text:
    Ward et al. v. The Cleveland Railway Company.

      Real property — Uniform allotment restrictions — Superseded by power of eminent domain — Railroad purchases lots — Other lot owners not entitled to injunction, when.

    (No. 14548
    Decided July 2, 1915.)
    Error to the Court of Appeals of Cuyahoga county,

      Messrs. Westenhaver, Boyd & Brooks, for plaintiffs in error.

      Messrs. Squire, Sanders & Dempsey, for defendant in error.
   By the Court.

Plaintiffs in error, owners of certain lots in the Whitehorn Avenue N. E. Allotment in the city of Cleveland, brought an action in the court of common pleas of Cuyahoga county to enjoin the defendant railway company from using its lots in said allotment for street railway purposes and from violating certain restricting covenants in the deeds for the lots, particularly the restriction forbidding the use of the property for any purpose other than residence purposes. The court of common pleas sustained a demurrer to the amended petition upon the ground that the same did not contain facts sufficient to constitute a cause of action, and, plaintiffs not desiring to plead further, judgment was rendered against them. On appeal to the court of appeals the demurrer was again sustained, the amended petition dismissed and judgment rendered in favor of the defendant.

It appears from the amended petition that the defendant in error is a street railway company, organized under the laws of the state of Ohio, owning and operating a system of street railways in the city of Cleveland and its adjacent and contiguous suburbs, and vested with the right of eminent domain. It is the owner by purchase of six lots in the allotment in question, and plaintiffs are asking that the company be enjoined from using the property for railway purposes. The covenants in the different deeds restricting the use of the lots in the allotment to residence purposes are not binding upon a corporation possessing the right of eminent domain. Doan v. Cleveland Short Line Ry. Co., ante, 461. The demurrer to the petition was properly sustained, and the judgment of the court of appeals is therefore affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    Carpenter et al. v. The City of Cincinnati et al.

      Municipal corporations — Streets and alleys — Extension of railway routes — Section 9105, General Code, constitutional — Property owners’ consents necessary — In absence of additional laws or charter — Under Sections 2 and 7, Article XVIII, Constitution, ■1912 — Sections 1 and 26, Article II, Constitution.

    Section 9105, General Code, relating to grants made by municipal councils upon the production of written consents of owners of more than one-half of the feet front abutting on streets or public highways, is not in conflict with Section 1 of Article II nor with any other provision of the present state constitution; and it is, therefore, a valid law, applying to all municipalities in the state, unless nullified by the adoption of additional laws or charter, under the provisions of Sections 2 or 7, Article XVIII of the state Constitution.
    (No. 14932
    Decided July 20, 1915.)
    Error to the Court of Appeals of Hamilton county.
    Facts are stated in opinion.

      Messrs. Dinsmore & Shohl, for plaintiffs in error.

      Mr. Walter M. Schoenle, city solicitor; Mr. Carl M. Jacobs, Jr., assistant city solicitor; Mr. Ge.orge H. Warrington and Mr. Joseph Wilby, for defendants in error.
   Jones, J.

On February 11, 1913, the city council of Cincinnati passed an ordinance, reciting that in its opinion the necessity and importance of the extension of a street railway along Reading road in that city warranted the grant of permission therefor, without the consent of the abutting property owners. Accordingly, under such ordinance, the grant of permission to The Cincinnati Traction Company and The Cincinnati Street Railway Company to extend a railway along said Reading road was made without the production to council of the written consents of the owners of more than one-half of the feet front of the lots and lands abutting on said street.

Plaintiffs in error, as owners of property abutting on said Reading road, brought an action to enjoin the construction of such street railroad, and prayed that the ordinance granting such permission be declared null and void.

The sole question to be determined is whether Section 9105, General Code, is a valid enactment under the present constitution of the state.

The superior court held that the section in question was valid, but the court of appeals held the same to be unconstitutional because it was a delegation of legislative power and therefore in contravention of Section 1 of Article II of the state Constitution.

The power of the council of a municipality to make the grant was authorized by Section 3777, General Code. That power, however, is limited by Section 9105, General Code, which provides as follows:

“No such grant shall be made until there is produced to council, or the commissioners, as the case may be, the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way, along which it is proposed to construct such railway or extension thereof,” etc.

For a half century this and substantially similar sections have found an abiding place in the statutes of Ohio. The claim of the court of appeals is that while these sections have been on numerous occasions before -the supreme court of this state, in each case the constitutionality of the section has been assumed by that court rather than decided, and that it still remains an open question whether these consent statutes are repugnant to that section of the state constitution which prohibits the delegation of legislative power.

We are unable to conceive any delegation of legislative power in this section which- requires the consent of abutting lotowncrs as a prerequisite to municipal action. The abutting lot owner has no potential power in the making of the law. The withholding of his consent is merely a quiescent action upon his part, and in-nowise controls municipal discretion. Section 9105, General Code, supra, is not to be considered as any delegation of legislative power, but rather a limitation upon the power of council which is a prerequisite to its action. Municipal councils have only such powers as are delegated to them by the state, and these powers can be exercised only upon the conditions named by the legislative power. The council has no power to act, under this limitation, until the prerequisite consents are filed. The same sovereign authority that has given to municipalities control of the streets, the power to make occupative grants thereon and 'transferred the title to its highways in trust for public use, has like power to impose conditions and limitations under which such control, grants and the occupancy of its streets and highways may be exercised.

In this class of cases the state has expressly provided that these grants for the occupancy of its highways and streets shall not be made until the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public highway should be produced.

Under the limitation thus imposed upon it by the state, the council has no power to act until the prerequisite condition has been fulfilled. It is, therefore, in no sense a delegation of legislative power, but a lack of power upon the part of the council to act until the fulfillment of that condition. Roberts v. Easton et al., 19 Ohio St., 78; The Mt. Auburn Cable Ry. Co. v. Neare et al., 54 Ohio St., 153.

We recognize the fact that this court has decided that in this class of cases these consents are not property rights, but rights personal to each owner of the abutting lot, and that as such they need not be appropriated. However, the legislature in its wisdom had- adopted the policy of providing that these consents must be secured. As stated by Judge Day in the case of Roberts v. Easton et al., supra, the evident object of these consent statutes was to protect the owners of property from the arbitrary use of the streets on the part of the municipal authorities. The wisdom of this policy lies in the discretion of the legislature, and we are not authorized to disturb it; but by adopting and making it a condition precedent to municipal action by one of its agencies, the state imposed that limitation upon the power of its municipal agency as a prerequisite to its exercise.

The foregoing constitutional feature was the only one urged in argument and decided by the lower courts, although it was suggested by counsel for defendant in error that the section might be repugnant to Section 26 of Article II of the Ohio Constitution, which provided that no act should take effect “upon the approval of any other authority than the general assembly.” But very little stress is laid upon the,application of that section of the constitution, and it is difficult to see how it could apply to these consent statutes, for the reason that if the council had the power to pass the law the same would take effect irrespective of the approval of any other authority. No other constitutional question was made in the case.

At the present term of this court, in the case of Billings et al. v. The Cleveland Ry. Co., post, 478, the maj’ority of this court held this statute unconstitutional under the recent home-rule amendment, for the reason that in that case the city of Cleveland had adopted a charter covering this feature and thus nullified the act; but as the city of Cincinnati had no such charter, and as the home-rule amendment is not self-executing (The State, ex rel. City of Toledo, v. Lynch, Auditor, 88 Ohio St., 71), the Cleveland case has no application to the case at bar. Cincinnati has adopted no charter; nor have additional laws been passed touching this feature, within the purview of Section 2, Article XVIII of the Constitution.

The court of appeals erred in holding Section 9105, General Code, unconstitutional, and its judgment is reversed and that of the superior court of Cincinnati is affirmed.

Judgment of the court of appeals reversed, and that of superior court of Cincinnati affirmed.

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

Donahue and Wanamaker, JJ., dissent.


author: Johnson, J.

text:
    Billings et al. v. The Cleveland Railway Co.

      Municipal corporations — Streets and alleys — Extension of railway routes — Home-rule charter controls, when — Article XVIII, Constitution, igiz — Property owners’ consents — Sections 3777 and 9105, General Code, inapplicable, when.

    1. The granting of permission and the making of a contract to construct and operate a street railway in the streets of a city or village is a matter that may be provided for.in a charter adopted by the municipality under Article XVIII of the .Constitution.
    2. Where the terms of a charter adopted in full compliance with Article XVIII of the Constitution empower the council of the city or village to grant permission for the ■ construction,. extension, maintenance or operation of a public utility and provide that no consent of the owner of property abutting on any highway or public ground shall be required therefor, unless such public utility is of such a character that its construction and operation is an additional burden on the rights of such abutting property owners, the provisions of the General Code requiring such consents do not apply.
    (No. 14919
    Decided July 20, 1915.)

      Error to the Court of Appeals of Cuyahoga county.
    In March, 1915, the council of the city of Cleveland passed an ordinance by the terms of which there was granted to the defendant in error the right to extend its double line of electric street railroad in Euclid avenue from East Twenty-second street to East Fortieth street. Thereupon the plaintiffs in error, who are owners of property abutting on that portion of Euclid avenue, brought a proceeding in the court of common pleas of Cuyahoga county to enjoin the defendant in error from constructing its railroad on that portion of Euclid avenue.
    The petition alleged that the council of the city of Cleveland had never granted any proper or lawful permission whatsoever to the defendant to proceed with the construction and operation of the extension of its road referred to; that a majority of the property owners represented by the foot frontage of the property abutting on that portion of Euclid avenue have not consented to such construction and extension; nor has the consent of any person or corporation owning property abutting on Euclid avenue been obtained and presented to the city council.
    The defendant in error in a second amended answer, which was filed in the court of appeals, where the case had been taken on appeal, admitted substantially all the facts alleged in the petition, and for a second defense alleged that an ordinance of the city cottncil of the city of Cleveland, which was annexed to the answer, granted to the defendant the right to construct the proposed railroad and that the electors of the city of Cleveland, on the 1st day of July, 1913, at an election then held, approved a charter for the city of Cleveland, which became operative on. January 1, 1914, and has been ever since, and now is, the organic law of the city of Cleveland.
    It further set out Section 187 of the charter, which provides that consent of the abutting owners of property shall not be required for the construction, extension, maintenance or operation of any . public utility by original grant or renewal, unless such public utility is of such a character that its construction or operation is an additional burden upon the rights of the property owners in such highways or public grounds.
    It further averred that the construction and operation of said proposed line of railway in Euclid avenue would not constitute an additional burden upon the rights of said abutting- property owners.
    The plaintiffs demurred to the second amended answer of the defendant, which was overruled by the court of appeals, and judgment entered for the defendant. This proceeding is brought to reverse that judgment.
    • Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrezvs; Mr. Edzvard C. Turner/attorney general; Mr. George H. Harris; Mr. Wilbur D. Wilkin and Mr. Paul J. Bickel, for plaintiffs in error.

      Messrs. Squire, Sanders & Dempsey; Mr. H. J. Crawford; Mr. John N. Stockzvell, director of law, and Mr. Arthur F. Young, assistant city solicitor, for defendant in error.
   Johnson, J.

The judgments of the courts below rest upon the proposition that by virtue of Section 187 of the charter of the city of Cleveland, which is set forth in the above statement, the ordinance granting to the defendant in error the right to construct its railway on the street in question is valid, notwithstanding the fact that the consents of a majority of the property owners, as represented by the foot frontage, had not been obtained as required by Sections 3777 and 9105, General Code, which were enacted prior to the adoption of Article XVIII of the Constitution in September, 1912.

It is unnecessary to refer at length to the cases which have considered the provisions of that article of the constitution known as the “Home-Rule Amendment.” They are recent and familiar.

In The State, ex rel. Toledo, v. Lynch, Auditor, 88 Ohio St., 71, it was held that the provisions of Sections 3 and 7 of Article XVIII of the Constitution, which confer upon municipalities authority to exercise all powers of local self-government and to adopt and enforce within their limits such local . police, sanitary and other similar regulations, as are not in conflict with general laws, and to frame and adopt a charter for their government, continue in force the general laws for the government of cities and villages until changed in one of three modes:

1. By the enactment of general laws for their amendment.

2. By additional laws to be ratified by the electors of the municipality to be affected thereby.

3. By the adoption of a charter by the electors of a municipality in the mode pointed out in the article.

The judges who did not concur in the opinion of Shauck, J., who spoke for the court in that case, did not withhold their assent because they felt that the majority were going too far, but, as shown by the opinions they filed in the case, they thought that the majority did not go far enough, in that the judgment was that Section 3 of Article XVIII was not self-executing and that the powers granted were not as extensive as those judges believed the section conferred.

Under the constitution, previous to the amendment in 1912, municipal corporations in their public capacity possessed such powers, and such only, as were expressly granted by statute and such as might be'implied as essential to carry into effect those which were expressly granted. Ravenna v. Pennsylvania Co., 45 Ohio St., 118.

Cities and villages were created by acts of the legislature, which could confer upon them, or withdraw from them, powers at will. This authority was exercised under Article XIII, Section 6, which provides that “the general assembly shall provide for the organization of cities, and incorporated villages, by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power.” As stated by the supreme court of the United States in Mt. Pleasant v. Beckwith, 100 U. S., 514, 524: “Counties, cities, and towns are municipal corporations created by the authority of the legislature, and they derive all their powers from the source of their creation, except where the Constitution of the State otherwise provides.”

The manifest purpose of the amendment in 1912 was to alter this situation and to add to the governmental status of the municipalities. The people made a new distribution of governmental power. The charter of a city which has been adopted in conformity with the provisions of Article XVIII, and which does not disregard the limitations imposed in that article or other provisions of the constitution, finds its validity and its vitality in the constitution itself and not in the enactments of the general assembly. The source of authority and the measure of its extent is the constitution. The powers conferred by such a charter, adopted within the limitations stated, are not affected by the general statutes of the state.

As stated by Shauck, J., in The State, ex rel. Toledo, v. Lynch, Auditor, supra: “It follows that all laws in force when the latter [the new constitution] took effect, and which were .not inconsistent with it, would have remained in force without an express provision to that effect: and all inconsistent laws fell simply because they were inconsistent; in other words, all repugnant laws were repealed by implication.”

Section 7 confers on the municipality authority to adopt a charter “for its government” and “to exercise thereunder all powers of local self-goverm ment.” As to the phrase “all powers of local self-government” it is said in the Lynch case, supra: “They are such powers of government as, in view of their nature and the field of their operation, are local and municipal in character.” And in Fitzgerald et al. v. City of Cleveland, 88 Ohio St., 338, 344, it is said: “It is sufficient to say here that the powers referred to are clearly such as involve the exercise of the functions of government, and they are local in the sense that they relate to the municipal affairs of the particular municipality.”

Any provision in a charter attempting to confer powers upon a municipal government in excess of the powers permitted to be granted by the constitution, or disregarding in any way the limitations imposed by that instrument, would be invalid. But it does not follow from this that a city may not by its charter confer on its government powers which are different from those conferred by general laws upon the municipal governments of the state generally.

It was contemplated by the framers of the amendment to the constitution that the provisions in a charter, adopted by a city, would differ from the general laws of the state, within the limits defined by the constitution. The object of the amendment was to permit such differences and to make them effective.

It must not be overlooked that the municipal government, as well after a charter has been adopted as before, is an arm or agency — a part — of the state. Every instrumentality established by a city or village under a home-rule charter, adopted in accordance with the constitution, rests upon the grant of the state itself, which has delegated to the municipality the capacity to exercise the power. The state has given its sanction to a charter or plan of local self-government when thus adopted. There is no impermm in imperio, except in the sense that by the approval of the state the city exercises part of the sovereign power under the limitations imposed, and may thereby, subject to such limitations, exercise all powers of local self-government. This involves no lack of the harmony that is essential and no loss by the state of its proper authority over the city and its people. The charter becomes the organic law of the municipality so far as such local powers are concerned. But the authority of the state is supreme over the municipality and its citizens as to every matter and every relationship not embraced within the field of local self-government.

A fine illustration of the successful working out of the division and distribution of sovereign governmental powers is furnished by the national and state governments in the American system. The Tenth Amendment to the Constitution of the United States provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.”

The claim of the plaintiffs in this case is that the ownership and control of the streets for the purpose of travel is vested in the legislature as the representative of the people of the state. The contention substantially is that the control of the streets is not a matter of merely local concern, but is of state-wide concern, and, therefore, not included within the power of local self-government. Many authorities are cited in Ohio and from other jurisdictions in support of the proposition that the control and regulation of the use of streets has always been exercised by the state legislature, and that the authority of municipalities to grant easements in the streets to street railway companies has been derived from the legislature. This must, of course, be conceded, because, as above shown, until the adoption of the amendment in 19Í2, cities and villages possessed only such powers as were granted to them by the general assembly.

It is well settled that a body adopting amendments, such as are here involved, will be presumed to have had in mind the legal status of and the course of legislation and existing statutes touching the subjects dealt with.

A consideration of the course of legislation in Ohio under the old constitution seems to clearly disclose that the control of streets has been regarded as a matter chiefly of municipal concern; the control to be exercised under such regulations as the legislature prescribed. It being, as shown, the source of municipal authority. •

It is said in The Hamilton, Glendale & Cincinnati Traction Co. v. Parish, 67 Ohio St., 181, 190: “In municipalities the fee of the streets is in the city or village, in trust however for street purposes. Section 2601, Revised Statutes; S. & C. 1083; Street Railway v. Cumminsville, 14 Ohio St., 523; City of Columbus v. Agler, 44 Ohio St., 485; and Callen v. Electric Light Co., 66 Ohio St., 166.”

Section 3629, General Code, provides that municipalities shall have power “to lay off, establish, plat, grade, open, widen, narrow, straighten, extend, improve, keep in order and repair, light; clean and sprinkle, streets, * * * including any portion of any turnpike * * * surrendered to or condemned by the corporation,” and Section 3714, General Code, provides that the council shall have the care, supervision and control of public highways, streets, etc., within the corporation, and shall cause them to be kept open, in repair, and free from nuisance. Under the General Code, Section 3725 et seq., streets may be vacated by the city and their continued use as streets abandoned.

Many authorities are cited in briefs of counsel for defendants in error in support of the general proposition that the control of streets for public utility purposes is a matter of municipal concern.

In Sunset Telephone & Telegraph Co. v. Pasadena, 161 Cal., 265, the provisions of the California constitution, concerning the powers of local self-government in cities, which are very similar to those in Ohio, were involved. The charter gave to the city the power to grant, franchises for the laying of telephone wires, etc. The term for which any franchise could be granted .was limited to twenty years, and the full control of the use of the streets by the utilities was vested in the city. On the' other hand, the charter of the telephone company from the state gave it the ápparently unrestricted power to erect poles, etc., and to operaté anywhere within the state. The city passed an ordinance providing that it would be unlawful for a telephone or telegraph company to maintain poles or wires without securing a franchise from the city. The company did not secure a franchise, and the proceeding was one to enjoin the removal of its wires. The issue in the case was whether the charter provisions, above mentioned, and the ordinance passed pursuant thereto, related to municipal affairs within the constitutional requirement. In sustaining the contention of the city the court say, at page 281: “It cannot be disputed in the light of the decisions that the state may surrender to any municipality full control of its streets and highways in regard to such matters, and, of course, an appropriate place for an enactment of this character on the part of the state is, under our constitutional provisions, the freeholders’ charter provided for by section 8, Article XI.”

In 4 McQuillen on Municipal Corporations, Section 1620, the same view is taken in a discussion of the right of a public utility to occupy the streets of a municipality.

In St. Louis v. Western Union Tel. Co., 149 U. S., 467, Justice Brewer says:

“Control over the streets resides somewhere. As the legislative power of a State is vested in the legislature, generally that body has the supreme control, and it delegates to municipal corporations such measure thereof as it deems best. The city of St. Louis occupies a unique position. It does not, like most cities, derive its powers by grant from the legislature, but it framed its own charter under express authority from the people of the State, given in the constitution.”

Moreover, with reference to Ohio, the special provisions of Article XVIII itself demonstrate that the framers of that amendment, and the people in adopting it, regarded the matter under consideration here as a municipal áffair of the particular locality.

Section 4 of the “Home Rule Amendment” empowers any municipality to acquire, construct, own, lease and operate within its limits, any public utility the product or service of which is to be supplied to it, and to contract with others for such product or service.

Section 5 provides that any municipality proceeding to acquire, construct, own, lease or operate a public utility, or to contract with any person or company therefor, shall act by ordinance, and further provides for the submission of such ordinance to the electors.

Section 6 ordains that any municipality owning or operating a public utility for the purpose of supplying service or the product thereof to the muncipality or its inhabitants, may also sell and deliver .to'Others any transportation service of such utility under certain specific limitations named in. the section. .

Here ar.e explicit provisions conferring plenary power upon the municipality to deal with the subjectrmatter involved in this proceeding.

.. The. transportation service referred to comprehends and" contemplates the service of street railroads. Of course a street railroad is and .must be constructed in the streets. The title which thé constitutional convention gave to this article — Municipal Corporations — and the inclusion of the provisions above set out carry the necessary implication that the powers therein conferred on the municipal governments are municipal in character and relate to the local affairs of 'the particular municipality. The authority to deal with the subject is express. It is well settled that the acceptance of an ordinance granting permission to use the streets "for the purposes of public utilities is a contract. The Cincinnati & Springfield Ry. Co. v. Village of Carthage, 36 Ohio St., 631, 634; City of Columbus v. Street Rd. Co., 45 Ohio St., 98; City of Cleveland v. Cleveland City Ry. Co., 194 U. S., 517-534.

As to the contention of the plaintiffs that the city could not be vested with the power to grant franchises, which it is insisted resides exclusively in the state, it must be noted that the scope and meaning of the term franchises must be determined by its application. It is manifest that it has a dual meaning. There is wide difference between a franchise which is incident to and inheres in the right of the corporation to exist as a corporation and the grant of a right to occupy a public street and to construct therein a public utility. The creation of the former, the artificial person, must be done by the state itself. But this is not true of the latter. As stated in Sims v. Street Rd. Co., 37 Ohio St., 556, the power to make the extension is conferred by statutes under which the company is incorporated and is acting. The ordinance granting permission to extend the track is not an act conferring corporate powers conferred by general law. Similar views are approved in The State, ex rel., v. Topeka Water Co., 61 Kans., 547, and People, ex rel., v. State Board of Tax Commrs., 174 N. Y., 417.

In considering the statute which requires the filing of consents of property owners prior.to the granting of the permission to erect a railroad in the street, it must be noted that there is no property right involved.

In The Hamilton, Glendale & Cincinnati Traction Co. v. Parish, 67 Ohio St., 181, it is held that “The consents of owners of lots abutting on a street, to the construction and operation of a street railroad on such street, 'are not property rights that can be appropriated under the power of eminent domain.”

Such consents are not property rights, but rights in their nature personal to each owner of an abutting lot.

Such personal rights were bestowed by the general assembly on owners of abutting lots as a check upon the power of the municipality. The right referred to not being a property right (the taking of which would violate the guaranties of the constitution, unless done by due process of law and after full compensation), it follows that the statute conferring it, being a matter of local concern, when inconsistent with the provisions of the charter passed under favor of the constitution, would fall simply because it was inconsistent, as' stated in the Lynch case.

It is well settled that the use of a highway for the purpose of a street railway is not an additional burden on the rights of abutting property owners nor an interference in any manner with the primary use of the street. The Hamilton, Glendale & Cincinnati Trac. Co. v. Parish, 67 Ohio St., 181, 190; The Cincinnati & Spring Grove Ave. St. Ry. v. Village of Cumminsville, 14 Ohio St., 523; Railway Co. v. Telegraph Assn., 48 Ohio St., 390, 427.

In The Cincinnati & Spring Grove Ave. St. Ry. Co. v. Village of Cumminsville, supra, it is said: “The use of such a highway for the purposes of a street railroad, involves the application of new appliances and modes of travel, rather than of any new principle.”

The plaintiff must necessarily concede that the location of the street railroad on the avenue in question in this case would not be an additional burden upon the rights of abutting property owners, and the concession must be made in all cases where Sections 3777 and 9105, General Code, apply, because if the railway should constitute an additional burden on the rights of abutting property owners, or an interference in any way with their property rights, it would be hard to conceive how the constitutionality of the sections named could be sustained. It would amount to the taking of such property rights of those who refused to give consent, without due process of law and without compensation. The majority of the abutting, property owners on the street would by their act of consent destroy their neighbors’ rights.

The contention of the defendant in error that Sections 3777 and 9105, General Code, known as the consents statutes, are unconstitutional, was considered in the case of Carpenter et al. v. The City of Cincinnati, decided at this term, ante, 473, in which the constitutionality of those sections was upheld.

For the reasons we have above given, the judgment will be affirmed.

Judgment affirmed.

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


author: By the Court. Jones, J.,

text:
    The City of Cleveland v. Luttner. The City of Cleveland v. Yoos. The City of Cleveland v. Lange. The City of Cleveland v. Cottrill. The City of Cleveland v. Esper.

      Office and officers — Policemen wrongfully discharged — But reinstated by court decree — Entitled to salaries, less earnings, when — Notwithstanding substitute policemen employed, — Section 16, Article I, Constitution — Of redress in courts.

    (Nos. 14681 to 14685
    Decided May 25, 1915.)
    Error to the Court of Appeals of Cuyahoga county.

      Mr. John N. Stockwell, director of law, for plaintiff in error.

      Mr. Frank F. Gentsch; Mr. Charles Savage and Mr. M. B. Excell, for defendants in error.
   By the Court.

The foregoing cases involve the same questions, and therefore were submitted and considered together.

The defendants in error were formerly policemen of the city of Cleveland. They were ousted from office. Action was subsequently brought by them, whereby they were, restored to their former positions as police officers. Thereafter demand was made upon the city of Cleveland for their salaries as police officers for the time during which they had been wrongfully ousted from office. The common pleas court found that, owing to the fact that other policemen had been appointed in their stead through the interval and had drawn substantially the same salary, the police officers so wrongfully ousted could not recover.

The case was appealed to the court of appeals, which held a contrary doctrine, to-wit, that they could recover the full salary for the interval in question, and that such salary was not subject to be reduced by any earnings of said policemen during said interval. To the judgment of the court of appeals error is now prosecuted to this court.

A public officer is a public servant, whether he be a policeman of a municipality or the president of the United States. His candidacy for appointment or election, his commission, his oath, in connection with the law under which he serves, and the emoluments of his office constitute the contract between him and the public he serves.

The constitution of Ohio guarantees to everyone redress for any injury done him in his land, goods, person, reputation, etc., and assures him remedy by due course of law and that justice shall be administered without denial or delay. If the public servant, a policeman in this case, be wrongfully dismissed from public office, he should have the same remedy for such wrong as a private servant for any wrong done him in his employment. The theory in both cases should be to make the wronged party whole; that is, to reimburse him for his loss. The mere fact that the wronging party employs or ap: points some one else during the period of wrongful ouster should not excuse him for the full measure of his duty and liability.

The defendants in error in the foregoing cases should, therefore, recover their salaries, less the respective amounts they have otherwise earned, in the exercise of due diligence, during the periods they were wrongfully ousted. Decrees accordingly.

Judgments of the court of appeals modified and affirmed as modified. ■

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

Donahue, J., for affirmance, without modification.

Jones, J.,

dissenting. The question involved in this case is whether a discharged employe, who has been afterwards reinstated, can recover his salary from the city when he performed no service for the city during the time of his discharge, and where the city had employed another to take the place of the discharged employe and paid his successor the salary for such services. Stated in another form, can the city be compelled to pay twice for the same services under the circumstances related ? .

'The rule in this behalf is stated by Judge Dillon in his-Municipal Corporations (5 ed.), volume 1, section 429, as follows:

“For reasons of public policy, and recognizing payment to a de facto officer while he is holding the office and discharging its duties as a defense to an action brought by the de jure officer to recover the same salary, it is held in many jurisdictions that an officer or employe who has been * * * wrongfully excluded from office, cannot recover against the city for salary during the period when his office was filled and his salary paid to another appointee.”

If any criticism could be made of the above text it is in the fact that the rule of law therein stated has in fact been upheld by practically every jurisdiction in the United States. That a de jure officer cannot recover against the city when the city has employed and paid a de facto employe has been held without reserve in all of the following states: Illinois, Connecticut, Iowa, Kansas, Kentucky, New York, Nebraska, New Hampshire, Missouri, Michigan, Washington, New Jersey, Colorado, Delaware, Oregon, South Dakota, Arizona, Louisiana, Oklahoma and Idaho. Bullis v. Chicago, 235 Ill., 472; Coughlin v. McElroy, 74 Conn., 397; Brown v. Tama County, 122 Ia., 745; Commrs. of Saline County v. Anderson, 20 Kans., 298; Walters v. Paducah, (Ky.) 123 S. W. Rep., 287; Dolan v. Mayor, 68 N. Y., 274; State, ex rel., v. Milne, 36 Neb., 301; Shannon v. Portsmouth, 54 N. H., 183; Westberg v. Kansas City, 64 Mo., 493; Scott v. Crump, 106 Mich., 288; Samuels v. Town of Harrington, 43 Wash., 603; McDonald v. Newark, 58 N. J. Law, 12; Commrs. of El Paso County v. Rohde, 41 Colo., 258; Lee v. Wilmington, 1 Marv. (15 Del.), 65; Selby v. Portland, 14 Ore., 243; Fuller v. Roberts County, 9 S. Dak., 216; Mitchel v. New Orleans, 32 La. An., 1094; Shaw v. County of Pima, 2 Ariz., 399; Gorman v. Commrs. of Boise County, 1 Idaho, 655; Stearns, Mayor, v. Sims, 24 Okla., 623. Included in this list may be added our own state, which adhered to that rule in the case of Steubenville v. Culp, 38 Ohio St., 18, in the following syllabus:

“A police officer, suspended from office, by the mayor of a city, under the authority granted by sections 121 and 211 of the municipal code, is not entitled to wages during the period of such suspension, notwithstanding the council afterward declared the cause of suspension insufficient.”

And in support of the opinion in that case the learned judge cited five cases. An examination of those cases supports the emphatic rule announced in the text above, that where the de facto employe has performed the services and received the emoluments of office, the discharged de jure officer cannot recover from the public for the time that he was out of office. The contrary view has been held in a minority of states only, those states taking the view, as a rule, that public office is in the nature of a private contract and safeguarded as such by the constitution. Of the five states thus holding, California, by a specific statute, nullified the action of its judiciary and passed a law providing in cases of similar character that double compensation should not be paid.

The court of appeals followed the minority rule, lightly dismissing the decisions, the judge delivering the opinion referring to them as “the roll call of states,” and reversed the trial court, who had made an exhaustive review of the decisions supporting the rule in the text. The court of appeals cited no authority in its support.

I am not wedded to judicial precedents that have not kept pace with our ever-changing economic life or which are incompatible with our modern system of government. If precedents are based on a weak and false logic, if they cannot be applied to our present system of government, as an equitable and just rule of action in human affairs, then they should be discarded and a new rule adopted. But judicial precedents should not be lightly disregarded, for they represent thoughtful deliberations of just and distinguished jurists whose wisdom has aided in upbuilding the social and governmental systems we now enjoy.

The rule announced in the majority opinion in this case is not only in conflict with the established law of practically every state in the Union, including our own, but is based on a new conception of vested rights in a public officer to the office — that by reason of its occupancy, by appointment or election, there subsists between such occupant and the public a contractual relation which is protected under our constitutional guarantee as an invasion of private contract. This was the theory upon which the minority of states based their decisions, that the public might be required to pay a second time for services of an official wrongfully dismissed, although the services were performed by another appointed in his stead during such dismissal.

It is difficult to perceive what, public policy requires the payment by the public a second time for the same services. ' The' municipal officer whose warrant is required should not be compelled to withhold the compensation from the de facto officer for fear that at some time in the future the title to the office should be questioned. The color of authority under which the de facto officer acts is all that should be needed. Public policy requires that the duties of the officers and employes should be carried on in the interest of the public. In this instance, in the event of suspension or discharge of an employe, the city, of necessity, together with its officers, must see to it that the police and the fire departments, for instance, should be manned. If the discharged employe, as a de jure claimant, should be permitted to sue the city for .services which he had not performed, it would place the public service in inevitable embarrassment. Must the state, city or any other subdivision of the state take upon itself the risk of paying double compensation upon the adventitious circumstance that the discharged employe may thereafter hold it liable for a double compensation and for services which he has not performed? Are they bound to anticipate what the decision of the court may be in cases of that character or in that multitudinous class oi cases where contests for office arise and are carried through to the courts of last resort? The municipality, in this case, should not be held responsible for an official mistake made by one of its officers in recognizing the wrong claimant. Indeed, if this rule should be followed an employe might invite suspension in order that upon reinstatement thereafter he might recover for the entire time wherr the services were performed by another, subject, only to the limitation for deduction of the reasonable amount that he might have earned meanwhile. It would not be difficult to foresee contingencies where the de pire claimant and the de facto incumbent would each be willing to permit his suit to lag, if both, on its final termination, could draw compensation from the public funds.

As it happens, in our own court there is at the present time a contest between two candidates for common pleas judge, where the inducted judge has for a long period of time received his salary, partly from the state and partly from the county. Is it possible that we shall place the stamp of approval upon a rule which would require that in the event of the induction of his rival claimant, after a -long period of contest, the claimant should again be paid by the state and county for services performed by the contestee ? An effort of that kind was made in a contest case in County Commissioners v. Rohde, 41 Colo., 258.

Under our system of government public policy does not support the theory underlying the majority opinion that an official status, by election or appointment, constitutes, together with the emoluments of his office, “a contract between him and the public he serves,” nor that the constitution of Ohio guarantees him redress as in cases of private contract. It has been held in Ohio and elsewhere that the salary attached to the office is but an incident thereto and that no contractual relation exists by reason of an election or appointment, and that the same is not safeguarded by any provisions of our constitution.

In 1841, in the case of State v. McCollister, 11 Ohio, 46, 50, a dictum did creep into .the opinion that “When a man becomes an incumbent of an office, he has a vested right in that office; and all such rights are secured by the constitution.”

This dictum has been repeatedly repudiated by the courts .of this state. In the case of Knoup v. The Piqua Bank, 1 Ohio St., 603, 616, the learned judge, referring to the former dictum, said:

“He [an officer] has no property, or individual right in it. He is but a trustee for the public; and whenever the public interest requires that the office should be abolished, or the duties of the office become unnecessary, the incumbent cannot object to the abolition of the office.”

In the case of The State, ex rel., v. Hawkins, 44 Ohio St., 98, 109, which involved the action of the governor in removing the police commissioners of the city of Cincinnati, Judge Minshall. said:

“The incumbent of an office has not, under our system of government, any property in it. His right to exercise it is not based upon any contract or grant. It is conferred on him as a public trust to be exercised for the benefit of the public.”

This policy was approved and followed in the case of Mason v. The State, ex rel., 58 Ohio St., 30, 55, and by the judge delivering the opinion in the later case of The State, ex rel., v. Egry, 79 Ohio St., 391, 413, the judge citing the authority of Taylor and Marshall v. Beckham, 178 U. S., 548, in its support. The latter was a case wherein the Taylor and Goebel election contest was involved in the state of Kentucky. Taylor had been given the commission as governor by the state election commissioners. Upon a contest before the legislature Taylor was ousted and Goebel inducted. In an endeavor to reach the United States court upon the jurisdictional question whether there was a deprivation of property or vested rights in the election to the office of governor, the chief justice, at page 577, said:

“The decisions are numerous to the. effect that public offices are mere agencies or trusts, and not property as such. Nor are the salary and emoluments property, secured by contract, but compensation for services actually rendered, * * * In short, generally speaking, the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right.”

The case of Westberg v. City of Kansas, 64 Mo., 493, and relied upon as authority in the Ohio case of Steubenville v. Culp, supra, is very similar to the case at bar. There a policeman discharged by the mayor attempted to secure his salary ad interim by a suit against the city, upon a theory that he had a vested right in his office. The supreme court of Missouri decided against such vested right.

That salary is but an incident to the office, and that neither the same nor his appointment or election thereto is contractual, is generally held by courts of this country.

Again, we must be consistent. If election or appointment constitute a contractual engagement, then the obligations and remedies must be held to be correlative and mutual. If the city could not discharge without violating a contract obligation, neither could the official or employe resign his office or employment without incurring a similar liability. And yet no one will contend that either official or employe may not resign at pleasure, and this he may do, irrespective of an acceptance of such resignation on the part of the municipality. Reiter v. The State, ex rel., 51 Ohio St., 74, 81; Ratterman v. State, 44 Ohio St., 644.

It is a little remarkable that in placing a new rule of decision upon the laws of this state, the case of Steubenville v. Culp, supra, was neither overruled nor distinguished. I have been constrained to announce this dissenting opinion because of the fact that as a member of the Fourth Circuit Court of this state we had repeatedly adhered to the rule in Steubenville v. Culp, supra, as had other circuits as well, including that of the First Circuit when it announced a similar decision in the case of The State, ex rel., v. Eshelby, 2 C. C, 468.

It may be said that a wrong has been inflicted upon an innocent de jure claimant, denying him the redress sought, but the individual interest must submit to the greater interest of the public. That the claimant is not wholly remediless is announced in the cases cited by the text in 29 Cyc., 1393-4, which permits the injured party to bring an action against his successor if he has not slept meanwhile upon his legal rights.

Newman, J., concurs in- the dissenting opinion.


text:
    The City of Wooster v. Evans.

      Municipal ordinance — License fee — Transient dealers — Sections 3673 and 3676, General Code.

    (No. 14615
    Decided April 27, 1915.)
    Error to the Court of Appeals of Wayne county.

      Mr. E. W. Nezvkirk, city solicitor, and Mr. Benton G. Hay, for plaintiff in error.

      Messrs. Rice & Souers, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same is. hereby, affirmed, for the reason that this court holds, on the authority of Tea Co. v. Tippecanoe, 85 Ohio St., 120, that in view of the guaranties of the Bill of Rights, Sections 3673 and 3676 of the General Code cannot be interpreted to authorize a license fee on transient dealers, of the character described in the affidavit in this case, and making such offenses as the defendant in error was charged with in that affidavit punishable.

Judgment affirmed.

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


text:
    Hoffman et al. v. Staley et al.

      Jurisdiction — Supreme court — Constitutional questions not raised in court of appeals.

    (No. 14456
    Decided May 4, 1915.)
    Error to the Court of Appeals of Hamilton county.

      Messrs. Galvin & Bauer; Messrs. Spangenberg & Spangenberg and Mr. Joseph W. O’Hara, for plaintiffs in error.

      Messrs. Sayler & Sayler; Messrs. Peck, Shaffer & Peck and Messrs. Dolle, Taylor & O’Donnell, for defendants in error.
   Motion to dismiss sustained. The constitutional question claimed to be involved in the case not having been submitted to or decided by the court of appeals. Ansbro v. United States, 159 U. S., 695; Cornell v. Green, 163 U. S., 75, and Arkansas v. Schlierholz, 179 U. S., 599, approved and followed. Bennett v. Mo. Pac. Ry. Co., 105 Mo., 642, 645, and Hardin v. City of Carthage, 171 Mo., 442, approved.


text:
    The State, ex rel. Hile, a Taxpayer, v. Baker et al.

      Municipal corporations — Sinking fund trustees — Home-rule charter provisions control, when.

    (No. 14791
    Decided July 2, 1915.)
    In Mandamus.

      Mr. George D. Hile, P. P., and Messrs. Booth, Keating, Peters & Pomerene, for relator.

      Mr. John N. Stockwell, director of law, and Mr. Joseph C. Hostetler, Mr. J. P. Mooney, Mr. Arthur F. Young and Mr. John F. Wilson, assistant city-solicitors, for respondents.
   Demurrer to petition sustained on authority of The State, ex rel. Lentz et al., v. Edwards et al., 90 Ohio St., 305.

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

Donaitue, Newman and Jones, JJ.,' concur in the judgment, but distinguish the case from the authority cited.


text:
    The District Board of Assessors et al. v. The State, ex rel. Morgan.

      Supreme court

    Moot questions not determined.

    (No. 14708
    Decided July 20, 1915.)
    Error to Court of Appeals of Cuyahoga county.

      Mr. Timothy S. Hogan, attorney general, and Mr. Robert M. Morgan, for plaintiffs in error.

      Messrs. Dawley, Ewing, Counts & Terrell; Mr. Cyrus Locher, prosecuting attorney, and Mr. Frederick Green, assistant prosecuting attorney, for defendant in error.
   Petition in error dismissed on authority of Minef v. Witt, 82 Ohio St., 237.

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


text:
    No. 14339.
    The Adena Railroad Co. et al. v. The Public Service Commission of Ohio.
    Decided March 16, 1915.
    Error to Court of Appeals of Franklin county.

      Messrs. Henderson, Livesay & Burr; Messrs. Squire, Sanders & Dempsey and Mr. Robert F. Denison, for plaintiffs in error.

      Mr. Timothy S. Hogan and Mr. Edward C. Turner, attorneys general; Mr. Joseph McGhee; Mr. George Thornburg; Mr. Herbert W. Mitchell; Mr. Chas. C. Marshall and Mr. Lawrence K. Langdon, for defendant in error.
    Judgment of court of appeals vacated and petition in error dismissed. See journal entry.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, vacated and petition in error dismissed for the reason that the court of appeals having obtained jurisdiction of the cause by appeal, and the case having been submitted and determined by said court de novo said court did not have jurisdiction of the proceedings in error in the same cause.

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


text:
    No. 14349.
    The Garfield Savings Bank Co. v. The Globe Oil Co.
    Decided March 16, 1915.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. Ford, Snyder & Tilden, for plaintiff in error.

      Messrs. Tolies, Hogsett, Ginn & Morley and Mr. E. J. Blandin, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14396.
    Alkire et al., Partners, v. Gage.
    Decided March 16, 1915.
    Error to Court of Appeals of Delaware county.

      Messrs. Marriott, Freshzvater & Wickham, for plaintiffs in error.

      Mr. Chas. S, Druggan and Mr. Harry W. Crist, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14402.
    The City of Cincinnati v. The Baltimore & Ohio Southwestern Rd. Co. et al.
    Decided March 16, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. 'Alfred Bettman and Mr. Walter M. Schoenle, city solicitors; Mr. Coleman Avery and Mr. Constant Southzvorth, assistant city solicitors, for plaintiff in error.

      Messrs. Harmon, Colston, Goldsmith & Hoadly and Mr. Edward Barton, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Newman, Jones and Matthias, JJ., concur. Wan am aker, J., dissents.


text:
    No. 14410.
    Price v. The Ohio Electric Railway Co.
    Decided March 16, 1915.
    Error to Court of Appeals of Van Wert county.

      Mr. Thomas J. Trippy and Messrs. Dailey & Hoke, for plaintiff in error.

      Mr. H. W. Blachly and Messrs. Cable & Cable, for defendant in error.
   Judgment of court of appeals reversed and that of common pleas affirmed.

Nichols, C. J., Johnson, Donahue and Wan am aker, JJ., concur. Newman and Jones, JJ., dissent. Matthias, J., not participating.


text:
    No. 14420.
    Policemen's Benevolent Association of Cincinnati et al. v. Johnson.
    Decided March 16, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Geo. H. Kattenhorn and Mr. Jos. W. Conroy, for plaintiffs in error.

      Messrs. Johnson & Levy, for defendant in error.
   Judgment of court of appeals reversed and that of common pleas affirmed.

Nici-iols, .C. J., Johnson, Donahue, Wan am aker, Newman, Jones and Matthias, JJ., concur.


text:
    No. 14386.
    Hauck v. Mooney.
    Decided March 23, 1915.
    Error to Court of Appeals of Hamilton county.

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

      Mr. Sanford Brown and Mr. Otis H. Fisk, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14415.
    Webb v. West, Receiver.
    Decided March 23, 1915.
    Error to^ Court of Appeals of Clark county.

      Mr. Harley E. Burns, for plaintiff in error.

      Mr. Harry F. West, for defendant in error.

   Judgment affirmed.

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


text:
    No. 14429.
    Eberhardt v. The Board of County Commissioners of Hamilton County.
    Decided March 23, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Joseph W. O’Hara; Mr. Gideon C. Wilson and Mr. Joseph Wilby, for plaintiff in error.

      Mr. Thomas L. Pogue, prosecuting attorney; Mr. John V. Campbell; Mr. Carl M. Jacobs and Mr. Chas. A. Groom, assistant prosecuting attorneys, and Messrs. Ireton & Schoenle, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14430.
    The Columbus Terminal Warehouse Co. v. McGrath.
    Decided March 23, 1915.
    Error to Court of Appeals of Franklin county.

      Messrs. King & Ramsey; Messrs. Addison, Clark & Harvey and Mr. George H. Jones, for plaintiff in error.

      Messrs. Webber, McCoy & Jones, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14437.
    The United States Express Co. v. Wilson.
    Decided March 23, 1915.
    Error to Court of Appeals of Knox county.

      Messrs. 'McBride & Wolfe, for plaintiff in error.

      Mr. L. C. .Stillwell, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donai-iue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    No. 14441.
    The Cincinnati, Hamilton & Dayton Ry. Co. v. The Board of County Commissioners of Hamilton County.
    Decided March 23, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Morison R. Waite and Mr. John Randolph Schindel, for plaintiff in error.

      Mr. Thomas L. Pogue, prosecuting attorney; Mr. John V. Campbell and Mr. Carl M. Jacobs, Jr., assistant prosecuting attorneys, for defendant in error.
    Judgment reversed. See journal entry.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed:

And the court coming now to render the judgment, that the court of appeals should have rendered, and it appearing that the abutments described in plaintiff’s petition, were constructed and maintained on the right of way of The Hamilton, Springfield & Carthage Turnpike Company,, at a point other than where the turnpike of said company was constructed over and upon an existing public highway of the state, and that the same was constructed more than twenty-one years before the bringing of this action, and more than .twenty-one years before the county of Hamilton acquired this turnpike from its original owners, The Hamilton, Springfield & Carthage Turnpike Company, and that, therefore, this action is barred by the statutes of limitation.

It is, therefore, considered, and adjudged by this court, that the judgment of the common pleas court of Hamilton county be and the same is hereby reversed, and the petition of the plaintiff dismissed.

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


text:
    No. 14451.
    Warren Brothers Co. v. City of Cincinnati.
    Decided March 23, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Louis B. Sawyer and Mr. Wm. A. Roudebush, for plaintiff in error.

      Mr. Alfred Bettman and Mr. Walter M. Schoenle, city solicitors; Mr. Coleman Avery and Mr. Constant Southzvorth, assistant city solicitors, for defendant in error.
    Judgment of court of appeals reversed and that of common pleas affirmed.
   Journal entry: It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed.

And this court coming now to render the judgment that the court of appeals should have' rendered, and it appearing that the city unreasonably delayed the payment of the money due the plaintiffs in error, and that at the time the principal sum was paid, it was mutually understood and agreed, and expressly stated in the bond given by the contractors to the city, that the right of the contractors to demand interest by way of damages for the withholding of said payment, should not be prejudiced by accepting payment of the principal sum, and it further appearing, that the common pleas court allowed the city substantially one year in which to approve and accept, or reject the work of the contractors, for which time it allowed the contractors no interest on the balance of the unpaid contract price.

It is therefore, ordered, adjudged and decreed by this court, that the judgment of the common pleas court, be, and the same is, hereby affirmed. — Reporter.

Nicitols, C. J., Johnson, Donai-iue and Jones, JJ., concur.


text:
    No. 14455.
    Alkire et al. v. Schryver, Executor.
    Decided March 23, 1915.
    Error to' Court of Appeals of Madison county.

      Messrs. Earnhart & Bates, for plaintiffs in error.

      Mr. Richard H. McCloud and Mr. John A. Lincoln, for defendant in error.
    Judgment reversed. See journal entry.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed; for the reason that it appears from the allegations of the answer and the admissions of the reply thereto that the said A. E. Alkire did not, and could not, contest said will and codicils. The entry, set forth in the-answer, which was made by the court in the proceeding to contest .the will of William Heath, deceased, adjudicated that fact, and, therefore, the said A. E. Alkire did hot go to law to break the said will within the meaning of the 8th Item thereof. And coming now to render the judgment which the court of appeals should have rendered, it is hereby ordered and adjudged that the judgment of the court of common pleas be, and the same is hereby, reversed, and this cause is remanded to the court of common pleas for further proceedings according to law.

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


text:
    No. 14400.
    Dubuque Fire & Marine Insurance Co. v. The Central Trust & Safe Deposit Co.
    Decided March 30, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. J. L. Kohl, for plaintiff in error.

      Messrs. DeCamp & Sntphin, for defendant in error.
   Judgment affirmed on authority of Farmers National Bank v. Delaware Ins. Co., 83 Ohio St., 309.

Nici-iols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    No. 14435.
    Case v. McBride et al.
    Decided March 30, 1915.
    Error to Court of Appeals of Richland county.

      Mr. W. H. Gifford, for plaintiff in error.

      Mr. C. H. Workman; Mr. N. M. Wolfe

    and Mr. John F. Kramer, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14445.
    Spitzer et al. v. Irvine.
    Decided March 30, 1915.
    Error to Court of Appeals of Knox county.

      Messrs. Owen & Carr, for plaintiffs in error.

      Mr. J. B. Graham and Mr. W. A. Hosack, for defendant in error.

   Judgment affirmed.

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


text:
    No. 14474.
    Pennington v. The Fourth National Bank of Cincinnati.
    Decided March 30, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Mallon & V or denb erg, for plaintiff in error.

      Mr. W. S. Little, for defendant in error.
   Judgment affirmed on authority of Benner v. Benner, 63 Ohio St., 220, and The Cleveland & Buffalo Transit Co. v. Beeman, 81 Ohio St., 509.

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


text:
    No. 14478.
    Balinger v. Shaner et al.
    Decided March 30, 1915.
    Error to Court of Appeals of Muskingum county.

      Mr. Harry.C. Shepherd, for plaintiff in error.

      Mr. W. J. Massey and Mr. Eugene F. O’Neal, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14490.
    Gerlach v. Eckhart et al.
    Decided March 30, 1915.
    Error to Court of Appeals of Scioto county.

      Messrs. Milner, Miller & Searl, for plaintiff in error.

      Mr. 'Harry Ball and Mr. Julius L. Anderson, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker and Matthias, JJ., concur. Newman and Jones, JJ., not participating. ■


text:
    No. 14299.
    Walcutt v. Huling et al.
    Decided April 6, 1915.
    Error to Court of Appeals of Franklin county.

      Mr. C. M. Addison, for plaintiff in error.

      Mr. J. E. Todd; Mr. C. P. Outhwaite; Mr. Jos. H. Dyer; Mr. Stuart R. Bolin and Mr. Geo. D. Jones, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14481.
    The Northwestern National Insurance Co. v. Little.
    Decided April 6, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. J. L. Kohl, for plaintiff in error.

      Messrs. Bruck, Phillips & Spilker, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14494.
    Miller v. The Germanic Dry Goods Co.
    Decided April 6, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Charles W. Baker, for plaintiff in error.

      Messrs. Kramer &

      Bettman and Messrs. Healy, Ferris & McAvoy, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14513.
    The Ohio Electric Railway Co. v. Sprowl.
    Decided April 6, 1915.
    Error to Court of Appeals of Van Wert county.

      Mr. H. W. Blackly and Messrs. Cable & Cable, for plaintiff in error.

      Mr. H. L. Conn, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Newman and Jones, JJ., concur. Matthias, J., not participating'.


text:
    No. 14520.
    Sheely et al. v. Sheely et al.
    Decided April 6, 1915.
    Error to Court of Appeals of Richland county.

      Messrs. Skiles, Green & Skites and Messrs. Long & Marriott, .for plaintiffs in error.

      Messrs. Mabee & Anderson, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14522.
    Emerson v. Rehard.
    Decided April 6, 1915.
    Error to Court of Appeals of Coshocton county.

      Mr. E. E. Lindsay and Mr. W. S. Merrell, - for plaintiff in error.

      Mr. Thos. E. Duncan; Mr. B. F. Voorhees and Mr. F. E. Pomerene, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Newman, Jones and Matthias, JJ., concur. Wanamaker, J., not participating....


text:
    No. 14535.
    Giffin, Admr., et al. v. Snyder, Admx., et al.
    Decided April 6, 1915.
    Error to Court of Appeals of Knox county.

      Messrs. H. H. & R. M. Greer and Mr. F. E. Pomerene, for plaintiffs in error.

      Mr. Harry W. Koons, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14147.
    Coen, Admr., v. The Travelers Insurance Co.
    Decided April 20, 1915.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. Higley & Maurer, for plaintiff in error.

      Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews, for defendant in error.
    Judgment reversed. See journal entry.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed; and coming now to render the judgment that the court of appeals should have rendered, this court finds that the court of common pleas erred in sustaining the motion of the defendant below to direct the jury to return a verdict in its favor at the close of the plaintiff’s evidence.

It is further ordered and adjudged that the judgment of the court of common pleas be, and the same is hereby, reversed, and this cause is remanded to the court of common pleas for further proceedings according to law.

Nichols, C. J., Johnson, Donahue and Wanamaker, JJ., concur. Newman and Matthias, JJ., dissent. Jones, J., not participating.


text:
    No. 14524.
    Davis v. Davis.
    Decided April 20, 1915.
    Error to Court of Appeals of Lucas county.

      Mr. John Schlatter and Mr. Pierce J. Phelan, for plaintiff in error.

      Mr. W. T. S. O’Hara and Mr. Orin C. Clement, for defendant in error.
   Judgment affirmed.

Nici-iols, C. J., Johnson, Wanamaker and Matthias, JJ., concur. Donahue, Newman and Jones, JJ., dissent.


text:
    No. 14545.
    The Toledo & Ohio Central Ry. Co. v. Biettner.
    Decided April 20, 1915.
    Error to Court of Appeals of Crawford county.

      Mr. Frank S. Leivis and Messrs. Finley & Gallinger, for plaintiff in error.

      Messrs. Leuthold & McCarron, for defendant in error.
   Judgment affirmed.

Nici-iols, C. J., Johnson, Donahue, Newman, Jones and Matthias, JJ., concur.


text:
    No. 14584.
    Coen, Admr., v. The National Masonic Provident Association of Mansfield, Ohio.
    Decided April 20, 1915.
    Error to Court of Appeals of Richland county.

      Messrs. Higley & Maurer and Mr. William McE. Weldon, for plaintiff in error.

      Messrs. McBride & Wolfe, for defendant in error.
   Judgment of the court of appeals reversed and that of the common pleas affirmed.

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


text:
    No. 14585.
    The Stark Electric Rd. Co. v. Biery, Admr.
    Decided April 20, 1915.
    Error to Court of Appeals of Stark county.

      Messrs. Hart & Koehler, for plaintiff in error.

      Mr. Robert H. Dawson and Mr. Luther Day, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14606.
    Nicol v. Brubaker et al.
    Decided April 20, 1915.
    Error to Court of Appeals of Ashland county.

      Mr. W. K. Stanley and Mr. Frank Taggart, for plaintiff in error.

      Mr. W. S. Kerr and Mr. George A. Nicol, for defendants in error.
   Judgment affirmed.

Nici-iols, C. J., Johnson, Wanamaker, Newman and Jones, JJ., concur.


text:
    No. 14607.
    The Cincinnati & Eastern Electric Ry. Co. v. Ritty.
    Decided April 20, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Dinsmore & Shohl and Mr. Chas. Mi Leslie, for plaintiff in error.

      Mr. Morison R. Waite and Mr. John R. Schindel, for defendant in error.
   Judgment affirmed.

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


text:
    No. 13516.
    The Union Central Life Insurance Co. v. Bell.
    Decided April 27, 1915.
    Error to Circuit Court of Cuyahoga county.

      Mr. Lawrence Maxwell; Mr. Robert Ramsey and Mr. James R. Garfield, for plaintiff in error.

      Mr, Alexander

      H. Martin; Mr. William Howell and Mr. Welles K. Stanley, for defendant in error.
    On rehearing.
    Judgment affirmed. See journal entry.
   The judges of the court are equally divided in opinion as to the merits of this case (one of the judges not participating) and are unable for that reason -to agree upon a judgment, and the entry of this fact constituting an affirmance of the judgment of the circuit court, it is ordered that defendant in error recover from plaintiff in error his costs herein expended.

Wanamaker, Jones and Matthias, JJ., concur. Nichols, C. J., not participating.


text:
    No. 14554.
    Spear & Company v. Fulton.
    Decided April 27, 1915.
    Error to Court of Appeals of Flamilton county.

      Messrs. Philip & S. C. Roettinger and Messrs. Johnson & Levy, for plaintiff in error.

      Mr. Louis P. Pink and Mr. H. C. Bolsinger, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Matthias, JJ., concur.


text:
    No. 14583.
    Haberer, Gdn., v. Nolan.
    Decided April 27, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Pogue, Hoffheimer & Pogue, for plaintiff in error.

      Mr. John E. Fitzpatrick and Mr. Gideon C. Wilson, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14594.
    Fisch v. Baehr et al.
    Decided April 27, 1915.
    Error to Court of Appeals of Franklin county.

      Mr. T. J. Keating; Mr. John J. Chester and Mr. J. C. Erwin, for plaintiff in error.

      Mr. Geo. D. Jones and Mr. Emmett Tompkins, for ' defendants in error.
   Judgment affirmed.

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


text:
    No. 14634.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Grunkemeyer, Admr.
    Decided April 27, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Maxwell & Ramsey, for plaintiff in error.

      Messrs. Littleford, James, Ballard & Frost, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14666.
    The Cincinnati Traction Co. v. Danenfelser.
    Decided April 27, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. George H. Warrington and Mr. Robert S. Marx, for plaintiff in error.

      Messrs. Overbeck, Kattenhorn & Park and Mr. Jos. W. Conroy, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14487.
    Connelton, Admx., v. Loeb.
    Decided May 4, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Otto Pfieger, for plaintiff in error.

      Messrs. Cohen, Mack & Hurtig, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14609.
    The Peoples Bank & Savings Co. v. Cereguti (also spelled Ceregut).
    Decided May 4, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Cohen, Mack & Hurtig and Messrs. Maxwell & Ramsey, for plaintiff in error.

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

Donahue, Wanamaker, Jones and Matthias, JJ., concur.


text:
    No. 14639.
    The Mahoning Valley Ry. Co. v. Fitzpatrick, Admx.
    Decided May 4, 1915.
    Error to Court of Appeals of Mahoning county.

      Messrs. Arrel, Wilson, Harrington & DeFord, for plaintiff in error.

      Mr. E. H. Moore; Mr. James Kennedy; Mr. S. S. Conroy and Mr. S. M. Strain, for defendant in error.
    Judgment affirmed. See journal entry.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same is hereby, affirmed; the court of appeals correctly found that the trial court erred in giving in charge to the jury before argument written requests Nos. 1, 2, 6, 9 and 12.

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


text:
    No. 14640.
    Boggs v. Haley et al.
    Decided May 4, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Kramer & Bettman and Mr. Jos. A. Keadin, for plaintiff in error.

      Mr. W. W. Dickerson, Mr. Ben B. Nelson and Mr. S. O. Bay-less, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14643.
    Carrel, Exr., v. The Roche-Bruner Building Co. et al.
    Decided May 4, 1915.
    Error to Court of Appeals of Hamilton county. Messrs.

      Dempsey & Nieberding, for plaintiff in error.

      Messrs. Johnson & Levy and Mr. D. F. Cash, for defendants in error.
   Judgment affirmed. The constitutionality of Sections 3782 and 3783, General Code, not being determined.

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


text:
    No. 14671.
    Richards v. Bennett, Receiver.
    Decided May 4, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Dolle, Taylor & O’Donnell, for plaintiff in error.

      Messrs. Bennett & Utter, for defendant in error.
   Judgment affirmed.

Johnson, Donai-iue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    No. 14072.
    Campbell v. Campbell.
    Decided May 11, 1915.
    Error to Circuit Court of Guernsey county.

      Mr. Robert T. Scott and Mr. J. W. Campbell, for plaintiff in error.

      Mr. J. E. Todd and Mr. Chas. S. Turnbaugh, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14073.
    Campbell v. Campbell.
    Decided May 11, 1915.
    Error to Circuit Court of Guernsey county.

      Mr. Robert T. Scott and Mr. J. W. Campbell, for plaintiff in error.

      Mr. J. E. Todd and Mr. Chas. S. Turnbaugh, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14438.
    Frech v. The DeForest Sheet & Tinplate Co. et al.
    Decided May 11, 1915.
    Error to Court of Appeals of Trumbull county.

      Mr. Charles Fillius and Mr. Geo. T. Fillius, for plaintiff in error.

      Mr. G. P. Gillmer and Messrs. Arrel, Wilson, 'Fiar ring ton & DeFord,, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14635.
    McNamara, Admr., v. The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co.
    Decided May 11, 1915.
    Error to Court of Appeals of Franklin county.

      Messrs. Pugh & Pugh, for plaintiff in error.

      Messrs. Wilson & Rector, for defendant .in error.
    Judgment reversed. See journal entry.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals affirming the judgment of the common pleas court and the judgment of the court of common pleas of Franklin county, be and the same are both reversed, for error of the common pleas court in instructing the jury that as a matter of law Michael Barry and J. S. Power were fellow servants, and that the plaintiff could not recover on the ground of the negligence of Power, that question being a mixed question of fact and law, to be determined by the jury under proper instructions by the court.

Nichols, C. J., Johnson, Donahue, Wanamakee and Matthias, JJ., concur. Newman, J., dissents. Jones, J., not participating.


text:
    No. 14654.
    Reilly v. The Cincinnati Traction Co.
    Decided May 11, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Wm. E. Brooks and Messrs. Jackson & Woodward, for plaintiff in error.

      Mr. Miller Outcalt, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14743.
    The McNaul Boiler Manufacturing Co. v. Stretz, by etc., et al.
    Decided May 11, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Alex. L. Smith and Mr. Joseph B. Kelley, for plaintiff in error.

      Messrs. Peck, Shaffer & Peck; Messrs. Healy, Ferris & McAvoy and Messrs. Suire & Rielly, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14460.
    The Ohio Traction Co. v. Poland et al.
    Journal entry: It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed; and this cause is remanded to the said court of appeals with instructions to overrule the demurrer filed by the defendants in that court. — Reporter.
    Decided May 18, 1915.
    Error to Court of Appeals of Franklin county.

      Mr. George H. Warrington; Mr. Ellis G. Kinkead and Mr. Geo. B. Okey, for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general, and Mr. Clarence D. Laylin, for defendants in error.
   Judgment reversed.

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


text:
    No. 14461.
    The Ohio Traction Co. v. The State of Ohio.
    Decided May 18, 1915.
    Error to Court of Appeals of Franklin county.

      Mr. George jH. Warrington; Mr. Ellis G. Kinkead and Mr.

      Geo. B. Okey, for plaintiff in error.
    Journal entry: It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, modified; and coming now to render the judgment that the court of appeals should have rendered, it is hereby ordered and adjudged that the cause be remanded to the court of common pleas with instructions to modify its judgment by deducting from the amount thereof the excise tax' on dividends on securities owned by the defendant and on income derived from subsidiary companies, and it is further ordered and adjudged that the judgment of said court of common pleas as so modified be, and the same is hereby, affirmed. — Reporter.

      Mr. Timothy S. Hogan, attorney general, and Mr. Clarence D. Laylin, for defendant in error.
   Judgment modified and affirmed as modified.

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


text:
    No. 14677.
    The Mansfield Railway, Light & Power Co. v. Cain et al.
    Decided May 18, 1915.
    Error to Court of Appeals of Richland county.

      Messrs. McBride & Wolfe, for plaintiff in error.

      Mr. Rush Taggart; Mr. W. S. Kerr; Messrs. Tolies, Hogsett, Ginn & Morley, and Messrs. McBride & Wolfe, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Matthias, JJ., concur. Jones, J., not participating.


text:
    No. 14695.
    The Cincinnati Street Railway Co. et al. v. The City of Cincinnati.
    Decided May 18, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Joseph Wilby; Mr. George H. Warrington and Mr. Miller Outcalt, for plaintiffs in error.

      Mr. Walter M. Schoenle, city solicitor, and Mr. Constant Southworth, assistant city solicitor, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14716.
    The John C. Roth Packing Co. v. Williams, Admr.
    Decided May 18, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Aaron A. Ferris and Mr. Thomas H. Morrow, for plaintiff in error.

      Messrs. Littleford, James, Ballard & Frost, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14290.
    The Portsmouth Street Railroad & Light Co. v. Norfolk & Western Railway Co.
    Decided May 25, 1915.
    Error to Court of Appeals of Scioto county.

      Messrs. Milner, Miller & Searl, for plaintiff in error.

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

Johnson, Donahue, Wanamaker and Matthias, JJ., concur. Newman • and Jones, JJ., not participating.


text:
    No. 14560.
    The Globe-Wernicke Co. v. The Safe-Cabinet Co.
    Decided May 25, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Judson Harmon; Mr. C. D. Robertson and Mr. R. H. Parkinson, for plaintiff in error.

      Mr. James L. Steuart and Mr. Gideon C. Wilson, for defendant in error.
    Judgment affirmed.
    Wanamaker, Newman, Jones and Matthias, JJ., concur. Nichols, C. J., not participating.
    On October 19, 1915, the court made the follow^ ing entry on its journal. — Reporter.
   It is hereby ordered that the judgments and decrees heretofore made and entered by this court herein be and they are hereby set aside and held for naught; coming now to enter the judgment and decree which should have been made and entered by the court of appeals upon the facts disclosed by the record and found by said court, it is hereby ordered, adjudged and decreed that the plaintiff in error, The Globe-Wernicke Company, either - directly or indirectly through its officers, agents, servants, attorneys and employes, and each and all of them, be and they hereby are forever and permanently enjoined and restrained, in connection with the sale or offering for sale, or advertising, of containers or cabinets which are or purport to be adapted for the filing and preservation of documents, papers or other articles, and which are now made or sold by the defendant in error, The Safe-Cabinet Company, from in any way, manner or form directly or indirectly making use of or employing or causing to be made use of or employed by the following, to-wit:

The words “The Safe-Cabinet” or “Cabinet Safe” either alone or in conjunction with other words;

Containers or cabinets which in their collocation of shape, design and color, decoration or general appearance, so resemble the containers or cabinets heretofore sold or offered for sale by The Safe-Cabinet Company, defendant in error, or by The Globe-Wernicke Company, plaintiff ,i'n error,- as the same have been exemplified in this cause by exhibits marked “Plaintiff’s exhibit, Plaintiff’s cabinet,” and “Plaintiff’s exhibit, Defendant’s cabinet,” as to be calculated to mislead or deceive the public or intending purchasers of the defendant in error’s product into the mistaken belief that goods not made by it are in fact the product of The Safe-Cabinet Company, defendant in error;

From continuing to issue, publish or distribute a catalogue entitled “Plaintiff’s exhibit, defendant’s cabinet No. 911,” or any other circular or advertising matter calculated to mislead or deceive The Safe-Cabinet Company’s customers, intending purchasers, the public or the trade into the mistaken belief that the goods advertised by such circular or advertising matter are in fact the goods of The Safe-Cabinet Company, the defendant in error;

From palming off or passing off or substituting or attempting to palm off, pass off or substitute any containers or cabinets of like nature or purpose with those hereinbefore indicated, which are not made or sold by the defendant in error, The Safe-Cabinet Company, as and for the product of The Safe-Cabinet Company; from making or using, or causing to be macle or used, any statements, representations or devices, whether by word of mouth, advertising matter, catalogues, pamphlets or lettering on windows, signs or other advertising space, or otherwise, howsoever, which by the false or misleading character or purpose thereof, or by the nature and character of such advertising or lettering, as aforesaid, are calculated to mislead or deceive the customers of The Safe-Cabinet Company, intending purchasers, the public or the trade into the belief that the goods sold, or offered for sale, or so advertised by the plaintiff in error, The Globe-Wernicke Company and its officers, agents, servants, employes, or any one acting or claiming through or under them, or by their authority, are the product of The Safe-Cabinet Company, the defendant in error, and from every violation of said rights of the defendant in error, and from all acts constituting unfair trade or unfair competition in connection with or in respect to the business and trade of the defendant in error, The Safe-Cabinet Company, as found by the court of appeals herein.

It is further ordered that the Master heretofore designated and appointed by the court of appeals be and he hereby is directed to take the testimony of witnesses, make examination of all documents, books and papers that may in any manner aid or enable him to state an account between said parties, plaintiff in error and defendant in error, of the gains and profits made by The Globe-Wernicke Company, plaintiff in error, by reason of the sale by it of metal containers such as that exhibited in “Plaintiff’s exhibit, defendant’s cabinet” by the said acts of unfair competition in trade found by the court of appeals, together with such damage or damages as the defendant in error, The Safe-Cabinet Company, may have suffered by reason of the wrongful acts in that behalf on the part of The Globe-Wernicke Company, plaintiff in error; and for that purpose the Master is hereby authorized and empowered to subpoena witnesses with or without a duces tecum, and to compel the attendance of witnesses and the production of books, papers and other documents, and in the event of the non-compliance with any such subpoenas or orders, to certify the same to the court of appeals to be dealt with according to law; said Master is further ordered and directed to make a separate finding of fact and of law from the testimony and the law applicable thereto, and to report the testimony so taken, together with his findings of fact and. of law, to the court of appeals without unnecessary delay.

With the modifications herein made, the judgment, order and decree of the court of appeals herein is affirmed. — Reporter.


text:
    No. 14094.
    Chapman v. Townsend et al.
    Decided June 4, 1915.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. M. B. & H. H. Johnson; Mr. W. J. O’Neill and Mr. Charles Higley, for plaintiff in error.
    ' Messrs. A. A. & A. H. Bemis; Messrs. M. B. & H. II. Johnson; Mr. W.
      /. O’Neill; Mr. Charles Higley and Mr. C. R. Megerth, for defendants in error.
    For former decision, see 91 Ohio St., 400.— Reporter.
    On rehearing.
   Judgment affirmed.

Nichols, C. J., Johnson,' Newman and Jones, JJ., concur.


text:
    No. 14678.
    Hall v. Hoffman.
    Decided June 4, 1915.
    Error to Court of Appeals of Hamilton county.

      Anne S. Hall, P. P., for plaintiff in error.

      Mr. R. A. LeBlond, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14690.
    The J. F. Cherry Co. v. Yarger et al.
    Decided June 4, 1915.
    Error to Court of Appeals of Licking county.

      Messrs. Flory & Flory, for plaintiff in error.

      Mr. A. A. Stasel, for defendants in error.
    Judgment modified and affirmed as modified. See journal entry.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, modified by striking therefrom that part of the judgment perpetually enjoining the plaintiff in error from using or in any way passing upon the said ten foot right of way west of defendant’s building, and ordering and adjudging that the plaintiff pay the cost of the action.

Coming now to render the judgment that the court of appeals should have rendered from the facts found, it is ordered and adjudged that the defendants in error, Bertha Yarger and Gertrude Yarger, be and. they are hereby perpetually enjoined from obstructing, by building or otherwise, the plaintiff in error’s ingress and egress to the doorway of the second story of the building owned by him, and are perpetually enjoined from constructing and maintaining any building on the girders between their building and the building of the plaintiff in error that will in any way obstruct or project nearer to said door than the girders on either side thereof, and from constructing and maintaining any building across or upon said girders in front of said door, nearer to the door than a distance equal to the space between the two girders on either side of said door.

It is further ordered and adjudged that the plaintiff in error recover from the defendants in error, its costs expended in this court, and that each of said parties to this suit pay their own costs ex-pendéd in the common pleas court and the court of appeals of Licking county.

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


text:
    No. 14701.
    The City of Newark v. Crane et al.
    Decided June 4, 1915.
    Error to Court of Appeals of Licking county.

      Mr.. Ralph Norpell, city solicitor, and Messrs. Fit zgibbon, Montgomery & Black, for plaintiff in error.

      Mr. D. B. Van Pelt; Mr. Charles A. Craighead and Mr. Owen A. Nash, for defendants in error.
    Judgment reversed. See journal entry.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed; the court finds that the court of appeals erred in its conclusion that the plaintiff had abandoned said premises as a graveyard, and therefore erred in dismissing the petition of plaintiff; in entering a decree quieting the title of the defendants in said premises as against the plaintiff, and in requiring the plaintiff to remove water pipes, poles, electric light wires, lights, fountain, cement walks and cement steps from said premises.

The court finds that, notwithstanding interments have not been made in said graveyard for many years, and that many bodies previously buried there have been removed therefrom; it appearing that many bodies still remain, there has not been a complete abandonment of said premises to purposes inconsistent with its preservation as a graveyard.

The court further find that the improvements made by the plaintiff are not inconsistent with such use and preservation.

Coming now to make the decree which should have been entered herein by the court of appeals, it is hereby ordered and decreed that the title of the plaintiff in and to said premises — which shall be preserved and improved as a graveyard, but not otherwise — be and hereby is quieted as against the defendants, and all persons claiming through or under them, and the amended cross-petition of the defendants is dismissed, and the costs of this proceeding are adjudged to defendants in error.

Johnson, Donahue, Newman, Jones and Matthias, JJ., concur. Wanamakee, J., not participating.


text:
    No. 14702.
    The City of Newark v. Burnette et al.
    Decided June 4, 1915.
    Error to Court of Appeals of Licking county.

      Mr. Ralph Norpell, city solicitor, and Messrs. F it zgibbon, Montgomery & Black, for plaintiff in error.

      Mr. D. B. VanPelt; Mr. C. A. Craighead and Mr. Owen A. Nash, for defendants in error.
    Judgment reversed. See journal entry.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed; the court finds that the court of appeals erred in its conclusion that the plaintiff had abandoned said premises as a graveyard, and therefore erred in dismissing the petition of plaintiff; in entering a decree quieting the title of the defendants in said premises as against the plaintiff, and in requiring the plaintiff to remove water pipes, poles, electric light wires, lights, fountain, cement walks and cement steps from said premises.

The court finds that, notwithstanding interments have not been made in said graveyard for many years, and that many bodies previously buried there have been removed therefrom; it appearing that many bodies still remain, there has not been a complete abandonment of said premises to purposes inconsistent with its preservation as a graveyard.

The court further find that the improvements made by the plaintiff are not inconsistent with such use and preservation.

Coming now to make the decree which should have been entered herein by the court of appeals, it is hereby ordered and decreed that the title of the plaintiff in and to said premises — which shall be preserved and improved as ¿a. graveyard, but not otherwise — be and hereby is quieted as against the defendants, and all persons claiming through or under them, and the amended cross-petition of the defendants is dismissed, and the costs of this proceeding are adjudged to defendants in error.

Johnson, Donahue, Newman, Jones and Matthias, JJ., concur. Wanamaker, J., not participating.


text:
    No. 14726.
    The Cincinnati & Columbus Traction Co. v. Burch.
    Decided June 4, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. C. B. Matthezvs and Messrs. Dinsmore & Shohl, for plaintiff in error.

      Messrs. Healy, Ferris & McAvoy, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 14728.
    Evans et al. v. Robson et al.
    Decided June 4, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Herman P. Goebel, for plaintiffs in error.

      Messrs. Bettinger, Schmitt & Kreis, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14731.
    Humboldt Fire Insurance Co. v. The R. K. LeBlond Machine Tool Co.
    Decided June 4, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. J. L. Kohl, for plaintiff in error.

      Mr. Robert A. LeBlond and Mr. Joseph W. O’Hara, for defendant in error.
   Judgment affirmed and cause remanded to common pleas.

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


text:
    No. 14757.
    Greenland v. The Kroger Grocery & Baking Co.
    Decided June 4, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Louis P. Pink, for plaintiff in error.

      Mr.'R. A. LeBlond, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Newman, Jones and Matthias, JJ., concur. Wanamaker, J., not participating.


text:
    No. 14786.
    Sunday Creek Co. v. New York Coal Co.
    Decided June 17, 1915.
    Error to Court of Appeals of Franklin county.

      Mr. W. O. Henderson and Messrs. Daugherty, Todd & Rarey, for plaintiff in error.

      Mr. L. G. Addison; Mr. T. J. Keating and Mr. O. E. Harrison, for defendant in error.
   Judgment affirmed and cause remanded.

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