author: Matthias, J.

text:
    Butler, a Taxpayer, v. Karb, Mayor, et al.

      Municipal corporations — Authority to establish lighting plant, etc. —•Exercise of discretionary power—Court may not interfere, when — Section 3616, General Code—Failure of council to adopt schedule of rates—Unjust discrimination by administrative officers—May be enjoined by courts, when—Municipal law.

    1. Municipalities of thel state are authorized to establish, maintain and operate lighting, power and heating plants and furnish the municipality and the inhabitants thereof light, power and heat. The powers thus conferred are proprietary in their character and in the management and operation of such plant municipal officials are permitted wide discretion. Courts are without authority to interfere therewith upon complaint merely that the capacity of the plant is overtaxed and streets of the municipality are insufficiently lighted by reason of furnishing current to private consumers, and that the rates charged for current are inadequate to meet.the cost of production and transmission thereof.
    2. But where the council of any such municipality fails to adopt and usé a system or schedule of rates for current furnished private consumers as contemplated by Section 3616, General Code, but leaves the matter of rates to the administrative officers of the municipality, who arbitrarily fix and determine the rates in each case, and in so doing unjustly discriminate between citizens in the matter of rates and service, such action constitutes an abuse of corporate power which may be restrained by the court upon suit instituted by the city solicitor, or by a taxpayer if the city solicitor refuses upon written request to bring suit.
    (No. 15110
    Decided July 3, 1917.)
    Error to the Court of Appeals of Franklin county.
    The plaintiff, James M. Butler, instituted this action in the court of common pleas of Franklin county as a taxpayer and resident of the city of Columbus, and on behalf of the city, after having requested the city solicitor to bring the action, who had refused. A general demurrer to the petition 'was sustained, whereupon an amendment to the petition was filed; and subsequently a general demurrer to the petition and amendment thereto was also sustained. Upon a proceeding in error the judgment of the common pleas was affirmed by the court of appeals.
    It is set out in the petition that the defendant George J. Karb is the duly elected, qualified and acting mayor of the city of Columbus, Ohio; that the defendant Samuel A. Kinnear is the duly appointed, qualified and acting director of public service of said city; that the defendant Byron L. Barger is the duly appointed, qualified and acting director of public safety of said city; that said George J. Karb, Samuel A. Kinnear and Byron L. Barger in their respective official capacities constitute the duly qualified and now acting board of control of said city; that the defendant Harry E. Eichhorn is the duly appointed, qualified and acting superintendent of the municipal electric light plant of said city; and that the defendant H. Clayton Cain is the duly elected, qualified and now acting auditor of said city.
    The plaintiff avers in substance that the city of Columbus has constructed and is maintaining and operating a municipal electric light plant to furnish light and power for the city, and also to private consumers; that the city has expended large sums of money to build, establish and enlarge its plant; and that through its duly constituted officers, agent? and employes the city is selling current, for light and power purposes to private consumers.
    The complaint made by plaintiff in his petition and amendment thereto may be briefly stated as follows:
    That the prices charged private consumers are and for more than two years have been very substantially less than the proportionate, fair, just, reasonable, equitable and actual cost of generating and distributing the current and paying the proportionate, fair, just, reasonable, equitable and actual part of the interest on bonds issued and money used for the purpose of building, equipping and enlarging said plant; that said prices are far below any reasonable or actual cost of production, when due and proper distribution of the cost of current is made between, that used for street lighting and municipal purposes and that used for private consumers; and that by reason thereof the taxpayers of the city are paying a part of the cost of current used by private consumers, and -are required to pay substantially more taxes, and that funds of the city have been and are now being misappropriated and misapplied.
    That many streets, avenues, alleys and public places of the city are not now lighted, which for public safety and enjoyment should be lighted, which condition obtains because the plant of the city has not the capacity to furnish the current it now does to private consumers and' also furnish sufficient lights for the streets, avenues, alleys and public places of the city.

      That because of furnishing current to private consumers the machinery and equipment of the plant is greatly overloaded, and burdened far beyond the factor of safety, thus imperiling the public lighting system of the city, by reason of which facts the equipment of the plant is rapidly deteriorating, and depreciating greatly in excess of the standard, and the necessities, of a properly loaded plant.
    That the citizens and residents of the city are discriminated against and are denied uniform treatment; that the city through its officers and agents has at all times arbitrarily furnished and still is arbitrarily furnishing current to some consumers at rates and prices far below the cost thereof, and is abitrarily refusing to furnish at any price current to other persons living in the same locality under substantially the same circumstances and conditions ; that the city has never used and is not now using any system or schedule of rates; and that the prices charged to private consumers have been at no time either uniform or substantially uniform under the same conditions, circumstances or situations, some consumers and citizens having at all times been charged higher prices and rates than other consumers under similar conditions, circumstances and situations, without any reason or excuse therefor.
    The prayer of the petition is that the city and its officers and employes be enjoined from entering into any further contracts for the use of such current for private purposes, and also from entering into any contract for said current at a rate which will not return a fair profit over and above the cost of production and cost of distribution, including a proper interest charge upon a proper actual investment, and including also a proper depreciation of said plant, and especially from entering into any further contract with any person for the use of current for private purposes at any rate or price less or substantially less than the cost of production and the cost of distribution, including a proper interest charge on a proper actual investment, and including also a proper allowance for depreciation of said plant; that a mandatory injunction may issue requiring the city, its officials and employes to terminate contracts heretofore made for the sale of current for private use at less than the proper cost thereof, and to cease furnishing current thereunder; that they be restrained from entering into any contract for the use of current for private purposes until such use will not imperil the lighting system and will not prevent the city from extending advantages of its plant so as to light all the streets, avenues, alleys and public places which now require to be lighted, and especially from furnishing current for private use at a time when the street lighting system is in operation; that by mandatory injunction the city be compelled to extend its lighting system to those parts of the city without lights; that in the event the city be permitted to sell current for private use that the city, its officers and agents be enjoined from discriminating between or among citizens and residents, either as to price or location; and, especially, that the court order and direct the defendants to prepare and submit to the court a legal, proper, just and equitable schedule of rates for current, one that will be substantially uniform, that will not discriminate between consumers, and that will require the consumer to pay the substantial cost of production and transmission of current.

      Mr. James M. Butler and Mr. Max Goldsmith, for plaintiff in error.

      Mr. Henry L. Scarlett, city solicitor, and Mr. Wilber E. Benoy, for defendants in error.
   Matthias, J.

The plaintiff, bringing this action as a taxpayer of the city of Columbus, under favor of Section 4311 et seq., General Code, seeks to enjoin the further performance of certain alleged acts and practices of the city officials named as defendants, which acts and practices he claims constitute an abuse of corporate power and a misapplication of the funds of the municipality. This claimed abuse of power and misapplication of public funds grows out of the maintenance and operation of the municipal electric-light plant. The alleged wrongdoing upon the part of the officers of the city may, we think, with entire fairness, be concisely stated as follows :

First. Furnishing electric current to private consumers which is needed to light the streets and public ways of the city, and at such times as to result in overloading the machinery and equipment of the plant.

Second. Furnishing electric current to private consumers at less than cost.

Third. Discrimination in furnishing current to private consumers and in the rates and terms for such service.

It is asserted by the plaintiff that because of the fact that current is furnished to private consumers many streets, alleys and public places of'the city, which should be lighted for public safety and enjoyment, are not lighted, because the capacity of the plant is insufficient to furnish electric current to private consumers' and also to adequately light the streets and public places of the city, and that by reason of furnishing current to private consumers the machinery and equipment of the city’s plant is at certain hours greatly overloaded and burdened beyond the factor of safety, thus imperiling the whole lighting system of the city.

In this complaint the plaintiff assumes that the absolute duty rests upon the city officials having the care and management of its lighting plant to provide facilities for lighting from its plant all the streets and public places of the city before any current whatever may be furnished to private consumers. Such assumption wholly disregards the plain provisions of the statute containing the grant of power under which the city acts. The authority is specifically conferred upon municipalities to erect and operate electric light plants by Sections 3618 and 3939, General Code.

It may be well to suggest at this point that the issues in this case were made prior to the adoption of a charter by the city of Columbus, and we are necessarily dealing with the conditions as they then ' existed.

The former section (3618) grants power “To establish, maintain and operate municipal lighting, power and heating plants, and to furnish the municipality and the inhabitants thereof with light, power and heat, to procure everything necessary therefor, and to acquire by purchase, lease or otherwise, the necessary lands for such purpose, within and without the municipality.”

The latter section (3939) authorizes the issuance and sale of bonds for certain specified purposes, one of which is “For erecting or purchasing gas works or works for the generation and transmission of electricity, for the supplying of gas or electricity to the corporation and the inhabitants thereof.”

The authority thus conferred is not limited, nor restricted, but is broad and comprehensive. No language is used which suggests, much less requires, that all streets and public ways of a municipality shall be lighted by current from the city’s plant before current may be furnished to the inhabitants of the city for private consumption. Neither use is given preference over the other, and hence no more can it be said that the plant is overburdened by private use than by street lighting, nor can it be required that the former shall be entirely discontinued so that the latter may be enlarged and extended. As stated in 4 McQuillin on Municipal Corporations, Section 1799: “It cannot be successfully contended that so long as portions of the city remain unlighted there cannot be an excess of electricity which can be disposed of by the city to private citizens, where the city operates its own electric light plant, where no fraud is alleged on the part of the municipality.”

Under the provisions of Section 3809, General Code, the city may make a contract with a private company for lighting the streets and public places of the municipality.

A consideration of the provisions of the several sections of the statute above cited would seem to warrant the conclusion that a city may provide by private contract for lighting the streets and public places in one portion of the city and furnish the current from its own electric light plant for the public and private lighting in other portions of the city. It can readily be seen that conditions might be such as to make that plan expedient and economical.

The manner in which the authority conferred by statute is to be exercised is left to the discretion of the officials of the municipality. The general principle is well established that in. the absence of fraud or gross abuse of discretion the courts will not interfere with the discharge of such duties. It must at least appear that the public officers are transcending their powers or withholding some clear right, or perpetrating or threatening to commit a wrong, before the power of the courts may be invoked. Surely the court cannot be called upon to determine the extent to which current should be used for street lighting and what portion of the current generated may properly be furnished private consumers, nor to ascertain and fix by judicial decree the precise burden that may be placed upon the plant. A mere departure from the exercise of sound judgment does not warrant the interposition of the court and the control and guidance of its mandate.

The rule to be applied in actions such as this has been stated frequently, but probably nowhere better than in the opinion of the court in the case of Dailey v. New Haven, 60 Conn., 314, 319, where it is said: “With the exercise of discretionary powers courts, rarely and only for grave reasons, interfere. These grave reasons are found only where fraud, corruption, improper motives or influences, plain disregard of duty, gross abuse of power or violation of law, enter into and characterize the result. Difference in opinion or judgment is never a sufficient ground for interference.”

No doubt all will agree that poorly-lighted streets are a serious inconvenience to the people and materially increase the dangers of travel, and that a saving of expense by inadequately lighting the streets of a municipality is a mistaken and shortsighted economical policy. The court may not approve the policy pursued or the method or manner of operation of the city’s utility, but so long as the officials to whom the law has delegated administrative duties involving the exercise of discretion are acting within the powers conferred, and it does not appear that their conduct is fraudulent or in bad faith, their acts are not subject to judicial supervision and control.

We regard the principle to be well settled that the private and proprietary powers conferred upon a municipal corporation are to be construed with liberality to the end that the purpose of the grant may be fully accomplished. As we have' seen, the powers so conferred are broad and comprehensive, no terms being used which in the least degree circumscribe or restrict the actions of the city officials in the management and operation of its utilities. Much is left to their judgment and discretion, as indeed seems necessary; for successful and satisfactory management and operation of 3- city’s utilities could not be accomplished if they were hedged about and hampered by detailed, minute and precise regulations, directions or restrictions, either legislative or judicial. The principle to be here applied is well stated by Pond in his work on Public Utilities, Section 11, as follows:

“In its private commercial capacity while acting primarily as a business concern, the powers conferred on a municipal corporation are for its own special benefit and advantage. * * * Recognizing this to be the principal object in the creation of such corporations and the sole purpose of endowing them with such commercial and proprietary powers as permit them and their’ citizens to enjoy the benefits of municipal public utilities, the courts permit and favor the exercise of the fullest discretion in the enjoyment and administration of such powers which are consistent with the general object of their grant and the best interests of all parties concerned who are intended to be benefited by such advantages.

“The discretion of municipal corporations in the exercise of their powers is as wide as that enjoyed by the general government and is to be exercised in accordance with the judgment of the authorities in charge of the municipal corporation as to the necessity or expediency of each particular subject when it arises.”

The allegations of the petition and amendment thereto with reference to the inadequacy of the prices charged for current sold for private consumption are in very broad and general terms, the substance of the complaint in that respect being that the prices charged are too low to meet the proportionate cost of generation and transmission of current furnished private consumers, thereby entailing a loss which the taxpayers of the city are required to meet.

We think it must be conceded that the city, acting in a proprietary capacity, may exercise its powers as would an individual or private corporation. It may be that for a time the business will not be remunerative at the rates charged, yet with proper management the business may develop to a point where it will even yield a profit to the city and therefore result to “its own special benefit and advantage.”

It does not appear that the present rates are lower than are charged by a competitor, nor is it disclosed that a higher rate could be procured, nor are there any averments in the petition from which it may be inferred that in the selling of electric current at prices inadequate to meet the cost of production the officials of the city have been actuated by fraudulent or improper motives.

It is quite apparent from the pleadings that the city’s plant is used primarily for the purpose of lighting the streets and public ways of the city, the furnishing of light to private consumers being only incidental, and that at least a portion of such private service is during the day. The position of the city officials seems to be that a low price is justified in order to develop a day load and thus balance the machinery of the plant.

A more serious question is presented by the allegations of the petition and amendment thereto with reference to discrimination by those in charge of the plant in furnishing current to private consumers; and, particularly, as to the failure to have or use any system or schedule of rates for such service, and arbitrarily fixing the rate in each case. The charge made by the plaintiff in this regard is in substance that the city has never used any system or schedule of rates of any kind whatsoever either for light or power for private purposes, and that prices and rates for said current have been at no time uniform, or substantially so, under like conditions, situations and circumstances, but have been widely different and varying.

The statute conferring power upon municipalities to establish, maintain and operate municipal lighting plans, under which the city of Columbus was acting at the time this suit was instituted, and theretofore, contains no provision whatever with reference to rates or charges for current furnished to private consumers, nor does it designate any officer or body whose duty it shall be to prescribe rates for such service, but under the provisions of Section 3616, General Code, the council of the municipality is authorized to provide by ordinance or resolution for the exercise of the powers enumerated in the chapter of which that section is a part, one of which powers is the operation of an electric light plant. The authority to adopt rates for current which the municipality was empowered to furnish “the inhabitants thereof” was clearly implied, and that duty devolved upon the municipal council. It follows that the fixing of rates for current from the city’s plant by other officials or agents or employes of-the city was unwarranted.

It is averred by the plaintiff that these officers having assumed such power and' authority in the absence of a system or schedule of rates duly and properly adopted by council are using that power to discriminate between citizens with reference to furnishing the product of the city’s plant, and particularly as to rates charged therefor. That such discrimination constitutes an abuse of power there can be no question. That neither public nor private corporations may discriminate between, members of the public with reference to rates and terms of service does not longer admit of controversy. This wholesome rule, long in force, has had. frequent application, particularly to common carriers and utility companies. A municipality operating a utility is not exempt therefrom. Acting in a proprietary capacity, we have seen, it should have the freedom of action of a private utility corporation, but it is also subject to the same restrictions as to practices of discrimination in rates and service.

But it is urged that the plaintiff is not a proper party to make such complaint, and that it not appearing that he suffers any injury by reason of the wrongful practices charged, he cannot maintain the action. We think that contention is unsound. The solicitor could maintain the action under authority of the provisions of Section 4311, General Code. In such a proceeding he represents the public. If upon the request of a taxpayer the city solicitor refuses to institute the action, the taxpayer may do so by virtue of the provisions of Section 4314, General Code. He then represents the public just as would the solicitor had he exercised the power conferred upon him and brought the suit. These sections are remedial in their character and are therefore to be liberally construed and effectively applied in order to safeguard the rights of the municipality, the obvious purpose of their enactment.

For the reasons stated we are of opinion that the petition and amendment thereto state a cause of action in the respect indicated, and therefore that the court of common pleas committed error in sustaining the demurrer and the court of appeals erred in affirming that judgment.

Judgment reversed.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The State, ex rel. Knecht, v. Hall, Superintendent of Banks.

      Deputy superintendent of banks — Approval of pay by common pleas court—In advance of services — Requirement of Section 742-4, General Code—Mandamus.

    (No. 15047
    Decided July 3, 1917.)
    In Mandamus.

      Mr. Hal C. DeRan and Messrs. McGhee, Davis & Boulger, for relator.

      Mr. John M. Elliott and Mr. H. S. Ballard, for defendant.
   By the Court.

The relator, George W. Knecht, in his petition filed in this court asks that a writ of mandamus be issued commanding defendant as superintendent of banks in charge of and in possession of the assets of the Osborn Bank of Osborn to pay the relator out of the assets of said bank the sum of $280. On June 26, 1913, the superintendent of banks appointed relator a special deputy superintendent of banks, to assist him, as agent, in the liquidation and distribution of the assets of said Osborn Bank. The relator qualified as such special deputy superintendent of banks and his compensation was fixed by the superintendent of banks at $280 per month, payable out of the assets of said bank, and such compensation in the amount so fixed was approved by the common pleas court of Greene county, Ohio, the county in which the office of said bank was located. Relator upon his appointment and qualification entered upon the discharge of his duties and continued to discharge the duties devolving upon him until the first day of January, 1915, and was paid each month, except for the month of December, 1914, the sum of $280. The relator demanded from the superintendent of banks the payment of said sum, which the latter refused and still refuses to pay. A demurrer was filed to the petition, and the only question presented to this court is whether the, approval by the common pleas court, at the time the compensation was fixed by the superintendent of banks and before the relator entered upon his duties, was a compliance with the provisions of Section 742-4, General Code, as it stood prior to the amendment of May 20, 1915 (106 O. L., 360). The section prior to amendment read:

“Sec. 742-4. The expenses incurred by the superintendent of banks in the liquidation of any bank in accordance with the provisions of this act, shall include the expenses of deputy or assistants, clerks and examiners employed in such liquidation, together with reasonable attorney fees for counsel employed by said superintendent of banks in the course of such liquidation. Such compensation of counsel, of deputies or assistants, clerks, and examiners in the liquidation of any corporation, company, society or association, and all expenses of supervision and liquidation shall be fixed by the superintendent of banks, subject to the approval of the common pleas court of the county in which the office of such corporation, company, society or association was located, on notice to such corporation, company, society or association. The expense of such liquidation shall be paid out of the property of such corporation, company, society or association in the hands of said superintendent of banks, and such expenses shall be a valid charge against the property in the hands of said superintendent of banks and shall be paid first, in the order of priority.”

We do not think that the approval of the compensation of a special deputy superintendent of banks by the common pleas court in advance of the rendition of services meets the requirement of this statute. Before the writ can issue in the instant case it must appear that the common pleas court approved the compensation of relator after the services were rendered by him.

Demurrer sustained.

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


text:
    Gray v. Gordon, et al.

      Fraudulent representations — Sale of moving picture theatre — Value of property—Weekly profits—Evidence—Charge to jury — Measure of damages — Pendency of counter suit—Contracts— Court procedure.

    (No. 15248
    Decided July 3, 1917.)
    Error to the Court of Appeals of Cuyahoga county.
    The facts are stated in the opinion.

      Messrs. Howell, Roberts & Duncan, for plaintiff in error.

      Messrs. Mathews, Orgill & Maschke, for defendant in error Arthur M. Gordon.

      Messrs. Klein & Harris, for defendant in error Isadore Horn.

      Mr. S. J. Deutsch and Mr. E. J. Thobaben, for defendant in error L. C. Hoover.
   By the Court.

Roman H. Gray, the plaintiff in error, brought suit in the court of common pleas of Cuyahoga county against the defendants in error to recover damages claimed to have been sustained by him in consequence of certain false and fraudulent representations made to him by the defendants, whereby they induced him to purchase a moving picture theatre, known as the “Majestic,” in the city of Cleveland.

The petition alleges that the defendants Horn and Hoover were a partnership engaged in the business of conducting a moving picture theatre in the Majestic Building, and that they employed the defendant Gordon as their agent and broker, for the purpose of selling to the plaintiff their theatre business; that the negotiations between the parties began in the month of November, 1914; that during the period covered by the negotiations the false and fraudulent representations were made; that by reason thereof, relying on them, and while ignorant of their falsity, the plaintiff entered into a contract with the defendants, by which he purchased from Horn and Hoover the said business; and that pursuant to the contract of purchase he paid to the defendants the sum of $12,500 as the purchase price, and received from Horn and Hoover, on the 24th day of December, 1914, a bill of sale conveying to him the theatre business. The different steps in the negotiations and the alleged false and fraudulent representations are set out in detail in the petition.

The material representations charged to have been made to the injury of the plaintiff were to the effect that the theatre business had been producing, and was then producing, a net profit, over and above all expenses, of $200, and more, a week, and that the theatre building was in substantial condition and repair, with a seating capacity of 1300.

The petition alleges that all these representations were false, were known to be so by defendants at the time they were made, and were made for the purpose of inducing the plaintiff to make the purchase aforesaid. The petition alleged that the property was not worth to exceed $1,000 at that time.

Separate answers were filed by the defendants, in which an issue was made by each as to the allegations of false and fraudulent representations and the damage to the plaintiff thereby. On the trial of the case to a jury, at the close of the plaintiff’s case, a motion was made to direct a verdict in favor of the defendant Gordon, which was renewed at the close of all the testimony. These motions were overruled. The jury returned a verdict for the plaintiff for the sum of $14,750.

On the hearing of the motion for a new trial the plaintiff remitted “all of said verdict in excess of $14,000.” The motion was overruled and judgment entered for the plaintiff. On error this judgment was reversed by the court of appeals, and from the entry in that court it appears that the judgment was reversed “for error in the admission of evidence offered by the plaintiff in the Court of Common Pleas, without limiting its application to the false representations relied upon for recovery; in refusing to instruct the jury as requested by defendant in error in special request No. 1 before argument; and for error in general charge.”

The jury having found the issues of fact in favor of the plaintiff, it was the duty of the court of appeals to weigh the testimony, and it appears from the opinion of that court, which is printed in the briefs of counsel, that in the performance of this duty the court was far from satisfied upon that matter, although it did not feel justified to reverse the judgment on the ground that it was against the weight of the evidence. We are not here concerned with the weight of the evidence. Considerable testimony was offered with reference to the state of the business and the amount of receipts from it before and after the sale of the theatre to Gray.

The defendants objected to the admission of evidence touching the receipts for a considerable period after the purchase and after the enterprise had passed under the control of Gray. In overruling that objection it appears from the record that the trial court made some suggestion that it would, at the proper time, instruct the jury as to the proper application of that testimony.

The matter in dispute was the value of the theatre at the time of the purchase. It is perfectly clear that this value could not be ascertained by proving the receipts of the theatre during the period subsequent to the time of the sale. All of the conditions may have changed, the circumstances may have been different, the management may have been different, the state of competition. in the neighborhood may have been different. Now, if testimony should be produced showing that all of the circumstances surrounding the enterprise after the sale were substantially the same as be-, fore, testimony concerning the receipts afterwards would be competent as throwing light upon the issue as to fraudulent representations made by the defendants concerning the receipts at the time of the sale. But it was clearly the duty of the court, his attention having been challenged to the matter, to instruct the jury that any testimony touching the value of the property, after Gray had come into the control and management of it, could not be considered by them in estimating the actual value at the time of the sale, but should be limited to the light it might throw on the issue of false representations made by the defendants to induce plaintiff to make the purchase. Even if it be conceded that sufficient grounds were laid by the plaintiff, as above indicated, to make the testimony competent, it should have been limited by the court in its instructions to the jury as above stated. This was not done and in the omission to do so the court materially erred to the prejudice of the defendants.

Testimony was admitted which showed that Gordon, after the commencement of Gray’s suit for fraud, had begun suits on a certain note and mortgage made by Gray in the transaction. On the trial the defendant Gordon requested the court to charge the jury in writing before the argument as follows: “I say to you that the fact, if you find it to be a fact, that the defendant, Arthur M. Gordon, has taken judgment against the plaintiff on cognovit notes, or has a suit pending against the plaintiff, in foreclosure, has nothing to do with the merits of this case and is not to be considered by you in any manner as reflecting upon the claims made by plaintiff against said defendant.”

In view of the evidence introduced we think it clear that the defendant was entitled to have this charge given before the argument, as requested. In the general charge the matter requested was substantially given to the jury with this modification in the language, “has nothing to do with the merits of the case so far as the question of fraud is concerned.” The pendency of the suit in question was not proper to be considered by the jury touching the merits of this case, and the general charge did not cure the error of the court in depriving the defendant of his substantial legal right.

As stated above, the court of appeals included in its entry, as ground for reversing the judgment of the court of common pleas, “error in general charge.”

Counsel for both parties agree that the essential matter to which this finding referred was the part of the charge concerning the measure of damages. It is as follows: “You will award him [plaintiff] as damages so far as shown by the evidence the difference, if any, between the actual value of the property and business of the Majestic theatre at the time of the sale and the value of the property if it had been at the time of the sale as it was represented to be.”

We think this charge was correct. It is in accordance with a long-established rule based upon reason and authority, and has recently been approved by this court in Elder et al. v. Shoffstall et al., 90 Ohio St., 265.

As already indicated, the court of appeals, upon whom rested the duty of weighing the evidence, several times indicated in its opinion its inability to account for the verdict of the jury in the light of the record. The verdict was for $14,750. No reason appears on the record why the plaintiff .remitted $750 of the verdict. The price agreed to be paid for the theatre was $12,500. The sale was made December 28, 1914. The verdict of the jury was rendered five months thereafter, June 1, 1915.

We think it clear that the court of appeals was justified in coming to the conclusion that the errors of law must have resulted in prejudice to the defendants, and its judgment will be affirmed.

Judgment affirmed.

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


text:
    Burke v. The Michigan Central Railroad Co.

      Negligence — Failure to support averments of petition — Duty to direct verdict-—At conclusion of plaintiff’s evidence, when — Failure to properly place push-pole — Duty to look for obstruction on railway tracks-—Interstate or intrastate employment — Interrogatories to pleading — Answers thereto determinative, when.

    (No. 15339
    Decided July 3, 1917.)
    Error to the Court of Appeals of Lucas county.
    The original action out of which this proceeding in error grows was brought by William Burke in the common pleas court of Lucas county, to recover from The Michigan Central Railroad Company damages for personal injuries suffered by him while in the employ of that company.
    For a first cause of action the plaintiff averred facts constituting a cause of action under the Employers’ Liability Act of Ohio, and for a second cause of action adopted each and all of the allegations in his first cause of action and further averred that the defendant was engaged and the plaintiff was employed in interstate commerce.
    The petition averred that the defendant was negligent in placing a freight car too close to the passing track, so that one end of a push-pole lying athwart the pilot of the engine .on which the plaintiff was riding came in contact with a stirrup on a box car, causing the other end to fly up and strike the plaintiff on the back of the head, producing the injuries complained of; that the defendant negligently allowed a young and inexperienced fireman to run its locomotive; that the locomotive was negligently operated; and that the engineer in charge and the fireman running said locomotive failed to use ordinary care to observe the projecting corner of the box car, and negligently continued to move the locomotive past the car, after plaintiff had taken his post on the pilot, thereby placing him in peril which he could not escape.
    The defendant for answer to the petition admitted its corporate capacity, and admitted that at the time named in plaintiff’s petition it was engaged and the plaintiff was employed in interstate commerce. It admitted that the plaintiff, while riding upon the front of the switch engine working in its yard, was struck and injufed, but denied the character and extent of the injuries as pleaded in the petition, and particularly denied each and evety allegation of negligence therein charged against it; and, further answering, averred that at the time plaintiff received his injuries he was guilty of negligence which contributed directly and proximately to cause his injury, in this, to-wit, that as head switchman the plaintiff at the time had full charge and control of the push-pole, well knowing that the defendant had provided a safe place and facilities for carrying this push-pole at the side of the tender to said engine, where the rules of the defendant, with which the plaintiff was familiar, required this push-pole to be carried when not in use; that plaintiff voluntarily, and without any reason or necessity therefor, placed this push-pole across the front of the engine, where same was apt to and did jostle to one side and strike the car standing upon the sidetrack, and that, without the knowledge and direction of the defendant, plaintiff voluntarily and without reason or necessity therefor rode upon the front of the engine, in front of the push-pole, when the engine was moving, and was thereby struck and injured. And the defendant further averred that the plaintiff in placing the push-pole across the front of the engine, and in riding in front thereof upon the engine, assumed the risk of being injured thereby, and that the plaintiff’s, injuries resulted'from the hazards and dangers incident to his duties, which he assumed as part of his contract of employment.
    The plaintiff in reply denied each and every allegation in the answer, except such as admit or deny the allegations set forth in plaintiff’s petition in his first and in his second cause of-action, respectively; and to this reply plaintiff annexed certain interrogatories, numbered one to five, which he asked that defendant be required to answer. The interrogatories and answers are as follows:
    Interrogatory One.
    What, if any, record, is in the possession or under the control of the defendant, made and kept in the regular and ordinary course of defendant’s business, for the purpose of showing, among other things, and purporting to show, among other things, the description, origin and destination of shipments, which plaintiff and the said switching crew were engaged in handling at the time plaintiff was injured ?
    Answer.
    I have in my possession and subject under my control, a record showing, among other things, the description, origin and destination of shipments which the plaintiff and the said switching crew were engaged in handling at the time plaintiff was injured.
    Interrogatory Two.
    Of what do such records consist ?
    Answer.
    Such records consist of On Hand Yard Reports, Shipping Orders and copies of Way Bills.
    Interrogatory Three.
    In whose possession, or under whose control or custody are such records ?

      Answer.
    Such records are in my possession and subject to my control, other than the On Hand Yard Reports, and such reports are in the custody and control of General Yard Master, E. Holst.
    Interrogatory Four.
    Are you able, by referring to such records, to designate and describe what, if any, of the shipments referred to in interrogatory one, originated at or were destined for some point or points outside the State of Ohio?
    Answer.
    Yes.
    ' Interrogatory Five.
    If you have answered the last question in the affirmative, please designate and describe such interstate shipments, if any.
    Answer.
    Two of said cars were to be loaded and destined to Lawton, Michigan; one of said cars was destined for Monroe, Michigan, and two to Pittsburg, Pennsylvania.
    At the close of plaintiff’s evidence, the defendant moved the court to direct the jury to return a verdict in favor of the defendant, which motion was sustained, to which plaintiff duly excepted.
    Motion for new trial was filed and overruled, and error prosecuted in the court of appeals of Lucas county. That court affirmed the judgment of the trial court, and this proceeding in error is prosecuted in this court to reverse the judgment of the common pleas court and the judgment of the court of appeals affirming the same.

      Mr. Ben W. Johnson and Mr. James Nye, for plaintiff in error.

      Messrs. Potter & Carroll, for defendant in error.
   By the Court.

No evidence was introduced by the plaintiff tending to prove the defendant guilty of any of the acts of negligence charged in the petition. On the contrary, the evidence offered on behalf of the plaintiff, including his own testimony, shows conclusively that this box car was in such a position upon the siding that the engine would have passed it in safety had the push-pole not projected far enough from the side of the engine to engage the stirrup on the car; that after the push-pole came in contact with the car it pulled it some distance in the direction in which the engine was going, before the opposite end of the pole became loosened from the engine and flew forward and struck the plaintiff; that the fireman was experienced and competent to operate this engine; that he was moving it in a careful and prudent manner, at a speed not to exceed four or five miles an hour; that at all times he had the engine under perfect control; that immediately upon the alarm being given he stopped the engine within a distance of four- or five feet; that he did not know the push-pole was across the pilot of the engine, and could not see it from his position on the right-hand side of the cab; that by reason of his view being obstructed by the front part of the engine he did not have equal opportunity with the plaintiff to observe the location of the box car as the engine neared it; that the engineer was on the fireman’s side of the cab; that he did not know of the location of the push-pole, but perhaps might have seen it bad he looked downward in its direction; that his duty required him to keep a vigilant watch ahead, and not downward in the direction of the push-pole; that at the time of the accident, he was in the strict performance of his duty; that he saw the box car in such position upon the side track that the engine would pass it in safety; that he did not see the push-pole until the accident happened; that the plaintiff was the only person on the forward part of the engine that had any knowledge of the location of this push-pole; that he had himself placed it athwart the pilot of the engine, instead of on the hooks that had been placed at the side of the tender for the purpose of carrying this pole with safety to all the employes connected with the operation of this engine; and that the plaintiff had placed this push-pole in this position for his own convenience, and had voluntarily taken a seat upon the pilot of the engine, directly ahead of it.

In regard to this last particular, plaintiff testified that he had so placed himself upon this part of the engine to look out for anything that was wrong, “switches wrong or any obstruction on the track or, if the cars wasn’t clear we were to keep our eyes open.”

“Q. And that was your duty, of course, in doing that? A. Yes.

“Q. As you went north on the track you could see the car on the left, of course? A. Yes.

“Q. That was one purpose for which you were standing on the front there, to look out for obstructions? A. Yes.

“Q. And as you went north that car was in the clear; at least you concluded it was in the clear, didn’t you? A. Yes.”

Again, on page 121 of the record:

“Q. You were satisfied that there was a safe clearance? A. I was satisfied that there was a safe clearance.”

It clearly appears from the testimony of the plaintiff himself that if this box car were not in such position upon the sidetrack as to permit the engine to pass it in safety, it was his duty to observe that fact and signal the engineer to stop before coming in contact with it. Having placed the push-pole across the pilot of the engine, and being ¡the only employe of the company upon the front part of the engine that had knowledge of the position of the push-pole, it was his duty to himself and his fellow employes to see that the push-pole remained in such position that it would not come in contact with cars on the adjacent track and cause injury to himself or his fellow workmen.

It may have been the custom of the switchmen employed in the operation of this engine to place this push-pole athwart the pilot for their own convenience, but the company had provided a safe place for it to be carried upon the engine, and it was the switchman’s duty to place it on the hooks provided for that purpose.

Regardless, however, of whether the plaintiff was guilty of any negligence directly contributing to or causing the accident, there is absolutely no evidence tending to prove negligence on the part of the railway company.

Where there is no evidence upon a material issue joined by the pleadings it is the duty of the court to instruct a verdict. Ellis & Morton v. Ohio Life Insurance & Trust Co., 4 Ohio St., 628; Village of Leipsic v. Gerdeman, 68 Ohio St., 1; City of Dayton v. Glaser, 76 Ohio St., 471, and Gibbs v. Village of Girard, 88 Ohio St., 34.

The same principle is involved in the following cases: Cornell v. Morrison, 87 Ohio St., 215, and Cincinnati Gas & Electric Co. v. Archdeacon, Admr., 80 Ohio St., 27.

The plaintiff in his second cause of action averred that the defendant was engaged and that he was employed in interstate commerce. The first cause of action contains no averments with reference to the character of the plaintiff’s employment or the nature of the defendant’s business. The defendant admitted the allegations in the second cause of action, that the defendant was engaged and that the plaintiff was employed in interstate commerce. There was therefore no issue joined by the pleadings as to the nature of his employment or the character of the defendant’s business. The admission by the defendant of the averments in plaintiff’s petition dispensed with proof of these averments. If any proof were necessary, the answers to the interrogatories propounded by the plaintiff would, at least in the absence of conflicting testimony, be sufficient to disclose the character of the employment and the nature of the defendant’s business.

It is of no importance, however, in this case, whether the plaintiff was employed in intrastate or interstate commerce. There was no evidence offered by the plaintiff tending to support the averments of negligence in his petition, and for that reason the judgment of the court of appeals must be affirmed. . .

Judgment affirmed.

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


author: Donahue, J.

text:
    The State, ex rel. The Emery-Thompson Machinery & Supply Co. et al., v. Jones et al., Judges.

      Writ of prohibition,—Does not lie to prohibit court of appeals— From- determining its own jurisdiction, when.

    A writ of prohibition will not issue to the court of appeals prohibiting that court from determining its own jurisdiction in cases wherein jurisdiction of the subject-matter in an original action, or on appeal or in error proceeding, has been conferred upon that court by the constitution of this state.
    (No. 15661
    Decided July 3, 1917.)
    In Prohibition.
    On the 15th day of June, 1917, the relators filed a petition in this court, praying for a writ of prohibition directed to Oliver B. Jones, Frank M. Gorman, and Francis M. Hamilton, judges of the court of appeals in the first appellate district of the state of Ohio, prohibiting them from proceeding to hear or from entertaining jurisdiction in error in case No. 1094, or jurisdiction on appeal in case No. 1106, on the docket of said court of appeals.
    The petition states the official character of the defendants, and avers that on the 12th day of June, 1916, Vincent H. Beckman, trustee, filed a petition in the court of common pleas of Hamilton county, Ohio, against The F. W. Niebling Company, to foreclose a mortgage given to secure a large amount of bonds; that a receiver was appointed, with authority to conduct the business of The F. W. Niebling Company pending the foreclosure proceedings; that judgment was entered in said cause in the sum of $93,957.70; that an order of sale issued, and the sale made in pursuance of such order was confirmed on the 12th day of January, 1917; that on the 17th day of February, 1917, The Emery-Thompson Machinery & Supply Company filed its motion in said cause to set aside the confirmation of the sale and decree of distribution, which motion was sustained at the subsequent term of the common pleas court, the former receiver discharged, and another receiver appointed; that thereupon the former receiver, individually, and as a receiver for The F. W. Niebling Company, excepted; that Vincent H. Beckman, as trustee for the bondholders, and as trustee for certain of said bondholders for whom he purchased the property of said company, gave notice of his intention to appeal the cause to the court of appeals of Hamilton county; that the said Vincent H. Beckman, as trustee of The F. W. Niebling Company and as trustee for certain bondholders of that company, filed a petition in error in the court of appeals in and for the first appellate district of the state of Ohio against The Emery-Thompson Machinery & Supply Co., and others, being cause No. 1094 on the docket of said court, to review the order of the common pleas court setting aside the decree of confirmation and distribution; that on the 14th day of April, 1917, the court of appeals on application of the plaintiff in error entered an order staying the judgment of the court of common pleas setting aside the sale and decree of confirmation and distribution and appointing Edward H. Dornette receiver, and ordered said Dornette, receiver, to restore to Vincent H. Beckman, trustee, all of said property; that on the 16th day of April, 1917, The Emery-Thompson Machinery & Supply Co., Edward H. Dornette, receiver of The F. W. Niebling Company, Katherine E. Hart, and Mrs. Ben Stein, filed motions to dismiss the petition in error and to set aside the entry made by the court of appeals staying execution of the judgment and order of the court of common pleas and directing the receiver to restore to Vincent H. Beckman, trustee, the property of The F. W. Niebling Company, for the reason that the court of appeals had no jurisdiction to review either by petition in error or on appeal the order of the court of common pleas complained of by the plaintiffs in error; and that on consideration thereof the court of appeals found said motions and each of them not well taken and overruled the same, to which ruling exceptions were noted.
    The petition further avers that on May 8, 1917, Vincent H. Beckman, as trustee of The F. W. Niebling Company, and Vincent H. Beckman, as trustee for certain bondholders of that company, for whom he purchased the property at the sale held by the sheriff of Hamilton county on January 4, 1917, gave an appeal bond and filed a transcript of the docket and journal entries and the original papers in said cause in the court of appeals of the first appellate district of the state of Ohio, the same being docketed in that court as No. 1106; and that on the 10th day of May, 1917, The Emery-Thompson Machinery & Suppfy Co., Edward H. Dornette, receiver of The F. W. Niebling Co., Katherine E. ■ Hart, and Mrs. Ben Stein, having been made parties, filed their motion to dismiss the appeal, for the reason that the court had no jurisdiction thereof, which motion was overruled by the court of appeals and exceptions noted.
    And this petition is filed in this court, praying that a writ of prohibition issue, prohibiting the court of appeals from proceeding to hear or further entertain jurisdiction of said appeal or error proceedings.
    To this petition the defendants filed a general demurrer. By agreement of counsel, this cause is submitted upon this demurrer and upon its merits.

      Messrs. Galvin & Bauer; Messrs. Hackett, Yeatman & Harris and Mr. Alfred B. Benedict, for relators.

      Messrs. Dolle, Taylor, O’Donnell & Geisler, for defendants.
   Donahue, J.

This court held in the case, of State, ex rel. Nolan, v. ClenDening, 93 Ohio St., 264, that “The writ of prohibition is a high prerogative writ, to be used with great caution in the furtherance of justice and only where there is no other regular, ordinary and adequate remedy.”

To the same effect is the decision of this court in the case of State, ex rel. Garrison, v. Brough, 94 Ohio St., 115.

The jurisdiction of the court of appeals is conferred by the Constitution of the state of Ohio, as amended September 3, 1912. (Cincinnati Poly clinic v. Balch, 92 Ohio St, 415.) Therefore any question relating to the jurisdiction of that court involves a question arising under the constitution of this state, and in all such cases error may be prosecuted in the supreme court of this state. The relators in this case, therefore, have a regular, ordinary and adequate remedy at law.

It was further held by this court in the case of State, ex rel. Barbee, Exr., v. Allen, ante, 10, that where a court has jurisdiction of the subject-matter of a cause, the writ of prohibition cannot be made to serve the-purpose of a writ of error to correct mistakes of a lower court in deciding questions of law within its jurisdiction. In that case it was sought by writ of prohibition to prohibit the probate court of Fayette county from further proceedings in the matter of the probate of a will and settlement of an estate, after that court had found and determined that it had jurisdiction and admitted the will to probate.

This court held in that case that the probate court is vested by’the constitution with jurisdiction in probate and testamentary matters, and is recognized as competent to decide on its own jurisdiction and to exercise it to final judgment.

This is also held in the case, of Shroyer, Gdn., v. Richmond et al., 16 Ohio St, 455; The C., S. & C. Rd. Co. v. Village of Belle Centre, 48 Ohio St., 273; Crawford, Admr., v. Zeigler et al., 84 Ohio St, 224, and Wilberding, Admr., v. Miller et al., 90 Ohio St., 28.

If probate courts are competent to decide on their own jurisdiction and to exercise that jurisdiction to final judgment, certainly the same must be true with reference to the courts of appeals in this state, which, by the provisions of the Constitution of Ohio, are clothed with final jurisdiction in all cases excepting those involving questions arising under the Constitution of the United States or the state of Ohio, felony cases, cases of which it has original jurisdiction, cases of public or great general interest, and cases where the judges of the court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state.

The constitution of this state-vests in the court of appeals appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law.

It is admitted in this case that the cause attempted to be appealed from the common pleas to the court of appeals is a chancery case. It is also admitted that a petition in error has been filed in the court of appeals to review the judgment of the court of common pleas in the same case. Therefore, under the plain provisions of the Constitution, the court of appeals has jurisdiction of the subject-matter of both the appeal and error proceedings; and it is competent to pass upon its own jurisdiction. If it makes a mistake in that regard, the remedy is by error, and not by writ of prohibition ; for this high prerogative writ will not be used either to deprive the court of appeals of its authority to determine its own jurisdiction, or to correct any errors or mistakes that court may make affecting its jurisdiction in any cause.

This court has not considered, and will not consider, in this proceeding whether the appellate jurisdiction of the court has been properly invoked by appeal or error proceedings, or whether such appeal or error proceedings áre prematurely brought, or whether the appeal or error proceedings are directed to a judgment or final order, or any other of the questions presented by the relators’ petition touching the question of the jurisdiction of the court of appeals. If the relators desire to make such questions in this court, it can be done only in the regular and ordinary way.

The demurrer to the petition is sustained, and the petition of the relators dismissed.

Writ refused.

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


author: Jones, J.

text:
    Raudabaugh v. The State of Ohio. Palmer et al. v. The State of Ohio.

      Constitutional law—Suits against the state — Section 16, Article 1, Constitution, 1912, not self-executing — Legislative authority prerequisite to right to sue.

    1. A state is not subject to suit in its own courts without its'express consent.
    2. The provision of the Ohio Constitution, Article I, Section 16, as amended September 3, 1912, that “Suits may be brought against the state, in such courts and in such manner, as may be provided by law,” is not self-executing; and statutory authority is required as a prerequisite to the -bringing of suits against the state.
    (Nos. 15531 and 15532
    Decided July 3, 1917.)
    Error to the Court of Appeals of Mercer county.
    In the court of common pleas of Mercer county the plaintiffs, I. F. Raudabaugh, • Albert Palmer and others, filed their actions for damages against the State of Ohio, alleging that the state, through its public officers, so negligently constructed and maintained the Mercer County Reservoir as to cause the lands of the plaintiffs to be flooded.
    The state, through its attorney general, moved to quash the service against the state, for the reason that process against the state was not authorized by law. The common pleas court sustained the motion to quash, and dismissed the petitions. This judgment was affirmed by the court of appeals, and error is now prosecuted to this court.

      Mr. I. F. Raudabaugh; Mr. John G. Romer and Mr. S. S. Scranton, for plaintiffs in error.

      Mr. Joseph McGhee, attorney general, and Mr. John F. Kramer, for defendant in error.
   Jones, J.

Section 16, Article I, of the State Constitution, as amended September 3, 1912, is as follows : “All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by lazo.” The italicized portion of this section was the amendment thereto adopted on September 3, 1912. No legislative action has been taken authorizing suits against the state in pursuance of that amendment.

It is now contended by counsel for plaintiffs in error that, until legislative action is taken prescribing the courts and manner in which suits may be brought, the state is amenable to suit; that the right to sue the state becomes Operative immediately and is not in abeyance, awaiting legislative consent.

It is a fundamental principle of law that the state, as a sovereign, is not liable to be sued in its own courts without its express consent. It is maintained, however, that the constitutional amendment above quoted has given that consent. Related provisions of the Wisconsin Constitution are as follows : “The legislature shall direct by law in what manner and in what courts suits may be brought against the state.” Similar provisions are found in the Constitutions of Alabama, Arkansas, Kentucky and Washington, but in all of these states their several courts have held that, under constitutional provisions of that character, actions cannot be maintained against the state in its own courts unless such are authorized by legislative action; that such provisions are not self-executing in character. Chicago, Milwaukee & St. Paul Ry. Co. v. State, 53 Wis., 509; Turner v. State, 27 Ark., 337; Beers v. Arkansas, 20 How., 527; Ex parte Greene, 29 Ala., 52; Northwestern & Pacific Hypotheek Bank v. State, 18 Wash., 73; Title Guaranty & Surety Co. v. Guernsey, 205 Fed. Rep., 94, and Tate, Treas., v. Salmon, 79 Ky., 540.

Some of these as well as other cases cited hereafter in the opinion are also authority for the principle that though legislative consent may have been authorized for the bringing of such suits, such consent may be later withdrawn by the legislature, even though liability accrued while the consenting statute was in force.

It is difficult to perceive any material difference between the provision of the present Ohio Constitution and those of the state constitutions above named. If the Ohio provision had read “suits may be brought against the state,” without further qualification, there might be some reason for the. contention made, but it is evident that there has been attached to the consent given a qualification and condition which authorizes such suits to be brought only in such courts, and in such manner as “may be provided by law,” and until a statute has been enacted no such suit may be brought against the state.

Section 22, Article VI, of the Nebraska Constitution, is but very little different from our own. It provides that “The state may sue and be sued, and the legislature shall provide by law in what manner and in what courts suits shall be brought.” The supreme court of Nebraska held that this provision was not self-executing; that legislative action was necessary to. make it available; and apparently made no distinction in that regard between the Nebraska Constitution and the constitutions of the various states heretofore noted. State v. Mortensen, 69 Neb., 376-386.

This provision of the Ohio Constitution, however, and the provisions of the California and Tennessee Constitutions are in haec verba, which latter constitutions were adopted and in force and construed by their several courts long prior to the adoption of the Ohio amendment in 1912. And inasmuch as this state adopted the language of those earlier constitutions it may be presumed that the constitutional convention at the time knew of the construction given them by their respective courts. The Constitutions of California, both that of 1849 and that of 1879, contained the following provision: “Article XX, Section 6. Suits may be brought against the State in such manner and in such courts as shall be directed by law.” The courts of California held that under such provision, in the absence of an enabling statute, the state cannot be sued. They so held at times when each of the above constitutions was in force in that state. (People v. Talmage, 6 Cal., 256; People v. Miles, 56 Cal., 401, and Melvin v. State, 121 Cal., 16.) A similar construction has also been given to this provision in the Constitution of California by a federal court, in Galbes v. Girard et al., 46 Fed. Rep., 500, where it was held: “Cons’t. Cal. Art. 20, Sec. 6, provides that ‘suits may be brought against the state in such manner and in such courts as shall be directed by law;’ but, where no law has been passed by the state authorizing such suits, a motion to dismiss as to the state in a suit in which the state is made a party defendant, must be sustained.”

The related provisions of the Tennessee Constitutions adopted in 1834 and 1870 are similar to our own. Section 17, Article I, of the Tennessee Bill of Rights, provides: “All courts shall be.open; and every man, for an injury done in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.” Under this provision of the Tennessee Constitution the supreme court of that state holds in the syllabus in the case of General Oil Co. v. Crain, 117 Tenn. (9 Cates), 82: “The constitutional provision that suits may be brought against the State in such manner and in such courts as the legislature may by law direct is not self-executing.” That provision of the Tennessee Constitution was also construed by the supreme court of the United States in Railroad Co. v. Tennessee, 101 U. S., 337. In this case the statute had been passed by the state granting its consent to the bringing of the suit in question, and while such statute was in force the liability accrued. Before the suit was brought the consenting statute was repealed. Plaintiff was denied relief under the provisions of the Tennessee Constitution by both state and federal courts.

We, therefore, hold that the provision of the Ohio Constitution above noted is not self-executing, and that legislative authority by statute is required as a prerequisite to the bringing of an action against the state in its own courts. In each case the judgments of the court of common pleas and the court of appeals are affirmed.

Judgments affirmed.

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


author: Newman, J.

text:
    The State, ex rel. Conners, v. DeMuth, Superintendent of the Toledo Workhouse.

      Jurisdiction of mayor — In city not having police court — May pronounce sentence, when — Section 4530, General Code — Habeas corpus proceedings—Question of false entry of plea of guilty — Not proper subject of inquiry, when.

    1. By force of Section 4530, General Code, the mayor of a city not having a police court, has jurisdiction to pronounce sentence where the accused charged with a misdemeanor enters a plea of guilty, although imprisonment is a part of the punishment and the complaint is not made by the party injured.
    2. Where, from the copy of the commitment attached to a petition for a writ of habeas corpus, it appears that the person alleged to have been restrained of his liberty is in the custody of an officer by virtue of the judgment of a mayor of a city having jurisdiction to render such judgment, and it further appears that sentence was pronounced upon a plea of guilty by the accused, the question whether or not such plea was falsely entered by the mayor upon his docket is not a proper subject of inquiry in the habeas corpus proceeding.
    (No. 15479
    Decided July 3, 1917.)
    Error to the Court of Appeals of Lucas county.
    The relator, Thomas J. Conners, filed a petition in the probate court of Lucas county for a writ of habeas corpus, in which he alleged that he was unlawfully restrained of his liberty and imprisoned in the Toledo workhouse. There was attached to the petition a copy of the commitment, from which it appeared that the relator was arrested and plead guilty before the mayor of the city of Norwalk to the charge of operating an automobile upon a street of that city while in a state of intoxication, and was sentenced to be imprisoned in the Toledo workhouse for a term of six months and to pay a fine of $100 and the costs of prosecution.
    It was alleged that while the commitment showed that the relator had plead guilty to said charge, as a matter of fact he did not do so, but the commitment was falsely made to show said fact by the mayor of Norwalk. It was alleged that the commitment further showed that the affidavit filed with the mayor was not made by the person injured, but was made by the chief of police of the city of Norwalk. It was alleged that said commitment did not show, what was alleged to be a fact, that the relator did not waive a trial by jury or consent to be tried by the mayor. It was further alleged that the mayor did not have final jurisdiction to hear said charge, and no legal right to commit relator to the Toledo workhouse. The prayer of the petition was that a writ of habeas corpus be issued and that the relator be discharged from such unlawful imprisonment.
    An answer was filed in which it was alleged that the copy of the commitment attached to the petition, upon which relator was imprisoned, was a true and correct copy, and that the affidavit upon which the relator was arrested was made by the chief of police of the city of Norwalk. It was alleged that the relator did in fact plead guilty to said charge. It was denied that the mayor did not have final jurisdiction to hear and determine said charge against relator and to commit him to the Toledo workhouse.

      The cause was heard in the probate court upon the pleadings, and the court found that the relator was unlawfully restrained of his liberty. He'was discharged, arid judgment for costs was rendered against defendant in error. This judgment was affirmed by the court of common pleas, and error was prosecuted to the court of appeals, where the judgment was reversed; and the court of appeals proceeding to render the judgment which the court of common pleas should have rendered reversed the judgment of the probate court and remanded relator to the custody of defendant in error. Upon application of plaintiff in error the court of appeals was directed to certify its record to this court.

      Mr. Jesse Vickery and Mr. Rupert Holland, for plaintiff in error.

      Mr. Frank Carpenter and Mr. Irving Carpenter, for defendant in error.
   Newman, J.

Counsel for the relator, in support of their contention that the mayor of the city of Norwalk had no jurisdiction upon a plea of guilty to sentence the relator to imprisonment in the workhouse, rely upon the provisions of Section 13510, General Code. It is there provided that where a person accused of a misdemeanor is brought before a magistrate, and the complaint is not made by the party injured, and the person accused pleads guilty, the magistrate shall require the person so accused to enter into a recognizance to appear at the proper court as is provided when ■there is no plea of guilty. This section prescribes specifically the proceedings of a magistrate upon a plea of guilty, -while the following Section (13511) relates to the proceeding to be had where there is a plea of not guilty.

These two sections were construed by this court in Hanaghan v. The State, 51 Ohio St., 24, and it is claimed that the holding in that case is decisive of the question presented here. In the Hanaghan case the accused filed a written plea of guilty with the justice of the peace, who sentenced him to imprisonment in the workhouse. The affidavit upon which the warrant had been issued was filed by a party who did not appear to have been injured otherwise than as a member of the community. The holding of the court was that “the party injured,” as that phrase is used in Section 13510, means the person who suffers some particular injury from the commission of the misdemeanor, as distinguished from that which results to the public, or local community where it is committed. It was further held that a plea of guilty of such offense, though filed in writing with the magistrate, is not a waiver by the accused of his right to a trial by jury, and a submission to be tried by the magistrate, within the purview of Section 13511; and in such case, unless the complaint was filed by the party injured, it is the duty of the magistrate to recognize the accused to the proper court.

In the instant case, the relator was charged with a misdemeanor on the complaint of the chief of police of the city of Norwalk, who was not, according to the holding of this court, the party injured. If the prosecution had been before a justice of the peace the position taken by counsel would be tenable. But this proceeding was before the mayor of a city having no police court, and the jurisdiction of such mayor is conferred by Section 4527 et seq., General Code.' The sections pertinent to the inquiry here are as follows:

“Sec. 4527. In cities, not having a police court, the mayor shall have final jurisdiction to hear and determine any prosecution for the violation Of an ordinance of the corporation, unless imprisonment is prescribed as part of the punishment.
“Sec. 4528. He shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is, by the constitution, entitled to a trial by jury, and his jurisdiction in such cases shall be co-extensive with the county.”
“Sec. 4530. He shall have such jurisdiction in the cases mentioned in the last two sections, notwithstanding the right to a jury, if before the commencement of the trial, the accused waives a' jury trial.
“Sec. 4531. If the charge is the violation of an ordinance in a matter with respect to which imprisonment may be a part of the punishment, and the accused does not waive a jury, the mayor shall, nevertheless, impanel a jury, and try the case on the affidavit, in the same manner, and with like effect, as misdemeanors are tried in the court of common pleas on indictment.
“Sec. 4532. If the charge is the commission of a misdemeanor, prosecuted in the name of the state, and the accused, being entitled to a jury, does not waive the right, the mayor may, nevertheless, impanel a jury, and try the case on the affidavit, in the same manner, and with like effect, as such cases are tried in the court of common pleas on the indictment.”

It is to be noted that in Section 4530 the phrase “last two sections” is used. This unquestionably refers to Sections 4527 and 4528. These three sections were originally Sections 1816, 1817 and 1818, Revised Statutes. Subsequent to their enactment there was enacted Section 1817a, Revised Statutes (now Section 4529, General Code), which provides that neither the clerk of a mayor’s court, nor his deputy, shall be concerned in a prosecution or defense in a case in that court. It is apparent that no reference to this section was intended, but for some reason the phrase “last two sections” was not changed in Section 4530.

In State v. Borham, 72 Ohio St., 358, it was held that by force of Section 1817, Revised Statutes (now Section 4528, General Code), a mayor of a city in which there is no police court, has final jurisdiction to hear and determine any prosecution for a misdemeanor where the accused is not entitled to a trial by jury, and it is not the mayor’s duty, in such case, to require the accused to enter into recognizance to appear in a higher court, although the complaint is not made by the party injured. The contention was made in that case that if Section 4528 were to be construed as giving mayors jurisdiction in prosecutions for misdemeanors to render final judgment where there is a plea of guilty and the complaint is not made by the party injured, it would render nugatory as to one class of magistrates the provisions of Section 13510. In the opinion in the Borham case it is said that while in the broad sense a mayor is a magistrate, and the language used in Section 4528 is at war with the text of Section 13510, yet the general assembly had before it the provisions of the latter section when it enacted Section 4528, and the court was constrained to the conclusion that the latter section was intended by the general assembly as an exception to the general provisions of Section 13510.

But it is claimed by counsel that the Borham case differs from the case at ‘bar in that, in the former, imprisonment was no part of the sentence, and that therefore that case has no application here. We cannot agree with counsel. In the Borham case the decision of the court was not based upon the ground that imprisonment was not a part of the punishment. The contention in that case was that Section 13510 controlled the proceeding, the provisions of that section imposing upon the magistrate the duty of requiring the accused to enter into a recognizance to appear at the proper court, where the complaint is not made by the party injured. This duty devolves upon the magistrate whether imprisonment is a part of the punishment or is not. We think the reasoning in the Borham case which led to the conclusion that Section 4528 was an exception to the general provisions of Section 13510 applies with equal force to Section 4530, and that the proceeding before the mayor in this case was controlled by the provisions of that section, and that Section 13510 does not apply.

It is said by counsel for the relator that the answer filed in the habeas corpus proceeding claimed no special jurisdiction in the mayor of Norwalk and is silent as to whether or not that city has or does not have a polic'e court. No claim is made that as a matter of fact it does not have a police court. The court of appeals disposed of this branch of the case by holding that the courts of this state will take judicial knowledge of its statutory laws and the population of its cities and that it was therefore in the knowledge of the court that the city of Norwalk did not have a police court. But even if this were not true the relator was challenging the jurisdiction of the mayor. The presumption is that he was acting according to law. If his jurisdiction was that of a mayor of a city having a police judge, the burden of establishing that fact devolved upon the relator.

Another contention of the relator is that it does not appear in the commitment that there was a waiver of a trial by jury. There is no provision in any of the sections relating to the duties of the mayor which requires the waiver of a jury in writing, even under a plea of not guilty, as is the case in a proceeding under Section 13511. Under the provisions of Section 4530, the mayor has jurisdiction in cases where there is a right to a trial by jury, if before the commencement of the trial the accused waives a jury. It is to be noted that Section 4532 provides that where the charge is the commission of a misdemeanor, prosecuted in the name of the state, and the accused, being entitled to a jury, does not waive the right, the mayor may, nevertheless, impanel a jury, and try the case on the affidavit, in the same manner, and with like effect, as such cases are tried in the court of common pleas on the indictment. It will be seen that the jurisdiction of the mayor in these matters is very broad. It seems to be well settled that a plea of guilty is a confession of guilt and is equivalent to conviction, and the court may at once pronounce sentence, unless of course it is precluded from doing so by. some express provision of the statute such as is found in Section 13510, where the complaint is by a person other than the one injured. But, as we have seen, there is no provision of this kind in any of the statutes which have to do with the jurisdiction of a mayor, and the course to be pursued by him is the same as that followed by the court of common pleas in a criminal case. What was said by the court in Carper v. The State, 27 Ohio St., 572, 577, is in point here: “A defendant, after a trial and verdict of guilty, may move the court for a new trial, for any of the causes specified in the code. One who has plead guilty has waived a trial, and can not make such a motion. It would be idle, therefore, to ask the question to one who by his plea has waived the right to avail himself of all matters that might arise on a motion for a new trial.” We think, then, that the relator waived his right to a trial by jury when he entered a plea of guilty, and that the mayor had full power to pronounce sentence.

But it is urged finally that even though the mayor did have jurisdiction under a plea of guilty to pronounce sentence, the court of appeals, instead of entering final judgment and remanding relator to the custody of defendant in error, should have remanded the cause to the probate court with instructions to that court to hear evidence and determine the issue made by the petition and answer as to whether or not the plea of guilty was entered falsely upon the docket of the mayor.

Section 12165, General Code, provides that if it appears that the person alleged to have been restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment or make the order, the writ of habeas corpus shall not be allowed. It is well settled that if a court has sentenced a person for an offense over which by law it had no jurisdiction whatever, the imprisonment following such sentence would be unlawful and such person would be entitled to be discharged on habeas corpus. But habeas corpus is not the proper mode of redress where the relator has been convicted of a criminal offense and sentenced to imprisonment therefor by a court of competent jurisdiction. If errors or irregularities have occurred in the proceeding or sentence, a writ of error is the proper proceeding. (Ex parte Van Hagan, 25 Ohio St., 426; Ex parte Shaw, 7 Ohio St., 81, and In re Allen, 91 Ohio St., 315.) As we have seen, the mayor of a city not having a police court, has jurisdiction to entertain a complaint charging a person with operating an automobile upon a street of a city while in a state of intoxication, and has jurisdiction to issue the warrant, to receive the plea of the person accused, and to pronounce sentence. In the instant case it appears from the commitment that the relator plead guilty to the charge. In his petition the relator challenges the correctness of this entry upon the docket of the mayor. The record of the mayor, as evidenced by the copy of the commitment, is determinative of what was done. If in the exercise of his jurisdiction the mayor committed an error or an irregularity the same cannot be corrected in a habeas corpus proceeding. The issue which relator claims should be determined by the probate court was not properly in the case, and, for that reason, without considering the other reasons advanced by counsel for defendant in error, the court of appeals was correct in not remanding the cause to the probate court.

We find no error in the judgment of the court of appeals and the same is therefore affirmed.

Judgment affirmed.

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