author: Price, J.

text:
    Nonamaker et al. v. Amos, and The Buckeye Pipe Line Company.

      Oil lease providing for payment of royalty in oil by lessee to lessor — Royalty may be increased or decreased by parol agreement, when.

    Where an oil lease provides, that in consideration of the grant therein made, the lessees will yield and pay to the lessor as royalty, a certain share of “the oil produced and saved from the premises,” the parties to the lease may subsequently, for a consideration, increase or decrease the royalty by parol agreement, and such agreement is not within the statute of frauds.
    (No. 9320
    Decided December 22, 1905.)
    Error to the Circuit Court of Wood county.
    On the nineteenth day of December, 1903, the. defendant in error, Jacob J. Amos, commenced an action in the court of common pleas against the plaintiffs in error and The Buckeye Pipe Line Company, to enforce specific performance of the conditions of an oil lease, and for an accounting for his share of all the oil produced under said lease. .
    He avers in his petition that the plaintiffs in error, George Nonamaker, Peter Finkler and Henry C. Bacon, • are jointly interested in the work of operating for and producing oil from his lands in Wood county, under a written lease between them, dated October 11, 1902, which contained the provision that “for the consideration of one dollar and other valuable considerations the lessor demised and granted to the said lessees the said sixty acres of land for the purpose and with the exclusive right of operating thereon for gas and oil, upon the express conditions that the said named defendants,

      The answer of the lessees, plaintiffs in error, admits the terms of the lease as stated by the lessor, but further avers “that upon the completing and testing the first well on said premises, they became convinced that the amount of oil which could be produced from said well, or from any well or wells on said lands, would be so small that said premises could not be profitably operated for oil at a royalty of one-sixth.. That thereupon, they so informed the plaintiff, and stated that they would at once surrender their rights under said instrument and abandon the premises unless he would reduce the royalty prescribed in said instrument from one-sixth to one-eighth, and that they would have immediately abandoned, but that the plaintiff made and entered into the following verbal agreement with them, viz.: that in consideration of their continuing to operate said premises for oil, the royalty should and would thereafter be oné-eighth instead of one-sixth, as prescribed in said instrument, and that if at the end of thirty days after the completion of any well, the production of the land should amount to an average of five barrels per day for each well in operation, the royalty should be one-sixth, as specified in said instrument; and furthermore, that if at the end of thirty days from the completion of any well on said lands, the production of said lands should amount to an average of ten barrels per day for each well, the royalty, in that event, should be one-fourth of the production; that in consideration of said agreement, these defendants continued in possession of said lands and at a large expense to themselves, drilled, completed and equipped thereon five additional wells, which, with the first well, they have continuously operated, which they would not have done but for said agreement; that at no time at or after thirty days from the completion of any of said wells has the total production of said lands averaged more than two barrels per well per day.”
    The defendants then say that they have always been willing to account for the one-eighth royalty and willing to sign a division order to that effect.

      To this answer plaintiff replied denying all its averments. He further alleges that the claim made in the answer is within the statute of frauds and therefore void.
    Trial was had in the court of common pleas on the issues, and the finding and judgment were for the plaintiff. The defendants appealed to the circuit court, where the case was again tried. That court made findings of-fact which support the allegations of the answer as to the agreement to change the royalty from one-sixth to one-eighth, hut held that the agreement, not being in writing, is within the statute of frauds and therefore void. The defendant in error has filed a cross-petition in error, alleging, in part, that the findings of fact are not justified by the evidence. These findings of fact are further noticed in the opinion. The court made a decree for the plaintiff, against the plaintiffs in error, and error is prosecuted here to reverse it.

      Mr. James O. Troup, for plaintiffs in error,
    cited and commented upon the following authorities:

      Turnpike Co. v. Shafer, 65 N. E. Rep., 1121; Croke v. Bank, 70 Pac. Rep., 229; Bobo v. Richmond, 25 Ohio St., 115; Negley v. Jeffers, 28 Ohio St., 91.

      Messrs. James S Kelly, for defendant in error,
    cited and commented upon the following authorities:

      Hirth v. Graham, 50 Ohio St., 57; Clark v. Guest, 54 Ohio St., 298; Armstrong v. Kattenhorn, 11 Ohio, 265; Shahan v. Swan, 48 Ohio St., 25; Heaton v. Eldridge, 56 Ohio St., 87; Welever v. The Detwiler Co., 8 Circ. Dec., 668; 15 C. C. R., 680; Reinheimer v. Carter et al., 31 Ohio St., 579; Wagner v. Railway

      Co., 38 Ohio St., 33; Flinn v. Manning, 13 Dec. Re., 446; 1 C. S. C. R., 110; Lefferson v. Dallas et al., 20 Ohio St., 68; Henry v. Henry et al., 27 Ohio St., 121; Lithgow v. Shook, 1 O. S. C. D., 741; 39 W. L. B., 39; Crawford v. Wick, 18 Ohio St., 190; Pease v. Gibson, 6 Greenl., 81; Wait v. Baldwin, 60 Mich., 622.
   Price, J.

There is no merit in the cross-petition in error filed in this proceeding by Amos, the defendant in error. It seems that he was not satisfied with the findings of fact made by the lower court, but he did not file a motion for new trial as a foundation for a review of such findings.

Nor was the defendant in error entitled to any relief in damages against The Buckeye Pipe Line Company on account of any facts appearing in the record, and it was not liable to account to him for any oil which was the subject of controversy between the lessor and lessee. The Pipe Line Company took the oil as a common carrier, or bailee, for both parties, and when they could not agree on a division of it, and therefore not upon a division order upon the company, it was unable to decide between them on the only question of difference, and the lessor resorted to the proper court for its solution. This view will become quite clear from our further consideration of the case.

The lease of October 11, 1902, granted to the plaintiffs in error and their heirs and assigns, “all the oil and gas in and under said tract of land, and also said tract of land for the purpose and with the exclusive right of operating thereon for said gas or oil, with the right of way, the right to lay pipes over and to nse water from said premises; and also the right to remove at any time, all property placed thereon by the lessee. ’ ’ The grant is for a term of twenty years from date and as much longer as oil or gas is found in paying quantities thereon, yielding and paying to the lessor “the one-sixth of the oil produced and saved from the premises, delivered free of expense into the tanks or pipe line to the lessor’s credit.”

There is another important clause in the lease:— “it is agreed further, that the second party (lessees) shall have the right at any time to surrender the lease to the first party for cancellation, after which all payments and liabilities to accrue under and by virtue of its terms shall cease and determine and the lease shall become absolutely null and void.”

The lessees proceeded to operate under this lease and drilled and equipped one oil well, which the circuit court found “did not produce oil sufficient to pay for operating the same at one-sixth royalty as prescribed in the lease. ’ ’ That court further found that the defendants, now plaintiffs in error, informed the plaintiff, Amos, that they would abandon said premises and surrender said lease, unless he would agree to reduce the royalty stipulated therein from one-sixth to one-eighth, and they proposed that if he would make that reduction, they would proceed to further drill and operate the lease for oil. Thereupon the lessor and lessees entered into a parol contract, to the effect that if the lessees would continue to further drill and operate said lands for oil, the royalty should be one-eighth instead of one-sixth as provided in the lease, and further, that if at the end of thirty days from the completion of any well, the average production of said lands should amount to five barrels per day for each well, the royalty to the lessor should be one-sixth; and if the production at the end of thirty days from the completion of any well should amount to an average of ten barrels per day from each well, the royalty to the lessor should be one-fourth of the oil produced.

In consideration of this parol contract, the lessees drilled, equipped and operated five additional wells on said lands at an expense to themselves of not less than six thousand dollars. But at no time since the completion of either or any of said wells has the production exceeded an average of two barrels per day for each well. When it came to sign a division order according to the terms of the parol contract, Amos, the lessor, refused, and demanded one-sixth royalty as stipulated in the written lease, and brought action to enforce specific performance of its terms. While the circuit court found all the above facts to be established, it held that the verbal agreement so made is within the statute of frauds and therefore void. Is its conclusion of law sound?

That statute is found in section 4199, Revised Statutes, and its provisions relative to the present controversy may be quoted as follows: “No action shall be- brought whereby to charge the defendant * * * upon any contract or sale of lands, tenements or hereditaments, or any interest in, or concerning of them; nor upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”

It is claimed for the lessor who commenced the action under review, that, (1) the parol contract relied on relates to an interest in or concerning land; and, (2) that the contract was not to be performed within the space of one year from the making thereof. We cannot assent to either proposition. The title to the land is not involved, nor is any interest or estate therein. The question arises on a lease supplemented by a parol contract with reference to the consideration. There is no controversy over the extent of the grant, and the parol contract does not undertake to lessen or enlarge the estate granted. Touching the division of the oil when brought to the surface, the written lease stipulates that the lessees shall yield and pay “to the lessor the one-sixth part of the oil produced and saved from the premises, delivered free of expense into the tanks or pipe line to the lessor’s credit # *

This share is the lessor’s compensation for the lease and the rights granted therein. The five-sixths go to the lessees by virtue of the same instrument, because the grant to them was the oil contained in the premises. Therefore the parol contract related to personal property and not real estate, or an interest in or concerning the same. In Kelley v. The Ohio Oil Co., 57 Ohio St., 317, this court held that petroleum oil is a mineral, and while it is in the earth, it forms part of the realty; and when it reaches a well and is produced on the surface, it becomes personal property and belongs to the owner of the well. In the opinion by Burket, J., on page 328, it is said: “Petroleum oil is a mineral, and while in the earth it is part of the realty, and should it move from place to place by percolation or otherwise, it forms part of the tract of land in which it tarries for the time being, and if it moves to the next adjoining tract, it becomes a part and parcel of that tract; and it forms part of some tract, until it reaches a well and is raised to the surface, and then for the first time it becomes the subject of distinct ownership separate from the realty, and becomes personal property, the personal property of the person into whose well it came. # * * It is the property of, and belongs to the person who reaches it by means of a well and severs it from the realty and converts it into personalty. ’ ’ The same doctrine is again laid down in Natural Gas Co. v. Ullery, 68 Ohio St., 259.

The lessees, by the written instrument, agreed to drill and operate for oil, and of what they would thus produce from the wells and thereby severed from the realty, they were to yield and pay to the lessor one-sixth. Hence, when the parties entered into the parol contract as found by the lower court, they were not contracting for an interest in or concerning real estate, but for a division of personal property in proportions different from those named in the written lease. The royalty is an incident to the written instrument as a means of compensation to the lessor for the grant and privileges therein conveyed.

Akin to the foregoing is the case of Long v. White, 42 Ohio St., 59. It is there held, that the statute of frauds cannot defeat the recovery of the purchase money on a verbal contract for the sale of a dwelling house then annexed to real estate, but to be severed from the freehold and delivered on rollers, after the same has been so severed, and which was delivered in accordance with the contract. In that case the defense was that the dwelling house, when the verbal contract for its purchase was made, was standing upon the premises, erected upon permanent walls, a solid and strong foundation, permanently affixed to the premises and constituted a part of the same. The defense was held had and the seller recovered.

In Negley v. Jeffers et al., 28 Ohio St., 90-91, it is held that when a deed to real estate has been executed, or title in any other way passed, subsequent agreements between vendor and vendee, as to the pecuniary liabilities growing out of the transaction, which do not take away or confer any interest in the land, but only determine the time when the purchase money becomes due, are not affected by the statute of frauds. It is further held, that a subsequent contract between the parties, by the terms of which, the vendee, for a valuable consideration received, agreed to waive his right to insist on the performance of conditions precedent which were in writing, and take the property subject to incumbrances, and pay the balance due, is not a contract within the statute of frauds, and may be proved by parol. See also Blakeney v. Goode et al., 30 Ohio St., 350.

In Shaw v. Walbridge, 33 Ohio St., 1, this court decided that where a grantor in a deed absolute on its face, claimed that it was a mortgage, in a proceeding” to establish that claim, it was competent for the grantee to show, that although originally a mortgage, the equity of redemption had been released by a parol agreement. Beyond doubt the party released an interest in real estate. We think these authorities ample on the first proposition.

The second contention is that the parol contract was not to be performed within one year and for that reason it is within the statute of frauds. We think this position is also untenable. The only time fixed for performance is when oil is “produced and saved,” and on its face is susceptible of being performed within a year, within the legal signification of that term. One well had been drilled and was in operation when the verbal agreement was made. The premises consisted of sixty acres, and the remaining wells, five in number, could be, and perhaps were drilled and put in operation'-within the year, and they may all become worthless and nonproductive within the year after each had been operated. The rule is well stated by Browne in his work on the Statute of Frauds, sections 274-5-6. In section 274 it is said: ‘ ‘ Suppose that the parties make no stipulation as to time; but the performance of the agreement depends either expressly or by reasonable implication upon the happening of a certain contingency which may occur within the year. In such case it is settled upon authority and is reasonable in principle, that the statute should not apply. The agreement may be performed entirely within the year, consistently with the understanding and the rights of parties.”

The author in the following section cites illustrations of his meaning. And in section 576 he adds: “cases where the promise is to continue to do something until an implied contingency occur; as for instance, to pay during the promisee’s life; to pay during the life of another; to work for another during his life; to board the promisee during his life; to educate a child; to support a child; to pay during coverture, — are not within the statute, because the contracting parties contemplate that the one whose life is involved may die within the year. Agreements to continue to do something for an indefinite period, which may be terminated at any time by either party; or which may be terminated by such change in the circumstances of the parties as will - make it unreasonable or unnecessary that they be further bound, the contingency' of such change of circumstances being implied in the nature' of the contract, — are not within the statute.” It is well to remember here that one of the stipulations in the lease is, that the lessees might abandon and surrender the lease at any time and remove their property, terminating all further liabilities. But we will not further pursue the discussion in the text books. This court spoken sufficiently plain on the subject in several cases. In Randall v. Turner, 17 Ohio St., 262, it is held that a verbal agreement for the sale of lands which has been fully performed on the part of the vendor, is not rendered void by the statute of frauds. In the opinion by Day, C. J., on page 270, it is said: “the most that can be claimed is, that it (the contract) was not likely to be performed in a year; but it was clearly susceptible of performance within that time. The road (railroad) might have been abandoned within a year, and thus a reasonable time to wait for its completion would have expired. There was surely nothing in the contract that fixed the time of performance beyond a year. It is well settled by the authorities upon this point, that the contract is not within the statute of frauds. Moreover the suit being for the purchase money of the land, and the contract having been fully performed on the part of the vendor, the statute does not apply. ’ ’

Jones v. Pouch, 41 Ohio St., 146, is a case where there was a verbal contract to construct a section of a road within a year and twenty days from the date of the contract. ■ The work could have been completed within the year, and it was held, that this was not an “agreement not to be performed within the space of one year from the making thereof;” and an action thereon was not prohibited by the statute of frauds.

A very decisive case is found in Towsley v. Moore, 30 Ohio St., 184. Miss Towsley was a minor about eleven years old, and with the advice and consent of her mother, agreed to work for Moore in his household and kitchen, until she arrived at the age of eighteen, for which service Moore was to board, clothe and furnish her with schooling, and at the expiration of her term of service, pay her what such service was reasonably worth. She rendered the service agreed upon. In her action to recover, among other defensive ma/tter, Moore set up the statute of frauds — that the contract could not be and was not performed within a year from its date. This was admitted by the reply, but it averred, that she did fully complete and perform the same, and that her services were worth the amount sued for.

It was held on the above facts, that “although an action cannot be maintained upon a verbal contract not to be performed within one year, yet when such contract has been fully performed by one party, the other having obtained its benefits, he cannot refuse to pay the reasonable value thereof. ’ ’ That is a very instructive case on the one-year clause of the statute of frauds, and the principles of various decided cases are well summed up in the opinion on page 194.

In the light of the authorities, only a few of which we have noted — how stands the ease at bar? Relying on the integrity of the verbal agreement with their lessor, the plaintiffs in error drilled, equipped and put in operation five additional wells at an expense of not less than six thousand dollars, and tendered 111111 the eighth royalty agreed upon' as the inducement to make the large expenditure. They have fully performed the contract on their part, of which performance, lessor has received the benefits, and can he now repudiate the contract as invalid and defeat the rights of the lessees ?

He has brought his action in a court of equity for specific performance of the terms of the original written lease, and the lessees plead the change in the royalty merely. Courts of equity do not always grant specific performance of contracts, and they will not do so where it would work manifest injustice to adverse parties. On the facts found in this case, there is not a semblance of equity in the lessor’s •claim, and the circuit court should have denied his prayer for relief.

The judgment of the circuit court is reversed, and rendering the proper judgment on the facts found, we find for the plaintiffs in error, and dismiss the petition filed-in the court of common pleas by defendant in error.

Judgment reversed.

Davis, C. J., Shauck, Crew and Spear, JJ., concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Larwill's Executors v. Ewing.

      Prevention of the lapsing of devises and bequests by section 5971, Revised Statutes — Interpretation of statutes — Law of wills— Descent of property.

    The effect of section 5971, Revised Statutes, is to prevent the lapsing of devises and bequests clearly made to a child or other relative of a testator when such primary devisee dies before the testator, but leaving issue which survives him, unless to give it that effect would be subversive of a dispositive intention clearly expressed in the will.
    (No. 8931
    Decided December 22, 1905.)
    Error to the Circuit Court of Eichland county.
    Mrs. Ewing brought suit in the court of common pleas to recover of the executors of the last will and testament of her uncle, John C. Larwill, the sum of $50,000 which he had bequeathed to her mother, Elizabeth Lj Miller, who was the sister of the testator and the mother of Mrs. Ewing. The facts material to her right to recover are that John C. Larwill died testate August 30, 1901; his will had been executed October 4, 1897, one item thereof being: “Fifth. I also give and bequeath to my sister, Elizabeth L. Miller, the sum of fifty thousand dollars.” On the twenty-eighth of September, 1900, the testator executed a codicil whereby he revoked some of the specific bequests which he had made in his will (but not that to Mrs. Miller), and made others, and disposed of the residue of his estate giving a specified proportion thereof to his sister, Mrs. Miller. The codicil concludes as follows:
    “I am not unmindful of the fact I have omitted from my will all mention of several relatives of mine. This omission is not accidental or inadvertent or from any nnldnd feelings on my part, but deliberate and determined, and for reasons which seem to me good and sufficient. I have decided to exclude from any participation in my estate any and all persons not mentioned in this my will and codicil. ’ ’
    Mrs. Miller died in June, 1901, leaving the plaintiff surviving as her only issue and heir at law. In the court of common pleas a judgment was rendered for the plaintiff and the judgment was affirmed by the circuit court.

      Messrs. Bruclcer & Cummins; Messrs. Douglass & Mengert and Messrs. Kibler & Kibler, for plaintiffs in error,
    cited and commented upon the following authorities:

      White v. Massachusetts, 171 Mass., 98; Osborn v. Bank, 116 Ill., 132; McCourtney v. Mathes, 47 Mo., 533; Pounds v. Dale, 48 Mo., 270; Hockensmith v. Blusher, 26 Mo., 237; Hawhe v. Railroad, 165 Ill., 566; Schouler on Wills, secs. 487, 567, 581; Negley v. Gard et al., 20 Ohio, 310; Collier v. Collier’s Exrs., 3 Ohio St., 369; James v. Pruden et al., 14 Ohio St., 251; Schlottman v. Hoffman, 55 Am. St. Rep., 527; Bingel v. Volz, 34 Am. St. Rep., 64; Smith v. Bell, 6 Pet., 68 (Book 8, 322); Blake v. Hawkins, 98 U. S., 315;Brown v. Thorndike, 15 Pick., 388; Postlethwaite Appeal, 68 Pa., 477; Jewett v. Jewett, 12 Circ. Dec., 131; 21 C. C. R., 281; Lee v. Simpson, 134 U. S., 572 (Book 33, 1045); Page on Wills, 551, 741, 817 and note, 823; Almy v. Jones, 17 R. I., 265; 12 L. R. A., 414; Biglow v. Clap, 166 Mass., 88; Bragg v. Carter, 171 Mass., 324; Kerrigan v. Tabb (N. Y.), 39 Atl. Rep., 701; Gilmor’s Estate, 154 Pa. St., 523; McGovran’s Estate, 190 Pa. St., 375; Rivers v. Rivers, 36 S. C., 302; Brice v. Horner, 38 S. W. Rep., 440,

      Schlottman v. Hoffman, 73 Miss., 188; Murphy v. Carlin, 35 Am. St. Rep., 699; 48 Am. St. Rep., 774; Hazelett v. Farthing, 42 Am. St. Rep., 365; Estate of Stebbins, 34 Am. St. Rep., 345; 94 Mich., 304; Lorieux v. Keller, 5 Ia., 196; 68 Am. Dec., 696; Wilson v. Fosket, 6 Met., 400; 39 Am. Dec., 736; 1 Jarman on Wills, 430; Chappell v. Missionary Soc., 50 Am. St. Rep., 285, 279, 294; Eatherly v. Eatherly, 78 Am. Dec., 499; Warner v. Miltenberger, 21 Md., 264; 83 Am. Dec., 573; Patch v. White, 117 U. S., 210; Griscom v. Evens, 40 N. J. Law, 402; 29 Am. Rep., 251; Heidenheimer v. Bauman, 84 Tex., 174; 31 Am. St. Rep., 29; Coulam v. Doull, 133 U. S., 216; Monographic Note to Kurtz v. Hibner, 8 Am. Rep., 669, 673; Sturgis v. Work, 17 Am. St. Rep., 349; Gilmor’s Estate, 35 Am. St. Rep., 855; Barnard v. Barlow, 50 N. J. Eq., 131; White v. Holland, 92 Ga., 216; 44 Am. St. Rep., 87 and note; Henry v. Henry, 81 Ky., 342; Waldron v. Waldron, 45 Mich., 350; Succession of Ehrenberg, 21 La. An., 280; 99 Am. Dec., 729; Bingel v. Volz, 142 Ill., 214; Buckley v. Gerard, 123 Mass., 8; 62 N. H., 606; Church, etc., Soc. v. Hatch, 48 N. H., 393; Bartlett v. Remington, 59 N. H., 364; Tilton v. Bible Soc., 60 N. H., 377; Pruden v. Pruden, 14 Ohio St., 251; 134 U. S., 572; Whitcomb v. Rodman, 156 Ill., 116; 28 L. R. A., 149; Jones v. Menefee, 28 Kan., 438; Nichols v. Boswell, 103 Mo., 151; Morris v. Sickly, 133 N. Y., 456; Jasper v. Jasper, 17 Ore., 590; Bank of Florence v. Gregg, 46 S. C., 169; Brasher v. Marsh, 15 Ohio St., 103; Woolley v. Paxson, 46 Ohio St., 307; Shumaker v. Pearson, 67 Ohio St., 330; sec. 5971, Rev. Stat.

      Messrs. Jenner & Weldon, for defendant in error,
    cited and commented upon the following authorities':

      Woolley et al. v. Paxson et al., 46 Ohio St., 307; Shumaker v. Pearson, 67 Ohio St., 330; Baker et al. v. Carpenter, Exr., 69 Ohio St., 15; Collier v. Collier’s Exrs., 3 Ohio St., 369; Tilden v. Tilden, 13 Gray, 108; Holden v. Blaney et al., 119 Mass., 424; Wetmore et al. v. Parker et al., 52 N. Y., 451; Lessee of Worman v. Teagarden, 2 Ohio St., 380; Clyde v. Simpson et al., 4 Ohio St., 455; James v. Pruden, 14 Ohio St., 256; Lee v. Simpson, 134 U. S., 572; Smith v. Bell, 6 Pet., 68; Townsend’s Exrs. v. Townsend, 25 Ohio St., 477; Parker et al. v. Parker’s Admr., 13 Ohio St., 95; see. 5971, Rev. Stat.
   Shauck, J.

The primary devisee, Mrs. Miller, having died before the testator, it is not doubted that the bequest to her would have lapsed but for section 5971 of the Bevised Statutes to prevent the lapsing of devises and bequests. It provides that:

“[R. S. 5971. Devise or bequest not to lapse by the death of devisee or legatee.] When a devise of real or personal estate is made to any child or other relative of the testator, if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter, leaving issue surviving the testator, in either case such issue shall take the estate devised in the same manner as the devisee would have done, if he had survived the testator; or, if such devisee shall leave no such issue, and the devise be of a residuary estate to him or her, and other child or relative of the testátor, the estate devised shall pass to, and vest in such residuary devisee surviving the testator, unless a different disposition shall be made or required by the will.”

The bequest in the present instance is to a particular legatee whom the testator has named in his will, and not to a member of a class described generally. Tbe right of Mrs. Ewing to take by substitution under the provisions of the statute is, therefore, not beclouded by the considerations which evoked dissents in Woolley et al. v. Paxson et al., 46 Ohio St., 307, and Shumaker v. Pearson et al., 67 Ohio St., 330. The doubt in the present case arises from the concluding clause of the codicil to which counsel for the executors ascribe the force of a limitation upon the gift which, in the will, the testator had made to-Mrs. Miller without any qualification or restriction whatever. Stability and consistency of adjudication require the conclusive presumption that the gift was made with knowledge of the statute and its effect. This means that the disposition when made in the will was as if it had been in terms to Mrs. Miller, if she should survive the testator, but if she should die before him, then to her daughter if she should survive him.

The concluding phrase of the section of the statute, “unless a different disposition shall be made or required by the will” forbids such application of these provisions as would defeat the declared intention of the testator. Applied to the case the statute provides that Mrs. Ewing shall take the bequest by substitution unless the testator has made another disposition of the bequest contingent upon the death of the primary legatee before his own death, or has by apt terms so limited the bequest to the primary legatee as to prevent the operation of the statute. Neither in the will nor in the codicil is any disposition made of the subject of the bequest upon the contingency of the death of Mrs. Miller before the death of the testator. The terms employed to limit or qualify a gift already made must, to be effective, be as clear and significant as those in which it was made. In this view the concluding portion of the codicil seems to a majority of the members of the court to be plainly ineffectual to defeat the claim of Mrs. Ewing. The testator’s dispositions had already been made. He indicated no purpose of revoking, limiting or in any way qualifying them. Indeed the introductory words of the concluding paragraph show unmistakably that it was written in the exclusive contemplation of what he had already done, and for the purpose of expressing satisfaction therewith. His purpose was not to restrict or qualify but to re-affirm and justify dispositions already completely made. Mrs. Ewing had not been named in the will or codicil, and as to her he here declared that her omission was designed and not accidental, and that he intended that she should not share in his estate as a primary legatee or in any other manner except as she might by operation of law become the beneficiary of the absolute gift which he had already made to the relative named in his will. We are aware that by general consent cases which involve nothing but the interpretation of words used in a private instrument are not reportable because they are not likely to occur again. But the present case depends upon the effect to be given to an important section of the statute which is not to be averted except by language which clearly makes or requires a disposition different from that which its terms contemplate.

Judgment affirmed.

Price, Crew and Summers, JJ., concur.

Davis, C. J., dissents.

Spear, J., dissents from the judgment.


author: Davis, C. J.

text:
    The Incorporated Village of Fairview, Ohio, v. Giffee.

      Legislative branch of, government — Is expressly prohibited from, exercising judicial power — But may empower and define jurisdiction of courts — General assembly may determine by which department of government an act may be exercised— Where constitution does not distinctly define the judicial power — Sections '1536-60 and 1536-61, Revised Statutes — Powers of government — Legislative authority.

    1. The legislative branch of the state government is expressly prohibited from exercising judicial powers, except as expressly conferred in the constitution, and it is expressly empowered to define the jurisdiction of the courts. Under the constitution of this state the power of defining the functions of the judicial department is only limited by the general rule that a grant of general powers to any department constitutes of itself an implied exclusion of all other departments from the exercise of such powers; and when the constitution does not distinctly define and distribute judicial powers, and it is not clear whether an act is wholly the exercise of legislative, executive or judicial power, it is within the power of the general assembly, as the depository of the legislative power of the state, to determine by which department it shall be exercised.
    2. The act entitled “An act to provide for detaching unplatted farm lands from cities and incorporated villages, and for attaching the same to adjacent townships,” 95 O. L., 259, Revised Statutes, sections 1536-60 and 1536-61, does not confer legislative power on the court of common pleas or a judge thereof, and is constitutional.
    (No. 8797
    Decided December 22, 1905.)
    Error to 'the Circuit Court of Guernsey county.
    Under favor of “An act to provide for detaching unplatted farm lands from cities and incorporated villages, and for attaching the same to adjacent townships,” 95 O L., 259, Revised Statutes, sections 1536-60 and 1536-61, J. B. Giffee filed his petition in the court of common pleas of Guernsey-county praying that certain unplatted farm lands be detached from the incorporated village of Fairview and attached to the adjoining township of Oxford. In the said petition the plaintiff alleged that the defendant is a municipal corporation which has a population of about three hundred, which did not increase any in the last thirty years, and that the said lands which are described were never laid out into streets or alleys, and are not now, and never were, mapped or platted, and are not needed for streets or alleys, or for the extension of the said village, nor for any building, manufacturing or village purposes, and that the same never will be so needed; that the said farm lands are of no benefit to the village in any way, except that the defendant village has been levying taxes thereon yearly for its own purposes; and that the detachment of the said lands from the incorporated village and the attachment of the same to said Oxford township will not affect the good government of said adjacent territory, or of said village, or injure them in any way. The statute under which this proceeding was instituted is as follows:
    “Section 1. That the owner or owners of unplatted farm lands lying within the corporate limits of any city or village may file a petition in the court of common pleas of the county in which such lands are situated, in which such owner or owners shall be named as plaintiffs, and such city or village shall be the defendant, setting forth the reasons why such lands should be detached, and the relief prayed for. On such petition a summons shall issue as in other actions, and such cause proceed as in other causes.

      “Section 2. On the hearing of such cause if the court shall find that such lands are farm lands and that the same may be detached without materially affecting the good government of adjacent territory within such village or city limits, an order and decree may be made by the court in his discretion and entered on the record that such lands be detached from such city or village and be attached to the most convenient adjacent township in the same county, and thereafter such land shall not be a part of said city or village, and shall be a part of the township to which the same has been so attached, and the costs taxed as to. the court may seem right.
    ‘ ‘ Section 3. This act shall take effect and be’ in force from and after its passage.”
    The court of common pleas sustained a demurrer to the said petition upon the ground that the said act is unconstitutional and rendered final judgment against the plaintiff. The circuit court reversed the judgment of the court of common pleas, and this proceeding is now prosecuted to reverse the judgment of the circuit court and affirm the judgment of the court of common pleas.

      Mr. Fred L. Rosemond, for plaintiff in error.

      Messrs. Wells <& Sheppard and Mr. R. T. Scott, for defendant in error.
    The court also considered the briefs of Mr. P. J. Chase and Mr. James O. Troup, for plaintiff in error, and Mr. J. W. Grabiel, for defendant in error, in City of Rowling Green v. Sutton, 72 Ohio St., 676 (unreported); arid of Messrs. Snook & Wilcox, for plaintiff in error, and Messrs. Snook & Savage, for

      defendant in error, in eases Village of Grover Hill v. Sutton, 72 Ohio St., 676 (nnreported), and Village of Grover Hill v. Eaton, 72 Ohio St., 676 (nnreported).
   Davis, C. J.

The act of the general assembly-under which the petition below was filed (95 O. L., 259, Revised Statutes, sections 1536-60 and 1536-61) is assailed upon two grounds; first, that it imposes legislative power upon the judiciary; and, second, that it discriminates in favor of an arbitrary, unreasonable and unconstitutional class.

It would be difficult, if not quite impossible, to maintain that the detachment of territory embraced within the limits of a municipal corporation is not within the legislative power conferred on the general assembly. At least, it seems to be the settled law of this jurisdiction that the legislature may either attach or detach territory adjacent to a municipal corporation. But that is not the proposition which is involved in the decision of this case. The question to be determined here is whether or not the legislature, in providing the conditions and limitations under which the legislative will may be carried out in a general law, may choose the judicial department as its instrumentality.

The foundation of the argument against the constitutionality of this act is laid upon the doctrine of the distribution of governmental powers and functions. It seems to be assumed that the separation of executive, legislative and judicial powers is complete and distinct under the constitution. Theoretically it is so; but in practice it is not so and never was so; and by the best modem writers on political science it is recognized to be practically impossible to distinctly define the line of demarkation between the different departments of government. This was well expressed in Taylor v. Place, 4 R. I., 332: “To some extent, and in some sense, each of the powers must he exercised by every other department of the government in order to the proper performance of its duty.” So likewise it was said by White, J., in State ex rel. v. Harmon, 31 Ohio St., 250, that “The distribution of powers among the legislative, executive and judicial branches of the government, is, in a general sense, easily understood; but no exact rule can he laid down, a priori, for determining, in all cases, what powers may or may not be assigned by law to each branch. The power of allotting to the different departments of government their appropriate functions is a legislative power; and in so far as the distribution has not been made in the constitution, the power to make it is in the general assembly, as the depository of the legislative power of the state. ’ ’ It was long ago convincingly pointed out by Bentham that the work of the judiciary is, in its final analysis, chiefly judicial legislation; and a distinguished publicist of the present day, Prof, (foldwin Smith, has declared that, “The separation of the executive power from the legislative is a dream, though Montesquieu has established the belief that it is one of the great securities of liberty.” And just here it is of some importance to note the absence of a distributive clause in the constitution of Ohio, although such a clause appears in the constitutions of most of the states. It is nevertheless true, iii the American theory of government, that each of the three grand divisions of the government, must he protected from encroachments by the others, so far that its integrity and independence may be preserved. From these considerations it seems to us that at the outset of this argument too much has been assumed for its fundamental proposition.

While there is no clause in the constitution of this state expressly distributing the powers of government, and none expressly restricting the executive and judicial branches, the legislative branch is expressly prohibited from exercising judicial powers, except as expressly conferred in the constitution, and it is expressly empowered to define the jurisdiction of the courts. The power of defining the functions of the executive and judicial departments is clearly a legislative power, which, under the constitution of Ohio, is only limited by the general principle that a grant of general powers to any department constitutes of itself an implied exclusion of all other departments from the exercise of such powers. We quote again from State ex rel. v. Harmon, supra, “In so far as the distribution has not been made in the constitution, the power to make it is vested in the general assembly, as the depository of the legislative power of the state.” So that when we come to the border line of legislative power and it is difficult to determine whether an act is wholly within the legislative domain or entirely within the judicial boundaries, the constitution not having clearly defined its position, it is within the power and duty of the legislature to determine to which department it shall belong. It results that if the jurisdiction conferred by this act upon the court of common pleas and the judge thereof is not conclusively judicial in its character it is nevertheless within the eonstitu'tional right of the general assembly to impose the jurisdiction upon the court and judge because it is in the nature of judicial power and it is in aid of executing the express legislative will which is declared to be that “thereafter such lands shall not be a part of said city or village, and shall be a part of the township to which the same has been so attached.”

In Moers v. The City of Reading, 21 Pa. St., 202, it was tersely remarked by the Chief Justice that “Half the statutes on our books are in the alternative, depending upon the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said that the exercise of such a discretion is the making of the law. ’

This distinction has been very clearly laid down by Ranney, J., in the leading case of Railway Co. v. Commissioners, 1 Ohio St., 87-88, as follows:

“But while this is so plain as to be admitted, we think it equally undeniable, that the complete exercise of legislative power by the general assembly, does not necessarily require the act to so apply its provisions to the subject matter, as to compel their employment without the intervening assent of other persons, or to prevent their taking effect, only, upon the performance of conditions expressed in the law. * * * But because such discretion is given, are these, and all similar enactments, to be deemed imperfect and nugatory? It would take a bold man to affirm it. In what does this discretion consist? Certainly not in fixing the terms and conditions upon which the act may be performed, or the obligations thereupon attaching. These are all irrevocably prescribed by the legislature, and whenever called into operation, conclusively govern every step taken. The law is, therefore, perfect, final, and decisive all its parts, and the discretion given only relates to its execution. It may be employed or not employed —if employed it rules throughout; if not employed it still remains the law, ready to he applied whenever the preliminary condition is performed. The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.”

The doctrine contended for above has been approved and applied in Zanesville v. Telephone Co., 64 Ohio St., 67; Dowling v. Lancashire Ins. Co., 92 Wis., 63; Field v. Clark, 143 U. S., 650; People v. L. I. R. R. Co., 134 N. Y., 506, and in many other cases which might be cited. See note 2, 8 Cyc., 835.

But coming to a closer analysis of this statute, does it invoke the exercise by the common pleas court or judge of any powers other than judicial? We think not. It is indisputable that it is a judicial function to hear and determine a controversy between adverse parties, to ascertain the facts, and applying the law to the facts, to render a final judgment. In this statute the general assembly has recognized the fact that individual rights as opposed to public interests may have been encroached upon by the rape and taxation of unplatted, and it may be, unplattable, farm lands for city and village purposes without benefit to the owner; and has provided that when such a condition has been found to exist, “thereafter such lands shall not be a part of such city or village.” This is a general statute and in order to provide for its due administration in all cases of the kind which the legislature had in mind, it is provided that a suit may be brought by petition in the court of common pleas of the county in which the lands are situated, with the owner as plaintiff and the city or village as defendant, “setting forth why such lands should he' detached and the relief prayed for. On such petition a summons shall issue as in other actions, and such cause shall proceed as in other causes.” If, on the hearing of the cause, the allegations are found to he true, or in the general language of the statute, the lands are found to he farm lands and that the detachment of the same Avould not “materially affect the good government” of the adjacent territory in the city or village, the court may “in his discretion” make a decree, etc. It has been strongly urged against the validity of this statute that it authorizes the court upon considerations of “good government” and in the exercise of “his discretion” to order or not to order the detachment of unplatted lands and that this confers legislative power; but this, we insist, is a misinterpretation of the statute. It is incumbent upon us to give it, if possible, such an interpretation as will make it constitutional, and not to strain its language so as to defeat the will of the legislature. Accordingly, it seems to us that the clause “without materially affecting the good government of the adjacent territory within such city or village limits,” and the phrase “in his discretion,” do not import an absolute discretion upon a matter of public policy affecting the municipal government, but rather a judicial discretion to be exercised upon the* hearing of the cause in determining whether the alleged reasons for detachment have a foundation in fact and whether the detachment of the lands would in fact substantially embarrass the municipality. If, for example, it should appear that the land owner was taxed for municipal purposes and was not, and could not, be correspondingly benefited, it would not be a sufficient reason for withholding the> order detaching the land merely because the municipality would otherwise lose the taxes. It should appear that the corporation would in some way be substantially prejudiced by detachment. This would only appear by evidence introduced upon a formal hearing. It is clear to us, therefore, that the power conferred by this statute upon the court is judicial power, granted for the purpose of aiding the general assembly in carrying out its legislative will; and that the decree of the court therein authorized is not an original political act, and that it derives its efficacy solely from the application of the law as declared in this act of the general assembly. City of Wahoo v. Dickinson, 23 Neb., 426; City of Burlington v. Leebrick, 43 Ia., 252; Callen v. Junction City, 43 Kan., 627; Kayser v. Trustees, etc., 16 Mo., 88; City of Winfield v. Lynn, Supreme Court of Kansas, 57 Pac. Rep., 549.

Upon the subject of unreasonable classification we do not think it necessary to add anything to what has been said in the recent case of The Cincinnati Street Railway Company v. Horstman, 72 Ohio St., 93.

We are of the opinion that the statute is constitutional ; and that the petition stated facts sufficient to constitute a cause of action. The 'demurrer to the petition should have been overruled. The judgment of the circuit court reversing the judgment of the court of common pleas and remanding the case for further proceedings is therefore

Affirmed.

Price, Summers and Spear, JJ., concur.

Shauck and Crew, JJ., dissent.


author: By the Court.

text:
    State v. Dickerson.

      Leave to file bill of exceptions — Before prosecution is ended — Not permissible, when.

    As a general rule an application by a prosecuting attorney for leave to file a bill of exceptions to the decisions of the court in a criminal case before the prosecution is ended will be overruled.
    (Decided December 22, 1905.)
    On October 21,1905, the grand jury for Coshocton county returned an indictment against the defendant, Benjamin Dickerson, for murder. Thereafter, on the fifteenth of November, the defendant filed a plea in abatement, to which the prosecuting attorney filed a demurrer, which was overruled, and thereupon the prosecuting attorney took a bill of exceptions and now presents the same to this court and applies for leave to file it for the decision of this court upon the points presented therein.
    Motion for leave to file bill of exceptions by Mr. James Glenn, prosecuting attorney.

      Mr. Richard M. Voorhees, contra.
   By the Court.

The constitution of the state guarantees to every person accused of crime “a.speedy public trial before an impartial jury.” The right of appeal or to a review by proceedings in error is statutory (Wagner v. The State, 42 Ohio St., 537) and, when the right is given, it is a rule of interpretation that the right is given only to the defendant and not to the state, (State v. Simmons, 49 Ohio St., 305), consequently, if a trial court misconceived or misapplied the law, it might be impossible in that court to secure a conviction of a similar offense, wherefore it is provided by section 7305, Revised Statutes, and the several sections following, that the prosecuting attorney may except to any decision of the court and apply to the supreme court for permission to file his bill of exceptions, for the decision of that court upon the points presented therein. And it is made the duty of the court, if it be of opinion that the questions presented should be decided, to allow the bill of exceptions to be filed and to render a decision upon the questions presented. But section 7308, Revised Statutes, expressly provides that ‘ ‘ The judgment of the court in the case in which the bill was taken shall not be reversed, nor in any manner affected; but the decision in the supreme court shall determine the law to govern in any similar case. ’ ’

Whether or not the rendition of a final judgment was, in the contemplation of the general assembly, to precede the filing of the bill of exceptions, the court may, as a rule, require it; for in no other way can it make sure that its decision will in no manner affect the judgment in the case in which the bill is taken, and since the decision is not in any manner to affect the judgment in the case in which the exceptions are taken, no reason is suggested or presents itself why the bill of exceptions should be permitted to be filed before the prosecution is ended; whereas reasons of convenience, as well as an observance of the legislative mandate, suggest that as the better practice.

Without intending any reflection upon the trial judge or the prosecuting attorney, it may be said that it is not at all improbable that other questions, which it is desired to have decided, will arise in the case, and it would be better to have them all presented at the same time.

So far as appears from the record before us, the plea in abatement and the indictment may be still undisposed of, indeed it was so stated on the presentation of the application, and in his written acknowledgment of the notice of the application the trial j'udge requests that the application be allowed and that the question be decided by the court, at its earliest convenience. This would seem to indicate that an early decision might affect the judgment in the case and to require a refusal of permission to file the bill of exceptions at this time.

Application by the prosecuting attorney for leave to file bill of exceptions overruled.

. Overruled.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


author: Spear, J.

text:
    Miller v. The State of Ohio.

      Proceedings in error — Limitations—Section 6723, Revised Statutes — Proceedings to reverse, vacate or modify to commence within four months — Does not apply to criminal cases, when —Comment of attorney during absence of judge cause for reversal of judgment, when.

    1. Section 6723, Revised Statutes, -which fixes a limitation of four months for the commencement of proceedings to reverse, vacate or modify a judgment or final order, does not govern the time within which proceedings may be commenced to reverse a sentence and judgment in a criminal case, and there being no provision of statute fixing such limitation, a motion on the part of the accused presented to this court for leave to file a petition in error twenty-two months after the rendition of the judgment complained of, will not be refused ■on the ground that it is not filed in time.
    2. The judge of the court of common pleas is an essential part of the court, and his presence during the trial is necessary to its proper conduct. He should be at all times within sight and hearing of the proceedings, so that he will retain control of all that transpires during the trial and can instantly exert his authority when it is. required. This rule applies especially to the trial of a criminal case.
    3. Where it is shown that a judge during a trial of one accused of murder is so far absent, and for such length of time, as to prevent his control of the conduct of the trial while the prosecuting attorney is making the last argument to the jury, and during such absence that officer, in the hearing of the jury, comments upon matters not in evidence and extraneous to the case, which are calculated to work serious prejudice to the defendant, and accuses the defendant’s counsel of conduct apart from the proceedings of the trial of a highly unprofessional or criminal character, such prejudice will be presumed as to require a reversal of the judgment.
    (Decided January 16, 1906.)
    Motion for leave to file petition in error to tlie Circuit Court of Wyandot county.
    At tlie April term, 1901, of tlie common pleas of Wyandot, Willis Miller was convicted of murder in the second degree. Sentence followed, which upon error to the circuit court was at its January term, 1904, affirmed. The principal grounds urged for the motion, and for a reversal of the judgment below are the absence of the trial judge from the court room during a portion of the closing argument for the state and the misconduct of the prosecuting attorney during that absence.
    From the bill of exceptions it appears that during the absence of the judge certain proceedings were had, which are indicated by the extract which follows:

      “ And thereupon argument to the jury proceeded; and during the closing argument for the state, Mr. Meek, the prosecuting attorney, among other things, said: ‘We have had the judgment of seventy-five men supporting the state.’ ”
    By Clayton: “We object and except to that remark. ’ ’
    By Meok : “ I do not mean in this Willis Miller case, gentlemen of the jury; I do not mean it that way. ’ ’
    (The presiding judge left the court room and did not return during the remainder of the argument.)
    By Meck : ‘ ‘ Gentlemen of the jury, Mr. Burket says I acted dishonestly in this matter.”
    Burket: “I object and take exceptions to that remark of the prosecuting attorney. I said he acted ungentlemanly and unprofessionally. ”
    Meck: “No, sir, I have your very remark, and I took it down. He said, gentlemen, I acted dishonestly. That’s what you said Burket and you are taking exceptions to your own remarks. I say, you said to this jury, that I acted dishonestly. Now, do you want to take it hack?”
    Burket : “I don’t believe I said it. ’’
    .Meck: “Well, I thought, gentlemen, the gentle-
    men talking to'you yesterday would not believe their own statements, if they saw them in print. Well,, it’s a good thing for Mr. Burket, to withdraw his remark, because I was just about to pay my compliments to Burket; and if he withdraws that remark I will not stick the knife as deep in him as I would otherwise have stuck it. Burket was a stranger, hut I want to tell you that I have learned that he is a very clever ‘Alibi Fixer/ ”

    Burket: “I object and take exceptions to that statement.”
    Meck: “I say to you, gentlemen, that somebody fixes these alibis. I am finding alibis, alibis, alibis,
      since the twenty-eighth day of last April, when we began these trials; and I expect to meet an alibi as much as I expect to meet a jury. Alibis! They have a manufacturing establishment over there in Find-lay where they have alibis made to suit the occasion and I understand that Charles O. Burket was the foreman of it.”
    Burket: “I object and take exceptions to that improper statement to the jury.”
    Meck: “Yes, gentlemen, I presume they would take exceptions, but the alibis are ready; as soon as some one gets in trouble in Findlay they have an ali-bi. It puts me in mind of the story told of the negro that was convicted, who told the court, ‘Why, judge, I ought to have a new trial because I have two more alibis,’ and we have the same condition, for alibis are just as plenty over in Findlay. In fact, do you suppose I would not be surprised if I came in this case and found they had.no alibi? •’Why don’t they introduce some other defense at least in connection with the alibi? I am tired of this thing of having to meet bogus alibis, and I have had to fight alibis and alibis, case after case, and it makes a man weary, gentlemen. There are other defenses, and one is insanity, that they might set up, but they don’t claim to be insane, and I believe they represent one of the smartest of criminals. Why don’t you put up the defense of good character?”
    Clayton: “We object and except.”
    Meck: “Of course a man is presumed to have a good character unless the contrary is shown, but in a criminal case a man has a right to produce evidence of good character by his neighbors and friends to show that he is a man not liable to commit a crime. ’ ’

      Clayton : “We except. ’ ’
    Meck: “I would like to have a man put up a defense of that character. You must not forget that I am fighting for the fifth time for the state and never meeting any other defense hut an alibi is getting monotonous.”
    Clayton: “We except to this.”
    Meck : “And they have put up an alibi, and it is what we call, in the language of Gassy Hunt, ‘A Findlay alibi!’ ”

    Clayton: “We except.”
    Meck: “Yes, you gentlemen would take exceptions to my living, I guess. Now, as to Cora Landis. Why, she would testify to anything that Burket and the rest of them would ask her to.”
    Burket: “I except.”
    Meck: “Yes, and Bert Foster and Burket evidently worked up the alibi. They were over there together.1 ’
    Burket: “Note our exceptions.”
    Meck: “Yes, I would take exceptions, and I do take exceptions to your fixing up alibis. Those are my exceptions.”
    Burket : “Mrs. Ellis testified she never talked to me in her life.”
    Meck : “I say Bert Foster went down and talked to her, and I say you and Bert Foster together fixed up the alibi, and you know Bert Foster testified that you were at their house and he then talked to Lucy Ellis, and you then fixed up that alibi.”

    Burket: “Note our exceptions to these remarks. ’ ’
    Meck: “I did put Mrs. Landis upon the witness stand for the state, hut I took all precautions to support her and notwithstanding that support I had for her I knew how the jury threw her testimony to the winds. It was not necessary for us to have her testimony to get a conviction in the other cases. I say how strong the Charley Foster case was! How strong the George Ury case was, and it was not necessary that we would use Mrs. Landis in order to' convict them.”
    ' Clayton: “Note our exceptions.”
    Meck: “Yes, hoys, take your exceptions. Gentlemen, they hate to have the pot uncovered and let you see what they have.”
    Meck : ‘ ‘ They have gone to the expense of getting here Charley Foster and George Ury, and they have them over here in the jail in calling distance, and they have put the county to the expense of getting them here and they do not call them. ’ ’
    Clayton : ‘ ‘ Note exceptions. ’ ’
    Meck: “Note all the exceptions you please. DO' you say it is not true?”
    Clayton: “We say there is no evidence to that effect and you have no right to make these remarks. ’ ’’ Meck : ‘ ‘ Guard Lime said he was here with them, didn’t he? I want to know why you put the county to the expense of getting Charles Foster and George’ Ury here and did not put them on the witness stand?' They dared not, gentlemen, the only inference natural to be drawn from that is they couldn’t do them any good. You have subpoenaed Marsh Lindsay and you have Mrs. George Ury subpoenaed — who else have you not got subpoenaed? Why don’t you put-them on the witness stand? Why, gentlemen, the only natural presumption or inference that, you can draw from it is that they cannot do them any good.”

      Meok : “I have heard it claimed, gentlemen, that George Ury was not there. Why don’t you show the jury that George Ury was not at the Johnson home? I will tell you why you want to show it to show that Mrs. Johnson and her son Albro made a mistake, but you cannot do it. Why don’t you show Charley Foster was not there? If you show Charley Foster was not there you show this jury that Mrs. Johnson and her son had made a mistake, but you can not do it. Why not show that Lock Foster was not there and Marsh Lindsay was not there? You cannot do it. Why don’t you show the rig was not out?”
    Clayton: “Note our exceptions.”
    Meck: “You have tried to berate Mrs. Johnson and her children in every way possible. You have misrepresented her; in fact, you have lied about her, and you cannot show where she made a single mistake in these five trials — ”
    Clayton: “We except.”
    Meck: “You must, concede by the fact that you don’t try to prove the whereabouts of Charley Foster, Lock Foster, Marsh Lindsay, and George Ury, you must virtually concede that Mrs. Johnson was right in four out of five trials. You must concede it and you do concede it. That’s a fact — ”
    Clayton : “We except.’’
    Meck: “And, gentlemen, what Dickson says is not denied. You have a right to consider that what he said has not been denied.”
    Clayton: “It is denied by the defendant’s plea of not guilty.”
    Meck : “It is not denied by the plea of not guilty. I say the defendant has plead not guilty and that’s all lie did. I say there has not any witness appeared before the jury and says what Charles Dickson testified to is not true.”
    Clayton : “We except to this. ”
    Mece: “I asked Sheriff Cliffe if he had told Dickson what to state and they objected, objected. I don’t know whether Willis Miller told him what he testified to or not, but I do say it is not denied by anybody. ’ ’
    Clayton : “ Note our exceptions. ’ ’
    At the conclusion of Mr. Meclc’s remarks:
    Clayton: “If the court pleases, during your absence from the court room or the bench, almost all the time the prosecuting attorney has been arguing to the jury the case, he has made many remarks exceedingly prejudicial to the defendant for which we have had no opportunity to make our objections and exceptions to the court, although we excepted, and now we wish the record to show that we call your attention to and protest against these improper and prejudicial remarks.”
    The Court : ‘ ‘ The court will now give the jury a ten minutes recess and you may put such things as you excepted to in writing and the court will instruct the jury full upon those matters.”
    And thereupon a recess of ten minutes was had, after which:
    Clayton: “We have not been able, your honor, to reduce the matters to which we excepted to writing, but we except, however, to the many prejudicial remarks and improper conduct of the prosecuting attorney in his closing address to the jury and we also except to the fact that the presiding judge was absent from the room during the time of his address or the greater portion of it, during the utterance of those remarks, which prevented us from making our objections at the time to the court.”
    The Court: “We will proceed with the case. ’’

      Messrs. Young ds Wanamaker, for plaintiff in error,
    cited and commented upon the following authorities:

      Meredith v. People, 84 Ill., 479; Thompson v. People, 144 Ill., 378; Smith v. Sherwood, 95 Wis., 558; 70 N. W. Rep., 682; 21 Ency. of Pl. & Prac., 978; People v. Tupper, 122 Cal., 424; People v. Blackman, 127 Cal., 248; O’Brien v. People, 17 Colo., 561; Palin v. State, 38 Neb., 867; Graves v. People, 18 Colo., 170; Bateson v. State, Tex. Crim. App., 80; State v. Smith, 47 Conn., 383; Slaughter v. United States, 82 S. W. Rep., 732; 1 Thompson on Trials, secs. 212, 955, 963; Stode v. Beuerman, 59 Kan., 586; Stokes v. State, 71 Ark., 112; Ellerbee v. State, 75 Miss., 522; Home v. Rogers, 110 Ga., 362; O’Shields v. State, 81 Ga., 301; Pritchett v. State, 92 Ga., 65; State v. Carnagy, 106 Ia., 483; Carney v. State, 85 S. W. Rep., 7; Hayes v. Smith, 62 Ohio St., 161; Railroad Co. v. Pritschau, 69 Ohio St., 446; Sasse v. State, 68 Wis., 530; Brotvn v. Swineford, 44 Wis., 282; Magoon v. Railway Co., 67 Vt., 177; Sullivan v. Deiter, 86 Mich., 404; Bremmer v. Railway Co., 61 Wis., 114; Tucker v. Henniker, 41 N. H., 317; State v. Smith, 75 N. C., 306; Ferguson v. State, 49 Ind., 33; State v. Hannett, 54 Vt., 83; Bullard v. Railway Co., 64 N. H, 27; Perkins v. Burley, 64 N. H., 524; Coble v. Coble, 79 N. C., 589; Proctor v. DeCamp, 83 Ind., 559; Batteshill v. Humphrey, 64 Mich., 514; Rickabus v. Gott, 51 Mich., 227; Bond v. Railroad Co., 62 Mich., 643; People v. Hare, 57 Mich., 505; State v. Clouser, 69 Ia., 313; Davis v. Hill, 75 N. C., 224; Rudolph v. Land Werlen, 92 Ind., 34; Evans v. Trenton, 112 Mo., 390.

      Mr. Benjamin Meek and Mr. George Goodrich, for defendant in error.
    Mr. Meek cited previous brief by himself in Lindsey v. State, 69 Ohio St., 215, and sections 6723 and 7352, Revised Statutes.
   Spear, J.

The case on its merits is submitted on the motion. A preliminary question is presented which is that the motion should be denied because not commenced within the time prescribed by the statute, section 6723, Revised Statutes. That section is:

“No proceedings to reverse, vacate or modify a judgment or final order shall be commenced, unless within four months after the rendition of the judgment or the making of the final order complained of; or in case the person entitled to such proceedings is an infant, a person of unsound mind or imprisoned, within four months as aforesaid, exclusive of the time of such disability.”

It is to be observed that the section quoted is incorporated under the head of Title IV of Part 3rd of the Statutes, entitled Error, Mandamus and Quo Warranto. As these subjects come wholly within the province of actions and proceedings other than criminal, the chapter is not necessarily a guide to the rule which should obtain in criminal proceedings. Part 4th follows, which is entitled Penal, and embraces Crimes and Offenses, Criminal Procedure, Jails and the Penitentiary. Chapter 8 of Title II of this part includes sections 7336 to 7361, which make provision for cases in which error may be brought, and for the procedure thereunder. In all these provisions, applying as they do specially to criminal cases, no limit is placed on the filing of the petition in error. We are of opinion that it was not the intention of the general assembly to place a limit on such error proceedings, and, therefore, the objection of counsel is not well taken. This conclusion is supported by the holding in Blackburn v. The State, 22 Ohio St., 581, where the precise question was made, and it was there ruled that under the statutes as then existing the limit controlling civil actions and proceedings did not apply. We know of no change in the statutes in this particular since.

Coming to the grounds of error urged we find that two are serious. One relates to the conduct of the prosecuting attorney during his closing argument to the jury, and the other to the absence of the trial judge from the court room during a portion of that argument. The facts are fully set out in the statement, and it would needlessly encumber the record to repeat them here. It is apparent that the prosecuting attorney, in the course of his address to the jury, charged counsel for the prisoner with conduct in the highest degree unprofessional, if not indeed criminal, and made statements of alleged conduct of counsel extraneous to the inquiry before the jury, and not pretended to be supported by the evidence in the case on trial, and referred to other matters not in evidence, all which were in their nature calculated to work serious prejudice to the defendant. This was a distinct departure from the line of official duty. It is incumbent upon a prosecuting attorney to aid the administration of justice, and not to so conduct himself during a trial as to defeat the purpose of the law which accords to every person accused of crime a fair and impartial trial. And this is no less a duty where the prosecutor believes the offender guilty. The evident effect of this misconduct was in no wise removed or modified by any action of the court, if indeed it could have been, but was left to work inevitable mischief and prejudice in the minds of the jurors. That this error should have been corrected by granting the motion for a new trial needs no argument in its support. The general subject as to conduct of counsel is fully treated in Hayes v. Smith, 62 Ohio St., 161, and in C. P. Ry. Co. v. Pritschau, 69 Ohio St., 438, which decisions afford abundant authority for the conclusion above stated. Had the wholesome doctrine of those cases been heeded it is probable that ground for this error proceeding would not have arisen.

The absence of the trial judge from the court room during a portion of the argument referred to we regard also as error. It was stated by the present chief justice on another occasion that “the trial judge is not merely a part of the court, an important part of the court, the controlling part of the court, but he is an essential part of the court. While he is present the court is in session until adjournment; but his absence from the court room at any time disintegrates the court. * * * It would be reversible error if anything detrimental to the losing party should occur during such absence. He must be where he can instantly exert his authority where it is required.” We are of the opinion that this correctly states the law. It may be that this presence of the judge does not imply that he must be every moment absolutely within the court room, but, as held in a Texas case, he should be at least within sight and hearing of the proceedings so that he will retain control of all that transpires during the trial, and if it become necessary for him to be absent so that he cannot instantly exercise his control, he should suspend the proceeding until his return. To the same effect is a Connecticut case where it is held “that it is the duty of the presiding judge at criminal trials and especially where life is involved to be visibly present every moment of their actual progress, so that he can both see and hear all that is being done. This is a right decreed to the accused by the law of the land of which he cannot be deprived.” These conclusions are abundantly sustained by authorities other than those referred to, many of which will be found cited by the diligent counsel.

It is suggested that the judge was in an adjoining room preparing his charge to the jury. This fact, if it is such, cannot excuse the omission. It is manifest that the judge was too far away to have any oversight over the trial, for it is inconceivable that any self-respecting judge of the court of common pleas, had he ■ observed what was passing before the jury, could have failed to promptly and vigorously repress it.

Attention is called by counsel for the state to the fact that on the return of the judge to the court room he ordered a recess of ten minutes to enable counsel for the defendant to put their exceptions in writing so that he could pass upon them, which opportunity was not improved by counsel. We do not perceive that this can alter the case. Ten minutes would hardly suffice to acquaint the court with all the grounds of exception. But whether so or not the mischief had been done.

Attention is also called by counsel to tbe fact that tbe claim of misconduct is not supported by affi-. davits conformably to section 7352, Revised Statutes. This provisión is not exclusive of all other modes of proof.' It appears by the bill of exceptions that the trial judge ordered the official stenographer to furnish to defendant’s counsel a transcript of the proceedings as well as of the evidence, and the proceedings hereinbefore recited are incorporated as part of the bill of exceptions allowed and signed by the trial judge officially, and this we hold to be evidence of what actually occurred during the trial at least as of as high character as would, be the affidavits of witnesses.

This court has uniformly refused to set aside judgments of conviction except in cases- where the grounds of error were clear and the error manifestly prejudicial. The court is fully aware of the inconvenience and necessary expense incident to another trial of this case, but these considerations lose force where it appears that the accused has not had such a trial as the-constitution guarantees to Mm and which it is the duty of the trial court to accord.

The motion is sustained. The judgments below will be reversed and the cause remanded to the court of common pleas for further proceedings according to law.

Reversed.

Davis, C. J., Shauck, Price, Crew and Summers, JJ., concur.


author: Summers, J.

text:
    The City of Columbus v. Penrod.

      Permit by city to use street — -For placing building materials— Is mere regulation and not a license — City not liable for damages, when — Question of notice to city.

    A permit by a city to use part of the street for the placing of building materials for use in the construction of a building on the adjacent property is the mere regulation of a right of the property owner to make such use of the street and not a license to do an act in the street which but for such license would be illegal or a nuisance, and a city by giving such permit is not charged with the duty of seeing that the place is guarded, and will not be liable in damages to a person injured in consequence of the omission to guard such place with barriers or lights unless it had notice express or implied of such omission and after such notice was guilty of negligence.
    (No. 9468
    Decided January 16, 1906.)
    Error to tbe Circuit Court of Franklin county.-
    At about 8:30 o ’clock on tbe nigbt of May 23, .1903, tbe defendant in error, a woman, fell over a mortarboard, four feet square, projecting from tbe street over tbe curb of one of tbe sidewalks in tbe city, and was seriously injured. A permit to use part of tbe street as a place for depositing building material for tbe construction of a bouse on tbe abutting lot bad been obtained from tbe city and tbe mortarboard bad been placed in tbe street three and a balf days before tbe accident by one of tbe employes of tbe brick-mason wbo bad tbe Contract for the construction of tbe chimneys. She sued tbe city to recover damages for her injuries, averring that tbe city in violation of its duties authorized and per-' mitted tbe obstruction of tbe street with building material, and that it negligently, with full knowledge of the existence of the obstructions in the street, permitted the same to remain there without any safeguards or lights. The city denied these averments and plaintiff recovered and the circuit court affirmed.
    The jury with the general verdict returned the following special findings upon the following particular questions of fact-:

      Special Finding No. 1. — Upon what obstruction did the plaintiff stumble ? Answer: Mortar board.

      Special Finding No. 2. — Who placed on the sidewalk the thing or obstruction on which, or over which the plaintiff stumbled? Answer: J. Jackson, for Contractor Kuntz.

      Special Finding No. 3. — How many days prior to the accident had this thing or obstruction over which plaintiff stumbled been placed on the sidewalk? Answer: Three and one-half days.

      Special Finding No. 4. — Did the defendant, The City of Columbus, have. any actual notice of the obstruction on the sidewalk, over which the plaintiff stumbled? Answer: Dun notified policeman on duty in that district.

      Special Finding No. 5. — If the defendant, The City of Columbus, had actual notice of the existence of the said obstruction on the sidewalk before the accident, to whom, or through whom had this actual notice been given? Answer: The officer on the district.

      Special Finding No. 6. — If the defendant, The City of Columbus, had, prior to the accident, received actual notice of the thing or obstruction on the sidewalk, over which plaintiff fell or stumbled, how many days prior to the accident had this notice been given or received? Answer: From one to two weeks.

      The city moved for a judgment in its favor on the special findings of fact notwithstanding the general verdict and excepted to the action of the court in overruling the same.

      Mr. James M. Butler; Mr. David T. Keatmg; Mr. George S. Marshall and Mr. Edgar L. Weinland, for plaintiff in error.
    The verdict is manifestly against the weight of the evidence and contrary to law, for the principal reason that the city was without any notice, either actual or constructive, of the alleged defect and obstruction. Dillon’s Municipal Corporations, secs. 730, 1025-1034; Ellis’ Municipal Code, 120; Chase v. Cleveland, 44 Ohio St., 505; Beach on Public Corporations, secs. 1230, 1431; Clark v. Fry, 8 Ohio St., 358; Village v. Kallager, 52 Ohio St., 183; Freemont v. Dunlap, 59 Ohio St., 286; Troy v. Brady, 67 Ohio St., 69; Copeland, Exr. v. City of Seattle, 65 L. R. A., 333; Village of Groveport v. Bradfield, 1 Circ. Dec., 411; 2 C. C. R., 145; Bradfield v. Groveport (Vil.), 30 W. L. B., 351; Ft. Wayne v. DeWitt, 47 Ind., 391; 2 Thompson on Negligence, 762; Dundas v. Lansing City, 75 Mich., 499; Huntley v. Railroad Co., 38 Mich., 540; Collins v. Dorchester, 6 Cush., 396; Robinson v. Railroad Co., 7 Gray, 92; Carter v. Monticello, 68 Ia., 178; Village of Shelby v. Clagett, 46 Ohio St., 549.
    It was error to permit the witness to testify concerning his conversation with the policeman relative to the general obstruction in the street and on the sidewalk at the point where the accident occurred. City of Cleveland v. Payne, 72 Ohio St., 347; McGoverns. Mt. Vernon, 1 O. S. C. D., 54; 22 W. L. B., 363; City of Columbus v. Ogletree, 22 S. E. Rep., 709; 96 Ga., 177; Cook v. Anamosa, 66 Ia., 427; Frazier v. Borough of Butler, 172 Pa. St., 407; Town of Norman v. Teel, 69 Pac. Rep., 791; Sprauge v. City of Rochester, 34 N. Y. S., 1126; Rich v. City of Rockland, 87 Me., 188; Bartges v. O’Neils, 13 Ohio St., 72; Board of Education v. Mills, 38 Ohio St., 383; Baldwin v. Bank, 1 Ohio St., 141; Sherer v. Piper, 26 Ohio St., 476; Lowe v. Lehman, 15 Ohio St., 179.
    It was error to permit plaintiff to introduce in evidence the building permit and an ordinance of the city of Columbus relating to the manner in which the street and sidewalk should he used by persons constructing buildings. Shearman & Redfield on Law of Negligence, sec. 262; City of Lafayette v. Timberlake, 88 Ind., 330; Tiedeman on Municipal Corporations, sec. 27; Custer v. City of New Philadelphia, 11 Circ. Dec., 9; 20 C. C. R., 177; Copeland, Exr. v. City of Seattle, 65 L. R. A., 333.

      Mr. E. M. Baldridge and Mr. F. V. Owen, for defendant in error,
    cited and commented upon the following authorities: ’

      District of Columbia v. Woodbury, 136 U. S., 464; Gable v. The City of Toledo, 9 Circ. Dec., 63; 16 C. C. R., 515; Circleville v. Neuding, 41 Ohio St., 465; Railroad v. Morey, 47 Ohio St., 207; Cleveland v. King, 132 U. S., 295; McPherson v. District of Columbia, 7 Mackey’s, 651; Mayor, etc. v. Donnelly, 71 Ga., 258; Wilson v. Watertown, 5 T. & C. (N. Y.), 579; Hewitt v. The City of Cleveland, 11 Circ. Dec., 710; 21 C. C. R., 505; Indianapolis v. Doherty, 71 Ind., 5; Russell v. Columbia, 74 Mo., 480; Dillon on Municipal Corporations, 1027; 5 Thompson on Negligence, 5971; Brown v. Swanton, 69 Vt., 53; Meek v. Pennsylvania Co., 38 Ohio St., 632; Cleveland v.
      King, 132 U. S., 295; Schweinfurth, Admr. v. Railwny Co., 60 Ohio St., 215; Davis v. Turner, 69 Ohio St., 101; 48 W. L. B., 962; Electric Street Railway Co. v. Bateman, 8 Circ. Dec., 220; 16 C. C. R., 162; Railroad Co. v. Stoltz, 9 Circ. Dec., 638; 18 C. C. R., 93; sec. 2640, Rev. Stat.
   Summers, J.

The contention on the part of the city may he summarized as: That the special finding is in effect that the city had no knowledge or notice other than that of the policeman, and there being no evidence of any facts tending to prove constructive notice that the mortar-board was in a position to endanger the use of the sidewalk, the city was entitled to a judgment in its favor on the special findings.

The circuit court, so it is said by counsel for defendant in error, ruled that notice was not necessary because it was the duty of the city, having given the permit, to see that proper precautions were taken to prevent accidents, and on the trial in the court of common pleas an ordinance of the city authorizing the granting of permits for such use of the streets and prescribing the mode of use and the manner of safeguarding the same was admitted in evidence for the purpose of showing wherein the city had neglected its duty.

That the knowledge of the policeman or notice to him does not make the city liable is ruled in The City of Cleveland v. Payne, 72 Ohio St., 347, so that the principal question for consideration is whether in an action to recover damages, for ■ personal injuries received from an unguarded or unlighted obstruction in a street, it is necessary to prove that the city had knowledge or notice, when the city had given permission to occupy a part of the street at the place with material for the construction of a building upon the adjacent property; or, differently stated, whether it is the duty of the city when it gives such permission to see that a nuisance is not created.

In Clark v. Fry, 8 Ohio St., 358, it is ruled:

“1. The right of transit in the use of the public highways is subject to such incidental, temporary, or partial obstructions as manifest necessity requires; and among these are the temporary impediments necessarily occasioned in the building and repair of houses on lots fronting upon the streets of a city, and in the construction of sewers, cellar-drains, etc. These are not invasions, but qualifications, of the right of transit on the public highway; and the limitation on them is, that they must not be unnecessarily and unreasonably interposed or prolonged.
“2. Such temporary obstructions upon the highway, when guarded with due care to prevent danger to the public, and not unnecessarily exténded or continued, are not nuisances, and do not require a license from the municipal authority to legalize them, although suitable regulations by the city authorities, requiring such obstructions to be properly guarded, and to prevent them from being made in.an improper manner, or continued unreasonably, are usual and highly proper. ’ ’

If the regulation of such obstructions is highly proper it would seem unreasonable to hold that a regulation, requiring a permit to be obtained, may be enforced only at the risk of becoming liable in damages for such injuries as may resuit from its abuse; and strange that such regulation is usual.

An examination of the cases will show that it is only when the city is the actor or in cases of license by the city to do an intrinsically dangerous thing in the street and not in cases properly of mere regulation that the city is liable without notice, or is charged with notice by the fact that it gave the permit to do the thing in the street. An ordinance regulating the use of the street for such purposes emanates from the police power of the city and the granting of the permit under it or neglect to enforce its provisions cannot make it civilly liable to an individual in consequence.

Referring to the cases cited by counsel for defendant in error, we observe that Gable v. The City of Toledo, 16 C. C. R., 515, is a case of permission to make a dangerous excavation in the street.

Circleville v. Neuding, 41 Ohio St., 465, and Railroad Co. v. Morey, 47 Ohio St., 207, are cases of dangerous excavations in the street, and are not in point for the reason that the question there decided is, that a party causing a dangerous excavation in a street cannot escape liability on the ground that the work was done by an independent contractor.

The judgment of the circuit court in Hewitt v. The City of Cleveland, 21 C. C. R., 505, is reversed, and that of the court of common pleas affirmed by this court in Cleveland v. Hewitt, 67 Ohio St., 534.

McPherson v. The District of Columbia, 7 Mackey’s, 564, and The Mayor, etc. v. Donnelly, 71 Ga., 258, are cases of excavations in the street.

In Wilson v. City of Watertown, 5 N. Y. Sup. Ct. Rep., 579, a railroad company had been authorized by statute to construct its road across a street with the city’s assent and the company was required to restore the street to its former state. ' The plaintiff sued the city to recover for injuries received from obstructions on the sidewalk placed there by the railroad company and was nonsuited on the ground that the statute made it the duty of the company to restore the street and that this relieved the city of its duty to keep the street safe. The question as to notice was not made, but it is • assumed that notice was necessary. On page 581 it is said: “A municipal corporation may not be liable for an injury caused by a nuisance in a street created without its authority or sanction, of the existence of which it had no notice. But the nonsuit in this case was not put upon that ground, nor does that question arise here, for the reason that there was at least some evidence from which the jury might have been warranted in finding that the defendants had notice of the nuisance which caused the injury to the plaintiff. ’ ’

The- case of The District of Columbia v. Woodbury, 136 U. S., 450, arose out of an excavation in the sidewalk. The opinion is by Mr. Justice Harlan. The instructions to the jury on the trial were given by Cox, J., and Mr. Justice Harlan approves of the following principles which he states were covered the charge:

“3. People must build houses, and, in order to do that it is necessary to excavate for cellars and areas, if needed, and to dig trenches to connect with the water mains, gas pipes and sewers. Nobody has a right to do this without a permit from the authorities, and if any person undertakes to do it without a permit, he would be responsible for any injury resulting; but the District would not be, unless it had the notice already spoken of. If a permit is-granted, as is usually the case, the fact is notice to the authorities that the work is in progress, and then they are charged with the duty of seeing that it is properly conducted.
“4. These works are necessarily dangerous to life and limb, and it is the duty of a person doing the work to protect it against accident to travelers on the street, and the duty of a private person is very much the same as that of the District itself when it is prosecuting an improvement. If a private individual fails to protect the excavation or hole, or whatever it may be, it is the duty of the District authorities to see that it is protected, and they are held responsible that he shall do it, for they were notified that he was going on with the work when he obtained his permit. If the individual himself supplies the protection against danger, then the duty will have been discharged on his part, and that of the District also will have been discharged just the same as in the case of the works being constructed by itself. If, then, by any unforeseen accident or the act of somebody that could not be anticipated, the protection has been removed and new danger supervenes, of course the law about notice applies.”

It is to be noticed that the principles of law there laid down relate to excavations, “works necessarily dangerous. ’ ’

The principles of law given to the jury in King v. Cleveland, 132 U. S., 295, a case of obstructions placed in a street for building purposes, are also approved by Mr. Justice Harlan. The charge to the jury in that case was given by Welker, J., and is reported in King v. Cleveland, 5 Ohio Fed. Dec., 444 (28 Fed. R., 835), and he expressly instructs the jury that the city, notwithstanding it had given permission to occupy a portion of the street with building materials, would not be liable for injuries resulting from a failure to properly barricade or light the obstructions, in the absence of notice, and furthermore that the city having provided in the permit that sufficient lights should be placed to give warning of the obstructions had the right to act upon the assumption that such lights were there. He said: “Without any permit to do so, owners of lots abutting directly on streets in a city like Cleveland have a right to the use of a reasonable or necessary part of the street on which to deposit building materials in the erection of their buildings, and the city could not prevent them from such reasonable use; but they must comply with reasonable requirements made by the city to provide for the safety of persons using the streets.

“Having allowed Mr. Rosenfeld and the contractor, by permits granted in the usual way, to use one-half of the street on which to deposit necessary building materials, with the provision therein as to proper signals, as stated, and such building materials being in the street at the time the plaintiff alleges he received the injury of which he complains, the question arises, what was the duty of the city in seeing that proper guards and proper lights were placed at or near the materials so deposited?

“The principal negligence complained of by the plaintiff is that, being in the night-time, no lights were placed at or near the materials sufficient to warn him of danger as he passed along the street. Having provided in the permits to Rosenfeld and Kostering, the contractor, that in the night-time sufficient lights should be placed by them at or near materials placed and remaining in the street to warn persons passing along of dangerous obstructions, the city had a right to suppose such lights were so placed in the night-time. While it was the general duty of the city to keep its streets in safe condition for the use of persons passing over the same, and liable for injuries caused by its neglect or omission to keep them in repair and reasonably safe, yet in such a case, the basis of the action being negligence, it is not liable for an injury resulting from such negligence unless it had notice or knowledge of the defect that caused the injury before it was sustained ; or, in the absence of express or direct notice, such notice or knowledge may be inferred from facts and circumstances showing that such want of proper lights to denote dangerous obstructions existed for a sufficient period of time, and in such a public and notorious manner, as that the officers representing the city, or those employed by the city for the purpose of removing obstructions in the city, in the exercise of ordinary care and diligence, ought to have known of such want of proper guards in the night-time.

“The city is not an insurer of the absolute safety of persons passing along its streets in the night-time. It is only required to exercise ordinary care for such safety; and, in judging of what would be ordinary care, you are to take into account the great number of streets, and their mileage, contained in the city. If the city, or the officer's or employers representing it, had such notice or knowledge, direct or implied, as I have stated, then it was its duty to see that proper lights in the night-time were , placed at or near the obstructions, such as would be sufficient to warn persons of reasonable and ordinary prudence of the presence of such obstructions; and, failing to do so, it would be liable for injuries resulting from such failure.”

These cases, read in the light of the facts, an excavation in the sidewalk, necessarily dangerous, in the one case, and in the other an obstruction in the street, not necessarily dangerous, consisting of building materials, are not in conflict, arid the present case being one of an obstruction in the street, not necessarily dangerous, we are not required to determine whether Clark v. Fry, supra, in so far as it applies to excavations or obstructions necessarily dangerous is too broad, or whether in a case of permit to the owner of adjacent property to make an excavation in the street for some lawful purpose incident to the use of his property, it would be the duty of the city to see that a nuisance is not created.

To hold that the city may not grant such a permit without assuming the duty of seeing that the obstruction is properly guarded with barriers and lights would require the city to exact from the property owner the expense of doing so, which,, in many cases, would be a hardship on the property owner and an unreasonable regulation; so that, being of the opinion that a permit by a city to use part of the street for the placing of building materials for use in the construction of a building on the adjacent property is a mere regulation of a right of the property owner to make such use of the street and not a license to do an act in the street which but for such license would be illegal or a nuisance, the city by giving such permit is not charged with the duty of seeing that the place is guarded, and will not be liable in damages to a person injured in consequence of the omission to guard such place with barriers or lights unless it had notice express or implied of such omission and after such notice was guilty of negligence.

The judgments of the circuit court and of the court of common pleas are reversed and judgment is entered for the plaintiff in error upon the special findings.

Davis, C. J., Shaitck, Price, Crew and Spear, JJ., concur.