author: Burkkt, J.

text:
    Ohio Farmers' Insurance Co. v. Waters et al.

      Insurance policy prohibits sale or transfer of insured property— Assured assigns property to assignee for benefit of creditors —Insurance invalidated — That assignor retains possession-does not prevent — Property mortgaged — Claim by assured of homestead rights out of insurance money.

    1. Where an insurance policy has a condition to the effect that a sale or transfer of the property shall render the policy void, and the assured makes' a deed of assignment whereby he sells, grants, conveys, and transfers the property to an assignee for the benefit of creditors, such transfer will avoid the policy.
    2. The fact that the assignor retains possession of the property at sufferance, will not have the effect to prevent the policy from becoming void.

      3. Where all homestead and exemption rights are reserved in such deed, and there is a mortgage on the premises as against which no exemption can be allowed, and the assured asks an allowance in lieu of a homestead out of the insurance money, such claim is not an interest in lands, but a claim for money. r

    (Decided October 22, 1901.)
    • Error to the Circuit Court of Brown county.
    The Ohio Farmers’ Insurance Company issued its policy of insurance to G. A. Boebm, insuring bis farmhouse in the sum of two thousand dollars from August, 1892, to August, 1897. A building and loan company held a mortgage on the premises upon which the farmhouse stood for over |2,200.00, the loss, if any, payable to said company as its mortgage interest might appear, and the policy was delivered to and held b} that company.
    On the 8th day of March, 1897, said G. A. Boehm, by his deed duly executed, acknowledged and attested, assigned the same premises, along with other property, "to one Loudon for the benefit of his creditors, and Mr. Loudon accepted the trust and proceeded to execute the same according to law. In September, 1897, Mr. Loudon died, and John Q. Waters was appointed trustee of the assigned property.
    On the 27th day of April, 1897, after said assignment, the house was destroyed by fire, said Boehmhaving resided therein up to that time. After the assignment and while the policy was in the possession of the building and loan company, Mr. Boehm made an unsuccessful attempt to have the policy endorsed to said Loudon as his assignee.
    After said John Q. Waters had been duly appointed and qualified as trustee, he filed his petition in the court of common pleas of Brown county, in due and ample form, against the insurance company for the recovery of the amount of the policy with interest, and made a copy of the policy, and a copy of the deed of assignment, parts of his petition. The policy had the following condition: “If the realty on which the insured building is situate, or any part thereof, be sold or transferred * * * then and in every such ease this policy shall be void.” The deed of assignment makes “known by these presents” that G. A. Boehm upon sufficient consideration “has and does hereby sell, grant, convey, transfer, set over and assign nnto the said D. W. C. Loudon, his successors, heirs and assigns, as trustee in trust for the benefit of all his creditors,” the realty upon which the insured building was then situate.
    G. A. Boehm was made a- party defendant, and filed his answer and cross-petition, and therein admitted the facts stated and allegations in the petition to be true, and claimed five hundred dollars in lieu of a homestead, out of the money to be collected on the policy of insurance.
    The insurance company filed general demurrers to the petition and cross-petition and to the amended petition and amended cross-petition. The court of common pleas sustained the demurrers, and there being no desire to further plead, rendered final judgment in favor of the insurance company. The circuit court on petition in error affirmed the judgment against the trustee, and reversed the judgment against Mr. Boehm, and remanded the case as to him for further proceedings, to which the insurance company excepted. After the case got back into the court of common pleas there were various pleadings, motions and demurrers filed, and judgment was finally rendered against the insurance company for the full amount of the policy with interest, and that judgment was affirmed by the circuit court, and thereupon the insurance company came here to reverse the judgment and proceedings below.
    Lee Elliott and Rufus L. Fite, for plaintiff in error, cited the following authorities:

      Raymond v. Railway Co., 57 Ohio St., 271; Durbin v. Fisk, 16 Ohio St., 533; Commissioners v. Andrews, 18 Ohio St., 49; Shields v. Barrow, 58 U. S. (17 How.) 130; 1 Enc. Pl. & Pr., 472; Shinners v. Brill, 38 Wis., 648; Barnes v. Gibbs, 31 N. J. L., 317; Flanders v. Cobb, 51 Am. St. Rep., 410, Tiffany v. Bowerman, 2 Hun., 643; Bernard v. Tuplitz, 106 Mass., 162; Joyce on Ins., 2288; May on Ins., Sec. 276a; Ostrander on Ins., Sec. 211; Freydenhall v. Baldwin, 103 Ill., 328; May on Ins., 264; Orr v. Insurance Co., 25 Ins. L. J., 624; Perry v. Insurance Co., 4 Ins. Law J., 673; Guenzburger v. Insurance Co., 4 Dec. 220 (3 N. P., 140) ; May on Insurance, Sec. 74.

      White & Campbell and John Q. Waters, for defendants in error cited the following authorities:
    1 Bate’s Pl., 42; Kincaid’s Pl., 127; Bradford v. Andrews, 20 Ohio St., 208; Sec. 5012, Revised Statutes; Anderson v. Sharp, 44 Ohio St., 260; Morrison v. Insurance Co., 59 Am. Dec., 299; Insurance Co. v. Lawrence, 81 Am. Dec., 521; Blackwell v. Insurance Co., 48 Ohio St., 533; Guenzburger v. Insurance Co., 4 Dec., 220; 3 N. P., 140; May on Insurance, Sec. 264; Williams v. Insurance Co., 39 Am. St. Rep., 906; Insurance Co. v. Sampson, 38 Ohio St., 672; Trumbull v. Insurance Co., 12 Ohio, 305; 5 Pick., 76; Commonwealth v. Judd, 2 Mass., 330.
   Burkkt, J.

If the transfer of the lands and house to Loudon for the benefit of the creditors of Boehm was in violation of the terms and conditions of the policy, the amended petition stated no cause of action in favor of the trustee, and the amended cross-petition stated no cause of action or ground for relief in favor of Mr.’ Boehm; because the policy by that transfer became void, and of no binding effect as against the company, and in that event the demurrers to the amended petition and amended cross-petition were properly sustained, and judgment was properly rendered in favor of the insurance company, and it was error for the circuit court to reverse the judgment against Boehm and remand the cause for further proceedings. And if this be so, then all the subsequent proceedings were erroneous, and should be reversed, and the first judgment in favor of the company should be affirmed. So that the one question of controlling importance is, whether the transfer by the deed of assignment for the benefit of creditors, avoided the policy. As the policy and deed of assignment are made part of the petition, and are thereby brought into the record, the question is fairly and fully raised by the demurrers. The wolds of the policy are, “If the realty * * * or any part thereof, shall be sold or transferred,” the policy shall be void. The words of the deed of assignment are, “has and does hereby sell, grant, convey, transfer, set over and assign.” If there was not a sale out and out for value, there certainly was a transfer; and it was provided in the policy, which is the contract between the parties, that a transfer should render the policy void; and a transfer being conceded, it must follow that the policy is void, and that the petition, the amended petition, the cross-petition and amended cross-petition state no cause of action. Freydendall v. Baldwin, 103 Ill., 328; Perry v. Lorillard Insurance Co., 6 Lansing’s Reports N. Y., 201; 16 Commission of Appeals, N. Y., 214; 4 Ins. Law Journal, 673; Joyce on Insurance, 2288; May on Insurance, Sec. 276a; Guenzburger v. Insurance Co., 3 N. P., 140.

Defendants in error claim that as Mr. Boehm was in possession of the house up to the time of the fire, that there was no complete transfer, and cite May on Insurance, Section 264; but his was not a possession of right, but at sufferance. The deed of assignment conveyed the full title, and that title carried with it the right of possession. Jones v. Timmons, 21 Ohio St., 596. There can be no right of possession as against a deed conveying the whole title without reservation, but there may be possession at sufferance after the making and delivery of such a deed.

The citation from May is as follows: “And of course, a voluntary assignment for the benefit of creditors is equivalently a transfer, unless possession be retained by the assignor.” The authority cited by May for the exception in favor of the assignor where he retains possession is Phoenix Insurance Co. v. Lawrence, 4 Met. (Ky.), 9. In that case there was a special. assignment of a stock of goods by deed by a debtor to one of his creditors, to pay the debts owned to such creditor, and to pay certain debts to other named creditors. There was a question as to whether the deed had been delivered and accepted, and it was conceded that the creditors had not receipted the debts. The court held that under such circumstances the debtor had still an insurable interest in the goods, but also held that if the title to the goods passed under the deed, that constructive possession passed with the title. That case is, therefore) not an authority as against a general assignment for' the benefit of creditors in this state. In the case at bar the assignee accepted the trust, and proceeded to execute it according to law,‘and the full title passed to him under the deed of assignment, and that carried with it the right of possession, and the possession of the tenant at sufferance was the possession of the holder of the legal title.

It is also- urged by defendants in error, that as Mi*. Boehm reserved all homestead and exemption rights under-the--laws of Ohio, he did not part with all his rights in the premises, and still retained an insurable interest. But the petition shows that this property was mortgaged to the building and loan company at the time the assignment was made, for over $2,200.00, only part of which was afterward paid by a sale of the lands, which mortgage would prevail over all homestead and exemption rights, and all there was left to him was the possible right to receive out of the proceeds of the sale, a sum of money not exceeding five hundred dollars. This was a claim for money, and not a title in real estate. “One may be interested in the avails of property alienated, and yet have no right to the property itself.” May on Insurance, Sec. 264. The company did not place a policy of two thousand dollars upon a contingent claim for money which could not exceed five hundred dollars. The company placed the policy upon the building as a whole, and it would take the whole to keep the policy in force. The transfer of any part would avoid the policy. To compel the company to pay the policy because of the reservation of a possible claim for five hundred dollars, would be to make a new contract, a contract which the company evidently would not have made.

The judgment of the circuit court reversing the judgment in favor of the. insurance company and against G. A. Boehm is reversed, and the judgment of the common pleas court is affirmed, and all the judgments and proceedings had in the cause after the first judgments in favor of the insurance company, are reversed and set aside and held for nought.

Judgments reversed, and, common pleas affirmed.

Minshall, O. J., Speae, Davis and Shauck, JJ., concurred.

Williams, J., dissented.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Heffern v. Hack.

      Tax title — Section 2910, Revised Statutes- — Action by owner to recover from possessor under void tax deed — Not required tv refund or tender taxes paid- — Possessor tmder void deed merely a lienholder — If rents exceed taxes paid, possessor is liable to owner for balance.

    1. The owner of land, in an action to recover it from one in possession under a void tax deed, is not required by Section 2910 of the Revised Statutes, before he can have judgment rendered in his favor, to refund or tender the taxes paid by the defendant. Such payment or tender may be made after judgment, but must be made before process is issued on the judgment to turn the defendant out of possession.
    2. The payment or tender of the taxes is not a prerequisite to the defendant’s liability for the rents and profits. The void deed creates no title, and his possession is merely that of a lienholder. If the rents exceed the taxes his lien is satisfied, and judgment may be rendered against him for the balance. But when the balance is in his favor the judgment for possession of the land cannot be enforced until the amount is paid or tendered.
    (Decided October 22, 1901.)
    Error to the Circuit Court of Delaware county.
    Martin M. Heffern commenced his action, in the Delaware common pleas, against George Hack, to recover certain real property situated in that county, and the rents and profits received by the defendant while he held possession. The petition contains the necessary and usual averments in real actions of that character. The answer denies those averments, and alleges title acquired by the defendant “by virtue of a forfeited land deed from the auditor of Delaware county,” and payment of taxes to a certain amount, by the defendant, since he obtained his deed. By reply the title asserted by the defendant is controverted, and also the payment of taxes by him in the amount claimed. The reply also avers that the tax sale was irregular and tlie auditor’s deed void, and that the only claim of the defendant on the property was a lien for the taxes which he paid at the tax sale, and the annual taxes since paid, with interest, the total amount of which is less than the rents and profits received by him from the premises.
    Upon these pleadings the cause was tried to the court (a jury having been waived) at its April term, 1899. The court found the issues for the plaintiff, that he had the legal estate in the property, was entitled to the immediate possession of the same, and that the defendant unlawfully kept him out of possession. The court further found that the rents and profits received by the defendant from the premises while he so held possession, exceeded the total amount due him for taxes, and held that these cross-demands should! be set off, one against the other; and that, on a full statement of the account between the parties, there was a balance due the plaintiff. Judgment was accordingly rendered in favor of the plaintiff for the possession of the premises, and for the balance so found due him, with costs.
    The defendant filed a motion for a new trial, but took no bill of exceptions; and on that record prosecuted error to the circuit court, where the judgment of the common pleas was reversed, and the cause remanded. The case has been brought here to obtain the reversal of the circuit court, and the affirmance of the common pleas.

      F. M. Marriott, for plaintiff in error.

      George Goyner, for defendant in error.
   Williams, J.

The findings and judgment of the common pleas court established the plaintiff’s title to the land in controversy, and the invalidity of the tax sale and auditor’s deed under which the defendant claimed. They also established that, upon an accurate statement of an account of the rents and profits received by the defendant from the property during his occupancy under the tax deed, and of the total amount of taxes to which he was entitled, with interest to the time of the judgment, there was a balance due the plaintiff, if the one may be lawfully set off against the other. There was no record before the circuit court on which these findings could be reviewed. This view appears to have been accepted by that court, and, its judgment of reversal is placed solely on the grounds (1), that the plaintiff was not entitled, to judgment for possession, because he had not paid the defendant the taxes which had been previously paid by him, with interest, and (2), that the defendant did not become chargeable with the rents and profits received by him from the property during his occupancy, until payment or tender of the taxes so paid by him, with interest; and, treating the record as showing such payment or tender had not been made by the plaintiff, the defendant was not liable to account in the action, for the rents and profits.

These conclusions, it is claimed are sustained by section 2910 of the Revised Statutes, which reads as follows: “The purchaser of any such lands, his heirs, or assigns, shall, from the day of such purchase, be taken in all courts as the assignee of the state of Ohio; and the amount of taxes and penalties charged on the said land at the time it was sold, together with all legal taxes afterward paid thereon by such purchaser, his heirs, or assigns, shall operate as a lien on said lands, and may be enforced as any other lien. In all cases where any claimant of any lands heretofore sold, or which may hereafter be sold for the non-payment of taxes, under any law of this state, his heirs or assigns shall recover, by action or otherwise, the land so sold as aforesaid for taxes, such claimant, his heirs, or assigns, shall be liable to refund to the purchaser, his heirs or assigns, the amount of taxes and penalties due to the state on the land when sold, together with all other taxes paid thereon by such purchaser, his heirs or assigns, up to the time of recovery, with interest; to be recovered, by action or counterclaim or otherwise, as the case may require; and the same shall be required to be paid to the person or persons entitled thereto, before such person or persons shall be evicted or turned out of possession by any claimant recovering, by action, the land so sold for taxes.”

The construction so claimed for this statute, which, in effect, makes the payment or tender of the amount of the taxes that have been paid by one in possession under a void tax deed, a condition precedent to the right of the owner to maintain his action for the premises and compel an account for the rents and profits while he_ is kept out of possession, appears to be at variance with its language. The section provides, as will be noticed from its reading, that “in all cases where” the owner of land which has been “sold for the non-payment of taxes,” “shall recover” it “by action or otherwise” he “shall be liable to refund to the purchaser the amount of taxes and penalty due to the state on the land when sold, together with all taxes paid thereon by such purchaser up to the time” the plaintiff recovers his judgment, “with interest.” There is nothing in this provision which requires the plaintiff to refund the taxes paid by the purchaser, before he can have his judgment for the land; on the contrary, it authorizes the owner to recover the land by action, which can only take place when judgment is rendered in his favor, and then, in case he shall so recover, a liability is imposed upon him to refund to the purchaser the taxes, etc. This liability may be discharged after the rendition of the judgment, in which the amount of the liability may be definitely ascertained and determined. The subsequent clause of the section provides that these taxes, etc. may be “recovered by action, or counterclaim, or otherwise as the case may require, and shall be required to be paid to the person entitled thereto,” before he "shall be evicted or turned out' of possession” by the owner who recovers the land “by action.” There is no requirement here that the taxes, etc. shall be paid before the recovery of judgment by the owner, but only that they shall be paid by the owner who recovers judgment for the land; which implies that they may be paid after judgment but before actual eviction. The whole section contemplates that the action of ejectment may proceed to final judgment, and that the holder of the tax deed is sufficiently protected by suspending process on the judgment to turn him out of possession until he is reimbursed. Nor, do we find any provision in the statute which denies to the owner who recovers his land from one in possession under a void tax deed, the right to an account for the rents and profits unless he shall first refund to the latter the amount due him for taxes, etc.

The statute nowhere imparts to the void tax deed the effect of securing to its holder the rents and profits of the land, in addition to the repayment of all taxes paid by him, with interest. It specifically defines the rights of the purchaser at the tax sale, and beyond that they cannot be extended. The provision is, that lie shall be taken in all courts as the assignee of the state of Ohio, and the amount of taxes and penalties charged on the land at the time it was sold, together with all legal taxes afterward paid thereon by such purchaser, shall operate as a, lien on said lands, and •may he enforced as any other lien. It cannot be denied that the claim of the state is limited to the amount of the taxes and penalties due on the land at the time of the sale. Their payment would fully discharge the obligation of the owner, leaving in him the right to collect and receive all rents and profits of the land, for his own use and benefit. The purchaser at the tax sale, who, according to the terms of the statute, simply becomes the assignee of the state, occupies no better or different situation. He acquires the lien of the state and may enforce it as any other lien. The auditor’s deed was ineffectual to create title in the defendant, and he was in possession merely as a lienholder. Like other lienholders in possession, he was chargeable in the adjustment of his lien, not only as between him and the owner, but also as between him and other lienholders, with the rents and profits received from the land; and he is entitled to satisfaction of his lien but once. Having received ■such satisfaction from the rents and profits, he had no claim upon the owner for further payment. Anderson v. Lanterman, 27 Ohio St., 104; Johnson v. Stewart, 29 Ohio St., 498. The proper proceeding in such cases is that pursued in the common pleas, where the defendant set up his claim for taxes, by answer in the nature of a counterclaim, and an account was taken of the amount, and of the rents and profits. The party in whose favor there is a balance upon such accounting, is entitled to judgment for the same; and, if that balance is found in favor of the defendant the judgment for possession of the land cannot be enforced until such balance has been paid or tendered. But when the balance is against him his lien has already been discharged, and he is not entitled to be paid again, nor to withhold possession.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Minshall, C. J., Burket, Spear, Davis and Shauck, JJ., concur.


author: Minshall, C. J.

text:
    In the Matter of George Hafer, Ex Parte.

      Witness hy deposition, cannot he committed for contempt — In refusing to sign deposition containing-inaccuracies, when.

    A witness whose deposition has been taken before an officer, cannot be committed for contempt in refusing to sign it, where he claims that it is inaccurate, but is willing to sign it when the errors pointed out by him have been corrected; nor, in such case, can his deposition be retaken on a new subpoena, there being no claim of an omission under the former subpoena, other than the signature of the witness.
    (Decided October 22, 1901.)
    Error to the Circuit Court of Hamilton county.

      Harmon, Oolston, Goldsmith & Hoadley, for plaintiff in error.

      Sidney G. Strieker, for David S. Gray and Wm. W. Franklin, administrators of the estate of Benjamin S. Brown, deceased.
   Minshall, C. J.

The administrators of Benjamin S. Brown, in an action against George Hafer, caused him to be subpoenaed by a notary to give his deposition. On the advice of his counsel, he refused to be sworn, and the notary having committed him for contempt, he applied to a judge of the court of common pleas for a release under section 5255, Revised Statutes. His application was refused and he was recommitted under the order of the notary. The action of the judge was affirmed by the circuit court; and error is prosecuted here for the reversal of the action of the circuit court, and an order releasing the plaintiff in error. No question is made here as to the power of the notary to commit in proper cases; that has been settled by the previous decisions of this court. De Camp v. Archibald, 50 Ohio St., 618. The point is that this was not a proper case, and that he should, on the admitted facts, have been discharged on his application to the judge of the court of common pleas. It appears from the bill of exceptions, that a short time previous to this, Hafer had been subpoenaed in the same case, and had appeared and been examined at great length before a notary. By agreement the evidence had been taken by a stenographer, and transcribed; it being also agreed that the transcription should be the same as though taken in long hand by l.he notary. When his testimony, as written out by the stenographer, was presented to him for his signature, he claimed that there were inaccuracies in it, and refused to sign until the proper corrections were made. He indicated' the corrections that should be made, and agreed to sign it when made. This was refused him by the notary, and refusing to sign without the corrections being made, he was committed for contempt. On application to a judge of the court of common pleas, he was, as before stated, released. The question now is whether the party has the right to renew the taking of his adversary’s deposition, and cause him to be punished as for a contempt in refusing to be sworn on a new subpoena. We think on the admitted facts of this case, he had not. There is no claim that anything had been overlooked or omitted at the previous examination, save that he refused to sign his deposition. This, we think, he had a right to do until the transcript was corrected as indicated by him, and the common pleas judge so held and discharged him. Nothing is more likely to occur than errors in taking down the testimony of a witness, even when done by a stenographer. The witness must be the judge as to whether his testimony had been accurately taken down by whoever it is done. What he signs is his sworn statement, and he should not be required-» to sign what he under oath says is not accurate. Perjury could not be assigned upon a deposition so taken. In case of a controversy about the matter, witnesses might be called at the trial to state what the defendant stated in the first instance, for the purpose of reflecting on his credibility ,but he cannot be compelled to sign a deposition which he says on oath is not correct. To permit a party to take and retake a deposition, particularly that of his adversary, without showing that something had been unavoidably overlooked in the former deposition, would open the door to a great abuse and should not be allowed in practice.

The judgment of the circuit court and that of the common pleas are reversed and- the plaintiff in error discharged.

Williams, Burket, Spear, Davis and Shauck, JJ., concur.


author: By the Court :

text:
    Koch v. Barbour. Unger v. Unger.

      ■Jurisdiction of Supreme Court in error — Petition must contain allegation that sum involves $800, when — Section 6710, Revised Statutes — Such allegation necessary in suits for •miunction and specific performance of contracts to convey real estate.

    1. When the jurisdiction in error of this court under Section 6710, Revised Statutes, depends on the sum or value involved, and it is not disclosed by the record presented for review, the petition in error must contain an allegation that such sum or value, exclusive of interest and costs, exceeds three hundred dollars.
    2. Such allegation is necessary in petitions in error for the reversal of judgments in suits for injunction and for the specific performance of contracts to convey real estate.
    (Decided October 22, 1901.)
    Error to tlie Circuit Court of Richland county.
    Error to the Circuit Court of Paulding county.
    Mrs. Barbour brought suit against Mrs. Kocli for an injunction restraining her from putting doors and windows in the wall upon the line between their premises contrary to an agreement upon a consideration. The case was tried in the circuit court upon appeal and a perpetual injunction was granted as prayed for. Mrs. Koch filed her petition in error here to obtain a reversal of the judgment of the circuit court. Her petition in error does not allege that there, is involved in the judgmént whose reversal she seeks “the sum or value of more than three hundred dollars.”
    In the case of Unger v. Unger the defendant in error brought suit for the specific performance of a contract to convey real estate. 1 Tlie case was tried on appeal in the circuit court where a decree for the specific performance of the contract was entered in accordance with the prayer of the petition. The party against whom specific performance was decreed filed his petition in error here for the reversal of the judgment, but he does not allege that there is involved in*the judgment whose reversal he seeks or in the case “the sum or value of more than $300.”

      Douglas & Mennerl and M. A. Dittenhoefer, for Mrs. Koch.

      John (7. Burns and Cummins & McBride, for Mrs. Barbour.

      A. C. Robeson and Snook & Savage, for Isaac Unger.

      Holland & Willis, for John J. Unger.
   By the Court :

Jurisdiction in error is conferred upon this court by section 6710 of the Revised Statutes. The pertinent provisions of the section as amended April 25, 1898, before either of these petitions in error was filed, are: “A judgment rendered or a final order made by any circuit court * * * may be reversed, vacated, or modified by the Supreme Court on petition in error, for errors appearing on the record, in any case * * * in which is involved, exclusive of interest and costs, the sum or value of more than three hundred dollars * * * .”

In Sheaff v. Williams et al., 59 Ohio St., 559, it was decided that “When a petition in error and the required transcript of the record to be reviewed are filed in this court, the facts necessary to show the jurisdiction of the court under section 6710, Revised Statutes, as amended April 25, 1898, should appear either in the petition or the record.” When jurisdiction depends on the sum or value involved it usually appears ■ in the record brought here for review, but when, as in the present cases, it does not so appear, a sum or value necessary to bring the cases within the jurisdiction of this court must be alleged in the petition in error, and if the allegation is denied it must be supported by evidence. The statute referred to is not a general grant of jurisdiction to reverse judgments of inferior tribunals with an exception of cases involving less than three hundred dollars. On the contrary the grant is of jurisdiction in those cases only in which more than three hundred dollars is involved. The jurisdiction of a court of record over the subject matter of a controversy should appear in its record. It is quite obvious that such allegation of fact must be made when a review is sought of judgments rendered in suits for injunction and specific performance, since the sum or value involved does not otherwise appear.

Petitions in error dismissed for want of jurisdiction.

Minshall, C. J.; Williams, Buekut, Davis and Shauck, JJ., concur.


text:
    The People's Building and Loan Association v. Zimmerman, etc.

      Jurisdiction of Supreme Gourt as to amount involved — Requirement of amount of $300.00 — Section 6710, Revised Statutes— Difference between amount claimed and amount recovered.

    On error by tbe plaintiff below, the difference between the amount claimed by him and the amount recovered, determines the jurisdiction of this court under Section 6710, Revised Statutes, as amended April 26, 1898.
    (Decided October 22, 1901.)
    Motion to dismiss the case for want of jurisdiction.

      Chester M. Elliott, John B. Stahl, Kinney <£| O’Farrell and Richards cG Heffner, for plaintiff in error.

      Love tGl Oulbert, for defendant in error.
   By the Court :

This motion presents a question that was mooted in Draper v. Clark, 59 Ohio St., 336, but not decided. It is whether, where the plaintiff in an action claims a sum greater than $300.00, but recovers a judgment for less, the amount claimed determines the jurisdiction of this court on review, under section 6710, as amended April 25, 1898 (93 Ohio Laws, 255). We are now of the opinion that it does not wholly depend upon the amount claimed but upon the difference between the amount claimed and the amount recovered. Where the difference is greater than $300.00, the court has jurisdiction to review the judgment, otherwise not. The amount claimed, but which the plaintiff does not recover, is the amount involved in the judgment of which he complains. Where a plaintiff recovers part, but not all, of what he claimed, the judgment is against him as to the difference, and it is this difference of which he properly complains in a proceeding in error. It is all that he will lose by the judgment of the court unless reversed. And there is no more reason for holding that the plaintiff should have the? right to prosecute error, when the amount denied him, by the judgment is less than $300.00, than there is for holding that the defendant should not have such right when the amount of the recovery is less than $300.00. It is the loss to the party complaining that determines the jurisdiction of the court in such cases. On malting a calculation in this case, it is found that the difference between the claim of the association against the defendant and the amount recovered is greater than $300.00, and the motion for this reason is overruled, and not that the amount claimed was greater than $300.00.

Motion overruled.

Minshall, C. J., WroniAMS, Burkex, Davis and Shauck, JJ., concur.


author: Shauck, J.

text:
    Reiff v. Mullholland et al.
    AZZ allegations of pleading to be considered — In determining effect of any — Cross-petition of defendant — For reformation of written instrument — Judgment as to allegation of mistake, conclusive, when — To facts admitted and found by court — Court should apply law — Law of pleading — (Agency in promissory notes.)

    1. All the allegations of a pleading should be considered in determining the effect of any of them, and a general denial of the allegations of a petition is unavailing if inconsistent with the express admissions of the answer.
    2. A defendant having interposed a cross-petition praying for the reformation of a written instrument on which the plaintiff’s action is founded, the finding and judgment of the court thereon while it remains in forcé is, in the further progress of the case, conclusive as to the allegations of mistake.
    3. When by the admissions of the parties and the finding of the court all the material facts are conclusively established the court should apply the law to such facts and render the judgment which it requires.
    (Decided November 19, 1901.)
    Error to tbe Circuit' Court of Seneca county.
    On August 20, 1890, plaintiff filed a petition in tbe court of common pleas to recover of tbe defendants individually on a promissory note of wbicb tbe following is a true copy:
    “McCutchenville, April 28, 1883.
    “For value received, we, tbe Trustees of tbe Mc-Cutcbenville Cemetery Association, promise to pay to Henry Reiff, or bearer, six hundred and seventy-nine dollars and sixty-tbree cents, one year after date, with eight per cent, interest annually.
    “Levi H. Mullholland,
    “Owen Haines,
    “Trustees.”

      The defendants answered as follows: They denied generally the allegations of the petition and alleged that in June, 1875, the McCutchenville Cemetery Association, then unincorporated, purchased from one Starkey, land for cemetery purposes, and for the purchase price executed to him a promissory note signed by its trustees. Afterwards in April, 1877, the association was duly incorporated. Starkey thereafter sold and transferred the note to one Lott who sold and transferred it to the plaintiff. In April, 1879, the note was renewed by the execution to the plaintiff of another by the trustees of said association, the note being for the sum of $579.45, with eight per cent, interest payable to the plaintiff or bearer. On xlpril 28, 1883, to renew the note last mentioned, the note set ou.t in the petition was executed; and in that connection the defendants allege: “Wherefore the defendants say that the said promissory note referred to in the petition was wholly without consideratiqn.” The remainder of the answer is as follows:
    “3. And for further answer herein the defendants say:
    “That as between the plaintiff, Henry Reiff, as payee of the promissory note mentioned and referred to in the petition, and the defendants, Levi H. Mullholland and Owen Haines, as makers thereof, no consideration whatever moved from the said Henry Reiff to the said Levi H. Mullholland and Owen Haines for the making of the same, wherefore the said promissory note is wholly without consideration.
    “4. And for further answer herein the defendants say:
    “That on the day when the said promissory note mentioned and referred to in the petition was executed, and before the defendants would consent to sign the same, the plaintiff promised and agreed to and with the defendants that they, the defendants,, should not be personally liable on said promissory note, but that only the property of the said cemetery association should be holden therefor.
    “That thereupon the defendants, on the faith of the said promise and agreement of the plaintiff, signed said promissory note, as trustees of the said cemetery association, and the plaintiff accepted the same with the full understanding that the defendants should not be personally liable thereon.
    “o. And for further answer herein the defendants say:
    “That on the 28th day of April, 1883, the plaintiff owned and held, as payee thereof, a certain promissory note for the sum of five hundred and seventy-nine dollars and forty cents, with eight per cent, interest annually, dated April 13, 1879, and signed by the plaintiff and John Row and James Starkey, trustees of the McCutchenville Cemetery Association.
    “That on said 28th day of April, 1883, it was mutually agreed, by and between the plaintiff and the defendants, who were then duly elected and acting trustees of said cemetery association, that the defendants, as such trustees, in lieu of said note so held by the plaintiff as aforesaid, should execute and deliver to the plaintiff such proper instrument, in writing, as would bind the property of the said cemetery association for the payment of the sum of six hundred and seventy-nine dollars and sixty-three cents, with eight per cent, interest from that date, but which would in no wise make the defendants personally, liable for said sum, or any part thereof.
    “That thereupon the said instrument in writing, or promissory note, mentioned and referred to in the petition, was drafted, and the defendants signed the «ame as such trustees, and the. plaintiff accepted the same, under the mutual mistake and belief that the instrument in writing correctly stated and embodied their agreement aforesaid.
    “Whereupon the defendants pray that the said instrument in writing, or promissory note, may be reformed so as to properly and correctly embody the true agreement so made by and between the plaintiff and the defendants as aforesaid; and for such other relief as is proper.”
    The plaintiff replying admitted that the note upon which he counted was given in renewal as alleged in the answer, and denied all other allegations of the answer. He further alleged that the defendants were members of the unincorporated association at the time of the purchase of the lands which were the consideration of the first note, that they have ever since been members of said association and that they are, therefore, liable for the purchase price of the land.
    The cause having been tried in the court of common pleas upon the allegations of mutual mistake upon which the defendants in their cross-petition pray for a reformation of the note so that it should be the obligation of the corporation alone, the cause was appealed to the circuit court and there submitted on the cross-petition, the other pleadings and the evidence; and that court found in favor of the plaintiff and dismissed the cross-petition. That judgment remains in full force. In the court of common pleas the cause was tried three times — the last trial at least being after the judgment of the circuit court — on issues >f fact supposed to survive the judgment of the circuit court adverse to the reformation of the note. The last trial resulted in a verdict and judgment in favor of the defendants and that judgment has been affirmed by the circuit court. Its reversal is the object of the present petition in error. On the trial in the court of common pleas the defendants notwithstanding the objections of the plaintiff were permitted to introduce evidence tending to show that they refused to sign the note until they were assured by the plaintiff that he would not regard them as individually liable thereon, and that he would look to the corporation alone for payment. The plaintiff in his testimony denied such conversation or agreement. The court adhering to the view upon which such evidence was admitted charged the jury as follows:
    “It is claimed by the defendants that they signed said note with the understanding that said note was so executed on behalf of said association and was the note of the said association, and that the plaintiff at the time he received said note so understood such to be the fact, and that he, so knowing the fact, received and accepted said note of said association, and understood and agreed that these defendants were not to be held liable thereon as individuals. All of this is denied by the plaintiff in his reply.
    “This being an affirmative defense made by the defendants, the burden of proof as to such defense is upon the defendants. That is to say, the defendants are required to establish such defense by a preponderance of the evidence before you can find thereon in favor of the defendants.
    “The jury are to determine from the evidence in the case what the fact is. Was it the intention of the parties to this note when the same was made, executed and delivered, that said note was and should be held to be the note of the cemetery association, and not the individual note of Mullholland and Haines? If such was the understanding, and the plaintiff received and accepted said note with the understanding and agreement, then he cannot recover from the defendants in this action, for the right of action of the plaintiff would then be against such association, and not against the defendants individually. If you find from the evidence and circumstances proved that it was the intention and understanding of the parties to this note, at the time it was executed and delivered, that the note in controversy was and should be held to be the note of the association, and not the note of Mullholland and Haines individually, and the plaintiff received and accepted the note with that understanding and agreement, then the plaintiff cannot recover from the defendants in this case, for the reason I have already stated.
    “If, on the other hand, you find from the evidence there was no such understanding between said parties as defendants claim, but that such note was given as. the note of said defendants, then they would .be liable thereon.
    “In determining this question, you should take into consideration all the evidence adduced and the circumstances proved in the case. The note sued on will be in evidence before you, and you should also consider the evidence as to the facts and circumstances under which the note was given — the consideration of such note, and all the other facts and circumstances appearing in evidence in this case.
    “Determining this question will, of course, determine whether the plaintiff is entitled to recover. And if, under the instructions given you, you should find for the plaintiff, you will compute interest according to the terms of the note and the amount you find by such computation you will insert in the blank I have prepared for that purpose, and your foreman will sign that verdict. .
    “If, on the other hand, you find that the note was and is not the note of said defendants, but was and is the note of the association, then your verdict should be for defendants.”
    The trial judge indicated a similar view of the subject by refusing to give in charge to the jury propositions which were requested by counsel for plaintiff.

      Brewer c£ Brewer, for plaintiff.

      Seney & Sayler, for defendants.
   Shauck, J.

In view of former decisions of this court and of rules which elementary writers have made familiar, the reason for a report of this case will be found in the fact that our conclusion is opposed to that which was reached by the courts below', rather than in the hope of making a valuable addition to juridical literature.

That the words “trustees et cetera” are only descriptive and that the signers of the pote are individually liable according to its terms may be affirmed on the authority'of Titus et al. v. Kyle, 10 Ohio St., 444, and Bank v. Cook, 38 Ohio St., 442. This liability appears to have been recognized when the defendants filed their cross-petition alleging that the note was drawn and executed in its present form by mistake, and that it was intended that the instrument should be .the obligation of the association instead of the defendants, and praying for its reformation so that it should conform to that intention. That is the proper mode of seeking relief on account of mistake. It recognizes the familiar doctrine that mistakes in written instruments are not corrected at law, that in the absence of fraud the written stipulations of parties must stand until' they are corrected in equity where the facts necessary to reformation are found by the court instead of a jury, and where there is required evidence of greater probative effect than a mere preponderance. The judgment of the circuit court being unreversed concluded the inquiry as to mistake in the execution of the instrument. The record shows that the last trial in the court of common pleas proceeded as though upon appeal from the judgment of the circuit court dismissing the cross-petition to a jury in the court of common pleas. Not only was such a retrial of the issues as to mistake wholly unauthorized but the judgment of the circuit, court upon that question when the case was before it on appeal left no issue for trial. True the answer contains a general denial of the allegations of the petition and an inferential averment that the note was executed without consideration. But these portions of the an-, swer are argumentative merely. They are unavailing in view of the express admissions of the same pleadings that the defendants executed the note, and that it was given in renewal of a former note for the purchase price of land sold and conveyed by the payee, and the implied admission that no portion of it had been paid. There is nothing of merit in the answer except the allegations of mistake in the instrument with the prayer for its reformation on that ground. As to those allegations the adverse judgment of the circuit court on the appeal was final and nothing remained to be dope but to apply the law to a state of facts thus conclusively established by the admissions of the parties and the judgment of the circuit court. The record does not permit the view that the case, was finally tried as if upon other issues. However forcibly the testimony of the defendants themselves may have tended to show that the circuit court should have reformed the note according to the prayer of their cross-petition, it affirmatively shows that without such reformation the plaintiff is entitled to recover.

Judgments of the circuit court and common pleas courts reversed and judgment' for the plaintiff.

Minshall, C. J.; Williams, Btjrket, Spear and Davis, JJ., concur.


author: Davis, J.

text:
    The Logan Natural Gas & Fuel Co. v. City of Chillicothe.

      Power of municipal authorities to regulate price of gas — Cannot compel company to accept ordinance, when — Sections 2478, 21/79, and 2485, Rev. Stat. — Price fixed by city council for ten years — Cannot be altered except by consent of company — Section 2485, Rev. Stat., does not apply to natural gas companies — Ordinance passed by council and accepted by company is valid:, when — Municipal law — Ordinance not restricted by Sec. 1691, Rev. Slat.

    1. A city council has no power under Revised Statutes, Sections 2478 and 2479, to compel a gas company, without its assent to the ordinance, to furnish gas in a manner and at a rate entirely at the option of the consumer.
    2. When an ordinance regulating the price of gas under Revised Statutes, Sections 2478 and 2479, provides that it shall he in force and take effect from and after its passage and legal promulgation, and also provides that the gas company shall be entitled to charge at a certain rate for ten years from a date later than the date of the passage and legal promulgation of the ordinance, such provision, when accepted in writing by the gas company, is valid and binding for the period of ten. years from the date so named. Such ordinance is not restricted by Section 1691.
    3. Revised Statutes, Section 2485, does not apply to natural gas companies.
    4. When a city council, proceding under Revised Statutes, Sections 2478 and 2479, has fixed the price of gas according to one standard, and the same has been duly accepted by the company, it cannot be altered without the consent of the company within ten years by fixing another standard which may affect the limit or price previously fixed.
    (Decided November 19, 1901.)
    Error to the Circuit Court of Ross county.
    On February 11,1895, the city of Chillicothe passed an ordinance granting a franchise to the Logan Natural Gas & Fuel Company and providing that said ordinance should be in force and take effect from and after its passage and legal promulgation. Section second of the said ordinance provided that the said company, its successors or assigns, shall for a period of ten years from the first day of September, 1895, be entitled to charge for such natural gas furnished not to exceed the sum of twentyjfive cents per thousand cubic feet. There was no provision in said ordinance for a “flat” rate which is a fixed price per month for each fire. Very little gas was sold by meter measurement, most of the consumers taking gas at flat rates by contracts between said company and individual consumers. In September, 1900, the gas company announced an advance in the price of gas as furnished by the flat rates, and thereupon on September 18, 1900, the city council passed an ordinance seeking to compel the gas company to continue to furnish gas at the flat rates which it established when it began business in the city of Chillicothe and had continued up to the time of the beginning of the controversy. The gas company refused to obey the ordinance of September 18,1900, and this action was begun by the city of Chillicothe» by its city solicitor against the Logan Natural Gas & Fuel Company seeking a mandatory-injunction requiring the gas company to furnish natural gas to all persons who are ready, able and willing to pay for the same in accordance with the prices fixed by the ordinance of September 18, 1900, so long as it may continue in the business of furnishing natural gas to the citizens and public buildings of said city, and that it be restrained from collecting from those who have signed written contracts, more than the price fixed in said ordinance.
    The court of common pleas granted a perpetual injunction, and on appeal the circuit court entered a decree in favor'of the city. This petition in error is filed to reverse that judgment.

      Lawrence T. Neal, for plaintiff in error.
    The validity of a municipal ordinance is not affected by the fact that either the whole or any part of it is to take ¡effect at some future day.
    The power to enact a law necessarily includes the right of the law-making power to determine when, and upon what conditions, it shall go into operation. 23 Am. and Eng. Ency. Law (1 ed.), 233; Sutherland Stat. Constr., Secs. 71, 107; Blanding v. Burr, 13 Cal., 357; People v. Salomon, 51 Illinois, 37; Stone v. Charlestown, 114 Mass., 214; 23 Am. & Eng. Ency. Law (1 ed.), 223.
    The same principle applies to ordinances passes 1 by municipal corporations. The test-writers and the courts in the reported cases make no distinction in its application between statutes and ordinances, and apply it indiscriminately to the whole, or any part or section of a statute or ordinance. 1 Dillon on Municipal Corporations (4 ed.), Sec. 309; Mayor v. Clunet, 23 Maryland, 450; Rushville v. Gas Company, 132 Indiana, 575; Hensly v. Hamilton, 2 Circ. Dec. 114; 3 C. C. R., 201; Moore v. Given, 39 Ohio St., 661.
    It is, however, immaterial, so far as our case is concerned, whether the true construction of section 1691 is as we claim it should be, or not. If it be construed, as we insist it must be, it will be conceded that it cannot have the effect to invalidate the second section of the ordinance of February 11, 1895; and if- it be construed contrary to the interpretation that we give to it, the conclusive answer to the contention of the city is, that its provisions can have no application to contracts of the character of the one in controversy, because the power of council to make such contracts is derived from section 2479 of the Revised Statutes.
    It is perfectly apparent that the provisions of section 1691 and the provisions of section 2479, which latter relate peculiarly and exclusively to the subject matter of the second section of the ordinance of February 11, 1895, cannot both apply to the case, if section 1691 is to be considered as expressing a legislative intention incompatible with that assigned to it by us; and it follows, as a necessary sequence from this, that the provisions of section 2479 must be read as an exception to the provisions of section 1691.
    The universal rule for the construction of statutes is that when general and specific provisions, either in the same statute or in different statutes, are in conflict, the general provisions do not control or override the specific provisions, but the specific provisions are to be read as exceptions to the general provisions and held to supersede them. 23 Am. & Eng. Encv. Law (1 ed.), 426.
    The principle has been approved and applied by this court in many cases. State v. McGregor, 44 Ohio St., 628; Caldwell v. Carthage, 49 Ohio St., 334; Cincinnati v. Holmes, 56 Ohio St., 104; Hoey v. Gilroy, 129 New York, 132.
    The doctrine of ultra vires is regarded by the courts as “an ungracious and odious one” at best; and, where, as in this instance, the exercise of the alleged excess of power by the city is merely incidental to the principal matter of agreement between it and the company, which is strictly within the limit of the legitimate power of each of them, is not immoral, does not violate any statute expressly forbidding it, and is not illegal, the settled rule is that the entire transaction,- except as to the part which is ultra vires, will be sustained. No good reason can be advanced why, upon principle, this rule is not a just and wise one. The courts in this way enforce that part of the contract, which is intra vires, and reject that part of it,, which is ultra vires.

    When it is remembered that the words “ultra vires'v and “illegality” represent totally different and distinct ideas, that a contract or transaction that is ultra vires is, as a general thing, far from being either illegal or wrong, or in any manner contrary to public policy, and that the question in each case is only as to the competency and power of a corporation to make the contract, and not as to the legality of the contract, it will readily be seen that this rule is based upon sound and just principles.
    The enforcement of a contract, which is in part ultra vires, in so far as it is within the power of a corporation to make it, leaving the parties without a remedy as to the part of it which, is in excess of such power, and no more, must certainly fulfill every requirement of the law, as there is a well-defined distinction between this and the recognition by the courts of a contract that is void, because it is wholly ultra vires.

    The following cases, among others, are illustrative of the principle and its application: Somers v. Cincinnati, 6 Dec. (Re.) 887; 8 Am. L. Rec. 612; Toledo v. Gas Co., 3 Circ. Dec., 273; 5 C. C. R., 557.
    This court has, on different occasions, sustained the identical principle, which, we contend, is applicable to this case. The principle was recognized and applied in Knox County (Comrs.) Nichols, 14 Ohio St., 260, where the commissioners, in addition to doing what they were authorized by statute to do, in the matter of issuing bonds for railroad purposes, did something that they were not authorized to do. Smartle v. Penhallow, 2 Lord Raymond, 1000; State v. Board of Ed., 35 Ohio St., 519; State v. Gas Co., 37 Ohio St., 45; Lougee v. State, 11 Ohio, 68.
    This ease was affirmed and followed, at the same term of the court, in Bonsal v. State, 11 Ohio, 72, and in Brown v. State, 11 Ohio, 276, and afterwards in Montgomery v. State, 7 Ohio St., 107; Eldora v. Burlingame, 62 Iowa, 32; Harbaugh v. Monmouth, 74 Illinois, 367; Greenfield v. Mook, 12 Ill. App., 281; McPherson v. Foster, 43 Iowa, 48.
    The doctrine established by this case is adopted by the Supreme Court of Michigan in Stockdale v. School District, 47 Mich., 226; Grand Gulf Bank v. Archer, 8 Smedes & Marshall’s Reports (Miss.), 152; Culbertson v. Fulton, 127 Ill., 30; Wellston v. Morgan, 59 Ohio St., 147.
    The rule as to ultra vires as stated by this court, is, “that where a contract has been executed and fully performed, on the part either of the corporation or the other contracting party, neither will be permitted to insist that the contract and such performance by one party were not within the corporate power of the company.” Hays v. Gas Co., 29 Ohio St., 330; Hydraulic Co. v. Railway Co., 29 Ohio St., 341; Larwell v. Savings Fund Society, 40 Ohio St., 274; Armstrong v. Karshner, 47 Ohio St., 276; Whitney Arms Co. v. Barlow, 63 New York, 62; Railway Co. v. McCarthy, 96 U. S., 258; National Bank v. Mathews, 98 U. S., 621; 2 Morawetz on Corporations (2 ed.), Secs. 689 to 699; Sedgwick on Stat. & Const. Construction, 73; Cable Company v. Baltimore, 66 Fed. Rep., 140; Bank v. Arkansas City, 76 Fed. Rep., 271; Gas Company v. San Francisco, 9 Cal., 453.

      The following cases are to the same effect and will, upon examination, he found directly in point upon the question. Pike’s Peak Power Co. v. Colorado Springs, 105 Fed. Rep., 1; Lloyd v. Mayor of New York, 5 New York, 369; Valparaiso v. Gardner, 97 Ind., 1, 4; Vincennes v. Gas Light Co., 132 Ind., 114; Touchard v. Touchard, 5 Cal., 306; Argenti v. San Francisco, 16 Cal., 256; Cincinnati v. Cameron, 33 Ohio St., 336; Searcy v. Yarnell, 14 Am. & Eng. Corp. Cas., 523; s. c. 47 Ark., 269
    It may he stated as the general rule, that the plea, of ultra vires will not be allowed to prevail in any .case, whether interposed for or against a corporation, municipal or otherwise,-when it will not advance justice, but will, on the contrary, accomplish a legal wrong. 2 Morawetz on Corporations, Sec. 693; Manufacturing Company v. East Portland, 18 Oregon, 21: Schipper v. Aurora, 121 Ind., 154; Wright v. Hughes, 119 Ind., 324; Bass Works v. Commissioners, 115 Ind., 234; Kadish v. B. & L. Association, 151 Ill., 531; Bank v. Elevator Co., 90 Mich., 550; Lewis v. Saving Association, 98 Wis., 224; Holmes v. Metal Company, 127 New York, 252.
    The passage of the ordinance of September 18, 1900, was a repudiation by the city of its contract made with the company by the ordinance of February 11, 1895, and an attempt upon its part to declare a forfeiture of that contract, after it and its inhabitants had received and enjoyed the benefits of said contract for five years, at the expense of the company, which had expended more than $300,000 in performing the conditions of the contract to be performed by it; and a court of equity will not, under such circumstances, inquire whether the contract was ultra vires or not.

      This is an equitable action, and the city does not come into court with clean hands. It is a fundamental principle of equity that “he who comes into equity must come with clean hands.” Then, too, another principle of equity is that “he who seeks equity must do equity.” And here the city, in violation of both these principles, not only seeks equitable relief, but asks relief of a kind that courts of equity will never grant, — the enforcement of a forfeiture. We say enforcement of a forfeiture, because this is the practical effect of a decree enjoining the company from charging more for gas than is authorized to be charged by the ordinance of September 18,1900, and from charging for gas what it is authorized to charge by the second section of the ordinance of February 11, 1895. Pugh v. Electric Light Co., 10 Circ. Dec., 573; 19 C. C. R., 594.
    The principle established by this decision is sustained and applied in the case of Mayor of Macon v. Huff, 62 Georgia, 221.
    Again, while these provisions of the ordinance of September 18, 1900, are so unreasonable as to render it void, it is subject to another objection that is to our mind equally fatal to its validity. The city by the second section of this ordinance delegates to each individual consumer of gas the. power to determine for himself, — that is within certain prescribed limits-the price to be paid for it; and this, the city cannot legally do. A municipal corporation is not authorized to delegate to individuals the power given to it by the statute to regulate the prices to be charged for gas. The power thus vested in council is a discretionary one, and it is an unlawful exercise of such power to delegate it to any party or person, even though he may be an officer of the city itself, much less to an individual whose interests are directly opposed to the interests of the company from which Ms supply of gas is to be purchased.
    The rule, that power conferred upon a municipal corporation by the statute or its charter, as the case may be, which requires the exercise of judgment and discretion, cannot be delegated by it, is fully settled by authority. 1 Dillon on Municipal Corp. (4 ed.), Sec. 96; Gas Light Co. v. Minneapolis, 36 Minnesota, 159; East St. Louis v. Wehrung, 50 Ill., 28; Franke v. Water Supply Co., 88 Ky., 467.

      John O. Entrehin and John W. Goldsherry, for plaintiff in error.
    The ordinance of February 11,1895, when accepted by the gas company constituted a contract and was binding upon both the company and the city, and fixed, for a period of ten years, the minimum price at which said gas company was required to furnish gas to said city and the citizens thereof. And under and by virtue of it said gas company acquired vested rights which could not be taken away or impaired by any subsequent action of said city, without the consent of said gas company. Section 2479, Rev. Stat., State v. Gas Co., 37 Ohio St., 45; Indianapolis v. Gas Trust Co., 140 Ind., 107; Beach Modern Law Contracts, Secs. 1143 and 1198 note; State ex rel. v. Gas Light & Coke Co., 18 Ohio St., 262; State v. Gas Light Co., 102 Mo., 472; Lima Gas Co. v. City of Lima, 2 Circ. Dec., 396; 4 C. C. R., 22; 14 Am. & Eng. Enc. Law (2 ed.), 927.
    . Regard must always be had to the effect and real object in view.
    • An ordinance is not invalid because some of its provisions are to take effect in the future and upon a contingency. Rushville v. Natural Gas Co., 132 Ind., 575.
    The city is not exempted from the common obligation to do justice, which binds individuals. Such obligations rest upon all persons, whether natural or artificial.
    Corporations, as much as individuals, are bound to good faith and fair dealing, and the rule is well settled that they cannot by their acts, representatives, or silence, involve others in onerous engagements, and then turn around and disavow their acts, and defeat the just expectations which their own conduct has superinduced. Railroad Co. v. Howard, 74 U. S. (7 Wall.), 392; Pine Grove Twp. v. Talcott, 86 U. S. (19 Wall.) 666; National Bank v. Matthews, 98 U. S., 621.
    The plea ultra vires, as a general rule, will not prevail, whether interposed for or against a corporation, when it will not advance justice, but, on the contrary, will accomplish a legal wrong. It is now very well settled that a corporation cannot avail itself of the defense of ultra vires when the contract has been in good faith fully performed by the other party, and the corporation has had the full benefit of the performance of its contract. Whitney Arms Co. v. Barlow, 63 N. Y., 62.
    The rule seems to be well established that where a contract has been executed and fully performed on the part, either of the corporation or of the other contracting party, neither will be permitted to insist that the contract and such performance by one party were not within the corporate power of the company. Hays v. Coal Co., 29 Ohio St., 330; Street Ry. Co. v. Carthage, 9 Circ. Dec., 833; 18 C. C. R., 216; Bank of Chillicothe v. Chillicothe, 7 Ohio (pt. 2), 31;
      Bank v. Flour Co., 41 Ohio St., 552; State v. Board of Ed., 5 Circ. Dec., 447; 11 C. C. R. 41, 45; Piemental v. San Francisco, 21 Cal., 352; Railroad Co. v. Commissioners, 48 Kan., 70; 30 Am. St. Rep., 273.

      Ultra vires prevails in full force only where the contracts or corporations of this character remain wholly executory, and this rule prevails, even to public or municipal corporations in analogous cases. Thompson v. Lambert, 44 Iowa, 239; State v. Van Horn, 7 Ohio St., 327; State v. Union Township, 8 Ohio St., 394; Goshen Township v. Railroad Co., 12 Ohio St., 624; Knox Co. (Comrs.) v. Nichols, 14 Ohio St., 260; State v. Goshen Twp., 569; Railroad Co. v. Marion Co., 36 Mo., 294; Allegheny City v. McClurkan, 14 Pa. St., 83; Bennington v. Park, 50 Vt., 178; East St. Louis v. Gaslight Co., 98 Ill., 415; Houfe v. Fulton, 34 Wis., 608; Kneeland v. Gilman, 24 Wis., 39; Argenti v. San Francisco, 16 Cal., 256; Lamb v. Railroad Co., 39 Iowa, 333; Railroad Co. v. Chatham, 42 Conn., 465.
    ' Whenever a state, county, corporation, partnership, or person, has power originally to do a particular thing, it also has the power to ratify and make valid an attempted effort to do such a thing, although the same may have been done ever so defectively, informally, and even fraudulently, in the first instance. East St. Louis v. Gaslight Co., 98 Ill., 415; San Francisco Gas Co. v. San Francisco, 9 Cal., 469; Hitchcock v. Galveston, 96 U. S., 341; State v. Mitchell, 31 Ohio St., 592.
    The parties to this contract agreed that it should be for a term of ten years, and the court is now asked to find that it was either for a period of more than ten years or less than ten years, that is, to make a new contract for the parties, and to declare such new contract ultra vires. Natural Gas & Fuel Co. v. Dairy Co., 60 Ohio St., 96.
    The ordinance passed by the city on September 18, 1900, and which it is endeavoring to enforce in this action is unreasonable and void, because it compels the gas company to furnish gas to the consumer at a “mixer” or “flat rate,” upon the demand of the consumer.

      M. A. Daugherty, for plaintiff in error.
    First. It is highly important first to determine just what legal relation arose between the city and the gas company, from the passage of the ordinance of February 11, 1895, granting the franchise and fixing the minimum' price for the period of ten years and the written acceptance of its provisions by the. company.
    Read and considered in the light of Secs. 2478 and 2479 of the Revised Statutes a contractual relation was established and both parties are bound by the contract thus created. Gas Light & Coke Co. v. State, 18 Ohio St., 237; State v. Gas Company, 37 Ohio St., 45; Lima Gas Co. v. Lima, 2 Circ. Dec., 396; 4 C. C. R., 22; Toledo v. Gas Co., 3 Circ. Dec., 273; 5 C. C. R., 558; Clark on Contracts, page 645.
    This section 1691 does not require complete performance or performance to any extent during the term for which all the members of the council are elected as essential to the validity of its contracts; the only requirement is that the council shall not enter into any contract which is not to go into full operation during such term.
    The operation of a contract must be distinguished from its performance. The former is determined by its obligations; the latter accomplishes their die-, charge.
    There is not and cannot be a moment of time from entering into the agreement until its final performance that it is pot in full operation. Lancaster v. Miller, 58 Ohio St., 558.
    The doctrine of mutuality of right and mutuality of remedy relating to the specific performance of contracts as stated by Pomeroy, has met the clear and distinct approval of the Supreme Court of Ohio in the case of Steinau v. Gas Company, 48 Ohio St., 324; Tiffin v. Shawhan, 43 Ohio St., 178.

      James A. Cahill, City Solicitor, Wallace D. Yaple, Seymour Cunningham and John P. Phillips, for de-. fendant in error.
    Our claim is that under section 1777 it is the duty of the city solicitor to apply, in the name of the city, for the specific performance of an obligation creating a' public duty, which is being evaded or violated.
    In this case, from the enactment of the ordinance of September 18, 1900, there resulted an obligation creating a public duty, viz: to furnish gas to the citizens in the manner and at the prices therein set forth (flat rate, Zanesville v. Gas Light Co., 47 Ohio St., 1) ; ' and that the refusal of the plaintiff in error to comply with its terms was an evasion and violation within the meaning of this section. Gas Light Co. v. Zanesville, 47 Ohio St., 35.
    It is claimed by the plaintiff in error that the solicitor had no right to bring this action in the name of the city for the reason that the ordinance of September 18, 1900, was never accepted by the gas company.
    The ordinance under which the case of Gas Light Co. v. Zanesville, 47 Ohio St., 35, was brought, was an ordinance similar to the one on which this action is founded, and was never accepted by the gas company.
    Should the contention of the plaintiff in error, that an action to compel a gas company to furnish gas at' prices prescribed by ordinance could not be brought by the solicitor in the name of the city, unless the terms of the ordinance have been accepted by the company, be the correct construction, then the company could prevent any right of action arising on such an ordinance by simply neglecting or refusing to accept the terms thereof.
    If the city has not the right to bring this action in its own name, an action could not be maintained by a taxpayer in his own name, and consequently no one would have a right of action. Knorr v. Miller, 3 Circ. Dec., 297; 5 C. C. R., 609; Toledo v. Gas Co., 3 Circ. Dec., 273; 5 C. C. R., 557.
    The city council has had the power to regulate the prices to be charged for natural gas delegated to it by the legislature, by Sections 2478 and 2479 of the Revised Statutes, they being the first two sections of the chapter of the Revised Statutes, relative to gas and other companies; that this power to regulate exists in the legislature and may be delegated to municipal corporations, cannot be questioned by the plaintiff in error. Munn v. Illinois, 94 U. S., 113.
    The legislature of Ohio has seen fit to delegate this power to regulate to municipal corporations by the enactment of section 2478.
    Plaintiff in error claims that the ordinance of September 18,1900, should not regulate it for two alleged reasons:
    (a) Because the so-called “flat rate” provided for therein — which is a certain specific price per month for each fire — is unjust and unreasonable.

      (b) Because council had exercised its right to regulate for the period of ten years when it passed the ordinance of February 11, 1895, providing, among other things, as follows:
    As to the first proposition, that the provisions of the ordinance of September 18, 1900, are unjust and unreasonable:
    (a) The question as to whether the “flat rate” is reasonable or unjust is a question of fact to be determined by all the evidence and circumstances of the case.
    It is alleged in the petition and admitted by the plaintiff in error that the prices fixed by said ordinance are practically the same as the company has been charging for five years, or ever since it has been in the business of furnishing gas to the citizens of Chillicothe.
    Surely the plaintiff in error can not in good faith claim that a rate is unreasonable and unjust which it has itself employed and enforced in this city for so long a time without a change, unless conditions have changed so materially without the fault of the company, that gas could no longer be furnished at such rates at a profit.
    The so-called “flat rate” for natural gas does not differ from the rates of so much per arc light for public or private lighting, nor the rates of so much per post for gas lights for street lighting, about which there can be no question that a city council has the right to impose.
    The ordinance of the city of Zanesville, provided for both a meter rate to individuals and a “flat rate” of so much per lamp post for street lighting, ánd it was really the right to make the latter regulation that caused the litigation in that case.

      As to the second proposition, that council, having regulated the price for a fixed period by the ordinance of February 11, 1895, is precluded from changing it within that period.
    (b) Assuming, for the sake of argument, that the attempted regulation in the ordinance of February 11, 1895, was lawful, in so far as it fixes meter rates, it does not necessarily follow that the city council is precluded from fixing a “flat rate,” such as is fixed in the ordinance of September 18,1900, for the reason that the language of section 2 of the ordinance of February 11, 1895, plainly implies that other than meter rates were contemplated; the language referred to is as follows: “And when the said gas is furnished by meters the rent or price of said meter shall not exceed,” etc.
    This language implies that gas may be furnished in other ways, and it is an admitted fact that gas may be furnished in other ways, and it is an admitted fact that gas was furnished almost exclusively by the “flat rate” from the start, for which there was never any regulation of price until council passed the ordinance of September 18, 1900.
    If the city council had no power the effect would be that the gas company, after having a rate established for it by one method, could then arbitrarily inflict another and entirely different one on the people.
    The ordinance of February 11, 1895, in so far as it attempts to regulate the price of natural gas for the time fixed therein is in contravention of section 2479 of the Revised Statutes, and therefore absolutely void.
    Our claim in regard to this question is, that municipal corporations have no powers, except those which are delegated in express words, or which are necessarily implied, and that the power to regulate the price of gas for a period of years granted by Sec. 2479, Rev. Stat., must be strictly construed. Beach on Public Corporations, Sec. 538; Dillon on Municipal Corporations (3 ed.), Sec. 89; Ravenna v. Pennsylvania Co., 45 Ohio St., 118; Electric Light Co. v. Electric Light Co., 3 Circ. Dec., 168; 5 C. C. R., 340; Western College v. Cleveland, 12 Ohio St., 375; Cleveland v. Bank, 16 Ohio St., 236; Holder v. Yonkers (N. Y.), 1 Mun. Corp. Cases, 164; Wellston v. Morgan, 59 Ohio St., 147; Ottawa v. Carey, 108 U. S., 110; Lewis v. Shreveport, 108 U. S., 282; Minturn v. Larue, 64 U. S. (23 How.), 435, Dawson v. Waterworks Co., 2 Mun. Corp. Cases, 73 (Georgia).
    Many other cases, state and federal, might be cited to show that this doctrine is the settled law. Dillon Mun. Corp. (3 ed.), Sec. 89.
    This doctrine is well established in Ohio. Ravenna v. Penn. Co., 45 Ohio St., 118.
    In regard to the application of this well established principle to the case at bar, we claim that:—
    (a) In the enactment of section 2479 of the Revised Statutes, the legislature conferred on city councils a power which they did not theretofore possess, viz: — To fix the minimum price of gas for a period of time not exceeding ten years.

    (b) That in attempting to execute this power by the enactment of the ordinance of February 1.1, 1895, the city council of the city of Chillicothe exceeded its powers, when it fixed the price for a period of ten years, said ten year period to begin September 1, 1895.

    The council in passing the ordinance of February 11, 1895, plainly exceeded its authority, and its act in that respect is void, for a period of ten years and six months would elapse before any council could again regulate the price.
    To hold otherwise would be to construe this section to mean that a city council could pass an ordinance to regulate the price of gas for the period of ten years, the period to begin six months or sixty months in the future, in the discretion of the council. It would plainly be a violation of this section for council to pass an ordinance regulating the price for a period to begin five or ten years in the future. How then can a court draw a line defining just how far in the future a city council may go in fixing the beginning of the ten year term?
    If council has the power to make such a regulation, the term thereof to begin six months in the future, it is not delegated to it in express words by section 2479 of the Revised Statutes, neither is it necessarily implied, in accordance with the rule laid down in Ravenna v. Pennsylvania Co., supra.

    It would certainly border on the ridiculous to claim that the right to make the ten year term in a gas contract begin six months in the future is “essential to the very life of the corporation,” yet that would be, in effect, the construction placed on the law should the plaintiff in error prevail in this case.
    If there is a doubt that council possessed the power to cause the ten year period to begin six months in the future, then that doubt must be resolved against the corporation and in favor of the public. Goblet Co. v. Findlay, 3 Circ. Dec., 205; 5 C. C. R., 418.
    By the same course of reasoning section 2485 of the Revised Statutes must apply, and this is undoubtedly the correct construction of the intermediate sections between 2478 and 2491 — the whole chapter applies to one as well as the other. Gas Light & Coke Co. v. Avondale, 43 Ohio St., 257.
    The city is not now estopped from setting up its lack of power to pass the ordinance of February 11, 1895. Dawson v. Dawson Waterworks Co. (Ga.), 2 Mun. Corp. Cases, 73, and notes.
    The doctrine of estoppel does not apply to municipal corporations as to business corporations. Beach on Modern Law of Contracts. Section 1139. •
    The rule is that relinquishment of the power of governmental control is never to be presumed but must clearly appear, or the construction most favorable to the public will be adopted. Providence Bank v. Billings, 29 U. S. (4 Pet.), 514; Ravenna v. Pennsylvania Co., 45 Ohio St., 118; Ruggles v. Illinois, 108 U. S., 526.
    Section 2479 of the Revised Statutes, grants the power to contract away for ten years the right to public control and should therefore be so construed as best to guard the public interest.
    We do not see the logic of the argument that we are attempting to enforce a forfeiture. A forfeiture presupposes a right. If there was no valid contract under section 2479 of the Revised Statutes, or if estoppel does not in effect confer a right, there can be no question of forfeiture in the case. We have argued the question as to the validity of the contract under section 2479, Revised Statutes, contending that it was illegal and ultra vires.

    The remaining question is, does the doctrine of estoppel assist the company?
    1. Should this court hold with our contention that the contract made was illegal because prohibited by section 1691 of the Revised Statutes, or other laws it will not be seriously contended that, by either ratifieation or estoppel- it can be made effective to prevent subsequent action of the city council.
    2. But should the court hold the contract not illegal but merely in excess of council’s powers, does the doctrine of ratification or estoppel invoked by plaintiff assist it?
    Ratification has no effect, for the contract can be ratified only upon conditions essential to a valid agreement in the first place. Gutta Percha Mfg. Co. v. Ogalalla, 42 Am. St. Rep., 696; Tiedeman on Municipal Law, Sec. 170; Beach, Secs. 1161, 1162.
    Nor can it be validated by estoppel. Ultra vires contracts of a municipal corporation cannot be validated by estoppel. Young v. Board of Ed., 40 Am. St., 340; Nashville v. Sutherland & Co., 36 Am. St., 88; Haines on Modern Law of Municipal Securities, Sec. 24; The rule and reason are given in Syracuse Water Co. v. Syracuse, 5 L. R. A., 546; Cleveland v. Bank, 16 Ohio St., 236.
   Davis, J.

It is insisted by the counsel for the defendant in error that the ordinance.which was passed February 11, 1895, and accepted in writing by the plaintiff in error, is void because it contravenes sections 1691, 2478, 2479 and 2485 of the Revised Statutes; and that therefore the city council might lawfully enact the ordinance of September 18, 1900. If this were so -it would not follow that this latter ordinance is valid. The power conferred on the council of any city or village by sections 2478 and 2479 is the power to fix the maximum price at which the company may sell gas. This is the obvious meaning and intent of these sections when read together. It is true that section 2479 contains these words; “In case the council fixes the minimum price,” etc.; but it is clear from the preceding section that the purpose of the legislature was not to prevent a gas company from selling gas as low as it might, but to protect the public from the hardships of excessive charge, and therefore the council is authorized to fix the limit above which the gas company cannot go. We may apply here the rule of statutory construction that “when the real design of the legislature in ordaining a statute, although it be not precisely expressed, is yet plainly perceivable, or ascertained with reasonable certainty, the language of the statute must be given such a construction as will carry that design into effect, even though in so doing the exact letter of the law be sacrificed, or although the construction be, indeed, contrary to the latter.” Endlich on Statutes, section 295; Sutherland on Statutes, section 323. It is also provided that if the gas company assents to such limitation in writing it then becomes a binding obligation on both the city and the company for ten years and no more. This is the extent of the authority granted to the council, and no other or different power is either expressed or implied. When, therefore, the council undertakes, even in the absence of a prior ordinance, to compel the gas company without its consent to furnish gas in a manner and at a rate entirely at the option of the consumer, it not only transcends the power conferred by the legislature, but it also undertakes to seize private property without due process of law. The decree of the circuit court was, therefore, erroneous in granting a mandatory injunction against the plaintiff in error, in accordance with the prayer of the defendant in error, enforcing the ordinance of September 18, 1900, although the company had not only refused to assent thereto, but had utterly repudiated it and challenged the right of council to enact it.

But is it a just contention that the original ordinance, that of February 11, 1895, which was assented to by the company, is invalid? We think that it is not. It is argued that this ordinance is within the inhibition of section 1691 of the Revised Statutes, which provides that “the council shall not enter into any contract which is not to go into full operation during the term for which all the members of such council are elected.” The context, Revised Statutes, section 1690, shows that the contracts referred to in section 1691 are contracts for “services performed, and supplies furnished for the corporation.” It is also apparent that in regard to contracts with gas companies, or rather ordinances regulating the price of gas, it is “otherwise provided in other divisions of this title,” namely, in Revised Statutes, section 2479. This objection to the ordinance may, therefore, be dismissed without further consideration.

It is also urged with great earnestness that section 2 of the ordinance of February 11, 1895, violates Revised Statutes, section 2479, because it provides “That said company, its successors and assigns, shall for a period of ten years from the first day of September, 1895, be entitled to charge,” etc. It is argued that inasmuch as the ordinance was passed February 11, 1895, and by its own terms was in force and took effect from and after its passage and legal promulgation, the provision of section 2 of the ordinance was in effect a fixing of the price of gas for a period exceeding, ten years, and therefore ultra vires. This argument proceeds upon the assumption that the period of ten years must begin to run on the date at which the ordinance was passed and went into effect. Upon this premise it is contended that the price of gas is fixed by that ordinance for a period beginning on February 11, 1895, and extending to ten years from September 1, 1895, and hence is invalid. But this assumption is not only opposed to the express language of the ordinance which provides for a period of ten years beginning on September 1,1895, and ending September 1, 1905; but it ignores settled rules of statutory construction, first, the legislative intent, as already shown, when it can be ascertained with reasonable certainty, must prevail, and, second, there is no legal objection to different provisions of the same statute taking effect at different times at the will of the legislature. Plummer v. J ones, 84 Me., 58; Stone v. Charlestown, 114 Mass., 214; Workman v. Worcester, 118 Mass., 168; Rushville v. Rushville Natural Gas Co., 132 Ind., 575; Sutherland on Statutes, section 107. It is the manifest intention of the council which passed this ordinance to fix the price of gas for the period of ten years only, beginning on September 1, 1895, and since the council might legally prescribe that section 2 should take effect at a later date than the passage of the ordinance, we find no just reason for holding that such section is in any manner in conflict with Revised Statutes, section 2479.

It is also urged that the ordinance of February 1J, 1895, is invalid because it does not reserve the right to purchase the gas plant and its appurtenances during the existence of the contract, as required by Revised Statutes, section 2485. When we take into consideration the history of this, section and its language, it seems to us very clear that it applies only to the purchase of gas works, for the manufacture and supply of artificial gas. It was enacted long before natural gas became an article of commerce and included only gas works for the manufacture and supply of such gas as was then used for illuminating purposes. It has not been amended and it therefore cannot.be presumed that the legislative intention has been enlarged. Counsel for the defendant in error seem to think it difficult to explain why the section of the Revised Statutes now under consideration does not apply to natural gas contracts while it is insisted Revised Statutes, section 2479, does so apply. The explanation is that section 2479 is plainly a limitation on the general power conferred in section 2478, which has been amended so as to expressly include natural gas companies.

It has been suggested by counsel for the defendant in error that if section 2 of the ordinance of February 11, 1895, is valid at all, it is only valid in respect to meter rates and that it did not exhaust the power of the council, under section 2478, to fix “flat rates” or non-meter rates. This theory ignores the fact that the power of the council is to regulate the price only of gas furnished and that when that has been done according to one standard, and accepted, it cannot be altered without the consent of the company within ten years by fixing another standard which may affect the limit of price previously fixed.

The conclusion, therefore, is that the ordinance of February 11, 1895, is valid and that the ordinance of September 18, 1900, is invalid, unless accepted in writing by the company.

The judgment of the circuit court will, therefore, be reversed, and speaking for myself only I think that, logically, we should stop there; but an order will be made that the plaintiff in error shall have the option to accept or reject the ordinance passed September 18, 1900, and if it elects to furnish gas at “flat rates” it must do so according to tbe provisions, of tbe ordinance of September 18, 1.900, and that the company be enjoined from hereafter exacting contracts for “flat-rates” from consumers of gas, or enforcing such contracts hereafter made, except in accordance with the ordinance of September 18, 1900.

Reversed.

Burket, Spear and Shauck, JJ., concur.

Minshall, C. J., not sitting.


text:
    The City of Newark v. The Newark Natural Gas & Fuel Co.
    Tbe syllabus in tbe immediate preceding case answers also for tbis case. — Reporter.
    (Decided November 19, 1901.)
    Error to the Circuit Court of Licking county.
    . P. B. Smythe, City Solicitor, Samuel M. Hunter, and Kibler & Kibler, for plaintiff in error.

      J. R. Fitzgibbon; John G. Reeves and M. A. Daugherty, for defendants in error.
   Davis, J.

The same questions are involved and argued in this case as in The Logan Natural Gas & Fuel Co. v. Chillicothe, ante, p. 186, except the question as to the period of time embraced in the ordinances. The essential facts' in the two cases are the same, except that in this case the circuit court, overruling the common pleas court, found for the defendant, The Newark Natural Gas & Fuel Company, and dismissed the petition of the city.

Affirmed.

Williams, Burket, Spear and Shauck, JJ., concur.

Minshall, C. J., not sitting.