author: Wanamaker, J.

text:
    The Federal Gas & Fuel Company v. The City of Columbus.

      Municipal corporations—Gas franchise — Power to contract for use of streets, etc.— Utility to compensate municipality, when — Sections 3714 and 10129, General Code — Discretionary power of municipality — Interpretation of language in franchise— Percentage of receipts.

    1. Prior to the constitutional amendments of 1912 municipalities in Ohio, under favor of Sections 3714 and 10129, General Code, had the power to contract with a gas company, or other public utility, for the use and occupation of the streets in laying its gas lines, maintaining the same and keeping the same in repair, by providing compensation to the municipality, either in a lump sum or based on a certain percentage of its gross receipts.
    2. Where a statute grants the power to a municipality to grant a franchise, either upon “terms and conditions” or “regulations and restrictions” that it may prescribe, large latitude must be allowed for the discretion of the municipality and its officers in the provisions made in such franchise contract; and unless expressly limited by the statute authorizing the grant, the municipality may exercise its discretion in any reasonable manner compatible with the best service and the greatest advantage, pecuniary or otherwise, to the municipality and its inhabitants.
    3. Where the language of the franchise is that “said company shall annually, on the first Monday of January, pay to the said city of Columbus, for the benefit of the general expense fund of ■ said city, ten per cent, of all moneys received from the sale of all natural gas sold at a price exceeding fifteen cents per thousand cubic feet,” the basis of computation is “all moneys received” when the charge exceeds “fifteen cents per thousand cubic feet.”
    (No. 15507
    Decided July 3, 1917.)
    Error to the Court of Appeals of Franklin county.
    Facts are stated in the opinion.

      Mr. L. B. Denning and Messrs. Taylor, Williams, Cole & Harvey, for plaintiff in error.

      Mr. Henry L. Scarlett, city solicitor, for defendant in error.
   Wanamaker, J.

“The said company shall annually,-on the first Monday of January, pay to the said city of Columbus, for the benefit of the general expense fund of said city, ten per cent, of all moneys received from the sale of all natural gas sold at a price exceeding fifteen cents per thousand cubic feet * * * .”

This provision is taken from the franchise contract given by the city of Columbus in 1899 to The Federal Gas & Fuel Company.

Out of this provision arise two big questions raised by the plaintiff in error and decided adversely to it in the courts below.

The contention of plaintiff in error is that said provision has:

1. No legal effect because ultra vires.

2. If of legal effect, then such legal effect is limited to ten per cent, of the excess above fifteen cents per thousand cubic feet.

A return to and.review of some of the priipary principles of civil government, particularly municipal government, may help us in the proper determination of this case.

What is the origin of municipal power? What is the measure of municipal power? Did municipalities in Ohio, at the time of the grant, have the legal power to put such a provision in the franchise contract ?

For more than half a century prior to 1912 it was the settled doctrine of Ohio, asserted by the general assembly, and unfortunately sanctioned by the courts, that municipalities in Ohio were merely the creatures of the law, creatures of the general assembly, and that they possessed no powers except such as were either expressly granted to them by the general assembly or such as were necessarily implied in order to carry into effect the powers expressly granted.

One of the leading cases in Ohio upon this doctrine of the origin of municipal power is that of Ravenna v. Pennsylvania Co., 45 Ohio St., 118. A part of the syllabus reads:

“Municipal corporations, in their public capacity, possess such powers and such only, as are expressly granted by statute, and such as may be implied as essential to carry into effect those which are expressly granted.”

In the course of the opinion, at page 121, this language appears:

“Such corporations, being created for convenience and economy in government, and to aid the state in legislation and administration of local affairs, are always subject, in their public capacity, to the control of the state.”

The same doctrine is announced in Markley v. Village of Mineral City, 58 Ohio St., 430. The following language is to be found at page 439 of the opinion:

“It is to be borne in mind that we are dealing with the status and capacity, not of a natural person, but of a corporate one, a mere creature of the law, an artificial entity which, having no natural rights or powers, exists and operates only by virtue of the law of its creation.”

To the same effect is Townsend v. City of Circleville, 78 Ohio St., 122. The opinion by Judge Summers follows the same course of reasoning.

To the same effect is the case of the L. S. & M. S. Ry. Co. v. City of Elyria, 69 Ohio St., 415.

I want here and now to challenge the doctrine that municipalities have ever been mere creatures of the general assembly, and offer in support of the challenge part of the very able opinion of Judge Thurman in Cass v. Dillon, 2 Ohio St., 608. The last paragraph of the syllabus states not only an unquestioned historical fact, but a sound constitutional principle:

“The constitution did not create the municipalities of the state, nor does it attempt to enumerate their powers. It recognizes them as things already in being, with powers that will continue to exist, so far as they are consistent with the organic law, until modified or repealed.”

The case arose under the Constitution of 1851 and continued to be the law of Ohio until the new Constitution of 1912.

Judge Thurman, in his very able opinion, supporting this proposition, says at page 622:

“The constitution did not create the municipalities of the state, nor does it attempt to enumerate their powers. It recognizes them as things already in being, with powers that will continue to exist, so far as they are consistent with the organic law,until modified or repealed. Thus there is no express provision that a county may make a road or contract a debt, yet no one will doubt for a moment that it may do both. Indeed, its power to contract debt is recognized, beyond even the authority conferred by law.”

It is well known that Judge Ranney also concurred in this view, though he dissented from other propositions in that case.

Judge Cooley in an early case, People, ex rel., v. Hurlbut, 24 Mich., 45, 97, 98, used very similar language with reference to the constitution of Michigan:

“First, that the constitution has been adopted in view of a system of local government well understood and tolerably uniform in character, existing from the very earliest settlement of the country, never for a moment suspended or displaced, and the continued existence of which is assumed; and, second, that the liberties of the people have generally been supposed to spring from, and be dependent upon, that system. * * *
“The doctrine that within any general grant of legislative power by the constitution there can be found authority thus to take from the people the-management of their local concerns, and the choice, directly or indirectly, of their local officers, if practically asserted, would be somewhat startling to our people.”

The historical fact is that we had a hundred and more municipalities in Ohio already in existence at the time of the adoption of our first constitution, in 1802, which were many times multiplied at the time of the adoption of the second constitution, in 1851. All were then exercising local self-government. The constitutional fathers did not even mention municipalities or cities in the first constitution, and in the second constitution granted to the general assembly certain power to restrict, from all of which it would seem a mere legal and constitutional axiom that the)'- never granted, nor intended to grant, to the general assembly of Ohio the general guardianship of all municipalities.

If all political power is inherent in the people, as written in our constitution, for the government of the state, it would seem at least of equal importance that all political power should be inherent in the people for the government of our cities and villages, and so it seemed to men like Thurman, Ranney, Cooley and Campbell, than whom there have been few greater in American jurisprudence. I prefer to follow their course of reasoning, based upon historical fact and political principles, rather than the mere dictums and dogmas of decisions holding that municipal government is government, by the general assembly.

As a corollary to this proposition of all political municipal power being in the general assembly of Ohio, the courts further crippled in a high degree its grants of power to municipalities by a super-strict construction of the grant.

The constitutional convention of 1912, in protest of that order, abolished by constitutional amendment general-assembly rule of municipalities, and sought to establish home rule. It is now for this court to correct the second evil, the superstrict construction of grant of power in matters that are peculiarly within the right of local self-government. If it be Important that the world be made “safe for democracy” in the government of nations, it would seem at least of equal importance to the people of Ohio that our state shall be made safe for democracy in the government of our municipalities, for these constantly touch us in our everyday life.

The grant of power relied upon by the city of Columbus in its contentions in this case grows out of the following statutes —

Section 3714, General Code, which reads: “The council shall have the care, supervision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.”

Section 3878, Revised Statutes, now Section 10129, General Code, pertinent parts of which read as follows: “The councils' of municipal corporations as to streets and alleys in their respective jurisdictions, subject to such regulation and restrictions as they prescribe, may grant to such companies [transporting gas], the right to lay such tubing, pipes, conduits, poles and wires therein.”

The city contends that under these sections of the statutes it is given full and final authority at least sufficient to legally contract in the language of the franchise above quoted.

The gas company, however, contends that this grant of power, by reason of it being “subject to such regulations and restrictions as they [the municipal council] prescribe,” effectually denies to the municipality the right to bind the gas company by such a provision, notwithstanding the gas company may have consented thereto and accepted the franchise, the gas company’s claim being that such a provision is ultra vires.

,, As before indicated in this opinion, the whole doctrine of the government of municipalities by general assemblies has no foundation in constitu-. tional fact or principle, so far as the same'is expressed therein. If it has any foundation at all it rests wholly in implication. But implied power is certainly not to be interpreted and applied when it is manifestly contrary to some express provision of the constitution.

Now, the Constitution of 1851, which was in full force at the time this franchise contract was entered into, contained this language, Article XIII, Section 6:

“The general assembly shall provide for the organization of cities, and incorporated villages, by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power.”

It would seem clear that this language measured to the full the restrictive power of the general assembly upon municipal government. The enumeration of these various restrictions is no more clear than the fact that restrictions upon other powers were thereby excluded. It is again the application of the old Latin maxim, as to which all courts are agreed and always have been, expressio unius est exclusio alterius.

Examine these various powers mentioned in the constitution, which the legislature may restrict. What one of them is broad enough by any imaginative feat to include the restriction sought to be made upon the city in this case? These restrictions mentioned in the constitution were restrictions against burdens upon the people in the line of taxation, assessment and debt. None of them is broad enough to include benefits, credits, advantages, income and the like. And yet the contention made by the gas company is that the city had no power to receive any benefit, any profit, from the granting or operating of such franchise.

Again, note the fact that neither this constitutional provision nor any other part of the Constitution of 1851 sought to grant any power to the municipalities relating . to municipal finances or funds of a debit or credit nature. It was merely to restrict certain powers of debt, taxation and the like. Now it is evident you cannot restrict what has no existence, and, therefore, it follows that the constitutional convention, knowing the facts, recognized these powers as already existing in the corporation sufficient for self-government and merely provided that in certain respects the legislature “may restrict.”

The gas company admits that had Section 3878, Revised Statutes, used the words “subject to such terms and conditions as they [the council] prescribe” instead of “subject to such regulation and restrictions as they [the council] prescribe” the franchise ordinance would be a valid contract and obligatory upon the company.

It must be conceded of course that the grant of power by the general assembly to the municipal government, through its council, was “to grant franchises to gas companies in its streets,” etc. Necessarily such grant of power must be in general terms, and such grant must be reasonably and liberally construed so as to effect the purposes of the statute. The legislature might well have used the language, “terms and conditions” instead of “regulation and restrictions.” If there be any substantial difference in latitude and longitude as to these terms, it would seem to be against the gas company rather than for it; for the language undoubtedly applies to. a limitation upon the powers and rights of the franchise company. Bear in mind that there is no qualifying word modifying the word “restriction.”

Now by what sort of reason, or want of it, can it be held that the word “restriction” can apply to the use and occupation of the streets and other public places, and the repair of them; but cannot apply to a restriction upon rates, upon profits, and cannot provide that when the rate shall exceed a stipulated sum a certain percentage thereof shall go to the municipality? If the village council is unlimited as to restrictions, how can it be claimed that they may not restrict in these respects ?

Much stress is laid in behalf of the plaintiff in error, the gas company, on what is known as the Zanesville case, reported in 64 Ohio St., 67. The fifth paragraph of the syllabus of that case reads:

“A municipal corporation, though holding the title to its streets, has no private proprietary interest in them which éntitles it to compensation when they are subjected to an authorized additional public burden by the construction of a telephone line therein. But being charged with the duty of keeping the streets under its control in repair, it may be allowed compensation to an amount sufficient to make the repairs rendered necessary by such additional use. It is not essential that provision be made for the assessment of such compensation by a jury.”

The statute in that case was somewhat different from the statute in this case, but both statutes, so far as they are lawful enactments, were made under the same provisions of the constitution.

I deny that the municipality’s rights are limited to a charge for “repairs.” I deny a municipality “has no private proprietary interest in them [the streets] which entitles it to compensation when they are subjected to an authorized additional public burden by the construction of a telephone line therein.”

The municipality has a proprietary interest in the streets, a most important proprietary interest. It owns and holds them in trust for the people of the city, and acting as such trustee it is charged in its fiduciary relation with the highest measure of duty to safeguard the public interests to the people of the city. There is a great burden upon the city’s highways, great dangers to its people by reason of wires, poles and other structures, and if the city in any case be given the right to regulate or restrict the use in the general terms of the statute, the compensation provided by ordinance for the benefit of the city is not thus to be limited to mere “repairs,” whether the ordinance be to a gas company, street railway company or any other public utility.

When a statute clearly confers a grant of power to do a certain thing, without placing any limitations as to the manner or means of doing it, certainly the grantee of such power is naturally and necessarily vested with a wide discretion to do such incidental things as are reasonably and manifestly in the grantee’s interests; particularly where that grantee is the public.

The same fundamental principle involved in this case was before this court in The Columbus Citizens Telephone Co. v. The City of Columbus, 88 Ohio St., 466, the syllabus of which is as follows:

“1. A municipality has the power to demand and receive from a telephone company, for the privilege of digging ditches and laying and maintaining subsurface conduits for telephone wires under its streets, compensation beyond what is necessary to restore the pavement to its former state of usefulness. (City of Columbus v. The Columbus Gas Co., 76 Ohio St., 309, approved and followed.)
“2. A stipulation in the ordinance granting the privilege, which requires the company to pay, among other considerations, a certain percentage of its gross annual receipts into the municipal treasury for the use of'the general expense fund, to which the company assented, though under protest, is not an assessment for general revenue in the nature of a tax.”

The same general doctrine has been held in other states. It is sufficient to enumerate Missouri, in State, ex rel. Subway Co., v. St. Louis, 145 Mo., 551; New Jersey, in Jersey City v. Jersey City & Bergen Co., 70 N. J. L., 360; Pennsylvania, Allegheny City v. Millville, E. & S. St. Ry. Co., 159 Pa. St., 411; Rhode Island, City of Providence v. Union Rd. Co., 12 R. I., 473; Illinois, Byrne v. Chicago General Ry. Co., 169 Ill., 75; South Dakota, City of Mitchell v. Dakota Central Telephone Co., 25 S. Dak., 409; and New York, City of Jamestown v. Home Telephone Co., 125 App. Div., 1. City of St. Louis v. Western Union Telegraph Co., 148 U. S., 92, and many other cases might be cited to the same effect.

After a very careful and thorough examination of this case and the legal principles involved, as well as of adjudications in other courts, we hold that the city of Columbus clearly had the power to contract with the gas company in the language of the franchise.

Now, to the second question. Upon what basis of the company’s receipts shall the ten per cent, be computed; on the whole receipts or only on the excess above the fifteen-cent rate?

The language of the franchise in the order in which it appears in the franchise may be subdivided as follows:

1. “The gas company shall pay”
2. “ten per cent.”
3. “of all moneys received”
4. “from the sale of all natural gas”
5. “sold at a price exceeding fifteen cents per
thousand cubic feet.”

It is claimed there is doubt about the meaning of this language; that it is ambiguous upon the question as to whether or not the ten per cent, should be charged upon the whole amount received by the gas company from its consumers, or only upon the amount after deducting the amount received at the fifteen-cent rate. In short, the question Inade is, Shall the whole amount be the basis of computation, or only the excess above “fifteen cents per thousand?”

This court is presumed to know what is of common knowledge. It is a matter of common knowledge that at the head of the great public utilities of this state there are capable, clever men; that at their right hand are competent, shrewd attorneys; and that the ordinance in question was either drafted by these men and their counsel, or before the same was passed was carefully inspected by them, or, at least, that such inspection and critical examination were made before the ordinance was accepted by the gas company. It follows as a matter of course that had it been intended by the gas company to compute the ten per cent, only upon the excess, some appropriate words would have been used, or should have been used, to clearly express that purpose.

It is not the province of this court, however, to make a new contract for the parties. The contract is clear and convincing. This provision is remarkably free from all doubt. When the price exceeds fifteen cents, then the ten per cent, is to be computed upon “all moneys received,” not upon part of the moneys received, or upon the moneys received in excess of the fifteen-cent rate.

Where there is no doubt there is no room for construction. Where there is no room for construction, there is no right of construction. The simplicity and straightforwardness of the language itself controls not only the parties but this court.

The judgment below is affirmed.

Judgment affirmed.

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

Jones, J., concurs in first and second propositions of the syllabus.

Donahue, J., concurs in third proposition of the syllabus and in the judgment.


source: Caselaw Access Project

author: Nichols, C. J.

license: Public Domain

text:
    The State, ex rel. Price, v. Frillman, Recorder of Franklin County.

      Constitutional law—Taxation — Act exempting mortgages—Upon payment of registration fee by mortgagee.

    The act of the general assembly, 107 Ohio Laws, 695, providing for the listing of personal property for taxation and for the exemption of stocks in . companies, taxed in the state, and mortgages on real estate within the state, so far as it operates to release mortgages on Ohio real estate from taxation, is invalid, being in violation of Section 2, Article XII of the State Constitution.
    (No. 15684
    Decided July 3, 1917.)
    In Mandamus.
    The facts are stated in the opinion.

      Mr. Henry S. Ballard and Mr. Frank Davis, Jr., for relator.

      Mr. Robert P. Duncan, prosecuting attorney; Messrs. Squire, Sanders & Dempsey; Mr. Walter T. Dunmore; Messrs. Strong, Desberg, Bernstein & Mooney and Messrs. Wilkin, Cross & Daoust, for defendant.
   Nichols, C. J.

The general assembly of Ohio, on March 21, 1917 (107 O. L., 695), amended Section 5372, General Code, by providing, in effect, that mortgages thereafter executed on real estate located and taxed within the state should not be required to be listed for taxation. In lieu of any form of taxation the mortgagee is .required to pay to the recorder at time of filing instrument a special registration fee of one-half of one per centum on the amount secured by such mortgage, to be placed to the credit of the undivided tax fund.

The constitutionality of this new law, as soon as the statute became effective, was challenged by action filed in this court against the recorder of Franklin county, it being therein asserted that the newly amended statute is in conflict with -Section 2, Article XII of the Constitution of Ohio, providing that “Laws shall be passed, taxing by a uniform rule, all moneys, credits, * * * and also all real and personal property according to its true value in money * *

The specific attack on the law is based on the admitted fact that by its provisions mortgages and the debt secured thereby are placed in a peculiar class differing from all -other property and are' substantially exempted from taxation, the only requirement being the payment of one-half of one per centum of the face of the debt, and this payment to be made but once, no matter if the mortgage should -continue as a live asset in the hands of the owner for any number of years. The privilege thus created does not operate in favor of holders of chattel mortgages, nor holders of bills and notes unsecured by any kind of mortgage, but is entirely limited to mortgages on Ohio real estate, the holder of the real estate mortgage escaping taxation by the payment of the arbitrary registration fee; while all other instruments calling for the unconditional payment of money must continue to be taxed annually at their true value in money.

There is no difficulty of construction to be encountered in the consideration of this statute, as it specifically exempts in effect all credits in form of real estate mortgage-notes.

The conceded effect of the law is to at once and forever withdraw from the field of taxable property all mortgages hereafter executed covering Ohio real estate.

It is admitted, necessarily, that, sometime prior to the passage of this law, it was the universal opinion that such a vital change in our tax laws could not be worked out without resort to the still cumbersome method of amending our constitution.

If it now develops that this change can be wrought by mere legislative action, then a tremendous amount of wasted effort has been expended in Ohio during the past few years by a large and sincere body of thinkers who are proponents of the classification theory in taxation. This theory has been repeatedly advanced; was considered and rejected by the recent constitutional convention; and has been submitted to the voters of Ohio in form of an amendment to the constitution, only to be decisively rejected.

Undaunted by defeat, indeed only spurred there- ' by to stronger agitation and action, it was discpvered over night that after all an amendment to the constitution was wholly unnecessary and that the general assembly always possessed the power to put in full operation in Ohio the system of classification of property for taxation purposes already in vogue in many of the states of the Union.

Thereafter the general assembly, by a nearly unanimous vote, availed itself of this newly-found power and enacted the law now assailed by the plaintiff in the instant case.

The position of those who challenge the law' is that a mortgage, or the debt secured thereby, is a credit, and that this law exempts it from taxation.

Those defending the law, while conceding that the mortgage, or the debt, as the case may be, is a credit, and that it is to be withdrawn from taxation, yet answer it is not property and the act does not exempt property from taxation.

This latter position is sought to be maintained on the theory that no new property is created by the transaction by which a mortgagor borrows money and transfers to the mortgagee, through the instrumentality of a mortgage, an interest in his real estate, to secure its payment.

It is suggested that, before the consummation of the transaction, the borrower owns the land, the lender the money; when consummated, the borrower owns the money and the lender becomes the owner of an estate in the land, for his protection, and in addition receives the personal obligation of the borrower to repay.

It is further suggested that this transaction is a mere exchange of property without the creation of any new property.

Upon this foundation, then, is sought to be built the structure not of exemption but of destruction of property; for, although before the consummation of the transaction the money in hands of the lender is taxable, as is the realty in the hands of the borrower, yet, once consummated, the money ceases to have being.

Should we adopt the reasoning of the defenders of the new law it would be a gross misnomer to characterize this change of the property as the creation of an intangible asset. It is a destruction of the very existence of the money. It vanishes into something less than intangibility. It becomes so interminably associated with the real estate in question that the state cannot impute value to the one class of property, that is, the mortgage note, since it already has seized for taxation the real estate so mortgaged. The money from a taxation standpoint has been absorbed and its identity completely lost.

The defendant seeks further to justify the new law by returning to the old-time charge against the state, that, in continuing to collect taxes from the mortgagor on the full value of the mortgaged real estate, and also from the mortgagee on the full amount of the credit, it, the state, is guilty of practicing a system of double taxation.

For instance, the prospective purchaser of a ten thousand dollar farm lacks five thousand dollars of the amount necessary to complete the transaction. He consults the money lender, and borrows five thousand dollars by mortgage on the farm. The state, it is claimed, is taxing a man of straw when it exacts its rate both from the ten thousand dollar farm and the five thousand dollar mortgage.

There would be much more virtue in the claim of double taxation if the court had under review a law, which, while requiring the mortgagee to submit his credit for taxation, at the same time provided that the mortgaged land was to go on the duplicate only to the extent of the difference between its true value in money and the amount of the mortgage.

Under the law as we find it, no relief is afforded to the real victim of double taxation, if any there be. He is left where the general assembly finds him. The real advantage, and the only apparent one, is gained by the lender of money in his entire relief from taxation.

We do not feel that it lies in the conscience of the mortgagee to avail himself of the charge of double taxation in order to defend the law.

One thing is quite certain, he is not being doubly taxed when he transfers his property from its money form to the mortgage form.

It cannot be said to have been the clear purpose of the amended law to avoid the so-called double taxation on Ohio real estate burdened by mortgage debt. If such was the purpose, it is most artfully concealed.

The contention is made that under the new law the relief will be indirectly afforded the mortgaged landowner by reason of an automatic reduction in interest rates on real estate loans. This is at best an uncertainty, and is a speculative phase of the new law with which the court cannot concern itself, and we therefore dismiss this feature of the claim of the defendants with the brief comment made.

We are convinced, however, that the supporters of the statute in question base their argument of double taxation upon a wrong premise. They take it for granted that, in every case, loaned money, the repayment of which is secured by mortgage on land, enters into or is invested in some way in the land itself, either for its improvement or for the payment of its purchase money.

A slight consideration will show this assumption to be not well founded. Money loaned on a note, which is secured by mortgage on land, may be, and frequently is, borrowed for use in some business or enterprise wholly disconnected with the land itself. The note represents the credit, and under the present system of taxation is the thing taxed, whether it is secured or unsecured. In the eye of the law a credit is a thing, even though incorporeal. The security is a mere incident. The security for the payment of the debt, to-wit, the mortgage, is not the credit, and the credit is the thing taxed.

This is of course equally true even where the mortgage is given to secure the unpaid part of the' purchase money.

We are not in sympathy with the position of defendant to the effect that the mortgage is not property in a taxable sense, but a mere credit without taxable status. The distinction sought is entirely too fanciful and without real merit.

By some rare refinement of reason it may be possible to subtly demonstrate that since the land mortgaged is already taxed in its entirety the money loaned thereon has no status as a taxable entity, but is a mere phantom without form or substance either corporeal or incorporeal.

We are not content to follow this line of logic, but do hold that the mortgage debt is included within the proper definition of the term “property” as employed in the constitution.

Certainly in practical operation both the mortgage and the note which it secures are in all respects and in the fullest sense property. They constitute a taxable credit.

If this law were upheld, there would be inevitably lodged in the general assembly the power of arbitrarily designating what property should, and what should not, bear the burden of paying the expense of government.

It is unmistakably clear that those who framed our constitution sought to prevent at all hazards the conferring of any such dangerous power on the lawmaking body.

Reliance is placed in a large measure by defendant on the principles laid down in the case of Savings & Loan Society v. Multnomah County, 169 U. S., 421. Justice Gray, speaking for the supreme court of the United States, says at page 427: “The State may tax real estate mortgaged, as it may all other property within its jurisdiction, at its full value. It may do this, either by taxing the whole to the mortgagor, or by taxing to the mortgagee the interest therein represented by the mortgage, and to the mortgagor the remaining interest in the land. And it may, for the purposes of taxation, either treat the mortgage debt as personal property, to be taxed, like other choses in action, to the creditor at his domicile; or treat the mortgagee’s interest in the land as real estate, to be taxed to him, like other real property, at its situs.”

Giving full recognition to the doctrine' thus maintained, it signally fails to give any aid and comfort to the defendant.

The old-time method of taxation of mortgages in Ohio is fully justified by Justice Gray, and the only avenue of escape he allows to the mortgagee is that he pay the taxes, to the extent of his mortgage, on the land his mortgage covers. The learned justice does not hint in the slightest degree that an act would be sustained as constitutional which exempted flatly the mortgage from taxation in hands of the mortgagee, without requiring the equivalent in the form of payment of taxes on the mortgagee’s interest in the land as real estate.

The act under consideration does not provide that after the mortgagee has escaped the payment of taxes on his credit he shall pay it in the other form.

Had it so provided, as heretofore suggested, quite another question would have been before the court.

In its present form, the court is convinced that the constitutional requirement as to uniformity of taxation of all property has been violated by the general assembly, and the law so enacted is in clear and direct conflict with Section 2, Article XII of the Constitution.

The law clearly classifies Ohio real estate mortgage indebtedness by the proposed exemption, and the demurrer to the petition must therefore be overruled.

Demurrer overruled. Writ to issue.

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


author: By the Court.

text:
    The City of Cincinnati v. The Public Utilities Commission of Ohio.

      Valuation of public utilities of municipality — By public utilities . commission•—For purpose of framing ordinance fixing electricity rates — Method of inventory and valuation — Sections 4gg-8 et seq., General Code —Passage of new rate ordinance pending valuation — Referendum approval — Depreciation of property — Non-valuation of cost of acquiring customers.

    (No. 15436
    Decided July 3, 1917.)
    Error to the Public Utilities Commission.
    The facts are stated in the opinion.

      Mr. Charles A. Groom, city solicitor, and Mr. Constant Southworth, assistant city solicitor, for the plaintiff in error.

      Mr. Edward C. Turner and Mr. Joseph McGhee, attorneys general; Mr. Freeman T. Eagleson and Mr. C. A. Radcliffe, for the Public Utilities Commission.

      Mr. Lawrence Maxwell and Mr. Miller Outcalt, for The Cincinnati Gas & Electric Co. and The Union Gas & Electric Co.
   By the Court.

The council of the city of Cincinnati on February 10, 1914, adopted a resolution requesting the Public Utilities Commission to investigate and ascertain the value of the public utilities furnishing electricity in the city of Cincinnati and vicinity, and useful for the service and convenience of the public, for use. by the city iq the framing of a new ordinance fixing maximum rates which might be charged after the expiration of the existing agreement between the parties.

Pursuant to the provisions of Section 499-8, General Code, the commission ordered the companies referred to, to-wit, The Cincinnati Gas & Electric Company and The Union Gas & Electric Company, to file a valuation of their electrical properties with the commission, as of date April 1, 1914. The order contained a schedule indicating the classifications which were to be made of the property and the general method to be followed in its inventory and valuation. Pursuant to this order the companies filed, as of the date referred to, their valuation of their property used in the electrical service.

On June 3, 1915, the commission made what is denominated in its record as a tentative valuation, notice of which was given to the parties as provided by Section 499-12, General Code. The tentative value so fixed was $8,451,579.89. The company in its report to the commission stated the value of the property to be $21,049,681. The city also made an appraisement of the property; but did not file the same, nor formally introduce any portion of it in evidence. It was, therefore, not before the commission for its consideration. The companies and the city filed protests against the tentative valuation fixed by the commission.

Numerous hearings were had and a vast amount of written, and oral evidence introduced, consisting of many schedules, inventories, appraisements and reports.

The commission, after considering this mass of evidence, on the 8th day of September, 1916, caused an entry to be made on its records fixing the final valuation of the property concerned at $8,945,-215.46. Applications for a rehearing were overruled and this proceeding is brought to set aside, reverse, vacate and modify that order.

Counsel for defendant in error point out -that the previously existing rate ordinance of the city council expired November 13, 1914, and that the commission’s valuation was not ready in time to adopt a new rate ordinance in accordance with that valuation; that, therefore, without waiting for the valuation to be completed,' the council adopted a ten-year rate ordinance on July 6, 1915, which was approved by the electors at a referendum election on November 2, 1915; and that this ordinance is now effective and this proceeding in error is, therefore, moot.

As already stated, the valuation by the commission was made pursuant to the provisions of Section 499-8 et seq., General Code. Section 499-8 authorizes the valuation “for the purpose of ascertaining the reasonableness and justice of rates and charges for the service rendered by public utilities * * * or for any other purpose authorized by law.” Section 499-9, General Code, provides that “Such investigations and reports shall show separately the property used and useful to such utility * * * which said inventories and reports shall be filed in the office of the commission for the information of the governor and the general assembly.” The succeeding sections provide that the commission shall keep itself informed through its engineers, experts and other assistants of all extensions, improvements and other changes in the conditions and value of the property, and shall, from time to time, as may be required for the proper regulation of such public utilities or railroads, revise and correct its valuations of property. Section 499-11, also, provides that such revisions and corrections shall be filed in the same manner as is provided for original reports.

It is, therefore, clear that the valuation and the proceedings by the commission were not confined to the limited purposes suggested.

As already observed the finding of the commission was based upon reports, inventories, schedules and testimony of experts and other witnesses. The commission felt compelled to rely upon expert witnesses as to the best methods to be followed in estimating property of the character involved in this proceeding. The commission states that in ascertaining the value of the physical property other than land, the cost of new production as of a date certain (in this case-April 1, 1914), together with the values of the separate items comprising the property and the unit basis of such valuation, was first ascertained. The depreciation ' on account of the existing mechanical deterioration, for age, for obsolescence, for lack of utility, or for any other cause, was ascertained by actual inspection of-the unit by the commission’s engineers. In the case of meters, transformers and underground conduit, where it was impracticable to make a complete actual inspection, the depreciation was based on the usual or ordinary life tables applicable to this class of property. By this method the commission’s engineers necessarily considered the service condition of the plant in arriving at the amount of depreciation that should be assigned to the different units, which is reflected in the final report.

The commission states that it was determining the cost of new production of the property, the existing depreciation, and thus arriving at the present or net value of the same, and was not called upon or attempting to fix a rate of return.

It concludes, “We believe the method pursued in ascertaining the value of the property is in accordance with the laws of this state and governs the commission in arriving at its final conclusion.”

Counsel for the plaintiff in error have filed a very exhaustive brief in which all of the many items included in the valuation are examined. The infirmities which are claimed to affect the different valuations are ably set forth.

After a careful examination of the briefs of counsel, together with such references to the voluminous record as we have been able to make with the assistance of references made thereto contained in the briefs, we are not able to say that the order of the commission was' unlawful or unreasonable in the main.

As stated, the valuation is shown under many heads. Most of these items seem to be justified by the testimony of those whose business it is to make such matters the subject of scientific research. Their testimony discloses that the results have been obtained by following accepted methods. There is, however, one item included in the final summary which we' do not think is justified, the item is scheduled “cost of attaching business $375,-000.” It is conceded that this item represents the cost of acquiring customers for the company.

The nature of these services is described in detail by the witnesses, and the services are said to constitute a proper item in the making up of the cost of the property of a public utility, upon which the companies owning the same are entitled to be paid.

The placing of a value upon such an item to be included in the permanent capitalization of a company, which is to be used for the purpose of fixing rates to be paid by the public during long periods of time, is necessarily uncertain, theoretical and somewhat arbitrary. The engineer of the commission, himself, testified that the amount fixed was his estimate of what it would probably cost to secure a given number of customers. It is apparent that such customers would have to be secured under varying circumstances, which, when estimated in advance, would be purely hypothetical. ■

The burden of proof was upon the companies to establish this item by direct evidence. We think this was not done in this case, and the order of the commission in so far as that item is concerned is disapproved. The order will be modified in the respect indicated.

Order modified.

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


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    Pollitz et al. v. The Public Utilities Commission of Ohio.

      Railroads — Additional stock issued—To reimburse capital account for expenditures made — Powers of public utilities commission — As to stock issued for reimbursement for expenditures-— For acquisition of property within or without Ohio—Interstate corporation may issue stock without commission’s approval, when — Section 614-55, General Code — Method of procedure.

      (No. 15486
    Decided July 3, 1917.)
    Error to the Public Utilities Commission.
    The facts are stated in the opinion.

      Messrs. Henry, Fauver, McGraw & Thomsen, for plaintiffs in error.

      Mr. Joseph McGhee, attorney general, and Mr. S. H. West, for defendant in error.
   By the Court.

The New York Central Railroad Company filed its petition with the Public Utilities Commission of Ohio on the 22d day of November, 1916, praying authority of the commission for the issuance and sale by it of $5,914,300, par value, of its common capital stock, the proceeds of which were to be used for the purposes set forth in the petition. The petition set forth the amount of the authorized capital stock of the company and the amount of the issue then outstanding. It specifically set forth a certain portion of -said stock which was reserved for certain purposes stated.

It further alleged that the company desired to issue and sell 250,000 shares of its common capital stock of the par value of $100 each for the purpose, of reimbursing its treasury for moneys aggregating $25,000,000 actually expended on capital account within five years from the date thereof, not secured by or obtained from the issue of stocks, bonds, notes or other evidence of indebtedness.

The petition contained an “Exhibit,” which showed a statement of the expenditures for which reimbursement was sought, of which something over $19,000,000 was expended for the acquisition of property, construction, completion, extension or improvement of applicant’s facilities or improvement of its service outside of Ohio, and $5,914,-306.78 for like purposes within Ohio, in the years 1915 and 1916, and averred that the proceeds of the issue, for which authority was prayed, were to be used for the purpose of reimbursing its treasury on account of the expenditures within the state of Ohio. The petition further averred that the new stock was to be issued to stockholders at par to the extent of 10 per cent, of their holdings, so that if all subscribed their allotment they would take up the entire issue of $25,000,000.

The plaintiffs in error herein, James Polhtz and Clarence H. Venner, filed their objections to the granting of the permission prayed for, and on the 5th day of December, 1916, the matter was heard by the commission upon the petition, exhibits and evidence, and the arguments of counsel.

The commission thereafter made an order upon its journal that “It appearing to the satisfaction of the Commission that the issuance and sale of said stock by said petitioner is proper and necessary for the reimbursement of its treasury for moneys actually expended by the petitioner on capital account for the acquisition of property, the construction, completion, extension and improvement of applicant’s facilities, and the improvement of its service within the State of Ohio, and that the money to be procured thereby is reasonably required for such purpose, and that said stock is not to be issued in whole or in part on account of expenditures made for operating expenses or to reimburse the treasury for moneys obtained from the issue of stocks, bonds, notes, or other evidence of indebtedness; and it appearing that said applicant is an interstate railroad and by the laws of this State is not required to secure the authority of this Commission to the present proposed issue of $25,-000,000 of its said capital stock, except as to $5,-914,300 thereof, the balance of said proposed issue being for the reimbursement of its treasury for moneys expended outside of this State, the Commission finds that the prayer thereof should be granted.”

The entry proceeded with an order granting the prayer as stated, and directed that the proceeds should be used for the purposes stated within the state of Ohio, and further provided that “Upon the first sale of any of said stock, and every six months thereafter until the same shall be entirely disposed of, said company shall make verified report to the Commission showing the terms and conditions of such sale, the amount realized therefrom, and the use and application of said moneys, and all accounts, vouchers and records relating thereto shall be open to examination and may be audited from time to time by examiners designated by the Commission.”

An application filed by the plaintiffs in error for a rehearing was overruled. It is contended by the plaintiffs in error that the commission erred in its finding that the applicant was. not required to secure the authority of the commission to the present? proposed issue of $25,000,000 of its said capital stock, except as to $5,914,000 thereof, the balance of said proposed issue being for the reimbursing of its treasury for money expended outside of this state.

As stated above, the exhibit referred to shows in detail the alleged expenditures outside of Ohio, and it is contended by the plaintiffs in error that the expenditures for such purpose are as much Ohio acquisitions by the applicant, which is an interstate consolidated railroad corporation, as if expended for the purposes referred to within the state; that the treasury of the consolidated corporation, and the Ohio portion thereof, was necessarily drawn upon to pay for any such expenditures outside of the state, as much so as for those within the state; and that the Ohio corporation has an ownership in the securities so acquired.

Section 614-55, General Code, contains the following: “No interstate railroad or public utility shall be required, however, to apply to the commission for authority to issue stock, bonds, notes or other evidence of indebtedness for the acquisition of property, the construction, completion, extension or improvement of its facilities or the improvement or maintenance of its service outside the state, or for the discharge or refunding of obligations issued or incurred for such purposes or for reimbursement of moneys actually expended for such purposes outside of the state.”

Plaintiffs in error contend that while physical property, fixed or mobile, if outside of the state, is of course within the express exception of the section quoted, intangible property, investments, cannot be so regarded, for they follow the domicile of' the owner; that, therefore, the Ohio consolidated company would be affected materially by expenditures and issues of stocks therefor.

.We think it must be conceded that there is force in this suggestion, but the matter of the issue of stocks for those purposes is not involved in this case. The application involved here does not pray for authority from the commission with respect to any stock except that covered therein, to reimburse for expenditures which the commission found had been made within this state. There is no provision in the order of the commission with respect to any other or additional stock. The shares for 'the $5,914,000 of stock are wholly separate and distinct from the remainder of the proposed issue of $25,000,000, and if the company should proceed in any illegal or invalid manner to issue the remainder of the stock that would be a matter that could be remedied by proper proceedings and without any effect whatever on the validity of the issue involved in this case.

It is further alleged that the expenditures claimed to have been made both within and without the state are such as the company was not authorized to make. The amount, the character and the necessity of the expenditures were matters the consideration and determination of which were within the jurisdiction of the commission. It was its duty to carefully examine all the facts and circumstances, and in this case a large amount of testimony touching the subjects concerned was offered and considered by the commission. Upon these its order rests,.and this court has held that it will not substitute its judgment for that of an administrative board created pursuant to an act of the legislature as to matters within its province. Before the court will interfere with an order of the railway commission, or its successors, it must appear from a consideration of the record that the action of the commission was unlawful or unreasonable. Hocking Valley Ry. Co. v. Pub. Util. Comm., 92 Ohio St., 362.

The commission having found that the issuance and sale of said stock by the petitioner was proper and necessary for the reimbursement of its treasury for moneys actually expended by the petitioner on capital account for the acquisition of property, the construction, completion, extension and improvement of applicant’s facilities, and the improvement of its service within the state of Ohio, that the money to be procured thereby was reasonably required for such purpose, and that said stock was not to be issued in whole or in part on account of expenditures to be made for operating expenses, or to reimburse -the treasury for moneys obtained from the issue of stock, bonds, notes or other evidence of indebtedness, its order will be affirmed. But as stated above, we do not indicate any opinion as to the right of the company to issue and sell the remainder, or any portion thereof, of the $25,000,-000 of stock referred to in the application.

Order affirmed.

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


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    The State of Ohio v. Schober.

      Intoxicating liquors — Sale in dry territory by licensee — Jurisdiction of probate court—-Interpretation of Section 56 of liquor license act (103 O. L., 240)—Section 1261-71, General Code — Lawful conviction of licensee in dry county.

    (No. 15539
    Decided July 3, 1917.)
    Error to the Court of Appeals of Lake county.

      Mr. George C. von Beseler, prosecuting attorney, and Mr. Harry E. Hammar, for plaintiff in error.

      Messrs. Maurer, Bolton & Wilson, for defendant in error.
   By the Court.

The defendant in error, William G. Schober, was tried and convicted by the probate' court of Lake county of unlawfully and knowingly selling certain intoxicating liquors, “not then and there having beén duly licensed.” This judgment was -affirmed by the court of common pleas. Upon error it was reversed by the court of appeals, which latter judgment is now here for review.

The record shows that Schober was a licensee in Cuyahoga county as a retail liquor dealer, and, while such licensee, sold a case of beer within the limits of Lake county.

It is conceded that Lake county was dry territory.

Under favor of Section 56 of the liquor license act, Schober challenged the jurisdiction of the probate court of Lake county to try his case. The objection was overruled. This is the sole question in this case, Had the probate court jurisdiction?

The pertinent part of this section reads:

“No licensee, agent or employe of a licensee shall be held to answer for an offense under any laws or ordinances regulating the sale or traffic in intoxicating liquors before any probate court; or before any judicial officer whose court is held without the confines of the municipal corporation or township within which the offense is alleged to have been committed, except a judge of the common pleas court.”

This language is concededly awkward and ambiguous, but, in construing it, all the various sections of the license act must be considered together in determining the meaning of any doubtful provision.

The manifest purpose of the license amendment to the Ohio Constitution, and of the license statutes, was to regulate the sale of intoxicating liquor in wet territory. Accordingly the wet territory of the state was divided into districts, each county that contained any wet territory constituting a district.

The county liquor license board was authorized to grant licenses in the wet territory. The licensee ' could conduct his business in lawful wet territory, and was given the right to be tried for any violation of any statute or ordinance regulating the sale or traffic in intoxicating liquors, by certain judicial officers, excluding the probate judge of his own county, where that county was wholly or partially wet territory.

Does the language of the statute exclude the probate judges of dry territory?

It is conceded of course that the liquor license act does not apply to dry territory and hence it follows that it could not apply to Lake county.

Section 56, above quoted, used the language, “No licensee * * * shall be held to answer for an offense under any laws or ordinances regulating the sale or traffic in intoxicating liquors.” The use of the word “regulating” is doubly significant here. It shows clearly and convincingly that the offenses referred to under that section are those that relate to “regulating” not “prohibiting.” In Cuyahoga county the sale is regulated. In Lake county it is prohibited. Schober was tried in Lake county for an act that was entirely prohibited in Lake county, not regulated, an act entirely outside of anything contemplated in the license act.

When a licensee of wet territory violates any liquor law in dry territory, he is merely the usual law violator, prosecuted as such, and in any court in which any other violator of liquor laws may be prosecuted.

The privileges of Section 56 only apply to him where he is a licensee within the general purview of the license act. i

The judgment of the court of appeals is reversed and the judgments of the court of common pleas and probate court are affirmed.

Judgment reversed.

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


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    The State of Ohio v. Shoemaker.

      Criminal law—Operating automobile ipithout owner's consent — Section I2ÓV), General Code — Indictment — Sufficiency of allegations — Bailee as owner — Pleading and proof—Variance— Section 13582, General Code — Substantial justice.

    1. An indictment that alleges ownership of an automobile in the name of the garage owner, or other lawful custodian, is sufficient under the requirements for an indictment under the larceny statute, as well as under favor of Section 12619, General Code.
    2. Where the evidence discloses such qualified ownership in the garage owner or other bailee and further discloses the name of the legal owner of the automobile, this does not constitute a variance in law to the prejudice of the defendant.
    (No. 15541
    Decided July 3, 1917.)
    Exceptions by the Prosecuting Attorney to a Decision of the Common Pleas Court of Hamilton county.
    Facts are stated in opinion.

      Mr. John V. Campbell, prosecuting attorney, and Mr. Charles H. Elston, for plaintiff in error.

      Mr. George A. Hamma, for defendant in error.
   Wanamaker, J.

The defendant in error, Toney Shoemaker, was tried in the common pleas court of Hamilton county upon an indictment charging in substance that he “unlawfully did drive and operate a certain motor vehicle, to-wit, an automobile, of the value of seven hundred dollars ($700), upon the public streets and highways of the city of Cincinnati, in said county of Hamilton and State of Ohio aforesaid, without the consent of Charles Greiwe, then and there the owner of said automobile,” etc.

Upon a plea of not guilty the state and defendant proceeded to trial. During the trial it developed that said Charles Greiwe was not the real owner of the motor car, but only had the same in his possession for the purpose of painting, trimming and repairing, at the time said Shoemaker appropriated it.

Thereupon a motion to quash the indictment was made by the defendant, and sustained by the court for the reason that the word “owner” in Section 12619, General Code, means the real owner and not one who has possession as bailee. Clearly no motion to quash was available to the defendant at this time, he by express provision of the statute having waived the same by a plea of not guilty, and the motion was inappropriately named.

What the court really did, however, was to, hold that there was a fatal variance between the charge in the indictment and the evidence, which entitled the defendant to a discharge from the indictment upon which he was then being tried.

The statute under which this indictment was framed, Section 12619, General Code, reads in substance as follows:

“Whoever purposely takes, drives or operates * * * any motor vehicle without the consent of the owner thereof, shall, * * * be imprisoned,” etc.

This is a recent act, passed in 1913 to meet a very grievous situation. No other vehicle could be so easily stolen and surreptitiously driven away with great speed and danger to the traveling public as the automobile. The public press and the police reports indicated that thousands of crimes of the kind, the country over, were being committed with comparative impunity, the state being unable in most cases to either recover the automobiles or to prove the larceny. It was called “joy riding.” Agreeable to an overwhelming public demand, particularly from the automobile owners, this statute was enacted in order to cover, not the “larcenous” taking, but any “wrongful” taking “without the consent of the owner.” Now it has been repeatedly held that in the charge of larceny, which is concededly the major and graver offense, the ownership of the property may be laid in any bailee, such as an innkeeper, a warehouseman, a pawnbroker, or anyone having lawful possession for some special purpose at the time of the “wrongful” appropriation.

The gist of the offense was not the particular ownership of the property, but the “wrongful” taking. If the taking was “wrongful,” it did not matter who owned the property in question. So far as the thief was concerned it didn’t make any difference who owned it. He did not.

Indeed it has been held again and again, so long that it now needs no citation of authority to sustain the proposition, that one thief may be convicted of stealing an automobile from another thief.

Decisions may be found in the earlier cases that hold the state to the strict requirement of the law in the matter of both pleading and proof, but that day has gone by, and gone for good, and the state is only held now to the substantials of its case, those things that meet the constitutional requirement as to indictments, that the defense has a right to know “the nature and cause of the accusation against him and to have a copy thereof.”

The question, after all, is as to whether or not there was a fatal variance between the pleading and the proof as to ownership. Section 13582, General-Code, reads:

“When, on the trial of an indictment, there appears to be a variance between the statement in such indictment and the evidence offered in proof thereof, in the Christian name or surname, or both or other description of a person therein named or described or in the name or description of a matter or thing therein named or described, such variance shall not be ground for an acquittal of the defendant, unless the court before which the trial is had, finds that such variance is material to the merits of the case or may be prejudicial to the defendant.”

The court made no finding “that such variance is material to the merits of the case or. may be prejudicial to the defendant,” and by virtue of this statute the variance is not fatal until such finding be made.

Greiwe in this case owned and operated a garage. The car in question was stored there, as thousands are every day in Ohio. The real owner of the car may have been out of the city, may have been in a foreign land; but he is entitled to the benefit of the laws of the state for the protection of his car while in the temporary custody of the garage owner, and indictments that allege ownership in the name of such garage owners are sufficient in law. Greiwe was owner enough to be lawfully possessed, and that is sufficient under this statute as well as under the larceny statute. There was no legal variance. The court was wrong in so finding. The exceptions are sustained.

Exceptions sustained.

Newman, Matthias and Donahue, JJ., concur.


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    The State, ex rel. Symons, v. Rice, City Auditor.

      Municipal corporations—Ordinances — Repeal and enactment — Merger of offices of clerk and auditor — Section 4276, General Code (106 O. L., 483)—Bond — Quo warranto.

    (No. 15595
    Decided July 3, 1917.)
    In Quo Warranto.

      Mr. D. B. Symons; Mr. G. R. Walsh; Mr. F. M. Stevens and Mr. W. D. Meals, for relator.

      Messrs. Stroup, Fauver & Rice and Mr. C. G. Washburn, for respondent. ,
   By the Court.

In the absence of a valid provision to the contrary, the council of a municipal corporation having authority to legislate upon any given subject may exercise that authority at will by enacting or repealing an ordinance in relation to such subject-matter.

The question of the constitutionality of Section 4276, General Code, as amended 106 Ohio Laws, 483, under authority of which the council of the city of Elyria passed the ordinance of November 23, 1915, merging the duties of the office of clerk of council with the duties of the city auditor, is of no importance in determining the rights of the par-' ties to this controversy, since it appears that the council of Elyria passed a later ordinance repealing the provisions of Sections 4, 6 and 10 of the original ordinance providing for the merging of the duties of these offices.

The city council having the right to pass the repealing ordinance, the present rights of the parties to this action must be determined with reference to the provisions of the existing ordinance, regardless of the provisions of the ordinance repealed, where there are no vested rights under the latter ordinance.

In an action in quo warranto brought by a person claiming to be entitled to an office wrongfully held by another, it is sufficient if the relator shows that he was duly and legally elected or appointed to the office, and gives bond and otherwise qualifies, after the judgment of the court finding that he is entitled to such office, and that the same is wrongfully withheld from him by the defendant, and before he is inducted into office.

This is especially true where the relator has tendered bond as required by the statute, which bond has not been, approved for the reason that in the opinion of the officer authorized to approve the same the relator was not legally entitled to the office.

Judgment of ouster and an order inducting the relator into office.

Judgment of ouster.

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


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    The State, ex rel. McGhee, Attorney General, v. Strawsburg et al.

      Small school boards — Short and long terms — Election of members— Failure to designate period of service — Sections 46g8 to 4702, inclusive, General Code — Interpretation of school laws.

    (No. 15600
    Decided July 3, 1917.)
    In Quo Warranto.

      Mr. Floyd A. Johnston, for relator.

      Messrs. Zimmerman & Zimmerman and Mr. John M. Cole, for defendants.
   By the Court.

In this proceeding challenge is made of the authority of the defendants, Benjamin F. E. Strawsburg, Henry L. Schaefer and J. Forest Kitchen, to act in the capacity of members of the board of education of the city of Springfield, it being averred that the defendants have no legal right to hold such office or exercise any of the functions thereof, and the prayer is that they be ousted therefrom.

When the law known as the Jung Small School Board law became effective, which was on August 2, 1913, the board of education of Springfield consisted of seven members, the terms of four of whom were to expire in January, 1914, and the terms of the other three in January, 1916. The portions of that law pertinent'to the consideration of this case are now Sections 4698 to 4702, General Code. The Springfield city school district comes within the class, which, under the provisions of Section 4698, Geperal Code, is required to have a board of education consisting of not less than three nor more than five members.

By a resolution passed July 14, 1913, said board of education attempted to meet the requirements and comply with the provisions of that act. . It was therein determined that the number of members of said board should be five, who should be elected at large; that the three members whose terms did not expire until January, 1916, should hold their positions until that date; that at the general election in November, 1913, there should be elected two members to serve the full term of four years; and that at the election in November, 1915, two members, should be elected for the full term of four years and one for the fractional term of two years. Two members were elected for the full term of four years at the election of November, 1913.

In the election of November, 1915, the defendants and five others were candidates for the office of members of the board of education of such district. The ballots on which their names appeared were headed:

“For Members of Board of Education”
“Vote for not more than three.”

No designation of or reference to the term, or length thereof, of any candidate was made on any ballot, nor had there been any such designation upon the ballots in the primary election whereat said candidates were nominated. The defendants Schaefer, Strawsburg and Kitchen, in the order stated, received the highest number of votes at said election. They were declared elected as members of said board of education, certificates of election for a term of four years each were issued, and in pursuance of that authority they assumed to qualify and enter upon, and ever since have discharged, the duties of such position—more than 15 months —the validity of their election not having been challenged until the bringing of this suit in quo warranto, April 14, 1917.

It is now contended that because of such want of designation of terms, whether for four years or two years, on the ballot or elsewhere, it is impossible to ascertain which of said candidates were elected for the four-year term and which one for the two-year term, and that, therefore, there was no valid election for either term and the certificates of election issued were unauthorized.

An examination of the sections of the General Code above cited discloses that as applied to the city of Springfield their several provisions were not in accord., and, therefore, could not be fully observed. Under their provisions no existing term should be disturbed. If necessary to accomplish the reduction in numbers required by law, two-year terms could be provided by resolution; but an election to such two-year term was limited to the year 1913. It was expressly provided in above sections that all elections thereafter should be for four-year terms; thenceforward one-half of the remainder, after diminishing the total number of members of the board by one, should be elected in the year preceding the calendar year divisible by four, and the remaining number the year following such calendar year. Under that provision, directory in its nature, two members would be elected in 1915, three in 1917, and so on. There was no provision whatever for a two-year-term member to be elected in 1915, and if only two members should be elected the board would consist of but four instead of five members, as had been determined by the board under authority conferred by law.

These provisions are inconsistent; they cannot all be enforced; therefore the rational solution of the situation seems to lie in such construction and application of the law as to make it feasible and practicable and capable of accomplishing the obvious design and purpose of its enactment, which was to create small boards of education, the terms of the members of which should be four years, and, presumably, to bring about that condition and situation at the earliest possible time. The mere order in which members are elected seems quite immaterial, and that provision might well have been regarded by the board as only directory. In the theory that all three of the defendants were in fact elected for four-year terms that is the only provision disregarded; and, ás we have seen, it is a provision in direct conflict with other and more important and essential provisions of the law.

Although the resolution provided for the election of a short-term member in 1915 such was not authorized by law, and thereafter all matters concerning the election, including notice, proclamation, form of ballots and certificate of election, proceeded in a manner consistent only with the theory that three members for the full term of four years were being elected. For the reasons we have indicated, the tenure of those members should not now be disturbed.

Writ refused.

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

Johnson, J., not participating.


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    The State, ex rel. Tailford, v. Bristline, Judge.

      Juvenile court—Jurisdiction continuing, when—Delinquent or neglected child — Petition or motion to modify order of commitment— Mandamus to compel hearing thereof.

    (No. 15551
    Decided May 29, 1917.)
    In Mandamus.

      Mr. Ben W. Johnson, for relatrix.

      Mr. Earl K. Solether, for respondent.
   By the Court.

Where a delinquent or neglected child has become the ward of the juvenile court and has been committed to an institution, under the provisions of the General Code relating to juvenile courts, the jurisdiction of the juvenile court over such child is a continuing jurisdiction, and it has authority to vacate its original order or modify the same, or make such further and ádditional orders in relation thereto as to it may seem just and proper.

The discretion of the juvenile court in relation to the care, custody and control of a delinquent or neglected child is a judicial discretion that must be exercised in good faith, and in the interest of the child, upon evidence introduced in the usual and ordinary course of the administration of justice.

Mandamus will not lie to control judicial discretion or the judicial determination of an issue by an inferior court, but it will lie to compel the exercise of such discretion and the exercise of judicial functions conferred by law upon such inferior tribunals.

Where an order has been made and entered by a juvenile court, finding that certain children are neglected and abandoned by their mother, and committing their custody to an institution named in the sections of the General Code relating to juvenile courts, upon an affidavit filed in that court charging in substance that the minor children named therein are dependent and neglected children, that their mother has deserted and abandoned them and is an unfit person to have the care and custody of them, and that the residence of the mother is unknown, a petition filed in that court by the mother, after such order has been entered, asking the court to open up and vacate the same, averring in substance that the affidavit was false, that affiant knew at the time he filed such affidavit or with reasonable diligence could have discovered her residence, that she had no notice of such proceeding, that she had not abandoned and deserted her minor children, that the affidavit and the proceedings had thereunder and the evidence offered in support thereof were false and a fraud upon the court and in fraud of petitioner’s rights, that the order was irregularly obtained, and that the petitioner, the mother, had no notice of such proceedings whatever and by unavoidable casualty and misfortune and without any fault or want of diligence on her part was prevented from appearing in court and defending her parental rights and vindicating herself against the charges made in the affidavit, and from having an opportunity to, be heard in the proceedings, states facts sufficient, either as a petition or motion, to invoke the jurisdiction of the court to hear and determine the truth of these averments.

It is the duty of the court making such order, and in which the petition is filed, to hear the same upon evidence, and to make such order and judgment in the premises as to it seems just and proper.

The demurrer to the petition is overruled, and, the respondent not desiring to plead further, a peremptory writ is allowed, as prayed for in the petition of relatrix.

Peremptory writ allowed.

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


text:
    Solze v. Solze.

      Execution — Sale of personalty by sheriff — Right of claimant to sue purchaser.

    (No. 15304
    Decided March 6, 1917.)
    Error to the Court of Appeals of Crawford county.

      Mr. L. C. Feighner, for plaintiff in error.

      Mr. Benjamin Meek and Mr. Edward J. Myers, for defendant in error.
   Judgment affirmed on authority of Patty v. Mansfield, 8 Ohio, 370.

Judgment affirmed.

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


text:
    Pennsylvania Railroad Co. v. Hobbs.

      Malicious prosecution — Probable cause.

    (No. 15406
    Decided March 6, 1917.)
    Certified by the Court of Appeals of Cuyahoga county.

      Messrs. Squire, Sanders & Dempsey and Mr. Thomas M. Kirby, for plaintiff in error.

      Mr. Harry C. Gahn and Mr. C. A. Riemenschneider, for defendant in error.
   Judgment affirmed on authority of Ash v. Marlow, 20 Ohio, 119.

Judgment affirmed.

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


text:
    Hammond, Receiver, v. MaGirl et al.

      Mechanics’ liens—Time for perfecting lien.

    (No. 15341
    Decided March 20, 1917.)
    Error to the Court of Appeals of Coshocton county.

      Mr. W. S. Merrell; Mr. Joseph L. McDowell and Messrs. Cobb, Howard & Bailey, for plaintiff in error.

      Mr. Lloyd S. Leech; Mr. James Joyce and Mr. Milo C. Ely, for defendants in error.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed on the authority of King, Gilbert & Warner v. Ship Building Co., 50 Ohio St., 320.

And coming now to render the judgment which the court of appeals should have rendered, it is hereby ordered and adjudged that the judgment of the court of common pleas herein be, and the same is hereby, reversed, and this cause is remanded'to. the court of common pleas with instructions to enter judgment in favor of the plaintiff in error herein against the board of education for the amount of its claim, as shown by its pleading,- with interest from January 22, 1914, and for further proceedings according to law.

Judgment reversed.

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


text:
    Schmidt v. Schopmeier.

      Error proceedings—Cause submitted to two judges of court of appeals—Waiver of assignment of error—That judgment against weight of evidence — Deed construed as contract for sale — Real property.

    (No. 15403
    Decided March 20, 1917.)
    Error to the Court of Appeals of Hamilton county.

      Mr. Charles Broadwell, for plaintiff in error.

      Messrs. Healy, Ferris & McAvoy and Mr. Frank J. Dorger, for defendant in error.
   This court finds that it is shown by the record that the court of common pleas held that the deed which purported to convey the interest of the plaintiff, Charles Schmidt, in the said real estate did not convey any right, title or interest of the plaintiff in said premises to the defendant; and the record further shows, that the court of appeals correctly held that while said deed did not in its legal effect operate to transfer the title held by the plaintiff to the said premises, it did operate as a contract by him to convey the same to the defendant.

This court further finds that by consenting to the consideration of the cause by two judges of the court of appeals, the plaintiff in error, Schopmeier, waived the assignment of error in his petition in error, .that the judgment of the court of common pleas was against the weight of the evidence and of the equivalent assignment that it was not sustained by sufficient evidence. But this court finds that the testimony of the plaintiff, if wholly undisputed, fails to sustain the allegation in his reply, that the said deed was obtained from him by fraud and misrepresentation. The circumstances connected with the execution of the said purported deed, as related by the plaintiff, are not sufficient in law to sustain the allegation referred to.

It is, therefore, ordered and adjudged by this court that the judgment and order of the court of appeals reversing the judgment of the court of common pleas be, and the same is hereby, affirmed, and the cause is hereby ordered to be remanded to the court of common pleas with directions to permit an issue to be made up concerning said contract and its enforcement, and for further proceedings according to law.

Judgment affirmed.

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


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    Harth v. Druggan, Receiver.

      Statute of limitations — Action to enforce stockholder's liability.

    (No. 15381
    Decided April 3, 1917.)
    Error to the Court of Appeals of Hamilton county.

      Messrs. Ireton & Schoenle and Mr. Oscar W. Kuhn, for plaintiff in error.

      Mr. J. F. Atwood and Mr. Sanford A. Headley, for defendant in error.
   Judgment affirmed on authority of Bauman v. Kiskadden, Trustee, 94 Ohio St., 130.

Judgment affirmed.

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


text:
    Emig v. The City of Toledo.

      Court of appeals — Authority to render final judgment—When reversing for error of trial court — Duty to remand for new trial, when.

    (No. 15420
    Decided April 3, 1917.)
    Error to the Court of Appeals of Lucas county.

      Mr. David B. Eppstein and Mr. William H. McLellan, Jr., for plaintiff in error.

      Mr. Harry S. Commager and Mr. Charles T. Lawson, for defendant in error.
   This court finds from the record that the judgment of the court of appeals is in effect an adjudication that the judgment of the court of common pleas is against the weight of the evidence and the judgment of reversal is affirmed. But this court on the authority of Stugard, Admr., v. P., C., C. & St. L. Ry. Co., 92 Ohio St., 318, is of the opinion that the cause should be submitted to a jury, and, therefore, the court of appeals erred in rendering final judgment, and the final judgment entered by the court of appeals is hereby reversed.

Coming now to render the judgment that the court of appeals should have rendered, it is hereby ordered and adjudged- that the judgment of the court of common pleas be, and the same is hereby, reversed, and this cause is remanded to the court of common pleas for further proceedings according to law.

Judgment accordingly.

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


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    The State, ex rel. Turner, Atty. Gen., v. The Ocean Accident & Guarantee Corp., Ltd., of London, England.

      Workmen’s compensation and employers’ liability — Insurance authorized — Section 9510, General Code — Contracts to indemnify employers — Section 1465-101, General Code (103 O. L., 91)—Provisions to be incorporated in policies — Employers compensating employes direct—Section 1465-69, General Code (103 O. L., 80)—Insurance prohibited—Wilful act or failure to observe lawful requirements — Employers not contributing to state fund-r- And employers not authorized to compensate direct.

    (No. 15075
    Decided April 17, 1917.)
    In Quo Warranto.

      Mr. Edward C. Turner, attorney general; Mr. Timothy S. Hogan; Mr. George B. Okey and Mr. Hanby R. Jones, for relator.

      Messrs. Booth, Keating, Peters & Pomerene, for defendant.

      Mr. James Harrington Boyd, amicus curiae, in cases Nos. 15075, 15087, 15091 and 15095.
   This day this cause came on to be heard on the demurrer to the answer of the defendant, and was argued by counsel and submitted to the court, and the court being fully advised in the premises finds said demurrer well taken and sustains the same.

And said defendant not desiring to plead further, it is thereupon ordered and adjudged by the court that the defendant be ousted from the further exercise of the franchise of writing indemnity policies to employers of more than five employes, except as follows:

(a) Every such contract of indemnity of an employer for loss or damage on account of injury to an employe by accidental means or on account of the negligence of such employer, or such employer’s officer, agent or servant, shall contain a specific provision, as a part of its terms, for the payment to such injured employe “of such amounts for medical, nurse and hospital services, and medicines, and such compensation as is provided by this act for injured employes; and in the event of death shall pay such amounts as are herein provided for funeral expenses and for compensation to the dependents of those partly dependent upon such employe.”

This provision of the contract has reference only to cases of injury where the injured employe elects to accept compensation for his injuries directly from his employer according to the standard fixed in Section 22 of the workmen’s compensation act.

(b) The contract of indemnity shall not contain any agreement to indemnify an employer for any civil liability for or on account of the injury to his employe by the wilful act of such employer, or any of such employer’s officers or agents, or the failure of such employer, his officers or agents, to observe any lawful requirements for the. safety of employes.

This provision of the contract has exclusive reference to cases of injury where the injured employe does not elect to receive as compensation for his injury either the judgment or award of the industrial commission sitting as a board of awards, or from his employer direct, but elects to and does exercise the right to enforce his cause of action against his employer in the courts.

(c) No contract of indemnity shall be written in behalf of an employer of five or more employes for loss or damage, nor an agreement to indemnify an employer for any civil liability, on account of an injury of an employe by accidental means, or on account of the negligence of such employer, his officers, agents or servants, whether the negligence be that of the wilful act, or failure to comply with lawful requirements for the safety of employes or negligence of any other kind or character, if such employer is not a contributor to the compensation fund, or has not legally exercised the option of carrying his own insurance under Section 22 of the act.

It is further ordered and adjudged, that the execution of this decree be postponed for one hundred days from the entrance thereof, to enable respondent to conform to its terms and provisions.

Reporter's Note — In similar proceedings in quo warranto, instituted in the supreme court by Attorney General Turner against the companies hereinafter named, the journal entry appearing above was entered on the date above set forth.

For the sake of brevity, we insert only the case numbers, names of respondents and counsel appearing, but om.it the repetition of all data which is common to each proceeding.

No. 15077. General Accident, Fire & Life Assurance Córp., Ltd., of Perth, Scotland. Mr. A. I. Vorys; Messrs. Gage, Day, Wilkin & Wachner and Messrs. Kornhauser & Morgan, for respondent.

No. 15078. London Guarantee & Accident Co., Ltd., of London, Eng. Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.

No. 15079. The Travelers Insurance Co. of Hartford, Conn. Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.

No. 15080. Royal Indemnity Co of New York, N. Y. Mr. Judson Harmon; Mr. A. I. Vorys and Messrs. Kornhauser & Morgan, for respondent.

Judgment of ouster-.

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

No. 15081. Aetna Life Insurance Co. of Hartford, Conn. Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.

No. 15082. Hartford Accident & Indemnity Co. of Hartford, Conn. Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.

No. 15085. United States Casualty Co. of New York, N. Y. Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.

No. 15086. The Casualty Co. of America, of New York, N. Y. Messrs. Ford, Snyder & Tilden; Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.

No. 15087. Fidelity & Casualty Co. of New York, N. Y. Messrs. Howell, Roberts & Duncan, for respondent.

No. 15091. Globe Indemnity Co. of New York. Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.

No. 15095. Maryland Casualty Co. of Maryland. Mr. A'. I. Vorys and Mr. Wilbur E. Benoy, for respondent.

No. 15076. Union Casualty Co. of Philadelphia, Pa. No appearance of counsel for respondent. (Service of summons had, defendant being in default for answer or demurrer, the court found the allegations of the petition thereby to be confessed to be true, and rendered judgment as stated in the foregoing journal entry.—Reporter.)


text:
    The State, ex rel. Turner, Atty. Gen., v. The Standard Accident Insurance Co. of Detroit, Mich.

      Workmen’s compensation act — Self-insurance — Application of benefits—Validity of Section 22 (103 O. L., 72)—Section 1465-69, General Code — State liability board of awards—Constitutional law.

    Reporter's Note—The foregoing case involved the same questions as the case of The State, ex rel. Turner, Atty. Gen., v. The U. S. Fidelity & Guar-

    (No. 15084
    Decided April 17, 1917.)
    In Quo Warranto.
    Same counsel for relator.

      Mr. Fred M. McSweeney, for respondent.
   This cause came on to be heard by the court upon the petition, answer and demurrer to the answer, and was argued by counsel and submitted to the court; upon consideration whereof it is ordered and adjudged by the court that said demurrer be and the same hereby is overruled; and plaintiff not desiring to plead further it is hereby ordered and adjudged that the petition be dismissed at the costs of relator.

Demurrer overruled and petition dismissed.

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


text:
    Leatherman v. The County Board of Education of Allen County et al.

      Schools — County board of education — Establishment of districts — Constitutional law.

    (No. 15395
    Decided April 17, 1917.)
    Error to the Court of Appeals of Allen county.

      Mr. W. B. Ritchie and Mr. T. R. Hamilton, for plaintiff in error.

      Mr. O. O, Barr, prosecuting attorney, and Messrs. Welty & Downing, for defendants in error.
   Judgment affirmed on authority of Cline v. Martin et al., 94 Ohio St., 420.

Judgment affirmed.

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


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

      Dismissals — No final judgment in court of appeals.

    (No. 15402
    Decided April 17, 1917.)
    Error to the Court of Appeals of Hamilton county.

      Mr. Charles A. Groom, city solicitor, and Mr. Frank K. Bowman, assistant city solicitor, for plaintiffs in error.

      Mr. Walter C. Muhlhauser and Mr. Edward A. Hafner, for defendants in error.
   It appearing from the record that no final judgment has been entered in the court of appeals in either of the three consolidated cases out of which this proceeding in error arises, it is ordered by the court, sua sponte, that the former order of this court, directing the court of appeals of Hamilton county to certify its record, be, and the same is hereby, vacated, set aside and held for naught, and a rehearing of the motion upon which said order was made is granted, and the petition in error filed in pursuance of said order is dismissed.

And the court coming now to the consideration of said motion, the court finds that there is no final order or judgment entered in either of these consolidated causes in the court of appeals of Hamilton county, and the motion to order certification of the record has been prematurely filed, and the same is therefore dismissed without consideration on the merits and without prejudice, at the costs of plaintiffs in error.

Cause dismissed.

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


text:
    The State, ex rel. Woolery et al., v. Brenner et al.

      .Constitutional law — Joint county tuberculosis hospitals.

    (No. 15389
    Decided May 29, 1917.)
    Error to the Court of Appeals of Montgomery county.

      Mr. J. A. Kerr and Mr. Joseph W. Sharts, for plaintiffs in error.

      Mr. D. W. Iddings; Mr. R. C. Patterson; Mr. P. A. Saylor and Mr. Robert R. Nevin, for defendants in error.
   Judgment affirmed on authority of Brissel et al., Commissioners, v. State, ex rel. McCammon, 87 Ohio St., 154.

Judgment affirmed.

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


text:
    Hayes v. The Hocking Valley Railway Co.

      Supreme court—Dismissals—No constitutional question involved.

    (No. 15394
    Decided June 26, 1917.)
    Error to the Court of Appeals of Lucas county.

      Mr. B. A. Hayes and Mr. C. A. Seiders, for plaintiff in error.

      Messrs. Brown, Geddes, Schmettau & Williams, and Messrs. Wilson & Rector, for defendant in error.
   Dismissed on ground that no constitutional question is involved.

Dismissed.

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


text:
    Hollowell, Exrx., v. Schraden.

      Court of appeals—Jurisdiction on appeal—Chancery cases — Mechanics’ liens.

    (No. 15491
    Decided June 26, 1917.)
    Error to the Court of Appeals of Butler county.

      Mr. Michael Minges and Messrs. Andrews & Andrews, for plaintiff in error.

      Mr. Clinton Egbert and Mr. E. A. Belden, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed on the authority of Wagner v. Armstrong et al., 93 Ohio St., 443, and this cause is remanded to the court of appeals with instructions to overrule the motion on file therein to dismiss the appeal of Eliza Ann Hollowell, executrix of the last will and testament of Francis M. Hollowell, deceased, from the court of common pleas.

Judgment reversed.

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


text:
    Kammann et al. v. Kammann et al.

      Supreme court — Dismissals — No constitutional question involved. -

    (No. 15499
    Decided June 26, 1917.)
    Error to the Court of Appeals of Hamilton county.

      Messrs. Lorbach & Garver and Messrs. Herrlinger & Dixon, for plaintiffs in error.

      Mr. Wm. Jerome Kuertz and Messrs. Kinkead & Rogers, for defendants in error.
   Dismissed on ground that no constitutional question is involved.

Dismissed.

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


text:
    Rigot v. The City of East Liverpool.

      Intoxicating liquors — Conviction and fine for unlawful sale — Commitment to workhouse pending payment—Right to jury trial — Jurisdiction of mayor.

    (No. 15524
    Decided June 26, 1917.)
    Error to the Court of Appeals of Columbiana county.

      Mr. W. F. Lones and Mr. J. C. Hanley, for plaintiff in error.

      Mr. R. G. Thompson, city solicitor, for defendant in error.
   Judgment affirmed on authority of State, ex rel. Smith, v. Smith, 69 Ohio St., 196.

Judgment affirmed.

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


text:
    The State, ex rel. B. & O. S. W. Rd. Co., v. Kelley, Judge.

      Writ of prohibition—Purpose and scope—Jurisdiction of Cincinnati insolvency court — In action for damages for change of street grade In constructing iKaduct.

    (No. 15632
    Decided June 26, 1917.)
    In Prohibition.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for relator.

      Mr. Otto Pfleger and Mr. Smith Hickenlooper, assistant prosecuting attorney, for respondent.
   Writ denied on authority of The State, ex rel. Garrison, v. Brough et al., 94 Ohio St., 115.

Writ denied.

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


text:
    The Cincinnati Traction Co. et al. v. The City of Cincinnati.

      Supreme court — Dismissals — No constitutional question involved — Appellate jurisdiction of court of appeals.

    (No. 15509
    Decided July 3, 1917.)
    Error to the Court of Appeals of Hamilton county.

      Mr. Joseph Wilby and Mr. Ellis G. Kinkead, for plaintiffs in error.

      Mr. Charles A. Groom, city solicitor, and Mr. Constant Southworth, assistant city solicitor, for defendant in error.
   Petition dismissed for the following reasons: 1st. The record does not present any constitutional question substantially affecting the rights of the parties; 2d. The court of appeals was without jurisdiction to entertain the appeal.

Petition dismissed.

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


text:
    Taylor v. The City of Toledo.

      Reversals — Facts insufficient to constitute cause of action — Court of appeals—Consideration of all assignments of error.

    (No. 15519
    Decided July 3, 1917.)
    Error to the Court of Appeals of Lucas county.

      Mr. Ben W. Johnson, for plaintiff in error.

      Mr. Harry Commager, city solicitor, and Mr. Charles T. Lawton, assistant city solicitor, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed for error of that court in reversing the judgment of the common pleas court, for the reason that “The petition of the said Everett E. Taylor in the court of common pleas stated no cause of action, and that the opening statement of counsel to the jury on the trial of said cause was in accordance with the averments of said petition.” And it appearing to the court that the court of appeals did not consider the further question presented by the petition of the plaintiff in error in said cause, this cause is remanded' to the court of appeals of Lucas county, with directions to consider all other assignments of error stated in the petition in error in that court.

Judgment reversed.

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