text:
    The State v. Moore.
    1. A. company of another state organized for “ insuring lives on the plan of assessment upon surviving members,” without limitation, does not come within the class of companies provided for in- section 3630 of the Revised Statutes. That section does not embrace companies insuring the lives of members for the benefit of others than their families and heirs.
    2. The supplementary act of April 12, 1880 (77 O. L. 178), does not enlarge the class of companies provided for in said section, but' merely, prescribes the regulations, under which such companies, whether domestic or foreign, may do business in the state, and subjects them to. additional supervision.

      Mandamus.
    This is ah application by the state on the relation of the Fidelity Mutual Aid Association, a corporation organized under the laws of the state of Pennsylvania, for a mandamus against Charles H. Moore, the superintendent of insurance of this state, to require him to issue a certificate to the relator, to the effect that it has complied with the laws of this state “ regulating corporations, companies or associations organized for the mutual protection of its members within this state.”
    The relation shows that the relator was organized under section 37 of the act of the legislature of Pennsylvania, approved May 1, 1876, which is averred to be as follows: “ Companies insuring lives on the plan of assessments upon surviving members, may be organized in the same manner as provided in this act for the organization of mutual fire insurance companies; and the provisions of the act to which this is supplementary shall not apply to said companies, and companies heretofore organized, if their business is transacted in accordance with the provisions of their respective chai’ters, whether with or without capital stock, guarantee, capital, or accumulated reserve, in lieu of capital stock: provided, however, that each of said companies shall be required to exhibit an annual statement to the insurance department, which shall be published in the annual report of the insurance commissioner, of the amount, if any, of its capital stock ; and also of .all of its assets, assessments and liabilities, and to answer such interrogatories as the insurance commissioner may require, in ■order to ascertain its character and condition.
    “ For this purpose the said commissioner may at any time institute an examination of the affairs of any such company, as is provided in the case of mutual insurance companies, by the .act to which this is supplemental; provided, - also, that no part ■of such assessment upon surviving members shall be applied to any other purpose than the payment of death losses, unless the amount intended for other purposes is specially stated in the notice of such assessment, and the object or objects for which it is intended; provided further, that all policies or certificates issued by said companies shall state that the company issuing the same is not required by law to maintain the reserve which life insurance companies are required by the act to which it is a supplement.”
    The scheme and mode of doing business by the company is determined by its by-laws, a copy of which is annexed to the relation, and which are averred to be still in force and to govern the condition of its membership. Article 1 is as follows: “ The object of this association shall be to secure to those having an interest in the lives of deceased members a specified sum of money, by assessment on surviving members.”

      “ Art. 17. An assignment of a membership and policy of insurance shall be void unless assented to in writing by the president or treasurer of the association.”

      Batemam, $ Ho/rper and E. B. Jeioett, for plaintiff.

      George K. Hash, attorney-general, for defendant.
   White, J.

The relator is a life insurance company, organized under the laws of the state of Pennsylvania; and the question raised by the attorney-general on behalf of the defendant, is, whether it is entitled to do business in this state without complying with section 3604 of the Revised Statutes.

The business of life insurance in this state is regulated by statute. These regulations are found in chapter 10 of the Revised Statutes, commencing with section 3587, and in certain amendatory acts.

The relator, from the nature of its organization, claims to be exempt from the operation of section 3604, and to be entitled to carry on business in the state under section 3630, and section 3630 e, of the supplementary act of April 12,1880. 77 Ohio L. 181.

The character of the company or association authorized to do business under section 3630 is thus described in the section : “ A company or association may be organized for the purpose of mutual protection and relief of its members, and for the payment of stipulated sums of money to the families or heirs of the deceased members of such company or association, and may receive money, either by voluntary donation or contribution, or collect the same by assessment on its members, . . . . ; and such association shall not be subject to the preceding sections of this chapter.”

It is companies and associations of this character alone that are exempt from the operation of the preceding sections of the act; and this exemption is allowed on account of the limited nature of the life insurance they are authorized to assume, being confined to insurance for the benefit of the families and heirs of members.

The exemption is not enlarged by the supplementary act of April 12,1880, already referred to. Section 3630 a of that act only embraces companies or associations organized under the laws of this state “ for the purpose of doing business under the provisions of section 3630, or for the purpose of doing such business as is contemplated by said section.”

The object of the act is to prescribe the regulations under which such companies or associations may do business, and to subject them to additional supervision.

Section 3630 e of the supplementary act does not enlarge the class of companies or associations, but merely prescribes what such companies or associations, organized under the laws of any other state, shall be required to do before they are permitted to do business in this state. They are required to comply with the laws of this state regulating like companies and-associations organized in this state, and obtain from the superintendent of insurance a certificate of such compliance.

The statute under which the relator is organized, and the by-laws under which its business is carried on, authorize it to engage in the business of “ insuring lives on the plan of assessments upon surviving members,” without other restrictions than that policy-holders shall have an interest in the lives of members.

Companies of this state cannot engage in the business of life insurance thus unrestricted, under section 3630 of the Re.vised Statutes; nor can companies organized under section ■3587 to insure lives “on the mutual or stock plan,” without furnishing security for the assured, as provided in section 3593. The sectionTast named relates to domestic companies organized under section 3587; but the equivalent provision applicable to similar companies of other states is found in section 3604.

The law of comity which the relator invokes in support of his application, is fully satisfied when foreign companies áre permitted to do business in this state upon the terms prescribed for domestic companies.

The writ must therefore ie refused.

Okey, C. J., did not sit in this case.


source: Caselaw Access Project

author: Longworth, J.

license: Public Domain

text:
    Insurance Company v. Insurance Company.
    Where an insurance company, after having taken a risk and reinsured in another company to indemnify itself against loss on its • policy, discharges it's liability by the payment of a less sum than that for which the original insurance was effected, the sum so paid by it will be taken as the amount of damage sustained, and the measure of indemnity to be recovered from the reinsuring company; provided such sum is within the amount of'the reinsurance policy, and does not exceed the amount of actual loss, and such policy contains no condition for prorating loss or limiting liability.
    Ebror to the District Court of Cuyahoga County.
    The petition alleged, that on the 10th of May, 1871, the plaintiff, the Commercial Mutual Insurance Company, issued its policy of insurance, causing $20,000 to be insured upon the body, tackle, apparel, and other furniture, of the schooner called the “John Burt,” from noon of: May 6, 1871, to noon of December 5, 1871; that on the same day, the defendant, the Detroit Fire and Marine Insurance Company, on account of the Commercial Mutual Insurance Company — loss, if any, payable to them — made re-insurance, and caused $5,000 to be insured upon said schooner, from noon of said May 6, to noon of said December 5. That in and by said policy of re-insurance, the said vessel, with her tackle, apparel and other furniture, was valued at $25,000; and the limit of insurance upon the vessel interest thereby insured, was fixed at $20,000. That with the exception of the names of parties and amount insured, the terms, conditions, and stipulations of said re-insurance policy were substantially the same as those contained in the policy issued by the re-insured company to the owner of the vessel.' That on October lé, 1811, the said vessel was, by the perils and dangers of the lakes, sunken, and so damaged, that she was abandoned as a total loss, and the abandonment was' accepted.
    The answer alleged that before the commencement of said action, the.plaintiff settled and compromised with the owner of said vessel, his claim of $20,000 under the policy issued to him, for the sum of sixty cents on the dollar, to wit, $12,000; and obtained from the owner an absolute release and discharge from all liability under said policy ; that at the time of said settlement and compromise, the plaintiff was not in a bankrupt or insolvent condition ; that in accordance with the terms of said settlement and compromise, the defendant paid to the plaintiff $3,000, or sixty per cent, of the amount insured on said vessel by said policy of re-insurance; and paid the same, in full satisfaction and discharge of all claim against it, under said re-insurance policy.
    To the foregoing answer the plaintiff below demurred generally, and the court sustained the demurrer. The defendant, ‘■not desiring to plead further, judgment was thereupon rendered in plaintiff’s favor for the full amount of'its claim; and at the following term of the district court this judgment was affirmed.

      F. J. JDielcman, for plaintiff in error:
    The plaintiff in error submits, that the re-insurer should participate in the provisions of said compromise; and that it should not inure exclusively to the benefit of the original insurer. The contract between the two companies, interpreted on equitable principles, was, that the re-insurer would indemnify the re-insured, to the extent of $5,000, on a liability of $20,000, or, to the extent of twenty-five per cent, of such liability. The re-insurer fixed that as the ratio of its indemnity to the liability of the re-insured. The risk assumed by the re-insurer was upon the basis that the liability of the re-instired might amount to $20,000; it was virtually a risk upon the implied condition, that such liability might equal that sum.
    From abundant caution, some policies of re-insurance contain the clause “ Loss, if any, payable fro rata, at the same time and in the same manner with the re-insur'ance company.” But the insertion of this clause or its equivalent, is not indispensable to an apportionment of the actual loss between the re-insurer and the re-insured. The true meaning of the contract between these two companies, is, that they should share the risk between them. The doctrine of apportionment is not confined to the domain of equity. Thus, at common law, if a lessor granted part of a reversion to a stranger, the rent was to be apportioned. Co. Litt. 118 a, and in the case of Bashford v. Shaw, 1 Ohio St. 263, the principle was applied to the discharge of a guarantor from liability only fro tanto, when his actual loss from want of notice did not go to the whole amount of the claim guaranteed.
    An agreement by the re-insurer to bear a certain proportion of the risk, is tantamount to an agreement to pay the same proportion of the loss. But, it must be an actual, and not a constructive loss. The defendant in error will insist, that the re-insured company may, to the.extent of the re-insurance, recover not merely what it has paid, but all that it ought to pay, or has become liable to pay. To this we reply, that insurance is a contract of indemnity; and anything which tends to show, that an assured can recover beyond his actual loss, is against the very principle of the contract. Being a contract of indemnity, it may be, that as soon as the loss has happened, the re-insured may look to the re-insurer, without first paying the loss. But, when the re-insured company has gone forward, and discharged its liability, so that the owner of the property has no longer a claim upon it, then the liability of the re-insurer is to be measured, not in proportion to the original loss, but in proportion to the amount which has been paid by the first insurer, to settle and discharge the claim of the owner of the property. When the liability has become actually discharged, by the payment of a sum less in amount, it is difficult to perceive, on principle, why the sum paid in discharge of the liability should not be taken as the amount of damage sustained, and as the standard for determining the amount of indemnity to be recovered under the contract.
    These views are sustained by the recent and well-considered case, Illinois Mut. Fire Ins. Co. v. Andes Ins. Co., 67 Ill. 362, in which the nature of the contract of re-insurance and the liability of the re-insurer are clearly set forth.
    There is nothing in the nature of the contract of re-insurance, which should distinguish it from any ordinary contract' of indemnity against liability. Where that liability has been compromised, then the measure of damages must be no greater than the amount which the party to be indemnified has paid. And, where the guarantor is to pay a certain proportion of that liability, in case of loss, he should not, we submit, be held to pay more than the same proportion of the amount actually paid by the party indemnified, in discharge of his liability.
    These principles are recognized in the following authorities : 1 Phillips on Insurance, p. 207, § 374; Tate v. Bool, 9 Ind. 13; Schooley v. Stoops, 4 Ind. 130; Child v. Eureka Powder Works, 44 N. H. 354; Osgood v. Osgood, 39 N. H. 209; Haseltine v. Guild, 11 N. H. 390; Swift v. Crocker, 21 Pick. 241; Cushing v. Gore, 15 Mass. 69; Little v. Little, 13 Pick. 426; Churchill v. Hunt, 3 Denio, 321; Administrators of Pond v. Warner, 2 Vt. 532; Sedgwick on Damages (4 ed.) 35, 358.

      Samuel F. Williamson, for defendant in error:
    The plaintiff in error insists that because the defendant in error paid only sixty per cent, of the amount of the policy, the re-insurer should pay the same proportion of the amount insured by it. There might be ground for argument in favor of this claim if either of two things were true, viz.: that the Commercial Mutual Company had paid less than the amount of reinsurance, or that the policy contained the clause usual in fire insurance policies, “ Loss, if any, payabl&pro rata, at the same time and in the same manner with company re-insured but as neither is. true, the plaintiff has hot the slightest ground to stand upon. Home v. Ins. Co., 1 Sandf. 137; 2 N. Y. 239; Blackstone v. Ins. Co., 56 N. Y. 104; Ins. Co. v. Cashon, 41 Md. 59.
   Longworth, J.

The original insurer became liable to the owner of the vessel for a total loss, but actually paid him only $12,000, being sixty per cent, of the amount of the policy, in full discharge of its liability. The whole amount of re-insurance was $5,000. Shall the re-insured company recover the full, amount of its policy, or only a pro rata part of the latter sum, at the rate of sixty cents on the dollar ?

The contract of insurance has always been regarded as one of indemnity; the object ■ being to protect the insured from any. and all damage occasioned by the happening of the loss insured against, not exceeding the amount of the policy.

Ee-insurance is thus defined by Mr. May : It is a contract of indemnity to the re-insured, whatever be the subject-matter, and binds the re-insurer to pay to the re-insured the loss sustained in respect to the subject insured, to the extent for which he is re-insurer, and not necessarily differing in form from an original insurance.” May on Insurance, § 11. In the ease before us the policy does not differ in form from the original policy. Although it may be true, as I am informed it is, that policies of reinsurance generally contain a condition that the loss, if any, shall be payable pro rata, at the same time and in the same manner with the re-insurance company, .yet no such condition is expressed in the policy before us. Is it to be implied ? To answer this question we must have a clear idea of the nature and object of such a contract. Parsons, in his work on Marine Insurance, vol. 1, p. 299, says: In all cases of re-insurance, whatever may be their ground, the re-insured stands, as to his insurers, in the same relation in which the insured, stands to him,” — “ and it may be said in general, that, wherever the insurance is not on the property of the insured, but against risks which he bears, this is in the nature of re-insurance,” (p. 303); and in Phillips on Insurance, § 374, this definition is given : “ Re-insurance is a contract whereby one party, called the re-insurer, in consideration of a premium paid to him, agrees to., indemnify the other against the risk assumed by the latter, by , a policy in favor of a third party.” And it has been held that the original assured cannot assert any interest in a policy of reinsurance. Herkenrath v. Ins. Co., 1 Barb. Ch. 363.

If it be true, then, that it is the ris/c which is insured against, and the contract is intended to furnish complete indemiit/y, it is difficult to understand any reason why, when such risk has become a certainty, and the reinsured has actually sustained a loss, he is to be indemnified oAy partially and not completely ; at least to the extent of the amount named in the policy of re-insurance.

Upon this subject, there are but few adjudged cases. None are to be found in the English books. Erom a very early day re-insurance has been interdicted in that country by act of parliament (19 Geo. 2, ch. 37, § 4). Mr. Arnold states that this statute arose from the fact that re-insurance had come to be, employed as a mode of speculating in the rise and fall of premiums, and the legislature foresaw that it might be used as a cover for wager policies. 1 Arnold on Ins. 291. Andree v. Fletcher, 2 T. R. 161, is an emphatic declaration of the meaning and force of this statute. Whatever may have been the reasons for its adoption, however, it has certainly never been recognized as a part of the common law of this country. Our courts have refused to so regard it, or to find anything in reinsurance contrary to public policy and fair dealing. Upon this subject Mr. Justice Sedgwick said, in the early case of. Merry v. Prince, 2 Mass. 176, That a contract of re-insurance is not prohibited by the principles of the common law is admitted by the parties. It is a contract which, in itself, seems perfectly fair and reasonable, and might be productive of very beneficial consequences to those concerned in this important branch of commerce ; but because it was much abused, and turned to pernicious purposes, it was prohibited by an act of the parliament of Great Britain.” In this case he goes on to show conclusively that the principle of that statute has never found a place in the insurance law of the United States. See also Merchants' & M. Ins. Co. v. Washington Ins. Co., 1 Handy, 408, 425. This will serve to explain the fact that the English reports are barren of authority upon the subject under investigation.

Since the decision of the French court of admiralty at Marseilles in December, 1848, cited in Emerigon, Traité des1 Assurance, Meredith’s translation, 202 (but no other report of which I have been able to find), it has been uniformly held, that, where the first insurer becomes insolvent, and, on a compromise with his creditors, pays only a certain percentage of the loss, the re-insurer is, nevertheless, bound to pay the re-insured the full amount of the loss to the extent of the re-insurance. The most carefully, considered case, and, perhaps, the leading case upon this subject, is Hone v. Mutual Safety Ins. Co., 1 Sandf. 137, subsequently affirmed in 2 Comstock, 235. In this case the decision of the French admiralty court is followed, and the court repeat with approval the language of Emerigon and Roccus to the effect that the re-insurer is bound to pay the whole loss which is incurred by the first insurer.

Boulay Paty and Alanzet, two distinguished modem French authors, are also cited as speaking to the same effect.

In Blackstone v. Allemannia Ins. Co., 56 N. Y. 104, the same doctrine is declared to be definitely settled. See also, to. same effect, Ins. Co. v. Cashow, 41 Md. 59; and Eagle Ins. Co. v. Lafayette Ins. Co., 9 Ind. 443.

If it be true, then, that, the re-insurer is liable to the re-assured (to the extent of the sum named in the policy) for the full amount of the loss, for which only a liability has attached to the original insurer, but which he has not paid and cannot pay on account of insolvency, how much more must it be true that such obligation exists where the re-assured has not only incurred a liability but has actually paid the full amount for which he asks indemnity % If there existed room for doubt as to how this question should be answered, the answer would be found in the decision of Ill. Mut. Ins. Co. v. Andes Ins. Co., 67 Ill. 362, which, as far as I am able to understand it, is indistinguishable from the case at bar. In that case the element of insolvency did not exist. The original insurer was liable to pay to the insured the sum of $6,000, in consequence of the loss .of the subject-matter insured, but actually paid. only $600, in full discharge of the liability. The amount of the re-insurance was $2,000. It was said by the court that the re-assured would have been entitled to recover $600 had there, not been a clause in the policy prorating the loss.

The claim of plaintiff in error is based upon the theory that, in respect to the subject-matter of insurance, the re-insured and the re-insurer are engaged in a common venture, and ought therefore to bear the loss in ratable proportion. In the light of the authorities cited, this view is wholly untenable.. It /presupposes a certain privity of contract to exist between the original insured and the re-insurer, the existence of 'which is denied by every authority which has spoken upon the topic. 1 am content to close this subject by quoting the language of Emerigon: “ The re-insurance is absolutely foreign to the original assured, with whom the re-insurer contracts no sort of obligabion.” Traité des Assurance, Meredith’s Translation, p. 201.

Judgment affirmed.


text:
    Steubenville v. Culp.
    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 (66 Ohio L. 170, 184), is not entitled to wages during the period of such suspension, notwithstanding the council afterward declared the cause of suspension insufficient.
    Error to the District Court of Jefferson County.
    Defendant in error filed his petition in the court of common pleas of Jefferson county against the city of Steuben-ville, on appeal from the judgment of a justice of the peace, to recover $128, which he claimed to be due him for wages as a policeman between tbe 30th of April, 1877, and the 4th of July, 1877.
    To his petition the city answered as follows:
    “ The said defendant, for answer to the petition of the plaintiff, says, that on the 6th day of June, a.d. 1876, the plaintiff was appointed by the mayor of said city of' Steubenville, by and with the consent of the council of said city, a day policeman, in pursuance of the ordinance of said city, and continued in the discharge of his duties as such until the 8th day of May, a. d. 1877; that his compensation as such policeman was two dollars per day, and that his compensation was fully paid him by the defendant up to and including the 30th day of April, a. d. 1877; that on the 8th day of May, a. d. 1877, the said plaintiff was by the mayor of said city of Steuben-ville, in the discharge of his duties as mayor, suspended from his position as said policeman, until the next meeting of the council thereafter; that he remained under such suspension and did not discharge any duty as policeman from the 8th day of May until the 22d day of May, 1877; that at a regular meeting of the council of said city, held on the 22d of May, 1877, the said mayor reported the said suspension of the plaintiff to the council aforesaid, together with his reasons therefor, and that by a vote of the said council at said meeting, the said reasons so submitted by the said mayor were deemed insufficient; that on the 23d day of May, a. d. 1877, the plaintiff was again by said mayor, in the discharge of his duties as mayor, suspended from his position as policeman until the then next regular meeting of the said council, and remained under such suspension and discharged none of the duties of policeman from that day until the 6th day of. June, 1877, when, at a regular meeting of the council aforesaid, the fact of such suspension, together with the reason therefor, was reported by the said mayor, and the said council then, without any trial, by a vote, determined that the reason submitted by the said mayor was insufficient; that afterwards, and on the 6th day of June, 1877, the said plaintiff was again, by said mayor, in the discharge of his duties as mayor, suspended from his position as said noliceman, and remained under such suspension, diseharg ing none of the duties of said policeman, until the 4th day of July, 1811, at which time the ordinances under which he was appointed were, repealed by said council; that upon the occasion of each of said suspensions, the position of policeman, for .' which plaintiff is claiming compensation, was filled by the appointment of said mayor, until the next regular meeting of said council, and the duties of said position were discharged by the person so appointed during all the time the plaintiff was so suspended, who is now claiming compensation therefor, but said plaintiff was always ready and willing to perform said services.
    “ This defendant says it is not indebted to plaintiff in any manner or form, except the sum of $19, for which it offered to confess a judgment before the justice of the peace before whom the case was tried, unless the facts above set forth render it liable; and it prays that it may be discharged from the payment of any part of the claim of the plaintiff, except that $19 aforesaid, and that it may recover its costs made since said offer to confess judgment.”
    To this answer no reply was interposed. At the trial it was agreed that any sum the plaintiff might recover for services rendered the defendant as a policeman, after the 31st day of May, a. d. 1811, should not in any manner affect the offer of the defendant in writing, to confess judgment for the sum of $19, and the cost made up to the time of the offer, as appears by the transcript' of the proceedings had before the justice in this action, and that, in case the plaintiff failed to recover more than $19, for services rendered by him from the 1st to the 31st days of May, both inclusive, judgment should be rendered against him for all costs-made since said offer to confess judgment.
    The plaintiff below thereupon introduced in evidence the ordinance of council authorizing the mayor to appoint policemen, and it w7as agreed that under this authority the appointment was made. No further testimony wras offered, and, the case having been submitted to the court, judgment wuis rendered in favor of the plaintiff for the full amount of his claim. This judgment was afterwards affirmed in the district court, and the latter judgment is now before us for review.

      A. H. plaintiff in error:
    By the provisions of the municipal code of 1877, sections 210, 211, 121, the mayor had authority to suspend.
    An appointment to office is not a contract. The plaintiff below accepted the appointment subject to the provisions and conditions of the statutes and ordinances, and whilst he should be permitted to discharge the duties of his appointment, he would be entitled to- the compensation provided by the ordinance for such services. Smithy. Mayor, cbe., 37 N. Y. 518. When Culp accepted the appointment of policeman, he took it subject to the power of the mayor to suspend him, as provided by the statute, and the power of the council to remove him at pleasure. When he was suspended by the mayor, his office became, during tlie period of suspension, vacant. He was not, during the time of its vacancy, a policeman. The vacancy in the office was filled'by the mayor, and the person so appointed by the mayor was, for the time being, policeman, appointed by competent authority, and entitled to discharge all the duties of the office, and to all the emoluments thereof. The office could be filled by one person only ; but one salary for the office can be paid by the city, for the same period, and that must be paid to the person who filled the office and discharged its duties during the period. Culp was, by legal authority, deprived of discharging any of the duties of the office, and another person, by legal authority, was the incumbent of the office, and entitled to all the emoluments thereof. Westerberry v. Kansas City (April term, 1877); Auditor v. Benoitt, 20 Mich. 176; Primm v. Carondolett, 23 Mo. 22; State v. Davis, 44 Mo. 131.

      John F. Oliver, for defendant in error:
    • This defendant in error claims the salary as a policeman during the whole time he served, including the time whilst under said suspension, on the principle that he always. considered himself no less an officer of the law (during the suspension), and that he was liable to be called upon as such at any time by the mayor to perform active duty ; and this liability, to be so called, never permitted him at any time to absent himself from the easy call of his superior officer; nor did it permit him to undertake any other vocation or business in life, which would interfere with his duty to the city as a policeman, until released from this unfortunate position, where he was placed, by this contest between -the mayor and the council, as it were, between the upper and nether millstone. He claims this pay on the principle that the council nor any other authority ever declared that he had forfeited the same by any neglect, misconduct or negligence of his official duties. He claims this pay on the principle of the analogous case of a military officer, who can only lose his pay by sentence of a regular court, however long he may be under arrest.
   Longworth, J.

By the laws in force in the year 1877, (Municipal Code, §§ 205, 209, 211,121, — 66 Ohio L. 184,170), the mayor was authorized to suspend any policeman for “ neglect of duty, misconduct or other sufficient cause, ” until the next regular meeting of council, and to appoint other persons to fill the temporary vacancy caused thereby. Beyond this his power did not extend ; the right to remove from office being in the council alone.

Two questions arise for our consideration: first, had the mayor authority to make the suspension complained of? and if so, second, what is the effect of such suspension upon the policeman’s right to wages during the period of suspension?

It is clear that the mayor’s authority to suspend is limited to cases in which there exists sufficient cause for its exercise— it ought not to be exerted from mere whim or caprice, or for personal or political reasons. In the case before us, the answer alleges that the suspension was made by the mayor in the discharge of his duties as mayor.” No reply is interposed, and the allegations of the answer are taken as confessed. In the absence of averment to the contrary we are bound to presume that the facts justified the official action of the mayor, and that the suspension was for sufficient cause. No doctrine is better ■established than that the acts of an officer, within the scope of his powers and authority, are presumed to be rightly and legally performed until the contrary appears. By the terms of the statute, however (§ 121), this suspension terminated with the next regular meeting of council, and that body having declined to remove Culp, having declared the reasons for his suspension insufficient, he became thereby reinstated in office. This took place twice, as shown in the answer, and on each occasion the mayor forthwith suspended him again.. It nowhere appears what was the cause, or causes, of these suspensions ; and if it be true, as claimed, that the mayor had no authority to suspend a second time for a cause which the council had declared insufficient, then we are bound to presume that the subsequent suspensions were for other and different causes. Taking the averments of the answer to be true, we must conclude that the plaintiff below was legally suspended from office from May 8, 1877, to July 4, 1877, because, if there existed sufficient cause, in fact, for the suspension, the declaration of council that such cause did not exist, would not have such a retroactive effect as to render it invalid during the time of its continuance.

Second. Was he entitled to wages during this period ? In Smith v. Mayor of New York, 37 N. Y. 518, it was held that no claim could be brought for salary or perquisites against a municipal corporation, covering any period when the complainant was not actually in office, for the reason that salary and perqrdsites are the reward of express or implied services, and therefore cannot belong to one who could not lawfully perform such services. To this extent the doctrine of the case cited was announced in Auditor v. Benoist, 20 Mich. 176; Shannon v. Portsmouth, 58 N. H. 183; Attorney General v. Davis, 44 Mo. 131; and is clearly laid down and justified in-the later case of Westberg v. City of Kansas, 64 Mo. 493. Indeed, I have been unable to find any case in which a contrary rule has been upheld. Offices are held, in this country, neither by grant nor contract, nor has any person a vested interest or private right of property in them.

The statute speaks of the suspension creating a vacancy, and provides how that vacancy shall be filled. If the office is vacant it becomes, as to tbe suspended person, for tbe time being, as though it did not exist, and as to tbe public tbe person appointed to fill such vacancy is tbe sole incumbent of tbe office.

The court below therefore erred in rendering judgment for mor¿ than the amount admitted to be due.

Judgment reversed.

Okey, C. J., concurs, but expresses no opinion except as to tbe question stated in tbe syllabus.


author: MoIlvaine, J.

text:
    Railroad Company v. Telegraph Company.
    1. A railroad company, having a line of telegraph poles and wire, granted to a telegraph company, the privilege of placing another wire on the poles “for general telegraphic correspondence,” and of establishing telegraph stations at points along the line as it might think proper, but reserving to the grantor all local telegraph business, “ it being understood and agreed between the parties,” that the telegraph company ••should be entitled only to the business of sending such messages as might be received at any of its stations destined for stations on other ■telegraph lines connected at points where it had stations, or such mes.sages as might be received from other lines connected at points where it had stations destined for its stations, or other lines connected at points where it had stations, with a further agreement for prorating as to business re-telographed between the parties :

      lMd,í. The right acquired by the telegraph company in the business of .the line, '.other than local business, was not exclusive. 2. The railroad company was not precluded from placing another wire upon its poles either forits.own use or the use of another party.
    2. Equity will not compel specific performance, where the benefits of the contract cannot .be realized in accordance with its terms. Hence, where a .railroad .company, having a line of telegraph, grants the use of its poles to a.telegraph company on certain conditions and stipulations in favor .of the .grantor, which are ultra vires, an injunction will not be granted whereby tbe grantor will be required to perform other stipulations made in 'consideration of such void stipulations.
    Error to tbe District Court of Hamilton County.

      The original action was brought by the "Western Union Telegraph Company against the Marietta & Cincinnati Railroad Company, as re-organized, plaintiff in error, and the Atlantic and Pacific Telegraph Company, and the Baltimore & Ohio Railroad Company, to enjoin the defendants from placing an additional wire on the line of telegraph poles located along the line of the Marietta & Cincinnati Railroad, and from using the same for the purpose of general telegraph business.
    The following statement will suffice to show the nature of the claim of the plaintiff in the, original action. Previous to the 10th of November, 1857, a telegraph line consisting of poles and a single wire had been constructed along the line of said road 'by the owner, the Marietta & Cincinnati Railroad Company. On that day a contract was entered into by and between said railroad company and Jacob Cassneau and others, constituting the Marietta & Cincinnati Telegraph Company, wherein it was stipulated, among other things, as follows :
    “ 1. That the party of the first part grant to the party of the second part the privilege of putting up and maintaining a telegraph wire ‘ for general telegraph correspondence’ on the line of telegraph posts now erected, or occupied by said party of the first part, along their railroad from Marietta to Cincinnati, subject to the terms and conditions hereinafter mentioned.
    “ 2. The party of the second part, while putting up their wire as aforesaid, shall furnish and put up new posts, wherever the present posts are insufficient to sustain two wires with entire security; and if the privilege of putting up another wire upon the line of posts from Cincinnati to Loveland cannot be obtained, then the party of the second part shall put up a new line of posts on said route for the common benefit of themselves and said railroad company.

      “ 3. When the wire of the party of the first part is not in working order the railroad messages shall be sent as far as practicable free of charge by the party of the second part, and in like manner, when the wire of the party of the second part is out of order, their messages shall, as far as practicable, be sent by the party of the first part.
    “4. The party of the second part shall be at liberty to establish and maintain telegraph stations at Cincinnati and Marietta and such other points along said line as they may think proper, but all local telegraph business on said line, and the charges therefor shall belong exclusively to the party of the first part, it being hereby understood and agreed that the party of the second part shall be entitled only to the business of sending such messages as may be received at any of their stations on said line destined for stations on any lateral or other telegraph line connecting with the said Marietta & Cincinnati line at points where said party of the second part may have stations; or such messages as may be received from any lateral or telegraph-line connecting with said Marietta & Cincinnati line at points where said party of the second part' may have stations, destined for any of the stations of said party of the second part on their said line, or on any lateral or other line connecting with said Marietta & Cincinnati line at points where said party of the second part have stations. For all messages that may be received by the party of the first part at their stations to be re-telegraphed at stations of the party of the second part to stations on any lateral or other line connecting as aforesaid, and for all messages that may be received at any of their stations by said party of the second part, from stations on lateral or other lines connecting as aforesaid, destined for and that may be re-telegraphed by the party of the second part to points on said line where the party of the second part have no stations, the party of the second part shall be entitled to their proportion of the charge for such messages corresponding to the distance such messages may pass upon their line.
    “ f>. The party of the second part guarantee to the party of the first part the free transmission of messages for or from the officers and employes of the party of the first part, exclusively on railroad business, or telegraph business over the lines of the Western Telegraph Company extending or to extend from Marietta to Baltimore by way of the Northwestern Yirginia Railroad, and from Marietta by way of said railroad to Wheeling, between any stations on said Western Telegraph Company’s lines, and any stations on said Marietta & Cincinnati line.

      “ 6. Said party of the first part hereby agree to permit the agents of the said party of the second part, and also the agent ■ of the said Western Telegraph Company, when traveling on the business of their respective companies, to travel on the cars of said party of the first part free of charge, but at their own risk of personal injury, the agent so traveling producing evidence thereof from some of the principal officers or agents of the telegraph company for which they are so traveling, and said party of the first part agree to transport in their own cars to stations on their line, free of charge, all wire and other material necessary in putting up and working the line of telegraph of said party of the second part.”
    It was also stipulated in article Y of the contract, that the party of the first part, for $300 per annum, should keep the wires of the second party in good working order ; but Ike costs of renewals of both wires, insulators and posts should be equally divided. It was also provided that the.first party, within three years, might purchase “ the wire and insulators ” of the second party, together with its interest in certain contracts with the Marietta Telegraph Company and the Western Telegraph Company, upon terms specified.
    “ 9. But should the party of the first part not make the purchase and take upon themselves the obligations of the party of the second part as aforesaid, then the agreement shall remain in force for thirty years, and thereafter until one party shall have given one year’s notice of a desire to terminate the same, whereupon at the end of said year it shall cease and determine.”
    Afterwards, on August 3, 1859, said contract was altered and amended, among other things, as follows :
    “ So much of the said contract as provides that the party of the first part shall keep the wire of the second party in good working order for a compensation of three hundred dollars per annum, and so much as reserves to the party of the first part the right to purchase the interest of the party of the second part in their line of telegraph shall be and they are hereby annulled.

      “ In lieu of said provisions and in modification of certain other provisions of said contract the following articles are mutually agreed upon and adopted, viz.:
    “ 1. The party of the second part shall hereafter keep their own wire and also the wire of the party of the first part in good working order, with the same conditions and qualifications as have been heretofore applicable to the party of the first part under the 7th article of the said contract, except that the said party of the second part shall receive no compensation therefor, except the benefits which may be received from the rescinding or alterations of other provisions of said contract.”
    Subsequently, but prior to the commencement of the original action in June, 1878, the' plaintiff in error succeeded to all the rights of property and franchises of the Marietta and Cincinnati Railroad Company, and the Western Union Telegraph Company succeeded to all the rights of the Marietta and Cincinnati Telegraph Company under said contract.
    In the year 1871, the plaintiff below, with the consent of the railroad company, placed a third wire upon said line of posts for the common benefit of the parties.
    The claim of the plaintiff below is, that the addition of a. fourth wire on this line of poles to be used by another for general telegraph business, is in violation of its rights under said contract.

      Hoadley, Johnson <& Golston and MoGlmüoJc <& Smith, for the plaintiff in error.

      John W. Herron and Wager Swayne, for defendant in error.
   MoIlvaine, J.

It is essential to the right of the Western Union Telegraph Company to the relief granted in the court below, that it acquired under the contract an exclusive right to the-business of general telegraph correspondence on the line of poles described in the contract, except as therein expressly reserved to the railroad company, to wit: the local business. We assume that the parties to this action have sueceeded to the rights and obligations of the original parties to the contract. "What, then, is the true construction of the contract ? "What rights were granted by the railroad company to the telegraph company % By the terms of the contract, the answer is, “ The privilege of putting up and maintaining a telegraph wire ‘for general telegraphic correspondence’ on the line of telegraph posts” along the line of the railroad; and “ liberty to establish and maintain telegraph stations at Cincinnati and Marietta, and at such other points along said line as they may think proper, but all local telegraph business on said line and the charges therefor shall belong exclusively to the party of the first part, it being hereby understood and agreed that the party .of the second part shall be entitled only to the business of sending such messages as ma/y he recei/oed at any of their stations on said line, destined for stations on any lateral or other telegraph line connecting with the said Marietta and Cincinnati line at points where said pa/rty of the second part may ham stations ; or such messages as may be received from any lateral or other telegraph line connecting with said Marietta and Cincinnati line at points where said party of the second pa/rt may ham stations, destined for any of the stations of said party of the second part on their said line or on any lateral or other line connecting with said Marietta and Cincinnati line at points where said party of the second part have stations.” The contract also contains a provision for prorating, as follows:

For all messages that may be received by the party of the first part at their stations to be re-telegraphed at stations of the party of the second part to stations on ¿any lateral or other line connecting as aforesaid, and for all messages that may be received at any of their stations by said party of the second part, from stations on lateral or other lines connecting as aforesaid, destined for and that may be re-telegraphed by the party of the second part to points on said line where the party of the second part have no stations, the party of the first part shall be entitled to their proportion of the charge for such messages corresponding to the distance such message may pass upon their line.”

The plain import of these stipulations is not modified by any other provision in the contract; and it appears to us, that no exclusive light to the telegraphic business over this line, even outside of the local business and such as was agreed to be prorated, was granted to the telegraph company.

By “ telegraph stations” which the telegraph company has the liberty to establish and maintain at points” along the line of the road, we understand is meant ordinary offices for the business of telegraphy at cities or villages along the line of the road; but the grant of this liberty did not exclude the right of the railroad company, either directly or indirectly, to establish and maintain like offices in the same cities and villages. It will be observed, that the telegraph company was not bound to establish stations at all points; nor are we advised as to their action under the privilege thus granted.

Now, it must be further observed, that as to the business of sending messages, other than local business, the telegraph company is limited to “ such messages as may be received at any of their stations,” so' that the railroad company, or any other person authorized by it, may compete for messages, at any city or village, to be transmitted on this line of poles, and on any wire other than those put up by the telegraph company, without interfering with the privilege granted to it. And again, messages received at an office of the railroad company, though the telegraph company may have an office at the place, to be forwarded over other lines of telegraph from points where the telegraph company has no office, are wholly unprovided for by the agreement; and in such business, the telegraph company certainly cannot claim any interest.

As to the “ local business,” the whole of which was reserved by the railroad company, and its interest in the class of business to be re-telegraphed as between the parties, and for which the compensation was to be divided ratably between the parties, as well as the business left open to competition, and that which was not provided for in the contract, we can find no objection in the contract against the right of the railroad company to transfer the same to a third person, or to its right to place an additional wire upon its line of poles, or to authorize another to do so, for the purpose of transmitting such messages. It is reasonable to assume that such a right was within the contemplation of the parties; and it is quite sure that no stipulation was made to prevent its exercise.

Inasmuch, therefore, as the right of the plaintiff below, to the injunction prayed for, rests on the ground that it had ae-1 quired the right to the sole use of the wires upon this line of poles for -transmission of public or general telegraph correspondence, except local business, and as that claim cannot be maintained by a just construction of the contract, it follows, that the judgment below must be reversed.

Another view of the case leads to the same result. Neither the Marietta and Cincinnati Railroad Company, nor the plaintiff in error, ever had, or have the capacity to engage in the telegraph business for the public generally, whether local or general in its character. The only extent to w'hich either of them could engage in the business of telegraphy was such as. might be necessary or convenient to the management of the railroad and” its business. For this purpose only can a railroad company in this state erect and maintain a line of telegraph poles and wires. True, having constructed such line for such use, it is competent for the railroad company to grant to another, having capacity to engage in the business, the right to use such poles and wires for the purpose of general telegraphy, and the right so transferable may be exclusive or partial as the parties may agree.

But when the right transferred is partial only, as in the case before us, and the consideration is so mixed and modified by rights and privileges reserved by the grantor that it would be unreasonable to suppose that the grant would have been made without the reservations, while in fact and in law, the rights and privileges so reserved cannot be exercised or en joyed by the railroad company for want of capacity to exercise or enjoy them, a court of equity will not by injunction or otherwise enforce the specific performance of the contract. In such case, where the benefit of the contract cannot be realized according to its terms and the expectations of the parties, equity will remit a party who seeks redress for a breach of the contract to such remedies as may be asserted in courts of law.

Judgment reversed and petition dismissed.

White, J., concurred in the judgment on the ground stated in the second proposition of the syllabus.


author: Johnson, J.

text:
    Wagner v. Railway Co.
    1. In proceedings by a corporation to appropriate private property, there must be a judgment confirming the verdict of the jury, before the corporation is entitled by a deposit of the amount of such verdict, to possession of the property appropriated.
    2. It is within the appellate jurisdiction of the supreme court to allow a temporary injunction where it appears that defendant is doing or threatens to do acts respecting the subject of an action pending, tending to render the judgment ineffectual. Yeoman v. Lasley, 36 Ohio St. 415, followed and approved.
    3. So where the relief sought in the court below was an injunction which was refused, and on error to this court the judgment is reversed for such refusal, this court may, in the exercise of its appellate jurisdiction, proceed to render the judgment which the court below should have rendered.
    Error to the District Court of Cuyahoga county.
    This was an action in the common pleas, to enjoin defendant, a railroad corporation, from taking possession of land belonging to plaintiff and constructing a railroad thereon, without having first acquired the right thereto by appropriation or otherwise.
    The facts are, that the corporation defendant filed its petition against Wagner, the present plaintiff, on August 30, 1881, for the purpose of appropriating the land described in that petition ; that on November 26, 1881, the jury in the case rendered a verdict assessing the plaintiff’s damages for his lands at $27,100; that on November 28, the company filed its motion for a new trial; that on December 12, the company paid into tlie probate court the sum of $27,100, the amount awarded by the jury; that on December 17, five days after having paid the amount into court, and while the plaintiff was still in possession of his lands, defendant entered thereon and made one large excavation therein to erect a pier for the support of its railroad; that on December 19, two days after that, the plaintiff filed in the probate court his proofs of the entry of the defendant on his lands, and its proceedings thereon, and of his written demand for the payment to him of the moneys assessed by the jury; that on December 23, the defendant filed in said court written objections to the payment of the sum of $27,100. to the plaintiff; that on December 24, the probate court heard the parties, granted the motion for a new trial, set aside the verdict, and overruled the plaintiff’s demand for the money, and that no further proceedings have been had in the case; that the defendant, on December 24, desisted from further operations upon the lands, and the plaintiff is still in possession of them. Then he sets forth what property he has there, etc., and avers that the corporation is insolvent, that its property is incumbered to an extent greater than its value, and that if the company or its agents are not restrained they will commit irreparable injury upon the premises, and that he has no adequate remedy at law. He therefore asks that “ on the final hearing of this action the defendant, its contractors and agents, may be enjoined from taking possession of said premises, and constructing or operating its railroad thereon, and that they be in the meantime restrained therefrom.”
    There is an amendment to the petition which is filed by consent, but which does not vary what was stated before by the plaintiff, though going into detail' somewhat more specifically than in the petition as first drawn.
    The common pleas refused to grant the injunction. The case was appealed to the district court, where a like judgment was rendered and the petition was dismissed.
    Error is prosecuted in this court, to reverse that judgment.
    A motion is now made for a temporary injunction to restrain the defendant from constructing its road over the land during the pendency of this proceeding.

      John W. Eeisley, for plaintiff in error.

      Estep, DieJcey <& Sqwier, for defendant in error.
   Johnson, J.

The question is, whether the verdict of a jury, in proceedings to appropriate property, without being con-, firmed by the court, is such an appropriation of the property, where the amount of such verdict has been deposited in the court, as entitles the corporation to take possession of the same for its purposes ?

In this case, after the verdict, the corporation filed a motion for a new trial; after this it paid into court the amount of the verdict; later still, the motion for a new trial was heard, and the verdict was set aside, and a new trial ordered. In this state of case, the plaintiff insists that the land has not been appropriated as required by the constitution, and therefore defendant should be enjoined from entering on his land and destroying its value to him, by constructing its railroad.

On the other hand, the defendant claims, that upon the rendition of the verdict, without any judgment of the court confirming the same, the deposit of the amount of compensation entitles the corporation to possession, even though the verdict may be afterwards set aside, and a new trial be ordered.

In the Bill of Rights it is provided that “ private property shall be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure, or for the purpose of making or repairing roads, which shall be open to the public without charge, a compensation shall be made to the owner in money; and in all other cases where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit in money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”

Then in section 5 of article 13 of the Constitution it is pro: vided: “No right of way shall be .appropriated to the use of any corporation until full compensation therefor be first made in money, or first secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by sncb corporation, which compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law.”

The constitution of 1802, art. VIII., § 4, simply declared that: “ Private property ought and shall ever be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner.” No limitation was imposed as to the character of the tribunal or person that the law should clothe with authority to exercise the right to take such property for the public welfare. Nor was the time when compensation should be made for property taken prescribed. In these and in some other respects, the right of eminent domain is abridged by the provisions cited from the constitution of 1851.

Art. I., § 19, after declaring, that private property shall ever be held inviolate, but subservient to the public welfare, provides that, except when taken in time of war or other public exigency, imperatively requiring its seizure, or for the purpose of making or repairing roads, which shall be open to the public without charge, a compensation therefor shall first be made in money or first secured by a deposit of money.

This compensation must be assessed by a jury.

Art. XIII., § '5, is, if anything, still more explicit as to the power of corporations to appropriate. It provides, that full compensation shall first be made in money, or first secured by a deposit in money; which compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law.

The taking or appropriation of private property is the exercise by the state or by its agents, of the right of eminent domain for a public use. The owner’s right is inviolable, except for a public use, and these provisions impose limitations on the right to take it from the owner and devote it to such use. They are conditions precedent to the exercise of this power.

The compensation must first be ascertained by a jury of twelve men, in a court of record. This means, a jury, subject to judicial direction by a court, as in other cases. This jury is a tribunal, presided over by a court, and, under its direction, bearing tbe evidence upon the issue, and, by its verdict, declaring the truth upon the evidence under -the law as given them by the court (Smith v. A. & G. W. R. R. Co., 25 Ohio St. 91).

Something more than a verdict of the jury is required, before the corporation can deposit the money and demand possession. The jury has no right to appropriate the property. It only fixes, by its verdict, the compensation that is to be made, in the event the land is taken. The constitution contemplates a judicial proceeding, in which the effect of the judgment is to divest the owner of the title and possession of his property, and to invest both, to the extent of the condemnation, in the corporation.

No right’ of possession is divested until the appropriation is complete. The owner’s right to dominion over his land is as inviolable as his ownership or title. The right to the possession passes as an incident of a consummated appropriation. In such a case the right of property and the right of possession are inseparable. To deprive the owner of his right of possession, until the appropriation is made, would be as obnoxious to the constitution as to take the title. If therefore, the unconfirmed verdict of a jury, with a deposit of the money, does not amount to an appropriation, i. e., to a taking of the property from the owner, and vesting the ownership in the corporation, the right to take possession for any purpose in this case does not exist.

Again, the rights of the parties are mutual. Whenever the corporation is entitled to take the land, its former owner is equally éntitled to the money. The right to the money accrues eo instanU with the right to take the land, otherwise compensation would not first be made. The deposit of money in court, is in legal effect, for the land-owner’s use, and belongs to him, as soon as the land becomes the property of the corporation (Mielly v. Zurmehly, 23 Ohio St. 628).

’And this is so notwithstanding either party may prosecute error and reverse the judgment. The final judgment of the probate court completes the appropriation for the purposes of transferring title, but leaves the parties to litigate over the question of compensation. In giving a construction to the chapter of the Revised Statutes relating to the appropriation of private property, these principles must be kept in view. In case of ambiguity or doubt, that construction must be adopted that harmonizes the statute with the constitution. An examination of the sections comprising this chapter leads us to the conclusion, that an appropriation is not made, until there is a judgment of the court confirming the verdict; that no title passes, until the judicial proceeding in the probate court, is ended, that is, until the verdict of the jury is made effective by a judgment.

Section 6414 of the Revised Statutes provides, that appropriations of private property, by corporations, shall be made according to the pi’ovisions of that chapter. Then follow provisions for commencing the proceedings in the probate court, by petition and service, and for the determination by the court, of certain preliminary questions, and among them the right and necessity of making the appropriation. The summoning, impanncling and swearing of the jury is then provided for. They are then under judicial direction, and their verdict when returned is entered of record as in other cases, and unless, for good cause shown, upon a motion for a new trial to be filed within ten days, a new trial be granted, “ the judge shall enter a judgment on such verdict ” (R. S. § 6432). Until such judgment, the verdict is of no more force than verdicts in other civil cases. It must be confirmed. .Such a verdict,- not followed by a judgment of confirmation, confers no title, nor can it be enforced bv process.

Section 6433 provides, that upon payment or deposit of the amount of the verdict and the costs up to the time, the corporation shall be entitled to the “ possession of, and shall hold the property, rights and interests, so appropriated, . . . and the judge shall enter an order to that effect, and if necessary, proper process shall be issued to place the corporation in possession.” This order, adjudging that the corporation, having paid the compensation assessed by the jury, is entitled to take possession and to hold the property, is the final order in the case, and consummates the proceedings to appropriate. Until it is made, no process can issue to invest the new owner with possession. In the nature of judicial proceedings process cannot be issued until there is a judgment to enforce.

To hold that the right to take possession can precede a judgment on the verdict, carries with it the authority to have that right enforced by judicial process. In the case at bar, it would lead to a compulsory ejectment of the owner after the verdict was set aside, and without the owner being first compensated, by a payment to him or by a deposit to which he would be entitled. The anomaly would be presented of enforcing an order transferring title and right to the possession before there was judgment, and in fact, when there was no verdict in the case. The judgment confirming the verdict is the foundation for the right to acquire possession by its payment or deposit.

That these sections contemplate and require a final judgment on the verdict is made clear by an examination of sections 6437, 6440 and 6449.

Section 6437 allows either party to file a petition in error to reverse the final judgment, within-thirty days after the rendition of the verdáet, “ but the corporation may, on the rendition of the final judgment in the probate court, pay into said court, the amount of the judgmentfor compensation and costs therein rendered, and proceed to enter upon and appropriate the property, notwithstanding the proceedings in error; then there must be a “ final judgment,” a judgment for compen-, sation,” as a pre-requisite to a deposit of the money which gives the right to possession.

No reason can be perceived why there is any greater necessity for a judgment under section 6437, than under section 6433, to entitle the corporation to enter upon the land.

Again, on such a deposit, under section 6437, which by law operates as a conveyance of the property, the deposit, by like operation of law, belongs to the land-owner, subject to an obligation to refund any excess over a final verdict, if a new trial is granted, and he may maintain an action therefor. In no other way can his constitutional right to be first compensated be complied with (Mielly v. Zurmehly, supra).

Again, section 6440 provides for proceedings in the common pleas, when the probate judge is interested, to be conducted in the same manner, in all respects, as in the probate court; “ and after final judgment the corporation may, on depositing the amount of the judgment and costs . . . be entitled to enter into possession, &c.”

The construction claimed, makes the deposit on the verdict in the probate court sufficient to entitle the corporation to take possession, while there must be a judgment on the verdict in the common pleas. The law requires the same in both courts. So also sections 6448, 6449, and 6450, provide for proceedings to appropriate. in certain cases, to be instituted by the landowner, and to be conducted in the same manner as if commenced by the corporation.

Here also, there is to be a “final judgment” on the verdict, and if this judgment is not paid, the court will enjoin the use, of the property.

Reliance is placed on section 6436, to support the construction of section 6433 claimed by the defendant. It provides that “ if the amount of the first verdict has been paid into court, the probate judge shall retain the same until the final termination of the second trial.”

This section provides for the disposition of money paid in on a verdict where a new trial is afterwards granted. The judge is to hold it until the final termination of the second trial. Now if the corporation can take the property, and the judge can retain the money until the final termination of the second trial, what becomes of the constitutional provision that compensation must first be made or secured to the owner in money before his property can be appropriated ?

The only construction this section will bear, to make it constitutional is, that the money paid in on the first verdict, which is afterwards set aside, remains the property of the corporation, until the final termination of the second trial; and if the second verdict is less- than the deposit, the excess is returned to its owner, but if greater, the corporation must increase the deposit to equal the second verdict, to entitle it to take the property.

"While this section provides for the disposition of money paid in on verdicts that are set aside afterwards by the probate judge it does not purport to give any right to appropriate the property pending the second trial. It in fact provides for the case at bar, while section 6433 does not. The amount of the first verdict $27,100 is the property of defendant until the “ final termination ” of the second trial; when that trial is finally terminated, not when the second v&rdict is rendered, the deposit, or so much thereof as will equal the second verdict, will become the property of the plaintiff, and his land will be appropriated to the corporation. This entitles the plaintiff to an injunction until the final termination of the second trial.

II. But it is urged that this court has no power, either to grant a temporary injunction, or an injunction as the final judgment, because by article IY. section 2 of the constitution, the original jurisdiction of the supreme courtis limited to quo warranto, mandamus, habeas corpus and procedendo.” This is granted, but it has “ such appellate jurisdiction as may be provided by law.”

By section 5572, Revised Statutes, “ When, during the litigation, it appears that the defendant is doing, or threatens or is about to do, . . . some act in violation of the plaintiffs rights, respecting the subject matter of the litigation, and tending to render the judgment ineffectual, a temporary order may be granted restraining such act.”

This would authorize a temporary order pending the litigation, and is an exercise of the appellate power, which follows the case into whatever court it may be appealed, or taken on ■error, as part of the appellate jurisdiction conferred by law (Kent v. Mahaffy, 2 Ohio St. 498; Yeoman v. Lasley, 36 Ibid. 416).

Section 6726, authorizes this court, in the exercise of its ■■appellate jurisdiction, when it reverses a judgment, to proceed ■to render the judgment the court below should have rendered. In this case the district court should have granted the injunction prayed for until the proceedings which are pending ■in the orobate court are finally determined.

The judgment of the district court is reversed, and an injunction is granted,until the final determination in the probate court of the proceedings now pending therein.


author: White, J.

text:
    Railway Co. v. Lawrence.
    1. Where the construction of a railroad in a street of a city will work material injury to the abutting property, such construction may be enjoined, at the suit of the owners, until the right to construct such road in the street shall first be acquired, under proceedings instituted against such owners as required by law for the appropriation of private property.
    2: In such case it is immaterial whether the fee is vested in the city or in the abutting owners, so long as it is held upon the same defined uses. Railway Co. v. Cumminsville (14 Ohio St. 524), approved and followed.
    Error to the District Court of Scioto County.
    July 3,'“1877, the defendants in error, David Lawrence and others, filed their petition in the court of common pleas of Scioto county to enjoin the Scioto Yalley Railway Company, the plaintiff in error, from constructing its railway along and on Guy street, in the city of Portsmouth, in said county.
    The plaintiffs aver that they are the owners of valuable lots abutting on said street; that said street is dedicated to public use as a street, the fee thereof being vested in said city in trust for said use. They also aver that said railway company has obtained from said city of Portsmouth the right of way, so far as .said city has power to grant the same, to construct and build said railroad over and along said Guy street; that the construction of said railroad and the laying of the track thereof along the said street as contemplated in said grant of the right of way by the said city, and the running of locomotives and trains thereon, will have the effect of rendering the property of the plaintiffs in Guy street to a great extent worthless, and to deprive them of their property in Guy street, and the private rights and easements which they respectively now have in the same. It is also averred that such contemplated use of said street is not only an essential diversion of it to other purposes than those for which it was acquired, but is such an enlargement of its uses as to accumulate materially additional burdens upon the land, and destroy or impair the incidental rights of the plaintiffs appurtenant to their lands abutting on said street, and that the damages resulting therefrom will be irreparable.
    The answer of the defendant put in issue the averments of the petition as to the injurious effects upon the property of the plaintiffs resulting from the construction and operation of the railroad, and relied upon the grant from the city as a bar to- the relief sought.
    On the trial the court found the issues in favor of the plaintiffs, and granted the injunction as prayed for, unless the railroad company, as against the plaintiffs, should first acquire the right to construct said road, under proceedings instituted as required by law for the appropriation of private property.
    On error this judgment was affirmed by the district court, and the present proceeding is instituted in this court to reverse both judgments.

      W. A. IIutoMns, Barmon & Anderson, and G. O. Hunter, •for plaintiff in error :
    The first and principal question presented is this: Under our constitution and laws, where the city council of a city has granted to a steam railroad company the right of way for its track through a public street of such city regularly dedicated to public use by the original proprietor, has the abutting lot-owner such property right in the street as to entitle him, necessarily and as matter of law, to condemnation proceedings, or is his remedy one for damages for any consequential injury he may sustain ?

      ~We maintain that the abutting lot-owner has no right to condemnation proceedings under such circumstances.
    Eor the statutes relating to this subject, see 2 S. & C. 1483, § 6; Id. 1514, § 63; 1 S. & O. 278, § 29. The great weight of authority is, that as to streets, as distinguished from country roads, and when the legal title has vested in the municipal authority, and further, when such municipal authority has been authorized by law to grant the right of way, then the abutting lot-owner cannot require condemnation, but he has simply a claim for damages (Protzman v. Ind. & Cin. R. R. Co., 9 Ind. 467; New Albany & S. R. R. Co. v. O' Daily, 13 Ind., 353; New Albany & S. R. R. Co. v. O' Daily, 12 Ind., 551; Wood v. Mears, 12 Ind. 515. See, also, 10 Ind. 96; 9 Ind. 433; 7 Ind. 479, 522, 711; Milburn v. Cedar Rapids R. R. Co., 12 Iowa, 246; Clinton v. Cedar Rapids R. R. Co., 24 Iowa, 455; Moses v. Railway Co., 21 Ill. 522; Railway Co. v. Heiscl, 37 Mich. 62; 2 Pillon on Municipal Corp. §§ 555-577; Cooley’s Const. Lim. 545-556; 1 Redfield on Railways, 276, 321-325; 2 Id. 406-409).
    Judge Ranney held, in the Cumminsville Street Railway case (14 Ohio St. 523), that the laying down of a track for a street railway in a turnpike road, the grade of which was changed, and when the facts found by the court below showed an injury to the business of an abutting lot-ownei1, connected with his improvements made with reference to the grade of the street, that this constituted the “taking of property” within the meaning of the constitution.
    But even this case recognized the fact that such result did not, necessarily, arise from the laying down of the track of the road, but, on the contrary, that ordinarily no such result would follow.
    It was simply a “ grade ” case, and compensation was the question. "Whether by way of condemnation proceedings or for damages was not mooted.
    That a different means of use of a street is still the same use, and that an abandonment or reverter is not caused even by a radical change in such use, is sustained by the following cases: Malone v. City of Toledo, 28 Ohio St. 643; Hatch case, 18 Ohio St. 92; Jackson v. Jackson, 16 Ohio St. 163.
    The defendants in error were not entitled to an injunction. 1 Redfield on Railways, 318; Sargent v. Railway Co., 1 Handy, 52; Moses v. Railway Co., 21 Ill. 522; Stone v. Railroad Co., 68 Ill. 394; Railroad Co. v. McGinnis, 79 Ill. 269; 29 Ill. 279.

      Moore <& Newman and Thompson & Turley, for defendants in error, filed no brief. .
   White, J.

This casé is governed by the principles laid down in Street Railway v. Cumminsville (14 Ohio St. 524), and we are not disposed to depart from the ruling in that case.

1. As to the claim of the plaintiff in error that the abutting lot-owners will sustain no appreciable damage by the construction of the railroad on the street.

This question was put in issue by the pleadings, and was found by the court below in favor, of the defendants in error. All the evidence is embodied in the bill of exceptions and is brought before us for review. The result of our examination is, that we see no reason to warrant us in disturbing the findings of the court upon the issues of fact.

2. It is also claimed that as.the fee to the street is vested in the city, the abutting lot-owners are not entitled to an injunction, whatever damage or injury may result to their lots, that their only remedy is by civil action against the company to recover for such injury.

The.statute under which the fee of streets is vested in the city provides as follows: “ That all proprietors of lots or grounds in any city or town corporate in this state, who have subdivided or laid out, or who shall hereafter subdivide or lay out the same in lots for sale, shall cause accurate and true maps or plats thereof to be recorded in the office of the recorder of the county in which such town or city may be situated; which maps or plats so to be recorded, shall set forth and describe, with certainty, all grounds laid out or granted for streets, alleys, ways, commons, or other public uses: . . . and such map or plat so recorded, shall be deemed a sufficient conveyance to vest the fee of the parcel or parcels of lands therein set forth and described, or intended to be, for streets, alleys, ways, commons or other public uses, in such city or town corporate, to be held in the corporate name thereof, in trust to and for the uses and purposes so set forth and expressed or intended ” (S. & C. 1483; Chase, 1846).

It seems to us it can make no material difference where the fee is vested, so long as it is held to the same defined uses.

The established doctrine in this state, is, that the abutting lot-owners “ have a peculiar interest; in the street, which neither the local nor the general public can pretend to claim ; a private right of the nature of an incorporeal hereditament, legally attached to their contiguous grounds, and the erections thereon; an incidental title to certain «facilities and franchises, assured to them by contracts and by law, and without which their property would be of little value. This easeme-nt, appendant to the lots, unlike any right of one lot-owner in the lot of another, is as much property as the lot itselfP

In speaking of the rights of the public in the street, in the case already referred to, the court (on p. 549) say : “ It ” (the public) “may regulate and modify the manner of using the street by the public at large, and may, undoubtedly, devote its own interest to the maintenance of new structures, placed in the hands of other agencies, and calculated to enlarge the general purposes for which the highway was originally constructed. But where these new structures, and new modes of travel, devolve additional burdens upon the land, and materially impair the incidental rights of the owner in the highway, they require more than the public has, or can grant, and the deficiency can only be supplied by appropriating the private right upon the terms of the constitution” (See also Pierce on Railroads, 1881, p. 241).

The doctrine laid down in Street Railway v. Cumminsville was subsequently adopted by the general assembly in the act of May 27, 1866, to amend the act of April 10, 1861, providing for street railroad companies (S. & S. 131, 2 Sayler, 958). And there is no reason why abutting lot-owners should not have the same rights against the construction of steam railroads as they have against street railroads.

Judgment affirmed.


author: Okey, O. J.

text:
    Lafferty v. Shinn.
    1. The provision in the Code of Civil Procedure as revised in 1878, by which the period within which a proceeding in error may be commenced is reduced - from three to two years (Code of 1853, § 523 ; 75 Ohio L. 808, § 20 ; Rev. Stats. § 6723), does not apply to judgments which had been rendered whén the act of 1878 took effect, but by force of the act of 1866 (S. & S. 1) the pei'iod of three years, prescribed in section 523, governs as to those judgments.

      2. Where a demurrer to an answer is sustained, but no judgment is rendered or order made which is definitive in its character until a subsequent term, the time within which a proceeding in error may be commenced by the defendant must be computed from the dale of the final judgment or order.
    3. Where an action is brought under the Code of Civil Procedure for the partition of real estate, and the administrator of the ancestor from whom the estate descended to the persons asking for partition is made a defendant, and files an answer and cross-petition setting forth that it is necessary to sell such property for the purpose of paying the debts of such ancestor, and asking for an order of sale, such administrator is, upon proper showing, entitled to such order of sale, and statutes of limitations have no application in favor of such heirs. Taylor v. Thorn, 29 Ohio St. 569, followed.
    Error to the District Court of Adams county.
    On June 25, 1851, Francis Shinn, owner of certain parcels of land in Adams county, died intestate, leaving a widow, to whom dower was assigned in in-lot 35 in West Union. The personal property, and the other parcels of real estate were sold by the administrator for the payment of debts, but the estate, upon settlement in 1854, proved to be insolvent, $400 and upwards remaining due to creditors.
    In 1855, Joseph W. Lafferty purchased of the widow her dower interest and went into possession of in-lot 35, talcing with him certain machinery, and he was also owner of the -larger part of the claims against the estate of Shinn remaining unpaid. He died in 1869, leaving his widow and children in-possession of the premises, and the widow of Shinn died the same year.
    In 18J2, Willie Shinn, grandson of Francis Shinn, filed in the court of common pleas of Adams county, his petition under tlie code of civil procedure for partition of iu-lot 35, in -which suit the other heirs of Francis Shinn, his administrator, and the widow and heirs of Joseph W.- Laffer ty are defendants. The widow and heirs of LafEerty answered, and an answer with cross petition was filed by the administrator of Francis Shinn, setting forth the facts here stated, and asking that the lot be sold and the proceeds applied to the payment of the remaining indebtedness of the estate of said Shinn, above referred to.
    After decision of the cause in the court of common pleas, it was appealed to the district court. In the latter court» demurrers were sustained to the answers and cross-petition, and on September 7, 1875, partition was ordered among the heirs of Francis Shinn ; but as the lot could not be divided without manifest injury to the owners, the premises were appraised, the value being estimated at $400, and Joseph W. Shinn, one of the heirs, elected to take the premises at such valuation, and the same were adjudged to him.
    This petition in error was filed in this court on September 3, 1878, by the administrator of Francis Shinn and the widow and'heirs of Joseph W. LafEerty.
    White, MeKnight c& White, and L. Thompson, for plaintiffs in error.

      F. D. Ba/yless and J. M, Wells, for defendants in error.
   Okey, O. J.

Two questions are presented : first, whether the right to prosecute this petition in error is barred by the statute; and, secondly, whether the court erred in sustaining a demurrer to the answer and cross-petition of the administrator of Francis Shinn.

1. The demurrer to the answer and cross-petition of the administrator of Francis Shinn was sustained at a term previous to September, 1875, But no final judgment was rendered until the September term, 1875, which was held on the 7th day of that month, and hence, in determining whether the proceeding in error is barred, time is to be computed from that day. The petition in error was filed and summons issued September 3, 1878, which is four days less than three years from the time the order of partition was made. The limitation for proceedings in error, under the civil code of 1853 (§ 523), was three years; but by the revising act of May 14, 1878, which took effect September 1, 1878 (75 Ohio L. 808, § 20; Rev. Stats. § 6723), the period was shortened to two years; and as the act of 1878 was in force when this petition in error was filed, and two years had elapsed since the order complained of had been made, it is insisted that the proceeding in error is barred. In support of this claim the defendants in error rely on The Marinda v. Dowlin, 4 Ohio St. 500. There the judgment sought to be reversed was rendered in .February, 1850, when the limitation as to proceedings in error was five years, but the petition in error was not filed úntil December, 1854, and by the civil code of 1853, the time in which such proceeding could be commenced was fixed at three years, as already stated. The court held that the provision in the code applied, and that the proceeding was barred. No doubt that decision rests on satisfactory ground. That “ all courts shall be open, and every person for an injury done him in his land, goods, person or reputation, shall' have remedy by due course of' law,” is ordained in the constitution (art. 1, § 16); and it is not within the power of the legislature to abridge the period within which an existing right may be so asserted as that there shall not remain a reasonable time within which an action may be commenced. Cooley’s Con. L. (4th ed.) 456; Const, art. 2, § 28. But in the right so to appeal to the courts, there is not involved a further ’right to appeal from the judgment of the court to which such application for redress is made. On the contrary, a right of appeal from such judgment exists only when given by statute (Com. v. Messenger, 4 Mass. 469), and such right of appeal, when so given, may be taken away by statute, even as to cases pending on appeal. Ex parte McCardle, 7 Wall. 506. And the samé thing is true with us as to proceedings in error. The Marinda v. Dowlin, supra. We would have no hesitation, therefore, in holding that this proceeding in error is barred by the limitation of two years, if the rule declared in that case remained unaffected by other statutory provisions. But the question is whether such rule has not been changed by statute. The act of 1866, which remained in force until 1880, provided as follows: “ Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal, nor causes of such action, prosecution or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.” 1 S. & S. 1; Rev. Stats. § 19.

The remedy by error is a proceeding (Hobbs v. Beckwith, 6 Ohio St. 252), and it has been held that it is a proceeding within Rev. Stats. § 19, which saves pending proceedings when the statute upon which they are founded is repealed. Railroad Co. v. Belt, 35 Ohio St. 479. The same language, it will be seen, occurs in the act of 1866 ; and if the words, pending proceeding, include a pending petition in error, it is difficult to see why the words, cause of proceeding, in the same section, when applied to matters as to which relief may be granted notwithstanding the repeal of the statute on which they are founded, do not include the right to file a petition to reverse a judgment. True, it was held in Westerman v. Westerman, 25 Ohio St. 500; John v. Bridgman, 21 Ohio St. 22, that the act of 1866 did not prevent the application of statutes regulating procedure in an action, to causes pending when the statute was passed, and hence a change by statute in the rule as to the competency of witnesses applied to pending actions, notwithstanding the act of 1866. It is insisted that the same principle governs here, and that to shorten the period within which petitions in error may be filed is not to affect the cause of proceeding, within the meaning of that act. But in Railroad Co. v. Hine, 25 Ohio St. 629, a different view was adopted. It was there held that by force of the act of 1866, an action was to be governed, as to the time within which it might be brought, by the statute in force when the cause of action accrued.. According to the statute in force when suit was brought, the action was not barred, but it was barred according to the statute in force when the cause of action accrued, and it was held that by force of the act of 1866 the bar was complete. It is impossible to distinguish that case from this, in the particular.: now under consideration, and other cases construing tbe act of 18G6, support the same view. The State v. Washington Tp., 21 Ohio St. 603; Bode v. Welch, 29 Ohio St. 19; Bergin v. The State, 31 Ohio St. 111. And see Rev. Stats. § 19, note. ¥e hold, therefore, that by force of the act of 1866, this case is governed in this particular by section 523 of the civil code of 1853, and consequently the right to maintain this proceeding in error is not barred.

2. The other question, whether the district court erred in sustaining a demurrer to the answer and cross-petition of the administrator of Francis Shinn,-is more easily determined. And we are quite clear that the district court erred. There is no reason why the administrator was not entitled to an order of sale on his answer and cross-petition. His right to obtain an order of sale for the payment of debts, as against the parties to this suit, was wholly unaffected by the statute of limitations ; the heirs of Francis Shinn held title to the premises subject to the right of the administrator for such purpose; the widow and heirs of Joseph W. Lafferty had no interest in the premises, nor any other right with respect thereto except to .remove any property they placed thereon, which had not become part of the realty ; and, indeed, the case is in principle like Taylor v. Thorn, 29 Ohio St. 569, which we follow.

Judgment reversed.