author: Summers, J.

text:
    Heffner v. The City of Toledo.

      City ordinance — Must contain but one object — Clearly expressed, in its title — Issuing of bonds for street improvement — Statutory requirements — Sections 1536-213, 2835, 1536-285 and 1536-287, Revised Statutes — Section 53, Municipal Code — Municipal law.

    1. The statutory requirement that “No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title,” was intended to prevent the uniting in one ordinance of diverse subjects or measures and effecting its passage by uniting in its support all those in favor of any, and to prevent the adoption of ordinances by the votes of councilmen ignorant of their contents.
    2. Whether an ordinance is violative of the statutory requirement that “No by-law’sor ordinance shall contain more than one subject, which shall be clearly expressed in its title,” is to be determined not by its form, but in the light of the mischief the statute was intended to prevent.
    3. An ordinance to provide for the issuing of bonds to pay the city’s part of the cost of thirty-two street and sewer improve- - ments, entitled: “An ordinance to provide for the issue of general street improvement bonds of the City of Toledo, State of Ohio, to pay said city’s p'art of the cost and expense of improving sundry streets and alleys by paving, repaving, grading and macadamizing and by constructing sewers therein and to pay the said city’s part of the cost and expense of constructing such sewers,” is not in conflict with the -statutory requirement that “No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.”
    '4. A city is not authorized to issue bonds to provide a. fund from which to pay its part of the cost of improvements that may from time to time be made, but it may, under Section 53 of the Municipal Code of 1902, Section 1536-213, Revised Statutes, or under Section 2835, Revised Statutes, issue bonds to pay its part of the cost of specific improvements.
    5. The bonds authorized by Section 53 of the Muhicipal Code of 1902 can not be provided for by resolution or ordinance until after the passage of an ordinance providing for the improvement.
    6. Under Section 2835, Revised Statutes, the council of the city may by a resolution or ordinance, passed by the affirmative vote of not less than two-thirds of the members elected or appointed thereto, provide for the issuing of bonds to pay the city’s part of the cost of a specific improvement before the passage of a resolution declaring the necessity for the improvement.
    7. The Tequirement of Section 1536-285, Revised Statutes, that bonds issued for a street improvement shall have the name of the street written or printed upon them, and the requirement of Section 1536-287, Revised Statutes, that bonds issued to pay for sewers in a district shall have written or printed upon them the name and number of the district, do not apply to bonds issued to pay the city’s part of the cost of such improvements.
    (No. 10380
    Decided January 22, 1907.)
    Error to the Circuit Court of Lucas County.
    In August, T906, the city of Toledo passed an ordinance entitled: “An ordinance to provide for the issue of general street improvement bonds of the City of Toledo, State of Ohio, to pay said city’s part of the cost and expense of improving sundry streets and alleys by paving, repaving, grading and macadamizing, and by constructing sewers therein and to pay the said city’s part of the cost and expense of constructing such sewers.” To enjoin the issuing of the bonds provided for by the ordinance an action was commenced in the court of common pleas. On appeal the circuit court sustained a general demurrer to and dismissed the petition, and error is prosecuted in this court.
    It appears from the ordinance that it provided for issuing $75,000 of bonds payable in, twenty years to pay the city’s part of the cost of thirty-two improvements. The ordinance specifies the different improvements and the city’s part of the cost of each; eight are for the construction of sewers and twenty-four for the improvement of streets, of which nineteen are to be paved, three to be repaved and two are to be graded; and the city’s part of the cost ranges in round numbers from $5 for a sewer to $26,000 for repaving a street.
    It was averred in the petition that as to three of the street improvements no resolution and no ordinance had been passed, and that as to eleven of the street improvements no ordinance had been passed.

      Mr. B. A. Hayes, for plaintiff in error.
    The city council, by passing a single ordinance authorizing, the issue of bonds to raise funds to pay the city’s part of thirty-two different improvements, violated the policy of the law as expressed in paragraph four of the syllabus in the case of Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St., 374.
    This case, like the case at bar, was one brought by a taxpayer to enjoin the issue and sale of municipal bonds. In that case there was a combination of two measures only: the purchase of water works, and the erection of water works; hete we have a combination of thirty-two improvements. This legislation is sixteen times as vicious.
    Plaintiff also claims that it is the policy of the law as to legislation regarding the making of improvements by municipal corporations, that different improvements shall not be combined in any of the various steps or stages of legislation thereon. Campbell v. City of Cincinnati, 49 Ohio St., 463.

      But there is the same objection to a combination of several improvements in one ordinance as there is to a combination of several improvements in several ordinances to be passed on a single roll-call.
    That a separate series of bonds should be issued for each improvement seems to be contemplated by the requirements of Sections 2706 and 2708, Revised Statutes.
    Surely it is not a compliance with these sections to print upon each of the seventy-five bonds here in question, the names of the twenty-four streets to be improved, and the numbers of the eight sewers to be constructed. The language of the sections refers to a single street or single sewer; apparently the expectation was that funds for each street or sewer should be raised with a separate issue of bonds.
    The ordinance authorizing the issue of the bonds in question was prematurely passed.
    From paragraph five of the petition it appears that as to fourteen of the streets for which the bonds were to be issued, no ordinance determining to proceed with the improvement had been passed, and as to three of them, no resolution had been passed. It further appears from the statement of facts that over fifty-two thousand dollars of the total issue of seventy-five thousand dollars is to be issued for these fourteen street improvements.
    Can bonds be issued for an improvement which council has not decided to make?
    Perhaps the council may never decide to improve one or two or more of these fourteen streets, and a vote in council to issue bonds to improve twenty-four streets and construct eight sewers is not a vote to issue bonds for the- improvement of twenty-two only, or any other number except twenty-four. 57 Ohio St., 374.
    These bonds are issued under Section 53 of the Municipal Code (Bates', 1536-213, 97 O. L., 126), the latter part of which reads: “Provided that any city or village is hereby authorized to issue and sell its bonds as other bonds are sold to pay the corporation's part of any improvement as aforesaidtherefore they can be issued only “as aforesaid”; the words “as aforesaid” plainly refer to the sentence in the middle of section beginning :
    “In all municipalities, the corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council may deem just, which part shall not be less than one-fiftieth of all such cost and expenses; and in addition thereto, the corporation shall pay the cost of intersections.”
    But special assessments are never levied except in cases where ordinances determining to improve have been passed. Section 55 of the Municipal Code (97 O. L., 122).
    Nor can it be known what amount of bonds to issue until after the board of public service has determined of what material the improvement shall be made; but this board can not determine that fact until the council has passed the improvement ordinance containing “a statement of the general nature of the improvement and the character of’ the materials which may be bid upon therefor.”
    Therefore under this Section 55 (Bates', 1536-■215) no bonds can be issued to pay the city’s part of a street improvement where no improvement ordinance has been passed.
    Bonds to pay the city’s part of an improvement should be a part of the same issue as those to be paid from assessments on benefited property. Section 51 of the Municipal Code (Bates’, 1536-2i 1, 97 O. L., 121).
    Under Section 51 bonds may be issued to pay that part of the cost of the improvements which is to be assessed on benefited property; under Section 53 bonds may be issued to pay the city’s part of improvements; under Section 95 (Bates’, 1536-281) bonds may be issued sufficient “to pay the estimated cost and expense of the improvement for which such special assessments are levied.”
    Under Section 95, the issue of bonds may be sufficient to pay the estimated cost of the improvement, not only that to be assessed upon the benefited property, but also the city’s part of the improvement. These three sections were construed in the case of Emmert v. City of Elyria, 78 N. E. Rep., 269, 272.

      Mr. Charles S. Northup, city solicitor, and Mr. John P. Mantón, for defendant in error.
    The bonds provided for in the ordinance set out in the petition are to be issued for the purpose of raising a fund to pay the costs of the portion of the improvement lying within street intersections, and a percentage, which ranges from two per cent, to fifty per cent., of the whole cost of the improvement, as required by the second and third paragraphs of Section 53 of the Municipal Code.

      Thé bonds provided for in the ordinance set out in the petition are -authorized by the last paragraph of said Section 53 of the Municipal Code.
    The words “any improvement as aforesaid” in this paragraph manifestly refer to “improvements for which special assessments are levied” as referred to in the first paragraph of said Section 53, wherein it is provided that “the corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council shall deem just.”
    It is contended by the plaintiff in error that the ordinance providing for the issue of bonds violates the' provision of Section 1694, Revised Statutes, which says:
    “No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.”
    Practically the only ground upon which this bond issue is attacked is that the ordinance providing for the issue violates the foregoing requirement.
    The subject of the ordinance is the issue of bonds; the purpose is to raise a fund to pay the city’s portion of the cost of certain improvements. This ordinance does not provide for making the improvements; that has been or will be provided for by other legislation and.each improvement will be provided for by a separate resolution and ordinance. The case of Elyria Gas & Water Company v. Elyria, 57 Ohio St., 374, does not apply to the facts in this case. The council in the Elyria case provided for an issue of bonds for two purposes in one ordinance." No opportunity was given • the electors to indicate which purpose they desired to support, by reason of the two purposes having been included in the one ordinance. The court in that decision seem to have construed “subject of the ordinance” to mean “purpose for which bonds are to be issued.” The ordinance in this case provides bonds for but one purpose.
    ■ Now, this ordinance declares these bonds are to be issued “to pay the city’s portion of the cost;” it follows that a portion is to be paid by some persons other than the city or the general taxpayers, and as it can be no other than the owners of the property specially benefited, special assessments must be levied to pay such portion. Then these are improvements coming within Section 53 of the Municipal Code.
    There are but two ways of providing for the cost and expense of municipal improvements; it must be done either by levy of a general tax or by special assessment. If these improvements were to be paid for ultimately by a tax levy, the bonds would be issued for the whole cost of the improvement and not the city’s portion.
    Prior to the act of October 22, 1902 (the new Municipal Code), Section 2273, Revised .Statutes, required certain cities to pay a portion of the costs of improvements, and Section 2274, Revised Statutes, required certain cities to pay the costs of improvements lying within street intersections, and these sections authorized a special tax to be levied to pay the city’s portion of the costs, but there was no authority to issue any bonds for the purpose. of paying the city’s portion; the provision in Section 53 of the new Municipal Code is the first act authorizing the issue and sale of bonds for such purpose. The provisions of Sections 2273 and 2274 were reenacted in Section 53 of the new code and the provision added authorizing the issue of bonds.
    The general provisions relative to municipal bonds are found in the act of April 29, 1902, known as the Long worth Bond Act, contained in Section 2835, Revised Statutes, et seq. This act was in effect prior to the passage of the Municipal Code, and the powers given by Section 53 of the code are in addition to the authority conferred by the Longworth Act and for a purpose not enumerated in that act.
    The requirements of Section 2706 and 2708 that bonds issued for street or sewer purposes shall have the name of the street and the name and number of the sewer district printed thereon, were intended to identify the fund which should redeem such bonds, and they were intended to apply only where special assessments were levied upon specially benefited property to pay for the improvements, the law requiring that when such assessments were collected they should be turned over to the sinking fund trustees to form a fund for the redemption of the bonds issued to pay for the respective improvements. These sections followed Sections 2704 and 2705, which provided for borrowing money and authorized the issuing of bonds in anticipation of special assessments. These last mentioned sections were repealed by the act of October 22, 1902, and substantially re-enacted in Sections 95 and 95a of the Municipal Code, and both of these sections require that when assessments are paid they shall be applied to the liquidation of the bonds and notes issued to pay the cost and expense of improvements in anticipation of the collection of the assessments.
    Now the bonds to be issued under the ordinance attacked in this case are not to be liquidated from assessments collected, but must be paid • from the tax levied for the sinking fund.
    If the city of Toledo issued bonds for the establishment of water works or a municipal lighting plant, it would be providing for the improvement of many streets and public places, but it will not be contended that it should have a separate issue of bonds for each street or public place, and it could issue such bonds before it had legislated for the particular streets or places to be improved by supplying water or light therefor.
    Section 91 of the Municipal Code provides for borrowing money to pay the expense of constructing main sewers and branches. The chy is not required by this section to have a separate issue for each main sewer or branch; it may provide.by one issue of bonds for the construction of the whole sewage system. The municipality may determine by one legislative act to improve all the streets in a certain section, and if the cost •and expense are not to be specially assessed, but are to be paid ultimately out of the general revenue, it could provide for the cost and expense by one issue of bonds under the Longworth Act (Section 2835, Revised Statutes).
   Summers, J.

This case was orally argued to one division of the court, but has been considered by the whole court.

Several questions are raised. First, whether the ordinance violates the requirement of Section 1694, Revised Statutes (1536-620, Bates’ 5th Ed.), that: “No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.” Second, whether a city may issue bonds to provide a fund to' pay the city’s part of the cost of improvements that are in part to be paid for by special assessments. Third, may it issue and sell its bonds to pay its part of an improvement which it has not by resolution declared necessary? Fourth, may it issue and sell its bonds for .that purpose after the passage of such a resolution, but before it has passed an ordinance to proceed with the improvement ?

The requirement of Section 1694 that: “No bylaw or ordinance shall contain more than one subject, which shall be clearly expressed in its title,” evidently was suggested by the provision of Section 16 of Article 2 of the constitution that: “No bill shall contain more than one subject, which shall be clearly expressed in its title.” The latter provision has been held to be directory (Pim v. Nicholson, 6 Ohio St., 176), and if the former were so it would not require further consideration, but it has been held mandatory (Bloom v. City of Xenia, 32 Ohio St., 461; Campbell v. City of Cincinnati et al., 49 Ohio St., 463). No cases interpreting the former provision are cited and the latter having been held directory has not been the subject of much consideration here, and so light as to its meaning is to be sought in cases interpreting similar provisions in the constitutions of other states. .•

In People, ex rel., v. Mahaney, 13 Mich., 481, it is said: “The history and purpose of this constitutional provision are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature and having no necessary connection, with a view to combine' in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state. It was scarcely more so, however, than another practice, also intended to be remedied by this provision, by which, through dexterous management, clauses were inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were not generally aware vof their intention and effect. There was no design by this clause to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number; but the framers of the constitution meant to put an end to legislation of the vicious character referred to, which was little less than a fraud upon the public, and to require that in ever)'- case the proposed measure should stand upon its own merits, and that the legislature should be fairly satisfied of its design when required to pass upon it.” And Judge Cooley says (Cooley’s Const. Lim., 7th Ed., 205) : “The general purpose of these provisions is accomplished when a law has but one general object, which is fairly indicated by its title. To require every end and means necessary or convenient . for the accomplishment of this general object to be provided for by a separate act relating to that alone, • would not only be unreasonable, but would actually render legislation impossible.”

To accomplish the object of the ordinance under consideration thirty-two ordinances might have been passed, or one ordinance might have been so drawn that it could be said to contain thirty-two subjects, and yet the ordinance in question is so drawn that it contains but one general subject,’ viz.: providing funds, by the issuing of bonds, to pay the city’s part of the cost of certain improvements. Of course it is not intended that it may he inferred that the mere form of the ordinance shall determine whether it is in conflict with the statute. To determine that question the ordinance must be examined in the light of the mischief the statute was intended to prevent. The issuing of bonds to pay the city’s part of the cost of such improvements is merely incidental to the making of the improvement, and council can not provide for the making of the separate improvements without the concurrence of- three-fourths of the whole number of members elected to council, unless the owners of a majority of the foot frontage to be assessed petition in writing therefor, and in that event the concurrence of a majority of the whole number elected is essential. And if a greater part of the cost of the improvement than that required by statute is to be paid by the corporation, it must be provided for in the resolution or ordinance providing for the improvement. It would seem, therefore, that the ordinance in question is not within the mischief intended to be prevented by the statute. The following illustrative cases may be referred to. In State v. Wells, 46 Iowa, 662, the title of the ordinance was: “An ordinance defining and prescribing punishment for certain offenses.” The ordinance defined and prescribed the punishment for twenty-six offenses, and it was contended that the ordinance had as many subjects. Beck, J., said: “This is clearly a mistake. The subject of the ordinance is offenses against the city. The one subject is composed of many parts.” In City of Seattle v. Barto, 31 Wash., 141, the ordinance is entitled: “An ordinance to license and regulate certain trades and occupations in the city of Seattle, providing penalties for the violation thereof, and repealing all ordinances . inconsistent therewith.” The ordinance contained provisions relating to the licensing and regulating of various trades and occupations, among which were auctioneers, second-hand dealers, billposters, hotel runners, persons engaged in the temporary sale of goods, and pawnbrokers. Fullerton, C. J., says: “It was not intended by the requirement contained in the charter that the city council should not pass an ordinance having a general object, and bring within its terms all matters pertaining to that object, whether it embrace a number of persons or a variety of trades and occupations. The term ‘object’ was not used in the sense of ‘number’ or ‘variety,’ nor was .it intended to require a distinct legislative act for each particular matter legislated upon. It was intended to prevent the union in one act of diverse, incongruous and disconiiected matters, having no relation to or connection with each other, but was not intended to prevent the lawmaking power from enacting under a general title provisions affecting a variety of matters, so long as there is a natural connection between the several matters and the object named in the title.” The opinion is too long to quote, but is deserving of consideration by any one investigating the question. In City of St. Louis v. Weitzel, 130 Mo., 600, an ordinance entitled, “An ordinance regulating the keeping, storing and handling and licensing the removal of garbage, grease, offal and other refuse matter composed of either animal or vegetable matter,” and to repeal a prior ordinance on the same subject, “and prescribing penalties for the violation thereof, and fixing a license tax on vehicles used for the removal of garbage,” was held not to be in violation of such a provision, for the ordinance itself relates only to garbage and offal. And in Weber v. Johnson, 37 Mo. App., 601, an ordinance which provided both for the grading and paving of an alley was upheld. In Stebbins v. Mayer, 38 Kan., 573, the title of the ordinance was, “An ordinance prohibiting animals from running at large in the city.” Section 1 provided what animals should be prohibited from- running at large, but Section 2 provided that no person should keep a dog within the limits of the city without complying with certain regulations, among which was the payment of a tax, and directing the city marshal to kill all dogs found running at large whose owners had not complied with such regulations, and making the owner liable for criminal prosecution for failure to comply therewith, and for that reason it was held to be in violation of the provision that: “No ordinance shall contain more than one subject, which shall be clearly expressed in its title.”

Before the present Municipal Code cities were authorized to assess the cost and expense of such improvements upon the abutting property, excepting that not less than one-fiftieth of the cost and expense of the improvement and the estimated cost of that part of it included in street intersections was required to be paid by the city. The city was not authorized to levy a tax to provide a fund from which its part of such cost might be paid from time to time as improvements were made, but the amount it was to pay was, when ascertained, assessed upon all the taxable property in the city and certified to the county auditor for .collection as other taxes. This levy could not be made until the improvement had been ordered, which could be done only by ordinance after the expiration of the time limited for the filing of claims .for damages. When the improvement was extensive, or there were numerous improvements, or the city elected to pay a larger proportion of the cost, often the burden was too large to be borne in one year and bonds could be issued only when authorized by an election. The steps necessary to the making of an improvement were so numerous that they made it impracticable in many instances for public officials to originate and complete an improvement during their term ■ of office, hence the fruitful source of much special legislation. To remove this mischief, the so-called Longworth bond law was passed (95 O. L., 318). At that time provision was made, by Sec-' tions 2835, 2836 and 2837, Revised Statutes, that bonds might be issued for twenty distinct purposes,, therein specified, and that in addition -to the taxes otherwise authorized, a tax sufficient to pay the bonds falling due, and the interest thereon, should be levied every year during the life of the bonds; provided, that before the bonds. were issued, or any tax levied, the question of issuing the bonds should be determined at a general or special election.

Among the purposes enumerated in Section 2835 for which bonds were authorized, was the construction of sewers. The Longworth law added a number of.purposes, among them: “22. For resurfacing, repairing or improving any existing street or streets as well as other public highways.” “23. For opening, widening and extending any street or public highway.” “24. For purchasing or condemning any land necessary for street or highway purposes, and for improving the same or paying any portion of the cost of such improvement,” and provided that bonds for any or all of the enumerated purposes might be issued whenever declared necessary by the affirmative vote of .two-thirds of the members of the municipal legislative body. The act limited the amount of bonds that might be issued in any one year to one per cent, of the total tax value of all the property in the corporation, and the .aggregate of such bonded indebtedness unpaid to four per cent, unless an excess, but in no event to exceed eight per cent., was authorized by the electors at a general or special election. This law was not repealed, but was expressly continued in force by Section 100 of the Municipal Code of 1902, and is sufficiently comprehensive to include the issuing of bonds for the purpose specified in the ordinance.

The substance of Sections 2273 and 2274, Revised Statutes, providing that the city should pay for the intersections -and not less than one-fiftieth of the cost of the improvement, was embraced in Section 53 of the Municipal Code of 1902, and this provision was added: “Provided, that any city or village is hereby authorized to issue and sell its bonds as other bonds are sold to pay the corporation’s part of any improvement as aforesaid, and may levy taxes in addition to all other taxes authorized by law to pay such bonds and the interest thereon.” If this was the only authority to issue bonds for this purpose, it might be that there was power only to meet the city’s part of the cost by issuing bonds instead of by a levy, and, as the latter could not be made until an ordinance to proceed with the improvement had been passed, that counsel’s contention is sound that that is a prerequisite to the issuing of the bonds. But, as has been shown, the authority already existed in the Longworth law, and the provision in Section 53 is not to be construed as limiting the powers conferred by the Longworth law, but as a grant of additional power. Attention to the provisions of the Longworth law, as well as to the provisions of the sections that it amended, will disclose that, as there conferred, the power was not limited to the issuing of bonds to pay the city’s part of the cost of improvements that had been provided for by ordinance, but might be exercised when they were merely contemplated. It was not necessary that a resolution should have been passed declaring the intention to make the improvement, but the statement in the ordinance providing for the bonds, that they were to be issued for a specific purpose, was sufficient evidence of the intention.

The requirement of Section 1536-285, Revised Statutes, that bonds issued for" a street' improvement shall have the name of the street written or printed upon them, and the requirement of Section 1536-287, Revised Statutes, that bonds issued to pay for sewers in a district shall have written or printed upon them the name and number of the district, do not apply to bonds issued to pay the city’s part of the cost of such improvements, but to bonds issued in anticipation of special assessments. This will appear on inspection of the original sections, and there is reason- why such requirement should be made respecting special assessments and • none occurs respecting the part paid by the city. The special assessment is based upon the special benefits from the particular improvement to the property assessed, and can be applied to no other purpose, and it is important, therefore, that the bonds issued in anticipation of its collection be identified, but the assessment to pay the city’s part. of the cost of such improvements is a tax levied upon all the taxable property of the city, and while it may be applied only to the purpose for which it was levied, yet it is not material so long as it is so used that the particular improvement be identified.

Judgment affirmed.

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


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    Pennsylvania Company v. Mehaffey.

      Right of party furnishing material for construction of railroad— Such party has lien on railroad for payment, when — Definition of term "materials," used in railroad construction — Hay, grain, straw and feed, not materials, when — Sections 3208 and 3211, Revised Statutes — Law of contracts — Interpretation of statutes.

    1. Under Section 3208, Revised Statutes, which provides that “a person who * * * furnishes materials for or in the construction of any railroad, * * * in addition to his rights under the preceding section shall have a lien for the payment of the same upon such railroad,” the term materials, as therein used, comprehends and includes such articles only as are furnished for and to be used in the construction of such railroad. Therefore, a person who furnishes hay, grain, straw and feed to a contractor or sub-contractor for the. keep of teams employed by them in working on said railroad, is not, within the purview and meaning of this section, furnishing materials.
    2. Section 3211, Revised Statutes, while it, in terms, extends the provisions of above Section 3208, to such persons as furnish hay, grain, etc., on the order of a contractor or sub-contractor for their use or the use of persons employed by them or either of them while furnishing material or labor for or in the construction of such railroad,- does not extend or enlarge the meaning of the word materials; nor does it impose upon the railroad company a personal liability for the articles thus furnished if no lien therefor be taken and perfected.
    3. The Pennsylvania Company being engaged in the construction of certain side tracks, switches and other improvements on its railroad right of way at and near the village of Lafayette in Allen county, Ohio, caused to be posted at said village, and . at other places in said county near the place where said work was being done, written notices that the Pennsylvania Company would “protect all claims for materials, labor and board.” Held: that the claim of M. for hay, grain, straw and feed furnished by him to a contractor, for teams employed by the • latter on said work, is not a claim for either material, labor or board within the language and meaning of said notice, and, therefore, 'is not a claim which the Pennsylvania Company, by the posting of said notices, thereby assumed, or obligated itself, to protect and pay.
    (No. 9614
    Decided January 22, 1907.)

      Error to the Circuit Court of Allen county.
    On October 25, 1902, the defendant in error, R. Mehaffey, filed his petition against the Pennsylvania Company in the court of common pleas of Allen county, Ohio, charging in said petition, as and for his cause of action:
    “That the defendant, Pennsylvania Company, is a corporation duly created under the law, and as such corporation, before and at the time of the facts hereinafter mentioned,* to-wit, on the first day of January, 1900, was the owner and in •possession of a certain railroad and was operating the same into and through Allen county, Ohio; that at the date herein above named, and for a long time thereafter, said defendant was constructing side tracks, switches, and making other improvements to and upon its said railroad right-of-way within the county aforesaid; that such work was under the management of Overstreet & Styles, assignees of Dorwin, Young & Co.; that there was necessarily a large number of men, horses and mules employed by said Overstreet & Styles in and about the work herein alleged; that at the special instance and request of the said Overstreet & Styles, this plaintiff furnished, for the construction and improvements herein averred, material, hay, corn and other provisions for said men, horses and mules, aggregating four hundred and ninety-one dollars and thirty-one cents ($491.31) on account, a copy of which is hereto annexed and herewith filed, marked ‘Exhibit A.’ ”
    (Which exhibit shows that the only articles furnished by plaintiff, which are here involved, were hay, corn, straw and feed.)

      “Plaintiff further avers that for several months prior to the twenty-third day of March, 1900, the said Overstreet & Styles had failed to make prompt payments of amounts due and owing by them to the persons who had performed labor and furnished materials, supplies and other provisions upon and to the work aforesaid, whereby the prosecution and completion of the said work was .greatly hindered and delayed; that the aforementioned creditors of the said Overstreet & Styles, among whom was this plaintiff, were insisting upon the payment of their claims which were due and unpaid by the said Overstreet & Styles, and were threatening legal proceedings against them to compel the payment of the same; that thereupon and to prevent the institution of said legal proceedings and further hindrance to and delay of .the work aforesaid, the Pennsylvania Company, there being then in its possession a portion of the contract price which it was to pay for said work, caused a written notice to be posted in the village of Lafayette, Allen county, Ohio, and other places within said county and state, a copy of which notice is hereto attached, herewith filed, and marked 'Exhibit B/ ”
    (Said Exhibit B is in the words and figures following :)
    “Pennsylvania Lines West of Pittsburg.
    “Date, 3-23, 1900. Fort Wayne. Time, 5:2o P. M.
    “To Agent Pennsylvania Company:
    “Dear Sir — Post notice that Pennsylvania Company will protect all claims for material, labor and board.
    “F. A. Zollars.”

      “That said notice was an agreement on the part of the defendant herein to protect and pay the said creditors of the said Overstreet & Styles, including this plaintiff, whereby the defendant became liable to the plaintiff in the amount above stated.
    “Plaintiff further avers that, relying upon the said written notice and in consideration thereof, he released and turned over to the said Overstreet & Styles, some twenty head of horses and mules then in his possession, which he would have retained until his claims were paid, only for the posting of the notices herein alleged; and that after the posting of the said notice, he continued to furnish for said work further materials, hay, corn and other provisions at the request of said Overstreet & Styles.
    “Plaintiff further avers that after the posting of said written notice, and on or about the fifteenth day of April, 1900, the said defendant; by its authorized agent, in compliance with the said written notices posted as aforesaid, came to Lafayette and paid off a large number of said creditors’ claims and promised within a short time thereafter to return and pay the remaining claims, including the claims of this plaintiff; and that the plaintiff’s claim was similar to those of the said creditors which were paid by the defendant.
    “Plaintiff further avers that relying upon the said written notice and request of the said defendant, and the representation of the agent paying said claims at Lafayette, and believing that said defendant would fully perform and carry out its said agreement, he did not institute any legal proceedings to secure the payment of his claim, and refrained from in any way hindering and obstructing the speedy completion of the work aforesaid, and did not take any legal action by filing an affidavit with the recorder of Allen county, Ohio, to perfect his lien against the said defendant for materials, hay, corn, and other provisions furnished as herein stated, as the plaintiff could and would have done but for the posting of said written notices and representations of the said agent.
    “Plaintiff further avers that the claim herein set. •forth is long since due; that he has requested of the defendant the payment thereof, and that the same remains wholly unpaid; and that the said plaintiff is justly entitled to the said sum of four hundred and ninety-one dollars and thirty-one cents ($491.31), together with interest thereon from April 11, 1900.
    “Wherefore, said plaintiff asks judgment in the sum of four hundred and ninety-one dollars and thirty-one cents ($491.31), and interest and all other relief.”
    To this petition the Pennsylvania Company answered as follows:
    “Now comes the defendant, Pennsylvania Company, and for answer to plaintiff’s second amended petition says, it admits that it is a corporation duly incorporated under the laws of the state of Pennsylvania, and that on the first day of January, 1900, and for a long time prior to, and ever since, it has been operating the Pittsburg, Ft. Wayne & Chicago Railway as lessee, and that said railway passes through Allen county, Ohio, and that on the first day of January, 1900, it was constructing side tracks, switches, and making other improvements upon said railroad right-of-way within said county, and it denies each and every allegation in said amended petition contained not herein specifically admitted, and prays to be hence dismissed with its costs.”
    Upon the issues joined by the pleadings aforesaid, trial was had in the court of common pleas, which resulted in a verdict and judgment for the plaintiff Mehaffey, in the sum of $544.80. This judgment was subsequently affirmed by the circuit court. The Pennsylvania Company prosecutes error in this court, asking a reversal of said judgment of affirmance.

      Mr. S. S. Wheeler and Mr. Allen Zollars, for plaintiff in error.
    The alleged telegram was that the Pennsylvania Company “will protect all claims for material, labor and board.” The petition and the evidence without any conflict show that the appellee’s claim is for hay, corn, straw and feed, which he furnished to Overstreet & Styles, and for nothing else, except some items for rent, which he abandoned- in the court below.
    The telegram does not mention hay, corn, straw or feed. It is, that the company “will protect claims for material, labor and board.”
    Appellee has not contended that his claim is for labor or board. Plis contention has been that hay, corn, straw and feed are material, within the terms of the telegram.
    Appellee has not made a case against the company upon any ground whatever, whether legal or moral.

      Hay, corn, straw and feed not “material.”

      Dudley v. Toledo, etc., R. R. Co., 30 Am. & Eng. Railroad Cases, 236; Central Trust Co. v. Texas & St. Louis Ry. Co., 23 Fed. Rep., 703; 27 Fed. Rep., 178; Standard Oil Co. v. Lane et al., 44 N. W. Rep., 644; Oppenheimer et al. v. Morrell, 12 Atl. Rep., 307; Williams v. Bradford et al., 21 Atl. Rep., 331; McDermott v. Palmer, 8 N. Y., 383; 23 Am. & Eng. Ency. Law, 720; Industrial & Mining Guaranty Co. v. Electrical Supply Co. et al., 58 Fed. Rep., 732; Stewart Chute Lumber Co. v. Missouri Pac. Ry. Co. et al., 49 N. W. Rep., 769; Gordon Hardware Co. v. San Francisco & S. R. R. Co., 22 Pac. Rep., 406; Stichtenoth v. Rife, 6 C. C., 540; Sections 3184, 3193, 3207, 3208, 3209, 3210 and 3211, Revised Statutes.
    No consideration upon which to hold the company upon the telegram.
    Clark on Contracts, Section 73, p. 165; Manter v. Churchill, 127 Mass., 31; Mecorney v. Stanley, 8 Cush., 85; Shadburne v. Daly, 18 Pac.. Rep., 403; Tucker v. Woods, 12 Johnson (N. Y.), 189; Johnson v. Otterbein University, 41 Ohio St., 527; Bieber v. Beck, 6 Pa. St., 198; Shupe v. Galbraith, 32 Pa. St., 10; Cobb v. Page, 17 Pa. St.,469; Hoffmann et al. v. Mayoud et al., 93 Fed. Rep., 171; Smith v. Bibber, 17 Am. St., 464; Johnston v. Fessler, 32 Am. Dec., 738.
    • Appellee can not recover from the appellant for the further reason that he never in any way accepted the terms of the telegram, or made any effort to collect from Overstreet & Styles.

      Stone v. Rockefeller, 29 Ohio St., 625; Dill-

      man v. Nadelhoffer, 43 N.. E. Rep., 378; Stewart v. Knight & Jillson Co., 71 N. E. Rep., 182; Lee v. Dick et al., 10 Pet. (U. S.), 482; Miller v. Ratterman, Treas., 24 S. E. Rep., 496; Dewey v. W. B. Clark Investment Co., 31 Am. St., 623; Belmont Bank of St. Clairsville v. Beebe, 6 Ohio 498; Bosman v. Akeley, 33 Am. Rep., 447; Craig v. Parkis, 40 N. Y., 181; Brandt on Suretyship and Guaranty, 2d Ed., Section 100.

      Messrs. Sprague & Lippincott and Mr. I. S. Motter, for defendant- in error.
    The first three propositions, as well as the first instruction asked by the appellant and refused by the court, may be considered together, for it is contended in them by plaintiff in error, that the words “material,” “labor” and “board,” contained in the telegram upon which defendant in error bases his action, are not to be construed so as to include hay, corn and feed — these being the items making up the account the defendant in error recovered upon.
    Counsel are mistaken in their contention. “Material,” “labor” and “board” do include hay, corn and feed. It must not be forgotten that this is a claim of a creditor who has furnished certain articles to a railroad company contracting for construction,. and that he is entitled to the protection of the law which the railroad company is bound to know. What is the law? Section 3207, Revised Statutes.
    Plaintiff in error has in its brief advanced fourteen propositions by which it attempts to show error in the court below. Sections 3207, 3208, 3209, 3210 and 3211, Revised Statutes; Southerland on Statutory Construction, Section 402; Beach on Modern Law of Contracts, Section 715; Morgan v. State, 48 Ohio St., 371.
    We submit it to be the law, when a- statute defines itself, that no other construction can be given. The legislature has said that “material,” “labor” and “board” shall, in this connection, include hay and grain. We cite in support of our view Smith’s Leading Cases, Vol. 2, page 860; Palmer v. Yarrington, 1 Ohio St., 253; Hildebrand v. Fogle, 20 Ohio, 147.
    We think, under all the facts in this case, the authorities which we here cite support our view, that the notice was an absolute guaranty and for a consideration. Cambria Iron Co. v. Keynes et al., 56 Ohio St., 501; National Bank of Commerce v. Garn et al., 13-23 O. C. C., 447; Birdsall v. Heacock, 32 Ohio St., 177; Rutherford v. Brachman, 40 Ohio St., 604; Powers & Weightman v. Bumcratz, 12 Ohio St., 273; Wise v. Miller, 45 Ohio St., 388.
    Viewing the case at bar as one showing the Pennsylvania Company as guarantor of the claim of the defendant in error, we affirm that it is the clear rule of the law in Ohio, that notice to the Pennsylvania Company of the acceptance by the defendant in error, of the guaranty, is not necessary. The telegram, as posted, is an absolute guaranty of the payment of the claim, and within the rule of the case cited in 12 Ohio St., and 45 Ohio St., supra. Indeed, the language of the notice posted is free from ambiguities and uncertainties, and is positive, definite and without conditions. If this notice is construed to be an offer of guaranty, then we conclude no language could be used that would state a guaranty.
   Crew, J.

In the present case, aside from the averment in the petition (unsupported by any evidence) that the Pennsylvania Company by its authorized agent expressly promised to pay the claim here in suit, there is in this case neither allegation nor proof of any liability on the part of said company to compensate R. Mehaffey for the hay, corn, straw and feed furnished by him to Overstreet & Styles, except such as can be predicated upon, or results from, the posting by the Pennsylvania Company at the village of Lafayette in Allen county, Ohio, and at other places within said county, of the following telegram or notice, to-wit:'

“Pennsylvania Lines West of Pittsburg.

“Date, 3-23, 1900. Fort Wayne. Time, 5:20 P. M.

“To Agent Pennsylvania Company:

“Dear Sir — Post notice that Pennsylvania Company will protect all claims for material, labor and board.
“F. A. Zollars.”

The language of this telegram, when construed most favorably for the plaintiff below, Mehaffey, in terms imposes upon the Pennsylvania Company no obligation or duty other than that of protecting and paying all such claims as properly belong to and fall within one or the other of the classes therein designated, namely: claims for material, labor or board. That the claim in suit in this case was not one for labor or board is conceded. But it is insisted that within the terms of the above telegram, and within the meaning of the statutes hereinafter referred to, the hay, corn, straw and feed furnished by Mehaffey to Overstreet & Styles were materials; and that Mehaffey’s claim for the articles so furnished became, and was therefore, one of the claims which the Pennsylvania Company in said telegram expressly assumed to protect and pay. Directly the contrary view is urged by counsel for the railroad company, who contend that the word “material” as used in the telegram, and as employed in the statutes in connection with the construction of railroads, has, and had at the time said telegram was sent and posted, a fixed, well-defined and commonly understood meaning, which was and is, that the word or term when thus used is descriptive of and includes such articles only as are furnished for, and are to be used in, the construction of the road, and that it does not comprehend or embrace articles furnished or supplied for any other purpose; such as feed furnished for teams working upon the railroad, or merchandise, clothing or board furnished the. laborers employed thereon. On the trial of this cause in the court of common pleas, counsel for the Pennsylvania Company requested the.court to give to the jury the following instruction: “No. 1. Gentlemen of the Jury: I charge you, as a matter of law, that the hay, corn, feed, straw and rent set up in the itemized account of plaintiff, is not covered or included in the words 'labor, material and board/ set out in the telegram which is introduced as evidence in this case.” This instruction the court refused to give, and in the general charge instructed the jury as follows: “Now, gentlemen, * * * I might say, before closing, that if you find this telegram was posted by the authority of the company, and if you find that the plaintiff in this case furnished hay, grain, straw and other feed and materials of that character to the contractor or sub-contractor for the use of his horses upon the work, that the plaintiff would be considered as having furnished material, within the meaning of the terms of this telegram, and he would be entitled to recover.” The refusal of the court to cliarge as requested, and the giving by the court of the above instruction, are among the errors here assigned. A determination of whether or not the action of the court in this behalf was erroneous necessarily involves a consideration of the purpose and provisions of Sections 3207, 3208, 3209, 3210 and 3211, Revised Statutes. Section 3207 provides what contracts for railroad work shall stipulate, and makes the contractor liable to persons performing labor or furnishing materials stipulated for in the contract with the owner of .the road. But it makes no provision for a lien upon the road, nor does it impose any liability on the railroad company for the labor so performed or the materials so furnished. Section 3208 provides : “A person who performs labor or furnishes materials for or in construction of any railroad, depot buildings, water tanks, or any part thereof, and a person who furnishes boarding on the order of any contractor or sub-contractor, to persons employed by them or either of them, in furnishing materials or performing labor for or in construction of such railroad, depot buildings, water tanks, or any part thereof, in addition to his rights under the preceding section shall have a lien for the payment of the same upon such railroad, and such lien shall have and maintain precedence over any lien taken, or to be taken, and shall subsist for one year from the date of filing the attested account hereafter provided for; and if an action is brought to enforce the lien within that time, it shall continue in force until finally adjudicated.” It further provides and points out what shall be done in order to perfect such lien. Sections 3209 and 3210 provide how actions may be brought for the enforcement of liens, provide for notice to the contractor or sub-contractor, and the adjustment of disputed claims, and are merely sections governing procedure. Section 3211 provides as follows: “The provisions of the four preceding sections shall apply to and include any person who furnishes grain, hay, merchandise,. tools or implements, or who repairs any tools or implements, on the order of any contractor or sub-contractor, for their own use, or the use of persons employed by them of either of them, while furnishing materials or labor for or in construction of such railroad; provided, that the amount of such claim shall not exceed the wages of the person performing labor or. furnishing materials, to whom furnished, or the amount found due such contractor or sub-contractor, under the provisions of section thirty-two hundred and seven; and in every such case, the' requirements of section thirty-two hundred and■ eight, as to filing affidavits and giving notices, shall be strictly complied with; and, provided further, that the aggregate of all liens taken and perfected under sections thirty-two hundred and seven, thirty-two hundred and eight, thirty-two hundred and tenand thirty-two hundred and eleven, shall not be in excess of the actual construction contract price of the railroad company. The word ‘owner’ in these sections shall be held and considered as including any lessee, receiver, corporation, company, or persons owning, operating or managing any railroad, with whom or in whose behalf the contracts herein have been made.” While this section in terms extends the provisions of the four preceding sections to such persons as furnish grain, hay, merchandise, etc., on the order of a contractor or sub-contractor for their use or the use of persons employed by them or either of them while furnishing material or labor for or in the construction • of such railroad, it does not enlarge or extend the meaning of the word material as employed and used in the preceding sections, nor does it impose upon the railroad company any personal liability for the claims of persons furnishing the articles therein méntioned, unless a lien be taken therefor agreeably to its provisions. The sole purpose and effect of this enactment, apart from declaring the meaning of the word “owner,” is to provide for the giving of a lien upon the railroad, to the limited extent therein provided, to persons furnishing on the order of a contractor or sub-contractor as aforesaid, any of the articles in said section enumerated, the furnishing of which, but for this statute, would not entitle the person so supplying the same to have or take a lien therefor. The statute is itself, therefore, a legislative declaration that hay, grain, merchandise, tools, etc., are not materials, and that they are not within the intent and meaning of that term as employed and used in the preceding sections. All of the afore-mentioned sections are parts of an act passed by the legislature April 6, 1883 (80 O. L., 99). On April 10, 1884 (81 O. L., 126), the legislature passed an act declaratory of the true intent and meaning of the aforesaid sections, which act reads as follows: “The true intent and meaning of sections thirty-two húndred and seven, thirty-two hundred and eight, thirty-two hundred and nine, thirty-two hundred and ten and thirty-two hundred and eleven of the revised statutes of Ohio, as amended April 6, 1883, is hereby declared to be as follows: Any person or persons who perform labor or furnish material or boarding, under contract, express or implied, with such railroad company, or any of its authorized agents, for the construction of such railroad, or any part thereof, is entitled to a lien for the payment of the same upon such railroad, as provided in section thirty-one hundred ¿nd eight of the above recited act.” In the case of Industrial & Mining Guaranty Co. v. Electrical Supply Co. et al., 58 Fed. Rep., 732, Swan, Judge, reviewing and construing the above enactment, and also Section 3208, Revised Statutes, says: “By Section 3208 of the Revised Statutes of Ohio it is provided that ‘a person who performs labor or furnishes material for or in the construction of any railroad, depot buildings, water tanks, or any part thereof, to a contractor or sub-contractor, * * * shall have a lien for the payment of the same upon such railroad.’ * * * This statute gives a lien upon the railroad only for materials furnished a contractor or subcontractor, for or in the construction of such railroad, depot buildings, and water tanks, or any part thereof. For whatever other structures materials may be furnished, no lien is given under this act.

“The act of April 10, 1884, declaratory of the meaning of Section 3208, above cited, enlarges the list of those entitled to a lien, by enacting that the true intent and meaning of those sections is that ‘any persons who perform labor or furnish material or boarding under contract, express or implied, with such railroad company, or any of its authorized agents, for the construction of such railroad, or any part thereof, is entitled to a lien for the payment of the same upon such railroad, as provided in Section 3108 (?) [3208] of the above recited act/ The only effect and purpose of this latter act was to give a lien under Section-3208 as well to persons furnishing materials directly to or performing labor under contract with a railroad company, as to those who dealt with contractors and sub-contractors, who were protected by Section 3208. Neither act, however, purports to give a lien-upon a railroad for anything not used in its construction as a railroad or that of its depot buildings or water tanks.” That the general rule of construction is, that statutes giving a lien upon the railroad for materials furnished, should be limited to materials that are furnished for and to be used in the construction of the road, so as in a sense to become a part of it, would seem to be well settled by a uniform line of decisions, of which we cite the following as a type:

Central Trust Co. v. Texas & St. Louis Ry. Co., 27 Fed. Rep., 178; Dudley v. Toledo, Ann Arbor & Northern Michigan R. R. Co., 30 Am. & Eng. R. R. Cases, 236; Stewart Chute Lumber Co. v. Missouri Pacific Railroad Co. et al., 33 Neb., 29; Basshor & Co. v. Balto. & Ohio Railroad Co., 65 Md., 99; Ferguson et al. v. Despo et al., 8 Ind. App., 523; Knapp et al. v. St. Louis, Kansas City & Northern Ry. Co., 6 Mo. App., 205. Having regard, then, for the well-defined. and established meaning of the term as employed in the statutes, it must be held that the hay, grain, straw and feed furnished by Mehaffey to Overstreet & Styles, were not materials either within the meaning of the statute or the intent and language .of the telegram posted by the Pennsylvania Company, upon which this suit was predicated. And if not materials, then Mehaffey’s claim for the articles so furnished was not within the terms of the telegram, and the sending and posting of said telegram — there being no allegation of fraud or attempt to mislead thereby — created no obligation against, neither did it impose any liability upon, the Pennsylvania Company to protect or pay Mehaffey’s claim, or any claims of like character. Whether then Mehaffey, as averred in his petition, because of his reliance upon said telegram, did not, until the bringing of the present suit, institute any legal proceedings to secure the payment of his claim, and forbore the filing of an affidavit with the recorder of Allen county to perfect his lien against the railroad company for the articles furnished and supplied by him to Overstreet & Styles, becomes wholly immaterial, for the reason that such facts, if proven in the present case, would in no wise either change or enlarge his rights against the railroad company. There being then in this case no liability on the part of the Pennsylvania Company to Mehaffey, except such as can rightfully be predicated upon the sending and posting of the above mentioned telegram, and Mehaffey’s claim not being covered by, or within the terms of, said telegram, it follows that he is without right to recover in this case, and the trial court should have sustained the motion of counsel for the Pennsylvania Company — made at the close of the evidence — and should have directed a verdict in favor of the defendant company. Not having done this, but having overruled said motion and submitted the case to the jury, the court should then have given to the jury above request No. 1, as asked by counsel for the Pennsylvania Company.

Upon an application for a rehearing in this case, it is stated by counsel for defendants in error that certain of the items of Mehaffey’s claim referred to in “Exhibit A” attached to his petition, amounting to $21.1-0, are labor claims, and therefore within the express language and letter of the above telegram. And it is claimed that as to these items at least, Mehaffey is entitled to recover in this case. It is perhaps a sufficient answer to this claim to say, that Mehaffey’s petition in the present case contains no allegation that these claims, or any of them, were labor claims, nor are they so denominated or described in Exhibit A attached to said petition. Mehaffey’s claim as shown by the averments of his petition, and as exhibited by schedule A thereto attached, is one •for hay, grain, straw and feed furnished by him to Overstreet & Styles, or to other persons on their order and for which they were to pay. He does not ask, nor is he entitled in this case, to recover as owner or assignee of an}? claim for labor. There is a further, and we think equally conclusive, answer to this suggestion of counsel for defendant in error, which is, that where, as in this case, a railroad contractor gives to a laborer in his employ an order upon a third party, by which such laborer obtains from said third party goods or merchandise to the amount of such order, the transaction is one of mere novation, whereby a new debt is created and the original debt, to the extent of the order, cancelled and paid, and it can not in law be treated as an assignment pro tanto of the laborer’s claim to the person furnishing the goods or merchandise upon said order, so as to enable the latter to proceed against the railroad company under the statute as one owning and holding a claim for labor. In view of the conclusions above reached, it is unnecessary to dispose of the other questions argued, and they are not here considered. The judgment of the circuit court is reversed, and judgment will be entered for plaintiff in error upon the undisputed facts.

Reversed and judgment for plaintiff in error.

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