author: White, J. Okey, J.,

text:
    State ex rel. v. Silas Hoffman, Auditor.
    1. Where a municipal corporation, in exercising the power of assessment to pay for a public improvement, levies the assessment upon property" which was not subject to be charged therewith, and, in a suit brought to enforce the assessment, the property thus charged was ordered to be sold to pay the same, it is competent for the legislature to relieve the property thus ordered to be sold, and to require the amount improperly charged thereon to be paid out of the funds of the corporation.
    2. Where the statute granting such relief does not confer corporate power, it may be a special act.

      3. In a proceeding in mandamus to compel the auditor of the city of Cincinnati to issue a warrant upon the city treasurer, as required by the act of May 8, 1879 (76 Ohio L. 256), it is not material to inquire whether there is money in the city treasury with which to pay the warrant or not. How the warrant is to be paid is no concern of the auditor, in discharging the duties imposed upon him by the statute.
    Mandamus. Reserved in the District Court of Hamilton county.
    On tbe application of William M. Corry, the relator, an alternative writ of mandamus was issued by the District Court of Hamilton county against Silas Hoffman, auditor of the city of Cincinnati, to compel him to perform the duties enjoined upon him by the act of May, 8, 1879, entitled “ an act providing for the relief of W. M. Corry” (76 Ohio L. 256).
    The act is as follows :
    “An act providing for the relief of W. M. Corry.
    “Whereas, By an ordinance passed by the trustees of the Mt. Auburn, Walnut Hills, and Clintonviile special road district, adjoining to and since annexed to the city of Cincinnati, 15th of November, 1869, an assessment of $11 per front foot was levied for the improvement of Jefferson street, Corryville, from Calhoun to St. Clair street, which was previously ordered to be made by said trustees. And the said assessment ordinance, besides many lots 25 feet front by 100 deep>, belonging to various owners, covered blocks 25 and 32, owned by W. M. Corry, being each 400 feet square, and fronting on four unimproved streets, to wit, block 25 by Jefferson, Boone, Madison, and Hammond, and block 32 by Jefferson, Hammond, Madison, and Wayne streets, so that the assessment upon the 800 feet front of the two blocks would be $8,800, which the law made a lien only on the Jefferson street front to the depth of 100 feet; and,
    “ Whereas, The contractor claimed a lien for the Jefferson street improvements over the entire blocks, which claim being assailed by suit in the Hamilton Common Pleas, was, by a mistake of tbe law and of the facts, allowed by the court, affirmed on appeal by the district court, and afterward on error to the Supreme Court, from which last court, on suggestion of an erroneous decision of a federal question, the case was heard after three years’ delay, and relief derived by the Supreme Court of the United States ; and,
    “Whereas, In May, 1875, an order of sale of the district court aforesaid had been issued, following the decree by which said blocks 25 and 32 were appraised entire at. $12,000 each, but the sale was suspended by Justice Swayne, of the United States Supreme Court, and proceedings were superseded in the state courts until 1878. The federal court docket not permitting an earlier hearing, but which order for sale is now being enforced so as to sacrifice the entire blocks for the making of one street out of the four on which they front respectively; and,
    “Whereas, Since the decree in this case the courts of Ohio have decided that the limit of the street contractor’s lien upon undvided blocks extends only to the depth of 100 feet, if that be, as it is here, the usual depth of lots, and consequently the counsel on both sides, the parties, and the court were mistaken in allowing it to extend over the entire blocks 25 and 32, or four times as much property as should have been charged, leaving nothing for the other three streets, which mistake they would correct if the unavoidable delay of over three years in the federal court had not cut off the writ of error; therefore,
    “ Section 1. Be it enacted by the General Assembly of the State of Ohio, That the auditor of the city of Cincinnati be and he is hereby authorized and required to ascertain the actual value of the Jefferson street front of blocks 25 and 32, Corryville, 100 feet deep, in proportion to the total appraised value aforesaid, and that shall be the extent of the contractor’s lien. The said W. M. Corry shall pay his part of the assessment according to the law at the time said lien took effect; and the city the remainder thereof, within ninety clays from the time when said reassessment is made. If the said Corry, at the expiration of said time, is in default of payment, then the part of the premises above designated shall be sold. The city auditor shall issue his warrant upon the city treasurer for the amount to be paid by the city, to be paid out of the general fund of said city, and the same shall be a sufficient voucher without other proceedings.
    “ Sec. 2. This act shall take effect and be in force from and after its passage.
    James E. Neal,

      Speaker of the House of Representatives.

    Jabez W. Fitch,
    Passed May 8, 1879. President of the Senate.”

    The facts upon which the relator founds his claim to relief, are substantially set out in the preamble of the act.
    The defendant sets up in answer to the alternative writ, that the act sought to be enforced is unconstitutional, and, therefore, void.
    In regard to the contract under which the improvement of Jefferson street was made, as mentioned in the act, he makes the following averments: “ That the special road district of Walnut Hills, Mt. Auburn, and Clintonville, being then a separate and distinct municipal corporation under the laws of Ohio, after proceedings had in accordance with law in that behalf, in November, 1868, contracted with Hugh Campbell for the improvement of Jeff'erson street, between Calhoun and St. Clair streets, in said special road district, by the terms of which said contract it was expressly agreed, among other things, that ‘they/ meaning the said trustees, ‘ shall, on acceptance of the work, make an assessment on the front foot, by ordinance, on all lands bounding and abutting on that part improved by said Hugh Campbell, and at the rates before stated; and' the said Hugh Campbell freely agrees to receive the said assessment in full payment and discharge of all obligations to him on the part of said special road village; and the said Hugh Campbell will assume the collection of said assessment from the owners or proprietors of said lots, without charge or cost of any sort to the special road village (and in no event will the special road village or the trustees be held liable for the expenses of said improvement); ’ that, afterward, to wit, on the 20th day of February, 1869, the said improvement having progressed in the meantime, the said Campbell having taken in a partner, one John Gaynor, to assist him in the work, an additional contract was entered into, between said trustees and' Campbell and Gaynor, for said improvement, vykich provided, among other things, that they,’.meaning the said trustees, shall, on acceptance of the work, order_and cause to be made out an assessment levied on the front foot, by ordinance, on the lands fronting and abutting on that part improved by said Campbell and Gaynor, at the rates before stated; and the said Campbell and Gaynor agree hereby to receive the said assessment in full payment and discharge of all obligations to them on the part of said special road village, on conditions that said special road village, by the trustees thereof, shall have performed all of their duties herein in accordance with law and this agreement.’ ”
    The answer also avers that the work was fully performed by the contractors, in accordance with the agreement.
    It was also averred, in the answer, that the special road district of Walnut Hills, Mt. Auburn, and Clintonville was annexed to the city of Cincinnati, March 10, 1870, and, at the time of the annexation, all of the property of the special road district was transferred to and became the property of the city, and the city assmmed and agreed to pay, within a reasonable time, all the liabilities of the said special road district; that there was not, at that time nor since, any debt against the same by reason of said improvement of Jefferson street: that, by reason of said transfer, the city obtained a vested interest in said street, free of any debt or charge.”
    It is also set up, that there is no money in the treasury of the city to the credit of the general fund, not otherwise appropriated by law, with which to meet the warrant herein sought to be obtained.”

      A demurrer was filed to the answer ; and on the question thus raised, the case was reserved to this court for decision.

      Bonham § ForaJcer and J. J. Glidden, for the relator,
    cited: 1 Dillon on Municipal Corp. 143 ; Cooley’s Cons. Lira. 235, et seq.; Town of Guilford v. Board of Supervisors, 13 N. Y. 143; United States v. Railroad Co., 17 Wallace, 322 ; 57 N. Y. 189 ; 41 Cal. 530; 31 N. Y. 164 ; 20 Ohio St. 362; 5 Otto, 332; 17 Ohio St. 608; 64 N. Y. 100; 42 Cal. 446; 76 Ohio L. 256; 21 Ohio St. 42; 22 Ohio St. 475.

      Kumler, Crosby ¡f Ampt, for the respondents :
    The legislature had no authority to pass the act. Art. 1, § 10 U. S. Con.; art. 11, § 28 Ohio Con.; 27 Ohio St. 426 ; 37 Barb. 440 ; Cooley’s Con. Dim. *232; 13 Nev. 439 ; 33 Vt. 283 ; 34 Penn. St. 496 ; 9 Minn. 273; 42 Barb. 549 ; 60 Me. 124; 53 N. Y. 128; 64 N. Y. 91.
   White, J.

The contract between the trustees and the contractors, as set up in the answer, bound the former, on the acceptance of the work, to assess the value thereof, as ascertained by the rates at which it was to be performed, on all the lands abutting on the improvement. And the agreement on the part of the contractors, that they would receive the assessment in full payment of the work, was subject to the condition that the assessment should be made by the trustees in accordance with law and the agreement.

The assessment contemplated by the agreement was evidently a valid assessment, for the full amount due to the contractors under the contract.

By the adoption of the municipal code of May 7, 1869, the Mt. Auburn, Walnut Hills, and Clintonville special road district was created an incorporated village for special purposes. 66 Ohio L. 149, § 6.

By section 51 of that act the trustees of such villages were invested with the exclusive jurisdiction of all public roads, streets, and alleys constructed or to be constructed within the limits of the corporation ; and they were authorized “ to lay out, establish, open, widen, improve, straighten, keep in order and repair roads, streets, and alleys.”

By section 54 it was provided that the “ trustees shall have power to make and publish, in the same manner as other corpox*ations, such by-laws, resolutions, and ordinances as to them shall seem necessary to carry into effect the foregoing powers; and shall have, in all respects, the like rights and remedies in the enforcement of such by-laws, resolutions, and ordinances as are herein given to other municipal corporations.”

The power of the trustees to assess the abutting property to pay for the improvement was subject to the limitation prescribed by section 542 of tbe municipal code. 66 Ohio L. 241. The section is as follows: “ In making a special assessment according to valuation, the council shall be governed by the assessed value of lots where the land is subdivided and the lots are numbered and recorded. Where there are lots which are not assessed for taxation, or there is land which is in bulk and not subdivided into such lots, the council shall fix the value of such lots or the front of such land to the usual depth of lots, by the average of twc blocks, one of which shall be next adjoining, on each side If there are xio blocks so adjoining, the council shall fix the value thereof, so that it will be a fair average of the assessed value of other lots in the neighborhood.”

The limitation contained in this section upoxx the power of makixxg assessments is applicable to assessments levied upon the property abutting on the improvement in proportion to its frontage, as well as to assessments levied upon such property in propox-tion to its taxable valuation. The City of Cincinnati v. Oliver et al., 31 Ohio St. 371.

The blocks 25 and 32, owned by the relator, were not subdivided into lots which were numbered and recorded. The usual depth of lots in the two adjoining blocks was one hundred feet; and it was the duty of the trustees, in assessing the px’operty of the relator, to have limited the assessment to a corresponding depth. Instead of doing so, however, they extended the assessment to the entire depth of the' blocks, four hundred feet.

The assessment, therefore, was not made in accordance with law; and the contractors were not required, under their agreement with the trustees, to receive it in full payment for the work.

"Where the amount that could properly be raised by assessment was insufficient to pay for the work, section 543 prescribed the mode in which the deficiency was to be supplied. The section is as follows: “'In no case shall the tax specially levied and assessed upon any lot or lands for any improvement, amount to more than fifty per centum of the value of such lot or lands, after the improvement has been made, and all cost thereof exceeding said per centum that would otherwise be chargeable on such lot or lands, shall be paid by the corporation out of its general revenue

Had the trustees observed the statute, in making the assessment, the cost of the improvement over and above fifty per centum of the value of the portions of the blocks 25 and 32, subject to assessment, would have been payable out of the general revenue of the village; and by the annexation, the same liability, if not discharged, would have devolved upon the city.

The liability is claimed to have been discharged by the recovery of a judgment in favor of the contractors against the relator, subjecting the whole of the blocks to sale for the payment of the cost of the work.

It does not appear that the village was a party to the proceeding in which the judgment was rendered. But however this may haveb.een, it is manifest that a great wrong was done to the relator, by subjecting to sale property which was not by law subject to assessment. This error originated with the trustees in levying the assessment upon .the whole of the blocks, instead of restricting it to the depth of one hundred feet. The same ■ error was carried out in the proceedings to enforce the assessment.

The effect of the error was to exempt the village from the portion of the cost of the improvement, which it ought to have borne, and to impose it upon the property of the relator. The object of the statute in question is to correct this wrong, and to relieve the relator of a burden, which, in justice, ought to be borne by the public. Of the power of the legislature to pass the statute we entertain no doubt. The principle upon which such legislation is founded was declared by this court, in the case of The State ex rel. v. The City of Circleville, 20 Ohio St. 362. It has also been recognized by the Supreme Court of the United States, in the ease of New Orleans v. Clark, 5 Otto, 644. And the same doctrine is found in many other authorities, to which it is not necessary hereto refer. Where the public, through its agents, wrongs an individual, it ought, upon the plainest principles of justice, to be required to make reparation.

The objection suggested in argument, that the relief, if granted at all, should have been granted by a general law, is not well taken.

The subject-matter of the act is of a local and temporary nature, and where the statute granting the relief does not confer corporate power, it may be a special act. State ex rel. v. The Judges, 21 Ohio St. 1; State ex rel. v. Davis et al., 23 Ohio St. 434; State ex rel. v. Covington, 29 Ohio St. 102.

There is no validity in the claim set up by the defendant, that there is no money in the treasury of the city with which to pay the warrant, should one be issued.

The duty enjoined on the defendant as auditor of the city to issue the warrant is not made dependent on whether there is money in the treasury to pay the warrant. On ascertaining the amount that ought to be paid by the city, in the mode prescribed, he is directed to issue his warrant upon the city treasurer for the amount so ascertained, to be paid out of the general fund of the city, and the same is-declared to be a sufficient voucher. The duty of paying the warrant is devolved on the treasurer, and whether he has funds or not with which to take up the warrant is no concern of tbe auditor in discharging the duties imposed upon him by the statute.

Peremptory writ awarded.

Okey, J.,

having been of counsel in the original suit, took no part in the decision of this case.


source: Caselaw Access Project

author: Boynton, J. Okey, J.

license: Public Domain

text:
    Makemson v. Kauffman et al.
    1. County commissioners have power to vacate an order, previously made at the same session, dismissing a petition for a road improvement for want of jurisdiction to make the improvement.
    2. The death of one petitioning for a road improvement before the final order is made therefor, whose name is not withdrawn by those succeeding to the title to his land, does not affect the authority of the commissioners to count his name as one subscribing for the improvement.
    3. It is no ground for enjoining proceedings for a road improvement that one or more signed the petition therefor, upon the promise of others to pay all assessments that might be made on his or their lands, to defray the cost of its construction.
    4. In determining who are land owners within the meaning of the statute, resident tenants in common of undivided lands who hold otherwise than as heirs, are to be counted as if they were owners in severalty.
    5. In determining whether or not a majority of resident land owners, who, as reported, will be benefited by a contemplated road improvement, were petitioners for the same, the commissioners are not authorized to count, in favor of the improvement, the names of those who signed a former petition for a similar improvement over the same line, but which former petition had been abandoned.
    6. Under the fourth section of the act above referred to (71 Ohio L. 94), it was the duty of the viewers and surveyors in their report to include a list of all the lots and lands, which, in their opinion, would be specially benefited by the improvement, whether such lots or lands were partly within the limits of a municipal corporation or not; and, hence, where the viewers and surveyor, at the instance and solicitation of those interested in the improvement, omit from their report, lands lying within the assessing district, which, in their opinion, are equally benefited with those reported for assessment, for the purpose of making it appear that a majority of resident land-owners, whose lands are benefited by the improvement, are in favor of the same, an injunction will be granted restraining the commissioners from ordering an improvement founded on such report.
    7. The county commissioners are not authorized to make the order for the improvement provided for by section five of the act aforesaid, where the report of the viewers and surveyor is silent as to the public necessity or utility of the improvement.
    8. A petition for an injunction stated facts which, if true, entitled the plaintiff to the relief prayed for. The court, before answer, on motion therefor, vacated the injunction and dismissed the petition. Held, that the order dismissing the petition was erroneous.
    Error to the District Court of Logan county.
    The action below was brought by the plaintiff in error against the commissioners of Logan county and others, to enjoin the commissioners from contracting for the construction of a road improvement as prayed for by the petition of J oseph N. Kauffman and others. Erom the facts stated, it appeared that in April, 1874, the commissioners, upon said petition, appointed viewers and a competent surveyor, as required by the second section of the act relating to the laying out and improvement of highways, as amended March 31, 1868 (S. & S. 673), to examine the route of the proposed improvement, and report as required by the fourth section of that act. The committee reported in August then next, and on the 7th day of October following, the commissioners proceeded to determine whether a majority of the resident land-owners in said county, whose lands, as reported, would be benefited by said improvement, had signed a petition for the same, and finding a majority opposed to the improvement, entered an order dismissing the petition.
    On the 10th of October, 1874, the order dismissing the petition was rescinded, and, on the 19th of the same month, the commissioners, on further consideration, determined that a majority of said resident land-owners had signed the petition for the improvement, and, thereupon, ordered the same to be made, and that the lands of the plaintiff, among others be assessed to defray the expense thereof.
    It further appeared, that, in determining whether a majority of resident land-owners had signed the petition for the improvement, the commissioners counted the name of Andrew Sipe, a non-resident of the county; also Abraham Erantz, who, after signing the petition, and before final action thereon died. It also appeared, to the knowledge of the commissioners, that said Erantz, Elias Cookston, and Samuel Heddings, signed the petition in consideration of a promise of others interested in the improvement, that the latter would pay whatever assessments were made on the lands of the former by reason of the improvement. ‘ That TI. C. Moore and-Moore, tenants in common with two others, signed said petition, and were counted as one person in favor of the improvement; and that, by counting all the foregoing, a majority of two only were found to be in favor of the improvement.
    It was further alleged, that the viewers and surveyor did not file, in the office of the auditor, a report showing, by a statement of facts or otherwise, public necessity for said contemplated improvement. And, further, that in the year 1871, a petition from said Kauffman and others was presented to the commissioners, asking for an improvement of a road over said route, by “ opening, straighteniug, widening, grading, graveling, culverting, and bridging” the same, and that, said petition having been abandoned, on February 25, 1874, the petition on which the improvement was. ordered, asking for an improvement by “ laying out, opening, etc.,” was presented; and that four persons, namely, Detrick, Wilson, Hostettler, and Gray, whose names appeared on the petition of 1871, but who had refused to sign the petition on which the improvement was ordered, were counted in making up the majority of landowners favoring said improvement, and that all the foregoing persons were counted in order to create an apparent majority in favor of said improvement.
    It was further alleged that, “ the lands of D. W. Mc-Cracken, within thirty-five rods of the east end of said proposed improvement; the lands of Henry Dachenbach, a few rods further therefrom; the lands of M. W. Kuman and John Carter, within half a mile thereof; all the lota and lands in the town of Kegraff, within one-half mile of said improvement, and the lands of many persons between said town of Kegraff and the west end of said proposed improvement, were not noticed or reported at all upon the schedule of lands along the line of said proposed improvement, which ought to be assessed for the expense of the same, but were wholly omitted by said viewers and engineers, by procuration and solicitation of said defendant, Kauffman, and other persons in favor of said proposed improvement, from their said schedule and report, for the purpose and with the intent, fraudulently, to create an apparent majority of said land-owners in favor of said proposed improvement. All of the said land-owners whose lands were so omitted from said schedule and report of said viewers and engineers are opposed to said proposed improvement, and there lands are benefited as much by said proposed improvement as any of the lands reported by said viewers and engineer is benefited thereby, if any of said lands are thereby benefited at all.”
    A preliminary injunction was granted enjoining the commissioners from letting or contracting for the work of construction, which injunction, on motion in the common pleas, was vacated and the petition dismissed. The plaintiff appealed to the district court, where the cause went to hearing, without answer, on the “ petition, record, and motion,” resulting in a like judgment to that rendered in the court of common pleas. The judgment dismissing the petition is assigned as error.

      McLaughlin & Dow, for plaintiffs in error:
    I. We claim that the county commissioners — after having fully heard said matter, made an order finding that there were not a majority of resident land-owners reported as benefited, asking for said improvement, and dismissing such proceedings — have not the power, upon a subsequent day, to set aside said order dismissing such proceedings for said improvement, without a statute authorizing them to do so.
    The county commissioners are clothed with only limited and special powers. They can not exceed the authority given them by statute, and are limited to the exercise of those powers which are specifically conferred upon them by law. Corry v. Gaynor, 22 Ohio St. 592; Roberts v. Easton, 9 Ohio St. 98; Anderson v. Commissioners, 9 Ohio St. 635; Gallia County v. Holcomb, 7 Ohio, 1 pt. 232; Hamilton County v. Mighels, 7 Ohio St. 109; Treadwell v. Hancock County, 11 Ohio St. 183-190.
    They have no authority given them, after the proceeding has been dismissed, to reinstate it at a subsequent meeting or session; but the only remedy is for the petitioner to commence proceedings de novo.

    II. That the commissioners have no right to order the improvement of a road unless the viewers shall report that “'public necessity” requires such improvement, or showing the public necessity of the contemplated improvement.
    The viewers made no such report. S. & S., § 4, 673, 674.
    That without such report the commissioners have no power to make the order. S. & S., § 5, 675, 676.
    The petition shows that no necessity can exist for such an improvement, hence the viewers refused to report such necessity.
    III. That on the hearing which the county commissioners made the order for the improvement of said i’oad, there were not, in fact, a legal majority of petitioners asking for the improvement, although the commissioners found there was a majority of two (2).
    1. Andrew Sipe was a non-resident of the state. S. & S., § 5, 676.
    2. Abraham Erantz was dead, and not a “resident landowner” at the time the order for the improvement was made. Newcomb v. Fiedler, 24 Ohio St. 463.
    3. Co-tenants in common were counted. This was illegal. S. & S. 676.
    4. Petitioners for an abandoned route, and who were opposed to the new route, were counted. This was also illegal. 27 Ohio St. 218; Story on Agency, 474.
    5. The petitioners who were bribed to sign should not have been counted.
    IV. The viewers were fraudulently procured to strike from the schedule of lands benefited, and that ought to be assessed for the same, certain lots lying adjacent to said improvement. S. & S. 676.
    V. As to injunctions, see Kerr on Injunctions, § 5, 572; 20 Ohio St. 360; 22 Ohio St. 584; 9 Ohio St. 98; Id. 635; 12 Ohio St. 642; 19 Ohio St. 78; 1 Disney, 196; 24 Bart. 187; High, on Injunction, § 884.

      Reman § Reman, also for plaintiffs in error.

      William Lawrence and Joseph II. Lawrence, for defendants :
    The judgment must be affirmed for several reasons—
    I. In support of the judgment, whatever must have been-proved to make out a ease will, on error, be presumed to-have been proved. Christy v. Douglas, Wright Sup. Court, 483 ; Mathis v. McCord, Wright, 647; Smythe v. Sproul, Wright, 757; Bethel v. Woodworth, 11 Ohio St. 393, 397; Taylor v. Fitch, 12 Ohio St. 169; Johnson v. Mullen, 12 Ohio, 10; Palmer v. Yarrington, 1 Ohio St. 253, 261; Gettings v. Baker, 2 Ohio St. 21; Nott v. Johnson, 7 Ohio St. 270; Shroyer v. Richmond, 16 Ohio St. 455; 20 Ohio, 344.
    It will therefore be presumed, if necessary, that material, allegations of the petition were disproved.

    The want of answer does not change the case. Hollister v. Reznor, 9 Ohio St. 6; Ohio Life Ins. Co. v. Goodin, 10 Ohio St. 563.
    Where a petition fails to state sufficient facts, a judgment on it is erroneous by the code, section 89 ; but there is no provision which requires this court, on error, to hold that every allegation of a petition, not controverted by answer,, was proved, or that material allegations were not disproved..

    The effect of the code, sections 127, 376-598, is that evi■dence will or may be required, even in default of answer. 'The code, sections 290-296, supports this view.
    II. The petition for injunction is premature. It does not ■allege that the proposed road will take any of plaintiff’s land. His only complaint is his liability to an assessment.

    1. The plaintiff had no right to an injunction, until after final judgment by the commissioners, after receiving the report of the “ committee of apportionment.” Until then, it can not be known that the plaintiff will be assessed.

      a. This is so by the statute of May 13,1868 (S. & 8. 677). The court can only “ enjoin the collection of any tax or assessment levied or ordered to be levied.” The whole proceeding is statutory, and the remedy given by it, must be deemed exclusive. Expressio unius exclusio alterius.

      \b. The same result would follow from general principles. Williams v. Sadler, 4 Jones Eq. 378.

      c. There is for the plaintiff*a “plain, adequate, and complete remedy at law,” by making his objection before the commissioners. Storrs v. Payne, 4 Hen. & M. 506; High, on Injunctions, § 44-82-371; McBride v. Chicago, 22 Ill. 574; Ottand v. Chicago, 25 Ills. 43; Mayor v. Mesesole, 26 Wend. 132; Heywood v. Buffalo, 14 N. Y. 534; Blake v. Brooklyn, 26 Barb. 101; Frevert v. Finfrock, 31 Ohio St. 621.
    III. The petition was properly dismissed, because it ■shows no right to an injunction. It claims an injunction on four grounds:
    (1.) That the county commissioners declared in their record that the requisite majority of the land-owners petitioned for the road, when, in fact, this majority was made up by counting persons not entitled to be counted.
    (2.) That the viewers and engineer, in their report, did not show by a statement of facts, the public necessity of the improvement.
    (3.) That a part of the middle portion of the proposed Improvement is not on any road previously established.
    (4.) That the viewers and engineer, in their report of persons who ought to be assessed, omitted certain persons, by •.solicitation of defendant, Kauffman, with intent fraudulently to create an apparent majority of land-owners petitioners in favor of the road.
    To these objections, in the aggregate, there are sufficient .answers:
    1. The record of the commissioners shows their decision .and judgment in favor of the' proposed improvement, and this is upon the authority Anderson v. Comm’rs, 12 Ohio St. 642, “ evidence of the [proper]_ establishment of the road, although unaccompanied by proof of the essential requisites to the exercise of jurisdiction.”
    2. Their finding is conclusive on every question of fact, and can not be reviewed by a court of chancery. 12 Ohio St. 645.
    A court of equity can not review the evidence upon which ¡another court — even a justice of the peace — has decided any fact, but the judgment is conclusive. McCarty v. Burrows, 2 Ohio, 20-22, 23; Reynolds v. Reynolds, 3 Ohio 268; Leiby v. Ludlow, 4 Ohio, 469.
    The approved doctrine is, that courts of equity may enjoin municipal bodies from doing acts not authorized by any law, but can not interfere with their decisions on evidence in relation to subjects over which the law gives them jurisdiction and power to hear evidence. Belknap v. Belknap, 2 Johns. Ch. 467; Tucker v. Freeholders, Saxton, 282; Bell v. Bayne, 2 Stewart, 414; Lawton v. Comm’rs, 2 Caine, 182; Walker v. Smith, 21 Howard, 579.
    “Acts done, which pre-suppose the existence of other .acts, to make them legally operative, are presumptive proofs of the latter.” 12 Wheat. 70; 2 Ohio St. 241; 4 Ohio St. 112; 17 Ohio St. 37; 7 Ohio (pt. 2), 190.
    3. The action of the viewers, in deciding who should bo .assessed, is presumed to have been in good faith, and it was open to review by the commissioners. The allegation of fraud is wholly insufficient. Frazier v. Brown, 12 Ohio St. 294-312.
    The allegation is not against the viewers.

    IY. The county commissioners had power at their Octoher session, 1874, to set aside their order on a previous day of the same session. It is an incident of their quasi corporate power, necessary to correct mistakes and do justice. Huntington v. Finch, 3 Ohio St. 447; Dial v. Halter, 6 Ohio St. 228 ; Dillon on Municipal Corporations, § 55 ; Campbell v. Park, 32 Ohio St. 544.
    V. “ The public necessity of the contemplated improvement ” is not denied by the petition.
    On this subject the petition makes two points. To the first we reply :
    1. The act of March 31, 1868, requires the viewers and engineer to “make a report to the commissioners, showing-the public necessity of the contemplated improvement.” 65 Stat. 41; S. & S. 673, 674.
    It will be presumed this was done. The petition does not show there was no such report. This can not be done-unless by “ specific allegations.” Frazier v. Brown, 12 Ohio St. 294.
    The petition only alleges that the viewers and engineer never “ made report showing by a statement of facts or otherwise the public necessity of said proposed improvement.” This expression “ or otherwise” must be construed on the maxim “ noscitur a sociis,” as meaning only by a similar showing — not that the report did not in any manner show or aver that “ the public necessity requires the road to be made.”
    2. Usage makes law. The form in “ Raff’s Road Laws,” p. 206, for the report of viewers on a state road, is, “ that in their opinion the public convenience requires the establishment of said road.” If the report avers that there is a public necessity for this road, that is all the statute requires. This is the usage, and is sufficient. Miller v. Graham, 17 Ohio St. 8. The petition does not deny that the report avers this.
    .3. The plaintiff’s remedy is by motion before the commissioners, or by petition in error. Kellogg v. Ely, 15 Ohio St. 67; Frevert v. Finfrock, 31 Ohio St. 621.
    • ■ Second. The petition alleges that “ in fact said proposed improvement is not demanded by public utility or necessity.”
    The decision of the commissioners in favor of the road is conclusive. Bowersox v. Watson, 20 Ohio St. 507; Coen v. White, 8 Ohio St. 233; Hays v. Jones, 27 Ohio St. 219, limits the court to an inquiry only as to “ the jurisdictional facts.”
    VI. The plaintiff can make no question as to the requisite number of petitioners.
    VII. The petition avers that certain lands were “ omitted by said viewers and engineer by procuration and solicitation of said defendant, Kauffman, and others, . . •. with the intent, fraudulently, to create an apparent majority ” for the road.
    1. This is no sufficient allegation of fraud. Frazier v. Brown, 12 Ohio St. 294.
    2. At most, it only charges a fraudulent intent, with no fact stated to justify the brutum fulmén. The intent is immaterial. There is no charge against the viewers.

    3. The action of the commissioners is conclusive against the allegation.
    4. The acts of March 31 and May 9, 1866 (S. & S. 673), give a remedy by authorizing the commissioners to hear and decide all such questions. A party who will not avail himself of this remedy when he can, can not allege his own laches to give jurisdiction to a court of equity. Kellogg v. Ely, 15 Ohio St. 667; Frevert v. Finfrock, 31 Ohio St. 621.

      West, Walker &¡ Kennedy, also for defendants in error.
   Boynton, J.

The action of the commissioners on Octobe: 10, 1874, in rescinding the order of the 7th, dismissing the petition for the improvement for want of power to order the same, will be presumed, there being no averment to the contrary, to have been taken at the same session at which the order of dismissal was made. This action, therefore, was fully authorized. Until the session was closed, the power of the commissioners over all orders made upon the subject-matter of the road improvement was fully and completely within their control, and the-power to set aside their previous order was as fully possessed, as was the power in the first instance to make it. ¥e must therefore examine the questions arising in the ease, as if no action had been taken on the subject-matter of the improvement by the commissioners prior to the date at which its construction was ordered. If the petition of the plaintiff stated a cause of action, it is clear that the-district court erred in dismissing it. Rush v. Rush, 29 Ohio St. 440. No answer having been filed taking issue with any of its allegations, or setting up any new or affirmative-matter, the plaintiff, upon final hearing, would have been entitled to judgment. The vacation of the injunction, upon-motion and proof, did not authorize or warrant the dismissal of the petition. The case should have been retained for trial, and if no issue was joined by answer, such relief' should have been awarded to the plaintiff as his petition-showed him entitled to, without regard to the disposition made of the motion to vacate the injunction. That a cause of action was stated in the petition, we entertain no doubt.. In the first place, it appears from the facts stated in the petition, that, the commissioners acquired no jurisdiction to-make a final order for the improvement. A petition by a majority of the resident land-owners of the county, whose lands were i-eported as benefited, and for assessment, was a condition prerequisite to the acquisition of jurisdiction by the commissioners to make such order. Hays v. Jones, 27 Ohio St. 218. Non-resident petitioners could not be regarded. They had no more voice in the matter than if they owned no lands-in the vicinity of the improvement. Andrew Sipe, therefore, ought not to have been counted as a petitioner, although, he was the owner of lands within the assessing district,, that were reported as benefited by the improvement. The-name of Abraham Frantz, we think, was properly counted..

He was one whose lands were reported by the viewers- and surveyor as benefited by the improvement, and he had signed the petition. This was all that was required by the words of the statute to authorize the commissioners to-count his name. If those succeeding to the title to his-lands were opposed to the improvement, they should have-withdrawn his name from the petition, before the commissioners took final action thereon.

Nor does it seem to us that the mere fact that Frantz,. Cookston, and Ileddings signed the petition for the improvement in consideration of the promise of others to pay whatever assessments might be made upon their lands respectively, made it the duty of the commissioners to reject their names. It does not appear that they were opposed to-the improvement, nor that they did not believe it demanded by the public convenience and welfare. "What would be the effect of buying off a conscientious opposition to the improvement we do not determine, but where the improvement is of general public utility or necessity, we are unwilling to say that the mere circumstance that a land-owner of the vicinity signed a petition upon the promise of another to relieve him from the burden of the assessment, required the commissioners to adjudge that a fraud upon the law was intended, and thereupon to reject the petitioner’s name, in determining whether or not a majority of resident land-owners whose lands were reported as benefited, were in favor of the improvement. We are also of the opinion, that in counting the two Moores as one petitioner no prejudice resulted to the plaintiff. While they were shown to be tenants in common with two others, it did not appear that they held their title as heirs of an undivided estate. Hence, they were not shown to belong to the class of tenants in common, who, by the statute, are collectively restricted to one vote. S. & S. 676. Being resident land-owners of the county, and presumably holding their title, not as heirs, they should have been counted as if their ownership were in severalty.

But the counting of the names of Hetrick, Wilson, IIostettler, and Gray, whose names appeared only on the petition of 1871, was wholly unauthorized. That petition had not only been abandoned, but it sought a different object from the one upon which the action of the commissioner was sought. The result is, excluding Sipe, Detrick, Wilson, ITostettler, and Gray, from the count, and including Erantz, Cookston, and Heddings, and counting each of the Moores as a petitioner, instead of counting the two as one, there would be two less than a majority of the resident land-owners, whose lands were reported as benefited, asking for the improvement.

This would leave the commissioners without power to order its construction. Hays v. Jones, supra. Again, the petition avers that the report of the viewers and engineer did not show by a statement of facts, or otherwise, the public necessity of the proposed improvement. Section 4 of the act above referred to (71 Ohio L. 94) required the viewers and engineer to make a report showing the public necessity of such improvement, the damages claimed and by whom, the amount assessed to each claimant, an estimate of the expenses of the improvement, and the lots and lands that would be benefited thereby, and that ought -to be assessed for the expenses of the same.

This report lays the foundation for the further action of the commissioners. Upon its return they are required, if in their opinion public utility requires it, to enter upon their record an order that the improvement be made. Without such report no such order can be made. And wherethe same is silent on the subject of the public convenience or necessity of the proposed improvement, such order is unauthorized.

It was finally alleged that by the procuration and solicitation of the principal petitioners for the improvement, and in order to create an apparent majority of resident land-owners in favor of the same, the viewers and engineer were fraudulently induced to omit from their report lands lying near the improvement, and within the assessing district, and as much benefited thereby as any reported for assessment. This averment, being undenied, entitled the plaintiff to an order setting aside the proceedings of the commissioners, which were founded upon such fraudulent report. It was the duty of the viewers and surveyor to return a description of all lots and lands lying within two miles of the proposed improvement that would, in their judgment, be specially benefited thereby, whether within a ipunicipal corporation or not.

This is the plain requirement of the statute. The report should represent the impartial judgment of the committee.

"Where the requisite number of resident land-owners do not subscribe the petition, the commissioners have no power to order the improvement. And where lands, lying within the assessing district, which in the judgmeut of the viewers and engineer will be specially benefited by the improvement, are purposely omitted from the report for the purpose of showing that an apparent majority of the resident land-owners are in favor of the improvement, when it is known that the actual majority are not, such omission is fatal to the validity of the report, and the court should not hesitate to set the same aside,-together with all proceedings founded thereon.

Such being the distinct character of the allegation in the petition, it alone constituted a sufficient ground for relief.

Judgment reversed, and cause remanded.

Okey, J.

I concur in the judgment of reversal. But it appears that one interested in the road in question agreed with others who would necessarily be taxed for the improvement, that if they would sign the petition he would pay their assessments. The record shows that these persons would not have signed except for that agreement. This contract was made for the purpose of obtaining the majority of resident land-owners in favor of the measure, which the statute requires as a condition precedent to the improvement, and it was necessary to count the names of persons whose signatures were thus obtained, in order to constitute a majority in favor of the work. That is a species of bribery which in my opinion should not be tolerated. The legislature intended by the provision in question to protect minorities, and as far as possible secure the untrammeled judgment of a majority of those to be taxed in favor of the improvement. It is no answer to say that the persons whose signatures were thus obtained may have been in favor of the work, but unable or unwilling to boar tbe expense. The policy of the statute is defeated, and hence the reasons why such persons were unwilling to subscribe are not fairly the subject of averment or proof, but are immaterial. To sanction such an agreement, whatever the motives of the parties may have been, can not fail to be productive of mischief. Whether oral or written, a contract like that could not be enforced, being simply void; but, nevertheless, if the requisite number of petitioners is obtained under an agreement of that sort, such conduct should be none the less fatal to the proceeding.


author: Okey, J.

text:
    The State ex rel. Hibbs v. Board of County Commissioners of Franklin County.
    1. An act will not be declared void for uncertainty, if by resort to tbe recognized aids in the construction of statutes, it is possible to ascertain its meaning.
    2. An act providing for the improvement of a designated county road, is local in its nature, and not in conflict with article 2, section 26, of the constitution, which provides that, “all laws of a general nature shall have a uniform operation throughout the state.”
    3. An act requiring county commissioners to cause a designated road to be improved, and to levy a tax to defray the expense thereof, where the road is open to the public, is not invalid for want of power in the general assembly to pass it.
    4. An act providing “ that the commissioners of Eranldin county be, and they are hereby, authorized and directed to levy ... a special tax not to exceed,” etc., to improve a county road, is a mandatory statute,, and the commissioners may be compelled by mandamus to obey its provisions.
    Mandamus.
    The court having allowed an alternative writ of mandamus, which was issued June 20, 1877, and an answer having been filed, the cause was heard on the pleadings. They show the following facts :
    Green Lawn Cemetery Association was incorporated in 1848, under a statute passed that year. (1 S. & C. 225.) Its grounds, situated near the city of Columbus, are open to the public burial of all citizens of the county, under the rules and regulations of the association, and they contained, at the commencement of this suit, about eight thousand bodies.
    Previous to April 26, 1877, the county commissioners, with the consent of the city council, laid out and established a public highway, known as Green Lawn Avenue road, from High street, in Columbus, by Green Lawn Cemetery, to the Ckillicothe road, which is near to the cemetery.
    If Green Lawn Avenue road should be improved, as hereinafter mentioned, it will accommodate a large number of the citizens of the county passing to and from the cemetery.
    On April 26, 1877, the following act was passed :
    “ Section 1. That the commissioners of Eranklin county be, and they are hereby, authorized and directed to levy, at their June session, a. d. 1877, a special tax not to exceed the amount of the estimate of the engineer as hereinafter provided, for the purpose of building, grading, and graveling or macadamizing the road from South High street, in the city of Columbus, along the Green Lawn Avenue road to its terminus in the old Chillieothe road.
    “Sec. 2. The said commissioners shall cause a survey and estimate of said road to be made by some competent engineer, and the letting for said improvement provided for in section one shall not exceed the amount of such estimate after expenses are paid; and the commissioners in these proceedings shall be governed by the laws now in force, so far as they may be applicable, relating to their duties in regard to free turnpike roads.
    “ Sec. 3. This act shall take effect and be in force from and after its passage.” 74 Ohio L. 472.
    The command of the alternative writ is that the commissioners ascertain the amount and levy the tax, as provided in the act, or show cause why they refuse to do so ; and it is stated that the improvement will cost $5,000.
    The answer of the commissioners contains the following averments :
    “ The board say that said act is so Vague and indefinite in its terms that the board is not able to determine how to act under it, or to see dearly in what their duty lies in regard to the manner in which the tax shall be levied.
    . . . “ This board does not recognize the necessity of said improvement. This improvement consists, in part, in the building, grading, and graveling, or macadamizing of a street within the corporate limits of the city of Columbus. It will not be of general benefit, but will be of local benefit and interest only to those using Green Lawn Cemetery as a burial place, to those citizens who own lands contiguous to or in the vicinity of said road, and to such others as may prefer to use this road to other roads leading in the same general direction.
    “ The board do not deem it just to make such improvement at the expense of the whole county, and do not believe that the legislature intended, by the act set forth in the writ, to compel this board to make said improvement whether the doing so met with the approval of its judgment or not.
    “ The board regards said act of the legislature to be of doubtful constitutionality, if it should be construed to intend that the board shall make said improvement, and shall levy a tax to pay the same upon the whole county.”

      Lorenzo English and Wright § Evans, for the -relator:
    The improvement, if made, would constitute a public use for which the taxing power may be invoked. 9 Ohio St. 540; Sedgwick on Con. of Stat. and Con. L. 446; 1 Ohio St. 77; 21 Ohio St. 43; 8 Ohio St. 333; 20 Ohio St. 496; 9 Ohio St. 540; 51 Penn. St. 445-451; 17 Ohio St. 558; 21 Ohio St. 43-47.
    In answer to the objection of the unconstitutionality of the law, we say that the power to authorize another to do a thing, implies the power on the part of the principal to-do the same thing,.and if the legislature can authorize a hoard of county commissioners to determine the necessity of a local public improvement, and afterward to construct it at their pleasure, it can determine, itself, this necessity, and require it to be done. 103 Mass. 120 ; 38 Miss. 679, 684; The City of Lexington v. McQuillon’s Heirs, 9 Dana, 515, 516; Cheaney v. Hover, 9 B. Monroe, 330; 17 Ohio St. 608, 616.
    Does the legislature possess the power to authorize the imposition of a tax upon the taxable property of a county, for an improvement such as contemplated by this act; or must it be constructed at the expense of adjacent property ? We think it does.
    1. Under article 2, section 1, of the constitution, the legislative power extends to all the objects and purposes which the state government may require, and we must look to the provisions of that instrument to see how far, and to what extent the legislative discretion is qualified or restricted; therefore, when the power of the general assembly to enact any particular law is drawn in question, the proper inquiry is, whether such an exercise of the legislative power is clearly prohibited by the constitution. The grant of power being geueral, the question is as to the existence of a limitation arising from special prohibition. 11 Ohio St. 534; 15 Ohio St. 573; 21 Ohio St. 198.
    2. Such prohibition must either be found in express-terms, or be clearly inferable, by necessary implication, from the language of the instrument, when fairly construed according to its manifest spirit and meaning. 1 Ohio St. 437; 2 Ohio St. 607; 15 Ohio St. 573.
    3. The power of taxation is included in the legislative-power, and is supreme, unless it falls within some of the-limitations upon fits exercise, imposed by the constitution. 11 Ohio St. 534.
    4. Taxation exacts money, or services from individuals,, as and for their respective shares of contribution to any public burden, and the power may be legitimately exer•cised on all the objects to which it is applicable, to the utmost extent to which a government may choose to carry it, except where there is a clear limitation in the constitution upon the power. 4 Wheaton, 428; 1 Ohio St. 138; 11 Ohio St. 534; 15 Ohio St. 592; 21 Ohio St. 43, 47; 4 Pet. 562; 49 Mo. 490, 574; 47 Mo. 150; 43 Mo. 479; Dillon's Mun. Cor., §§ 43, 583, note 3.
    5. And this unlimited power of taxation necessarily involves the right to designate the property upon which it is to be levied. In other words, to apportion the tax territorially. 1 Ohio St. 138 ; 10 Ohio St. 192; 19 Ohio St. 418.
    6. If the purposes for which a tax is authorized are public, then the imposition of the tax is constitutional. 21 Ohio St. 43, 47.
    Taxation for all of these purposes may be general, or special, according as the legislature may determine. It may be imposed upon all the property of a taxing district .according to a uniform rate per centum, or specially, according to benefits upon adjacent property, and it is competent. for the legislature to say what shall constitute a taxing district, territorially, for either purpose. 5 Ohio St. 246 ; 8 Ohio St. 333; 9 Ohio St. 540; 28 Cal. 349, 361; 12 Cal. 83; 47 Miss. 367, 377; 38 Miss. 652 ; 5 Thompson, 321; Howell v. The City of Buffalo, 37 N. Y. 267; 69 Penn. St. 352; 65 Penn. St. 157 ; 58 Penn. St. 320; 1 P. F. Smith, 445 ; 46 N. Y. 401; 4 Harris (S. C.), 92; Sedgwick, 426, 433 ; 9 B. Mon. 330 ; 23 Conn. 189.
    As a further objection to the constitutionality of the act, the respondent claims that, if it be enforced, it will result in improving a street in the city of Columbus. As a fact, this improvement would embrace about five hundred feet, and really constitutes one of the approaches to the iron bridge, but we do not think this circumstance militates against the principle established by the cases. Smedly v. Erwin and others, 51 Penn. St. (1 P. E. Smith), 445, 451; Goff v. The Mayor of Frederick City, 44 Md. (Am. Law Reg., June, 1877, p. 33.)

      Mandamus will lie. See High’s Ex. L. R., § 139; 1 Ohio St. 77; 24 Ohio St. 393 ; 5 Ohio St. 528; 17 Ohio St. 608.

      Joseph H. Outhwaite and Talfourd P. Linn, for respondents :
    The respondents claim that the law as passed is unconstitutional and void, and that they are not bound to act under it, for the following reasons :
    1. The act is so vague and indefinite in its terms that they can not intelligently carry out its provisions.
    2. The general assembly can not constitutionally compel them, without their consent, nor compel the people of Eranklin county, acting through them as their representatives, to make an improvement which is of local use solely.
    3. Under the constitution and laws of Ohio the board of county commissioners are to be the sole judges of the necessity of a merely local improvement.
    4. The improvement in question is such a local improvement, and is not of such a public character as to give the general assembly power over it.
    6. The act violates article 12, § 2, article 1, § 19, and article 2, § 26, of the constitution.
    The rule of construction claimed on behalf of relator, that under such a general grant of legislative power as is contained in article 2, § 1, of the state constitution, other parts of the same instrument must be consulted for limitations to and restrictions - on that power, has received the sanction of judicial decision, and has in some states been accepted in its broadest and most unqualified sense. But from time to time courts have almost unanimously been constrained to hold this rule subject to certain modifications, on the ground that, although not hampered by any express prohibitions, legislative bodies could not be allowed to enact laws violating common rights and justice, and opposed to common reason. 4 Conn. 225 ; 9 Cranch, 43; 3 Doll. 386; 1 Ohio St. 77; 21 Ohio St. 14; 24 Mich. 44; 9 Cranch, 292; 4 Wheat. 694; 22 Iowa, 351; 22 Wis. 660; 10 Barb. 214.

      The privilege of holding acquired property, untrammeled by legislative action, is no more essential to the existence of local municipal corporations, nor is it any more a right inherent in the nature of representative governments, than is the right of those corporations to local self-government, to the unrestrained management of local affairs, and to judge for themselves of the expediency of local improvements, and the levying of local taxes for local purposes. In neither case is legislative control forbidden by the words of the constitution, but in both cases it is repugnant to the spirit of American institutions. 24 Mich. 44; 2 Ohio St. 607.
    That the usurpation by legislatures of such unlimited powers is impolitic and dangerous, is too plain for argument. It has been pronounced by many courts, after the most thorough examination and careful consideration, to be an unauthorized encroachment on what may be termed the unwritten constitutions of the people. They can empower municipal coi'porations to tax themselves for, and to construct, improvements strictly local in their character, but here they must stop. They can not compel such action without the consent of the corporation. 16 Mass. 83; 4 N. H. 572 ; 31 Vt. 237; 9 B. Mon. 338; 5 Sneed, 186; 13 Wis. 37; 29 Wis. 41; 51 Ill. 17; 53 Ill. 302; 55 Ill. 33; 55 Ill. 133; 24 Mich. 44; 28 Mich. 228; 8 Bush, 493; 69 Penn. 352; Cooley’s Const. Lim. (3 ed.), 230, and note.
    This road is an exceptional means of passage, for the sole use and benefit of the citizens of Columbus. People living in other parts of the county can, it is true, use it, but they have no more direct interest in it than they have in any street in the city. Moreover, if built under the law in question, it will be built in an unusual manner, and at an unusual expen.se.
    Those interested in the establishment of this road have-not made known to the county commissioners, as they are authorized under the free turnpike laws of the state, their desire for such improvement. The board of commissioners, as appears by their answer, and as appears also by their official order, have explicitly found that the macadamizing of the road is not a matter of public nor of local necessity. In view of this state of facts, is the general assembly to’ step in, and, at the request of one or two who may be interested in the sale of town lots, command the county to-tax itself for their benefit?
    The principle contended for by relator in this case, if" once established, would violate that guaranty of the constitution that private property shall be held inviolate, and' subservient only to the public welfare.
    If the legislature can compel the road to be macadamized,, they can compel it to be paved with asphaltum, or with granite or marble blocks. If they can compel the county to be taxed for it, they can compel the citizens immediately benefited to be assessed for its construction. Since a part of this road is a street within the city of Columbus, the-right to force the county to pave that street will carry with it the right to force the county to build all the streets and alleys, construct the sewers, and maintain the police force; Permit the legislature to be the sole judges of what shall be a local improvement, and where it shall be made, and' there is no limit to the burden that can be imposed on the-people in the guise of taxation. Property may be confiscated, estates swallowed up, and portions of country improved until they are impoverished.
    The argument so far has proceeded upon the assumption of relator that the legislator did intend, by the law passed,, to compel the board of commissioners to levy the tax on the grand duplicate of the county. But it is a matter of grave doubt whether such is the case, or whether the act-does not intend the tax to be levied as is provided by the-free turnpike laws.
    What the language of “ these proceedings” refers to and implies is vague and ambiguous. To refer it to the survey, estimates, and letting only, would be to give it no force or effect; for such are not the duties of county commissioners,, in regard to free turnpike roads. 78 Ohio L. 96 et seq.

      The other duties of the commissioners in constructing free turnpikes have no apparent connection with the duties prescribed in this case, and under this act.
    It is provided in the state constitution that no tax shall 'be levied, except in pursuance of law. Article 12, § 5. Here we have an act of the legislature which in itself refers "to another law, or other laws, to complete its sense in some essential particulars, and those other laws are found to apply as well to the levy as to any other duties of the commissioners.
   Okey, J.

The action is to compel the commissioners of Eranklin county to levy a tax “ for the purpose of building, grading, and graveling or maeademizing ” a road, commencing in the city of Columbus and intersecting a public road near the city. The road to be improved passes Green Lawn Cemetery, which is open to the burial of the citizens •of the county generally, under the rules of the cemetery .association, and the improved highway will accommodate a large portion of the citizens of the county in passing to and from the cemetery. The tax is provided for by an act passed in 1877, set forth in the statement of the case, but the commissioners decline to make the improvement, on ■several grounds, which we will now consider.

Because the act is “ vague aud indefinite in its terms.” Cases may be found in which statutes have been held void -on such ground; but, as decided in Cochran v. Loring, 17 Ohio, 409, though a law is imperfect in its details, it is not void, unless it is so imperfect as to render it impossible to execute it.” While the act of 1877 is not clear and definite in its provisions, we do not think it is void on that ground. Its meaning may be ascertained from its terms, construed in connection with other statutes. The act contains a mandatory direction to the commissioners to levy a special tax to improve a road. The amount of the tax is to be ascertained from the report of an engineer to be appointed by them. The tax is to be levied on all the taxable property of the county. Though called a special tax, it is only special in the sense that it is for a single specified purpose. True, the act provides that the commissioners “ shall be governed by the laws now in force, so far as they may be applicable, relating to their duties in regard to free turnpike roads;” but that relates to the supervision and control which the commissioners exercise with respect to the construction and repair of such roads, and not to the mode of levying the tax. This is rendered certain by reference to other statutes. By an examination of the various acts then in force relating to turnpike roads which might ■come within the control of the county commissioners (see Rev. Stat., §§ 4753-4875), it will be seen that the mode of raising money for the purpose of constructing turnpike roads which might be free, was not uniform. The construction of such a road might be paid for by a tax levied on the taxable property of the county, or by what is known as the one-mile assessment, or by the two-mile assessment. In such condition of the law there is, of course, nothing in the ■statute under consideration which would support a local assessment, and this leaves no room to doubt that the tax is to be levied, as already stated, on the taxable property •of the county.

It is said that the act violates article 2, section 26 of the constitution, which provides that all laws of a general nature shall have a uniform operation throughout the state.” But this provision does not affect the power of the legislature to pass local laws where the acts are in their nature local. Cricket v. State, 18 Ohio St. 9 ; State v. The Judges, 21 Ohio St. 1; State v. Covington, 29 Ohio St. 102 ; McGill v. The State, 34 Ohio St. 228, 269. The act in question is not inhibited by that provision of the constitution.

The power of the legislature to pass a mandatory stat-. ute, requiring the commissioners to levy the tax and improve the road in question, is denied by the defendant. The only provision which the constitution contains with respect to the county commissioners is the following: “ The commissioners of counties, the trustees of townships, and similar boards, shall have power of local taxation, as maybe prescribed by law.” Art. 10, § 7. Manifestly this is i«o limitation on the power of the general assembly; and the in quiry therefore is as to the extent of such power. That it is only legislative is conceded, but that is undeniably a very broad power and includes, generally, the right to direct, in invitwm, the construction and repair of public highways, and the levy of taxes to defray the necessary expenses thereof. That the power is liable to great abuse is denied by no one, but the responsibility, as well as the power, rests with the legislature. Many cases may be found which go further in support of this principle than we might be willing to go. People v. Flagg, 46 N. Y. 401; Philadelphia v. Field, 58 Penn. St. 320. See Lima v. McBride, 34 Ohio St. 338.

The decisions with respect to the statutes in which there has been an attempt to assess locally for a work of general public utility (Washington Avenue, 69 Penn. St. 352), or where it was sought to compel a city to erect fountains and purchase and embellish parks (Park Commissioners v. Detroit, 28 Mich. 228), and other cases of a kindred character, show that legislative power with respect to taxation is not unlimited. It is not our purpose to enter into an examination as to the extent of those limitations, but to say that this case does not fall within them. Indeed, a careful examination of the cases cited on behalf of the commissioners, will show that none of them are in opposition to the validity of this act.

The fact that the road is in part within the city in no way militates against the right to levy the tax (Wells v. Laughlin, Butman v. Fowler, 17 Ohio, 99, 101); nor are the commissioners exonerated from levying the tax now, on the ground that they failed to perform the duty in June, 1877, as required by the statute. State v. Harris, 17 Ohio St. 608.

We are satisfied that here was a duty specially enjoined by law on the county commissioners, which it was their duty to perform, but which they have failed to perform.

Peremptory writ awarded.


author: Johnson, J.

text:
    Spangler et al v. The City of Cleveland.
    1. The appropriation of land for the opening of a street, by a municipal corporation, through a parcel of land which stands upon the tax duplicate as a single lot or parcel, severs the same into two lots or parcels, for the purposes of assessment, though it remains on the general tax duplicate as an entirety for purposes of taxation.
    2. Where the same is assessed as two lots, and the assessments thus made are certified to the auditor of the county for collection, by order of the council, it is error to add the assessments made on each side of the street together, and charge the same upon the whole lot, as if no severance had been made.
    '3. The making of a street improvement required the construction of a stone and brick culvert, as well as earthwork. Each class of work was let and done separately, by different contractors, the culvert being first completed, accepted, and paid for. In making up the amount of the assessment to pay for both classes of work, it was error to include the cost of repairs of said culvert, made after it was accepted.
    •4. So, it is error to add to the cost of an improvement an estimated percentage to pay for collecting an assessment based thereon.
    5. Where an assessment is per foot front, and is based upon an estimate of the cost, and a certain number of feet frontage, and the cost of the work falls below such estimate, the court, in reducing such assessment to the actual cost, and in fixing the cost per front foot, should not deduct from the frontage actually assessable when the improvement was ordered, any part thereof subsequently appropriated by the municipal corporation for streets.
    Error to tbe District Court of Cuyahoga county.
    The facts of this case, so far as necessary to an understanding of the points reported, will be found in the opinion.

      Mix, Noble & White, for plaintiffs in error.

      Heisley, Weh & Wallace, for defendant in error.
   Johnson, J.

The original action was brought to enjoin the collection of four district assessments against lots 342 and 339, in what was formerly East Cleveland, made by the ■city of Cleveland. They were:

I. For opening Hough avenue.

II. For grading, draining, and improving Hough avenue.

III. For grading and improving East Madison avenue.

IV. For macadamizing, paving, and improving East Madison avenue.

The case was tried in the district court upon the issues joined and evidence, and there was a finding and judgment affirming said several assessments in the main, but modifying them in specified particulars. Exceptions were noted by both parties, and . the plaintiff moved for a new trial.

This motion was overruled, and a bill of exceptions was taken containing all the evidence.

Numerous errors are assigned by plaintiff, some of which go to the validity, and others to the regularity merely, of these assessments.

A cross-petition in error is filed, assigning a single error, to wit, that the district court erred in refusing to allow the-cost of engineering to be included in the assessments.

As to this alleged error, it is sufficient to say that the facts bring it within the ruling in Longworth v. Cincinnati, 34 Ohio St. 101, which holds that where the surveying and engineering is done by the salaried officers of the city, who are paid out of the general fund, the cost of engineering done by them can not be assessed on the property.

The great number of errors specially assigned by the plaintiffs, and the lengthy and thorough arguments on each of them, have necessitated a careful and detailed examination of each.

In view of the great length to which this opinion would’ be extended, if it attempted to cover all of them, and of the fact that some have, by changes of the statutes, ceased to be of public interest, while others are of minor importance at best, we will report only upon those points upon which the judgment of the court below has been modified, first premising that there is nothing in the record, which has been pointed out in the argument, to show that either of said assessments is void, and that all the errors found to. exist are such as fall within the curative provisions of the-statute.

I. As to the alleged error in certifying and placing upon the duplicate assessments against lot 342.

By the opening of Hough avenue, from east to west, through this lot, it was severed into two distinct parcels of unequal size and value — that on the north side being shallow in depth, and much smaller, and with less frontage on each street afterward improved. It stood on the duplicate, for taxation as one lot. After the opening and improvement of this avenue, it so continued on the duplicate, and no application was made, either by the city or by plaintiff,, to have it changed to its actual condition, after the street was opened.

The assessments were made by the city against the two-distinct parcels. Eor instance, the assessment to pay for the land was $308.18 on that part lying north of the avenue, and $1,544.09 on the south side. In this form, it was ordered certified for collection to the auditor. He added both together, making $1,852.27, and assessed the whole on the entire lot, including the part taken for the street. We think this erroneous. Where assessments are made, as in this case, upon separate parcels or lots, either according to frontage, valuation, or benefits, the amount so assessed is alone liable therefor, and the statute has expressly fixed the maximum of such assessments.

By thus consolidating two or more distinct parcels, and the assessments thereon, this principle is violated, and the maximum limit may be evaded.

The assessment made against either parcel could not thus be charged upon the other.

But it is said that both parcels stood as one lot on the duplicate, and that the plaintiffs took no steps to have them-separated.

The severance was the act of the city, by a forcible purchase of a strip of land running through the lot for a street; and it was its duty, for purposes of assessment, to cause the proper severance upon the special tax duplicate,. when it seeks to enforce an assessment against the same, through the taxing power of the state.

So far as either of these assessments have been placed upon the duplicate against the entire lot, it is erroneous, and an injunction must be granted, restraining the sale of the lot, as an entirety, for their payment, or of either lot for the assessment upon the other.

II. In the assessment for the improvement of Hough avenue, there appears an item of $220, “ for repairs of culvert.”

It appears that the work constituting this improvement was let in two distinct parts. The construction of an expensive culvert of stone and brick was let to one bidder, .and was completed by him, and paid for as a distinct contract. The grading, etc., which was completed some months afterward, was by another contractor, and there is estimated in his favor this item of $220 for repairs of culvert. If this work was properly repairs, as the record indicates, it does not constitute a proper charge in making up the cost of the improvement.

III. In these assessments are included an item of one per cent, upon the cost of the improvement to pay for collection.

It is not claimed that this percentage has been or will be paid. It is at least only an estimate, and not an actual expense that has been or will be incurred.

Treasurers’ fees are based on a sliding scale, according to amounts collected or disbursed. Whether fees actually paid, or for which the city would be liable under the statute, could be included, we need not determine.

The statute furnishes other modes of collecting such assessments, and this need not be resorted to; and, if not, there is not necessarily any cost for collection.

The amount should be ascertained and fixed, on the supposition that the owner will pay without litigation or other expense. These items must be omitted from the several assessments.

TV. The assessment for grading and curbing East Madison avenue was by the foot front. The work was done and paid for by bonds in anticipation of an assessment based on au estimate of 14,947 feet front, and cost of $11,-202.93.

The corrected assessment was made by the district court and was based on the actual cost of $8,914.07, and a frontage of 13,449 feet, thus making a reduction in the aggregate amount to be collected of $2,288.86. The frontage was also reduced 1,498 feet. Thus the reduction per foot front was not correspondingly reduced.

This difference in frontage arose, partly from the fact that between the time of the estimate on which the original assessment was based, and the time of the correction, after [the work was completed, several hundred feet had been appropriated for streets, and partly from new and corrected measurements of the lots fronting on the improvement.

Mr. Baker, who made the computations, is unable to say how much of this difference arises from appropriations for streets, as he did not measure them, but says it was' several hundred feet.

The lot-owners were liable according to the feet front assessable wlien the work was ordered, and the assessment made, and not according to the frontage as afterward reduced by appropriation.

After that, the city converted assessable into non-assessable property. The pro rata share of what remains could not be thus increased beyond the amount actually assessable, when it was assessed. But this was exactly what was done. The divisor, by which the cost per foot front was ascertained, might be reduced by corrected measurements of assessable property. This was done; but, in addition to this, it was reduced by deducting, also, several hundred feet of assessable property converted into non-assessable, by being afterward converted into public streets.

The pro rata share of each should have been ascertained by taking the actual number of feet front as it was when the assessment was made, making no deduction for diminished frontage arising afterward by appropriation for intersecting streets.

The judgment will be reversed and the cause be remanded to the district court with instructions to proceed according to the foregoing conclusions, and to enjoin the collection of all in excess of the corrected assessments thus ascertained.

Boynton, J., did not participate in the case involving the improvement of Madison avenue.


author: Boynton, J.

text:
    Jones, Auditor v. Davis.
    1. Where a hoard of equalization adds to the return of a tax-payer for taxation an item, of property not taxable, and directs the county auditor to carry the amount so added on the duplicate, and assess against it the rate of taxation fixed for state, county, and city purposes, an injunction will lie to enjoin the auditor from so doing.
    2. The personal property which a corporation, organized and doing business-under the laws of this state, was required to list for taxation by section 11 of the act of May 11, 1878 (75 Ohio D. 436), embraced the capital stock of the corporation, and such being the case, an owner of shares of the capital stock of such company was not required to list his shares for taxation.
    Error to the Court of Common Pleas of Lucas county.
    The defendant, Davis, was the owner of 200 shares of $100 each of the capital stock of the Toledo and Wabash Elevator Company, a corporation organized under the laws of Obio, for the purpose of elevating and storing grain, and carrying on its business at Toledo. All its capital stock was invested in such real and personal estate as was necessary for the daily conduct and operation of its business, and the same was duly listed by tbe company for taxation, in 1879, together with its moneys and credits, according to tbe requirements of tbe statute. In April of that year, the hoard of equalization of the city of Toledo assumed to add to the return of Davis for that year the sum of 112,000, the alleged value of the 200 shares of stock, and directed the auditor of Lucas county to place the same on the duplicate, and to levy the proper proportion of taxes thereon for State, county, and city purposes.
    The common pleas enjoined the auditor from carrying out said instructions, and this, its action, is assigned for error.

      Joshua B. Seney, for plaintiff in error:
    Injunction is not the remedy. 75 Ohio L. 721, § 2; 11 Wall. 108 ; 1 Ohio St. 591.
    The remedy is at law. 75 Ohio L. 804, § 2 ; 20 Ohio, 173; Cooley on Taxation, 291.
    The share-holders should he taxed. 75 Ohio L. 446; 10 Ohio, 97.
    As to double taxation, see 16 Ohio St. 623; 36 Me. 259; Cooley on Taxation, 163; Lackawana Iron Company v. Lazerne County, 42 Penn. St. 424, 431; Carbon Iron Company v. Carbon County, 39 Penn. St. 251; West Chester Gas Company v. Chester County, 30 Penn. St. 332; Philadelphia Savings Fund, v. Yard, 9 Penn. St. 361; Kirby v. Shaw, 19 Penn. St. 258; Whitsell v. Northampton County, 49 Penn. St. 526, 529; Pittsburgh R. R. Company v. Commonwealth, 66 Penn. St. 77; Tremont Bank v. Boston, 1 Cush. 142; State v. Petway, 2 Jones’ Eq. 396; State v. Thomas, 26 N. J. 181 ; Lycoming County v. Gamble, 47 Penn. St. 106; Union Bank v. State, 9 Yerg. 490 ; Oswego Starch Factory v. Dollaway, 21 N. Y. 449 ; People v. Bradley, 39 Ill. 130, 141; Conwell v. Connersville, 15 Ind. 150 ; Von Allen v. Assessors, 3 Wall. 584; State Tax on Foreign held, Bonds, 15 Wall. 300, 323; Cumberland Marine Railway v. Portland, 37 Me. 444.

      William Baker, for defendant in error :
    The statute does not contemplate double taxation. See Rev. Stat., §§ 2730, 2746.

      In common parlance and .in our statutes, the term “ capital stock ” means the money paid in and used in the business •of the corporation. It has no reference to a division into shares.
    If the capital stock is taxed in the name of the company, then the shares shall not be taxed in the name of the holder.
    As to what is capital stock, see 95 U. S. 686; 2 Wall. 208; 2 Black. 620; 3 Wall. 573; 21 Ohio St. 555.
    Injunction is the proper remedy. 5 Ohio St. 364, 589.
   Boynton, J.

Section 13 of the act of May 11,1878, relating to the listing and. taxation of property (75 Ohio L. 436), now section 2746 of the Revised Statutes, reads as follows : “ Personal property of every description, moneys and •credits, investments in bonds, stocks, joint stock companies, •or otherwise, shall be listed in the name of the person who was the owner thereof on the day preceding the second Monday of April in each year; but no person shall be required to list for taxation any share or shares of the capital stock of any company, the capital stock of which is taxed in the name of such company.”

Section 11 of the same act required the president, secretary, and principal accounting officer of every joint stock company, excepting banking, or other corporations whose taxation is specifically provided for, for whatever purpose created, and whether incorporated by any law of the state" or not, to list for taxation all its personal property, which, by the terms of the statute, was made to include all such real estate as was necessary to the daily operations of the company, and all its, moneys and credits within the state, at their actual value in money.

The Toledo and Wabash Elevator Company is incorporated under the laws of Ohio, and whether or not the property which it was thus required to list for taxation embraced its capital stock within the meaning of the statute, is the principal question arising upon the record.

That it did embrace it we entertain little doubt. The capital stock of a corporation consists of the money and property subscribed and paid in for tbe purpose of carrying on its business operations. It constitutes a corporate fund, belonging to tbe corporate body. The ownership of a share of stock involves tbe right to participate in the dividends-declared from the profits-of the business, and upon the dissolution of the corporation to a proportionate share of the fund remaining after payment of the corporate debts. This interest or right, however, does not enable the shareholder to withdraw any portion of the capital stock of the corporation from its control, nor to exercise any authority over it, further than to participate, to the extent of his stock, in the election of a board of managers, charged with theconduet of the business for -which the corporation was-created.

The fund subscribed and paid in to carry out the purposes of the organization remains the capital stock of the-company as fully, within the meaning of the statute, after it has been converted into property necessary for its business operations, and for which it was subscribed, as before. Bank Tax case, 2 Wall. 208; Farrington v. Tennessee, 95 U. S. 686. Eor the purposes of taxation, the capital stock is represented by whatever it is invested in. Personal property, by the express wording of the statute, is made-to include the capital stock of a corporation; and the-provision above referred to requires all corporations -doing business in this state, except banking and others whose taxation is specifically provided for, to list all their personal property, including in the return thereof all such real estate as is necessary to the daily operation of their business, together with their moneys and credits of every description within the state. That the legislature-intended, by this description of property, to embrace the capital stock of the company is too obvious to be misunderstood. No other meaning can be drawn from the language employed, and no other construction is better calculated to do justice.

As was said by Mr. Justice Nelson, in the Bank Tax' case, above cited, referring to the capital stock of a national bank: “ The capital is not an idle, fictitious, arbitrary sum of money, set down in the articles of association, but, in theory and practical operation of the system, is composed of substantial property, which gives value and solidity to the stock of the institution.”

It is, however, contended by counsel for the plaintiff' in error, that, inasmuch as the statute requires the shares of •stock in incorporated banks to be taxed in the name of the bank, and does not require the shares of stock in any other •company to be taxed in the name of the company, it conclusively follows that shares of stock in incorporated companies, not engaged in banking, are to be taxed in the name •of the owner.

Whether or not bank shares are to be taxed in the name of the banks, I shall not stop to consider, as it is quite obvious, that, as respects corporations of the character of the elevator company, the name in which the shares of stock arc to be listed and taxed is definitely ascertained by the •statute.

Except in cases where the capital stock is taxed in the name of the corporation, the shares are to be listed in the name of the person owning the same on the day preceding the second Monday of April in each year; but when the •capital stock is required to be returned for taxation in the name of the company, the owner of the shares is expressly relieved from the duty to list them.

To give effect to the claim of the plaintiff', the court would be required to hold that the owner of shares of stock is required by the statute to list them for taxation in all •cases where the corporation is not required to list its capital stock eo nomine. The result would be that the owner would be required to list his shares in all cases, as the statute nowhere requires the corporation to list its capital stock, except as'it is embraced within the description of the property it is required to return, and which description makes no mention of capital stock by name. The construction contended for would result in imputing to the legislature the folly of undertaking to create an exception which could have no possible operation. But such, we think, is not the effect of the statute. The property which the elevator company was required tto return for taxation very dearly embraced its capital stock, and the action of the board of equalization, in adding $12,000 to the return of the defendant in error, was, therefore, wholly unauthorized.

The objection taken that a court of equity will not enjoin the levying of a tax on property illegally added to the return of a tax-payer is not well founded.

The statute (75 Ohio L. 778) provides that the courts of common pleas and superior courts shall have jurisdiction to enjoin the illegal levy of taxes and assessments, or the collection of either. The addition of an item of property to the return of the tax-payer, by a board of equalization, with a direction to the auditor to carry the same upon the duplicate, and to assess against it the fixed rate for state, county, and other purposes, does not of itself constitute the levy. Nor does the mere ascertainment of the rate of assessment by those whose duty it is to determine the rate to be levied. The process is not complete until the valuation of the property, with the sum to be charged against it, is carried upon the duplicate. The injunction in the present case preceded this action of the auditor, and wap, therefore, properly allowed.

Judgment affirmed.


author: By the Court.

text:
    Cincinnati, Sandusky and Cleveland R. Co. v. Belt.
    1. The rule prescribed in the Bevised Statutes (§ 79), as to the effect of the repeal of an act, applies to the statutes mentioned in and repealed by the Bevised Statutes, $ 7437.
    2. Where the right to move for the dismissal of a case for non-compliance with the provision as to printing, was complete under the act of 1878 (75 Ohio L. 804, § 5), such right was not affected by the repeal of that act by the Bevised Statutes. .
    Error to the District Court of Eranklin county.

      Motion to dismiss the proceeding, on the ground that the plaintiff in error had failed to comply with the statutory provision in relation to printing the record.
    The petition in error was filed June 24, 1879; but the record not having been printed, the defendant in' error, on January 29, 1880, filed a motion to dismiss the petition in error for that cause.
    The plaintiff in error claims that the case is controlled by the Revised Statutes, § 6711, which did not go into effect until January 1, 1880; and hence, that the plaintiff in error might file the printed copies, or deposit with the clerk money to pay for the printing, at any time within sixty days from January 1, 1880.

      J. L. Belt and B. Woodbury, in support of the motion.

      L. J. Critchfield, contra.
   By the Court.

By the revised code of civil procedure, which took effect September 1, 1878 (75 Ohio L. 804, § 5), it is provided, in relation to printing records of cases in the Supreme Court, that the plaintiff in error “ may have the printing done, or deposit with the clerk money sufficient therefor; and if he fail, for sixty days after filing the petition, to file such printed copies, or make such deposit, the petition shall he dismissed, unless the court, on good cause shown, extend the time, or dispense with such printing.”’ The provision was incorporated into the Revised Statutes (§ 6711) in the same words.

The act of 1866 (S. & S. 1) provided, among other things, that whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal.” That act was repealed by the Revised Statutes, ■which contain the following provision : “ Whenever a statute is repealed or amended, such repeal or amendment shall in no-manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates t.o the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed.” § 79. The Revised Statutes contain no other general provision saving pending actions, prosecutions, or proceedings.

The rule undoubtedly is, that where a statute is repealed without any saving as to pending suits, all right to maintain them, whether they be civil or criminal, is at an end. Sedgwick on Con. and Stat. Con. (2d ed.) 112; Calkins v. The State, 14 Ohio St. 222. In Mitchell v. Eyster, 7 Ohio (pt. 1), 257, the judge delivering the opinion remarked, that the rule did not apply to civil cases. But the true ground of the decision was that the legislature had re-enacted, without material change, the act on which the attachment was founded, and a careful examination of the statutes led to the conclusion that the legislature intended to save pending suits. Debolt v. Trust Co., 1 Ohio St. 563, 567 ; 1 Curwen, Int. 10.

In every case the inquiry is as to the intention of the law making power ; and that the legislature intended the rule prescribed in § 79 of the Revised Statutes should be applied to the statutes mentioned in and repealed by §7437 of the revision, and hence that the intention was to save matters of every sort pending when the Revised. Statutes, took effect, we entertain no doubt. They may be prosecuted in the same manner as if the revision had not been adopted. Any other construction would lead to mischievous consequences. All suits pending on January 1, 1880., would be terminated, and no one could be prosecuted for a crime committed previous to that time. A construction leading to such results is, in view of the statutory provisions referred to, wholly inadmissible. An examination of decisions in which statutory provisions similar to § 79 have been construed lends support to our conclusion in this case. Com. v. Desmond, 123 Mass. 407; U. S. v. Barr, 4 Saw. 254; Lakeman v. Moore, 32 N. H. 410; Rogers v. Pacific Railroad, 35 Mo. 153 ; Richardson v. The State, 3 Col. 122.

Motion sustainedi.


text:
    Inskeep v. The State.
    Motion for leave to file a petition in error to the Court of Common Pleas of Union county.

      T. E. Powell and P. B. Cole, for plaintiff in error.

      George W. Emerson, Prosecuting Attorney, and George K. Nash, Attorney-General, for the state.
   By the Court.

Where a verdict is rendered under the act of 1877 (74 Ohio L. 339, § 1; Rev. Stats., § 7240), finding a prisoner to be sane, error will not lie to review the proceedings previous to the prisoner’s conviction of the crime charged.

Qumre, whether alleged errors in such proceedings can be reviewed on error even after conviction.

Motion overruled.


text:
    James Rankin et al. v. Henry Sanderson.
    A bill of exceptions, authorized by the act of April 12, 1858, “to relieve district courts” (S. & 0.1155), must be sealed as well as signed.
    Error to the Court of Common Pleas of Fayette county. Reserved in the district court.

      Harrison, Olds & Marsh, for plaintiff’ in error.

      Gardner & Creamer, for defendant in error.
   By the Court.

A bill of exceptions setting out all the testimony taken under the act “to relieve district courts,” etc., passed April 12, 1858 (S. & C. 1155), on the overruling of a motion for a new trial, on the ground that the judgment was against the evidence, must be signed and sealed. The oniy authority for taking a bill of exceptions in such case, so that the question whether the judgment was against the evidence, might be reviewed by petition in error, was found in that statute w'hile in force, and by its terms the bill of exceptions must be signed and sealed. The necessity of the seal in such case is not dispensed with by sec. 294 of the code of 1853 (S. & C. 1029), which does not require a seal to bills, of exception therein authorized, as no such bill as the one herein above described was authorized by this section.

This question being thus resolved the plaintiffs in error do not desire further to prosecute this petition in error. It is therefore ordered that this cause be dismissed.