author: Shauck, J.

text:
    The City of Akron v. Roth. The Central National Fire Insurance Company v. J. R. Roberts & Son.

      Supreme court jurisdiction—To review judgments of cases in lower c our ts~Cases pending in the circuit courts on January I, 1913, subject to appeal, to and review by supreme court, when—All cases pending in the courts of common pleas on January 1, 1913, subject to review only by court of appeals except, when—Limitation of seventy days from date of judgments of court of appeals— For tiling of application for hearing in supreme court except, when—Court procedure—Rules for advancement from lower to upper courts.

    1. In determining the manner in which the exercise of the authority of this court to review judgments of the court of appeals in “cases of public or great general interest” under the constitutional amendments of 1912 shall be invoked conclusive effect should be given to the following provisions of the fourth article which relate especially to that subject: “In cases of public or great general interest the supreme court may, within such limitation of time as may be prescribed by law, direct any court of appeals to certify its record to the supreme court, and may review, and affirm, modify or reverse the judgment of the court of appeals;” and “All pending cases and proceedings in the circuit courts shall proceed to judgment and be determined by the respective courts of appeals, -and the supreme court, as now provided by law, and cases brought into said court of appeals after the taking effect hereof shall be subject to the provisions hereof.” In order that such effect may be given them, the provision of the final schedule that “all cases pending in the courts on the first day of January, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law” must be regarded as meaning that all cases pending in the several courts of the state shall proceed in such courts according to existing procedure.
    2. In the procedure prescribed by the provisions of the fourth article all judgments which the court of appeals may render in cases involving questions arising under the constitution of the United States or of this state, in cases of felony (on leave first obtained) and in cases which originated in the court of appeals, ■without regard to the time when the cases may be brought into that court, there may be a review by this court by proceedings in error instituted in accordance with the laws in force January 1, 1913; and the same course may be taken for the review of judgments, of the court of appeals in cases of public or great general interest, if the cases were pending in the circuit court on said first day of January.
    3. As to cases brought into the court of appeals after said first day of January, a proceeding to obtain a review by this court of a judgment of the court of appeals in a case of public or great general interest, and not within our jurisdiction for any other reason, must be instituted by an application for an order of this court directing the court of appeals to certify its. record in the case to this court, such application to be made by motion showing from the record (a) that the case is of public or great general interest, and (b) that error has probably intervened; notice of such motion to be given in accordance with the general rule.
    4. No limitation as to the time of making such application having been prescribed by law, a limitation of seventy days from the date of such judgments in cases of public or great general interest as the court of appeals may hereafter render is hereby prescribed, and in cases of that character in which the court of appeals has already rendered final judgment since said first day of January, including the cases in which the motions now under consideration are filed, applications may be made at any time before the first day of January, 1914.
    5. All proceedings in error instituted here for the review of judgments of the court of appeals in cases not within our jurisdiction, except as they may be cases of public or great general interest, and instituted without obtaining an order of this court to the court of appeals to certify its record, will be dismissed, but without prejudice to the right of the aggrieved party to apply here for such an order in accordance with propositions 3 and 4 of this syllabus. All motions to dismiss proceedings in error instituted here in accordance with the practice prescribed for proceedings in error by the law in force on the first day of January, 1913, in cases which at that date were pending in the circuit court will be overruled.
    (Nos. 14222 and 14242
    Decided October 7, 1913.
    Error to the Circuit Court of Summit county.
    Error to the Circuit Court of Portage countv.

      Facts are stated in opinion.

      Mr. Jonathan Taylor, city solicitor, for plaintiff in error, the city of Akron.

      Mr. J. A. Kohler and Mr. W. R. Talbot, for defendant in error, Roth.

      Mr. J. L. Kohl and Mr. H. R. Loomis, for plaintiff in error, insurance company.

      Mr. W. J. Beckley and Mr. R. S. Webb, for defendant in error, J. R. Roberts & Son.
   Shauck, J.

The two cases entitled, and numerous others of which they are types, are submitted on motions to dismiss the petition in error. In the case firstly entitled, the judgment of the court of appeals, whose' reversal is sought, was rendered in a case that was pending in the circuit court of Summit county on the first day of January, 1913.

In the case secondly entitled the judgment of the court of appeals, whose reversal is sought here, was rendered in a cause not pending in the circuit court at that day but taken to the court of appeals on the 18th of February, 1913.

The petitions in error in both of these cases have been filed here with copies of the record in accordance with the practice which had grown up under the provision of the constitution of. 1851 relating to the appellate jurisdiction of this court and the statutes passed pursuant thereto. The questions for determination arise out of the amendments to the constitution made in September, 1912, and the motions to dismiss are predicated upon the theory that by those amendments the cases are either excluded from our jurisdiction or are required to be brought here only by some resort to this court to invoke its authority to order the circuit court to send to us a transcript of its record.

. The questions chiefly arise out of the amendment to the fourth article of the constitution then adopted which relates to the vesting and the exercise of the judicial power of the- state. The article, as is admitted, became effective January 1, 1913. The second section of the article contains a formal grant of jurisdiction to this court as follows: The supreme court “shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo and appellate jurisdiction in all cases involving questions arising under the constitution of the United States or of this state, in cases of felony on leave first obtained, and in cases which originated in the courts of appeals, and such revisory jurisdiction of the' proceedings of administrative officers as may be conferred by law.” Then follow in the same section provisions relative to the election of the judges and the manner in which the jurisdiction of the court shall be exercised. Later in the' same section there is the following provision: “In cases of public or great general interest the supreme court may, within such limitation of time as may be prescribed by law, direct any court of appeals to. certify its record to the supreme court, and may review, and affirm, modify or reverse the judgment of the court of appeals.” The provision lastly quoted, though separated by many provisions from the formal grant of jurisdiction, must, we think, be regarded as bringing within our jurisdiction cases of public or great general interest decided by the court of appeals, though brought into that court after the first of January. The question chiefly discussed is whether the proceeding in cases brought from that court to this may be prosecuted according to the substance and forms of the proceeding in error formerly in vogue. That they, may be was assumed by those who have instituted the proceedings. And in support of that view it is urged that all cases pending in any of the courts of the state on the first day of. January, 1913, were, as to the judgments therein rendered, subject to proceedings in error instituted in the reviewing courts of the state successively, according to the former practice. This conclusion is said to be justified by the following provision contained in the last of the schedules to the submitted amendments: “Provided that all cases pending in the courts on the first day of January, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law.” The view presented, it must be admitted, is favored by the use of terms which without words of severalty embrace all the courts of the state.. But whatever conclusion might be required by this inartificial provision, if no other consideration intervened, it may be required in order to give effect to all contemporaneous and cognate provisions that this shall be regarded as meaning that all cases pending in the several courts of the state shall proceed in such courts according to the law then in force. This interpretation would not deny a definite purpose to the provision and it may be required by an application to the entire body of the amendments of a familiar rule of interpretation. The rule is that special provisions relating to a subject will control general provisions in which, but for such special provisions, the subject might be regarded as embraced. The subject of inquiry is the jurisdiction of this court to review judgments of the court of appeals and the manner in which that jurisdiction shall be invoked and exercised. The following provision relating specially to that subject is found in Article IY of the amendments: “All pending cases and proceedings in the circuit courts shall proceed to judgment and be determined by the respective courts of appeals, and the supreme court, as now provided by law, and cases brought into said courts of appeals after the taking effect hereof shall be subject to the provisions hereof.” Certainly the same proceeding in error could not be prosecuted in both the court of appeals and the supreme court, since to secure a review in the latter court would require the institution of a proceeding in error for that purpose. But the same observation may be made respecting the view based upon the provision of the last schedule. That view would, as this does, require the assumption that the word “case” is used in its fireside signification of a controversy that is litigated, without distinction between cases and proceedings and without regard to the point reached in the prosecution of the controversy through the several courts of the state. It seems to be conclusive of the question that effect cannot be given to all the terms of' the provision quoted from Article IV without concluding that the judgments which the court of appeals may render in cases or proceedings brought into the circuit court prior to the first day of January, 1913, may be reviewed in this court upon a petition in error filed here as a matter of legal right and in accordance with the former practice.

It seems to be quite clear that the judgments of the court of appeals in proceedings in error which were begun in that court after January 1, 1913, may be reviewed here only upon the condition and in the manner prescribed in the fourth article as amended, and the entire sentence quoted from that article denotes an evident purpose to make some distinction in that particular between error proceedings instituted in the circuit court before and those instituted in the court of appeals after January 1, 1913, if they are entitled to consideration here for no other reason than that they are cases of public or great general interest. The condition expressly prescribed' is that they shall be cases of that character and the manner in which our jurisdiction is to be invoked and-exercised is indicated only by the following provision: “The supreme court may, within such limitation of time as may be prescribed by law, direct any court of appeals to certify its record to the supreme court, and may review, and affirm, modify or reverse the judgment of the court of appeals.” The limitation of time which the legislature is authorized to prescribe has not been prescribed, as we are informed by industrious counsel who have searched through the last volume of the acts of the general assembly. The limitation prescribed by the terms of the amendment seems to be upon the action of the court and not upon the party who invokes the action, and it is entirely silent as to the manner in which the exercise of the jurisdiction to review cases of the character contemplated shall be invoked. In this situation we can get no light from a consideration of the evils to be remedied or the benefits to be accomplished, for, so far as we are aware, the evil of too frequent resort to this court was the only evil contemplated and the prevention of that, if nothing further was desired, would have been naturally accomplished by an amendment to the statute requiring proceedings in error in cases of that character to be instituted here only upon motion and leave granted.

Careful consideration is due the view that the jurisdiction of this court to review the judgments of the court of appeals in cases of public or great general interest may be invoked by a petition in error filed on leave, such leave to be granted on an application showing that the case is of public interest and so Avithin our jurisdiction and that substantial error has probably intervened. All else of our jurisdiction in error is conferred in the general and formal grant found in the earlier portion of the section of the amendment quoted. It is conferred under the designation of “appellate jurisdiction” in the same terms that were used in the constitution of 1851, laying the foundation of the practice in error which has been adhered to for more than half a century. It is said that a generation familiar with the writ of certiorari abandoned it for the simpler review by proceedings in error, and that in the amendments there is no suggestion of an intention to return to it for the reviewing of cases involving constitutional questions or cases originating in the court of appeals, and that since all • of these cases will continue to be brought here by the proceeding in error as formerly it should not be assumed that it was designed by the amendments to introduce the confusion of two modes of proceeding to invoke the exercise of the supreme court’s jurisdiction in error. The suggestion is of obvious force, and it should be regarded as conclusive if the language by which we are authorized to review cases of public interest were so vague as to admit of interpretation. Whatever may be thought of the character of the amendments submitted in September, 1912, or of the time and manner of their submission, or of the small minority vote by which they were ratified, those of them which were ratified are entitled to full recognition as parts of the organic law of the state. If we are asked how the character of a case decided by the court of appeals can be made more clear by a record sent here pursuant to our order than by the same record presented by the party who seeks to have it reviewed, we are permitted to answer that we do not know. If the inquiry is why we ignore the records voluntarily presented^ by the parties and insist that an order from this .court to the court of appeals to certify its record to us is a prerequisite to the review of cases of this character, it is a sufficient answer that it is so ordained. There can be no equivalent to a constitutional requirement. Authority to review causes of public interest is not embraced within the general grant of our jurisdiction. It is conferred as an authority to be exercised at our discretion, the authority to review to be preceded by our order to the court of appeals to certify its record to us.

The authority to review cases of this character is conferred by the terms of the amendment, apparently leaving the court to determine the manner in which its exercise shall be invoked. The legislature is authorized to prescribe the limb tation of time within which the order shall be made, which should be taken to mean the time within which it may be applied for: The authority so conferred upon the legislature not having been exercised, the entire subject seems to be within our authority to prescribe such rules as are consistent with law for the proper institution of cases here and their conduct before us. No limitation having yet been prescribed for invoking our authority with respect to cases of this character, a limitation of seventy days is now prescribed in analogy to the statute applicable to other cases in error but not to so .operate as to prevent a review of judgments of the court of appeals in cases which were brought into that court after the first of January, if they are cases of public or great general interest. Opportunity should now be granted for a resort to this court in accordance with the mode required by the amendment for cases of this character and with the rule herewith prescribed. Although the petitions in error m cases of this character having been filed without authority as required by the amendment must be dismissed, that dismissal will be without prejudice to the rights of complaining parties to apply here for orders requiring the court of appeals to certify the records to us.

Having thus stated our views of the provisions affecting the questions before us, we refer counsel and the bar of the state to the syllabus prefixed to this report for a definite statement of the rules prescribed.

The motion in the case first entitled will be overruled and in the other case it will be sustained.

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


source: Caselaw Access Project

author: Wilkin, J.

license: Public Domain

text:
    The Columbus Citizens Telephone Co. v. The City of Columbus.

      Municipal corporations—Compensation oy telephone. company—For use of streets—Franchise stipulation for percentage of gross annual receipts—Not an assessment for general revenue, when.

    1. A municipality has the power to demand and receive from a telephone company, for the privilege of digging ditches and laying and maintaining subsurface conduits for telephone wires under its streets, compensation beyond what is necessary to restore the pavement to its former state of usefulness. (City of Columbus v. The Columbus Gas Co., 76 Ohio St., 309, approved and followed.)
    2. A stipulation in the ordinance granting the privilege, which requires the company to pay, among other considerations, a certain percentage of its gross annual receipts into the municipal treasury for the use of the general expense fund, to which the company assented, though under protest, is not an assessment for general revenue in the nature of a tax.
    (No. 13303
    Decided October 14, 1913.)
    Error to the Circuit Court of Franklin cotmty.
    Facts are stated in opinion.

      .Messrs. 'Daugherty, Todd and Rarey, for plaintiff in error.

      Mr. Stuart R. Bolin and Mr. E. L. Weinland, city solicitors, and Mr. B. W. Gearheart, assistant city solicitor, for- defendant in error.
   Wilkin, J.

The city sued the telephone company for a percentage of the latter’s receipts for the year 1904, upon a contract pursuant to the ordinance of the city, wherein the telephone company agreed to pay a percentage of its gross receipts annually in consideration of a grant to the latter company of the privilege to use the streets and other püblic ways for the period of twenty-five years, for the purpose of digging trenches and laying conduits therein necessary to successfully construct and operate a telephone exchange, toll lines and police and fire-alarm system. The telephone company installed its system, and thereafter paid to the city the stipulated percentage of the gross receipts according to contract for the years 1901, 1902 and 1903, but upon demand for the percentage for 1904, refused to pay.

The companjr answered the petition, setting up two defenses. The major proposition of law upon which the answer rests is that the city is without the power tó demand or receive compensation for the use of its streets or other public ways beyond what may be necessary to restore the pavement to its former state. Section 9179, General Code. Another section provides that the mode of such use shall be such as is agreed upon between the city and the company; and-if they can not agree, the probate court shall direct in what mode the telephone line shall be constructed along such streets or public ways, so as not to incommode the public. Section 9178, General Code.

It has been decided 'by this court that “The statutes of Ohio do not confer power on the probate court to grant to a telephone company the right-to put its wires and apparatus in conduits under the streets of a city in the absence of consent by the municipal authorities.” Queen City Telephone Co. v. City of Cincinnati, 73 Ohio St., 64. Therefore these sections do not apply to an agreement for the use of subsurface conduits.

There is a statute which provides that gas, electric and water companies may lay conductors for supplying- gas, electricity and water through the streets, lands and squares of a city, with the consent of the municipal authorities, under such regulations as they may prescribe. Section 9320, General Code. And this court has held that the council of the city may require a gas company, to which it grants the right to lay its pipes and other appliances in the streets and other public places, to pay annually to the city a reasonable sum to compensate for the city’s necessary supervision after as well as during the construction of the system; and when the company accepts the terms of the grant according to law and occupies the streets under such grant, such acceptance becomes a valid contract between the parties for the annual payment of said sum; and also that a provision in the grant that said payments are “for the benefit of the gas and light fund,” does not render the ordinance invalid as a means to raise general revenue, said clause being subordinate to the principal obligation. City of Columbus v. Columbus Gas Co., 76 Ohio St., 309.

Now it is true that the statute last referred to does not ex vi termini apply to telephone companies. Nor does the statute upon which the telephone company relies in this case apply to the kind of use which the company makes of the public avenues of the city of Columbus. The plant which it installs in the streets of the city is analogous to that of gas companies. 'By the statute law of the state, municipalities are required to keep their streets open, in repair and! free from nuisance, and they are liable in damages for injuries caused by their failure so to do. In this respect a system of subsurface conduits is very different from overhead lines upon poles, as it casts upon the city greater labor, care and expense. By analogy, therefore, the stipulation for annual compensation in the contract in the case at bar, is as reasonable and should be as valid' as the stipulation in the ordinance in the case last cited. It is a reasonable exercise of the power of the municipal corporation to exercise care and control of its streets and public areas.- Section 3714, General Code. The last clause of Section 9320, “under such reasonable regulations,” being in the nature of a limitation upon the power of the. municipality to confer upon private companies the use of its thoroughfares, by inference enjoins upon the city the duty to make proper provision for the cost of supervision and repairs rendered necessary by the operations of such companies in and under its streets. Compare Section 9170-i, General Code.

It follows therefore that the legal proposition of the telephone company, which is the major premise of its defense, is untenable, and the demurrer to its answer upon that ground was justly sustained.

The other proposition underlying the second' defense is that the payments of a percentage of the gross receipts of the telephone company is a tax for a general revenue, which is unauthorized. This proposition is based upon a clause in the ordinance, and in the contract pursuant thereto, that the company shall “pay into the city treasury for the use of the' general expense fund of the city, a percentage on its- gross receipts,” etc. This court has held in the case of City of Columbus v. Columbus Gas Co., supra, that such a clause does not render the ordinance invalid, and of course it should not nullify the contract. In that case the annual stipend was by ordinance transferred to the “general expense fund.”

In their brief counsel for the company hark back to the time when the company applied for this grant and when this ordinance was passed, and assert that the company was “held up.” This would be a petty and futile plea of duress if it were set forth in the answer. The argument in the company’s brief that this clause was ah unjust “exaction,” because a rival company might be permitted to use the streets without • being subject to such payment, is not legitimate and is not proper for our consideration. See second proposition of the syllabus, City of Columbus v. Columbus Gas Co., supra.

The debtor company accepted the grant and acquiesced in its terms during three years, and has enjoyed all its privileges and emoluments. The company was free to promise the annual payment or refuse the grant. Certainly the demand for a debt thus voluntarily incurred as a recompense for a grant can with no propriety be called a tax in any sense. A tax is imposed by sovereign power; it creates an involuntary obligation.

The company alleges that it did not recognize the legality of this obligation, because it paid for . the years 1901, 1902 and 1903 under protest in writing. The answer to this proposition is found in the syllabus to Mays v. City of Cincinnati, 1 Ohio St., 268, viz.: “To make the payment of an illegal demand involuntary, it must be made to appear that it was made to release the person or property of the party from detention, or to prevent a seizure of either by the other party having apparent authority to do so without resorting to an action at law.” It does not so appear.

The company by its answer and in its brief makes the point. that the stipulation for the payment of a percentage of its earnings was no part of the consideration for the grant or for recompense for the use of the streets, because by the provisions of the ordinance and by the covenants in the contract pursuant thereto the company was bound to restore the streets to as good condition as they were in prior to the operations of the company, under the direction and to the approval of the city engineer; and on failure so to do the city engineer might do such work and collect the expenses thereof, with cost of collection, from the company. And the company also gave bond in $50,000, with sureties, conditioned that it shall indemnify .the city against loss and liability for any claims against the city for injury to persons or property growing out of the enjoyment of the privileges granted; and that the company shall perform all the conditions of said contract on its part to be performed.

A sufficient reply to this argument is that these covenants do not cover all the duties and liabilities which devolve upon the city from the construction of this telephone and fire-alarm system beneath her streets; she had a right to stipulate for recompense for the extra burden of supervision and repair after the plant was installed and the streets were restored to their former condition. This right is recognized, by implication at least, in the case which counsel for the company cite to support their point. City of Zanesville v. Zanesville Telephone & Telegraph Co., 64 Ohio St., 67.

The demurrer to the second defense was properly sustained. The judgment of • both courts below should be affirmed.

Judgment affirmed.

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


text:
    Pfeifer et al. v. Graves, Secretary of State.

      ConstiMional lazv—Initiative and referendum—Initiated bill introduced in house—Referred to committee and amended—May be submitted to electors, when—Amendments are incorporated in proposed law, when—Section ib, Article II, Constitution of 1912, construed, how—Constitutionality of a proposed law zvill not be determined, when-

    1. An initiated law, which has been introduced into the house of representatives, in compliance with Section 16 of Article II of the revised Constitution of 1912, and referred to the proper committee, which reported it back with amendments which were agreed to by the house, which took no further action upon it, may be submitted as thus amended to the electors of the state in due time after a supplementary petition properly signed and verified has been filed with the secretary of state demanding its submission in its amended form.
    2. Amendments to the proposed law, thus reported and agreed to, are thereby incorporated in it as required by said section.
    3. In a proceeding against the secretary of state, to enjoin the submission as aforesaid, the section will not be rigidly construed so as to exclude the submission for the reason that the bill as amended was not enacted by the house.
    4. The language of Section 16 is to be fairly and reasonably interpreted so as to carry out the purpose of the people who adopted the dual form of direct and indirect legislation prescribed therein.
    5. This court has no authority to pronounce an opinion, a judgment or a decree upon a mere moot question as to whether a proposed law will conflict with the Constitution, if it shall be enacted by the general assembly, or be adopted by the people.
    (No. 14412
    Decided October 14, 1913.)
    Error to the Court of Appeals for Franklin county.
    Ten days prior to the regular session of the Eightieth General Assembly, a petition duly signed and verified as required by Section 1, Ar-tide II of the Constitution, was filed with the secretary of state, to initiate a proposed law set forth therein, which was entitled thus:
    “To Prohibit the Shipment, Conveyance or Receiving of Intoxicating Liquors into Territory in which the Sale of Intoxicating Liquors as a Beverage is Prohibited.”
    This petition was duly transmitted to the general assembly by the secretary of state and wa: introduced in the house of representatives a:; house bill No. 3, on January 14, 1913. On the next day it was referred to the committee on liquor traffic and temperance and the committee reported it back to the house with certain designated amendments on the 16th day of April.- Immediately following the report of the committee as set forth in the house journal, is this clause: “The amendments were agreed to;” after which appears the following: “The bill was ordered to be engrossed and read the second time in its regular order.”
    No further action on the bill was taken by the house. Within ninety days after final adjournment of the general assembly additional names of more than 3 per cent, of the electors-of the state were signed to a supplemental petition demanding that the proposed law thus initiated and as amended be referred to the people for their adoption or rejection at the next regular election, as provided by Section lb of Article II of the Constitution, and the same was on July 25th filed with the secretary of state.
    On the 29th day of September, 1913, the plaintiff, John Pfeifer, on behalf of himself and other citizens and taxpayers in like situation, filed a petition in the court of common pleas of Franklin county, setting forth the original initiated bill and the bill as modified by the insertion of the amendments recommended by the committee and adopted by the house. The petition alleges that the proposed law was not passed by the general assembly, either in its original or amended form, nor was any amendment incorporated therein, and if adopted by the electors of the state it would be in conflict with the Fourteenth Amendment of the Constitution of the United States, and with Sections I, 2, 14 and 19 of the Bill of Rights and Section 26, Article II of the Constitution .of Ohio; that the submission of the proposed law at the election to be held November 4, 1913, will involve the useless expenditure of public moneys of the state, and that the plaintiffs are without adequate remedy at law and will be irreparably injured unless the court gives them relief. Wherefore the plaintiffs pray that the court decree that the proposed law, if adopted by the electors, would be unconstitutional and void, and that the secretary of state be enjoined from submitting it to the electors and from doing any act in respect thereto.
    The defendant secretary of state answered, denying that the amendments were not incorporated in the proposed law and that it would be unconstitutional and void if approved by the electors of the state as initiated in the supplementary petition; he alleges that the. words and phrases inserted therein, which were not in the proposed law as set forth in the original petition, are amendments which were incorporated in it by the house of representatives of the Eightieth General Assembly, and he admits each and every other aver-: ment in plaintiff’s petition.
    The plaintiffs reply, denying that the words and phrases referred to in the answer are amendments' incorporated in the law originally proposed and that it is the law originally petitioned for, with amendments incorporated by the house of representatives.
    The court of common pleas refused the relief prayed for and dismissed the petition. On error proceedings to the court of appeals this judgment was affirmed. The cause is now brought to this court for a reversal of the judgments below, and for an order as prayed for in the petition.

      Mr. A. J. Freiberg and Mr. George B. Okey, for plaintiffs in error.

      Mr. Timothy S. Hogan, attorney general;' Mr. Clarence D. Laylin and Mr. W. B. Wheeler, for defendant in error.
   Wilkin, J.

The matter we have to deal with belongs to the realm of Public Law. We have not now to decide a conflict between individual members of society, nor to determine the status and legal relations of legal bodies or social groups within the state, nor to regulate the affairs of mere official administration. We have to define a branch of the law of the being of the state itself. Our inquiry is, therefore, not hampered by scruples about “the inherent and inalienable rights and liberties of persons.” The contention is between citizens of the state and the state itself, and the question is whether its constitutional system of legislation is about to be perverted in the particulars complained of.

We have to conceive first what the initiative is; ;what is the nature and mode -of operation of the Ohio type of this political device. And we are to get our conception of it, not from our intuitions of what it ought to be, but from what the people have declared it to be, in Article II of the Charter of State, particularly in Sections 1 to lg. Next we have to conceive the principle which is involved in the mechanism, from the nature and function of it as an organ of government; and then, third, consider for what purpose the architects of our form of government devised this method of legislation for the state.

When we have a true and definite conception of the kind of direct legislation which this amendment has grafted upon the old style of indirect legislation, we need not stick in the shell of words by which this dual method is described in the document. Having determined the nature and purpose of this part of the machinery of government, we have only to interpret the verbal account of its operation so as to effect that purpose according to the essential nature of the thing. We extract the pertinent parts of the constitution as revised:

“Article II.
“Sec. 1. The legislative power of the state shall be vested in a general assembly * * * but the people reserve to themselves the power to propose to the general assembly laws * * * and to adopt or reject the same at the polls. * * * They also reserve the power to adopt or reject any law, * * * passed by the general assembly, except * * *.
“Sec. la. The first aforestated power reserved by the people is designated the initiative *■ * *.
“Sec. lb. When * * * not less than ten days prior to the commencement of any session of the general assembly, there shall have been filed with the secretary of state a petition * * * proposing a law, * * * the secretary of state shall transmit the same to the general assembly as soon as it convenes.
“[Clause 2.] If said proposed law shall be passed by the general assembly, either as petitioned for or in an amended form, it shall be subject to the referendum.
“[Clause 3.] If it shall not be passed, or if it shall be passed in an amended form, or if no action shall be taken thereon * * * it shall be submitted by the secretary of state to the electors for their approval or rejection at the next regular or general election, if such submission shall be demanded by supplementary petition verified * * * and signed * * *.
“[Clause 4.] The proposed law shall be submitted in the form demanded by such supplementary petition, which form shall be either as first petitioned for or with any amendment or amendments which may have been incorporated therein by either branch or by both branches of the general assembly.
“Sec. 16. * * * Every bill passed by the general assembly shall, before it becomes a law, be presented to the governor for his approval. If he approves, he shall sign it, and thereupon it shall become a law and be filed with the secretary of state.
“Sec. lc. The second aforestated power reserved by the people is designated the referendum * * *
“[Clause 2.] No law passed by the general assembly shall go into effect until ninety days after it shall have been filed by the governor in the office of the secretary of state, except * * *.
“[Clause 3.] When a petition, signed * * * and verified * * * shall have been filed with the secretary of state within ninety days after any law shall have been filed by the governor in the office of the secretary of state, ordering that such lazv * * * be submitted to the electors of the state for their approval or rejection, the secretary of state shall submit to the electors of the state for their approval or rejection such law * * *.
“Sec. lg. Any initiative, supplementary or referendum petition may be presented * * * shall contain * . * * the law * * * sought to be referred, or the proposed law * * *.
“[Clause 9.] Upon all initiative, supplementary and referendum petitions * * *.
“[Clause 11.] * * * persons who prepare the argument * * * against any law submitted * * * by referendum petition * * * and the persons who prepare the argument * * * for any proposed law * * * may be named in the petition * * *.
“[Clause 12.] * * * persons who prepare the argument * * * ' for the law * * * submitted * * * by referendum petition, or against any proposed law submitted by s%ipplementary petition, shall be named by the general assembly * * *.
“[Clause 16.] The style of all laws submitted by the initiative and supplementary petition shall be: ‘Be it Enacted by The People of the State of Ohio/ ”

Be it observed that these excerpts provide for three stages of a statutory law, and for three sorts of petition.

The old constitution provided for indirect legislation by a representative assembly of citizens chosen for that function. The original idea of direct legislation by initiative and referendum was, to proceed at once to the people with a proposal that they ordain a law set forth in the proposal, or to repeal a law therein set forth already enacted by the legislature. The Ohio plan, embodied in the amendment of Article II, Sections 1 to lg, is an amalgamation of the direct and indirect methods.

A proposed law is first initiated by a petition filed with the secretary of state, who transmits it to the general assembly (if the petition be properly signed and verified), where it is introduced as a bill; if both bodies adopt and pass it as proposed it becomes an act, and when it is enrolled and filed by the governor with the secretary of state it becomes a law, but subject for ninety days to the referendum, which means that it may be referred to the people for their approval or rejecr tion at the next general election. If a referendum be not taken within ninety days after the law is filed with the secretary of state, the law stands. If a referendum be called and the law be approved by the electors, then it goes into effect at once, but if it be rejected, it becomes a nullity.

Now, going back to the time the bill is pending before the legislature, either house may amend the bill and both houses may pass it as amended; then it becomes a lazu subject to the referendum as aforesaid. But at this stage it is also subject to the second initiative; that is, it may be treated, not as a law, but as a proposed law, in either of two respects—it may be considered in its amended form as a law proposed by the legislature, or the amendments may be disregarded and the original proposal may be taken up. In either form it may be presented the second time to the secretary of state by a siipplemental petition (properly signed and verified), and he shall submit it to the electors of the state for approval or rejection.

So far we have considered two contingencies —the original bill passed and the bill amended and passed, by the general assembly. But a third contingency may arise, namely, the bill may not be passed in any form, by the general assembly (both branches). In this contingency the bill in its original form or in its amended form .may be initiated the second time by supplemental petition and submitted directly to the people as aforesaid. We have now considered all contingencies that clearly seem to be provided for by the second and third clauses of Section lb.

It will be observed these clauses mention only what may be done or not done to the proposed law by the general assembly. Whether that phrase must be taken in its collective sense, as including both houses in the contemplation of both clauses where amendment of the law is mentioned, we do not find it necessary to consider now. In this case the only amendments asserted are those alleged to have been made by the lower house; and the fourth clause, on which both sides of the controversy rest their claims, provides for “amendments which have been incorporated [in the bill] by either branch or by both branches of the general assembly.” It is perfectly manifest, therefore, that one purpose of this revision of Article II is to give either or both branches of the legislature a chance to consider a proposed law, and to propose amendments to it, before it is submitted to the people by the initiative or the referendum. When the amendments are incorporated by either house, they are submitted by the second initiative. When the amendments are incorporated and the. law is passed by both houses, the bill thus amended may be submitted by the referendum. In the latter case they have been made a part of the law passed by the general assembly and must be referred with it (Section lc and clause 2 of Section 1&). In the former case (the initiative), they may. or may not be submitted, at the option of the supplementary petitioners.

Now we come to the precise question in controversy: Were these amendments “incorporated” in this proposed law by the lower house where it was introduced' as house bill No. 3?

That the amendments reported by the committee to which the bill was referred were agreed to by the house, must be taken as a fact established by the house journal, plaintiffs’ subtle argument to the contrary notwithstanding. But plaintiffs’ main contention is that this fact does not “incorporate” the amendments in the proposed law, because the bill was not passed by the house.

Their argument, substantially in their own language, runs thus: “The philosophy of the agreement to the committee .amendments is, that if (as) the committee has amended the bill, the house chooses to proceed to the consideration of the measure as amended rather than to debate the bill as originally proposed * * *. ‘Incorporate’ means ‘to place in a body; to embody.’ (Cent. Die.)- The house never having passed the bill itself, it (the house) cannot be said to have embodied the amendments in the bill.” The gist of this bit of ratiocination is this: I. The committee amended the bill, the house did not, therefore the house did not embody the amendments in the bill. II. The house amends a bill only by passing it. The house did not pass it, hence did not amend it.

Let’ us test these propositions. Are they true? The plaintiffs refer us to Robert’s Rules as the parliamentary law of the assembly. One of them, rule 31, “Adoption of Reports,” reads thus: “When the Assembly is to consider a report, * * * a motion should be made to ‘adopt,’ ‘accept,’ or ‘agree to’ the report, all of which, when carried, * * * make the doings of the committee become the acts of the assembly, the same as if done by the assembly without the intervention of a committee.” Then the amendments reported by the committee, having been adopted by the committee, became adopted by the assembly when the assembly “agreed to” them. Therefore proposition I is not true, unless “to embody” amendments in a bill means something else than adopting amendments to the bill—which is absurd.

In support of proposition II the plaintiffs cite house rule 67: “When a bill has passed the house, tlie clerk shall read its title, substituting the word ‘act’ for the word ‘bill.’ ” Upon this rule they make this comment: “When the bill has passed, it is an act and not before.” Certainly, a bill passed to an act is a bill passed. But this does not prove that a bill may not be amended before it is passed. Hence their conclusion that this, bill was not amended because it was not passed, is also without logical Sequence.

Counsel for plaintiffs further ' say: “The phraseology ‘the amendments were agreed to’ was not intended by the house to be an incorporation of the committee amendments in the bill in any ‘final sense.’ ” This court can not find upon the record that the legislature’s last action on the bill, adopting these amendments,’was attended with a mental reservation that they were not adopted in a “final sense.” The house has left no hint that it contemplated further action. But if so, the Constitution, fourth clause of Section lb, does not require the amendments to be incorporated finally in the bill. This would be contrary to the reason as'well as to the text of this revision. The purpose plainly is that proposed amendments may be submitted to the people, whether they are adopted in the proposed law finally or only provisionally, in order to have them discussed and to take the sense of the house upon them. The plain language is that the initiated law may be submitted to the people with or without changes' proposed by the legislature. The Ohio plan of the initiative is, first to submit the proposal to the body especially delegated to make laws, in order to have the benefit of its knowledge, experience and discussion before the proposal is directly passed upon by the people. There seems •to be no reason why the changes proposed by the legislature should be excluded from the submission because the bill was not passed by the house with the modifications which it wrote into them; on the contrary, there are plausible, good reasons why proposals made by the legislative department of government should be submitted to the people along with the proposals made by the petitioners.

Now observe the text, clause 4: “The proposed law shall be submitted in the form demanded

* * * which form shall be either as first petitioned for or with any amendment or amendments * * * incorporated therein by either branch or by both branches of the general assembly.” Clause 3: “If it shall not be passed, or if it shall be passed in an amended form, or if no action shall be taken thereon * * * it shall be submitted,” etc.

Does “thereon” refer to • the original and not to the amended form? If it refers to the amended form, and if no action be taken on the amended form (which is precisely the case at bar), then that form may be submitted. But plaintiffs say it cannot be submitted, just because no action was taken on it. They contradict the document' itself.

The plaintiffs’ ■ last proposition in argument is that “the amendment [to the constitution] demonstrates * * * that much more was intended than a mere suggestion or tentative adoption of change in the form of the originally initiated law.” That is the very conclusion to which they should have brought the mind of the court. We have considered the reasons which they have given in their brief to bring us to that conclusion, and we have found them invalid or insufficient.

■ The decision hangs upon the construction of a power. The power is defined in Section 1 of Article' II, thus: “The legislative power of the state shall be vested in a general assembly * * * but the people reserve to themselves the power to propose to the general assembly laws * * * and to adopt or reject the same at the polls.” The first named is a delegated power —from the people to their legislative agents or' representatives. The second is a reserved power; it comprehends all of the sovereign power of legislation not thus delegated. Instinctively the legal mind affirms that the delegated power is to be strictly construed with reference to the purpose for which it is granted. But on the contrary the reserved original power is not to be restricted by any limitations, except such as are imbedded in the federal constitution. This would be a preposterous assumption on the part of this court, exercising judicial authority conferred by the same sovereign. We ■ cannot restrain an agent of the executive department from the exercise of functions within the general scope of the authority conferred by the people on that department of government, unless the act is clearly forbidden by the organic law of the state, especially where the act is merely preparatory to the direct exercise of the sovereign power of the people to legislate for themselves. It is our duty to interpret the language of the constitution according to its fair and reasonable import and the common understanding of the people who framed and adopted it. The clause in question, read in connection with the context, by fair and reasonable construction, does not convey the meaning which the plaintiffs seek to give it by a rigid construction. Therefore their contention can not be sustained.

There is another indisputable and imperative reason why the remedy they invoke must be denied. We can not intervene in the process of legislation and enjoin the proceedings of the legislative department of the state. That department is free to act upon its own judgment of its constitutional powers. We have not even advisory jurisdiction to render opinions upon mooted questions about constitutional limitations of the legislative function, and we will not presume to control the exercise of that function of government by the general assembly, much less by the people, in whom all the power abides. The legislature, having delegated authority, prescribed and limited by the constitution, may exceed its authority by promulgating a law in conflict with the constitution. In a clear case of the latter sort, where the void law is .about to be enforced against a citizen to his prejudice, we may enjoin execution of the law, for the protection of the rights of person or property guaranteed by the constitution. This is not such a case; no private rights of person or property are in jeopardy, and there is no law or semblance thereof complained of. We are simply asked to regulate the affairs of another branch of government, in deference to the general welfare, in a matter quite outside and independent of our authority. We are asked to prevent the people from exercising the initiative, upon a quizzical interpretation of a single word in their own letter of authority to their secretary of state. We can not enjoin the sovereign state of Ohio where the people have not in their constitution, clearly beyond reasonable doubt, limited the. exercise of their power to legislate directly by the initiative. Therefore the writ must be refused.

Judgment of the lower court affirmed.

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


author: Johnson, J.

text:
    Thomas, Jr, v. The Board of County Commissioners of Hamilton County.

      Assistant city solicitor—Designated as prosecuting attorney of police court—Under Section 1536-663, Revised Statutes—Entitled to compensation from county, when.

    An assistant city solicitor who was designated by the city solicitor to act as prosecuting attorney of the police court under 'the authority conferred by Section 1536-663, Revised Statutes, then in force, and who pursuant to such designation performed the duties of the position referred to, was entitled to receive the compensation allowed by law for such services.
    (No. 13550
    Decided October 14, 1913.)
    Error to the Circuit Court of Hamilton county.
    Facts stated in the opinion.

      Messrs. Robertson & Buchwalter, for plaintiff in error.
    . Mr. Thomas L. Pogue, prosecuting attorney, and Mr. John V. Campbell and.Mr. Charles A. Groom, assistant prosecuting attorneys, for defendant in error.
   Johnson, J.

Plaintiff in' error was duly appointed by the solicitor of the city of Cincinnati as one of the assistant city solicitors and was designated by the solicitor to act as prosecuting attorney of the police court of the city. He assumed his office on January 1, 1908, and performed its duties during 1908 and 1909. ( It is shown by an agreed statement of facts in the case that he received the salary fixed by the city and that the county commissioners in their semi-annual appropriation passed resolutions appropriating $400 for the police prosecutor, without designating the name of the person to whom such money was to be paid.

The agreed statement further shows that during 1908 and 1909 warrants for said money were issued by the county auditor. The warrant for the first quarter of 1908, amounting to $200, was issued to the plaintiff in error and the money paid from the treasury of the county to him. Thereafter all warrants were issued to and cashed by the city solicitor of the city under whom the plaintiff in error was acting. The plaintiff in error claims that the compensation should have been paid to him, and he now claims the monthly installments for the balance of the year 1908 and for the whole of the year 1909. Plaintiff in error presented this claim to the county commissioners, which was disallowed, and the court of common pleas and circuit court sustained this position of the commissioners. This proceeding is brought to reverse the judgments below.

Pertinent parts of Section 1536-663, Revised Statutes, which was in effect at the time of the appointment, are as follows: “The solicitor shall also be prosecuting attorney of the police court, and shall receive for this service such compensation as council may prescribe, and such additional compensation as the county commissioners shall allow; provided, that where council allows an assistant or assistants to the solicitor, said solicitor may designate an assistant or assistants to act as prosecuting attorney or attorneys of the police court. The duties of the solicitor as prosecuting attorney of the police court shall be such as are provided in Section 1813 of the Revised Statutes; such as are provided in this act, and in all other acts or parts of acts applying to all cities of the state and not inconsistent herewith. In case of the inability or absence of the' solicitor or any of his assistants to act as prosecuting attorney of the police court, the provisions of Section 1815 of the Revised Statutes shall apply.”

Section 1536-844, which is the same as Section 1813, provides that the prosecuting attorney of the police court shall prosecute all cases brought before that court and perform the same duties, as far as. applicable, as the prosecuting attorney of the county, and further provides for his compensation from the city and the commissioners.

Section 1815, Revised Statutes, which is the same as Section 1536-846, Revised Statutes, provides for the appointment by the police judge of a prosecuting attorney for the police court in case of a temporary inability or absence of such prosecuting attorney, or of a vacancy in the office.

Under the code of 1869 the offices of solicitor and prosecuting attorney of the police court in cities of the first class were distinct from each other and were elective. This continued until March, 1891, when an act was passed providing for the appointment of a prosecuting attorney of the police court by the mayor with the advice and consent of the board of legislation.

The cases of The State, ex rel., v. Jones, 66 Ohio St., 453, and The State, ex rel., v. Beacom, 66 Ohio St., 491, having declared invalid the classification by the legislature of municipalities beyond the classes authorized by the constitution, the municipal code of October 22, 1902, was enacted. The repealing clause of this act does not specify Section 1536-844 or Section 1536-846, being the sections referred to in the body of Section 1536-663. They are, therefore, still effective, and in so far as they may affect any of the provisions of Section 1536-663 must be considered in its construction. However, Sections 1536-844 and- 1536-846 were manifestly passed in contemplation of the fact that in certain cities to which they applied the office of prosecuting attorney of the police court was separate and distinct from that of city solicitor. The municipal code of October, 1902, whose paramount purpose was the abolishing of classification of cities, such as had prevailed theretofore, did not provide for the office of prosecuting attorney 'of the police court as it had existed before, but provided for the designation by the city solicitor of an assistant or assistants -for the performance of its duties. The solution of the question here, therefore, depends upon the construction of Section 1536-663, Revised Statutes. That section provides that the solicitor shall be prosecuting attorney of the police court and shall receive for this service such compensation as council may prescribe and such additional compensation as the county commissioners shall allow; provided that where council allows an assistant or assistants to the city solicitor, said solicitor may designate an assistant or assistants to act as prosecuting attorney of the police court. Not much assistance can be had from discussion of the varying significance of a proviso in statutes. It is not to be interpreted in a purely technical sense, and generally its meaning must be gathered from the context of the statute in which it is found. The contention here is that as the statute enacts that the • solicitor shall be ‘prosecuting attorney, the status is not changed by the exercise of the authority conferred upon him in the proviso to designate an assistant to act as prosecuting attorney. Having in view the purpose of the legislation, the prior state of the law and the duties of the office, we think it is apparent that this statute was passed for the purpose of providing for the selection of the official named, and that when the city solicitor designated one of his assistants to act as prosecuting attorney, he clothed the designated person with all of the attributes of the office. Otherwise the proviso would have been wholly useless. The very purpose of having assistants to the solicitor, or any other public officer, is to secure the participation by them in the performance of the duties of the office. Without this proviso the city solicitor could, at any time, have assigned the performance of the duties of prosecuting attorney of the police court to some of his assistants. He could have called one of them to his aid in the performance of those duties as occasion might require, in the. same manner that he allots the trial of civil suits in which the city is a party, to his different assistants. It is well known that in many instances such assistants have full control of matters of great importance in the courts and elsewhere. They receive their authority to perform their duties solely because they are assistants and have been given the work to do by the city solicitor.

This proviso, we think, was intended to enable the solicitor to wholly separate himself from the duties of the office of prosecuting attorney of the police court, and in effect to make an appointment to that position.

It is urged that as the sole provision for compensation is found in the section referred to, which provides that the solicitor shall be prosecuting attorney “and shall receive for this service such compensation,” therefore the solicitor himself is the one to whom the compensation is given. But in the view we have taken the section gives him authority to appoint an assistant to “perform this service” and relieve himself from it. Manifestly the legislature intended that the one performing this service should receive the compensation. The language of the statute is “shall receive for this service such compensation.”

In the recent codification of the statutes the sections under investigation here are included in Sections 4306 and 4307, General Code. In Section 4306 it is provided that the solicitor may designate an assistant to perform such services, and in Section 4307 it is provided that the persons thus appointed shall be subject to approval of council and such assistants shall receive for their services in city cases such salaries as the council may prescribe, and the county commissioners may allow such further compensation as they deem proper.

Whatever consideration may be given to a general codification in the ascertainment of legislative. intent- may be properly invoked here, although it must be conceded that in this instance the language employed in the codification is more explicit than in the original act.

For the reasons given the judgments of the circuit court and common pleas will be reversed and the cause remanded to the court of common pleas with instructions to enter judgment for plaintiff in error.

Judgments reversed.

Donahue, Wanamaeee and Newman, JJ., concur. Nichols, C. J., not participating.


author: By the Court.

text:
    Perkins v. The Board of County Commissioners of Putnam County.

      Motions by both plaintiff and defendant for directed verdict—Subsequent motion to submit case to 'jury—Case to be submitted to jury, when.

    (No. 13308
    Decided October 14, 1913.)
    Error to the Circuit Court of Putnam county.

      Messrs. Bailey & Leasure, for plaintiff in error.

      Mr. J. W. Smith, for defendant in error.
   By the Court.

Plaintiff brought an action in the common pleas court of Putnam county against defendant for damages on account of injuries claimed to have been sustained through the negligence and carelessness of defendant. To the petition was filed an answer consisting of a general denial and the defense of contributory-negligence. The charge of contributory negligence was denied by reply.

The case went to trial to a jury, and, at the close of all the evidence, defendant moved the court to instruct the jury to return a verdict in its favor, and, thereupon, plaintiff moved for a directed verdict in his favor. These two motions were presented to the court and the motion of defendant was overruled. Thereupon, a request was made by defendant that the case be submitted to the jury for its determination on the evidence, which request was refused. The court then sustained the motion of plaintiff for a directed verdict in his favor, and the jury found for him in an amount directed by the court. Upon the overruling of the motion for a new trial by defendant, judgment was rendered in favor of plaintiff in the amount found by the jury in the directed verdict.

Error was prosecuted to the circuit court by the defendant in error herein, and that court reversed the judgment of the court of common pleas upon the sole ground that the court had erred in refusing the request of the defendant below to submit the cause to the jury on the evidence after its motion to direct a verdict at the close of all the evidence had been overruled, the circuit court finding no further error in the record.

Plaintiff in error is seeking a reversal of the judgment of the circuit court, and we shall refer briefly to the cases cited in support of his. contention.

In the case of Strangward v. American Brass Bedstead Co., 82 Ohio St., 121, a motion was made by each party after the impaneling of the jury for a verdict on the pleadings. The court held that such motion by each party was a waiver of a jury trial and a submission of the case to the court, and that a party could not, as of right, after his motion had been overruled and that of the other party sustained, give evidence in support of his case. The court say that the offer to give evidence came too late, the cause having already' been submitted to the court and the court having rendered its judgment on the motion.

In the case before us, the motions were not made until the close of all the evidence, and the request of defendant that the case be submitted to the jury was made before judgment was rendered.

In First Natl. Bank v. Hayes & Sons, 64 Ohio St., 100, it is held that where at the conclusion of the evidence in the case each party requests the court to instruct the jury to render .a verdict in his favor, the parties thereby clothe the court with the functions of a jury, and where the party whose request is denied, does not thereupon request to go to the jury upon the facts, the verdict so rendered should not be set aside by a reviewing court, unless clearly against the weight of the evidence. .

It will be observed in that case that the party whose motion for a directed verdict was denied did not request the court to submit the case to the jury for its determination upon the evidence. Had such a request been made, it is obvious from the opinion of the court that a different conclusion would have been reached, for the court say that the omission of the plaintiff to ask the court to submit the case to the jury, after it had directed a verdict for defendant, must be taken as a waiver of its right to pass upon the evidence. The court further say that where, at the close of the evidence, each party moves the court for the direction of a verdict in his favor, each party must have intended to submit the case to the court for its finding upon the facts as well as the law.

In Koehler v. Adler, 78 N. Y., 287, followed and approved by later New York cases, it is held that when both parties ask for a directed verdict in their favor, respectively, it will be assumed that they intend to waive the right to a submission to the jury and consent that the court shall decide the questions of law and fact involved; but the court say that this presumption is repelled when the party whose request is denied thereupon asks to go to the jury upon the questions of fact.

This is the holding of practically all the cases on the subject. Applying it to the case under consideration, it follows that defendant below was entitled to a submission of his case to the jury on the facts, and the trial court, having denied it this right, committed prejudicial error.

• The judgment of the circuit court in reversing that of the common pleas court is affirmed.

Judgment of circuit court affirmed.

Nichols, C. J., Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    Miller v. The Lake Shore & Michigan Southern Railway Company et al.

      Acceptance of deed and entering into possession^—Binds grantee, when—If grantee accepts benefits, he cannot reject burdens.

    (No. 13353
    Decided October 14, 1913.)
    Error to the Circuit Court of Lorain county.

      'Mr. John J. Sullivan and Messrs. D. J. & D. F. Nye, for plaintiff in error.

      Mr. H. C. Johnson and Mr. S. H. West, for defendant in error.
   By the Court.

In this case the circuit court found the following facts:

“First: The defendant, The Lake Shore ,& Michigan Southern Railway Company, was. before the commencement of this action, organized by the consolidation of The Junction Railroad Company, and other railroad companies, and at the time of the commencement of this action, was existing under and by virtue of the laws of the state of Ohio, and owned and operated a railroad extending from Cleveland, Ohio, to Chicago, Illinois, which railroad passes .through the village and township of Amherst, Lorain county, Ohio, and said defendant company has owned and operated said railroad continuously for more than thirty years last past.

“Second: That said Junction Railroad Company was incorporated under an act entitled, ‘An act to incorporate the Junction Railroad Company’ enacted by the general assembly of the state of Ohio, on the 2nd.day of March, A. D. 1846; that the 7th section. of said act, provides as follows:

“ ‘Sec. 7. That the directors shall have power to determine the number and kind of tracks, turnouts, branches, carriages, conveyances, storehouses, depots and other fixtures and machinery, prescribe the mode of transportation, and have power to construct a single or double track railroad.’

“That there was no other provision in said act or any of the amendments thereto providing for the number of tracks that said railroad company might - construct.

“Third: The plaintiff, during the years 1867, 1872 and 1873, acquired title to a -farm consisting of about one hundred and twelve (112) acres of land situated in the' township of Amherst, county of Lorain, and state of Ohio, and ever since said dates has been, and still is, the owner of said farm.

“Fourth: The said Junction Railroad Company, the predecessor of the defendant, The Lake Shore & Michigan Southern Railway Company, prior to 1867 procured from Frederick Onstine and Daniel Onstine the right to use for railroad purposes a right of way not to exceed one hundred (100) feet in width, over and across the land which was owned by the plaintiff, Joseph R. Miller, at the time of the commencement of this action, and prior to the year 1869 said railroad company had constructed a single main track over and along said right of way.

“Fifth: The defendant, The Lake Shore & Michigan Southern Railway Company, after the year 1869 and prior to the 3rd day of May, 1889, constructed one additional main track and one side track over and along its right of way over the plaintiff’s, said land, so that on the 3rd day of May, 1889, said defendant railway company had two main tracks and one or more side tracks over and along its right of way across said plaintiff’s said land, which said tracks extended in an easterly and westerly direction.

“Sixth: The highway leading past said plaintiff’s said farm extended along the south side thereof about thirty (30) rods southerly and nearly parallel to the right of way of the defendant, The Lake Shore & Michigan Southern Railway Company, aforesaid, and the plaintiff’s residence was, on the 3rd day of May, 1889, and still is situated on the north side of the said right of way of the defendant company and about thirty (30) feet north of the north line of said right of way; that at said last-named date and continuously thereafter until the present time, the said plaintiff’s, natural and most convenient means of access to his residence and farm buildings (which farm buildings were on the north side of- sáid railroad track) was by a private way across his land and across the defendant’s right of way and railroad tracks.

“Seventh: On the said 3rd day of May, 1889, the defendant railway company was desirous of purchasing from the plaintiff, a strip of land on the south side of its right of way for the purpose of constructing thereon other side tracks and at that time there was a proceeding pending in the probate court of Lorain county, Ohio, wherein the defendant herein, .The Lake Shore & Michigan Southern Railway Company, was plaintiff, and the plaintiff herein, Joseph R. Miller, was defendant, whereby the said defendant railway company sought to appropriate said strip of land. That for the purpose of settling said case and to induce the plaintiff herein, Joseph R. Miller, to convey said strip of land to said defendant, The Lake Shore & Michigan Southern Railway Company, the said railway company promised and agreed, among other things, that it would construct no more tracks on the north side of its main track as it then existed so long as said house was occupied as a dwelling house; and thereupon said entire agreement was put in writing and embodied in a deed given by said plaintiff herein to said defendant, The Lake Shore & Michigan Southern Railway Company, which said contract and deed is in words and figures following, to-wit: .

“ ‘This indenture, made the 3rd day of May, in the year of our Lord, one thousand eight hundred and eighty-nine, between Joseph R. Miller and Helen A. Miller, his wife, of the township of Amherst, in the county, of Lorain and state of Ohio, the grantors, and The Lake Shore & Michigan Southern Railway Company, the grantee,

“ ‘Witnesseth: That the said grantor, for and in Consideration of the sum of one thousand ($1,000.00) dollars, lawful money, to him in hand paid by the said grantee at or before the ensealing and delivery of these presents, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold, released and confirmed, and by these presents does grant, bargain, sell, release and confirm unto the said grantee, and to its?' successors and assigns forever: All that certain piece or parcel of land, situate in the township of Amherst, county of Lorain, and state of Ohio and bounded and described as follows, to-wit:

“ ‘Being part of lots 98 and 3, in Amherst township, Lorain county, Ohio, and beginning in the south line of right of way of The Lake Shore & Michigan Southern Railway and in the west line of lands of Joseph R. Miller; thence southerly along said west line to a point 30 feet southerly from said right of way line, measured at right angles thereto; thence easterly 485 6-10 feet to a point 15 feet southerly from said right of way line measured at right angles thereto; thence easterly 200 5-10 feet to said south line of right of way; thence westerly along said south line of right of way 676 6-10 feet to the place of beginning, and containing 283-1000 of an acre more or less.

“ ‘It is also stipulated and agreed between the parties hereto as a part of the consideration for this conveyance:

“ ‘1st. That the grade at the top of the rail at Miller’s farm crossing when the improvement is completed shall not be lowered more than four (4) feet.

“ ‘2nd. That there shall be no tracks north of the present tracks in front of Miller’s house while said house is occupied as a dwelling except as may be necessary in the work of excavation for the change of grade.

“ ‘3rd. That when the work is finished the quarry switch tracks shall not connect with the main track east of the corporation line, and the present quarry track on the south side shall be .taken out and connected west of the corporation line.

“ ‘4th. That said company shall construct a good farm crossing for temporary use at some suitable place on Miller’s land east of the present one and before disturbing Miller’s present crossing, and said Miller shall consent and does hereby consent to the vacation of his present crossing for a period not exceeding one year after the present crossing is taken up. And said Miller agrees during this time to use the crossing provided for temporary use. When the change of grade is finished and within one year from the removal of his present crossing said company shall immediately construct and maintain a good farm crossing at the site of the present one, or at a place within one hundred (100) feet east thereof as said Miller may direct, with approaches of one foot rise to fifteen feet horizontal upon its right of way, and if necessary to make the approaches of the grade mentioned it may cut upon the land of Miller.

“ ‘5th. That the company will so make its excavation for change of grade that the land of Miller will not be damaged by sloughing off.

“ ‘6th. That the sod on the right of way between Miller’s house and the tracks shall not be removed by said company except as much as may be necessary in excavating for the change of grade, and after the improvement is completed said company shall restore the cut to a uniform sl’opé and leave the banks in as good condition as may be considering the nature of the work done.

“ ?The land hereby conveyed is showed by lines marked A, B, C and D on plat hereto attached and made a part hereof, but subject to all legal highways.

“ ‘Together with all and singular the testaments, hereditaments and appurtenances thereunto belonging, or in anywise appertaining; and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title and interest whatsoever of the said grantor, either in law or equity, 'of, in or to the above bargained premises.

“ ‘To have and to hold the said premises above described, with the appurtenances, unto the said grantee, and to its successors and assigns forever.

“ ‘And the said grantor, for his heirs, executors, and administrators, does covenant and agree to and with the said grantee, its successors and assigns, that at and until the- ensealing and delivery of these presents he is well seized of the -premises above conveyed as a good and indefeasible estate in fee simple, and has good right to bargain and sell the same in the manner and form as above written,' and that the same are free from all incumbrances, whatsoever.

“ ‘And, furthermore, I, the said grantor, do by these presents bind myself and my heirs forever to warrant and defend the above granted and bargained premises, to it, the said grantee, its successors and assigns, ágainst all lawful claims and demands whatsoever.

“ ‘And I, the said Helen A. Miller, do hereby remise, release, and forever quit-claim unto the said grantee, its successors and assigns, all my right and title of dower in the above described premises.

“ ‘In witness whereof, the said grantors have hereunto set their hands and seals the day and year first above written.

“ ‘Joseph R. Miller,

“ ‘Helen A. Miller.

“ ‘Signed, sealed and delivered in presence of “ ‘J. B. Miller.

“ ‘H. G. Redington.

“ ‘State of Ohio, )

“ ‘County of Lorain, ) SS'

“ ‘On the 4th day of May, A. D. 1889, before me, a notary public in and for said county, came the above named Joseph R. Miller and Helen A. Miller, and acknowledged the above indenture to be their free act and deed, and desired that it might be so recorded.

“ ‘Witness my hand and seal the day and year above written.

“ ‘H. G. Redington,

“‘(Seal) Notary Public.’

“Eighth: The defendant, The Lake Shore & Michigan Southern Railway Company, accepted said deed, caused the same to be recorded in the records of deeds of Lorain county, Ohio (Vol. 63, page. 460), immediately took possession of said land, constructed said tracks thereon, and has continued to use and occupy said land from the said 3rd day of May, 1889, until the present time and is still occupying the same.

“That said railway company cut down its grade in front of said Miller’s house, caused said Miller to use. a crossing about thirty (30) rods east of his former crossing for nearly one year.

“That said plaintiff Miller has fully performed all the conditions required of him to be performed by the terms of said contract set forth in said deed and still occupies said house as a dwelling for himself and family.

“Ninth: The defendant, The Lake Shore & Michigan Southern Railway Company, has continuously from the said 3rd day of May, 1889, up to a time just prior to the commencement of this action, recognized said contract as set forth in said deed and respected the rights of said plaintiff thereunder.

“Tenth: The defendant, The Lake Shore & Michigan Southern Railway Company, just prior to the commencement of this action, constructed two tracks, on the north side of its north main track east of said plaintiff’s residence and threatened to construct one or more tracks on the north side of the north main track as located on the 3rd day of May, 1889, between said north track and the plaintiff’s said residence; and upon the trial of this case the defendant admitted that unless restrained by an order of the court it intended and still intends to construct said track between said north main track and said plaintiff’s residence.

“That said defendant claims the right to construct other .tracks between its said main track and plaintiff’s house notwithstanding the contract entered into between it and said plaintiff on the 3rd day of May, 1889, which contract is embodied in said deed.

“Eleventh: The defendant, The Lake Shore & Michigan Southern Railway Companyj contemplates using the tracks so to be constructed on the north side of the main track as located on May 3rd, 1889, as part of a four-track railroad along and through said township and county.

“Twelfth: There are located on the south side of the defendant’s railroad, stone quarries from which are taken large quantities of sand stone which are shipped by car loads over said defendant’s railroad; that the defendant railway company deems it expedient and necessary to have the cars so loaded with stone to be shipped east on the south side of said railroad and to have the cars to be shipped westerly, on the north side of said railroad so that they may be picked up by passing trains. That formerly the east-bound trains on said railroad were run on the north main track of said railroad, and the west-bound trains were run on. the south main track of said railroad, but within the last two years said defendant company in order to conform to the general railway practice in the United States, has changed its direction of current of traffic so that the east-bound trains now run on the south main track and the west-bound trains run on the north main track, so that it has seemed expedient and necessary in the opinion of the defendant railway company to put sidings for cars going westerly on the north side of its main track between the present north main track of the defendant company and said Miller’s resk dence.

“Thirteenth: On the north side of the main tracks of The Lake Shore & Michigan Southern Railway Company, west of the residence of the plaintiff, there is land both on said defendant railway company’s right of way and north of its ■right of way to construct other tracks which could be used for railroad purposes.

“Fourteenth: There is land on the south side of the present right of way of the said defendant railway company both east, west and opposite to said plaintiff’s residence upon which, tracks for the use of the railroad company could be constructed; but in order to connect with tracks already constructed and in use north of the north main track, and easterly of plaintiff’s said residence, the construction herein sought to be enjoined is necessary.

“Fifteenth: The north main track of the defendant company, as located on May 3, 1889, is and was sixty-six (66) feet south of the south line .of the plaintiff’s residence; that the usual distance from the center of one track to the center of another track is thirteen (13) feet and that for every additional track placed on the north side of the north rail of the defendant’s main track, as located on the 3rd day of May, 1889, will bring the north line of said additional'' track thirteen (13) feet nearer said plaintiff’s residence:

“Sixteenth: The north line of the right of way of the defendant company was, on the 3rd day of May, 1889, and ever since that time has been and is now seventeen arid one-half (17)4) feet south of the south line of the plaintiff’s dwelling house.”

By the acceptance of this deed described in this finding of facts and the entering into the possession of the premises conveyed thereby, the grantee, The Lake Shore & Michigan Southern Railway Company, bound itself to the performance of each and every condition written therein, and it cannot now be permitted to retain the benefits thereof and reject the burdens imposed by these conditions.

•If the present needs of the railroad company require the doing of the things sought to be enjoined in this action, it cannot be permitted to do so in defiance of its positive contract. In other words, it will not be permitted to accept and retain the benefits conveyed by this deed and reject its burdens.

Therefore, the judgment of the circuit court is reversed and a perpetual injunction is allowed as prayed for in the amended petition until The Lake Shore & Michigan Southern Railway Company obtains the right by appropriation or otherwise to do and perform the things herein enjoined.

Judgment reversed and judgment for plaintiff in error.

Johnson, Donahue, Wanamaker and Wilkin, JJ., concur. Nichols, C. J., not participating.


text:
    Hahn v. McBride et al., Partners, etc.

      !'Nonresident attorney should not rely upon notification hy opposite counsel or clerk of court—Of date set for trial.

    (No. 13563
    Decided October 14, 1913.)
    Error to the Circuit Court of Richland county.

      Mr. William B. Woods, for plaintiff in error.

      Mr. N. M. Wolfe, for defendants in error.
   By the Court.

This proceeding, in error is prosecuted to reverse the judgment of the circuit court affirming the judgment of the common pleas court in overruling the motion of plaintiff in error to vacate judgment of dismissal theretofore entered in said cause.

It appears from the record that this cause was regularly set for trial June 6, 1911; that on said day the plaintiff did not appear, and on the next day, June 7, the court dismissed the action for want of prosecution at costs of plaintiff. Later a motion was filed to vacate this judgment of dismissal for the reason that counsel for plaintiff in error was not advised that the cause had been assigned for trial on June 6, 1911. It appears that counsel for plaintiff in error was a nonresident of Richland county and depended entirely upon the clerk of the courts to notify him when the cause would be assigned for trial, but it does not appear' that he had made any arrangement with the clerk to that effect.

It further appears from the record that a former judgment in this case in favor of plaintiff in error had been reversed by the circuit court and remanded to the common pleas court for a new. trial. One of the reasons assigned by the circuit court for the reversal of this judgment was that “the court of common pleas érred in overruling the demurrer of defendants below.” No error was prosecuted to this judgment of reversal, and, therefore, the judgment of the circuit court in that behalf was final. That judgment was entered on the 25th of January, 1911. No effort was made by the plaintiff to amend this petition until June 7, 1911, after the cause had been dismissed for want of prosecution, when an amended petition was sent through the mails to counsel for defendant, requesting his consent to file the same. There having been a final adjudication on January 25, 1911, that the petition of the plaintiff did not state a cause of action, it thereupon became the duty of the plaintiff to file an amended petition within a reasonable time thereafter, and his failure to do this for almost five months was sufficient to authorize the trial court to dismiss the action for want of prosecution without reference to failure of plaintiff to appear on the day the cause was regularly assigned for trial.

It does not appear that counsel for defendant was in any wise responsible for the fact that nonresident counsel was not informed of the date fixed for the trial of this cause. Clearly counsel for plaintiff in error does not show that he exercised any diligence whatever to ascertain that fact, nor did he make any arrangements with any one to advise him when this cause would be assigned for trial. Although he resided in another county, and was, therefore, not in position to know what was being done in the Richland county courts, it seems that he relied entirely upon the kindness of the clerk and the courtesy of opposing counsel to take care of his cause for him. During all this time he permitted this cause to encumber the docket of the Richland county court without making any effort whatever to file an amended petition or bring it to trial. He can not now be heard to complain that the court relieved its docket of a cause in which by the judgment of the circuit court the defendant was entitled to judgment upon the pleadings any day that he might request it. Upon the motion to vacate this judgment he does not offer to the court any amended petition showing that he has a cause of action against the defendant.

The judgment of the common pleas court dismissing this cause was not an abuse of discretion and the circuit court did not err in affirming that judgment.

Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wan am aker, Newman and Wilkin, JJ., concur.


text:
    Forsythe v. The Norfolk & Western Railway Company.

      Sufficiency of averments of petition—To rescind contract—No averments of fraud or mistake—Mere claim of insufficiency of consideration—Petition demurrable.

    (No. 13577
    Decided October 14, 1913.)
    Error to the Circuit Court of Scioto county.

      Messrs. Evans '& 'Crawford, for plaintiff in error.

      Mr. Oscar W. Newman, for defendant in error.
   By the Court.

The only question presented by the record in this cause is the question as to the sufficiency of the petition. A general demurrer was sustained by the common pleas court to this petition and on appeal to the circuit court that court also entered a like judgment.

The plaintiff seeks in his petition to rescind a contract entered into between himself and the defendant railroad company on the 29th day of March, 1904. The petition contains no averments whatever • of fraud ’ or mistake in the execution of the contract, nor is there any averment that there was no consideration or a failure of consideration. The only reason given why the relief sought should be granted is that the consideration was not sufficient. The petition, among other things, recites the fact that in 1907 an action was commenced by plaintiff upon this contract to recover damages- caused by the reconstruction of the right of way of the defendant company and a judgment for $250 was recovered, which judgment was paid by the defendant; that again in 1910 he brought a subsequent and second action for the same reasons contained in the'first action, and in that case both the common pleas and circuit courts denied him relief. Afterwards, in the same year, he brought a third action predicated upon Section 8908, General Code, .but the petition does not inform the court what has become of that action, but it does contain the averment that under the decision and judgment in the second case he will be barred from statutory remedy under Section 8908. Clearly this is no reason for the rescission of the contract, and it is equally clear that after two suits have been brought by the plaintiff upon this contract and recovery was had in one suit and recovery denied him in the second suit, it is too late, for him to ask a rescission of the contract.

The judgment of the circuit court is affirmed.

Judgment affirmed.

Shauck, Johnson, Donahue, Wanamaker and Wilkin, JJ., concur. Nichols, C. J., and Newman, J., not participating.