text:
    Oshe v. The State. Cain v. The State.
    1. The act to revise and consolidate the general statutes of the state, embodied in the Revised Statutes, is not void as being in conflict with section 16, article 2, of the constitution.
    2. The offense defined in section 6942 of the Revised Statutes, consists in the Iceeping of a place, where the business of the unlawful sale of liquor is carried on; and the section is not unconstitutional in not requiring such place to be one of public resort.
    3. In an indictment under said section, it is a sufficient description of the unlawful sales to aver that they were made “ in violation of section sixty-nine hundred and forty-one, of the Revised Statutes of Ohio;” and the reference to the section must be understood as referring to the section then in force.
    Motions for leave to file petitions in error to reverse the judgments of the District Court of Muskingum County;
    The ■ plaintiffs in error, Charles Oshe and Terrence Cain, were severally indicted, under section 6942 of the Revised Statutes, as keepers of places where intoxicating liquors-were sold in violation of law. The indictments were severally demurred to. The demurrers having been overruled, Oshe pleaded guilty, and was sentenced by the court; and Cain, on a plea of not guilty, was convicted.and sentenced.

      On error, the district court affirmed the sentence in each case.
    Leave is now asked to file petitions in error, in this court, to reverse the judgments of the courts below. The cases are submitted together.

      G. L. Phillips, and Hollingsworth & McDermott, for Cain; Southard & Southard, and C. A. Beard, for Oshe:
    I. The objection is to the validity of the statute, rather than to the sufficiency of the indictment. . Of course, “the facts stated in the indictment do not constitute an offense,” unless the indictment rests upon a valid statute, creating and defining such offense.
    Section 6942 is substantially a rescript of section 4 of the former statute, S. & 0. 1431, and is intended to define the same offense.
    But the revising commission, in its zeal for condensity and expurgation, has eliminated from this statute the limiting phrase, “of public resort.” By this omission, I claim, the statute has lost its validity—is unconstitutional and void.
    Our present system of liquor laws was first enacted in 1854. Swan’s Rev. Stat. 898. The system then formulated, and which has been retained to this day, defines and punishes two classes of agencies: First. It defines unlawful selling, and punishes the act. Second. It defines and punishes the maintenance of a common nuisance, and provides for its abatement.
    Sections 1, 2, 3, having their punitive element in section 8, inhibit and punish the act of selling: First, to be drank where sold ; second, to minors; third, to .drunkards.
    Section 4, with its punitive element in section 8 also, defines a common nuisance, punishes its maintenance, and provides for its suppression.
    When our statutes came from the hands of the commission, these sections, 1, 2, 3, 4, were embodied in sections 6941, 6942. These sections preserve the same system, and, were it not' for the lapsus complained of, are of precisely the same import and effect as the said sections of the former statute,

      Section 6941, as did sections 1, 2,3, defines unlawful selling, and fixes its punishment; while section 6942, as did section 1, punishes, not the act of selling, but the keeping of a place. Therefore, there must bo that in the character of the place and practice interdicted which will authorize the state to interfere. And the statute must plainly limit its operation to such places as are constitutionally liable to the legislative power of the state. The state may not enact and enforce a statute so uncertain in its terms, that in one case, the act punished may be entirely different in kind from that punished, under the same law, in another case.
    Section 4 has been uniformly construed as defining a public nuisance, punishing its maintenance, and suppressing the business which created the public annoyance. It has been sustained on the ground that it “ is authorized by the express grant of power in section 18 of the schedule of the constitution.” Miller v. State, 3 Ohio St. 486.
    Tho adjudicated cases show that the use of the phrase in question gave to said section'its character and its validity.
    These adjudications show that the offense defined and punished by said section 4, is the maintenance of a common nuisance ; and that the phrase in question has been uniformity held to import and embody the very gist and essence of the offense.
    If it was the legislative intent to define the same offense in the revised as in the former statute, the revision must be fairly susceptible of the construction placed upon the former. This could only be effected by making the revised section legally equivalent to the former; that is, in legal effect, the two sections must be equal.
    It is an axiom, that things which are equal to the same thing are equal to each other. Now, under the former statute, an indictment, wanting the element in question, was bad, because its terms were not equal to those of the statute. Then, by parity of reason, the revised statute, also wanting this element, is not equal to tho former statute, and does not describe the offense it seeks to define.
    The legislature, while they intended to perpetuate this law, have really stricken, ont its vital part, and have completely emasculated it.
    But, if I am wrong in the opinion that the legislative intent was simply to perpetuate the old law; if the lapsus complained of cannot be attributed to accident, and if the intent was to create and define a new offense, then I submit that the law is in excess of the legislative power. Const, art. 1, § 19; Const, art. 12, § 1.
    The claim' in brief is this: Can the legislature punish, severally, a series of sales, because they violate' a certain statute, and then punish the keeping of the place where these sales were made, because they violated the same statute, and regardless of the character of the place kepi ?

    It there is nothing in the character of the place to give to the traffic some kind of turpitude, different from or in addition to, the unlawfulness already punished, then it is double punishment. It is punishing the same violations severally, and then in groups.
    If the only “ evil ” provided against by section 6942, is an aggregation of evils otherwise punished, it is cumulative and duplex.
    Mr. Train finds the legislative authority for this enactment in section 1, article 2, of the constitution. We think the only authority is in section 18 of the schedule. The power delegated by section 1, article 2, is all the legislative power of the state, less the inhibitions. It could not be enlarged by further express grant. Hence section 18, schedule, can operate only as a qualification or limitation. It must be construed as limiting the legislative power to such enactments as it authorizes; that is, to “provide against evils resulting from the traffic.”
    But the only “evil” provided against in section 6942 is the repeated violation of other laws having their own penalties. There being no other “ evil ” described in the section, it imposes a second punishment for the same offense.
    II. Sections 6941 and 6942 of the Revised Statutes, under which the indictment was drawn, are unconstitutional and void because the act to consolidate the general statutes of Ohio is so, for the reason that is in contravention of article 2. section 16, of the constitution.

      A. W. Train, for the state:
    The vital question in the case is one of legislative power. The question may be stated in this form: Has the legislature power to punish the keeping of a place—any place where intoxicating liquors are habitually sold in violation of law ?
    The power of the people of the state, except "as limited by federal law, is,. like the power of the British parliament, omnipotent. All governmental functions are either legislative, judicial or executive. The people, by the constitution, have delegated the legislative power of the state to the general assembly. All the limitations to this grant are to be found in the constitution itself. The items of legislative power granted :are not specifically enumerated in the constitution. “ This,” «ays Ranney, J., in 1 Ohio St. 85, “ must therefore always be (determined from the nature of the power exercised. Tf found it® fall within the general terms of the grant, we can only look £® ábe other parts of the constitution for limitations upon it; if none .are there found, none exist.” See State v. Covington, 29 Ohi. St. 77; Lehman v. McBride, 15 Ohio St. 591, 592.
    That the nature of the power here exercised falls within the general .terms of the grant, cannot be questioned; and it follows that the act in question is within the power delegated to the general assembly, unless there is something in the constitution prohibiting it. The only section of the constitution claimed to be violated is section 19 of article 1. The act does not interfere with private property. The traffic in intoxicating liquors may be legitimate ; with such traffic, the act does not interfere. It is not the legal, but the illegal, traffic that the law abates. It does not interfere with the property of the guilty party, it only compels him to shut up his illegal business. I do not desire to discuss the question whether a conviction under section 6942 is double punishment. This court has already decided that punishment for keeping a-place is not punishment for an illegal sale; and that a conviction under one is no bar to a prosecution under the other. Miller v. State, 3 Ohio St. 475.

      That the legislature has the authority to punish any person who keeps any place where intoxicating liquors are habitually sold, in violation of the law, we have already shown.
    May the legislature also provide, that upon the conviction of the keeper of such a place, the place may be abated ? I know of no such limitation on the legislative power, contained in the constitution, that the legislature may not do this unless the place is a place of public resort.
    This court decided, Morgan v. Nolte, 37 Ohio St. 23, that the only limitation to the creation of offenses,- by the general assembly, are the guaranties contained in the bill of rights. The power of the legislature to make it an ofíense- to maintain a place where law is habitually violated, is ample, whether the place be a public or a private one.
    Under section 18 of the schedule, it is claimed, that because no mode of interference with the traffic has been prescribed, the power delegated can be exercised only by such modes as are recognized and authorized by the settled rules of law. This proposition is wholly untenable. The mode of providing against the evils, what results amount to evils to be provided against, and the extent of the provisions against the evils, are all, by the constitution, left to the discretion of the legislature. This court has never intimated that the act of May, 1854, was the full measure of the legislative power conferred by said schedule 18.
    This court will not undertake to say, against the judgment of the legislature, that if any one keeps a private room where certain designated persons only can come, and there habitually sells intoxicating liquors to be there drunk, that no evils result from such traffic, against which the legislature may constitutionally provide. To limit the power of the legislature to the abatement of places of public resort, would encourage secret tippling that would be as injurious to the public health and the public morals, as the maintenance of open and notorious tippling-houses. Whether the evils resulting from the one or the other, or both, shall be provided against, the legislature, and not this court, must decide.
   White, J.

On these applications, there-are only three questions we deem it necessary to notice.

It is contended that the act to revise and consolidate the general statutes of the state, embodied in the Revised Statutes, is void, as being in conflict with section 16 of article 2 of the constitution. The provision of the section with which the act is claimed to conflict, is as follows: “No bill shall contain more than one subject, which shall be clearly expressed in its title.” .The view taken of this question by the commissioners for the revision is found on page 7 of the preface to the Revised Statutes; and this view is sustained hy several decisions of this court.

In Pim v. Nicholson, 6 Ohio St. 176, it is declared that this provision Avas incorporated into the constitution, for the purpose of making it a permanent rule of the two houses, and to operate only upon bills in their progress through the general assembly. That it is directory only, and the supervision of its. observance must be left to that body. This doctrine was subsequently affirmed in State ex rel. v. Covington, 29 Ohio St. 102. The first ground of error relied on is, therefore, without foundation.

Section 6942 of the Revised Statutes, on which the indictments are founded, is as follows: “A keeper of a place where intoxicating liquors are sold, "in violation of laiv, shall be fined not more than one hundred nor less than fifty dollars, or imprisoned not more than thirty nor less than ten days, or both; and, upon conviction of such keeper, the place where such liquor is sold shall be deemed to be a common nuisance, and the court shall order him to shut up and abate the same, unless he make it appear to the court that he does not then soli liquor therein in violation of law.” * * *

It is claimed that this section is unconstitutional, inasmuch as it does not require, as did the act of May 1, 1854 (S. & C. 1431), the place where the liquor is sold to be a place of “ public resort.” It is also claimed that without this qualification, in defining the offense, the section is no more, in effect, than adding a double punishment to the offense defined in section 6911. Neither of these positions is tenable. Section 6911 operates only on the individual sales therein described, and makes such sales unlawful, by whomsoever made. The offense defined, in section 6912, above quoted, consists in the keeping of a place where the unlawful sale of liquor is carried on as a business.

The section operates in the first place to punish the keeper; and after his conviction to require, in the mode prescribed, the unlawful business to be abated as a common nuisance.

In the argument for the plaintiffs in error, the power of the legislature to prohibit the making of individual sales as described ~.n section 6911 is admitted. Upon the same principle, it is equally competent to prohibit the keeping of a place where such sales are habitually made as a business.

The indictment in the case of Cain is in the form approved in Miller v. State, 3 Ohio St. 175, and in Kern v. State, 7 Ohio St. 411, except that instead of averring that the sales were made in violation of the act named in those cases, it is averred that they were made “in violation of section 6911 of the Revised Statutes of Ohio, as amended March 9th, 1880 ” Under the rule of the eas\)s last cited the averment is sufficient; but under it no sales can be proved that are not within the inhibition of the section.

In Oshe’s case the averment that the place where the liquors were sold was a place of “ public resort,” is omitted, nor is section 6911 referred to as being amended March 9,1880. The averment is that the sales were made “ in violation of law, to wit, in violation of section sixty-nine hundred and forty-one (6911) of the Revised Statutes of Ohio.” The time laid for the commission of the offense is subsequent to the passage of the section as amended. In other respects the indictments are alike.

At the time of the passage of the amended section, it took the place of the original section in the revision, and was thereafter the only section 6911 of the Revised Statutes in force. The reference in the indictment, therefore, to that section of the Revised Statutes must be understood as referring to the section then in force. Brigel v. Starbuck, 14 Ohio St. 285.

For these reason, we think the indictments are sufficient, and the motions must be overruled.


source: Caselaw Access Project

author: McIlvaine, J. White, J.,

license: Public Domain

text:
    Gifford v. Morrison.
    A court of equity will not decree a judgment lien to be invalid on tbe ground of tbe want of legal notice to tbe defendant, where tbe plaintiff bas not been guilty of misconduct, and tbe defendant bad actual knowledge of tbe pendency of tbe action, unless a meritorious defense to tbe action be shown.
    Error to the District Court of Cuyahoga County.
    The plaintiff in error, Mary L. Gifford, filed the original petition against the defendant in error, David Morrison, in the Court of Common Pleas of Cuyahoga county, to quiet her title to certain real estate in her possession, against a certain judgment lien thereon, which the defendant claimed to own and hold. The real estate in question was purchased by the plaintiff from one Allaire, on February 14, 1876. On December 28 previous, the defendant commenced an action against Allaire before a justice of the peace in said county, to recover a claim for $129.56, and caused a summons to be issued, returnable December 31, at the hour of 9 o’clock a.m., which was delivered to a constable for service on the day of its issuance. A copy of the summons so issued was delivered by the constable to Allaire on the afternoon of its return day. Before the service on Allaire, however, the return day of the summons, without the knowledge of the justice, or of the plaintiff Morrison, was changed from December 31, 1875, to January 3, 1876. The summons so altered was returned by the constable, indorsed, “Served on the defendant Allaire, December 31,1875.” On January 3d judgment was rendered by the justice in favor of Morrison against Allaire by default, for the amount claimed, whereupon a transcript of said judgment was filed in the clerk’s office of said county, which constitutes the lien complained of in the original action. The petition in the original action, in,addition to the above facts, alleged that no other summons in said action was issued by said justice, and that no action was had by said justice, or entry made upon his docket, between the day said summons was issued and the time said judgment was rendered.
    The court of common pleas sustained a demurrer to the petition and dismissed the action, which judgments were affirmed by the district court.

      E. Sowers, for plaintiff in error :
    We claim that the justice, when he rendered judgment against Allaire, had obtained no jurisdiction over him, and that the judgment is void ; not voidable, but void. We claim that jurisdiction of the person is essential to the rendition of a valid personal judgment, and that if it appears that the court rendering judgment had no jurisdiction of the person its judgment is void, no matter how correct in form its proceedings may have been. To hold otherwise would be to endue judgments in such cases with a sanctity which they never hitherto possessed. Sections 7, 11 and 14 of the act prescribing the mode of procedure before justices of the peace, provide for the commencement of actions and service of summons. As therein provided, actions are commenced by summons or by the appearance and agreement of parties without summons. It is clear that this action was not begun by the appearance and agreement of the parties without summons. Was it begun by the issuing and service of summons? We think not. Because (1) the summons issued by the magistrate was not served by copy delivered to the defendant until the afternoon of the day on which it was made returnable; and (2) because the summons issued by the justice was changed materially before service thereof, and without his knowledge or consent, and as a legal summons was thereby destroyed; (3) because no summons was ever served on the defendant in the case in which judgment was in fact rendered; and (4) because no summons was in fact issued by tbe justice in the case in which judgment was rendered. We think the provisions of section 211 of the same act applies to summons changed without authority after they are issued by the justice, as well as to summons in which a blank is left to be filled up by another. The policy of the law is that the summons shall not be changed after it is issued by the justice. The provisions of the sections 7-11 and 14 of the act regulating procedures before justices, are intended to prescribe the manner in which justices may obtain jurisdiction of the person, and no other method of obtaining that jurisdiction exists than that therein prescribed. We insist that in this case none of these methods were pursued, and that, consequently, no jurisdiction of Allaire was obtained, and therefore the judgment is void. Sheldon v. Newton, 3 Ohio St. 494.
    It is settled by the decision in this case that one of the fundamental conditions which must exist in order to give jurisdiction over the person, is that the “person . . . . has been properly brought before the tribunal to answer the charge therein contained.” To be properly “ brought before the tribunal ” can mean neither more nor less than that the party defendant has been brought before the tribunal in accordance with some one of the methods prescribed by law. And unless this is true in fact no jurisdiction has been obtained over the person of the defendant. Buchanan v. Roy, 2 Ohio St. 251.
    “Want of jurisdiction of the cause equally as much as want of jurisdiction of the person, may make a judgment .... void.” Id. 252.
    The point here is that want of jurisdiction may make a judgment void; not voidable, but a nullity. Moore v. Robison, 6 Ohio St. 320.
    If jurisdiction was obtained in this case it must have been obtained by delivering to Allaire a copy of the summons as originally issued by the justice, and yet this summons was not served till two hours after the time when the life of the summons became extinct. The law in plain terms requires the summons to be served at least three days before the time for appearance; this plain provision of the law was not observed, and lienee the judgment cannot be sustained, unless this requirement is immaterial. We think the law in this respect was intended to be observed, and that in a case where its provisions have been clearly violated a judgment would be void. Pennywit v. Foot, 27 Ohio St. 600, 616-618; Adams v. Jeffers, 12 O. R. 272, 3.
    "Wo submit that the above cited cases. clearly show that where the law prescribes the course of procedure in order that the court may obtain jurisdiction of the person or thing, that course must be pursued, otherwise the judgment is void. Jurisdiction must first be obtained—it is an essential foundation fact, without which there can be no valid judgment. If jurisdiction be obtained and all the subsequent proceedings are wrong, the judgment may be erroneous, but is not void ; it will remain in full force and effect till reversed by a proper proceeding. And the distinction between void and voidable judgments lies in the fact whether jurisdiction was or was not obtained over the person or the thing by the court rendering judgment.

      Birney & Hobart, for defendant in error :
    There is no allegation in plaintiff’s petition that the said Allaire had any defense. There is no allegation that he was damaged by the judgment, nor that fraud or deceit was used in obtaining judgment. No allegation that this plaintiff-was an innocent purchaser; on the contrary, it will not be denied by opposing counsel, but that she knew of the lien at the time she purchased, and did so purchase with the expectation of setting it aside. No good reason has been assigned by plaintiff in error, why the judgment obtained by defendant in error does not embrace his rights.
    1st. However summary or irregular, the judgment of a competent tribunal can not be treated as a nullity. It can only be re-investigated by writs of error or certiorari.

    2d. A judgment of a court of competent jurisdiction can not be impeached collaterally. 1 Ohio, 321, 430; 4 Ohio, 138, 327; 3 Ohio, 305 ; 5 Ohio, 522; 8 Ohio, 107; 12 Ohio, 253 ; 11 Ohio, 310; 15 Ohio, 445 ; 16 Ohio, 27, 272; 17 Ohio, 409; 18 Ohio, 323; 20 Ohio, 34; 6 Ohio St., 303; 10 Ohio St. 29 ; 24 Ohio St. 432 ; 30 Ohio St. 53; 48 Inch 397; Cent. L. J., May 30, 1879, p. 434.
   McIlvaine, J.

For aught that appears on the record before us, the plaintiff had actual knowledge of all the facts stated in her original petition, at the time she purchased the property, as well as constructive notice of the existence of the judgment and lien of the defendant. It is not pretended that any ground for equitable relief exists in her favor, which could not, with equal right, be asserted by Allaire, her grantor; and we think it is quite clear, that, upon the facts stated, equity would not afford relief to Allaire, the judgment debtor.

That errors and irregularities intervened in the action and proceedings before the justice must be conceded, but whether they appeared on his record is not shown. If they do appear on his record, the judgment, no doubt, might have been reversed on proceedings in error. And the rule is,’that equity will not afford relief, where there is a plain and adequate remedy at law. Allaire had knowledge of the pendency of the action before the justice. True, the notice by summons was not regular ; but it informed him that the action had been commenced, and he was thus afforded an opportunity to correct the irregularity on motion, to the justice, or by petition in error if the irregularity appeared on the face of the record. Rut whether the irregularity appeared of record or not, he could have no standing in a court of equity without an allegation of meritorious defense. Having failed to exercise diligence in seeking redress at law, equity would not set aside the judgment until it was made to appear that the result should be other or different from that already reached. No such showing is made in the case before us.

We do not deny that equity, under some circumstances, will restrain the execution of a void judgment, without an allegation of defense, as, for instance, when the fraud or misconduct of the plaintiff in obtaining the judgment is shown; but such jurisdiction is never exercised without such showing, where the judgment is voidable merely, or where, though absolutely void, it appears to be regular on the face of the record.

No misconduct is alleged against the judgment creditor, Morrison, and for aught that is alleged, the record of the justice may be entirely regular upon its face. If the justice adopted the change made as to the return day of the summons, (as would seem to be the case) the docket would be unobjectionable in form. True, the return of the constable that the defendant was summoned to appear on January 3, 1876, was false; but the falsity of that return would not relieve either the judgment debtor or the plaintiff from the necessity of showing, in the petition for equitable relief, a meritorious defense to the action.

The contention of the plaintiff in error is that the justice’s judgment is absolutely void for want of jurisdiction over the person of Allaire. But in disposing of the case, I have not deemed it profitable to trace the many nice distinctions which have been drawn between judgments void at law and those voidable merely, and have confined myself to the consideration of those principles upon which courts of equity will or will not interfere and set aside judgments for want of proper notice, whether they be such as are commonly denominated void or only voidable.

The practice upon this subject is fairly stated by Mr. Freeman in his work on “ J udgments,” as follows. “ Section 498. It has been held that a judgment rendered without process and without the knowledge of the defendant, may be relieved against without any showing on the question of merits, for the reason that ‘in such case the injury consists in the rendition of the judgment against a party without notice and opportunity of defense; and that it is unjust and unconscientious to attempt to enforce a judgment so obtained.’ But the better established rule undoubtedly is, that notwithstanding an alleged want of service of process, a court of equity will not interfei’e to set aside a judgment until it appears that the result will be other or different from that abeady reached.” See, also, Taggart v. Wood, 20 Iowa, 236 ; Gregory v. Ford, 14 Cal. 138 ; Fowler v. Lee, 10 G. & J. (Md.) 363; Piggot v. Addicks, 3 G. Greene, 427; Crawford v. White, 17 Iowa, 500; Stokes v. Knarr, 11 Mis. 389.

Equity is not concerned about a judgment, wbicb, tbougb irregular, is in fact equitable and just.

Judgment affirmed.

White, J.,

concurred in the affirmance of the judgment, without approving of the syllabus as applied to the case. He was of opinion that the judgment of the justice of the peace in question was not void, but voidable only. TIence the question as to what are the rights of a purchaser from the judgment debtor, where the land purchased is sought to be charged in execution under a void judgment, does not arise in this case.


author: Johnson, J.

text:
    Chesbrough v. Commissioners.
    1. It is within the scope of legislative power to provide, as is done by section 22 of the act relating to ditches (68 Ohio L. 60), that where a proposed ditch is in more than one county, a majority of the board of county commissioners of each county, may, in joint session, locate and establish the same.
    2. Under said section, each board of county commissioners constitutes an integral part of the joint body, and it is essential to the validity of the proceedings in joint session, that a majority of each board should concur therein.
    3. In a proceeding under said section, application for damages must be made to the commissioners of the county where the land is situated. The commissioners of such county, and not the joint body, are to determine the compensation and damages to be paid such applicant. From such award an appeal lies under sections 12 and 13 of said act, as if said ditch was wholly within that county.
    4 It is the public health, convenience or welfare of the community to be affected by the proposed ditch, and not that of the public at large, that is to be regarded in the construction of a ditch. Hence, if it appears that the proposed ditch will bo “ conducive to the public health, convenience and welfare of the neighborhood ” through which it will pass, the commissioners are authorized to construct the same.
    5. When the commissioners have apportioned the cost and expenses and amount of work to each land-owner, and have on due notice heard exceptions thereto, and confirmed such apportionment, it will be presumed, in the absence of proof to the contrary, that such apportionment is just and fair, and was made with reference to benefits to be derived from the improvement.

      Error to the District Court of Putnam County.
    The object of this proceeding in error is, to reverse the judgment of the district court, dismissing plaintiff’s petition. This petition was to enjoin the commissioners of Putnam and Paulding counties and others, from constructing a certain ditch, and from'assessing against plaintiff’s lands the cost of constructing six hundred feet thereof, that being the distance allotted to him for construction. This proposed difchwas partly within Putnam, and partly within Paulding counties, and was located and established by a joint session of the commissioners of the two counties. It is alleged as the grounds for an injunction, that said proceedings of the boards in joint session are without authority of law, and void, for reasons which will be stated in the opinion. The answer admits the location and establishment of the ditch, claims the proceedings valid, and takes issue on all the other allegations of the petition. On the trial, a bill of exceptions was taken, setting out all the evidence. To support the issues on plaintiff’s side, he offered a copy of the records “ Prom the .ditch records of Putnam county, ” and rested. No other evidence was offered on either side.

      Newbegin & Kingsbury, for plaintiff in error :
    I. Section 22,70 Ohio L. 82, under which these proceedings were had, is unconstitutional, because: 1. It authorizes the appropriation of private property and provides no means of assessing compensation therefor by a jury. Const. Ohio, art. 1, § 19; Engle v. Coms. of Defiance County, 25 Ohio St. 425 ; Smith v. A. & G. W. R. R. Co., 25 Ohio St. 91, Teagarden v. Davis, 36 Ohio St. 601; Lamb v. Lane, 4 Ohio St. 167. 2. It attempts to confer jurisdiction on the commissioners beyond the limits of the counties for which they were elected. While there is no express prohibition of this in the constitution they could exercise only such powers as such officers have been accustomed to exercise in this state. Cass v. Dillon, 2 Ohio St. 607. And any attempt to extend their jurisdiction beyond the limits of their respective counties would in fact be to confer on them judicial functions, which is prohibited. 3. The statute then in force did not provide for personal service of notice of the pendency of the petition for the location of the ditch, but the owner of the lands appropriated for the same was held to have waived his right to compensation if he failed, without knowledge of the proceeding, to appear and demand it. This is a taking of private property without providing compensation therefor in money. It simply confiscates it. 70 Ohio L. 79, § 2; Teagarden v. Davis, supra, and cases therein cited. 4. In the case of Sessions v. Crunkilton, we undertook to show to the court that the laws of the state generally, authorizing the construction of ditches, were unconstitutional, for the reason that they authorized the appropriation of private property for the benefit of private persons, but the court held that in the exercise of police power it was competent for township trustees and county commissioners to condemn lands and assess them for such purposes. Sessions v. Crunkilton, 20 Ohio St. 349. If so, then the levy is a tax and not an assessment (the distinction is a fictitious one, People v. Brooklyn, 4 N. Y. 419), and clearly in contravention of section 2, article XII. of the constitution, declaring that laws shall be passed taxing by a uniform rule all property. Hines v. Exchange Bank, 3 Ohio St. 15; Weeks v. City of Milwaukee, 10 Wis. 258 (original edition); City of Zanesville v. Richards, 5 Ohio St. 589 ; Hill v. Higdon, 5 Ohio St. 246. 5. But the acts and proceedings done under color of these laws in this case were unconstitutional and void in this, that they appear from the record to have been for private and not for the public benefit; it nowhere appears that it was for the public health, convenience and welfare, but for that only of the neighborhood or of the vicinity. Whether this neighborhood extended beyond the lands of the petitioners of the ditch “whose lands would be benefited thereby ” does not appear. Reenes v. Com. of Wood County, 8 Ohio St. 355 ; Hartwell v. Armstrong, 19 Barb. 116.
    II. The statute under which these proceedings were had was in no particular complied with so as to confer jurisdiction on the commissioners to establish the ditch. 1. No notice, as required by law, was given. . The proof shows that at best the notice was published only in a Putnam county newspaper, and the finding, if it can be called sncli, is to the same effect. The law requires that all interested shall be served by publication in each county through which the ditch extends. Where the record shows what was done in a proceeding, nothing else will be presumed to have been done. Moore v. Starks, 1 Ohio St. 372 ; Key v. Williamson, 31 Ohio St. 561. 2. There was no finding previous to the order establishing the ditch, that the provisions of section 2 (70 Ohio L. 80) had been complied with as required by section 4 (68 Ohio L. 60), nor that the ditch, if established, was necessary, and would be conducive to the public health, convenience and welfare. These proceedings and findings, as well as other requirements not complied with, as will appear of record, were all preliminary and jurisdictional to any order establishing the ditch. Sessions v. Crunkliton, 20 Ohio St. 349 ; Welker v. Potter, 18 Ohio St. 85 ; Ferris v. Bramble, 5 Ohio St. 109; State v. Coms. of Streets, &c., 9 Vroom, 190 ; s. c., 20 Am. R. 380. 3. But what is utterly fatal to any order to compel the construction of this ditch or assessing any tax for costs of location, if it had been properly established, is that the record shows no order was ever made apportioning the work of construction and costs of location, either according to benefit to be derived by the lands along the line and in the vicinity of the proposed ditch or otherwise. 70 Ohio L. 81, § 13 ; State v. Coms. of Streets, supra.

      Long & Lentzy, for defendants in error ;
    I. As to the unconstitutionality of the law: 1. The power of the general assembly to appropriate private property to public use, so far as the necessity and propriety of the appropriation is concerned, is a political power—a question of legislative discretion—and to that extent not subject to review by the courts, unless its limits have been exceeded or its purposes abused. 2 Kent Comm. (7th ed.) 393 ; Cooley Const. Lim. (4th ed.) 663; Giesy v. C., W. & Z. R. R. Co., 4 Ohio St. 325, 326; Potter’s Dwarns on Statutes, 377, 378, and cases there cited. Section 19 of the Bill of Rights does not pretend to limit the discretion of the legislature as to the necessity and propriety ©f the appropriation, but only as to the compensation to be paid, and the mode of ascertaining the amount of that compensation. 'Const, art. I. § 19. The statute gives to the owner the right to have his compensation and damages assessed by a jury, within the meaning of the constitution. 68 Ohio L. p. 62, § 12; 70 Ohio L. p. 80, § 13; 1 Swan & Critchfield, 311-315, inclusive; Lamb v. McKee, 4 Ohio St., 167. All the sections of the law apply as well to ditches which lie in two or more counties as to those which are all within one county, and section 22 simply provides for the additional incidents which arise from the situation of the ditch in both counties. In construing the law each part must be viewed in connection with the whole, and the presumption is always in favor of the validity of the law. 1 Kent Comm. (7th ed.) 510; People v. Draper, 15 N. Y. 532; C., W. & Z. R. R. v. Commissioners of Clinton Co., 1 Ohio St. 82. 2. The proceedings for the location and construction of ditches are, in fact, proceedings in rem. 70 Ohio L. pp. 80-82, §§ 13, 14. And the validity of the law providing for notice by publication and constructive waiver in such cases may be considered stare decisis in this State. Miller v. Graham, 17 Ohio St. 1; Cupp v. Commissioners of Seneca Co., 19 Ohio St. 173-184. 3. Under the general grant of legislative power by the constitution to the general assembly (Constitution, art. II. § 1), as well as under article X., section 7, the legislature may confer upon county commissioners the power to assess the costs of making ditches, roads, &c., when the public welfare demands their construction upon lands specially benefited thereby. Sessions v. Crunkilton, 20 Ohio St. 349. The court will disregard any error or defect in proceedings which does not affect the substantial rights of the adverse party. Rev. Stat. of 1880, § 5115 ; Courtright v. Staggers, 15 Ohio St., 511; Kent v. Perkins, 36 Ohio St. 639-643.
    II. As to the regularity of the proceedings: 1. The record shows notice as required by law in Putnam county. The land of the plaintiff, which was assessed for the construction of the ditch, lies wholly in Putnam county. The publication of tlie notice in Putnam county, in the manner provided by law, was, therefore, a sufficient notice to him, and it was only necessary, in order to meet his complaint of a want of notice, to prove the proper publication of the notice in Putnam county. The law provides for the record in both counties of the proceedings of the commissioners. Rev. Stat. of 1880, § 850. It provides that the surveyor shall make a report for each county. TO Ohio L. p. 82, § 22. And these are all the matters which are required to be of record in both counties. The proceedings of each auditor is only properly of record in his own county. The notice being shown to he of record in Putnam county, in the absence of the record in Paulding county, or of proof on the part of the plaintiff that no such record exists, the presumption will be that the finding of the joint boards of commissioners, “ That due notice has been given as required by law, &c.,” will be taken as conclusive that a like notice was given in Paulding county. Keys v. Williamson, 31 Ohio St. 561. 2. The record shows a finding that the ditch is necessary, and will be conducive to the public health, convenience and welfare of the neighborhood, a finding amply sufficient to create the jurisdiction. 3. There was an “ apportionment of the John Dalton ditch in Putnam and Paulding counties,” found in the proceedings of the commissioners of Paulding and Putnam counties, in the matter of said ditch, separate and distinct from the apportionment contained in the proof of the published notice. And the presumption of law, in the absence of proof to the contrary, is that it was made, as was deemed just and right, according to the benefits derived by constructing the same. 70 Ohio L. p. 81, § 13 ; Courtright v. Staggers, 15 Ohio St. 511-514. The petition alleges that no estimate was made by the commissioners and no award of the labor according to the benefits. And the answer alleging that the proceedings were in all respects in conformity to law, denies each allegation in the petition not specifically admitted in the answer.
   Johnson, J.

The proceedings to-locate and establish this ditch were had under sections 1, 4, 5, 11 and 12 of vol. 68 of Ohio Laws, p. 60, and amendments to sections 2, 3, 13, 14 and 22 of 70 Ohio Laws, 79.

Section 22 contains the authority for the action of the two boards. It reads: Sec. 22. In all cases where any proposed ditch shall be in more than one county, the application shall be made to the commissioners of each of said counties, and the county surveyor or engineer must make a report for each county, and application for damages must be made in the county where the land is situated, and a majority of the commissioners in each county, when in joint session, shall be competent to locate and establish the ditch.”

It is objected that said section is unconstitutional, because it attempts to confer jurisdiction on the county commissioners, beyond the limits of their respective counties for which they were elected.

It is admitted there is no provision of the constitution expressly prohibiting such a statute, and this admission is a ■sufficient answer to the objection. All legislative power, not prohibited, is vested in the legislature. It is clearly a legislative power to provide for the construction of ditches, where they are conducive to the public health, convenience or welfare, and to designate such agencies as are appropriate, and not prohibited, to carry out the provisions of the act. This section provides, that when the proposed ditch is in two or more counties, it must be located and established by the boards of commissioners of the respective counties, in joint session, and it requires a quorum and concurrence of each board to make the necessary orders.' As amended (70 Ohio L. 82) this section requires, as the foundation of joint action, that the petition must be filed in each county, and the proceedings, preliminary to the joint action,-such as the bond and notice, as required by section 2 of the act (68 Ohio L. 60), are to be had in each the same as if the ditch was in a single county. The joint action consists in the finding that the provisions of law, preliminary to the consideration of the petition on its merits, have been complied with, a finding that the proposed ditch is conducive to the public .health, convenience or welfare, the location of the same, if they so find, and the apportionment of .the -costs and work of construction. If damages are claimed, the application therefor must be made to the commissioners of the county where the land is situated. The joint-session has nothing to do with the assessment of damages for property appropriated. It locates and establishes the ditch, and apportions the cost of its location and construction, and damages, if any, to the persons owning lands through, or in the vicinity of which, the proposed ditch is to be constructed. As the ditch is an entirety and lies in more than one coimty, the statute requires the concurrent action of each county to locate and establish it, and to apportion among land-owners its aggregate cost. A majority of each board, in joint session, and not a majority of the joint board, is required. Hence each board acts as an integral part of the joint body. The assumption that the commissioners of either county are acting and exercising authority over the internal affairs of the other county, is therefore not well founded. Engle v. Board of Commissioners, 25 Ohio St. 425.

Again, it is objected that section 22 is unconstitutional, and the proceedings void, because no provision is made for a jury to assess the compensation for lands appropriated.

It was held, in Engle v. Boards of Commissioners, 25 Ohio St. 425, that no appeal was provided from the final action of the joint boards in establishing a ditch in more than one county. It was not, however, held • that no appeal would lie from an allowance of compensation and damages made by the commissioners of the county where the laud was situated. We think this section, when construed in connection with other provisions of the same statute, does provide for such an appeal from the action of the commissioners allowing compensation and damages for land appropriated. In proceedings under this section, application for damages must be made in the county where the land is situated, and the commissioners of such county must act thereon. It is no part of the duty of the joint boards to assess such, damages and compensation. Section 13 provides for an appeal from their action to the probate court, where the same provision is made for a jury as in other cases, under the act of April 30, 1852. A constitutional jury is thus provided. It is true no appeal lies from the order of the joint boards establishing a ditch, yet one is provided from the separate and independent action of each board in allowing compensation and damages. After all questions of damages and compensation are settled, tlie boards in joint session award to land-owners their proper proportions of the costs and labor of construction.

These proceedings are said to be void, because the petitiqn on which they are founded was insufficient to warrant action,, and because the findings of the joint sessions are alike defecti%re.

The petition states, and the order establishing the ditch finds, that the proposed ditch “ will be conducive to the public health, convenience and welfare of the neighborhood,.” The statute (§ 1) authorizes such action “ when the same will be conducive to the public health, convenience or welfare.” The record shows that this, proposed ditch extended something near five miles in the two counties. The finding is, that it will be conducive to the public health, convenience and welfare of the neighborhood, that is, of the neighborhood along the entire line of the proposed ditch. The object of the law is to provide a means for drainage wherever the public health, convenience or welfare requires it.

It is not essential that thz public at large shall be benefited, but only that part of the public affected by want of proper drainage, or by the improvement to be made. The in jury from want of drainage and the benefits to be derived from the ditch are necessarily local in their nature. Public welfare, health and convenience, in this connection, are terms used in contradistinction from a mere private benefit. A nuisance is said to bepublic, when it affects the surrounding community generally, and impairs the rights of neighboring residents as members of the public, and private when it especially injures individuals. Abbott’s Law Diet, title “ Nuisance.”

The finding by the commissioners in joint session, that the proposed ditch will be conducive to the public health, convenience and welfare of the neighborhood, is a finding, that the community generally in the vicinity are benefited, and not merely the lands of the petitioners or others. It is a finding that it is for the public welfare as distinguished from a mere private advantage.

It is further claimed that no notice was given such as the statute requires as a condition precedent to the order establishing the ditch, and also that plaintiff had no actual notice.

The petition alleges a want of such notice. This is denied by the answer. The burden of proof was on the plaintiff. He offers in evidence a copy of the proceedings in Putnam county only. "What was done in Paulding does not appear. It can only be inferred from the recitals in the record made in Putnam county, and in the action of the joint boards. These show notice by publication in Putnam county. For aught that appears the record of Paulding county shows a like notice in that county. If they do not the onus was upon plaintiff to show it. The auditors of each county are required to keep a record of all proceedings had in each case (§ 19).

This record, when properly kept, would include the separate action of his board preliminary to the joint action, the joint action, and all subsequent action of his own board. The record of Putnam county would not therefore show the action of the commissioners of Paulding county, except when in joint session.

The plaintiff has therefore failed to show that there was no notice by publication in Paulding county, or that he did not have actual notice of these proceedings. As this is an action to enjoin proceedings, and not in .error to reverse them, the burden is upon plaintiff to make good the allegations of his petition.

The last objection we shall notice is, that the record fails to show an order apportioning the work to be done' according to benefits to be derived by the lands along the line.

Section 13, as amended (70 Ohio L. 80), provides that the commissioners shall make a just and fair estimate of the average cash value of the construction per linear rod, cubic yard, or foot of earth, and every section or allotment of such ditch, and apportion the cost of the location thereof, and labor of constructing the same, and award to each person owning lands through and in the vicinity of which it is proposed to pass, as shall be just and right according to benefits to be derived by constructing the same.

They shall specify the time for the payment of costs and the time and manner in which the labor is to be performed, and appoint a day to hear exceptions to such apportionment. The auditor shall give notice of such apportionment, showing the names of the owners, each parcel of land assessed, number' of. feet each is to construct, estimated value for construction, and the expenses, including damages and compensation, if any, that have been awarded. On the day named in such notice, the commissioners shall meet, and if exceptions have been filed, they hear the same upon sworn evidence offered by any party. On such hearing, and an actual view if they desire, they may confirm or change the apportionment as in their judgment is just (70 Ohio L. 81, 82).

This petition charges that the apportionment of cost of locating, and the amount of work each was to do, was made without any estimate of the cost of construction, and without regard to the benefits to be derived therefrom. This is denied by the answer.

The record shows the apportionment as required by section 13, as published in the Putnam County Sentinel, by the auditor of that county. We may assume that like notice was also given in Paulding county.

The time therein fixed for hearing exceptions was fixed, as well as the time for completing the work. At the time fixed for hearing exceptions the two boards held a joint session, certain exceptions were filed, and after mature consideration they were overruled and the apportionment was confh-med. The time for doing the work having expired, the part allotted to plaintiff was sold to McPheters, one of defendants, pursuant to notice.

The record is silent as to the estimates made of cost of construction, and of the method adopted to apportion the work. It does show the apportionment in detail, but whether it was in all respects just and fair with respect to benefits to be derived does not appear. These two boards were created a tribunal to hear exceptions upon sworn testimony and after publication of due notice. The record shows they performed that duty, and until the contrary appears, we must presume their apportionment was just and fair, and made with proper reference to the benefits to be derived.

Other objections are urged against these proceedings, but as they relate to their regularity, rather than their validity, we have not regarded it as necessary to consider them in this connection.

Judgment affirmed.


author: Longworth, J.

text:
    Pomeroy v. Salt Co.
    1. The general rules of law, which govern the rights and obligations of the owners of dominant and servient estates, apply as well to subterranean rights of way as to those upon the surface.
    2. The owner of coal lands, through which another has a right of way, by-subterranean entry, to reach coal mines in an adjoining tract, may lawfully construct an entry crossing- such right of way, provided, it ■ be done without destroying or substantially interfering with the use thereof.
    Error to tbe District Court of Meigs County.

      E. A. Guthrie, for plaintiff in error.

      John Cartwright and Grosvenor <& Vorhes, for defendant in error.
   Longworth, J.

In tlie year 1869 Yalentine B. Ilorton and Charles W. Dabney owned in fee a tract of land containing 43 acres, rectangular in shape, near the Ohio river, in the city of Pomeroy. This tract fronted southwardly toward the river, and on the north adjoined a 300-acre tract of coal land, afterward purchased by the plaintiff in error. They also owned a coal landing, or platform, known as the “ Goulding Platform,” adjoining this 43-acre tract at its southeast corner. The furuace of the Buckeye Salt Co., defendant in error, was near the southwest corner of the tract. Under the surface of this land «xtended a vein of coal, outcropping across the northeast corner and along the cliffs of the south front. A long-disused entry or passage-way extended from the Goulding platform through the coal vein northwardly to certain deserted workings, or coal mines, in the northeasterly portion of the tract. These workings had caved in, and the entry had become partially or entirely filled up, so as to be impassable unless cleaned.

In the year mentioned Horton and Dabney conveyed to defendant this tract in fee; the deed, however, contained this reservation: Saving and excepting a right of vray from what is known as the Goulding platform, on lots numbered 279, 280, 281, and contiguous lots, by an entry to the north and east sides of the tract hereby granted, and the right to make such ways and roads and keep them in repair, for the transportation of coal and salt, as may be deemed necessary and expedient by the grantors, their heirs and assigns.”

Pomeroy, having become the owner of the 300-aere tract on the north, purchased from Horton and the heirs of Dabney the Goulding platform, together with the rights of way so reserved by them, for the purpose of obtaining an entrance to the coal veins in his 300-acre tract. Beginning at the platform he opened and cleared the old entry half-way across the tract, until he came to the deserted workings. Prom this point the evidence shows it to have been impracticable to proceed further to the north, the standing coal necessary to support the passage-way having been exhausted. Near this point, however, was discovered another deserted entry running west. This entry he cleared and followed to the center of the tract, the first point where he found standing coal sufficient to support a new entry. Through this standing coal he drove a new entry arid wind-way for ventilation due north into his own land.

The defendant purchased the 43-acre tract for the purpose of mining coal therein to use in its salt furnace. For this purpose it had driven an entry and wind-way northwardly through the western portion of its land to a point about three-fourths of the way across the tract: thence it proposes to drive its entry at right angles eastwardly through and across the entry of plaintiff, and at the same level, for the' avowed purpose of reaching the remaining coal in the northeast portion of its tact, and possibly with the further object of obtaining coal from lands lying to the east of the same.

■ To prevent this action the plaintiff brought suit in the common pleas court of Meigs county,'praying for an injunction to prevent defendant from “penetrating and breaking the walls of said way and entry, and from crossing the way and entry of plaintiff.” The case was fully tried on appeal in the district court and the petition was dismissed. This decision we are now called upon to review.

The defendant maintains that it has the right to cross the plaintiff’s entry and wind-way for several reasons which we shall now consider.

I. It is urged that the right reserved by_ Horton and Dabney in their deed to the defendant was not assignable, and Boatman v. Lasley (23 Ohio St. 614), is relied on. In that case this court decided that a right of way m gross is a right personal to the grantee and cannot be made assignable or inheritable by any words in the deed by which. it is granted. This is undoubtedly the law. In the case at bar, however, the right of way was not m gross, but was cvpp'iwtenant to the land known as the G-oulding platform, the conveyance of which to Pomeroy, together with the right of way aj>purtenant thereto, was effectual to pass title.

II. Defendant insists that, by the terms of the deed from Horton and Dabney, nothing more was reserved than a right to an entry extending from the platform in a direction due north, or substantially due north, along the easterly side of the tract; and that, by going west to the center of the tract and then driving his entry north, the plaintiff has exceeded the right granted him, and has cut off the defendant’s approach to its coal fields in the northeast quarter of its land; unless .it is permitted to cross his entry. We are not prepared to say that in driving his entry as he did Pomeroy was a trespasser. Although doubtless it was possible to extend the entry due north through the deserted mines to the north and east sides of the tract, yet it clearly appears from the evidence that such a course was not reasonable or practicable, and it does not appear that Pomeroy went any further to the west than was absolutely necessary to find standing coal sufficient to support his entry. This we think, under the terms of the. reservation, he had a right to do. Had we any doubt upon this subject, however, such doubt would be set at rest by considering the subsequent action of the parties. It seems to have been conceded by Pomeroy that the coal taken from his now entry belonged not to him but to the Salt Company, and he therefore proposed to pay the company at the rate of three-quarters of a cent per bushel, measured in the solid, for all coal so taken out by him. This proposition by its terms referred only to coal taken from the solid vein and not to such loose coal as might be found in clearing up the old entries or in the deserted workings. The proposition was, by a vote of defendant’s directors, formally accepted April 24,1874, and an agreement in writing was entered into four days later, which, after reciting the conveyance from Horton and the heirs of' Dabney to-Pomeroy, reads as follows:— “ and whereas, in the prosecution of the right so acquired, the said Samuel Wyllys Pomeroy, in driving his entry, passes through coal which he concedes is the property of the Buckeye Salt Company: now, therefore, the said company agrees to receive, as full compensation therefor, and the said Samuel Wyllys Pomeroy to pay, to the said company, for the coal removed by him in the prosecution of his said right of way, a royalty of three-fourths of a cent a bushel.

“ It is also mutually agreed by the said parties that the coal so removed shall be estimated by measurement of the space occupied by the same before removal, by competent mining engineers, who shall make due allowance for customary waste in mining, slack, &c., on which no royalty is accustomed to be paid.”

The evidence shows that Pomeroy paid royalty, from time to time, on all the coal taken out by him in driving his entry and wind-way through the standing coal according to the terms of this contract; and that all this coal as taken out was purchased from him by the Salt Company.

Under this state of facts we do not think that defendant is in a position to question plaintiff’s right to locate his entry as he did.

III. Under this state of facts the question arising for decision is, whether defendant has the right to cross the plaintiff’s entry, at the same level, by an entry of its own. It is clear from the facts proved that to cross at any other level above or underneath plaintiff’s entry would be impossible.

We do not think that there exists any difficulty in ascertaining the principles of law which govern the case. It having been established that Pomeroy has a right to the use of his entry as located and constructed, it is clear that defendant should not be permitted to do any act whereby such right will be destroyed or substantially interfered with. It is also clear that the Salt Company, being the owner of the land, subject only to the easement, has the right to the use thereof in any manner not inconsistent with the easement reserved. If then it is possible for it to cross the entry of plaintiff in the manner proposed, without destroying or substantially interfering with his use of the same, its right to do so is beyond question; and, if such right exists, we cannot see that the defendant’s reason for making the crossing, whether for the purpose of mining coal in its own tract or of obtaining coal from lands lying to the east, is a subject for the court’s consideration. These are the principles applicable to rights of way upon the earth’s surface, and we are not aware that they lose their application where such rights of way happen to be underground.

It is claimed by plaintiff that it is impossible to cross his entry, by another entry at the same level, without rendering his right of way useless and the working of his mines impracticable; for the reason that the necessary breaking of the continuity of his entry and wind-way will destroy the draft of air by which his mines are ventilated, and without which it is absolutely impossible to work them. lie also says that the danger of collision between trains at the crossing would be very great, owing to the darkness of the entries and the impossibility of discerning the approach of a crossing train until the moment of contact. On the other hand it is claimed that these are not necessary consequences of the proposed crossing; but, on the other hand, that, if the openings in the walls of plaintiff’s entry and wind-way are closed with air-tight doors, which shall only be opened to admit the passage of trains, and then closed, the ventilation will not be interfered with, at least to any material degree; and that, by having a watchman constantly stationed at the point of crossing, all danger of collision will be avoided.

In support of these several claims a large amount of testimony has been taken, all of which is before us, and all of which we have examined with care.

We are satisfied that the crossing of the entries, if properly made by defendant, all reasonable means being used by it to prevent injury to plaintiff’s right of way, such as have been referred to, his use of his entry will not be seriously affected.

It will be observed that no charge is made that defendant proposes to cross plaintiff’s entry in an improper manner; on the contrary, the only claim of threatened injury is that defendant proposes to make the crossing. This crossing, we think,' as before said, the defendant has the right to make, provided it protects plaintiff, at its own expense, from all possible injury; and we have no reason to suppose that it intends to do otherwise. These being the issues before the district court, we think that court was right in dismissing plaintiff’s petition and refusing an injunction. No injury was threatened. Should the defendant, in effecting such crossing, fail to use all proper means to protect the rights of plaintiff, or at any time fail to provide the same, the courts are open to hear the complaint. Indeed, we see no reason to doubt the power of the court to enforce all reasonable conditions on the part of defendant, by mandatory injunction, even after tbe. crossing has been completed and the new entry used.

Judgment affirmed.

Johnson, J., did not sit in above case.


author: MoIlvaine, J.

text:
    The State v. Commissioners.
    1. The act of March 29, 1867, and the acts amendatory and supplementary thereto, commonly called the two-mile-road improvement laws, authorize the commissioners of counties, for the purpose of raising money necessary to meet the expenses of road improvements, “to issue the bonds of the county,” and thereby create a debt of the county in its quasi corporate capacity, notwithstanding they also require the commissioners to assess the cost and expense of the improvement upon the lands benefited thereby and situate within two miles thereof.
    2. When, from any cause sufficient money be not realized from such local assessments to pay the debt so created, it is, the duty of the commissioners to levy a tax therefor upon all the taxable property of the county.
    3. A purchaser of such bonds, who has no actual knowledge of any defect in their execution, is not bound to look beyond the findings and record of the commissioners, for the purpose of ascertaining whether conditions precedent to their execution have been performed.
    Mandamus.
    This proceeding is prosecuted by the state on the relation of Uriah Horseman’s administrators, to compel the board of commissioners of Fayette county to levy a tax to pay a balance due upon certain bonds issued by them, and known as “the state road bonds.”
    The class of bonds so known, amounting to $35,000, was issued by the commissioners to Grove & Coffman, contractors, to pay for a certain road improvement, under the act of March 29, 1867 (64 Ohio L. 80), entitled, “ An act to authorize county commissioners to construct roads on the petition of a majority of the -resident land-holders, along and adjacent to the line of said road, and to repeal an act therein named,” and the acts amendatory and supplemental thereto.
    The commissioners to whom a petition for the road improvement had been duly presented, proceeded regularly under the statute to construct the road, finding, among other things, that a majority of the resident land-holders of the county whose lands were reported as benefited, and ought to be assessed, had subscribed the petition, and issued bonds as aforesaid to the contractors, who completed the construction of the road, in accordance with their contract, in the year 1870.
    Eor the purpose of satisfying the bonds so issued, the' commissioners caused an assessment to be made upon the lands benefited and situate within two miles of the road. The amount so assessed was sufficient to pay all the bonds; but certain of the land-holders whose lands were assessed obtained a perpetual injunction against the enforcement of the assessment against their lands (see Hays v. Jones, 27 Ohio St. 218). So that, after applying the amount collected on the assessment, twenty-nine of the bonds so issued, for $500 each, were left wholly unpaid and unprovided for.
    Nine of these last-named bonds, before maturity, had, in the usual course of business, been indorsed and transferred by Grove & Coffman-to relators’ intestate, Uriah Horseman.
    Upon this state of facts, it is submitted by the defendants that they have no power to provide for the payment of relators’ claim by a levy of taxes either upon the taxable property of the county, or of the road-improvement district.

      Mills Gardner and Melville Hayes for plaintiff:
    The power to issue the bonds was conferred by section 7 of the act of March 29, 1877 (74 Ohio L. 147), and see 64 Ohio L. 80 ; 65 Ohio L. 44.
    The bonds are not issued upon any consent of land-owners. The commissioners are required to issue the bonds, if they order the improvement. They are not issued cn the faith of the assessment. The county is primarily liable. State ex rel. v. Commissioners, 6 Ohio St. 285; Commissioners v. Pittsburgh, 88 Pa. St. 66 ; Bank v. Chillicothe, 7 Ohio (pt. 2), 31; 2 Kent Comm. 298 ; 2 Cranch, 127; 4 Wheat. 636; 4 Pet. 152. The county’s security is the assessment.
    If the bonds purport upon their face to be issued by author-' ity, the purchaser of the bonds is not required to inquire into; their regularity. High on Ex. L. R. § 383 ; Mayor v. Lord, 9 Wall. 414; Flags v. Palmyra, 33 Mo. 440; County of Warren v. Marcy, 97 U. S. 96 ; State ex rel. v. Board of Education, 27 Ohio St. 96 ; Knox Co. v. Aspinwall, 21 How. 539 ; Bissell v. Jeffersonville, 24 How. 289; State ex rel. v. Vanhorn, 7 Ohio St. 327; State ex rel. v. Goshen Tp., 14 Ohio St. 569.
    Estoppel applies. State ex rel. v. Board of Education, 27 Ohio St. 97 ; 1 Dillon Mun. Corp. 307, § 416; 21 How. 539 ; 16 Wall. 644; 24 How. 288 ; 96 U. S. 51; 14 Ohio St. 260 ; 8 Ohio St. 400; 2 Ohio St. 607.
    Mandamus is the proper remedy.
   MoIlvaine, J.

If the defendants have power to provide for the payment of relators’ claim by taxation, their duty to do so is not questioned. Nor is the power of the commissioners to provide, by taxation, for the payment of the debts of the county, disputed. The principal contention, therefore, is, does the claim of relators constitute a debt of the county ?

The form of the bond, if that alone were to be considered, would clearly indicate an obligation on the part of the county. The following is a copy:

“ No. 131. State of Ohio, $500.00.
County of Fayette.
“ Be it known that the County of Fayette, in the State of Ohio, hereby acknowledges to owe Grove & Coffman, or bearer, the sum of Five Hundred Dollars, payable at the office of the Treasurer of said Fayette County, on the first day of March, 1871, with interest at the rate of seven per centum per annum, from the first day of September, 1868, payable semi-annually at said Treasurer’s office on the 1st day of March and September in each year, on the surrender of each coupon hereto annexed—attested by the Auditor of said county. ,
This bond is issued in pursuance of and according to an act of the General Assembly of the State of Ohio, entitled £An act to authorize the County Commissioners to construct roads on petition of a majority of the'resident land-owners along and adjacent to the lino of said road, and repeal an act therein named,’ passed March 29, 1867, and the acts amendatory and supplementary to said act, passed March 31, 1868, and May 16, 1868, respectively.
In testimony whereof, The Commissioners of said County of Fayette, and as such Commissioners have hereunto set our hands and names, and affixed the seal of said County, this 4th day of November, 1869.
“A. MoOandless, Allen TIegler, ) Commissioners Auditor of Wm. Clark, j- of said Fayette Fayette County, O. Enos Reeder, ) County, Ohio. Registered Nov. 4, 1869.”

The question of the power of the commissioners to obligate the county, is, however, raised on the statutes to which reference is made in the bond. The holder of the bond is notified by its face, that the power assumed by the commissioners is to be found in these statutes. Section 7 of the statute provides, ££ That for the purpose of raising money necessary to meet the expenses of such improvement, the commissioners of the county are hereby authorized to issue the bonds of the eountij, payable in installments, or at intervals not exceeding in all five years, bearing interest at the rate not to exceed seven per cent, per annum, payable semi-annually, which bonds shall not be sold for less than their par value.” From the language of the statute here quoted, perhaps no one would deny that the debt evidenced by the authorized bonds is the debt of the county in its quasi corporate capacity—indeed, the language is not susceptible of any other méaning : but, inasmuch as the same section provides for an assessment upon the lands specially benefited and lying within two miles of the improvement, to meet the payment of the interest and principal of the bonds, it is contended that no other mode or manner of taxation can be resorted to for the purpose of paying the bonds. However plausible this contention may be, we think it cannot be maintained. That the legislature might have so provided, we do not deny, but if sueli was the intention, it should have been expressed in very clear and unmistakable terms. Such terms were not used, nor is such inference clear. On the other hand, the liability of the county in its quasi corporate capacity is expressed in apt and unmistakable words : and if for such liability a portion only of the taxable property of the county can in any event be taxed, such intent on the part of the legislature should have been expressed in like apt and unmistakable terms. As between the county and the taxing district created by the statute, to wit; “ the territory within two miles of the road improvement,” it cannot be doubted that the intent of the ■statute was to impose the burden of the improvement upon the latter; but as to the creditor holding bonds issued to meet the expenses of the improvement, the faith of the county to the extent of all its taxable property was pledged, by the express authority given -to the commissioners to issue therefor “ the bonds of the' county.” Whenever, therefore, payment of the bonds cannot be provided for, by local assessment under the statute, it is the duty of the commissioners to make provision for their payment, as for the payment of other debts of the county, by a levy upon all the taxable property of the county.

Again, although the question is not raised by the pleadings in this case, it is suggested that, inasmuch as the power of the commissioners to make improvements, under the act of March 29, 1867, and its amendments, depends on the fact that the petition for the improvement be subscribed by a majority of the resident land-holders whose lands were reported benefited thereby, which fact did not exist in the case before us, as was adjudged in the case of Hays v. Jones, 27 Ohio St. 218, therefore the-bonds in question were unauthorized and void. True, it was found in that case that the jurisdictional fact named was. wanting, and therefore it was adjudged, that the defendants, parties in that case, be forever restrained from enforcing the collection of the special assessment against the property of the plaintiffs in that action. Rut the relators, or their intestate, though he purchased the bonds during the pendency of that action, were not parties to it or bound by its result.

The jurisdictional fact in question is thus stated in the answer of the defendants to this proceeding:

“ During said proceedings, and before the final order, a majority of the land-holders resident in said Fayette county whose lands had been reported for assessment, as aforesaid, had signed said petition for said improvement.
“ That in the month of July, 1868, the said report of said viewers and surveyor came on to be heard before the said board of county commissioners, at which time a number of said petitioners presented a remonstrance to said board asking that said improvement be not made, yet the said commissioners decided that a majority of the land-holders whose lands had been reported for assessment had signed the petition, and then made the final order for said improvement on the-day of July, a. d. 1868, and such further proceedings were had that the contract for making such improvement was awarded to' Grove & Coffman, to be paid for in the bonds of said Fayette county, of which the said bonds mentioned in the plaintiff’s petition constituted a part, and said improvement completed in the year 1870, according to the contract and specifications therefor.”

The rights of the relators, as we conceive, do not depend upon the fact whether or not a majority of the land-holders had subscribed the petition for the improvement. That their intestate purchased the bonds before maturity, for a valuable consideration, and without actual knowledge of any defect in their execution,' is -conceded. Of .coqrse, to the extent he was bound to inquire as to the regularity of their execution, he is chargeable with any information which reasonable diligence would have revealed. Fie was bound to know that the bonds were issued under the authority of certain statutes. The face of the bond gaVe him this information. It was certified in the bond that it was “ issued in pursuance of and according to ” the statute; and there are authorities which hold that an indorsee may rely on such recital, without further inquiry as to the regularity of the issue. State ex rel. v. Robertson, 27 Ohio St. 96; Warren v. Marcy, 97 U. S. 96.

But conceding that such recital does not relieve the purchaser of such bonds from further inquiry as to the performance of conditions precedent to their execution, an examination of the records of the commissioners would have 'revealed the fact that every condition precedent had been fully performed ; and among others, that a majority of the resident land-holders whose lands were reported benefited by the improvement, had subscribed the petition, and that the commissioners had so found the fact to be. True, under the decision of Hays v. Jones, this finding was not conclusive in such a ease ; but, nevertheless, it was a fact which it became the duty of the commissioners to pass upon, and having found it in favor of the improvement, and issued bonds reciting the fact that every condition precedent had been performed, it appears to us, that an innocent purchaser of the bonds, relying upon the information thus acquired, should be protected against such defense on the part of the county, which, in fact, has realized and enjoyed the' full benefit of the proceeds. Commissioners v. Aspinwall, 21 How. U. S. 539; Bissell v. Jeffersonville, 21 Ib. 287; Warren v. Moray, 97 U. S. 96; State ex rel. v. Robertson, 27 Ohio St. 96; State ex rel. v. Garrett, 7 Ohio St. 327; Shoemaker v. Goshen Township, 11 Ohio St. 569.

Peremptory writ awarded.