author: Dickman, J.

text:
    Smith et al. v. Commissioners.

      Action to recover damages by reason of a change in the grade of a public road.

    Where the grade of a public road has been established, and the owner of abutting land has improved the same by erecting and maintaining buildings thereon with reference to such established grade, and with reasonable reference to the prospective improvement of the road and its future enjoyment by the public; and where the board of county commissioners has improved the road by changing such established grade, an action for damages will lie in favor of the owner against the board of county commissioners, where, by such change of grade, the owner’s free and safe passage from the road to and from his land and buildings thereon has been obstructed or impaired.
    (Decided December 5, 1893.)
    Error to the Circuit Court of Wayne county.
    The original action was commenced in the Court of Common Pleas of Wayne county, Ohio, by Mary F. Smith, William H. Smith, Charles P. Smith, James A. Smith, Mary A. Smith and Sarah M. Zimmerman, the plaintiffs in error, against The Board of County Commissioners of Wayne county, Ohio, the defendant in error.
    The amended petition, filed by the plaintiffs, reads as follows:
    “ The plaintiffs say that they now are and at the time of the committing of the grievances by defendant, as hereinafter set forth, were the owners in fee simple of the following described real estate situated in Chippewa township, Wayne county, Ohio, to wit: A part of the southeast quar-
    ter of section No. 3, township No. 18, of range No. 11, containing in all about 45 acres of land.
    “That for a period of more than fifty years a certain public road or highway leading from the village of Doylestown, in Wayne county, Ohio, fi> Akron, in Summit county, has run and passed through, said tract of land, and which said road or highway has been kept in repair and condition for public use and travel by the public authorities vested with the control and management of public roads in said Wayne county.
    “ That the grade of said road has been established, kept and maintained in reference to and respect to adjacent land, and that the grade and surface of said road or highway, and plaintiff’s lands have through all the years, for at least fifty, and until the time hereinafter set forth, been kept and maintained at practically the same level.
    “That said tract of land is improved farming land, with dwelling house, barn and suitable farm buildings erected •thereon adjacent to and along the said road or highway, and was at the time hereinafter mentioned, and for said period of fifty years, so as aforesaid, improved with suitable buildings, and the same had been improved, and said buildings erected and maintained with reference to the established grade of said road or highway, and with reasonable reference to its prospective improvement and future enjoyment by the public authorities vested with the control and management of the said road or highway; and that by reason of the established grade and relative level of said road or highway as hereinbefore alleged, said lands and buildings were of ready and easy access to and from the same.
    “That in the summer of 1884, the defendant herein, being the public body vested with the control and management of said road or highway, for and in behalf of the public, changed'and altered the grade and surface level of said road or highway that had been established and maintained through said lands as hereinbefore set out, by excavating a part thereof to a depth of sixteen feet, and along in front of the buildings already mentioned, excavating the same to a depth of from five to nine feet.
    “And along other portions of said lands defendant has changed and altered the grade and level, so as aforesaid established and maintained, and caused the same to be filled to a height of fifteen feet at different points.

      “That by reason of the said acts of defendant the means of access to plaintiff’s lands, buildings and improvements, from said road or highway, and their access to the same from their said land have been greatly impaired and rendered inconvenient and difficult, and the value of their said property has been by reason thereof greatly diminished.
    “Plaintiffs say further that they held and had the right to hold 'and enjoy their said lands so as aforesaid improved without change or alteration in the relative level of said road or highway, subject only to the right of eminent domain to be exercised bjr the defendant representing the public in respect to roads, and the same to be exercised only in manner provided by law, suitable and adequate compensation being first made in money for the deprivation of private, rights and property.
    “The plaintiffs say that the defendant herein proceeded to-make the change and alteration as hereinbefore set out,, without notice to them and without having paid them any compensation in money for the same, and without having caused a jury to inquire into and assess to them such compensation as they, the plaintiffs, were entitled to in the premises, and without having in manner provided any means or tribunal to ascertain and assess the compensation and damages for the acts of defendant as herein before set out.
    “Therefore, and by reason of the premises, these plaintiffs, say that they are entitled to have a jury assess their damages, in the premises, and say they have been damaged in the sum of $1,500, for which amount they ask a judgment.”
    To the amended petition there was a general demurrer, which was sustained. To the ruling of the court sustaining the demurrer the plaintiffs excepted, and the plaintiffs not asking to plead further, judgment was rendered for the defendants.
    On petition in error the circuit court affirmed the judgment of the court of common pleas, and proceedings in error are here instituted to reverse the judgment of the circuit court.

      McClure & Smyser, for plaintiffs in error.
    If we can establish the proposition that private property was taken by the defendant, then, of course, we have established the right of plaintiffs in error to maintain some sort of action. A landowner has property and a private right in a highway adjacent to his lands. Jackson v. Jackson, 16 Ohio St., 168; Crawford v. The Village of Delaware, 7 Ohio St., 459; Street Railway v. Cumminsville, 14 Ohio St., 523; Parrot v. C., H. & D. Railway, 10 Ohio St., 624; Hatch v. The Railroad Company, 18 Ohio St., 123, 124; Simons et al. v. Cincinnati, 14 Ohio, 175, et seq. Ferris et al. v. Brambel et al., 5 Ohio St., 109; 3 Sutherland on Damages, 430, 446; 4 Wait’s A. and D., 623; 2 Field’s Briefs, Sec. 231 ; 4 Field’s Briefs, Sec. 291; 6 Wait’s A. and D., 301 et seq. Anderson v. Commissioners of Hamilton County, 12 Ohio St., 643; Lamb et al. v. Lane, 4 Ohio St., 161; Watson v. Trustees, 21 Ohio St., 667; McArthur v. Kelly, 5 Ohio St., 143; Foot v. Cincinnati, 11 Ohio, 408; Dodson v. Cincinnati, 34 Ohio St., 278.
    The act complained of the defendant, is the exercise of the power of eminent domain, and compensation or damages arise from such act in the same manner as if the power had been legally exercised. 34 Ohio St., 276; 18 Ohio St., 109; Cincinnati v. Penny, 21 Ohio St., 499.
    Can this action be maintained against the defendant in error ? In respect to roads, although they are intended for the public benefit, the power and the whole power in relation to them is conferred on the board of county commissioners. Badgely v. Commissioners of Hamilton County, 1 Disney, 316: Cincinnati v. Cooms et al., 16 Ohio, 181, 188 ; Lee v. Pembroke Iron Company, 2 Am. Rept., 59; Johnson v. Parkersburg, 37 Am. Rept., 779.
    We submit, that no respectable authority will be, or can be produced upon the proposition that a county, through its commissioners, may take, or subject, private property to the burdens of a public use, and receive the benefits thereof, without payment of the constitutional compensation therefor.

      John McSweeney, for defendants in error.
    The plaintiffs have not a cause "for action. This highway by lapse of time became vested. Dillon on Municipal Corporations, Sec. 629, and cases cited.
    The statute of limitations runs against individuals and in favor of the public and public corporations, in Ohio. 8 Ohio, 298; 5 Ohio St, 594.
    Why call this an action for appropriation, and why ask for a “respectable authority which holds that the county commissioners may appropriate private property for public use without pay ?” The defendants do not base their defense tO' this action, on the maintenance of such a proposition; but claim that by virtue of the adverse use of said highway for more than 21 years, the plaintiffs are estopped from bringing an action to appropriate said land for a highway, and the law will presume by reason of the lapse of time, an original appropriation or dedication of the land for said highway by the plaintiff or by those through whom he claims title.
    As to involuntary or quasi corporations, no private action (unless by statute) lies against quasi corporations for breach of duty; having no fund, each individual would be liable to satisfy the judgment. 1 Maine, 361; 36 N. H, 284; 47 Maine, 281; 7 Mass, 187.
    Boards of commissioners of counties are involuntary qausi corporations, being political and civil divisions of the state, created by general laws to aid in the administration of the state ^government. Cooley Con. Dim, 241; Symonds v. Clay Co., 71 Ill., 377; Commissioners v. Mighels, 7 Ohio St, 121; Dill. M. Cor. p. 962; Russell v. The Men of Devon, 2 Term R. (D. & E.), 667; 30 Ohio St, 37; 25 Ohio St, 305; 23 Ohio St, 600. Commissioners are not personally liablé, where they act in the honest discharge of official duty. 40 Ohio St, 617 ; 3 Peters, U. S, 409; 8 Barb, 645 ; 45 Ohio St, 401; 33 Ohio St, 451; Johns v. Cincinnati, 45 Ohio St, 279; Dun v. The Agricultural Society, 46 Ohio St, 93; 38 Ohio St, 522; 39 Ohio St, 346; 17 Ohio, 402.
   Dickman, J.

The first question that claims our consideration is,, whether the original petition states facts sufficient to constitute a cause of action for damages, in consequence of excavating and filling the highway to which the lands and buildings of the plaintiffs were adjacent. The general rule is well established in this state, that a municipality may become liable for consequential damages caused in grading a street. The owner of a lot abutting on a street has an easement in the street appendant to his lots whereby he is entitled to an unobstructed access to and from the street, and this appendant easement is as much property as the lot itself. This right of property vested in the owner of abutting land is subject, however, to the right of the public to grade and improve the street. ’But grades once established are presumptively permanent and cannot, it is obvious, be changed without causing injury and confusion. Elliott on Roads and Streets, 346. And, as is said in Crawford v. Delaware, 7 Ohio St., 471, “if, after establishing the grade, they block up or cut down the street before one man’s house for .the benefit of others, doing a substantial injury, the rights of property have been invaded, and the plainest principles of justice require compensation.”

The private rights, easement and facilities of the owner of lands in the adjacent highways, are not, upon principle, materially different from those of the owner of lots in towns and cities in the adjacent streets. But, in both instances, it is recognized as a fundamental principle, that if improvements are made on lots or lands in accordance with an established grade, and the grade is afterwards altered, and a substantial injury thereby done to the owner of such lots or lands, he will be entitled to compensation.

A grade line for a public road or highway may become practically established though not evidenced by legislative enactment definitely fixing the line. In Akron v. Chamberlain Co., 34 Ohio St., 336, it is said: “We are of opinion that the establishment of a grade whereby lot owners are justified in assuming that no change will be made in the grade of a street, and may, therefore, improve their lots with reference to its present condition, so that the municipality will be liable for injuries to their improvements, resulting from a subsequent change of the grade, does not necessarily require the passage of an ordinance or other legislative action; but it may be shown, by the nature of the improvement on the surface of the street, under the direction or sanction of the proper authorities, whether in accordance with an ordained grade line or not.”

And when a public highway has been so laid out as to indicate that it is designed for permanent use by the public without substantial alteration, and the owner of adjacent lands and buildings improves the same with due reference to the highway as thus established, and to its reasonable improvement in the future for the public convenience, if such owner's passage to and from the highway be thereafter impaired by a substantial alteration in the highway, it will be an injury to his property for which he will be entitled to indemnity. This is but a restatement of the rule announced in the opinion in Jackson v. Jackson, 16 Ohio St., 168; that súch owner has a private right of access to and from the highway; and, when he has made improvements on his land, with direct reference to the adjoining highway as then established, and with reasonable reference to its prospective improvement and enjoyment by the public, he has a private right of way, or passage, to and from the highway as it then exists; and any substantial change in the highway, to the injury of such passage or way, is an invasion of his private property; and this private right extends so far as the reasonable and convenient enjoyment of such improvements requires the use of the adjacent highway.

The record in the case at bar discloses as facts admitted on demurrer to the original petition, that the grade of the public road leading from Doylestown to Akron had been established, •kept and maintained in reference to adjacent lands; and the grade and surface of the road, and the plaintiffs’ lands, for at least fifty years preceding, and until the change of the grade and surface level of the road in 1884, had been kept and maintained at practically the same level. The plaintiffs’ lands adjacent to and along the road had, during the time above mentioned, been improved with suitable buildings thereon; and had been so improved, and the buildings erected and maintained with reference to the established grade of the road, and with reasonable reference to its prospective improvement and future enjoyment by the public. By reason ■of the established grade and relative level of the road, there was ready and easy access between the road and the lands and buildings of the plaintiffs. But, by changing the grade and surface level, in the manner and to the extent set forth in the petition, the means of access to lands, buildings and improvements from the road, and to the road from such lands, have been impaired and made inconvenient and difficult.

Upon an application to the facts stated in the petition, of the legal principles recognized and enforced in the decisions of this court, we are of the opinion, that the plantiffs in error had a right of action against the .defendants in error for damages in consequence of the alleged change and alteration in the grade of the road or highway.

But it is urged in behalf of the defendants, that the petition in the case sets forth a tort, and that, therefore, the action is not maintainable against the board of county'commissioners in their quasi corporate capacity. County commissioners have power to improve any state, county, or township road, ■or any part thereof, by grading, paving, graveling, planking •or macadamizing the same. Revised Statutes, section 4829. Having exercised the power granted by statute of changing the grade of the road or highwajq for the purpose of improving the same, there is no claim that the work was done in a careless manner, and no question consequently arises of negligence in the discharge by the defendants of their official functions. In their official capacity, as the representatives of the county, having improved the road for the public benefit by changing its grade, the sole question involved, namely, that of compensation by the county, to the owner of adjacent lands, gives rise to no inquiry as to any personal wrong, neglect, or default on the part of the commissioners.

The judgments of the circuit and common pleas courts should be reversed, and the cause remanded for further proceedings.

fudgment accordingly.


source: Caselaw Access Project

author: Bradbury, C. J.

license: Public Domain

text:
    State v. Bailey.

      Criminal law-—Indictment— When separate offenses may be included in— When error to compel state to elect—Judicial discretion—Embezzlement— Venue.

    1. Where two closely allied offenses arise from the same transaction, and may be established by substantially the same evidence, both may be included in separate counts of the same indictment.
    2. In such case an -order made by the court of common pleas, compelling the prosecuting attorney to elect upon which count he will proceed to trial, deprives the state of a substantial legal right, and is erroneous, unless it appears that the defendant may be embarrassed in making some legitimate defense, if the state is permitted to proceed on both counts at the same time.
    3. The discretion vested in the court of common pleas, to require the prosecuting attorney to elect upon which of two or more counts in an indictment he will proceed, is judicial; and an order requiring an election to be made, where the election may deprive the state of a substantial legal right, is reviewable on error.
    4. Where a contract of employment was made in Lucas county, by which the accused was authorized to canvass for the sale of and sell his employer’s goods in Sandusky county, and to account therefor in Lucas county, weekly, either by letter or in person; and at his request goods were sent to him by express from his employer’s place of business in Lucas county to him in San-dusky county, which he received and sold in the latter county, part of the proceeds of which he converted to his own use, in Sandusky county, and part in the state of New York. After the sale of the goods he wrote a false account of the transaction to his employers, addressed to them in Lucas county, which he mailed to them on the railroad train while absconding, and which they received in Lucas county.

      Held'. That the accused might be indicted and tried in Lucas county for the embezzlement thus committed.
    (Decided December 5, 1893.)
    Exceptions to the Court of Common Pleas of Rucas county.

      f A. Baker, prosecuting attorney, and Chas. G. Sumner, assistant prosecuting attorney, for the state.
    Can the defendant be convicted in Rucas county, for the • conversion ? The officials in the county where the intent was formed would have no special interest in the punishment of those so offending and the ends of justice would be defeated. Gravatt v. The State, 25 Ohio St., 162; Campbell v. The State, 35 Ohio St., 70.
    An indictment for embezzlement may be laid either in the county in which the money or the property was received, or in the county in which it has been taken ; or where the prisoner disowned having received the same. 6 Am. and Eng. Ency. of Raw, 498; 1 Bishop Crim. Pro., Sec. 61; 2 Bishop Crim. Pro., Sec. 326; Rex v. Murdock, 2 Den. C. C., 298; Brown v. The State, 23 Tex. App., 214; Rex v. Hobson, 1 Russ and Ry. British C. C., 56; Rex v. Taylor, 2 Leach C. C., 975; Qzieen v. Rogers, R. R. 3, Q. B. Div. 28.
    The two counts in the indictment were'upon the same transaction, and it was a question of fact for the jury to determine from the evidence whether the defendant had embezzled the goods or the money. Bailey v. State, 4 Ohio St., 440; Jackson v. State, 39 Ohio St., 37; Hotelling v. State, 3 C. C. R., 630.

      M. B. Lemmon, for defendant in er'ror.
    First:—The court was right in requiring the prosecutor to elect on which count he would try the defendant. The goods which had been delivered to this defendant were in his possession rightfully and he had a right to sell them. This was what he was hired to do.
    If he did sell them 'and receive the money for them, then he received the money so got for them, lawfully. To embezzle the goods would be one transaction, while to embezzle the money would be another and entirely different transaction. The .counts in the indictment surely involved different transactions and the prosecutor must elect. Bailey v. State, 4 Ohio St., 440; Stockwell v. State, 27 Ohio St. 563.

      Second:—The request that a demand was necessary and a refusal to account before arrest should have been given. Roscoe Crim. Ev., 415, 416; Arch. Cr. Pr. & PL, 447, 448, note; Dunlap’s Paley’s Agency, 344, 380; McMorris v. Simpson, 21, Wend., 610, 614; Cairnes v. Blecker, 12 John., 300; Morris Ad. v. Bills, Wright, 343.
    Third:—The bill of exceptions does not show, and in fact there is no pretense, that a single penny of the money was received in Rucas county. In fact it was received in San-dusky county. It is so conceded. He also expended a goodly portion of the money in Sandusky county and the balance in Buffalo. It is evident that both the intention to convert, and the conversion, if any, were in Sandusky county.
    The mere reception of the goods in Rucas county does not give jurisdiction. Whart. Crim. Raw, Sec. 1040; Sec. 7263, Revised Statutes; Robbins v. The State, 8 Ohio St., 131; Campbell v. The State, 35 Ohio St., 70.
    Fourth:—If the delivery of the goods to a common carrier in Rucas count}', was a delivery of the goods to Bailey, then a delivery of the letter to a common carrier, in San-dusky county, was a delivery to Hood Brothers Co. This is but to state a well known, fundamental principle of law. The crime, conceding that no demand was necessary, was committed before this letter was written. If a delivery to a common carrier in one case, it certainly is in both. I certainly think the law to be, if not it should be so, that the matter of delivery has nothing whatever to do with the actual commission of the crime of embezzlement.
   Bradbury, C. J.

The defendant in error was indicted and tried in Rucas county for embezzlement. During the trial, which resulted in his acquittal, the prosecuting attorney excepted to certain rulings of the court of common pleas, which, being embodied in a bill of exceptions, he has brought to this court for review, by virtue of the provisions of section 7305, Revised Statutes.

The record discloses that the defendant was employed as an agent by Hood Brothers Company, a firm located at Toledo in Rucas county, in this state, and engaged in selling “ either for cash or on the installment plan,” throughout Northwestern Ohio, “ rugs, lamps, albums, bibles, silverware,” and other house furnishing goods; that the goods to be sold were delivered to agents from the firm’s place of business in Toledo, to be used in canvassing for their sale; that at Toledo the defendant was employed by the firm on the 4th day of November, 1892, and certain goods delivered to him to be sold in Toledo; that he was to report to the firm every evening at 6 o’clock; that after canvassing Toledo for four days, he was sent to Fremont in Sandusky county, Ohio, there to canvass for the sale of the firm’s goods, taking with him the unsold goods that had been delivered to him for sale in Toledo; that for sales made at the latter place he was to report and account for to the firm, either in person or by letter, at Toledo, at the end of each week; that on November 11, 1892, the firm shipped from Toledo to him certain goods which he received at Fremont; that on the 12th of November (Saturday) defendant reported to the firm by letter, but sent no money, and that on the 16th the firm, at his request, again shipped goods to him at Fremont, which he received there; that the defendant failed to report to the firm on Saturday the 19th, but bn Monday the 21st caused a letter to be written and addressed to them stating that his sales for the past week were small and that he was discouraged,, but would await their further orders. The next day he absconded, went to Buffalo, N. Y., mailing while on the train the letter written the day before to the firm. The evidence tended to show that all of the goods he had received under his employment, except some small sales made while he remained in Toledo, had been sold by the defendant in Fremont, Sandusky county, and a portion of the money received for them spent there before the last mentioned letter was mailed to the firm, and a portion of it spent in Buffalo afterwards.

He was arrested in Buffalo, brought to Toledo, Rucas, county, Ohio, there indicted and placed upon trial for embezzlement. The indictment contained two counts, one charging the embezzlement of the goods, the other the embezzlement of the money produced by their sale, each count charging the embezzlement to have occurred in Rucas county. After the jury was impanelled | and sworn for the trial of the defendant, his counsel moved the court to compel the prosecuting attorney to elect upon which count of the indictment he would proceed to trial. The court, over the objection of the prosecuting attorney, sustained the motion, to which ruling the prosecuting attorney excepted, and thereupon elected to proceed with the trial on the count which alleged the embezzlement of the money.

Ordinarily, no doubt, the discretion of the trial court in compelling, or refusing to compel, the state to elect upon which of two or more counts in an indictment it will proceed to try the defendant, is not rev.iewable on error. Bailey v. State, 4 Ohio St., 440; Bish. Cr. Proc., 454; Commonwealth v. Sullivan, 104 Mass., 552. The cases in which this rule has been announced are quite numerous; in most, if not all of them, however, no substantial prejudice to the merits of either the prosecution or the defense was found to have 'resulted from the action of the court, and therefore they cannot be regarded as controlling in cases where substantial prejudice has followed from the ruling. The discretion of the trial court in this respect, as in most other instances of its exercise, should be deemed judicial and not arbitrary, and if the former, it is reviewable on error whenever it invades a substantial right. . Yanez v. The State, 20 Tex., 656; Commonwealth v. Manson, 2 Ashmead, 30; The People v. Costello, 1 Denio, 83; State v. Nelson, 14 Richardson (S. C.), 169; Ker v. People, 110 Ill., 627; Stockwell v. State, 27 Ohio St., 563-66-7. The authorities are quite uniform in maintaining the right of the prosecutor, where a single offense has been committed, to include a number of counts in one indictment, variously framed to meet possible contingencies that may arise in the introduction of the evidence. Upon this subject the following pertinent language is used b}r Wharton : “ Every cautious pleader will insert as many counts as will be necessary to provide for ■every possible contingency in the evidence; and this the law permits.” Beasley v. The People, 89 Ill., 571; Commonwealth v. Andrews et al., 132 Mass., 263; State v. Smith, 24 West Va., 814; State v. Flye, 26 Me., 312.

The law permits this multiplication of the counts in an indictment, where each states, though with variations of detail, the same offense, to prevent that failure of justice which might follow, if the prosecution should be confined to a single count, and the proof should vary from the allegations of that count in some essential particular.

Upon the same principle, it would seem that where two similar, and closely allied, offenses arise from the same transaction, and each must be established, if at all, by substantially the same evidence, each should be permitted to be set forth, in separate counts, in the same indictment. People v. Satterlee, 12 Hun., 167; Hogan v. The State, 61 Ga., 43; State v. Fisher, 37 Kans., 404; Commonwealth v. Ismahl, 134 Mass., 201; State v. Scott, 15 S. C., 434; Ker v. The People, 110 Ill., 627 ; People v. Sweeney, 55 Mich., 586; Armstrong v. The People, 70 N. Y., 38. This course is pursued in this state in prosecutions for feloneous cutting, stabbing, or shooting. The approved practice is to charge in one count that the act was done with intent to kill, and in a second count that it was done with intent to wound, and the prisoner is convicted, if at all, on that count which corresponds to the intent established by the evidence.

In the case under consideration the two offenses, charged in the indictment, grew out of one continuous and connected transaction, and upon whichever of the two counts the prosecution should proceed, evidence of the entire transaction would be admissible. The defendant, as the agent of Hood Brothers Company, had received from them from time to time goods to be sold, and if sold he was to account to them for their proceeds, or if not sold, then he was to account for them in specie; he absconded without any accounting whatever, and whether the transaction was, in law, an embezzlement of the goods or of their proceeds would, or might at least, depend upon evidence doubtful, or conflicting, or, as may well be conceived, upon the facts developed by the examination of the state’s witnesses of which the prosecution had no previous knowledge, or even upon circumstances brought out by the witnesses for the defense, or by the defendant himself, should he choose to testify. Therefore, if the prosecuting attorney should be compelled to elect, prematurely, justice may be defeated by his inability to forecast the evidence.

We think the state, under such circumstances, may,, of right, insert in the indictment more than one count, in order to meet the possible varying phases of the evidence, and a right to insert separate counts implies a right to support them by testimony, for without the latter right the former would be of little value.

We are not to be understood as holding that the trial court should not, in any prosecution for embezzlement, compel an election between two or more counts in an indictment. The principles which govern the subject of election are equally applicable to all prosecutions.

In some instances the action of the court may be invoked after the evidence of the state has been presented and before the introduction of that for the defense begins. Stockwell v. The State, 27 Ohio St., 563-566-7.

But, at whatever period in the trial an election may be compelled, if it invades the rights of the prosecution, by narrowing the scope of the inquiry or limiting the effect of the evidence to narrower boundaries than the general rules of law warrant, the order constitutes a reviewable error.

In the present case, as we have already seen, the two counts of the indictment set forth two offenses closely allied, that grew out of the same transaction; whether the state proceeded upon one or the other of them, or upon both, the evidence of the entire transaction was admissible. By the order the state was forced to elect between the two counts, and it chose to proceed upon the one which alleged the embezzlement to have been of the money arising from the sale of the goods, and abandoned the one that charged the embezzlement of the goods. This, it is true, did not prevent the state iron introducing evidence of the entire and continnous transaction, but did limit the effect of the evidence; so that, if the evidence had ever so clearly established the embezzlement of the goods, nevertheless the defendant must have been acquitted.

To have permitted the state to proceed upon both counts, would not have prejudiced the merits of any legitimate defense that the defendant could interpose, but it did afford him an opportunity to escape conviction, though ever so guilty, if the prosecuting attorney should, in the imperfect state of his information, select that count of the indictment to which it was afterwards found that the evidence was not legally appropriate.

This we hold to be error.

2. The court of common pleas, at the request of counsel for the prisoner, charged the jury as follows: (1) “If you find that the defendant received and had this money in his possession in Sandusky county, and while it was so in his possession in Sandusky count}1-, he appropriated it to his own use, then I say to you that for such appropriation you cannot convict him in Rucas county.” (2) “If you find that the money, if any, received by the defendant was so received in Sandusky county, and that before leaving San-dusky county, the defendant formed the intention to convert it to his own use, and did so convert it, then I say to you that the act was committed in Sandusky county, and your verdict, as to so much of the money received and converted by him, must be for defendant.”

These two propositions, when considered together, announce the doctrine, that in prosecutions for the embezzlement of money, the offense is completed whenever and wherever the unlawful appropriation occurs, and that the venue must be laid in the county where the conversion, in fact, transpired, and no other. The act of appropriation is thus made the test of jurisdiction, to the exclusion of all other circumstances, however essential they may be to constitute the offense. No doubt the venue may be laid in the county where the money was actually converted to the defendant’s use. This is generally, if not universally, maintained by the text-writers, as well as by the courts, both in England and in the United States. 6 Am. & Eng. Ency. of Law, 498; 1 Bish. Cr. Proc., 61.

And if the entire transaction constituting the embezzlement occurred in one county, only, the venue, as matter of course, should be laid therein. But if the transaction extended to different counties, the authorities generally hold that the jurisdiction of the county in which the act of conversion occurred is not exclusive. Cohen v. State, 20 Tex. App., 224; The State v. Small, 26 Kansas, 209!; 1 Bish. Cr. Proc., 61; Campbell v. State, 35 Ohio St., 70; Rex v. Taylor, 2 Leach,4th ed., 974; Reg. v. Murdock, 8 Eng. Law & Eq., 577; Queen v. Rodgers, 3 L. R. Q. B. Div., 28. The concurrent jurisdiction, in prosecutions for embezzlement, under certain circumstances, of other counties than the one in which the act of conversion occurred, is established by the foregoing authorities, and we are inclined to follow them. Therefore the exceptions are sustained to these propositions, which denied such jurisdiction.

At the conclusion of the evidence the prosecuting attorney requested the court to give to the jury the following instructions :

“If you find that the defendant was employed by Hood Bros. Co., in Lucas county, and that by the terms of his employment he was required to account and remit the proceeds of his sales to Hood Bros. Co., in Lucas county, and if you find that the defendant wrote a letter in Sandusky county, addressed to Hood Bros. Co., in Lucas county, which letter was.duly received by Hood Bros. Co., in Lucas county, that in said letter the defendant denied having sold any goods, or received any moneys for Hood Bros. Co.; and if you find that at the time he wrote said letter he had sold goods of Hood Bros. Co., and received money for Hood Bros. Co., in Sandusky countjq and had converted the same to his own use with intent to embezzle the same, then the venue is properly laid in this county, and he can be indicted and tried in this county for embezzlement.” The court refused the request, and the prosecuting attorney excepted thereto.

We have already held, in this case that the jurisdiction of the county in which the conversion actually occurred is not exclusive. When, however, we come. to consider the circumstances that have been held sufficient to authorize the venue to be laid- in a county where the conversion did not occur, we can discover no settled principle running through the cases.

It would seem, upon principle, that unless some essential part of the transaction constituting the offense occurred within a county, venue could not be laid therein. In the case before us the contract of employment was made in Eucas county, and it was the duty of the defendant to account there, either by letter or in person. Is there not strong ground to contend that the contract, by which the fiduciary relation and the duty to account are created, is as essential a constituent of the offense as-the conversion of the money or property of the employer? This is held in ex parte Hedley, 31 Cal., 108. It is true that it is the act of conversion which gives to the transaction its odious and repugnant character, but proof of the contract establishing the relation is no less important than is proof of the conversion itself. It has been held that if the servant be found in the county where his master resides, and where it was the servant’s duty to account, and a demand is made on him to account, or if he is simply inquired of there concerning the money and says he is sorry, but has spent it, it will support the venue. Reg. v. Murdock, 2 Denn. C. C., 298. The crime may be complete without proof of a demand upon the servant or agent to account. Hollingsworth, v. State, 111 Ind., 289; State v. Mims, 26 Minn., 191. The money or property may have-been fraudulently converted, spent or wasted, and the offender liable to prosecution before a demand upon him had been made. There can be no doubt but that in the case under consideration the defendant became an embezzler as soon as he had fraudulently squandered a part of his employer’s money upon his female companion and absconded with her. No proof of a demand was necessary to procure his extradition; if so, he had placed himself beyond the reach of the law by his flight to another state. If a demand was necessary to complete the offense of embezzlement, the offender could always prevent its completion by a. timely flight. Beyond doubt, if the agent, with his employer’s money in his pocket, should, upon demand, deny his receipt of it at all, or, admitting its receipt, refuse to account for it to his employer, or in any other way manifest his purpose to convert it to his own use, such conduct would constitute a conversion and complete the crime.

Where, however, the crime has been accomplished by the absolute and fraudulent conversion of the money or property of the employer to the use of the agent in one county, which, as we have seen, completes the offense, and gives that county jurisdiction, the principle is not apparent by which a mere demand made in another county, followed by a failure to account,- should clothe the latter county with jurisdiction. The crime rvas complete before the demand was made. This demand and the failure to account were simply evidence of it, and no reason is perceived why the admission or confession of a defendant, in cases of embezzlement, more than in other crimes, should authorize venue to be laid where the admission or confession was made. True, if there was no evidence, or not sufficient evidence, of a conversion elsewhere, the jury might infer that it occurred in the county where and when the demand was made, if it was the agent’s duty to account there. Brown v. State, 23 Tex. App., 214; Reg. v. Murdock, 2 Den. C. C., 298.

No case was cited by counsel, and none has fallen under our observation, wherein it has been held that a demand upon an agent and refusal or failure to account in aiijr other county than the one in which it was the agent’s, duty to account, was sufficient to sustain venue, if it appeared that he actually converted the money elsewhere. Courts in considering demands and failure to account as affecting venue, have, with a great deal of uniformity, laid stress upon the circumstance that they occurred in the county where it was the agent’s duty to account. Campbell v. The State, 35 Ohio St., 70. In this case last cited, this court held that, if in a prosecution for embezzlement, the defendant was shown to have had the monéy of his principals in the county where it was his duty to account, it was no defense for him to show that he had expended the money in another county. Yet there can be no doubt that if he had absolutely and fraudulently converted the money to his own use in the latter county, venue could have laid there.

It is the defendant’s duty to account, together with his neglect or refusal to do so, that constitutes the fraudulent breach of duty. A demand at a place when and where he owes no duty is, of itself, not enough. The defendant’s obligation was to account to his employers at Toledo, in Rucas county. This obligation pressed upon him with equal force whether he was within or without the count3r; his refusal, neglect, or omission to discharge this duty, may be as clearly manifested by silence and the circumstance of his absence, or by letter, as by spoken words, unless there is some magic in personal presence. That the presence of the offender within the county, when a crime is committed, is not always necessary to give jurisdiction, is a settled principle. Norris v. The State, 25 Ohio St., 217.

In a late and well considered English case, it was held that the sending of a letter by the defaulting employe, from another county to his employers, and its receipt by them in the county where it was his duty to account, was sufficient to give jurisdiction. The Queen v. Rodgers, 3 L. R. Q. B. Div., 28.

The question is by no means free from difficulty, but we think the weight of authority as well as of reason, authorize us to hold that the making of the contract in Tucas county, the express duty it imposed upon the defendant to account weekly to his employers there, either in person or by letter, together with the fact that he did report to them falsely by letter, which they received, constituted such integral and essential parts of the transaction as entitle venue to be laid in Tucas county.

Exceptions sustained.

The' prosecuting attorney also requested the court to charge the jury that the making of the contract in Tucas county, the duty to account to his employers there, and his failure to perform, his duty, were of themselves sufficient to give jurisdiction of the offense to Tucas county. Without passing upon the merits of this proposition, we think, upon the facts disclosed by the record, it was an abstract proposition, and upon that ground, if no other, the refusal of the court to give the proposition to the jury should be sustained.

Exceptions sustained.


author: By the Court.

text:
    Shaub v. Smith et al.

      Competency of witnesses.

    Aj agent of a vendor who makes a sale of goods for kis principal, is not rendered incompetent to testify as a witness to the circumstances of the transaction because of the decease of the vendee.
    (Decided December 5, 1893.)
    Error to the Circuit Court of Knox county.
    Action in replevin was brought by defendants in error against plaintiff in error, as administrator of Michael Earnest, deceased, to recover possession of a quantity of boots and shoes. At the trial the plaintiff offered one W. S. Freeman as a witness, and proposed to prove the sale of the goods by him to the deceased and certain representations made by the deceased at the time as to his financial standing. An objection by the defendant, on the ground that the witness was incompetent, was sustained by the court, and, because of this ruling, the judgment of the common pleas was reversed by the circuit court.

      J. B. Waight, for plaintiff in error.
   By the Court.

It is insisted by the counsel for the plaintiff in error that, under that clause of section 6242, Revised Statutes, which provides that “ when a case is plainly within the reason and spirit of the last three sections, though not within the strict letter, their principles shall be applied,” the agent of the vendor was incompetent to testify as to conversations with the deceased, and the Common pleas so held.

We cannot assent to this proposition, and are of the opinion that the common pleas erred in its holding, and that its judgment was properly reversed.

Judgment affirmed.


author: By the CouiH.

text:
    Ex Parte Peter Clark and James Clark.

      Imprisonment in Penitentiary—Sentence—“ Hard labor ”—Duty of Court as to.

    Under section 6799 of tke Revised Statutes, the court sentencing a person convicted of a crime punishable by imprisonment in the penitentiary, is authorized and required to declare in the sentence for -what period he shall be kept at hard labor, and for what period, if any, he shall be kept in solitary confinement, and render judgment against him for the costs of prosecution.
    (Decided December 5, 1893.)
    Habeas Corpus.
    In the return to the writ issued in the case, the warden of the penitentiary, where the petitioners are imprisoned, shows they are held under sentence of the court of common pleas of Eawrence county for the crime of burglarju It appears from the authenticated copy of the record attached to the return, that on the 12th day of June, 1893, the petitioners, after trial and conviction, were each sentenced to imprisonment in the penitentiary at hard labor for the period of six years, and adjudged to pay the costs of the prosecution. 'The petitioners claim that part of the sentence which requires them to be kept at hard labor, and the judgment for costs, are without any authority of law, and being so, the entire sentence is void, and therefore they are unlawfully imprisoned.

      E. E. Roney and W. D. Conn, for petitioners.

      J. K. Richards, Attorney-General, for the state.
   By the CouiH.

Section 6835, of the Revised Statutes, provides that persons convicted of the crime of burglary “Shall be imprisoned in the penitentiary not more than ten years, nor less than'one year.” The section does not provide that any part of the imprisonment may be at hard labor, or that the costs of the prosecution may be adjudged against the defendant; and because it does not, it is claimed the sentence imposed upon the petitioners is excessive and void. By the codification of 1880, the criminal statutes are brought together in one division called, “Part Fourth,” consisting of eleven chapters, 'the first of which, under the head of “ general provisions,” contains various provisions of a general nature, by which the courts are to be governed in the construction and administration of the laws embraced in the subsequent chapters. One of these general provisions is found in section 6799, which reads as follows: “When anjr person is sentenced to imprisonment in the penitentiary, the court shall declare in its sentence for what period he shall be kept at hard labor, and for what period, if any, he shall be kept in solitary confinement without labor; and in all cases of conviction of any offense the court shall render judgment against the defendant for the costs of prosecution, including a jury fee of six dollars. ” That section clearly authorized the sentence and judgment of which the petitioners are complaining. There was no necessity for the repetition of its provisions in section 6835, to give validity to the sentence at hard labor, or the judgment for costs. We have not discovered that any of the sections of the statutes defining crimes and providing for their punishment by imprisonment in the penitentiary, contain a provision, which in terms authorizes the court to make imprisonment at hard labor a part of the sentence, or to render judgment against the defendant for costs, nor in view of section 6799 is it necessary thejr should, for by that, such authority is clearly conferred on the courts in all cases coming within its provisions.

The prisoners are remanded io the cits tody of the warden.


text:
    Railway Company v. Jump.

      Railway Companies—Ditty of, as to sounding zuhist/e and ringing bell at road crossings—Section 3336, Revised Statzites, cotistrzied.

    Section 3336, Revised Statutes, requires the engineer having in charge an engine in motion, to ring the hell and sound the whistle on approaching a place where the road crosses any highway or traveled place by a bridge or other structure.
    (Decided December 12, 1893.)
    Error, to the Circuit Court of Crawford county.
    The action below was brought by the plaintiff to recover damages for injuries caused by the negligence of the defendant. She averred that at the time she received the injuries, she was traveling on the highway in a buggy drawn by a perfectly safe horse, and had reached a point where the road of the defendant crosses the highway by a bridge over it; and just as she reached the bridge and passed under it, an extra train of the defendant, without sounding the whistle or ringing the bell or any notice whatever to her, the view being obstructed, dashed over the bridge, whereby the horse became frightened by the noise and falling of cinders upon him, upset the bugg}r and seriously injured her, without any fault on her part. The defendant denied all negligence on its párt, and claimed that the accident occurred by the negligence of the plaintiff. The jury found for the plaintiff, a motion for a new trial was made and overruled, to which the defendant excepted. The judgment was affirmed on error bjr the circuit court.

      A. W. Scott, Jacob Scroggs, and E. B. Finley, for plaintiff in error.

      F. S. MonnettzxA Isaac Cahill, for defendant in error.
   By the Court.

A number of errors are assigned upon the record; but the only one we deem it necessary to notice is that which arises upon the construction of sec. 3336, Revised Statutes, imposing the duty on the company, the neglect of which, is claimed to have caused the injury to the plaintiff. The section reads as follows : “Every company shall have attached to each locomotive engine passing upon its road, a bell of the ordinary size in use on such engines, and a steam whistle; and the engineer or person in charge of an engine in motion, and approaching a turnpike, highway, or town road crossing, upon the same level therewith, and in like manner when the road crosses any other traveled place, by bridge or otherwise, shall sound such whistle at a distance of at least eighty and not further than one hundred rods from the place of such crossing, and ring such bell continuously until the engine passes such crossing.” The residue of the section is omitted as not material. The negligence charged, is the failure of the engineer to ring the bell or sound the whistle on approaching the bridge of the road over the highway where the. accident occurred. It is claimed by the company that such duty is only required where the road crosses “a turnpike, highway or town crossing, upon the same level therewith,” and where “the road crosses an3r other traveled place, by bridge or otherwise;” and does not apply where it crosses by bridge or otherwise a turnpike, highway or town road crossing. A literal construction of the section without any regard to its evident purpose might warrant such an interpretation; but it is only in this way that such meaning can be imputed to the language employed. We are satisfied, however, from considering the language and the object of the section, the prevention of accidents at such places, that the true interpretation is, that the duty of the engineer to ring the bell and sound the whistle, is required on approaching a bridge or other structure by which the road crosses any highway or traveled place. Any other interpretation must lead to the apparently absurd conclusion, that the legislature intended that the bell should be rung and the whistle sounded wherever a railroad crosses, by a bridge, a traveled way other than a turnpike, highway, or town road crossing, though there appears to be much greater reason for the observance of such precautions at turnpikes and highways than elsewhere; and hence this apparently absurd conclusion should be rejected, and that adopted, more in accordance with the evident policy of the law, although the former may be more in accordance with a literal construction of the language of the act

Jtidgment affirmed.

Burket, J., dissents.


author: Spear, J. Minsharl, J.

text:
    Commissioners v. State ex rel.

      Constitutional law — Special legis 'ation — Conferring corporate power.

    1. The act of February, 9,1893, entitled “An act to authorize and direct the Commissioners of Hamilton county to widen and improve the Montgomery road from the north corporation line of Cincinnati to the Plainfield road, and for other purposes,” is a special act.
    2. That clause of the act which assumes to authorize the councils of the villages of Norwood and Pleasant Ridge to nominate and recommend to the commissioners two freeholders to act as trustees in the making of the contemplated improvement, is an attempt to confer upon such municipalities corporate power, and is in conflict with section 1, of article 13, of the constitution, which provides that, “the general assembly shall pass no .special act conferring corporate power.”

      3. As it appears manifest that the purposes of the act cannot he accomplished without the exercise of the power referred to, the entire act is inoperative.
    (Decided December 19, 1893.)
    Error to the Circuit Court of Hamilton county.
    The action below was brought by Christian E. Brockman, a taxpayer and owner of real estate abutting on the Montgomery road, in the county of Hamilton, in the circuit court, against the board of commissioners of that county, praying that a writ of mandamus issue commanding the board to forthwith appoint three freeholders of the county, to act as trustees under an act of February 9,1893, entitled “An act to authorize and direct the commissioners of Hamilton county to widen and improve the Montgomery road from the north corporation line of Cincinnati to the Plainfield road, and for other purposes.” It was averred in the petition, among other ' things, that, in compliance with the authority given by said act, the council of the village of Norwood, and the council of he village of Pleasant Ridge, had each duly nominated and recommended to the board a freeholder of the county as trustee, and the board had been requested to appoint the three trustees, as provided in the act, but that the board had refused to make said appointment.
    The defendants, by answer, justified their refusal on the ground that the act referred to is unconstitutional. The act is,in substance, as follows:
    Section 1 provides “That the county commissioners of Hamilton county are hereby authorized and directed to widen, grade and improve the Montgomer}'’ road, otherwise known as the Cincinnati and Montgomery turnpike, from the north corporation line of the city of Cincinnati to the Tlainfieldroad in Silverton, in the manner and means hereinafter provided in this act.”
    Section 2 gives to the commissioners exclusive final jurisdiction and power in all matters relating to the improvement, with authority to condemn all necessary property, and directs that they shall begin proceedings immediately.

      Section 3 provides that the commissioners shall proceed on the first day of May, 1893, “or as soon thereafter as practicable, appoint three freeholders of the county as trustees, one of whom shall be nominated and recommended by the council of the village of Norwood, and one by the council of the village of Pleasant Ridge.” The trustees are to be sworn, to give bond in $10,000 each, and to receive such compensation as the commissioners may allow; they are to appoint a surveyor and assistant, direct their work and fix their compensation.
    Section 4 fixes the width of the road,' and directs the trustees and surveyor to establish the grade, and the commissioners, on recommendation of the trustees, to proceed and condemn the necessary private property, and ascertain and adjust the compensation and damages to owners, and then issue and sell bonds of the county to pay the same. The trustees are to employ counsel, and assist in all suits.
    Section 5 directs the manner in which the work is to be done.
    Section 6 directs the commissioners to advertise and let the work, which is to be done under the supervision of the trustees.
    Section 7 provides in detail for the issue and sale of the necessary county bonds to meet the entire outlay.
    Section 8 directs that the costs and expense shall be apportioned on the several sections of the road, one-half of which is to be met by assessment on the property abutting, and the other half by lev}' on the general tax duplicate of the county.
    Section 9 fixes the maximum amount of cost and expense, and of the assessment.
    Section 10 directs especially the manner of levying and collecting the taxes, and section 11 provides that the act shall take effect upon its passage.
    Upon trial in the circuit court an order of mandamus was awarded. This proceeding is brought to reverse that judgment.

      Spiegel, Bromwell & Foraker, county solicitors, for plaintiffs in error.

      Foraker■ & Prior, for defendant in error.
   Spear, J.

Section 1 of article 13, of the constitution, reads, as follows: “ The general assembly shall pass no special act conferring corporate powers. ” It is this section which the plaintiff in error contends is violated by the act in question. The claim is not that the conferring of additional power on the commissioners of Hamilton county respecting the improvement contemplated by the act is inhibited by the section above quoted, but that the power to appoint, or recommend, trustees, by the village councils of Norwood and Pleasant Ridge, attempted to be given by the act, is in violation of the section. That the act is a special act there is no sort of doubt. The only question, therefore, is: Does it confer corporate power on the municipalities of Norwood and Pleasant Ridge?

It is contended, in support of the law, that, save as to the commissioners, there is no attempt to confer power at all, and if there is, it is on the councils, and not on the municipalities. Power, we think, is clearly given by section three, wherein it is provided that the commissioners shall "appoint three freeholders of the county as trustees, one of whom shall be nominated and recommended by the council of the village of Norwood and one by the council of the village of Pleasant Ridge.” Not only are the councils empowered to nominate, but they are, by the peremptory language of the clause, required to do it. The nomination thus commanded is, practically, the equivalent of an appointment. The commissioners are authorized to appoint one freeholder pot named by the councils, and one only, and nowhere in the act is authority given to appoint in case the councils fail to nominate. Nor is there doubt, as it seems to us, that whatever, by way of power, is conferred by this, language, is given to the municipalities. The council is the governing body of the corporation, its representative and legislative body as well. By its acts, and by its acts only, as a general rule, is the corporation bound. Whatever power resides in the municipality must be worked out through the council. Power, therefore, given in terms to the council, is in effect given to the municipality.

It is further contended that even if the power is found to be one exercised by the municipalities, it still is not a corporate power, because it is not to be exercised with respect to the business, or the government, or the affairs of the corporations; that the improvement contemplated has no relation whatever to the business or affairs of either corporation, but is wholly an outside and independent matter.

We think that this proposition cannot be maintained. It is proper to remark, at the outset, that the fact alone that the general assembly has undertaken to confer power on a corporate body raises a strong presumption that the power thus sought to be conferred is intended to be corporate power, and, in the absence of a clear showing to the contrary, the presumption stands. In the present case it would be presumed that the duties required of the councils do relate to the affairs of the corporations, for it would be remarkable for the legislature to attempt to impose duties upon a village council in respect to a matter in which the municipality which that body represents has no concern. If the duty here enjoined is not a corporate duty, then it is simply an advisory duty, and it is not usual to cast upon village councils duties merely advisory. Such a provision would at least be novel, and the entire scheme should be scrutinized with unusual care before a court would be justified in concluding that duties of that character had been imposed.

An examination of what is proposed to be done under this act will, we think, make it entirely clear that important business interests of the two municipalities were to be materially affected by the public improvement which is termed by counsel “an outside and independent matter.” The project is the improvement of a turnpike road running from the north corporation line of Cincinnati to a point in Silver-ton, some four and a half miles, by widening, grading, and improving the same, including necessary bridges, culverts, curbs and sidewalks. The road for the entire distance is to be widened to a uniform width of eighty feet. From the city line to Duck Creek road the driveway is to be forty-eight feet wide, and from thence to Harris avenue in Nor-wood it is to be sixty feet wide, and this portion is to be improved by laying asphaltum or brick pavement. From Harris avenue to the northern extremity, the improvement is to be by grading and macadamizing. The sidewalks are to be of concrete, and are to be six feet in width on each side of the roadway the entire distance. The expense in the first instance is to be met by bonds of the county to be issued and sold as the construction proceeds. Then one-half the costs and expense is to be assessed by the foot front upon the lands abutting thereon upon the several sections. Between the Cincinnati line and Harris avenue the cost and assessment shall not exceed ten dollars per foot front, and between Harris avenue and the Plainfield road six dollars. The remaining half of the entire cost and expense to be paid by the county of Hamilton by a tax placed upon the general duplicate.

Thus is presented a project for an extensive road improvement to be made under a special law, by county commissioners, without notice to property owners liable for assessments, or opportunity for a hearing, involving an outlay, stated by counsel and not controverted, to amount to $800,000, the work to be of a character usually made by municipalities under authority of general laws, after full notice to those to be affected, and full opportunity to be heard. It is not stated in so many words, but the fact, we think, sufficiently appears by'the record, that the turnpike thus to be improved runs through the villages of Nor-wood and Pleasant Ridge, and the effect of the act, therefore, is, among other things, to improve village streets, and to do this in an unusual way. When accomplished, the streets thus improved (including the sidewalks and any bridges), would still remain village streets, as to which, by sections 1692 and 2640, Revised Statutes, the council would have the care, supervision and control, and would be required to keep open, in repair, and free from nuisance. The plan, then, is, to conduct the improvement of these streets, by virtue of a special act of the legislature, and the agency in carrying forward the work given the municipalities is, by their councils, to appoint two of the three trustees, who are to have the immediate control. As the thing to be done includes the improvement of streets of the villages it would seem clear that the specified action of the councils does concern the business and affairs of municipalities, and that, tested by the definition of the term “corporate power” contended for by counsel for defendant in error, or by any definition given in the books, the naming of trustees by the councils is the exercise of corporate power.

The principle involved, it seems to us, is covered by the case of The State ex rel v. Cincinnati, 23 Ohio St., 455. By the act brought in review in that case the trustees of the commercial hospital were authorized to adopt rules for the government, etc., of the institution, which should be submitted to the city council of Cincinnati for approval, and when approved should have the force in law of other ordinances of the city. This court held that the effect of the act would be to put the rules and regulations for the government of the hospital under the legislative control of the city council; that the exercise of this control was corporate power, and, as the act in question was a special act, it was in conflict with section 1, article 13, of the constitution, and therefore void. As, under the provisions of the hospital act that institution could not be managed save by rules dictated by the city council, and which rules, when approved, became ordinances, thus clothing the city with power to legislate by a special act, so under this road improvement act the selection of a majority of the trustees is virtually done by the village councils, and the work of the improvement is managed by those trustees, thus in effect providing for the improvement of village streets by special act. If the. office to be performed by the city council in the hospital case was an exercise of corporate power which could not be given 'by special act, surely the action of the village councils in this case cannot be less so. See, also, The State v. Pugh, 4B Ohio St., 98, third paragraph of syllabus, and text of the' opinion of Owen, J., applicable to that paragraph.

But it is contended that even if corporate power has been conferred by the act, still the law may stand because the parts are separable, and the clause in question may be disregarded without affecting the remainder. Recurring again to the act we find a total want of authority for appointing trustees independent of nomination by the council, and of authority for carrying forward the improvement save by the action of the trustees whose appointment depends upon such nomination. The trustees are to give bond in $10,000 each, and are to receive compensation. They are to appoint a surveyor and assistants, and fix their compensation. They are to establish the grade of the road. They are to recommend*to the commissioners the private property necessary tobe condemned, and are to employ counsel to prepare condemnation suits, and assist in the prosecution of the same. They are to estimate the cost of the improvement, and report to the commissioners, and are to supervise the work. In short, they are to build the road. These acts are indispensable. Without their performance by somebody the work cannot be done, and as the authority given the commissioners, to be found in the first section of the act, is to improve “ in the manner and means hereinafter provided,” and as the means above described are the only means provided, it seems evident that if those means fail the whole enterprise must also fail. Indeed, looking at the purpose and scope of the act, it is apparent that, but for the provision for the selection of trustees by the village councils, the act would not have been passed.

We do not forget the ancient rule that all presumptions are in favor of the constitutionality of acts of the legislature, and suppose that the presumption still stands notwithstanding an apparent popular belief to the contrary. But when the court is clearly of opinion that an act is in conflict with the constitution, the duty to so declare is imperative. We are clearly satisfied that this act assumes to confer corporate power on the municipalities of Norwood and Pleasant Ridge, and is thus in conflict with section 1, of article 13, of the constitution. We are also satisfied that without the exercise of those powers the purposes of the act cannot be carried out, and that, therefore, the act is inoperative.

Still other objections to the act, equally fatal, as we think, exist. This opinion undertakes to deal only with such questions as were argued by counsel.

foidgment reversed and petition dismissed.

Minsharl, J.

I concur in the judgment that tne act is invalid on the ground stated in the opinion; and, for the further reason, that it is not competent to the legislature to enact a statute by which it is directed that a certain road shall be laid out and improved in a specified manner, and the cost assessed-upon the abutting property holders, without any discretion in the local authorities, or desire on the part of those to be assessed. An 'act of this kind is not properly a law; it is an order made in the exercise of a power, that is not legislative in character. It belongs under our system of government to administrative officers, such as township trustees, county commissioners, and officers and boards possessing similar functions. It is competent to the legislature to confer the power; but to confer the power is one thing, and, upon its own motion, to proceed and declare that a certain highway shall be laid out and improved according to plans and specifications of its own, is a different thing. It is a usurpation of power not conferred on the legislature, and cannot be checked too soon. An improvement of this kind should not be ordered until after the fullest consideration of its necessity, its cost, and the ability of those who are to be assessed to sustain the burden. Such consideration can only be had before the proper local authorities on a fair opportunity^ being given to those interested to be heard. A statute that does not afford this opportunity^, deprives the citizen of his property without due process of law, and is therefore void. Whilst the courts confess their inability to define with comprehensive accuracy, the meaning of the phrase “due process of law,” yet it is agreed that it means, “such an exercise of the powers of government as the settled maxims of the law permit and sanction, and under such safeguards of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. ” Cooleys Con. Rim. 434. And among those settled maxims none is more firmly established than, that which requires notice to the party whose property is to be affected in a case like this, and a chance to be heard upon the justice and necessity of the measure. No such notice is required by the act in question to any of the abutting property holders, nor is any chance given them to beheard in opposition to the improvement, and the large assessments that must be made upon their property to pay for the same. Certainly there can be no constitutional authority for the enactment of such a law.

Burket, J., concurs in this opinion.


author: Burket, J.

text:
    Emmitt v. Lee, et al.

      Board Public Works—Leases of surplus water and canal lands— How executed— When copies of, competent evidence.

    1. By virtue of sections 7659 and 7675-2, Revised Statutes, leases of surplus water of canals, and lands connected therewith, are required to be deposited in the office of the Board of Public Works, and to be recorded in a book to be provided for that purpose. Copies of such leases or records, duly certified by the president of the board, are made competent evidence by section 5245, Revised Statutes.
    2. Such leases, executed by the Board of Public Works, in the performance of the official duties of the board, are not required to be acknowledged before an officer.
    (Decided December 19, 1893.)

      Error to the Circuit Court of Pike count}1-.
    On the third day of August, 1889, William B. Eee, John W. Barger, James D. Corwine, Margaret H. Corwine and Keziah D. Barger, as partners under the name and style of Pee Pee Milling Company, doing business at Waverly, in Pike county, plaintiffs below, began an action against James Emmitt, defendant below, to recover possession of a small tract of land included in the lease of the surplus water of the Ohio Canal, at or near lock 44, in Pike county. The land and water right was leased by the state to James Em-mitt and David Emmitt for thirty years from May first, 1854. James Emmitt assigned all his interest in the lease, reserving the small tract of land in dispute, and he remained in possession of the reserved part from, 1854 to the commencement of this action. This lease expired on May first, 1884, and on October first, 1887, the state leased the surplus water and lands described in the former lease to the plaintiffs below, from and after May first, 1884. Having thus obtained a lease from the state for the whole tract, including the small tract so in the possession of Mr. Emmitt, the defendants began an action against him for the possession of the small tract so occupied by him, and for damages.
    Upon trial of the case to a jury, plaintiffs below, to make out their title, offered in evidence a certified copy of the lease to them from the state, dated October first, 1887. The defendant objected to the introduction of this copy as evidence, but his objection was overruled, and the copy was received, to which he excepted. A verdict was returned in favor of plaintiffs below for the possession of the small tract of land, and for $75.00 damages.
    A motion was made for a new trial, which was overruled, and exceptions taken, and judgment was entered on the verdict.
    The circuit court affirmed the judgment.
    This petition in error is filed in this court, seeking to reverse the judgment of both courts below.

      John A. Eylar and William D. James, for plaintiff in error.

      The trial court erred in overruling the objection of the plaintiff in error to the introduction of the lease of October,. 1887. 1 Greenl. Ev., Sec. 557, 569; Sections 5, 3238 and 4143, Revised Statutes.
    It is a well settled principle that a legal title is the only-title on which a suit of ejectment can be maintained, and that a deed or lease which is not executed according to law, does not convey a legal title. Section 5781, Revised Statutes; Smith's Lessees v. Hunt, 13 Ohio, 260, 68; 1 Nash,. 1202-3, 1215; Morton v. Green, 2 Neb., 79; 1 Bates’ Pl., 431; Atkinson v. Dailey, 2 Ohio, 213; Section 4106, Revised Statutes; Richardson v. Bates, 8 Ohio St., 257; Martindale on Conveyance, p. 224, Sec. 250; Lessees of Foster v. Dennison, 9 Ohio, 121.
    The law makes no distinction between corporations, quasi' corporations, and individuals, as to the manner of executing-leases. Martindale on Conveyances, Sec. 253, p. 22; Atkinson v. Dailey, supra; Williams on Real Estate and Conveyances, p. 393; 6 Page, 60; Ames and Angell on Corporations, Sec. 193; Dillion on Mun. Corp., Sec. 580, p. 57, N. S.; Kelly v. Calhoun, 95 U. S. 710; Morrill. Montgomery, 25 Mich., 73; Phillips v. Coffee, 17 Ill., 154; Sawyer v. Cox,. 63 Ill., 133; Minors Ditch Co. v. Zallerbach, 37 Col., 643.

      John T. Moore and John W. Washburn, for defendants' in error.
    Did the common pleas err in premitting the lease of 1887 to go to the jury?
    The lease, though apparantly a conveyance, is really a license in writing to use so much surplus water and so much land for any period not exceeding thirty years from May 1, 1854, unless sooner revoked. So, though it is called a lease in the statute, it means “license,” a license to use, exclusively, and the law does not require that it should be either acknowledged or recorded.
    It is insisted by plaintiff in error that the law does not require these water leases to be deposited in the office of the board of public works, and hence, that the attestation of the president of the board does not make the lease competent, nor bring it within the statute. Sec. 5245.
    The law does require all leases in which the state is interested to be deposited in the office of the board. The president must furnish the auditor of state with attested copies of all leases of water power, and to each collector of tolls an attested copy of such lease, or any lease, the tolls of which are to be taken by such collector. Revised Statutes, Sec. 7659.
    All leases in which the state has an interest are to be recorded in the office of the board of public works. Revised Statutes, 7675-2.
    Plaintiff in error admitted in open court that the certificate to said lease was signed by the president of the board, in due form, and authenticated by the seal of said board.
    Thus, it appears, the lease was found in the proper depositary, was properly certified and attested as admitted by plaintiff in error, and there was no error in permitting it to go to the jury. ■
   Burket, J.

The plaintiff in error relies on four alleged errors for the reversal of the judgments; only one of which is deemed worthy of notice here.

It is claimed that the court erred in allowing plaintiffs below to introduce the copy of the lease of October 1, 1887, to the jury as evidence to support their title.

The copy of the lease was duly certified by the president of the board of public works, under the seal of the board, and the objection is based upon the mistaken notion, that there is no statute, authorizing such leases to be deposited or recorded in the office of the board of public works.

Section two of the act of February 8, 1847, now section 7675-2, Revised Statutes, provides:

“That all leases deposited in the office of the board of public works, in which the state is interested, shall be recorded in suitable books to be provided for that purpose.”

Sections 7659 and 7775, authorize the board of public works to lease the surplus water of the canals and state lands connected therewith; and there being no requirement or authority for the deposit of the leases elsewhere, and the president of the board being required by section 7659, to furnish to the auditor of state attested copies of all such leases, and being also required to furnish attested copies of such leases to that collector of tolls whose duty it is to collect the tolls provided for in the lease, it follows that such leases must necessarily remain on deposit in the office of the board of public works. And being deposited in the office of the board, they are required to be recorded'in the record of the board kept for that purpose.

The certificate of the president of the board, attached to the copy of the lease in question, shows that the copy is from the original lease on file in the office of the board, and recorded in the record of the board.

Such a copy is clearly within the provisions of section 5245, Revised Statutes, and is competent evidence.

Another and further objection is made to the competency of this lease as evidence, based on the ground that the officer who signed the lease, on the part of the state, did not also acknowledge the same before a justice of the peace, or other officer, as is required in the execution of deeds by private individuals.

■ This objection is not wTell taken. There is no statute requiring state officers to acknowledge deeds and other like instruments by them executed, in the performance of their official duties. And no good reason can be given, why a state officer should go before a justice of the peace or notary public, and make an acknowledgment to the effect that he has-performed his official duties voluntarily. The uniform course of business has been for the board of public works to execute such leases without acknowledgment, and we think such course is fully warranted by law.

The plaintiff in error cites, and relies upon, the case of Atkinson v. Dailey, 2 Ohio, 213, to show that the lease of 1887 was invalid for want of an acknowledgment.

The lease in question in that case was made bjr the trustees of an original surveyed township.

The act authorizing the trustees to make the lease, required that the lease should be recorded by the county recorder, and, as under the act of February 24, 1820, such lease was not entitled to record unless acknowledged, the court held that to make such lease valid it must be acknowledged by the trustees before a justice of the peace, or other officer.

While the statute, which authorized the trustees of an original surveyed township to make leases, required such leases to be recorded in the office of the county recorder, the statute authorizing the board of public works to make leases does not require such leases to be recorded in the county recorder’s office, but requires them to be recorded in the office of the board of public works.

It is, therefore, plain that the statutory provisions and considerations which induced the decision in Atkinson v. Dailey, cannot be made applicable to this case.

The other three alleged errors are not well taken, and are so well settled against the plaintiff in error by other cases, as not to require any report here. The judgment of the circuit court is therefore

. Affirmed.