author: Price, J. Davis, J.,

text:
    The Lake Shore & Michigan Southern Railway Co. v. The City of Elyria.

      Action by solicitor of city—To compel by mmda-tory injunction— Railroad, company to remove abutments from street—Section-5114 Revised Statutes—Petition may be amended, when—Name-of plaintiff may be changed—Railroad company waives rights as-to change, when—Contract between city and railroad company as-to overhead crossing of streets—Requirement of council’s authority—General legislation insuMcient, when—Section 3283, Revised Statutes, not authority to city, when—Law of right of way— Municipal corporations—Injunction.

    1. In an action brought by the solicitor of a city or village in his. own name as such, and also as a taxpayer, but in behalf of the corporation, to compel by mandatory injunction, a railroad company, to remove from a public street its abutments. placed therein to support an overhead crossing of its railroad, the court, under favor of section 5114, Revised Statutes, in furtherance of justice and upon proper terms, may amend the petition by striking from the title of the cause the name of the solicitor and taxpayer, and adding in lieu thereof file-name of the city or village as plaintiff and the real party in interest, in which name the action may proceed against thé defendant; and in like manner, and for like purpose the court may amend the body of the petition by striking therefrom, the name of the solicitor and taxpayer and other words describing his relation to the cause of action.
    2. By appealing from a final decree made on the issues subsequently joined between the parties, the railway company waived its right t<^ complain of such amendments on hearing of the cause on the appeal.
    3. Where a railroad company, for the purpose of supporting its overhead crossing of a public city or village street, erects and maintains abutments which occupy a portion of the street, excluding the public therefrom, and' claims the right to do so under a contract made with the municipal council, it must appear that the council was authorized by statute in express terms, or by clear implication therefrom 'to make such contract; and mere general legislation authorizing a railroad company to occupy a street for the purposes of its road, is insufficient for such permanent and exclusive use. Ravenna v. The Pennsylvania Co., 45 Ohio St., 118, approved and followed.
    4. .Section 3283, Revised Statutes, does not authorize a city or village council to agree with a railroad company for the permanent and exclusive occupation of a public street with abutments to support an overhead crossing of the railroad; nor can such occupation be rightly gained by means of appropriation; and if the company so occupying the street refuses to restore it to its former condition of usefulness to the public, it may be compelled to do so by mandatory injunction, without a right to compensation for the expense of removal.
    (No. 8082
    Decided January 19, 1904.)
    Error to the Circuit Court of Lorain county.
    The action as originally instituted against the plaintiff in error, was brought in the name of “Frank M. Stevens, as city solicitor, and as a taxpayer on behalf of the City of Elyria,” and the petition alleged that “he is a taxpayer and that he brings this action both as solicitor for said city and as a taxpayer in behalf of said city.”
    The petition thus styled, complained that the railway company owned, operated and controlled, for the fifteen years last past, a certain railroad extending through the city of Elyria, crossing Huron, West Bridge and West River streets at their intersection, and that the ground at this intersection, long prior to the organization of the railway company, was established as a county road sixty-six (66) feet in width, which by annexation proceedings has become a street of the city; and that prior to February 24, 1890, the company had maintained its tracks at this point at grade with the street, leaving the highway unobstructed to its full width; that on or about February 24, 1890, the railway company changed its crossing from a grade to an overhead crossing, and that in so doing, it placed high abutments, on which to rest its tracks, 'within said street on both sides thereof, thereby narrowing the highway twenty-six feet, wholly depriving the public of the use of that part of the same. A sidewalk six feet wide was constructed on one side of the remainder of the street, so that the driveway, not occupied by the two abutments and said sidewalk, is only thirty-four feet wide.
    The petition further charges that the acts complained of makes the street or highway at West River street, narrow, dangerous and grossly inadequate for the use of the public, and render the same dangerous to both life and property, owing to the increase of population of the city and vicinity, and that the public needs the full and unobstructed width of the street.
    It is alleged that any contract between the authorities of the municipality and railway company by virtue of which said abutments were placed in the street, is illegal and in excess of the powers vested in the council of the city, and that it has repudiated and does now repudiate such contract, and any arrange-meat which may have been formerly made for that purpose; and that the city, before this action was commenced, repeatedly demanded that the railway company remove the abutments from the street, which it has refused to do.
    The prayer is for a decree, declaring void any contract by which the company claims the right to so occupy the street, and for an order that the abutments be removed.
    The railway company filed an answer to the petition, and denied that it illegally occupied the street with said abutments, and asserted that its acts with reference thereto were duly authorized. It also denied that the public needs the full width of the street at the point of crossing. After the issue was thus made up, the plaintiff asked and obtained leave to amend the petition, by striking from the name of the plaintiff the words, “Frank M. Stevens, as city solicitor of the city of Elyria, and as a taxpayer on behalf of,” leaving the words “The City of Elyria,” as; the name of the plaintiff. The motion also asked leave to strike from the body of the petition all words showing the relation of the solicitor and taxpayer, as such, to^ the cause of action, eliminating them in name and averment from the case.
    The company resisted the motion but it was allowed, and the company excepted. It also moved to strike the petition from the files, because of erasures and interlineations. This motion was overruled and a bill of exceptions taken.
    The petition was rewritten as an amended petition, reforming it as to the title of the action and to otherwise conform to the changes permitted by the court. The action proceeded thenceforth in the name of “The Oity of Elyria” as plaintiff. The defendant answered the petition as reformed, preserving the original title of the case. On motion this answer was stricken from the files for that reason, and the company excepted. Subsequently, the defendant filed an amendment to the former answer, under the new title as to the plaintiff and afterwards filed a second amended answer, wherein it protests that the court had lost jurisdiction over it because of the substitution of The Oity of Elyria as plaintiff, and that the petition is insufficient to require an answer. It does not deny that the driveway between the abutments is but thirty-four (34)' feet in Avidth. The necessity for a greater width is denied, as well as all other allegations as to the present dangerous character of the same.
    The answer proceeds to set out that prior to the acts complained of it exercised the rights conferred upon it by section 3277, Eevised Statutes, in order to improve its road from Sandusky to Elyria and beyond, by taking out curves and reducing grades. In order to render the highway across its road at West Eiver street less dangerous and difficult to the public, the company determined to construct an overhead crossing, for which purpose abutments were erected in West Eiver street at points named in the petition, to support the railroad tracks; and to accomplish this change and in order to restore the street to its former condition of usefulness, the defendant, in February, 1890, entered into an agreement with the authorities of the city, whereby the manner, terms and conditions upon Avhich the company might use and occupy the street were agreed upon and that in pursuance thereof the abutments were placed where they now are.
    For a second defense, the two-year statute of limRations is plead. The allegations of new matter contained in the answer are denied- by a reply. On the issues thus framed, the cause was tried in the court of common pleas, and the prayer of the petition was granted.
    The defendant appealed from the decree to the circuit court, where, defendant renewed its motion to strike the amended petition from the files because of the substitution of “The City of Elyria,” as plaintiff in the common pleas court, and because of erasures and interlineations made in the petition by permission of that court. The motion was overruled, and the company excepted.
    The cause was heard in the circuit court on the evidence,' and on request the court found the facts, part of which are as above stated. The other material facts appear in the opinion.
    The court also found that the “abutments obstructed the public highway and wholly excluded the public and the plaintiff from the use and enjoyment of the parts of said highway occupied by said abutments, but that public necessities clo not require the removal of said east abutment at the present time.”

    The court held, as a matter of law, that the municipal authorities had no power to make the contract for placing the abutments within the street, and that so occupying the street is a public nuisance; and the court ordered that by a day certain, the company remove the west abutment, but declined to make such order as to the east abutment. Both parties prosecute error in this court.

      Mr. E. G. Johnson; Mr. M. B. Dichey and Mr. Geo. G. Greene, for plaintiff in error, cited and commented upon the following authorities:

      Knorr v. Miller, 11 Re., 165; 25 Bull., 128; Railroad Co. v. Smith, 29 Ohio St., 291; 1 Bates’ Pl., p. 3, par. 8; Dubbers v. Goux, 51 Cal., 153; Railway v. Village of Carthage, 9 Circ. Dec., 833; 8 R., 216; Goodin v. Canal Co., 18 Ohio St., 169; Pennsylvania Ry. Co. v. Platt, 47 Ohio St., 366; Lane v. Kennedy 13 Ohio St., 42; Elster v. Springfield, 49 Ohio St., 82; Cincinnati v. Evans, 5 Ohio St., 594; Bank v. Chillicothe, 7 Ohio (pt 2), 31; Larwell v. Savings Fund Soc., 40 Ohio St., 274; Cleveland v. Railway, 12 O. F. D., 459; 93 Fed. Rep., 113; Cincinnati v. Bridge Co., 10 Circ. Dec., 792; 20 R., 396; Dyer v. Railway, 4 Circ. Dec., 584; 7 R., 255; Myers v. Toledo, 9 Circ. Dec., 676; 18 R., 817(affirmed 57 Ohio St., 634); Village of Fulton v. Mehrenfeld, 8 Ohio St., 440; Elliott on Roads and Streets, sec. 443; Act of March 14, 1831 (Swan’s Statutes, ed. 1841, p. 796); Burrows v. Vandevier, 3 Ohio, 383; Act of February 26, 1824 (2 Chase, 1393); Hays v. Lewis, 28 Ohio St., 326; Act of March, 1868 (S. & S., 673); Dillenbach v. Xenia, 41 Ohio St., 207; 6 Thompson on Corp., sec. 7406; State ex rel. v. Railway, 37 Ohio St., 157; Railroad Co. v. Defiance, 52 Ohio St., 262; Me-grue v. Commissioners, 8 Circ. Dec., 262; 15 R., 242; City of Steubenville v. McGill, 41 Ohio St., 235; Railway Co. v. Commissioners, 31 Ohio St., 338; Railway Co. v. Hood, 13 O. F. D., 27; Brower v. Hunt, 18 Ohio St., 311; Ludlow v. Johnston, 3 Ohio, 533; Pancoast v. Ruffin, 1 Ohio, 381; Beaver v. Blind Asylum, 19 Ohio St., 97; Brunner v. Briggs, 39 Ohio St., 478; Bridge Co. v. Bowman, 41 Ohio St., 37; Hunter v. Commissioners, 10 Ohio St., 515; Railway Co. v. Village of Carthage, 36 Ohio St., 631; 1 Rorer on Railroads, 497; Elliott on Roads and Streets (2 ed.), Secs. 9, 421, 423; Redfield v. Utica, 25 Barb., 54; Dillon on Mun. Corp., secs. 71, 656, 657; Tiedeman on Mnn. Corp., secs. 301, 302; Abbott’s Law Dic.; Anderson’s Law Dic.; secs. 1777, 1778, 2232, 2640, 3270, 3277, 3278, 3281, 3283, 3284, 4972, 6414, 6448, 6453, Rev. Stat.

      Mr. F. W. Stevens and Mr. W. W. Boynton, for defendant in error, cited and commented upon the fol lowing authorities:

      Hunter v. Commissioners, 10 Ohio St., 515; Culver v. Rodgers, 33 Ohio St., 537; Potter v. Bunnell, 20 Ohio St., 150; Kershaw v. Snowden, 36 Ohio St., 181; Railway Co. v. Defiance, 52 Ohio St., 262; Railway Co. v. Defiance, 10 O. F. D., 480; 167 U. S., 97; Zanesville v. Fannan, 53 Ohio St., 605; Cincinnati v. Pruden, 55 Ohio St., 655; 36 Bull., 224; Branahan v. Hotel Co., 39 Ohio St., 333; Railway Co. v. Commissioners, 31 Ohio St., 338; Railway v. City of Buffalo, 53 N. E. Rep. 44; State v. Railway Co., 36 Ohio St., 434; Heddleston v. Hendricks, 52 Ohio St., 460; Driggs v. Phillips, 103 N. Y., 77; secs. 2640, 3283, 3284, 6921, Rev. Stat.
   Price, J.

Preliminary to a consideration of the main controversy, we are requested and strongly urged by counsel for plaintiff in error to pass on a question of practice that arose in both the lower courts. It .relates to the change in the title of the cause which was permitted by the Court of Common Pleas, whereby the words “Frank M. Stevens, as city solicitor of the city of Elyria, and as a taxpayer of,” were stricken from the style of the case, leaving the words, “The City of Elyria” as the name of the plaintiff in the case. It is claimed that granting such change was in violation of section 4972, Revised Statutes, providing, “ * * * and the title of a cause shall not be changed in any of its stages, except when the defendant prosecutes error.” The plaintiff in error objected to the striking out of the above words and excepted to the overruling of its objection. The same question further appears in a motion to strike off the petition because of such change, on the alleged ground that the Court no longer had jurisdiction over the defendant in the case.

It is well to note that there are other sections of the statute which closely bear on this point, which must be looked to for a proper determination of the question made. Section 4993 requires that an action must be prosecuted in the name of the real party in interest, and section 5114 provides most liberally for amendments of pleadings. Under its authority the “Court may * * * amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case * * *.” The Court is authorized to prescribe the terms on which the amendment may be made. It is quite true that it is not within the right or power of a party to the suit to change the title of a cause of action in any of its stages, except where he is a defendant and prosecutes error. But when the power of the Court is in-' voked under section 5114, we find that a name of a party may be added or stricken out; and, if that can be done by the Court, it may do both in one order— that is, strike out the name of a party and add or substitute the name of another.

This case presents a very fair illustration of the proper exercise of such authority. While the suit was instituted with the title of “Frank M. Stevens, as city solicitor of the city of Elyria, and as a taxpayer,” it was so instituted on behalf of the city of Elyria as the real party in interest, and an inspection of the original petition shows that the facts alleged are facts in which the city alone is interested, as a trustee of the public. The relief sought is relief in the interest of the city. Stevens, as solicitor and taxpayer, sought no personal relief, and it is doubtful whether, in fact, there has been any material change in the title of the cause of action. The city of Elyria appeared in the title as the real party in interest, and it so appeared in the averments of the petition. The cause of action was not changed, and all its substance remained after the so-called substitution, except the elimination therefrom of such words as the name of the solicitor and taxpayer where they occurred, and averments connecting them with the cause of action. The case was finally tried on the same cause of action, stripped of the unnecessary incumbrance first thrown around th-

in such case, we have no doubt, a Court may amend .the pleading by substituting the name of the real party in interest and striking out the name of an unnecessary party, and one who has no interest in the controversy. The cause of action still remains against the defendant and the Court could not lose jurisdiction over the party in doing what it plainly had authority to do in this case.

There is another and conclusive answer to the claim of plaintiff in error in this court. The defendant, as a matter of course, was required to answer the petition as amended, with an answer bearing the same title. It objected to this, but complied with the order of the Court.

The issues were made up between the parties under the new title, and .under such title the decree of the Court was made from which, the defendant appealed to the Circuit Court The appeal did not reach hack to the rulings of the Court in reforming the petition, as might be the case on a demurrer filed and ruled on, but the appeal was from the decree made on the issues as joined.

If the plaintiff in error had desired to review the questions of change of title and the kindred changes made in the petition, the remedy was error and not appeal. It excepted to the rulings of the Court, but abandoned them, at least for the time being, in selecting a remedy by appeal. Therefore, such questions did not pass up with the appeal to the Circuit Court for its judgment, and are, therefore, not before us in this proceeding. The same remark may be made to the erasures and interlineations made in the petition which are complained of. The Court permitted them to be made. It seems they were not serious enough to prevent the Court and counsel from understanding them, and a fairly good petition has survived and found its way from the lower courts to this court, as appears in the printed record. Thus far, the plaintiff in error has no ground for reversal.

We now reach the more serious and substantial controversy. Both parties to this proceeding are here complaining of the decree of the Court and asking for reversal; one of the command to remove the west abutment, and the other praying for a reversal of that portion of the decree in which the Court declined to order the removal of the east abutment.

The claims of each party rest upon the same facts and must be adjudicated under the same rules of law. These respective claims stand or fall as the question may be answered: Had the council of the village of Elyria the power to contract with the railway company for the permanent occupancy of portions of the street with the abutments to support its tracks as an overhead crossing?

The Circuit Court has found that the portion of West River street where these abutments stand once formed a part of an established county road sixty-six feet in width, and that it was laid out, opened and used by the public as such; and, further, that long prior to the erection of the abutments and the making of the alleged contract under which the railway company erected them, that portion of the county road was taken into the village of Elyria by proper proceedings of annexation, and thereafter continued to' be a street of the same width. The public, therefore,, had the right to use the same to its full width free from obstructions, and it was' so used until the committing of the acts complained of, in the year 1890.

It is well to know the precise nature of the contract relied upon by the railway company, and also what was done thereunder by the parties. To conform with a general improvement and betterment of its roadbed, and eliminate difficult and dangerous grades and curves, on a portion of its line, it seemed to be necessary to raise the grade at West river street and other points, and it was done. But this made the crossing of the street more difficult and dangerous to> the traveling public. An overhead crossing was de-= termined upon by the railway company,' and it applied to the village authorities for permission to make that kind of crossing, and submitted to them plans and profiles for the purpose, which embraced, the placing of the east and west abutments for the support of the track within' the street. Action was taken upon these plans by the village council, and a resolution was adopted in February, 1890, of which the following in part is a copy:

“Be it resolved by the council■ of the village of ■Myria, Ohio, That the proposed changes in the grade and construction of the streets of said village, at their intersection with the Lake Shore & Michigan Southern Railway track and the Cleveland, Lorain & Wheeling tracks, shown on the plans and profiles above referred to in the preamble, are approved as proper restorations of said streets to their former usefulness, with the folloAving modifications,” etc.

One of the modifications made was a change from thirteen and one-half feet to fourteen feet in the height of the crossing above the street at West River street This, with other modifications, was accepted by the railway company and became the contract upon Avhich the plaintiff in error relies. The language of the resolution must not be overlooked, where it is said that the proposed changes in the grade as shown on the plans and profiles, etc., “are approved as proper restorations of said streets to their former usefulness * * The defendant in its amended answer avers: “That in order to properly make such change of location and grade, and to construct such under crossing, and to put such street in such, condition as not to impair its former usefulness, it became and was necessary in the location of that part of the defendant’s railroad to use and occupy a part of such street, and being the same part now occupied by the abutments of said defendant company,” etc. It is alleged that for this purpose the contract above set out was entered into.

From this averment of the answer and the language of the resolution, it is very clear that both parties, the village council and the railway company acted with some deliberation. The sections of the statute under which the council acted must have been examined and the extent of its powers considered, and the company recognized its obligation to restore the street to its former state of usefulness, and the council in, the resolution adopted, was of the opinion that, if the changes were made as proposed, there would be a restoration of the street to its former condition of usefulness. This was the opinion of that council on the then existing conditions, such as the extent of the population and business of the village and the general public of Avhich it . formed a part. But did it become binding for all time, no matter what the increase of population, business and public travel might be in after .years? The answer admits that there has been, a growth of the village into a city and a large increase ■of population in the section of the city where this ■crossing is situate; and it would seem difficult to maintain the proposition that the opinion of the coun•cil in the year 1890 should bind the public perpetually, although the public should need the free and unobstructed street to its full width. When the city annexed the territory which embraced the county road, the title in fee to such part of the county road, vested in the city in trust for the public. Such is the title of a village or city to a street, and the statute commands. the council to keep it open, in repair, and free from nuisance. See section 2640, Revised Statutes.

But the plaintiff in error plants its right to remain in the street upon one or more sections of Revised Statutes, which it is said fully authorized the council to make the contract in question.

In its answer, it is alleged, that its line of road between Sandusky and Elyria was difficult and dangerous, on account of grades and. curves, and that it became necessary in order to avoid annoyance to the public and the difficult and dangerous grades to raise the grade; that, in exercise of rights conferred upon it by section 3277, Revised Statutes, it raised its grade-at West River street and other points on its line at great expensa This section empowers a railway company to change the location or grade of any portion of its road “for the purpose of avoiding annoyance to public travel, or dangerous or difficult curves or-grades, or unsafe or unsubstantial grounds or foundation, or when the roadbed has been injured or destroyed by the current of any river, watercourse, or-other unavoidable cause, * * * but shall not depart from the general route prescribed in the articles, of incorporation.” This section, just as it says, confers power to curé curves and grades along its line, or-obtain more secure and substantial foundations for its. roadbed within the general course of the line, but. makes no provision for the crossing of a street within a municipal corporation. The next section (3278) provides for appropriation of land needed in order to-make the above necessary changes. It is not claimed by counsel for plaintiff in error that the above section enables a municipality to contract with a railroad company for the use of a street, because it plainly relates to a roadbed at other points on its line, where no municipal grant is required. On the contrary, it is-thought that vital power is conferred on the council by section 3283, Revised Statutes, and that under its-provisions the contract relied on is valid and enforceable

The language of this section is in part: “If it be necessary, in the location of any part of a railroad, to occupy any public road, street, alley, way, or ground of any kind, or any part thereof, the municipal or-other corporation, or public officers or authorities, owning or having charge thereof, and the company, may agree upon the manner, terms, and conditions upon which the same may be used or occupied; and if the parties be unable to agree thereon, and it be necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way, or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals * * It is upon this section the railway company now most confidently relies as the authority for the contract made with the council. Does it authorize the council to grant to a railway company the exclusive and permanent right to occupy a public street or part of it at a crossing or elsewhere? Or does it merely authorize a joint occupancy? We have no doubt that the General Assembly, representing the sovereignty of the State, may empower municipal councils to make the larger grant and confer the exclusive use, but has it done so by the foregoing legislation? We think not.

To establish, lay out and open up a "county road or a public street, the statutes have made clear and distinct provisions, and when the road or street is no longer of public use or utility, provisions equally clear and distinct are made for their vacation, of all which public records are made, and we find nowhere any other method of vacating such public highway or any part of it.

By the proper establishment and opening of the street, the village or city becomes vested with the full title thereto, in trust for the public, and it is not within the delegated powers of the municipal council to barter or grant away such title except in the mode provided for the purpose. In the liberality of our laws, and in proper recognition of the necessities and benefits of railroad enterprises, a joint use is permitted, and the railway company, in a manner, and upon such terms and conditions as it and the council may agree, may occupy a road, street, alley, way, etc. But its occupancy must not extinguish the prior title and use and permanently exclude the public. It cannot destroy the dominant right of the public. To authorize the council, the municipal authorities, to grant more than a joint occupancy, requires clear and express language in the statute to that effect, and which we do not find in the section. The right to “occupy,” where there is a prior existing use or easement, does not mean that the first or existing use or easement is ousted and the “occupancy” of the railroad exclusive. This view becomes clear when we examine the clause, which provides that where the council and the company cannot agree upon manner and terms of occupany it may appropriate so much of the streets, or alley, etc., as “may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals * *

If this company and the council had been unable to agree and the former had resorted to appropriation, what would it have obtained by the proceeding? A title in fee in portions of the street desired, or a perpetual easement therein to the exclusion of the public? Certainly not. It would have obtained a right in common with the public to occupy the street or part of it. The appropriation would have been made “in the manner and upon the same terms as provided” for cases of individuals, which means the method of procedure and terms of compensation. It does not undertake to measure the title which the company may acquire. To go beyond a joint occupancy or use of the street, the statute must speak in clear and unmistakable language. There can be no authority in such cases by implication, unless it is unmistakable. This Court has held the substance of this doctrine on more than one occasion. It will be sufficient to notice but a few of such cases.

In Railroad Company v. The Commissioners of Greene County, 31 Ohio St., 338, the following was held as part of the syllabus:

“Power given by a charter of a railroad company to> construct its road across a public highway upon condition that the same be restored to its former state,' ‘or in a sufficient manner not to impair its usefulness,’ does not authorize the company permanently to appropriate any portion of the public highway by obstructions, .which may materially interfere with 'the public travel.”

In the opinion of the Court on page 347, it is said: “But it was never intended to invest the company, without the burden of compensation, Avith the right to narrow the width of the highway or materially to interfere with its facilities for public travel; much less with the right to incumber the same, as was done here, with abutments and embankments which effectually exclude the public from -the use and enjoyment of the greater part of it. * * * The fact that the public travel over the road may, for the time being, be limited, does not lessen the duty to restore. Eoads and highways are established to subserve the future needs of the public as well as the present.”

The Court further held in that case that the statute uf limitations did not run in favor of such encroachments upon the public highway.

In Railroad Co. v. Defiance, 52 Ohio St., 262, there is an extended discussion of the question before us. Counsel for plaintiff in error labors in vain to show the irrelevancy of that case. There, the plaintiff in error, in large degree, stood on the provisions of section 3283, as is done here. For the sake of brevity, we omit a quotation of sections 5, 6, and 7 of the syllabus, which are very clearly in point We note the language of Williams, J., on page 309: “The statute, we think, does not contemplate the destruction of the street, or the cessation of its use by the public, or its withdrawal from the control and supervision of the proper municipal officers; nor is authority found in it for any agreement having such results. On the contrary, the statute recognizes the street so burdened with a railroad as a ‘public street,’ with all that term imports.”

That case was taken on error to the Supreme Court of the United States, where the judgment of this court was affirmed. See Wabash Railroad Co. v. Defiance, 10. O. F. D., 480; 167 U. S., 88. In the course of the opinion in that case, Justice Brown, speaking of another case, on page- 97, says: “If the Court, however, is considered as holding that an agreement or license to construct bridges, which is silent as to time, should be construed as an agreement that they are to remain in perpetuity, we should find ourselves confronted with too many authorities to the contrary, to accept it as a sound exposition of the law. Indeed, the general principle that the legislative power of a city may control and improve its streets, and that such power, when duly exercised by ordinances, will override any license previously given by which the control of a certain street has been surrendered to any individual or corporation, is so well established both by the cases in this court and in the courts of the several States, that a reference to the leading authorities upon the subject is sufficient. Indeed, the right of a city to improve its streets by regrading or otherwise is something so essential to its growth and prosperity that the common council can no more denude itself of that right than it can of its power to legislate for the health, safety and morals of its inhabitants.”

In Zanesville v. Fannan, 53 Ohio St., 605, our question was indirectly involved, and section 3283, Revised .Statutes, was again considered.

On page 614, Williams, J., laid down the following as its construction: ' “Any permanent obstruction or incumbrance in any street of a municipal corporation is made a nuisance by statute (section 6921, Revised Statutes), which the municipal authorities are invested with the power and charged with the •duty of removing. (Sections 1690, 1878, 1934 and 2640, Revised Statutes:) And those powers and duties continue when a railroad company has placed its tracks in a public street, whether they were so placed under permission granted by the municipality or under an appropriation for that purpose. In neither event are the municipal authorities divested of their powers, nor absolved from the performance of their duties. Nor does section 3283 contemplate that a railroad company in the use of a street for the purposes of its road under a right acquired in either of the modes provided, may destroy the same, or create nuisances therein. * * *” The doctrine here quoted is but the consensus of former opinions of this Court and of those of other jurisdictions. As illustrative of the law held in the latter, we think it sufficient to refer to the leading case of Delaware, L. & W. R. R. Co. v. The City of Buffalo, decided in 1899 by the Court of Appeals in New York, found in 158 N. Y., 266. That Court had the precise question we are deciding. The railroad company constructed its railway across Main street in the city of Buffalo. The structure rested upon abutments and piers, all placed in the street, Avhich at that point was ninety feet wide. The company was afterwards warned to remove them, but, refusing to do so, claimed legislative and municipal authority for placing the structures in the street. It seems that the laws of New York authorize railroad companies to construct their roads across, along, or upon any street or highway with the assent of the municipal authorities. That is about all that can be claimed for section 3283.

In that case the Court of Appeals expressed the folloAving principles in the syllabus:

“2. When a railroad company relies upon a legislative act as a justification for the occupation of a public highway with its piers and abutments it must show that the statute authorized in express terms or by clear and unquestionable implication the doing of the very acts complained of, or, that the statute was imperative and could not be Executed without causing a nuisance.
“3. Mere general legislative authority to a railroad company to cross a city street with the consent of the local authorities gives it no right to occupy a large portion of the street with abutments and piers for the support of its structure, to the great inconvenience and detriment of the public.
“4: Municipal authorities, in the exercise of the power to permit railroads to cross streets, are not authorized to surrender to the railroad the exclusive use of a considerable portion of the street for the erection and maintenance of abutments and piers to sustain an elevated structure.”

All the judges sitting concurred in the decision. On a rehearing granted,, the case was again fully heard and considered as seen on page 478' of same volume of reports. The former judgment was adhered to by a unanimous court.

Further citation of authorities, we think, is not necessary. Whether section 3283, or section 3284 is depended upon by the railway company in this case, the results are the same. Under neither has there been a restoration to the former condition of usefulness contemplated by law, nor can there be with the abutments which occupy twenty-six feet of the width of the street. Under neither section has a municipal council the poAver to permit, or grant to a raihvay company the exclusive and permanent occupation of a public street. To confer such power, the legislation must be express and clear to that effect, as held in Ravenna v. Pennsylvania Co., 45 Ohio St., 118.

Looking to the various sections bearing upon the subject of the present litigation—sections 2640, 3283, 3284 and 6921, we must construe them so as to give to each its intended operation. They are equally venerable as a part of our statute law, and we think our views will permit each to be enforced with fairness to all parties concerned, the public, the individual and the corporations.

As to the plea of the statute of limitations made in the answer it is sufficient to say that it is the well settled, law of this State that encroachments upon a public highway never ripen into a title by adverse possession, nor is such title plead in this ease.

There is one more contention made by plaintiff in the reply brief. It is urged that to compel a removal of these abutments which, with the overhead structure cost the railway company ten thousand dollars, will take its property without due process of law, and thus violate a constitutional right The brief says, on page 16: “We insist that we have shown that we have property in the abutments on this street, and that due process of law requires that before they shall be taken from us the city must provide by resolution or ordinance for an improvement of this street, which would require the removal of these abutments, furnish notice of the same and give us an opportunity to present and maintain our claim for damages, and as nothing of the kind was done in the case at bar, we maintain that this mandatory injunction takes our property without due process of law * *

This position shows much fortitude, and is at least peculiar: It assumes that the grounds where the abutments stand had ceased to be a part of the public street to such an extent that to get rid of them the city must appropriate and pay compensation for their removal. We have seen that the railway company did not and could not lawfully get the right to place the abutments in the street, and that their presence tends to a permanent obstruction of the highway, without authority of law. The city is seeking to restore the street to its former condition of usefulness, which the company agreed but failed to do, and it is in no condition to invoke the rule for appropriation cases. It would be strange indeed, if the railway company has a right to compensation from the city for the removal of a nuisance in the street which, through wrong or mistake, was erected therein.

The Circuit Court declined to order the removal of the east abutment, saying in its finding that “present necessities of the public do not require it.” The city by cross-petition in error asks a reversal of that portion of the decree and a judgment in its favor. It is true that ths east abutment at its widest part is only about five feet in the street, but we are unable to see a legal distinction between it and the west abutment The controversy has been serious, and we think the door should be closed, so far as practicable, against further expensive litigation, and settle now all the questions litigated. On the facts and law we feel justified in so doing.

We therefore affirm the judgment of the Circuit Court .relating to the west abutment, and reverse it as to the east abutment, and order the removal of both by a day stated in the journal entry.

Judgment affirmed as to the west abutment, and reversed as to the east abutment, and as to it, judgment in favor of defendant in error on its cross-petition.

Burket, C. J., Spear, Shauck and Crew, JJ., concur.

Davis, J.,

concurs in first and second sections of the syllabus, and dissents from the third and fourth, and also the judgment


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    The Cleveland, Painesville & Eastern Railroad Co. v. Pritschau.

      Trial of issues of fact to jury—Duty of judge as to miscondtict of counsel toward witnesses—Permission of misconduct' by counsel is error, when—Misconduct of counsel cause for reversal of judgment—Unless . averted by retraction—Court procedure.

    1. Upon the trial of issues of fact to a j ury, it is the duty of the trial judge to prevent such misconduct on the part of counsel toward witnesses as tends to the suppression of the truth, all declarations .of fact by counsel during the introduction of evidence, the repetition of incompetent questions to which objections have been sustained, and all comments upon the evidence until the time for argument has arrived.
    2. The permission of such misconduct by counsel for the .prevailing party against objection by his adversary is error for which a judgment should be reversed, unless it affirmatively appears that, by instructions from the court, or retraction by counsel, or both, the prejudicial tendency of the misconduct has been averted. . ■
    (No. 8182
    Decided January 19, 1904.)
    Error to the Circuit Court of Cuyahoga county.
    Mrs. Pritschau brought suit in the court of common pleas against the railroad company to recover on .account of personal injuries which she sustained while a passenger on one of its cars, the injury resulting from collision with another car, alleged to be caused by the negligence of the company. Upon issues joined the cause was tried to a jury, the trial resulting in a verdict in her favor for $2,291. The company’s motion for a new trial was overruled, and a judgment was rendered in her favor which, on petition in error, was affirmed by the circuit court.. Her right to recover compensation for her injuries is not now disputed. The only question before us respects the amount of her recovery, which is alleged to be excessive, and a reversal is sought because of misconduct of her counsel upon the trial of the cause. The record is voluminous and many of its pages aré devoted to recounting interruptions by her counsel, protests by his adversary, and observations of the Court with respect thereto. A statement of all these instances would' unduly expand this report The grounds of complaint may be regarded as represented by a few of the-instances taken from the record.
    The record before us was made upon the second trial of the case. While counsel for the company was cross-examining the plaintiff herself, with respect to the extent of her injuries, he inquired of her whether she did not receive a caller in her parlor upon the evening of the day of her injury. She answered that she did not Whereupon her counsel interrupted by saying: “That was ail blown up before.” Counsel further inquired of her whether she sent for a physician upon the day of the accident, whereupon her counsel observed: “I object; you might as well ask her if she blew her nose.” In her further cross-examination with respect to her testimony upon ?the former trial, her counsel interrupted; whereupon the counsel for the company objected to the interruption, and the Court observed.: “It seems to disturb counsel on the other side, so counsel ought not to interfere.” Mr. Kerruish: “I am interfering in the interest of. economy of time and good sense.” Upon her further .cross-examination with respect to her occupation after the accident, she was inquired of whether she did not keep boarders during a portion of the time; and her counsel, upon re-examination, observed: “I want to clean these boarders out; wipe them out all. together. Well, we have exterminated the boarders.” Having admitted upon her cross-examination that she had walked about the village of her residence, she was inquired of by adversary counsel whether she limped upon those occasions. She answered: ‘-‘Why, I limped from being lame, of course; it makes a person limp.” Whereupon the following colloquy occurred: Mr. Kerruish—“I think there is a nigger in the fence about that thing myself.” Mr. Henry—“I object to that” Mr. • Kerruish—“She has been limping ever since. Now he wants to know whether she limped.”
    Another witness for the plaintiff, upon cross-examination was inquired of, whether, in view of his former relation he did not feel particularly kind toward the plaintiff. Whereupon her counsel interrupted: “Well, isn’t it creditable to her?” Upon the direct, examination of a witness for the plaintiff, her counsel propounded a question, assuming a state of facts here which no evidence tended to establish, and further assuming that the witness had knowledge thereof.. Adversary counsel objected and asked the Court to rebuke counsel for propounding a question of that character. Whereupon the Court said: “Well, I think I will administer the rebuke to counsel because you are assuming that this witness knows things;, there is no evidence as yet tending to show any such thing, and I think you are very much out of order.”' Mr. Kerruish: “Just a word on that point: Nobody knows better than I how to deport myself, but. inasmuch as this gentleman imputed to me an improper motive, I thought I might inquire of him the things; I know he knows.” Upon the cross-examination of another witness, who had been called on behalf of the defendant, inquiry was made respecting the professional standing of one of the physicians who had attended the plaintiff. Mr. Kerruish interrupted as follows: “Now, it is perfectly evident what kind of business they have been in down at Irondale, peeking; into things of that sort.”
    Upon the examination of a medical witness who had!, been called by the defendant, plaintiff’s counsel inquired of him why he had been selected to make ani examination to which he had testified. He answered: “Well, don’t ask me why he selected me, ask him.” Whereupon plaintiff’s counsel observed: “Well,. I know, and so does everybody else; I don’t care much,, I simply wanted you to acknowledge it, that is all.”' Upon the cross-examination of a very young lady, who-had been called as a witness by the defendant, plaintiff’s counsel saw fit to examine her upon the subject of her familiarity with the city of Cleveland. She-answered that she had been there about a month and. was sick during the entire time. Whereupon counsel interrupted: “I don’t care about your sickness; the-least said about that the better.” An objection by defendant’s counsel was sustained by the court and. plaintiff’s counsel interposed: “We will pass over the-sickness charitably. I put it upon . charitable-grounds.” Upon the cross-examination of another' physician who had been called by the defendant, plaintiff’s counsel inquired of him as to the mode of ascertaining differences in the lengths of injured limbs. Upon receiving the answer of the witness,, counsel interposed: “By gracious, that was done splendidly.” Upon objection the counsel further-said : “I thought it was complimentary to the- witness.” Upon the cross-examination of another witness, a woman, who had been called by the defendant, plaintiff’s counsel interrupted his own cross-examination to say: “Now, you are getting into tangles here of the worst kind.” Upon objection by counsel for the defendant, plaintiff’s counsel observed: “I guess your woman isn’t telling the truth and you know it.” Upon the cross-examination of another witness, respecting .a supposed conversation with another person, the witness said she had no recollection of it. Whereupon plaintiff’s counsel interrupted his own cross-examination to say: “I will have to fix the time and place ;and blow you up on that.” Upon the cross-examination of the same witness, he inquired of her as to her failure to recognize the plaintiff upon an occasion referred to, and then inquired whether it was in consequence of a failure of the witness’ observation or a change in the appearance of the plaintiff. The witness answered: “I think perhaps it was a little of both.” Counsel thereupon interrupted himself to ■say: “Now, that is sensible; I like your style first rate; that is nice.” Upon objection by adversary ■counsel, plaintiff’s counsel observed: “Won’t you let me compliment your witness when she is deserving of it?” Upon the examination of another witness called by the defendant, she was inquired of as to the origin •of a written statement which she had signed, the inquiry being whether it was written in her presence. Counsel for the plaintiff objected; and, upon the suggestion of his adversary, “it is in your favor,” he replied: “I don’t want any of her favors. I think, your Honor, that they should be reprimanded for bringing a witness like this into court. If it was two hundred years ago it would be punished.” Upon the ■cross-examination of another witness called by' the defendant, no evidence of any improper conduct on its part having appeared, counsel for the plaintiff inquired: “Well, do you know any of the crowd that have been trying to defeat this woman of her rights?” Upon the calling of Mr. F. A. Henry as a witness for the defendant, before any testimony had been- given by him, plaintiff’s counsel interrupted, to say: “I am willing to admit that Mr. Henry will , swear to anything that is necessary here.”
    In response to objections to the numerous interruptions and improprieties of counsel for the plaintiff, of which a few are embraced in the foregoing statement, the Court made many observations whose nature and effect are indicated by the following selections. Upon being called upon by counsel for the defendant, to sustain an objection to an improper question, and to require counsel to desist from an improper course •of examination, the Court said: “Oh, I think I have done all I can do; I sustain the objection.” Again, “I think counsel is in fault in indulging in too many statements, a habit that counsel has got into in thirty years of practice, to interject in your arguments for the purpose of getting advantage with the jury. You are not conscious of it, but others notice it, and I notice it, and it is that the other side object to.” “That was wholly out of order, Mr. Kerruish, it is not prompted by any desire to gain advantage but by force of inveterate habit.” Mr. Kerruish: “I think it is a good habit” Court: “No, I think it is a bad habit.” “The jury will disregard the statements of counsel as to whether the witness is telling the truth or not. I think we ought to have no interruptions and no comments at all.” “Well, it doesn’t seem to have any effect; I have endeavored to rebuke counsel several times.” “I have repeatedly admonished counsel, but it don’t avail very much against the habits of forty years.” “I have said a great many times there ought not to be any interference at all; the only thing to do is to object if you do object.” Another time, when called upon to admonish counsel, the Court said: “I have done' that so much, I am getting tired of doing the same thing over and over again. Now repeat the question.” Upon a similar request the Court said: “I do' not think I will do that; I have done that so muph. that I am getting tired of it”

      Messrs. Ford, Snyder, Henry & McGraw, for plaintiff in error.

      Mr. W. S. Kerruish, for defendant in error.
   Shauck, J.

The record before us contains the solemn assurance that the repeated and. prolonged scenes, of disorder which it describes, occurred upon “the trial of this cause.” Adopting the euphemism, the trial was made to last through more than two weeks,, obviously to the waste of most of the time so employed, and to the great discredit of the administration of justice. But these evils are accomplished and irremediable; and we have only to determine whether the law requires the plaintiff in error to submit to a result so reached. The determination of that question will not only justify, but require, some observations which might seem too obvious to be entitled to a place in a treatise on the conduct of trials. It is the requirement of the law that issues of fact, in so far as: they depend on oral testimony, shall be determined upon the testimony of witnesses who speak under the obligations of an oath, and who are subject to cross-examination. It is also required by established general rules, to which the issues of this case present no exceptions, that statements of fact, to influence the verdicts of juries, must be from the personal knowledge of the witnesses, and that mere hearsay and inference must be excluded. All of .these requirements were disregarded in numerous instances presented, by the record. On the trial, counsel for the prevailing party, during that portion of the trial which, in orderly inquiry, is devoted to the introduction, of evidence, made statements purporting to present facts, some of the statements being in corroboration of the testimony of witnesses, some of them being of matters, which were not otherwise suggested in the case. The instances in which statements of facts were followed by questions, not for the purpose of eliciting such facts as were in the knowledge of the witnesses, but to mislead the jury as to the facts in evidence, are subject to the same criticism.

The order of trial' prescribed by section 5190, Re -vised Statutes, does not differ in any respect, which is here material, from that which had been pursued before the enactment of the statute. But since the general assembly has thought the order of sufficient importance to be a proper subject for legislation, there is added reason for adhering to the order which it prescribes. The section definitely provides that counsel shall not be heard in argument until all the evidence has been introduced. Manifest disregard of this order of trial appears in some of the comments of counsel which were made during the introduction of evidence, and which are presented in the statement of the case, and in many others which are not included in the statement. Not only were these comments untimely, but some of them were of such character that they should not have been permitted at any time. Certainly there is, and must be, much latitude allowed to counsel in argument when the time for argument has arrived; but the ridiculing of uneducated witnesses-because of their ungrammatical speech, and the offering of insults to others without cause afforded in the case, should be forbidden as tending to the suppression of the truth. The repetition of incompetent inquiries, to which, objection had been sustained, was-for the obvious purpose of eliciting a repetition of the' objection and to prejudice the case in the estimation of the jury.- It should need no comment to show that the purpose which prompted such conduct called for' its complete and immediate suppression.

It is suggested that the conduct of counsel was so-grossly violative of propriety and decorum that it. probably had the effect to offend the jury and to-secure for his client a smaller verdict than would! otherwise have been returned. That suggestion! should not be permitted to control our judgment. If it be assumed that the orderly administration of justice is not to be insisted upon, and that the truth may,., by accident, be evolved from such scenes as were here-enacted, it is sufficient that the misconduct of counsel was, in its natural effect, prejudicial to the rights of the plaintiff in error, and it does not appear from the-record that it did not, in fact, result in such prejudice. An examination of the cases cited, and others,, justifies the conclusion that for such misconduct, and-even for that which is less flagrant, judgments are* always reversed, unless it is made to appear' that its' natural effect has been averted by court or counsel, or both. It is due to differences in the character of the misconduct rather than to differences of opinion-in reviewing courts that it has, in some cases, been held that the effect of the misconduct may be eliminated by instructions, and in others that it cannot be. In this case the final instructions to the jury were silent upon the subject. Throughout the record a trial judge, personally distinguished for learning and probity, appears as a grieved observer of continued improprieties which he thought himself powerless to-suppress. It is entirely clear that he was unable to-end them by admonition and entreaty, bnt he was-, clothed with ample power to suppress them inexorably. The county in which he sat has the complement, of county buildings. From the body of the people a few are selected as members of the bar because their qualities are supposed to authorize the expectation that they will render important aid in the administration of justice, gome prime mistakes in the selection are remediable. If the court had sustained the motion for a new trial it would have been a too long; deferred recognition of the rights of the plaintiff in. error, though it would have made this proceeding in error unnecessary. That it should have been sustained is obvious. But it is much more important to observe that the trial judge should not have permitted such conduct on the part of counsel as would result in a mistrial. This was due not only to the parties to the suit, but to the public. But few pages of this record had unfolded when there was manifest occasion, for continuing the cause and dealing with offending counsel according tó his deserts. The observations of the trial judge, from time to time, show that he had an intelligent appreciation of the gravity of the offenses which Avere committed before him. Why he thought it less important to suppress them, than to give correct instructions to the jury as to the laAV of the case, does not appear. In a comparison of causes, a-mistrial because of an erroneous vieAV of the legal rights of the parties would be entitled to more chari- , table consideration. The suggestion by the trial judge that a course of . toleration was chosen because of the inveteracy of counsel’s habit acquired in forty years of similar practice, was most unfortunate. Is it necessary to say that there can be no prescriptive right to hinder the administration of justice by conduct which squanders time and leads to mistrials? Can the suggested discrimination against younger members of the bar be justified or even tolerated?

It is required by the reasons involved and by the decided cases that the judgments of the court of common pleas and the circuit court be reversed, and the cause remanded to the former court for a trial according to law.

Reversed.

Buricet, C. J., Spear, Davis, Price and Crew, JJ., concur.


author: Davis, J.

text:
    Pump v. The Commissioners of Lucas County et al.

      Levying of taxes—By commissioners of Lucas county—Is a law of general nature—Without uniform operation—Therefore unconstitutional and void—Section 2823, Revised Statutes—Constitutional law.

    1. So much of section 2823, Revised Statutes, as purports to authorize the commissioners of Lucas county to levy taxes for county purposes, etc, at a rate not exceeding five mills on the dollar of valuation of the taxable property within said county, is a law of a general nature which does not have a uniform operation throughout the state; and it is therefore unconstitutional and void.
    2. So much of the remaining part of section 2823, Revised Statutes, as was independently and constitutionally enacted and is complete within itself stands and should be enforced. State ex rel. Wilmot et al. v. Buckley et al., 60 Ohio St. 273, distinguished.
    (No. 8542
    Decided January 19, 1904.)
    Error to the Circuit Court of Lucas county.
    The facts are stated in the opinion.

      Mr. B. A. Hayes, for plaintiff in error.

      • Mr. Wm. G. Ullery and Mr. James 8. Martin*, for defendants in error.
   Davis, J.

This action was begun in the court of common pleas, to enjoin the levy of taxes in excess of the rates prescribed in the first clause of section 2823, Revised Statutes, and to enjoin any levy whatever under and by virtue of that clause of said section which reads as follows: “The commissioners of Lucas county shall, at their June session, annually, levy such amount as shall be necessary to provide for the ordinary or géneral expenses of the county, the building and repair of bridges and culverts, the maintenance of the poor, the repair of county buildings, and all other purposes which are paid out of the county treasury by order of the commissioners, the courts, or the auditor, and including any levy authorized by vote of the people, designating at the time of making said levy the amount for each separate fund; provided, that not exceeding five mills on the dollar of the valuation of taxable property within said county, shall be levied in any one year.” It is claimed that this clause of section 2823 is unconstitutional, for the reason that it contravenes section 26, article 2, of the constitution. A demurrer to the petition was sustained by the court of common pleas and judgment was rendered in favor of the defendants. The judgment of the court of common pleas was affirmed by the circuit court

The clause of section 2823, which is here attacked, was embodied in the Revised Statutes from an act of the general assembly, passed May 5, 1877, entitled “An act to limit taxation in certain counties in this state.” 74 O. L., 180. This act was not intended to have a uniform operation throughout the state, for by its title it only applies to “certain counties in this state;” and in the body of the act it is limited to counties “having, at the last Federal census, a population of more than forty-five thousand and less than fifty thousand inhabitants,” and this is conceded to have been applicable to Lucas county alone. Hence when this special act was incorporated in section 2823, Revised Statutes, the codifiers disregarded the subterfuge of describing the county by population and substituted the name of the only county to which the statute applied, or was intended to apply. This being a law of special or local application, if it is a. law “of a general nature,” it is obvious that it violates section 26 of article 2 of the constitution.

It was laid down in Kelley v. State, 6 Ohio St., 269, in general terms, that “the character of a law as general or local depends on the character of its; subject-matter;” and it is now the settled law of this state that whenever the subject-matter of legislation either does or may exist in, or affect every part of the state, such legislation is a “law of a general nature” and must, in conformity with section 26 of article 2 of the constitution, be made to operate uniformly throughout the state. Not only is the sub- - ject of taxation, in its broadest sense, one which affects every part of the state and every individual, therein, but the limitation of the taxing power vitally concerns every individual of the state. Indeed it is difficult to conceive of a subject of legislation of more general and far-reaching nature than that of setting' a limit to the power of taxation. Whether the rate of taxation for general county purposes shall be limited in proportion to the.amount of taxable property shown on the grand duplicate of the county, as provided in one part of section 2823, or whether with a. like amount of taxable property tbe commissioners of a certain county or counties, as provided in the clause in question, may in their discretion levy taxes for general county purposes at any rate not to exceed five mills on each dollar of taxable property, is a matter of public policy which concerns not only every taxpayer but every voter in the state. The subject-matter of taxation for county purposes is not only a subject-matter of a general nature, which, in obedience to the constitution, should be regulated by laws operating throughout the state, but it is so regulated in the section before us. The attempt to confer upon the commissioners of Lucas county such an extraordinary and special privilege and power in respect to matters affecting every county and individual in the state, a privilege and power denied as to all other counties in the state, is therefore null and void.

The clause of section 2823 which is under consideration was an independent act of the general assembly, and has been incorporated in the section with another independent act which is complete in itself and constitutional, and section one of another act which is complete in itself and, excepting perhaps a single clause thereof, is constitutional. The remainder of the revised section 2823, not including the clause relating to the commissioners of Hamilton county, may therefore stand and be enforced although the other part is unconstitutional. So much of the section as relates to the commissioners of Lucas county only, is not an exception to that part of the section which was constitutionally enacted. This case does not therefore come within the rule laid down in State ex rel. Wilmot et al. v. Buckley et al., 60 Ohio St., 273.

Judgment reversed, demurrer to petition overruled and cause remanded to the court of common pleas for farther proceedings.

Burket, C. J., Spear, Shauok, Price and Crew, JJ., concur.


author: Spear, J.

text:
    Rheinstrom et al. v. Steiner et al.

      Petition in error to judgment of common pleas court—Action to recover for goods sold and delivered—Claim judgment against evidence and contrary to law—Circuit court reverses judgment— Presumption as to overruling of judgment—Review of judgment of reversal-rLaw of sale and delivery of goods—Contracts.

    1. Where, in a petition in error to a judgment of the court of common pleas, in an action to recover for goods sold and delivered, ' the grounds of error, with others separately stated, are that the judgment is against the weight of the evidence and that it is contrary to law, and the circuit court reverses the judgment reciting as the only ground of error that the “judgment rendered in this action was contrary to law and the evidence on the question of the acceptance and retention of the goods by the defendants below,” it will be presumed that the assignment that the judgment is against the weight of the evidence was overruled.
    2. Such judgment of reversal may be reviewed by this court.
    3. Where a party under contract to manufacture and deliver certain specific goods, delivers to the buyer goods of a kind not conforming to the contract, and, upon examining them and without delay the buyer informs the seller of that fact and unequivocally refuses to accept or use the goods, and does not use any of them, it is not incumbent on such buyer to manually return such rejected goods nor in words to offer to return them. It is sufficient to relieve him of liability to pay for them if he, in due time, gives the seller clearly to understand that he refuses to accept the goods.
    (No. 8196
    Decided January 19, 1904.)
    Error to the Circuit Court of Hamilton county.

      The defendants in error brought action against plaintiffs in error in the court of a justice of the peace of Hamilton county, to recover $247.50, the agreed price of certain labels claimed to have been sold and delivered to Abraham and Isaac Rheinstrom, at their request. The cause being appealed to the court of common pleas the defendants in that court answered by general denial. On trial to the court, a jury being waived, the issues were found for the defendants, and judgment in their favor rendered. Steiner & Co. took the case on error to the circuit court, and that court, finding “that there is manifest error upon the face of the record to the prejudice of the plaintiffs in error in this case, to wit : said judgment rendered in this action was contrary to law and the evidence on the question of the acceptance and retention of the goods by the defendants below,” proceeded to reverse the judgment of the common pleas and remanded the cause to that court. The Rheinstroms bring error.
    Facts necessary to an understanding of the points decided will be found in the opinion.

      Mr. J. Shroder, for plaintiffs in error, cited and commented upon the following authorities :

      Mehurin v. Stone, 37 Ohio St., 49; Gale v. Priddy, 66 Ohio St., 400; Railway v. Osborn, Id., 45; Mengert v. Brinkerhoff, 67 Ohio St., 472; 48 O. L. B., 285; Fireman’s Ins. Co. v. McGreevy, 118 Fed. Rep., 418; Druse v. Wheeler, 26 Mich., 189-196; Gavigan v. Evans, 45 Mich., 597; Seligman v. Ten Eyck’s Est., 49 Mich., 104; Harris v. Sharples, 202 Pa. St., 247; Wetzell v. Richcreek, 53 Ohio St., 63; Gamble, Admr., v. Railroad Co., 63 Ohio St., 352-360; Varley v. Whipp, 1 Q. B., 513; Potter v. Potter, 27 Ohio St., 84; Ford v. Osborn, 46 Ohio St., 1; Bonham v. Hamilton, 66 Ohio St., 82; Benjamin on Sales, secs. 376, 689; Cunliffe v. Harrison, 6 Exch., 903; Levy v. Green, 1 El. & El., 969; 21 Am. & Eng. Ency. Law, 541; Downer v. Thompson, 2 Hill (N. Y.), 137; Rommel v. Wingate, 103 Mass., 327; Perry v. Iron Co., 16 R. I., 318; Barton v. Kane, 17 Wis., 44; Pope v. Allis, 115 U. S., 363; Dixon v. Fletcher, 3 M. & W., 146; Tarling v. O’Reardon, L. R. 2 Irish, 82; Landesman v. Gumersall, 16 Mo. App., 459; Gunoldly v. Wells, L. R., 10 C. P., 391; Lucy v. Mouplet, 5 H. & N., 233.

      Messrs. Galvin & Bauer, for defendants in error, cited and commented upon the following authorities:

      Andrews v. Hensler, 73 U. S. (6 Wall.), 254; Nichols v. Guibor, 20 Ill., 285; Osburn v. Stanley, 35 Ill., 102; Cook v. Tavener, 41 Ill., 102; Spickler v. Marsh Bros., 36 Md., 222; Hickman v. Shimp, 109 Pa. St., 16; Rohn v. Dennis, 109 Pa. St., 505; Childs v. O’Donnell, 84 Mich., 533; Machine Co. v. Mengel, 99 Mich., 280; Fintel v. Cook, 88 Wis., 485; Heilbut v. Hickson, 7 C. P., 451; Conston v. Chapman, L. R. 2 Sc. App., 250; Dailey v. Green, 15 Pa. St., 118; Indiana Mfg. Co. v. Hayes, 155 Pa. St., 160; Treadwell v. Reynolds, 39 Conn., 31; Ellis v. Roche, 73 Ill., 280; 2 Schuler on Pers. Prop., sec. 408; Spencer v. Hale, 30 Vt., 318; Boughton v. Standish, 48 Vt., 594; Sanders v. Jamison, 2 Car. & Kir., 557; Howard v. Hayes, 47 N. Y. Sup. Ct., 90; Underwood v. Wolf, 131 Ill., 425; Frank Leslie v. Evans, 4 Re., 307; 1 Clev. L. Rep., 273; Seeds v. Simpson, 16 Ohio St., 321; Parker v. Davis, 6 Circ. Dec., 684; 13 R., 631; Bonham v. Hamilton, 66 Ohio St., 82; Corning v. Colt, 5 Wend., 253; Jenness v. Mt. Hope Iron Co., 53 Me., 20; Plant Seed Co. v. Hall, 14 Kan., 553; Shrimpton v. Warmack, 72 Miss., 208; Brownfield v. Johnson, 128 Pa. St., 268.
   Spear, J.

The first question is one of practice. Does the entry of the circuit court show that the common pleas was reversed on the weight of the evidence, or was it upon that which, in the last analysis, is a question of law? If upon the former ground then this court will not review the judgment. A number of grounds of error are set forth in the petition in error to the circuit court. Among them that the “judgment is against the weight of the evidence,” and another that “the judgment is contrary to law.” By section 6709, Revised Statutes, it is made the duty of the circuit court to pass upon all the errors assigned in the petition in error, and where the judgment below is reversed and the cause remanded for new trial the mandate shall state the errors found in the record upon which the judgment is founded. Now, as all presumptions are to be indulged in favor of the judgment under review, we assume that the circuit court did its duty in this respect, and that, if it had, on the weight of the evidence, found error it would have so stated in its mandate. In the absence of such statement we assume that that claim of error was overruled and the reversal based wholly on the other proposition, viz.: that the judgment is contrary to law, notwithstanding that the entry adds that it is contrary to the evidence on the question of acceptance. In legal effect it means that, giving proper construction to the evidence on the question of the acceptance and retention of the goods by the defendants below, the rule of law applied to it by the trial court was erroneous. The judgment, therefore, may properly be reviewed by this court without departing from our rule which forbids the weighing of evidence. Wetzell v. Richcreek, 53 Ohio St., 62; Gamble v. Railroad Co., 63 Ohio St., 352.

Did the trial court apply the wrong rule of law to the evidence respecting the acceptance and retention of the goods? Without question the burden was upon the defendants in error to establish acceptance. To determine this with fairness to them it is proper to recite the evidence adduced by them to support that contention. Not that the evidence is to be weighed, but, taken all together, does the evidence tend to show such acceptance, or does it show the contrary?

On the day the goods were received by defendants below, they acknowledged receipt under date of January 31, 1900, by the following letter, viz.:

“Dear Sirs—We received today the shipment of Jed Clayton labels, but regret to find that the work is not properly carried out. Please return to us the original sketch and we will point out to you in detail the defects.
“Yours truly,
“Rheinstrom Bros.”

To this the plaintiff below responded under date of February 2, 1900, as follows:

“Gentlemen—We beg to acknowledge receipt of your favor of the 31st ult. in regard to “Jed Clayton” labels, that same have reached you but that the work is not properly carried out.
“We are again very sorry to hear your complaint, and herein enclose the sketch which was submitted to you, with one of the labels, and no doubt our Mr. Steiner will be in your city by the time these few lines reach you, and you can explain matters to him personally.
“We remain your very truly,
“Wm. Steiner Sons & Co.”

Some time after the above date Mr. Isadore Steiner,. one of the plaintiffs below, called at the office. of Rheinstrom Bros., and his account of the conversation then had is in substance that Mr. Rheinstrom then told me that he received our labels, but will not use them. I asked him why, and he said they were too far away in color from his original label, and in answer to that I told him we made them like the sketch which he furnished. He told me something regarding his-attorneys telling him that he had a copyright on his-label and that by changing off to a different color that his copyright was no good, as anybody could infringe-upon his label. I plead with him saying the labels are-no earthly good to me. He said he couldn’t help-that; the best thing you can do is to put them in the-fire and burn them up while you wait here. I said you cannot burn them; they are my property until they are paid for. Then I tried to get him to accept them. He said he would not accept them labels for any price—^not for ten cents a thousand. I put on. my hat and coat and walked out.

There is no other evidence by plaintiffs below bearing on the question of acceptance than the foregoing,, and no evidence at all of use by defendants below of any of the labels.

Mr. Abraham Rheinstrom testified in substance-that the labels were defective in drawing, color, and. workmanship. We could not use them at any price. We never accepted these labels, but wrote immediately rejecting them. (Letter of January 31, 1900, heretofore given.) They replied by letter. (Letter of February 2, 1900, heretofore given.) The labels were-put in charge of one of our employes, in the original packages, to be held until called for. We heard nothing more until Mr. Steiner came to our office.

The burden was upon plaintiffs below to prove a. ■compliance with their contract. The effect of the finding'and judgment of the common pleas on the issues is that the goods furnished were not the goods ordered. ’The finding and judgment in this respect not having been found erroneous by the circuit court, but the .judgment in respect thereto having been affirmed, the ■only ground on which a recovery could have been ■predicated was that the goods had been accepted by the buyers, and hence they were liable for the price. Here, too, the burden was on the sellers. Their own •evidence shows conclusively that the buyers did not accept unless a failure to manually return the rejected goods is in law an acceptance. Is it? From the ¡standpoint of ordinary fairness how is it? The buyers had ordered labels of a specified kind. The sellers had delivered labels of a different kind, not conforming to the agreement, of which facts the sellers were at once by letter fully apprised, to which they responded that by the time their letter should reach the buyers one of their firm would call and matters could be explained. He did call and was distinctly notified that the labels were wholly useless to the buyers, and as distinctly informed that they were rejected. On what principle of commercial dealing could they ask the buyers to take further trouble in the matter at the peril of being compelled to pay for a wholly useless article and one which they had not purchased? We ■can conceive of no rule of business comity which would justify such a claim. If maintainable at all it must be by force of some rigid rule of law.

Numerous authorities are cited by counsel for defendants in error which bear on the subject of sales and afford general rules which should govern the conduct of the buyer where the goods are not satisfactory. Without doubt the rule is well settled that the buyer’s Retention of the goods beyond a reasonable time for examination and communication with the seller, standing alone, will be regarded as warranting the conclusion that he has accepted and thus become liable, especially if the delay has worked prejudice to the seller. But we find no case, either among those cited or elsewhere, analogous to the case at bar on its facts, and none in which the mere failure to make manual return ■of the goods, after a timely and explicit rejection of them, and where it appears that no prejudice to the ■■seller has been caused by the delay is held to make the buyer liable under the contract. On the contrary there is abundant authority for the proposition that unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he informs the seller that he refuses to accept them. Of many, we cite Benj. on Sales, Bennett’s 7th ed., 975. The familiar rule, held in one of the cases relied upon, that there. must be an offer to return on the part of one who seeks to rescind a contract is not applicable to the facts of this case. There was no completed contract because there had been no delivery of the goods agreed to be ■furnished on the part of the sellers and no acceptance by the buyer of those which had been delivered, and hence there was no contract to be rescinded. That the goods should be as ordered was a condition of the contract, and that condition had not been performed by the seller. And, as held by Mr. Justice Woods, in Pope v. Allis, 115 U. S., 363: “When the subject-matter of a sale is not in existence, or not ascertained at the time of the contract, a contract that it shall, when existing or ascertained, possess certain qualities, is not. a mere warranty but a condition, the performanee of which is precedent to any obligation on the; vendee under the contract; because the existence of those qualities being’ part of the description of the; thing sold becomes essential to the identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted.”

We fail to find any fast rulé of law which would make the defendants below liable siniply because they did not manually return the labels. In fact, as. shown by uncontradicted testimony, these labels were not used at all by them, but were kept in the original packages, to be held until called for, and this fact was fully made known to Mr. Steiner by the conversation at the time of his call, in connection with previous correspondence. True it does not appear that it was stated to him in words that the goods were-held subject to his order, but any intelligent business, man could not fail to draw the conclusion that such was the fact, and his own declarations show that he-regarded the labels as still the property of his firm. And such indeed was the law of the situation, the rule-being that where there is a contract for sale of specific-goods, and the seller is bound to do something to-put them in a deliverable state, the property does not pass until that is done, and the buyer has notice. Bonham v. Hamilton, 66 Ohio St., 82. No prejudice-of any kind resulted to the sellers by the nondelivery, because, as stated by Isadore Steiner, the labels were of no- use to them, and we are clear that they have made-no case warranting a recovery for the goods. To have-shipped the goods to the Steiners, without direct orders to do so would have made the Rheinstrom Bros, liable in the first instance for drayage and freight,, and this burden the Steiners had no right either im morals or in law to place upon them. Grimoldby v. Wells, 10 L. R. C. P., 391; Lucy v. Mouflet, 5 H. & N., 228; Barton v. Kane, 17 Wis., 37; Landesman v. Gumersall, 16 Mo. App., 459.

Another ground urged by counsel for plaintiffs in error as supporting the judgment of the common pleas is that there was a delivery of a large quantity of labels in excess of the number ordered. The point is somewhat technical inasmuch as it does not appear that this fact was stated as a ground for rejection, and as it is unnecessary to a decision we do not care to consider it.

We are of opinion that the court of common pleas applied the correct rule of law to the evidence on the question of acceptance and retention of the goods, and that the reversal of its judgment by the circuit court was erroneous. Its judgment will, therefore, be reversed and that of the common pleas affirmed.

Reversed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.