author: Speaír, J.

text:
    The State of Ohio v. Linder.

      Prosecution for unlawful sale of intoxicating liquors — Under Section 4364-25, Revised Statutes — Evidence of refusal to sell at other times — Inadmissible—Error for court to charge that one may not treat guest to drink in his home, when — Laws of evidence.

    1. In the trial of a prosecution under section 4364-25, Revised Statutes, for keeping a place where intoxicating liquors are kept for sale, given and furnished as a beverage, and for an illegal sale of intoxicating liquors to be used as a beverage, it is error to admit, over the objection of the state, testimony that the defendant, at other times refused to sell or give away such liquor as a beverage to the same or other persons.
    2. Where, in such case, the evidence tends to show that the place was a room used for business purposes, and commonly called a barroom, and does not tend to show that the same was or had been used as a dwelling or part thereof, it is misleading, and for that reason error for the court to charge the jury that the law was never intended to prevent a man from, in his own home, treating a friend, if he is his guest, to a drink of liquor, for a man has a right to give to a guest, that is a visitor, to his home, as a guest, intoxicating liquors, if it be done in good faith and without any intention of violating the law. Such charge offends against the rule that the instructions to the jury should be confined to the case which the evidence tends to establish.
    (No. 10246
    Decided June 25, 1907.)
    Exceptions by the Prosecuting Attorney to the judgment of the Court of Common Pleas of Erie county.
    The defendant was tried on complaint brought under favor of section 4364-25, Revised Statutes, the first count charging him with unlawfully keeping a place in the township of Groton, in the county of Erie, continuously between April 18, 1904, and April 18, 1906, where intoxicating liquors were then and there kept for sale, given and furnished as a beverage, the said place being without the limits of any municipality, and the keeping of said place being then and there prohibited and unlawful.; and the' second count charged that on the-day of November, 1905, in the same township and county, and without the limits of any municipality, the defendant did sell to one Ross certain intoxicating liquors, to-wit, whisky, to be used as a beverage, the selling of the same then and there being prohibited and unlawful.
    The trial resulted in an acquittal, and this proceeding is brought by the prosecuting attorney under section 7306 of the Revised Statutes to determine the law' in any similar case.

      Mr. Roy H. Williams, prosecuting attorney, and Mr. W. B. Wheeler, for plaintiff in error,
    cited and commented upon the following authorities :
    Encyclopedia of Evidence, Vol. 7, 735; Corley v. State, 87 Ga., 332; Commonwealth v. Barlow, 97 Mass., 597; Commonwealth v. Bickum, 153 Mass., 386; Archer v. State, 45 Md., 33; Black on Intoxicating Liquors, Sec. 503; Barnes v. State, 20 Conn., 232.

      Mr. George C. Beis, for defendant in error,
    cited and commented upon the following authorities:
    Black on Intoxicating Liquors, Secs. 39 and 407; State v. Hutchins, 74 Ia., 20; Reynolds v. State, 73 Ala., 3; Albrecht v. People, 78 Ill., 510; State v. Standish, 37 Kans., 643; Powers v. Commonwealth, 13 S. W. Rep., 450; State v. Danforth,
      19 Atl. Rep., 229; Cruse v. Aden, Admx., 127 Ill., 231; Commonwealth v. Carey, 151 Pa. St., 368; Commonwealth v. Work, 151 Pa. St., 373.
   Speaír, J.

Two exceptions are presented. One relates to alleged -incompetent evidence introduced by defendant, and the other to the charge of the court to. the jury.

1. The state having introduced evidence to the-effect that defendant had kept and had -given away intoxicating liquors at his place to divers persons, and had sold whisky tó be drank there to one William Ross, the defendant on his part offered evidence of divers witnesses to the effect that they had tried to buy liquor of the defendant and hie had refused to sell it to them. This testimony was objected to by the state, but the objection was overruled, and the testimony admitted. Was it competent? We think it was not competent on either branch of the case. Evidence that one has violated the statute in the particular instances complained of can not be rebutted by testimony that he did not violate it every time, he had a chance. It- has no tendency to rebut, control or. explain the testimony offered on the part of the state. The opposite contention is illogical and its acceptance as law would tend to introduce at the trial an infinite number of incidents which the state could not be expected to be prepared to contradict, and it would needlessly prolong the trial and encumber the record. If this conclusion be correct then it was also error for the court to refuse the state’s request to instruct the jury to disregard all evidence offered by defendant tending to prove that persons sought to buy liquor of defendant and that he refused to sell to them. Authorities would seem hardly to be necessary but a few of many to be found in the books are here cited. Black on Intox. Liquors, sec. 503; Archer v. State, 45 Md., 33; Corley v. The State, 87 Ga., 332; Commonwealth v. Barlow, 97 Mass., 597; same v. Bickum, 153 Mass., 386.

2. The evidence given at the trial tended to show among other things that prior to the action which resulted in establishing prohibition in the township of Groton the defendant had been the keeper of a saloon known as the Seven Mile House, which was a part of the building in which he and his family resided; that the front room was a barroom; that he was also a butcher, and in connection with his other traffic he kept a shop for the sale of meats. He also entertained guests with meals and took care of the horses of guests who desired that service. Beer signs were painted on the windows. After the township had been voted dry, as it is called, he did not openly carry on the saloon business, but the other branches were continued as before, and the signs in the windows and the paraphernalia of the barroom, including counter, chairs, tables, etc., remained. It was in this room that the alleged sale and the keeping and giving away of liquor occurred. The evidence does not tend to show that this portion of the house was at any time used as a part of the dwelling, and appearances would seem to indicate that it was not so used.

Did the court give the proper instruction to the jury is the question on this branch of the case. At request of the state this instruction was given .before argument: “The keeping of a place where intoxicating liquors are given away to be drank as a beverage in a township which has voted against the sale of intoxicating liquors within its limits is illegal, and if you find beyond a reasonable doubt that the defendant during the time laid in the first count of the affidavit was the keeper of the Seven Mile House, so called, in Groton township, Erie county, Ohio, and that said township had on the 24th day of January, A. D. 1898, so voted - against the sale of intoxicating liquors within its limits, and that during said time intoxicating liquors were given away to be drank as a beverage in said Seven Mile House by the said defendant, as such keeper, it will be your duty to find the defendant guilty as charged in the first count of the affidavit.” At request of defendant the following instruction was given before argument, viz.: “The defendant cannot be convicted of keeping in his house, store, or in any room thereof liquor for his own use, or for giving the same away to a guest provided the giving away is done honestly, and in good faith, and not as a shift or device to evade the provisions of the law.”

In the general charge, after argument, the court further instructed the jury as follows:

“I will say to you in that connection, however, that notwithstanding this law, a man has a right to give to a guest, that is, a visitor to his home, who comes there as a visitor, as a guest, intoxicating liquors, if it is done in good faith and without any intention of violating the law. He may give to his family or his servants intoxicating liquors, if done simply as members of his family or servants in his employ or as guests in his household, but that does not mean that a. man may give away intoxicating liquors to anybody who, may come to his premises or be about his premises indiscriminately, whether they be guests or members of his family or not; and the question for you to determine under this first count of the affidavit is whether or not the defendant did any of. the acts complained of.

“On the other hand, if the fact should be that the defendant simply treated his guests as they appeared from time to time, in the usual and ordinary way, without any intention of violating any law, then you would not be justified in finding that he had violated the law.

“The question is a question of fact for you to determine, if the defendant gave any intoxicating liquors to people who called at his place, whether he gave it to. them simply as his guest, if they were his guests, or whether he gave it to people who came there for. the sole purpose of getting drink there, or whether defendant gave it. to people who called in a business way and for the sole purpose of aiding him in his business and as a benefit to his business. ' If you should believe he gave it away for the purpose of assisting him or aiding him in his business, or benefiting him in his business, and to persons whose sole purpose was to drink intoxicating liquors, you would be justified in finding him guilty. On the other hand, if you find he only gave it to guests who called at his place and were visitors to him and with him at his home, then you would iiot be justified in finding him guilty. The law was never intended to prevent a man from, in his own home or in his own place of business, treating a friend, if he is his guest, to a drink of liquor. On' the other hand, the law was intended to prevent any shift or device or any scheme o.f giving intoxicating liquor out and distributing it among the different callers at his place for the purpose.of avoiding the effect of the local option law which the people had adopted.

“The word ‘beverage’ means ordinarily mixed drinks, but as I construe it under this law, it means the giving of intoxicating liquors or selling of intoxicating liquors to be drank not for medicinal purposes, not .given to a guest, but given to a person who may resort to a place for the purpose of drinking intoxicating liquors, giving it in other words as a device or shift or method to avoid the effect of the local option law.”

Section 4364-25, the section known as the township local option law, provides that “it shall be unlawful for any person within the limits of such township and without the limits of such municipal corporation to sell, furnish or give away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away or furnished.” It is to be noticed that no definition is here furnished of the term “give away,” and no description of the word “place,” as is to be found in later legislation on the same subject, and as is also given in many decisions to which attention has been called. However, the statute not being aimed at the moderate use of intoxicating liquors, but rather at the suppression of the evils resulting from the traffic, a fair construction of the statute quoted would seem to warrant engrafting upon it a qualification in two respects: (1) That the interdiction of giving away should not include such an act when it is one of. mere hospitality, the act not offending against any other statutory provision; and (2) that the inhibition against keeping a place where such liquors are given away, should not apply to the private dwelling of such person unless the dwelling is a place of public resort. As said in State v. Danforth, 62 Vt., 188: “The idea of the statute is that a person in his own house, at his own table, or in his own dwelling- house, may give away to his family or friends, intoxicating liquors unless by so doing his dwelling house becomes a place of public resort.” The statute in general terms prohibits the act, and if an exception is to be availed of to exonerate the defendant it is only fair to hold that the facts on which the exception rests must appear by the evidence. No such exonerating facts appear in this case with respect to the place, and hence the instructions bearing upon that feature given by the court to the jury were at least misleading. The giving away, as well as the alleged selling, occurred in the room known as the barroom, a business room and not a dwelling. We think, also, that the court dwelt with too much emphasis, and too frequent repetition, upon the intent of the defendant. While it is true that the giving away as a device, or shift, or method adopted to avoid the effect of the law, would be a violation of it, yet it is not correct to say, or intimate, that such device or shift, or intent to evade, must be made to appear in order to justify conviction. It is the keeping of a place where such liquors are kept and unlawfully given away which constitutes the offense of keeping a place, and not the intent with which the place is kept, or the giving away conducted.

It is not intended here to hold that it would be impossible to dispense “hospitality” of the kiñd hereinbefore indicated at a place other than one’s dwelling without violating this statute, but it is within bounds to say that the giving away, at such place, to people indiscriminately, or with such frequency as to appear to be habitual, or to cause the place to become a resort, would be a violation of the statute, and this without reference to*the,, intent of the owner.

Exceptions sustained.

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


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    The City of Dayton v. Glaser.

      Municipal corporation must Peep streets free 'from nuisance — But not insurer of safety of persons using them, when.

    A municipal corporation is charged with the duty of keeping its streets free from nuisance and in a reasonably safe condition for travel in the usual modes, but it is not an insurer of the safety of persons using them, and when they are in that condition it is not chargeable with negligence, although an accident happens in the use of the streets.
    (No. 9991
    Decided June 25, 1907.)
    Error to the Circuit Court of Montgomery county.
    The plaintiff, defendant in error, in his amended petition, avers that he was driving in a grocery wagon upon one of the streets of the city, that the street was out of repair and dangerous to travel thereon in vehicles, because of the great number of holes therein from three to i five inches deep, when the wheels of the wagon ran into two of the holes, whereby it was so severely jolted that the curtains, which were rolled up and buttoned at the top, were unloosened, and being blown downward and outward by the wind and making a. noise, the plaintiff’s horse frightened thereat and ran away and threw plaintiff out, whereby he was permanently injured.
    A general demurrer being overruled the city answered, and at the close of plaintiff’s evidence the court directed a verdict for the defendant. On error the circuit court reversed.

      Mr. Thomas B. Herrman, city solicitor; Mr. P. G. Burnham; Mr. W. D. Cline and Mr. C. J. Brennan,. for plaintiff in error.
    •' The question what constitutes contributory negligence by persons going upon streets which they know to be in a dangerous condition, has been passed upon by this court in numerous cases. Schaefler v. City of Sandusky, 33 Ohio St., 246.
    We think the case at bar comes plainly within the rule laid down in the Schaefler case.
    (A) Glaser, by his own admission, acknowledges that he knew of tlie conditions of Keowee street, and had been over it many times before, and that he voluntarily attempted to pass over the street.
    (B) He could easily have avoided going over the dangerous part by taking the street car track, •as he had frequently done before, and which the testimony shows was in a good passable condition at that time.
    (C) Or, he could have gone another route, somewhat longer and less convenient, it is true, but not being in a hurry it would have been the safe course for him to have pursued in view of his knowledge of the condition of Keowee street. Village of Bond Hill v. Atkinson, Admx., 16 C. C., 470; City of Norwalk v. Tuttle, 73 Ohio St., 242; City of Cleveland v. Stofer, decided without report April 30, 1895, and cited in 33 W. L. B., 227; City of Akron v. Keister, 6 C. C., N. S., 603; Farmer v. Railway Co., 60 Ohio St., 36.
    The great weight of American authority .is in favor of the rule that a private action can not be maintained against a town, county or other quasi public corporation, for the neglect of a public duty, or of a duty imposed alike on all similar corporations, unless the liability to such action is expressly created by statute. Buswell on Personal Injuries, Secs. 53 and 168.
    The statute creating the liability (in this case Section 1535-131, Revised Statutes) is to be construed strictly in favor of the defendant.
    In the case at bar, two separate and distinct causes are alleged as combining to have led to the injuries complained of.
    1. The alleged defects existing in Keowee street at the time; and
    2. The wind which caused the curtains, which were jarred loose by the wagon dropping into the holes in the street, to blow outward and upward.
    The petition alleges and the proof shows that these two causes “together frightened said horse to such extent that he ran away and caused the injuries complained of.” Bitting v. Maxatawney Township, 177 Pa. St., 213; Marble v. City of Worcester, 4 Gray, 397.

      We call attention'to the fact that the rule as to a responsible intervening cause concurring in the accident can not be applied in this case since the wind as a cause is a factor over which neither had or could have control, and its existence at this time and at this place could not have been reasonably anticipated. Trust Co. v. Railway Co., 57 Fed. Rep., 441; West Mahanoy Township v. Watson, 116 Pa. St., 344.

      Messrs. Wright & Ozias, for defendant in error.
    There are two degrees of danger, the highest, where the danger is great, imminent, and obvious, or where the danger is so great, that no man of ordinary prudence would undertake to encounter it, and about which reasonable men would not differ. In this class, the courts have used the words, “reckless exposure,” “certain injury,” “fool hardy,” “took desperate chances,” “trusted in Providence and not in the circumstances,” and the like.
    All degrees of danger below the highest, are for a jury. Samples v. City of Atlanta, 95 Ga., 110.
    The true rule we contend for is, that a case should not be taken from a jury, unless the danger is of the highest degree.
    Glaser’s knowledge of the defects, is certainly not enough to show he was guilty of contributory negligence, for in all the cases we shall cite on this point, previous knowledge is shown.
    Also, we contend, that it is not enough that the facts are undisputed, for the inferences from the facts are a part of the evidence, and they must be such as admit of no rational inference, but that of negligence, or as otherwise stated, an inference concerning which reasonable men will not differ.
    In support of the rules we contend for on this point, we cite the following authorities, to wit:

      Railway Co. v. Crawford, Admr., 24 Ohio St., 631; Railway Co. v. Murphy, Admr., 50 Ohio St., 135; Railway Co. v. Ives, 144 U. S., 417; Railway Co. v. Prescott, 59 Fed. Rep., 239; Smith v. City of Spokane, 16 Wash., 403; Lyman v. Inhabitants of Amherst, 107 Mass., 339; Coffin v. Inhabitants of Palmer, 162 Mass., 192; Bullock v. Mayor et al., 99 N. Y., 654; Diveny v. City of Elmira, 51 N. Y., 506; Maultby v. City of Leavenworth, 28 Kan., 745; Malloy v. City of St. Paul, 54 Minn., 398; Ouverson v. City of Grafton, 5 N. D., 281; City of Highlands v. Raine, 23 Colo., 295; Hart v. Town of Red Cedar, 63 Wis., 634; Mayor, etc. v. Holmes, 39 Md., 243; Dwyer v. Salt Lake City, 19 Utah, 521; Loewer v. City of Sedalia, 77 Mo., 431; Allen v. Du Bois Borough, 181 Pa. St., 184; City of Sandwich v. Dolan, 141 Ill., 431; City of Flora v. Naney, 136 Ill., 45; Viner et al. v. Steamship Co., 50 N. Y., 23.
    And we find no decisions in conflict with this rule. It would be strange indeed if Ohio should be in conflict with this rule; but it is not. It concurs in such rule. Hogg v. Canal & Mfg. Co., 5 Ohio, 410; Bohaslav v. Oil Co., 2 Cleve. L. R., 337; Railway Co. v. Fitzpatrick, 31 Ohio St., 479; Railway Cp. v. Murphy, Admr., 50 Ohio St., 135; City of Toledo v. Center, 16 C. C., 308, affirmed, no report; 15 Am. & Eng. Ency. Law, 468 and 469; Village of Conneaut v. Naef, 54 Ohio St., 529.
    Plaintiff in error claims that it was Glaser’s duty to have gone around by another street, and not have used Keowee street or, that he should have driven on the part of Keowee street occupied and used with a double track by the street railway company. Neither of these propositions are tenable. The courts hold that such circumstances may be considered by a jury, but not on a motion for non-suit.
    The following authorities sustain us on this point, to-wit: Carstesen v. Town of Stratford et al., 67 Conn., 428; Village of Clayton v. Brooks, 150 Ill., 97; Town of Fowler v. Linquist, 138 Ind.,, 566; Wellman v. Borough of Susquehanna Depot, 167 Pa. St., 239; Chilton v. City of Carbondale, 160 Pa. St., 463; Cairncross v. Village of Pewaukee, 86 Wis., 181.
    The basis of the plaintiff in error’s claim is, that where the act of God, together with defendant’s negligence join in producing the injury, the act of God will be deemed the efficient cause, and the defendant will not be liable.
    The authorities cited by counsel for the city of Dayton do not sustain the position taken, and the universal weight of authority is to the contrary. The reason given by counsel for the rule contended for is, that “the wind could not have been foreseen by plaintiff in error.” This particular wind may not have been foreseen, but the city was bound by the general knowledge, that winds do blow, and are- liable to blow at any time, especially in March. In order to relieve a defendant from liability where the act of God joins such defendant in producing the injury, it must be shown that act of God was extraordinary. This is the distinction made by all the authorities. That, as to ordinary and usual acts of nature the defendant is bound to foresee them.
   Summers, J.

It is elementary law that a city is not an insurer against accidents to persons traveling upon its streets, but that respecting them it has fully discharged its duty to such persons when it maintains its streets in a reasonably safe condition for use in the usual mode by day and by night. However, in view of the many instances in which cities are held liable, it would not be surprising' if the taxpayer should prefer that the city be held to be an insurer, with liability subject to the usual conditions.

The right to use the streets, whether thoroughfares, extending out into the surrounding territory, or merely local or crossways, from one thoroughfare'to another, does not depend upon citizenship or residence in the city. The streets are for the use of the public. The duty to maintain them is governmental, and the liability of the city for damages for injuries resulting from negligence in the maintaining of .them, in" the absence of a statute imposing the liability, is questioned.

- That the streets are not maintained in a better condition is owing generally to a lack of funds and mulcting the city in damages for injuries occasioned by their condition does not tend to remove, but only to aggravate, the cause of it. In this state the law is as above stated, but frequently it is so misapplied that a municipality is subjected to a liability never contemplated.

It was never intended that a .city should be required to keep its streets as' smooth as the floor of a skating rink or in such condition that a traveler may safely use them without exercising’ his own senses, and yet not infrequently a city is held liable for an injury resulting from the slightest defect or obstruction. This is to make the city an insurer. The duty is to "make the streets, reasonably safe for travel in the ordinary modes, and the inquiry should be, not was there some defect or obstruction in the street, but, was the street, •in the condition it is proven to have been in, with the defect or obstruction, in a reasonably safe condition for travel in the ordinary modes at the time the accident happened, and was the accident the natural and probable result of the use of the street in that condition, and one that should have been foreseen by those charged with the duty of maintaining the street; and if there is evidence ■tending to show contributory negligence, when that is an issue, did The plaintiff exercise such care as a reasonable and prudent person would ordinarily, that is generally, exercise under the circumstances, and would the accident have happened if such care had been exercised.

The street on which the accident happened had been paved with asphalt, which was two and one-half inches thick upon a concrete base, and had been worn out and broken out in many places, and the wheels of vehicles as they would drop info these places wore them deeper, so that there were many holes in the street from one to four inches in depth, and some of them extending over three or four square feet of the surface. The street was much traveled, its condition was plainly apparent and was well known to the plaintiff. The accident happened on a windy day in March. ■The plaintiff was driving his two-year-old colt to a strange wagon. The horse of a groceryman was taken sick and the plaintiff was induced to hitch his colt to the groceryman’s wagon and to drive about the city so that the groceryman’s clerk might take orders. They ha-d gone but a short distance when one of the front wheels ran into one of the holes or depressions in the street, causing the injury, as already stated. It is not necessary to consider whether the hole is the proximate cause of the injury' or whether the wind was an intervening cause, for we are of the opinion that the street was in a reasonably safe condition and that the accident or any accident, was not the natural or probable result of' using the street, and such as should have been foreseen.

The street had been for a long time in this condition, it was much traveled daily and no other accident had resulted from its use. Without stirring outside of the state house grounds like holes may be found in the walks.

In Beltz v. City of Yonkers, 148 N. Y., 67, the plaintiff, while walking on .the sidewalk along one of the principal streets of the city, fell and broke her leg. The sidewalk was constructed of two courses of stone flagging four feet in width. At a joint, where two of the flags came together, pieces had been broken off and removed, leaving a depression in the center of the walk two and one-half inches deep, two feet long and about seven and one-half inches in width. O’Brien, J., in the opinion says: “Assuming that the defendant’s officers were men of reasonable prudence and judgment, could they, in the reasonable exercise of these qualities, have anticipated this accident or a similar one from the existence of this depression in the walk? They could undoubtedly have repaired it at very little expense, but the omission to do. so does not show or tend, to show that they ■were negligent unless the defect was of such a character that a reasonably prudent man should, anticipated some danger to travelers on the walk if not repaired. If the existence of such a defect is to be deemed evidence of negligence on the part of the city, then there is scarcely any street in any city that is reasonably safe within the rule, and when accidents occur the municipality must be treated, practically, as an insurer against accidents in its streets. The law does not prescribe a measure of duty so impossible of fulfillment or a rule of liability so. unjust and severe. It imposes upon municipal corporations the duty ■ of guarding against such dangers as can' or ought to be anticipated or foreseen in the exercise of reasonable prudence and care. But when an accident happens by reason of some slight defect from which danger was not reasonably to be anticipated, and which, according to common experience, was not likely to happen, it is not chargeable with negligence.”

And in Grant v. Town of Enfield, 11 N. Y. App. Div., 358, where the injury resulted from a hole, in oné of the highways, which was basin-like in shape, several feet in length, and only three. or four inches deep, the court reversed for error in denying a motion to non-suit. There are other cases cited in these reports. In Morgan v. City of Lewiston, 91 Me., 566, the facts were that the plaintiff was-injured by stumbling at the junction of two sidewalks at the intersection of two streets. There was a difference of five or six inches in the grade of the two walks and the fall was • in the night-time. The court ruled as a matter of law that the sidewalks were in a reasonably safe condition.

The judgment of the circuit court is reversed and that the court of common pleas is affirmed.

Shauck, C. J., Price* Crew, Spear and Davis* JJ-, concur.


text:
    The Louisville & Nashville Railroad Company v. The City of Cincinnati.

      Public streets and grounds are held in trust for the public — Subject to rights of abutting owners — Under control of legislative power of state — Municipal authorities may grant right of way to railroads', when — Sections 3283, 3337-1, 3337-17» and 3337-176, Revised Statutes, construed — Rights of eminent domain — Ordinance of Cincinnati council as to right of ivay for L. & N. railroad — Passed November 7, 1904, and amended August 28, 1905, is void — Municipal law.

    1. Public streets, squares, landings and grounds are held in trust for the public, and being so held they, are, for the use for which they were dedicated or acquired and subject to the property rights of the abutting owners, under the absolute control of the legislative power of the state. In this state the care, supervision and control of public highways, streets and grounds in cities is delegated to the council; but, notwithstanding this delegation of general power over them, the state, now and since 1852, has in'express terms delegated to cities the power to grant to railroad companies the right to occupy or incumber and use them, or in express terms has‘made the right subject to agreement with the municipal authorities as -to the manner in which they are to be occupied, so that the general power of care, supervision and control, that has been delegated to cities,does not carry with it the power to'grant such right. . ;

      2. Neither Sections 3283, 3337-1, 3337-170, 3337-17&, nor the act entitled: “An act to provide how railroad and highway crossings may be constructed,” 97 Ohio Laws, 546, authorize, a municipality to grant to a railroad company the right to • occupy-a public common or landing with an elevated railroad structure.
    3. It is not in the power of the legislature, unless in the exercise of the power of eminent domain, to authorize property, dedicated to the public for a specific purpose, to be used for a purpose inconsistent with the purpose for which it was dedicated.
    •4. The ordinance of the council of the city of Cincinnati, entitled: “An ordinance agreeing upon the manner, terms and conditions upon which The Louisville & Nashville Railroad Company may use, occupy and cross over, along and upon the streets, alleys and public grounds of the city of Cincinnati, for the purpose of constructing, maintaining and operating an -extension of its steam railroad from a point at or near pier No. 1, on- the Ohio side of the Newport and Cincinnati bridge in the city of Cincinnati, to the site of a proposed depot south of Water street, between. Vine and Plum streets, in said city,” passed November 7, 1904, and' as amended August 28, 1905, is void.
    (No. 10400
    Decided, June 25, 1907.)
    ' Error to the. Superior Court of Cincinnati, Ohio.
    In the year 1789 the proprietors of a tract 'of land on the Ohio river laid out the town of Cincinnati. On the plat or plan- of the town the ground lying between Front street and the river was set apart as a common for the use and benefit of the town forever, reserving only the right of a ferry. This common extends from Broadway street on the east to Main street,on the west and from the river on the south to Front street on the north, and is about five hundred feet wide by one thousand feet in length. The city of Cincinnati has now become a great.city, and a number of its streets open into this common, or, as it is usually denominated, public landing. In the briefs of one of the counsel it is said that every municipality on both banks of the Ohio river has its public landing, but that Cincinnati, in this respect, has exercised less foresight than any city between Pitts-burg and Cairo, for, of its twenty miles of river front, this is the only part reserved as a means of public access to the river, and with' slight exception all of the river front above and below is occupied by railroads.
    The Louisville & Nashville Railroad had for many years entered the city of Cincinnati on a bridge over the Ohio, connecting Newport, Kentucky, with Cincinnati, east of the public landing, and had used, for its yards and station property, land east of the bridge. The increase in its business made larger terminal facilities a necessity, and in the year 1904 the company entered upon the work of providing them. The site procured is located on the water front and is west of the public landing. To reach this site with a practicable structure required, it is said, the exercise of considerable engineering skill; that it was necessary to construct a western approach to the bridge and that west of the point where the approach would leave the bridge was another bridge, known as the Broadway and Newport bridge, so situated that the approach to be constructed must be made to a grade low enough for trains to pass in safety beneath that bridge. And, going thence westwardly, the approach passed first over private property and then had to cross the public landing and west of the public landing to pass under the suspension bridge, connecting Covington with Cincinnati.

      The railroad having perfected its plans applied to the council of the city of Cincinnati, to grant it the right to occupy and cross over, along and upon the streets, alleys and public lands of the city ■for the purpose of constructing, maintaining and operating an extension of its railroad. And on '.November 7, 1904, the council of the city passed .-an ordinance entitled: “An ordinance, agreeing upon the. manner, terms and conditions upon which The Louisville and Nashville Railroad Company 'may use, occupy and cross over, along and upon cthe streets, alleys and public grounds of the city of ■Cincinnati for the purpose of constructing, maintaining and operating an extension of its steam railroad from a point at or near pier No. 1, on •the Ohio side of the Newport and Cincinnati bridge in the city of Cincinnati, to the site of a proposed depot south of Water street, between .Vine and Plum streets, in said city.” Section 1 .of this ordinance was amended by an ordinance •passed August 28, 1905.
    . The route describéd in the amended ordinance is as follows: Beginning at pier No. 1 of the Newport and Cincinnati bridge; thence over private property with a curve to the left one hundred and fifty-two feet; thence ■ over the same with a curve to the left two hundred and' seventy-.six feet to the south side of Front street, twenty-.seven feet west of the east side of .Pike street expended; thence over- the south sidewalk of Front street, seventy-five feet; thence. over the same with a curve to the left eighty-four feet; thence over private property with the same curve one hundred and twenty-one feet; thence over the same with a straight line seventy-three feet; thence over the same with a curve to the right eighty-seven feet to the east side of Lawrence street, ninety feet south of the south side of Front street; thence across Lawrence street with the same curve fifty-four feet; thence over private property with the same curve fifty-four feet; thence over the same with a straight line ten' feet north of Griffin street and parallel thereto four hundred and forty-eight feet to the east side of Ludlow street; thence across Ludlow street with the same straight line seventy-one feet;' thence over private property with the same straight line one hundred and sixty-one feet;' thence over the • same with a curve to the' right two hundred and' sixty-nine feet; thence over the same with a straight line forty-seven feet; thence over the same with a curve to the left one hundred and twenty-six feet; thence over the same with a straight line, eight feet north of the United States harbor line and parallel thereto eight hundred and forty-six feet; thence over the same with a curve to the left thirty-six feet to the west side of Main street, seven feet north of the south side of Water street; thence over the south sidewalk of Water street with the same curve-twenty-one feet; thence over private property with the same curve sixty-eight' feet; thence over the same with a straight line forty-two feet; thence over .the same with a curve to the right one hun-' dred and six feet; thence over the same with a straight line eighty-four feet; thence over the same with a curve to the right sixty feet; thence over the same with a straight line six and one-half feet north of the United States harbor line and parallel thereto forty-seven feet to the east side of Walnut street; thence across Walnut street with the same straight line sixty-five feet; thence over private property with the same straight line four hundred and six feet to the east side of Vine street; thence across Vine street with the samé straight line sixty-seven feet to the freight yard of the Louisville and Nashville Railroad.
    Also beginning at a point on the above described line one hundred and ninety feet east of the east side of Walnut street; thence over private property with- a turnout 'for a No. 8 frog into a straight line parallel to the above described line and fourteen and one-half feet northward therefrom, one hundred and eighty-seven feet to the east side of Walnut street; thence across Walnut street with the same straight line sixty-five feet; thence over private property with the same straight line two hundred and fifty-eight feet; thence over the same with a curve to the right one hundred and forty-five feet to the east side of Vine street, one hundred and seventy-three feet south of the south side of Water street; thence across Vine street with the same- curve sixty-seven feet to the freight yards of the Louisville & Nashville Railroad Company.
    Also beginning at a point in the last above described line twenty-six feet east of the east side of Vine street; thence over private property with a straight line twenty-six feet to the east side of Vine street; thence across Vine street with the same straight line sixty-one feet to the freight yards of the Louisville & Nashville Railroad Company.
    Also beginning at a point in the last above described line fifteen feet east of the west side of Vine street, thence across Vine street fifteen feet with a turnout for a No. 8 frog to the freight yards of the Louisville & Nashville Railroad Company.
    The ordinance then describes the structure as follows:
    The said extension shall consist of an elevated viaduct from the Newport and Cincinnati bridge to a point about two hundred (200) feet west of Walnut street, which viaduct shall be for a single track from the bridge to a point one hundred and ninety (190) feet east of Walnut street, from which point it shall be for two tracks. The viaduct shall be constructed with two lines of steel girders for each track, spaced nine (9) feet apart, center to center, supported at varying intervals by steel bents, consisting of two posts braced together transversely by horizontal and diagonal braces and generally (except across the Public Landing) braced together similarly in pairs to form towers.
    These posts shall be supported on concrete piers or pedestals, which, on all streets and other public property, shall be below the level of the ground.
    The viaduct on Front street shall be carried by seven bents with vertical posts and the posts of the central five bents shall be at least eight (8) feet apart in the clear, with the northern posts on the north edge of the sidewalk so placed as to clear the roadway entirely. The two end bents shall have their northern posts set eight (8) feet south in the clear from the curb and the southern posts shall be on private property. The transverse bracing of all of these bents shall be so constructed as to give a vertical clearance ■between' the posts for pedestrians using the sidewalk of at least eight (8) feet, and the longitudinal bracing between the bents so as to give a vertical clearance for vehicles of at least fifteen (15) feet. The distance between the bents shall not be less than twenty-nine (29) feet, center ;to center, when measured along the center line of track.
    Lawrence street shall be crossed by a clear span -not less than twenty-two (22) feet above the roadway, with no supports within the street lines.
    Ludlow street shall have a clear span over the -roadway at least fifteen (15) feet six (6) inches :in the clear above the same. There shall be a bent in each sidewalk at right angles to the via■duct with the post nearest the- roadway set close •to'the curb and a clear space of at least eight (8) feet between it and. the next bent toward the build-: ■:ing- line.
    ■ ' Upon the Public Landing there shall be no longitudinal bracing, thus permitting unobstructed travel between all the bents.' The minimum vertical clearance shall be twelve (12) feet: The
    bents shall have vertical posts nine (9)' feet apart transversely from center to center. The general length of the .spans shall be twenty-five (25) feet; center to center of bents, but upon the curved portions' of the viaduct at the two ends of the landing the spans shall be twenty-four and one-half (24^2) feet, center to center of bents, when measured :along center line of track. There shall be six such spans at the east end and two such spans at the., west end. ’ ■
    Upon the south sidewalk, of .Water street, just west., of 'Main! street, ..there shall, be one bent with its north post set close to the curb, so as to give a clear' space of at least eight (8) feet between it and the building line. The south post of this bent shall be upon private property.
    At Walnut street the viaduct shall have two tracks.' In the eastern sidewalk there shall be a double bent at right angles to the viaduct, with its southern post at least eight (8) feet from the curb line extended. The roadway shall be crossed by two (2) thirty-foot spans with a vertical clearance of not less than twelve (12) feet, the double bent in the western sidewalk being at right angles to the viaduct and having its southern post close to thé building line.
    At Vine street there shall be four tracks, the three northern ones being laid so as to carry the street travel ovér them at grade, the southern one being carried over the street with a vertical clearance of not less than twelve (12) feet above the roadway on bents not less than twelve (12) feet apart.
    It is also provided in Section 4 of the ordinance that “the said company shall also have the right to construct and use sidetracks from its own mam and connecting tracks, as herein authorized, to the property of adjacent proprietors and shippers of freight who may desire the same, and to its. proposed depot and yards west of Vine street.” It is also provided in Section 2 of the ordinance that “said structure shall be of such height and character as not to interfere with the ordináry travel over such street, alley or public ground.” It is also provided in Section 4 of the ordinance that the grant is upon the condition that the railroad company shall at its own expense acquire the private property necessary for its tracks, and in Section 5 it is provided that “nothing in this ordinance contained shall be held or taken to confer upon said railroad company any right or interest in the private property of any person or company adjacent to or abutting upon the streets, avenues and public ways herein authorized to be used or occupied.”
    The railroad company, so it is said, had expended about $600,000.00 in the- purchase of the site for its yards and station, about $400,000.00 for private rights of way for the new bridge approach and had contracted for the construction of the new approach at a cost of about $175,000.00, and concrete foundations, for supporting the steel pillars, had been constructed, from the new approach to the bridge to western side of the public landing, and a part of the structure, between the approach and the public landing, had been erected, when the city solicitor brought this action in the name of the city, in the Superior Court of Cincinnati, at special term, to enjoin the erection of the structure across the streets and alleys and upon the Public Landing.
    A temporary injunction was allowed in. that court, and it subsequently overruled a motion to dissolve it, and thereupon error was prosecuted m the general term, where the order was affirmed, and error'is now prosecuted in this court.

      Mr. H. L. Stone and Messrs. Kinkead, Roger r & Ellis, for plaintiffs- in error.
    A railroad company may lawfully place supports in the streets or public grounds of a city for an overhead railroad crossing, provided the permission of council be first obtained. Act of May 3, 1904 (97 O. L., 546); Manning Bowman & Co. v. Keenan et al., 73 N. Y., 45; City of Cincinnati v. White’s Lessee, 6 Pet., 431; 15 Am. & Eng. Ency. Law, 2d Ed., 350; State v. Eastman, 109 N. C., 783; State v. Long, 94 N. C., 896; Commonwealth v. Bowman, 3 Pa. St., 206; State v. Wilkinson, 2 Vt., 480; Lewis’ Sutherland Statutory Construction, 2d Ed., Vol. 2, Sec. 491, p. 918; Brown et al. v. Maryland, 12 Wheat., 419; Hankings v. People, 106 Ill., 628; State v. Showers, 34 Kans., 269; Railroad Co. v. City of Buffalo, 158 N. Y., 266; Sections 3283, 3337-1, 3337~27a and 3337-17b, Revised Statutes.
    The exercises by a municipal corporation of the discretion entrusted to it, so long as such corporation acts in good faith and within the limits of its authority, is not subject to judicial revision.

      Railroad Co. v. City of Dayton, 23 Ohio St., 510; Railroad Co. v. City of Ironton, 19 Ohio St., 299; Sims v. Railroad Co., 37 Ohio St., 556; Coppin v. Hermann et al., Trustees et al., 63 Ohio St., 572; State, ex rel., v. Hermann et al., 63 Ohio St., 440; Dillon on Municipal Corporations, 4th Ed., Secs. 94 and 95; Mechem on- Public Officers, Sec. 945; High on Injunctions, 4th Ed., Sec. 1240.
    The city is estopped to deny by suit of its city solicitor the validity of the ordinances in this case.

      City of Mt. Vernon v. State, ex rel., 71 Ohio St., 428; Electric Light Co. v. City of Wyandotte, 124 Mich., 43; Railway Co. v. Village of Carthage, 18 C. C., 216; 62 Ohio St., 636; City of Chicago v. Stock Yards Co., 164 Ill., 224; Lane v. Kennedy, et al., 13 Ohio St., 42; Elster v. City of

      Springfield, 49 Ohio St., 82; Dillon on Municipal Corporations, Vol. 2, Sec. 675; Sections 3542 and 3548a, Revised Statutes.

      Mr. Jesse Lowman, city solicitor, and Mr. W. A. DeCamp, for defendant in error.
    The order below should be affirmed irrespective of the questions presented in plaintiff in error’s brief.
    • In considering the single question raised by the record as before stated, it is valuable to note the views of other appellate tribunals and text-writers as to the rule applied by the higher courts in reviewing interlocutory orders granting injunctions or dissolving the same. High on Injunctions, Secs. 1467 and 1696; Ferry, et al. v. Gottlieb, et al., 45 Ohio St., 195; McGrath, et al. v. Cowen, et al., 57 Ohio St., 395; Railway Co. v. Felton, 13 O. F. D., 455; Printing Press Co. v. Printing Press & Mfg. Co., 16 C. C. A., 220; 69 Fed. Rep., 250; City of Newton v. Levis, 79 Fed. Rep., 715.
    . Assuming that the ordinances authorized thip railroad to occupy the public streets and grounds, were valid, and passed in the exercise of lawful power, the court will note that Section 2 of the original ordinance constituted' a condition to the permission granted which made it necessary for the'railroad to build the structure in such a way as not to interfere with the ordinary travel over the streets or public grounds from a point between Vine and Walnut eastwardly to the' Newport bridge. Russell v. Farley, 105 U. S., 433; Spelling Extraordinary Relief, Sec. 1032.

      The council has no power under Section 3283, Revised Statutes, to authorize the occupation of a highway by a structure which will interfere' with its free and unobstructed use. The meaning of Section 1777 is to preserve to the municipal corporation its rights. Gas & Water Co. v. City of Elyria, 57 Ohio St., 374; Gas Light Co. v. City of Zanesville, 47 Ohio St., 50. It is not necessary for the council of the municipality to authorize proceedings under this section. State, ex rel., v. Bowers, Treas., C. C., N. S., 345; 70 Ohio St., 423; Railway Co. v. Elyria, 69 Ohio St., 414; Railroad Co. v. City of Defiance, 52 Ohio St., 262; City of Zanesville v. Fannan, 53 Ohio St., 605.
    The views of our supreme court concerning this subject, have received the approbation of the Supreme Court of the United States, in the case’ of Railroad Co. v. City of Defiance, 167 U. S., 88, where the same case reported in 52 Ohio St., 262, was affirmed, and it was distinctly decided that the effect' of Section 3283, Revised Statutes, was simply to give a license to the railroad company to erect its bridges in a certain manner, and that such permission did not constitute a contract permitting the permanent maintenance of such bridges.
    The question involved in this case concerns th<? powers of council, and not whether the court can review the discretion of council. Railroad Co. v. City of Dayton, 23 Ohio St., 510; State, ex rel., v. Gas Co., 37 Ohio St., 45; Sims v. City of Toledo, 37 Ohio St., 556.
    Consequently, the council having power to determine when it was beneficial to grant an extension could not have its action reviewable unless fraud or bad faith was shown. Coppin v. Hermann

      et al., Trustees, 7 N. P. 529; 63 Ohio St., 572; Dillon on Municipal Corporations, Section 94; Heddleston, Supervisor, v. Hendricks, 52 Ohio St., 460; McQuillan on Municipal Ordinances, Sec. 182.

      Mr. J. W. Warrington argued orally on behalf of the city of Cincinnati.

      Mr. Robert Ramsey argued orally on behalf of the Louisville and Nashville Railroad Company.

      Mr. Albert Bettinger submitted an intervening brief on behalf of the Ohio Valley Improvement Association.
   Summers, J.

It is averred in the petition “that the Public Landing of said city is about one thousand feet in length, east and west, and that its grade from north to south descends to the river quite abruptly; that the vehicular traffic which goes upon and down said Public Landing is very heavy at all times, and that all merchandise coming into the city at such Public Landing and departing therefrom, must be hauled up and down this Public Landing on a heavy grade, and that the elevated structure about to be erected by the defendant railroad consists of forty or more bents or supports of steel, which are only 25 feet apart, from center to center, and whose 'actual clearance for vehicular traffic is not over 22 J4 feet at the ground, and not over 23 feet higher up; and that the vertical clearance or headway of these spans at the east and west ends of the Public Landing are only 12 feet, and towards the center of said Public Landing the clearance height at the highest point is only 13 feet tea inches; and such structure will-be of such height, character and size, and the steel supports so numerous and so situated as to be a public nuisance and greatly impede and obstruct the public travel on said landing.

“Plaintiff further says that owing to the grade on the Public Landing, the vehicles which use the same can not go straight down or come straight up the same, but must travel thereon obliquely in order to accomplish the ascent or descent; and that the elevated structure contemplated by defendant company is placed near the top of the bank of the river, with the bents or supports situated-at right angles to the river, so that travel as it approaches said viaduct, is compelled to go due north or south in order to avail itself of the full width of the span, or else approach and pass under said structure at an angle whereby the space for passing is greatly reduced.

“Plaintiff further says that the support or bent in Walnut street and the numerous bents or supports in Vine street, whereby less than 12 feet space is provided for vehicular traffic, will so obstruct traffic through said streets as to cut off the public from the use and enjoyment of the same to a material degree.”

And it is further averred “that the method of construction over said streets and public grounds proposed by defendant railroad company will be such as to interfere with the ordinary travel over said streets and the Public Landing, will be á nuisance, and will seriously and permanently obstruct travel over said streets and grounds and exclude the public and the plaintiff from the' use and enjoyment thereof, to the irreparable damage of the public and this plaintiff.”

.The prayer of the petitioner is for a temporary restraining order, and that upon a final hearing the ordinances may be declared null and void, and that a permanent injunction may issue to prevent the erection of the structure upon the streets and alleys and public landing, • and for a mandatory .order requiring the removal of the structures already 'erected.

The hearing of the motion to dissolve occupied the attention of the court for quite a number of days, and a- bill of exceptions containing more than six hundred pages of testimony was taken. ■ There is no finding of facts, and the answer of the railroad company was not filed -until aftér the overruling of the motion' to dissolve the temporary in-' -junction, and the case has not been heard in the trial court on the merits. Under a former ruling of this court (Burke v. Railway Co., 45 Ohio St., 631) an order overruling a motion to dissolve an injunction is-an order affecting a substantial right made in a special, proceeding which may be reviewed on error, and counsel for the city contend that where that is the only error complained of the only question presented is whether the court used its legal discretion in allowing the injunction .to remain in force until the case can be heard upon the merits, while counsel for the railroad compány contend that in view of the fact that the city council has hot repealed its ordinances granting the right, nor directed the suit to be brought, ■and in view of the delay in bringing it and the great expenditure of money that has already been made in the prosecution of the world.authorized by the ordinance, the city is estopped, and that in view of the suspension of the work the case. was' brought here in .this way in the exp'ectation on the part of counsel for ail parties of an early decision as to the right of the. railroad company to proceed with the work. Ordinarily we should not consider the questions involved further than necessary to determine the particular error assigned on the record, but since in the view of the law entertained the whole controversy may be determined on the record before Us we shall consider them so far as necessary to the determination of the case.

Public streets, squares, landings and grounds are held in trust for the. public, and being so held they are, for the uses for which they were dedicated or acquired and subject to the property rights of abutting owners, under the absolute control of the legislative power of the state. - In this, state the care, supervision and control of .public highways, streets and grounds, in cities is delegated to the council, but notwithstanding this delegation of general power over them, the state, now and since 1852, has in express terms delegated to cities the power to grant to railroad companies the right to occupy or incumber and use them, or in express terms has made the right subject to agreeing with the municipal authorities as to the manner in which they are to be occupied, so .that the general power, of care, supervision and control, that has been delegated does not carry with it the power to grant such right, and a grant by the council of a city of permission to occupy the. streets and public grounds does not confer such-right.

Section 3283, Revised Statutes, originally-passed in 1852, provides that if it be necessary in the erection of any part of a railroad, to occupy any public road,- street, alley, way or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities, owning or having1' charge thereof, and the company, may agree upon the manner, terms and conditions upon which the same may be used or occupied, and, if they be unable to agree, that the company may appropriate so much as may be necessary for the purposes of its road; and then provides “but every company which lays a track upon any such street, alley, road, or ground, shall be responsible for injuries done thereby to private or public property lying upon or near to such ground.” It will be noticed that the language of the section is “every company which lays a tract upon any stick ground.” 'At that time elevated roads were unknown and the occupancy that was contemplated was merely the laying of the tracks upon the surface of the ground, and was an occupancy that did not exclude the public from the use of any part of the street. Accordingly in The Lake Shore and Michigan Southern Railway Co. v. The City of Elyria, 69 Ohio St., 414, where this section was under consideration, it is held that the section does not authorize a city or village council to agree with a railroad company for the permanent use and exclusive occupation of a public street with abutments to support an overhead crossing. of a railroad, and that a city council is without authority to grant such a right unless authorized by statute in express terms. That case is decisive of this unless power to make the grant in question has been elsewhere or since delegated. Counsel contend that the public landing is a public highway and that power to make the grant has been since that decision expressly granted, and reference is made to an act passed May 3, 1904, 97 O. L., 546, section one of which provides: “Except as in this act elsewhere provided, all crossings, hereafter constructed whether of highways by railroads or of railroads by highways, shall be above or below the grade thereof;” and to Section 3337-1,’ Revised Statutes, as amended April 23, 1904, 97 O. L., 301; that section as originally passed in the year 1889 was entitled “An act to protect travelers on streets and highways” and, so far as it is material to notice it, was as follows: “Sec. 1. It shall be unlawful for any person, company or corporation owning or operating any railroad, crossing, or that may hereafter cross, over and above any street, less than seventy feet in width, in any city in this state, at an elevation above such street, sufficient to permit persons to pass and repass along such street beneath such railroad crossing, to place or cause to be placed, or to suffer or permit to be or remain in such street, beneath such railroad crossing or bridge, any pier or other stay or support' for such crossing’ or bridge,” and the amendment added these words: “unless the placing and maintaining of the same be authorized by the city in which such crossing is situated, by ordi-' nance duly passed;” and to Sections 3337-170 and 3337-17&, which provide that any municipal corporation may raise or lower or cause to be raised or lowered the grade of any street or way above or below any railroad tracks therein and may require any railroad company operating a railroad in such municipality to raise or lower the grade 'of its tracks, or require the railroad company to construct ways or crossings that are to be passed under its tracks.

As to the last two sections it may be observed that they do not purport to confer power to grant rights to occupy streets by railroads but power to change existing occupancy, and that none of the provisions of any of the sections relates to public grounds but only to streets-and highways. When a public common or square is opened and used for purposes of public travel it may be likened to a highway, and under such circumstances public commons have in some instances been so called by the courts, but in Langley v. The Mayor and Trustees of the Town of Gallipolis, 2 Ohio St., 108, where the contention was that the public square was a highway and that, therefore,1 the town could not rightfully enclose it, Bartley, C. J., says: “Although the manner of dedication, and the principles and rules of property applicable to public highways and public squares, may rest upon the same ground, yet the use and purpose of each is different and clearly distinguishable from the other. The easement of a public highway, the legal'incidents of which are well defined, comprehends the rights of all individuals in the community, whether .upon foot, on horseback, or' with any kind of vehicle, to pass and repass, together with thé right of the public to do all the-acts necessary, to improve it, .and keep it in repair. But the use and beneficial purposes of a public square, or common, in a village or city, where no special limitation or usé is prescribed by the terms of the dedication, are entirely different from those of a. public highway. Such a place, thus, dedicated to the public, may be improved or ornamented for pleasure-grounds and amusements for recreation and health; or it may be used for the public buildings, and place for the transaction of the public business of the people of the village or city, or it may be used for purposes both of pleasure and business. Any such appropriation may .be made under the -direction and control of the municipal authorities; but the place must, for the purposes of the dedication,remain free and common to the use of all the public. And an appropriation to the purposes of a mere public highway, or to the private and individual use and purposes of any lot-owner or particular class of lot-owners in the village or. city, of ground dedicated as that in question, would be inconsistent with the objects of the dedication, and a plain diversion from its appropriate and legitimate uses.”

But if any doubt remains, as to the absence of any delegation by the legislature of power to make such a grant, it is immaterial, in view of the fact- that the legislature itself does not possess' the power. In The President, Recorder and Trustees of the City of Cincinnati v. The Lessee of White, 6 Peters, 431, in an action in ejectment to recover possession of a part of this public landing, it is said: “The equitable owners of a tract of land on the River Ohio (the legal title to which was granted to John Cleves Symmes, from whom they had purchased the land before the emanation of the patent from the United States.) proceeded in January, 1789, to lay out on part of the said tract a town, now the city of Cincinnati. A plan was made and approved of by all the equitable proprietors, and according to which the ground lying between Front street and the river was set apart as a common, for the use and benefit of the town forever, reserving only the right of a ferry; and no lots were laid out on the land thus dedicated as a common. Afterwards, the legal title to the lands became vested in the plaintiff in this ejectment, who, under the same, sought to recover the premises so dedicated to public uses. Held, that the right of the public to use the common in Cincinnati must rest on the same principles as the right to use the streets; and that the dedication made when the town was laid out, gave a valid and indefeasible title to the city of Cincinnati.”

And it is further said that this common or landing was dedicated for the public use, and the convenience and accomodation of the inhabitants of Cincinnati.

In the opinion by Bartley, C. J., in Langley v. The Mayor and Trustees of the town of Gallipolis, supra, he says: “In the Commonwealth v. Alburger et al., I Whart., 469, a very full inquiry was instituted into the rights and uses connected with certain public squares in the city of Philadelphia; and the court, by Sergeant, Justice, say: ‘When property is dedicated or transferred to public use, the use is indefinite, and may vary according to circumstances. The public not being themselves able to manage or attend to - it, the care and employment of it must devolve upon some local authority or body corporate as its guardian, who are in the- first instance to determine what use of it, from time to time, is best calculated for the public interest, subject, as charitable uses are, to the control of the laws and the courts, in case of any abuse or misapplication of the trust. The corporation has not the right to these squares so as to be able to sell them, or employ them, in a way varient from the object for which they were designed.’ ”

In Le Clercq et al. v. Trustees of the town of Gallipolis, 7 Ohio (Part 1), 218, the trustees of the town of Gallipolis were perpetually enjoined from executing a power conferred upon them by an act of the legislature, 32 O. L., 120, to lease a part of the public square and to apply the avails to the improvement of the landing, and it was expressly held “Where land in a town has been dedicated as a public square and used as such, the legislature can not authorize the town corporation to change its character.” In the opinion Lane, J., says: “The fee of lands dedicated to public objects sometimes passes directly to the corporation for whose use it is intended, and is sometimes held by a corporate town, or by a county, in trust for the uses designated. In the first case, as where land is given to a town for corporate purposes, a vesting by the present statute, 29 Ohio St at.,- 351, or where land is acquired by a county by purchase, or where given for county objects, a vesting by section 4 of the act of 1800, 2 Ter. Laws, 43, an absolute estate is held by the corporation, which they may alien, 5 Ohio, 204-, and third persons are not permitted to interfere with the management of their agents, 6 Ohio, 101. But when such corporation take as trustees, to hold to prescribed uses, the cestui que use acquires a vested estate, the enjoyment of which may be obtained in chancery. In this case the land was either vested in the town' for the use of the inhabitants by the general acts of - dedication, or it passed to the county by the statute, to be held for this use.” ■

“In the case, then, before us, wherever the fee was vested it was held in trust as a public square, for the use of the inhabitants of the town.. It was valuable property, appurtenant to the estates of the lot-holders. The statute professes to autho^ rize.the defendants to apply the land to a different purpose, without the consent <pf those interested, from the surmised greater convenience of the citizens. Our course of. reasoning has led us to the conclusion, that the act confers upon the defendants no power to divert this property from ‘its original use. Perpetual injunction awarded.”

• This case is cited with approval and the same principle applied in the Board of Education of the Incorporated Village of Van Wert v. The Inhabitants of said Town, et al., 18 Ohio St., 221.

This property was not- given to Cincinnati to be used or dispose of as it might determine to be for its best interests, but it was dedicated to 'the inhabitants of the town, long before the state had an existence, for the purposes of a common, and while the legal title now is vested in the city it .is held by the city in trust for the inhabitants for that purpose, and when the property is no longer desired, or the purpose for which it was dedicated attainable, it will revert to the dedicator. Until then, its diversion from that' use by the city, or by the legislature, may be prevented by owners of lots whose property rights may be affected, arid by the city solicitor as the representative of the 'inhabitants. It is so easy to give away the property of others, so difficult to preserve public rights^' that it is necessary, in order to defeat the former and to. effect the latter, that the power to control; the use of property dedicated to the public must be limited to the purposes of the trust. In City of St. Paul v. The Chicago, Milwaukee & St. Paul Ry. Co., 63 Minn., 330, three times before the court, the council undertook by ordinance to grant to the defendant railway company the right to erect a freight house upon the public levee, under a statute which provided: “The common council, board of aldermen, trustees, commission-: ers, or other corporate authorities, in any city, town, village, or other municipal corporation, are-hereby authorized and empowered to grant, sell,’ convey, or lease any public grounds or place' within their respective corporate limits to any railroad corporation; subject nevertheless to all the rights of the original proprietors of such pub-, lie grounds.” In the opinion, it was said that the word “levee,” as used in the West and South, means a landing place for vessels, for the delivery of merchandise to and' from such vessels, and,' as incident to that, for the temporary storage of the merchandise. In other words, it is what in the present case has been denominated a public landing. And it is held that the áct did not confer power upon the city to make the grant. In the opinion (p. 352) it is said: “It is elementary and fundamental law that, if a grant is made for a specific, limited, and definite public use, the subject of the grant can not be used for another' and different use. Its use must be restricted to that for which it was dedicated. Even the legislature itself has no power to destroy the trust,'or to divert, or to authorize a municipality to divert, its subject to any other purpose, either public or private, inconsistent with the particular use to which it was granted. Neither the state nor the municipality within which the property is situated has any proprietory interest in it which either of them can sell or divert to any use inconsistent with the purpose of the dedication or grant. The state holds such lands merely in its sovereign capacity in trust for the public for the purposes for which it was dedicated. If the legislature should attempt to divert it, or to authorize its diversion, the property would not revert to the donor, or the public easement be extinguished. The act of the legislature would be a mere nullity.”

In City of Chicago v. Ward et al., 169 Ill., 392, 61 Am. St. Rep., 185, it is held: “After land has been dedicated to a city for a public park and accepted by the city, the legislature has no power to divert the property dedicated from the purpose for which it was donated, such diversion would be an impairment of the vested rights of abutting property owners.” In Rowzee et al. v. Pierce et al., 75 Miss., 846, 65 Am. St. Rep., 625, it was held: “If municipal authorities are about to put property dedicated for use as an ornamental park to a different use, the donors of such property, or any lot owner, and perhaps any private citizen, may maintain a suit to enjoin the proposed use.”

In these cases and in others to which reference has been made or in cases herein cited the question of the ■ right' to maintain the suit by others than the abuting property owners is considered, but, being of the opinion that the section of the municipal code hereafter referred to is broad enough to confer power upon the city solicitor to protect the interests of the inhabitants as distinguished from the interests of the abutting property owners, it is not thought necessary to give further consideration to that question.

It may not be improper to call attention to the fact that the right of the legislature to authorize property dedicated to a specific public use to be taken for a different public use in the exercise of the power of eminent domain is not here in question. The right to take it under that power is perhaps just as perfect after it has been dedicated to a public use as it was before such dedication. In The Inhabitants of Springfield v. The Connecticut River R. R. Co., 4 Cush., 63, 71, Chief Justice Shaw saysi “The power of eminent domain is a high prerogative, of sovereignty, founded upon public exigency, according to the maxim: salus republicae lex supreme est, to which all minor considerations must yield and which can only be limited by such exigency. The grant of land for one public use must yield to that of another more urgent.”

A recent case, The. Chicago, R. I. & P. Ry. Co. et al. v. People et al., 222 Ill., 427, 78 N. E. Rep., 790, is also in point.

- There being an entire.absence of power to make the grant, there is no room for an estoppel; and even if it were not such a case, Section 1536-667, Revised Statutes, does not confer a private right upon the solicitor, but imposes a duty in the interest of the public, and delay on his part in the exercise of it should not prejudice the- public. In Commonwealth v. Alburger et al., 1 Wharton, 469, 488, Sergeant, J./says: “These principles, indeed, pervade the laws of the most enlightened nations, as well as our’own code, and are essential to the protection of public rights, which would be gradually-frittered away if the want of complaint or prosecution gave the party a right. Individuals may reasoiiably be held to a limited period to enforce their. rights against adverse occupants, because' they have an interest sufficient to make them vigilant. But in public rights of property, each individual 'feels but a slight interest and rather tolerates even a manifest encroachment, than seeks a dispute to set it right.”

The ordinance provides that nothing in the ordinance shall be takfen to confer upon the railroad company any interest in any adjacent or abutting private property, and that the grant is upon the condition that the railroad company at its own expense acquire the private property necessary for its tracks, and that the structure shall be of such height and character as not to interfere with the ordinary travel over the street. Just why this •was done does not appear. Is it to be implied that the municipal grantors because they were giving away the public property thought they had power to ’give • away also' private property ? And if the latter condition is to be given effect then the grant, would be just about as effective as the permission given to the daughter to go in swimming provided she didn’t go near the water. It does appear, and •that without the need of any testimony of expert •'witnesses, or any finding of facts, that this elevated railroad was to be constructed over the entire length of the landing, not for the purpose of -facilitating the use- of the landing for the purpose for which it had been dedicated, but for the use of the railroad company. The occupancy of this part of the land in the manner proposed would be in effect an appropriation of it by the railroad company, and the grant .is inconsistent with and a diversion from the use for which the land was dedicated.

Judgment for the city.

Shauci-c, C. J., Price, Crew and Spear, JJ., concur.


author: Crew, J.

text:
    French, Admr., v. The Central Construction Company et al.

      Joint action against master and servant — For wrongful act of latter —Can not be maintained, when — Plaintiff must elect — Section 5314, Subdivision 5, Revised Statutes — Law of negligence — • Court procedure.

    ,1. An action can not be maintained jointly against master and servant for tlje wrongful and negligent act of the latter if in the particular case the master’s liability for such wrongful and negligent act arises solely from the relationship between them under the doctrine of respondeat superior. Clark v. Fry, 8 Ohio St., 358, approved and followed.
    2. Where, in an action for negligence, master and servant are improperly joined as defendants, the plaintiff in such action may be required to elect against which of said defendants he will proceed. And where in a proper case, on motion of one of the defendants, an order of election is made by the court, and plaintiff refuses to comply with or obey such order, the court may, under authority of Subdivision 5 of Section 5314, Revised Statutes, dismiss the action without prejudice to a future action.
    (No. 10287
    Decided June 25, 1907)
    Error to the Circuit Court of Lucas County.

      ■ Plaintiff in error, as the personal» representative of Raymond March, deceased, brought suit in the court of common pleas of Lucas county, Ohio, against the defendants in error, The Central Construction Company and Edward S. Hatch, a superintendent or foreman in the employ of said company, asking to recover against them jointly damages in the sum of ten thousand dollars, for wrongfully causing the death of said Raymond March, who was also an employe of The Central Construction Company, and at the time of his death was engaged in its service, under the immediate direction and control of the said Edward' S. Hatch, superintendent or foreman of said company. The death of March was occasioned by and resulted from the negligent acts and conduct of Platch, the superintendent or foreman. The issues being duly made up the cause came on for trial to a jury. At the conclusion of the plaintiff's evidence, and after the plaintiff had rested his case, the defendant, Edward S. Hatch, moved the court' to require the plaintiff to make his election whether he would prosecute his action against him, the said Edward S. Platch, or against the defendant, The Central Construction Company. The court upon consideration sustained this motion and caused to be spread upon its journal the following entry: “This day this case came on for trial, and a jury having been empaneled and sworn, and the plaintiff having introduced all his evidence and having rested his case, the defendant, Edward S. Platch, moved the court to require the plaintiff to elect as to whether he would prosecute this action against the said defendant, Hatch, or against the defendant, The Central Construction Company.
    “Upon consideration of the said motion, the same was granted by the court, and the plaintiff was ordered and directed to prosecute this action against either the defendant, Hatch, or the defendant, The Central Construction Company, and was denied the right to prosecute the same jointly against the defendants hereto, to which action of the court the plaintiff then and there duly excepted, and with. which order of the court the plaintiff then and there refused to comply, and requested that the case be submitted to the jury, which request was denied, to which plaintiff excepted.
    “Thereupon, by reason of the failure of the plaintiff to comply with the said order, the court withdrew a juror and dismissed this action. To all of which this plaintiff duly excepted.
    “This action is dismissed solely upon the refusal of the plaintiff to comply with the order of the court requiring him to elect which of said defendants he shall prosecute herein, and not upon the merits of plaintiff’s cause of action.” This judgment of dismissal was affirmed by the circuit court and error is now prosecuted to this court asking a reversal of both the judgments below.

      Mr. Charles A. Thatcher, for plaintiff in error.
    It appears from the petition that it was the joint acts of negligence on the part of the employer and the foreman which produced the death of March. This being true, the rule is well settled that persons guilty of a tort which results in injury to another, may be sued separately or jointly as the plaintiff may elect. In other words, wrongdoers have no election as to the manner in which they can be prosecuted for their wrongful acts. This distinguishes torts from actions based on contracts. We assume that no one will deny that the conduct of both defendants which resulted in the death of March, was a tort. Railroad Co. v. Laid, 164 U. S., 393; The B. B. Saunders, 19 Fed Rep., 118.
    ■ The question as to whether a master and servant can be joined as parties- defendant in an action' to recover for personal injury, has been repeatedly before the courts. It is practically universally held, both in federal and state courts, that wrongdoers can not elect as to the manner in which they will be sued, but that if they are each responsible for causing injury to another, they may be united •or. may be sued separately at the election of the plaintiff. This question has frequently arisen in the federal courts, especially where the question of removal from the state to the federal court is involved. Railroad Co. v. Dixon, 179 U. S., 131; Bridge Co. v. Hunt, 130 Fed. Rep., 302; Mechem on Agency, Sec. 571; Berghoff v. McDonald, 87 Ind., 549; Cooley on Torts, 164; I Am. & Eng. ,Ency. Law, 2d Ed., 815; Phelps v. Waite et al.; 30 N. Y., 78; Wright v. Wilcox, 19 Wend., 343; Moore v. Iron & Steel Co, 89 Fed. Rep., 73; Pirie et al. v. Tvedt et al., 115 U. S., 41; Torrence v. Shedd, 144 U. S., 527; Brown v. Coxe Bros. & Co., 75 Fed. Rep., 689; Charman v. Railroad Co. et al., 105 Fed. Rep., 449; Doremus v. Root, 94 Fed Rep., 761; Laughlin v. Railway Co. et al., 80 Fed. Rep., 702; Downey v. Railroad Co., 161 Pa. St., 588; 29 Atl, Rep., 126; The “Atlas,” 93 U. S., 302; Railway Co. et al. v. Byrne, 100 Fed. Rep., 539.
    Plaintiff. may join several defendants and if he fail as to one he may recover as to another. Pennsylvania Co. v. Snyder, 55 Ohio St., 342; Joinder of Causes of Action, 5019; Sturges et al. v. Burton et al., 8 Ohio St., 215; Albro v. Jacquith, 4 Gray, 99; Osborne v. Morgan et al., 130 Mass., 102; Bell v. Josselyn, 3 Gray, 309; Horner v. Lawrence, 8 Vroom, 46; Plinds v. Harbou, 58 Ind., 12; Hare v. McIntire, 82 Me., 240.
    The law'applicable to the nonfeasance and misfeasance of a servant, in connection with injuries thereby occasioned to others, is fully discussed in the case of Steinhouser v. Spraul, 127 Mo., 541; Railway Co. v. Grizzle, 53 S. E. Rep., 244.
    One of the earliest cases in Ohio is that of Henshaw v. Noble et al., 7 Ohio St., 226.
    We believe that the ruling of the supreme court in that a servant and master may be joined for the tort of the former is still the law in Ohio and has never been departed from in any particular. We say this with Tull knowledge that it has been attempted to claim that the supreme court laid down a different rule in the case of Clark v. Fry, 8 Ohio St., 358.
    We contend, however, that the Henshaw case has never been overruled or qualified in any sense, and that the decision in the case of Clark v. Fry is a mere dictum, and is not the law of Ohio.
    One of the main objects of the adoption of the code was to do away with a multiplicity of suits, and abolish all fiction existing under the common law.
    Mr. Thompson, in his very excellent Commentaries on the Law of Negligence, Section 7437, enters into a full discussion of this subject and while recognizing that, under the common law there were cases where the master and servant could not be joined in án action of this character, says:
    “Under the codes of several of the states, which, as is well known, abolish forms of action, the master and the servant may be joined in one action.”
    In support of this he cites many cases. See also Thompson’s Commentaries, Secs. 536 and 611.
    Under Section 6134, Revised Statutes, it is clear that the legislature did not intend to say that the persons who are guilty of causing the death of another should be sued separately, but rather that they were jointly liable.
    The doctrine as first announced by the Supreme Court of Massachusetts in the Parsons case has been abandoned by it, as appears from its opinion in the case of Hewett v. Swift, 85 Mass., 420.
    The court further specifically holds that in an action of this character the liability of both the master and servant arises from the fact that a trespass or tort has been committed by the servant, for which the master, as well as the servant, is liable. The Supreme Court of Massachusetts points out that where the servant is in the performance of duties imposed upon him by the master, the master is presumed to be present, and, in the eyes of the law, is present and participates in the conduct of the servant. Moore v. Railroad Co., 4 Gray, 465.
    . The doctrine that a joint action will not lie because the right of contribution did not exist, has also been abandoned by the Supreme Court of Massachusetts, as appears from its opinion in Gray v. Gas Light Co., 114 Mass., 149; Churchill et al. v. Holt et al., 127 Mass., 165; Holmes v. Wakefield et al., 94 Mass., 580; Cooley on Torts, 167.

      Messrs. Smith & Baker, for defendants in error.
    The cause of action against Hatch is, of course, a personal one and is joined with a claim against the construction company, not for its personal act, but for the act of its agent, it being liable only because of the negligence of the agent , and not because of any actual negligence on its part.
    The two causes of action are separate and distinct, and the master and servant in • such a case cannot be joined. The law, as we understand it, is well settled in almost all jurisdictions that for a negligent act of a servant, in the scope of his employment, he is not personally liable except to the master. This is borne out by the decision in Hoffman v. Gordon & Bro., 15 Ohio St., 211.

      Henshaw v. Noble et al., 7 Ohio St., 231, clearly shows that Hatch, under the allegations of this petition, is not liable to plaintiff at all, even in a separate suit; and this being so, of course he cannot properly be joined with his principal; that it is the law that they may not be joined is fully determined by the Supreme Court of Ohio in Clark v. Fry, 8 Ohio St., 358.
   Crew, J.

The motion to require plaintiff to elect whether he would prosecute his action against the defendant, Edward S. Hatch, or against the defendant, The Central Construction Company, was properly sustained by the court of common pleas. To maintain an action jointly against two or more defendants, whether such action rests upon contract or in tort, the plaintiff must allege and show a joint liability. If the action be in form ex delicto, to recover damages for the wrongful or negligent act of a servant or employe, to warrant the joinder of the master as a defendant in such action, the negligent act charged must be, either in fact or in legal intendment, the joint or concurrent act of the master and servant. In the present case no such act of negligence was shown or proved. The actionable negligence in this case, if any was shown, consisted of an act done by Hatch, a foreman of the Central Construction Company, while engaged in the prosecution and discharge of the company’s business and in the actual conduct and course of such business. At the time March received the injuries which resulted in his death, The Central Construction Company was engaged in constructing a bridge over the Maumee river at Grand Rapids, Ohio. Hatch, a foreman of said company, was superintending the work. The deceased, Raymond March, was an employe of said construction company, and was one of the workmen engaged on this work under the direction and control of Hatch, who rwas his foreman and superior. During the progress of the work, by reason of the alleged negligent act or acts, of Hatch, a rope which March was using to support himself while at work on said bridge, slipped or gave way, and March was thrown upon the rocks below, a distance of about fifty-five feet, receiving injuries from the fall which resulted in his death four days later. The negligent or wrongful act complained of was the act of Hatch, and the construction company not having directed Hatch to perform this particular service, or to do the particular thing which it is claimed resulted in the injury to March, can not be said to have acted in concert with him in producing. such injury. Upon these facts, and under such circumstances, the construction company, if liable at all, is liable, not as a joint tort feasor, but under the doctrine of respondeat superior, and because the law makes it responsible for the acts of its servant done in the discharge or performance of its business. 'While the general rule perhaps is,' that master and servant are each severally liable for the wrongful and tortious act of the later committed in the course of the master’s business, it does not therefore follow that they are, or may be held, jointly responsible for the consequences of such act, or that a joint action can be maintained against them therefor by a person thereby injured. That the master can not be so joined as a defendant in an action against his servant, where the negligent act of the servant was neither committed in the presence of the master nor by his express direction, is held in the following cases: Parsons v. Winchell et al., 5 Cushing, 592; Seelen et al. v. Ryan & Co. et al., 2 C. S. R., 158; Warax v. Cincinnati, N. O. & T. P. Ry. Co. et al., 72 Fed. Rep., 637; Mulchey v. The Methodist Religious Society et al., 125 Mass., 487; Campbell v. Portland Sugar Co., 62 Maine, 552; Page v. Parker, 40 N. H., 47, and Bailey et al., Exrs., v. Bussing, 37 Conn., 349. But we need not iook for authority upon this proposition beyond the decisions of our own supreme court. It is, and since the decision by this court of Clark v. Fry, 8 Ohio St., 358, has been, the settled rule and law in this state that a joint action can not.be maintained against master and servant, in any case where the master’s liability for the wrongful and negligent act of the servant arises solely and only from the legal relationship existing between them under the rule of respondeat superior, and not by reason, or because of, the master’s personal participation in such wrongful or negligent act. It is, however, suggested in argument by counsel for plaintiff in error that the misjoinder of parties defendant, if the fact of such misjoinder was to be relied upon in this case, should have been taken advantage of by demurrer in the court of common pleas, and it is claimed that the question not having been there raised by answer or demurrer, that defendants must be held to have waived their right to object on that ground, as well as any right they may have had to require plaintiff to elect whether he would prosecute his action against the defendant, Hatch, or against the defendant, The Contral Construction Company. The- answer to this is, that the fact of misjoinder does not affirmatively appear on the face, or from the allegations, of plaintiff’s petition, but such fact was, for the first time, disclosed by the evidence which was introduced on behalf of the plaintiff. The plaintiff having wholly failed by this evidence to establish or show a joint liability upon the part of the defendants for the wrongful and negligent act complained of, and it clearly appearing from the evidence offered that plaintiff’s cause of action, if any he had, against the defendants or either of them, was a several and not a joint cause, of ac-' tion, the motion interposed by the defendant, Hatch, at the conclusion of the testimony, and after plaintiff had rested his case, asking that plaintiff be then required to elect against which of the defendants he would further proceed, was made in time, was well taken, and the same was therefore properly sustained, and an order was properly made by the court requiring the plaintiff to make such election. The plaintiff having refused to comply with or obey this order, the court under the authority of Subdivision 5 of Section 5314, Revised Statutes, properly dismissed the action without prejudice. Said section provides as follows: “An action may be dismissed without prejudice to a future action * * * 5. By the court for disobedience by the plaintiff of an order concerning the proceedings in the action.”

Finding no error in this record to the prejudice of the plaintiff in error, the judgment of the circuit court will be

' Affirmed.

Shauck, C. J., Price, .Summers, Spear and Davis, JJ., concur.