author: Uurket, J. Minshall, J.

text:
    The Cincinnati, Lebanon & Northern Ry. Co. v. The City of Cincinnati et al.

      Inviolability of private property — Section 19 of article 1 of Ohio Constitution — Compensation paid for lands taken by appropriation — Cannot be assessed back on the lands.

    1. Section 19 of article 1 of the constitution is a limitation upon section 6 of article 13 as to the power of assessments.
    2. Compensation paid to a land owner for lands taken hy appropriation proceedings to open a street, cannot he assessed hack upon the lands of the owner remaining after such taking. Neither can the costs and expenses incurred in such proceeding he so assessed. Cleveland v. Wick, 18 Ohio St., 303, overruled.
    (Decided April 24, 1900.)
    Error to the Circuit Court of Hamilton county.
    On the 10th day of February, 1892, The Cincinnati, Lebanon & Northern Railway Company filed the following petition in the court of common pleas, , against the city of Cincinnati and Daniel W. Brown, city auditor :
    “Plaintiff says that it is a corporation organized under the laws of Ohio, and is operating a railroad between Cincinnati and Lebanon in said state.
    That the city of Cincinnati is a municipal corporation of the first grade of the first-class, and that Daniel W. Brown is auditor of said city.
    Plaintiff, for cause of action, says that on the 17th day of February, 1889, an ordinance was passed by the common council of said city, two-thirds of all the members elected to the board of councilmen and the board of aldermen concurring therein, and declaring the same to be necessary, to condemn property in said city for the purpose of extending Fern street eastwardly to Lane street, a copy of which ordinance is hereto attached, marked Exhibit A, and is made part hereof.

      Plaintiff further says that in compliance with said ordinance, the city solicitor of said city did, on the -day of May, 1889, file an application on behalf of said city to assess compensation for the property by said ordinance ordered to be appropriated against this plaintiff and others, in case No. 88,904 of this court, the property desired to be appropriated, belonging to this plaintiff being described in said petition, as follows:
    “Lot No. 4. The right to cross the tracks of the Cincinnati, Lebanon & Northern railway at the place where the north and south lines of Lincoln avenue produced west would cross the same, the same being the property of the Cincinnati, Lebanon &, Northern Railway Company.”
    That thereafter a jury was duly impaneled and sworn, and compensation was awarded to the several owners of the property, and among others to this plaintiff, in the following words and figures, to-wit:
    “To the owner or owners of lot No. 4, the Cincinnati, Lebanon Sc Northern railway,, for the right to cross their tracks, the sum of $1.00.”
    Plaintiff says that its road-bed and tracks as then and now situated, are from twenty to thirty feet below the grades of Lane street and Fern street, and that it would be impracticable to cross the tracks of plaintiff, except by the erection of a bridge, and that the construction and erection of a bridge over the tracks of this plaintiff was intended at the time of the passage of said ordinance. Plaintiff says that no improvement has as yet been made or commenced; and that said plaintiff has derived no benefit to its property, that when the said improvement is made, the tracks of this company can only be crossed by a bridge, and that no part of plaintiff’s premises will abut upon said improvement when made, but on the contrary access from plaintiff’s premises to such improvement will be entirely cut off.
    Plaintiff says that on the 12th day of February, 1890, the board of public affairs passed an ordinance, No. A 310, to assess a special tax on real estate bounding and abutting on Fern street extended from the west line of Spring street, as platted, to the west line of Lane street, a copy of which ordinance is hereto attached, marked Exhibit B, and is made part hereof.
    Plaintiff says that its property or road-bed, across which said right of way was condemned at said point, is thirty feet in width., A plat of the survey for the extension of Fern street is hereto attached, marked Exhibit C, and is made part hereof.
    Plaintiff says that Daniel W. Brown, city auditor, in compliance with said assessing ordinance, has assessed and charged upon the books in his office against this plaintiff and its property for eighty feet frontage abutting upon said Fern street, notwithstanding that the property of plaintiff has a frontage thereon of but sixty feet, or thirty feet on either side, and that said assessment as charged against it, is as follows:
    (The amounts of the assessments per front foot from 1891 to 1900 inclusive are omitted as not material to an understanding of the case.)
    Plaintiff says that said assessment so made against its said property is illegal and void: First, for the reason that sáid assessment is simply to reimburse .the city for the.cost of the property taken from these plaintiffs, and if enforced against plaintiff it will be deprived of its said property without compensation and due process of law in violation of its rights as the owner of said property, and in violation of article 1, sec. 19, of the constitution of the state of Ohio, and in violation of the fourteenth amendment of the constitution of the United States of America; second, because only a right of way was condemned over the tracks of plaintiff, and only a nominal compensation was awarded it for such right of way; third, that plaintiff will not have any lots abutting upon said improvement when the same is completed; fourth, because the assessment is in excess of 25 per cent, of the value of its property with the usual depth of lots in that vicinity.
    Plaintiff says that it has not paid said assessment levied for said purpose nor any part thereof; that the assessment for the year, 1891,. amounts to $91.02, together with ten per cent, penalty thereon, and that the said Daniel W. Brown, city auditor, threatens to certify the said assessment for the year, 1891, and the other said assessments as they may become due, to the auditor of Hamilton county, Ohio, to be placed upon the tax duplicate of Hamilton county, Ohio, as a charge and lien upon the property of plaintiff in said county, and unless restrained by this court a cloud will be placed upon its title, and it will suffer great and irreparable loss and injury, for which it has no adequate remedy at law.
    Wherefore, plaintiff prays that the said Daniel W. Brown, city auditor, may be restrained from certifying said assessment for the year 1891, to the auditor of Hamilton county, Ohio, and upon the final hearing thereof, the said city of Cincinnati and Daniel W. Brown, the city auditor, or his successors or successor, may be perpetually enjoined from the collec-. tion of said assessment so charged and levied against this plaintiff and its said property for said Fern street improvement, and for all other and further relief to which in law or equity it may be entitled.”
    The answer is as follows:

      “Now come the defendants and for answer say that they admit that the defendant city is a corporation organized under the laws of Ohio, and is of the first grade, and of the first class; that Daniel W. Brown is auditor of said city, and that the plaintiff is a corporation under the laws of Ohio, and operates a railroad between Cincinnati and Lebanon in said state; and that on the 17th of February, 1889, an ordinance was passed by the common council of said city, and that the board of aldermen concurring therein and declaring it necessary to condemn property for the purpose of extending Fern street eastwardly to Lane street, and that under the said ordinance proceedings were had in case No. 83,904, common pleas court; that compensation was assessed and paid, and that the money to pay the said compensation was raised by levying an assessment upon the abutting property, as alleged in the petition, and that all necessary steps were taken to make the said assessment a charge upon the abutting property, and that the plaintiff’s property was assessed in the amounts and in the manner described and alleged in the petition. And defendant denies each and every other allegation in plaintiff’s petition contained not herein expressly admitted.
    Wherefore defendants pray that the injunction» asked for may be denied, and for all other relief to» which in equity they are entitled.”
    The following supplemental petition was filed March 19, 1895 :
    “Now comes the plaintiff] and, by leave of court, files this, its supplemental petition and says:
    That since the levying of the assessment upon the property described in the original petition, that the legislature of the state of Ohio passed an act on May 21, 1894, whereby it was provided that the county commissioners of Hamilton county should levy a tax for the purpose of building a bridge over the tracks of this plaintiff, so as to connect Fern street on the west with Lane street and Lincoln avenue on the east; that by reason of the passage of said act, volume 91, page 826, the improvement of said property can only be made by the construction of a bridge over the premises, abutting property and right of way condemned in the proceedings, as alleged in the petition herein.
    This plaintiff says, that while it may have abutting property upon the right of way, that by reason of the passage of the act hereinbefore mentionad it will have no frontage whatever upon the improvement.
    Wherefore this plaintiff prays that the injunction herein issued may be made perpetual.”
    The court of common pleas found in favor of the railway company, and enjoined the collection of the assessment. Upon appeal the circuit court made the following finding of facts and rendered the following judgment:
    “This cause coming on to be heard upon the pleadings and evidence, was argued by counsel and submitted to the court; upon consideration whereof the court find the facts to be as follows:
    , In condemning and appropriating the land described in the petition it was the intention of the city of Cincinnati to construct over and above it a bridge ■at a considerable distance from the surface, and in accordance with that plan there has been built since the commencement of this action a bridge over said real estate, about twenty-two feet above the surface, said bridge having iron railings on either side. The real estate of the plaintiff assessed for the expense of said appropriation being a strip of land thirty feet •wide on either side of said bridge, the land on either side of said strips of land being owned by private parties, and that the plat attached to the petition correctly shows the property of the plaintiff and the surrounding property. The court also find that the plaintiff’s said land is used as part of its right of way for the running of trains.
    The court further find that the value of said property after the improvement and at the date of the appropriation was twelve dollars per front foot.
    The court further find as their conclusions of law that said property abuts upon said improvement under the statutes of Ohio, and is liable to assessment for said improvement, but only to the extent of twenty-five per cent, of the value of said land as here found, to-wit: three dollars per front foot. It is therefore considered by the court that the defendants be restrained from endeavoring to collect said assessment in excess of three dollars per front foot on the sixty feet of the plaintiff’s land described in the petition, and thereupon the plaintiff by its counsel excepted to so much of the decree as . found that the plaintiff’s property was liable to assessment for any amount.”
    The railway company filed its petition in error in this court, seeking to reverse the judgment of the circuit court.

      Ramsey, Maxwell é Ramsey, for plaintiff in error.

      Ellis G-. Kinhead, Wade E. Ellis, and E. K. Rogers, for defendant in error.
   Uurket, J.

While the petition in error asks relief upon several grounds we shall consider only one of them,, that which invokes section 19 of article 1 of the constitution of this state. That section is as follows:

“Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use,' a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”

Section 6 of article 13 of the constitution is as follows:

“The general assembly shall provide for the organization of cities, and incorporated villages, by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power.”

In Zanesville v. Richards, 5 Ohio St., 589, this court held that section 2 of article 12 of the constitution is a limitation upon the power of taxation which the general assembly can grant to a municipality under this section, and that general revenue is required to be raised by a uniform levy on all taxable property alike without exemption. Later decisions have held that general revenue may also be raised by fees in certain cases.

In Hill v. Higdon, 5 Ohio St., 243, and also in Cleveland v. Wick, 18 Ohio St., 303, this court held that section 19 of the Bill of Rights, and said section 6 of article 13, are independent of each other, and that said section 19 is not a limitation on said section 6. Upon the correctness of that holding depends the determination of this case.

In Hill v. Higdon, supra, it is held that the constitution must be so construed as to be consistent throughout, and it was concluded that that could only be done by holding these two sections independent of each other, and the same theory obtained in Cleveland v. Wide, supra.

If they are independent of each other then the one does not affect, limit or control the other. If they áre independent, the guaranty in section 19 that private property shall ever be held inviolate, may be in effect abrogated and nullified under the guise of an assessment. If they are independent, then after private property has been taken for public use and paid for, section 19 has exhausted itself, and section 6 may ■ then step in with its powers of assessment and begin, not where section 19 left off, but back of that point, and may again take up the question of benefits conferred by the taking of the property for public use, and compel the owner from whom the property was taken, to pay back into the treasury all that he has received, and the costs and expenses in addition thereto. If they are independent, the power of assessment, unlike the power of taxation, is unlimited and unrestricted, except by the will of the General Assembly, and the general assembly need not look for benefits upon which to found an assessment, but may assess as it pleases whether there are benefits or not; it may supply its treasury with funds with which to make improvements by assessment upon any property it pleases, and exempt any property it pleases. A mere statement of the consequences of holding the two sections to be independent is sufficient to show that they are not so, and that section 19 is a limitation on said section 6.

But we are not without authority upon this question. That the constitutional guaranty of the inviolability of private property is a limitation upon the power of taxation and assessment has been held by the Supreme Court of the United States and by this court. The Supreme Court of the United States so held in construing the fourteenth amendment to the constitution in Davidson v. New Orleans, 96 U. S., at page 107, and in the Kentucky Railroad Tax Case, 115 U. S., 321. And this court in Chamberlain v. Cleveland, 34 Ohio St., 551, held that section 19 of the Bill of Rights is a limitation upon the power of assessment, and held that, “If a sum is exacted in any instance in excess of the value of the special benefits conferred, it is, as to such excess in that instance private property unjustly taken for public use without compensation to the owner.” In considering the question as to whether the power of assessment is unlimited and in the sole discretion of the general assembly, the court say: “If such a discretionary power is vested in the general assembly, it is very clear that it may be used to subvert section 19 of the Bill of Rights, and private property will not be inviolate, but at the mercy of a discretion, under which it may be taken from the owner without compensation, and be gratuitously given to the public.” It is, therefore, clear that said section 19 is a limitation upon the power of assessment in section 6 of article 13 of the constitution.

Being such limitation all that is found in said section Í9 bearing upon the power of assessment must also be construed as a limitation upon that power; that is the power of assessment in said section 6 must be so used and administered as not to conflict with said section 19, but must be subservient and subordinate thereto.

The limitation is not only as to the amount of the assessment, which cannot exceed benefits, but it is also as to the purpose for which an assessment can be made. No assessment can be made to raise general revenue, because that must be raised by taxation under other provisions of the constitution, as has often been held by this court. And as assessments cannot be made to raise general revenue, no assessment can be made to replenish the general revenue in the treasury, or reimburse the treasury for general revenue which has been paid out. When payments have been made out of the general revenue fund, the. treasury can only be replenished or reimbursed by taxation, or fees, and not by assessments.

The two sections deal with the same general subject-matter, that of taking value from a private individual and appropriating it to public use, whether that value consists of real estate for a road bed, or money to pay for improving a road bed, and both should be construed together as being in pari materia, and by so doing the constitution is consistent throughout without any independent conflicting sections.

Said section 19 provides that “Private property shall ever be held inviolate, but subservient to the public welfare. When taken * * * for the purpose of making or repairing roads, which shall be open to the public without charge, a compensation shall be made to the owner in money * i:‘ * and such compensation shall be assessed by a jury without deduction for benefits to any property of the owner.”

The property is held subservient to the public welfare, and may be taken for the purpose of making or repairing roads which shall be open to the public, so that it is only, the public that is granted the power to take private property, and the public can only take such property for public nse. As the public takes the property for public nse, it follows that the public must pay for the property which it takes and uses. If the state takes the property, the state must pay for it. If a county takes the property, the county must pay for it. If a township or school district takes the property, payment must be made by the taker, and if a city takes the property, the city must pay for it. In all such cases the state, or the subdivision of the state which takes the property, is in that particular case the public.

In practice the compensation is awarded by a jury, and the court confirms the verdict and renders the proper judgment, and thereupon payment is made out of its treasury by that subdivision of the state which instituted the proceedings.

That subdivision which institutes the proceedings and is in that particular case the public, is thus constituted a taxing district by said section 19 to pay for the property which it takes, and payment is made by that taxing district out of its treasury, and the property cannot be awarded to it until it pays for it, or deposits the money to secure its payment.

The money to pay for property so appropriated must be raised by a levy upon the general tax list, or by the sale of bonds issued upon the public faith and credit, and whichever method may be adopted, it invokes the power of taxation, which must be an equal levy upon the general tax list, and not the power of assessment, which is a levy upon a prescribed district according to benefits. It is therefore clear that payment for property so appropriated must be by taxation, and not by assessment, and that section 19 of article 1 is in this regard a limitation upon the power of assessment in section 6 of article 13.

Coming now to the power of assessment particularly in question in this case. A municipality having by proceedings in appropriation taken private property for street purposes, and paid for it out .of its treasury, can it create and constitute the lands of the owner left after the appropriation a special taxing district for the purpose of reimbursing its treasury by assessing back upon his said remaining lands the full amount of the compensation paid him, together with all the costs and expenses? We think not.

Section 19 of article 1 being a limitation on the power of assessment in section 6 of article 13 as held in the later cases, there is nothing to base such an assessment upon. The taking of private property for public use is an injury to the owner, for which under said section 19 he must be awarded full payment, and when such a payment is made, he has received only that which the constitution guaranteed him, and he can be under no obligation to the municipality for receiving that to which he had a legal and constitutional right. He parted with as much value as he received. The public injured him and paid for the injury, and then to make the injury and payment a basis for recovering back from him all he received and more, would be to take his property for nothing, and mulct him in costs and expenses besides, and this would be in direct conflict with said section 19 of article 1 of the constitution.

But it is said that after the owner has received payment of his compensation for the lands taken from him, that he stands on an equality with the rest of the community, and may be assessed the same as they for any special benefit which accrues to him by the improvement, that is, by the taking of his lands for street purposes. This is true as to the surface improvement made after the street is opened, but as to the compensation paid him for the land it is not true, and is a taking back from him without consideration that which is guaranteed to him by the constitution, and which has been paid to him upon a judgment rendered in his favor by a court of competent jurisdiction. In such a case there can be no going back of the judgment rendered in the appropriation proceedings to seek for benefits conferred by the taking of the property. If he is to be assessed for such benefits, that should have been taken into consideration in the appropriation proceedings, so that the judgment might be final as to the rights and liabilities of the parties as to the lands taken. But it is answered that that could not be done because the compensation must be without deduction for benefits. True, and it is because the constitution so guarantees, that no benefits can enter into the case, and form the basis for making an assessment against him. To make an injury to his lands,for which the constitution guarantees full payment without benefits, the basis for an assessment against his lands for benefits conferred, is illogical and absurd. If such a thing can be sustained by a course of reasoning in equity — and it cannot — it certainly cannot be sustained under ofir constitution, and it is the constitution and not equity, by which we are bound when the two come in conflict.

There is much force in what is said by the Circuit Court on this question in Rhoades v. City of Toledo, 6 C. C. R., 9; 3 Circ. Dec., 325.

The case of Cleveland v. Wick, 18 Ohio St., 303, is relied upon to sustain the assessing back upon the property of the owner the compensation paid him for lands appropriated, with the costs and expenses added.

That case is reasoned ont by means of two false premises which vitiate the whole case and render it' unsound. The case is based, in the first place, upon the premise that section 19 of the Bill of Rights, and section 6 of article 13, are entirely independent of each other. That this premise is false and does not exist has since been clearly shown in. the well-considered case of Chamberlain v. Cleveland, 34 Ohio St., 551. The case is based, in the second place, upon the false premise that there can be no power of assessment for surface improvements of a street, unless the power of assessment to pay for the land taken also exists, that is that the power of assessment to pay for the land taken and the/ power of assessment to pay for the cost and expenses of the surface improvement are one and the same, and inseparably connected. That this is not legally true is shown by the subsequent case of Krumberg v. Cincinnati, 29 Ohio St., 69, in which this court held 'in the fourth syllabus as well as in the opinion, that “The power to levy special assessments to pay for land taken to widen or extend a street, is separate and independent of the power to levy such assessments to pay for grading and paving the street, and the validity of assessments, made for those purposes, does .not depend upon whether the powers were exercised at the same, or different times.”

Said section 19 being a limitation upon the power of assessment as to the taxing district by which compensation and costs must be paid as above shown, it follows that such compensation and costs cannot be involved in, or as part of, the street improvement, and with that out, and the assessment made for the surface improvement against the lots and lands of all the bounding and abutting owners, including the one from whom the lands were taken to open the street, according to benefits, the inequalities pointed out in that case cannot arise. It is only by insisting upon the false premise that the compensation paid and the cost and expenses of making the surface improvement are inseparably connected, and that an assessment for all or none must be made against the owner from whom lands were taken to open the street, that the inequalities pointed out in that case can arise. With the compensation left out of the assessment, there can be no double payment to the owner, as argued at the close of the opinion; and in like manner if the compensation is left out of the assessment, and the assessment made for the cost and expense of the surface improvement only, the example given in that case of A. and B. owning one acre each on the street loses its force. In fact, with that left out, the whole opinion loses its force. The whole case is founded upon and reasoned out, — and well reasoned — upon the false premises that the two sections of the constitution, above cited, are independent of each other, and that the compensation must be included as a part of the amount for which the assessment must be made, and that if no assessment can be made for the compensation, none can be made for the surface improvement.

That case is therefore not sound, and is overruled, and the statute, in so far as it undertakes to assess the compensation paid to the owner of the land taken, back upon his remaining lands together with the costs of the taking, is unconstitutional and void, and so is any ordinance passed thereunder.

In the case at bar there was paid to the railway company out of the general revenue fund raised by taxation the sum of one dollar for the right of way for a street across the track of the railway company, and there was assessed back upon the track of the railway company as property abutting on such right of way of said street, over five hundred dollars, not to pay for the right of way, because that had already, been paid for out of the treasury, nor to pay for the' bridge across the railway tracks, because that was paid out of a fund raised under a special act for that purpose, but to reimburse the general revenue fund of the treasury for the one dollar paid to the company, and the costs and expenses paid out of the general revenue fund in the appropriation proceedings. The statute is broad enough to cover such a case; but is the statute warranted by the constitution? When such robbery is perpetrated under, and is attempted to be justified by, the constitution, it is high time to carefully examine that instrument, and former decisions of this court construing it, to see whether such extortions are warranted, and if former decisions seem to cover such cases, to see whether there is not some mistake in the construction, false premise in argument, or fallacy in reasoning, that leads to such unjust and burdensome results. We think that the construction heretofore placed upon the power of assessment is unwarranted, that the reasoning in former cases on that subject as above shown is founded upon false premises and is not sound, that the power of assessment does not extend to raising general revenue, nor to reimbursing the treasury for general revenue paid out in appropriating rights of way for street purposes, that the judgment of the circuit court is erroneous, and that the plaintiff in error is entitled to final judgment in its favor upon the record in this case.

The case of Northern Indiana R. R. Co. v. Connelly, 10 Ohio St., 159, was a case of making an assessment by the foot front on abutting property for the cost of a surface improvement of a street, and nothing was included in the assessment for the value of lands appropriated for a street. That case is therefore not affected hy this one, but in so far as it holds that lots and lands which are not benefited by the improvement of a street, may be assessed to pay for the same, it is in conflict with Chamberlain v. Cleveland, supra, and with Norwood v. Baker, 172 U. S., 269.

The case of Schroder v. Overman, 61 Ohio St., 1, also involved a surface improvement of a street, and not an assessment for the value of lands taken for the right of way to open a new street, and that case is not affected by the case at bar.

The case of Krumberg v. Cincinnati, 29 Ohio St., 69, relied upon Cleveland v. Wick, supra, to sustain the assessment of the compensation paid for the land taken, back upon the remaining lands, but did not consider the constitutionality of the statute then in force, but assumed it to be sustained by the Wick case. In that case it was conceded that the assessment for the value of the land taken was to reimburse the city treasury for money paid for the lands, but the question as to whether assessments could be made for that purpose was not argued by counsel or considered by the court.

The case of Caldwell v. Carthage, 49 Ohio St., 334, construed the statutes then in force, but did not pass upon the question of their constitutionality. The same is true of the case of Cincinnati v. Batsche, 52 Ohio St., 324.

It has been urged that the Wick case has been sustained by the Supreme Court of the United States in Norwood v. Baker, supra. That is a mistake. That court said: “It is said that the judgment below is not in accord with the decision of the Supreme Court of Ohio in Cleve land v. Wick, 18 Ohio St., 303, 310. But that is a mistake. That case only decided that the owner whose property was taken for a public improvement could not have his abutting property exempt from its due proportion of an assessment made to cover the expense incurred in making such improvement, that his liability in that regard was not affected by the fact that he was entitled to receive compensation for his property actually taken for the improvement without deduction on account of benefits to his other property. That the decision covered no other point is shown by the following extract from the opinion of the court.” Then follows an extract from the opinion. In the aboye the Supreme Court of the United' States gave only its construction of the Wick case, but further along on page 296, the court say: “We have considered the question presented for our determination with reference only to the provisions of the national constitution. But we are also of opinion that, under any view of that question different from the one taken in this opinion, the requirement of the constitution of Ohio that compensation be made for private property taken for public use, and such compensation must be assessed ‘without deduction for benefits to any property of the owner,’ would be of little practical value if, upon the opening of a public street through private property, the abutting property of the owner, whose land was taken for the street, can, under legislative authority, be assessed not only for such amount as will be equal to the benefits received, but for such additional amount as will meet the excess of expense over benefits.”

We have considered the case at bar only in view of the constitution of this state, so as to more clearly define the rights of the owners of private property when taken for public use for making streets, and the limitation upon the power of assessment in such cases, but it would seem that the judgment of the circuit court is also erroneous under the case of Norwood v. Baker, supra, because the assessment is far in excess of the benefits; but under that case a new assessment might be made to equal the benefits, if any, while under the constitution of Ohio no assessment whatever can be made back upon the property of the railway company for the compensation paid, and costs and expenses incurred in the appropriation proceedings.

Sometimes a municipality desires to open a new street, or straighten or widen an old one, in the line of general improvements, and for the general benefit and appearance of the municipality, and not for the special benefit of the lots and lands in a particular district. In such cases the compensation, costs, and expenses for lands taken should be paid by the municipality out of its general revenue fund raised for such purposes.

Sometimes the people in the vicinity desire to have a new street opened, or an old one straightened or widened, as a special benefit to their lots and lands, and when the same would not be of sufficient benefit to the municipality to warrant the payment of the compensation, costs, and expenses out of the treasury. In such cases the municipality may refuse to act in the matter until the parties to be specially benefited supply the funds to pay the compensation, costs, and expenses or such portion thereof as the municipality regards fáir and just, the same as is now authorized by section 4651 as to public roads. By acting upon this principle the burden can be placed where it belongs without forcing people to contribute by assessments where they are not benefited, and where they are opposed to the opening, straightening, or widening of the street; and more than all else, their constitutional rights will be protected. If the present statutes are not broad enough they can be amended.

Judgment reversed and judgment for plaintiff m error.

Minshall, J.

I concur in the reversal, but notin the grounds on which it is placed. The admitted facts show that it is physically impossible for the property of the railway company to be benefited by the construction of the overhead bridge, as property “abutting” on the improvement. It cannot be used by the company as an abutting owner, nor can anyone using it have access to the company’s road. It may be that its construction is a benefit to the company, in that its construction may relieve the company from the dangers incident to a grade crossing. But such benefits are merely incidental to the improvement ; and are not of a kind with ■ those for which an assessment may be made for the cost of an improvement. Such benefits must be common to all abutting property owners. Such as are not common cannot afford a basis for the apportionment of costs and expenses among property owners. It is the benefits that arise from the use to be made of the improvement that can be regarded in making an assessment and none others.

I fail to see any necessity in this case for overruling any of the former decisions of this court; and it will be quite time enough to consider whether any of them should be .overruled when the necessity arises. The opinion in Cleveland v. Wick, was prepared by a judge distinguished for his ability and accuracy of reasoning; and its supposed fallacies have withstood all criticism for a third of a century and it has been followed and approved time and again; and, only recently, the case of Hinkel v. Cincinnati, 58 Ohio St., 726, was disposed of on its authority alone. It is further to be observed that in Baker v. Nor-wood, the Supreme Court of the United States dues not question its accuracy. The majority regarded it as quite distinguishable from the case before (he court, and it was fully approved by the minority. The proposition that the value of lands condemned for a street must be paid for from the general fund of the municipality or from a fund raised by general taxation, virtually destroys the power of assessment, is contrary to the practice that has prevailed under the present constitution and is unsupported by any reported case.


source: Caselaw Access Project

author: Minshall, J.

license: Public Domain

text:
    Robertson v. Desmond & Ryan et al.

      Transfer of property by debtor in trust to prefer creditors — Contemplation on insolvency — Transferee may renounce the trust and restore property, when — Bight of all creditors to restored property.

    1. One to whom a transfer of property has been made by a debtor, in contemplation of insolvency, in trust to prefer one or more creditors, may, before any legal steps are taken to have it declared a trust for the benefit of all the debtor’s creditors, renounce the trust and restore the property, without becoming individually liable for its value.
    2. Such renunciation does not, however, affect the right of other creditors to have the character of the transfer judicially determined and the property administered as a trust for the benefit of all creditors under the insolvency laws of the state.
    (Decided April 24, 1900.)
    Error to the Circuit Court of Hamilton county.
    The original action in this case was commenced in the Common Pleas Court of the county by a judgment creditor to set aside a conveyance of certain real estate alleged to have been made by Charles G-. Roth and wife to Edward N. Roth with intent to hinder and delay creditors; and, also, as a second cause of action, to set aside a transfer of certain personal property made by the same party to C. D. Robertson, with the like intent, and for the appointment of a trustee to administer the property for the benefit of the creditors of Roth under the insolvent laws of the state. This proceeding in error arises out of the second cause of action, so that no further notice will be taken of the first. The case was tried in the Common Pleas, and Robertson appealed from the judgment to the Circuit Court, where it was tried upon the issue made by the petition and the answer of Robertson. The answer of. Robertson was in substance that on February 18, 1896, Roth made a transfer to him as the agent of the Penn Mutual Life Insurance Company of the property in question. That he was not at the time the agent or trustee of the company, that it had no knowledge at the time of the transaction, and did not thereafter at any time assent to it. That he received the transfer only to such time as the insurance company should be advised and could take the matter into his own hands. That as soon as the company was advised, it refused to accept the same or ratify what had been done; and took a transfer of the property directly to itself, he, Robertson, having no further or other connection with the matter; and asked to be dismissed with his costs. The court made a finding of the facts which is as follows:
    “The plaintiffs, Desmond & Ryan, recovered a judgment February 24, 1896, before a justice of the peace, against the defendant, Charles G. Roth, for the sum of $141.08 and costs, which judgment is in full force and effect, and has been filed in the Hamilton county common pleas court, cause No. 106,547, for lien and execution, and no part of said judgment has been paid;
    “That on the 18th day of February, 1896, the defendant, Charles G. Roth, was insolvent, and among other debts owed The Penn Mutual Life Insurance Company, of Philadelphia, Pennsylvania, the sum of $2,800.00 for rent of the St Clair hotel, Cincinnati, Ohio. On February 18, 1896, in contemplation of insolvency the said Charles G. Roth executed and delivered to C. D. Robertson a certain bill of sale of certain chattel property owned by him, and which was then located at the St. Clair hotel, of which bill of sale a copy is hereto attached, as Exhibit “A” hereby referred to and made part hereof, O. D. Robertson at that time being the attorney for The Penn Mutual Life Insurance Company, and having in hand the collection of the indebtedness owing from Roth to that company.
    “The bill of sale to C. D. Robertson was made to secure him for the ($50.00) fifty dollars he advanced at the time the bill of sale was made, and to secure and pay the indebtedness of Charles G. Roth to The Penn Mutual Life Co., and was so accepted by said C. D. Robertson.
    “C. D. Robertson filed the bill of sale with the county recorder, and through one Frank D. Goodhue took possession of the property named in the bill of sale.
    “That it was C. D. Robertson’s intention to hold the said property transferred to him as above, unless after he should notify The Penn Mutual Life Insurance Co. of what he had done they should disapprove the same. But this intention was not made known to Charles G. Roth or his attorneys.
    “February 21st, in response to a telegram from C. D. Robertson, The Penn Mutual Life Insurance Co. sent one of its financial agents to Cincinnati to examine into and adjust the business matters pending between the insurance company and Charles G. Roth.
    “This agent, on behalf of the company, disapproved the bill of sale, repaid Mr. Robertson $50.00 which he had advanced Charles G. Roth at the time the bill of sale was made, and which $50.00 is referred to in the bill of sale, and C. D. Robertson assenting thereto, Charles G. Roth executed and delivered to the agent as representing the insurance company a second bill of sale, dated February 21, 1896, a copy of which is hereto attached as exhibit “B” hereby referred to and made part hereof.
    “The second bill of sale included the property named in the first, and contained some additional chattel property. Under this second bill of sale the insurance company took possession of the property named in it, and has held its possession ever since.
    “O. D. Robertson, on the arrival in Cincinnati of the financial agent of his client, turned over to the latter the entire matter of the indebtedness between Charles G-. Roth and The Penn Mutual Life Insurance Co., and had nothing further to do with it, the second bill of sale having been made between Roth and the company without the intervention of the said Robertson in any way.
    “On the 12th of March, 1896, the plaintiffs brought this action under the provisions of the Revised Statutes of Ohio, secs. 6343-6344, for the purpose of having the bill of sale of February 18, 1896, above referred to, declared an assignment in trust for the benefit of all the creditors of Charles G. Roth; C. D. Robertson was made party defendant to the action, to have him declared a trustee under the first bill of sale for the benefit of all the creditors of Charles G. Roth. The Penn Mutual Life Insurance Co. is not now, nor never has been, a party to this case.”
    Each exhibit referred to is a simple written transfer of the property in consideration of $50.00 and other valuable considerations, from Roth, in the one case, to Robertson as agent of the Penn Mutual Life Insurance Company; in the other it is a transfer from the same party to the Penn Mutual Life Insurance Company directly, — dated respectively February 21, 1896.
    On this finding of facts the court found as a matter of law that the transfer was an assignment for all the creditors of Roth and so decreed,' assessed the costs against Roth and Robertson, appointed a trustee and directed him to possess himself of the property, or in the event it had been disposed of to recover the value. This seems a little indefinite; but as both parties treat the language as authority to recover its value from Robertson we shall treat it in the same way, as that was doubtless the intention of the court. Robertson excepted to the judgment and prosecutes error to reverse it.

      M. L. Buchwalter and Robert O. Pugh, for plaintiff in error.
    The circuit court, in deciding the case, proceeded upon the idea that the plaintiff in error once having become a trustee for creditors, by the operation of Rev. Stat., secs. 6343-6344 upon the bill of sale made to him, February 18, 1896, no subsequent act of said Robertson or his grantor could relieve him of this responsibility. The authorities will show that the court was mistaken. For instance, it is well established that if the assignee of a fraudulent, or constructively fraudulent, transfer, sells the property to a bona fide purchaser without notice, neither the seller nor the buyer can be held to account to the creditors of the original assignor. Holmes v. Gardner, 50 Ohio St., 36; Webb v. Brown, 3 Ohio St., 246; Swift v. Holdridge, 10 Ohio, 232; Schultz v. Brown, 3 C. C. 609; 2 Circ. Dec., 353.
    It is apparent at once, therefore, that it is not true that a trust brought about by operation of the statute (Rev. Stat., secs. 6343, 6344) is absolute and final, so that it can not be divested or cut off by any subsequent action of the trustee.
    To this doctrine, however, there is a limitation— that, if after sale to a bona fide purchaser, the property in any way comes back to and remains in the assignee of the fraudulent conveyance, the trust for general creditors again attaches and can be enforced. Schultz v. Brown, 3 C. C., 609-611; 2 Circ. Dec., 353, affirmed by the Supreme Court without report (38 Bull., 356).
    An almost similar state of affairs will be found in the case of Hyde & Co. v. Olds, 12 Ohio St., 591; Gaylord v. Cramer, 1 Handy, 369.
    A most striking confirmation of the doctrine of law for which we are contending is found on examination of the Ohio decisions on this subject of fraudulent conveyances: Pendery v. Allen, 50 Ohio St., 121; Gashe v. Young, 51 Ohio St., 376; Pride v. Andrew, 51 Ohio St., 405; Lee v. Hennicks, 52 Ohio St., 177; Brinkerhoff v. Smith, 57 Ohio St., 610; Farmers’ Bank v. Miller, 9 C. C., 111; 6 Circ. Dec., 1.
    Examination shows that in each one of these instances the fraudulent assignee was in possession of the assigned property, at the time action was begun to charge him as trustee.
    The case of Mitchell v. Gazzam, 12 Ohio, 315, goes further than any other Ohio decision we have found. The circumstances were peculiar, and the assignee, in addition, had secured himself by taking indemnity from the creditors he had paid, and was, in any event, in no apparent danger of losing anything by the decision; but, without stopping to criticise, we call attention to the language on page 339, which confirms all that we claim.
    In the case above referred to (which is Swift & Nichols v. Holdridge, 10 Ohio, 231, and not Mahon v. State, which follows), the law, as we claim it is most explicity laid down; Hallowell & Co. v. Bayliss, 10 Ohio St., 536; the doctrine is again expressly recognised in the case of Starr v. Wright, 20 Ohio St., 97, at p. 107 of the opinion, citing in support Swift v. Holdridge, supra, and White v. Brocaw, 14 Ohio St., 339.
    To return to the other Ohio eases on the subject of fraudulent conveyances, we find, Bloomingdale v. Stein, 42 Ohio St., 168; Bloom v. Noggle, 4 Ohio St., 45; Harkrader v. Leiby, 4 Ohio St., 602; Dickson v. Rawson, 5 Ohio St., 218; Bagaley v. Watters, 7 Ohio St., 359; Feed Company v. Shute, 19 Bull., 180; 10 Dec. Re., 198.

      Dennis F. Cash and Province M. Pogue, for defendants in error.
    In the trial of this case before the referee he found it created a trust; the court of common pleas so found; the circuit court' so found—Desmond & Ryan v. Roth, 16 C. C., 483; 9 Circ. Dec., 204. That the law as laid down by the circuit court should be sustained by this court, we call attention, briefly, to the decisions with which the court is no doubt thoroughly familiar. Lee v. Hennick, 52 Ohio St., 177; Mass v. Miller, 58 Ohio St., 483; Penfield v. Allen, 50 Ohio St., 132; Gashe v. Young, 51 Ohio St., 377.
    The court in the foregoing cases has had before it transactions similar to the case at bar, an agent taking security. In the case at bar the security was for both principal and agent. The question of fraud does not have any bearing upon the issue. The only elements necessary to exist are that a conveyance was made, which is an assignment in trust in contemplation of insolvency with intent to prefer one or more creditors.
    We wish the court to keep clearly in mind the fact that eo instanti on the execution and delivery of this instrument to Robertson and his acceptance he became a trustee for the benefit of all the creditors of Charles G. Roth. This court has defined that principle clearly wherever Section 6343, Revised Statutes applies from the earliest cases to the present time. Dickson v. Rawson, 5 Ohio St., 218; Hyde v. Olds, 12 Ohio St., 594.
    * Recent decisions of this court have sustained the earlier ones. Brinkerhoof v. Smith, 57 Ohio St., 610.
    These citations establish the proposition that the transaction is stamped with a trust, immediately upon its acceptance, and this is so without reference to any creditors bringing a suit, and the trustee must account to his cestuis que trust, here all the creditors of Charles G. Roth.
    The purpose of Section 6343, Revised Statutes, was to give the creditor a right in the fund created for his benefit when the trust was complete, whether he assented to it or not, and regardless of whether his debt was reduced to judgment or not.
    The trustee cannot divest himself of the trust in the way it is claimed he did in the case, at bar. The court has defined his duty in Brinkerhoff v. Tracy, 55 Ohio St., 558.
    The trustee’s failure to perform this duty cannot shield him, however honest his intentions. He attempted to give his client — one of the beneficiaries of the trust — all of the trust estate to the exclusion of others equally meritorious. He has no one to blame for his predicament but himself. His attempt was futile withoutthe consent of all the cestuis que trust. The assignor had no right to take back the trust estate. Keen v. Hall, 31 Ohio St., 110.
    If the court should find it necessary to go outside of the state to consider other authorities than those referred to, we will call attention to the decisions from other states, first, that the assignment became effective immediately on the acceptance by the assignee, Robertson, and that no act of the assignee could place it back in tbe assignor’s hands by tbe revocation of bis power by tbe assignor. Union Nat. Bank v. Bank of Commerce, 94 Ill., 271; Brown v. Chamberlain, 9 Fla., 464, 479; Mackellar v. Pillsbury, 48 Minn., 396; Shelldon v. Smith, 28 Barb., 594; Walker v.Crowder, 2 Ired. Eq. (N. C.), 478; Ingram v. Kirkpatrick, 6 Ired. Eq., 463; Hall v. Dennison, 17 Vt., 310; Furmon v. Fisher, 44 Tenn., 626; Baker v. Ham, 71 Tenn., 505.
    And, second, that neither by tbe joint act of tbe assignor and assignee can they deprive tbe creditors of tbe right to enforce tbe trust. In re Golden, 110 Pa., 591; Becker New Cases (N. Y.), 379;Alpaugh v. Robertson, 27 N. J.,(Eq.), 96.
    Again, complaint is by plaintiff in error made that tbe insurance company is not, a party to tbe proceeding. It is too late to raise that question; it should have been done by some proper pleading. We have a right to elect whether we shall follow tbe property or bold tbe trustee responsible. Enc. of Law, vol. 27, p. 261; Gashe v. Young, 51 Ohio St., 388, 389; Otmer v. Piatt, 44 U. S. (3 How.), 333, (Story); Bump on Fraudulent Conveyances, Sec. 537 (Sec. 557); Clapp v. Nordemeyer, 25 N.R., 71.
    We therefore claim,
    First: That this transaction comes clearly within section 6343, of tbe Revised Statutes. ,
    Second: That tbe trust arose eo instanti upon tbe execution and acceptance of tbe bill of sale, February 18, 1896.
    Third: That it was tbe duty of tbe trustee, Jttobertson, to file tbe bill of sale in tbe probate court.
    Fourth: That there was no power of revocation by tbe assignor, nor could tbe trustee divest himself of bis trust in tbe way claimed so as to relieve him from accounting to all bis cestuis 'gue trust for tbe property or its value, and therefore the judgment of circuit court should be affirmed.
   Minshall, J.

We do not differ with counsel for the defendant as to the legal effect of the transfer of the property made by Roth to Robertson, February 18, as agent of the insurance company. Having been made in contemplation of insolvency it became at once a trust for the benefit of all creditors of Roth according to the amount of their claims. This is too well settled by the decisions of this court to admit of dispute. Dickson v. Rawson, 5 Ohio St., 218; Brinkerhoff v. Smith, 57 Id., 610; Lee v. Hennick, 52 Id., 180; Maas v. Miller, 58 Id., 483; Gashe v. Young, 51 Id., 376. The question, however, presented in this case is not what was the legal effect on the property transferred, as found to have been made, but what individual liability, if any, attached to Robertson to whom it was made in the first instance? It was made to him for the benefit of another. Hid the law impose on him the legal duty of retaining the porperty and administering it for the benefit of all the creditors; or might he renounce the trust before any steps had been taken by creditors and restore the property to the assignor? We think he could, and -without making himself individually liable to anyone. The statute it will be observed imposes no such duty on the party to whom such an assignment is made. The duty of the probate court to act by the appointment of a trustee, arises only when a transfer has been declared by the proper court at the suit of a creditor, to have been made in trust to prefer one or more creditors (clause in section 6344, Revised Statutes ) ; and its duty then is to appoint a trustee to .administer the property for the benefit of all creditors. . By such judicial action the property is taken from tlie hands of the person to whom the assignment was made, and placed in the custody of a trustee appointed by the court; and all the rights and duties of the party selected by the debtor in respect to the property are terminated. This judicial action consummates the transaction as an assignment for the benefit of creditors; but without doubt relates back to the assignment made to prefer creditors, as against all who take with notice of the facts. The right then of one who has taken an assignment in trust to prefer one or more creditors to renounce the transfer and restore the property before any proceedings are commenced by a creditor, would seem clear, or even afterwards, as such renunciation would be no impediment to the rights of creditors in pursuing the remedies provided them by statute. After the transfer has once been made with intent to prefer, a trust is impressed on the property in favor of the creditors that cannot be affected by anyone. Its trust character follows the property into whose ever hands it may come with notice. It can be established, and the requisite judgment had as to its character, whether the party to whom the assignment was made retains possession of the property or not. His restoring the property in no way affects the character of the trust that had been imposed on it by law; and would seem to be in harmony with the spirit and policy of the statutes. It amounts to no more than a renunciation of a trust forbidden by law, without affecting the rights of general creditors arising from the transaction.

Inasmuch, therefore, as Robertson, as soon as his acts were disaffirmed by the company, restored the property and renounced any claim to it, we are unable to see the justice or necessity of holding him for the value of it. What did the creditors lose thereby? Nothing. The trust imposed upon the property remained unimpaired; and also the right of any one of them to commence a suit in the proper court, making necessary parties, to have the character of the transfer ascertained and determined, and a trustee appointed to administer the trust. Whether Robertson retained the property or not in no way impaired this right. If he had retained the property or disposed of it, other than by restoring it to Roth, a different case would have arisen. In such a case he might well have been required to account for it, or its value. This is fairly deducible from accurate principles as well as from the following cases: Swift v. Holdridge, 10 Ohio, 230; Hallowell & Co. v. Bayliss, 10 Ohio St., 536, 543; White v. Brocaw, 14 Ohio St., 339, 341; Starr v. Wright, 20 Ohio St., 97, 107. That these cases relate to instances' where there had been a fraudulent conveyance does not affect the principle on which they proceed. So far as moral turpitude is concerned, there is little or no difference between one who takes a conveyance in fraud of creditors and one who takes a conveyance in trust for the benefit of one or more creditors; either in law is a fraud on general creditors. So that if a fraudulent grantee may, by restoring the property, avoid being held as a trustee, there is no reason why a fraudulent grantee in trust, may not avoid being held liable to general creditors by restoring the property and renouncing any claim to it as trustee or otherwise, especially where his act is not shown to have worked any prejudice to other creditors.

The purpose of the statutes requiring conveyances in fraud of creditors to be set aside at the suit of any creditor, and such as are made to a trustee to prefer one or more creditors, to be declared for the benefit of all creditors, is not to inflict punishment or penalties on any of the parties, but to deprive them of the advantages thereby sought to be attained; neither the fraudulent grantee nor the preferred creditors are deprived of their rights as general creditors. Pendery v. Allen, 53 Ohio St., 251; Jaminson v. McNally, 21 Ohio St., 295.

Such assignments are not within section 6335, Revised Statutes. Assignments within this section are voluntary assignments, made for the benefit of all the debtor’s creditors. Those provided for in sections 6343 and 6344 arise from operation of law contrary to the purpose of the parties; and there is no authority in any court to administer them for the benefit of all creditors until their character has been determined and declared by a proper court. The probate court has no such power. In Wambaugh, Trustee v. Insurance Co., 59 Ohio St., 228, the assignment was on its face a voluntary one and expressed to be for the benefit of all the assignor’s creditors, and is not at variance with the views here expressed.

Our attention is called to what is said in Brinkerhoff v. Tracy, 55 Ohio St., at p. 572, that “The legal duty of the trustee, Brinkerhoff, was, under the circumstances, disclosed by the petition, to have filed the agreement with the mortgagor in the probate court, and have had the trust administered as an assignment for the benefit of all the creditors of the plaintiff; for such, in law, was its legal effect.” This was a suit to recover damages for the failure of the trustee to carry into effect the provisions of a mortgage given for the benefit of certain of the plaintiff’s creditors. It was regarded as against public policy, and a recovery was denied. The language was not material to the determination of the question, was made without proper consideration, and is mere obiter.

There seems to have been a defect of necessary parties to the suit, as the insurance company, one of the real parties, was not made a party. But as it is our judgment that Robertson should have been dismissed as prayed for, it is not necessary to consider the question.

■Judgment reversed, and judgment for Robertson.


author: Williams, J.

text:
    Leger et al. v. Warren.

      Person arrested without a warrant — Cannot "be detained longer than necessary to obtain warrant — Right of action for false imprisonment, when — No defense by arresting officer that he acted under orders of superior.

    1. A person, who has been arrested without a warrant cannot lawfully be held in custody for any longer period than is reasonably necessary to obtain a legal warrant for his detention. Where he is held for a longer period without such writ or other authority from a competent court, he has a right of action for false imprisonment against the officer or person who made the arrest and those by whom he has been so unlawfully held in custody.
    2. In such an action it is not a defense for the officer who made the arrest that he acted under orders from a superior officer. By the failure to procure the necessary warrant or authority for the prisoner’s detention, the imprisonment becomes unlawful from the beginning, and all concerned in it are equally liable.
    (Decided April 24, 1900.)
    Error to the circuit court of Franklin county.
    Action for damages for wrongful arrest and imprisonment. Judgment for- plaintiff, affirmed by tlie circuit court. Affirmed.
    The defendant in error, David H. Warren, brought his action in the court of common pleas of Franklin county, on the 2nd day of February, 1897, against Michael Leger and three other police officers of the city of Columbus, and the sureties on their official bonds, to recover damages for his unlawful arrest and imprisonment by those officers, in January,, 1897.
    The petition alleges “that defendants, Michael Leger, Jacob Miller and Andrew Frank did, on or about the 19th day of January, 1897, near the hour of midnight of said day, at the home of plaintiff, in the city of Columbus, Ohio, unlawfully, maliciously and without any reasonable or probable cause, arrest plaintiff, and with force and violence, and against the will of plaintiff, unlawfully place plaintiff in a patrol wagon and carried him to the city prison, where plaintiff was, 'by the defendant Patrick Kelly, chief of police of said city, forcibly, unlawfully, maliciously and against the will of plaintiff, placed in a cell in said prison and confined therein from said midnightofsaidl9th day of January, 1897, to noon of the 25th day of January, 1897; that at the time of his said arrest and imprisonment, and many times thereafter, he demanded of said defendants, Leger, Miller, Frank and Kelly, that they inform him what crime he was charged with having committed for which he was so arrested and imprisoned, which information said defendants refused to give plaintiff; that many times while so imprisoned plaintiff demanded of the defendant Kelly that written charges be filed against him, and that he have a hearing in the police court of said city on said charges, so to be filed, all of which said defendant Kelly refused to do, and that many times during said false imprisonment plaintiff demanded of said defendant Kelly that he be allowed to have the assistance of an attorney-at-law to advise plaintiff as to his rights and to secure his release from said illegal imprisonment, which the said defendant Kelly refused to do. Plaintiff further avers that he was by said defendant Kelly unlawfully confined as aforesaid in a cell, the floor of which was, for a period of two days of said confinement, covered with water. On account of said dampness and the unhealthy condition of said cell, plaintiff became violently ill. While he was thus ill, defendant Kelly refused to allow plaintiff the attendance of a physician, although requested so to do by plaintiff. On the 21st day of January, 1897, plaintiff was taken from said cell by defendant Kelly, handcuffed to one of the common prisoners of said prison, and compelled to march with a number of felons along the public streets of said city, in full view of a large concourse of people, to the photograph gallery of -, at No. 276% South High street, in said city, where he was, by said defendant Kelly, compelled to undergo the shame, humiliation and disgrace of being photographed as a common felon. Said photograph was so taken by defendant Kelly for the purpose of placing the same in the rogues’ gallery, and has, by said Kelly, been exposed to view of a large number of persons whose names plaintiff does not know, and therefore cannot allege the same. Plaintiff was taken by said defendant Kelly from his cell many times and paraded before a large number of citizens of said city whose names he does not know, and consequently is unable to plead them. Plaintiff further alleges that by reaof said false arrest and imprisonment he has been to great loss and expense, in this to-wit: Plaintiff is a paperhanger and decorator by trade, and his services per day in that business are reasonably worth $3.50. The time lost while so imprisoned was reasonably worth the sum of $17.50. He was put to the expense of $25.00 in securing the services of an attorney-at-law. By reason of said false arrest and imprisonment, plaintiff lost a job of work, the reasonable profits of which were worth the sum of $40.00. By reason of the wrongs and grievances committed herein by said defendants, Michael Leger, Jacob Miller, Andrew Prank and Patrick Kelly, his business has been damaged and he has suffered great mental anguish, great humiliation, shame and disgrace and much physical suffering. By reason of the premises plaintiff has been damaged in the sum of $5000.00.”
    The remaining allegations of the petition relate to the execution of the offical bonds of the police officers, with their respective sureties, who are made defendants, the condition of each bond requiring that the officer “shall pay any and. all damages that may be adjudged against him by any tribunal, for the illegal arrest, imprisonment or injury by him of any person while he shall hold said office.”
    No objection appears to have been made to the joinder of the sureties, in the action, at any stage of the case.
    The answer, which was filed by Patrick Kelly “for him and codefendants, admits that the defendants, Michael Leger, Jacob Miller, Andrew Prank and Patrick Kelly are police officers of the said city of Columbus, Ohio, as described in plaintiff’s petition, and that Louis Seidensticker, Joseph Kolb, Joseph B. McDonald, Cyrus Huling, James Ross, Henry A. Reinhard, Dennis Kelly and John E. Drugan are the bondsmen of said patrolmen; defendants deny each and every other allegation in plaintiff’s petition contained.” And it avers: “That on the 12th of January, 1897, at the city of Columbus and county of Franklin, Ohio, one Joseph McVey and other persons, whose full names are unknown to this defendant, into a certain storehouse of one Charles Mistereck, there situate, did unlawfully, maliciously and forcibly break into with intent then and there, and thereby the personal property of said Charles Mistereck in said storehouse then and there being, unlawfully to steal, take, and carry away, and eighty pairs of shoes of the value of one hundred and sixty dollars ($160.00) of the personal property of the said Charles Mistereck in said storehouse then and there being found, then and there unlawfully • did steal, take and carry away. The defendants, Patrick Kelly, Michael Leger, Jacob Miller and Andrew Frank, on or about the 19th day of January, 1897, had good reason to believe and did believe that the plaintiff above named unlawfully and fraudulently did receive the personal property above described, belonging to said Charles Mistereck, then lately before stolen, he, the said plaintiff, then and there well knowing said property to have been stolen as aforesaid; and thereupon the said officers, Patrick Kelly, Michael Leger, Jacob Miller and Andrew Frank, having good ground and reasonable cause to believe that said David H. Warren was guilty of receiving and concealing stolen property, knowing it to have been stolen, which crime as above described is a felony in the state of Ohio, punishable by imprisonment in the Ohio state penitentiary, did cause and procure the arrest of said David H. Warren and imprison him in a cell in the city prison. The defendants deny that they in any way used violence towards the plaintiff, and deny that the arrest and imprisonment was without cause. ’ ’
    The new matter in the answer was controverted by reply, and the cause proceeded to trial to a jury. The plaintiff obtained a verdict for $1,000.00, on which judgment was rendered; and that judgment having been affirmed by the circuit court, error is prosecuted here to obtain the reversal of both courts.The only question deemed of sufficient importance to call for a report of the case arises upon the charge of the court, which, with such facts as may be relevant,will be more particularly noticed in the opinion.

      G. D. Barters and David B. Sharp, for plaintiffs in error.
    In the light of the evidence we believe that the learned judge erred in this charge to the jury. Under it the jury was compelled to hold the arresting officers liable for the wrongful act of the chief of police. Hawley v. Butler, 54 Barb., 490; Dilcher v. Rapp, 73 Ill., 266.
    Cases decided by courts of inferior jurisdiction of course have no binding effect upon this one, but see Raitz v. Green, 13 O. C. C., 455; 7 Circ. Dec., 238.

      Kinkead, Menoine cG Rhoads, for defendant in error.
    The rule laid down in the Six Carpenter’s Case, 4 Coke, 146, that if a man abuse an authority given him by the law becomes a trespasser ab initio, has never been questioned.
    In the case of Tubbs v. Turkey, 3 Cush., 438, the precise question presented here was presented to the court, and it was held that the rule laid down in the Sis Carpenter’s Case applied to cases in which the arrest was legal, but the subsequent detention was illegal and unreasonable. Brock v. Stimson, 108 Mass., 520; Pastor v. Regan, 30 N. Y. Sup., 657; Harris v. R. R. C., 35 Fed. Rep., 116; Cochran v. Toher, 14 Minn., 385; S. S. Co. v. Williams, 69 Ga., 252; 46 Ga., 80; State v. Freeman, 86 N. C., 683; Dillon Mun. Corp., sec. 211;
      Brock v. Stimson, 11 Am. Rep., 390 (108 Mass., 520) ; Judson v. Reardon, 16 Minn., 431; Phillips v. Fadden, 125 Mass., 198; State v. Parker, 75 N. C., 249; 11 Gray, 373; Sands v. Graves, 48 N. Y., 653; 77 Md., 263; Linnen v. Banfield, Sup. Ct. (Mich..), 1897, Vol. 72, N. W. Rep., 1.
   Williams, J.

The following are the material parts of the court’s charge, of which the plaintiffs in error complain:

“It was the duty of the defendants, whether they caused the.arrest and imprisonment, or made the arrest and imprisonment, to carry the plaintiff without unreasonable delay before a magistrate of lawful competency for that purpose, to accuse him there according to the forms of law, and obtain the necessary magisterial sanction for any further detention of him. The defendants, making the defense here (I mean all the defendants except the sureties), did not comply with the command of the law, which required them to take him before a magistrate and obtain a warrant for his arrest. They have not shown any lawful reason for omitting to do this. He was detained in prison an unreasonable time without the filing of an affidavit and the procuring of a warrant. Their failure to comply with this law, made them trespassers from the beginning of the arrest. The permission which the law gave them to arrest and imprison him originally because there was reasonable cause for it, without first procuring a warrant, filing an affidavit and procuring a warrant, was given to them on the condition that they would not detain him longer than was reasonably necessary to enable an affidavit to be filed and a warrant to be procured. Not having complied with that condition, the fact that he was arrested in the first instance for reasonable cause is not even a colorable defense. Three of these defendants were subordinate officers of the superintendent of police. They did what they did pursuant to orders given by one who had a right to command, presumably. That may, as it ought to, make you feel that they ought not, in a moral sense, be held responsible in damages. But the orders of a superior, or of one who had a right to command them, is not a legal reason for their omission to comply with the law which required them, in a reasonable time, to file an affidavit and procure a warrant. The court having this conception of the law applicable to the case, there is nothing for you to do but to assess the damages.”

It was shown on the trial, that the plaintiff was arrested by the defendant officers without warrant, as alleged in the petition, and was imprisoned after such arrest for a period of more than five days, without any warrant for his detention, and without any charge having been made against him before any competent tribunal, or opportunity allowed him for a trial; that during his imprisonment he frequently demanded to be informed of the nature of the charge on which he was detained, and to be taken before a proper court for a hearing thereon; and that, at the end of the period named, when he was discharged from prison, no complaint had been filed against him, nor trial allowed him. These facts were not disputed. The evidence of the defence was directed entirely to the establishment of good cause for the arrest, and to the subject of damages. There was no impropriety, therefore, in the court treating as undisputed, the facts above stated and no complaint is urged here on that account. The objection made, is to that part of the charge by which the jury were instructed, in substance, that though the defendants making the arrest or causing it to be made, had good cause therefor, that did not justify the imprisonment of the plaintiff thereunder for a longer period than was reasonably necessary to enable the defendants to obtain a warrant, or authority from some competent tribunal, for his further detention; and, that his continued imprisonment without such warrant or authority, rendered them liable as wrongdoers from the beginning, leaving only the question of damages for the consideration of the jury. In this charge we think there was no error. It is provided by Section 7130, of the Revised Statutes, that:. “When a felony has been committed, any person may, without a warrant arrest another who he believes, and has reasonable cause to believe, is guilty of the offense, and may detain him until a legal warrant can be obtained.” And Section 7143, contains the provision that: “If it becomes necessary, for any just cause, to adjourn the examination of the accused, the magistrate may order such adjournment, and commit the accused, from time to time, for safe keeping, to the jail of the county, until the cause of the delay is removed, and no longer; but the whole time of such confinement in jail shall not exceed four days; or, the officer having in custody any such person may, by the written order of the magistrate, detain him in custody in some secure and convenient place, other than the jail, to be designated by the magistrate in his order, not exceeding four days.”

The right to make arrests without warrant, is conferred by the statute in order to prevent the escape of criminals where that is likely to result from delay in procuring a writ for their apprehension; and it was not the purpose to dispense with the necessity of obtaining such writ as soon as the situation will reasonably permit. To af ford protection to the officer or person making the arrest, the authority must be strictly pursued; and no unreasonable delay in procuring a proper warrant for the prisoner’s detention can be excused or tolerated. Any other rule would leave the power open to great abuse and oppression. The detention of the plaintiff in prison for a period of five days, and more, without any writ, or order of any court, and in disregard of his repeated demands to be given a hearing, was without excuse or palliation. None was offered. It was a palpable and arbitrary abuse of official powar Not having pursued their authority to arrest without warrant, by failing to obtain within a reasonable time, a Avrit or order for the plaintiff’s detention, the defendants placed themselves in the same situation as if they had originally acted without authority. It is a familiar rule that one Avho abuses an authority given him by law becomes a trespasser ab initio. That rule has often been applied in cases like the present one. In Brook v. Stimson, 108 Mass., 520, it was held that: “An officer who arrests an offender without warrant, by authority of a statute which authorizes such arrest only as preliminary to taking him before a court, is liable for assault and false imprisonment if he omits to take him before the court.” Numerous authorities for the similar application of the rule are collected in the opinion of the court in that case, and many others might be cited, some of which are referred to in the brief of the defendant in error. The arresting officer, in such case, cannot justify the holding of the prisoner without warrant, on the ground that time is necessary to investigate the case, and procure evidence against him. Section 7143, of the Revised Statutes, already quoted, provides for cases where such delay becomes necessary, by authorizing the magistrate before whom the accused is taken to adjourn the examination from time to time, and commit the accused until the cause of the delay is removed. But that section forbids the imprisonment for any period exceeding four days.

In behalf of the plaintiffs in error, Leger, Miller, and Frank, it is contended that, as they were subordinate officers acting under orders from the chief of the police force in arresting the defendant in error and delivering him into the custody of the patrolmen, who conveyed him to the city prison in obedience to the chiefs orders, they should not be held responsible for' his subsequent imprisonment, nor for the omission to obtain the necessary warrant and bring him to trial. But the delivery of the plaintiff after his arrest, into the custody of another person, to be by him taken to prison, could not, we think, absolve the arresting officers from the duty required of them to obtain the writ necessary to legalize his further imprisonment. If it could, the imprisonment might with impunity be prolonged indefinitely by the change of custodians and places of confinement, at short intervals. The arrest having been made without warrant, it was necessary, in order to preserve the legality of that action, that the proper steps should be taken to prevent the further detention of the prisoner from becoming unlawful; for, as we have seen, unless those steps be taken, all legal protection for such arrest ceases, and the arresting officers become wrongdoers from the beginning, liable as such, equally with those by whom the unlawful imprisonment is continued. If the arresting officers choose to rely on some other person to perform that required duty, they take upon themselves the risk of its being performed, and unless it is done in proper time, their liability to the person imprisoned, is in ho wise lessened or affected. There was no order of a superior officer in this case that did or could prevent the defendants who made the arrest from complying with the requirement of the law in the respect indicated, nor excuse their omission to comply therewith.

Judgment affirmed.


author: Shauck, C. J.

text:
    The City of Hamilton v. Ashbrook.

      Municipal corporation liability — Gity not liable for damages from overflow in natural water course, when — Statutes do not impose duty upon city to protect low lands, when — Extent of obligation of municipality to construct levees.

    1. A municipal corporation is not liable for damages caused by such increased flow in a natural water course as results from the improvement of lots and streets within the territory whose waters naturally drain into such water course. (Springfield v. Spence, 39 Ohio St., 655, followed and ap- ' proved.)
    2. Although the statutes confer upon municipalities situated upon natural water courses authority to levy taxes to acquire sites and construct such levees as public considerations may require, they do not impose the duty of exercising that authority for the protection of low lands from overflow by natural water courses, nor to indemnify the owners of such lands on account of injuries resulting from such overflow.
    3. When a municipality, acting upon a license given to it by the owners of lands along a natural water course which flows by or through it, constructs levees for the purpose of confining its waters, it does not thereby undertake that the levees are sufficient to protect such lands from overflow, nor does it engage to maintain them.
    (Decided April 24, 1900.)
    Error to tbe Circuit Court of Butler county.
    Mrs. Ashbrook brought suit in the court of common pleas against the city of Hamilton to recover damages which resulted from the overflowing of her ■lot situated within said city in May, 1893, whereby ■her vegetables, hot beds and a rope walk situated on said lot were injured. The substance of her amended petition is that a drain or sewer had been constructed by the city and used by it as a part of its sewer system, the sewer being constructed by the erection of dykes or levees on the surface of the ground about twenty feet apart thereby creating a channel or waterway across the low grounds of the. plaintiff and others for the purpose of conveying the surface water to the Great Miami river about one-third of a mile distant from her premises. She alleged that surface water from a large portion of the city was collected by its drainage system and thrown into the channel so constructed, and that the banks of said channel were negligently and insufficiently constructed and maintained so that they were insufficient to resist the weight of water which might be expected to be, and which upon this occasion was, thrown against them, and that from this the overflow of her ground and the consequent injury occurred. She further alleged that the city had constructed bridges for its streets over its said waterway and that said bridges were so low as to interfere with the flow of water in said channel.
    In its answer the city admitted that it is a municipal corporation of the grade and class alleged in the amended petition, and that at the date alleged and for several days prior thereto there were heavy rains in and about the city. It also admitted the, existence of said waterway which was known as Crawford’s Run flowing past the premises of the plaintiff, and alleged that upon the day of the injury to the plaintiff’s premises the water in the river had in consequence of said rains reached an unusual stage, and impeded the flow of the water in the run by the backing up of the waters of the river by which the breaking of the levee was occasioned. It denied all the allegations of the petition which were not expressly admitted.
    The reply was a general denial of the allegations of the answer.
    There was no important conflict in the evidence introduced upon the trial. The drain referred to is a. natural water course known as Crawford’s Run as' the original petition had. alleged it to be. It flowed by the low lands of the plaintiff and others lying near the Miami river in a winding and somewhat ill-defined course discharging its waters into the river about one-third of a mile away. The development of the city had been- attended by the establishment of grades, the erection of houses and other buildings and in the improvement of streets and sidewalks resulting in a somewhat more rapid flow of water from the area which naturally drained into Crawford’s Run; but there was no evidence tending to show that the city had ever added to the area of drainage. In July, 1868, the proprietors of the lots and lands in the vicinity executed to the city the following instrument :
    Whereas, it is proposed by the city council of the city of Hamilton to straighten, widen and deepen the sewer or drain leading from the Miami canal westwardlv to the Miami river in the south part of the city of Hamilton, Ohio, and along what is known as Crawford’s Run so that the direction of said sewer or drain shall be as follows, to-wit:
    (Courses and distances omitted.)
    And whereas in thus following said direction for said sewer or drain it will be necessary to enter upon and occupy for that purpose certain lots and land owned by the grantors herein as well as to make the necessary excavations thereon for the construction of said sewer or drain. Therefore, in order to afford to the city of Hamilton all proper facilities for the straightening, widening and deepening of said sewer or drain between the points named, we, the undersigned owners of real estate along the line of said contemplated improvement, do hereby give, grant and convey to said city of Hamilton the right of way on the real estate owned by us respectively along the line of said sewer or drain to the end that the same may be straightened so as to run in the direction above described. We also grant to said city of Hamilton the right to make all proper excavations and embankments in order to construct said improvement, upon our respective tracts of land along the line of said sewer or drain as above described, said excavations to be in all cases upon the line of said drain or sewer, hereby releasing all claim of damages or compensation on account thereof.
    In witness whereof we have hereunto set our hand and seal this 27th day of July, 1868.
    This instrument was executed by Mrs. Ashbrook’s grantor. Pursuant thereto the city then erected the dykes or levees whose insufficiency is alleged, and did all that it ever did to affect, in any way, the flowage of the water in the stream with the exception of unimportant and infrequent repairs of the dykes or levees which it then constructed. When the levee in front of Mrs. Ashbrook’s lot gave way heavy rains had fallen, large quantities of water had collected in Crawford’s Run and a very high stage had been reached by the water in the river, from which it resulted that the levee became soaked and weakened so that it gave way.
    It is not entirely clear whether at the precise time when the break occurred the water in the run was still flowing toward the river or the waters of the river had set the current in the opposite direction. It is, however, undisputed that within a very brief time thereafter the water was flowing rapidly from the river, that the surface of the water in the river was more than seven feet higher than the portion of Mrs. Ashbrook’s lot nearest the levee, and that when the water stood upon her lot at its greatest depth its level was substantially that of the water in the river.
    The city solicitor requested the court to give the following instructions which were refused:
    I. It having been shown by record evidence that at the time of the improvement of Crawford’s Run by straightening, deepening and widening the same that plaintiff’s grantor, then the owner of the property described in the petition, in writing, agreed to said improvement and released the city from all claims for damages by reason thereof, and there having been no evidence offered to contradict said agreement, I charge you that plaintiff can not now complain by reason of the defendant’s having made said improvement whether the same is an artificial or natural water-way.
    II. Before you can find for the plaintiff under the evidence adduced you must find that, at or before the time of the improvement of Crawford’s Run by deepening, widening and straightening the same, and erecting banks, or at some time since said time and prior to the injury complained of, said city agreed with plaintiff or her grantor and bound itself to • maintain said banks; and unless you find that there was such an agreement your verdict must be for defendant.
    The jury were instructed generally that if the city used this Run as a part of its drainage system it was bound to use ordinary care in constructing and maintaining its banks. The portion of the charge which regarded most closely the evidence in the case was the following:
    “If this drain was so located and constructed that in times of high water in the river, the water backed up the channel of the drain and thereby increased the volume of water therein, and the pressure against its banks, it was the duty of the city authorities, if the city maintained and used the drain, to take all reasonable precautions to render the banks of sufficient strength to resist such pressure, and retain such increased volume of water.”
    The jury returned a verdict in favor of Mrs. Ash-brook for the injuries shown to have been done to her property. The city’s motion for a new trial was overruled and a judgment was entered upon the verdict. In the circuit court the judgment of the common pleas court was affirmed.

      O. R. J1 aril:off, City Solicitor, and Ed. E. Jones, for plaintiff in error. •

      Morey, Andrews & Morey, for defendant in error.
   Shauck, C. J.

We do not find in the briefs of counsel for Mrs. Ashbrook any claim that the system of drainage adopted by the city enlarged the area which drained into this natural water course. That view of its liability has not appeared in the case since the filing of the amended petition. Nor does it appear to be the view of counsel that the city is liable for the increased flowage of water resulting from the improvement of property within the area of natural drainage. That a municipality is not liable on that account is settled in Springfield v. Spence, 39 Ohio St., 665. Nor could it be maintained upon the evidence in this case that the levees were insufficient to confine the water which actually came from the area of natural drainage. The liability of the city is to be determined in view of the fact, which no evidence in the case obscures, that if at the time of this occurrence the site of Hamilton had been a wilderness, the land now owned by Mrs. Ashbrook would have been covered by water to the same depth. There being no evidence to show that the city caused the water to flow upon her land, we have to inquire whether it is liable for permitting it to flow there.

We do not infer from the charge that such a liability was supposed to result from the erection of levees in 1868 upon the execution of the instrument of that date. That instrument was but a license, and what the city did in the construction of the levees was its execution. No consideration passed from the signers of the instrument, nor did it contain terms binding the city to the construction of levees of sufficient strength to exclude back-water from the river, nor to maintain such levees as it might construct. That it was not intended to impose an obligation upon the city is to be inferred from the fact that it did not execute it. What the city then did indicated the extent to which those then in charge of its affairs thought that public money might properly be used for the protection of its streets and of the neighboring lands from inundation. If they had authority to create a future liability in that regard, and thus to forestall the judgment of their successors upon that question, it is quite clear that they did not attempt to exercise it. The liability of the city was not greater after than before the execution of the license of 1868. The trial judge may have been justified in refusing to instruct that the city was not liable except upon an agreement, since there was no evidence of any agreement affecting the subject of the action.

When in the portion of the charge quoted in the statement of the case, and in other portions of it, the trial judge called Crawford’s Run “a drain” he invited himself to the commission of error. And in that, and other portions of the charge, the jury was authorized to draw an inference unfavorable to the city if it used the waterway. It did not, according to any evidence in the case, use it otherwise than as a means of escape for the surface water which flowed into it from the natural inclination of the ground. Such use by cities of streams which flow through or by them is universal and inevitable. It is inevitable because of the persistent tendency of water to seek a lower level. We look vainly for the foundation of such a liability as is contemplated in the instructions given. A city may be held in damages for failure to perform its contracts, for wrongs which it perpetrates and for omissions of duties imposed upon it by law. Here was neither contract nor wrong. What imposed duty was omitted? None is called to our attention. To justify this recovery, the omission would necessarily be of a municipal duty imposed upon the city to exercise the power of taxation for the private purpose of giving low-lying lands which are subject to overflow a value equal to that of those more favorably situated. No statute imposes such a duty. The case does not require us to say that no such duty could be imposed. Levees are public works. The authority to acquire sites for them is conferred by Section 2232 of the Revised Statutes; and that to levy taxes for their construction by Section 2683. The terms of the statutes impose no duty. They are mere grants of authority which may be exercised or not according to the discretion of the proper municipal authorities in view of the public considerations by which its exercise might be affected. Since it was not the duty of the city to make any provision to protect these lands from overflow by the waters of the river it is plain that it is not liable on account of the inadequacy of the provisions which it saw flt to make. The instruction which would most certainly have led to the right verdict does not appear to have been requested. The jury should have been directed to return a verdict in favor of the city.

Judgments of the circuit and common pleas courts reversed.