author: Davis, J.

text:
    The City of Mt. Vernon et al. v. The State of Ohio ex rel. Berry.

      Municipal corporation enters into contract mth an individual— Under a statute which is unconstitutional — But subject-matter of contract is not ultra vires nor illegal — Facts such as would estop an individual from defense of unconstitutionality — Municipal corporation likewise estopped — Section 2702, Revised Statutes, does not apply, when — Controversy between parties under contract — Cannot be determined in mandamus proceedings, when.

    1. Where a municipal corporation has entered into a contract with an individual under and by virtue of a statute which is unconstitutional and the subject-matter of the contract is not ultra vires, illegal or malum prohibitum, and the, facts are such, as against the corporation, as would estop an individual from setting up as a defense the unconstitutionality of the statute, the municipal corporation will also be so estopped.
    2. In- such case, when it is provided, in such statute that section 2702, Revised Statutes, shall not apply to contracts made under such statute, such provision must be read as an exception to said section 2702, and the latter section does not apply to contracts made under such statute.
    3. A controversy between the parties to a contract as to their respective rights under the contract cannot be determined in proceedings in mandamus.
    (No. 9046
    Decided January 31, 1905.)
    Error to tbe Circuit Court of Knox county.
    Tbe relator, tbe defendant in error bere, began tbis action in tbe court of common pleas by a. petition praying for a writ of mandamus requiring the' defendants, the president and members of the city council of the city óf Mt. Vernon, to show cause why they should not pass the ordinance providing for the assessment of that portion of the cost of a street improvement contracted for between the city and the relator that was to be paid for by abutting property owners, and requiring them to pass an ordinance providing for the issuing of the bonds of the city, and to1 proceed to sell the same and out of the proceeds thereof to pay to the relator the , sum of $28,064.24, with interest, which the relator claimed to be due him upon the said contract. The answer of the defendants admitted many of the allegations of the petition, and denied each and every other allegation therein contained which was not specifically admitted to be true, which included a denial of an allegation in the relator’s petition that the contract between him and the city had been completed and that he had furnished the material and performed the work therein specified according to the plans, specifications and profile of said work, in every respect in a workmanlike manner and according to said contract^ and to the satisfaction and acceptance of the civil engineer and paving committee of the city of Mt. Vernon. The second defense set forth that the contract mentioned in the petition was made by virtue of a special act of the legislature known as an act authorizing and empowering cities of the second class, fourth grade, to cause streets and alleys to be paved with vitrified brick, asphalt or other permanent pavement, to pay one-half of the costs, and to issue bonds' for such purposes (94 O. L., 119), which act is alleged to be in contravention of article 2, section. 26, of the constitution of Ohio. The third defense set forth in the answer alleges that at the time that the improvement was let and the pretended contract entered into there was no corporation auditor in said city, and that the city clerk did not certify that the money required for the contract or to pay the appropriation or expenditure was in the treasury to the credit of the fund from which it was to be drawn and not appropriated for any other purpose, and that there was no certificate to that effect filed and recorded as provided by the statute of Ohio. On hearing in the common pleas court, judgment was rendered for the defendants and the petition dismissed at the costs of the relator. An appeal was taken to the circuit court, and in that court the relator demurred to the second and third defenses of the defendants’ answer for the reason that they do not state facts sufficient to constitute a defense to the plaintiff’s cause of action, which demurrer was sustained by the circuit court. Upon the request of the parties to the suit the court made a separate finding of facts and conclusions of law, and thereupon rendered judgment for the relator.
    1. That the relator, W. J. Berry, entered into the contract with the city of Mt. Vernon, Ohio, through its city council, for the paving of a portion of Gambier street in said city as stated in the petition.
    2. That- said relator substantially performed the portion of said contract on his part to be performed.
    3. That said work was to be done and performed in a good and workmanlike manner and to the satisfaction of the city civil engineer and the paving committee of said city council as in the petition set forth.

      4. That said committee of said council examined said work when it was completed by said W. J. Berry and were satisfied therewith, except as to some particular defects, which they called to the attention of the said W. J. Berry and which he agreed to remedy; and thereupon said committee prepared and signed a report, in writing, to the city council, expressing its satisfaction with the work done and recommended payment of the same, but said report was never filed with the city council and said city council never took any action thereon; and said committee did not intend that the said report should be its report, or that the same should be filed until the repairs it had suggested should be made to the ■ satisfaction of the city civil engineer as suggested by them to the relator, and as he had agreed to do.
    5. That said W. J. Berry did perform further labor upon said streets and did attempt to remedy the alleged defects pointed out to him by the paving committee of said council and did remedy said defects to the satisfaction of the city civil engineer; but said committee never re-examined the same or attempted as a committee to advise itself whether said work was completed or not and that before the bringing of this suit, the term of office as councilmen of said committee on paving had expired, .and said committee and said council, as a committee or as a council never took any action whatever upon the claim of said W. J. Berry for compensation under the contract.
    6. That while the contract of the said W. J. Berry is substantially performed, there are some defects in material and workmanship which were not apparent at the time he claimed to have completed said work in accordance with the instructions of said committee, but that the same are of small importance, compared with the entire work performed by him, and the failure on the part of Berry to remedy these defects is attributable to the fault of the council and its paving committee in delaying and neglecting to take action in reference to the acceptance of the same.
    We therefore find as our conclusions of law:
    1. That the said plaintiff, W. J. Berry, is entitled to have peremptory writ issue in this action, directing said council to proceed and sell its city bonds and apply the proceeds of the sale of the same to the payment of the amount due plaintiff under his contract less the seven and one-half per cent, which by the terms of said contract said city is entitled to retain as. further guarantee of the material and workmanship upon the said W. J. Berry remedying the defects in workmanship and material now existing in said pavement to the satisfaction of the city civil engineer of the said city of Mt. Vernon in office at the time said work is so completed by the said Berry, and that upon his furnishing the material and doing said work within ninety days said writ may issue.
    2. That said W. J. Berry is entitled to interest upon the amount due to him upon said contract from the date of the commencement' of this action.
    3. That each party pay their own costs made and taxed in this action. To which finding of facts and conclusions of law the defendants except.
    It is therefore considered, adjudged, ordered and decreed by the court that said contractor shall furnish the material and labor and put said Grambier street and Grambier avenue in good condition as required by said contract, to the acceptance of the said civil engineer of the city of Mt. Vernon, Ohio, within ninety days from this date, and upon such work being done to the acceptance of said civil engineer of city of Mt. Vernon, Ohio, then that a peremptory writ of mandamus issue out of this court commanding and directing Charles C. lams, E. C. Beggs, Jethro Mill, George Cheney, Henry Bowden, Samuel A. Trott, Michael Nixon, and B. E. Salisbury, members of the city council of the city of Mt. Vernon, Ohio, to assess according to law upon the abutting property the portion of the cost of making said improvement provided for in said contract to be paid by the owners of said Abutting property, and if said owners shall not elect within thirty days to pay said assessment in cash, then that they issue bonds in anticipation of the collection of said assessment; that the defendants provide for and issue the bonds of the city of Mt. Vernon, Ohio, according to law for the payment of that portion of the cost and expense of said improvement to be paid by said city; that they sell and dispose of all said bonds and out of the proceeds thereof they pay to the contractor, W. J. Berry, the sum of $26,006.20 with interest thereon from, the sixteenth day of May, 1903, being the amount found due by the court to said W. J. Berry on said contract, less the seven and one-half per cent, to be retained by the city of Mt. Vernon, Ohio, under the provisions of said contract for the period of five years. It is further ordered and adjudged by the court that the relator, W. J. Berry, pay his own costs in this , case taxed at $--, and that the defendants pay their own costs herein, taxed at $--. To all of which findings, decrees and judgment the defendants except.
    Thereupon came the defendants and moved the court to set aside its finding and judgment herein for reasons set ont in said motion, and the court being fully advised in the premises, overruled said motion, to which ruling of the court the defendants except, and the parties hereto are given twenty days for a finding of law and facts and the statutory time for the presenting and the signing of the bill of exceptions herein.
    Other facts in the case sufficiently appear in the opinion. This proceeding in error is prosecuted to reverse the judgment of the circuit court.

      Mr. J. B. Graham; Mr. F. V. Owen and Mr. J. M. Butler, attorneys for plaintiffs in error.
    The judgment and decree of the circuit court should be reversed for the following reasons:
    The act of the legislature authorizing the contract and improvements in question, passed April 10, 1900 (94 O. L., 119), is in contravention of the constitution.
    The contract is void and the relator without remedy, because there was no certificate that the money required to pay for this improvement was in the treasury to the credit of the fund from which it was to be drawn; and especially because the city clerk did not certify that there was in the treasury to the credit of the fund from which was to be drawn the money required to pay the city’s share of the expenditure caused by the improvement.
    The plaintiff below had an adequate remedy at law. The facts as found by the circuit court do not support or justify its conclusions of law.
    Let our- text be these from the constitution of the state of Ohio: Section 26, art. 2; sec. 1, art. 13; sec. 6, art. 13. It would probably not be impossible to convince the court that the law in question is in contravention of each of these express limitations. The mere citation of the following cases is sufficient: Platt v. Craig et al., 66 Ohio St., 75; State ex rel. v. Cowles, 64 Ohio St., 162; State ex rel. v. Jones, 66 Ohio St., 453; State ex rel. v. Beacom, 66 Ohio St., 491; State ex rel. v. Spellmire, 67 Ohio St., 77; State v. Lewis, 69 Ohio St., 202.
    In fact, in the courts below, counsel for the relator were compelled to admit the nnconstitntionality of the law, but attempted to evade the consequences of that admission by the claim that the city is estopped from asserting the invalidity of the statute and the legality of the contract under it, after the work has been completed by the relator.

    If their contention be correct, then this law, though confessedly unconstitutional, is just as effective as a valid enactment. Consequently the real question is, does estoppel prevent a municipality from denying its liability on a contract which has been made in violation of the constitution of the state? Smith’s Modern Law of Municipal Corporations, see. 1672; and in support of that doctrine the author cites: Snyder v. City of Mt. Pulaski, 176 Ill., 397; Seeger v. Mueller, 133 Ill., 86; Pettis v. Johnson, 56 Ind., 139; Stevens v. St. Mary’s Tr. School, 144 Ill., 336; Day v. Green, 4 Cush. (Mass.), 433; Noel v. San Antonio, 11 Tex. Civ. App., 580.
    See also Smith, supra, sec. 227; Sutro v. Pettit, 74 Cal., 332; Town of East Oakley v. Skinner, 94 N. W. Rep., 255.
    If in the case at bar, the city had made the assessment, issued the bonds, and sold them, the purchasers would have placed themselves in the same position as the respondents in the case of Sutro v. Pettit, supra. The bonds would have been worthless and the collection could not have been enforced because they would have been issued without authority. Smith on Modern Law of Municipal Corporations, sec. 1001; St. Joseph Tp. v. Rogers, 16 Wall., 644; Merchants, etc., Bank v. Bergen Co., 115 U. S., 384.
    Our Supreme Court have certainly spoken clearly and conclusively on the question. McCloud & Giegle v. Columbus, 54 Ohio St., 439; Wellston v. Morgan, 65 Ohio St., 219; Lancaster v. Miller, 58 Ohio St., 575.
    If a municipal corporation is not estopped from setting up statutes in defense to contracts made in disregard of them, why should it be estopped when it has no authority whatever to enter into a contract? We think such a proposition is without reason.
    Counsel for the plaintiff below cited and relied upon the case of Tone v. Columbus, 39 Ohio St., 281. That case is not the case at bar. That was a case of an individual estopped by silence with knowledge of the imprbvement going on. But a very different rule applies where the city acts without authority. It will not be estopped from setting up the invalidity of the contract. A party is not estopped by mere silence, unless he has induced the other party to change to his disadvantage. The holding of the Supreme Court in Tone v. Columbus, supra, that a party is estopped from denying the validity of the assessment by mere silence while the improvement was being made, goes beyond this rule, and is not supported by the holding of that court in Columbus v. Agler, 44 Ohio St., 485, which lays down the true rule, which is, in such cases that the property owner is not called upon to do anything until steps are taken to make the assessment. Lewis, Auditor, v.
      Symmes et al., 61 Ohio St., 487; Comstock v. Nelsonville, 61 Ohio St., 288.
    We have not been unmindful of the possible claim that equity and good conscience require that a contract made under a special law, confessedly unconstitutional at this time, should not be subjected to the doctrine of the Toledo and Cleveland cases. Nor have we overlooked Shoemaker v. Cincinnati, 68 Ohio St., 603.
    Indeed, we have assumed that this court in the Shoemaker case deliberately indicated its policy with respect to special legislation and its effect upon contracts and assessments thereunder. As a matter of fact, we are willing that the principle of that case may be extended. In the Shoemaker case, in the city of Cincinnati, there had been legislation of the same general character, theretofore held to be constitutional. But for the sake of argument we are willing to admit, and equity and good conscience seem to require, that contracts and assessments created under a special law should not depend for their validity upon the fact that in that particular city similar legislation had been held to be constitutional. In our judgment, it is sufficient that legislation of the same general character throughout the state in all cities where the question arose had been held to be constitutional and that the decision of the Supreme Court not only in some particular city, but also in the state as a whole, had become fixed, approximating “a rule of property.” It seems to us that the rules of res adjudicata and stare decisis should be applied in such cases as effectively as they were applied in the Shoemaker case.
    But have the facts in the case at bar justified a claim for any such equity or good conscience? Does the contractor, the defendant in error, present himself so as to require at the hands of this court the application of the principle of the Shoemaker case? What are the facts ?
    The special law under which the contract in the case at bar arose was enacted by the legislature on the tenth day of April, 1900, 94 O. L., 119. On the 26th day of May, 1902, this court handed down the decisions in the Toledo and Cleveland cases, decisions whose meaning even a layman could not misunderstand, decisions which effectively and forever brought us back to the safeguards of the constitution. The printed record discloses that it was subsequent to those decisions,' June 16, 1902, when the contractor submitted his proposition to the council of the city of Mt. Vernon for the work in question. And the petition discloses that the contract was made on the eighth day of July, 1902.
    In other words, after this court had given its maturist consideration to special legislation and after it had with unmistakable clearness declared that all such special legislation should not stand, this contractor deliberately entered into the contract now before this court.
    The contract is void and the relator without remedy, because there was no certificate that the money required to pay for this improvement was in the treasury to the credit of the fund from which it was to be drawn; and especially because the city clerk did not certify that there was in the treasury to the credit of the fund from which it was to be drawn the money required to pay the city’s share of the expenditure caused by the improvemertt.
    It is probably true that no one will contend at this time that if compelled to issue bonds to pay its part of the cost of this improvement, the city of Mt. Vernon could issue such bonds under any law except the general law known as the Longworth act and the amendments thereto, a law. of' general application throughout the state.
    The position of this court as to the requirements of section 2702 and in general as to the requirements of all like statutes, has been So- clearly defined that nothing remains except to cite a few of the leading, cases: Cincinnati v. Holmes, 56 Ohio St., 104; Lancaster v. Miller, 58 Ohio St., 558; Buchanan Bridge Co. v. Campbell et al., 60 Ohio St., 406; Findlay v. Pendleton, 62 Ohio St., 80; Comstock v. Nelsonville, 61 Ohio St., 288.
    . This court has shown no desire to limit the application of section 2702. The Bums law today is probably the best safeguard in the statute books against municipal extravagance. We do not believe that this court will limit the doctrines of the Com-stock case.
    The plaintiff below had an adequate remedy at law. He was not entitled to the extraordinary remedy of mandamus.
    The relator in his petition invoked, and the circuit court in its decree granted, a double relief:
    (a) The city was commanded to issue and sell its bonds for the payment of its part of the cost of the improvement, and to issue and sell its bonds in anticipation of the collection of the assessments that were to be levied upon the abutting property.
    (b) The city was directed to hand over to the relator, the contractor, the proceeds of these bonds to the full satisfaction of his claim.
    Let us go back once again to fundamental principles. Sections 2 and 4, art. 4, of the constitution of Ohio; see. 5, art. 1, the Bill of Bights of Ohio; sec. 6744, Bev. Stat.; sec. 6741, Bev. Stat.
    . What fact is there in the case at bar to relieve the relator from the obligation of the foregoing provisions of the constitution and of the foregoing provisions of the Bevised Statutes?
    This act is based upon contract merely. State ex rel. v. Turnpike Road Co., 16 Ohio St., 308.
    Will it be contended, will this court patiently listen to the argument, that this contractor could not have brought an action in the court of common pleas against the city of Mt. Vernon asking judgment for the amount of money which he claims is due him? And if that be possible, why should he be permitted to resort to mandamus ?
    The learned judges of the circuit court appear to have wholly misinterpreted the extraordinary remedy of mandamus. Their judgment seems to have been based upon the case of State ex rel. v. Crites, Auditor, 48 Ohio St., 142. That case will be remembered as the one wherein this court made the remedy of mandamus somewhat flexible and held that the relator could not be denied relief merely because he did not show himself entitled to all of the relief which he had claimed in the alternative writ. In other words, Judge Bradbury in that case held that it is permissible to carry into the application of this remedy some of the flexibility which attaches in general to our code of civil procedure. But nowhere does the court in the syllabus or the learned judge in the opinion intimate that mandamus should be other than mandamus, or that it is possible to confuse that remedy which the general relief that a court may grant in a suit in equity.

      But the learned judges of the circuit court seem to have taken the language of this State ex rel. v. Crites, Auditor, supra, as their warrant for assuming, if in a mandamus case it should he found that the relator is right and the respondent is wrong, the court should award some relief even though the relief awarded him he equitable rather than that which attaches to the remedy of mandamus.
    ' Fortunately for us it is sufficient to refer to the case of Fraternal Mystic Circle v. State ex rel. Fritter, 61 Ohio St., 628.
    In the opinion in the latter case, Judge Shauck in the most masterly and incisive way sets out the reasons why this court cannot tolerate the enlargement of its jurisdiction, and why consequently the remedy of mandamus must be forever kept separate from actions at law or suits in equity. That opinion is our defense here, and must remain the defense of every one who insists upon the protection of the constitution, the right of trial by jury and the illegality of an attempt to foreclose his rights arising out of a simple contract by invoking the alternative writ.

      Messrs. Waight & Moore and Mr. J. C. Taiman, attorneys for defendant in error.
    It is not necessary to argue, or inquire as to the constitutionality of this actit may be obnoxious to the late rulings of this court upon the subject of special legislation, but it by no means follows that, that is a sufficient reason for denying defendant in error pay for his work.
    It was the conclusion of the circuit court, and is the contention of the defendant in error, that plaintiffs in error represented at all times by learned counsel, are late in discovering this law to be uncon-. stitutional, that the city, after the work is completed by the contractor, in this kind of an improvement, is estopped from claiming want of authority or the unconstitutionality of the law under which they proceeded in making the improvement.
    We have no bill of exceptions embodying the evidence introduced upon the trial of this case in the circuit court, but it sufficiently appears from the admitted facts in the pleadings, and the finding of facts made by the circuit court, that this improvement was made by the city, iipon the petition of abutting property owners, and the cost of the same was to be paid by assessment upon abutting property, except at street intersections, which was to be paid by the sale of bonds, provided for in the act. The making of such improvement is not illegal per sé, or malum prohibitum, but belongs to that class of local improvements, in which, the city represents the abutting property owners, and which they have authority to make. The work having been completed according to contract, and the city failing to make the assessment upon abutting property, issue and sell the bonds,.and pay the contractor therefor, he brought this suit asking that they be compelled by mandamus to do these several things, and the answer comes back that the whole thing is illegal, the law unconstitutional; we have your work and material, but you can’t get your pay, at least not in this proceeding; to which we reply, you are late in making your claim.
    Estoppel to claim want of authority in the 'city, or that the law is unconstitutional under which they are proceeding, arises, in improvements of this character, against the abutting property owner who petitions for the improvement against the city, so far as it represents the abutting property owner, and so far as any liability incurred by the city itself, in the making of such improvement. If an abutting property owner is not estopped by reason.of any fact peculiar to his case, that cannot be taken care of in this case, but individual cases can be taken care of by resisting the assessment upon the property.
    The authority cited in plaintiffs in error’s brief— Smith’s Modern Law of Municipal Corporations, sec. 1672, cites in support of the text, Noel v. San Antonio, 33 S. W. Rep., 263. This case, and the others cited in the brief of plaintiffs in error wherein courts have refused to find municipal corporations estopped, are cases where the acts of the corporation involved were ultra vires — without the pretext of authority in the city to do the act, — very different from - the case at bar. No case has been cited, and we believe none can be found, where courts have refused to apply to municipal corporations the wholesome doctrine of equitable estoppel, estopping them from claiming a law, under which they had proceeded in making a street improvement within the scope of their general authority, unconstitutional; such work is not ultra vires, but is one of the chief purposes of a municipal corporation. The doctrine of equitable estoppel applies to municipal corporations the same. as to natural persons. Bigelow on Estoppel, 468; Smith’s Modern Law of Municipal Corporations, sec. 1670-1671; South St. Paul v. Lamprecht Bros. Co., 88 Fed. Rep., 449; Railroad Co. v. Carthage, 9 Circ. Dec., 833; Bigelow on Estoppel, 376; Herman on Estoppel, sec. 1222; Logan County v. Lincoln, 81 Ill., 156; Depot Co. v. St. Louis, 76 Mo., 393; Grant v. Davenport, 18 Ia., 180; Atlanta v. Gas Co., 71 Ga., 106; Oshkosh
      v. State, 59 Wis., 425; Railway Co. v. People, 91 Ill., 251; Tone v. Columbus, 39 Ohio St., 281; Lane v. Kennedy, 13 Ohio St., 42; Elster v. Springfield, 49 Ohio St., 82; 2 Dillon, sec. 675.
    Estoppel from claiming unconstitutionality of a law under which a municipality has made a street improvement, after the work has been completed by the contractor, has been directly held by this court, in Ohio ex rel. v. Mitchell, 31 Ohio St., 592. In that case the duty of the commissioners against whom estoppel is held, was the same as devolve upon council in the case at bar.
    The only rights of third persons that had intervened, was the right of the persons holding the obligations for the work, to their pay. To the same effect is Tone v. Columbus, 39 Ohio St., 281.
    The effort to distinguish this case from the case at bar, because estoppel was applied to an abutting property owner, has no force, if it be true that estoppel applies to municipal corporations the same as to natural persons. McCloud et al. v. City of Columbus, 54 Ohio St., 439, the court holds no grounds for equitable estoppel, not that it would not be applied in a proper case. Wellston City v. Morgan, 65 Ohio St., 219, no question of estoppel in the case.
    The Burns law, section 2702, Revised Statutes, has no application to any part of the claim in this case. It is not applicable to so much of the cost and expense of this improvement as is to be assessed on abutting property. Comstock v. Nelsonville, 61 Ohio St., 288.
    It is not applicable to that part of the expense to be paid by the city:
    First: Because section 7 of the act under which this improvement was made, exempts it from the provisions of the Burns law, and if they are estopped from claiming the law unconstitutional, they are equally estopped as to this section.
    Second: Because the city’s portion of this expense is to be paid by selling “street paving-bonds.” There is a distinction between cases where the money is to be provided in the first instance by taxation, and where it is to be provided by the sale of bonds. In the first case the Burns law applies; in the sec-. ond, it does not. This is very clearly set forth in Cincinnati v. Holmes, 56 Ohio St., 113; Elster v. Springfield, 49 Ohio St., 84.
    As to the claim that the defendant in error has an adequate remedy at law — we wish counsel would be more specific and give us a general outline of this remedy at law, to which they would not have objected with more vigor than to the present proceeding, and in which they will agree to be estopped from setting up the defense, that our remedy was by mandamus. Is this remedy at- law against the abutting property owner, or is it against the city? Is it upon the contract, or for damages for breach of contract, and what should be the form of the judgment rendered?
    It seems to us, reading the contract of the defendant in error, with the city, in connection with the law under which they were proceeding in making this improvement, that the only obligation into which the city entered, was, that upon the completion of this work by the defendant in error, and upon ascertaining the cost thereof, the city would allow the relator the contract price therefor, and would assess that portion of the same to be borne by the abutting property owners, upon the abutting property, and for that portion thereof to be paid by the city, they would issue and sell bonds, under the provision of this law, and pay the proceeds thereof to defendant in error,.for said work; thus creating a fund from a particular source, applicable to a particular purpose. Could a jury in this action at law, recommended by plaintiffs in error, render a verdict to be paid in this way, out of this special fund?
    That officers of a municipal corporation may be compelled by mandamus, to perform duties devolving upon them, such as in this case, we need not cite authorities.
    That mandamus is the proper remedy to compel the making of assessments, the issue and sale of bonds, we cite: Railway Co. v. Clinton Co., 1 Ohio St., 77; State v. Van Horne, 7 Ohio St., 327; State v. Clinton County, 6 Ohio St., 280.
    But it is claimed that having mandamused the necessary acts to place this money in the treasury,, it is then necessary to resort to an action at law to get it out.
    Judge Wright in the case of State v. Perrysburg, 27 Ohio St., 103, has made all the argument necessary as to the right of a court in proceedings in mandamus to order the application of funds derived for a certain purpose, to that purpose. To the same effect is: Cass Tp. v. Dillon, 16 Ohio St., 38; State v. Treas. Wood County, 17 Ohio, 184.
   Davis, J.

The statute under authority of which the contract in question was made, was passed in April, 1900 (94 O. L., 119). It does not differ very materially from the general provisions of .the Revised Statutes in regard to its subject-matter, except as indicated in its title, that is, it authorizes the city to pay not exceeding one-half of the costs and expenses thereof and to issue bonds for such purposes. It also provides that section 2702 of the Revised Statutes shall not apply to contracts made under the act. Power to improve the streets, to make assessments on abutting lot owners, to issue bonds in anticipation of the payment of assessments, and to pay a certain proportion of the costs and expenses of the improvement, was already invested in all the cities and villages of the state.

The classification which is applied in the act in question would have been accepted generally as constitutional, prior to the decisions of this court which led to the extraordinary session of the general assembly in October, 1902; and such view would have been justified by former utterances of this court. The act itself has not yet been specifically declared to be unconstitutional by this court, although doubtless it may be justly inferred from the decision announced in The State ex rel. Knisely v. Jones, 66 Ohio St., 453, that such a conclusion, would be reached. In that case it was held that the system of classification and reclassification into classes and grades of classes, as then in vogue, was unconstitutional because it evinced an intention of the legislature to isolate the principal cities of the state into classes each containing but one city. That was admittedly so in the case then before the court and also in State ex rel. v. Beacom, 66 Ohio St., 491. In the case first cited it was held that, “an act to confer . such power upon a single city by such classification is repugnant to section 1 of article 13 of the constitution.” The court also expressly reserved an opinion on ‘the question whether the provisions of the sixth section of article 13 is an exclusive classi.fication of municipalities into cities and villages. The classification of this act, “cities of the second class and fourth grade,” unlike the classification in most, if not all, other cases, included a considerable number of cities in different parts of the state, being cities of not more than ten thousand population and not less than five thousand. So that with the considerations already suggested, there was ground for a contention that the present act ultimately would be held to be constitutional; and this is so although we may assume, for the purposes of this case, that under the decisions to which we have referred the act would have been held by this court to have been unconstitutional.

The relator contends that whether the act be unconstitutional or not, as being special legislation, the city is estopped from setting up that defense, inasmuch as it entered into this contract immediately after the decisions of this court which have been referred to were announced, with no objection or suggestion as to its want of power to make the same, and the plaintiff entered upon the performance of his contract and completed it before the objection was made that this act was unconstitutional. It may be accepted as the law that there can be no estoppel where there is an entire absence of power; but the answer to that in this case is, that the corporation was not acting ultra vires, that is, without any power whatever under the act in question or from any other source. For, as it has already been suggested, the city had ample power to improve the streets and to pay for them under other statutes, this statute differing only in the details as to the amount that the city should pay as its portion of the costs and expenses and as to the manner in which bonds should be issued, sold, and the proceeds applied, and in the provision that section 2702 of the Revised Statutes shall not apply to contracts made under the provisions of this act. The act provides: “Section 9. All other provisions of the Revised Statutes relative to the improvement of streets and alleys, and assessments to pay the cost thereof, not inconsistent with the provisions of this act, shall remain in' full force and he followed by councils of such cities in making improvements and assessments therefor.” ‘The powers elsewhere granted to the municipality are expressly read into this act in aid of it, by this provision; and it follows that a contract made under this act must necessarily be supported by powers elsewhere granted to the municipality. Hence it cannot be true in this instance that, conceding the unconstitutionálity of the act there was a total want of power in the city to make the contract. It is precisely such a case as that in which it often has been held that a municipal corporation may be estopped, because the existence of an apparent corporate power to contract upon the subject-matter and the silence of the' municipality in relation to matters of less obvious importance, may entrap an innocent party into disastrous consequences.

While it is generally true that unconstitutional statutes aré nullities from the beginning and that everything done under them is absolutely void, yet it is not universally so. It was said by the court in Findlay v. Pendleton, 62 Ohio St., 88-89; “Liabilities are occasionally enforced against parties growing'out of proceedings under an unconstitutional act, as in Tone v. Columbus, 39 Ohio St., 281, and Mott v. Hubbard, 59 Ohio St., 199, but such enforcement is not by virtue' of the unconstitutional'act, but by virtue of the acts of the parties whereby they have become estopped' from contesting the liability against them.” In State ex ret. v. Mitchell, 31 Ohio St., 592, it was held that an act to provide for the improvement of streets and avenues in certain cities of the second class .was unconstitutional, and that “notwithstanding the unconstitutionality .of the act, where the abutting lot owners have caused a street to be improved under the act, and bonds of the city to be negotiated to pay for the improvement, all who have participated in causing the improvement to be made, are estopped from denying the validity of an assessment made in accordance with the act, to pay such bonds.” And in the opinion it was said: The principles of estoppel apply where the proceedings are questioned on the ground of the unconstitutionality of the statute under which they are had, as well as where they are sought to be impeached on other grounds. Ferguson v. Landran, 1 Bush, 548 ; Ferguson v. Landran, 5 Bush, 230. Hence, notwithstanding the unconstitutionality of the act, the rights of third parties have so intervened that it is the duty- of. the commissioners to complete the apportionment of the assessment in accordance with the terms of the act.” In Tone v. Columbus, 39 Ohio St., 281, it was determined by this court that: ‘ ‘ The principles of estoppel apply as well where proceedings of a .corporation are questioned on the ground of the unconstitutionality of the statute under which they are had, as where they are attacked upon other grounds, unless such proceedings, or what is sought to be. accomplished by them, are per se illegal or malum prohibitum.• Want of power in the corporation may be waived, or an estoppel may arise from failure to assert it at the proper time.”. It is replied to this argument that the cases now- cited are cases in which the principle of estoppel was held to apply as against private individuals only, and that it was not determined in any of these cases that estoppel will run against a municipal corporation where the statute under which it assumed to act is unconstitutional. But no good reason appears why the doctrine of estoppel should not he applied as against a municipal corporation as well as a private individual where the power to act does not entirely depend upon the unconstitutional act, and this seems to he the purport of the authorities. 1 Dillon Munic. Corp. (4 ed.), sec. 457; 2 Id., sec. 935; 1 Smith Munic. Corp., secs. 227, 229, 233; 2 Herman on Estoppels, sec. 1223.

Now what are the facts in the present case which raise the question of estoppel? Sometime in the spring of 1902, the precise date not appearing in the record, a majority of the abutting lot owners petitioned the council of the city of Mt.- Yernon to pave Gambier street and Gambier avenue between Main street and Eogers street. Due notice was given of the filing of this petition, and the council thereafter determined that a majority of the owners of the real estate abutting on the improvement had signed the petition; that the material petitioned for by them was proper material to be used in the improvement; that it was necessary to improve the street and avenue as asked for in the petition; and thereupon the council determined by resolution that it was necessary to improve the said street and avenue by grading and paving the same, and assess the cost thereof, except at the intersection of the streets thereon, back upon the abutting property, and to issue bonds of said city according to law for the payment of the cost and expense of making said improvement. Thereafter the city caused its proper officers to prepare plans and specifications for said improvement, and the city advertised for bids for furnishing the material and doing the work of making said improvement according to said plans and specifications, and the relator bid on the work and was the lowest bidder therefor, and was thereby entitled by law to the contract for the performance of that work.

All of this took place prior to the decision of The State ex rel. Knisely v. Jones, 66 Ohio St., 453. The relator’s proposal was filed with the city on the sixteenth day of June, ten days before the announcement of that decision, June 26, 1902, and, for aught that appears, in perfect good faith and reliance, and certainly with good reason to rely, upon the constitutional validity of the statute under which these proceedings were had. Twelve days after the announcement of that decision, the city authorities accepted said proposal and entered into the written contract in question in this case, without having suggested any objection upon the ground of the unconstitutionality of the act; nor was any such objection made until about the thirteenth of November, 1902.

Indeed the presumption is just as strong that the city, by its officers, knew what had been decided in State ex rel. v. Jones and State ex rel. v. Beacom, and what would be decided as to this act, if the case ever should arise, as the relator; and if with that knowledge the city accepted the relator’s bid, made previous to those decisions and in reliance upon a previous line of decisions, and upon that bid entered into a contract with him, it indicates, at the least, a willingness that the relator should be misled to his irreparable injury and to the advantage of the city many thousands of dollars. These facts, and all the considerations which we have adverted to, would seem to make it in the highest degree inequitable-to allow the city authorities, after they had obtained the benefits of this contract, to make the claim of their utter want of power to enter into it or to perform it.

But another contention is made in the case, and that is, that section 2702 of the Revised Statutes, familiarly known as “the Burns law,” has not been complied with. If we are right in our view that the plaintiffs in error are estopped from alleging the unconstitutionality of the act under which they proceeded, then there is nothing in the contention upon this point; for the act specifically provides, in the seventh section thereof, that “the provisions of section 2702 shall not apply to contracts made under the provisions of this act.” This provision may be read as an exception to section 2702. Cincinnati v. Holmes, 56 Ohio St., 104; Comstock v. Nelsonville, 61 Ohio St., 288, 297.

But we think that the relator is at least premature in his application for relief by proceedings in mandamus. A distinct issue of fact is made in the record as to the performance of the contract by the relator, according to the plans and specifications. It is true that the circuit court makes a finding that the contract was “substantially performed,” but it also finds that there were certain defects in material and workmanship existing in the work at the time that it was examined by the city civil engineer and paving committee. In other words the relator has not shown a clear legal right to recover under his contract. This controversy between the parties cannot be determined upon the petition for mandamus. Contractual rights can only be settled in an action at law. "We therefore for that reason alone reverse the case and remand the same to the court of common pleas for further proceedings.

Judgment accordingly.

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

Shauck, J., concurs in the third proposition of the syllabus and in the judgment.


source: Caselaw Access Project

author: Spear, C. J.

license: Public Domain

text:
    Detroit Southern Railroad Co. v. Commissioners of Lawrence County et al.

      Fees and mileage of jurors — Adjudged against a corporation— How taxed and paid — Section 6451, Bevised Statutes — Said statute a valid exercise of legislative power — Interpretation of law.

    1. The provision that “the whole costs so taxed shall be adjudged against and paid by the corporation,” found in the section of the Revised Statutes (6451), which directs how costs shall.be taxed and paid in appropriation cases, requires that the fees and mileage of jurors shall be so taxed and paid.
    2. Said provision is a valid exercise of legislative power.
    (No. 8751
    Decided January 31, 1905.)
    Error to the Circuit Court of Lawrence county.
    . The facts are sufficiently stated in the opinion.

      Mr. Oscar W. Newman and Messrs. J. R. Moore and G. Bambach, attorneys for plaintiff in error, cited and commented upon the following authorities:

      Hill v. Durr, 47 O. L. B., 440; McDonald v. Page, Wright, 121; Gallia County v. Meigs County, 7 Circ. Dec., 351; 14 C. C. R., 26, and cases cited; sec. 13, Municipal Code (96 O. L., extra session), 27; Coal

      Co. v. Rosser, 53 Ohio St., 12; Williams v. Donough, 65 Ohio St., 499 ; Mykrantz v. Building Assn., 10 Circ. Dec., 250; 19. C. C. R., 51; State v. Chase, 5 Ohio St., 528; Cincinnati v. Connor, 55 Ohio St., 82; Bobilya v. Priddy, 68 Ohio St., 373; State v. Ferris, 53 Ohio St., 338; State v. Railroad Co., 40 Ohio St., 504; State v. Railroad Co., 50 Ohio St., 251; Snell v. Street Railway Co., 60 Ohio St., 256; sees. 5182, 6405, 6411, 6421, 6440, 6451, 6452, 6564, 7264, Rev. Stat.

      Mr. E. E. Corn and Messrs. H. E. Parker and Eli B. Parker, attorneys for defendants in error, cited and commented upon the following authorities:

      Farrier v. Cairns, 5 Ohio, 45; Hill v. Durr, 47 O. L. B., 440; Traction Co. v. Felix, 25 O. C. C., 393; 1 Swan & Critchfield, Jury Law, sec. 47, XVII; 1 Swan & Critchfield, 640, sec. XV; Atkinson et al. v. Railroad Co., 15 Ohio St., 21; Railroad Co. v. Sullivant et al., 5 Ohio St., 276; Constitution, sec. 5, art. 13; Snell v. Street Railway Co., 60 Ohio St., 256; secs. 1330, 5182, 6451, 6564, Rev. Stat.
   Spear, C. J.

The action below had its origin in' the probate court of Lawrence county, the case being a proceeding in that court to appropriate lands for' railroad purposes, the plaintiff in that action and here being a steam railroad corporation, organized under the laws of Ohio.

But one question is presented by the record, and' that is whether jury fees in such cases should be paid by the corporation or out of the county treasury.

It is conceded that the determination of the ques- ° tion depends upon the proper construction of our-statutes relating to the'taxation of costs. General provision for costs in the common pleas court is made by section 5182, Revised Statutes, which is:

“Sec. 5182. [Compensation of Jurors.] Each grand and petit juror drawn from the jury box pur: suant to law, and each juror selected by the court, pursuant to section five thousand' one hundred and seventy-three of this chapter, and each talesman shall be allowed two dollars per day, for each day he serves, and if not a talesman, five cents per mile from his place of residence to the county seat, and such compensation shall be certified by the clerk of the court, and paid by the county treasury on the warrant of the county auditor.”

Section 6411, Revised Statutes, which relates to proceedings in the probate court is to the effect that the provisions of law governing civil proceedings in the common pleas shall, so far as applicable, govern like proceedings in the probate court, when there is-no provision on the subject in this title, Title two. So that, if no other provision of statute were found, the above would clearly indicate a legislative purpose to require the payment of jury fees from the county treasury. But, under the 'same title (two) is section 6451, which is:

“Sec. 6451. The jurors summoned, and attending or serving, in accordance with the provisions of this chapter, shall each receive the same fees per day as are provided by law for jurors in the court of common pleas, and also five cents per mile for each mile of the distance they are compelled to travel in the discharge of their duties; the witnesses shall be allowed the same fees and mileage as are allowed for attendance at the court of common pleas; the sheriff shall be entitled to such fees as he is allowed by law for similar services in other cases, but he shall not be allowed anything in the way of poundage, except on money made on execution; the clerk shall he entitled to a fee of one dollar and fifty cents for drawing, and certifying to the probate judge, the list of jurors; the probate judge shall be allowed to enter a charge of five dollars in the cost bill for each day occupied in the trial of a cause, in addition to his other fees, provided by law; and the whole costs so taxed shall be adjudged against and paid by the corporation,, except as provided in the next section. ’ ’

It results, therefore, that the determination of the question depends upon the proper construction of this special provision, the conceded rule being that-a special statutory provision upon a particular subject supersedes and takes the place of a more general provision found elsewhere in the statute. It all depends upon the meaning of the phrase “the whole costs so taxed.”

The contention of plaintiff in error is that section 5182, supra, is applicable, so far as jury fees are concerned, and that, therefore, the costs in appropriation proceedings to be taxed against the corporation, as provided in section 6451 do not include jury fees. This because the universal rule in civil and criminal cases in the common pleas is that the fees of the jurors are due so soon as the service is rendered and the compensation is then certified by the clerk and paid by the county treasurer, while the statute respecting costs in appropriation cases gives to the corporation some time for their payment, about-seventy days.

This argument might have weight if there was real ambiguity in the language used. We think there is none. No distinction is drawn by the language of the act between items of one kind and those ■of another. No reason is suggested, probably because none exists, why the fees of jurors may not be ■denominated costs as well as the fee of the probate judge, or indeed' any of the other items covered by the section. We are of opinion that the plain import ■of the words used points to the unmistakable conclusion that the fees of jurors and mileage are to be taxed to the corporation. This ■ conclusion is strengthened when we consider the nature ■ of the proceeding and the parties to it. By the law the corporation is authorized to invoké the state’s power ■of eminent domain. • It may seize upon and appropriate to its own use, for its own profit and emolument, the land of another, whether he will or no. Whatever a jury concludes that his land is worth he must take, no matter what his own judgment as to value may be or his desire to remain its owner, and if he claim damage to adjoining lands the jury is the final arbiter between him and the corporation as to the amount of such damage. All such considerations go for nothing in the face of the right to exercise the extraordinary power bestowed upon the corporation. Surely it is most reasonable that under such circumstances the entire outlay necessary to bring about such result, call such outlay costs or what you will, should be paid by the party upon whom such extraordinary privileges are bestowed. Nor does the provision impose upon suitors similarly-situated different-burdens. This suggestion also, as we think, answers the further objection that the statute, if given the construction given by the court below, imposes- a burden upon certain corporations from which others, viz.: municipal- corporations, are exempt. This objection ignores the difference as to appropriation of land between a private' railroad corporation and a public municipal corporation. One appropriates for a private purpose; tbe other for purposes affecting tbe public. We think the objection not well founded.

This case is reported not because it is thought by this court that the question is either new or difficult, but because the point has been decided differently in different jurisdictions..

Judgment affirmed.

Davis, Shauck, Price, Crew and Summers, JJ., ■concur.


text:
    The Pioneer Trust Co. v. Stich et al.

      .Assessments upon the trafficking business in intoxicating liquors —Become a lien upon the property on which traffic is conducted — Assessment lien is superior to prior mortgage, when —Priority of such lien not affected by fact that sale of liquor was not known, when — Liquor laws — Laws of taxation — Priority of liens.

    1. By force of our tax laws, tbe assessments upon the business of. trafficking in intoxicating liquors which it is the duty of the county auditor to place upon the tax duplicate, as well those for previous years which may have been omitted as those for the current year, become a lien upon the property in and on which such traffic has been conducted, superior to that of a mortgage given and duly entered of record prior to the entry of such tax on the duplicate and prior to the beginning of such traffic on the premises.
    :2. Such priority of lien is not affected by the fact that at the date of such mortgage no sale of liquor was ever known to have taken place on the premises; that the premises were not adapted to the traffic; that the mortgagee had no knowledge at any time of any sale of liquor thereon, or of any intention to sell on the part of any one, and that he loaned his money in good faith and had no reason to suspect or fear that any sales of liquor would ever he made on the-mortgaged premises.
    (No. 8789
    Decided January 31, 1905.)
    Error to the Circuit Court of Geauga county.

      Mr. Elbert F. Blakeley and Mr. F. J. Jerome, for plaintiff in error.

      Mr. Herbert O. Bostwick, for Austin, treasurer, defendant in error.
   Spear, C. J.

The controversy relates to the priority of liens upon certain lands in Geauga county, and, as presented to this court, involves only the contending claims of the plaintiff in error, The Pioneer Trust Company, and the defendant in error, Dwight A. Austin, county treasurer. The Company rests its claim upon a mortgage by the owner of the land, to it, dated May 8, 1900, and entered of record May 17,1900, given to secure a note of that date for $1,000; the Treasurer bases his claim upon a Dow tax assessment covering the years 1900, 1901,. and 1902, though not entered on the duplicate until June 25, 1902. The Company began its action in foreclosure July 9, 1902, in the common pleas, the Treasurer coming in by answer and cross-petition January 9, 1903. After trial in the common pleas the cause was appealed by the Treasurer to the cir-> cuit court. There a motion to dismiss the appeal was interposed, which was overruled. On trial the court found that the lien of the state for the Dow law tax was superior to that of the plaintiff on its mortgage, and rendered judgment accordingly; also ordering a sale of the premises. No controversy exists as to the amount due on any claim; the only contest being as to priority of liens. Amórig other facts specially found by the circuit court, it was found that at the time of the execution of the mortgage the premises were not and had never been within or near any village or city, and had never been used for the sale of liquor; that September 30, 1900, an election was held in the township where the land is located by which the business of trafficking in intoxicating liquors therein was made unlawful, which regulation still continues; that the tax was entered on the duplicate by the auditor upon information that liquor had been clandestinely sold upon the premises by the then owner, the assessment being for all the period beginning June 21, 1900, up to and including May 20, 1903, which was found to amount to $718.43; that the plaintiff had no knowledge of any sale of liquor on the premises at any time; nor were the premises adapted to such sale; nor was there anything at the time the mortgage was givéri about the premises from which any one could or should have taken notice of any probability of any liquor being sold thereon.

Two questions are presented. One, did the circuit court err in overruling the motion to dismiss the appeal; and two, was the lien of the Dow law tax assessment superior to that of the mortgage?

It is contended by plaintiff in error that the motion to dismiss should have been sustained because there was no legal notice of intention to appeal; no notice of appeal given any time; no undertaking in appeal given at all, and lastly, that the cause itself was not an appealable cause.

The notice was in this form, viz.: “Notice of Intention to Appeal (Filed Jan. 16,1903). Now comes the defendant, Dwight A. Austin, Treasurer, and gives notice of Ms intention to appeal tMs case to the circuit court. H. O. Bostwick, Attorney for Defendant, Dwight'A. Austin, Treasurer.”

We think the objection is answered by Kenton v. Board of Education, 70 Ohio St., 172. The form of notice was sufficient.

As to the time within which the notice should be given the case was controlled by section 5227, Revised Statutes, as amended March 25, 1902. That section provides that the written notice shall be filed within three days after judgment is entered on his docket by the trial judge. It is sufficient to say that there is nothing in the printed record to show that the notice was not filed within the time above prescribed.

Regarding the failure to give bond it is enough to call attention to section 5228, Revised Statutes, by which it is distinctly provided that a county treasurer, when a party in his official capacity, is exempt from the general requirement of giving bond when he desires to appeal.

The last objection is, we think, also without substance. There being no question as to the several amounts due, but the only question in dispute being one respecting priority of liens, the cause was appealable. Fleming v. Kerkendall, 31 Ohio St., 568; Alsdorf v. Reed, 45 Ohio St., 653.

There remains the serious question as to the priority of the liquor tax as a lien to the lien of the plaintiff’s mortgage. It is not an entirely new question in this court, although there is no fully imported case upon the subject. People’s Building & Loan Co. v. Hanson, 63 Ohio St., 590, error to the circuit court of Ashtabula county, wherein the judgments of the courts below were affirmed for reasons given by the judge who tried the case in the common pleas,. 5 N. P., 162, governs the general question. ■ The judgment rendered was that the tax had priority of lien over a previously recorded mortgage, and the reasoning of the learned judge of the common pleas having been approved by this court as supporting the judgment, we content ourselves with reproducing the substance of the opinion upon the point involved. The .contention in that case in favor of the mortgage-lien was that the tax lien could not extend back of the fourth day of May, 1896, when it first attached as a lien and therefore was subject to the prior mortgage lien of the plaintiff. To this the opinion responds that the question whether a mortgage might be made under such circumstances that it would beheld in equity to be superior to the subsequent lien for a Dow tax is argued. If. such a defense could, under any circumstances, be maintained in equity,, the burden would be upon the party claiming it to plead and prove the facts relied upon to sustain it. But that question does not arise in this case. The opinion then proceeds to show that the assessment, on the traffic of intoxicating liquors provided for by the Dow law, is to be collected as a tax, and cites-among others the case of Adler v. Whitbeck, 44 Ohio St., 539, by which decision it is clearly held that the assessment is a tax and that it is within the power of the general assembly to impose it and to provide, as the law does provide, for its collection by the treasurer as other taxes are collected. The laws in force at the time and place where a contract is made, and where it is to be performed, which in their ■nature are applicable, enter into and become a part •of the contract, and the contract, as well as subsequent legislation, is to be construed, with respect to-its efficacy as well as its meaning in the light of all •such statutes as are applicable. Sections 2838, 2853, 2854, 1104, 2285, 6044, and 6090, Revised Statutes, are each applicable and were in force at the time the Dow law (now sections 4364-9 and following) was ■enacted, and when each and all of the mortgages mentioned were executed and became liens. The Dow law, therefore, is to be construed with these sections, and the plaintiff’s rights as to lien under its mortgage measured by them. By these sections it is enacted that taxes and assessments and the liens for them, are preferred over liens securing the claims of general creditors; that special assessments shall be payable by the owners of the property assessed by the time stipulated in the ordinance, and shall be a lien from the date of the assessment upon the lands assessed, and such assessments are given precedence over prior liens by mortgage for purchase money. Brewing Co. v. Westmeier, 4 O. C. C., 296; Clifton v. The City, 3 L. B., 272. It is further enacted that the lien of the state for taxes levied for all purposes in each year shall attach to all real property subject to such taxes, and shall continue until such taxes, with any penalty which shall accrue thereon, shall be paid; that any lien-holder may pay the taxes, so far as the same are a lien upon the mortgaged premises and hold the lien therefor, preferred to all other liens; that in all judicial sales the court shall order the taxes and penalties, and interest thereon, to be discharged out of the proceeds of said sale; that on failure of the treasurer to make the amount due and unpaid thereon by levy, or any part thereof, the auditor shall place the amount due and unpaid upon the tax duplicate against the real estate in which the traffic is carried on, and the amount shall be collected as ■other taxes and assessments on said premises; that if the tax is not paid when due the treasurer is directed to proceed under section 1104 to enforce the lien therefor upon the real estate, and section 1104 provides that the treasurer may enforce the lien for the tax or assessment by civil action in his own name as treasurer for the sale of the premises in the court of common pleas without regard to the amount ■claimed in the same way mortgage liens aré enforced. These provisions of the statute, therefore, applied to and controlled the case at its inception. The Dow tax for 1896 had attached and was a subsisting lien upon the premises at and before this action was commenced. The treasurer was a necessary party to the action, and has filed his cross-petition in full compliance with section 1104, thé section which provides that the court shall order a sale of the premises, and that the tax, penalties and interest thereon, shall be first paid out of the proceeds of the sale. And so we find that by the sections cited the state is not only given a lien for all unpaid taxes, but that such lien is given precedence over all others, and the court is thus required to order that the premises be sold and to further order that the proceeds of the sale be first applied to the payment of the lien for taxes; thereby necessarily giving a lien for any tax precedence over all other liens, save taxes, whether prior or subsequent thereto in date.

This court was satisfied with the conclusions reached by the learned trial judge and the reasons supporting them when the case was here for review and remains satisfied, so that, unless there be some distinction between that case and the one at bar requiring a different conclusion, we decide our present case by following the other.

Coming now to the case in hand, counsel insist that since each case, must be determined upon its own particular facts, and the facts in the case at bar being essentially different from those in the case affirmed by this court in 63 Ohio St., 590, a different judgment is required in this ease. They cite Markle v. Newton, 64 Ohio St., 493, and emphasize the observation of Williams, J., at pages 501 and 502 of that volume. The learned judge, commenting upon an argument of plaintiff founded. upon supposed inconveniences and hardships which would attend the enforcing of the lien against one who has purchased property in good faith in ignorance of a traffic in liquor secretly carried on therein, makes the observation that if the commencement of the lien as against third parties dealing .with the property, be limited to the year in which the tax is entered upon the duplicate, the apprehended consequences could not result, as the duplicate would have the effect of notice, and adds the somewhat obvious comment that what the rights of a purchaser may be, against the state, must depend upon the facts of his case. However, as the court then had no such case before it he forbore discussion of it. But the question before the court was as to the power of the auditor to enter upon the duplicate taxes on the business omitted in previous years, and upon this question the holding is, as expressed in the syllabus, that such taxes omitted may be entered on the duplicate of the current year, and collected as other taxes. The syllabus controls even though the expression of the judge should be thought to indicate a state of mind favorable to tbe contention of counsel upon a > question not before tbe court. We fail to see how tbe ease cited aids tbe contention of counsel in this case.

Counsel insist that tbe case at bar is further distinguished from that of tbe Association v. Hanson, supra, by the fact that in this case tbe circumstances as found by tbe circuit' court show tbe presence' of tbe precise equitable considerations foreshadowed by tbe trial judge when be intimated that there might be equitable considerations which would make inapplicable tbe severe provisions of tbe statute. • Those considerations are found, they argue, in tbe facts that, at tbe time of tbe giving of tbe mortgage, there was no reason whatever to suspect that any violation of tbe liquor law would occur on the premises, and that the plaintiff bad no cause to suspect tbe owner would in any manner violate tbe law, but was justified in tbe belief that be wbuld in all respects observe tbe law, and so believing, in good faith invested its money, thus presenting an equitable consideration entitling tbe plaintiff to immunity from the consequences visited upon tbe mortgagee in tbe other case. And yet this proposition meets with an answer which has a reasonably satisfactory basis upon tbe terms of tbe statute. It will be recalled that it is provided, section 4364-9, that there shall be laid upon the business of trafficking in intoxicating liquors, to be assessed yearly, tbe sum of $350.00,. and by section 4364-10, that tbe assessment, together-with any increase thereof as penalty thereon, shall attach and operate as a lien upon tbe real property on and in which such business is conducted, as of the-fourth Monday in May, each year. In tbe light of' tbe bolding in Markle v. Newton, supra, and when tbe general scope and purpose of our tax laws is considered, it can hardly be seriously insisted that because the party has escaped assessment in any year, although the traffic has been carried on, it is beyond the power of the auditor to enter the assessment for previous years. The burden on the business is laid .“yearly” and the burden is not lifted simply because the entry hasn’t been made in the particular year by the auditor. In other words, it is the duty of the auditor to enter the assessment for "such years as the traffic has been continued so soon as he discovers the fact of such traffic, as is in effect held in Markle v. Newton, supra. When to this duty is added the further requirement that, in the collection by suit by the treasurer against the land the premises shall be ordered sold and from the proceeds the lien for taxes first paid, it would seem to follow that there is no room for equitable considerations, and that however unfortunate the result may prove to the mortgagee, and however innocent and free from fault such party in the given case may be, nevertheless, the power existing, it is a question for the law-making body alone as to how far the exercise of the power shall be carried. In other words, if the assessment upon the traffic is a tax, as held in all the cases, and if omitted taxes may be entered upon the duplicate and collected as other taxes, as held in Markle v. Newton, supra, and if, upon a sale of the property it is the duty of the court to order that the proceeds of the sale be first applied to the payment of the lien for taxes, as held in People’s Building & Loan Association v. Hanson, supra, it is difficult to see how it is possible for a court to give a mortgagee relief even though he has acted in good faith and his lien antedates the tax. The case is one of extreme hardship, and yet as the law stands it is to be enforced. Whether an amendment might be engrafted upon one of the sections which would relieve bona fide mortgagees and purchasers without leaving a door open for the escape of the unscrupulous, may well receive the serious consideration of the general assembly. It is possible that the framers of our tax laws were influenced by the consideration that if the state should be postponed in its lien for taxes to mortgagees, even though prior as to entry, it would be possible for the owner to so burden his property with mortgages as to make the collection of taxes an impossibility.' But whether this or a better reason operated to bring about the legislation we need not inquire; suffice it that thus saith the law.

Our conclusion is that the circuit court did not err in giving preference to the state’s claim for taxes over that of the plaintiff’s prior mortgage. Its judgment will therefore be

. Affirmed.

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


text:
    No. 8433.
    Clewell v. The Toledo Metal Sign & Advertising Co.
    (Decided October 4, 1904.)
    Error to Circuit Court of Stark county.

      Mr. G. G. Bow and Mr. A. A. Tháyér, for plaintiff in error.

      Messrs. McCarty é Pontius, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Summers, JJ., concur.


text:
    No. 8437.
    Davis v. Ewing.
    (Decided October 4, 1904.)
    Error to Circuit Court of Portage county.

      Mr. I. T. Siddal, for plaintiff in error.

      Messrs. Stuart S Stuart, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Crew and Summers, JJ., concur.


text:
    No. 8438.
    Pump v. The Commissioners of Lucas County et al.
    (Decided October 4, 1904.)
    Error to Circuit Court of Lucas county.

      Mr. B. A. Hayes, for plaintiff in error.

      Messrs. Sumner & Tucker; Mr. W. G. TJlery and’ Mr. J. S. Martin, for defendants in error.
   Judgment reversed on authority of Pump v. Commissioners of Lucas County, 69 Ohio St., 448.

Davis, Shauck, Crew and Summers, JJ., concur.


text:
    No. 8439.
    Klein et al. v. The Cincinnati, Hamilton & Dayton Railway Company.
    (Decided October 4, 1904.)
    Error to Circuit Court of Greene county.

      Mr. J. E. Hawes, for plaintiffs in error.

      Mr. B. D. Marshall, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Crew, JJ., concur.

Summers, J., having sat in the ease in the circuit court did not participate in this decision.


text:
    No. 8443.
    Smith v. The State of Ohio.
    (Decided October 4, 1904.)
    Error to Circuit Court of Knox county.
    Messrs. J. D. and I). F. Ewing and Mr. W. M.. Koons, for plaintiff in error.

      Mr. Wade Ellis, attorney general, for defendant in error.
   Judgment affirmed.

Davis, Shauck: and Crew, JJ., concur.


text:
    No. 8444.
    Smith v. The State of Ohio.
    (Decided October 4, 1904.)
    Error to Circuit Court of Knox county. ’

      Messrs. J. D. and D. F. Ewing and Mr. W. M„ Koons, for plaintiff in error.

      Mr. Wade Ellis, attorney general, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Crew, JJ., concur.


text:
    No. 8696.
    The Toledo Railway & Light Co. v. Hawkins, Admx.
    (Decided October 4, 1904.)
    Error to Circuit Court of Lucas county.

      ■ Messrs. Smith & Baker, for plaintiff in error.

      Mr. W. W. Stewart; Mr. E. L. Twing and Mr. M. B. Earnhart, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Crew and Summers, JJ., concur.


text:
    No. 8741.
    The Lake Shore & Michigan Southern Railway Co. v. Schuck.
    (Decided October 4, 1904.)
    Error to Circuit Court of Erie county.

      Mr. G. G. Greene; Mr. F. J. Jerome and Mr. G. E. Reiter, for plaintiff in error.

      Messrs. King & Guerin, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Crew and Summers, JJ., concur.


text:
    No. 8757.
    The Lake Shore & Michigan Southern Railway Co. v. Austin.
    (Decided October 4, 1904.)
    Error to Circuit Court of Mahoning county.

      Messrs. Arrel, McVey é Tayler, for plaintiff in error.

      Mr. A. W. Jones and Messrs. W. S. Anderson & Son, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Crew and Summers, JJ., concur.


text:
    No. 8809.
    The Baltimore & Ohio Railroad Co. v. Johnson et. al.
    (Decided October 4, 1904.)
    Error to Circuit Court of Knox county.

      Mr. F. A. Durban and Messrs. WaigM S Moore, for plaintiff in error.

      Mr. F. V. Owen and Messrs. Bowman & Bowman, for defendants in error.
   Judgment reversed and judgment for plaintiff in error. Error in overruling motion to' direct a verdict.

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


text:
    No. 8870.
    The Grafton Supply Co. v. Gavin.
    (Decided October 4, 1904.)
    Error to Circuit Court of Columbiana county.

      Messrs. Billingsley, Clark S DeFord, for plaintiff in error.

      Messrs. Murphy & Moore, for defendant in error.
   • Judgment reversed and'judgment of common pleas affirmed.

Davis, Shauck, Price,' Crew and Summers, J.T.. concur.


text:
    No. 8911.
    Wolf v. The Cleveland City Railway Co.
    (Decided October 4, 1904.)
    Error to Circuit Court of Cuyahoga county.

      Mr. Merman Preusser, for plaintiff in error.

      Messrs. Squire, Sanders & Dempsey, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price and Summers, JJ., concur.

Crew, J., dissents.


text:
    No. 8912.
    Wolf v. The City of Cleveland.
    (Decided October 4, 1904.)
    Error to Circuit Court of Cuyahoga county.

      Mr. Merman Preusser, for plaintiff in error.

      Mr. N. D. Baker, city solicitor; Mr. C. J. Estep;Mr. M. F. Payer; Mr. G. S. Addan and Mr. W. A, Carey, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8920.
    The State of Ohio v. The Leo Ebert Brewing Co. et al.
    (Decided October 4, 1904.)
    Error to Circuit Court of Lawrence county.

      ■. Mr. E. E. Corn, prosecuting attorney,' Lawrence ■county, for plaintiff in error.

      Mr. C. E. Belcher, for defendants in error.
   Judgment affirmed as to the Brewing Company, and reversed and judgment of the common pleas affirmed as to Otto Ebert.

Shauck, Price, Crew and Summers, JJ., concur.

Davis, J., dissents.


text:
    No. 8921.
    The State of Ohio v. The Leo Ebert Brewing Co. et al.
    (Decided October 4, 1904.)
    Error to Circuit Court of Lawrence county.

      Mr. E. E. Corn, prosecuting attorney, Lawrence county, for plaintiff in error.

      Mr. C. E. Belcher, for defendants in error.
   Judgment affirmed.

Shauck, Price, Crew and Summers, JJ., concur.

Davis, J., dissents.


text:
    No. 8962.
    The City of Columbus v. Chittenden.
    (Decided October 4, 1904.)
    Error to Circuit Court of Franklin county.

      Messrs. Butler, Marshall & Keating, for plaintiff in error.

      Messrs. Kinkead, Merwine & Schumacher, for defendant in error.
   Judgment affirmed.

Davis, Crew and Summers, JJ., concur.


text:
    No. 8450.
    The City & Suburban Telegraph Association v. Tannian.
    (Decided October 11, 1904.)
    Error to Superior Court of Cincinnati.

      Messrs. Peck, Shaffer & Peck and Messrs. Outcalt & Foraker, for plaintiff in error. ■

      Messrs. Galvin.& Bauer, for defendant in error.
   Judgment affirmed.

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

Shauck, J., dissents.


text:
    No. 8458.
    Faurot v. Norton et al.
    (Decided October 11, 1904.)
    Error to Circuit Court of Defiance county.

      Mr. JÍM. Dawson, for plaintiff in error.

      Messrs. Harris & ■Cameron, for defendants in error.
   Judgment affirmed.

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


text:
    No. 8459.
    Elliot et al. v. Williams et al.
    (Decided October 11, 1904.)
    Error to Circuit Court of Lucas county.

      Mr. H. Van Campen, Jr.; Mr. C. E. Longwell and Messrs. Paddock & Johnson, for plaintiffs in error.

      Mr. L. T. Williams, for defendants in error.
   Judgment affirmed.

Shauck, Price, Crew and Summers, JJ., concur.


text:
    No. 8460.
    Elliot et al. v. Williams et al.
    (Decided October 11, 1904.)
    Error to Circuit Court of Lucas county.

      Mr. H. Van Campen, Jr.; Mr. C. E. Longwell and Messrs. Paddock <& Johnson, for plaintiffs in error.

      Mr. L. T. Williams, for defendants in error.
   Judgment affirmed.

Shauck, Crew and Summers, JJ., concur.


text:
    No. 8466.
    The State of Ohio, Village of Kingston v. Wagner.
    (Decided October 11, 1904.)
    Error to Circuit Court of Ross county.

      Mr. John W. Goldsberry, for plaintiff in error.

      Mr. John G. EntreJcin, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Spear, C. J., Davis, Price and Summers, JJ., ■concur.


text:
    No. 8467.
    Jenner v. McCammon, Admr.
    (Decided October 11, 1904.)
    Error to Circuit Court of Crawford county.

      Mr. L. C. Feighner, for plaintiff in error.

      Messrs. Finley & Gallinger, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Crew and Summers, JJ., concur.


text:
    No. 8468.
    Gunnison v. Martin et al.
    (Decided October 11, 1904.)
    Error to Circuit Court of Hamilton county.

      Mr. Joseph Cox, Jr., for plaintiff in error.

      Mr. T. Horstman and Messrs. Giauque é McClure, for defendants in error.
   Judgment affirmed.

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


text:
    No. 8470.
    The Dime Savings & Banking Co. v. The Standard Wrapping Paper Co. et al.
    (Decided October 11, 1904.)
    Error to Circuit Court of Cuyahoga county.

      Messrs. Gilbert, Hills & Van Derveer, for plaintiff in error.

      Messrs. White-, Johnson, McCaslin & Cannon and Messrs. Kline, Carr, Tolies & Goff, for defendant in error. ,
   Judgment affirmed.

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


text:
    No. 8479.
    Russell et al. v. Clapp et al.
    (Decided October 11, 1904.)
    Error to Circuit Court of Geauga county.

      Mr. E. J. Pinney and Mr. N. H. Bostwick, for plaintiffs in error.

      Messrs. Hoyt, Marsh é Hall, for defendants in error.
   Judgment affirmed.

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


text:
    No. 8493.
    Ohio Farmers’ Insurance Co. v. Agner.
    (Decided October 11, 1904.)
    Error'to Circuit Court of Putnam county.

      Mr. Lee Elliott and Messrs. Bisser <& Smith, for plaintiff in error.

      Mr. A. A. Slaybaugh and Messrs. Bailey & Bailey, for defendant in error.
   Judgment affirmed.

Spear, C. J., Shauck, Price and Crew, J J., concur.


text:
    No. 8494.
    Pontius v. William Edwards & Co.
    (Decided October 11, 1904.)
    Error to Circuit Court of Stark county.

      Mr. H. 6. Pontius and Messrs; McCarty <& McDowell, for plaintiff in error.

      Messrs. Lynch, Day S Day, for defendant in error.
   Judgment affirmed.

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

Price, J., not sitting.


text:
    No. 8572.
    Landor v. Sillery.
    (Decided October 11, 1904.)
    Error to Circuit Court of Morgan county.

      Messrs. Daugherty é Todd, for plaintiff in error.

      Messrs. Ball, Ivers <& Russell, for defendant ini error.
   Judgment affirmed.

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


text:
    No. 8701.
    Collins, Admr. v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co.
    (Decided October 11, 1904.)
    Error to Circuit Court of Marion county.

      Mr. C. F. Garber son and Messrs. Scofield, Durfee '<£ Scofield, for plaintiff in error.

      Messrs. Mouser & Quigley and Mr. 8. O. Bayless, for defendant in error.
   Judgment affirmed.

Spear, O. J., Shauck, Crew and Summers, JJ., concur.

Davis and Price, JJ., not sitting;


text:
    No. 8768.
    The B. & O. Southwestern Railroad Co. v. Kopp.
    (Decided October 11, 1904.)
    Error to Circuit Court of Hamilton county.

      Messrs. Harmon, Colston, Goldsmith <& Hoadly, for plaintiff in error.

      Messrs. Horstman & Horstman, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8502.
    In the Matter of the Estate of Alkire, Deceased.
    (Decided October 18, 1904.)
    Error to Circuit Court of Putnam county.
    , Messrs. Handy & Unverferth, for plaintiffs in error.

      Messrs.Bailey & Bailey, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8506.
    Albright v. Weaver.
    (Decided October 18, 1904.)
    Error to Circuit Court of Darke county.

      Mr. Martin B. Trainor, for plaintiff in error.

      Messrs. Bickel & Baker, for defendant in error.
   Judgment affirmed.

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

Summers, J., not sitting.


text:
    No. 8507.
    In re the Estate of Fleming, Deceased, Fisher et al. v. Leidigh.
    (Decided October 18, 1904.)
    Error to Circuit Court of Richland county.

      Mr. W. J. Geer, for plaintiffs in error.

      Messrs. Cummings, McBride & Wolfe and Mr. J. W. Leidigh, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


text:
    No. 8510.
    Langenbach et al. v. Scott.
    (Decided October 18, 1904.)
    Error to Circuit Court of Stark county.

      Mr. C. G. Bow and Messrs. Lynch, Day & Day, for plaintiffs in error.

      Messrs. Harrison é Aston and Mr. A. A. Thayer, for defendant in .error.
   Judgment affirmed.

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


text:
    No. 8517.
    The Extension of the Lower River Road Co. v. The City of Cincinnati.
    (Decided October 18, 1904.)
    Error to Superior Court of Cincinnati.

      Messfs. Peck, Shaffer & Peck and Mr. A. A. Ferris, for plaintiff in error.

      Mr. C. J. Hunt; Mr. C. W. Scott and Mr. A, H. Morrill, for defendant in error. •
   Judgment reversed and judgment for the plaintiff in error on the conceded facts. Grounds stated in the journal entry.

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


text:
    No. 8574.
    Majewski v. The Lake Shore Electric Railway Co.
    (Decided October 18, 1904.)
    Error to Circuit Court of Lucas county. .

      Messrs'. C. K. Friedman and Messrs. Marshall & Fraser, for plaintiff in error.

      Messrs. Kinney, O’Farrell <$> Rimelspach and Messrs. Smith & Baker, for defendant in'error.
   Judgment of the circuit court reversed and that of the common pleas affirmed on the ground that the hill of exceptions was an incomplete hill, and the circuit court not having before it all of the testimony was without power to review the judgment of the common pleas on the weight of the evidenced

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


text:
    No. 8663.
    The Columbus, Hocking Valley & Toledo Railway Co. v. Betts
    (Decided October 18, 1904.)
    Error to Circuit Court of Lucas county.

      Messrs. King & Tracy and Mr. G. O. Hunter, for plaintiff in error.

      Mr. O. 8. Brumback and Mr. G. A. Thatcher, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8738.
    The State of Ohio ex rel. Attorney General v. Wyman.
    (Decided October 18, 1904.)
    Quo Warranto.

      Mr. J. M. Sheets, attorney general, and Mr. G. E. Davidson, for plaintiff in error.

      Messrs. Brookes do Thompson and Messrs. Billingsley, Clark é DeFord, for defendant in error.
   Exceptions to report of special master sustained and petition dismissed at the costs of the relator.

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


text:
    No. 8798.
    The Baltimore & Ohio Railroad Co. v. Mitchell.
    (Decided October 18, 1904.)
    Error to Circuit Court.of Guernsey county.

      Mr. F. A. Durban and Mr. F. L. Rosemond, for plaintiff in error.

      Mr. J. S. LePage and Mr. R. T. Scott, for defendant in error.
   ■ Judgment of the courts below reversed and judgment for the plaintiff in error on the special findings of the jury.

Spear, C. J., Davis, Shatjck and Crew, Jj., concur.

Price, J., dissents.


text:
    No. 8974.
    Wamsley v. The State of Ohio.
    (Decided October 18, 1904.)
    Error to Circuit Court of Adams county.

      Mr. G. W. Pettit and Mr. J. W. Tarbell, for plaintiff in error.

      Mr. C. F. McCoy, for defendant in error.
   Judgment reversed and cause remanded. Ground stated in journal entry.

Davis, Shatjck, Price and Crew, JJ., concur.


text:
    No. 8408.
    Insurance Company of North America v. Miller et al.
    (Decided October 25, 1904.)
    Error to Circuit Court of Hamilton county. ■

      Mr. J. H. Bates and Mr. H. P. Kaufman, for plaintiff in error. .

      Mr. G. B. Wilby; Messrs. Peck, Shaffer & Peck and Mr. W. B. Morroiv, for defendants in error.
   Judgment affirmed.

• Shauck, Price and Crew, J J., concur.


text:
    No. 8520.
    Griffis, Admr. v. Bear et al.
    (Decided October 25, 1904.)
    Error to Circuit Court of Preble county.

      Mr. A. B. Griffis, for plaintiff in error.

      Messrs. Bisinger & Bisinger, for defendants in error.
   Judgment affirmed.

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


text:
    No. 8521.
    Richards, Guardian, v. Shepler.
    (Decided October 25, 1904.)
    Error to Circuit Court of Lucas county.

      Mr. I. N. Huntsberger, for plaintiff in error. Mr. O. W. Nelson, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ. concur.


text:
    No. 8611.
    Schwaertzler v. The State of Ohio.
    (Decided October 25, 1904.)
    Error .to Circuit Court of Ross county.

      Mr. C. R. Doll and Mr. E. Outright, Jr., for plain tiff in error.

      Mr. Geo. Bitser; Mr. W. B. Wheeler and Mr. H. 0 Claypool, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8667.
    The Lake Shore & Michigan Southern Railway Co. v. Johnson.
    (Decided October 25, 1904.)
    Error to Circuit Court of Lucas county.

      Mr. E. D. Potter and Mr. P. E. Potter, for plaintiff in error.

      Messrs. King <& Tracy and Mr. F. II. Geer, for defendant in error.
   Judgment of the circuit court and of the common pleas reversed and judgment for plaintiff in error on special findings of the jury and {he conceded facts appearing in the record.

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


text:
    No. 8745.
    The State of Ohio ex rel. Attorney General v. Hawkins.
    (Decided October 25, 1904.)
    Quo Warranto

      Mr. W. H. Ellis and Messrs. Miller S Miller, for plaintiff in error.

      Mr. Dio Rogers and Mr. A- A. Mansfield, for defendant in error.
   Writ refused and petition dismissed.

Spear, O. J., Shauck, Price, Crew and Summers, JJ., concur.


text:
    No. 8749.
    The Wheeling & Lake Erie Railroad Co. v. Wells, Admx.
    (Decided October 25, 1904.)
    Error to Circuit Court of Lucas county.

      Messrs. Beiders & Monnette, for plaintiff in error.

      Messrs. Beard & Beard, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8755.
    The Toledo Railway & Light Co. v. Ward, Admx.
    (Decided October 25, 1904.)
    Error to Circuit Court of Lucas county.

      Messrs. Smith é Baker, for plaintiff in error. -

      Messrs. Commager & Commager and Mr. H. Scribner, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8818.
    The Lake Shore & Michigan Southern Railway Co. v. Kracht, Admx.
    (Decided October 25, 1904.)
    Error to Circuit Court of Lucas county.

      Mr. E. D. Potter and Mr. P. E. Potter, for plaintiff in error.

      Mr. E. L. Twing, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


text:
    No. 8826.
    The Columbus, London & Springfield Railway Co. v. McAllister.
    (Decided October 25, 1904.)
    Error to Circuit Court of Franklin county.

      Messrs. Merrick & Williams and Messrs. Pomerene $ Pomerene, for plaintiff in error.

      Mr. T. E. Powell, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8859.
    Linde v. Ware.
    (Decided October 25, 1904.)
    Error to Circuit Court of Hancock county.

      Mr. J. Blackford and Messrs. Axline & Betts, for plaintiff in error.

      Messrs. McConica é Dwiggins, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8895.
    The Wills Creek Coal Co. v. Norman.
    (Decided October 25, 1904.)
    Error to Circuit Court of Guernsey county.

      Mr. JR. T. Scott and Messrs. Daugherty <& Todd, for plaintiff in error.

      Mr. F. L. Rosemond, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8355.
    Ake v. Van Vleck.
    (Decided November 1, 1904.)
    Error to Circuit Court of Sandusky county.

      Mr. E. E. Gam, for plaintiff in error.

      Mr. G. W. Kinney and'Mr. J. O. Troup, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8361.
    Cratty v. Shaper et al.
    (Decided November 1, 1904.)
    Error to Circuit Court of Hancock county.

      Messrs. Moss & Kinder, for plaintiff in error. •

      Mr. T. E. McConioa and Mr. G. M. Dwiggins, for defendants in error.
   Judgment affirmed.

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


text:
    No. 8695.
    The Cleveland, Akron & Columbus Railway Co. v. Jenkins, Admx.
    (Decided November 1, 1904.)
    Error to Circuit Court of Summit county.

      Messrs. Allen, Waters S Andress, for plaintiff in error.

      Messrs. Rogers, Rowley, Bradley & Rockwell, for defendant in error.
   Judgments of the courts below reversed and judgment for plaintiff in error on special finding of jury and conceded facts appearing, of record.

Spear, O. J., Davis, Shauck and Summers, JJ., concur.


text:
    No. 8731.
    The State of Ohio ex rel. Karg v. Trustees of Crane Township.
    (Decided November 1, 1904.)
    Error to Circuit Court of Wyandot county.

      Messrs. Carey & Parker, for plaintiff in error.

      Mr. B. Meek, for defendant in error.
   Judgment affirmed.

Shauck, Price, Crew 'and Summers, JJ., concur.


text:
    No. 8743.
    The Chicago & Erie Railroad Co. v. Jacoby, Admr.
    (Decided November 1, 1904.)
    Error to Circuit Court of Marion county.

      Mr. W. O. Johnson and Messrs. J. F. McNeal é Sons, for plaintiff in error.

      Mr. J. W. Jacoby and Messrs, Scofield, Durfee S Scofield, for defendant in error. -i
   Judgment affirmed.

Shauck. Price and Summers, JJ., concur.


text:
    No. 8769.
    The Toledo Traction Co. v. Rafferty.
    (Decided November 1, 1904.)
    Error to Circuit Court of Lucas county.

      Messrs. Smith S Baker, for plaintiff in error. , •

      Mr. O. S. Brumback, for defendant in error.
   Judgment affirmed on the grounds stated in the opinion of the circuit court of Lucas county, 25 O. C. C., 411.

Spear, C- J-, Davis, Crew and Summers, JJ., concur.


text:
    No. 8813.
    The State of Ohio ex rel. Hayes v. Inman, Clerk, etc., et al.
    (Decided November 1, 1904.)
    Error to Circuit Court of Sandusky county. '

      Mr. B. A. Hayes, for plaintiff in error.''

      Messrs. Finefrock & Garver; Mr. D. B. Love; Mr. Basil Meek and Mr. E. L. Bogue, for defendants in error.
   Judgment affirmed.

S-pf.au, C. J., Price, Crew and Summers, JJ., concur.


text:
    No. 8378.
    Schmuck v. The Crume & Sefton Manufacturing Co. et al.
    (Decided November 4, 1904.)
    Error to Circuit Court of Montgomery county.

      Messrs. Young S Young, for plaintiff in error.

      Messrs. Gottschall & Limbert, for defendants in error.
   Judgment affirmed.

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

Summers, J., not sitting.


text:
    No. 8445.
    The Western Mineral Wool Co. v. The Illinois Steel Co.
    (Decided November 4, 1904.)
    Error to Circuit Court of Cuyahoga county.

      Messrs. Bemis, Zisélman & Golfee and Mr. J. J. Hogan, for plaintiff in error.

      Messrs. M. B. & H. H. Johnson and Mr. W. D. Haynie, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Summers, JJ., concur.


text:
    No. 8528.
    Lewis v. The Incorporated Village of West Union, Ohio.
    (Decided November 4, 1904.)
    Error .to Circuit Court of -Adams bounty.

      Messrs. Blair é Mahaffey, for plaintiff'in error.

      Mr. G. W. Pettit, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8529.
    Healea, Assignee, v. McCollam et al.
    (Decided November 4, 1904.)
    Error to. Circuit Court of Tuscarawas county.

      Messrs. Neely S Patrick, for plaintiff in error.

      Mr. W. B. Stevens and Mr.- D. A. Hollingsworth, for defendants in error.
   Judgment affirmed.

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


text:
    No. 8533.
    City of Cincinnati v. Directors of the University of Cincinnati.
    (Decided November 4, 1904.)
    Error to Superior Court of Cincinnati.

      Mr. C. J. Hunt, for plaintiff in error.

      Mr. M. B. May, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8535.
    The Toledo Bushing Co. et al. v. Ruedy.
    (Decided November 4, 1904.)
    Error to Circuit Court of Lucas county.

      Mr. G. P. Voorheis and Mr. J. K. Hamilton, for plaintiffs'in error. -

      Mr. G. W. Everett; Messrs, Southard é Southard and Messrs. Laser & Huston, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8969.
    Whitmore, Trustee, v. Drake et al.
    (Decided November 4, 1904.)
    Error to Circuit Court of Hamilton county.

      Mr. P. A. Reece and Mr. S. W. Bennett, for plaintiff in error.

      Messrs. Burch & Johnson and Mr. E. J. Babbitt, ■ for defendants in error.
   Judgment reversed. Grounds ‘stated in journal entry.

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


text:
    No. 8449.
    Bartlett v. Wrightson.
    (Decided November 15, 1904.)
    Error to Circuit Court of Hamilton county.

      Messrs. Bromwéll é Bruce and Mr. L. H. Mason, for plaintiff in error.

      Mr. E. 11. Williams and Mr. N. Wright, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8451.
    The Hocking Valley Railway Co. v. McCurdy.
    (Decided November 15, 1904.)
    Error to Circuit Court of Marion county.

      Mr. J. F. McNeal and Mr. C. O. Hunter, for plaintiff in error.

      Messrs. Scofield, Durfee é Scofield, for defendant in error.
   Judgment reversed and cause remanded. Grounds stated in journal entry.

Davis, Shauck, Price and Summers, JJ., concur.


text:
    No. 8541.
    Broadwell v. Thomas et al.
    (Decided November 15, 1904.)
    Error to Superior Court of Cincinnati.
    Mr. W. Worthington, for plaintiff in error.

      Mr. W. F. Chambers and Mr. 6r. W.'Harding, for defendants in error. ' >
   Judgment affirmed.

Shauck, Price and Summers, JJ., concur.


text:
    No. 8866.
    The Henry J. Speiker Co. v. Ferguson.
    (Decided November 15, 1904.)
    Error to Circuit Court of Lucas county.*

      Messrs. Doyle. £ Lewis and Mr. J. W. Schaufelberg er, for plaintiff in error.
    Mr. H. Scribner and Mr. A. H. Coldham, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8526.
    The Cincinnati Equitable Insurance Co. v. Gibson, Treas.
    (Decided November 22, 1904.)
    Error to Superior Court of Cincinnati.

      Messrs. Sayler £ Sayler and Mr. E. N. Wild, for plaintiff in error.

      Messrs. Ampt, Ireton é Collins; Mr. F. Barton and Mr. A. B. Benedict, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8555.
    Rippeth v. Rippeth et al.
    (Decided November 22, 1904.)
    Error to Circuit Court of Carroll county.

      Messrs. Fimple é Deford, for plaintiff in-error.

      Mr. D. A,. Hollingsworth; Mr. W. T. Perry and Messrs. Neely & Patrick, for defendants in error.
   Judgment affirmed. .

Davis, Shauck and Crew, JJ., concur.


text:
    No. 8558.
    Minner v. Long.
    (Decided November 22, 1904.)
    Error to Circuit Court of Muskingum county.

      Mr¿ W; H. Ball and Mr. J. T. Crew, for plaintiff in error.

      Mr. S. M. Winn and Mr. J. C. Bassett, Jr., for defendant in error.
   Judgment affirmed.

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