author: Williams, 3.

text:
    Pretzinger v. Sunderland, Treasurer, etc., et al.

      Assessment for street improvements — Territory assessed maximum amount under section §270, Revised Statutes — Is exempt under section g?S8, Revised Statutes, for five years— From assessment for improvement of another street — Assessmcnt for sidewalk is assessment for improvement of street.

      Territory wliicR has been assessed for the improvement of a street, to the maximum amount allowed by section 2270, of the Revised Statutes, is exempt, under section 2283, for the period of five years thereafter, from assessment for the improvement of another street. And, an assessment levied by municipal authority for the construction of a sidewalk is an assessment for the improvement of the street, within the meaning of the last named section.
    (Decided June 19, 1900.)
    Error to the Circuit Court of Montgomery county.
    Suit was brought by the plaintiff in error, in the court of common pleas of Montgomery county, against W. P. Sunderland, the treasurer of that county, and the city of Dayton, to enjoin the collection of an assessment levied on a lot of the plaintiff, to pay for a sidewalk which the authorities of the city had caused to be constructed along one line of the lot. The following is the petition in the case:
    “The plaintiff, Rudolph Pretzinger, says that he is the owner of that part of ontlot twenty-three on the plat of the city of Dayton, Ohio, which lies on the corner of Main street and Wyoming street, fronting 305 feet on Main Street and about 235 feet on Wyoming street. The defendant, Sunderland, is treasurer of Montgomery county, and of the city of Dayton. The defendant, the city of Dayton, is a city of the second grade of the second class. The city of Dayton, in the year 1895, paved Main street in front of the property of the plaintiff aforesaid, and assessed against it upon the tax duplicate for such paving the sum of about $950. The taxable valuation of said property at the time, as it stood upon the tax duplicate (which is the same now), was only thirty-seven hundred and thirty dollars ($3780), and the authorities of the city of Dayton, upon application, remitted the excess over twenty-five per cent, and placed against the said property the sum of $932.50, being the one-fourth of such taxable valuation, divided into ten annual installments, with interest, the unpaid portion being yet upon the premises under such assessment. In the year 1894, the city of Dayton passed a resolution to make new sidewalks on Wyoming street along the south line of the property of the plaintiff herein described, and in the year 1896 proceeded to make the same out to Main street. For the cost of making said sidewalk the said city assessed against the property aforesaid the sum of $159.90, and upon the refusal of the plaintiff to pay, it assessed a penalty of $23.16, and placed upon the duplicate for collection by said Sunderland the sum of $183.06, which said Sunderland is demanding, and will proceed to collect, if not restrained, by the sale of the property, or other process of law. The plaintiff says that, as alleged, his property has already been assessed for its full assessable value for any street improvement, and further assessment is illegal for the period of five years from the year 1895.
    Wherefore he prays for an injunction against the said Sunderland, as treasurer, to prevent him from attempting to collect the same during the pendency of this suit, and upon the final hearing for a perpetual injunction, and for costs and other relief.”
    A demurrer to the petition was overruled, and the defendants not desiring to further plead, judgment was rendered for the plaintiff as prayed for in the petition. That judgment was reversed by the circuit court, for error in overruling the demurrer; and the case was then brought on error to this court.

      McMahon & McMahon, for plaintiff in error.
    The purpose of this action was to invoke the protection of the statute providing for the limitation of assessments. Section 2283, Revised Statutes.
    The limitation of 25 per cent, is found in section 2270, qualified by section 2272.
    The plaintiff is the owner of a corner lot. The statutory limit of taxation (25 per cent.) had already been exhausted in the paving of Main street. The assessment in controversy was for the making of a sidewalk on Wyoming street. Both improvements were made within five years.
    The question presented is: Are the words of the section, “for making two different streets or avenues,” sufficiently comprehensive to cover the making of a sidewalk only?
    The word, “street,” is comprehensive. It includes sidewalk. While there may be special legislation as to sidewalks, as only a part of the street, and while streets in a limited sense may be “improved,” yet when property is condemned for the “making” of a new street the sidewalk is always contained in the property condemned or acquired. There is no provision for “sidewalks,” by that name, in section 2232. The width of the street always includes the sidewalk; and the width of the sidewalk, as a part of the street, is a matter within the discretion of the authorities having the power under the particular charter. They have the power to assign the areas to be occupied by the foot passenger and the ordinary street vehicle, and they may vary this area — having general control of the “street.”
    As to the meaning of the word “street,” and its inclusion of the sidewalk, we cite: Dooley v. Sullivan, 112 Indiana, 453; Wiles v. Hoss, 114 Indiana, 371; Burgmeister case, 76 New York, 174; Phillips case, 60 New York, 16.
    The term “street,” in ordinary legal signification, includes all parts of the roadway, the gutters, and the sidewalks. Elliott on Roads, page 17.
    Upon the principle that the greater contains the less, it would seem clear that if you could not make a new street, the cost of which would exceed the statutory limitation, you could not make a sidewalk having the same defect.
    Now bearing in mind the broad meaning, which Elliott says is the ordinary legal signification of the word “street,” it would seem clear that the circuit court erred, in view of the rule laid down in the following decisions in this court, construing section 2327, Revised Statutes. Cincinnati v. Connor, 55 Ohio St., 82; Birdseye v. Clyde, 61 Ohio St., 27.

      Edioin P. Matthews, City Solicitor, for defendants in error.
    Subdivision 1 of Chapter 4 is entitled “Assessments in General,” and comprises sections 2262 to 2314-b.

      Some of the provisions of this subdivision are applicable to sewer and sidewalk improvements, but not all of them.
    Section 2270 limits the assessment for any improvement to twenty-five per cent, of the tax valuation of the property. This provision has been held to mean any one improvement, but not to apply to two separate improvements, neither one of which equals the twenty-five per cent., but which together exceed it. Hunt v. Hunter, 11 C. C. R., 69; 5 Circ. Dec., 90.
    The twenty-five per cent, limitation has been held to apply to street paving, sidewalk and sewer improvements. Cincinnati v. Connor, 55 Ohio St., 82.
    It is under section 2283 that Mr. Pretzinger seeks to escape the sidewalk improvement.
    It is contended by the plaintiff in error that the word “street” in section 2283 may be read “sidewalk.”
    This position we do not believe is sound.
    The word “street” in its broadest sense includes everything between property line and property line, but the context of chapter -1 shows that the word “street” as used therein means the roadway.
    Under the said subdivision 1, streets or roadways may be constructed, but not sidewalks or sewers.
    Sundry of the supplemental sections of this subdivision, beginning with section 2293-a, authorize cities to improve streets, avenues or highways, by paving with granite block, asphalt, etc.
    The Dayton paving act, found in Ohio Laws, Vol. 87, page 288, authorizes street's, avenues and highways to be paved with granite block, asphalt, etc. These provisions mean roadways of streets, and do not include sidewalks.
    A law is found in volume 82, Ohio Laws, pages 122, 123.and 124, in relation to improvements around state property. Part of the act is in regard to street improvements, and section 2 makes certain provisions, with regard to sidewalk improvements. If “street” includes “sidewalks” in the sense in which it is used in the statutes, why insert provisions with regard to sidewalks?
    Subdivision 2 of chapter 4 relates to damages. Subdivision 3 is entitled “Sidewalks and Water Courses,” and the whole subdivision, except the last section, 2335, relates to sidewalks.
    Under the first and second subdivisions roadways, of streets may be paved by the city, no opportunity-being given to the property holders to do the work,, and in such cases there must be a resolution declaring the necessity of the improvement, and an ordinance afterward providing for it. It will hardly be claimed that in a proceeding to improve or pave a. street under these subdivisions or under the Dayton paving act, that the sidewalk can also be paved and the cost be specially assessed.
    Under subdivision 3, the city proceeds by merely passing a resolution providing fob a sidewalk, whereupon notice is given to the property holder, who has-thirty days in which to do the work himself, and only upon his default can the city do it, and assess the cost against his property. Section 2330, Revised Statutes.
    So far as we find any expression of the courts of Ohio in regard to the meaning of the word “street” as used in these assessment statutes, they have construed it to mean “roadway.” Hunt v. Hunter, 11 C. C. R., 74; 5 Circ. Dec., 90; Cincinnati v. Fugman, 5 N. P., 14; 5 Dec., 530; Hemmelmann v. Satterlee et al., 50 Cal., 68.

      A resolution of intention to curb and macadamize a street does not include the sidewalk. Dyer v. Chase et al., 52 Cal., 440.
    Section 2307 of the Revised Statutes provides for sprinkling streets. It will hardly be contended that under the provisions thereof sidewalks are to be sprinkled.
    Subdivision 5 of Chapter 4 provides for the construction of sewers, and the assessment of the cost thereof.
    It seems to ns that it can be urged with equal force that the prohibition of section 2283 against double assessments applies to sewers as well as to sidewalks. Manifestly it does not apply to sewers, although sewers are often constructed in a street, below the surface.
   Williams, 3.

The assessment for the paving Main street having been levied on the plaintiff’s lot in 1895, to the full amount of twenty-five per cent, of its taxable valuation, the question here presented is, whether, on that account, the lot is exempt from the assessment laid upon it in 1896, for the cost of the sidewalk constructed on Wyoming street. The exemption of the lot from that burden is claimed by the plaintiff under section 2283 of the Revised Statutes, which provides that: “Special assessments, whether by the foot front or otherwise, shall be so restricted that the same territory shall not be assessed for making two different streets or avenues, within a period of five years, in such amounts that the maximum assessment herein provided will be thereby exceeded; and so far as practicable under the provisions of this title, regard must be had in making special assessments to the probable benefits to the party assessed.” The statutory provision which fixes the amount of the “maximum assessment” referred to in this section, in municipal corporations of the class to which the city of Dayton belongs, is that contained in section 2270, as follows: “The tax or assessment specially levied and assessed on any lot or land, for any improvement, shall, in no case, * * * amount to more than twenty-five per centum of the value of the property, as assessed for taxation, and the cost exceeding that per centum shall be paid by the corporation out of its general revenue.” Certain exceptions are made to this limitation on the amount of the assessment, but the case before us does not come within any of them. So that, the assessment in controversy here, having been levied on the plaintiff’s lot Avithin five years after that laid for the paving of Main street, cannot be sustained, if both are assessments of the kind mentioned in section 2283, that is, “for making two different streets or avenuesand Avhether they are assessments of that nature, or not, is the real question in the case. It must be admitted that Avkat is meant by the language of the section “for making two different streets or avenues,” is not free from doubt. In giving construction to the section the rule must be observed, that, where there is ambiguity in a statute with respect to whether a tax, or public burden of that nature, is imposed, or authorized to he imposed, it should receive that construction Avhich is most favorable to the citizen or subject sought to be charged with the burden. Cincinnati v. Connor, 55 Ohio St., 82-91. It can scarcely be claimed, and we do not understand it is claimed, that the phrase “making two different streets or avenues,” is used exclusively in the sense of constructing entirely new streets or avenues where there had been none before; nor that the restriction imposed by the section against double assessments on the same territory, within the designated period, is confined to cases of that kind. It evidently was the legislative intention that the restriction should include and apply to assessments for improvements made of existing streets; for, it was the evil of unreasonable and excessive, public burdens arising from local assessments that the statute was designed to prevent. There is nothing in the section that limits its application to assessments for any particular-kind of improvement, further than it must be the improvement of a street or avenue. Such improvement may be made by the construction of sidewalks, as well as by paving, or otherwise improving, the roadway. Sidewalks a,re a part of the street; their construction is an improvement of the street which contributes to the convenience of the public in its use; and assessments for their construction are of the same general nature, and levied on the same principle, as those for the improvement of that part of the street between the sidewalks. Moreover, the mischief which, it was, the purpose of the statute to remedy, as certainly arises when the aggregate amount of assessments, levied on the same lot for the construction of a sidewalk on one street and the improvement of the road■way of another street exceeds the statutory limit, as when that limit is exceeded by assessments for two street improvements of the latter character; and no-reason is discovered why the statute should not be-applied in the former case, as well as in the latter. Both classes of cases appear to be equally with the spirit and intent of the statute. It would seem but just and reasonable that when one quarter of at owner’s estate in land is taken for a municipal hr provement made for the public convenience, without other compensation than conjectured benefits to him, in the estimation of which he has no voice, he should have a brief respite from further burdens of that nature, on the same land.

We are of the opinion that the assessment which plaintiff seeks to have enjoined was unauthorized, and that the judgment of the circuit court should be reversed, and that of the common pleas affirmed.

Judgment accordingly.


source: Caselaw Access Project

author: Shatjck, O. J.

license: Public Domain

text:
    City of Cincinnati v. Taft et al.

      .Bond, issue by municipality — Under act of G-eneral Assembly — Validity of supplemental acts for renewal or extension of bonds — Constitutional law.

    .An act of the general assembly to authorize a municipality to issue bonds for the construction of a public improvement having been adjudged by this court to be constitutionally valid, and the bonds having been thereafter sold and the improvement made* the court will follow the former decision as to the validity of supplementary acts relating to the renewal or extension of such bonds.
    (Decided June 19, 1900.)
    Error to the Circuit Court of Hamilton county.
    The defendants are the trustees of the sinking fund of Cincinnati and the trustees of the Cincinnati Southern Railway. The plaintiff brought suit in the court of common pleas to enjoin the defendants from extending the time of payment of bonds issued for the construction of said railway and from taking action or incurring liability in that behalf.
    After final judgment in the court of common pleas the cause was appealed to the circuit court where a .general demurrer to the petition of the city was sustained. and final judgment was rendered against it. Tbe petition alleges that tbe defendant boards, acting together, had issued circulars and advertisements to. the holders of such of the bonds of the city issued for the construction of said railway as are to mature July 1, 1902, and are about to exercise generally the powers defined in the act of April 25, 1898 (93 O. L., 672), with a view to extending the time of the payment of said bonds for a period not exceeding forty years. The plaintiff does not charge that the defendants are about to perform any act in excess of the authority defined in said act, but it denies the constitutional validity of the act. The circuit court sustained the general demurrer to the petition and rendered final judgment thereon against the city. The ruling upon the demurrer is assigned as error. The act in question is as follows:
    “AN ACT
    “Supplementary to an act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants, passed May 4, 1869 [66 Q.. L., page 30], (!80).
    “Section 1. Be it enaeted by the General Assembly of the State‘ of Ohio, That all bonds of any city which may have been issued for the construction of a. railway under the act to which this is supplementary,, and which have been redeemed by purchase or exchange by the trustees of tbe sinking fund of any such, city, shall be held and considered to have been fully-paid by such redemption, and shall be deemed can-, celed and destroyed, and thereafter no part of the income derived from said railway shall be applied to the payment of any interest on, or to the providing of a.. sinking fund for said canceled bonds, nor shall any levy for interest or sinking fund be made therefor.
    “Sec. 2. The trustees of the said, railway are hereby authorized by a proper indorsement or stamping on any of the outstanding bonds and the coupons thereof, issued under the act to which this is supplementary, to agree to extend the time of payment of said bonds for a period not to exceed forty years from the maturity thereof, upon the holders of such portions of said bonds as said trustees may agree with, agreeing to reduce the interest thereon to such rate as said trustees shall fix, not exceeding three and one-half per cent per annum. And said trustees are hereby further authorized to cause to be engraved, printed and attached to such bonds su.ch additional coupons as may be necessary to evidence the interest to be paid for the extended time of payment of said bonds. Any expense incurred by reason of the extension aforesaid shall be paid to the city treasurer upon the order of the board of trustees of said railway out of any income derived from said railway.
    “S'7o. 3. That section 2 of the act of March 8,1889 (86 O. L., 67), being an act entitled An act supplementary to an act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants, passed May 4, 1869, be and the same is hereby repealed/
    “Seo. 4. This act shall take effect and be in force from and after its passage.”

      Ellis G. Kinkead; Wade If. Ellis; E. D. Peck and fi. G. Cassatt, for plaintiff in error.
    1. Acts of the legislature which apply to particular bonds, issued for a particular purpose, by a particular city, are special.

      2. Acts of the legislature which authorize the extension of the bonds of a city through certain designated officers confer corporate powers.
    3. If the subject-matter of an act is general, then a classification based upon arbitrary and restrictive characteristics does not provide for the uniform operation required by the constitution.
    4. A reported decision of the Supreme Court, although in a case in which the question might have been raised, is entitled to no consideration as settling by judicial determination a principle not raised or passed upon in the decision.
    The cases of Walker v. Cincinnati, 21 Ohio St., 14, and Thoms v. Greenwood et al., 7 American Law Record, 321, decide only the constitutionality of the acts therein questioned and upon the grounds therein presented, and are not authority upon the subject of special legislation.
    5. If a board of trustees having exclusive discretion in the performance of a corporate act in behalf of the city determines to make its action dependent upon the discretion and concurrence of another board of trustees having no authority in the premises and does so act, the action thus taken is void.
    It cannot seriously be denied by the defendants in •error that these acts are special; it is, however, earnestly contended that they do not confer corporate powers. That the acts are special is evident from the fact that the legislature picks out particular bonds, issued for particular purposes, by particular officers of a single city, and legislates with respect thereto. That these acts confer corporate power is evident, since they confer upon the city of Cincinnati authority to extend, through its agents, its municipal obligations.

      The first section of the act of 1889 shows that that act was designed to refer to one particular railway, namely, the railway theretofore built under the provisions of the act of 1809. That that act is special in its intent is further evident from the provision that the extension of the lease shall be made within three years from the passage of the act. This makes the act equally obnoxious with the annexation act passed by the legislature April 13, 1893, and discussed in the case of State ex rel. v. Cincinnati, 52 Ohio St., 419.
    In the case of The State v. Pugh, 43 Ohio St., 98, there was involved the validity of an act applicable to Columbus.
    The trustees, who, in this act are authorized to extend the municipal obligations of the city of Cincinnati, are the trustees who are now acting by virtue of the act of the general assembly passed April 12, 1880 (77 Ohio L., 175).
    The power conferred by the act of 1898 is, therefore. a power conferred only upon trustees of a railway constructed under the act of 1869 — by the city of Cincinnati, whose bonds have been approved by the superior court of the city of Cincinnati. The act of 1898 can never refer to any other city than to Cincinnati. This is true not only because, or chiefly because, at the time of the passage of the act of 1869 Cincinnati was the only city coming within the class specifically provided in that act for this purpose; but also because this supplementary act of 1898 confers power upon the trustees who have been appointed by the superior court of Cincinnati, and have given a bond approved by that court under the provisions of the act of 1880, just cited. State ex rel. v. Smith et al., 48 Ohio St., 211.

      The acts of 1889 and 1898 confer upon the city of Cincinnati authority to extend for forty years certain of its municipal obligations; the recipient of that power is the city. The city is a corporation, and therefore the power conferred is a corporate power. Section 1, Article XIII, of the constitution provides that the general assembly shall pass no special act conferring corporate powers. This provision of the constitution has been held to apply to municipal corporations as well as to other corporations. Railroad Company v. Martin, 53 Ohio St., 398.
    The act of 1898 does not confer power to extend these bonds upon the trustees of the Southern railway in their own behalf; it confers the power upon the city, and makes the trustees of the Southern railway agents to exercise that power. These bonds are the city’s bonds. They constitute a contract between the city and the bondholders; no third parties can alter, modify or extend that contract, except with the consent of the parties to it. The legislature itself has no power to extend these bonds. People, etc., v. Common Council of Detroit, 28 Mich., 228.
    It has been held in a number of cases that the power of the general assembly over public corporations exists only with reference to matters public in their nature. The municipality may have rights with respect to certain kinds of property, which cannot be divested by an act of the legislature, except by the exercise of the right of eminent domain, and for a just compensation. And when municipal corporations enter into contracts, purchasing or selling commodities, the obligation of such contracts cannot be impaired as against them by a subsequent statute. When they are empowered to take and hold private property for municipal uses, there seems to be a distinction made "between the state control over their proprietorship of snch property, and the general power to be exercised over the municipal revenues, etc., by the legislature. This distinction is somewhat difficult to appreciate, but still it is made, and it is held that property, when so taken, is invested with all the security of other private rights. Grogon v. San Francisco, 18 Cal., 590; Railroad Co. v. City of New Orleans, 26 La. An., 517; Town of Milwaukee v. City of Milwaukee, 12 Wis., 98; Touchard v. Touchard, 5 Col., 506; Beach on Public Corporations, section 712.
    If it is denied by the defendants that the acts in controversy are special acts, and, therefore, do not violate section 1, article 13, of the constitution, it must follow that they are general acts, and in that case they violate section 26, article 2, of the constitution, which provides that all acts of a general nature shall have uniform operation throughout the state. The subject-matter of these acts is municipal bonds, yet the acts are so framed as to make impossible their application to any other municipality in Ohio than the city of Cincinnati. The language in section 1 of ilie act of 1898 is that “all bonds of any city which may have been issued for the construction of a railway under the act to which this is supplementary.” Costello v. Wyoming, 49 Ohio St., 202; State ex rel. v. Ellet et al., 47 Ohio St., 90; Gaylord, v. Hubbard, 56 Ohio St., 25; Commissioners v. Rosche, 50 Ohio St., 103.
    It is contended by the defendants that the constitutionality of these acts for the extension of the Southern railway bonds is governed by the decision of this court in Walker v. Cincinnati, supra. But it will be found upon á reading of this case that while it sustains the act of 1869, providing for the construction of the Southern railway by the city of Cincinnati, there is not a line in it from beginning to end which declares that that act did not infringe either section 1, article 13, or section 28, article 2, of the constitution. Whether or not it was a law of a general nature, and therefore should have had a uniform operation throughout the state was not raised in the Walker case. Whether or not it was a special act conferring corporate poAver was not raised in the Walker case, and the Supreme Court has repeatedly said in subsequent decisions that the Walker case is not to be taken as authority upon either of these questions. The court says so strongly in State v. Pugh, 43 Ohio St., 98, wherein the court revieAved at length the Walker case. But if it be true that these constitutional objections can by any possibility be said to have been decided in the Walker case, then the Supreme Court in the later cases has declared that it Avill not be guided by that decision. “For if it be true that in the past,” say the Supreme Court in State v. Pugh, “bowing to the clamors of expediency or some special exigency, we have broken through the limitations and departed from the plain proAdsions of the constitution, we cannot return too soon.” And again: “While it is important that this court should be consistent, it is also important that it should be right.” Hixson v. Burson, 54 Ohio St., 485.
    In Walker v. Cincinnati, supra, case no question of unconstitutionality Avas raised regarding section 26, article 2, or section 1, article 13, and the court specifically limits its holding to the objections urged. Railway Co. v. Martin, Tr., 53 Ohio St., 386.
    The real question involved in this case relates to the constitutionality of section 2 of the act of April 25, 1898 (93 Laws, 6721.

      The act in question is a special act conferring corporate power, and is therefore invalid because it contravenes the provisions of the constitution forbidding the passage of such acts.
    The bonds to which the provisions of this act apply are those which have been issued for the construction of a railway under the act of May 4,1869, which have been redeemed by purchase or exchange by the trustees of the sinking fund of the city constructing such railway. As Cincinnati is the only city which has, or ever had, any such railway, or any such outstanding-bonds, it is obvious that the section can only apply to Cincinnati, and that no other city can ever by any possibility come within its provisions. State v. Covington, 29 Ohio St., 111; State v. Smith, 48 Ohio St., 211.
    But these are in effect only repetitions of a proposition of law frequently stated by this court. State v. Cincinnati, 23 Ohio St., 446; State v. Anderson, 44 Ohio St., 247; State v. Pugh, 43 Ohio St., 98; State v. Constantine, 42 Ohio St., 437; State v. Mitchell, 31 Ohio St., 608; State v. Cincinnati, 52 Ohio St., 419.
    It has, however, been suggested that, because the act in question is supplementary to the act of May 4, 1S69, and that as the latter is not open to the same objection, the invalidity of the first mentioned act is in some way cured by the older statute. Assuming for the moment that the act of May 4,1869, is not special, we do not perceive how that can fairly answer the objection that the later act is special. The constitution makes no exception as to supplementary or any other class of facts, but all which are special are alike prohibited if they confer corporate power. To hold that a state of things may be created by an act of a general nature, such as to authorize subsequent supplementary acts of a special nature conferring corporate power, would seem to be an attempt to read an amendment into the constitution.
    It is contended that it bas been decided that the original Southern railway act of May 4,1869, was not a special act conferring corporate power, but this court has more than once pointed out that such contention is erroneous. The question was not raised or decided in the case of Walker v. Cincinnati, 21 Ohio St., 14, wherein that act was sustained as against certain objections then urged.
    In the case of Stale v. Pugh, 43 Ohio St., 98, the court points out that the question was not raised in the Walker case; and the same observation was made in the case of Railway Co. v. Martin, 53 Ohio St., 399.
    It is quite obvious from these and other cases that the court has not been disposed to extend the doctrines of the Walker case.
    The defendants in error, contend that the plaintiff in error “is concluded by the series of decisions which have been made upon the principle of res judicata, unless it is necessary to determine in this case some questions differing in principle from any which were involved in the cases in which said former decisions were rendered.” This is an extension of the doctrine of res judicata beyond any reported case.
    To constitute the defense of res jucticata, it is necessary that the subject-matter in the action at bar and in a previous cause be identical. Hinton v. McNeil, 5 Ohio, 511.
    The subject-matter of this action is the proposed extension of bonds under the act of the legislature of 1898. This act was not in existence at the time of the rendition of the decisions cited in the historical review contained in the first forty-two pages of the brief of the defendants in error. It is, therefore, evident that the subject-matter of this action, viz., the extension of bonds under that act, is not identical with the subject-matter in any of these preceding cases. We know of no authority under which the determination of a question of law, as in this case, the constitutionality of one act becomes res judicata upon a similar question, as the constitutionality of another similar act subsequently passed, even though the parties to both actions be the same.
    It is to be observed, even could the defense of res judicata be invoked, it is not available in the present case for the reason that it was not pleaded. Meiss v. Gill. 44 Ohio St., 253.
    No stronger statement of the limitations of the doctrine of stare decisis can be made than those which have been pronounced by this court in the case of Hixson v. Burson, in which this court declared the subject of roads to be of a general nature.
    The very cases relied upon by defendants in error, Walker v. City, 21 Ohio St., 14; State v. Covington, 29 Ohio St., 102; State v. Cincinnati, 23 Ohio St., 445 (the hospital case); State v. Cincinnati, 20 Ohio St., 38, were before this court, in the case of State v. Pugh, 43 Ohio St., 98.
    The proper limitations of the rule of stare decisis are well set forth in an article upon that subject in the American and English Encyclopedia of Law, Yol. 23, page 36:
    It is not, however, conceded by the plaintiff in error that the cases cited by the defendants in error furnish á basis for the application of the rule stare decisis. That rule is chiefly invoked for the protection of rights which have vested upon the faith of previous adjudications of a court of last resort. The injunction which is sought by the plaintiff in this ease will have no effect upon any private rights which have been acquired upon the faith of the Southern railway acts heretofore upheld by the Ohio courts. No attack is made upon the validity of any of the bonds issued pursuant to any of these acts and no infirmity will attach to the Southern railway obligations now outstanding. The only question involved in the case at bar is the extension of these bonds under authority given to a particular board acting for the city of Cincinnati under special legislation. If that act is declared unconstitutional in this case no public or private rights of property will be affected thereby. The obligations which the defendants in error propose to extend will still remain obligations of the city of Cincinnati and be subject to payment at their maturity or to refunding or extension under general laws now upon the statute books. There are ample laws whose general character is unquestioned, under authority of which refunding or extension of these bonds may be had at as low or lower rates of interest than in the case at bar. We refer particularly to Revised Statutes, section 2709, as amended in 1898, sections 2729a, 2729p2, and 2729/?2. The situation, therefore, which is presented by the present case is not one calling for the application of the doctrine of stare decisis, even were the cases cited by defendants in error all pertinent to their contention. It is submitted, however, that none of these cases support the proposition that the act in question is not a special act conferring-corporate power, or that it is a law of a general nature and has uniform operation throughout the state.
    W. T. Porter ; R. A. Harrison; B. /i. Ferguson and J. R. Sayler, for defendants in error.

      The act of April 25,1S98, is resisted by the plaintiff' in error upon the supposed ground that it is a “special act conferring corporate powers” within the meaning of Art. XIII, sec. 1, of the Constitution.
    One decisive answer to’ this contention is, that the-decisions of this court before cited ifiainly and conclusively prove that it cannot be entertained, or if' entertained it cannot be sustained. The question attempted to be made is no longer open to discussion, it having passed beyond the stage of controversy into, final judgment.
    In the first place, the validity of the act of May 4, 1869, and that of March 25,1870, was litigated in the case of Walker v. Cincinnati, supra, and both acts were adjudged to be constitutional and valid. The validity of the bonds to be issued by the trustees of the railway under said act of 1869 was conclusively determined in that case, and the bonds authorized by that act were issued accordingly. Every citizen or taxpayer of the city was a party or privy to that litigation, and is bound by the judgment of this court, upon the principle of res judicata. It was decided between the parties in that case, that the originial act was “general” and not special; for it gave to the city council, acting in its municipal legislative capacity, certain powers, and if these powers were “special,” it could not have been sustained. It was also decided that the trustees of the Cincinnati Southern railway were not a corporation, and that the powers conferred upon them were conferred upon them as an unincorporated board of trustees created by the state. The. act could not have been sustained if the powers vested in them had been held to be conferred by a special act and to be “corporate powers.”

      In the second place, the constitutional validity of several acts supplementary to the parent statute of May 4,1869, has been sustained by this court, in a series of suits in which the city of Cincinnati was a party.
    It follows that the plaintiff in error in the present case is concluded by the series of decisions which have been made, upon the principle of res judicata, unless it is necessary to determine in this case some question differing in principle from any which were involved in the cases in which said former decisions were rendered.
    But independent of the strict doctrine of res judicata. the policy of the law requires stability in judicial decisions; and so the principle of stare decisis is applicable to this case. The acts of the General Assembly under which each of the series of bonds were issued by the trustees of the railway were, in a series of cases, adjudged by this court to be valid acts; and the bonds were issued upon the faith of these solemn judgments. A stronger case for the application of the maxim stare decisis cannot transpire. State ex rel. v. Cincinnati, 20 Ohio St., 18; Walker v. Cincinnati, 21 Ohio St., 14; State of Ohio, etc., v. Davis et al., 23 Ohio St., 434; The State etc., v. Cincinnati et al., 23 Ohio St., 445; The State ex rel. Atty. Gen. v. Covington, 29 Ohio St., 102.
    The contention of opposing counsel that the city is the beneficiary, and the board of trustees are the mere agents of the city, and therefore the grant of power to the board is a grant of power to the city, is adequately and conclusively met and answered by the decisions in the two hospital cases cited. These cases must be read together in order to be fully understood and appreciated. The Cincinnati hospital was and is an institution maintained by taxation upon the city. Its trustees, like the trustees of the Southern railway, have no property interest in it or its management. They are mere trustees, managing it for the benefit of the public, the burden of supporting it being imposed upon the taxpayers of the city.
    In the case of The State v. Sherman, 22 Ohio St., 411, the Pittsburgh, Ft. Wayne & Chicago Railroad Company had been sold to pay its debts, and rechartered as “The Pittsburgh, Ft. Wayne & Chicago Railway Company” by the legislatures of Pennsylvania, Indiana and Illinois. The state of Ohio had passed an act in 1863, enacting “that the purchasers of the railroad situate wholly or partly within this state, which has been sold pursuant to judicial order, may acquire the franchise to be a corporation originally vested in the company Avhich held the said- railroad prior to such sale by a grant of said company.” There was but one railroad in that precise condition, and to provide for this act was intended.
    In the other case it is to be observed that, the court cite Welker v. Potter as an approved precedent for the construction' of the term “general,” as applied to cities, in art. 13, secs. 1 and 2. What gives importance to this citation and approval by the court of Welker v. Potter, is that they fully recognize the fact that the decision in that case covered art. 13, secs. 1 and 2, as Avell as art. 2, sec. 26, as it certainly did, and they approve the decision in its application to both sections of the constitution. State v. McGregor, 44 Ohio St., 628.
    The final decision of this court in the Thoms case at its December Term, 1878, sustaining the constitutionality of the supplementary act of May 15, 1878, a summary of the propositions laid down by the superior court being contained in the foregoing statement, conclusively shows the validity of the supplementary act of April 25, 1898.
    The act in question in the Thoms case was a supplementary act and affected every person who was within the relations and circumstances provided for by it at the time of its passage; and that is the attribute which determines the nature of the act as a general law having a uniform operation, whether perpetual or temporary in its operation; for a general law may be temporary. If at the time a supplemental act is passed, conditions exist in the group of cities or in any of the group of cities described in the parent statute, and which the supplemental act provides relief from, it is not a. special act, whether it is of perpetual or only of temporary operation. And if such an act were held to be-conferred are conferred upon an independent board of' special, it would not be invalid if the powers thereby trustees created by the state and appointed by a state court.
    In the cases above commented upon it was urged that each of the several acts under which they arose was unconstitutional, upon the ground that each of them could not practically and in point of fact apply to any other city than Cincinnati. But the objection was overruled, either because, as the court held, that the act brought in question in each case was a law of' a general nature having a uniform operation throughout the state, within the meaning of section 26, article-2, of the constitution, or else that if the act was a. special act it did not confer corporate powers within the settled meaning of the first section of article 13. These cases sustain the act of April 25,1898; for, if as was held in them, the acts under which they arose-were not obnoxious to said objection, the act of April 25, 1898, is clearly not. As-said acts were sustained, notwithstanding they did not or might not practically and in point of fact apply to any other city than Cincinnati, the act now brought in question is not invalid because it practically and in point of fact may not now and may never apply to any other city than Cincinnati.
    “Where a city has proceeded under a general .law to construct a public improvement and its funds give out, the legislature may, by special act, confer power on it to complete the enterprise. Power conferred by general law being exercised by special legislation to perfect and effectuate the work is valid.” Merrill v. Toledo, 6 C. C., 430; 3 Circ. Dec. 524; Foster v. Commissioners, 9 Ohio St., 540.
    Although the power conferred by the supplemental act of April 25,1898, does not provide for the completion of any railway authorized to be provided by the original act, it does provide for conditions created by the actual construction thereof by a board of trustees created by the legislature, in the mode therein prescribed. Surely, no adequate reason can be assigned to prove that it is not competent for the general assembly to provide, by appropriate legislation, for relief from such conditions, as well as to make provision for the completion of the railway. To hold that the constitution has imposed such an absurd restriction upon the exercise of legislative power as the objection is based upon, would be to hold that the legislature is powerless to provide a remedy for conditions created by the lawful exercise of powers lawfully granted. The power to grant legislative relief in such cases is necessarily implied, as incidental to tlie exercise of express powers previously granted.
    The history of the Cincinnati Southern Railway, and the nature and number of the supplements to the original act of May 4, 1869, authorizing its construction, show that the construction of such a great public work or thoroughfare cannot be safely undertaken unless relief from unforeseen conditions, which may arise either during its construction or after its completion, can be guarded against by appropriate and adequate supplementary enactments. Such supplementary legislation is grafted by the legislature in the parent statute, and is; in legal effect, a part thereof, and gives it its legal status.
    An act and its supplement are to be construed as one law. Van Riper v. Essex Public Road Board, 38 N. J. L., 23.
    The powers conferred upon a city council are corporate powers, because the council is the legislative and governing body of the city. But powers conferred by the general assembly upon an independent board of trustees which are strictly subordinate and ancillary to the general powers conferred upon a city,, and are not connected with or a part of the municipal powers to be exercised in governing the city, and which are to be exercised not according to the Avill of' the city but according to its own independent judgment and discretion, under the statute creating it, is. not a corporate power. The fact that the general assembly provides for the appointment, by a state court, of a board of trustees, and authorizes them to enter into pecuniary obligations which bind the city, and to acquire title to property, both real and personal, and to take the title thereto in their own names, in trust for a city, does not impart a corporate quality to their powers, provided such powers are in their nature strictly subordinate and ancillary to powers previously lawfully conferred upon and exercised by the city, and are to be exercised by the board independent of the city. The primary powers conferred upon the city, in such case cannot be conferred by special laws; and it may be impossible, or highly injurious to the inhabitants of the city, to provide for special conditions, exigencies and emergencies, without the interposition of trustees invested with certain defined authority.
    If the act of April 25, 3898, was held to be a “special act,” it would, nevertheless, be held valid, because it does not confer corporate power.
    Its extent is restricted to an extension, with the consent of the holders of the bonds, of the time of' payment thereof at a less rate of interest. Sherman County v. Simonds, 300 U. S., 735.
    Beach on Public Corporations, Vol. 2, Sec. 928.
    Trustees appointed under the act of May 4, 1869,. constitute an independent board. They are not appointed by the city, either directly or indirectly. Their powers are derived from and defined by the general assembly, and not bv the city. The statute authorizes them to make contracts in their own name, and to appoint their own officers and employ their uwn agents, and take security from their officers and agents for the faithful performance of their duties under such appointment or employment. The legal title to the line of railway is primarily vested in the trustees. The city cannot vary either the powers or duties of the trustees. The facts that the trustees are authorized to issue bonds of the city to raise the money necessary to construct a railway under the statute, and that taxation is necessary to provide for the payment of the bonds, are not material facts in this connection. State ex rel v. Davis et al., 23 Ohio St., 434.
    It is said that “acts of the legislature which authorize the extension of the bonds of the city through certain designated officers confer corporate power.”
    This proposition, if it were sound, has no application to the act of April 25, 1898; for, trustees of a railway appointed under the act of May 4, 1869, are not municipal “officers.” They constitute a board; and, as such, it is an unincorporated body created by the state, and appointed by a court thereof, and has a defined independent status, having powers, rights and duties conferred directly by the state, and to be exercised according to its own independent judgment. It has nothing whatever to do with the government of the city.
    But if its members were “officers,” it would not follow that the powers conferred upon them are corporate powers. State v. Pugh, 43 Ohio St., 98.
    On this point the case of the State v. Covington, 29 Ohio St., 111, is in point. State v. Constantine, 42 Ohio St., 437; State v. Nelson, 52 Ohio St., 88; Driggs v. The State, 52 Ohio St., 37; Philadelphia v. Wheeley, 77 Penn. St., 338; State v. Butts, 31 Kansas, 537.
   Shatjck, O. J.

Counsel for the plaintiff insist that the act is void because repugnant to the 13th article of the constitution of the state, and particularly to the first section of that article: “The general assembly shall pass no special act conferring corporate power;” and to the sixth section: “The general assembly shall provide for the organization of cities and incorporated Tillages by general laws.” That the inhibition of the first section applies to municipal as well as to private corporations seems clear from its comprehensive terms. That it does so apply has not, so far as we know, been doubted since it was so decided in State ex rel. Attorney General v. City of Cincinnati, 20 Ohio St., 18. The act confers upon the city the corporate power of taxation, and it is insisted that the argument against its validity is completed by the proposition that it is necessarily special because it applies to no municipality except Cincinnati.

It would seem that an answer to this argument must be found, if anywhere, in the authority of the former decisions of this court. Those decisions are cited by counsel upon either side, it being contended for the plaintiff that the rules of interpretation defined in numerous cases compel the conclusion that the act is void. However that may be, it is true that the act does not designate Cincinnati by name but describes'it by grade and class; and that although the operation of the act is as effectually restricted to Cincinnati as though it were named, in all the decisions of this court relating to the precise subject that classification has been sustained, i The reports of the- court show that with respect to this subject- the maxim stare clecisis and the reasons for adhering to former decisions have been urged with frequency and earnestness. It does not seem to be doubted that they have received from the court all the consideration to which they are entitled. The maxim is founded upon reason, and it should not be so applied as to banish reason from the law. It must apply to different cases with varying degrees of force according to the reasons for its application. Its effect should be conclusive when former decisions have recognized and defined rules of interpretation with reference to which parties have entered into contractual relations. That effect of the maxim is required by a conservative regard for the repose of society. Such apx>lications of the maxim are encouraged by the consideration that however clearly it may appear to the court that former decisions should not have been made, their operation must be regarded as at least tolerable until the rules which they define are changed by the legislature by laws operating x>rospectively and disturbing no vested right. The maxim would seem to be entitled to the least possible force when invoked to support enactments passed by the legislature in disregard of the boundaries which the constitution has fixed to its power, and where no real or supposed interests have become vested. If the original act of classification by which two classes of cities were created, with but one city in a class, was void because the constitution contains an exclusive classification of municipalities as “cities” and “incorporated villages,” the point, if noticed, was not commented upon. If it was an error to disregard the actual operation of acts conferring corporate power upon a single city by such classification, and to rely upon the hope that the future might give to such acts a wider operation, the error was at least extenuated by the consideration, made prominent in the decisions, that the legislature intended to respect the constitution and that the classification was to be permanent so that in the development of the state other cities might enter the classes then created. Unless judges are absolved from the use of reason, a conclusion resting upon that consideration would not be entertained now if it has been made clear that no classification is permitted to be permanent; that by increasing the number of classes and dividing the classes into grades what is called classification is employed for the isolation of every city in the state, and that acts Avhose operation is limited and defined by such classification confer corporate poAver in palpable violation of the constitution.

There is, however, one decision Avhicli seems to be entitled to conclusive effect in support of the judgment of the circuit court. In Walker v. Cincinnati, 21 Ohio St., 14, it Avas decided that the act of May 4, 1869, entitled “an act relating to cities of the first class,” etc., commonly knoAvn as the Cincinnati RailAvay act, was valid. The act before us is supplementary to that Avhose validity was there affirmed. Counsel for the plaintiff are aAvare of the familiar rule that supplementary acts are, in their interpretation, subject to the same rules as those which they supplement, to the end that the entire body of legislation so related may operate harmoniously. Nor do we understand them to deny that this rule embraces all constitutional questions which may have been involved in the original act. But, AAthile admitting that the present act is in form supplementary to that, they insist that it is not so in the substance of its provisions. This position does not appear to be well chosen. It resulted from the decision in Walker v. Cincinnati, that a condition arose in that city which is not found in any other city of the state. In the exercise of authority which, according to the judgment in that case, the original act conferred upon the city, municipal bonds in large amounts were issued. They were purchased in reliance upon the judgment in that case. The money realized from their sale was expended in the construction of the railway. The city through trustees is now engaged in operating the railway and caring for the debt so created. The peculiar condition thus arising in Cincinnati is the precise subject of the legislation whose validity is now denied. It would be intolerable if a change in the judges composing a court should result in setting aside judgments believed to have been erroneously rendered. The case is not within the usual application of the maxim stare decisis, but within the rules which require stability of judgments. Judgments may not be set aside after term merely because they are believed to have been erroneously rendered, though it is not required that like judgments be thereafter rendered in similar cases. The judges who decided Walker v. Cincinnati, could not with propriety have set aside their judgment when they became satisfied that it had been erroneously rendered, the supposed authority having in the meantime been exercised. It may. be that the most obvious reasons for holding the original act void were not presented by counsel nor considered by the court in that case. Indeed the concluding sentence of the opinion seems to intimate that they were not. However, that may bej the failure to consider such reasons could not affect the case otherwise than to impair its authority when presented in support of the validity of independent legislation of a like character. That failure does not at all detract from the conclusiveness of the judgment then rendered, which was, in effect, that this legislation is valid.

It may aid to prevent improper inferences if it is added that it is not intended by any of these observations to intimate the. opinion that Walker v. Cincinnati was correctly decided nor that the maxim stare decisis would require the same judgment with respect to independent legislation of like character.

Judgment affirmed.


author: By the Court :

text:
    State ex rel. Guilbert, Auditor v. Halliday, Auditor of Franklin County.

      Two statutes irreconcilable — Effect given to later — Bill not law until signed by presiding officer — Order of signatures prevail.

    1. In so far as two statutes are irreconcilable, effect must be given to the one which is the later.
    2. A bill can not become a law until it has been signed by the presiding officer of each house; and when one bill was so signed after another bill so signed on the same day, the former is the later enactment.
    (Decided June 19, 1900.)
    Mandamus.
    The 74th General Assembly enacted two laws, each purporting to amend and supplement section 2813 of the Revised Statutes. They are designated as House Bill No. 777 and Senate Bill No. 309. By House Bill No. 777 it is provided that “the decennial county board of equalization shall complete its work of equalization on or before the fourth Monday of February * * * néxt following the beginning of the equalization.” By Senate Bill No. 309 it is provided that the county board of equalization “shall convene at the office of the county auditor on the third Monday of July, one thousand nine hundred, and every tenth year thereafter; and shall close their sessions on or before the first Monday in October then next following.” Both of .these bills were passed and signed on the same day, April 16, 3.900; but the relator avers that Senate Bill No. 309 was signed by the President of the Senate and the Speaker of the House after House Bill No. 777 was signed. The defendant in his answer, “admits the enactment of said laws as averred in the petition.”
    The relator alleges that he instructed the defendant that in pursuance of his duties as auditor of Franklin county he should observe the provisions of said Senate Bill No. 309 as governing the sessions of the decennial county board of equalization, and that defendant refuses to obey said instruction; and the relator prays for a writ of mandamus to compel defendant to observe the requirements of section 2813 of the Revised Statutes, as amended by said Senate Bill No. 309.
    The answer of the defendant assigns as a reason for not obeying the instruction of the relator, that both of said laws so passed are so irreconcilable that effect cannot be given to either; and that the old section 2813 of the Revised Statutes has not been thereby repealed, amended nor supplemented.
    The relator demurs to the answer.

      J. M. Sheets, Attorney General; J. E. Todd, Assistant Attorney General, and Smith W. Bennett, for the relator.
    Where the acts are irreconcilable, how construed?
    Here is an illustration of two acts passed on the same day, establishing different times for the performance of the same acts or duties, by the same board, and at least as to questions of time, are inconsistent with each other.
    Remembering the well established propositions that repeals by implication are not favored, and that acts apparently repugnant should be harmonized, if possible, we must conclude that it is impossible to harmonize so widely different dates as are here apparent; hence, the latter act repeals the former, and we apply the rule, that
    “In so far- as the two sections are irreconcilable with each other, effect must be given to the latter.” The State ex rel. v. Com’rs Shelby Co., 36 Ohio St., 326; Strauss v. Heiss, 48 Md., 292.
    “Fractions of a day may be noticed to prevent great mischief or inconvenience.” Hampton v. Erenzeller, 2 Browne (Pa.), 19.
    “The same rule that requires the harmonization of two acts passed the same session, if possible, applies with at least equal force to acts passed on the same day.” Black v. Scott, 2 Brock., 325; Smith v. People, 47 N. Y., 330; State v. Rackley, 2 Blackf. (Ind.), 249; State v. Clark, 54 Mo., 216.
    We have found but two cases presenting an inconsistency as to the time of the operation of two different acts, and the court construed the limitation in the former to be repealed by the limitation in the latter act.
    “The 9, Geo. 4, c. 61, which prohibited keeping open public houses during the hours of afternoon service, was held repealed by implication pro tanto by the 18 and 19 Viet., c. 118, which prohibited the sale between three and five o’clock P. M., the usual hours of afternoon service. If both acts had coexisted, it would have been in the power of the clergyman of every parish to close the public houses for four hours instead of two, by beginning the afternoon service at one or five o’clock P. M., an intention too singular to be lightly attributed to the legislature.” (But the court does not say whether the “singular intention,” was keeping the church open so long, or the public house so short a time.) Rex. v. Whitely, 3 H. & N., 143; Johnson v. Bush, 3 Bank Ch. (N. Y.), 207.

      It will be observed % the court, that it is averred in the petition of the plaintiff and admitted by the defendant, that Senate Bill No. 309 was signed last, and hence is the latter law. A bill does not become a law until signed by the presiding officer of each house. Constitution of Ohio, Art II, Section 17; State v. Kiesewetter, 45 Ohio St., 254.
    If the acts are irreconcilable but in part, the balance of each may stand as one act.
    It would appear to be a very plain proposition, that the latter enacted act does not repeal the former, save, to the extent that the two are repugnant, or inconsistent. State ex rel. v. Commissioners, 36 Ohio. St., 326; Hendersons Tobacco, 78 U. S., 652; Wood v. U. S., 16 Pet., 342; Fabbin v. Murphy, 95 U. S., 196.
    How far are the acts irreconcilable? It would seem that the only inconsistency in the acts is the times of beginning and ending the labors of the board, The times mentioned in section 2813 of Senate Bill 309, should supersede the times mentioned in old section 2813, Revised Statutes, and the Senate Bill amends that section; and it supersedes section 2813a of the House Bill as to the limitation, because it is the latter act.
    Therefore it appears to us that if section 2813 of the Senate Bill was permitted to stand as it was passed, and read into it the balance of section 2813a from House Bill No. 777, the legislative will could thus be ascertained. In that way a law consistent with all other laws upon the same subject is left to stand.

      Taylor, Seymour cfi Webber, for defendant. Submitted no brief.
   By the Court :

In so far as these two enactments are irreconcilable, affect must be given to the one which is the later law. State ex rel. v. Commissioners Shelby Co., 36 Ohio St., 326. A bill cannot become a law until it has been duly signed by the presiding officer of each house. Const., Art. II, sec 17. State ex rel. v. Kiesewetter, 45 Ohio St., 254. It is averred in the petition and admitted in the answer that Senate Bill No. 309 was signed by che president of the Senate and the speaker of the House after House Bill No. 777 was so signed on the same day. The former is, therefore, the later enactment.

■Peremptory Mandamus allowed.


author: By the Court:

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    Foster v. Borne et al.

      •Judgment of common pleas against defendant — Served with summons in county other than 'cohere action was pending — Defendant taking appeal to circuit court-waives question of jurisdiction.

    Where a judgment is rendered in the court of common pleas against a defendant who was served with summons in a county other than where the action was pending, and he takes an appeal from such judgment to the circuit court, he thereby waives the question of want of jurisdiction over his person, and enters his appearance in the action.
    (Decided June 19, 1900.)
    Error to the Circuit Court of Hancock county.
    William G. Borne recovered a judgment in the court of common pleas against Burton P. Foster, April 26, 1894, and on June 26, 1894, he began his action against Burton P. Foster, Parks Foster, Mollie M. Foster, and The Hancock Light and Power Company,. a corporation located and doing business in Hancock county where the action was commenced and service of summons duly made on said company. The other three defendants were non-residents of that county, and were served with summons in the counties of their residence. The object of the action was to set aside a sale of 530 shares of stock in said company, made by said Burton P. Booster to his father, said Parks Foster, on January 31, 1894, as fraudulent as against the judgment so recovered by said William G. Borne, and to subject the said stock to the payment of said judgment, and for all proper relief. Parks Foster and Burton P. Foster filed motions to quash the service of summons upon them, and did not enter their appearance for any other purpose. The court of common pleas sustained the motions, quashed the service of summons, and dismissed the petition. The circuit court, on petition in error for that purpose, reversed the judgment and remanded the cause for further proceedings, to which they excepted. They did not take the case to this court on error, but filed their answers in the court of common pleas, but did not plead the want of jurisdiction of their persons in their answers. Upon trial in the court of common pleas judgment was rendered against Parks Foster to the effect that he pay the amount due upon the Borne judgment, and in default that execution issue therefor, to which he excepted. No judgment was rendered or order made against The Hancock Light and Power Company, Burton P. Foster or Mollie M. Foster or either of them.
    Thereupon Parks Foster alone appealed the cause as to the judgment against him to the circuit court, and upon trial in that court, upon the merits, substantially the same judgment wa,s rendered against him alone, to which he excepted, and filed a motion for a new trial, one ground of the motion being, that as he was a non-resident of the county, and served with summons in the county of his residence, the circuit court had not acquired jurisdiction of his person. The motion was overruled and exception taken.
    Thereupon he filed a petition in error in this court, seeking to reverse the judgment of the circuit court.

      J. A. <& E. V. Bope, for plaintiff in error.

      Boss & Kinder, and Kerry W. Seney, for defendant in error.
   By the Court:

No judgment having been rendered in the court of common pleas against the only party defendant who resided in the county where suit was brought and who was served Avith summons in that county, it may well be doubted whether that court had jurisdiction to render any judgment against Parks Foster, who was a resident of Lorain county, and Avas served with summons in that county. Allen v. Miller, 11 Ohio St., 374; Long v. Newhouse, 57 Ohio St., 348; Dunn v. Hazlett, 4 Ohio St., 435; Drea v. Carrington, 32 Ohio St., 595.

But passing that question without determining it, as it would not be decisive of this case, we are clear in the opinion that by his appeal to the circuit court, he waived the question of jurisdiction of his person, and entered his appearance in that court, and that court having thus acquired jurisdiction of his person, and also of the subject matter, there was no error in rendering judgment against him.

If he had filed a petition in error in the circuit court, to reverse the judgment of the court of common pleas, he would not thereby have entered his appearance in the original action, and might have obtained a ruling upon the question as to the right of the court of common pleas to render judgment against him when it failed to render a judgment against the only party that was served with summons in the county where the action was pending. A petition in error is a new action to reverse the judgment below;.but an appeal is, in the circuit court, the same action as in the court of common pleas; and a voluntary appearance in the circuit court, is in legal effect, the same as such appearance in the common pleas. He-could invoke the action of the circuit court to reverse-the erroneous judgment against him without entering bis appearance to such judgment, but he could not invoke the action of the circuit court on appeal, to aid him in preventing a judgment from being rendered against him, without thereby entering his appearance- and becoming a party to the action. He could not. invoke the action of the circuit court to aid him in defeating his opponent, and when defeated himself, turn around and claim that the circuit court had no-jurisdiction of his person. When he invoked the action of the circuit court, he thereby assented that the-court might render judgment for him or against him, as the evidence should warrant.

We regard what is said on this subject in the opinion in Mason v. Alexander, 44 Ohio St., on page-330, as sound law.

We find no error in the record.

Judgment affirmed.


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    Davis et al. v. The State.

      •Charge to jury in criminal case — Properly is that-jury and no 1 each juror — Should he convinced of guilt of accused.

    'The proper charge to a jury in a criminal case is, that the jury, and not that each juror, should be convinced beyond reasonable doubt of the guilt of the accused before finding him guilty.
    (Decided June 19, 1900.)
    Application for leave to file a petition in error to tlie Circuit Court of Cuyahoga county.

      J. P. Hawley, for plaintiff in error.

      Harvey Keeler, for defendant in error.
   By the Court :

The plaintiffs in error were indicted and convicted in the common pleas court of an offense under sec. 7075, Revised Statutes, punishing the making and presenting of fraudulent bills to public accounting officers and boards. The conviction was affirmed by the circuit court; and leave is now asked to file a petition in error in this court to reverse the judgment on various assignments of error. We have carefully examined these assignments and think there is but one that needs to be noticed. The court was requested to charge the jury that each juror must be convinced beyond a reasonable doubt of the guilt of the defendants before uniting in a verdict of guilty, This the court refused, but did charge, that the jury must be convinced beyond a reasonable doubt before finding the defendants guilty. We think the request asked was properly refused and that the proper instruction was given. The request as asked would seem to invite an acquittal or at least a disagreement;, and was therefore misleading. It is true that each juror must be convinced of the guilt of the defendant, before uniting in a verdict against him; and this is generally understood; but it is equally true that each should*confer with his fellows, and listen to what they have to urge in weighing the evidence, whether it be for- or against an acquittal, and not obstinately stand upon his own opinion in the matter. The request asked and refused by the court would tend to such a result, and was therefore properly refused. State v. Hamilton, 57 Iowa, 596; State v. Robinson, 12 Wash., 491; State v. Young, 105 Mo., 634, 640.

The verdict should be the intelligent consensus of the whole jury arrived at upon the evidence beyond reasonable doubt. It should be addressed as an entity and not as separate individuals. If the accused is in doubt as to whether the verdict is that of each juror, his remedy is to have it polled, before it separates;, which is an adequate protection against the probability that some one of them or more has not united in the rendition of the verdict.

Motion overruled.


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    Enck v. Gerding.

      Computing of time — For allowance and presentation of till of exceptions — Section 4951, Revised Statutes, controls — If limit falls on Sunday — Following day complies with law.

    Section 4951 of the Revised Statutes controls in computing the time for the presentation and allowance of a bill of exceptions; and where the forty-fifth day after the overruling of a motion for a new trial falls on Sunday, the provisions of section 5302 of the Revised Statutes are complied with by presenting the bill of exceptions on the following day.
    (Decided June 26, 1900.)
    Error to the Circuit Court of Putman county.
    A motion for new trial was overruled by the court of common pleas on July 28, 1898. A bill of exceptions was allowed and signed on September 12,. 1898. The circuit court declined to consider the bill of exceptions because the same had not been presented to the trial judge for allowance and signing as provided by law. This petition in error is to reverse the judgment of the circuit court for the reason that it refused to consider said bill of exceptions.

      Watt & Moore and J. Werner, for plaintiff in error.

      John H. Straman and George Frits;, for defendant in error.
   By the Court :

The bill of exceptions was presented to the trial judge for allowance and signing on the forty-sixth, day after the motion was overruled, that is, on September 12, 1898. The judgment of the circuit court was right unless the forty-fifth day, which was Sunday, must be excluded under the requirements of section 4951 of the Revised Statutes. That section requires that “unless otherwise specially provided” the time within which an act is required to he done, shall be computed by excluding the first day and including the last day; and if the last, be Sunday it shall be excluded. Section 5302 of the Revised Statutes provides that a bill of exceptions shall be presented to the trial judge five days before the expiration of the fifty days; but it does not “otherwise specially provide” as to the mode of computing the time. Section 4951, therefore, •controls in this case. The forty-fifth day being Sunday must be excluded from the count. The bill of exceptions w?as presented to the trial judge within the time provided by law".

The judgment of the circuit court is vacated and the cause remanded to the circuit court with instructions to consider the hill of exceptions.


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    State ex rel. Harris v. Guilbert, Auditor.

      Ohio Centennial — Appropriation of $500,000 not available — Duties of “Ohio Centennial Commission" created by Act of April $6, 1898, advisory and not executive.

    There is no provision of law by which the appropriation of $500,-000, made by the last legislature. “For the Ohio Centennial and Northwest Territory Exposition,” can be made available for the purpose designated, the duties of the “Ohio Centennial Commission” created by the act of the legisature, passed April 26, 1898, being advisory and not executive.
    (Decided June 26, 1900.)
    In Mandamus.

      J. P. Bradbury and J. B. Foralcer, for plaintiff.

      J. M. Sheets, Attorney General; J. E. Todcl, Assistant Attorney General, and Smith W. Bennett, for defendant.
   By the Court :

The relator, Lem P. Harris, Secretary of the Ohio Centennial Commission, created by an act of the legislature passed April 26, 1898 (93 Laws, 269), made a requisition on the Auditor of State for a warrant on the treasury for the sum of $25.00> on account of services rendered by him as secretary for the week ending May 1,1900, to be paid out of an appropriation “For the Ohio Centennial and Northwest Territory Exposition,” made by the legislature shortly before its adjournment, in the sum of $500,000. The claim presented had been approved by James Kilbourne, president of the commission, and the governor of the state. The requisition was refused. The auditor answered, admitting the presentation of the claim and its rejection by him, and further answered: That the Ohio Centennial Commission was appointed by the Governor of Ohio in pursuance of an act of the legislature passed April 26, 1898; that its powers and duties were limited by that act, and that its duties under the act had long since ended prior to May 1, 1900; and that it had no power under that act, or any statute of the state, to draw from the treasury or expend for any purpose any portion of the appropriation, “For the Ohio Centennial and Northwest Territory Exposition,” made by the act passed April 14, 1900, the act in which the above appropriation is made; and that there is not now and was not at the date of the requisition, any fund in the treasury subject to be drawn on by the commission.

To this answer the relator demurred, on the ground that it does not state facts sufficient to constitute a defense.

Whilst it is not claimed that there is any specific statute directly authorizing the appropriation made by the act of April 14, 1900, to be drawn on or expended by the centennial commission, it is argued that it arises as a necessary implication from the act creating the commission, and the previous acts and resolutions of the legislature. And it may be admitted that prior to this act, a clear purpose had been manifested by the state through its legislature, to hold such a centennial; and the time and place had been designated. The act recites what had been done and the importance of the state being fully informed upon the subject, “that the general assembly may act intelligently and effectually in assisting to make the exposition a credit to the state,” and proceed to authorize the governor to appoint a commission of twenty-one persons for the purpose, and defined its powers and duties as follows: “The duties of said commission shall consist in examining and acquainting itself with the grounds upon which it is proposed that said exposition shall be held, and the general plans for their improvement which should receive its approval before the adoption, and shall inspect from time to time such improvements and make such suggestions and recommendations as shall appear desirable or necessary, and in obtaining information as to other expositions of like nature which have heretofore been held or which are now’ being held, and to obtain suggestions from the citizens; of this state as to the nature, extent and character of the exposition which they desire to have held, and to procure plans and propositions pertaining to said exposition and recommendations and suggestions generally that would be of profit in determining what this state should do in forwarding said exposition, including also, invitations to other states, particularly those in the old northwest territory, to participate therein, which invitations shall be approved and endorsed by the governor; and all of which plans, recommendations, suggestions, propositions and information said commission shall report to the next general assembly within ten days from the beginning of its first session. For the purpose of paying the expenses incurred by said commission in the performance of its said duties to the date of its first said report there is hereby appropriated from the general revenue fund of the state from any money not otherwise appropriated, five thousand dollars which shall cover all expenses herein authorized, and the auditor of state shall draw his warrants on the state treasurer in payment of such expenses from time to time on vouchers aforesaid, which warrants shall be paid by said treasurer out of said fund. Pro-Tided however that nothing in this act shall he construed as obligating the state for any appropriation for such centennial exposition, or in any way as expressing the sense of this general assembly, that an appropriation further than the one herein provided, should be made.”

It must readily occur to anyone who reads this act that no executory duties whatever are conferred on thife commission; they are entirely advisory; it is to obtain information, report to the legislature and to advise generally “what this state should do in forwarding said exposition,” and for this purpose $5,000 was appropriated. There is no power here given to contract for any structure, or to purchase or lease any land, for the use of the exposition; or to authorize the expenditure of any money, other than the $5,000, appropriated for the purpose of paying the expenses of the commission incurred in the performance of its duties under the act by which it was created.

But it is said, the legislature intended this appropriation to be used for the purpose of promoting the exposition, or it would not have been made, and it is the duty of the court to make it effective, if that can be reasonably done. The constitution provides that “No money shall be drawn from the treasury, except in pursuance of a specific appropriation, made by law;” but there is no law in this state designating how or by whom this appropriation shall be expended. The appropriation evidently contemplated the adoption of such a law. And we know as a matter of public history, that a bill was introduced in the senate and a somewhat different one in the house, for the purpose of making the appropriation effective. The two houses were unable to .agree, and no legislative action whatever was taken in this regard. From inability to agree, the matter was abandoned. It is argued that this negative action should be received as evidence that the legislature determined to leave the matter with the commission created in 1898. Conceding such to have been the fact, the objection remains that no new powers were thereby added to that commission; and, as we have shown, the powers conferred on it by statute do not include the power to provide for and conduct the exposition. But is it not more rational to say, that a failure to agree is no evidence that they did agree on the very subject about which they differed, and, to infer, that they concluded to leave the appropriation without any legislation to make it effective, or, that each branch determined, rather than agree with the other, to let the centennial fail so far as any aid from the state is concerned?

The fact is also pointed to, that the commission is required to inspect from time to time the improvements made on the grounds, and make suggestions and recommendations with reference thereto, as favoring the claim that it may use the appropriation in question. But this fact seems more clearly to distinguish it from an executive body. It does not consist with the proper use of language to say that one, who is authorized to inspect or supervise work, is therefore authorized to do the work. It necessarily implies that someone else is to do the work that is to be inspected and supervised. To appoint the body authorized to do the work, to inspect it, would afford no protection to the state or the centennial. State ex rel. Riley v. Oglevee, Auditor, 36 Ohio St., 324, is cited as a precedent. Manifestly it is not in point. There a fund had been duly appropriated by the legislature for the contingent expenses of the two houses; and it was held, that where a fund is provided by law, for the contingent expenses of either branch, the disbursement of the fund for such purposes is subject to the control of such branch.

The result will no doubt be deplored by many of the people of the state who desired that the centennial anniversary of her admission to statehood, should be properly commemorated. But the functions of this court are entirely judicial, not legislative; and it can hardly be expected that it will, by a forced interpretation of the laws, do what the legislature had the power and opportunity to do, but for some unfortunate reason, failed to do, after having had the matter under consideration.

Demurrer overruled and writ refused.


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    State ex rel. Guilbert, Auditor, v. Akins, Auditor.

      A bank shareholder cannot have his indebtedness deducted from his shares — But if done in former years — No law to replace deduction on duplicate — Sections 2781 and 2782, Revised Statutes apply to return of personal property by owner — Bank stock is returned by the bank cashier.

    (Decided June 27, 1900.)
    In Mandamus.

      J. M. Sheets, Attorney General; J. E. Todd, Assistant Attorney General; F. S. Monnett and S. W. Bennett, for plaintiff.

      W. W. Boynton and Norton T. Eorr, for defendant.
   By the Court :

A stockholder in a national, or incorporated, bank has not the right to have his indebtedness deducted from the value of his shares by the county auditor; but when this has been done in former years, there is no law by which the deduction can thereafter be placed on the duplicate, as an omission and the taxes collected thereon. Sections 2781 and 2782 apply only to persons required to make returns of their property for taxation; and the stock of a shareholder in a bank is returned, not by himself, but by the cashier, and is assessed by the auditor. The remedy for a false return by the cashier is provided for in section 2769, Revised Statutes. There was, however, no false return by the cashier in this case.

Writ refused.