in its opinion, on page 323, said: “The importance, in a government like ours of preserving the purity of elections, and of ascertaining truly, and rendering effective, the will of the people as fairly expressed through the ballot-boxes, needs no comment. In the accomplishment of these purposes, the right of contesting all elections, is perhaps the most efficient agency provided by law. The duty of making such provision is solemnly enjoined upon the legislature, by the constitution of our state. * * * This controlling policy may not be nullified by the courts of this state, but should be protected and cherished with the same sedulous care that the constitution and laws evince.”

There are a few cases from other states in which it is held that a court of equity has jurisdiction in election-contest cases, even though no express jurisdiction is conferred, but these are confined almost entirely to cases where some constitutional provision is claimed to have been violated by the election under consideration, and in such cases it is held that the constitutions of these states confer jurisdiction by implication upon courts of chancery to protect and preserve the constitution of the state. It is clear, however, the constitution of Ohio not only does not confer such jurisdiction by implication but in express terms provides that the general assembly of the state shall determine before what authority and in what manner the trial of contested elections shall be conducted.

All the authorities seem to be in accord upon the proposition that elections belong to the political branch of the government and are beyond the control of the judicial power, and that courts have no inherent power to try contested elections and have never exercised such power, except where it has been conferred by express enactment or necessary implication. In the case of Moulton v. Reed, 54 Ala., 320, it was held that “Where a public officer is charged by law with the duty of ascertaining and declaring the result of an election, and issuing a certificate of election to the person elected, such certificate is conclusive evidence of the result and of the right of such person to the office; except when statutes authorize a contest, and it is commenced, or in quo warranto, or information in the nature thereof, to determine the right to the office, when the certificate is prima facie evidence, imposing the burden of proof on him who assails it.”

In the case of Dickey et al. v. Reed et al., 78 Ill., 261, it was held: “Courts of equity have no inherent power to try contested elections, and they have never exercised such power, except in cases where it has been conferred by express enactment or necessary implication therefrom.”

In the same case it was held: “A writ of injunction, issued in a matter where the court could not, under any circumstances, have power to hear, determine and decree in reference to such matter, is coram non judice, and void.”

In the case of Hamilton v. Carroll, 82 Md., 326, it was held: “A court of equity has no jurisdiction to determine an election contest of any kind.” This was an action for an injunction to restrain the issuing of bonds for the purpose of building a court house and jail at La Plata in pursuance of an election for the change of a county seat of Charles county, Maryland.

In the case of The State, ex rel. v. Dubuclet, 28 La. An., 698, it was held that the courts cannot go into the business of inquiring into the qualification of voters or the correction of poll books, and like questions, without some constitutional authority, constitutional statute or warrant giving them jurisdiction.

In the case of The State, ex rel., v. Dortsch, 41 La. An., 846, it was held that “In the absence of special statutory authorization, courts are without jurisdiction ratione materiae to entertain cases of contested elections. The foregoing rule applies as well to elections held to determine the location of a parish seat as to the election of officers. No statute invests the courts of this state with jurisdiction over contested elections to determine the parish seat.”

The same proposition .of law was announced in the cases of the Construction Co. v. Police Jury, 44 La. An., 863, and Fowler v. Gable, 3 Pa. Dist., 23. In the case of Parmeter v. Bourne, 8 Wash., 45, it was said: “The superior court has no jurisdiction of the subject-matter of an action which seeks to enjoin the removal of a county seat on the ground of fraud committed in the election therefor.”

In this state the constitution itself would seem to settle this controversy. Section 1 of Article IV of the Constitution vests the judicial power of the state in the several courts named in that section, and such other courts as from time to time may be established by law. If elections come within the term “judicial power,” then, of course, courts have jurisdiction without reference to whether there is any further provision of the constitution or statutory law of the state conferring such authority; but the constitution of our state also specifically provides in Section 21 of Article II that “The general assembly shall determine, by law, before what authority, and in what manner, the trial of contested elections shall be conducted.” This provision strongly emphasizes the fact that in this state elections do not come within the judicial power conferred by Section 1 of Article IV of the Constitution, otherwise this earlier provision of the constitution could not be operative and the general assembly of the state would be compelled to commit this question to the courts. But it has done nothing of the kind. Acting upon this provision of the constitution and recognizing that the framers of the constitution, and the people of the state when they adopted it, recognized that elections belonged to the political branch of the government, and are, therefore, not within the meaning of the phrase “judicial power,” it has provided for contests of elections in various ways and before various authorities other than the courts of the state. For instance, the contest of an election of an elector of the president of the United States shall be heard before a commission consisting of the governor and four judges of the circuit courts, to be appointed by the governor, the judgment of this commission to be final. The senate and house of representatives are authorized, respectively, to hear and determine any contest of the election of members. The contest of an election of a justice of the peace must be heard by three freeholders appointed by the judge of the probate court, and wherever the statute provides that a court shall hear and determine a contest of election procedure is provided for the conduct of such contests other than that provided for the hearing and determining of questions judicial in their nature.

The right of the general assembly to confer .authority upon these various officers, commissioners, the house of representatives and senate, has never been questioned in Ohio, except in the case of The State, ex rel., v. Harmon, 31 Ohio St., 250, in which case it was held in the first paragraph of the syllabus that “The authority conferred on the senate to try contested - elections is not judicial power within the meaning of Section 1 of Article IV of the Constitution, which requires the judiciál power of the state to be vested in the courts.”

Our attention has not been called to any other case in this state where this question has been directly made, yet there are many reported cases sustaining laws providing for the contest of an election before nonjudicial officers, and the authorities from other states are all to the same effect.

Paine on Elections, Section 793, says: “In the absence of constitutional inhibitions, the legislature has power to declare the certificate of election conclusive, in all cases. It may or may not authorize a contest. If a contest be authorized, the mode of contest and of trial will rest absolutely in the legislative discretion. , * * * The right to contest an election is not a vested right.”

If the contest of an election were' included in the term “judicial power of the state,” then all this legislation conferring authority on other than the courts to hear and determine contested elections would be in violation of Section 1, Article IV of the Constitution. If it is not judicial power, then the courts have no inherent authority to hear and determine such questions as are presented by this petition, and in the absence of any constitutional or statutory provision conferring this power, the certificate of the election officers is just as binding upon the courts as it is upon any other officer or citizen of the state. Section 12303, General Code, does confer jurisdiction on the courts in an action in quo warranto brought against a person who usurps, intrudes into, or unlawfully holds or exercises, a public office, civil or military, to inquire into the validity and legality of the election under which the defendant claims to hold his office. This proceeding in quo warranto was the only remedy in the nature of a contest of an election known to the common law, and in the absence of a statute providing before what authority and in what manner the trial of contested elections shall be conducted, this writ may be resorted to for that purpose, but it must be limited to the provisions of Section 12303, General Code, for that is now the only authority in Ohio for bringing an action in quo warranto. State, ex rel., v. Hunt, 84 Ohio St., 143.

Where, however, the legislature has provided a statutory proceeding for contesting an election that proceeding must be followed. The State, ex rel., v. Patterson, 84 Ohio St., 89-100; The State, ex rel., v. Marlow, 15 Ohio St., 114; Peck v. Weddell, 17 Ohio St., 271; The State, ex rel. Ingerson, v. Berry, 14 Ohio St., 315.

The great weight of authority in other states is to the same effect, but it is held in some states that these remedies are cumulative. This holding, however, is based upon the language of the constitutional provisions in those states. The question, nevertheless, is settled in Ohio by the cases above cited.

The constitution of our state enjoins upon the general assembly the duty of determining' by law before what authority and in what manner the trial of contested elections shall be conductéd. The presumption is that the general assembly has done its duty. Whether it has performed its duty in that behalf or not, is of no importance in this case. If it has provided means for contesting an election of this character, then the means so provided afford the only relief available. If it has failed to provide before what authority and in Avhat manner the trial of a contest of an election, such as this, shall be conducted, that failure confers no jurisdiction upon the courts, where none is conferred by the constitution or the statutes of the state, and particularly where the constitution specifically excepts contest of elections from the general grant of judicial powers. It has been suggested that a court of equity having jurisdiction of the case, this question of the contest of an election is merely incident thereto, and that, therefore, the court will dispose of all the questions presented. This petition presents no question of purely equitable cognizance. In fact, the case presented by the petition is a case of contest of an election. The only issue tendered by the petition is the irregularities and illegalities in the conduct of this election, and while the prayer is for equitable relief, the right to such relief is predicated upon the determination of the contest of the election sought to be had in this way. The fact that the prayer is for equitable relief does not change the nature of the action, and it would be altogether absurd to say that a court of equity acquires jurisdiction over a subject-matter which is not equitable in its nature on the theory that these questions are merely incident to the suit, when in fact it is the only question in controversy, and the equitable relief ■prayed for is merely incident to the determination of these questions. If the general assembly has neglected its duty in providing a means for contesting an election of this character, that neglect will not justify a court in the assumption of power that it does not possess. Two wrongs will not make a right. If it has provided for such a contest, then the method so provided is exclusive.

It has been suggested that the general assembly has provided for a contest of an election of this character. That claim is based upon the fact that Section 3945, General Code, provides that elections of this kind must be conducted in the same manner as elections of municipal officers. The statutes relating to elections of municipal officers provide how and before what authority a contested election may be had, but an inspection of Section 5169, General Code, does not seem to this court to justify the conclusion that that section authorizes the contest of an election of this character in the manner therein provided. Whether it does or not is of no importance in the disposition of this case. In either event the court has' no jurisdiction. It follows, therefore, that the judgment of the circuit court must be affirmed.

Judgment affirmed.

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

Shauck, J.,

concurs in propositions 1, 2 and 3 of the syllabus, but dissents from the other proposition therein contained and from the judgment.