text:
    Gaylord et al. v. Hubbard, Treasurer.

      Board cf equalization — Appointment of — Laws of uniform operation —Invalidity of act of April 13, 1893 — Constitutional law.

    Section 5 of an act passed April 13th, 1892 (89 Ohio Laws, 283), To provide for the appointment of a board of equalization and assessment in cities of the second grade of the first class,” confers on the annual board of equalization created by the act, powers that substantially differ from those conferred upon all other annual boards of equalization in this state by the general statute upon that subject, and for that reason conflicts with section 26 of article II of the constitution of this state, and is void.
    (Decided February 2, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiffs in error, as owners of real property situated in the second ward of the city of Cleveland, brought this action in the court of common pleas of Cuyahoga county, against the county treasurer, to restrain that officer from collecting certain taxes which the petition alleged had been unlawfully added to their property by reason of its value having been raised by the annual board of equalization of the city of Cleveland, above that fixed thereon by the preceding decennial city and state boards. The plaintiffs prevailed in the court of common pleas. The cause was then appealed to the circuit court by the defendant, in which latter court the defendants had judgment. The plaintiffs thereupon brought the cause to this eour fc for review on error. The facts necessary to an understanding of the decision will be found in the opinion.

      Burke <& Ingersoll, for plaintiffs m error.

      The law of 1892, under consideration, violates article II, section 26, of the constitution. It is a law of a general nature, and its operation is limited to the city of Cleveland. This court has clearly defined, as we understand its opinion, when a law is of a general nature. Kelly v. The State, 6 Ohio St., 269; Hixson v. Bur son, 54 Ohio St., 470; State ex rel v. Davis, 55 Ohio St., 15; McGill v. State, 34 Ohio St., 238; Cincinnati v. Steinkamp, 54 Ohio St., 284.
    We contend, as to the notice given by this board preliminary to making the increase of valúa-' tion upon the property of plaintiffs, that either this special law for Cleveland permits the change of decennial valuation without requiring any notice to be given to the owner, and in that event is obnoxious to the charge that it disregards and differs from, the law pertaining to all the rest of the state, as laid down in sections 2805 and 2806, which both require notice, and which cover the entire state in terms; and thus violates article II, section 26 of the constitution or else, if notice is required as by sections 2804 and 2805, no such notice was given as is required by law. Section 28046 (89 O. L. 174) requires that notice such as provided for shall be served. This statute is mandatory, and must be strictly followed. Perkins v. Zumstein, 4 C. C. Rep., 371; 25 Am. &-Eng. Ency., 76, Title, Taxation; Cooley on Taxation, 287; Power’s Appeal, 29 Mich., 504; Lagronev. Rains etal., 48 Me., 536; Cooley on Taxation, 365.
    The constitutional provision that all “laws of of a general nature shall have a uniform operation throughout the state,” is mandatory and not directory. Ex pande Falk, 42 Ohio St., 638; State v0 Ellett, 47 Ohio St., 90; Costello v. Wyoming, 49 Ohio St., 202.
    The action of the Cleveland board in question, in changing in 1894 the valuation given in 1890 by the decennial state board, to the lands of the petitioners in the city of Cleveland, was in violation of article XII, section 2, of the constitution of Ohio which provides£ £ Laws shall be passed taxing by a uniform rule all real property according to its real value in money. ’ ’ Cooley on Taxation, 259.; Bank v. Hines, 3 Ohio St., 15; State ex rel. v. Jones, 51 Ohio St., 492; People v. Weaver, 100 U. S., 539; Cummings v. Bank, 101 U. S., 158; Bloom v. Richcvrd, 2 Ohio St., 402.
    If we understand the drift of recent decisions by this court, it is to the effect that classification of cities has been sustained by this court upon the grounds of necessity for the purposes of organization of municipal corporations and conferring upon them corporate powers, and for no other purpose. Cincinnati v. Steinkamp, 54 Ohio St., 284; Ilixon v. Bur son et al., 54 Ohio St., 470. The law in ques. tion attempts to extend the principle of classification so that it shall apply to the purpose of assessing a tax; part of which, at least, is for general state purposes.
    The law comes clearly within the reasoning laid down by this court in the case of The State v. Pugh, 43 Ohio St., 98.
    This honorable court has very recently announced in the State v. Cincinnati, 52 Ohio St., 448, the principle upon which the classification of cities may be sustained.

      P. H. Kaiser, and Norton, Phillips & Growl, for defendant in error.

      The statute under consideration is not a law of a general nature within the meaning of section 26, of article 2, of the constitution of Ohio. Attempts have been made by this court, as well as by other courts of great learning to define with exactness the 'phrase, “law of a general nature,” but all these efforts have left in the mind an annoying sense of vagueness and incompleteness. Kelley v. The State, 6 Ohio St., 269; McGill v. State, 34 Ohio St., 245; State ex rel. v. Bargus, 53 Ohio St., 94 ; Ilixson v. Bur son, 54 Ohio St., 470.
    Frequent changes in values demand frequent, adjustments in values, if property is to stand upon the duplicate at “its true value in money,” as prescribed by the constitution. Article XII, Section 2.

    The law under consideration, then, is not one of a general, but one of a local nature, and is not required by the constitution to operate uniformly in every part of the state.
    In the following cases, statutes were held to be of a local nature: Cricket v. The State, 18 Ohio St., 9; State ex rel. v. The Judges, 21 Ohio St., 1; State ex rel. v. Mitchell, 31 Ohio St., 592; Ohio ex rel. v. ■ Covington, 29 Ohio St., 102; McGill v. State, 34 Ohio St., 228; State ex rel. v. Cappeller, 39 Ohio St., 207; State ex rel. v. Shearer, 46 Ohio St., 75; Hart v. Murray, 48 Ohio St,5 605; State ex rel. v. Jones, Auditor, 51 Ohio St., 503; State v. Kendle, 52Ohio St., 346.
    The foregoing cases illustrate well the proposition that the constitution does not have to do at all with the details of administration, but leaves all such matters to the discretion of the legislative body.
    If the court should hold the statute under consideration to be a law of a general nature and that it must have uniform operation throughout the state, we claim that it does have such operation upon all cities of the first class, second grade, and that such classification of cities comes within the rule adopted by the court in numerous cases among which are the following: The State v. Powers. 38 Ohio St., 63; The State v. Brewster, 39 Ohio St., 653; The State ex rel. v.Wall et ql., 47 Ohio St.,- 500; State ex rel -v.. Cincinnati, 52 Ohio St., 419; The State v. Pugh, 43 Ohio St., 112; The State ex rel. Attorney General, v. Hawkins, 44 Ohio St., 108; Bronson v. Obevlin, 41 Ohio St., 480; Costello v. Wyoming, 49 Ohio St., 209.
    The legislation under consideration does not violate section 2, of article XII 'of the constitution.
    As its title indicates, the subject-matter of the statute is equalization and assessment of values. The rule of uniformity required by section 2, of article XII, of the constitution, is not violated by a statute which provides that in certain localities, property may be valued, and equalized by different modes and agencies from those provided in other statutes for other localities. Wagner v. Loomis, 37 Ohio St., 571; State ex rel.sr. Jones, Aud., 51 Ohio St., 492.
    Plaintiffs in error assail the action of the board of equalization upon the ground thatnonotice, such .as is required by law, was given of theintended action of the board. This objection cannot have any force except upon the assumption that the legislation under consideration is valid, and that the action of the .board would have been lawful, had the requisite notice been given. The agreed statement of facts contain the following statement: “Individual protests were made by taxpayers of said ward, from time to time, while the matter was pending before the board, including by means of general and individual protests all of the plaintiffs and all of the crosspetitioners. ” Whether, therefore, notice was or was not required, the plaintiffs in error all voluntarily entered their appearance in the proceedings had before and by the board of equalization, and they cannot now sucessfully make the point of want of notice.
   Bradbury, J.

The plaintiffs, upon two grounds, deny the legality of the proceedings by which the taxable value of their property was raised above that fixed by the preceding decennial appraisement.

i. Because the statute authorizing the proceeding violates two provisions of the constitution of the state: 2. Because due notice of the proceedings was not given' to them.

The statute, they aver, conflicts with article 2, section 26, of the constitution, which declares: ‘ ‘All laws of a general nature shall have a uniform operation throughout the state.” And also with section 2, of article XII, which declares: “Laws shall be passed, taxing by a uniform rule all real and personal property.”

The act assailed is found in volume 89 Ohio Laws, 283. It provides for the appointment by the probate court of a board of equalization composed of three members, not more than two of whom shall belong to the same political party. It also provides for their organization, prescribes their duties and fixes their compensation. This proceeding, however, was not instituted to oust them from their office, nor to defeat their title to compensation, and therefore we have no concern with thefirst, second, third and fourth sections of the act which deal with these subjects. The fifth section, however, defines the authority of the board after its organization, and the plaintiffs contend that the powers thus conferred upon this board are materially different, and more extensive than are the powers conferred upon boards of equalization in.other cities or upon county boards, and therefore theyaremade subject to a power not operative in any other part of the state. The section reads as follows :

Section 5. “That as soon as practicable after the first Monday of May, 1892, and annually thereafter, the said board shall proceed to hear complaints and to equalize the valuation of all real property in such city; and it shall have the power to raise the valuation of certain tracts and lots of real property as in its opinion are valued below the true value thereof,' and to reduce the valuation of such tracts and lots of real property as in its opinion are valued above their real value, as compared with the average valuation of the real property in such city; and it shall have all the power provided by law for decennial count}? boards for the equalization of real property, and shall be governed by the rule prescribed by such decennial boards in equalizing the valuations returned by district assessors, provided that it shall not reduce the value of the real property of the city below the aggregate thereof as fixed by the state board of equalization, nor below its aggregate value on the duplicate of the preceeding year, to which shall be added the value of all new entries and new structures over the value of those destroyed as returned for the current year.”

This section is dealing with the boar din its character of an annual board, and the powers it prescribes should be regarded as belonging to it while acting as such. These powers are identical with those enjoyed by decennial county board of equalization of real property.

Section '6 of the act (89 Ohio Laws, 284), makes this board also a decennial board, and except as otherwise provided in the act, clothes it with all the powers of a city decennial board for equalizing the value of real property, and also while so acting with all the powers of an annual board as well as some additional powers. The entire field of authority of this body, while acting as a decennial board, is covered by section- 6 of the act. There is no necessity for resorting to the preceding section, to ascertain its decennial powers. The suggestion, therefore, that the clause of section five, which gives the board the powers of a decennial county board, refers to it in decennial capacity is not sound. Section five, as we have seen, is dealing with it as an annual board and clothing it with authority, as such, and its provisions should be held to refer to it in that capacity.

Section 2804, Revised Statutes, which prescribes the duties and powers of annual county boards for equalizing the value of real and personal property, is in the following terms : .

Section 2804. “There shall be an annual board for the equalization of real-and personal property, moneys and credits in each county, exclusive of cities of the first and second class, to be composed of the county commissioners and county auditor, who shall meet for that purpose at the auditor’s office, in each county,, on the Wednesday . after the third Monday in May, annually. Said board shall have power to hear complaints, and to equalize the valuation of all real and personalproperty, moneys and credits within the county, and shall be governed by the rules prescribed for the government of decennial county boards for the equalization of real property; provided, that said board shall not reduce the value of the real property of the county below the aggregate value thereof as fixed by the state board of equalization, nor below its aggregate value on the duplicate of the preceding year, to which shall be added the value of all new entries and new structures over the value of those destroyed, as returned by the several township assessors for the current year; provided, further, that except as to new structures, and structures destroyed, and lands and lots brought on the tax list since the preceding decennial state board of equalization, the annual county board shall not increase or reduce the valuation of any real estate, except in cases of gross inequality, and then only upon reasonable notice to all persons directly interested, and an opportunity for a full hearing of the question involved. ” * * *

An inspection and comparison of this section— 2804 — Revised Statutes, with the provisions of section 5 of the act in controversy, will show a substantial difference in the authority which they respectively confer. That conferred upon the annual board sitting in and for the city of Cleveland is materially greater than that conferred by the general statute, on all the other annual boards within the state. In the city of Cleveland the powers of the annual board of equalization are practically unlimited, except in respect of diminishing existing' aggregate values. No bounds whatever are fixed to its power to increase. It may act upon whole districts, and without personal notice to the owners of real property situated therein. As to the owners of real property within the city of Cleveland the values set thereon by the preceding state board of equalization has no significance, except that their aggregate burden cannot be decreased. No such power has been conferred upon annual boards of equalization sitting in the other parts of the state. They can act only upon specific parcels of real property, and only in cases of gross inequality, and after personal notice.

Section 5 of the act in question (89 Ohio Laws, 384) therefore subjects real property within the city of Cleveland to a burden from which all other real property within the state is exempt, and therefore the section has,not a uniform operation throughout the state.

If it is a law of a general nature this failure' of uniform operation brings it within the constitutional inhibition of section 26, of Article II. of the constitution of this state.

That we have no infallible standard by which to determine what constitutes a general law, has contributed chiefly, if not solely, to the apparent want of harmony in the adjudications and opinions upon the subject in the several states whose constitutions require general laws to operate uniformly in every part of the state. Much, if not all, of this uncertainty would have been avoided if the courts had adopted and rigidly adhered to the principle that the character of the law in this respect, followed that of its subject-matter, being general wherever it dealt with a general subject, and local whenever it concerned a local subject. The necessities of the ease prohibit the question from being controlled by the form of the statute. If a statute, by expressly or inferentially declaring to be local, a subject of legislation existing in every subdivision of the state and of general interest, could then proceed to legislate upon it for a portion of the state only, this constitutional provision would have no value. An evasion so easily made would accomplish practical nullification. This cannot be allowed. The form of the statute, therefore, should be disregarded, .and attention given to its substance. If, in fact, a statute relates to a subject which can be regulated only by a general law, such statute should be considered a general statute, although in form local; that is, couched in terms,by which its operation is expressly limited to a single locality. This limitation of its operation does not render the statute local, but makes it void because as thus limited it conflicts with the constitutional provision requiring general laws to operate uniformly throughout the state.

This view of the question also denies to the general assembly the power to conclusively determine whether a subject, upon which they are about to legislate, is general or local in its nature. If such subject is, in its nature, general, its character can not be changed by legislative declaration. If this result could be brought about in that way, all that would be necessary to the validity of a local statute dealing with a general subject, would be a prior declaration that the subject was local.

As the character of a statute, whether local or general, does not depend solely upon its form, so the character of its subject-matter is independent ■of legislative declaration. The two propositions are so closely allied as to be interdependent if not practically identical.

Our sense of the inherent fitness of things finds much to commend in the theory that all general subjects should be regulated by general laws, »and all subjects of a local nature by local laws; and tbe mind meets great difficulty in divesting itself of tbe notion that tbe framers of tbe constitution intended to secure this end by tbe provision respecting the uniform operation of general laws. This court,- however, as well as those of other states having a similar provision, in the practical administration of justice, has not adhered to this theory: though at all times and in every ease, the subject of legislation has been accorded great weight in determining the character of the statute, and has generally controlled the question. Kelly v. The State, 6 Ohio St., 269; Hixson v. Burson et al., 54 Ohio St., 470.

The courts might have adhered more closely to the theory above stated, if there could be erected an infallible standard by which to determine the character of the subject of a statute, so that the line of demarkation between general, and local matters could be fixed with certainty, and each assigned to its proper class with absolute confidence. I know of no test capable of such universal application. The only practicable rule on the subject is that which requires each case as it arises to be placed in the one class or the other as the common understanding’ of mankind may dictate.

This is the rule of inclusion and exclusion, adopted by the Supreme Court of the United States in Davidson v. New Orleans,96 U. S., 97, in determining what shall constitute “due process of law” under the fourteenth amendment to the constitution of the United States, and which was referred to with approval by Judge Boynton, in McGill v. The State, 34 Ohio St., 228.

In the case before us, however, we encounter no difficulty in assigning the subject of the section in question (section 5, 89 Ohio Laws, 283), to its appropriate class. Its nature, is unmistakably general. The power it confers could be exercised as appropriately over every parcel of land within the state as it could be over those situated within the limits of the city of Cleveland, to which its operation is confined. A subject of more widespread interest can hardly be conceived. It directly concerns every owner of a parcel of land within the state, and indirectly the owner of every other species of property liable to taxation under our system of raising- public revenue, and also affects the public revenue itself.

According to the generally received notions of mankind, a subject is general wherever it relates to interests so extensive, and to persons so numerous. The record discloses no local conditions demanding special relief, and none are suggested in argument that might not exist in any other section of the state. The city of Cleveland may be thrifty, and that thrift may cause some portions of the city to develop more rapidly than other sections, and values of real property fluctuate accordingly. This, however, may be affirmed of many other towns and cities within the state, and in a greater or less degree of mining and oil producing territory, and even agricultural districts lying outside of towns and cities. And in other instances decay of trade or the destruction or removal of extensive manufacturing establishments has produced a similar change in values, which demand relief as loudly as similar conditions do in the city of Cleveland.

This court held, in Commissioners v. Rosche Bros., 50 Ohio St., 103, that an act authorizing a county containing a city of the first grade of the first class (Hamilton county), to refund taxes erroneously paid under section 2742, Revised Statutes, violated section 26 of Article XI, of the constitution of this state. That act granted relief to tax payers who, in a county having a city of the first grade of the first class, had erroneously paid taxes under a certain section of the Revised Statutes, while no relief was provided for a taxpayer for taxes paid under similar conditions in the other counties of the state. The act in that case granted relief to persons who had paid taxes in one county, which were denied to persons who under identical circumstances, may have paid them in the other counties of the state. In the case under consideration the statute imposes a burden upon owners of real property situated in cities of the second grade of the first class (Cleveland), not imposed upon the owners of real property, situated in other parts of the state. We think section 26, of Article XI, of the constitution, prohibits this being done. This conclusion renders a consideration of the other questions made upon the record unnecessary.

Judgment affirmed.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Felix v. Griffiths.

      Covenant of lease — Destruction of leased property — Common law rule as to loss — Tenant not relieved from payment of rent— Unless protected by provision in lease.

    1. At common law, where there is a covenant on the part of the lessee to pay rent for the term, and buildings on the demised premises are destroyed by fire, the tenant is not relieved from the payment of rent unless he has protected himself by a provision in the lease to that effect.
    2. In giving construction to a provision of a statute, or a contract, which attempts to abrogate, or modify, a well established rule of the common law, the scope of the provision should not be extended beyond the plain import of the words used if reasonable effect can otherwise be given to it,
    3. A lease for years, at a rental of $1,500 per year, payable $125 monthly in advance, contained the following clause: “It is agreed by and between the parties to this lease, that in case any building now standing on said premises shall be destroyed or injured by the elements or other cause, so as to be unfit for occupancy, without any fault or neglect on the part of the second party, said second party shall not be liable to pay rent for said premises from and after the time the said second party shall have surrendered possession of said premises to said first party.” After payment, during the term, of a month’s rent, and before the expiration of the month, a fire occurred, without fault of the lessee, which so injured the buildings as to render them unfit for occupancy. Thereupon the tenant surrendered possession and brought action to recover of the lessor a portion of the advance payment, claiming it as still unearned.

      Held: That the provision in the lease above quoted reserves no right to recover back any portion of a monthly installment of rent once paid, and that the action cannot be maintained-
    (Decided February 2, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    The defendant in error was plaintiff in the court of common pleas. His action was founded upon a petition of which the following is a copy:

      Plaintiff avers that on or about the 8th day of October, 1890, he entered into a written lease with the said defendant, whereby the said defendant leased to him a certain two-story frame building and barns, known as numbers 393 and 395, Ontario street, in Cleveland, Ohio, and also the second story of the frame building known as No. 391 Ontario street in said city, for a term, of seven years from and after October 9, 1890, at a rental of $1,500, a year, payable $125.00 per month, on the ninth day of each and every month, in advance; said lease being recorded in volume 15, page 141, Cuyahoga county record of leases.
    Said lease contained the following clause and agreement:
    “It is agreed by and between the parties to this lease, that in case any building now standing on said premises shall be destroyed or injured by the elements or other cause, so as to be unfit for occupancy, without any fault or neglect on the part of the second party,' said second party shall not be liable to pay rent for said premises from and after the time said second party shall have surrendered possession of said premises to said first party. ’ ’
    Plaintiff avers that on the ninth day of January, 1893, he paid to said defendant the rent for the ensuing month, being the said sum of $125.00, and that on the 13th day of January, 1893, said leased premises were, without any fault or neglect on his part, so destroyed and injured by fire as to be unfit for occupancy, and thereupon quit and surrendered possession of the same to said defendant, and has not since occupied the same or any part thereof. Plaintiff says that at the time of said destruction and surrender of possession of said premises, there was still unearned of the $125.00, which he had paid as rent in advance, the sum of $112.63, which sum defendant refuses to pay, though oft requested.
    Wherefore, by reason of the premises there is due to said plaintiff the sum of $112.63, with interest from January 13, >1893, for which he prays judgment.
    Answer was filed, raising an issue, and the cause coming on for trial, the plaintiff was called as a witness. Objection was interposed to any evidence being given on the ground that the petition did not state facts sufficient to constitute a cause of action. The objection was overruled and exception duly taken. The trial resulted in a judgment for plaintiff below, ' which was affirmed by the circuit court. To reverse these judgments the present proceeding is brought.

      Willson <& David, for plaintiff in error.
    When. Griffiths paid the $125.00 rent in advance on January 9, 1893, he was bound by contract to do so.
    On that day the reception of the money by Felix became a vested right.
    It became his money to do as he pleased with it; the payment became a finished and concluded transaction. At common law the tenant was liable for the rent for the whole term notwithstanding the total destruction of the premises.
    When he paid the $125.00 he was liable to pay ; if he surrendered the premises he was not liable to pay any, more or any future rent. The clause looks forward and not backward; it is prospective and not retrospective. If the tenant desired to collect back a part of the money he had paid he should have inserted apt words for that purpose in his contract No such words being in the contract he can recover nothing back. This was an entire sum and for each month the contract is entire and unseverable. There is no law and no contract which severs this entire sum. When once paid it is paid forever; the payment makes an end of that part of the lease. Griffiths’ election to surrender can have no other effect than to leave the parties in statu quo.

      John B. Began sr. Aaron G. Baldwin, 126 Mass., 485; linn v. Boss, 10 Ohio, 412; Bioh v. Smith, 121 Mass., 328.
    Am. and Eng. Ency. of Law. Volume 12, page 741.
    So the destruction by fire of premises for the rent of which a note has been given does not constitute a defense. Diamond v. Ha/i,ris, 33 Tex., 634; Brooks v. Gutter, 119 Mass., 132; Gay, etc. v. Davey, 47 Ohio St., 397.
    The recorded lease gave the right of possession and nothing but the surrender or cancellation of the recorded lease could divest the tenant of the legal possession and the right to possession. Ooe v. Hobby, 72 New York, 141.
    To effect the surrender of an existing lease by operation of law, there must be a new lease valid and effectual in law. Therefore an oral agreement for a term longer than a year will not operate as a surrender of an existing^ written lease. Taylor’s Landlord and Tenant, section 509.

      IJessenmueller & Bemis, for defendant in error.
    Felix now asks this court to reverse the findings of the three lower courts, and gives as a reason why he ought not to be called upon to pay back any portion oi this unearned rent because Griffiths paid the rent money in advance, and that both the lease and the statute (§ 4113) contain the clause “that said lessee shall not be liable to pay rent to the less'or, after the building has been destroyed, ” etc. etc.,; which, it is claimed by him, means that the lessee is absolved from paying rent in the future, but cannot be applied to cases where the rent has been paid in advance, and the destruction of' the buildings and surrender of the possession of the premises occurs thereafter.
    Such a construction would be manifestly contrary to the intention of the parties and against equity. The whole tenor of the lease and of the statute on the point now being considered clearly manifests the intention of the parties and of the statute that the lessor shall not be permitted to retain the rent that has been paid .nor shall the lessee be liable for any rent after the destruction of the building and the surrender of the possession of the premises.

    The criterion therefore is the destruction and surrender of the possession. Both, it is true, must concur, but when there has been a destruction of the building and a surrender of the premises as in the case at bar, then it is clear that even though the lessee may have paid rent in advance either for a week, a month, a 3rear, or for the whole term, that fact, in itself, cannot possibly be any reason for permitting the lessor to retain the rent money or a proportionate part thereof which has not been earned as rent at all.
   Spear, J.

The question is as though there were a demurrer to the petition. This pleading asks to recover of the lessor a portion of a month’s rent paid by the lessee upon a lease which, provided for the payment of $1,500.00 per year for the demised premises, payable $125.00 per month, in advance, on the ground that the premises, having been destroyed by fire and injured so as to be unfit for occupancy, had been surrendered by the lessee to the lessor, by virtue of the clause in. the lease permitting surrender on account of fire.

Do these allegations give a right of recovery ?

The common law rule is, that where there is a covenant on the part of the lessee to pay rent for the term, and the buildings are destroyed by fire, the tenant is ' not relieved from the payment of rent unless he has protected himself by a provision in the lease to that effect. And to' show that this is the rule in Ohio, we need but cite Linn v. Ross, 10 Ohio, 412, where the principle is expressed in these words: “If a tenant agrees expressly, whether under seal or not, to pay rent, and makes no reservation on account of unavoidable accidents, he is bound to pay the rent for the whole term, notwithstanding the premises in the meantime are destroyed by fire.” The rule, it is said, grew but of a custom founded ripon the consideration that, as the destruction is usually by means of an accident for which neither lessor nor lessee is responsible5 it is but equitable to divide the loss, and, as the lessor must lose the property, the lessor should lose the term, and the further reason that exemption, from loss would tend to make the tenant less careful, and that the public, as well as landlords, is interested in the prevention of destruction of buildings by fire. But whether the rule is believed to be well founded or ill founded, its existence is not open to question.

This being the rule governing the subject about which the parties were negotiating, the further inquiry is as to the effect of the provision of the lease abridging the lessee’s liability, which is a virtual incorporation of section 4113, Revised Statutes. And here we must keep in mind that where it is attempted to abrogate or modify a well established rule of the common law by statute, or by a provision in a contract, the scope should not be extended beyond the plain import of the words used, where reasonable effect can be given to the amendment without such extension. That provision is that, in case any building should be destroyed or injured by the elements or other cause so as to be unfit for occupancy, without any fault or neglect on the part of the lessee, he should not be liable to pay rent after a surrender of possession. It is thus shown that the parties had before them the subject of the lessee’s liability in ease of destruction of the buildings, and undertook to stipulate with reference to that contingency. They also had before them the "fact that the lease required the lessee to pay each month’s rent in advance, which would naturally suggest a condition in which there might be a destruction of the buildings after the payment and before the expiration of the month. In this situation they selected the terms in which the exemption from liability should bé couched, and, in distinct language, limited that exemption to exoneration of the lessee from payment after the surrender, leaving, as it seems to us, a plain inference that where paid before the surrender, the ordinary rule would apply. The proposition now is, that the court should add to this expressed exemption additional words which the parties did not see fit to place in the contract, giving a cause of action to recover back a portion of the rent paid. It is the old story of a party asking a court to do for him that which he had the opportunity to do for himself, but failed to improve it. This lessee was in a position where, if it had been at the time of the making of the contract, agreed that he might reserve a right to recover money that had been paid, suitable words, looking to that end, might have been incorporated in the lease. He did nót so protect himself as to advance payments, but was content to stop short of it. How can a court, acting reasonably, now help him? It is the court’s province to enforce contracts, not to make them. There are two parties to the contention. How can the court say that if further exemption f romliability had been demanded it would have been acceded to by the lessor? Surely we cannot, and the latter, has a right to stand on the contract as it was made, and not be required to accept a. contract which the lessee now wishes he had obtained.

As to the monthly installments the contract is entire, and we think that where an installment was once paid, in conformity with the terms of the contract, it became the money of the lessor absolutely, and was not subject to be recovered back at the election of the lessee.

The precise question has not heretofore been before this court, and but little light is thrown upon it by consulting adjudications of other courts. Attention has been called to several cases in Massachusetts, which counsel of each party insists sustain his position. We incline to think their tendency is in support of the judgments below, but we are not content to follow them.

Our conclusion is, that in the construction of this lease the courts below were in error, and this leads to a reversal of the judgments, and to judgment for plaintiff in error.

Judgments reversed.


author: Burket,. J.

text:
    Alter v. City of Cincinnati et al., and Ampt v. City of Cincinnati et al.

      Mtmcipal corporation — Powers of —Cannot own or unite property with that of individual or corporation — Water rent and water works acts of April 1896 — Invalidity of section 8 of latter act — Constitutional law.

    1. Under section six of article eight of the constitution, a city is prohibited from raising- money for, or loaning its credit to, or in aid of, any company, corporation, or association ; and thereby a city is prohibited from owning part of a property which is owned in part by another, so that the parts owned by both, when taken together, constitute but one property.
    2. A city must be the sole proprietor of property in which it invests its public funds, and it cannot unite its property with the property of individuals or corporations, so that when united, both together form one property.
    3. Section eight of the act of April 24, 1896, entitled “An act to provide for water-works purposes in cities of the first grade of the first class, ’ ’ 92 O. L., 606, is unconstitutional, being in conflict with section six of article eight of the constitution. The remainder of the act, not depending upon said section eight, is a valid statute.
    4. The act of April 24, 1896, entitled “An act to prescribe the purposes for which water rents may be assessed and collected in cities of the first grade of the first class, ” 92 O. L., 605, is a valid statute.
    (Decided February 2, 1897.)
    Error to the Circuit Court of Hamilton county.
    The petitions in these cases were filed on the same day in the court of common pleas of Hamilton county. Mr. Alter, a taxpayer, brought his action to test the constitutionality of the act of April 24, 1896, entitled “An act to provide for water-works purposes in cities of the first grade of the first class,” 92 Ohio Laws, 606. Mr. Ampt, also a taxpayer, brought his action to test the constitutionality of the same act, and also to test the constitutionality of the act passed the same day, entitled “An act to prescribe the purposes for which water rents may be assessed and collected in cities of the first grade of the first class,” 92 Ohio Laws, 605; and he claimed in his petition that both acts should be read together as one act. In the proceedings the first named act is known as the water-works act, and the second as the water rent act.
    The court of common pleas held the water-works act to be unconstitutional, and the city took an appeal to the circuit court, and held the water rent act to be constitutional, and Mr. Ampt appealed.
    The circuit court held both acts to be constitutional, and thereupon petitions in error were filed in this court, seeking to reverse the judgments of the circuit court.

      W. M. & F. O. Ampt; Theodore Horstma/n and O. B. Matthews, for plaintiffs in error.
    Brief of W. M. c& O. F. Ampt.

    The water-works law is peculiar in the fact that in terms and words it does not direct the water works commissioners to build new works — all mandatory words and phrases are studiously omitted, indeed, suspiciously omitted, by the drafter of the act, who evidently intended to obviate the tendency of courts to condemn mandatory legislation in local affairs. Lessee v. Black-man, 8 Ohio, 19; Sefford v. Beaty, 12 Ohio St., 194; Bouvier, Title “May;” 14 Am. and Eng. Enc., 979; Pope v. Pollock, O. G. C., 347; Campbells. McCormick, 1 O. O. 0., 509, 510; Schuyler Co. v. Mercer Co., 5 Cowen, 24.
    We claim that the water-works law is mandatory as against Cincinnati in compelling it to bear a burden which it may not wish to assume at the present time, and we rely upon the recent decisions of this court in road cases — ordering by law roads to be built in remote townships without consulting local auhorities. State v. Comissioners (Paddock road case), 54 Ohio St., 333; Hixson v. Bur son, 54 Ohio St., 470; Bailey v. Mayor, 3 Hill, N. Y., 531.
    The right of local self government is violated by the water-works law for the additional reason that a debt may be imposed upon the' city of Cincinnati to the extent of $6,500,000 without the consent of the city, its council or its citizens, and even without consultation with them or any of them. Cooley’s Con. Him., 6th ed., 47, P. IV, 207, 281, P. Ill, and notes, 288, Dillon’s-M. C., section 72, 3d ed-; People v. Hthrburt, 24 Mich., 44, 87, 97; People v. Detroit, 28 Mich, 228; People v. Solomon, 51 111., 37, 58; People v. Mayor, 51 111., 17; People v. Batchelder, 53 N. Y., 128. Also, 53 Illinois, 302, Affd.; 59Illinois, 155; 53 Illinois, 33; 55 Illinois, 133; 57 Illinois, 145; 61 Illinois, 218; 77 Illinois, 505; 84 Illinois, 461; 31 Vermont, 226. The Ohio" eases are not against this view. State v. Smith, 44 Ohio St., 349.
    We claim section 8 is void because mandatory and administrative, and in the following particulars:

      (1) As requiring an “entirety” contract.
    (2) As requiring lease to be taken by the city from the construction company.
    (3) As requiring the commissioners in this lease to fix terms, conditions and price of purchase.
    (4) As requiring an exclusive right to be given to the construction company to connect the new works with the city’s old works, or such portion of the old works as may be retained for water-works purposes, thus also tending- to create a monopoly» We claim that section 8 is also void.
    (5) As providing a rule for bidding on public work which is at variance with the general law on the subject, thus making a law which should be general lack uniform operation throughout the state, and which in its operation discriminates against our citizens.
    (6) And further void as enabling a municipality to use its credit and property in aid of a constructing company. Taylor v. Commissioners, 23 Ohio St. 22; Zanesville v. Crossland, 8 O. C. C., 625; Riverside, Ó. O. C., 12;- Wysearver v. AtMnson, 37 Ohio St., 80; Quinoy v. Bull, 106 111., 337; Brady v. Bayonne, 30 Atl., 968.
    In word, this water rent law permits the collection of water rents from such occupants in the first place in a sufficient amount to pay a proper price for water, and secondly, an additional amount to pay the cost of building either new works absolutely, or '“a material enlargement, ' extension, improvement or addition to the existing works.” The rate is to be assessed “upon all tenements and premises supplied with water,” the B. of A. to fix an equitable rate of aportionment, and this may be according to the amount of water consumed, or likely to be consumecl, or according to the size or value of the house. Whether the owner or the occupant is the one to pay the rent, it is none the less a tax, being payment exacted by the city for the public service it renders in forcing the water through its water pipes, and thus delivering it into the house and comes, within the rule laid down by Cooley Con. Lim. 6th ed., 611; Falke Case, 42 Ohio St., 638; Rosche Bros. Case, 50 Ohio St., 103; Steinkamp Case, 54 Ohio St., 284.
    Brief of Theodore Ilorstmcm, attorney for Franklin Alter, plaintiff in error.
    By reason of section 6, article 8, of the consittution, there are five things which a county, city, town or township cannot be empowered to do, namely:
    (1) It cannot be authorized to become a stockholder in any joint stock company, etc. (2) Nor to raise money for any such company, etc. (3) Nor to raise money in aid of any such company, etc. (4) Nor to loan its credit to any such company, etc. (5) Nor to loan its credit in aid of any such company, etc.
    This section of the constitution is very learnedly discussed in Taylor v. Commissioners of Boss County, 23 Ohio St., 22; State exrelv. The Judges, 21 Ohio St., 1; Walker v. Cincinnati, 21 Ohio St., 76.
    Municipal corporations possess a double character; one governmental, or public; the other proprietary, or private. 1 Dil. Mun. Corp., section 66; People ex rel. v. Common Council of Detroit, 28 Mich., 228; State v. Commissioners Perry County,. 5 Ohio St., 497; Western College v. City of Cleveland, 12 Ohio St., 377, approved in 91 U. S., 551. See also, the well-known case of Baily v. Beto York.

      The act is unconstitutional because it disqualifies citizens from holding office by reason of political opinions they entertain, or reputed to entertain.
    In City of Evansville v. State, 118 Ind., 420, 423, the court passed upon the precise question here involved. Cooley’s Constitutional Limitations (5th ed.), 483; Broion v. Hayioood, 4 Heisk., 357; Laugh-tan v. Commonwealth, 79 Va., 196 (52 Am. Rep., 626); Attorney General v. Board, 5 Am. Rep., 675. See also People v. Hurlburt, 24 Mich., 44-93; 58 Mich., 213, Atty. Geni. v. City of Detroit; 15'Md., 379-466, Mayor of Baltimore v. State. ' In 19 Am. & Eng. Enc. of Law, 398 ; 53 Albany Law Journal, 310; 118 Ind. 449; 124 Ind., 514.
    Points made in oral argument by G. B. Matthews, for plaintiff in error.
    The water-works act of the city of Cincinnati, 92 Laws, 606, is obnoxious to the constitution of the state.

      First — Because it is compulsory legislation with reference to a proprietary right of a municipality.

      Mount LLope Cemetery Company v. Boston, 23 Ñ. E., 695; Cooley’s Constitutional Limitations, (6th ed.), 223, 226, 284 and 288; Beach on Public Corporations, 724.

      Second — The act is invalid because it is special legislation with reference to a general subject. Parker v. City of Neioark, 30 At., 186; Dao'cy v. Scon Jose, 104 Cal., 642; Pittsbw^gh v. Hughes, 13 Pa. Co. Ct. Rep., 535 -,-Philadelphia n. Cemetery Company, 162 Pa.. St., 105; Alexander v. City of Elizabeth, 28 At., 51. Among others, the following Ohio cases: Cincinnati v. Steinkamp, 54 Ohio St., 284 ; State v. Commissioners, 54 Ohio St., 333; State v. Baker, 55 Ohio St., 1; Hayes v. Cleveland, 55 Ohio St., 117; Atoic v. Davis, 55 Ohio St., 15. Also Gardner v. City of Chester, 2 Pa. Dist. Rep., 162; Water-ioorks v. Atlantic City, 39 N. J. Eq., 367; Same case, 44 N. J. Eq., 427; ----v.-, 82 Wis., 374.

      Third — Section eight of the law is -invalid because it confers the power of eminent domain on the city to be used for private purposes, and permits a loaning of the credit of the city to a private individual or corporation. Colbu/rn v. Bailroad Company, 94 Tenn., 43.

      Frederick Ilertenstein, Corporation Counsel, and Paxton, Warrington <& Boutet, for defendant in error.
    I. The only standard recognized in Ohio for testing the validity of an act of the legislature is the constitution. The only standard of public policy and even of natural justice recognized in our state, after the general assembly has within the language and intent of the constitution declared one, is that found in the legislative acts. Probasco v. Baine, Auditor, 50 Ohio St., 378, 390; State exrel. v. Cincinnati, 19 Ohio, 178; Walker v. Cincinnati, 21 Ohio St., 14; State ex rel. v. Smith, 44 Ohio St., 348.
    II. Every act of the general assembly is supported by a strong - presumption of validity. No statute, whose subject matter is of a legislative character, can be judicially declared invalid, unless it clearly and incontestibly violate some express or necessarily implied provision of the constitution. The slightest doubt of invalidity is the certain sign of validity. McCormick v.
      Alexander, 2 Ohio, 65; Zeiois v. McElvaine, 16 Ohio, 347; C. W. & Z. B. B. Go. v. Clinton Go., 1 Ohio St., 77; Lehman v. McBride, 15 Ohio St., 573; State ex rel. v. Cincinnati, 20 Ohio St., 18 ; 21 Ohio St., 14, 42; Western Union lei. Go. v. Mayer, 28 Ohio St., 521; State v. Eendle, 52 Ohio St., Walker v. Cincinnati, 346.
    III. We maintain the water rents which as here are to be collected only of water consumers, are not taxes, but are charges voluntarily assumed and consequently founded on consent; and that the board of administration is a municipal agency which was, prior to the passage of the disputed acts, accustomed . to the exercise of important legislative power, including that of' taxation, with the approval and consent of the people of Cincinnati.
    The owner of property who is not a consumer but who can thus be made liable is chargeable with notice of this provision, and therefore as consenting to pay. Anderson v. Brewster, 44 Ohio St., 576, hot. ’ p. 580 and hot. p. 584; Provident Institution v. Jersey City, 113 U. S., 506. Such owner is consequently to be treated precisely the same as a consumer.
    Are water rents which are chargeable only to consumers, taxes? Cooley, in his work on Taxation, 1, defines taxes. At page 199, the author states the purpose of revenue or tax laws. Bourroug-hs, section 4; Hilliard, section 22; Bailroad Go. v. Commissioner, 1 Ohio St., 102; Schovil v. CiPy of Cleveland, 1 Ohio St., 136; Boa/rd of Education v. State, 51 Ohio St., 539; Anderson v. Brewster, 44 Ohio St., 581.
    The leading ideas which we wish to impress by these quotations are the compulsory nature of the charges without respect to any definable corresponding benefit, and. the unlimited extent to which they may be imposed. Taxes are enforceable charges, no matter whether there be appreciable benefit given in return or not. The right to levy and collect them is as broad as the public needs. Wagner v. Gity of Booh Island, 146 111., 139. Vreeland v. Jersey Gity, 43 N. J. L., 135; Veeland v. O'Neil, 36 N. J. Eq., 399; Yreeland v. jersey Gity, 37 N. J. Eq., 574; Provident Institution v. Jersey City, 113 U. S., 506. The same distinction is made in New York. Bemsenv. Wheeler, 105 N. Y., 573; Matter of Trustees of Union College, 129 N. Y., 308; Silkman v. Water Commissioners of Gity of Yonkers, 54 N. Y., 81; Allen v. Drew, 44 Vt., 174; The Northern Liberties v. St. John's Church, 13 Pa. St., 104; Cooley on Taxation, 2d ed., 620.
    In Diete v. Gity of Cleveland, recently affirmed in Hayes & Son v. Gity of Cleveland, 55 Ohio St., 117, this court sustained an act passed April 27, 1896 (92 Ohio L., 704), authorizing cities of the class and grade of Cleveland to issue $1,500,000 of bonds for water-works purposes, and requiring the sum, principal and interest “to be paid out of the receipts of the water-works.”
    The same policy exists in other states. For example, Massachusetts — 8 Mass. Spec. Laws, 1838-1848, p. 624, section 11; Id. 1860-65, p. 514, section 6; lb. 591, section 13 ; New York — Rev. Stat. of N. Y., Banks & Bros., 9th ed., vol. 3, p. 2399, section 15; New Jersey — Gen. Stat. of N. J., ed. 1896, vol. 1, pp. 651-2, par. 920, see. 3: also Gen. Pub. Laws, N. J., 1876, p. 372, section 12; also Spec. Pub. and Priv. Laws, Session of 1871, p. 1132, section 83; Indiana — 22 Ind. Rev. Statutes, 1894 (Burns), p. 518, section 4261; Illinois— 1 Starr & Curtis’ Annotated 111. Stat., p. 864, par. 447 ; after so providing for cost of construction, surplus authorized “to be applied as council or board of trustees may direct;” Missouri — 1 Rev.Stat. of Mo., ed. 1889, sectioi 1172, p. 348; Nebraska — Compiled Stat. of Neb., ed.' 1895, p. 265, section 91; and Wisconsin — 1 Annotated Stat. of Wis. (Sandborn & Berryman’s), section 98, p. 570; Elster v. Springfield, 49 Ohio St.,'97; Meriwether v. Garrett, 102 U. S., 472.
    It has been the policy of the legislature for years to vest in the board of administration and its predecessors, in cities of the-first grade and class, extensive legislative power relative to municipal obligations, to taxation, and to assessments, no matter whether the members of the board were elected or appointed. Board of Education v. Sicote, 51 Ohio St., 538; Toledo Bank v. Bond, 1 Ohio St., 623, last par. of syl. 699; Merixoether v. Barrett, 102 U. S., 472, par. 3 of syl.
    IV. The claim that consent to municipal improvements can be given only by the councils or the citizens, is in direct conflict with Ohio decisions. Scheer v. City of Cincinnati, 14 W. L. B., 87; City of Cincinnati v. Street By. Co., 36 W. L. B., 300: Meriweather v. Gcm-ett, 102 U. S., 472; Toxon of Mcwietta v. Fearing, 4 Ohio, 432; Toledo Bank v. Bond, 1 Ohio St., 645.
    Cities and villages are distinguished from counties and townships, touching the “survival” of a “system of’local self-government,” so far certainly as the power of the legislature to prescribe the agencies and vest in them power to bind the localities is concerned. Sicote ex rel. v. Commissioners of Hamilton County, 35 W. L. B., 213, at 214 ; Baker v. City of Cincinnati, 11 Ohio St., 542;
      State v. Covington, 29 Otilo St., 113; State exrel. Herron v. Smith, 44 Ohio St., 372; State v. Baughman,, 38 Ohio St., 455, 461; Ntofe v. Constantine, 42 Ohio St., 437, 442; Niafe c¡r re/. Herron v. Smith, 44 Ohio St., 348; d'zto/e v. Cincinnati, 52 Ohio St., 419; Matter of Board of Public Works, Í44 N. Y., 440.
    V. Nothing can be done under the water-works law toward either the construction of water-works or their enlargement and improvement, unless it originate in the voluntary consent of the board having charge of the municipal water supply. The water-works law in this regard, not to. speak of other portions at this moment, is clearly both in form and substance merely permissive, not mandatory. Minor et al. v. Bank, 1 Pet., 46; Julius v. Lord Bishop of Oxford, L. R., 5 App. Cas., 214; Sifford v. Beaty, 12 Ohio St., 194.
    VI. The water-works law, in its form and essence, is legislative, not administrative.
    It is settled that the legislature can by m andatory statute compel any of the state political subdivisions to provide for paying their just obligations, and to pay them. Board of Education v. State, 51 Ohio St., 531; Lew Orleans v. Clark, 95 U. S., 644.
    If the commissioners were m their discretion to adopt the plan mentioned in section 8, instead of that named in section 7 of the act, still they are merely “authorized to contract” for the proposed improvement “as an entirety * * * and .for
    the exclusive privilege of connecting” the improvement “with the existing water works” section 8.
    But even if this were so, the section 8 could not be ' declared invalid for that reason; because (1), it is plainly discretionary with the commissioners either to resort or not to resort to the plan authorized by section 8, and (2), it is settled that the legislature has power to provide for the making of exclusive grants, the only question in any case being whether it has clearly done so. State ex rel. v. Ginti. Gas Light eft Golee Co., 18 Ohio St., 262, syl. 2; Newton v. Board of Comrs. of Mahoning Co., 26 Ohio St., 626, par. 2; State ex rel. v. City of Hamilton, 47 Ohio St., 71.
    VII. Section 8 properly construed authorizes the creation of no other or different relation from that of employer and employe, and ultimately of lessor and lessee; the city as employer furnishing, sites for improvements and the employe as contractor constructing them; and the contractor becoming finally the lessor and the eitjr the lessee with privilege of purchasing only such improvements as shall be constructed. Trustees of C. S. By. v. Llaas, 42 Ohio St., 239; Same v. Handy, 9 W. L. B., 32.
    In what way can it fairly be urged that the city would in this manner aid the contractor and prospective lessor? The city would not “raise money for” him. The city would not “loan its credit to” him. He would do these things for the city. Walker y> Cincinnati, 21 Ohio St., 54; Wyscaver v. Atkinson, 37 Ohio St., 96. A system of water works is a publiq enterprise. State ex rel. v. City of Toledo, 48 Ohio St., 112.
    This cannot be a loaning of credit or giving of municipal aid. Brady v. Bayonne, 39 Atl. Rep., 968, at left col. 969; also N. J. Laws of 1888, 366; also section 19, art. 1, p. xxxiv, of N. J. Const, as amended in Rev. Stat. of N. J., ed. of 1709 to 1877; The City of Cincinnati v. Julius Dexter, 55 Ohio St., 93.

      But even if section 8 were declared to be invalid, the rest of the statute could not be declared void for that reason.
    ■ The water-works law enacts by different sections two complete and unconnected modes for executing the power to construct or enlarge and improve water-works, and vests in the commissioners the right to select and carry into execution either of these modes. Constitutional severability of such an act is clear. B. B. Go. v. Oomrs., 31 Ohio St., 338, 343; Boioles v. State, 37 Ohio St., 35; States. Frame, 39 Ohio St., 399, 411; Treasurer v. Bank, 47 Ohio St., 504, syl. 3.
    VIII. Both the water-works and water rents laws are general in form, not special. Their classification of the municipalities affected conforms with • the rule now established as to general laws and laws of a general nature. State ex rel. Atty Geni v. Baker, 55 Ohio St., 1; Ilayes db Sons v. Gity of Cleveland, 55 Ohio St., 117.
    IX. The commissioners are not officers within the meaning of section 20, article II of the consti. tution requiring the general assembly to “fix the term of office and the compensation of all officers.”

      (a) As to the commissioners not being officers etc: Walker v.< Cincinnati, 21 Ohio St., 50 ; Gleason v. Cleveland, 49 Ohio St., 431.
    (5) As to the provision for political qualification, and its directory character: Commonwealth

    v. Plaisted, 148 Mass., 375; Rogers v. Common Council of Buffalo, 123 N. Y., 173; 2 Beach Pub. Cor., section 1309, and note; Albany L. J., May 16, 1896, 310.
   Burket,. J.

The water-works act authorizes the appointment of commissioners of water-works by the governor of the state in cities of the first grade of the first class, upon request of the board of such city having charge of the water supply, and for the construction of water-works, or the enlargement, extension and improvement of existing water-works by such commissioners, at a cost to the city of not exceeding six millions five hundred thousand dollars, for which bonds are to be issued by such commissioners, to be secured by a lien upon the water-works property then owned, and thereafter acquired by such city, and upon the net income of the water-works, and by a pledge of the faith and credit of such city.

The water-works, when so constructed, or enlarged, extended and improved, are to be owned and operated by the city for the benefit of its inhabitants.

After providing for the appointment and qualification of said commissioners, and prescribing their duties and powers, and providing as to plans, surveys and specifications, so as to secure an abundant supply of pure water, there is contained in said act section six, which is as follows:

“Section 6. Said commissioners are authorized to acquire by purchase or by the proceedings hereinafter mentioned, in behalf of such city, all real and personal property and franchises necessary for the proper construction of water-works, if there be none existing, and for the enlargement, extension, improvement or addition to existing water-works; and whenever, for such construction or the completion of any part or parts of such enlargements, extensions, improvements or additions, it shall be necessary to use or occupy any street or other public way, space, park or ground, or any part thereof, belonging to such city, or to cross any stream under the control of the state, said commissioners may take and use or occupy the same on behalf of the city for such purposes; and whenever it shall be necessary, in the opinion of said commissioners, to appropriate any land, turnpike, highway or franchise of any description, or any easement or interest in any of the same, in order to carry out the purposes set forth in this act, either within or without the limits of such city, or, whenever, for like reason, it shall be necessary, in the opinion of said commissioners, to appropriate land for the foundations or abutments of piers across any stream within this state, said commissioners are authorized to commence and conduct, in the name of such city, proceedings therefor under and according to chapter 3, division 7, title 12, of the Revised Statutes, and the acts amendatory and supplementary thereto, and no concurrent action of any board or officer shall be necessary; and all the powers with respect to such proceedings that are now vested in any other board or officer, shalL be vested also in and may be exercised by said commissioners. ’ ’ •

Section seven of the act prescribes the manner of proceeding by said commissioners in the construction, or enlargement, extension and improvement of water-works for the city, to be owned and operated by it.

Section eight is as follows:

“Section 8. If said commissioners should deem it inexpedient or inadvisable to proceed under section 7 of this act, then, in order to provide for the construction of water-works, if. there be none existing, or for the enlargement, improvement or addition to existing water-works, said commissioners are hereby authorized to contract, in the name of the city, with any person, company, or corporation, their successors or assigns, for the construction of such works, or such enlargements, extensions, improvements or additions, as an entirety, in accordance with the surveys, plans and specifications that may be adopted, and for the exclusive privilege of connecting such enlargements, extensions, improvements, or additions to the existing water-works, and for a lease on behalf of such city of such water-works of such enlargements, extensive improvements or additions to the same, from the person, company or corporation, their successors or assigns so constructing the same, upon such terms as may be agreed upon, and may by said contract or lease pledge the income of such water-works as so constructed . and enlarged, to secure the payment of the rentals provided in said lease. And said commissioners are hereby authorized to convey to such person, company or corporation, their successors or assigns, any property or rights acquired, or which may become necessary to acquire, under the provisions of section 6 of this act, or authorize the use of any property which may be necessary to enable the said person, company or corporation, their successors or assigns, to complete the construction or enlargements, extensions, improvements or additions to existing’ water works, upon such terms and conditions as may be ag’reed upon; provided, however, that no such lease shall be made for a longer period than forty years, renewable forever, with the right reserved to said city, upon six months’ notice in writing, at the end of each period of ten years, or at such shorter period as may be agreed upon during the term of said lease, to purchase said water-works, or the enlargements, extensions improvements, and additions to the water-works,, under -such terms and conditions as may be agreed upon in said contract; and provided, further, that* in making such contract, said commissioners shall be governed by all the statutes now in force relative to competitive bidding, and the making of contracts. And provided further, that if said commissioners enter into said contract and lease, as herein provided for, then said work shall be operated, managed and conducted by such city as provided bylaw.”

The serious question is, whether this section eight is constitutional. Section six of article eight of the constitution is as follows: “The general assembty shall never authorize any county, city, town or township, by vote of its citizens, or otherwise, to become a stockholder in any joint stock company, corporation or association whatever, or to raise money for or loan its credit to, or in aid of, any such company, corporation or association.”

The full scope of this section of the constitution has not yet been determined by this court. In Walker v. The City of Cincinnati, 21 Ohio St., 15, the court says: “The mischief which this section interdicts, is a business partnership between a municipality, or subdivision of the state, and individuals or private corporations or associations. It forbids the union of public and private capital or credit in any enterprise whatever.”

In Taylor v. Commissioners of Ross County, 23 Ohio St., 22, the court, on page 78, say: “And if it shall be deemed wise and economical to authorize municipalities, who own water-works or gas works, to lease them as a means of supplying the public needs, we know of no constitutional impediment. But this is a different thing from investing public money in the enterprises of others, or from aiding them with money or credit.

“In one case, the whole proprietary interest is in the public, and its authority is paramount, while in the other the reverse is true.”

This section of the constitution not only prohibits a “business partnership,” which carries the idea of a joint or undivided interest, but it goes further and prohibits a municipality from being the owner of part of a property which is owned and controlled in part by a corporation or individual. The municipality must be the sole owner and controller of the properly in which it invests its public funds. A union of public and private funds or credit each in aid of the other, is forbidden by the constitution. There can be no union of public and private funds or credit, nor of that which is produced by such funds or credit.

The whole ownership and control must be in the public. The city may lease from an individual or corporation any property of which it may need the use, or having property the use of which it does not need, it may lease the same to others, but it cannot engage in an enterprise with an individual or corporation for the construction or erection of a property which, as a completed whole, is to be owned and controlled in part by the city, and in part by an individual or corporation.

The sixth section of the act contemplates, that the plans, surveys and specifications having been agreed upon, the commissioners shall select the site and acquire the necessary real and personal property and franchises, by purchase or appropriation for the construction of water-works, or for the enlargement, extension or improvement of existing water-works, together with the right to use and occupy any street or public ground and cross any stream, in short to get everything ready to proceed to the construction, or enlargement of water-works under section seven of the act. Everything being thus in readiness, and having been acquired by the commissioners with the public funds of the city, the eighth section provides that if said commissioners should deem it inexpedient, or inadvisable to proceed under said section seven for the construction or enlargement of water-works, said commissioners may contract in the name of the city with any person, company or corporation for the construction or enlargement of such water-works, as an entirety, in accordance with the surveys, plans and specifications adopted, and for the exclusive privilege of connecting such enlargements with the existing water works, and for the lease of such works or enlargements bjr the city from the owners upon such terms as may be agreed upon.

It will be noticed by a careful reading of section eight, that the water-works and the enlargements will be owned by the person, company or corporation constructing them, that the existing water works are owned by the city, that to these water works so owned by the city, an individual or corporation may make enlargements, extensions, improvements and additions to be owned by the person or corporation making them, and to be connected with the existing works, and to be leased to the city upon such terms as may be agreed upon. When the enlargements, extensions, improvements and additions shall be thus made, completed and connected with the existing water-works so owned by the city, the enlargements, extensions, improvements and additions, together with the existing works, all taken together, will constitute one completed whole — one waterworks system, one water-works — owned in part by the city, and in part by the individual or corporation, and thereby the union of public and private capital and funds in one enterprise will become complete.

The provision that the works shall be operated, managed and conducted by the city, does not relieve the matter, because before the city can operate the works, it must first obtain a lease upon such terms as may be agreed upon, and that puts it beyond the power of the city to operate and control the works as sole proprietor.' It would be a joining of- two. properties owned by different parties, together, to make one property, the parts owned by each being- necessary to the successful operation of the whole, and each owner having his say as to the terms and conditions upon which the whole should be operated. The existing water works would be so tied to the extensions as to be dependent upon them, and the extensions would be so tied to the existing works as to be of but little value without them. It is this close connection and dependence one upon the other that constitutes both together as a single whole, and makes a union of public and private funds and credit. The existing works are to be connected with the new improvements, and are thereby to lend aid to the person, company or corporation making and owning such new improvements.

The case is not like a city leasing a building or water-works plant owned by another, because in such case the leased property, would stand upon its own merits, and would not, before or after the lease, become merged into the other property of the city so that the whole would become one property, and make the property of the city dependent upon the leased property for its value and utility.

Whether the city has the right to appropriate private property, for the sole purpose of selling the same to a private person, company or corporation, as provided in the sixth and eighth sections, may well be doubted.

We regard the eighth section of the act as clearly in conflict with section six of article eight of the constitution, and therefore void.

The remainder of the act, in so far as it does not depend upon section eight, is a complete statute in itself, and not in conflict with any provision of the constitution. The reasons for so holding are sufficiently stated in the opinion of the circuit court in this ease, reported in 12 Circuit Court Reports, 119.

As to the water rent act, it is sufficient to say that the general assembly has full power to legislate upon the subject, and provide the purpose to which the water rent shall be applied, and there is no injustice in applying the water rent to aid in the construction of the water-works, and the power to do so is certainly ample. Water rents are not, strictly speaking, taxes, and certainly not taxes on property to be regulated under article twelve of the constitution. Whether this statute applies water-rents to general revenue, as urged by counsel, is doubtful, but, even if it does, the act is not thereby rendered unconstitutional. In raising general revenue, all property must be taxed, except such as may be exempted under section two of article twelve, but this does not prohibit the legislature from procuring general revenue from sources other than taxation on property. The State ex rel. v. Ferris, 53 Ohio St., 314. The judgment in the water rent case should be affirmed and the judgments in the water-works cases should be so/modified as to grant the injunctions prayed for as to proceedings under section eight of the act, and to refuse the injunctions as to the remainder of the act.

Judgment accordingly.


author: Williams. C. J.

text:
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Sheppard.

      Common carrier — Cannot limit liability by special agreement— Law governing contract made in one state and to be performed in another — Evidence of pedigree of horse competent as affecting its value — Published record as evidence — Expert testimony.

    1. It is the settled law of this state that a common carrier cannot, by special agreement, relieve himself from responsibilitv for his own negligence, nor limit his liability for losses resulting therefrom.
    2. A contract made in one state or country to be performed in another, is governed by the laws of the latter, which determine its validity, obligation and effect.'
    3. Where a railroad company receives live stock in another state, under a contract there made, to transport it to a designated place in this state, and while the stock is being carried in this state it is injured by the company’s negligence, the rights of the parties, in an action for damages for the loss, are governed by the laws of this state, and not by those of the state where the contract was made.
    4. In an action to recover the value of a trotting horse, evidence of his pedigree, and that some of his blood relations have a record for speed, is competent as affecting his value.
    5. When such record is published by authority of a recognized trotting association, and thé publication is accepted and acted upon by those interested in and conversant with such matters, as authentic and official, it is not error to admit evidence of,the horse’s speed as shown by that record: but the testimony of a witness to information he claims to have obtained from the record is incompetent.
    6. One who for ten years has made car building his business, and given special attention to car wheels, and their construction, is competent to give an opinion of the value, of the hammer test as a means of discovering defects in car wheels.
    (Decided February 2, 1897.)
    Error to the Circuit Court of Franidin county.
    Sheppard delivered to the Terre Haute & Indianapolis Railroad Company, at Lovington, in the state of Illinois, a car load of horses which that company agreed to transport over its line to Indianapolis, Indiana, and there deliver them to plaintiff in error for carriage to the city of Columbus, Ohio. The contract with the former company is in writing-, and contains a stipulation that, ‘ ‘in case of any loss or damage, the liability of said company and of any connecting line shall not exceed $100 per head. ’ ’ The horses were safely delivered to the plaintiff in error, at Indianapolis, and received by it in good condition; but while being transported over its line in this state, a defective wheel of one of the cars in the train gave way, in consequence of which, one of the horses was killed, and the others were injured. Sheppard brought suit in the court of common pleas of Franklin county, against the plaintiff in error for damages, alleging that his loss was occasioned by the company’s negligence,
    The company denied negligence on its part, and pleaded the stipulation in the contract, above set forth, as a limitation on its liability, averring that the contract was made in the state of Illinois, where, under the law of that state, such stipulation is valid'. Issue was joined on the allegations of the answer, and on the trial evidence was given by both sides tending to prove what the law of Illinois on the subject was when the contract was mad'ec The plaintiff recovered more than the amount limited by the contract, and that judgment was affirmed by the circuit court. The railway company prosecutes error here to obtain the reversal of both judgments. A further statement of the facts pertinent to the questions raised* will be found in the opinion.

      Watson, Burr <& Livesay and F. M.- Sackett, for plaintiff in error.
    That the contract was to be governed by the laws of Illinois is clear and was admitted by the trial court. Hutchinson on Carriers, sections 140-144a; First National Banky. Shaw, 61 N. Y., 283; Liverpool, etc., Steam Co. v. Insurance Co., 129 U. S., 397; Alexander v. Pennsylvania Co., 48 Ohio St., 623.
    That the law prevailing in the state of Illinois upon the subject in question was a fact to be proven on the trial like any other fact, is also clear. Alexander v. Pennsylvania Co., supra; Kline v. Baker, 99 Mass., 253; Smithy. Smith, 21 Pa. St, 317; Railroad Co. v. Morrison, 19 111., 136; Railway Co. v. Read, 37 111., 484; Oppenheimer v. Express Co., 69 111., 627; Arnold v. Raihoay Col, 83 111., 273; Adams Express Co. v. Stettaner, 61 111., 184.
    The Morrison, Read and Arnold cases, lay down the rule as it is stated in the Morrison case — “That railways have a right to restrict their liability by such contracts as may be specially agreed upon, they still remaining liable for gross negligence a.nd wilful misfeasance.” As to what words in the contract are necessary to give an exemption from negligence -nothing is said in any of the cases. They speak only of “such contracts as may be specially agreed upon,” thereby leaving the scope of the contract to the ordinary rules for the construction of contracts. The contract in the case at bar releases “from any loss or damage.”
    Apply to that the ordinary rules of construction set out in the elementary works. 2 Parsons on Contracts (7th Ed.), 632.
    It is, then, in the comprehensive, general and common sense, we must take the wording of the clause, “for any loss or damage.” "What wider term could be used? “Any” in such a connection covers all and every loss. Can it be said that the cause of the damage will restrict the meaning of this word “any?” Its natural and obvious meaning is every loss of every kind, no matter to what cause it may be due.
    But by another of the elementary rules of construction the clause is limited. It cannot apply to losses due to the defendant’s gross negligence or wilful misfeasance. 2 Parsons on Contracts, 636; D.avidson v. Graham, 2 Ohio St., 131.
    Errors in ruling upon the admissibility of evidence. „
    Mr. Sheppard placed the value of the mare “Mora” at $2,000.00 and his damages in her case at $1,500.00. The defendant claimed she was not worth more than $300 and was not injured at all, consequently the chief contest as to the damages arose in her case*.
    The plaintiff was asked to give the “time” or the “record” which had been made by these various horses, the kindred of Mora. Objection was made because the evidence was too remote and was therefore irrelevant; the objection was overruled and exception taken.
    On being examined as to how he obtained this knowledge, he testifies that the Secretary of the American Trotting Association keeps a record, and that the only knowledge of the witness on the subject was derived from reading his annual published reports. How the secretary obtained his' knowledge did not appear.
    These reports were not official records. The secretary who kept the record was not called as a witness, nor his deposition produced. There was no sworn copy from his record, nor was it made to appear that his record was entitled to credence. Much less were his unsworn published reports*, and least of all Mr. Sheppard’s oral testimony as to their contents, entitled to be admitted as evidence on any principle of law known to us. Wharton on Evidence, section 664.
    The question at issue was whether the “hammer test,” that is striking the wheels^ with a hammer to detect cracks, was a useful or valuable safeguard, in the inspection of car wheels in actual service. Our point was, and is, that connection for any number of years with the manufacture of ears, or ear wheels, would not qualify a person to speak upon this subject.
    That this was a question of peculiar skill and knowledge and therefore one for expert testimony is admitted.
    But “before a witness can be allowed to give testimony as an expert, it must be made to appear that he is an expert or experienced person in the matter concerning which he is to testify. -Rogers on'Expert Testimony, 2d. ed., section 18.

      That it was prejudical goes without saying. It was prejudical because the only witness who could be found to testify in support of plaintiff’s claim that the omission of the hammer test in actual service was negligence, was one who knew nothing about it. But the presumption is that it was prejudicial. Board of Education v. Mills; 38 Ohio St., 383.
    The prejudice was enhanced by the charge of the court. The witnesses for defendant had testified that the best inspection was by the eye. No “test” was mentioned in the testimony except this hammer test. Not a scrap of testimony in favor of it was before the jury except this given by Cox.

      J. W. Mooney, for defendant in error.
    I. The contract does not determine and fix liability of the plaintiff in error. The transportation was not thorough. B. R. Co. v. Pontius, 19 Ohio St., 236; Snyder v. Express Co., 63 Mo., 376.
    Contract of express company to forward money to the nearest point on its own line and to deliver to other parties, to complete the transportation aad liability to terminate. Held, that a carrier may make a contract to carry as far as he goes, and limit his common law liability, but not from his negligence. Rogers v. The Creed Western R. R., 32 U. C. Q. B„, 89; Express Co v. Motioned Bank, 69 Pa. State, 394; Reed v. The U. S. Express Co.; 48 N. Y., 462; Berg v. Railroad Co. 39 Kan., 561; I). (& M. Go. v. Farmers' Bank, 20 Wis., 122; JEtna Ins. Co v. Wheeler et eol., 49 N.. Y., 616; Express Co. v. Elaines, 67 111., 137; Shiffv. Reoilrocod Co.,23 Sup. Ct., 278.

      The Pan Handle was not a party to the contract. Railway Co v. Pontius, 19 Ohio St., 235; Martin v. Express Co., 19 Wis., 336.
    II. The adjudicated cases of Illinois offered iri evidence by plaintiff in error, do not sustain the allegations of its answer.
    III. Even if the contract referred to and madea part of the petition of the defendant in error fixes and determines the liability of the plaintiff in error, the law of Illinois does not govern its interpretation and validity, for the reason the contract shows upon its face it is to be performed, in so far as the plaintiff in error is concerned, in the states of Indiana and Ohio. The law of the state of performance governs the interpretaion and validity of the contract, and not the law of the place where made. Kenaga v. Taylor, 7 Ohio St., 142; Holloman v. Holloman, 7 La. An., 607; Goclin v. Shipp ly, 7 B. Mon; ,'575; Broadhead v. Hoyes, .9 Mo.,'56; Dorsey v. Hardesty, 9 Mo., 157; Cox v. TJ. S., 6 Pet., 172; Pritchard v. Horton 106 U. S., 124; Boyle v. Zacharie, 6 Peters, 635; Brown v. Railroad Co., 83 Pa. St., 316; Dyke v. Railroad Co., 45 N. Y., 113; Railroad Co. v. Smith, 74 111., 197; Barter v. ‘ Wheeler, 49 N. H., 9 ; Story, Conflict of Laws, section 280.
    V. Unless the foreign law be pleaded the presumption is that it is the same as the lex fori and in its outlines the common law. 1 Greenleaf on Evidence, section 43n and cases there cited. Holmes v. Broughton 10 Wend., 75; Swages v. HHeil 49 N. Y., 298; Flato v. Mulhull 72 Mo., 522; Hickman v. Alpaugh, 21 Cal., 225; Atkinson v. . Atkinson, 15 La. An., 491; Commonwealth v. Kenny, 120 Mass., 38n; Reese v. Harris, 27 Ala., 301.
    A common carrier, by special contract with the owner of goods intrusted to him may so far restrict his common law liability as to exonerate himself from losses arising from causes over which he had no control, and to which his own fault or negligence in no way contributed.
    But he cannot, by such stipulation, relieve himself from responsibility for losses caused by his own negligence or want of care and skill. Adams Express Co. v. Schwab, 53 Ohio St., 659; Graham v. Davis, 4 Ohio St., 362; Pavidson v. Graham, 2 Ohio St., 132; Welsh v. Railroad Co., 10 Ohio St., 65; Railroad Co., v. Curran, 19 Ohio St., 1; Railroad Co. v. Pontius, 19 Ohio St., 221; Knowlton v. Railroad Co., 19 Ohio St., 263; Express Co. v. Baehman, 28 Ohio St., 144; Gaines v. Transportation Co., 28 Ohio St., 437; Telegraph Co. v. Gris-wold, 37 Ohio St., 301; Railroad Co. v. Locbwood, 28 Ohio St., 358.
    Courts will not, through comity, enforce a contract made, in another state, if it is against the public policy of the state of the forum, and its .citizens are deprived of their rights thereby.
    This is especially true when the breach of the contract occurs in the state of the forum. Huberers 2 vol. B. 1 Tit. 3 psu 26, as given in 3 Dallas, 375.
    Ohio statute prohibits transfer of claims against a citizen of Ohio to a citizen of another state, held, not binding on the courts of West Virginia, who will give judgment. Stevens v. Brown, 20 W. Va., 450.
    Tn Hill v. Spear, the principle was affirmed, but the facts found not such as to justify its application. 50 N. H., 253; Union Loan and Express Co. v. Railway Co., 8 Brown, 23; Tappan v. Poore, 15 Mass., 419; Andrews v. Pond., 13 Pet., 65.

      Error in ruling upon the admissibility of evidence.
    Counsel for plaintiff in error assert, the court erred in admitting testimony showing the pedigree of the mare “Mora, ” for the reason the evidence was too remote and therefore irrelevant.
    The pedigree of the mare “Mora” was shown by the testimony of Mr. Sheppard. It seems that a Mr. Stiner, secretary of “The American Horseman and Trotting Association, ” has been publishing-a yearly report showing the speed of different race horses. It further appears from the testimony that this publication is recognized by all horsemen as the only authority upon the subject, and was competent to prove the pedigree of the ancestors of the mare “Mora.”
    Counsel for plaintiff in error further complain that the court erred in admitting certain parts of the deposition of the witness, Lewis J. Cox. Mr. Cox was presented as a witness by the plaintiff in error. Upon cross-examination it developed that he was vice president of the Terra Haute Car Manufacturing Company, which company was engaged in building railroad cars, that Mr. Cox had been engaged in this business for ten or eleven; years and the car wheel had been his department during this length of time.
    It is claimed by counsel for plaintiff in error that this testimony did not qualify Mr. Cox as an expert and the court erred in admitting his testimony as such. It seems too apparent for argument that Mr. Cox was qualified as an expert to speak upon the subject in controversy, since he had been engaged for ten years in building the kind of car involved in this case and had especial charge of the wheel department during that time.
   Williams. C. J.

It is not contended that there is sufficient ground for disturbing the judgments below for lack of evidence tending to prove that the negligeneé charged against the defendant was the cause of the plaintiff’s loss; but it is claimed the evidence did not establish gross or wilful negligence, and that under the law of Illinois where the contract for the transportation of the horses was made, it was competent for a common carrier of goods to limit his liability, by special agreement, except as against his negligence of that character. And the principal contention of counsel for the plaintiff in error is, that the trial court erred in its charge concerning the law of Illinois on that subject; the complaint being that the charge, in substance, was a statement of the rule established in this state, instead of that which obtains in Illinois. The parties put in evidence several decisions of the supreme court of that state to prove the law of the state, and counsel in argument seek to maintain different interpretations of those decisions favorable to their respective clients. But if the rights, of the parties are to be determined by the laws of this state, and not by those of Illinois, the charge was not erroneous or prejudicial, though given as the law of that state.

There is nothing to show that any traffic arrangement existed between the two railroad companies, nor any agency or authority of one to contract for the other; and assuming that the plaintiff in error, bjr accepting the horses from the other company, and undertaking to transport them over its line, became a party to the contract with the plaintiff below, it did so at Indianapolis; and its contract was to carry the horses from that point to their destination. No part of its performance of the contract was to take place in the state of Illinois ; aud if the carriage of the property over that part of its road which is located in Indiana could be considered as a performance having the effect 6f making the rights of the parties under the contract subject to the laws of that state, none differing from those of this state were pleaded or proven, and there is no presumption- that they were different. But if the law of Indiana were shown to be the same as that of Illinois is claimed to be, it would not be the law governing this contract. We understand the rule to be, that where a contract is made in one state to be performed in part in another, and an action is brought for a breach of that part of the contract, the rights of the parties must be determined according to the law of the latter state. Story on Contracts, section 655; Barter v. Wheeler, 49 N. H., 9. It is apparent, however, from the face of this contract that it was to be wholly performed in this state. The property was to be transported to Columbus, where the consignee was entitled to receive it from the carrier; the latter was bound to deliver it at that place. The contract could be performed by the company, nowhere -else. Carrying theproperty through a portion of the state of Indiana, did not constitute performance; that was merely a means of enabling the company to perform by delivery of the property at its destination. And the contract being silent as to the time and place of payment of the freight, it was payable” at the time of the delivery of the property to the consignee, and necessarily at the place of delivery; so that, the place of performance by both parties to the contract was in this state. And the rule is that when it appears from a contract made in one state or country that it is to he performed in another, the presumption is, that it was entered into with reference to the laws of the latter, and those laws determine its validity, obligation and effect. Kanaga v. Taylor, 7 Ohio St., 142. Other cases on this subject are largely collected in the briefs of counsel.

It is also the well settled law of this state, that a common carrier cannot, by special agreement, relieve himself from the consequences of his own negligence, nor limit his liability for losses resulting therefrom. This rule is laid down in Welsh v. Railroad Co. 10 Ohio St., 65, as follows: “A railroad company, acting as a common carrier of live stock, cannot by special contract, procure exemption' from responsibility for losses arising from its own neglect of the duties incident to such employment. Such common carrier is liable for damages resulting from defective and unsafe cars or vehicles of transportation, notwithstanding-an express contract to the contrary.” And see Davidson v. Graham, 2 Ohio St., 132; Graham v. Davis, 4 Ohio St., 362; Railroad Co. v. Curran, 19 Ohio St., 3; Railroad Co. v; Pontius, Ibid, 221; Knowlton v. Railway Co., Ibid, 263; Express Co. v. Backman, 28 Ohio St., 144; Express Co. v. Schwab, 53 Ohio St., 659.

We find no error in the charge of the court that could operate to the prejudice of the defendant below.

One of the animals injured while in transit over the defendant’s road, was a mare called Mora ; and the plaintiff was allowed to give evidence of her pedigree, showing her blood relationship to the celebrated trotting horse, Jay Eye See, and other noted horses. This evidence was objected to by the defendant, and the objection here urged against it is, that it was too remote. But the pedigree of a horse usually enters into the estimate of its value; and that of horses kept for racing purposes, is considered of importance among dealers in horses of that kind; and we think the evidence was competent as effecting the value of the mare.

For the purpose of proving the speed of Jay Eye See, and other horses to which Mora was related, in trotting and pacing', the plaintiff was permitted 'to testify to information he obtained from the annual reports of the American Trotting Association, which, it appeared, keeps a record of extraordinary speed made by horses at races held under authority of recognized racing organizations; and it further appeared that the record is issued by the association in published volumes which are accepted and acted upon by handlers and dealers in trotting, pacing and running horses, and persons interested in that kind of stock, as the authentic and official record of the speed shown by noted horses. The defendant objected to this testimony, particularly to that purporting to be information obtained by the witness from the published record. There would seem to be no serious objection to evidence of the fact that the horses had a record for extraordinary speed, nor to proof of that fact by the production of the record. It might be impracticable; if not impossible, to prove the speed of a horse by ej7e witnesses of the races, especially after the lapse of a long time. If such witness were called he could scarcely do more than testify to the speed as that was announced by the judges, or as shown by the published account; and it would become necessary for the witness to refer to the record kept by those in charge, or published under their authority. And when that record is published by such authority, and as so published is acepted and acted upon by those interested in, and conversant with such matters, as authentic and official, we see no reason why it may not be admissible whenever the original would be. The fact that there is such published record, so acknowledged and recognized, enters into the estimation of the value of the horse, and that of his descendants and relatives, among dealers in horses of that kind. The speed of the horse, if that were not generally known, might not be so important as affecting the value. But while such evidence was admissible, it was clearly incompetent for the witness to testify to information which he claimed to have obtained from reading the record as published by the Trotting Association ; and for this error the judgments below must be reversed.

Another question made, relates to the qualification of a witness by the name of Cox, who was permitted to give an opinion on the value of the hammer test as a means of detecting breaks in car wheels. The witness testified that he had been engaged in the business of building railroad cars for ten years, and during that time had given particular attention to ear wheels and their construction. The testimony was competent, its weight was for the jury.

Judgment reversed.