author: Williams, J.

text:
    The City of Zanesville v. The Zanesville Telegraph and Telephone Company.

      Distribution of powers of state — Power conferred on court of justice — Effect of in determining its judicial character — Proceedings in a court of justice for the enforcement of a conferred right is exercise of judicial function — Status of municipal corporation as to proprietary interest in streets — Laxo as to compensation to keep streets in repair — Sections 3454, 3461-1, and 8411, Rev. Stat. — Construction of telephone lines in streets according to order of probate court — When municipal and company authorities fail to agree — Probate .court has jurisdiction of proceedings instituted under section 3461, Rev. Stat. — Validity of provision — Constitutional law.

    1. The distribution of the powers of the state, by the constitution, to the legislative, executive, and judicial departments, operates, by implication, as an inhibition against the imposition upon either, of those powers which distinctively belong to one of the other departments,
    2. The fact that a power is conferred by statute on a court of justice, to be exercised by it in the first instance in a pro- . ■ ceeding instituted therein, is, itself, of controlling importance as fixing the judicial character of the power, and is decisive in that respect unless it is reasonably certain that the power belongs exclusively to the legislative or executive department.
    3. The institution and prosecution of a proceeding in a court, comprehends the filing of a proper complaint, process for bringing in the proper parties, and a judicial inquiry according to established rules and practice.

      4. Where the law confers a right, and authorizes an application to a court of justice for the enforcement of chat right, the proceeding upon such application is the exercise of a judicial function, though the order or judgment authorized be of such a nature that it can only be performed, or its execution enforced, progressively during a future period.
    5. A municipal corporation, though holding the title to its streets, has no private proprietary interest in them which entitles it to compensation when they are subjected to an authorized additional public burden by the construction of a telephone line therein. But being charged with the duty of keeping the streets under its control in repair, it may be allowed compensation to an amount sufficient to make the repairs rendered necessary by such additional use. It is not essential that provision be made for the assessment of such compensation by a jury.
    6. Telephone companies organized under the laws of this state, have the right, by virtue of sections 3454, 3461-1, and 3471, of the Revised Statutes, to construct their lines along the ' streets and public ways of municipal corporations, in accordance- with the order of the probate court made in pursuance of section 3461, directing in what mode the lines shall ' be so constructed when the municipal authorities and the company fail to agree, or the former unreasonably delay to enter into an agreement with the company.
    7. The power to make such order, as provided in section 3461, is not inappropriately conferred on the probate court; and that court has complete jurisdiction of a proceeding instituted therein in conformity with that section. The provision is not obnoxious to the constitution of the state on the ground that the power it confers is distinctively legislative or administrative, but is constitutional and valid.
    (Decided January 22, 1901.)
    Error to the Circuit Court of Muskingum county.
    On Rehearing.
    Note: — On the first hearing the judgment of the circuit court was reversed. The report of the case on that hearing appears in 63 Ohio St., 442. On the rehearing the judgment of reversa] was set aside and judgment rendered affirming the circuit court in accordance with the following report of the case. — Reporter.
    The Zanesville Telephone and Telegraph Company is a corporation organized under the Ohio statutes, and authorized, in the construction, operation, and maintenance of its lines, to use the public roads, streets, and ways, within the state, and to appropriate such private property as may be necessary for its purposes. Desiring to construct and operate telephone lines in the city of Zanesville, the company made application to the city council in order that an agreement might be arrived at in regard to the mode of constructing its lines in the streets and alleys of the city. The application was accompanied with a proposed ordinance, the adoption of which was requested, providing that the location of the company’s poles and wires should be under the control of the council’s committee on streets and alleys, and be so placed as not to interfere with the public travel; and, it contained provisions for protecting the city against damages arising from the construction and maintenance of the telephone lines. The council declined to accept the proposed agreement, and adopted an ordinance imposing different and more onerous conditions, among others, one requiring the company’s wires to be placed under ground. The provisions of this ordinance were not satisfactory to the company. And, the negotiations having resulted in a disagreement, the company made its application, in the form of a petition, amendment thereto, and supplemental petition, to the probate court of Muskingum county, for an order, under section 3461 of the Revised Statutes, directing in what mode the company’s 'line should be constructed along the streets and public ways of the city. The city was made a party, was served with process, and filed an.answer alleging that the company “never offered nor tendered to the said city, or to the said city council, any lawful ordinance or agreement in relation to the matter set out in the petition, or offered or. attempted to enter into any lawful agreement in relation thereto:” The case was heard on the pleadings, and evidence, on the 9th day of August, 1899, and, at the conclusion of the trial, as the record shows, the court held that section 3461, under favor of which the proceeding was had, was unconstitutional, and, on that ground, dismissed the proceeding at the cost of the company. That judgment, and its affirmance by the court of common pleas, were reversed by the circuit court, and the cause remanded for further proceedings. The case is here to obtain the reversal of the circuit court.

      Charles G. Griffith, city solicitor, and Durbin <& McDermott, for plaintiff in error.

      J. W. Warrington, W. M. Ampt, and Ellis G. Kin-head, also filed briefs and argued against the constitutionality of the statute.

      8. M. Winn and A. J. Andrews, for the defendant in error.

      Foraher, Outcalt, Granger á Prior, also filed a brief, and argued in favor of the constitutionality of the statute.
    As this case was thoroughly briefed when first reported, Zanesville v. Tel. & Tel. Co., 63 Ohio St., 442, it is thought unnecessary to repeat briefs of counsel here, except to give the additional cases cited in. those of Warrington, Ampt & Kinkead, and of Foraker, Outcalt, Granger & Prior, on this the rehearing of the case.

      From the brief filed on the rehearing by Warring-ton, Ampt and Kinkead, we insert the following:
    The earliest discussion of the distribution of powers in our courts was in Hayburn’s case, 2 Dall., 409.
    The Ferreira case, cited in the original brief and in the opinion of this court, was followed by the Supreme Court of the United States in the case of In re Sanborn, 148 U. S.,224, where that court held that no appeal will go to the Supreme Court from the findings and decisions of the court of claims, such findings being non-judicial in their nature.
    Upon the authority of the same case was decided Ex parte Riebeling, 70 Fed. Rep., 310, at pp. 314-15, where a statute was held unconstitutional which required a court to certify the value of informers’ services in certain smuggling cases. Other cases to the same effect are: Merrill v. Sherbourne, 1 N. H., 203, (cited approvingly in State v. Hawkins, 44 Ohio St., 109); Ex parte Schrader, 33 Cal., 279; O’Brien v. Montgomery, 58 Mich., 364; Shumway v. Bennett, 29 Mich., 451; Denny v. Matoon, 2 Allen, 361; State v. Noble, 118 Ind., 352; Munday v. Rahway, 43 N. J. L., 338; Auditor v. A. T. & S. F. Ry. Co., 6 Kas., 508; in this case the court held unconstitutional a statute delegating to a court the power of assessing property.
    The cases cited in Western Union Telegraph Go. v. Myatt, are likewise all pertinent to this issue and sustain the decision already reached by this court. Reagan v. Farmers’ Loan & Trust Co., 154 U. S.,362; Railway Co. v. Gill, 156 U. S., 649; Cotting v. Stock Yards Co., 82 Fed. Rep., 845; The Express Co. Cases, 117 U. S. 1; A. T. & S. F. Railway Co. v. Denver & N. C. Ry. Co., 110 U. S., 667; Railway Co. v.
      Wellman, 143 U. S., 339; Interstate Commerce Commission v. C. N. O. & T. P. Ry. Co., 167 U. S., 499; Forsyth v. City of Hammond et al., 71 Fed. Rep., 443.
    From the brief of Foraker, Outcalt, Granger & Prior wé insert the following: 6 Am. & Eng. Ency. Law, 1006; Ohio Const., Sec. 8, Art. 4; State ex rel. v. Judges, 21 Ohio St., 1; Walker, Solicitor, v. Cincinnati, 21 Ohio St., 14; State v. Harmon, 31 Ohio St., 250; DeCamp v. Archibald, 50 Ohio St., 618; State ex rel. v. Cincinnati, 52 Ohio St., 419; In re Canada Northern Railway v. Bridge Co., 7 Fed. Rep., 653; Williams v. Railway Co., 40 Atl. Rep., 925; Callen v. Junction City, 23 Pac. Rep., 652; State v. Ensign, 56 N. W. Rep., 1006; 1 Goebel (Ohio Probate), 317; Wells v. McLaughlin, 17 Ohio, 99; Street Railway v. Cumminsville, 14 Ohio St., 523; Elster v. Springfield, 49 Ohio St., 82; Railroad Co. v. Elyria, 7 Circ. Dec., 312; 14 C. C. Rep., 48; 2 Dillon, Sec., 683; Keasbey on Electric Wires, Sec. 34; In re Stevens, 83 Cal., 331; State ex rel. v. Alling, 12 Ohio, 16; Ex parte Strang, 21 Ohio St., 610; Smith v. Lynch, 29 Ohio St., 261; State v. Smith, 44 Ohio St., 348; Kirker v. Cincinnati, 48 Ohio St., 507; County of Ralls v. Douglass, 105 U. S., 728.
   Williams, J.

The judgment of reversal announced after the first hearing of this case, was nol the unanimous decision of the, court, although no dissent appeared. The case having been more fully argued on the rehearing, and further considered by the court, is now for disposition as upon the original submission. The only question that has engaged the attention of counsel and the court on each of the hearings, is whether that provision of section 3461 of the Revised Statutes, which confers jurisdiction on the probate court to direct the mode of constructing a telegraph or telephone line in the streets of a municipality when its authorities and the company are unable to agree, is repugnant to the constitution of the state; and the sole ground of the attack upon the constitutionality of the provision alluded to, is that the power it purports to confer on'the court is purely legislative in character. It is a sound proposition that the distribution of the powers of the state, by the constitution, to the legislative, executive, and judicial departments, operates, by implication, as an inhibition against the imposition upon either, of those powers which distinctively belong to one of the other departments. But in classifying those powers and determining to which class various powers created by statute exclusively or properly belong, difficulties are encountered, and many nice distinctions have been made. If the power here in question is such that it can be conferred on any judicial tribunal, there can be no doubt of the cax>acity of the probate court to receive and exercise it, by virtue of the constitutional provision which enables that court to take any jurisdiction, in any county, which the legislature may confer upon it. Section 8, article 4. The statutory provisions which may aid in a determination of the nature of the power involved in this controversy, are those contained in sections 3454, 3461-1, 3471, and sections 3456, 3457, 3458, 3459 and 3461 of the Revised Statutes. These sections provide as follows:

Section 3454. “A magnetic telegraph company heretofore or hereafter created may construct telegraph lines, from point to point, along and upon any public road, by the erection of the necessary fixtures, including posts, piers, and abutments necessary for the wires; but the sáme shall not incommode the public in the use of such road.”

Section 3461-1. “Any person or persons may be and are hereby authorized to construct lines of electric telegraphs, from point to point, upon and along any of the public roads and highways, and across any of the waters within the limits of this state, by the erection of the necessary fixtures, including posts, piers, or abutments for sustaining the cords or wires of such lines; provided, that the same shall not in any instance be so constructed as to incommode the public in the use of said roads or highways, or endanger or injuriously interrupt the navigation of said waters; nor shall this act be so construed as to authorize the erection of any bridge across any of the waters of this*state.”

Section 3471. “The provisions of this chapter shall apply also to any company organized to construct any line or lines of telephone; and every such company shall have the same powers and be subject to the same restrictions, as are herein prescribed for magnetic telegraph companies.”

Section 3456. “Any such company may enter upon any land, whether held by an individual or a corporation, and whether acquired by purchase or appropriation, or in virtue of any provision in its charter, for the purpose of making preliminary examinations and surveys, with a view to the location and erection of lines of magnetic telegraph, and may appropriate so much thereof as may be deemed necessary for the erection and maintenance of its telegraph poles, piers, abutments, wires, and other necessary fixtures, and for stations, and the right of way over such lands and adjacent lands sufficient to enable it to construct and repair its lines.”

Section 3457. “No such company shall, without the consent of the owner thereof, in writing, enter a building or edifice, or use or appropriate any part thereof, or erect any telegraph pole, pier, or abutment in any yard or inclosure within which an edifice is situate, nor, in cases not provided for in section three thousand four hundred and sixty-one, erect any telegraph pole, pier, abutment, wires, or other fixtures, so near to any edifice as to occasion injury thereto, or risk of injury, in case such pole, pier, or abutment be overthrown, nor injure or destroy any fruit or ornamental trees.”

Section 3458. “When lands sought to be appropriated for lines of magnetic telegraph are held by a corporation incorporated under any law of this state, whether held by purchase or in virtue of any appropriation authorized by its charter or by any law of this state, the right of the company to appropriate such lands shall be limited to such use of the same as shall not, in any material degree, interfere with the practical uses to which the company is authorized to put such lands under its charter; and no such company shall erect poles, piers, abutments, wires, or other necessary fixtures, in such close proximity to any other .line of magnetic telegraph authorized by law to be constructed as to interfere mechanically with the practical working of such telegraph.”

Section 3459. “The right of such company to use lands held by a railroad company, for the permanent structures of such telegraph, shall be limited to the land which lies within five feet of the outer limits of the right of way of the railroad company, where it is practicable to erect the line within those limits; when the company seeks to appropriate lands that lie beyond those limits, its petition must set forth the facts showing that it is impracticable to erect such line within said limits, and designate, either by a survey and map, or by reference to monuments, or by other means of easy identification, the place or places Avhere the company 'seeks to establish the line; the probate court shall, in all instances, determine, if it be controverted by the railroad company, whether the erection of the line at the place or places designated will, in any material degree, interfere with the practical uses to which such railroad company is authorized to put such land; and if the court is satisfied that it Avill so interfere, it shall reject the petition, or require the structure to be erected at such .other place or places as the court shall direct; but nothing in this chapter shall be so construed as to authorize any company to appropriate the use of the track or rolling-stock of any railroad company for the purpose of transporting poles, materials, or the employes of such telegraph company, or for any other purpose Avhatever.”

Section 3461. “When any lands authorized to be appropriated to the use of a company are subject to the easement of a street, alley, public, way, or other public use, within the limits of any city or village, the mode of use shall be such as shall be agreed upon between the municipal authorities of the city or village and the company; and if they can not agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court of the county, in a proceeding instituted for the purpose, shall direct in Avhat mode such telegraph line shall be constructed along such street, alley, or public way, so as not to incommode the public in the use of the same; but nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, alley, or public way, beyond what may be necessary to restore the pavement to its former state of usefulness.”

It may be observed, at the outset, that the effect of section 3471, is to place telephone companies on the same footing as telegraph companies, so that when the latter kind of company is mentioned in the other sections of the statute, the former is also included. And that, under sections 3454 and 3461-1, companies of either kind, when created, obtain from the state, franchises to construct and maintain their lines, from point to point, upon and along any public road or highway, and across any of the waters, within the state, by the erection of the necessary fixtures, including posts, piers, and abutments necessary for sustaining the cords or wires for such lines, subject only to the limitation that the' lines shall not be so constructed as to incommode the public in the use of the roads, and highways, or endanger or injuriously interrupt navigation. In order that such companies may fully enjoy the franchises thus granted them by the state, they are clothed, by section 3456, with the authority to appropriate any lands of individuals or corporations that are deemed necessary by the companies for the erection and maintenance of their poles, piers, abutments, wires, and other appliances, and the right of way over adjacent lands sufficient to enable them to construct anct repair their lines. But this right of appropriation of private property for the use of such companies is subject to certain limitations prescribed in the subsequent sections, one of which, contained in section 3457, forbids the appropriation or mse by such company, without the owner’s consent, of any yard or enclosure within which an' edifice is situated, or the erection of any pole or structure so near to any edifice as to occasion injury or risk of injury thereto, or so that it will injure or destroy any fruit or ornamental tree. Another limitation, which is contained in section 3458, restricts the right of the company in the appropriation of lands held by another corporation, to such use of the same as will not in any material degree interfere with the practical use which the other corporation is authorized by its charter to make of such lands; and, it forbids the construction of the company’s line in such close proximity to another such line as to interfere, mechanically, with the practical working of the latter. By section 3459, a restriction is imposed on the right of appropriation of property held by railroad companies, to the effect that there shall not be taken for any permanent structure, any part of the railroad right of way that lies more than five feet from its outer limits, where it is practicable to construct the telephone or telegraph line within those bounds; and if it be claimed that is impracticable, the appropriation petition must state the facts showing it to be so. When the petition is controverted, the probate court is required, in all instances, to determine whether the line at the place jjroposed will, in any material degree, interfere with the practical uses which the railroad company is authorized to make of its right of way, and if satisfied it will so interfere, the court is empowered to reject the petition, or to require the telephone poles or structures to be erected at such other place or places as the court may direct. It may be well to notice here the nature of the power conferred on the probate court by this provision of the statute; for it is obvious that it is not different in nature from the power conferred by section 3461. It is essential that the rights of the two corporations, each holding separate franchises from the state, with respect to the uses which each are claiming of the same property, should be so adjusted that both may be able to carry out the purposes of their creation, and neither defeated in their objects by the conduct of the other. To accomplish that result, some impartial tribunal must be clothed with the power to hear and determine, on proper application, what mode of use by each company of the same property will enable both companies to carry on their business without obstruction by the other. Where, it may be asked, could that power be more appropriately lodged than in the tribunal in which the appropriation proceeding is had? And, can it be any the less judicial in its nature because exercised by the court in the first instance, than it would be if resort were had to a court of equity to settle the dispute, after actual conflict between the two companies had arisen" If it is a judicial function to direct where the poles of a telephone line shall be placed in order to prevent interference with the proper use of a railway, it must be equally so to direct the mode of construction of the line in other respects so as to accomplish the same result, or so as to avoid unnecessary obstruction to the use of a public street. It may be said that the proceeding under this provision of the statute does not involve the'exercise of any supervisory or administrative power belonging to municipal authorities. Neither does that under section 3461. That section makes provision for all further appropriation proceedings that are necessary to the complete enjoyment by the companies of their franchises, by authorizing the condemnation of the easements appurtenant to property abutting on the public streets and ways, the owners of which are en-' titled to condensation for the new burden. And then follows the provision in question, designed, evidently, to furnish a competent tribunal, and provide a method of procedure, for the adjustment of any controversy between the company and the municipal authorities in regard to the mode of constructing the companies’ lines in the streets; that being the only remaining step necessary to enable the company to enter upon the full use of its franchises. The provision is that, “the mode of use” of the streets, “shall be such as-shall be agreed upon between the municipal authorities of the city or village, and the companj; and if they can not agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court of the county, in a proceeding institued for the purpose, shall direct in what mode such telegraph line shall be constructed along such street, alley, or public way, so as not to incommode the public in the use of the same; but nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, alley, or public way, beyond what may be necessary to restore the pavement to its former state of useful-‘^j'-ness.” This is practically a provision for an appropriation proceeding against the municipality, and it is the only proceeding of that nature that is necessary against the municipal body in order to enable the company to make the needed uses of its streets. It will be noticed that it is not the right to use the streets that is made, the subject of agreement between the company and the municipal authorities, or of determination by the court. That right, as has been seen, is granted to the company directly by the legislature, and it is not made to depend upon any consent or agreement on the part of the municipality. It is only the mode of such use that becomes the subject of agreement or judicial determination. The power of eminent domain residing in the state, it has been held, under our present constitution, is committed to the control of the general assembly by the grant of legislative power, and it may-be exercised by that body directly, or by agencies like private corporations, in such manner, under such conditions, and through such tribunals having capacity to receive the jurisdiction, as may be, by legislative enactment provided; subject, however, to the constitutional requirement that the property taken be for a public use, and to the constitutional guaranty of compensation for private property so taken. A municipal corporation, though holding the fee in its streets, has no private proprietary right or,, interest in them which entitles it to compensation, under the constitution, when they are subjected to an authorized additional burden of a public nature. Lewis on Eminent Do' main, section 119. Being charged with a public duty only, with respect to the streets under its control, including that of keeping them in repair, the compensation it is allowed to demand or receive for the use of its streets by a telephone company is expressly limited, by the provision of the statute under consideration, to “what may be necessary to restore the pavement to its former state of usefulness,” where it is disturbed in the construction of the company’s lines. This compensation not being for any private property taken, may, without interfering with any constitutional restraint, be assessed by the court, without a jury. Nor can there by any doubt that the use of property, and of highways, for the legitimate purposes of a telephone or telegraph company, is a public use within the purview of the. constitution, nor, that the occupation of streets for those uses is consistent with their original design. Indeed such companies have become indispensable business and social agencies, which materially relieve the public highways from use by the ordinary methods of travel, thus contributing to their convenience and safety. The statute contemplates that if the mode of using the public ways of cities and villages by telephone companies were left entirely to agreement between the council and company, the franchise of the latter might be made unavailable by the refusal of the former to negotiate with the latter, or by bona fide disagreement of the parties, a contingency not unlikely to occur; and hence, the necessity for the provision of section 3461, now in question, by which jurisdiction is conferred on a competent court to determine the mode of such use by an order binding on both parties. Whether that provision be considered as strictly a part of the system established for making appropriations by such companies under the power of eminent domain, or as incidental and auxiliary thereto, it calls for the exercise of judicial functions of the same general nature.

The contention of those who contest the constitutionality of this statutory provision is, that the proceeding authorized by it, though not nominally so, is in reality, an appeal from the action of the municipal council, a purely legislative body, the purpose of which is to invoke the exercise of powers by the court, of the same legislative character as those that have been exercised by, and properly pertain to, the council. This is an incorrect view of the statute. The proceeding is not an appeal from the council, either in substance or form. An appeal is the removal of a cause or matter from an inferior jurisdiction after its decision, to a superior jurisdiction for re-trial on its merits; and, a proceeding in a superior jurisdiction cannot, with any propriety, be called an appeal where the cause or matter involved was not before any inferior tribunal or body. No action of the council, nor any matter within its cognizance, is brought before the probate court, by the proceeding therein under the statute, for review or reconsideration. The council is given no power to direct in what mode the lines of a telephone company shall be constructed in the streets of the municipality. Its sole province is to come to an agreement with the company in regard to the mode of using the streets by the company. The making of such agreement between the parties is not involved in the proceeding instituted in the court, nor is its action in that regard in any way invoked. The jurisdiction conferred on the court is to determine the controversy between the disputant corporations, arising from their disagreement or failure to agree, by an order binding on both, directing in what mode the telephone lines shall be constructed in the streets and alleys, so as not to incommode the public in the use of the same. The method of calling this jurisdiction into exercise is not by appeal, and could not be so, for the reason already given, but, in the language of statute, is by an original “proceeding instituted for that purpose.” The institution and prosecution of a legal proceeding in a court, plainly comprehends the filing of a proper complaint, process for bringing the necessary parties into court, and judicial inquiry according to the usual rules and practice of courts. And this fact, alone, of conferring on a judicial tribunal in the first instance the power to act in a given matter, is of controlling importance in giving judicial character to the nature of the poAver; though that is not necessarily a conclusive test, for if it were, the existence of a statute would establish its validity ; but it is decisive, in that respect, unless it is reasonably certain that the power belongs exclusively to the legislative or executive department. This court, in State v. Harmon, 31 Ohio St., 250, 259, approved of that principle, as stated by Selden, J., in Cooper’s case, 22 N. Y., 84, as folloAvs: “The principle * * * obviously is, that where any poAver is conferred upon a court of justice, to be exe’rcised by it as a court, in the manner and Avith the formalities used in its ordinary proceedings, the action of such court is to be regarded as judicial, irrespective of the original nature of the poAver. The legislature, by conferring any particular poAver upon a court, virtually declares that it considers it a power which may be most appropriately exercised under the modes and forms of judicial proceedings.”

In this important feature our statute is the opposite of the- Connecticut statute Avhich was held unconstitutional by the Supreme Court of that state in the Appeal of the Norwalk St. Ry. Co., decided July 13, 1897, and reported in the 69 Conn., 576, and in 37 Atlantic Rep., 1080, which is cited, and chiefly relied on by the plaintiff in error to sustain its position with respect to the invalidity of our statute. The statutory provisions considered in that case are embraced in two sections, one of'which Avas passed in 1893, and the other in 1895. The former provides that when any street railway company desires to lay its tracks, or any additional tracks, in the streets of any city, town, or borough, it shall make and submit a plan for laying its tracks, etc., to the mayor and common council of the city, the selectmen of the town, or warden or burgesses of the borough, who may adopt the same, or “make such modifications therein as they deem properand, that “no such company shall construct such railway or lay additional tracks” in the streets of such city, town, or borough, except in accordance with a plan approved by such local authorities. The section contains the further provision,' that “the refusal or neglect of any such local authority to notify said company of its decision (on the company’s application, within a specified time) shall be deemed to be a refusal to approve and accept said plan as presented by said company.” The section adopted in 1895, provides that, when the local authorities named in the former section, shall make or render any decision or order with respect to any matter relating to any street railway within their jurisdiction, the company may appeal therefrom to the superior court, or a judge thereof, “and said court or judge shall make such order in reference to said matter appealed from, as may by it or him be deemed equitable in the premises.” Then follows the further provision that, whenever the local authorities named in tlie act of 1893, above referred to, shall thereunder, “be deemed to have refused to approve or accept any plan presented by any street railway company, said street railway company shall have a like right of appeal therefrom to said superior court or any judge thereof ; ■ and said court or judge shall have the same powers with reference to said plan and the acceptance or modification thereof that said municipal authorities would have had under the provisions of said act, and may make all such orders with reference thereto as may be deemed equitable.” Perhaps it may aid somewhat in arriving at a clearer understanding of the decision in the Connecticut case referred to, to notice here that the act of 1895 provides for appeals in two distinct classes of cases, and that the' powers conferred on the court or judge by the respective appeals, are somewhat different. It first provides for appeals from any order or decision made or rendered by the municipal authorities, on the railway company’s application, and the power conferred on the court or judge in that class of cases is simply to make such order in the matter so appealed from as the court or judge may deem equitable; then it makes separate provision for appeals from the neglect or refusal of the municipal authorities to act upon the application of the railway company within the required time, and, in cases of that kind it is provided that the court or judge “shall have the same powers that the municipal authorities would have had” under the statute of 1893. It is this last provision, and that alone, by which it was attempted to confer on the court or judge, all the powers of the municipal council, that, in the opinion of the Supreme Court of Connecticut, made the functions of the appellate court or judge so essentially and distinctively legislative as to render that provision invalid.

The other provisions of the statute, including that providing for appeals in the other class of cases, that is, from orders and decisions made and rendered by the council, in regard to which, as above shown, the statute does not purport to confer on the appellate court or judge the powers of the council, but limits the jurisdiction to the making of such orders as shall be deemed equitable, were held valid, and an appeal of that kind sustained, in the Central Railway & Electric Co’s Appeal, reported in 67 Conn., 197. This case was not overruled by the later case of the Nor-walk Co’s Appeal, supra, but was distinguished. In that part of the opinion in the last case which, distinguishes the former one, the provision of the statute for appeals from orders and decisions of the municipal council, and the power thereby conferred on the court or judge, are referred to as follows: “The act of 1895, provided, among other things, that an aggrieved person might appeal from an order made by a municipal council in pursuance of the act of 1893; that such appeal should be by petition to the court, which should specifically state the portion of the order appealed from, and the reasons, and be served on the council, and that such appeal should be tried by the court, and appropriate judgment rendered.” Then, the learned judge, after giving the reasons for sustaining that provision of the statute and the appeal taken under it in the former case, proceeds to state the difference in the provision in question authorizing appeals when there is a refusal of the council to act, and in the nature of the power it purports to confer on the appellate court or judge, as follows: “But the act of 1895 goes further, and contains an additional provision, which is not fairly susceptible of being construed as merely providing for a process to bring into action the judicial power of the court, and which, without any action by a municipal council other than a failure to act within a limited time, purports to transfer to the court all the powers conferred on municipal councils by the act of 1893. The distinction between the two provisions of the act is vital.” So that, the real ground of that decision, holding invalid the statutory provision there in question, is that its purpose was to transfer to the appellate tribunal, to be exercised by it, all the legislative and administrative powers of the municipal council over the subject-matter of the appeal. That principle has no application to our statute; for, as has been here: tofore shoAvn, the proceeding authorized by it is in no sense a substitution of the court for the municipal council, nor in the nature of an appeal from that body, nor does it transfer to the court, to be exercised by it, any poAver primarily conferred on that body, nor purport to do so. And, furthermore, Avhether the distinction made in the Connecticut case between the different proAnsions of the statute there considered be substantial or not, it is clear the proceeding under each provision is strictly an appeal, in the appropriate sense of that term, from a legislative body, on matters originally committed to it, AArhich, of itself, is a feature of controlling influence in fixing the legislative character of the power conferred, and which is AAdiolly lacking in our statute.

The reasonable limits of an opinion, already enlarged, AA'ill not permit a revieAV of all the cases cited by counsel for the plaintiff in error. We have carefully examined them all, and find none of them more directly in point than the one just noticed, and none, Ave believe, are claimed to be so.

“It is certainly clear as a general rule,” says Selden, J., in Cooper’s case, supra, “that whenever the law confers a right, and authorizes an application to a court of justice to enforce that right, the proceedings upon such an application are to be regarded as of a judicial nature.” It is competent for the state, through its legislative department, to grant to telephone and telegraph companies organized under its authority, the right to construct their lines in the streets of municipalities, and in the present instance the grant was so made. The inability or failure of the council to come to an agreement with the company in regard to the mode of using the streets for that purpose, practically amounts to a denial of the company’s right, the remedy for the enforcement of which is that provided by section 3461 of the Revised Statutes. The administration of that remedy does not involve the exercise of any continuing supervisory powers over the municipal, or telephone corporation, nor the adoption or execution of administrative regulations for the government of either, but consists of an order made by the court in the usual manner of legal proceedings, after a hearing of the allegations and evidence of parties who are brought before the court by proper process.

It is necessary, no doubt, to' specify in the order, with reasonable certainty, the mode of construction of the company’s lines so that they will not incommode the public in the use of the streets; and, it is true that an order of that nature can only be performed, or its execution enforced in the future. But, while orders of that description may be infrequent, they are not unknown to the courts. In Pennsylvania v. The Wheeling Bridge Co., 13 How. (U. S.), 518, 626, the court, after the examination of plans submitted, and the hearing of expert and other evidence, entered its order directing the defendant to so change the construction of its bridge over the Ohio river, according to certain detailed plans and specifications therein set forth, as not to obstruct the navigation of the river. And other instances of like orders and decrees of courts may be found in the books. The ca'se of the Canada Northern R’y v. International Bridge Co., 7 Fed. Rep., 653, was a proceeding in a federal court under an act of congress which “authorized the construction and maintenance of a bridge across the Niagara river by the International Bridge Company, and provided that ‘all railway companies desiring to use said bridge shall have and be entitled to equal rights and privileges in the passage of the same, and in the use of the machinery and fixtures thereof, and of all the appurtenances thereto, under and upon such terms and conditions as shall be prescribed by the district court of the United States for the northern district of New York, upon hearing the allegations and proofs of the parties, in case they shall not agree.’ The Canada Southern Railway Company subsequently presented their petition under this act to the district court of the United States for the northern district of New York, and alleging that it had never been able to agree with the International Bridge Company upon the amount of compensation which it should pay for the use of such bridge, prayed the court to determine and prescribe the terms and conditions upon which it might use the said bridge, together with the machinery, fixtures and approaches.” The jurisdiction of the court was called in question on the ground that the power which the statute attempted to confer on the court was legislative, and not judicial. But the court held, that: “A determination by a court, under the authority of a statutory enactment, in a case of disagreement, of the terms and conditions upon which a railway company should be entitled to the use of a bridge and its appurtenances, after hearing the allegations and proofs of the parties, is not an improper exercise of the judicial functions; that it is no less the exercise of a judicial function to prescribe a rule of conduct, or protect the exercise of a right during a future period, than it is to determine whether the right has been invaded in the past ; and that, when a statute refers the question of the conditions upon which an easement shall be enjoyed to a judicial tribunal for decision, after hearing the proofs and allegations of the parties, the implication is cogent that the decision shall proceed upon settled principles of law and equity, and not upon arbitrary discretion.”

The necesá^ for the existence of some tribunal authorized to hear and determine disagreements between municipalities and telephone companies with respect to the mode of construction of the companies’ lines in the public streets, is apparent, not only for the protection of the rights of the respective corporations, but also in the public interest, as conservative of peace and good order, and in securing to the public the full benefit of the service such companies are designed to afford, at those reasonable rates which always attend fair competition. And the best consideration we have been able to give this case has failed to satisfy us that the power conferred on the probate court by the statutory provision in question has been inappropriately bestowed. The argument to the contrary, thorough and able as it has been, at most has served to east a doubt upon the validity of the provision, but that is not enough to justify the court in holding it unconstitutional. The judgment is therefore

Affirmed.

Buricet, Spear and Davis, JJ., concur.

Shauck, C. J., and Minshall, J., dissent.


source: Caselaw Access Project

license: Public Domain

text:
    Ford et al. v. The City of Toledo et al.

      Assessments — Exemptions of property from assessments for sewers as provided in section 2SSO, Rev. Stat. — Applicable, where — “Local Drainage” defined ■— When sufficient to entitle land to exemption — Vacant lots receiving benefit from adjacent sewer subject to assessment, -when.

    1. Section 2380, of the Revised Statutes, and the exemptions of property from assessments for sewers as therein provided, are applicable where the assessment is levied for the construction of a main sewer in a city of the third grade of the first class.
    2. The “local drainage” contemplated by that provision, is that which provides the lot or land with adequate drainage for the necessary and usual purposes of sewerage; and it is not enough, to entitle a lot or land to exemption from assessment, that it is provided with sufficient surface drainage, or does not need drainage of that kind.
    3. Where the lot or land is in need of local drainage, it is not exempt because it is entirely unimproved, and there is no immediate need for such drainage. Vacant lots and lands may, and usually do receive a present special appreciable benefit from the construction of a sewer in proximity with, and accessible by them for sewerage purposes, sufficient to sustain an assessment made on the basis of benefits.
    (Decided January 22, 1901.)
    Error to the Circuit Court of Lucas county.
    The action below was brojight by the city of Toledo for the use of P. A. MacGahan, against Samuel A. Ford and others, to recover the amount of assessments levied on'their lands for the construction of a main seAver in sewer district No. 26 in the city of Toledo. The averments of the petition showed that, the proceeding’s for the establishment of the district, the location and construction of the sewer, and levying the assessments, were regular and in conformity with the statute. The mode adopted for making the assessment was according to benefits to the property in the district, and the amount levied on the property of the defendants was apportioned by the committee on that basis. The defendants admitted by answer the regularity of the proceedings, but contested the plaintiff’s ciaim on the ground that their lands were already provided with sufficient local drainage, and needed none that would be supplied by the sewer; and that their lands were not in anyway benefited by the construction of the sewer. The common pleas court found for the defendants, and the cause was appealed from its judgment to the circuit court, which, upon final hearing, made a finding of facts as follows:
    ’ “1. That the city of Toledo is a municipal corporation duly organized and existing under the laws of Ohio as a city of the first class, third grade.
    2. That the common council of the city of Toledo passed the necessary legislation providing for the construction of a main sewer in sewer district number twenty-six of the city of Toledo.
    3. That said legislation so passed provided that the cost and expense of said main sewer, except that part in the street and alley intersections, should be levied and assessed upon the lots and lands bounding, fronting or abutting thereon, or benefited thereby in proportion to benefits the same might receive for local drainage, and the remainder of the cost and expense of constructing said sewer should be levied upon all the real property in main sewer district number twenty-six according to benefits.
    4. That a.11 right and interest in said assessment were for a valuable consideration sold and transferred to P. A. MacGahan and that he is the owner thereof.

      5. That the real estate described in the petition consists of river bottom and highland. That the river bottom is traversed by Ottawa river and said lowland is thirty feet below the highland.
    6. That said sewer is fifty-four inches inside diameter, and six hundred feet thereof is constructed across said low land so that forty-five inches of the inside diameter is above the level of said lowland.
    7. That said real estate has been for more than thirty years last past and the greater part thereof was at the date of the construction of said sewer used exclusively for agricultural and pasturing purposes, and that there are no dwellings or other buildnigs located thereon, but a part thereof was and is platted as city lots.
    8. That the highland is traversed by a natural ravine emptying into Ottawa river.
    9. That all of said upland was so situated topographically at the time of the passage of the legislation for said sewer and at the time of the construction thereof, as to have, and it did have, sufficient natural drainage, and the natural or surface drainage of the lowland was not improved thereby.
    10. That said real estate derived no benefit by reason of the construction of said sewer other than that resulting to property generally in said sewer district, from having the sewerage carried away to said river outlet, and the special local benefit that will result thereto whenever said lots or lands shall be built upon. Surface water from said lowlands can not be drained into said sewer as now situated.
    11. That said sewer is not designated for local drainage to the said real estate or any part thereof, and lateral local sewers leading thereto must be constructed to make it available for surface drainage or local sewage for any of said lots or lands, but it was designated and built and may be used as a main sewer to carry surface water ¡and house drainage and sewage of all kinds from said sewer district to said outlet ; and much of said district is built upon and needs such outlet for its sewage.
    12. That said upland at the date of the passage of the legislation providing for the construction of, and at the date of the construction of said sewer, did not need local drainage to carry the surface water away, and had no immediate need of house drainage or other local drainage to dispose of any sewage originating on said lots or land. The same was and is true of the lowland excepting the fact that it needs local surface drainage, but the same is not afforded or improved by said sewer.”
    And on the facts so found the court held the assessments were valid, for the full amount, with interest and penalty; and gave judgment accordingly. Error is prosecuted here to reverse the judgment of the circuit court.

      G. F. Watts and H. A. Merrill, for plaintiffs in error,
    cite the following authorities:

      Wewell v. Cincinnati, 45 Ohio St., 407; Toledo v. Railway Co., 2 Circ. Dec., 450, 4 C. C., 113; Cincinnati v. Hess, 10 Circ. Dec., 479, 9 C. C., 251 (affirmed 61 Ohio St., 638); Hermann v. State, 54 Ohio St., 506; Stewart v. Palmer, 74 N. Y., 189; Chamberlain v. Cleveland, 34 Ohio St., 551; Blue v. Wentz, 54 Ohio St., 247; Cincinnati v. Batsche, 52 Ohio St., 324; Schroder v. Overman, 61 Ohio St., 1; Norwood v. Baker, 172 U. S., 269; Walsh v. Barron, 61 Ohio St., 15.

      P. A. MacGahcm and Charles 8. Northup, for defendants in error,
    cite the following authorities:

      Toledo v. Ford, 11 Circ. Dec., 115, 20 C. C., 294; Chamberlain v. Cleveland, 34 Ohio St., 552; Cincinnati v. Hess, 10 Circ. Dec., 479, 19 C. C., 252 (affirmed 61 Ohio St., 638); Wewell v. Cincinnati, 45 Ohio St., 407.
   Williams, J.

The assessments are claimed to be invalid, because they are forbidden by section 2380, of the'Revised Statutes, Avhich provides that: “The assessment shall not exceed the sum that would, in the opinion of the council, be required to construct an ordinary street sewer, or drain, of sufficient capacity to drain or seAver such lots or lands; nor shall any lots or lands be assessed that do not need local drain.age, or which are then provided thereAvith; and the excess of the costs over the assessment herein authorized, shall be paid out of the sewer fund of the corporation; or in cities of the third grade of the first class, if the council so determine, may be assessed, in addition to pther taxes now authorized by laAV, on all the real property in the sewer district in which said sewer is or may be constructed according to benefits, * * * .” It is the contention of the plaintiffs, that the facts found show that their lands were already provided with all necessary drainage when the sewer Avas constructed, and therefore did not need that which the sewer was designed to supply; and that, the sewer furnished no drainage in addition to that with which the lands were already provided, and consequently they were in no way benefited thereby. That the section referred to is applicable to main sewers, is apparent from the context. The preceding section, (2379) requires that, “the council shall provide for assessing the costs and expenses of constructing main sewers, upon the lots and lands bounding or abutting upon the streets, lands, alleys, highways, market spaces, public landings, and commons, in or along which the same shall pass, by the feet front, or according to the valuation of the same on the tax list, or according to benefits, as it shall determine.” The limitations' on the assessments authorized by that section, are prescribed in section 2380. Provision is then made for assessments for local sewerage by section 2381.

Nor do any of the subsequent provisions of section 2380 remove, or affect, the exemptions authorized by that section, nor prescribe any different rule, or mode, or power of assessment for a main sewer in cities of the third grade of the first class, except in regard to the excess over the assessment authorized by the preceding clause of the section. In such cities, the council is authorized to levy such excess on all the real property of the sewer district according to benefits; but that is the extent to which power is given such city different from that which governs other municipalities in levying assessments for main sewers; We do not concur in that part of the opinion of the circuit court which seems to hold differently.

Only those lots and lands, however, embraced within the bounds which may be assessed for a main sewer, are exempt from such assessment under section 2380, that, in the language of the section, “do not need local drainage, or which are then provided therewith.” When it is determined what constitutes local drainage, within the meaning of the statute, it becomes, in each case, a qxiestion of fact whether the lots or lands involved need, or are provided with, drainage of that kind. It was held in Wewell v. Cincinnati, 45 Ohio St., 407, that, in order to give application to the exemption of the statute, it was not necessary the local drainage should be provided by municipal authority. If for any reason it exists, and is adequate, the statute applies. In that case a large sewer emptying into the river, ample for all local sewage of lands entitled to connect with it, had been constructed without municipal action, and that whs held sufficient to exempt the lands so entitled to connect, from assessments for another sewer constructed by the city. The question here, however, is somewhat different. It is whether present sufficient surface drainage constitutes local drainage within the purview of the statute; or must it be such as provides the land with adequate drainage for the necessary and usual purposes of sewerage? We think it must be of the latter character to work an exemption of the land from assessment. There is no direct finding that the lands of the plaintiffs in error were provided with drainage of that kind, nor that they did not need such drainage. Certain probative facts are found which tend to establish the ultimate fact, but in our opinion they fall short of that result. As we interpret them they show that the lands were supplied with sufficient natural or surface drainage and did not need immediate house or local drainage to dispose of sewage originating on the lands, but that they would be benefited as other lands in the sewer district by having the sewage carried away, in addition to the local benefit when the lands are built upon. To authorize an assessment for sewer purposes, it is not necessary that the property should have immediate need for the use of the sewer. If so, vacant lots on improved streets, adjacent to buildings would be exempt. And, the length of time the ground may probably remain vacant, only goes to the urgency of the need and the measure of the benefit. But, that vacant ground may and generally does receive a present special appreciable benefit from the construction of a sewer, on account of its proximity and accessibility cor all sewerage purposes, is known to everyone conversant with the subject. The drainage of sewage into an open ravine in a city would be inimical to the public health, and can hardly be considered such local drainage as the statute contemplates. On account of the situation and condition of the lands of the plaintiffs in error this seems like an extreme case for assessment; but it purports to have been levied according to local and special benefits, and the presumption is that the committee acted upon sufficient information, and according to law. The burden is upon the plaintiffs in error to show that their lands did not need local drainage, or were provided therewith, to entitle them to claim exemption from the assessment. The findings of the circuit court do not so show, in our opinion. The judgment of a lower court should not be reversed, unless the error is manifest, and it is entitled to that construction of its record which is most favorable to the judgment.

Judgment affirmed.

Shauck, C. J., Burket and Spear, JJ., concur.

Minshall and Davis, JJ., dissent.


author: Minshall, J.

text:
    First National Bank v. Hayes & Sons.

      Court requested, by each party, to instruct jury in its favor— Court thereby clothed ivith function of jury — Verdict of jury, in such case, should not be set aside by reviewing court, when — Bank deposits forfeit money with county board at request of firm bidding on bonds — Mistake in instructions to bank — Knowledge of mistake by depositing bank — Burden of loss — Law of contracts — Agency.
    1. Where, at the conclusion of the evidence in a case, each party requests the court to instruct the jury to render a verdict in his favor, the parties thereby clothe the court with the functions of a jury, and where the party whose request is denied, does not thereupon request to go to the jury upon the facts, the verdict so rendered should not be set aside by a reviewing court, unless clearly against the weight of the evidence.
    2. A firm dealing in bonds at Cleveland, Ohio, requested a bank at Victoria, Texas, to deposit $1,000 with a certain county board at that place, to protect the firm’s bid on certain bonds, advertised for sale by the board. The bank complied with the request, but before doing so, had notice of such facts as would have informed an ordinarily prudent person that there was a mistake in the bid, and that the deposit would be of no avail to the firm. Held: That the loss if any should be borne by the bank.
    (Decided January 22, 1901.)
    Error to the circuit court of Cuyahoga county.

      Dickey, Brewer & McGowan, for plaintiff in error.

      Kline, Carr, Tolies & Goff, for defendants in error.
   Minshall, J.

The plaintiff below, The First National Bank of Victoria, Texas, brought suit against the defendants, Hayes & Sons, to recover $1,000 it claimed to have deposited for them at their request, with the commissioners of Victoria county, Texas, to protect a bid that had been made by them for eertain bonds advertised for sale by the commissioners of that county; and $25 for services.

The defendants answered, admitting the request, but averring that there was a mistake in their bid; it was for five per cent, bonds, when in fact they intended to bid for six per cent bonds, the only bonds the county had to sell or had offered to sell, the mistake having been made by the stenographer; and that the fact that such mistake had been made was known to the plaintiff at the time it made its deposit.

The case was tried to a jury, and at the close of the evidence on both sides, the plaintiff moved the court to instruct the jury to return, a verdict in its favor, and the defendants made a like motion for a verdict in their favor. On consideration the court instructed the jury to return a verdict for the defendants, to which the plaintiff excepted, but did not request the court to submit the case to the jury for its determination on the evidence. The first question that arises is whether this was error, though there may have been some evidence tending to support the plaintiff’s ease. ' If no motion had been made by the plaintiff and there was any evidence tending to support its case, it would have had the undoubted right to have had the same submitted to the jury, and it would have been error in the court to direct a verdict for the defendants. Of this there can be no question. Here, however, both parties on the termination of the evidence in the case, made similar requests — the plaintiff for a verdict in its favor and the defendants for a verdict in their favor, both parties in this way voluntarily submitting the case to the court for its determination upon the evidence. In Beuttell v. Magone, 157 U. S., 154, where like request had been made, the Justice delivering the opinion says: “This was necessarily a request that the court find the facts, and the parties are therefore concluded by the findings made by the court, upon which the resulting verdict was given.” In Thompson v. Simpson, 128 N. Y., 270, where upon the conclusion of the evidence each party had asked the court to direct a verdict in his favor, and the court thereupon directed a verdict for the defendant, the court said: “The effect of a request by each party for a verdict in his favor clothed the court with the function of a jury, and it is well settled that in such case, where the party whose request is denied, does not thereupon request to go to the jury upon the facts, a verdict directed for either party stands as would the finding of a jury for the same party in the absence of any direction, and the review in this court is governed by the same rules as in ordinary cases rendered without direction.”

The question seems new in this state, and is so possibly from the fact, that it will seldom happen, that at the close of the evidence each party will move the court for the direction of a verdict in his favor. But it seems conformable to reason that where it is done, each party must have intended to submit the case to the court for its finding upon the facts as well as the law; and when, as in this case, the party against whom the verdict is rendered does not ask to have the case submitted to the jury, he cannot be heard to' say there was error, because there was some evidence tending to support the issue in his favor. In such case the finding of the jury, in accordance with the instruction of the court, should be given the same consideration as if it had been rendered without such instruction. See, also, the following cases: Trustees v. Vail, 151 N. Y., 463, 467; Clason v. Baldwin, 152 N. Y., 204; Mascott v. Insurance Co., 69 Vt., 116; Mortgage Co. v. Elevator Co., 71 N. W., 130, 6 N. Dak., 407.

The question then presented by the record is, not whether there was any evidence to support the plaintiff’s claim, but whether upon the evidence adduced, the finding should have been for the defendant. And the question must be determined as if the case had been submitted to the jury upon the issues joined, without a direction to return a verdict for the "defendant ; for it is in fact the finding of the court upon the evidence submitted to it by the act of the parties, that is to be reviewed, and not whether there was some evidence tending to support the plaintiff’s claim; for, as already observed, the omission of the plaintiff, after the court had directed a verdict for the defendant, to ask it to submit the case to the jury, must be taken as a waiver of its right to have the jury pass upon the evidence. And it is more than probable that this was not a mere oversight, and that it was omitted for the reason, it is probable the jury would have rendered the same verdict the court had already directed on the motion of the plaintiff.

Was then the verdict rendered upon the instruction of the court so clearly against the weight of the evidence that it should be set aside and a new trial granted? We think not.

The real question at issue between the parties on" the trial, was whether the plaintiff had deposited the $1,000 with the county commissioners, with the knowledge of such facts as would have put a reasonably prudent person upon notice that there was a mistake in the bid of the defendants, and the deposit would be of no avail to them. It appears from the record that the county commissioners of Victoria eounty, Texas, had on May 17, 1895, authorized the issue of $71,000, six per cent, refunding bonds of the county; and had also advertised for bids on them to be received and opened at the office of the commissioners at 2:30 P. M., October 30, 1895. And that on the 29th of that month Hayes & Sons had submitted a bid by telegram, which reads as follows: “Will give hundred three premium and interest for seventy-one thousand five per cent, bonds.” Signed “W. J. Hayes & Sons.” By a mistake, either of the stenographer, or in the sending of the telegram, it was made to read five, instead of six per cent, bonds. At 3:37 on the afternoon of October 31 the plaintiff received a telegram from Hayes & Sons inquiring, “Who gets county bonds sold yesterday, if unsold protect our bid. Answer.” After having gone to the office of the county judge, president of the board, and learned the facts, the plaintiff in reply sent Hayes & Sons the following telegram dated October 31, 1895: “Your bid three per cent, premium on Victoria county five per cent, bonds accepted. We deposit one thousand dollars forfeit for you.” Signed by the cashier. Notice was also sent by the county judge to Hayes & Sons of the acceptance of their bid at 3:26 P. M. of the same day, requesting the deposit to be made, and statement of the time they would be ready “to consummate the deal.” The deposit was made by the plaintiff on the following day, November 1; and some three hours after the plaintiff received a telegram from Hayes & Sons, dated the same day, saying “Telegram received. Hold deposit arrival our representative Monday.” Evidently the plaintiff’s telegram of the previous day to Hayes & Sons was the first notice they had of the mistake that had occurred in making the bid. The record, however, shows that the plaintiff before it had received any telegram from Hayes & Sons, knew the character of the bid — that it was for -five instead of six per cent, bonds, and that the bonds for which bids had been requested were six per cent, bonds. This information the president of the bank had obtained at the commissioners’ office on the 31 inst.; having been called there by them for the purpose of consultation as to the bids. After having returned to the bank, the telegram from Hayes & Sons inquiring as to the sale of the bonds, and if unsold to protect their bid, was received. Now under these circumstances, what should a reasonably prudent person, acting for another, have done? That there was a mistake was apparent. Either Hayes & Sons had made a mistake in the wording of their telegram or were under the impression that five per cent, bonds had been offered. But the bank knew that-such bonds had not been offered and that a bid of five per cent, bonds could not be accepted. Under the circumstances Hayes & Sons were not bound by their bid to the commissioners. The minds of the parties had not met upon the same terms, so that there was no agreement between them. The commissioners could not accept, as they attempted to do, the bid of Hayes & Sons for five per cent, bonds, for they had no such bonds to sell; and could not by the statutes of the state (which are put in evidence), advertise or sell five per cent, bonds, until they had been properly registered, and approved by the attorney general, none of which things had been done at that time. It would therefore seem that when the plaintiff received the first telegram from the defendants it should have called their attention to the mistake, and awaited further instructions. Had it done so instead of at once making the-deposit, all trouble would have been avoided. Instead, however, of so doing, it made the deposit when it knew, or ought to have known, that it would be of no avail to Hayes & Sons, and would be retained by the county officials as a forfeit.

It is also claimed by the attorneys of Hayes & Sons that the evidence tends to show that there was collusion between the bank and the county officials, and also, that the deposit was not made until after the receipt of the second telegram from Hayes & Sons. Whether there be sufficient grounds for these claims we need not inquire, as we think the record shows that the deposit was made under circumstances that should have caused a prudent agent to have awaited further advices from his principal before making it.

Judgment affirmed.

Shauck, C. J., Williams, Burket, Spear and Davis, JJ., concur.


author: Shauck, C. J.

text:
    The Western Union Telegraph Company v. Smith.

      Action by farm owner against telegraph company for cutting trees along highway — Oral license, not authorized by landlord, from tenant, acted upon in good faith by company— Will defeat or mitigate recovery of exemplary damages though not compensation — Law of damages.

    In an action against a telegraph company by the owner of a farm for the wrongful cutting of shade trees growing along a highway which passes through it, an oral license from a tenant not authorized to give it, if acted upon in good faith, and the instructions of the company to its servants with respect to the manner of trimming trees along its line, if given in good faith, are competent to defeat or mitigate the recovery of exemplary damages, though not competent to prevent the recovery of full compensation.
    (Decided January 22, 1901.)
    Error to the Circuit Court of Clark county.
    Smith brought suit in the court of common pleas to recover damages for injuries done to his shade trees by the defendant. He alleged that he was the owner of a farm through which passes a public highway along which he had shade trees of much beauty. The company had wires along said highway and poles for their support; that in the growth of the trees their branches had reached the wires and interfered with their operation. Whereupon he authorized the company to trim the small branches of said trees each year, but only to such extent as might be necessary to prevent such interference. That in disregard of his rights and of the restriction placed by him upon said permission the company wrongfully and unnecessarily severed the tops of some of said trees and large limbs from others, thus destroying their beauty and usefulness as shade trees and unfavorably affecting their vitality. The material portion of the answer is a denial that the servants of the company liad trimmed the trees unnecessarily or in excess of the permission given. On the trial the plaintiff offered evidence tending to establish the allegations of his petition. The company offered evidence to show not only that the injury was much less than that which the plaintiff claimed and less than the testimony of some of his witnesses tended to establish, but also that a tenant in charge of the farm had given the company’s servants oral permission to trim the trees precisely as they were trimmed on this occasion. This evidence was admitted but the court instructed the jury: “If you find that the defendant’s servants did not do more to said trees than the petitioner says he had permitted it to do from, time to time, the plaintiff cannot recover even nominal damages from the defendant. But I charge you that any cutting of said trees beyond the extent of what he had so permitted, if you so find from the evidence, without the consent of the plaintiff, would have been wrongful and would entitle hint to recover at least nominal damages. And, the interest of said plaintiff in said trees being a property inhering in the land itself, such consent to cut and sever from said trees, limbs and branches in excess of that which he says he had given permission to do, would have to be in writing. No mere verbal permission to do such alleged excessive cutting would protect the defendant from liability for damages for such excessive cutting. * * * If you should find upon the said issues under the charge of the court and the evidence in favor of the plaintiff, he would be entitled to recover of the defendant actual or compensatory damages, the measure of which in a case where the trees injured, if you so- find, have no substantial value as timber severed from the realty, is the difference between the value of the land before and after the injury consequent upon such injury. * * * I charge you further that if you find from the evidence and the charge of the court that the plaintiff is entitled to compensatory damages, you are at liberty to go further and find what the law denominates punitive damages under the following circumstances: If you find from the evidence that the defendant’s agents in such cutting of said trees acted wantonly and recklessly:and without regard to the rights of the plaintiff then you may add such punitive damages as you may deem proper not beyond the amount in all of $5,000.00 (the amount sued for), and in such case you may take into consideration and allow as a part of compensatory damages, reasonable fees of counsel.”
    Evidence to shoAv that the trees were trimmed on this occasion in the usual manner and only to the usual extent, and that the company’s instructions to its servants Avere to trim the trees so as to keep the Avire clear for a year was offered by the defendant and rejected by the court. The jury returned a verdict in favor of the plaintiff for $2,350. A motion for a neAV trial was overruled and judgment rendered for the amount of the verdict. The judgment was affirmed by the circuit court.

      Oscar T. Martin and Geo. E. Fearons, for plaintiff in error.
    The principle of exemplary damages or punishment in civil cases was for many years the subject of much discussion among the text Avriters. Many opposed it as a violation of constitutional right and conceded that it was dangerous and liable to abuse, but finally it has become the rule in most of the states. 1 Sutherland, on Damages, page 722.
    The first and most glaring error to be discussed is that instruction of the court which solemnly declared the law of the land to be, that a party by his agent could grant a verbal permit to the agent of another party to do a certain act, and when action is brought for the consequences of such act and exemplary damages claimed, the fact that such verbal permission was granted would be no protection to the defendant.
    It is unquestionably true that plaintiff’s interest in his trees was an interest in real estate. It is also true that a. grant of an interest in real estate to be valid must be in writing. But the error consists in treating the permission to cut the trees as a grant, when it was in fact only a license. The defendant does not claim to have acquired of the plaintiff any property right in his trees, but only to have obtained a license to cut away limbs and branches. Cook v. Stearns, 11 Mass., 533; Thomas v. Sorrell, Vaughn, 351.
    A license may be oral and is revocable at the pleasure of the licensor, but revocation cannot affect the validity of the acts already done under the license. Wheeler v. West, 71 Cal., 126; Murray v. Gibson, 211 Ill. App., 488.
    A plea of license does not bring in question the title to real estate. Wheeler v. Powell, 7 N. H., 515.
    Licenses are not only valid Avhen created by parol but are usually so created. Texas Ry. v. Jarrell, 60 Tex., 267; Druse v. Wheeler, 26 Mich., 189.
    A parol license is an absolute defense against trespass for doing the act for Avhich permission Avas given, if done before revocation. Miller v. Auburn R. Co., 6 Hill N. Y., 61; Huff v. McCauley, 53 Pa. St., 206; Cook v. Box & Lumber Co., 87 Ind., 531; Williams v. Morrison, 32 Fed. Rep., 177; Sterling v. Warden, 51 N. H., 217.
    Parol licenses have even been held irrevocable when money has been expended under them, although the effect might result practically as vesting a permanent easement on land. Parol license to build a railway across one’s land where money was expended in reliance therein was held irrevocable in Campbell v. Railway Co., 110 Ind., 490; Pierson v. Canal Co., 2 Disn., 100.
    A license to enter upon the land of another and do a particular act or a series of acts, may be valid though not granted by deed or in writing. Such a license does not transfer any interest in land, although when granted for a valuable consideration and acted upon, it cannot be countermanded. Claflin v. Carpenter, 4 Met., 580; Chitty on Contracts, 300-2; Greenleaf on Evidence, 271.

      In an action for trespass for cutting and removing timber, tbe defendant assumed that he had a license to do the acts complained of by virtue of a verbal contract for the sale of the trees cut and removed and that the contract had been executed. This was properly held to be a good plea in bar to the action. Seleh v. Jones, 28 Ind., 255.
    But assuming that there must be consent in writing and that it was a statutory right, it was for the benefit of the owner of the land. It could therefore be waived by him, and if the issue is made upon such waiver or verbal permission, then it would be competent for defendant to show that such verbal permission had been granted.
    Section 6871 make it a statutory duty for a miner to do certain specific things, supply timber for props, etc., in his mine, yet the Supreme Court has held that the contributory negligence of an employe, who was injured by the failure of the mine owner to supply the necessary timber for props, etc., and the contributory negligence of the miner would defeat a recovery. Coal Co. v. Estievenard, 53 Ohio St., 43; 28 Am. & Eng. Ency. Law, Title, Waiver, p. 535.
    Sections 298 and 301 make it the duty of the operator of a coal mine to keep same free from coal gas and gives a cause of action for failure to comply with the statutory requirements. Yet held this did not abrogate the common laAv rule that one who contributes to cause an injury cannot recover. Krause v. Morgan, 53 Ohio St., 26.
    By granting verbal permission to trim the trees the owner waived the right to have same only in writing and cannot noAv insist upon the legal obligation to make such grant only in writing.

      The pertinency of the charge grows out of the facts of the asserted claim on the part of the defendant that fhe trees were a nuisance. Proof was offered tending to show it. The facts stated were attempted to be controverted, and the issue of fact was directly made between the witness Forgy, that the trees had a tendency to injure the roadway, and the witness Hill, who, in rebuttal, attempted to controvert the statement. The defendant, therefore, was entitled to an application of the law to that state of facts. Embler v. Walker, 51 Hun., 384; Gen. Dig., Vol 6, 996; Hickey v. Railway Co., 96 Mich., 498.
    When the plaintiff himself gives authority to enter upon his premises or into his house, he cannot, because the defendant exceeds or abuses his authority, convert that which was originally done under the sanction of his own license, into, a trespass, but must seek some other form of remedy. 23 N. E., 79; Dingley v. Buffman, 57 Me., 379; Smith v. Pierce, 110 Mass., 35; Cooley on Torts, 306; 13 Am. & Eng. Ency. Law — License, 546.
    One who enters by permission another’s close is not liable for entering another’s part of the close. Richmond v. Fiske, 160 Mass., 34; 35 N. E., 103; 110 Mass., 39.
    The court had charged in stating the issues, that the defendant did not have any right in said highway by virtue of its charter under the laws of the United States paramount to said plaintiff, which would authorize it to cut and trim said trees of said plaintiff without his consent. This took out of the case -the answer of the defendant as to its paramount right. Williams v. Sprigg, 6 Ohio St., 585
    Use of track is notice of right of way. Day v. Railroad Co., 41 Ohio St., 392.

      Under the rebuttal presumptions are those intendments of the law which only hold good until disproved. Chamberlain’s Best on Evidence, Sec. 314.
    The presumed consideration of promissory notes is good until the contrary is shown. That an interrupted exercise of a right for a long period with the knowledge of those who have a right to object, and without such objections it would be presumed that there was a legal acquirement of such right. Chamberlain’s Best on Evidence, See. 326; Harriman v. Railway Co., 45 Ohio St., 11; Goodin v. Canal Co., 18 Ohio St., 169; Railway Co. v. Zinn, 18 Ohio St., 417; B. & O. Ry. Co. v. Railway Co., 1 Circ. Dec., 60, 1 C. C., 100.
    Possession of land is evidence of title to be left to the jury. Wendall v. Blanchard, 2 N. H., 456.
    Presumption arising from great lapse of time. Carter v. Tinnicum Fishing Co., 77 Penn., 315.
    Unmolested possession for thirty years authorizes the presumption of a grant. Barclay v. Howell, 31 U. S., 498.
    A grant may be presumed from acts of use and occupation for ten years, accompanied by a claim of ownership. Burdeck v. Heirely, 23 Iowa, 511.
    Nor did the court in its charge instruct the jury as to the market value being the measure of damages, but stated the rule to be the value of the land, so that with the permitted evidence and the court’s charge, the jury could find any value. 14 Am. & Eng. Ency. Law., 467.
    The wanton and reckless act which would justify punitive damages, is such that implies intentional wrong. 1 Sutherland Damages, 724; Simpson v. McCaffery, 13 Ohio, 509.

      Little & Spencer and Edward S. Houck, for defendant in error.
    There was no evidence in the case tending to show permission to trim the trees, and there is no claim that there was written permission. Daily v. State, 51 Ohio St., 348; Sec. 3457, Rev. Stat.
    As to exemplary damage the charge of the court is fully supported by Roberts v. Mason, 10 Ohio St., 277; Railway Co. v. Slusser, 19 Ohio St., 157; Railway Co. v. Dunn, 19 Ohio St., 162.
    The measure of damages on account of injury to or destruction of trees depends upon their character and purpose. Thus where they have an intrinsic value separate from and not dependent upon the soil, the measure may be their value severed from the land. It is otherwise where their utility wholly or partly depends upon their attachment to and growth in the soil. Such are fruit, ornamental and shade trees. The measure of damages with respect to these, under the authorities, is that given by the court in its charge. Counsel seem to object to it as erroneous. Evans v. Keystate Gas Co., 148 N. Y., 112.
    The court follows its former holding in Dwight v. Railroad Co., 132 N. Y., 199, where the whole subject is elaborately discussed in the light of the authorities, and identically the same rule announced. It is recognized in the following cases and seems to be the settled law: Carner v. Railway Co., 43 Minn., 375; Hoye v. Railway Co., 46 Minn., 269; United States v. Taylor, 35 Fed., 484; Nixon v. Stillwell, 52 Hun., 353; Montgomery v. Locke, 72 Cal., 75; Mitchell v. Billingsley, 17 Ala., 391; Wallace v. Goodall, 18 N. H., 430; Kolb v. Bankead, 18 Tex., 228; Longfellow v. Quinsley, 33 Me., 457; Bennett v. Thompson, 13 Ired. (N. C.), 149; Hoyt v. Telephone Co., 60 Conn., 385; White v. Stoner, 18 (Mo.), App., 540; Shaw v. H. & St. L. J. Co., 54 (Mo.) App., 223; Graves v. Shattuck, 35 N. H., 257; Karst v. Railroad Co., 22 Minn., 118; Muldrow v. Railroad Co., 62 (Mo.) App., 431; Toledo v. Grasser, 6 C. D., 782, 12 C. C., 520; Befay v. Wheeler, 84 Wis., 135.
    It must be borne in mind that tbe value of the land was not the single thing sought. It was the difference in values before and after the injuries. If a distinction exists between the “value” of land and its “market value,” it is hardly conceivable that the difference between the values before and after the injury would vary from the difference between the market values before and after such injury.
   Shauck, C. J.

The trial of the case was unnecessarily prolonged and the record expanded by introducing the opinions of witnesses whose information did not exceed that of the jury. In other respects there appears to have intervened no error which substantially affected the recovery of compensatory damages, unless they exceeded the amount shown by the evidence. The instruction that oral permission beyond that given by the plaintiff in person, and admitted in his petition, would not avail the defendant, though indicating an incorrect view of the law, did not operate prejudicially in so far as a recovery of actual damages was had. The undisputed evidence shows that the tenant from whom such further permission was said to have been received was without authority to give it. A license, whether written or oral, if given by an unauthorized person, would not defeat a recovery by the owner of damages actually sustained.

But the instructions given permitted the jury to award exemplary damages and the amount recovered suggests that damages of that character entered into the verdict. A consideration of the rules with respect to such damages is required by the fact that the instructions permitted their recovery, the record not showing affirmatively that they were not included in the verdict. Such damages being puhitive in their nature are an exception to the general rules that in private actions the injured party is to be made whole, and that acts deemed worthy of punishment are prosecuted by the state. With respect to the recovery oi damages of that character in private actions the different states have not adopted a uniform rule. The requisites to their recovery in this state were described in Simpson v. McCaffrey, 13 Ohio, 522: “The principle of permitting damages in certain cases, to go beyond naked compensation, is for example, and the punishment of the guilty party for the wicked, corrupt and malignant motive and design, which prompted him to the wrongful act. A trespass may be committed from a mistaken notion of power, and from an honest motive to accomplish some good end. But the layr tolerates no such abuse of power, nor excuses such act; yet, in morals, and the eye of the law, there is a vast difference between the criminality of a person acting mistakenly from a worthy motive, and one committing the same act from a wanton and malignant spirit, and with a corrupt and wicked design. Hence where a jury are called upon to give smart money, or damages beyond compensation, to punish the party guilty of the wrongful act, any evidence which would show this difference, or rather all the facts and circumstances which tend to explain or disclose the motives and design of thé party committing the wrongful act, are evidence which should go to the jury for their due consideration.”/^That “a corporation may be subjected to exemplary or punitive damages for tortious acts of its agents or servants done within the scope of their employment, in all cases where natural persons, acting for themselves, if guilty of like tortious acts, would be liable for such damages,” was held in the Atlantic and Great Western Railway Company v. Dunn, 19 Ohio St., 162. Although the case was decided by a divided court, it es: tablished the law upon the subject for this state. But since in cases of this character the punishment may not fall upon the actual wrongdoer, they present reasons why great care should be taken that such damages are not imposed unless all the conditions for their recovery are present. To show that they were not present in this case an oral license from an unauthorized tenant in charge of the farm, if acted upon in good faith, as well as the instructions of the company to its servants, if given in good faith, were available. While the evidence offered by the plaintiff below tended to establish all that is necessary to a recovery of full compensation, there is little evidence of such motive as would justify a recovery of punitive damages. The court should have admitted all the evidence offered to show the absence of such motive, or it should have instructed the jury that only compensation should be awarded. j;

Judgments reversed.

Minshall, Williams, Burket, Spear and Davis, JJ., concur.


author: By the Court :

text:
    Olendorf v. The State of Ohio.

      Requirement in indictments of words “against the peace and dignity of the state of Ohio.”

    The constitution requires that all indictments shall conclude with the words “against the peace and dignity of the state of Ohio,” but those words are not required to be at the conclusion of each count of an indictment.
    (Decided January 22, 1901.)
    Error to the Circuit Court of Franklin county. .
    The plaintiff in error was. indicted in Franklin county for the crime of rape upon a girl of nine years. The indictment was in three counts, the first charging rape with her consent, the second rape against her will, and the third assault with intent to rape. The defendant made a motion to quash, and that being overruled, he filed a general demurrer, and that being overruled he entered a plea of not guilty. The case was tried upon the second and third counts, and he was found guilty on the second count and duly sentenced. The circuit court affirmed the judgment, and thereupon he filed his petition in error in this court, seeking to reverse the judgments below.

      Rankin & Rector, for plaintiff in error.
    1. The second count of the indictment, upon which the verdict of guilty rested, is fatally defective, and the court erred in overruling a demurrer to this count.

      a. The second count does not close with the words “against the peace and dignity of the state of Ohio.” Article 4, See. 20> of the constitution of Ohio.
    We find no reported case in Ohio directly decisive of the question. The question was raised in Ridenour
      v. State, 38 Ohio St., 272, but not decided. The opinion, we believe, indicates that the court, had the question been decided, would have held as we insist the law is. At least the court did not intimate that Davis v. State, 19 Ohio St., 270, relied on the defendant in error, is any precedent.
    There can be no doubt, after a review of the authorities given below, that each count of the indictment must conclude with the words required by the constitution.
    We beg the court to examine the following authorities, as directly in point and as conclusive: Constitution of Ohio, Art. 4, Sec. 20; Cox v. State, 34 Am. Rep., 746; Haun v. State, 44 Am. Rep., 707; State v. Soule, 20 Me., 19; State v. Pemberton, 30 Mo., 376; State v. Clevenger, 25 Mo. Appeals, 655; Constitution of Mo., Art. 6, Sec. 38; State v. Lapez, 19 Mo., 254; Early v. Commonwealth, 86 Va., 921; Commonwealth v. Carney, 4 Grattan (Va.), 546; Thompson v. Commonwealth, 20 Gratt. (Va.), 724; Williams v. State, 47 Ark., 230; State v. McClung, 35 W. Va., 28 Bishop’s New Criminal Procedure, Vol. 1, p. 384, Sec. 649; page 386, Sec. 652; State v. Strickland, 10 S. C., 191.

      b. Venue is not alleged in the second count.

      Venue is an essential element of the crime charged.
    The said count alleges that John Olendorf, late of said county (we merely infer that Franklin county is meant), unlawfully made an assault and then and there ravished and carnally knew Annie Cloman. The words “then and there” are not sufficient to lay the venue in Franklin county. They do not and cannot be said to refer, with sufficient definiteness, to Franklin county, simply because it is alleged that the defendant is late of Franklin county. He might have been late of Hamilton county, but in no way would that affect the place of the commission of the crime charged. Knight v. State, 54 Ohio St., 365.
    For a valuable discussion of the law as we claim it, see 10 Am.- ánd Eng. Ency. Law, pp. 566-567; State v. Johnson, 23 S. E., 619.
    0. The second count does not allege the age of the defendant. Hiltabiddle v. State, 35 Ohio St., 52.

      Edward L. Taylor, Jr., prosecuting attorney; Augustus T. Seymour, and Karl T. Webber, for defendant in error.
    1. Is the second count of the indictment fatally defective?
    (a) The first defect in the second count in the indictment relied upon by the defendant in error as a ground for reversing the judgment of the circuit court, is that said count in said indictment does not conclude with the words, “against the peace and dignity of the state of Ohio.”
    Section 20, Art. 4 of the constitution of the state of Ohio, is invoked against this count of the indictment. The indictment in this case does conclude with the words, “against the peace and dignity of the state of Ohio,” as required by said section of the constitution. And every provision of the constitution in this case has been complied with.
    What reason can there be why the court should enlarge upon the provisions of the constitution and read into said section the words, “Count of the indictment” in the place of the word “indictment?” If the framers of the constitution intended that each count of the indictment should conclude in the language “against the peace and dignity of the state of Ohio,” that language would have been used in the construetion of the constitution. And in the absence of the requirement that each count should conclude as contended by plaintiff in error, we can see no reason why the court should so construe that section of the constitution as to make this requirement. Davis v. State, 19 Ohio St., 270; Nicholas v. State, 35 Wis., 308; McGuire v. State, 37 Ala., 161; Rice v. State, 3 Heisk. (Tenn.), 215; State v. Lea, 1 Cold., 175; Stebbins v. State, 31 Tex. Crim. Rep., 294; State v. Travis, 39 La. Ann., 356.
    (6) It is objected by the plaintiff in error that the second count of the indictment did not properly lay the venue of the crime.
    Section 7215, Rev. Stat. of Ohio, the statute of jeofails provides, among other things, that “no indictment shall be deemed invalid, nor shall the trial, judgment or other proceeding be stayed, arrested, or in any manner affected, * * * for the want of an allegation of the time or place of any material-fact when the time and place have once been stated in the indictment.” Evans v. State, 24 Ohio St., 208; State v. S. A. L., 77 Wis., 467.
    (c) The third objection to the second count of the indictment is that the age of the defendant is not alleged therein.
    Under Sec. 6816, Rev. Stat. Ohio, it is necessary to allege the age of the defendant when he has abused a female person with her consent, but it is not necessary when the charge is that the rape was against her will. 1 Wharton Crim. Law, Sec. 572.
   By the Court :

The indictment after the third count concludes with the words, “Contrary to the statute in such case made and provided and against the peace and dignity of the state of Ohio,” but the second count in and of itself does not contain said words, and this omission is claimed to be error, and is the only ground of error deemed worthy of report in this case.

Section 20 of article 4 of the constitution is as follows: “The style of all process shall be, ‘The state of Ohio; all prosecutions shall be carried on in the name and by the authority of the state of Ohio; and all indictments shall conclude, against the peace and dignity of the state of Ohio.’ ”

The requirement is that the indictment shall conclude with the words “against the peace and dignity of the state of Ohio,” and not that each count shall so conclude, and there is no statute requiring that each count shall have such conclusion, and it is therefore not necessary.

The words “against the peace and dignity of the state of Ohio,” at the conclusion of an indictment, mean that the whole indictment, and each count thereof, is “against the peace and dignity of the state of Ohio.” We find no error in the record.

Judgment affirmed.

Shauck, C. J., Minshall, Williams, Burket, Spear and Davis, JJ., concurred.